Opinion
# 2021-040-012 Claim No. 135650 Motion No. M-96296 Motion No. M-96339
04-02-2021
MARCOS RODRIGUEZ v. STATE OF NEW YORK
HELD & HINES, LLP By: Philip M. Hines, Esq. LETITIA JAMES Attorney General of the State of New York By: Charles Lim, Esq., AAG
Synopsis
State's Motion to Dismiss Claim on basis that the Court lacks jurisdiction as Notice of Intention was untimely served granted. Motion by Claimant to serve and file a Claim late denied based upon lack of appearance of merit.
Case information
| UID: | 2021-040-012 |
| Claimant(s): | MARCOS RODRIGUEZ |
| Claimant short name: | RODRIGUEZ |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 135650 |
| Motion number(s): | M-96296, M-96339 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | HELD & HINES, LLP By: Philip M. Hines, Esq. |
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Charles Lim, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 2, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's pre-Answer Motion (M-96296) to dismiss the Claim, pursuant to CPLR 3211(a)(2) and (8), on the basis that the Court lacks subject matter jurisdiction over the Claim and personal jurisdiction over the Defendant, on the basis that the Notice of Intention was untimely served upon Defendant in violation of Court of Claims Act §§ 10(3), (3-b) and 11 and, thus, did not extend Claimant's time to serve and file the Claim, resulting in the Claim being untimely served and filed pursuant to Court of Claims Act § 10, is granted. Claimant's Motion (M-96339) to serve and file a Claim late pursuant to Court of Claims Act § 10(6) is denied.
The Court will address Defendant's pre-Answer Motion (M-96296) to dismiss first.
This Claim, which was filed in the office of the Clerk of the Court on November 17, 2020, asserts that, on July 8, 2019, Claimant was an inmate at Eastern Correctional Facility (hereinafter, "Eastern") (Claim ¶¶ 2, 27). On that date, Claimant provided a urine sample for testing for the presence of illicit drugs (id., ¶ 27). On July 11, 2019, the urine sample was tested twice and generated a false positive indicating the presence of buprenorphine. Based on these results, Claimant was issued a Misbehavior Report, and a Tier 3 Superintendent's Hearing was held on July 19, 2019 and July 23, 2019, after which the hearing officer, "exclusively upon the basis of false positive urinalysis drug testing results," found Claimant guilty of violating Prison Rule 113.24 (Drug Use) (id., ¶¶ 28, 29, 31, 43). As a result of the guilty finding, Claimant alleges that he was wrongfully confined to his cell for 30 days from July 23, 2019 to August 22, 2019, and further sanctioned with 45 days loss of commissary, 45 days loss of packages, 45 days loss of phone, and was barred from the Family Reunion program (id., ¶ 32).
The Claim further alleges that drug testing equipment supplied to the Department of Corrections and Community Supervision (hereinafter, "DOCCS") by an outside company began to produce inaccurate test results for buprenorphine on a widespread scale (Claim, ¶¶ 20, 21). It further alleges that these false positive results were due to Defendant's negligent ownership, operation, installation, maintenance, servicing, supervision, direction, and control, of the urinalysis testing equipment, immunoassays, and the process used to test the specimen, and that Defendant failed to perform drug tests in keeping with relevant professional standards (id., ¶ 43). The Claim also asserts, inter alia, that Defendant: mishandled the specimens; failed to perform confirmatory tests, including gas chromatography/mass spectrometry; failed to properly label immunoassays; failed to prevent cross-reactivity; and other violations of DOCCS drug testing policies and procedures (id., ¶¶ 43 [negligence], 55-56 [due process violations]).
The Claim further notes that, "in or about September 2019, DOCCS officials recognized systemic testing errors in false positive results for buprenorphine and reversed and expunged the guilty verdicts rendered at multiple hearings, including that of Claimant" (Claim, ¶ 24). Claimant states that, on September 13, 2019, his Tier 3 sentence was reversed and expunged from his record (id., ¶ 34).
The Claim asserts causes of action for wrongful confinement, negligence, and violation of Claimant's due process rights.
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (to the extent Claimant asserts injuries caused by negligence or unintentional torts) or within one year (to the extent he asserts intentional torts of State employees) (Court of Claims Act §§ 10[3], 10[3-b]; Kairis v State of New York, 113 AD3d 942 [3d Dept 2014]). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.
Court of Claims Act § 11(a)(i) provides that the Claim shall be filed with the Clerk of the Court and that a copy shall be served upon the Attorney General within the time period provided in Section 10 of the Court of Claims Act, either personally or by certified mail, return receipt requested. The statute further provides that service by certified mail, return receipt requested, is not complete until the Claim or Notice of Intention to File a Claim is received by the Attorney General. It is well established that failure to timely serve the Attorney General in strict compliance with Court of Claims Act § 11 gives rise to a jurisdictional defect (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]).
Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense, either by motion to dismiss prior to service of the responsive pleading, or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
In his affirmation submitted in support of Defendant's Motion (M-96296), Defense counsel asserts that, on November 21, 2019, Claimant served a Notice of Intention to File a Claim upon the Attorney General (Affirmation of Charles Lim, Esq., Assistant Attorney General [hereinafter, "Lim Affirmation"], ¶¶ 3, 14, 15, and Ex. A attached). Counsel further asserts that the Claim was served upon the Attorney General on November 23, 2020 (id., ¶ 3, and Ex. B attached). The Claim accrued on August 22, 2019. Thus, the Notice of Intention was served upon Defendant one day beyond the 90 days provided for in Court of Claims Act § 10(3). In reviewing Exhibit A, which includes a photocopy of the envelope in which the Notice of Intention served on November 21, 2019 was purportedly mailed, the Court notes that the envelope was mailed by certified mail, return receipt requested on November 19, 2019 and the postage was $6.95 and was stamped as received by the Attorney General's Claims Bureau on November 21, 2019. In opposition to the Motion, Claimant submitted the affirmation of his counsel, Philip M. Hines, Esq. (hereinafter, "Hines Affirmation"). Counsel asserts that Claimant placed the Notice of Intention in the mail on November 14, 2019, based upon the Affidavit of Service Claimant attached to the Notice of Intention (id., ¶¶ 3, 5). Claimant asserts that the five-day delay between the date Claimant placed the item in the mail at Eastern and the date it was postmarked was not caused by Claimant (id., ¶ 5).
In essence, Claimant argues that the Court should invoke the doctrine of estoppel against Defendant because Eastern delayed in processing his legal mail. "Under certain circumstances, misfeasance or malfeasance on the part of facility officials may be a proper excuse for failure to timely file thus warranting estoppel" (Rivera v State of New York, 5 AD3d 881, 881 [3d Dept 2004]). The "mere allegation of a State failure to act is not sufficient[, however,] to overcome the presumption of regularity" (Wattley v State of New York, 146 Misc 2d 968, 970 [Ct Cl 1990]). Here, Claimant failed to demonstrate that any alleged delay in mailing his legal papers "arose out of any omissions or malfeasance on the part of" Eastern personnel responsible for handling mail (id.; see Tuszynski v State of New York, 156 Ad3d 1472, 1473 [4th Dept 2017]; Dorsette v State of New York, UID No. 2020-038-524 [Ct Cl, DeBow, J., Feb. 26, 2020]).
The Court also takes judicial notice of the fact that November 14, 2019 was a Thursday. Claimant has not asserted the time of day he placed the letter in the mailbox at Eastern and/or if it was after the last mail pick up of the day. It is also unknown if the Eastern mail room functions on the weekend. Claimant further did not inform the Court if his Inmate Account had enough funds for the mail to be sent out immediately, or if an advance of funds had to be approved. Just because the mail was not postmarked until Tuesday, November 19, 2019 does not mean the "delay" should be charged to the State, as Claimant asserts, without some evidence that the facility actually delayed in mailing out the item.
Court of Claims Act § 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (Mallory v State of New York, 196 AD2d 925, 926 [3d Dept 1993]; DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735 [1975]; Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory service and filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Lyles v State of New York, 3 NY3d 396, 400-401 [2004]; Buckles v State of New York, 221 NY 418 [1917]; Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). The Court cannot waive a defect in jurisdiction that has been timely raised (see Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). The defect asserted was timely and properly raised with particularity in this pre-Answer Motion, in accordance with Court of Claims Act § 11(c).
Based upon the foregoing, Defendant's pre-Answer Motion (M-96296) is granted and the Claim is dismissed for failure to timely serve the Notice of Intention and Claim upon Defendant as required by Court of Claims Act §§ 10(3), 10(3-b), and 11(a)(i). As the Notice of Intention was not timely served upon Defendant, it did not extend Claimant's time to serve and file the Claim and, thus, the Claim is untimely.
The Court will now address Claimant's Motion (M-96339) for permission to serve and file a Claim late pursuant to Court of Claims Act § 10(6). Claimant submitted as Exhibit B to the Motion a copy of his proposed Claim. The proposed Claim alleges three causes of action: wrongful confinement, negligence, and denial of due process.
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. As stated by the Appellate Division, Third Department in Kairis v State of New York (supra at 942):
The applicable statute of limitations for a claim of excessive confinement in the prison disciplinary context depends on whether the claim is predicated on intentional or negligent conduct (see Court of Claims Act § 10[3], [3-b]; Ramirez v State of New York, 171 Misc 2d 677, 680-682 [Ct Cl] [1997]; cf. Vasquez v State of New York, [23 Misc 3d 1101(A)] [Ct Cl] [2009], affd 77 AD3d 1229 [2010]). Such a claim accrues "upon a claimant's release from confinement" (Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept] [2011]).
An intentional tort has a one-year statute of limitations (CPLR 215[3]), while negligence has a three-year statute of limitations (CPLR 214[5]). As the cause of action accrued on the date Claimant was released from keeplock, August 22, 2019, this Motion was timely filed, whether the cause of action is an intentional tort, by virtue of the tolling provisions of the various Executive Orders relating to the Covid-19 pandemic, or is a negligence cause of action. Likewise, the negligence cause of action is timely. As to the cause of action for violation of Claimant's due process, a constitutional tort, a three-year statute of limitations also applies (CPLR § 214[5]).
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Claimant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Claimant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
Perhaps the most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 [2011], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Claimant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Claimant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Claimant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
"It is well settled that the 'actions of correctional facility employees with respect to inmate discipline matters are quasi-judicial in nature and, unless the employees exceed the scope of their authority or violate the governing statues and regulations, [D]efendant has absolute immunity for those actions' " (Ramirez v State of New York, 175 AD3d 1635, 1636 [3d Dept 2019], quoting Miller v State of New York, 156 AD3d 1067, 1067 [3d Dept 2017] [internal quotation marks and citation omitted]; Holloway v State of New York, 285 AD2d 765, 765 [3d Dept 2001]; see Arteaga v State of New York, 72 NY2d 212, 214 [1988]; Correction Law §§ 112, 137; 7 NYCRR, Parts 250-254). Such immunity attaches even if the determination is later reversed administratively or as the result of a successful article 78 proceeding (see Arteaga v State of New York, supra at 215). "Confining an inmate[, however,] 'without granting a hearing or other required due process safeguard[s]' are actions that would not receive immunity" (Ramirez v State of New York, supra at 1637, quoting Arteaga v State of New York, supra at 220).
In Ramirez v State of New York, supra at 1638, the Appellate Division, Third Department stated that "a wrongful confinement action cannot be based on the mishandling of a urine sample because the violation of drug testing directives does not constitute a due process violation" (see Miller v State of New York, supra). In Miller, the Court rejected an inmate's claim that the State lost its veil of absolute immunity when drug testing directives were violated, stating that those directives "do not relate to the due process concerns of the hearing and do not serve as a basis for the wrongful confinement cause of action" (id. at 1068). Thus, not all rule or regulation violations implicate due process protections, and, in turn, where there has been no due process violation, the State retains its absolute immunity (see, e.g., Bethune v State of New York, 50 Misc 3d 1216 [A] [Ct Cl, 2015], *3-4; Ramos v State, UID No. 2018-032-093 [Ct Cl, Hard, J., Dec. 28, 2018]; Claudio v State, UID No. 2018-054-016 [Ct Cl, Rivera, J., March 22, 2018]).
The selection of a new urinalysis test to test inmates and the testing of inmates pursuant to 7 NYCRR Part 1020 "fell within 'the "formidable tasks" of maintaining order and security in correctional facilities and protecting the safety of inmates and employees' " (Holloway v State of New York, supra at 766, quoting Arteaga v State of New York, supra at 217). The selection process resulted in DOCCS making a discretionary decision "in furtherance of general policies and purposes where the exercise of reasoned judgment can produce different acceptable results" (Holloway, id., quoting Arteaga at 219). Therefore, the State had absolute immunity as to the selection and use of the test at least until it had sufficient notice and data that there was a problem with the urinalysis test selected (see Tomon v State of New York, UID No. 2020-051-033 [Ct Cl, Martin, J., Dec. 11, 2020]).
Claimant's reliance on the mere fact that Defendant, subsequently, administratively reversed and expunged all charges arising from his hearing held on July 19, 2019 and July 23, 2019 is misplaced. It has repeatedly been held that it is not enough for an inmate to merely establish that his convictions were administratively reversed and expunged (see Shannon v State of New York, 111 AD3d 1077, 1077-1078 [3d Dept 2013]; Tomon v State of New York, supra).
A fundamental flaw in Claimant's analysis is his presumption that his urinalysis test was a false positive. The State did not admit that all urinalysis tests resulted in false positives. Rather, in the interest of fairness, the State expressly decided to reverse its disciplinary action for all inmates who tested positive using the new urinalysis test even though it would include inmates who had consumed an opioid and correctly tested positive. Thus, the proposed Claim fails to state a cause of action for wrongful confinement and lacks the appearance of merit for this cause of action.
Turning next to the cause of action alleging a denial of due process, the proposed Claim alleges that Defendant violated Claimant's due process rights by relying solely on the "preliminary analytical test result of 'positive' for buprenorphine when issuing a Misbehavior Report to … Claimant," conducting the Superintendent's Hearing, rendering a guilty verdict, and determining Claimant's punishment, without first confirming that preliminary result using "a more specific chemical method to confirm the analytical result … , as required by generally accepted protocols and procedures" (Affidavit of Marcos Rodriguez, Exhibit C [Proposed Claim, ¶¶ 52-55]). However, even assuming that a State constitutional tort sounding in the denial of due process is recognized as a matter of law, the proposed Claim fails to state a cause of action for denial of due process based on Defendant's alleged failure to confirm the preliminary positive test result for buprenorphine by a different testing method. DOCCS regulations governing urinalysis drug testing of inmates provide, as relevant to this cause of action, that, where a DOCCS facility has urinalysis testing equipment:
"If a positive result is obtained on the first test, the procedure followed and the results obtained shall be noted by the operator on the urinalysis procedure form. A second test shall be performed on the same sample. The results of the second test shall be noted on a second urinalysis procedure form. If a positive result is obtained from the second test, the individual performing the urinalysis testing shall cause a misbehavior report to be issued" (7 NYCRR § 1020.4 [f] [1] [iv]).
The regulations do not require that a different method of testing be used to confirm the initial urinalysis results, but merely that the specimen must be re-tested before a misbehavior report can be issued. Here, the proposed Claim does not allege that Defendant's agents failed to comply with these regulations when testing Claimant's urine sample for buprenorphine, but rather that they failed to complete a different confirmatory test not contemplated by the regulations. Moreover, even if the proposed Claim could be read as alleging that Claimant's sample was not re-tested using the same testing protocols, as discussed above, Defendant's failure to adhere to the DOCCS drug testing regulations does not constitute a due process violation. Lastly, to the extent that the Claim could be read as challenging the DOCCS testing regulations as violative of due process, the Court lacks jurisdiction to entertain such a claim (see Cass v State of New York, 58 NY2d 460, 463 [1983], rearg denied 60 NY2d 586 [1983]; Shelton v New York State Liq. Auth., 61 AD3d 1145, 1150-1151 [3d Dept 2009]; Franciscelli v State of New York, UID No. 2020-038-544 [Ct Cl, DeBow, J., Jul. 10, 2020]). Thus, the proposed Claim fails to state a cause of action for denial of due process in connection with the urinalysis test, and lacks the appearance of merit for this cause of action.
The proposed Claim, at paragraph 56, also alleges that Defendant violated Claimant's due process rights during the disciplinary process by violating: (1) 7 NYCRR § 254.6(c) by excluding exculpatory evidence that Claimant offered or attempted to offer at his hearing; in failing to allow Claimant to submit relevant documentary evidence or written statements on his behalf; and in not allowing him to reply orally to the charges at the hearing; (2) 7 NYCRR § 251-3.1(c) and (d) by failing to delineate the required content in the Misbehavior Report issued to Claimant, and in failing to include required language in the Misbehavior Report, including the right to call witnesses; (3) 7 NYCRR § 251-4.1(a)(3) by failing to allow Claimant to select an inmate assistant; (4) 7 NYCRR § 254.1 by failing to properly select a hearing officer; (5) 7 NYCRR § 254.5 by failing to allow Claimant to call witnesses at the hearing; (6) 7 NYCRR § 254.6(a) by failing to properly serve the Misbehavior Report on Claimant at least 24 hours before the hearing, and by failing to delay the start of the hearing the appropriate length of time after the assignment of an assistant; and (7) 7 NYCRR § 254.6(b) by failing to electronically record the hearing.
Defendant states, in opposition to the alleged first due process violation, that 7 NYCRR § 254.6(c) governs the conduct of the hearing when an inmate's mental state or intellectual capacity is at issue in the case and that Claimant's mental state or intellectual capacity is not an issue alleged in the proposed Claim. Additionally, Defendant asserts Claimant failed to specify what, if any, evidence he offered, or attempted to offer, at the hearing that was both exculpatory and improperly excluded. Defendant further states the Tier 3 Hearing Packet (see Affirmation in Opposition of Charles Lim, Esq., Assistant Attorney General [hereinafter, "Lim Affirmation in Opposition"], Ex. C attached), more particularly, the Hearing Record Sheet, documents that Claimant responded to the charge at the hearing by pleading "Not Guilty." The Tier 3 Hearing Packet also demonstrates that Claimant was allowed relevant witnesses and documents and denied irrelevant witnesses and documents at the discretion of the hearing officer (Lim Affirmation in Opposition, ¶ 24).
Claimant asserts that the allegations are violative of 7 NYCRR § 254.6(a), not 7 NYCRR § 254.6(c) as asserted by Defendant (Affirmation in Reply of Philip M. Hines, Esq. [hereinafter, "Hines Affirmation in Reply"], ¶ 8). However, it is the proposed Claim itself that alleges that 7 NYCRR § 254.6(c) was violated. Thus, the proposed Claim refers to an incorrect section of the regulations. Therefore, the Court finds that this first alleged due process violation lacks the appearance of merit. Moreover, and in any event, because the record shows that Claimant pleaded "Not Guilty" at the hearing, the Court further finds that alleged due process violation lacks the appearance of merit (Lim Affirmation in Opposition, Ex. C attached; see also Lim Affirmation in Opposition, Ex. D, p. 14 attached [Claimant entered plea of not guilty at the hearing]). In addition, Claimant refers to violations of §§ 254.6(a) and (b) as the alleged sixth and seventh due process violations which will be discussed infra.
Defendant states, in opposition to the alleged second due process violation, that, contrary to Claimant's allegations that the Misbehavior Report failed to delineate the required content in violation of 7 NYCRR § 251-3.1(c), the Misbehavior Report contained in the Tier 3 Hearing Packet (Ex. C attached to Lim Affirmation in Opposition) sufficiently sets forth a written specification of the particulars of the alleged incident of misbehavior involved, refers to the inmate rule book number (Rule 113.24) allegedly violated by Claimant, and sufficiently sets forth the date, time, and place of the incident as required by 7 NYCRR § 251-3.1(c). Defendant further asserts that, with regard to Claimant's allegation that Defendant violated 7 NYCRR § 251-3.1(d), the language set forth in that subdivision does not apply to misbehavior reports used in connection with Violation Hearings. Additionally, Defendant asserts, it is apparent from the Tier 3 Hearing Packet that Claimant was well aware of his right to call witnesses, and exercised that right to call witnesses, despite the fact that most of the witnesses requested were denied by the hearing officer with a written explanation for each denial (Lim Affirmation in Opposition, ¶ 25).
Claimant does not refute Defendant's contention that the Misbehavior Report meets the requirements of 7 NYCRR § 251-3.1(c). However, with regard to 7 NYCRR § 251-3.1(d), the Court agrees with Claimant that this regulation applies to the subject situation, as Claimant's disciplinary hearing was a Superintendent's Hearing and not a Violation Hearing because restrictive housing, such as keeplock or SHU, is not a disposition provided for at violation hearings (Hines Affirmation in Reply, ¶ 29; see 7 NYCRR § 252.5[a]). Moreover, the Tier 3 Hearing Packet is replete with references to it being in connection with a Superintendent's Hearing (see Lim Affirmation in Opposition, Ex. C) and, the hearing officer stated, at the outset of the hearing, that he was designated pursuant to 7 NYCRR 254.1, and Part 254 governs Superintendent's Hearings (see Lim Affirmation in Opposition, Ex. D, p. 1). 7 NYCRR § 251-3.1(d) provides:
All misbehavior reports shall also contain the following language:
(1) "You are hereby advised that no statement made by you in response to the charge, or information derived therefrom may be used against you in a criminal proceeding."
(2) "You will be permitted to call witnesses on your behalf provided that doing so does not jeopardize institutional safety or correctional goals."
(3) "If restricted pending a hearing for this misbehavior report, you may write to the Deputy Superintendent of Security or his/her designee prior to the hearing to make a statement on the need for continued prehearing confinement."
NOTE: Paragraphs (2) and (3) of this subdivision shall not be included in misbehavior reports used in connection with violation hearings.
A review of the Misbehavior Report contained in the Tier 3 Hearing Packet (Lim Affirmation in Opposition, Ex. C) establishes that it does not contain the language required by 7 NYCRR § 251-3.1(d). However, Claimant was advised by the hearing officer, at the beginning of the hearing, that nothing he said would be used against him in any criminal proceeding, as well as that he could have witnesses on his behalf and Claimant indicated that he understood those rights (Lim Affirmation in Opposition Ex. D, p. 2). In addition, as noted above in connection with the alleged first due process violation, it is apparent from the Tier 3 Hearing Packet that Claimant was well aware of his right to call witnesses, and exercised that right to call witnesses. Thus, the Court finds that the alleged due process violations premised upon 7 NYCRR §§ 251-3.1(d)(1) and (2) lack the appearance of merit (see Matter of Colucci v Scully, 173 AD2d 953, 954-955 [3d Dept 1991]). With respect to the alleged violation based upon 7 NYCRR § 251-3.1(d)(3), that Claimant's due process was violated because he was not informed that he could contact the Deputy Superintendent of Security to protest his pre-hearing confinement, the Court concludes that such notice "does not implicate any due process protections[,] … any decision to discontinue pre-hearing confinement would clearly be a discretionary determination to be made by DOCCS, not a due process right owed to [C]laimant" (Medina v State of New York, UID No. 2013-016-025 [Ct Cl, Marin, J., Aug. 6, 2013]). Thus, the Court further finds that the alleged due process violation with respect to 7 NYCRR § 251-3.1(d)(3), likewise, lacks the appearance of merit. Therefore, the Court finds that the second alleged due process violation lacks the appearance of merit.
Defendant states, in opposition to the alleged third due process violation with regard to Claimant's assertion that he was denied the right to select an inmate assistant in violation of 7 NYCRR § 251-4.1(a)(3), the Assistant Form contained within the Tier 3 Hearing Packet (Lim Affirmation in Opposition, Ex. C) indicates that Sergeant (hereinafter, "Sgt.") Dawson was selected by Claimant to assist him with the hearing and that Sgt. Dawson did assist him in preparing for the hearing (Lim Affirmation in Opposition, ¶ 26).
Claimant asserts that, while Sgt. Dawson is listed as the inmate assistant at page "36" of the Tier 3 Hearing Packet, an individual named McAndrews is listed as the inmate assistant at page "47" of the Tier 3 Hearing Packet. There is no explanation given as to why two assistants were purportedly assigned (Hines Affirmation in Reply, ¶ 30).
7 NYCRR § 251-4.1(a)(3) provides:
(a) An inmate shall have the opportunity to pick an employee from an established list of persons who shall assist the inmate when a misbehavior report has been issued against the inmate if: …
(3) the inmate is charged with drug use as a result of a urinalysis test.
The Court notes that the Tier 3 Hearing Packet reveals that, on July 13, 2019, Claimant signed an inmate assistant list that contained a checkmark next to the name of Correction Officer (hereinafter, "CO") McAndrews on the list of English language inmate assistants. Notably, none of the three Spanish language inmate assistants, one of whom was a T Dawson, was selected. That same day, CO McAndrews and Claimant each signed an Assistant Form indicating that they met, and the inmate assistant provided Claimant with several requested documents. A second Assistant Form states that Sgt. Dawson was selected to assist Claimant, that they met on July 16 or 17, 2019, that additional documents were provided to Mr. Rodriguez, and potential staff witnesses were listed. Claimant and Sgt. Dawson each signed that second Assistant Form (Lim Affirmation in Opposition, Ex. C attached). Moreover, at the Superintendent's Hearing, Claimant agreed that CO McAndrews served him with a copy of the formal charges and, further, that he chose assistance from Sgt. Dawson, and that he and Sgt. Dawson met two days before the hearing commenced (Lim Affirmation in Opposition, Ex. D, pp. 2-4 attached). Here, it is clear that Claimant had two inmate assistants, one more than was required by the regulations. What is unclear is why he was afforded an additional inmate assistant. Claimant has failed to assert, however, any prejudice resulted from the assignment of two inmate assistants, as opposed to the one he was entitled to under the regulation, and the Court finds that the third alleged due process violation lacks the appearance of merit.
Neither party addressed the issue of the alleged failure to properly select the hearing officer as set forth in NYCRR § 254.1, the alleged fourth due process violation. As Claimant has not offered any specifics as to how this regulation was allegedly violated, the Court finds that the allegation as set forth in the proposed Claim is general and conclusory and lacks the appearance of merit.
Defendant states, in opposition to the alleged fifth due process violation with regard to Claimant's assertion that he was not allowed to call witnesses at the hearing, that 7 NYCRR § 254.5 does not grant inmates the unfettered ability to call witnesses at a disciplinary hearing. Defendant asserts that the regulation provides that an inmate may call witnesses on his or her behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial, including the specific threat to institutional safety or correctional goals presented. Defendant further asserts that, in this case, it is apparent from the Witness Interview Notices contained within the Tier 3 Hearing Packet, that the hearing officer provided a written statement to Claimant explaining that certain requested witnesses were denied on the grounds that their testimony was either immaterial and/or redundant (Lim Affirmation in Opposition, ¶ 27 and Ex. C attached).
Claimant asserts that, when the hearing officer denied permission to call witnesses, the "reason" was always the same: the witness was not involved in the incident, or the testimony would be irrelevant. The hearing officer never even gave Claimant the opportunity to explain why he believed the testimony of the denied witness would be relevant. Claimant asserts that the reasons offered by the hearing officer were no reasons at all, but were, rather, mere pretext and that the determination was arbitrary and capricious (Hines Affirmation in Reply, ¶¶ 9, 31). Claimant cites three cases in support of his proposition that the failure of the hearing officer to allow his witnesses resulted in a denial of Claimant's rights. However, all three cases cited are CPLR Article 78 proceedings where the petitioners were attempting to overturn administrative determinations by DOCCS (Matter of Paddyfote v Annucci, 154 AD3d 1224 [3d Dept 2017]; Matter of Peyton v Annucci, 139 AD3d 1223 [3d Dept 2016]; Matter of Murat-Hinton v Farmer, 60 Misc3d 1206[A] [Sup. Ct, Warren County, 2018]; see Hines Affirmation in Reply, ¶¶ 32-34).
In order for this Court to make a determination regarding the hearing officer's ruling denying Claimant's witnesses, the Court would be required to review administrative determinations of a DOCCS' employee. "Regardless of how a claim is characterized, one that requires, as a threshold matter, the review of an administrative agency's determination falls outside the subject matter jurisdiction of the Court of Claims" (Green v State of New York 90 AD3d 1577, 1578 [2011], lv denied 18 NY3d 901 [2012]; see Matter of Gross v Perales, 72 NY2d 231, 236 [1988], rearg denied 72 NY2d 1042 [1988]; Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142, 1143-1144 [3d Dept 2009], lv denied 12 NY3d 712 [2009]; Matter of Salahuddin v Connell, 53 AD3d 898, 899 [3d Dept 2008]). The jurisdiction of the Court of Claims is limited to awarding damages in tort or contract and does not extend to the review of discretionary determinations of State agencies (Hill v State of New York, UID No. 2020-040-041 [Ct Cl, McCarthy, J., Dec. 1, 2020]; Lantry v State of New York, UID No. 2001-001-027 [Ct Cl, Read, J., June 28, 2001]). Claimant should have challenged the determination of DOCCS by way of a proceeding pursuant to CPLR Article 78 in Supreme Court just as the petitioners did in the three cases Claimant relies upon. It is well settled that this Court lacks subject matter jurisdiction of a Claim where the primary relief sought is obtainable in an Article 78 proceeding, regardless of how the Claim is characterized (Guy v State of New York, 18 AD3d 936, 937 [3d Dept 2005]). The same analysis applies to Claimant's allegation that the hearing officer improperly excluded exculpatory evidence Claimant offered or attempted to offer at the hearing. Therefore, the Court finds that both the first, as well as the fifth, alleged due process violations lack the appearance of merit as the Court lacks jurisdiction.
Defendant states in opposition to the alleged sixth due process violation with regard to Claimant's assertion that DOCCS failed to serve properly the Misbehavior Report on the Claimant at least 24 hours before the start of the hearing, and failed to delay the start of the hearing the appropriate length of time after the assignment of an assistant, in violation of 7 NYCRR § 254.6(a)(1), that the Tier 3 Hearing Packet documents establish that Defendant complied with the regulation (Lim Affirmation in Opposition, ¶ 28, and Ex. C attached). As Claimant has not offered any specifics as to how this regulation was allegedly violated, the Court finds that the allegation as set forth in the proposed Claim is general and conclusory and lacks the appearance of merit.
Defendant states in opposition to the alleged seventh due process violation with regard to Claimant's assertion that 7 NYCRR § 254.6(b) was violated in that the entire hearing was not electronically recorded, that this allegation is completely controverted by the certified copy of the hearing transcript of Claimant's hearing (Lim Affirmation in Opposition, ¶ 29, and Ex. D attached).
Claimant asserts that the section providing for the recording of the entire hearing is 7 NYCRR § 254.6(a)(2) (not 7 NYCRR § 254.6[b] as Defendant asserts). In any event, Claimant further asserts that the entire hearing was not recorded. Testimony was taken in the form of an e-mail exchange between the hearing officer and Thermo-Fisher as to whether any medications Claimant was prescribed would cross-react with buprenorphine. While annexed to the Tier 3 packet, this e-mail exchange was not made part of the hearing transcript (Hines Affirmation in Reply, ¶ 35).
However, it is the proposed Claim that alleges that 7 NYCRR § 254.6 (b) was violated by the alleged failure to record electronically the entire hearing. Thus, the proposed Claim refers to an incorrect section of the regulations. In any event, the Tier 3 Hearing Packet (Lim Affirmation in Opposition, Exs. C, D) contains the Hearing Transcript and a copy of the e-mail exchange between the hearing officer and Thermo-Fisher as to whether any medications Claimant was prescribed would cross-react with buprenorphine. Therefore, the Court finds that the seventh alleged due process violation lacks the appearance of merit.
Finally, the cause of action sounding in negligence also lacks the appearance of merit. "To the extent claimant alleges a negligence cause of action, it must be dismissed as a claim for negligence may not supplant the traditional tort remedies of false imprisonment and malicious prosecution" (Nazario v State of New York, 24 Misc 3d 443, 455 [Ct Cl 2009], affd 75 AD3d 715 [3d Dept 2010], lv denied 15 NY3d 712 [2010]; see Santoro v Town of Smithtown, 40 AD3d 736, 738 [2d Dept 2007]; Simon v State of New York, 12 AD3d 171 [1st Dept 2004]; Boose v City of Rochester, 71 AD2d 59, 62 [4th Dept 1979]). Thus, that portion of the Motion that asserts a negligence cause of action is denied.
Thus, the Court finds and concludes that the proposed Claim asserting wrongful confinement, due process violations, and negligence, based upon the alleged improper result of a urinalysis test and various alleged due process violations, lacks the appearance of merit. Accordingly, the Motion is denied.
April 2, 2021
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's pre-Answer Motion to dismiss the Claim pursuant to CPLR 3211(a)(2) and (8) and Claimant's Motion to serve and file a Claim late, pursuant to Court of Claims Act § 10(6): Papers Numbered
Motion M-96296
Notice of Motion, Affirmation in Support, & Exhibits attached 1 Affirmation in Opposition 2
Motion M-96339
Notice of Petition, Affirmation in Support, Affidavit, & Exhibits attached 3 Affirmation in Opposition & Exhibits attached 4 Affirmation in Reply 5 Filed Papers: Claim