New York State Court of Claims

New York State Court of Claims
BICKEL v. THE STATE OF NEW YORK, # 2020-053-544, Claim No. 134293, Motion Nos. M-95512, M-95742

Synopsis

Claimant's motion for permission to late file a notice of intention to file a claim a claim alleging wrongful confinement due to a false positive urinalysis test is denied. The State's motion to dismiss is granted as the claim is time barred and also fails to state a cause of action. 

Case information

UID: 2020-053-544
Claimant(s): PHILLIP BICKEL
Claimant short name: BICKEL
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) : The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 134293
Motion number(s): M-95512, M-95742
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: PHILLIP BICKEL, Pro Se
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Tamara Christie, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 19, 2020
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Pro se claimant Phillip Bickel alleges in claim no. 134293 that he was wrongfully confined in the Special Housing Unit (SHU) while incarcerated at Orleans Correctional Facility (Orleans) due to a false positive drug test. There are two pending motions relating to this claim. The first motion filed was claimant's motion no. M-95512 for permission to late file a notice of intention to file a claim. The defendant State of New York opposed this motion. The second motion filed was defendant's motion no. M-95742 to dismiss claim no. 134293. Claimant failed to oppose this motion. Each motion shall be addressed separately.

Factual Background

In July 2019, claimant was incarcerated at Orleans. On or about July 18, 2018, claimant underwent a urinalysis test to detect the presence of any illegal substance. This test was positive for the presence of Buprenorphine. The following day, this urine sample was retested. This second test was also positive for the presence of Buprenorphine. As a result, claimant was issued a Misbehavior Report (see Exhibit A to claim no. 134293; Defendant's Exhibit A). A Tier III Superintendent's Hearing was conducted on July 24, 2019. On page 3 of the Superintendent Hearing Disposition, it was noted that the evidence relied upon included the misbehavior report indicating that the testing and retesting of claimant's urine indicated a positive presence of Buprenophine and also included claimant's verbal testimony admitting guilt and pleading guilty to the charge 113.24, Drug Use. Claimant was then found guilty of the charge of drug use and given a sentence of 120 days in the Special Housing Unit (SHU) and the loss of privileges (see Exhibit B to claim no. 134293; Defendant's Exhibit A).

On September 16, 2019, claimant received a response from the Deputy Commissioner of Special Housing for the Department of Corrections and Community Supervision (DOCCS) in which he was advised that the Superintendent's hearing had been reviewed and reversed. Claimant was released from SHU confinement on September 16, 2019 (see 8 of claim no. 134293; Defendant's Exhibit A).

On October 26, 2019, claimant was verbally notified by an "ORC Counselor" that the false positive drug tests would be reversed and expunged from his records (see 4 of Claimant's supporting affidavit sworn to March 11, 2020). By memorandum dated November 27, 2019, Acting Commissioner Anthony Annucci advised the Incarcerated Population that DOCCS was treating all Buprenorphine positive test results as false positive test results and were releasing individuals from disciplinary confinement and expunging the records of those whose confinement was solely based on the Buprenorphine testing (see Exhibit C to claim no. 134293; Defendant's Exhibit A). Claimant alleges that he discovered this memo in the Law Library at Collins Correctional Facility (Collins) sometime after January 13, 2020, when he filed claim no. 124293 (see 5 of Claimant's supporting affidavit sworn to March 11, 2020).

Claimant's Motion No. M-95512 for Permission to Late File a Notice of Intention

Pro se claimant moves this Court for permission to late file and serve a notice of intention to file a claim.(2) Court of Claims Act 10 (6) provides the procedure for seeking leave to file and serve a late claim. It does not, however, provide for the late filing of a notice of intention (Holmes v State of N.Y., Roswell Park Cancer Inst. Corp., 5 Misc 3d 446 [2004]). The Court will treat claimant's motion as one seeking leave to late file a claim pursuant to Court of Claims Act 10 (6) and will consider claimant's proposed notice of intention as the proposed claim which must accompany such a motion.(3)

A motion for permission to file and serve a late claim must be brought "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" (Court of Claims Act 10 [6]). A claim based on an intentional tort brought against a private citizen would have to be commenced within one year of accrual of the claim (CPLR 215 ). In his proposed claim, claimant alleges that he was wrongfully confined to the SHU on the basis of a false positive urinalysis test. A prison inmate's claim for wrongful confinement accrues and the limitations period begins to run when the inmate is released from confinement (Campos v State, 139 AD3d 1276 [3d Dept 2016]). Nowhere in claimant's proposed claim does he allege when he was released from SHU. In a footnote on page 2 of claimant's supporting affidavit sworn to March 11, 2020, claimant alleges that he was released from SHU confinement on September 16, 2019. This is the same date used for his release from SHU in claim no. 134293. As claimant's motion no. M-95512 was filed on March 19, 2020, within one year of his release from SHU, claimant's motion for leave to file a late claim for wrongful confinement is timely.

In determining whether to grant permission to late file a claim, the Court must 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" (Court of Claims Act 10 [6]).

The first factor to be considered by the Court is whether the delay in filing the claim was excusable. On page 4 of claimant's supporting affidavit, he seems to be alleging that the State failed to give him timely notice, presumably of the false positive results from the testing for Buprenorphine as the reason for his failing to timely file and serve a claim. Pursuant to Court of Claims Act 10 (3-b), a claim to recover damages for injuries caused by an intentional tort such as wrongful confinement shall be filed and served within 90 days after accrual of such a claim. As claimant's claim for wrongful confinement did not accrue until September 16, 2019, when he was released from SHU confinement, it is difficult to understand how he was prevented from filing a timely claim when he knew upon his release from SHU that the Superintendent's Hearing had been reversed and when he was verbally advised of the false positive drug tests on October 26, 2019, well within his 90 day time to file and serve a claim. The lack of an excusable delay is, however, only one of the factors to be considered.

The next three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc2d 337 [1998]). Neither claimant nor defendant discuss these factors. It is clear from the papers submitted, however, that the State had notice of the false positive results from its drug testing as early as September 16, 2019, when claimant was released from SHU confinement or by October 26, 2019, at the latest, when claimant was verbally advised of the false positive drug testing results. As the State had notice and an opportunity to investigate within the 90 day period within which claimant had to file a timely claim, the State would not be prejudiced by the delay in late filing a claim. These factors weigh in favor of claimant's motion.

The most important factor to consider is merit as it would be futile to permit a claim to be filed which was subject to dismissal (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). It is the movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is a reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc2d 1 [1977]). While this standard places a heavier burden upon a party who has filed late, this standard does not require movant to establish the merit of his claim or to overcome all legal objections before the Court will permit the filing of a late claim (Id. at 11-12.).

In order to establish a claim of wrongful confinement, the 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 [1975], cert denied sub nom Schanbarger v Kellogg, 423 US 929 [1975]). At issue here is whether claimant's confinement was privileged.

In the prison context, defendant's actions in commencing and conducting inmate disciplinary hearings are "quasi-judicial in nature for which the State has absolute immunity" (Arteaga v State of New York, 72 NY2d 212, 214 [1988]). Notwithstanding a subsequent reversal of the underlying disciplinary findings, defendant retains its immunity as long as the disciplinary proceedings were conducted in accordance with the rules and regulations of the Department of Corrections and Community Supervision (DOCCS) (Id. at 220-221; Lee v State of New York, 124 AD2d 305 [3d Dept 1986]).

Even when a prison official violates the governing statutes and regulations during a prison disciplinary hearing, such a violation would only form the basis of a wrongful confinement claim where the violation implicates due process safeguards (Id. at 215; Miller v State of New York, 156 AD3d 1067 [3d Dept 2017]). Here, claimant does not allege a violation of any governing statute or regulation of DOCCS relating to the prison disciplinary process. Thus, as the proposed claim fails to allege facts showing that the SHU confinement resulting from the inmate disciplinary hearing was not "otherwise privileged," claimant's proposed claim has failed to state a wrongful confinement cause of action (Walker v State of New York, UID No. 2020-041-028 [Ct Cl, Milano, J., Sept 3, 2020]).

Rather than alleging a violation of a regulation relating directly to the disciplinary process, Claimant generally alleges in his proposed claim that the State was negligent by using an invalid and fraudulent urine drug test that resulted in a false positive test. DOCCS' regulation 7 NYCRR 1020.4 governs urinalysis drug testing of inmates. Claimant has failed to allege that any regulation governing drug testing was violated. Moreover, had claimant alleged the violation of a particular drug testing directive, such directives "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]; Haddock v State of New York, UID No. 2018-054-015 [Ct Cl, Rivera, J., March 27, 2018]). Thus, a wrongful confinement cause of action may not be based on an alleged violation of a drug testing regulation as such a violation does not constitute a due process violation (Ramirez v State of New York, 175 AD3d 1635 [3d Dept 2019], lv denied 35 NY3d 902 [2020]; Moreland v State of New York, UID No. UID 2020-038-538 [Ct Cl, DeBow, June 25, 2020], Francischelli v State of New York, UID No. 2020-038-544 [Ct Cl, DeBow, J., July 10, 2020]; Martinez v State of New York, UID No. 2020-015-037 [Ct Cl, Collins, J., Apr. 22, 2020]). As the proposed claim fails to allege that any due process safeguards were violated, claimant's proposed claim does not have the appearance of merit.

The last factor to consider is whether claimant has an alternate remedy. Here, claimant may be able to commence an action against the manufacturer of the drug testing equipment.

After weighing the statutory factors set forth in Court of Claims Act 10 (6), motion no. M-95512 for permission to file and serve a late claim is denied.

Defendant's Motion No. M-95742 to Dismiss Claim No.: 134293

Claimant Phillip Bickel alleges in claim no. 134293 that he was wrongfully confined in the Special Housing Unit (SHU) while incarcerated at Orleans Correctional Facility (Orleans) due to a faulty drug test for the presence of Buprenorphine. Defendant moves to dismiss the claim for untimeliness and for failure to state a cause of action. Claimant did not respond to or otherwise oppose defendant's motion to dismiss.

The Court of Claims is a court of limited jurisdiction with the power to hear claims against the State of New York for the actions of its officers or employees (see NY Const Art VI; Court of Claims Act 9). In claim no. 134293, claimant named the State of New York, DOCCS and Acting Commissioner Anthony Annucci as named defendants within the State government (Correction Law 5[1]). It is not a separate entity. The State is the real party in interest with respect to a claim against DOCCS. In addition, this Court does not have the authority to hear claims against individual defendants (Smith v State of New York, 72 AD2d 937 [4th Dept 1979]). Accordingly, the caption of claim no. 134293 was amended to reflect the State of New York as the only proper defendant.

Court of Claims Act 10 provides that a claim for damages must be filed and served upon the Attorney General within ninety (90) days of accrual of the claim unless within the same ninety (90) day period, the claimant serves upon the Attorney General a notice of intention to file a claim, in which event the claim must be filed and served within one (1) year of accrual of an intentional tort or within two (2) years of accrual of a negligent or unintentional tort. A claim may be served upon the Attorney General personally or by certified mail, return receipt requested. Service by certified mail upon the Attorney General is not complete until the claim is received in the office of the Attorney General (see Court of Claims Act 11 [a] [i]).

The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to comply with the filing and service requirements of the Court of Claims Act deprives the Court of jurisdiction, requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], lv denied 64 NY2d 607 [1985]). Defendant argues that no notice of intention was served and that the claim was served more than ninety (90) days after accrual of the claim.

Claimant's cause of action for wrongful confinement accrued on September 16, 2019, when claimant was released from SHU confinement where he had been placed as a result of his testing positive for the presence of Buprenorphine and his guilty plea to drug use. Claimant then had ninety (90) days or until December 16, 2019(4) within which to serve a notice of intention to file a claim or to serve and file a claim. No notice of intention was served upon the Attorney General (see 17 of Claim no. 134293, Defendant's Exhibit A). Claim no. 134293 was filed and served upon the Attorney General on January 13, 2020, more than 90 days after accrual of the claim (see copy of the envelope in which the claim was served, Defendant's Exhibit A). Claimant's failure to file and serve a claim or to serve a notice of intention within the statutorily prescribed 90 day time period is a jurisdictional defect which compels the dismissal of the claim (Torres v State of New York, 107 AD3d 1471 [4th Dept 2013]; Ivy v State of New York, supra at 1191).

In addition to being time barred, defendant alleges that claim no. 134293 fails to state a cause of action. Here, claimant does not allege that any due process safeguards were violated by the disciplinary proceedings at Orleans. Thus, the wrongful confinement cause of action must be dismissed as the claim fails to allege facts showing that the confinement resulting from the disciplinary hearing was not "otherwise privileged" (Arteaga v State of New York, supra at 215; Miller v State of New York, supra at 1067; Walker v State of New York, UID No. 2020-041-028 [Ct Cl, Milano, J., Sept 3, 2020]).

Claimant also alleges in claim no. 134293 that his SHU confinement amounted to cruel and unusual punishment. Insofar as the claim alleges a violation of claimant's federal constitutional rights, it must be dismissed as the Court of Claims does not have jurisdiction over alleged violations of rights under the Unites States Constitution (see Brown v State of New York, 89 NY2d 172 [1996]). Insofar as the claim alleges a State constitutional claim, it too must be dismissed as a state constitutional tort cause of action may be brought only when there is no other remedy available to provide "an avenue of redress" (Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]). Here, the recognition of a State constitutional cause of action is neither necessary nor appropriate as claimant could have raised any due process concerns in Federal Court, in a properly pled wrongful confinement cause of action, or in a separate action against the manufacturer of the drug test utilized. Claimant's claim for a violation of his rights under the Constitution of the United States or of the State of New York must be dismissed.

Finally, claimant alleges in claim no. 134293 that Acting Commissioner Anthony Annucci was somehow negligent in the care and custody of inmates. As previously noted, any claim against Commissioner Annucci individually has been dismissed as the Court of Claims does not have jurisdiction over individuals. Moreover, if claimant is attempting to allege a negligence cause of action as against the State, he is relegated to his intentional tort remedy of wrongful confinement as any negligence claim which is based on the same facts must be dismissed as a negligence claim may not supplant traditional tort remedies (Nazario v State of New York, 75 AD3d 715 [3d Dept 2010], lv denied 15 NY3d 712 [2010]; Simon v State of New York, 12 AD3d 171 [1st Dept 2004]; Francischelli v State of New York, UID No. 2020-038-544 [Ct Cl, DeBow, J., July 10, 2020]).

Based on the foregoing, defendant's motion no. M-95742 to dismiss is granted and claim no. 134293 is dismissed.

Conclusion

In conclusion, claimant's motion no. M-95512 for permission to late file a claim pursuant to Court of Claims Act 10 (6) is denied and defendant's motion no. M-95742 to dismiss is granted and claim no. 134293 is dismissed.

November 19, 2020

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims

The following were read and considered with respect to claimant's motion no. M-95512 for permission to late file a claim:

1. Claimant's notice of motion and affidavit of Phillip Bickel sworn to March 11, 2020, with annexed Exhibits A-B;

2. Opposing affirmation of Assistant Attorney General Tamara B. Christie dated August 4, 2020.

The following were read and considered with respect to defendant's Motion no. M-95742 to dismiss claim no. 134293:

1. Defendant's notice of motion and affirmation of Assistant Attorney General Tamara B. Christie dated August 4, 2020, with annexed Exhibits A-B.


2. Unlike claim no. 134293, claimant's proposed notice of intention names only the State of New York as a defendant.

3. Henceforth, claimant's proposed notice of intention to file a claim which is annexed to his motion no. M-95512 will be referred to as the proposed claim.

4. The ninetieth day after accrual actually fell on Sunday, December 15, 2019. Thus, claimant had until Monday, December 16, 2019 within which to serve a notice of intention or to file and serve his claim.