Opinion
No. 127854.
07-21-2017
William D. SMITH, Claimant, v. STATE of New York, Defendant.
William D. Smith, Pro Se, Claimant. Eric T. Schneiderman, Attorney General By Aaron J. Marcus, AAG, for Defendant.
William D. Smith, Pro Se, Claimant.
Eric T. Schneiderman, Attorney General By Aaron J. Marcus, AAG, for Defendant.
FAVIOLA A. SOTO, J.
Pro se claimant, a prisoner in the custody of the Department of Corrections and Community Supervision ("DOCCS"), brings this action alleging that the State wrongly confined him for sixty-four days. Claimant makes two motions: first, he seeks judgment on the issue of liability; second, he moves to compel discovery. The State cross-moves for summary judgment on liability.
The following papers were read and considered by the Court in deciding the motions:
1. Claimant's motion for summary judgment, memorandum of law in support, and affidavit in support (M–89780);
2. Defendant's notice of cross-motion and affirmation in opposition to claimant's motion for summary judgment and in support of defendant's motion for summary judgment with annexed exhibits A–N (CM–89942) and accompanying memorandum of law;
3. Claimant's response to defendant's cross-motion with memorandum of law in opposition to defendant's motion for summary judgment and in support of claimant's motion for summary judgment dated March 2, 2017;
4. Claimant's memorandum of law in opposition to defendant's motion for summary judgment also dated March 2, 2017;
5. Claimant's motion for summary judgment regarding defendant's failure to produce discovery (M–89792);
6. Defendant's affirmation in opposition to claimant's motion for summary judgment regarding defendant's failure to produce discovery.
FACTS
On January 12, 2016, claimant was charged with various acts of sexual misconduct against another inmate at Woodbourne Correctional Facility. As a result, claimant was issued an Inmate Misbehavior Report by Sergeant DePaolo. A Tier 3 disciplinary hearing was then conducted on February 18, 2016. (See Defendant's Cross–Motion ¶ 4 and Ex. B).
On February 18, 2016, claimant refused to attend the hearing and signed a "Willful Refusal and Voluntary Waiver to Attend Disciplinary" form. (See Defendant's Cross–Motion Ex. J). Sgt. DePaolo and an Office of Mental Health ("OMH") employee testified at the hearing and claimant was found guilty on all charges. Claimant was penalized with seventy-five days of Special Housing Unit confinement, starting on February 18, 2016 and running to May 3, 2016. (See Defendant's Cross–Motion ¶ 4 and ¶ 5).
Claimant appealed the hearing disposition to the DOCCS Director of Special Housing/Inmate Discipline who reversed the sentence on March 14, 2016. The disposition was reversed on the grounds that the Hearing Officer failed to provide his assessment of the OMH witness' testimony and the confidential information obtained by Sgt. DePaolo. This information is required by 7 NYCRR § 254.6(f). (See Defendant's Cross–Motion ¶ 7 and Ex. F).
After his release, claimant filed his claim on April 27, 2017 and served his claim on the Attorney General's office on April 26, 2016. The initial claim for wrongful confinement did not allege any violations of claimant's due process rights. On May 16, 2016, claimant served and filed an amended claim alleging that the defendant violated claimant's procedural due process rights pursuant to 7 NYCRR § 253.5(a), (b), and (c)(1) . Claimant seeks damages for the sixty-four days from January 12, 2016 to March 15, 2016 that he was confined. After defendant served its verified answers, claimant moved for summary judgment and for further discovery and the defendant cross-moved for summary judgment.
The Court notes that the February 18, 2016 hearing was a Tier 3 hearing subject to 7 NYCRR § 254 (Superintendent's Hearing), not § 253 (Disciplinary Hearing). (See Defendant's Cross–Motion Ex. B). The Court further notes that § 254.5 is identical to § 253.5 and, thus, the Court's analysis does not change.
ANALYSIS
Summary Judgment Standard
Claimant bears the initial burden of establishing his right to summary judgment as a matter of law by tendering sufficient evidence, in admissible form, to eliminate any material issues of fact from the case. See Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]. CPLR 3212(b) provides that such motion "shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit." In this regard, conclusory assertions are insufficient to demonstrate the absence of any material issues of fact. See Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063 [1993]. The failure to make the initial prima facie showing requires the denial of the motion, regardless of the sufficiency of the opposing papers. See Winegard v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]. Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue. See Svoboda v. Our Lady of Lourdes Mem. Hosp., Inc., 31 AD3d 877 [3d Dept 2006]. Summary judgment is a drastic remedy and may be granted only when it is clear that no triable issue of fact is present. See Lebanon Vall. Landscaping v. Town of Moriah, 258 A.D.2d 732, 733 [3d Dept 1999]. A cross-movant is held to an identical standard.
Arteaga Immunity
The actions of prison personnel involving inmate disciplinary matters are generally quasi-judicial and are absolutely immune from liability unless they exceed the scope of their authority or violate applicable rules. See Arteaga v. State of New York, 72 N.Y.2d 212 [1988] ; Bottom v. State of New York, 142 AD3d 1314 [4d Dept 2016]. The fact that the disposition from a disciplinary hearing is later reversed does not necessarily remove the cloak of immunity. See Arteaga v. State of New York, supra; Loret v. State of New York, 106 AD3d 1159 [3d Dept 2013]. Even when immunity is lost recovery is not certain; the State is then only potentially liable. Claimant still must demonstrate that the outcome of the hearing would have been different had the violation not occurred. See Bottom v. State of New York, supra; Moustakos v. State of New York, 133 AD3d 1268 [4d Dept 2015].
It is claimant's burden to show that he was denied due process at the February 18, 2016 hearing. Specifically, claimant must show that the hearing violated a rule contained in 7 NYCRR parts 252 through 254 and that but for such violation he would have not been confined. See Bottom v. State of New York, 142 AD3d at 1315. Claimant has failed to meet his burden.
Claimant alleges that his procedural due process rights pursuant 7 NYCRR § 254.5 were violated when he was not allowed to appear at the disciplinary hearing or to listen to the hearing tape. However, claimant's allegations are meritless.
With regard to the first alleged violation, defendant's cross-motion annexed a copy of the "Willful Refusal and Voluntary Waiver to Attend Disciplinary Hearing" form relating to claimant's hearing. (See Defendant's Cross–Motion Ex. J). Claimant signed the form and it definitively shows that he refused and waived his right to attend his disciplinary hearing. (Id.) With regard to the second alleged violation, 7 NYCRR § 254.5(b) refers to "inmate witnesses" and requires that recordings of a witness' statement be made available to the inmate at the hearing unless special circumstances apply. 7 NYCRR § 254.5(c) states that an inmate may ask the hearing officer or the hearing officer's assistant for a witness either before or during the hearing. In this case, claimant neither attended the hearing nor did he request any witnesses to give statements at his hearing. In fact, claimant refused to sign the "Assistant Form", which is the form he was supposed to use to request witnesses. (See Defendant's Cross–Motion Ex. K). There is no indication that claimant intended to request a witness for his hearing. Since claimant's allegations are without merit, the Court will not address whether claimant has shown that the outcome of the February 18, 2016 hearing would be different but for these violations. Moreover, claimant waived his right to any procedural challenges when he refused to attend the hearing. See Kalwasinksi v. Senkowski, 244 A.D.2d 738 [3d Dept 1997].
DOCCS' Director of Special Housing/Inmate Discipline reversed the hearing disposition on the grounds that the Hearing Officer's failed to provide his assessments of the OMH testimony and Sgt. DePaolo's confidential testimony. The DOCCS' Director concluded that these omissions violated 7 NYCRR § 254.6(f). Assuming the DOCCS' Director's conclusions are correct, claimant is unable to show that he was denied due process at the February 18, 2016 hearing. 7 NYCRR § 254.6(f) states that "[t]he written statement of the disposition of the charges, if any, shall, in accordance with section 254.7(a)(5) of this Part, reflect how the inmate's mental condition or intellectual capacity was considered." The Hearing Officer's failure to produce a written statement on how claimant's mental condition or intellectual capacity was considered during the hearing would not change the actual outcome of the hearing for several reasons. First, claimant does not allege any mental or intellectual deficiencies impacting his capacity. Second, claimant does not link any such incapacity with his non-attendance at the hearing. Lastly, the documentary evidence shows that claimant had no desire to attend the hearing. (See Defendant's Cross–Motion Ex. J).
Claimant did not raise the purported violation of 7 NYCRR § 254.6(f) as a ground for his alleged wrongful confinement.
"[N]ot all disciplinary hearing procedural rules and regulations, if violated, form a basis to abrogate the immunity afforded to employees of the Department of Corrections and Community Supervision in commencing and conducting formal inmate disciplinary proceedings. The rule or regulation must implicate minimal due process protections ..." Amato v. The State of New York, UID No.2014–041–038 [Ct Cl, Milano, J. June 26, 2014]. The Hearing Officer's violation amounts to a mere administrative error and does not show that claimant was denied any substantive due process rights. Id. Thus, defendant's acts are immune.
Even if claimant's summary judgment motion were meritorious, it must be denied on other grounds. CPLR 3212(b) requires that the movant provide a copy of the pleadings in support of the motion. Claimant's moving papers do not include a copy of either the claim or the defendant's answer. A motion for summary judgment is "properly denied in its entirety on that ground alone." See Senor v. State of New York, 23 AD3d 851, 852 [3d Dept 2005] ; Bonded Concrete v. Town of Saugerties, 3 AD3d 729, 730 [3d Dept 2004], lv dismissed 2 NY3d 793 [2004].
By contrast, defendant's cross-motion for summary judgment includes all pleadings. Moreover, defendant has met its prima facie burden by showing that it is entitled to Arteaga immunity. Claimant's contention that he was not allowed to appear at the disciplinary hearing or to listen to the hearing tape is contradicted by the record. As mentioned earlier, defendant's cross-motion annexed documentary evidence that claimant waived his right and refused to attend his hearing. (See Defendant's Cross–Motion Ex. J). Claimant has failed to raise a triable issue of fact sufficient to defeat defendant's cross-motion. Accordingly, defendant's cross-motion is hereby granted.
Claimant's Causes of Action Under the United States and New York Constitutions
Claimant's amended claim alleges that his Eight and Fourteenth Amendment rights under the United States Constitution were violated. The Court of Claims, however, does not have jurisdiction over causes of action brought under the United States Constitution. See Brown v. State of New York, 89 N.Y.2d 172 [1996]. Accordingly, claimant's causes of action for violation of his rights secured by the United States Constitution are dismissed.
Claimant's amended claim also alleges that his State constitutional rights were violated. Unlike alleged violations of federal constitutional rights, actions against the State based on violations of the State Constitution are within the jurisdiction of the Court of Claims. See Brown v. State of New York, supra. However, the "narrow remedy" established in Brown is limited to circumstances where no other "avenue of redress" is available to the claimant. See Martinez v. City of Schenectady, 97 N.Y.2d 78 [2001]. In light of claimant's statutory wrongful confinement claim (CCA § 10[3–b] ) against the State, claimant clearly has alternative means of redress available to him. Therefore, claimant's State constitutional causes of action are dismissed. In either event, claimant has not met his burden to show that his State constitutional rights were violated or that damages are warranted.
CONCLUSION
Based on the foregoing, the Court concludes that the defendant is not liable to claimant for any claimed damages. Claimant's motion for summary judgment (M–89780) is denied. Defendant's cross-motion for summary judgment (CM–89942) is granted. Additionally, claimant's motion requesting discovery (M–89792) is denied as moot in light of the Court's decision to grant defendant's cross-motion.