On December 15, 2004, the following papers were read on motion by Claimant for
an order to compel, for an order of preclusion and for poor person status and on
cross-motion by Defendant for a protective order:
Notice of Motion with Affidavits and Exhibits Annexed, and Memorandum of
Defendant's Notice of Cross-Motion, Affirmation, Affidavits and Exhibits
Claimant's Reply and Answering Affidavit with Exhibit Annexed and Reply
Memorandum of Law
Defendant's Reply Affirmation and Exhibit Annexed
Letter from Monroe County Department of Law dated November 29, 2004
Filed Papers: Claim; Answer
Upon the foregoing papers, this motion and cross-motion are granted in part and
denied in part.
Claimant served his third supplemental discovery demand (Exhibit A to the
moving papers) on May 4, 2004, to which the Defendant responded on May 28, 2004
( Exhibit B to the moving papers). There are several demands for which disputes
remain, despite the best attempts by the parties to resolve the same.
Accordingly, Claimant has made a motion (No. M-69369), inter alia, to
compel production of the disputed, and purportedly discoverable, material, and
the Defendant has made a cross-motion (No. CM-69448) for a protective order. As
part of his motion, Claimant also seeks a conditional order of preclusion,
seeking to strike the answer and preclude Defendant from offering any proof with
respect to negligence, as well as seeking poor person status, and directing the
Defendant's Department of Correctional Services (DOCS) to produce him at the
trial of this matter. As the trial of this matter looms near, the parties have
sought judicial intervention.
I find that the parties have made good faith efforts to resolve the discovery
disputes, and that the underlying motion practice is necessary to resolve the
issues. Accordingly, I will address first the discovery issues, and then the
poor person application.
The matters in dispute, as contained in the third supplemental discovery demand
(Exhibit A), include demands for:
I will address each demand seriatim, and briefly summarize as
appropriate the positions of the parties. Demand "1" seeks the staffing plans
for "D" Yard at Attica on the date in question, to wit, June 14, 1996.
Defendant has responded, upon information and belief, that such records are
retained for only five years, and eight years have elapsed. Claimant has
elaborated, seeking such demurral on personal knowledge, rather than on
information and belief, as well as seeking budget records showing funds
allocated to posts for yard safety during the year in question.
In its cross-motion, the State references a prior order in this claim, from
now-retired Judge Donald J. Corbett, Jr., wherein he denied a request to direct
the release of staffing information for Cell Blocks A, B, C, and D (Exhibit A to
the cross-motion, M-59067, filed May 19, 1999). Defendant urges that since no
prior appeal was taken, that order remains law of the case. Claimant
distinguishes the prior demand, noting that now he only seeks information
relative to D Block Yard, not the cell blocks themselves. Since the demands
seek information about different locations, I find that law of the case does
not apply here.
Moreover, Defendant supplies the affidavit of Superintendent James Conway at
Attica, who, in addition to opining that release of such information could
jeopardize the security and safety and the persons therein, avers that facility
staffing charts generated in 1996 were routinely purged after retention at the
facility for five years. While he acknowledges that a Facility Plot Plan
containing general staffing requirements as they may have existed in March 1996
are likely maintained in Albany, they would not be specific as to the date in
question. Regardless, I am persuaded that the requested documents no longer
exist, and that part of Claimant's motion to compel is denied.
With respect to demands "2" and "7" regarding walk through metal detectors,
Superintendent Conway avers that there were no such devices located in proximity
to "D" Yard, and thus no records or reports of defects relative thereto, and
that there were no maintenance, log records or reports of defects kept for
hand-held metal detectors, which were used on a random basis, and thus no
reports thereof . Accordingly, that part of Claimant's motion to compel is
As to demand "3" regarding any institutional policies or procedures relative to
inspections and searches of "D" Yard, Superintendent Conway avers that there
were no such policies specific to Attica, and makes reference to DOCS Directive
4910. While that reference to a directive in effect at the time of this
incident purportedly addressed "Control of & Search for Contraband" with
only general statements relative to "Searches of Facility Spaces," it is not
clear to me that the general objections raised by the Defendant, and
specifically Superintendent Conway, pertaining to security concerns involve the
release of this directive. Accordingly, since it appears to only address
generalized topics, I will direct the Defendant to release Directive 4910 to
Claimant's counsel within ten days of service of a file-stamped copy of this
decision and order, provided however that if Defendant raises security concerns
relative to this directive, then I will review the same in camera. If
so, Defendant then shall provide an original and one copy of said directive,
along with its written objections to the release thereof, to the Court within
the same ten-day period.
In demand "4," Claimant seeks the blueprints of the location of the incident,
while Defendant has suggested that Claimant instead visit the facility to view
the area in question. While conditionally accepting that offer, Claimant demurs
, not knowing whether it is "structured the same as it was on the date of the
incident" over eight years ago. Thus, argues Claimant, the offer does not
adequately comply with the demand. Once again, Superintendent Conway has
averred under oath, on personal knowledge, that the configuration of "D" Yard
is presently substantially similar to how it appeared in 1996. Coupled with the
security concerns raised by Superintendent Conway, I deny Claimant's motion to
compel with respect to the "D" Yard blueprints.
Demand "5," seeking the officers' postings in "D" Yard at the time of the
assault, falls under the same penumbra of security concerns discussed above.
The motion to compel as to this demand is similarly denied.
Finally, demand "6" seeks 1995 and 1996 annual violence reports at Attica.
James A. Lyons, a Program Research Specialist III in the central offices of
DOCS, avers that the annual Unusual Incident Reports, which he says is the only
source or compilation that would encompass assaults on inmates or staff in those
years, does not detail specific incidents by location within given facilities
(i.e., not "D" Yard, but Attica as a whole). Similarly, he avers that
the annual report refers to the number of weapons found statewide, but does not
break them down by facility. In sum he avers, and, without any factual
contradiction before me, there are no DOCS' generated annual reports from
Attica. Of course, I am not so naive as not to realize that Attica officials
had to supply DOCS central with the reports of assaults on inmates or staff, as
well as those unusual incident reports which involve the use of weapons, to wit,
how else would DOCS central be able to compile its annual totals. However,
since this demand seeks details relative to incidents occurring in "D" Yard, and
since the annual compilations, as described by Lyons, do not incorporate the
details sought, this part of Claimant's motion is similarly denied.
While I have denied most of the relief sought by Claimant, I am not ignorant of
the conundrum in which he is placed. The issues at bar certainly raise
questions which require a balance between the ability of this or any similarly
situated claimant to obtain sufficient discovery to obtain expert opinions
supporting his claim, contrasted with the duty of the Defendant to provide for
the safety and security of inmates, staff and visitors in its correctional
facilities. Claimant demurs from these concerns, suggesting that such staffing
reports be made available only to its expert on penology and security,
presumably so that such expert would be able to express an opinion supporting
what appears to be a theory by Claimant that there was inadequate or
insufficient staffing, and thus negligence by the Defendant. The Claimant
suggests that an order be fashioned whereby the material sought would be
disclosed only to counsel, without redisclosure of the sought-after information
to anyone but his expert.
But therein lies the problem. Assuming arguendo
, that the expert were
to opine an inadequacy, insufficiency or other negligence by the Defendant in
its staffing at Attica in the yard on the day in question, then the foundation
of such opinion would of necessity require an on-the-record recitation of some
of the very materials that Claimant would have me order no redisclosure. And
without a proper foundation laid to support a presumably claimant-friendly
opinion, such opinion would likely be of questionable benefit to me, let alone
be admissible. A classic "Catch-22."
At the end of the day however, I defer to what I believe are credible
assertions of the risk to inmates, staff and civilians, were I to release the
sought after information. "The number of corrections officers who should be
present in various areas of a correctional institution ... essentially involves
the experience and discretion of the Department of Corrections. Indeed,
deference to the judgment of correctional facility authorities must be the rule,
and a court cannot properly substitute its judgment for that of such
authorities" (Papadopoulous v State of New York
, Ct Cl, UID No.
2001-031-004 [Claim No. 103653 - Motion No. M-64137], Dec. 18, 2001, Minarik,
quoting Tucker v State of New York
Ct Cl, Aug. 28, 1996, Claim No. 85578, Bell, J.). To that extent, and on the
bases specified above, I deny those parts of Claimant's motion to compel and
grant those parts of Defendant's cross-motion for a protective order.
With respect to the relief sought pursuant to CPLR article 11, I note that the
County of Monroe was served with the motion papers, and in fact has replied,
noting in effect that the application does not seek to have the County of Monroe
pay for any costs relating to the transport of Claimant to the Court, relief
that it argues in any event is not required by CPLR 1101 (sic, probably means
CPLR 1102). The County of Monroe does observe that Claimant's affidavit in
support of his motion for poor person status "indicates that the applicant
currently satisfies the financial requirements of CPLR §1101 to proceed as
a poor person."
The Defendant's opposition suggests that the relief of poor person status is
neither statutorily nor constitutionally required. However, I believe that it
is the relief of the appointment of counsel, not poor person status, which is
neither statutorily nor constitutionally required. Notably, Wills v City of
Troy (258 AD2d 849), relied upon by Defendant, addresses only the right to
the appointment of counsel, and there the Third Department affirmed a trial
court which had granted poor person status, but declined to assign counsel.
Matter of Smiley (36 NY2d 433) and Ferguson v State of New York
(Ct Cl, Claim No. 109479 - Motion No. M-68699, Dec. 3, 2004, Hudson J.), really
address the factors to be considered in determining whether the appointment of
counsel is appropriate, to wit, when the applicant is faced with a "loss of
liberty or grievous forfeiture" (Matter of Smiley, supra at
437). In Wilson v State of New York (101 Misc 2d 924), also cited in
support by Defendant that Claimant's motion to prosecute the action as a poor
person was granted, albeit with the motion being denied in all other respects.
There is no dispute before me, as acknowledged by the County of Monroe relying
upon the undisputed factual assertions of the Claimant, that he satisfies the
financial requirements of CPLR 1101 to proceed as a poor
The Defendant does not dispute
Claimant's entitlement to the status of a poor person on the basis that he
satisfies the financial requirements.
There is nothing before me which would warrant a denial of poor person status.
Accordingly, that portion of Claimant's motion is granted. Having done so,
Claimant now requests that I apply the literal intent and clearly articulated
purpose of Civil Rights Law §79 (3)(b) and §79-a (3)(b), which are
essentially identical, and read:
(b) Where the inmate is permitted in accordance with any other law to proceed
with the action or proceeding as a poor person the expense of transporting the
inmate to, or lodging or guarding him at any place other than in a state
correctional institution or any other expense relating thereto shall be a state
charge; provided, however, that where an inmate has been granted such permission
and a recovery by judgment or by settlement is had in his favor, the court may
direct him to pay out of the recovery all or part of any sum expended by the
The Fourth Department has recently reiterated the trial court's duty to apply
the "unambiguous language of the statute" (Roberts v State of New York,
11 AD3d 1000, 1001) in considering legislative intent, albeit in another
context. If a claimant qualifies as a poor person, the Civil Rights Law does
not "provide for the recovery of any expenses advanced by DOCS other than the
costs associated with transporting claimant himself" ( Price v State of New
York, Ct Cl, UID No. 2004-032-030 [Claim No. 108186 - Motion Nos. M-67925,
M-67926, M-67927, M-67928], May 12 , 2004, Hard, J.). Here, the Claimant's
application seeks relief precisely as contemplated by the Civil Rights Law, and
as such, I feel compelled to grant that part of his motion.
Accordingly, I grant that part of Claimant's motion granting him poor person
status, and will sign a properly denominated "body order and subpoena" directing
the Defendant to produce Claimant at the trial hereof on March 14, 2005.
Therefore, consistent with the statute, the reasonable expenses of transporting
Claimant to the Court of Claims in Rochester, or lodging or guarding him, shall
be a state charge, unless there is a recovery or settlement of this claim in his
favor, at which time I "may direct him to pay out of the recovery all or part of
any sum expended by the state."
In sum, the motion and cross-motion are granted in part and denied in