New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2006-037-013, Claim Nos. 106601, 106179, 107011, 107138, 106508, 106878, Motion Nos. M-71826, M-71857, M-71858, M-71859, M-71861, M-71862, CM-71904


Synopsis



Case Information

UID:
2006-037-013
Claimant(s):
JOHNATHAN JOHNSON, 89-A-1042
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):
106601, 106179, 107011, 107138, 106508, 106878
Motion number(s):
M-71826, M-71857, M-71858, M-71859, M-71861, M-71862
Cross-motion number(s):
CM-71904
Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Johnathan Johnson, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer
New York State Attorney General
By: Joseph F. Romani, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 30, 2006
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Pro se inmate Johnathan Johnson brings several motions for issuance of trial subpoenas duces tecum and for permission to proceed as a poor person. Defendant cross-moves for a protective order.

The following were read and considered with respect to these motions:
1. Claimant’s notice of motion (M-71826) filed June 7, 2006, and affidavit of pro se

Claimant Johnathan Johnson in support of motion for a trial subpoena sworn to June 1, 2006, with attached proposed subpoena, and a separate affidavit of pro se Claimant Johnathan Johnson in support of motion to proceed as a poor person sworn to June 1, 2006;

2. Letter from Assistant Attorney General Joseph F. Romani dated June 12, 2006 in

response to Claimant’s motion (M-71826);

3. Claimant’s notice of motion (M-71857) filed June 14, 2006, and affidavit of pro se

Claimant Johnathan Johnson in support of motion for a trial subpoena sworn to June 5, 2006, with attached proposed subpoena, and a separate affidavit of pro se Claimant Johnathan Johnson in support of motion to proceed as a poor person sworn to June 5, 2006;

4. Claimant’s notice of motion (M-71858) filed June 14, 2006, and affidavit of pro se

Claimant Johnathan Johnson in support of motion for a trial subpoena sworn to June 5, 2006, with attached proposed subpoena, and a separate affidavit of pro se Claimant Johnathan Johnson in support of motion to proceed as a poor person sworn to June 5, 2006;

5. Claimant’s notice of motion (M-71859) filed June 14, 2006, and affidavit of pro se

Claimant Johnathan Johnson in support of motion for a trial subpoena sworn to June 5, 2006, with attached proposed subpoena, and a separate affidavit of pro se Claimant Johnathan Johnson in support of motion to proceed as a poor person sworn to June 5, 2006;

6. Claimant’s notice of motion (M-71861) filed June 14, 2006, and affidavit of pro se

Claimant Johnathan Johnson in support of motion for a trial subpoena sworn to July 1, 2006,[1] with attached proposed subpoena, and a separate affidavit of pro se Claimant Johnathan Johnson in support of motion to proceed as a poor person sworn to June 1, 2006;

7. Claimant’s notice of motion (M-71862) filed June 14, 2006, and affidavit of pro se

Claimant Johnathan Johnson in support of motion for a trial subpoena sworn to June 1, 2006, with attached proposed subpoena, and a separate affidavit of pro se Claimant Johnathan Johnson in support of motion to proceed as a poor person sworn to June 1, 2006;

8. Notice of cross-motion (CM-71904) filed June 23, 2006, and affirmation of Assistant

Attorney General Joseph F. Romani dated June 21, 2006, in support of cross-motion for a protective order and in opposition to Claimant’s motion nos. M-71857, M-71858, M-71859, M-71861 and M-71862.


Filed papers:


Claim No. 106601 filed September 9, 2002; Answer filed October 10, 2002; Claimant’s Disclosure Request for Production of Documents dated December 20, 2002 and filed February 13, 2003; Letter of Assistant Attorney General Joseph F. Romani dated January 10, 2003 and received January 14, 2003, in response to Claimant’s discovery demands; and the April 7, 2003 Decision and Order of the Hon. Ferris D. Lebous denying Claimant’s motion to compel discovery and Defendant’s cross-motion for a protective order (Johnson v State of New York, April 7, 2003, Lebous, J., Claim Nos. 106601, 106878, Motion No. M-66431, Cross-Motion No. CM-66520, UID #2003-019-536).[2]


Claim No. 106179 filed June 5, 2002; Answer filed July 3, 2002; Claimant’s Disclosure Request for the Production of Documents dated August 9, 2002 and filed August 30, 2002; Defendant’s Responses to Claimant’s Disclosure Request for the Production of Documents filed September 3, 2002.


Claim No. 107011 filed November 29, 2002; Answer filed January 6, 2003; Claimant’s Disclosure Request for Production of Documents dated April 28, 2003 and filed June 4, 2003;[3] Defendant’s Reply to Disclosure Request for the Production of Documents filed June 4, 2003.


Claim No. 107138 filed December 30, 2002; Answer filed February 3, 2003; Claimant’s Disclosure Request for Production of Documents dated February 14, 2003 and filed February 26, 2003; Defendant’s Response to Demands for Production of Documents filed March 3, 2003.


Claim No. 106508 filed August 15, 2002; Answer filed September 20, 2002; Claimant’s Disclosure Request for the Production of Documents dated September 27, 2002 and filed October 7, 2002; Defendant’s Responses to Claimant’s Demands for Disclosure and Production of Documents filed October 10, 2002.


Claim No. 106878 filed November 4, 2002; Answer filed December 12, 2002; Claimant’s Disclosure Request for Production of Documents dated December 16, 2002 and filed February 13, 2003; Letter of Assistant Attorney General Joseph F. Romani dated January 10, 2003 and received January 14, 2003, in response to Claimant’s discovery demands; and the April 7, 2003 Decision and Order of the Hon. Ferris D. Lebous denying Claimant’s motion to compel discovery and Defendant’s cross-motion for a protective order (Johnson v State of New York, April 7, 2003, Lebous, J., Claim Nos. 106601, 106878, Motion No. M-66431, Cross-Motion No. CM-66520, UID #2003-019-536).


Decision
Pro se Claimant Johnathan Johnson presently has six claims scheduled to be heard during this Court’s July 13, 2006, pro se trial term to be held at Elmira Correctional Facility (Elmira). Unfortunately, it is difficult to ascertain with any specificity the exact theories of liability upon which his six claims are based. Generally, however, Claimant’s claims contain theories of liability based on assault, battery, harassment, retaliation, constitutional tort, and alleged violations of internal prison regulations. Because Claimant is not a person authorized to issue subpoenas (Chopak v Marcus, 22 AD2d 825 [1964]), he now moves before trial in each of these six claims for the issuance of judicial subpoenas duces tecum for the production at trial of certain documents and for permission to proceed as a poor person. For clarity, the Court has grouped similar motions for issuance of trial subpoenas together for discussion and separately addresses Claimant’s various motions for permission to proceed as a poor person and Defendant’s cross-motion for a protective order.

Claimant’s Motion Nos. M-71826 and M-71862 for Issuance of Subpoenas Duces Tecum

Claimant has brought motion no. M-71826 for the issuance of a judicial subpoena duces tecum addressed to the coordinator of inmate records at Southport Correctional Facility (Southport) and Attica Correctional Facility (Attica) for the production at trial of certain documents he generally alleges are relevant and necessary to the prosecution of claim no.106601. He has also brought a separate motion (M-71862) for the issuance of a judicial subpoena duces tecum addressed to the coordinator of inmate records at Southport for the production at trial of certain documents he generally alleges are relevant and necessary to claim no.106878.

Upon reviewing the respective claim files, however, it was noted that the documents Claimant has included on his proposed subpoena duces tecum in claim no.106601 are the same documents Claimant requested by his disclosure request for production of documents dated December 20, 2002, and the documents Claimant has included on his proposed subpoena duces tecum in claim no.106878 are the same documents Claimant requested by his disclosure request for production of documents dated December 16, 2002. Defendant responded to Claimant’s disclosure requests of December 20, 2002 and December 16, 2002 in a joint letter response dated January 10, 2003, objecting to Claimant’s requests as being overly broad, non-specific, burdensome, irrelevant, immaterial, and unnecessary to the prosecution of these claims.

By motion no. M-66431, Claimant moved this Court pursuant to CPLR 3124 for an order compelling Defendant to produce the documents requested by Claimant’s disclosure requests of December 20, 2002 and December 16, 2002. In a decision and order dated April 7, 2003, the Hon. Ferris D. Lebous found that Defendant’s joint letter response was proper and denied, in its entirety, Claimant’s motion to compel discovery (see Johnson v State of New York, Ct Cl, April 7, 2003, Lebous, J., Claim Nos. 106601, 106878, Motion Nos. M-66431, CM-66520, UID # 2003-019-536). This decision and order remains the law of the case.

The law of the case doctrine is a species of collateral estoppel. It applies to intra-action issues. Thus, once an issue has been decided on the merits, this doctrine makes that issue “binding not only on the parties, but on the court as well: no other judge of coordinate jurisdiction may undo the decision” (see Smith v State of New York, March 14, 2005, Patti, J., Claim No. 96846, Motion Nos. M-67814, M-68124, M-68210, UID #2005-013-005, quoting Siegel, NY Prac § 448, at 723 [3d ed.]). If Claimant had been unhappy with Judge Lebous’ April 7, 2003 decision and order, he could have sought leave to reargue his motion to compel or sought appellate review by the filing of a timely appeal. He chose neither option. This Court will not allow Claimant to seek discovery indirectly by issuing a subpoena duces tecum for documents he has been precluded from seeking directly. Claimant’s motion nos. M-71826 and M-71862 for the issuance of subpoenas duces tecum are denied.[4]

Claimant’s Motion Nos. M-71857, M-71858, M-71859, and M-71861 for Issuance of Subpoenas Duces Tecum
.

By these motions, Claimant is seeking the issuance of subpoenas duces tecum addressed to the coordinator of inmate records at Southport for the production at trial of certain documents which Claimant generally alleges are material and necessary to the prosecution of his claim nos. 106179, 107011, 107138, and 106508, respectively.[5] Once again, all of the documents requested by the proposed subpoenas were previously demanded by Claimant in various discovery demands served in each of these claims years ago. Defendant responded to each demand and informed the Claimant that the documents requested did not exist, were previously provided to Claimant, contained privileged and confidential information, were documents created by Claimant and presumably in his possession, were available in the facility law library, were available to Claimant upon payment of a photocopying charge of $.25 a page, or objected to by the Defendant on the grounds that the demands were overly broad, sought documents that were neither relevant nor necessary to the prosecution of his claim, and otherwise were meant to harass the Defendant. If Claimant was dissatisfied with any of these responses he could have made a motion at that time to compel discovery.[6] He chose not to move against Defendant’s responses or to prepay the reasonable photocopying charges requested by Defendant in its various responses to Claimant’s demands. There is no general provision which requires the State to pay litigation expenses brought against it and Civil Rights Law §§ 79 (3) and 79-a (3) provide that the State shall not be liable for any expenses relating to inmate litigation (see Shell v State of New York, 307 AD2d 761 [2003]; Gittens v State of New York, 175 AD2d 530 [1991]). This Court will, therefore, not issue subpoenas duces tecum to compel the production at trial of documents which Claimant could obtain at the facility library, or could have received simply by prepaying the reasonable photocopying charges requested. Motion nos. M-71857, M-71858, M-71859 and M-71861 are denied in their entirety. Notwithstanding, Defendant will be required at trial to allow the Claimant to view any document it has in its possession which is material and relevant to Claimant’s claims.

Claimant’s Motion Nos. M-71826, M-71857, M-71858, M-71859, M-71861, and M-71862 to Proceed as a Poor Person.


Claimant moves for leave to proceed as a poor person in all six of his claims scheduled for trial on July 13, 2006. Procedurally, there is no indication in Claimant’s motion papers or any proof submitted that any of his motions were served upon the appropriate county attorney as required by CPLR § 1101 (c). Failure to serve the county attorney is, in and of itself, a sufficient basis for denial of poor person status (see Sebastiano v State of New York, 92 AD2d 966 [1983]; Harris v State of New York, 100 Misc 2d 1015 [1979]). Moreover, Claimant failed to provide the Court with any information regarding the status of his inmate fund (see Holmes v State of New York, Ct Cl, September 9, 2003, Fitzpatrick, J., Claim No. 101728, UID #2003-018-252). Finally, in each of his motion papers, Claimant alleges that he is unable to pay the costs, fees and expenses necessary to pursue his claim. At this juncture, however, there are no remaining costs or fees required by the Court of Claims to prosecute these claims. It, therefore, appears that Claimant moved for poor person relief because he could not afford to pay the copying charges for documents demanded from the Defendant, or the witness fees or mileage associated with the issuance of trial subpoenas under CPLR § 8001. Were this Court to grant Claimant poor person status, however, such status would not relieve Claimant of his obligation to pay reasonable advance copying costs (see Harrison v State of New York, Ct Cl, February 17, 2006, Marin, J., Claim No. 109913, Motion No. M-70942, UID #2006-016-011), or the payment of witness fees or mileage associated with the issuance of trial subpoenas (see Burr v State of New York, Ct Cl, November 20, 2000, Corbett, J., Claim No. 97058, Motion No. M-62603, UID #2000-005-572). Accordingly, Claimant’s motions to proceed as a poor person are denied.

Defendant’s Cross-Motion CM-71904 for a Protective Order.
[7]

Defendant cross-moves for a protective order pursuant to CPLR 3103 allegedly to prevent further unreasonable annoyance, expense, and harassment by the Claimant in pursuit of his remaining 200 or so “meritless claims” pending with the Attorney General’s Office and for the imposition of sanctions pursuant to 22 NYCRR § 206.20 for frivolous, needless, harassing conduct. The Court alone will determine if any of Claimant’s remaining 200 or so claims are indeed meritless. But if Defendant truly believes that Claimant’s remaining claims are meritless, it is free to move for summary judgment or to bring any other dispositive motion it deems fit. Moreover, this Court notes that Defendant made a similar motion for a protective order in two of the six claims scheduled for trial on July 13, 2006, which was denied by the Hon. Ferris D. Lebous (see 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 #2003-019-536). While this Court recognizes the Defendant’s frustration in dealing with this Claimant, the Court denies Defendant’s cross-motion for a protective order and for the imposition of sanctions.

Based on the foregoing, it is hereby

ORDERED, that Claimant’s Motion Nos. M-71826, M-71857, M-71858, M-71859, M-71861 and M-71862 are denied in their entirety, and it is further

ORDERED, that Defendant’s Cross-Motion CM-71904 is denied in its entirety.



June 30, 2006
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. Claimant’s affidavit indicates that it was sworn to July 1, 2006, approximately two weeks after this motion was filed. An accompanying affidavit in support of Claimant’s application to proceed as a poor person and Claimant’s affidavit of service were sworn to before the same notary on June 1, 2006. Undoubtedly, the July 1, 2006 date on this affidavit was a clerical error only and this affidavit should have been noted as sworn to June 1, 2006.
[2]. This and other unreported Court of Claims decisions may be found on the Court’s web site at www.nyscourtofclaims.state.ny.us.
[3]. The file for claim no. 107011 contains a separate document also entitled, “Claimant’s Disclosure Request for Production of Documents.” This document was dated January 22, 2003 and filed February 26, 2003. Initially, it referenced claim no. 106601, but that number was written over by hand to read 107011. Unfortunately, many of Mr. Johnson’s claims reference identical dates and events. It is, therefore, difficult to ascertain if this separately filed discovery demand was intended for this claim file or for another. A comparison of Claimant’s demands filed February 26, 2003 and June 4, 2003, however, reveals that they seem to request the same documents. Thus, Defendant’s reply filed June 4, 2003, would be equally applicable to either demand.
[4]. By his letter of June 12, 2006, Defendant’s counsel has agreed to provide at least some of the documents listed on Claimant’s proposed subpoena duces tecum in claim 106601 at the time of trial. In light of this decision and order, however, the Court will not compel or expect the Defendant to do so.
[5]. The proposed subpoena accompanying Claimant’s motion no. M-71861 improperly requests the name and number of the inmate housed in A-Block, 4-Gallery on August 8 and 9, 2002. A subpoena duces tecum is for the production of documents at trial and, in some cases, for the trial testimony of an individual who can attest to the authenticity of the documents produced. It may not be used as a substitute for other discovery devices, i.e. interrogatories, which could have been served during the course of discovery. Furthermore, a subpoena duces tecum may not be used for the purpose of discovery, as part of a fishing expedition or to ascertain the existence of evidence (see Matter of Terry D., 81 NY2d 1042 [1993]; Matter of Decrosta v State Police Lab., 182 AD2d 930, 931 [1992]).
[6]. Claimant has a propensity for extensive litigation practice and is fully aware of the procedures for challenging responses to discovery demands pursuant to CPLR 3124 as he did in claim nos. 106601 and 106878 by motion no. M-66431 as discussed above.
[7]. Defendant cross-moves for a protective order in all of the Claimant’s claims scheduled for trial on July 13, 2006, except claim no. 106601.