Opinion
# 2018-044-554 Claim No. 130509 Motion No. M-92251
08-28-2018
TRACY BOYCE v. THE STATE OF NEW YORK
TRACY BOYCE, pro se HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General
Synopsis
Inmate claimant's motion for summary judgment granted in wrongful confinement case, where claimant was held in keeplock for 30 days without a hearing, violating his due process rights.
Case information
| UID: | 2018-044-554 |
| Claimant(s): | TRACY BOYCE |
| Claimant short name: | BOYCE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130509 |
| Motion number(s): | M-92251 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | TRACY BOYCE, pro se |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 28, 2018 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim to recover damages for his allegedly wrongful confinement in keeplock status as the result of an Inmate Misbehavior Report (the IMR) served on September 12, 2017 while he was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility. Defendant State of New York (defendant) answered and asserted several affirmative defenses. Claimant now moves for summary judgment. Defendant opposes the motion.
Claimant, as the proponent of a summary judgment motion, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853).
It is well-settled that defendant is entitled to absolute immunity from claims for monetary damages relating to disciplinary hearings so long as it complies with the rules and regulations that govern such hearings (Arteaga v State of New York, 72 NY2d 212 [1988]). Notwithstanding the subsequent reversal of the underlying disciplinary charges, whether administratively or via a successful CPLR Article 78 proceeding, the immunity is retained as long as the disciplinary proceedings were conducted consistent with the procedures provided in the relevant DOCCS rules and regulations (id.; see Davis v State of New York, 262 AD2d 887 [3d Dept 1999], lv denied 93 NY2d 819 [1999]). Immunity may be lost if defendant violated its own rules and regulations in conducting the hearing or otherwise acted outside the sphere of privileged actions and deprived the claimant of a due process safeguard (Arteaga, 72 NY2d at 220-221).
"Where an alleged regulatory violation implicates no constitutionally required due process safeguard, however, the State retains its absolute immunity from liability" (Bethune v State of New York, UID No. 2015-015-098 [Ct Cl, Collins, J., Dec. 7, 2015]).
However, the loss of immunity itself "does not result in absolute liability . . . because claimant is still required to prove the merits of his [or her] claim" (Turley v State of New York, UID No. 2010-032-504 [Ct Cl, Hard, J., June 4, 2010]). In other words,
[w]here, as here, a prison inmate contends that he was wrongfully confined as a result of the flawed prison disciplinary proceeding, once the absolute immunity is removed by showing that the governing rules and regulations were not followed, he [or she] may recover damages if he [or she] is able to prove the traditional elements of the tort of [unlawful confinement]: (1) that the confinement was intentional; (2) that [c]laimant was conscious of the confinement; (3) that [c]laimant did not consent to the confinement; and (4) that the confinement was not otherwise privileged (Moustakos v State of New York, 133 AD3d 1268, 1269 [4th Dept 2015] [internal quotation marks omitted]).
In order to establish that the confinement was not privileged, the claimant must show that had the violation not occurred, the outcome of the hearing would have been different (id. at 1270; see also Watson v State of New York, 125 AD3d 1064, 1065 [3d Dept 2015]; Adams v State of New York, UID No. 2017-015-259 [Ct Cl, Collins, J., Sept. 20, 2017]; Lewis v State of New York, UID No. 2007-028-560 [Ct Cl, Sise, P.J., July 16, 2007]).
In his claim, claimant alleges that he was placed in keeplock confinement on September 10, 2017, and on September 12, 2017, he was issued the IMR charging him with failing to obey a direct order, harassment, and yelling after designated quiet time. He asserts that he remained in keeplock for 30 days even though no hearing pursuant to DOCCS rules and regulations was ever held.
Claimant has also submitted an affidavit in support of this motion. Claimant reiterates the allegations in his claim and also states that on September 26, 2017, Lieutenant Henry declared the hearing untimely. Claimant has included a copy of a document entitled "Disciplinary Hearing Disposition Rendered" (the Disposition). The Disposition indicates that an incident took place on September 10, 2017 at approximately 11:20 p.m, and claimant was served with the IMR on September 12, 2017 at 9:19 a.m. The area for the hearing start date and time and the hearing end date and time on the Disposition is blank. Further, there is no information pertaining to the disposition of the hearing and/or any penalty imposed. Moreover, in the penalty portion of the Disposition, there is a handwritten notation stating "[u]ntimely, per Lt Henry." The notation is dated September 26, 2017, but the initials are illegible. Notwithstanding the date, claimant indicates that he was not released from keeplock confinement until October 11, 2017.
Affidavit of Tracy Boyce, sworn to May 4, 2018, in Support of Motion, Attachment at 20.
It is undisputed in this claim that the first three elements of a cause of action for wrongful confinement have been met. The only remaining issue is whether claimant's confinement was privileged. Pursuant to 7 NYCRR 251-1.6 (a),
[w]here an officer has reasonable grounds to believe that an inmate should be confined to his cell or room or housing area because he represents an immediate threat to the safety, security or order of the facility or in immediate danger to other persons or to property, such officer shall take reasonable and appropriate steps to so confine the inmate.
This regulation has been interpreted as "authorizing keeplock whenever an officer reasonably believes that a facility rule has been violated by an inmate, thus establishing an 'immediate threat' to the 'order of the facility' " (Matter of Bowe v Smith, 119 Misc 2d 453, 455 Ct 1983 ); see also Matter of Pettus v West, 28 AD3d 907 [3d Dept 2006]). Claimant was charged with violations of several facility rules, and his initial confinement on September 10, 2017 was authorized.
Nevertheless, 7 NYCRR 251-5.1 (a) provides in pertinent part:
[w]here an inmate is confined pending a disciplinary hearing or superintendent's hearing, the hearing must be commenced as soon as is reasonably practicable following the inmate's initial confinement pending said disciplinary hearing or superintendent's hearing, but, in no event may it be commenced beyond seven days of said confinement without authorization of the commissioner or his designee.
"In calculating [the seven-day period within which to hold a hearing], the day the misbehavior report is written is excluded" (Matter of Agosto v Selsky, 39 AD3d 1106 [3d Dept 2007]). Accordingly, in order to be timely, claimant's disciplinary hearing should have been commenced by September 17, 2017.
However, based upon the documentation submitted, claimant's hearing was never commenced. By failing to provide the hearing required by 7 NYCRR 251-5.1, defendant lost its absolute immunity (Arteaga, 72 NY2d at 221). Claimant suffered an actual injury by being held in the more restrictive keeplock confinement without the benefit of any procedural safeguards, in violation of due process (id.; see also Jackson v State of New York, UID No. 2017-044-516 [Ct Cl, Schaewe, J., Mar. 9, 2017]; Green v State of New York, UID No. 2007-015-241 [Ct Cl, Collins, J., Oct. 31, 2007; Himko v State of New York, UID No. 2007-045-502 [Ct Cl, Lopez-Summa, J., June 27, 2007]). Accordingly, the Court finds that claimant has met his burden of establishing that he was wrongfully confined and suffered actual damages from September 17, 2017 through October 11, 2017 as a matter of law.
The Court acknowledges that the seven-day time requirement set forth in 7 NYCRR 251-5.1 (a) is directory, not mandatory, and that "an inmate must demonstrate prejudice as a result of any delay prior to the commencement of such a hearing" (Davidson v State of New York, 66 AD3d 1089, 1090 [3d Dept 2009]). However, in this instance, defendant failed to hold any hearing, which was prejudicial as a matter of law. --------
The burden now shifts to defendant to submit admissible evidence sufficient to create a material question of fact. Defendant does not dispute that claimant did not receive a hearing as mandated by the rules and regulations and admits that on September 26, 2017, DOCCS determined that any future hearing would be untimely. Assistant Attorney General (AAG) Mark Sweeney represents that based upon this determination, claimant's disciplinary records were expunged. However, defendant argues that because claimant has not provided any documentation as to how many days he spent in keeplock, there is a question of fact to be resolved at trial.
Defendant's contention is not persuasive. As set forth previously herein, the first seven days of claimant's confinement from September 10, 2017 through September 17, 2017 were privileged pursuant to 7 NYCRR 251-5.1 (a). In his affidavit sworn to on May 4, 2018, claimant has stated that he was placed in keeplock on September 10, 2017 and not released until October 11, 2017. Contrary to defendant's argument, this admissible evidence is sufficient to establish that claimant was released from keeplock on October 11, 2017, and that he was wrongfully confined for a period of 24 days (September 17, 2017 through October 11, 2017). Defendant did not submit any admissible evidence - such as a copy of claimant's Internal Movement History Display - to rebut claimant's prima facie evidence and create a question of fact. Accordingly, claimant's motion for summary judgment is granted and claimant is awarded damages of $30.00 per day for 24 days, for a total of $720.00, as reasonable and fair compensation (see Sapp v State of New York, UID No. 2017-038-102 [Ct Cl, DeBow, J., Jan. 13, 2017]). To the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).
Let judgment be entered accordingly.
August 28, 2018
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on claimant's motion: 1) Notice of Motion filed May 10, 2018; Affidavit of Tracy Boyce, sworn to May 4, 2018, and attachment. 2) Affirmation in Opposition of Mark Sweeney, AAG, dated June 22, 2018, and attached exhibits. Filed Papers: Claim filed November 3, 2017; Verified Answer filed December 4, 2017.