BROWN v. THE STATE OF NEW YORK, #2004-009-76, Claim No. 103284, Motion No.
Claimant's motion seeking the issuance of certain trial subpoenas was granted in
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
NICHOLAS V. MIDEY JR.
ANTONIO BROWN, Pro Se
HON. ELIOT SPITZER
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
December 1, 2004
See also (multicaptioned
Claimant, an inmate proceeding pro se, has brought this motion seeking
the issuance of several subpoenas.
The following papers were considered by the Court in connection with this
Five Proposed Subpoenas (each titled "Judicial Subpoena Duces
, with separate supporting affidavit
for each 1-10
Affirmation in Opposition, with Exhibits 11
"Response to Defendant's Opposition to Subpoena Motion" 12
This claim was previously scheduled for trial at a pro se trial term
held by this Court at Marcy Correctional Facility on August 12, 2004. Prior to
trial, claimant instituted this motion in which he requested the Court to issue
subpoenas to compel the production of certain witnesses and documents at this
trial. After he received notification of the trial date, claimant attempted to
bring this matter before the Court prior to trial, but the earliest return date
for this motion was this Court's August 18, 2004 motion calendar, a date
obviously subsequent to the original trial date.
As a result, on the scheduled date of trial (August 12, 2004), claimant
requested an adjournment of his trial pending the Court's determination on his
pending motion. This Court granted his request and adjourned the trial without
date, and also, at defendant's request, adjourned this motion to the Court's
October 20, 2004 motion calendar.
In his claim, claimant seeks to recover damages for personal injuries sustained
by him in an alleged assault against him by several correction officers at
Oneida Correctional Facility on August 28, 2000. At the time, claimant was
housed in the Special Housing Unit (SHU) of the facility. Claimant alleges that
he was unjustifiably and forcibly removed from his cell by correction officers
at approximately 8:00 a.m. on that date. Claimant contends that the State
has attempted to justify this removal by connecting it to a prior separate
incident involving claimant and another correction officer which allegedly
occurred at approximately 7:10 a.m. on the same morning. It is apparently
claimant's position that the State was not justified in removing claimant from
his cell, since it is his contention that no such incident ever occurred, and
that the sole purpose of the correction officers in removing claimant from his
cell was to perpetrate the assault against him.
The Court will separately consider each of the five subpoenas requested by
1. Subpoena for Sgt. Barnes, Correction Officer Engelbrecht, Correction
Officer Clark, and Grievance Supervisor Bennett
Claimant, in one subpoena, has requested the appearance at trial of Sgt.
Michael Barnes, Correction Officer Donald Engelbrecht, and Correction Officer
Timothy Clark. Defendant acknowledges that all of these individuals were on
duty at the time of the alleged incident, but opposes the issuance of this
subpoena, contending that none of these individuals have any relevant
information with regard to the incident upon which this claim is based.
Each of these officers has previously responded to interrogatories from the
claimant, and each responded that they were not involved in the altercation, nor
were they present at the time the alleged incident occurred.
In his response (see Item 12), claimant contends that Correction Officer Clark
was the only officer on duty in the housing unit at approximately 7:10 a.m.,
when the underlying incident between Correction Officer LaBella and claimant
supposedly occurred. Claimant seeks the testimony of Correction Officer Clark
in an attempt to establish that Correction Officer LaBella was not on duty, and
therefore could not have been involved in any incident with claimant, prior to
the 8:00 a.m. altercation.
Claimant also contends that Sgt. Barnes was the area supervisor on duty when
the alleged incident with Correction Officer LaBella occurred, and will be able
to therefore provide testimony as to which officer or officers were actually on
duty at this time.
Claimant further contends that Correction Officer Engelbrecht was the unit
officer on duty at approximately 8:00 a.m. when claimant was forcibly removed
from his cell.
Each of these officers, therefore, while not being eyewitnesses to the
altercation involving claimant, were apparently on duty in the area where the
incident occurred, and may be able to provide relevant testimony as to what
actually transpired. It is anticipated that any such testimony would be limited
Since these officers are presumably under the direct control of the defendant,
defendant is hereby directed to make these three officers available to give
testimony at the trial without the necessity of a subpoena. Once a trial date
is established, defendant's attorney is directed to notify these Chambers if any
of these officers are unwilling to testify without a subpoena, since a court
ordered subpoena will then be issued to compel their appearance.
In the same subpoena, claimant has also requested the personal appearance of
Grievance Supervisor Bennett, presumably to provide information obtained during
interviews conducted by her with the correction officers involved in the
incident. Additionally, claimant states that he needs Ms. Bennett to
testify in order to provide a proper foundation for a document generated by the
Grievance Department that he wishes to introduce at trial.
Claimant has not demonstrated that Ms. Bennett would be able to provide any
relevant or admissible testimony pertaining to the incident of August 28, 2000.
Furthermore, assuming that defendant is willing and able to produce the document
referred to by claimant, and does not raise any objections to its admission into
evidence, foundation testimony from Ms. Bennett would not be required.
Otherwise, defendant is directed to make Ms. Bennett available for trial for the
limited purpose of providing foundation testimony pertaining to the
admissibility of the grievance report and decision.
Based on the foregoing, the proposed subpoena directed to these four
individuals will not be signed.
2. William Robinson, Nurse Administrator, Auburn Correctional
In this subpoena, claimant seeks the production of his medical records
maintained by the Department of Correctional Services, specifically pertaining
to the examination conducted by medical personnel following the altercation on
August 28, 2000 at Oneida Correctional Facility. Defendant has raised no
objection to the issuance of this subpoena.
Presumably, this subpoena is needed in order for claimant to obtain certified
copies of his own medical records, in admissible form, in order to establish the
nature and extent of the injuries suffered by him in this incident.
As a rule, this Court does not normally bifurcate its prisoner pro se
trials held at correctional facilities. In this particular matter, however,
claimant not only has requested this subpoena but has also submitted several
subpoenas on matters pertaining solely to the issue of damages. Additionally,
in certain of these subpoenas claimant has also requested the personal
attendance at trial of his treating medical providers, whose testimony would
also be limited solely to the issue of damages. Therefore, in order to ease
the financial burden on claimant, as well as to defer any production of records
or testimony from medical providers, this Court has determined that a bifurcated
trial would be appropriate. Therefore, when this trial is rescheduled, the
Court will only hear testimony pertaining to the issue of liability. Should
claimant ultimately prevail on the issue of liability, thereby requiring a
subsequent trial limited to the issue of damages, claimant may at that time
renew his request for this subpoena.
3. Subpoenas directed to Krishna Vadlamudi, M.D. and to Stephen E. Joy,
Claimant has submitted separate subpoenas to secure medical records and
testimony from Krishna Vadlamudi, M.D. and Stephen E. Joy, M.D. Dr. Vadlamudi
was the physician who treated claimant for a neck injury supposedly suffered in
the altercation on August 28, 2000. Dr. Joy apparently was a physician at
University Hospital, Syracuse, New York, who subsequently treated claimant for
this neck injury. In both of these subpoenas, claimant seeks medical records
pertaining to his treatment, as well as personal testimony from each physician
as to the treatment rendered to claimant.
There is no question that the testimony of both Dr. Vadlamudi and Dr. Joy,
together with their respective medical records, is relevant only to the issue of
damages. Since this Court has previously determined herein that this trial will
be bifurcated, these subpoenas will also be held in abeyance pending a decision
on liability. If claimant is successful at the liability phase, he may then
resubmit these subpoenas for judicial approval.
The Court notes, however, that claimant has indicated on both of these
subpoenas that he also intends to call both Dr. Vadlamudi and Dr. Joy as expert
witnesses. If claimant is seeking opinion testimony from these physicians as to
whether the medical treatment provided claimant was appropriate and reasonable,
a subpoena compelling such testimony is not proper. It is not disputed that
both of these physicians treated claimant for his injuries, and therefore their
presence at a subsequent trial on damages may be appropriate to secure
their testimony as to the extent of, and their treatment for, claimant's
injuries. However, although these witnesses can be subpoenaed to testify as to
facts within their knowledge and to their physical observations, they cannot be
compelled to give testimony as to matters requiring the use of their expertise,
education, judgment, or opinion in their particular field of expertise (58 NY
Jur 2d, Evidence & Witnesses, § 754). Should claimant intend to elicit
expert opinions at trial from either of these physicians, claimant must
therefore make arrangements with such witness prior to trial, including the
negotiation of any expert witness fee. Otherwise, if their personal appearance
at trial is required, any such testimony will be limited to matters involved in
their medical treatment of claimant.
4. Subpoena directed to Superintendent Susan O'Connell, Superintendent of
Oneida Correctional Facility
In this subpoena, claimant has requested from Superintendent O'Connell an
extensive list of documents and reports. The Court will consider each request
made in the proposed subpoena.
A. Written Reports from Correction Officers
Claimant has requested all reports written by Correction Officer Mullen,
Correction Officer LaBella, Correction Officer Hampshire, and Correction Sgt.
Jordan with regard to the incident involving claimant on August 28, 2000. In
his response papers to this motion, defendant's attorney has attached various
memoranda and reports authored by these officers and has agreed to stipulate
such documents into evidence at the trial of this claim.
Claimant's need for a subpoena for such documents has therefore been rendered
B. On-Duty Time Sheets, Time Punch Cards, and any information for Correction
Officer LaBella and Correction Sgt. Jordan
Claimant has requested the above documents, apparently to support his
allegations that these officers were not on duty at the time of the original
incident of 7:10 a.m. Although the Court is unsure of the potential relevance
of such a contention to the issue of whether unreasonable force was used against
claimant in the subsequent incident of 8:00 a.m., the Court does not believe
that the production of such information is unduly burdensome upon defendant.
Documentation establishing the hours worked by Correction Officer LaBella and
Correction Sgt. Jordan for August 28, 2000 should therefore be produced. If
defendant submits on duty time sheets or time punch cards, any personal
information (such as social security number, residential address, etc.) should
be redacted. Defendant is further advised that compliance may be satisfied by
the production of an affidavit from a knowledgeable person at the facility,
attesting to the specific hours worked by these individuals on the day in
Furthermore, if defendant is unwilling to provide such documentation based on
this order, the Court will issue a subpoena to compel such production once a
date has been established for the trial of the liability portion of this claim.
C. Directive 4004 (Unusual Incident Report), Directive 4091 (Log Books),
Directive 4944 (Use of Physical Force), Directive 4910 (Control and Search for
Contraband), Directive 4932 (Chapter 5), and Use of Physical Force, § 8.2
of the Department of Corrections Employees' Manual
In a prior motion, claimant had previously requested discovery of directives
4004, 4091, and 4944. This request was considered but denied by my esteemed
colleague, Hon. Francis T. Collins, in a decision and order dated November 5,
In that decision and order, Judge Collins determined that "[t]he directives at
issue in this action concerning log books, unusual incident reports and use of
physical force clearly fall within the Commissioner's powers and duties related
to the management of correctional facilities" and that the Commissioner had the
right "to restrict access to such directives by designating which directives
may be available to inmates and which shall not." (See Decision and Order to
Motion No. M-63858, pg. 4). Judge Collins determined that such directives were
not discoverable and such decision remains the law of the case and a subpoena
for these directives will therefore not be issued by this Court.
On the same basis, this Court finds that the portion of the Department of
Corrections Employee's Manual, Use of Physical Force § 8.2, is similar to
Directive 4944, and is therefore immune from disclosure and need not be produced
In his response papers, defendant's attorney acknowledges that Directives 4910
and 4932 are not subject to these restrictions by the Commissioner. However,
the Court fails to find any relevance in either directive to the issues raised
in this claim, and they need not be produced. A subpoena will not be issued by
this Court directing such production.
D. Written statements made to the Grievance Program in response to
In his prior Decision and Order, Judge Collins ordered that all written reports
to then Superintendent Hollins related to the use of force incident dated August
28, 2000 should be produced by defendant. This Court finds that such order
applies to any and all written statements made by the officers to the Grievance
Program pertaining to this incident, and they should be produced as well. To
the extent that such statements have not yet been produced, copies should be
forwarded to claimant within 30 days from the date of filing of this decision
and order. Once a trial date is established, if claimant has not received such
statements, this Court will issue a subpoena directing the production of same.
Based on the foregoing, therefore, it is
ORDERED, that Motion No. M-68900 is hereby GRANTED, in part, and DENIED, in
part, in accordance with the foregoing; and it is further
ORDERED, that the trial of this claim shall be bifurcated, and the claim will
be scheduled for trial (as to liability only) at this Court's next scheduled
prisoner pro se trial term to be conducted at Marcy Correctional
Facility. The parties will be notified by letter from the Court of the
scheduled trial date. At that time, if necessary, claimant may submit those
trial subpoenas to this Court for issuance as authorized herein. Claimant is
reminded that he remains responsible for the appropriate and timely service of
any such subpoenas issued by this Court. The Court, however, does direct that
service of any such subpoenas may be made by certified mail, return receipt
requested; and it is further
ORDERED, that defendant is directed to have Correction Officer Donald
Engelbrecht, Correction Officer Timothy Clark, and Sgt. Michael Barnes available
to give testimony at the liability trial of this matter, to be conducted at a
future date at Marcy Correctional Facility.
Syracuse, New York
HON. NICHOLAS V. MIDEY JR.
Judge of the
Court of Claims
Although each subpoena was captioned by
claimant as a "Judicial Subpoena Duces Tecum", it is apparent from the Court's
examination of these subpoenas that certain of these subpoenas request the
personal appearance of the subpoenaed witness for testimony at trial, while
others are limited to the production of records.