Opinion
# 2020-059-020 Claim No. 129870
07-14-2020
DANIEL EVERETT v. THE STATE OF NEW YORK
Daniel Everett, Pro Se HON. LETITIA JAMES, ATTORNEY GENERAL By: Dorothy M. Keogh, Assistant Attorney General
Synopsis
Case information
| UID: | 2020-059-020 |
| Claimant(s): | DANIEL EVERETT |
| Claimant short name: | EVERETT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129870 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | MAUREEN T. LICCIONE |
| Claimant's attorney: | Daniel Everett, Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL By: Dorothy M. Keogh, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 14, 2020 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This is a claim for money damages by Daniel Everett (Claimant or Everett), an inmate appearing pro se, against the State of New York (State or Defendant) alleging that he was wrongfully confined in "keeplock" while he was incarcerated at the Sing Sing Correctional Facility (Sing Sing). A trial was held via video conference on November 21, 2019 and the date for post-trial submissions was adjourned several times to a final date of July 15, 2020 due to adjournment requests and the Covid-19 pandemic.
Everett's claim and the undisputed trial testimony established that a urine sample for purposes of random drug testing was taken from Everett on October 7, 2016 (Defendant's trial exhibit A). The sample was taken in accordance with Department of Corrections and Community Supervision (DOCCS) policy addressing situations where an inmate such as Everett has had a history of drug use while incarcerated (Tr p. 36, l. 4). The State conducted two tests and positive results for THC 50 (marijuana) were reported on October 12 and 26, 2016 (Tr P. 36). As a consequence, Everett was confined in keeplock on October 26, 2016 and was issued a misbehavior report the following day, October 27, 2016 (id). Thereafter, on November 3, a Tier III disciplinary hearing was commenced and Claimant was found guilty of drug use on December 1, 2016 (id). The hearing disposition mandated loss of certain privileges for varying time periods and keeplock for a 90 period which ended on January 24, 2017 (id). Everett pursued an administrative appeal which was decided on January 24, 2017. The decision on appeal affirmed the hearing officer's determination of guilt, the 90-day keeplock sentence, and the loss of privileges.
Prior to the commencement of the hearing, Claimant was provided a "tier assistant" and requested, among other things, a copy of the "Siemens SYVA Emit Operating Manual," i.e., the manufacturer's manual for operation of the urine testing equipment (claim, Court trial exhibit 1 ¶ 8). His request was granted and Everett was permitted to review the manual for two hours. At the Tier III hearing Everett asserted that the urine analysis tester failed to follow the manufacturer's testing recommendations and DOCCS directives. More specifically, Everett claimed that the tester did not comply with the requirement that the reagent vials in which the urine samples were stored each have the same lot number and that the record did not reflect that the vials were stored under identical conditions as Everett alleged was proper procedure. There was nothing in Everett's trial testimony or the record to indicate how the alleged failure to follow these recommendations may have affected the positive test results.
On December 11, 2016, while Everett was in keeplock and prior to the January 24, 2017 decision on his administrative appeal, he received a recording of the Tier III hearing pursuant to his earlier Freedom of Information Law request (Claimant's trial exhibit 1). The recording he received was inaudible (id). Thereafter, in or about March, 2017, Claimant filed a verified petition pursuant to CPLR Article 78 in Supreme Court, Westchester County, seeking to reverse the Tier III disposition of guilt and raising, among other issues, the alleged failure to follow proper procedures on the part of the urine tester and that the appeal was not meaningfully considered because there was no audible recording of the underlying hearing (Court trial exhibit 1, exhibit C).
Apparently as a result to the Article 78 petition, on May 25, 2017, the DOCCS Commissioner issued an order reversing the Tier III disposition of guilt and ordering the disposition expunged from Claimant's records because "the original hearing tape [was] inaudible" (Defendant's trial exhibit A). On May 26, 2017 the State submitted a verified answer to the Article 78 petition indicating that the petition was moot because the relief requested had been granted by way of the May 25, 2017 Commissioner's order (Court trial exhibit 2).
On April 3, 2017 Everett filed a notice of intention to file a claim and then on June 1, 2017 proceeded to file this claim for wrongful confinement citing the DOCCS Commissioner's reversal order and seeking monetary damages for the 90 days he spent in keeplock. Claimant made a motion for summary judgment pursuant to CPLR 3212 which was denied by decision and order dated May 10, 2018 (Ct Cl, Motion No. M-91616 [Scuccimarra, J., May 10, 2018]).
At the close of Claimant's trial testimony, the State moved to dismiss the claim asserting that (1) Claimant had failed to allege a violation of a due process safeguard that would deprive the State of absolute immunity and (2) that he did not prove that the outcome of his Tier III hearing would have been different had the urine test been conducted differently or the tape had been audible. The Court reserved decision (Tr. p. 31-32). The State's motion to dismiss now is granted on the first ground for the reasons set forth below.
"[T]he State is accorded absolute immunity for the actions of its employees involved in the investigation and prosecution of disciplinary charges brought against inmates in a correctional facility and for the actions of the hearing officer charged with presiding over and reviewing such matters. This immunity covers discretionary conduct due to its quasi-judicial nature, even if that discretion was erroneously exercised or the findings were subsequently overturned" (Haddock v State of New York, UID No. 2018-054-015 [Ct Cl, Rivera, J., March 7, 2018], citing Arteaga v State of New York, 72 NY2d 212 [1988]; Loret v State of New York, 106 AD3d 1159 [3d Dept 2013]; Holloway v State of New York, 285 AD2d 765 [3d Dept 2001]; Varela v State of New York, 283 AD2d 841 [3d Dept 2001]). Absolute immunity may be lost, however, if the State acted in contravention of a governing rule or regulation which caused the inmate to suffer actual prejudice or a deprivation of his due process rights (see Davidson v State of New York, 66 AD3d 1089 [3d Dept 2009]; Arteaga v State of New York 72 NY2d 212 [1998]).
The alleged violation of drug testing protocols has been held "not to relate to the due process concerns of [a] hearing and do not serve as a basis for [a] wrongful confinement cause of action" (Miller v State of New York, 156 AD3d 1067, 1067 [3d Dept 2017]). Even where a disciplinary hearing determination of guilt is vacated by way of an Article 78 proceeding because a urine sample was mishandled, a wrongful confinement claim will not stand "because the violation of drug testing directives does not constitute a due process violation" Ramirez v State of New York, 175 AD3d 1635, 1638 [3d Dept 2019]).
A Tier III hearing is required to be electronically recorded in accordance with 7 NYCRR § 253.6 [b]. However, while the failure to record the hearing in full in accordance with this regulations will result in an expungement of the disciplinary record by way of an Article 78 proceeding, such a failure does not implicate a constitutional due process right (see Diaz v State of New York, 155 AD3d 1279 [3d Dept 2017]; Auricchio v Goord, 273 AD2d 571[3rd Dept 2000]). Accordingly, since the failure to electronically record a disciplinary hearing does not "defeat the full immunity accorded correction personnel in the exercise of their quasi-judicial duties" (Ramsey v State of New York, UID No. 2018-038-102 [Ct Cl, DeBow, J., Jan 12, 2018], quoting Wilson v State of New York, UID No. 2014-015-581 [Ct Cl, Collins J., May 12, 2014], citing Wolff v Mc Donnell, 418 US 539, 561-570 [1974]), a claim for wrongful confinement cannot lie.
Moreover, "neither regulations nor the mandates of due process principles require that an officer conducting an inmate's administrative appeal review the verbatim record of his disciplinary hearing" (Matter of Vigliotti v Duncan, 10 AD3d 776, 777 [3d Dept 2004], lv denied, 4 NY3d 738 [2004], citing Matter of Rivera v Goord, 248 AD2d 902, [3d Dept 1998]; Matter of Reveron v Coughlin, 142 AD2d 860 [3d Dept 1988]; Matter of Melvin v Kelly, 126 AD2d 956 [4th Dept 1987], lv denied 69 NY2d 609 [1987]; see also 7 NYCRR 253.8). Thus, although the appellate official was unable to listen to the electronic recording of the Tier III hearing, no due process right stripping the State of absolute immunity was implicated. The wrongful confinement claim must be dismissed.
July 14, 2020
Hauppauge , New York
MAUREEN T. LICCIONE
Judge of the Court of Claims