Application to file late claim is denied where allegations fail to provide cause to believe a valid cause of action for wrongful confinement may exist.
|Claimant(s):||JOSEPH KEENAN, 17-A-3367|
|Claimant short name:||KEENAN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended to state the proper defendant.|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||JOSEPH KEENAN
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Thomas J. Reilly, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 7, 2020|
|See also (multicaptioned case)|
Claimant moves for permission to file a late claim pursuant to Court of Claims Act 10 (6). Defendant opposes the motion.
The proposed claim alleges that on or about November 14, 2019 the inmate-claimant was charged in an inmate misbehavior report with violating facility rules "113.24-Drug Use and 113.25-Drug Possession." A disciplinary hearing was held on November 20, 2019 in which claimant was found "guilty based on credibility of the 'Nark II substance testing equipment.'"
Claimant served thirty (30) days keeplock, among other penalties.
The proposed claim further alleges that on September 15, 2020 the disciplinary hearing determination of November 20, 2019 was administratively reversed "based on defects in the testing apparatus" which allegedly caused "a tag on [claimant's] boxer shorts" to falsely test "positive for suboxen, a banned substance under rule 113-24."
Claimant essentially alleges that, except for the now discredited false positive drug test, the disciplinary determination lacked substantial evidence that claimant violated rules "113.24-Drug Use and 113.25-Drug Possession."
In determining the application, Court of Claims Act 10 (6) provides that:
"[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."
Recognizing that "it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion" (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]), claimant's application to file a late claim is denied.
Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 833-834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).
To establish that he was wrongfully confined, claimant must prove that "(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 , cert denied sub nom. Schanbarger v Kellogg, 423 US 929; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).
The element most often contested in a prison disciplinary wrongful confinement claim is whether claimant can show that the confinement was not "otherwise privileged."
With respect to whether a confinement is privileged, Holmberg v County of Albany (291 AD2d 610, 612 [3d Dept 2002], lv denied 98 NY2d 604 ), instructs that: "Generally, where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged . . . and everyone connected with the matter is protected from liability for false imprisonment."
In the context of confinement pursuant to a prison disciplinary proceeding, such confinement is "privileged to the extent that it was under color of law or regulation, specifically in accordance with [inmate misbehavior] regulations" (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]).
The proposed claim fails to allege any particular hearing rule or regulation violation committed by defendant in conducting the claimant's disciplinary hearing and consequently fails to allege facts sufficient to state a cause of action for wrongful confinement:
"To the extent that claimant asserts that drug testing directives were violated, they do not relate to the due process concerns of the hearing and do not serve as a basis for the wrongful confinement cause of action" (Miller v State of New York, 156 AD3d 1067, 1068 [3d Dept 2017]).
Defendant is also entitled, under the facts alleged in the proposed claim, to assert as a defense its absolute immunity from liability for claimant's alleged wrongful confinement.
Where employees of the Department of Corrections and Community Supervision, in commencing and conducting inmate disciplinary proceedings, "act under the authority of and in full compliance with the governing statutes and regulations . . . 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 ; Varela v State of New York, 283 AD2d 841 [3d Dept 2001]; Davis v State of New York, 262 AD2d 887 [3d Dept 1999], lv denied 93 NY2d 819 ). The defendant's quasi-judicial disciplinary hearing immunity attaches even if the determination is later reversed administratively or as the result of a successful CPLR Article 78 proceeding (see Arteaga, 72 NY2d at 215).
If, however, prison officials fail to comply with a rule or regulation governing such disciplinary hearings, absolute immunity may be lost and liability for money damages may be imposed if it is proven that the regulatory violation caused actual prejudice or injury to the inmate (see Davidson v State of New York, 66 AD3d 1089, 1089 [3d Dept 2009]; Vasquez v State of New York, 10 AD3d 825 [3d Dept 2004]).
The claim alleges that the cause of claimant's confinement was a false positive drug test rather than a failure by defendant to comply with rules and regulations intended to ensure that claimant be provided a procedurally fair hearing.
Claimant has shown nothing more than that defendant made an error in charging and confining claimant because claimant's confinement was not supported by substantial evidence. The defendant's error was administratively reversed when reviewed by the Facility's Director, Special Housing/Inmate Disciplinary Program.
In affirming a Court of Claims dismissal of a wrongful confinement claim on the ground that defendant was entitled to absolute immunity for the actions of the correctional facility employees with respect to the disciplinary proceedings brought against claimant, the court in Loret v State of New York (106 AD3d 1159, 1159-60 [3d Dept 2013], lv denied 22 NY3d 852 ), held as follows:
"[C]laimant has not articulated any facts to support his claim that the correctional facility employees responsible for his discipline acted in excess of their authority or in violation of any relevant rules or regulations. Indeed, this Court's annulment of the determination of claimant's guilt was based upon a finding that it was not supported by substantial evidence, not upon any finding that the correctional facility employees acted in excess of their authority or departed from any applicable statutory or regulatory direction."
Here, as in Loret, the reversal of claimant's guilty determination at the disciplinary hearing was based upon a lack of substantial evidence of claimant's guilt, not upon violation by defendant of any applicable hearing rule or regulation.
Denial of claimant's application to file a late claim is further compelled by Ramirez v State of New York (175 AD3d 1635, 1637-38 [3d Dept 2019], lv denied 35 NY3d 902 ), in which an inmate wrongful confinement claim based on violation of drug testing directives was dismissed by the Court of Claims:
"[C]laimant argued that defendant is not entitled to absolute immunity because the correction officer violated drug testing directives. We find this argument unavailing. This Court has held that a wrongful confinement action cannot be based on the mishandling of a urine sample because the violation of drug testing directives does not constitute a due process violation."
Even assuming that the other Section 10 (6) factors favored claimant, the proposed claim lacks the appearance of merit and it would be "futile to permit a defective claim to be filed" (Savino, 199 AD2d at 255).
The claimant's application to serve and file a late wrongful confinement claim is denied.
To the extent claimant's exhibits appended his application include a motion to proceed as a poor person, it is denied as moot.
December 7, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Notice of Motion, filed October 23, 2020;
2. Affidavit of Joseph Keenan, sworn to October 15, 2020, and attached exhibits, including verified proposed claim;
3. Affirmation in Opposition to Motion to File a Late Claim of Thomas J. Reilly, dated November 4, 2020.