Opinion
# 2016-016-014 Claim No. 124391 Motion No. M-87745 Cross-Motion No. CM-87904
02-22-2016
DAMON GREEN v. THE STATE OF NEW YORK
Damon Green, Pro se Eric T. Schneiderman, Attorney General By: Michael D. Brown, AAG
Synopsis
Case information
| UID: | 2016-016-014 |
| Claimant(s): | DAMON GREEN |
| Claimant short name: | GREEN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124391 |
| Motion number(s): | M-87745 |
| Cross-motion number(s): | CM-87904 |
| Judge: | Alan C. Marin |
| Claimant's attorney: | Damon Green, Pro se |
| Defendant's attorney: | Eric T. Schneiderman, Attorney General By: Michael D. Brown, AAG |
| Third-party defendant's attorney: | |
| Signature date: | February 22, 2016 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Damon Green moves here for summary judgment on his claim arising from confinement to the special housing unit ("SHU") in facilities of the Department of Correctional Services and Community Supervision ("DOCCS"). The defendant State of New York opposes the motion and, for its part, moves to dismiss the underlying claim.
On November 26, 2012, Mr. Green was issued an Inmate Misbehavior Report because two days before, during a search of his cell, the officer "observed a silver in color watch in the cell toilet. I retrieved the watch and discovered it was a cell phone." After the officer secured the cell and took Green to SHU, he returned to the cell to continued his search and found additional contraband - - a phone charger (and records of phone calls and text messages).
The Inmate Misbehavior Report is exhibit A and the officer's statement of what he observed is exhibit I, both from the defendant's Affirmation.
A Tier III disciplinary hearing was begun on November 29 on the following charges: 113.22 (property in unauthorized areas); 113.23 (contraband) and 114.10 (smuggling). On December 3, 2012, claimant was found guilty on all three and penalized with 36 months in SHU and a loss of package, commissary and phone privileges for 48 months, as well as the loss of good time for 36 months. The decision, two pages long, listed the evidence and the reasons for the penalty (exhibit B to defendant's Affirmation).
The three provisions are part of the Institutional Rules of Conduct, which is subdivision B to 7 NYCRR § 270.2.
The matter was reviewed in Albany by the DOCCS' Director of Inmate Discipline, who on January 29, 2013 reduced each of the penalties to 24 months in duration and suspended their commencement until July 28, 2013 (but the loss of good time would still begin immediately). The decision stated: "The nature of the offense, however serious, does not warrant the penalty imposed" (id., exh C).
Mr. Green then brought an article 78 proceeding in Albany Supreme Court before Justice James P. Gilpatric, whose decision of October 2, 2013 annulled the disciplinary determination and ordered that all references to the determination and underlying disciplinary matter be expunged from Green's institutional record, and that credit for good time be restored (id., exh D).
Justice Gilpatric based his decision on the fact that inmate Green was not present for the second search of his cell that uncovered the phone charger, "which contributed to the finding of guilt . . . and the issuance of associated penalties . . ." According to the judge, not allowing Green to be present was a violation of DOCCS Directive 4910 (§ V [C] [1]), citing several cases with comparable facts: Matter of Morales v Fischer, 89 AD3d 1346 (3d Dept 2011); Matter of Johnson v Goord, 288 AD2d 525 (3d Dept 2001); and Matter of Holloway v Lacy, 263 AD2d 740 (3d Dept 1999)
During his SHU confinement, Green was transferred to Southport C.F. in Chemung County, and then to Shawangunk C.F. in Ulster County, where he was placed in the Close Supervision Unit ("CSU"). Appended to defendant's papers is the affidavit of Michael Bertone, a corrections captain at Shawangunk, who stated that "Inmate Green's possession of contraband was one of the factors considered in placing him in the CSU after his release from the Special Housing Unit in 2013"(id., paragraph 5 of exhibit L).
Captain Bertone went on to explain in his affidavit that placement in CSU was a non-disciplinary administrative process that allowed additional monitoring of an inmate which did not affect his access to "programs, recreation, phones, visits, packages, commissary and other privileges" (id., paragraph 7).
In a second proceeding before him, Justice Gilpatric made reference to - - and discounted - - a similar affidavit of Captain Bertone's, which had also stated that Green's possession of contraband was one of the factors considered in his placement in the Close Supervision Unit. On October 31, 2014, Gilpatric signed an order directing that "all references to the determination and underlying disciplinary matter are to be expunged from petitioner's institutional record . . . and the respondent must release the petitioner from CSU as he is currently being held as a result of the contraband found that formed the basis for the December 3, 2012 Tier III hearing" (exhibit A to claimant's Affidavit In Support of Motion for Summary Judgment). * * *
The reversal of a disciplinary hearing finding and its expungement from an inmate's record does not, by itself, mean that the State can be sued for money damages for the period of confinement that was the result of the hearing. (Arteaga v State of New York, 72 NY2d 212 [1988] ). The Arteaga case combined the lawsuits of two inmates, both of whom were disciplined by being placed in the special housing unit and then had their disciplines reversed. The Court of Appeals ruled that the courts below properly dismissed their claims for money damages that had been brought in the Court of Claims.
In that vein, following the above-referenced decision in Matter of Holloway v Lacy, which also involved the lack of inmate presence during the search of his cell, Ronald Holloway brought suit for damages. His case was dismissed because the search fell within the "formidable tasks" of maintaining order and security in a correctional facility, which requires making on-the-spot discretionary decisions (Holloway v State of New York, 285 AD2d 765, 766 (3d Dept 2001).
The class of rules and regulations that if violated can support a lawsuit for money damages are those that affect due process, as in the conduct of the Tier III hearing (Bethune v State of New York, 50 Misc 3d 1216[A][2015]). Such was not the case with Mr. Green's hearing and thus a damages' claim will not lie for his confinement to SHU with its attendant loss of privileges.
But Justice Gilpatric has ruled that expungement from the record means just that, and the affidavits from Captain Bertone indicated that the finding of contraband per the December 3, 2012 hearing was considered in assigning Mr. Green to the Close Supervision Unit at Shawangunk.
As noted above, the captain stated that placement in CSU was a non-disciplinary administrative process that allowed additional monitoring of an inmate and did not affect privileges. Mr. Green states in his papers, "Even after my release from solitary confinement the status quo has not been restored. For example, I have not been allowed to resume taking college courses to complete the degree." This is a little vague without explicit reference to CSU and no mention of any other privileges he may have lost. For that matter, other than Captain Bertone's general reference to "programs," the State does not supply much of an explanation either.
In sum, there are facts to be determined on the effects of the failure to expunge the contraband search from Green's inmate record and his assignment to CSU. See Bethune, supra. * * *
In view of the foregoing, and having considered the parties' submissions, IT IS ORDERED that motion No. M-87745 is denied in its entirety, and cross motion CM-87904 is granted to the extent of dismissing the claim insofar as it alleges wrongful confinement in a special housing unit.
The following were reviewed: from claimant - - an Affidavit in Support of Motion for Summary Judgment (with exhibit A), Formal Reply to Defendant's Affirmation in Opposition to Claimant's Motion for Summary Judgment and In Support of Defendants Cross-Motion for Summary Judgment; from defendant - - a Notice of Cross-Motion and an Affirmation in Opposition to Claimant's Motion for Summary Judgment and In Support of Defendants Cross-Motion for Summary Judgment (with exhibits A through L; exhibit K was submitted in camera - - it is an 8-page document that is from the Facility Operations Manuel and restricted from inmate access). --------
February 22, 2016
New York, New York
Alan C. Marin
Judge of the Court of Claims