The following papers were reviewed by the Court on this motion: Claimant's
Notice of Motion, Claimant's Affidavit, Claimant's Affirmation in Support of his
Good Faith Effort Attempt and annexed Exhibits A and B, Claimant's Affirmation
and annexed Exhibits A and B, Defendant's Affirmation in Opposition and annexed
Exhibits 1-4, and Filed Claim.
Claimant, Jonathan Odom, a pro se inmate, who currently resides at the
Attica Correctional Facility(Attica), has moved pursuant to Civil Practice Law
and Rules(CPLR) R 3124 for an order compelling discovery from defendant, the
State of New York.
Claimant puts forth numerous allegations of wrongdoing against defendant in
his claim which took place while he was incarcerated at the Downstate
Correctional Facility(Downstate). Specifically, claimant alleges, inter
alia, that he was assaulted by New York State Correctional Officers on April
1, 1998. Claimant states that this was done in retaliation to his filing of
numerous lawsuits against correctional personnel.
Initially, the Court notes that this matter had been scheduled for trial
before Judge Thomas J. McNamara on February 22, 1999. It is generally
inappropriate to continue discovery matters after a date for trial has been set,
especially, when the adjournment was for administrative reasons brought on by
claimant himself. However, the Court is cognizant of the fact that this case is
being promulgated by a pro se litigant and will entertain this one final
discovery motion at this time.
Claimant seeks an order from the Court compelling disclosure of all the items
requested in his January 6, 2000 Request for Production of Documents. Defendant
has responded by making available for inspection items 1-7 and 12 listed in
claimant's Request. Alternatively, defendant will provide claimant with copies
of these documents once it receives the costs of reproducing them. This is a
proper condition required by defendant since it is statutorily authorized.
Public Health Law §17 provides that a reasonable charge for paper copies
shall not exceed seventy-five cents per page. Additionally, the New York State
Codes Rules and Regulations Title 7, § 5.36 provides that fees for
photocopies of a department record shall be 25 cents per page, not exceeding 9
inches by 14 inches in size. The section goes on to state that the fees for
other types of copies shall be "reasonable amounts." This may be a moot point
since defendant is providing the documents for inspection by claimant.
Defendant objects to claimant's request for a copy of all reports and records
stating the reasons why claimant was placed into the Mental Health Unit on April
1, 1998 and copies of Dr. Abastilla's orders. Pursuant to Mental Hygiene Law
§33.13(c)1, this Court finds that the need for confidentiality
significantly outweighs the interests of justice and these records are not
discoverable by claimant.
Defendant objects to claimant's request for a copy of all criminal
proceedings, which took place at the Town of Fishkill Local Criminal Court,
heard in connection with the April 1,1998 incident. Defendant correctly points
out that these are public records. However, since defendant is also seeking to
obtain these records, it would seem to be in the interests of justice that if
these records are obtained by defendant that copies are given to claimant. A
fee for the photocopies would again be appropriate.
Defendant objects to the disclosure of treatment and medical records of the
correctional officers involved in the April 1, 1998 incident. The probative
value of a discovery request must be weighed against any safety and security
concerns involved in an action. Therefore, after taking into account all the
facts and circumstances surrounding this action as well as the relevance of this
discovery request, it would be inappropriate to permit the disclosure of these
Defendant properly objects to claimant's request for all outside hospital
records of medical treatment provided to him. These records are not within the
custody and control of defendant and therefore not discoverable through
Claimant requested a copy of the Use of Force Departmental Statewide Directive
#4944 from defendant. Defendant states that this information is readily
available to claimant in the law library of Attica. Since this request does not
seem unduly burdensome on defendant, the Court hereby directs it to provide
claimant with a copy of the directive.
Claimant also requested a copy of the Use of Force Departmental Statewide
Directive #4943 from defendant. Defendant objects to the production of this
directive on the basis of safety and security concerns for the correctional
facility and its staff. As previously stated, this Court is acutely aware of
such concerns and after weighing them against the probative value of the request
this Court finds that the requested directive is not discoverable by claimant in
Lastly, claimant seeks production of a copy of the 1999 edition of both the
DOCS Employee's Manual and the Medical Health Staff Employee's Manual. Defendant
objects due to relevance and that the request is overbroad. Defendant is correct
in both of its assertions. Since the incident in question occurred on April 1,
1998, there is no relevant reason to require the production of these 1999
manuals. Additionally, the request is overbroad and any future request should
delineate the specific relevant portions of the manuals.
Therefore, for the foregoing reasons, this motion is denied in part and
granted in limited part for the purposes heretofore mentioned.