Opinion
# 2019-051-012 Claim No. 119323 Claim No. 119544 Claim No. 120837 Claim No. 125274 Motion No. M-92968 Cross-Motion No. CM-93036
01-14-2019
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 motion to dismiss and, in the alternative, for summary judgment sought to dismiss serial pro se litigant's four claims is granted and pro se claimant's cross motion to dismiss defenses is denied as moot.
Case information
| UID: | 2019-051-012 |
| 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): | 119323, 119544, 120837, 125274 |
| Motion number(s): | M-92968 |
| Cross-motion number(s): | CM-93036 |
| 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 14, 2019 |
| City: | Rochester |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on defendant's motion to dismiss claim nos. 119323, 119544, 120837, and 125274 or granting summary judgment (M-92968) and claimant's cross motion to dismiss defendant's motion (CM-93036):
1. Notice of Motion with Affirmation of Paul F. Cagino, AAG and attached exhibits, filed October 12, 2018;
2. Defendant's Reply Memorandum of Law, dated October 12, 2018;
3. Cross Motion with attached Affidavit and Memorandum of Law, filed October 31, 2018;
4. Affirmation in Opposition of Glenn C. King, AAG, with attached exhibit, dated November 7, 2018;
5. Filed papers: Claims (claim nos. 119323, 119544, 120837, 125274), Answers (claim nos. 119323, 119544, 120837, 125274).
Previously, this Court stayed the claims addressed in these motions pending a decision of the defendant's omnibus motion for sanctions against the claimant for filing frivolous claims. (see Johnson v State of New York, UID No. 2017-051-054 [Ct Cl, Martin, J., Sept. 22, 2017].) After the Court determined that the defendant's omnibus motion, which applied to claimant's 74 outstanding claims, it issued a decision, filed May 22, 2018, denying the motion without prejudice to renew in subsequent motions for summary judgment or dismissal at time of trial. (Johnson v State of New York, UID No. 2018-051-010 [Ct Cl, Martin, J., May 22, 2018].)
On October 12, 2018, the defendant filed a motion to dismiss the four claims (M-92968), pursuant to CPLR 3211 (a) (2) and (7) and Court of Claims Act § 11 for lack of subject matter jurisdiction and failure to state a cause of action, or in the alternative for summary judgment per CPLR 3212. In reply, on October 31, 2018, the claimant filed a cross motion to dismiss (CM-93036) defendant's motion, which was actually just an opposition because claimant requested no other relief. Significantly, claimant's affidavit was devoid of any substantive facts to address the defendant's motion papers.
A. Claim no. 119323.
This claim asserted four causes of action that arose while claimant was an inmate at Upstate Correctional Facility. In the first, second and fourth causes of action, claimant alleged that on December 9-30, 2010, a nurse maliciously and intentionally denied him medical treatment for his dry skin, allergy, sinus, and failed to provide him pain medication for his ankle, an inhaler for COPD, and Vaseline for dry skin. The claimant further alleged that, since March 2010, the facility's doctor discontinued medical treatment for chronic conditions without any evaluation. The third cause of action alleged a violation of DOCCS' Directive 4483 when he was deprived of notary services, copies, and typing services on December 14, 2010, which he needed to file a second habeas corpus application. Claimant's stated purpose in filing this claim was to recover monetary damages, in the amount of $150,000, for personal injuries resulting from denial of medical treatment by staff that were negligently supervised and for violation of their own rule and regulation regarding access to the law library. The damages alleged by claimant were "unable to take showers, and suffering from difficult breathing, skin burning, stomach pain, ankle pain, sneezing-running nose." (pg. 3 of claim.)
As to the first, second and fourth causes of action, defendant argued that it properly terminated claimant's sick call because of his improper behavior and failure to comply with well known sick call procedures or claimant did not request a sick call. The defendant asserted the third cause of action failed because it was based on a violation of a prison directive for which there is no cause of action and he failed to allege an injury caused by the alleged violation.
Attached to the defendant's motion papers were the affidavit of Nurse Administrator Nancy Smith, and copies of the nursing protocol document that governed medication and treatment delivery to inmates at Upstate Correctional Facility, and claimant's pertinent medical records. The affidavit provided specific facts that addressed claimant's general allegations of lack of medical treatment and demonstrated that no duty to claimant was breached. As to December 9, 10, 14, 15, 17 -23, 28-30, 2010, the affidavit substantiated that claimant's sick call was terminated because he refused to provide his name and DIN. On December 11, 24, 26, and 28, 2010, the nurse averred that sick call was terminated because of claimant's hostile and inappropriate behavior that created an unsafe environment. Claimant's medical records were checked and the affiant confirmed that he did not request sick call or seek emergency sick call on December 16, 2010.
B. Claim no. 119544.
Claimant stated ten causes of action against defendant that arose while an inmate at Upstate Correctional Facility. In the first, second, and fifth causes of action, claimant alleged that on February 1-4, 6-18, and 20-22, 2011, the nurse defendant maliciously denied him medicine and medical treatment without proper evaluation. In the third cause of action, claimant alleged that on February 5, 2011, a correction officer maliciously deprived him of his medically prescribed lunch. The fourth cause of action merely stated that on January 28, 2011, a Superintendent's hearing decision, issued on November 24, 2010, was reversed. The sixth cause of action alleged that on February 10 and 11, 2011, a correction officer refused him access to the law library to conduct needed research for his pending cases in federal and state courts. The seventh cause of action alleged that on February 17, 2011, a correction officer denied claimant access to his legal mail in violation of DOCCS Directive # 4421. The eighth cause of action alleged that on January 23, 2011, claimant became sick to his stomach after a civilian cook knowingly served him mashed potatoes made with milk, to which he was allergic. The ninth cause of action alleged, without identifying a date or time, that in retaliation for filing a grievance, a civilian cook served him fruit that had been salted. The tenth cause of action merely stated that "on February 7, 16, and 18, 2011, claimant wrote a letter to preserve videotapes of the incidents. Claimant summarized his claim as seeking money damages in the amount of $150,000 for injuries arising from denial of medical treatment. Claimant alleged damages included that he is unable to take a shower and that he suffers from burning skin, stomach pain, ankle discomfort, sneezing, and running nose.
Defendant contended that the first, second, and fifth causes of action must be dismissed because, as the claimant is well aware, non-compliance with sick call procedures or abusive or inappropriate behavior is a valid reason for a facility to legally terminate the sick call, therefore no duty to claimant was breached. Nurse Smith's affidavit stated that on each of the dates identified by claimant, he either refused to provide his name and DIN, was verbally abusive or exhibited inappropriate behaviors and sick call was terminated. (¶¶ 10 and 11 of Smith affidavit.) As to the third cause of action, the defendant alleged that claimant's conclusory allegations were legally insufficient to state a medical malpractice claim. Likewise, the fourth cause of action did not cite a cause of action and any review of an administrative action is governed by Article 78 of the CPLR requiring a special proceeding commenced in Supreme Court. There is no stated cause of action for denial of access to the law library, so the seventh cause of action was invalid. Claimant's allegations in the eight cause of action were false since there was no documentation that he was allergic to milk and claimant has repeatedly refused to be tested for allergies. Moreover, the allegations contained in the ninth and tenth causes of action failed to set forth material elements to state causes of action.
C. Claim no. 120837.
This claim asserted ten causes of action that allegedly occurred while claimant was an inmate at Upstate Correctional Facility. In the first, second, and eighth causes of action, the claimant alleged that on December 28 and 31, 2012, and January 2, 4, 7, 8, 12, 13, 16-18, and 20-22, 2012, he was denied sick call. The third cause of action sounded in bailment for the removal of doctor-ordered rice cakes on January 3, 2012. The fourth and fifth causes of action alleged that claimant was maliciously refused notary services on January 3 and 11, 2012, in violation of DOCCS directives 4483 and 4933. The sixth cause of action alleged that on December 27, 2011, defendant failed to honor claimant's request to mail a claim by certified mail return receipt requested, which he grieved on December 29, 2011. The seventh cause of action alleged that his disciplinary hearing, held in January 2012, violated DOCCS directive 4932 because it exceeded 14 days and the dispositions sheets were not provided to him. The ninth and tenth causes of action alleged that on January 17 and 23, 2012, claimant was denied access to his legal mail in violation of DOCCS directive 4421.
Defendant contended that the first, second, and eighth causes of action must be dismissed because non-compliance with sick call procedures, or abusive or inappropriate behavior was a valid reason for a facility to legally terminate the sick call, so, no duty to claimant was breached. Nurse Smith's affidavit stated that on each of the dates identified by claimant, he either refused to provide his name and DIN, was either verbally abusive, or exhibited inappropriate behaviors and sick call was terminated. (¶¶ 12 and 13 of Smith affidavit.) The third cause of action sounded in bailment and defendant argued it must be dismissed because claimant did not exhaust his administrative remedies, a statutory prequisite to filing a claim. The fourth, fifth, ninth, and tenth causes of action were invalid because employees' violations of DOCCS rules and regulations are not actionable. Likewise, the defendant averred its refusal to authorize an advance and claimant's grievance thereof, as stated in the sixth cause of action, was not actionable in the Court of Claims. Defendant submitted that claimant's allegation in the seventh cause of action did not constitute a due process violation, so, no cause of action was stated.
D. Claim no 125274.
This claim stated four causes of action that stemmed from his incarceration at Upstate Correctional Facility. The first cause of action alleged that a nurse failed to provide him with a bar of Neutrogena soap on November 1, 2014. The second cause of action alleged that from September through November 2014, nurses deprived him of treatment for his dry skin in retaliation for filing a grievance on March 4, 2014. The third cause of action alleged that on November 7, 2014 claimant requested sick call and was advised that the facility doctor ordered that he not receive Vaseline or Neutrogena soap for his dry skin, which was allegedly contrary to a declaration submitted to Federal Court. The fourth cause of action alleged on November 10, 2014 that a nurse failed to collect his sick call slip. Claimant sought $190,000 for the following alleged injuries: "pain and suffering and unable to take showers to wash his body. Burning cuts and skin discomforts." (pg. 4 of claim.)
Defendant provided the affidavit of a nurse that averred that during the period alleged by the claimant, he was not prescribed any treatment for dry skin, nor, was he expressly prescribed Neutrogena soap or Vaseline. (¶¶14 and 15.) The nurse further stated that on November 7, 2014, claimant was provided sick call but it was terminated because of inappropriate and threatening behavior and that treatment was unable to be provided because claimant refused to permit the nurse to examine his affected area. Accordingly, defendant argued that claimant's claim should be dismissed.
Claimant's opposition to the motion.
In opposing the defendant's motion (M-92968), claimant submitted a three paragraph affidavit that generally argued that it had no merit and the summary judgment motion was untimely. Despite being afforded an opportunity to do so, claimant declined to submit any additional answering papers. Claimant's affidavit was devoid of any substantive facts to address the multitude of substantive arguments proffered by the defendant, so he failed to refute any of the evidence submitted by the defendant. Moreover, the claimant did not demonstrate that there were any material questions of fact requiring a trial.
The Law
The purpose of summary judgment is to expedite all civil cases by removing from the Trial Calendar claims which can appropriately be resolved as a matter of law. "[W]hen there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated." (Andre v Pomeroy, 35 NY2d 361, 364 [1974].) To demonstrate entitlement to summary judgment, the defendant was required to establish with admissible evidence that it was entitled to judgment as a matter of law and that there were no material questions of fact necessitating a trial. (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see also Friends of Animals, Inc. v Associated Fur Manufacturers, Inc., 46 N2d 1065, 1068 [1979].)
The Court finds that defendant has met its burden of proof as to each cause of action set forth in the four claims and concurs with the defendant's legal conclusions. This Court does not recognize a need to recite the law cited by defendant, given that claimant has brought similar causes of action and has repeatedly been schooled on the applicable law. Furthermore, this Court has previously addressed claimant's claims involving medication and treatment, access to library services, improper pleadings, and de minimus injuries, so they will not be repeated here. (see Johnson v State of New York, UID No. 2018-051-503 [Ct Cl, Martin, J., Nov. 30, 2018].)
Contrary to the claimant's supposition, defendant's motion was timely since the Court set no deadline for dispositive motions. Further, this Court invited defendant to renew its application for relief by either making a summary judgment motion or moving to dismiss the claims. (see Johnson v State of New York, UID No. 2018-051-010 [Ct Cl, May 22, 2018].)
Accordingly, defendant's motion to dismiss OR, in the alternative, for summary judgment (M-92968) is granted, except for the request for sanctions, because sanctions are in effect as of this Court's November 2018 decision. The following claims are hereby dismissed in their entirety with prejudice: Claim no. 119323, Claim no. 119544, Claim no. 120837, and Claim no. 125274. Claimant's cross motion to dismiss (CM-93036) is denied.
January 14, 2019
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims