Opinion
No. 125637.
12-07-2015
Dwayne BETHUNE, Claimant, v. The STATE of New York, Defendant.
Dwayne Bethune, Pro Se, for Claimant. Honorable Eric T. Schneiderman, Attorney General, by Michael T. Krenrich, Esquire, Assistant Attorney General, for Defendant.
Dwayne Bethune, Pro Se, for Claimant.
Honorable Eric T. Schneiderman, Attorney General, by Michael T. Krenrich, Esquire, Assistant Attorney General, for Defendant.
FRANCIS T. COLLINS, J.
Defendant moves for summary judgment dismissing the instant wrongful confinement claim pursuant to CPLR 3212. Claimant, proceeding pro se, opposes the motion and cross-moves for summary judgment in his favor.
Claimant, a former inmate, was found guilty of violating a prison disciplinary rule and a penalty of 60 days confinement to the Special Housing Unit (SHU) was imposed, together with the loss of certain privileges, following a tier III disciplinary hearing. The determination was administratively reversed and the claimant now seeks damages for wrongful confinement to the SHU at Green Correctional Facility from October 6, 2014 through November 25, 2014 and for his continued imprisonment beyond his conditional release date of December 8, 2014 until the date of his actual release on February 5, 2015.
It appears the 60–day penalty was decreased administratively.
According to the misbehavior report and the hearing testimony, claimant was called to the infirmary on August 14, 2014 to provide a urine sample at which time Correction Officer Velez verified his identity and witnessed the urine sample. Correction Officer Cotto tested the sample, which was positive for synthetic cannabinoids (K2), on September 17, 2014. On that same date, claimant was charged with violating a prison disciplinary rule relating to the use of intoxicants (Rule 113.13 alcohol/intoxicant). Claimant pled not guilty to the charge and, as relevant here, requested several witnesses, including Correction Officer Frantz and an individual from Syva, the manufacturer of the drug-testing equipment. The Hearing Officer took the testimony of Correction Officer Frantz by phone; however, when Officer Frantz was unable to state whether or not a dormitory sign-out sheet existed for the date on which the claimant was allegedly summoned to the infirmary, she indicated that she would look for it and call back. When Officer Frantz called back 15 minutes later claimant was no longer present. Nevertheless, Officer Frantz informed the Hearing Officer that there was no sign-out sheet for the date in question and responded to the Hearing Officer's further inquiry regarding why the urine sample had not been tested immediately after it was collected, explaining that the equipment was broken and could not be used until mid-September (defendant's Exhibit E, p. 15). The testimony of Correction Officer Frantz, taken outside the claimant's presence, was not recorded. When the hearing resumed, the Hearing Officer explained to the claimant what had transpired in the phone call with Officer Frantz and claimant indicated he would have liked to have asked Officer Frantz why there was no sign-out sheet for the date he was purportedly summoned to the infirmary for the urine sample (id. at 17). Although claimant initially declined the Hearing Officer's offer to call the witness back, he lamented repeatedly throughout the remainder of the hearing his inability to question Officer Frantz (id. at 17, 26, 27, 28, 33).
The Hearing Officer also granted claimant's request to question an individual from Syva regarding the drug-testing equipment. In doing so, however, the Hearing Officer explained that because employees of Syva were not permitted to be recorded or testify in the presence of inmates, he would take the testimony by phone, which also would not be recorded. The Hearing Officer conducted the interview outside the claimant's presence and relayed the representative's answers to the claimant during the course of the hearing (id. at 19). A Witness Interview Notice (form 2176) was completed by the Hearing Officer, which indicates that the testimony of Officer Frantz and the Syva representative was taken outside the inmate's presence. Although the form reflects the substance of their testimony, it does not reflect why Officer Frantz's testimony was taken outside the inmate's presence and states only “company rule” as the reason for taking the testimony of the Syva representative outside the claimant's presence.
At the conclusion of the hearing, claimant was found guilty of the charge. In reaching this determination, the Hearing Officer relied not only on the testimony of Correction Officers Velez and Cotto, but also on the testimony of both Officer Frantz and the Syva representative which was taken outside the claimant's presence and not recorded (defendant's Exhibit E, p. 37; defendant's Exhibit G). The hearing Officer imposed a penalty of 60 days confinement to the SHU together with the loss of package, commissary and phone privileges. Although the loss of claimant's good behavior allowance was not included among the penalties imposed by the Hearing Officer (defendant's Exhibit G), on November 19, 2014 the Time Allowance Committee recommended that the claimant's good behavior allowance be withheld “[a]s a result of a 9/17/14 tier 3 conviction for alcohol/intoxicant ...” (claimant's Exhibit B). The recommendation was affirmed by the Commissioner's designee on November 20, 2014. Although the claimant's administrative appeal was initially denied, that result was administratively reversed on January 26, 2015, only after the claimant pursued relief in the Supreme Court under CPLR articles 70 and 78. As a result, claimant alleges he was subjected to wrongful excessive confinement to the SHU from October 6, 2014 through November 25, 2014 and that he was wrongfully imprisoned beyond his conditional release date of December 8, 2014 until his release from prison on February 5, 2015 (defendant's Exhibit L).
While defendant contends it is immune from liability for the quasi-judicial determinations of its hearing officers, claimant contends that the State is not immune when it acts in a manner which is inconsistent with its own rules and regulations. Claimant argues that the Hearing Officer violated certain rules when he interviewed Correction Officer Frantz and the representative from Syva outside his presence because there was no determination that taking the testimony of these witnesses in his presence would jeopardize institutional safety or correctional goals and the interviews were not recorded (7 NYCRR 254.5 [b]; 254.6[a][2] ). Claimant also contends that inasmuch as the penalty imposed by the Hearing Officer did not include the loss of his good behavior time allowance, this allowance should not have been withheld (citing 7 NYCRR 263.2 [a][2] ) and he was wrongfully imprisoned beyond his conditional release date of December 8, 2014 until February 5, 2015, the date of his release from prison.
To prevail on a cause of action for wrongful confinement, a species of false imprisonment, it must be established that “(1) that 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 N.Y.2d 451, 456 [1975] ), cert denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929 [1975] ; see also Gittens v. State of New York, 132 Misc.2d 399, 406 [Ct Cl 1986] ). For the reasons set forth below, the alleged violations of the regulations relating to the manner in which the hearing was conducted do not provide a basis for a wrongful confinement claim.
The law is settled that conduct 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 N.Y.2d 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] ; 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 N.Y.2d 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. Where an alleged regulatory violation implicates no constitutionally required due process safeguard, however, the State retains its absolute immunity from liability (see e.g., Lamage v. State of New York, UID No.2015–044–002 [Ct Cl, Schaewe, J., April 17, 2015]; Gifford v. State of New York, UID No.2015–049–024 [Ct Cl, Weinstein, J., March 31, 2015]; Wilson v. State of New York, UID No.2014–015–581 [Ct Cl, Collins, J., May 12, 2014] ). Thus, the viability of the instant claim requires the threshold determination of whether or not the regulations claimant alleges were violated—7 NYCRR §§ 254.5(b) and 254.6(a)(2) —implicate a constitutional due process safeguard upon which liability may be predicated.
In Wolff v. McDonnell (418 U.S. 539 [1974] ) the Supreme Court held that inmates charged with violations of prison disciplinary rules that could result in the loss of “good time” credit are entitled to minimal due process protection under the U.S. Constitution (see also Matter of Laureano v. Kuhlmann, 75 N.Y.2d 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). Inmates do not have the right to counsel or to confront and cross-examine the witnesses against them (id. at 567 ). Following the decision in Wolff, New York adopted regulations implementing these constitutional rights, regulations which provide more protection to inmates than the constitution requires (Matter of Alvarez v. Goord, 30 AD3d 118 [3d Dept 2006] ). As a result, not all violations of the regulations applicable to disciplinary determinations give rise to a wrongful confinement claim.
Claimant alleges that the Hearing Officer violated 7 NYCRR § 254.5(b) and § 254.6(a)(2) by taking the testimony of both Frantz and the Syva representative outside his presence and in failing to record the testimony. Section 254.5(b) states the following:
“Any witness shall be allowed to testify at the hearing in the presence of the inmate unless the hearing officer determines that so doing will jeopardize institutional safety or correctional goals. Where an inmate is not permitted to have a witness present, such witness may be interviewed out of the presence of the inmate and such interview tape recorded. The recording of the witness' statement is to be made available to the inmate at the hearing unless the hearing officer determines that so doing would jeopardize institutional safety or correctional goals.”
Section 254.6(a)(2) requires 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. The entire hearing must be electronically recorded.”
By taking the testimony of Officer Frantz and the Syva representative outside the claimant's presence and failing to record it, the Hearing Officer violated both § 254.5(b) and § 254.6(a)(2). Only where there is a determination that institutional safety or correctional goals will be jeopardized may a witness be allowed to testify outside the presence of the inmate (7 NYCRR 254.5 [b] ). No such determination was made here. Moreover, the interviews were not recorded as required by both § 254.5(b) and 254.6(a)(2). However, the fact that the Hearing Officer heard testimony outside the presence of the claimant implicates the right to confront and cross-examine witnesses which is specifically excluded from the minimal due process protections accorded inmates (see Wolff, 418 U.S. at 567–568 ; Matter of Laureano, 75 N.Y.2d at 146 ; Matter of Hillard v. Coughlin, 187 A.D.2d 136 [3d Dept 1993] ; Matter of Marquez v. Mann, 192 A.D.2d 100 [3d Dept 1993] ). As a result, a violation of this right may not form the basis for a wrongful confinement claim. Nor is the right to an electronically recorded hearing constitutionally required (Wolff, 418 U.S. 539 ; see also Wilson v. State of New York, UID No.2014–015–581 [Ct Cl, Collins, J., May 12, 2014] ). While such regulatory violations may form the basis for aning the disciplinary determination and remanding the matter for a new hearing (see generally Matter of Alvarez v. Goord, 30 AD3d 118 ), they form no basis for a claim of wrongful excessive confinement (cf. Diaz v. State of New York, UID No.2006–036–008 [Ct Cl, Schweitzer, J., June 20, 2006] [recovery for wrongful confinement was permitted where inmate was not afforded his right to call witnesses]; Matter of Texeira v. Fischer, 115 AD3d 1137 [3d Dept 2014] [Hearing Officer made some, albeit insufficient, effort to obtain petitioner's witness and did not deny the witness outright without a stated reason thereby requiring annulment but not expungement, which is reserved for constitutional violations]; Matter of Edwards v. Fischer, 87 AD3d 1328 [4th Dept 2011] [denial of witnesses without stating a good faith basis was a constitutional violation requiring both annulment and expungement from the inmate's prison record] ). As a result, defendant established its entitlement to summary judgment dismissing the claim to the extent it rests on regulatory violations (7 NYCRR §§ 254.5 [b]; 254.6 [a][2] ) that provide more protection than the constitution requires.
The loss of claimant's good behavior time allowance presents a different problem. Conditional release from prison is, with few exceptions, statutorily mandated “when the total good behavior time allowed to him or her, pursuant to the provisions of the correction law, is equal to the unserved portion of his or her term, maximum term or aggregate maximum term” (Penal Law § 70.40[1] [b] ; Correction Law § 803 ). When an inmate has been served with a misbehavior report to be heard in a tier III hearing (Superintendent's Hearing), the award of a good behavior allowance is stayed pending the outcome of the hearing (7 NYCRR 263.2 [a][1] ). As the claimant here points out, the applicable rule provides that “[a]t the conclusion of the hearing, if the disposition does not involve loss of good behavior allowance, the allowance previously granted shall be reinstated” (7 NYCRR 263.2 [a][2] ). Here, the penalties imposed following the claimant's tier III hearing did not include the loss of his good behavior allowance, which should have been reinstated upon the completion of the hearing. Instead, claimant's good behavior allowance was automatically reviewed by the Commissioner, which resulted in a determination to withhold his good behavior allowance. Inasmuch as the withholding of claimant's good behavior time allowance was not authorized by the applicable statutes or regulations, claimant's imprisonment beyond his conditional release date was not privileged. As a result, claimant established his entitlement to partial summary judgment on the issue of liability for wrongful confinement from December 8, 2014, his conditional release date, until February 4, 2015, the last full day of confinement prior to the date of his release from prison.
Based on the foregoing, defendant's motion for summary judgment is granted to the limited extent of dismissing that branch of the claim alleging a period of wrongful excessive confinement prior to December 8, 2014 and otherwise denied. Claimant's cross motion is granted to the extent it alleges wrongful confinement to prison from December 8, 2014 through to and including February 4, 2015 and otherwise denied.
A trial on the issue of damages will be scheduled in the near future and the parties advised accordingly.