New York State Court of Claims

New York State Court of Claims

GAITER v. THE STATE OF NEW YORK, #2009-029-060, Claim No. 113429


State held liable for wrongful excessive confinement after inmate’s disciplinary conviction for failing a urine test was administratively reversed because she was not allowed to call witnesses in her defense, in violation of her constitutional rights and the procedure set forth in the NYCRR. Arteaga immunity not applicable because procedural requirements were not followed. Administrative reversal of conviction on the ground that claimant was not allowed to call witnesses creates the presumption that if she had been allowed to call the witnesses, she would not have been convicted and not been excessively confined.

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:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Elyse J. Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 5, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate at Bedford Hills Correctional Facility, seeks damages for 65 days of confinement in the facility’s Special Housing Unit based on a disciplinary conviction that was subsequently overturned. [1]

Claimant testified that on May 18, 2005 her urine was tested by C.O. Rogers and found to be positive for cocaine. She was charged with drug use and convicted after a superintendent’s hearing (Exhibit 1). Claimant stated that she told the hearing officer that she was taking various prescription medications and that she had been in an outside hospital for a surgical procedure, during which she was administered medication, a few weeks prior to the urine test. She further stated that she requested to call two witnesses at the hearing – a facility nurse (to testify concerning the effects of the medications she was on and what she had been given in the hospital) and another inmate (to testify that urine samples are sometimes mishandled and switched) – but her request was denied by the hearing officer. Claimant also stated that the hearing officer told her that he called the facility’s pharmacy “to ask if they gave me this medication and was told ‘no, we don’t give this out in the facility’ ”.[2] The hearing officer also allegedly told her that he did not believe she had been on a trip to an outside hospital.

Claimant submitted an Operative Report from Mount Vernon Hospital indicating that on April 28, 2005 she underwent an endoscopy under “IV conscious sedation” administered by an anesthesiologist (Exhibit 2).

Claimant testified on cross-examination that, in addition to being given medication while at the hospital, she was on medication for Hepatitis C that she understood could cause positive drug tests. She stated that the nurse whose testimony she requested at the hearing was willing to testify on her behalf to explain the positive drug test.

Claimant was convicted of the disciplinary charges and sentenced to ten months confinement in special housing and 24 months loss of privileges (Exhibit 1, p 3). She appealed that conviction and, on August 5, 2005, it was reversed by Donald Selsky, the Director of the Special Housing/Inmate Disciplinary Program in the DOCS Commissioner’s Office (Exhibit 3, p 1). Mr. Selsky’s decision does not state the reason for the reversal. Claimant was released from special housing after 65 days of confinement, and she filed a grievance seeking reimbursement for wages lost resulting from her inability to work at her prison job while she was confined to special housing. That grievance was granted, with the captain writing: “Directive #4802, pg.#5, section # C-4, item ‘D’ will prevail if reversal was granted based on procedural error. Facility will reimburse grievant at the unemployment rate for six (6) hours per day for all time served while in keeplock or S.H.U. status” (Exhibit 3, p 2).

Defendant did not call any witnesses, nor did it attempt to refute any of claimant’s allegations. Its sole defense was that it is entitled to immunity pursuant to the decision in Arteaga v State of New York (72 NY2d 212). Counsel argued that defendant’s employees followed all relevant rules and regulations, that the hearing officer has unfettered discretion to determine what requested witnesses are and are not relevant at a disciplinary hearing and that the hearing officer in this case was correct in his determination that claimant’s requested witnesses were not relevant to the disciplinary charge.

In Arteaga, the Court of Appeals held that where DOCS officials “act under the authority of and in full compliance with the governing statutes and regulations (Correction Law §§ 112, 137; 7 NYCRR parts 250-254), their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity” (72 NY2d 212, 214). Refuting the contention that this holding would deprive inmates of the right to recover damages in the Court of Claims where correction officials acted beyond their authority or “in violation of the governing rules and regulations,” the Court noted that actions of correction personnel in physically abusing inmates “or in confining them without granting a hearing or other required due process safeguard (see, 7 NYCRR 125-5.1; parts 252-254) would not receive immunity” (id., 220, 221). One of the required due process safeguards is the right to call witnesses “when that will not be unduly hazardous to institutional safety or correctional goals” (Matter of Laureano v Kuhlmann, 75 NY2d 141, 146).

The regulation implementing the constitutional right to call witnesses provides that an inmate may call witnesses “provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial, including the specific threat to institutional safety or correctional goals presented” (7 NYCRR § 254.5(a).

Here, claimant was given a written explanation for the hearing officer’s determination that the requested testimony of the inmate and the nurse “had no bearing on the issue in this hearing” (Exhibit 1).

Courts have consistently recognized that the constitutional right to call witnesses, as well as the regulation at issue here, requires DOCS officials to make a “meaningful effort to secure the testimony” of witnesses requested by an inmate as well as a substantive explanation when such a request is refused (Matter of Silva v Scully, 138 AD2d 717, 719; see also Matter of Barnes v LeFevre, 69 NY2d 649; Matter of Hill v Selsky, 19 AD3d 64; Matter of Afrika v Selsky, 199 AD2d 315). The denial of an inmate’s request to call a facility nurse to support the inmate’s defense that the positive result was connected with medication received during surgical treatment at an outside hospital, unexplained other than by the hearing officer’s determination that such testimony would be irrelevant, neither adequately protects the inmates constitutional right nor comports with the regulation (see Diaz v State of New York, UID No. 2006-036-008, Ct Cl, June 20, 2006, Schweitzer, J.). This was undoubtedly the reason for the reversal of claimant’s conviction, which the papers before the court indicate was for a “procedural” reason not otherwise specified. Defendant has not suggested that there was any “procedural” problem leading to the administrative reversal of claimant’s conviction other than the refusal to allow her to call her witnesses, nor is any such issue apparent from the evidence before the court. Under these circumstances, the immunity articulated in Arteaga v State of New York has no application.

The court has little trouble concluding, notwithstanding the absence of specific pharmacological evidence, that the administration of “IV conscious sedation” in connection with a surgical procedure could likely involve medications incompatible with a subsequent negative drug screen. Certainly, the reversal of claimant’s conviction by the Commissioner’s deputy – based on a more complete record than that made available to the court – as well as claimant’s subsequent reimbursement for lost wages for the specific reason that the reversal was for a “procedural” reason, “at the very least allows the presumption that the missing witness indeed would have made a difference in the result” (DuBois v State of New York, UID No. 2009-013-022, Ct Cl, September 9, 2009, Patti, J.). Given that defendant decided to present no witnesses or evidence and relied wholly on the contention that the hearing officer’s decision was entitled to absolute immunity, the court finds that claimant has established her cause of action for wrongful excessive confinement and that she is entitled to compensation for the 65 days she spent confined to special housing (see Ramirez v State of New York, 171 Misc 2d 677; Gittens v State of New York, 132 Misc 2d 399). Taking into account that claimant has already been reimbursed for her lost wages, the court finds that the sum of $650.00 constitutes due compensation for the restriction of claimant’s liberties beyond those attendant upon incarceration in general population. The Clerk of the Court is directed to enter judgment for said amount and further providing for the return of any filing fee actually paid.

October 5, 2009
White Plains, New York

Judge of the Court of Claims

[1].At the beginning of trial, the court granted claimant’s unopposed motion (M-76882) to decrease the ad damnum clause of the claim from $37,000 to $6,000.
[2].Unless otherwise indicated, all quotations are from the court’s trial notes.