Stewart v State of New York

[*1] Stewart v State of New York 2016 NY Slip Op 51290(U) Decided on May 20, 2016 Court Of Claims Marin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 20, 2016
Court of Claims

Al-fatah Stewart, Claimant,

against

The State of New York, Defendant.



127136



For Claimant:

Al-fatah Stewart, Pro se

For Defendant:

Eric T. Schneiderman, Attorney General

By: Douglas H. Squire, AAG
Alan C. Marin, J.

Claimant Al-fatah Stewart moves here for summary judgment on his claim arising from confinement in the special housing unit ("SHU") of Sullivan Correctional Facility on September 9, 2015. The defendant State of New York opposes the motion and moves for dismissal.

The Sullivan facility placed Mr. Stewart in SHU because officers who searched his cell on September 9 reported that they found contraband hidden in an air vent: "a 7-1/4- inch long tooth brush, sharpened to a point on one end, and masking tape wrapped around the other end, forming a handle" (defendant's Affirmation, exhibit A).

Mr. Stewart was issued an Inmate Misbehavior Report, in which he was cited for

violating rules for possessing a weapon (113.10), altering an item (113.11), possessing contraband (113.23) and tampering with property (116.11).[FN1]

Claimant was released from confinement on October 22, 2015 when found not guilty of all charges at a superintendent's hearing (id., exhibit B). The certified document that is exhibit B is one page and shows only the disposition; there is no discussion of the basis for the findings.

Mr. Stewart contends in his claim that the sharpened toothbrush (which claimant describes as a "weapon") was planted in his cell by Officer Perry. To support his argument, claimant offers the logs and Misbehavior Report, which give a detailed description of the fashioned weapon - - Stewart says before it was discovered. Claimant sets out the timeline as follows:

9: 10 a.m. The Area Logbook entry by C.O. Genovese states: "9:10 yard run/co's Santana, Perry, Sandell on unit for one cell search D-south 120 stewart 900A2144) weapon [f]ound" (Claim, exhibit A).

9:15 a.m. A separate document, the "search logbook," redacts two lines that cover other inmates, yielding a one-line entry which provides that in a search authorized by Sergeant Leconey, Officer Perry found a weapon in Stewart's cell at 9:15 (no a.m. or p.m. is given; id., exhibit C).

9:50 a.m. The Misbehavior Report states that "On the above date and approximate time, I, C.O. Perry assisted in a cell search of D-South 120 (Stewart 00A2144)." Entered in a box pre-printed with "Incident Time" (and the qualifier, "Approximately") is "9:50 am."

* * *

Claimant asserts causes of action for wrongful confinement and intentional infliction of emotional distress. As for the latter, such cause of action cannot, as a matter of law, be maintained against the State (Peterec v State of New York, 124 AD3d 858 [2d Dept 2015]).

* * *

The reversal of a disciplinary hearing and punishment against an inmate does not, by itself, mean that the inmate can sue the State for money damages for the period of confinement. (Arteaga v State of New York, 72 NY2d 212 [1988] ). The Arteaga case combined the lawsuits of two inmates, both of whom were disciplined by being placed in the special housing unit and then had their disciplines reversed. The Court of Appeals ruled that the courts below properly dismissed their claims for money damages that had been brought in the Court of Claims.

In Loret v State of New York, 106 AD3d 1159 (3d Dept 2013), lv denied 22 NY3d 852 (2013), the Third Department affirmed the Court of Claims' dismissal of an inmate's claim arising from his 30-day period of punitive confinement after he was found guilty of violating a facility rule. The disposition had been overturned by the Third Department in an Article 78 proceeding on the ground that "it was not supported by substantial evidence." Claimant then sued for damages in the Court of Claims, where his claim was dismissed on the ground that defendant was entitled to absolute immunity. Claimant appealed the dismissal to the Third Department where he alleged that correctional facility employees had violated their own rules and regulations in connection with the disciplinary proceeding. The Third Department held that:

"Here, claimant has not articulated any facts to support his claim that the correctional facility employees responsible for his discipline acted in excess of their authority or in violation of any relevant rules or regulations. Indeed, this Court's annulment of the determination of claimant's guilt was based upon a finding that it was not supported by substantial evidence, not upon any finding that the correctional facility employees acted in excess of their authority or departed from any applicable statutory or regulatory direction . . . Accordingly, the Court of Claims properly determined that defendant was entitled to absolute immunity and dismissed the claim . . ."

[106 AD2d at 1159-1160 (citations omitted)].

This Court, in another SHU confinement case that was ultimately reversed, stated: " In Mr. Cross' case, his right to due process was not violated: the hearing was conducted in accordance with the rules set forth in 7 NYCRR, subchapter A (parts 250 through 254)" (Cross v State of New York, UID No. 2016-016-003 [Ct Cl, Marin, J., January 5, 2016]).

But Mr. Stewart raises an issue as to whether the rules were followed in the search of his cell. Arguably, the Misbehavior Report talks about observing that the grate on the air vent was missing a screw, calling the "I.D. officer" down to photograph it, then removing two more screws, loosening another and swiveling the gate so that the sharpened toothbrush could be removed and secured in a contraband drop box. This sounds like it would take some time, and could account for the 35 or 40 minutes between the 9:10/ 9:15 log entries and the 9:50 a.m. time in the Misbehavior Report. The Court concludes that a triable issue of fact thereon exists and thus a motion for summary judgment - - from either party - - cannot succeed (Winegrad v New York University Medical Center, 62 NY2d 851 (1985).

* * *

In view of the foregoing, and having considered the parties' submissions,[FN2] IT IS ORDERED that motion No. M-88211 is denied, and cross motion No. CM-88399 is denied, except that such portion of the cross motion that seeks dismissal of the cause of action for intentional infliction of emotional distress is granted.

May 20, 2016

New York, New York

ALAN C. MARIN

Judge of the Court of Claims Footnotes

Footnote 1:These rules, the Institutional Rules of Conduct, are found in 7 NYCRR § 270.2.

Footnote 2:The following were reviewed: From claimant - - a Notice of Motion for Summary Judgment and an Affidavit of Plaintiff in Support of Motion for Summary Judgment; a Notice of Reply to Cross-Motion and Reply to Cross-Motion (with exhibits A through Z and AA through DD). From defendant - - a Notice of Cross-Motion and an Affirmation in Opposition to Claimant's Motion for Summary Judgment and in Support of Defendant's Motion for Summary Judgment (with exhibits A through C).