Opinion
# 2019-015-185 Claim No. 132735 Motion No. M-94329
08-29-2019
MALCOM THOMPSON v. THE STATE OF NEW YORK
Malcom Thompson, Pro Se Honorable Letitia James, Attorney General By: Michael T. Krenrich, Esq., Assistant Attorney General
Synopsis
Pro se inmate's motion for summary judgment on his claim for wrongful confinement was denied and, upon searching the record, defendant was granted summary judgment dismissing the claim. The regulation relied upon to support the claim was not a due process safeguard and required the exercise of discretion for which the defendant is immune from liability.
Case information
| UID: | 2019-015-185 |
| Claimant(s): | MALCOM THOMPSON |
| Claimant short name: | THOMPSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132735 |
| Motion number(s): | M-94329 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Malcom Thompson, Pro Se |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Michael T. Krenrich, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 29, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for summary judgment on his claim for wrongful confinement.
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), was issued a misbehavior report charging him with violent conduct in violation of prison disciplinary rule 104.11, and assault in violation of prison disciplinary rule 100.10. The misbehavior report, written by a correction officer providing security coverage in the area, alleges that as claimant was lining up for morning chow, "I observed inmate Thompson make slashing motions to the back of inmate Sidbury['s] head, and side of face. Inmate Thompson was given a direct order to place his hand[s] high, and flat to which he complied" (claimant's Exhibit A, misbehavior report attached to claim). Claimant was allegedly placed in his cell on keeplock status on the date of the incident, January 21, 2019, and was released on February 6, 2019 following a hearing in which a Hearing Officer found claimant not guilty of the charges. Claimant alleges a cause of action for wrongful confinement, seeking damages for the 16-day period he was confined to his cell.
Claimant alleges DOCCS violated Directive 4932, requiring a review officer to dismiss any misbehavior report which fails to state a valid charge, and section 3.4 of the Employees' Rule Manual which prohibits the filing of a false report.
A party moving for summary judgment "bears the heavy burden of establishing 'a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact' " (Deleon v New York City Sanitation Dept., 25 NY3d 1102, 1106 [2015], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824 [2014]; Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]; see also CPLR 3212 [b]). In this regard, CPLR 3212 requires that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." Only where the movant has made this showing does the burden shift to the opposing party "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez, 68 NY2d at 324 ).
In order to establish a cause of action for wrongful confinement, the claimant must "demonstrate that the defendant intended to confine the [claimant], that the [claimant] was conscious of the confinement, that the [claimant] did not consent to the confinement and that the confinement was not privileged" (De Lourdes Torres v Jones, 26 NY3d 742, 759 [2016]; see also Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom Schanbarger v Kellogg, 423 US 929 [1975]). Inmates in medium or maximum security prisons, such as the claimant, may be housed in a special housing unit awaiting disposition of a tier II or tier III hearing (7 NYCRR 301.3, 301.6). In addition, an inmate may be confined to his or her cell "because he represents an immediate threat to the safety, security or order of the facility" (7 NYCRR 251-1.6 [a]). This regulation has been interpreted as "authorizing keeplock whenever an officer reasonably believes that a facility rule has been violated by an inmate, thus establishing an immediate threat to the order of the facility" (Matter of Pettus v West, 28 AD3d 907 [3d Dept 2006]; see also Matter of Kalonji v Fischer, 102 AD3d 1041 [3d Dept 2013]). Even when such confinements are accomplished in bad faith, the State is nevertheless entitled to absolute immunity for discretionary disciplinary determinations unless the employees exceed the scope of their authority or violate one of the required due process safeguards (7 NYCRR 251-5.1; parts 252-254; Arteaga v State of New York, 72 NY2d 212, 214 [1988]; Diaz v State, 155 AD3d 1279 [3d Dept 2017], lv dismissed in part and denied in part 30 NY3d 1101 [2018]).
Here, claimant's keeplock confinement to his cell was authorized pending completion of his disciplinary hearing and for the safety and security of the prison, and his contention that DOCCS violated both Directive 4932 and section 3.4 of the Employees' Rule Manual fails to support his claim. The requirement in Directive 4932 that a review officer dismiss any misbehavior report which fails to state a valid charge is also found in DOCCS' regulations at 7 NYCRR 251-2.2 (c). This regulation is not one of the due process safeguards which, if violated, may form the basis for a wrongful confinement claim (see Arteaga, 72 NY2d at 214). Nor may a violation of one of the requirements contained in the Employees' Rule Manual support a wrongful confinement claim (id.). While the absence of a violation of a due process safeguard forecloses recognition of a wrongful confinement claim, the instant claim fails for the additional reason that the review officer's determination whether to dismiss a misbehavior report because it "fails to state a valid charge", or not, is itself a discretionary determination for which the State is immune from liability (7 NYCRR 25102.2 [c]; Diaz v State of New York, 155 AD3d 1279, 1281 [3d Dept 2017], lv dismissed in part and denied in part 30 NY3d 1101 [2018]). In the absence of any showing that prison authorities exceeded the scope of their authority or violated a due process safeguard, claimant's 16-day keeplock confinement pending the completion of his tier III disciplinary hearing was privileged. There being no question of fact on the element of privilege, the court will search the record and grant summary judgment dismissing the claim as a matter of law (CPLR 3212 [b]; Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]).
Accordingly, claimant's motion for summary judgment is denied and, upon searching the record, defendant is granted summary judgment dismissing the claim.
August 29, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Undated notice of motion;
2. Verified affidavit of Malcom Thompson dated July 2, 2019, with Exhibits A and B;
3. Affirmation in opposition of Michael T. Krenrich, A.A.G. dated August 15, 2019.