Opinion
# 2016-038-109 Claim No. 116467 Motion No. M-86693
07-06-2016
JOHNATHAN JOHNSON v. THE STATE OF NEW YORK
JOHNATHAN JOHNSON, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Glenn C. King, Assistant Attorney General
Synopsis
Claimant awarded $350.00 for injuries sustained as a result of a battery by correction officers. Claimant testified at trial that he had been assaulted, and the only contradictory evidence was an Inmate Injury Report that reflected that claimant had not suffered certain injuries. Claimant's testimony was supported by an adverse inference drawn from defendant's failure to produce the original photographs of him that were taken after the assault, and missing witness inferences were drawn from defendant's failure to call as witnesses the three correction officers alleged to have been involved in the assault and the nurse who completed the Inmate Injury Report.
Case information
| UID: | 2016-038-109 |
| Claimant(s): | JOHNATHAN JOHNSON |
| Claimant short name: | JOHNSON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 116467 |
| Motion number(s): | M-86693 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | JOHNATHAN JOHNSON, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Glenn C. King, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 6, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated at Upstate Correctional Facility (CF), filed this claim seeking monetary compensation for injuries he allegedly sustained as a result of the intentional and negligent conduct of defendant's employees. The first cause of action asserts improprieties with respect to the imposition of a restricted diet at Upstate CF on January 15, 2009 at Upstate CF; the second cause of action asserts an assault by correction officers at Upstate CF on January 16, 2009 and a subsequent denial of medical treatment at Downstate CF on the same date; and the third cause of action asserts that denial of sick calls at Downstate CF from January 16 through January 22 , 2009. The trial of this claim was conducted by videoconference on May 1, 2015, with the parties appearing at Upstate Correctional Facility (CF) in Malone, New York and the Court sitting in Saratoga Springs, New York. Claimant offered his own testimony; defendant presented the testimony of Upstate CF Nurse Administrator Nancy Smith. Twelve exhibits offered by claimant were received into evidence, including DVD recordings of the exterior of claimant's cell at Upstate CF on January 14 and January 16, 2009; one exhibit offered by defendant was received into evidence. After listening to the witnesses' testimony and observing their demeanor as they testified, and upon consideration of that evidence and the documentary evidence received at trial and the applicable law, the Court finds defendant liable to claimant. First Cause of Action
At trial claimant abandoned two causes of action stated in the claim that assert the intentional destruction of claimant's personal property on January 16, 2009 and the fabrication of a misbehavior report on February 10, 2009.
At trial claimant was granted permission to file a post-trial motion seeking sanctions for the alleged spoliation of photographs that were taken of him at Downstate CF following the alleged assault at Upstate CF. Claimant thereafter filed the spoliation motion (Motion No. M-86693), upon which decision was held in abeyance pending further submissions (see Johnson v State of New York, Claim No. 116467, Motion No. M-86693 [unpublished decision and order dated Sept. 30, 2015, Ct Cl, DeBow, J.]). Upon consideration of all of the papers received on the motion, and the other papers recited at the conclusion of this decision, claimant's motion number M-86693 will be granted in part, as discussed below.
On January 14, 2009, claimant was incarcerated in a Special Housing Unit (SHU) at Upstate CF and was issued an inmate misbehavior report (IMR) by Correction Officer (CO) B. LeClair (see Claimant's Exhibit 4 [1/14/09 IMR]). Prior to the hearing on the IMR, a pre-hearing restricted diet order was issued pursuant to Department of Correctional Services (DOCS) Directive 4933 that placed claimant on a restricted diet for seven days commencing with the breakfast meal on January 15, 2009 and ending with the evening meal on January 21, 2009 (see Claimant's Exhibit 3). The restricted diet consists of a loaf which is made with ingredients that include milk and wheat (see Claimant's Exhibit 7). As pertinent to this claim, DOCS Directive 4933 limits a restricted diet for no more than 7 days pending the outcome of a hearing (see Claimant's Exhibit 2 [§ 304.2 (b)(2), (c)]). Directive 4933 further provides that a designated physician, nurse or physician's assistant must examine the inmate within 24 hours of the imposition of the restricted diet and daily thereafter during the restriction (see id. [§ 304.2 (f)]). Claimant testified that the imposition of the 7-day restricted diet was approved by medical staff at Upstate CF notwithstanding that there was a note in his file that he was not to be issued the restricted diet loaf. Claimant's medical records reflect that on May 10, 2007, claimant had complained to Upstate CF personnel that the restricted diet loaf "makes him sick" (Claimant's Exhibit 10), and Upstate CF records further reflect that claimant was placed on a non-dairy diet in September 2008 (see Claimant's Exhibit 5). Claimant testified that as a result of being on the restricted diet loaf for 7 days he experienced difficulty breathing, diarrhea, stomach pains and nausea.
In 2011 the executive agency formerly known as DOCS was changed to the Department of Corrections and Community Supervision (DOCCS). Inasmuch as the events alleged in the claim predate the name change the Court will refer to the agency by its former name.
On February 9, 2009, claimant's blood was drawn for a RAST test to determine whether he had dietary allergies (see id.). The RAST test results received by Upstate CF on February 23, 2009 verified that claimant had an allergy to milk, cheese, eggs and wheat (see id.). Claimant's grievance dated February 20, 2009 and filed on February 25, 2009 asserts that he should not have been approved for a restricted diet until the RAST test result was received, and that Dr. Weissman had approved claimant for a restricted diet on February 19, 2009 and January 15, 2009 without the test results (see id. [UST Grievance No. 38363-09]). On February 25, 2009, claimant was found guilty of all charges in the IMR, and the Hearing Officer recommended that claimant be assessed a total penalty of 15 days of a restricted diet, with 4 days off (see Claimant's Exhibit 4). On March 3, 2009, the Inmate Grievance Resolution Committee (IGRC) responded to claimant's grievance by acknowledging that claimant had been placed on a non-dairy diet since September 2008, that he had not been placed on a restricted diet since October 12, 2008 "despite his continued . . . acts of misbehavior," and that due to his confirmed allergies, he was no longer eligible to be placed on a restricted diet (see Claimant's Exhibit 5 [IGRC decision, dated 3/3/09]). On March 5, 2009, the Acting Superintendent modified the restricted diet penalty to counseling and reprimand (see Claimant's Exhibit 4). On March 17, 2009, the Upstate CF Superintendent upheld the IGRC response to claimant's grievance and claimant appealed the Superintendent's decision to the Central Office Review Committee (CORC) on the grounds that records will demonstrate that Dr. Weissman approved the restricted diet on January 15, 2009 and February 19, 2009 (see Claimant's Exhibit 5 [Superintendent's decision, dated 3/17/09]). No CORC decision was received into evidence.
Claimant argues that defendant was negligent for placing him on a restricted diet that included dairy because he had been placed on a non-dairy diet four months prior and the restricted diet loaf contained dairy. The preponderance of the credible evidence demonstrates that Upstate CF officials failed to adhere to claimant's non-dairy diet by placing him on the restricted diet loaf that contained milk, and thus, they breached a duty to claimant to provide a dairy-free diet. Nevertheless, claimant has not established the defendant is liable to him for this breach of duty, because to the extent that claimant proved that he ingested the diet loaf, expert medical proof is required to establish a causal nexus between claimant's ingestion of the diet loaf and his alleged medical symptoms and injuries (see Johnson v State of New York, UID No. 2012-038-115 [Ct Cl, DeBow, J., Dec. 21, 2012]; Johnson v State of New York, UID No. 2010-044-534 [Ct Cl, Schaewe, J., June 15, 2010], citing Duffen v State of New York, 245 AD2d 653, 653-654 [3d Dept 1997], lv denied 91 NY2d 810 [1998]; Johnson v State of New York, UID No. 2010-032-023 [Ct Cl, Hard, J., June 22, 2010]; Morene v State of New York, UID No. 2003-031-520 [Ct Cl, Minarik, J., Oct. 21, 2003]). Claimant offered no expert proof at trial that would demonstrate causation, and thus, claimant has not made a prima facie showing that defendant's breach of duty was the cause of his claimed injuries. In the absence of such proof, it would be speculative for the Court to conclude that his injuries were caused by his ingestion of dairy ingredients, as opposed to wheat or any other cause. To the extent that claimant argues that DOCS policies or procedures were violated when a pre-hearing order that placed him on the restricted diet was issued, claimant adduced no evidence that any policies or procedures were violated by defendant's employees. Accordingly, defendant is not liable to claimant on this cause of action.
Second Cause of Action
Claimant testified that as he was being escorted to a bus to be transported to Downstate CF at approximately 6:00 a.m. on January 16, 2009, he was assaulted by COs S. Boyea and J. Shova in the draft area at Upstate CF. Claimant testified that as he exited the facility, one of the COs threw him up against a brick wall, pushed his head into the wall, punched him in the body and choked him for a couple of seconds. Claimant testified that Sergeant Chapman subsequently told him that if he made any more sounds on the bus he would get the "same thing." Claimant testified that when he arrived at Downstate CF later that day, he reported the incident, photographs were taken of him, and he was seen by Nurse P. Lepage, who denied him medical care. An Inmate Injury Report was completed at Downstate CF on January 16, 2009, in which claimant wrote that he was "gettin' [sic] on the transfer bus to Downstate [he was] choke [sic] by neck punch and head push[ed] on wall on 1/16/09 as I exit[ed] the Upstate Corr. Fac. draft-room two prison guards transfer escort assaulted my [sic] on the command of Sergeant Chapman" (Claimant's Exhibit 11). The Inmate Injury Report reflects that claimant's neck was examined by Nurse LePage, who noted that there was no bruising, contusion or swelling, that he had flexion and extension in his neck without difficulty or pain, and that treatment was not needed. Claimant testified that the assault resulted in scratches on his throat, that his throat was sore and that he had a "knot"on his head, and that he experienced head and neck pain, and that he was denied pain medication by Downstate CF medical staff.
All quotations are to the Court's trial notes or the digital audio recording of the trial, unless otherwise indicated.
Based upon allegations that defendant's agents assaulted claimant at Upstate CF, this cause of action sounds in battery, which is established by proof that a defendant " 'intentionally engage[d] in offensive bodily contact without plaintiff's consent' " (Cicci v Chemung County, 122 AD3d 1181, 1183 [3d Dept 2014], lv to appeal dismissed in part 25 NY3d 1062 [2015], quoting Guntlow v Barbera, 76 AD3d 760, 766 [2010], appeal dismissed 15 NY3d 906 [2010]; see Goff v Clarke, 302 AD2d 725, 726 [2003]). It is claimant's burden to prove his claim by a preponderance of the credible evidence (see Tomaino v State of New York, 22 Misc 3d 1013, 1019 [Ct Cl 2008]; Kosinski v State of New York, UID No. 2000-028-0012 [Ct Cl, Sise J., Nov. 30, 2000]), and the credibility of the witnesses at trial is a critical factor in the determination of whether claimant has met that burden (see Shirvanion v State of New York, 64 AD3d 1113 [3d Dept 2009]; Wester v State of New York, 247 AD2d 468 [2d Dept 1998]; Medina v State of New York, UID No. 2007-028-010 [Ct Cl, Sise, P.J., Mar. 2, 2007]).
Preliminarily the Court must consider and rule upon claimant's motion for sanctions for the alleged spoliation of the photographs that were taken of him at Downstate CF following the alleged assault, which were requested but not produced in discovery. The Assistant Attorney General defending the claim at trial did not have the photographs in his file and was unaware any such photographs had been taken. Claimant's unrefuted statements under oath that such photographs were taken provided a basis for the Court to permit claimant to make a post-trial motion addressed to defendant's failure to produce the requested photographs. In response to claimant's post-trial motion (Motion No. M-86693), defendant produced blurry and grainy photocopies of the photographs at issue, which resulted in a court order requiring defendant to locate the originals or to submit an affidavit or affidavits of persons with knowledge of any efforts taken to locate the original photographs and as to how the originals were lost (see Johnson v State of New York, decision and order dated Sept. 30, 2015). Defendant has submitted affidavits of two Downstate CF employees, Captain James Cavaleri and Ada Perez, each of whom describes their unsuccessful search for the original photographs (see Affirmation of Glenn C. King, AAG, dated Feb. 16, 2016, Exhibits A-B). Perez's affidavit lacks any explanation as to how the original photographs became unavailable, and it is appended by a newly scanned set of the copies of the photographs that are not of appreciably better quality than the copies that were submitted in initial opposition to claimant's motion. Capt. Cavaleri's affidavit avers that Downstate CF is a reception facility at which photographs are taken of each of the hundreds of inmates who are processed at the facility every week. While this may imply that the photographs were simply misplaced within a volume of photographs, it does not sufficiently establish how these photographs - taken not for initial processing but for the very purpose of documenting alleged injuries - became unavailable. Claimant argues in response to the Cavaleri and Perez affidavits that they fail to account for how the photographs were lost, that the failure to preserve the evidence was wilful, and that he does not wish to offer the low-quality photocopies of the photographs into evidence (see Johnson Reply Affidavit, sworn to April 13, 2016).
The imposition of sanctions for the spoliation of evidence involves the exercise of broad judicial discretion (see Ortega v City of New York, 9 NY3d 69, 76 [2007]). Severe sanctions such as striking a pleading or issuing an order of preclusion is reserved for the most egregious of situations, such as where it is demonstrated that the evidence is unavailable due to deliberate or contumacious conduct (see Denoyelles v Gallagher, 40 AD3d at 1027 [2d Dept 2007]; O'Connor v Syracuse Univ., 66 AD3d 1187, 1191 [3d Dept 2009]; Osterhoudt v Wal-Mart Stores, Inc., 273 AD2d 673, 674-675 [3d Dept 2000]), or where a claim or defense is fatally compromised because the unavailability of evidence leaves a party unable to prove its claim or defense (see Hotel 57 LLC v Harvard Maintenance, Inc., 29 AD3d 462 [1st Dept 2006]; Baglio v St. John's Queens Hosp., 303 AD2d 341, 342-343 [2d Dept 2003]; cf. Mylonas v Town of Brookhaven, 305 AD2d 561 [2d Dept 2003]; Chiu Ping Chung v Caravan Coach Co., 285 AD2d 621, 621-622 [2d Dept 2001]). It matters not whether the spoliation was intentional or negligent; rather, the nature of the sanction should relate to the degree to which the moving party has been prejudiced by the loss of the evidence (see Denoyelles v Gallagher, 40 AD3d at 1027; Baglio v St. John's Queens Hosp., 303 AD2d at 342; Chiu Ping Chung v Caravan Coach Co., 285 AD2d at 621-622).
As defendant has failed to locate the original photographs of which it possesses photocopies, it is manifest that there was spoliation of the original photographs. However, and despite claimant's unsupported allegation that the photographs were intentionally destroyed, there is absolutely no evidence that the loss of the original photographs was the result of deliberate or contumacious conduct by defendant. Further, although it is of concern that the copies of the photographs were not located and produced until defendant faced the threat of sanctions under the spoliation motion, defendant did not ignore any court orders compelling production of discovery materials, and there is no showing that it wilfully and in bad faith failed to comply with its discovery obligations (see Osterhoudt, 273 AD2d at 674-675), and thus defendant's conduct provides no basis for an extreme sanction. Further, although the photocopies of the pictures are too blurry and grainy to be of much use to claimant, the absence of the original photographs does not fatally compromise his ability to prove his cause of action for battery, and thus, an extreme sanction is not appropriate. However, as discussed in its prior decision and order, the Court is troubled that defendant did not place a litigation hold on the original photographs, especially in view of the fact that claimant's demand for them was made approximately five months after the alleged incident (see Defendant's Response to Claimant's Disclosure Request for Production of Documents, Second Cause of Action, Demand No. 7, dated and served June 23, 2009]), and much of the reason for taking photographs of an inmate following an injurious incident is to provide contemporaneous evidence of the event. Inasmuch as inmates' claims of assault are often won or lost based upon the comparative credibility of claimant and other evidence, the original photographs may have corroborated claimant's testimony that he was assaulted and sustained injuries in the face of the Inmate Injury Report (which was completed by Nurse Lepage, who did not appear as a witness at trial) that indicates that claimant did not suffer any injuries. Thus, claimant's ability to prove his cause of action has been prejudiced by the spoliation of this evidence, and the Court will therefore exercise its discretion and will partially grant claimant's motion number M-86693 to the extent that a negative inference is hereby drawn from defendant's failure to produce the original photographs that were taken of claimant after the alleged assault.
At trial, claimant requested a missing witness inference due to defendant's failure to call Nurse Lepage and the three correction officers who were involved in the alleged assault of claimant. Defendant opposed the request, and asserted that the three correction officers are retired from state service, that the Inmate Injury Report contains a record of what Nurse Lepage would have testified to, and that claimant could have called or subpoenaed those witnesses.
An adverse inference that an individual would have testified favorably to the party requesting the adverse inference is appropriately drawn when someone who is knowledgeable about a material issue would be expected to testify favorably for a party to whom the witness is available, but that party has not called that witness even though his or her testimony would not be cumulative (see People v Gonzalez, 68 NY2d 424, 427 [1986]). The party seeking the adverse inference must establish prima facie that the uncalled witness has relevant knowledge and would be expected to testify favorably to the opposing party (see id., at 428; Matter of Ismael S., 213 AD2d 169, 173 [1st Dept 1995]). Here, claimant's testimony that the correction officers and Nurse Lepage were all directly involved in the alleged incident demonstrates that they would be knowledgeable about material issues, and, in the context of the alleged facts in this matter - it is clearly expected that their testimony would contradict claimant's testimony and thus favor defendant. This showing shifted to defendant the burden to defeat claimant's request for an adverse inference by accounting for the witness' absence or otherwise showing that the adverse inference would be inappropriate because "the witness is not knowledgeable about the issue, that the issue is not material or relevant, that although the issue is material or relevant, the testimony would be cumulative to other evidence, that the witness is not 'available', or that the witness is not under the party's 'control' such that he would not be expected to testify in his or her favor" (People v Gonzalez, 68 NY2d at 428). Here, defendant has not met that burden with respect to the correction officers or Nurse Lepage.
In opposition to claimant's request, the AAG represented merely that the three COs were retired from State service at the time of trial, which is not sufficient to demonstrate that they were unavailable absent a showing "that [their] whereabouts are unknown and that diligent efforts to locate [them] have been unsuccessful, or that [they are] ill or incapacitated" (id., [internal citations omitted]). Similarly, the mere fact that they are retired does not demonstrate defendant's lack of control over them in this juridical context because, although claimant may have been able to compel their attendance at trial via subpoenas, "if a witness, although theoretically 'available' to both sides, is favorable to or under the influence of one party and hostile to the other, the witness is said to be in the 'control' of the party to whom he is favorably disposed, and an unfavorable inference may be drawn from the failure to call the witness . . . [because] the witness' testimony is, in a 'pragmatic sense . . . unavailable to the opposing party regardless of physical availability' " (id., at 429, quoting United States v Blakemore, 489 F2d 193, 195, n 4 [6th Cir 1973]; see also Chandler v Flynn, 111 AD2d 300, 301 [2d Dept 1985], appeal dismissed 67 NY2d 647 [1986] ["control" is a broad concept which includes a witness who, even if not under the influence, employment or management, may be inferred to be "of good will" to the party who does not call the witness]). Here, no argument is made as to the materiality of the testimony of any of the four witnesses at issue, nor was there any offer of proof as to Nurse Lepage's unavailability or defendant's lack of control over her. While defendant seemed to argue that Nurse Lepage's testimony would have been cumulative because she wrote the Inmate Injury Report, her testimony may have provided additional insight into what she observed, and may have expanded upon the limited observations recorded in the Inmate Injury Report. In sum, claimant has met his burden of demonstrating his entitlement to an adverse inference from the absence of these four witnesses which has not been defeated by defendant, and accordingly, a missing witness inference will be drawn from defendant's failure to produce at trial COs S. Boyea and J. Shova and Sergeant Chapman.
Based upon claimant's testimony about the assault - the only live testimony received about the assault - and the negative inferences drawn from the spoliation of the original photographs and the failure of defendant to call the three COs and Nurse Lepage, the Court finds that a preponderance of the credible evidence establishes that the correction officers intentionally came into offensive bodily contact with claimant to which he did not consent, and thus, that claimant was the subject of a battery on January 16, 2009 at Upstate CF by defendant's agents. Thus, defendant will be held 100% liable for the injuries sustained by claimant as a result of the battery.
Claimant offered limited but credible testimony that he sustained scratches on his throat and a "knot" on his head, and that he had head and neck pain for the ensuing week, injuries that were fairly minor and not permanent. Claimant's further testimony that he was incapacitated and had difficulty swallowing and could not eat for a week is not believable, based upon the Court's observation of his demeanor during that testimony and in light of the Inmate Injury Report which did not document any injury that would have caused such extreme difficulties.
Claimant is entitled to compensation for the injury, pain and suffering he sustained, as well as for any special damages incurred (see Tirado v State of New York, UID No. 2010-030-023 [Ct Cl, Scuccimarra, J., July 19, 2010]). An award for pain and suffering should compensate for the physical and emotional effects of claimant's injury (see McDougald v Garber, 73 NY2d 246 [1989]; Lamot v Gondek, 163 AD2d 678 [3d Dept 1990]). An award for injury must fall within a range that does not "deviate[] materially from what would be reasonable compensation" (CPLR 5501 [c]), which range may be determined by reference to similar cases in which damages were awarded (see Osiecki v Olympic Regional Dev. Auth., 256 AD2d 998, 1000 [3d Dept 1998]).
The Court has considered, compared and contrasted awards for past pain and suffering for injuries arising from assaults at state correctional facilities, including Avent v State of New York (UID No. 2013-031-506 [Ct Cl, Minarik, J., June 25, 2013]), Vallade v State of New York (UID No. 2012-049-105 [Ct Cl, Weinstein, J., May 30, 2012]), and Fominas v State of New York (UID No. 2003-031-516 [Ct Cl, Minarik, J., July 2, 2003]). Having done so, and having taken into account both the similarities and distinctions between this matter and the cases considered, and having considered all of the testimonial and other evidence adduced at trial, and having found that defendant is liable to claimant for injuries sustained as a result of a battery, the Court awards damages on this cause of action for claimant's past pain and suffering in the amount of $350.00.
To the extent that the second cause of action seeks to impose liability on the ground that claimant did not receive adequate medical treatment when he was seen by Nurse Lepage at Downstate CF, claimant has failed to establish prima facie his entitlement to recovery on this ground. Claimant's evidence addressed to this basis for liability was solely his trial testimony that Nurse Lepage denied him medical care after the incident.
"It is fundamental law that the State has a duty to provide reasonable and adequate medical care to the inmates of its prisons" (Rivers v State of New York, 159 AD2d 788, 789 [3d Dept 1990]; see also Kagan v State of New York, 221 AD2d 7, 11 [2d Dept 1996]), a duty which "has been defined in terms of both negligence . . . and medical malpractice" (Kagan, 221 AD2d at 16). "Obviously, not every negligent act of a nurse would be medical malpractice, but a negligent act or omission by a nurse that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes malpractice" (Bleiler v Bodnar, 65 NY2d 65, 72 [1985]). Claimant is challenging Nurse Lepage's decision as a nurse that no medical treatment was necessary after her assessment of him, which is a medical malpractice claim for which claimant is "required to prove, through a medical expert, that [Lepage] breached the standard for good and acceptable care in the locality where the treatment occurred and that [such] breach was the proximate cause of [his] injury" (Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]). Claimant failed to offer expert testimony as to any of these elements of a medical malpractice cause of action, and thus, he has not established a prima facie case (see Myers v State of New York, 46 AD3d 1030 [3d Dept 2007]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]).
Third Cause of Action
This cause of action is based upon allegations that defendant's agents violated DOCS directives with regard to daily sick call. DOCS Directive 4933 provides in pertinent part that sick call is conducted daily and that any inmate that requests to see a medical practitioner will be seen in accordance with security precautions (see Claimant's Exhibit 8, at § 304.4 [c]). Claimant testified that when he requested a sick call slip from a CO after being housed in a SHU at Downstate CF, he was informed that there was no sick call and that he was denied sick call between January 16 and January 22, 2009. Claimant filed a grievance alleging that Downstate CF failed to conduct sick call between January 16 and January 22, 2009 and that he did not receive his medications, to which the IGRC responded that the sick call rounds were "properly conducted" (Defendant's Exhibit A [Grievance No. DSR 11497-09]). Entries in the logbook for the SHU gallery at Downstate CF where claimant was housed document that nurses dispensed medications every day during the period of January 16 through January 22, 2009, although claimant was not listed as an inmate who received medications.
Claimant's testimony about this cause of action was extremely vague and conclusory, and the evidence received at trial demonstrates that nurses dispensed medications at the Downstate CF SHU on those dates. Thus, there is no factual basis upon which to find that DOCS violated any of its policies or procedures with regard to daily sick call at Downstate CF from January 16 through January 22, 2009.
CONCLUSION
Claimant has failed to prove by a preponderance of the credible evidence that defendant is liable to him with regard to the imposition of a restricted diet at Upstate CF, that Nurse Lepage committed medical malpractice, or that there were violations of sick call procedures at Downstate CF. Claimant has proven his claim of battery at Upstate CF on January 16, 2009 by a preponderance of the credible evidence, and defendant is 100% liable for certain injuries sustained. Claimant is awarded damages in the amount of three hundred fifty dollars and no cents ($350.00) for past pain and suffering.
To the extent that claimant has paid a filing fee, it may be recoverable pursuant to Court of Claims Act § 11-a (2).
Any motions not previously ruled upon are hereby DENIED.
The Chief Clerk of the Court of Claims is directed to enter judgment in accordance with this Decision.
July 6, 2016
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered on Motion No. M-86693 : (1) Claim Number 116467, filed February 24, 2009; (2) Verified Answer, filed March 23, 2009; (3) Notice of Motion, dated May 11, 2015; (4) Affidavit of Johnathan Johnson in Support of Motion for Sanctions, sworn to May 11, 2015; (5) Affirmation of Glenn C. King, AAG, in Opposition to Claimant's Motion for Sanctions, dated May 27, 2015, with Exhibit A; (6) Reply Affidavit of Johnathan Johnson, sworn to June 1, 2015; (7) Response to Claimant's Disclosure Request for Production of Documents, dated June 23, 2009, with Exhibits A-B; (8) Second Supplemental Response to Claimant's Disclosure Request for Production of Documents, dated October 28, 2009, with Exhibits A-E; (9) Decision and Order in Johnson v State of New York (UID No. 2015-038-550 [Ct Cl, DeBow, J., Sep. 30, 2015, unpublished decision and order]; (10) Affirmation of Glenn C. King, AAG, dated Feb. 16, 2016, with Exhibits A-B; (11) Correspondence of the Hon. W. Brooks DeBow, dated April 6, 2016; (12) Reply Affidavit of Johnathan Johnson, sworn to April 13, 2016.