Defendant's cross motion to dismiss the claim for failure to state a cause of action for unlawful confinement and retaliatory conduct granted and claimant's motion for summary judgment denied as moot.
|Claimant short name:||ROBINSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK, DEPT. OF CORR.|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||JERMAINE ROBINSON, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Elizabeth A. Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 11, 2019|
|See also (multicaptioned case)|
Claimant, an individual incarcerated at a State correctional facility, filed this claim seeking monetary compensation for 38 days of allegedly unlawful confinement following the issuance of an inmate misbehavior report. Claimant moves for summary judgment (Motion No. M-93144). Defendant opposes the motion and cross-moves to dismiss the claim for failure to state a cause of action (Motion No. CM-93204). Claimant has not submitted any papers in response to defendant's cross motion.(1)
Having reviewed and considered both motions, the Court will first address defendant's cross motion to dismiss the claim. On a motion to dismiss for failure to state a cause of action, "the court will 'accept facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory' (Leon v Martinez, 84 NY2d 83, 87-88 )" (Nonnon v City of New York, 9 NY3d 825, 827 ). On such a motion, affidavits submitted by the claimant to remedy any defects in the claim may be considered, and "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Leon v Martinez, 84 NY2d at 88 [internal quotations and citations omitted]). A claim for unlawful confinement must allege "(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 claim alleges that claimant was "unlawfully ordered placed on 'keep-lock' status . . . as a result of a false report of alleged misbehavior and retaliation by N.Y.S. Correction Officer Lamboy" and that "[n]o procedural due process [was] afforded" (Gavin Affirmation, Exhibit A [Claim number 127339, ¶ 2]). Defendant's cross motion to dismiss for failure to state a cause of action relies on the doctrine of absolute immunity, which provides that when corrections employees conduct an inmate disciplinary proceeding in accordance with the governing statutes and regulations (see Correction Law §§ 112, 137; 7 NYCRR parts 250-254), "their actions are discretionary conduct that is quasi-judicial in nature and absolutely immune from liability" (Arteaga v State, 72 NY2d 212, 214 ). Defendant argues that the claim fails to contain "a specific allegation that defendant violated its own rules or regulations," and thus "it cannot be found that defendant has waived its immunity in connection with the misbehavior report at issue" (Gavin Affirmation, ¶ 11). Defendant further asserts that claimant has "failed to articulate how the confinement was not otherwise privileged," and that the allegation that a "false misbehavior report" was issued due to retaliation "does not rise to the level necessary to overcome the state's immunity" (id., ¶ 12). Defendant also contends that a claim for retaliation or harassment is not proper in the Court of Claims, but should be addressed through the inmate grievance process within a subsequent judicial review on a petition to Supreme Court pursuant to CPLR article 78 (id., ¶ 13).
The instant claim, even when reviewed under the liberal standard set forth in Leon v Martinez (84 NY2d at 87-88), fails to state a cause of action for unlawful confinement. The claim asserts that claimant's confinement was unlawful, but it does not state which of the applicable rules or regulations were violated by corrections officials, or the nature of a due process violation that may abrogate defendant's absolute immunity. The claim asserts that claimant was not afforded procedural due process, but such a vague and conclusory allegation without more is insufficient to state a claim for unlawful confinement (see Mondello v Mondello, 161 AD2d 690, 691 [2d Dept 1990]). Even if claimant's unsworn submission on his motion for summary judgment was competent and could be considered to remedy the defects in the pleading, it merely asserts without elaboration that claimant's due process rights were violated (see Robinson Reply Affidavit, ¶ 5), and is bereft of factual allegations addressed to the nature of an alleged due process violation that would render claimant's confinement not privileged. Claimant's assertion that he was confined under a "totally unfounded and otherwise false misbehavior report" (id.), is immaterial here, as an allegation that defendant's agents acted in bad faith does not defeat absolute immunity absent an allegation of a violation of a specific due process safeguard (see Johnson v State of New York, UID No. 2018-015-112 [Ct Cl, Collins, J., Mar. 7, 2018], citing Arteaga).
Finally, there is no cognizable cause of action for retaliation in the Court of Claims (see Brown v State of New York, UID No. 2013-038-111 [Ct Cl, DeBow, J., Nov. 26, 2013]; Brown v State of New York, UID No. 2011-031-509 [Ct Cl, Minarik, J., Sep. 30, 2011]; Campolito v State of New York, UID No. 2000-015-507 [Ct Cl, Collins, J., Apr. 27, 2000]).
Accordingly, because the claim does not state a cause of action for wrongful confinement or retaliation, it is
ORDERED, that defendant's cross motion number CM-93204 is GRANTED, and claim number 127339 is DISMISSED; and it is further
ORDERED, that claimant's motion number M-93144 is DENIED as moot.
April 11, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim Number 127339, filed January 8, 2016;
(2) Notice of Motion for Summary Judgment (M-93144), filed November 23, 2018;
(3) Reply Affidavit of Jermaine Robinson in Response to Defendant's Verified Answer on
Causes of Action and Motion for Grant of Summary Judgment, dated March , 2016, with
(4) Notice of Cross Motion (CM-93204), dated December 10, 2018;
(5) Affirmation of Elizabeth A. Gavin, AAG, in Opposition to Motion for Summary Judgment
and in Support of Cross Motion to Dismiss (CM-93204), dated December 10, 2018, with
(6) Affidavit of Service of Susan Martinelli, sworn to December 10, 2018.
1. Claimant's motion for summary judgment is supported by an unsworn affidavit that is submitted in reply to defendant's verified answer, and it sets forth arguments in opposition to the pleaded affirmative defenses of failure to state a cause of action and immunity (see Robinson Reply Affidavit, ¶¶ 5-8).