New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK , #2007-044-542, Claim Nos. 110280, 111892, 109864, Motion No. M-72780


Synopsis


Claimant's motion to reargue Court's decision dismissing three of his claims is denied for failure to establish that the Court misapprehended the facts or misapplied the law in its determination.

Case Information

UID:
2007-044-542
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):
110280, 111892, 109864
Motion number(s):
M-72780
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
JOHNATHAN JOHNSON, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 24, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, previously moved to compel discovery in 13 separate claims. Defendant opposed the motion and cross-moved to dismiss 12 of those claims. This Court issued a decision and order dated November 14, 2006 (Johnson v State of New York, Ct Cl, Nov. 24, 2006, Schaewe, J., Claim Nos. 111983; 110411; 110471; 109372; 110280; 110504; 110512; 110281; 111009; 111204; 111684; 111892; 109864, Motion No. M-72152, Cross Motion No. CM-72153) which granted defendant’s cross motion to the extent that Claim Nos. 111983, 110411, 110471, 109372, 110280, 110512, 111009, 111204, 111892, and 109864 were dismissed in their entirety. The first cause of action in Claim No. 110504, and the first, third and fourth causes of action in Claim No. 110281, were also dismissed. Claimant’s motion to compel disclosure was granted only to the extent that defendant was required to respond to Claimant’s Disclosure Requests filed on March 29, 2006 in Claim No. 110281, as those requests pertained solely to the second and only remaining cause of action therein. The remainder of claimant’s motion was denied as moot. Claimant now moves for reargument with respect to dismissal of Claim No. 110280, Claim No. 111892, and Claim No. 109864. Defendant opposes the motion. In Claim No. 110280, claimant asserted four causes of action alleging that: (1) claimant was wrongfully placed on a restricted diet as a disciplinary penalty (at a hearing held October 8, 2004) because of a finding that he violated various prison rules on October 5, 2004, which finding was subsequently reversed upon claimant's appeal; (2) claimant was wrongfully placed on a restricted diet and lost six months of 'good time credits' as a disciplinary penalty (at a hearing held on October 4, 2004) based upon a finding that he violated various prison rules on September 28, 2004, which finding was subsequently reversed upon claimant's appeal; (3) on December 2, 2004, the restricted diet imposed at a hearing held October 8, 2004 was invoked notwithstanding that such penalty was allegedly suspended until April 6, 2005; and (4) despite the two reversals of disciplinary action as referenced above, claimant was wrongfully placed in full restraints because various Southport officials fabricated misbehavior reports.

With respect to the first two causes of action in Claim No. 110280, which appear to seek damages for punishment imposed where the disciplinary hearings were subsequently reversed, the Court held that “[t]here is no allegation or other indication that the administrative order reversing the findings/penalties was based upon a violation of defendant’s rules and regulations governing the disciplinary proceedings.” Claimant asserts that the Court overlooked Directive 4932 and the relevant case law as it pertains to the hearing officer's failure to review a videotape which claimant alleged was relevant to the disciplinary hearing. While a violation of that directive could subject the State to liability, claimant provided no proof on the prior motion that the basis for the administrative reversals was the hearing officer’s failure to view the videotape.[1] Moreover, he has provided no such evidence on this motion.

The third cause of action alleges that a penalty was imposed even though it had been suspended at the disciplinary hearing. As stated in the Court’s prior decision (id.), once a subsequent charge of misbehavior was substantiated, the hearing officer was entitled to impose the suspended penalty under 7 NYCRR 254.7 (a) (4).

The fourth cause of action alleges that claimant was the victim of the fabrication of misbehavior reports, and as a result was wrongfully placed in restraints. As this Court has repeatedly stated in various decisions addressed to similar claims by this claimant, the appropriate remedy for an allegedly fabricated misbehavior report is to proceed with the hearing, administratively appeal an adverse determination, and then pursue a CPLR article 78 proceeding (see e.g. Johnson v State of New York, Ct Cl, Oct. 27, 2003, Lebous, J., Claim No. 107621, Motion No. M-67430, Cross Motion No. CM-67474 [UID # 2003-019-565]; Zulu v State of New York, Ct Cl, May 21, 2001, Patti, J., Claim Nos. 96973 and 96974, Motion Nos. M-63183 and M-63184 [UID # 2001-013-006]).

Claimant’s failure to establish that the Court misapprehended the facts or misapplied the controlling law in its determination of the motion and cross motion as it pertained to Claim No. 110280 is fatal to this motion for reargument (see CPLR 2221; Foley v Roche, 68 AD2d 558, 567-568 [1979]).

In Claim No. 111892, claimant alleges that a Southport mail clerk destroyed a piece of claimant's personal mail on October 30, 2005, and that claimant’s request that defendant retain the pen-pal correspondence during the grievance procedure was denied. Even if claimant could prove a violation of the applicable regulations, claimant has access to alternative remedies such as the inmate grievance procedure and CPLR Article 78 review. Accordingly there is no private cause of action for money damages based upon the alleged violation (see Bennet v State of New York, Ct Cl, Feb. 21, 2006, Patti, J., Claim No. 111391, Motion No. M-70855 [UID # 2006-013-003]; Campolito v State of New York, Ct Cl, Apr. 27, 2000, Collins J., Claim No. 94670 [UID # 2000-015-507]; see also Matter of McKenna v Goord, 245 AD2d 1074 [1997], lv denied 91 NY2d 812 [1998]).

Claimant’s failure to establish that the Court misapprehended the facts or misapplied the controlling law in its determination of the motion and cross motion related to Claim No. 111892 is once again fatal to this motion for reargument (see CPLR 2221; Foley v Roche, supra).

The first cause of action in Claim No. 109864 alleges that employees of the Department of Correctional Services, contrary to directives, seized and destroyed his letter to his mother, which contained another letter. 7 NYCRR 720.3 (e) governs defendant’s conduct in handling an inmate’s non-privileged outgoing mail and, even if violated, does not give rise to a private cause of action for money damages when claimant has other remedies such as the inmate grievance process and CPLR article 78 review (see Bennet v State of New York, supra; Campolito v State of New York, supra; see also Matter of McKenna v Goord, supra).

Claimant’s second cause of action in Claim No. 109864 contends that a Southport official fabricated a misbehavior report in retaliation for claimant's refusal to testify in an investigation by State Police. Once again, this court does not have jurisdiction over claims concerning alleged retaliatory misbehavior reports (see Zulu v State of New York, supra) as “[t]he proper venues for so-called retaliation claims are the inmate grievance procedure and Article 78 proceedings, not the Court of Claims” (Johnson v State of New York, Ct Cl, Oct. 27, 2003, Lebous, J., Claim No. 107621, Motion No. M-67430, Cross Motion No. CM-67474 [UID # 2003-019-565]).

Claimant’s failure to establish that the Court misapprehended the facts or misapplied the controlling law in its determination of the motion and cross motion related to Claim No. 109864 is fatal to this motion for reargument also (see CPLR 2221 [d] [2]; Foley v Roche, supra).

To the extent that claimant seeks renewal on any of these claims, his failure to either set forth newly discovered evidence which was not available on the prior motion or to show a change in the law which would affect the previous decision is also fatal (see CPLR 2221 [e] [2]; Foley v Roche, supra at 568).

Claimant’s motion M-72780 is denied in its entirety.


May 24, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion for reargument:

1) Notice of Motion for Reargument filed on January 5, 2007; Affidavit of Johnathan Johnson sworn to on December 7, 2006; and Memorandum of Law dated December 7, 2006.

2) Affirmation in Opposition of Joseph F. Romani, AAG, dated February 2, 2007, and attached Exhibit A.

[1]. Surprisingly, there is no allegation concerning the basis for the reversals in the claim either.