New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2008-044-521, Claim No. 112968, Motion No. M-74181


Synopsis


Claimant’s motion to amend his claim to included causes of action for abuse of process and civil conspiracy is denied. Claimant cannot establish the element of legal process necessary to an abuse of process claim. Further, New York permits allegations of conspiracy solely to connect the actions of separate defendants with an otherwise actionable tort; because the individuals cited by claimant are not subject to suit in the Court of Claims, the cause of action cannot stand.

Case Information

UID:
2008-044-521
Claimant(s):
GENO BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112968
Motion number(s):
M-74181
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
GENO BROWN, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 5, 2008
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

Decision

Claimant, an inmate proceeding pro se, filed this claim alleging negligence and false imprisonment against defendant State of New York (defendant).[1] Claimant alleges that on November 15, 2005, he was transferred from Southport Correctional Facility (Southport) to Elmira Correctional Facility (Elmira) and held in a psychiatric observation cell for 2 days, and then continuously held in an isolation room for approximately 30 days thereafter, all without legitimate cause. Claimant further alleges that he was transferred back to Southport on December 13, 2005 and then to Auburn Correctional Facility (Auburn) on December 20, 2005, and that those transfers occurred without due process. Claimant also alleges that on December 19, 2005, his mental health service level classification was dropped to a level one and has remained at that level since that time.[2] Defendant answered and asserted various affirmative defenses. Claimant now moves to amend the claim to assert causes of action for abuse of process and civil conspiracy arising out of the incidents occurring in November 2005 and December 2005, and to assert additional causes of action for false imprisonment, negligence, and abuse of process for incidents purportedly occurring in June 2007 and September 2007. Defendant opposes the motion.

Claimant argues that the factual allegations existing in this claim support a cause of action for abuse of process based upon defendant’s use of the “involuntary civil committment [sic]/confinement process” as retaliation against claimant to silence his grievances and protests. Claimant contends that he also sets forth a cause of action for civil conspiracy based upon the actions of the Department of Correctional Services (DOCS) and the Office of Mental Health (OMH) (specifically employees Denise Fuller and Peter Russell) in the involvement of his transfer from Southport to the Mental Housing Unit (MHU) at Elmira. Conversely, defendant asserts that the proposed causes of action for abuse of process and civil conspiracy are without merit.

CPLR 3025 (b) provides that “[a] party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court” (see Uniform Rules for the Court of Claims [22 NYCRR] § 206.7 [b]). Leave to amend “should be freely given unless the proposed amendments plainly lack merit or would cause the nonmoving party to suffer prejudice or unfair surprise” (Bastian v State of New York, 8 AD3d 764, 765 [2004]). The determination of whether to grant leave to amend a pleading is left to the sound discretion of the Court (see generally Eddy v White, 304 AD2d 959 [2003]; Ferran v Williams, 281 AD2d 819 [2001], lv dismissed 97 NY2d 653 [2001]). In addressing an application to amend, the Court should consider whether there would be any prejudice to the opposing party; the effect, if any, an amendment would have on the orderly prosecution of the action; whether there was undue delay in seeking the amendment; and whether the proposed amendment is palpably improper or insufficient as a matter of law (see e.g. Nunez v State of New York, Ct Cl, June 26, 2002, Scuccimarra, J., Claim No. 104574, Motion No. M-65275 [UID # 2002-030-525]). Leave should be denied in situations where the proposed amendment lacks merit as a matter of law (see Bastian v State of New York, supra).

In order to set forth a cause of action for abuse of process, a claimant must “demonstrate regularly issued process, either civil or criminal, an intent to do harm without excuse or justification, and use of the process in a perverted manner to obtain a collateral objective” (Plataniotis v TWE-Advance/Newhouse Partnership, 270 AD2d 627, 630 [2000]; see also Curiano v Suozzi, 63 NY2d 113 [1984]; Board of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397 [1975]). Because legal process was not issued against claimant, he cannot establish a necessary element of that proposed cause of action. Accordingly, the proposed cause of action for abuse of process based upon the incidents occurring in November 2005 and December 2005 is clearly insufficient as a matter of law.

Claimant’s proposed cause of action for civil conspiracy must also fail. It is well settled that New York does not recognize conspiracy to commit a tort as an independent cause of action, and permits allegations of conspiracy solely “to connect the actions of separate defendants with an otherwise actionable tort” (Alexander & Alexander of N.Y. v Fritzen, 68 NY2d 968, 969 [1986]; see also Factory Point Natl. Bank v Wooden Indian, 198 AD2d 563, 565 [1993]). Claimant cannot sue DOCS and OMH or their individual employees in this Court, as the State is the sole proper defendant in the Court of Claims. Consequently, claimant’s allegations regarding the conduct of Fuller and Russell in participating in his transfer from Southport to Elmira’s MHU and his subsequent retention in an isolation cell do not support a cause of action for civil conspiracy. Because the proposed causes of action for both abuse of process and civil conspiracy lack merit, claimant’s application to amend the claim to include them is denied.

As previously set forth, claimant is also requesting permission to amend the claim to assert additional causes of action for false imprisonment, negligence, and abuse of process, allegedly arising from three incidents occurring in June 2007 and September 2007 at Auburn. Defendant also opposes this portion of the motion, contending that the proposed causes of action are unrelated to the allegations in the claim as originally filed.

The first incident occurred on June 9, 2007. Claimant alleges that he received the noon meal from the Kosher serving line (being on a Kosher diet). Claimant states that while attempting to exit the mess hall, a correction officer informed claimant that his name had been removed from the Kosher diet list and that he was therefore stealing the meal. Claimant alleges that he was issued a misbehavior report, found guilty of various charges, and was sentenced to 10 days keeplock and 14 days loss of packages, commissary and phone privileges. Claimant asserts that as a result of being denied the Kosher diet, he engaged in a hunger strike and was confined in an isolation room from June 12, 2007 through June 19, 2007.

Claimant states that the second incident occurred on June 29, 2007, when a correction officer allegedly confiscated a videotape (which he asserts was legal material related to a separate Federal Court action) that defendant has since apparently lost. Claimant states that his inmate grievance concerning this videotape was denied and that determination was affirmed on administrative appeal.

The third incident occurred in September 2007. Claimant states that he began a second hunger strike on September 12, 2007 in order to bring his grievances about mistreatment and harassment by the staff in SHU to the Executive Staff. Claimant asserts that defendant failed to follow its own regulations by not instituting hunger-strike protocol until he was taken to the infirmary and interviewed by Nurse Sharple on September 21, 2007. Claimant alleges that he was then held in an isolation room without legitimate cause or justification from September 21 -26, 2007.

Initially, a proposed additional cause of action for abuse of process based upon any of these three incidents is without merit. As discussed previously (see supra at 3-4), a claimant’s failure to establish that defendant issued legal process against him is fatal to that cause of action (see Curiano v Suozzi, supra; Plataniotis v TWE-Advance/Newhouse Partnership, supra).[3] Because legal process was not issued against claimant in these incidents, permission to amend the claim to assert this cause of action is therefore denied.

To the extent that claimant is attempting to assert a bailment cause of action for the allegedly lost videotape, it is also legally insufficient. Although claimant states that he filed an institutional property claim concerning this item, he has failed to include a copy of that claim and defendant’s determination thereof. Because claimant has not established that he exhausted his administrative remedies with respect to the proposed bailment claim as required by Court of Claims Act § 10 (9), this proposed cause of action is premature and thus lacks merit. Permission to include it in this claim is also denied.[4]

Regarding the final proposed amendments the Court noted previously, the incidents giving rise to the causes of action originally set forth in this claim occurred in November 2005 and December 2005 at Southport and Elmira. The underlying actions pertaining to the proposed additional causes of action for false arrest and negligence occurred in June 2007 and September 2007 at Auburn. The proposed additional causes of action for false imprisonment and negligence which are based upon claimant’s placement in an isolation cell are similar in nature to the existing causes of action. However, the underlying conduct supporting those causes of action occurred at a different correctional facility and necessarily involves different witnesses. The proposed cause of action for false imprisonment based upon the disciplinary sanction imposed from the misbehavior report issued for the June 9, 2007 incident, as well as the proposed cause of action for negligence based upon claimant’s removal from the Kosher diet, likewise involves occurrences that took place at Auburn. Additionally, the conduct underlying the existing causes of action occurred approximately two years earlier and has no apparent relevance to the proposed additional causes of action. Moreover, the circumstances surrounding claimant’s placement in the isolation cell may be markedly different for each separate incident, and discovery in the existing causes of action has already taken place. Allowing an amendment to assert the proposed additional causes of action for false imprisonment and negligence would disrupt the orderly prosecution of this claim.[5] Permission to amend the claim to include these proposed additional causes of action is therefore denied.

In conclusion, the proposed causes of action for abuse of process and civil conspiracy, based upon the existing allegations in this claim, and the proposed cause of action for abuse of process based upon the incidents occurring in June 2007 and September 2007, all lack merit as a matter of law. Further, those incidents which allegedly support additional causes of action for false imprisonment and negligence occurred at a different correctional facility almost two years after the events which culminated in this claim, and thus would have a negative effect on the orderly prosecution of this action. Lastly, to the extent that claimant seeks compensation for lost personal property, that proposed cause of action is premature. Accordingly, claimant’s Motion No. M-74181 is denied in its entirety.

March 5, 2008
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion:

1) Notice of Motion filed on November 5, 2007; Affidavit of Geno Brown sworn to on October 29, 2007, and attached exhibit.

2) Affirmation in Opposition of Roberto Barbosa, AAG, dated November 9, 2007, and attached Exhibit A.

Filed papers: Claim filed on November 1, 2006; Verified Answer filed on November 30, 2006.


[1]. Claimant also initially asserted causes of action alleging fraud, medical malpractice, and constitutional torts which were previously dismissed by this Court (Brown v State of New York, Ct Cl, July 16, 2007, Schaewe, J., Claim No. 112968 , Motion No. M-72986; Cross Motion No. CM-73073).
[2]. Level one designation is “the most intensive level of care for the purpose of medication monitoring by psychiatric/nursing staff [and] requires one-to-one administration of medication by a nurse” (Arias v State of New York, 195 Misc 2d 64, 65 [2003]).
[3]. Although claimant has not set forth any specific alleged conspiratorial conduct based upon the June 2007 and September 2007 incidents, any proposed cause of action for conspiracy would fail for the same reasons previously set forth in this Decision and Order (see supra at 4).

[4]. To the extent that claimant is challenging the outcome of any inmate grievance filed as a result of that matter, his appropriate remedy would be commencement of a CPLR article 78 proceeding in Supreme Court (see generally Matter of Davis v Goord, 21 AD3d 606, 609 [2005], lv dismissed and denied 5 NY3d 861 [2005]).
[5]. The proposed cause of action for negligence based upon defendant’s alleged failure to follow the DOCS regulation pertaining to privileged correspondence likewise concerns conduct at Auburn and including it in this claim would also disrupt the orderly prosecution of this claim.