New York State Court of Claims

New York State Court of Claims

WORTH v. STATE OF NEW YORK, #2001-005-544, Claim No. 104797, Motion No. M-64115


Defendant's motion for dismissal of the claim for failure to state a cause of action is granted.

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:
Kenny Worth,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 27, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On November 14, 2001, the following papers, numbered 1 to 4, were read on motion by Defendant for an order dismissing the claim:

1, 2 Notice of Motion, Affirmation and Exhibit Annexed
  1. Answer to Defendant's Affirmation
  2. Filed Papers: Claim
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 herein.

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 [1996]). . . . 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.

November 27, 2001
Rochester, New York

Judge of the Court of Claims