Opinion
# 2016-015-610 Claim No. 118155
08-08-2016
JACK VIGLIOTTI v. THE STATE OF NEW YORK
Jack Vigliotti, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Thomas Trace, Esquire Senior Attorney
Synopsis
Inmate's wrongful confinement causes of action were dismissed following trial. The Court found that although defendant was not immune from liability for the Hearing Officer's violation of certain ministerial due process safeguards, claimant failed to establish that the confinement was not privileged because he offered no evidence that the outcome of the hearing would have been different had not error occurred.
Case information
| UID: | 2016-015-610 |
| Claimant(s): | JACK VIGLIOTTI |
| Claimant short name: | VIGLIOTTI |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 118155 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Jack Vigliotti, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Thomas Trace, Esquire Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | August 8, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, a former inmate, seeks damages for wrongful confinement following the issuance of misbehavior reports on April 27, 2008 and May 30, 2008.
The first disciplinary proceeding involved a tier II hearing with respect to a misbehavior report issued at Attica Correctional Facility on April 27, 2008. Following commencement of the proceeding, claimant requested that a correction sergeant be called as a witness. As alleged in the claim, the Hearing Officer indicated that the request would be granted and adjourned the hearing. The hearing recommenced on April 30, 2008 and concluded without the testimony of the sergeant as requested by the claimant. Claimant was found guilty of the charges against him and a penalty of 15 days keeplock confinement and 15 days loss of privileges was imposed. The penalty was modified on appeal and claimant commenced a proceeding pursuant to CPLR article 78 alleging various procedural violations.
The claim further alleges that while the proceeding was pending the Attorney General's Office requested that the Deputy Superintendent for Security at Elmira Correctional Facility review the hearing record. On July 6, 2009 the underlying disciplinary determination was administratively reversed and all references to the proceeding were expunged from the claimant's records. The claim also asserts causes of action arising at Midstate Correctional Facility following the issuance of a misbehavior report on May 30, 2008. Claimant alleges that although a hearing commenced on June 10, 2008, he was never advised of the hearing which was conducted in absentia. The Hearing Officer imposed a penalty of six months special housing confinement, six months loss of privileges and two months loss of good time. The disciplinary proceeding was affirmed on appeal on July 23, 2008 and on September 2, 2008 claimant filed an article 78 proceeding challenging the result. Supreme Court, Albany County (Devine, J.) annulled the determination of the Hearing Officer and remanded the matter for a rehearing in a decision dated February 23, 2009.
At trial the claimant testified that he and his wife participated in a family reunion visit in a trailer at Attica Correctional Facility. Normally, prior to the commencement of a visit, each of the items within the trailer where the visit is to take place are catalogued and counted in the presence of the inmate and a private contractor hired by the facility to administer the program. Claimant contends, however, that on this visit no such cataloguing of items was performed and, at the conclusion of the visit, the claimant's wife noticed that one of the six required butter knives was missing. While claimant agreed that a butter knife was, in fact, missing it was his contention at trial that the knife "was never there." Claimant advised a correction officer that the knife was missing and was issued two misbehavior reports, the first for the misappropriation and/or loss of State property and the second for violation of the Family Reunion Program regulations. Claimant testified he requested that Sergeant Sheiffer testify at the disciplinary hearing, that his request was never formally denied, and that despite his request Sergeant Sheiffer was not called as a witness at the hearing. Claimant subsequently filed an article 78 proceeding which was pending at the time the tier II hearing determination was administratively reversed and all references expunged from the claimant's institutional records.
The precise spelling of the Sergeant's name was not specified at trial.
On cross-examination claimant contended that there were only five and not the required six knives in the trailer at the time of his family reunion visit. He agreed that he had been found not guilty by the Hearing Officer of violating the Family Reunion Program regulations.
With regard to the tier III misbehavior report issued at Midstate Correctional Facility on May 30, 2008, claimant was charged with failure to obey a direct order, creating a disturbance, verbal harassment, using obscene language and threats. According to claimant, at this time he had been designated "a mental health status number 1" which he described as the highest and most severe classification. Claimant was taken to the Mental Health Unit for observation where he stopped eating for a period of seven to eight days. It was claimant's contention at trial that departmental regulations prohibit the conducting of a hearing while an inmate is under mental health observation. Notwithstanding this alleged violation of department regulations, a hearing was held at which the claimant was found guilty of all infractions charged. Claimant testified and the claim asserts that he was never advised of the hearing and was thereby denied the opportunity to appear and provide testimony on his own behalf. The hearing disposition was affirmed on appeal and claimant commenced an article 78 proceeding alleging various regulatory and due process violations. Supreme Court, Albany County (Devine, J.) found for the petitioner and remanded the matter for a rehearing. Thereafter, the Department of Corrections and Community Supervision (DOCCS) reversed the original hearing determination and expunged the matter from claimant's institutional record.
On cross-examination claimant testified that he refused to sign a Request to Waive Appearance form presented to him on June 10, 2008 (Exhibit B-5). He also refused to sign a tier III Case Data Worksheet form which, among other things, indicates in the Notes section of the form "Released from OBS 6-5" (Exhibit B-14). In this regard claimant's internal movement records for his time at Midstate indicate he was transferred to "MH-OB-O5S" on May 30, 2008, and was transferred from that same unit to "HS-IO-DO1" on June 5, 2008. A Disciplinary Hearing Extension Request form dated June 3, 2008 requests an extension of time to commence claimant's hearing for the reason he had been "sent to observation/special watch" (Exhibit B-19). The request was granted and the hearing was required "to commence within 7 days and complete within 14 days of release from MHU/OBS status" (Exhibit B-21). Finally, claimant acknowledged that Exhibits B-18 (Hearing Record Sheet) and B-20 (Witness Interview Notice), both dated June 10, 2008, indicate the hearing officer received confidential OMH testimony at claimant's disciplinary hearing.
The defendant called Lieutenant Darryl Borawski as a witness. Lieutenant Borawski testified that he has been employed by DOCCS since 1983 and estimated that he has conducted approximately 1,000 disciplinary hearings since he first became a Lieutenant in 2006.
Reviewing the contents of Exhibit A, the witness testified that he acted as a Hearing Officer at a disciplinary hearing arising from a misbehavior report dated April 27, 2008 which charged the claimant with having violated Rule 116.10 prohibiting an inmate from destroying or otherwise misusing state property as well as a violation of the Family Reunion Program regulations. The hearing concluded on April 30, 2008 after a finding that the claimant was guilty of violating Rule 116.10, and not guilty of violating Family Reunion Program rules. The claimant was ordered to be keeplocked until May 12, 2008 together with the loss of package, commissary and phone privileges. The keeplock sentence was reduced from May 12, 2008 to May 5, 2008 subsequent to the conclusion of the hearing.
Lieutenant Borawski testified that in reaching his decision he relied upon the contents of the written misbehavior report, the testimony of a counselor and that of the claimant. The witness did not recall the claimant requesting any witnesses and related that the documents contained in Exhibit A did not include any reference or documentation indicating the claimant requested the production of witnesses. In any event, Lieutenant Borawski stated his view that the testimony of the Sergeant would be irrelevant because he was not involved in inventorying the Family Reunion Program property and was otherwise uninvolved in the underlying incident.
According to the witness, inmates participating in the Family Reunion Program are required to sign documents attesting that they are responsible for all contents of the Family Reunion Program units, including linens, silverware, cooking utensils and any other items contained within the unit. Claimant was given a 15-day keeplock sentence which was later reduced, and the actual period during which claimant was keeplocked extended from April 27, 2008 to May 5, 2008.
On cross-examination the witness testified that the Sergeant who claimant contends he sought to have testify at the hearing merely endorsed the ticket, and that any Sergeant may endorse a ticket even though he or she may have had no personal involvement in the underlying event. Even if the Sergeant had discussed the matter with the claimant at the Family Reunion Program unit, his only involvement, according to the witness, was after the fact and therefore not relevant to a determination of the charges at the hearing.
The defendant also called Karen Phillips who testified that in May 2008 she was employed as a Senior Corrections Counselor at Midstate Correctional Facility. As part of her duties, she acted as a hearing officer with regard to a misbehavior report involving the claimant dated May 30, 2008. Ms. Phillips testified that the claimant refused to attend the hearing, which was held on June 10, 2008, and that she relied upon the contents of the misbehavior report, which she viewed as credible, in finding the claimant guilty of each of the four charges set forth in the report. She also considered a confidential Office of Mental Health tape in determining that the claimant was able to understand his actions, and that his mental health was not a mitigating factor. Claimant challenged the hearing determination in an article 78 proceeding in which the Court reversed the determination, finding there was inadequate evidence to demonstrate that the claimant voluntarily and knowingly waived his right to appear at the hearing.
The witness agreed that department regulations (7 NYCRR 254.6) impose restrictions regarding hearings involving inmates whose mental state or intellectual capacity prevent him or her from meaningful participation in the hearing process. For that reason, according to the witness, although the incident involving the claimant occurred on May 30, 2008, no hearing could be undertaken until the claimant was released from mental health observation on June 6, 2008. The hearing, conducted on June 10, 2008, was held only following the claimant's release to the infirmary and the Hearing Officer's review of a confidential Office of Mental Health tape regarding claimant's competence.
The witness acknowledged that she did not receive testimony from the correction officer who issued the misbehavior report prior to finding the claimant guilty of the offenses charged. She testified that in light of the claimant's refusal to appear, she concluded that the allegations contained in the report, which she viewed as credible, were uncontroverted, resulting in a determination finding the claimant guilty of the violations charged. It was her understanding that department regulations prohibit conducting disciplinary hearings which involve inmates who are housed in mental health "crisis cells". Given the claimant's release from mental health observation on June 6, 2008, it was her view that he was no longer in crisis and, therefore, the hearing could proceed. She also testified that a department directive referenced by the claimant in his testimony also does not prohibit the holding of a disciplinary hearing with regard to inmates engaged in a hunger strike, as participation in a hunger strike may, or may not, be related to a mental health issue.
On redirect examination, the witness testified that the misbehavior report identified a second correction officer and a sergeant as being present when the claimant began making threats against Officer Critelli, the author of the report. The presence of these additional individuals as noted in the report, in her view, supported the conclusion that the facts related in the misbehavior report were credible.
The first issue for determination is whether the defendant is immune from liability for the conduct alleged in this case. The law is settled that 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]; Matter of Kairis v State of New York, 113 AD3d 942 [3d Dept 2014]; Loret v State of New York, 106 AD3d 1159 [3d Dept 2013]; Shannon v State of New York, 111 AD3d 1077 [3d Dept 2013]). The Court of appeals in Arteaga made clear, however, that the State is not immune from liability 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, 72 NY2d at 221). Consequently, absolute immunity is lost for a violation of a due process safeguard embodied in one of the ministerial rules or regulations governing the conduct of disciplinary hearings.
With respect to the incident of April 27, 2008, claimant asserts that he was deprived of his right to call Sergeant Sheiffer as a witness on his own behalf at the hearing. An inmate has a constitutional right to call witnesses on his behalf "provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals" (7 NYCRR 254.5 [a]; see Wolff v McDonnell, 418 US 539, 563-570 [1974]; Matter of Laureano v Kuhlmann, 75 NY2d 141, 146-147 [1990]). Where a request for witnesses is denied outright, without a stated good-faith reason for the denial, a constitutional violation occurs and the Hearing Officer's determination must be annulled and the matter expunged from the inmate's institutional records (Matter of Alvarez v Goord, 30 AD3d 118, 121 [3d Dept 2006]; see also Matter of Edwards v Fischer, 87 AD3d 1328 [4th Dept 2011]; Matter of Caldwell v Goord, 34 AD3d 1173 [3d Dept 2006]; Matter of Escoto v Goord, 9 AD3d 518 [3d Dept 2004]). In the Court's view, the Hearing Officer's denial of claimant's request to call Sergeant Sheiffer as a witness on his behalf without stating a good faith reason therefor is not protected by the immunity which would otherwise attach to discretionary quasi-judicial determinations.
With regard to the hearing relating to the incident of May 30, 2008, which was held in claimant's absence due to his refusal to attend, 7 NYCRR 254.6 (a) (2) provides that "[t]he inmate shall be present at the hearing unless he or she refuses to attend, or is excluded for reasons of institutional safety or correctional goals. . ." Here, the error resulting in annulment of the disciplinary determination was the Hearing Officer's failure to establish that claimant's waiver of his right to attend the hearing was voluntarily made with knowledge of the fact that the hearing would be held in his absence (see defendant's Exhibit B-8; Matter of Tafari v Selsky, 40 AD3d 1172 [3d Dept 2007]). Insofar as an inmate's right to attend a disciplinary hearing is one of the ministerial due process safeguards embodied in 7 NYCRR 254.6 (a) (2), defendant's violation of this right is not protected by absolute immunity.
Notwithstanding the loss of immunity for defendant's violation of applicable due process safeguards, claimant is not relieved from establishing the material elements of a tort claim (see Lauer v City of New York, 95 NY2d 95, 99-101 [2000]; Tango v Tulevech, 61 NY2d 34, 40 [1983]; Moustakos v State of New York, 133 AD3d 1268 [4th Dept 2015]). As recently stated by the Court in Moustakos (133 AD3d at1269):
"Where, as here, a prison inmate contends that he was wrongfully confined as a result of the flawed prison disciplinary proceeding, once the absolute immunity is removed by showing that the governing rules and regulations were not followed, he [or she] may recover damages if he [or she] is able to prove the traditional elements of the tort of [unlawful confinement]: (1) that the confinement was intentional; (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" (Kilpatrick v State of New York, Ct Cl, Dec. 2001, Patti, J., claim No. 100462, UID No. 2001-013-031, citing Broughton v State of New York, 37 NY2d 451, 456 [1975]; cf. Lamage v State of New York, 31 Misc 3d 1205[A], 2010 NY Slip Op 52393[U], *2-3 [2010]).
While there is no dispute as to the first three elements, claimant failed to establish the fourth element, that the two periods of confinement were not privileged, because there is no evidence that the outcome of the hearings would have been different had no errors occurred (see Moustakas, 133 AD3d at 1270 ; see also Watson v State of New York, 125 AD3d 1064 [3d Dept 2015]). With respect to the incident of April 27, 2008 at Attica Correctional Facility, the Hearing Officer, Lieutenant Borawski, testified that the witness claimant requested, Sergeant Sheiffer, only endorsed the misbehavior report and had no firsthand knowledge of the incident. Inasmuch as claimant failed to refute this contention or otherwise establish that the proposed testimony of Sergeant Sheiffer was exculpatory and would likely have changed the outcome of the hearing (see id.), claimant failed to establish that the confinement was not privileged.
With respect to the incident of May 30, 2008 at Midstate Correctional Facility, claimant also failed to show how his attendance at the hearing would likely have changed the result. In fact, claimant offered no testimony at all regarding the details of the incident nor did he assert that he was in any way prejudiced by the holding of the hearing in his absence. As a result, claimant failed to establish that the two periods of confinement to which he was subjected as the result of the two hearings were not privileged.
Based on the foregoing, the claim is dismissed.
All motions on which the Court may have previously reserved decision or which were not previously determined are hereby denied.
Let judgment be entered accordingly.
August 8, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims