Defendant's motion to dismiss the claim for failure to state a cause of action granted. The allegedly wrongful pre-hearing confinement was authorized under DOCCS regulations and did not constitute ministerial negligence, and the remedy of state constitutional tort was not available because claimant had other avenues to vindicate the alleged constitutional violations.
|Claimant short name:||WELLS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||CARL WELLS, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Elizabeth A. Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 9, 2021|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim alleging that he was wrongfully confined on October 2, 2020 at Green Haven Correctional Facility (CF). Defendant now moves to dismiss the claim for failure to state a cause of action. Claimant opposes the motion, which will be granted for the reasons that follow.(1)
The claim alleges that on October 2, 2020, claimant was in the mess hall at Green Haven CF when he saw Correction Officer (CO) Kwartler and another CO "speaking as they were looking at [him]" (Claim No. 135521, ¶ 4), that as claimant was getting up from the table, CO Kwartler "pop[ped] up behind" him and, using an obscenity, screamed at him to move, and that claimant responded " 'get off my back, put on a mask' " (Claim No. 135521, ¶¶ 4-5 [emphasis in original]). The claim alleges that claimant then returned to his cell block and stopped to speak with another incarcerated person when CO Kwartler, who was passing claimant on the stairs, stopped and ordered claimant to go upstairs and again used an obscenity (id. at ¶ 6). The claim alleges that claimant responded " 'ok, you first,' " and that once CO Kwartler had gone up the stairs, claimant also went upstairs (id.). The claim alleges that when claimant reached the top of the stairs, CO Kwartler "point[ed] [claimant] down the gallery," and that claimant said " 'get off my back, leave me alone' " (id. at ¶ 7). The claim alleges that at 4:00 p.m. that day, CO Kwartler told claimant during rounds "your [sic] keeplocked, no showers, phones" (id. at ¶ 8). The claim alleges that "claimant decided to apologize for speaking to [CO Kwartler] the way [he] did" but that he told CO Kwartler that he did so because CO Kwartler was not wearing a mask, and he used an obscenity toward CO Kwartler and said " 'I wrote you up' " (id. at ¶ 9).
The claim alleges that during morning rounds the next day, claimant was informed that he was not keeplocked, and that later that day he was given copies of a misbehavior report and a "Violation Hearing Disposition Rendered" (see id. at ¶¶ 10-11, Exhibits A-B). CO Kwartler wrote in the misbehavior report that on October 2, 2020, he was escorting the residents of the H block back from the mess hall, and as he went up the stairs to the "second deck," he saw claimant speaking with another incarcerated person, and he directed claimant to "return to his cell" (id., Exhibit A [Misbehavior Report, § 4]). CO Kwartler wrote that claimant "ignored [his] direction and responded 'I need to get something over here,' " that he "gave [claimant] further direction to return to his cell," and that claimant complied (id.). CO Kwartler stated that he then escorted claimant back to his cell (see id.). The misbehavior report charged claimant with violating rules 106.10 (refusing a direct order), 107.10 (interference with employee), 109.10 (out of place), and 109.12 (movement violation) (see id. at § 3). The matter was reviewed by Lieutenant Vancooten on October 3, 2020, who imposed 13 days of loss of packages, commissary, and recreation as a penalty (see Claim No. 135521, Exhibit B [Violation Hearing Disposition Rendered]). The claim alleges that claimant "did not attend a hearing" and that his signature on the misbehavior report was forged (id. at ¶ 12). The claim alleges causes of action sounding in ministerial negligence, false imprisonment, and state constitutional tort (see id. at ¶ 14).
Defendant now makes this pre-answer motion to dismiss the claim for failure to state a cause of action, arguing that the single day of "prehearing confinement was authorized and privileged" inasmuch as keeplock confinement is authorized by regulation "whenever a correction officer believes that an inmate has violated a facility rule" (Gavin Affirmation, ¶ 6). Defendant further argues that the claim fails to state a cause of action for ministerial negligence because the claim "does not make any allegation that [claimant] was keeplocked beyond the date of his disciplinary hearing" (id. at ¶ 7). Finally, defendant argues that the Court lacks subject matter jurisdiction over the state constitutional tort cause of action because there are other remedies available to claimant to vindicate those rights, including an action in federal court under 42 U.S.C. § 1983 (see id. at ¶ 8).
In his unsworn submission in response to the motion, claimant argues that defendant "cannot win this case" because defendant's agents and employees lied about the events of October 2 and 3, 2020 (Wells Correspondence, unnumbered pg. 1). Specifically, claimant argues that his name was forged on the misbehavior report and no hearing took place, and the documents that were subsequently delivered to him in his cell, including the misbehavior report and disciplinary disposition, were "invalid on their face" (id.).(2)
On a motion to dismiss for failure to state a cause of action:
"claimant's claim is liberally construed and all facts asserted therein, as well as its submissions in opposition to defendant's motion, are accepted as true (see CPLR 3026; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 ; see also Nonnon v City of New York, 9 NY3d 825, 827 ; State of New York v Shaw Contract Flooring Servs., Inc., 49 AD3d 1078, 1079 )."
(IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [3d Dept 2008], lv denied 11 NY3d 706 ). On such a motion, a court's role is to "determine only whether the facts alleged fit within any cognizable theory," provided that "a court may consider affidavits submitted by the [claimant] to remedy any defects in the [claim] . . . and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Leon v Martinez, 84 NY2d 83, 87-88  [internal citations and quotation marks omitted]; see also IMS Engrs.-Architects, P.C., 51 AD3d at 1356 ["the dispositive inquiry (in a motion to dismiss pursuant to CPLR 3211 [a] ) is whether (the claim) has a cause of action and not whether one has been stated, i.e., "whether the facts as alleged fit within any cognizable legal theory"]).
It is well settled that in order to plead a cause of action for unlawful confinement, a claim must allege that defendant intentionally confined claimant, that claimant was aware of and did not consent to the confinement, and that the confinement was not privileged (see Martinez v City of Schenectady, 97 NY2d 78, 85 ; Broughton v State of New York, 37 NY2d 451, 456-457 , cert denied sub nom Schanbarger v Kellogg, 423 US 929 ; see also Nazario v State of New York, 75 AD3d 715, 718 [3d Dept 2010], lv denied 15 NY3d 712 ). The confinement of an inmate is privileged if it was accomplished in accordance with DOCCS regulations (see Lee v State of New York, 124 AD2d 305, 307 [3d Dept 1986]; Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]), or where there has not been a violation of an inmate's right to due process (see Arteaga v State of New York, 72 NY2d 212, 221 ).
In the context of the prison disciplinary process, the doctrine of absolute immunity provides that where defendant's "employees act under the authority of and in full compliance with the governing statutes and regulations (Corrections Law §§ 112, 137; 7 NYCRR parts 250-254), their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity" (Arteaga, 72 NY2d at 214). Thus, "unless the [correctional] employees exceed the scope of their authority or violate the governing statutes and regulations [relating to prison disciplinary process], the State has absolute immunity for those actions" (Holloway v State of New York, 285 AD2d 765, 765 [3d Dept 2001]). Not all violations of Department of Corrections and Community Supervision (DOCCS) rules governing the disciplinary process will result in the abrogation of the State's absolute immunity, only those that violate an inmate's right to due process (see Arteaga, 72 NY2d at 221).
Pursuant to DOCCS regulations, "[w]here an officer has reasonable grounds to believe that an [incarcerated person] should be confined to his cell or room or housing area because he represents an immediate threat to the safety, security or order of the facility or [an] immediate danger to other persons or to property, such officer shall take reasonable and appropriate steps to so confine the [incarcerated person]" (7 NYCRR 251-1.6 [a]). That regulation has been broadly "interpreted as authorizing keeplock whenever an officer reasonably believes that a facility rule has been violated by an [incarcerated person], thus establishing an immediate threat to the order of the facility" (Matter of Pettus v West, 28 AD3d 907, 908 [3d Dept 2006] [internal quotation marks omitted]; see Matter of Ballard v Annucci, 156 AD3d 1013, 1015 [3d Dept 2017]). Here, the claim alleges that claimant was subjected to keeplock confinement for a period of less than 24 hours before the disciplinary determination imposing a 13-day period of loss of privileges, but no further period of confinement, was issued. Because the pre-hearing keeplock confinement was authorized under 7 NYCRR 251-1.6 (a), claimant has failed to state a cause of action sounding in wrongful confinement, and defendant's motion to dismiss will be granted with respect to that cause of action.(3)
Turning to the cause of action for ministerial negligence, it is well settled that claims alleging wrongful confinement generally sound in intentional tort (see Gittens, 132 Misc 2d at 407; see also Martinez, 97 NY2d at 85). However, in limited factual circumstances, such a claim may also sound in negligence (see Ramirez v State of New York, 171 Misc 2d 677, 682 [Ct Cl 1997]) where, for example, the claim alleges conduct that was "almost certainly unintentional," such as computation errors, or an erroneous misapplication of rules governing release (see id. at 683). Here, although the claim asserts a cause of action sounding in ministerial negligence, it alleges that claimant was wrongfully confined to his cell for a period of less than 24 hours before being served with a misbehavior report and a disciplinary determination imposing 13 days of loss of privileges, but it does not allege any conduct by CO Kwartler or any other of defendant's agents or employees at Green Haven CF in the nature of failing to release claimant from confinement for which the authorization had expired, in violation of DOCCS rules and regulations (see Ramirez, 171 Misc 2d at 683). Accordingly, the claim fails to state a cause of action for ministerial negligence.
Finally, with respect to the cause of action sounding in state constitutional tort for violation of claimant's rights to equal protection and to be free of cruel and unusual punishment, as defendant correctly argues, it is well settled that a state constitutional tort is a "narrow remedy" (Brown v State of New York, 89 NY2d 172, 192 ) that may be pursued only where it is "necessary to effectuate the purposes of the State constitutional protections [claimant] invokes" and "appropriate to ensure the full realization of [claimant's] rights" (Martinez, 97 NY2d at 83; see Brown, 89 NY2d at 186-188), and it is not available when another remedy is available to enforce the claimed constitutional right (see Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 678-679 [3d Dept 2003]). Here, claimant could have sought to vindicate the alleged constitutional violations through an action pursuant to 42 U.S.C. § 1983 in federal court, or through a timely proceeding in New York State Supreme Court pursuant to CPLR article 78 (see e.g. Matter of Davis v Goord, 21 AD3d 606 [3d Dept 2005] [petition alleging that incarcerated person's due process and equal protection rights were violated during disciplinary hearings]; Matter of Hayes v Goord, 284 AD2d 813, 814 [3d Dept 2001], lv denied 97 NY2d 603  ["Petitioner challenges that determination on the ground that his constitutional rights to due process and equal protection were violated"]; Matter of Saunders v La Bombard, 257 AD2d 840, 840 [3d Dept 1999] [petition challenging imposition of keeplock confinement as cruel and unusual punishment]). Therefore, defendant's motion to dismiss will be granted with respect to the state constitutional tort cause of action.
Accordingly, it is
ORDERED, that defendant's motion number M-96811 is GRANTED, and Claim No. 135521 is hereby DISMISSED.
August 9, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 135521, filed October 26, 2020;
2. Notice of Motion, dated December 11, 2020;
3. Affirmation of Elizabeth A. Gavin, AAG, in Support, dated December 11, 2020, with Exhibit 1;
4. Letter Reply of Carl Wells, dated December 17, 2020;
5. Correspondence of Kimberley Broad, Principal Law Clerk, dated July 21, 2021;
6. Correspondence of Kimberley Broad, Principal Law Clerk, dated July 28, 2021;
7. Second Amended Affirmation of Service of Elizabeth A. Gavin, AAG, dated July 28, 2021;
8. Correspondence of Carl Wells, dated August 1, 2021.
1. Claimant's response to defendant's motion to dismiss the claim is dated August 1, 2021, ten days after the July 21, 2021 return date of this motion, and it was not received by the Court until August 4, 2021, a full two weeks after the return date of the motion. Moreover, claimant's submission is unsworn and thus lacks evidentiary value. Nevertheless, in the interest of justice and ensuring that all parties are heard, the Court has considered claimant's submission. Claimant previously filed a "Letter Reply," dated December 17, 2020, to defendant's motion to dismiss, but it is likewise unsworn and, in any event, appears to be an attempt to engage in settlement negotiations with the State and does not address the substance of defendant's motion to dismiss (see Wells Letter Reply, dated Dec. 17, 2020).
2. Claimant also objects to the July 21, 2021 correspondence from chambers to AAG Gavin requesting that she provide an amended affirmation of service for the instant motion inasmuch as it originally affirmed that the motion was served on May 4, 2020, over five months before this claim was filed (see Broad Correspondence, dated July 21, 2021; see also Broad Correspondence, dated July 28, 2021). Claimant asserts that "the motion is void" and objects to the letter soliciting an amended affirmation (Wells Correspondence, unnumbered pg. 1 [emphasis in original]). However, AAG Gavin has provided a second amended affirmation of service, in which she affirms that the motion was served on claimant on December 11, 2020, the same day the motion was filed with the Court (see Gavin Second Amended Affirmation of Service, dated July 28, 2021; see also Claim No. 135521, filed Oct. 26, 2020), and claimant does not argue that he was never served with the motion and, in fact, has opposed it.
3. While claimant argues that there were procedural and substantive infirmities in the disciplinary process (i.e. his name was forged on the misbehavior report, he was not present at any violation hearing, and the misbehavior report and disciplinary disposition were facially invalid), those arguments have no bearing on whether defendant was authorized to confine claimant prior to the disciplinary hearing. Moreover, even if such arguments were pertinent to claimant's pre-hearing confinement, claimant's submission is unsworn and thus cannot remedy any defects in the claim. Lastly, claimant makes no argument that defendant lacked authority under 7 NYCRR 251-1.6 (a) to confine claimant.