Motion for late claim relief denied. Claimant failed to present a reasonable excuse for the delay in filing the claim and conceded that he has another available remedy, and the proposed claim lacks the appearance of merit.
|Claimant short name:||DAVIS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||BRANDON DAVIS, Pro se|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||August 23, 2021|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, moves for permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6). The proposed claim alleges that claimant was wrongfully confined at Green Haven Correctional Facility (CF) from January 13, 2021 to February 2, 2021. Defendant has not responded to the motion.
The proposed claim alleges that on January 13, 2021, claimant was "confined . . . to SHU/keeplock status, based on a [misbehavior] report written by Sgt. Rossy" (Proposed Verified Claim, ¶ 4). In the misbehavior report, dated January 13, 2021, Sgt. Rossy alleged that at 2:55 p.m. that day, she responded to the H-Block at Green Haven CF, where she observed "8 inmates out on 5 company refusing direct orders to lock in their cells" (id., Exhibit A [Misbehavior Report, § 4]). Sgt. Rossy alleged that claimant's "lack of compliance with staff direction prevented [her] from gathering information and managing the scene," and that claimant refused "a direct order to lock in" (id.). Sgt. Rossy further alleged that claimant "became loud and boisterous," and that he was yelling at the other residents of his cell block "not to lock in" and using obscenities (id.). Sgt. Rossy alleged that she "called for a response," and Correction Officer Griffin "ordered [claimant] to lock in and he complied" (id.). Sgt. Rossy alleged that claimant's "actions by refusing staff direction to lock in and by getting other inmates to refuse to lock in, posed a major threat to the safety and security of the facility and Staff," and charged claimant with violating disciplinary rules 104.12 (demonstration), 104.13 (creating a disturbance), 107.10 (interference with employee), 106.10 (refusing a direct order), and 109.12 (movement regulation violation) (id.).
The proposed claim alleges that at the ensuing disciplinary hearing, claimant "denied all allegations against him and sought to call several witnesses to present his defense," and that "some 20 days later, [he] was found not guilty of all charges and released from SHU/keeplock" (Proposed Verified Claim, ¶¶ 6-7). The proposed claim alleges that Hearing Officer (HO) Kopp relied upon the misbehavior report, testimony of multiple witnesses, and a video of the incident in rendering a disciplinary determination (id. at ¶ 7). The tier III hearing disposition reflects that claimant was served with the misbehavior report on January 15, 2021, and the hearing was commenced on January 22, 2021, and concluded on February 2, 2021, with claimant being found not guilty on all five alleged rules violations (see id., Exhibit B). The proposed claim alleges that Sgt. Rossy's report violated the regulation requiring her "to ascertain the facts prior to writing the report" and was "based on hearsay as she never witnessed the incident" and did not "observe claimant committing the alleged offenses in the Misbehavior Report" (id. ¶ 8).
In deciding a motion for late claim relief, the Court is required to consider the following 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 ). The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ), and the weight accorded the various factors is a matter within the discretion of the Court.
In support of his late claim motion, claimant argues that the delay in filing his claim "is excusable because [he] is not a lawyer and had no access to legal counsel" and only "limited access to the law library, research materials and supplies," and he "was only recently able to gain [the] assistance of a law clerk that was willing, able and capable of assisting him in preparing this claim" (Davis Affidavit, ¶ 2). Claimant further avers that he was "in the process of submitting a timely Notice of Intention" when Green Haven CF was placed on lockdown on April 25, 2021, and that by the time the lockdown was lifted on May 4, 2021, his time to file and serve the notice of intention or the claim had expired (id. at ¶ 3; see id. at ¶ 4; Court of Claims Act § 10 [3-b]).(1) Defendant has not responded to the motion and thus has not addressed this factor. However, it is well settled that "neither claimant's professed ignorance of the law nor his confinement in a correctional facility provide an acceptable excuse" for failing to timely file a claim in the Court of Claims (Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; see Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 ; Matter of Powell v State of New York, 187 AD2d 848, 849 [3d Dept 1992]), and, likewise, that a "[c]laimant's asserted inability to secure an attorney is no basis for delay in filing" (Simpson v State of New York, 96 AD2d 646, 646 [3d Dept 1983]). Moreover, although claimant avers that he was unable to timely file his Notice of Intention due to the lockdown at Green Haven CF, he does not explain how the lockdown prevented him from serving a Notice of Intention. Furthermore, his assertion that the lockdown prevented him from serving a timely Notice of Intention accounts only for the period from April 25, 2021 to May 4, 2021, and claimant has failed to present a reasonable excuse for his failure to file and serve a notice of intention or claim between February 2, 2021 and April 25, 2021. Accordingly, this factor weighs against granting late claim relief.
The next three factors - whether the State had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim, and whether claimant's failure to file or serve upon the attorney general a timely claim or notice of intention resulted in substantial prejudice to the State - are closely related, and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). In support of his late claim application, claimant asserts that the State received notice of the essential facts of the claim "when the disciplinary charges were filed . . . and subsequently dismissed, which by nature established and provided the state with ample and adequate time to disseminate the facts" (Davis Affidavit, ¶ 5). Claimant further argues that the State is not substantially prejudiced by the late filing of this claim in light of "the abundance of essential facts that the State possessed and were aware of concerning this action, along with the merits of the attached [proposed] claim, [and] the minimal delay in filing this claim just a short time after the time period expired to file a Notice of Intention" (id. at ¶ 8). As noted above, defendant has not responded to the motion and does not dispute these three factors, which thus weigh in favor of granting the late claim application.
Turning next to the appearance of merit of the proposed claim, this factor is often decisive because, although Court of Claims Act § 10 (6) reflects a legislative determination that "litigants with meritorious claims [should] be afforded their day in court" (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]; see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]), the courts have recognized that a late claim application should not be granted where a claim is "legally deficient . . . [and] would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request" (Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he or she will prevail on the claim. Rather, a proposed claim has the appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not "patently groundless, frivolous, or legally defective," and (2) all of the evidence submitted on the motion establishes "reasonable cause to believe that a valid cause of action exists" (Matter of Santana, 92 Misc 2d at 11).
It is well settled that in order to plead a cause of action for unlawful confinement, a claim must allege that defendant intentionally confined claimant, that claimant was aware of and did not consent to the confinement, and that the confinement was not privileged (see 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 ). The confinement of an inmate is privileged if it was accomplished in accordance with Department of Corrections and Community Supervision (DOCCS) regulations (see Lee v State of New York, 124 AD2d 305, 307 [3d Dept 1986]; Gitten v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]), or where there has not been a violation of an inmate's right to due process (see Arteaga v State of New York, 72 NY2d 212, 221 ).
In the context of the prison disciplinary process, the doctrine of absolute immunity provides that where defendant's "employees act under the authority of and in full compliance with the governing statutes and regulations (Correction Law §§ 112, 137; 7 NYCRR parts 250-254), their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity" (Arteaga, 72 NY2d at 214). Thus, "unless the [correctional] employees exceed the scope of their authority or violate the governing statutes and regulations [relating to the prison disciplinary process], the State has absolute immunity for those actions" (Holloway v State of New York, 285 AD2d 765, 765 [3d Dept 2001]). Not all violations of DOCCS rules governing the disciplinary process will result in the abrogation of the State's absolute immunity, only those that violate an inmate's right to due process (see Arteaga, 72 NY2d at 221).
Claimant argues that "[t]he facts and circumstances involving this claim show that it has merit . . . when Sgt. Rossi [sic] arbitrarily and capriciously filed false charges against claimant and placed him in SHU/keeplock for 20 days, until the charges were dismissed," and that such claims are meritorious "when Correctional (State) employees fail to comply with governing statutes, rules, regulations and directives, especially when placing someone in SHU or keeplock confinement" (Davis Affidavit, ¶¶ 6-7). Again, defendant has failed to respond to the motion and thus does not dispute this factor.
The proposed claim alleges that the misbehavior report was issued in violation of 7 NYCRR 251-3.1 (b), which requires that a "misbehavior report shall be made by the employee who has observed the incident or who has ascertained the facts of the incident," and that here, "Sgt. Rossy failed to ascertain the facts prior to writing the report," which "was written based on hearsay as she never witnessed the incident; nor observed claimant committing the alleged offenses in the Misbehavior Report" (Proposed Verified Claim, ¶ 8). However, New York federal courts have held that an incarcerated person "has no general constitutional right to be free from being falsely accused in a misbehavior report" (Boddie v Schnieder, 105 F3d 857, 862 [2d Cir 1997]), but does have "the right not to be deprived of a protected liberty interest without due process of law" (Freeman v Rideout, 808 F2d 949, 951 [2d Cir 1986], rehearing denied 826 F2d 194 [2d Cir 1987], cert denied 485 US 982 ). Thus, the issuance of a false misbehavior report "by itself, does not create a due process violation because '[t]here must be more, such as retaliation against the [incarcerated person] for exercising a constitutional right' " (Flemings v Kinney, 2004 WL 1672448, *3 [SDNY 2004], quoting Boddie, 105 F3d at 862) or denial of "procedural protections . . . that would have allowed the [incarcerated person] to expose the falsity of the evidence against him" (Faison v Janicki, 2007 WL 529310, *4 [WDNY 2007]). It is well settled that, in the absence of any allegations of a denial of any of claimant's procedural due process protections, an assertion that a misbehavior report has been fabricated "present[s] a credibility issue for the [HO] to resolve" (Matter of Parra v Fischer, 76 AD3d 724, 725 [3d Dept 2010], lv denied 15 NY3d 714 ; see Matter of Jackson v Annucci, 173 AD3d 1581, 1582 [3d Dept 2019] [(p)etitioner's contentions that the misbehavior reports were fabricated and written in retaliation for a prior incident that he was involved in presented credibility issues for the (HO) to resolve"]).
Here, the proposed claim alleges that HO Kopp relied upon the misbehavior report, the testimony of various witnesses, and a video of the incident, and found claimant not guilty of all of the charges asserted in the allegedly false misbehavior report (see Proposed Verified Claim, ¶ 7, Exhibit B [Superintendent Hearing Disposition Rendered]). It is thus apparent that claimant was afforded the opportunity to challenge the allegedly false misbehavior report - and apparently did so successfully - and thus he has failed to demonstrate that appearance of merit of the proposed claim, and this factor weighs against granting late claim relief (see Freeman v Rideout, 808 F2d at 953 [no actionable constitutional cause of action arising from false disciplinary charges against incarcerated person who "was granted a hearing, and was afforded the opportunity to rebut the charges against him"]; see also Arteaga, 72 NY2d at 227-228, Simons, J., dissenting [an incarcerated person"has no constitutional claim for being falsely or wrongly accused of conduct that has resulted in a deprivation of a constitutionally protected liberty interest by being placed in a special housing unit or solitary confinement provided the (incarcerated person) is afforded with the minimum requirements of due process required for prison disciplinary matters"], citing Freeman, 808 F2d 949).
Lastly, claimant argues that the only other remedy available to him "is a Federal Civil rights action, but such action would come with substantial burdens including a much higher pleading requirement," and that he "would find it extremely difficult to pursue such a proceeding and severely prejudice his ability for relief in this matter" (Davis Affidavit, ¶ 9). Inasmuch as claimant has conceded that he has another available remedy, regardless of the burden presented to him, this factor weighs against granting the late claim motion.
Having considered and weighed all of the factors set forth in Court of Claims Act § 10 (6), the Court finds that although three of the six statutory factors weigh in favor of granting the application for late claim relief, claimant has failed to provide a reasonable excuse for the delay in filing the proposed claim, the crucial factor of the appearance of merit weighs against granting late claim relief, and he concedes that he has another available remedy. Thus, the Court concludes that claimant should not be granted permission to file and serve a late claim.
Accordingly, it is
ORDERED, that claimant's motion number M-96932 is DENIED.
August 23, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Notice of Motion For Permission To File A Late Claim, dated June 15, 2021;
2. Affidavit of Brandon Davis in Support of Motion for Permission To File A Late Claim, sworn to June 15, 2021;
3. Proposed Verified Claim, sworn to June 15, 2021, with Exhibits A & B;
4. Affidavit of Service of Brandon Davis, sworn to June 15, 2021.
1. The proposed claim alleges that the claim accrued on February 2, 2021, the date on which claimant was found not guilty following the superintendent's hearing and the date on which he was presumably released from the allegedly wrongful confinement (see Proposed Verified Claim, ¶ 11, Exhibit B, pg. 1). Claimant had 90 days from the date of accrual to file and serve a notice of intention or the claim, which expired on May 3, 2021 (see Court of Claims Act §§ 10 , 10 [3-b]).