Opinion
# 2014-032-014 Claim No. 117625
04-25-2014
MILTON POWELL v. THE STATE OF NEW YORK
Milton Powell, Pro Se Hon. Eric T. Schneiderman, NYS Attorney General By: Douglas R. Kemp, Assistant Attorney General, Of Counsel
Synopsis
Case information
| UID: | 2014-032-014 |
| Claimant(s): | MILTON POWELL |
| Claimant short name: | POWELL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has sua sponte amended the caption to reflect the properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117625 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Milton Powell, Pro Se |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Douglas R. Kemp, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
SUMMARY
Claimant, Milton Powell, an inmate at Greenhaven Correctional Facility, proceeding pro se, commenced this claim alleging a violation of claimant's right to freedom of religion and unlawful confinement. Specifically, claimant alleges that employees of defendant infringed upon his religious rights by not allowing claimant to celebrate the Rastafarian new year on September 11, 2009, and for improperly confining him in keeplock following the filing of a misbehavior report against claimant.
FACTS
Claimant, a follower of the Rastafarian faith, testified that in September 2009, he was a volunteer cook at Coxsackie Correctional Facility.He was supposed to help prepare the meal celebrating the Rastafarian new year, however, the facility changed the date of the celebration from September 11, 2009, the actual date of the new year, to September 5, 2009. Claimant testified that it was a religious violation to celebrate the holiday prior to the actual day, stating that it had to be celebrated on the actual day or sometime thereafter. Accordingly, he stayed back at the block during a call out on September 5, 2009. Claimant initially testified that he was never given a direct order to go to the mess hall on September 5, 2009. However, on cross-examination, he admitted that he prepared his claim which states that when claimant was called to prepare the meal on September 5, 2009, he told the officer he was not going to do it and that he subsequently was issued a ticket. No witnesses testified on behalf of claimant other than claimant, himself.
. All references to testimony were obtained from the audio recording of the trial on November 4, 2013.
The only witness called to testify on behalf of defendant was Chaplain Grover T. Reddie, the Coxsackie Correctional Facility Chaplain. Chaplain Reddie testified that the Rastafarian new year is celebrated on September 11 of each year and that part of the celebration includes a special meal that requires special preparation. In 2009, the Rastafarian new year celebration was originally planned to be held on September 11 and claimant either volunteered or was assigned to cook the special meal (Exhibit 1). Chaplain Reddie testified that there were concerns amongst the Coxsackie Correctional Facility employees about having a celebration on the anniversary of the September 11 terrorist attacks because it is a day that people are mourning the loss of lives. Accordingly, in 2009, employees senior to Chaplain Reddie moved the celebration to September 5, 2009.
According to various documents entered into evidence at trial, including the Inmate Misbehavior Report of September 5, 2009, on the subject date, Correction Officer B. Ingraham called the division D-2 to have claimant sent to the kitchen to prepare the holiday meal as listed in the facility event packet. Claimant refused to follow the direct order by the division. As a result, charges were brought against him for interfering with an employee and for refusing a direct order. Claimant was moved to keeplock and remained there from September 5, 2009 until September 10, 2009, the date of claimant's disciplinary hearing. The hearing officer determined that claimant was not guilty and claimant was immediately released from keeplock.
Claimant alleges that defendant violated his religious rights by not allowing claimant to celebrate the Rastafarian new year on September 11, 2009, and for improperly confining him in keeplock following the filing of a misbehavior report against him. LAW/ANALYSIS
Violation of Religious Freedom
Freedom of religion is protected by the First Amendment of the United States Federal Constitution, and Article 1 section 3 of the New York Constitution. It has been extended to inmates pursuant to Correction Law § 610.
Correction Law § 610 (3) provides, in relevant part, that "[i]n case of a violation of any of the provisions of this section any person feeling himself aggrieved thereby may institute proceedings in the supreme court of the district where such institution is situated." Accordingly, to the extent claimant may be asserting a cause of action for violation of Correction Law § 610 (1), the Court of Claims has no jurisdiction and such a cause of action must be dismissed.
To the extent claimant is alleging a cause of action based upon a violation of the Federal Constitution, it must also be dismissed. It is well settled that the State is not a "person" amenable to suit under 42 USC § 1983 (Brown v State of New York, 89 NY2d 172, 184-185 [1996]).
Finally, to the extent claimant is alleging a cause of action based upon a violation of the New York State Constitution, it also must be dismissed. A cause of action alleging a violation of the State Constitution may give rise to a tort cause of action in the Court of Claims only where it is necessary to ensure the full realization of the claimant's constitutional rights (Brown v State of New York, 89 NY2d 172 [1996]; Martinez v City of Schenectady, 97 NY2d 78 [2001]). In the present case, claimant had alternative avenues of redress available, including an action or proceeding in the Supreme Court pursuant to Correction Law § 610.
Based upon the foregoing, claimant's cause of action alleging a violation of his religious freedom must be dismissed.
Wrongful Confinement
The elements of a cause of action for unlawful confinement are: (1) defendant intended to confine the plaintiff; (2) claimant was conscious of the confinement; (3) claimant did not consent to the confinement; and (4) the confinement was not otherwise privileged (see Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]; accord Parvi v City of Kingston, 41 NY2d 553, 556 [1977]; Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). False imprisonment is also known as wrongful confinement (Donald v State of New York, 17 NY3d 389 [2011]). An action by a government official is said to be privileged when it is made pursuant to lawful authority or performed under the color of law or regulation (Collins v Brown, 129 AD2d 902, 904 [3d Dept 1987]; Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]). Defendant, not claimant, bears the burden of proving that a confinement was privileged (Ifill v State of New York, UID No. 2013-039-371 [Ct Cl, Ferreira, J., June 12, 2013]; Nelson v State of New York, 20 Misc 3d 1125[A], [Ct Cl 2008], affd67 AD3d 1142 [3d Dept 2009]; see also Gonzalez v State of New York, 110 AD2d 810, 812 [2d Dept 1985]; appeal dismissed 67 NY2d 647 [1986]; Sanabria v State of New York, 29 Misc 3d 988, 991-992 [Ct Cl 2010]). Pursuant to 7 NYCRR 251-5.1 (a), "[w]here an inmate is confined pending a disciplinary hearing or superintendent's hearing, the hearing must be commenced as soon as is reasonably practicable following the inmate's initial confinement pending said disciplinary hearing or superintendent's hearing, but, in no event may it be commenced beyond seven days of said confinement without authorization of the commissioner or his designee."
Applying these principles to the facts of this case, the Court concludes that claimant has failed to meet his burden to prove his claim by a preponderance of the credible evidence. The first three elements required to prove unlawful confinement are undisputed by either party. The only element for the Court to determine is whether the confinement was otherwise privileged. The Court concludes that it was so privileged.
At trial, claimant initially testified that he never received a direct order to prepare the meal on September 5, 2009, because the correction officer called the wrong housing division. However, when he was asked during cross-examination about the statements he made on his claim, he conceded that he spoke to a correction officer on September 5, 2009, and refused to assist with the meal's preparation. The Court concludes that claimant understood, at a minimum, that he was expected to prepare the holiday meal on September 5, 2009, and that he refused to do so. Accordingly, the Court determines that defendant had the authority to file charges against claimant for interfering with an employee and violating a direct order, and the authority to restrictively confine him pending a hearing.
The Court further concludes that claimant failed to offer any proof showing that the five days between the subject incident and the hearing was unreasonable. To the contrary, the Court determines that the time frame was reasonable and in accordance with the requisite seven day time period provided by 7 NYCRR 251-5.1.
Based upon the foregoing, the Court determines that claimant's confinement was imposed under the color of law and is privileged. Therefore, his cause of action for unlawful confinement must be dismissed.
CONCLUSION
The Court, upon review of the documentary evidence, oral testimony and the observance of the demeanor of the witnesses, dismisses the claim. All motions not heretofore addressed are denied. The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim.
Let judgment be entered accordingly
April 25, 2014
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims