New York State Court of Claims

New York State Court of Claims
DIAZ v. STATE OF NEW YORK, # 2018-053-008, Claim No. 127064


After trial, a pro se claim for wrongful confinement is dismissed. Claimant failed to establish that a violation of any due process regulation proximately caused his alleged wrongful confinement.

Case information

UID: 2018-053-008
Claimant(s): XAVIER DIAZ
Claimant short name: DIAZ
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127064
Motion number(s):
Cross-motion number(s):
Claimant's attorney: XAVIER DIAZ, PRO SE
Defendant's attorney: HON. BARBARA D. UNDERWOOD
New York State Attorney General
BY: Bernard F. Sheehan, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 10, 2018
City: Buffalo
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant Xavier Diaz filed a claim for wrongful confinement arising out of an incident on June 10, 2015 when claimant was accused of engaging in a fight with another inmate while he was an inmate at Livingston Correctional Facility (Livingston). As a result of this incident, a misbehavior report was filed and a Tier III disciplinary hearing conducted where claimant was found guilty of four charges and was then placed in the special housing unit (SHU) for approximately 65 days. The Superintendent of the Department of Corrections and Community Supervision (DOCCS) subsequently reversed that decision on the basis that the correction officer filing the inmate misbehavior report did not testify at the disciplinary hearing.

The trial of this claim was held via video conference on June 28, 2018. The claimant testified at trial and two exhibits were introduced in support of his claim. In defense of the claim, the State produced Correction Officer C. Alger (CO Alger) and Lieutenant John McCready (Lt. McCready) and introduced nine exhibits.

The claimant testified that at the time of the incident, he was involved in a basketball game and had been hit by an elbow underneath his left eye that had caused a bruise and cut. He testified that he was on his way to the men's room when he observed two inmates fighting. Claimant testified that he was then stopped by CO Alger, who accused him of being involved in a fight with an inmate named Ayala. Claimant testified that he told CO Alger that he was not involved in a fight with inmate Ayala, explaining to CO Alger that he had cut his eye while playing basketball. Claimant testified that the bathroom where he was stopped by CO Alger was about 40 feet away from where he observed the fight taking place. Claimant's testimony differed from his Appeal Form to Commissioner dated June 23, 2015 (Exhibit 2), in which he stated that the fight was taking place 70 to 75 feet away from where he was stopped by CO Alger.

On cross-examination, claimant was shown the photographs of his injuries taken at the infirmary, which he agreed showed bruising and swelling to his left hand in addition to the cut and bruise under his left eye. Claimant also agreed that he had not stated that he had been playing basketball at his Tier III disciplinary hearing. He also did not include this allegation in his Appeal Form to Commissioner (Exhibit 2).

CO Alger testified that he has worked for DOCCS at Livingston for 23 years and supervises the inmate recreation yard. On the day of the incident, he testified that he responded to a notification that a fight was taking place at the handball court. When received, he was about 50 yards from that location and the bathroom was between his location and the handball court. As he approached the bathroom, he observed claimant running from the location of the fight and in the process of changing his shirt. He testified that he also noticed that claimant had a cut on his left cheek. CO Alger stated that the reason claimant would be changing his shirt would be in an attempt to disguise his identity. When he approached claimant, claimant was out of breath and made an admission to him, "you got me Alger". CO Alger testified that he then placed claimant in cuffs because he had concluded that he had been in a fight. CO Alger also stated that he then reported what had occurred to Lt. McCready.

Lt. McCready testified that he has worked for DOCCS for about 29 years and explained that at the time of the incident, his rank was sergeant. Lt. McCready testified that on the day of the incident, he was the program sergeant in charge of the program and recreation areas. He was in his office at the time that the notification of a fight occurred and was about two minutes from the recreation yard. When he arrived, he observed CO Alger with claimant, who by then had been placed in cuffs. He also observed inmates Lopez and Ayala in cuffs and all three inmates were then taken to the infirmary. Lt. McCready testified that he also observed the cut beneath claimant's left eye. Lt. McCready testified that he interviewed all three inmates separately but that claimant refused to provide him with a statement. He testified that claimant also said nothing to him about being on the basketball court at the time of the incident. Lt. McCready testified that inmate Ayala admitted to him that he was in a fight with claimant. He testified that inmate Lopez admitted that he had fought with inmate Ayala as he had stepped in to help his friend, inmate Diaz. Lt. McCready testified that in his investigation, he also interviewed and relied upon the testimony of two correction officers, CO Alger and Russell.

Once Lt. McCready completed his investigation, he testified that he prepared a report to Lieutenant Johnson (Exhibit C1). Lt. McCready testified that it was his conclusion that inmate Ayala had been assaulted by claimant with an unrecovered cutting instrument while Ayala was sitting at a table in the yard. When inmate Ayala stood up and attempted to leave the area, he was then pursued by claimant and Ayala turned and punched claimant in the face, knocking him to the ground. It was at this point that inmate Lopez began fighting in the handball court with inmate Ayala. Lt. McCready was also questioned about the inmate misbehavior report that he prepared (Exhibit D), which was consistent with his testimony. On cross-examination, claimant asked Lt. McCready how he concluded that he had cut inmate Ayala. Lt. McCready responded that this information was provided to him by confidential sources at Livingston, whose statements were confirmed by his interviews with correction officers working in the yard and as such, he believed them to be true.


The enactment of Court of Claims Act 8 waived the State's immunity for certain governmental actions, but the State retains its immunity for governmental actions which require expert judgment or the exercise of discretion (Arteaga v State of New York, 72 NY2d 212, 216 [1988]). The Court of Appeals has held that this immunity remains absolute when the governmental action involves the conscious exercise of discretion in a judicial or quasi-judicial proceeding (Arteaga, supra at 216). The actions of DOCCS employees in preparing and filing misbehavior reports and in holding and conducting Tier III disciplinary hearings are quasi-judicial in nature and the State retains absolute immunity (Arteaga, supra at 219).

The law is settled that while the conduct of correctional facility employees taken in furtherance of authorized disciplinary measures is quasi-judicial in nature and entitled to absolute immunity, that immunity is lost for "actions of correction personnel in . . . confining [inmates] without granting a hearing or other required due process safeguard (see, 7 NYCRR 251-5.1; parts 252-254)" (Arteaga, supra at 221). While inmates have a right to call witnesses on their behalf, that right is conditioned on the hearing officer's determination that the anticipated testimony "is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals" (7 NYCRR 254.5 [a]). It has been held that the improper denial of an inmate's request for a witness at a prison disciplinary hearing on the ground of relevance may form the basis for a wrongful confinement claim because the denial constitutes a violation of 7 NYCRR 254.5(a) and a denial of the due process safeguards contained within 7 NYCRR part 254 (Bottom v State of New York, 142 AD3d 1314 [4th Dept 2016], appeal. dismissed 28 NY3d 1177 [2017]).


Upon review and consideration of the testimony and evidence presented at trial, it is the opinion of this Court that claimant has failed to establish by a preponderance of the credible evidence that a violation of one of the governing due process regulations proximately caused his allegedly wrongful confinement. It has been held that in order to establish a claim of false imprisonment, claimant has the burden of proof to demonstrate 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]). Although the Court finds that claimant met his burden of proof with respect to the first three elements, he failed to establish that the confinement was not otherwise privileged. A confinement is considered privileged unless it is established that without a due process violation, the outcome of the hearing would have been different (Moustakos v State of New York, 133 AD3d 1268 [4th Dept 2015]).

The Court finds after listening to claimant's testimony and observing his demeanor while testifying that he was not credible. The Court finds that the injuries received by claimant on the day of the incident were consistent with those that would occur from a fistfight. The Court did not find credible claimant's allegation that he cut and bruised his left eye during a basketball game, which he raised for the first time at trial. The Court listened to the entire Tier III disciplinary hearing tape and at no point did claimant ever allege that he had been playing basketball. Furthermore, claimant did not state that he was playing basketball in his handwritten Appeal to Commissioner, when he appealed the disciplinary hearing determination. The Court also finds significant the fact that when claimant was given an opportunity to profess his innocence when he met separately with Lt. McCready during his investigation, he refused to answer Lt. McCready's questions. On the other hand, the Court finds Lt. McCready's testimony credible, including his testimony and report that when he met separately with the other two inmates involved, Ayala and Lopez, both admitted their roles in the fight and that claimant was involved in a fight with inmate Ayala.

During the course of the initial Tier III disciplinary hearing on June 16, 2015, claimant requested and was given an adjournment in order to call witnesses in his defense. The hearing was then reconvened on June 22, 2015, at which time the hearing officer asked claimant if he intended to call witnesses and he specifically waived this right (Exhibit E). Furthermore, claimant presented no evidence at this trial to demonstrate that the outcome of the Tier III disciplinary hearing would have been different had Lt. McCready testified.

CO Alger and Lt. McCready did testify at this trial and the Court finds that their testimony was credible. Importantly, Lt. McCready testified consistent with what he had reported in the inmate misbehavior report and nothing during cross examination placed any of the information in that document in question. The Tier III disciplinary hearing officer indicated in her decision that while considering claimant's allegation that he was 70 feet away in a different location, she found the contents of the inmate misbehavior report to be credible and relied upon them in making her determination that claimant was guilty of the four charges. Claimant's cross-examination of Lt. McCready at this trial did not alter his testimony in any manner or cause the Court to doubt the credibility of Lt. McCready's investigation or of the contents of the inmate misbehavior report. Accordingly, claimant has failed to establish his claim for wrongful confinement as a matter of law. As to any objections upon which this Court reserved decision during the course of the trial and as to any motions made at trial upon which the Court previously reserved or which remain undecided, all are hereby denied. Claim no. 127064 is hereby dismissed.

Let judgment be entered accordingly.

August 10, 2018

Buffalo, New York


Judge of the Court of Claims