New York State Court of Claims

New York State Court of Claims
BILLUPS v. THE STATE OF NEW YORK, # 2021-059-055, Claim No. 134770, Motion No. M-96153


Case information

UID: 2021-059-055
Claimant short name: BILLUPS
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 134770
Motion number(s): M-96153
Cross-motion number(s):
Claimant's attorney: Solomon Billups, pro se
By: Dorothy M. Keogh, Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 10, 2021
City: Hauppuage
Official citation:
Appellate results:
See also (multicaptioned case)


This is a claim for money damages by Solomon Billups (Claimant), who is

proceeding pro se, against the State of New York (Defendant or State) asserting causes of

action for assault, excessive force, wrongful confinement and several constitutional

violations alleged to have occurred while Claimant was incarcerated at the Sing Sing

Correctional Facility. Defendant moved to dismiss the claim pursuant to CPLR 3211 (a)

(7) for failure to state a claim (Motion No. M-96153), which was granted in part and

denied in part by decision and order of this Court dated February 8, 2021. More

specifically, the assault, excessive force and constitutional claims were dismissed, but the

wrongful confinement claim was not. The decision and order gave notice that the

wrongful confinement claim was converted to a summary judgment motion and set forth a

schedule for submission of papers. Defendant then made a motion for summary judgment

pursuant to CPLR 3212 by notice dated April 1, 2021.

A detailed statement of facts is contained in this Court's February 8, 2021 decision

and order. Accordingly, only portions of the facts relevant to the wrongful confinement

claim are repeated here.

On February 13, 2019, a misbehavior report was issued which charged Claimant

with the following rule violations: 104.11 Violent Conduct, 107.10 Interference with

Employee, 107.11 Harassment, and 106.10 Refusing a Direct Order. Claimant was

confined in keep lock pursuant to the misbehavior report from February 13, 2019 until

March 20, 2019. A Tier III disciplinary hearing commenced on February 19, 2019 and

was concluded on March 19, 2019. The hearing officer found Claimant not guilty of

most of the charges, i.e., violent conduct, harassment, and interference with an employee

but guilty of the one charge of refusing a direct order. The penalty assessed was 35 days

keep lock confinement and loss of other privileges.

Claimant appealed the hearing officer's determination on April 19, 2019. Eleven

months later, on March 19, 2020 the disciplinary hearing finding was reversed and

Claimant's record was expunged of all references to the guilty finding due to an

incomplete hearing record where "a significant portion of the testimony [was] missing"

(Defendant's Exh C) but not on the merits.

The claim states that Claimant asserts that during the hearing "numerous

objections" and "violations of regulations" were "disregarded by the hearing officer." The

claim also alleges that the hearing officer was biased, the underlying misbehavior report

was fabricated, and Claimant's right to present two pieces of documentary evidence i.e.,

Department of Corrections and Community Supervision (DOCCS) Directives No. 4004

and 4091, was denied in contravention of 7 NYCRR 254.6. Claimant also alleges that

extensions of time for completion of the hearing were invalid and in violation of 7

NYCRR 251-5.1 (b) because they were untimely made.

Summary judgment is a drastic remedy and may only be granted in the absence of

any material issues of fact (Alvarez v Prospect Hosp, 68 NY2d 320 [1986]; Vega v

Restani Const. Corp., 18 NY3d 499 [2012]). "The proponent of a summary judgment

motion must make a prima facie showing of entitlement to judgment as a matter of law,

tendering sufficient evidence to eliminate any material issues of fact from the case"

(Winegrad v New York Univ Med Center, 64 NY2d 851 [1985]). "Failure to make such

prima facie showing requires a denial of the motion, regardless of the sufficiency of the

opposing papers" (Alvarez v Prospect Hosp, 68 NY2d 320 [1986]). The evidence

submitted in support of a motion for summary judgment must be viewed in the light most

favorable to the non-moving party, giving that party the benefit of any favorable inference

(Open Door Foods, LLC v Pasta Machines, Inc, 136 AD3d 1002 [2d Dept 2016]). Once

such proof has been offered, the burden then shifts to the opposing party, who, in order to

defeat the motion for summary judgment, must proffer evidence in admissible form...and

must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212 [b];

Zuckerman v City of New York, 49 NY2d 557 [1980]).

In order to establish that he was wrongfully confined, Claimant must prove 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]; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).

With respect to the fourth element, whether a confinement is privileged, "the State

is accorded absolute immunity for the actions of its employees involved in the

investigation and prosecution of disciplinary charges brought against persons in a

correctional facility and for the actions of the hearing officer charged with presiding over

and reviewing such matters. This immunity covers discretionary conduct due to its

quasi-judicial nature, even if that discretion was erroneously exercised or the findings

were subsequently overturned" (Haddock v State of New York, UID No. 2018-054-015

[Ct Cl, Rivera, J., March 7, 2018], citing Arteaga v State of New York, 72 NY2d 212

[1988]; Loret v State of New York, 106 AD3d 1159 [3d Dept 2013]; Holloway v State of

New York, 285 AD2d 765 [3d Dept 2001]). Absolute immunity may be lost, however, if

the State acted in contravention of a governing rule or regulation which caused the

incarcerated person to suffer actual prejudice or a deprivation of his due process rights

(Davidson v State of New York, 66 AD3d 1089 [3d Dept 2009]; Arteaga v State of New

York, 72 NY2d 212 [1998]).

Defendant's summary judgment motion argues that the State is entitled to

judgment as a matter of law because Claimant has not demonstrated that it acted in

contravention of a rule or regulation and, even assuming for the sake of argument that it

had committed any such violation, Claimant suffered no actual prejudice or deprivation of

due process. In opposition, Claimant essentially reasserts the allegations in his claim and

contends that his due process rights were violated, but does not specify any actual

prejudice suffered by him.

With regard to the claim of hearing officer bias, the State asserts that there are no

material factual allegations specifying the flaws in the hearing proceeding or the manner

in which the hearing officer demonstrated bias. "There must be a factual demonstration

to support the allegation of bias and proof that the outcome flowed from it" in order for

Claimant to succeed on a claim for bias (Warder v Bd of Regents of the Univ of State of

NY, 53 NY2d 186 [1981]). Claimant has not proffered specific allegations or evidence

requiring a trial concerning the hearing officer's bias.

The allegation that the misbehavior report was fabricated was a credibility issue

resolved by the hearing officer and which appears to have led her to dismiss certain of the

charges and uphold one (Aff. in Support, Exh C). The hearing officer's written

determination indicates that she relied upon not just the misbehavior report, but, also, the

testimony of another correction officer that she observed Claimant leave the room where

he was being questioned. Moreover, Claimant admitted in the claim that he refused a

direct order to sit down and left the disciplinary area, which directly supports the hearing

officer's finding (Claim, Exh A 3, 4). Claimant has presented no triable issue of fact

on this issue.

Next, Claimant asserts that he was denied his request for Department of

Corrections and Community Supervision (DOCCS) directives 4004 and 4091 in violation

of 7 NYCRR 254.6. More specifically, 254.6 (a) (3) provides that "the [incarcerated

person] may reply orally to the charge and/or evidence and shall be allowed to submit

relevant documentary evidence . . . ." The directives at issue contain the DOCCS

procedures for preparing incident reports and for log book entries, respectively. In light

of the evidence upon which the hearing officer relied noted above and the finding of "not

guilty" on most of the charges listed in the misbehavior report, these documents were not

relevant to the hearing officer's determination. Thus, as a matter of law, there was no

violation of 7 NYCRR 254.6 supporting a claim for wrongful confinement.

7 NYCRR 251-5.1 (a) requires disciplinary hearings to be commenced no later

than seven days after an inmate's initial confinement. Furthermore, 7 NYCRR 251-5.1

(b) requires that a disciplinary hearing "must be completed within 14 days following the

writing of the misbehavior report unless otherwise authorized by the commissioner or

designee." It is undisputed that Claimant's Tier III hearing was commenced within the

requisite seven days but was not completed until March 19, 2019 pursuant to several

extensions of the fourteen-day completion regulation. The claim asserts that these

extensions were invalid because they were untimely authorized. The State does not

dispute that at least one of the extension requests was made one day after the previous

extension had expired. Specifically, an extension request was sought on March 9, 2019

despite that the previous extension required that the hearing be completed by March 8,


"[T]he regulation concerning concluding the hearing within 14 days is 'directory

only' in the absence of 'substantive prejudice' to a claimant" (Thomas v State of New

York, UID No. 2019-028-560 [Ct Cl, Sise, J., June 25, 2019], quoting Matter of Comfort v

Irvin, 197 AD2d 907, 908 [4th Dept 1993], lv denied 82 NY2d 662 [1993]; Matter of

Hairston v Goord, 299 AD2d 359 [2d Dept 2002]). On this motion, Claimant has failed

to establish how he was prejudiced by the delay or the one-day gap, especially since his

appeal was not decided on the merits. There is no indication that the outcome of the

hearing would have been different had it concluded earlier (see e.g., Moustakos v State,

133 AD3d 1268 [4th Dept 2015]).

Since Claimant's motion papers present no triable issue of fact evincing

substantive prejudice, summary judgment should be granted to Defendant.

Accordingly, it is:

ORDERED that, Defendant's Motion Nos. M-96153 and M-96644 are GRANTED; and it

is further

ORDERED that Claim No.134770 is dismissed.

September 10, 2021

Hauppuage, New York


Judge of the Court of Claims