New York State Court of Claims

New York State Court of Claims

PARKER v. THE STATE OF NEW YORK, #2003-032-081, Claim No. 105753, Motion Nos. M-66789, CM-66854


Causes of action for deprivation of rights guaranteed by the United States Constitution and for racial discrimination are dismissed. Claimant's request for a hearing pursuant to Civil Rights Law §50-a is denied, on the ground that the material sought could only be used to establish that the correction officer had been accused of the use of excessive force in the past, and such evidence cannot be used to establish that he performed a similar act on the occasion giving rise to this lawsuit.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Anthony Parker, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Belinda A. Wagner, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
August 20, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arose on December 14, 2001 at Franklin Correctional Facility. Claimant alleges that he was approached by Correction Officer Dewey in the gymnasium during recreation period, taken to a private room, and then physically and verbally assaulted by the officer. He sets forth three causes of action: for excessive use of force, for violation of his eighth amendment rights against cruel and unusual punishment, and for discriminatory treatment relating to his race and religion. Claimant has moved for an order striking defendant's answer for failure to respond to discovery demands and defendant has cross-moved for partial summary in its favor. The Court will first consider the defendant's motion..


Defendant seeks an order dismissing the second cause of action on the ground that this Court does not have jurisdiction to hear civil actions for alleged violations of the United States Constitution.
This point of law is well established. No cause of action against the State of New York exists for alleged violations of an individual's rights under the United States Constitution (Thomas v New York Temp. State Commn. on Regulation of Lobbying, 83 AD2d 723 [3d Dept 1981], affd 56 NY2d 656), nor is the State a "person" amenable to suit under 42 USC § 1983 (Will v Michigan Dept. of State Police, 491 US 58 [1989]).
Defendant also seeks dismissal of the third cause of action on the ground that claimant has failed to allege any facts to support his claim that physical force was "discriminately inflicted" on him because of his race and religion (claim, ¶10). A review of the allegations supports defendant's argument. The Correction Officer allegedly used racial epithets when assaulting claimant, but this allegation in and of itself, does not establish that the assault was racially motivated, or that any other class of prisoners was treated differently by him. In any event, the Court of Appeals has held that the applicable provision of the State Constitution[1] is not self executing and consequently cannot give rise to a constitutional tort (Brown v State of New York, 89 NY2d 172, 190),[2] and claimant is not pursuing any of the State's statutory avenues of relief from discrimination. Claimant's third cause of action, must also be dismissed.


On February 20, 2003, claimant served a demand for discovery and inspection (Parker affidavit, attachment) and defendant's response was served the following month (Wagner affirmation, Exhibit C). Claimant contends that defendant "willfully" refused to comply with some of the discovery demands. There are three types of documents that claimant contends defendant has wrongly withheld: 1) witnesses' statements, 2) photographs made of claimant on the day of the incident, and 3) records relating to Correction Officer D. Dewey, including employee records, inter-departmental reprimands, complaints, grievances and investigations.

As part of the matter that is "material and necessary" to prosecution and defense of an action, a party is entitled to the names and addresses of the witnesses who saw the incident giving rise to the claim, who had firsthand knowledge of it, or who had notice of the existence of a defective condition that is alleged to have caused the injury (Skowronski v F&J Meat Packers, Inc., 210 AD2d 392 [2d Dept 1994]; Zellman v Metropolitan Transp. Auth., 40 AD2d 249 [1973]). There is no such requirement, however, that a party be given statements made by the witnesses. Statements taken by or for the opposing party in anticipation of litigation or for trial need not be disclosed except in certain circumstances not relevant here (CPLR 3101[d][2]; DeGourney v Mulzac, 287 AD2d 680 [2d Dept 2001]; Salzer ex rel. Salzer v Farm Family Life Ins. Co., 280 AD2d 844 [3d Dept 2001] ). Defense counsel properly withheld any statements except the Inmate Misbehavior Report that was written by Officer Dewey.

In response to the request for photographs, counsel for defendant supplied very poor quality photocopies of the photographs that had been taken of claimant immediately after the incident but maintained that the State was under no obligation to provide duplicates or a certificate of authenticity of reproduction (Defendant's response, ¶4). In opposition to claimant's motion, it was revealed that the Attorney General does not have the computer disk on which the photographs were stored (Wagner affirmation, ¶5[b]). CPLR 3101(i) requires "full disclosure of any films, photographs, video tapes or audio tapes" involving a party. Defense counsel argues that these photographs are not relevant because claimant acknowledges that his injuries were minor. Nevertheless, in a claim based on use of excessive force, photographs of the condition of claimant's body immediately after that alleged force was applied is inescapably relevant, whatever they may or may not show. If defendant is unable to access the computer disk on which the original photographs are stored, then high-quality, color photocopies of the pictures in defendant's possession may be substituted. The photographs, however, should be supplied to claimant at this time.

Finally, claimant objected to defendant's refusal to provide copies of the employee records of Correction Officer D. Dewey, but after defense counsel informed claimant that such information is protected by Civil Rights Law §50-a, he has converted his objection into a request that these documents be submitted to the Court for an in camera review (Parker affidavit, ¶25).

In order to obtain access to personnel records of those public employees protected by Civil Rights Law §50-a,[3] the party seeking access must make a "clear showing of facts" indicating that the records would be relevant and material to them, giving all interested parties an opportunity to be heard on the request. If, following the hearing, the Court concludes that there is a "sufficient basis" for ordering the records produced, the records are sealed and delivered to the Court for an in camera inspection. Only those parts of the records that the Court determines to be relevant and material are released to claimant.

As a practical matter, this process contemplates four distinct steps: 1) the Court determines whether there is a sufficient showing of facts to warrant giving notice to all interested parties and holding (or offering to hold)[4] a hearing; 2) if so, a hearing is conducted at which all interested parties are permitted to present their arguments for or against disclosure; 3) if convinced that there is sufficient basis for ordering release of the records, the Court then directs that they be sealed and sent for in camera inspection; and 4) the Court reviews the records and releases only those parts that are deemed relevant and material to the matter at hand.

Where it would be so clear that the records sought would not be material and relevant, it is permissible for the Court to deny the request without a hearing (People v Diaz, 223 AD2d 469 [1st Dept 1996], appeal denied 87 NY2d 1019). "The Court may deny such review without a hearing where the moving party fails to set forth some good faith factual predicate for the request" (Tyree v State of New York, #2000-013-003, Claim No. 101474, Motion No. M-61097, April 30, 2000, Patti, J.). Reflecting the central purpose of the statute, it must be evident that the records relate to the merits of the action "and are not sought merely to conduct ‘a fishing expedition to gain information to impeach a witness's general credibility'" (Flores v City of New York, 207 AD2d 302, 303 [1st Dept 1994], quoting People v Valentine, 160 AD2d 325, 326 [1st Dept 1990], lv denied 76 NY2d 797).

On the other hand, the initial burden "must be viewed liberally because, in the usual case, a party seeking discovery will, of course, not know precisely what pertinent information is within a personnel record" (Cox v New York City Housing Auth, 105 AD2d 663, 664 [1st Dept 1984]). There should, at a minimum, be some indication of information that could reasonably be uncovered in the records that would be useful in the underlying matter (People v Harris, 121 AD2d 788, 789 [3d Dept 1986]).

Here, claimant has set forth the following in an effort to establish a "good faith factual predicate" for his request:
Claimant herein respectfully submits that evidence of prior incidents involving Officer D. Dewey, similar in nature to the incident which underlies the instant claim, bear directly upon the issue of notice regarding Dewey's predisposition for abusing his authority, for abusing inmates in his charge, for discriminating against racial minorities, and his need for further training in inappropriate use of force. Such prior notice would make defendant directly liable to claimant for deliberately, or indifferently, failing to prevent [the] incident giving rise to the instant claim.
(Parker affidavit, ¶26.)

The question that must be decided is whether this type of information could potentially be relevant and material to claimant's only remaining cause of action, in which he alleges:
Defendant's use of force was in violation of Correction Law 137[5] "No inmate in the care and custody of the department shall be subjected to degrading treatment, and no officer or other employee of the department shall inflict any blows whatsoever upon any inmate. . ."[5]

The defendant's agent, official, staff and/or employees assaulted claimant by grabbing him around his neck, and slapping him in the face. Claimant seeks compensatorial [sic] damages. The officer's actions were objectively unreasonable although claimant's injuries were de minimis and claimant should be entitled to damages for his injuries even though they were minor.
(Claim, ¶¶ 4, 5.)

Officer Dewey's awareness, or notice, of his own previous behavior simply is not relevant to the actions that he took with respect to claimant. If claimant had alleged the Department of Correctional Services (DOCS) was responsible for his injuries because of its negligence in retaining and/or failing to retrain Correction Officer Dewey, then the type of information listed by claimant would be important in helping him prove his case. The only possibly relevant factual allegations in this claim, however, are that Correction Officer Dewey, as an employee of DOCS, treated claimant in a degrading manner and used excessive force on him. Thus the use to which the type of information listed by claimant could be put is, to state it baldly, to attempt to convince the trier of fact that Officer Dewey probably assaulted claimant because he had assaulted other inmates in the past.

"A general rule of evidence, applicable in both civil and criminal cases, is that it is improper to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion (Matter of Brandon's Estate, 55 NY2d 206, 210-211 [1982]; Prince-Richardson, Evidence [11th edition], §4-517). Exceptions have been recognized where such information would be relevant to 1) motive; 2) intent; 3) the absence of mistake or accident; 4) a common scheme or plan; or 5) identity (id at 211, citing to People v Molineux, 168 NY 264 [1901]; see also, People v Sandoval, 34 NY2d 371 [1974]), as long as the prejudicial effect does not outweigh the probative value (People v Ventimiglia, 52 NY2d 350 [1981]). In civil practice, evidence of a witness' conviction of a crime may be introduced "for the purpose of affecting the weight of his testimony" (CPLR 4513), but that must be evidence of a formal conviction of a felony or misdemeanor, not any lesser offense, result of disciplinary proceeding or accusation that was not fully adjudicated (Roe v Doe, 160 Misc 2d 1074 [Sup Ct 1994]).

The only purpose for which claimant could be seeking information from Correction Officer Dewey's personnel records, therefore, is not a purpose permitted under the law. That being the case, a hearing is unnecessary, because the request would be denied in any event.

Claimant's motion is granted to the extent that defendant is directed to produce either the actual photographs or high quality color copies of the photographs that were taken on the day of the incident and otherwise denied. Defendant's motion is granted to the extent that the second and third causes of action are dismissed and otherwise denied.

August 20, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on claimant's motion to strike the answer for failure to disclose documents for discovery and inspection and on defendant's cross motion for partial summary judgment.
1. Notice of Motion and Supporting Affidavit of Anthony Parker, pro se, with annexed Exhibits

2. Notice of Cross Motion and Supporting Affirmation of Belinda A. Wagner, Esq., AAG, with annexed Exhibits

Filed papers: Claim; Answer

[1] "No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state." (NY Const, art I, §11.)

[2] "The [second sentence] prohibits
discrimination. It is implicit in the language of the provision, and clear from a reading of the constitutional debates, that this part of the section was not intended to create a duty without enabling legislation but only to state a general principle recognizing other provisions in the Constitution, the existing Civil Rights Law or statutes to be later enacted (
Dorsey v Stuyvesant Town Corp
., supra,
at 531; 2 Rev Record of NY Constitutional Convention, 1938, at 1069, 1144; id., vol 4,
at 2626-2627). The Legislature subsequently implemented those guarantees by provisions of various statutes which regulate the conduct of both State officers and private individuals (
see, e.g.,
Executive Law § 290 et. seq. [Human Rights Law]; Civil Rights Law § 40 et seq.; Labor Law § 220- e)" (Brown v State of New York, 89 NY2d at 190, supra).
[3] The statute expressly includes police officers; firefighter/paramedics; employees of a Sheriff's Department, a Department of Correction, or a Fire Department; and peace officers under the control of the Division of Parole.
[4] If neither the party opposing disclosure nor the officer whose records are being sought requests a hearing, they waive their rights to such a proceeding (Green v New York City Housing Auth, 186 AD2d 455 [1st Dept 1992]).
[5] Claimant's version of the statute is cut somewhat short. Subdivision (5) reads in full (emphasis supplied): "No inmate in the care or custody of the department shall be subjected to degrading treatment, and no officer or other employee of the department shall inflict any blows whatever upon any inmate, unless in self defense, or to suppress a revolt or insurrection. When any inmate, or group of inmates, shall offer violence to any person, or do or attempt to do any injury to property, or attempt to escape, or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline, to secure the persons of the offenders and to prevent any such attempt or escape."