Opinion
# 2019-051-009 Claim No. 129887 Motion No. M-90839
01-11-2019
JOHNATHAN JOHNSON v. STATE OF NEW YORK
JOHNATHAN JOHNSON, PRO SE HON. LETITIA JAMES New York State Attorney General BY: PAUL F. CAGINO, ESQ. Assistant Attorney General
Synopsis
Defendant's pre answer motion to dismiss serial pro se litigant's causes of action sounding in intentional medical malpractice and negligence and negligent supervision, was converted by the Court to a motion for summary judgment and adjourned for 60 days to permit additional submissions. In the issue of protecting the limited resources of the State, the summary judgment motion was adjourned for an additional 60 days for the parties to address issues raised by the Court.
Case information
| UID: | 2019-051-009 |
| Claimant(s): | JOHNATHAN JOHNSON |
| Claimant short name: | JOHNSON |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129887 |
| Motion number(s): | M-90839 |
| Cross-motion number(s): | |
| Judge: | DEBRA A. MARTIN |
| Claimant's attorney: | JOHNATHAN JOHNSON, PRO SE |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: PAUL F. CAGINO, ESQ. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 11, 2019 |
| City: | Rochester |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on defendant's motion to dismiss the claim in lieu of answer:
1. Notice of Motion with Affirmation of Paul F. Cagino, AAG, and attached exhibits, filed August 1, 2017;
2. Claimant's Reply Affidavit, filed August 10, 2017;
3. Filed papers: claim and order.
Claimant alleged on May 29, 2017, while an inmate at Upstate Correctional Facility, a nurse intentionally refused to pick up his sick call slip that requested his prescribed medicines be refilled. As a result, claimant alleged he missed taking "naproxens, ranitidine, sinopril, zafiflukat, and omeprazole [sic]" to treat his allergies, stomach and ankle pains and high blood pressure. Due to the claimed intentional neglect of the nurse and defendant's failure to supervise, claimant alleged he "suffered stomach headaches, ilness [sic]. And pains to his ankle and high blood pressure [sic]" and seeks $150,000 in damages. (¶ 5 of Claim).
Previously, this Court stayed this motion pending a decision to the defendant's omnibus motion for sanctions against the claimant for filing frivolous claims that included this claim. (see Johnson v State of New York, UID No. 2018-051-010 [Ct Cl, Martin, J., May 22, 2018]; Johnson v State of New York, UID No. 2017-051-054 [Ct Cl, Martin, J., Sept. 22, 2017].)
The defendant filed a pre answer motion to dismiss the claim, pursuant to CPLR 3211 (a) (2) and (7), for lack of subject matter jurisdiction and failure to state a cause of action. The defendant argued that claimant's conclusory allegations combined with his failure to allege that the nurse acted outside the scope of his duties and that the defendant knew or should have known about the nurse's propensity to act as alleged was insufficient to set forth a negligent supervision cause of action. As to the claim that the nurse intentionally failed to collect the sick call slip, the defendant contended that the essence of the allegation is that the nurse failed to perform a required duty that would require a review of policies and procedures, which should be brought in a special proceeding in State Supreme Court. Further, the claimant failed to allege that he ran out of his medication or that it was withheld. Attached to the motion papers was the affidavit of the nurse who swore that if claimant "had placed a legitimate sick call slip on the corner of his feed up tray I would have pick[ed] it up and process[ed] it as required. At no time did I, nor would I, refuse to pick up an inmates sick call slip." (¶ 7 Waterson Affidavit.)
The Court issued an Order, filed July 13, 2018 to convert the defendant's motion to one for summary judgment.
The claimant opposed the motion and requested sanctions alleging that the Assistant Attorney General mischaracterized his claim and that he has met the low threshold to state causes of action. The claimant primarily objected to the affidavit being attached to the motion to dismiss papers and requested the Court disregard it. The latter argument is moot given the Court's conversion of the motion to one for summary judgment.
Claimant is well aware of the pleading requirements of the Court of Claims Act § 11 (b) to state a negligent supervision cause of action and yet he failed to meet them. (see Johnson v State of New York, UID No. 2015-038-575 [Ct Cl, DeBow, J., Nov. 13, 2015].) Claimant has previously been educated that in order to sustain a cause of action for negligent supervision and retention, he must allege specific facts describing the omissions and that the defendant's employees were acting outside the scope of their duties. (see Johnson v State of New York, UID No. 2017-051-036 [Ct Cl, Martin, J., June 12, 2017]; see also Johnson v State of New York, UID No. 2015-038-573 [Ct Cl, DeBow, J., Nov. 13, 2015]; Johnson v State of New York, UID No. 2003-019-560 [Ct Cl, Lebous, J., Sep. 24, 2003].) Therefore, claimant's cause of action for negligent supervision is dismissed from the claim.
As to claimant's allegations of intentional acts, he has made the same complaint about Nurse Waterson's refusal to pick up a sick call slip in at least one other claim (Johnson v State of New York, UID No. 2018-051-505 [Ct Cl, Martin, J., Dec. 14, 2018].) Although the affidavit of Nurse Waterson supports defendant's position, it is insufficient to resolve the factual dispute, in light of claimant's assertion that there was a sick call slip which the nurse refused to pick up.
Here, defendant failed to sustain its burden of proof. It did not produce the claimant's medical records for May and June 2017 that could reveal whether claimant: (1) had a current prescription to refill; (2) needed a prescription; (3) had or should not have run out of his prescription medicine if it had been properly taken; and (4) was actually provided the medication. Neither did the defendant submit an affirmation from a physician expressly opining whether missing any of the medications for one day would cause injury.
The physician's affirmation must contain detailed facts and be specific and factual in nature and not merely recite in conclusory form that the medical care claimant received was within accepted standards or that he didn't sustain an injury. ( see Suib v Keller, 6 AD3d 805, 806 [3d Dept 2004]; see also Bruno v State of New York, UID No. 2014-039-415 [Ct Cl, Ferreira, J., June 11, 2014].)
In the interest of protecting the limited resources of the Court of Claims and in light of the sheer number of claimant's outstanding claims, the Court will grant the parties one more opportunity to submit additional papers to address the issued raised by the Court above. The defendant shall submit any additional papers within 60 days of the filing of this interim order. Thereafter, the claimant shall have 30 days to reply thereto.
Claimant's request for sanctions is denied on both procedural and substantive grounds. (see Johnson v State of New York, UID No. 2018-051-503 [Ct Cl, Martin, J., Nov. 30, 2018].) Accordingly, defendant's motion is adjourned until 90 days after the date of filing of this interim order to allow for additional timely submissions as set forth above. A final order will then be issued.
January 11, 2019
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims