New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2003-019-560, Claim No. 107926, Motion Nos. M-67182, M-67242


Synopsis


Claimant's motions to supplement claim are denied.

Case Information

UID:
2003-019-560
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):
107926
Motion number(s):
M-67182, M-67242
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
JOHNATHAN JOHNSON, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
September 24, 2003
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, makes these two successive motions for leave to supplement his claim pursuant to CPLR 3025. The State of New York (hereinafter "State") opposes both motions.[1]


The Court has considered the following papers in connection with these motions:
  1. Claim, filed June 25, 2003.
  2. Verified Answer, filed August 5, 2003.
  3. Notice of Motion No. M-67182, dated July 28, 2003 and filed July 31, 2003.
  4. Affidavit of Johnathan Johnson, in support of Motion No. M-67182, sworn to July 28, 2003.
  5. Proposed Supplement Claim, sworn to July 28, 2003.
  6. Affirmation of Joseph F. Romani, AAG, in opposition to Motion No. M-67182, dated August 14, 2003, and filed August 18, 2003.
  7. Notice of Motion No. M-67242, dated August 8, 2003, and filed August 13, 2003.
  8. Affidavit of Johnathan Johnson, in support of Motion No. M-67242, sworn to August 8, 2003.
  9. Proposed Second Supplemental Claim, sworn to August 8, 2003.
  10. Affirmation of Joseph F. Romani, AAG, in opposition to Motion No. M-67242, dated September 9, 2003, and filed September 11, 2003.
The original claim alleges causes of action that include theories of harassment of claimant by correction officers, constitutional violations arising from threats by another inmate to throw feces at claimant and the failure of correction officers to intervene; and various other alleged misdeeds of correction officers, all occurring during claimant's incarceration at Southport Correctional Facility (hereinafter "Southport") in June 2003. This claim was filed with the Clerk of the Court on June 25, 2003. The State filed a Verified Answer on August 5, 2003.


This court and other courts have previously addressed this litigant's propensity for extensive litigation practice. (Johnson v State of New York, Ct Cl, April 7, 2003, Lebous, J., Claim Nos. 106601 & 106878; Motion No. M-66431, Cross-Motion No. CM-66520, pp 3-4 [UID No. 2003-019-536]).[2] A review of this court's files reveals that claimant has made at least 5 other motions to amend and/or supplement with respect to 5 separate claims. (Johnson v State of New York, Ct Cl, August 5, 2002, Lebous, J., Claim No. 104447, Motion No. M-65415 [UID No. 2002-019-557]; Johnson v State of New York, Ct Cl, June 19, 2002, Lebous, J., Claim No. 105402, Motion No. M-65129 [UID No.2002-019-539]; Johnson v State of New York, Ct Cl, December 9, 2002, Lebous, J., Claim No. 106508, Motion No. M-65903 [UID No. 2002-019-595]; Johnson v State of New York, Ct Cl, March 6, 2003, Lebous, J., Claim No. 107011, Motion No. M-66388 [UID No. 2003-019-524]; Johnson v State of New York, Ct Cl, March 6, 2003, Lebous, J., Claim No. 106601, Motion No. M-66387 [UID No. 2003-019-525].

In any event, the court has reviewed the proposed additions under both pending motions. The proposed "supplemental claim" and proposed "second supplemental claim" contain theories of liability based upon retaliation, constitutional tort, and violations of internal prison regulations and include, but are not limited to, the following factual allegations:


Proposed "supplemental claim" (Motion No. M-67182):[3]
•another inmate paid a third inmate "to throw "two" cups of feces in front of my cell" (Supplemental Claim, ¶ 1);

•prison guards refused to take photo of feces and cups (Supplemental Claim, ¶ 7);

•video tape taken of feces (Supplemental Claim, ¶ 8);

•put claimant out of hearing on July 23, 2003; (Supplemental Claim, ¶ 10);

•teased claimant for videotape destruction and refused meals (Supplemental Claim, ¶ 11);

•prison guards were conspiring together (Supplemental Claim, ¶ 15);

•"claimant has been writing numerous complaints...about the continuously inappropriate conduct by prison guard...to no avail." (Supplemental Claim, ¶ 17).

Proposed "second supplemental claim" (Motion No. M-67242)
:
•"failure to protect with 2 carbon copies" (Second Supplement Claim, ¶ 1);

•"threats that these enemies on that Gallery are making toward claimant to throw, feces, piss, and spit on claimant whenever claimant comes out of the showers" (Second Supplement Claim, ¶ 5);

•failure to respond to claimant's "request for a cell move" (Second Supplement Claim, ¶ 6);

•"denied showers by prison guard" (Second Supplement Claim, ¶ 11);

•"issuing of false and fabricated misbehavior reports and failure to protect claimant etc. Are all retaliatory acts because of claimant's pending Civil Rights Actions. These retaliatory acts are continuing." (Second Supplement Claim, ¶ 15);

•another inmate "threw a cup [unauthorized] of feces at claimant striking the wall of the gallery";

•"when claimant ducked the feces hit off the wall on to the claimant's back area" (Second Supplement Claim, ¶ ¶ 16 & 17).

Based upon the foregoing allegations and for the same reasons set forth in the many prior Decisions & Orders of this court addressing similar motions by this claimant, this court finds the proposed supplements to be insufficient as a matter of law. This court has previously stated to this litigant that retaliation, constitutional tort violations, and violations of prison directives are not viable causes of action in this venue. (Johnson v State of New York, Ct Cl, April 7, 2003, Lebous, J., Claim Nos. 106601 & 106878, Motion No. M-66431, Cross-Motion No. CM-66520 [UID No. 2003-019-536] citing Augat v State of New York, 244 AD2d 835, 837, lv denied 91 NY2d 814 [constitutional torts]; Zulu v State of New York, Ct Cl, May 21, 2001, Patti, J., Claim No. 96973 & 96974; Motion Nos. M-63183 & M-63184, UID No. 2001-013-006 [retaliation claims]; A. Rabb Alamin/R. Price v State of New York, Ct Cl, April 26, 1999, McNamara, J., Claim No. 98122, p 2 [violation of a regulations or directives]). As such, the court declines to exercise its discretion and will deny claimant's motions to supplement this claim. To the extent that the State's opposing papers seek affirmative relief based upon its affirmative defenses, this request is not properly before the court because the State failed to submit a notice of cross-motion pursuant to CPLR 2215. (Matter of Briger, 95 AD2d 887, 888).


In view of the foregoing, it is ORDERED, that claimant's motions to supplement this claim, Motion Nos. M-67182 & 67242, are DENIED.


September 24, 2003
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]
The State's opposing papers relative to Motion No. M-67242 were filed several days late due to an apparent oversight in the Attorney General's office. The court finds no prejudice in accepting the State's late submission. (CPLR 2214 [c]; 22 NYCRR 206.9 [b]).
[2]
Selected unreported decisions from the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decision.htm
[3]
The court has summarized the allegations for the most part, but quoted from the proposed pleadings wherever noted. Any quotations, however, do not include misspellings and stylistic notations found throughout claimant's papers.