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
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,
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
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
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
, 435 US 349 (1978), reh denied
436 US 951; Colin v County
, 181 AD2d 653 (2d Dept 1992), lv denied
80 NY2d 756
(1992); Sassower v Finnerty
, 96 AD2d 585, 586 (2d Dept.
, 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
Read as causes of action alleging violations of the United States
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
; 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.