Opinion
# 2019-015-115 Claim No. 124951
02-25-2019
EVERETT McMILLAN v. THE STATE OF NEW YORK
Everett McMillan, Pro Se Honorable Letitia James, Attorney General By: Christina Calabrese, Esq., Assistant Attorney General
Synopsis
Pro se inmate's claim alleging damages for wrongful confinement as the result of a prison disciplinary hearing was dismissed following trial. Although claimant established a violation of one of the fundamental due process safeguards, thereby divesting the State of its claim to immunity, claimant failed to establish a prima facie case of wrongful confinement because he failed to demonstrate that the outcome of the hearing would have been different had no due process violation occurred. Claimant therefore failed to establish that the confinement was not privileged.
Case information
| UID: | 2019-015-115 |
| Claimant(s): | EVERETT McMILLAN |
| Claimant short name: | McMILLAN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124951 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Everett McMillan, Pro Se |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Christina Calabrese, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 25, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant seeks damages for wrongful confinement following a disciplinary hearing in which he was found guilty of violating prison rules prohibiting illicit drug use. A trial of this matter was conducted by video teleconference on January 10, 2019.
Claimant testified he was placed on keeplock status on December 6, 2013 while he was confined as an inmate at the Great Meadow Correctional Facility (Great Meadow). He was served with an inmate misbehavior report the following day which charged him with violating a rule prohibiting the use of a controlled substance by inmates, based on a urine sample obtained from the claimant which tested positive for cannabinoids (claimant's Exhibit 7). Claimant's Exhibit 4 is a request for urinalysis form dated November 4, 2013. The request identifies the claimant by name, DIN number and cell location. The space allowed for designating the claimant's cell location first sets forth cell C-3-6. That cell number is crossed out on the form and the designation D-5-7 is added in its place. The request for urinalysis form indicates that a urine specimen was obtained from the claimant on November 12, 2013 and that the specimen tested positive for cannabinoids.
At his hearing claimant explained "in November, on this urinalysis ticket I wasn't in that cell on D-5-7, on November the 4th or whenever that was taken, on that document right there. I wasn't in that cell" (claimant's Exhibit 1, p 4). Claimant's request that the inmate residing in cell D-5-7 in November 2013 be called to testify as a witness at the hearing was denied. At trial the claimant testified that he sought the inmate's testimony to determine whether he provided a urine sample on November 12, 2013. Claimant was confined for a total of eight months following the hearing officer's determination finding him guilty of violating prison rules regarding the use of controlled substances. Claimant then brought an article 78 proceeding which was dismissed as moot when the underlying superintendent's hearing was reversed and all records concerning the hearing were directed to be expunged.
On cross-examination the claimant denied that he was at any time subjected to a urine test during November 2013.
The defendant called Christopher Stevens as a witness at trial. Mr. Stevens testified that he has been a Correction Officer at Great Meadow for the last 19 years, the last 9 of which he has been involved in administering urinalyses to inmates. Despite having first testified to his specific interactions with the claimant on November 12, 2013, Correction Officer Stevens later testified on cross-examination that he does not specifically recall administering a urinalysis to the claimant on that date. Rather, he described the procedures applicable to the urinalysis testing of all inmates at Great Meadow. According to the witness, inmates subject to urinalysis tests are called to the facility auditorium where they present their inmate identification card which contains a photograph and the inmate's name, identification number and date of birth. The inmate's name, New York State inmate identification number and cell location are entered on a cup which is provided to the inmate. The inmate and a correction officer then enter a small bathroom in the auditorium area where the taking of the urine sample is observed by the officer. The sample is then sealed and sent for testing.
On cross-examination Officer Stevens testified that inmates must produce their identification card prior to urinalysis testing. As stated earlier, the witness confirmed that he did not specifically recall taking a urine sample from the claimant on November 12, 2013. On redirect he testified that notwithstanding his lack of recollection of the event, the same procedure is used for the testing of all inmates.
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]). The State is not immune from liability, however, where it subjects inmates to a punitive confinement without a hearing or other required due process safeguards (Arteaga, 72 NY2d at 221). In Wolff v McDonnell (418 US 539 [1974]) the Supreme Court held that inmates charged with violations of prison disciplinary rules that could result in the loss of "good time" credit are entitled to certain minimal due process protections under the U.S. Constitution (see also Matter of Laureano v Kuhlmann, 75 NY2d 141, 144 [1990]). Such protections includes a hearing with advance written notice of the charges, the right to call witnesses and present documentary evidence, and the right to a written statement of the evidence relied on and the reasons for the disciplinary action taken (Wolff, 418 US at 563-570). While the right to call witnesses is among the due process protections afforded inmates, it is conditioned on a determination that institutional safety and correctional goals will not be jeopardized (id. at 566). This right is implemented by DOCCS' regulations, which afford inmates "additional protections above and beyond those minimum requirements for procedural due process recognized by the United States Supreme Court" (Matter of Texeira v Fischer, 26 NY3d 230, 234 [2015]; see also Matter of Laureano, 75 NY2d at 147). For example, DOCCS' regulations recognize an inmate's constitutional right to call witnesses on his or her behalf "provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals" (7 NYCRR 253.5 [a]). In addition to this constitutionally protected right, the regulation also requires that "a written statement stating the reasons for the denial" be provided (7 NYCRR 253.5 [a]). Although the failure to provide a written statement of the reasons for the denial is a regulatory violation, it is not a violation of one of the constitutionally required due process protections afforded inmates (Matter of Texeira, 26 NY3d at 234). Similarly, the discretionary determination that a witness' testimony is irrelevant, redundant or may jeopardize institutional safety may constitute an abuse of discretion, but it does not violate the constitution ( see Matter of Roberson v Bezio, 70 AD3d 1226, 1227 [3d Dept 2010], lv denied 14 NY3d 714 [2010]; Matter of Hillard v Coughlin, 187 AD2d 136 [3d Dept 1993], lv denied 82 NY2d 651 [1993]). Nor, according to the Appellate Division, Third Department, does it violate the implementing regulations ( see Diaz v State of New York, 155 AD3d 1279,1281 [3d Dept 2017], lv dismissed in part and denied in part 30 NY3d 1101 [2018] [assuming Hearing Officer abused her discretion in denying claimant's request for a witness, the discretionary determination was not a regulatory violation]).
The Appellate Divisions of the Third and Fourth Departments appear to disagree with respect to whether violation of a due process safeguard requiring the exercise of discretion may form the basis for a wrongful confinement claim. Whereas the Fourth Department held in Bottom v State of New York (142 AD3d 1314 [4th Dept 2016], appeal dismissed 28 NY3d 1177 [2017]) that a Hearing Officer's erroneous denial of claimant's request for witnesses on the ground the proffered testimony was irrelevant was not subject to absolute immunity, the Third Department held in Diaz (155 AD3d at 1281) that a Hearing Officer's denial of claimant's request to ask a witness certain questions, even if erroneous, was nevertheless within her discretionary authority and did not demonstrate a violation of the applicable regulation.
Consequently, such erroneous determinations may result in annulment of the disciplinary determination and a new hearing, but not expungement from an inmate's institutional record (see generally Matter of Alvarez v Goord, 30 AD3d 118 [3d Dept 2006]; Matter of Hillard, 187 AD2d at 140). In the context of an action for money damages in the Court of Claims, the State retains its immunity for a Hearing Officer's discretionary determinations, however imperfect the exercise of that discretion may have been (Diaz v State of New York, 155 AD3d 1279 [3d Dept 2017], lv dismissed in part and denied in part 30 NY3d 1101 [2018]; Shannon v State of New York, 111 AD3d 1077 [3d Dept 2013]; Loret v State of New York, 106 AD3d 1159 [3d Dept 2013], lv denied 22 NY3d 852 [2013]; but see Bottom v State of New York, 142 AD3d 1314 [4th Dept 2016], appeal dismissed 28 NY3d 1177 [2017] [Hearing Officer's improper determination that the inmate's proffered witness testimony was irrelevant, though discretionary, constituted a violation of a due process safeguard contained in 7 NYCRR parts 252 through 254]). By contrast, an outright denial of an inmate's request to call a witness without a stated good faith explanation violates not only an inmate's regulatory rights, but his or her constitutional rights as well (see Matter of Barnes v LeFevre, 69 NY2d 649 [1986]; Matter of Caldwell v Goord, 34 AD3d 1173 [3d Dept 2006]). As made clear by the Court in Arteaga, the State is not afforded immunity for such due process violations (see also Bethune v State of New York, 50 Misc 3d 1216 [A] [Ct Cl, 2015]; Amato v State of New York, Ct Cl, June 26, 2014, Milano J., UID No. 2014-041-038; Diaz v State of New York, UID 2006-036-008 [Ct Cl, Schweitzer, J. June 20, 2006]).
The instant claim is predicated on the assertion that defendant violated claimant's due process right to call witnesses to testify on his behalf. Claimant testified at the hearing that he did not provide a urine sample on November 12, 2013 and he did not reside in cell D-5-7 at the time the urine sample was taken. As a result, claimant requested to call as a witness the inmate who resided in cell D-5-7 on the date the urine sample was taken (Exhibit 1, p. 5). Testimony from the inmate who resided in cell D-5-7 regarding whether or not he provided a urine sample on November 12, 2013, and if so, whether it was provided from his cell location or the auditorium would have been relevant to the claimant's defense of the charge. However, neither the transcript of the hearing nor any of the paperwork generated as a result thereof reflect the Hearing Officer's decision with respect to claimant's request for this inmate witness. The only conclusion that can be reached, therefore, is that the claimant's request for this inmate witness was denied, without explanation. Claimant, therefore, established a violation of a fundamental due process right for which absolute immunity does not insulate the State from liability.
In addition, large portions of the hearing were not recorded in violation of 7 NYCRR 253.6 (b).
Notwithstanding the loss of immunity for defendant's violation of claimant's fundamental right to call witnesses to testify on his behalf, claimant is not relieved from establishing the material elements of a tort claim (see Lauer v City of New York, 95 NY2d 95, 99-101 [2000]; Tango v Tulevech, 61 NY2d 34, 40 [1983]; Moustakos v State of New York, 133 AD3d 1268 [4th Dept 2015]). Rather, 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, at 1269, quoting Kilpatrick v State of New York, Ct Cl, Dec. 2001, Patti, J., claim No. 100462, UID No. 2001-013-031).
To prevail on a common law cause of action for wrongful confinement, a species of false imprisonment, it must be established that "(1) 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 the fourth element, that the eight-month period of confinement was not privileged, because there is no evidence that the outcome of the hearing would have been different had claimant been permitted to call the inmate from cell D-5-7 to testify on his behalf at the hearing (see Moustakos, 133 AD3d at 1270; see also Watson v State of New York, 125 AD3d 1064 [3d Dept 2015]; cf. Diaz, 155 AD3d 1279). Accordingly, claimant failed to establish that his punitive confinement was not privileged.
Based on the foregoing, the claim is dismissed.
Let judgment be entered accordingly.
February 25, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims