Opinion
# 2018-040-036 Claim No. 128804 Motion No. M-90929 Motion No. M-91009
04-25-2018
RICARDO RAMIREZ v. THE STATE OF NEW YORK
PRISONERS' LEGAL SERVICES OF NEW YORK By: Alissa R. Hull, Esq., Staff Attorney ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq., Senior Attorney
Synopsis
Defendant's Motion for summary judgment dismissing the Claim granted and Claimant's Cross-Motion for summary judgment denied as moot regarding the Claim for wrongful confinement.
Case information
| UID: | 2018-040-036 |
| Claimant(s): | RICARDO RAMIREZ |
| Claimant short name: | RAMIREZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128804 |
| Motion number(s): | M-90929, M-91009 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | PRISONERS' LEGAL SERVICES OF NEW YORK By: Alissa R. Hull, Esq., Staff Attorney |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esq., Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | April 25, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's Motion for summary judgment is granted and the Claim herein is dismissed, and Claimant's Motion for summary judgment is denied as moot.
This Claim, which was filed with the Office of the Clerk of the Court on November 14, 2016, alleges that Claimant, an inmate in custody of the New York State Department of Corrections and Community Supervision (hereinafter, "DOCCS"), was wrongfully confined to the Special Housing Unit (hereinafter, "SHU") at Riverview Correctional Facility (hereinafter, "Riverview"), following a Tier III disciplinary hearing, where he was found guilty of violating Standards of Inmate Behavior Rule 113.24 (drug use).
By Motion No. M-90929, Defendant moves for summary judgment pursuant to CPLR 3212 dismissing the Claim. By Motion No. M-91009, Claimant moves for summary judgment pursuant to CPLR 3212 in his favor.
Though the State moves on the alternate ground of CPLR 3211(a)(7), the Court will consider the State's application as solely one for summary judgment (see Oppenheimer v State of New York, 152 AD3d 1006 n 1 [3d Dept 2017]).
The events giving rise to this action are not in dispute. On September 22, 2014, Correction Officer (hereinafter, "CO") Bleau tested a sample of Claimant's urine, which came back positive for the presence of Tetrahydrocannabinol (hereinafter, "THC") (Affirmation in Support of Thomas Trace, Esq., Senior Attorney [hereinafter, "Trace Affirmation in Support"], Ex. D, ¶ 3). CO Bleau issued an Inmate Misbehavior Report charging Claimant with drug use (Trace Affirmation in Support, Ex. C). As a result, Mr. Ramirez was placed in the Special Housing Unit (hereinafter, "SHU") on that same day.
On September 25, 2014, a Tier III hearing was commenced by Hearing Officer (hereinafter, "HO") Murphy. Claimant pleaded not guilty to the drug use charge (Trace Affirmation in Support, Ex. E, p. 3). Claimant testified that positive test results were likely due to interactions of the authorized medication he was taking (id., Ex. E, pp. 4-5). The hearing was adjourned so that HO Murphy could consult with the medical staff at the facility concerning Claimant's theory of drug interactions (id., Ex. E, p. 9).
The hearing resumed on October 7, 2014, at which time, the HO, not Claimant, called CO Bleau to testify. The HO instructed Claimant that any questions he had for CO Bleau be addressed through the HO, and that he would determine the relevancy (Trace Affirmation in Support, Ex. E, p. 11). The HO asked CO Bleau a number of questions about the test results and the chain of custody of the urine sample he collected from Claimant. On a number of occasions, Claimant interrupted the proceedings, and attempted to pose questions directly to the CO about a six-hour gap in the chain of custody of the sample (id., Ex. E, p. 13; Ex. G). HO Murphy warned Claimant a number of times to stop interrupting (id., Ex. E, pp. 12-13), and finally he had Claimant removed from the hearing (id., Ex. E, p. 15). The HO took no further testimony or evidence in the matter, and then read his written disposition into the record, finding Claimant guilty of drug use, and imposing a penalty of nine months' confinement in SHU with loss of privileges, and recommending three months' loss of good time (id., Ex. E, p. 15; Ex. G). Claimant filed an administrative appeal, in which he asserted that there were chain of custody errors and that he was improperly removed from the hearing (id., Ex. G). The hearing disposition was affirmed on December 22, 2014 (id., Ex. G). Claimant ultimately was released from SHU on March 23, 2015 (id., Ex. H).
Mr. Ramirez brought an Article 78 proceeding in Albany County Supreme Court to challenge the disciplinary hearing determination, arguing that the HO improperly removed and excluded him from the hearing (Trace Affirmation in Support, Ex. F). The Honorable Denise A. Hartman annulled the determination and remitted the matter for a rehearing. Specifically, Acting Justice Hartman noted that an inmate has a fundamental right to be present at a disciplinary hearing, absent disruptive or obstructive behavior in which his presence is inimical to institutional safety and correctional goals. In this case, Acting Justice Hartman found that Claimant's conduct did not rise to the level that sanctioned his removal from the hearing. However, Acting Justice Hartman also determined that, while his removal was improper, it "did not rise to constitutional proportions," as the HO accepted no further testimony or evidence, and that, in any case, an inmate has no constitutional right to cross-examine a witness. Acting Justice Hartman held that, under the circumstances, expungement was not warranted, and remitted the matter for a new hearing (id., Ex. F).
On August 25, 2015, a rehearing took place, where Mr. Ramirez was found not guilty because the evidence supported the conclusion that the urine sample was not handled according to policy outlined in Directive # 4937 (Urinalysis Testing) (Affirmation in Opposition of Alissa R. Hull, Esq. [hereinafter, "Hull Affirmation in Opposition"], Ex. M).
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such a prima facieshowing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
The Court will address Defendant's Motion for summary judgment, as it is dispositive of the action and renders moot Claimant's application. In support of its Motion, Defendant argues that the Claim should be dismissed as a matter of law because the error that occurred at Claimant's first hearing did not violate Mr. Ramirez's constitutional rights and, therefore, the State retained its absolute immunity. Defendant also argues that there is no proof that the outcome of the hearing would have changed had the error not occurred.
In Arteaga v State of New York (72 NY2d 212, 214 [1988]), the Court of Appeals held that the State had absolute immunity from liability in the area of prison discipline when its employees act under the authority of and in full compliance with the statutes and regulations (Correction Law §§ 112, 137; 7 NYCRR; parts 250-254), and their actions constitute discretionary conduct of a quasi-judicial nature (see also Shannon v State of New York, 111 AD3d 1077, 1077 [3d Dept 2013]; Loret v State of New York, 106 AD3d 1159, 1159-1160 [3d Dept 2013], lv denied 22 NY3d 852 [2013]; Davis v State of New York, 262 AD2d 887, 888 [3d Dept 1999]). Such immunity attaches even if the determination is later reversed administratively or as the result of a successful article 78 proceeding (see Arteaga v State of New York, supra at 215). The Arteaga Court stated, however, that actions of correction employees confining an inmate "without granting a hearing or other due process safeguards (see 7 NYCRR 251-5.1; parts 252-254) would not receive immunity" (Arteaga v State of New York, supra at 221; see also Moustakos v State of New York, 133 AD3d 1268, 1269 [4th Dept 2015] [where "the actions of correction personnel have violated the due process safeguards contained in 7 NYCRR parts 252 through 254, those actions will not receive immunity" [internal quotation marks and citations omitted]).
Recently, in Miller v State of New York (156 AD3d 1067 [3d Dept 2017]), the Third Department rejected an inmate's claim that the State lost its veil of absolute immunity when drug testing directives were violated, stating that those directives "do not relate to the due process concerns of the hearing and do not serve as a basis for the wrongful confinement cause of action" (id. at 1068). Thus, not all rule or regulation violations implicate due process protections, and in turn, where there has been no due process violation, the State retains its absolute immunity (see, e.g., Bethune v State of New York, 50 Misc 3d 1216 [A] [Ct Cl, 2015], *3-4; Lamage v State of New York, UID No. 2015-044-002 [Ct Cl, Schaewe, J., Apr. 17, 2015]; Gifford v State of New York, UID No. 2015-049-024 [Ct Cl, Weinstein, J., Mar. 31, 2015]; Amato v State of New York, UID No. 2014-041-038 [Ct Cl, Milano, J., June 26, 2014]).
The Third Department in Matter of Alvarez v Goord (30 AD3d 118, 119 [3d Dept 2006]), draws the distinction between the due process protections afforded by the U.S. Constitution and the broader protections adopted by the State of New York.
Under the circumstances of this Claim, the Court further finds that Claimant's removal from his disciplinary hearing, likewise, did not "implicate a constitutional due process safeguard upon which liability may be predicated" (Bethune v State of New York, supra at *4). In doing so, the Court recognizes that it appears to be "an open question in the Second Circuit whether there is an independent [constitutional] right of a prisoner to be present at all times during a disciplinary hearing, or whether such a right to be present exists only insofar as it is required to enable the prisoner to exercise his or her right to call witnesses or present documentary evidence" (Vogelfang v Capra, 889 F Supp 2d 489, 514 [SD NY 2012]; Brooks v Piecuch, 245 F Supp 3d 431, 449 [WD NY 2017], appeal filed [2d Cir 2017]; see Cole v New York State Department of Corrections and Community Supervision, 2016 WL 5394752, *22 [ND NY 2016]).
A number of Federal court cases have found that "[p]rison inmates do not possess a constitutional right to be present during the testimony of witnesses during a disciplinary hearing" (Delee v Hannigan, 2018 WL 1517153, *5 [2d Cir 2018], quoting Francis v Coughlin, 891 F2d 43, 48 [2d Cir 1986]; see Vigliotti v Selsky, 2014 WL 1451984, *4 [WD NY 2014]; Murray v Arquitt, 2014 WL 4676569, *17 [ND NY 2014]; Willey v Kirkpatrick, 2013 WL 434188, *5-6 [WD NY 2013] [7 NYCRR 254.6 provides inmates with procedural safeguards beyond what is required by the Federal Constitution], vacated and remanded on other grounds 801 F3d 51, 63-65 [2d Cir 2015]); Bogle v Murphy, 2003 WL 22384792, *4-7 [WD NY 2003] [7 NYCRR 254.6 does not create a Federal constitutional due process right]).
The Third Department has followed this reasoning, holding that "an inmates's presence for the testimony of witnesses is not constitutionally required" (Matter of Honoret v Coughlin, 160 AD2d 1093, 1094 [3d Dept 1990], appeal denied 76 NY2d 710 [1990] [citing to Francis v Coughlin, supra]), or at least not unless it is the inmate who calls the witness (Matter of Graham v New York State Dept. of Correctional Servs., 178 AD2d 870 [3d Dept 1991], appeal denied 79 NY2d 756 [1992]; see Matter of Chastine v Selsky, 303 AD2d 801, 802 [3d Dept 2003]; Matter of LaBounty v Goord, 245 AD2d 675, 676 [3d Dept 1997], appeal dismissed 91 NY2d 1002 [1998]; Matter of Collazo v Coombe, 235 AD2d 654, 655 [3d Dept 1997]; Matter of Lindsay v Coughlin, 211 AD2d 920, 921 [3d Dept 1995]).
Other Federal cases have held that, among the procedures the Federal Constitution affords inmates at disciplinary hearings is "the opportunity to appear at the hearing and to call witnesses" (Young v Hoffman, 970 F2d 1154, 1156 [2d Cir 1992], cert denied 510 US 837 [1993]; see also Wilson v Calderon, 2017 WL 2881153, *11 [SD NY 2017], quoting Willey v Kirkpatrick, 801 F3d, supra at 63 [the due process protections afforded by the Federal Constitution may not comport with the "wholesale exclusion" of an inmate from a disciplinary hearing"]; Bozzuto v Sarra, 2001 WL 266028, *1 [WD NY 2003]). Thus, it would appear that Claimant may have at least a limited right under the Federal Constitution to appear and be physically present at his disciplinary hearing in order to exercise his due process rights to call witnesses, present evidence, and comment on the charges brought against him (see Cole v New York State Department of Corrections and Community Supervision, supra; Webb v Selsky, 2008 WL 796179, *7 [WD NY 2008]; Johnson v Doling, 2007 WL 3046701, *9 [ND NY 2007]).
In this instance, Claimant was not subjected to wholesale exclusion from his hearing. Rather, Mr. Ramirez was present when the hearing commenced, advised that he could have witnesses on his behalf, and directed to present any oral or documentary evidence that he wished HO Murphy to consider. Mr. Ramirez confirmed that he did not want assistance for the hearing. Initially, he did not have any witnesses and was advised to indicate if that changed as the hearing progressed. The misbehavior report was read into the record, and Claimant pleaded not guilty. Claimant then testified that his authorized medications might have caused the positive test result for drugs in his urine. HO Murphy adjourned the hearing and, when it reconvened, Claimant again was present. The HO called CO Bleau. CO Bleau was not Claimant's witness. Only after HO Murphy had finished questioning CO Bleau, was Mr. Ramirez removed from the hearing for being uncooperative and interrupting. No further witnesses testified. HO Murphy read his written disposition into the record and the hearing ended (see Trace Affirmation in Support, Ex. E; Hull Affirmation in Opposition, Ex. C).
Later, when Claimant again was asked if he wished to request any witnesses, he gave an equivocal answer that "[a]bout the only one I can think of" was a nurse who was familiar with the medications he was taking (see Hull Affirmation, Ex. C, p. 7). The Court notes that Claimant does not assert that a request for a witness was denied, nor does any such notion feature in Acting Justice Hartman's decision to remit the matter for a new hearing. The Court concludes that there was no "outright denial of a witness" in this instance (see Alvarez v Goord, supra at 121).
Accordingly, this Court reaches the same conclusion as the Supreme Court did in its decision on Claimant's CPLR Article 78 proceeding, and finds that, while an inmate has a "fundamental" right to be present at his disciplinary hearing (Matter of Curtis v Annucci, 153 AD3d 1103, 1103 [3d Dept 2017]; Matter of German v Fischer, 108 AD3d 998, 999 [3d Dept 2013]), nevertheless, in this instance Claimant's removal from his disciplinary hearing constituted a regulatory, not a constitutional, violation (see Matter of Texeira v Fischer, 26 NY3d 230 [2015] [recognizing the distinction between regulatory violations and constitutionally protected due process rights]). As noted: (1) Claimant was removed from the hearing as he was attempting to cross-examine CO Bleau. However, an inmate has no "constitutional right to cross-examine a witness at a disciplinary hearing" (Matter of Abdur-Raheem v Mann, 85 NY2d 113, 119 [1995]; see generally Wolff v McDonnell, 418 US 539, 567-568 [1974] [same]); and (2) once Mr. Ramirez was removed from the hearing, no further evidence was admitted into the record. Thus, when read together with Miller v State of New York (supra), Defendant retained its absolute immunity in this matter.
The Court need not reach Defendant's argument that there was no prejudice to Claimant as a result of his removal from the hearing, as that inquiry is relevant only after the State loses its absolute immunity as the result of a due process violation (see Aviles v State of New York, UID No. 2017-018-850 [Ct Cl, Fitzpatrick, J., Nov. 30, 2017] [there is no immunity "where there is a violation of an inmate's due process rights that affects the outcome of the hearing causing actual prejudice or injury"]; Carrasco v State of New York, UID No. 2017-041-069 [Ct Cl, Milano, J., Oct. 13, 2017] [once absolute immunity is lost "liability for money damages may be imposed if it is proven that the regulatory violation caused actual prejudice or injury to the inmate"]).
Thus, the Court concludes that Defendant has made a prima facie showing that it is entitled to absolute immunity under Arteaga. The burden, therefore, shifts to Claimant to submit evidentiary facts or materials sufficient to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., supra at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
In opposition, Claimant asserts that Defendant is not entitled to immunity because CO Bleau did not properly account for and document the whereabouts of the urine sample as required by 7 NYCRR 1040.2, and that Claimant was improperly excluded from his hearing under 7 NYCRR 254.6 (a)(2). But, as stated above, this argument is without merit, as a wrongful confinement cause of action cannot be predicated on a violation of a rule and regulation relating to drug testing procedures, or based on a failure to comply with a rule and regulation concerning a superintendent's hearing, when, as here, Claimant's due process rights were not impinged. Otherwise, Claimant has failed to raise a triable issue of fact sufficient to defeat Defendant's Motion.
Based on the foregoing, Defendant's Motion is granted and the Claim is hereby dismissed. As the claim has been dismissed, Claimant's Motion for summary judgment is denied as moot.
April 25, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's Motion for summary judgment: Papers Numbered Defendant's Notice of Motion to Dismiss an Summary Judgment (Motion No. M-90929), Affirmation in Support of Defendant's Motion, and attached exhibits 1 Claimant's Affirmation in Opposition to Defendant's Motion to Dismiss and/or Summary Judgment 2 Claimant's Notice of Motion for Partial Summary Judgment (Motion No. M-91009), Affirmation of Alissa R. Hull, Esq., and attached exhibits, and Memorandum of Law in Support of Claimant's Motion for Partial Summary Judgment 3 Defendant's Affirmation in Further Support of Defendant's Motion and in Opposition to Claimant's Motion 4 Claimant's Reply Affirmation 5 Filed Papers: Claim, Answer