New York State Court of Claims

New York State Court of Claims

OCASIO v. THE STATE OF NEW YORK, #2007-031-508, Claim No. 110308


Claimant failed to demonstrate a violation of due process at his disciplinary hearing. Claim dismissed.

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:
Defendant’s attorney:
New York State Attorney General
BY: TIMOTHY P. MULVEY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 28, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Victor Ocasio (“Claimant”) filed claim number 110308 on January 5, 2005, alleging wrongful confinement, cruel and unusual punishment (New York State Constitution) and deprivation of liberty without due process. I held a trial on this matter on May 11, 2007 at Auburn Correctional Facility (“Auburn”).

The following facts were agreed to by Claimant and Defendant. Claimant was given a citation for a disciplinary violation while at Auburn and a disciplinary hearing was held on August 12, 2004. At the conclusion of the hearing, the Hearing Officer found Claimant guilty and sentenced Claimant to 18 months in a Special Housing Unit (“SHU”). Claimant was transferred to Southport Correctional Facility (“Southport”) to serve his SHU sentence. Subsequently, on October 19, 2004, Claimant’s disciplinary determination was reversed by Donald Selsky, the Director of Special Housing and Inmate Discipline for the New York State Department of Correctional Services.

Claimant testified that his illegal confinement lasted from August 12, 2004 to November 9, 2004. He was particularly aggrieved by being in “transit status” at Auburn, commencing on November 2, 2004, after being transported back from Southport. He stated he is entitled to recover for the whole period because he never had an opportunity to be present at his hearing, which denied him his due process rights. Claimant testified that he appealed to Mr. Selsky on that basis (Exhibit 1, Claimant’s Appeal) and, therefore, assumed his hearing determination was reversed on those grounds. Claimant stated that he had injured his back and, when he requested a wheelchair, the escort officer considered his request as a refusal to attend.

The Defendant called the Tier 3 Escort Officer, Officer Christopher Clark. Officer Clark explained the process for taking inmates to their hearings. He stated that he receives a list of inmates and calls their respective housing units with their names. The officers on the housing units inform the inmates and tell them to get ready. Officer Clark then goes to the various cellblocks to escort each inmate to his hearing. He also helps with security and document handling.

Officer Clark was trained to handle inmates who refuse to attend their hearings. The inmates are asked to sign a refusal form if they decide not to attend. If an inmate refuses to sign the form, Officer Clark would bring another officer to witness the refusal and then both officers sign the form. An inmate can have a legitimate medical excuse for not attending his hearing. To determine if an excuse is legitimate, Officer Clark looks for documentation from the medical staff or at least confirmation from the inmates’s block officer. For example, if an inmate were too ill to attend his hearing, he would also most likely have a medical authorization releasing him from work, and directing that his meals be delivered to his cell. If an inmate tells him he is physically unable to attend but has no other support for his assertion, Officer Clark, in his discretion, can choose to believe him or not. In either case, Officer Clark would then call the Hearing Officer and explain the problem.

Officer Clark had no personal recollection of Claimant or the facts and circumstances surrounding Claimant’s refusal to attend the hearing. Officer Clark, however, did sign an “Inmate Exclusion From/Refusal to Attend Hearing” form on August 12, 2004 noting that Claimant refused to sign it. Pursuant to the protocols described, Officer Clark had another officer sign as a witness as well (Exhibit A).

The Defendant also called Officer Laurence Cheney, the Liaison Officer responsible for litigation at Auburn. Officer Cheney testified about how their disciplinary hearings are recorded, how the audiotapes can be requested by inmates and what happens when hearings are expunged. Officer Cheney stated that someone made a Freedom of Information Law (“FOIL”) request for the audiotape of Claimant’s disciplinary hearing, but he cannot recall who. Typically, hearings are recorded on a 60 minute cassette tape - an analog voice recording. When Officer Cheney receives a FOIL request, he makes a copy of the 60 minute audiotape, keeps the original tape in his office and notes it in his index. Here, Officer Cheney stated the Auburn staff could not find the original audiotape of Claimant’s hearing and therefore could not send it to Mr. Selsky for purposes of reversing Claimant’s hearing. In fact, Mr. Selsky reversed Claimant’s hearing and expunged the file because Auburn was unable to produce the original hearing tape (Exhibit B).

The actions of prison personnel involving inmate disciplinary matters are quasi-judicial and, unless they exceed the scope of their authority or violate applicable rules, are afforded absolute immunity (Arteaga v State of New York, 72 NY2d 212; Davis v State of New York, 262 AD2d 887, lv denied 93 NY2d 819). If Defendant violated its own rules and regulations in conducting the hearing, or otherwise acted outside the sphere of privileged actions, this immunity is lost (Arteaga v State of New York, supra; Holloway v State of New York, 285 AD2d 765; cf. Gittens v State of New York, 132 Misc 2d 399). The fact that the disposition from a disciplinary hearing is later reversed does not necessarily remove the matter from the blanket of immunity (Arteaga v State of New York, supra; Bonacorsa v State of New York, Ct Cl, May 31, 1994 [Claim No. 86522], Bell, J.). The question then is whether Claimant can demonstrate that the hearing was conducted in violation of his due process rights.

Claimant’s allegations are that the hearing was not conducted in accordance with applicable rules and regulations. According to Claimant, he was unable to attend his disciplinary hearing for medical reasons, but the hearing officer went on without him. Claimant alleges that this was the basis for the determination being overturned (that he did not knowingly and intentionally waive his right to be present at the hearing). Defendant demonstrated, however, through the testimony of Officer Cheney, that Claimant’s hearing was not overturned because Claimant was denied the right to be present at his hearing, but rather because staff at Auburn lost the audiotape recording of Claimant’s hearing. For this reason, the hearing could not be reviewed on the merits. Defendant’s Exhibit B, a memorandum from Donald Selsky, confirms Mr. Cheney’s testimony. That document indicates that Claimant’s disciplinary determination was reversed and expunged because “THE FACILITY FAILED TO PRESERVE THE TAPE RECORDING OF HEARING.”

I find that Claimant has failed to demonstrate that Defendant violated Claimant’s due process rights by holding the hearing in his absence. Contrary to Claimant’s assertions, there is no proof that Claimant was, in fact, unable to attend his disciplinary hearing for medical reasons. The proof Claimant offers, Exhibit 1, contains only an entry on his Ambulatory Health Record (“AHR”) that he complained of back pain and refused Motrin the day before the hearing, August 11, 2004. Not only is an inmate’s AHR not something that the escort officer would consult when determining whether an inmate is medically unfit to attend a hearing, but there is no indication that a medical care provider determined that Claimant had any medical disability whatsoever. Accordingly, I find that Officer Clark was justified in his determination that Claimant’s failure to attend the hearing was voluntary.

I note that, in his claim, Mr. Ocasio asserts that Defendant failed to release him in a timely manner after his disciplinary hearing was expunged on October 19, 2004. Once Claimant’s disciplinary hearing was reversed, the State’s confinement of Claimant was no longer protected by absolute immunity (Minieri v State of New York, 204 AD2d 982). The release of an inmate from disciplinary confinement is a ministerial duty, the negligent performance of which can result in the State being cast in damages (Kagan v State of New York, 221 AD2d 7). However, the fact that Claimant was not immediately released from SHU confinement does not necessarily mean that the State failed to adequately fulfill its ministerial responsibilities. At trial, Claimant offered no proof on this issue whatsoever. Accordingly, I find that he has failed to meet his burden of demonstrating that Defendant negligently failed to release him from SHU in a timely manner.

Claimant did, however, argue that he should be compensated for the dates between November 2 and November 9, 2004, during which he was held in “transit status” at Auburn. During this time, he was housed in a double bunk cell and was not able to enjoy many of the benefits of general population inmates, for example, access to the law library and recreation. This argument, however, relates to the conditions of Mr. Ocasio’s confinement and, generally, living conditions and the quality of life within prison facilities are issues for which this Court has no jurisdiction (see e.g. Ford v State of New York, Ct Cl, August 7, 2001 [Claim No. 96731], Corbett, J.).

Accordingly, Claim No. 110308 is hereby DISMISSED.

Any and all motions on which the Court may have previously reserved decision are hereby denied.

Let judgment be entered accordingly.

September 28, 2007
Rochester, New York

Judge of the Court of Claims