Opinion
# 2021-038-511 Motion No. M-96229
01-26-2021
DARREN KNIGHT v. THE STATE OF NEW YORK
DARREN KNIGHT, Pro se LETITIA JAMES, Attorney General of the State of New York By: Elizabeth A. Gavin, Assistant Attorney General
Synopsis
Motion for late claim relief denied. Although three of the six statutory factors weigh in favor of granting the motion, claimant failed to demonstrate a reasonable excuse for the delay in filing the claim, the appearance of merit, or the lack of another available remedy.
Case information
| UID: | 2021-038-511 |
| Claimant(s): | DARREN KNIGHT |
| Claimant short name: | KNIGHT |
| 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-96229 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | DARREN KNIGHT, Pro se |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Elizabeth A. Gavin, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 26, 2021 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual currently incarcerated in a State correctional facility, moves for permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6). The proposed claim alleges that defendant's employees at Green Haven Correctional Facility (CF) failed to protect him from an assault by another inmate on June 26, 2019. Claimant also seeks assignment of counsel. Defendant takes no position on the motion.
The proposed claim alleges that claimant was "attacked, without provocation" by another inmate in the mess hall at Green Haven CF on the morning of June 26, 2019 (Proposed Claim, ¶ 9). The proposed claim alleges that Correction Officers (COs) Boyd and Kwarlter "yelled at [claimant and his assailant] to stop fighting" but did not "interven[e] to break up the fight," and that CO Kwarlter "used pepper spray on [claimant]" while he was "continu[ing] to defend himself" (id. at ¶ 10). The proposed claim further alleges that claimant complied with commands to stop fighting and positioned himself face down on a mess hall table, that CO Boyd then handcuffed claimant, and that CO Kwarlter "pepper sprayed into [claimant's] eyes a second time for no reason" (id. at ¶¶ 11-12). The proposed claim alleges that COs Boyd and Kwarlter then escorted claimant out of the mess hall (see id. at ¶ 13). The proposed claim alleges that the incident was witnessed by several fellow inmates (see id. at ¶ 14, Exhibit A [Affidavit of Ronald Fredericks, sworn to Aug. 28, 2019; Affidavit of Morris Grady, sworn to Aug. 6, 2019]).
The proposed claim further alleges that following the incident, claimant was escorted to the facility medical clinic, where COs instructed him to wash off the pepper spray and photographs were taken of his face and torso, and a nurse cleaned and applied ointment to a gash on his forehead (see id. at ¶ 15, Exhibit F [Photographs, dated June 26, 2019]). The proposed claim alleges that when asked by Sergeant W. Howard why he was fighting, claimant stated that his assailant " 'just jumped up and knocked him off his seat and started choking and punching him,' " and that claimant merely defended himself (id. at ¶ 16). The proposed claim alleges that claimant reported no injuries to the nurse who filled out an injury report (see id. at ¶ 17, Exhibit B [Inmate Injury Report, dated June 26, 2019]). The proposed claim alleges that claimant was then relocated to a different cell block, and that after being brought to his new cell, he began experiencing swelling and pain in his right temple and the left side of his rib cage (see id. at ¶¶ 18-19). The proposed claim alleges that claimant was served with an inmate misbehavior report as a result of the incident and received thirty days in keeplock confinement and 90 days loss of privileges, and that he subsequently filed a grievance, which was initially denied but is currently "being looked into further" (id. at ¶¶ 20-21; see id., Exhibit C [IMR, dated June 26, 2019; Disciplinary Hearing Disposition Rendered, dated June 28, 2019], Exhibit D [Grievance Number 92129-19, dated Sept. 20, 2019]).
The proposed claim alleges two causes of action. The first cause of action alleges that claimant's New York constitutional rights and his rights under the Eighth Amendment of the United States Constitution were violated when defendant's agents failed to protect claimant by not following "statutes and [Department of Corrections and Community Supervision] Directives relating to Mental Health inmate's [sic] movement from facility to facility" that required claimant's alleged assailant to be placed in the Mental Health Satellite Unit before the assault (id., ¶25). The second cause of action alleges that defendant's agents failed to protect claimant from the reasonablely foreseeable risk of attack because the alleged assailant was known to have "violent tendencies and mental health issues" (id., ¶ 31). The proposed claim seeks $30,000 in damages as compensation.
In deciding a motion for late claim relief, the Court is required to consider 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"
(Court of Claims Act § 10 [6]). The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]), and the weight accorded the various factors is a matter within the discretion of the Court. Although "[t]he movant need not satisfy every statutory element[,] . . . the burden rests with the movant to persuade the court to grant his or her late claim motion" (Frederick v State of New York, 23 Misc 3d 1008, 1011 [Ct Cl 2009]).
In support of his late claim motion, claimant argues that the delay in filing the claim was excusable because he is "not a lawyer and . . . had no access to professional legal counsel or to the prison law library during . . . the COVID-19 virus pandemic" (Knight Affidavit, ¶ 2). As noted above, defendant has not responded to the motion. Nevertheless, it is well settled that "neither claimant's professed ignorance of the law nor his confinement in a correctional facility provide[] an acceptable excuse" for failing to timely file a claim in the Court of Claims (Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; see Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Matter of Powell v State of New York, 187 AD2d 848, 849 [3d Dept 1992]), and, likewise, that a "[c]laimant's asserted inability to secure an attorney is no basis for delay in filing" (Simpson v State of New York, 96 AD2d 646, 646 [3d Dept 1983]). Accordingly, this factor weighs against granting claimant's application for late claim relief.
The next three factors - whether the State had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim, and whether claimant's failure to file or serve upon the attorney general a timely claim or notice of intention resulted in substantial prejudice to the State - are closely related, and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). In support of his late claim motion, claimant argues that "[t]he State had notice of the essential facts [constituting] the claim in that staff and the administration personnal [sic] in the prison were made aware of [his] situation the facts of [his] claim" (Knight Affidavit, ¶ 3), but he does not address whether the State had an opportunity to investigate the claim or whether his failure to timely file this claim substantially prejudiced the State. However, defendant has taken no position on the motion, and thus has not addressed these three factors. Thus, these three factors weigh in favor of granting the late claim application.
Turning next to the appearance of merit of the proposed claim, this factor is often decisive because, although Court of Claims Act § 10 (6) reflects a legislative determination that "litigants with meritorious claims [should] be afforded their day in court" (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]; see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]), the courts have recognized that a late claim application should not be granted where a claim is "legally deficient . . . [and] would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request" (Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he or she will prevail on the claim. Rather, a proposed claim has the appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not "patently groundless, frivolous, or legally defective," and (2) all of the evidence submitted on the motion establishes "reasonable cause to believe that a valid cause of action exists" (Matter of Santana, 92 Misc 2d at 11).
As noted above, the claim seeks recovery under two theories of liability. First, the claim alleges that claimant's federal and State constitutional rights were violated when defendant's agents failed to protect claimant by placing claimant's assailant in a Mental Health Satellite Unit prior to the attack. Second, the claim alleges that defendant's agents were negligent in failing to protect claimant from the foreseeable risk of attack inasmuch as claimant's assailant was prone to violence and who had mental health issues. Notwithstanding that claimant has failed to address the crucial factor of the appearance of merit of the proposed claim in his affidavit in support of this late claim application, and has thus failed to meet his burden of persuasion as to this factor, the Court will separately analyze and address each of these causes of action.
Turning to the first cause of action, to the extent that claimant seeks to recover for a violation of his rights under the Eighth Amendment of the United States Constitution to be free from cruel and unusual punishment (see Proposed Claim, ¶¶ 23, 25), "the Court of Claims has no jurisdiction over claims alleging violations of the US Constitution" (Carver v State of New York, 79 AD3d 1393, 1395 [3d Dept 2010], lv denied 17 NY3d 707 [2011]). In the event claimant seeks to recover for a violation of his state constitutional right to be free from cruel and unusual punishment (see NY Const, art I, § 5), due to "deliberate indifference" of prison officials (see Proposed Claim, ¶ 23 ["negligence of action may also be analyzed as . . . deliberate indifference']; see generally Estelle v Gamble, 429 US 97, 104 [1976]; Helling v McKinney, 509 US 25, 35 [1993]), the Court of Appeals has held generally that the jurisdiction of the Court of Claims "is not limited to common-law tort causes of action and that damage claims against the State based upon violations of the State Constitution come within the jurisdiction of the Court of Claims" (Brown v State of New York, 89 NY2d 172, 183 [1996]). The Court of Appeals later clarified that "the tort remedy is not boundless," and "[c]laimants must establish grounds that entitle them to a damages remedy, in addition to proving that their constitutional rights have been violated" (Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]). This Court finds no appellate authority recognizing a state constitutional tort sounding in cruel and unusual punishment. However, several decisions of the Court of Claims have discussed the potential viability of such a cause of action, without expressly concluding that it is maintainable (see e.g. Boggs v State of New York, 51 Misc 3d 376 [Ct Cl 2015]; Zulu v State of New York, 2001 NY Slip Op 40047[U] [Ct Cl 2001]; De La Rosa v State of New York, 173 Misc 2d 1007 [Ct Cl 1997]).
Assuming without deciding that such a cause of action may be brought, and further assuming that the evaluation of such a cause of action would mirror the analysis employed upon alleged violations of the parallel federal right to be free of cruel and unusual punishment, the proposed claim fails as a matter of law. It is by now well established that the state constitutional tort is a narrow remedy that may be pursued only when no other remedy is available to enforce the claimed constitutional right (see Martinez, 97 NY2d at 83-84; Brown, 89 NY2d at 189; Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 678-679 [3d Dept 2003]). Inasmuch as a private right of action exists for violations of the parallel federal constitutional right pursuant to 42 USC § 1983 (see e.g. Helling, 509 US at 35; Scott v Smith, 104 AD3d 1029 [3d Dept 2013], lv denied 21 NY3d 860 [2013]), a state constitutional tort is not necessary to redress the alleged constitutional violation (see Thomas v State of New York, 10 Misc 3d 1072 [A], 2005 NY Slip Op 52230[U], *3 [Ct Cl 2005]; but see Boggs, 51 Misc 3d at 382).
Turning next to the second cause of action, "[h]aving assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates" (Sanchez v State of New York, 99 NY2d 247, 252-253 [2002]; see Vasquez v State of New York, 68 AD3d 1275, 1276 [3d Dept 2009]). However, "negligence may not be inferred merely because an incident occurred" (Sanchez v State of New York, 36 AD3d 1065, 1066 [3d Dept 2007], lv denied 8 NY3d 815 [2007]; see Vasquez, 68 AD3d at 1275-1276). Rather, in negligence claims against the State for inmate-on-inmate attacks, the scope of the State's duty of care is to provide "reasonable protection against foreseeable risks of attack by other prisoners" (Sebastiano v State of New York, 112 AD2d 562, 564 [3d Dept 1985] [emphasis added]; see Sanchez, 99 NY2d at 253; Dizak v State of New York, 124 AD2d 329, 330 [3d Dept 1986]).
Foreseeability in such cases includes not only what the State actually knew about the risk of an attack on the claimant, but also what it "reasonably 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, 99 NY2d at 254 [emphasis in original]; Vasquez v State of New York, 68 AD3d 1275, 1276 [3d Dept 2009]). An inmate-on-inmate assault may be foreseeable where defendant knew or reasonably should have known that the claimant's attacker was violent or prone to assaultive behavior (see e.g. Littlejohn v State of New York, 218 AD2d 833, 834-835 [3d Dept 1995]; Colon v State of New York, 209 AD2d 842, 844 [3d Dept 1994]), where the claimant had previous encounters with his assailant or had known enemies (see Vasquez, 68 AD3d at 1276; Elnandes v State of New York, 11 AD3d 828, 829 [3d Dept 2004]), or where the area in which the attack took place was "known to be susceptible to inmate-on-inmate attack" (Evans v State of New York, 11 Misc 3d 1065[A], 2006 NY Slip Op 50391[U], *6 [Ct Cl 2006]).
Here, although the proposed claim alleges that the inmate-on-inmate attack was reasonably foreseeable because defendant's employees knew or should have known that the alleged assailant was prone to violent behavior and had mental health issues, he has submitted no evidence on this motion establishing reasonable cause to believe that such a cause of action exists. Although the proposed claim alleges that the alleged assailant "was known to have violent tendencies and mental health issues" (Proposed Claim, ¶ 31), those allegations are conclusory and, in any event, lack evidentiary value inasmuch as the proposed claim is unsworn. Moreover, none of the documents submitted with the proposed claim tend to establish that prison officials knew or reasonably should have known that claimant's alleged assailant had violent propensities or other tendencies that would have made an attack reasonably foreseeable.
Accordingly, for the aforementioned reasons, the factor of the appearance of merit weighs decisively against granting the late claim application.
Finally, claimant asserts that he has no other available State remedy (see Knight Affidavit, ¶ 4), which defendant does not dispute. However, given that claimant is able to identify his alleged assailant (see Proposed Claim, ¶ 9), and the one-year statute of limitations for assault and battery has not yet expired (see CPLR § 215 [3]), it appears that claimant does have an alternative remedy available to him, and this factor thus weighs against granting the late claim motion.
The proposed claim alleges that the inmate-on-inmate assault occurred on June 26, 2019, and thus the statute of limitations for assault and battery should have expired on June 26, 2020. However, on March 20, 2020, in response to the Coronavirus pandemic, the Governor issued Executive Order No. 202.8, which, among other things, directed that "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to [certain state laws], any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020" (Executive Order No. 202.8, dated Mar. 20, 2020 [9 NYCRR 8.202.8]). That directive was extended through successive Executive Orders, including Executive Order No. 202.67, which extended the directive for a final time through November 3, 2020, and stated that the toll would not be further extended (see Executive Order No. 202.67, dated Oct. 4, 2020 [9 NYCRR 8.202.67]; see also Executive Order No. 202.72, dated Nov. 3, 2020 [9 NYCRR 8.202.72] [toll on time limits for service of any motion prescribed by the CPLR no longer in effect as of November 4, 2020]). Accordingly, claimant's time to commence an action for assault and battery against his alleged assailant was tolled on March 20, 2020, at which time claimant had 98 days remaining to commence such an action. The statute of limitations began running again on November 4, 2020, and claimant's time to file and serve an action for assault and battery will not expire until 98 days after November 4, 2020, or February 10, 2021. --------
Having considered and weighed all of the factors set forth in Court of Claims Act § 10 (6), the Court finds that three of the six statutory factors, including the crucial factor of appearance of merit, weigh against granting the motion for late claim relief. Thus, the motion to serve and file this proposed late claim will denied. As a result, claimant's application for the assignment of counsel will be denied as moot.
Accordingly, it is
ORDERED, that claimant's motion number M-96229 is DENIED.
January 26, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Notice of Motion for Permission to File a Late Claim, dated October 30, 2020; 2. Affidavit of Darren Knight In Support of Motion For Permission To File Late Claim, sworn to October 30, 2020, with Exhibits A-F; 3. Notice of Motion - Assigned Counsel, dated October 30, 2020; 4. Proposed Verified Claim, dated October 30, 2020.