Opinion
# 2014-044-568 Claim No. 112350 Motion No. M-85740
11-20-2014
JOHNATHAN JOHNSON v. THE STATE OF NEW YORK
Claimant's attorney: JOHNATHAN JOHNSON, pro se Defendant's attorney: HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Roberto Barbosa, Assistant Attorney General
Synopsis
Defendant moves for summary judgment in inmate claimant's claim for assault and for certain disciplinary actions. Defendant's motion was granted, as claimant failed to state a cause of action for assault, and the appropriate remedy for the complained-of disciplinary actions was through the mechanism of an Article 78 proceeding.
Case information
| UID: | 2014-044-568 |
| 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): | 112350 |
| Motion number(s): | M-85740 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | JOHNATHAN JOHNSON, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Roberto Barbosa, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 20, 2014 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim to recover damages for being deprived of services and privileges, being given smaller meal portions, and for being the subject of a correction sergeant's "fabrication of malicious acts" which occurred while he was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility (Elmira). Defendant State of New York (defendant) answered and asserted several affirmative defenses. Defendant now moves for summary judgment dismissing the claim. Claimant opposes the motion.
Claim, ¶ 3.
In an effort to alleviate confusion in this matter, the Court will group together certain allegations and/or causes of action which are related and address the parties' respective arguments concerning those allegations. Claimant alleges that on April 16, 2006 and while he was confined in a special housing unit (SHU) at Elmira, an inmate porter threw an unknown liquid toward his cell. Claimant states the incident occurred in the presence of both Correction Officer (CO) Thomas and a second officer. Claimant asserts that he was wrongfully accused of spitting on the porter and as a result was put on a restricted diet for 21 days. Claimant further states that there had been a video recording of the incident, but that recording was tampered with or erased.
Defendant argues that because claimant has failed to set forth a violation of any rule or regulation pertaining to the disciplinary procedure, the State is entitled to absolute immunity for subjecting him to a restricted diet. Defendant also asserts that by failing to appear at his disciplinary hearing, claimant waived any objection to the condition of the videotape.
Conversely, claimant argues that defendant has misinterpreted the allegations as challenging the disciplinary determination when he is actually asserting a cause of action for defendant's allegedly negligent supervision in failing to protect him from being assaulted by the inmate porter. He further alleges that defendant destroyed the videotape evidence in order to prevent him from proving his case.
Claimant specifically states that the claim "does not indicate any 'impropriety' of the April 27, 2006 [disciplinary] hearing"
On this motion to dismiss for failure to state a cause of action, "the [claim] is liberally construed, the facts alleged [in the claim and any submission submitted in opposition to the dismissal motions] are accepted as true, [claimant is] accorded every favorable inference and the court determines only whether the facts alleged in the [claim] 'fit within any cognizable legal theory' " (Lazic v Currier, 69 AD3d 1213, 1213-1214 [3d Dept 2010], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]).
In this case, claimant merely alleges that the inmate porter threw a cup of unknown liquid at claimant's cell. While the State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates (Blake v State of New York, 259 AD2d 878 [3d Dept 1999]), claimant does not allege that he was physically attacked by the porter or that he otherwise suffered any physical injury. Even if this conduct could be considered an attack, claimant has completely failed to set forth any allegation that defendant knew or should have known that the porter was prone to such conduct or that defendant had notice and opportunity to intervene to prevent it but failed to act (Sanchez v State of New York, 99 NY2d 247, 252 [2002]; see also Flaherty v State of New York, 296 NY 342 [1947]). Further, even if the porter's independent conduct could somehow be attributable to defendant, claimant's assertions are insufficient to establish even a common-law assault which requires an allegation of physical conduct that placed the claimant in imminent apprehension of harmful contact (Bastein v Sotto, 299 AD2d 432 [2d Dept 2002]; Charkhy v Altman, 252 AD2d 413, 414 [1st Dept 1998]). Accordingly, to the extent that claimant is seeking recovery from defendant based upon the porter's conduct, claimant has failed to state a cause of action.
In his claim, claimant also alleges that in April 2006, Sergeant Gilboy had "been fabricating malicious act[s] by claimant." Claimant states that he complained to Elmira's Superintendent on April 25, 2006, and on April 28, 2006 Gilboy provided claimant with a memorandum indicating that the Deputy Superintendent for Security (DSS) had directed Gilboy to respond to claimant's complaint. Claimant further asserts both that he was denied numerous services and privileges and that CO Thomas had been depriving him of meal portions since April 17, 2006.
Claim, ¶ 3.
It initially appears that claimant may be alleging that Gilboy fabricated misbehavior reports against him and as a result, claimant may have been denied services and privileges, including standard size meal portions. However, in support of this motion, defendant has submitted a copy of Grievance EL-30575-06 which contains information clarifying claimant's allegations. In Grievance EL-30575-06, claimant complained that Sergeant Gilboy had been falsely accusing him of malicious acts since April 16, 2006 solely to extend a deprivation order which deprived claimant of recreation, showers, cell cleanup, and haircuts. In the grievance, claimant also stated that CO Thomas and another officer had been serving his evening meal on a smaller tray with a smaller portion of food. Lieutenant Willis interviewed claimant with respect to this grievance. According to Willis, claimant "stated that he was grieving Sgt. Gilboy along with . . . who ever [sic] authorized the deprivation order," but did not provide any further information or witnesses. Sergeant Gilboy submitted a written statement that he completed a deprivation order renewal on May 4, 2006, and Acting DSS Wenderlich authorized continuation of the order. Gilboy indicated that as he was making his rounds, claimant stopped him and questioned him as to why a deprivation order had been issued against him (claimant) because he had only spit at CO Thomas and not at anyone else. Gilboy stated that when he began to explain the procedure for appealing the deprivation order, claimant turned away and started mumbling. The grievance was denied by the Superintendent, and the Central Office Review Committee denied the appeal. There is no indication that claimant commenced a CPLR Article 78 proceeding challenging this determination.
Claimant also submitted a copy of Grievance No. EL-30565-06 which concerned claimant's allegation that the videotape of the April 16, 2006 incident had been erased as well as assorted documents pertaining to claimant's disciplinary hearing. Because the contents of the videotape and the documents pertain only to the purported inmate-on-inmate assault and/or claimant's disciplinary hearing - neither of which are at issue in this claim - the information contained in these items is not relevant to the resolution of this motion.
Affirmation of Assistant Attorney General (AAG) Roberto Barbosa, dated Oct. 2, 2014, in Support of Motion, Exhibit E at 6.
Defendant contends that because the grievance addressed both the allegedly false statements made by Gilboy and the smaller portions of food claimant was given, claimant's remedy for an unsatisfactory determination was to commence a CPLR Article 78 proceeding in Supreme Court. Conversely, claimant contends that there are questions of fact as to whether the officers denied him privileges and services and gave him smaller evening meals in retaliation for his conduct on April 16, 2006.
Based upon the evidence in the record, it appears that claimant is asserting a cause of action for money damages by alleging that the deprivation order was wrongfully issued and/or renewed because Sergeant Gilboy falsely stated that claimant had been engaging in bad conduct. DOCCS regulations provide that "[a]n order depriving an inmate of a specific item, privilege or service may be issued when it is determined that a threat to the safety or security of staff, inmates, or State property exists" (7 NYCRR 305.2 [a]). All deprivation orders must be reviewed on a daily basis to determine whether renewal is appropriate (7 NYCRR 305.2 [c]). To the extent that the deprivation order may have been issued and/or renewed for safety or security reasons (rather than as a penalty for any misconduct), defendant's employees clearly had authority to do so under the regulations (see Barnes v State of New York, UID No. 2013-015-561 [Ct Cl, Collins, J., Aug. 21, 2013]). Further, claimant could (and did) challenge the administrative determination to issue or renew the deprivation order through the Inmate Grievance Program (see generally 7 NYCRR 701.2 [a], which defines a grievance as a complaint concerning the substance or application of, among other things, a regulation). To the extent that claimant was unsatisfied with the outcome of the grievance after exhausting all administrative appeals, his remedy was to seek judicial review pursuant to CPLR Article 78 in Supreme Court (see e.g. Matter of Keesh v Smith,59 AD3d 798 [3d Dept 2009]). Even though claimant characterizes his cause of action as one for money damages, it requires review of the underlying administrative determination over which this Court lacks jurisdiction (see Matter of Gross v Perales, 72 NY2d 231 [1988]; Green v State of New York, 90 AD3d 1577 [4th Dept 2011], lv dismissed and denied 18 NY3d 901 [2012]).
Further, a violation of 7 NYCRR 305.2 does not give rise to a private cause of action for money damages in the Court of Claims (see Barnes, UID No. 2013-015-561; Williams v State of New York, UID No. 2000-013-017 [Ct Cl, Patti, J., July 31, 2000]).
Moreover, to the extent that claimant may be alleging that the deprivation order was inappropriately issued/renewed as a penalty for his conduct on April 16, 2006, his recourse is also through a CPLR Article 78 proceeding in Supreme Court (see Matter of Trammell v Coombe, 170 Misc 2d 471, 476-478 [Sup Ct, Westchester County 1996]). Accordingly, defendant has met its burden of establishing entitlement to judgment as a matter of law dismissing any cause of action for the denial of privileges and services pursuant to the deprivation order (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
With respect to claimant's allegations that he was allegedly served smaller portions of food during evening meals commencing on April 17, 2006, the Court notes that inmates confined in SHU generally are entitled to the same type of meals that are served in general population "and in sufficient quantity to be nutritionally adequate" (7 NYCRR 304.2). Because claimant is complaining about the manner in which a DOCCS regulation has been applied to him, his remedy was to proceed in accordance with the Inmate Grievance Program and if he was unsatisfied with the result, his recourse was to seek judicial review by commencing a CPLR Article 78 proceeding in Supreme Court rather than filing a claim in this Court (Matter of Keesh, 59 AD3d at 798). Accordingly, defendant has met its burden of establishing entitlement to judgment as a matter of law dismissing this cause of action as well.
The burden now shifts to claimant to submit admissible evidence which creates questions of fact with respect to these two causes of action. Claimant initially asserts that there are questions of fact as to whether defendant's conduct constitutes retaliatory personnel action against him for the violation of Civil Service Law § 75. Claimant's reliance on this statute is entirely misplaced. Pursuant to Civil Service Law § 75-b (2) (a) (ii), a public employer may not take adverse employment action against a public employee based upon that employee's disclosure to a governmental body of information which "the employee reasonably believes . . . constitutes an improper government action" (see Zielonka v Town of Sardinia, 120 AD3d 925 [4th Dept 2014];Hastie v State Univ. of N.Y. [SUNY] Coll. of Agric. & Tech. at Morrisville, 74 AD3d 1547 [3d Dept 2010], lv denied 16 NY3d 701 [2011]). Because claimant (a prisoner in a State Correctional Facility) is not a public employee, he is not entitled to the benefits of the statute.
Further, claimant has completely failed to allege that he made any type of disclosure to an outside agency.
Claimant's argument that the motion should be denied because opposing counsel lacks personal knowledge of the facts is also without merit. While an affidavit of one without personal knowledge of the facts is of no probative value, "[t]he affidavit or affirmation of an attorney, even if he [or she] has no personal knowledge of the facts, may, of course, serve as the vehicle for the submission of acceptable attachments which do provide 'evidentiary proof in admissible form,' e.g., documents, transcripts" (Zuckerman, 49 NY2d at 563; see Feldschuh v State of New York,240 AD2d 914, 916 [3d Dept 1997]). In this case, counsel for defendant has appropriately utilized his affirmation to submit a certified copy of Grievance No. EL-50575-06 in support of this motion.
Lastly, claimant asserts that defendant has waived the ability to assert the defense that the claim fails to state a cause of action because the State did not make this motion within the 20-day period prior to submission of the answer. Claimant's contention lacks merit. "[A] motion based upon a failure to state a cause of action under CPLR 3211 (a) (7) may be raised 'at any time even if such objection [was] not raised in the answer' (State of New York v Hollander, 245 AD2d 625, 626 [3d Dept 1997], lv denied 92 NY2d 801 [1998] quoting State of New York v Wolowitz, 96 AD2d 47, 54 [2d Dept 1983]; see CPLR 3211 [e]; Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C3211:58, at 79). Moreover, defendant's motion clearly seeks summary judgment on the merits and by definition could not have been made until issue was joined, i.e. after the answer was served (CPLR 3212 [a]). Accordingly, claimant has failed to meet his burden of setting forth any admissible evidence which creates a question of fact requiring a trial of this matter.
In conclusion, claimant has failed to state a cause of action based upon the inmate porter's alleged conduct in throwing an unknown liquid toward claimant's cell. Further, claimant's purported causes of action concerning the denial of certain services and privileges and the service of smaller portions of food at the evening meal are in essence challenges to administrative determinations over which this Court lacks jurisdiction. Accordingly, defendant's motion is granted and Claim No. 112350 is dismissed in its entirety.
November 20, 2014
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on defendant's motion:
1) Notice of Motion filed on October 6, 2014; Affirmation of Roberto Barbosa, AAG, dated October 2, 2014, and attached exhibits.
2) Affidavit in Opposition of Johnathan Johnson, sworn to on October 14, 2014.
Filed papers: Claim filed on May 17, 2006; Verified Answer filed on June 23, 2006.