New York State Court of Claims

New York State Court of Claims

McKINNEY v. THE STATE OF NEW YORK, #2008-044-589, Claim No. 115323, Motion No. M-75241


Inmate claimant’s motion for summary judgment in claim alleging wrongful confinement is denied, despite State’s acknowledged violation of regulations, because claimant failed to establish that outcome of disciplinary hearing would have been different if regulations had been followed.

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:
November 20, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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 judgment.[1] Defendant opposes the motion. Claimant replies.[2] 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 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). 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 [1986]). 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 [1986]) – 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 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]).

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]). 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 [1999], lv denied 93 NY2d 819 [1999]; 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, supra).

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.[3] 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, ¶ 9).[4]

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 different.[5] 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.

November 20, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on July 16, 2008; Statement of Uncontested Material Facts dated July 10, 2008; Affidavit of Michael McKinney sworn to on July 10, 2008, and attached exhibits.

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, 2008.

[1]. Claimant also requests that the Court strike defendant’s answer. While the Court finds that defendant is not entitled to absolute immunity and has stricken the second affirmative defense (see n 4 infra), claimant has provided no support for striking any further portion of the answer.
[2]. Despite claimant’s timely demand pursuant to CPLR 2214 (b) for responding papers to be served upon him at least seven days before the return date, defendant’s answering papers – which were mailed on the return date – are clearly untimely, as claimant accurately notes. However, in order to resolve the motion on its merits rather than on a procedural technicality, the Court will accept and consider both defendant’s late answering papers and claimant’s reply affidavit.
[3]. The misbehavior report was authored by Nurse R. Delap who accused claimant of “sitting on the edge of his bed, feet on his cell bars holding his penis in his hand [and] looking at [her while he was] masturbating.” Nurse Delap further stated that notwithstanding her direct order for claimant to remove his hand from his penis, he continued with said conduct. Additionally, the Superintendent’s Hearing Disposition Rendered (Superintendent Hearing Disposition Rendered, Affirmation of Assistant Attorney General [AAG] Roberto Barbosa, Exhibit B) notes that the lewd conduct charge was claimant’s sixth such offense. This particular document is notably missing from the documents submitted with claimant’s motion papers.
[4]. Defendant’s second affirmative defense asserting its absolute immunity is therefore dismissed.

[5]. 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 [4]; see generally Matter of Crosby v Goord, 38 AD3d 1110 [2007]; Matter of Alamin v New York State Dept. of Correctional Servs., 253 AD2d 948 [1998]; 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).