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,
Claimant testified that when he was "drafted out of
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. [
, 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.
, 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
, 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.
, 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
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
Let Judgment be entered accordingly.