Opinion
# 2011-048-505 Claim No. 108118
11-02-2011
SHOMO v. THE STATE OF NEW YORK
Synopsis
After a trial in a Claim alleging false imprisonment, Defendant established that Claimant's confinement pending a hearing on certain disciplinary charges was privileged and, accordingly, Claimant failed to meet his burden of proving his Claim by a preponderance of the evidence. Case information
UID: 2011-048-505 Claimant(s): JOSE SHOMO Claimant short name: SHOMO Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant The caption has been amended to reflect the State of New name) : York as the only properly named defendant. Third-party claimant (s): Third-party defendant(s): Claim number(s): 108118 Motion number(s): Cross-motion number (s): Judge: GLEN T. BRUENING Claimant's attorney: JOSE SHOMO, Pro Se HON. ERIC T. SCHNEIDERMAN Defendant's Attorney General of the State of New York attorney: By: Joan Matalavage, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: November 2, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Jose Shomo seeks to recover damages for mental anguish and suffering, and loss of packages, commissary, telephone and recreation privileges which he claims to have sustained while an inmate at Coxsackie Correctional Facility under the supervision of the Department of Correctional Services ("DOCS"). He has alleged false imprisonment for a period of confinement in excess of the confinement imposed upon him as a penalty for violating prison rules. A trial on the claim was held at Coxsackie Correctional Facility on June 16, 2011. Claimant testified on his own behalf, and Eric Gutwein, a DOCS Commissioner's Hearing Officer, testified on behalf of the Defendant.
DOCS is now known as the Department of Corrections and Community Supervision (DOCCS). Inasmuch as the Claim relates to acts that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.
Claimant testified that on April 7, 2001, he was issued a misbehavior report for violating prison rules and immediately confined to keeplock status pending a hearing on the charges. According to Claimant's Exhibit 1, a one-page incident detail report provided by DOCS in discovery, the misbehavior report charged Claimant with Tier III violations of harassment, giving false statements or information, refusing a direct order, making threats, and self-inflicted bodily harm. Claimant further testified that on April 20, 2001, a hearing was held on the charges contained in the misbehavior report, he was found guilty of those charges, and he received a penalty of 90-days confinement and loss of certain privileges. Claimant stated that he served the 90-days confinement, but was erroneously required to serve additional days of confinement corresponding to the time he spent in prehearing confinement. He argues that DOCS is required to credit the prehearing confinement toward his penalty of 90-days confinement.
Claimant also testified that he was found guilty and penalized as a result of four subsequent misbehavior reports causing him to remain confined for more than 300 days, as was originally alleged in his Claim filed with the Court. However, Claimant testified that the error causing him to be falsely imprisoned occurred in the calculation of his confinement relating to the April 7, 2001 misbehavior report. Claimant testified that his dispute relates only to the calculation of his initial keeplock sentence, and that the subsequent penalties were properly calculated. Accordingly, the Court concludes that it is unnecessary to address the other periods of confinement set forth in the Claim.
On cross-examination, Claimant agreed that on April 7, 2001, prior to the issuance of the misbehavior report in dispute, he was being held in isolation in the medical unit for his refusal to take a tuberculosis test. However, he stated that his status changed on April 7th to keeplock status as a result of the misbehavior report, and he lost privileges. That he was confined following the misbehavior report, and not released pending the hearing, is confirmed by Claimant's Exhibit 1. Hearing Officer Gutwein, who reviewed Claimant's disciplinary record in preparation for trial, testified that the misbehavior report indicates that Claimant was confined to keeplock status as a result of the violations that gave rise to the misbehavior report, and that it is standard practice for DOCS to confine an inmate who is a patient in the medical unit to keeplock status by confining the inmate in the hospital room or another appropriate room.
Claimant's prehearing confinement consisted of 14 days that began on April 7th and continued through April 20, 2001. Hearing Officer Gutwein testified that, according to DOCS records stored on the computer in the normal course of business with which he was familiar, the penalty imposed upon Claimant as a result of the April 20, 2001 hearing included seven days of prehearing confinement on April 14, 15, 16, 17, 18, 19 and 20, 60-days confinement in the Special Housing Unit, 30 days in keeplock status, and loss of certain privileges. He further testified that, pursuant to its policies, DOCS had the discretion to impose prehearing confinement following the issuance of a misbehavior report, impose the penalty after a hearing, and include prehearing confinement as part of the penalty.
According to Hearing Officer Gutwein's testimony, which was not refuted by Claimant and which the Court fully credits, seven days of Claimant's prehearing confinement was accounted for because it was specifically imposed as part of his penalty. Thus, the only portion of Claimant's prehearing confinement not accounted for in the penalty is the first seven days of his prehearing confinement on April 7, 8, 9, 10, 11, 12, and 13.
In an opinion that clarified the respective elements necessary to prove the two "kindred" but separate torts of false imprisonment and malicious prosecution, the Court of Appeals continued to recognize a cause of action sounding in false imprisonment against the State for unlawful arrests conducted by State Police Officers, in order to protect "the personal interest of freedom from restraint of movement" (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). As the Court stated,
To establish this cause of action the plaintiff must show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged(Broughton v State of New York, 37 NY2d at 456 [citations omitted]).
Where the imprisonment is extrajudicial, a presumption arises that the imprisonment is unlawful and the burden is on the Defendant to prove legal justification as an affirmative defense (see Hollender v Trump Vil. Coop., 58 NY2d 420, 425 [1983]; Broughton v State of New York, 37 NY2d at 458). In such cases, "[t]he existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the claim" (Martinez v City of Schenectady, 97 NY2d 78, 85 [2001] [citation omitted]). The same elements applied in Broughton have been applied in claims against the State alleging false imprisonment within State correctional facilities (see e.g. Middleton v State of New York, 54 AD2d 450 [3d Dept 1976], affd 43 NY2d 678 [1977]). Within the State correctional facility setting, where the freedom of restraint is already diminished, the tort is often referred to as "wrongful confinement" or "excessive confinement" (see e.g. Nelson v State of New York, 20 Misc 3d 1125 (A), affd 67 AD3d 1142 [3d Dept 2009]). In these cases, an extrajudicial confinement would be legally justified if it is imposed in accordance with DOCS regulations (see Lee v State of New York, 124 AD2d 305, 306 [3d Dept 1986]).
In the instant case, Claimant has established that Defendant intended to confine him pending the hearing on his misbehavior report, that he was conscious of the confinement, and that he objected to the confinement. Having also alleged that the confinement was unlawful, it is Defendant's burden to show that the confinement was legally justified. Hearing Officer Gutwein testified that on April 7, 2001, Claimant was confined to keeplock status pending a Superintendent's Hearing on charges of violating disciplinary rules in accordance with DOCS policies and practices. Claimant does not dispute this and, indeed, the Court takes judicial notice that DOCS regulations specifically authorize the confinement of inmates under a number of circumstances (see e.g. 7 NYCRR § 251-1.6 [a] [confinement to cell, room or housing area] and 7 NYCRR § 251-1.6 [d] [confinement to special housing unit]). It should be noted that the Correctional Facility Review Officer is responsible for reviewing "the status of each inmate keeplocked pursuant to a misbehavior report under review, and may order the release of an inmate who is no longer a threat to the safety and security of the facility or to himself" (7 NYCRR § 251-2.2 [e]). In addition, the misbehavior report is required to contain several notices to the inmate, including:
If restricted pending a hearing for this misbehavior report, you may write to the Deputy Superintendent of Security or his/her designee prior to the hearing to make a statement on the need for continued prehearing confinement(7 NYCRR § 251-3.1 [d] [3]). Claimant did not contend that he should have been released from prehearing confinement. Nor is there evidence before the Court suggesting that Claimant's prehearing confinement was conducted in a manner other than in conformance with DOCS regulations. Accordingly, the Court concludes that the imposition of Claimant's prehearing confinement was privileged because it was authorized by DOCS regulations.
Claimant does not assert that the Superintendent's Hearing was conducted improperly or that the penalty imposed was improper. Rather, Claimant argues that his disciplinary confinement was excessive because DOCS failed to subtract from his 90 days of penalty confinement his 14 days of prehearing confinement, so that his total confinement for the April 7th misbehavior report was 90 days. However, Claimant does not point to any DOCS rule that supports his argument. According to DOCS rules, the Hearing Officer conducting a Superintendent's Hearing on Tier III violation charges, as in Claimant's case, may impose, among other things, a penalty of "confinement to a cell or room continuously or to a special housing unit continuously or on certain days during certain hours for a specified period" (7 NYCRR § 254.7[a] [1] [iii]). It should be noted that, generally, an inmate's prehearing confinement would be no longer than 14 days because the Superintendent's Hearing must be completed within 14 days of the misbehavior report, unless otherwise authorized by the Commissioner (see 7 NYCRR § 251-5.1[b]). In this case, while the Hearing Officer imposed 7 days of prehearing confinement, 60 days in the SHU and 30 days in keeplock, the Court is unaware of any obligation to subtract either 7 or 14 days of prehearing confinement from the 90 days of penalty confinement (see Matter of Mastropietro v New York State Dept. of Corrections, 52 AD3d 1125, 1126 [3d Dept 2008] lv denied 11 NY3d 711 [2008] [quoting Matter of Starks v Goord, 2 AD3d 1117, 1117-1118 [3d Dept 2003] [" 'there is no authority for petitioner's assertion that he should have received credit toward his administrative penalty for time spent in confinement before the hearing' "]). Therefore, the Court concludes that the imposition of 90 days of disciplinary confinement was also privileged.
In his post-trial submission, Claimant argues that these cases are not applicable because they involve inmates who were found not guilty of the disciplinary charges. Claimant, however, misreads both cases. In Mastropietro, the inmate was found guilty of the charges after a Tier III hearing and the determination was modified on administrative appeal. The inmate challenged the penalty in an Article 78 proceeding, but the Appellate Division confirmed the determination and dismissed the petition. Similarly, in Starks, the inmate was found guilty of the charges after a Tier III hearing and the determination was upheld on administrative appeal. The inmate challenged the penalty in an Article 78 proceeding, but the Appellate Division confirmed the determination and dismissed the petition.
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Having found that Claimant's prehearing confinement and disciplinary confinement were privileged, the Court concludes that Claimant has failed to meet his burden of proving his claim of false imprisonment by a preponderance of the evidence. Accordingly, the Claim is dismissed and all outstanding motions are denied as moot.
LET JUDGMENT BE ENTERED ACCORDINGLY.
November 2, 2011
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims