New York State Court of Claims

New York State Court of Claims

ZULU v. THE STATE OF NEW YORK, #2001-013-006, Claim No. 96973 & 96974, Motion No. M-63183 & M-63184


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96973 & 96974
Motion number(s):
M-63183 & M-63184
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 21, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate, enrolled in a drafting class at Orleans Correctional Facility. In Claim No. 96973, he alleges that his instructor and several fellow students violated prison regulations by smoking in class. In Claim No. 96974, Claimant alleges that his drafting class instructor filed a false and negative Inmate Progress Report in retaliation for his complaints about smoking. The question I must decide is whether the claims state causes of action. On April 18, 2001, I considered the following papers regarding the Defendant's motions to dismiss:

Motion No. M-63183 - Claim No. 96973:

1. Notice of Motion
2. Affirmation in Support and Annexed Exhibit
3. Affidavit in Response and Annexed Exhibits
4. Reply Affirmation in Support of Motion and Annexed Exhibit (same document submitted as reply in both motions)

Motion No. M-63184 - Claim No. 96974:

1. Notice of Motion
2. Affirmation in Support and Annexed Exhibits
3. Affidavit in Response
4. Reply Affirmation in Support of Motion and Annexed Exhibit (same as document number "4" above)

For the reasons set forth below, I conclude that both claims should be dismissed.

Alleged Violations of Smoking Regulations
Claimant alleges that Defendant is liable to him in damages because it: (1) failed to fulfill unspecified duties; (2) violated Claimant's due process, equal protection, and free expression rights under the New York State Constitution; (3) discriminated against him because he was either a black person or a prisoner; and (4) failed to properly train and/or supervise its officers or employees.

The statutory claim, Defendant argues, should be dismissed because noncompliance with the New York State Clean Indoor Air Act (Public Health Law, Article 13-E) or correctional facility smoking regulations does not give rise to a cause of action in tort, and there is no general duty on the part of the State to provide inmates with a smoke-free environment. I agree. The statutory claim is therefore dismissed (see, Public Health Law §1399-w; Matter of Alamin v New York State Department of Correctional Services, 241 AD2d 586; Rawlings v State of New York, Ct Cl, April 26, 1999 [Claim No. 96967], McNamara, J.; Gill v State of New York, Dec. 22, 1999 [Claim No. 93402], Marin, J.; Gerard v State of New York Department of Correctional Services, Ct Cl, March 17, 2000 [Claim No. 100949, Motion No. M-60867], Midey, J.).

This brings me to Claimant's constitutional claims. A cause of action in tort may sometimes arise under the New York State Constitution when: (1) the constitutional provision is self-executing; (2) the substantive right is firmly established; (3) the implied tort is necessary or appropriate to ensure the effectiveness of the provision; and (4) the claimant has no common law or statutory remedy available to him (see, Brown v State of New York, 89 NY2d 172; Remley v State of New York, 174 Misc 2d 523, 526). But caution should be exercised in recognizing a tort claim based upon the violation of constitutional "rights." In comparison to the Federal Constitution, the State Constitution "touch[es] on subjects and concerns with less attention to any hierarchy of values, and... concededly contains references to matters which could as well have been left to statutory articulation" (Board of Education, Levittown Union Free School District v Nyquist, 57 NY2d 27, 43 n.5, appeal dismissed 459 US 1138).

Though Claimant has incorporated a laundry list of alleged State constitutional violations into his claims, the only right plausibly implicated by the factual allegations in his smoking claim is Article I, §5, which prohibits cruel and unusual punishment. Added to the State Constitution in 1846, the cruel and unusual punishment clause was copied from, and shares a common heritage with, the Eighth Amendment to the United States Constitution (People v Broadie, 37 NY2d 100, 123, cert denied 423 US 950).

"It is commonly accepted that in adopting the language of the English Bill of Rights and incorporating it in the Eighth Amendment, the framers intended primarily to prohibit torture and other barbaric punishments" (People v Broadie, supra at 120). Over the years, however, the United States Supreme Court adopted a more expansive view of the scope of the protection the Eighth Amendment provides (see, De Shaney vWinnebago County Dept. of Social Services, 489 US 189, 199-200 ["when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs -- e.g., food, clothing, shelter, medical care and reasonable safety -- it transgresses the substantive limits on state action set by the Eighth Amendment"]).

Under Section 1983, an inmate states a cause of action for violations of the Eighth Amendment[1] when he alleges: (1) that prison officials have, with deliberate indifference, exposed him to levels of environmental tobacco smoke that pose an unreasonable risk of serious damage to his future health, or (2) that exposure to environmental tobacco smoke is having serious effects on the present state of his health (see, Helling v McKinney, 509 US 25; Henderson v Sheahan, 196 F3d 839, cert denied 530 US 1244; 42 USC §1983).

If the Court of Appeals recognized a state constitutional tort for cruel and unusual punishment and interpreted it as expansively as the Eighth Amendment, this claim would nevertheless have to be dismissed. Claimant does not allege that the second-hand smoke he experienced had or could have a serious effect on his present or future health. The symptoms he described --burning eyes, nausea, headaches and vomiting --while certainly uncomfortable and annoying, do not constitute the type of serious health threat found to have constitutional dimensions (see, Henderson v Sheahan, supra, at 846 [dismissing claim alleging "breathing problems, chest pains, dizziness, sinus problems, headaches and loss of energy"]; Oliver v Deen, 77 F3d 156 [dismissing claims of a "mild asthmatic" who alleged that environmental tobacco smoke aggravated his "wheezing, shortness of breath, dizziness, and... nausea"]).

Claim No. 96973 is therefore dismissed

"False and Negative" Inmate Progress Report

In a prior order denying Claimant leave to amend his claim, Judge Lane suggested that the claim had no merit and that leave to amend should be denied because the claim should have been brought as an Article 78 proceeding (see, Zulu v State of New York, Ct Cl, Feb 9, 2000 [Claim Nos. 96972, 96973 and 96974, Motion No. M-60676], Lane, J.). Defendant urges that the initial (and present) claim, like the proposed amended claim rejected by Judge Lane, suffers from the same defect.

I agree that Claimant has no redress in this Court for alleged falsities included in his Inmate Progress Report. If he believed that the report was false or that the instructor negatively evaluated his performance for an improper reason, then Claimant's remedy was to file an inmate grievance and to pursue it, if necessary, to the Superintendent and the Central Office Review Committee (see, 7 NYCRR 701.7). If he was unhappy with the results of the grievance process, it was incumbent upon him to commence at Article 78 proceeding (see, CPLR 7801 et seq.; 7 NYCRR 701.1, et seq.; see also, Moates v State of New York, Ct Cl, Sept. 25, 2000 [Claim No. 99875 - Motion Nos. M-61714 and M-61565], Fitzpatrick, J.[Article 78 proceeding should have been filed where inmate alleged that officers retaliated against him by searching his cell, confiscating his property, and subjecting him to unwarranted discipline]). Since this Court is not the proper forum to adjudicate these issues, Claim No. 96974 fails to state a cause of action. It is therefore dismissed.

May 21, 2001
Rochester, New York

Judge of the Court of Claims

  1. [1]This Court does not have jurisdiction over federal constitutional tort claims (Zagarella v State of New York, 149 AD2d 503; Ferrick v State of New York, 198 AD2d 822).