New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2003-019-565, Claim No. 107621, Motion Nos. M-67430, CM-67474


The State's cross-motion for dismissal is granted; claim dismissed. Claimant's motion to compel discovery is denied as moot.

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
October 27, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


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 retaliation claims.

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. 2003-031-013];[1] 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.[2] 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 denied 88 NY2d 802; 7 NYCRR 701.1 et seq.; see also, Moates 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 DISMISSED.

October 27, 2003
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection with these motions:

  1. Claim, filed April 16, 2003.
  2. Verified Answer, filed May 21, 2003.
  3. Notice of Motion No. M-67430, dated September 16, 2003, and filed September 19, 2003.
  4. Affidavit of Johnathan Johnson, in support of motion, sworn to September 16, 2003.
  5. Notice of Cross-Motion No. CM-67474, dated September 30, 2003, and filed October 2, 2003.
  6. Affirmation of Joseph F. Romani, AAG, in support of cross-motion and in opposition to motion, dated September 30, 2003, with attached exhibits.
  7. Memorandum of Law, in support of cross-motion, dated September 30, 2003.
  8. "Claimant's Reply", unsworn to and undated, in opposition to cross-motion, filed October 8, 2003, with attached exhibit.

Selected unreported decisions from the Court of Claims are available via the Internet at
To the extent that any of claimant's allegations attempt to invoke violations of the Federal Constitution such claims are not cognizable in the Court of Claims. (Ferrer v State of New York, 172 Misc 2d 1, 5).