Opinion
# 2015-044-004 Claim No. 115393
04-28-2015
SHAWN GREEN v. THE STATE OF NEW YORK
SHAWN GREEN, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Roberto Barbosa, Assistant Attorney General
Synopsis
After trial, Court finds inmate claimant was wrongfully confined for six days, denied personal hygiene items, and awards damages of $225; dismisses other causes of action.
Case information
| UID: | 2015-044-004 |
| 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): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | SHAWN GREEN, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Roberto Barbosa, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 28, 2015 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On June 16, 2008, claimant, an inmate proceeding pro se, filed this claim alleging that while he was incarcerated at Elmira Correctional Facility (Elmira), he was denied participation in a specific religious service (Saviours' Day) which was held on February 26, 2008, that he was essentially denied recreation on numerous occasions, that he was confined to his cell for six days without issuance of a misbehavior report and that he was discriminated against based upon his race when he was removed from the "a.m. recycling program." He also contends that from April 2002 through March 2008, the facility administration 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 Corrections and Community Supervision (DOCCS) Directive 4921.
Claimant then filed a supplemental claim on July 7, 2008 alleging that he was also wrongfully confined in violation of DOCCS Directive 4910 when he was retained in a temporary isolation room on a "drug watch," and that while he was subject to such confinement, he was deprived of bedding and personal hygiene items also authorized by Directive 4910. Claimant thereafter filed an amended claim (on July 24, 2008) which in addition to the previously listed causes of action, includes a cause of action to recover for personal property which was allegedly improperly confiscated from him, and to recover for being charged excess postage when he mailed a particular package. Defendant filed and served responsive pleadings and asserted several affirmative defenses.
There is no basis for claimant's separately alleged cause of action for neglect investigation of the associated facility claim. Accordingly, that cause of action is hereby dismissed.
The Court previously dismissed claimant's cause of action for wrongful confinement as it pertained to the drug watch (Green v State of New York, UID No. 2009-044-562 [Ct Cl, Schaewe, J., Oct. 13, 2009]). The Court also dismissed claimant's causes of action for deprivation of the right to participate in Saviours' Day, and for breach of contract and tortious interference with prospective contractual relations with regard to the amendment of Directive 4921 (Green v State of New York, UID No. 2012-044-505 [Ct Cl, Schaewe, J., Aug. 28, 2012]). Accordingly, the remaining issues to be resolved at trial are: denial of recreation on numerous occasions, wrongful confinement to his cell for six days without the issuance of a misbehavior report, racial discrimination when removed from the recycling program, deprivation of bedding and personal hygiene items authorized by Directive 4910 while he was in isolation on the drug watch, confiscation of personal property, and excessive postage charged for mailing an item. A trial was conducted by video conference on April 15, 2015, with the parties appearing at Elmira, and the Court sitting in Binghamton, New York.
Claimant's Claim No. 116037 was also scheduled to be conducted by video conference from Elmira on April 15, 2015. At the start of that trial, claimant advised the Court that he had recently been confined in a Special Housing Unit and had not yet received his property, including his legal papers concerning, among other things, both Claim No. 116037 and this claim. The Court advised claimant that an adjournment of the trial of this claim as well as the trial of Claim No. 116037 would be granted. Claimant declined the adjournments and indicated that he wished to proceed with the trials of both claims without his papers. Nevertheless, claimant submitted additional documentation and argument after trial which he requested that the Court consider, in light of his lack of pre-trial access to his property. Because claimant was offered and could have received adjournments of the trials, the Court declines to consider his post-trial submissions.
Denial of Recreation
Claimant testified that as a result of his diabetic condition, he is required to attend a clinic for shots at 3:00 p.m. He said that as a result, he was repeatedly denied access to recreation from February 2008 through December 2010. 7 NYCRR 1704.6 (b) provides (with exceptions not relevant here) that "[a]n inmate shall be permitted to exercise outside of his or her cell for at least one hour daily." Claimant filed a grievance (Claimant's Exhibit 7 at 1) concerning the matter, as he apparently wanted an accommodation of using the showers and phones on the housing block rather than in the recreation yard. The grievance was denied by the Superintendent (Claimant's Exhibit 7 at 5). The denial was upheld by the Central Office Review Committee (CORC) and subsequently confirmed by the Appellate Division, Third Department (Matter of Green v Bradt, 69 AD3d 1269, 1270 [3d Dept 2010], lv denied 14 NY3d 710 [2010]).
Sergeant Schmelzle conducted an investigation as part of the grievance. He issued a memorandum to Captain Hughes (Defendant's Exhibit B) which stated that there were only 2 times in the first 11 days of March 2008 that claimant might not have been able to attend recreation. Schmelzle confirmed that claimant was let out of the housing block between 3:00 p.m. and 3:15 p.m. every day to go to the infirmary. He also indicated that claimant has programs both in the morning and afternoon, and that his housing block has evening recreation every other day, so claimant could use the showers and phone at that time.
The Third Department specifically stated that "notwithstanding the necessity of receiving periodic insulin injections at the infirmary, [claimant] was still afforded access to recreation, showers and phones in accordance with . . . 7 NYCRR 1704.6" (id.). Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party, where the identical issue was necessarily decided in the prior action and is decisive in the present action (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]). Although defendant did not assert the affirmative defense of collateral estoppel in its answer to this claim, that is because the claim was filed in 2008, well before the Third Department's determination. It is well-settled that the Court can sua sponte amend pleadings to conform to the proof (see CPLR 3025 [b] and [c]). Accordingly, the Court hereby amends defendant's pleadings to include the affirmative defense of collateral estoppel (see River Val. Assoc. v Consolidated Rail Corp., 182 AD2d 974, 976 [3d Dept 1992]; Hamid v State of New York, UID No. 2011-048-507 [Ct Cl, Bruening, J., Dec. 29, 2011]). Claimant is precluded from relitigating the issue of access to recreation, showers and phones. That cause of action is hereby dismissed.
Wrongful Confinement
At trial, claimant testified that he was wrongfully confined from May 8, 2008 through May 13, 2008. He stated that no disciplinary process was initiated, and that no one appears to know who issued the confinement order. Defendant's counsel, Assistant Attorney General (AAG) Roberto Barbosa, stipulated that no disciplinary process was initiated in relation to the confinement. At trial, claimant requested damages in the amount of $100 per day.
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 [Ct Cl 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 keeplock, as long as it proceeded in conformance with its regulations (see e.g. Arteaga v State of New York, 72 NY2d 212 [1988]).
There does not appear to be any dispute that defendant both intended to and did confine claimant without his consent from May 8, 2008 through May 13, 2008. Therefore, the only remaining issue is whether that confinement was privileged.
At trial, Lieutenant R. Semski testified that he had investigated the circumstances surrounding claimant's keeplock. He stated that the logbook indicates that claimant was confined, but the signature of the correction officer who issued the confinement order was illegible, and he was unable to determine who authorized the confinement. Semski issued a memorandum to Deputy Chief of Security Wenderlich to that effect (Defendant's Exhibit A). Semski stated that an inmate can be locked up for 48 hours for investigation, but after that time disciplinary action should be taken. Semski confirmed that no disciplinary action was taken.
Semski's 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 [Rule 106.10]). 7 NYCRR 251-1.6 (a) provides that
Rule 106.10 provides that "AN INMATE SHALL OBEY ALL ORDERS OF DEPARTMENT PERSONNEL PROMPTLY AND WITHOUT ARGUMENT."
[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 Ct 1983 ; see also Matter of Pettus v West, 28 AD3d 907 [3d Dept 2006]). The regulation also requires that the officer confining the inmate to "report such fact, in writing, to the superintendent as soon as possible, but in any event before going off duty" (7 NYCRR 251-1.6 [e] [1]). 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]). However, 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]).
In previously denying summary judgment, this Court held that "[N]otwithstanding 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, UID No. 2007-015-552 [Ct Cl, Collins, J., May 10, 2007] [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])" (Green, UID No. 2009-044-562 at 3).
Claimant was confined in keeplock on May 8, 2008, perhaps based upon an apparent violation of Rule 106.10. In order to be timely, a hearing would have to have been commenced on or before May 14, 2008 (7 NYCRR 251-5.1 [a]). Claimant would have to have received a misbehavior report at the latest on May 13, 2008 (7 NYCRR 253.6 [a] and 254.6 [a] provide that the report be served at least 24 hours prior to the start of either Tier II or Tier III disciplinary hearings). However, no misbehavior report was ever issued. Although claimant's confinement may initially have been authorized, defendant failed to initiate the disciplinary procedure as contemplated by the regulations, and has consequently lost its immunity (see Arteaga, 72 NY2d at 220-221). Accordingly, the Court concludes that claimant was wrongfully confined for six days. The Court further finds that damages in the amount of $30 per day adequately compensate claimant for this wrongful confinement, and claimant is hereby awarded $180 for this cause of action.
Discrimination
With respect to his claim of discrimination, claimant alleged that he was removed from the recycling program solely because of his race. At trial, he provided a chart concerning the number of inmates assigned to the program and their ethnicity as white, black/other, or hispanic (Claimant's Exhibit 3). There were always significantly more Caucasian inmates assigned to the program than non-Caucasian inmates. Claimant testified that defendant's proffered reason for removing him from the program - that he purportedly threatened two other inmates if they did not steal cleaning materials for him - was pretextual because he already had access to bleach and other cleaning supplies as part of his regular duties in that program. Claimant further stated that Lieutenant Semski did not interview him regarding the allegations, and it was not proven that he made such a threat.
Claimant also submitted a copy of Grievance No. EL-34-193-08 (Claimant's Exhibit 2). An investigation revealed that sometime after claimant was assigned to the program on March 10, 2008, Lieutenant Semski received a confidential note that claimant should be removed for security reasons. Claimant was notified and was removed from the program on April 6, 2008, but because the nature of the reason was confidential, claimant was not given details. Nevertheless, claimant obtained a copy of the confidential memorandum from Correction Officer (CO) Reinhart to Lieutenant Semski (Claimant's Exhibits 1 and 6) indicating that two workers told Reinhart that claimant asked "them to steal bleach and other cleaning supplies, or he would punch them."
Lieutenant Semski testified that he did receive such a memorandum from Reinhart, dated March 30, 2008. Semski stated that confidential information revealed that claimant was a security concern with relation to caustic chemicals. Semski said he conducted an investigation, and then recommended that claimant be removed from the recycling program. Semski did not remember who he interviewed.
Deputy Superintendent in Charge of Security Piccolo also testified on defendant's behalf regarding this cause of action. Piccolo stated that inmates are assigned program activities with ethnic balance in mind. He testified that when an inmate's record indicates that the inmate was removed from a program for security reasons (as claimant's does in this instance), there is no impact on the inmate regarding other program assignments, and that the removal casts no reflection on the inmate.
The Inmate Grievance Review Committee found that claimant was removed from the program for security reasons and would not be allowed to return. Claimant's appeal was denied by the Superintendent as well as CORC, which stated that it would continue "to uphold the discretion of facility administrations to make top level decisions, when necessary, for the safety, security and good order of their facilities with regards to the appropriateness of or removal from a particular program assignment for a particular inmate."
The Court notes that the determination of this grievance was confirmed by the Appellate Division, Third Department, based upon the "considerable deference [accorded to prison officials] in matters relating to institutional security" (Matter of Green, 69 AD3d at 1270). As previously set forth herein, collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party where the identical issue was necessarily decided in the prior action and is decisive in the present action (D'Arata, 76 NY2d at 664). Although defendant did not assert the affirmative defense of collateral estoppel in its answer to this claim, again that is because the claim was filed in 2008, well before the Third Department's determination. The Court hereby amends defendant's pleadings to include the affirmative defense of collateral estoppel (see River Val. Assoc., 182 AD2d at 976; Hamid, UID No. 2011-048-507). Claimant is precluded from relitigating the validity of the reason for defendant's removal of him from the recycling program, and that cause of action is dismissed.
The Court also notes that it found Lieutenant Semski's testimony regarding the basis for claimant's removal from the program being security concerns completely credible, and that claimant did not rebut that valid basis for the removal.
Personal Items on Drug Watch
Claimant testified that he was in isolation (drug watch) from June 22, 2008 through June 24, 2008. He stated that prior to entering isolation, he was stripped of all garments down to his underwear, and was given a gown and a mat. He said that there was nothing in the isolation room but a stool and a desk, and there was no mattress, no utensils and no hygiene items. He said he specifically requested hygiene items. In support of this cause of action, claimant submitted a copy of Elmira Policy and Procedure (EPP) § 8.12 (Claimant's Exhibit 4, 1-4), DOCCS Directive 4910 (Claimant's Exhibit 4, 5-30), and his grievance regarding the issue (Claimant's Exhibit 5).
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]). EPP § 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" (EPP § 8.12 [IV] [E] [1]).
Defendant's witnesses had no substantive testimony regarding this cause of action. As claimant's testimony was uncontradicted, the Court finds that he was denied hygiene items required under EPP § 8.12 and Directive 4910 for three days. The Court further finds that damages in the amount of $15 per day, or a total of $45, will adequately compensate claimant for this deprivation.
Bailment
With respect to his bailment cause of action, claimant testified that his personal gloves were confiscated while he was in the recreation yard. He stated that he provided Sergeant Rathbun a copy of the receipt for the gloves during the investigation. A copy of Facility Claim 110-0099-08 as well as the underlying investigation documentation was submitted as Defendant's Exhibit C.
Sergeant Rathbun testified at trial that he conducted an investigation regarding the matter. He stated that he interviewed claimant, who stated that the gloves were Owen Handball Gloves and provided a receipt for purchase. He also interviewed CO Shope, who indicated that the gloves he confiscated from claimant were State-issued work gloves, which were not allowed in the recreation yard. Shope wrote a memorandum to Rathbun (Defendant's Exhibit C at 5) which indicated that he had confiscated work gloves, but elected not to issue claimant a misbehavior report. Rathbun testified that he credited Shope's version of events, because a 20-year veteran CO would know the difference between State-issued work gloves and handball gloves.
Claimant argued that Shope's version of events was inaccurate, because if Shope had confiscated the gloves he should have issued a contraband receipt pursuant to Directive 4910. Conversely, Rathbun stated that there were major disturbances at the facility that day, and the officers were very busy trying to restore order. He said that the disruption started during the day and continued through the night. He stated that under those circumstances, confiscation receipts were not issued, although they normally would have been issued pursuant to Directive 4733.
Claimant's burden of establishing a prima facie case of negligence is satisfied once he demonstrates the delivery of property to defendant, and defendant's failure to return it in the same condition (Claflin v Meyer, 75 NY 260, 262 [1878]; Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]). The burden then shifts to defendant to come forward "with evidence to overcome the presumption" (Weinberg v D-M Rest. Corp., 60 AD2d 550, 550 [1st Dept 1977]).
In this instance, the Court finds that claimant has not met his burden of proof of establishing that his personal property was confiscated. The Court does not credit claimant's testimony that the gloves taken by CO Shope were claimant's personal gloves, as opposed to State-issued work gloves. Accordingly, the Court hereby dismisses this cause of action.
Postage
With regard to his final cause of action, claimant testified that he was overcharged for postage, a container (box) and special postal service (a total of $6.06) to mail a "D"-ring belt. He asserted that while the belt cost only $2.50, he was charged for a box, a confirmation receipt which he did not request, and excessive postage to mail the belt. He argued that it could have been sent fourth-class mail, but he had never been advised that he was allowed to do so. Claimant filed Facility Claim No. 110-0098-08 regarding the issue (Defendant's Exhibit D). The claim investigation report indicates that all procedures were followed in mailing the item (Defendant's Exhibit D at 2).
CO Bentley testified for defendant at trial. Although he did not work in the facility's Package Room at the time of the incident, he stated that the procedures had not changed. When an inmate's items were mailed out, they would be boxed up, weighed on a calibrated scale, and the appropriate charges would be determined. A copy of the relevant procedures (EPP § 8.81) was submitted into evidence (Defendant's Exhibit E). Bentley testified that some form of delivery receipt must be used for every piece of outgoing mail, whether it be insured, certified or delivery confirmation (EPP § 8.81 [V] [A] [2]). Bentley testified that the procedure required the inmate to be billed for the cost of insurance or delivery confirmation, the box used, and the postage (EPP § 8.81 [V] [B] [2] [d]).
It is apparent that the procedure required a confirmation slip, whether claimant desired one or not, and that mail was required to be sent in a box (EPP § 8.81 [III]), even though claimant argued it could have been sent in a manila envelope. Further, the item was weighed and postage determined in that manner. The Court finds that defendant followed all appropriate procedures in mailing claimant's belt, and accordingly dismisses this cause of action.
Conclusion
In conclusion, the Court has dismissed the causes of action for denial of recreation, discrimination in the removal of claimant from the recycling program, the bailment regarding the gloves, and the excess postage. The Court further found that claimant was wrongfully confined for six days, and awarded damages in the amount of $180 as reasonable and fair compensation (see Makas v State of New York, UID No. 2011-048-502 [Ct Cl, Bruening, J., Sept. 30, 2011]). The Court also found that claimant was wrongfully denied personal hygiene items on drug watch for three days, awarding damages in the amount of $45. Accordingly, claimant is hereby awarded damages in the total amount of $225. To the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).
Any and all motions on which the court may have previously reserved or which were not previously determined, are hereby denied.
Let judgment be entered accordingly.
April 28, 2015
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims