Movant's application for leave to file and serve a late claim was denied where his proposed wrongful confinement claim was premised only on a violation of a DOCCS' Directive and, in addition, the Directive permitted the exercise of discretion. Thus, movant failed to demonstrate the potential merit of his claim which, when considered with the other factors, did not weigh in movant's favor.
|Claimant(s):||KERON PITT, 17A3006|
|Claimant short name:||PITT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Keron Pitt, Pro Se|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Christina Calabrese, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 31, 2019|
|See also (multicaptioned case)|
Movant, a pro se inmate, seeks leave to file a late claim pursuant to Court of Claims Act § 10 (6).
Movant alleges a cause of action for wrongful confinement arising from his 97-day confinement to the Special Housing Unit (SHU) following a prison disciplinary hearing in which he was found guilty of possessing weapons and an altered item. The Misbehavior Report, written by the Correction Officer who allegedly found the contraband, states that he found two sharpened pieces of metal:
"between 34 and 35 cube, it was acces[s]ible from 34 cube. I then found a 6 3/4" x 1" sharpened metal bar and a 6 1/2" x 1/8" sharpened piece of metal with a ½" handle made from a shoelace. [A]ll weapons were secured per directive 4910A. At the time of this frisk inmate Pitt 17A3006 housed in D-1-34 cube" (movant's Exhibit A).
Movant alleges that the findings of guilt were administratively reversed and contends the State is not immune from liability for violation of its own rules and regulations. Specifically, movant alleges he was not permitted to observe the search of his cell in violation of Department of Corrections and Community Supervision (DOCCS) Directive 4910, and the Misbehavior Report failed to provide adequate notice of the charges against him in violation of 7 NYCRR 251-3.1 (b).
The first issue for determination upon a late claim motion is whether the application is timely. Section 10 (6) of the Court of Claims Act requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." A cause of action for wrongful confinement accrues upon a movant's release from confinement (Trammell v State of New York, 172 AD3d 1847 [3d Dept 2019]) and is an intentional tort governed by a one-year statute of limitations (CPLR § 215 ). While movant alleges, incorrectly, that the claim accrued upon the issuance of the Misbehavior Report, he also states in an affidavit submitted in support of the motion that he was confined for a period of 97 days. Thus, from the facts alleged it is apparent that the claim accrued on the date of movant's release from confinement on or about July 21, 2019. Consequently the instant motion filed on November 8, 2019 is timely, having been made well within the one-year statute of limitations.
Court of Claims Act § 10 (6) permits this Court, if the applicable statute of limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether 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 the state; and whether the claimant has any other available remedy."
Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Matter of Barnes v State of New York, 164 AD3d 977 [3d Dept 2018]; Williams v State of New York, 137 AD3d 1579 [4th Dept 2016]; appeal dismissed and lv denied 28 NY3d 958 ). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009]; Edens v State of New York, 259 AD2d 729, 730 [2d Dept 1999]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Barnes v State of New York, 158 AD3d 961, 962 [3d Dept 2018]; Martinez v State of New York, 62 AD3d 1225 [3d Dept 2009]; Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]).
The excuse advanced by movant for failing to timely file and serve the claim is that
misinformation he received from a clerk in the law library resulted in his failure to serve a timely notice of intention to file a claim. Such an excuse is tantamount to ignorance of the law, which is not a reasonable excuse for failing to timely file and serve a claim (Borawski v State of New York, 128 AD3d 628 [2d Dept 2015]; Olsen v State of New York, 45 AD3d 824 [2d Dept 2007]; Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]).
Movant did not address the issues of notice, opportunity to investigate and prejudice to the State and it is unclear from the proposed claim and the documents attached thereto whether the State had notice of the essential facts constituting the claim. The documents attached to the proposed claim, which include the Misbehavior Report, Hearing Disposition, a Statement of Evidence Relied Upon and a copy of the administrative appeal reversal, do not indicate the basis for the reversal of the Hearing Officer's determination. To the extent movant contends that the determination of guilt and his punitive confinement resulted from a violation of one of DOCCS' own rules and regulations, no proof exists that DOCCS was aware of this contention during the 90-day period provided for filing a claim. Nor is there proof that the respondent had an opportunity to timely investigate. Nevertheless, the State has not articulated any reason to believe it will suffer undue prejudice in the event late claim relief is granted. The State's contention that it was prejudiced by the movant's failure to allege the correct date of accrual in the claim is unpersuasive, not only because its own records contain this information, but also because movant specifically alleged in his affidavit submitted in support of the motion that he was confined for a period of 97 days. The date of accrual is easily discernible from DOCCS' records.
With respect to the required showing of merit, the claim is sufficiently established if the claimant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective, and the record as a whole provides reasonable cause to believe that a valid cause of action exists (Matter of Martinez, 62 AD3d at 1227; Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
While conduct of correctional facility employees taken in furtherance of authorized disciplinary measures is quasi-judicial in nature and entitled to absolute immunity (Arteaga v State of New York, 72 NY2d 212 ; Diaz v State of New York, 155 AD3d 1279 [3d Dept 2017], lv dismissed in part and denied in part 30 NY3d 1101 ), the State is not immune from liability 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, 72 NY2d at 221). Here, movant alleges DOCCS violated Directive 4910 when correction officers searched his cell without allowing him the opportunity to observe. However, this Directive permits the exercise of discretion by providing that an inmate may observe a cell search unless his or her presence constitutes a safety or security risk (see Flemming v State of New York, 120 AD3d 848 [3d Dept 2014]; Holloway v State of New York, 285 AD2d 765 [3d Dept 2001]).(1)
In exercising their discretion to preclude an inmate's presence during the course of a cell search, "the correction officers conducting the [search] were nevertheless exercising a discretionary authority for which the State has absolute immunity" (id. at 766). Here, however, movant argues, in essence, that no discretion was exercised because administrative policy precluded inmates from observing a search of their cell in violation of the applicable Directive. Movant alleges in this regard that Correction Officer McFarren testified at the hearing that "it was a practice to keep the inmates in the T.V. Room during a dorm frisk" (proposed claim, ¶ 9 [a]). While the State may be immune from liability for an improvident exercise of discretion, it is not immune from liability where it exercises no discretion at all (Haddock v City of New York, 75 NY2d 478 ). Nevertheless, the violation of this Directive does not relate to the due process concerns of the hearing and may not serve as a basis for a wrongful confinement claim (Ramirez v State of New York, 175 AD3d 1635, 1638 [3d Dept 2019] [violation of drug-testing directives does not constitute a due process violation]; Miller v State of New York, 156 AD3d 1067, 1068 [3d Dept 2017] [violation of drug-testing directives do not relate to the due process concerns of the hearing]).
To the extent movant bases his claim on the Hearing Officer's conduct in limiting his questioning of a witness, this was a matter committed to the Hearing Officer's discretionary authority thereby entitling the State to absolute immunity (Diaz v State of New York, 155 AD3d 1279, 1281 [3d Dept 2017]).
Lastly, movant alleges the Misbehavior Report failed to provide adequate notice of the charges because it made no mention of where two of the four weapons were found. A Misbehavior Report is required to include "a written specification of the particulars of the alleged incident of misbehavior involved" (7 NYCRR 251-3.1 [c]). The Misbehavior Report in this case fulfilled that criteria by properly referencing all of the weapons found in movant's cell, the rule violations and the date, time and place of the incident (id.). Moreover, even if the Misbehavior Report was deficient, movant failed to provide any basis to conclude that the confinement was not privileged (see generally Broughton v State of New York, 37 NY2d 451, 456 ), cert denied sub nom. Schanbarger v Kellogg, 423 US 929 ). Movant neither contends nor demonstrates that the outcome of the hearing would have been different had the Misbehavior Report included the precise location of all of the weapons found in movant's cell (see Moustakos, 133 AD3d 1268 [4th Dept 2015]; see also Watson v State of New York, 125 AD3d 1064 [3d Dept 2015]).
In sum, none of the alleged violations support a wrongful confinement claim nor has movant alleged or even remotely demonstrated how the outcome of the hearing would have been different absent the violations. The wrongful confinement claim being legally defective, movant is unable to demonstrate its potential merit.
As for the final factor to be considered, the Court is unaware of the existence of alternative remedies.
Insofar as the majority of factors do not weigh in favor of granting late claim relief, movant's application must be denied.Accordingly, the motion is denied.
December 31, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. The Appellate Divisions of the Third and Fourth Departments appear to disagree with respect to whether a violation of a due process safeguard requiring the exercise of discretion may form the basis for a wrongful confinement claim. Whereas the Fourth Department held in Bottom v State of New York (142 AD3d 1314 [4th Dept 2016], appeal dismissed 28 NY3d 1177 ) that a Hearing Officer's erroneous denial of claimant's request for witnesses on the ground the proffered testimony was irrelevant was not subject to absolute immunity, the Third Department held in Diaz (155 AD3d at 1281) that a Hearing Officer's denial of claimant's request to ask a witness certain questions, even if erroneous, was nevertheless within her discretionary authority and did not demonstrate a violation of the applicable regulation.