Opinion
12-22-2016
Arthur BLAKE, Appellant, v. STATE of New York, Respondent.
Arthur Blake, Coxsackie, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Arthur Blake, Coxsackie, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Before: GARRY, J.P., EGAN JR., CLARK and MULVEY, JJ.
EGAN JR., J.Appeal from an order of the Court of Claims (Collins, J.), entered November 13, 2015, which granted defendant's motion to dismiss the claim.
Claimant, a prison inmate, commenced this action alleging that prison staff prohibited the availability of legal material that impeded his access to the courts, denied him due process in challenging his improper removal from his program assignment, threatened him for filing grievances and retaliated against him by compromising his ability to file grievances through the facility mail system. Defendant answered and then moved to dismiss the claim for lack of jurisdiction and failure to state a cause of action. The Court of Claims granted defendant's motion, and this appeal ensued.We affirm. Although the claim was characterized as one for money damages, a review of the claim discloses that claimant was essentially seeking judicial review of actions by prison officials regarding the conditions of his confinement, including the denial of access to legal material, the breach of confidentiality rules regarding grievance matters and interference with the filing of grievances. As alternative remedies are available to address these issues—including the grievance process, a CPLR article 78 proceeding or an action in the nature of mandamus—such claims were properly dismissed (see Flemming v. State of New York, 120 A.D.3d 848, 849, 991 N.Y.S.2d 181 [2014] ; Deleon v. State of New York, 64 A.D.3d 840, 840–841, 882 N.Y.S.2d 351 [2009], lv. denied 13 N.Y.3d 712, 2009 WL 4250814 [2009] ; Matter of Salahuddin v. Connell, 53 A.D.3d 898, 900, 861 N.Y.S.2d 850 [2008] ). Furthermore, recognition of the state constitutional tort claims are unnecessary given the additional avenues of redress that are available (see Martinez v. City of Schenectady, 97 N.Y.2d 78, 83, 735 N.Y.S.2d 868, 761 N.E.2d 560 [2001] ; Shelton v. New York State Liq. Auth., 61 A.D.3d 1145, 1150–1151, 878 N.Y.S.2d 212 [2009] ). To the extent that claimant asserts claims pursuant to 42 U.S.C. § 1983, the state is not a “person” in that regard and the Court of Claims lacks jurisdiction over such claims (see Brown v. State of New York, 89 N.Y.2d 172, 184–185, 652 N.Y.S.2d 223, 674 N.E.2d 1129 [1996] ; Flemming v. State of New York, 120 A.D.3d at 849, 991 N.Y.S.2d 181 ).
We also find no error in the Court of Claims' dismissal for failure to state a cause of action of the claims alleging improper removal of claimant from his prison job and assault. An inmate has “no statutory or constitutional right to a prison job” (Evans v. State of New York, 57 A.D.3d 1123, 1123–1124, 868 N.Y.S.2d 417 [2008] [internal quotation marks and citation omitted], lv. denied 12 N.Y.3d 704, 879 N.Y.S.2d 50, 906 N.E.2d 1084 [2009] ), and “[w]hether [claimant] ultimately will be entitled to the incidental monetary relief he seeks cannot be ascertained without reviewing the underlying administrative determination, which is a quintessential example of a dispute governed under CPLR article 78” (Matter of Salahuddin v. Connell, 53 A.D.3d at 900, 861 N.Y.S.2d 850 [internal quotation marks and citations omitted] ). Lastly, with regard to the claim of assault, claimant's allegations did not sufficiently set forth “physical conduct placing [him] in imminent apprehension of harmful contact” (Gould v. Rempel, 99 A.D.3d 759, 760, 951 N.Y.S.2d 677 [2012] [internal quotation marks and citation omitted]; see generally Guntlow v. Barbera, 76 A.D.3d 760, 766, 907 N.Y.S.2d 86 [2010], appeal dismissed 15 N.Y.3d 906, 912 N.Y.S.2d 572, 938 N.E.2d 1007 [2010] ).
ORDERED that the order is affirmed, without costs.
GARRY, J.P., CLARK and MULVEY, JJ., concur.