New York State Court of Claims

New York State Court of Claims

DREW v. THE STATE OF NEW YORK, #2005-013-008, Claim No. 107733, Motion Nos. M-68268, CM-68409


Synopsis


Claimant's motion for an order compelling discovery, and Defendant's motion to stay all proceedings or for an order of protection are granted in part and denied in part.

Case Information

UID:
2005-013-008
Claimant(s):
ROBERT DREW
Claimant short name:
DREW
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107733
Motion number(s):
M-68268
Cross-motion number(s):
CM-68409
Judge:
PHILIP J. PATTI
Claimant's attorney:
ROBERT DREW, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 22, 2005
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


On December 15, 2004, the following papers were read on motion by Claimant for an order compelling discovery, and on cross-motion by Defendant for a stay of all proceedings or for an order of protection:

Notice of Motion (M-68268), Affidavit and Exhibits Annexed


Notice of Cross-Motion (CM-68409), Affirmation and Exhibit Annexed


Claimant's "Answer and Reply" Affidavit


Correspondence from Claimant dated September 1, 2004 and October 18, 2004


Correspondence from Defendant dated November 5, 2004 and November 15, 2004


Correspondence from Claimant dated November 9, 2004


Filed Papers: Claim; Answer; Decision and Order in Motion Nos. M-66890, M-67487 and M-67820 dated February 26, 2004

There are two motions before me. In Motion No. M-68268, Claimant seeks an order compelling responses to certain of his demands and interrogatories, and for sanctions. In Cross-Motion No. CM-68409, the Defendant seeks an order of protection. After Claimant withdrew his appeal of an earlier decision and order which I rendered on three previous motions on February 26, 2004, I wrote to the parties and adjourned the instant motions to clarify the outstanding issues. The parties have duly complied with my directives, and I will now address the outstanding discovery demands and protections requested.

In discovery demand No. 2, Claimant seeks photographs and a description of evidence in the New York State Police report regarding Claimant and the incident of July 15, 2002. Defendant observes that no pictures or evidence were noted in said police report. Claimant then suggests that a memo attached as Exhibit B-1 to his motion, a memo to him from Captain Chappius of the Orleans Correctional Facility (Orleans), refutes the same. However, that memo does not refer to the New York State Police report (Exhibit A to the State's response to Claimant's demand), which upon review notes no significant physical evidence. As to this item, Claimant's motion to compel is denied, and the State's motion for an order of protection is granted. The same report, however, does indicate that photographs were taken by the Orleans Correctional Facility, albeit not by the State Police, but it does not reflect that such photographs were seized by the State Police which the demand seeks. Accordingly, as to said photographs, Claimant's motion to compel is denied, and the State's motion for an order of protection is granted. Of course, if the Department of Correctional Services (DOCS) has retained such photographs, as opposed to the State Police, it would seem, absent security or privilege concerns, that Claimant has an entitlement to copies of the same.

Discovery demand No. 3 seeks production of all documents and reports prepared by DOCS regarding the incident in question which Claimant has not otherwise specified in his demands. The Defendant cites its general objections as enumerated in its response to Claimant's notice.[1] I find that general objection D, contending that the request is overly broad, unspecific, vague, and burdensome, suffices. The demand is overly broad. As to this item, Claimant's motion to compel is denied, and the State's motion for an order of protection is granted.

Discovery demand No. 7 seeks any and all reports of findings by DOCS relating to Claimant and inmate Paul Bell and the incident of July 15, 2002. Defendant initially declined to respond based upon its general objections. More specifically, the State avers that the demand contains the incorrect premise that inmate Bell was the perpetrator, and that since Claimant failed to identify anyone as the assailant, no such hearing to determine who perpetrated the assault upon Claimant with respect to inmate Bell was conducted.[2] As to the hearing to place Claimant in involuntary protective custody, the Defendant has provided such records to Claimant. With respect to this item, Claimant's motion to compel is denied, and the State's motion for an order of protection is granted.

Discovery Demand No. 11 seeks the disciplinary hearing tape of inmate Paul Bell relating to the July 15, 2002 incident, to which the Defendant initially objected based upon its general objections. The Defendant also asserts that it is appropriate to deny access to other inmates' records, or to identify other inmates who might be involved as witnesses, for enumerated reasons, and cites the public interest privilege referenced in Cirale v 80 Pine St. Corp. (35 NY2d 113). Claimant argues that a third inmate provided a statement or testimony which he speculates "may show there was some animosity between inmates Bell and Crawford and the Claimant."

These arguments lose track of the allegations of the claim before me which assert negligence (1) when Correction Officer (CO) Seelbinder provided inadequate supervision while sleeping on duty (Claim, ¶5 and ¶6), and (2) relating to the purported foreseeability of the assault due to inmate Bell's "attitude [that] had been deteriorating ... [and he] had been becoming increasingly disruptive and had been warned repeatedly about his aggressiveness" (Claim ¶7). There are no allegations in the claim with respect to inmate Crawford having any animosity toward Claimant, nor any allegations that inmate Crawford had a disciplinary history demonstrating a propensity for violence. Accordingly, the request for said hearing tape is denied as being totally speculative, seeking discovery with respect to issues or theories of liability that are not alleged in the claim.

Claimant also acknowledges that the information and hearing tape "do not pertain to [Bell's] prior history" but that the hearing officer "would have had to take into consideration [Bell's] prior disciplinary history." Even if that were true, the hearing officer, in reaching his written determination, shall articulate "the reasons for any penalties imposed and, if applicable, pursuant to section 254.6(b) of this Part, reflect how the inmate's mental condition or intellectual capacity was considered" (7 NYCRR 254.7[a][5]). Such determination would not be found on the hearing tape, but possibly in a written determination, which is not sought here. Accordingly, as to the said hearing tape, Claimant's motion to compel is denied, and the State's motion for an order of protection is granted.

In discovery demand No. 12, Claimant seeks a list of witnesses who testified at inmate Bell's disciplinary hearing related to the incident of July 15, 2002. Claimant desires such list because he believes that "at least 4 other inmates testified" that Officer Seelbinder was sleeping and thus is material to his claim. Claimant does not provide any support or basis for his conclusory assertion as to what these inmate witnesses supposedly testified. If he "knows" the substance of the testimony of one or more witnesses at such hearing, then he already knows the identity of one or more of such witnesses or already has an independent source of such information. Thus providing the list of witnesses, besides potentially creating a safety and security issue with respect to those inmates, could possibly compromise confidentiality agreements with such inmates and possibly lead to reprisals. Claimant will have to seek other means of obtaining evidence to support his allegations that there was negligent and inadequate supervision because CO Seelbinder was allegedly sleeping at the time of this incident. The cross-motion is granted as to discovery demand No. 12.

In discovery demand No. 15, Claimant seeks the disciplinary history of Correction Sergeant Debra Turner, allegedly the first correction sergeant to respond to the incident. Defendant argues that such records are protected by Civil Rights Law §50-a and are confidential. Claimant argues that such records "may provide evidence" that Officer Seelbinder was sleeping and that the Sergeant falsified the alleged statement made by Claimant. I am mystified by this argument, and fail to see how Sergeant Turner's disciplinary history could possibly support allegations that another correction officer was sleeping on the night of this incident or that she falsified a statement made by Claimant. Nonetheless, if Claimant so desires, he may bring a motion pursuant to Civil Rights Law §50-a, which requires, inter alia, "a clear showing of facts sufficient to warrant" my review of the records. The papers before me on these motions reflect conjecture and speculation, but no facts. Accordingly, as to demand No. 15, Claimant's motion to compel is denied, and the State's motion for an order of protection is granted.

In discovery demand No. 16, Claimant seeks a diagram including cube numbers and location of furnishings of such cubes, the officers station, inmate bathroom and exit of Housing Unit D-1, all of which he argues are relevant to show that the distances traveled between various locations on the night of the incident were completed without the "sleeping" officer noticing the movement or Claimant's cut. The Defendant raises security and safety risks to staff and inmates arising from the dissemination of a housing diagram and post descriptions. Claimant's reference to the purported release of such information in Sanchez v State of New York (288 AD2d 647, mod 99 NY2d 247), does not persuade me that a balancing of his purported need for the diagram outweighs the security concerns raised by the Defendant (see Rosario v State of New York, Motion Nos. M-69369 and CM-69448, Claim No. 97663, Jan. 24, 2005, Patti J.). Moreover, I deny at this time Claimant's request that I order him to be allowed to submit a drawing in the form of a floor plan showing the distances "since Orleans Correctional facility and Marcy Correctional Facility are both referred to as ‘cookie cutter' facilities and are almost identical." I could consider such offers of proof, but only at a trial, perhaps with Claimant's explanation of what the Marcy Correctional Facility has to do with the claim at bar or with this evidentiary issue. However, at this time, as to this demand, Claimant's motion to compel is denied, and the State's motion for an order of protection is granted.

In discovery demand No. 18, Claimant seeks the production of "procedures for the Video Taping of inmates upon arrival to IPC in the Special Housing Unit (hereafter SHU) and movement thereafter in SHU while being held in IPC status" at Orleans, and in demand No. 19, the reasons and procedures relating to the destruction of such videotapes while in IPC status at Orleans. In Defendant's letter dated November 5, 2004, it advises the Court that it would provide a copy of the videotape for a $2.00 charge, but Claimant demurs in his November 9, 2004 letter in which he advises that he wishes the "unedited version." It is not clear to me that the Defendant is only offering an "edited version." Since demand No. 18 only seeks the procedures for videotaping, but not the videotape itself, and No. 19 only seeks the procedures for the destruction thereof, I am perplexed as to what is in issue here. Accordingly, since Defendant avers that it has available the videotape that Claimant apparently seeks and that said videos are maintained for five years, and since the dispute seems to be about the content thereof, I will deny Claimant's motion to compel production of the items sought in demand Nos. 18 and 19, without prejudice to its renewal, with greater clarity as to what is actually being demanded by Claimant and offered by the State. The State's motion for an order of protection as to these demands is granted.

The last disputed discovery demand is No. 20, which seeks the production of "any and all written or audio taped statements of victim or witnesses to the incident of July 15, 2002, involving the Claimant and any documents or reports prepared thereafter involving the statements of the victim or witnesses relating to said incident, or the reasons for and procedures relating to destruction of the requested materials." In its cross-motion the Defendant corrected its initial response and responded that it should have said that it had supplied as Exhibit C to its responses "the Unusual Incident Report and non-confidential investigative records consist of twelve pages... [t]he material not provided consists of an inmate statement and misbehavior report." The State submits that the confidentiality of inmate statements is part and parcel of the public interest privilege, citing Lowrance v State of New York (185 AD2d 268).

Again, when considering this demand, I do not lose sight of the only allegations in the claim which assert negligence, one, that Correction Officer Seelbinder provided inadequate supervision while sleeping on duty and two, relating to the purported foreseeability of the assault due to inmate Bell's prior behavior. The only allegation that demand No. 20 relates to is CO Seelbinder's allegedly negligent supervision, and, while I will deny the motion to compel at this point, I will not foreclose the possibility of an in camera inspection, upon proper papers, which might allow for sufficient redaction of witness statements that might be probative yet still respectful of the privilege asserted by the State. That can await such further motion practice as may be deemed advisable. For now, however, the State's motion for a order of protection is granted, and the Claimant's motion is denied.

I believe this resolves all the outstanding discovery demands, and I will now address the disputed interrogatories. In his motion Claimant avers that he served his demand for interrogatories on February 8, 2004. On May 5, 2004, Defendant did supply its responses and objections to said interrogatories (Exhibit A to the cross-motion). Claimant submitted an "Answer and Reply" to the cross-motion sworn to May 14, 2004. After my inquiry, in his November 9, 2004 correspondence, Claimant submits that interrogatories 2, 3, 6, 7, 8, 9, 13, 14, 15, 16, 18, 19, and 20 remain in dispute. I will address each interrogatory seriatim, summarizing what is sought, what remains in dispute and my resolution thereof.

Interrogatory No. 2 seeks the identity of inmate witnesses, their assigned locations and whereabouts at the time of the incident and information regarding any such witness statements. Defendant observes that this interrogatory parallels information sought in discovery demand Nos. 7, 11 and 12. My discussion and resolution of those demands, articulated above, pertains to this interrogatory and Defendant's cross-motion for an order of protection as to this interrogatory is granted.

Interrogatory No. 3 seeks the identity, etc., of any other unnamed individuals who witnessed or have knowledge of the incident. This interrogatory parallels discovery demand No. 3, which I found to be overly broad. This interrogatory is nonspecific and vague, and Defendant's cross-motion for an order of protection as to this interrogatory is granted.

Interrogatory No. 6 seeks each employment-related proceeding against any person who had direct involvement in the investigation of the incident that was based upon the making or falsifying of any document or report. As I found above in contemplating discovery demand No. 15, such records are protected by Civil Rights Law §50-a and are confidential, but Claimant, if he so desires, may bring a motion pursuant to Civil Rights Law §50-a, which requires "a clear showing of facts sufficient to warrant" my review of the records. Accordingly, Defendant's cross-motion for an order of protection as to this interrogatory is granted.

Interrogatory No. 7 seeks the total number of inmate-on-inmate assaults at Orleans for the year prior to and after the incident in question. Defendant responds that this information is irrelevant because it would encompass assaults under a variety of situations, locations, settings, etc. I find this interrogatory seeks information unrelated to the two existing theories of negligence pleaded in the claim, to wit, inadequate supervision by Officer Seelbinder and foreseeability related to inmate Bell's allegedly deteriorating condition. This interrogatory is unrelated to either theory. Accordingly, Defendant's cross-motion for an order of protection as to this interrogatory is granted.

Interrogatory No. 8 seeks the average number of inmate-on-inmate assaults involving weapons at all other medium security facilities operated by DOCS. This interrogatory is similarly unrelated to the theories espoused by Claimant. Defendant's cross-motion for an order of protection as to this interrogatory is granted.

Interrogatory No. 9 seeks the number of inmate-on-inmate assaults that have occurred while CO Seelbinder was supervising or had control over the inmates involved in such assaults. The Defendant's opposition raises irrelevancy because each staff assignment varies and may be distinct from an overnight dormitory assignment, such as Seelbinder's on the night of the incident. Defendant then asserts that such information, if maintained, would form part of the officer's personnel record, and disclosure would be governed by Civil Rights Law §50-a. While this interrogatory seems closer in relevance to Claimant's theory of inadequate supervision, any such access would have to be sought by proper motion practice pursuant to Civil Rights Law §50-a. Defendant's cross-motion for an order of protection as to this interrogatory is granted.

Interrogatory No. 13 seeks any and all policies relating to supervision of inmates in the 11:00 p.m. to 7:00 a.m. shift in the dormitory housing unit. Interrogatory No. 14 seeks a specific policy number or other listing of the "Individual Security Post Description" for housing unit D-1 at Orleans at the time of the incident. Defendant's opposition is the same for both of these interrogatories, and generally recites confidentiality and a breach of security that could affect the safety of both inmate population and staff. These requests parallel discovery demand No. 16, and my determination above with respect to that demand governs these interrogatories. Moreover, while Claimant relies upon Beyah v Goord (309 AD2d 1049, 1052) generally to support various disclosures, the Third Department held that "[w]e agree with respondent's contention that employee staffing records, ‘if disclosed would endanger the life or safety of any person' (Public Officers Law §87 [2] [f]), by revealing the postings of correction officers throughout the facility." Defendant's cross-motion for an order of protection as to these interrogatories is granted.

Interrogatory No. 15 seeks all reasons and policies relating to the destruction of evidence taken from Claimant at Orleans. The Defendant's response, upon information and belief, is that "any such evidence would only be relevant to prove the occurrence of an assault, and such proof was preserved photographically." The Defendant further responds that there would be no reason to maintain evidence subsequent to the time for the exhaustion of appeals from the assailant's Tier Hearing.

Some of this debate continues to be confusing to me (see footnote 2, supra), as it is not clear who the assailant is, or at least whom the assailant was found to have assailed. This of course makes a determination about the destruction of evidence problematical, since it is not clear what such hearing was about. Nonetheless, the incident here occurred on July 15, 2002, a notice of intention to file a claim was served upon the Defendant on August 29, 2002, and the claim was filed on May 12, 2003. I would surmise that any evidence that was part and parcel of the underlying disciplinary proceedings and appeals therefrom, the protective custody hearing for Claimant, and/or the subject of the allegations contained in the notice of intention and the claim, would at least be inventoried or preserved, either photographically or otherwise. If any such evidence was destroyed, a description of that which was destroyed, and the date of such destruction should be made available to Claimant. Whether or not the preserved evidence, actual or photographic, will suffice for evidentiary purposes at trial is something that will have to await trial, and my opportunity to review the same. If tangible evidence should have been preserved, and was not, and if the absence of such evidence adversely affects Claimant's ability to present his case, then, and only then, can I consider sanctions or other remedies for such occurrence. Accordingly, to the extent that any such evidence in question remains in existence, the Defendant is directed to preserve the same. The Defendant is also directed to provide a list of any such evidence that may have been destroyed as well as a list of preserved evidence, including photographs, to the Claimant within 45 days of service of a file-stamped copy of this decision and order. The Claimant's motion to compel as to this interrogatory is granted to that extent, and the Defendant's cross-motion for an order of protection in all other respects is granted.

Interrogatory No. 16 seeks to identify any and all reasons for and policies related to the denial of Claimant's request to have additional clothing held as evidence after his transfer to Livingston. Defendant responds that, upon information and belief, there would be no institutional reason for preserving the evidence, and the State Police closed its file for lack of cooperation from Claimant and the other inmate assaulted that night. I find this response to be adequate, and to that extent the cross-motion for an order of protection as to this interrogatory is granted.

Interrogatory No. 18 seeks to have Defendant identify any and all procedures relating to the transfer of an inmate in involuntary protective custody (IPC) status on the same bus as other inmates. Defendant has replied that there is no procedure and that once an inmate leaves a correctional facility he is no longer considered to be in IPC status because he is leaving behind those inmates from whom it is assumed he needed separation. Moreover, Defendant affirms, albeit upon information and belief, that each inmate is secured within the bus while in transit. Claimant, in his answer and reply, asserts that while inmates are shackled and handcuffed while in transit they are still free to use the bathroom in the back of the bus, and he opines that this cannot be considered secured. He urges that these considerations are material to damages related to emotional distress. It is not necessary to resolve this issue at this point, as I direct that the trial of this matter be bifurcated, and any such issues relating solely to damages can wait until there is a determination as to the State's liability. Accordingly, the cross-motion for an order of protection as to this interrogatory is granted, and the motion to compel is denied at this time, without prejudice to its renewal after the liability phase of this trial. Claimant's request for sanctions here relates to Defendant's original response to discovery demand No. 17, in which it acknowledges now that it had wrongfully stated that inmate Bell was not on the bus, and advises that inmate Bell was on the bus. This acknowledgment and correction of an initially incorrect response causes no harm to Claimant and does not warrant the imposition of sanctions, and Claimant's request therefor is denied.

Interrogatory No. 19 seeks the lists of inmates on the same bus as Claimant when he was transferred from Orleans to Livingston. Defendant's response mirrors its response to interrogatory No. 2, which I found relevant in my discussion and resolution of information sought in discovery demand Nos. 7, 11 and 12. Defendant's cross-motion for an order of protection as to this interrogatory is similarly granted. Additionally the Defendant argues that Claimant sustained no injury while in transport, and thus the information is irrelevant. Presumably this interrogatory seeks information that would pertain to Claimant's allegations of damages for emotional distress, and my comments above with respect to bifurcation of this trial pertain here as well. Beyond that, however, to the extent that Claimant is implying that the State was negligent in permitting inmate Bell and Claimant to travel on the same bus, there is no such allegation in the claim, and I find it difficult to comprehend such alleged emotional distress as simply an element of damages from the pleaded causes of action.

Interrogatory No. 20 seeks the number of misbehavior reports relating to disorderly, aggressive or violent conduct issued to "inmate 1" (defined by Claimant as inmate Bell) prior to the assault of Claimant. The Defendant has responded that there were none. Claimant asserts in his letter of November 9, 2004, that this is still in dispute, but with no explanation. As far as I can tell it is not in dispute, and the cross-motion for an order of protection is granted.

Accordingly, the motion and cross-motion are granted in part and denied in part, in accordance with the above. That part of Claimant's motion seeking sanctions is denied.

March 22, 2005
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims



  1. [1]Defendant's General Objections, paraphrased, include (A) a request for privileged information; (B) disclosure of information not in Defendant's possession, custody or control; (C) the demand's instructions and definitions go beyond or are inconsistent with the CPLR's requirements; (D) the demands are overly broad, unspecific, vague , burdensome, etc., and (E) do not waive objections with respect to competence, relevance, materiality, privilege, and admissibility, etc.
  2. [2]It appears that at least two inmates were assaulted on the night in question, both possibly by the same perpetrator, although that is not clear to me. Thus, there apparently were two incidents, with separate investigations, and separate hearings. While Defendant has asserted that there was no hearing to determine who perpetrated the assault on Claimant, it would seem that the disciplinary hearing (see i.e., the discussion herein relating to discovery demand No. 11, infra) for inmate Bell that the Defendant does allude to, would be the one in conjunction with the alleged assault upon inmate Crawford.