INMATE v. STATE 125930 (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Claimant, an inmate at a correctional facility, previously commenced a CPLR article 78 proceeding challenging the pat frisk procedure outlined in the Department of Corrections and Community Supervision's Directive No. 4910(B)(1) (the directive), alleging that he was sexually assaulted during an authorized pat frisk conducted in accordance with the directive.  Claimant alleged that the directive violates, inter alia, the Eighth Amendment of the United States Constitution, New York Constitution, article I, § 5, Penal Law § 130.52, Correction Law §§ 112 and 137(5), and Civil Rights Law § 79–c, and he sought a judgment rescinding the pat frisk policy set forth in the directive and awarding monetary damages for the extreme mental anguish that he suffered as a result of the pat frisk.  Supreme Court dismissed the petition, determining that “[p]etitioner's reliance on the Eighth Amendment's prohibition against cruel and unusual punishment is misplaced in the context of this proceeding.  The pat frisk directive, as written, does not ‘create inhumane prison conditions ․ [or] the infliction of pain or injury’ ” (Matter of Morrow v. Annucci, 50 Misc.3d 554, 556, 20 N.Y.S.3d 521 [Sup. Ct., Cayuga County 2015] ), and that the directive “ ‘is reasonably related to legitimate penological interests and pass[es] constitutional muster’ ” (id. at 557, 20 N.Y.S.3d 521).

Claimant thereafter filed the instant claim based on the same incident, seeking damages and an order determining that the directive is unconstitutional.  We conclude that defendant established that the instant claim repeats the challenge to the constitutionality of the directive that claimant made in his CPLR article 78 petition, and that issue was fully and fairly litigated and was necessarily decided in the prior proceeding (cf. Rivera v. State of New York, 91 A.D.3d 1331, 1332, 937 N.Y.S.2d 791 [4th Dept. 2012];  Margerum v. City of Buffalo, 63 A.D.3d 1574, 1580, 880 N.Y.S.2d 820 [4th Dept. 2009];  see generally Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 348–349, 690 N.Y.S.2d 478, 712 N.E.2d 647 [1999] ).  Thus, “both res judicata and collateral estoppel operate to preclude [claimant] from litigating [that] issue again” in the Court of Claims (Matter of Martin v. Central Off. Review Comm. of N.Y. State Dept. of Correctional Servs., 69 A.D.3d 1237, 1238, 893 N.Y.S.2d 694 [3d Dept. 2010] ).

We further conclude that the court properly dismissed claimant's constitutional tort claim inasmuch as “no ․ claim [for constitutional tort] will lie where the claimant has an adequate remedy in an alternate forum” (Shelton v. New York State Liq. Auth., 61 A.D.3d 1145, 1150, 878 N.Y.S.2d 212 [3d Dept. 2009];  see LM Bus. Assoc., Inc. v. State of New York, 124 A.D.3d 1215, 1218–1219, 999 N.Y.S.2d 619 [4th Dept. 2015], lv denied 25 N.Y.3d 905, 2015 WL 2105748 [2015];  Deleon v. State of New York, 64 A.D.3d 840, 840, 882 N.Y.S.2d 351 [3d Dept. 2009], lv. denied 13 N.Y.3d 712, 2009 WL 4250814 [2009] ).  Here, claimant had an adequate remedy in an alternate forum.  Indeed, he raised the same issues and sought the same relief as here in his prior CPLR article 78 petition.