New York State Court of Claims

New York State Court of Claims
GORDON v. THE STATE OF NEW YORK, # 2018-044-002, Claim No. 124630


Inmate claimant's claim for wrongful confinement for 15 days in SHU prior to conclusion of disciplinary hearing (for charges of smuggling and drug possession) dismissed after trial. Claimant found not guilty after disciplinary hearing because his correspondence detailing how the smuggling was to be carried out was opened by CO without proper authorization. Court found there is no private right of action for violation of that particular regulation; claimant was not harmed because he was found not guilty; extension of time within which to complete hearing was authorized, and thus hearing was timely concluded.

Case information

UID: 2018-044-002
Claimant(s): GERALD GORDON
Claimant short name: GORDON
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 124630
Motion number(s):
Cross-motion number(s):
Claimant's attorney: GERALD GORDON, pro se
BY: Douglas H. Squire, Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 9, 2018
City: Binghamton
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim to recover damages for his allegedly wrongful confinement in a Special Housing Unit (SHU) as a result of an Inmate Misbehavior Report (IMR) issued in May 2014 while he was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility (Elmira). A trial in this matter was conducted by video conference on March 28, 2018, with the parties appearing at Elmira, and the Court sitting in Binghamton, New York.

Claimant testified that on May 13, 2014, he was issued an IMR(1) charging him with violations of Prison Disciplinary Rules 113.25 (drug possession) and 114.10 (smuggling). The IMR indicates that Correction Officer (CO) Cyrczak went to the mailroom to review an envelope apparently submitted for mailing by claimant which was too thick to go through the postage machine. The IMR indicates that the contents of any item which is too thick to go through the postage machine must be checked, pursuant to DOCCS directive 4422. The IMR also indicates that the letter contained step by step instructions on how to smuggle items into the package room. Cyrczak indicated in the IMR that he determined that claimant wrote the letter by comparing it with handwriting in claimant's personnel file.

Claimant said that after the IMR was issued he was placed in SHU. Claimant acknowledged that a Superintendent's Hearing was commenced on May 19, 2014 and concluded on May 28, 2014. The hearing packet(2) indicates that claimant was found not guilty of the charges, based upon Cyrczak's report, oral testimony and the absence of a valid "mail watch."(3)

Claimant concluded by arguing that because he was found not guilty of the charges, the 15 days he was confined in SHU constituted wrongful confinement. He further contended that the failure to obtain the prior written authorization of the superintendent to open his mail pursuant to 7 NYCRR 720.3 (e)(4) ,(5) was a violation of DOCCS rules and thus a violation of his due process rights.

Defendant did not call any witnesses, but moved to dismiss on the basis that the confinement was discretionary, and thus immune, and further argued that the commencement and conclusion of the hearing were both timely. Defendant rested its case and the Court reserved decision.

In order to establish a prima facie case of wrongful confinement - a "species" of the tort of false imprisonment (Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 1986]) - a claimant must show that "(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). In this instance, there is no dispute that defendant both intended to and did confine claimant without his consent in SHU on May 13, 2014. Therefore, the only remaining issue is whether that confinement was privileged.

It is well-settled that where DOCCS employees, in commencing and conducting formal inmate disciplinary proceedings, "act under the authority of and in full compliance with the governing statutes and regulations . . . their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity" (Arteaga v State of New York, 72 NY2d 212, 214 [1988]; see also Varela v State of New York, 283 AD2d 841 [3d Dept 2001]).

This immunity may be lost if defendant violates its own rules and regulations in conducting the hearing or otherwise acts outside the sphere of privileged actions and deprives the claimant of a due process safeguard (Arteaga, 72 NY2d at 220-221).(6)

Ordinarily, the violation of a rule or regulation alone is not a sufficient basis for a monetary award. The violation must also have caused an actual injury or loss to the claimant (see e.g. Rivera v State of New York, UID No. 2006-028-008 [Ct Cl, Sise, P.J., Feb. 8, 2006]).

Claimant essentially contends that the violation of 7 NYCRR 720.3 (e), which occurred when CO Cyrczak opened his outgoing correspondence without the requisite authorization, was a violation of claimant's due process rights such that defendant's immunity was compromised, and that he is accordingly entitled to recovery for wrongful confinement.

Claimant has established that 7 NYCRR 720.3 (e) was violated by CO Cyrczak's failure to obtain written authorization prior to opening claimant's mail, and this was not controverted by defendant. To the extent that claimant is seeking damages solely as a result of the violation of this regulation, however, such a cause of action is without merit. Not every violation of a directive or regulation provides a private right of action, particularly when there are other available remedies such as the inmate grievance process, and if claimant is unsatisfied, judicial review pursuant to CPLR Article 78. In light of these available remedies, this Court joins other Courts in declining to find that a private cause of action for money damages can be brought for a violation of this regulation governing inmate correspondence (see Bennet v State of New York, UID No. 2006-013-003 [Ct Cl, Patti, J., Feb. 21, 2006] [holding that a violation of 7 NYCRR 720.3 (e) does not support a private right of action]; see also Campolito v State of New York, UID No. 2000-015-507 [Ct Cl, Collins, J., Apr. 27, 2000] [holding that a violation of the regulation governing the opening of privileged correspondence (7 NYCRR 721.3) does not give rise to a private cause of action for damages]).

Moreover, to the extent that claimant is arguing that his confinement was wrongful because the evidence of his alleged wrongdoing was improperly obtained, this contention is not persuasive. Although the confiscated letter should not have been admitted at the disciplinary hearing, claimant was not harmed as he was found not guilty at the conclusion of the hearing and immediately released from SHU (cf. Craft v State of New York, UID No. 2001-029-113 [Ct Cl, Mignano, J., Oct. 31, 2001] [where the Court found that the introduction of evidence improperly obtained in violation of 7 NYCRR 720.3 [e] - which directly resulted in the claimant's disciplinary conviction - was violative of her due process rights, and thus her post-hearing confinement in keeplock was not privileged].

The only issue remaining to be resolved is whether claimant's confinement to SHU for the time between the issuance of the IMR and the conclusion of the disciplinary hearing was authorized. Pursuant to 7 NYCRR 251-5.1 (a), "[w]here an inmate is confined pending a . . . superintendent's hearing, the hearing must be commenced as soon as is reasonably practicable . . . but in no event may it be commenced beyond seven days of said confinement without authorization." Moreover, "[t]he . . . superintendent's hearing must be completed within 14 days following the writing of the [IMR] unless otherwise authorized" (7 NYCRR 251-5.1 [b]). The IMR indicates that the incident occurred on May 13, 2014, at which time claimant was sent to SHU. The hearing commenced on May 19, 2014, within seven days as required.(7) The hearing was concluded on May 28, 2014, the 15th day after confinement.(8) However, extensions of time to conduct such hearings may be authorized upon request, pursuant to 7 NYCRR 251-5.1 (a) and (b). In this instance, an extension of time within which to conclude the hearing was requested based upon the unavailability of a hearing officer,(9) and the request was granted, extending the date the hearing was required to be concluded to May 28, 2014.(10) The Court finds that the disciplinary hearing was both timely commenced and - based upon the extension - timely concluded, at which time claimant was properly found not guilty and released. Accordingly, claimant's 15-day confinement in SHU was privileged.

Claimant has failed to establish a prima facie case and accordingly, defendant's motion to dismiss Claim No. 124630 is hereby granted. Any and all motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.

Let judgment be entered accordingly.

April 9, 2018

Binghamton, New York


Judge of the Court of Claims

1. Defendant's Exhibit A.

2. Defendant's Exhibit B.

3. Id. at 8.

4. 7 NYCRR 720.3 (e) provides in pertinent part that "[o]utgoing correspondence . . . shall not be opened, inspected, or read without express written authorization from the facility superintendent."

5. Claimant's testimony in essence indicated that the authorization required by 7 NYCRR 720.3 to open his mail was called a "mail watch."

6. "Where an alleged regulatory violation implicates no constitutionally required due process safeguard, however, the State retains its absolute immunity from liability" (Bethune v State of New York, UID No. 2015-015-098 [Ct Cl, Collins, J., Dec. 7, 2015]).

7. "In calculating [the seven-day period], the day the misbehavior report is written is excluded" (Matter of Agosto v Selsky, 39 AD3d 1106 [3d Dept 2007]).

8. Defendant's Exhibit B at 7-8.

9. id. at 16.

10. Id. at 17.