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.
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
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
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 ). This immunity may be retained even though
the disciplinary charges are subsequently reversed (id.; Davis v State
of New York, 262 AD2d 887 , lv denied 93 NY2d 819 ).
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 ;
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 ).
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.
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,
claim must be dismissed (see e.g. Larocco v State of New York,
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.