Opinion
# 2018-040-048 Claim No. 128195
05-21-2018
LENNY WRIGHT v. THE STATE OF NEW YORK
Lenny Wright, Pro Se BARBARA D. UNDERWOOD Acting Attorney General of the State of New York By: Thomas Trace, Esq., Senior Attorney
Synopsis
Court finds Claimant failed to establish by a preponderance of the credible evidence that Defendant is liable in connection with his Claim.
Case information
| UID: | 2018-040-048 |
| Claimant(s): | LENNY WRIGHT |
| Claimant short name: | WRIGHT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128195 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Lenny Wright, Pro Se |
|---|---|
| Defendant's attorney: | BARBARA D. UNDERWOOD Acting Attorney General of the State of New York By: Thomas Trace, Esq., Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | May 21, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Pro se Claimant, Lenny Wright, failed to establish, by a preponderance of the credible evidence, that Defendant was liable in connection with his Claim. A trial of the Claim was held on April 18, 2018, at the Court of Claims in Utica, New York. At trial, the Court had marked as Court Exhibits 1 and 2, respectively, Claimant's filed Claim and the State's filed Answer. Claimant submitted into evidence nine documents (Exs. 1- 9). The State submitted into evidence four documents (Exs. A- D). There were two witnesses: Claimant; and Cynthia Lockhart, the Education Supervisor at Mid-State Correctional Facility (hereinafter, "Mid-State").
It is the stated goal of the Department of Corrections and Community Supervision (hereinafter, "DOCCS") that inmates possess high school diplomas, or their equivalent, prior to being released, and DOCCS requires them to participate in educational programming until such status is achieved (see Ex. D [Directive No. 4804], part I). Such participation is a prerequisite for higher paying inmate prison jobs, as well as eligibility for various programs (id.). Annual waivers may be requested and granted with the approval of a correctional facility's Deputy Superintendent for Program Services (hereinafter, "DSP") (id., part II [F]). The DSP may issue a waiver from DOCCS' mandatory education policy if, in his or her judgment, an inmate; (1) has disciplinary problems; (2) fails to progress significantly in academic programs; or (3) has medical, emotional, or psychological problems (id., part IV [G][1- 3]). An inmate with a disability also may request a reasonable accommodation so that he or she can participate successfully in the education program, including more time for the completion of tasks (id., part V [A]).
Mr. Wright received his first waiver from such educational programming from DOCCS and the Office of Mental Health (hereinafter, "OMH") in 2001 because of his "failure to progress" (see Claim, ¶ 3; Ex. 1). He said that he was not evaluated, however, pursuant to DOCCS' "Special Education Services" Directive to determine whether or not he had a learning disability (id.; see Ex. 4 [DOCCS Directive 4805]). Mr. Wright did receive Neuropsychological testing in 2002, which determined that he was "very limited in tasks that require speeded processing of information and short-term working memory" (Ex. 2, p. 5). One recommendation was that Claimant be given an extended amount of time on academic timed exams and to complete manual tasks (id., p. 10). Claimant asserts that, after that testing, OMH recommended that Mr. Wright be granted a continued school waiver while he was incarcerated (Claim, ¶ 3). In 2010, OMH evaluated Claimant and, after noting the 2002 testing, recommended that Mr. Wright "have a continued academic/educational waiver while incarcerated" and be exempted from "any and all" such programming (Ex. B, p. 7).
In 2015, Claimant's school waiver lapsed and, from March 9, 2015 to March 29, 2015, Mr. Wright was enrolled in the adult basic education II program (hereinafter, "ABE II") at Mid-State (see Ex. B, p. 1). Ms. Lockhart explained that ABE II is taught at a 3rd through 6th grade level and, while it is not a special education class, it is designed for low-level learners, and is the lowest level of academic services. It is part of the academic education program at Mid-State. Ms. Lockhart also stated that this placement was appropriate and consistent with test results Mr. Wright achieved from 1996 to 2001 (see Ex. B, p. 8; see also, Ex. A, p. 7 [similar test results from 2013]). Ms. Lockhart said that Claimant was not happy with his placement, however. On March 12, 2015, he filed an Inmate Grievance requesting reinstatement of his "longstanding school waiver" (Ex. B, pp. 5- 6), and, on March 24, 2015, Claimant was granted a continued waiver from DOCCS' mandatory education policy. The waiver cited both disciplinary, as well as medical, psychological, and emotional reasons for the approval, including Mr. Wright's "antisocial behavior," as well as "numerous cognitive limitations," and "compromised memory" (Ex. A, p. 7).
On January 27, 2016, Ms. Lockhart endorsed Claimant's request for a continued waiver submission, citing medical, psychological, and emotional reasons (Ex. A, p. 6). Mr. Wright wrote to Ms. Lockhart on February 8, 2016, confirming that, "[y]es, I would like the school waiver renewed at its earliest convenience" (Ex. A, p. 2). OMH, however, advised Anne Joslyn, Mid-State's DSP, in a February 10, 2016 e-mail, that it was unclear why Mr. Wright was granted the 2015 school waiver for psychological reasons, but that, in any event, Claimant had "no currently identified mental health treatment needs," and OMH saw no psychological basis for a school waiver (Ex. A, p. 3). Ms. Lockhart wrote to Claimant on April 4, 2016, to inform him that Mid-State's OMH clinical staff had reevaluated him and determined that he did not have current mental health treatment needs so that he no longer qualified for a waiver based upon mental health reasons. She further advised him that he either would have to return to academic programming, or sign a form refusing to participate (Ex. A, p. 1). The Claim alleges that refusal to participate would adversely affect certain privileges Mr Wright had enjoyed (Claim, ¶ 3).
Claimant asserts that, after he filed his Claim, staff at Mid-State began to comply with the the 2002 Neuropsychological recommendations. In October 2016, Claimant was evaluated again in order to determine if he had a learning disability that would qualify him to receive reasonable testing accommodations. His general cognitive ability was determined to be within the low average range of intellectual functioning, but the speed with which he was able to process material, as well as his ability to sustain attention, concentrate, and exert mental control, were only in the borderline range (Ex. A, pp. 23- 25). A reasonable accommodation was granted on October 21, 2016, pursuant to which Mr. Wright was given extended (double) time to complete tests, and was permitted to use a calculator for all portions of tests (Ex. A, p. 4). Claimant noted, however, that the accommodation was granted within only a few weeks of his release from custody on November 1, 2016.
The Claim was filed with the office of the Clerk of the Court on July 11, 2016 (see Court Ex. 1).
The Claim asserts causes of action for harassment against Claimant, and infliction of emotional suffering and mental anguish upon him because, in 2016, the State failed to renew his longstanding waiver from participation in mandatory education policy programs (see Court Ex. 1, ¶¶ 2, 7, 8). Mr. Wright further asserts that the denial of his school waiver was "unjustified," and "was done intentionally and willfully" (id., ¶ 3).
At trial, however, Mr. Wright pursued a different theory, arguing that Defendant discriminated against him when it failed to implement the 2002 recommendation that he be given a reasonable accommodation, specifically, additional time to take tests. Instead, he was granted a series of school waivers which, he asserted, denied him the opportunity to obtain proper educational skills. Mr. Wright testified that he applied for the school waivers because DOCCS was not monitoring the renewal dates. He states that he did not refuse to go to school. Rather, he simply followed instructions both from the Education Supervisor, as well as OMH.
All the while, however, Claimant maintains that he was "waiting to get help in the educational field." Claimant asserts that Defendant violated DOCCS' Directive No. 4805 by not offering him Special Education Services programming (see Ex. 4).
All quotations not otherwise attributed are taken from the electronic recording of the trial and/or the Court's trial notes. --------
The Court has considered the evidence, including a review of the exhibits, listening to the witnesses testify and observing their demeanor as they did so. Each of the witnesses offered generally sincere and forthright testimony. Claimant was notably poised and articulate in presenting his Claim. Nevertheless, Mr. Wright failed to establish his Claim by a preponderance of the credible evidence.
Claimant's cause of action for harassment must be dismissed because it is well settled that New York does not recognize a common law cause of action to recover damages for harassment (Wells v Town of Lenox, 110 AD3d 1192, 1193-1194 [3d Dept 2013]; Monreal v New York State Dept. of Health, 38 AD3d 1118, 1119 [3d Dept 2007]; Daulat v Helms Bros., Inc., 18 AD3d 802, 803 [2d Dept 2005]). Likewise, Claims of intentional infliction of emotional distress against governmental entities are barred as a matter of public policy (Moore v Melesky, 14 AD3d 757, 761 [3d Dept 2005]; Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]; Brown v State of New York, 125 AD2d 750, 752 [3d Dept 1986], lv dismissed 70 NY2d 747 [1987]). Here, Claimant clearly asserted that the actions by the DOCCS' employees in denying his school waiver were done willfully and intentionally. Even if the Claim could be read to state a cause of action for negligent infliction of emotional distress, it, too, would fail for want of medical evidence to establish that the State's conduct unreasonably endangered his physical safety (Saunders v State of New York, UID No. 2007-015-562 [Ct Cl, Collins, J., Aug. 20, 2007]).
Mr. Wright failed to establish, by a preponderance of the credible evidence, his assertions that he was improperly denied a reasonable accommodation in test taking, and that the State violated DOCCS' Directive No. 4805 by not offering him Special Education Services programming.
With respect to the reasonable accommodation, DOCCS' Directive No. 4804 provides that an inmate may request a reasonable accommodation (see Ex. D, part [V][A]). While the record demonstrates that Mr. Wright repeatedly requested extensions of his school waiver, and even filed a grievance when one was denied in 2015, there is no evidence that he ever sought a reasonable accommodation. Moreover, the 2002 recommendation that he be allowed extra time to take tests was merely a suggestion. The record is bereft of any determination, prior to 2016, to grant such accommodation. Claimant did not present any expert testimony to establish that the failure to do so earlier deviated from some pedagogical standard, or constituted an act of negligence. That is not a conclusion that the trier of facts can make on the basis of its own common everyday experience. Finally, and in any event, the decision as to whether or not to grant or deny the school waivers clearly was a determination within the discretion of the DSP for which the State is immune from liability (see Saunders v State of New York, supra; Ex. D, parts II [F], V [A][3]). The State asserted this defense with particularity in its Answer (see Court Ex. 2 [Answer, Fifth Affirmative Defense]).
As for Special Education Services programing, DOCCS' Directive No. 4805 only applies to inmates who are under 21 years of age (see Ex. 4, part II [E]). Mr. Wright was born on February 28, 1958 (see Ex. 2, p. 1). Therefore, he already was too old, and, thus, ineligible for the Special Education Services program, both when he apparently was incarcerated in 1983 (according to his DIN), and at the time his first school waiver was granted in 2001.
Based upon all the foregoing, the Court concludes that Claimant failed to establish his Claim by a preponderance of the credible evidence and the Claim is dismissed.
All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial are now sustained.
The Chief Clerk is directed to enter judgment accordingly.
May 21, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims