Opinion
# 2016-044-538 Claim No. 125761 Motion No. M-87993 Cross-Motion No. CM-88284
06-28-2016
RAFAEL RIOS v. THE STATE OF NEW YORK
RAFAEL RIOS, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Aaron J. Marcus, Assistant Attorney General
Synopsis
Court granted inmate claimant's motion for summary judgment on cause of action for wrongful confinement due to defendant's failure to timely determine the administrative appeal, where the length of confinement would have been substantially less absent the violation, thus implicating constitutional due process issues. Damages of $1,700 awarded. Defendant's cross motion for summary judgment to dismiss the claim denied.
Case information
| UID: | 2016-044-538 |
| Claimant(s): | RAFAEL RIOS |
| Claimant short name: | RIOS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125761 |
| Motion number(s): | M-87993 |
| Cross-motion number(s): | CM-88284 |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | RAFAEL RIOS, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Aaron J. Marcus, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 28, 2016 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim to recover damages due to his allegedly wrongful confinement in keeplock status as a result of a disciplinary hearing held while he was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility. Defendant State of New York (defendant) answered and asserted several affirmative defenses. Claimant now moves for summary judgment. Defendant opposes the motion and cross-moves for summary judgment dismissing the complaint. Claimant has not responded to the cross motion.
The Court previously dismissed defendant's third affirmative defense asserting claimant's comparative negligence and/or assumption of the risk (Rios v State of New York, Ct Cl, Nov. 16, 2015, Schaewe, J., Claim No. 125761, Motion No. M-86730).
Claimant was issued a misbehavior report on July 30, 2014 in which Correction Officer (CO) J. Wood charged him with violating Prison Disciplinary Rule 180.14 (Urinalysis Testing). The misbehavior report states that on that date at approximately 8:05 p.m., "[CO] J. Wood gave [claimant] an order to submit a urine specimen. . . . [Claimant] refused the order to submit a urine specimen. [Claimant] was placed on keeplock without incident." A Tier III disciplinary hearing was held before Hearing Officer Young-Arndt (the Hearing Officer). The Hearing Officer found claimant guilty of the charge and sentenced him to six months of keeplock confinement, six months loss of packages, commissary and phone privileges, and eight months loss of visitation. Claimant appealed the disciplinary determination arguing, among other things, that he was improperly denied his requested witness, Nurse Practitioner (NP) Northrop. On December 10, 2014, the disciplinary determination was reversed on administrative appeal because the misbehavior "report fail[ed] to advise [claimant] that a refusal constitutes a violation of facility rules and he may incur the same disciplinary disposition a positive urinalysis could have supported."
Claim, Exhibit A.
Affidavit of Rafael Rios, sworn to Jan. 25, 2016, in Support of Motion, Exhibit B at 2.
Claimant, as the proponent of a summary judgment motion, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853).
In order to establish a prima facie case of wrongful confinement - a "species" of the tort of false imprisonment (Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 1986]) - a claimant must show 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]). There is no dispute that defendant both intended to and did confine claimant, without his consent, in keeplock as a result of the August 5, 2014 disciplinary hearing. Therefore, the only remaining issue is whether that confinement was privileged.
It is well-settled that defendant is entitled to absolute immunity from claims for monetary damages relating to disciplinary hearings so long as it complies with the rules and regulations that govern such hearings (Arteaga v State of New York, 72 NY2d 212 [1988]). Notwithstanding the subsequent reversal of the underlying disciplinary charges, whether administratively or via a successful CPLR Article 78 proceeding, the immunity is retained as long as the disciplinary proceedings were conducted consistent with the procedures provided in the relevant DOCCS rules and regulations (id.; see Davis v State of New York, 262 AD2d 887 [3d Dept 1999], lv denied 93 NY2d 819 [1999]). Immunity may be lost if defendant violated its own rules and regulations in conducting the hearing or otherwise acted outside the sphere of privileged actions and deprived the claimant of a due process safeguard (Arteaga, 72 NY2d at 220-221). Nevertheless, 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]). In other words, claimant must show that if defendant had properly complied with its rules and regulations, the outcome of the hearing would have been different and claimant would not have been wrongfully confined or suffered damages (see Watson v State of New York, 125 AD3d 1064, 1065 [3d Dept 2015]; Lewis v State of New York, UID No. 2007-028-560 [Ct Cl, Sise, P.J., July 16, 2007]).
"Where an alleged regulatory violation implicates no constitutionally required due process safeguard, however, the State retains its absolute immunity from liability" (Bethune v State of New York, UID No. 2015-015-098 [Ct Cl, Collins, J., Dec. 7, 2015]).
Claimant asserts that his confinement in keeplock was not privileged due to defendant's violation of three of its rules and regulations governing disciplinary hearings. The Court will sequentially address the alleged violation of the each rule and/or regulation within the context of both parties' motions for summary judgment.
Claimant first argues that defendant violated 7 NYCRR 1020.4. Claimant was charged with a violation of Prison Disciplinary Rule 180.14 (7 NYCRR 270.2 [B] [26] [v]) which provides that "[a]n inmate shall comply with and follow the guidelines and instructions given by staff regarding urinalysis testing pursuant to the requirements of departmental Directive No. 4937 (7 NYCRR Part 1020). This includes providing a urine sample when ordered to do so." According to claimant, when he was requested to provide a specimen, he informed CO Wood that he was unable to do so. Pursuant to 7 NYCRR 1020.4 (d) (4), Wood allowed him three hours in which to provide a specimen. 7 NYCRR 1020.4 (d) (4) further provides that after three hours, the inmate's continued inability to provide a specimen "shall be considered . . . [a refusal] to submit the specimen. The inmate shall be informed that this refusal constitutes a violation of facility rules and that s/he may incur the same disciplinary disposition that a positive urinalysis result could have supported. The resultant misbehavior report shall indicate that the inmate was informed of the above." As claimant correctly notes, the misbehavior report does not contain the required statement. Accordingly, claimant has established that defendant violated its rules and regulations.
However, 7 NYCRR 1020.4 is not a regulation which governs the conduct of disciplinary hearings (cf. 7 NYCRR parts 250-254). Instead this regulation governs the manner in which a correction officer interacts with an inmate while attempting to obtain a urine specimen, conduct which clearly occurs outside of the disciplinary hearing process (see e.g. Crenshaw v State of New York, UID No. 2015-041-027 [Ct Cl, Milano, J., Mar. 25, 2015]). Accordingly, a violation of this regulation does not abrogate defendant's absolute immunity with respect to monetary claims relating to disciplinary hearings. Based upon the foregoing, defendant has retained its absolute immunity (Arteaga, 72 NY2d at 220-221) and claimant has failed to meet his burden of establishing entitlement to judgment as a matter of law. Claimant's motion for summary judgment is denied with respect to a cause of action for wrongful confinement based upon a violation of 7 NYCRR 1020.4.
Defendant contends that because this regulation does not govern the conduct of disciplinary hearings and its violation cannot form the basis for liability in this situation, the cross motion with respect to this regulation should be granted. The Court agrees. Because this regulation does not govern the disciplinary hearing process, defendant has retained its absolute immunity with regard to the conduct of the disciplinary hearing. Accordingly, claimant cannot recover for wrongful confinement based upon a violation of 7 NYCRR 1020.4 as a matter of law (Arteaga, 72 NY2d at 220-221), and defendant's cross motion for summary judgment with respect to a cause of action for wrongful confinement based upon the violation of this regulation is granted.
Claimant next contends that defendant violated its rules and regulations when the Hearing Officer refused to call NP Northrop as a witness. 7 NYCRR 254.5 (a) provides that an "inmate may call witnesses on his behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals." If the Hearing Officer denies permission to call a witness, the Officer must give the inmate a written statement containing the reasons, including the specific threat to safety or correctional goals (7 NYCRR 254.5 [a]). Although claimant has not submitted a copy of the disciplinary hearing transcript in support of his motion, defendant has provided a copy of the transcript attached as Exhibit F to its cross motion papers and the Court will consider this exhibit in determining claimant's motion. It was claimant's contention at his hearing that he was unable to provide a urine specimen because of his medical condition. He testified that he had significant problems urinating and that he was taking medication to help with urination. In order to establish this fact, claimant requested that the Hearing Officer call NP Northrup to address the issue.
A review of the hearing transcript reveals that the Hearing Officer did contact the medical department. Although it is unclear why NP Northrop did not testify, the Hearing Officer did advise claimant that she was able to secure the testimony of Registered Nurse Shannon Keeney who was in possession of claimant's medical records. Notably, claimant made no objection to Keeney testifying at that time. Keeney testified that claimant was taking a medication for his prostate condition which causes a decrease in urination. She further stated that claimant was also taking medications for both hypertension and diabetes and these medications cause an increase in urination.
The Court finds that the Hearing Officer did not deny claimant's request to call a witness, but instead obtained another medical witness who had access to claimant's medical records and testified concerning his medical conditions and medications. Claimant has failed to submit any evidence pertaining to the content of testimony that NP Northrop would have given at the hearing or how it would have differed from that of Keeney. Moreover, in light of Kenney's favorable testimony which provided support for his defense, claimant has not established that NP Northrop's purported testimony would have otherwise changed the outcome of the hearing. Claimant has failed to satisfy his burden of establishing his entitlement to judgment as a matter of law. Accordingly, his motion for summary judgment is denied with respect to a wrongful confinement cause of action based upon a violation of 7 NYCRR 254.5.
Claimant has admitted that Kenney's testimony was favorable to him, but he opines that it was not convincing to the Hearing Officer (Affidavit of Rafael Rios, sworn to Jan. 25, 2016, ¶ 6). Claimant does not indicate how or why NP Northrop's testimony would have been more convincing.
In its cross motion, defendant contends that even if NP Northrop had testified, the outcome of the hearing would not have changed and a cause of action based upon a violation of 7 NYCRR 254.5 should be dismissed. In support of its cross motion, defendant has submitted the affidavit of NP Northrop in which she states that if she had testified at claimant's disciplinary hearing, her testimony would have been virtually identical to that of Keeney. NP Northrop notes that at the time of the hearing, "claimant did suffer from medical conditions that affected his ability to urinate, but [he] was also on various medications that promoted urination." She further indicates that on the date the misbehavior report was issued (July 30, 2014), claimant was able to urinate on his own.
Affidavit of J. Northrop, sworn to Mar. 15, 2016 (defendant's Cross Motion for Summary Judgment, Exhibit K, ¶ 3).
Defendant has set forth evidence that NP Northrop's testimony would have been redundant to Keeney's testimony and the outcome of the hearing would not have been any different, and therefore has met its burden of establishing entitlement to judgment as a matter of law. Claimant has provided nothing further in opposition to create any question of fact. Accordingly, defendant's cross motion is granted and the cause of action for wrongful confinement based upon an alleged violation of 7 NYCRR 254.5 is dismissed.
Finally, claimant contends that defendant's failure to decide his administrative appeal within 60 days as required by 7 NYCRR 254.8 caused additional damages because if defendant had complied, he would have been released from his keeplock confinement sooner. As claimant notes, 7 NYCRR 254.8 provides that "[t]he commissioner or his designee shall issue a decision within 60 days of receipt of the appeal." Claimant's disciplinary determination was issued on August 5, 2014 and he asserts that he submitted his appeal at approximately that same time. Claimant's administrative appeal was not decided until December 10, 2014, clearly more than 60 days thereafter. The Court finds that defendant apparently violated 7 NYCRR 254.8, a regulation which governs the conduct of disciplinary hearings.
Defendant contends that because the 60-day time period of 7 NYCRR 254.8 is directory and the disciplinary determination was reversed, claimant has suffered no prejudice due to the delay and the State's cross motion should be granted. Although defendant is correct that the 60-day time period is directory (Matter of Austin v Fischer, 70 AD3d 1074, 1074-75 [3d Dept 2010]; see Matter of Goberdhan v Goord, 7 AD3d 897, 898 [3d Dept 2004]; Matter of Ortiz v Goord, 302 AD2d 830, 830-831 [3d Dept 2003]), claimant's additional time spent in keeplock confinement certainly qualifies as prejudice.
Although there is no constitutional right to an administrative appeal (see Matter of Amato v Ward, 41 NY2d 469, 473 [1977]; Matter of Wong v Coughlin, 138 AD2d 899, 901 [3d Dept 1988]), it is the sole method an inmate has to challenge a disciplinary determination. It is a right given the inmate by regulation for precisely the purpose illustrated here: to nullify the determination and, if still confined, to be released from confinement. In this instance, unlike those situations where violation of the rule does not warrant disturbing a determination of guilt (see Matter of Howard v Prack, 137 AD3d 1360 [3d Dept 2016]; Goberdhan, 7 AD3d at 897-898), the determination was administratively reversed. Defendant's failure to abide by the regulations it has itself established is the very definition of denial of due process: deprivation of liberty due to defendant's failure to comply with the regulations. There is no doubt but that claimant has been prejudiced by defendant's failure to timely determine the administrative appeal. Notably, claimant's statement that he filed the administrative appeal on August 5, 2014 has not been controverted by defendant. The administrative appeal should have been determined no later than October 4, 2014, and claimant should have been released from his keeplock confinement forthwith. The Court finds that the confinement was not privileged after October 4, 2014, and claimant was wrongfully confined for a period of 68 days (until December 10, 2014) beyond the date defendant should have issued its determination in accordance with the regulation. The Court grants claimant's summary judgment motion on the basis of defendant's failure to comply with 7 NYCRR 258.4. Because claimant has established his entitlement to judgment as a matter of law on a cause of action for wrongful confinement based upon this regulatory violation, defendant's cross-motion for summary judgment must be denied.
Liberty, in this instance, is defined as being free from the imprisonment in keeplock, which is undoubtedly a much more severe class of imprisonment than residing in a prison's general population.
In conclusion, 7 NYCRR 1020.4 is not a regulation which governs the conduct of disciplinary hearings and its violation cannot support a cause of action for wrongful confinement as a matter of law. Further, claimant's requested witness's testimony would not have changed the outcome of the disciplinary hearing and he cannot recover on this basis either. However, defendant did violate7 NYCRR 254.8, a regulation which does govern the conduct of disciplinary hearings, by not determining the administrative appeal within 60 days. Moreover, the length of claimant's confinement would clearly have been substantially less absent the violation which directly resulted in claimant's unauthorized retention in keeplock, implicating constitutional due process standards. Accordingly, claimant's motion for summary judgment based upon a violation of 7 NYCRR 254.8 is granted and claimant is awarded damages of $25.00 per day for the 68 days he was wrongfully confined, for a total of $1,700.00, as reasonable and fair compensation (see Makas v State of New York, UID No. 2011-048-502 [Ct Cl, Bruening, J., Sept. 30, 2011]). To the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2). Defendant's cross motion for summary judgment dismissing the claim is denied. Let judgment be entered accordingly.
June 28, 2016
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on claimant's motion and defendant's cross motion:
1) Notice of Motion filed on January 29, 2016; Affidavit of Rafael Rios, sworn to on January 25, 2016, and attached exhibits.
2) Notice of Cross Motion filed on March 18, 2016; Affirmation of Aaron J. Marcus, Assistant Attorney General, dated March 16, 2016, and attached exhibits. Filed papers: Claim filed on March 9, 2015; Verified Answer filed on April 8, 2015.