Opinion
# 2020-053-555 Claim No. 135041 Motion No. M-95907
12-18-2020
GILL TERRENCE v. THE STATE OF NEW YORK
GILL TERRENCE, Pro Se HON. LETITIA JAMES New York State Attorney General BY: Darren Longo, Esq. Assistant Attorney General
Synopsis
The State's motion to dismiss this pro se claimant's wrongful confinement claim is denied. The Court finds that claimant alleged sufficient facts to form the basis for a finding that due process safeguards of 7 NYCRR 254 were violated.
Case information
| UID: | 2020-053-555 |
| Claimant(s): | GILL TERRENCE |
| Claimant short name: | TERRENCE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 135041 |
| Motion number(s): | M-95907 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | GILL TERRENCE, Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Darren Longo, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 18, 2020 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Pro se claimant Gill Terrence filed claim no. 135041 on July 13, 2020, alleging that he was wrongfully confined to the special housing unit (SHU) at Gowanda Correctional Facility (Gowanda). Claimant was confined to the SHU at Gowanda from May 25, 2016 to August 23, 2016. Thereafter, claimant filed an Article 78 proceeding challenging the disposition following the Superintendent's Hearing. On June 8, 2020, the Superintendent's Hearing was administratively reversed. In lieu of answering the claim, defendant moves to dismiss the claim, alleging that it failed to state a cause of action for which relief may be granted. Claimant opposes the motion.
In determining a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7), the allegations in the claim must be construed liberally and the claimant given every favorable inference (Leon v Martinez, 84 NY2d 83 [1994]; Trump on the Ocean, LLC v State of New York, 79 AD3d 1325 [3d Dept 2010], lv denied 17 NY3d 770 [2011]). The Court must also accept as true the facts alleged in the claim and in any submissions in opposition to the dismissal motion (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144 [2002]).
Actions of correctional facility employees taken in furtherance of disciplinary measures are quasi-judicial in nature and are entitled to absolute immunity (Arteaga v State of New York, 72 NY2d 212 [1988]; Loret v State of New York, 106 AD3d 1159 [3d Dept 2013]). This immunity covers discretionary conduct even if that discretion was erroneously exercised or the findings were subsequently overturned (Haddock v The State of New York, UID No. 2018-054-015 [Ct Cl, Rivera, J., March 27, 2018]). When, however, a prison disciplinary hearing is not conducted in accordance with the governing rules and regulations, the cloak of absolute immunity is removed and liability may result (Holloway v State of New York, 285 AD2d 765 [3d Dept 2001]).
In his opposing affirmation, claimant alleges that the hearing officer violated 7 NYCRR § 254.5 (a) and deprived him of his right to due process by refusing to allow him to call witnesses at his hearing. Pursuant to regulation 254.5 (a), an inmate may call witnesses to testify during a disciplinary hearing provided that their testimony is material and not redundant. Under this same regulation, if permission to call witnesses is not granted, the hearing officer must provide a written statement stating the reasons for the denial. According to claimant's affirmation, claimant wanted to call as witnesses one or more of the twelve other SOP (Sex Offenders Program) class members. Apparently, claimant's disciplinary hearing was based on something that occurred during a SOP class. Unfortunately, we do not know from the record before the Court what each proposed witness would have testified about, whether their testimony was material, or whether they were not permitted to testify or simply refused to testify. In addition, nothing in the notice reversing the Superintendent's Hearing (Claimant's Exhibit A), states the basis for the reversal. It merely indicates that the hearing was reversed pursuant to section 254.8 (7 NYRCC § 254.8), which merely states that an inmate has the right to appeal the disposition of a superintendent's hearing.
Claimant is not a person authorized to use an affirmation in lieu of an affidavit sworn to before a Notary Public (CPLR 2106). Attached to the affirmation, however, is a verification page sworn to before a Notary Public.
For the purposes of this motion to dismiss, the Court finds that claimant has alleged sufficient facts which, if proven, could form the basis for a finding that the hearing officer and/or correction facility personnel violated the due process safeguards contained in 7 NYRCC § 254 and that, accordingly, the absolute immunity applicable to a prison disciplinary hearing does not apply (Bottom v State of New York, 142 AD3d 1314 [4th Dept 2016]; Moustakos v State of New York, 133 AD3d 1268 [4th Dept 2015]).
Based on the foregoing, defendant's motion to dismiss, motion no. M-95907, is denied. Defendant is directed to file and serve a verified answer to the claim within forty-five (45) days of the filing of this decision.
December 18, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion and affirmation of Assistant Attorney General Darren Longo dated September 8, 2020, with annexed Exhibit A; and 2. Affirmation of Gill Terrence dated September 15, 2020, with annexed Exhibit A.