New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2007-015-242, Claim No. 113867, Motion Nos. M-73704, M-73727


Synopsis


Motion for the assignment of counsel and a speedy jury trial was denied.

Case Information

UID:
2007-015-242
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):
113867
Motion number(s):
M-73704, M-73727
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Roberto Barbosa, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 18, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, moves in two motions (Motion Nos. M-73704 and M-73727) for the assignment of counsel and a speedy jury trial. The claimant alleges the following in his claim:
"PLAINTIFF WHO IS [NON-VIOLENT] AND SUFFERS SERIOUS MEDICAL CONDITIONS AND PLACED IN THE 'CARE', 'CUSTODY' AND 'CONTROL' OF [D.O.C.] WHICH IS A STATE GOVERNMENTAL ENTITY. THE OFFICIALS [WILLFULLY] [PURPOSEFULLY] WITH [INTENT] DENIES PLAINTIFF AND OTHER [BLACK] INMATES THERE [SIC] PROCEDURAL DUE PROCESS PROTECTED UNDER THE 14TH AMENDMENT. PLACING CLAIMANT INTO [SHU] AND KEEP-LOCKED STATUS, CAUSING [INJURY] [HARM] BOTH PHYSICALLY AND PSYCHOLOGICALLY. BY EXTENDED KEEP-LOCKED TIME OR PLACEMENT INTO [SHU] WITHOUT COMMITTING SERIOUS PRISON INFRACTIONS. SEE TITLE 7 NYCRR 280.2[B]."

"THIS [POLICY] AND [CUSTOM] IS ENFORCED AS A [LAW] WHEN IN FACT [VOLATIVE] (SIC) OF ESTABLISHED LAW AND DUE PROCESS. THIS [PRACTICE] IS SO SEVERE AND WIDESPREAD CAUSING CLAIMANT AND OTHER BLACK INMATES [PSYCHOLOGICAL] TORMENT AND TORTURE, WHICH IS ON-GOING AND CURRENT. DENYING CLAIMANT AND OTHER BLACK INMATES [DUE PROCESS] AND [EQUAL PROTECTION] OF [STATE] LAW [THEREBY] VOLATIVE (SIC) OF A CONSTITUTIONAL RIGHT PROTECTED UNDER THE 14TH AMENDMENT OF THE U.S. CONSTITUTION, WHICH [GOVERNS] ALL FIFTY (50) STATES."

CPLR 1102 grants the Court discretion to assign an attorney in its order permitting a person to proceed as a poor person. CPLR 1101 requires, inter alia, that an application for poor person status be supported by an affidavit setting forth the amount and sources of the moving party's income and assets and that he or she is unable to pay the costs, fees, and expenses necessary to prosecute or defend the action. Claimant failed to provide the information required by the statute in support of the instant application.

Moreover, in Matter of Smiley (36 NY2d 433 [1975]) the Court of Appeals held that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation. In so holding the Court recognized that unlike a defendant in a criminal proceeding, most civil litigants are not facing a "risk of loss of liberty or grievous forfeiture" (id. at 437). While the Court in Smiley made clear that civil litigants have no absolute right to assigned counsel, it recognized that "[t]he courts have a broad discretionary power to assign counsel without compensation in a proper case" (id. at 441; see also CPLR 1102). A "proper case" for the discretionary appointment of counsel includes situations in which a litigant is faced with grievous forfeiture or loss of a fundamental right (Wills v City of Troy, 258 AD2d 849 [1999], lv dismissed 93 NY2d 1000 [1999]; Morgenthau v Garcia, 148 Misc 2d 900, 903 [1990]). The Court does not find the allegations made herein so compelling as to warrant the assignment of counsel.

Additionally, claimant's failure to serve the county attorney as required by CPLR 1101(c) warrants denial of the relief requested (Sebastiano v State of New York, 92 AD2d 966 [1983]; Harris v State of New York, 100 Misc 2d 1015 [1979]).

Claimant's request for a speedy jury trial is denied. The constitutional right to a speedy trial does not apply in a civil case (Matter of Reed v New York State Dept. of Motor Vehs., 59 AD2d 974 [1977]). Rather, the scheduling of pro se inmate claims lies within the discretion of the Court and the claimant failed to establish his entitlement to a trial preference (see CPLR 3403 [a]). Lastly, there is no right to a jury trial in the Court of Claims (Court of Claims Act § 12 [3]; Graham v Stillman, 100 AD2d 893 [1984]).

Accordingly, the claimant's motions are denied.



October 18, 2007
Saratoga Springs, New York

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


The Court considered the following papers:

M-73704
  1. Notice of motion dated April 16, 2007;
  2. Affidavit of James Pettus sworn to April 17, 2007;
  3. Affirmation of Roberto Barbosa dated August 14, 2007.

M-73727

  1. Notice of motion dated April 16, 2007;
  2. Affidavit of James Pettus sworn to April 17, 2007 with exhibits;
  3. Affirmation of Roberto Barbosa dated August 14, 2007.