New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2008-015-046, Claim No. 113704, Motion No. M-74725


Pro se inmate's motion for the issuance of judicial subpoenas 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:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 4, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves for the issuance of judicial subpoenas to compel the attendance of seven correction officers and Commissioner Fischer of the Department of Correctional Services to testify at trial.Claimant alleges the following in his claim:
“Petitioner who is non-violent was placed in a maximum security prison. . . with hostile, aggressive, anti-social and violent inmate's, who would beat, assault, rob, extort, and sexually harass [incessantly] which is on-going and, current. Then petitioner was [single-out] willfully, purposefully. . . with 'intent' to cause psychological torment and torture. By the placement into special confinement [SHU] without ever committing serious offense of Tier III. . . . Plaintiff was placed into [SHU] Southport, for [correspondence] and improperly spreading his butt cheek's when in fact, such as order/direction is [unconstitutional] on its face. . . . Causing plaintiff [health] [safety], [well-being] to degenerate to the point of permanent damage [both] psychologically and physically, where officials have placed plaintiff in [medical restriction status] and [M.P.U.] which means plaintiff is [medically] and [psychologically] unable to program. . . . causing a cruel and unusual environment of [tortment] (sic) and [torture] against a non-violent inmate, for no other reason than the [hue] in plaintiff pigmentation” (claim ¶ 2 [brackets in original]).

Pro se litigants are not included among those who are authorized to issue a subpoena (CPLR 2302 [a]). To obtain a judicial subpoena compelling the attendance of a witness at trial it must be shown that the anticipated testimony is both material and necessary to the prosecution of the action (Cerasaro v Cerasaro, 9 AD3d 663 [2004]; Sand v Chapin, 246 AD2d 876 [1998]; Brown v State of New York, Ct Cl, November 21, 2006 [Claim No. 108217, Motion No. M-72326, UID # 2006-044-516] Schaewe, J., unreported; Moley v State of New York, Ct Cl, May 25, 2006 [Claim No. 105084, Motion No. M-71335, UID # 2006-037-011] Moriarty, J., unreported). Claimant completely failed to support his request for subpoenas with any explanation as to why the testimony of seven correction officers and Commissioner Fischer is material and necessary to the prosecution of his claim and it certainly is not apparent from the allegations in the claim itself. Additionally, the claimant has failed to support his motion with proposed subpoenas or a properly sworn affidavit. The claimant is not a person who may submit an affirmation in lieu of an affidavit (see CPLR 2106; 2214 [b]; 22 NYCRR § 206.1 [c] and 206.8 [a]).

Accordingly, the claimant’s motion is denied.

June 4, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 25, 2008;
  2. "Affidavit/Affirmation" of James Pettus dated March 25, 2008;
  3. Affirmation of Glenn C. King dated April 11, 2008.