|Claimant short name:||TURLEY|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Mark Turley, Pro Se|
|Defendant's attorney:||Hon. Andrew M. Cuomo, NYS Attorney General
By: Glenn C. King, Assistant Attorney General, Of Counsel
|Third-party defendant's attorney:|
|Signature date:||June 4, 2010|
|See also (multicaptioned case)|
This claim alleges wrongful confinement arising from a disciplinary hearing held on April 1, 2005, at Hudson Correctional Facility. A trial was held on March 23, 2010.
On direct examination, claimant testified that he requested the appearances of two witnesses, namely Robert Haskins and Kevin Bacon, at his disciplinary hearing on April 1, 2005. He further testified that when neither of said witnesses appeared at the hearing, he was told by one of the Corcraft employees, John Zurlo, that one of the requested witnesses was not available and that the other had no knowledge of the alleged incident. According to claimant, Mr. Zurlo did not provide sufficient proof that contact with the requested witnesses was actually made. At the conclusion of his disciplinary hearing, claimant was found guilty of creating a disturbance and refusing a direct order, and was sentenced to 90 days in the Special Housing Unit (SHU). Claimant appealed said determination and on May 17, 2005, his conviction was reversed based upon the hearing officer's failure to follow the rules and regulations regarding an inmate's request for witnesses to appear on his behalf. Claimant was released from SHU on May 19, 2005, and with the filing of this claim, now seeks damages for the 49 days he allegedly was wrongfully confined to the SHU.
During the trial, claimant testified that defendant's failure to produce the requested witnesses at his disciplinary hearing prevented him from being able to prove his innocence with respect to the charges alleged against him. Notably, however, on cross-examination claimant admitted that he had not had any contact with either of the subject witnesses since he was released from incarceration, and further, that he did not attempt to contact either of them to testify at the trial of this matter.
In support of its case, defendant called two witnesses, Correction Officer Seka Adopo and Deputy John Zurlo. Correction Officer Adopo testified that the charges against claimant, which resulted in the disciplinary hearing, arose when claimant was asked to empty a trash bag. Claimant refused and after being asked a second time, became loud and argumentative, causing other individuals to become uncomfortable and/or frightened. Deputy Zurlo testified that he was assigned to conduct the disciplinary hearing regarding claimant's behavior and he attempted to contact the witnesses requested by claimant but one was unavailable and the other refused to appear out of fear. Deputy Zurlo testified that he could not recall whether he knew what the witnesses were going to testify to, but he took into account that they were not testifying when rendering his determination. He based his determination on the testimony of claimant, as well as the written report of the Correction Officer and memoranda submitted by the Corcraft staff, which were submitted into evidence. He further testified that after the evidence had been submitted, there was nothing pertinent that the requested witnesses could have added which would have changed his determination.
Defendant conceded that it failed to call certain witnesses at the disciplinary hearing and that, as a result, the blanket of immunity granted by Arteaga v State of New York (72 NY2d 212 ) may have been lifted. However, defendant argued that even if the immunity given to defendant was lifted, claimant bears the burden of proving that his confinement was otherwise wrongful. To show this, defendant argued that claimant needs to prove, by clear and convincing evidence, that he was innocent of the charges alleged against him. The Court agrees. Generally, actions taken by State employees and officials in connection with prison disciplinary proceedings are protected by absolute immunity (id.). However, if the governing rules and procedures are not followed when conducting said disciplinary proceedings, absolute immunity does not apply (id.).(1) Such a removal of immunity, however, does not result in absolute liability to defendant because claimant is still required to prove the merits of his claim (see Kilpatrick v State of New York, Claim No. 100462, Motion No. M-64030 [Ct Cl 2001], Patti, J., UID #2001-013-031), which in this case is that he was wrongfully confined.
To establish a prima facie case for wrongful confinement, claimant must demonstrate the following: (1) that the State intended to confine him; (2) that claimant was conscious of the confinement; (3) that claimant did not consent to the confinement; and (4) that the confinement was not otherwise privileged (Broughton v State of New York, 37 NY2d 451, 456 , cert den sub nom. Schanbarger v Kellogg, 423 US 929 ). If claimant was in fact guilty of the charges alleged against him, or would have been found guilty even if all the rules and regulations had been followed, then his confinement would not be wrongful, regardless of the irregularity of the hearing he received (Mabry v State of New York, Claim No. 97453 [Ct Cl 2001], Patti, J., UID #2001-013-514); Jones v State of New York, Claim No. 101435 [Ct Cl 2005], Lebous, J., UID #2005-019-040).
During the trial, claimant recited each of the elements of a claim for wrongful confinement, but failed to offer any proof regarding the charges that had been brought against him. Specifically, claimant failed to prove that had the witnesses he requested been called to testify, the outcome of the disciplinary hearing would have been different. Accordingly, this Court finds that claimant has failed to meet his burden of proving that his confinement in the SHU was wrongful.
Based upon the foregoing, Claim No. 111013 is dismissed. The Chief Clerk of the Court is directed to enter judgment accordingly.
All motions not heretofore ruled upon are denied.
June 4, 2010
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Recent case law has raised questions as to whether defendant's immunity would in fact be removed (see McLean v City of New York, 12 NY3d 194 ). However, based upon the parties' failure to raise the issue and in light of the overall outcome of this decision, the same need not be addressed herein.