Opinion
# 2015-038-580 Claim No. 126058 Motion No. M-86843
12-02-2015
WILLIAM SAPPv. THE STATE OF NEW YORK
WILLIAM SAPP, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Thomas R. Monjeau, Assistant Attorney General
Synopsis
Claimant's motion for summary judgment on claim for wrongful confinement in SHU granted in part. Claimant did not establish his right to summary judgment as a matter of law for the confinement from its initiation to the date of administrative reversal, as he made no showing that defendant violated any regulation in the conduct of the disciplinary proceeding. However, summary judgment was granted on that part of the claim asserting wrongful confinement for the days following the administrative reversal, as defendant offered no evidence that would demonstrate that the continued confinement was privileged.
Case information
| UID: | 2015-038-580 |
| Claimant(s): | WILLIAM SAPP |
| Claimant short name: | SAPP |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126058 |
| Motion number(s): | M-86843 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | WILLIAM SAPP, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Thomas R. Monjeau, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 2, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, has filed this claim in which he asserts that he was wrongfully confined in a Special Housing Unit (SHU) at Upstate Correctional Facility because the finding of guilt on his misbehavior report was administratively reversed. The claim alleges that claimant was wrongfully confined in the SHU for 78 days, from January 20, 2015 through April 6, 2015, including the five days from the administrative reversal of his disciplinary proceeding on April 2, 2015 until his transfer back to general population on April 6, 2015. Claimant moves for summary judgment on the claim, and defendant opposes the motion.
It is well established that a movant for summary judgment must establish, by proof in admissible form, the right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (Alvarez v Prospect Hosp.; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). A movant for summary judgement on a cause of action for wrongful confinement must establish prima facie that there was an intentional confinement of claimant by defendant, that claimant was aware of and did not consent to the confinement, and that the confinement was not privileged (see Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]; Broughton v State of New York, 37 NY2d 451, 456-457 [1975], cert denied sub nom. Schanbarger v Kellogg 423 US 929 [1975]; see also Nazario v State of New York, 75 AD3d 715, 718 [3d Dept 2010], lv denied 15 NY3d 712 [2010]).
In his affidavit in support of summary judgment, claimant asserts that he was found guilty of certain misbehavior charges arising from an incident in the facility gym, but that he was denied his right to call witnesses pursuant to 7 NYCRR § 254.5 (a) because an allegedly exculpatory videotape of the incident was unavailable notwithstanding a directive that requires records of the Department of Correction and Community Supervision (DOCCS) to be retained for three years (Sapp Affidavit, ¶¶ 5-12). Claimant asserts that his administrative appeal was based upon the absence of the videotape (see id. ¶ 13), that the hearing officer's determination was reversed on April 2, 2015 (see id. ¶ 14; Exhibit F), and that he was not transferred out of the SHU until April 6, 2015 (see id. ¶ 16). He argues that his confinement was not privileged because the hearing officer failed to comply with 7 NYCRR § 254.5 (a) (see id. ¶ 17). Defendant argues that claimant has failed to meet his initial burden of proof because the claim does not assert an accrual date (see Monjeau Affirmation, ¶ 10), and because defendant did not violate its record retention policy or other regulations (see id. ¶¶ 11, 12, 15), its confinement of claimant in the SHU was privileged (see id. ¶¶ 13, 19). Defendant further asserts that claimant has not shown his entitlement to damages, as defendant is entitled to immunity for the period of claimant's confinement in the SHU until the administrative reversal (see id. ¶¶ 14, 16), and that claimant has failed to demonstrate that he, in fact, remained in SHU for any period of time after the administrative reversal (see id. ¶ 17).
The motion is supported by evidence in admissible form - claimant's affidavit - which contains factual allegations that claimant disputed the charges in the inmate misbehavior report, and that after he was found guilty, he was confined in the SHU until April 6, 2015. These facts are sufficient to demonstrate that defendant intentionally confined claimant with his awareness and without his consent. Thus, the focus of this decision turns to whether the confinement of claimant was privileged or whether defendant is entitled to absolute immunity from liability for claimant's wrongful confinement.
Defendant's contention that claimant has not shown entitlement to judgment as a matter of law because the claim does not state an accrual date is without merit. A claim for wrongful excessive confinement in the SHU accrues on the date claimant was released from the SHU (see Cooper v State of New York, UID No. 2013-038-563 [Ct Cl, DeBow, J., Oct. 7, 2013]). Here, the claim clearly alleges that claimant's allegedly wrongful confinement in the SHU ended on April 6, 2015 (see Claim No. 126058,¶¶ 2, 12, 13), as does claimant's affidavit in support of his motion for summary judgment (see Sapp Affidavit, ¶¶ 16, 17).
Claimant's submission on his motion does not specifically address whether defendant lacked privilege to place him in the SHU. Defendant's confinement of claimant in the SHU is privileged if it was accomplished in accordance with 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]). Further, 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). Claimant argues that the hearing officer violated his "conditional due process right to call witnesses on his behalf" (Supporting Memorandum of Law) in accordance with 7 NYCRR § 254.5 (a), such that defendant is not entitled to immunity. To the extent that this pro se claimant argues that a DOCCS regulation was violated, such may also implicate the question of privilege.
Claimant's assertion of a regulatory or due process violation does not provide a basis for awarding summary judgment in this matter, for several reasons. First, the videotape that he argues should have been viewed by the hearing officer is evidence, but it is not a "witness" within the meaning of 7 NYCRR § 254.5 (authorizing inmates to call witnesses to testify at superintendent's disciplinary hearings) (compare Matter of Massop v LeFevre, 127 Misc 2d 910, 912 [Sup Ct, Clinton County 1985] [construing a videotape as a witness]). Moreover, even if a regulatory provision requires that a videotape be preserved and/or produced at a disciplinary hearing to comply with a regulatory provision, the claim itself alleges that there was testimony at the hearing that the video camera malfunctioned and did not record the incident (see Claim, ¶ 8), and thus, the videotape was unavailable to be preserved or produced. Absent evidence in admissible form that raises a material issue of fact about why the videotape was not produced or citation to the correct regulatory provision that requires the videotape to be produced, claimant has failed to establish that there was a regulatory violation. Accordingly, he has not raised an issue of fact as to defendant's lack of privilege or its claim of absolute immunity, and thus, he has not demonstrated his entitlement to judgment as a matter of law for the period of time that he was confined in the SHU from January 20, 2015 to April 2, 2015, when the disciplinary determination was administratively reversed. Accordingly, claimant's motion for summary judgment will not be granted with respect to this period of time.
In claimant's submission in reply to defendant's opposition to the motion, he recharacterizes defendant's duty vis-a-vis the videotape as being "incumbent upon the State to have used competent video equipment" (Claimant's Reply Affidavit, ¶ 9). That, however, is not an allegation in the claim, nor does claimant point to any statutory or regulatory provision that was violated by a camera malfunction.
It bears mentioning that this denial of claimant's motion should not be construed as a finding that defendant's actions for this time period were, or were not, privileged or that defendant is immune from liability.
Claimant has, however, made a prima facie showing by proof in admissible form that he was wrongfully confined for a period of four days after the administrative reversal of the disciplinary determination. Claimant has demonstrated that the disciplinary determination was "reviewed and reversed on April 2, 2015" (Sapp Affidavit, Exhibit F), and that he was not released from the SHU until April 6, 2015 (see Verified Claim, ¶¶ 2, 13). As recently stated:
Inasmuch as the verified claim and claimant's initial affidavit in support of the motion assert that his release from SHU occurred on April 6, 2015, his effort in his reply affidavit to extend that date of release to April 7, 2015 (see Claimant's Reply Affidavit, ¶ 4; Exhibit 2) is not compelling, absent a motion to amend the claim. --------
After a finding of misbehavior is reversed and expunged, the requirement to release an inmate from the SHU is a ministerial act, not privileged or protected by any immunity (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]). Although the reality of the prison setting, and the unique concerns and necessary considerations that must be made to either return an inmate to the general population, or to arrange for a transfer to another correctional facility, may in some circumstances create "logistical difficulties" that prevent the inmate's immediate release from the SHU, the burden is on Defendant to come forward with the reason for the delay (see Applegate v State of New York, UID No. 2002-011-109 [Ct Cl, McNamara, J., July 8, 2002]; see also Ruggiero v State of New York, UID No. 2010-015-187 [Ct Cl, Collins, J., Nov. 1, 2010];
Malik v State of New York, UID No. 2007-038-557 [Ct Cl, DeBow, J., Sept. 10, 2007])
(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]). In opposition to the motion, defendant disputes the proof submitted by claimant (see Monjeau Affirmation, ¶ 17), but it offers no argument or proof in admissible form that the delay was occasioned by any concerns, considerations or logistical difficulties, or that notice of the administrative reversal was not timely received by the proper party, nor does defendant assert any statutory or regulatory authority to keep claimant in the SHU after the reversal of the disciplinary disposition. Thus, to the extent that such assertions would constitute a privilege to keep claimant in SHU beyond April 2, 2015, defendant has failed to raise a material issue of triable fact, and claimant is therefore entitled to summary judgment on the issue of liability for wrongful excessive confinement in the SHU from April 2, 2015 to April 6, 2015.
Accordingly, it is
ORDERED, that claimant's motion number M-86843 is GRANTED IN PART, and defendant is found liable for four (4) days of wrongful confinement in the Special Housing Unit, and it is further
ORDERED, that the Chief Clerk shall enter an interlocutory order to this effect, and it is further
ORDERED, that a trial on the issue of defendant's liability for wrongful confinement in the SHU from January 20, 2015 to April 2, 2015, and on the issue of damages for periods of
wrongful confinement for which defendant is liable will be scheduled in due course, and it is further
ORDERED, that claimant's motion is DENIED in all other respects.
December 2, 2015
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim No. 126058, verified April 24, 2015 and filed April 29, 2015; (2) Verified Answer, filed June 3, 2015; (3) Notice of Motion, dated June 12, 2015; (4) Affidavit of William Sapp in Support of Motion for Summary Judgment, sworn to June 12, 2015, with Exhibits A-F; (5) Affirmation of Thomas R. Monjeau, AAG, in Opposition, dated July 7, 2015; (6) Reply Affidavit of William Sapp, sworn to July 21, 2015, with Exhibits 1-2.