New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2004-019-508, Claim No. 106452, Motion Nos. M-67766, CM-67808


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:
January 20, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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 4-5).

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. 2001-005-521][1]; 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 York, 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 dismissed.[2]

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 of action.

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.[3] Although the 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 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]). 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 emotional distress.

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.

January 20, 2004
Binghamton, New York

Judge of the Court of Claims

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

  1. Claim, filed August 1, 2002.
  2. Notice of Motion No. M-67766, dated December 3, 2003, and filed December 11, 2003.
  3. Affidavit of Johnathan Johnson, sworn to December 3, 2003.
  4. Notice of Cross-Motion No. CM-67808, dated September 30, 2003, and filed December 24, 2003.
  5. Affirmation of Joseph F. Romani, AAG, in support of cross-motion, and in opposition to motion, dated December 22, 2003, with attached exhibits.
  6. Memorandum of Law, in support of cross-motion, dated December 22, 2003.

[1]Unreported decisions from the Court of Claims are available via the Internet at
[2]The court notes that even if claimant's motion to amend had been granted the proposed amendments would have been subject to dismissal as well for the same reasons set forth herein as the allegations all relate to additional denials of legal advances.
[3]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).