Opinion
# 2017-044-017 Claim No. 123812-A
11-27-2017
RICHARD BAUSANO v. THE STATE OF NEW YORK
RICHARD BAUSANO, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General
Synopsis
After trial, defendant found liable for assault and battery, as well as wrongful confinement, where inmate claimant was first placed in administrative confinement after asserting religious exemption, and then given a haircut/shave after threats of physical violence, despite his possession of a previously granted exemption permit.
Case information
| UID: | 2017-044-017 |
| Claimant(s): | RICHARD BAUSANO |
| Claimant short name: | BAUSANO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123812-A |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | RICHARD BAUSANO, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 27, 2017 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim alleging that he was discriminated against on the basis of his religion when he was forced to have his hair cut and his beard and moustache shaved in August 2013 while in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility (Elmira). He further asserts that the correction officers (COs) involved in the shaving incident were also guilty of assault and battery. Defendant State of New York (defendant) answered and asserted several affirmative defenses. Defendant's previous motion to dismiss the claim was granted solely to the extent that any cause of action based upon the denial of claimant's right to freely exercise his religion was dismissed (Bausano v State of New York, UID No. 2017-044-546 [Ct Cl, Schaewe, J., May 25, 2017]). A trial in this matter was conducted by video conference on November 16, 2017, with the parties appearing at Elmira Correctional Facility (Elmira), and the Court sitting in Binghamton, New York.
At trial, claimant testified that he had previously been in prison, was released on parole, and then convicted again on other grounds. He stated that he is Jewish, and accordingly during his first period of incarceration he had obtained a beard permit that allowed him an exemption from DOCCS Directive 4914 (Inmate Grooming Standards) (the Directive) which requires that facial hair be limited to no more than one inch in length and provides directives regarding hair length as well. Claimant stated that after his second conviction, while still residing in a County Jail facility, he requested from Franklin Correctional Facility (Franklin) a copy of the beard permit from his prior term of incarceration, and received it prior to being transferred to Elmira for intake and classification in the State prison system.
Defendant's Exhibit B.
The Directive contains extensive provisions regarding categories of inmates exempted from the requirement, which will be addressed in more detail infra.
Claimant made his request to that facility because that was the last place he had been incarcerated prior to his release on parole for his previous conviction.
Claimant said that when he arrived at Elmira on August 20, 2013, he showed the beard permit from his prior incarceration to the intake sergeant, R. Kelly, and refused to have his beard cut and hair trimmed. Claimant stated that as a result of this refusal he was placed into keeplock for nine days. He said that on August 29, 2013, Kelly advised him that he would be released from keeplock if he had his hair cut, although he would not be required to have his beard shaved. Kelly took him to the barber shop at Elmira, where claimant again produced his prior incarceration beard permit. He said that he was cursed at and threatened with violence if he did not comply, a CO slammed his stick on a desk, and he was subjected to substantial verbal abuse, which included numerous anti-Semitic insults and slurs. He stated that he knew from experience during his prior incarceration that refusing to cooperate with COs could lead to grave consequences, including severe injury. Claimant stated that Kelly threatened him by telling him that if he did not get his hair cut and beard shaved, he would get his head broken. In his claim, claimant further asserted that a correction officer who was also present slammed his stick against the table more than once and stated "what's it going to be . . . I don't have a problem cracking open your skull."
Claim, ¶ 11 (internal quotation marks omitted).
Claimant said that he was extremely fearful and believed that if he did not comply, he would be physically attacked and injured. Accordingly, he did not protest any further, and allowed his hair to be cut and his beard to be shaved. He said that by shaving his beard, which he had been growing for many years, defendant had taken away his sense of identity as a person of Jewish faith.
Claimant further testified that shortly thereafter he was transferred to Livingston Correctional Facility (Livingston). There he filed a grievance regarding the foregoing facts. As part of the grievance, Lieutenant Yunker conducted an investigation and wrote a To/From Memo to Captain DiAngelo in which he indicated that claimant provided Yunker with a legitimate beard exemption. Yunker contacted Kelly, who advised that claimant had no court order or religious exemption, and also indicated that claimant voluntarily cut his hair and beard. Yunker's conclusion was: "there may have been a misunderstanding in whether or not inmate Bausano actually had and/or showed a proper beard exemption form to Elmira Staff on the date in question. The fact is his hair and beard were cut and he may seek to file a claim. Evidence provided supports his allegations." Kelly also wrote a memorandum, in which he indicated that claimant professed religious reasons for refusing to shave his beard, did not profess religious reasons for refusing to cut his hair, did not have a valid court order, and eventually volunteered to cut his hair and shave his beard. Kelly indicated that claimant was not forced to cut his hair or shave his beard. The Inmate Grievance Resolution Committee's response to the grievance was that claimant's beard had been improperly removed, but that the committee could not grant compensation.
A copy of the grievance packet was submitted as Defendant's Exhibit A.
Id. at 3.
id. at 2.
Id. at 10.
On October 18, 2013, after that grievance had been filed, claimant was issued a misbehavior report for forging a document and possessing an altered item, both charges allegedly pertaining to the beard permit from the prior incarceration. A Tier III hearing was conducted, during which testimony was given via telephone from a prison officer at Franklin (the facility which gave claimant a copy of the permit shortly before he was sent to Elmira). The officer from Franklin confirmed that the permit had been validly issued, and claimant was found not guilty of the charges. Claimant was issued a new beard permit in November 2013.
id. at 6.
Inexplicably, the packet provided by defendant as Exhibit A, which purported to contain documents pertinent to the grievance regarding claimant's beard permit and subsequent misbehavior report, did not contain the Hearing Disposition sheet indicating that claimant was found not guilty of the charges based upon the testimony of the official from Franklin. However, that document is attached to claimant's claim, and the Court has reviewed it as part of the record. It is consistent with claimant's uncontroverted testimony and appears to be an official document. Defendant did not contest claimant's testimony in this regard.
On cross-examination, claimant noted that he had not been given a misbehavior report at Elmira for initially refusing to have his hair cut and beard shaved for nine days. However, he stated that when he had been placed in keeplock for that time, he was not allowed recreation or other privileges, essentially being in 24-hour keeplock. Claimant acknowledged that no one hit him or touched him prior to his agreement to allow his hair and beard to be cut, but they scared him and he "did what [he] had to do." Claimant rested at the close of his testimony.
All quotes herein are taken from the Court's notes of the proceedings, unless otherwise indicated.
Defendant called Sergeant J. Martin, a long-time DOCCS employee, to testify. Martin stated that he currently works in the draft area at Elmira, where inmates are brought to be received and go through the initial processing for state prison. He described the normal intake routine, which included a frisk, haircut, shave and shower. He said that if an inmate refused the haircut and shave, they would be given a direct order to comply unless there was a religious basis (or a basis for other exemptions). He indicated that the Directive contains certain exceptions where inmates are not required to comply, which include a court order or a permit issued during the current incarceration. He said that his procedure is that if an inmate had no court order or permit from a previous incarceration, but stated that he had a valid basis for refusing the haircut/shave, the inmate would be given a ticket, put in keeplock, and held while a review was conducted to determine whether the basis actually existed. Martin said that if an inmate showed him that he had a permit from a prior incarceration, that inmate would not be forced to comply with the requirements, no ticket would be given, and the procedure for obtaining a new permit would be followed.
Martin stated that he was not familiar with claimant, and had not worked at Elmira's intake when claimant was brought in. He said he did know Sergeant Kelly, who is retired from DOCCS employment and now lives out of state.
Defendant rested its case at the close of Martin's testimony, and the Court reserved decision.
Pertaining to the haircut requirement, The Directive provides in pertinent part:
5. Exemption to Haircuts: Any reception inmate or returned parole violator who professes to be a[n] . . . Orthodox Jew . . . and refuses to have an initial haircut cannot be forced to comply with the initial haircut requirements. . . .
NOTE: Any inmate or returned parole violator covered by the above exemption shall be classified and transferred in the standard manner and cannot be disciplined or placed in administrative segregation for their refusal on religious grounds to have an initial haircut. . . .
7. An inmate shall not be placed in administrative segregation or disciplinary confinement pending the review of his objection to the initial shave or haircut by the . . . Deputy Superintendent.
Defendant's Exhibit B at 2-3.
The portion of the Directive pertaining to the shaving of beards is essentially the same.
To establish a cause of action for assault, the claimant must prove physical conduct that placed him or her in imminent apprehension of harmful contact (Bastein v Sotto, 299 AD2d 432, 433 [2d Dept 2002]; Charkhy v Altman, 252 AD2d 413, 414 [1st Dept 1998]). In order to recover damages for battery, a claimant must establish that there was bodily contact, which was offensive, that is "wrongful under all the circumstances" (Zgraggen v Wilsey, 200 AD2d 818, 819 [3d Dept 1994]), and that the defendant intended to cause such contact (see Messina v Alan Matarasso, M.D., F.A.C.S., P.C., 284 AD2d 32, 35-36 [1st Dept 2001]). It is not necessary for the defendant to intend to cause injury (Zgraggen, 200 AD2d at 819). While the lack of consent is considered when determining whether the contact was offensive, it is not conclusive (see Goff v Clarke, 302 AD2d 725, 726 [3d Dept 2003]; Zgraggen, 200 AD2d at 819). If consent is obtained by fraud or duress it should not bar recovery. "Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002]; see also Steinborn v Himmel, 9 AD3d 531, 532 [3d Dept 2004]).
There does not appear to be any dispute that the officers' conduct was committed within the scope of their employment. Claimant has established through his credible and uncontroverted testimony that the physical conduct of the CO's placed him in imminent apprehension of harmful contact. Moreover, by forcing claimant to submit to shaving his beard and cutting his hair, defendant's officers engaged in bodily contact that was both intended and offensive, and the "consent" by claimant was clearly obtained under duress and physical threats (cf. Simmons v State of New York, UID No. 2012-030-018 [Ct Cl, Scuccimarra, J., June 7, 2012] [claimant failed to make a prima facie case for battery when his hair was cut and beard shaved despite his possession of a valid court order, because claimant consented to the procedures after being advised he would be placed in segregated housing, but that housing would not have been disciplinary or result in reduced privileges]). The Court finds defendant 100% liable for assault and battery.
In addition, claimant has set forth a prima facie cause of action for wrongful confinement, although it may have been inartfully pleaded. "It is well settled that a variance between the pleadings and the proof may be disregarded unless it can be said to have misled an adversary and occasioned prejudice" (Hummel v Vicaretti, 152 AD2d 779, 780 [3d Dept 1989] [internal quotation marks omitted], lv dismissed 75 NY2d 809 [1990]). Conforming the pleadings to the proof "may be granted in the absence of a motion by a party . . . sua sponte, if justice so requires" (id.). In his claim, claimant averred: "[o]n August 20th., 2013 after refusing to get my hair cut, I was ordered to be "locked down" by the reception center's area sergeant and did not leave my cell for nine (9) days." Defendant was thus clearly placed on notice that claimant was asserting that he was wrongfully confined, and has not been prejudiced regarding a cause of action for wrongful confinement. Accordingly, to the extent that the claim may be deemed insufficient to plead a cause of action for wrongful confinement, it is deemed amended to conform it to the proof presented at trial.
Claim, ¶ 8. --------
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]). There is no dispute that defendant both intended to and did confine claimant without his consent. Moreover, the Directive clearly states that an inmate may not be placed in administrative segregation for a refusal to shave his beard or cut his hair on religious grounds, and also provides that the inmate may not be placed in administrative segregation while awaiting review of his objection. Accordingly, the confinement of claimant to 24-hour keeplock for nine days was not privileged, and defendant is found 100% liable for said wrongful confinement.
Damages for the assault and battery involved in shaving claimant's beard and cutting his hair are difficult to quantify. Claimant clearly was not physically injured. However, claimant testified that his identity as a man of Jewish faith was challenged. After consideration, the Court awards claimant total damages in the amount of $1,000 for the assault and battery.
Claimant is further awarded $30.00 per day for 9 days of wrongful confinement, or $270.00 (see Makas v State of New York, UID No. 2011-048-502 [Ct Cl, Bruening, J., Sept. 30, 2011]), for a total of $1,270.00, as reasonable and fair compensation. 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.
November 27, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims