Opinion
# 2011-049-019 Claim No. 119691 Motion No. M-80035
12-02-2011
AMAKER v. THE STATE OF NEW YORK
Synopsis Case information
UID: 2011-049-019 Claimant(s): ANTHONY D. AMAKER Claimant short name: AMAKER Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119691 Motion number(s): M-80035 Cross-motion number(s): Judge: David A. Weinstein Claimant's attorney: Anthony D. Amaker, Pro Se Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Roberto Barbosa, Assistant Attorney General Third-party defendant's attorney: Signature date: December 2, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Anthony D. Amaker, an inmate appearing pro se, seeks damages for the loss of certain items of his personal property that were placed in storage at Southport Correctional Facility, apparently during the course of his transfer to Attica Correctional Facility (Attica). The claim alleges that on November 1, 2010, he received some but not all of the stored property.
Defendant State of New York has moved to dismiss the claim on the ground that Amaker failed to exhaust his administrative remedies, as required by Court of Claims Act § 10(9). In response, claimant has provided an affidavit and supporting documentation which set forth the following chronology: On November 5, 2010, Amaker filed an institutional claim seeking compensation for the property he contends was lost. On November 23, 2010, he received an Initial Review & Claim Receipt informing him that the claim was under investigation (Aff. in Reply Opp. Ex. A). Claimant sent the account clerk at Attica a letter dated December 4, 2010, enclosing two receipts for the value of some of the property at issue (Aff. in Reply Opp. Ex. B). According to the letter, he was not in possession of all of the receipts because some of them were being held at Southport Correctional Facility. Then, by letter dated March 2, 2011, claimant wrote the Institutional Steward of Attica referencing a February 22, 2011 letter from the Deputy Superintendent at the facility that he had allegedly received, which denied that his property claim had ever existed (Aff. in Reply Opp. Ex. C).In his March 2, 2011 letter, claimant advised that defendant's failure to resolve his property claim as of that date rendered any future such determination untimely under 7 NYCCR § 1700.4(c).
According to claimant's filings, he was unable to obtain a copy of the February 22, 2011 letter.
According to Amaker, some of the letters he wrote to the Albany Central Office were returned to the Superintendent at Attica (Claim ¶ 2[d]) . He alleges that as of the date the instant claim was verified (March 22, 2011), his receipts had not been returned, and his administrative property claim had not been acted upon, even though it had been pending beyond the time frame set forth in 7 NYCCR § 1700.4(c).
Claimant filed his claim in this Court on April 4, 2011, and served it on May 5, 2011. Subsequently, on May 12, 2011, after an investigation, the initial administrative property claim was disapproved (Aff. in Supp. Ex. B).
In its motion, defendant argues that because claimant failed to appeal the initial denial of his administrative claim (and then await decision on such appeal) before filing the instant claim, he did not exhaust his administrative remedies in accordance with section 10(9). In making this assertion, defendant states that the initial administrative determination was made on March 12, 2011. As the documentary evidence indicates that such ruling was made on May 12, the claim in this action was in fact served and filed prior to the time the initial determination disapproving the administrative property claim was issued.
Both exhibit A (Inmate Claim Form) and B (Initial Review) list the date as "5/12/11," and that is the date identified in claimant's affidavit as well.
Claimant opposes the motion, arguing that defendant's actions, including its failure to make a determination of his administrative property claim within the regulatory time period, when viewed in light of his own actions to seek a prompt resolution of his administrative claim, "constitute[] . . . a waiver to any claim of [lack of exhaustion]" (Aff. in Reply Opp. ¶7).
Discussion
Court of Claims Act § 10(9) provides that "[a] claim of any inmate in the custody of the department of corrections and community supervision for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department." After the inmate has exhausted his administrative remedies, the claim must then be served and filed within 120 days.
Department of Corrections and Community Supervision (DOCCS)procedures for inmate claims are set forth in 7 NYCRR Part 1700. Section 1700.3 provides for a two-tier administrative review process, consisting of an "initial review" and an "appeal." Section 1700.4 addresses the timeframes of the process, providing that the "initial review shall be completed within 15 working days of receipt of the claim by the reviewer," and that "[a] claim should be disposed within three months" (§1700.4[b], [c]).An appeal must be made within five days of such opinion, and "should be reviewed within 15 working days of receipt by the reviewer" (§1700.4[d]). Depending on the dollar amount of the claim, appeals may be made either to the facility superintendent, or central office (§ 1700.3[b]).
By Chapter 62 of the Laws of 2011, the Department of Correctional Services was merged with the Division of Parole to create the Department of Corrections and Community Supervision. The regulations currently governing exhaustion are the same as those issued by DOCS pre-merger (see L 2011, ch 62, pt. C, subpt A, § 43 [ "All rules, regulations, acts, orders, determinations, and decisions of the department of correctional services . . . pertaining to the functions and powers transferred and assigned pursuant to this act, in force at the time of such transfer and assumption, shall continue in full force and effect as rules, regulations, acts, orders, determinations and decisions of the department of corrections and community supervision until duly modified or abrogated by the commissioner of the department of corrections and community supervision . . . ."]).
New York State Department of Correctional Services Directive 2733 (III [A][4]): Inmate Personal Property Claim, provides that "a claim must be disposed in 3 months" (emphasis added) .
A claimant must complete both steps in the two-tier process in order to exhaust his administrative remedies pursuant to section 10(9), and such requirement is a condition precedent to bringing a claim against the State (see Williams v State of New York, 38 AD3d 646 [2d Dept 2007]).
However, several decisions of this Court have found that "there are some circumstances under which an inmate may claim that exhaustion has occurred due to defendant's failure to address his claim in a timely manner" (Gagne v State of New York, UID No. 2006-044-005, Claim No. 109626, Schaewe, J. [Dec. 19, 2006] [claimant deemed to have exhausted his administrative remedies, based on defendant's failure to address claimant's appeal within 4½ months, a letter from claimant to defendant that he was going to consider his administrative remedies exhausted, and defendant's failure to respond to the letter]; see also Paladino v State of New York, UID No. 2005-036-102, Claim No. 110824, Motion No. M-70372, Schweitzer, J. [Sept. 15, 2005] [claimant deemed to have exhausted his remedies when claimant established that defendant did not acknowledge that his property claim had been received until two months after it was made]; Shell v State of New York, Claim No. 103998, Motion No. M-65424, Cross Motion No. CM-65936, Waldon, J. [Mar. 4, 2003] [claimant deemed to have exhausted his remedies when DOCS delayed 28 months in ruling on administrative claim]; cf. Abney v McGinnis, 380 F3d 663, 667 [2d Cir 2004] [with respect to analogous provision in Prison Litigation Reform Act (PLRA), 42 USC § 1997e(a), exhaustion "may be achieved . . . where prison officials fail to timely advance the inmate's grievance"]; Hemphill v State of New York, 380 F3d 680, 687 n 6 [2d Cir 2004] [collecting decisions of federal circuit courts holding that an inmate has satisfied the exhaustion requirement under PLRA where facility fails to process administrative grievance within time frame set by regulation]; but see Tafari v State of New York, UID No. 2002-019-591, Claim No. 106576, Motion No. M-65889, Lebous, J. [Dec. 22, 2005] [Court declined to find claimant had exhausted his administrative remedies, notwithstanding defendant's delay in ruling on an administrative claim, and claim was dismissed as premature]).
Claimant couches his argument in terms of "waiver," but that is not the precise doctrine underlying these decisions. Indeed, exhaustion may generally be waived only where the agency acts beyond its authority, or resort to the administrative remedy would be futile (see Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]), circumstances not applicable here. But claimant did not seek to "waive" the administrative grievance process and file suit directly in this case; rather, he made the requisite administrative submission, and only came into court when he received no timely response thereto. Where this is the case, claimant's remedies may (at least under appropriate circumstances as discussed below) be "deemed exhausted" (see Paladino, supra).
Such a result in no way conflicts with the policy rationale for mandating exhaustion before suit. Requiring exhaustion of administrative remedies affords an "agency the opportunity, in advance of possible judicial review, to prepare a record reflective of its 'expertise and judgment'"(Watergate II Apts., 46 NY2d at 57). In this case, DOCCS was afforded the opportunity to exercise its judgment, but it failed to take advantage of that opportunity within its own time constraints.
Watergate II sets forth other reasons for exhaustion, such as allowing agencies to develop a coordinated and consistent regulatory scheme, which do not really apply here.
While there is little legislative history for section 10(9), such record as exists indicates that allowing for exhaustion under present circumstances also does not conflict with the specific purposes underlying this section. The exhaustion requirement imposed for prisoner property claims appears to have been motivated, in conjunction with other measures, by a desire to limit the growth of prisoner litigation and deter frivolous inmate suits.Deeming remedies to be exhausted in cases like this one does nothing to undermine that goal. To the extent that the Legislature believed that prisoners would be deterred from frivolous filings by the delay created by exhaustion and the burden it placed on them prior to litigation, deeming claims exhausted in circumstances like those at bar would not remove these obstacles. In the present case, claimant had to properly commence the administrative claim process, and await a result, before he could sue. He is not being relieved of the administrative requirement that he appeal an adverse determination, with whatever attendant additional burden and delay that would entail; he simply had not received a ruling from which he could appeal.
There is no legislative history of any substance accompanying Chapter 412 of the Laws of 1999, which enacted the exhaustion requirement for prisoner suits in the Court of Claims involving injury or loss of personal property, and required a filing fee for all Court of Claims actions. A comparable exhaustion requirement, however, had been included in another bill introduced in the same session as this statute, and had passed the Senate prior to enactment of Chapter 412. The memorandum in support of that bill, while primarily addressing the imposition of a filing fee, indicates that the purpose behind exhaustion was to limit prisoner suits, and in particular to deter those that are meritless:
"By making prisoners exhaust their administrative remedies and pay a partial filing fee, this bill would place inmates on a more level playing field with all other private litigants . . . This bill would require bored or bitter inmates who would clog the court system with meritless and frivolous claims to engage in the same cost/benefit analysis [as other claimants], thus eliminating the rising tide of baseless prisoner litigation and helping to unclog the courts" (Memorandum in Support, Senate Bill 135, 1999).
Finally, the decisions of this Court cited above have stated that the mere failure of prison authorities to meet the regulatory deadlines does not "automatically" mean that administrative remedies should be deemed exhausted (see Gagne, supra; Paladino, supra). I need not decide, however, whether, and under what circumstances, a Court should not deem a claim exhausted notwithstanding the failure of DOCCS to make a timely ruling thereon. As in both Gagne and Paladino, there are additional factors present here, in addition to the delay itself, that excuse claimant from awaiting the completion of the administrative process. In particular, claimant wrote DOCCS employees in an effort to determine the status of his claim. He also informed the Institutional Steward at Attica that the resolution of his property claim was untimely under 7 NYCCR § 1700.4(c) (see Gagne, supra [remedies deemed exhausted when claimant put prison on notice that he would consider remedies exhausted after time period for ruling had elapsed, and prison did not respond]). Moreover, he avers that in response to his inquiries, he was told that the claim did not exist. Defendant does not contradict any of these assertions, and thus they form the factual record upon which this motion must be decided (see Paladino, supra ["when a claimant has set forth facts from which it could be concluded that exhaustion of administrative remedies has occurred, the burden is on the State to respond in some credible, affirmative fashion to establish that exhaustion did not occur"]). Given this record, the State has failed to establish that dismissal of this action for failure to exhaust is warranted.
In view of the foregoing, it is
ORDERED that defendant's motion no. M-80035 be denied.
December 2, 2011
Albany, New York
David A. Weinstein
Judge of the Court of Claims
Papers considered
1. Defendant's Notice of Motion, Affirmation and annexed Exhibits.
2. Claimant's Affidavit in Reply Opposition and annexed Exhibits.