Opinion
# 2012-010-035 Claim No. 121179 Motion # 2012-010-035 Claim No. M-81787 # 2012-010-035 Claim No. CM-81923
09-25-2012
ROBERT ELLIS v. THE STATE OF NEW YORK
Synopsis
defendant's cross-motion for summary judgment granted , claim untimely, lacks subject matter jurisdiction Case information
UID: 2012-010-035 Claimant(s): ROBERT ELLIS Claimant short name: ELLIS Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 121179 Motion number(s): M-81787, CM-81923 Cross-motion number(s): Judge: Terry Jane Ruderman ROBERT ELLIS Claimant's attorney: Pro Se HON. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General for the State of New York By: Terrance K. DeRosa, Assistant Attorney General Third-party defendant's attorney: Signature date: September 25, 2012 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers numbered 1-5 were read and considered by the Court on claimant's motion for summary judgment and defendant's cross-motion for summary judgment:
Notice of Motion, Claimant's Supporting Affidavit and Exhibits............................1
Notice of Cross-Motion, Attorney's Supporting Affirmation and Exhibits.............2
Claimant's Reply Opposition to Cross-Motion and Exhibits...................................3
Defendant's Reply Affirmation and Exhibits...........................................................4
Claimant's Sur-Reply..................................................................................................5
Background
This claim arises out of a disciplinary hearing officer's determination that claimant, an inmate at Sing Sing Correctional Facility (Sing Sing), was guilty of drug use. Claimant was sentenced to three months in keeplock in the special housing unit (SHU) and a loss of numerous privileges (Defendant's Cross-Motion, Ex. G). On March 18, 2011, claimant was transferred from Sing Sing to Clinton Correctional Facility (Clinton), which was at a greater distance from claimant's family and where claimant had resided prior to his incarceration. Claimant was released from SHU on May 28, 2011. The hearing officer's determination was subsequently reversed and annulled by Decision and Order of the State Supreme Court dated January 24, 2012. In February 2012, claimant was transferred from Clinton to Green Haven Correctional Facility (Green Haven), which is closer to claimant's previous residence.
The claim was filed with the Court on April 16, 2012 and served upon the New York State Attorney General's Office on April 18, 2012. The claim asserts negligent training and supervision of New York State Department of Corrections and Community Supervision's (DOCCS) officials and investigators, federal and state constitutional violations and wrongful confinement. Additionally, claimant seeks damages for the costs incurred by his family who traveled to Clinton to visit him and which claimant agreed to reimburse to his family after his release from incarceration. Claimant seeks summary judgment on his claim in the amount of $13,055.39:
$9,000 $100 for each day of wrongful confinement(Claim ¶ 21; Claimant's Affidavit in Support of Motion, p 5). In support of his summary judgment motion, claimant includes his own declaration and a declaration of his two sisters and his parents (Claimant's Motion Exs.). The declarations contain approximations of the costs incurred without any independent supporting documentation or receipts.
$4,000 travel expenses incurred by claimant's family when they visited claimant at Clinton
$50 filing fee
$5.39 service upon defendant
Defendant opposes claimant's motion for summary judgment and cross-moves to dismiss the claim on the grounds of, inter alia, untimeliness and lack of subject matter jurisdiction.
Facts
The undisputed facts are as follows. On February 17, 2011, claimant was issued a misbehavior report charging him with drug use based upon his urine sample of February 16, 2011 that tested positive for opiates. Claimant was placed in keeplock in SHU. Subsequently, a disciplinary hearing was held wherein claimant attempted to establish that the urine analysis had produced a false positive for opiates because he had ingested poppy seed bread and not drugs. In support of his defense, claimant sought to introduce into evidence an empty bread bag which listed poppy seeds as an ingredient and claimant requested that his mother be called as a witness to establish that she had brought claimant the bread in that bag prior to the urine analysis.
The hearing officer refused to accept the bread bag into evidence on the ground that claimant could not prove that he had received the bag from his mother. Claimant's request to call his mother as a witness was denied by the hearing officer for the stated reason that she was not present when claimant provided the urine sample. A technician from the company that manufactures the urine analysis equipment testified at the hearing. He stated that the equipment could produce a false positive for opiates if poppy seeds are ingested. The Sing Sing package room clerk testified that claimant could have received the poppy seed bread without it having been itemized by the facility. On February 28, 2011, the hearing officer found claimant guilty of drug use and imposed several penalties including three months in SHU and a loss of privileges and good time credit (Defendant's Cross-Motion, Ex. G).
On March 18, 2011, claimant was transferred from Sing Sing, which is approximately 30 minutes from where claimant resided prior to his incarceration, to Clinton, which is approximately 300 miles from claimant's prior residence. Claimant contends that he was transferred pursuant to prison policies which permit only those inmates who maintain a positive disciplinary record to be housed in a facility within close proximity to where they had resided prior to their incarceration.
On April 26, 2011, the hearing officer's determination was affirmed administratively. On May 28, 2011, claimant was released from SHU (Defendant's Cross-Motion, Ex. K).
By Decision and Order dated January 24, 2012, the hearing officer's determination was annulled on the ground that the hearing officer had erred in his determination that the testimony of claimant's mother was immaterial to claimant's defense (Defendant's Cross-Motion, Ex. J). The January 24, 2012 order also directed that claimant's disciplinary record be expunged and that claimant be restored any good behavior allowance that was lost. Defendant complied with the order.
On February 25, 2012, claimant was transferred from Clinton to Green Haven, which is approximately 50 minutes from where claimant had resided prior to his incarceration and claimant was restored to the status he had prior to the disciplinary hearing.
Analysis
Claimant contends that his claim accrued on February 25, 2012 when he was transferred to a facility in closer proximity to his family and was restored to the status he had prior to the disciplinary hearing. Thus, he maintains that his claim was timely commenced in April 2012.
The issue of timeliness of the claim is jurisdictional and the failure to comply with any of the service provisions is a defect compelling the dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281 ["(t)he failure to satisfy any of the (statutory) conditions is a jurisdictional defect"]). Accordingly, the Court must address this jurisdictional issue before addressing the merits of claimant's summary judgment motion. The Court rejects claimant's argument that his claim is timely because it is based upon a continuing wrong. This argument is misplaced and the cases upon which claimant relies are inapposite. The Court also rejects claimant's argument that his claim accrued on February 25, 2012, when he was transferred from Clinton to Green Haven and restored to the status he had prior to the disciplinary hearing. Claimant's reference to being restored to the status he enjoyed prior to the disciplinary determination is irrelevant and does not determine the timeliness of his claim. Indeed, "inmates do not have a constitutional or statutory right to their prior housing or programming status" which they enjoyed prior to the disciplinary determination (Matter of Skyes v Fischer, 98 AD3d 769; Matter of Marcial v Fischer, 96 AD3d 1245; Matter of Scott v Fischer, 95 AD3d 1576).
It is well settled that a cause of action for wrongful confinement accrues on the date when the confinement terminated (see Davis v State of New York, 89 AD3d 1287 [wrongful confinement claim accrued upon release from keeplock]; Johnson v State of New York, 95 AD3d 1455 [wrongful confinement claim accrued upon release from SHU]). Here, it is undisputed that claimant was released from SHU on May 28, 2011 and the claim was not commenced until April 2012, well beyond the 90 days after the claim accrued. Thus, the wrongful confinement claim was not timely commenced and therefore warrants dismissal.
Claimant's federal and state constitutional claims also warrant dismissal because this Court does not have subject matter jurisdiction to hear federal constitutional claims (see Carver v State of New York, 79 AD3d 1393, 1395; Lyles v State of New York, 2 AD3d 694, 696, affd on other grounds 3 NY3d 396) and a state constitutional claim will not be recognized where, as here, there is an available remedy at common-law (see Brown v State of New York, 89 NY2d 172; Lyles v State of New York, supra). Additionally, the hearing officer's exercise of discretion during the disciplinary proceeding and the DOCCS official's conduct regarding the investigation and issuance of the misbehavior report were done within the scope of their employment and therefore are not an appropriate basis for claimant's allegation of negligent training and supervision (see Neiger v City of New York, 72 AD3d 663). Accordingly, those causes of action also warrant dismissal.
Finally, the remaining causes of action warrant dismissal because the State is afforded absolute immunity with regard to its quasi-judicial actions in disciplinary proceedings where discretion was exercised, even if erroneously exercised (Arteaga v State of New York, 72 NY2d 212; Holloway v State of New York, 285 AD2d 765). Here, the hearing officer's actions were purely discretionary in exercising his judgment as to whether a witness's testimony would be relevant and whether an item should be received into evidence (Defendant's Cross-Motion, Ex. E). Thus, the hearing officer's determinations made in the context of the disciplinary hearing are afforded absolute immunity (see Varela v State of New York, 283 AD2d 841)and claimant has been afforded all the relief to which he is entitled where his institutional record has been expunged and his loss of good time has been restored (see Matter of Marcial v Fischer, supra; Matter of Applegate v Fischer, 89 AD3d 1303).
To the extent that claimant argues that the hearing officer acted with malice, a cause of action for malicious prosecution was not asserted in the claim and claimant cannot assert a new cause of action in a reply affidavit. Thus, this cause of action is not part of Claim No. 121179 and is not before this Court. In any event, a disciplinary hearing is not a proper basis for a malicious prosecution claim (see Treacy v State of New York, 131 Misc 2d 849).
Accordingly, defendant's cross-motion to dismiss is GRANTED and claimant's motion for summary judgment is DENIED as moot.
September 25, 2012
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims