Claimant, a pro se inmate, moves to amend his claim pursuant to CPLR 3025. 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 three separately stated causes of action alleging that:
(1) the law library at Southport Correctional Facility (hereinafter "Southport")
refused to type claimant's legal brief; (2) Southport officials refused his
request for an advance for legal mail; and (3) Southport correction officer
Casler is engaged in retaliatory conduct against claimant somehow relating to
the delivery of a package. Claimant alleges various theories of liability
arising from these alleged acts and/or omissions by the State with the
predominant theme being violations of the New York State Constitution, as well
as references to negligence and negligent failure to supervise subordinates.
More specifically, claimant describes this claim in terms of violations of the
New York State Constitution Article 1, section 1 [rights and privileges];
Article 1, section 5 [cruel and unusual punishment]; Article 1, section 8 [right
to freedom of speech]; Article 1, section 9 [right to petition]; Article 1,
section 11 [equal protection]; Article 1, section 12 [seizure]. (Claim, pp
The court will first address the State's cross-motion for dismissal since it is
dispositive of the matters before the court. The State cross-moves for
dismissal alleging 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, claimant alleges that the Southport
law library refused to type one of his legal briefs. Quite simply, this court
will not intervene on the issue of claimant's access to the law library or its
related typing services. (Gagne v State of New York
, Ct Cl, November 30,
2001, Patti, J., Claim No. 98686, Motion No. M-63259 [UID No.
; Leach v Dufrain
, 103 F
Supp 2d 542 [authorities may regulate the time, place, and manner of library
use]). Claimant's first cause of action must be dismissed since it fails to
state a cause of action.
With respect to the second cause of action, the court finds that it too fails
to state a cause of action. Claimant alleges that his request on June 28, 2002
for an advance for legal mail was denied by Southport officials, and that
subsequent appeals and grievances relating thereto were denied by the deputy
superintendent and superintendent. For purposes of clarification, the court
notes that claimant alleges that his request for an advance for legal mail was
made pursuant to this court's Decision & Order. Court records indicate no
prior motions relating to this particular claim. However, it appears that
claimant is referring to motion practice in one of his unrelated claims, namely
Claim No. 105402. In Claim No. 105402, this court granted claimant's request to
amend his claim and initially directed claimant to serve his amended claim by
certified mail, return receipt requested. (Johnson v State of New
York, Ct Cl, June 6, 2002, Lebous, J., Claim No. 105402, Motion No. M-65129
[UID No. 2002-019-539]). Thereafter, claimant submitted a letter to the Office
of the Clerk of the Court dated July 8, 2002 indicating difficulty in obtaining
an advance from prison officials to achieve such service. At such time, this
court modified the prior Decision & Order as follows: "Claimant shall, on or
before September 2, 2002, file a Verified Amended Claim with the Clerk of the
Court and shall serve a copy of said Amended Claim upon the office of the
Attorney General by regular mail." (Johnson v State of New York,
Ct Cl, July 22, 2002, Lebous, J., Claim No. 105402, Motion No. M-65129 [UID No.
2002-019-550]; emphasis added).
Assuming the allegations in his second cause of action to be true, claimant has
not suffered any harm as a result of Southport's denial of a legal advance.
(LaTour v State of New York
, Ct Cl, February 10, 2003, Scuccimarra, J.,
Claim No. 106067, Motion Nos. M-66029 & M-65929 [UID No. 2003-030-505]). In
other words, claimant is not alleging that such denial should be used as a basis
for applying estoppel against the State in asserting a jurisdictional defense or
that he missed any deadlines as a result of said denial, particularly in view of
this court's removal of the certified mail, return receipt requested,
requirement as noted above. Rather, claimant seeks to use these denials as
grounds to recover money damages for such denials in and of themselves. Even
assuming for purposes of argument that the facility violated some internal mail
rule, a violation of a regulation or directive does not impliedly create a cause
of action for money damages. (A. Rabb Alamin/R. Price v State of New
, Ct Cl, April 26, 1999, McNamara, J., Claim No. 98122, p 2; see also,
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] [administrative issues
covered by internal grievance protocols]). Consequently, this court finds that
claimant's second cause of action fails to state a cause of action and must be
With respect to claimant's third cause of action alleging retaliatory conduct
by a correction officer, the proper venue for so-called retaliation claims are
inmate grievance procedures 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
To the extent that each of these causes of action allege violations of the
State Constitution, the court finds that this claim fails to state a cause of
action on this basis as well.
Court of Appeals has recognized a cause of action for constitutional tort
(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
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
NY2d 802; 7 NYCRR 701.1 et seq
.; see also
, Moates v State of
, Ct Cl, September 25, 2000, Fitzpatrick, J., Claim No. 99875,
Motion Nos. M-61714 & M-61565 [UID No. 2000-018-044]). The fact that
claimant may have been unsuccessful in pursuing these alternate remedies does
not then create jurisdiction in this court. In sum, there is no need to imply a
cause of action for a constitutional tort in this case.
Finally, to the extent that claimant couches some of his allegations in terms
of negligence, in light of the allegations that the State's acts were
intentionally done in retaliation for claimant's lawsuits, the court finds these
allegations sound in the nature of a claim for intentional infliction of
emotional distress. However, it is well settled 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). Consequently, claimant has
failed to state any viable negligence claim or one for intentional infliction of
In view of the foregoing, it is ORDERED, that the State's cross-motion for
dismissal, Cross-Motion No. CM-67808, is GRANTED; claimant's motion to amend his
claim, Motion No. M-67766, is DENIED; and Claim No. 106452 is DISMISSED.