Opinion
# 2018-018-989 Claim No. 127619
12-20-2018
DARRYL SHELTON v. STATE OF NEW YORK
DARRYL SHELTON Pro Se BARBARA D. UNDERWOOD Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General
Synopsis
After trial, Claimant awarded $4,880 for wrongful confinement in the Special Housing Unit.
Case information
| UID: | 2018-018-989 |
| Claimant(s): | DARRYL SHELTON |
| Claimant short name: | SHELTON |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127619 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | DARRYL SHELTON Pro Se |
| Defendant's attorney: | BARBARA D. UNDERWOOD Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 20, 2018 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant seeks damages for wrongful confinement in the Special Housing Unit (SHU) at Cayuga Correctional Facility (Cayuga). A trial of this matter was held in the Syracuse District on October 24, 2018. Claimant was the sole witness.
Claimant testified that on July 24, 2013, there was an incident in the yard at Cayuga, and the inmates involved were taken to the infirmary and/or the SHU. He was not involved. The next day, Claimant was taken to the SHU. He was then issued a misbehavior report by Correction Officer (CO) Luziani for violating the prison standards for inmate behavior, specifically, rule 104.11 Violent Conduct and rule 104.13 Creating A Disturbance (7 NYCRR § 270.2 Rules 104.11, 104.13).
In the misbehavior report, according to Claimant, it was alleged that he wanted the "Crips" out of the facility because there were too many "Crips" in Cayuga. A Superintendent Hearing was held by Deputy Superintendent Rich. Claimant requested that the inmates involved in the disturbance be called as witnesses, but his request was denied because the hearing officer told Claimant that the incident in the yard and Claimant's charges were not related. Claimant testified that after the hearing officer adjourned the hearing for the day, he called witnesses outside of Claimant's presence. Inmate Edwards testified that Claimant was not involved in the incident and indicated that the fight was about a microwave. During the State's cross-examination, Claimant stated that after Edwards testified, the hearing officer had the correction officer get Claimant and bring him back to the hearing to hear Edwards' testimony. Edwards testified that Claimant had nothing to do with the incident in the yard.
The hearing officer also called CO Luziani to testify at the hearing. CO Luziani testified about the yard incident and relied upon a confidential informant who indicated that the fight occurred at Claimant's direction because he wanted the "Crips" out of the facility. CO Luziani could not identify when Claimant allegedly told these inmates to create a disturbance. Claimant testified that Hearing Officer Rich told him that he did not know when Claimant allegedly directed the fight in the yard, whether the confidential informant said two days, two weeks, or two months before the incident. According to Claimant, Hearing Officer Rich kept saying the misbehavior report was not related to the earlier disturbance so the testimony of the involved inmates was not needed, yet, Claimant argued that CO Luziani's testimony regarding the confidential informant contradicts that position. No other witnesses or evidence was presented at the hearing.
Claimant was found guilty and was given eight months in the SHU with loss of privileges. He served 30 days in the SHU at Cayuga and then was transferred to Southport, an "SHU facility" to serve the balance of his eight months punishment. He was released on March 25, 2014. Claimant filed an administrative appeal but the guilty determination was upheld on October 2, 2013. Thereafter, Claimant filed an Article 78 petition with the Appellate Division Third Department.
All quotes are from the trial testimony unless otherwise noted.
Almost eight months after Claimant's confinement ended, he was notified that on November 19, 2014, the tier hearing determination was reversed and all references and records were directed to be expunged. The reversal was based, without any substantive reason, on a recommendation from the Attorney General's Office. On November 21, 2014, senior counsel for the New York State Attorney General's Office notified the Clerk of the Appellate Division Third Department to advise that the Attorney General's Office would not be filing a response to the Article 78 proceeding because the administrative reversal of the hearing determination made it moot.
Exhibit 1.
Exhibit 1.
Exhibit 2.
The claim in this Court alleges that 7 NYCRR section 251.3.1 (b) was violated. That section reads:
"(b) The misbehavior report shall be made by the employee who has observed the incident or who has ascertained the facts of the incident. Where more than one employee has personal knowledge of the facts, each employee shall make a separate report or, where appropriate, each employee shall endorse his/her name on a report made by one of the employees."
Claimant contends that CO Luziani did not witness the incident and the report and the hearing decision were based solely on hearsay.
On cross-examination, Claimant testified that he raised numerous issues on his initial appeal including bias, denial of Claimant's request for witnesses to testify, and lack of substantial evidence to support the findings. He maintained that the Superintendent Hearing decision was based on hearsay only.
The State had no witnesses or exhibits.
Claimant spoke with Assistant Attorney General Ray Kyles before trial asking for disciplinary documents and hearing minutes. Claimant indicated it was explained to him that due to the expungement, those records no longer existed. --------
Law Applicable To The Facts:
The actions of correction officials in carrying out authorized disciplinary actions in the prison are immune from liability (Arteaga v State of New York, 72 NY2d 212, 219-220 [1988]). Where Department of Corrections and Community Supervision's (DOCCS) employees have conducted the disciplinary process in accordance with the governing statutes and regulations, their actions are considered discretionary conduct that is quasi-judicial in nature and absolutely immune from liability (Arteaga v State of New York, 72 NY2d 212, 214 [1988]; Bottom v State of New York, 142 AD3d 1314 [4th Dept 2016]). Even if the hearing officers's disciplinary findings are later reversed after an administrative appeal, the disciplinary decision may still be immune from liability (Arteaga, at 215; Loret v State of New York, 106 AD3d 1159 [3d Dept 2013]).
Yet, the immunity may be lost if a violation of a rule or regulation is exposed. Where DOCCS's employees act inconsistently with the governing rules and regulations, their actions will not be immune from liability if Claimant can establish a wrongful confinement cause of action (see Arteaga, 72 NY2d at 212; Moustakos v State of New York, 133 AD3d 1268, 1269 [4th Dept 2015]).
A cause of action for wrongful confinement requires Claimant to 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] cert denied sub nom., Schanbarger v Kellogg, 423 US 929 [1975]).
Usually, the first three factors are easily met and the issue is whether the disciplinary confinement was privileged. Disciplinary confinement is privileged if it was conducted in accordance with DOCCS's due process regulations (Lee v State of New York, 124 AD2d 305, 307 [3d Dept 1986]; Gittens v State of New York, 132 Misc 2d 402 [Ct Cl 1986]). Claimant must show that there was some violation of a due process regulation and demonstrate some injury - that the outcome of the hearing would have been different had the violation not occurred (Bottom v State of New York, 142 AD3d 1314; Moustakos, 133 AD3d at 1270).
It is Claimant's burden to demonstrate a violation of the rules and regulations that would remove the protection of immunity and to establish that he was denied due process at the hearing - that the disciplinary hearing was conducted in violation of the relevant rules and regulations - and, but for such due process violation, he would not have been confined (Miller v State of New York, 156 AD3d 1067, 1068 [3d Dept 2017]; Moustakos, 133 AD3d at 1270). Placement in the SHU "without the due process required pursuant to DOCCS rules and regulations, and in the absence of any other privilege, has routinely been held by the courts to be wrongful confinement." (Green v State of New York, UID No. 2017-044-018 [Ct Cl, Schaewe, J., Dec. 22, 2017]; see also Lopez v State of New York, UID No. 2015-041-005 [Ct Cl, Milano, J., Jan. 27, 2015]; DiRose v State of New York, UID No. 2002-029-217 [Ct Cl, Mignano, J., Sept. 30, 2002]; Nelson v State of New York, UID No. 2002-031-027 [Ct Cl, Minarik, J., July 25, 2002]).
Claimant alleges CO Luziani violated DOCCS's regulation 7 NYCRR § 251-3.1 [b], because he did not observe the incident or ascertain the facts of the incident from someone with personal knowledge of the facts.
Yet, even without witnessing the incident and relying upon hearsay accusations of an anonymous or confidential informant, if the record contained objective material that allowed the hearing officer to find that the information was reliable there was no violation of the rules (see Matter of Porter v Annucci, 156 AD3d 1430 [4th Dept 2017]; Matter of Cotto v Bautista, 252 AD2d 977 [4th Dept 1998]; Lamage v State of New York, 31 Misc 3d 1205 [A] [Ct Cl 2010]). A misbehavior report prepared with information from a confidential informant that has not been shown to have some basis for reliability has been found to violate 7 NYCRR section 251.3.1 (b) (Lamage, 31 Misc 3d 1205 [A]). Here, the only information available about the disciplinary proceedings is from Claimant. There was evidence that Claimant was not involved in the July 24, 2013 incident at the hearing from Inmate Edwards. The reliability of the information obtained from the confidential informant cannot be ascertained with the record expunged. The opaque reasons the Attorney General recommended the reversal of these disciplinary findings, which rendered the Article 78 review moot, coupled with the absence of any defense, leaves the State in control of the information necessary for Claimant to show a violation of the rules and regulations. Under these circumstances, the Court finds a presumption that the rules and regulations governing this disciplinary proceeding were violated. This removes any immunity (compare Ramos v State of New York, UID No. 2012-029-028 [Ct Cl, Mignano, J., Aug. 17, 2012]; DuBois v State of New York, 25 Misc 3d 1137 [Ct Cl 2009]).
The violation of the due process rules removes the absolute immunity of Arteaga but still requires that a wrongful confinement cause of action be established. Claimant has shown the first three elements of a wrongful confinement cause of action and it is the Defendant's burden to establish privilege (Ifill v State of New York, 149 AD3d 1287, 1289 [3d Dept 2017]; Moulton v State of New York, 114 AD3d 115, 120 [3d Dept 2013]). Defendant has not met that burden. Even without privilege, Claimant still bears the burden to show that the due process violation caused injury or, in other words, led to his confinement. In the absence of any documentation or transcripts of the disciplinary proceeding, the causal connection such as the reliability of the confidential informant, cannot readily be made. This Court has repeatedly found that where the record from the disciplinary hearing has been reversed and expunged on a more complete record than available at the time the wrongful confinement claim is heard, a presumption is permitted that the outcome of the hearing would have been different without the due process violations (DuBois, 25 Misc 3d 1137; Davidson v State of New York, UID No. 2015-018-649 [Ct Cl, Fitzpatrick, J., Oct. 13, 2015]; Melette v State of New York, UID No. 2013-009-029 [Ct Cl, Midey, J., Sept. 25, 2013]; Ramos v State of New York, UID No 2012-029-028 [Ct Cl, Mignano, J., Aug. 17, 2012]; Gaiter v State of New York, UID No. 2009-029-060 [Ct Cl, Mignano, J., Oct. 5, 2009]; Matter of Cotto v Bautista, 252 AD2d 977 [4th Dept 1998]; cf., Matter of Abdur-Raheem v Mann, 85 NY2d 113 [1995]).
Relying upon the foregoing, the Court finds Claimant has established that he was wrongfully confined. Accordingly, Claimant is awarded $20 per day for his eight months of wrongful confinement from July 25, 2013 until March 25, 2014 (244 days) or $43,880.00 [244 X $20). To the extent Claimant paid a filing fee, it may be recovered pursuant to Court of Claims Act section 11-a (2). All motions not otherwise determined are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
December 20, 2018
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims