|Claimant short name:||DAWES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||IAN DAWES, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Stephen Barry, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 29, 2019|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for wrongful confinement in keeplock at Green Haven Correctional Facility (CF) for 17 days commencing on May 5, 2014. The trial of this claim was conducted by videoconference on June 6, 2019, with the parties appearing at Green Haven CF in Stormville, New York and the Court sitting in Albany, New York. Claimant presented his own testimony; defendant called no witnesses. Claimant offered two exhibits that were received into evidence; defendant offered one exhibit that was received in evidence. After listening to and observing claimant's demeanor as he testified, and upon consideration of his testimony and all the other evidence received at trial, the applicable law, and the arguments of the parties at trial, the Court concludes that defendant is entitled to absolute immunity for the actions of its agents.
On May 5, 2014, claimant, who was then incarcerated at Green Haven CF, was placed in keeplock in his cell by Sergeant Carter pending the issuance of an inmate misbehavior report (IMR) charging him with theft of State property and smuggling in connection with an incident in which spices and food items were allegedly taken without authorization from the mess hall and brought to a religious event within the facility. In the course of his investigation of the incident, Sgt. Carter received two "To/From" memoranda from corrections staff regarding the incident. In the first To/From memorandum to Sgt. Carter dated May 5, 2014, Correction Officer (CO) Lenihan stated that at approximately 9:40 p.m. on May 5, 2014,
"the feed up carts from the event were returned to the Messhall. As the inmates began to unload the metal food bins [he] instructed them to open each bin. Upon opening the bins the following items were found, Green Peppers, Corn Meal, Cabbage, Carrots, Potatoes, Flour, Onions, Raw Rice, Corn Muffin Mix, Brown Sugar. These items were not authorized to leave the Messhall."
(Defendant's Exhibit A [Lenihan Memorandum, dated May 5, 2014]). In the second To/From memorandum to Sgt. Carter dated May 6, 2014, CO Gleason stated that at approximately 8:15 p.m. on May 5, 2014,
"while making rounds in J-school [he] . . . observed Inmate Moore . . . with a stainless steele [sic] pan full of spices. [Inmate Moore] was taking spices and putting them in other containers. Those containers and the stainless steele [sic] pan were removed from the room. [CO Gleason] then returned to the Audio Visual room and opened a desk drawer and found a garbage bag with 8 separate bags of flour or corn meal and one bag of brown sugar. [CO Gleason] took the spices and flour, sugar to the mess hall and gave the things to Sgt. Carter."
"When [CO Gleason] returned to J-school [he] went in to talk to Inmate Moore. [Inmate Moore] told [him] that all of the spices, sugar and flour came in the carts from the messhall."
(id. [Gleason Memorandum, dated May 6, 2014]). The Court received into evidence an undated written memorandum from Sid Johnston to CO Grogan that provided a list of the items found at the event with their prices and noted that "[a]ll of these items were used for the event but not given to be taken to the event in 'Raw' form" (id. [Undated Johnston memorandum]). The Johnston memorandum valued the cost of all food items as $60.39 and noted that "[a]ll items were weighed and destroyed after pricing them out" (id.).
On May 7, 2014, Sgt. Carter issued an IMR charging claimant with violating Department of Corrections and Community Supervision (DOCCS) Rule 116.10 for theft of State property and Rule 114.10 for smuggling on May 5, 2014 (see Claimant's Exhibit 1). The IMR described the incident as follows:
"On 5-5-14 at approx[imately] 8:15 the food carts from the kitchen arrived at J-School for the Rastafari Passover Event. These feed-up carts were then searched and found to be holding various spices and food items that were not authorized to leave the messhall. The following were the items stolen from the messhall:  green peppers,  corn meal,  cabbage,  carrots,  potatoes,  flour,  onions,  rice,  corn muffin mix,  brown sugar, and  miscellaneous spices . . . Food Administrator Johnson [sic] then weighed and priced and then destroyed. These items that were smuggled out of the messhall were valued at $60.39."
(id.). Sgt. Carter further stated in the IMR that his investigation revealed that claimant was one of three inmates who had access to the items and who had "also loaded the food carts" (id.). Claimant testified at trial that although he was at the Rastafarian event on May 5, 2014, he did not have access to the feed-up cart and was not in the mess hall on that date. Claimant testified that Sgt. Carter did not personally witness the loading of the carts and had allegedly investigated the incident and obtained information about the incident from Johnston, a civilian cook, who was not present at Green Haven CF on May 5, 2014, and that the IMR therefore constituted "double hearsay."(1) Claimant testified that if either Sgt. Carter or Johnston had witnessed the incident that day they would have known that claimant was not present in the mess hall, did not load the food carts, and had no connection to the incident. Claimant testified that he wrote to the Green Haven CF Superintendent objecting to his confinement as being unauthorized because Sgt. Carter did not notify the Superintendent of claimant's confinement on May 5, 2014 before going off duty and explaining that he had no involvement in the incident. Acting Deputy Superintendent for Security Melville wrote back to claimant on May 9, 2014 informing claimant that a hearing would be held and to "[a]llow the hearing process to proceed and a decision will be rendered by your hearing officer" (Claimant's Exhibit 3).
The Tier II disciplinary hearing on the IMR was commenced on May 9, 2014 by Hearing Officer (HO) Hamm. Claimant testified that he requested from HO Hamm a copy of the notice that Sgt. Carter was required to make to the Superintendent after claimant was confined to keeplock on May 5, 2014 pursuant to 7 NYCRR 251-1.6 (e) (1) and that HO Hamm informed him that the only notice that was required to be given to claimant was the IMR. At the hearing, HO Hamm heard the testimony of claimant, Sgt. Carter, CO Grogan, and another witness named "Mr. Coelao" (Claimant's Exhibit 2, p.2). Claimant testified that the testimony at the hearing confirmed that claimant was not present at the mess hall and was not responsible for loading the food carts. On May 21, 2014, HO Hamm found claimant not guilty and dismissed both charges, stating as a reason for his disposition that "Sgt. Carter's investigation was based upon information received from civilian Food Service who was not present on 5/5/15 [sic]" (id.).
In the context of the prison disciplinary process, where defendant's "employees act under the authority of and in full compliance with the governing statutes and regulations (Correction 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 v State of New York, 72 NY2d 212, 214 ). Thus, "unless the [correctional] employees exceed the scope of their authority or violate the governing statutes and regulations [relating to the 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 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). Where the State has lost its absolute immunity, a claimant must still prove all the elements of a cause of action for unlawful confinement, namely "that the defendant intended to confine the [claimant], that the [claimant] was conscious of the confinement and did not consent to the confinement, and that the confinement was not otherwise privileged" (Martinez v City of Schenectady, 97 NY2d 78, 85 ; see Broughton v State of New York, 37 NY2d 451, 456 , cert denied sub nom. Schanbarger v Kellogg, 423 US 929 ).
At the close of claimant's case, defendant moved to dismiss the claim on the ground that there was no proof that defendant's agents had acted beyond the scope of their authority in the disciplinary process and that claimant had not made a prima facie case of unlawful confinement. In opposition, claimant contended that his confinement was in violation of two DOCCS regulations, and thus defendant is not entitled to immunity and his confinement was not privileged. First, claimant contends that Sgt. Carter violated 7 NYCRR 251-1.6 (e) (1), which provides that "[a]n employee who places an inmate in confinement in his cell . . . shall report such fact, in writing, to the superintendent as soon as possible, but in any event before going off duty." Second, claimant asserts that Sgt. Carter violated 7 NYCRR 251-3.1 (b), which requires that an IMR "shall be made by the employee who has observed the incident or who has ascertained the facts of the incident." After defendant rested, defendant again moved to dismiss the claim on the ground that defendant's agents acted in a quasi-judicial capacity, that there was no evidence they acted beyond the scope of their authority, and that Sgt. Carter investigated the matter sufficiently to charge claimant under the IMR. Claimant opposed the motion, arguing that the evidence established that Sgt. Carter violated DOCCS rules in authoring the IMR because he did not personally witness the incident or ascertain the facts of the incident from a person who witnessed the incident. The Court reserved decision on both motions.
As an initial matter, other than claimant's assertions, there was no affirmative evidence adduced at trial that Sgt. Carter did not report claimant's confinement to the Superintendent on May 5, 2014 as required by 7 NYCRR 251-1.6 (e) (1), and thus no proof that the provision was violated. Indeed, the evidence adduced at trial demonstrates that claimant's confinement was noted in writing on May 5, 2014 in a logbook (see Defendant's Exhibit A [logbook page]). In any event, "[w]here an alleged regulatory violation implicates no constitutionally required due process safeguard, . . . the State retains its absolute immunity from liability" (Bethune v State of New York, 50 Misc 3d 1216[A], *3-4 [Ct Cl 2015]). Here, even assuming that Sgt. Carter violated 7 NYCRR 251-1.6 (e) (1), that provision does not require that the report be provided to claimant, and a violation of that rule does not implicate claimant's due process rights (see Lamage v State of New York, UID No. 2015-044-002 [Ct Cl, Schaewe, J., Apr. 17, 2015] [7 NYCRR 251-1.6 (e) (1) does not mandate that the report be provided to the inmate and failure to issue the report "does not implicate any due process safeguard"]; Lamage v State of New York, UID No. 2006-015-140 [Ct Cl, Collins, J., Dec. 22, 2006]; but see Butler v State of New York, UID No. 2002-011-106 [Ct Cl, McNamara, J., June 12, 2002] [violation of 7 NYCRR 251-1.6 (e) (1) rendered defendant liable]). Moreover, were it further assumed that Sgt. Carter's failure to make the report implicated claimant's due process rights, claimant has failed to address or argue that the violation resulted in prejudice to him (see Watson v State of New York, 125 AD3d 1064, 1065 [3d Dept 2015]; Davidson v State of New York, 66 AD3d 1089, 1090 [3d Dept 2009]; Vasquez v State of New York, 10 AD3d 825, 826 [3d Dept 2004]).
Claimant also asserts that 7 NYCRR 251-3.1 (b) was violated because Sgt. Carter did not witness the incident giving rise to the IMR or ascertain the facts of the incident from a person who personally witnessed the incident. There is no violation of 7 NYCRR 251-3.1 (b) if the employee who authors the IMR either witnesses the incident or ascertains the facts of an incident. The evidence fairly establishes that Sgt. Carter did not witness the incident, and indeed, defendant has admitted as much (see Amended Verified Answer, ¶ 5). However, contrary to claimant's position, 7 NYCRR 251-3.1 (b) by its very own terms does not require the author of an IMR to ascertain the facts from a witness to the incident. Indeed, if it were required that an author must ascertain the facts from a witness to the incident, perpetrators of unwitnessed acts could not be subjected to discipline. Rather, an employee need only ascertain the facts through an investigation prior to the issuance of an IMR (see Matter of Hernandez v Fischer, 67 AD3d 1225, 1226 [3d Dept 2009] [rejecting inmate's challenge of an IMR where "the author investigated the matter to ascertain the facts before he wrote the (IMR)"]; Matter of Staton v Goord, 41 AD3d 1105, 1106 [3d Dept 2007]; see also Lamage v State of New York, 31 Misc 3d 1205 [A], at *3 [Ct Cl 2010] [finding a violation of 7 NYCRR 251-3.1 (b) where CO admitted that he did not ascertain facts of the incident]), which may include interviewing witnesses to the incident (see Matter of Howard v Goord, 9 AD3d 778, 778 [3d Dept 2004], appeal dismissed 3 NY3d 764  [IMR found proper where investigators obtained signed statements from witnesses to incident]). Thus, inasmuch as the IMR contains facts about the alleged incident that were gleaned from Sgt. Carter's investigation and the memoranda that he received from Green Haven CF staff (see Defendant's Exhibit A [Lenihan Memorandum, dated May 5, 2014]; id. [Gleason Memorandum, dated May 6, 2014]; id. [Undated Johnston note]), Sgt. Carter complied with 7 NYCRR 251-3.1 (b). While claimant takes issue with the sufficiency of Sgt. Carter's investigation because he relied upon information from Johnston, who was not present in the mess hall the day of the incident, all that 7 NYCRR 251-3.1 (b) requires of an employee who has not witnessed an incident is that the employee ascertain the facts through investigation or other steps, such as taking or receiving statements about the incident, prior to issuing an IMR, which was done in this case.(2)
In sum, claimant has not established a due process violation that would strip defendant of its absolute immunity from liability, and thus defendant is not liable to claimant.
The evidence fails to establish that defendant's agents exceeded the scope of their authority or violated a DOCCS rule implicating claimant's due process in its confinement of claimant. Thus, defendant is entitled to absolute immunity for the actions of its agents. Accordingly, claim number 124671 is DISMISSED. Any motions not previously ruled upon are hereby DENIED.
The Chief Clerk is directed to enter judgment accordingly.
July 29, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Although claimant testified that Sgt. Carter spoke to Sid "Johnson," the record reflects that "Johnston" is the correct spelling (see Defendant's Exhibit A [Undated Johnston note]). Unless otherwise indicated, all quotations are to the audio recording of the trial of this claim.
2. Although two Court of Claims decisions have concluded 7 NYCRR 251-3.1 (b) may be violated when the author of an IMR ascertains the facts of the incident from a source whose reliability is not established (see Shelton v State of New York, UID No. 2018-018-989 [Ct Cl, Fitzpatrick, J., Dec. 20, 2018]; Lamage, 31 Misc 3d 1205 [A], at *2), the Court does not agree. As an initial matter, the appellate authority relied upon by Shelton and Lamage analyzed whether the challenged prison disciplinary guilty determinations were supported by substantial evidence (see Matter of Porter v Annucci, 156 AD3d 1430, 1430 [4th Dept 2017]; Matter of Cotto v Bautista, 252 AD2d 977, 977 [4th Dept 1998]; see also Matter of Foster v Coughlin, 76 NY2d 964  [substantial evidence to support guilty determination where victim's credibility was sustained by HO]; Matter of Haynes v Andrews, 283 AD2d 746 [3d Dept 2001] [substantial evidence supported determination where CO ascertained fact from victim's report, CO's observations, victim's medical records and petitioner's statements]), and did not address whether an inmate's due process rights were violated. In the Court's view, consideration of the reliability of a source that a non-witnessing employee utilizes in issuing an IMR is an evidentiary matter (see Matter of Staton, 41 AD3d at 1106 [HO "independently assessed the reliability of the confidential informant through a detailed exchange between [the HO] and the [authoring] sergeant who interviewed the informant" prior to issuing the IMR]), and thus is impertinent to whether the employee complied with 7 NYCRR 251-3.1 (b). Therefore, HO Hamm's finding that the IMR could not be sustained because Sgt. Carter relied upon information from an individual who was not present on the date of the incident was solely an evidentiary finding addressed to the sufficiency of the charges.