Opinion
# 2017-044-538 Claim No. None Motion No. M-89814
05-02-2017
MICHAEL FLORES v. THE STATE OF NEW YORK
MICHAEL FLORES, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General
Synopsis
Late claim relief denied without prejudice.
Case information
| UID: | 2017-044-538 |
| Claimant(s): | MICHAEL FLORES |
| Claimant short name: | FLORES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-89814 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | MICHAEL FLORES, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 2, 2017 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant, an inmate proceeding pro se, moves for permission to file and serve a late claim to recover for damages suffered as a result of his allegedly wrongful confinement for a period of 182 days in a Special Housing Unit (SHU) as a result of a disciplinary hearing conducted while he was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility (Elmira). Defendant State of New York (defendant) opposes the motion.
Initially, the Court notes that movant has not provided an affidavit in support of this motion as required by CPLR 2214 and the Uniform Rules for the Court of Claims [22 NYCRR] § 206.8 (a) (see 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 2214.02; see also Pettus v State of New York, Ct Cl, Mar. 26, 2007, Schaewe, J., Claim No. 112504, Motion No. M-72699). Accordingly, movant's motion could be denied solely on this procedural basis. However, the Court will not deny the motion on this basis, particularly given the information contained in the notice of motion as well as the attached documentation.
Movant has entitled the document "notice of verified claim," however, it is in essence a notice of motion and the Court will refer to it as such.
Movant has attached a document entitled "verified claim" immediately following his notice of motion which the Court will refer to as the Proposed Claim. Movant has also submitted a claim verified on October 25, 2016 (the October 2016 Claim) as well as a notice of intention executed on October 21, 2016.
A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act § 10 [6]). The Proposed Claim alleges that movant's cause of action accrued on June 9, 2016 when he was found guilty of violating several Prison Disciplinary Rules. However, a cause of action for wrongful confinement, a "species" of the intentional tort of false imprisonment (Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 1986]), accrues on the date that the claimant is released from confinement (Campos v State of New York, 139 AD3d 1276 [3d Dept 2016]; Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]). Movant also states that he was wrongfully confined "from May 31, 2016, to June 9, 2016, to August 15, 2016, to September 6, 2016, a total of 182 days." However, as defendant correctly notes, May 31, 2016 through September 6, 2016 is only 98 days. The Court finds that it is not possible to determine when the claim accrued based upon the allegations contained in the Proposed Claim.
Proposed Claim, ¶ 10.
However, movant alleges in his notice of intention that his disciplinary determination was reversed on August 15, 2016 and he was released from "keep-lock" confinement on September 6, 2016. Movant repeats these allegations in the October 2016 Claim. Although it is unclear when movant was released from SHU (as opposed to keeplock) confinement, it is clear that he could not have been released earlier than August 15, 2016 when the determination was reversed. The statute of limitations for wrongful confinement is one year (CPLR 215 [3]). Accordingly, this motion mailed on December 22, 2016 is timely (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2d Dept 2001]).
Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act § 10 (6) in determining a motion to permit a late filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;
5) 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 defendant; and
6) movant has any other available remedy.
Movant does not directly address the issue of his delay in making this motion. However, to the extent that he may be asserting difficulty in proceeding with litigation due to his incarceration, this is not an adequate excuse for his delay in timely serving a notice of intention or timely filing and serving a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Plate v State of New York, 92 Misc 2d 1033 [Ct Cl 1978]). Accordingly, this factor weighs against him.
The Court notes that movant verified the Proposed Claim under the penalty of perjury, indicating that he was unable to obtain the services of a notary public from December 12, 2016 through January 2, 2017.
The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. Defendant now has notice of the essential facts and the ability to conduct an investigation. Further, defendant admits that given the nature of this proposed claim, the State will not be substantially prejudiced in its defense. Thus, the three factors of notice, opportunity to investigate and the lack of substantial prejudice all weigh in favor of movant.
The Court notes that movant has also included an affidavit of service indicating that the October 2016 Claim was mailed to the Attorney General's Office on November 14, 2016. The October 2016 Claim would have provided some notice of the facts of the Proposed Claim.
Affirmation of Assistant Attorney General (AAG) Douglas H. Squire, dated February 13, 2017, in Opposition to Motion, ¶ 9.
Another factor to be considered is whether movant has any other available remedy. Movant is seeking monetary damages for his allegedly wrongful confinement and as defendant appropriately concedes, the Court of Claims is the proper forum for this action. This factor also weighs in favor of movant.
id., ¶ 10.
The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In order to establish a meritorious claim, a movant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]).
In order to establish a prima facie case of wrongful confinement, a claimant must show 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]). There is no dispute that defendant both intended to and did confine movant, without his consent, from May 31, 2016 at least through August 15, 2016. Therefore, the only remaining issue is whether the confinement was privileged. It is well-settled that defendant is entitled to absolute immunity from claims for monetary damages relating to disciplinary hearings so long as it complies with the rules and regulations that govern such hearings (Arteaga v State of New York, 72 NY2d 212 [1988]). Notwithstanding the subsequent reversal of the underlying disciplinary charges, whether administratively or via a successful CPLR Article 78 proceeding, the immunity is retained as long as the disciplinary proceedings were conducted consistent with the procedures provided in the relevant DOCCS rules and regulations (id.; see Davis v State of New York, 262 AD2d 887 [3d Dept 1999], lv denied 93 NY2d 819 [1999]). Immunity may be lost if defendant violated its own rules and regulations in conducting the hearing or otherwise acted outside the sphere of privileged actions and deprived the claimant of a due process safeguard (Arteaga, 72 NY2d at 220-221). However, "[b]efore a violation of one of the rules or regulations governing prison disciplinary hearings can become the basis for an award of money damages from the State, it must be established that the violation caused actual injury to the inmate" (Rivera v State of New York, UID No. 2006-028-008 [Ct Cl, Sise, P.J., Feb. 8, 2006]). In other words, a claimant must show that if defendant had properly complied with its rules and regulations, the outcome of the hearing would have been different and the claimant would not have been wrongfully confined or suffered damages (see Watson v State of New York, 125 AD3d 1064, 1065 [3d Dept 2015]; Lewis v State of New York, UID No. 2007-028-560 [Ct Cl, Sise, P.J., July 16, 2007]).
"Where an alleged regulatory violation implicates no constitutionally required due process safeguard, however, the State retains its absolute immunity from liability" (Bethune v State of New York, UID No. 2015-015-098 [Ct Cl, Collins, J., Dec. 7, 2015]).
In the Proposed Claim, movant alleges that he was issued a misbehavior report charging him with violations of Prison Disciplinary Rules 100.10 (assault on an inmate), 113.10 (weapon), 100.13 (fighting) and 104.11 (violent conduct). Movant asserts that the misbehavior report was issued on May 31, 2016 by Sergeant Powers and was based upon a confidential informant's statement to Correction Officer (CO) Woychak. The informant allegedly stated that he observed movant cut Inmate Hernandez on May 30, 2016. Movant alleges that on June 9, 2016, he was found guilty of all four charges and sentenced to 365 days confinement in SHU. Movant indicates that he filed an administrative appeal and on August 15, 2016, the determination was administratively reversed. The reversal also directed that a re-hearing be commenced within 7 days and completed within 14 days. Movant states that a re-hearing was not held and he was advised that the disposition was expunged from his disciplinary record.
Movant argues that his confinement was wrongful because the Hearing Officer did not speak with the confidential informant in order to determine his credibility and reliability. Movant notes that the Hearing Officer also failed to call CO Woychak and Sergeant Powers as witnesses. Movant further contends that the Hearing Officer violated 7 NYCRR 253.1 (b), which provides in pertinent part that "[t]he disciplinary hearing officer shall be responsible for conducting disciplinary hearings in an impartial manner." Specifically, movant asserts that the Hearing Officer's aforementioned errors established that he was not impartial and if he had acted appropriately, movant would not have been found guilty.
Initially, the Court notes that 7 NYCRR 253.1 as cited by movant applies to Tier II Disciplinary Hearings (7 NYCRR part 253), rather than Tier III Superintendent's Hearing (7 NYCRR part 254) which movant received. Nevertheless, an inmate is clearly entitled to have a fair and impartial hearing officer conduct the disciplinary hearing (see Wolff v McDonnell, 418 US 539, 563-567 [1974]; Sira v Morton, 380 F3d 57, 59 [2d Cir 2004]). However, movant has not provided any documentation concerning the disciplinary hearing such as the inmate misbehavior report, disposition rendered, hearing transcript or the administrative reversal from which the Court could infer bias (Matter of Martinez v Scully, 194 AD2d 679 [2d Dept 1993]; see also Matter of Hughes v Suffolk County Dept. of Civ. Serv., 74 NY2d 833, 834 [1989], amended on other grounds 74 NY2d 942 [1989]). Further, the mere fact that the Hearing Officer ultimately ruled against movant does not establish bias (Martinez, 194 AD2d at 680). Movant also has not set forth any evidence that the Hearing Officer was required to speak directly with the confidential informant or to call CO Woychak and/or Sergeant Powers to testify. Further, movant has not provided any evidence that he requested CO Woychak and/or Sergeant Powers to testify as his witnesses or that such a request was denied. In other words, movant has not established the violation of any rule or regulation governing the disciplinary process. Moreover, movant has failed to establish that the outcome of the hearing would have been different absent the purported errors. Accordingly, the Court finds that the all important factor of merit weighs against movant.
The determination of movant's administrative appeal may contain the basis for the reversal, which could also provide insight into whether a rule or regulation was violated.
"[W]here 'the excuse offered for the delay is inadequate and the proposed claim is of questionable merit' "(Matter of Robinson v State of New York, 35 AD3d 948, 949-950 [3d Dept 2006], quoting Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]), denial of a late claim application is appropriate (see Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). Although four of the six statutory factors weigh in favor of movant, the crucial issue of merit weighs against him. Movant's motion for permission to file and serve a late claim asserting a cause of action for wrongful confinement is denied, without prejudice to making a second motion for such relief upon proper papers.
May 2, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on movant's motion: 1) Notice of Motion filed on December 27, 2016, and attachments. 2) Affirmation in Opposition of Douglas H. Squire, AAG, dated February 13, 2017, and attached exhibit.