Opinion
# 2011-048-507 Claim No. 111628
12-29-2011
HAMID v. THE STATE OF NEW YORK
Synopsis
After trial, the Court dismissed Claimant's bailment claims and claims of malicious prosecution, false arrest, wrongful confinement, failure to investigate false charges, failure to properly train and supervise staff, physical, psychological, sexual and verbal abuse, race and religious discrimination, and cruel and unusual punishment under the State and Federal Constitutions. Case information
UID: 2011-048-507 Claimant(s): SALEEM A. HAMID Claimant short name: HAMID Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant The caption has been amended to reflect the State of New name) : York as the only properly named defendant. Third-party claimant (s): Third-party defendant(s): Claim number(s): 111628 Motion number(s): Cross-motion number (s): Judge: GLEN T. BRUENING Claimant's attorney: SALEEM HAMID, Pro Se HON. ERIC T. SCHNEIDERMAN Defendant's Attorney General of the State of New York attorney: By: Jessica Hall, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: December 29, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The Claim of Saleem A. Hamid, filed November 14, 2005, contains allegations under two major headings, "Malicious Prosecution" and "Loss of Property." The allegations under Malicious Prosecution (also referred to as Part One of the Claim herein), construed liberally, include malicious prosecution, false arrest, wrongful confinement, failure to investigate false charges, failure to properly train and supervise staff, physical, psychological, sexual and verbal abuse, race and religious discrimination, and cruel and unusual punishment under the State and Federal Constitutions, resulting from an incident with a correction officer on April 1, 2004 while he was incarcerated at Eastern Correctional Facility under the supervision of the Department of Correctional Services ("DOCS").The allegations under Loss of Property (also referred to as Part Two of the Claim herein) are that DOCS wrongfully lost or destroyed Claimant's personal property while he left Eastern Correctional Facility to stand trial in Ulster County for charges of assaulting a correction officer during the April 1, 2004 incident. Defendant asserted a number of affirmative defenses, including that its actions were at all times justified, privileged or otherwise immune from liability. A trial was conducted on the Claim via video conference from Eastern Correctional Facility on September 27, 2011. Claimant was the only witness to testify.
DOCS is now known as the Department of Corrections and Community Supervision (DOCCS). Inasmuch as the Claim relates to acts that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.
With respect to Part One of the Claim, Claimant testified that, on March 31, 2004, he was in his cell listening to his radio when Correction Officer Allison directed him to reduce the volume of his radio. Claimant conceded on cross-examination that playing the radio without headphones was a violation of prison rules, but argued that the rule was not regularly enforced. Nevertheless, at about 10:00 P.M. the next day, April 1, 2004, Claimant was again listening to the radio in his cell in violation of the rules. At that time, Correction Officer Temple was conducting a routine inmate count and confirming that cell doors were locked. When Officer Temple got to his cell, Officer Temple asked Claimant to give her the radio. According to Claimant, he asked Officer Temple to stay outside the cell, but had difficulty unplugging and freeing the radio from the wall where it was hanging. Officer Temple entered the cell and Claimant gave her the radio, which fell to the floor. Claimant testified that "I asked her to be careful with my radio because I just got it and I didn't...you know...the State would have to pay for it if it was damaged." Claimant was informed by other inmates that his radio was smashed on the stairs.
Claimant testified that, shortly after the incident with Officer Temple, Claimant was removed from his cell and placed in the Special Housing Unit ("SHU"). He was strip searched in accordance with standard procedure, but he argues that he was forced to undergo repeated cavity searches to humiliate him and was punched in the back when he corrected the officers on the pronunciation of his name. Claimant contends that as he was placed in the SHU cell, officers twisted his wrists violently as they removed his handcuffs, causing him to urinate on himself. Claimant asserts that he filed grievances and wrote letters, but offered no documents for evidence. He was issued a Tier III Misbehavior Report on April 2, 2004 for creating a disturbance, assault on staff, interference with staff, and harassment. Claimant agreed that he requested and received the assistance of prison staff in preparing his defense to the charges, and requested and received documents relating to the incident. A Superintendent's Hearing before a hearing officer was commenced on April 5, 2004 and concluded on April 9, 2004. Claimant requested five inmate witnesses and three correction officer witnesses, and was allowed to question them all. According to Claimant, Officer Temple participated by telephone because she was not scheduled to be at the prison and testified that Claimant hit her with the radio. Claimant contends that her testimony was false. On cross-examination, Claimant agreed that the Hearing Officer issued a written determination finding Claimant guilty on all charges based on the evidence, including that Officer Temple suffered a broken nose during the incident with Claimant, a finding also disputed by Claimant without evidentiary support. Claimant's informal appeal to the Superintendent was denied, although the penalty was reduced, and Claimant conceded on cross-examination that he failed to appeal to the Commissioner as was his right under DOCS regulations. In contrast to his earlier testimony that he filed a grievance, on cross-examination Claimant testified that he did not have a chance to file a grievance in this matter and, whenever he did in the past, it just disappeared. On further cross-examination, however, Claimant agreed that he had filed grievances in the past and was subject to disciplinary proceedings and found guilty for two prior assaults on prison staff.
Claimant subsequently commenced a CPLR Article 78 proceeding to review the determination of the hearing officer finding claimant guilty of violating prison rules. Following a transfer from Supreme Court, the Appellate Division confirmed the determination and dismissed Claimant's petition (see Matter of Hamid v Goord, 25 AD3d 1041, 1042 [3d Dept 2006]).
While the record of the Tier III Superintendent's Hearing is not in evidence in the current case, the Appellate Division summarized the relevant facts as follows:
After observing petitioner play his radio in his cell in a loud manner, a correction officer directed him to surrender it. Petitioner refused, became argumentative and shouted obscenities at the officer. Petitioner then threw the radio at the officer, striking her in the face and left hand (Matter of Hamid v Goord, 25 AD3d at 1041).
Claimant testified that, following his placement in the SHU, he was criminally charged with assault, fingerprinted by correction officers at Eastern Correctional Facility, but never arrested by an outside agency. He was escorted to his arraignment and then to trial where he was acquitted by a jury. Claimant's Exhibit 1, received into evidence over Defendant's objection, is a copy of a certificate of the Chief Deputy Ulster County Clerk that documents that Indictment No. 124-2004 was filed in County Court on June 18, 2004 charging Saleem Hamid f/k/a Gregory Mescol with three counts of assault in the second degree, that Claimant entered a plea of not guilty at arraignment on July 26, 2004, and that, by a unanimous verdict of the jury, Claimant was found not guilty on all three counts following a trial held June 13, 2005 to June 16, 2005.
On cross-examination, Claimant agreed that he subsequently commenced an action in United States District Court for the Northern District of New York pursuant to 42 USC § 1983 alleging that Officer Temple, 11 other DOCS employees, DOCS and the State of New York violated his constitutional rights by, among other things, subjecting him to false arrest and malicious prosecution under State law, and denying him due process in the disciplinary proceeding and in the criminal prosecution (see Hamid v Temple, No. 05-CV-1358, 2009 WL 499136, Report-Recommendation and Order, David R. Homer, Magistrate [NDNY August 19, 2008], accepted as modified Hamid v Temple, No. 05-CV-1358, 2009 WL 499136, Decision and Order, Gary L. Sharpe, District Judge [NDNY February 26, 2009]).
At the close of Claimant's case, the Defendant moved for dismissal of the allegations contained in Part One of the Claim on the grounds that Claimant failed to meet his burden of proof by a preponderance of the evidence, and also that the claims are barred by collateral estoppel. Claimant argued that the cause of his claims was the false reporting and testimony of Officer Temple. Defendant also asserted in its Answer that its actions in connection with the incident were justified and privileged or immune from liability because they were in accord with applicable rules regarding the discipline of prison inmates. With respect to its collateral estoppel argument, Defendant requested that the Court take judicial notice of Judge Sharpe's Decision and Order dismissing Claimant's § 1983 action in the Northern District of New York (see id.). The Decision and Order was accepted into evidence as Defendant's Exhibit B without objection. Claimant acknowledged that that was a decision in his Federal case and did not object to the Court taking judicial notice of it. While the Court agreed to take judicial notice of Judge Sharpe's Decision and Order, as well as Magistrate Homer's Report-Recommendation appended thereto (see Matter of Lagano v Soule, 86 AD3d 665, 667 n 5 [3d Dept 2011]), the Court notes that both are electronically reported (see Hamid v Temple, 2009 WL 499136).
Part One of the Claim includes allegations of false arrest and wrongful confinement following the incident with Officer Temple. False arrest, false imprisonment and wrongful confinement are terms that can be used interchangeably to describe the actionable intentional tort of interfering with "the personal interest of freedom from restraint of movement" (Broughton v State of New York, 37 NY2d 451, 456 [1975]; see Donald v State of New York, 17 NY3d 389, 394-395 [2011]). Claimant alleges that the criminal charges lodged against him constituted a false arrest. To establish this cause of action, 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 at 456 [citations omitted]). With respect to the criminal charges lodged against him, Claimant testified that he was never arrested by an outside agency and only fingerprinted by DOCS staff. He neither plead nor proved that he was physically arrested or confined in any way as a result of the lodging of the criminal charges. Indeed, he testified that he was confined in the SHU as a result of the Misbehavior Report, not criminal charges. Absent any proof of the necessary element of confinement resulting from the criminal charges, Claimant has not met his burden to prove his claim of false arrest.
However, even assuming that the act of fingerprinting Claimant while he was confined in the SHU constituted a confinement for purposes of a claim of false arrest, Defendant nevertheless argues that Claimant is collaterally estopped from pursuing this false arrest claim because it was one of his claims raised and dismissed on the merits in his Federal civil rights action pursuant to 42 USC § 1983.
Collateral estoppel "precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984][citations omitted]). The proponent of collateral estoppel must "prove that the identical issue was necessarily decided in the prior action and is decisive in the present action" (D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990] [citation omitted]). The party opposing collateral estoppel has the burden "to establish the absence of a full and fair opportunity to litigate" that issue in the prior proceeding (id.). The principles of collateral estoppel can bar in a subsequent State court action claims raised in an earlier Federal civil rights action (see Martinez v City of Schenectady, 276 AD2d 993, 995 [3d Dept 2000], affd 97 NY2d 78 [2001]).
The affirmative defense of collateral estoppel was not asserted in Defendant's Answer or in a pre-answer motion to dismiss (see CPLR 3211 [a] [5], [e]). However, that is because the Decision and Order in the Federal civil rights action was issued on February 26, 2009, more than three years after the Answer in this case was filed on November 25, 2005. Claimant argued neither surprise nor prejudice to the affirmative defense, and testified on cross-examination that he asserted this false arrest claim in his Federal case. Moreover, this particular affirmative defense does not raise new issues of fact in the present case. Accordingly, the Court concludes, sua sponte, that Defendant's motion to dismiss should also be treated as a motion to amend its pleadings or conform its pleadings to the proof (see CPLR 3025 [b] and [c]) and deems Defendant's pleadings amended to include the affirmative defense of collateral estoppel (see River Val. Assoc. v Consolidated Rail Corp., 182 AD2d 974, 976 [3d Dept 1992]). Upon review of Judge Sharpe's Decision and Order, and Magistrate Homer's Report-Recommendation, it is clear that Claimant's identical false arrest claim was raised and dismissed because the Court there found that probable cause existed for the criminal charges (see Hamid v Temple, 2009 WL 499136, *11 n 14). As Claimant does not assert that he was denied a full and fair opportunity to litigate this claim there, collateral estoppel precludes him from relitigating this Claim in the Court of Claims (see D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d at 664).
Part One of the Claim alleges another false arrest claim, one for wrongful confinement in the SHU. The same four elements that must be shown for false arrest in the criminal context also apply to a claim for wrongful confinement in the prison setting (see e.g. Middleton v State of New York, 54 AD2d 450 [3d Dept 1976], affd 43 NY2d 678 [1977]). However, in the prison disciplinary context, a detention is privileged when it is imposed in accordance with DOCS regulations (see Lee v State of New York, 124 AD2d 305, 307 [3d Dept 1986]). While Claimant has established that Defendant intended to confine him and that he was conscious of the confinement, Claimant conceded on cross-examination that Defendant followed its regulations governing disciplinary procedures but erred in crediting Officer Temple's testimony. Moreover, in contrast to cases brought in the Court of Claims after the disciplinary determination is reversed administratively or through an Article 78 proceeding, Defendant's determination that Claimant violated prison rules and imposed SHU confinement was confirmed by the Appellate Division (see Matter of Hamid v Goord, 25 AD3d 1041). Therefore, Defendant's determination justifies Claimant's SHU confinement. Because his claim for wrongful confinement necessarily seeks another review of the agency's determination and, under a liberal reading of the Claim, Claimant's request for money damages is incidental to his objection to the Misbehavior Report and disciplinary confinement, the Court is without jurisdiction to hear this claim (see Guy v State of New York, 18 AD3d 936, 937 [3d Dept 2005]; Mullen v State of New York, Ct Cl, Claim No. 116118, Motion No. M-78168, Minarik, J. [July 15, 2010], affd 83 AD3d 1525 [4th Dept 2011]).
Part One of the Claim also alleges a claim for malicious prosecution. To establish this cause of action, Claimant must prove "(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice" (Broughton v State of New York, 37 NY2d at 457 [citation omitted]). While Claimant has demonstrated the first two elements, he has not proved malice. There is no competent evidence in the record to support a finding that Officer Temple or other DOCS staff acted with malice or "with a reckless or grossly negligent disregard of the plaintiff's rights" (Guntlow v Barbera, 76 AD3d 760, 766 [3d Dept 2010], appeal dismissed 15 NY3d 906 [2010][internal quotation marks and citations omitted]). Claimant's conclusory assertion that Officer Temple reported and testified falsely, by itself, does not provide a sufficient basis to infer malice. Indeed, while testifying about the circumstances immediately prior to the incident with Officer Temple, Claimant expressed surprise at her reaction stating "I don't know how CO Temple came into this." As a result, the Court infers that Claimant and Officer Temple did not have a hostile history from which malice might reasonably be inferred (see e.g. Lenehan v Familo, 79 AD2d 73, 75 [4th Dept 1981], appeal dismissed 54 NY2d 680 [1981]). Therefore, Claimant has not met his burden to prove his claim of malicious prosecution.
However, even if Claimant had proven actual malice, he offered no proof of the absence of probable cause. In addition to Officer Temple's testimony, Officer McDonough testified at the disciplinary hearing that he saw Officer Temple immediately after the incident and that she was "visibly upset and bleeding" (Hamid v Temple, 2009 WL 499136, *1 [internal quotation marks omitted]). Contrary to the testimony cited by the Federal Court, Claimant testified in the current case that Officer McDonough had testified at the disciplinary hearing that Officer McDonough did not see any injuries on Officer Temple. After hearing the witness testify and observing his demeanor, and given the several substantial inconsistencies in his testimony, the Court will not credit Claimant's testimony regarding the incident, especially his contention that Officer Temple reported and testified falsely.
Defendant argues, moreover, that Claimant is collaterally estopped from bringing a claim for malicious prosecution because it was alleged and defeated in his Federal action. Upon further review of the Decision and Order and the Report-Recommendation, it is clear that the Court there granted summary judgment to the defendants on this claim because it determined that probable cause existed for the indictment by the grand jury (id. at 11). As Claimant again does not contend that he was denied a full and fair opportunity to litigate this claim in his Federal case, collateral estoppel precludes him from relitigating the issue of probable cause in the Court of Claims (see D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d at 664).
Based on a liberal reading of Part One of the Claim, Claimant also alleges that DOCS failed to investigate the charges brought against him and failed to properly train and supervise staff. These claims are essentially claims for negligent investigation or prosecution and are not actionable in New York (see Russ v State Empls. Fed. Credit Union [SEFCU], 298 AD2d 791, 793 [3d Dept 2002]; Simon v State of New York, 12 AD3d 171, 171 [1st Dept 2004] [Claimant seeking damages for false arrest may not also proceed under theory of negligence]). In any event, the charges were the subject of a Superintendent's Hearing resulting in a determination that Claimant violated prison rules, and that determination was confirmed by the Appellate Division (see Matter of Hamid v Goord, 25 AD3d at 1041). Other than Claimant's conclusory allegations, there is no evidence in the record that Defendant breached any duty under its disciplinary regulations.
Part One of the Claim also alleges cruel and unusual punishment under the State and Federal Constitutions. The claim for cruel and unusual punishment under the New York State Constitution fails because it merely recasts Claimant's other claims under a new heading and redress for those alleged wrongs were pursued through his tort claim for false imprisonment and malicious prosecution (see Lyles v State of New York, 2 AD3d 694, 695 [2d Dept 2003], affd 3 NY3d 396 [2004]) and by way of his CPLR Article 78 proceeding (see Bullard v State of New York, 307 AD2d 676, 678 [3d Dept 2003]). Claimant could have also sought relief through a timely interposed common-law tort action for assault and battery against the involved correctional officers in their individual capacities (see Waxter v State of New York, 33 AD3d 1180, 1182 [3d Dept 2006]). Accordingly, "[r]ecognition of a constitutional tort claim here is neither necessary to effectuate the purposes of the State constitutional protections [Claimant] invokes, nor appropriate to ensure full realization of [his] rights" (Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]). The claim for cruel and unusual punishment under the United States Constitution is beyond the Court's jurisdiction (see Carver v State of New York, 79 AD3d 1393, 1395 [3d Dept 2010], lv denied 17 NY3d 707 [2011]).
Finally, Part One of the Claim also includes conclusory allegations of physical, psychological, sexual and verbal abuse, and race and religious discrimination. Claimant's testimony lacked any mention of facts to support claims of psychological, sexual or verbal abuse or race and religious discrimination. Moreover, Claimant, offered no credible evidence other than his own testimony to support the claim of physical abuse. Furthermore, Claimant conceded on cross-examination that a Sergeant Miraldi conducted an investigation following the SHU admission and noted that Claimant was placed in SHU without injury. In addition, Claimant agreed that he did not report any pain or injuries to the nurse when he received the mandatory medical examination within 24 hours of SHU admission. As a result, the Court is unwilling to credit Claimant's testimony that he was beaten after the incident with Officer Temple. While it is understandable that Claimant may have felt humiliated during the mandatory strip search, that alone does not support a claim for damages. Accordingly, Claimant has not met his burden to prove these claims by a preponderance of the credible evidence.
Part Two of the Claim seeks recovery for lost or destroyed personal property. Claimant testified that while he was attending a court date for the assault charges on June 9, 2005, Defendant lost or destroyed one storage bin worth $7.00 containing various food and cosmetic items, as well as sneakers, photographs, and a sweat suit, all valued at $54.00. Claimant testified that he filed a claim form and was awarded $3.00.
At the close of Claimant's case, Defendant moved to dismiss Part Two of the Claim on the grounds that it was untimely filed and served (see Court of Claims Act § 10 [9]), and because Claimant failed to exhaust his administrative remedies. Regardless of whether the Claim was timely filed and served or not, Defendant's objection based on timeliness was not preserved in its Answer and is therefore waived (see Court of Claims Act § 11 [c] [i]).
Pursuant to Court of Claims Act § 10 (9), an inmate in DOCS' custody may bring a Claim in the Court of Claims to recover for damage to or loss of personal property, but only after the inmate has exhausted the "personal property claims administrative remedy" established for inmates by the Department. Failure to comply with the exhaustion requirement deprives the Court of Claims of subject matter jurisdiction (see Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007]). Here, Claimant did not establish at trial that he complied with DOCS' administrative remedy for personal property claims with regard to his sneakers, photograph, and sweat suit, and the Claim for those items must be dismissed for lack of subject matter jurisdiction.
However, Claimant testified to his compliance with the administrative claim process with regard to the lost storage bin containing various food and cosmetic items. Nevertheless, Claimant testified that he could not recall specific cosmetic or food items. Moreover, Claimant conceded on cross-examination that the various food and cosmetic items were not listed on his property inventory form that was prepared at the time his property was being placed into storage just prior to his departure for his court appearance. Therefore, there is no written accounting of the items alleged to have been inside the bin that was lost. Moreover, apart from the lost storage bin that he valued at $7.00, Claimant presented no testimony regarding the value of the various food and cosmetic items.
Regarding the bin, but not its contents, the Court notes that Claimant was awarded $3.00 which, without more evidence to the contrary, appears to be fair compensation for the used bin. In any event, Claimant's testimony was substantially inconsistent when it comes to the bin. According to Claimant, he had two bins -- one containing the various food and cosmetic items, and another that was empty. He further testified that the bin containing the items was placed into the empty bin for storage, but only one bin was listed on the property inventory form. Initially, Claimant testified that neither bin was returned to him. On cross-examination, however, Claimant conceded that one bin was returned to him empty.
While providing inconsistent testimony, Claimant offered no documentary evidence, not even the evidence supporting his institutional claim. While the Court appreciates that a significant amount of time has elapsed since the incident, which could hinder the witness' recollection, it is Claimant's burden to prove the allegations. Here, after listening to the witness' testimony and observing his demeanor, the Court concludes that Claimant did not prove by a preponderance of the credible evidence the identity of the various food and cosmetic items allegedly lost or their fair market value.
Based on the foregoing, the Claim is dismissed in its entirety. All motions outstanding are denied as moot.
Let judgment be entered accordingly.
December 29, 2011
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims