New York State Court of Claims

New York State Court of Claims

CAMPOLITO V. THE STATE OF NEW YORK, #2000-015-507, Claim No. 94670


A breach of an inmate's legal mail rights under 7 NYCRR 721.3 does not give rise to a cause of action for money damages in the Court of Claims.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Anthony M. Campolito, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Timothy P. Mulvey, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 27, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

Pursuant to a claim filed on September 4, 1996, the claimant, an inmate appearing pro se, seeks to recover money damages for personal injuries allegedly sustained during August of 1996 when Senior Parole Officer George Chard improperly accessed his legal mail at the package room of Marcy Correctional Facility.

Claimant testified that he received legal mail from the New York State Division of Parole at Marcy Correctional Facility during the summer of 1996 which included a video cassette tape recording of claimant's February 29, 1996 final parole revocation hearing. It was arranged that the tape recording would be secured in the package room and released to claimant's attorney on August 10, 1996. When claimant's counsel arrived at the package room to receive the videotape it could not be located. Claimant testified that he had a habeas corpus application pending at the time that the videotape was lost and that the application was denied because the videotape was not available for use by the court. Claimant stated that approximately three weeks after his attorney was supposed to have picked up the videotape it was discovered that Parole Officer George Chard had the tape and was reviewing it. Claimant stated that this use of the tape constituted an improper interruption with his outgoing legal mail. Claimant stated that he is seeking $7,000,000 in damages, including punitive damages. Defendant submitted into evidence Exhibit A which is a letter from the principal law clerk of the Supreme Court Justice handling the habeas corpus proceeding which letter communicated that the Justice annulled the February 29, 1996 final parole revocation hearing pursuant to claimant's article 78 petition and had remanded the matter with a direction to hold a new hearing within forty-five days of the entry of the order. The letter stated that the new parole hearing had been held on December 16, 1996 and that since there was no showing that the claimant was being illegally detained his request for a writ of habeas corpus and for poor person status was denied.

Exhibit A satisfies the Court that claimant's inability to use the tape recording in support of his habeas corpus proceeding did not influence the outcome of that proceeding. There remains the question of whether claimant has set forth any legal basis to support a recovery of money damages. The claim refers to the "negligence of the State for allowing willfully malicious acts of illegal intent constituting deliberate violations of the FIRST, SIXTH AND FOURTEENTH Amendment of the
United States Constitution, as well as Title 9 New York Code rules [sic] and Regulations (NYCRR)" by various State employees. The allegations of the claim and the claimant's trial testimony establish that he is seeking to recover for intentional conduct on the part of Senior Parole Officer George Chard. Therefore, the claim cannot sound in negligence since "allegations of intentional conduct cannot form the basis of a claim founded in negligence" (Dunn v Brown, 261 AD2d 432, 433).
Claimant's attempt to recover for alleged violations of his rights under the First, Sixth and Fourteenth Amendments of the Federal Constitution seek relief beyond the subject matter jurisdiction of this Court. A claim for money damages premised upon a violation of a person's rights under a provision of the Federal Constitution must be pursued pursuant to 42 USC § 1983 and such a claim may not be pursued against the State of New York in the Court of Claims (
Zagarella v State of New York, 149 AD2d 503; Gittens v State of New York, 132 Misc 2d 399).
Both the claim and the memorandum of law annexed to the claim contain references to a violation of title 9 of the New York Codes Rules and Regulations (NYCRR). While part 7004 of 9 NYCRR does contain regulations of the State Commission of Correction concerning an inmate's legal mail, those regulations are directed at county jails, not State correctional facilities (
see, McNulty v Chinlund, 89 Misc 2d 713, modified 62 AD2d 682). Consequently, since the regulations cited by claimant have no application to State correctional facilities they are not relevant to this action to recover money damages in this Court.
7 NYCRR part 721 governs the conduct of employees of the Department of Correctional Services in handling an inmate's legal mail and upon this record claimant has demonstrated a facial violation of 7 NYCRR 721.3(2). However, the mere violation of a regulation does not necessarily give rise to a private cause of action for money damages. In fact, the breach of a regulation of the Department of Correctional Services resulting in the invasion of an inmate's right of privacy will not give rise to a private civil remedy when there are already in place other remedies to protect the inmate's rights (
Lawrence v State of New York, 180 Misc 2d 337; see also Ruotolo v State of New York, 141 Misc 2d 111, affd 157 AD2d 452 and Pharr v Cortese, 147 Misc 2d 1078). Here, claimant had an article 78 review as well as the inmate grievance process available to prevent the unauthorized opening of his privileged mail (Matter of McKenna v Goord, 245 AD2d 1074) and in view of those protections the Court can find no basis for transforming a violation of 7 NYCRR part 721 into a private cause of action for money damages.
The Clerk is directed to enter a judgment dismissing the claim.

April 27, 2000
Saratoga Springs, New York

Judge of the Court of Claims