New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2007-015-222, Claim No. 110305, Motion No. M-73379


Synopsis


Claimant alleged that the issuance and weekly renewal of a cell shield order without the benefit of a hearing was unconstitutional entitling him to damages. The Court dismissed the constitutional tort claims holding that alternative avenues of redress were available. In addition, the Court of Claims lacked subject matter jurisdiction regarding whether the applicable regulation was applied in an unconstitutional manner or was otherwise unconstitutional on its face.

Case Information

UID:
2007-015-222
Claimant(s):
LARRY RODRIGUEZ
Claimant short name:
RODRIGUEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110305
Motion number(s):
M-73379
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Larry Rodriguez, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney GeneralBy: Michael W. Friedman, Esquire and Michael T. Krenrich, Esquire Assistant Attorneys General
Third-party defendant’s attorney:

Signature date:
August 9, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, seeks damages arising from the alleged conduct of correction officials at Great Meadow Correctional Facility in placing a cell shield [1] on his cell and permitting it to remain there for approximately eight months. In support of his claim, he alleges that the issuance and weekly renewal of a cell shield order without the benefit of a hearing entitles him to damages for the following violations of the N.Y. Constitution: due process (art I, § 6), cruel and inhuman treatment (art I, § 5), equal protection (art I, § 11 ) and the ex post facto clause (art I, § 5). Claimant, an inmate proceeding pro se, seeks damages arising from the alleged conduct of correction officials at Great Meadow Correctional Facility in placing a cell shield [2] on his cell and permitting it to remain there for approximately eight months. In support of his claim, he alleges that the issuance and weekly renewal of a cell shield order without the benefit of a hearing entitles him to damages for the following violations of the N.Y. Constitution: due process (art I, § 6), cruel and inhuman treatment (art I, § 5), equal protection (art I, § 11 ) and the ex post facto clause (art I, § 5).

Subsequent to the scheduling of a trial in this action, the defendant moved for dismissal contending that the claim was untimely filed and served. While the motion was pending, a trial was conducted on July 2, 2007.

The claim alleges that a cell shield was installed on claimant's cell on March 5, 2004 based upon his alleged harassment of staff by yelling vulgarities. The order authorizing placement of the cell shield was allegedly renewed weekly through October 2004. As will be set forth below, the evidence adduced at trial indicates that, in fact, the cell shield order remained in effect until November 21, 2004. It is undisputed that a notice of intention was properly served on July 16, 2004 and that a claim was served on the defendant on January 3, 2005 and filed on January 4, 2005.

At trial, the claimant testified that the cell shield was placed on his cell on March 5, 2004 after he became involved in an argument with a correction officer regarding his breakfast. The claimant stated that the order authorizing use of the cell shield was renewed every seven days for eight months based upon the conduct which occurred on March 5, 2004. The first cell shield order issued on March 7, 2004 states that "[o]n 3/5/04 you verbally harassed staff by yelling vulgarities at them, from within your cell. You refused all direct orders to cease this activity" (Exhibit 6). The order was renewed based on the March 5, 2004 incident until March 21, 2004 when an additional incident was also noted on the renewal order: "In addition, you created another disturbance and made threats to staff on 3/10/04." The weekly renewals continued based upon these two incidents until an alleged "unhygienic act" occurring on April 27, 2004 was noted on the May 2, 2004 order. The weekly renewals continued thereafter with additional incidents of refusing direct orders being noted on the July 8, 2004, August 2, 2004, August 11, 2004, August 24, 2004, September 16, 2004, September 30, 2004 and October 4, 2004 orders.

Imposition of the cell shield was not a penalty imposed as part of the disciplinary charges brought against the claimant (see defendant’s Exhibit A). Rather, the cell shield was ordered and imposed pursuant to 7 NYCRR § 305.6, which permits the placement of a cell shield for "good cause" and provides a non-exclusive list of conduct warranting use of the shield, including inmate attempts to harass staff (7 NYCRR § 305.6 [b][2]) and where "[t]he inmate is so disruptive as to adversely affect the proper operation of the unit" (7 NYCRR § 305.6 [b][3]).

Claimant filed grievances concerning the cell shield which were denied on April 12, 2004 (Exhibits 3 and 4).

Captain Stephen Rowe testified on behalf of the defendant that a cell shield is a plastic barrier used for the protection of both staff and inmates. Orders authorizing use of a cell shield are reviewed on a weekly basis and renewed based on the recommendation of the supervisor. He testified that the cell shield orders in this case were issued based upon the claimant's disruptive and unpredictable behavior.

On cross-examination Captain Rowe testified that the cell shield orders were renewed based on the claimant's behavior on March 5, 2004 as well as subsequent incidents.
It is now settled that a cause of action for a violation of the N.Y. Constitution may give rise to a tort cause of action where it is necessary to ensure the full realization of the claimant's constitutional rights (Brown v State of New York, 89 NY2d 172 (1996); Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]; Knight v State of New York, Ct Cl, December 19, 2002, Claim No.104458, Motion Number M-65115 [UID # 2002-015-308], Collins, J.). The right is a narrow one, however, and may not be invoked where the claimant has an alternate "avenue of redress" (Martinez v City of Schenectady, 97 NY2d at 83 ; Waxter v State of New York, 33 AD3d 1180 [2006]; Bullard v State of New York, 307 AD2d 676 [2003]). Here, the claimant had adequate avenues of redress to vindicate his rights. Although the claimant filed a grievance regarding the cell shield it is not at all clear that he appealed denial of the grievance. In addition, claimant could have challenged the cell shield orders under CPLR article 78, which he apparently failed to do[3] (Foley v Masiello, 38 AD3d 1201 [2007] [article 78 proceeding is generally the proper vehicle to determine whether a statute, ordinance or regulation has been applied in an unconstitutional manner]; Ahlers v State of New York, Ct Cl, June 27, 2000 [Claim No. 96505, UID # 2000-014-108] Nadel, J., unreported [article 78 proceeding was adequate alternative remedy to constitutional tort claim in the Court of Claims]; Rossi v State of New York, Ct Cl, July 9, 2001 [Claim No. 104004, Motion No. M-63481 UID # 2001-019-542] Lebous, J., unreported [article 78 proceeding was adequate alternative remedy to constitutional tort claim]). Furthermore, if the crux of the claimant’s contention is the purported unconstitutionality of the regulation governing the issuance of a cell shield order (7 NYCRR § 305.6), a declaratory judgment action in the Supreme Court is available to secure such relief (Cass v State of New York, 58 NY2d 460 [1983]). These alternate avenues of redress protect the two vital interests first recognized by the Court of Appeals in Brown v State of New York, supra, and later described in Martinez v State of New York, supra, as "the private interest that citizens harmed by constitutional violations have an avenue of redress, and the public interest that future violations be deterred" (id. at 83). Accordingly, the availability of these alternate remedies render recognition of a constitutional tort claim unnecessary to effectuate the purpose of the State constitutional protections and ensure full realization of the claimant's rights under the circumstances presented.

Moreover, for related reasons, it is clear that the Court lacks subject matter jurisdiction over the due process claim. "While '[j]urisdiction reposes in the Court of Claims where "the essential nature of the claim [against defendant] is to recover money", [it does not lie] where "monetary relief is incidental to the primary claim" ' " (Guy v State of New York, 18 AD3d 936, 937 [2005], quoting Harvard Fin. Servs. v State of New York, 266 AD2d 685, 685 [1999], quoting Matter of Gross v Perales, 72 NY2d 231, 236 [1988]; see also Hoffman v State of New York, 2007 WL 1932237 [2007], 2007 NY Slip Op 05818 [2007]; Madura v State of New York, 12 AD3d 759 [2004]). An award of money damages on the claimant’s constitutional tort claims in this case requires the threshold determination that either the manner in which the cell shield regulation was implemented violated the claimant’s constitutional rights or the regulation itself was unconstitutional. In either event, the monetary relief sought by the claimant is incidental to the primary claim and jurisdiction in the Court of Claims is lacking.

With respect to the claimant’s cause of action for cruel and inhuman treatment, the imposition of a cell shield is not so “ ‘barbarous’ or ‘shocking to the conscience’ ” so as to constitute cruel and inhuman treatment in violation of the Constitution (Wilkinson v Skinner, 34 NY2d 53, 60 [1974][citation omitted]; Breazil v Bartlett, 998 F.Supp. 236 [W.D. N.Y. 1997]; Demaio v Mann, 877 F. Supp. 89 [N.D. N.Y. 1995], affd 122 F3d 1055 [2005]).

This decision renders it unnecessary for the Court to determine the defendant's motion for dismissal of the claim as untimely.

For the foregoing reasons, the claim is dismissed. Let judgment be entered accordingly.


August 9, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated May 14, 2007;
  2. Affirmation of Michael Friedman dated May 14, 2007 with exhibits;
  3. Claimant's opposition to motion to dismiss dated June 4, 2007.

[1]. 7 NYCRR § 305.6 (a) describes a cell shield as a “transparent cell front covering, equipped to provide adequate ventilation".
[2]. 7 NYCRR § 305.6 (a) describes a cell shield as a “transparent cell front covering, equipped to provide adequate ventilation".
[3]. In an analogous context, it has been held that the periodic review requirement for deprivation orders (7 NYCRR 305.2[c]),the availability of the inmate grievance program and the fact that the inmate has a judicial remedy under CPLR article 78 provide appropriate due process protections (Matter of Bogle v Coughlin, 173 AD2d 992 [1991]). Moreover, the federal courts addressing the issue have held that a prison inmate in New York has no protected liberty interest in an unshielded cell (Demaio v Mann, 877 F Supp 89 [N.D. N.Y. 1995], affd 122 F3d 1055 [2005]; Kemp v LeClaire, 2007 WL 776416 [W.D.N.Y. 2007]; Breazil v Bartlett, 998 F Supp 236 [W.D. N.Y. 1997]; Beckford v Portuondo, 151 F2d 204 [N.D.N.Y. 2001]).