New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2008-015-038, Claim No. 114479, Motion No. M-74600


Motion for poor person status was 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):
Cross-motion number(s):

Claimant’s attorney:
Samuel Davis, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 26, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate acting pro se, seeks leave to proceed as a poor person and for the assignment of counsel. By Order filed December 6, 2007 (Sise, P.J.) the Court previously granted claimant's request for a reduction of the filing fee. Claimant alleges the following in his claim:
"On August 30, 2007 . . . while attending a call out-claimant was picked for a pat frisk search by officers. Claimant was then taken to hospital area room. Officers alleged to have found items. Claimant requested that an x-ray be conducted on my hair [as a proper procedure] to which was denied a few times. While claimant was handcuffed backward . . . Nurse Dave Lermann entered room with curette medical tool [against claimant objection in being a Rastafarian] and started probing/sticking into and in between my dreadlocks/hair forcefully in ripping/cutting and separating my dreadlocks in violation of my religious rights. Nurse Dave Lermann discovered nothing in my dreadlocks/hair.

* * *

Defendant’s actions left permanent damage to claimant’s dreadlocks/hair causing dreadlocks to become separated and ripped after years of dreads/hair being locked together."
CPLR 1101 sets forth the procedure for applying for poor person status and CPLR 1102 grants the Court discretion to assign an attorney. 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 has since been interpreted to include those situations in which a litigant is faced with a 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 view the allegations made here to be so compelling as to warrant the assignment of counsel.

Inasmuch as the filing fee has been addressed in the prior order and the claimant has failed to establish that the prosecution of this matter will require the additional payment of costs or fees, poor person status is unnecessary.

Accordingly, the claimant's motion is denied in its entirety.

May 26, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated February 25, 2008 and supporting papers attached thereto;
  2. Affidavit of Dennis M. Acton sworn to February 29, 2008.