Opinion
# 2016-041-021 Claim No. 122921 Motion No. M-87633 Cross-Motion No. CM-87990
04-27-2016
ALLEN WIGGINS #99-A-1334 v. THE STATE OF NEW YORK
ALLEN WIGGINS Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General
Synopsis
Claimant's motion for summary judgment is denied in wrongful confinement action based upon disciplinary determination which was reversed in claimant's Article 78 proceeding where claimant fails to show, as a matter of law, that defendant's quasi-judicial hearing immunity is abrogated by defendant's violation of disciplinary hearing regulation; defendant's cross-motion to dismiss wrongful confinement claim for lack of jurisdiction is denied where notice of intention to file a claim satisfied requirements of Court of Claims Act §§ 10 and 11 despite having been served prior to accrual of the claim.
Case information
| UID: | 2016-041-021 |
| Claimant(s): | ALLEN WIGGINS #99-A-1334 |
| Claimant short name: | WIGGINS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122921 |
| Motion number(s): | M-87633 |
| Cross-motion number(s): | CM-87990 |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | ALLEN WIGGINS Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 27, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves pursuant to CPLR 3212 for summary judgment as to defendant's liability for wrongfully confining claimant to the Special Housing Unit (SHU) at Clinton Correctional Facility (Clinton) as a result of an inmate disciplinary proceeding.
Defendant opposes the claimant's motion and cross-moves to dismiss the claim, asserting that the Court lacks jurisdiction over the claim, which was served more than ninety days after accrual of the wrongful confinement cause of action. Claimant has not opposed the defendant's cross-motion to dismiss the claim.
The defendant's cross-motion to dismiss the claim will be considered first.
The claim alleges that claimant was wrongfully confined to the SHU at Clinton for a period of six months as a consequence of a guilty determination issued after a Tier III prison disciplinary hearing completed on June 25, 2012. The claim further alleges that the Tier III determination was administratively affirmed on or about August 23, 2012 and that "[s]oon thereafter, Claimant filed a successful Article 78 C.P.L.R. proceeding." The record shows that the Clinton County Supreme Court Decision and Judgment granting claimant's Article 78 challenge to the disciplinary determination was signed and entered on May 13, 2013.
The claim alleges that claimant was confined to SHU "from 6/25/12 until 12/25/13." In view of the facts and time line set forth above, the Court finds that claimant was released from his mandated six months SHU confinement on December 25, 2012, rather than December 25, 2013 as alleged in the claim.
A claim for wrongful confinement 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]; Davis v State of New York, 89 AD3d 1287, 1287 [3d Dept 2011]).
The Court finds that claimant's confinement terminated, and his cause of action accrued, on December 25, 2012.
Court of Claims Act § 10 requires that a claim alleging tortious conduct (such as wrongful confinement) be served upon the attorney general within 90 days after accrual of the claim unless the claimant, within the 90 day period, serves upon the attorney general, either personally or by certified mail return receipt requested, a verified notice of intention to file a claim. Service of the notice of intention to file a claim extends the claimant's time to file and serve his claim for up to two years.
The notice of intention to file a claim must be properly verified and must set forth the time when and place where the claim arose in addition to stating the nature of the claim (Court of Claims Act 11 [b]).
Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 [2005]).
Here, the verified claim was served on the Attorney General on July 3, 2013, more than 90 days after accrual of the claim on December 25, 2012 and is untimely and jurisdictionally defective unless claimant had properly served a verified notice of intention to file a claim in compliance with Court of Claims Act §§ 10 and 11.
The record shows that claimant served a notice of intention to file a claim on the Attorney General by regular mail on October 1, 2012. This notice of intention to file a claim was defective however, because it was served by regular mail and failed to set forth the "time . . . such claim arose" (Court of Claims Act 11 [b]).
Claimant served a second notice of intention to file a claim on November 5, 2012. This notice of intention to file a claim a claim was verified and served by certified mail, return receipt requested. Defendant argues that this second notice of intention to file a claim is defective because it was served prior to "the date on which [claimant's] confinement terminated [December 25, 2012]" (Santiago,19 AD3d at 1062) and thus, prior to accrual of the claim.
In his second notice of intention to file a claim, properly verified and lawfully served on November 5, 2012, claimant stated as follows:
"On 6/9/12 I ALLEN WIGGINS WAS UNLAWFULLY CONFINE TO A SPECIAL HOUSING UNIT AFTER I WAS DENIED BY A HEARING OFFICER THE RIGHT TO CALL WITNESS IN MY BEHALF IN RESULT TO THIS VIOLATION I WAS GIVEN SIX MONTH SHU TIME AND LOSS OF ALL MY PRIVILEGES."
The law provides that, while absolute exactness is not necessary, the statement required by Court of Claims Act § 11 (b) should be sufficiently definite to allow the State to promptly investigate its potential liability under the circumstances (Demonstoy v State of New York, 130 AD3d 1337 [3d Dept 2015]). Courts have recognized that "treatment of the requirements of the notice of intention has historically not been as stringent as that of the claim" (Czynski v State of New York, 53 AD3d 881, 883 [3d Dept 2008], lv denied 11 NY3d 715 [2009]).
The notice of intention to file a claim at issue here identifies claimant as an inmate at Clinton, sets forth a specific date as to when his allegedly wrongful confinement commenced and adequately and succinctly describes the nature of the claim. In this regard, the Court notes that Court of Claims Act 11 (b) requires that claimant state the date when the claim "arose" rather than "accrued."
The Court recognizes that using the terms "arose" and "accrued" interchangeably may cause confusion, as acknowledged in Huff v State of New York (47 Misc 2d 1053 [Ct Cl 1965], modified 27 AD2d 892 [3d Dept 1967]):
"[A] distinction must be made between 'claim arises' and 'claim accrues.' The claim of false arrest and imprisonment arises or begins on the date of the false arrest and imprisonment and . . . the 90 day notice requirement commences to run as soon as the claimant is not under a legal disability, i.e., actual imprisonment."
The Court further notes that accrual of a wrongful confinement claim is a common-law concept rather than a statutorily defined event, and that the purpose of measuring accrual of a wrongful confinement cause of action from the claimant's release from confinement is to recognize the legal difficulty a confined claimant faces in interposing a claim. These points are illustrated by Justice Scalia in Wallace v Kato (549 US 384, 388-389 [2007]):
"Under those [common-law] principles, it is 'the standard rule that [accrual occurs] when the plaintiff has "a complete and present cause of action,"' Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997) (quoting Rawlings v. Ray, 312 U.S. 96, 98, 61 S.Ct. 473, 85 L.Ed. 605 (1941)), that is, when 'the plaintiff can file suit and obtain relief,' Bay Area Laundry, supra, at 201, 118 S.Ct. 542. There can be no dispute that petitioner could have filed suit as soon as the allegedly wrongful arrest occurred, subjecting him to the harm of involuntary detention, so the statute of limitations would normally commence to run from that date . . .
The running of the statute of limitations on false imprisonment is [however] subject to a distinctive rule--dictated, perhaps, by the reality that the victim may not be able to sue while he is still imprisoned: 'Limitations begin to run against an action for false imprisonment when the alleged false imprisonment ends.' 2 H. Wood, Limitation of Actions §187d (4), p. 878 (4th rev. ed. 1916); see also 4 Restatement (Second) of Torts §899, Comment c (1977); A. Underhill, Principles of Law of Torts 202 (1881)"
(Emphasis supplied).
Yet here, the defendant relies upon the release date accrual rule as a basis to dismiss a claim which otherwise complies with statutory requirements and as to which no credible claim of prejudice to defendant is made. Defendant conflates the date of accrual of claimant's wrongful confinement cause of action (release from confinement), which triggers running of the 90 day filing and service limitation period, with the date claimant's cause of action "arose" (the date claimant was first wrongfully confined).
Taking defendant's position to its logical extreme, a defendant who wrongfully confines a claimant in perpetuity could never be served with a jurisdictionally valid wrongful confinement claim or notice of intention to file a claim because the cause of action could not accrue until the claimant's confinement terminated.
In St. Paul Fire & Mar. Ins. Co. v. State of New York (99 Misc 2d 140 [Ct Cl 1979]), the court considered whether the claimant's filing of a notice of intention prior to the legal accrual of the claim "was sufficient to preserve its rights under the Statute, thereby affording claimant two years from the date of accrual to file its claim." The St. Paul court found, at 148, that:
"The purpose of the filing requirements of section 10 of the Court of Claims Act is to provide notice to the State of claims against it, and of claims intended to be filed in the future. This is the prime consideration in determining whether substantial compliance with the Statute has been made. Consequently, the fact that . . . such claim had not technically 'accrued' does not detract in the slightest from its effectiveness in providing notice to the State."
This Court agrees with the reasoning set forth above in St. Paul and with the holding in Budgar v State of New York (98 Misc 2d 588 [Ct Cl 1979]) in which the court considered a jurisdictional challenge to a notice of intention to file a claim alleging malicious prosecution. The Budgar court rejected the very same argument made by the defendant in the instant claim stating, at 592-593, as follows:
"The defendant attacks this cause of action on jurisdictional grounds. It contends that although the 'notice of intention', filed in this matter on October 4, 1974, was otherwise timely, it was premature in respect to the claim for malicious prosecution, since the same did not accrue until February 27, 1975, the date on which the criminal proceeding terminated. It is argued that, since the claimant failed to file a 'notice of intention' or 'claim' within 90 days from this date, the filing of the claim, on June 25, 1976, was not in accordance with subdivision 3 of section 10 of the Court of Claims Act.
No contention is advanced here that the 'notice of intention' did not give the required notice of the transactions on which the claim for malicious prosecution was based. In fact, with the exception of the technical date of accrual, it did give such notice. Rather, it is argued that the alleged premature filing did not toll the Statute of Limitations, and thus did not give the claimant the benefit of the statutory two-year period to file his claim pursuant to subdivision 3 of section 10 of the Court of Claims Act . . .
[T]he court believes that the rule here is otherwise . . . Therefore, this claim, filed within two years from the filing of the notice of intention, is timely."
The information set forth in claimant's second notice of intention to file a claim was sufficient to allow the defendant to promptly investigate its potential liability under the circumstances and the Court finds that the claimant's verified notice of intention to file a claim, served by certified mail, return receipt requested, on November 5, 2012, satisfied the requirements of Court of Claims Act §§ 10 and 11 and extended claimant's time to serve and file his claim.
The defendant's cross-motion to dismiss the claim as untimely is therefore denied.
Claimant's motion pursuant to CPLR 3212 for summary judgment as to defendant's liability for wrongfully confining claimant at Clinton as a result of the inmate disciplinary proceeding will be considered next. Defendant opposes the motion.
Claimant's affidavit supporting his summary judgment motion, and his claim, essentially allege that claimant was wrongfully confined, and denied certain privileges at Clinton, as a consequence of a guilty determination issued after a prison disciplinary hearing held on June 12 and June 25, 2012. The disciplinary determination found claimant guilty of assault, violent conduct and weapon possession. Claimant was sentenced to six (6) months confinement to the Special Housing Unit (SHU), among other penalties. Claimant was released from SHU on December 25, 2012.
Both prior to, and at the disciplinary hearing, claimant requested that a fellow inmate who was the alleged assault victim be called to testify at the hearing. According to defendant, the inmate witness refused to testify at the hearing.
The disciplinary determination was later reversed and remitted by a Clinton County Supreme Court Decision and Judgment, issued on May 13, 2013, in a CPLR Article 78 proceeding brought by claimant against defendant. The basis of the Supreme Court Decision and Judgment was the defendant's purported failure to comply with its own regulations regarding verification and documentation of an inmate witness's refusal to testify at a fellow inmate's disciplinary hearing.
The standard for review of the motion is well-established. "A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. . . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).
Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 31 AD3d 877 [3d Dept 2006]).
Summary judgment is "a drastic remedy" (Lebanon Val. Landscaping, v Town of Moriah, 258 AD2d 732, 733 [3d Dept 1999]). It "is the procedural equivalent of a trial . . . and should be granted only when it has been established that there is no triable issue of material fact" (Harris v State of New York, 187 Misc 2d 512, 517 [Ct Cl 2001]; see Paulin v Needham, 28 AD3d 531 [2d Dept 2006]).
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 [1975]; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).
With respect to whether a confinement is privileged, Holmberg v County of Albany (291 AD2d 610, 612 [3d Dept 2002], lv denied 98 NY2d 604 [2002]), instructs that: "Generally, where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged . . . and everyone connected with the matter is protected from liability for false imprisonment."
In the context of confinement pursuant to a prison disciplinary proceeding, such confinement is "privileged to the extent that it was under color of law or regulation, specifically in accordance with [inmate misbehavior] regulations" (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]).
The Court finds that claimant has met his initial burden to present a prima facie case of wrongful confinement based upon the defendant's failure to follow its own rules and regulations in conducting the disciplinary hearing, as demonstrated in the Supreme Court Decision and Judgment. In particular, claimant's proof shows that defendant failed to comply with 7 NYCRR 254.5, which codifies claimant's right to call materially relevant, non-cumulative witnesses on his behalf at the disciplinary hearing.
Defendant relies upon the quasi-judicial governmental immunity defense set forth in its answer. That defense provides that where employees of the Department of Corrections and Community Supervision, 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 CPLR 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 for money damages may be imposed if it is proven that the regulatory violation caused actual prejudice or injury to the inmate (see Davidson v State of New York, 66 AD3d 1089, 1089 [3d Dept 2009]; Vasquez v State of New York, 10 AD3d 825 [3d Dept 2004]).
Importantly, not all disciplinary hearing procedural rules and regulations, if violated, form a basis to abrogate the immunity afforded to employees of the Department of Corrections and Community Supervision in commencing and conducting formal inmate disciplinary proceedings. 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]).
In opposition to claimant's motion, defendant argues that claimant has made no attempt to establish, or even assert, that he was not guilty of the charges. Defendant further states that claimant has offered no evidence as to what the inmate witness would have said or how the fellow inmate's testimony would have altered the outcome of the hearing. Defendant points out that "Tier Hearing documents . . . show that corrections staff observed claimant making a 'slashing' movement towards another inmate, who was later found to have been cut. A razor type weapon was found in the area where claimant had been located."
The Court finds that the regulation violated by defendant (a regulation concerning the inmate's right to call witnesses at a disciplinary hearing) implicated minimal due process protections but further finds that claimant's motion papers fail to prove, as a matter of law, that the failure to produce the requested witness caused actual prejudice or injury to claimant at the disciplinary hearing.
Accordingly, the Court finds that claimant has failed to demonstrate, as a matter of law, that he was wrongfully confined and entitled to money damages by reason of the defendant's violation of a disciplinary hearing regulation.
Claimant's motion for summary judgment is denied.
April 27, 2016
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion for Summary Judgment, filed November 16, 2015; 2. Affidavit of Allen Wiggins, sworn to October 15, 2015, and attached exhibits; 3. Defendant's Notice of Cross-Motion to Dismiss, filed January 25, 2016; 4. Affirmation of Douglas R. Kemp, dated January 25, 2015 [sic], and annexed exhibits.