Claimant was previously warned against filing frivolous claims, but failed to limit his litigation accordingly. Sanctions are awarded requiring the Court's permission before filing any new claims.
|Claimant short name:||JOHNSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claim number(s):||118328, 118527, 118609|
|Judge:||DEBRA A. MARTIN|
|Claimant's attorney:||JOHNATHAN JOHNSON, PRO SE|
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
BY: CHRISTINA CALABRESE, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 30, 2018|
|See also (multicaptioned case)|
Claimant brought these claims for injuries arising out of incidents he alleged to have occurred at Upstate Correctional Facility. Trial by video conference was conducted on October 16, 2018, with claimant and the Assistant Attorney General at the Facility and the Court in Rochester. The parties consented to joinder of the claims for trial(1) because of the common issues involved, including witnesses and exhibits. Following each presentation of direct evidence by the claimant, defendant moved to dismiss, which was opposed, and the Court reserved its decision.
These 3 claims, along with 71 other open claims filed by this pro se inmate, were the subject of an extensive review by this Court, an Interim Order (Johnson v State of New York, UID No. 2017-051-054 [Ct Cl, Martin, J., Sept. 22, 2017]), and a final Decision and Order (Johnson v State of New York, UID No. 2018-051-010 [Ct Cl, Martin, J., May 22, 2018].) The purpose of the orders was to mandate a review of all the open claims by claimant and require he certify that none were frivolous when he considered the prior decisions in his cases. Since the State alleged sanctionable behavior and moved the Court to punish claimant for his decades of repetitious litigation, the Court's orders put claimant on notice that sanctions may be imposed if frivolous claims continued to be litigated. Claimant responded to the Court's Interim Order that his claims were not frivolous and he intended to proceed with all his open claims, so the oldest claims were scheduled for trial.
At trial, this inmate repeated many of the same causes of action of numerous prior claims that have been dismissed on motion or following trial. Further, these were exactly those causes of action addressed in the prior orders of this Court that claimant was warned not to pursue, at the risk of being sanctioned.
a. Medication refusal
Claimant has been housed at Upstate Correctional for many years. He has access to over-the-counter and prescription medication by a regulated process of doctors' orders and nurses' authorizations. Nursing protocol requires that when a nurse comes to the cell to hand out medications, the inmate must come to the cell door and state his name and DIN number to the nurse before any medication is issued. Nurse Administrator Nancy Smith has repeatedly testified at trials and in affidavits that the community standard of nursing care and DOCCS policy required that before treatment is given nurses must inquire of the inmate's name and DIN so that information can be verified with the picture ID on the outside of the cell. Claimant has taken the position that he is not required to identify himself because his name and DIN, along with his picture, are posted on his cell door, and that these requirements constituted harassment and violated DOCCS policy. He has admitted that when the nurse came to his cell door to administer his medication, he often would just point to the card on his door and, on occasion, would curse or become combative when the nurses took this as a refusal. He also admitted that he cannot recall the particular incidents alleged in his claims because of the passage of time, so both sides relied on the medical record to document his refusals.
Claimant's position that he does not have to articulate his name and DIN to get his medication has been rejected by the Court in well-reasoned decisions, which claimant ignored at the instant trial. (see Johnson v State of New York, UID No. 2016-038-115 [Ct Cl, DeBow, J., Sept. 9, 2016]; see also Johnson v State of New York, UID No. 2015-038-114 [Ct Cl, DeBow, J., Sept. 29, 2015]; Johnson v State of New York, UID No. 2015-038-112 [Ct Cl, DeBow, J., Sept. 29, 2015].)
Furthermore, claimant alleged in his many claims, both in those before this Court at trial, and those previously asserted, that he suffered from the denial of medication for his dry skin and stomach problems, and could not take showers without his non-allergic soap. Since it is undisputed that all he had to do was come to the cell door and state his name and DIN to the nurse to receive all the medication he allegedly needed, these complaints are not actionable.
Another frequent subject of claimant's litigation regarded the use of a flashlight by the nighttime correction officer (usually CO Robert Mclean) whose practice of shining a light into claimant's face while he was sleeping allegedly disturbed claimant's sleep and was done to harass him. Mclean has testified that it was his duty to determine that each cell contained a "live, breathing body" during periodic night rounds. As part of this process, he would shine a light into the cell at the inmate's head to cause some sort of movement to confirm the presence of a live body. He testified that illumination of the cell by the nightlight was not always effective because sometimes the light was out or no movement of the body was perceived. If the CO could not cause movement of the body, a team would be called to go into the cell.
DOCCS Directive 4933 provides: "night time rounds will be conducted in a manner that is not disruptive to the unit and does not interfere with inmates' sleep." Claimant argued that the policy of using a flashlight aimed at his face was done to interfere with his sleep, in violation of Directive 4933. However, claimant has been told by the Court that the use of the flashlight in this manner is neither actionable nor in violation of Directive 4933. (Johnson v State of New York, UID No. 2016-038-115 [Ct Cl, DeBow, J., Sept. 9, 2016].)
c. Law Library access
Claimant brought claims alleging that officers failed to turn in his slips for law library materials, which prevented his access to the library. This Court has rendered decisions addressing this issue in at least four of claimant's cases, and he was told, beginning in 2004, that "this court will not intervene on the issue of claimant's access to the law library… ." (Johnson v State of New York, UID No. 2004-019-508 [Ct Cl, Lebous, J., Jan. 20, 2004][internal citation omitted]; see Johnson v State of New York, UID No. 2016-038-549 [Ct Cl, DeBow, J., July 28, 2016]; Johnson v State of New York, UID No. 2015-038-572 [Ct Cl, DeBow, J., Nov. 13, 2015]; Johnson v State of New York, UID No. 2015-038-573 [Ct Cl, DeBow, J., Nov. 13, 2015].) In each case, the cause of action for DOCCS failure to provide law library access has been dismissed for failure to state a cause of action.
d. Failure to preserve videotapes
Claimant often inserted a separate cause of action alleging he asked DOCCS to preserve the videotape of an alleged incident or of all the incidents outlined in the claim. There was no allegation that the tapes were not preserved or that they would have documented any of the allegations, so such causes of action are without merit. Furthermore, although these claims were allegedly based on violation of a DOCCS Directive, claimant has been advised previously that claims based upon violations of directives are not viable and must be dismissed. (Johnson v State of New York, UID No. 2003-019-560 [Ct Cl, Lebous, J., Sept. 24, 2003]; Johnson v State of New York, UID No. 2015-038-575 [Ct Cl, DeBow, J., Nov. 13, 2015].
The relitigation of these issues must be considered in the context of the doctrine of collateral estoppel:
"The doctrine of collateral estoppel precludes a party from relitigating 'an issue which has previously been decided against him in a proceeding in which he had a fair opportunity to fully litigate the point' (Gilberg v Barbieri, 53 NY2d 285, 291; see, Schwartz v Public Administrator, 24 NY2d 65, 69). It is a doctrine intended to reduce litigation and conserve the resources of the court and litigants and it is based upon the general notion that it is not fair to permit a party to relitigate an issue that has already been decided against it."
(Kaufman v Eli Lilly & Co., 65 NY2d 449, 455 .) The only two requirements for invoking the doctrine are that the same issue must have been decided in the prior action and that the claimant had a full and fair opportunity to litigate the issue. (id. at 455.) These two requirements are clearly met in the four causes of action outlined above, with the only difference being the date of the incidents. To the extent that there are any other variations, the Court will follow the direction of the Court of Appeals:
"The doctrine, however, is a flexible one, and the enumeration of these elements is intended merely as a framework, not a substitute, for case-by-case analysis of the facts and realities. 'In the end, the fundamental inquiry is whether relitigation should be permitted in a particular case in light of ... fairness to the parties, conservation of the resources of the court and the litigants, and the societal interests in consistent and accurate results. No rigid rules are possible, because even these factors may vary in relative importance depending on the nature of the proceedings ...' (see, Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147, 153  [citations omitted])."
(Buechel v Bain, 97 NY2d 295, 304 .)
When applying the doctrine, fairness to the parties must be balanced. The Court understands that claimant is a pro se litigant, however the Court has taken considerable time, over the last decade, to explain the law in its decisions. The defendant has produced witnesses who testify or provide affidavits giving the same explanations for its actions, taking hours away from their work to do so. The Court has held days of trials on the same issues for this claimant, at the expense of other pro se litigants who consequently experience long delays in getting their day in court. Finally, the "relative importance" of these issues must be weighed against the claimant because he is either in full control of the situation, as in the case of the medication refusal, or subjected to one night or day of inconvenience, as in the case of the flashlight and library slips.
Since the defendant has not raised collateral estoppel in moving to dismiss these claims, the Court will not apply this doctrine as the basis for dismissal. However, claimant is now on notice of the applicability of it in his future trials and motions.
TRIAL OF CLAIMS
This claim was significantly narrowed by the Court's grant of partial summary judgment to defendant(2) , leaving only 3 days of alleged tortious behavior to be tried: (1) on April 8, 2010 when Physician's Assistant Johnson discontinued claimant's medication because of claimant's grievances; (2) negligent supervision of CO Mclean on March 17, 2010, who shined a flashlight in the claimant's eyes during the night and awakened him; and (3) on February 21, 2010 an officer called claimant a rapist in front of other inmates.
With respect to the incident on April 8, 2010, claimant alleged in his claim that PA Johnson "discontinued claimant's above medication due to numerous inmate grievance complaints filed by claimant against Nurse (Baker) in the month of March and April 2010. Which were done without evaluating claimant on April 8, 2010." [sic] At trial, claimant testified to a totally different series of events in which the correction officers told claimant to remove a string he had tied through a hole in his earlobe, which he refused to do and which refusal led to the officers lying to PA Johnson about the claimant and the discontinuance of medications. Other than his own testimony, claimant offered no proof of these allegations.
At trial, defendant called Nurse Administrator Nancy Smith, a Registered Nurse and the Administrator at Upstate since 2003. Also, Exhibit A, pages 1 and 3 (alternatively referenced as pages 2 and 4), was received into evidence regarding the April 8, 2010 allegation. She testified that with respect to that day, the medical record on page 1/2 stated that claimant was "non-compliant" because he refused to give his name and DIN number. Based on this refusal, contact with the claimant was terminated. On page 3/4, the record indicated that PA Johnson discontinued the A&D ointment and simethicone medication because inmate refused to come out of the cell to be evaluated to determine if a long-term medication order was still required. This medication was given on April 11, 2010 on a nurse's order, which is the procedure for over the counter medication such as these.
The medication-related allegations in Claim 118328 have a slightly different slant: that the PA discontinued the orders for over the counter medication because of claimant's behavior in refusing to come out of his cell to be evaluated, which claimant denied. The claimant offered no proof other than his own testimony that he did not refuse, but he is not credible on this issue because of the several versions of the facts presented in his claim and at trial. The medical record, Exhibit A, documented that he refused to come out of his cell on April 8 so that PA Johnson could evaluate his medical condition. His long history of refusal(3) and inappropriate behavior that resulted in him missing the dispensing of medications prove that it is frequently more important for him to miss his medication than to follow what he considers to be nonsensical rules. The Court finds the preponderance of the credible evidence supports dismissal of this allegation. Further, since there was no proof offered that claimant's medical condition on April 8, 2010 required that he be provided this medication, the Court agrees with the defendant's trial motion to dismiss on the ground that medical expert testimony was required to prove that he needed it. (see Johnson v State of New York, UID No. 2016-038-115 [Ct Cl, DeBow, J., Sept. 9, 2016].)
With respect to use of the flashlight by CO Mclean on March 17, 2010, claimant relied on the allegation as set forth in his claim, that at approximately 11:00 p.m. Mclean "purposely and intentionally" flashed his flashlight in the claimant's face, which claimant argued was done in violation of Directive 4933. Neither the claim nor claimant's testimony indicated that his sleep was disturbed that night by CO Mclean's flashlight. This Court previously dismissed claims of intentional tort against CO Mclean upon claimant's assertion that he was only alleging negligent supervision of Mclean for this incident. (Johnson v State of New York, UID No. 2016-038-549 [Ct Cl, DeBow, J., July 28, 2016].) As this claimant knows well, a cause of action for negligent supervision requires a showing that the employee in question was acting outside the scope of his employment. (see Johnson v State of New York, UID No. 2016-038-117 [Ct Cl, DeBow, J., Dec. 22, 2016]; Johnson v State of New York, UID No. 2015-038-573 [Ct Cl, DeBow, J., Nov. 13, 2015]; Johnson v The State of New York, UID No. 2013-038-110 [Ct Cl, DeBow, J., Nov. 26, 2013].) Claimant offered no evidence to support this cause of action for negligent supervision of Mclean, so it is dismissed for failure to meet his burden of proof.
With respect to the February 21, 2010 incident, claimant relied on the allegation as set forth in his claim and argued that his safety was put in jeopardy when the CO called him a "rapist" in front of other inmates. Defendant moved to dismiss this cause of action as a claim for harassment which is not actionable against the State. Claimant argued that it was not a claim for harassment but one for "failure to protect."
The Court grants defendant's motion. Even if this event occurred, which was not reported by claimant or documented in any way, claimant's claim of damages is speculative; he did not allege in the claim nor testify at trial that any harm came to him because of the statement. His "failure to protect" argument is specious and is another example of claimant's long history of litigating behavior of DOCCS employees that simply offended him. (see Johnson v State of New York, UID No. 2003-019-560 [Ct Cl, Lebous, J., Sept. 24, 2003].) The Court agrees with defendant that the allegation sounds more like one for harassment, which claimant has been told in prior decisions is not actionable. (see Johnson v State of New York, UID No. 2016-038-115 [Ct Cl, DeBow, J., Sept. 9, 2016]; Johnson v State of New York, UID No. 2015-038-572 [Ct Cl, DeBow, J., Nov. 13, 2015].)
The first, second, third and fourth causes of action alleged that various nurses failed to give claimant medication and soap for his dry skin and stomach conditions on 27 days, from May 7, 2010 to June 10, 2010. He admitted at trial that he occasionally became combative and may have used curse words when the nurses came to his cell. Claimant argued that a "new" policy was recently provided to him by the Attorney General's Office in another case. That policy, received as Exhibit 2, is a memo dated October 4, 2007 from Deputy Commissioner Lucien Leclaire, Jr., entitled "One on One Medications." The memo stated that it was to address incidents of inmates hoarding, selling or exchanging these medications, which created security and medical problems. Facility superintendents were directed to review their current procedures and determine if they were using the "best methods possible to control abuse." The memo then listed seven examples of issues to be considered, including "3. Inmate will present his/her ID to the R.N. unless his/her picture is posted at the cell door." This memo, claimant argued, proves that it is against DOCCS policy to require that he state his name and DIN if that information is posted on his cell door. However, it is clear from the text of the memo that it is not relevant to the issue of the community standard for medication administration by nurses or to the circumstances at issue in claimant's trials, so that argument is not persuasive.
As she has done at past trials, Nurse Administrator Nancy Smith testified to the entries in the claimant's medical records, Ex. A, for the days at issue. On each day, the entry stated words to the effect of "Refused to give name/DIN. Non-compliant", "abusive", and "NSC (nursing sick call) terminated." As this Court has found in the past, the nurses were justified in not providing treatment based on his refusal to respond to their simple request for identification and on his admittedly inappropriate behavior, so these causes of action are dismissed.
In the fifth cause of action, claimant alleged the CO refused to turn in his law library slips on May 9 and 16, 2010 so claimant could not get caselaw he needed for pending lawsuits. As discussed on page 4 above, this cause of action is without merit. At trial, claimant argued that Judge DeBow repeatedly but wrongfully ruled that the Court of Claims does not have jurisdiction to hear a state constitution violation. Claimant asserted that Boggs v State of New York (51 Misc 3d 376, 378 [Ct Cl 2015]) granted this Court jurisdiction to hear his claims regarding library access. Reliance on Boggs is misplaced, as this Court previously advised claimant, when, as here, an Article 78 proceeding is available. (see Johnson v State of New York, UID No. 2018-051-010 [Ct Cl, Martin, J., May 22, 2018].) Furthermore, claimant failed to allege or testify to any damages, thereby rendering this cause of action meritless. (Tavares v Amato, 954 F Supp 2d 79, 90 [NDNY 2013]; see also Lewis v Casey, 518 US 343, 362  (delays in providing law library access to inmates as long as 16 days are not constitutionally significant.) This cause of action is dismissed.
The sixth cause of action alleged that on five dates, claimant wrote to the disciplinary captain to preserve the videotapes for the five causes of action in the claim. Claimant argued at trial that this is a constitutional claim based on "access to courts" and a violation of Directive 4942, which was not introduced as an exhibit. This cause of action is discussed on page 5 above and is dismissed for the reasons stated.
The first, second, third, fourth and fifth causes of action all related to a series of events that began on June 10, 2010, when a prison guard allegedly fabricated a story that claimant refused to come out of his cell for a medical evaluation by Dr. Adams. That refusal resulted in Dr. Adams discontinuing orders for all prescription medications, which allegedly caused pain and suffering. Claimant further alleged that Nurse Baker asked a sergeant to retrieve all the medication claimant had in his cell, which was done on June 15, 2010. These actions were the subject of a grievance, the outcome of which claimant could not recall. Claimant testified that the doctor's denial of medication lasted through the end of 2011. Claimant also alleged that several nurses failed to provide over the counter medications almost every day in June 2010 because of his refusal to state his name and DIN.
The medical record for June 2010, Exhibit A, was received and the parties relied on the testimony by Nurse Administrator Nancy Smith about the nursing protocol. Exhibit A documented daily refusal by claimant to give his name and DIN, sometimes accompanied by swearing and harassment, all of which resulted in the termination of the nursing sick call (NSC).
As a rebuttal of claimant's testimony that the guards falsely told Dr. Adams that claimant refused to come out of his cell, defendant produced CO Andrew Streeter. He testified that on June 10, 2010, to enforce the directive that prohibited inmates from having body piercings, CO Streeter ordered claimant to remove a string looped through claimant's earlobe. Claimant refused to remove it, so CO Streeter denied claimant his medical call-out with Dr. Adams. Claimant testified that he did not recall this incident and took issue with this interpretation of the DOCCS policy about body piercing. The Court finds that the claimant's failure to recall the facts surrounding this incident renders his version not credible. The CO's version is also more consistent with claimant's routine of refusing to follow directions with which he disagreed.
Defendant moved to dismiss the cause of action about the discontinuance of medication by Dr. Adams as based on a medical malpractice theory, requiring expert testimony. The Court agrees because there is a question of whether the prescription medication was necessary to treat claimant's medical conditions which cannot be determined without expert testimony on that issue. Defendant also moved to dismiss the cause of action regarding the confiscation of medicine from claimant's cell as being the subject of administrative proceedings. The Court also agrees that it cannot interfere with DOCCS administrative process, which, as claimant is aware, can only be challenged in an Article 78 proceeding. (see Johnson v State of New York, UID No. 2016-038-117 [Ct Cl, DeBow, J., Dec. 22, 2016]; Johnson v State of New York, UID No. 2015-038-537 [Ct Cl, DeBow, J., June 12, 2015].)
The sixth cause of action is a "flashlight" claim based on CO Mclean's shining the light on claimant's face at 10:00 p.m. on June 27, 2010. Claimant relied on the statement of facts in his claim. Defendant provided the same testimony by CO Mclean about the procedures for night-time cell checks.
The causes of action about denial of medical treatment for refusing to provide his name and DIN and the "flashlight" claim are dismissed for the reasons previously discussed.
The Court has now devoted an entire trial day to allow claimant to relitigate causes of action that he knew were without legal basis, with no new facts, requiring hours of professional involvement by DOCCS staff, the Assistant Attorney General, and the Court of Claims judge and staff. The Court observed the vigor with which claimant cross-examined Nurse Administrator Nancy Smith and CO Mclean, and his demonstration of disdain for DSS Woodruff, all leading to the conclusion that he is pursuing these claims to harass them and keep them embroiled in never-ending litigation on the same issues. Claimant was previously warned that the Court would consider imposing sanctions if he continued to pursue frivolous claims after being given the opportunity to refrain from doing so(4) , and was given the opportunity to respond to the defendant's motion for sanctions before they were imposed.(5)
The Court finds that the pursuing a trial of these claims constituted frivolous behavior outlined in the New York Rules of Court:
"(c) For purposes of this Part, conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.
Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party."
(22 NYCRR 130-1.1).
Such frivolous behavior warrants sanctioning, which could be monetary or procedural. Courts have flatly enjoined pro se litigants from commencing more lawsuits as a response to being inundated with baseless or repetitious lawsuits. (see Bikman v 595 Broadway Assoc., 88 AD3d 455, 455-56 [1st Dept 2011]; Seibert v City of New York, 118 AD2d 845 [2d Dept 1986].) Other courts have imposed a monetary sanction and stayed all further proceedings of a claim pending payment. (Pettus v State of New York, UID No. 2009-015-188 [Ct Cl, Collins, J., July 16, 2009].) Here, such a penalty would not resolve this situation because there are potentially 70 repetitious claims. Courts have also recognized "the inadequacy of a monetary sanction as a deterrent to an indigent inmate", while fashioning an appropriate sanction for a serial litigator. (Faison v State of New York, 176 Misc 2d 808, 810-13 [Ct Cl 1998].)
Following the procedure laid out in Faison and other cases(6) , claimant shall be prohibited from filing claims pro se without the prior approval of a Judge of the Court of Claims in accordance with the following procedures:
(1) In order to obtain approval, claimant must serve the defendant(s) and file with
the Clerk an application for permission to file a claim within the times set forth in the Court of Claims Act § 10 for the service and filing of a claim;
(2) Claimant's application for permission to file a claim, served in the same
manner as any motion in this court, must contain a proposed claim and affidavit(s) of merit and support;
(3) When the claimant's motion for permission to file a claim, proposed claim and affidavit of merit are filed and served on the State, the motion will be assigned a return date and considered on submission. If the motion is granted, claimant shall file and serve the claim pursuant to the Court of Claims Act §§ 11 and 11-a. If denied, claimant shall not pursue thereafter any of the causes of action in that claim.
THEREFORE, Claim Nos. 118328, 118527 and 118609 are dismissed; and claimant is prohibited from filing any new claims without first seeking permission to do so from a Judge of the Court of Claims by the procedures set forth above.
This sanction shall remain in effect indefinitely.
Let judgments be entered accordingly.
November 30, 2018
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims
1. Although the parties and the Court referenced consolidation, it was their intent to join the claims for trial, but that they remain separate claims.
2. Johnson v State of New York, UID No. 2016-038-549 [Ct Cl, DeBow, J., July 28, 2016].
3. Fifteen instances of medication refusals were previously dismissed from this claim. (Johnson v State of New York, UID No. 2016-038-549 [Ct Cl, DeBow, J., July 28, 2016].)
4. See the Interim Order (Johnson v State of New York, UID No. 2017-051-054 [Ct Cl, Martin, J., Sept. 22, 2017]), and the final Decision and Order (Johnson v State of New York, UID No. 2018-051-010 [Ct Cl, Martin, J., May 22, 2018].)
5. The Court anticipates claimant's excuse that he could not access his legal papers to cull out those that were without merit or repetitious because DOCCS confiscated them. The Court considers this to be an untenable position because claimant's testimony in the trial of claim #115061 on October 15, 2018 was that his litigation materials were not removed from his cell until February 13, 2018 so he was in possession of them when he wrote to the Court on November 9, 2017 that he had no intention of eliminating any of his claims.
6. See also Brady v State of New York, UID No. 2007-028-559 [Ct Cl, Sise, P.J., July 16, 2007].