New York State Court of Claims

New York State Court of Claims

SIMMONS v. THE STATE OF NEW YORK, #2007-030-573, Claim No. NONE, Motion No. M-73791


Synopsis


Renewal motion granted, and on renewal late claim motion granted. Pro se inmate claims that he was ordered to cut his hair and shave his beard during intake procedure, in alleged violation of court order not to cut his hair for religious reasons. On renewal, he has now produced the court order, as well as correspondence from Attorney General’s Office suggesting DOCS knowledge of the order. Proposed claim asserts violation of the New York State Constitution Article 1, § 3, as it relates to his right to freedom of religious expression. Although Correction Law §610 provides vehicle to enforce such right, it does not imply a private right of action for money damages against the State of New York. Remaining causes of action for battery and/or negligence may be asserted in claim to be served and filed within 30 days of filing date of this decision.

Case Information

UID:
2007-030-573
Claimant(s):
ALPHONSO SIMMONS
Claimant short name:
SIMMONS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-73791
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARA
Claimant’s attorney:
ALPHONSO SIMMONS, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
October 23, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on claimant’s motion to “vacate” or “set


aside” the “judgment” denying claimant’s motion for late claim relief:

1-3 Notice of Motion; Affidavit in Support of Motion to Set Aside the Judgment and attached exhibits; Memorandum of Law

  1. Affirmation by Dewey Lee, Assistant Attorney General
  1. Filed papers: Simmons v State or New York, UID##2007-030-531; Claim No. None, Motion No. M-72704 (Scuccimarra, J., filed July 2, 2007) and underlying papers
A prior decision and order denied claimant’s application to serve and file a late claim. [See Simmons v State or New York, UID # 2007-030-531; Claim No. None, Motion No. M-72704 (Scuccimarra, J., filed July 2, 2007)]. The proposed claim appended by Mr. Simmons to his prior motion, and included with this motion, alleged the following in pertinent part:
“On September 29, 2006, I arrived at Downstate Correctional facility reception. During the intake procedure, I was ordered to cut my hair and shave my beard. I tried to explain to the officer that I had a Court Order not to cut my hair or shave my beard. During this time other officers came into the shower area and surrounded me. They told me that if I did not cut my hair that they would lock me up. I spoke to Officer Ekwerekwu and Sgt. Turso concerning this matter who claimed to have spoken to the Watch Commander. Both the Officer and the Sgt told me that there was nothing that could be done because it was a security issue. I was prevented from filing a grievance by Officer Ekwerekwu, who told me that reception inmates were not allowed to file grievances.” [Affidavit in Support of Motion to Set Aside the Judgment by Alphonso Simmons, claimant, Exhibit A].

Mr. Simmons then claimed he was damaged in the amount of $50,000.00. [Ibid.].

In a notice of intention to file a claim also appended to the prior motion, and apparently served simultaneously with the motion papers, claimant described the nature of his claim as “violation of court order not to cut claimant’s Alphonso Simmons’ hair and/or beard because of religious reasons.” [Ibid.].

Finally, in the document entitled “Motion for Permission to File a Late Claim”, claimant asserted his reasons for failure to timely serve his claim, as required by Court of Claims Act §10(6). [Ibid.]. No other factual recitation was included. No copy of any order, or any indication as to where any order emanated from, was included in claimant’s motion.

ln papers opposing the prior motion, the defendant submitted memoranda from the supervising officer in the draft processing area at Downstate on September 29, 2006, and the other correction officers assigned to that area on that day. None of the officers recalled an event having to do with a refusal to have a haircut. Sergeant Civitella, the supervising officer, noted that he was aware of the requirements of New York State Department of Correctional Services [DOCS] Directive 4914 concerning Inmate Grooming Standards, and that those inmates who refuse to comply with the initial haircut regulation for religious reasons and have a court order restraining DOCS from enforcing the initial haircut regulation, cannot be forced to comply.

The Court notes that the prior motion was served and filed in December 2006, and was finally submitted on April 18, 2007, after two requests for adjournment by Defendant.

The present application is treated as one to reargue or renew, and/or to serve and file a late claim, since there is no “judgment” to be vacated or set aside, but rather a decision and order by this Court essentially telling claimant he did not satisfy the court as to all or some of the factors required for late claim relief.

There is no prohibition against a subsequent application for late claim relief provided it is made within the applicable time period. A motion for late claim relief must be brought “. . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . . ” Court of Claims Act § 10(6). In the proposed claim, the claimant does not indicate exactly what the nature of his claim is, except to say that his hair was cut and his beard trimmed in violation of a court order. Here, assuming a battery cause of action, the applicable statute of limitations would be one (1) year; for a constitutional tort or negligence cause of action the applicable statute of limitations would be three (3) years. Civil Practice Law and Rules §§214; 215. Based on the accrual date of September 29, 2006 a motion for late claim relief is timely under the alternate theories.

With the present motion, Mr. Simmons has now attached papers in relation to a grievance he attempted to file related to his assertion that his hair was cut in violation of a court order, and to another grievance regarding denial of religious services. [Affidavit in Support of Motion to Set Aside the Judgment by Alphonso Simmons, claimant, Exhibit B]. Most of the attached documents about the grievances concern claimant’s efforts to establish that he indeed filed same, correspondence about the topic, and determinations of appeals finding that there were no records of the alleged grievances found. [See ibid.]. This process seems to have been engaged in simultaneously with the earlier motion for late claim relief brought in this court.

Before the September 29, 2006 accrual date alleged here, Mr. Simmons had been pursuing, apparently, relief in New York County Supreme Court with regard to obtaining an exemption from the haircut requirements pursuant to DOCS Directive 4914. [Affidavit in Support of Motion to Set Aside the Judgment by Alphonso Simmons, claimant, Exhibit E]. The case caption indicates that Mr. Simmons was (or is) a plaintiff, and Glen Goord, Commissioner of the New York State Department of Corrections is (or was) the defendant. [See ibid.]. A copy of the summons and complaint seeks declaratory relief against the commissioner, declaring Directive 4914 a nullity, and includes a prayer that defendant be directed to not cut plaintiff’s hair/beard. [See ibid.].

Significantly, an Interim Decision and Order from New York County Supreme Court dated September 20, 2006 indicating it is a non-final disposition, provides in one of the decretal paragraphs that it is
“ORDERED . . . Defendant shall not cut Plaintiff’s hair or trim Plaintiff’s beard until a decision is made by the Court on whether Plaintiff’s constitutional rights would be violated.” [See ibid.].


New York County Supreme Court wrote to the Attorney General’s Office on or about January 23, 2007, regarding the status of DOCS’ determination as to whether Mr. Simmons would receive an exemption or not. [Affidavit in Support of Motion to Set Aside the Judgment by Alphonso Simmons, claimant, Exhibit F]. On February 1, 2007, Assistant Attorney General Jose L. Velez - not the Assistant Attorney General who responded to the previous or present motions in this court - wrote to the New York County Supreme Court Justice who had issued the Interim Decision and Order. [See ibid.]. This letter explains:
“Pursuant to DOCS’ policy, an inmate who professes to be a Muslim is not entitled to an exemption from the initial haircut and shave requirement, because he is not a member of a religious sect recognized as exempt from the requirement . . . An inmate who professes to be a Muslim can refuse to have his initial hair cut, but he will be placed in the extended classification unit at the Downstate Reception Center . . . or in administrative segregation at all other facilities . . . In contrast, inmates who profess to be Rastafarian, Taoist, Sikh, American Indian, Orthodox Jew, or member of any other religious sect of a similar nature shall not be required to comply with the initial haircut regulation. An inmate who has a court order restraining DOCS from enforcing the initial haircut requirement cannot be forced or ordered to comply with the requirement. An inmate who has a Court order restraining DOCS from enforcing the beard shave requirement, shall be placed in the extended classification unit at Downstate or in administrative segregation at all other facilities . . .

Since plaintiff was not entitled to an exemption from the initial haircut and shave requirement when he was received at Downstate on September 29, 2006, he consented to have his hair cut and to a shave on that day in lieu of being placed in the extended classification unit at the facility. Although Your Honor’s Interim Decision was dated September 20, 2006, it was not mailed out until September 25, 2006, based on the post mark. The copy of the Interim Decision was received at my office on September 26, 2006 and I immediately faxed a copy to DOCS’ Counsel’s Office on that same day. Due to an inadvertent error it appears that Your Honor’s Interim Decision was not forwarded to Downstate in sufficient time to prevent the initial haircut and shave from taking place, albeit with plaintiff’s consent. In the future, plaintiff will not be subject to having his hair cut or beard trimmed consistent with the regulations delineated above. In addition, my Office has also forwarded a copy of the Court’s Interim Decision to Downstate and to plaintiff’s current facility of incarceration, Sing Sing Correctional Facility, with an instruction that plaintiff not be required to cut his hair or trim his beard until a decision is made by Your Honor regarding this issue.” [See ibid.].


On February 1, 2007, the Deputy Commissioner of DOCS wrote to claimant stating that DOCS was in receipt of his request for a permit exempting him from the “one inch beard rule,” and that DOCS was recommending that a permit be issued to claimant based upon his membership in the Muslim religion. [Affidavit in Support of Motion to Set Aside the Judgment by Alphonso Simmons, claimant, Exhibit G].

Repeating that when he arrived at Downstate he was “given an ultimatum to either cut his hair or get locked up . . . claimant was faced with an impossible set of choices, either violate his religious beliefs or face unnecessary disciplinary action,” [see Affidavit in Support of Motion to Set Aside the Judgment by Alphonso Simmons, claimant, ¶22], Mr. Simmons indicates that this violated his right to freedom of religious practice, in contravention of both the United States and New York State Constitutions, and New York Correction Law §610(1). He also asserts that the State “conspired to cover it up as is evident in Downstate’s refusal to answer the claimant’s grievances and the fact that the three Correction Officers and a Correction Sgt. cannot remember an incident that was admitted to by the State’s Assistant Attorney General 14 days prior to their depositions.[1]” [Ibid. ¶27].

In his Affirmation in response to the present motion, the Assistant Attorney General states “[m]ovant fails to raise a legally sufficient reason to support his application for this court to set aside its judgment, and thus, the motion should be denied.” [Affirmation by Dewey Lee, Assistant Attorney General, ¶2].
DISCUSSION AND CONCLUSION
“A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided . . . (citations omitted). Nor does reargument serve to provide a party an opportunity to advance arguments different from those tendered on the original application.” Foley v Roche, 68 AD2d 558, 567-568 (1st Dept 1979); Loris v S & W Realty Corp., 16 AD3d 729, 730 (3d Dept 2005); see §2221(d)(2) Civil Practice Law and Rules. Additionally, such a motion should be made within thirty (30) days after service of a copy of the order determining the prior motion, with notice of its entry, or in any event prior to the entry of any judgment by the appellate court to which an appeal has been taken. Civil Practice Law and Rules §2221(d)(3); see Bray v Gluck, 235 AD2d 72 (3d Dept 1997), lv dismissed, 91 NY2d 1002 (1998).

A renewal motion asks the Court to consider new facts not previously offered that would change the earlier determination, or a change in the law that would change the prior determination. Civil Practice Law and Rules §2221(e). With respect to new facts, however, the motion should contain “reasonable justification for the failure to present such facts on the prior motion.” Civil Practice Law and Rules §2221(e)(3); see Stocklas v Auto Solutions of Glenville, Inc., 9 AD3d 622, 625 (3d Dept 2004).

The papers submitted do not establish that the Court misapplied any controlling principle of law; therefore the motion for reargument is denied. The papers submitted do, however, include documentation which, for the most part based upon the dates of same, were not available earlier. Additionally, and as noted above, there is no proscription against repeated timely applications for late claim relief. Accordingly, the motion to renew is granted, and upon renewal and after consideration of all the pertinent factors the claimant’s application for late claim relief [Court of Claims Act §10(6)] is granted with certain limitations.

The Court notes initially that it has already considered the factors it must address[2] when reviewing an application for late claim relief in its prior decision and order, including the absence of any excuse, notice, opportunity to investigate and prejudice. In the earlier decision however, the court had said that given the memoranda from the correction personnel purportedly assigned to the area at the time there was no record of this incident, and thus the State’s ability to investigate would be impeded to its prejudice. Since this is clearly not the case given the additional information provided by claimant, the closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting claimant’s motion rather than the conclusion on these factors reached earlier.

What is often viewed as the most important factor, the appearance of merit, is the primary focus herein. A claim appears to be “meritorious” within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 (Ct Cl 1977).

Claimant’s proposed claim may be read as asserting violation of the New York State Constitution Article 1, § 3, as it relates to his right to freedom of religious expression. One vehicle for enforcing such rights is Correction Law §610.[3] This provision of the Correction Law, however, does not imply a private right of action for money damages against the State of New York.

To enforce their rights under the statute, persons “aggrieved . . . may institute proceedings in the supreme court of the district where such institution is situated, which is hereby authorized and empowered to enforce the provisions of this section.” Correction Law §610(3). When an inmate believes his rights under this statute may have been violated he must
“first exhaust . . . [his] administrative remedies through the inmate grievance process and, if unsuccessful, then commence an Article 78 proceeding in Supreme Court (Matter of Patterson v Smith, 53 NY2d 98 [1981]; Matter of Shahid v Coughlin, 83 AD2d 8, 10-11 [3d Dept 1981], affd 56 NY2d 987).” Van Duyne v State of New York,UID #2003-032-518, Claim No. 103802 (Hard, J. August 4, 2003).

With regard to violations of the federal constitution
“. . . The Court of Claims does not have jurisdiction over federal constitutional tort claims because the State is not ‘a person’ within the meaning of 42 USC §1983. . . (citations omitted).” Van Duyne v State of New York, supra.


With regard to stating a New York State constitutional tort claim, in this case no such relief would lie. This is because
“. . . ‘[w]here the injured party can take advantage of declaratory or injunctive relief, or remedies obtainable by way of an Article 78 proceeding, a viable alternative exists and obviates the need to recognize a constitutional tort in those situations (citations omitted)’ (Van Duyne v State of New York, Ct Cl, August 4, 2003 [Claim No. 103802], Hard, J, UID # 2003-032-518). Claimant had other remedies available to him making it unnecessary to establish a constitutional tort to ‘ensure the full realization of [his right to freedom of religious expression]’ (Brown v State of New York, 89 NY2d 172, 189).” Gill v State of New York, UID #2006-031-053, Claim No. 111941, Motion No. M-71385 (Minarik, J., August 28, 2006).


Here, a common law remedy exists by way of an action for battery, or for a negligent failure to follow its own regulations thus, no constitutional tort remedy need be applied to make the claimant whole.[4]

The remaining causes of action made out by the facts alleged in the proposed claim would be negligence, stemming from an alleged failure to follow its own regulations with regard to the administration of haircuts and policies regarding religious exemptions, or battery, stemming from the alleged lack of consent to the haircut.

To establish a prima facie case of negligence the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of claimant’s injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence.

Battery is the intentional physical contact with another person without that person’s consent. Coopersmith v Gold, 172 AD2d 982, 983 (3d Dept 1991); Mason v Cohn, 108 Misc 2d 674 (New York Co Sup Ct 1981), see Clayton v Keeler, 18 Misc 488 (New York Co Sup Ct 1896).

The proposed claim submitted herewith contains the narrative referred to above, without recitation in separate numbered paragraphs to allow a reasonably coherent answer on the State’s part. If as alleged in the claim and accompanying papers this claimant was treated in this fashion by the State’s agents, however, and viewing all of the allegations as true, there is the appearance of merit to at least a portion of the proposed claim.

Accordingly, the motion for late claim relief is granted, to the extent that claimant may serve a verified claim - although not the proposed claim attached herewith - upon the Attorney General, containing separately stated and numbered alternative causes of action for negligence and battery and file said claim with the Chief Clerk of the Court of Claims both within thirty (30) days from the date of filing of this decision and order in the Clerk’s office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to §§10 and 11, and the Uniform Rules for the Court of Claims.

October 23, 2007
White Plains, New York

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




[1].By “depositions” presumably the claimant is referring to the memoranda from correction personnel attached by the defendant to the papers it filed in opposition to claimant’s prior motion for late claim relief.
[2]. The factors stated in Court of Claims Act §10(6) are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available.
[3]. “...[P]ersons . . . [committed to correctional institutions are] entitled to the free exercise and enjoyment of religious profession and worship, without discrimination or preference." Correction Law §610(1).
[4].The factors the Court must consider to determine if a cause of action for a constitutional tort is properly brought in the Court of Claims are whether: (1) the applicable constitutional provision is self-executing; (2) monetary damage remedies further the purpose of the underlying constitutional provisions and necessarily assure its effectiveness; (3) the provisions are such that they impose a clearly defined duty on the State officers and/or employees; (4) declaratory and injunctive relief is inadequate; and (5) money damages necessarily deter governmental conduct and make the claimant whole.