Upon the foregoing papers, this motion is granted.
The Defendant seeks to dismiss this claim for the failure to state a cause of
action (CPLR 3211[a]7). The claim, filed on August 27, 2001, addresses a
situation wherein Claimant was sent to the infirmary at the Cayuga Correctional
Facility (Cayuga) on June 22, 2001, and then went to the Upstate Medical
Hospital to have a cast removed from his ankle. Upon the return to Cayuga,
Claimant alleges that "he was to stay back in the infirmary . . . and [was]
given instructions from the doctor not to apply to much pressure on his ankle. .
Thus Claimant believes he should have been sent back to the infirmary, but
alleges that instead he was forced to house in the Special Housing Unit (SHU)
rather than the infirmary, and that from June 22, 2001 to June 25, 2001, for
some three days, he was placed in the SHU block at Cayuga. He contends that
this constituted cruel and unusual punishment, and forms the basis of the claim
He alleges no injury, although he suggests that he felt pain in his ankle, and
could not see a nurse or doctor until it was time for sick-call. He contends in
Paragraph 11 that the Department of Correctional Services was neglectful "by not
having the claimant under observation where he would not hurt himself while
housed in special housing unit." While I understand the nature of Claimant's
complaint, his theory is speculative, particularly as he does not even allege
that he became hurt, or injured or sustained any pain or discomfort merely as a
result of his alleged temporary placement in SHU. In other words he alleges no
compensable injury, and as such he fails to state a cause of action.
In his opposing papers, Claimant seems to acknowledge the Defendant's argument
that the Court of Claims is not the proper forum for a federal civil rights
claim, and to the extent that Claimant alleges a cause of action under the
federal constitution, whether premised upon 42 USC §1983 or §1981,
this court has no jurisdiction over such allegations (see, Zagarella v State
of New York, 149 AD2d 503). The claim only alleges that Claimant was housed
in the SHU block, but it does not allege any deprivation other than what appears
to be the "stigma" in being placed in SHU, without being the subject of any
disciplinary proceeding. In the absence of any alleged violation of Claimant's
due process rights, there was no allegation of the imposition of disciplinary
action against the Claimant, and nothing but what appears to be a three day
temporary assignment in the SHU Block.
With respect to allegations of cruel and unusual punishment, case law suggests
that no constitutional remedy exists when Claimant's "constitutional tort
allegations may be analogized to an existing common-law tort[s] for which there
are adequate alternate remedies" (Augat v State of New York, 244 AD2d
835, 837, lv denied 91 NY2d 814; see also, Remley v State of
New York, 174 Misc 2d 523). Here the injuries alleged could be redressed by
a common law cause of action sounding in negligence (Remley, id.).
Claimant alleges no cause of action that is not otherwise cognizable under the
common law, and as such no viable allegation under the State Constitution may
survive (Brown v State of New York, 89 NY2d 172; Remley v State of New
York, supra). Furthermore the Court of Appeals has just ruled, in a
decision dated November 19, 2001, in Martinez v City of Schenectady, et
al., there is a:
‘narrow remedy' established in Brown v State of New York (89 NY2d
172, 192 ). . . . As we noted in Brown, implying a damage remedy
was . . . ‘necessary and appropriate...' [and] that citizens harmed by
constitutional violations have an avenue of redress, and the public interest
that future violations be deterred. In Brown ... [f]or those plaintiffs
it was damages or nothing. We made clear, however, that the tort remedy is not
boundless. Claimants must establish grounds that entitle them to a damages
remedy ... Recognition of a constitutional tort claim here is neither necessary
to effectuate the purposes of the State constitutional protections plaintiff
invokes, nor appropriate to ensure full realization of her rights. . . .
Moreover, plaintiff fails to demonstrate how money damages are appropriate to
ensure full realization of her asserted constitutional rights.
The instant claim is similar in all pertinent respects. Accordingly the motion
is granted and the claim is dismissed.