New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2001-019-528, Claim No. 88218, Motion No. M-63251


Claimant's motion to amend claim and for production of witness and items at trial is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
May 8, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, a pro se inmate, moves for permission to amend his claim pursuant to CPLR 3025(b), as well as seeking the production of one witness and certain items for trial.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed October 28, 1993.
  2. Notice of Motion No. M-63251, dated February 25, 2001, and filed March 12, 2001.
  3. Affidavit of Rodney Davis, in support of motion, sworn to February 25, 2001.
  4. "Amendment to Claim, List of Witnesse"s [sic] and Requested Documents from the Respondent", dated February 25, 2001.
  5. "Affidavit in Support of Amendment to Claim...", of Rodney Davis, sworn to February 25, 2001.
  6. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated April 13, 2001, and filed April 16, 2001.
  7. Letter from James E. Shoemaker to Court, dated April 19, 2001 and received April 20, 2001.
The trial of this wrongful confinement claim is scheduled for July 17, 2001. The sum and substance of the allegations contained in this Claim surround the alleged failure of Elmira Correctional Facility to deliver legal mail to Claimant which contained notification from the Department of Correctional Services (hereinafter "DOCS") that his order of administrative segregation had been reversed, thereby delaying his return to the general prison population. More specifically, the facts alleged in this Claim are as follows:

•On December 30, 1992, Claimant was placed in administrative segregation at Green Haven Correctional Facility (hereinafter "Green Haven").

•On January 7, 1993, Claimant's Tier III hearing commenced and the recommendation was affirmed.

•Claimant appealed to the Commissioner pursuant to 7 NYCRR 254.8.

•Claimant was housed in the Elmira Correctional Facility between March 4, 1993 through March 22, 1993 in order to attend court proceedings.

•On March 22, 1993, Claimant returned to Green Haven and was returned to administrative segregation.

•On March 26, 1993, Claimant was returned to general prison population.

Claimant alleges that a letter from the Commissioner dated March 12, 1993 notifying him of the reversal of his administrative segregation determination was received by Elmira Correctional Facility on March 18, 1993. (Claim, Exhibits C & D). Claimant further alleges that Elmira Correctional Facility refused to deliver this legal mail to him in violation of Department of Correctional Services regulations.[1] Claimant originally sought damages for 9 days of unnecessary administrative segregation between March 18, 1993 through March 26, 1993 based upon the delay in receiving his legal mail. By way of this motion, Claimant now seeks to amend his Claim by increasing from 9 to 78 days the total number of days he was allegedly wrongfully confined to include the time between December 30, 1992 and the date of his release back to the general population on March 26, 1993. Claimant argues that this amendment is warranted because he has since learned that damages for wrongful confinement commence on the eighth day if a superintendent's hearing is not held within 7 days. As such, Claimant now seeks to amend this Claim to include his entire 78 days of administrative segregation since his hearing was not held until January 7, 1993, more than 7 days after he was placed on administrative segregation on December 30, 1992.

Leave to Amend

A pleading in the Court of Claims may be amended in the manner provided by CPLR 3025. (Uniform Rules for the Court of Claims [22 NYCRR] § 206.7 [b]). Leave to amend a pleading should be freely given although the determination is directed to the sound discretion of the Court. (Siegel, NY Prac § 237, at 378 [3rd ed]). Moreover, such motions should be denied when the proposed amendment clearly is legally insufficient or lacks merit. (Sentry Ins. Co. v Kero-Sun, Inc., 122 AD2d 204).

Claimant's argument is that after further research he has now learned that the failure to hold a hearing on his administrative segregation within a 7 day time period is in violation of Chapter V of the Department of Correctional Services regulations. It appears that Claimant's arguments are based upon 7 NYCRR 251-5.1 which requires that a disciplinary hearing or superintendent's hearing should be commenced within 7 days. However, Claimant's reliance on 7 NYCRR 251-5.1 is misplaced because this 7 day rule applies only to disciplinary hearings or superintendent's hearings, but not administrative segregation hearings. (Matter of Bryant v Mann, 160 AD2d 1086, lv denied 76 NY2d 706). The governing provision for the timing of administrative segregation hearings is 7 NYCRR 301.4 which expressly states that such a "[h]earing shall be conducted within 14 days of an inmate's admission to administrative segregation." Here, Claimant's hearing was held within the 14 day time period. Consequently, Claimant's proposed amendment is totally devoid of merit and his motion requesting permission to amend this Claim is denied. (Matter of Francella v Selsky, 236 AD2d 749, 751).

Witness & Document request for trial

Claimant also requests that the hearing officer who conducted his hearing be called as a witness at his trial but indicates that the name of this individual is illegible on the written disposition. Claimant requests Mr. Pico as a witness because "[t]he individual that conducted the hearing is a needed witness to testify as to did he follow Correctional Law, and other applicable rules, regulations, and procedures." (Claimant's Amendment to Claim, List of Witnesses and Requested Documents from the Respondent, p 2). In response, the State clarifies that the name of the hearing officer was Jose Pico. In this Court's view, Claimant has failed to demonstrate that the testimony of the hearing officer is material and relevant to the allegations that Elmira Correctional Facility failed to forward his legal mail. Consequently, Claimant's motion is denied to the extent that it can be construed as permission to subpoena Jose Pico as a witness for trial.

Additionally, Claimant requests that the State furnish: 1) a copy of the electronic tape of his hearing and 2) a copy of his own written administrative appeal. The State advises that the tape of Claimant's administrative hearing is no longer available since it is more than three years old. (Letter of James E. Shoemaker, AAG dated April 19, 2001). The State makes no response to Claimant's request for a copy of his administrative appeal. Nevertheless, Claimant has failed to demonstrate how these items are material and relevant to his allegations that his inmate legal mail was improperly handled. As such, Claimant's motion requesting the production of the electronic tape of his hearing and a copy of his own written administrative appeal for trial is denied.

Accordingly, for the reasons stated above, it is ORDERED that Claimant's motion, Motion No. M-63251, is DENIED.

May 8, 2001
Binghamton, New York

Judge of the Court of Claims

[1]The Claim cites provision 7 NYCRR 721.2 (a) (8), but it appears that 7 NYCRR part 722 is the provision applicable to the forwarding of inmate mail. (Claim, ¶ Fourth).