New York State Court of Claims

New York State Court of Claims

CARDEW v. THE STATE OF NEW YORK, #2005-019-537, Claim No. 110023, Motion No. M-69700


Synopsis


Claimants' motion for an order compelling disclosure upon an in camera inspection is granted in part and denied in part.

Case Information

UID:
2005-019-537
Claimant(s):
ROBERT CARDEW
Claimant short name:
CARDEW
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110023
Motion number(s):
M-69700
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
ROBERT CARDEW, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
June 9, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moved for an order compelling a response to discovery demands dated December 9, 2004 and December 20, 2004. By way of Decision and Order, this court directed the defendant State of New York (hereinafter "State") to submit to the court the documents at issue for an in camera inspection. (Cardew v State of New York, Ct Cl, March 8, 2005, Lebous, J., Claim No. 110023, Motion No. M-69700 [UID No. 2005-019-515]).[1] In accordance with said Decision and Order, the State has now supplied the discovery documents for the court's in camera inspection in the manner directed, namely one copy in unredacted form and the second copy redacted in a manner which the State believes presents information relevant to this claim while removing privileged or irrelevant information.

As a brief review, this claim arose when claimant was assaulted by another inmate, Jonathan Cardwell, using a razor at Elmira Correctional Facility on September 15, 2004. The theory of liability asserted in this claim is one of negligent supervision, namely that the State failed to protect claimant and knew or should have known that claimant was at risk and/or that the attacker, inmate Cardwell, had violent propensities.


The discovery documents provided to the court and discussed herein are as follows: (1) inmate Cardwell's disciplinary history (hereinafter "Cardwell's Disciplinary History"); (2) an Inmate Misbehavior Report relating to inmate Cardwell for a March 31, 2004 incident; and (3) an Involuntary Protective Custody Recommendation for inmate Cardwell also dated March 31, 2004. The court has completed an in camera review of the aforesaid documents and finds as follows:


1. Cardwell's Disciplinary History

A review of Cardwell's Disciplinary History reveals six disciplinary entries (including this incident) spanning from July 11, 2003 to November 8, 2004. The State has proposed redactions of all the disciplinary entries except for the September 15, 2004 incident at issue here.


The first two entries on Cardwell's Disciplinary History report are incidents from July 11, 2003 and September 11, 2003 both of which indicate "out of place" movement violations. In this court's view, these non-violent entries are not material and relevant to the case at bar and may be redacted in their entireties.


The third and fourth entries on Cardwell's Disciplinary History report both relate to an incident which occurred on March 31, 2004 at Clinton Correctional Facility.[2] The third entry is for a "fighting" violation, while the fourth entry is noted as "IPC" or Involuntary Protective Custody. The court finds that these entries pertaining to a violent incident predating this assault are material and relevant on the issue of notice to the State of inmate Cardwell's violent propensities and, as such, should be disclosed. In other words, the court finds the State's proposed redactions of these incidents are better suited to arguments at trial on the ultimate weight to be accorded to these incidents, rather than their relevancy or admissibility in the first instance. In sum, the third and fourth entries should be disclosed to claimant.


The fifth entry on Cardwell's Disciplinary History report is the September 14, 2004 assault which is the subject of this claim and, as such, is material and relevant and should be disclosed.


The sixth entry on Cardwell's Disciplinary History report is an incident that occurred on November 8, 2004 after the assault at issue here. The court finds that the incident occurring on November 8, 2004 may be redacted in its entirety inasmuch as it occurred after the subject incident.

In sum, the court finds that Cardwell's Disciplinary History report should be disclosed to claimant, although the first, second, and sixth entries may be redacted in their entireties.


2. Cardwell's Inmate Misbehavior Report for March 31, 2004

The State has submitted the Inmate Misbehavior Report dated March 31, 2004 relating to the third entry noted on inmate Cardwell's Disciplinary History report. The State objects to the disclosure of the Inmate Misbehavior Report in its entirety since the matter occurred five months prior to the instant matter and at a different facility. For the same reasons stated above, however, the court finds that the Inmate Misbehavior Report dated March 31, 2004 is material and relevant on the issue of notice to the State of inmate Cardwell's violent propensities and, as such, should be disclosed. However, the Inmate Misbehavior Report may be redacted so as to delete the names and identification numbers of other inmates which the court finds are not material and relevant herein. In sum, the court finds that the Inmate Misbehavior Report should be produced to claimant with the redactions noted herein.


3. Cardwell's Involuntary Protective Custody Recommendation

The State has submitted the Involuntary Protective Custody Recommendation form dated March 31, 2004 relating to the fourth entry noted on inmate Cardwell's Disciplinary History report. The State objects to the disclosure of the Involuntary Protective Custody Recommendation in its entirety since the matter occurred five months prior to the instant matter and at a different facility. For the same reasons stated above, however, the court finds that the Involuntary Protective Custody Recommendation dated March 31, 2004 is material and relevant on the issue of notice to the State of inmate Cardwell's violent propensities and, as such, should be disclosed. However, the Involuntary Protective Custody Recommendation may be redacted so as to delete the names and identification numbers of other inmates which the court finds are not material and relevant herein. In sum, the court finds that the Involuntary Protective Custody Recommendation form should be produced to claimant with the redactions noted herein.


The Chief Clerk of the Court is directed to seal and preserve both sets of documents (redacted and unredacted) provided to the court for this in camera inspection in the event of possible appellate review.


Accordingly, in view of the foregoing, it is ORDERED that claimant's motion, No. M-69700, is GRANTED IN PART and DENIED IN PART in accordance with the foregoing. The State is directed to provide the aforementioned discovery documents to claimant within 45 days of the date of filing of this Decision and Order.


June 9, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:

  1. DECISION AND ORDER, Lebous, J., Claim No. 110023, Motion No. M-69700, filed March 22, 2005.
  2. Notice of Motion No. M-69700, dated January 28, 2005, and filed February 2, 2005.
  3. Affidavit of Robert Cardew, in support of motion, sworn to January 28, 2005.
  4. Memorandum of Law, in support of motion, dated January 23, 2005.
  5. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated February 16, 2005, and filed February 18, 2005.
  6. Letter from Carol A. Cocchiola, AAG to the Court, dated and received May 20, 2005, enclosing information for in camera review.

[1]Selected unreported decisions from the Court of Claims are available via the Internet at

[2]The underlying reports for these two entries are also submitted by the State and will be reviewed separately hereinbelow.