Opinion
# 2015-018-653 Claim No. NONE Motion No. M-86931
11-04-2015
ROBERT RIVERA v. STATE OF NEW YORK
ROBERT RIVERA Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of Counsel
Synopsis
Claimant's motion for permission to file a late claim is denied, and his motion to proceed as a poor person is denied as moot.
Case information
| UID: | 2015-018-653 |
| Claimant(s): | ROBERT RIVERA |
| Claimant short name: | RIVERA |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-86931 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | ROBERT RIVERA Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | November 4, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant brings a motion seeking permission to file a late claim for wrongful confinement and for permission to proceed as a poor person. Defendant opposes the late claim application.
The proposed claim seeks damages of $50 per day for 75 days of alleged wrongful confinement when Movant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), was held in the Special Housing Unit (SHU) at Riverview Correctional Facility. Movant was issued a misbehavior report for unauthorized legal assistance in violation of Rule 180.17, and charged with possessing another inmate's criminal information in violation of Rule 113.27. Movant alleges that the misbehavior report failed to give any description of the alleged legal documents in his possession and the Hearing Officer conducting the Superintendent's Hearing denied his request for witnesses.
Movant was found guilty of the misbehavior charge of violating Rule 113.27 on June 20, 2014, and was given a penalty of four months in the SHU. He appealed the findings and on August 21, 2014, the disciplinary disposition was modified, reducing Movant's time in the SHU from four months to 75 days, finding the initial penalty was too severe. Movant brought an Article 78 proceeding which was transferred to the Appellate Division, Third Department. Movant alleges that the DOCCS never filed a brief opposing Movant's Article 78 petition, but instead, administratively reversed the disciplinary findings by the Director of Special Housing/Inmate Disciplinary Program on May 6, 2015, before the Article 78 proceeding was heard.
Court of Claims Act § 10 (6) allows a claimant who has failed to properly serve a notice of intention or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act § 10 to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act § 10 [6]). Movant's motion is timely (Court of Claims Act § 10 [6]; Ramirez v State of New York, 171 Misc 2d 677 [Ct Cl 1997]).
To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act section 10 (6) and any other relevant factors. It is a balancing of all of the factors by the Court, rather than the presence or absence of any one, which supports the discretionary decision to grant the application (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys. 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]).
The first factor is whether the delay in filing the claim is excusable. Movant argues that he delayed filing the claim because he pursued an administrative appeal and an Article 78 proceeding after being released from the SHU. A wrongful confinement claim, however, accrues upon release from confinement (Ramirez, 171 Misc 2d at 680), and Movant's belief that he needed to await the administrative determination of his appeal or his Article 78 proceeding equates to ignorance of the law, which is not a valid excuse (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002] lv denied 99 NY2d 589 [2003]; Matter of Thomas v State of New York, 272 AD2d 650 [3d Dept 2000]).
Notwithstanding the rejection of Movant's excuse for not timely serving a notice of intention or timely filing and serving a claim, the State did have timely notice of the essential facts and an opportunity to investigate the underlying claim. Movant raised the same issues in his administrative appeal to the Superintendent and in the Article 78 proceeding which was brought by Order to Show Cause on September 11, 2014, within 90 days of his release from the SHU in August 2014. The factors of notice, opportunity to investigate, and the risk of substantial prejudice to Defendant all weigh in Movant's favor.
The next factor, whether the claim appears to be meritorious, is often the most compelling for the granting or denial of any late claim application. To meet this factor, the proposed claim must not be patently groundless, frivolous, or legally defective, and upon consideration of the entire record, there must be cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth. 92 Misc 2d 1,11 [Ct Cl 1977]). If this low threshold for merit cannot be met, it would be futile for the Court to grant the application even if all of the other factors have been shown (see Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).
A cause of action for wrongful confinement, requires a claimant to ultimately 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]). As is often the case, whether the confinement is privileged is the primary issue. Confinement is "privilege[d] to the extent that it was [imposed] under color of law or regulation." (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]).
Here, Movant asserts that the Hearing Examiner failed to comply with the applicable regulations, or in other words, the confinement was not privileged. Defendant, in opposition, submits that the misbehavior findings were administratively reversed only because DOCCS failed to retain copies of all of the necessary documents to defend the Article 78 proceeding. Defendant argues that Movant was appropriately found guilty of being in possession of documents related to another inmate's crime in violation of Department of Corrections and Community Supervision Rule 113.27 ([7 NYCRR § 270.2, Rule 113.27), based upon the papers confiscated and the testimony of Movant, and civilian employee Monnet. Included with Defendant's motion response are: (Exhibit A) a copy of page 1 of the misbehavior report; (Exhibit B) the hearing record sheet, and the hearing disposition sheet; (Exhibit C) the Witness Interview Notice forms denying Movant permission to call the six witnesses he sought to have testify at his hearing and the reasons for the denials; (Exhibit D) the August 21, 2014, Memorandum reducing the penalties imposed at the June 20, 2014 Superintendent's Hearing, and setting forth the reasons for the modification; (Exhibit E) a memo from Riverview Inmate Grievance Committee indicating that the misbehavior report was destroyed as of November 14, 2014; (Exhibit F) the administrative reversal of the findings from the June 20, 2014, Superintendent's Hearing and the memorandum setting forth the reasons for the reversal; (Exhibit G) copy of a written transcript dated November 7, 2014, of the Superintendent's Hearing on June 20, 2014. Although Movant wrote to the Court objecting to an adjournment of the motion, he did not object to Defendant's exhibit submissions or dispute the accuracy of those documents.
Movant's letter dated August 4, 2015.
Movant sent an untimely letter dated October 28, 2015, to the Court responding to Defendant's opposition to the motion, but did not object or dispute Defendant's exhibits.
Addressing Movant's alleged violations of the rules in support of his wrongful confinement claim, he first asserts that the misbehavior report with which he was served failed to comply with the requirements 7 NYCRR section 251-3.1 (c) by failing to identify what "papers" and "photos" were considered contraband. That regulation requires that misbehavior reports include, as relevant here; (1) a written specification of the particulars of the alleged incident of misbehavior involved; (2) a reference to the inmate, the rule book number allegedly violated, and a brief description of the rule; and the date time and place of the incident (7 NYCRR section 251-3.1 [c]). A review of the misbehavior report provided by Defendant reflects that it provides all of the information required by this section of the regulation. Moreover, a review of the transcript of the Superintendent's Hearing indicates that Movant was fully aware and advised of what papers and photos were considered contraband and formed the basis for the misbehavior report (Cf., Matter of Quezada v Fischer, 85 AD3d 1462 [3d Dept 2011]; Matter of Martin v Goord, 37 AD3d 961 [3d Dept 2007]).
See Defendant's Exhibit G, pages 8-11.
Movant also alleges that Defendant violated 7 NYCRR sections 250.2 (d), (e), and (f). Those sections provide under the heading, "General policies on discipline of inmates,"
[d] All control of inmate activities, including disciplinary action, must be administered in a completely, fair, impersonal and impartial manner and must be as consistent as possible (given the need for individualized decisions);
[e] Disciplinary measures should not be overly severe. A sound disciplinary program relies upon certainty and promptness of action rather than severity;
[f] Disciplinary action must never be arbitrary or capricious, or administered for the purpose of retaliation or revenge.
Those sections of the rules and regulations governing inmate disciplinary procedures involve discretionary matters rather than ministerial requirements. Whether the hearing was overall conducted fairly, in an impersonal or impartial manner, or whether the disciplinary action was arbitrary or capricious are determinations that involve reviewing the Hearing Officer's underlying administrative determination and this Court lacks the jurisdiction to engage in such a review (Green v State of New York, 90 AD3d 1577 [4th Dept 2011] lv denied 18 NY3d 901 [2012]; see generally Matter of Brisman v Fischer, 92 AD3d 1060 [3d Dept 2012]).
Movant also alleges, as part of his proposed claim and motion submissions, that he was not permitted to hear all available evidence against him or to respond to that evidence and his request for material witnesses was denied without "penological justification" in violation of 7 NYCRR section 254.5.
Section 254.5 [a], provides that an inmate may call witnesses on his behalf as long as their testimony is relevant, not redundant, and will not jeopardize institutional safety or correctional goals. If witnesses are denied, the inmate must be given a written statement setting forth the specific reasons for the denial. All witnesses shall be allowed to testify in the presence of the inmate unless the Hearing Officer determines that will create a risk to the safety or goals of the correctional facility. If a witness does not testify in the presence of the inmate, the recording of that witness' testimony must be made available to the inmate, unless that, too, would create a risk to safety or the correctional facility goals (7 NYCRR § 254.5 [a]).
Defendant's submissions establish that Movant was present for the testimony of all of the witnesses and had the opportunity to ask them questions. Moreover, the Hearing Officer inquired on the record as to why Movant wanted the witnesses he was requesting to testify, explained his denial of the request for those witnesses, and provided the denials in writing using Form 2176. In essence, the Hearing Officer found the testimony of the requested witnesses was not relevant to the misbehavior charges Movant faced. Movant's argument that two of the witnesses were needed in order to establish the authenticity of the "papers" found in his possession, is belied by the hearing transcript which reflects that Movant did not dispute that he had another inmate's papers. The Hearing Officer complied with the ministerial requirements of the regulation, and this Court will not second guess whether the testimony of those witnesses was in fact relevant to Movant's defense.
Defendant's Exhibit C.
--------
Finally, even if the Court were to find that these regulations were violated, Movant could not establish that the violations contributed to the findings of misbehavior against him, given his admission to possession of the documents he was charged with having in violation of 7 NYCRR) section 270.2, Rule 113.27 during the hearing as evident from the transcript.
Defendant's submissions have shown that Movant's asserted violations of the disciplinary regulations lack potential merit. As a result, this factor does not weigh in favor of granting Movant's application.
The final factor is whether Movant has any other available remedy. Given the circumstances of Movant's proposed claim, he has no other available remedy.
Accordingly, after considering all of the factors and submissions the Court DENIES Movant's motion for permission to file a late claim. Movant's application for permission to proceed as a poor person is DENIED as moot.
November 4, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affidavit of Robert Rivera, in support, sworn to May 12, 2015, with exhibits attached thereto. 3) Affirmation of Thomas Trace, Esquire, in opposition, with exhibits attached thereto.