Opinion
# 2011-049-003 Claim No. 119442 Motion # 2011-049-003 Claim No. M-79791 # 2011-049-003 Claim No. M-80008
08-15-2011
RAMON LOPEZ (04-A-6086) v. THE STATE OF NEW YORK
Synopsis Case information
UID: 2011-049-003 Claimant(s): RAMON LOPEZ (04-A-6086) Claimant short name: LOPEZ Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) The caption has been amended sua sponte to reflect : the proper defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 119442 Motion number(s): M-79791, M-80008 Cross-motion number(s): Judge: DAVID A. WEINSTEIN Claimant's attorney: Ramon Lopez, Pro Se Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Bonnie Gail Levy, Assistant Attorney General Third-party defendant's attorney: Signature date: August 15, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant State of New York moves to dismiss this claim pursuant to CPLR § 3211(a)(2), (5), (7) and (8) and Court of Claims Act §§ 8, 9, 10 and 11.
Defendant was served with a second copy of the claim on May 12. It has construed that service as a new claim, and filed a second motion to dismiss (M-80008), on the same grounds as the present motion. No new claim was ever filed with the Court, however. Since the only pending claim is dismissed on defendant's initial motion, M-79791, pursuant to the decision herein, motion M-80008 is denied as moot.
Claimant served a notice of intention to file a claim on December 7, 2010. The notice of intention alleged the following facts: On July 21, 2010, he was placed in the Special Housing Unit (SHU) at Auburn Correctional Facility, and from there was moved to Southport Correctional Facility (Southport), where he remained in the SHU. While at Southport, claimant "suffered a lot of mental distress" when, on October 5, an inmate threw a substance at him that appeared to be urine, and then on October 10, an inmate threw feces on his face and body. Claimant contends that he was in the SHU "in violations of due proces[s]" for 93 days, until the decision placing him there was reversed. He asserts that he suffered the following injuries: "mental distress[,] pain and suffering and wrong[ful] place[ment] in [SHU] in violation of claimant['s] due process and Constitutional [r]ights . . . . "
On January 31, 2011, claimant filed the instant claim, and served it on the defendant on March 16, 2011. The claim recites, with limited additional detail, the allegations in the notice of intention. In particular, it identifies the inmates who allegedly threw the urine and feces at claimant. It also purports to elucidate the nature of claimant's allegations against the State, as follows: "If claimant [had not] been in wrongful confinement for those [93] days in violation of his due process and Constitutional [r]ights, claimant won't [sic] have experience[d] such traumatic mental distress pain and suffering." Claim ¶ 2. The claim provides no additional information as to the nature of the constitutional violations at issue.
On its motion, defendant argues that the claimant's notice of intention was insufficient to apprise it of the nature of the claim. In the absence of a legally valid notice, defendant maintains, the subsequently filed claim was untimely. For reasons set forth below, defendant's motion is granted.
Under Court of Claims Act §§ 10(3) and 10(3-b), a claimant may file a claim alleging an intentional tort by a State officer or employee within one year of the alleged wrongdoing, and a claim alleging a negligent or unintentional tort within two years, provided that a valid notice of intention is filed within ninety days after the claim accrues. If the underlying notice of intention is invalid, however, the claim is timely only if served within ninety days (see Cendales v State of New York, 2 AD3d 1165 [3d Dept 2003]). Where the timeliness of an action depends on a valid notice of intention having been filed, a claimant's failure to "sufficiently particularize" such notice is a nonwaivable, jurisdictional defect, warranting the action's dismissal (Cendales, 2 AD3d at 1168; see also Czynski v State of New York, 53 AD3d 881 [3d Dept 2008] [claim correctly dismissed as untimely when notice of intention filed within 90 days deemed insufficient]; Langner v State of New York, 65 AD3d 780 [3d Dept 2009] [same]).
The threshold question presented by defendant's motion is whether the claim was, in fact, filed beyond the 90-day period. To the extent the claim may be construed as alleging that the State was negligent in permitting the attacks on claimant, it arose on the date of those attacks, the last of which was October 10, 2010. To the extent the claim may be construed as sounding in wrongful confinement, it arose on the date on which the confinement terminated (Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 [2005]; Jackson v Police Dept. of City of N.Y., 119 AD2d 551, 552 [2d Dept 1986]). The precise date that claimant asserts that this occurred is unclear. He states that his placement in the SHU was overturned on October 5, 2010. He also says, however, that he began his confinement on July 21, 2010, and that it ended 93 days later. Under the latter allegation, the termination would have ended on October 22. Even under this date, however, the claim was both filed and served more than ninety days after it arose. Therefore, it is timely only if the notice of intention was proper.
A notice of intention must set forth the same information as a claim, except that "the items of damage or injuries and the sum claimed need not be stated" (Court of Claims Act § 11[b]). Specifically, the notice of intention must state "the time when and place where such claim arose, [and] the nature of same." (Id.) The requirements for a notice of intention are generally not as stringent as those imposed on a claim (Epps v State of New York, 199 AD2d 914, 914 [3d Dept 1993]). In particular, the notice need not state all of the elements of a cause of action, so long as it is of "sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances" (Grumet v State of New York, 256 AD2d 441 [2d Dept 1998] citing Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). If the basis for the State's misconduct can be "reasonably inferred," from the notice, then it meets the requirements of section 11(b) (Ferrugia v State of New York, 237 AD2d 858, 859 [3d Dept 1997]). If, on the other hand, the notice does not indicate how claimant was injured and "how [defendant] was negligent" (or engaged in intentional misconduct), it does not comply with the statute (Cendales, 2 AD3d at 1167).
Claimant's notice alleges, in regard to his confinement, only that the State violated his "due process" rights. But that is wholly insufficient to give the State notice of the wrongdoing it is alleged to have committed. The State has absolute immunity from claims arising out of the commencement and conduct of formal inmate disciplinary proceedings, provided they are carried out in compliance with governing statutes and regulations (Arteaga v State of New York, 72 NY2d 212, 214 [1988]). That is true even if - as claimant alleges here - the disciplinary sanction is later overturned (Id. at 215; Holloway v State of New York, 285 AD2d 765, 766 [3d Dept 2001]). Thus, to state a claim for wrongful confinement in regard to placement in a SHU, the claimant must allege conduct that violated some regulatory or statutory provision (see Holloway v State of New York, 285 AD2d 765 [3d Dept 2001] [State "cannot be held liable in damages" based on imprisonment in a SHU, as "there is no proof that the Hearing Officer violated any rules or regulations in conducting the hearing"]; cf. Arteaga, 72 NY2d at 220 [immunity does not protect actions of prison employees taken beyond their authority, or in violation of "the governing rules and regulations"]).
Claimant's allegation of due process violations are also not actionable as a constitutional tort, since there are alternative remedies - via an Article 78 proceeding or wrongful confinement claim - available to challenge such confinement (see Pettus v State of New York, UID # 2008-015-024, Claim No. 113867, Motion No. M-74272, Collins, J. [March 24, 2008] [no constitutional tort for alleged due process violations in disciplinary hearing]; Marino v State of New York, UID # 2005-030-526, Claim No. None, Motion No. M-69705, Scuccimara, J. [May 3, 2005] [no constitutional tort arising out of disciplinary confinement]; Dirose v State of New York, UID # 2001-019-510, Claim No. None, Motion No. M-62717, Lebous, J. [March 7, 2001] [same]. See generally Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006] ["a private right of action for a violation of the NY Constitution is unavailable where an alternative remedy, such as, among other things, a common-law action for damages, exists"]).
Here, the notice of intention gives the State no information whatsoever as to any legal violation in the conduct of claimant's hearing. Claimant's statement in the notice that the defendant violated "due process" is tantamount to saying that the State did "something illegal" in regard to the hearing, while leaving it to the defendant to figure out what that might be. That is not to say that a pro se claimant need cite the specific regulatory provision violated to place the State on notice as to the nature of the wrong alleged. But when the notice does not set forth any conduct by the State for which it would be liable, notwithstanding the immunity granted by Arteaga, it does not apprize the defendant of the basis for the action.
While there is no apparent prior ruling specifically addressing the contents of a notice of intention in the context of disciplinary confinement, numerous other decisions of this Court support the conclusion that claimant's notice in this case is insufficient. For example, in Nickelson v State of New York, UID # 2002-015-287, Claim No. 105948, Motion No. M-65247, Collins, J. [Sept. 10, 2002], the claimant asserted that a ruling by a hearing officer placing him in the SHU "deprived the claimant of a fair and impartial hearing, his liberty interests and certain unspecified constitutional rights. . . and was an abuse of the Hearing Officer's Authority." The Court held, in ruling on defendant's motion to dismiss, that:
"[these allegations] do not provide a basis for liability under the Arteaga standard. The claim neither specifies the constitutional provisions allegedly violated nor asserts the violations of any governing statute, rule or regulation or that the employees involved exceeded the scope of their authority."(id.). Other decisions have reached similar conclusions(see Auleta v State of New York, UID # 2010-042-528, Claim No. 118211, Motion No. M-78241, CM-78365, Siegel, J. [Oct. 21, 2010] [dismissing claim alleging wrongful confinement in SHU despite reversal of sanction, where there are "no factual allegations" in complaint to suggest administrative rules were not followed]; Johnson v State of New York,UID # 2009-041-032, Claim No. 115967, Motion No. M-76696, CM-76877, Milano, J. [Aug. 10, 2009] [declining to allow filing of late claim alleging wrongful confinement; claim "sets forth no allegations which would overcome the quasi-judicial immunity conferred in prison disciplinary proceedings", as argument that charge not based on substantial evidence "does not allege that defendant did not comply with 'the governing statutes and regulations'"]; Henriquez v State of New York, UID # 2003-031-015, Claim No. 106593-A, Motion No. M-66149, CM-66240, Minarik, J. [April 3, 2003] [dismissing claim for illegal confinement where "[c]laimant has failed to identify . . . what rules or regulations were allegedly violated during the hearings that resulted in his confinement"]; Clinton v State of New York, UID # 2000-004-506, Claim No. 99100, Motion No. M-60900, Hanifin, J. [May 17, 2000] [dismissing claim where there is no indication that disciplinary proceedings "were not done according to the rules and regulations of the Department of Corrections"]).
The rationale of these holdings, with which I am fully in accord, is applicable to the present motion. While claimant has a lesser burden in setting forth a valid notice of intention than in stating a claim, the notice served in the present case does not meet the applicable standard. The allegation that claimant's constitutional and due process rights were violated provides defendant with no indication of what wrongdoing it is alleged to have committed, nor does the claim state any facts which might give rise to such an indication. Mere boilerplate does not provide defendant with adequate notice to investigate the claim (See Grumet, 256 AD2d at 442 [allegation that claimant slipped and fell, and that State was "careless, reckless and negligent" does not provide sufficient notice of wrongdoing to meet section 11(b)]. Indeed, if the mantra of "due process" or "constitutional violations" were sufficient, every notice in a wrongful confinement case could pass muster.
As noted above, claimant has now filed his claim, and it provides no more detail as to the basis for his wrongful confinement claim than the notice of intention.
Finally, claimant's notice of intention might conceivably be read as alleging a failure on the part of the State to protect him from the excrement and urine allegedly thrown at him by other inmates. Even if the notice could be so construed, it would be unavailing. There is nothing in claimant's notice which makes any allegation that would render the State liable for such attack. Claimant does not allege that the assault was reasonably foreseeable, or that the State knew or should have known of any risk that it would occur (See Sanchez v State of New York, 99 NY2d 247, 252-253 [2002]). His sole basis for tying the State to the attack is that, had he not been placed in the SHU, he would not have suffered the assault. For reasons stated above, that allegation is insufficient, in the present case, to meet the requirements for a notice of intention.
In light of the foregoing, claimant's notice of intention fails to meet the requirements of section 10(b), and his claim is therefore untimely.
Defendant's motion seeking dismissal on that basis is GRANTED, and the claim is dismissed.
August 15, 2011
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims