Opinion
# 2015-038-535 Claim No. 124872 Motion No. M-85450
06-05-2015
JOHN H. WHITE v. THE STATE OF NEW YORK
JOHN WHITE, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Jessica Hall, Assistant Attorney General
Synopsis
Defendant's request to amend caption of motion papers to correct technical error of reference to incorrect claim number granted. Motion to dismiss claim for failure to state a cause of action granted.
Case information
| UID: | 2015-038-535 |
| Claimant(s): | JOHN H. WHITE |
| Claimant short name: | WHITE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124872 |
| Motion number(s): | M-85450 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | JOHN WHITE, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Jessica Hall, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 5, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, has commenced prosecution of two claims. The first claim was served on the Attorney General on May 12, 2014 (see Hall Correspondence, Exhibit F), and was filed with the Court and assigned claim number 124535 on June 17, 2014. Defendant filed a verified answer to claim number 124535 on June 19, 2014 and served it on claimant by mail on that same date. Claim number 124535 includes allegations about double-bunking, lack of security, and other misfeasance by a number of defendant's employees in April and May of 2014. A second claim was served on the Attorney General on June 30, 2014 (see id., Exhibit A), and it was filed with the Court and assigned claim number 124872 on August 20, 2014. Claim number 124872 includes allegations regarding the conduct of defendant's employee Donald Uhler on June 19 and June 24, 2014 and no verified answer to the claim has been filed.
On July 31, 2014, defendant filed and served a notice of motion to dismiss, which was supported by an attorney's affirmation in support of a "pre-answer motion to dismiss" (M-85450). The substance of the motion is addressed to claim number 124872, but the caption on defendant's motion papers is mislabeled with the claim number 124535. Claimant opposed motion M-85450 on the merits, and although he also captioned his motion papers with claim number 124535, his arguments in opposition to the motion address claim number 124872, i.e., the claim alleging misconduct by employee Uhler.
By correspondence dated December 24, 2014, defendant requested that its law office error be corrected and that the caption on the pre-answer motion to dismiss merely be amended by the Court to recite claim number 124872 instead of 124535. Claimant responded with a generalized and ongoing objection to defendant's conduct, and, although he confessed confusion as to what defenses were being offered against which claim, he did not assert any prejudice with respect to his opposition to motion number M-85450 (see White Correspondence, dated Jan. 2, 2015). Because it is clear that defendant's pre-answer motion to dismiss number M-85450 is addressed to claim number 124872 and because claimant responded thereto on the merits of that motion and that claim number, and because the error in captioning the claim was a mere technical error from which claimant has not shown prejudice, the Court will grant the relief requested by defendant and the caption and associated administrative documents will be adjusted to reflect that motion number M-85450 is addressed to claim number 124872.
Claimant correctly asserted that he had not been provided with copies of the exhibits that were appended to defendant's December 24, 2014 correspondence. By correspondence dated January 29, 2015, the Court directed defendant to provide those exhibits to claimant, and claimant has not asserted that defendant did not comply therewith. To the extent that claimant asserts that he is confused as to the defenses asserted against the different claims, it should now be apparent that the answer that was served on claimant on or about June 19, 2014, bearing claim no. "NONE" and OAG No. 14-171962-O is the answer to claim number 124535, inasmuch as that answer was served prior to claimant's service of claim number 124872 on defendant. To the extent that claimant remains confused as to the defenses that are asserted against claim number 124535, he may write to the Court to request a courtesy copy of the verified answer to claim number 124535.
Turning to the merits of the motion to dismiss claim number 124872, it asserts the following facts:
"On June 19th, 2014 Donald Uhler verbally stated the following statements following claimant's request for protective custody stemming from previous physical assaults and threats by employees within facility against [claimant]; '. . . Hey, Johnny White, Johnny White'. Uhler did not address the protective custody request nor the security concerns presented, Uhler chose to harass claimant, conduct specifically prohibited within institutional directive (no. 4040) . . . Despite claimant's name being John White, the error Uhler committed amounted to " [sic] employee misconduct meant to annoy, intimidate or harm an inmate."
(Claim no. 124872, ¶ 3). The claim further alleges:
"On June 24th, 2014 Donald Uhler verbally harassed claimant a second time, purposely calling claimant out of his name in the same mockery fashion, while completely disregarding claimants [sic] security concerns. Uhler's conduct undermined his authority to investigate the security concerns, in addition, Uhler's failure to act in the appropriate manner during Administrative Rounds constituted a complete abandonment of duty and oath of office. Uhler fully violated the Special Contract approved by the State and the NYSDOCCS. see, (Directive no. 4933, sec. II (D) )."
(id., ¶ 4). The claim further alleges that on these two dates, claimant was not permitted to speak with a unit supervisor, watch commander, captain, or any guidance unit counselor (see id., ¶ 5), that on June 25, 2014, he was denied the opportunity to express his security concerns to Uhler and the Hub-Superintendent during rounds (see id., ¶ 10), and it is alleged that Uhler's conduct was intentional (see id., ¶ 14). The claim alleges that claimant received threats of physical attack from one or more isolation inmates housed near claimant (see id., ¶ 6), that defendant's agents have failed to respond to, and otherwise mishandled, claimant's security concerns (see id., ¶¶ 7, 12, 17), and that claimant expects such conduct to continue into the future (see id., ¶¶ 1, 13, 17). The claim refers to defendant's failures to abide by " 'Correctional Law, Institutional Directives The NYS Employee Manual, including but not limited to the NYS Constitution . . . [and] [a] Special Contract' " (id., ¶ 2; see also ¶¶ 3-5) and defendant's failure to supervise, train or sanction Uhler (see id., ¶ 9). Claimant asserts emotional injuries in the nature of inability to eat meals, insomnia, depression, stress, fear, and other unspecified psychological impacts (see id., ¶¶ 8, 11, 17).
Defendant moves to dismiss the claim on the grounds that it is premature, that it fails to state a cause of action against defendant, and that it is jurisdictionally defective because it does not comply with the pleading requirements of Court of Claims Act § 11 (b). In opposition to the motion, claimant addresses only the second of these grounds, to which the Court will turn.
Defendant acknowledges the broad reading of a pleading that is the subject of a motion to dismiss for failure to state a cause of action: "claimant's claim is liberally construed and all facts asserted therein, as well as its submissions in opposition to defendant's motion, are accepted as true (see CPLR 3026; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; see also Nonnon v City of New York, 9 NY3d 825, 827 [2007]; State of New York v Shaw Contract Flooring Servs., Inc., 49 AD3d 1078, 1079 [2008]). Where, as here, the motion is premised upon claimant's failure to state a claim (see CPLR 3211[a][7] ) . . . the dispositive inquiry is whether it has a cause of action and not whether one has been stated, i.e., "whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; accord Nonnon v City of New York, 9 NY3d at 827)."
(IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [3d Dept 2008], lv denied 11 NY3d 706 [2008]; see Hall Affirmation, ¶¶ 10-12). Defendant asserts that the claim should be dismissed because, even giving this pro se claim the benefit of the generous view to which it is entitled, the claim does not state a constitutional tort that is actionable in the Court of Claims (see Hall Affirmation, ¶¶ 13-17), nor does it state a cause of action against defendant sounding in the intentional infliction of emotional distress (see id., at ¶¶ 19-21), or one sounding in negligence (see id., at ¶¶ 22-24). Defendant also argues that any challenge to decisions by defendant to deny claimant protective custody must be brought in Supreme Court in a proceeding pursuant to CPLR article 78 (see id., at ¶ 18), and that, in any event, such decisions are discretionary determinations for which defendant enjoys immunity from liability (see id., at ¶¶ 18, 24).
The claim does not assert an actionable constitutional tort. As defendant asserts, a cause of action sounding in tort based upon alleged violations of the State constitution is a narrow remedy that is cognizable only when money damages due to the constitutional violation is the sole remedy available to the claimant, but not where the claimant has alternate available remedies (see Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]; Deleon v State of New York, 64 AD3d 840, 840-841 [3d Dept 2009], lv denied 13 NY3d 712 [2009]). Here, claimant's allegations that he was verbally harassed or assaulted by Uhler are matters that are amenable to an institutional grievance and subsequent judicial review pursuant to CPLR article 78 (see Matter of Bermudez v Fischer, 71 AD3d 1361 [3d Dept 2010], lv denied 15 NY3d 702 [2010]; Matter of Davis v Burge, 55 AD3d 1162 [3d Dept 2008]).
To the extent that the claim includes allegations that may support a cause of action sounding in the intentional infliction of emotional distress, those allegations are insufficient to support such a cause of action. This claim alleging misconduct by correction personnel must be pursued against the State under respondeat superior, which lies only if the employee was acting in his official capacity when he committed the allegedly tortious conduct (see Brown v State of New York, 125 AD2d 750, 752 [3d Dept 1986]). "[U]nder well-settled authority, where the act complained of constituted official conduct, public policy prohibits the maintenance of a suit against the State for intentional infliction of emotional distress" (id.). Thus, this claim against the State cannot state such a cause of action as a matter of law. Moreover, the allegations in support of a cause of action for intentional infliction of emotional distress must allege conduct that is "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious und utterly intolerable in a civilized community" (Doe v Community Health Plan -- Kaiser Corp., 268 AD2d 183, 188 [3d Dept 2000]; Hart v Child's Nursing Home Co., 298 AD2d 721, 722 [3d Dept 2002]). The conduct of Uhler that is alleged in the claim does not rise anywhere near this level of incivility.
To the extent that the claim is based upon determinations by defendant to deny claimant's requests for protective custody, subject matter jurisdiction of such claims resides in the Supreme Court:
"Initially, the threshold question in determining the subject matter jurisdiction of the Court of Claims is whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim. The second inquiry, regardless of how a claimant categorizes a claim, is whether the claim would require review of an administrative agency's determination - which the Court of Claims has no subject matter jurisdiction to entertain. Notably, an administrative agency's determination may be reviewed only in the context of a CPLR article 78 proceeding commenced in Supreme Court, and not in an action brought in the Court of Claims."
(Buonanotte v New York State Off. of Alcoholism & Substance Abuse Servs., 60 AD3d 1142, 1143-1144 [3d Dept 2009] [quotations and citations omitted], lv denied 12 NY3d 712 [2009]). Although the instant claim seeks money damages, a denial of an inmate's request for protective custody is reviewable by Supreme Court upon a petition pursuant to Article 78 of the CPLR (see e.g. Matter of Lopez v Fischer, 83 AD3d 1230 [3d Dept 2011], lv denied 17 NY3d 709 [2011]), and thus, the instant claim fails to state a cause of action for an alleged failure to provide protective custody that is prosecutable in the Court of Claims.
Claimant's opposition to the motion on the ground that the claim asserts a cause of action sounding in assault (see Claimant's "Affirmation," ¶ 7) is unavailing. As stated by the Appellate Division, Second Department:
"While '[a]n action for an assault need not involve physical injury, but only a grievous affront or threat to the person of the plaintiff" (Di Gilio v Burns Intl. Detective Agency, 46 AD2d 650, 650 [1974]; see Reichle v Mayeri, 110 AD2d 694 [1985]), words, without some menacing gesture or act accompanying them, ordinarily will not be sufficient to state a cause of action alleging assault (see Carroll v New York Prop. Ins. Underwriting Assn., 88 AD2d 527, 527 [1982]).
(Gould v Rempel, 99 AD3d 759, 760 [2d Dept 2012]; see also, 2A NY PJI 2d 3:2, at 3 [2015] ["there must be some menacing act or gesture that causes the plaintiff to believe that a harmful or offensive bodily contact is about to occur"]). Here, as in Gould, claimant "did not sufficiently plead that the defendant engaged in such conduct that would have caused [him] to become apprehensive of an imminent harmful or offensive contact" (id.). Accordingly, the claim does not state a cause of action for civil assault.
To the extent that the claim asserts violations of various provisions of Directive 4933 of the Department of Correction and Community Supervision (DOCCS) (see Claim No. 124872, ¶¶ 4, 5), claimant has not submitted a copy of that directive either with the claim or with his opposition to defendant's motion, and thus, the Court cannot conclude that it provides a basis for a sustainable cause of action. To the extent that claimant opposes the motion with the argument that Uhler's conduct violated various provisions of DOCCS Directive 4040 (see Claim Number 124872, ¶ 3; Claimant's "Affirmation," ¶ 22), and assuming without deciding that such violations would give rise to a direct cause of action in the Court of Claims, that directive relates to the Inmate Grievance Program, and its applicability to the facts alleged in the claim is unexplained. Directive 4040 governs the process and rules to be followed relating to inmate grievances, the composition of the Inmate Grievance Resolution Committee (IGRC), and the conduct of the members of the IGRC, but the claim makes no allegation that Uhler was a member of the IGRC or that his alleged misconduct was in any way related to a grievance.
Similarly, claimant's opposition to the motion to dismissed based upon the "entire subdivision" of Correction Law § 137 (5) is unexplained (see Claimant's "Affirmation," ¶ 16; see also Claim Number 124872, ¶ 2 [citing Correction Law §§ 112 through 149 [a]). The statutory provision states in its entirety:
"No inmate in the care or custody of the department shall be subjected to degrading treatment, and no officer or other employee of the department shall inflict any blows whatever upon any inmate, unless in self defense, or to suppress a revolt or insurrection. When any inmate, or group of inmates, shall offer violence to any person, or do or attempt to do any injury to property, or attempt to escape, or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline, to secure the persons of the offenders and to prevent any such attempt or escape."
(Correction Law § 137 [5]). Although the claim alleges that Uhler's calling claimant by his name was meant to "annoy, intimidate or harass" (see Claim no. 124872, ¶ 3) and that Uhler "mocked" claimant (see id., at ¶ 4), it includes no specific allegation of "degrading treatment," and the Court cannot discern any in the claim (see Flemming v State of New York, 120 AD3d 848, 849 [3d Dept 2014]). There is no allegation of physical assault or violence or other conduct that falls within this provision, and thus, the factual allegations in the claim are insufficient to state a cause of action for a violation of Correction Law § 137 (5).
Although defendant requests that the claim be dismissed in its entirety (see Hall Affirmation, Wherefore clause), defendant does not address those allegations in the claim that support a cause of action sounding in negligent supervision or training of Uhler. Such a cause of action "require[s] allegation that the defendant knew or should have known of its employee's propensity to engage in the conduct that caused the plaintiff's injuries, and that the alleged negligent supervision or retention was a proximate cause of those injuries" (Gray v Schenectady City School Dist., 86 AD3d 771, 773 [3d Dept 2011]). While an employer may be found liable on this theory only if the employee was acting outside the scope of his employment (see id., 773-774), that element of the cause of action need not be expressly stated in the pleading (see Porcelli v Key Food Stores Co-Op. Inc., 44 AD3d 1020, 1021 [2d Dept 2007]). Given the liberal reading afforded to a pleading on a motion to dismiss for failure to state a cause of action, this claim alleges that defendant's employee Uhler, on June 19 and 24, 2014, verbally harassed claimant, that defendant failed to "supervise, train or sanction Uhler's conduct throughout an extensive period and continuing throughout present day," and that defendant "had been on actual and constructive notice concerning Uhler's conduct" (Claim no. 124872, ¶ 9; see also ¶¶ 3, 4 and 17). These allegations, on their face, support a cause of action for negligent hiring and supervision, and defendant has offered no argument to the contrary. Defendant's assertions that the claim fails to comply with Court of Claims Act § 11 (b) because it does not particularize the state's conduct or state a "meaningful" accrual date (see Hall Affirmation, ¶ 25), are unpersuasive. The claim alleges that Uhler engaged in certain conduct on June 19 and 24, 2014, that defendant knew of his propensity for such conduct, and that defendant failed to supervise or train him. In the absence of argument as to how these allegations are insufficient to comply with Court of Claims Act § 11 (b), this cause of action will not be dismissed (compare Morra v State of New York, 107 AD3d 1115 [3d Dept 2013] [claim alleging negligent supervision of State Police investigator omitted any facts relating to, among other things, the investigator's conduct over a two-year period]). Similarly, to the extent that defendant challenges this cause of action on the ground that it is premature (see Hall Affirmation, ¶ 3), and in light of the fact that the claim was commenced after the alleged dates of Uhler's actions, and in the absence of argument by defendant on the issue of prematurity, the Court will not dismiss this cause of action on that ground.
In sum, defendant has demonstrated that the claim does not state causes of action sounding in constitutional tort, intentional infliction of emotional distress, failure to provide protective custody, assault, or actionable violations of DOCCS Directives or Correction Law § 137 (5), and claimant's opposition to defendant's motion has not demonstrated otherwise. In light of the conclusion that the claim fails to state those causes of action, defendant's remaining arguments in support of dismissal of them need not be addressed. However, defendant has not prevailed on its motion to the extent that it seeks dismissal of a cause of action sounding in negligent hiring and supervision. Accordingly, it is
ORDERED, that motion number M-85450 is GRANTED IN PART, and claim number 124872 is DISMISSED EXCEPT for a cause of action sounding in negligent supervision and training, and it is further
ORDERED, that defendant may file and serve an answer to the claim and that cause of action within forty (40) days of the date of filing of this Decision and Order.
June 5, 2015
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim Number 124535, filed June 17, 2014; (2) Verified Answer, filed June 19, 2014; (3) Affidavit of Service of Verified Answer, sworn to June 19, 2014; (4) Claim Number 124872, filed August 20, 2014; (5) Notice of Motion to Dismiss, dated July 31, 2014; (6) Affirmation of Jessica Hall, AAG, in Support of a Pre-Answer Motion to Dismiss, dated July 31, 2014; (7) Claimant's "Affirmation," Memorandum of Law in Opposition to Defendants Motion to Dismiss, sworn to August 13, 2014, with Exhibits; (8) Correspondence of Jessica Hall, AAG, dated December 24, 2014, with Exhibits A-F; (9) Correspondence of John H. White, dated January 2, 2015, with Attachment; (10) Correspondence of Hon. W. Brooks DeBow, dated January 29, 2015.