Opinion
# 2016-029-083 Claim No. 125854
10-26-2016
BRIDGET OSBOURNE v. THE STATE OF NEW YORK
BRIDGET OSBOURNE, PRO SE ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Joseph E. Scolavino, Assistant Attorney General
Synopsis
After a video trial, the State was found liable for wrongful confinement of claimant while she was an inmate at Bedford Hills Correctional Facility. The court awarded claimant damages of $10.00 per day of confinement, for a total of $300.00. Claimant proved by a preponderance of the evidence that positive urinalysis tests conducted in violation of defendant's rules and regulations violated claimant's right to due process. The errors undermined the validity of the drug use charge against claimant. The State was found not liable for claim of defamation.
Case information
| UID: | 2016-029-083 |
| Claimant(s): | BRIDGET OSBOURNE |
| Claimant short name: | OSBOURNE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125854 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | BRIDGET OSBOURNE, PRO SE |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Joseph E. Scolavino, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 26, 2016 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate at the Bedford Hills Correctional Facility, alleges that members of the prison staff were negligent in the operation and maintenance of accurate urinalysis testing procedures and equipment, the training of personnel to follow proper testing procedures, and the maintenance of accurate paperwork. Claimant also asserts causes of action for wrongful confinement, false imprisonment, slander and defamation of character. Defendant denies the allegations in a verified answer containing fourteen affirmative defenses, the second of which pleads governmental function immunity.
Claimant represented herself at trial and testified on her own behalf. Defendant called Correction Officer Hazzard as a witness. Documents admitted as claimant's Exhibits 1 - 6 include: an Urinalysis Testing Directive; a Witness Interview Notice; two Superintendent Hearing Dispositions; a Notice of Reversal; and a Memorandum of Superintendent's Hearing Reversal. Documents admitted as defendant's Exhibits A - B and D - F include: a Request for Urinalysis Test (admitted during claimant's case); an Urinalysis Procedure Form; Specimen Results; an Inmate Misbehavior Report; and a Superintendent Hearing Disposition.
Sgt. Dean Rabadiu testified during claimant's case that defendant's Exh. C was a printout showing drug testing results, but he did not recognize the specific document and results. The document was not admitted.
Claimant testified as follows:
On October 20, 2014, twenty-three days after claimant's urine was taken for testing, claimant received a ticket charging her with having the drug K2-2 in her urine. After a hearing, she was found guilty by the hearing officer and was given 30 days keeplock and loss of privileges. She is not a drug user and does not take drugs. She appealed on November 16, 2014, but it was intercepted by the Superintendent who requested a reversal and a rehearing, so her appeal was not heard. The request was made without her consent. The request was granted on November 17, 2014. Claimant was re-served with a ticket, found guilty at the rehearing by the same hearing officer, and was given 20 days keeplock and loss of privileges; she had already served 10 days. Claimant alleges she did not have a fair hearing and numerous mistakes were made. The operator stated the urine was tested in "2018." Dates on the vials are supposed to be the same, but they were not. There was conflicting timing as to when the urine was taken out of the freezer. The reagent used by the operator had expired 9½ years earlier.
On cross-examination, claimant testified that she had not filed an Article 78 petition. When she gave her urine sample, she was asked whether she was taking any medicine. She said she was and it was in her file. The officer did not ask her what medicine she was taking.
Directive No. 4937 of the Department of Corrections and Community Supervision ("DOCCS"), titled "Urinalysis Testing," provides on page 4 at ¶ G(1)(d): "If a positive result is obtained on the first test, the procedures followed and the results obtained shall be noted by the operator on Form #2083.1, 'Urinalysis Procedure Form.' A second test shall be performed on the same sample" (Exh. 1). That same directive provides on page 6 under the caption "Reagents": "3. For each test, use reagent vials that have the same lot number and that have been stored under the same conditions" (Exh. 1).
The Witness Interview Notice (Exh. 2) is dated "11/10/16" and notes that a medical witness requested by claimant testified outside of her presence, and that claimant was not permitted to review the testimony of the witness because "medical testimony is confidential."
The Superintendent Hearing Disposition (Exh. 3) provides that: the first ticket was delivered on October 21, 2014; the hearing started on November 3, 2014 and ended on November 10, 2014; claimant was found guilty of drug use on November 10, 2014; the penalty imposed was 30 days in keeplock and 30 days loss of privileges starting November 10, 2014; and the evidence relied on was confidential medical testimony. A second Superintendent Hearing Disposition (Exh. 4) provides on page 1 that: a ticket charging Drug Use was delivered to claimant on November 19, 2014; a hearing before the same hearing officer took place from November 25, 2014 to December 1, 2014; claimant was found guilty; and the penalty imposed was 20 days loss of privileges. A penalty of 10 days keeplock is stated, without a start or end date. Page 2 of the form provides an earlier start date for the hearing, November 3, 2014, which is the date the first hearing began.
Other than "C.O." the name of the witness is too faint for the court to read.
Claimant's Exhibit 4 and Defendant's Exhibit F are identical. --------
The Review of Superintendent's Hearing (Exh. 5) provides that claimant's guilty disposition was reversed by the Acting Director on January 15, 2015. A Memorandum from the Acting Director to the Superintendent dated January 15, 2015 (Exh. 6) directs expungement of all records containing references to the hearing, and states the reason for the reversal: "The charge of 113.24 was inappropriately utilized."
C.O. Hazzard testified as follows:
C.O. Hazzard has been at Bedford for over ten years, and she has been performing urinalysis testing for over five years. The machine will not run unless it is calibrated correctly.
She mistakenly put down 2018 instead of 2014 on the Request for Urinalysis Test (Exh. A) as the year she tested claimant's urine sample. She put down 2005 as the expiration date for the reagent, when she should have put down the date on the bottle. She did not recall the date on the bottle. The reagent used for each test does not have to have the same lot numbers if the first test comes back positive.
On cross-examination, the officer testified that she was not sure when she had training or if she had retraining. She was not familiar with the document admitted as claimant's Exhibit 1, DOCCS Directive No. 4937 on urinalysis.
The Request for Urinalysis Test (Exh. A) provides that: on September 27, 2014, claimant submitted a urine sample for routine testing; claimant had recently taken medicine (unspecified on Exh. A); claimant's urine sample was removed from the freezer on October 20, 2014 at 7:14 p.m., then tested twice on October 20, "2018" by C.O. Hazzard.
The Urinalysis Procedure Form (Exh. B) provides that the expiration date for the reagent being used was "01/31/05," and the urine sample was removed from the freezer at 6:03 p.m. The stamped date at the top of the form is "Oct 01 2006." The untitled Bedford laboratory printout (Exh. D) shows a "measurement" date of October 20, 2014 for both tests, and the results of the tests as positive for K2-2 at "10.8" and "10.2," with a cut-off at "10."
The Misbehavior Report (Exh. E) charges claimant with drug use in violation of 113.24 based on positive readings for K2-2 resulting from urinalyses done on October 20, 2014. The date of the incident is reported as October 20, 2014. Exhibit F is a clearer copy of the second hearing disposition sheet that shows claimant received a penalty of 10 days keeplock but does not include a start or release date for the confinement.
To establish that she was wrongfully confined, claimant must prove that "(1) the defendant intended to confine [her], (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; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).
At trial, defendant argued that claimant failed to prove she had been confined. The court disagrees, and finds claimant has proved by a preponderance of the evidence that she was confined for at least 30 days. Claimant's first hearing started on November 3, 2014. On November 10, 2014 she was found guilty and given a penalty of 30 days keeplock confinement from November 10, 2014 until December 10, 2014. 7 NYCRR § 251-1.6(e)(2)(ii) provides that inmates are to be confined when "directed by a decision in a disciplinary superintendent's hearing." The second disposition sheet dated December 1, 2014 does not contain a direction that claimant be released, and there is no start or end date provided for the 10 days keeplock set forth in the penalty section, whereas start and end dates are provided for the additional penalties of lost privileges. The rational conclusion to be drawn is that claimant was to serve another 10 days in keeplock, or the remainder of her first penalty. Claimant testified that she had spent 10 days in keeplock when she had her rehearing, and she was given another 20 days after again being found guilty. This differs in some respects from the dispositions, but the length of her confinement is the same - 30 days.
There is no dispute that claimant was conscious of, and did not consent to, the confinement which leaves whether she has shown that the State was not "otherwise privileged." Defendant has raised privilege and immunity as an affirmative defense, but claimant has the burden to prove all the elements of her claimed causes of action.
The law governing State liability for wrongful or excessive confinement of an inmate pursuant to a disciplinary charge was set forth in Arteaga v State of New York (72 NY2d 212, 219 [1988]):
[A]ctions of Correction Department employees in preparing and filing misbehavior reports, confining inmates, and making dispositions following Superintendents' hearings entail discretionary decisions in furtherance of general policies and purposes where the exercise of reasoned judgment can produce different acceptable results . . . We conclude, then, that actions of correction employees, in circumstances such as those here, are quasi-judicial in nature and deserving of absolute immunity.
Although the court characterized the immunity applicable to disciplinary confinements as "absolute," it noted that such was the case only where the confinement is fully in conformity with all appropriate directives and statutes. In Arteaga, the court noted "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 221) - thus carving out a limited exception in cases where an inmate's confinement arose from a proceeding where his rights were not observed (see Boatwright v State of New York, UID No. 2013-041-017 [Ct Cl, Milano, J., Apr. 18, 2013] [to abrogate State's absolute immunity under Arteaga, "[t]he rule or regulation [at issue] must implicate minimal due process protections"]).
In the context of confinement pursuant to a prison disciplinary proceeding, such confinement is "privileged to the extent that it was under color of law or regulation, specifically in accordance with [inmate misbehavior] regulations" (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]). If, however, prison officials fail to comply with one of the rules or regulations governing such disciplinary hearings, absolute immunity is lost and liability may be imposed if it is proven that the regulatory violation caused actual injury to the inmate (see Rivera v State of New York, UID No. 2006-028-008 [Ct Cl, Sise, P.J., Feb. 8, 2006], citing Vasquez v State of New York, 10 AD3d 825 [3d Dept 2004]; Henderson v Coughlin, 163 Misc 2d 20 [Ct Cl 1994]).
This court does not have jurisdiction to review the merits of the disposition, which has already been reversed by the Acting Deputy. Rather, the inquiry is whether claimant established that defendant violated its own policies or regulations, and whether the violations impacted her due process or other constitutional rights and caused her injury. If successful, then defendant would not be otherwise privileged, and cannot rely on its defense of immunity.
Beginning with the reversal of claimant's second disposition, the reason given by the Acting Director was that the charge was "inappropriate," which in this context the court understands to mean the charge was wrong or incorrect. No alternative charge is suggested, indicating that it was wrong to charge claimant with drug use at the outset. But for the wrong charge, she would not have been confined.
Claimant has also shown that the positive tests on which the wrong charge was based, and the subsequent guilty dispositions, were obtained in violation of defendant's regulations and claimant's rights. DOCCS Directive No. 4937 (Exh. 1) provides that: "[t]he individual performing the urinalysis testing shall have been appropriately trained in the use of the testing apparatus" (at page 4, ¶ G[1][C]); "[f]or each test, use reagent vials that have the same lot number" (at page 6, "Reagents," 3).
The Arteaga decision instructs that the immunity shielding prison officials from tort liability is "absolute when the action involves the conscious exercise of discretion of a judicial or quasi-judicial nature" (72 NY2d at 216). Here, C.O. Hazzard was not acting in compliance with the governing policies, and her errors in the performance of the urinalysis undermined the validity of the charge on which the subsequent disciplinary hearing was based (see Crenshaw v State of New York, UID No. 2013-041-071 [Ct Cl, Milano, J., Nov. 26, 2013] [granting claimant summary judgment on wrongful confinement claim where disciplinary hearing based solely on evidence obtained by defendant in violation of its own policies and procedures]).
Claimant proved that C.O. Hazzard used reagent from different lot numbers for the tests (Exh. B), that the reagent used for the tests had expired (Exh. B), that the officer wrote down different times for when she removed the urine sample from the freezer (Exhs. A, B), and wrote down "10/20/18" as the date she tested it (Exh. A). The officer testified at trial that the discrepancies were clerical errors. However, she also testified that she was not familiar with the actual DOCCS directive on urinalysis testing, that she did not recall when she had been trained or if she had been given retraining. Further, defendant failed to explain why the 2005 date the officer wrote down as the expiration date for the reagent should not be considered the correct date. The officer's violations of the Directive, and her negligence in conducting the urinalysis violated claimant's right to due process and a fair proceeding resulting in what the Acting Deputy found to be an inappropriate charge of drug use.
Claimant also argued that the hearing officer violated her right to access testimony of a witness on which he relied to find her guilty, and that the Superintendent violated her right to have her first appeal decided. Although the hearing officer violated both 7 NYCRR §§ 254.5(b) and 254.6(a)(2) by taking and relying on "confidential medical testimony" without recording it or finding that institutional safety or correctional goals would be jeopardized, the violation "may not form the basis for a wrongful confinement claim" (Bethune v State of New York, 50 Misc 3d 1216 (A) [Ct Cl 2015] [finding that a regulatory violation impacting right to confront and cross-examine witnesses excluded from minimal due process protections afforded to inmates]). As for the Superintendent's sua sponte decision to have the charge reheard, claimant has not submitted evidence that the decision violated a DOCCS policy or regulation.
Defendant is liable for the claim of wrongful confinement for a period of thirty days and shall pay $10.00 per day for a total of $300.00.
As to the claim for defamation, "In New York, statements made by Hearing Officers, parties, attorneys and witnesses in the course of a quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issues to be resolved in the proceeding" (Vogel v State of New York, 187 Misc 2d 186 [Ct Cl 2000] [citations omitted]; see Arteaga v State of New York, 72 NY2d 212, 219 [1988]). Defendant is not liable for the claim of defamation.
Accordingly, the court finds that claimant is entitled to judgment in the sum of $300.00. To the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2). The Clerk of the Court shall enter judgment accordingly.
October 26, 2016
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims