Motion for late claim for wrongful confinement.
|Claimant short name:||ADAMS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE C. SCHAEWE|
|Claimant's attorney:||ANTHONY ADAMS, pro se|
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD, ATTORNEY
BY: Douglas H. Squire, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 28, 2018|
|See also (multicaptioned case)|
Movant, an inmate proceeding pro se, moves for permission to file and serve a late claim to recover for damages suffered as a result of his allegedly wrongful confinement for a period of 60 days in a Special Housing Unit (SHU) as a result of a disciplinary hearing conducted while he was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility (Elmira). Movant asserts that because he was denied a witness at his disciplinary hearing, his confinement was wrongful.(1) Defendant State of New York (defendant) opposes the motion. Movant replies.
A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act § 10 ). A cause of action for wrongful confinement, a "species" of the intentional tort of false imprisonment (Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 1986]), accrues on the date that the claimant is released from confinement (Campos v State of New York, 139 AD3d 1276 [3d Dept 2016]; Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]). Movant alleges that he was confined in keeplock from July 15, 2017 through September 12, 2017. The statute of limitations for wrongful confinement is one year (CPLR 215 ). Accordingly, this motion mailed on July 4, 2018 is timely (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2d Dept 2001]).
Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act § 10 (6) in determining a motion to permit a late filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;
5) the failure to file or serve upon the attorney general a timely claim or to
serve upon the attorney general a notice of intention resulted in substantial prejudice to defendant; and
6) movant has any other available remedy.
Movant states that he timely filed a notice of intention with the Clerk of the Court of Claims, and timely served the Attorney General's Office, albeit by regular mail. Movant also asserts that because his law library access was restricted, he did not realize that service upon the Attorney General was required to be made by certified mail, return receipt requested until April 2018. To the extent that movant may be asserting difficulty in proceeding with litigation due to his incarceration and lack of legal knowledge, these are not adequate excuses for his delay in timely serving a notice of intention or timely filing and serving a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 ; Plate v State of New York, 92 Misc 2d 1033 [Ct Cl 1978]). Accordingly, this factor weighs against him.
The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. Defendant argues that the State will be prejudiced in its investigation of the claim because movant has not identified the witness that he was not allowed to call at his disciplinary hearing. Defendant's contention is not persuasive. As set forth previously, defendant was served with a notice of intention on November 11, 2017 which provided some notice of the facts of the Proposed Claim. Further, movant indicates that the requested witness was an inmate member of the grievance panel which heard his grievance a few months prior to the Disciplinary Hearing.(2) With this information, defendant now has the ability to conduct an investigation. The Court finds that given the nature of this proposed claim, the State will not be substantially prejudiced in its defense. Thus, the three factors of notice, opportunity to investigate and the lack of substantial prejudice all weigh in favor of movant.
Another factor to be considered is whether movant has any other available remedy. Movant is seeking monetary damages for his allegedly wrongful confinement and as defendant appropriately concedes,(3) the Court of Claims is the proper forum for this action. This factor also weighs in favor of movant.
The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In order to establish a meritorious claim, a movant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, 154 Misc 2d 199, 202-203 [Ct Cl 1992]).
It is well-settled that defendant is entitled to absolute immunity from claims for monetary damages relating to disciplinary hearings so long as it complies with the rules and regulations that govern such hearings (Arteaga v State of New York, 72 NY2d 212 ). Notwithstanding the subsequent reversal of the underlying disciplinary charges, whether administratively or via a successful CPLR Article 78 proceeding, the immunity is retained as long as the disciplinary proceedings were conducted consistent with the procedures provided in the relevant DOCCS rules and regulations (id.; see Davis v State of New York, 262 AD2d 887 [3d Dept 1999], lv denied 93 NY2d 819 ). Immunity may be lost if defendant violated its own rules and regulations in conducting the hearing or otherwise acted outside the sphere of privileged actions and deprived the claimant of a due process safeguard (Arteaga, 72 NY2d at 220-221).(4)
However, the loss of immunity itself "does not result in absolute liability . . . because claimant is still required to prove the merits of his [or her] claim" (Turley v State of New York, UID No. 2010-032-504 [Ct Cl, Hard, J., June 4, 2010]). In other words,
[w]here, as here, a prison inmate contends that he was wrongfully confined as a result of the flawed prison disciplinary proceeding, once the absolute immunity is removed by showing that the governing rules and regulations were not followed, he [or she] may recover damages if he [or she] is able to prove the traditional elements of the tort of [unlawful confinement]: (1) that the confinement was intentional; (2) that [c]laimant was conscious of the confinement; (3) that [c]laimant did not consent to the confinement; and (4) that the confinement was not otherwise privileged (Moustakos v State of New York, 133 AD3d 1268, 1269 [4th Dept 2015] [internal quotation marks omitted]).
In order to establish that the confinement was not privileged, the claimant must show that had the violation not occurred, the outcome of the hearing would have been different (id. at 1270; see also Watson v State of New York, 125 AD3d 1064, 1065 [3d Dept 2015]; Adams v State of New York, UID No. 2017-015-259 [Ct Cl, Collins, J., Sept. 20, 2017]; Lewis v State of New York, UID No. 2007-028-560 [Ct Cl, Sise, P.J., July 16, 2007]).
In support of this motion, movant has provided several documents, including the proposed claim, an affidavit, a copy of the disciplinary hearing transcript, and a copy of his brief to the Appellate Division, Third Department with respect to his CPLR Article 78 proceeding.(5) The Court will set forth the factual history based upon a review of all the documents contained in movant's motion. Movant was issued an Inmate Misbehavior Report charging him with violating Prison Disciplinary Rules 113.25 (drug possession), 114.10 (smuggling), 121.12 (phone/program violation), and 180.10 (facility visiting violation).(6) The charges were based upon information obtained from a confidential DOCCS Office of Special Investigations Narcotics Unit investigation. Based upon the content of a telephone conversation between movant and his wife, a DOCCS investigator (the Investigator) concluded that movant was soliciting his wife to smuggle drugs into the facility. In the Inmate Misbehavior Report, the Investigator indicated that movant stated that "it needs 'to be up' and that the 'churros is different, you know why.' "(7) Movant's wife also allegedly stated that " 'I ain't touching it, got someone else,' " to which movant replied " '[h]ave someone else do it, even after they put it together you got to wash off.' "(8)
Movant told the hearing officer that the two phrases - "I ain't touching it, got someone else" and "[h]ave someone else do it, even after they put it together you got to wash off" - pertain to the problems that his wife was having getting past the ION scanner when she attempted to enter the facility for visitation.(9) Movant stated that he had previously filed a grievance concerning the manner in which his fiancee (later his wife) had been tested by the ION scanner. He noted that as part of the grievance hearing, he had a discussion with an inmate panel member who was having the same type of problem. The panel member indicated that he had his wife wear gloves when she drove to the facility so that she would not pick up drug residue from some other objects, like money or a gas pump. Movant stated that during the grievance hearing he indicated that he shouldn't have to constantly remind his wife that she shouldn't touch things and needed to wash off before coming for visitation.
At his disciplinary hearing, movant explained that in the telephone conversation, he was merely reminding his wife that she needed to wash before coming to visit and being scanned so that she could gain entrance to the facility. Movant then requested a copy of the grievance hearing tape in order to support his testimony. When the Hearing Officer informed him that a tape did not exist, movant requested that the grievance panel inmate member be called as a witness to provide information about the conversation which took place during the grievance hearing. Specifically, movant stated that he wanted to use the proposed witness' testimony to "back up [his testimony in the Disciplinary Hearing] . . . so that way [the Hearing Officer would] know [he was] not just making this shit up . . . [the Hearing Officer would] know what [he was] saying [was] why [he] wanted [at least] a tape or . . . somebody to verify what [he] was saying to [the Hearing Officer during testimony]."(10) The Hearing Officer found that the panel member's purported testimony concerning the conversation did not pertain to the issues present in the Disciplinary Hearing and denied movant's request as irrelevant. However, the Hearing Officer did indicate that he would consider the copy of the grievance as well as movant's testimony concerning the matter. Thereafter, the Investigator and movant's wife also testified.
Upon completion of the disciplinary hearing and based upon the Investigator's testimony, the Hearing Officer found that movant and his wife used "terminology 'code' words"(11) during their telephone conversation which pertained to the purchasing and smuggling of drugs into the facility. He based this determination upon the Inmate Misbehavior Report and the Investigator's testimony as well as his own observation that the tone of movant's voice changed when he spoke the quoted words. The Hearing Officer further observed that during the taped conversation, movant's wife stated that "it's something, at the end, it's not all you want, but its something," to which movant replied "I know, I ain't going to lie, don't want to spread the bread, but now the bread is there."(12) The Hearing Officer found that these statements, in addition to the four other statements contained in the Inmate Misbehavior Report, pertained to their discussion of purchasing and smuggling drugs into Elmira. The Hearing Officer specifically noted that he did not find either movant's testimony or that of his wife to be credible. The Hearing Officer found movant guilty of the four charges and sentenced him to 90 days SHU confinement, 90 days loss of packages, commissary and phone privileges, and 180 days loss of all visits.
Movant alleges that the Hearing Officer's denial of his request for the grievance panel inmate member to be called as a witness was a violation of 7 NYCRR 254.5 which removes defendant's absolute immunity. An inmate has 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" (Bottom v State of New York, 142 AD3d 1314, 1315 [4th Dept 2016], appeal dismissed 28 NY3d 1177 ; see 7 NYCRR 254.5 [a]). This right has been recognized as a due process safeguard (Bottom, 142 AD3d at 1315). In Bottom, the Fourth Department held that a Hearing Officer's improper denial of an inmate's requested witness (on the basis of relevancy) may form the basis of a claim for wrongful confinement by removing defendant's absolute immunity (id.).(13)
In this case, the Hearing Officer determined that the proposed witness' testimony concerning the conversation that took place in the grievance hearing was irrelevant. If this determination is ultimately found to be incorrect, movant will have established a violation of the rules and regulations such that defendant's absolute immunity is removed. However, as set forth previously herein, movant is still required to establish the elements for a cause of action for wrongful confinement (Moustakos, 133 AD3d at 1269). There is no dispute that defendant both intended to and did confine movant, without his consent, from July 14, 2017 through September 12, 2017. Therefore, the only remaining issue is whether the confinement was privileged, i.e. whether absent the violation, the outcome would have been different. Movant admittedly sought the panel member's testimony in an effort to bolster his own credibility at the Disciplinary Hearing solely with respect to his explanation concerning two of the four phrases which were considered to be coded conversation, those being the statements that movant's wife should not touch certain objects and that she should still wash thoroughly. Movant has provided no evidence or argument that his proposed witness would offer any testimony to explain the meaning of the other two allegedly coded statements, i.e. "it needs to be up" and "churros is different, you know why." Whether the Hearing Officer would have found these statements to be sufficient on their own to support the charges against movant is not a determination this Court is able to review. Because the proposed testimony would not have established a complete defense to the misconduct charged, the Court finds that movant has failed to set forth evidence that the testimony from the inmate panel member would have changed the outcome of the Disciplinary Hearing. Consequently, there is no evidence from which the Court could infer that movant's confinement was not privileged. Accordingly, the all-important factor of merit weighs against movant.
"[W]here 'the excuse offered for the delay is inadequate and the proposed claim is of questionable merit' "(Matter of Robinson v State of New York, 35 AD3d 948, 949-950 [3d Dept 2006], quoting Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]), denial of a late claim application is appropriate (see Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). Although four of the six statutory factors weigh in favor of movant, the crucial issue of merit weighs against him. Accordingly, movant's motion for permission to file and serve a late claim is denied in its entirety.
September 28, 2018
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on movant's motion:
1) Notice of Motion filed July 9, 2018; Affidavit of Anthony Adams sworn to July 4, 2018, and attached exhibits.
2) Affirmation in Opposition of Douglas H. Squire, AAG, dated August 14, 2018.
3) Movant's Reply dated August 17, 2018.
1. Movant has attached a document entitled "claim" immediately following his affidavit in support of this motion. This document also contains subsections entitled memorandum of law, damages, and conclusion. The Court will refer to the entire document as the Proposed Claim.
2. Affidavit of Anthony Adams, sworn to July 4, 2018, in Support of Motion, Exhibit H at 27, 37.
3. Affirmation of Assistant Attorney General (AAG) Douglas H. Squire, dated Aug. 14, 2018, in Support of Motion, ¶ 9.
4. "Where an alleged regulatory violation implicates no constitutionally required due process safeguard, however, the State retains its absolute immunity from liability" (Bethune v State of New York, UID No. 2015-015-098 [Ct Cl, Collins, J., Dec. 7, 2015]).
5. After movant commenced the CPLR Article 78 proceeding, his disciplinary determination was administratively reversed and expunged based upon a recommendation from the Attorney General's Office.
6. Affidavit of Anthony Adams, sworn to July 4, 2018, in Support of Motion, Exhibit I.
9. It appears that on three occasions when movant's wife was scanned, the scanner registered that she had drugs or drug residue on her person.
10. Affidavit of Anthony Adams, sworn to July 4, 2018, in Support of Motion, Exhibit F at 37.
11. id., Exhibit H.
12. Id. (internal quotation marks omitted).
13. This Court agrees with the Court of Claims (Collins, J.) analysis in Adams, UID No. 2017-015-259 that "the determination of a Hearing Officer as to whether or not a proposed witness' testimony is material, redundant or jeopardizes institutional safety is necessarily discretionary and classically quasi-judicial in nature. Hence, 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 the governing regulation but, rather, as an abuse of discretion entitled to absolute immunity in an action for money damages in the Court of Claims." Nevertheless, and absent any contrary Appellate Division holding, this Court is constrained by the Fourth Department's determination in Bottom.