Opinion
# 2017-044-012 Claim No. 125874
09-14-2017
JOHN LOPEZ v. THE STATE OF NEW YORK
JOHN LOPEZ, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Aaron J. Marcus, Assistant Attorney General
Synopsis
Claim for denial of access to courts, constitutional and civil right claims, assault and loss of property dismissed after trial for failure to set forth prima facie causes of action.
Case information
| UID: | 2017-044-012 |
| Claimant(s): | JOHN LOPEZ |
| Claimant short name: | LOPEZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has sua sponte amended the caption to reflect the State of New York as the sole proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125874 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | JOHN LOPEZ, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Aaron J. Marcus, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 14, 2017 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim to recover damages for various causes of action which allegedly accrued while he was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility (Elmira). Defendant State of New York (defendant) answered and asserted several affirmative defenses. A trial in this matter was conducted by video conference on September 14, 2017, with claimant appearing at Green Haven Correctional Facility, defendant at Elmira, and the Court sitting in Binghamton, New York.
In his claim, claimant alleged that on March 17, 2014 Correction Officer (CO) S. Lee gave him "legal [e]xhibits sheets" and told him he was not going to get 490 copies. Claimant further asserted that on March 20, 2014, Lee arrived at his cell and inquired what he needed notarized. Claimant alleged that when he told Lee he needed 46 notarizations, Lee told him he could have 5, but then only gave him 2. Claimant stated that on March 24, 2014, Lee again told him that he (Lee) was not going to provide 46 notarizations. Claimant asserted that he wrote letters of complaint and filed a grievance. He also noted that he later received notarizations on eight sets of motion papers.
Claim, ¶ 5. --------
At trial, claimant testified (with regard to the above allegations contained in his claim) that Lee appeared at his cell on March 20, 2014. Claimant said that when he told Lee that he needed 46 notarizations, Lee became unprofessional and swore at him. Claimant stated that Lee told him he could have six notarizations, but only gave him five. Claimant said that he filed a grievance, after which Deputy Superintendent Rose came to claimant's cell, apologized for Lee's behavior, and provided claimant with the 46 notarizations he had requested.
In his claim, claimant stated that on May 18, 2014, CO S. McMindes (who was filling in for Lee) delivered legal cases he allegedly requested from the law library. Claimant said that McMindes provided him with the wrong cases and when he called it to McMindes' attention, McMindes threw the papers through the feed up slot bars, hitting claimant in the face. Claimant alleged that he picked up the papers and handed them back to McMindes who then threw them through the cell bars and onto claimant's bed. Claimant said he filed a grievance and wrote letters of complaint. At trial, claimant testified only that McMindes refused to provide claimant with various law library materials.
Claimant made lengthy assertions in his claim regarding the destruction of legal materials. At trial, claimant stated only that some of his legal materials were lost or destroyed, without any further elucidation.
In his claim, claimant asserted that based upon the allegations of conduct set forth therein, his first, eighth, and fourteenth amendment rights were violated in that defendant did not take his legal matters seriously, and he was denied access to the institutional law library and the courts.
Claimant called no witnesses and rested his case at the close of his testimony.
Defendant called CO Lee to testify. Lee said that he has been the Law Library Supervisor at Elmira for eight or nine years. Lee recalled the incident described by claimant regarding the request for 46 notarizations. Lee said that he does provide notary services to inmates when requested. He said that he advised claimant he could do five notarizations at that moment, but would need to take the remaining documents back to the law library where he could sit at a table and notarize them, and then make the copies requested by claimant. Lee testified that claimant refused to allow Lee to take the papers. Lee said he provided claimant with five notarizations and continued about his business of providing law library services to other inmates. He said he has provided notary services for claimant both before and after that incident.
On cross-examination, claimant asked what Lee would do when requests are made for more than five notarizations. Lee responded that other inmates who requested 40 or 50 notarizations were amenable to Lee taking them back to the law library to sign at a table, rather than signing the papers by resting them on his leg. He said he never denied notary services to claimant or to other inmates. He agreed that there is no written policy limiting the number of notarizations to be provided to an inmate. Defendant rested its case at the close of Lee's testimony. The Court reserved decision.
To the extent that claimant may be alleging a violation of the Federal Constitution, the Court of Claims has no jurisdiction to consider Federal Constitutional claims, including civil rights violations brought under 42 USC § 1983 (see e.g. Brown v State of New York, 89 NY2d 172, 184-185 [1996]). Moreover, because claimant has an adequate remedy in the form of an inmate grievance and/or CPLR Article 78 proceeding in Supreme Court, this Court need not recognize a tort cause of action under the State Constitution (see Martinez v City of Schenectady, 97 NY2d 78 [2001]; Blake v State of New York, 145 AD3d 1336, 1337 [3d Dept 2016], lv denied 29 NY3d 908 [2017]).
To the extent that claimant is seeking to recover for being denied access to the courts, such a cause of action must be dismissed. First, it appears that claimant actually received the notarizations he requested, according to his testimony at trial. Moreover, "[a] cause of action for denial of access to the courts is based upon a violation of the Federal Constitution and must be pursued pursuant to 42 USC § 1983" (Gagne v State of New York, UID No. 2001-013-029 [Ct Cl, Patti, J., Nov. 30, 2001]; see Przesiek v State of New York, UID No. 2008-042-518 [Ct Cl, Siegel, J., Sept. 9, 2008]; see also Leach v Dufrain, 103 F Supp 2d 542 [ND NY 2000]). As set forth previously herein, the Court of Claims does not have jurisdiction to consider Federal Constitutional claims, including civil rights violations brought under 42 USC § 1983.
To the extent that claimant is seeking to recover monetary damages based upon the loss of his property, Court of Claims Act § 10 (9) provides that:
[a] claim of any inmate in the custody of . . . [DOCCS] for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within [120] days after the date on which the inmate has exhausted such remedy.
Although claimant alleged in his claim that he requested a property claim form with respect to his parcel of legal materials purportedly being confiscated and/or destroyed (Claim, ¶ 66), he did not indicate that he filed such an institutional property claim form or that he administratively appealed the decision. Further, claimant provided no specific testimony at trial regarding the loss of his property or regarding any institutional claim. Having failed to set forth a prima facie cause of action regarding this alleged loss, any cause of action for lost or destroyed property must be dismissed.
With regard to the extent that claimant may be asserting a cause of action for battery in the allegations set forth in the claim regarding McMindes' conduct, claimant is required to establish that there was bodily contact, which was offensive, that is "wrongful under all the circumstances" (Zgraggen v Wilsey, 200 AD2d 818, 819 [3d Dept 1994]), and that the assailant intended to cause such contact (see Messina v Alan Matarasso, M.D., F.A.C.S., P.C., 284 AD2d 32, 35-36 [1st Dept 2001]). It is not necessary for the assailant to intend to cause injury (Zgraggen, 200 AD2d at 819). While the lack of consent is considered when determining whether the contact was offensive, it is not conclusive (see Goff v Clarke, 302 AD2d 725, 726 [3d Dept 2003]; Zgraggen, 200 AD2d at 819). "Under the doctrine of respondeat superior, an employer may be vicariously liable for the tortious acts of its employees only if those acts were committed in furtherance of the employer's business and within the scope of employment" (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002]; see also Steinborn v Himmel, 9 AD3d 531, 532 [3d Dept 2004]).
Claimant did not testify at all regarding any allegations which could constitute a cause of action for battery. Accordingly, to the extent that such a cause of action was asserted, it is hereby dismissed.
Lastly, to the extent claimant might be alleging a violation of DOCCS Directive 4421 (7 NYCRR part 721) which governs the handling of an inmate's legal mail, such a cause of action also is not viable. Again, claimant provided no testimony at trial regarding any such violation, and to the extent that such a cause of action is being asserted it is hereby dismissed.
In conclusion, claimant failed to set forth a prima facie case for causes of action for denial of access to the courts, federal or state constitutional or civil rights claims, assault or loss/destruction of property, and Claim No. 125874 is hereby dismissed.
Let judgment be entered accordingly.
September 14, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims