Claimant, an inmate appearing pro se, moves for an order compelling the
defendant to respond to his discovery demands and/or striking the defendant's
answer and/or affirmative defenses for its failure to provide said responses
pursuant to CPLR 3126. The State of New York (hereinafter "State") requests
additional time to respond to claimant's various discovery demands.
On September 15, 2004, claimant alleges he was assaulted by another inmate,
Jonathan Cardwell, due to the negligent supervision of correction officers at
Elmira Correctional Facility. This claim was filed with the Clerk of the Court
on October 27, 2004. The State filed a Verified Answer on November 24, 2004.
On or about December 9, 2004, claimant mailed to the State a discovery demand
entitled "Notice To Produce Names and Addresses Of All Witnesses And Expert
Witnesses And Other Information." On or about December 20, 2004, claimant
mailed to the State a second discovery demand entitled "NOTICE OF DEMAND FOR
PRODUCTION OF DOCUMENTS FOR DISCOVERY AND INSPECTION." On January 4, 2005 and
January 18, 2005, claimant mailed letters to the State requesting responses to
said demands. The State never responded to the discovery demands or subsequent
letters. On February 2, 2005, claimant filed this instant motion seeking to
compel the State to respond to his discovery demands and/or striking the State's
answer and/or affirmative defenses for its failure to respond to those demands.
In opposition, the State indicates that it has provided a partial response under
separate cover to claimant, but will need an additional 60 days to obtain the
information and numerous documents requested. Additionally, to the extent that
claimant's discovery demands request the disciplinary history and related
disciplinary hearing history of claimant's alleged attacker, Jonathan Cardwell,
the State indicates it will not submit such information directly to claimant,
but would present it to this court for an in camera review.
It is well-settled that in order to establish liability in an inmate-on-inmate
assault case, a claimant must demonstrate one of the following: (1) the State
knew or should have known that claimant was at risk of being assaulted and yet
failed to provide reasonable protection; (2) the State knew or should have known
that the assailant was prone to perpetrating such an assault and the State did
not take proper precautionary measures; or (3) the State had ample notice and
opportunity to intervene but did not act. (Sanchez v State of New York,
99 NY2d 247). As such, inmate Cardwell's propensity to commit violent acts
prior to this attack is relevant on the issue of notice to the State of inmate
Cardwell's violent propensities and risk to claimant. For this reason, the
State is directed to produce two copies of inmate Cardwell's disciplinary
history and disciplinary hearing history including violent misbehavior reports,
if any, to the court for an in camera review. One copy is to be unredacted and
the second copy is to be redacted in a manner which the State believes presents
information relevant to this claim while removing privileged or irrelevant
information. These records are to be provided to the court within sixty (60)
days of the filing date of this Decision and Order. After reviewing these
documents, the court will issue a further decision regarding whether and how any
portion of these documents are to be provided to claimant.
Accordingly, in view of the foregoing, it is ORDERED that claimant's motion,
No. M-69700, is GRANTED to the extent that the State is directed to submit the
foregoing documents to the court for an in camera review within sixty (60) days
from the filing date of this Decision and Order. Upon reviewing said documents,
the court will issue a further decision regarding claimant's motion to compel.
Further, the State is granted an additional 60 days to obtain the additional
information and documents requested in order to respond fully to claimant's
Claim, filed October 27, 2004.
Verified Answer, filed November 24, 2004.
Notice of Motion No. M-69700, dated January 28, 2005, and filed February 2,
Affidavit of Robert Cardew, in support of motion, sworn to January 28,
Memorandum of Law, in support of motion, dated January 23, 2005.
Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated February
16, 2005, and filed February 18, 2005.