New York State Court of Claims

New York State Court of Claims

McCLOUD v. THE STATE OF NEW YORK, #2001-001-026, Claim No. 103795, Motion Nos. M-63185, CM-63244


Synopsis



Case Information

UID:
2001-001-026
Claimant(s):
MICHAEL McCLOUD
Claimant short name:
McCLOUD
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103795
Motion number(s):
M-63185
Cross-motion number(s):
CM-63244
Judge:
Susan Phillips Read
Claimant's attorney:
Michael McCloud, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Belinda A. Wagner, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
June 6, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on claimant's motion seeking to dismiss defendant's affirmative defenses stated in its answer pursuant to CPLR 3211 (b) and defendant's cross-motion to dismiss the claim: Notice of Motion to Strike Defendant's Affirmative Defenses, dated March 2 and filed March 8, 2001; Verified Motion to Strike Defendant's Affirmative Defenses, sworn to March 2 and filed March 8, 2001; Notice of Cross-Motion to Dismiss, dated March 14 and filed March 16, 2001; Affirmation in Opposition to Claimant's Motion to Strike and in Support of Defendant's Motion to Dismiss of Belinda A. Wagner, Esq., AAG, dated March 14 and filed March 16, 2001, with annexed Exhibits A-B; Affidavit in Reply to Defendant's Cross-Motion to Dismiss of Michael McCloud, pro se, sworn to March 19 and filed March 21, 2001, with annexed Exhibit A; Reply Affirmation of Belinda A. Wagner, Esq., AAG, dated March 26 and filed March 28, 2001, with annexed Exhibit A; the claim, dated January 23 and filed February 8, 2001; and the Verified Answer, dated February 26 and filed February 28, 2001.[1]

Claimant Michael McCloud ("claimant"), an inmate proceeding pro se, filed this action on February 8, 2001 "for violations of claimant's New York State and United States Constitutional rights to free and unrestricted access to pursue civil action(s), timely and diligently to the Court(s) against Brenda J. Thomas ("Thomas")" (claim, dated January 23 and filed February 8, 2001 ["claim"], ¶ 4). Claimant alleges that he has a lawsuit pending against Thomas, a former girlfriend, in Federal court and intends to file another action against her for "making further false and fabricated allegations against claimant between the periods December 7, 2000 to December 12, 2000" (claim, ¶ 5, at 2-3).

Evidently, Thomas is listed on the Department of Correctional Services ("DOCS")'s negative correspondence list (see, 7 NYCRR 720.3 [a]). Consequently, claimant is not allowed to contact her by mail (Affidavit of Michael McCloud, pro se, in Reply to Defendant's Cross- Motion to Dismiss, sworn to March 19 and filed March 21, 2001, Exh. A). Claimant alleges that Thomas is proceeding pro se in the Federal matter, and appears to contend that DOCS is violating his Federal and New York State constitutional rights by "arbitrarily and capriciously" interfering with his ability to pursue his civil action against her by preventing him from sending her papers (claim, ¶ 5).[2]

Accordingly, claimant seeks: (a) $500.00 for the restriction of his ability to pursue civil action against Thomas; (b) an order or judgment prohibiting Thomas from "using defendant's employees as a vehicle to stop claimant from pursuing lawful civil action against her;" and (c) an order or judgment expunging negative statements from his records created by Thomas and DOCS employees (claim, RELIEF SOUGHT, at 6).

In its answer, defendant State of New York ("defendant' or "the State") alleges the following affirmative defenses: (1) the Court lacks subject matter jurisdiction over the Federal constitutional claim; (2) the Court lacks subject matter jurisdiction over the State constitutional claim because the claim does not allege a recognized constitutional right pursuant to Brown v State of New York (89 NY2d 172); (3) the Court lacks powers in equity precluding the relief sought by claimant in paragraphs (b) or (c); (4-5) comparative negligence based defenses; and (6) the claim fails to state a cause of action against the State (Verified Answer, dated February 26 and filed February 28, 2001).

Claimant subsequently moved to dismiss all six of defendant's affirmative defenses (Motion to Strike Defenses) and defendant cross-moved to dismiss the claim based on its first, second, third, fifth, and sixth affirmative defenses (Affirmation in Opposition to Claimant's Motion to Strike and in Support of Defendant's Motion to Dismiss of Belinda A. Wagner, Esq., AAG, dated March 14 and filed March 16, 2001). Because the State's motion to dismiss the claim is dispositive, the Court reaches it first.

Claimant objects to his inability to send Thomas legal papers because she has been placed on his negative correspondence list. The applicable DOCS regulation provides that "[t]he negative correspondence and telephone list shall contain the name of any person or business that has indicated, in any manner, that further correspondence from the inmate is not desired. . . . No inmate shall continue to submit mail to be sent to a person or business which currently appears on the inmate's negative correspondence list. Any inmate who continues to submit mail to such a person or business may be subject to disciplinary action and/or monitoring of outgoing mail for a specified period of time" (7 NYCRR 720.3 [1], [3]).

Claimant's allegations regarding violations of the Federal constitution are not cognizable in the Court of Claims (see, Ferrer v State of New York, 172 Misc 2d 1, 5; Gill v State of New York, Ct Cl, Mignano, J., Jan. 10, 2001, # 2001-029-042).[3] Rather, claimant's remedy for this portion of his action lies in a different venue by way of an action premised upon 42 USC § 1983 (see, Zagarella v State of New York, 149 AD2d 503; Davis v State of New York, 124 AD2d 420; Matter of Thomas v New York Temporary State Commn. on Regulation of Lobbying, 83 AD2d 723, affd 56 NY2d 656; Gill v State of New York, supra). Accordingly, the Court dismisses as much of the claim as was premised upon alleged violations of the Federal Constitution.

Claimant also alleges violations of the New York State Constitution. Although the Court of Appeals has recognized a cause of action for constitutional tort in Brown v State of New York (89 NY2d 172, supra), the Court, relying in part on the reasoning of section 874 A of the Restatement (Second) of Torts and Bivens v Six Unknown Fed. Narcotic Agents (403 US 388), determined that such a remedy is not available for every alleged violation of the State Constitution. Rather, such a "narrow remedy" (id., at 192) may be implied if needed to ensure the particular constitutional provision's effectiveness and further its purpose (id., at 187). Here, claimant may protect his right to pursue his civil action against Thomas administratively and/or by way of a CPLR article 78 proceeding.

The gravamen of claimant's action is the deleterious effect the DOCS negative mailing list is having on his ability to maintain an action against Thomas. Claimant, however, does not allege that he has yet administratively challenged this policy through an inmate grievance procedure, although he clearly could avail himself of this remedy (see, 7 NYCRR 701, et seq.). Nor does it appear that he has sought CPLR article 78 review of any adverse administrative determination (see, Matter of Cardew v Goord, 269 AD2d 708 [petitioner prohibited from sending mail to individuals against whom he was pursuing a legal action sought review of administrative determination. Petition was moot since DOCS Central Office Review Committee had amended the determination and allowed mailings because there was a legal action pending between the parties]).

The availability of this administrative remedy, and CPLR article 78 review if necessary, provides claimant with an adequate, and more appropriate, remedy for the primarily injunctive relief that he seeks.[4] The availability of these remedies also eliminates the need to imply a cause of action for constitutional tort in this case (see, Moates v State of New York, Ct Cl, Fitzpatrick, J., Sept. 25, 2000, # 2000-018-044; Cook v State of New York, Ct Cl, unreported decision filed Jan. 20, 2000, Nadel, J., Claim No. 96062).

Based on the foregoing, the Court grants defendant's cross-motion to dismiss the claim. As a result, the issues raised by claimant's motion to dismiss defendant's affirmative defenses are moot, and the Court need not and does not reach them.


June 6, 2001
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1] The Affidavit of Michael McCloud, pro se, in Reply to Defendant's Reply Affirmation, sworn to March 28 and filed March 30, 2001 was filed after the return date assigned to these motions of March 28, 2001.
[2] Claimant cites Bounds v Smith (430 US 817) to support this proposition (Verified Motion to Strike Defendant's Affirmative Defenses, sworn to March 2 and filed March 8, 2001 ["Motion to Strike Defenses"], ¶ 2) (see also, Matter of Love v Lord, 167 AD2d 468).

[3] This and many other decisions of the New York State Court of Claims can be found on its website at http://court.acmenet.net/MacLaw.

[4] Claimant's request for $500.00 in damages for the restriction of his mailing rights appears to be incidental to the primary injunctive relief he seeks of (1) prohibiting Thomas from using the negative mailing list; and (2) expunging all negative statements relating to Thomas from his prison records (claim, RELIEF SOUGHT). The Court does not have jurisdiction to provide this type of equitable relief (see, Court of Claims Act § 9; see also, 29 NY Jur 2d, Courts and Judges, § 753, at 273-275).