New York State Court of Claims

New York State Court of Claims

DeLEON v. THE STATE OF NEW YORK, #2005-013-043, Claim No. 110416, Motion No. M-70290


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:
Defendant's attorney:
Attorney General of the State of New York
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 16, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


On August 12, 2005, the following papers were read on motion by Claimant for the appointment of counsel and to compel discovery:

Notice of Motion and Affidavit Annexed

Affidavit in Opposition and Exhibits Annexed

Claimant's Reply dated August 9, 2005

Filed Papers: Claim; Answer; Bill of Particulars

Upon the foregoing papers, the motion is denied except to the extent noted.

Claimant seeks the appointment of counsel and an order compelling discovery. This motion was filed on June 16, 2005, and was made returnable by the Clerk of the Court on July 20, 2005. The Defendant's affidavit in opposition also sought an order of protection, albeit without a notice of cross-motion, and thus I consider only the relief sought by Claimant, without prejudice to the Defendant, should it be so advised, to seek an order of protection hereinafter.

Claimant submitted correspondence dated August 9, 2005, in reply to the Defendant's opposition, more than two weeks past the submission date of the motion. In his correspondence Claimant contends that he received the Defendant's opposition on July 13, 2005, and he was to be transferred to another correctional facility on July 17, 2005, that he was under "admission detention" from July 17 to July 27, 2005, and was therefore unable to prepare documents for notarization and to gather legal issues from the law library to support his reply. Claimant did not write to the Court seeking an adjournment to allow him to respond or to advise the Court of his time constraints between July 13, when he received the Defendant's papers, and July 17, when he was to be transferred to Elmira Correctional Facility. But since I had not yet reviewed the motion papers, and I perceive no prejudice to the Defendant, I will consider the motion adjourned until August 12, 2005, the date Claimant's reply was filed, and I will consider the same herein.

However, appended to the August 9, 2005 reply is a letter dated August 7, 2005 to the late Chief Clerk of the Court of Claims, David B. Klingaman, raising allegations that the Defendant is "tampering with evidence to overturn the outcome of the claim." The letter refers to allegations that Claimant was not receiving certain medications from July 27, 2005 until August 5, 2005. Claimant made similar allegations in Paragraph 2 of his affidavit in support, wherein he alleges that "the defendant continues tampering with evidence turning the action more complex for a pro se inmate... who is handicapped by the American Language and by the legal understanding." Claimant provides no support for his insinuations of evidence tampering and no examples to demonstrate any substance whatsoever to his inappropriate assertions. I would review any instances where evidence has been tampered with, and would impose sanctions upon a party who engaged in such conduct. Here it is not clear whether such bald allegations are directed at the Department of Correctional Services or at the Department of Law, let alone on what bases Claimant relies.

I take such allegations seriously, and would not countenance any party who tampers with evidence, nor would I tolerate any party who makes spurious and fallacious charges. Regardless, without any factual support, I dismiss Claimant's allegations as being frivolous. Should Claimant repeat such empty allegations in the future, unless they are supported by substantive evidence, I would unhesitatingly consider the imposition of sanctions against him.

First, I address the Claimant's application for the appointment of counsel to serve without compensation. While he has already had imposed a reduced filing fee herein pursuant to CPLR 1101(f) by Presiding Judge Richard E. Sise on February 4, 2005, here he does not address his eligibility for poor person status. Nonetheless, there are no other costs necessary to prosecute a claim in the Court of Claims, and thus no other privileges are available under CPLR article 11. To the extent that this motion seeks the appointment of counsel to represent the Claimant, such relief is discretionary (Matter of Smiley, 36 NY2d 433; Stephens v State of New York, 93 Misc 2d 273). For litigants in private litigation, absent statutory provision therefor, as in the instant claim which seeks damages, inter alia, for Defendant's alleged negligence and intentional actions of certain correction officers in which Claimant was allegedly injured, there is no power in the courts to direct the provision of counsel or to require the compensation of retained counsel out of public funds (Matter of Smiley, 36 NY2d 433, supra). Moreover, Claimant has failed to demonstrate that he served a copy of this motion upon the County Attorney as required by CPLR 1101(c), (see Bowman v State of New York, 229 AD2d 1024). Accordingly, to the extent that the assignment of counsel is sought in this motion, it is denied.

I now address the motion to compel discovery. Claimant seeks to compel production of several items which the Defendant has declined to produce for various reasons. Each such contested request is addressed below, utilizing the paragraph numbers of Claimant's April 11, 2005 notice for discovery and inspection, and referencing Defendant's responses dated May 17, 2005:

Paragraph 1
: Claimant contends the "Employee Rules Manual" should not be considered confidential. He argues that the Defendant "failed" to demonstrate how disclosure of the same would or could compromise the security of the correctional facility, or that the request was overly broad in nature and burdensome.
Paragraph 2
: Claimant sought a "copy of all pleadings of investigative reports" related to the September 17, 2004 incident at Wende Correctional Facility (Wende), including the incident at SHU-G-42. He objects to the purportedly limited provision of documents which fail to include those relating to the SHU incident (dated in the motion as October 2, 2004). Claimant further challenges the veracity of certain of the provided documents.
Paragraph 5
: Claimant sought a copy of the A-block log book and the SHU G-block log book, and certain SHU forms, relative to September 17, 2004. Defendant provided a redacted copy of the A-block log book, but Claimant still wishes the other documents sought but not provided by the Defendant in its response, and specifies what he believes to be time discrepancies and purported time alterations or changes which he suggests are probative of his claim.
Paragraph 6
: Claimant sought all prior complaints, disciplinary actions and administrative grievances of any sort with respect to two named correction officers, and the results thereof. Claimant objects to the Defendant's response which cited confidentiality pursuant to Civil Rights Law §50(e) (sic, should be Section 50-a), as well as relevancy. Claimant wishes to show a predisposition of these officers to assault inmates and write false reports, relying, inter alia, on Civil Rights Law §50-a, subdivisions 1-3.
Paragraph 7
: Claimant sought the "staff planning grid" for Wende on September 17, 2004 showing the names, positions and time that medical personnel were assigned to A-block and SHU G-block, to which the Defendant objected, citing confidentiality and noting that the names of the medical personnel would be listed in Claimant's medical records, for which Claimant had not provided an original executed medical authorization. Claimant contends that an original authorization is on file with the Court, which he requests that I provide to the Defendant. He also argues that this information is not related to facility security and thus is not properly deemed confidential.

Paragraphs 8 and 9
Claimant sought the names and positions of all medical personnel who treated him relative to the incident of September 17, 2004 and all related medical records and reports relating to the September 17, 2004 incident. The Defendant declined to provide the sought-after reports because it was not in receipt of the original executed medical authorization. In his motion, Claimant wishes the Court to order such disclosure and also seeks a copy of a log book page from the Wende Regional Medical Unit for September 17, 2004 to purportedly demonstrate the falsity of a document which was produced by the Defendant.

In opposition to the motion, the Defendant similarly itemized its objections which are reviewed below. As to Paragraph 1, the State reiterates its objections relating to the confidentiality of the Employee Rules Manual as well as it being an overly broad and burdensome request. The claim herein includes causes of action sounding in assault by correction officers including allegedly false and fabricated reports of the underlying incident, the delay in provision of medical treatment, and what might be characterized as the imposition of cruel and unusual punishment. Claimant has failed to demonstrate the necessity or relevance of the Employee Rules Manual as it might relate to the underlying causes of action, and his motion with respect thereto is denied.

With respect to Paragraph 2, the Defendant notes that the claim herein and the bill of particulars only refer to the incident on September 17, 2004, and not any negligence or cause of action emanating from an incident on October 2, 2004. To be sure, the claim at paragraphs 17-19 describes a purported coercion by a correction lieutenant on October 2, 2004 to force Claimant to admit his culpability on the day of the September 17, 2004 incident, but fails to support any of the underlying causes of action alleging tortious conduct resulting in Claimant's injuries. The bill of particulars does not reference an incident of October 2, 2004. Accordingly, I find that the Defendant's response with respect to this demand is adequate, and that it has provided all demanded documents relative to the claim, and that part of Claimant's motion is denied. The Claimant's challenges to the accuracy or veracity of certain of the documents provided by the Defendant can be addressed at trial, and are not resolvable in a motion seeking the production of documents.

With respect to Paragraph 5, Claimant has raised questions as to the authenticity of the documents provided by the Defendant in response to this discovery demand. Again, as noted above, the accuracy or veracity of documents offered into evidence should be resolved at trial. The motion seemingly asks for true and accurate copies of the sought-after documents, suggesting that the documents provided are false or "suspect" (Claimant's term). The sufficiency and authenticity of the documents provided during discovery may be reviewed at trial. Claimant's motion here seemingly objects to the content of the documents provided, not to a failure to provide them. Claimant's motion in this regard is denied.

With respect to Paragraph 6, Defendant relies, as it did in its response, upon the confidentiality provisions of Civil Rights Law §50-a, as well as relevancy. Defendant urges me to rely upon the holding in McGriff v State of New York ( Ct Cl, UID #2004-034-554, Claim No. 108461, Motion No. M-68053, July 9, 2004, Hudson, J.)[1], wherein a similar request for discovery of a correction officer's personnel file was rejected.

However, the Defendant has neither addressed nor distinguished an earlier decision of mine, in Ramos v State of New York (Ct Cl, UID #2003-013-029, Claim No. 102013, Motion Nos. M-66661, M-67180 and M-67538, Nov. 19, 2003), with the same Assistant Attorney General appearing for the Defendant, where I directed an in camera inspection of the personnel files of the correction officers involved, albeit noting that each of the officers was aware of the request and had an opportunity to be heard (Civil Rights Law §50-a[2]). Claimant asserts that there were more than five incidents of assaults on inmates between 2002 and 2004 in which the named officers were involved, and he suggests that this demonstrates a propensity of these officers to assault inmates and a predisposition to write false and fabricated misbehavior reports (see Ramos v State of New York, Ct Cl, UID #2003-013-029, Claim No. 102013, Motion Nos. M-66661, M-67180 and M-67538, Nov. 19, 2003, supra). Claimant has failed to serve the named officers with a copy of the instant motion, and provide them with an opportunity to be heard as required by Civil Rights Law §50-a[2]. Therefore, that part of Claimant's motion is denied without prejudice to another application consistent with the requirements of Civil Rights Law §50-a.

With respect to Paragraph 7, seeking the "staff planning grid" for Wende on September 17, 2004 showing the names, positions and time that medical personnel were assigned to A-block and SHU G-block, the Defendant has offered to provide the names of medical personnel who were on shift and post descriptions for September 17, 2004. I find that to be adequate for the purposes articulated. Thus, while I deny Claimant's request for the "staff planning grid," I direct the Defendant to supply the information it offered to provide in Paragraph 12 of its opposition to this motion, within 30 days of service of a file-stamped copy of this order.

With respect to Paragraphs 8 and 9 and the issue of the provision of an original executed medical authorization, I decline to search the file to find the purported original authorization in the Court's files. Rather, I direct the Defendant to provide the Claimant with another HIPAA compliant medical authorization form for his completion and return directly to the Defendant. Defendant shall provide the same within 30 days of service of a file-stamped copy of this order. I decline to direct the Defendant to provide a copy of said medical records without the payment of copying fees. Even were Claimant deemed to be a poor person, the provision of free copies is not a benefit provided under CPLR article 11. Claimant, however, could inspect those records, and then select only those pages which he desires to be copied and that he is prepared to pay for. However, for purposes of the relief sought with respect to this issue, that part of Claimant's motion is denied.

In sum, Claimant's motion to compel is denied in all respects, except as to those limited items in Paragraph 7 as addressed above, and the provision of another medical authorization form.

November 16, 2005
Rochester, New York

Judge of the Court of Claims

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