Opinion
# 2018-038-102 Claim No. 120674
01-12-2018
MICHAEL F. RAMSEY v. THE STATE OF NEW YORK
MICHAEL F. RAMSEY, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Jeane Strickland Smith, Assistant Attorney General
Synopsis
Claim for wrongful confinement granted in part after trial. Claimant did not prove by a preponderance of the credible evidence that the hearing was affected by an error of constitutional dimension and therefore did not defeat defendant's claim of privilege for his confinement as a disciplinary sanction. However, defendant did not demonstrate that it was immune from damages for restriction of claimant's liberty after the disciplinary finding was administratively reversed.
Case information
| UID: | 2018-038-102 |
| Claimant(s): | MICHAEL F. RAMSEY |
| Claimant short name: | RAMSEY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120674 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | MICHAEL F. RAMSEY, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Jeane Strickland Smith, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 12, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for wrongful confinement in keeplock at Green Haven Correctional Facility (CF) for 32 days commencing on August 16, 2011. The trial of this claim was conducted by videoconference on August 17, 2017, with the parties appearing at Green Haven CF in Stormville, New York and the Court sitting in Saratoga Springs, New York. Claimant presented his own testimony; defendant presented no witnesses. Claimant offered sixteen exhibits that were received into evidence; defendant offered one exhibit that was received in evidence. After listening to claimant testify and observing his demeanor as he did so, and upon consideration of that evidence, the documentary evidence received at trial, and the arguments of the parties at trial, the Court concludes that claimant was unlawfully confined in keeplock and denied privileges for three days, and was unlawfully denied privileges for an additional ten days.
At the trial of this claim on August 17, 2017, claimant offered into evidence Exhibits 12 and 13 (which are the audiotapes of the Tier II hearing that is at issue in the claim), which were in the possession of the Court, having been previously sent directly to the Court by claimant. The Court reserved decision on admission into evidence of the tapes, pending a review of by the Assistant Attorney General (AAG) defending the claim. Inasmuch as the AAG has since indicated that defendant had no objection to either exhibit (Strickland Smith Correspondence, dated Sep. 20, 2017), Claimant's Exhibits 12 and 13 are received into evidence.
FACTS
On August 16, 2011, claimant was incarcerated at Green Haven CF and was placed in keeplock in his cell following an incident in the A&B yard involving Correction Officer (CO) S. Carlson. Claimant was subsequently served on August 17, 2011 with an inmate misbehavior report (IMR) authored by CO Carlson charging him with failing to obey a direct order and staff directions relating to movement, which stated:
"On [August 16, 2011 at approximately 10:30 a.m.] after the anouncment [sic] to close the yard was made I observed [claimant] still playing chess with inmate Folk . . . Then I walked across the yard and gave them another order to exit the yard. At this time both inmates picked up the chess peices. [sic] These two inmates have been counceled [sic] prevviously [sic] for not promptly leaving the yard after the anouncement. [sic] Also be advised other inmates were yelling to these two inmates to stop playing."
(Claimant's Exhibit 1 [emphasis in original omitted]).
The Tier II disciplinary hearing on the IMR was conducted by Hearing Officer (HO) K. Schmitt over three days, August 18, August 22, and August 29, 2011 during which the following six individuals testified: (1) claimant (in pleading not guilty); (2) CO Martin; (2) CO Carlson; (4) inmate Folk; (5) CO Hotaling; (6) CO Bielefeldt; and (7) inmate Keys. The audio recording of the hearing received in evidence (Claimant's Exhibits 12 and 13) reveals a significant gap in the hearing record. Specifically, on August 18, 2011, on the first day of the hearing, after claimant made his statement and engaged in colloquy with HO Schmitt about witnesses and documentary evidence, and during CO Martin's testimony via speakerphone, the tape abruptly breaks. It resumes on August 22, 2011 with the testimony of COs Hotaling and Bielefeldt and a request by claimant to call two inmate witnesses, after which the hearing is adjourned for the day. The hearing continued on August 29, 2011, at which time inmate Keys testified, followed by claimant's statement and objections, and HO Schmitt's statement of the disposition of the disciplinary charges. Notably absent from the recording is the remainder of CO Martin's testimony, as well as the testimony of CO Carlson and inmate Folk on August 18, 2011.
At the beginning of the hearing on August 18, 2011, claimant sought to call the individual who made the announcement to close the yard over the loudspeaker because he interpreted the IMR as charging him with disobeying that announcement, and HO Schmitt concurred with that interpretation. At the trial of this claim, claimant testified that the following occurred at the disciplinary hearing. CO Carlson testified that after the announcement over the loudspeaker had been given to close the yard, he went around the yard telling inmates to leave and had seen claimant and Folk playing chess and had screamed across the yard to tell them to stop playing chess, but that neither complied. According to claimant, CO Carlson testified that he then walked across the yard and gave a second direct order to stop, with which they both complied, and that the order that claimant disobeyed was the order that he screamed from across the yard, not the announcement that was made to close the yard. Claimant testified that in preparing for the Tier II hearing he "built [his] defense" around his understanding that the IMR charged him with disobeying the loudspeaker announcement and not the order that CO Carlson screamed across the yard. At the hearing on August 22 and August 29, 2011, claimant objected to the IMR on the grounds that it lacked particularization and was legally insufficient because it did not allege that claimant had disobeyed CO Carlson's first direct order to leave the yard, and HO Schmitt acknowledged the objection. Further, on August 22, 2011, claimant sought to call two inmate witnesses who were present in the yard that day in an effort to address CO Carlson's testimony that he had issued two orders to leave the yard, However, claimant knew the the two inmates only by their nicknames and not their proper names or cell locations. Claimant stated that inmate Folk could identify them. HO Schmitt initially denied claimant's request because the names and locations of the witnesses were unknown. CO Bielefeldt was called as a witness later that day, and he testified that he had spoken with inmate Folk, who did not know the identity of the two inmates claimant sought to call. HO Schmitt granted claimant additional time to ascertain the identities and cell locations of the two inmates and the hearing was adjourned for the day. When the hearing reconvened on August 29, 2011, claimant was able to sufficiently identify inmate Keys, who testified later that day.
Unless otherwise indicated, all quotations are to the audio recording of the trial of this claim.
In addition, after the Tier II hearing commenced, claimant wrote Green Haven CF Superintendent William Lee on August 18 and August 19, 2011, requesting that he be immediately released from keeplock on the grounds that the IMR did not describe the conduct to support the charge (see Claimant's Exhibits 3 and 5). Superintendent Lee responded that he would not release claimant from confinement or dismiss the IMR (see Claimant's Exhibit 4), and that claimant must allow the hearing process to be completed (see Claimant's Exhibit 6). --------
Claimant testified that at the disciplinary hearing, he sought to introduce a grievance that he had previously filed against CO Carlson that involved a totally different matter, the purpose of which was to rebut CO Carlson's allegation in the IMR that claimant had been previously counseled about not promptly leaving the yard after the announcement. HO Schmitt denied his request without a written explanation. The audio recording of the hearing confirms that on August 22, 2011, claimant sought to introduce the grievance but HO Schmitt denied his request on relevancy grounds. Also, on August 22, 2011, in response to HO Schmitt's inquiry as to whether claimant had any further statement, testimony or explanation, claimant sought to introduce the two written statements dated August 18 and August 19, 2011, in which he objected to the procedural violations in the hearing. HO Schmitt denied claimant's request to admit the two statements, but afforded claimant the opportunity to verbally state his objections on the record, which he declined at that time.
Claimant testified that after the testimony of CO Carlson and inmate Folk, HO Schmitt flipped the audio cassette tape over and deliberately recorded over prior hearing testimony, and that claimant objected to HO Schmitt's actions at the conclusion of the hearing, which HO Schmitt overruled. As noted above, there is a gap in the hearing tape and the testimony of CO Carlson and inmate Folk is not present on the recording. In an affidavit, HO Schmitt averred that he did not intentionally record over the hearing, but rather that there was a recorder malfunction or he unintentionally recorded over the prior testimony and that he was unaware of the problem at the time of the hearing (see Claimant's Exhibit 14 [Schmitt Affidavit, ¶ 5]). The audio recording of the hearing confirms that at the close of the hearing claimant lodged an objection to HO Schmitt having recorded over prior testimony, that HO Schmitt questioned that contention, followed by claimant's explanation that HO Schmitt had flipped the tape over after the testimony of CO Carlson and inmate Folk and recorded over their testimony. At trial, claimant testified that he had also objected to the off-the-record conversations between CO Bielefeldt and HO Schmitt and inmate Folk about the two inmate witnesses claimant sought, which objection is also confirmed by the audio recording. At the conclusion of the hearing, HO Schmitt issued his disposition finding claimant guilty of both charges in the IMR and assessing him a penalty of 30 days in keeplock and loss of phones, retroactive to August 16, 2011 through September 15, 2011, and 30 days loss of packages and commissary, from August 29, 2011 through September 28, 2011 (see also Claimant's Exhibit 2). Claimant took an administrative appeal from HO Schmitt's decision, arguing inter alia that the hearing was not recorded in its entirety, that he was deprived of his right to submit documentary evidence and all witnesses, and that the IMR was defective because it did not contain the particulars of the alleged incident (see Claimant's Exhibit 7). HO Schmitt's decision was administratively reversed on September 13, 2011 on the ground that the "[h]earing record tape did not record testimony equipment malfunction [sic]" (Claimant's Exhibit 9).
Claimant testified that although HO Schmitt's disposition was reversed on September 13, 2011, he was not released from keeplock until September 16, 2011, and that his commissary and packages privileges were not restored until September 26, 2011. Claimant testified that he was confined to his cell for 23 hours a day and allowed only one hour of exercise time outside of his cell while he was confined to keeplock. Claimant further testified that because he was confined to keeplock and lost his phone and packages privileges, he was not allowed to communicate with the outside world, and that his restricted commissary privileges caused him to be denied his right to buy Kosher meals and practice his faith.
DISCUSSION
The elements of a cause of action for unlawful confinement are "that the defendant intended to confine the plaintiff, that the plaintiff 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 [2001]; Broughton v State of New York, 37 NY2d 451, 456 [1975] cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). The first three elements of this cause of action are clearly established by the uncontroverted evidence of claimant's confinement in keeplock from August 16 through September 16, 2011 and the denial of his privileges through September 26, 2011, as well as his requests to be released from confinement on August 18 and August 19, 2011 (see Claimant's Exhibits 3 and 5), which prove that he was aware of and did not consent to the confinement. Thus, defendant's liability for claimant's confinement turns upon whether the confinement was privileged.
The confinement of an inmate is privileged if it was accomplished in accordance with Department of Corrections and Community Supervision (DOCCS) regulations (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]). Where defendant's "employees act under the authority of 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 [1988]). Such immunity does not attach, however, where there has been a violation of an inmate's right to due process (see id., at 221).
At the close of claimant's case, defendant moved to dismiss the claim on the grounds that defendant is entitled to absolute immunity under Arteaga. Claimant argued that defendant is not entitled to immunity because defendant's agents did not follow DOCCS rules governing the disciplinary process. The Court reserved decision on defendant's motion, which will now be granted in part as to claimant's confinement prior to the reversal of HO Schmitt's disposition.
First, claimant argued that the IMR did not allege that claimant failed to comply with CO Carlson's direct order to leave the yard and was therefore non-compliant with the DOCCS rule that requires an IMR to contain "written specification of the particulars of the alleged incident of misbehavior involved" (7 NYCRR § 251-3.1 [c] [1]). An IMR "is sufficient if it contains the date, time and place of the offense, identifies the disciplinary rule alleged to have been violated and specifies the factual basis for the charge with enough particularity to enable the inmate to prepare a defense" (Matter of Torres v Goord, 261 AD2d 759, 759 [3d Dept 1999]). Assuming without deciding that the IMR was not compliant with 7 NYCRR § 251-3.1 (c) (1), claimant has not demonstrated that the asserted lack of particularity actually prejudiced his ability to prepare his defense. Following CO Carlson's testimonial clarification that claimant was being charged with disobeying his direct order and not the loudspeaker announcement, the hearing was twice adjourned in an attempt to identify the two inmate witnesses who could offer testimony regarding the orders that were given in the yard. Indeed, claimant was able to identify and call inmate Keys to offer testimony on this point, thereby ameliorating any potential prejudice flowing from the alleged inadequacy of the IMR (see Matter of Poe v Fischer, 107 AD3d 1251, 1252 [3d Dept 2013]; Matter of Toro v Fischer, 104 AD3d 1036, 1037 [3d Dept 2013]; Waters v State of New York, UID No. 2017-054-001 [Ct Cl, Rivera, J., Aug. 24, 2017]).
Claimant correctly contends that defendant's agents violated DOCCS regulations requiring that "[t]he entire hearing must be electronically recorded" (7 NYCRR § 253.6 [b]), but the failure to electronically record the hearing in full implicates a regulatory right but not a constitutional due process right (see Diaz v State of New York, 155 AD3d 1279 [3d Dept 2017], Matter of Weiss v Coughlin, 199 AD2d 638, 639 [3d Dept 1993]). Thus, the failure to electronically record the hearing "does not violate a procedural due process safeguard under either the Federal or State Constitutions so as to defeat the full immunity accorded correction personnel in the exercise of their quasi-judicial duties" (Wilson v State of New York, UID No. 2014-015-581 [Ct Cl, Collins, J., May 12, 2014], citing Wolff v McDonnell, 418 US 539, 561-570 [1974]. To the extent that claimant argues that off-the-record conversations between CO Bielefeldt and HO Schmitt and inmate Folk deprived claimant of due process, it is plain that those conversations were part of the effort to ascertain the identities and cell locations of the two inmate witnesses claimant sought to call, and there is nothing in the record to suggest that HO Schmitt relied upon those conversations in reaching his disposition (see Diaz, 155 AD3d at 1282).
Lastly, claimant argued that claimant was denied the right to present documentary evidence and to call witnesses. With respect to the documentary evidence issue, an inmate defending against an IMR "shall be allowed to submit relevant documentary evidence or written statements on his behalf" (7 NYCRR § 253.6 [c] [emphasis added]). Claimant's request to introduce his two written statements dated August 18 and August 19, 2011 in which he objected to procedural violations at the hearing was denied. However, to the extent that claimant's regulatory right to submit written statements was violated, claimant has not shown any actual prejudice because he verbally stated the objections on the record at great length both prior to and after HO Schmitt's denial of his documentary offer. Further, although claimant asserts that he was denied the right to introduce the grievance that he had filed against CO Carlson, he did not offer that document into evidence at trial, and thus, the Court can make no finding as to whether HO Schmitt abused his discretion and violated claimant's due process rights by excluding the grievance. As for the alleged denial of claimant's right to call witnesses, claimant's arguments did not identify the witnesses that were allegedly denied to him by HO Schmitt, and it appears from the audio recording that claimant was denied the right to call only one inmate witness, and only due to the fact that claimant was unable to identify that witness or his cell location. Thus, claimant has not shown any violation of a right to call witnesses.
In sum, claimant has not established a due process violation in the conduct of the disciplinary hearing that would strip defendant of its absolute immunity from liability for any conduct of HO Schmitt, and thus defendant is not liable to claimant for any confinement prior to the administrative reversal of HO Schmitt's disposition.
However, prison authorities have a ministerial duty to release an inmate from confinement after the administrative reversal of a determination after a disciplinary hearing, and defendant must provide some legal justification for any delay in releasing the inmate (see Minieri v State of New York, 204 AD2d 982 [4th Dept 1994]; Gittens v State of New York, 132 Misc 2d 399, 406 [Ct Cl 1986]; (Fanelli-Cressman v State of New York, UID No. 2015-018-644 [Ct Cl, Fitzpatrick, J., Oct. 6, 2015]). "When an inmate is kept confined beyond the term directed in a disciplinary disposition, or beyond the reversal and expungement of same, then the State may be liable in damages, unless such additional confinement is otherwise privileged" (Sellers v State of New York, UID No. 2011-030-012 [Ct Cl, Scuccimarra, J., May 25, 2011]). Here, defendant offered no proof or argument that claimant's continued confinement and restriction of privileges after the administrative reversal was privileged or otherwise authorized (cf. 7 NYCRR § 251-1.6), and defendant will therefore be liable to claimant for wrongful excessive confinement in keeplock and the loss of privileges after September 13, 2011.
"As a general rule, the measure of damages for [wrongful confinement] is such a sum as will fairly and reasonably compensate the injured person for injuries caused by the defendant's wrongful act" (Hallenbeck v City of Albany, 99 AD2d 639, 640 [3d Dept 1984]). Such damages may include noneconomic damages for mental anguish (see 2A NY PJI 3d 3:5, III (A), at 51 [2016]). The Court finds the appropriate quantum of compensation to be $30.00 per day for the three days that claimant was wrongfully confined in keeplock (with denial of privileges) (see Rodriguez v State of New York, UID No. 2014-048-534 [Ct Cl, Bruening, J., Mar. 31, 2014]; Davidson v State of New York, UID No. 2015-018-649 [Ct Cl, Fitzpatrick, J., Oct. 13, 2015]), and an additional $5.00 per day for the additional ten days that he was denied privileges, for a total sum of $140.00.
CONCLUSION
Claimant has proven his claim of unlawful confinement at Green Haven CF by a preponderance of the credible evidence, and is awarded damages in the amount of one hundred and forty dollars ($140.00).
To the extent that claimant has paid a filing fee, it may be recoverable pursuant to Court of Claims Act § 11-a (2).
Any motions not previously ruled upon are hereby DENIED.
The Chief Clerk of the Court of Claims is directed to enter judgment in accordance with this Decision.
January 12, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims