New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2008-015-079, Claim Nos. 113704, 113705, Motion No. M-75628


Pro se inmate's motion for subpoenas denied where he failed to show proposed witnesses' testimony was both material and necessary to the prosecution of the claim.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113704, 113705
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney GeneralNo Appearance
Third-party defendant’s attorney:

Signature date:
October 17, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves for the issuance of ten judicial subpoenas compelling the attendance of various witnesses at trial, including correction officers, the Commissioner of the Department of Correctional Services, Assistant Commissioners of the Department of Correctional Services and one individual designated by the claimant as a "policy maker". Claimant alleges the following in claim number 113704[1]:
“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 an 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 [psychiatricatly] unable to program. . . causing a cruel and unusual environment of [tortment] and [torture] against a non-violent inmate, for no other reason than the [hue] in plaintiff pigmentation "(claim ¶ 2 [brackets in original])[2].

A similar motion was denied by Decision and Order filed June 12, 2008 (Pettus v State of New York , UID # 2008-015-046, Claim No. 113704 [Ct Cl, June 4, 2008] Collins, J.). It was noted in the prior Decision and Order that a party seeking a judicial subpoena to compel the attendance of a witness at trial must demonstrate 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). In support of the motion claimant argues the testimony of each of the individuals for whom the issuance of a judicial subpoena is sought is material and necessary to the prosecution of his claims because "[e]ach person presided over plaintiff's tier three hearing(s) and sentenced plaintiff to (SHU) confinement (in) complete violation of rules, laws, and directives created by (D.O.C.) (thereby) in complete violation of a (liberty interest) and causing plaintiff to suffer (torment) and (torture) . . ." (emphasis and parentheses in original).

To the extent the claimant alleges certain disciplinary hearings were conducted in violation of the applicable "rules, laws and directives" his recourse was to pursue review of the administrative determinations in Supreme Court pursuant to article 78. Collateral attack of the disciplinary determinations by way of a plenary action for money damages in the Court of Claims is inappropriate (Lublin v State of New York, 135 Misc 2d 419, 420 [Ct Cl 1987], affd 135 AD2d 1155 [1987], lv denied 71 NY2d 802 [1988]; O'Neal v State of New York, UID # 2008-015-506, Claim No. 112354 [Ct Cl, July 28, 2008] Collins, J.; Johnson v State of New York, UID # 2008-044-566, Claim No. 112789 [Ct Cl, July 24, 2008] Schaewe, J.). Assuming arguendo claimant successfully pursued review of the disciplinary determinations in an article 78 proceeding, which does not appear to be the case, claimant may attempt to establish the alleged violations by less intrusive means such as the submission of the hearing transcripts or prior orders annulling the disciplinary determinations. Witness testimony regarding the conduct of the disciplinary hearings is therefore unnecessary to the prosecution of the claim.[3]

Based on the foregoing, claimant has failed to establish that the attendance of the proposed witnesses at the trial of these claims is both material and necessary.

Accordingly, the claimant’s motion is denied.

October 17, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated September 29, 2008;
  2. "Affidavit/affirmation" of James Pettus sworn to October 2, 2008 with exhibits.

[1]. Claim number 113705 contains substantially the same allegations.
[2]. Quoted material is taken from the claim without correction.
[3]. Additionally, it is well-settled that conduct of correction employees taken in furtherance of authorized disciplinary measures is quasi-judicial in nature and entitled to absolute immunity (Arteaga v State of New York, 72 NY2d 212 [1988]).