New York State Court of Claims

New York State Court of Claims

RITCHIE v. THE STATE OF NEW YORK, #2008-030-513, Claim No. 114601, Motion No. M-74482


Synopsis


Motion to dismiss for failure to state a cause of action against the State of New York granted. Inmate claimant asserts multiple problems, from improper representation in his underlying criminal trial, a failure to receive mail and hot water, to inadequate medical care. Issues discussed: (1) “kiting” the claim served herein may subject claimant to prison discipline [see e.g., Directive 4422; 7 NYCRR §720.3(p)] but does not create jurisdictional issue provided claim served certified mail, return receipt requested. (2) Court of Claims may not direct the Governor to grant clemency since the matter is entirely vested in the executive branch. (3)Challenges to claimant’s underlying criminal conviction are appropriately addressed through post judgment motion process under Criminal Procedure Law Article 440 or through the direct appeal process, including any claim of ineffective assistance of counsel. (4) Judicial immunity bars any action against Judges of the State for their judicial acts. (5) No private civil action for money damages premised upon failure to provide access to the law library that would be justiciable in the Court of Claims. (6) Claims concerning not receiving Saturday mail, lack of hot water or heat in a cell, no food substitutes, no writing paper and inadequate commissary services do not form the basis for a cause of action for compensatory damages in the Court of Claims. If serious enough, such assertions might constitute the basis for a federal action, [see 42 USC §1983] or a basis for asserting an inmate grievance administratively, subject to judicial review in an Article 78 proceeding. (7) Allegation that on November 16, 2007 claimant was served fish at dinner despite alleged documentation in the medical records that he was allergic to fish, but how and whether he was harmed is not set forth. (8) General allegations that he was denied dentures and eyeglasses, with no indication of when and how he was harmed by these alleged omissions. Cannot be discerned from a plain reading of the claim that a cause of action for negligence or medical malpractice is stated.

Case Information

UID:
2008-030-513
Claimant(s):
SETH RITCHIE
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
RITCHIE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114601
Motion number(s):
M-74482
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
SETH RITCHIE, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
March 5, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on defendant’s pre-answer motion to


dismiss the claim:

1,2 Notice of Motion; Affirmation by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibit

3,4 Motion in Opposition to Dismiss and Affirmation by Seth Ritchie, Claimant dated January 29, 2008; Add on to Motion in Opposition to Dismiss and “Affirmation” by Seth

Ritchie, Claimant sworn to February 5, 2008

  1. Filed paper: Claim
Seth Ritchie, an inmate proceeding pro se, alleges in his claim that the defendant should be held liable for “Negligence, Mental Anguish, Cruel and unusual punishment, violation of rights under state laws rules and regulations, Breech [sic] of Written agreement/promises,” during (and before) his incarceration at various correctional facilities operated by the New York State Department of Correctional Services [DOCS]. [Claim No. 114601, ¶2]. Many of the complaints articulated in the pleading appear to stem from Mr. Ritchie’s representation by counsel during his criminal trial, including complaints that the attorney made light of his past history of abuse and mental illness, and failed to pursue various lines of defense during the criminal prosecution and trial in July 2006. He also asserts failures by the “Commission on Judicial Conduct and the Departmental Disciplinary Committee” relative to complaints he voiced about his representation, and about the judge presiding over the trial. [Claim No. 114601,¶¶24, 25].

According to the claim, Mr. Ritchie was sentenced on October 16, 2007, [Claim No. 114601, ¶14], and placed in DOCS custody at Downstate Correctional Facility [Downstate] on October 24, 2007. [Claim No. 114601, ¶ 28]. He was transferred to Elmira Correctional Facility [Elmira] on November 19, 2007, where he is currently housed. [Claim No. 114601, ¶¶ 4 and 5; Motion in Opposition to Dismiss and Affirmation by Seth Ritchie, ¶19].

Once at Downstate, he asserts there was no hot water in the showers, and he was placed in a cell with no heat, among other things. There and later at Elmira, he alleges he was denied consideration for clemency, access to the law library, dental treatment, optometry treatment, alternative food choices, and did not receive mail service on Saturdays. He asserts that the commissary services were inadequate.

The claim was served upon the Office of the Attorney General by certified mail, return receipt requested on December 13, 2007. [Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General, ¶4, Exhibit A].

Defendant moves to dismiss the claim on several different grounds, largely premised on claimant’s failure to adequately state causes of action justiciable in this Court. First, defendant argues that because claimant violated prison disciplinary rules prohibiting “kiting” of mail, by sending the claim herein to a friend, who then mailed the claim certified mail, return receipt requested to the Office of the Attorney General, a jurisdictional issue is created with regard to commencement of the action in this court. [Affirmation in Support of Motion to Dismiss by Jeane L. Strickland Smith, Assistant Attorney General, ¶¶ 4 and 5]. The friend, it is argued, is not an attorney, and is therefore not authorized to serve the claim. [Id.]. Mr. Ritchie has indicated that Esther M. Caldroney, the friend in question, has his power of attorney and asks that all correspondence be sent to her at her address in Bronx County. [See Claim No. 114601].

Court of Claims Act §11(a) provides that the claim must be served personally or by certified mail, return receipt requested, upon the attorney general within the times prescribed in Court of Claims Act §10; and that service is complete when it is received in the Attorney General’s Office. Court of Claims Act §11(a)(i). A failure to timely and properly serve the claim as required results in a lack of personal jurisdiction, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. In that case, the defense is waived. Court of Claims Act §11(c).[2] Failure to serve the claim at all results in a lack of subject matter jurisdiction that is not waivable.

While the claimant herein may have opened the door to discipline within the facility because of violation of prison directives and regulations concerning “kiting” outgoing mail, [see e.g. Directive 4422; 7 NYCRR §720.3(p)], there is nothing in the Court of Claims Act creating an issue of jurisdictional dimension associated with a person who is neither a party or an attorney serving the claim on behalf of a claimant. Indeed, unlike in most courts, the Court of Claims allows a person who is a party to serve his own claim by means of certified mail, return receipt requested. See Civil Practice Law and Rules § 2103(a); Bailey v State of New York, UID # 2005-036-104, Claim No. 106695, Motion No. M-70417 (Schweitzer, J., November 10, 2005). Thus assuming that the claim was timely served, the method of service was as required under the Court of Claims Act.

Second, defendant argues that given the limited subject matter jurisdiction of the Court of Claims [see generally Court of Claims Act §9], the court may not direct a state officer to perform an act, such as directing participation in programs or directing the Governor to grant clemency. Requests for equitable relief more properly belong before the Supreme Court in an Article 78 proceeding. See Civil Practice Law and Rules §7801; [Morgan v State of New York, 13 AD3d 497, 498 (2d Dept 2004), lv denied 4 NY3d 708 (2005); Madura v State of New York, 12 AD3d 759, 761 (3d Dept 2004), lv denied 4 NY3d 704 (2005); Safety Group No. 194--New York State Sheet Metal Roofing & A. C. Contrs. Assn. v State of New York, 298 AD2d 785 (3d Dept 2002); Ohnmacht v State of New York, 14 Misc 3d 1231(A) (Ct Cl 2007).

More specifically, the Court of Claims may not direct the Governor to grant clemency since the matter is entirely vested in the executive branch. New York State Constitution Article IV, §4; Executive Law §15; People v Bedell, 210 AD2d 922, 923-924 (1994), lv denied 85 NY2d 935 (1995); People v Sean D., 11 Misc 3d 1055(A) (NY County Ct 2006).

Third, the State notes, and the Court agrees, that challenges to the claimant’s underlying criminal conviction are appropriately addressed through post judgment motion process under Criminal Procedure Law Article 440 or through the direct appeal process, including any claim of ineffective assistance of counsel. Judicial immunity bars any action against Judges of the State for their judicial acts, and the State is not liable for a judicial officer’s alleged errors. Unless the judicial acts were performed without any jurisdiction over the subject matter, judicial immunity applies. Stump v Sparkman, 435 US 349 (1978), reh denied 436 US 951; Colin v County of Suffolk, 181 AD2d 653 (2d Dept 1992), lv denied 80 NY2d 756 (1992); Sassower v Finnerty, 96 AD2d 585, 586 (2d Dept. 1983)[3], appeal dismissed 61 NY2d 756 (1984); see also Murray v Brancato, 290 NY 52 (1943).

Fourth, there is no private civil action for money damages premised upon failure to provide access to the law library that would be justiciable in the Court of Claims. See Jacobs v State of New York, 193 Misc 2d 413, 416-417 (Ct Cl 2002); Gagne v State of New York, UID # 2001-013-029, Claim No. 98686, Motion No. M-63259 (Patti, J., November 30, 2001). Similarly, claims concerning not receiving Saturday mail, lack of hot water or heat in a cell, no food substitutes, no writing paper and inadequate commissary services do not form the basis for a cause of action for compensatory damages in the Court of Claims. If serious enough, such assertions might constitute the basis for a federal action, [see 42 USC §1983] or a basis for asserting an inmate grievance administratively, subject to judicial review in an Article 78 proceeding.

Read as causes of action alleging violations of the United States Constitution[4] they must also be dismissed. It is well established that claims alleging violation of an individual’s rights under the United States Constitution are not actionable in the Court of Claims. See Brown v State of New York, 89 NY2d 172 (1996). If the present claim can be read to allege violation of provisions of the New York State Constitution - and this is not clear from a fair reading of the claim - it is also established that not every violation of a State constitutional provision will have a remedy implied in the Court of Claims. Brown v State of New York, supra; Remley v State of New York, 174 Misc 2d 523 (Ct Cl 1997). As noted, many of the infirmities complained of would be more appropriately addressed through the administrative or appellate process.

Finally, the defendant argues that the allegations involving lack of medical and dental treatment fail to conform with the pleading requirements of Court of Claims Act §11(b). The statute provides that “[t]he claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained . . . [and] shall be verified in the same manner as a complaint in an action in the supreme court.” Court of Claims Act §11(b). From a reading of the claim, although the information is buried in a litany of complaints, there is an allegation that on November 16, 2007 he was served fish at dinner despite alleged documentation in the medical records that he was allergic to fish, but how and whether he was harmed is not set forth. [Claim No. 114601,¶48]. There are additional allegations that he was denied dentures and eyeglasses, but he does not indicate when and how he was harmed by these alleged omissions. [Ibid. ¶¶ 70 and 71].

To establish a prima facie case of negligence the following elements must exist: (1) that the defendant owed the claimant a duty of care; (2) that defendant failed to exercise the 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. In a medical malpractice claim, the claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) evidence that such deviation was the proximate cause of the injury or other damage. A claimant must establish that the medical care giver either did not possess or did not use reasonable care or best judgment in applying the knowledge and skill ordinarily possessed by practitioners in the field, and that any injury was proximately caused by such failure. Thus, the court agrees that it cannot be discerned from a plain reading of the claim that a cause of action for negligence or medical malpractice is stated.

In papers submitted in opposition to the motion, claimant repeats some of the allegations and adds new ones. [See Motion in Opposition to Dismiss and Affirmation by Seth Ritchie; Add On to Motion in Opposition to Dismiss and Affirmation by Seth Ritchie].

In a motion to dismiss a claim for failure to state a cause of action the movant is held to have conceded the truth of every fact alleged by the claimant for purposes of the motion. §3211(a)(7) Civil Practice Law and Rules. Determination of the motion, generally, does not rest upon resolution of the ultimate facts, but rather on whether those facts asserted make out a claim. See Stukuls v State of New York, 42 NY2d 272, 275 (1977); cf.: Rovello v Orofino Realty Co., Inc., 40 NY2d 633 (1976). Since no evidentiary material has been proffered on the motion, the court must look only at the pleading at issue to determine - again assuming all the facts asserted are true - whether any legally cognizable claim has been stated. Guggenheimer v Ginzburg, 43 NY2d 268, 275 (1977).

Based on the foregoing, defendant’s motion to dismiss the claim for a failure to state a cause of action against the State of New York is hereby granted, and Claim No. 114601 is in all respects dismissed.

March 5, 2008
White Plains, New York

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




[2]. “Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in . . . [11(a)], or (iii) the verification requirements as set forth in . . . [11(b)] and . . . [Civil Practice Law and Rules 3022] is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.”
[3]. “Judicial immunity extends to all Judges and encompasses all judicial acts, even if such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly . . . (citations omitted) There is a distinction between acts performed in excess of jurisdiction and acts performed in the clear absence of any jurisdiction over the subject matter. The former is privileged, the latter is not (citation omitted in original [Murray v Brancato, supra]) . . . The acts complained of in the amended complaint were performed by the . . . [respondent Surrogates] while in the exercise of their judicial roles. Although said acts may have been in excess of their jurisdiction [based on knowledge acquired outside the evidence before them], they were not performed in the complete absence of jurisdiction . . . ” Sassower v Finnerty, supra, at 586-587.
[4]. Such as denial of access to courts or to use of a law library. See Jacobs v State of New York, supra; Gagne v State of New York, supra.