The State's motion for partial summary judgment dismissing the pro se claimant's wrongful confinement and wrongful disclosure of mental health causes of action is granted.
|Claimant short name:||DELEON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||ELISEO DELEON, Pro Se|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Michael T. Feeley, Esq.
|Third-party defendant's attorney:|
|Signature date:||December 9, 2020|
|See also (multicaptioned case)|
Pro se claimant Eliseo Deleon alleges in claim no. 127572 that on September 29, 2015 he was assaulted by correction officers at the Erie County Medical Center (ECMC) while on a scheduled medical appointment. Claimant was at that time incarcerated at the Collins Correctional Facility (Collins). Claimant further alleges in his claim that he was denied medical attention for the injuries he received from the assault and was then wrongfully confined to the Special Housing Unit (SHU). Defendant State of New York moves for partial summary judgment dismissing the wrongful confinement and the unauthorized disclosure of mental health records causes of action. Claimant failed to appear or otherwise oppose defendant's motion.
In his claim, claimant alleges that he was wrongfully confined to SHU as a result of two separate disciplinary hearings. The first hearing was commenced on October 2, 2015 before Hearing Officer (H.O.) Woodrow. The second hearing was commenced on October 8, 2015 before H.O. Gallagher. At paragraphs 29 - 31 of the claim, claimant alleges that he was released from SHU confinement following the administrative reversal of the first disciplinary hearing and the subsequent reversal of the second disciplinary hearing on December 18, 2015, when he was transferred from SHU at Southport Correctional Facility (Southport) to Auburn Correctional Facility (Auburn).
Defendant alleges that claimant's claims for wrongful confinement are untimely and must be dismissed. Court of Claims Act §§ 10 (3-b) and 11(a) (i), provide that an intentional tort claim, such as one for wrongful confinement, must be filed and a copy served upon the Attorney General personally or by certified mail, return receipt requested, within ninety (90) days after accrual of the claim, unless the Claimant shall within the same ninety (90) day period serve upon the Attorney General personally or by certified mail, return receipt requested, a notice of intention to file a claim, in which event the claim must be filed and served within one year after accrual of the claim. The filing and service requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 ; Matter of Dreger v New York State Thruway Authority, 177 AD2d 762 [3d Dept 1991], affd 81 NY2d 721 ). The failure to timely serve a notice of intention or a claim within the requisite ninety (90) day period divests the Court of jurisdiction, requiring dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]). Defendant alleges that neither a notice of intention to file a claim which alleged a cause of action for wrongful confinement nor a claim was served within the requisite ninety (90) day period.
A cause of action for wrongful confinement accrues when the claimant is released from confinement (Davis v The State of New York, 89 AD3d 1287 [3d Dept 2011]). It is alleged in the claim that claimant was released from SHU confinement arising from both of the disciplinary hearings on December 18, 2015. A claim for wrongful confinement arising out of either or both of the disciplinary hearings had to be served within 90 days after release from confinement or by March 17, 2016, at the latest. According to the accompanying affidavit of Debra L. Mantell, a legal assistant II in the Albany Office of the Attorney General, the claim was served upon the Attorney General's Office on July 22, 2016, more than ninety days after accrual of a wrongful confinement claim (see Defendant's Exhibit D). In addition, the claim as served is stamped received by the Attorney General's Claims Bureau on July 22, 2016 (see Defendant's Exhibit A). Thus, claimant's wrongful confinement causes of action would be untimely unless claimant had previously served a timely notice of intention to file a claim alleging a wrongful confinement cause of action.
On October 26, 2015, claimant served upon the Attorney General's Office a notice of intention to file a claim. Pursuant to the Court of Claims Act, a claim and a notice of intention to file a claim shall both "state the time when and place where such claim arose" and "the nature of same" (Court of Claims Act §11[b]). This statute requires the notice of intention to be specific enough to enable the State to be able to investigate the claim promptly and to ascertain its liability. It has been held that "[t]he statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State" (Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]).
Claimant's notice of intention (Defendant's Exhibit C) states that the claim arose on September 29, 2015, at ECMC and at Collins. The notice of intention alleges causes of action for assault, denial of adequate medical care and denial of pain medication, as well as a cause of action for unauthorized disclosure of mental health records. While the notice of intention states generally that claimant was served with a Tier III misbehavior report on September 30, 2015, it does not mention the second misbehavior report, or identify the facility where any charges arose. In addition, claimant's notice of intention failed to state whether any disciplinary hearings were conducted or where they were conducted, or whether claimant was found guilty of any charge or confined to SHU as a result of any disciplinary hearing. Claimant's notice of intention failed to comply with the requirements of Court of Claims Act § 11 (b) in that it failed to give the State any notice that claimant would be asserting a claim for wrongful confinement. Accordingly, the notice of intention served on October 26, 2015, was insufficient to extend claimant's time to file and serve a claim alleging a wrongful confinement cause of action, and that portion of claim no. 127572 which alleges causes of action for wrongful confinement must be dismissed as the claim was untimely served.
Defendant State of New York further moves to dismiss claimant's cause of action for unauthorized disclosure of his mental health/ medical history records. In claimant's notice of intention served upon the Attorney General's Office on October 26, 2015, it is alleged that "DOCCS Mental Health Personal Illegally disclosed Confidential Mental Health Information w/o my consent." In the claim, it is alleged that on September 29, 2015, after arriving back at Collins from ECMC, claimant requested to see his mental health counselor and was placed on suicide watch by order of the facility mental health doctor until he could be seen the next morning (see ¶ 10 of the claim, Defendant's Exhibit A). It is further alleged in the claim that H.O. Gallagher read into the record that he had relied in part upon "off the record MHU (Mental Health Unit) testimony in finding claimant guilty of the pending charges during one of the two disciplinary hearings referenced in the claim (see ¶ 27 of the claim, Defendant's Exhibit A). Finally on pages 13-16 of the claim, claimant alleges that he was wrongfully confined in the SHU in violation of his constitutional rights due, at least in part, to the disclosure of his mental health records and the use of a MHU staff member as a witness (see ¶¶ 1[F] and [G]on page 15 of the claim).
Insofar as the claim can be read as alleging a separate cause of action for unlawful disclosure of claimant's medical or mental health information, defendant argues that it fails to state a cause of action. The Second Circuit has stated that it is doubtful that the Health Insurance Portability and Accountability Act of 1996 (HIPAA) provides a private right of action (Bond v Conn. Bd. of Nursing, 622 Fed. Appx. 43 [2d Cir. 2015]; Warren Pearl Constr. Corp. v Guardian Life Ins. Co. of Am., 639 F. Supp. 2d 371 [SDNY 2009]). The federal district courts in the Second Circuit have held that it does not (Thomas v Doe, 2020 U.S. Dist. WL 6263921 [Oct. 22, 2020]; Mele v Hill Health Ctr., 609 F. Supp. 2d 248, 255 [D. Conn. 2009] [holding that individuals cannot sue to enforce HIPAA or seek damages caused by alleged violations under other federal statutes]).
Moreover, claimant does not allege that defendant disclosed his mental health information to the general public. Rather, he alleges that H.O. Gallagher used confidential off the record MHU testimony in deciding the outcome of one of claimant's disciplinary hearings. DOCCS' regulations, however, permit the hearing officer to inquire into claimant's mental health outside the presence of the inmate (see 7 NYCRR §§ 254.6 [b, c and d]). Here, claimant has failed to allege a separate cause of action for unlawful disclosure by failing to allege a violation of a specific federal or state law which allows for a private right of action for the unlawful disclosure of mental or medical health information under the circumstances alleged herein (see generally, Fernandez v State of New York, 43 Misc3d 1221[A]).
Finally, it appears more likely that claimant is attempting to allege a constitutional claim or support for his wrongful confinement claim by raising the issue of the alleged unlawful disclosure, rather than a separate cause of action based on the alleged disclosure of his mental health information. If the latter, the allegations of unlawful disclosure would not affect his wrongful confinement claim as that claim has been dismissed as being untimely. If claimant is attempting to raise a separate constitutional claim, then that claim would also have to be dismissed. Claims based on alleged violations of rights guaranteed by the United States Constitution are governed by 42 USC § 1983. The Court of Claims lacks jurisdiction to hear such civil actions as the State of New York is not a person amenable to suit under the statute (Brown v State of New York, 89 NY2d 172 ). And to that extent the claim is attempting to raise a state constitutional tort, it too must be dismissed. A state constitutional tort is a very narrow remedy which is not available when there is another remedy available to enforce the constitutional right (Martinez v City of Schenectady, 97 NY2d 78 ). Here, the recognition of a state constitutional claim is neither necessary nor appropriate to ensure claimant's rights as the alleged wrongs could have been addressed in a federal civil rights claim and could have been addressed in a timely wrongful confinement claim. Thus, claimant has no cause of action based on his allegations of unlawful disclosure of his mental health records.
Based on the foregoing, Defendant's motion no. M-94874 for partial summary judgment is granted and those causes of action in claim no. 127572 based on allegations of wrongful confinement and disclosure of claimant's mental health records are dismissed. A trial on the remaining causes of action alleging assault and medical malpractice will be scheduled in the near future.
December 9, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion and affidavit of Assistant Attorney General Michael T. Feeley sworn to November 7, 2019, with annexed Exhibits A-D.