New York State Court of Claims

New York State Court of Claims
WAXTER v. THE STATE OF NEW YORK, #2005-032-007, Claim No. 102256, Motion No. M-69417

A prison inmate who was sexually assaulted by a correction officer does not have a cause of action based on constitutional tort against the State because of the existence of other, alternative remedies, and on the facts of this case, defendant is entitled to summary judgment on the cause of action alleging negligent supervision, training and retention of the officer. The officer was not acting within the scope of his employment at the time of the assault and thus the State cannot be liable under the doctrine of respondeat superior. Unresolved issues of material fact exist, on the other hand, with respect to a cause of action alleging subsequent harassment and unauthorized confinement following the inmate’s transfer to a different correctional facility.

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:
Andrew F. Plasse, Esq.
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael W. Friedman, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
February 16, 2005

Official citation:

Appellate results:
Affirmed 33 AD3d 1180 [3d Dept 10/26/06]
See also (multicaptioned case)


This claim arose on April 8, 1997, at Adirondack Correctional Facility. At approximately 2:00 a.m., claimant, an inmate at that facility, awoke and went outside his dorm room to obtain a drink of water. It is alleged that as he passed by the duty officer’s desk, Correction Officer Michael Roberts asked him what he was doing up so late and then told claimant to go into the officers’ bathroom. Correction Officer Roberts followed him into the room and, according to claimant, sexually molested and assaulted him.
Claimant immediately reported the incident to the facility medical officer and the Inspector General’s Office, after which he was placed in solitary confinement and transferred to another facility. On October 18, 1997, Correction Officer Roberts was suspended from duty without pay as a result of the incident involving claimant (Plasse affirmation, Exhibit E), and on July 7, 2004, he was convicted of third degree sodomy (Felony, class E) and official misconduct (Misdemeanor, class A). His sentences, which were to run concurrently, were one to three years in State prison on the sodomy charge and one year in county jail on the official misconduct charge.
The claim sets forth two causes of action: a constitutional tort, based on alleged violation of claimant’s rights under Article 1, Section 5 of the New York State Constitution (freedom from cruel and inhumane treatment) and a cause of action based on the State’s alleged negligence in its supervision, training and retention of Correction Officer Roberts. With respect to the latter cause of action, claimant alleges that defendant had knowledge of prior complaints filed against Roberts for sexual misconduct, abuse, and unreasonable use of force but nevertheless failed to adequately investigate these complaints and continued to employ him as a correction officer.
Although the claim does not set forth a separate cause of action based on actions subsequent to the events of April 8, 1997, counsel for claimant now asserts that a distinct claim is set out in paragraphs 30 and 31 of the claim. These paragraphs read, in full, as follows:
30. After the Claimant reported this incident to the medical officer and Inspector General’s Office, Claimant was placed in solitary confinement. Claimant was subsequently transferred on or about April 14, 1997 to the Clinton Correctional Facility, in Dannemora, New York and placed in the Special Housing Unit, where he was confined to his cell 23 hours per day.
31. Claimant was subjected to harassment by Corrections Officers at the Clinton Correctional Facility, including being slapped by Corrections Officer J. Devan; being subjected to threats of violence at the hands of Corrections Officers; being subjected to constant ridicule by Corrections Officer, being subjected to a false misbehavior report; being subject to keep lock status and the denial of prompt and necessary medical and dental treatment.
Defendant has moved for summary judgment dismissing the claim on the following grounds: 1) that a constitutional tort cannot be implied where there are other appropriate avenues to relief, 2) that there is no proof that the State was on notice of any prior acts of sexual misconduct on the part of Correction Officer Roberts, and 3) that the actions of Correction Officer Roberts were not within the scope of his employment and, consequently, the State cannot be held liable for those actions. Defendant has also submitted documentation relating to claimant’s complaints of harassment and being slapped by a correction officer at Clinton Correctional Facility, indicating that an investigation into the matter determined that claimant’s allegations were unfounded (Friedman affirmation, Exhibit C).
With respect to the cause of action for negligent supervision, training and retention, counsel for claimant forthrightly concedes that no evidence of prior sexual misconduct on the part of Correction Officer Roberts was contained in that officer’s personnel file or in other evidence obtained through discovery. Consequently, defendant is entitled to summary judgment dismissing this cause of action.
With respect to the alleged constitutional tort, claimant’s counsel asserts that the existence of such a cause of action was recognized by former Judge John L. Bell, when he granted claimant permission to file a late claim (Claim No. 100157, Motion No. M-61267, filed April 5, 2000) and that Judge Bell’s ruling is “law of the case.” This argument is incorrect in several respects. The standard that must be met to establish that a proposed late claim has sufficient appearance of merit is, as Judge Bell noted, a “low hurdle.” To grant late claim relief under section 10(6) of the Court of Claims Act, the Court need only determine that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). In opposition to a motion for summary judgment, however, when the moving party has made a prima facie case, as is the case with respect to this cause of action (see below), the party against whom judgment is sought must “lay bare his or her evidence establishing the existence of a genuine triable issue of fact” (Bouchard v Champlain Enterprises Inc., 279 AD2d 935, 937 [3d Dept 2001], citing to Vermette v Kenworth Truck Co., 68 NY2d 714 [1986]; see also Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). Because of the different standards that must be met, a determination by Judge Bell that the proposed claim’s allegations of constitutional tort were apparently meritorious so as to allow late filing could not be the “law of the case” on that issue in response to a motion for summary judgment. In any event, Judge Bell’s decision does not specifically address the apparent merit of the cause of action for a constitutional tort, and it was not necessary that he make a final determination on that issue (see e.g., Marcus v State of New York, 172 AD2d 724 [a proposed claim that may not have merit, depending on facts that are not reasonably accessible to the claimant in the early stages, should be allowed]).
In support of the existence of a constitutional tort arising from this fact pattern, claimant references the Federal civil rights statutes (42 USC §1981 et seq.),
and asserts that prohibition against cruel and unusual punishment found in the Eighth Amendment of the United States Constitution, which has been held to encompass sexual abuse by prison guards (Boddie v Schnieder, 105 F3d 857 [2d cir 1997]), is essentially duplicated in the New York Constitution (Art 1, §5). While this may be true, an implied right of action under the State constitution is a much more limited and rarely seen remedy than a statutory civil rights claim based on the Federal constitution.
Such a cause of action arises only if (1) the constitutional provision is self-executing; (2) the substantive right is firmly established; (3) the implied tort is necessary or appropriate to ensure the effectiveness of the provision; and (4) the claimant has no common law or statutory remedy available to him (see Brown v State of New York, 89 NY2d 172 [1996]). In some circumstances the New York Constitution’s prohibition against cruel and unusual punishment can meet this test, such as where there is deliberate indifference to an inmate’s medical needs (see Davis v State of New York, 5 Misc 3d 1011[A] [Ct Cl 2004]; De La Rosa v State of New York, 173 Misc 2d 1007 [Ct Cl 1997]). A further limitation, however, is that a remedy based on the State constitution does not lie where the alleged constitutional tort is analogous “to an existing common-law tort for which there are adequate alternate remedies” (Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]; see also Lyles v State of New York,194 Misc 2d 32, 36 [Ct Cl 2002], affd 2 AD3d 694 [2d Dept 2003] affd 3 NY3d 396 [2004]; Remley v State of New York, 174 Misc 2d 523, 526 [Ct Cl 1997]). Claimant’s allegations herein could have been readily addressed in a timely commenced common-law cause of action for assault and battery against Correction Officer Roberts individually, brought in Supreme Court; an action based on 42 USC §1983 brought in Supreme Court or Federal court;
or (if there had been a factual basis for such) an action for negligent supervision, training, and retention.
For the State to be liable to claimant, there must have been some wrongdoing on the part of prison officials generally or Correction Officer Roberts in his official capacity. Both parties agree that in New York acts of sexual assault by employees are clear departures from the scope of their employment, “committed solely for personal reasons,” and thus not actions for which the employer can be held liable under the doctrine of respondeat superior (Dia CC. v Ithaca City School Dist., 304 AD2d 955, 956 [3d Dept 2003], lv denied 100 NY2d 506; see also Cornell v State of New York, 46 NY2d 1032 [1979], rearg denied 47 NY2d 951). Without proof that there was fault on the part of any State officer other than Correction Officer Roberts, who was not acting in his official capacity at the time of the crime, there can be no liability on the State, whether for a constitutional tort or common law tort.
With respect to the cause of action asserted in paragraphs 30 and 31 of the claim, quoted above, of harassment, abuse, and excessive wrongful confinement after the incident involving Correction Officer Roberts, defendant’s submission of the investigation reports and other material (Friedman affirmation, Exhibit C) establishes that there are material issues of fact that must be determined at trial.
Defendant’s motion for summary judgment dismissing the claim is granted, with the exception of claimant’s cause of action for excessive wrongful confinement, harassment, and other abuse following his transfer to Clinton Correctional Facility, which survives.

February 16, 2005
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion for summary judgment dismissing the claim:
1. Notice of Motion and Supporting Affirmation of Michael W. Friedman, Esq., AAG, with annexed exhibits;
2. Affirmation in Opposition of Andrew F. Plasse, Esq., with Memorandum of Law
3. Reply Affirmation of Michael W. Friedman, Esq., AAG;
Filed papers: Claim; Answer

[1] This statutory right of action for alleged violations of the United States Constitution may not be raised in this Court, as the State is not a "person" amenable to suit under 42 USC §1983 (Will v Michigan Dept. of State Police, 491 US 58 [1989]) and "the law is unequivocal that this section does not give rise to a cognizable claim against the State or a department thereof" (Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]).
[2] Claimant did commence an action based on 42 USC §1983 in the United States District Court for the Northern District of New York (98-CV-342). The suit was dismissed as against the State of New York, the Department of Correctional Services, and Michael Roberts in his official capacity on Eleventh Amendment grounds. As noted by defense counsel, it appears that the suit against Michael Roberts in his individual capacity survived (Friedman reply affirmation, ¶4; see Doolittle v Ruffo, 882 F Supp 1247, 1252 n1, 1263, [NDNY 1994] [42 USC §1983 action was not dismissed against a defendant in his individual capacity]).