Opinion
# 2013-048-119 Motion No. M-83662 Motion No. M-83663
11-22-2013
RAFAEL ROBLES v. THE STATE OF NEW YORK
RAFAEL ROBLES, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Douglas R. Kemp, Esq. Assistant Attorney General
Synopsis
The Court denied Claimant's motion, made pursuant to Court of Claims Act 10 (6), to file a late claim to recover damages resulting from, among other things, the denial of Claimant's rights regarding the opening of privileged mail, while an inmate in the custody of the Department of Corrections and Community Supervision.
Case information
UID: 2013-048-119 Claimant(s): RAFAEL ROBLES Claimant short name: ROBLES Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): None Motion number(s): M-83662, M-83663 Cross-motion number(s): Judge: GLEN T. BRUENING Claimant's attorney: RAFAEL ROBLES, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Douglas R. Kemp, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: November 22, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Rafael Robles, an inmate at Eastern Correctional Facility (Eastern) under the supervision of the Department of Corrections and Community Supervision (DOCCS), has filed two motions with the Court. The first is a motion (M-83662) for permission to file a late Claim pursuant to Court of Claims Act § 10 (6) seeking damages resulting from DOCCS officers denying him his rights to privileged mail and access to the courts as guaranteed by the Federal and New York State Constitutions and DOCCS policy. The second application is a motion (M-83663) seeking a preliminary injunction pursuant to CPLR 6301 restraining the State of New York from, among other things, raising inmate photocopying fees from 10 cents to 25 cents per page during the pendency of this matter. Defendant opposes both motions.
The Court will first address Claimant's motion seeking late Claim relief pursuant to Court of Claims Act § 10 (6) (M-83662). Court of Claims Act § 11 (a) (i) mandates that a copy of the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the applicable time period provided in Section 10 of the Court of Claims Act. Constitutional tort causes of action are characterized as claims for unintentional torts (see Brown v State of New York, 250 AD2d 314, 319 [3d Dept 1998]). In this regard, Court of Claims Act § 10 (3) mandates that
[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.
Failure to timely serve the Attorney General with the Notice of Intention, or to timely file and serve the Claim, divests the Court of subject matter jurisdiction (see Alston v State of New York, 97 NY2d 159, 164 [2001]; Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]). However, if a claimant fails to timely file or serve the Claim, or fails to timely serve the Notice of Intention, he or she may move the Court for permission to file and serve a late Claim, so long as the applicable statute of limitations set forth in Article 2 of the CPLR has not expired (see Court of Claims Act §10 [6]). Claims alleging constitutional torts are governed by CPLR 214 (5), which requires that such actions be commenced within three years of the date of the injury (see Brown v State of New York, 250 AD2d at 318-319 [3d Dept 1998]). Since the Claim is alleged to have accrued in 2012 and 2013, Claimant's application for late Claim relief is timely.
In support of his motion, Claimant attaches a proposed Claim, which asserts three causes of action. Claimant's first cause of action alleges that, on December 26, 2012, he was called to the desk at the guard room to receive his legal mail. There, a DOCCS officer opened the envelope addressed to him with a return address belonging to an attorney with a California attorney registration number. The officer noticed holiday greeting cards inside and, believing them to not constitute privileged legal mail, forwarded the mail to the Eastern Correspondence Department for review. The greeting cards were from supporters of an organization called Just Detention International, and accompanied by a letter to Claimant from a program staff member of the organization. According to Claimant, the DOCCS officer improperly read the greeting cards, improperly concluded they were not privileged legal mail, and improperly forwarded them to the Eastern Correspondence Unit for review. Claimant asserts that this denied him legal mail privileges afforded him by DOCCS Directive 4421, as well as infringed upon his right to free speech, due process and equal protection afforded by the Federal and New York State Constitutions. Claimant filed a grievance, arguing that holiday greeting cards from staff or supporters of the organization constitute privileged legal mail and should not have been reviewed by DOCCS, and requesting that the officer be properly trained on handling legal mail. A Superintendent's determination acknowledged that the officer failed to follow the proper procedure in that she sent the questioned legal mail to the wrong office for review, and stated that the officer was instructed on proper procedures.
Claimant's second cause of action alleges that, on May 2, 2013, he was again called-out to receive his legal mail. There, a DOCCS officer opened the envelope mailed to him with a return address belonging to the Sylvia Rivera Law Project. The officer noticed a post card inside and, believing the mailing to not constitute privileged legal mail, forwarded it to the Superintendent for review. The post card was sent as part of a pen-pal project. According to Claimant, when the officer opened the legal mail inspection receipt book, he noticed that a receipt was already partly filled out with the words, "1 letter that was not legal mail, but return address made it look like it was" (Proposed Claim ¶ 32). Claimant contends that the officer improperly read Claimant's privileged legal mail, improperly concluded that the post card was not privileged legal mail, and improperly sent the mail to the Superintendent's office for review. As in the first cause of action, Claimant asserts that this denied him legal mail privileges afforded him by DOCCS Directive 4421, as well as infringed upon his right to free speech, due process and equal protection afforded by the Federal and New York State Constitutions. Claimant filed a grievance arguing that the post card constituted privileged legal mail, and requesting that the officer be trained on proper procedures for handling legal mail. A Superintendent's determination concluded that the officer was instructed on proper procedures for completing the legal mail inspection receipt.
Claimant's third cause of action alleges that, on April 8, 2013, the cost of photocopying at the copier in the law library was raised from 10 cents per page to 25 cents per page, and that DOCCS has improperly allowed an inmate organization to set the price and rules for use of the copier. According to Claimant, this increase in cost will require him to abandon his legal appeals because he cannot afford to make the required copies. Claimant asserts that the increase, along with DOCCS failure to provide copying services at reasonable cost, denies him access to the courts in violation of DOCCS policy, and infringes on his right of access to the courts afforded by the Federal and New York State Constitutions. Claimant filed a grievance arguing that the inmate organization has failed to provide adequate copy services and that DOCCS is not complying with its own policy regarding copy services, and requesting that DOCCS operate the copy services and reduce the charge to the former amount. A Superintendent's determination denied the grievance and concluded that the copier is a fundraiser for the organization, allowed by DOCCS policy, and that inmates are provided three copies of their material free of charge.
In addressing the substance of Claimant's motion seeking late Claim relief, the Court of Claims is vested with broad discretion to grant or deny a motion that seeks permission to file a late Claim (see Langner v State of New York, 65 AD3d 780, 783 [3d Dept 2009]) after consideration of among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy (Court of Claims Act § 10 [6]). However, "the presence or absence of any one factor should not be deemed controlling" (Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009] [internal quotation marks and citation omitted]).
With respect to the excusable delay factor in Court of Claims Act § 10 (6), Claimant asserts that he was mistaken in his belief that he was required to exhaust his administrative remedies before commencing this action. In opposition, Defendant argues that Claimant has not established a sufficient excuse for the delay. In noting that ignorance of the law is not an acceptable explanation for this delay (see Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]), while not a bar to the application, this factor does not weigh in Claimant's favor.
With respect to the Section 10 (6) factors of notice of essential facts, opportunity to investigate, and substantial prejudice to the State, Claimant asserts that Defendant had notice of the essential facts constituting the claim based on the grievance process utilized by Claimant. Defendant does not address these factors in response to Claimant's motion and, accordingly, the Court weighs these factors in Claimant's favor. Likewise, Defendant does not address Claimant's assertion that there is no alternative relief available and, accordingly, this factor also weighs in Claimant's favor.
While the final factor applicable to the motion - the appearance of merit - may arguably be the most crucial factor in Section 10 (6) (see Matter of Martinez v State of New York, 62 AD3d at 1226), it does not require a claimant to definitively establish the merits of the proposed claim. Rather, a claimant needs to establish that the proposed claim is not "patently groundless, frivolous or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists" (Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]).
The Proposed Claim consists of 17 pages organized into 72 separate paragraphs containing both factual detail and legal argument. An additional 36 pages of documents comprise 22 Exhibits in support of the three causes of action. It is clear from the submissions relating to the first and second causes of action that Eastern acknowledged its officers failed to thoroughly follow DOCCS procedure when opening Claimant's legal mail, and that Eastern counseled the two officers accordingly. However, the Proposed Claim does not allege Claimant sustained any damages from these procedural violations. Rather, it appears that Claimant has a continuing disagreement with Eastern over whether the greeting cards and post cards constitute privileged legal mail in the first instance. Specifically, Claimant objects to the action of Eastern officers sending greeting cards and post cards to the Superintendent for review, in accordance with DOCCS policy, when the officer is not sure that they qualify as privileged legal mail. Claimant's position appears to be that if the greeting card or post card arrives in an envelope from an attorney or legal organization, it constitutes privileged legal mail and should not be sent to the Superintendent for review. Clearly, although included in a claim for damages, the essence of Claimant's first two causes of action are challenges to the ongoing actions or procedures of DOCCS and its officers.
With respect to the alleged mishandling of incoming legal mail, DOCCS regulations define privileged correspondence as, among other things, correspondence addressed to an inmate from "[a]ny attorney, approved legal representative, representative employed or supervised by an attorney, or any legal services organization" (7 NYCRR 721.2 [a] [2]). Such mail is not to be opened outside the presence of the inmate and is not to be read without express written authorization from the facility superintendent (see 7 NYCRR 721.3 [b] [1]). A log entry should document any privileged correspondence that is erroneously opened outside the presence of the inmate (see 7 NYCRR 721.3 [b] [2]).
With respect to the third cause of action, Claimant has a continuing disagreement with Eastern over what is an appropriate charge to an inmate using the copier in Eastern's Law Library. Claimant is challenging both this increase in the charge, and also DOCCS decision and policy to allow the copier to be used as a fundraiser for an inmate organization. Claimant appears legitimately concerned about his ability to afford the cost of making all the necessary copies to prosecute various legal actions. As for damages, he makes only the allegation that the increased copy charges "has created claimant to loss [sic] sleep and appetite, depressed, heightened anxiety, sad and angry that he would have to waived [sic] his rights to appeal" (Claim ¶ 70). Claimant has made no allegations that he sought or received any medical diagnosis or treatment for these symptoms.
Although Claimant has alleged violation of his rights under the New York Constitution, the essence of his three causes of action are challenges to DOCCS actions, policy or procedures. Claimant asserts that the disputed DOCCS actions, policy or procedures infringe upon his constitutional rights. Nevertheless, challenges to agency actions, policy or procedures, even those that are designed to protect constitutional rights, are best resolved in special proceedings brought pursuant to CPLR Article 78 or by way of an action for declaratory judgment. In contrast, claims for damages to remedy alleged violations of the New York Constitution are allowed in only limited circumstances. "Claimants must establish grounds that entitle them to a damages remedy, in addition to proving that their constitutional rights have been violated" (Martinez v City Schenectady, 97 NY2d 78, 83 [2001]). In order to maintain an action for damages based on a constitutional tort, Claimant must demonstrate that he has no "alternative legal remedy" (Deleon v State of New York, 64 AD3d 840, 840-841 [3d Dept 2009], lv denied 13 NY3d 712 [2009]; Matter of McKenna v Goord, 245 AD2d 1074, 1075 [4th Dept 1997]). Here, Claimant availed himself of the grievance procedures with respect to the processing of his incoming legal mail and with respect to photocopy charges imposed, and should have challenged those determinations in a proceeding pursuant to CPLR Article 78 (see CPLR 7803 [3], [4]; Guy v State of New York, 18 AD3d 936, 937 [3d Dept 2005]).
To the extent Claimant alleges violations of his rights under the Federal Constitution, those claims are beyond the jurisdiction of the Court of Claims (see Carver v State of New York, 79 AD3d 1393, 1395 [3d Dept 2010], lv denied 17 NY3d 707 [2011]). To the extent that Claimant's proposed Claim can be read to assert a common-law tort based on a violation of a right to privacy, New York does not recognize such a cause of action, and the "limited statutory right to privacy contained in Civil Rights Law §§ 50 and 51, which relates to the unauthorized commercial use of a person's name, portrait or picture . . . is inapplicable here" (Juric v Bergstraesser, 44 AD3d 1186, 1187 [3d Dept 2007]). While Claimant is not required to definitively establish the merits of his Claim, he has not shown that there is reasonable cause to believe that a valid cause of action exists in the Court of Claims. Therefore, this factor does not weigh in Claimant's favor. It should be noted, however, that this determination has no bearing on whether an Article 78 proceeding on these facts would have merit.
Accordingly, based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10 (6), Claimant's Motion No. M-83662 is denied. Insofar as Claimant has been denied permission to file a late Claim, Claimant's Motion No. M-83663 for a preliminary injunction, pending a determination on his challenge to the agency action for which the preliminary injunction is sought, must be denied (see CPLR 6301; Glover v Coughlin, 203 AD2d 846, 846 [3d Dept 1994]).
November 22, 2013
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
"Notice of Claim" (Motion No. M-83662), filed June 21, 2013;
Affidavit in Support of Motion to Late File a Claim, sworn to on June 11, 2013;
Proposed Claim, undated, with Exhibits A-V;
Notice of Motion (Motion No. M-83663), filed June 21, 2013;
Affidavit in Support of Motion for Preliminary Injunction and Stay of Action, sworn to on June 11, 2013;
Affirmation of Douglas R. Kemp, Esq., dated July 10, 2013;
Claim Supplemental Motion, filed July 12, 2013;
Reply "Affirmation" of Rafael Robles, sworn to on July 30, 2013.