New York State Court of Claims

New York State Court of Claims

DIAZ v. THE STATE OF NEW YORK, #2006-036-008, Claim No. 104019


Prison inmate was not afforded his right to call witnesses at disciplinary hearing and tape of hearing was not available, as the regulations require. Thus, State was not entitled to immunity and the court found that if claimant had been allowed to call witnesses, he would not have been convicted of disciplinary charge. Damages awarded for loss of privileges resulting from wrongful conviction.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
RAMON DIAZ, pro se
Defendant’s attorney:
ELIOT SPITZER, ATTORNEY GENERALBy: Joseph Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 20, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for 28 days of alleged excessive wrongful confinement to his cell (keeplock) at Elmira Correctional Facility arising from charges of drug use that were made on November 9, 2000 and dismissed by the Superintendent of the facility on December 5, 2000.
Claimant testified that on October 23, 2000, during the noontime meal, a piece of meat became lodged in his esophagus. He was taken to emergency sick call and was told he had heartburn and given medication. He could not sleep at all that night so he went to sick call again during the night stating that he had food stuck in his esophagus. He was told to return in the morning, and when he did so an x-ray was taken which showed a piece of meat stuck at the opening of his stomach.
Claimant then was taken to Arnot Ogden Medical Center where an esophagram confirmed that his esophagus was completely obstructed and a surgical procedure was subsequently performed to remove the piece of meat (see Exhibit “2E”). In connection with that procedure, claimant was administered Atropine, Hurricaine, Demerol and Versed (id.). The procedure was successful and claimant was returned to his cell on the honor block at Elmira after a stay in the infirmary.
Claimant was scheduled to participate in the Family Reunion Program, which required administration of a urine test. He testified that on November 8, 2000, when the officer came to get a sample for the test, he told the officer he had received narcotics in the hospital and that his test would be positive for opiates, which it was. Part of the records of the test was a statement from a Technical Unit Officer (whose signature was illegible) who wrote that he “checked on all the medications that this inmate has received in the last 30 days at this facilities [sic] hospital . . . and have determined that none of his medications has caused a false positive” (Exhibit “2F” [emphasis supplied]).
Claimant was issued an Inmate Misbehavior report on November 9 and placed on keeplock status. A hearing was held on November 15, 2000, at which the hearing officer denied claimant’s request to call witnesses, including the officer who had administered the test. He stated that he brought a dictionary to the hearing and tried to show the hearing officer that Demerol was an opiate, that he did not take drugs and that he was given Demerol at the hospital. According to claimant, the hearing officer did not believe him. The charges against claimant were sustained. He was sentenced to 120 days’ keeplock and loss of commissary, phone, package and other privileges, and his visit with his wife was cancelled.
Claimant immediately filed an appeal from the decision. On November 29, 2000, he requested a copy of the hearing tape (see 7 NYCRR § 254.6, requiring that hearings be recorded on audiotape). On December 7, 2000, claimant received a memorandum from Superintendent Bennett stating “I received your note and by the time you get my reply, the charges will have been dismissed. We will try to make arrangements to get you moved back into honor housing where you were” (Exhibit “5”). Claimant’s request for a copy of the hearing tape, received in the facility’s F.O.I.L. office on December 1, 2000, contains the following handwritten notation on the bottom: “Hearing dismissed . . . no tape”(id.).
In his November 25, 2000 letter to Superintendent Bennett, claimant stated, as he testified at trial, that he was not allowed to call any of his witnesses, including the correction officers who administered his test and the medical personnel involved with his treatment. He wrote that he intended to offer testimony as to how long the medications he received at the hospital stay in the body but he was prevented from doing so by the hearing officer’s decisions. He also wrote that the hearing officer took it upon himself to request the opinion of a nurse who opined that the medications claimant was given stay in the body for twenty-four hours. Claimant questioned the nurse’s qualifications to render such an opinion (Exhibit “2I”).
In a one-sentence memorandum, dated December 5, 2000, responding to claimant’s letter, Superintendent Bennett wrote: “I am dismissing your Tier III hearing held on November 21, 2000, based on incomplete hearing record” (Exhibit “2J”).
Claimant testified that despite the Superintendent’s statement that he would try to make arrangements to have claimant moved back to honor block, it was not accomplished until December 1, 2001, almost one year after the charges which resulted in his removal from the block were dismissed. An October 15, 2001 memorandum to claimant from James P. Thompson, Senior Correction Counselor, states “You continue to be at the top of the list for hispanics waiting to go into Honor Block. When there is an opening you will be moved there” (Exhibit “4”).
Claimant testified that the medications he was administered at the hospital had to have been the reason for the positive urine test because he does not take drugs. Defendant presented no case at this trial and offered nothing to contradict claimant’s testimony in this regard, or in any other regard. Specifically, defendant offered no evidence indicating the medications he was administered on October 24 would have cleared his system by November 8, which was the ostensible basis for his conviction at the Tier III hearing. The written statement from the Technical Unit Officer alleging that none of the medications given to claimant at Elmira would have caused a “false positive” was inadmissible hearsay and there was no indication of this unnamed person’s qualifications to reach such a conclusion. The only conclusion supported by the evidence is that claimant’s urine tested positive for opiates as the result of his having been administered opiates in connection with his medical treatment, and the court so finds. The court further finds that claimant’s disciplinary hearing was not conducted in accordance with the procedures mandated in the DOCS Regulations (7 NYCRR Part 254), which were enacted to implement inmates’ “constitutional rights” (Laureano v Kuhlmann, 75 NY2d 141, 146), and that the immunity which arises when the applicable procedures are followed (see, Arteaga v State of New York, 72 NY2d 212 [1988]) has no applicability herein.
The relevant regulations provide that an inmate has the right to call witnesses on his behalf so long as the testimony would be relevant and not redundant, unless calling the witness would pose a threat to institutional safety or correctional goals (7 NYCRR § 254.5). Here, the hearing officer’s refusal to allow claimant to present his witnesses was unexplained and constituted “a denial of the inmate's right to call witnesses as provided in the regulations” (Barnes v LeFevre, 69 NY2d 649, 650; see also Afrika v Selsky, 199 AD2d 315 [2d Dept 1993]; Wong v Coughlin, 137 AD2d 272 [3d Dept 1988]). Based on the record at this trial, the court finds it is extremely likely that the charges against claimant would not have been sustained had he been afforded his right to call witnesses.
The regulations also require that the “entire hearing must be electronically recorded” (7 NYCRR § 254.6[a][2]). Although claimant requested a copy of the tape two weeks after the hearing, he was told that no tape existed and the Superintendent reversed his conviction and dismissed the charges because of an “incomplete hearing record.” Whatever the reason for the failure to produce the tape, it is clear that the intent of the regulation was violated.
Based on the foregoing, the court finds claimant has established a claim of wrongful excessive confinement for the 28 days of confinement to keeplock (see Ramirez v State of New York, 171 Misc 2d 677 [Ct Cl, King, J., 1997]; Gittens v State of New York, 132 Misc 2d 399 [Ct Cl, Corbett, J. [1986]) and that his damages are not limited to that 28-day period but also must take into account the year it took to restore his residency in the honor block subsequent to his release from keeplock.
The court finds that claimant was damaged in the sum of $1400 for the 28 days he spent in keeplock confinement and $3600 for the 360 days he spent in general population before he was restored to honor-block status, all of which was the direct result of his wrongful conviction on the subject disciplinary charges. The Clerk of the Court is directed to enter judgment in the amount of $5,000, and additionally providing that claimant may recover any filing fee actually paid.

June 20, 2006
New York, New York

Judge of the Court of Claims