New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2009-015-147, Claim No. 114633, Motion Nos. M-75953, M-75955


Synopsis


Pro se inmate's motion for summary judgment and to compel compliance with subpoenas was denied.

Case Information

UID:
2009-015-147
Claimant(s):
JAMES PETTUS
Claimant short name:
PETTUS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114633
Motion number(s):
M-75953, M-75955
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
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:
March 19, 2009
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, moves for summary judgment (M-75953) and to compel compliance with subpoenas (M-75955). The claim arises from the following acts or omissions of the defendant:
"I am charging the ( D.O.C.) with the deliberate indifference to the training, supervising, and discipling of employee's of (D.O.C.). As well as creating a policy and custom that is enforced as a law, when in fact, (volative) of established law and due process (equal protections) by systemically, methodically structured, planned and designed (beatings) of Black inmates for no penological reason or justification. Then putting into (SHU) for psychological torment and torture.

I am charging (C.O. Rositi) with the deliberate indifference to the safety, health, and well-being of inmate Pettus 03R-3597, as well as assault excessive use of force and battery by smacking plaintiff in the face three (3) times, then pushing and smashing against the wall while calling plaintiff "Nigger Trash" for no penological reason or justification. It was done because plaintiff is a black inmate."

It is well established that "'summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue'" (Rotuba Extruders, Inc.v Ceppos, 46 NY2d 223, 231 [1978] [citation omitted])http://web2.westlaw.com/find/default.wl?rs=WLW6.11&serialnum=1979103056&fn=_top&sv=Split&tc=-1&findtype=Y&tf=-1&db=605&vr=2.0&rp. "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. . . Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers " (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985] [citations omitted]). Here, claimant failed to establish his entitlement to judgment as a matter of law and the motion must therefore be denied regardless of the sufficiency of the defendant's opposing papers.

With respect to the claimant's motion to compel compliance with subpoenas, it too must be denied. The claimant's motion for the issuance of judicial subpoenas seeking certain documents from the defendant was denied by Decision and Order dated February 2, 2009, (M-75769). Thus, there are no outstanding subpoenas and the claimant's motion to compel compliance is therefore ill-founded.

Claimant's motions for summary judgment (M-75953) and to compel compliance with subpoenas (M-75955) are denied.


March 19, 2009
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:

Motion No. M-75953
1. Notice of petition dated November 15, 2008;
2. Petition of James Pettus sworn to November 17, 2008;
3. Affidavit/Affirmation of James Pettus sworn to November 19, 2008 with exhibits.
  1. Affirmation of Glenn C. King dated January 8, 2009;
  2. Reply of James Pettus sworn to January 14, 2009.

Motion No. M-75955

  1. Notice of petition dated November 7, 2008;
  2. Petition of James Pettus sworn to November 12, 2008;
  3. Affirmation of Glenn C. King dated January 8, 2009.