Opinion
# 2019-051-007 Claim No. 129935 Motion No. M-90804
01-10-2019
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 medical negligence and malpractice and negligent supervision, was converted by the Court to a motion for summary judgment and granted. Defendant's motion also requested sanctions was denied as moot because claimant was previously sanctioned. Plaintiff's request for sanctions denied on both procedural and substantive grounds.
Case information
| UID: | 2019-051-007 |
| 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): | 129935 |
| Motion number(s): | M-90804 |
| 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 10, 2019 |
| City: | Rochester |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on defendant's motion to dismiss in lieu of answer:
1. Notice of Motion with Affirmation of Paul F. Cagino, AAG, with attached exhibits, filed July 21, 2017;
2. Reply Affidavit, filed July 28, 2017;
3. Filed papers: claim, order.
On July 3, 2017, claimant filed a claim that alleged on June 26, 2017, while he was an inmate at Upstate Correctional Facility, a nurse and correction officer refused to dispense prescribed medication because he only had one of two lights on within his cell. As a result, claimant alleged he incurred "stomach distress, stomach discomfort, high pressure [blood] medication not provided, pain and suffering mental and emotional distress, and anguish." (¶ 5 of Claim.) The claim sounded in (1) failure to supervise these employees, and (2) "negligence, intentional neglect, malicious acts, delibert indifference to claimant health, and failure to follow doctors orders." (¶ 4 of Claim.)
In response, the defendant filed a pre-answer motion to dismiss the claim on July 21, 2017, which is presently before the Court. The grounds for the defendant's motion are: (1) failed to provide sufficient detail to support any cause of action and was therefore jurisdictionally defective; (2) omited any allegation that the nurse and correction officer acted outside their scope of duties; and (3) the allegation of non performance of a duty required a review of policies and procedures, and therefore must be challenged in a special proceeding in State Supreme Court. The defendant attached to its motion an affidavit from the nurse involved in the alleged incident that provided, in part:
"Because of his numerous prior rude and perverted behavior I stand off to the side of the cell while the office[r] identifies our purpose. On this date and time I noticed the inside of Johnathan Johnson's cell was dark. The C.O. directed Johnathan Johnson to turn the light on in the cell. Johnathan Johnson refused to turn the light on and proceeded to yell and curse at the Officer. He was rude, uncooperative and verbally threatening to the Officer. The medical visit was then cancelled because of his refusal to comply with DOCCS procedures. It is not a question of one light or two, it is a question of sufficient light to visually identify the person inside the cell. The cell was dark and at the direction of the Officer to turn the lights on Johnathan Johnson refused and then created a hostile threatening scene. Johnathan Johnson did receive his medications the next morning."
(¶¶ 7, 8, 8 of Brue affidavit attached as Exhibit B to Cagino affirmation.)
The Court thereafter issued an Order, filed on July 13, 2018 converting defendant's motion to one for summary judgment.
The claimant filed a reply affirmation on July 28, 2017 opposing the defendant's motion and requesting sanctions. He alleged that the Assistant Attorney General mischaracterized his claim and that he 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, which argument is moot given the Court's conversion of the motion to one for summary judgment.
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].) Then, following a trial of three claims, this Court sanctioned claimant's frivolous behavior and for bringing repetitive claims, many of which involve the distribution of medicine as in the instant claim. (Johnson v State of New York, UID No. 2018-051-503 [Ct Cl, Martin, J., Nov. 30, 2018].)
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].) Claimant's claim omits an allegation that the prison officials were acting outside the scope of their duties. Therefore, claimant's cause of action for negligent supervision is dismissed from the claim.
As to the medical negligence and intentional acts claimed by the claimant, to the extent that claimant is challenging the policy and procedures requiring DOCCS personnel to have lights on in the cell so they can identify the recipient before delivering medicine, the Court concurs with the defendant's argument that this must be brought in an Article 78 proceeding. (see Article 78 of the CPLR; see also Williams v State of New York(1), UID No. 2017-038-577 [Ct Cl, DeBow, J., Oct. 11, 2017].) However, to the extent that the claimant is merely seeking monetary damages for not receiving his medicine for half a day, the Court has subject matter jurisdiction but the claimant must prove that prison protocols were breached or standard medical care was not provided and that these omissions were the proximate cause of his injuries. (Bruno v State of New York, UID No. 2014-039-415 [Ct Cl, Ferreira, J., June 11, 2014].) Therefore, defendant's burden on this summary judgment motion was to establish as a matter of law that it did not breach its duty of care to claimant, or that any breach of its duty either did not result in injury or was not the proximate cause of his injuries.
Here, defendant sustained its burden of proof, through the affidavit of Nurse Brue, that claimant did not comply with well established procedures, failed to follow an officer's order, was rude, and created a hostile threatening scene. The claim, itself, supports the defendant's position that claimant did not follow procedures, and he failed to refute the nurse's affidavit in his reply papers. Therefore, no material question of fact is raised requiring a trial. Moreover, as demonstrated by the defendant, claimant is well aware that no duty was breached because the nursing staff is not permitted to deliver medications when the inmate refuses to comply with protocols regarding the delivery of medications. (see Johnson v State of New York, UID No. 2016-038-115 [Ct Cl, DeBow, J., Sept. 9, 2016] see also Johnson v State of New York, UID No. 2016-038-114 [Ct Cl, DeBow, J., Sept. 9, 2016]; Johnson v State of New York, UID No. 2016-038-549 [Ct Cl, DeBow, J., July 28, 2016]; Johnson v State of New York, UID No. 2016-038-519 [Ct Cl, DeBow, J., Apr. 4, 2016] Johnson v State of New York, UID No. 2015-038-112 [Ct Cl, DeBow, J., Sept. 29, 2015]; Johnson v State of New York, UID No. 2015-038-114 [Ct Cl, DeBow, J., Sept. 29, 2015]; Johnson v State of New York, UID No. 2015-038-115 [Ct Cl, DeBow, J., Sept. 29, 2015]). Moreover, the claimant is equally aware that cursing or the use of vulgar language, which allegation he did not refute, is behavior that also violates Upstate Correctional Facility procedures and would result in termination of the nursing encounter. (see Johnson v State of New York, UID No. 2016-038-549 [Ct Cl, DeBow, J., July 28, 2016].) Therefore, no duty was breached because defendant was justified in not providing claimant with the medications. (see Johnson v State of New York, UID No. 2018-051-503 [Ct Cl, Martin, J., Nov. 30, 2018]; see also Hall v State of New York, UID No. 2012-038-114 [Ct Cl, DeBow, J., Dec. 21, 2012].)
Defendant's request for sanctions is denied as moot because the Court has already sanctioned this claimant and prohibited him from filing any new claims without first seeking permission to do so from a Judge of the Court of Claims. (see Johnson v State of New York, UID No. 2018-051-503 [Ct Cl, Martin, J., Nov. 30, 2018].)
Accordingly, it is hereby,
ORDERED, the defendant's motion to dismiss (M-90804) that was converted by the Court into a motion for summary judgment is granted in its entirety. Claimant's claim no. 129935 is dismissed, with prejudice.
January 10, 2019
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims