New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2002-005-562, Claim No. 106627, Motion No. M-65873


Defendant's motion an order pursuant to CPLR 3211 for dismissal of the claim 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:
Johnathan Johnson,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 14, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


On November 13, 2002, the following papers, numbered 1 to 4, were read on motion by Defendant for an order pursuant to CPLR 3211 granting dismissal of the claim:

1, 2 Motion to Dismiss Claim, Affirmation in Support and Exhibit Annexed
  1. Reply Affidavit in Opposition
  2. Filed Paper: Claim
Upon the foregoing papers, this motion is granted and the claim is dismissed.

Defendant, in lieu of an answer, moves for dismissal on the ground that none of the causes of action that Claimant asserts state claims for which relief may be granted. The claim alleges three causes of action which will be addressed seriatim.

The first cause of action alleges tort and purported constitutional violations relating to a double bunk assignment on or about August 20, 2002, at Auburn Correctional Facility (Auburn) and Claimant's assertion that he should not have been assigned to a double bunk. He also avers that a prison disciplinary report was issued to him relating to that incident and that he was given 90 days in the Special Housing Unit (SHU). It does not allege any compensable injury, and merely complains that Claimant was assigned to a double bunk cell when he should not have been. He may have relief through filing an inmate grievance relating to that placement, or appealing the finding at his disciplinary hearing, or bringing a federal civil rights action if he is so advised, but he alleges no due process violation (Arteaga v State of New York, 72 NY2d 212), and no injury other than the purported temporary in-transit double bunk placement at Auburn. The first cause of action is dismissed.

The second cause of action relates to a disciplinary hearing at Southport Correctional Facility on or about September 5, 2002, at which Claimant alleges that he was exposed to second-hand smoke. Claimant fails to state a cause of action for which relief may be granted (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"). Public Health Law §1399-w limits liability and causes of action for noncompliance with a smoking ban. Also, Claimant does not allege any physical harm that resulted from the unspecified period of time he was allegedly exposed to second hand smoke. Such sparse and insubstantial pleadings are insufficient to create a cause of action upon which compensatory relief may be granted.

Likewise, Claimant's allegations of a cruel and unusual punishment under New York State Constitution article I, § 5, and his other recited constitutional violations are inadequately pleaded and further fail, as they are 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 factors:
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 second cause of action is dismissed.

The third cause of action relates to a visit to Claimant at Southport Correctional Facility (Southport) on or about August 24, 2002, by Claimant's sister, one Spring McQueen. It alleges, inter alia, that she was denied visitation privileges, and that she was harassed, but makes no allegation of putatively actionable behavior directed toward Claimant, only toward his sister. The third cause of action alleges nothing with respect to Claimant or any purported injury to him, and only makes claims about his sister's potential aggrievement. It raises putative claims for which Claimant has no standing, since he is not an aggrieved party. The third cause of action is also dismissed.

Accordingly, since all the causes of actions are dismissed, the motion is granted and the claim is dismissed.

February 14, 2003
Rochester, New York

Judge of the Court of Claims