Claimant, Gary Lamar, seeks compensation for the alleged negligent mishandling
of his incoming legal mail by Sing Sing Correctional Facility (hereinafter Sing
Sing) staff. Claimant further alleges a violation of his right to privacy.
Trial of the matter was held at Sing Sing on June 21, 2002.
Claimant testified that his incoming privileged mail had been opened in direct
violation to the rules and regulations set forth in Directive 4421.(Claimant's
Ex. 2). He explained that under the Directive the facility process - with
respect to legal mail - is to open it in the presence of the inmate to whom it
is addressed, unless "there is a tip that there is contraband in the
Claimant asserted that on four separate
his "legal mail . . .was treated as
regular correspondence" and was not opened in his presence nor entered into the
log entry book, according to procedure. (See
Claimant's Ex. 3,
photocopies of two of the opened envelopes). He stated that he filed three
separate Grievances that resulted in an investigation wherein the Grievance
Clerk determined "there was truth to [his] story" and advised him to pursue
"further appropriate actions", which he understood to mean "filing with the
Court of Claims."
Indeed, the Inmate Grievance Resolution Committee stated, in a decision after
a hearing held July 6, 2000, : "Committee notes the improper handling of legal
mail has risen at an alarming rate, though Correspondence Supervisor, G. Kelly,
continuously states the matter has been corrected. As such, committee
recommends remedial action at the superintendent's level...." (Claimant's Ex.
Claimant seeks damages in the amount of Twenty Thousand ($20,000.00)
No other witnesses testified and no other evidence was submitted.
Although this Court is satisfied that Claimant has established, through his
testimony and the Inmate Grievance Committee's report accepting responsibility,
that his legal mail was, in fact, opened outside of his presence, the Court
nonetheless does not have jurisdiction to decide the constitutional claim he
appears to be alleging.
The Court notes that there is no "right to privacy" under the New York State
Constitution. Thus, the analysis set forth in
Brown v State of New York
, 89 NY2d 172 (1996), to determine whether a
cause of action may be properly brought in the Court of Claims for an alleged
violation of provisions of the New York State Constitution, simply does not
. Indeed, the only right to privacy
recognized under New York Law is that created by Article 5 of the Civil Rights
Law, and "...no common law right of action for invasion of privacy...." exists
in New York. Waldron v Ball Corp
., 210 AD2d 611, 614 (3d Dept. 1994),
, 85 NY2d 803 (1995); See, also
, Henriquez v Times Herald
, 1997 WL 732444 (SDNY 1997); Hurwitz v U.S.
, 884 F.2d 684,
, 493 US 1056 (1990). Additionally, the Court of Claims does
not have jurisdiction over federal constitutional tort claims. See
Zulu v State of New York
, 2001 WL 880833 (NY Ct Cl 2001); Campolito v
State of New York
, Claim No. 94670, Collins, J., April 27, 2000; 42 USC
While 7 NYCRR § 721.3 and Directive 4421, require the State Department of
Correctional Services (hereinafter DOCS), to open and/or inspect incoming
in the presence of the inmate to whom it is
and to make a log entry of incoming
privileged correspondence erroneously opened outside of the inmate's
"...the mere violation of a
regulation resulting in the invasion of an inmate's right of privacy, will not
give rise to a private civil remedy when there are already in place other
remedies to protect the inmate's rights....(citations omitted
Campolito v State of New York, supra
; See also
, Ruotolo v State of New
, 157 AD2d 452 (1st Dept. 1990)
Lawrence v State of New York
, 180 Misc 2d 337, 342 (NY Ct Cl
In this case, there are adequate alternative remedies available to protect
Claimant, and no private right of action should be implied. Injunctive or
declaratory relief, appropriately sought in an Article 78 proceeding, could
provide claimant with an adequate remedy, namely an order preventing the
unauthorized opening of his privileged mail. [
]. Additionally, the inmate grievance process - successfully pursued in
this instance - is also available.[Id
]; See, also
, Matter of Mc
Kenna v Goord
, 245 AD2d 1074, 1075 (4th Dept.
Finally, Claimant has not shown
how, if at all, he has been damaged by the asserted mishandling of his legal
mail. See, e.g.
, Williams v State of New York
, Claim No. 98736,
O'Rourke, J. June 19, 2000.
For all the foregoing reasons, Claimant has failed to establish, by a
preponderance of the credible evidence, that any private remedy should be
applied for the negligent mishandling of his legal mail in violation of the
applicable regulations, or that he has suffered any cognizable damages.
Accordingly, Claim No. 103432 is hereby dismissed in its entirety. Let Judgment
be entered accordingly.