Opinion
# 2011-015-275 Claim No. 118226 Motion No. M-80151
11-22-2011
WILSON v. THE STATE OF NEW YORK
Synopsis
Motion to dismiss defenses was granted in part. Failure to electronically record disciplinary hearing did not negate immunity defense. Case information
UID: 2011-015-275 Claimant(s): MICHAEL L. WILSON Claimant short name: WILSON Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118226 Motion number(s): M-80151 Cross-motion number(s): Judge: FRANCIS T. COLLINS Claimant's attorney: Michael L. Wilson, Pro Se Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Joan Matalavage, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: November 22, 2011 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, an inmate proceeding pro se, moves to dismiss the defenses asserted in the defendant's answer.
The claim asserts a cause of action for wrongful confinement arising from the imposition of a disciplinary sanction following a Tier II disciplinary hearing on November 4, 2009. Claimant alleges his administrative appeal from the Hearing Officer's determination of guilt, and the sanction of 30 days cell confinement, resulted in an affirmance on November 10, 2009. Following a request to obtain a copy of the "hearing tape" pursuant to the Freedom of Information Law (FOIL; Public Officers Law Art 6), claimant was informed on February 4, 2010 that the tape recording of the hearing was blank (Claim, ¶¶ 4, 5; claimant's Exhibit E, response to FOIL request). Upon receipt of this information, claimant informed Superintendent LaValley in writing on February 9, 2010 that the disciplinary hearing was not recorded. Deputy Superintendent of Security C.F. Kelly responded on February 12, 2010 stating, in relevant part the following:
"I have reviewed your letter, the hearing packet, your appeal and the electronic hearing tape and find that the hearing was not completely recorded in accordance with established procedures. . . As such, I am ordering that the hearing held on 11/4/09 for an incident dated 10/26/09 be reversed and expunged from your institutional records . . ." (claim, ¶ 5; claimant's Exhibit F, letter from C.F. Kelly).
Claimant allegedly served a notice of intention to file a claim on January 27, 2010 (claim, ¶ 8). The notice of intention alleges that the disciplinary action taken "was a retalition for writing a complaint against a Sgt. This is a on going thing everytime I write a complaint against staff I received a ticket right after" (claimant's Exhibit G).The claim, however, is based on the specific contention that the Hearing Officer's failure to record the hearing violated 7 NYCRR 253.6 (b) thereby giving rise to a wrongful confinement cause of action (Claim ¶6). The answer served on May 10, 2010 raised seven enumerated defenses, as to each of which the claimant now seeks dismissal.
The quoted excerpt is uncorrected.
CPLR 3211 (b) permits a party to "move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." To succeed on a motion to dismiss a defense pursuant to CPLR 3211 (b), the claimant bears the burden of demonstrating the defense lacks merit as a matter of law (Suarez v State of New York, 60 AD3d 1243 [2009]; Vita v New York Waste Servs., LLC, 34 AD3d 559 [2006]; Santilli v Allstate Ins. Co., 19 AD3d 1031 [2005]). For purposes of such a motion, "all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof" (Grunder v Recckio, 138 AD2d 923 [1988]). "If there is doubt as to the availability of a defense, it should not be dismissed" (Pellegrino v Millard Fillmore Hosp., 140 AD2d 954, 955 [1988] [internal quotation marks and citation omitted]).
Defendant's first defense alleges the claim fails to state a cause of action. To state a cause of action for wrongful confinement, sufficient facts must be alleged from which it could be inferred that "(1) the defendant intended to confine [claimant], (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 [1975]), cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; see also Leon v Martinez, 84 NY2d 83, 87-88 [1994]). For the reasons set forth below, the alleged violation of a regulation requiring prison disciplinary hearings to be electronically recorded (7 NYCRR 253.6 [b]) does not divest an otherwise privileged disciplinary confinement of its privileged character and consequently forms no basis for a wrongful confinement claim. Accordingly, claimant's motion to dismiss the defendant's first defense is denied.
Defendant's second defense asserts that the actions of the State of New York "are judicially or quasi-judicially privileged, or discretionary determinations . . . and are, therefore immune from liability". It is well-settled that conduct of correction employees taken in furtherance of authorized disciplinary measures is quasi-judicial in nature and entitled to absolute immunity (Arteaga v State of New York, 72 NY2d 212 [1988]; see also Davidson v State of New York, 66 AD3d 1089 [2009]; Holloway v State of New York, 285 AD2d 765, 766 [2001]; Mitchell v State of New York, 32 AD3d 594 [2006]). Unlike qualified immunity, which shields the State from suit except when conduct is undertaken in bad faith or without a reasonable basis, absolute immunity shields the government from liability regardless of the reasonableness of the conduct complained of or the motivation behind it (Arteaga at 216). The Arteaga Court was careful to point out, however, that the protections afforded by absolute immunity do not extend to:
"unlawful actions of employees taken beyond their authority or in violation of the governing rules and regulations . . . Thus, actions of correction personnel in . . . . confining [inmates] without granting a hearing or other required due process safeguard (see, 7 NYCRR 251-5.1; parts 252-254) would not receive immunity " (id. at 220-221).
The claimant here does not allege he was confined in violation of a due process safeguard, but that the Hearing Officer's failure to electronically record his disciplinary hearing violated a regulation governing the conduct of the hearing. The regulation, 7 NYCRR 253.6 [b], states, in pertinent part, the following:
"Upon receipt of a misbehavior report from the review officer, the hearing officer shall commence the disciplinary hearing as follows:
* * *
(b) The inmate shall be present at the hearing unless he refuses to attend, or is excluded for reason of institutional safety or correctional goals. The entire hearing must be electronically recorded" (emphasis added).
While the alleged failure to electronically record the hearing may constitute a violation of § 253.6 (b), it does not violate a procedural due process safeguard under either the Federal or State Constitutions so as to defeat the full immunity accorded correction personnel in the exercise of their quasi-judicial duties. With regard to the procedural due process requirements afforded an inmate under the Federal Constitution, the Second Circuit Court of Appeals has noted that "regardless of state procedural guarantees, the only process due an inmate is that minimal process guaranteed by the Constitution, as outlined in [Wolff v McDonnell, 418 US 539, 561-70 (1974)]" (Shakur v Selsky, 391 F3d 106, 119 [2d Cir 2004]). Wolff did not include the requirement of an electronically recorded hearing among the procedural due process safeguards which must be afforded an inmate facing disciplinary charges (see Ramsey v Goord, 661 F Supp 2d 370, 393 [2009]). As the Supreme Court in Wolff made clear, "the fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed. . . . Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply" (418 US at 556).
Thus, while the claimant here alleges that the failure to electronically record the disciplinary hearing violated an applicable State regulation, it did not violate a due process requirement of the Federal Constitution. Furthermore, while the Federal Constitution "defines the minimum level of individual rights and leaves the States free to provide greater rights for its citizens through its Constitution, statutes or rule-making authority" (Cooper v Morin, 49 NY2d 69, 79 [1979]), there is no recognized right to an electronically recorded disciplinary hearing under the New York State Constitution (Matter of Carter v Goord, 271 AD2d 729, 730 [2000]; see also Matter of Murrell v Dubray, 47 AD3d 718 [2008]). So long as inmates are provided with a statement of the evidence relied upon by the Hearing Officer in rendering his or her determination and the reasons for the action taken, they are afforded the information necessary to challenge a determination (Matter of Holmes v Fischer, 66 AD3d 1093 [2009]; Matter of Rivera v Smith, 137 AD2d 281 [1988]). Since the violation of the regulatory requirement for an electronically recorded hearing violates no constitutionally required due process safeguard, the protective cloak of absolute immunity is not lost for the State's quasi-judicial discretionary determinations. Claimant's motion for dismissal of the defendant's second defense asserted in its answer is therefore denied.
Defendant's third and seventh defenses assert the claim is untimely pursuant to Court of Claims Act § 10 (3) (claimant's Exhibit D). However, the instant wrongful confinement claim alleges an intentional tort governed by the time limitations set forth in Court of Claims Act § 10 (3-b), not § 10 (3). As a result, defendant waived its objection to the timeliness of the claim by failing to set forth the defense "with particularity" (see Court of Claims Act § 11 [c]; Sinacore v State of New York, 176 Misc 2d 1 [1998]). This defense must, therefore, be dismissed.
Defendant's fourth defense asserting sovereign immunity and fifth defense asserting privilege based upon conduct "mandated by statute", while to some extent redundant of defendant's first and second defenses, are not subject to dismissal given the proscription against dismissing defenses if there is any doubt as to their availability (Pelligrino v Millard Fillmore Hosp., 140 AD2d at 955).
Defendant's sixth defense alleges " the claim fails to comply with Section 11 of the Court of Claims Act as the claim alleges causes of actions [sic] not set forth in the notice of intention. Thus, those causes of actions [sic] not set forth in the notice of intention are not within the jurisdiction of the Court" (claimant's Exhibit D). Notably, the service of a notice of intention is not a prerequisite to the commencement of an action in the Court of Claims. Rather, when properly and timely served in accordance with Court of Claims Act §§ 10 and 11, a notice of intention acts to extend the time to serve and file a claim. Conversely, a notice of intention which does not comport with the pleading or service requirements of Court of Claims Act § 11 does not extend the time to file and serve a claim under Court of Claims Act § 10. Defendant's sixth defense, however, fails to preserve such a defense with sufficient particularity and must be dismissed (see generally Court of Claims Act § 11 [c]; Sinacore v State of New York, supra).
Based on the foregoing, claimant's motion is granted to the limited extent of dismissing defendant's third, sixth and seventh defenses and is otherwise denied.
November 22, 2011
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Notice of motion dated June 30, 2011;
2. Affidavit of Michael L. Wilson sworn to June 30, 2011with exhibits;
3. Affidavit of Joan Matalavage sworn to August 3, 2011 with exhibit;
4. Reply of Michael L. Wilson sworn to August 9, 2011 with exhibit.