Pro se inmate's wrongful confinement claim was dismissed after trial on the ground he failed to demonstrate that without a violation of the rule pertaining to an inmate's right to call witnesses, he would have prevailed at the hearing. Thus, proximate cause was lacking.
|Claimant short name:||ADAMS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Marquis Adams, Pro Se|
|Defendant's attorney:||Honorable Barbara D. Underwood, Acting Attorney
By: Christina M. Calabrese, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 16, 2018|
|See also (multicaptioned case)|
In his claim, the claimant alleges that certain correction officers wrongfully seized and destroyed "the last photo of my three brothers, before all three were killed in an auto accident". The claim further alleges that a hearing officer deprived the claimant of his constitutional right to due process when he refused to permit him to call a witness on his own behalf.
Exhibit A received in evidence at trial contains various documents relevant to the claim. An inmate misbehavior report dated April 10, 2013 relates that a correction officer discovered three photographs of individuals "flashing gang signs" during claimant's orientation process at Great Meadow Correctional Facility (Great Meadow) (Exhibit A, p. 1). The officer seized the three photographs and issued claimant a misbehavior report. Claimant's disciplinary hearing began on April 16, 2013. On April 18, 2013, claimant's request that the facility gang intelligence officer be produced to testify at his hearing was denied on the basis that the correction officer who issued the misbehavior report, Correction Officer Sawyer, "clearly identified the signs as being gang related. Further testimony would be redundant" (Exhibit A, p. 4). Claimant was found guilty of the charge of possessing gang-related items and was assessed various penalties including a period of keeplock and the loss of package, commissary and phone privileges.
In his statement of evidence relied upon, the hearing officer noted that although claimant alleged the three photographs had been previously approved following a media review process at one of his former facilities, he failed to identify the facility which had approved the photographs and could not produce a form to demonstrate that the photos had been previously authorized. Although the statement indicates that the claimant failed to identify the facility he claims previously approved the photographs, a separate form contained within Exhibit A at Page 10 indicates that the claimant requested that his assistant, Sergeant Woodruff, contact the media review personnel from Lakeview Correctional Facility. The hearing officer's statement indicates that at claimant's request "the Hearing Officer checked his files at the facility but no evidence could be found" (Exhibit A, Claim, p. 6). Following an appeal, the hearing officer's determination was reversed and records in relation thereto were expunged on the basis that "[t]he circumstances surrounding the incident raise questions as to the inmate's culpability for the charge" (Exhibit A, p. 7).
At trial the claimant testified that in June, 2013 he was issued a misbehavior report for possession of unauthorized gang materials.(1) The alleged gang material consisted of three photographs which the claimant states had been previously redacted in that portions were blurred. Claimant argued at his hearing that the photographs could not constitute gang-related materials because they were redacted. He also requested a copy of the Department of Corrections and Community Supervision (DOCCS) directive regarding media review procedures by which department personnel edit or redact photos, magazines and other materials prior to their receipt by inmates. Claimant contends that his request for the media review directive was denied by the hearing officer.
On cross-examination the claimant testified that he possessed the photographs, which had been approved at his previous facility, upon his arrival at Great Meadow. The photographs were discovered during his processing into Great Meadow and were seized as contraband, resulting in the issuance of a misbehavior report. Claimant testified that at the time the photographs were seized in June, 2013, he had resided at ten or more previous correctional facilities.(2) As a result, he was aware that each facility has its own media-review standards. He stated, however, that the applicable DOCCS directive permits facilities to redact photographs, and allows inmates to retain them in their redacted form. Claimant testified that the subject photographs included one depicting two males and another depicting three males. He denied that the individuals shown in the photographs were displaying gang signs and stated that in one of the photos a firearm being held by his brother was redacted at a prior facility. Claimant further testified that his request to review the photographs during his hearing was denied. Claimant also testified that Correction Officer Sawyer, the individual who issued the misbehavior report, did not testify at his hearing. This despite the fact that the statement of evidence relied upon indicates the hearing officer considered the testimony of Correction Officer Sawyer, the three photographs and the testimony of the claimant.
The defendant called Jeffrey Lindstrand. Mr. Lindstrand is a retired deputy superintendent at Great Meadow Correctional Facility. He was employed by DOCCS for 26 years and served as a hearing officer for 15 years. Mr. Lindstrand was the hearing officer at the claimant's disciplinary hearing which began on April 16, 2013.
The witness testified that Correction Officer Sawyer had been employed as a correction officer for 30 years and was Great Meadow's orientation officer, trained in recognizing gang-related activity and materials. In his view, Correction Officer Sawyer, who he confirmed was called as a witness at the hearing, was an expert on the issue of gang signs. Officer Sawyer reviewed the photographs at the hearing and believed them to contain depictions of individuals displaying gang signs. With regard to claimant's request that a specific gang intelligence officer appear at his hearing, the witness testified that Correction Officer Sawyer had already testified to the fact that the photographs depicted individuals displaying gang signs and that any further testimony with regard to the issue would have been duplicative.
On cross-examination Mr. Lindstrand agreed that Correction Officer Sawyer is not a certified gang intelligence officer. With regard to claimant's request to view the photos at the hearing, the witness testified that the claimant had already possessed the photos and that he did not see the need to retrieve the photographs from the evidence locker if the claimant had already viewed the photos.
By Decision and Order dated September 20, 2017, the Court denied defendant's motion for summary judgment to the extent it sought dismissal of the claimant's wrongful confinement cause of action but granted the motion to the extent it sought dismissal of the claimant's bailment cause of action. With respect to the wrongful confinement claim, 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 physically abusing inmates (see, Correction Law § 137 ) or in confining them without granting a hearing or other required due process safeguard (see, 7 NYCRR 251-5.1; parts 252-254)" (Arteaga v State of New York, 72 NY2d 212, 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]). In deciding the defendant's prior motion for summary judgment, the Court expressed its view that the improvident denial of an inmate's request for witness testimony on one of the grounds set forth in 7 NYCRR 254.5 (a) should not be interpreted as a violation of ministerial regulation but, rather, as an abuse of discretion entitled to absolute immunity in an action for money damages in the Court of Claims (see Holloway v State of New York, 285 AD2d 765 [3d Dept 2001]; see also Loret v State of New York, 106 AD3d 1159 [3d Dept 2013]; Pryor v State of New York, 92 AD3d 1047 [3d Dept 2012]). Nevertheless, constrained by the decision of the Appellate Division, Fourth Department, in Bottom v State of New York (142 AD3d 1314 [4th Dept 2016], appeal dismissed 28 NY3d 1177 ), the Court denied defendant's motion to the extent it sought dismissal of the wrongful confinement cause of action. The Court in Bottom 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 denial of the inmate's request constituted a violation of 7 NYCRR 254.5(a),which is one of the due process safeguards contained within 7 NYCRR part 254. There being no countervailing precedent directly contradicting this holding, the Court applied the rule espoused in the Bottom case and denied defendant's motion for summary judgment.
Turning to the trial of this action, claimant failed to establish that a violation of one of the governing due process regulations proximately caused his allegedly wrongful confinement. To establish a claim of false imprisonment, claimant must " 'show 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 , quoting Broughton v State of New York, 37 NY2d 451, 456 , cert denied sub nom. Schanbarger v Kellogg, 423 US 929 ). While claimant met his burden of proof with respect to the first three elements, he failed to establish that the confinement was not otherwise privileged. As made clear by the Court in Moustakos v State of New York (133 AD3d 1268 [4th Dept 2015]), a confinement is privileged unless it is established that without the due process violation, the outcome of the hearing would have been different. Here, no evidence was presented to demonstrate that the outcome would have been different had claimant been permitted to call the facility gang intelligence officer. Accordingly, claimant failed to establish his claim for wrongful confinement as a matter of law.
Based on the foregoing, the claim is dismissed.
Let judgment be entered accordingly.
May 16, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. The misbehavior report was issued on April 10, 2013.
2. It appears claimant was mistaken with respect to the date photographs were seized inasmuch as the misbehavior report was issued in April 2013.