Opinion
# 2017-053-554 Claim No. 129352 Motion No. M-90226
09-21-2017
CURTIS MIDDLEBROOKS v. THE STATE OF NEW YORK
CURTIS MIDDLEBROOKS, Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Darren Longo, Esq. Assistant Attorney General
Synopsis
The State's motion to dismiss the claim of a pro se claimant in lieu of an answer is denied. The Court finds that claimant has alleged sufficient facts which could form the basis for finding that the absolute immunity applicable to a prison disciplinary hearing would not apply and thereby be sufficient to establish a cause of action for wrongful confinement.
Case information
| UID: | 2017-053-554 |
| Claimant(s): | CURTIS MIDDLEBROOKS |
| Claimant short name: | MIDDLEBROOKS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129352 |
| Motion number(s): | M-90226 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | CURTIS MIDDLEBROOKS, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Darren Longo, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 21, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Pro se claimant Curtis Middlebrooks filed a claim on February 27, 2017, alleging that he was illegally confined to the special housing unit (SHU) in the Collins Correctional Facility (Collins) and the Orleans Correctional Facility (Orleans) from November 24, 2015 through February 12, 2016. The claim alleges that a notice of intention to file a claim was served on the Office of the Attorney General on February 25, 2016. The claim states that as a result of this confinement, claimant suffered mental anguish, pain and suffering, and lost wages from his program work in the Collins mess hall. He also alleges a bailment cause of action that his personal property was not returned to him by defendant following his release from SHU and that he values this property at $9,500. The claimant alleges that the claim accrued on February 12, 2016, the date his confinement in SHU ceased. The defendant moves to dismiss in lieu of an answer alleging that the wrongful confinement claim fails to state a cause of action. The defendant's motion does not contest jurisdiction or the manner of service of the notice of intention to file a claim or the claim itself. In addition, it does not seek dismissal of the bailment claim. Claimant opposes this motion.
Court of Claims Act § 11 (b) provides that a claim must specify (1) the time when the claim arose; (2) the place where the claim arose; (3) the nature of the claim; (4) the items of damage or injuries claimed to have been sustained; and (5) the total sum of damages claimed. It has been held that sufficient facts must be set forth in the claim to satisfy each of the pleading requirements and that these statutory requirements must be strictly construed (Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007]); Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]). It is also well established that the failure to meet these conditions deprives the court of subject matter jurisdiction that requires dismissal of the claim (Kolnacki, supra at 280-281). In order to sufficiently state a claim, the courts have held that the claim must provide enough information so as to "enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances, which is the guiding principle informing [Court of Claims Act] section 11 (b)" (Lepkowski, at 207, quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). The defendant is not to be required "to ferret out or assemble information that section 11(b) obligates the claimant to allege" (Lepkowski, supra at 208).
The defendant contends that the claim fails to meet the requirement that claimant adequately describe the nature of the claim. The claim states that it arises "from a tier III disciplinary ticket decision for 175 days 25 days [deferred]. The tier III ticket was fully administratively reversed on February 3, 2016 82 days later pursuant to section 254.8 chapter V. [O]n 2/12/16 I was released out of the Orleans Correctional Facility (SHU) S-Block [sic]." In the damages and injuries section of the claim, claimant provides further details stating that he was "wrongfully confined as a result of a flawed prison disciplinary proceeding which got administratively reversed [sic] after 82 days. During that time I was sent to mental health observation unit at the Five Points Corr Fac, the Attica Corr Fac and the Wende Corr Fac (MHU) observation units for 21 days total." Defendant argues that the claim does not adequately describe the nature of the claim as no details are provided about the misbehavior report or its charges, the prison disciplinary hearing, how the disciplinary hearing was "flawed" or how it was conducted in contravention of any rule or regulation causing claimant to suffer deprivation of his due process rights. As a result, defendant argues that the claim should be dismissed for failure to state a cause of action and based upon the State's absolute immunity.
In determining a pre-answer motion to dismiss for failure to state a claim pursuant to CPLR 3211(a) (7), "[t]he motion must be denied if from the pleadings' four corners 'factual allegations are discerned which taken together manifest any cause of action cognizable at law'" (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002] quoting from Polonetsky v Better Homes Depot, 97 NY2d 46, 54 [2001]). In addition, the allegations in the claim must be construed liberally and the claimant given every favorable inference (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Trump on the Ocean, LLC v State of New York, 79 AD3d 1325, 1326 [3d Dept 2010], lv denied 17 NY3d 770 [2011]). Finally, the court must accept as true the facts alleged in the claim and any submissions in opposition to the dismissal motion (511 W. 232nd Owners Corp., supra at 152). Accordingly, in order to defeat this motion and for this wrongful confinement cause of action to go forward, claimant must establish factual allegations exist for each of the four elements, including 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]). Construing the claim liberally and assuming the truth of the allegations stated therein, the Court finds that claimant has sufficiently pled the first three elements of a cause of action for wrongful confinement. The issue is whether the claim establishes the fourth element, that claimant's confinement to SHU was not otherwise privileged.
The Court of Appeals has held that employees of DOCCS, by filing misbehavior reports, commencing and conducting formal inmate disciplinary hearings, "act under the authority of and in full compliance with the governing statutes and regulations (Correction Law §§ 112, 137; 7 NYCRR Parts 250-254), 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]). A reversal of the disciplinary charges does not waive that immunity so long as the disciplinary proceedings were conducted consistent with the procedures provided in the relevant DOCCS rules and regulations (Arteaga v State of New York, supra; Davis v State of New York, 262 AD2d 887 [3d Dept 1999], lv denied 93 NY2d 819 [1999]). In addition, the violation of a rule or regulation alone is not a sufficient basis for a monetary award. Rather, the violation must have caused an actual injury or loss to the claimant (see e.g. Rivera v State of New York, UID No. 2006-028-008 [Ct Cl, Sise, P.J., Feb. 8, 2006]).
The Inmate Misbehavior Report attached to claimant's opposing affidavit (Exhibit A) reveals that the report was based upon information provided by multiple confidential sources who stated that claimant was using threats of violence and physical violence to extort other inmates and that these confidential sources feared for their safety because claimant had previously committed acts of physical violence. A review of the Hearing Disposition Rendered form, also attached to claimant's opposing affidavit in Exhibit A indicates that the hearing officer relied, in part, upon confidential testimony and confidential documents in finding that charges against claimant and a penalty were warranted. The relevant regulations provide that an inmate in a disciplinary hearing has the right to call witnesses on his behalf and if permission is not granted, the hearing officer must provide a written statement stating the reasons for the denial (7 NYCRR § 254.5).
The Witness Interview Notice provided to claimant and also included in Exhibit A states that he requested three witnesses, namely, inmates Richardson, Davis and Whitfield. The form indicates that the hearing officer decided to take inmates Richardson and Davis' testimony outside claimant's presence and that inmate Whitfield refused on tape to testify. The form also indicates that the hearing officer denied claimant permission to call the confidential informants, that they testified outside of claimant's presence, and claimant was not permitted to review their testimony. The hearing officer's notation indicates that he denied claimant's request to confront the confidential informants at his hearing based upon his "deep concern regarding personal and institutional safety in denying you access to the information in detail and identities. Your actions have instituted fear in others, and (illegible). Access is denied."
In his opposing affidavit, claimant alleges that his protected liberty interest and due process rights were violated by denying him testimony from the witnesses requested at the hearing. The administrative determination by the Commissioner reversing the decision of the Superintendent's hearing cites no reason or basis for this reversal (Exhibit B). Claimant's appeal form to the Commissioner is also included in Exhibit B and alleges four grounds for his appeal. The first ground cites to violations of the regulations relating to witnesses at a disciplinary hearing (7 NYCRR 253.5 and 254.5) and that claimant never received a refusal to testify form from his "four witnesses [he] asked to testify at [his] trial or hearing." Claimant alleges that his request was denied by the hearing officer and he identified the four witnesses as "inmates Black, Baldavis, Russo and the other inmate". He claims that he was not provided with a refusal to testify form including the signatures of these inmates confirming their refusal to testify. None of these witnesses' names were included by the hearing officer in the Hearing Disposition Rendered form or in the Witness Interview Notice. We simply do not know from this record, either by defendant's or claimant's submissions on this motion what the circumstances were as pertains to these witnesses and their proposed testimony, why they were not permitted to testify or why a witness refusal form was not executed by each of these witnesses and provided to claimant.
The procedural due process that an inmate is entitled to by regulation in a prison disciplinary hearing when a witness refuses to testify was recently addressed by the Court of Appeals in Matter of Cortorreal v Annucci, 28 NY3d 54 (2016), where it stated that when a requested witness refuses to testify and "the record does not reflect any reason for the . . . refusal to testify, or that any inquiry was made of him [or her] as to why he [or she] refused or that the hearing officer communicated with the witness to verify his [or her] refusal to testify, there has been a denial of the inmate's right to call witnesses as provided in the regulations (Matter of Barnes v LeFevre, 69 NY2d 649, 650 [1986])". The Court of Appeals also reiterated the requirement that the inmate be provided with a completed witness refusal form, stating that when a requested inmate witness steadfastly refuses to testify, a "witness refusal form signed by the inmate indicating the reason he [or she] would not testify adequately protect[s] petitioner's right" to call witnesses (Matter of Cortorreal v Annucci, supra at 59, citing to Matter of Jamison v Fischer, 119 AD3d 1306 [3d Dept.2014]; see also e.g. Matter of Tulloch v Fischer, 90 AD3d 1370, 1371[3d Dept 2011] ). In the instant claim, there is no record that the hearing officer provided claimant with a completed witness refusal form for any of these witnesses, which would be a violation of this regulation and the claimant's procedural right to call witnesses. As such, for purposes of this motion to dismiss, the Court finds that claimant has alleged facts, which if proven could form the basis for a finding that the absolute immunity applicable to a prison disciplinary hearing would not apply and sufficient to establish the fourth element of a cause of action for wrongful confinement. As recently held by the Fourth Department in Bottom v State of New York, 142 AD3d 1314 (4th Dept 2016), "[i]t is well settled that, where, as here, the actions of correction personnel have violated the due process safeguards contained in 7 NYCRR parts 252 through 254, those actions '[will] not receive immunity'" (Moustakos v State of New York, 133 AD3d 1268, 1269, quoting Arteaga v State of New York, supra at 221).
Accordingly, for the reasons stated the defendant's motion to dismiss, M-90226, is denied. Defendant is directed to file and serve a verified answer to the claim within forty (40) days of the filing of this Decision and Order.
September 21, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion of Assistant Attorney General Darren Longo, Esq., dated April 7, 2017 with annexed Exhibit A; and 2. Unsworn opposition to defendant's motion with annexed Exhibits A-D.