New York State Court of Claims

New York State Court of Claims

JAMISON v. THE STATE OF NEW YORK, #2007-030-043, Claim No. 112411


Synopsis


Pro se inmate alleges that defendant’s agents at Sing Sing Correctional Facility interfered with family visits. Claim stems from a comment made to claimant’s common-law wife in the presence of claimant’s daughter by personnel in the visiting area. Claim served regular mail. Defense asserting lack of personal jurisdiction stated with sufficient particularity in the Answer. No equitable estoppel applied given lack of proof. No copies of any disbursement request forms for certified mail service, or indication on the mailing itself of claimant’s intent (the words “legal mail” written on the outside of the envelope do not necessarily mean that the item should be sent certified mail, return receipt requested); no copy of inmate account statement showing a withdrawal for the correct amount; no overreaching facility policies or violation of policy shown

Case Information

UID:
2007-030-043
Claimant(s):
SHANNON JAMISON
Claimant short name:
JAMISON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112411
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
SHANNON JAMISON, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
November 26, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Shannon Jamison alleges in his claim that defendant’s agents at Sing Sing Correctional Facility interfered with family visits in October and November 2005, causing him injury. Trial on the issue of liability was to be held on October 19, 2007.

On that date, defendant moved to dismiss the claim based on a lack of jurisdiction, in that the Attorney General’s Office was served with the claim only by regular mail on June 5, 2006, but was not served personally or by certified mail, return receipt requested, as required. See Court of Claims Act §§10 and 11. In its answer, served on July 14, 2006, the defendant included as an Eighth affirmative defense the failure to serve the claim as required, and the resulting lack of jurisdiction. In support of this contention, a copy of the claim, filed-stamped as received by the Attorney General’s Office on June 5, 2006, and containing the envelope in which it was mailed, was submitted to the court, and shows that only regular mail service was paid for, with no telltale green receipt markings. [Exhibit A]. No affidavit of service has been submitted by claimant indicating service by any means. Additionally, claimant conceded on the record that the claim was served only by regular mail, although he did simultaneously contend that he “was doing it that way because . . . [he] was leaving the jail, and . . . got transferred after the incident happened and that was the only way . . . [he] could send it out . . .”[1] He explained that personnel were rushing to transfer him, and that he did not have time to seek a “call-out to the law library in order to get certified mail service”, which, he claimed, was “not available on the gallery area.”

Defendant also moved to dismiss based upon its Fourth affirmative defense, alleging a failure to state a cause of action in that there is no particularization of the State’s conduct as it relates to claimant, nor does claimant have standing to bring an action on behalf of his common-law wife and daughter. The claim stems from a comment made to claimant’s wife in the presence of claimant’s daughter by personnel in the visiting area. Claimant was not present at the time.

Claimant argued that he filed a grievance at the time with regard to the area sergeant assigned to the visiting room who, he said, “on two occasions,” namely October 21, 2005 and November 3, 2005, “harassed” his wife. On the first occasion, claimant’s son was present as she was being harassed by the officer in question. He recalled the officer’s name to be Officer Thomas.

Claimant then argued - apparently quoting from a case - that “an inmate can suffer harm from denial or intentional conduct designed to discourage visitation”; and cited to “Thomas v Bailey, 481 F two 660.”[2]

Mr. Jamison said that he has not seen the children since those incidents, and that his wife has sought counseling. He said “she filed a lawsuit herself and they moved . . . [him] out of the jail too quickly to get the mail out correctly.”

By way of rebuttal defendant noted that the claim does not contain allegations of a denial of visitation, or active discouragement of visitation, and reiterated that the claim was not properly served and that it fails to state a cause of action.

As stated with sufficient particularity in the Eight affirmative defense, the court lacks jurisdiction based upon the failure to serve the claim by one of the authorized methods. Court of Claims Act §§10 and 11. Court of Claims Act §11(a)(i) provides that “. . . a copy [of the claim] shall be served upon the attorney general . . . either personally or by certified mail, return receipt requested. . . ” within the time prescribed in Court of Claims Act §10[3]; and service is complete when it is received in the Attorney General’s Office. Service upon the Attorney General by ordinary mail is generally insufficient to acquire jurisdiction over the State, unless the State has failed to properly plead jurisdictional defenses[4] or raise them by motion. See Court of Claims Act §11(c).[5]

The defense has been properly pleaded, and alerted claimant to a basic infirmity to prosecuting his claim. Accordingly, the court is constrained to grant the motion, unless some other principle, such as the doctrine of equitable estoppel, is applied. See: Wattley v State of New York, 146 Misc 2d 968 (Ct Cl 1990)[6]; cf. Rivera v State of New York, 5 AD3d 881 (3d Dept 2004)[7]; Folks v State of New York, UID # 2006-009-077, Claim No. 112365, Motion No. M-71955 (December 19, 2006, Midey, J.).[8]

In this case, the elements for applying an estoppel do not appear to have been made out. Claimant merely testified that he was “rushed” somehow in pursuing his claim, when the events about which he appears to be complaining occurred seven (7) months before this claim was served and filed. No copies of any disbursement request forms for certified mail service, or indication on the letter itself of his intentions - the words “legal mail” written on the outside of the envelope [see Exhibit A] do not necessarily mean that the item should be sent certified mail, return receipt requested - or a copy of his inmate account statement showing a withdrawal for the correct amount, have been offered to substantiate his testimony. See. e.g. Wattley v State of New York, supra at 969.[9] No facility policies have been presented to support his assertion - a novel one to this court - that in order to utilize certified mail, return receipt requested postal service, a trip to the law library was required. Without more, the court cannot apply the doctrine of equitable estoppel to preclude the properly pled and raised jurisdictional defense, and the claim herein must be dismissed because the court lacks personal jurisdiction over the defendant. Given dismissal on this ground, the court does not reach the other grounds for dismissal raised by defendant.

Claim number 112411 is hereby dismissed.

Let judgment be entered accordingly.

November 26, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. All quotations are to trial notes or audio recordings unless otherwise indicated.
[2]. Claimant was apparently referring to Thomas v Brierly, 481 F2d 660 (3d Cir Ct App 1973), a 42 USC §1983 action involving alleged refusal by prison officials to allow plaintiff, a visitor to whom he had sent the required visitor’s pass, in an attempt to harass the inmate and discourage visits between the inmate and his family because of his race. The Third Circuit vacated the lower court’s dismissal of the action as frivolous, saying that at a minimum defendants should have been required to file a responsive pleading or make a motion. The court said “A refusal to allow a prisoner visitors because of his race would violate the equal protection clause of the Fourteenth Amendment . . . (citation omitted). And it is conceivable that the denial of visitation privileges without a reasonable justification might amount to cruel and unusual punishment . . . (citations omitted).” Thomas v Brierly, at 661.
[3]. Within ninety (90) days of its accrual.
[4]. Although the claim also would appear to be untimely, defendant did not raise the defense with particularity in its answer or in a pre-answer motion.
[5]. “Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in subdivision a of this section, or (iii) with the verification requirements as set forth in subdivision b of this section and rule three thousand twenty-two of the civil practice law and rules is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”
[6]. Court denied defendant’s motion to dismiss for improper service. Claimant said he had attached the disbursement form for certified mail to his claim, but it apparently fell off, and additionally presented evidence that his inmate account was debited for the cost of certified mail, return receipt requested service. “Absent sufficient rebuttal (see Cole v State of New York, 64 AD2d 1023, 1024), we find the circumstances call for the invocation of equitable estoppel to prevent defendant from being rewarded for its own apparent breach of duty . . . (citation omitted).” Wattley v State of New York, supra, at 969. Additionally, the facility had an additional obstacle to getting proof of service in place, in that an inmate would only receive a receipt indicating that the special mailing request had been approved and processed, without any initial documentation that the mail was delivered to the facility mailroom.

[7]. Claimant argued that he was entitled to invoke the doctrine of equitable estoppel because of the facility mailroom’s delay in processing his legal mail which resulted in the notice of intention being untimely filed. There is no mention of the manner of service. The appellate division determined that “. . . claimant . . . failed to demonstrate that the mailroom delay arose out of any omissions or malfeasance on the part of the facility’s mailroom personnel
. . . [A] review of the record reveals that the mailroom personnel followed proper procedures in processing claimant’s legal mail.”
[8].Court declined to invoke equitable estoppel saying: “although the Court finds that claimant made an initial request to facility officials to have his claim served by certified mail, return receipt requested, he has submitted no evidence whatsoever to establish that he pursued his request, or submitted any further information to facility officials when his initial request was denied for lack of supporting information.” Interestingly, claimant demonstrated that he had timely asked the mailroom to send the claim certified mail, return receipt requested, and that his request was denied with a note saying “Inmate must show proof that these envelopes are court mandated to be there by a certain date.”
[9].“While the mere allegation of a State failure to act is not sufficient to overcome the presumption of regularity (see e.g. Richardson, Evidence §72 [Prince 10th ed]), at bar we have the documentary equivalent of an admission by defendant that claimant’s mailing request was received and charged for, but not acted on . . . (citation omitted). Claimant did what he as supposed to do and all that defendant allowed . . . [thereby relying] on defendant’s employees to properly do their job . . . (citation omitted). Plainly it would be a manifest injustice in these particular circumstances to penalize claimant for the sins of negligence or intent committed by State officers or employees . . . (citation omitted).”