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)
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
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.,
; Crenshaw v State of New
, 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
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.