New York State Court of Claims

New York State Court of Claims
MARMOL v. THE STATE OF NEW YORK, # 2018-040-001, Claim No. 122608

Synopsis

Court finds Claimant failed to establish by a preponderance of the credible evidence adduced at trial that Defendant was negligent in holding Claimant's Tier Hearing.

Case information

UID: 2018-040-001
Claimant(s): ERNESTO MARMOL
Claimant short name: MARMOL
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) : Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 122608
Motion number(s):
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: Ernesto Marmol, Pro Se
Defendant's attorney: ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Thomas R. Monjeau, Esq., AAG
Third-party defendant's attorney:
Signature date: January 2, 2018
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Pro se Claimant, Ernesto Marmol, failed to establish by a preponderance of the credible evidence that Defendant was liable in connection with his Claim. The trial of this Claim was held by video conference on October 18, 2017, with the parties at Eastern NY Correctional Facility (hereinafter, "Eastern") in Napanoch, New York, and the Judge at the Court of Claims in Albany, New York.

At trial, the Court had marked as Court Exhibits 1 and 2, respectively, Claimant's filed Claim and the State's Answer. The State submitted into evidence one document, a copy of the Claim, with exhibits attached, served upon the Attorney General (Ex. A). Claimant was the only witness to testify at trial.

Claimant testified with the aid of a Spanish/English interpreter, Alice Smith, a New York State certified Court interpreter. The following was established at trial, based upon Claimant's testimony and Exhibit A: that, on December 31, 2012, Claimant had a visit with his family in the visitor's room at Eastern; that the visit had been emotional, he was not happy after the visit, and that his "mind was blocked;" that, following the visit, Claimant was strip-searched by a correction officer (hereinafter, "CO") before he could return to his cell. Claimant stated that he took his clothes off behind a curtain, handed them to the CO, who threw them on the floor and told Claimant he had to bend over. Claimant stated that he did so, but the CO said he did not, and, again, directed Claimant to bend over. Claimant asserts that the CO told him to bend over five times and that he did so five times, but the CO kept saying that Claimant was not complying with the order to bend over. A sergeant was called to the area and Claimant was taken to the Special Housing Unit (hereinafter, "SHU") (see Ex. 1 attached to Ex. A). Claimant was issued a misbehavior report charging him with failing to comply with frisk procedures and failing to comply with a direct order (Ex. 1 attached to Ex. A). A disciplinary hearing was commenced on January 4, 2013 and concluded on January 23, 2013 (Ex. 2 attached to Ex. A). At the conclusion of the hearing, Claimant was found guilty of the charges and the penalty imposed included one month in SHU (see id.). While Claimant was preparing an administrative appeal of the determination, he received a Memorandum, dated February 28, 2013, from Lieutenant Simmons at Eastern, informing him that the hearing based upon the December 31, 2012 incident was "reversed and expunged due to a technicality" (Ex. 6 attached to Ex. A). It appears that the tape was erased while being copied pursuant to a Freedom of Information Law request made by Claimant (see Ex. 3 attached to Ex. A).

The Appellate Division, Third Department stated in Loret v State of New York, 106 AD3d 1159, 1159-1160 [2013], lv denied 22 NY3d 852 [2013]:

"[A]ctions 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, [defendant] has absolute immunity for those actions" (Holloway v State of New York, 285 AD2d 765, 765 [3d Dept] [2001]; see Arteaga v State of New York, 72 NY2d 212, 215-216 [1988]; Pryor v State of New York, 92 AD3d 1047, 1048 [3d Dept] [2012]; Varela v State of New York, 283 AD2d 841, 841 [3d Dept] [2001]). Here, claimant has not articulated any facts to 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.

The Court has considered the evidence, including a review of the Court exhibits, listening to Claimant's testimony and observing his demeanor as he did so. The Court finds that Claimant failed to establish by a preponderance of the credible evidence that the misbehavior report he was issued was written in violation of any governing statutes or regulations or that the hearing officer exceeded his authority during the disciplinary hearing. All he offered was his own self-serving testimony that he complied with the CO's directive.

Therefore, based upon the foregoing, the Court concludes that Claimant failed to establish by a preponderance of the credible evidence his claim that he was wrongfully confined and the Claim is hereby dismissed.

All motions made at trial upon which the Court reserved decision are hereby denied.

The Chief Clerk is directed to enter judgment accordingly.

January 2, 2018

Albany, New York

CHRISTOPHER J. McCARTHY

Judge of the Court of Claims