Bennet v State of New York

[*1] Bennet v State of New York 2006 NY Slip Op 50769(U) Decided on February 21, 2006 Ct Cl Patti, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 21, 2006
Ct Cl

Matthius Bennet, Claimant,

against

State of New York, Defendant.



111391



For Claimant: Matthius Bennet, Pro Se. For Defendant: Hon. Eliot Spitzer, Attorney General of the State of New York By: Gregory Pl Miller, Esq., Assistant Attorney General

Philip J. Patti, J.

The Defendant seeks dismissal of the claim. The claim alleges the tort committed by the Department of Correctional Services (DOCS) in wrongfully/illegally opening Claimant's outgoing correspondence at Wende Correctional Facility on or about August 22, 2005. Claimant seeks $2,000.00 in damages for mental stress, degrading treatment, mental anguish, violating and tampering with outgoing correspondence, etc.

Dismissal is sought on the ground that, even if all the factual allegations set forth in the claim are deemed to be true, no cause of action which would permit the awarding of monetary damages has been pleaded. Defendant relies upon the holding in Campolito v State of New York, (UID 2000-015-507, Ct Cl, Claim No. 94670, April 27, 2000, Collins, J.) that: [*2]

7 NYCRR part 721 governs the conduct of employees of the Department of Correctional Services in handling an inmate's legal mail and upon this record claimant has demonstrated a facial violation of 7 NYCRR 721.3(2). However, the mere violation of a regulation does not necessarily give rise to a private cause of action for money damages. In fact, the breach of a regulation of the Department of Correctional Services resulting in the invasion of an inmate's right of privacy will not give rise to a private civil remedy when there are already in place other remedies to protect the inmate's rights (Lawrence v State of New York, 180 Misc 2d 337; see also Ruotolo v State of New York, 141 Misc 2d 111, affd 157 AD2d 452 and Pharr v Cortese, 147 Misc 2d 1078). Here, claimant had an article 78 review as well as the inmate grievance process available to prevent the unauthorized opening of his privileged mail (Matter of McKenna v Goord, 245 AD2d 1074) and in view of those protections the Court can find no basis for transforming a violation of 7 NYCRR part 721 into a private cause of action for money damages.

The difference between the regulations involved in Campolito, 7 NYCRR 721.3(2) for privileged mail, and the instant matter, 7 NYCRR 720.3(e) for regular correspondence, are indistinguishable. Claimant has failed to provide any basis upon which I can distinguish the analysis and holding in Campolito. His opposition relates to the adequacy of Defendant's suggested alternative relief pursuant to an article 78 proceeding in Supreme Court, but Knight v Goord (255 AD2d 930), where the Appellate Division annulled a disciplinary finding against an inmate because it was based upon evidence obtained in violation of 7 NYCRR 720.3(e), is not availing. Claimant suggests that that decision did not serve as an impediment in his claim to the purported violation of 7 NYCRR 720.3(e), but he fails to address how a violation of a regulation gives rise to a private cause of action for money damages.

Accordingly, the motion is granted and the claim is dismissed.

Dated: Rochester, New York

February 21, 2006

PHILIP J. PATTI

Judge of the Court of Claims