Opinion
# 2018-015-147 Claim No. 123487
08-21-2018
ANTHONY ROMANO v. THE STATE OF NEW YORK
Anthony Romano, Pro Se Honorable Barbara D. Underwood, Attorney General By: Douglas R. Kemp, Esq., Assistant Attorney General
Synopsis
Claimant, a pro se inmate, was awarded damages for the period he was held in disciplinary confinement beyond the date the disciplinary hearing determination was reversed.
Case information
| UID: | 2018-015-147 |
| Claimant(s): | ANTHONY ROMANO |
| Claimant short name: | ROMANO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123487 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Anthony Romano, Pro Se |
| Defendant's attorney: | Honorable Barbara D. Underwood, Attorney General By: Douglas R. Kemp, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 21, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claim herein alleges the claimant was wrongfully confined in what he describes as an "atypical placement" at the Central New York Psychiatric Center while serving a six-month period of confinement following a Tier III disciplinary hearing (claim, ¶ 8). The claim alleges the Hearing Officer relied upon information not in the hearing record, and that the claimant was not released from confinement until seven days following the date the hearing disposition was reversed on appeal.
At the trial held on June 5, 2018, the claimant testified that he objected to the Hearing Officer selected to preside over his disciplinary hearing. Claimant, who is schizophrenic, testified that he objected to the appointment of Hearing Officer McGourik as his Hearing Officer because he had filed several grievances against her in the past. At the hearing claimant stated "I'm taking the fifth" and, apparently, refused to participate in the proceedings. He was found guilty at the hearing and was thereafter confined in the Great Meadow Correctional Facility Mental Health Unit for 14 days. He was thereafter transferred to the Central New York Psychiatric Center in Marcy, New York, until his release following reversal of the disciplinary hearing determination.
Quotation was taken from the audio recording of the trial.
Two bases for the instant wrongful confinement claim are alleged in the claim. First, claimant alleges that the entire period of his disciplinary confinement was wrongful because the Hearing Officer relied upon evidence that was not from either the author of the misbehavior report or any other witnesses in violation of 7 NYCRR 254.7. Claimant contends that consideration of this evidence caused the Hearing Officer to find him guilty and increase the severity of the penalty. Second, the claimant contends that his atypical confinement at Central New York Psychiatric Center, beyond the date the disciplinary charges against him were reversed, was not privileged.
The claim incorrectly references 22 NYCRR 254.7, applicable to the Judiciary, rather than 7 NYCRR 254.7, applicable to the Department of Corrections and Community Supervision. --------
Conduct of correctional facility employees taken in furtherance of authorized disciplinary measures is quasi-judicial in nature and entitled to absolute immunity (Arteaga v State of New York, 72 NY2d 212 [1988]). There is no immunity, however, for "actions of correction personnel in physically abusing inmates (see Correction Law § 137 [5]) or in confining them without granting a hearing or other required due process safeguard (see 7 NYCRR 251-5.1; parts 252-254)" (Arteaga v State of New York, 72 NY2d 212, 221 [1988]). Inmates subject to prison disciplinary hearings are not entitled to the full panoply of due process protections afforded criminal defendants (see Wolff v McDonnell, 418 US 539 [1974]; Matter of Laureano v Kuhlmann, 75 NY2d 141, 146 [1990]). So long as the action taken falls within the discretionary authority of the Hearing Officer, the State retains its immunity even where it is later determined that discretion was abused (see Diaz v State of New York, 155 AD3d 1279, 1281 [3d Dept 2017], lv dismissed in part and denied in part 30 NY3d 1101 [2018]; Flemming v State of New York, 120 AD3d 848 [3d Dept 2014]; Shannon v State of New York, 111 AD3d 1077 [3d Dept 2013]; Loret v State of New York, 106 AD3d 1159 [3d Dept 2013], lv denied 22 NY3d 852 [2013]; Holloway v State of New York, 285 AD2d 765, 766 [3d Dept 2001]; Minieri v State of New York, 204 AD2d 982 [4th Dept 1994]; but see Bottom v State of New York, 142 AD3d 1314 [4th Dept 2016], appeal dismissed 28 NY3d 1177 [2017]).
To the extent the instant claim is premised on the contention that the Hearing Officer considered evidence other than the witnesses' testimony, he appears to be referring to the fact that the Hearing Officer considered his "history of violent acts" in rendering her disposition (Exhibit A, p. 004). Claimant's contrary contention aside, nothing contained in 7 NYCRR part 254 precludes consideration of an inmate's disciplinary history in rendering a determination. The rule claimant relies upon merely states that "where the hearing officer affirms the charges on the basis of the evidence" the hearing officer may impose one of the penalties set forth therein (7 NYCRR 254.7). There is no reason to believe that the Hearing Officer's determination was improperly influenced by claimant's past conduct and consideration of an inmate's disciplinary history is appropriate in determining the penalty to be imposed (see e.g. Matter of Scott v Coombe, 228 AD2d 996, 998 [3d Dept 1996], lv denied 89 NY2d 801 [1996]). The Hearing Officer's consideration of the claimant's disciplinary history in assessing the appropriate penalty therefore fell well within the broad discretionary authority conferred and may not form the basis for a wrongful confinement claim.
The failure to timely release the claimant from disciplinary confinement requires a different result. Unlike the actions of correction staff in preparing and filing misbehavior reports, confining inmates, and making dispositions following disciplinary hearings, the timely release of an inmate from disciplinary confinement involves no discretion and the State is not immune from suit for any damages that may result (see Hernandez v State of New York, 48 Misc 3d 218, 219, [Ct Cl, 2015]).
To establish a claim of false imprisonment, claimant must " 'show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged' " (Nazario v State of New York, 75 AD3d 715, 718 [3d Dept 2010], lv denied 15 NY3d 712 [2010], quoting Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). Here, claimant demonstrated by a preponderance of the credible evidence that all of these elements were satisfied. With respect to the privilege issue, which in most cases is the most difficult element to fulfill, it is undisputed that claimant's continued punitive confinement beyond the date the hearing determination was reversed was not privileged (see Miller v State of New York, 124 AD3d 997 [3d Dept 2015]; Minieri v State of New York, 204 AD2d 982 [4th Dept1994]; Aviles v State of New York, UID No. 2017-018-850 [Ct Cl, Fitzpatrick, J., Nov. 30, 2017]). Consequently, claimant is awarded damages in the amount of $250 for the period March 28, 2013, the date the hearing determination was reversed, through April 3, 2013, the last full day of his disciplinary confinement-a period of seven days. To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).
Let judgment be entered accordingly.
August 21, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims