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
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,
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,
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 , ).
Claimant's allegations regarding violations of the Federal constitution are not
cognizable in the Court of Claims (see
, Ferrer v State of New
, 172 Misc 2d 1, 5; Gill v State of New York
, Ct Cl, Mignano, J.,
Jan. 10, 2001, # 2001-029-042).
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
, 83 AD2d 723, affd
56 NY2d 656; Gill v State of New
). 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.
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
, 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