Opinion
# 2014-044-556 Motion No. M-85366
10-07-2014
JOHN P. SMALL v. THE STATE OF NEW YORK
JOHN P. SMALL, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Ray A. Kyles, Assistant Attorney General
Synopsis
Court denies inmate's motion to treat notice of intention as a claim.
Case information
| UID: | 2014-044-556 |
| Claimant(s): | JOHN P. SMALL |
| Claimant short name: | SMALL |
| 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-85366 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | JOHN P. SMALL, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Ray A. Kyles, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 7, 2014 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, served a notice of intention to file a claim (Notice of Intention) upon defendant State of New York (defendant) by certified mail, return receipt requested on October 11, 2013. The Notice of Intention contains various allegations which may constitute causes of action for, among other things, wrongful confinement, negligence, and medical malpractice. Claimant now moves for permission to treat the Notice of Intention as a claim. Defendant opposes the motion. Claimant replies.
Claimant argues that "the Notice of Intention contains sufficient facts to constitute all of the claims that it may be construed to encompass," and that his efforts to timely file the "initial claim" were thwarted when the Department of Corrections and Community Supervision (DOCCS) locked down Elmira Correctional Facility (Elmira) from July 5, 2013 through July 13, 2013. He also contends that the series of claims asserted "is an extended course of continuous treatment [and] [a]s such, the continuous treatment doctrine should be applied."
Affidavit of John P. Small, sworn to July 7, 2014, in Support of Motion, ¶ 7.
id. It appears that the "initial claim" may be a claim for bailment concerning an inmate lost property claim (facility claim 110-0182-12) which was determined on March 11, 2013 and is discussed infra (see Notice of Intention [Claimant's Motion for Permission to Treat the Notice of Intention as a Claim, Exhibit A] at 1).
Reply Affidavit of John P. Small, sworn to Sept. 7, 2014, ¶ 8.
Conversely, defendant argues that neither the Notice of Intention nor this motion is timely with respect to any of the potential causes of action. Defendant contends that because claimant has failed to set forth plain and concise factual statements in separately numbered paragraphs and the Notice of Intention is so poorly drafted, the State is unable to draft a coherent answer. Defendant further asserts that this Court lacks jurisdiction over several of the potential causes of action such as alleged Federal Constitutional violations and claims against local officials and agencies.
As defendant states, the Notice of Intention is 22 pages long and comprised of over 40 unnumbered paragraphs, most of which contain several factual allegations each. While claimant's drafting is poor and in some instances difficult to follow, the Notice of Intention is not so incoherent as to prevent the Court from deciphering the allegations and addressing this motion.
In his Notice of Intention, claimant alleges that on several occasions in 2007-2008, the Cayuga County Mental Health Center (CCMHC) staff refused to treat him. He further alleges that CCMHC - which is responsible for providing mental health care to inmates at the Cayuga County Jail - also refused to provide him mental health treatment while he was confined there from October 9, 2008 through November 9, 2009. Claimant additionally asserts that Cayuga County correction officers physically assaulted him while obtaining a DNA sample at the direction of the Cayuga County District Attorney. Claimant additionally alleges that CCMHC failed to conduct a psychiatric examination pursuant to CPL Article 730 and then falsified results indicating that he was mentally competent to aid in his defense.
Claimant states that he was shown a document purported to be a County Court order authorizing the DNA sample, but he asserts that there was no signature or evidence that the order had been filed. To the extent that claimant may be asserting that defendant is liable based upon County Court's conduct in either issuing or failing to properly issue the order, recovery is precluded. With exceptions not relevant to this matter, it is well-settled that the doctrine of judicial immunity bars claims against judges of the State for their judicial acts, as well as against the State under the theory of respondeat superior, for any alleged errors made by its judges in their judicial capacity (see e.g. Donald v State of New York, 17 NY3d 389 [2011]; Mosher-Simons v County of Allegany, 99 NY2d 214 [2002]; Murray v Brancato, 290 NY 52 [1943]; Koeppe v City of Hudson, 276 App Div 443 [3d Dept 1950]).
The Court of Claims is a court of limited jurisdiction and is charged with "exclusive jurisdiction over actions for money damages against the state," based upon the acts or omissions of its agencies or employees, where the State is the real party in interest (Monreal v New York State Dept. of Health, 38 AD3d 1118, 1119 [3d Dept 2007]; NY Const., Art. VI, § 9; Court of Claims Act § 9). The Court does not have jurisdiction over local municipalities (see e.g. Whitmore v State of New York, 55 AD2d 745, 746 [3d Dept 1976], lv denied 42 NY2d 810 [1977]; Wright v Department of Social Services, UID No. 2014-018-511 [Ct Cl, Fitzpatrick, J., Apr. 11, 2014]) or over district attorneys, as they are not State officers (Fisher v State of New York, 10 NY2d 60 [1961]). Accordingly, to the extent that claimant is seeking recovery based upon the conduct of CCMHC employees, Cayuga County correction officers, and the Cayuga County District Attorney, the motion to treat the Notice of Intention as a claim containing these causes of action is denied.
Claimant alleges that "[d]efendant, through its personnel at the Office and/or Department of Mental Health and the Mental Health Services Council . . . whether directly or in supervisory/oversight capacity, refused treatment or any other assistance to [c]laimant" (Notice of Intention [Claimant's Motion for Permission to Treat the Notice of Intention as a Claim, Exhibit A] at 2). However, he bases this allegation solely on conduct undertaken by County employees without setting forth any duty on the part of the State to supervise or train the County employees (Wright, UID No. 2014-018-511).
In his Notice of Intention, claimant asserts that when he was transferred into DOCCS custody in November 2009, he was ordered to cut his shoulder-length hair in violation of his right as a Native American to freedom of religion under the First Amendment. Claimant contends that his right to religious freedom was also violated in October 2010 when his Native American Sage was confiscated as contraband, and again in July 2011 when he was advised that he would not be allowed to participate in Native American services unless he provided additional documentation to prove his heritage. Claimant also alleges that he was denied his due process rights during the course of disciplinary proceedings against him. He further asserts that requiring him to cut his hair, terminating his job at the Soap Shop at Great Meadow Correctional Facility (Great Meadow), and imposing certain disciplinary sanctions violated the Eighth Amendment's prohibition against cruel and unusual punishment. Lastly, claimant alleges that because Elmira was on a total lockdown between July 5, 2013 and July 13, 2013, he was denied access to the courts.
As defendant aptly notes, the Court of Claims does not have jurisdiction to consider Federal Constitutional claims, including civil rights violations brought under 42 USC § 1983 (see e.g. Brown v State of New York, 89 NY2d 172, 184-185 [1996]). Moreover, "[a] cause of action for denial of access to the courts is based upon a violation of the Federal Constitution and must be pursued pursuant to 42 USC § 1983" (Gagne v State of New York, UID No. 2001-013-029 [Ct Cl, Patti, J., Nov. 30, 2001]; see Przesiek v State of New York, UID No. 2008-042-518 [Ct Cl, Siegel, J., Sept. 9, 2008]; see also Leach v Dufrain, 103 F Supp 2d 542 [ND NY 2000]). To the extent that claimant may be asserting violations of the Federal Constitution or civil rights violations including denial of access to the courts, his motion to treat the Notice of Intention as a claim is denied.
Claimant alleges that the same conduct set forth above also constitutes violations of the State Constitution. The right of religious freedom under the State Constitution (NY Const., Art I, § 3) has been extended to inmates pursuant to Correction Law § 610 (1). Correction Law § 610 (3) provides in pertinent part that "[i]n case of a violation of any of the provisions of this section any person feeling himself aggrieved thereby may institute proceedings in the supreme court of the district where such institution is situated." To the extent that claimant may be asserting a cause of action for violation of Correction Law § 610 (1), the Court of Claims has no jurisdiction (Correction Law § 610 [3]). Thus, the motion is denied with respect to this cause of action.
To the extent that any alleged constitutional violations such as the denial of due process or imposition of cruel and unusual punishment were the result of claimant's disciplinary proceedings, his remedy was to pursue an administrative appeal, and if unsatisfied with the result, commence a CPLR Article 78 proceeding in Supreme Court (see generally Matter of Davis v Goord, 21 AD3d 606, 609 [3d Dept 2005], lv dismissed and denied 5 NY3d 861 [2005]). Claimant's remedy with respect to the termination of his job at the Soap Shop was to avail himself of the Inmate Grievance Program (7 NYCRR part 701), and if unsuccessful to commence a CPLR Article 78 proceeding in Supreme Court (see e.g. Matter of Miller v Croce, 290 AD2d 662 [3d Dept 2002]; Matter of Konigsberg v Coughlin, 124 AD2d 262, 262 [3d Dept 1986]).
Because alternate remedies were available to claimant, it is not necessary for this Court to recognize a cause of action under the State Constitution (Martinez v City of Schenectady, 97 NY2d 78 [2001]; Brown, 89 NY2d at 184-185). Accordingly, claimant's motion for permission to treat the Notice of Intention as a claim is denied with respect to any cause of action for violation of the State Constitution.
Claimant alleges that defendant lost personal property belonging to him on May 8, 2010, and although he filed a facility claim it was never assigned a claim number or processed. Defendant allegedly lost additional property on September 25, 2010, but there is no indication that he filed a facility claim. Claimant states that in November 2011, he filed a facility claim for property which was allegedly lost during his transfer to Great Meadow (in November 2010). This claim was denied on November 23, 2011, but there is no indication that an appeal was taken. Claimant alleges that on January 23, 2012, he filed a facility claim for a television which he asserts was lost during a cell move. This claim was denied and claimant apparently appealed. However, he alleges that defendant never responded to the appeal. Claimant asserts that he also filed facility claim 110-0182-12 on December 11, 2012 to recover for property which a former inmate allegedly instructed defendant to give to claimant. This facility claim was denied on February 25, 2013 and the appeal denied on March 5, 2013. Claimant was notified of the determination on the appeal on March 11, 2013. Claimant asserts that in July 2013 he was attempting to file a bailment claim with this Court concerning facility claim 110-0182-12, but was prevented from timely doing so when Elmira was locked down.
In Pristell v State of New York (40 AD3d 1198, 1198-1199 [3d Dept 2007]), the Court held that because "there is no provision in Court of Claims Act § 10 (9) which allows for service of a notice of intention to file a claim as a means of extending the time that [such] a claim may be served or filed . . . [the] claimant's service of a notice of intention to file a claim [does] not provide any basis for relief under Court of Claims Act § 10 (8) (a)." Accordingly, this motion to treat the Notice of Intention as a claim must be denied with respect to all of claimant's bailment claims.
The Court will now address the merits of claimant's motion to treat the Notice of Intention as a Claim as it pertains to the remaining potential causes of action for wrongful confinement, negligence and medical malpractice. Court of Claims Act § 10 (8) (a) provides that
[a] claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion 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; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.
In order to be timely, a notice of intention must be served upon the Attorney General within 90 days after the accrual of the claim (cause of action) regardless of whether the conduct was intentional or unintentional (negligent) (Court of Claims Act § 10 [3], [3-b]).
"A cause of action for [the intentional tort of] wrongful confinement within the prison context accrues upon the termination of confinement" (Carlisle v State of New York, UID No. 2006-034-612 [Ct Cl, Hudson, J., Dec. 5, 2006]; see Ramirez v State of New York, 171 Misc 2d 677, 679-680 [Ct Cl 1997]). Claimant alleges that he was wrongfully confined as the result of Inmate Misbehavior Reports issued on March 16, 2010, June 6, 2010 and August 26, 2010. Initially, claimant has failed to set forth the date the disciplinary hearing was concluded and the penalty imposed, or the date that he was released from confinement with respect to the June 6, 2010 Misbehavior Report. The Court cannot determine whether either the Notice of Intention or this motion was timely as it concerns this misbehavior report. Accordingly, the motion must be denied due to the lack of specificity.
With respect to the March 16, 2010 Misbehavior Report, claimant states that he was released from his disciplinary confinement in a Special Housing Unit (SHU) in early May 2010. The disciplinary hearing pertaining to the August 26, 2010 Misbehavior Report was concluded on September 9, 2010 and resulted in a three-month SHU confinement. Therefore, any causes of action for wrongful confinement imposed as a result of the March 16, 2010 Misbehavior Report and the August 26, 2010 Misbehavior Report accrued in May 2010 and December 2010, respectively. Clearly, the Notice of Intention served on October 11, 2013 was served more than 90 days thereafter, and is untimely. Accordingly, the motion is denied with respect to these two instances of allegedly wrongful confinement.
Moreover, the motion itself is untimely and could be denied on that basis as well. The statute of limitations for a cause of action for wrongful confinement (a species of the tort of false imprisonment), is one year from the date of accrual (see CPLR 215 [3]) and in this case expired in May 2011 and December 2011. This motion for permission to treat the Notice of Intention as a claim was made on July 7, 2014, and is clearly untimely.
Claimant has also alleged facts which could support causes of action in negligence. Claimant alleges that he sustained personal injuries when he was assaulted by a fellow inmate on August 25, 2010, presumably due to defendant's negligent supervision. The Notice of Intention was served on October 11, 2013, well over 90 days after the claim accrued and is not timely (Court of Claims Act § 10 [3]). Accordingly, claimant's motion is denied to the extent that he seeks to treat the Notice of Intention as a claim with respect to a cause of action for an inmate-on-inmate assault.
The statute of limitations for a negligence cause of action is three years from the date of accrual (see CPLR 214 [5]) and would have expired on August 25, 2013. Accordingly, this motion made on July 7, 2014 is also untimely and could be denied solely on that basis.
Claimant also asserts that on August 12, 2011, he was injured during the course of performing his job at the Soap Shop at Great Meadow. He asserts that defendant negligently instructed the inmate-workers to move 55-gallon drums using the stairway (apparently the elevator had been painted and was unavailable for use). Claimant states that the drums were slippery and when a fellow inmate dropped his drum down the stairs, it struck claimant in the face, causing lacerations and breaking his eyeglasses. Because claimant's cause of action accrued on August 12, 2011, he was required to serve the Notice of Intention on or before November 10, 2011. Accordingly, the Notice of Intention served on October 11, 2013 is untimely and claimant's motion to treat it as a claim for this cause of action is denied.
Claimant also lists several instances of what he describes as "medical issues" which he states were diagnosed and treated by DOCCS medical staff during his previous incarceration. Claimant alleges that at best, he has received only sporadic treatment for some of these conditions.
Claimant asserts that upon his transfer from the Cayuga County Jail into DOCCS custody on November 9, 2009, he did not receive any of his medications during his 24-hour stay at Auburn Correctional Facility. He further states that after his transfer to Elmira on November 10, 2009, it took several weeks before he obtained even the few medications he had been taking regularly at the Cayuga County Jail. He contends that as a result, he was denied treatment for the majority of his medical and mental health issues. He alleges that each time he was transferred to a different correctional facility, he again had to wait several days to several weeks before he was given medication which had previously been prescribed by DOCCS medical staff. Claimant asserts that he suffers from Hepatitis C and even though he persistently complained of intense liver swelling, he did not receive any treatment until sometime in 2011 when his eyes and skin began to turn yellow. At that time, he was taken to Albany Medical Center where he received intravenous antibiotics for three days and then had surgery to remove his gallbladder.
With respect to his claim that he was not given all his medications for several days after transferring into a different correctional facility, the Court notes that claimant has failed to provide all of the dates he was transferred. However, he does state that he returned to Elmira (where he is currently housed) shortly before April 3, 2012. The Notice of Intention served on October 11, 2013 is clearly untimely having been served more than 90 days after accrual. Similarly, the Notice of Intention is not timely with respect to claimant's cause of action for failure to treat his liver swelling which accrued in 2011. Claimant's motion is denied as it pertains to any cause of action for failure to provide medication between November 9, 2009 and April 3, 2012 or treat his liver swelling.
Affidavit of John P. Small, sworn to July 7, 2014, in Support of Motion, Exhibit A at 19. There is no indication that he was transferred any time between April 2012 and October 2013.
Claimant further asserts that on numerous occasions between 2009 and 2012 he requested that DOCCS medical staff investigate and/or treat a spot on his right lung which allegedly had been identified in 2005 at the Cleveland Clinic. He indicates that a biopsy was performed at that time, but he never received the results. According to claimant, an X ray performed by DOCCS in 2009 did not show the spot, but another X ray taken in 2013 did reveal a spot on claimant's right lung. Claimant contends that if the spot is malignant, DOCCS medical staff has failed to treat it for over four years.
It is well-settled that the 90-day period within which to serve a notice of intention to file a claim for medical malpractice may be tolled pursuant to the continuous treatment doctrine in a situation where the claimant has received "continuous treatment for the same illness, injury or condition which gave rise to the [alleged act of malpractice]" (CPLR 214-a; see Ogle v State of New York, 142 AD2d 37, 39 [3d Dept 1988]; see also Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]). However, the failure of a medical provider to properly render a timely diagnosis and establish a proper course of treatment does not constitute continuous treatment (see Young v New York City Health & Hosps. Corp., 91 NY2d 291, 297 [1998]; Toxey v State of New York, 279 AD2d 927, 929 [3d Dept 2001], lv denied 96 NY2d 711 [2001]; White v Murphy, 277 AD2d 852 [3d Dept 2000]).
Because claimant is asserting a cause of action for malpractice based upon defendant's alleged failure to diagnose and/or treat a spot on his lung, the continuous treatment doctrine does not apply. Accordingly, the Notice of Intention is timely only with respect to allegations of malpractice which may have occurred during the 90-day period prior to its service on October 11, 2013, i.e. on or after July 13, 2013. Moreover, service of the Notice of Intention may have extended the time in which claimant has to serve a claim for two years from the date of accrual, that is until July 13, 2015 (Court of Claims Act § 10 [3]). Accordingly, it is not necessary for claimant to seek permission to treat the Notice of Intention as a claim at this stage.
The Court makes no finding with respect to the sufficiency of the Notice of Intention at this time.
Lastly, claimant asserts that prior to his current incarceration, he was receiving treatment for urinary retention which he claims is a side effect of several medications he currently is taking or previously had taken. On August 23, 2013, medical staff apparently advised him that the right side of his prostate was enlarged. Claimant alleges that in spite of this diagnosis and his difficulty with urination, the medical staff discontinued his prescription for tamsulosin without any explanation. To the extent that claimant is asserting a cause of action in malpractice for discontinuing the medication, the Notice of Intention was served within 90 days of its accrual and is therefore timely. As with claimant's cause of action for the purported failure to treat the spot on his lung, service of the Notice of Intention may have extended the time in which a claim may be filed and served until August 24, 2015. Accordingly, there is no need at this point to treat the Notice of Intention as a claim for this cause of action as well.
Because two years from August 23, 2013 will be a Sunday, claimant may have until Monday, August 24, 2015 in which to file and serve the claim (General Construction Law § 25-a [1]).
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In conclusion, as a court of limited jurisdiction, the Court of Claims has no jurisdiction to hear claims for violations of either the Federal Constitution or 42 USC § 1983, including claims of denial of access to the courts, or claims against any Cayuga County employees. Further, claimant may pursue a cause of action for denial of his right of freedom of religion pursuant to Correction Law § 610 (1) in Supreme Court and may obtain judicial review of his disciplinary proceedings and termination of his inmate job at the Soap Shop pursuant to CPLR Article 78. Given the existence of these alternate remedies, this Court need not recognize any violation of the State Constitution. Further, permission to treat the Notice of Intention as a claim is not available for bailment claims. Moreover, the Notice of Intention was not timely served within 90 days of accrual of the causes of action for wrongful confinement, negligence, and malpractice based upon the failure to provide claimant with his prescribed medication or timely treat his liver swelling. Further, the Notice of Intention was timely served with respect to the causes of action for malpractice based upon the failure to treat a spot on claimant's lung and the discontinuance of tamsulosin, and may have extended the time in which to file and serve a claim containing them. Consequently, permission to treat the Notice of Intention as a claim is not necessary in this instance. Accordingly, claimant's Motion No. M-85366 is denied in its entirety.
October 7, 2014
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on claimant's motion:
1) Notice of Motion filed on July 14, 2014; Affidavit of John P. Small, sworn to on July 7, 2014, and attached exhibits.
2) Affirmation in Opposition of Ray A. Kyles, Assistant Attorney General, dated August 12, 2014, and attached exhibits.
3) Reply Affidavit of John P. Small, sworn to on September 7, 2014.