New York State Court of Claims

New York State Court of Claims
GREEN v. THE STATE OF NEW YORK, # 2009-044-562, Claim No. 115393, Motion No. M-76707

Synopsis

Inmate claimant's motion for partial summary judgment denied; cause of action for wrongful confinement dismissed.

Case information

UID: 2009-044-562
Claimant(s): SHAWN GREEN
Claimant short name: GREEN
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115393
Motion number(s): M-76707
Cross-motion number(s):
Judge: CATHERINE C. SCHAEWE
Claimant's attorney: SHAWN GREEN, pro se
Defendant's attorney: HON. ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Roberto Barbosa, Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 13, 2009
City: Binghamton
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, an inmate proceeding pro se, filed this claim alleging that while he was incarcerated at Elmira Correctional Facility (Elmira), he was wrongfully confined in keeplock for six days, that he was denied the opportunity for recreation on days when it was scheduled at the same time that he was required to report to the infirmary for insulin injections, that he was denied participation in a specific religious service (Savior Day) which was held on February 26, 2008, and that he was discriminated against based upon his race when he was removed from the "a.m. recycling program." He also contends that the facility administration has, from April 2002 through March 2008, continually and unilaterally revised a contractual agreement in which Elmira's population agreed to accept certain package restrictions in exchange for the ability to have television sets with satisfactory reception pursuant to Department of Correctional Services (DOCS) Directive 4921.

Claimant then filed a supplemental claim alleging that he was also wrongfully confined in violation of DOCS Directive 4910 when he was retained in a temporary isolation room on a "drug watch."(1) In the supplemental claim, claimant also sought damages for being deprived, while in temporary isolation, of bedding and personal hygiene items authorized by DOCS Directive 4910. Defendant answered.

Claimant thereafter filed this amended claim which also includes a cause of action to recover for personal property which was allegedly improperly confiscated from him, and to recover for being overcharged postage when he mailed a particular package. Defendant filed an "amended answer"(2) and asserted several affirmative defenses. Claimant's previous motion to compel disclosure was granted in part (Green v State of New York, Ct Cl, Mar. 17, 2009, Schaewe, J., Claim No. 115393, Motion No. M-75758). Claimant now moves for partial summary judgment. Defendant opposes the motion. Claimant replies.(3)

In this motion, claimant requests a determination on the issue of liability on his two causes of action for wrongful confinement, for deprivation of personal and/or hygiene items while in temporary isolation on a drug watch, and for his removal from the a.m. recycling program. Specifically, claimant contends that from May 8, 2008 through May 13, 2008, he was subjected to keeplock confinement even though he had not been issued a misbehavior report. He further alleges that he remained in temporary isolation from June 22, 2008 through June 24, 2008, notwithstanding that he had three defecations during that time which were negative for contraband. Claimant also argues that he was wrongfully deprived of personal and/or hygiene items while he was confined in temporary isolation. Lastly, claimant alleges that he was wrongfully removed from the a.m. recycling program based upon his race.

Conversely, defendant argues that because claimant could have been confined in keeplock for up to seven days pending a disciplinary or superintendent's hearing, his retention for five days was justified. Defendant asserts that Directive 4910 and the Elmira Correctional Facility Policy and Procedure (the Elmira Procedure) authorize the State to confine claimant in temporary isolation for up to 48 hours, regardless of how many times his defecations were negative for contraband. Defendant further argues that although the Elmira Procedure No. 8.12 allows claimant to be issued certain personal items while confined in temporary isolation, he must first request the items, which he did not do in this case. Defendant also claims that claimant was properly removed from the a.m. recycling program for confidential reasons.

Although defendant did not raise the issue, the Court notes that claimant has failed to include a copy of the pleadings which were served in this action. Accordingly, this motion could be denied solely on that basis (see CPLR 3212 [b]; Greene v Wood, 6 AD3d 976, 977 [2004]). However, copies of the pleadings are on file with the Clerk of the Court and were belatedly submitted with claimant's reply papers (see e.g. Stiber v Cotrone, 153 AD2d 1006, 1007 [1989], lv denied 75 NY2d 703 [1990]). Thus, the record is "sufficiently complete" for the Court to overlook claimant's procedural defect and address the merits of the motion (Greene v Wood, supra; General Motors Acceptance Corp. v Albany Water Bd., 187 AD2d 894, 895 n [1992]).

Claimant, as the movant on this motion for summary judgment, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., supra).

In order to establish a prima facie case of wrongful confinement - a "species" of the tort of false imprisonment (Gittens v State of New York, 132 Misc 2d 399, 407 [1986]) - a claimant must show 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]). Defendant may enjoy immunity for claimant's confinement in both keeplock and the isolation room, as long as it proceeded in conformance with its regulations (see e.g. Arteaga v State of New York, 72 NY2d 212 [1988]).

Initially, there is no dispute that defendant both intended to and did confine claimant, without his consent, in both the May 2008 keeplock confinement and the June 2008 temporary isolation. Therefore, the only remaining issue is whether that confinement was privileged. In his affidavit in support of this motion, claimant states that with respect to the May 2008 confinement: "[d]efendant accumulated and assembled information of claimant being wrongfully confine [sic] by an unknown employee for several days with two independent investigations into matter as well as a log book entry."(4) Claimant's conclusory allegations and failure to provide the documentary evidence purportedly available generally mandate denial of the motion (see e.g. Green v State of New York, Ct Cl, Sept. 25, 2008, Collins, J., Claim No. 113099, Motion No. M-74952 [UID # 2008-015-072]).

However, defendant has provided such documentation in its opposition papers. Defendant submits copies of Grievance EL-34-346-08 complaint, its informal resolution, and the underlying investigation, as well as a copy of a memorandum dated August 13, 2008 from Correction Lieutenant R. Semski to Deputy Superintendent of Security S. Wenderlich.(5) This information concerning the grievance establishes that claimant was held in keeplock confinement from May 8, 2008 through May 13, 2008, and that "[n]o Misb. Report appears to have been issued."(6) The memorandum indicates that claimant may have been confined to keeplock for "106.10" (presumably based upon a violation of 7 NYCRR 270.2 [B] [7] [i] 106.10(7) [Rule 106.10]).(8) However, Lieutenant Semski states that there is no record that a misbehavior report was issued or dismissed, and he could not discern the name of the officer who placed claimant in keeplock confinement, as the officer's writing in the logbook is not legible.

As defendant correctly notes, 7 NYCRR 251-1.6 (a) provides that "[w]here an officer has reasonable grounds to believe that an inmate should be confined to his cell or room or housing area because he represents an immediate threat to the safety, security or order of the facility or in immediate danger to other persons or to property, such officer shall take reasonable and appropriate steps to so confine the inmate." This regulation has been interpreted as "authorizing keeplock whenever an officer reasonably believes that a facility rule has been violated by an inmate, thus establishing an 'immediate threat' to the 'order of the facility' " (Matter of Bowe v Smith, 119 Misc 2d 453, 455 [1983]); see also Matter of Pettus v West, 28 AD3d 907 [2006]). However, the regulation "does not require that the report be provided to the claimant," and the failure to issue such a report does not implicate any due process safeguard (Lamage v State of New York, Ct Cl, Dec. 22, 2006, Collins, J., Claim No. 111068, Motion Nos. M-72162,

M-72216, Cross Motion No. CM-72335 [UID # 2006-015-140]; but see Butler v State of New York, Ct Cl, June 12, 2002, McNamara, J., Claim No. 103066 [UID # 2002-011-106] [where the Court found that allegations of the claimant's placement in a Special Housing Unit for protective custody, without issuance of either a written report under 7 NYCRR 251-1.6 (e) (1) or a timely written request for protective custody, supported a cause of action for wrongful confinement]).

In viewing the evidence in the light most favorable to defendant, as the nonmoving party, claimant was confined in keeplock based upon an apparent violation of Rule 106.10. The Regulations set no particular time limit for issuance of a misbehavior report, but merely provide that it must be written "as soon as practicable" (7 NYCRR 251-3.1 [a]). Further, in instances where the inmate is confined prior to a hearing, the hearing must be commenced within seven days of the confinement (7 NYCRR 251-5.1 [a]). Notwithstanding the apparent lack of a misbehavior report, claimant was not confined for more than seven days before a hearing, and the Court cannot find that as a matter of law, claimant's confinement in keeplock was unlawful (cf. Lamage v State of New York, Ct Cl, May 10, 2007, Collins, J., Claim No. 109310 [UID # 2007-015-552] [where claimant - who had received neither a misbehavior report nor a hearing within the time limitations of 7 NYCRR 251-5.1 (a) - was wrongfully confined for eight days]). Accordingly, claimant's motion for summary judgment on the cause of action for wrongful confinement between May 8, 2008 and May 13, 2008 is denied.

In support of his claim that he was wrongfully confined in June 2008, claimant states that "[d]efendant developed a chronological log of claimant [sic] observation in temporary isolation room from admission June 22, 2008 at 2:50 p.m. til release June 24, 2008 at 9:40 a.m."(9) Claimant asserts that because he was not released after he produced two negative defecations, he was wrongfully confined in violation of DOCS Directive 4910. Although claimant has not included said chronological log in his motion papers, defendant has provided both the chronological log and a copy of Directive 4910 in its responding papers.

Directive 4910 (IV) (J) (4) (d) provides that on a drug watch:

[t]he inmate shall remain isolated for a period not to exceed 48 hours unless:

(1) a defecation containing contraband occurs, in which case the inmate will be retained until two negative defecations occur; or

(2) two negative defecations do not occur within 48 hours, in which case the inmate will be retained until two negative defecations occur; or

(3) a radiological detection search conducted pursuant to section III-l of this directive indicates the presence of a contraband item which remains in the inmate's body. In this case, the temporary isolation may continue for up to 7 days with the written approval of the superintendent or his/her designee.(10)

Claimant's apparent reliance on Directive 4910 (IV) (J) (4) (d) (1) is misplaced. This subsection concerns the situation where contraband has been found. In that instance, defendant is authorized to retain the inmate for longer than 48 hours, i.e., until that inmate has two more defecations which are negative for contraband. Notwithstanding the absence of a cross motion, this Court has the authority to search the record and grant summary judgment to the nonmoving party (see CPLR 3212 [b]; see generally WFR Assoc. v Memorial Hosp., 14 AD3d 840 [2005]). The Court has searched the record and finds, as a matter of law, that claimant's confinement in temporary isolation for a period of less than 48 hours was in compliance with DOCS Directive 4910. Accordingly, claimant's cause of action for wrongful confinement from June 22, 2008 through June 24, 2008 is dismissed.

Claimant also asserts that he is entitled to compensation for defendant's failure to provide him with certain personal and/or hygiene items while he was in temporary isolation as required by Directive 4910 (IV) (J) (3) (b) and (c). Claimant supports his motion solely by stating that defendant "formulated material related to items furnish [sic] claimant in temporary isolation room with admissions and log book entries conflicting with department policy . . . by not providing bare necessities required . . . no hygienic materials, neither cell equipment (i.e. mattress, pillow) nor flatwork (i.e. linen, blanket)."(11) Claimant argues that to the extent that the provisions of Directive 4910 and the Elmira Procedure No. 8.12 (IV) (E) (1) are inconsistent, the mandates of Directive 4910 apply.

Conversely, defendant asserts that because the incident occurred at Elmira, which has developed its own facility-specific policies and procedures, the Elmira Procedure No. 8.12 applies to the situation. Defendant contends that claimant was provided with a gown, slippers and a sleeping mat as mandated, but asserts that he failed to request other permitted items.

Pursuant to Directive 4910 (IV) (J) (3) (a), the isolation room was to be furnished with a bed mattress, pillow, bed linen, blanket, and a bedpan. Further, claimant was to be provided with hospital clothing or "1 set underwear; 1 pair pants or skirt; 1 shirt or blouse; 1 pair slippers [and] 1 pair socks," as well as "the following personal hygiene items: 1 bar hand soap[,] toothbrush[,] toothpaste and/or denture cleaner and 1 hand towel (Directive 4910 [IV] [J] [3] [b], [c]). The Elmira Procedure No. 8.12 (IV) (E) (1) provides that in lieu of personal clothing the inmate is entitled to a hospital gown and paper slippers, or one set of underwear. With respect to hygiene items, "[t]he inmate will, upon request, be allowed access to (1) bar soap, (1) toothbrush, (1) toothpaste and/or denture cleaner and (1) hand towel. Inmate will be issued (1) matt [sic] for sleeping" (the Elmira Procedure No. 8.12 [IV] [E] [1]).

Accepting the truth of claimant's allegation, it appears that he was not provided with all of the items as required by DOCS Directive 4910. However, claimant did receive some items (a gown/smock and at least one mat for sleeping) which were in compliance with Elmira Procedure No. 8.12.(12) Given the apparent conflict between the Directive and the Elmira Procedure, as well as the lack of evidence regarding which mandate is applicable, the issue of liability on this cause of action cannot be determined as a matter of law. Accordingly, claimant's motion for summary judgment on this cause of action is denied.

Concerning the cause of action for racial discrimination, claimant alleges that he was unlawfully removed from the a.m. recycling program because of his race. Claimant supports this allegation with his conclusory statement that the number of Caucasian inmates assigned to said program is disproportionate to the number of inmates of any other ethnicity. However, claimant has not provided any documentary evidence to substantiate his accusation. In light of the Court's directive that defendant respond to claimant's Interrogatory No. 6 - which requested the ethnic background of each inmate who was placed in the a.m. recycling program during the time period from January 2007 through June 2008 - in claimant's previous motion to compel discovery in this claim, claimant's failure to provide such evidence is fatal to his motion for summary judgment on this cause of action.(13) ,(14)

In conclusion, claimant has failed to meet his burden of establishing entitlement to judgment as a matter of law on his two causes of action for wrongful confinement, his cause of action for deprivation of items during temporary isolation, and his cause of action for discrimination in his removal from the a.m. recycling program. Accordingly, claimant's motion for partial summary judgment is denied in its entirety. Moreover, the Court has searched the record and finds that claimant's confinement in temporary isolation from June 22, 2008 through June 24, 2008 was privileged as a matter of law. Accordingly, the cause of action for wrongful confinement during that time period is dismissed.

October 13, 2009

Binghamton, New York

CATHERINE C. SCHAEWE

Judge of the Court of Claims

The following papers were read on claimant's motion:

1) Motion for Partial Summary Judgment filed on May 19, 2009; "Affirmation" of Shawn Green sworn to on May 12, 2009; Memorandum of Law dated May 12, 2009.

2) Affirmation in Opposition of Roberto Barbosa, AAG, dated June 10, 2009, and attached Exhibits A through G.(15)

3) Claimant's Reply filed on June 22, 2009, and attached exhibits.

Filed papers: Claim filed on June 16, 2008; Supplemental Claim filed on July 7, 2008; Verified Answer filed on July 21, 2008; Amended Claim filed on July 24, 2008; Verified Amended Answer filed on August 11, 2008.


1. Specifically, claimant alleges that he was not released from temporary isolation promptly after his second defecation was negative for contraband.

2. As the Court noted in its previous Decision and Order, the correct terminology for defendant's pleading is "answer to the amended claim" (Green v State of New York, Ct Cl, Mar. 17, 2009, Schaewe, J., Claim No. 115393, Motion No. M-75758).

3. This motion was returnable on June 10, 2009, and on its face, claimant's reply appears to be untimely. However, claimant served this motion on May 12, 2009, clearly more than 16 days prior to the return date, and thus properly demanded that answering papers be served at least seven days prior to that time pursuant to CPLR 2214 (b). Because defendant did not mail its opposition papers until June 10, 2009 (the return date), they are untimely (CPLR 2214 [b]). Although the Court does not condone such dilatory conduct, it discerns no prejudice in this particular matter, and will therefore accept defendant's untimely answering papers as well as claimant's untimely reply affidavit.

4. Claimant's Affidavit in support of Motion for Summary Judgment, 2.

5. While these uncertified documents are not in admissible form (see Green v State of New York, Ct Cl, Sept. 25, 2008, Collins, J., Claim No. 113099, Motion No. M-74952 [UID # 2008-015-072]), and would not necessarily be considered on this motion, the State has authenticated them for the purpose of this motion by providing the documents in its answering papers.

The Court notes that claimant had previously served discovery demands whereby he demanded to inspect certain documents, including Grievance EL-34-346-08, rather than requesting copies - for which he would have been charged a fee. The Court is mindful that by moving for summary judgment and referring the Court to the evidence without providing it, claimant has in essence required defendant to provide copies of the requested documents without charge in order to oppose this motion. Claimant is now on notice that in addition to an affidavit and copies of the pleadings, any future motions for summary judgment must contain any documentary evidence referred to in the supporting affidavits, as contemplated by the statute (CPLR 3212 [b]).

6. Affirmation of Roberto Barbosa, Assistant Attorney General (AAG), in Opposition to Motion, Exhibit A, at 2.

7. Rule 106.10 provides that "AN INMATE SHALL OBEY ALL ORDERS OF DEPARTMENT PERSONNEL PROMPTLY AND WITHOUT ARGUMENT."

8. Affirmation of Roberto Barbosa, AAG, in Opposition to Motion, Exhibit B.

9. Claimant's Affidavit in support of Motion for Summary Judgment, 3.

10. Although there is an apparent question as to whether Directive 4910 or the Elmira Procedure No. 8.12 is applicable to claimant's situation (see infra at 9-10), the time limitations set forth in the Elmira Procedure No. 8.12 (IV) (F) (1) and (2) (which are arguably the only ones applicable to claimant's argument) are identical to those contained in Directive 4910 (IV) (J) (4) (d) (1) and (2).

11. Claimant's Affidavit in support of Motion for Summary Judgment, 4-5.

Claimant additionally cites certain admissions allegedly made by defendant. However, claimant has not submitted any such documentary evidence as part of his motion, nor has he filed his Request for Admissions with the Clerk of the Court as required by the Uniform Rules for the Court of Claims (22 NYCRR) 206.5 (c).

12. As defendant correctly notes, the Elmira Procedure No. 8.12 does place a burden on the inmate to request certain personal hygiene items such as a toothbrush and toothpaste. However, contrary to defendant's argument, claimant did in fact request these items while he was in temporary isolation, thus leading to the potential for liability under either mandate (Affirmation of Roberto Barbosa, AAG, in Opposition to Motion, Exhibit D, at 3).

13. Defendant asserts that claimant filed a grievance, which was denied for confidential reasons, and has provided Exhibit G only to the Court in opposition to this portion of claimant's motion. Claimant contends that because defendant did not seek a protective order for Exhibit G, the Court should not consider it. Defendant asserts that the document - which contains the specific reasons for claimant's removal from the program - should not be disclosed to claimant as it could compromise safety and security at the facility. However, AAG Barbosa indicates that although the document itself was not supplied to claimant in response to a discovery demand, a summary of its substance was disclosed (Affirmation of Roberto Barbosa, AAG, in Opposition to Motion, 24).

14. Because claimant did not meet his initial burden of establishing entitlement to judgment as a matter of law, the Court has not considered the contents of Exhibit G in determining this motion. Further, because neither party has pursued the matter pursuant to CPLR Article 31, the Court makes no finding with respect to whether Exhibit G should be disclosed, redacted or subject to a protective order.

15. See notes 13 and 14, supra.