New York State Court of Claims

New York State Court of Claims
LARABY v. THE STATE OF NEW YORK, # 2010-015-508, Claim No. 113283


Inmate's claim for harassment and physical abuse due to religious affiliation was dismissed.

Case information

UID: 2010-015-508
Claimant(s): EDWARD LARABY
Claimant short name: LARABY
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113283
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Edward Laraby, Pro Se
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Stephen Maher, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: February 23, 2010
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, a pro se inmate, alleges he was harassed and physically abused by correction officers at Great Meadow Correctional Facility based upon his religious affiliation. The claim proceeded to trial on December 2, 2009.

In his claim the claimant alleges he is a member of the Rastafarian religion and that in November, 2006 he possessed a permit exempting him on religious grounds from the Department of Correctional Services (DOCS) requirement that inmates' beards should not exceed one inch in length. On November 21, 2006 he alleges he was accosted by Correction Officers (CO) Clark and Patnode and physically abused during a pat frisk in the rotunda at Great Meadow Correctional Facility. Claimant alleges in the claim that CO Patnode "made harassing gestures, as well as inappropriate remarks about his religion" (Claim, par. 6). The claim goes on to allege that he was again accosted later that day by CO Patnode and two other unidentified correction officers. The claim alleges the claimant was verbally assaulted and physically abused during a pat frisk.

At trial claimant testified that CO Patnode made disparaging remarks regarding his religion on the morning of November 21, 2006. According to the claimant, CO Patnode asked the claimant what his religion was and whether he was "a n - - -er or if I just wanted to be one." Later that same day, during the course of a normal pat frisk, one of the COs involved placed a baton behind the claimant's head and pushed his head into a wall. Claimant also alleged at trial that he was struck in the testicles by an officer wielding a baton during the course of the pat frisk. Claimant did not suffer any injuries and sought no medical treatment. Claimant stated that at the time of the incidents he possessed a permit allowing him to grow his beard over the normal one inch limit permitted by DOCS.

The claimant testified that on November 28, 2006 he was interviewed by Lieutenant Smith regarding his complaints concerning the events of November 21, 2006. Claimant testified that the Lieutenant suggested that he would not have these sorts of problems at Great Meadow if he simply cut his beard.

On cross-examination claimant testified that he received a beard exemption permit from the Department of Correctional Services in 2006 and he displayed the permit and a pass authorizing his movement through the area to COs at the time he was accosted.

The defendant called Lieutenant Kevin Smith to the stand who testified that he was a Lieutenant/Watch Commander at Great Meadow Correctional Facility in 2006. Lieutenant Smith was familiar with claimant's complaints regarding religious discrimination and harassment and testified that he investigated the complaints and prepared a report dated December 15, 2006 (Exhibit A). As part of his investigation the witness interviewed the claimant and Correction Officers Patnode and Clark. Patnode and Clark also prepared to/from memoranda regarding the incident (see Exhibit A). Lieutenant Smith testified that following his investigation he concluded that it was appropriate for the correction officers involved to request proof that the claimant possessed a beard permit and to inquire as to the claimant's religion if no permit was produced. He noted that Directive 4914 requires that inmates possessing beard permits carry the permits on their persons. He could not recall whether the claimant alleged that he had been struck by the COs during a pat frisk, although he noted that the letter of complaint received from the claimant on November 27, 2006 makes no mention of such an incident.

According to Lieutenant Smith, the Great Meadow Correctional Facility rotunda is a large rectangular area located in the center portion of the facility. Inmates are required to carry identification when transiting through the rotunda and should also have a callout form authorizing their movement through the area. Correction officers are expected to review inmate identification and callout passes as well as permits such as the claimant's beard permit while in the rotunda. It is not unusual for inmates to be pat frisked while in the rotunda and random pat frisks are permitted pursuant to Directive 4910.

On cross-examination Lieutenant Smith did not recall saying to the claimant during his interview that the claimant would not have problems at Great Meadow if he simply shaved his beard.

The Court of Appeals made clear in Matter of Rivera v Smith (63 NY2d 501 [1984]) that while an inmate loses many of the rights and privileges he or she enjoyed prior to incarceration, the right to religious freedom is not one of them. Indeed, both the Federal and State Constitutions preserve an individual's right to the free exercise of religion. The first amendment of the Federal Constitution maintains an individual's right to free exercise of religion and section 3 of article I of the New York State Constitution provides that "[t]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all mankind". To the extent a cause of action arising out of a violation of the Federal Constitution could be inferred from the claim, however, it is well settled that the State is not a "person" amenable to suit under 42 USC 1983, the enabling statute for constitutional violations (Brown v State of New York, 89 NY2d 172, 184-185 [1996]; Will v Michigan Dept. of State Police, 491 US 58 [1989]; Matter of Gable Transp., Inc. v State of New York, 29 AD3d 1125 [2006]; Welch v State of New York, 286 AD2d 496 [2001]).

Equally well settled is the principle that a cause of action for a violation of the New York State Constitution may give rise to a tort cause of action only where it is necessary to ensure the full realization of the claimant's constitutional rights (Brown v State of New York, (supra); Martinez v City of Schenectady, 97 NY2d 78, 83 [2003]). The right is a narrow one, however, and may not be invoked where, as here, 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]). As noted by the Court of Appeals in Matter of Rivera (supra), the right to the free exercise of religion has been extended to inmates pursuant to Correction Law 610 (1) (see also Matter of Cancel v Goord, 278 AD2d 321, 322 [2000]; Jackson v Coughlin, 204 AD2d 939 [1994]). The relief available pursuant to the statute is limited, however, to "proceedings in the supreme court of the district where such institution is situated, which is hereby authorized and empowered to enforce the provisions of this section" (Correction Law 610 [3]). Given the availability of this alternative avenue of redress, the Court does not find that an action for money damages in the Court of Claims is necessary to ensure the full realization of claimant's constitutional rights .

With respect to the claim that the claimant was subjected to physical abuse at the hands of correction officers, the law is well settled that the State is not immune from liability for injuries which result when an officer uses more force than is necessary to perform his or her duty (Arteaga v State of New York, 72 NY2d 212, 220-221 [1988]; Jones v State of New York, 33 NY2d 275 [1973]; Stein v State of New York, 53 AD2d 988 [1976]; Shirvanion v State of New York, 64 AD3d 1113 [2009]; Bush v State of New York, 57 AD3d 1066 [2008]; Passino v State of New York, 260 AD2d 915, 916 [1999], lv denied 93 NY2d 814 [1999]).(1) Based on the evidence adduced at trial, the Court cannot conclude that excessive force was used.

Claimant testified that during the course of a pat frisk on November 21, 2006 a correction officer placed a baton behind his head and pushed his head into the wall. Claimant also testified that one of the officers struck his testicles with a baton. These specific allegations are conspicuously absent from the claimant's letter dated November 27, 2006 in which he memorialized his complaints of religious discrimination (Exhibit A) and claimant admittedly suffered no injuries and sought no medical treatment. Under these circumstances, the Court can only conclude that no excessive force was used during the course of the pat frisk. Rather, the evidence is more consistent with the conclusion reached by Lieutenant Smith that Correction Officers Patnode and Clark merely questioned the claimant regarding his religious affiliation upon his failure to produce a permit for his beard.

Based on the foregoing, the claim is dismissed.

Let judgment be entered accordingly.

February 23, 2010

Saratoga Springs, New York


Judge of the Court of Claims

1. This standard is consistent with the rules and regulations governing the use of physical force, which permit "only such degree of force as is reasonably required" (7 NYCRR 251-1.2 [b]).