The following papers were read and considered by the Court on this motion:
Defendant’s Notice of Motion, Defendant’s Affirmation with annexed
Exhibits A-E, Claimant’s Notice of Motion in Response to Summary Judgment
and Claimant’s “Affirmation” with attached documents as well
as annexed Exhibits A-E. Defendant, the State of New York, has brought this
motion seeking an order granting summary judgment in its favor. Claimant, Aaron
Callender, a pro se inmate, has opposed defendant’s motion.
Claimant alleges in his claim that Department of Correctional Services (DOCS)
employees did not follow their own procedures by failing to timely respond to
claimant’s appeal of a “Tier III hearing” decision. Claimant
also contends that once he received a reversal of the Tier III hearing decision
he was not returned to level three status for an additional thirty-six
Defendant further explains that on March 7, 2007 claimant, an inmate at the
Southport Correctional Facility (Southport), was found guilty on a
Superintendent’s Tier III hearing of committing an unhygienic act and
interfering with an employee. Claimant received a penalty of six months in the
special housing unit (SHU). Claimant then appealed the Tier III determination to
the Commissioner, who reversed it on June 28, 2007. The determination was
reversed on the grounds that due to an administrative oversight, the appeal had
not been reviewed in a timely fashion.
Defendant informs the Court that Southport has a three-level assignment system
known as the Progressive Inmate Movement System or PIMS. Defendant states that
each increasing level accords SHU inmates greater privileges and reduced
restrictions. As a result of the Tier III hearing, claimant was moved from level
three status to level two status. Claimant alleges that he remained in level
two status for an additional thirty-six days after his Tier III disposition was
As the party seeking summary judgment, defendant must make a prima facie
showing of entitlement to judgment as a matter of law, by offering sufficient
evidence to eliminate any material issues of fact from the case (Cox v
Kingsboro Medical Group, 88 NY2d 904 ; Winegrad v New York Univ.
Med. Center, 64 NY2d 851 ; Zuckerman v City of New York, 49
NY2d 557 ). Failure to make a prima facie showing requires denial
of summary judgment, regardless of the sufficiency of the opposing papers
(Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 ). Once
the proponent of a summary judgment motion establishes a prima facie
showing then the burden shifts to the opposing party to produce evidentiary
proof in admissible form sufficient to demonstrate the existence of material
issues of fact which require a trial of the action (Zuckerman v City of New
York, 49 NY2d 557, 562 ).
Defendant seeks summary judgment based on immunity arguing that its actions
were conducted under the authority of and in full compliance with the governing
statutes and regulations.
The Court of Appeals has held that the actions of DOCS employees in commencing
and conducting disciplinary proceedings, that are “under the authority of
and in full compliance with the governing statutes and regulations (Correction
Law §§ 112, 137; 7 NYCRR parts 250-254) ... constitute discretionary
conduct of a quasi-judicial nature for which the State has absolute
immunity” (Arteaga v State of New York, 72 NY2d 212, 214
). The Court explains that this immunity can be lost “for [the]
unlawful actions of employees taken beyond their authority or in violation of
the governing rules and regulations” (id. at 220). An example of
such actions is confinement without granting a hearing or other required due
process safeguards (id. at 221).
In the instant action defendant concedes that it did not follow its own
regulations by failing to review claimant’s appeal in a timely fashion.
Claimant has presented a Superintendent Hearing Disposition sheet which states
that claimant should have been released from SHU on June 21, 2007. The letter
from the Commissioner’s office explaining that claimant’s hearing
was reversed was dated July 27, 2007. Additionally, claimant’s contention
that he was held for thirty-six days after his disposition had been reversed has
not been satisfactorily addressed by defendant. Defendant has failed to set out
the administrative process for returning an inmate to his pre-disposition status
once a reversal has been issued by the Commissioner. Thus, a portion of
claimant’s time spent in level two status may be actionable and not
covered by immunity.
Therefore, for the foregoing reasons, defendant’s motion for summary
judgment is denied.