New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2006-015-110, Claim No. 112064, Motion Nos. M-71617, M-71586, M-71582


Synopsis


Claimant's separate motions seeking (1) the assignment of an attorney (2) a preliminary conference to set discovery deadlines, direct the exchange of witness lists, set a trial date and order settlement negotiations; and (3) an order permitting the incorporation of transcripts of several disciplinary proceedings into the filed claim are denied.


Case Information

UID:
2006-015-110
Claimant(s):
JAMES PETTUS
Claimant short name:
PETTUS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112064
Motion number(s):
M-71617, M-71586, M-71582
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Joseph F. Romani, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 7, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant's separate motions seeking (1) the assignment of an attorney (2) a preliminary conference to set discovery deadlines, direct the exchange of witness lists, set a trial date and order settlement negotiations; and (3) an order permitting the incorporation of transcripts of several disciplinary proceedings into the filed claim are denied.

The instant claim filed March 9, 2006 seeks unspecified damages arising out of the Department of Correctional Services (DOCS) placement[1] of claimant in a maximum security prison where he was allegedly beaten, robbed, assaulted, extorted and sexually harassed on unspecified dates.

Motion No. M-71617

Citing to federal case law claimant moves for an order of the Court assigning an attorney to represent him on the claim. Assistant Attorney General Joseph F. Romani opposed the motion and alleged that the motion was not served upon the Attorney General.

Claimant's application for the appointment of counsel must be denied. Even assuming, arguendo, that the motion papers were served upon the defendant claimant offered no proof that his application was served upon the appropriate county attorney as required by statute (CPLR 1101 [c]). Failure to serve a county attorney is, in itself, a basis for denial of the relief requested (Sebastiano v State of New York, 92 AD2d 966; People v Calhoun, 2 Misc 3d 1009 (A); Harris v State of New York, 100 Misc 2d 1015). Moreover, the Court of Appeals has held that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation of this nature (Matter of Smiley, 36 NY2d 433). Smiley has been interpreted for the proposition that courts should not routinely approve requests for the assignment of private counsel without compensation unless the litigation involves grievous forfeiture or loss of a fundamental right (Wills v City of Troy, 258 AD2d 849, lv dismissed, 93 NY2d 1000; Morgenthau v Garcia, 148 Misc 2d 900, 903). This claim does not rise to that level.

Motion No. M-71586

Claimant, an inmate currently confined in a DOCS facility, further seeks an order directing a preliminary conference to set a discovery deadline, exchange witness lists, set a trial date and direct settlement negotiations. The defendant opposed the motion citing to the exclusion of preliminary conferences and discovery related procedures for prisoner pro se claims found in the Uniform Rules for the Court of Claims (22 NYCRR 206.10).

Preliminary conferences and the relief obtainable therein are not mandated in prisoner pro se claims and the Court declines to direct a conference (22 NYCRR 206.10[a]; see Kelley v State of New York, Ct Cl, June 14, 2005 [Claim No. 104438, Motion No. M-70132, UID # 2005-019-540] Lebous, J., unreported[2]; Crenshaw v State of New York, Ct Cl, January 15, 2004 [Claim No. 98862, Motion No. M-67790, UID # 2004-019-507] Lebous, J., unreported). Trials of prisoner pro se claims are held at regularly scheduled prison terms in the order in which the claims are filed. Claimant will be advised when the instant claim has been reached for trial.

Motion No. M-71582

Finally, claimant moves for an order incorporating transcripts of numerous disciplinary hearings as part of the filed claim. A motion to amend or supplement a pleading pursuant to CPLR 3025 (b) is addressed to the Court's discretion. "[A]lthough leave to amend a pleading should be freely given (see, CPLR 3025 [b]), the proposed amendment must demonstrate some merit (see, Curtin v Community Health Plan, 276 AD2d 884, 886; Non-Linear Trading Co. v Braddis Assocs., 243 AD2d 107, 116)" (Ferran v Williams, 281 AD2d 819, 820-821, lv dismissed 97 NY2d 653; see also Jackson v Dow Chem. Co., 295 AD2d 855; Nastasi v Span, Inc., 8 AD3d 1011). Claimant herein has neither alleged nor demonstrated that his proposed amendment or supplement has any merit whatsoever. Claimant is obviously displeased with the result of the subject disciplinary hearings, the transcripts of which (along with exhibits) he wishes to incorporate into his filed claim. Those hearings, however, appear to be totally unrelated to the loosely-stated allegations of the filed claim.

Furthermore, it is well established that the actions of correction employees in carrying out their duties relating to security and discipline are quasi-judicial in nature and cloaked with absolute immunity as long as the actions taken are within the employee's authority and are not in violation of governing rules and regulations (Arteaga v State of New York, 72 NY2d 212, Davis v State of New York, 262 AD2d 887, lv denied 93 NY2d 819).

With regard to the proposed supplemental material offered on this motion, claimant has not identified any rule or regulation allegedly violated by the defendant in conducting any of the hearings nor alleged in what way the defendant's employees may have acted outside the scope of their authority (see Arteaga v State of New York, supra; Holloway v State of New York, 285 AD2d 765).

Accordingly, the hearings are presumed to be cloaked with absolute immunity and no liability on the part of the defendant can result from the hearings (see Cox v State of New York, Ct Cl, August 1, 2001 [Claim No. 94683, Motion No. M-63567, UID # 2001-011-567] McNamara, J., unreported; Edwards v State of New York, Ct Cl, October 31, 2003 [Claim No. 103726, Motion No. M-66660, UID# 2003-031-080] Minarik, J., unreported).

Claimant's motion to incorporate the transcripts and related exhibits into the instant claim is denied.


August 7, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:


Motion No. M-71617
  1. Notice of motion dated April 15, 2006;
2. Unsworn "affidavit" of James Pettus dated April 15, 2006;
3. Affirmation of Joseph F. Romani dated May 9, 2006;


Motion No. M-71586

  1. Notice of motion dated April 12, 2006;
  2. Unsworn "affidavit" of James Pettus dated April 12, 2006;
  3. Affirmation of Joseph F. Romani dated May 9, 2006;

Motion No. M-71582

  1. Notice of motion dated April 12, 2006;
  2. Unsworn "affidavit" of James Pettus dated April 12, 2006 with exhibits;
  3. Affirmation of Joseph F. Romani dated May 9, 2006;
  4. Unsworn "affidavit of James Pettus dated May 11, 2006.

[1].Or transfer of claimant by DOCS to a maximum security facility.
[2].Unreported decisions from the Court of Claims are available via the internet at http://www.nyscourtofclaims.state.ny.us./decision.htm.