Pro se inmate claimants allege that the State's employees engaged in sexual harassment of them at two correctional facilities where they were incarcerated. In lieu of answering the claim, the State moves to dismiss the claim. The State's motion is granted as New York does not recognize a common law cause of action for harassment. Claimants additional causes of action alleging intentional acts and negligent hiring, training and retention are also dismissed.
|Claimant short name:||MOORE|
|Footnote (claimant name) :||The Court has sua sponte amended the caption to reflect a fictitious name for claimants pursuant to Civil Rights Law §50-b|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||R.O.M., Pro Se
K.A.H., III, Pro Se
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Carlton K. Brownell, III, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 21, 2019|
|See also (multicaptioned case)|
Claimants R.O.M. and K.A.H. III, inmates proceeding pro se, allege in claim no. 132272 that defendant's employees willfully engaged in sexual harassment at Lakeview Shock Correctional Facility (Lakeview) and at Moriah Correctional Facility (Moriah). In lieu of answering the claim, defendant moves to dismiss claim no. 132272. Neither claimant appeared or otherwise opposed the motion.(2)
Initially, defendant moves to dismiss the claim insofar as the claimants are attempting to pursue the claim as a class action, allegedly on behalf of 600 unnamed "similarly situated individuals." To date, the claimants have failed to move pursuant to CPLR 901 and 902 for permission to maintain a class action. In addition, class actions brought in the Court of Claims must satisfy all of the jurisdictional requirements of the Court of Claims Act and each member must be a named claimant in a filed claim (Weaver v State of New York, 82 AD3d 878 [2d Dept 2011], lv dismissed 17 NY3d 778 ). Here, claimants have failed to name any other member of a prospective class and there is no evidence that any unnamed class member filed either a notice of intention to file a claim or a claim. Further, while either of the two named claimants may represent himself pro se, neither may represent another inmate without violating the proscription against the practice of law by nonlawyers (People v Rodriguez, 129 AD2d 594 [2d Dept 1987]). Accordingly, that portion of the claim that references a class action is dismissed. Henceforth, any reference to "claimants" shall refer to the two named claimants only.
Defendant asserts that the gravamen of the claim alleges intentional acts by unnamed correction officers at Lakeview and Moriah who, according to the claim, ordered claimants to strip prior to entering the facility's "congregate shower" and subjected the claimants to derogatory comments in violation of Directive 4944 and Directive 4028A, presumably the "Staff Voyeurism" definition section of the later directive. Whether pleaded as voyeurism or harassment, however, the State of New York does not recognize a common-law cause of action for harassment (Monreal v New York State Dept. of Health, 38 AD3d 1118 [3d Dept 2007]). Further, Directive 4944 addresses the use of bodily force. Other than a vague reference to physical assaults in paragraph 2 of the claim, which apparently relate to a member of the dismissed class, there is no allegation that either of the named claimants was assaulted and no allegation of any physical conduct placing either claimant in imminent apprehension of harmful contact (Marilyn S. v Independent Group Home Living Living Program, Inc., 73 AD3d 895 [2d Dept 2010]). Liberally construed, the claim does not allege an assault. Rather, the claim appears to be a challenge to certain DOCCS administrative directives. Challenges to an administrative action are to be brought by special proceeding pursuant to CPLR Article 78, albeit in another Court (Citronnelle v State of New York, UID No. 2013-048-523[Ct Cl, Bruening, J., March 21, 2013]).
Defendant argues that claimants' allegations of intentional acts by unnamed correction officers must be dismissed as they were untimely filed and served. Pursuant to Court of Claims Act § 10 (3-b), a claim for injuries caused by an intentional act of an officer or employee of the state must be filed and served upon the Attorney General within ninety (90) days of accrual unless the claimant shall within the same ninety (90) day period serve upon the Attorney General a notice of intention to file a claim, in which event the claim shall be filed and served within one year after accrual of the claim. According to the claim, the acts complained of occurred between June 29, 2017 and September 14, 2017 and between February 17, 2017 and October 3, 2017, when the claimants were housed at Lakeview.(3) At a later point in the claim, however, claimants indicate that the acts complained of extended until October 23, 2017, although there is no indication as to how the date of October 23, 2017 has any relevance as neither claimant was apparently at Lakeview beyond October 3, 2017. Even if the date of October 23, 2017 is utilized as the latest possible accrual date for this claim, claimants had ninety days or until January 22, 2018 within which to file and serve a notice of intention to file a claim or a claim.
Defendant admits that a notice of intention to file a claim was served by certified mail upon the Office of the Attorney General on November 20, 2017, within ninety (90) days of accrual of the claim. The named claimants then had until October 23, 2018, one year from the latest possible date of accrual of the claim, within which to file and serve the claim. The claim was filed on November 15, 2018 and served upon the Office of the Attorney General on November 19, 2018 (see Defendant's Exhibit B). The failure to file and serve a claim within the statutorily prescribed period divests the Court of jurisdiction compelling dismissal of the claim (Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]).
Claimants further allege in the claim that they are making a claim for negligence and recklessness of the State of New York in its hiring, training and retention of its officers. A cause of action for negligent hiring, training, supervision or retention will not lie when the employee or employees are acting within the scope of their employment (Passucci v Home Depot, Inc., 67 AD3d 1470 [4th Dept 2009]). Where, as here, the State through its attorney (see ¶ 16 of the supporting affirmation of Assistant Attorney General Carlton K. Brownell, III) has conceded that the correction officer or officers alluded to in the claim were acting within the scope of their employment by the State, a cause of action for negligent hiring, training and/or retention cannot be maintained and must be dismissed (Graham v State of New York, UID No.: 2009-030-520 [Ct Cl, Scuccimarra, J., March 24, 2009]). Further, there is no allegation in the claim that any correction officer was acting outside the scope of his employment and no allegations that the State knew prior to hiring and/or during employment, that any particular correction officer had a propensity to commit any specific unlawful conduct, and no allegation of a specific deficiency in the training of any particular correction officer. Mere conclusory allegations of negligent hiring, training and retention of unknown correction officers in general is simply insufficient to state a viable claim (J.D. v State of New York, 63 Misc3d 1216(A) [Feb. 7, 2019]).
Based on the foregoing, defendant's motion no. M-93345 is granted and claim no. 132272 is dismissed.
August 21, 2019
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered with respect by the Court:
1. Notice of motion and affirmation of Assistant Attorney General Carlton K. Brownell, III dated December 18, 2018, with annexed Exhibits A-C.
2. Defendant originally served both named claimants at Hudson Correctional Facility (Hudson). At approximately the same time, claimant R.O.M. listed with the Court an address in Troy, New York. To ensure that both claimants received defendant's motion, the Court adjourned the return date of the motion and instructed defendant's counsel to re-serve its motion on K.A.H., III at Hudson and on R.O.M. at Hudson and at the Troy, New York address listed with the Court.
3. It is unclear from the claim which of the named claimants was housed at Lakeview during which period of time. The claim also generally refers to Moriah as well as Lakeview, but nothing in the claim indicates that either of the named claimants was ever incarcerated at Moriah.