Claimant, an inmate proceeding pro se, filed this claim seeking damages for his
alleged wrongful confinement in the Special Housing Unit (SHU) at Elmira
Correctional Facility. Defendant State of New York (defendant) answered and
asserted several affirmative defensives. Claimant now moves for summary
Defendant opposes the motion.
Claimant, as the movant on
this motion for summary judgment, is required to set forth evidentiary facts in
admissible form which establish a prima facie showing of entitlement to judgment
as a matter of law (Winegrad v New York Univ. Med. Ctr.,
64 NY2d 851, 853
; Zuckerman v City of New York,
49 NY2d 557, 562 ). Once
this burden has been met, it is incumbent upon the opposing party to produce
admissible evidence sufficient to create material issues of fact requiring a
trial of the action (Alvarez v Prospect Hosp.,
68 NY2d 320, 324 ).
However, absent such a prima facie showing by the movant, the motion must be
denied, regardless of the sufficiency of the opposing papers (Winegrad v New
York Univ. Med. Ctr., supra
In order to establish a prima facie case of wrongful confinement – a
“species” of the tort of false imprisonment (Gittens v State of
New York, 132 Misc 2d 399, 407 ) – a claimant must show that
“(1) the defendant intended to confine him, (2) the [claimant] was
conscious of the confinement, (3) the [claimant] did not consent to the
confinement and (4) the confinement was not otherwise privileged”
(Broughton v State of New York, 37 NY2d 451, 456 , cert denied
sub nom. Schanbarger v Kellogg, 423 US 929 ).
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 ). Notwithstanding the subsequent reversal of
the underlying disciplinary charges, whether administratively or via a
successful CPLR article 78 proceeding, the immunity is retained as long as the
disciplinary proceedings were conducted consistent with the procedures provided
in the relevant rules of the Department of Correctional Services (id;
see Davis v State of New York, 262 AD2d 887 , lv denied 93 NY2d
819 ; Sims v State of New York, Ct Cl, Sept. 7, 2005, Lebous, J.,
Claim No. 101974 [UID # 2005-019-019]). 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,
Of particular relevance in this claim is the further requirement that
“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, Feb. 8, 2006, Sise,
P.J., Claim No. 102781 [UID # 2006-028-008]). In other words, claimant must
show that if defendant had properly complied with its rules and regulations, the
outcome of the hearing would have been different and claimant would not have
been wrongfully confined or suffered damages (see e.g. Lewis v State of New
York, Ct Cl, July 16, 2007, Sise, P.J., Claim No. 113060, Motion Nos.
M-73107, M-73226 [UID # 2007-028-560]).
On January 6, 2008, claimant was served with a misbehavior report charging him
with refusing a direct order and lewd conduct.
A Tier III Disciplinary Hearing was held and claimant was found guilty of both
charges and sentenced to six months confinement in SHU, as well as six months of
loss of commissary, packages, phone privileges, and good time credits. Claimant
appealed the determination. On March 19, 2008, the determination was
administratively reversed because “the hearing record fail[ed] to indicate
how the inmate’s mental health was considered per Chapter V”
(Claimant’s Motion for Summary Judgment, Exhibit B), and the matter was
expunged from claimant’s record.
7 NYCRR 254.6 (b) provides that “[w]hen an inmate’s mental state or
intellectual capacity is at issue, a hearing officer shall consider evidence
regarding the inmate’s mental condition or intellectual capacity at the
time of the incident and at the time of the hearing.” It is undisputed
that a formal mental health assessment of claimant was required (Superintendent
Hearing Disposition Rendered, Affirmation of AAG Roberto Barbosa, Exhibit B).
Based upon a review of the Hearing Disposition, it appears that the Hearing
Officer did contact a representative of the Office of Mental Health (OMH), who
concurred with the proposed penalty. However, the Hearing Officer failed to
indicate how or whether he considered information concerning claimant’s
mental health condition – which he presumably received from OMH – in
rendering the disciplinary determination. Because the determination was
administratively reversed based upon this failure, the State clearly violated
one of its own regulations, and as defendant appropriately concedes, has
therefore lost its absolute immunity (Affirmation of AAG Roberto Barbosa, ¶
Notwithstanding the loss of defendant’s absolute immunity defense,
claimant has not established that if defendant had complied with the regulation
at issue, the outcome of the disciplinary hearing would have been
Without such evidence, claimant
has failed to meet his burden on this motion (see generally Alvarez v
Prospect Hosp., supra
; Lewis v State of New York, supra
Accordingly, claimant’s motion for summary judgment on the issue of
liability is denied.
2) Affirmation in Opposition of Roberto Barbosa, AAG, dated August 13, 2008,
and attached Exhibits A through C.
3) Claimant’s Reply/Affidavit sworn to on August 19, 2008.
Filed papers: Claim filed on June 2, 2008; Verified Answer filed on July 2,
. Defendant’s second affirmative
defense asserting its absolute immunity is therefore dismissed.
. Claimant states in his Reply Affidavit that
because the “mental health medication” he had been taking up until
the month prior to the incident made him impotent, it was impossible for him to
have been masturbating in front of Nurse Delap, and therefore he could not be
guilty of lewd conduct or refusing her direct order to stop. Interestingly,
claimant also states that he had stopped taking the medication “to see if
[he] could achieve an erection.” Rather than supporting his claim,
claimant’s argument simply raises an obvious question of fact.
Claimant also argues that if Dr. Brown (presumably the Hearing Officer’s
contact at OMH) had testified on the record regarding this alleged side effect
of claimant’s medication, as claimant had requested, claimant would not
have been found guilty of the charges. However, these contentions concern
whether the record contains substantial evidence to support the determination
and would appropriately be raised in a CPLR article 78 proceeding, rather than
in this forum (see CPLR 7803 ; see generally Matter of Crosby v
Goord, 38 AD3d 1110 ; Matter of Alamin v New York State Dept. of
Correctional Servs., 253 AD2d 948 ; McKinley v State of New
York, Ct Cl, Feb. 4, 2008, Schaewe, J.,Claim No. 109414, Motion No. M-74139
[UID # 2008-044-506], n 1).