New York State Court of Claims

New York State Court of Claims

CLINTON v. THE STATE OF NEW YORK, #2000-004-506, Claim No. 99100, Motion No. M-60900


Synopsis


State's motion to dismiss, granted.

Case Information

UID:
2000-004-506
Claimant(s):
DARRELL G. CLINTON, 94-A-5035
Claimant short name:
CLINTON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99100
Motion number(s):
M-60900
Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
DARRELL G. CLINTON, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY GENERAL
BY: Ellen Leary CoccomaAssistant Attorney-General, of counsel
Third-party defendant's attorney:

Signature date:
May 17, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The State moves to dismiss the Claim.


The following papers were considered by the Court:

Claim, filed October 7, 1998 1

Notice of Motion, filed December 9, 1999 2


Affirmation of Ellen Leary Coccoma, AAG, in support of
motion, dated December 6, 1999, with attached exhibits 3

"Reply" letter from Darrell Clinton, filed December 13, 1999 4

Claim[1] states in pertinent part:


FOURTH: The facts which provide the basis for the above mentioned claim are as follows...

A. Approximately on or, about the 8th day of Aug. 1997, Claimant filed two (2) grievance's, plus wrote to the superintendent, pertaining to claimant program in food-service.

B. On 8/13/97, in retaliation of the above,
+
i.e. two grievance's, and a letter to the superintendent
,
The Claimant was placed in cell confinement on bogus/false charge's of "demonstration, refusing to obey a direct order-and-movement violation.

C. On 8/19/97 a bias tier hearing was held, and over objections of the law, claimant was found guilty on all three charges's, and received 120 days in confinement, with the loss of all privilege's.

D. The Claimant appeal to both the superintendent, as well as to the commissioner of the Department of Correctional Services. But they've both affirmed. The administrative appeal was exhausted.

E. The matter was ordered reversed, annulled and expunge from claimant records, and further ordered that claimant be restored to any good behavior allowance lost and Claimant Art. 78 Petition was granted, by the Court on 6/22/98.

FIFTH: As a result of this incident, claimant suffered:

A. Loss of pay wage's and promotions that Claimant had earned, loss of program, 120 day's confinement, a year of mental anguish, liberty on parole, and relationship's with family and spouse, as well as loss of all privilege's.

B. And further in retaliation, because Claimant has

won his petition in Court, Claimant has been sent to Attica disciplinary B-block, and denied an opportunity of all program's, pertaining to his parole plan's and job skills. Plus time & disbursements.

SIXTH: The particulars of claimant's damage are as follows:

Compensatory Damage's, for loss wage's, disbursements, sur-charge, and legal fee's of time spent on this matter. Compensation damages for loss of package's, phone calls, special events, liberty on parole, mental anguish, and oppression, fraud and degradation. Punitive damage's for the loss and injury suffered. And/or whatever the Court deem proper on relief.

SEVENTH: Notice of intention to file this claim was served on the Attorney General of the State of New York by certified mail, return receipt requested. It was received in the office of the attorney general on August 17th, 1998.

EIGHTH: This action is filed pursuant to Sections 10 and 11 of the Court of Claims Act.

(Paper No. 1)


State's counsel affirms, in pertinent part:

2. Considering both Claimant's claim (attached as Exhibit A) and Claimant's Notice of Intention (attached as Exhibit B), claimant alleges, in part, that he was wrongfully confined for the period August 13, 1997 through December 11, 1997 after what he refers to as a biased Tier III hearing. Such a claim accrues once the inmate is released from confinement and thus, this claim accrued on December 11, 1997.

3. The Court of Claims Act § 10 requires that the claimant file a Notice of Intention to file a claim or a claim within 90 days of the accrual of the claim. In the instant case, the Notice of Intention was received by the Attorney General's Office on August 20, 1998. The claim was received by the Attorney General's Office on October 7, 1998. Because neither the notice of intention nor the claim was received within 90 days of December 11, 1997, claimant's claim for wrongful confinement should be dismissed for lack of subject matter jurisdiction and personal jurisdiction over the defendant. See, Selkirk v. State, 249 AD2d 818 (3d Dept 1998). Malloy v. State of New York, 196 AD2d 925 (3d Dept 1993).

4. For the remaining part of Claimant's claim, claimant states that after the Supreme Court reversed the determination made after the Tier III hearing in question, defendant, "in retaliation," sent him to Attica Disciplinary Block and denied him access to programs. It is submitted that determinations regarding the suitable facility and programs for an inmate are within the discretion of the Department of Corrections. Corrections Law § 23. An inmate has no right to serve his sentence in any particular facility or level of facility. Taylor v. Kennedy, 159 AD2d 827 (3d Dept 1990); Matter of Johnson v. Ward, 64 AD2d 186 (3d Dept 1978) and has no right to participate in any particular program. See, Cooper v. Smith, 99 AD2d 644 (4th Dept 1978), affd 63 NY2d 615 (1984). Thus, such determinations are immune from liability and claimant's claim on this issue should be dismissed. See, Arteaga v. State of New York, 72 NY2d 212.

5. Also attached as Exhibit C is defendant's verified answer which raises lack of subject matter jurisdiction and personal jurisdiction over the defendant because of the untimeliness of the claim in that neither the notice of intention to file a claim nor the claim was served within ninety days of the accrual of the claim as the First Affirmative Defense. The answer also raises the affirmative defense of immunity as the Fourth Affirmative Defense and the affirmative defense of failure to state a claim as the Fifth Affirmative Defense.

(Paper No. 3)




Claimant's Reply states, in pertinent part:

2.) On August, 8,th 1997, Claimant filed two facility grievance's, plus wrote to the superintendent, concerning why claimant was not allowed to go back to his assigned program, and why was he being deprived of his privlege's, and being kept confine in a cell, during program hour's, especially when claimant has done nothing wrong, and there were no kind of due process for respondent(s) to discriminate against claimant and deprive him of his assigned program,
which was pertaining to his parole plans and/or markable job skills
and also deprived of certain privilege's.

3.) On August, 13,th 1997, Claimant was placed in full time confinement, in retaliation for writing the grievance's, and in order to try an justify respondent(s) actions, of wrongly removing claimant from his assigned program, and depriving him of his privilege's.

4.) On August, 19,th 1997, Claimant was wrongly found guilty by defendant(s), for the allege charge's of demonstration, refusing to obey a direct order and movement violation; and the defendant (s) imposed the following penalties of 120 day's confinement, a fine of a 5.00 sur-charge, and/also 120 day's loss of package's, phone calls and commissary.

5.) Claimant first exhausted all of his administration remedies, by appealing to the superintendent to use his discretionary review and at least modify the penalty if not reverse the matter. He
+
the superintendent
,
refused and told claimant to appeal the matter to the commissioner of D.O.C.S. and when claimant appealed the matter to the commissioner, the matter was affirmed by the commissioner of D.O.C.S. office on October 30,th 1997.

6.) On November 13,th 1997, Claimant move to exhaust his state remedies by filing an Article 78 in the Chemug County Supreme Court. And Claimant challenge the defendant(s) determination on several different grounds and/or issure's of law.

7.) Claimant Article 78 motion was granted by the New York State Supreme Court, in Chemung County on June 22,nd 1998, and that order and/or Decision & Judgment was received by Claimant on July 9,th 1998. The on July 21, 1998, defendants trasfered Claimant to a disciplinary block, in Attica, and kept Claimant in cell confinement for approximately three weeks, and on August, 3,rd 1998, the spokesmen for D.O.C.S. claimed and stated on the news that Attica B Block house the worset of the worst inmate/prisoners in the State. But I was wrongly put that, and in retaliation for winning an Artile 78 in Court, of their wrong doing. And ever since then the Claimant have been receiving false/bogus misbehavior reports, bias tier hearings, curel and unusual punishment of confinements, and well as robbed of his property twice by D.O.C.S. employee's. Which Claimant can prove.

8.) On October 3,rd 1998, after Claimant was allowed access to the law library, he filed his Notice of Claim, which was well within the 90 days statue of limitation, after the Claimant exhausted his administration and State remedies, as well as the Claimant Claim was within the statue after the Supreme Court Decision/Judgment.

(Paper No. 4)



State's counsel's argument that the Claim is untimely is unavailing (see, Robinson v Herbert, 2000 NY App Div LEXIS 3574).


There is no indication that the Tier III hearing, its ultimate reversal, and the determinations concerning Claimant's facility placement and programs were not done according to the rules and regulations of the Department of Corrections. As it appears that the correction employees followed the applicable rules and regulations, they are afforded absolute immunity (Arteaga v State of New York, 72 NY2d 212). Further, State's counsel correctly points out (see, Paper No. 3, ¶ 4) that an inmate has no right to serve his sentence in any particular program. In any event, if Claimant wishes to reverse or nullify these allegedly retaliatory actions by DOCS, that is, if he wishes to re-locate or gain access to certain programs, he must pursue his remedies elsewhere, since the Court of Claims has no jurisdiction over such matters. For these reasons, the Claim must be dismissed.



In light of the foregoing, it is



ORDERED that the State's Motion No. M-60900 is GRANTED, and Claim No. 99100 is dismissed.


May 17, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims




  1. The Claimant's papers contain numerous grammar, spelling, and capitalization errors. The Court has elected not to "sic" those errors.