Opinion
# 2015-015-050 Claim No. 121829 Motion No. M-86096
04-22-2015
DAVID ZAIRE v. STATE OF NEW YORK
David Zaire, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General
Synopsis
Defendant's motion to dismiss the claim alleging violations of his constitutional right to freedom of religion and various other allegations was granted and the claim dismissed.
Case information
| UID: | 2015-015-050 |
| Claimant(s): | DAVID ZAIRE |
| Claimant short name: | ZAIRE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121829 |
| Motion number(s): | M-86096 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | David Zaire, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 22, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves to dismiss pursuant to CPLR 3211 (a) (2) , (7) and (8) on the grounds the claim fails to state a cause of action, asserts claims as to which the Court of Claims lacks jurisdiction, and is otherwise untimely.
Claimant, a pro se inmate, served a notice of intention to file a claim on January 9, 2012 in which he alleged the following:
"Unlawful discrimination based on religion, reprisals for grievance complaint filings; fraudulent charges of Department Rule violations resulting in unlawful punitive confinement and deprivation of privileges, denial of basic housing amenities and toiletries, meal deprivations, theft of personal effects and religious materials, and verbal threats of physical assault by correction staff persons at the Clinton Correctional Facility in Dannemora, New York" (defendant's Exhibit A).
Claimant alleged in the notice of intention that the claim arose on November 7, 2011 when a prison disciplinary determination was affirmed on administrative appeal.
Claimant alleges in his claim, filed on October 4, 2012, that he and other inmates were deprived of their right to observe Ramadan on August 12, 2011 when they were removed from the mosque before the completion of their prayers and the end of their fast at sundown in violation of prison protocol. Claimant protested the interruption and the inmates were ultimately allowed to "make their prayer and the evening went on without further incident" (defendant's Exhibit B, claim, ¶ 4, p. 2). Claimant alleges that he was "ambushed" in his housing block that evening, stating that he was pat-frisked and his personal papers and materials were confiscated. He also alleges that his Ramadan dinner meal and pre-dawn meal were taken (id. at p. 2, ¶ 5). Claimant alleges that he was the victim of cruel and unusual punishment when he was handcuffed and placed in a "chilly" cell without bed linens or toiletries (id. at p. 3, ¶ 6). He received a misbehavior report the following day, August 13, 2011, in which he was charged with six rule violations. Claimant alleges that as the result of Hearing Officer bias and various due process violations, he was found guilty of the charges and sentenced to nine months in the Special Housing Unit with loss of various privileges. He alleges that the Hearing Officer's determination was affirmed on November 7, 2011 following an administrative appeal.
Claimant next alleges that on August 25, 2011 he was forced to undress in the presence of a female officer despite his protests that such conduct violated his religious tenets (defendant's Exhibit B, claim, ¶ 8); that between December 30, 2011 and April 5, 2012, following his transfer to Southport Correctional Facility, he sent letters of complaint regarding various meal deprivations and filed a grievance regarding the issue on April 16, 2012; and, finally, that Southport personal grooming policies infringed upon his right to freedom of worship (defendant's Exhibit B, claim, ¶ 18).
Addressing first claimant's allegations that his right to religious freedom was violated, 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 individuals 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 humankind." However, it is well-settled that no claim for a violation of the claimant's federal constitutional rights is cognizable against the State in the Court of Claims (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 [3d Dept 2006]; Welch v State of New York, 286 AD2d 496 [2d Dept 2001]). Likewise, a cause of action for a violation of the State Constitution may give rise to a tort cause of action only where it is necessary to ensure the full realization of claimant's constitutional rights (Brown v State of New York, supra; Martinez v City of Schenectady, 97 NY2d 78, 83 [2003]). The remedy is a narrow one and may not be invoked where the claimant has an alternate avenue of redress (Martinez v City of Schenectady, 97 NY2d at 83; Flemming v State of New York, 120 AD3d 848, 849 [3d Dept 2014]; Waxter v State of New York, 33 AD3d 1180 [2d Dept 2006]; Bullard v State of New York, 307 AD2d 676 [3d Dept 2003]).
With regard to the instant matter, 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 [2d Dept 2000]; Jackson v Coughlin, 204 AD2d 939 [3d Dept 1994]). The statutory remedy for violations 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 alternative avenue of redress available pursuant to the Correction Law, 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.
To the extent the claim alleges due process violations in the manner in which the disciplinary hearing was conducted, the availability of a common law action for wrongful confinement renders a cause of action based upon a violation of the New York Constitution unnecessary (Flemming v State of New York, supra; Waxter v State of New York, supra). Claimant failed to state a cause of action for wrongful confinement, however, as he failed to allege that the charges against him were reversed or vacated. In fact, claimant alleges that the charges against him were affirmed on administrative appeal and it does not appear that he pursued relief in the Supreme Court under CPLR article 78. Inasmuch as adjudication of the wrongful confinement claim would require review of the underlying administrative determination, this Court lacks subject matter jurisdiction over the claim (see Matter of Gross v Perales, 72 NY2d 231 [1988]; Green v State of New York, 90 AD3d 1577 [4th Dept 2011], lv denied 18 NY3d 901 [2012]). As claimant is unable to relitigate the propriety of his punitive confinement in a claim for money damages in the Court of Claims (Lublin v State of New York, 135 Misc 2d 419, 420 [Ct Cl 1987], affd 135 AD2d 1155 [1st Dept 1987], lv denied 71 NY2d 802 [1988]), the claim must be dismissed to the extent it may be read to include a cause of action for wrongful confinement.
To the extent the claim asserts cruel and unusual punishment arising from the conditions of his cell, such a cause of action derives from the Eighth Amendment of the Federal Constitution, and section 3, article 1 of the New York State Constitution. As previously stated, this Court lacks jurisdiction over claims alleging a violation of the Federal Constitution. With respect to any alleged violation of the New York State Constitution, accepting as true the allegations in the claim and giving claimant the benefit of every favorable inference (Rodriguez v Jacoby & Meyers , LLP,126 AD3d 1183 [3d Dept 2015]), they are not so " 'barbarous' " or " 'shocking to the conscience' " to be termed cruel and unusual punishment (Wilkinson v Skinner, 34 NY2d 53, 60 [1974]).
Given this determination, the Court need not decide whether the time limitations of Court of Claims Act § 10 (3) or §10 (3-b) apply to claimant's cause of action for cruel and unusual punishment. If §10 (3-b) applies, defendant waived this defense by failing to raise it as a defense in its answer (Court of Claims Act § 11[c]). If Court of Claims §10 (3) applies, the cause of action may be time-barred if the allegations in claimant's notice of intention to file a claim are insufficiently specific to apprise the defendant of the nature of this claim (see defendant's Exhibit A; Markowitz v State of New York, 37 AD3d 1106 [4th Dept 2007]).
The remaining allegations in the claim involving meal deprivations fail to meet the pleading requirements of Court of Claims Act § 11 (b). This section requires the claim to set forth "the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed." Neither the dates claimant was deprived of meals nor the items of damage or injury claimed to have been sustained are set forth in the claim. As a result, the claim is jurisdictionally defective in this regard and must be dismissed (Morra v State of New York, 107 AD3d 1115 [3d Dept 2013]).
Similarly, the allegations in the claim relating to the confiscation of unspecified personal property were insufficiently specific to meet the pleading requirements of Court of Claims Act § 11 (b) and claimant failed to allege that he unsuccessfully exhausted his administrative remedies as required by Court of Claims Act § 10 (9).
Based on the foregoing, defendant's motion is granted and the claim is dismissed.
April 22, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
Papers considered:
Notice of Motion dated December 2, 2014;
Affirmation in Support of Motion to Dismiss dated December 2, 2014 with Exhibits A-C;
Unsworn statement in opposition to motion dated January 7, 2015.