New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2007-044-576, Claim No. 113751, Motion Nos. M-73637, M-73639, CM-73675


Synopsis


Defendant’s motion to dismiss the claim as untimely is granted. The cause of action for wrongful confinement accrued on March 31, 2006 (at the latest) and even though a notice of intention was timely served, this claim filed on May 25, 2007 is clearly untimely. Because this claim is not identical to a previous timely filed and served claim, claimant is not entitled to the benefit of CPLR 205 (a). Claimant’s motion for assignment of counsel and for a speedy jury trial, and his cross motion for summary judgment, are denied as moot.

Case Information

UID:
2007-044-576
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):
113751
Motion number(s):
M-73637, M-73639
Cross-motion number(s):
CM-73675
Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
JAMES PETTUS, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 26, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, filed this claim alleging that he was confined in a Special Housing Unit (SHU) at both Elmira Correctional Facility (Elmira) and at Cayuga Correctional Facility (Cayuga) as disciplinary penalties for violations of those facilities’ correspondence procedures (which he argues are not serious infractions), and also for his failure to comply with Cayuga’s strip frisk procedure.[1] Claimant alleges that as a result of four Tier III disciplinary hearings (the transcripts of which are attached to the claim), he was denied parole. In lieu of filing and serving an answer, defendant moves (Motion No. M-73639) to dismiss the claim as untimely.[2] Claimant opposes the motion. Claimant moves (Motion No. M-73637) for assignment of counsel and for a “(jury) trial (speedy).” Defendant opposes claimant’s motion and claimant replies. Claimant also cross-moves (Cross Motion No. CM-73675) for summary judgment. Defendant opposes the cross motion. Defendant’s motion to dismiss is potentially dispositive, and therefore, it will be addressed first. The essence of claimant’s claim is that the disciplinary penalty of serving time in SHU was not authorized for his infractions, and thus he was wrongfully confined.[3]

Court of Claims Act § 10 (3-b) requires that in an action to recover damages for personal injuries caused by an intentional tort of an officer or employee of the State, the claim must be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served within that time. If a notice of intention is timely served, the claimant must file and serve a claim within one year of the claim’s accrual (Court of Claims Act § 10 [3-b]). “A cause of action for [the intentional tort of] wrongful confinement within the prison context accrues upon the termination of confinement” (Carlisle v the State of New York, Ct Cl, Dec. 5, 2006, Hudson, J, Claim No. 109283, Motion No. M-72193, [UID # 2006-034-612]; see Ramirez v State of New York, 171 Misc 2d 677, 679-680 [1997]).

Although claimant alleges that the claim accrued on February 28, 2007, there is no factual support for that allegation. Claimant has attached the transcripts of four disciplinary hearings (which took place between February 2004 and August 2005) to his claim. However, a cause of action for wrongful confinement arising from any of those hearings is untimely. In the first Tier III disciplinary hearing (for incidents which occurred on February 18, 2004), claimant was found guilty of creating a disturbance, interfering with an employee, disobeying a direct order and refusing to be searched or frisked. On March 3, 2004, claimant received a penalty for these incidents of 120 days in SHU with loss of package, commissary and phone privileges, as well as a three-month loss of good time. This determination was administratively modified on April 26, 2004 by decreasing the penalty from 120 days to 90 days. Based upon the length of that penalty and absent any evidence to the contrary, claimant was released from SHU on June 1, 2004. In order to be timely, a claim was required to be filed and served by August 30, 2004.[4] Accordingly, this claim filed on May 25, 2007 is untimely with respect to a cause of action for wrongful confinement relating to the penalty ensuing from that first disciplinary hearing.

Claimant was found guilty of failure to comply with correspondence procedures in a second Tier III disciplinary hearing held in July 2004. Claimant was sentenced to 30 days keeplock, and loss of commissary, package and phone privileges on July 26, 2004, and that determination was administratively affirmed on September 13, 2004. Because claimant’s keeplock penalty would have expired on August 25, 2004, a claim must have been filed and served by November 23, 2004.[5] Clearly, this claim (filed on May 25, 2007, as previously mentioned) is untimely with respect to a cause of action for wrongful confinement based upon that second hearing.

In May 2005, claimant was found guilty of harassment and violation of facility correspondence procedures in a third Tier III hearing. On May 31, 2005, he was sentenced to six months in SHU and loss of package, commissary, and phone privileges for six months (although four months were suspended), as well as loss of three months good time. That determination was affirmed upon administrative review on July 13, 2005. Even if the penalty had not been suspended, this cause of action for wrongful confinement would have accrued, at the latest, on November 30, 2005 when claimant would have been released from SHU. A claim for wrongful confinement based upon this hearing was required to be filed and served by February 28, 2006. Accordingly, this claim is untimely with respect to a cause of action accruing as a result of that third hearing.[6]

Lastly, a fourth Tier III disciplinary hearing was held for incidents occurring on July 27, 2005 and July 28, 2005, and claimant was found guilty of violating facility correspondence procedures, forgery, and/or counterfeiting. The previously suspended four-month sentence in SHU and related loss of privileges issued in the May 2005 hearing were reinstated, and claimant was sentenced to an additional four months in SHU as well as loss of package, commissary, and phone privileges for that time. This determination was administratively affirmed on September 21, 2005. Claimant’s confinement in SHU terminated on March 31, 2006, and on its face, a cause of action based upon the fourth hearing is untimely.[7]

However, claimant asserts that this claim is a “re-submission” of Claim No. 112243 (the first claim) and that he previously served a notice of intention. The first claim was apparently both timely filed on April 21, 2006 and timely served, but was dismissed pursuant to Kolnacki v State of New York (8 NY3d 277 [2007]) because it did not contain the total sum claimed as damages (Pettus v State of New York, Ct Cl, Apr. 18, 2007, Collins, J., Claim No. 112243, Motion No. M-72677, Cross Motion No. CM-72791). Accepting claimant’s allegation that he timely served a notice of intention as true, his time in which to file and serve a claim was only extended for one year from the date of accrual (see Court of Claims Act § 10 [3-b]). Because any cause of action in the first claim accrued prior to April 21, 2006, this claim filed with the Clerk of the Court on May 25, 2007 is clearly untimely.

Moreover, the Court has reviewed the first claim and finds that this claim is not a “resubmission” of the first claim. The first claim alleged that claimant was wrongfully confined in SHU, and referenced “exhibits attached of hearings.” Unfortunately for claimant, no exhibits were attached to the first claim and his later motion to incorporate such hearing transcripts was denied (Pettus v State of New York, Ct Cl, Aug. 31, 2006, Collins J., Claim No. 112243, Motion Nos. M-71775, M-71776 [UID # 2006-015-118]). Therefore, the Court finds that this claim is not a “resubmission” of the first claim, and claimant is not entitled to the benefit of the six-month extension in which to commence a second action pursuant to CPLR 205-a (see Signature Health Ctr., LLC v State of New York, 42 AD3d 678 [2007]).

Defendant’s motion to dismiss the claim as untimely is granted. Claimant’s motion for assignment of counsel and for a “(jury) trial (speedy)” and his cross motion for summary judgment are denied as moot.[8]

October 26, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion, defendant’s motion and claimant’s cross motion:

1) Claimant’s Notice of Motion (Motion No. M-73637) filed on June 20, 2007; “Affidavit/Affirmation” of James Pettus sworn to on April 17, 2007, and attached exhibits.

2) “Affidavit/Affirmation” of James Pettus sworn to on June 26, 2007, in further support of his motion.

3) Defendant’s Notice of Motion (Motion No. M-73639) filed on June 29, 2007; Affirmation of Roberto Barbosa, AAG, dated June 28, 2007, and attached Exhibit A.

4) “Affidavit/Affirmation” of James Pettus sworn to on June 19, 2007, in opposition to defendant’s motion to dismiss (Motion No. M-73639),[9] and attached exhibits.
5) Claimant’s Notice of Cross Motion (Cross Motion No. CM-73675) filed on July 6, 2007; Affidavit/Affirmation of James Pettus sworn to on July 5, 2007, and attached exhibits.

6) Affirmation of Roberto Barbosa, AAG, dated July 23, 2007, in opposition to claimant’s cross motion.


Filed papers: Claim No. 112243 filed on April 21, 2006; DECISION AND ORDER,
Collins, J., Claim No. 112243, Motion No. M-72677, Cross Motion No. CM-72791, filed on April 18, 2007; DECISION AND ORDER, Collins, J., Claim No. 112243, Motion Nos. M-71775, M-71776, filed on September 13, 2006; Claim No. 113751 filed on May 25, 2007.


[1]. Claimant contends that the strip frisk procedure is unconstitutional on its face (Hurley v Ward, 448 F Supp 1227 [1978], revd in part 584 F2d 609 [1978]). Notably, the Second Circuit found that the directive was unconstitutional only as it was applied to plaintiff Hurley, and vacated the blanket injunction which enjoined performance of the procedure on any inmate (Hurley v Ward, 584 F2d 609, [1978]). Although the strip frisk procedure challenged in Hurley was repealed on December 5, 1978 (see 7 NYCRR 1020.25), it is unclear under what procedure claimant was frisked.
[2]. Defendant also argues that claimant has failed to exhaust his administrative remedies. Although a claimant must exhaust all available administrative remedies prior to filing his claim in inmate personal property loss claims, no such requirement pertains to claims for wrongful confinement (Saif’ul’bait v State of New York, Ct Cl, Oct. 30, 2006, Schaewe, J., Claim No. 109838, Motion No. M-72395 [UID # 2006-044-512]).
[3]. Claimant asserts that as a result of these allegedly unauthorized penalties, he was denied parole. The Court of Claims has no jurisdiction to review a determination by the State Parole Board, and those challenges must be raised in CPLR article 78 proceedings in Supreme Court (see Matter of Legette v Travis, 11 AD3d 849 [2004]; Rivera v State of New York, Ct Cl, July 3, 2007, Ferreira, J., Claim No. 112907, Motion No. M-72570 [UID # 2007-039-024]).
[4]. There is no allegation that claimant served a notice of intention with respect to this hearing. Even if a notice had been served, the claim was required to be filed by June 1, 2005 (Court of Claims Act § 10 [3-b]).
[5]. Again, there is no evidence either that a notice of intention was served or that claimant was released on a later date.
[6]. see n 5, supra
[7]. see n 5, supra

[8]. In any event, both motions would nonetheless be denied on the merits. Claimant’s cause of action for wrongful confinement is not a complex matter and given his failure to serve the motion on the appropriate County Attorney, his request for assigned counsel would be denied.
Moreover, there is no right to a speedy trial in civil actions, prisoner pro se claims are scheduled at the Court’s discretion, and there is no right to a jury trial in the Court of Claims, all of which claimant has previously been informed (see e.g. Pettus v State of New York, Ct Cl, June 4, 2007, Schaewe, J., Claim No. 112504, Motion Nos. M-73126, M-73240 [UID #2007-044-547]; Pettus v State of New York, Ct Cl, May 15, 2007, Schaewe, J., Claim No. 112504, Motion No. M-72997). Accordingly, claimant’s motion for a “(jury) trial (speedy)” would be denied. Further, because defendant has not answered, issue has not been joined, and claimant’s motion for summary judgment is premature (see CPLR 3212 [a]).
[9]. Claimant submitted these documents in opposition to a motion to dismiss which was previously filed and then withdrawn by defendant. Because defendant thereafter submitted Motion No. M-73639, the Court considered claimant’s previously submitted papers as opposition to the motion.