Freeman v State of New York

[*1] Freeman v State of New York 2023 NY Slip Op 50995(U) Decided on August 31, 2023 Court Of Claims Vargas, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2023
Court of Claims

Brian Freeman, Claimant,

against

State of New York, Defendant.



Claim No. 134729


For Claimant:
Brian Freeman, Pro se

For Defendant:
Hon. Letitia James, Attorney General of the State of New York
By: Anthony J. Frank, Esq., Assistant Attorney General


Javier E. Vargas, J.

Claim No. 134729, 134748 [FN1]

This Court, having presided over the instant trial on June 22, 2023, having listened to the testifying witness, examined the pleadings and exhibits in evidence, and listened to the arguments raised during the trial, hereby makes these findings of fact and reaches the following conclusions of law.

I.

On May 26, 2020, Claimant Brian Freeman (hereinafter "claimant"), an incarcerated person in a State correctional facility, filed a Claim for wrongful confinement against Defendant State of New York (hereinafter "State"), alleging that beginning on November 5, 2019, while at the Woodbourne Correctional Facility (hereinafter "Woodbourne"), he was wrongfully accused and confined to a Special Housing Unit (hereinafter "SHU") for 70 days pursuant to an "erroneous" Inmate Misbehavior Report "based on unsubstantiated information and lies" of him [*2]possessing a weapon, and a subsequent, improperly conducted Tier III disciplinary hearing (Claim, May 26, 2020, ¶¶ 6[a], 8). Specifically, the Claim asserts the claimant never had any "contraband weapon or any kind of altered items," but instead the State used "faulty (illegal) procedures" (Claim, ¶ 7), and demonstrated a "negligen[t] failure to provide adequate hearing procedures under [T]itle 7 of corrections law" that resulted in his unlawful confinement (id. , ¶ 22). Ultimately, the claimant was found guilty and sentenced to 120 days in SHU, mitigated to 90, and ultimately reduced to 70 (id. ¶ 6[a]; Exhibit B at 4). As a result, the claimant seeks recovery of $60,000 in damages for "(a) severe [m]ental anguish, Psychological/emotional distress and trauma . . . (b) Physical and emotional suffering during and after the event. (c) Deprivation of constitutional rights" (Claim, ¶ 24[a-c]) caused by the Department of Corrections and Community Supervision ("DOCCS").

On November 29, 2019, the claimant submitted an appeal of his disciplinary hearing conviction to DOCCS Director of Special Housing/Inmate Discipline asserting he "got charge[d] with [having] a weapon that wasn't even [his]", "don't have a copy of the picture of the weapon" during the hearing, and when he "told the hearing officer [']where is the picture[',] he told [the claimant] to be qui[et]...I'm not saying that the officer set me up but an inmate did" (Exhibit B, at 3). On January 31, 2020, DOCCS reversed the disciplinary hearing decision and ordered it expunged from the claimant's record for "Failure to maintain relevant evidence" regarding no "photo of the weapon" or "chain of custody" ( Exh. B, at 1).

By Verified Answer dated June 12, 2020 the State denied the allegations raised in the Claim and interposed eight Affirmative Defenses, including the Claim's "failure to comply with the Court of Claims Act, Section 11 by failing to include any particularization of [1] the nature of the State's conduct as it regards the accident or [2] the nature of the cause of action therefore there is no proper claim over which the Court has jurisdiction" (Verified Answer 2, ¶¶ 6, 7). The Verified Answer also claims the State's agents and employees are immune from liability to the claimant because "[they] took actions which were privileged as being judicial, quasi-judicial or discretionary determinations made by such agents or employees while acting within the scope of their duties as public officials" (id. at ¶ 8).

On June 30, 2022, following the retirement of the Hon. Faviola A. Soto, all matters currently pending at Woodbourne were assigned to the undersigned. The parties were then notified of the scheduling of a virtual trial of this matter to be conducted using video conferencing technology on June 22, 2023, with the claimant and the State appearing virtually before the Court of Claims.

II.

At the trial held on June 22, 2023, the claimant appeared via video link from Woodbourne while the State's Assistant Attorney General appeared by video link from Binghamton, New York, before this judge sitting in Manhattan. The claimant's Exhibit 1, the Claim, was admitted into evidence on consent; as well as the State's Exhibit A containing the Verified Answer; Exhibit B, the incident Woodbourne Disciplinary Hearing Record Sheet including the Inmate Misbehavior Report, the appeal and DOCCS's reversal of the disciplinary hearing; however, Exhibit C, page 20, was only marked for identification. Faced with a self represented claimant, the Court carefully explained the rules and procedures for the unified trial of liability and damages to the parties. Both parties waived their option to make opening [*3]statements.

The claimant testified as the first and only witness that, on November 5, 2019, the date of the incident, he "went to chow" in the Woodbourne dining area and "two to three minutes" later he was taken by a Correctional Officer who "smacked [him] in the head and brought him to the box."[FN2] The Court expressed puzzlement about this allegation of violence which was nowhere in the Claim itself, and the claimant apologized for mixing up his claims. The claimant then continued explaining that he was presented with the Inmate Misbehavior Report written by Correction Officer M. Kelly the next day. This Report, which was admitted as evidence on consent of both parties, detailed that during Officer Kelly's "routine cube search"[FN3] of the claimant's cell, Kelly "pulled an oatmeal container out from underneath [the claimant's] bed which had a garbage bag stuffed in it. [He] found, wrapped in the bottom of the bag, a piece of black plastic that was sharpened to a point and made into a weapon [that] appeared to be from a broken arm of a pair of sunglasses" (Exh. B, Misbehavior Report at 1). As stressed by the claimant, the search was conducted while he was away in the "mess hall at dinner time."

The claimant then continued that during the subsequent disciplinary hearing he pleaded not guilty to charges of "a weapon, altered item, and contraband," but was found guilty on all charges and sentenced to spend 90 days in SHU. Neither the weapon, nor a photo of the weapon was shown during this hearing, as stated in DOCCS's reversal (State's Exhibit B at 1). The claimant testified he was then transferred from "the Woodbourne box" to Fishkill Correctional Facility, wherein he spent a reduced 70 days in SHU for completing a program during that time. The claimant testified he filed his appeal of the disciplinary hearing to DOCCS while in Fishkill SHU. The claimant received notice of the reversal in February 2020. Claimant further testified that Correctional Officers "beat [him] up a little" in the course of these events "upstate."

The claimant further testified that this (now-reversed) disciplinary action "denied" him continuation in the "Shock program" and made him "have to restart the ART program all over." The State informed the Court that "Shock" is a military-style "six-month bootcamp" that permits incarcerated individuals to obtain an early release upon completion, but if they fail out, they are "in for the whole kit and caboodle" of their sentence.[FN4] The claimant accused the State of "basically plant[ing] a weapon on [him,]" "set [him] up," and repeatedly stated he "should have been home over two years ago" if he would have completed the Shock program. The claimant testified this experience has caused him "trauma and anxiety", as well as "lost support" due to being transferred far away from his family members at Woodbourne.

Upon cross-examination by the State, the claimant testified that he had worn eyeglasses while at Woodbourne, including "on November 5th, 2019" - the date of the incident - and that he "didn't let anyone into [his] cube." "No other incarcerated individual got into my cube . . . I'm the only one who will have access to my cube." The claimant later contradicted himself saying that the Woodbourne cells are "wide open dorms" and anyone could enter "while [he] was gone", but he never allowed any other inmates inside. The claimant testified he was able to call witnesses during the disciplinary hearing and successfully called one fellow incarcerated individual named "Heidgen." The claimant testified that Officer Kelly did not testify during the hearing, but that he was forced to "face away from the witness" during the hearing, and he could not remember if he was allowed to question Heidgen. The claimant then rested his case.

After the claimant rested, the State made an oral motion for a prima facie dismissal of the Claim due to the claimant's inability to meet all elements of proving wrongful confinement, particularly "the fourth element regarding the State's actions being otherwise privileged." The State claimed the disciplinary hearing was "completely fair" in that the claimant "could call his own witnesses" and that his guilt was found on "legally sufficient grounds," because the claimant had admitted during the trial to owning and wearing glasses, that "people did not go into his cell," and to having an oatmeal box in his cell. Despite the claimant denying ownership or knowledge of the weapon, the State claimed that the DOCCS hearing officer's guilt findings were based on legally sufficient evidence, and that the claimant's case should be dismissed. In opposition to the State's motion, the claimant maintained he "had no weapon" and knew nothing about it before the search.

The Court denied the State's motion to dismiss with leave to renew at the conclusion of trial and afforded counsel time to present his witnesses; however, because the State's witness Officer Kelly was unavailable to testify, the State also decided to rest its case without calling any witnesses, relying on the documents entered into evidence on consent. The State then renewed its dismissal motion and summed up, arguing that the claimant failed to establish due process violations during the disciplinary hearing which would support a wrongful confinement claim, and that the claimant has failed to establish "that had the [weapon or a photo of the weapon] been admitted, the hearing's outcome would have been different." The State claimed there was "clear Court of Claims precedent that an incarcerated individual's cell may be searched without them present," interpreting DOCCS Directive 4910, governing cellblock searches, and that his assertion that the contraband was planted in the claimant's cell was "preposterous." The State reasserted that the disciplinary hearing officer had enough evidence to convict the claimant based on him wearing glasses at the time, having an oatmeal box in his cell as described by Kelly, and claiming to have control over who enters his cell.

With his summation, the claimant countered that correction officers are legally required to let incarcerated persons stand outside of their cell and observe while the officers are conducting a search. The claimant further argued that the full reversal of his disciplinary hearing conviction proved in "common sense" that DOCCS regulations had been violated during his hearing and that he "never had a weapon," or anything like it.

After reviewing the evidence at trial and assessing the witness's credibility, this Court agrees with the State.

III.

It is well-settled that the State has absolute immunity for those governmental actions requiring expert judgment or the exercise of discretion (see Friedman v State of New York, 67 NY2d 271, 284 [1986]). When State correctional facility employees act with respect to [incarcerate individual] discipline "under the authority of and in full compliance with the governing statutes and regulations (Correction Law §§ 112, 137; 7 NYCRR parts 250-254), 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]; see Bottom v State of New York, 142 AD3d 1314 [4th Dept 2016]; Holloway v State of New York, 285 AD2d 765, 765-766 [3d Dept 2001]). Only if the absolute immunity is removed by showing that the governing rules and regulations were not followed, a claimant may recover damages if its demonstrated "'that: (1) defendant [State] 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'" (Encarnacion v State of New York, 203 AD3d 1416, 1417-1418 [3d Dept 2022], quoting Broughton v State of New York, 37 NY2d 451, 456 [1975]; see Moustakos v State of New York, 133 AD3d 1268, 1269 [4th Dept 2015]). The fact that the disposition from a disciplinary hearing is later reversed does not necessarily remove the blanket of immunity for the State (see Arteaga, 72 NY2d at 214-215, 220).

Applying these principles to the matter at bar, this Court finds that the claimant has failed to credibly and sufficiently prove by a fair preponderance of the evidence that the State wrongfully confined him. While the record at trial supports a finding that the claimant's confinement was intentional, that he was conscious of the confinement and that he did not consent, he has failed to establish that his pre-hearing confinement was not otherwise privileged. Pursuant to DOCCS Regulation 7 NYCRR 251-1.6(a), in effect at the time the Misbehavior Report was issued, DOCCS was authorized to keeplock an incarcerated person where an officer had reasonable grounds to believe that the incarcerated person violated a facility rule, which "represents an immediate threat to the safety, security or order of the facility" ; (see Matter of Pettus v West, 28 AD3d 907 [3d Dept 2006]; Hernandez v State of New York, 48 Misc 3d 218 [Ct Cl, 2015]).

Here, the State's documentary evidence admitted on consent of both parties credibly demonstrated a reasonable basis to confine the claimant as a dangerous weapon - a sharpened piece of eyewear - was found hidden in his cell during a routine search, and he was promptly charged with having a weapon, altered item and contraband; all of which reasonably posed "an immediate threat to the safety, security, or order of the facility" (id.). The claimant himself acknowledged repeatedly at trial that he had sole control of who enter his cell - "nobody goes to my cube," was wearing glasses at the time, and had an oatmeal box in his cell as described in writing by Kelly. Because the claimant was in apparent violation of one or more prison disciplinary rules in allegedly possessing a dangerous "weapon," his immediate confinement was authorized, privileged and did not violate his due process rights.

Although the claimant argues that the correction officers violated DOCCS rules and procedures by searching his cell without him being present to observe the search, such routine searches do not need to be observed by the incarcerated person as per DOCCS Directive 4910(VI)(D)(1). In fact, correction officers are only required to allow the incarcerated person to observe the search if they are actually "removed" from the cell prior to the search. "'Directive [*4]No. 4910(V)(C)(1) allows an inmate to observe a cell search when the inmate is removed from the cell for the search, unless a determination is rendered that such presence constitutes a safety or security risk' (Matter of Johnson v Fisher, 109 AD3d 1070, 1071 [2013])" (Peterson v State of New York, UID No. 2014-031-051 [Ct Cl, Minarick, J., Sept. 18, 2014]). Here, even assuming that the correction officers who searched the claimant's cell abused their discretion by not allowing him to be present, the officers "were nevertheless exercising a discretionary authority for which [the State] has absolute immunity" (Holloway v State of New York, 285 AD2d at 766).

Finally, the claimant testified that his conviction was reversed because neither the weapon nor a photo of the weapon was provided at the hearing, as indicated by DOCCS's ultimate reversal. However, the claimant references no specific regulation regarding the evidentiary requirements of disciplinary hearings and whether this was a violation. It is well-settled that Disciplinary Hearings are governed by DOCCS Directive 4932, Part 253. Following those procedures, the Hearing Officer investigated, weighed the evidence and credited the Misbehavior Report and certain of the claimant's testimony in reaching his guilt determination. The relevant DOCCS sections make no reference to a standard of photographic or physical evidence that must be presented to the Hearing Officer in order to affirm a charge against an incarcerated person. This Court has neither the statutory power nor inclination to read in any such requirement in that disciplinary context.

In accordance with the foregoing, the Court finds that the claimant failed to prove by a fair preponderance of the evidence wrongful confinement, grants the State's oral motion to dismiss, and hereby dismisses his Claim No. 134729. After taking judicial notice of the claimant's Claim No. 134748, the Court is hereby sua sponte dismissing that Claim as duplicative and moot. Let judgments be entered.

Dated: August 31, 2023
New York, New York
Hon. JAVIER E. VARGAS
Judge of the Court of Claims Footnotes

Footnote 1:The Court takes judicial notice of a duplicate Claim No. 134748, filed by the claimant against the State on the same day, May 26, 2020, which raises the same allegations and causes of action, but it is unsigned and unverified. Since a full trial was conducted on the same allegations, the Court will sua sponte decide both duplicative Claims after the trial herein.

Footnote 2:Unless otherwise indicated, matters in quotations are to the Court's own notes or those taken from audio recordings of this proceeding.

Footnote 3:It should be noted that the claimant referred to the SHU as a "the box," and to his normal, non-SHU cell at Woodbourne as his "cube" for the duration of the trial.

Footnote 4:In fact, New York "Shock Program" is defined as "a program pursuant to which eligible incarcerated individuals serve a period of six months in a shock incarceration facility, which shall provide rigorous physical activity, intensive regimentation and discipline and rehabilitation therapy and programming " (CLNY, Chapter 43, Article 26-A).