Opinion
# 2017-018-816 Claim No. 127757 Motion No. M-89831
05-04-2017
TREVOR PORTER v. STATE OF NEW YORK
TREVOR PORTER Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General
Synopsis
Claimant's motion for summary judgment granted to the extent that he established excessive wrongful confinement. The balance of Claimant's motion is denied.
Case information
| UID: | 2017-018-816 |
| Claimant(s): | TREVOR PORTER |
| Claimant short name: | PORTER |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127757 |
| Motion number(s): | M-89831 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | TREVOR PORTER Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 4, 2017 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant brings a motion for summary judgment. Defendant opposes the motion.
On April 5, 2016, Claimant filed a claim seeking damages for wrongful confinement at Cayuga Correctional Facility (hereinafter Cayuga). Claimant alleged that he suffered excessive wrongful confinement for 38 days, which includes 31 days of confinement beyond the maximum penalty allowed by the disciplinary guidelines of the Department of Corrections and Community Supervision (DOCCS) for a violation of the specific section of the DOCCS disciplinary policy and seven days of confinement after Claimant's misbehavior finding was reversed on administrative appeal.
The claim alleges that on November 25, 2015, Claimant was placed in the Special Housing Unit (SHU) and given a misbehavior report charging him with violating the Uniform Rules for the Department of Corrections and Community Supervision (7 NYCRR) section 270.2: Harassment (107.11) and Stalking (101.22). Claimant alleges that these charges were his first alleged infractions since May 11, 2009, however, he also alleges that DOCCS failed to comply with a prior Court Order from April 20, 2015, (Porter v Stallone, Index No. 2014-0893, Supreme Court, Cayuga County) directing that a disciplinary report from August 11, 2014, be expunged, and that the failure to expunge the 2014 discipline prejudiced the handling of the November 2015 misbehavior incident, since prior disciplinary history is considered as part of the disciplinary process for any new charges. Claimant pleaded guilty to the harassment charge but not guilty to the stalking charge.
At the commencement of the hearing on December 1, 2015, no witnesses were called and the hearing was adjourned. On December 8, 2015, when the hearing resumed for what Claimant thought would be the disposition, Lieutenant Walsh was called as a witness and testified to a personal relationship between Claimant and Officer Knapp as support for the stalking charge. Claimant alleges that off-the-record, prejudicial conduct occurred between the hearing dates. Claimant was found guilty of both charges and a 90-day SHU confinement was imposed as well as 90 days loss of recreation, loss of packages, loss of telephone, and loss of visits. He appealed the finding on the stalking charge on December 10, 2015, alleging that the hearing examiner did not have sufficient evidence to support a finding of misbehavior on the stalking charge. The findings were reversed on January 25, 2016, and Claimant argues he should have been released from the SHU immediately with all privileges. Claimant was not released from the SHU until February 1, 2016, when he was transferred to Clinton Correctional Facility.
Claimant alleges that based upon only the harassment charge, he should have been held in the SHU for only 30 days; instead, he alleges that he was held for 61 days and denied commissary privileges for the full 90 days. Claimant sets forth a detailed list of the regulatory violations. He also indicates that despite good behavior in the SHU, he was denied any additional items authorized by 7 NYCRR section 303, was completely isolated, and not permitted to talk for 68 days. Claimant seeks $75 per day for 31 days of wrongful confinement and $100 per day for seven days excessive wrongful confinement after the administrative reversal on the misbehavior findings.
Defendant interposed a verified answer denying the claim and asserting eight affirmative defenses. Claimant now seeks summary judgment on the claim for excessive wrongful confinement from January 25 through February 1, 2016, and for violation of his due process rights resulting in his wrongful confinement from December 25, 2016 through January 24, 2016.
In considering Claimant's motion for summary judgment, the Court is required to view the evidence in the light most favorable to the non-moving party and to give that party the benefit of any favorable inference from the evidence submitted (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept 2011]; Ruzycki v Baker, 301 AD2d 48, 50 [4th Dept 2002]; Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]). Summary judgment, as often said, is a drastic remedy which should only be granted where there are no issues of fact and the claim can be decided as a matter of law (Sillman v Twentieth Century-Fox Film, Corp., 3 NY2d 395 [1957]). On a motion for summary judgment, the movant has the burden to establish his right to judgment as a matter of law by proof in admissible form (Friends of Animals v Assoc. Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]). The "[f]ailure to make such a showing requires denial of the motion regardless of the sufficiency of the opposing papers." (Winegrad v New York Univ. Med. Ctr. 64 NY2d 851, 853 [1985]). It is not the place of the Court on a motion for summary judgment to determine credibility or decide issues of fact (see Knepka v Tallman, 278 AD2d 811 (4th Dept 2000]; Furlong v Storch, 132 AD2d 866, 868 [3d Dept 1987]).
A cause of action for wrongful confinement, is a "species" of the tort of false imprisonment (Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 1986]). It is Claimant's burden to 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., Schanberger v Kellogg, 423 US 929 [1975]). Typically, the primary issue in contention is privilege. The State's restrictive confinement of an inmate is privileged if it was done in accordance with DOCCS regulations (Lee v State of New York, 124 AD2d 305, 307 [3d Dept 1986]; Gittens,132 Misc 2d at 402). Where DOCCS employees have conducted the disciplinary process in accordance with the governing statutes and regulations, their actions involve discretionary conduct that is quasi-judicial in nature and absolutely immune from liability (Arteaga v State of New York, 72 NY2d 212, 214 [1985]). This immunity attaches even if it is later determined that the hearing examiner's determination is reversed by administrative appeal or after an Article 78 proceeding (Id., at 215). There is no immunity, however, where there is a violation of an inmate's nondiscretionary due process rights that effect the outcome of the hearing causing actual prejudice or injury (Id., at 221; Davidson v State of New York, 66 AD3d 1089, 1089 [3d Dept 2009]; Vasquez v State of New York, 10 AD3d 85 [3d Dept 2004]).
Where a finding of misbehavior is reversed after an administrative appeal or Article 78 proceeding, and there is no other regulatory authority to hold an inmate in restrictive confinement, discretionary conduct is not involved and continued confinement is not privileged. In this circumstance, "[a]n inmate's release from an imposed disciplinary confinement in keeplock or otherwise, upon the expiration of an ordered penalty, is . . . a purely ministerial act invoking no discretionary authority . . . . The purported failure to have timely released a claimant from keeplock, which might be termed ministerial neglect, vitiates the Rules and Regulations of the Department of Correctional Services and liability may ensue." (Gittens, 132 Misc 2d at 406).
Claimant divides his proof and arguments into three parts. He first addresses the time frame from January 25, 2016, the date the misbehavior findings from the Superintendent's Hearing of December 8, 2015 were modified, dismissing the charge for stalking (violation of section 101.22 [7 NYCRR § 270.2 [B] [2] [v] [101.22]). Defendant acknowledges that Claimant's administrative appeal modified the determination made at the December 8, 2015 Superintendent's Hearing, and reduced the imposed penalty from 90 days in the SHU to 61 days. Defendant does not assert any reason for Claimant's continued confinement in the SHU after the administrative reversal and the expiration of those 61 days (compare Collins v State of NewYork, UID No. 2016-032-107 [Ct Cl, Hard, J. Jan. 11, 2016]; Homer v State of New York, UID No. 2001-013-515 [Ct Cl, Patti, J., Dec. 31, 2001]). Claimant has adequately established that on the misbehavior finding for harassment ([7 NYCRR § 270.2 [B] [8] [ii] [101.22]), he was required to serve 61 days in the SHU, 61 days denial of phone, recreation and package privileges and 6 days loss of visitation privileges. He was placed in the SHU on November 25, 2015, so his 61-day confinement should have expired on January 25, 2016. Claimant submits his sworn affidavit that he was not released from the SHU until February 1, 2016, when he was transferred to Clinton Correctional Facility. Claimant alleges that there was no identified reason or regulatory authority for his continued confinement in the SHU after January 25, 2016, stated another way, his continued confinement was not privileged (see Soto v State of New York, UID No. 2016-032-512 [Ct Cl, Hard, J. Dec. 20, 2016]).
Affirmation in Opposition ¶ 3. --------
Defendant, who bears the burden to establish privilege (Hollender v Trump Vil. Coop., 58 NY2d 420,425 [1983]; Gonzalez v State of New York, 110 AD2d 810, 812 [2d Dept 1985]) has come forward with no proof to dispute Claimant's prima facie claim for excessive wrongful confinement. Accordingly, Claimant has met his burden to establish, as a matter, of law nondiscretionary excessive wrongful confinement from January 26-31, 2016, for six days.
Claimant also alleges that he was wrongfully confined from December 25, 2015 until January 24, 2016, when the State violated his due process rights. Claimant has not established, as a matter of law, that his due process rights were violated or that any due process violation caused him prejudice or injury. No documentation from the hearing or the hearing transcript was provided to support his allegations that the hearing was closed and improperly reopened, and information not presented at the hearing was used to support the findings of misbehavior. Claimant also did not establish that the State relied upon a prior disciplinary finding from August 19, 2014, that it was ordered to expunge, when it imposed the 61-day penalty for the harassment charge. The burden is on Claimant to establish a nondiscretionary due process violation of the rules and regulations that caused him to suffer injury or damage as a matter of law, which he has not done by his motion. Allegations of wrongdoing that do not support a violation of the due process regulatory rules and involve discretion cannot be the basis for liability.
Accordingly, Claimant's motion is GRANTED to the extent that he established excessive wrongful confinement for the period from January 25, 2016, following the reversal of his finding of misbehavior for the stalking charge and expiration of his imposed penalty of 61 days, until his release February 1, 2016. LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
The balance of Claimant's motion is DENIED.
May 4, 2017
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affidavit of Trevor Porter, sworn to January 10, 2017, in support, with exhibits attached thereto. 3) Affirmation of Ray A. Kyles, Esquire, Assistant Attorney General, in opposition.