New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2008-044-566, Claim No. 112789, Motion Nos. M-74850, CM-74899


Defendant’s motion for summary judgment granted.

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 24, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim asserting that two disciplinary sentences of being placed on a restricted diet were wrongfully imposed as the result of two separate disciplinary hearings. Defendant State of New York (defendant) answered. Defendant now moves for summary judgment. Claimant cross-moves for leave “to Amend the Bill of Particular [sic]” to add a cause of action for violation of the Department of Correctional Services Directive 4932.[1] Defendant opposes the cross motion.

Claimant was issued a misbehavior report charging him with violent conduct, creating a disturbance, performing an unhygienic act, harassment and making threats, all of which allegedly occurred at 6:45 p.m. on July 28, 2006 (the First Misbehavior Report). A disciplinary hearing for the conduct charged in the First Misbehavior Report commenced on August 8, 2006 and concluded on August 24, 2006. Claimant was found guilty of all charges, and was issued a disciplinary sentence of 21 days on a restricted diet, although 7 days of that sentence were suspended for a period of 6 months. Claimant was served with a second misbehavior report (the Second Misbehavior Report) charging him with creating a disturbance and performing an unhygienic act for conduct which allegedly took place at 12:00 a.m. on July 29, 2006. A disciplinary hearing on the Second Misbehavior Report was held on August 10, 2006, and claimant was found guilty of both charges. A disciplinary sentence of five days on a restricted diet was imposed from August 17, 2006 through August 22, 2006.

Claimant alleges that Correction Sergeant Harve was assigned as his assistant for both hearings, and that he assured claimant that security camera videotapes would be presented at the hearings. Claimant asserts that at both hearings, Hearing Officer Esgrow advised him that based upon “the Assistant Sheet,” the videotape footage requested did not exist.[2] Hearing Officer Esgrow then denied claimant’s requests that the Hearing Officer determine on his own whether any videotape existed. Claimant thereafter filed a grievance requesting a determination as to whether any videotape footage existed for the area surrounding his cell for the time period from 6:00 p.m. on July 28, 2006 through 12:00 a.m. on July 29, 2006. Claimant’s grievance was granted to the extent that an investigation was conducted, and it was determined that claimant “received some bad information [because] [a]ccording to the log book all cameras were in operation on the day in question” (Inmate Grievance Program Investigation, Defendant’s Motion, Exhibit C).

Although claimant asserts that defendant is guilty of intentional acts, reckless disregard, wanton acts, recklessness, wilful conduct, gross negligence, and negligent failure to train and supervise, he is in essence seeking money damages for the disciplinary sentences imposed at the two hearings.[3] Defendant argues that it complied with all rules and regulations pertaining to the disciplinary process, and because claimant failed to challenge the two disciplinary determinations, defendant is entitled to absolute immunity.

It is well-settled that defendant is entitled to absolute immunity from claims for monetary damages relating to disciplinary hearings, so long as it complies with the rules and regulations that govern such hearings (Arteaga v State of New York, 72 NY2d 212 [1988]). This immunity may be retained even though the disciplinary charges are subsequently reversed (id.; Davis v State of New York, 262 AD2d 887 [1999], lv denied 93 NY2d 819 [1999]). However, the State's absolute immunity may be lost if defendant violated its own rules and regulations in conducting the hearing, or otherwise acted outside the sphere of privileged actions (Arteaga v State of New York, supra).

On this motion for summary judgment, it is defendant’s burden to establish entitlement to judgment as a matter of law by setting forth evidence that defendant conducted the hearing in accordance with all applicable rules and regulations (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Arteaga v State of New York, supra). If the movant does not meet its burden, the motion must be denied regardless of the sufficiency of the opposing papers (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Claimant was found guilty of all charges contained in both the First Misbehavior Report and the Second Misbehavior Report. Further, neither of those determinations have been set aside.[4] Absent a reversal of the two administrative determinations, and a concomitant showing that defendant violated its rules or regulations or that it otherwise acted outside the sphere of privileged actions,[5] the claim must be dismissed (see e.g. Larocco v State of New York, Ct Cl, July 20, 2005, Midey, Jr., J., Claim No. 110552, Motion Nos. M-69931, M-70004 [UID # 2005-009-035]; Ferrari v State of New York, Ct Cl, Mar. 1, 2002, Sise, J., Claim No. 104107, Motion No. M-64278 [UID # 2002-028-011]).

Defendant’s motion for summary judgment is granted. Accordingly, Claim No. 112789 is hereby dismissed. Claimant’s cross motion to amend the claim is therefore denied as moot.

July 24, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion and claimant’s cross motion:

1) Notice of Motion filed on April 23, 2008; Affirmation of Roberto Barbosa, Assistant Attorney General (AAG), dated April 21, 2008, and attached Exhibits A through E.

2) Claimant’s Cross Motion filed on May 2, 2008; Unsworn “Affirmation” of Johnathan Johnson dated April 23, 2008.

3) Affirmation in Opposition of Roberto Barbosa, AAG, dated May 8, 2008.

Filed papers: Claim filed on September 20, 2006; Verified Answer filed on November 2, 2006.

[1]. In essence, claimant seeks leave to amend the claim to include an additional cause of action, and the Court will refer to the motion as such. Further, although claimant “cross-moves” for leave to amend the claim, he has not specifically opposed defendant’s motion.
[2]. Claimant does not deny that he signed each “Assistant Sheet” which indicated that there was not any videotape. Rather, he asserts that Sergeant Harve initially told him that the videotapes would be presented at the hearings, and never returned to inform him otherwise.
[3]. These specific allegations are listed in the claim under a heading entitled “Bill of Particulars,” which may explain why claimant’s cross motion seeks permission to amend the bill of particulars rather than the claim.
[4]. The only evidence that these determinations have not been challenged is contained in Assistant Attorney General (AAG) Roberto Barbosa’s affirmation in support of defendant’s motion. However, claimant has not refuted that sworn statement, and the Court will therefore accept it as a fact. To the extent that claimant may be challenging defendant’s administrative disciplinary determinations based upon Hearing Officer Esgrow’s failure to request and view the videotapes, the appropriate recourse would have been to administratively appeal the determinations, and if necessary, to commence a CPLR article 78 proceeding in Supreme Court (see generally Matter of Davis v Goord, 21 AD3d 606, 609 [2005]).
[5]. Notwithstanding that claimant wishes to amend the claim to include an allegation that defendant violated its own rules and regulations, specifically Directive 4932, claimant has failed either to provide the Court with a copy of this directive (nor is it otherwise available for review) or to set forth the manner in which defendant allegedly violated it.