Upon the foregoing papers, this motion is granted and the claim is
Defendant, in lieu of an answer, moves for dismissal on the ground that
Claimant asserts no cause of action for which relief may be granted. On or
about September 14, 2000, Claimant, a self-reported nonsmoker, was incarcerated
in a double-bunk cell with a smoking inmate at Auburn Correctional Facility.
Claimant asserts that the State is liable for abridging its duty to conduct a
physical assessment of Claimant before or within 48 hours of assigning him to
that cell and that incarceration in that cell constituted a cruel and unusual
punishment, putatively violating New York State Constitution article I, §5.
Consequently, Claimant alleges that he sustained pain, suffering, and mental
distress. Claimant's allegations, however, are insufficient to create a cause
of action for compensatory damages and must be dismissed.
Claimant fails to state a cause of action for which relief may be granted under
CPLR 3211. The State of New York does not have a duty to provide inmates of a
correctional facility with a smoke-free environment (see Rawlings v
State of New York, McNamara, J., April 13, 1999, Claim No. 96967). As an
inmate, Claimant's rights with respect to restrictions on smoking in prisons are
limited under article 13-E of the Public Health Law ("The Indoor Clean Air
Act"). In addition, in Shepherd v State of New York (July 19, 2000,
Claim No. 97504, Motion No. M-60869), I held that Defendant's alleged failure to
properly screen non-smoking inmates, pursuant to double-cell housing
regulations, did not necessarily create a cause of action sounding in
negligence. 7 NYCRR § 1701, et seq., sets forth protocols for the
management of double-cell housing. Indeed, §1701.5(c)(6)(ii) recites
[E]ither prior to or within 48 hours after an inmate's placement in a
double-cell, a physical assessment will be conducted. If facility health staff
determine that a change in the inmate's current housing is required, that
information shall be conveyed to the deputy superintendent of security or
designee and the appropriate change in housing shall be made.
In addition, § 1701.5(d)(10) provides, in part, that:
[A] nonsmoking inmate that facility health staff determines should only be
housed in a cell with a nonsmoker in accordance with paragraph (c)(6) of this
section shall not be housed in a cell with a smoker...Upon assignment of a
nonsmoker to a double-cell with a smoker or upon the reverse scenario, the
nonsmoker may submit a written request to the deputy superintendent of security
to be housed in a cell with another nonsmoker. Upon receipt of such request, the
deputy superintendent of security will cause the move of either the smoking
inmate or the nonsmoking inmate to an alternative double-cell within seven
These, however, are strictly regulations that have not been codified as law.
That is to say that regulations may serve as guideposts for establishing a
standard of care and "violation of the standard may lead to liability [only] if
a common law or statutory duty is breached" (Richardson v State of New
York, McNamara, J., March 31, 1999, Claim No.96567). Hence, even with proof
that Defendant may have disregarded the regulations provided by 7 NYCRR §
1701 et seq., a corresponding cause of action for compensatory damages is
not implied. Moreover, Public Health Law §1399-w limits liability and
causes of action for noncompliance with a smoking ban.
Also, Claimant does not allege a medical condition that would preclude him from
double-bunking or any physical harm that resulted from the unspecified period of
time he spent with the smoking cell-mate. Nor does Claimant allege that he
requested either a medical exam or a transfer to a cell with a nonsmoking
inmate. Such sparse and insubstantial pleadings coupled only with allegations
of insignificant regulatory violations (as opposed to violations of statute or
common law) are insufficient to create a cause of action upon which compensatory
relief may be granted.
Likewise, Claimant's allegation of a cruel and unusual punishment under New
York State Constitution article I, § 5, is inadequate. Again, violation of
"regulations, unlike statutes, cannot impliedly create a cause of action"
(Rawlings, supra, at 2). Claimant's cause of action sounding in
cruel and usual punishment further fails, as it is distinguishable from De La
Rosa v State of New York (173 Misc 2d 1007). De La Rosa applies the
benchmarks established by Brown v State of New York (89 NY2d 172) and
postulates that a person could bring a constitutional tort cause of action in
the Court of Claims if Claimant's allegations assert a violation of article I,
§ 5 of the New York State Constitution so long as, among other
...a money damage remedy . . . further[s] the purpose of the underlying
constitutional provision and [is] necessary to assure its effectiveness; the
provision [is] such as to impose a clearly defined duty on State officers and
employees [, and] declaratory and injunctive relief [is] inadequate and money
damages necessary to deter governmental misconduct and to make the claimant
whole (De La Rosa, supra, at 1009).
There is no established statutory or common law duty upon which Claimant may
rely, and his allegations, accordingly, fail to state a valid cause of action
for compensatory damages.
Thus, absent a statutory or common law duty to provide inmates with a
smoke-free environment, Defendant's motion is granted, and the claim is