Opinion
# 2019-015-121 Claim No. 131969 Motion No. M-93287
02-14-2019
RAYMOND RAMIREZ v. THE STATE OF NEW YORK
Raymond Ramirez, Pro Se Honorable Letitia James, Attorney General By: Anthony Rotondi, Esq., Assistant Attorney General
Synopsis
Claimant, an inmate proceeding pro se, moved for summary judgment on his cause of action for wrongful confinement arising from a prison disciplinary hearing determination. Although claimant established a violation of one of the due process safeguards set forth in the applicable regulations, he failed to establish that the outcome of the hearing would have been different if the due process error had not occurred. As a result, claimant failed to demonstrate that the confinement was not otherwise privileged.
Case information
| UID: | 2019-015-121 |
| Claimant(s): | RAYMOND 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): | 131969 |
| Motion number(s): | M-93287 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Raymond Ramirez, Pro Se |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Anthony Rotondi, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 14, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, moves for an Order pursuant to CPLR 3212 granting him summary judgment on his cause of action for wrongful confinement.
Claimant is an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS). According to the allegations in his verified claim, claimant was charged with a violation of a prison disciplinary rule and a hearing was held in his absence. Claimant was found guilty of the charge and a penalty of 30 days keeplock (from June 22, 2018 to July 22, 2018) together with the loss of privileges was imposed. Claimant administratively appealed the determination, which was reversed on August 21, 2018 (claimant's Exhibit H). Claimant alleges that the Hearing Officer excluded him from the hearing in violation of his fundamental due process right to be present. On this basis, claimant contends that he is entitled to summary judgment.
A party moving for summary judgment "bears the heavy burden of establishing 'a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact' " (Deleon v New York City Sanitation Dept., 25 NY3d 1102, 1106 [2015], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824 [2014]; Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]; see also CPLR 3212 [b]). In this regard, CPLR 3212 [b] specifically requires that a motion for summary judgment be supported "by a copy of the pleadings and by other available proof, such as depositions and written admissions" and that "[t]he motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." Only where the movant has made such a showing does the burden shift to the opposing party "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez, 68 NY2d at 324).
The law is settled that actions of correctional facility employees taken in furtherance of authorized disciplinary measures is quasi-judicial in nature and entitled to absolute immunity ( Arteaga v State of New York, 72 NY2d 212 [1988]; Diaz v State of New York, 155 AD3d 1279 [3d Dept 2017], lv dismissed in part and denied in part 30 NY3d 1101 [2018]; Matter of Kairis v State of New York, 113 AD3d 942 [3d Dept 2014]; Loret v State of New York, 106 AD3d 1159 [3d Dept 2013], lv denied 22 NY3d 852 [2013]; Shannon v State of New York, 111 AD3d 1077 [3d Dept 2013]). The Court of Appeals in Arteaga made clear, however, that the State is not immune from liability for "actions of correction personnel in physically abusing inmates (see, Correction Law § 137 [5]) or in confining them without granting a hearing or other required due process safeguard (see, 7 NYCRR 251-5.1; parts 252-254)" ( Arteaga, 72 NY2d at 221). Consequently, absolute immunity is lost for a violation of a due process safeguard embodied in one of the ministerial rules or regulations governing the conduct of disciplinary hearings.
The Appellate Divisions of the Third and Fourth Departments appear to disagree with respect to whether a violation of a due process safeguard requiring the exercise of discretion may form the basis for a wrongful confinement claim. Whereas the Fourth Department held in Bottom v State of New York (142 AD3d 1314 [4th Dept 2016], appeal dismissed 28 NY3d 1177 [2017]) that a Hearing Officer's erroneous denial of claimant's request for witnesses on the ground the proffered testimony was irrelevant was not subject to absolute immunity, the Third Department held in Diaz (155 AD3d at 1281) that a Hearing Officer's denial of claimant's request to ask a witness certain questions, even if erroneous, was nevertheless within her discretionary authority and did not demonstrate a violation of the applicable regulation.
An inmate's right to be present at a prison disciplinary hearing is one of the fundamental due process rights implemented by the prison regulations in this State (Matter of Laureano v Kuhlman, 75 NY2d 141, 146-147 [1990]; Matter of Micolo v Annucci, 152 AD3d 1103 [3d Dept 2017]; Matter of Rush v Goord, 2 AD3d 1185 [3d Dept 2003]; Matter of Weiss v Coughlin, 199 AD2d 638 [3d Dept 1993]). The applicable regulation, 7 NYCRR 254.6 (a) (2), provides that "[t]he inmate shall be present at the hearing unless he or she refuses to attend, or is excluded for reasons of institutional safety or correctional goals . . .". While an inmate may waive his or her right to appear at a hearing, the waiver must be "knowing, voluntary, and intelligent", a showing that can only be made if the inmate is informed both of the right to appear and the consequences of his or her failure to do so, namely, that the hearing will be held in the inmate's absence (Matter of Micolo v Annucci, 152 AD3d 1103, 1104 [3d Dept 2017]; Matter of Wilson v Annucci, 148 AD3d 1281 [3d Dept 2017]; Matter of Tafari v Selsky, 40 AD3d 1172 [3d Dept 2007]). When an inmate is deprived of his or her right to appear at a hearing, there has been a violation of the inmate's fundamental due process rights as enunciated by the Supreme Court in Wolff v McDonnell (418 US 539 [1974]) and the New York State Court of Appeals in Matter of Laureano v Kuhlman (supra). In a proceeding pursuant to CPLR article 78, such errors require expungement from the inmate's institutional record rather than remand for a new hearing (Matter of Hillard v Coughlin, 187 AD2d 136 [3d Dept 1993], lv denied 82 NY2d 651 [1993]).
Here, claimant's assertion that he did not make a knowing, voluntary and intelligent waiver of his right to appear at the disciplinary hearing is supported not only by his own sworn statements in support of the motion, but the Hearing Officer's disposition sheet in which she states only that "Inmate refused to come to hearing and offer testimony of his innocense [sic]" (claimant's Exhibit F). The Hearing Officer's disposition fails to reflect that claimant was advised of his right to attend the hearing or the consequences of his failure to do so and defendant failed, in opposition to the motion, to raise a question of fact on the issue.
Insofar as an inmate's right to attend a disciplinary hearing is one of the due process safeguards embodied in 7 NYCRR 254.6 (a) (2), defendant's violation of this right is not protected by absolute immunity.
Notwithstanding the loss of immunity for defendant's violation of an applicable due process safeguard, claimant is not relieved from establishing the material elements of a tort claim (see Lauer v City of New York, 95 NY2d 95, 99-101 [2000]; Tango v Tulevech, 61 NY2d 34, 40 [1983]; Moustakos v State of New York, 133 AD3d 1268 [4th Dept 2015]). Rather, the due process violation "merely remove[s] the cloak of absolute immunity and make[s] the State potentially liable, if liability would be imposed under common law tort principles" (Moustakos, at 1269, quoting Kilpatrick v State of New York, Ct Cl, Dec. 2001, Patti, J., claim No. 100462, UID No. 2001-013-031).
To prevail on a common law cause of action for wrongful confinement, a species of false imprisonment, it must be established that "(1) the defendant intended to confine [claimant], (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 U.S. 929 [1975]; see also Moustakos, 133 AD3d at1269; Gittens v State of New York, 132 Misc 2d 399, 406 [Ct Cl 1986]). While there is no dispute as to the first three elements, claimant failed to establish the fourth element, that the 30-day period of confinement was not privileged, as there is no evidence that the outcome of the hearings would have been different had claimant been permitted to attend the hearing (see Moustakas, 133 AD3d at 1270; see also Watson v State of New York, 125 AD3d 1064 [3d Dept 2015]). Accordingly, claimant failed to establish his entitlement to summary judgment.
To the extent claimant argued in support of his motion that the affirmative defenses asserted in defendant's answer are meritless, he misunderstands his burden of proof on a motion for summary judgment. A movant seeking summary judgment is required to establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in favor of that party (see CPLR 3212). He is not required to address the merit or lack thereof of each affirmative defense. Nevertheless, defendant has agreed to withdraw its first affirmative defense alleging that the claim was untimely filed with the Clerk of the Court of Claims.
Accordingly, claimant's motion is denied except to the limited extent of dismissing defendant's first affirmative defense asserted in its answer.
February 14, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of motion dated December 12, 2018;
2. Verified statement in support and memorandum of law sworn to December 12, 2018, with Exhibits A-I;
3. Affirmation in opposition dated January 14, 2019.