Opinion
# 2017-038-527 Claim No. 123126 Motion No. M-88896
03-28-2017
JESSIE J. BARNES v. THE STATE OF NEW YORK
JESSIE J. BARNES, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Douglas R. Kemp, Assistant Attorney General
Synopsis
Claimant's motion to amend the claim granted in part and denied in part. The proposed causes of action that merely amplify allegations in the original claim will be permitted, but that which states a new cause of action not previously stated would impermissibly expand the scope of the claim, and is time barred in any event. Claimant's request to amend the ad damnum clause granted in part, but the pro se claimant may not include a request for attorneys fees in the amended ad damnum clause.
Case information
| UID: | 2017-038-527 |
| Claimant(s): | JESSIE J. BARNES |
| Claimant short name: | BARNES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123126 |
| Motion number(s): | M-88896 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | JESSIE J. BARNES, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Douglas R. Kemp, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 28, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, has filed this claim which states that it "is for improper training and supervision retention, ministerial negligence, discrimination" by various supervisory personnel of the Department of Corrections and Community Supervision (DOCCS) and Upstate Correctional Facility (see Verified Claim, ¶ 2), and it alleges numerous incidents of misconduct by corrections staff between July 19, 2011 and November 2012 (see id., ¶¶ 2; 3-27). Claimant moves for permission to amend the claim, which defendant opposes.
Claimant's notice of motion and the proposed amended claim are not accompanied by an affidavit or memorandum of law that sets forth argument in support of the proposed amendments.
By decision and order dated February 22, 2016, this Court granted in part defendant's cross motion to dismiss the claim, and dismissed any causes of action: (1) asserting a violation of claimant's right to free exercise of religion; (2) arising from allegations that Correction Officer (CO) Garrison issued a false inmate misbehavior report (IMR) on April 15, 2012; (3) seeking compensation for the alleged destruction of claimant's legal papers on April 15, 2012; and (4) alleging that a battery occurred on June 14, 2012 (see Barnes v State of New York, UID No. 2016-038-510 [Ct Cl, DeBow, J., Feb. 22, 2016]). That part of defendant's cross motion that sought dismissal of allegations that claimant was denied a razor for a period of 16 months commencing on July 19, 2011 was denied (id.). Unaddressed in the prior decision and order are the allegations in the claim that claimant was placed on a restricted diet from April 8 through April 15, 2012 in violation of DOCCS rules (see Verified Claim, ¶¶ 4,5), that claimant was "arbitrarily and capriciously" placed on a restricted diet for seven days by Hearing Officer (HO) L. Stickney on May 21, 2012 and that claimant was ejected from the hearing by HO Stickney in violation of DOCCS rules (id., ¶¶ 15, 16), and that claimant was placed on a pre-hearing restricted diet on March 21, 2012 in retaliation for having filed grievances and that he was placed on a 10-day restricted diet by HO Bullis, in violation of substantive due process (id., ¶¶ 17,18).
CPLR 3025 (b) provides in pertinent part that "[a] party may amend his . . . pleading, or supplement it by setting forth additional or subsequent transactions or occurrences . . .". Leave to amend a claim should be freely given "unless the proposed amendments plainly lack merit or would cause the nonmoving party to suffer prejudice or unfair surprise" (Bastian v State of New York, 8 AD3d 764, 765 [3d Dept 2004]; see Matter of Miller v Goord, 1 AD3d 647, 648 [3d Dept 2003]; Acker v Garson, 306 AD2d 609, 610 [3d Dept 2003]). Whether to grant such relief is a matter committed to the discretion of the court (see Thibeault v Palma, 266 AD2d 616, 617 [3d Dept 1999]).
The proposed amended claim sets forth four causes of action and decreases the ad damnum clause. The first cause of action in the proposed amended claim alleges improper training and supervision relating to a razor deprivation order that was imposed on claimant on July 19, 2011 for a period of 16 months (see Amended Verified Claim, ¶¶ 4-6). Defendant opposes this amendment on the ground that it "is redundant with the allegations in the original Claim, which alleges the same razor deprivation" (Kemp Affirmation, ¶ 3). In a reply submission, claimant argues that the proposed first cause of action is "more detailed and specific" than the allegations in the original claim (Barnes Reply, ¶ 3). The Court agrees that the proposed first cause of action appears to amplify the allegations in the original claim, and defendant does not argue that this proposed amendment would cause it to suffer prejudice or unfair surprise. Accordingly, claimant will be permitted to serve and file an amended claim containing the first cause of action.
The second and third causes of action in the proposed amended claim set forth allegations that are similar: the second alleges that claimant was charged with violating rules in a false IMR issued by CO Hyde on November 26, 2011 and that HO Bullis, who conducted a disciplinary hearing on the charges that concluded on December 15, 2011, denied claimant certain liberty interests in violation of DOCCS rules and imposed a restricted diet penalty that was subsequently reversed and expunged on May 8, 2012 (see Amended Verified Claim, ¶¶ 7-12); the third alleges that claimant was charged with violating rules in a false IMR filed by CO Mitchell-Oddey on March 21, 2012, and that HO Bullis, who conducted the disciplinary hearing on the charges on April 3, 2012, denied claimant certain liberty interests in violation of DOCCS rules and imposed a restricted diet penalty that was subsequently reversed and expunged on October 17, 2012 (see id., ¶¶ 13-18). Defendant opposes these two proposed causes of action on the grounds that they "are separate and distinct from those alleged in the original Claim" and that they "will involve different proof than the claims already alleged in the original Claim" (Kemp Affirmation, ¶ 10). Thus, defendant argues, the proposed amended claim " 'impermissibly expands the scope of the original claim' " (id., ¶ 10, quoting Pastorell v State of New York, UID No. 2010-009-038 [Ct Cl, Midey, Dec. 2, 2010]). Defendant further contends that inasmuch as neither the Notice of Intention nor the claim makes reference to either of the IMRs or to the subsequent disciplinary hearings, the claims asserted in the second and third causes of action are untimely and barred by applicable statutes of limitations.
The allegations in the second cause of action appear nowhere in the original claim and thus, this proposed amendment would add a new cause of action that would "impermissibly expand the scope of the original proceeding" (Matter of Miller v Goord, 1 AD3d at 648; see also McRae v State of New York, UID No. 2016-018-709 [Ct Cl, Fitzpatrick, J., Mar. 24, 2016]). Moreover, even if the amendment did not impermissibly expand the scope of the original proceeding, the cause of action is untimely and jurisdictionally unsound because it was not brought within 90 days of its accrual as required by either Court of Claims Act §§ 10 (3) and 10 (3-b) (see Brown v State of New York, UID No. 2010-038-579 [Ct Cl, DeBow, J., Dec. 9, 2010]; Malik v State of New York, UID No. 2010-038-551 [Ct Cl, DeBow, J., June 29, 2010]). Nor was claimant's time to bring this cause of action extended by service of a notice of intention to file the claim, as the allegations in the proposed second cause of action are not stated in either of the notices of intention that claimant served on defendant (see Verified Claim, Notice of Intention, verified July 10, 2012 and Notice of Intention, verified November 14, 2012). For these reasons, the amended claim that will be allowed shall not include the proposed second cause of action.
Claimant correctly argues that the allegations in the third cause of action appear to merely elaborate the allegations in paragraphs 17 and 18 of the claim, namely that on March 21, 2012 claimant had a pre-hearing restricted diet imposed upon him and that HO Bullis subsequently imposed a 10-day restricted diet that violated claimant's due process. Thus, the Court disagrees with defendant's contention that the proposed third cause of action impermissibly expands the scope of the claim. Moreover, defendant does not argue that this proposed amendment would cause it to suffer prejudice or unfair surprise. Accordingly, claimant will be permitted to serve and file an amended claim containing the third cause of action. Inasmuch as this is not a new cause of action but mere amplification of allegations already in the claim, defendant's contention that the proposed cause of action would be untimely is impertinent.
The fourth cause of action alleges that the negligence of defendant and its agents causes claimant certain emotional, mental and physical injuries, allegations that merely restate and expand upon the injuries alleged to have been caused by defendant's conduct. Defendant has not argued that this amendment lacks merit or that it would suffer prejudice or unfair surprise due to the proposed amendment, and thus, the proposed fourth cause of action will be permitted.
Finally, the proposed ad damnum clause seeks to reduce the value of his claim from thirty thousand dollars ($30,000.00) to five thousand five hundred dollars and fifty cents ($5,500.50), plus interest, attorneys fees, costs and disbursements in damages. Inasmuch as claimant is prosecuting this claim pro se, his request for attorneys fees is patently unsupportable. However, the remainder of the proposed amendment to the ad damnum clause appears appropriate and defendant has made no argument in opposition thereto, claimant will be permitted to amend the claim to seek damages in the amount of $5,500.50, plus interest and costs and disbursements.
Accordingly, it is
ORDERED, that claimant's motion number M-88896 is GRANTED IN PART, to the extent that claimant shall be permitted to file and serve a verified amended claim incorporating the First, Third and Fourth Causes of Action in the proposed amended claim and an ad damnum clause seeking $5,500.50, plus interest and costs and disbursements; and it is further
ORDERED, that claimant shall file and serve the verified amended claim in the manner set forth in the Court of Claims Act within thirty (30) days of the date of filing of this Decision and Order, and it is further
ORDERED, that defendant shall file and serve its answer to the verified amended claim within twenty (20) days of service of the verified amended claim, and it is further
ORDERED, that claimant's motion number M-88896 is DENIED in all other respects.
March 28, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Verified Claim, filed August 20, 2013, with Exhibits (including Notice of Intention, verified July 10, 2012 and Notice of Intention, verified November 14, 2012); (2) Verified Answer, filed November 1, 2013; (3) Notice of Motion, dated July 5, 2016; (4) Amended Verified Claim, verified July 5, 2016; (5) Affirmation in Opposition of Douglas R. Kemp, AAG, dated August 15, 2016; (6) Reply of Jessie J. Barnes, sworn to August 30, 2016, with Exhibit A.