Kielly v Colvin
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Kielly v Colvin 2018 NY Slip Op 30730(U) April 25, 2018 Supreme Court, Seneca County Docket Number: 52023 Judge: Dennis F. Bender Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK COUNTY OF SENECA SUPREME COURT SARAKIELLY DIN 12-B-3951 Petitioner - Against JOHN COL VIN SUPERINTENDENT FIVE POINTS CORRECTIONAL FACILITY, DECISION & JUDGMENT Index No. 52023 Respondent Hon. Dennis F. Bender, Acting J.S.C. The Petitioner herein filed a petition for a Writ ofHabeas Corpus in Tompkins County. The matter was transferred to this county due to the Petitioner being housed at Five Points Correctional Facility. The Transfer Order is dated February 9, 2018 but was not received by this Court until April 4, 2018. The Petitioner alleges in her petition that her constitutional rights are being deprived . She alleges she is subject to cruel and unusual punishment and that there have been violations of the equal protection provisions of the 14th Amendment. She alleges she has been consistently and systemically sexually tortured, in part due to her transgender identity. She alleges incidents in Attica from January of2013 to July of2013, incidents in Auburn Correctional Facility from July to October 2013, at Clinton Correctional Facility from October of 2013 to August of2015, at Sing Sing from August of2015 to October of2015 and from July of2016 to August of2016 and at Five Points Correctional Facility from February of2016 to July of2016, as well as from August of2016 to the present. She also alleges incidents at Central New York Psychiatric Center from October of 2015 to February of 2016. She alleges that an appropriate safety plan would be to release her under appropriate monitoring. Prior to transfer, a Verified Answer and Return was submitted by James Shoemaker, Assistant Attorney General from the Binghamton Office of the New York State Attorney General. The Respondent notes that habeas corpus relief is improper because the Petitioner cannot show she is entitled to immediate release from prison. The Petitioner is currently incarcerated due to a Broome County Court conviction and sentence made on December 14, 2012 for Murder in the 1'' [* 2] Degree and she was sentenced to a term of incarceration of 25 years to Life. The Court concurs that the Petitioner cannot show her immediate entitlement to release and accordingly, the petition for writ relief is not appropriate. There is also no point in converting this matter to an Article 78 proceeding, as the Respondent has raised the defense of the statute of limitations, People ex rel Catapano v Smith. 143 AD 2"d 538 (4'h Dept, 1988). The petition is dated September 28, 2017 and was apparently filed in Tompkins County on October 4, 2017. All allegations pertaining to incidents before June 4, 2017, are time-barred. Allegations as to purported wrongdoing by Five Points Correctional Facility personnel after that date "to present" are insufficiently pied. There are no particulars provided regarding complaints made or grievances filed, and whether there was an exhaustion of administrative remedies. It is further noted that allegations of sexual harassment and/or abuse while at Five Points that the Petitioner did properly grieve are addressed in the Return submitted by the Respondent and were deemed unfounded. The Petitioner argues she is subject to severe restrictions due to placement in "protective custody", with negligible time out of her cell, minimal interaction with others and no access to programming. She submits this is detrimental to her mental health and safety, as she has been diagnosed with severe mental illness. To constitute cruel and inhuman treatment, the Petitioner would need to allege and prove that the Respondent's actions or omissions amount to a "deliberate indifference to a serious medical need''. People v Duncan. 306 AD 2d 716(3d Dept., 2003); Outman v Annucci, 49 Misc. 3d 1129(Albany County Supreme Court, 2015). The Petitioner has failed to make such a showing, and the Respondent has shown her current placement at Five Points was carefully considered and the Respondent submits the facility can meet her medical and psychiatric needs. (Effman affidavit, Answer and Return, Ex. S) The petition is in all respects denied and dismissed. ___../ DATED: April;?), 2018
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