        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

704
CA 15-00301
PRESENT: CENTRA, J.P., LINDLEY, CURRAN, TROUTMAN, AND SCUDDER, JJ.


ANTHONY BOTTOM, CLAIMANT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 121214.)


ANTHONY BOTTOM, CLAIMANT-APPELLANT PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (LAURA ETLINGER OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Court of Claims (Michael E. Hudson,
J.), entered January 2, 2015. The judgment denied and dismissed the
claim against defendant.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Claimant, a pro se prison inmate, appeals from a
judgment denying and dismissing his claim seeking damages for anxiety
and mental distress that he allegedly suffered while confined in the
Special Housing Unit (SHU) of Attica Correctional Facility. On
January 5, 2012, correction officers frisked claimant’s cell,
confiscated alleged contraband consisting of 14 photographs contained
within claimant’s photo album, and completed an inmate misbehavior
report charging claimant with violating inmate rule 105.14 (7 NYCRR
270.2 [B] [6] [v] [unauthorized organization]). The photographs
purportedly depict family members and friends of claimant at a
memorial service for a deceased former member of the Black Panther
Party. At the prison disciplinary hearing, claimant sought to call
three employees of the Department of Corrections and Community
Supervision as witnesses in his defense. Claimant explained that he
expected those witnesses to testify that, when the photographs arrived
at the correctional facility, they personally reviewed them, and that
claimant was “allowed to have them.” The Hearing Officer denied all
three witnesses and considered as evidence only the inmate misbehavior
report, the photographs themselves, and the testimony of a correction
officer that the photographs depict an unauthorized organization.
Claimant was thereafter found guilty of violating inmate rule 105.14
and sentenced to six months in the SHU. Claimant filed an
administrative appeal contending, among other things, that the Hearing
Officer’s determination was not based on substantial evidence and that
claimant was denied his due process right to call witnesses (see 7
                                 -2-                           704
                                                         CA 15-00301

NYCRR 254.5 [a]). The determination was summarily reversed, and
claimant was returned to the general inmate population after 66 days
of being confined in the SHU. Claimant thereafter commenced this
action alleging that defendant had unlawfully confined him.

     We agree with claimant that, under the circumstances of this
case, the Court of Claims erred in concluding that defendant is
afforded absolute immunity for the disciplinary determination of its
Hearing Officer. “It is well settled that, where, as here, the
actions of correction personnel have violated the due process
safeguards contained in 7 NYCRR parts 252 through 254, those actions
‘[will] not receive immunity’ ” (Moustakos v State of New York, 133
AD3d 1268, 1269, quoting Arteaga v State of New York, 72 NY2d 212,
221). Those due process safeguards include the right to call
witnesses at a disciplinary hearing unless the witnesses’ testimony is
immaterial or redundant, or puts institutional safety or correctional
goals in jeopardy (see 7 NYCRR 254.5 [a]; Matter of Texeira v Fischer,
26 NY3d 230, 233-234, citing Wolff v McDonnell, 418 US 539, 556-558).
In ruling that the proffered testimony of claimant’s witnesses was
irrelevant, the Hearing Officer improperly limited the scope of the
evidence and, as a result, failed to consider whether the alleged
contraband “advocates either expressly or by clear implication,
violence based upon race, religion, sex, sexual orientation, creed,
law enforcement status or violence or acts of disobedience against
department employees or that could facilitate organizational activity
within the institution” (7 NYCRR 270.2 [B] [6] [v]; see generally
Perez v Annucci, 126 AD3d 1387, 1388; Matter of Kimbrough v Fischer,
96 AD3d 1251, 1252). Thus, we conclude that the proffered testimony
was material and relevant because it tended to support claimant’s
defense to the violation charged (see generally People v Scarola, 71
NY2d 769, 777). Moreover, the testimony should have been permitted as
evidence of mitigating circumstances relevant to the appropriate
penalty (see Matter of Coleman v Coombe, 65 NY2d 777, 780; Matter of
Wilson v Coughlin, 186 AD2d 1090, 1090-1091).

     We nonetheless agree with defendant that claimant failed to prove
a prima facie case of unlawful confinement inasmuch as he failed to
present evidence that the testimony of his witnesses “ ‘would have
. . . changed the outcome of the hearing’ ” (Moustakos, 133 AD3d at
1270; see Watson v State of New York, 125 AD3d 1064, 1065). Finally,
to the extent that claimant bases his claim on alleged violations of
the First Amendment, the claim was properly dismissed inasmuch as the
Court of Claims lacks jurisdiction to adjudicate federal
constitutional torts (see Lakram v State of New York, 206 AD2d 568,
568; DuBois v State of New York, 25 Misc 3d 1137, 1138).




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
