New York State Court of Claims

New York State Court of Claims

PITTMAN v. STATE OF NEW YORK, #2008-018-623, Claim No. 110017


This Court finds that claimant’s due process rights as set forth in the rules and regulations were not violated. There was no evidence that the results of the hearing were impacted by defendant’s failure to provide the written statement; as a result, the hearing officer finding claimant guilty of the facility disciplinary charges is immune from this Court’s review and the imposition of claimant to the Special Housing Unit was privileged and not false imprisonment or wrongful confinement. The claim is 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:
Derrick Pittman, Pro Se
Defendant’s attorney:
Attorney General of the State of New York
By: Heather R. Rubinstein, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 2, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The claim seeks damages for defendant’s alleged false imprisonment of claimant and a violation of his due process rights while he was an inmate at Watertown Correctional Facility (WCF). A trial was held on the issues of liability and damages.

Claimant testified that on May 26, 2004, his cube was searched by three or four correction officers and he was frisked. Only a composition notebook was confiscated. Claimant acknowledged that the notebook was his and he had no objection to the correction officers taking it. He said the notebook had previously been confiscated and reviewed by Media Review three times and each time it had been returned to him. One week after May 26, 2004, Claimant was taken to the Special Housing Unit and the next day he received a misbehavior report.[1] The report indicates the composition notebook was determined to be Black Panther material and found that it violated Rule 105.12[2] which states:

An inmate shall not engage or encourage others to engage

in unauthorized organization activities or meetings, or

display, wear, possess, distribute or use unauthorized

organizational insignia or materials. An unauthorized

organization is any gang or any organization which has

not been approved by the deputy commissioner for

program services.

On June 7, 2004, the Tier III hearing for claimant commenced.[3] The hearing officer, Sharon Wuerschmidt, informed claimant of his rights and asked him who, if anyone, he wanted to call as a witness. Claimant indicated that he wanted a number of witnesses to be heard on his behalf, and named the officer who wrote the misbehavior report and three other officers, one of whom was unknown to Ms. Wuerschmidt. When asked what the witnesses’ testimony might be or what questions claimant wanted to ask these witnesses, claimant failed to give any specifics and the hearing officer refused to allow claimant to call some of the witnesses to testify.

During the initial phase of the hearing, claimant explained to the hearing officer that the notebook had been taken from him before and subjected to Media Review. In fact, it was Ms. Wuerschmidt that had returned the notebook to claimant on one occasion from Media Review. Claimant told the hearing officer that the notebook contained quotes from various books he had read as well as comments and thoughts he had written down over the course of years. He denied that it had any relation to gang activity.

The hearing was adjourned for the production of witnesses and resumed on June 10, 2004, at which time claimant acknowledged the notebook contained quotes from books written by members of the Black Panther’s organization which claimant described as an activist group. At least 12 pages of the notebook, front and back, quoted Black Panther material. Many of these, as well as some writings by claimant himself, were read into the record. Claimant related an incident which occurred a couple of months before when another correction officer had reviewed the notebook but returned it to claimant and recommended that claimant not remove it from his cube in the future. The notebook was also previously confiscated and sent to Media Review but, again, it was returned to claimant because it was not subject to Media Review. After hearing from claimant, the hearing was adjourned again because none of the witnesses claimant requested were available.

The hearing continued on June 15, 2004, and Officer K. LaFlesh testified via telephone. He said that after frisking claimant’s cube he confiscated the notebook and reviewed the material in it. Officer LaFlesh had been trained in unauthorized organizations and materials for unauthorized organizations by the Department of Correctional Services. It was his opinion that the material in the notebook was Black Panther material. Claimant posed questions to the witness through the hearing officer. Some of the questions claimant requested the hearing officer to ask the witness were refused because the hearing officer deemed them irrelevant to the inquiry. Claimant repeatedly objected to the restrictions.

After Officer LaFlesh testified, claimant was given another opportunity to detail the questions for and/or the relevance of, the other witnesses he requested. Claimant felt that he did not finish questioning Officer LaFlesh and indicated that the other two officers had somehow been involved in investigating the situation that led to the misbehavior report. The hearing officer said that their testimony would not be relevant to the issue and did not allow them to be called. Claimant testified at this trial that during this part of the hearing the hearing officer, Ms. Wuerschmidt, called him an idiot both on and off the record. The transcript[4] of the hearing does not contain that statement by the hearing officer.

After further inquiry of claimant, the hearing officer determined that the questions claimant had for Officer LaFlesh and the other potential witnesses were not relevant. Claimant wanted to ask what was the officers’ impression of the contents of the notebook and what they knew of the Black Panther organization. Claimant objected to the hearing officer’s denial. The hearing officer found claimant guilty of the charge, and he was placed in keeplock for 90 days along with loss of privileges. After a review of the superintendent hearing, the decision was ultimately reversed on August 23, 2004. No reasons were given for the reversal.
Legal Discussion
To establish a cause of action of wrongful confinement, a species of false imprisonment (Gittens v State of New York, 132 Misc 2d 399), Claimant must show that (1) the defendant intended to confine claimant, (2) claimant was conscious of the confinement, (3) claimant did not consent to the confinement and, (4) the confinement was not otherwise privileged (Broughton v State of New York, 37 NY 2d 451).

Keeping order and proper security in a correctional facility are “formidable tasks” and it is well established that the actions taken by correctional facility employees in furtherance of authorized disciplinary measures are quasi-judicial in nature and entitled to absolute immunity (Arteaga v State of New York, 72 NY2d 212). Where the actions of correctional facility employees involve a discretionary decision, where the exercise of reasoned judgment can produce different acceptable results, no liability may be imposed even if it is later determined that the discretion was abused or the decision was incorrect (Id. at 216; Holloway v State of New York, 285 AD2d 765). However, if the actions of the employees are beyond their authority or violate controlling rules and regulations, their actions will not be protected by immunity (Arteaga, 72 NY2d at 220).

Claimant has alleged that the hearing officer should have been removed pursuant to

7 NYCRR 253.1, and that he was deprived of his right to call witnesses pursuant to 7 NYCRR 253.5. Section 253.1 of the Codes of Rules and Regulations for the Department of Correctional Services (7 NYCRR § 253.1[b]) provides:

The disciplinary hearing officer shall be responsible for

conducting disciplinary hearings in an impartial manner.

No person who has participated in any investigation of

the acts shall be a hearing officer at a hearing relating to

those acts, nor shall any person who has prepared or caused

to be prepared the misbehavior report on which a hearing is

held, act as the hearing officer on that charge.

In this instance, Hearing Officer Wuerschmidt was a member of the Media Review Committee and had returned claimant’s notebook after a prior confiscation. The notebook had been returned because it was an item not subject to media review. There is no evidence that the hearing officer either investigated the notebook contents nor that she had any involvement in the May 26, 2004 cell frisk or confiscation or the misbehavior report. Therefore, pursuant to the governing regulations, she was not disqualified from hearing claimant’s case (see Giakoumelos v Coughlin, 192 AD2d 998 [hearing officer interview of inmate in connection with administrative segregation proceeding did not preclude acting as hearing officer charging inmate with unrelated violation of disciplinary rule]).

Claimant also argues that Hearing Officer Wuerschmidt prevented him from calling three of the witnesses he requested. Inmates are allowed to call witnesses on their behalf during a disciplinary hearing with some restrictions. 7 NYCRR 253.5(a) provides:
The inmate may call witnesses on his behalf provided their

testimony is material, is not redundant, and doing so does not

jeopardize institutional safety or correctional goals. If permission

to call a witness is denied, the hearing officer shall give the

inmate a written statement stating the reasons for the denial,

including the specific threat to institutional safety or correctional

goals presented.

There is no evidence that a written statement of the reason claimant was not allowed to call certain witnesses was given to claimant. The hearing officer verbally explained to claimant that the witnesses he requested did not appear to have any relevant testimony, and claimant failed to provide specific information about the witnesses’ involvement with the case although the hearing officer gave him several opportunities to do so.

Hearing Officer Wuerschmidt failed to comply with regulation 7 NYCRR 253.5 in that she failed to provide a written statement of the reason she was denying claimant’s request for specific witnesses. Her determination that claimant could not call those witnesses was a discretionary determination, immune from this Court’s review and it cannot form the basis for defendant’s liability (Lamage v State of New York, Ct Cl, Collins, J., dated May 10, 2007, UID# 2007-015-552, Claim No. 109310; Cuevas v State of New York, Ct Cl, Mignano, J., dated October 19, 2000, UID# 2000-029-026,Claim No. 95347; Malik v State of New York, Ct Cl, Patti, J., dated August 1, 2000, UID# 2000-013-023, Claim No. 101978, M-61477, CM-61732). Her failure to provide the written explanation is not discretionary. Yet the failure to provide the written statement, a ministerial act, had no bearing on her decision whether to allow certain witnesses to testify as the hearing officer set forth the basis of her denial on the record. A denial, based upon the limited information claimant provided at the time, is within the hearing officer’s discretionary authority under the rules and regulations, “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.” (Rivera v State of New York, Ct Cl, Sise, J., dated February 8, 2006, UID# 2006-028-008, Claim No. 102781). It was claimant’s burden to prove that the failure to provide a written statement would have somehow changed the outcome of the hearing. Such proof was not provided.

Based on the evidence and testimony presented, the Court does not find that claimant’s due process rights as set forth in the rules and regulations were violated. There was no evidence that the results of the hearing were impacted by defendant’s failure to provide the written statement; as a result, the hearing officer finding claimant guilty of the facility disciplinary charges is immune from this Court’s review and the imposition of claimant to the Special Housing Unit was privileged and not false imprisonment or wrongful confinement.

Therefore, the motion to dismiss the claim made by the defendant at the end of the trial is hereby granted. The claim is DISMISSED.

May 2, 2008
Syracuse, New York

Judge of the Court of Claims

[1]. Exhibit 5.
[2].7 NYCRR 270.2, Rule 105.12.
[3].The transcript of the entire hearing is in evidence as Exhibit B.
[4].Exhibit B.