New York State Court of Claims

New York State Court of Claims

GAGNE v. THE STATE OF NEW YORK, #2001-013-029, Claim No. 98686, Motion No. M-63259


Claimant's allegations that he was denied meaningful access to the courts because the law library did not possess a current copy of court rules and that the actions of prison officials constituted intentional infliction of mental distress do not states causes of action cognizable in this Court.

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:
Defendant's attorney:
Attorney General of the State of New York
BY: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 30, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On August 15, 2001, the following papers were read on Defendant's motion for summary judgment dismissing the claim.
1. Notice of Motion and Supporting Affirmation of Paul Volcy ("Volcy Affirmation"), with Annexed Exhibits

2. Affidavit in Opposition of Stephen Gagne, pro se ("Gagne Affidavit"), with Annexed Exhibits

3. Claimant's Memorandum of Law ("Gagne Memorandum"), with Annexed Exhibits

4. Reply Affidavit of Paul Volcy ("Volcy Reply Affidavit")

5. Filed Papers: Claim; Answer; Amended Claim; Amended Answer

The original claim in this action alleges that State employees at Wende Correctional Facility (Wende) deprived Claimant of meaningful access to the courts in the following sequence of events. In a decision issued by the Hon. Donald J. Corbett, Jr., issued July 29, 1997, Claimant was awarded partial summary judgment in his favor in Claim No. 91472 (Volcy Affirmation, Exhibit F). That claim sought money damages in compensation for property loss and wrongful confinement. Claimant was awarded the sum of $1,800.00 (of $15.00 per day for 120 days) on the wrongful confinement cause of action, and the sum of $648.04 on the bailment cause of action, but no award was made for his claim for the hourly cost of the preparation of legal research. Protesting this last ruling, Claimant filed a notice of appeal with the Appellate Division, Fourth Department, on September 17, 1997 (Gagne Memorandum, Exhibit C).[1]

Claimant alleges that he filed the notice of appeal in accordance with "the applicable Court Rules of the Fourth Department retrieved from the Facility Law Library" (Claim, ¶5). His submission, captioned "Notice of Motion to Appeal Judgment" (Gagne Memorandum, Exhibit C), was returned on September 18, 1997, with a letter stating that the papers could not be accepted because they failed to comply with three rules of the Appellate Division, Fourth Department.[2] These rules had been amended on March 1, 1997, and a printed copy of them became available in February 1997 (Volcy Affirmation, Exhibit H). For the purposes of this motion, I will accept that the earlier version of the rules differed in some material respects, so that the papers submitted by Claimant would have complied with the earlier rules but failed to comply with the revised version.

Upon receipt of the rejection notice, Claimant went to the law library on September 22 and 23 to request a copy of the current rules. He was told that the library did not have a copy of the revised rules, but that the law library supervisor would order them. This was done in a letter dated September 22, 1997, in which the supervisor stated that "[s]everal inmates have requested" the rules in question, but that the law library "has been unable to provide inasmuch as all material/books we have do not contain such Rules" (Gagne Memorandum, Exhibit D). A copy of the revised rules was received and provided to Claimant on September 29th.[3] Claimant then moved for an extension of time to take an appeal, which was denied on the ground that "Claimant has failed to establish that the notice of appeal was timely filed or served" (Gagne Memorandum, Exhibit F). The Fourth Department's decision was issued December 5, 1997. Claimant asserts that he never received a copy of that decision until one was supplied to him in June 1998 in response to a letter from him requesting information from the court. Claimant then moved unsuccessfully for permission to appeal to the Court of Appeals, which was denied on the ground of non-finality (id., Exhibit L). The instant claim was commenced in July 1998.

In January 1999, Claimant successfully moved to amend his claim to include allegations that in November 1998 a correction officer at Wende began a campaign of harassment and threats in retaliation for Claimant's having brought suit "against" the law library. Claimant states that other inmates considered him to be a "rat" and to have "snitched" on those inmates who worked at the law library.

Defendant now moves for summary judgment dismissing the claim on the following grounds: that the claim is untimely, that the alleged harassment does not rise to the level of intentional infliction of emotional distress; and that the inability to access court rules, which defense counsel characterizes as lasting "over a few days," does not meet the criteria for denial of reasonable access to the courts.

Timeliness of Claim: In its original answer, Defendant raised untimeliness as its fourth affirmative defense. It is questionable whether the wording of that defense satisfied the requirement of Court of Claims Act §11(c) that such a defense be raised "with particularity."[4] In any event, however, Defendant has waived the right to assert that defense, since it was not included in the amended answer filed in July 1999 in response to the amended claim.

Defendant has requested, in connection with this motion, to be allowed to amend the amended answer so as to reassert the defense. While, as a general proposition, leave to amend a pleading is to be freely given (CPLR 3025[b]), "the language in section 11(c) prohibiting dismissal of the claim once an untimeliness defense has been waived is clear [and t]he State's right to amend its answer cannot overcome a waiver that has already been effected" (Adebambo v State of New York, 181 Misc 2d 181, 184; Knight v State of New York, 177 Misc 2d 181). When Defendant omitted the timeliness defense in its amended answer, the defense was waived.

Harassment/Infliction of Emotional Distress: Because Claimant does not allege any specific, concrete injury resulting from the correction officer's alleged course of conduct in speaking disparagingly to other inmates about Claimant's actions in bringing this lawsuit,[5] the only way in which to characterize the cause of action is, as defense counsel asserts, one for the intentional infliction of emotional distress. Whether or not the actions are serious and harmful enough to support such a cause of action, it must fail for other reasons. In performing acts that constitute official conduct, public policy prohibits an action against the State for intentional infliction of emotional distress (Brown v State of New York, 125 AD2d 750, lv to appeal dismissed 70 NY2d 747 [wrongful termination, sexual harassment, failure to stop harassment]; Wheeler v State of New York, 104 AD2d 496; DeLesline v State of New York, 91 AD2d 785, lv denied 58 NY2d 610).

Denial of Access to Courts: Defense counsel asserts that, even if they were proven, Claimant's allegations would not constitute denial of access to the courts, for he would not have established that the assistance of the law library was so "woefully inadequate as to constitute no assistance at all... [or] that no reasonable alternative exist[ed] to assist inmates in the preparation of any appeals or proceedings" (Volcy Affirmation, ¶20, quoting Matter of Graziano v Coughlin, 221 AD2d 684). Claimant agrees that is the applicable standard, but asserts that issues of material fact remain as to whether the action complained of meets the standard (Gagne Affidavit, ¶7).

Again, Claimant has alleged a cause of action over which this Court does not have jurisdiction. A cause of action for denial of access to the courts is based upon a violation of the Federal Constitution and must be pursued pursuant to 42 USC §1983 (Washington v James, 782 F2d 1134 [2nd Cir 1986]; Breazil v Bennett, 1999 WL 603851 [WDNY]). No cause of action against the State of New York exists for alleged violations of an individual's rights under the United States Constitution (Davis v State of New York, 124 AD2d 420; Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 83AD2d 723, affd 56 NY2d 656), nor is the State a "person" amenable to suit under 42 USC §1983 (Will v Michigan Dept. of State Police, 491 US 58). In fact, Claimant brought suit under 42 USC §1983 in Federal District Court for the Western District of New York, alleging the same facts as he has alleged here, and that claim was dismissed for failure to state a viable cause of action, inasmuch as the deprivation which he alleged did not rise to the level of unconstitutional interference with access to the court (Gagne v Botta, 99-CV-0108E[Sc], Larimer, C.J., March 22, 1999 [Gagne Affidavit, Exhibit 1]).

If I were to entertain this action, that result would control. But there is a more fundamental problem with the claim. As the Fourth Department has stated, prison and jail inmates do not have an abstract, free-standing right to a law library or legal assistance (People v Cabrera, 259 AD2d 1007 [quoting Lewis v Casey, 518 US 343]); making legal materials available inside prisons and jails is simply a "reasonable alternative" to assure meaningful access to the courts" (id., quoting Bounds v Smith, 430 US 817). While an inmate's total inability to access the law library, in order to remedy his ignorance of legal rules and requirements, may be a factor entitled to consideration in his favor if he has to move for permission to late file in this Court (see, Plate v State of New York, 92 Misc 2d 1033), research has disclosed no case in which a cause of action for money damages has been maintained for such deprivation.

Finally, if I were willing to consider that the failure to have current court rules in a prison law library could constitute negligence per se, Claimant would be required to prove that he was injured by his inability to pursue his appeal in order to prove entitlement to money damages as a result of such negligence. I am in full agreement with Judge Corbett's decision declining to award an amount based on the cost of the preparation of legal research by Claimant, who is not a legal professional, when the result of that research was lost by the State, and am unaware of any authority to the contrary.

Defendant's motion is granted, and Claim No. 98686 is dismissed.

November 30, 2001
Rochester, New York

Judge of the Court of Claims

  1. [1]Claimant asserts, and Defendant does not dispute, that this notice of appeal was timely filed. It appears from several documents submitted in connection with this motion that the Court of Claims judgment was entered on August 26, 1997 (see, Volcy Affirmation, Exhibit G) (although the Court's own records indicate that judgment was entered on August 14, 1997). An appeal as of right must be filed within 30 days of the service or receipt of a copy of judgment or decision being appealed, along with written notice of its entry (CPLR 5513[a]).
  2. [2]The rules in question were the following: 22 NYCRR 1000.13(a)(5)(i) [listing the papers that must accompany all motions]; 22 NYCRR 1000.23(a)(5)(iii) [requiring that an original and one copy of all papers be submitted]; and 22 NYCRR 1000.14(a)(3) [requiring that motions for permission to appeal as a poor person be served on the county attorney in the county from which the appeal arises].
  3. [3]As counsel for Defendant notes, Claimant states in his claim that he received a copy of the "1997, McKinney's New York Rules of Court." In the next paragraph, however, Claimant states that he did not receive the current (i.e., 1997) version of the rules until September 29, 1997. It is apparent both from the claim and from the letter sent by prison officials to the Fourth Department that the law library did not possess a current (i.e., 1997) copy of the court rules until September 29th.
  4. [4]The statement contained in the answer reads as follows: "Upon information and belief, this Court lacks jurisdiction because of Claimant's failure to timely and properly file a Claim and commence an action as required by Sections 9, 10 and 11 of the Court of Claims Act. Claimant failed to timely serve a Notice of Intention to File a Claim or file a Claim within ninety (90) days of the alleged incident of May 22, 1998. The Notice of Intention to File a Claim and the Claim has not been filed as of August 22, 1998 more than ninety (90) days after the alleged incident."
The statement does not specifically identify the filing requirement with which Claimant did not comply (see, Sinacore v State of New York, 176 Misc 2d 1, 6; Fowles v State of New York, 152 Misc 2d 837). In addition, the final statement is on its face inaccurate, since there is no requirement that notices of intention be filed with the Court and because the answer itself was being made in response to a claim that had been filed and served in July 1998.
  1. [5]In his affidavit submitted in opposition to this motion, Claimant states that he was in fact assaulted by other inmates "based on Officer Crane's action (Gagne Affidavit, ¶9). Such allegations do not appear in the amended claim, however.