Opinion
128850
12-18-2017
Neb MORROW III, Claimant, v. The STATE of New York, Defendant.
For Claimant: NEB MORROW III, PRO SE For Defendant: HON. ERIC T. SCHNEIDERMAN, New York State Attorney General BY: RAY A. KYLES, ESQ. Assistant Attorney General
For Claimant: NEB MORROW III, PRO SE
For Defendant: HON. ERIC T. SCHNEIDERMAN, New York State Attorney General BY: RAY A. KYLES, ESQ. Assistant Attorney General
Renée Forgensi Minarik, J.
The following papers, numbered 1 to 5, were read on motion by Claimant for summary judgment:
1. Claimant's Notice of Motion, filed August 21, 2017;
2. Claimant's Affidavit, sworn to July 25, 2017, with exhibits;
3. Affirmation of Ray A. Kyles, Esq., dated September 11, 2017, with exhibits;
4. Claimant's Unsworn "Reply Affidavit," dated September 19, 2017;
5. Filed Documents: Claim and Verified Answer.
This is Claimant's motion seeking summary judgment against Defendant relating to an illegal confinement cause of action. In his claim, filed on November 25, 2016, Mr. Morrow alleges that he was illegally confined for 118 days following a June 3, 2016 disciplinary hearing at Auburn Correctional Facility. That hearing related to an Inmate Misbehavior Report Claimant received on May 17, 2016, charging him with possession of a weapon. That weapon was found during a search of Claimant's cell. Claimant alleges that he was framed for retaliatory purposes by the correction officers who searched his cell.
Claimant argues that he is entitled to summary judgment because the search of his cell, during which the weapon was found, was conducted in violation of directive 4910, which permits an inmate to observe a search of his or her cell. Claimant alleges that he was removed from his cell and taken through a metal detector, which involved him being escorted down a hallway and out of view of his cell. He concedes that he was returned to his cell location and permitted to view the search of his cell, but he asserts that one of the officers entered his cell before he returned and, therefore, had an opportunity to plant the weapon.
Claimant alleges that the hearing officer who conducted his disciplinary hearing was clearly biased because the testimony of the correction officers who conducted the search confirmed that one of the correction officers entered his cell prior to Claimant returning from the metal detector scan. Claimant alleges that, although he quoted directive 4910 to the hearing officer, the hearing officer nonetheless found him guilty.
In any application for summary judgment, the moving party bears a heavy burden of establishing that he or she is entitled to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact ( Andre v. Pomeroy , 35 NY2d 361, 364 [1974] ; Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985] ). Summary judgment is a drastic remedy, one which should not be granted where there is any doubt as to the existence of a triable issue of fact ( Rotuba Extruders v. Ceppos , 46 NY2d 223 [1978] ; Sillman v. Twentieth Century-Fox Film Corp ., 3 NY2d 395 [1957] ). Issue-finding rather than issue-determination is the focus of the Court in reviewing the submissions ( id. at 404 ).
In this case, I note that the actions of prison personnel involving inmate disciplinary matters are generally quasi-judicial and, unless they exceed the scope of their authority or violate applicable rules, are afforded absolute immunity ( Arteaga v. State of New York , 72 NY2d 212 [1988] ; Bottom v. State of New York , 142 AD3d 1314 [4th Dept 2016] ). Further, the fact that the disposition from a disciplinary hearing is later reversed does not necessarily remove the matter from the blanket of immunity ( Arteaga v. State , 72 NY2d 212 ; Loret v. State of New York, 106 AD3d 1159 (3d Dept 2013).
For two reasons, I find that Claimant has failed to meet this burden. First, the alleged violation of directive 4910, although related to the issuance of the charges against Claimant, did not occur in the context of his disciplinary hearing. Nothing in the record before me demonstrates that Defendant violated any of its own rules or regulations in conducting Claimant's disciplinary hearing. Accordingly, the immunity set forth in Arteaga was not lost.
Further, Claimant is mistaken in his interpretation of directive 4910. Although Claimant did accurately quote that section in his submissions to the Court, he omitted that part of directive 4910 which indicates that an inmate's observation of a cell search is permissive, not mandatory ( Flemming v. State of New York , 120 AD3d 848 [3d Dept 2014] ).
Accordingly, Claimant's assertion (based upon his mistaken interpretation of directive 4910) that the hearing officer was biased because he ignored the violation of directive 4910 when Claimant pointed it out, is also without merit. Claimant's assertions that the weapon must have been planted by the correction officers who had access to his cell while he was away "presented a credibility issue for resolution by the Hearing Officer" (Matter of Johnson v. Fischer , 109 AD3d 1070, 1071 [3d Dept 2013] ).
Claimant's motion has necessitated the Court's review of the facts and records related to his claim. I note that CPLR 3212 (b) provides: "[i]f it shall appear that any party other than the moving party is entitled to summary judgment, the court may grant such judgment without the necessity of a cross-motion." Accordingly, the Court has the authority to search the record and grant summary judgment to a nonmoving party ( Dunham v. Hilco Constr. Co. , 89 NY2d 425 [1996] ; Diamond Roofing Co., Inc., v. PCL Props., LLC , 153 AD3d 1577 [4th Dept 2017] ). In this instance, I find that granting summary judgment to the nonmoving party is appropriate.
Not only did Claimant fail to demonstrate that a violation of directive 4910 occurred, even if it had, the immunities protecting Defendant's discretionary actions mentioned above were not lost. As stated in Flemming v. State , (120 AD3d 848 ):
"Directive No. 4910 (V) (C) (1) allows an inmate to observe a cell search when the inmate is removed from the cell for the search, unless a determination is rendered that such presence constitutes a safety or security risk' (Matter of Johnson v. Fischer , 109 AD3d 1070, 1071 [2013] ). Here, even assuming that the correction officers who searched claimant's cell abused their discretion by not allowing him to be present, the officers 'were nevertheless exercising a discretionary authority for which [defendant] has absolute immunity' ( Holloway v. State of New York , 285 AD2d 765, 766 [2001] )."
Accordingly, for the reasons stated above, it is hereby
ORDERED, that Claimant's motion for summary judgment is denied; and it is further
ORDERED, that upon searching the record, summary judgment be granted in favor of Defendant and the claim is dismissed in its entirety.