|Claimant(s):||LYNDEN LOBBAN (98-A-0630)|
|Claimant short name:||LOBBAN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||LYNDEN LOBBAN, Pro se|
|Defendant's attorney:||LETITA JAMES, Attorney General
of the State of New York
By: Stephen Barry, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 1, 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 26 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 Eric Gutwein, a Department of Corrections and Community Supervision (DOCCS) Commissioner's Hearing Officer. Claimant did not offer any documentary exhibits; defendant offered one exhibit that was received in evidence.(1)
After listening to and observing the demeanor of the witnesses as they testified, and upon consideration of their 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 into 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 DOCCS Rule 116.10 for theft of State property and Rule 114.10 for smuggling on May 5, 2014 (see id. [IMR, dated May 7, 2014]). 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. These items were returned to the messshall and secured. Food Administrator Johnson then weighed and priced and then destroyed these items. 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 he was not even in the mess hall on May 5, 2014.
The Tier II disciplinary hearing on the IMR was commenced on May 10, 2014 by Hearing Officer (HO) Schmitt. At the hearing, HO Schmitt heard the testimony of claimant, Sgt. Carter, COs Germano and Palmer, Head Cook Coehlo, and Inmates Dawes and McLean (id. [Disciplinary Hearing Disposition Rendered, p.2]). On May 16, 2014, HO Schmitt found claimant guilty of both charges, assessed him a penalty of 30 days in keeplock and 30 days loss of packages, commissary and phones, and ordered him to make restitution in the amount of $20.13 (id. [Disciplinary Hearing Disposition Rendered, p.1]). Claimant appealed HO Schmitt's determination on the ground that there was no evidence to support the charges in the IMR (see id. [Lobban Appeal, received May 20, 2014, p.2]). In his appeal, claimant stated that the IMR "was not written by any employee who had observed the incident" (id. [Lobban Appeal, received May 20, 2014, p. 1]). On May 28, 2014, HO Schmitt's determination was administratively reversed by Captain Carey, with no reason given (see id.). Claimant testified that Capt. Carey reversed HO Schmitt's determination because Sgt. Carter did not personally observe the incident or ascertain the facts of the incident.
Eric Gutwein, a DOCCS Commissioner's Hearing Officer, testified that he reviewed the record of claimant's disciplinary record in this matter. Gutwein testified that claimant was given an opportunity to be heard at the Tier II hearing and that HO Schmitt heard from several witnesses and based his determination on the evidence received at the hearing. On cross- examination, Gutwein testified that while he could not specifically state from his review of the records what Sgt. Carter relied upon in issuing the IMR, it appeared that the IMR was based upon the memoranda of COs Lenihan and Gleason to Sgt. Carter and Johnston's memorandum.
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 failed to prove the elements of a cause of action for unlawful confinement. In opposition, claimant argued that he made out a prima facie case of unlawful confinement. After defendant rested, defendant again moved to dismiss the claim on the ground that there was no evidence that defendant's agents acted beyond the scope of their authority and that defendant's agents acted in a quasi-judicial capacity. Claimant opposed the motion, arguing that the evidence establishes that claimant was wrongfully confined and 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 witness. The Court reserved decision on both motions.
DOCCS regulations provide that a "misbehavior report shall be made by the employee who has observed the incident or also has ascertained the facts of the incident" (7 NYCRR 251-3.1 [b] [emphasis added]). Claimant asserts that 7 NYCRR 251-3.1 (b) was violated in this instance because Sgt. Carter did not witness the incident giving rise to the IMR or ascertain the facts of the incident from a person who witnessed the incident. The evidence proponderates in favor of a finding that Sgt. Carter did not witness the incident. 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], *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 memorandum]), Sgt. Carter complied with 7 NYCRR 251-3.1 (b).
To be sure, claimant testified that Capt. Carey reversed HO Schmitt's determination because Sgt. Carter did not ascertain the facts of the incident. Nevertheless, Capt. Carey's reversal failed to provide any such rationale and claimant did not provide a basis for his assertion, and thus there is no objective evidence in the record supporting that claim. While claimant may take issue with the sufficiency of Sgt. Carter's investigation, all that 7 NYCRR 251-1.3 (b) requires of an employee that 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 right in its confinement of claimant. Thus, defendant is entitled to absolute immunity for the actions of its agents. Accordingly, claim number 124682 is DISMISSED. Any motions not previously ruled upon are hereby DENIED.
The Chief Clerk is directed to enter judgment accordingly.
August 1, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. At the trial of this claim, the Court received into evidence Defendant's Exhibit A, which was in possession of the parties at Green Haven CF and was subsequently transmitted by the Assistant Attorney General (AAG) defending the claim to the Court after trial. At trial, defendant's witness Eric Gutwein testified about an undated memorandum from Food Service Administrator Sid Johnston to Correction Officer Grogan that was contained within Defendant's Exhibit A. However, Defendant's Exhibit A did not contain the undated Johnston memorandum when it was received by the Court, and the Court requested that the AAG transmit the missing Johnston memorandum to the Court, with a copy to claimant, to complete the record. The AAG subsequently transmitted the missing memorandum to the Court on July 23, 2019.
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, 966  [substantial evidence to support guilty determination where HO resolved credibility issues in favor of statements in the IMR]; Matter of Haynes v Andrews, 283 AD2d 746, 746-747 [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 Schmitt'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.