New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2006-015-118, Claim No. 112243, Motion Nos. M-71775, M-71776


Claimant's motions for the assignment of counsel and a speedy trial and to amend his claim to include transcripts from his disciplinary hearing were 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):
M-71775, M-71776
Cross-motion number(s):

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 31, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's separate motions seeking (1) the assignment of an attorney and a speedy trial and (2) an order permitting the incorporation of transcripts of several disciplinary proceedings and other documents into the filed claim are denied. The instant claim filed April 21, 2006 seeks unspecified damages arising out of the Department of Correctional Services (DOCS) placement of claimant in a Special Housing Unit at some unspecified facility or facilities[1].

Motion No. M-71775

Citing to federal case law and the Magna Carta 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 asserting that: "Claimant has failed to attach to his motion papers certified records showing the amount of money in his inmate account, both at the present time and over the past three months; [c]laimant has not demonstrated that he has made any effort to obtain an attorney to handle the claim on a contingent fee basis; [t]he claim is not a complex matter which would warrant the Court's exercise of discretion by assigning an attorney; [c]laimant has not filed a certificate from an attorney stating that the attorney has examined the claim and believes that there is merit thereto, as the Court may require pursuant to CPLR § 1101(b); [t]he claimant has failed to serve the Chemung County Attorney with the Notice of Motion and Affidavit in Support of his application to proceed as a poor person."

Claimant's application for the appointment of counsel must be denied. 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). Despite claimant's conclusory assertions to the contrary this claim does not rise to that level.

Trials of prisoner pro se claims are held at regularly scheduled prison terms in the order in which the claims are filed and are not subject to motions seeking a speedy trial. Claimant will be advised when the instant claim has been reached for trial.

Motion No. M-71776

Claimant also moves for an order incorporating transcripts of numerous disciplinary hearings and other documents 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 seeks to incorporate into the filed claim. Those hearings, however, appear to be totally unrelated to the loosely-stated allegations of the filed claim.

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 (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).

Finally, it is well established that claims alleging violations of an individual's rights under the United States Constitution are not subject to adjudication in the Court of Claims (Brown v State of New York, 89 NY2d 172, 184; Zulu v State of New York, 2001 WL 880833 (NY Ct Cl); Ferrer v State of New York, 172 Misc 2d 1, 5). Nor is the State a "person" amenable to suit under 42 USC § 1983 (Ferrick v State of New York, 198 AD2d 822; Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723, affd 56 NY2d 656) Accordingly, claimant's attempt to predicate liability against the State upon an alleged violation of the Eighth Amendment to the United States Constitution is unavailing and no amendment or supplement to the claim to include such a claim can be allowed.

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

August 31, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

Motion No. 71775
  1. Notice of motion dated May 23, 2006;
  2. Unsworn, undated "Affidavit" of James Pettus filed May 25, 2006;
  3. Affirmation of Joseph F. Romani dated June 14, 2006;

Motion No. 71776

  1. Notice of motion dated May 10, 2006;
  2. Unsworn, undated "affidavit" of James Pettus filed May 16, 2006 with exhibits;
  3. Affirmation of Joseph F. Romani dated June 14, 2006.

[1].The claim states that it accrued on February 10, 2006 at Southport, Elmira, Cayuga, Downstate and Great Meadow.