New York State Court of Claims

New York State Court of Claims

LAMAGE v. STATE OF NEW YORK, #2006-041-508, Claim No. 108580


Synopsis

Claimant’s several claims are dismissed. Primarily, claim for wrongful confinement based upon disciplinary determinations which allegedly imposed simultaneous penalties of keeplock and loss of recreation in violation of regulations is dismissed where evidence showed that claimant failed to request recreation time on a daily basis as required.

Case Information

UID:
2006-041-508
Claimant(s):
EDWIN LAMAGE
Claimant short name:
LAMAGE
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108580
Motion number(s):

Cross-motion number(s):

Judge:
Frank P. Milano
Claimant’s attorney:
Edwin LamagePro Se
Defendant’s attorney:
Hon. Eliot Spitzer,
Attorney General of the State of New York
By: Michael Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 11, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant Edwin Lamage, in bringing claim No. 108580, is essentially making several claims, denominated as "Causes of Action," within the one claim. Prior to trial, two of claimant's causes of action were dismissed. Four causes of action remain.
The first cause of action alleges claimant was wrongfully confined to keeplock status at the Clinton Correctional Facility (Clinton) from August 26, 2003 to September 24, 2003. The claim alleges defendant failed to timely serve claimant with an inmate misbehavior report (IMR) prior to the commencement of his disciplinary hearing which resulted in a finding of misbehavior and confinement to 30 days keeplock. The claim further alleges the disciplinary hearing investigation was conducted by an officer lacking authority to perform that task. Trial testimony and proof was limited to the issue of whether there was proper service of the IMR prior to claimant's disciplinary hearing. Accordingly, the Court will limit itself to the consideration of that issue alone in assessing what, if any, defendant liability exists.
The second cause of action alleges defendant illegally restrained claimant in "mechanical restraints" as he was brought to and from his cell to the disciplinary hearing referred to above. The hearing was conducted over two days, September 1, 2003 and September 8, 2003, and claimant alleges illegal restraint by defendant on both of those dates.
The claimant's third and fifth causes of action (identified as III and V, respectively, in his claim) are of an identical nature, differing only as to the location where each arose and the number of days claimant alleges he was improperly deprived of one hour of recreation per day. The third cause of action alleges defendant illegally denied claimant one hour of recreation time per day for 16 days, from September 9, 2003 to September 24, 2003, at Clinton. The fifth cause of action alleges defendant illegally denied claimant one hour of recreation time per day for 27 days, from May 18, 2003 to June 13, 2003, at Auburn Correctional Facility (Auburn).
In each case, claimant alleges defendant, after a disciplinary hearing, confined him to keeplock status and, additionally, improperly deprived him of one hour of recreation time per day for portions of the time he was in keeplock status. He alleges that notwithstanding his keeplock status he remained entitled to the daily recreation period.
The Court will first address a procedural matter. The defendant’s answer alleges that the Court “lacks jurisdiction over the claim as it was not filed with the Clerk of the Court of Claims, pursuant to Section 11 (a) of the Court of Claims Act.” The answer does not state with particularity in what manner the claim was not filed properly.
Court of Claims Act § 11 (c) provides as follows:
“Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in subdivision a of this section, . . . is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”
In Knight v State of New York (177 Misc 2d 181, 183 [Ct Cl 1998]), the court explained that:
“Prior to the enactment of subdivision (c) of section 11 (L 1990, ch 625), the service and filing requirements of Court of Claims Act § 11 were treated as issues of subject matter jurisdiction which could be raised at any time, even if not pleaded in the answer or raised in a preanswer motion . . . . The time limitations set forth in Court of Claims Act § 10 were accorded the same status . . . .

The memoranda contained in the Bill Jacket of chapter 625 of the Laws of 1990 which enacted section 11 (c) clearly disclose that the primary purpose of the Legislature in enacting the subdivision was to remove the time limitations of section 10 and the service and filing requirements of section 11 from the realm of subject matter jurisdiction by making departures from the statutory requirements waivable.”
Although the defendant preserved its jurisdictional objection as a defense in its answer, it failed to mention, and therefore failed to prove, the defense at trial. The defense was waived (see Williams v State of New York, 2005 NY Slip Op 52281[u]; UID #2005-030-950
[1]
[Ct Cl 2005]).
Claimant's first cause of action alleges wrongful confinement to keeplock status at Clinton for 30 days, from August 26, 2003 to September 24, 2003. The claim alleges that defendant failed to timely serve him with an IMR at least 24 hours in advance of September 1, 2003, which was the commencement date of his disciplinary hearing (the ultimate disposition of which resulted in a finding ordering claimant to 30 days keeplock), in violation of State of New York Department of Correctional Services Directive 4932, admitted in evidence as exhibit 1, found at 7 NYCRR 253.6 (a).
Introduced as defendant's exhibit A is the IMR in question, dated August 26, 2003. It charges claimant with the rule violations of "fighting" and "disturbance." Introduced as defendant's exhibit B is a "Case Data Work Sheet," dated August 26, 2003, signed by Correction Officer John Martin, indicating that claimant was served with the IMR (and a religious services informational sheet) on August 27, 2003 at 10:05 a.m., noticing claimant's disciplinary hearing for September 1, 2003.
Correction Officer Martin testified that during 2003 his duties at Clinton involved the service of IMRs (via hand delivery) and logging the date and time of service. Based upon his review of defendant's exhibit B, Correction Officer Martin testified to having personally delivered the IMR dated August 26, 2003 to claimant on August 27, 2003 at 10:05 a.m. Claimant disputes such service claiming never to have received the IMR at that time.
It is undisputed that claimant's disciplinary hearing was commenced on September 1, 2003, that he was offered an IMR by defendant at the hearing, that he refused it, and although present, that he refused to participate in the hearing. Further undisputed is that the hearing was reconvened on September 8, 2003 and that ultimately, claimant was found guilty, the charges were sustained and claimant was ordered to 30 days keeplock as a result.
There was absolutely no testimony, nor is there any evidence in the record, addressing why inmate Lamage was offered the IMR at the commencement of the disciplinary hearing on September 1, 2003 (for example, that it was offered as a matter of practice or, potentially, to address a claim by Mr. Lamage of not previously having received the IMR), what transpired at the hearing of September 1, 2003 (for example, whether proceedings went forward on the merits, or housekeeping matters such as witness availability or other procedural issues were discussed, or whether the matter was adjourned to September 8, 2003 to afford claimant additional time to prepare) or indeed, whether claimant participated in the reconvened hearing on September 8, 2003.
The Court will not engage in speculation. It is the obligation of the claimant to prove by a preponderance of the credible evidence that his set of facts are so and that in establishing them, he is entitled to recovery. Claimant has, for a number of reasons, failed to do so. Accordingly, claimant's first cause of action is dismissed.
There is contradictory evidence about whether Correction Officer Martin personally served claimant with the IMR on August 27, 2003 at 10:05 a.m. Claimant says not, Correction Officer Martin claims so. Based upon a review of the exhibits, the Court's observations at trial and the demeanor of the witnesses, the Court credits Correction Officer Martin on this point.
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]). Claimant failed to prove that defendant violated the regulation requiring service of the IMR 24 hours prior to his hearing; thus, the actions taken in the disciplinary proceeding are absolutely immune from liability.
Moreover, even were the Court to have found a failure of service of the IMR until September 1, 2003, it is undisputed the claimant was offered and refused service on that day. Claimant failed, completely, to demonstrate that any such transgression in service of the IMR, if found, prejudiced him or would have resulted in a different conclusion to the disciplinary hearing.
Further, the transgression in service, if found, may well have been remediated by the adjournment of the disciplinary hearing to September 8, 2003. Again, it was claimant's obligation, an obligation which he failed to keep, to prove by a preponderance of the credible evidence that an uncured violation of § 253.6(a) occurred, that it prejudiced him and that, but for the violation, the result or outcome of the disciplinary hearing would have been different.
Finally, even were the Court to have found there to have been untimely service of the IMR and that late service prejudiced him, claimant would nevertheless have failed to prove his first cause of action. In order to prove wrongful confinement, it was claimant's obligation, ultimately, to demonstrate that the results of the disciplinary hearing, a finding of guilt, were wrong or unsupported and that, in fact, claimant was innocent of the charges brought against him.
This point is illustrated in Mabry v State of New York (#2001-013-514, Patti, J.) in which the court, assuming a violation of the governing hearing regulations, explained that:
"Proof of such a rule violation removes the protection of absolute immunity from the disciplinary proceeding, but the inmate must still prove his or her case on its merits (Kilpatrick v State of New York, Ct Cl, Dec. 21, 2001 [Claim No. 100462 - Motion No. 64030], Patti J. [MacLaw No. 2001-013-031]; Moreno v State of New York, Ct Cl, April 5, 2001 [Claim No. 100335], Bell, J. [MacLaw No. 2001-007-551]). Even if the investigating officer's failure to interview the named witnesses was a clear violation of a governing rule or regulation, Claimant has nevertheless failed to prove that he was, in fact, innocent of all of the charges brought against him. . . . Consequently, Claimant has not met his burden of proving that his confinement in keeplock was wrongful and he is not entitled to damages."
The point is again made in Jones v State of New York (#2005-019-040, Lebous, J.):
"'Although establishing that defendant did not follow its own rule removes immunity from the case, it does not result in absolute liability of defendant [citation omitted]. Claimant still must prove the merits of his claim [citation omitted]' (Moreno v State of New York, Ct Cl, April 5, 2001, Bell, J., Claim No. 100335 [UID No. 2001-007-551]). . . . Here, claimant offered no credible proof that he did not commit the underlying offense with which he was charged. (Moreno, Ct Cl, April 5, 2001, Bell, J., Claim No. 100335 [UID No. 2001-007-551]). Thus, without more, the court cannot satisfy itself that claimant was wrongfully confined."
Not one word of testimony, not one piece of evidence, addressed the issue of whether the findings of the hearing officer at claimant's disciplinary hearing, in sustaining the violations brought against claimant, were correct, incorrect, supported or unsupported. No proof that claimant was innocent of the violations charged was provided. Accordingly, if for no other reason, irrespective of the IMR service issue, claimant's first cause of action must fail, and it is dismissed.
Claimant's second cause of action, alleging he was illegally restrained by defendant in mechanical restraints as he was moved to and from his cell to the disciplinary hearing commenced at Clinton on September 1, 2003 and thereafter continued on September 8, 2003, is dismissed.
Claimant relies upon State of New York Department of Correctional Services Directive 4932, admitted in evidence as exhibit 2, which is found in 7 NYCRR Part 250, to prove defendant illegally restrained him. To the contrary, it imbues defendant with the discretion to restrain claimant as he was restrained on September 1, 2003 and September 8, 2003.
Directive 4932 (identified in exhibit 2 as 7 NYCRR 250.2 [g], but actually found at 7 NYCRR 250.2 [h]) reads: "Mechanical means of physical restraint must never be used for disciplinary purposes. Mechanical means of physical restraint may be used only when necessary while transporting inmates within or outside of the facility, or on orders of the facility Superintendent, and/or a physician when either deems it necessary to prevent injury to the inmate or to others."
No testimony was given alleging that the defendant restrained claimant on September 1, 2003 and September 8, 2003 for disciplinary purposes. Further, claimant incorrectly cited exhibit 2 as permitting the use of mechanical restraints only upon the order of the superintendent or a physician. In fact, the cited regulation additionally authorizes the defendant to use such restraints within its discretion, "when necessary," to transport inmates within or outside of the facility.
The facility superintendent has discretion to “provide for such measures as he may deem necessary or appropriate for the safety, security and control of correctional facilities” (see Correction Law § 137[2] and § 18[2]; see Shabazz v Portuondo, 260 AD2d 733 [3d Dept 1999], lv denied 94 NY2d 756). In general, courts should defer to prison authorities in matters of internal prison security (Blake v Selsky, 10 AD3d 774, 775 [3d Dept 2004]).
As the court explained in Arteaga v State of New York (72 NY2d 212, 218-219 [1988]):
“Because of the problems of maintaining security and discipline within correctional facilities, the discretion delegated to the employees and officers is necessarily comprehensive and calls for the exercise of judgment under widely varying conditions. What, if any, disciplinary action to take in a given situation is a matter requiring consideration of broad policies and general objectives in the application of the governing rules and regulations to the particular circumstances.”
Defendant lawfully used its discretion in choosing to restrain claimant with mechanical restraints on September 1, 2003 and September 8, 2003 as he was brought to and from his disciplinary hearing. Claimant's second cause of action is dismissed.
Claimant's third and fifth causes of action claim that on two separate occasions, as a result of disciplinary hearing determinations, he was improperly denied one hour of recreation time per day while in keeplock status. There was no dispute at trial that inmates, while on keeplock, remain entitled to one hour of recreation per day. That policy was confirmed by Correction Officer Roger Hoyt upon cross-examination and by Department of Corrections Directive 4009 (7 NYCRR 1704.6), admitted in evidence as exhibit 3.
Notwithstanding that policy, claimant alleges that Hearing Officer Armitage, having presided over claimant's disciplinary hearing, improperly ordered that claimant lose recreation privileges at Clinton while he was also ordered to keeplock, resulting in a denial of one hour of recreation per day from September 9, 2003 to September 24, 2003, a total of 16 days. Similarly, claimant alleges that Hearing Officer Head did the same at Auburn, resulting in a denial of one hour of recreation per day from May 18, 2003 to June 13, 2003, a total of 27 days.
Both parties also acknowledged, without dispute, that in order to receive an hour of recreation per day, an inmate in keeplock must, on a daily basis, request it. As to claimant's third and fifth causes of action, defendant maintains that claimant never requested daily recreation (but for one day) while confined to keeplock during the time periods in question at Clinton and at Auburn. Claimant testified to requesting recreation time at both Clinton and Auburn on the first day following the determinations of Hearing Officers Armitage and Head, being denied it based upon the terms of those determinations, and thereafter choosing not to again ask for recreation time while in keeplock.
Problematically, although claimant insists that two determinations of two different hearing officers, rendered at different times in different facilities, improperly ordered that he be denied recreation while in keeplock, he produced neither determination. Having done so would have accomplished several things. First, it would have enabled the defendant to defend the provisions of the determinations as lawful, or to explain how the terms of the determinations were to be interpreted or implemented. More importantly, it would have afforded the factfinder, the Court, the ability to view the terms of the determinations, interpret their meaning and to assess each party's arguments with regard to them. The failure to introduce them is a substantial evidentiary shortcoming of claimant's case.
For that reason, and for others hereafter discussed, claimant's third and fifth causes of action are dismissed.
Even had the hearing officers’ determinations been introduced into evidence and even had they contained terms as alleged by claimant, the Court would nevertheless have dismissed claimant's third and fifth causes of action.
Claimant is a seasoned litigator, clearly well versed in the procedures, policies and practices of the defendant. Claimant knows those things to which he is entitled and when he is entitled to them. These are skills and knowledge he clearly possesses and which he repeatedly demonstrated at trial, through his own testimony, through the cross-examination of defendant’s witnesses and through the content of the exhibits he chose to introduce into evidence (see, for example, exhibits 4 and 5, which are appeals of the hearing officers’ determinations and which detail, with particularity, no less than 16 cited regulations which claimant argues defendant transgressed).
The following facts were established at trial. Claimant knew that he had a right to one hour of recreation per day while in keeplock. Claimant knew that he had to ask for recreation each day while in keeplock in order to receive it. Claimant knew that if he was denied recreation, he had a right to file a grievance challenging the denial. Claimant did not, in fact, file a grievance over denial of recreation time at Clinton or Auburn. Claimant testified to having requested recreation time on September 9, 2003 at Clinton, being denied and not thereafter again requesting it, arguing that any further requests would have been fruitless given Hearing Officer Armitage’s determination denying him recreation while in keeplock. Contradicting that assertion, admitted in evidence as defendant's exhibit C, is the defendant’s recreation list which identifies claimant, housed at D Block, 4 Company, 3 cell, a fact acknowledged by claimant, as having asked for and having received recreation time on September 9, 2003 at Clinton. Correction Officer Hoyt testified that these records are kept to note an inmate having requested and having received daily recreation, and that exhibit C represents most of the relevant period of time, covering the claimant's block and company at Clinton. No other entry, denoting claimant's interest in requesting and receiving daily recreation from August 24, 2003 to September 15, 2003 at Clinton, is to be found in exhibit C. Claimant also testified to having made a request to recreate on May 18, 2003 at Auburn, being denied and not thereafter again requesting it, again arguing that any further attempt would have been fruitless given Hearing Officer Head's determination denying him recreation while in keeplock.
For all the foregoing reasons, the Court discredits claimant's testimony that he requested and was denied one hour of recreation on either September 9, 2003 at Clinton or on May 18, 2003 at Auburn. It simply strains credulity to believe that this claimant, knowing all that he knows, knowing all to which he was entitled and knowing his recourse in those cases where his entitlements were denied, chose not to request his daily entitlement to recreation more than a single, solitary time (at each facility), nor having, as he claims, been denied the ability to recreate, chose not to prosecute his rights by filing a grievance. Accordingly, the Court finds that claimant simply chose to exercise his right not to exercise, and that during his keeplock time at Clinton and Auburn elected, as was his acknowledged right, not to request one hour of recreation per day.
Moreover, even were the Court to have found claimant made the requests on September 9, 2003 at Clinton and May 18, 2003 at Auburn for one hour of recreation, and were to have further found defendant improperly denied that to claimant, the Court would nevertheless have limited claimant's damages to $10, $5 each for the denial of September 9, 2003 and the denial of May 18, 2003.
Both claimant and defendant testified that in order to receive recreation time each day, an inmate must affirmatively request it each day. Claimant testified to having made such a request only once with respect to each determination, arguing that the hearing officers' determinations would have rendered any further such requests fruitless. That assertion, however, was contradicted by the testimony of Correction Officer Hoyt, who testified that notwithstanding the existence of a determination seeking to deny recreation time to a keeplocked inmate, that that inmate would nevertheless have been entitled to and would have received one hour of daily recreation. Accordingly, in order to prove claimant's position, which essentially reduces to an argument that to request one hour of recreation time on a daily basis, as required, after having initially been denied, would have been futile, it was incumbent upon claimant to simply do one of a number of things.
First, claimant could have taken, but did not, the simple step of making a second request, or placing his name on a recreation time request list on any day subsequent to the initial denial. While the Court is not suggesting that claimant had to present himself for recreation time each and every day for 43 days, only to await denial (indeed, such conduct could reasonably be interpreted to be insolent), the Court finds that a single denial of recreation time fails to demonstrate the inevitable futility of making the request. Something more is needed. This is especially so, given the testimony of Correction Officer Hoyt acknowledging the right of keeplocked inmates to receive one hour of recreation per day notwithstanding the existence of a determination to the contrary.
The claimant failed to make a second or third request to recreate at either Clinton or Auburn. Further, claimant failed to demonstrate in any manner, through, for example, the use of testimony or other evidence, that such requests would necessarily have been futile. Indeed, Correction Officer Hoyt's testimony was to the contrary. As such, the Court will not presume that defendant would have inevitably engaged in the practice of improperly denying claimant one hour recreation time while he was in keeplock status, without it having been requested of defendant beyond an alleged initial denial.
Claimant's third and fifth causes of action are dismissed. The claim is dismissed in its entirety.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.

December 11, 2006
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims




[1].This and other decisions of the Court of Claims may be found at the Court's website: www.nyscourtofclaims.state.ny.us.