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
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
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
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.