Opinion
2019-0380
06-04-2019
Johnathan JOHNSON, Plaintiff, v. AARONE-BEANE, Prison Guard/Upstate; Geraldine Wilson, Nurse/Upstate Corr. Fac.; Donald Uhler, Superintendent/Upstate; Defendants.
JOHNATHAN JOHNSON, No.89-A-1042, UPSTATE CORRECTIONAL FACILITY, Post Office Box 2001, Malone, New York 12953 HON. LETITIA A. JAMES, Attorney General, State of New York, ATTENTION: GLEN FRANCIS MICHAELS, Esq., Assistant Attorney General, 43 Durkee Street, Suite 700, Plattsburgh, New York 12901
JOHNATHAN JOHNSON, No.89-A-1042, UPSTATE CORRECTIONAL FACILITY, Post Office Box 2001, Malone, New York 12953
HON. LETITIA A. JAMES, Attorney General, State of New York, ATTENTION: GLEN FRANCIS MICHAELS, Esq., Assistant Attorney General, 43 Durkee Street, Suite 700, Plattsburgh, New York 12901
Robert G. Main, Jr., J.
DECISION AND ORDER
Plaintiff is an inmate housed at Upstate Correctional Facility, operated by the New York State Department of Corrections and Community Supervision (hereafter, "DOCCS"). He commenced this action by filing a summons and verified complaint on May 6, 2019, pursuant to 42 United States Code § 1983, alleging violations of his civil rights. He seeks money damages from the defendants, employees of DOCCS, as well as an injunction. The matter is brought against the defendants in their individual capacities.
Plaintiff seeks poor person status pursuant to Civil Practice Law and Rules § 1101 (f). He also seeks leave to serve the summons and verified complaint by alternate means pursuant to Civil Practice Law and Rules § 308 (5).
Plaintiff alleges that the defendants are deliberately indifferent to his medical needs and that the deliberate indifference is retaliatory, due to plaintiff's filing of a number of grievances. Plaintiff's verified complaint does not identify the illness or illnesses which require medication. Plaintiff does not identify the medications of which he has allegedly been deprived. Plaintiff does not identify any specific consequences that he may have suffered as a result of the alleged deprivation, other than "[t]he denial of medication has caused Johnson to become illness, with unnecessary pain and suffering to date of these denial" [sic] (complaint at 3). Plaintiff does not identify any grievance or grievances which are the basis of the alleged retaliatory conduct. The entire verified complaint is pleaded in conclusory terms.
Plaintiff has commenced fifty-six (56) proceedings in this Court alone, as indicated by a listing of their docket numbers and the nature of the allegations, which follows.
2013-0125 ( 42 United States Code § 1983 proceeding)
2013-0152 ( 42 United States Code § 1983 proceeding)
2013-0339 ( 42 United States Code § 1983 proceeding)
2013-0340 ( 42 United States Code § 1983 proceeding)
2013-0525 ( 42 United States Code § 1983 proceeding)
2013-0619 ( 42 United States Code § 1983 proceeding)
2013-0898 ( 42 United States Code § 1983 proceeding)
2013-1065 ( 42 United States Code § 1983 proceeding)
2014-0012 ( 42 United States Code § 1983 proceeding)
2014-0121 ( 42 United States Code § 1983 proceeding)
2014-0214 ( 42 United States Code § 1983 proceeding)
2014-0333 ( 42 United States Code § 1983 proceeding)
2014-0517 ( 42 United States Code § 1983 proceeding)
2014-0704 ( 42 United States Code § 1983 proceeding)
2014-0958 ( 42 United States Code § 1983 proceeding)
2014-0998 ( 42 United States Code § 1983 proceeding)
2015-0044 ( 42 United States Code § 1983 proceeding)
2015-0066 ( 42 United States Code § 1983 proceeding)
2015-0173 ( 42 United States Code § 1983 proceeding)
2015-0220 ( 42 United States Code § 1983 proceeding)
2015-0363 ( 42 United States Code § 1983 proceeding)
2015-0446 ( 42 United States Code § 1983 proceeding)
2015-0475 ( 42 United States Code § 1983 proceeding)
2015-010 ( 42 United States Code § 1983 proceeding)
2015-0533 ( 42 United States Code § 1983 proceeding)
2015-0594 ( 42 United States Code § 1983 proceeding)
2015-0598 ( 42 United States Code § 1983 proceeding)
2015-0629 ( 42 United States Code § 1983 proceeding)
2015-0714 ( 42 United States Code § 1983 proceeding)
2015-0731 ( 42 United States Code § 1983 proceeding)
2015-0767 ( 42 United States Code § 1983 proceeding)
2015-0859 ( 42 United States Code § 1983 proceeding)
2015-0860 ( 42 United States Code § 1983 proceeding)
2015-0879 ( 42 United States Code § 1983 proceeding)
2015-0933 ( 42 United States Code § 1983 proceeding)
2016-0526 (New York State Civil Practice Law and Rules § 6301 action)
2017-0455 ( 42 United States Code § 1983 proceeding)
2017-0483 (New York State Civil Practice Law and Rules, article 78 proceeding)
2017-0596 (Action for Declaratory Relief and Damages)
2017-0609 ( 42 United States Code § 1983 proceeding)
2017-0709 ( 42 United States Code § 1983 proceeding)
2017-0830 ( 42 United States Code § 1983 proceeding)
2018-0061 ( 42 United States Code § 1983 proceeding)
2018-0169 ( 42 United States Code § 1983 proceeding)
2018-0175 (New York State Civil Practice Law and Rules, article78 proceeding)
2018-0301 (Action for Declaratory Judgment)
2018-0484 ( 42 United States Code § 1983 proceeding)
2018-0582 (Action for Injunction)
2018-0764 (Action for Injunction)
2018-0804 ( 42 United States Code § 1983 proceeding)
2019-0009 ( 42 United States Code § 1983 proceeding)
2019-0122 ( 42 United States Code § 1983 proceeding)
2019-0201 ( 42 United States Code § 1983 proceeding)
2019-0378 ( 42 United States Code § 1983 proceeding)
2019-0379 ( 42 United States Code § 1983 proceeding)
2019-0380 ( 42 United States Code § 1983 proceeding)
The vast majority of these cases have been dismissed as frivolous. The Court notes that the plaintiff has been banned from obtaining poor person status in the federal courts due to the number of his frivolous, malicious, or other non-actionable filings. Federal law bars an inmate from receiving status as a "poor person" if at least three prior proceedings, commenced by the inmate, were dismissed on certain grounds:
"In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury" ( 28 USCA § 1915 [g] ).
This so-called, federal "three strikes rule" is in effect regarding this plaintiff:
"A review of plaintiff's litigation history and his conduct during the course of this action makes it clear that to the plaintiff, litigation is a form of recreation of the type which the PLRA's [Prisoner Litigation Reform Act] three strikes provision was intended to curb. Plaintiff's repeated filing of actions in this and other courts not only unduly harasses prison officials, but burdens already over-taxed court resources and those of the Office of the Attorney General, which is called upon to defend against such claims" ( Johnson v. Adams, 2012 WL 3052957, *7 [ND NY, July 5, 2012, No. 9:10-CV-1082 (DNH/DEP)] ), report and recommendation adopted , 2012 WL 3062016, (ND NY, July 26, 2012, No. 9:10-CV-1082).
That Court also quoted the plaintiff's deposition testimony:
"Indeed, during his deposition Johnson essentially acknowledged that he himself was the cause of any deprivation of medication, and that were he truly at risk because of that deprivation he held the key to recurring treatment and medication, needing only comply with the required protocols, testifying as follows:
Q. Mr. Johnson, who is the person who's being allegedly deprived of anything as a result of your behavior?
A. Johnson.
Q. Thank you.
A. Ask me do I care.
Q. Okay. It's no sweat off your back then?
A. As long as I can put a lawsuit in against it, no, it's no sweat off my back...."
(Johnson v. Adams, supra , at *5).
In another federal case involving the plaintiff herein, Chief Judge Suddaby explained that this plaintiff has been barred from even commencing an action, as a poor person or otherwise, in the Northern District of New York without permission of the Chief Judge:
"[T]he Anti-Filing Injunction Order entered against [Johnson] by Chief Judge Gary L. Sharpe on July 27, 2012, ... prohibited him ‘from filing any document or pleading of any kind pro se in the Northern District of New York without leave of the Chief Judge and subject to the requirements outlined,’ see In re: Johnson, 12-MC-0047 , Anti-Filing Injunction Order (N.D.NY filed July 27, 2012) (Sharpe, C.J.)" ( Johnson v. Santamore , 2017 WL 4334136, *1 [ND NY Sept. 28, 2017, No. 9:14-CV-0676 (GTSDJS)] ).
Although New York state does not have a similar "three strikes rule" at this time, courts have discretion in granting, or denying, "poor person" status. Civil Practice Law and Rules § 1101 (f)(2) states that "[i]f the court determines that the inmate has insufficient means to pay the full filing fee, the court may permit the inmate to pay a reduced filing fee" (emphasis added). Notably, the statutory language gives the Court discretion to grant or deny the application.
A Court may deny an application for poor person status based upon the lack of merit of the underlying action (see Sledge v. Hesson , 274 AD2d 777 [3d Dept 2000] ; Dello v. Selsky , 135 AD2d 994 [3d Dept 1987] ). Similarly, authorization for alternative means of service may be "by such means and upon such conditions as Special Term deems suitable" ( Hanson v. Coughlin , 103 AD2d 949 [3d Dept 1984] ); see also Brady v. Coughlin , 111 AD2d 539 [3d Dept 1985] ). Further, there is no mandate for a court to grant an application for leave to use alternative methods of service on mere request, particularly when the applicant has a history of prolific and meritless litigation.
Many of plaintiff's previous filings, both in federal courts and this Court, included allegations of retaliation, medical indifference, and supervisory liability. The plaintiff has been repeatedly instructed about the allegations necessary to support such claims.
Retaliation
In dismissing prior retaliation claims made by this plaintiff, courts have carefully instructed him, personally, about allegations, in a complaint, that are necessary to support such a claim. The Court of Appeals for the Second Circuit noted that retaliation claims by inmates are particularly prone to abuse. Therefore, the pleadings alleging retaliation must be fact specific:
"Because of the potential for abuse, ‘we have insisted on a higher level of detail in [the] pleading[s],’ Gill v. Mooney , 824 F.2d 192, 194 (2d Cir. 1987), and held that ‘a complaint which alleges retaliation in wholly conclusory terms may safely be dismissed on the pleadings alone.’ Flaherty v. Coughlin , 713 F.2d 10, 13 (2d Cir. 1983). In Flaherty , we divided prisoner retaliation claims into three categories: (1)‘a retaliation claim supported by specific and detailed factual allegations which amount to a persuasive case ought usually to be pursued with full discovery;’ (2) ‘a complaint which alleges facts giving rise to a colorable suspicion of retaliation ... [s]uch a claim will support at least documentary discovery;’ (3) ‘a complaint which alleges retaliation in wholly conclusory terms may safely be dismissed on the pleadings alone ... [i]n such a case, the prisoner has no factual basis for the claim other than an adverse administrative decision and the costs of discovery should not be imposed on defendants.’ Id. " ( Johnson v. Eggersdorf , 8 Fed Appx 140, 144 [2d Cir 2001] ).
After the Johnson v. Eggersdorf, supra , decision, in 2001, plaintiff commenced other actions alleging retaliation. As recently as 2015, a federal court, again, explained, to this plaintiff, the necessity for detailed pleadings in retaliation cases:
"Because of the relative ease with which claims of retaliation can be incanted, courts have scrutinized retaliation claims with particular care. See Flaherty v. Coughlin , 713 F.2d 10, 13 (2d Cir. 1983), overruled on other grounds , Swierkiewicz , 534 U.S. at 508. As the Second Circuit has noted,
[t]his is true for several reasons. First, claims of retaliation are difficult to dispose of on the pleadings because they involve questions of intent and are therefore easily fabricated. Second, prisoners' claims of retaliation pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration. This is so because virtually any adverse action taken against a prisoner by a prison official even those otherwise not rising to the level of a constitutional violation can be characterized as a constitutionally proscribed retaliatory act.
Dawes , 239 F.3d at 491. Accordingly, claims of retaliation must be supported by specific facts; conclusory statements are not sufficient. Flaherty , 713 F.2d at 13.
Plaintiff alleges that Uhler and Zerniak retaliated against him for filing lawsuits and grievance against all of the Defendants and other prison personnel over the years. (Dkt. No. 24 at 5.) The filing of lawsuits and grievances is protected conduct for purposes of First Amendment retaliation claims. See Colon , 58 F.3d at 872 ; Graham v. Henderson , 89 F.3d 75, 80 (2d Cir. 1996). Therefore, the allegations in Plaintiff Amended Complaint plausibly show that Plaintiff was engaged in protected conduct.
Plaintiff has alleged that Uhler and Zerniak's retaliatory issuance of paper deprivation orders denied him the ability to pursue litigation pending in the Third Department and Court of Claims. (Dkt. No. 26 at 5—8.) The Court finds that impeding or preventing an inmate from pursuing constitutionally protected state court litigation in retaliation for the filing of lawsuits could constitute adverse action for purposes of a retaliation claim. Furthermore, Courts have held that theft, confiscation, or destruction of an inmate's legal documents can constitute an adverse action for purposes of a retaliation claim. See, e.g., Smith v. City of New York , No. 03 Civ. 7576(NRB), 2005 WL 1026551, at *3, 2005 U.S. Dist. LEXIS 7903, at *10 (S.D.NY May 3, 2005) (retaliatory destruction of prisoner's legal documents appears designed to deter plaintiff's exercise of constitutional rights and constitutes adverse action for purposes of a retaliation claim).
However, Plaintiff has failed to make a plausible showing that Uhler and Zerniak's adverse actions against him were causally connected to his exercise of protected First Amendment rights. Plaintiff's conclusory assertion that Uhler and Zerniak retaliated against him for filing lawsuits against all of the Defendants and filing grievances during the period 2010 through 2013 lacks the specificity required to state a claim for retaliation. See Flaherty , 713 F.2d at 13 (retaliation claims must be supported by specific facts).
Plaintiff's Amended Complaint is devoid of specific facts regarding the content of the deprivation orders allegedly issued by Uhler and Zerniak, when the orders were issued, and the facts and circumstances surrounding issuance of the orders. Plaintiff's Amended Complaint is likewise devoid of specific facts regarding the lawsuits he relies upon as protected conduct for his retaliation claim the defendants in each, the claims asserted, when they were commenced, the status or outcome, and the temporal proximity between lawsuits in which Uhler and Zerniak were named as defendants and their issuance of deprivation letters or Uhler's removal of Plaintiff's legal papers.
Because Plaintiff has failed to make a plausible factual showing of causation in his Amended Complaint, the Court recommends that his retaliation claim against Uhler and Zerniak be dismissed" ( Johnson v. McKay , 2015 WL 6126878, *7—8 (ND NY Sept. 3, 2015, No. 9:14-CV-0803 [BKS/TWD] ), report and recommendation adopted in part, rejected in part , 2015 WL 6125890 (ND NY Oct. 16, 2015, No. 9:14-CV-0803 [BKS/TWD] ).
The portion of the magistrate's recommendation with respect to the issue of retaliation was adopted by the District Court with leave to plaintiff to file a third amended complaint which properly alleges retaliation.
The matter was ultimately dismissed in 2017, as a sanction against the plaintiff, for violating the anti-filing injunction order issued by Judge Sharpe, referred to on page 4, supra.
A different federal court instructed the plaintiff in a succinct manner:
"What Johnson fails to appreciate, however, is that the R & R's recommendation of dismissal of the retaliation claim was premised on the more generic notion that there is an absence of proof that defendants had any knowledge of the grievances at the time Johnson alleges that they retaliated, which is fatal to the claim" ( Johnson v. Adams , 2016 WL 1178754, *3 [ND NY Mar. 23, 2016, No. 9:14-CV-811 (GLS/DEP)] ).
The cases cited, supra , involving this plaintiff, are federal cases using federal procedural rules. However, the Third Department has adopted the above standards of pleading with respect to inmates, in DOCCS custody, who allege retaliation by DOCCS employees for the inmate's engagement in constitutionally protected activities.
"As for plaintiff's retaliation claim against Edgar, plaintiff's amended complaint ‘fail[ed] to allege facts establishing the requisite causal nexus between the protected activity and the adverse action’ ( Diaz v. New York State Catholic Health Plan, Inc. , 133 AD3d 473, 474 [2015] [internal quotation marks and citation omitted]; see Whitfield-Ortiz v. Department of Educ. of City of NY , 116 AD3d 580, 581 [2014] ). In light of plaintiff's conclusory allegations in this regard, his claims against Edgar were properly dismissed for failure to state a cause of action" ( McFadden v. Amodio , 149 AD3d 1282, 1283—1284 [3d Dept 2017] ).
Here, there is no effort by the plaintiff to establish a causal nexus regarding the prior grievances and the alleged retaliation by ignoring his alleged "medical needs", except in the most conclusory terms.
Given plaintiff's extensive litigation history, which includes the issue of retaliation, he knows, or should know, that pleadings alleging retaliation must, both, be detailed and contain a causal connection between his prior grievances and the alleged deprivation of medical care. Here, plaintiff has failed to even identify the prior grievances, any illness from which he allegedly suffers, or any consequence caused by the alleged deprivation of medical care. Despite plaintiff's knowledge of pleading requirements, the verified complaint is entirely conclusory with respect to retaliation.
Deliberate Indifference to Medical Needs
The plaintiff has also been repeatedly instructed about the contents of pleadings that are necessary to support a claim of medical indifference. For example:
"To state an Eighth Amendment claim for denial of adequate medical care, a prisoner must demonstrate that prison officials acted with ‘deliberate indifference to serious medical needs.’ Estelle v. Gamble , 429 U.S. 97, 104 (1976). To state a claim for denial of medical care, a prisoner must demonstrate (1) a serious medical condition and (2) deliberate indifference. Farmer v. Brennan , 511 U.S. 825, 834-35 (1994) ; Hathaway v. Coughlin (‘Hathaway I ’), 37 F.3d 63, 66 (2d Cir. 1994).
The first prong is an objective standard and considers whether the medical condition is ‘sufficiently serious.’ Farmer v. Brennan , 511 U.S. at 834 (quoting Wilson v. Seiter , 501 U.S. 294, 297 (1991) ). The Second Circuit has stated that a medical need is serious if it presents ‘a condition of urgency that may result in "degeneration" or "extreme pain." ’ Chance v. Armstrong , 143 F.3d 698, 702 (2d Cir. 1998) (quoting Hathaway I , 37 F.3d at 66 ). Among the relevant factors to consider are ‘[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain.’ Id. (quoting McGuckin v. Smith , 974 F.2d 1050, 1059-60 (9th Cir. 1992) ). The second prong is a subjective standard requiring a plaintiff to demonstrate that the defendant acted with the requisite culpable mental state similar to that of criminal recklessness. Wilson v. Seiter , 501 U.S. at 301-03 ; Hathaway I , 37 F.3d at 66. A plaintiff must demonstrate that the defendant acted with reckless disregard to a known substantial risk of harm. Farmer v. Brennan , 511 U.S. at 836. This requires ‘something more than mere negligence ...[but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.’ Id. at 835 ; see also Weyant v. Okst , 101 F.3d 845, 856 (2d Cir. 1996) (citing Farmer v. Brennan , 511 U.S. at 835 ). Further, a showing of medical malpractice is insufficient to support an Eighth Amendment claim unless ‘the malpractice involves culpable recklessness, i.e., an act or a failure to act by the prison doctor that evinces "a conscious disregard of a substantial risk of serious harm." ’ Chance v. Armstrong , 143 F.3d at 702 (quoting Hathaway v. Coughlin ("Hathaway II "), 99 F.3d 550, 553 (2d Cir. 1996) ); see also Hernandez v. Keane , 341 F.3d 137, 144 (2d Cir. 2003) (citations omitted)" ( Johnson v. Santamore , 2016 WL 11480157, *4 [ND NY Apr. 19, 2016, No. 9:14-CV-676 (GTS/DJS)] ), report and recommendation adopted , 2016 WL 3528015 [ND NY June 23, 2016, No. 9:14-CV-676 (GTSDJS)] ).
Despite being so instructed, the plaintiff has failed to even allege a medical condition in his verified complaint, let alone that it is "sufficiently serious" to merit Eighth Amendment protection. He has also failed to allege any injury as a result of the deprivation.
Johnson v. Santamore , supra , was not the first (or last) time when plaintiff was given instruction regarding the sufficiency of medical indifference claims. The instances include:
Johnson v. Gummerson , 198 F3d 233 (2d Cir. 1999)
Johnson v. Wala , 2017 WL 1133366, *3 (ND NY Mar. 3, 2017, No. 9:14-CV-1151 [LEK/DJS] ), report and recommendation adopted, 2017 WL 1133420 (ND NY Mar. 24, 2017, No. 9:14-CV-1151 [LEK/DJS] )
Johnson v. Wala , 2017 WL 1133420, *1 (ND NY Mar. 24, 2017, No. 9:14-CV-1151 [LEK/DJS] )
Johnson v. Connolly , 2008 WL 268331, *2 (ND NY Jan. 30, 2008, No. 9:07-CV-1237[TJM/DEP] ), aff'd sub nom . Johnson v. Miles , 355 Fed Appx 444 (2d Cir. 2009)
Johnson v. McAlinn , 101 F3d 107 (2d Cir. 1996)
Johnson v. White , 2016 WL 3920242, *3 (ND NY July 15, 2016, No. 9:14-CV-00715 [MAD/DJS])
Johnson v. Gagnon , 2016 WL 5408161, *4 (ND NY Sept. 28, 2016, No. 9:14-CV-916 [MAD/DEP] )
Johnson v. Adams , 2016 WL 6604129, *5 (ND NY July 25, 2016, No. 9:14-CV-0811 [GLS/DEP] ), report and recommendation adopted , 2016 WL 6603218 (ND NY Nov. 8, 2016, No. 9:14-CV-0811 [GLS/DEP] )
There being no allegation of any medical condition, nor any allegation as to any consequence from the alleged denial of medication, the portion of the plaintiff's cause of action alleging deliberate indifference by defendants to plaintiff's medical needs lacks merit as pleaded.
Supervisory Responsibility :
Plaintiff alleges that defendant, Donald Uhler, "failed to supervise. Nor remedial this continuous denial of doctors Ordered prescriptions medications denial" [sic] (complaint at 3). Having failed to adequately plead any illness, prescription, or denial thereof, the portion of the cause of action alleging a failure of supervision must also, logically, fail, as did a prior case brought by this plaintiff against defendant, Donald Uhler.
"Because I have concluded that the complaint fails to plausibly allege the requisite personal involvement of defendants Clark and Grant, defendants Rock, Bishop, and Uhler cannot be held liable in their supervisory capacities for the absence of a constitutional violation committed by their subordinates. See, e.g., Jacoby v. Conway , No. 10—CV—0920, 2013 WL 1559292, at *12 (W.D.NY Apr. 10, 2013) (‘[S]upervisory defendants cannot be held liable for inadequate training or supervision when the officers involved in the incident do not violate plaintiff's constitutional rights. Absent a violation, plaintiff's allegations against [the superintendent and deputy superintendent] also fails.’)" ( Johnson v. Gagnon , 2015 WL 1268199, *11 [ND NY Mar. 19, 2015, No. 9:14-CV-916 (MAD/DEP)] ).
Additionally, this plaintiff has been repeatedly instructed about the pleading requirements regarding supervisory claims made pursuant to 42 United States Code § 1983.
" ‘Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [ section] 1983.’ Wright v. Smith , 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield , 950 F.2d 880, 885 (2d Cir. 1991) ; McKinnon v. Patterson , 568 F.2d 930, 934 (2d Cir. 1997) ). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show ‘a tangible connection between the acts of a defendant and the injuries suffered.’ Bass v. Jackson , 790 F.2d 260, 263 (2d Cir. 1986). It is well established that a supervisor cannot be liable under section 1983 solely by virtue of being a supervisor, ‘and [liability] cannot rest on respondeat superior. ’ Richardson v. Goord , 347 F.3d 431, 435 (2d Cir. 2003) ; Wright , 21 F.3d at 501.
It is well-established that a supervisory official's receipt of grievances or letters, coupled with a failure to respond, without more, is insufficient to establish his personal involvement in the constituted deprivations alleged under section 1983. See Parks v. Smith , No. 9:08-CV-0586, 2011 WL 4055415, at *14 (N.D.NY Mar. 29, 2011) (McAvoy, J. adopting report and recommendation by Lowe, M.J.) (citing Rivera v. Goord , 119 F. Supp. 2d 327, 344-45 (S.D.NY 2000) (‘A prisoner's allegation that a supervisory official failed to respond to a grievance is insufficient to establish that official's personal involvement’)). Because plaintiff has not offered any record evidence showing anything more than that defendant Rock could have received grievances related to complaints about Johnson's medical treatment, no reasonable factfinder could conclude that defendant Rock was personally involved in any of the allegations giving rise to plaintiff's claims in this action" ( Johnson v. Adams , 2016 WL 6604129, *5 [ND NY July 25, 1916, No. 9:14-CV-0811 (GLS/DEP)] ) report and recommendation adopted , 2016 WL 6603218 [ND NY Nov. 8, 2016, No. 9:14-CV-0811 (GLS/DEP)] ).
Again, this plaintiff has received the above instruction in several cases decided prior to the decision in Johnson v. Adams, supra :
Johnson v. Fischer , 2011 WL 6739520, *2 (ND NY Dec. 22, 2011, No. 9:11-CV-386 [GLS/DRH] )
Johnson v. Wala , 2015 WL 4542344, *2 (ND NY July 27, 2015, No. 9:14-CV-1151 [LEK/RFT] )
Johnson v. Connolly , 2010 WL 2628747, *2 (ND NY June 25, 2010, No. 9:07-CV-1237 [TJM/DEP] )
Johnson v. Fischer , 2011 WL 6945706, *2 (ND NY Nov. 28, 2011, No. 9:11-CV-386 [GLS/DRH] ), report and recommendation adopted , 2011 WL 6739520 (ND NY Dec. 22, 2011, No. 9:11-CV-386 [GLS/DRH] )
The lack of anything more than conclusory statements in the verified complaint, together with plaintiff's knowledge of the pleading requirements, as well as the lack of any properly pleaded underlying constitutional violations committed by defendant Uhler's subordinates, renders this portion of the complaint meritless.
Given the obvious lack of merit of the allegations contained in the verified complaint, the Court may, and will, deny the plaintiff's motions for poor person status and for alternative means of service of the summons and verified complaint. The Court relies on Sledge v. Hesson , 274 AD2d 777 [3d Dept 2000], Dello v. Selsky , 135 AD2d 994 [3d Dept 1987] ), Hanson v. Coughlin , 103 AD2d 949 [3d Dept 1984] ); and Brady v. Coughlin , 111 AD2d 539 [3d Dept 1985] in reaching this conclusion.
More importantly, the denial of the plaintiff's motions is academic, as the Court will also, sua sponte , dismiss the complaint. Sua sponte dismissals are frequently subject to reversal on appeal. For example, in Village of Sharon Springs v. Barr , 165 AD3d 1445, 1446 (3d Dept 2018), the Court stated that the dismissal of a complaint, without a motion, was inappropriate. On the other hand, the same court affirmed a sua sponte dismissal of an action commenced by an inmate where the trial court found the verified petition to be deficient on its face ( Richards v. Cuomo , 88 AD3d 1043, 1044 [3d Dept 2011] ).
The validity of a sua sponte dismissal of a complaint, even upon defendants' default, has been upheld where the cause(s) of action lack(s) "viability" ( Aprea v. New York State Board of Elections , 103 AD3d 1059, 1061 [3d Dept 2013] ).
Where a plaintiff is a vexatious litigant, as is the case herein, sua sponte dismissals have been affirmed.
"Order, Supreme Court, New York County (Louis York, J.), entered August 26, 1999, which dismissed pro se plaintiff's complaint sua sponte and enjoined plaintiff from initiating any further litigation against defendant without prior court approval, unanimously affirmed, with costs.
The sua sponte dismissal of plaintiff's complaint was a proper exercise of discretion in view of his many frivolous motions and repeated disregard of court orders (cf., Wehringer v. Brannigan , 232 AD2d 206, 207, appeal dismissed 89 NY2d 980 ; Kihl v. Pfeffer , 94 NY2d 118, 122-123 ). It was also a proper exercise of discretion to enjoin plaintiff from initiating any further litigation against defendant without prior court approval in order to prevent his further use of the courts as a means of harassing and embarrassing defendant (see , Matter of Sud v. Sud , 227 AD2d 319 ; Novel v. Salzberg , 253 AD2d 684, lv. denied 92 NY2d 816, rearg denied 93 NY2d 849, cert denied 527 US 1007, reh denied 527 US 1055 ; see also , Jones v. Maples , 257 AD2d 53 ; Jones v. Trump , 1997 WL 277375, *8-9, 1997 US Dist LEXIS 7324, *26-27 [SD NY, May 27, 1997, 96 Civ. 2995 (SAS) ], affd 1998 US App LEXIS 23531 [2d Cir, Sept. 21, 1998], cert denied 527 US 1003 )" ( Jones v. Maples , 286 AD2d 639 [1st Dept 2001] ).
This plaintiff has repeatedly been declared to be a vexatious litigant by both federal and state courts. The Appellate Division, Third Department has, alone, dismissed, or affirmed the dismissal of, twenty-seven (27) cases filed by plaintiff:
Johnson v. Annucci , 161 AD3d 1471, 1472 (3rd Dept 2018)
Johnson v. Uhler , 155 AD3d 1212, 1213 (3rd Dept 2017)
Johnson v. State , 153 AD3d 1059 (3rd Dept 2017)
Johnson v. Annucci , 153 AD3d 1059, 1061 (3rd Dept 2017), leave to appeal denied , 30 NY3d 904 (2017)
Johnson v. State , 151 AD3d 1140 (3rd Dept 2017)
Johnson v. Annucci , 147 AD3d 1123 (3rd Dept 2017)
Johnson v. Annucci , 146 AD3d 1259, 1260 (3rd Dept 2017)
Johnson v. State , 140 AD3d 1558 (3rd Dept 2016)
Johnson v. State , 140 AD3d 1561 (3rd Dept 2016)
Johnson v. State , 140 AD3d 1562 (3rd Dept 2016)
Johnson v. State , 140 AD3d 1560 (3rd Dept 2016)
Johnson v. State , 140 AD3d 1559, 1560 (3rd Dept 2016)
Johnson v. State , 140 AD3d 1559 (3rd Dept 2016)
Johnson v. Annucci , 138 AD3d 1361, 1362 (3rd Dept 2016)
Johnson v. Neidl , 130 AD3d 1110, 1111 (3rd Dept 2015)
Johnson v. Fischer , 89 AD3d 1295, 1296 (3rd Dept 2011)
Johnson v. Corbitt , 87 AD3d 1214, 1215 (3rd Dept 2011)
Johnson v. State , 77 AD3d 1034 (3rd Dept 2010)
Johnson v. Evans , 76 AD3d 1164, 1165 (3rd Dept 2010)
People ex rel. Johnson v. Fischer , 69 AD3d 1100, 1101 (3rd Dept 2010)
People ex rel. Johnson v. Burge , 47 AD3d 1168, 1169 (3rd Dept 2008)
Johnson v. Goord , 290 AD2d 844, 844 (3rd Dept 2002)
Johnson v. McGinnis , 289 AD2d 823 (3rd Dept 2001)
Johnson v. Racette , 282 AD2d 899, 900 (3rd Dept 2001)
Johnson v. Ricks , 278 AD2d 559, 559 (3rd Dept 2000)
Johnson v. Selsky , 272 AD2d 798, 799 (3rd Dept 2000)
Johnson v. Coombe , 236 AD2d 669 (3rd Dept 1997)
This plaintiff has burdened the Department of Corrections and Community Supervision, as well as its counsel—The Office of the New York State Attorney General, with decades of frivolous litigation in both state and federal courts as outlined, only partially, in this lengthy Decision and Order. When confronted with the frivolity of his litigation, he has even stated:
"A. Ask me do I care.
Q. Okay. It's no sweat off your back then?
A. As long as I can put a lawsuit in against it, no, it's no sweat off my back...." ( Johnson v. Adams , 2012 WL 3052957, *5 [ND NY July 5, 2012, No. 9:10-CV-1082 (DNH/DEP)] ), report and recommendation adopted , 2012 WL 3062016 (ND NY July 26, 2012, No. 9:10-CV-1082 [DNH/DEP]).
As outlined, supra , plaintiff files repetitive actions while totally disregarding careful instruction in prior decisions about the proper contents of pleadings. Therefore, pursuant to Jones v. Maples , 286 AD2d 639 (1st Dept 2001), this Court will dismiss this proceeding, with prejudice.
In addition, plaintiff will be enjoined from commencing any action against any DOCCS employee in this Court.
We enjoin plaintiff from commencing further proceedings against defendant without prior judicial permission, in light of her history of frivolous and abusive litigation, including this meritless action" ( Cangro v. Marangos , 160 AD3d 580 [1st Dept 2018], appeal dismissed, 32 NY3d 947 [2018] ).
In Schermerhorn v. Quinette , 28 AD3d 822, 823 (3d Dept 2006), the Third Department recognized the authority of a trial court to issue such an Order. However, the Court stated that the sanctioning Court must provide a record explanation of how plaintiff's conduct was egregious and constituted an abuse of the judicial process.
NOW, THEREFORE , for the reasons set forth herein, it is
ORDERED that plaintiff's motions for poor person status and alternative service be, and the same hereby are denied; and it is further
ORDERED that the verified complaint be, and the same hereby is, dismissed, with prejudice; and it is further
ORDERED that plaintiff be, and he hereby is, enjoined from commencing any action in this Court, which names any employee of the New York State Department of Corrections and Community Supervision as a defendant, without obtaining prior leave of this Court; and it is further
ORDERED that the clerk of this court, that is the Franklin County Clerk, shall return to the plaintiff herein any complaint, verified or unverified, and any petition, verified or unverified, other than a proceeding pursuant to article 78 of the Civil Practice Law and Rules, without filing the same, in which the plaintiff attempts to commence any action or proceeding against any employee of the New York State Department of Corrections and Community Supervision, other than a proceeding pursuant to article 78 of the Civil Practice Law and Rules, unless such complaint or petition shall be accompanied by an endorsement by a Justice or Acting Justice of this Court authorizing such commencement; and it is further
ORDERED that a copy of this Decision and Order shall be forwarded separately to the Superintendent of the correctional facility at which the plaintiff is currently confined with the direction that said copy accompany the plaintiff to any subsequent correctional facility or facilities where he might be confined in order that said copy of this Decision and Order be filed with the chief clerk of the Supreme and County Courts and the County Clerk in said county(ies); and it is further
ORDERED that the plaintiff submit to the chief clerk of the Supreme and County Courts, in any county where he may be confined, a draft verified complaint or verified petition, in any action or proceeding which he desires to commence against any employee of the New York State Department of Corrections and Community Supervision, other than a proceeding pursuant to article 78 of the Civil Practice and Rules, for forwarding to such Justice or Acting Justice as might be assigned to such an action or proceeding, for the purposes of determining whether the plaintiff shall receive permission to commence such action or proceeding.