Following Trial, pro se Claimant's Claim for wrongful confinement dismissed.
|Claimant short name:||OLDHAM|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Darrel Oldham, Pro Se|
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Christina Calabrese, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||November 4, 2019|
|See also (multicaptioned case)|
Claimant, pro se, Darrel Oldham, failed to establish by a preponderance of the credible evidence that Defendant was liable in connection with his Claim. The trial of this Claim was held by video conference on August 14, 2019, with the parties at Clinton Correctional Facility, and the Judge at the Court of Claims in Albany, New York.
At trial, the Court had marked as Court Exhibits 1 and 2, respectively, Claimant's filed Claim, and the State's Answer. Claimant submitted into evidence 14 documents (Exs. 1 through 14). The State submitted into evidence four documents (Exs. A-D). Claimant testified on his own behalf and the State called one witness, Correction Sergeant (hereinafter, "Sgt.") K. Compo.
Claimant testified that, on May 25, 2014, while confined to Franklin Correctional Facility (hereinafter, "Franklin") he was sleeping in his dormitory cube when he was awakened by an incident. He stated that he was removed from the dorm in handcuffs and taken to the Special Housing Unit (hereinafter, "SHU"). He stated that, on May 27, 2014, he was issued a misbehavior report, charging him with violating three specific prison rules on May 25, 2014 that was signed by a correction officer (Ex. 3). A disciplinary hearing was commenced on May 29, 2014 and Claimant requested that a witness appear and testify, and the Hearing Officer stated that the inmate witness refused to testify without a reason being offered for the refusal (Ex. 1, pp. 4, 6). Claimant was found guilty of two of the charges at a Tier II disciplinary hearing (Exs. 4, 5). Claimant asserts that he was denied due process at the Tier II hearing because of the failure to present the witness or explain why the witness was refused. Claimant filed an administrative appeal (Ex. 6) and, on June 14, 2014, was advised that the hearing officer's determination had been modified by reducing the length of the penalties imposed (Ex. 7). Claimant also testified that he filed an Article 78 petition on July 8, 2014, challenging the determination (Ex. 8) and that, on September 16, 2014, he received a memorandum from the Franklin superintendent informing him that the May 25, 2014 incident was expunged and removed from his disciplinary file (Ex. 14).
Sgt. Compo testified that he has been employed by the Department of Corrections and Community Supervision for 18 years and has been assigned to Franklin as a sergeant for the last six years. The witness testified that he investigated the incident involving Claimant which is the subject of this Claim and that Mr. Oldham advised him that Claimant had a verbal altercation with Inmate Rivera that turned into a physical altercation (see Ex. B).
The Court will first address Defendant's Motion (Motion No. M-94341), which was returnable on September 11, 2019, to dismiss the Claim on the basis that the Notice of Intention was untimely served upon Defendant in violation of Court of Claims Act §§ 10 and 11, and, thus, did not extend Claimant's time to serve and file the Claim, resulting in the Claim being untimely served and filed pursuant to Court of Claims Act § 10.
Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General. It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 11 gives rise to a jurisdictional defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 ; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 ; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).
Defendant asserts that Claimant's wrongful confinement cause of action accrued on June 9, 2014 when he was released from restrictive confinement. The Notice of Intention was served upon Defendant on Monday, September 8, 2014 (Affidavit of Christina Calabrese, Esq., Assistant Attorney General, ¶¶ 11, 13, and Ex. A attached), which was the 91st day after accrual. As the ninetieth day following accrual was Sunday, September 7, 2014, Claimant's time was extended to Monday, September 8, 2014 (see General Construction Law § 25-a). Therefore, the Court finds and concludes that the Notice of Intention was timely served upon Defendant and, thus, the Claim was timely served and filed. Defendant's Motion to dismiss on the basis that the Notice of Intention was untimely served upon Defendant in violation of Court of Claims Act §§ 10 and 11, and, thus, did not extend Claimant's time to serve and file the Claim, resulting in the Claim being untimely served and filed pursuant to Court of Claims Act § 10, is, therefore, denied.
"It is well settled that, where, as here, the actions of correction personnel have violated the due process safeguards contained in 7 NYCRR parts 252 through 254, those actions '[will] not receive immunity' " (Moustakos v State of New York, 133 AD3d 1268, 1269 [4th Dept 2015], quoting Arteaga v State of New York, 72 NY2d 212, 221 ). "Those due process safeguards include the right to call witnesses at a disciplinary hearing unless the witnesses' testimony is immaterial or redundant, or puts institutional safety or correctional goals in jeopardy" (Bottom v State of New York, 142 AD3d 1314, 1315 [4th Dept 2016]; see Matter of Hill v Selsky, 19 AD3d 64, 65-66 [3d Dept 2005]). However, the absence of an immunity defense does not establish that Claimant has proven liability on his wrongful confinement cause of action. The "removal of immunity … does not result in absolute liability to [D]efendant because [C]laimant is still required to prove the merits of his [C]laim" (Turley v State of New York, UID No. 2010-032-504 [Ct Cl, Hard, J., June 4, 2010]; see Steele v State of New York, UID No. 2013-029-026 [Ct Cl, Mignano, J., July 17, 2013]; Moreno v State of New York, UID No. 2001-007-551 [Ct Cl, Bell, J., Apr. 5, 2001]). " 'Where, as here, a prison inmate contends that he was wrongfully confined as a result of the flawed prison disciplinary proceeding, once the absolute immunity is removed by showing that the governing rules and regulations were not followed, he [or she] may recover damages if he [or she] is able to prove the traditional elements of the tort of [unlawful confinement]: (1) that the confinement was intentional; (2) that Claimant was conscious of the confinement; (3) that Claimant did not consent to the confinement; and (4) that the confinement was not otherwise privileged' " (Moustakos v State of New York, supra, quoting Kilpatrick v State of New York, UID No. 2001-013-031 [Ct Cl, Patti, J., Dec. 2001], citing Broughton v State of New York, 37 NY2d 451, 456 ; cf. Lamage v State of New York, 31 Misc 3d 1205[A] [Ct Cl 2010]). " 'In other words, not every violation of the rules and regulations governing the imposition of prison discipline will result in liability on the part of the State; the rule violations merely remove the cloak of absolute immunity and make the State potentially liable, if liability would be imposed under common law tort principles' " (Moustakos v State of New York, supra, quoting Kilpatrick v State of New York, supra).
Here, there is no dispute concerning the first three elements of the unlawful confinement cause of action. The dispositive issue is whether Claimant established as a matter of law that the confinement was not otherwise privileged. In order to make a prima facie case, Claimant was required to present evidence that the testimony of Mr. Rivera that was not heard at the disciplinary hearing would have changed the hearing's outcome (see Miller v State of New York, 156 AD3d 1067, 1068 [3d Dept 2017]; Bottom v State of New York, supra at 1315; Moustakos v State of New York, supra at 1270). "If [Claimant] … would have been found guilty even if all the rules and regulations had been followed, then his confinement would not be wrongful, regardless of the irregularity of the hearing he received" (Turley v State of New York, supra).
The Court has considered the evidence, including listening to the witnesses' testimony and observing their demeanor as they did so. Claimant asserts that the State did not follow the rules and regulations by not providing the witness he wanted to testify or providing the reason he did not testify. The Court finds that Claimant failed to establish by a preponderance of the credible evidence that his confinement was not otherwise privileged as he failed to establish the reason the disciplinary hearing determination was expunged. Further, he failed to establish that the testimony of Mr. Rivera, that was not heard at the disciplinary hearing, would have changed the hearing's outcome.
Therefore, based upon the foregoing, the Court concludes that Claimant failed to establish, by a preponderance of the credible evidence, his Claim that he was wrongfully confined, and the Claim is hereby dismissed.
All motions made at trial upon which the Court reserved decision are hereby denied.
The Chief Clerk is directed to enter judgment accordingly.
November 4, 2019
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims