New York State Court of Claims

New York State Court of Claims

McCULLOUGH v. THE STATE OF NEW YORK, #2002-030-076, Claim No. 103332


Pro se inmate's Claim alleging denial of access to the court while in DOCS custody dismissed. No such tort in New York. Claimant did not avail himself of the appellate process. If Claimant alleging that officials failed to perform obligatory duties or regulations enacted violate individual liberties then Article 78 proceeding may be a mechanism for judicial review

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:
Third-party defendant's attorney:

Signature date:
September 6, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

David McCullough, the Claimant herein, alleges in Claim Number 103332 that defendant's agents denied him access to the court while he was in the custody of the New York State Department of Correctional Services at Downstate Correctional Facility (hereafter Downstate). Trial of the matter was held at Green Haven Correctional Facility (hereafter Green Haven) on August 23, 2002.
Claimant testified that when he was "drafted out of Elmira"[1]
for a trial session of the Court of Claims to be held at Green Haven on Monday, August 7, 2000, he was given a "quart bag in which they give you your legal work and a change of underwear" and toiletries for the transfer. He stated he arrived at Downstate on Friday, August 4, 2000 for the trial session, but was not given his legal work when he asked for it upon his arrival. Instead, his paperwork was handed to him just before his name was called for the trial at Green Haven Monday morning. He indicated that the claim he had pending before Judge Waldon on August 7, 2000 was dismissed that day.
As part of the policy of Downstate, he asserted, an inmate could not obtain his legal work until the seventh business day. In support of this contention, Claimant provided a page from the Downstate inmate handbook he was provided with while at Downstate, indicating that "transits" could request legal work from the Draft Sergeant on the seventh business day. [
See, Claimant's Exhibit "1"]. Claimant argued that this policy denied him and others access to the courts.
Additionally, his legal work was not returned to him - nor was he drafted back to Elmira - with any degree of promptness, preventing his ability to appeal the Court of Claims dismissal and do further legal work. He said he was kept at Downstate until September 12, 2000, and was only mailed his legal work on September 13, 2000. A transmittal letter from the Law Library Supervisor at Downstate to the Law Library Supervisor at Elmira, dated November 7, 2000, indicates that legal materials being held at Downstate were being sent back. [
See, Claimant's Exhibit "2"].
On cross-examination, he admitted he did not mention to Judge Waldon that there had been any difficulty in obtaining his legal materials to prepare for the court proceeding since he was "too nervous." He also indicated that at first he was a little disconcerted by the quick review of his paperwork before the trial began, but that he ultimately found his way.

At the close of Claimant's case, Defendant moved to dismiss the claim for a failure to state a cause of action, noting that there is no recognized tort in New York State for denial of access to courts, as well as a failure to follow the judicial process, i.e.: appeal the determination, or move to reopen, or other court process.

This Court agrees. A claim alleging denial of access to courts is based upon a violation of the Federal Constitution, and should be pursued pursuant to 42 USC §1983. No cause of action against the State of New York exists for alleged violations of an individual's rights under the United States Constitution [
See, Welch v State of New York, 286 AD2d 496, 498 (2d Dept 2001); Zagarella v State of New York, 149 AD2d 503 (2d Dept 1989; Davis v State of New York, 124 AD2d 420,423 (3d Dept 1986)], in that the State is not a "person" amenable to suit pursuant to 42 USC §1983.
Moreover, Claimant does not appear to have availed himself of the opportunity to appeal the decision of the Court of Claims or to otherwise move to alter the result by post trial motion.

Finally, if what is alleged in the claim is viewed as a prison official failing to perform a duty he is obligated to perform, or enacting regulations that are violative of individual liberties, a more appropriate vehicle for judicial review would be a special proceeding brought in Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules.
See, Dziedzic v Goord, 174 Misc 2d 637 (Wyoming Co Sup Ct 1997). The Court of Claims simply does not have jurisdiction over this claim as presented. See, generally, Court of Claims Act §9.
Accordingly, Defendant's motion to dismiss, reserved on at the time of trial is hereby granted, and Claim Number 103332 is hereby dismissed in its entirety.

Let Judgment be entered accordingly.

September 6, 2002
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audiotapes unless otherwise indicated.