Opinion
# 2017-053-573 Claim No. 128113 Motion No. M-90744 Motion No. M-90774
11-30-2017
ERICK M. CAMPBELL v. STATE OF NEW YORK
ERICK M. CAMPBELL, Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Aaron M. Griffin, Esq. Assistant Attorney General, Volunteer
Synopsis
The State's motion to dismiss and for summary judgment regarding claimant's wrongful confinement claim is granted and claimant's cross-motion for summary judgment is denied. Claimant failed to establish elements of his claim and the mere fact that the findings of the tier III hearing were reversed and an expungement order issued does not give rise to a recovery for wrongful confinement. The hearing was reversed for reasons giving rise to questions regarding claimant's culpability and not that any State employee acted in excess of their authority or departed from any statutory or regulatory direction.
Case information
| UID: | 2017-053-573 |
| Claimant(s): | ERICK M. CAMPBELL |
| Claimant short name: | CAMPBELL |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128113 |
| Motion number(s): | M-90744, M-90774 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | ERICK M. CAMPBELL, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Aaron M. Griffin, Esq. Assistant Attorney General, Volunteer |
| Third-party defendant's attorney: | |
| Signature date: | November 30, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Erick M. Campbell, an inmate proceeding pro se, alleges in claim no. 128113 that he was wrongfully confined in the Special Housing Unit and Keeplock Unit. Defendant moves to dismiss the claim and for summary judgment (defendant's motion no. M-90744). Claimant opposes defendant's motion and moves for summary judgment (claimant's motion no. M-90774).
According to the claim (defendant's exhibit A), claimant was served on February 26, 2016 with a tier III misbehavior report (defendant's exhibit C) for violations of drug use (rule 113.24) and drug possession (rule 113.25). At the conclusion of the tier III hearing held on March 3, 2016, claimant was found guilty of both charges and sentenced to 120 days keeplock confinement and loss of other privileges (defendant's exhibit D). After an administrative review, the decision following the hearing was reversed because "circumstances surrounding the incident [raised] questions to the inmate's culpability" and an expunction order was issued (defendant's exhibit E).
In order to establish a claim of wrongful confinement, the claimant must prove 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]). At issue here is whether claimant's confinement was privileged.
The actions of employees of the Department of Corrections and Community Supervision (DOCCS) in commencing and conducting inmate disciplinary hearings are "quasi-judicial in nature for which the State has absolute immunity" (Arteaga v State of New York, 72 NY2d 212, 214 [1988]). It is only when a DOCCS employee acts outside the scope of his authority or violates the governing statutes or regulations does the State lose its defense of absolute immunity (Id. at 220-221). In the prison context, placement of an inmate in a more restrictive confinement is privileged if imposed in accordance with DOCCS' regulations (Lee v State of New York, 124 AD2d 305 [3d Dept 1986]). Here, defendant alleges in the fourth affirmative defense of its answer (defendant's exhibit B) that its actions constituted "discretionary conduct of a quasi-judicial nature for which the State has absolute immunity."
Summary judgment is a drastic remedy which should only be granted when the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). The proponent of such a motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). In deciding a summary judgment motion, the Court must view the evidence in a light most favorable to the non-moving party (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958 [3d Dept 2011]).
Claimant alleges in the claim that the defendant violated his due process rights during the tier III hearing by failing to record the entire proceedings, by failing to allow him to have an employee assistant and by failing to allow him to call witnesses. Each of these alleged violations will be discussed separately.
Pursuant to 7 NYCRR 253.6 (b), the entire disciplinary hearing is to be recorded. It has been held, however, that there is no "statutory or regulatory prohibition against stopping a tape recording during the course of a hearing in order to have an off-the-record conversation with an inmate" (Diaz v State of New York, UID No. 2015-015-099 [Ct Cl, Collins, J., Dec. 4, 2015]; affd 2017 N. Y. App. Div. [3d Dept] LEXIS 8115 [Nov. 16, 2017]). The failure to electronically record the entire hearing violates no due process safeguard. Accordingly, absolute immunity is not lost for the State's discretionary decision to stop the tape (Wilson v State of New York, UID No. 2014-015-581 [Ct Cl, Collins, J., May 12, 2014]). Here, the electronic recording of the disciplinary hearing (defendant's Exhibit F) was only stopped once at the conclusion of the testimony when the hearing officer announced that the tape would stop while she wrote down the disposition and that the tape would then continue while she read her determination into the record. At this point, the tape stopped and then continued with the hearing officer reading the disposition and explaining to claimant the procedures for an appeal. The defendant retains absolute immunity for the brief stoppage of the tape while the hearing officer prepared the disposition of the hearing.
In the memorandum stating the reversal of the disposition following the tier III hearing (defendant's exhibit E), it was specifically noted that the electronic tape of the hearing was to be retained on file and marked as expunged. A copy of this tape was provided to the Court and to claimant for review (defendant's Exhibit F). However, because this tape was marked expunged, defendant's Exhibit F will be retained under seal.
Pursuant to 7 NYCRR 251-4.1, an inmate is to be given the opportunity for the assignment of an employee assistant. The assistant selection form (part of defendant's exhibit D) indicates that claimant waived his right to select an assistant and refused to sign the form. At the beginning of the tier III hearing, claimant was instructed by the hearing officer to raise any procedural objections immediately so that they could be addressed. At the conclusion of the tier III hearing, claimant was asked if he had any procedural objections to the way the hearing was conducted. His answer was that he did not. Based on these facts, the Court concludes that regulation 7 NYCRR 251-4.1 was not violated.
Pursuant to 7 NYCRR 254.5 (a), an inmate may call witnesses on his behalf provided their testimony is material, not redundant and does not jeopardize institutional safety or correctional goals. Here, the hearing officer explained to claimant at the beginning of the hearing that he was entitled to call witnesses. At no time during the hearing did claimant request any specific witness and stated that he had no procedural objections to the way the hearing was conducted. As a result, the Court concludes that 7 NYCRR 254.5 (a) was not violated.
Even if claimant had established a violation of a due process safeguard regulation during the course of the tier III hearing, such a violation would only remove the discretionary immunity that attaches to these quasi-judicial hearings under Arteaga v State of New York, supra at 220-221. The absence of an immunity defense does not entitle claimant to summary judgment. Claimant would still need to prove the merits of his claim for wrongful confinement and that the outcome of the hearing would have been different had a violation of a due process safeguard not occurred (Moustakos v State of New York, 133 AD3d 1268 [4th Dept 2015]).
In his affidavit in opposition to defendant's motion, claimant indicates that the outcome of the tier III hearing would have been different if the hearing officer had taken testimony from OMH (Office of Mental Health), had allowed Lieutenant Conrad to testify, and had provided claimant with an employee assistant. Contrary to these assertions, the outcome of the hearing would have been no different if claimant had asked for witnesses and they had testified and/or if claimant had asked for an assistant. Here, the misbehavior report (defendant's exhibit C) was based on alleged violations of rule 113.24 (drug use) and 113.25 (drug possession). Throughout the hearing, claimant stated that he had a drug problem and needed drug counseling and he specifically pled guilty to drug use and to drug possession. Claimant failed to make a prima facie showing of wrongful confinement as he failed to show that the testimony of any witness or the aid of an assistant would have changed the outcome of the hearing (Bottom v State of New York, 142 AD3d 1314 [4th Dept 2016]; Moustakos v State of New York, supra at 1270).
Finally, the mere fact that the findings of the hearing were subsequently reversed and an expungement order issued does not give rise to a per se entitlement to recovery for wrongful confinement (Shannon v State of New York, 111AD3d 1077 [3d Dept 2013]). This is especially true where, as here, the hearing was reversed due to circumstances surrounding the incident which gave rise to questions regarding the claimant's culpability (defendant's exhibit E) and not upon any finding that the facility employees acted in excess of their authority or departed from any statutory or regulatory direction (Id. at 1077-1078).
There is some support for an argument that an expungement order shifts to the defendant the burden of showing that the testimony of witnesses and/or the aid of an assistant would not have changed the outcome of the hearing (DuBois v State of New York, 25 Misc. 3d 1137 [Ct Cl 2009]). The Court rejects such an argument here as a tape of the hearing has been provided. Moreover, had the burden of proof shifted, defendant would have met that burden as claimant pled guilty to drug use and to drug possession during the hearing.
Based on the foregoing, claimant's motion is insufficient to establish a prima facie entitlement to summary judgment. Defendant, however, has established its entitlement to summary judgment. The circumstances of this tier III hearing fall within the purview of Arteaga v State of New York. Accordingly, claimant's motion no. M-90774 is denied and defendant's motion no. M-90744 is granted and claim no. 128113 is dismissed.
November 30, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered: 1. Notice of defendant's motion no. M-90744 and affirmation of Assistant Attorney General, Volunteer Aaron M. Griffin dated July 6, 2017, with annexed exhibits A-F; 2. Defendant's memorandum of law dated July 6, 2017; 3. Notice of claimant's motion no. M-90774 and affidavit of Erick Campbell sworn to July 9, 2017; and 4. Affirmation of Assistant Attorney General, Volunteer Aaron M. Griffin dated July 20, 2017.
Defendant's Exhibit F which is a copy of the tape of the tier III hearing is to be kept under seal. See footnote no. 1. --------