Opinion
# 2019-059-013 Claim No. 131422 Motion No. M-94249 Cross-Motion No. CM-94877
09-27-2019
ELVIN MUNIZ v. THE STATE OF NEW YORK
ELVIN MUNIZ, pro se HON. LETITIA JAMES, ATTORNEY GENERAL By: Dorothy M. Keogh, Assistant Attorney General
Synopsis
Case information
| UID: | 2019-059-013 |
| Claimant(s): | ELVIN MUNIZ |
| Claimant short name: | MUNIZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131422 |
| Motion number(s): | M-94249 |
| Cross-motion number(s): | CM-94877 |
| Judge: | MAUREEN T. LICCIONE |
| Claimant's attorney: | ELVIN MUNIZ, pro se |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL By: Dorothy M. Keogh, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 27, 2019 |
| City: | Central Islip |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
By claim filed May 11, 2018, claimant Elvin Muniz, an inmate housed in Sing Sing Correctional Facility, seeks to hold defendant State of New York liable for monetary damages for his alleged wrongful confinement. Specifically, the claim alleges that on May 2, 2017 Muniz was wrongfully and intentionally confined for 47 days following a superintendent's tier III hearing.
An inmate misbehavior report ("IMR") was issued charging Muniz with the following prison disciplinary rule violations: conspiracy to introduce drugs (113.25); soliciting other to smuggle contraband (114.10); visiting procedure (180.10); and violating phone system (121.12) (Def. Aff., Ex G). He was found guilty of drug possession, and smuggling, and not guilty for the phone program violation and the facility visiting violation (id., Ex. H). He was sentenced to 60 days of keeplock, and a concurrent loss of various privileges, commencing on May 2, 2017 (id.). As noted above, the claim states that he served 47 days of the sentence.
The claim alleges four causes of action that concern procedural irregularities that surrounded the tier III hearing.
Claimant now moves the Court for an Order pursuant to CPLR 3124 compelling Defendant to respond to certain discovery demands. The State opposes and cross- moves to dismiss all causes of action pursuant to CPLR 3211 (a) (2), and (a) (7), and Court of Claims Act 11 (b).
Defendant's alternate ground for dismissal made pursuant to CPLR 3211 (a) (1) is untimely as the State's answer has already been served (see CPLR 3211 [e]; see also Hendrickson v Philbor Motors, Inc., 102 AD3d 251, 257 [2d Dept 2012] [motion made under CPLR 3211 (a) (1) untimely because answer to complaint already served]).
The Court will first address defendant's cross motion, as it is dispositive of the claim.
Defendant's application is supported by the affirmation of an assistant attorney general, to which are attached a number of exhibits (Keogh Aff., Ex. G). Defendant advances three separate grounds for dismissal of the claim: 1) the claim fails to satisfy the pleading requirements of Court of Claims Act § 11 (b); 2) the claim fails to state a cause of action; and 3) the State is entitled to absolute immunity under Arteaga v State of New York (72 NY2d 212 [1988]).
First, the State argues that the Court lacks subject matter jurisdiction over the claim because claimant failed to satisfy the pleading requirements of Court of Claims Act § 11 (b) by failing to set forth the date the claim accrued or the basis for the contention that a due process safeguard was violated or that the outcome of the tier III hearing would have been different if no such violation occurred.
Section 11 (b) of the Court of Claims Act provides in relevant part: "The claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained . . . ." The purpose of this requirement is "to enable the State . . . to investigate the claim promptly and to ascertain its liability under the circumstances" (Lepkowski v State of New York, 1 NY3d 201, 207 [2003], quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). A claim need not be pled with "absolute exactness" (see Santos v State of New York, 291 AD2d 851, 851 [4th Dept 2002]; Wharton v City Univ. of N.Y., 287 AD2d 559, 559 [2d Dept 2001]). However, conclusory or general allegations of negligence do not suffice (see Grumet v State of New York, 256 AD2d 441, 442 [2d Dept 1998]), and the State is not required "to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1 NY3d 201, 208 [2003]). Failure to satisfy the substantive pleading requirements of Court of Claims Act § 11(b) is a jurisdictional defect that requires dismissal of the Claim (see Kolnacki v State of New York, 8 NY3d 277, 281 [2007] ["nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary"]).
A cause of action for wrongful confinement accrues when the claimant is released from confinement (see Davis v State of New York, 89 AD3d 1287 [3d Dept 2011] ["wrongful confinement or false imprisonment . . . are reasonably ascertainable upon a claimant's release from confinement and, therefore, it is on that date that the claimant's cause of action accrues"]).
Here, the claim alleges that Muniz was "placed in confinement at the conclusion of the hearing on May 2, 2017 (Claim ¶ 4[a,i]), and confined for 47 days (id. ¶ 2). In his "Reply" to the cross motion, claimant clarifies that he was wrongfully confined from May 2, 2017 thru June 18, 2017 (Cl. Reply ¶ 19), which is 47 days from his initial confinement.
The Court concludes that the claim alleges sufficient facts from which the date of accrual may be inferred. The allegation setting forth the date of the initial confinement coupled with number of days of confinement, satisfies the pleading requirements of section 11 (b) (see Epps v State of New York, 199 AD2d 914, 914 [3d Dept 1993]; see also Hart v State of New York, UID No. 2019-028-509 [Ct Cl, Sise, P.J., Mar. 15, 2119] [the date of claimant's release from confinement - or even a range of dates - should be set forth"]; Anekwe v State of New York, UID No. 2017-038-575 [Ct Cl, DeBow, J., Oct. 10 2017] [the "statute's requirement that the claim state the 'time when' the claim arose has been interpreted to be satisfied by a range of dates"]). This is not an instance where defendant is required to ferret out information to determine the time when the claim arose.
The second, and third grounds for dismissal are interrelated and therefore will be addressed together. The State argues that the claim fails to state a cause of action because claimant's confinement was privileged as it was accomplished in accordance with DOCCS regulations. Therefore, defendant asserts, that it is entitled to absolute immunity under Arteaga v State of New York (72 NY2d 212 [1988]).
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 a special housing unit following a disciplinary hearing, Muniz 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, 72 NY2d at 219-220]). 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 due process safeguards (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]).
In support of its application pursuant to dismiss the claim CPLR 3211 (a) (7), defendant has submitted the IMR at issue and the Hearing Disposition rendered after the tier III hearing, as well as responses to interrogatories made by three correction officers involved in conducting the tier III hearing (Def. Aff. Exs. G, H).
These documents are incorporated by reference in the causes of action set forth the claim.
On a motion to dismiss a claim pursuant to CPLR 3211 (a) (7), the Court is required to
"accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Further, "[w]here evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the [claimant] has a cause of action, not whether the [claimant] has stated one, and unless it has been shown that a material fact as claimed by the [claimant] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Rabos v R&R Bagels & Bakery, Inc., 100 AD3d 849, 851-852 [2d Dept 2012]).
In the first cause of action, claimant alleges that on March 12, 2017 he was issued an IMR that failed to meet the requirements of 7 NYCRR 251-3.1 (c) (1) - (4). With respect to this cause of action, the Court concludes that claimant's bald, conclusory assertion that the IMR did not comply with the requirements of 7 NYCRR 251-3.1 [c] is belied by the record. Rather, the IMR which alleged, among other things, the particulars of the incident and the time, location and date on which it occurred, was sufficiently specific to apprise claimant of the charges and to allow him to prepare a meaningful defense (see 7 NYCRR 251-3.1 [c]; Matter of Harris v Annucci, 148 AD3d 1385, 1387 [3d Dept 2017]).
As to the second cause of action, the claim alleges that "[n]owhere on the [IMR], the recorded phone conversation, the testimony of the author of the [IMR] or the disposition are Drugs mention or referred to." Claimant, however, does not assert a specific violation of any rule or regulation and therefore fails to state a cause of action (see e.g. Robinson v State of New York, UID No. 2019-038-522 [Ct Cl, DeBow, J., Apr. 11, 2019] [claim fails to state a cause of action, "it does not state which of the applicable rules or regulations were violated by corrections officials"]). Moreover, absent an allegation of a violation of a specific due process safeguard defendant's absolute immunity is retained (id.). In any event, despite claimant's allegation that there was no references made to drugs in the IMR or disposition, the IMR states that claimant was charged with conspiring to introduce drugs, and the Hearing Disposition states that "Isabel Muniz signed a document stating that inmate Muniz solicited Isabel to bring marijuana into the facility."
With regard to the third cause of action, claimant alleges that his rights were violated under 7 NYCRR 254.6 (a) (3), because he was denied relevant documents he requested prior to the hearing. Specifically, it is alleged that:
"The hearing disposition clearly states the hearing officer took a statement from the claimant's wife into evidence without reviewing or producing said alleged statement at the hearing or providing the claimant the opportunity to review or question it"
(Claim ¶ 5.a,i).
Section 254.6 (a) (3) provides as follows:
"The inmate when present may reply orally to the charge and/or evidence and shall be allowed to submit relevant documentary evidence or written statements on his or her behalf."
In the context of the State's absolute immunity, not all disciplinary hearing procedural rules and regulations, if violated, form a basis to abrogate that immunity. Rather, the rule or regulation must implicate minimal due process protections (see Carrasco v State of New York, UID No. 2017-041-069 [Ct Cl, Milano, J., Oct. 2017]). Such protections includes a hearing with advance written notice of the charges, the right to call witnesses and present documentary evidence, and the right to a written statement of the evidence relied on and the reasons for the disciplinary action taken (see Wolff v McDonnell, 418 US 539, 563-570 [1974]). However, there is no right to counsel or to confrontation at prison disciplinary hearings ( see Sira v Morton, 380 F3d 57, 69 [2d Cir 2004]).
In Matter of Hillard v Coughlin (187 AD2d 136, 140 [3d Dept 1993], lv denied 82 NY2d 651[1993]), the Third Department ruled that the denial of an inmate's request to view certain evidence "implicated only the right to confrontation and cross-examination, expressly excluded from the panoply of inmate due process rights" (see also Wolff, 418 US at 567-568; Matter of Jones v Fischer, 110 AD3d 1295 [3d Dept 2013], citing Hillard, 187 AD2d at 140). As a result, a violation of this right may not form the basis for a wrongful confinement claim.
The fourth cause of action alleges that Muniz was wrongfully confined because of the defective IMR and in violation in violation of 7 NYCRR 251-1.6 (a). The claim seems to assert that claimant was not confined after he was charged by the IMR, but that following the hearing he was confined even though he did not represent anymore of a threat to safety and security then he had been when the charges were pending.
Section 251-1.6 (a) provides:
"Where an officer has reasonable grounds to believe that an inmate should be confined to his cell or room or housing area because he represents an immediate threat to the safety, security or order of the facility or in immediate danger to other persons or to property, such officer shall take reasonable and appropriate steps to so confine the inmate."
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, 908 [3d Dept 2006] [quotations and citations omitted]).
The Court concludes that this rule and regulation has no bearing to the present matter as there is no allegation that claimant was confined to keeplock by a correction officer pre-hearing.
In view of the foregoing, it is
ORDERED that defendant's cross motion no. CM-94377 is granted and claim no. 131422 is hereby dismissed; and it is further
ORDERED that claimant's motion no. M-94249 is denied as moot.
Papers Considered:
1. Claimant's Notice of Motion to Compel Compliance and Disclosure, and Affidavit in Support of Motion to Compel Compliance & Disclosure.
2. Defendant's Notice of Cross Motion, Affirmation in Opposition to Motion to Compel Compliance and Disclosure and in Support of Cross Motion to Dismiss, and attached exhibits.
3. Claimant's Reply to Cross Motion Affirmation in Opposition to Motion to Compel Compliance and Disclosure and in Support of Cross Motion to Dismiss.
September 27, 2019
Central Islip, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims