Claimant, a pro se inmate, moves to compel discovery pursuant to CPLR 3124.
The State of New York (hereinafter "State") opposes the motion and cross-moves
for dismissal of this claim pursuant to CPLR 3211 (2) and (7).
This claim contains four separately stated causes of action alleging that: (1)
medical personnel at Auburn Correctional Facility (hereinafter "Auburn") refused
to refill two of claimant's prescriptions from Southport Correctional Facility
(hereinafter "Southport"); (2) prior to leaving for a federal court appearance
Auburn officers refused to provide claimant with a bowl for his morning cereal
and then refused to provide any evening meal upon his return; (3) Southport
correction officers have fabricated misbehavior reports in retaliation for
claimant's pending lawsuits; and (4) medical personnel at Southport delayed
providing various medications for several days. Claimant alleges various
theories of liability with the predominant theme being violations of the New
York State Constitution and retaliatory actions by correctional facility
personnel. In fact, in claimant's own words, this claim "resonates" of
constitutional torts. (Claimant's Reply, ¶ 16). More specifically,
claimant describes this claim in terms of violations of the State Constitution
Article 1, section 1 [rights and privileges secured]; Article 1, section 5
[cruel and unusual punishment]; Article 1, section 6 [due process of law];
Article 1, section 9 [right to petition]; and Article 1, section 11 [equal
protection]. (Claim). The claim also contains references to harassment, tort
action, negligence, and negligent failure to supervise subordinates.
The court will address the State's cross-motion for dismissal first since it is
dispositive of the matters before the court. The State cross-moves for
dismissal alleging this claim fails to state a cause of action and this court
lacks subject matter jurisdiction. More specifically, the State argues that
claimant has failed to state any cognizable constitutional tort cause of action
and that the Court of Claims does not have jurisdiction over so-called
With respect to the first cause of action, the court finds that it fails to
state a cause of action. Claimant has failed to set forth how he was injured by
not receiving his medications and, as such, fails to comply with Court of Claims
Act 11. (Tafari v State of New York
, Ct Cl., April 3, 2003, Minarik, J.,
Claim No. 103164, Motion No. M-65946 [UID No.
State's Verified Answer, ¶
¶ 6-9). Claimant's assertions of constitutional torts in relation to this
cause of action are addressed below.
With respect to the second cause of action, the court finds that it too fails
to state a cause of action. There is no cognizable cause of action for
compensatory damages for untimely or improper meal service, rather these are
administrative issues covered by internal grievance protocols. (Gill v State
of New York, Ct Cl., July 13, 2001, Corbett, Jr., J., Claim No. 103750,
Motion No. M-63268 [UID No. 2001-005-521]; A. Rabb Alamin/R. Price v State of
New York, Ct Cl., April 26, 1999, McNamara, J., Claim No. 98122, p 2
[violation of a regulation or directive does not impliedly create a cause of
action for money damages]). Claimant's assertions of constitutional torts in
relation to this cause of action are addressed below.
Claimant's third cause of action alleges that a correction officer fabricated a
misbehavior report against him in retaliation for his pending civil rights
actions. (Claim, pp 3-4). The proper venues for so-called retaliation claims
are the inmate grievance procedure and Article 78 proceedings, not the Court of
Claims. (Zulu v State of New York, Ct Cl., May 21, 2001, Patti, J.,
Claim Nos. 96973 & 96974, Motion Nos. M-63183 & M-63184 [UID No.
2001-013-006]). Consequently, this court does not have jurisdiction over
claimant's third cause of action. Claimant's assertions of constitutional torts
in relation to this cause of action are addressed below.
With respect to the fourth cause of action, claimant alleges that a correction
officer threw away unnamed prescription and non-prescription drugs; one nurse
refused to issue any medication besides Tylenol; and that certain prescription
drugs were not refilled for several days. Again, claimant characterizes these
actions as retaliatory for a prior grievance complaint regarding this same type
of behavior. As noted above, this court does not have jurisdiction over
so-called retaliatory claims.
To the extent that all of these causes of action rely upon alleged violations
of the State Constitution, the court finds that this claim fails to state a
cause of action on this basis as well.
Although the Court of Appeals has recognized a cause of action for
constitutional torts (Brown v State of New York
, 89 NY2d 172), it is
well-settled that a constitutional tort remedy will not be implied when adequate
alternative remedies exist. (Augat v State of New York
, 244 AD2d 835,
837, lv denied
91 NY2d 814; Remley v State of New York
, 174 Misc
2d 523). Here, claimant could have pursued inmate grievances and if
dissatisfied with the results of the grievance process, then he could commence
an Article 78 proceeding. (Matter of Hakeem v Wong
, 223 AD2d 765, lv
88 NY2d 802; 7 NYCRR 701.1 et seq
.; see also
v State of New York
, Ct Cl., September 25, 2000, Fitzpatrick, J., Claim No.
99875, Motion Nos. M-61714 & M-61565 [UID No. 2000-018-044]). Actually, it
appears from claimant's opposing papers that he may have pursued those remedies
but received adverse decisions. (Claimant's Reply, ¶ ¶ 11-14 &
17). The fact that claimant was unsuccessful in pursuing these alternate
remedies does not then create jurisdiction in this court. In sum, there is no
need to imply any causes of action for constitutional torts in this case.
Finally, to the extent that claimant couches some of his allegations in terms
of negligence, the court notes that "[p]ublic policy prohibits the maintenance
of a suit against the State for intentional infliction of emotional distress
[citations omitted]." (Brown v State of New York, 125 AD2d 750, 752,
appeal dismissed 70 NY2d 747).
In view of the foregoing, it is ORDERED, that the State's cross-motion for
dismissal, Cross-Motion No. CM-67474, is GRANTED; claimant's motion to compel
discovery, Motion No. M-67430, is DENIED as moot; and Claim No. 107621 is