Opinion
# 2019-051-010 Claim No. 121245 Claim No. 127944 Claim No. 123251 Claim No. 120685 Motion No. M-92781 Motion No. M-92888 Cross-Motion No. CM-92941
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 motion to dismiss and, in the alternative, for summary judgment sought to dismiss serial pro se litigant's four claims is granted except for a single cause of action for intentional tort that was not addressed by the defendant and pro se claimant's cross motions to dismiss defenses are denied as moot or unfounded.
Case information
| UID: | 2019-051-010 |
| 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): | 121245, 127944, 123251, 120685 |
| Motion number(s): | M-92781, M-92888 |
| Cross-motion number(s): | CM-92941 |
| 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 in defendant's motion to dismiss claim nos. 121245, 127944, 123251 and 120685 (M-92888), claimant's motion to dismiss defendant's defenses (M-92781) and claimant's cross motion to dismiss defendant's second motion to dismiss (CM-92941):
1. Notice of Motion with Affirmation of Paul F. Cagino, AAG and attached exhibits, filed September 25, 2018 (M-92888);
2. Claimant's Motion to Dismiss Defendant's Defenses with attached Memorandum of Law, filed August 3, 2018 (M-92781);
3. Defendant's Memorandum of Law, sworn to September 26, 2018;
4. Claimant's Cross Motion to Dismiss Defendant's Second Motion to Dismiss, filed October 9, 2018;
5. Filed papers: claims, verified answers.
Previously, this Court stayed the four 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].) Thereafter, the Court denied defendant's 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].)
Initially on July 27, 2018, the defendant filed a motion to dismiss the four claims (M-92641), pursuant to CPLR 3211 (a) (2) and (7) 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 August 3, 2018, the claimant filed a motion to dismiss the defendant's defenses, which was converted to a motion (M-92781) when the defendant withdrew its motion by letter dated August 13, 2018. Claimant's motion sought to dismiss the defendant's defenses under CPLR 3211 (b) because (1) the motion was meritless; (2) request for summary judgment relief was untimely; and (3) facts were unavailable to claimant and based on CPLR 3212 (f), the motion should be denied. Claimant's affidavit was devoid of any substantive facts to refute the defendant's motion papers.
On September 25, 2018, the defendant again filed a motion to dismiss the four claims (M-92888), pursuant to CPLR 3211 (a) (2) and (7), for lack of subject matter jurisdiction and failure to state a cause of action, or, in the alternative, for summary judgment under CPLR 3212. Claimant filed a second motion to dismiss the defendant's defenses (CM-92941) which merely renewed the grounds stated in his original cross motion.
A. Claim no. 120685.
Claimant asserted six causes of action that arose while claimant was an inmate at Upstate Correctional Facility. In the first cause of action, claimant alleged that as of November 2011 he had not received a decision regarding his October 2010 application for clemency submitted by Executive Clemency Board to the Governor. The second and third causes of action alleged that a nurse denied him medical treatment on November 29, 2011 and failed to provide him sick call and medical treatment on November 30 and December 1, 2, 5, 2011. Claimant alleged in the fourth cause of action that on December 1, 2011 the defendant violated DOCCS directive #4933 and a Central Office Review Committee decision when it deprived him of writing paper for his personal and legal mail. In the fifth cause of action, claimant asserted that from October 4, 2011 thru December 2011, in violations of DOCCS rules and regulations, a correction officer prevented him from filing freedom of information requests for superintendent hearing tapes needed to file disciplinary appeals. The sixth cause of action alleged that on December 5, 2011, a correction officer deprived claimant of his personal mail and a "doctor's-ordered [sic]" evening meal. Claimant's stated purpose in filing the claim was "[t]o recover monetary damages from the violation of their own rules and regulations malicious acts, and intentional Act of Negligences [sic]" and sought $150,000 [pgs 3 & 4 of claim]. The damages alleged by claimant were "mental and emotional stress, headaches, stomach stress, pain and suffering, due to dry and burning skin, and sinus congestion." (id at 4.)
In its motion papers, defendant averred that claimant was well aware that there is no cause of action recognized in the Court of Claims for interference with legal mail. Accordingly, his cause of action for the failure to receive any correspondence regarding his application for clemency must be dismissed. As to the second and third causes of action, defendant argued that it terminated claimant's sick call because of his improper behavior and failure to comply with well known sick call procedures. The defendant asserted that the fourth cause of action failed because it either sounded in a federal violation, over which this Court has no jurisdiction, or it alleged a violation of a prison directive for which there is no cause of action. Likewise, defendant contended that the fifth cause of action was improper because this Court had no jurisdiction to review an administrative action. As to the sixth cause of action, defendant maintained that claimant's conclusory allegation was insufficient to state a cause of action for medical malpractice and no cause of action existed for denial of a meal. Similarly, defendant submitted that claimant was well aware that a violation of an interval mail rule does not create a cause of action.
Attached to the defendant's motion papers was the affidavit of Nurse Administrator Nancy Smith, along with a copy of the nursing protocol that governed medication and treatment delivery to inmates at Upstate Correctional Facility, and a copy of claimant's pertinent medical records. The affidavit provided specific facts that addressed claimant's general allegations of lack of medical treatment. As to November 29 and 30 and December 2 and 5, 2011, the affidavit substantiated that claimant was non compliant with the facility's policies and rules governing delivery of medical services; namely, his refusal to turn on or uncover his cell light and his refusal to give his name and DIN number. Claimant's medical records were checked and the affiant confirmed that he did not request sick call or seek emergency sick call on December 1, 2011.
B. Claim no. 121245.
Claimant stated five causes of action against defendant that arose while he was an inmate at Upstate Correctional Facility. In the first cause of action, claimant alleged that on March 30, April 1, 4, 5, 6, 9, 14, 15, 16, 19 and 20, 2012, a nurse denied claimant medical treatment for his allergies. In the second cause of action, claimant alleged on March 29, 30, and April 5, 9, 10, 16, 17, 18 and 23, 2012, a correction officer deprived him right to sign for his legal mail in violation of DOCCS directive 4421. The third cause action alleged that a correction officer violated DOCCS directive 4933 when he was kept in waist chains to meet a visitor. Violations of DOCCS directives 4932 and 4933 were the subject of the fourth cause action in which claimant alleged his sheets and towels were wrongfully removed on April 3, 2012. In the fifth cause of action, the claimant alleged he was denied notary services in violation of DOCCS directives 4483 and 4933. Claimant summarized his claim as seeking money damages in the amount of $150,000 for "violation of their own directives, 4933, 4421, 4483, and 4932. And failure to supervise they [sic] subordinates and failure supervise the facility [pg 4 of claim]." Claimant alleged damages included "mental and emotional stress, headaches, skin irritations, lack of showers, lack of sleep, stomach distress." (id.)
Defendant contended that the first cause of action must be dismissed because, as the claimant was well aware, non-compliance with sick call procedures was 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, his sick call was terminated because when the nurse arrived at his cell he was non-compliant with sick call procedures as documented in the attached medical records. (¶ 15 of Smith affidavit.) The remaining causes of action had no legal merit because there is no cause of action for money damages for the failure of correction officers to follow DOCCS rules and regulations.
C. Claim no. 123251.
Claimant asserted three causes of action against defendant while claimant was an inmate at Upstate Correctional Facility. In the first cause of action, claimant alleged that on September 9, 2013 correction officers violated DOCCS directive 4932 when they falsely accused claimant of refusing to surrender a cup and to be handcuffed, which resulted in an improper use of tear gas and a cell extraction during which he was assaulted. He further alleged that the officers destroyed his sheets, pants, and court papers and confiscated his shoes. The second cause of action alleged that on September 9 and 11, 2013, defendant deprived him of notary services to notarize this claim. The third cause of action alleged that on September 9, 2013, defendant refused to provide claimant the "doctor ordered" meal and a supervising officer refused to investigate claimant's complaint regarding the omission, resulting in stomach pains and headaches. Claimant's stated his purpose for filing the claim was
"To recover monetary damages for the injuries sustain[ed] from assault and battery by [officers] . . ., failure to follow their own rules and regulation. Retaliatory acts. Failure to protect claimant from prison guard. And violations of Directives 4932, 4933 and 4483. Violation of a doctor's ordered diet meals. And the failure to supervise subordinates and the facility [sic] (pg 6 claim)."
Claimant sought $50,000 and alleged the following injuries: "mental and emotional stress, mental anguish, headaches, arm injuries, shoulders, back, and legs. And Pain and suffering. And stomach pains." (id.)
Defendant argued that the first cause of action sounded in bailment and must be dismissed because claimant failed to comply with the statutory prerequisites. The remaining causes of action were without merit because the omission of providing a meal was inadequately pled and there is no cause of action for monetary damages for a correction officer's alleged failure to follow DOCCS rules and regulations. However, defendant did not specifically address the claimant's intentional tort claim based on the September 9, 2013 cell search.
D. Claim no. 127944.
Claimant stated two causes of action that stemmed from his incarceration at Upstate Correctional Facility. The first cause of action alleged a correction officer issued a false report regarding confiscation of his headphones on March 20, 2016. The second cause of action alleged that on March 25, 2016, the Inmate Grievance Program Supervisor falsely communicated that a decision would be forthcoming after the completion of the hearing. Claimant's alleged stated purpose of the claim was "[t]o recover damages for the violations of their own Rules and Regulation Directive 4040. And Failure to Supervise the employees and the Facility, Negligence [sic] (pg 3 of claim)." Claimant sought $150,000 for the following alleged injuries "emotional Auguish [sic] mental stress."
The defendant argued that claimant's causes of action appeared to challenge the handling of his grievances and his remedy to challenge the process and outcome of the administrative proceedings was an Article 78 proceeding commenced in State Supreme Court.
Claimant's opposition to the motion.
In initially opposing the defendant's motion (M-92781), claimant submitted a three paragraph affidavit, generally arguing that it had no merit, the summary judgment motion was untimely, and "the facts are unavailable to oppose the motion [see pages annexed] herewith." Claimant's affidavit was devoid of any substantive facts to address or refute the multitude of substantive arguments proffered by defendant or demonstrate that there were material facts at issue necessitating a trial. Claimant's memorandum of law did not identify the alleged facts that were unavailable to claimant. Claimant's reply to the defendant's motion and in support of his second cross motion to dismiss defendant's defenses (CM-92941) was a three paragraph affidavit in which he renewed the grounds set forth in his initial motion. Despite being provided an opportunity to do so, the claimant declined to submit any additional answering papers.
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, 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 NY2d 1065, 1068 [1979].)
The Court finds that defendant has met its burden of proof as to each cause of action and concurs with the defendant's legal conclusion, except the assault and battery cause of action contained in Claim no. 123251, which was not addressed in the motion. The Court does not perceive a need to recite the law cited by the defendant, nor that which this Court has previously provided (Johnson v State of New York, UID No. 2018-051-503 [Ct Cl, Martin, J., Nov. 30, 2018]).
Claimant's cross motions are denied because they are without substance in the law and are unsupported by any facts.
As to the surviving cause of action of assault and battery, the defendant's motion were deficient and claimant failed to sustain his burden of demonstrating that the defendant's defenses lacked merit. (see Fuentes v State of New York, UID No. 2018-040-072 [Ct Cl, McCarthy, J., Aug. 8, 2018].)
Accordingly, defendant's motion to dismiss and for summary judgment (M-92888) is granted except for the cause of action for assault and battery contained in Claim no.123251, and for defendant's request for sanctions because claimant is already under a prior sanction order (Johnson v State of New York, UID No. 2018-051-503 [Ct Cl, Martin, J., Nov. 30, 2018]). The following claims are hereby dismissed in their entirety with prejudice: Claim no. 121245, Claim no. 120685, and Claim no. 127944. All causes of action, except the assault and battery cause of action, stated in Claim no. 123251 are dismissed with prejudice. Claimant's motions to dismiss defendant's defenses (M-92781) and (CM-92941) are denied.
January 11, 2019
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims