Pro se inmate's application to file a late claim alleging negligent supervision arising from injuries sustained in an inmate-on-inmate assault was denied as his allegation of negligence was premised on little more than the fact he was labeled a high-ranking member of the Latin Kings gang upon his admission into DOCCS' custody 14 years ago. Moreover DOCCS is immune from liability for its decision not to use metal detectors in the recreation yard during certain times.
|Claimant(s):||LEIN FIGUEROA, 03-A-0465|
|Claimant short name:||FIGUEROA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Lein Figueroa, Pro Se|
|Defendant's attorney:||Honorable Barbara D. Underwood, Attorney General
By: Thomas R. Monjeau, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 14, 2018|
|See also (multicaptioned case)|
Movant, proceeding pro se, seeks permission to file a late claim pursuant to Court of Claims Act § 10 (6).
Movant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), was allegedly assaulted by another inmate in the recreation yard of Great Meadow Correctional Facility on October 22, 2017 and seeks permission to file a claim alleging negligent supervision. In his proposed claim, movant alleges he was "cut in the left side of his face with a metal razor by another inmate" (movant's Exhibit A, ¶ 2) and that DOCCS "knew that the claimant was a 'substantial risk' because since his arrival into the DOCCS in 2003, claimant was labeled a high ranking member of the Latin Kings and they failed to protect said claimant" (id. at ¶ 4). Movant also alleges more generally that "[p]rison staff and central office were aware of a 'substantial risk' to the inmates [sic] safety but failed to take reasonable actions to protect him" (id.) and that DOCCS was negligent in failing to "mandate that all inmates proceed through a metal detector prior to going to the yard" (id. at ¶ 5).
The first issue for determination upon such a motion is whether the application is timely. Court of Claims Act §10 (6) requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." Personal injury actions alleging negligence against citizens of the State are governed by a three-year statute of limitations (CPLR 214 ). Movant's application for leave to serve and file a late claim alleging negligence is therefore timely, having been filed on April 30, 2018, well within the applicable Statute of Limitations.
Court of Claims Act §10 (6) permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and, whether the claimant has any other available remedy."
This Court has broad discretion in deciding a motion to permit the late filing of a claim (Langner v State of New York, 65 AD3d 780 [3d Dept 2009]; Matter of Magee v State of New York, 54 AD3d 1117, 1118 [3d Dept 2008]). The statutory factors are not exhaustive nor is any one factor controlling (Lange v State of New York, 133 AD3d 1250 [4th Dept 2015]; Matter of Gavigan v State of New York, 176 AD2d 1117 [3d Dept 1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Ortiz v State of New York, 78 AD3d 1314 [3d Dept 2010], affd sub nom Donald v State of New York, 17 NY3d 389 ; Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
Movant indicates he was unable to file a timely claim because he had no access to the prison law library due to the injuries he sustained in the assault, he was awaiting responses to grievances he filed in order to obtain supporting documentation, and his request for permission to view the video recording of the incident was denied. While movant alleges he sustained a five-inch laceration on the left side of his face for which treatment in an outside hospital was required, he fails to indicate the dates he was incapacitated and unable to attend the law library. Moreover, movant fails to explain what documents he hoped to get from the grievance process or why such documents were necessary to commence a timely action. Lastly, no reason is apparent for movant's decision to delay filing of the claim until his request to view the video recording was decided. Accordingly, movant has failed to provide a reasonable excuse for his delay in filing a claim.
The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Movant contends that the State had notice of the essential facts of the claim and an opportunity to investigate because: (1) he was treated for his injuries in the facility infirmary, (2) he was issued a misbehavior report in which the correction officer who wrote the report was purportedly an eyewitness to all or part of the incident, (3) an investigation was performed that resulted in a report from Sergeant D. Reynolds dated October 22, 2017, and (4) an Involuntary Protective Custody recommendation was made "[d]ue to the severity of the cutting and [movant's] reluctance to identify a perpetrator" (Involuntary Protective Custody Recommendation annexed as a part of movant's Exhibit A, submitted in reply). In opposition to the motion, defense counsel indicates the State will be prejudiced in its efforts to investigate and defend the claim due to the passage of time, fading of witnesses' memories, and the fact that movant failed to identify his perpetrator. Such conclusory assertions are insufficient to establish prejudice particularly where, as here, an investigation of the incident was performed and the individuals engaged in the altercation were identified (see documents submitted by movant in reply). Accordingly, the Court finds that movant's submissions establish the State had notice of the essential facts constituting the claim, an opportunity to investigate and that granting of the motion will not result in prejudice. These factors weigh in movant's favor.
With respect to the required showing of merit, the claim is sufficiently established if the movant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl, 1977]; Fowx v State of New York, 12 Misc 3d 1184 [A] [Ct Cl, 2006]).
As stated by the Court of Appeals in Sanchez v State of New York (99 NY2d 247, 247 ):
"Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as people at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates" (see also Flaherty v State of New York, 296 NY 342 ).
This duty does not require "unremitting surveillance in all circumstances," nor does it cast the State in the role of an insurer of inmate safety (Sanchez v State of New York, 99 NY2d at 256). Rather, the scope of the duty is limited to risks of harm that are reasonably foreseeable, which include not only what the defendant knew but what it should have known "for example, from its knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks" (Sanchez v State of New York, 99 NY2d at 254; Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). Liability may therefore arise from what the State knew or should have known regarding: (1) the risk of harm to a class of inmates based on the institutional expertise or experience (Sanchez, supra; Pitts v State of New York, 166 AD3d 1505 [4th Dept 2018]; Brown v City of New York, 95 AD3d 1051 [2d Dept 2012]; Vasquez v State of New York, 68 AD3d 1275 [3d Dept 2009]), (2) the dangerous propensities of the assailant (Adeleke v County of Suffolk, 156 AD3d 748 [2d Dept 2017]; Wassmann v County of Ulster, 144 AD3d 1470 [3d Dept 2016]; Blake v State of New York, 259 AD2d 878 [3d Dept 1999]; Littlejohn v State of New York, 218 AD2d 833 [3d Dept 1995]), or (3) the risk of an assault and the failure to prevent it despite an opportunity to do so (Huertas v State of New York, 84 AD2d 650 [3d Dept 1981]; Auger v State of New York, 263 AD2d 929 [3d Dept 1999]).
Movant appears to allege as a predicate for liability the first category of circumstances set forth above, based on his assertion that DOCCS knew he was at an increased risk of harm due to his being labeled a high-ranking member of the Latin Kings, and the fact that DOCCS did not require inmates to pass through a metal detector prior to going to the recreation yard during the day. In the Court's view, the allegations relating to movant's gang affiliation "are too general, conclusory and factually unsupported to establish a meritorious claim" (Matter of Sandlin v State of New York, 294 AD2d 723, 725 [3d Dept 2002]). As noted by the Hon. Renée Forgensi Minarik in Cronin v State of New York (59 Misc 3d 1203[A] [Ct Cl, Nov. 15, 2016] 2016 NY Slip Op 51909[U]), "the fact that gangs, which are not permitted in the correctional setting, nonetheless exist, does not give rise to notice of any specific dangerous situation" (id. at *2; see generally McAllister v City of New York, 159 AD3d 887 [2d Dept 2018]; Williams v State of New York, 125 AD3d 1472 [4th Dept 2015], lv denied 25 NY3d 907 ; Anderson v State of New York, 125 AD3d 1273 [4th Dept 2015]; Barnette v City of New York, 96 AD3d 700 [2d Dept 2012]; Di Donato, supra). Furthermore, the proposed claim states the claimant "was labeled a high ranking member of the Latin Kings" upon his receipt into DOCCS custody in 2003, 14 years prior to the alleged assault upon him in October 2017 (movant's Exhibit A, ¶ 4). There is no indication of any event during the entire 14 year period, much less in relative proximity to the assault, which would give rise to even an inference that the defendant had notice of any reasonably foreseeable harm to the claimant and failed to protect him. While the proposed claim may not be patently groundless or frivolous, movant failed to demonstrate that there is reasonable cause to believe a valid cause of action exists.
Nor does the allegation that DOCCS was negligent in failing to utilize a metal detector during the afternoon recreation period provide a meritorious basis for the claim. Absent a controlling statute, rule or regulation, decisions regarding the time when and place where metal detectors are to be utilized are discretionary determinations for which the State is immune from liability (Cronin v State of New York, supra; Brown v State of New York, UID No. 2012-015-536 [Ct Cl, Collins, J. Mar, 22, 2012]). Accordingly, movant failed to demonstrate there is reasonable cause to believe a valid cause of action exists.
As to the final factor to be considered, it does not appear that any alternative relief is available to afford redress for movant's injuries.
Giving due weight to movant's failure to demonstrate the potential merit of the claim, together with his failure to demonstrate a reasonable excuse for the delay, the Court finds that permission to file a late claim should be denied.
Accordingly, movant's application for late claim relief is denied.
December 14, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims