This is claimant's motion for an order of this court granting him permission
to proceed as a poor person and for the assignment of counsel pursuant to CPLR
§§ 1101 and 1102. In deciding this motion the court has read and
reviewed the following papers:
Claimant's combined motion and affidavit sworn to September 21, 2000 and filed
September 25, 2000 in support of the motion.
Claim verified August 24, 2000 and filed August 28, 2000.
Order of Honorable Susan Phillips Read, Presiding Judge of the Court of
Claims, dated and filed October 26, 2000.
This claim arose on May 17, 2000 after claimant had been transferred from
Attica Correctional Facility to Riverview Correctional Facility. Claimant
alleges that when he arrived at Riverview Correctional Facility and was called
to obtain his personal property, several items were missing. It appears four
bags of claimant's personal property were packed for transfer to Riverview
Correctional Facility, but when claimant arrived there, he was given only three
of those bags. Claimant alleges the defendant was negligent in maintaining his
By this motion, claimant states he is unable to pay the costs, fees and
expenses necessary to pursue his claim. The issue of the costs and fees
associated with filing a claim in the Court of Claims has already been resolved
by the order of Honorable Susan Phillips Read, Presiding Judge of the Court of
Claims, dated and filed October 26, 2000. In that order, claimant's filing fee
was set at $25.00 with no initial payment of the reduced fee required.
By his motion to proceed as a poor person, the claimant seeks an order of this
court waiving the payment of all filing fees and court costs. The court has
reviewed claimant's combined motion and affidavit to proceed as a poor person,
and finds them to be without merit. The claimant states that he is unable to
pay the costs and fees associated with the prosecution of this action, but
prosecution of this matter in this court does not require the claimant to pay
any costs or fees. The only costs associated with serving a notice of intention
to file claim and filing and serving a claim consist of postage and, perhaps,
photocopying expenses. In his statement and petition, the claimant alleges that
he has neither income or any property of value. However, the court is aware
that the defendant provides five free first-class stamps to inmates weekly and
will advance an inmate up to $20 for legal mail postage, if the inmate has
insufficient funds (7 NYCRR 720.8[b][c]; 721.4[a]; 721.5[a]). Based upon these
regulations, an inmate should have adequate means to serve his/her notice of
intention to file claim and/or serve and file his/her claim and any other papers
related to the claim in compliance with the Court of Claims Act. In the event
an inmate is unable to afford the cost of photocopying, it would not be
unreasonable for an inmate to transcribe by hand multiple copies of his/her
notice of intention to file claim and/or claim and other related papers for the
purpose of filing and serving same.
Claimant has not set forth any specific facts as to the attempts he has made
to obtain counsel on his own behalf or any attempts he may have made to seek aid
from the various legal services available to prisoners. Furthermore, it does
not appear to the court that it would be justified in exercising its discretion
in appointing counsel for the claimant. Matter of Smiley, 36 NY2d 433;
Stephens v State of New York, 93 Misc 2d 273.
Accordingly it is,
ORDERED, that the motion of the claimant to proceed as a poor person and for
the assignment of counsel is hereby DENIED.