Opinion
# 2017-044-016 Claim No. 121553
11-21-2017
EZIKEL ROSS v. THE STATE OF NEW YORK
EZIKEL ROSS, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General
Synopsis
After trial, defendant found liable for wrongful confinement where inmate claimant's request to have hearing officer review medical records (which would have shown claimant never signed a contract for physical therapy treatment - violating the contract was the disciplinary charge) was denied without reason, and his request for a material witness was also denied without basis. Defendant did not contest that claimant never signed such a contract.
Case information
| UID: | 2017-044-016 |
| Claimant(s): | EZIKEL ROSS |
| Claimant short name: | ROSS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121553 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | EZIKEL ROSS, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 21, 2017 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim to recover damages for his allegedly wrongful confinement in keeplock as a result of a misbehavior report issued March 27, 2012 while he was in the custody of the Department of Corrections and Community Supervision at Elmira Correctional Facility (Elmira). Defendant State of New York (defendant) answered and asserted several affirmative defenses. A trial in this matter was conducted by video conference on November 16, 2017, with the parties appearing at Elmira, and the Court sitting in Binghamton, New York.
At trial, claimant testified that on March 26, 2012, Correction Officer (CO) C. Maynard issued a misbehavior report charging claimant with violation of Prison Disciplinary Rule 106.10 (failure to obey an order), on the basis that claimant refused to go to his mandatory physical therapy appointment at Five Points Correctional Facility. Claimant said that the reason he would not go to the appointment was because his hand and wrist were injured, his arm was in a sling, and Maynard was insisting on handcuffing both hands. Claimant said that he told Maynard he had no contract requiring him to attend the physical therapy, but he was charged with the offense nonetheless. He stated that he put in a sick call slip and spoke to Nurse Hall the next day, at which time Hall indicated that claimant was correct in his assertion that claimant's medical records did not contain a signed contract requiring him to attend physical therapy.
Inmates routinely sign contracts agreeing to attend physical therapy at other facilities. Presumably defendant wants to discourage refusal to participate at the last moment.
A Tier II Disciplinary Hearing was held on March 29, 2012. At trial, claimant testified that he requested both that Hall be called as a witness, and that any contract requiring him to attend physical therapy be produced. Claimant testified that he told Hearing Officer Schornstheimer (the Hearing Officer) that because he had never signed a contract to go to physical therapy, he was not required to go and thus did not violate an order when he refused to go on March 26, 2012. Claimant further said that he explained to the Hearing Officer that immediately after he received the misbehavior report, he spoke with the nurse assigned to sick call. The nurse reviewed his medical records and verified that he had never signed a contract for therapy. Claimant unequivocally asserted that he requested that Hall be called as a witness, and that any contract requiring him to attend physical therapy be produced. Claimant stated that instead of calling claimant's witness, the Hearing Officer called the medical department and asked that a copy of the contract signed by claimant be produced. The hearing transcript indicates that claimant's medical records could not be located. The Hearing Officer called and spoke by telephone to a Nurse Condamne, who had no knowledge of whether claimant signed a contract. Nurse Condamne read a standard contract into the record, but it is apparent from her testimony that claimant had not signed the contract she was reading. Claimant said that he was never provided with an explanation of why his requested witness was not called, or why any signed contract was not produced. Notably, at trial defendant acknowledged that no such contract existed.
Claimant's Exhibit 2 at 6.
Id. at 7.
The hearing transcript indicates that the Hearing Officer found that even though claimant stated he could not wear handcuffs because his arm was in a sling, claimant did not have anything wrong with his wrist area. The Hearing Officer noted that although claimant's fingers were pinned, there were no medical records containing any handcuff orders. Claimant was found guilty of the charge and sentenced to 30 days confinement in keeplock as well as 30 days loss of commissary, phone, and package privileges. Claimant stated that after the Superintendent conducted a discretionary review of the determination, the guilty determination was reversed, and the Superintendent ordered that the matter be expunged from claimant's records.
Id. at 9.
Claimant's Exhibit 1 at 11.
Claimant testified he appealed the determination, but when he inquired about the status, the disciplinary office indicated that it never received an appeal. Claimant said he then asked the Superintendent to conduct a discretionary review.
Claimant's Exhibit 1 at 4.
Claimant rested his case at the close of his testimony, and defendant rested as well. The Court reserved determination.
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). However, the loss of immunity itself "does not result in absolute liability . . . because claimant is still required to prove the merits of his [or her] claim" (Turley v State of New York, UID No. 2010-032-504 [Ct Cl, Hard, J., June 4, 2010]). In other words, " '[w]here, as here, a prison inmate contends that he was wrongfully confined as a result of the flawed prison disciplinary proceeding, once the absolute immunity is removed by showing that the governing rules and regulations were not followed, he . . . may recover damages if he . . . is able to prove the traditional elements of the tort of [unlawful confinement]: (1) that the confinement was intentional; (2) that [c]laimant was conscious of the confinement; (3) that [c]laimant did not consent to the confinement; and (4) that the confinement was not otherwise privileged' " (Moustakos v State of New York, 133 AD3d 1268, 1269 [4th Dept 2015] quoting Kilpatrick v State of New York, UID No. 2001-013-031 [Ct Cl, Dec. 2001, Patti, J.]).
"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]).
An inmate's right to call witnesses at a prison disciplinary hearing is conditional (see Matter of Kalwasinski v Venettozzi, 151 AD3d 1417, 1418 [3d Dept 2017]), i.e. 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" (7 NYCRR 254.5 [a]; see Matter of Cortorreal v Annucci, 28 NY3d 54, 58 [2016]). While the hearing transcript is substantially incomplete, the Court credits claimant's testimony that he requested that Nurse Hall be called as a witness on his behalf. It is clear that the testimony of Nurse Hall would have been material and would not have been redundant. It does not appear - nor has any evidence been introduced - that calling Hall would have jeopardized institutional safety or correctional goals.
Although the hearing transcript does not contain claimant's request that Hall be called as a witness, the tape was of very poor quality and large amounts of the proceedings cannot be discerned. Counsel for defendant acknowledged that it was certainly possible that claimant had requested Hall's presence.
Additionally, an inmate has the right to offer documentary evidence on his behalf in a disciplinary hearing (7 NYCRR § 253.6 [c]). The failure to allow an inmate to do so is a clear violation of due process (see Matter of Roach v Goord, 46 AD3d 988 [3d Dept 2007]). In this instance, the Hearing Officer refused to adjourn the hearing to allow claimant's medical record to be located and searched for a copy of the contract claimant was alleged to have breached. If claimant's medical record had been searched, it is apparent that no such contract would have been found, and the outcome would have been different. The Hearing Officer put forth no good-faith basis for refusing to adjourn the hearing to locate the medical record. This denial clearly constituted a violation of claimant's right to due process, and defendant's absolute immunity was abrogated.
Claimant's Exhibit 2 at 7. --------
In this instance, defendant has (appropriately) not contested that it was in error in placing claimant in keeplock, acknowledging that there was no contract in claimant's records which required him to attend physical therapy. The confinement was clearly not privileged, as claimant's requests for Hall to testify and for his medical record to be presented were both denied. No good-faith basis for the denial has been presented. Accordingly, defendant is not entitled to immunity. Moreover, it is readily apparent that claimant would have prevailed in the hearing if the Hearing Officer had complied with his requests. Having established all the elements of a cause of action for wrongful confinement, claimant has demonstrated his entitlement to judgment as a matter of law. Claimant is therefore awarded $30.00 per day for 30 days of wrongful confinement, for a total of $900.00, 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).
November 21, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims