Opinion
# 2015-044-005 Claim No. 116037
05-05-2015
SHAWN GREEN v. THE STATE OF NEW YORK
SHAWN GREEN, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Roberto Barbosa, Assistant Attorney General
Synopsis
After trial, Court dismisses two causes of action for wrongful confinement of inmate claimant.
Case information
| UID: | 2015-044-005 |
| Claimant(s): | SHAWN GREEN |
| Claimant short name: | GREEN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 116037 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | SHAWN GREEN, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Roberto Barbosa, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 5, 2015 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim to recover damages allegedly suffered as a result of his wrongful confinement in July 2008 and September 2008. Defendant State of New York (defendant) answered and asserted several affirmative defenses. On December 29, 2008, claimant filed a supplemental claim asserting an additional cause of action for wrongful confinement which accrued on December 18, 2008. Defendant filed and served an answer to the supplemental claim and asserted two affirmative defenses. A trial concerning only the wrongful confinement causes of action with respect to the incidents in July 2008 and September 2008 was conducted by video conference on April 15, 2015, with the parties appearing at Elmira, and the Court sitting in Binghamton, New York. Trial of the remaining cause of action (asserted in the supplemental claim) was adjourned without date.
At the start of trial, claimant advised the Court that he had recently been confined in a Special Housing Unit and had not yet received his property, including his legal papers concerning, among other things, this claim. The Court advised claimant that an adjournment of the trial of this claim as well as the trial of Claim No. 115393 (which was also scheduled to be conducted by video conference from Elmira on April 15, 2015) would be granted. Claimant declined the adjournments and indicated that he wished to proceed with the trials of both claims without his papers. Nevertheless, claimant submitted additional documentation and argument after trial which he requested that the Court consider, in light of his lack of pre-trial access to his property. Because claimant was offered and could have received adjournments of the trials, the Court declines to consider his post-trial submissions.
In order to establish a prima facie case of wrongful confinement - a "species" of the tort of false imprisonment (Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 1986]) - 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 does not appear to be any dispute that defendant both intended to and did confine claimant without his consent, both in July 2008 and September 2008. Therefore, the only remaining issue is whether that 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 a reversal of the disciplinary charges, 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.; Davis v State of New York, 262 AD2d 887 [3d Dept 1999], lv denied 93 NY2d 819 [1999]). However, 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 (Arteaga, 72 NY2d at 220-221). Nevertheless, the violation of a rule or regulation alone is not a sufficient basis for a monetary award. Rather, the violation must have caused an actual injury or loss to the claimant (see e.g. Rivera v State of New York, UID No. 2006-028-008 [Ct Cl, Sise, P.J., Feb. 8, 2006]). In other words, claimant must still prove the case on the merits and establish that absent the violation, the outcome of the hearing would have been different (see Kilpatrick v State of New York, UID No. 2001-013-031 [Ct Cl, Patti J., Dec. 2001]; Moreno v State of New York, UID No. 2001-007-551 [Ct Cl, Bell, J. Apr. 5, 2001]).
With regard to the July 2008 cause of action, claimant alleges that Correction Officer (CO) R. Masti issued a false misbehavior report and that Hearing Officer Schornstheimer was biased in rendering the determination.
CO Masti issued claimant a misbehavior report dated July 5, 2008 which charged him with violating Prison Disciplinary Rules 106.10 (failing to obey all orders), 107.20 (providing a false statement) and 109.12 (failing to follow directions relating to movement). In the misbehavior report, Masti alleged that claimant came out of Mess Hall I and stood at the Mess Hall II overflow door. Masti stated that he ordered claimant to move forward to Mess Hall I and out of Masti's area, but claimant refused. Masti noted that when he asked claimant for his identification (ID), claimant stated that he left his ID card in his cell. Masti conducted a pat frisk of claimant and found that claimant had his ID in his left hand. Masti ordered claimant to be confined in his cell in keeplock status.
A Tier II Disciplinary Hearing was conducted before Hearing Officer Schornstheimer on July 8, 2008. The Hearing Disposition indicates that Hearing Officer Schornstheimer found CO Masti's report to be credible, and further that he (Schornstheimer) found claimant's testimony that he did not hear any of Masti's orders to be incredible (Claimant's Exhibit 2 at 1). Hearing Officer Schornstheimer found claimant guilty of all charges and sentenced him to 30 days keeplock, and 30 days loss of both commissary and phone privileges (id.). A transcript of the hearing was entered into evidence as Claimant's Exhibit 3.
At trial, claimant testified that he came out of Mess Hall I and went to the back of the line of about 40 other inmates in order to proceed back to his housing block. Claimant stated that CO Masti approached him, asked him several questions as well as requesting his ID, and then told him to move up. Because he was already at the back of the line, claimant indicated that he was trying to determine why CO Masti was asking him questions and telling him to move. As a result of the misbehavior report, claimant said that he was placed in keeplock for 30 days. Claimant testified that the confinement was not privileged because the conduct described in the misbehavior report did not support a finding that he posed any threat. Claimant testified that he filed an administrative appeal, but was uncertain as to whether he commenced a CPLR Article 78 proceeding.
CO R. Masti testified that on the date in question, claimant was trying to go into Mess Hall II when he was supposed to go into Mess Hall I, so claimant was potentially out of place. Masti said that because claimant was going to be out of place, he gave claimant direct orders to go back where he belonged and claimant refused. Masti stated that when he stopped claimant and asked him for his ID, claimant stated that he did not have it, so when Masti found the ID in claimant's left hand, he issued the misbehavior report. CO Masti indicated that his duties that day included being physically present in the corridor near the Mess Hall II door to monitor inmate movement. Claimant questioned Masti concerning why he gave the order to move forward, particularly when there were 40 or other inmates preventing or hindering claimant from moving forward. Masti reiterated that claimant was in an area where he should not have been and Masti had directed him to move out of that location.
Retired Correction Lieutenant Schornstheimer testified that he was the hearing officer for the disciplinary hearing held with respect to the July 5, 2008 misbehavior report. Although he could not recall this specific disciplinary hearing, Schornstheimer agreed with claimant that inmates are entitled to an impartial hearing officer to conduct the hearing. Schornstheimer stated that there are local policies and procedures at Elmira which govern inmate movement and that those policies were available in writing to all inmates. Claimant noted that after his testimony during the disciplinary hearing, Schornstheimer asked claimant if "that's the best you got."
All quotes herein are taken from the Court's recording of the proceeding, unless otherwise indicated.
Claimant also testified that Schornstheimer questioned him in an adversarial and prosecutorial manner during the disciplinary hearing, insinuating that Schornstheimer was biased.
Schornstheimer testified that he read the misbehavior report into the record at the start of the disciplinary hearing. He considered the content of the misbehavior report as well as claimant's testimony concerning his conduct. However, Schornstheimer stated that he did not find claimant to be credible. Schornstheimer denied being biased and stated that given the nature of the infractions and the fact that the incident occurred in a volatile area, he believed the 30-day keeplock penalty was appropriate.
As an initial matter, claimant's first avenue of redress was to exhaust his administrative remedies and if unsuccessful, pursue review of the administrative determination by commencing a CPLR Article 78 in Supreme Court (see e.g. Matter of Tolliver v Fischer, 105 AD3d 1239 [3d Dept 2013]; Green v State of New York, UID No. 2012-015-537 [Ct Cl, Collins, J., Apr. 5, 2012]). Although claimant testified that he appealed the determination administratively, he has not established that he sought judicial review in Supreme Court. Accordingly, this cause of action could be dismissed solely on this procedural basis.
In any event, however, this cause of action must be dismissed on the merits. Claimant argues that the lack of evidence of the policy and procedure which he allegedly violated, the inaccuracy of the information contained in the misbehavior report, the failure to have CO Masti testify at the disciplinary hearing, and the partiality of the Hearing Officer all establish that claimant was wrongfully confined. Claimant has failed to set forth the violation of any rule or regulation pertaining to the disciplinary process. Further, neither Hearing Officer Schornstheimer's comment nor the fact that he did not credit claimant's testimony establishes that he was biased. Moreover, although claimant characterizes this claim as one for money damages for his allegedly wrongful confinement, he is in essence challenging the outcome of the disciplinary hearing itself. Because the Court of Claims has no jurisdiction to review a determination from an administrative agency, the cause of action for wrongful confinement as a result of a disciplinary hearing held pursuant to the July 5, 2008 misbehavior report is dismissed (see Green v State of New York, 90 AD3d 1577 [4th Dept 2011], lv dismissed and denied 18 NY3d 901 [2012]).
Claimant relies on People ex rel. Vega v Smith (66 NY2d 130 [1985]) in contending that the disciplinary determination should be set aside because the Hearing Officer relied solely on the misbehavior report instead of calling CO Masti as a witness. The issue present in Vega (id.) was whether the disciplinary determinations were supported by substantial evidence, a matter which is properly raised within the context of a CPLR Article 78 proceeding commenced in Supreme Court. Because this Court has no jurisdiction to address a substantial evidence issue, claimant's contention has been disregarded by the Court.
Even if Schornstheimer's statement to claimant, "[t]hat's the best you got" (Claimant's Exhibit 3 at 2) was an intimation that claimant's defense was deficient, it does not establish that he had pre-judged claimant's guilt or was otherwise biased (see e.g. Matter of Covington v Goord, 262 AD2d 803 [3d Dept 1999]; Matter of Martinez v Scully, 194 AD2d 679 [2d Dept 1993]).
With respect to the cause of action accruing in September 2008, claimant asserts that CO T. Rosemark issued a false misbehavior report and that Hearing Officer Schornstheimer was again biased when he issued a decision resulting in claimant's cell confinement and deprivation of privileges. Claimant also alleges that he served a total of 35 days in keeplock, 5 days over the maximum allowed sentence.
Claimant was issued a misbehavior report dated September 11, 2008 and charged with violations of Prison Disciplinary Rules 104.13 (engaging in disturbing conduct), 106.10 (failing to obey all orders), and 115.10 (failing to comply with all frisk procedures) (Claimant's Exhibit 4). CO Rosemark stated that he ordered claimant to the wall for a pat frisk and then ordered him to remove his kufi as part of the pat frisk. According to Rosemark, claimant refused and yelled that he did not have to "take [his] kufi off for a pat frisk" (id.). Rosemark advised claimant that the kufi could be frisked and claimant allegedly shouted in front of approximately 15 other inmates that if Rosemark wanted claimant's kufi off, he could take it off himself. Claimant was sent back to his housing block and confined in keeplock.
A Tier II Disciplinary Hearing was conducted before Hearing Officer Schornstheimer on September 16, 2008. The Hearing Disposition indicates that Hearing Officer Schornstheimer found CO Rosemark's testimony and the misbehavior report to be accurate descriptions of the incident. He further found claimant's testimony that Rosemark was only engaging in a conversation with him about the kufi to be incredible, particularly in light of the contrary testimony of both Rosemark and CO G. Williams (Claimant's Exhibit 5 at 1). Hearing Officer Schornstheimer found claimant guilty of all charges and sentenced him to 30 days keeplock, and 30 days loss of both commissary and phone privileges (id.). A transcript of the hearing was entered into evidence as part of Claimant's Exhibit 5. Claimant stated that he took an administrative appeal, but could not recall whether he filed a CPLR Article 78 proceeding.
Claimant was also confined in keeplock for five days prior to his hearing.
Claimant testified that the description of the incident in the misbehavior report was not accurate because he was not escorted back to his cell nor was he informed that he was under keeplock until the housing block was going to lunch. Claimant stated that Directive 4910 which concerns pat frisk does not address or require the removal of religious headgear during a search, and Directive 4202 allows for an inmate to exercise his or her right to religious freedom. Accordingly, claimant argues that requiring him to remove his kufi during the pat frisk was a violation of his right to religious freedom. He further contends that because removal of his kufi was not mandated, CO Rosemark was without any authority to issue a direct order for its removal, and therefore the misbehavior report was not valid.
The Court notes that neither party submitted copies of these directives or requested that they be admitted into evidence.
Hearing Officer Schornstheimer testified that he relied upon the testimony of COs Rosemark and Williams who both stated that contrary to claimant's testimony, Rosemark was not having a conversation about the kufi with claimant. Rather, Rosemark gave claimant several direct orders to remove the kufi. Claimant stated Hearing Officer Schornstheimer was not impartial because he has found claimant guilty of violating disciplinary rules in every disciplinary hearing he (Schornstheimer) has held.
As set forth previously herein, claimant's initial avenue of redress was to exhaust his administrative remedies and if unsuccessful, pursue review of the administrative determination pursuant to CPLR Article 78 in Supreme Court (see e.g. Matter of Tolliver, 105 AD3d at 1239; Green, UID No. 2012-015-537). Although claimant testified that he appealed the disciplinary determination administratively, he has not established that he sought judicial review in Supreme Court. Accordingly, this cause of action could be dismissed solely on this procedural basis.
This cause of action must nevertheless also be dismissed on the merits. Claimant argues that defendant's failure to provide the policy and procedure authorizing CO Rosemark to require him to remove his kufi establishes that Rosemark's direct order to do so was invalid and cannot form the basis for a disciplinary action. Based upon this contention, claimant asserts that his confinement was not privileged. Once again, claimant has failed to set forth any evidence that defendant violated any rules and regulations pertaining to the disciplinary process. A review of the hearing transcript reveals that Hearing Officer Schornstheimer called both CO Rosemark and CO Williams as requested by claimant. Schornstheimer disallowed claimant's questions concerning the policy pertaining to removal of a kufi during a pat frisk. However, even if that ruling was erroneous, it does not establish that Schornstheimer had predetermined claimant's guilt or that he was otherwise biased.
Claimant argues that his five days of pre-hearing confinement was wrongful because he should have just been confined in his cell and allowed privileges instead of being placed in keeplock and denied privileges. Claimant's contention is without merit. Pursuant to 7 NYCRR 251-1.6 (a), "[w]here an officer has reasonable grounds to believe that an inmate should be confined to his cell or room or housing area because he represents an immediate threat to the safety, security or order of the facility or in immediate danger to other persons or to property, such officer shall take reasonable and appropriate steps to so confine the inmate." This regulation has been interpreted as "authorizing keeplock whenever an officer reasonably believes that a facility rule has been violated by an inmate, thus establishing an 'immediate threat' to the 'order of the facility' " (Matter of Bowe v Smith, 119 Misc 2d 453, 455 Ct 1983 ); see also Matter of Pettus v West, 28 AD3d 907 [3d Dept 2006]). According to CO Rosemark's testimony at the disciplinary hearing, claimant returned to his housing block after the incident. Rosemark called the block and advised that claimant should be confined in keeplock. Shortly thereafter, Rosemark issued the misbehavior report charging claimant with violating three prison disciplinary rules, thereby justifying claimant's five day pre-hearing confinement in keeplock (Matter of Bowe, 119 Misc 2d at 455).
Claimant also alleges that he was wrongfully sentenced to 35 days in keeplock confinement, which is 5 days longer than the maximum sentence for a Tier II disciplinary penalty. This contention also lacks merit. As set forth previously herein, claimant's five days rehearing keeplock confinement was authorized. Further, Hearing Officer Schornstheimer testified that it was within his discretion to apply the 5 days prehearing confinement to the posthearing penalty of 30 days. However, Schornstheimer stated that he chose not to credit the time and reflected this fact on the Hearing Disposition sheet by indicating that claimant received 5 penalty days in "keepprehear" (presumably prehearing keeplock) and 30 penalty days in keeplock (as well as 30 days loss of both commissary and phone privileges). Accordingly, the Court finds that claimant was not inappropriately sentenced to 35 days in keeplock.
Moreover, although claimant characterizes this claim as one for money damages for his allegedly wrongful confinement, he is once again essentially challenging the outcome of the disciplinary hearing itself. As set forth previously herein, the Court of Claims has no jurisdiction to review a determination from an administrative agency (Green, 90 AD3d at 1578). Accordingly, the cause of action for wrongful confinement as a result of a disciplinary hearing held pursuant to the misbehavior report issued September 11, 2008 is dismissed.
In conclusion, the two causes of action for wrongful confinement based upon determinations made at disciplinary hearings held in conjunction with misbehavior reports issued on July 5, 2008 and September 11, 2008, as alleged in the original claim filed on November 3, 2008, are hereby dismissed. The trial on the cause of action for wrongful confinement imposed as a result of a disciplinary hearing pertaining to the misbehavior report dated December 13, 2008, as asserted in the supplemental claim filed on December 29, 2008, will be scheduled in the near future.
May 5, 2015
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims