Opinion
# 2017-044-516 Claim No. 128552 Motion No. M-89481
03-09-2017
ERWIN JACKSON v. THE STATE OF NEW YORK
ERWIN JACKSON, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General
Synopsis
Inmate claimant's motion for summary judgment in wrongful confinement claim partially granted where hearing was not timely commenced without authorization for delay, and was then not concluded when hearing officer left room and claimant was advised months later that the charges had been dismissed.
Case information
| UID: | 2017-044-516 |
| Claimant(s): | ERWIN JACKSON |
| Claimant short name: | JACKSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128552 |
| Motion number(s): | M-89481 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | ERWIN JACKSON, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 9, 2017 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim to recover damages due to his allegedly wrongful confinement in keeplock status during the course of a disciplinary proceeding in July 2016 while he was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility. Defendant State of New York (defendant) answered and asserted several affirmative defenses. Claimant now moves for summary judgment. Defendant opposes the motion.
Claimant argues that his confinement was not privileged because the facts alleged in the misbehavior report did not establish a violation of any prison disciplinary rule or constitute a danger or immediate threat to life, health, or property. He also contends that defendant's failure to commence the disciplinary hearing within seven days of his pre-hearing confinement as required by the rules and regulations resulted in his wrongful confinement. Claimant further notes that prior to commencement of the hearing, the hearing officer presented him with a completed hearing disposition sheet which indicated he was guilty of the charge contained in the misbehavior report.
Conversely, defendant asserts that the time limits set forth in the regulations governing disciplinary proceedings are directory in nature, and because claimant did not suffer any prejudice the failure to comply with the rules does not support a cause of action in this instance. Defendant further argues that in any event, the hearing was completed within 14 days as required, claimant was found guilty of possessing a typewriter without a permit (contraband), and then was released from confinement.
Claimant, as the proponent of a summary judgment motion, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853).
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). 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 show that if defendant had properly complied with its rules and regulations, the outcome of the hearing would have been different and 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 his affidavit in support of this motion, claimant states that he was issued a misbehavior report dated July 12, 2016 and confined to his cell pending a Tier II Disciplinary Hearing. He asserts that the hearing was not commenced until 15 days after issuance of the misbehavior report. He also asserts that the hearing was not completed until he received a memorandum from the Discipline Office on September 2, 2016, 52 days after the misbehavior report was issued.
Claimant has attached a copy of his verified claim as Exhibit 1 to his affidavit. Claimant asserts that Correction Officer Hartman conducted a search of his cell and discovered his manual typewriter. Hartman confiscated the typewriter because claimant did not have a facility permit for it. Claimant states that he informed Hartman that the typewriter had been discarded approximately five years earlier and that he retrieved it from the trash. Claimant notes that he was confined to his cell (keeplock) and thereafter received a misbehavior report.
The claim has several exhibits (Exhibits A-F) attached to it. In an effort to avoid any confusion when referring to the exhibits, the Court will cite to the exhibits attached to the filed claim rather than those exhibits which are attached to Exhibit 1 of the motion papers.
Claimant alleges that prior to commencement of his disciplinary hearing on July 26, 2016, Correction Lieutenant R. Goodliff (the Hearing Officer) gave claimant a document entitled Disciplinary Hearing Disposition Rendered (the Hearing Disposition). The Hearing Disposition had been completed and indicated that claimant was guilty of violating Prison Disciplinary Rule 113.23 and sentenced him to 15 days loss of commissary, phone, and package privileges from July 12, 2016 through July 27, 2016. The Hearing Disposition included 15 days of keeplock confinement for the same time period, but it appears that a line was drawn through that section. Claimant states that at the commencement of the hearing, he admitted the facts contained in the misbehavior report, but argued that these facts did not constitute a violation of the rules. He also objected to the timeliness of the hearing because it was commenced more than 14 days after the misbehavior report was issued. Claimant asserts that the Hearing Officer stated that an extension had been granted due to the unavailability of any hearing officer, but claimant denies having received any notification. Claimant notes that at that time, the Hearing Officer turned off the recording machine and left the proceeding to consult with other DOCCS employees. Claimant states that when the Hearing Officer returned, he did not turn on the recorder or proceed any further with the hearing. Instead, the Hearing Officer directed claimant to return to his housing unit. Claimant indicates that he (claimant) retained the Hearing Disposition given to him before the hearing commenced.
Claim, Exhibit C.
Claimant asserts that on July 26, 2016, he made a request pursuant to the Freedom of Information Law for a copy of the hearing tape and the written reasons for the Hearing Officer's determination. When he did not get a response, claimant wrote a letter dated August 30, 2016 to the Deputy Superintendent of Security Services. In response to this letter, claimant received a memorandum dated September 2, 2016 from the Discipline Office. The memorandum states that the Tier II Disciplinary Hearing from July 2016 had been dismissed and there was "no longer any paperwork or hearing tape."
Claim, Exhibit D.
Id., Exhibit E.
Id., Exhibit F.
The Court will initially address claimant's argument that his pre-hearing confinement was wrongful because his possession of the typewriter neither violated any prison rules nor constituted a danger or immediate threat to life, health, or property. 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]).
The misbehavior report states that claimant had a typewriter in his cell, but he did not have a permit for it. The misbehavior report also indicates that the typewriter had a department identification number on it which did not belong to claimant. These allegations are sufficient on their face to set forth a violation of Prison Disciplinary Rule 113.23 which provides in pertinent part that "an inmate shall not possess any item unless it has been specifically authorized by the superintendent or designee, the rules of the department or the local rules of the facility." Because claimant did not have a permit for the typewriter, he was in apparent violation of a prison disciplinary rule. Accordingly, claimant's immediate, pre-hearing confinement to keeplock was authorized by the rules and regulations.
Claimant further asserts that he was wrongfully confined because he was found guilty of the charge before the disciplinary hearing began and that in any event, the hearing was not timely commenced or completed. It is well-settled that an inmate has a due process right to a hearing before he or she is convicted of violating a prison disciplinary rule (see generally Arteaga, 72 NY2d at 220-221; see also 7 NYCRR 252.3, 252.5, 253.6, 253.7, 254.6 and 254.7). Claimant has established without contradiction that the Hearing Officer completed the Hearing Disposition finding that claimant was guilty of violating Prison Disciplinary Rule 113.23 prior to commencing the disciplinary hearing. Claimant has also shown that his hearing was suspended, but never continued or completed. The Court finds that defendant failed to provide claimant with an appropriate disciplinary hearing, having prejudged and determined his guilt prior to commencing the hearing, thus acting outside the sphere of privileged actions and depriving claimant of due process (see Arteaga 72 NY2d at 220-221). Because claimant was issued a misbehavior report, the Court finds that defendant was authorized to confine claimant to keeplock from July 12, 2016 through July 19, 2016 pursuant to 7 NYCRR 251-5.1 (a). However, when claimant did not receive a hearing at that time, his continued confinement from July 20, 2016 through and including July 26, 2016 (when he was released after a hearing was commenced but never concluded), was not authorized (Floyd v State of New York, UID No. 2014-015-022 [Ct Cl, Collins, J., Aug. 29, 2014]). The Court finds that claimant has established that defendant's violation of its rules and regulations governing disciplinary hearings caused him to be wrongfully confined and suffer damages (see Watson, 125 AD3d at 1065). Accordingly, claimant has met his burden of establishing entitlement to judgment as a matter of law on his cause of action for wrongful confinement.
"In calculating [the seven-day period], the day the misbehavior report is written is excluded" (Matter of Agosto v Selsky, 39 AD3d 1106 [3d Dept 2007]).
The burden now shifts to defendant to submit admissible evidence sufficient to create a question of fact as to whether the confinement was authorized. In opposition, defendant acknowledges that the hearing was not timely commenced within seven days of claimant's confinement as required by 7 NYCRR 251-5.1 (a). However, defendant contends, the hearing was timely completed within 14 days as required by 7 NYCRR 251-5.1 (b) when claimant was found guilty of possessing contraband. Defendant contends that because claimant has not suffered any prejudice, the time limitations of 7 NYCRR 251-5.1 are directory in nature and he cannot recover for the delayed hearing.
First, defendant has based its argument on the premise that claimant was found guilty of the charge contained in the misbehavior report. Defendant provided no such proof, and this assertion is clearly contradicted by the memorandum from the Discipline Office which acknowledges that the hearing (charge) was dismissed. Further, defendant has not submitted any evidence to contradict claimant's assertion that the purported determination of guilt contained in the Hearing Disposition was made prior to any hearing.
In light of the existence of this memorandum, the Court is perplexed and disturbed by defendant's argument that claimant was found guilty.
Next, defendant cites Matter of Lugo v Coughlin (182 AD2d 920 [3d Dept, 1992]), Matter of Rosado v Kuhlmann (164 AD2d 199 [3d Dept 1990], lv denied 77 NY2d 809 [1991]), and Matter of Taylor v Coughlin (135 AD2d 992 [3d Dept 1987]), for its assertion that because the time limits of 7 NYCRR 251-5.1 are directory claimant is required to demonstrate that the delay caused him to suffer prejudice (see also Davidson v State of New York, 66 AD3d 1089, 1090 [3d Dept 2009]). Defendant's reliance on these cases is misplaced. Although defendant has correctly stated the law, this situation is distinguishable. It is apparent that the charges against claimant were "dismissed" due to the failure to timely commence the hearing within seven days of his confinement without authorization for the delay by the commissioner or his designee (7 NYCRR 251-5.1 [a], [b]). Claimant established through admissible evidence, which was not controverted by anyone with knowledge of the facts, that he was confined to SHU without a hearing from July 12, 2016 to July 26, 2016, and that in fact no hearing was ever actually held due to the failure to provide him with the appropriate procedural safeguards. As the Court of Appeals stated in Arteaga (72 NY2d at 220-221), the "actions of correction personnel . . . in confining [inmates] without granting a hearing or other required due process safeguard (see, 7 NYCRR 251-5.1; parts 252-254) would not receive immunity." While the first seven days of claimant's confinement to the SHU were privileged under 7 NYCRR 251-5.1 (a), the remainder was not. The Court finds that defendant has failed to meet its burden of submitting admissible evidence or argument to create a material question of fact (having apparently misapprehended the facts in the first place).
Accordingly, claimant's motion for summary judgment is granted to the extent that he was wrongfully confined for seven days. The Court finds that the appropriate damages for confinement in keeplock in this particular instance are $50.00 per day. Thus, claimant is awarded a total of $350.00 in damages for his wrongful confinement during the seven-day period from July 20, 2016 through and including July 26, 2016.
No claim is made for lost wages nor were any other circumstances established which would require a trial on the issue of damages.
Claimant has also moved for summary judgment on his causes of action for malicious prosecution and negligence which are based upon the same factual allegations supporting his cause of action for wrongful confinement. An essential element to a cause of action for malicious prosecution is the commencement of either a judicial proceeding or an administrative proceeding which has sufficient attributes of a judicial proceeding including the admission of evidence, the taking of testimony under oath, and the right to cross-examination (Groat v Town Bd. of Town of Glenville, 73 AD2d 426, 429, n1 [3d Dept 1980], appeal dismissed 50 NY2d 928 [1980]). It is well-settled that a prison disciplinary hearing does not provide a right to cross-examination, and therefore does not constitute the type of adversarial proceeding which would be akin to a judicial proceeding (see Bookman v State of New York, UID No. 2015-015-598 [Ct Cl, Collins, J., Mar. 4, 2015]; Brooks v State of New York, UID No. 2013-018-434 [Ct Cl, Fitzpatrick, J., Aug. 28, 2013]; Gittens v State of New York, 132 Misc 2d 399 [Ct Cl 1986]; Treacy v State of New York, 131 Misc 2d 849 [Ct Cl 1986], affd sub nom. Arteaga v State of New York, 125 AD2d 916 [3d Dept 1986], affd 72 NY2d 212 [1988]). Accordingly, claimant's cause of action for malicious prosecution cannot stand as a matter of law and his motion for summary judgment with respect to this cause of action is denied without regard to the opposition papers.
Further, claimant's cause of action alleging the defendant was negligent in conducting the disciplinary hearing is merely a restatement of his cause of action for wrongful confinement. Notwithstanding that claimant has alleged that defendant's conduct was negligent, he is seeking monetary damages relating to a disciplinary hearing and he may recover only upon a showing that 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 215, 220-221). Accordingly, claimant's cause of action for negligence is duplicative of the wrongful confinement cause of action and cannot be maintained as a matter of law. Consequently, his motion for summary judgment on this cause of action is also denied without regard to defendant's opposition papers.
Because claimant cannot maintain the causes of action for malicious prosecution and negligence as a matter of law, the Court has searched the record and finds that summary judgment in defendant's favor dismissing these two causes of action is appropriate (CPLR 3212 [b]).
In conclusion, claimant's motion for summary judgment is granted solely to the extent that he is awarded damages on the cause of action for wrongful confinement in the amount of $50.00 per day for the seven-day period from July 20, 2016 through July 26, 2016 for a total amount of $350.00. The Court has searched the record and finds that claimant cannot maintain his causes of action for malicious prosecution and negligence as a matter of law. Accordingly, summary judgment dismissing these two causes of action is granted in defendant's favor.
It is further ordered that, to the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2). Let judgment be entered accordingly.
March 9, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on claimant's motion: 1) Notice of Motion filed on November 3, 2016; Affidavit of Erwin Jackson, sworn to on October 14, 2016, and attached exhibits. 2) Affirmation in Opposition of Mark Sweeney, Assistant Attorney General, dated December 5, 2016, and attached exhibits. Filed papers: Claim filed on September 19, 2016; Verified Answer filed on October 7, 2016.