Opinion
# 2019-053-518 Claim No. NONE Motion No. M-93276
06-10-2019
MICHAEL IVERSON v. THE STATE OF NEW YORK
MICHAEL IVERSON, Pro Se HON. LETITIA JAMES New York State Attorney General BY: Timothy J. Flynn, Esq. Assistant Attorney General
Synopsis
Motion seeking permission to file a late claim is denied. Movant is attempting to file a constitutional tort claim over which the Court lacks jurisdiction and is attempting to file other claims that have not yet accrued and would otherwise lack merit.
Case information
| UID: | 2019-053-518 |
| Claimant(s): | MICHAEL IVERSON |
| Claimant short name: | IVERSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-93276 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | MICHAEL IVERSON, Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Timothy J. Flynn, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 10, 2019 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant Michael Iverson, an inmate proceeding pro se, moves pursuant to Court of Claims Act § 10 (6) for permission to late file a claim. Defendant opposes the motion.
The underlying proposed claim alleges that movant was wrongfully incarcerated pursuant to an unlawful parole warrant. Movant seeks monetary damages based on alleged violations of Executive Law § 259-i and the Fourteenth Amendment of the United States Constitution. FACTS
Movant Michael Iverson was sentenced in New York State for Kidnapping in the Second Degree and for Rape in the First Degree. Both sentences were to expire on January 16, 2015.
On February 21, 2013, movant signed a Certificate of Release to Parole Supervision (Defendant's Exhibit A to the affidavit of Dawn Anderson, Bureau Chief of the Niagara Frontier Bureau of the New York State Department of Corrections and Community Supervision [DOCCS]) and was released from prison on February 22, 2013 to the supervision of DOCCS. On March 8, 2013, movant's GPS monitoring unit was removed and found in a supermarket. When the efforts of DOCCS' personnel to locate movant were unsuccessful, parole warrant #665584 was issued on March 15, 2013 (Anderson Exhibit B).
On January 3, 2016, movant was taken into custody by the City of Schertz Police Department in Texas and held in the Guadalupe County Jail. On January 8, 2016, DOCCS was advised by the United States Marshals Service that federal charges were placed against movant for failing to register as a sex offender. Movant pled guilty to violating 18 USC § 2250(a) for failing to register (Defendant's Exhibit D). On October 14, 2016, movant was transferred to Beaumont Federal Prison with a release date of September 9, 2018.
On June 11, 2018, movant filed an Article 78 Petition in New York State Supreme Court under Index no. 3935-18 (A copy of movant's Petition, defendant's Answer and Acting Supreme Court Justice Denise Hartman's Order to Show Cause are annexed as defendant's Exhibit A). In his petition, movant argues that he was detained in Texas pursuant to an unlawful and void parole warrant, warrant # 665584. Among other relief, movant requests that warrant # 665584 be vacated. On September 7, 2018, movant was extradited from federal custody to the Chautauqua County Jail in Mayville, New York. That same day, movant was served with a Notice of Violation, advising him that he was being charged with a violation of the conditions of his parole release and was scheduled for a preliminary hearing on these charges on September 17, 2018 and, that, if he waived the preliminary hearing, a final hearing would be held on October 9, 2018. Movant refused to sign the Notice of Violation (Defendant's Exhibit E). The preliminary hearing was apparently conducted on September 17, 2018. After being adjourned twice at the request of movant's counsel, the final revocation hearing was scheduled for March 12, 2019. Movant is currently incarcerated. DECISION
Pursuant to Court of Claims Act §§ 10 (3), (3-b) and 11, a notice of intention to file a claim or a claim must be filed and served within ninety (90) days of accrual of the claim. A timely served notice of intention will extend the time within which to file and serve a claim to one year after accrual of an intentional tort or to two years after accrual of a negligent tort. The filing and service requirements of the Court of Claims Act are jurisdictional in nature, and the failure to timely file and serve a claim deprives the Court of jurisdiction, requiring dismissal of the claim (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762 [3d Dept 1991], affd 81 NY2d 721 [1992]).
In the event a claim is not timely filed and served, a movant may move pursuant to Court of Claims Act § 10 (6) for permission to late file a claim. A motion for permission to file and serve a late claim must be brought "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" (Court of Claims Act § 10 [6]). A negligence action against a private citizen would have to be commenced within three years of accrual of the claim (CPLR 214), while an action based on an intentional tort must be brought within one year of accrual (CPLR 215).
The Court of Claims is vested with broad discretion to grant or deny permission to late file a claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In determining whether to grant permission to late file a claim, the Court must consider, among other 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 [movant] has any other available remedy" (Court of Claims Act § 10 [6]).
The first factor to be considered by the Court is whether the delay in filing and serving a claim was excusable. Movant argues that the delay in filing a claim was excusable as he is not a lawyer and did not have access to counsel (see ¶ 2 of movant's motion for permission to file a late claim). Neither ignorance of the law nor incarceration constitute acceptable excuses (Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]). Movant further argues that any delay was excusable as the Chautauqua County Jail where he was transferred to after being released from federal custody did not have a law library or a person trained in the law to assist him in filing his claim (See movant's reply statement). Inmates, however, do not have an abstract or free-standing right to a law library or legal assistance (People v Cabrera, 259 AD2d 1007 [4th Dept 1999]). Moreover, it does not appear that his incarceration in the Chautauqua County Jail prevented him from filing a timely claim. Movant was transferred to the Chautauqua County Jail on September 7, 2018 and his affidavit in support of his present motion was notarized on December 10, 2018, the ninety-fourth day of his incarceration. Movant gives no explanation as to why he could not file and serve a claim within ninety (90) days of his incarceration in the Chautauqua County Jail, considering he was able to file this motion shortly thereafter. The lack of an excusable delay is, however, only one of the factors to be considered.
The next three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [Ct Cl, 1998]). Here, movant argues that the State had notice and an opportunity to investigate as he filed and served an Article 78 petition in the Matter of Michael Iverson v Acting Commissioner Anthony Annucci, New York State, Department of Corrections and Community Supervision, Index No. 3935-18 (Defendant's exhibit A). As the essential issue in movant's Article 78 proceeding, i.e., the validity of the parole warrant, is the same essential issue to be raised in a claim in this Court, the State had notice, an opportunity to investigate and, thus, there does not appear to be any prejudice to the State. These factors support movant's motion.
The most important factor to consider is merit as it would be futile to permit a claim to be filed which was subject to dismissal (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]. It is movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is a reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). Movant's various causes of action as alleged in the proposed claim will be addressed separately.
Constitutional Claims
On page 16 of movant's proposed claim, movant attempts to summarize the various causes of action he intends to allege if granted permission to file a late claim. Among those listed are: violation of due process; violation of access to courts; denial of equal protection; cruel and unusual punishment; and "deliberate indifference towards [movant's] civil rights . . . " The Court of Claims does not have jurisdiction to consider Federal Constitutional claims, including alleged civil rights violations which may be brought pursuant to 42 USC § 1983, albeit in another Court (Brown v State of New York, 89 NY2d 172 [1996]). To the extent that movant's proposed claim can be read as alleging a State constitutional claim, it too must fail. A State constitutional claim may only be pursued in the Court of Claims where no other remedy is available to enforce movant's rights (Martinez v City of Schenectady, 97 NY2d 78 [2001]). Here, movant may raise his constitutional claims in Federal Court and has alleged other potential causes of action in his proposed claim. Accordingly, movant has failed to establish even the appearance of merit to a constitutional claim in the Court of Claims.
False Arrest , Unlawful Imprisonment and Malicious Prosecution
A cause of action for unlawful or false arrest is virtually the same as a cause of action for false or wrongful imprisonment. False imprisonment is an unlawful detention contrary to the will of the person detained. False arrest is an unlawful detention accomplished by an unlawful arrest (Jacobs v The State of New York, UID No. 2018-044-571 [Ct Cl, Schaewe, J., Nov. 26, 2018]). Unfortunately, it is difficult to determine from the proposed claim whether movant is seeking to assert a claim against New York State for false arrest by the Schertz Police Department in the State of Texas on January 3, 2016 and imprisonment pursuant to his guilty plea in the United States District Court for the Western District of Texas for violation of USC § 2250 (a) or his September 7, 2018 arrest and detention by employees of DOCCS upon his extradition from federal custody and return to New York State.
If movant is referring to his arrest in Texas, then this Court does not have jurisdiction. While movant may have been picked up in Texas (at least initially) on the New York State parole warrant, he pleaded guilty to violating USC § 2250 (a) for failing to register as a sex offender and was incarcerated in a federal prison for this violation. The Court of Claims is a court of limited jurisdiction with the power to hear claims against the State of New York for the torts of the State's officers and employees (NY Const Art IV, Court of Claims Act § 9). This Court does not have jurisdiction over the actions of the Schertz, Texas Police Department or of federal officers or of federal judges (Whitmore v State of New York, 55 AD2d 745 [3d Dept 1976], lv denied 42 NY2d 810 [1977]; Yefimova v The State of New York, UID No. 2019-015-100 [Ct Cl, Collins, J., Jan. 2, 2019]).
At paragraph 2 of movant's motion for permission to file a late claim, he alleges that the incident underlying this claim occurred on September 7, 2018, which was the date when he was extradited from federal custody to the Chautauqua County Jail where he was served with the notice of violation which he refused to sign. It thus appears that movant is actually seeking to assert a claim for false arrest or false imprisonment arising out of his arrest in New York State beginning on September 7, 2018. Such causes of action, however, are not yet ripe. A cause of action for false arrest and false imprisonment accrue when movant is released from custody (Williams v City of New York, 153 AD3d 1301 [2d Dept 2017]; Roche v Village of Tarrytown, 309 AD2d 842 [2d Dept 2003]). In March of 2019 when movant filed his reply statement he was incarcerated and according to DOCCS' Inmate Information, movant is still incarcerated. Once movant is released from custody, he will then have ninety (90) days from the date of his release within which to file and serve a claim for false imprisonment and/or false arrest (see Court of Claims Act§§ 10 [3], 10 [3-b]). Thus, the motion to late file a claim for false arrest or false imprisonment is premature as these causes of action have not, as yet, accrued.
The elements of the tort of malicious prosecution are: "(1) the commencement or continuation of a criminal proceeding by the defendant against the [movant], (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice" (Broughton v State of New York, 37 NY2d 451, 457 [1975], cert. denied sub nom., Schanbarger v Kellogg, 423 US 929 [1975]). Movant has failed to allege all of the elements of a malicious prosecution cause of action in his proposed claim. More importantly, there has been no determination that movant's arrest and detainer on September 7, 2018 on the basis of the parole warrant was improper. In fact, movant is apparently still in custody and it appears that movant's Article 78 proceeding in State Supreme Court brought by movant to address the validity of the parole warrant is still ongoing. Further, a cause of action for malicious prosecution accrues when the underlying proceeding is terminated in movant's favor (Martinez v City of Schnectady, 97 NY2d 78, 84 [2001]. Here, if and when the parole warrant is declared to be void and the September 7, 2018 arrest is declared to be unlawful, movant will then have ninety (90) days within which to file and serve a claim for malicious prosecution. Thus, not only has movant failed to allege all of the essential elements of a cause of action for malicious prosecution, but his motion for leave to late file a claim for malicious prosecution is premature as such a cause of action has not, as yet, accrued.
Finally, it does not appear as if movant's proposed claims for false arrest, false imprisonment and malicious prosecution would have the appearance of merit even if they were ripe for determination. Movant's proposed causes of action for false arrest, false imprisonment and malicious prosecution all depend on the validity of the parole warrant. This is the very issue which is presently the subject of movant's Article 78 proceeding.
In the present motion, movant alleges that the parole warrant became invalid on or about January 3, 2016 when he was arrested and detained in Texas by the Schertz Police Department on the parole warrant and was not given a preliminary hearing on the warrant within fifteen (15) days of that arrest. Thus, according to movant, his subsequent arrest by DOCCS on September 7, 2018, when he was released from federal custody and extradited to New York, was unlawful as it was based on a parole warrant which should have become invalid in January of 2016.
Generally, an alleged parole violator is entitled to a revocation hearing within fifteen (15) days after the parole warrant has been executed (Executive Law § 259-i [3] [c] [i]). However, when an alleged parole violator who has absconded from parole supervision is detained in another state, the parole warrant will not be deemed to be executed until the parole violator is detained exclusively on the basis of the parole warrant and DOCCS has received notice of the alleged parole violator's extradition (Executive Law § 259-i [3] [a] [iii]). Thus, until the parole violator, the movant herein, completed his federal sentence for violating 18 USC § 2250 (a) and was extradited to New York, the fifteen (15) day period within which movant was entitled to a parole revocation hearing had not been triggered (see Matter of Pierre v Evans, 93 AD3d 990 [3d Dept 2012]). As movant was not being held in federal custody exclusively on the New York parole warrant, he was not entitled to a parole revocation hearing until September 7, 2018, at which time he had completed his federal sentence and was for the first time since the issuance of the parole warrant deemed to be within the convenience and practical control of DOCCS pursuant to Executive Law § 259-i (3) (a) (iii). The preliminary revocation hearing was apparently held on September 17, 2018, within the requisite fifteen day (15) day period (see p. 4 of the State's memorandum of law dated January 16, 2019 submitted in the Supreme Court Article 78 proceeding [Part of defendant's Exhibit A]).
Finally, while movant characterizes his claim as one for monetary damages, he is essentially seeking a review of DOCCS' actions when movant was arrested in Texas and its failure to hold a preliminary revocation hearing at that time. Such a determination would require this Court to declare that movant's arrest in Texas violated its own procedures. In addition, movant seeks a declaration that Executive Law § 259-i (3) (a) (iii) is unconstitutional (see ¶ 5 of movant's reply statement). Such declaratory relief is beyond the jurisdiction of this Court (see Davis v State of New York, 129 AD3d 1353 [3d Dept 2015]; Shelton v New York State Liq. Auth., 61 AD3d 1145 [3d Dept 2009]). These questions should be answered in the Article 78 proceeding which is currently pending. Thus, the most important factor, a meritorious cause of action, weighs against movant's motion.
The final factor to consider is whether movant has another remedy available. Movant has commenced an Article 78 Petition in State Supreme Court which is currently pending and has commenced at least one action in the United States District Court for the Southern District of Illinois. The final factor also weighs against the granting of movant's motion.
In summary, movant has failed to provide a reasonable excuse for any delay in filing a claim, is attempting to late file a constitutional tort claim over which this Court does not have jurisdiction, and is attempting to late file state claims which have not as yet accrued and which, if and when they accrue, appear not to be meritorious. Based on the foregoing and having considered the statutory factors listed in Court of Claims Act § 10 (6), movant's motion (M-93276) for late claim relief is denied.
June 10, 2019
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Motion for Permission to file a late claim, supporting affidavit of Michael Iverson sworn to December 3, 2018, with annexed Exhibits; 2. Opposing affidavit of Assistant Attorney General Timothy J. Flynn sworn to March 4, 2019, with annexed Exhibits A-E and supporting affidavit of Dawn Anderson sworn to March 4, 2019, with annexed Exhibits A-D; and 3. Unsworn reply statement of Michael Iverson dated March 7, 2019.