Opinion
# 2016-041-030 Claim No. 127150 Motion No. M-88084
05-31-2016
MARCUS ANTHONY MICOLO, #03-A-3985 v. THE STATE OF NEW YORK
MARCUS ANTHONY MICOLO Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Glenn C. King, Esq. Assistant Attorney General
Synopsis
Claimant's motion for summary judgment in wrongful confinement action based upon allegedly excessive pre-disciplinary hearing confinement is denied where claimant fails to show, as a matter of law, that pre-hearing determination confinement was not privileged or that defendant's quasi-judicial hearing immunity is abrogated by defendant's alleged violation of a disciplinary hearing regulation.
Case information
| UID: | 2016-041-030 |
| Claimant(s): | MARCUS ANTHONY MICOLO, #03-A-3985 |
| Claimant short name: | MICOLO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127150 |
| Motion number(s): | M-88084 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | MARCUS ANTHONY MICOLO Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Glenn C. King, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 31, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate at Clinton Correctional Facility (Clinton), moves for summary judgment as to defendant's alleged liability for "wrongfully excessively" confining claimant for forty-one (41) days at Clinton in the course of an inmate disciplinary proceeding. Defendant opposes the motion.
The claim, together with claimant's affidavit supporting his summary judgment motion, alleges that claimant was issued a misbehavior report on September 19, 2015 asserting that claimant had violated "inmate rule number 180.17 (Unauthorized Legal Assistance to another inmate)." Claimant was placed on keeplock status that same day. Claimant further alleges that "he had no prior violations of this rule" and that "defendant's own 'Guidelines for Disciplinary Dispositions' . . . clearly showed that claimant was subject to zero (0) days confinement for his first violation of rule number 180.17." Claimant states that on September 20, 2015 defendant's "Disciplinary Review Officer" reviewed the misbehavior report and claimant's disciplinary record. Claimant alleges that the Disciplinary Review Officer had knowledge both that the pending charge was claimant's first alleged violation of rule 180.17 and that the defendant's own regulation stated that claimant was not subject to confinement for a first-time violation of rule 180.17, yet continued claimant's keeplock status pending disposition of the disciplinary charge.
Claimant further states that the alleged rule violation was a "minor infraction" and that the Disciplinary Review Officer "could not reasonably be said to have rendered claimant to be a danger to the safety and security of the facility" so as to continue claimant's keeplock status on that basis.
Claimant alleges that he was intermittently wrongfully confined to keeplock for forty-one (41) days between September 19, 2015 and November 4, 2015 when he was found guilty of the disciplinary charge. While arguing that defendant's own "Guidelines for Disciplinary Dispositions" provided that he was subject to zero (0) days confinement for his first violation of rule number 180.17, claimant further asserts as a basis for recovery that the maximum penalty for any Tier II disciplinary charge was thirty (30) days confinement. Thus, claimant states, he was confined for eleven (11) days longer than any potential penalty which could have been imposed as part of the hearing determination.
The standard for review of the motion is well-established. "A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. . . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).
Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 31 AD3d 877 [3d Dept 2006]).
The Court "must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and ascertaining whether there exists any triable issue of fact" (Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]).
Summary judgment is "a drastic remedy" (Lebanon Val. Landscaping v Town of Moriah, 258 AD2d 732, 733 [3d Dept 1999]). It "is the procedural equivalent of a trial . . . and should be granted only when it has been established that there is no triable issue of material fact" (Harris v State of New York, 187 Misc 2d 512, 517 [Ct Cl 2001]; see Paulin v Needham, 28 AD3d 531 [2d Dept 2006]).
To establish that he was wrongfully confined, 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]; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).
With respect to whether a confinement is privileged, Holmberg v County of Albany (291 AD2d 610, 612 [3d Dept 2002], lv denied 98 NY2d 604 [2002]), instructs that: "Generally, where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged . . . and everyone connected with the matter is protected from liability for false imprisonment."
The Court finds that claimant, through his detailed, verified claim, and affidavit supporting his summary judgment motion, has met his initial burden to present a prima facie case of wrongful confinement based upon the defendant's alleged failure to follow its own rules and regulations in its confinement of claimant prior to, and during the course of, the disciplinary proceeding in question.
In opposition to claimant's motion, defendant shows, through documentary evidence, that claimant filed an inmate grievance at Clinton on or about November 1, 2015 alleging that disciplinary hearing extensions/adjournments were requested and/or issued for the purpose of keeping claimant in confinement prior to disposition of the disciplinary charge. According to defendant's attorney, the grievance was "denied as there was no evidence of improper staff conduct." Claimant's allegation in this regard is also specifically refuted by the affidavit of correction officer Lieutenant Brousseau. More importantly, defendant argues that claimant has not "submitted evidence or proof in admissible form demonstrating that his confinement was not privileged or that [defendant] deviated from accepted standards and procedures."
Defendant thus asserts that issues of fact exists as to an element of claimant's cause of action, that is, whether the confinement was privileged, and defendant further relies upon the quasi-judicial governmental immunity defense set forth in its answer. Both of these bases of opposition to the claimant's summary judgment motion ultimately turn on the issue of whether defendant complied with applicable rules and regulations in confining claimant prior to the issuance of a hearing determination.
In the context of confinement pursuant to a prison disciplinary proceeding, such confinement is "privileged to the extent that it was under color of law or regulation, specifically in accordance with [inmate misbehavior] regulations" (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]).
The governmental immunity defense provides that where employees of the Department of Corrections and Community Supervision, in commencing and conducting formal inmate disciplinary proceedings, "act under the authority of and in full compliance with the governing statutes and regulations . . . their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity" (Arteaga v State of New York, 72 NY2d 212, 214 [1988]; Varela v State of New York, 283 AD2d 841 [3d Dept 2001]). This immunity attaches even if the conviction is later reversed administratively or as the result of a successful CPLR Article 78 proceeding (see Arteaga, 72 NY2d at 215).
If, however, prison officials fail to comply with a rule or regulation governing such disciplinary hearings, absolute immunity may be lost and liability for money damages may be imposed if it is proven that the regulatory violation caused actual prejudice or injury to the inmate (see Davidson v State of New York, 66 AD3d 1089, 1089 [3d Dept 2009]; Vasquez v State of New York, 10 AD3d 825 [3d Dept 2004]).
According to claimant's supporting affidavit, defendant violated applicable hearing regulations as follows:
1. Pre-hearing determination confinement of claimant for an offense for which no penalty of confinement is mandated ("'Guidelines for Disciplinary Dispositions' . . . clearly showed that claimant was subject to zero (0) days confinement for his first violation of rule number 180.17"); and,
2. Pre-hearing determination confinement of claimant in excess of thirty days for a disciplinary tier offense for which the maximum penalty is thirty days ("I was confined over 30 days on a Tier II MBR on which . . . I can serve, at most, 30 days confinement [Dir. 4932, 7 N.Y.C.R.R. § 251-3.1]").
Claimant's motion for summary judgment must be denied because the affirmation of defendant's attorney, and the affidavit of correction officer Lieutenant Brousseau, along with the attached exhibits, show the existence of triable issues of fact.
The affidavit of Lieutenant Brousseau offers a first-hand, non-hearsay account of the relevant events regarding claimant's placement, and continued retention, in keeplock through the conclusion of the disciplinary proceeding.
With respect to the basis for claimant's pre-hearing determination confinement, Lieutenant Brousseau's affidavit cites 7 NYCRR 251-1.6 (a), which provides as follows:
"Where an officer has reasonable grounds to believe that an inmate should be confined to his cell or room or housing area because he represents an immediate threat to the safety, security or order of the facility or in immediate danger to other persons or to property, such officer shall take reasonable and appropriate steps to so confine the inmate."
Lieutenant Brousseau further cites legal precedents which he states have interpreted the regulation as authorizing keeplock where it is reasonably believed that an inmate has violated a facility rule and, that in claimant's case, "my belief was that claimant had violated a facility rule and thus presented an immediate threat to the order of the facility."
Lieutenant Brousseau's affidavit further asserts, supported by documentary evidence, that at least some of the periods of time claimant spent in pre-hearing determination confinement was due to hearing extensions necessitated by requests for production of witnesses made by claimant and that other periods of confinement resulted from claimant's temporary absence from Clinton, from claimant's placement in the mental health observation unit and from the temporary unavailability of the hearing officer and a witness requested by claimant.
Viewing the evidence presented on the claimant's summary judgment motion most favorably to the party opposing the motion, as required in assessing a request for summary judgment, the Court finds that the evidence offered by defendant raises issues of fact requiring a trial as to whether claimant's confinement was privileged and whether defendant was entitled to immunity for its purportedly discretionary determination to confine claimant pursuant to 7 NYCRR 251-1.6 (a).
Claimant's motion for summary judgment is accordingly denied.
May 31, 2016
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion for Summary Judgment, filed January 25, 2016; 2. Affidavit of Marcus A. Micolo, sworn to January 14, 2016, and attached exhibits; 3. Affidavit of Marcus A. Micolo, sworn to February 17, 2016, and attached exhibits; 4. Affirmation in Opposition of Glenn C. King, dated April 8, 2016, and attached exhibits; 5. Reply letter of Marcus A. Micolo, dated April 11, 2016.