Opinion
# 2018-040-057 Claim No. 129148 Motion No. M-91699
07-02-2018
TYRELL WILLIAMS v. THE STATE OF NEW YORK
PRISONERS' LEGAL SERVICES OF NEW YORK By: Alissa R. Hull, Esq. BARBARA D. UNDERWOOD Attorney General of the State of New York By: Thomas Trace, Esq., Senior Attorney
Synopsis
Claimant's Motion for Summary Judgment denied as to the first cause of action for wrongful confinement and granted as to the second cause of action for wrongful confinement regarding not releasing Claimant from SHU after reversal of Hearing Officer's determination.
Case information
| UID: | 2018-040-057 |
| Claimant(s): | TYRELL WILLIAMS |
| Claimant short name: | WILLIAMS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129148 |
| Motion number(s): | M-91699 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | PRISONERS' LEGAL SERVICES OF NEW YORK By: Alissa R. Hull, Esq. |
| Defendant's attorney: | BARBARA D. UNDERWOOD Attorney General of the State of New York By: Thomas Trace, Esq., Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | July 2, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimant's Motion for summary judgment in his favor, pursuant to CPLR 3212, is granted in part and denied in part.
Claimant filed a Claim, with the office of the Clerk of the Court on January 10, 2017, and an Amended Claim on February 9, 2017. The Amended Claim alleges Claimant was incarcerated at Riverview Correctional Facility and received a Misbehavior Report on April 7, 2014, charging him with violating seven institutional rules (violent conduct, assault on staff, weapon, altered item, creating a disturbance, interference, and refusing a direct order) on April 5, 2014 (Amended Claim, ¶¶ 7, 9 [Ex. 1 attached to Affirmation of Alissa R. Hull, Esq., (hereinafter, "Hull Affirmation")], and Ex. A attached thereto). Claimant's first hearing ended on April 18, 2014, and Claimant was found not guilty of creating a disturbance and altered item, but guilty of all remaining charges. The penalty imposed, inter alia, was 42 months confinement in the Special Housing Unit (hereinafter, "SHU") (id., ¶ 39, & Ex. I attached thereto).
At the hearing, Claimant called several inmate witnesses to testify on his behalf, who testified that Officer Bresett was the aggressor and assaulted Claimant. The hearing officer received confidential testimony from the Office of Mental Health (hereinafter, "OMH") but did not indicate how that testimony was considered in rendering his disposition (Amended Claim, ¶¶ 40, 41, and Exs. I & J attached thereto). It is asserted that, pursuant to 7 NYCRR 254.6(g), when an inmate's mental health is at issue, hearing officers are required to "interview an OMH clinician" concerning the inmate's mental condition and "inquire of other witnesses to the incident … concerning any observations that they may have regarding the inmate's mental condition … at the time of the incident." Claimant was admitted to OMH observation shortly after the incident occurred on April 5, 2014 and, although the hearing officer received confidential OMH testimony, he rendered a determination, but failed to state what role the OMH testimony played in the decision to find Claimant guilty. This first hearing was reversed on June 18, 2014 based upon the grounds the hearing officer did not indicate the role the OMH confidential testimony played in reaching his decision, and a new hearing was ordered as a result (id., ¶¶ 42-46, and Ex. K attached thereto).
The second hearing commenced on June 25, 2014 and ended on September 5, 2014, and was reversed by DOCCS because the hearing officer improperly denied one of Claimant's requested inmate witnesses, Mr. Gonzalez, because he had been released on parole. The hearing officer made no attempt to contact Mr. Gonzalez. The hearing was administratively reversed on November 7, 2014 as a result and a new hearing was again ordered (Amended Claim, ¶¶ 48-51, 54, and Exs. M, O attached thereto).
The third hearing started on November 25, 2014 and concluded January 8, 2015. Yet again, Claimant was found guilty. That determination was reversed by DOCCS on March 10, 2015 because the hearing officer improperly refused to allow Claimant to receive any information, documents, or evidence regarding the officer's alleged injuries, and a new hearing was ordered (Amended Claim, ¶¶ 57-64, and Exs. Q, T attached thereto).
On March 19, 2015, the fourth hearing commenced and was concluded on May 7, 2015, when the hearing officer found Claimant not guilty of the altered item and weapon charges and guilty of charges of violent conduct, creating a disturbance, assault on staff, interference, and refusing a direct order (Amended Claim., ¶¶ 10, 11 & Exs. B, C attached thereto). The penalty imposed, inter alia, was 24 months in SHU (id., ¶ 12 & Ex. C). Claimant submitted an administrative appeal to the Commissioner's office on May 7, 2015. On June 26, 2015, Donald Venettozzi, the Director of Special Housing/Inmate Disciplinary Program affirmed the sanctions and disposition (id., ¶¶ 13, 14 & Exs. D, E attached thereto).
At the fourth hearing, Claimant requested that inmate witness, Mr. Bell, testify on his behalf. Claimant explained that Mr. Bell was the only one who could testify and corroborate that the officer he allegedly assaulted had injured himself by falling onto Mr. Bell's locker. Mr. Bell refused to testify at the hearing, stating, on an inmate witness refusal form, "I do not wish to testify" (Amended Claim., ¶¶ 25-28 & Ex. G attached thereto). Inmate Bell testified at Claimant's previous three hearings and stated, in the second and third hearings, in sum and substance, that he was extremely reluctant to testify again due to retaliation and threats made against him by officers regarding this incident (id., ¶ 29). The hearing officer at the fourth hearing did not conduct a personal interview of Mr. Bell to inquire into why he longer wished to testify. He asked a sergeant at the facility where Mr. Bell was incarcerated why he did not want to testify. The sergeant stated, in sum and substance, that Mr. Bell did not give a reason for refusing to testify, and that the sergeant had not personally threatened Mr. Bell with retaliation. There was no testimony as to whether any inquiry was made by the sergeant into whether there were any threats or coercion by other prison staff (id., ¶¶ 30-32).
Claimant commenced a CPLR Article 78 proceeding in Supreme Court, Franklin County on October 27, 2015 challenging his fourth hearing determination (Amended Claim., ¶ 34). In its Decision and Judgment, dated March 31, 2016, the Supreme Court found that Claimant's fundamental right to call witnesses was violated at his fourth hearing. That court reversed the hearing disposition and ordered the matter expunged (id., ¶¶ 37, 38 & Ex. H attached thereto). The above facts are not in dispute.
Claimant sets forth two causes of action for wrongful confinement. The first asserts that Claimant was wrongfully confined to SHU from April 5, 2014 until September 4, 2015 (Amended Claim, ¶ 6) as a result of the various regulatory and constitutional violations that occurred at each of the disciplinary hearings set forth above. The second cause of action asserts that Claimant was wrongfully confined to SHU during the pendency of his rehearings, from approximately June 18, 2014 (the date of the administrative reversal of Claimant's first hearing) until September 4, 2015 (when Claimant was released from SHU) (id., ¶ 69). He asserts that, when a superintendent's hearing is administratively reversed, the inmate is to be released from SHU (see Minieri v State of New York, 204 AD2d 982 [4th Dept 1994]; Hernandez v State of New York, 48 Misc 3d 218, 220 [Ct Cl 2015] (id., ¶ 70).
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
The predicate for the first cause of action is the decision of Acting Justice Feldstein granting Claimant's Article 78 petition, vacating the May 7, 2015 disciplinary conviction, and expunging all references to the proceeding, as well as to the incident underlying the hearing, from Claimant's institutional record (Williams v Annucci, Sup Ct, Franklin County, March 31, 2016, Index No. 2015-810 [Ex. H attached to Amended Claim]). The Court found that Claimant's fundamental right to call witnesses was violated at his fourth hearing.
"It is well settled that, where, as here, the actions of correction personnel have violated the due process safeguards contained in 7 NYCRR parts 252 through 254, those actions '[will] not receive immunity' " (Moustakos v State of New York, 133 AD3d 1268, 1269 [4th Dept 2015], quoting Arteaga v State of New York, 72 NY2d 212, 221 [1988]). "Those due process safeguards include the right to call witnesses at a disciplinary hearing unless the witnesses' testimony is immaterial or redundant, or puts institutional safety or correctional goals in jeopardy" (Bottom v State of New York, 142 AD3d 1314, 1315 [4th Dept 2016]; see Matter of Hill v Selsky, 19 AD3d 64, 65-66 [3d Dept 2005]). However, the absence of an immunity defense does not entitle Claimant to partial summary judgment on liability on his wrongful confinement cause of action. The "removal of immunity … does not result in absolute liability to [D]efendant because [C]laimant is still required to prove the merits of his [C]laim" (Turley v State of New York, UID No. 2010-032-504 [Ct Cl, Hard, J., June 4, 2010]; see Steele v State of New York, UID No. 2013-029-026 [Ct Cl, Mignano, J., July 17, 2013]; Moreno v State of New York, UID No. 2001-007-551 [Ct Cl, Bell, J., Apr. 5, 2001]). " 'Where, as here, a prison inmate contends that he was wrongfully confined as a result of the flawed prison disciplinary proceeding, once the absolute immunity is removed by showing that the governing rules and regulations were not followed, he [or she] may recover damages if he [or she] is able to prove the traditional elements of the tort of [unlawful confinement]: (1) that the confinement was intentional; (2) that Claimant was conscious of the confinement; (3) that Claimant did not consent to the confinement; and (4) that the confinement was not otherwise privileged' " (Moustakos v State of New York, supra, quoting Kilpatrick v State of New York, Ct Cl, Patti, J., UID No. 2001-013-031 [Ct Cl, Patti, J., Dec. 2001], citing Broughton v State of New York, 37 NY2d 451, 456 [1975]; cf. Lamage v State of New York, 31 Misc 3d 1205[A] [Ct Cl 2010]). " 'In other words, not every violation of the rules and regulations governing the imposition of prison discipline will result in liability on the part of the State; the rule violations merely remove the cloak of absolute immunity and make the State potentially liable, if liability would be imposed under common law tort principles' " (Moustakos v State of New York, supra, quoting Kilpatrick v State of New York, supra).
Here, there is no dispute concerning the first three elements of the unlawful confinement cause of action. The dispositive issue is whether Claimant established as a matter of law that the confinement was not otherwise privileged. In order to make a prima facie showing of entitlement to judgment as a matter of law, Claimant was required to present evidence that the testimony of Mr. Bell that was not heard at the fourth hearing would have changed the hearing's outcome (see Miller v State of New York, 156 AD3d 1067, 1068 [3d Dept 2017]; Bottom v State of New York, supra at 1315; Moustakos v State of New York, supra at 1270). As Claimant's counsel notes, however, if Mr. Bell had testified about how Officer Bressett was injured, the hearing officer would have had to make a credibility determination as to whether to credit Mr. Bell's or Officer Bressett's testimony (see Memorandum of Law in Support of Motion, p. 13). Neither did Claimant show that reversal of any of the other asserted violations would have changed the hearing's outcome (id., pp. 13-14). "If [Claimant] … would have been found guilty even if all the rules and regulations had been followed, then his confinement would not be wrongful, regardless of the irregularity of the hearing he received" (Turley v State of New York, supra). Claimant failed to make such a showing. Without it, Claimant has failed to meet his burden on this cause of action (see Winegrad v New York Univ. Med. Center, supra; Alvarez v Prospect Hosp., supra). Thus, the Court concludes that Claimant has failed to establish that he is entitled to judgment as a matter of law on this cause of action.
The Court will now address Claimant's second cause of action that he was wrongfully confined to SHU during the pendency of his rehearings. When a finding of guilt following a disciplinary hearing is administratively reversed, an inmate is to be released from SHU after the reversal (see Minieri v State of New York, supra). Here, because each administrative reversal included a directive that a new hearing be conducted, Defendant argues that Claimant's continued confinement was privileged, and it relies upon 7 NYCRR 251-1.6(a), which provides that confinement is warranted: "[w]here an officer has reasonable grounds to believe that an inmate … represents an immediate threat to the safety, security or order of the facility" (see Affirmation of Thomas Trace, Esq. [hereinafter, "Trace Affirmation"], ¶¶ 4,5).
The Court adopts the reasoning of Judge W. Brooks DeBow in Hernandez v State of New York (supra at 224), who rejected an identical argument, stating:
This argument is insufficient to defeat [C]laimant's motion for summary judgment for three reasons.
First, 7 NYCRR § 251-1.6 (a) authorizes "confine[ment] to [an inmate's] cell or room or housing area" upon the belief of an "officer," but it does not authorize confinement to a SHU (compare 7 NYCRR § 251-1.6 [d] [confinement in SHU to be ordered by superintendent or officer in charge of facility after reasons therefor have been reported by an officer or superior officer]). In opposition to [C]laimant's motion, [D]efendant has not submitted evidence that [C]laimant's confinement in the SHU following the administrative reversal was pursuant to an order of the superintendent or officer in charge of [the facilities where Claimant was incarcerated (see Rodriguez v State of New York, UID No. 2014-048-534 [Ct Cl, Bruening, J., Mar. 31, 2014])] or was otherwise lawfully authorized.
Second, [D]efendant has not demonstrated that the rules that authorize pre-hearing confinement - that is confinement immediately following the incident that gave rise to an IMR [Inmate Misbehavior Report] and prior to the hearing - are applicable when, as here, the inmate has already been confined in [a] SHU during the pendency of his administrative appeal and is now subject to continued confinement prior to a rehearing on the same IMRs (cf. 7 NYCRR 301.3[a] [detention admission authorized while awaiting initial appearance before or determination of a superintendent's hearing]).
Third, to the extent that 7 NYCRR 251-1.6(a) is applicable here, it authorizes confinement when an inmate poses an "immediate threat" to the order of the facility (Hernandez v State of New York, supra). Although the charges against Claimant included violent conduct - assaulting a correction officer - the incident took place on April 5, 2014 and the allegedly-excessive wrongful confinement in SHU began on June 18, 2014, when the hearing officer's determination was reversed. "Any inference that could be drawn from the IMR that [C]laimant posed a threat to the order of the facility" on April 5, 2014 "was not apparent" two and one-half months later, and does not raise an issue of fact regarding an "immediate" threat authorizing confinement on June 18, 2014 (id., at 225). Nor has Defendant offered any evidence from the initial hearing or otherwise that Claimant posed a continuing "immediate" threat to the order of the facility (Hernandez v State of New York, supra, 225).
The Court finds, with respect to the second cause of action, that Claimant has met his burden of proof and established a prima facie showing of entitlement to judgment (see Winegrad v New York Univ. Med. Center, supra; Alvarez v Prospect Hosp., supra). Here, in opposition to the Claimant's Motion, Defendant has not submitted any evidence to establish that Claimant was placed in SHU following the disciplinary hearing reversals in accordance with DOCCS regulations, or that an issue of fact exists.
Thus, the Court finds that regarding the second cause of action, Claimant has established all four elements of a wrongful confinement claim. The Court finds that Claimant's confinement to SHU after the reversal of each disciplinary hearing was not privileged, as it was not in accordance with DOCCS regulations as set forth above (see Hernandez v State of New York, supra). The Court further finds that Claimant was not wrongfully confined to SHU for the entire period from June 18, 2014 until September 4, 2015, during the pendency of his rehearings, as he asserts. The hearing officer's determination following the first hearing was reversed on June 18, 2014 and Claimant should have been released from SHU on that date. The second hearing was concluded on September 5, 2014 and Claimant was again found guilty and sentenced to SHU. Thus, the first period of the wrongful confinement to SHU lasted from June 18, 2014 through September 4, 2014. The second hearing determination was reversed on November 7, 2014 and Claimant, again, should have been released from SHU. The third hearing was concluded on January 8, 2015, when Claimant again was found guilty and, again, sentenced to SHU. Thus, the second period of the wrongful confinement to SHU lasted from November 7, 2014 through January 7, 2015. The third hearing determination was reversed on March 10, 2015 and Claimant, again, should have been released from SHU. The fourth hearing was concluded, and Claimant, yet again, was found guilty and sentenced to SHU on May 7, 2015, where he was confined until September 4, 2015. Thus, the third period of wrongful confinement lasted from March 10, 2015 through May 6, 2015.
Therefore, based upon the foregoing, Claimant's Motion for summary judgment as to liability is denied as to the first cause of action and granted as to the second cause of action as stated above. The Court will contact the parties in due course to establish a conference date.
July 2, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Claimant's Motion for partial summary judgment: Papers Numbered Notice of Motion, Affirmation in Support, Exhibits Attached & Memorandum of Law 1 Affirmation in Opposition & Exhibits Attached 2 Reply Affirmation 3 Filed Papers: Claim, Amended Claim, Answer to Amended Claim