Opinion
# 2011-018-238 Claim No. 116339 Motion No. M-80252
10-03-2011
ROJAS v. STATE OF NEW YORK
Synopsis
The blanket of immunity is waived if the State fails to comply with its own due process safeguards set forth in its rules and regulations (Arteaga, 72 NY2d at 220-221). On a motion to dismiss a claim, the Court must accept the facts alleged in the claim as true and give claimant the benefit of any favorable inference (Leon v Martinez, 84 NY2d 83, 87 [1994]; Daley v County of Erie, 59 AD3d 1087 [4th Dept 2009]). In this case, Claimant has alleged specific and at least minimally sufficient facts to withstand a motion to dismiss the claim. Case information
UID: 2011-018-238 Claimant(s): STEVEN ROJAS Claimant short name: ROJAS Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116339 Motion number(s): M-80252 Cross-motion number(s): Judge: DIANE L. FITZPATRICK STEVEN ROJAS Claimant's attorney: Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Thomas Trace, Esquire Senior Attorney Third-party defendant's attorney: Signature date: October 3, 2011 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant brings a motion to dismiss the claim for failure to state a cause of action. Claimant opposes the motion.
The claim seeks damages for wrongful confinement in the Special Housing Unit (SHU) as a result of being found guilty of forgery, impersonation, and lying. Claimant asserts that on March 27, 2008, he was in the process of being transferred out of the SHU to a new facility when he was served with new misbehavior charges. In sum, he was charged with forging Lieutenant D. Wiernicki's name on a disbursement form dated March 19, 2008, approving the withdrawal of $6,000 from Claimant's inmate account to be sent to Pedro Rojas at a post office box address.
The Misbehavior Report is signed by Lieutenant D. Wiernicki, indicating that when he reviewed outgoing disbursement records from recent transactions with the Inmate Accounts Office, he noticed the disbursement form from Claimant with his forged signature approving the transaction. There also was no sergeant's signature on the form as is typically required.
A Superintendent's Hearing was held on March 31, 2008, and Claimant had witnesses testify, including his father, the alleged intended recipient of the $6,000 check. Claimant alleges that part of the hearing testimony was not recorded, specifically his father's testimony. Claimant also alleges that the person who issued the $6,000 check from his account conducted the Superintendent's Hearing. That hearing officer found Claimant guilty of all charges and sentenced him to six months in the SHU, with a loss of commissary, packages, phone time, and a three-month loss of good time. The check was never cashed as the facility placed a stop payment on it and, ultimately, Claimant's account was credited the $6,000. Claimant seeks damages for the "illegal" confinement, loss of privileges, and the emotional distress he has suffered as a result.
Claimant alleges that Lieutenant D. Wiernicki forged Claimant's signature on the form, sent it to a post office box, with a hand written letter to Claimant's father to be sent with the check indicating that the money was for "Abuela's" medical bills. Claimant asserts that the names in the letter involve his deceased grandmother and other names he does not recognize.
It is Defendant's position that the claim fails to state a cause of action because the Defendant is entitled to absolute immunity for discretionary decisions involving disciplinary matters within the prison setting. Defendant relies on Arteaga v State of New York, 72 NY2d 212 to support its position.
As a general rule, correction officers have absolute immunity for discretionary and quasi-judicial actions involving security and disciplinary activities in the prison. The Court of Appeals in Arteaga, held that in situations where governmental action "involves the conscious exercise of discretion of a judicial or quasi-judicial nature" absolute immunity will attach to those decisions where the "exercise of reasoned judgment . . .could typically produce different acceptable results." (Arteaga, 72 NY2d at 216). This is true even if the disciplinary decision is later reversed (Arteaga, 72 NY2d at 220). However, the blanket of immunity is waived if the State fails to comply with its own due process safeguards set forth in its rules and regulations (Arteaga, 72 NY2d at 220-221).
Two cases were actually consolidated for appeal,
On a motion to dismiss a claim, the Court must accept the facts alleged in the claim as true and give claimant the benefit of any favorable inference (Leon v Martinez, 84 NY2d 83, 87[1994]; Daley v County of Erie, 59 AD3d 1087 [4th Dept 2009]). In this case, Claimant has alleged specific and at least minimally sufficient facts to withstand a motion to dismiss the claim.
Section 254.1 of the Rules and Regulations for the Department of Corrections and Community Supervision (7 NYCRR § 254.1) provides that persons who actually witnessed the incident, were directly involved in the incident, acted as a review officer for the misbehavior report, or investigated the incident shall not be appointed as a hearing officer to conduct the Superintendent's Hearing. The hearing officer who presided over Claimant's Superintendent's Hearing on March 31, 2008, was the same individual who signed the check to Pedro Rojas for $6,000 from Claimant's inmate account. This raises the question whether Sheila Marlenga should have been the hearing officer for Claimant's Superintendent Hearing involving the disbursement of the $6,000. Claimant also alleges that not all of the hearing was recorded. Section 254.6 (a) (2) requires that the entire hearing must be electronically recorded (7 NYCRR § 254.6 [a] [2]). Claimant alleges that his father's testimony is missing from the transcript and recording of the hearing and, thus, was not subject to review by the appeal process. Based upon these allegations, Claimant has set forth enough to defeat Defendant's motion.
Defendant's motion is DENIED. This claim is scheduled for trial on February 1, 2012, at 10:00 a.m., at the Court of Claims, 205 South Salina Street, Second Floor, Syracuse, New York.
October 3, 2011
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The following documents were considered in deciding this motion:
1) Notice of Motion.
2) Affirmation of Thomas Trace, Esquire, in support, with exhibits attached thereto.
3) Unsworn letter response of Steven Rojas, in opposition, with attachments.
Arteaga v State of New York and Treacy v State of New York.