Claimant's motion for summary judgment denied. Claimant's own submissions raised genuine issues of material fact with respect to an allegedly wrongful confinement between November 30 and December 13, 2016, and claimant failed to identify any DOCCS regulations that were violated with respect to an allegedly wrongful keeplock confinement from December 19 to December 21, 2016.
|Claimant(s):||JOSEPH GARCIA #10A0532|
|Claimant short name:||GARCIA|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||JOSEPH GARCIA, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Suzette Corinne Merritt, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 30, 2021|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim alleging that he was wrongfully confined at Green Haven Correctional Facility (CF) on two occasions in November and December 2016. Claimant now moves for summary judgment on the claim. Defendant opposes the motion.
The claim alleges that on November 30, 2016, Correction Officer (CO) Hull placed claimant in keeplock confinement in his cell at Green Haven CF "without issuing a misbehavior report against [claimant] before going off duty," in violation of Department of Corrections and Community Supervision (DOCCS) rules and regulations (Claim No. 130705, ¶ 4). The claim alleges that claimant learned when he "put down for a law library call out" on November 30, 2016 that he had been keeplocked (id.). The claim alleges that on December 2, 2016, claimant was served with a copy of a misbehavior report written by CO Hull and dated December 1, 2016, which charged him with violating disciplinary rules 106.10 (direct order), 107.10 (interference), 112.21 (count procedures), and 112.20 (count delay) (see id. at ¶ 5). The claim alleges that a disciplinary hearing was commenced on December 7, 2016, before Hearing Officer (HO) Hann, that claimant pleaded not guilty to all rule violations and raised issues related to his due process rights, specifically, that he had been placed in keeplock confinement before a misbehavior reported had been issued, and that the disciplinary hearing was commenced more than seven days after the initial confinement (see id. at ¶ 6). The claim alleges that on December 13, 2016, claimant was released from keeplock confinement after HO Hann dismissed the misbehavior report on the ground that CO Hull had placed claimant under keeplock confinement on November 30, 2016, without issuing a misbehavior report before going off duty (see id. at ¶ 7).
The claim further alleges that on December 19, 2016, claimant was asleep in his cell when a fire broke out in one of the cells on the cell block where he was housed, and that "[t]he gallery officer cleared all [the] cells," including claimant's cell, because "the entire gallery was filled with smoke" (id. at ¶ 9). The claim alleges that the "J-Block Sergeant" placed claimant under keeplock confinement "until an investigation was completed" even though claimant had not been out of his cell before the fire started and the fire occurred six cells down from claimant's cell (id. at ¶ 10). The claim alleges that claimant was released from keeplock confinement on December 21, 2016, "because [he] did not violate [any disciplinary] rules" (id. at ¶ 11). The claim demands $700 in damages for the 14 days of alleged unlawful keeplock confinement between November 30, 2016, and December 13, 2016, and $150 in damages for the three days of allegedly unlawful keeplock confinement between December 19 and December 21, 2016 (see id. at ¶¶ 12-14).
Claimant now moves for summary judgment on the claim, reasserting the allegations raised therein (see Garcia Affidavit, ¶¶ 3-13), and arguing that he has established a prima facie case of wrongful confinement for the 14 days from November 30 to December 13, 2016, and the three days from December 19 to December 21, 2016, because the State "is liable for [the] violation of its own rules and regulations," including Directive No. 4932, 7 NYCRR 251-1.6 (e) (1), 251-5.1 (a), and 251-3.1 (a), (b), (c), (1), (2), (3), by its employees and agents (see id. at ¶ 16). Claimant has submitted the misbehavior report and disciplinary determination in support of the instant motion. The misbehavior report was authored by CO Hull, who asserted that on December 1, 2016, he was "making the 6 AM master count round" when he "observed [claimant] in his cell unidentifiable and completely covered from head to toe under a blanket" (id., Exhibit 1 [Misbehavior Report]). CO Hull alleged that "[t]he way [claimant] sat on the bed made it unable [sic] to tell if under the blanket was a person or an object made to appear as if it was a body" (id.). CO Hull alleged that he ordered claimant "to verbally respond and he would not answer," that he "gave [claimant] several more orders to verbally respond and make himself visable [sic] and he refused," and that he "used [his] baton to bang on the cell door and [claimant] flinched but still would not uncover or speak" (id.). CO Hull stated that "[d]ue to [claimant's] actions a ticket was issued [and] the area supervisor was notified with no further incident" (id.). The misbehavior report is dated December 1, 2016, and reflects that it was served on claimant on December 2, 2016, at 11:09 a.m. (see id.). The disciplinary determination demonstrates that the disciplinary hearing commenced on December 7, 2016, and concluded on December 13, 2016, and that claimant was found not guilty of all of the rule violations alleged in the misbehavior report (see id., Exhibit 2 [Disciplinary Hearing Disposition Rendered]).
In opposition to the motion, defendant argues that claimant has failed to make out a prima facie claim for wrongful confinement because "[t]here has been no proof submitted regarding the confinement, therefore there remain issues of fact pertaining to those elements of Claimant's cause of action against the State" (Merritt Affirmation in Opposition, ¶ 4; see id. at ¶ 9). With respect to the 14 days of confinement between November 30, 2016, and December 13, 2016, defendant argues that "claimant's prehearing confinement was authorized and privileged" under 7 NYCRR 251-1.6 (a), which permits a correction officer to impose keeplock confinement based on the belief that an incarcerated person has violated a facility rule, and here, claimant was charged with disciplinary rule violations in the misbehavior report (id. at ¶ 8).(1)
Claimant argues in an unsworn reply "affidavit" - which thus lacks evidentiary value - that he has met his prima facie burden on this motion and there are no genuine issues of material fact with respect to the allegedly wrongful confinement from November 30 to December 13, 2016, inasmuch as he has alleged that the keeplock confinement was imposed in violation of 7 NYCRR 251-1.6 (e) (1), (2), which requires that when a correction officer places an incarcerated person in keeplock confinement, the correction officer must report that action in writing before going off duty, and because the charges in the misbehavior report were dismissed because claimant did not commit any of the disciplinary rule violations alleged in the misbehavior report (see Garcia Reply Affidavit, ¶¶ 2-5). Claimant further argues that he is entitled to summary judgment on the claim because defendant has not disputed that claimant was unlawfully confined on November 30, 2016, before a misbehavior report was issued, and that he was released from that confinement on December 13, 2016 (see id. at ¶ 6).
It is well settled that a "party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence to demonstrate the absence of any material issue of fact" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 ; see Arias v State of New York, 195 Misc 2d 64, 65 [Ct Cl 2003]). The evidence must be submitted in admissible form and must establish the movant's right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 ). If the movant establishes prima facie entitlement to summary judgment, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 ). However, when a movant fails to demonstrate its entitlement to summary judgment as a matter of law in the first instance, the burden does not shift to the opponent, and the motion must be denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ; Tiano v Lane, 260 AD2d 908 [3d Dept 1999]). "Where there is doubt as to the existence of a trial issue or where the issue is arguable, summary judgment should not be granted" (Bingell v County of Schuyler, 260 AD2d 926 [#d Dept 1999]).
A motion for summary judgment on a cause of action for wrongful confinement must establish prima facie the elements of the cause of action, namely, "that the defendant intended to confine the [claimant], that the [claimant] was conscious of the confinement and did not consent to the confinement, and that the confinement was not otherwise privileged" (Martinez v City of Schenectady, 97 NY2d 78, 85 ; see Broughton v State of New York, 37 NY2d 451, 456 , cert denied sub nom Schanbarger v Kellogg, 423 US 929 ). A confinement is privileged if it was accomplished in accordance with DOCCS regulations (see see Lee v State of New York, 124 AD2d 305, 307 [3d Dept 1986]; Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]). However, in the context of the prison disciplinary process, where defendant's "employees act under the authority or 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 v State of New York, 72 NY2d 212, 214 ). "[A]ctions of correction personnel in physically abusing inmates . . . or in confining them without granting a hearing or other required due process safeguard (see 7 NYCRR 251-5.1; parts 252-254) would not receive immunity" (id. at 221).
Pursuant to DOCCS regulations, "[a]n employee who places an [incarcerated person] in confinement in his cell or room . . . shall report such fact, in writing, to the superintendent as soon as possible, but in any event before going off duty," and that "[r]eports of confinement shall be made even where confinement was authorized or directed by a superior officer" (7 NYCRR 251-1.6 [e] , ). The regulations further provide that "[e]very incident of . . . misbehavior [by an incarcerated person] involving danger to life, health, security or property must be reported, in writing, as soon as practicable" and that "[t]he misbehavior report shall be made by the employee who has observed the incident or who has ascertained the facts of the incident," and they require that the report include certain information regarding the incident and the ensuing disciplinary proceeding (7 NYCRR 251-3.1 [a] - [d]). The regulations require that a disciplinary hearing "must be commenced as soon as is reasonably practicable following the [incarcerated person's] initial confinement pending said disciplinary hearing . . . but, in no event may it be commenced beyond seven days of said confinement without authorization of the commission or his designee" (7 NYCRR 251-5.1 [a]), and that a disciplinary hearing "must be completed within 14 days following the writing of the misbehavior report unless otherwise authorized by the commissioner or his designee" (7 NYCRR 251-5.1 [b]).(2)
Turning first to the claim insofar as it alleges 14 days of wrongful confinement between November 30 and December 13, 2016, claimant alleges that the regulations discussed above were violated because CO Hull issued the misbehavior report the day after placing claimant under keeplock confinement and because the disciplinary hearing was not commenced within seven days of the issuance of the misbehavior report. With respect to the allegations regarding the untimely issuance of the misbehavior report, claimant's own submissions raise a genuine issue of material fact inasmuch as the claim alleges that he was placed on keeplock confinement on November 30, 2016, and that CO Hull failed to issue the misbehavior report before going off duty that day, whereas the misbehavior report indicates that the alleged rules violations occurred on December 1, 2016, when claimant repeatedly failed to comply with CO Hull's direct orders to make himself visible in his cell, and that the misbehavior report, authored by CO Hull, was issued the same day. As to the allegations that the disciplinary hearing was not timely commenced, claimant's own submissions again raise a genuine issue of material fact. The disciplinary disposition reflects that the disciplinary hearing was commenced on December 7, 2016, which would have been within seven days of claimant's initial confinement if that confinement had commenced on December 1, 2016, the date that the alleged incident occurred, but would have been one day past the seven-day statutory period if the confinement commenced on November 30, 2016, as the claim alleges.(3) Inasmuch as claimant's own submissions raise issues of material fact as to the timeliness of the issuance of the misbehavior report and the commencement of the disciplinary hearing, claimant is not entitled to summary judgment on his claim for 14 days of wrongful confinement between November 30 and December 13, 2016.
With regard to the allegation that claimant was wrongfully confined for three days from December 19 to December 21, 2016, following a fire in a cell on his cell block, claimant does not identify which DOCCS regulations defendant's employees allegedly violated when they placed him in keeplock confinement, nor has he provided any evidence in admissible form with respect to that allegation. In the absence of any allegation that defendant's employees and agents violated DOCCS regulations in connection with that confinement, claimant has failed to meet his prima facie burden with respect to the claim for three days of wrongful confinement, and he is not entitled to summary judgment.
Accordingly, it is
ORDERED, that claimant's motion number M-96973 is hereby DENIED.
August 30, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 130705, filed December 12, 2017;
2. Verified Answer, filed November 1, 2019;
3. Notice of Motion for Summary Judgment, dated July 8, 2021;
4. Affidavit and Memorandum of Law in Support for Summary Judgment, sworn to July 8, 2021, with unenumerated attachments and Exhibits 1 & 2;
5. Affirmation of Suzette Corinne Merritt, AAG, in Opposition to Claimant's Motion for Summary Judgment, dated July 20, 2021;
6. "Affidavit" of Joseph Garcia in Reply to Opposition for Summary Judgment, dated July 28, 2021.
1. As correctly noted by claimant in his reply submission (see Garcia Affidavit in Reply, ¶ 1), it appears that defendant has opposed claimant's motion for summary judgment only insofar as it alleges a wrongful confinement between November 30, 2016, and December 13, 2016, and defendant does not address the allegation of a wrongful confinement between December 19 and December 21, 2016. However, as discussed below, claimant has failed to make out a prima facie case of wrongful confinement with respect to that three day period, and thus defendant's obligation to demonstrate the existence of a triable issue of material fact in order to defeat claimant's motion was not triggered.
2. Claimant also argues that he was wrongfully confined in violation of DOCCS Directive No. 4932, which simply restates, as pertinent here, the regulations set forth in 7 NYCRR part 251.
3. The disciplinary disposition further reflects, however, that the disciplinary hearing was timely concluded on December 13, 2016, within 14 days of either November 30 or December 1, 2016.