Inmate claimant's motion for summary judgment for wrongful confinement granted.
|Claimant short name:||LAMAGE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Terry Jane Ruderman|
|Claimant's attorney:||EDWIN LAMAGE
|Defendant's attorney:||HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: Elyse Angelico , Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 23, 2010|
|See also (multicaptioned case)|
The following papers numbered 1-2 were read and considered by the Court on claimant's motion for summary judgment on his cause of action(1) for wrongful confinement:
Notice of Motion, Claimant's Supporting Affidavit and Exhibits.............................1
Attorney's Affirmation in Opposition and Exhibits..................................................2
Based upon a misbehavior report completed by Correction Officer Evans on March 24, 2009 (Claimant's Ex. D), claimant was charged with prison violations and, after a hearing, claimant was placed in keeplock for 115 days from March 24, 2009 through July 16, 2009. The misbehavior report stated:
"[o]n 3/24/09 Durring [sic] the program frisk at aprox 1:15 pm after exiting the metal detector and proceeding up the hill inmate Lamage 95A7352 was called to by inmate Strain 95B2254 using the name Irkle. After being identified by inmate Strain as the inmate that passed him the manilla envolope containing 4 sheets of carbon paper and 1 can lid, inmate Lamage was called back to the frisk area an [sic] Pat frisked and questioned about the manilla envelope containing 4 sheets of carbon paper and 1 can lid. Inmate Lamage denied giving it to inmate Strain"
(id.). In April 2010, the hearing determination was administratively reversed and claimant's record was expunged (Claimant's Ex. I).Claimant's Motion
Claimant now seeks summary judgment on his claim of wrongful confinement for the 115 days he was placed in keeplock. Claimant alleges that the misbehavior report written by Correction Officer Evans was invalid because it was not in compliance with the New York State Department of Correctional Services (DOCS) own regulation. Specifically, claimant argues that pursuant to 7 NYCRR 251-3.1(b), "[t]he Misbehavior Report shall be made by the employee who has observed the incident or who has ascertained the facts of the incident [emphasis added]" and in this matter, Evans neither observed the incident nor ascertained the facts of the incident. Notably, in response to claimant's interrogatories, Evans admitted that he did not observe claimant in possession of the envelope or its contents and did not observe claimant pass the envelope or its contents to inmate Strain. Additionally, Evans responded that he was not "ascertained of the facts" that claimant passed the envelope and its contents to inmate Strain (Claimant's Ex. E). Thus, claimant maintains that the misbehavior report completed by Evans was invalid because it failed to comply with 7 NYCRR 251-3.1(b). Claimant seeks $25.00 per day for his wrongful confinement (see DuBois v State of New York, 25 Misc 3d 1137 [awarding $30.00 per day for 90 days of excessive confinement]).
Upon review of all the papers submitted on this application, the Court finds that the misbehavior report was not in compliance with 7 NYCRR 251-3.1(b) because Evans neither observed the incident nor ascertained the facts of the incident from an established reliable source (see Matter of Cotto v Bautista, 252 AD2d 977 [correction officer's report of information obtained from inmate informants did not demonstrate the reliability or basis of knowledge of the informants nor did it contain any other material enabling the hearing officer to assess the credibility of the informants or their information]). Rather, the only information implicating claimant was obtained from Inmate Strain, the inmate found to be in possession of the contraband who claimed to have received the contraband from claimant. Unlike the cases cited by defendant in opposition to claimant's motion, Evans' sole source of information did not have an indicia of reliability nor was there any evidence that Inmate Strain lacked a motive to falsely implicate claimant (cf. Matter of Foster v Coughlin, 76 NY2d 964, 966 [highly detailed facts of inmate assault were ascertained from inmate victim with observable injuries shortly after the attack and: "[t]here was no evidence of any motive (of victim) to implicate petitioner (assailant) falsely"]; cf. Matter of Haynes v Andrews, 283 AD2d 746 [correction officer did not witness inmate assault; however he was authorized to write the misbehavior report because he ascertained the facts from the victim who had visible injuries and the assailant who admitted committing the assault]).
Here, Inmate Strain is not a victim. He is a wrongdoer caught in the act, who then implicated another inmate. There was no evidence of any indicia of reliability of this source of information nor was there any other evidence to form a basis of knowledge for Correction Officer Evans' report (cf. Matter of Cobb v Selsky, 270 AD2d 747 [correction officer who wrote misbehavior report ascertained facts from other correction officers and other confidential sources with personal knowledge of the incident]; cf. Matter of Rodriguez v Herbert, 270 AD2d 889, 889 [correction officer did not witness inmate assault but was authorized to write misbehavior report based upon interviews of "numerous inmates"]). Moreover, Correction Officer Evans admitted that he did not observe anything even relating to the incident and had not ascertained the facts of the incident. Accordingly, because the misbehavior report was invalid and not in compliance with defendant's own regulation, claimant has made a sufficient showing to warrant judgment in his favor and, because defendant acted inconsistently with its own regulations, defendant is not entitled to immunity under Arteaga v State of New York, 72 NY2d 212. Further, defendant has not submitted any evidence or arguments disputing claimant's alleged measure of damages.
Thus, claimant's motion for summary judgment on his cause of action for wrongful confinement is GRANTED and this cause of action shall be severed from the remaining causes of action asserted under Claim No. 117459 (see CPLR 3211[e]). Claimant is awarded $2,875.00 in damages for his 115 days of wrongful confinement.
It is further ordered that, to the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).
LET JUDGMENT BE ENTERED ACCORDINGLY.
December 23, 2010
White Plains , New York
Terry Jane Ruderman
Judge of the Court of Claims
1. Claimant seeks summary judgment only as to this cause of action; the remaining causes of action alleged in Claim No. 117459 are not the subject of this motion.