Opinion
# 2020-015-040 Claim No. 128944
04-30-2020
TERRANCE ANDERSON v. THE STATE OF NEW YORK
Terrance Anderson, Pro Se Honorable Letitia James, Attorney General By: Christina Calabrese, Esq., Assistant Attorney General
Synopsis
Pro se inmate's wrongful confinement claim, which arose from a prison disciplinary determination, was dismissed following trial. Although defendant was not immune from liability for its due process violations in failing to call the witnesses claimant requested, claimant failed to establish that the confinement was not privileged.
Case information
| UID: | 2020-015-040 |
| Claimant(s): | TERRANCE ANDERSON |
| Claimant short name: | ANDERSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128944 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Terrance Anderson, Pro Se |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Christina Calabrese, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 30, 2020 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claim alleges the claimant was wrongfully confined for a total of 156 days from August 8, 2015 through January 14, 2016. Trial of this matter was held by remote video conference on January 13, 2020.
Claimant testified that on August 8, 2015 he was attending a family festival at Great Meadow Correctional Facility (Great Meadow) with his wife. During the festival his wife entered a restroom which was reserved for inmates only, but which had been used by both civilians and inmates during the festival. Claimant testified that he was then informed by another inmate that his wife was using the wrong bathroom, and so the claimant stood in front of the bathroom door and prevented any civilians or visitors from entering. Claimant was approached by a correction officer who asked why he was standing in front of the bathroom door. He explained that his wife had mistakenly entered the bathroom and the correction officer responded that when the claimant's wife exited the bathroom he would post a sign restricting access. Claimant was then approached by Correction Officer Smith who asked him the same question, to which he provided the same response he had previously offered the first correction officer. Correction Officer Smith indicated his intention to enter the restroom in order to inspect the area and claimant informed the officer that he would not permit him to enter while his wife remained in the restroom. Correction Officer Smith left the area and returned with several other correction officers, the claimant was placed in handcuffs and taken to the Special House Unit (SHU) where he was searched and placed on drug watch. Claimant was later returned to SHU where he was issued a misbehavior report dated August 8, 2015 charging him with engaging in a sexual act and violating facility visitation procedures (Exhibit A, page 7).
A disciplinary hearing was begun on August 17, 2015, during which two inmate witnesses and two civilian witnesses testified. The hearing was then adjourned and re-commenced on September 11, 2015. Claimant testified that he was informed by the hearing officer that the hearing was to be a "new hearing" and that evidence received at the hearing conducted on August 17, 2015 was "not admissible" and would not be considered. Upon learning that the hearing was to be a new hearing, claimant requested additional employee assistance and the testimony of those witnesses who had appeared in the prior hearing. According to the claimant, the hearing officer then indicated that the hearing was not to be a new hearing but a continuation of the hearing which began on August 17, 2015. Claimant responded by reiterating his request for the testimony of all the witnesses he had previously requested but had been denied. Claimant testified that his renewed request for witnesses was denied without explanation at the hearing and no 2176 (Witness Interview Notice) forms were completed for any of the witnesses he had requested but been denied. In addition, claimant contended that at various points during the hearing, the hearing officer either discontinued recording the proceedings or recorded over previous testimony. Claimant was found guilty of both charges brought against him on September 16, 2015. Claimant was assigned 180 days in SHU and the loss of packages, commissary and phone during the same period.
Quotes are taken from the audio transcript of the trial unless otherwise noted.
Upon appeal the hearing determination was modified on November 18, 2015 to reduce the period of SHU and loss of privileges to 120 days, with 60 days suspended. Thereafter claimant filed an Article 78 proceeding on January 8, 2016 challenging the hearing disposition in Albany County Supreme Court. On May 9, 2016 claimant's superintendent's hearing was reversed and all references thereto were directed to be expunged.
The defendant called Charles White, the hearing officer who presided over the claimant's superintendent hearing held on September 11, 2015. Mr. White testified that two inmate witnesses testified at the superintendent's hearing as well as the correction officer who issued the misbehavior report. He also attempted to contact the claimant's wife to secure her testimony but was unsuccessful. Two inmate witnesses requested by the claimant (Hemphill and Quinones) were denied on the basis their testimony would be redundant (Exhibit A, page 12).
On cross-examination Mr. White acknowledged that Exhibit 3 is a list of witnesses prepared by claimant's employee assistant in which he requests that six inmate witnesses and five correctional facility personnel testify at the hearing. Of those individuals listed on Exhibit 3, only three witnesses actually testified at the hearing, inmates Williams and Pompey and Correction Officer Smith. The witness testified that inmates Garrett and Portes, listed on Exhibit 3 as requested witnesses, refused to testify and the testimony of inmates Hemphill and Quinones were deemed redundant. He testified that notwithstanding the witness request received as Exhibit 3, at the hearing claimant requested only the testimony of those individuals who actually testified. The witness agreed that Department Directive 4932 (Procedures for Implementing Standards of Inmate Behavior) and applicable regulations provide that an inmate may request a witness by either informing his or her employee assistant or the hearing officer before the hearing or, alternatively, informing the hearing officer during the hearing (7 NYCRR 254.5 [c]). The directive and regulations further provide that should a requested witness be denied the hearing officer shall give the inmate a written statement setting forth the reasons for the denial (7 NYCRR 254.5 [a]). He also confirmed that the provisions requiring a written statement of the reasons for denial of a requested witness applies equally to both inmate and facility employee witnesses. As indicated on Exhibits 3 and 4, two inmate witnesses testified at the hearing and two other inmate witnesses were denied as redundant. Two additional inmate witnesses (Garrett and Portes) were requested but did not testify at the trial. In addition, of the five civilian employee witnesses requested, only Correction Officer Smith testified at the hearing. When asked why 2176 forms were not completed for any of the potential witnesses other than inmates Hemphill and Quinones, Mr. White responded "because they weren't requested at the hearing". Finally, the witness testified that he was assigned to conduct a new hearing and not to continue or recommence a prior hearing, and he was unaware that a prior hearing regarding claimant's misbehavior report had been held.
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]; 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 Arteaga Court 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, "actions of correctional facility employees with respect to inmate discipline matters are quasi-judicial in nature and, unless the employees exceed the scope of their authority or violate the governing statutes and regulations, defendant has absolute immunity for those actions" (Ramirez v State of New York, 175 AD3d 1635, 1636-1637 [3d Dept 2019], quoting Miller v State of New York, 156 AD3d 1067, 1067 [2017] [internal quotation marks and citation omitted]; see also Loret v State of New York, 106 AD3d 1159; Holloway v State of New York, 285 AD2d 765, 765 [3d Dept 2001]). Where an alleged regulatory violation implicates no constitutionally required due process safeguard, however, the State retains absolute immunity from liability (see e.g. Ramirez v State of New York, 175 AD3d at 1637; Diaz v State of New York, 155 AD3d 1279, 1281-1282 [3d Dept 2017]; Bethune v State of New York, 50 Misc 3d 1216 [A] [Ct Cl, Collins, J. 2015]; Lamage v State of New York, Ct Cl, April 17, 2015, Schaewe, J., claim No. 116243, UID No.2015-044-002; Gifford v State of New York, Ct Cl, March 31, 2015, Weinstein, J., claim No. 124443, UID No. 2015-049-024; Wilson v State of New York, Ct Cl, May 12, 2014, Collins, J., claim No. 118226, UID No. 2014-015-581). Thus, a determination as to whether the State retains its immunity for violations of prison regulations requires examination of the particular regulation allegedly violated. Claimant asserts, inter alia, a violation of 7 NYCRR § 254.5 (a), which states the following:
"The inmate may call witnesses on his behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial, including the specific threat to institutional safety or correctional goals presented."
In Wolff v McDonnell (418 U.S. 539 [1974]) the Supreme Court held that inmates charged with violations of prison disciplinary rules which could result in the loss of "good time" credit are entitled to minimal due process protection under the U.S. Constitution (see also
The Matter of Cortorreal v Annucci, 28 NY3d 54 [2016]; Matter of Laureano v Kuhlmann, 75 NY2d 141 [1990]). Such protections include a hearing with advance written notice of the charges, the right to call witnesses and present documentary evidence when permitting the inmate to do so will not jeopardize institutional safety or correctional goals, and the right to a written statement of the evidence relied on and the reasons for the disciplinary action taken (Wolff, 418 U.S. 563-570). Following the decision in Wolff, New York adopted regulations which implemented similar protections, including the conditional right to call witnesses (7 NYCRR § 254.5) which "provides more protection to inmates than the constitution requires" (Matter of Alvarez v Goord, 30 AD3d 118, 119 [3d Dept 2006]). For instance, under New York Law, if permission to call a witness is denied the hearing officer must give the inmate a written statement of the reasons for the denial, which is not a constitutionally required due process safeguard under Wolff (see 7 NYCRR 254.5 [a]; Texeira v Fischer, 26 NY3d 230 [2015]; Matter of Getfield v Annucci, 173 AD3d 1318 [3d Dept 2019]; Matter of Alvarez v Goord, 30 AD3d 118 [3d Dept 2006]). Moreover, a correction officer's hearsay report that a witness refused to testify, unaccompanied by any reason from the witness for such refusal, constitutes no more than a regulatory violation (Matter of Barnes v LeFevre, 69 NY2d 649 [1986]; Matter of Alvarez v Goord, 30 AD3d 118). Alternatively, a hearing officer's outright denial of a requested witness without a stated good faith basis or any effort to obtain the requested witness' testimony constitutes a clear constitutional violation (Matter of Getfield v Annucci, 173 AD3d 1318).
Here, claimant alleges the Hearing Officer's failure to address his request to interview and call multiple witnesses to testify on his behalf constitutes not only a regulatory violation of 7 NYCRR 254.5 but a constitutional violation undeserving of immunity. Claimant requested 16 witnesses both prior to the start of the hearing (Exhibit 6) and during the course thereof (Exhibit 14). His request for two inmate witnesses was denied on the purported ground of their refusal to testify, and two other inmate witnesses were denied on the ground of redundancy. Of the remaining witnesses claimant requested, only the claimant, inmates Williams and Pompey, and Correction Officer Smith, the author of the Misbehavior Report, were permitted to testify. The record fails to reflect any explanation for the Hearing Officer's failure to permit the claimant's remaining witnesses to testify or any inquiry into the reason for the requested inmates' refusal. Such omissions are tantamount to an outright denial of requested witnesses without explanation (see Matter of Doleman v Prack, 145 AD3d 1289 [3d Dept 2016]; Matter of Getfield v Annucci, supra; Matter of Kalwasinski v Venettozzi, 151 AD3d 1417 [3d Dept 2017]). Defendant is not immune from liability under the circumstances presented.
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 US 929 [1975]; see also Moustakos, 133 AD3d at 1269 ; 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 of his cause of action, that the confinement was not privileged, because there is no evidence that the outcome of the hearing would have been different had claimant been permitted to call the witnesses he requested (see Moustakos, 133 AD3d at 1270; Bottom v State of New York, 142 AD3d 1314 [4th Dept 2016], appeal dismissed 28 NY3d 1177 [2017]; see also Watson v State of New York, 125 AD3d 1064 [3d Dept 2015]). Accordingly, claimant failed to establish the material elements of a wrongful confinement claim.
Accordingly, the claim is dismissed. Let judgment be entered accordingly.
April 30, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims