New York State Court of Claims

New York State Court of Claims

DRONE v. THE STATE OF NEW YORK, #2007-015-560, Claim No. 111607


Inmate's claim for damages arising out of a disciplinary charge was dismissed following a trial. Inmate's claim that misbehavior report was fabricated in retaliation for a prior grievance was unsupported and discretionary conduct of correction officials was immune from liability.

Case Information

1 1.The caption of the claim is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of the claim is amended sua sponte to reflect 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:
Darryl Drone, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 26, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate acting pro se, brings this claim for damages arising out of a disciplinary charge which he contends was fabricated in retaliation for a past grievance. The matter proceeded to trial on April 18, 2007.

The Evidence Adduced At Trial

Claimant testified that on August 29, 2005 he reported to his assigned work area in the kitchen of Great Meadow Correctional Facility. While in the kitchen he prepared a snack for himself consisting of a bowl of cereal. He and another inmate were directed to eat in the mess hall by the Chief Cook, Shawn Mulholland, and another correction officer who was present. The claimant testified that the manner in which this directive was given was "disrespectful" and, now discouraged, he threw his food in the garbage. He went into the pot room where he was assigned to work and was thereafter told to report to the foyer area by a correction officer. He was instructed to face the wall and put his hands in his pockets. The claimant testified that he refused and was taken to his cell where he was confined on keeplock status for four days.

Claimant was charged with "stealing" in violation of disciplinary rule 116.10 (7 NYCRR § 270.2 [B] [17] [i]). The Inmate Misbehavior Report, which was received in evidence as Exhibit 4, was authored by Cook Mulholland and states the following:
On the above date & time I observed the above mentioned inmate in possession of 15 rations of cake & 17 rations of cereal and ½ gal. of milk. The cake ration is one. The milk and cereal ration were not on menu.
The misbehavior report reflects that it was served on the claimant on August 30, 2005, one day after the incident. A disciplinary hearing was held on September 1, 2005 at which time the hearing officer, Lieutenant Richard Armstrong, found the claimant not guilty of the charges brought against him.

On cross-examination, the claimant testified that he had filed a prior grievance against Chief Cook Mulholland during the time he worked in the mess hall. The claimant further testified that although milk, cereal and cake were not on the menu, the cooks often put cake out for the workers in the kitchen. At the conclusion of the disciplinary hearing on September 1, 2005 the claimant was released to general population.

The defendant called Chief Cook Shawn Mulholland to testify on its behalf. Cook Mulholland testified that he found the claimant in the pot room with 17 rations of cereal, which is a box of cereal, and 15 rations of cake. He stated that these items were not on the menu and were therefore stolen by the claimant. For this reason, he issued the misbehavior report, not in retaliation for any other conduct.

Defendant called Lieutenant Richard Armstrong as its next witness. Lieutenant Armstrong testified that he conducted the disciplinary hearing related to the charge of stealing, which is a Tier II offense. He testified that the claimant was provided with the misbehavior report on August 30, 2005 and that the hearing was required to commence within seven days thereafter. As reflected in the certified transcript (Exhibit B), the hearing was held on September 1, 2005, well within this time frame. Lieutenant Armstrong testified that he found the claimant not guilty of the charge although he could not recall his reasons for doing so. Lieutenant Armstrong testified that an inmate charged with a Tier II offense can be confined pending the hearing and disposition of disciplinary charges against him. However, Lieutenant Armstrong testified that box "7" of the misbehavior report (last page of Exhibit A) reflects that the claimant was not confined or restricted as the result of the charge brought against him.

There is conflicting evidence as to whether or not the claimant was in fact confined to his cell pending the hearing and determination of the charge. In addition to the indication on the misbehavior report that the claimant was not confined or restricted following the issuance of the report, the inmate grievance committee responded to the claimant's grievance filed on September 6, 2005 that "grievant was not confined at any time for this issue, and the misbehavior report was dismissed" (Exhibit 3). In contradiction to this evidence, however, is the claimant's trial testimony and a memorandum from Captain Kelly dated August 31, 2005 in which he states: "According to available records, you are confined pending a Tier II hearing for a report issued by Cook Mulholland" (Exhibit 2).

The Applicable Law

It is well-settled that conduct of correction facility employees taken in furtherance of authorized disciplinary measures is quasi-judicial in nature and entitled to absolute immunity (Arteaga v State of New York, 72 NY2d 212 [1988]). Unlike qualified immunity, which shields the State from suit except when conduct is taken in bad faith or without reasonable basis, absolute immunity shields the government from liability regardless of the reasonableness of the conduct complained of or the motivation behind it (id. at 216). As stated by the Court in Arteaga (at p. 220), important policy reasons underlie the application of absolute immunity for the conduct of correction employees:
Because of the unquestioned risks to inmates, employees, and the public from a breakdown in order and discipline in correctional facilities . . . it is particularly important that correction officers not be dissuaded by the possibility of litigation from making the difficult decisions which their duties demand. Nor should correction personnel acting as reviewing officers feel reluctant to reverse hearing determinations because doing so might expose the State to liability.

The Arteaga Court was careful to point out, however, that giving full immunity to the conduct of correction employees will not deprive inmates of their right to recover damages for "unlawful actions of employees taken beyond their authority or in violation of the governing rules and regulation" (id. at 220; see also Mitchell v State of New York, 32 AD3d 594 [2006]; Holloway v State of New York, 285 AD2d 765 [2001] ). Thus, the Arteaga Court made clear that the State is not immune from liability for "actions of correction personnel in physically abusing inmates (see Correction Law § 137[5]) or in confining them without granting a hearing or other required due process safeguard (see, 7 NYCRR 251-5.1; parts 252-254)..." (id. at 221 ).

The evidence presented in this case fails to support the allegation that the misbehavior report was fabricated in retaliation for a prior grievance allegedly filed by the claimant against Chief Cook Mulholland. Other than the claimant's fleeting mention of a prior grievance he filed when he worked in the mess hall, no evidence was presented from which this Court could reasonably conclude that the misbehavior report was written for the purposes of retaliation or revenge. Rather, in Chief Cook Mulholland's view, claimant was stealing food because it was not on the menu for the day.

The Court need not resolve the factual controversy as to whether or not the claimant was confined to his cell pending the hearing officer's determination of the charge. Whether the claimant was or was not so confined, there is no evidence that the defendant acted in violation of any applicable rule, regulation or in the absence of authority. The hearing was timely conducted within seven days of the alleged confinement and completed within fourteen days of the writing of the misbehavior report (7 NYCRR § 251-5.1 [a] and [b]). As related by Lieutenant Armstrong, confinement pending disposition of the disciplinary charges is permissible and, under the applicable regulation, discretionary ( 7 NYCRR § 251-1.6). Crediting for the sake of argument the claimant's testimony and evidence that he was confined to his cell for four days, the decision to so confine him was an exercise of discretion for which the State has absolute immunity (Holloway v State of New York, 285 AD2d 765 [2001]).


Based on the evidence adduced at trial, the claim is dismissed on the ground that the State has absolute immunity for the conduct complained of. The Clerk is directed to enter judgment for the defendant.

June 26, 2007
Saratoga Springs, New York

Judge of the Court of Claims