Claimant's motion and defendant's cross motion for summary judgment denied. Claimant proved prima facie a regulatory violation but did not prove prejudice, therefrom, and thus failed to demonstrate a violation of due process. Moreover, no violation of due process on second concurrent IMR was alleged.
|Claimant(s):||LUIS CINTRON, 16A3160|
|Claimant short name:||CINTRON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||LUIS CINTRON, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: J. Gardner Ryan, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 5, 2019|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, seeks monetary compensation for 21 days of allegedly wrongful confinement in a special housing unit (SHU) at Green Haven Correctional Facility (CF). Claimant moves and defendant cross-moves for summary judgment.
The claim alleges that claimant was confined in the SHU at Green Haven CF beginning on June 22, 2017 based upon an inmate misbehavior report (IMR) written by Correction Officer (CO) Sherrer. The IMR states that CO Sherrer observed claimant throw an unknown object on the ground that was recovered and found to be the tip of a latex glove containing plastic bags containing a green leafy substance, and it charged claimant with smuggling and drug possession. This claim alleges that a Superintendent's (Tier III) Hearing was subsequently conducted, during which CO Cable testified that he had found the latex glove tip and that CO Sherrer did not observe claimant throw anything on the floor. The claim asserts that claimant was found not guilty by the Hearing Officer (HO) "due to the contradictory testimony provided during the hearing" (Ryan Affirmation, Exhibit 1 [Claim number 130074, ¶ 8]). The claim alleges that CO Sherrer violated 7 NYCRR 251-3.1 (b) because he did not observe the incident and that CO Sherrer falsified the IMR and therefore that defendant is not entitled to absolute immunity for CO Sherrer's actions. The claim seeks compensation for 21 days of unlawful confinement, from June 22, 2017 through July 12, 2017, due to the actions of CO Sherrer in failing to follow the rules and regulations of the Department of Corrections and Community Supervision (DOCCS).
The submissions on the parties' competing motions demonstrates the following. The IMR authored by CO Sherrer was dated June 22, 2017 and was served on claimant on June 27, 2017 and stated the following:
"At approximately 10:35 a.m. [on June 22, 2017] while making a round [at Industry Shipping] I [CO Sherrer] observed [claimant], reach into his front right pocket and throw an unknown object on the ground as I approached him. [Claimant] was behind a stack of pallets when I witnessed these actions. I immediately ordered [claimant] from behind the pallets and performed a pat frisk, I did not find any contraband on [claimant] at this time. I then recovered the object I observed [claimant] throw on the shop floor; one latex glove tip containing one plastic bag containing a green leafy substance and one plastic bag containing 14 smaller bags with a leafy green substance inside. I immediately secured the contraband and called for my area supervisor. I maintained possession of the suspected contraband and turned it over to C. O. N. Huttel for testing. Using NIK test kit E the green leafy substance tested positive for marijuana weighing approximately 18 grams."
(Ryan Affirmation, Exhibit 2 [6/22/17 10:35 a.m. IMR]). The IMR was not endorsed by any other employee witnesses (id.). Claimant was escorted to the SHU for pre-hearing confinement, and he was issued a subsequent IMR by CO Weber charging him with smuggling and drug possession and alleging the following:
"Upon admission to SHU during the admission strip frisk in the SHU strip frisk room, [claimant] removed an unidentifiable object from his buttocks and threw it on the SHU strip frisk room floor. I [CO Weber] then recovered the object from the floor and it was two rolling papers containing an unidentified green leafy substance. The contraband was tested by CO N. Huttel using the NIK test kit E. It did test positive for marijuana weighing .4 grams."
(id., Exhibit 2 [6/22/17 10:55a.m. IMR]).
The disciplinary hearing was commenced by HO Kopp on July 3, 2017, at which claimant pleaded not guilty to the four charges contained in the two IMRs (see id., p.8). Claimant testified that he was first seen behind a stack of pallets in Industry Shipping when CO Cable saw him and then informed CO Sherrer of claimant's presence behind the pallets. Claimant testified that CO Sherrer searched him and found nothing, that CO Cable and another officer found the drugs and that CO Sherrer, who wrote the IMR, never saw claimant throw the drugs to the floor (see id., pp.12-14; pp.17-18). Claimant requested that CO Cable and the CO who was present with CO Cable at the time of the incident be called as witnesses at the hearing (see id., p.3). He also objected to the second IMR on chain of custody grounds, arguing that when CO Huttel tested the drugs, he combined the drugs found in Industry Shipping with the drugs allegedly found at SHU admission and that the test was contaminated (see id., pp.16-17). HO Kopp adjourned the hearing on July 3, 2017 for the purpose of gathering paperwork, securing witnesses and reviewing claimant's objections (see id., p.19). The hearing was recommenced on July 12, 2017, and CO Cable testified that he was in the area at time of the incident on June 22, 2017, that he witnessed claimant behind the pallet, that he advised CO Sherrer that claimant was behind the pallet, that his partner found contraband and that CO Cable called CO Sherrer over to look at it (see id. [Hearing Transcript, pp.21-22]). CO Sherrer did not testify at the hearing. On July 12, 2017, HO Kopp dismissed the IMR issued by CO Weber "due to a flaw in the chain of custody" and found claimant not guilty of the charges in the IMR issued by CO Sherrer "due to contradictory testimony provided during the hearing" (id. [Superintendent Hearing Disposition Rendered, D (Other Reasons for Disposition)]).
A party moving for summary judgment bears the initial burden of establishing his right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 ). It is well established that:
"[o]n a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party' (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 ). Summary judgment is a drastic remedy, to be granted only where the moving party has 'tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact' (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ) and then only if, upon the moving party's meeting of this burden, the non-moving party fails 'to establish the existence of material issues of fact which require a trial of the action' (id.)"
(Vega v Restani Constr. Corp., 18 NY3d 499, 503 ). A motion for summary judgment on a cause of action for wrongful confinement must establish prima facie the elements of the cause of action: that there was "(1) an intentional confinement (2) of which plaintiff was conscious and (3) to which plaintiff did not consent, and (4) that was not otherwise privileged" (Guntlow v Barbera, 76 AD3d 760, 762 [3d Dept 2010], appeal dismissed 15 NY3d 906 , citing Martinez v City of Schenectady, 97 NY2d 78, 85 ; Broughton v State of New York, 37 NY2d 451, 456-457 , cert denied sub nom. Schanbarger v Kellogg 423 US 929 ; see also Nazario v State of New York, 75 AD3d 715, 718 [3d Dept 2010], lv denied 15 NY3d 712 ). Here, the first three elements of the cause of action are not in dispute, and accordingly, the parties' motions turn on whether privilege attached to any period of claimant's confinement in the SHU, that is, whether the confinement was accomplished in accordance with DOCCS regulations (see Lee v State of New York, 124 AD2d 305, 307 [3d Dept 1986]; Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]).
Claimant argues that his confinement was not privileged due to violations of 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" and that "[w]here one or more employee has personal knowledge of the facts, each employee shall make a separate report, or where appropriate, each employee shall endorse his/her name on a report made by one of the employees." Here, claimant asserts that CO Sherrer did not witness the incident alleged in the IMR he authored, and although CO Cable found the contraband, CO Cable did not endorse the IMR (Cintron Affidavit, ¶¶ 4-7). Defendant opposes claimant's motion and cross-moves for summary judgment contending that claimant asserts that CO Sherrer made an "improper claim of personal observation and knowledge," which may be addressed to credibility but which does not constitute a violation of due process (see Ryan Affirmation, ¶ 10), and that the Court should search the record and grant summary judgment dismissing the claim.(1)
The competing motions will be denied for the reasons that follow. First, a triable issue of material fact is presented as to whether CO Sherrer actually observed the incident, as the IMR states that CO Sherrer observed claimant throw drugs to the floor, which was contradicted by claimant at the hearing. Further, although the evidence demonstrates prima facie that 7 NYCRR 251-3.1 (b) was violated because CO Cable and his partner had personal knowledge of the facts of the incident and did not make a separate IMR or endorse CO Sherrer's IMR, claimant has not addressed or argued whether this regulatory violation resulted in prejudice to him (see Watson v State of New York, 125 AD3d 1064 [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]), and thus, he has not demonstrated that his right to due process was violated. Even assuming that either party was able to demonstrate their entitlement to judgment on the issue of whether 7 NYCRR 251-1.3 (b) was violated with regard to CO Sherrer's IMR, claimant was also confined pursuant to CO Weber's IMR, and the failure of either party to address or argue whether the second IMR violated any DOCCS regulation precludes the granting of summary judgment.
Accordingly, it is
ORDERED, that claimant's motion number M-92963 is DENIED; and it is further
ORDERED, that defendant's cross motion number CM-93054 is DENIED.
April 5, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Notice of Motion for Summary Judgment (M-92963), dated September 3, 2018;
(2) Affidavit of Luis Cintron in Support of Motion for Summary Judgment (M-92963), sworn to
September 5, 2018;
(3) Notice of Cross Motion (CM-93054), dated October 31, 2018;
(4) Affirmation of J. Gardner Ryan, AAG, in Support of Cross Motion for Summary Judgment
(CM-93054), dated October 31, 2018, with Exhibits 1-2.
1. Defendant also argues that claimant's motion is defective because a copy of the pleadings is not submitted with his motion (see Ryan Affirmation, ¶ 11). While a movant's failure to include a copy of the pleadings in the papers supporting a motion for summary judgment generally requires summary denial of the motion without prejudice to renewal of the motion (see Wider v Heller, 24 AD3d 433, 434 [2d Dept 2005]; Welton v Drobnicki, 298 AD2d 757 [3d Dept 2002]; see also Senor v State of New York, 23 AD3d 851, 852 [3d Dept 2005], the omission of a pleading in support of a motion for summary judgment may be overlooked where the record is "sufficiently complete" (see Stiber v Cotrone, 153 AD2d 1006, 1007 [3d Dept 1989] lv denied 75 NY2d 703 ; see also Welch v Hauck, 18 AD3d 1096, 1098 [3d Dept 2005] lv denied 5 NY3d 708 ; Greene v Wood, 6 AD3d 976, 977 [3d Dept 2004]). Claimant's omission has been cured by defendant's submission of the pleadings in support of its cross motion for summary judgment (see Ryan Affirmation, Exhibit 1), and thus, the record is sufficiently complete for consideration of claimant's motion for summary judgment.