Opinion
# 2020-015-042 Claim No. 126344
05-01-2020
DEREK JOSEY, 01A5108 v. THE STATE OF NEW YORK
Derek Josey, Pro Se Honorable Letitia James, Attorney General By: Christina Calabrese, Esq., Assistant Attorney General
Synopsis
Pro se inmate's causes of action for wrongful confinement and malicious prosecution were dismissed following trial. With respect to the wrongful confinement cause of action, claimant failed to establish that the confinement was not privileged. To the extent the claim could be read to include a cause of action for malicious prosecution, a prison disciplinary hearing is not the type of full-scale adversarial proceeding that will support a cause of action for malicious prosecution.
Case information
| UID: | 2020-015-042 |
| Claimant(s): | DEREK JOSEY, 01A5108 |
| Claimant short name: | JOSEY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126344 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Derek Josey, Pro Se |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Christina Calabrese, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 1, 2020 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claim seeks damages for a total of 188 days during which the claimant alleges he was wrongfully confined as a result of "the Malicious Conduct and Due Process Violations by an officer or employee of the State of New York" in relation to a prison disciplinary proceeding (Claim, ¶ 6). Trial of this matter was conducted by remote video conference on January 13, 2020.
At trial Mr. Josey testified he was issued a misbehavior report charging him with the use of a controlled substance, allegedly following two positive emit urine cannabinoid tests on a urine sample obtained from the claimant on 12/20/2013. At the conclusion of a superintendent's hearing which began on December 26, 2013 and ended on January 8, 2014, claimant was found guilty of the offense and assigned 12 months in the Special Housing Unit (SHU) and an equivalent loss of privileges (Exhibit A, page 11). Claimant cited various deficiencies in the administrative proceeding at trial, including a failure to provide him "scientific papers" related to the sample testing, denial of certain witnesses including Inmate Melendez and the correction officer who conducted the test, failure to provide him logbook entries regarding removal from his cell and the time it occurred and, finally, that the hearing was not completed within 14 days of the date the misbehavior report was written as required pursuant to applicable regulations.
Quotes are taken from the audio transcript of the trial unless otherwise noted.
The administrative hearing determination was later reversed on appeal and a new hearing was ordered. Claimant was found guilty of the offense at the rehearing which was concluded on April 23, 2014, and a penalty of 12 months SHU and an equivalent loss of privileges was again imposed. Claimant testified that during the course of the hearing he began "hearing voices" and signed a waiver of his right to attend the hearing, which was completed in his absence. Claimant appealed the second administrative determination, which was reversed on June 25, 2014 on the basis "inmate's refusal to attend the hearing (form) created a duty of further inquiry for the hearing officer" (Exhibit 7). Claimant alleged at trial that the hearing officer failed to comply with Department of Corrections and Community Supervision regulations which require a hearing officer to consider an accused's mental health status. It was claimant's contention at trial that he never provided a urine sample on December 20, 2013 and that he wears a "medical device" that would prevent a correction officer from observing him while he urinated.
The law is settled that actions of correctional facility employees taken in furtherance of authorized disciplinary measures are quasi-judicial in nature and entitled to absolute immunity (Arteaga v State of New York, 72 NY2d 212 [1988]; Diaz v State of New York, 155 AD3d 1279 [3d Dept 2017], lv dismissed in part and denied in part 30 NY3d 1101 [2018]; 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], lv denied 22 NY3d 852 [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 NY2d at 221). Consequently, absolute immunity is lost where there is a violation of a due process safeguard embodied in one of the ministerial rules or regulations governing the conduct of disciplinary hearings.
Here, even if it is assumed that errors in the conduct of the hearings constituted due process violations of constitutional dimension, claimant failed to establish the material elements of a wrongful confinement claim. The due process violation "merely remove[s] the cloak of absolute immunity and make[s] the State potentially liable, if liability would be imposed under common law tort principles" (Moustakos v State of New York, 133 AD3d 1268, 1269 [4th Dept 2015], quoting Kilpatrick v State of New York, Ct Cl, Dec. 2001, Patti, J., claim No. 100462, UID No. 2001-013-031).
An inmate's right to be present at a prison disciplinary hearing is one of the fundamental due process rights implemented by the prison regulations in this State (Matter of Laureano v Kuhlman, 75 NY2d 141, 146-147 [1990]; Matter of Micolo v Annucci, 152 AD3d 1103 [3d Dept 2017]; Matter of Rush v Goord, 2 AD3d 1185 [3d Dept 2003]; Matter of Weiss v Coughlin, 199 AD2d 638 [3d Dept 1993]; 7 NYCRR 254.6 [a] [2]).
To prevail on a common law 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 NY2d 451, 456 [1975] ), cert denied sub nom. Schanbarger v Kellogg, 423 U.S. 929 [1975]; see also Moustakos, 133 AD3d at1269; Gittens v State of New York, 132 Misc 2d 399, 406 [Ct Cl 1986]). While there is no dispute as to the first three elements, claimant failed to establish that the confinement was not privileged, because there is no evidence that the outcome of the hearings would have been different had claimant been permitted to attend the hearing or call the witnesses that were erroneously denied (see Moustakas, 133 AD3d at 1270, Bottom v State of New York, 142 AD3d 1314 [4th Dept 2016], appeal dismissed 28 NY3d 1177 [2017]; see also Watson v State of New York, 125 AD3d 1064 [3d Dept 2015]).
To the extent the claim could be read to include a cause of action for malicious prosecution, it fails to state a cause of action inasmuch as the conduct of a prison disciplinary proceeding is not the type of full-scale adversarial proceeding which will support a cause of action for malicious prosecution (see Brooks v State of New York, Ct Cl, August 28, 2013, Fitzpatrick, J., claim No. 121722, UID No. 2013-018-434; Gittens, 132 Misc 2d 399; Treacy v State of New York, 131 Misc 2d 849 [Ct Cl 1986], affd sub nom. Arteaga v State of New York, 125 AD2d 916 [3d Dept 1986], affd 72 NY2d 212 [1988]).
Based on the foregoing, the claim is dismissed. Let Judgment be entered accordingly.
May 1, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims