Opinion
# 2021-053-503 Claim No. 132536 Motion No. M-95699 Cross-Motion No. CM-95941
01-25-2021
LEO DUCHNOWSKI v. THE STATE OF NEW YORK
LEO DUCHNOWSKI, Pro Se HON. LETITIA JAMES New York State Attorney General BY: Tamara B. Christie, Esq. Assistant Attorney General
Synopsis
In this claim for wrongful confinement, this former inmate claimant's second motion for summary judgment is denied and the State's cross-motion for summary judgment is granted. Claimant failed to submit newly discovered evidence or other sufficient cause to warrant consideration of second motion. The State's motion is granted as there was no proof of a violation of any rule or regulation in conducting the disciplinary hearing and the claim was also untimely served.
Case information
| UID: | 2021-053-503 |
| Claimant(s): | LEO DUCHNOWSKI |
| Claimant short name: | DUCHNOWSKI |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132536 |
| Motion number(s): | M-95699 |
| Cross-motion number(s): | CM-95941 |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | LEO DUCHNOWSKI, Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Tamara B. Christie, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 25, 2021 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Leo Duchnowski, a former inmate proceeding pro se, alleges in claim no. 132536 that he was wrongfully confined to the Special Housing Unit (SHU) while incarcerated at Groveland Correctional Facility (Groveland). Claimant moves for the second time for summary judgment by motion no. M-95699. Defendant opposes claimant's motion and cross moves for summary judgment by cross motion no. CM-95941.
According to claim no. 132536, on November 14, 2017, claimant received a Misbehavior Report based on a urinalysis testing violation. The urinalysis testing violation was based on claimant's failure to submit to a urinalysis test when ordered to do so by a correction officer while he was incarcerated at Gowanda. Claimant alleges that he was wrongfully confined to SHU for 60 days as a consequence of a guilty determination issued on November 27, 2017, after the completion of the prison disciplinary hearing conducted with respect to this violation. According to claimant, the disciplinary hearing determination was administratively reversed on October 11, 2018, after claimant commenced an Article 78 proceeding and the Attorney General chose not to respond to claimant's appellate brief.
Claimant's initial motion for summary judgement (M-93657) was denied by decision and order (see Duchnowski v State of New York, UID No. 2019-053-524 [Ct Cl, Sampson, J., July 8, 2019]). It was denied as claimant had neglected to support his motion with an affidavit and copies of the pleadings and as he failed to prove that the disciplinary hearing was not privileged as he failed to establish that it was not conducted in accordance with the rules or regulations of the Department of Corrections and Community Supervision (DOCCS).
"Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause" (Tingling v C.I.N.H.R., Inc., 120 AD3d 570, 570 [2d Dept 2014][citations omitted]). Here, claimant has failed to identify or offer any newly discovered evidence or other sufficient cause to warrant consideration of a second motion for summary judgment. All of the evidence submitted by claimant with his second summary judgment motion was in existence at the time of his initial motion. Evidence is not considered to be newly discovered simply because it was not submitted on the prior motion (Vinar v Litman, 110 AD3d 867 [2d Dept 2013]). Absent sufficient cause for advancing a second summary judgment motion, claimant's second motion could be denied on this basis alone (Consolidated Mtg., LLC v Westport Golf Invs., LLC, (141 AD3d 923 [3d Dept 2016], lv denied 28 NY3d 1102 [2016]).
In order to establish a claim of wrongful confinement, the claimant must prove that "(1) the defendant intended to confine him, (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]). At issue here is whether claimant's confinement was privileged. Claimant makes essentially the same argument he made on his initial motion, i.e., that the findings of his disciplinary hearing were subsequently reversed and that the disciplinary hearing was not conducted in compliance with "7 NYCRR" without specifying any section or subsection allegedly violated.
In the prison system context, defendant's actions in commencing and conducting inmate disciplinary hearings are "quasi-judicial in nature for which the State has absolute immunity" (Arteaga v State of New York, 72 NY2d 212, 214 [1988]). Notwithstanding a subsequent reversal of the underlying disciplinary findings, defendant retains its immunity as long as the disciplinary proceedings were conducted in accordance with the rules and regulations of DOCCS (Id. at 220-221; Lee v State of New York, 124 AD2d 305 [3d Dept 1986]).
Even when a prison official violates the governing statutes and regulations during a prison disciplinary hearing, such a violation would only form the basis of a wrongful confinement claim where the violation implicates due process safeguards (Arteaga v State of New York, supra at 215; Miller v State of New York, 156 AD3d 1067 [3d Dept 2017]). On his second motion for summary judgment, claimant argues that DOCCS Directives 4932 and 4937 were violated as the request for urinalysis form was not dated and as the misbehavior report had the wrong location on it.
At the disciplinary hearing, Sgt. Thompson testified that she filled out the request for urinalysis form on November 13, 2017 and submitted it to her Lieutenant that same day for approval. According to Sgt. Thompson, she forgot to put the date on the urinalysis form and that it was a simple clerical error. At his disciplinary hearing, claimant also complained that the inmate misbehavior report incorrectly indicated the Urinalysis Detection Room as the location of the incident. The hearing officer explained that, technically, a final urinalysis testing refusal comes through the urinalysis lab whether the inmate was in the box or the infirmary at the time. At best, the errors in the paperwork complained of by claimant amount to no more than clerical errors.
Claimant does not allege a violation of any governing statute or regulation of DOCCS relating to the prison system disciplinary process nor the violation of any due process safeguards. In addition, claimant does not allege that he was not guilty of refusing to take the urinalysis test or that the outcome of the disciplinary hearing would have been different had there been no clerical errors (Bottom v State of New York, 142 AD3d 1314 [4th Dept 2016]; Moustakos v State of New York, 133 AD3d 1268 [3d Dept 2015]). Thus, as the claimant failed to show that the SHU confinement resulting from the inmate disciplinary hearing was not "otherwise privileged," claimant has failed to prove a wrongful confinement cause of action (Bottom v State of New York, supra at 1316). Thus, claimant's motion no. M-95699 for summary judgment is denied.
For the same reasons that claimant's summary judgment motion must be denied, defendant's cross motion for summary judgment must be granted. There is absolutely no proof of a violation of any rule or regulation in conducting the disciplinary hearing, the clerical errors alleged do not amount to a violation of any due process safeguard, and there are no allegations that the outcome of the disciplinary hearing would have been different but for the clerical errors. Thus, the quasi-judicial activities of the involved correction officers and of the hearing officer are entitled to absolute immunity (Arteaga v State of New York, supra at 214; Holloway v State, 285 AD2d 765 [3d Dept 2001]). Accordingly, defendant's cross motion no. CM-95941 for summary judgment is granted and claim no. 132536 is dismissed.
Defendant also moves for summary judgment on the grounds that the claim is jurisdictionally defective as it was untimely filed and served. Court of Claims Act § 10 provides that a claim for damages must be filed and served upon the Attorney General within ninety (90) days of accrual of the claim unless within the same ninety (90) day period, the claimant serves upon the Attorney General a notice of intention to file a claim. The service and filing requirements of the Court of Claims Act are jurisdictional in nature (Dreger v New York State Thruway Auth., 81 NY2d 721 [1992]; Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]). The failure to comply with the service and filing requirements of the Court of Claims Act deprives the Court of jurisdiction, requiring dismissal of the claim (Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], app denied 64 NY2d 607 [1985]). Defendant argues that the claim should be dismissed for being jurisdictionally defective as neither a notice of intention to file a claim nor a claim was served within ninety (90) days of accrual of the claim.
The claim (Exibit B) and the notice of intention to file a claim (Exhibit A) were both served on the Attorney General on January 22, 2018. According to the Superintendent's Hearing Disposition form, after being found guilty of a urinalysis testing violation on November 27, 2017, claimant was given a penalty of 120 days in SHU which was to begin on January 4, 2018 and was to end on May 4, 2018, a period of approximately 120 days. Defendant submits an affidavit from Corey Bedard, a Correction Captain within the Office of Special Housing and Inmate Disciplinary Programs (Exhibit D). According to Mr. Bedard's affidavit, claimant was confined to SHU for 60 days, from January 4, 2018 through March 5, 2018, as a result of the November 14, 2017 refusal to give a urine sample and corresponding misbehavior report. Mr. Bedard further attested that claimant was not released from SHU or returned to the general population on March 5, because he was still serving punitive confinement for other acts of misbehavior unrelated to the November 14, 2017 misbehavior report which is relevant herein.
The facts as set forth in Mr. Bedard's affidavit appear to comport with claimant's allegations. In his notice of claim and claim, claimant alleges that he was wrongfully confined in SHU for a period of 60 days and that the wrongful determination following the disciplinary hearing was reversed on October 11, 2018. At the time of the subject misbehavior report claimant was in SHU for an earlier infraction or infractions. According to the Superintendents's Hearing Disposition Form (Exhibit F), any subsequent sanction "will be consecutively added to any similar current sanction. In addition, whenever a confinement penalty is being served and a more restrictive confinement penalty is imposed as a result of another hearing, the more restrictive penalty shall begin to be served immediately, and any time owed on the less restrictive penalty shall be served after completion of the more restrictive penalty period."
On page 4 of his opposing affidavit, claimant admits that he received several disciplinary sanctions before and after the subject disciplinary hearing, all running consecutively. According to claimant, he served 45 days in SHU from November 29, 2017 to January 4, 2018 on an unrelated misbehavior report and served another 45 day sanction in SHU from March 5, 2018 to April 19, 2018, also on an unrelated misbehavior report. Thereafter, claimant was confined in keeplock until November 19, 2018 to serve his various keeplock sanctions imposed for other determinations that claimant received "before the one that was reversed expired" (see Claimant's notice of intention, Exhibit A).
Claimant alleges that he spent from January 4, 2018 to March 5, 2018 in SHU which does not appear on his disciplinary history as this SHU period was expunged from his records when the subject misbehavior report was reversed and expunged from his records on October 11, 2018. The parties appear to agree that claimant was released from the SHU confinement which was imposed as a result of the subject misbehavior report on March 5, 2018.
A claim for wrongful confinement accrues on the date when the confinement terminates (Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]). Defendant contends that the claim should be dismissed as being jurisdictionally defective as neither the notice of intention nor the claim was served within ninety days after accrual of the claim on March 5, 2018, when claimant was released from SHU confinement. Claimant argues, however, that his claim was timely as it was served within ninety days of the November 19, 2018 release from the keeplock sanctions imposed as a result of unrelated misbehavior reports.
There is some support for claimant's position. In Trammell v State of New York, 172 AD3d 1847 [3d Dept 2019], an inmate was continuously confined in connection with a series of overlapping disciplinary hearing determinations that imposed both SHU and keeplock confinements. The claimant in Trammell was alleging that DOCCS violated its own rules in calculating his disciplinary confinements after a series of separate incidents and a series of separate administrative hearings. The Court found the claim timely as it was served within ninety days of claimant's release from keeplock. The claim in Trammell, however, set forth the separate, but overlapping, disciplinary determinations at issue and the corresponding penalties, both SHU and keeplock, used to calculate the disputed confinement period. While claimant attempts to assert in his opposing affidavit that his overlapping penalties were incorrectly calculated, there is no such allegation or cause of action in the claim. Rather, the claim herein is solely one for wrongful confinement as based on the one misbehavior report dated November 14, 2017. As this claim was served more than ninety days after March 5, 2018, when claimant was released from the SHU confinement based on the subject November 14, 2017 misbehavior report, the claim is untimely. Accordingly, defendant's motion for summary judgment is granted on the additional basis that the claim was untimely served (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]).
Based on the foregoing, claimant's motion no. M-95699 for summary judgment is denied and defendant's cross motion no. CM-95941 for summary judgment is granted and claim no. 132536 is dismissed.
January 25, 2021
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Claimant's notice of motion no. M-95699 and affidavit of Leo Duchnowski sworn to June 6, 2020, with annexed Exhibits; 2. Claimant's Memorandum of Law; 3. Defendant's Notice of Cross Motion no. CM-95941 and affirmation of Assistant Attorney General Tamara B. Christie dated September 1, 2020, with annexed Exhibits, and supporting affidavit of Corey Bedard sworn to August 6, 2020, with annexed Exhibits; 4. Defendant's Memorandum of Law.