Opinion
# 2013-041-002 Motion No. M-82303
02-20-2013
WILLIS L. WHITE v. THE STATE OF NEW YORK
Synopsis
Application to file late claim alleging wrongful confinement resulting from prison disciplinary hearing is denied as allegations fail to show that a valid cause of action exists. Case information
UID: 2013-041-002 Claimant(s): WILLIS L. WHITE Claimant short name: WHITE Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) Caption has been amended sua sponte to reflect the : proper defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): NONE Motion number(s): M-82303 Cross-motion number(s): Judge: FRANK P. MILANO Claimant's attorney: WILLIS L. WHITE HON. ERIC T. SCHNEIDERMAN New York State Attorney General Defendant's attorney: By: Jessica Hall, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: February 20, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6). Defendant opposes the motion.
Claimant's affidavit in support of the proposed claim states that claimant, an inmate at Clinton Correctional Facility, was confined to a Special Housing Unit (SHU), among other penalties, as a result of a disciplinary hearing held on June 25-26, 2012. The hearing concerned five (5) charges: Creating a disturbance; interference with an employee, refusing a direct order; wasting food; and a mess hall serving/seating violation.
At the close of the hearing, claimant was found guilty of all of the charges. Claimant administratively appealed the disciplinary determination and, on September 18, 2012, the charges of creating a disturbance and interference with an employee were dismissed by the Commissioner of the Department of Corrections and Community Supervision. The balance of the charges were sustained and the penalties remained in place.
The proposed claim alleges that claimant did not receive a fair hearing because defendant "disregarded their [sic] duty by negligently and carelessly permitting wrong charges" at the disciplinary hearing. The proposed claim further alleges that there were four witnesses to the underlying incident and that only two testified. Claimant also alleges that the hearing officer refused to provide "the name of the escord [sic] officer that escorded [sic] me from the messhall," although it appears that claimant's request for this information was made after the hearing.
Court of Claims Act § 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules."
The proposed claim alleges a cause of action sounding in wrongful confinement and such a claim accrues on "the date on which [claimant's] confinement terminated" (Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 [2005]), which, necessarily, was sometime after June 26, 2012. CPLR § 215 (3) provides a one-year period to commence an action for false imprisonment/wrongful confinement and the application is not time-barred by CPLR Article 2.
In determining the application, Court of Claims Act § 10 (6) provides that:
"[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."
In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).
Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], appeal denied 78 NY2d 852 [1991]).
Claimant's excuse for allegedly failing to timely file and serve a claim amounts to ignorance of the law and neither ignorance of the law nor "conclusory allegations that one is incarcerated and without access to legal references" constitute a reasonable excuse for untimely filing and service (Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002]).
Although claimant has failed to offer a reasonable excuse for his failure to timely file and serve the claim, "the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief" (Bay Terrace Coop. Section IV, Inc., 55 NY2d at 981).
The Court finds that the relatively short period of time which elapsed between the accrual date (sometime after June 26, 2012), and service of the application on or about October 12, 2012, together with the presumed existence of disciplinary hearing records, provide defendant ample opportunity to timely investigate the claim as the "delay was minimal and the respondent was not prejudiced thereby" (Matter of Hughes v State of New York, 25 AD3d 800 [2d Dept 2006]). In this regard, it is generally recognized that prejudice is more likely to result where a proposed claim involves conditions (such as ice or snow) which are "transitory in nature" Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]). The proposed claim does not arise from a transitory condition.
Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."
To establish that he was wrongfully confined, claimant must prove that "(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).
Where employees of the Department of Correctional Services, in commencing and conducting formal inmate disciplinary proceedings, "act under the authority of and in full compliance with the governing statutes and regulations . . . 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]; Varela v State of New York, 283 AD2d 841 [3d Dept 2001]). This immunity attaches even if the conviction is later reversed administratively or as the result of a successful article 78 proceeding (see Arteaga, 72 NY2d at 215).
If, however, prison officials fail to comply with a rule or regulation governing such disciplinary hearings, absolute immunity may be lost and liability may be imposed if it is proven that the regulatory violation caused actual injury to the inmate (Rivera v State of New York, UID #2006-028-008, Claim No. 102781 [Ct Cl, Sise, P.J., Feb. 8, 2006], citing Vasquez v State of New York, 10 AD3d 825 [3d Dept 2004] and Henderson v Coughlin, 163 Misc 2d 20 [Ct Cl 1994]).
Not all disciplinary hearing procedural rules and regulations, if violated, form a basis to abrogate the absolute immunity provided by Arteaga. The rule or regulation must implicate minimal due process protections:
"Notably, there is no right to counsel or to confrontation at prison disciplinary hearings. . . Nevertheless, an inmate is entitled to advance written notice of the charges against him; a hearing affording him a reasonable opportunity to call witnesses and present documentary evidence; a fair and impartial hearing officer; and a written statement of the disposition, including the evidence relied upon and the reasons for the disciplinary actions taken" (Sira v Morton, 380 F3d 57, 69 [2d Cir 2004]).
Claimant has not identified any specific statute or regulation violated by defendant in conducting the original hearing and imposing the penalty which implicates the minimal due process requirement to provide a fair hearing as required by Sira.
Further, Arteaga instructs that 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'" (72 NY2d at 216).
The modification of the initial hearing determination by the Commissioner on September 18, 2012 was apparently based upon the Commissioner's assessment of the sufficiency of the evidence rather than upon a failure of the defendant to follow applicable due process rules and regulations in conducting the hearing. This is precisely the type of discretionary decision-making that is entitled to immunity from liability (see McLean v City of New York, 12 NY3d 194 [2009]).
Based upon a balancing of the factors set forth in section 10 (6), the claimant's application is denied.
February 20, 2013
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion, filed October 18, 2012;
2. Affidavit of Willis White, sworn to October 12, 2012, and annexed exhibits;
3. Letter of Willis White, dated October 24, 2012;
4. Affirmation of Jessica Hall, dated October 31, 2012, and annexed exhibits.