Opinion
# 2021-038-521 Motion No. M-96454
04-19-2021
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 granted in part. Allegations that claimant was subjected to excessive force had the appearance of merit. Request for poor person relief and assignment of counsel denied without prejudice to move for such relief after filing and service of proposed claim.
Case information
| UID: | 2021-038-521 |
| 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-96454 |
| 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: | April 19, 2021 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual formerly 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 and that he was subjected to excessive force by Corrections Officers (COs) following the assault. Claimant also seeks poor person relief and assignment of counsel. Defendant is opposed to the motion.
The proposed unverified 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 Unverified Claim, ¶ 9). The proposed claim alleges that COs Boyd and Twarlter "yelled to [claimant and his assailant] to stop fighting" but "failed to intervene" in the fight, and that CO Twarlter "used pepper spray on claimant" while claimant "continued to defend himself" (id. at ¶ 10). The proposed claim further alleges that claimant complied with commands to stop fighting and position himself face down on a mess hall table, that CO Boyd then handcuffed claimant, and that CO Twarlter "shot pepper spray into [claimant's] eyes a second time for no penalogical [sic] reason or purpose" (id. at ¶¶ 11-12). The proposed claim alleges that as COs Boyd and Twarlter escorted claimant out of the mess hall, CO Boyd "rammed claimant's shoulder on the right side, and forehead, into the concrete wall and started punching claimant in the left side back of the head, while [CO] Twarlter hit claimant in the ribbs [sic] on the left side of the body with his nightstick" (id. at ¶ 13).
Although the proposed claim refers to this CO as "Twarlter" (see Proposed Claim, ¶¶ 10, 12-13), Department of Corrections and Community Service (DOCCS) documents submitted with the proposed claim refer to this CO as "Kwartler" (see id., Exhibit E).
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, 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). The proposed claim alleges that when Sergeant W. Howard inquired why he was fighting, claimant stated that his assailant " 'just jumped up and started punching [him] and choking [him] and knocked [him] off [his] seat,' " and that claimant merely defended himself (id. at ¶ 15). The proposed claim alleges that claimant reported no injuries to the nurse who filled out an Inmate Injury Report (see id. at ¶ 16, Exhibit A). 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 his rib cage (see id. at ¶¶ 17-18). The proposed claim alleges that claimant was served with an inmate misbehavior report as a result of the incident (id. at ¶ 19).
The proposed claim alleges two causes of action. The first cause of action alleges that the claimant was subjected to an "assault and battery (excessive force) . . . [that] may also be analyzed by Cruel and Unusual Punishment Treatment under the Eight [sic] Amendment of the [United States] Constitution and the New York State Constitution" (id. at ¶ 24). The second cause of action alleges that defendant's agents failed to protect claimant from the reasonably foreseeable risk of attack because the alleged assailant "was known to have violent tendencies and mental health issues" (id. at ¶ 33). The proposed claim seeks $200,000 in damages as compensation.
Attached to the proposed claim is an affidavit of Morris Grady, another inmate at Green Haven CF, who avers that he witnessed the fight between claimant and his assailant, that he saw COs pepper spray claimant in his face, and that he saw a CO "sw[i]ng [claimant] into the wall" as he was being escorted out of the mess hall (id., Exhibit B [Grady Affidavit]). Also attached to the claim is an affidavit of Ronald Fredricks, another Green Haven CF inmate, who avers that he witnessed claimant's alleged assailant attack claimant, and that CO Twartler pepper sprayed claimant in his face after he was handcuffed by CO Boyd (see id. [Fredricks Affidavit]).
The Fredricks affidavit similarly refers to this CO as "Twartler" (see Proposed Unverified Claim, Exhibit B [Fredricks Affidavit]), while that CO is referred to as "Kwartler" in DOCCS documents appended to the claim (see id., Exhibit E [Howard Memorandum, dated June 26, 2019], [Use of Force Report, dated July 29, 2019], [Unusual Incident Report, dated July 19, 2019]).
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]).
As an initial matter, in a decision and order dated January 26, 2021, the Court previously denied claimant's motion for permission to file a late claim that was nearly identical to the proposed claim now before the Court (see Knight v State of New York, UID No. 2021-038-511 [Ct Cl, DeBow, J., Jan. 26, 2021]). The proposed claim in this motion, however, differs from the proposed claim in that previous motion insofar as the first cause of action in this proposed claim alleges that COs at Green Haven CF subjected claimant to excessive force, whereas the first cause of action in the previous proposed claim alleged that the COs violated claimant's constitutional rights (see id.).
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). Defendant argues that "access to legal material and incarceration are not sufficient excuses for failure to timely file and serve a claim" (Gavin Affirmation, ¶ 6). Furthermore, defendant asserts that the claim accrued on June 26, 2019, and that the 90-day deadline to timely file and serve the claim "expired long before the start of the COVID-19 pandemic" (id.).
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]). Moreover, defendant is correct that the onset of the COVID-19 pandemic occurred after the 90-day deadline for timely filing and service, and cannot serve as an excuse. 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 failed to addressed these three factors, which thus 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]; see 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 was subjected to an assault and battery through excessive force. 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 had mental health issues.
A motion seeking late claim relief must be filed "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the [CPLR]" (Court of Claims Act § 10 [6]). The failure to file a motion for late claim relief within the prescribed time period is a jurisdictional defect which precludes the Court from granting the motion (see Berger v State of New York, 171 AD2d 713, 716 [2d Dept 1991]). The proposed claim alleges that the assault and battery occurred on June 26, 2019, and thus the statute of limitations for assault and battery should have expired on June 26, 2020 (see CPLR 215 [3]). 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 the COs 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 did not expire until 98 days after November 4, 2020, or February 10, 2021. This motion was filed on December 14, 2020, before the February 10, 2021 deadline to file and serve a timely late claim motion, and thus claimant's motion cannot be denied as jurisdictionally defective.
Turning to the first cause of action, "[t]o recover damages for battery, a [claimant] must prove that there was bodily contact, that the contact was offensive, and that the defendant intended to make the contact without the [claimant's] consent" (Bastein v Sotto, 299 AD2d 432, 433 [2d Dept 2002]). The use of physical force against an inmate in the custody of the DOCCS is permissible when an inmate is violent to another, attempts to injure another person, or resists or disobeys a lawful direction of a DOCCS employee (see Correction Law § 137 [5]). DOCCS regulations provide that physical force may not be used unless the employee believes that the use of physical force is "reasonably necessary" for self-defense, to prevent personal or property injury, to enforce compliance with a lawful directive, or to quell a disturbance (see 7 NYCRR 251-1.2 [d]). Such a use of force is limited to "only such degree of force as is reasonably required" (7 NYCRR 251-1.2 [b]; see generally Bush v State of New York, 57 AD3d 1066 [3d Dept 2008]). When a State employee uses force that is excessive - i.e., not reasonably necessary, or of greater degree than is reasonably necessary - the State may be held liable under the doctrine of respondeat superior (see Jones v State of New York, 33 NY2d 275, 279-280 [1973]; Stein v State of New York, 53 AD2d 988, 988 [3d Dept 1976]; see Vogler v State of New York, 2002 NY Slip Op 50604[U], *7 [Ct Cl 2002] ["The use of excessive force by a correction officer performing his lawful duties constitutes a battery and renders (d)efendant liable under the doctrine of respondeat superior"]). On the other hand, where there is "no reasonable connection between [a correction officer's] actions and duties customarily performed by correction officers" the State cannot be held liable for the battery (Rivera v State of New York, 59 Misc 3d 1233[A], 2017 NY Slip Op 52002[U], *6 [Ct Cl 2017], affd 162 AD3d 1571 [4th Dept 2018], lv granted 32 NY3d 902 [2018]).
In opposition, defendant argues that the first cause of action alleges that the COs committed an assault and battery against claimant that fell outside of the scope of their employment, for which defendant cannot be held responsible under the doctrine of respondeat superior (see Gavin Affirmation, ¶ 8). However, the proposed claim and the affidavits submitted in support can fairly be read as alleging that the COs' use of force occurred in connection with the quelling of a disturbance and that the force used was excessive, or not reasonably necessary based upon the circumstances presented. Therefore, the first cause of action, to the extent that it asserts a cause of action sounding in excessive force, is not patently groundless, and the evidence submitted on the motion - specifically the affidavits of Grady and Fredricks - establishes "reasonable cause to believe that a valid cause of action exists" (Matter of Santana, 92 Misc 2d at 11). Accordingly, the appearance of merit factor weighs in favor of granting the late claim application with regard to the excessive force allegations.
However, to the extent that the first cause of action seeks to recover for a violation of claimant's right under the Eighth Amendment of the United States Constitution to be free from cruel and unusual punishment (see Proposed Unverified Claim, ¶ 24), as noted in the Court's January 26, 2021 decision and order, "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]). Moreover, in the event that the first cause of action seeks to recover for a violation of claimant's state constitutional right to be free from cruel and unusual punishment (see Proposed Unverified Claim, ¶ 24; NY Const, art I, § 5), the claim fails to state a cause of action for the reasons stated in the Court's January 26, 2021 decision and order denying claimant's state constitutional tort claim (see Knight v State of New York, UID No. 2021-038-511 [Ct Cl, DeBow, J., Jan. 26, 2021]). Therefore, the appearance of merit factor weighs against granting the late claim application as it pertains to the alleged constitutional violations.
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 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, as with claimant's previous late claim motion, 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, claimant 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 Unverified Claim, ¶ 33), those allegations are conclusory and, in any event, lack evidentiary value inasmuch as the proposed "verified 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, the appearance of merit factor weighs against granting the late claim application with regard to the failure to protect cause of action.
Finally, claimant asserts that he has no other available State remedy (see Knight Affidavit, ¶ 4), which defendant does not specifically address, although defendant does note in its discussion of the merits of the state constitutional tort cause of action that claimant may bring a federal action under 42 USC § 1983 (see Gavin Affirmation, ¶ 11). However, as discussed in the Court's January 26, 2021 decision and order denying claimant's late claim motion, given that claimant is able to identify his alleged assailant (see Proposed Unverified Claim, ¶ 9), and the one-year statute of limitations for assault and battery had not yet expired when he filed this motion (see n 3, supra; CPLR 215 [3]), it appears that claimant did have an alternative remedy available to him, and this factor thus weighs against granting the late claim motion.
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 for the constitutional tort allegations in the first cause of action and for the failure to protect allegations in the second cause of action. Thus, the motion to serve and file this proposed late claim will denied with regard to those allegations. However, the Court finds that four of the six statutory factors, including the crucial factor of appearance of merit, weigh in favor of granting the motion for late claim relief for the excessive force allegations in the first cause of action. Thus, claimant will be permitted to file a late claim that alleges only that claimant was subjected to excessive force by COs at Green Haven CF on June 26, 2019, as stated in the proposed claim.
Lastly, claimant's request for poor person relief pursuant to CPLR 1101 (f) and for assignment of counsel will be denied without prejudice to a motion for such relief brought after the filing and service of the proposed late claim, as provided for in this decision and order.
Accordingly, it is
ORDERED, that claimant's motion number M-96454 is granted in part, to the extent that claimant may file and serve a claim alleging only that claimant was subjected to excessive force by COs at Green Haven CF on June 26, 2019, as stated in the proposed claim; and it is further,
ORDERED, that claimant shall file and serve the proposed claim that accompanies motion number M-96454, as limited by the preceding decretal paragraph, and such filing and service shall be accomplished within thirty (30) days of the filing date of this Decision and Order and in a manner required by the Court of Claims Act; and it is further
ORDERED, that claimant's motion number M-96454 is DENIED in all other respects.
April 19, 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 November 12, 2020; 2. Affidavit of Darren Knight in Support of Motion For Permission to File Late Claim, sworn to November 12, 2020; 3. Affidavit of Darren Knight in Support of Application Purusant to CPLR 1101 (f), sworn to November 12, 2020; 4. Proposed Unverified Claim, unsworn and dated November 12, 2020, with Exhibits A-F; 5. Affirmation of Elizabeth A. Gavin, AAG, in Opposition, dated March 5, 2021, with Exhibits A-B; 6. Decision and Order, Knight v State of New York, UID No. 2021-038-511 (Ct Cl, DeBow, J., January 26, 2021).