Defendant's motion to dismiss the claim was denied to the extent it alleged a violation of claimant's conditional right to call witnesses since the Hearing Officer violated a due process safeguard. Claim was dismissed to the extent it alleged a bailment cause of action and violations of the State and Federal Constitution.
|Claimant short name:||ADAMS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The Court has sua sponte amended the caption to reflect The State of New York as the proper defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Marquis Adams, Pro se|
|Defendant's attorney:||Honorable Eric T. Schneiderman, Attorney General
By: Michael T. Krenrich, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 20, 2017|
|See also (multicaptioned case)|
Defendant moves for summary judgment dismissing the instant claim on the ground the claim fails to state a cause of action.
Claimant, an inmate, was charged in a misbehavior report with possessing gang-related materials in violation of a facility rule (7 NYCRR 270.2 [rule 105.13]). The materials consisted of three photographs depicting individuals allegedly "flashing gang signs" (defendant's Exhibit A). Correction Officer Sawyer, the author of the misbehavior report, indicated in the report that although the photographs were redacted, they nevertheless depicted "clearly gang related action" (id.). Claimant denied that the photographs depicted gang-related action and requested that a Gang Intelligence Officer be permitted to testify on his behalf at the disciplinary hearing (defendant's Exhibits B and C). The Hearing Officer denied this request as redundant because Correction Officer Sawyer "clearly identified the signs as being gang related" (defendant's Exhibit C). Claimant was found guilty of the charge and a penalty of 45 days keeplock confinement was imposed, together with a loss of privileges (defendant's Exhibit D). The determination was administratively reversed on June 12, 2013 on the ground that "[t]he circumstances surrounding the incident raise questions as to the inmate's culpability for the charge of 105.13. The photos should have been considered contraband" (defendant's Exhibit E).(2)
Claimant alleges he was wrongfully confined to his cell for a period of 45 days as the result of the Hearing Officer's conduct, which he alleges "deprived me of my constitutional right to due process in a Superintendents Hearing, by not allowing me to call a witness that would have exonerated me" (defendant's Exhibit F, claim, ¶ 2).
A motion for summary judgment premised on the contention that a claim fails to state a cause of action, "is addressed to the pleadings and not to the merits, by identifying a defect in [claimant's claim], and in this manner triggered [claimant's] obligation to reveal an evidentiary basis in its submissions that was sufficient to 'present[ ] facts curing the defect or supplying the deficiency' " (Lindquist v County of Schoharie, 126 AD3d 1096, 1098 [3d Dept 2015], quoting Weinstein-Korn-Miller, NY Civ Prac ¶ 3212.10 [2d ed 2014]). The sufficiency of the claim is determined in the first instance by accepting the facts as alleged in the claim as true and according the claimant the benefit of every favorable inference (Leon v Martinez, 84 NY2d 83, 87-88 ; see also Aristy-Farer v State of New York, 29 NY3d 501 ; Chanko v Am. Broad. Companies Inc., 27 NY3d 46, 52 ; Matter of Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 ). When evidentiary material is submitted in opposition to the motion, " 'the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one' " (Leon v Martinez, 84 NY2d at 88, quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275 ).
Here, defendant contends that the claim fails to state a cause of action because claimant failed to allege that the disciplinary hearing was reversed due to a failure to comply with one of the ministerial rules or regulations governing the conduct of disciplinary hearings. Defendant also contends that, to the extent claimant seeks damages for the value of the photographs which were confiscated but not returned, the claim fails to state a bailment cause of action because the claimant did not allege that he filed an inmate property claim or exhausted his administrative remedies. Lastly, defendant asserts that the claim fails to state a cause of action under either the Federal or State Constitutions.
The law is settled that conduct of correctional facility employees taken in furtherance of authorized disciplinary measures is quasi-judicial in nature and entitled to absolute immunity (Arteaga v State of New York, 72 NY2d 212 ; Kairis v State of New York, 113 AD3d 942 [3d Dept 2014]; Loret v State of New York, 106 AD3d 1159 [3d Dept 2013]; Shannon v State of New York, 111 AD3d 1077 [3d Dept 2013]). The Arteaga Court made clear, however, that the State is not immune from liability for "actions of correction personnel in physically abusing inmates (see, Correction Law § 137 ) or in confining them without granting a hearing or other required due process safeguard (see, 7 NYCRR 251-5.1; parts 252-254)" (Arteaga, 72 NY2d at 221). Consequently, absolute immunity is lost for a violation of a due process safeguard embodied in one of the rules or regulations governing the conduct of disciplinary hearings. Claimant contends in opposition to defendant's motion that the Hearing Officer's denial of his request for the testimony of a Gang Intelligence Officer (defendant's Exhibit C) violated the governing regulation (7 NYCRR 254.5) as well as the Federal and State Constitutions. Claimant allegedly requested this witness in order to refute Correction Officer Sawyer's testimony that the photographs depicted gang-related signs.
While inmates have a right to call witnesses on their behalf, the right is conditioned on the Hearing Officer's determination that the anticipated testimony "is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals" (7 NYCRR 254.5 [a]). In the context of proceedings under CPLR article 78, although an outright denial of a requested witness without a stated good-faith reason is a constitutional violation requiring expungement from the inmate's institutional record, a denial of a requested witness on the grounds of redundancy, relevance or the safety and security of the facility is no more than a regulatory violation warranting remittal for a new hearing (Matter of Alvarez v Goord, 30 AD3d 118 [3d Dept 2006]; Matter of Caldwell v Goord, 34 AD3d 1173 [3d Dept 2006]). In the context of an action brought in the Court of Claims and addressing the same governing regulation at issue here the Appellate Division, Fourth Department, held in Bottom v State of New York (142 AD3d 1314 [4th Dept 2016], lv dismissed 28 NY3d 1177 ) that the determination of a Hearing Officer denying an inmate's request seeking the testimony of witnesses, on the ground the proposed testimony was irrelevant, was not entitled to absolute immunity as the testimony was "material and relevant because it tended to support claimant's defense" (id. p. 1316). The cloak of absolute immunity was lost because denial of the inmate's request constituted a violation of 7 NYCRR 254.5(a), one of the due process safeguards contained within 7 NYCRR parts 252 through 254. The facts of Bottom are closely aligned with those of the instant matter and, in the absence of specific countervailing Third Department precedent, is controlling. Nonetheless, the Court would note its view that the determination of a Hearing Officer as to whether or not a proposed witness' testimony is material, redundant or jeopardizes institutional safety is necessarily discretionary and classically quasi-judicial in nature. Hence, the improvident denial of an inmate's request for witness testimony on one of the grounds set forth in 7 NYCRR 254.5 (a) should not be interpreted as a violation of the governing regulation but, rather, as an abuse of discretion entitled to absolute immunity in an action for money damages in the Court of Claims (see Holloway v State of New York, 285 AD2d 765 [3d Dept 2001]; see also Loret v State of New York, 106 AD3d 1159 [3d Dept 2013]; Pryor v State of New York, 92 AD3d 1047 [3d Dept 2012]). Applying the holding in Bottom to the facts in this case requires a finding that the determination of the Hearing Officer denying claimant's request was not entitled to absolute immunity.
The absence of immunity does not, however, relieve the claimant from pleading and proving the material elements of a tort claim (see CPLR 3013; Lauer v City of New York, 95 NY2d 95, 99-101 ; Tango v Tulevich, 61 NY2d 34, 40 ; Bottom v State of New York, 142 AD3d 1314 [4th Dept 2016], appeal dismissed 28 NY3d 1177 ; Moustakos v State of New York, 133 AD3d 1268 [4th Dept 2015]; Watson v State of New York, 125 AD3d 1064, 1065 [3d Dept 2015]). As recently stated by the Court in Moustakos (133 AD3d at1269):
"Where, as here, a prison inmate contends that he was wrongfully confined as a result of the flawed prison disciplinary proceeding, once the absolute immunity is removed by showing that the governing rules and regulations were not followed, he [or she] may recover damages if he [or she] is able to prove the traditional elements of the tort of [unlawful confinement]: (1) that the confinement was intentional; (2) that Claimant was conscious of the confinement; (3) that Claimant did not consent to the confinement; and (4) that the confinement was not otherwise privileged" (Kilpatrick v State of New York, Ct Cl, Dec. 2001, Patti, J., claim No. 100462, UID No. 2001-013-031, citing Broughton v State of New York, 37 NY2d 451, 456 ; cf. Lamage v State of New York, 31 Misc 3d 1205[A], 2010 NY Slip Op 52393[U], *2-3 )."
Here, the allegations in the claim sufficiently state all the material elements of a cause of action for wrongful confinement. With respect to the last required element, that the confinement was not otherwise privileged, claimant alleges that he was deprived of his due process right "to call a witness that would have exonerated me" (defendant's Exhibit F, claim, ¶ 2). In opposition to the motion, claimant contends that this deprivation violated 7 NYCRR 254.5. Accordingly, the claim states a cause of action for wrongful confinement because it sufficiently alleges facts which, if true, establish that claimant was intentionally confined without his consent and that the confinement was not privileged, i.e, the outcome of the hearing would have been different had the witness he requested been permitted to testify (see Bottom, supra; Moustakos, supra).
To the extent defendant contends that the claim fails to state a cause of action for
bailment under Court of Claims Act § 10 (9), the Court must agree. First, the claim does not appear to seek damages for the loss of the photographs which were allegedly confiscated by correction personnel. Moreover, claimant failed to allege in either the claim or in opposition to the motion that he exhausted his administrative remedies prior to filing the instant claim.
The law is well settled that "one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law" (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 ). Here, the requirement that an inmate exhaust his or her administrative remedies prior to filing a claim is a jurisdictional one not subject to waiver (Williams v State of New York, 38 AD3d 646 [2d Dept 2007]). Court of Claims Act § 10 (9) could not be clearer in this regard:
"A claim of any inmate in the custody of the department of corrections and community supervision for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department."
It is therefore claimant's burden to plead and prove compliance with available administrative remedies (Williams, supra). Here, claimant concedes in opposition to the motion that although he filed an administrative claim and appealed the denial, he "reached a 'dead end' when receiving no response" (claimant's Affidavit in Opposition, ¶ 9).
Although an administrative appeal must be "reviewed" within 15 days of receipt by the reviewer (7 NYCRR 1700.4 [d]), there is no provision in either the Court of Claims Act or the applicable regulation which permits an action in the Court of Claims absent a timely administrative appeal determination. Claimant's recourse was a proceeding in the nature of mandamus to compel the performance of a ministerial act enjoined by law (CPLR 7803 ; see generally Matter of De Milio v Borghard, 55 NY2d 216, 220 ). Inasmuch as claimant failed to plead or otherwise demonstrate in opposition to defendant's motion that he exhausted his administrative remedies, the claim must be dismissed to the extent it seeks recovery under a bailment theory for failure to state a cause of action.
While the claim makes only vague reference to constitutional violations, to the extent it may be read to include causes of action for violations of the State and Federal Constitutions, these causes of action must be dismissed. No cause of action lies for violation of the State Constitution since the remedy is a narrow one which may not be invoked where the claimant has an alternative avenue of redress (Martinez v City of Schenectady, 97 NY2d 78, 83 ). Such alternative avenues of redress include monetary remedies under traditional tort principles (Waxter v State of New York, 33 AD3d 1180 ; Lyles v State of New York, 2 AD3d 694, 695-696 [3d Dept 2003], affd 3 NY3d 396 ; Augat v State of New York, 244 AD2d 835 ; Albright v State of New York, 32 Misc 3d 855 [Ct Cl, Marin, J., May 31, 2011]). Here, the existence of a common law tort cause of action for wrongful confinement renders recognition of a tort cause of action based upon an alleged violation of the State Constitution unnecessary.
To the extent the claim rests on alleged violations of the Federal Constitution, the claim must be dismissed as the State is not a "person" within the meaning of the enabling legislation (42 USC § 1983; Brown v State of New York, 89 NY2d 172, 185 , citing Monell v New York City Dept. of Social Servs., 436 US 658 ; see also Flemming v State of New York, 120 AD3d 848 [3d Dept 2014]; Shelton v New York State Liq. Auth., 61 AD3d 1145 [3d Dept 2009]).
Based on the foregoing, defendant's motion is granted to the limited extent of dismissing claimant's causes of action for bailment and violations of the State and Federal Constitution and denied with respect to the claimant's wrongful confinement cause of action.
September 20, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
2. Facility Rule 105.13 (7 NYCRR 270.2) states, in pertinent part, the following:
"An inmate shall not engage in or encourage others to
engage in gang activities or meetings, or display,
wear, possess, distribute or use gang insignia or
materials including, but not limited to, printed or
handwritten gang or gang related material."