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Pettigrew v. State

New York State Court of Claims
Apr 21, 2014
# 2014-041-026 (N.Y. Ct. Cl. Apr. 21, 2014)

Opinion

# 2014-041-026 Claim No. None Motion No. M-84604

04-21-2014

DAVID PETTIGREW v. THE STATE OF NEW YORK

DAVID PETTIGREW Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael T. Krenrich, Esq. Assistant Attorney General


Synopsis

Application to file late claim alleging wrongful confinement resulting from prison disciplinary hearing and/or involuntary protective custody referral is denied as allegations fail to show that a valid cause of action exists.

Case information

UID:

2014-041-026

Claimant(s):

DAVID PETTIGREW

Claimant short name:

PETTIGREW

Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

None

Motion number(s):

M-84604

Cross-motion number(s):

Judge:

FRANK P. MILANO

Claimant's attorney:

DAVID PETTIGREW Pro Se

Defendant's attorney:

HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Michael T. Krenrich, Esq. Assistant Attorney General

Third-party defendant's attorney:

Signature date:

April 21, 2014

City:

Albany

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant, an inmate at Coxsackie Correctional Facility, moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6). Defendant opposes the motion.

The proposed claim essentially alleges that claimant was twice wrongfully confined by defendant: First, as a result of a keeplock penalty imposed after a finding of guilt at claimant's disciplinary hearing held on April 3, 2013 at Clinton Correctional Facility in which claimant asserts he did not receive a fair hearing because claimant was allegedly improperly denied from offering the testimony of an inmate witness; and second, because claimant was placed in involuntary protective custody for 22 days as a result of an alleged threat against a fellow inmate contained in a letter, dated April 18, 2013, sent to the defendant's Director of Guidance and Counseling.

Court of Claims Act § 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules."

The proposed claim alleges a cause of action sounding in wrongful confinement and such a claim accrues on "the date on which [claimant's] confinement terminated" (Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 [2005]), which, necessarily, was sometime after May 2, 2013, at the earliest. CPLR § 215 (3) provides a one-year period to commence an action for false imprisonment/wrongful confinement and the application is not time-barred by CPLR Article 2.

In determining the application, Court of Claims Act § 10 (6) provides that:

"[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."

In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).

Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).

Claimant's excuse for allegedly failing to timely file and serve a claim amounts to ignorance of the law and lack of access to a law library. Neither ignorance of the law nor "conclusory allegations that one is incarcerated and without access to legal references" constitute a reasonable excuse for untimely filing and service (Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002]).

Although claimant has failed to offer a reasonable excuse for his failure to timely file and serve the claim, "the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief" (Bay Terrace Coop. Section IV, Inc., 55 NY2d at 981).

The Court finds that the relatively short period of time which elapsed between the accrual date (sometime after May 2, 2013), and service of the application on or about January 30, 2014, together with the presumed existence of disciplinary hearing records, provide defendant ample opportunity to timely investigate the claim as the "delay was minimal and the respondent was not prejudiced thereby" (Matter of Hughes v State of New York, 25 AD3d 800 [2d Dept 2006]). In this regard, it is generally recognized that prejudice is more likely to result where a proposed claim involves conditions (such as ice or snow) which are "transitory in nature" Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]). The proposed claim does not arise from a transitory condition.

Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."

To establish that he was wrongfully confined, 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; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).

The keeplock confinement imposed after claimant's disciplinary hearing will be considered first. The inmate misbehavior report charged claimant with creating a disturbance and refusing a direct order of a correction officer. According to claimant, an inmate named Powless was directly involved in the charge against claimant of creating a disturbance. Claimant sought to have Powless testify at the hearing but Powless refused.

Claimant was found guilty of both charges and a penalty of 30 days keeplock, among other things, was imposed.

Where employees of the Department of Corrections and Community Supervision, in commencing and conducting formal inmate disciplinary proceedings, "act under the authority of and in full compliance with the governing statutes and regulations . . . their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity" (Arteaga v State of New York, 72 NY2d 212, 214 [1988]; Varela v State of New York, 283 AD2d 841 [3d Dept 2001]). This immunity attaches even if the conviction is later reversed administratively or as the result of a successful article 78 proceeding (see Arteaga, 72 NY2d at 215).

If, however, prison officials fail to comply with a rule or regulation governing such disciplinary hearings, absolute immunity may be lost and liability may be imposed if it is proven that the regulatory violation caused actual injury to the inmate (Rivera v State of New York, UID #2006-028-008, Claim No. 102781 [Ct Cl, Feb. 8, 2006], Sise, PJ, citing Vasquez v State of New York, 10 AD3d 825 [3d Dept 2004] and Henderson v Coughlin, 163 Misc 2d 20 [Ct Cl 1994]).

Not all disciplinary hearing procedural rules and regulations, if violated, form a basis to abrogate the absolute immunity provided by Arteaga. The rule or regulation must implicate minimal due process protections:

"Notably, there is no right to counsel or to confrontation at prison disciplinary hearings. . . Nevertheless, an inmate is entitled to advance written notice of the charges against him; a hearing affording him a reasonable opportunity to call witnesses and present documentary evidence; a fair and impartial hearing officer; and a written statement of the disposition, including the evidence relied upon and the reasons for the disciplinary actions taken" (Sira v Morton, 380 F3d 57, 69 [2d Cir 2004]).

Claimant alleges that defendant, in conducting the disciplinary hearing and imposing the keeplock penalty, violated 7 NYCRR 253.5 (a), which provides that an:

"[I]nmate may call witnesses on his behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial, including the specific threat to institutional safety or correctional goals presented."

Although claimant apparently sought to call two inmate witnesses, his claim makes specific allegations about only one of these witnesses. That witness, inmate Powless, refused to testify, stating in writing on April 3, 2013 that "I don't want to be involved." The hearing officer at the disciplinary hearing stated this reason to claimant at the hearing. Claimant alleges that defendant violated 7 NYCRR 253.5 (a) by failing to state "the specific threat to institutional satefy [sic] or correctional goals" supporting the alleged denial of permission to call Powless as a witness.

In Matter of Hill v Selsky (19 AD3d 64, 67 [3d Dept 2005]), the court explained that:

"When an inmate witness previously agreed to testify, but later refuses to do so without giving a reason, we have consistently held that the hearing officer is required to personally ascertain the reason for the inmate's unwillingness to testify . . . A witness's statement that he '[did] not want to be involved' is not a sufficient reason to excuse a personal interview by the hearing officer."

Defendant correctly points out, however, that there is no allegation or proof that the witness in question "previously agreed to testify, but later refuses to do so without giving a reason" (19 AD3d at 67) and the Hill court reminds (19 AD3d at 66) that:

"When the refusing witness gives no reason for the refusal, but that witness did not previously agree to testify, an inquiry by the hearing officer through a correction officer adequately protects the inmate's right to call witnesses."

There is no credible allegation or any proof presented that defendant violated the regulation relied upon by claimant.

Claimant also alleges that he was improperly placed in Involuntary Protective Custody (IPC) based upon a letter he wrote, on April 18, 2013, to the defendant's Director of Guidance and Counseling. In that letter, claimant stated that:

"What I fear most is my temper, getting into a fight seriously hurting Mr. Powless or the possibility of killing him and spending the rest of my life behind bars for some scumbag and troublemaker that not worth my time and efford [sic]."

Claimant asserts that he was placed in IPC as "retaliation" for past disputes with certain correction officers and further claims that he should have been placed in IPC earlier, and released earlier, because he made the same statement about Powless at the disciplinary hearing on April 3, 2013.

Claimant adds that defendant violated 7 NYCRR 250.2, entitled "General policies on discipline of inmates" by using his statement about Powless with "malicious and retaliating intentional purposes."

The absolute immunity afforded to a quasi-judicial hearing, described above, applies to an "Administrative Segregation Hearing Determination" (Vogel v State of New York, 187 Misc 2d 186, 188 [Ct Cl 2000]).

Claimant has not identified any specific statute or regulation violated by defendant in conducting the IPC hearing and imposing the penalty which implicates the minimal due process requirement to provide a fair hearing as required by Sira.

Claimant offers no specific non-conclusory factual allegations, nor any cogent legal argument, sufficient to show that his placement in IPC was unlawful in any manner.

Based upon a balancing of the factors set forth in section 10 (6), the claimant's application is denied.

April 21, 2014

Albany, New York

FRANK P. MILANO

Judge of the Court of Claims

Papers Considered:

1. Claimant's Notice of Motion, filed February 7, 2014;

2. Affidavit of David Pettigrew, sworn to January 14, 2014, and annexed exhibits;

3. Affirmation of Michael T. Krenrich, dated February 11, 2014, and annexed exhibit.


Summaries of

Pettigrew v. State

New York State Court of Claims
Apr 21, 2014
# 2014-041-026 (N.Y. Ct. Cl. Apr. 21, 2014)
Case details for

Pettigrew v. State

Case Details

Full title:DAVID PETTIGREW v. THE STATE OF NEW YORK

Court:New York State Court of Claims

Date published: Apr 21, 2014

Citations

# 2014-041-026 (N.Y. Ct. Cl. Apr. 21, 2014)