Defendant's cross motion to dismiss the claim for lack of jurisdiction granted. The Court lacks jurisdiction over the causes of action alleging violations of claimant's federal and state constitutional rights, and, insofar as the claim asserts a claim for lost personal property, claimant failed to exhaust his administrative remedies prior to filing the claim as required by Court of Claims Act § 10 (9). Claimant's motion to compel discovery responses denied as moot.
|Claimant(s):||ANTHONY CRISCUOLO (14-A-3434)|
|Claimant short name:||CRISCUOLO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-95070, CM-95384|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||ANTHONY CRISCUOLO, pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: J. Gardner Ryan, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 10, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for (1) the alleged violation of his constitutional rights to due process and free exercise of religion, and (2) items of personal property that were confiscated during a search of his cell at Green Haven Correctional Facility (CF) on April 28, 2016. Claimant now moves to compel defendant to respond to certain discovery demands. Defendant does not oppose the motion but cross-moves to dismiss the claim on jurisdictional grounds. Claimant opposes the cross motion.
The claim alleges that on April 28, 2016, "two investigators, from 'OSI' " searched claimant's cell in the Green Haven CF Protective Custody Unit (Claim No. 132507, ¶ 4). The claim alleges that the search commenced at approximately 3:00 p.m. and lasted about one and a half hours (see id. at ¶ 5). The claim alleges that claimant was then escorted to an interview room for an interrogation, during which claimant learned that the search was based on a confidential tip that claimant possessed "incriminating photographs" related to his criminal conviction (id. at ¶ 6). The claim alleges that when claimant returned to his cell following the interrogation, "he noticed that all of his legal documents were flung haphazardly around his cell," and "that incredibly sensitive legal documents . . sent to him by his attorney" that were "crucial to his pending post conviction motion" were missing (id. at ¶¶ 7-8). The claim further alleges that claimant's Bible, "passed down to him by [two] family generations, and holding at the least, a great deal of sentimental value, as a family heirloom," as well as photographs and letters, were also missing (id. at ¶ 9). The claim alleges that the "cell search receipt . . . acknowledged the removal of the . . . Bible" and the letters and photographs (id. at ¶ 10).
The claim alleges that after making written inquiries with respect to the confiscated items, claimant filed inmate grievances on June 16, 2016, February 13, 2017, and June 22, 2017, but he received no response (see id. at ¶¶ 11-12). The claim further alleges that claimant filed a fourth inmate grievance on December 30, 2018 after receiving a response to a FOIL inquiry (see id. at ¶ 13). The claim alleges causes of action for violation of claimant's constitutional and statutory rights to free exercise of religion, his constitutional right to due process, and negligence (see id. at ¶¶ 14-20) and seeks damages for the "mental pain and anguish" caused by the loss of his Bible, photographs, and legal documents (id. at ¶ 23; see id. at ¶ 24).
The Court will first address defendant's cross motion inasmuch as it implicates the Court's jurisdiction to entertain the claim. Defendant argues that this Court lacks jurisdiction over the causes of action for violation of claimant's free exercise and due process rights because claimant has a number of other remedies available, including a 42 USC § 1983 action in federal court or state Supreme Court, a CPLR article 78 proceeding in Supreme Court to review the final determinations with respect to his inmate grievances, or an action in Supreme Court under Correction Law § 610 (3) (see Ryan Affirmation, ¶¶ 9-12). Defendant further argues that, to the extent the claim can be construed as asserting a cause of action for loss of personal property pursuant to Court of Claims Act § 10 (9), claimant has failed to exhaust his administrative remedies prior to filing this claim, and it must be dismissed (see id. at ¶¶ 13-18).
With respect to defendant's argument that the Court lacks subject matter jurisdiction over his constitutional claims, claimant argues that he cannot bring a lawsuit against the individual officers who conducted the cell search because their names are not legible on the cell search receipt and thus they cannot be identified (see Criscuolo Affidavit in Support Opposing Defendant's Cross Motion to Dismiss, ¶ 24). Claimant argues that this Court has jurisdiction over his claim insofar as it asserts violations of his State constitutional rights, that this claim "is not barred by 42 U.S.C. 1983 because the bible wasn't the only piece of confiscated property," and that he has no alternative remedies available (id. at ¶¶ 29-30).(1)
In opposition to defendant's cross motion to dismiss the personal property claim on the ground that claimant failed to exhaust his administrative remedies, claimant argues that he exhausted his administrative remedies prior to filing this claim inasmuch as he filed an institutional claim with the facility on June 16, 2016, but he was unable to pursue that claim because he does not have receipts for the allegedly confiscated items (see id. at ¶¶ 5-8, 18). Claimant further states that he wrote to OSI several times to request the return of his confiscated property and filed additional institutional grievances on February 13, 2017 and June 22, 2017, but he never received a response to his correspondence or grievances (see id. at ¶¶ 9-12). Claimant states that on December 28, 2018, he received a response to his FOIL inquiry from OSI "stating that they knew nothing of any search or confiscation of any property from . . . claimant on April 28, 2016" (id. at ¶ 13), and that he filed another grievance on December 28, 2018 and filed this claim dated January 1, 2019 (see id. at ¶ 14). Claimant argues that judicial intervention has become necessary because he has gone "above and beyond in exhausting every available administrative remedy" (id. at ¶ 18) by filing his various institutional grievances (see id. at ¶¶ 32-39).(2) In a supplemental submission in opposition to the cross motion, claimant argues that his claim was timely because the January 29, 2019 response to his FOIL appeal, in which FOIL Appeals Officer Michelle L. Liberty stated that OSI possessed no records related to a search of claimant's cell in April 2016, showed that "[a]t no other time before this did [he] have a true cause of action to persue [sic] in any Court" (Criscuolo Supplemental Affidavit, ¶ 6; see id., Exhibit A). Claimant further argues that defendant should be equitably estopped from arguing that his claim was untimely because defendant purposely failed to respond to his FOIL requests related to the April 2016 search of his cell in order to prevent him from filing a claim (see id. at ¶¶ 8-10). Claimant argues that, in any event, as argued in his initial opposition to the cross motion, the Court should deny defendant's cross motion because claimant "has clearly gone above and beyond in his due diligence" in filing the claim (id. at ¶ 11).(3)
Defendant's cross motion to dismiss will be granted with respect to the claims that defendant's agents violated claimant's free exercise and due process rights when they confiscated his Bible and other personal possessions (see Claim No. 132507, ¶ 16). First, to the extent claimant may be attempting to vindicate his free exercise and due process rights under the federal constitution, this Court lacks jurisdiction over federal constitutional claims, which must be brought in federal court pursuant to 42 USC § 1983 (see Brown v State of New York, 89 NY2d 172, 184-185 ; Lyles v State of New York, 2 AD3d 694, 696 [2d Dept 2003], affd 3 NY3d 396 ).
To the extent the claim asserts a cause of action sounding in state constitutional tort, it is well settled that a state constitutional tort is a "narrow remedy" (Brown, 89 NY2d at 192) that may be pursued only where it is "necessary to effectuate the purposes of the State constitutional protections [claimant] invokes" and "appropriate to ensure the full realization of [claimant's] rights" (Martinez v City of Schenectady, 97 NY2d 78, 83 ; see Brown, 89 NY2d at 186-188), and it is not available when another remedy is available to enforce the claimed constitutional right (see Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 679 [3d Dept 2003]).
With respect to the alleged violation of claimant's free exercise right, although the "free exercise right" guaranteed under the State constitution (see NY Const, art I, § 3) "has expressly been extended to those incarcerated in New York correctional facilities by [Correction Law § 610]" (Matter of Rivera v Smith, 63 NY2d 501, 510 ), pursuant to Correction Law § 610, inmates alleging religious discrimination "may institute 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  [emphasis added]). Because claimant was required to file a proceeding in Supreme Court to enforce his State constitutional right to free exercise of religion, this Court lacks jurisdiction over that claim, and it must be dismissed. Moreover, with respect to the alleged violation of claimant's State constitutional due process right, as noted above, that cause of action may not be asserted in the Court of Claims where an alternative remedy is available. Here, claimant may seek to enforce his due process right in federal court in an action pursuant to 42 USC § 1983 (see Rodriguez v State of New York, UID No. 2013-038-555 [Ct Cl, DeBow, J., Sept. 17, 2013]; Pride v State of New York, UID No. 2012-040-067 [Ct Cl, McCarthy, J., Aug. 14, 2012]), and the claim must be dismissed.
Turning next to defendant's argument that claimant's cause of action for lost personal property must be dismissed,(4) Court of Claims Act § 10 (9) states that "[a] claim of any inmate in the custody of the department of corrections and community supervision for recovery of damages for . . . 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" (emphasis added). Department of Corrections and Community Supervision (DOCCS) regulations provide for "a two-tier system of administrative review for inmate personal property claims," consisting of an initial review and then an administrative appeal "[i]f an inmate desires further review" (7 NYCRR 1700.3). All lost property claims by inmates in DOCCS custody "must be filed and served within  days after the date on which the inmate has exhausted such remedy" (Court of Claims Act § 10 ). The failure to exhaust the available administrative remedies deprives the Court of Claims of subject matter jurisdiction and requires dismissal of the claim (see Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007]).
Here, defendant submits in support of its cross motion to dismiss the affidavit of Correction Officer (CO) David Smith, who avers that he is the Facility Claims Officer at Green Haven CF and that it is his responsibility to "keep and maintain Green Haven [CF's] written chronological log of inmate personal property claims" (Smith Affidavit, ¶ 3). CO Smith explains that "[w]hen a timely property claim is received from an inmate, [he] assign[s] it a claim number and enter[s] it on the chronological log for investigation and resolution" (id.). CO Smith avers that he has "researched whether a property loss claim was filed by [claimant] as a result of the loss, injury or seizure of his personal property on April 28, 2016," but that he "ha[s] found no entry or record of a personal property claim being made by [claimant]," and CO Smith "confirm[s] that no timely personal property loss claim was filed by [claimant]" (id. at ¶¶ 4-5).
In opposition to defendant's cross motion to dismiss, claimant argues, as summarized above, that he filed several grievances with respect to the April 28, 2016 search of his cell at Green Haven CF. Claimant has submitted as exhibits to his opposition papers a copy of the December 28, 2018 letter he wrote to the grievance officer at Green Haven CF stating that it was his fourth grievance related to the April 28, 2016 cell search and requesting the return of his personal property (see Criscuolo Affidavit, Exhibit E), and a copy of the January 14, 2019 grievance seeking the return of his Bible (see id., Exhibit F). Notably, claimant was informed in response to that grievance that "[l]oss/damage of personal property can be addressed by utilizing the Inmate Property Claim mechanism in accordance with Directive #2733" (id.).
As discussed above, Court of Claims Act § 10 (9) prohibits an inmate from filing a lost property claim "unless and until the inmate has exhausted the personal property claims administrative remedy, established . . . by [DOCCS]," and the failure to do so deprives the Court of subject matter jurisdiction (see Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007]). Here, defendant has demonstrated that claimant failed to exhaust his administrative remedies prior to filing this lost property claim, and claimant has failed to rebut that showing. Although claimant may have filed a number of grievances with respect to the confiscation of his property during the April 28, 2016 cell search, he did not file an institutional inmate property claim, and thus this claim must be dismissed for failure to exhaust his administrative remedies.
In light of the foregoing, claimant's motion (M-95070) to compel the production of certain items of discovery will be denied as moot.
Accordingly, it is
ORDERED, that defendant's cross motion number CM-95384 is GRANTED, and claim number 131507 is DISMISSED; and it is further
ORDERED, that claimant's motion number M-95070 is DENIED as moot.
July 10, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 132507, filed January 10, 2019;
2. Verified Answer, filed January 30, 2019;
3. Notice of Motion (M-95070), dated December 4, 2019;
4. Demand for Discovery and Demand for Admission, dated June 9, 2019, with unenumerated exhibits;
5. Notice of Cross Motion to Dismiss (CM-95384), dated February 28, 2020;
6. Affirmation of J. Gardner Ryan, AAG, dated February 28, 2020, with Exhibits 1-2;
7. Affidavit of Correction Officer David Smith, sworn to February 28, 2020;
8. Affidavit of Anthony Criscuolo in Support Opposing Defendant's Cross Motion to Dismiss, sworn to April 3, 2020, with Exhibits A-F;
9. Affidavit of Anthony Criscuolo in Support Requesting Leave to File a Supplemental Motion and Affidavit in Support Opposing Defendant's Cross-Motion to Dismiss, dated April 7, 2020, with Exhibit A.
1. Claimant also argues that that this claim accrued on December 28, 2018 because that was the date he "received a direct response from O.S.I. . . . denying their involvement in any search or confiscation of property on April 28, 2016" (id. at ¶ 20; see id. at ¶ 24), and that his claim is thus timely, having been filed and served within ninety days of that date (see id. at ¶ 40). Claimant argues that "any time before this date [he] had no cause of action because he was under the impression that O.S.I.'s investigation may still be ongoing" (id. at ¶ 21). Although this argument is apparently made in response to defendant's assertion in its cross motion to dismiss that "[n]o date is specified in the claim for the accrual of any potential cause of action being asserted" (Ryan Affirmation, ¶ 7), defendant has not moved to dismiss the claim on timeliness grounds, and the Court need not address the issue of the accrual date of this claim.
2. Claimant also states that he filed another grievance on January 14, 2019 after a conversation with the new Green Haven CF superintendent, Superintendent LaManna, and that he received a response informing him that he needed to address OSI in order to have his seized property returned (see Criscuolo Affidavit in Support Opposing Defendant's Cross Motion to Dismiss, ¶¶ 15-16). However, any further administrative action claimant took after filing this claim is irrelevant to whether he exhausted his administrative remedies prior to filing this claim.
3. Claimant's supplemental affidavit in opposition to the cross motion is lacking in evidentiary value inasmuch as it is unsworn, and claimant - who is a party - is not authorized to submit an affirmation in lieu of affidavit (see CPLR 2106; see also Discovision Assoc. v Fuji Photo Film Co., Ltd., 71 AD3d 488, 489 [1st Dept 2010] ["in New York State court, . . . if (the parties) do not submit affidavits, they must comply with CPLR 2106"]; see Tafari v State of New York, UID No. 2016-038-501 [Ct Cl, DeBow, J., Jan. 14, 2016]). Claimant's arguments in his supplemental affidavit that the doctrines of equitable tolling and equitable estoppel prevent defendant from pleading a statute of limitations defense is inapposite inasmuch as defendant has not sought dismissal on that ground.
4. Although claimant frames this claim as one sounding in negligence, in substance it asserts a cause of action for lost property pursuant to Court of Claims Act § 10 (9) (see Ryan Affirmation, ¶ 13). As discussed below, this claim is untimely, and claimant cannot avoid dismissal by characterizing it as one sounding in negligence.