Petitioner MarcMontemarano filed this Article 78 proceeding to review prison discipline imposed against him as a result of an incident between Montemarano and another inmate at Eric M. Taylor Center (EMTC) on Rikers Island occurring on December 19, 2009. Petitioner demands that the Court set aside the Correction Department's December 30, 2009 determination finding him guilty of violating Inmate Rule 101.17 (assault without injury). Petitioner was sentenced to twenty days punitive segregation, ten days loss of good time, and a $25 surcharge.

The inmates' rules of conduct in issue here are contained at Chapter 1, Title 39 of the Rule and Regulation of the City of New York(see, NYCRR §1-03[e][2]). Specifically, Rule 101.17 provides that "(a)n inmate is guilty of Grade II fighting when he or she engages in a physical struggle with another inmate that does not result in injury."

Generally, sanctions imposed in prison discipline proceedings, such as those for violation of Inmate Rule 101.17, can include loss of good time credits, loss of other special privileges, and placement [*2]in special housing unit.^[FN1] Such penalties were imposed in this case. However, after serving twenty days punitive segregation, Petitioner was released from incarceration on a date that was subsequent to filing this petition. Consequently, this action will have no effect upon Petitioner's liberty but instead has become a refund action for the $25 surcharge. According to Petitioner, his record becomes relevant only in the event Petitioner is reincarcerated (see generally, Matter of Foster v. Bezio, 62 AD3d 1222 [3rd Dept. 2009]).

Procedural Background

Initially, Petitioner filed a pro se "Notice of Motion for Review of Good Time & Merit Time Pursuant to Correction Law §803" seeking to correct the adverse ruling after his appeal to the Warden was denied. Petitioner subsequently obtained counsel who amended the original action to change it to an Article 78 proceeding to annul the Correction Department's determination. The issues raised in the amended petition center upon the defense that Petitioner did not employ force and that the penalties asserted against him violated due process because Petitioner was entitled to self defense (Exhibit D).

Review of the administrative record stipulated by the parties (see, CPLR §7804[e]) shows that the evidence before Captain Caputo of the Adjudication Unit included reports by Correction Officer O'Bryant, Correction Officer Smith, and Captain Richard, as well as Petitioner's and the other inmate's statements and injury reports (see, Exhibits A, B-1 to B-9). The hearing officer declined to dismiss the charges at the hearing and issued a Hearing Report and Notice of Disciplinary Disposition imposing, inter alia., the penalty and surcharge in issue (Exhibit C).

Petitioner's Position

Petitioner says he did not strike the other inmate and the incident involved a dispute over whether a dorm window should be opened. Instead of fighting Petitioner attempted to move away from the incident. He says medical records show he was the injured party, not the other inmate. Additionally, Montemarano denies telling investigating officers that he bumped the other inmate. Regardless, he says the act of "bumping" does not constitute "fighting" and cannot be a violation of Inmate Rule 101.17. Montemarano's actions were reflexive and not deliberate.

Further, Petitioner says the penalty was excessive and inappropriate, especially since it was Petitioner's first infraction in prison and there was no culpability involved. Petitioner says that if any force was used, he had the right to defend himself and, therefore, his conduct is not actionable (see generally, People v. McManus, 67 NY2d 541 [1986]).

Corrections' Response

In their answer, Respondents deny Petitioner's allegations and seeks dismissal of the action. As an affirmative defense, Corrections argues Petitioner failed to state a due process cause of action. Rather, the administrative proceeding was proper, reasonable, and conformed with law and regulations. The hearing officer's determination that Petitioner violated Rule 101.17 was neither arbitrary nor capricious. The fact that evidence consists of the testimony of a correction officer who witnessed the incident is sufficient to support the finding of guilty (see generally, Matter of McNear v. Selsky, 25 AD3d 1043 [3rd Dept. 2006]) (see also, Ravalli v. Sullivan, 296 AD2d 738 [3rd Dept. 2002]).

Legal Discussion

The only issue remaining for decision is whether the New York City Corrections Department was justified in imposing a $25 disciplinary surcharge for violating Inmate Rule 101.17, a Grade II [*3]offense (see generally, Rudolph v. Cuomo, 916 F. Supp. 1308 [SD NY 1996]).

When reviewing inmate discipline cases, a court is required to afford deference to decisions of the prison authorities as to what discipline is necessary and proper to serve the prison's important institutional interests (see generally, People v. Vasquez, 89 NY2d 521 [1997]). In the amended petition, Petitioner narrows his complaint to denial of due process saying that his punishment offends a basic principle of culpability, i.e., his entitlement to use physical force to defend himself. His conduct, which would otherwise constitute an offense, Petitioner argues, is simply not criminal (see, Penal Law §15.00 and §35.15) (see also, People v. McManus, 67 NY2d 541, 545 [1986]).

Petitioner's due process claim is rejected. The Court finds no basis for finding that a due process abuse occurred even if Respondents punished conduct which, under noncustodial conditions, is neither illegal nor a crime. In his petition, Petitioner claims his actions were in self-defense.

A self defense claim presents a credibility issue to be resolved by the Hearing Officer (see generally, Matter of Stone v. Fischer, 62 AD3d 1064 [3rd Dept. 2009]). However, Petitioner did not raise the self defense issue at the administrative hearing level and, in fact, claimed the opposite, i.e., he denied he struck the other inmate and could not remember "bumbing" him (Tr. 11).^[FN2] Further, even if Petitioner raised self defense, the hearing officer's decision adequately evaluated Petitioner's credibility in his decision. The Court finds no basis for Petitioner's claim that the Hearing Officer violated due process. The penalty for the incident was neither excessive nor inappropriate, regardless of the fact it was Petitioner's first infraction in prison. The administrative proceeding was proper, reasonable, and conformed to law.

Claim is de minimis

The ancient maxim de minimis non curat lex, that is, "the law does not concern itself with trifles," provide an appropriate basis to resolve this case (see generally, Brown v. Kuhlmann, 142 F.3d 529 2nd Cir. 2002]).^[FN3]

While New York courts have not previously applied de minimis non curat lex to correctional penalty cases,^[FN4] it is hard to conceive that an insignificant amount such as is involved here deserves further consideration. The maxim was recently illustrated in Watson-El v. Wilson, 2010 US Dist. Lexis 97481 [ED Il. 2010] where the trial court, among other grounds, rejected an inmate claim for refund of a trivial amount imposed as a penalty by prison authorities. In Watson-El, a prisoner filed a grievance challenging the Board of Prisons' placing a hold upon his trust account. The amount of the hold was $75. The Court rejected the prisoner's relief as unreasonable, stating: [*4]

The entire dispute boils down to the plaintiff's dissatisfaction with a warden's discretionary decision to place an encumbrance on a $75.00 deposit correctional officials viewed as suspect. There is an ancient maxim, de minimis non curat lex, "the law cares not for trifles."

(Id.). The Watson-El court characterized the prisoner's claim as a "minor" concern of no avail when it granted summary judgment in favor of the correctional authorities and dismissed the case (Id.).

Similarly, Petitioner here no longer retains a liberty interest and the only dispute involves refund of an exceptionally small $25 surcharge imposed as part of the punishment for a violation. The dispute has become trivial and does not deserve the Court's further attention (see generally, Combs v. Wyckoff, Cole. & Cai. Cas. 202 [N Y Sup. Ct. of Judicature 1803]). Not to apply the doctrine here would do it violence. Therefore, the Court, upon its own motion, dismisses the instant petition.^[FN5]

WHEREFORE, based upon the foregoing, it is

ORDERED that the branch of the petition, seeking to set aside Respondents' determination that found Petitioner guilty of violating Inmate Rule 101.17 (assault without injury) upon the grounds that there was a denial of Petitioner's due process rights, is DENIED, and it is

ORDERED that the branch of the petition, seeking to set aside the Respondents' determination upon the grounds that the determination is not supported by substantial evidence is DENIED as moot, and it is further

ORDERED that, upon the Court's own motion, the Petition is dismissed as moot in that the remaining dispute is trivial and de minimis.

The foregoing constitutes the decision and order of the Court.

Dated: Bronx, New York

May 27, 2011

HON. DOMINIC R. MASSARO

SUPREME COURT JUSTICE