New York State Court of Claims

New York State Court of Claims

HOOD v. THE STATE OF NEW YORK, #2007-013-032, Claim No. 108543, Motion No. M-72934


Synopsis

The loss of "good time" credit for the failure to have completed an Alcohol and Substance Abuse Treatment (ASAT) program is not actionable. Good time credits are neither earned nor mandatory, and the Time Allowance Committee's (TAC) actions are discretionary. There are questions of fact relating to the period of time following completion of the ASAT program, the request to the TAC for reinstatement of good time credits, and Claimant's ultimate release, and for those periods of time, summary judgment is denied.

Case Information

UID:
2007-013-032
Claimant(s):
DOUGLAS HOOD
Claimant short name:
HOOD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108543
Motion number(s):
M-72934
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant’s attorney:
OFODILE & ASSOCIATES, P.C.BY: ANTHONY C. OFODILE, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 28, 2007
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

Decision
On June 20, 2007, the following papers were read on motion by Defendant for summary judgment dismissing the claim:
Notice of Motion, Affirmation and Exhibits Annexed
Affirmation in Opposition with Exhibits Annexed
Reply Affirmation with Exhibits Annexed
Upon the foregoing papers, the motion is granted in part and denied in part.
The Defendant moves for dismissal and/or summary judgment of this claim which sounds in false imprisonment and the denial of Claimant’s liberty without due process of law under the New York State Constitution, Article I, Sec. 6, and under the Fifth and Fourteenth Amendments to the United States Constitution. It is alleged that claimant was wrongfully incarcerated for two years and four months more than he should have been, and compensatory damages for such period are sought.
An historical retrospective will provide a perspective of the allegations in the claim. Claimant was sentenced on November 21, 1984 to 8⅓ to 25 years in prison. It is not disputed that his initial conditional release date, two-thirds of his maximum sentence of 25 years, was November 5, 2000. Claimant acknowledges an intervening misbehavior report, relating to possession of alcohol in his cell, for which there was a 30-day loss of “earned” good time, and thus Claimant’s conditional release date allegedly would have been no later than December 5, 2000.
On or about June 21, 2000, while Claimant was incarcerated in Mid-Orange Correctional Facility, his Correctional Counselor offered him the opportunity to participate in and complete the Alcohol and Substance Abuse Treatment (ASAT) Program. There are opposing versions of what occurred next: one, that he waived participation, and the other that he declined participation. In conjunction with this motion, Claimant asserts that he responded that he did not care, but that the counselor should look at his folder because Claimant’s conditional release date was approaching, whereupon Claimant was told that he did not have enough time to complete the program, as it required a full six months to complete. Claimant avers that he then signed two “waiver” forms which the counselor also signed.
The ASAT Program Operations Manual in effect at that time contains as eligibility criteria whether there is a “willingness to participate” and a “[s]ufficient time to complete the formalized ASAT Program at the facility” (Exhibit 4 to the Affirmation in Opposition). Thus, it is clear that since Claimant’s conditional release date was less than six months from June 21, 2000, he could not meet that eligibility standard. While Claimant alleges that he signed “waiver” forms, the documentary submissions reflect that he signed an ASAT refusal form (Exhibit K to the motion). As will be seen below, it matters not whether the forms were waivers or refusals, although there are persuasive indicia that Claimant actually declined to participate, to wit, Paragraph 4 of the Claim where Claimant avers that he told the counselor that “he didn’t want to do the program.” Moreover, the Defendant references Claimant’s November 7, 2000 letter to Anthony J. Annucci, Counsel to the Department of Correctional Services, wherein he acknowledges, and provides a reason for, his refusal to participate in the ASAT Program (contained within Exhibit 12 to Claimant’s Affirmation in Opposition herein). Since Claimant has failed to address the apparent contradiction between the allegation in his verified claim, the actual signed refusal forms, his acknowledged “refusal” in the November 7, 2000 letter and the hypothetical waivers, his credibility suffers.
While Claimant avers that the signature on the refusal form was forged or “cut and pasted,” impliedly by the counselor, there is nothing to support such a contention beyond his bare allegation. Alberto Martinez, a Correction Counselor at Mid-Orange Correctional Facility, submits his affirmation (appended to Defendant’s reply papers) wherein he denies ever forging, superimposing or copying and pasting any inmate’s signature, and specifically denying the same as to Claimant. Similarly significant is the Defendant’s denial that any such waiver forms even exist, coupled with the Claimant’s failure to provide even a blank copy of such a form obtained through discovery.
Given Claimant’s suspect credibility, along with the absence of any support beyond his own allegations, I have given no weight to the contentions that his signature was falsely added to the forms in question.
In September 2000, Claimant was transferred to serve a disciplinary sentence in the Special Housing Unit at Orleans Correctional Facility. On September 25, 2000, Claimant was notified of an upcoming meeting of the Time Allowance Committee (TAC) at Orleans because they felt that “there may be sufficient reason not to recommend the granting of the total good time allowance authorized you.... Due to your refusal to participate in the A.S.A.T. program, most recently on 6/21/00, you are in non compliance with your program plan” (Exhibit 5 to Claimant’s opposing papers).
At that meeting on September 27, 2000, all of Claimant’s good time credit was withheld, because “[i]nmate is currently in SHU200 and is in need of ASAT programming which he refused on June 21, 2000. Upon release from SHU200 and successful completion of ASAT, he should contact the Time Allowance Committee for reconsideration” (Exhibit 2 to Claimant’s papers). The decision of the TAC was signed on September 27, 2000, by William Powers, Chairman, who was Deputy Superintendent of Programs, confirmed by the Superintendent on September 28, 2000 and affirmed by the Commissioner on October 10, 2000.
It appears that upon completion of his disciplinary sentence at Orleans, Claimant was then transferred to Wyoming Correctional Facility. On or about October 25, 2000, Claimant entered into and commenced the ASAT program at Wyoming, completing some 240 hours until his transfer to Fishkill Correctional Facility in December 2000 related to a previously recommended operation for cataracts in his right eye.
I digress here to discuss two aspects of Claimant’s objections relating to this transfer. He complains, inter alia, that he had been participating in an accelerated ASAT program at Wyoming which met in the mornings and the afternoons, thus purportedly permitting completion of the normal six-month program in three months. Leaving aside for the moment the delay of his admission into the ASAT program at Fishkill until June 17, 2002, he objects to the transfer since the accelerated program was not available at Fishkill, as well as the very necessity of the transfer for medical reasons. He implies that his transfer should have been made to a facility where the shortened program was available. However, the deposition testimony of Wendy Rosario, an ASAT counselor at Fishkill, revealed that the accelerated two times per day program was only a pilot program, and was stopped because, inter alia, it was not conducive to effective treatment (Claimant’s Exhibit 8, pp 16-17). Moreover, Claimant offers no authority that provides a basis for an inmate’s entitlement to transfer to a facility offering programs of his choosing.
Claimant also challenges the timing or necessity of his December 2000 transfer from Wyoming to Fishkill for his cataract surgery. He acknowledges that on or about June 16, 2000, his medical records disclose a referral for cataract surgery (Claimant’s Exhibit 17). Both he and his counsel express the lay opinion that the surgery could have been performed at Wyoming Correctional Facility, that it was not so urgent as to necessitate the disruption of Claimant’s ASAT program at Wyoming, and that the surgery could have been performed after Claimant’s release. These arguments are rejected. First, neither Claimant nor counsel provide any factual foundation for opining that this surgery could have taken place at Wyoming (and see the deposition of Deputy Superintendent Joan Smith, Exhibit H to Defendant’s papers, where she reviews records that conclude that Wyoming said that Claimant needed to go to another facility because Wyoming could not take care of his medical needs). More significantly, neither Claimant nor counsel have demonstrated that either possesses the medical expertise necessary to assess the “urgency”of the surgery.
Claimant resumed the ASAT program on June 17, 2002, and, having been granted “credit” for 240 hours at Wyoming prior to his transfer to Fishkill, he completed the program on November 11, 2002. Issues are raised with respect to the period between Claimant’s transfer in December 2000 and the resumption of the ASAT program on June 17, 2002. Claimant suggests that this constitutes an egregious delay. Defendant’s timeline in its motion papers casually elides over this roughly 18-month period, while Claimant provides, in Exhibit 20, numerous letters written by him and a series of responses, dated February 13, 2001, March 15, 2001, April 25, 2001, July 5, 2001, August 1, 2001, October 26, 2001, October 31, 2001, and finally from Ada Perez, Assistant Commissioner on February 8, 2002. The sum and substance of Defendant’s explanation is that every facility has an ASAT waiting list that is driven by the schedule of the Parole Board reviews, and since at that point in time Claimant had a Parole Reappearance scheduled for January 2003, he would have been assigned to ASAT from the waiting list in August 2002. Claimant has failed to provide any law, rule or regulation governing the prioritization of applicants for ASAT (Exhibit 4, the Program Operations Manual only discusses eligibility, not priorities), and he has failed to demonstrate any actionable conduct by the Defendant in utilizing prospective Parole Board appearances as the criteria for calling inmates on the ASAT waiting list.
Claimant also complains of the delay between his completion of the ASAT program on November 11, 2002, the same date as his first letter to the Fishkill TAC requesting reconsideration and restoration of his good time credit, and February 21, 2003, when the TAC met and restored six years of “good time,” establishing a new conditional release date of March 5, 2003 (Exhibit 26 to Claimant’s opposing papers). Claimant suggests that it was only his bringing of a Habeas Corpus petition (converted by that court to an article 78 proceeding and dismissed on timeliness grounds; see Claimant’s Exhibits 24 and 28 and Defendant’s Exhibit N) that prodded the TAC to schedule the review. Claimant has not provided any law, rule or regulation governing the time within which the TAC is required to meet after a written request is made, but see Executive Law §259(g)(1), infra.
Claimant was released on March 25, 2003. Part of this claim addresses the 20-day period of time between March 5 and March 25, 2003. It is not clear what caused the delay, but Defendant’s reliance on Executive Law §259(g)(1) does not provide a sufficient basis for dismissing this part of the claim. The statute states that “[w]ithin one month from the date any such application is received, if it appears that the applicant is eligible for presumptive release or conditional release or will be eligible for such release during such month, the conditions of release shall be fixed in accordance with rules prescribed by the board....” (see Deyver v Wilson, 2001 WL 1485630, Unreported, where the 2nd Circuit noted that that inmate had to be detained until he had signed his conditions of release). Query: Whether the one-month period of Executive Law §259(g)(1) commenced on February 21, 2003 or on March 5, 2003, and was the delay related to the papers that Claimant was required to have “agreed in writing to the conditions of release” (Executive Law §259[g][2])? It appears that Claimant remained incarcerated for at least 4 days and perhaps 20 or more days beyond the one month contemplated in §259[g][1]. And further query: Is Claimant’s November 11, 2002 written request for a TAC meeting (Claimant’s Exhibit 23) an “application” referenced in Executive Law §259(g)(1)?
It seems clear that the Claimant’s failure to have completed the Alcohol and Substance Abuse Treatment program affected Claimant’s actual release date, as he was denied all of his “good time” credit, and thus was not released on his then-existing conditional release date. At issue is whether Claimant’s participation in, and completion of, the ASAT program was required, and whether his failure to have completed the same legitimately and properly extended his opportunity to re-obtain his good time credit. It should be noted that Claimant had acknowledged his need for alcohol and drug counseling upon his entry into DOCS, that he completed an ASAT program in 1988 or 1989, that he recognized his problems with beer and marijuana (Defendant’s Exhibit F, pp. 8 - 10); that he had a subsequent problem when alcohol was found in his cell in 1998 (Defendant’s Exhibit J), which triggered the need for participation in another ASAT program, one that had not been completed when the Orleans TAC removed his good time credits. While Claimant has characterized the actions of the Orleans TAC as being illegal, it is “well-settled that a decision to withhold good time credit from an inmate because of his failure to participate in or to complete even a recommended (as opposed to required) program is rational and permitted under the statute [citations omitted]” and with respect to a claim for money damages arising from such decision, there may be entitlement to absolute immunity (Cooke v State of New York, UID #2006-028-603, M-71833, Claim No. 112238, Dec. 21, 2006, Sise, P.J.).[1]
Moreover, Correction Law §803(1)(a) establishes that good time allowances “may be granted for... progress and achievement in an assigned treatment program, and may be withheld, forfeited or canceled in whole or in part for bad behavior, violation of institutional rules or failure to perform properly in the duties or program assigned” and that the decision to grant, withhold, forfeit, cancel or restore such allowance “shall be final and shall not be reviewable if made in accordance with law” (Correction Law §803[4]).
Indeed, the primary case cited in support of Claimant’s position, Matter of Staples v Goord (263 AD2d 943, 944), reiterated “that any decision affecting good time allowances shall not be reviewed so long as it is made in accordance with the law... upon the inmate's entire institutional experience,” finding there that withholding good time allowance because petitioner had not completed sex offender counseling was not unreasonable, and the argument that the failure to participate in a sex offender counseling program was due to limited availability of these programs, as evidenced by his waiting-list status, was without merit. The Staples court also noted that that petitioner's records reflect that he twice declined participation in a counseling program and, thus, must bear some responsibility for his delayed treatment. Claimant’s protestations of waiver and forgery to the contrary, including his voluminous correspondence in protest of the Orleans TAC’s decision, his documented refusal to participate in the ASAT program nearly mirrors the facts in Matter of Staples v Goord (id.).
Claimant paints a picture implying that he was a victim of a shadow conspiracy, placed in a sort of purgatory, or “Catch-22,” because he couldn’t utilize his previously earned good time credit toward his conditional release date, because he had not completed a six-month ASAT program, but he couldn’t get into the six-month ASAT program because his looming conditional release date was less than six months away. This sounds like the grist for a Joseph Heller sequel.
But the legal precedent before me provides the Defendant with the prophylactic protection of immunity. One thing appears immutable, Claimant has no legal entitlement to a discretionary grant of good time credit or a conditional release date. In Archer v State of New York (Claim No. 107538, Motion No. M-66828, Decision and Order dated Dec. 30, 2003 - Defendant’s Exhibit O), now Presiding Judge Sise, reviewed a similar application where that claimant sought damages for the failure to be released upon his conditional release date as the TAC withheld all good time credit due to that inmate’s failure to complete an ASAT program from which he had been removed for disciplinary reasons. Judge Sise noted the role of the TAC is to make recommendations as to the amount of good behavior allowance (7 NYCRR 261.2), which is a privilege and “no inmate has the right to demand or to require that any good behavior allowance be granted” (7 NYCRR 260.2). The TAC’s decisions are discretionary, as good time credits are neither earned nor mandatory. His conclusion, which I adopt and rely upon, is not factually or legally distinguishable from the claim at bar:
Put another way, the TAC does not take away good time credit and thereby extend the period of incarceration, but determines how much good time credit should be granted to a prisoner (see Correction Law §803[1], [4]). Therefore, good time credit is only a potential and therefore does not create a liberty interest (see Marino v Klages, 973 F Supp 275, 299).... [T]he determination of the TAC was a ‘discretionary, quasi judicial determination and, therefore, immune from liability’ [citation omitted].
To the extent that Claimant alludes to constitutional claims, the subject is addressed and resolved, albeit in a parole setting, in Matter of Hyman v New York State Div. of Parole (6 Misc 3d 1014[A]). The court held that the petitioner's constitutional claims regarding his continued incarceration beyond his conditional release date were without merit, as there is no Federal or State constitutional right for an inmate to be released before serving the full sentence.
Accordingly, the Defendant’s motion seeking dismissal of the claim is granted, except to the extent that the claim makes allegations regarding the period of time from the TAC meeting on February 21, 2003 (possibly including the period commencing on November 11, 2002 when the TAC meeting was requested) and Claimant’s release on March 25, 2003. As to those periods of time, and only those periods of time, material questions of fact remain outstanding, and that part of the motion is denied.
September 28, 2007
Rochester, New York
HON. PHILIP J. PATTI
Judge of the Court of Claims

[1].
Decisions and selected orders of the New York State Court of Claims are available on the Internet at
www.nyscourtofclaims.state.ny.us.