Opinion
# 2019-059-032 Claim No. 133581 Motion No. M-94699
11-18-2019
DEREK A. HEYLIGER v. THE STATE OF NEW YORK
DEREK A. HEYLIGER, pro se HON. LETITIA JAMES, ATTORNEY GENERAL By: Dorothy M. Keogh, Assistant Attorney General
Synopsis
Case information
| UID: | 2019-059-032 |
| Claimant(s): | DEREK A. HEYLIGER |
| Claimant short name: | HEYLIGER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133581 |
| Motion number(s): | M-94699 |
| Cross-motion number(s): | |
| Judge: | MAUREEN T. LICCIONE |
| Claimant's attorney: | DEREK A. HEYLIGER, pro se |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL By: Dorothy M. Keogh, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 18, 2019 |
| City: | Central Islip |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
By claim filed September 4, 2019, claimant Derek A. Heyliger, an inmate proceeding pro se, seeks to hold defendant State of New York liable for his alleged wrongful confinement when housed in Sing Sing Correctional Facility ("Sing Sing"). Defendant makes this pre-answer motion to dismiss the claim pursuant to CPLR 3211 (a) (7) alleging that the claim fails to state a cause of action.
The claim makes the following allegations: On July 18, 2019, claimant was issued an inmate misbehavior report ("IMR") charging him with violation of rules 113.35 (drug possession) and 114.10 (smuggling). On the same day, claimant was issued a second IMR charging him with violation of rules 106.10 (refusal to obey a direct order), 107.10 (interference with an employee) 170.11 (verbal harassment), 180.14 (urinalysis testing violation) and 104.13 (creating a disturbance). Heyliger was placed on keeplock status pending the disposition of a disciplinary hearing.
The hearing arising out of the first IMR was conducted on July 23, 2019, at which time claimant was found guilty of drug possession and not guilty of the smuggling charge. The hearing officer imposed the following penalties: 30 days of keeplock, loss of packages, commissary, and phone, with a start date of July 18, 2019, and a release date of August 17, 2019. Fifteen days of the 30-day penalty was suspended, making the release date August 2, 2019.
The hearing arising out of the second IMR started and was completed on July 31, 2019, after which claimant was found guilty of creating a disturbance, interference with an employee, refusal to obey a direct order, urinalysis testing violation, and not guilty of harassment. The hearing officer imposed the following penalties: 13 days of keeplock loss of packages, commissary, and phone, with a start date of July 18, 2019, and a release date of July 31, 2019. In other words, time served. The claim alleges that Heyliger objected at the time of this hearing that it was untimely commenced in violation of the rule that provides that a disciplinary hearing be held within seven days of the pre-hearing confinement.
Claimant alleges that he was wrongfully confined in connection with the second IMR because the hearing was conducted more than seven days after his keeplock confinement started in violation of 7 NYCRR 251-5.1. Specifically, the claim alleges that the hearing officer who conducted the July 31 hearing "violated claimant[']s constitutional right to due process, as well as his regulatory right to a prompt hearing, all in relation to issuing a keeplock cell confinement between July 18 and July 31, 2019" (Claim ¶ 11). The claim goes on to allege that the result of the second hearing being untimely held he was required to serve the sentence of 30 days, 15 days suspended, handed down at the first hearing, not from July 18, but from July 31. In other words, claimant surmises that the penalties arising out of the IMRs would have run consecutively and not currently.
On a motion to dismiss a claim pursuant to CPLR 3211(a) (7) for failure to state a cause of action, the facts as alleged in the claim must be accepted as true, claimant is accorded the benefit of every possible favorable inference, and the court's function is to determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). However, bare legal conclusions, as well as factual claims that are merely speculative and inherently incredible are not presumed to be true and are not accorded every favorable inference (see Grant v DiFeo, 165 AD3d 897, 899 [2d Dept 2018]; Mira v Harder, 2019 WL 5876166 [1st Dept 2019]).
To prove a claim for wrongful confinement a claimant must establish that: "(1) the defendant intended to confine him, (2) [he] was conscious of the confinement, (3) [he] 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] [citations omitted]). In the context of an alleged wrongful confinement claim that is based on an inmate's placement in keeplock confinement as the result of a disciplinary hearing, a claimant must also "overcome defendant's immunity for quasi-judicial proceedings, by demonstrating that DOCCS officials did not comply with the rules and regulations governing the conduct of a hearing, in a manner that denied the prisoner his due process rights" (see Rosa v State of New York, UID No. 2014-049-054 [Ct Cl, Weinstein, J., Oct. 14, 2014], citing Arteaga v State of New York, 72 NY2d 212, 219-220 [1988]).
In Arteaga, the Court of Appeals held that the State had absolute immunity from liability in the area of prison discipline when its employees act under the authority of and in full compliance with the statutes and regulations (Correction Law §§ 112, 137; 7 NYCRR; parts 250-254), and their actions constitute discretionary conduct of a quasi-judicial nature (72 NY2d at 214; see also Davis v State of New York, 262 AD2d 887, 888 [3d Dept 1999]). The Arteaga Court stated, however, that actions of correction employees confining an inmate "without granting a hearing or other required due process safeguard (see, 7 NYCRR 251-5.1; parts 252-254) would not receive immunity" (72 NY2d at 221; see also Miller v State of New York, 156 AD3d 1067 [3d Dept 2017]; Bottom v State of New York, 142 AD3d 1314 [4th Dept 2016]).
However, not all rule and regulation violations implicate due process protections, and in turn, where there has been no due process violation the State retains its absolute immunity (see e.g. Ramirez v State of New York, UID No. 2018-040-036 [Ct Cl, McCarthy, J., Apr. 25, 2018], affd 175 AD3d 1635 [3d Dept 2019]; Bethune v State of New York, 50 Misc 3d 1216[A] [Ct Cl 2015]; Gifford v State of New York, UID No. 2015-049-024 [Ct Cl, Weinstein, J., March 31, 2015]; Amato v State of New York, UID No. 2014-041-038 [Ct Cl, Milano, J., June 26, 2014]).
As relevant here, 7 NYCRR 251-5.1 (a) provides a disciplinary hearing should be held within seven days of an inmate's confinement for a disciplinary infraction and 7 NYCRR 251-5.1 (b) provides that a hearing must be completed within 14 days following the writing of the misbehavior report. Here, the second hearing was commenced beyond the seven days, but completed within the 14 days.
These provisions of 7 NYCRR 251-5.1, however, are directory, not mandatary, and therefore the alleged violation of the regulation, does not in the absence of prejudice, form the basis for a wrongful confinement claim (see Miller, 156 AD3d at 1067; Davidson v State of New York, 66 AD3d 1089, 1090 [3d Dept 2009] ["the time requirements set forth in 7 NYCRR 251-5.1 are directory, not mandatory, and an inmate must demonstrate prejudice as a result of any delay prior to the commencement of such a hearing"]). In order to establish prejudice claimant must show that had the regulatory violation not occurred, the outcome of the hearing would have been different (see Watson v State of New York, 125 AD3d 1064 [3d Dept 2015]; Moustakos v State of New York, 133 AD3d 1268 [3d Dept 2015]).
Here, claimant does not allege that he was not guilty of the charges, nor does he assert that the outcome of the second hearing would have been different if held earlier. The statement in his claim that had the hearing officer sustained claimant's objection and dismissed the second hearing on the ground it was not conducted within seven days, he never would have been found guilty, is not an assertion of prejudice, but is a conjecture that seizes upon a technicality.
Moreover, claimant's allegation that his penalties would not have run consecutively had the second hearing been timely held is purely speculative and conclusory and is insufficient to state a cause of action for wrongful confinement. In any event, consecutive penalties of keeplock based on separate IMRs are authorized and therefore do not amount to prejudice (cf. Matter of Ramos v Goord, 309 AD2d 1096 [3d Dept 2003]; Lainfiesta v State of New York, UID No. 2012-028-002 [Ct Cl, Sise, P. J., Oct. 9, 2012]).
Accordingly, it is hereby
ORDERED that defendant's motion no. M-94699 is granted and claim no. 133581 is dismissed.
Papers Considered:
1. Defendant's Notice of Motion, Affirmation is Support of Defendant's Motion to Dismiss and annexed exhibit.
2. Claimant's Affirmation in Support of Claimant's Reply Response to Defendant's Motion to Dismiss.
November 18, 2019
Central Islip , New York
MAUREEN T. LICCIONE
Judge of the Court of Claims