Boggs v. State
| Decision Date | 09 December 2015 |
| Parties | Steven J. BOGGS, Claimant, v. The STATE of New York, Defendant. |
| Court | New York Court of Claims |
51 Misc.3d 376
25 N.Y.S.3d 545
Steven J. BOGGS, Claimant,
v.
The STATE of New York, Defendant.
Court of Claims of New York.
Dec. 9, 2015.
Steven J. Boggs, Pro Se, No Appearance, for Claimant.
Honorable Eric T. Schneiderman, Attorney General, By Michael T. Krenrich, Esquire, Assistant Attorney General, for Defendant.
FRANCIS T. COLLINS, J.
Defendant moves to dismiss the claim for lack of jurisdiction and failure to state a cause of action pursuant to CPLR 3211(a)(2), (7) and (8).
Claimant, an inmate proceeding pro se, seeks damages for cruel and unusual punishment arising from the alleged deliberate indifference of prison officials in failing to provide him with supplies to clean up raw sewage that spontaneously erupted from the toilet in his cell. Claimant alleges the incident occurred when he was confined to his cell in the Special Housing Unit of Great Meadow Correctional Facility for 23 hours per
day and that cleaning materials were not supplied for nearly 12 hours after the sewage erupted. Claimant alleges in pertinent part the following:
"5.) On the 5th day of July, 2012, at approximately 10:00 p.m., Claimant Steven J. Boggs was laying [sic ] on his bed in cell No. 11, F-company, at Great Meadow Correctional Facility reading a book when the toilet errupted [sic ] raw sewage and covered approximately 85% of the cell floor, the sight and stench was sickening.
6.) On the 5th day of July, 2012, the defendant had full visual and oral knowledge and refused to issue cleaning supplies after many requests from myself and a direct order from an area supervisor. I was not issued cleaning material until approximately 9:20 a.m. on the 6th day of July, 2012.
7.) As a result of this incident, claimant has suffered severe mental pain and anguish" (defendant's Exhibit A, Claim).
Defendant contends that the claim should be dismissed because this Court lacks jurisdiction over causes of action alleging violations of the Federal Constitution
and the claim fails to state a cause of action under the New York State Constitution. With respect to violations of the New York State Constitution, defendant contends, first, that such claims are limited to alleged violations of the Equal Protection and Search and Seizure Clauses of the State Constitution and, second, that no State constitutional claim lies where claimant has an adequate remedy in another forum, namely, either the Federal District Court or the New York State Supreme Court pursuant to 42 U.S.C. § 1983.
On a motion to dismiss a claim pursuant to CPLR 3211(a)(7) the court is required to "accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ; see also Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002] ). The determination is therefore made by reference to "whether the proponent of the pleading has a cause of action, not whether he has stated one" (Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511, quoting Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 [1977] ; see also Dee v. Rakower, 112 A.D.3d 204, 208, 976 N.Y.S.2d 470 [2d Dept.2013] ).
To the extent the claim rests on an alleged violation of the prohibition against cruel and unusual punishment contained in the Eighth Amendment to the Federal Constitution, the claim must be dismissed as the State is not a "person" within the meaning of the enabling legislation (42 U.S.C. § 1983 ) (Brown v. State of New York, 89 N.Y.2d 172, 185, 652 N.Y.S.2d 223, 674 N.E.2d 1129 [1996], citing Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 [1978] ; see also Flemming v. State of New York, 120 A.D.3d 848, 991 N.Y.S.2d 181 [3d Dept.2014] ; Shelton v. New York State Liq. Auth., 61 A.D.3d 1145, 878 N.Y.S.2d 212 [3d Dept.2009] ; Markowitz v. State of New York, 37 A.D.3d 1106, 831 N.Y.S.2d 302 [4th Dept.2007] ; Matter of Gable Transp., Inc. v. State of New York, 29 A.D.3d 1125, 815 N.Y.S.2d 299 [3d Dept.2006] ; Welch v. State of New York, 286 A.D.2d 496, 729 N.Y.S.2d 527 [2d Dept.2001] ).
The claim may also be read as alleging a violation of the New York State Constitution. The criteria for determining whether a violation of the New York State Constitution may form the basis for a tort cause of action was set forth in the seminal case of Brown v. State of New York, 89 N.Y.2d 172, 652 N.Y.S.2d 223, 674 N.E.2d 1129. The applicable constitutional provision must be self-executing, i.e., it must take effect immediately, without the need for enabling legislation (id. at 186, 652 N.Y.S.2d 223, 674 N.E.2d 1129 ), and a damage remedy must further the purpose of the underlying constitutional provision and be necessary to assure its effectiveness (id.;see also Martinez v. City of Schenectady, 97 N.Y.2d 78, 83, 735 N.Y.S.2d 868, 761 N.E.2d 560 [2001] ). As noted in Brown, the provisions of the State Constitution are presumptively self-executing (id. ) and while there exists no appellate authority concluding that New York State's constitutional provision prohibiting cruel and unusual punishment may form the basis for a tort cause of action, several decisions of the Court of Claims have acknowledged the potential viability of such a claim (see Thomas v. State of New York, 10 Misc.3d 1072[A], 2005 WL 3681655 [Ct.Cl.2005] ; Zulu v. State of New York, UID No.2001–013–006, 2001 WL 880833 [Ct.Cl., Patti, J., May 21, 2001] ; Ramos v. State of
New York, UID No.2000–016–106 [Ct.Cl., Marin, J., Dec. 18, 2000]; De La Rosa v. State of New York, 173 Misc.2d 1007, 662 N.Y.S.2d 921 [Ct.Cl.1997] ). Moreover, in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) the Supreme Court recognized a damages cause of action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the federal counterpart to a Brown cause of action, premised upon an alleged violation of the Eighth Amendment. In doing so, the Court found that the case involved no special factors that counseled hesitation and that the existing statutory
remedy under the Federal Tort Claims Act was inadequate.1 Here, defendant has likewise identified no special factors that counsel hesitation. Inasmuch as case law supports the view that the State Constitution's prohibition against cruel and inhuman punishment (article 1, § 5 ), like the Eighth Amendment of the Federal Constitution, may form the basis for a constitutional tort cause of action, defendant's contrary contention is rejected.
Defendant's second argument, that an action pursuant to 42 U.S.C. § 1983 is an adequate alternative remedy, is directly contradicted by the holding of the Court of Appeals in Brown. Notwithstanding the existence of a pending § 1983 action against the potentially responsible individuals in Brown, 89 N.Y.2d at 211, 652 N.Y.S.2d 223, 674 N.E.2d 1129, the Court found recognition of a constitutional tort cause of action necessary to ensure the full realization of the claimant's constitutional rights under the Search and Seizure and Equal Protection Clauses of the State Constitution. In so doing, the Court explicitly acknowledged the availability of a damage remedy for violations of the State Constitution under § 1983, as well as the Federal Constitution pursuant to Bivens, but found them unavailing.
Addressing the dissent's criticism that such a tort cause of action creates new respondeat superior liability against the State contrary to the holding of Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Court made clear its view that it was the Court of Claims Act (§§ 8, 9[2] ), not the Court, that imposed upon the State vicarious liability for the conduct of its employees (Brown, 89 N.Y.2d at 193–194, 652 N.Y.S.2d 223, 674 N.E.2d 1129 ).2 The...
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