Opinion
# 2021-059-005 Claim No. 134181 Motion No. M-95968 Cross-Motion No. CM-96175
01-19-2021
GERARDO BARRERA v. THE STATE OF NEW YORK
Gerardo Barrera, pro se HON. LETITIA JAMES, ATTORNEY GENERAL By: Dorothy M. Keogh, Assistant Attorney General
Synopsis
Case information
| UID: | 2021-059-005 |
| Claimant(s): | GERARDO BARRERA |
| Claimant short name: | BARRERA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 134181 |
| Motion number(s): | M-95968 |
| Cross-motion number(s): | CM-96175 |
| Judge: | MAUREEN T. LICCIONE |
| Claimant's attorney: | Gerardo Barrera, pro se |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL By: Dorothy M. Keogh, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 19, 2021 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Gerardo Berrera (Claimant), proceeding pro se, moves to compel responses to discovery demands. The State of New York (Defendant or State) opposes the motion and cross-moves to dismiss the claim pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. Claimant has not responded to the cross motion.
The claim herein alleges that while an inmate at the Sing Sing Correctional Facility, Claimant was wrongfully confined for fifteen days between January 8, 2019 and January 23, 2019. The claim states that on January 8, 2019 Claimant "had an evening law library callout for the school building" which was on the third floor. Claimant states that he was in a hallway on the second floor on his way to the bathroom when the civilian Youth Awareness Program (YAP) staff advisor called him into room 206. Claimant, a YAP facilitator, entered room 206 and waited for the YAP staff advisor to finish her conversation with other inmates. At that time, a correction officer found Claimant in room 206 and wrote a misbehavior report charging Claimant with having been out of place and leaving an assigned area (the law library). Claimant was immediately confined in keeplock pursuant to that misbehavior report.
At a disciplinary hearing on January 14, 2019, Claimant was found guilty of having been out of place and leaving an assigned area and sentenced to fifteen days keeplock and loss of privileges. The Disciplinary Hearing Disposition states that (1) the testimony of Claimant and the correction officer who wrote the misbehavior report was that Claimant was in room 206 and not the law library, and (2) the YAP staff advisor testified that she called to Claimant as he was walking down the hallway and he then entered room 206, which established that Claimant was already out of place when the YAP staff advisor called to him.
The claim asserts that at his hearing, Claimant "brought forth numerous objections of violations of state regulations that were disregarded by [the hearing officer] . . . including, Claimant was on his way to utilize the bathroom when he was called into Room 206 by [the YAP staff advisor]; following a direct order as issued by staff. Pursuant to 7 NY ADC 270.2 - Rule 106.10 states, an inmate shall obey all orders of department personal promptly and without argument." In other words, Claimant argues that although he was not authorized to be in the hallway on the second floor, this should have been excused because he was on his way to the bathroom, and further, he should have been excused for being in room 206 because the YAP staff advisor asked him to be there. The claim asserts causes of action for "simple negligence; strict liability; wrongful confinement; mental anguish and emotional distress."
As it is potentially dispositive, Defendant's cross motion to dismiss will be considered first. "It is well settled that actions of correctional facility employees with respect to inmate discipline matters are quasi-judicial in nature and, unless the employees exceed the scope of their authority or violate the governing statutes and regulations, the State has absolute immunity for those actions" (Holloway v State, 285 AD2d 765, 765 [3d Dept 2001], citing Arteaga v State of New York, 72 NY2d 212 [1988]; Ramirez v State, 175 AD3d 1635, [3d Dept 2019], lv to appeal denied, 35 NY3d 902 [2020]). However, when a prison disciplinary hearing is not conducted in accordance with the governing rules and regulations, the cloak of absolute immunity is lifted and liability may attach (Holloway v State of New York, 285 AD2d 765 [3d Dept 2001]).
Here, Claimant fails to assert facts which would support his claim that the correctional facility employees responsible for his discipline acted in excess of their authority or in violation of any relevant rules or regulations which implicate procedural due process. Claimant argues that the misbehavior report failed to specify actions that support the guilty disposition against him, in contravention of 7 NYCRR § 251-3.1 and that the finding of his guilt at the disciplinary hearing was not based on substantial evidence in violation of 7 NYCRR § 254.7. However, the misbehavior report (defendant's exhibit C) is sufficiently detailed and was timely prepared by the correction officer who found Claimant in room 206. Claimant does not deny that he was in room 206 and the testimony at trial from Claimant, the YAP staff advisor and the correction officer who found him there was that he was in fact, in room 206. Claimant's contention that he was required to comply with the YAP staff advisor's request to come speak with her does not relieve Claimant from the fact that by his own admission he was not where he was authorized to be, namely, the law library. Thus, it cannot be said that the hearing officer's determination was not based on substantial evidence, which in any event is not a sufficient basis for the loss of the State's absolute immunity (see Loret v State of New York, 106 AD3d 1159 [3d Dept 2013]).
Similarly, Claimant has not asserted any facts to support the conclusory allegation that the hearing officer was biased or predetermined his guilt, and given that the testimony at the hearing demonstrated that Claimant was in fact out of place and has left his assigned area, the record does not support such a contention (see Matter of Abdullah v Goord, 36 AD3d 978 [3d Dept 2007]). The hearing officer's decision not to credit or excuse Claimant's testimony regarding why he was out of place is an example of the hearing officer "exercising a discretionary authority for which the State has absolute immunity" (Holloway v State of New York, 285 AD2d 765, 766 [3d Dept 2001]). A determination of credibility by a hearing officer does not implicate a non-discretionary due process safeguard (Townsend v Noeth, 170 AD3d 1353, 1354 [3d Dept 2019]).
Similarly, the claim's allegations that provisions of the Department of Corrections and Community Supervision (DOCCS) Employee Manual were violated do not support a claim for wrongful confinement as such regulations "provide additional protections above and beyond those minimum requirements for procedural due process recognized by the United States Supreme Court" (Texeira v Fischer, 26 NY3d 230 [2015]). A violation of a rule or regulation does not, without more, provide a sufficient basis for a monetary award. Rather the violation must have caused an actual injury or loss to the claimant (see Rivera v State of New York, UID No. 2006-028-008 [Ct Cl, Sise., P.J., Feb. 8, 2006]). In the case of a rule or regulation violation relating to a disciplinary hearing, a claimant must establish that the outcome would have been different had the rule violation not occurred (see Watson v State of New York, 125 AD3d 1064 [3d Dept 2015]). Here, Claimant alleges violations of DOCCS Employee Manual § 2.1 "Personal Conduct" and § 2.2 "Lawful Comportment." Again, as Claimant's own testimony established that he was guilty of the charges, violations of the DOCCS Employee Manual could not provide the basis for a claim of wrongful confinement because Claimant cannot show that but for those violations, the outcome of the hearing would have been different.
In short, the allegations in the claim demonstrate that the cause of Claimant's confinement resulted from the hearing officer's decision not to excuse Claimant for having been out of place because the YAP staff advisor had called to him, rather than due to a failure by Defendant to comply with rules and regulations intended to ensure that Claimant be provided a procedurally fair hearing. As such, the State is entitled to absolute immunity for the hearing officer's determination and thus, the claim does not assert a cause of action for wrongful confinement (Matter of Kairis v State of New York, 113 AD3d 942 [3d Dept 2014]).
As for the remaining causes of action listed in the claim, there are no allegations whatsoever regarding a claim for strict liability or negligence. To the extent that Claimant is asserting a claim for intentional infliction of emotional distress, such a claim is barred by public policy (see Lynn v State of New York 33 AD3d 673 [2d Dept 2006]).
Based on the foregoing, the claim fails to state a cause of action and Defendant's cross-motion to dismiss (CM- 96175) is granted. Claimant's motion to compel discovery (M-95968) is denied as moot and the claim is hereby dismissed.
MAUREEN T. LICCIONE
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion and Affidavit of Gerardo Barrera, pro se, dated September 18, 2020 with attached exhibits.
2. Notice of Cross Motion and Affirmation of Dorothy M. Keogh, AAG, dated November 19, 2020 with attached exhibits.
January 19, 2021
Hauppauge, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims