New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2006-028-008, Claim No. 102781


Although testimony at trial established that prison officials violated one of the non-discretionary rules governing disciplinary hearings, there was a total absence of any proof that the violation altered the outcome of the hearing and, consequently, Claimant failed to establish that it caused any actual injury or loss.

Case Information

LAZARO RIVERA The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Geoffrey B. Rossi, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 8, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

At trial of this action, held at Elmira Correctional Facility, Claimant Lazaro Rivera testified that on February 7, 1998 he was involved in a fight at Elmira Correctional Facility. On February 23, 1998, he was sentenced to one year (365 days) in "the box" (Special Housing Unit). Although his conviction and sentence were upheld on appeal within the Department of Correctional Services (DOCS) and confirmed by the Third Department in an article 78 proceeding (
Rivera v Goord, 267 AD2d 521 [3d Dept 1999]), they were ultimately administratively reversed in January 2000.[1]
The charge against Claimant was that he had been fighting with a weapon, but he continues to maintain that he had no knowledge of where the weapon came from. Claimant asserts that he was unlawfully sentenced to SHU because a witness, another inmate, whom he sought to have at the hearing, was not called to testify. Claimant told Correction Officer Ducot, who had been assigned to be Claimant's assistant during the proceeding, to approach the witness and ask that he testify. The officer did so but, reportedly, was told that the witness did not want to become involved. According to Claimant, "If they had brought the witness to the hearing, I wouldn't have made this claim and I wouldn't have suffered a year in confinement."[2]
As a result of his year-long confinement, Claimant testified, he began experiencing emotional distress to the point that he had to receive psychiatric treatment and take medication.
Deputy Superintendent William J. Hopkins testified that he serves, and has served for a number of years, as the deputy superintendent for administrative services at Elmira Correctional Facility and that he also serves frequently as a disciplinary hearing officer. He presided at Claimant's February 1998 hearing and confirmed for himself, by discussing it with Correction Officer Ducot, that the witness had refused to testify. According to Deputy Superintendent Hopkins, to the best of his knowledge, the rules and regulations of DOCS applicable to disciplinary hearings contain no mechanism akin to subpoena power for compelling the testimony of unwilling inmate witnesses.

The claim sets forth three causes of action: violation of Claimant's procedural due process rights, false imprisonment, and violation of his substantive due process rights. The first and third causes of action are based on alleged violation of rights secured by the United States and/or the New York State Constitution, neither of which may be maintained in this situation. Civil actions seeking to enforce rights created by the United States Constitution are governed by 42 USC
§ 1983, and the State of New York is not a "person" ammenable to suit under this statute (Will v Michigan Dept. of State Police, 491 US 58 [1989]; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]; Zagarella v State of New York, 149 AD2d 503 [2d Dept 1989]; Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]). With respect to tort actions arising from alleged violation of the New York State Constitution, these may be maintained only when: (1) the constitutional provision is self-executing; (2) the substantive right is firmly established; (3) the implied tort is necessary or appropriate to ensure the effectiveness of the provision; and (4) the claimant has no common law or statutory remedy available to him (see Brown v State of New York, 89 NY2d 172 [1996]; Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]; Remley v State of New York, 174 Misc 2d 523, 526 [Ct Cl 1997]). Here, as indicated below, Claimant had an adequate available remedy in the form of a cause of action for wrongful confinement/false imprisonment.
An inmate who is unlawfully removed from a prison's general population and placed in punitive segregation such as SHU or keeplock may have a cause of action for monetary damages (
see e.g. Wilkinson v Skinner, 34 NY2d 53). Such a cause of action has roots in due process considerations (Wilkinson v Skinner, supra; Edmonson v State of New York, 132 Misc 2d 452, 455 [CtCl 1986]; see also Arteaga v State of New York, 72 NY2d 212, 221[1988]) and it is also recognized as "a ‘species' of false imprisonment" (Ramirez v State of New York, 171 Misc 2d 677, 682 [Ct Cl 1997]).
Where, however, the confinement is imposed in connection with a disciplinary proceeding, the State is absolutely immune from claims for money damages as long as those proceedings were conducted in accordance with the rules and procedures established by DOCS. This is true even if the underlying disciplinary charges are later reversed administratively or as the result of a successful article 78 proceeding
(Arteaga v State of New York, supra; Davis v State of New York, 262 AD2d 887[3d Dept 1999], lv denied 93 NY2d 819 [1999]). Claimant's position in this claim is that he is entitled to recover for the injuries caused by the year of more restrictive confinement because there was error in the conduct of his disciplinary hearing: the hearing officer's failure to obtain the testimony of the inmate witness as requested by Claimant.
The DOCS regulation relevant to witnesses at inmate disciplinary hearings is 7 NYCRR § 254.5, which provides that inmates may call witnesses on their behalf as long as their testimony is material and not redundant, that the hearing officer may deny permission to call witnesses if he does so in a written statement given to the inmate against whom charges have been brought

(subd a), that such witnesses may be allowed to testify in the presence of the inmate unless that poses a threat to institutional safety or correctional goals. A witness statement may be taken out of the presence of the inmate in appropriate situations (subd b). The rule is silent as to whether DOCS officials have the power to require an inmate to appear and testify at another inmate's disciplinary proceeding.
Case law establishes, however, that a hearing officer must take action and make a meaningful effort to obtain testimony from a witness when it has been requested:
[W]here the record does not reflect any reason for the witness' [sic] refusal to testify, or that any inquiry was made of him as to why he refused or that the hearing officer communicated with the witness to verify his refusal to testify, there has been a denial of the inmate's right to call witnesses as provided in the regulations.
(Barnes v LeFevre, 69 NY2d 649, 650 [1986]; see also Contras v Coughlin, 199 AD2d 601 [3d Dept 1993]; Afrika v Selsky, 199 AD2d 315 [2d Dept 1993]; Silva v Scully 138 AD2d 717 [2d Dept 1988]; Crippen v Coughlin 109 AD2d 951 [3d Dept 1985].) In the instant case, it does not appear that the deputy superintendent made any effort to determine if the witness's proposed testimony would be relevant, to personally verify that the witness was refusing to testify, to inquire into the witness's reason for such refusal, or to determine if there might not be alternative ways to obtain the information that the witness might possess. In this Court's view, it appears that there was a violation of Claimant's right to call witnesses pursuant to 7 NYCRR §254.5. Had the deputy superintendent taken these steps and then determined that the witness's testimony would be irrelevant or cumulative, or that safety concerns were stronger than the need for such testimony, a decision of that nature would be the type of discretionary, quasi-judicial action that is entitled to absolute immunity (see Arteaga v State of New York, supra). On the other hand, failure to take the concrete steps that have been outlined in a number of court decisions and to inquire, thereby obtaining the information needed to make such a discretionary determination, is a violation of a ministerial duty and, as such, could potentially result in liability and an award of money damages (see Claudio v State of New York, Ct Cl, Claim No. 104545, Motion No. M-68866, dated Nov. 22, 2004, Hard, J. [UID #2004-032-103]).
That is not the end of the inquiry, however. Before a violation of one of the rules or regulations governing prison disciplinary hearings can become the basis for an award of money damages from the State, it must be established that the violation caused actual injury to the inmate. In
Vasquez v State of New York (10 AD3d 825 [3d Dept 2004), for example, an inmate's infraction was incorrectly designated for a Tier III hearing rather than a less serious Tier II hearing. Dismissal of the claim was upheld, however, because there had been no prejudice to the claimant because the penalty actually imposed on him fell within Tier II guidelines. Similarly, in Henderson v Coughlin (163 Misc 2d 20 [Ct Cl 1994]), correction officials failed to hold a disciplinary hearing within the relevant time period established by DOCS regulations. When he received a belated hearing, however, the charges against him were sustained. The late Judge Gerard M. Weisberg held that "[i]nasmuch as there was no evidence that the same result would not have been obtained had the hearing been held in a timely manner," the inmate had not been harmed by the delay. This is consistent with the general rule that to recover money damages in tort claims actual loss must be demonstrated (see discussion in Barrett v State of New York, Ct Cl, Claim No. None, Motion No. M-60959, dated June 30, 2000, Read, J. [UID #2000-001-036]).
In order to prove actual loss in the instant claim, Claimant was obliged to establish by competent, admissible proof the statement that he made during trial: that if the witness had been called to testify, Claimant would not have been found guilty and, consequently, would not have been sentenced to 365 days in SHU. Unless the outcome of the disciplinary hearing would have been different had the violation of 7 NYCRR § 254.5 not occurred, the hearing officer's failure to take further steps in an effort to secure the witness's testimony or at least determine if it was relevant caused no compensable harm to Claimant. To state it simply, any money damages awarded to Claimant for the days that he spent in SHU would constitute a windfall, not compensation, if he would have been sentenced to SHU in any event. Without any proof that Defendant's failure to carry out a duty owed to Claimant likely caused him any actual harm, there can be no recovery.[3]

The Chief Clerk is directed to enter judgment in favor of Defendant, dismissing the claim.

Let judgment be entered accordingly.

February 8, 2006
Albany, New York

Judge of the Court of Claims

[1] According to defense counsel, the reason for the administrative reversal was that Claimant had not been given a copy of the hearing decision written in Spanish.
[2] All quotations are from the Court's trial notes or the electronic record of the proceeding.
[3] The Court recognizes the difficulty inherent in requiring a litigant to go back in the past to prove "what would have happened" if different events had taken place. Without, at the very least, some indication of what the witness' testimony would have been, it is simply impossible for the Court to assess in any meaningful way the effect that this rule violation may have had on the outcome of the hearing.