Claimant, an inmate, moves for an order compelling the defendant to provide
additional responses to his discovery demands.
The defendant State of New York (hereinafter "State") opposes the motion.
This claim alleges that claimant was sexually assaulted on June 8, 2002 by
another inmate identified as Fred Meyers, # 95-A-8522, while incarcerated at
Elmira Correctional Facility. More specifically, claimant alleges that inmate
Meyers was known by the State to have violent and/or sexually violent
Claimant served various discovery demands on the State all of which were filed
with the Clerk of the Court on February 27, 2004. The State's responses were
filed with the Clerk of the Court on March 22, 2004. Thereafter, by way of
letter to the court dated September 22, 2004, claimant's attorney requested,
among other things, that the court conduct an in camera review of inmate Meyers'
file with the Department of Correctional Services("DOCS"). The court advised
counsel in writing that such requests must be made by way of formal motion.
(Court's letter dated September 27, 2004). Thereafter, in May 2005, claimant's
counsel telephoned chambers at which time he was again advised that his request
for an in camera review must be made by formal motion. Now, finally, counsel
has submitted the motion papers that were first discussed nearly one year ago.
Claimant's requests must be viewed in the context of his theory of liability,
namely negligent supervision. 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 had reason to know that claimant was at
risk of being assaulted and yet failed to provide reasonable protection; (2) the
State knew or had reason to know 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). Although claimant's papers
do not clearly articulate the exact documents sought, the court has reviewed the
motion papers as well as all related discovery to date and has been able to
determine that claimant is requesting an in camera review of seven categories of
documents each of which the court will review in seriatim.
First, claimant requests additional information regarding a reference contained
in the State's discovery responses to an incident in which inmate Meyers
threatened another inmate, named Hobbs. Claimant argues that such a prior
threat, if known to the State, may go to the issue of the State's notice of
inmate Meyers' violent propensities. The court agrees. Accordingly, the court
directs the State to produce for an in camera review, the inmate misbehavior
reports pertaining to inmate Meyers' threat of inmate Hobbs and/or any other
Second, claimant seeks additional information regarding the notation in the
State's discovery responses that inmate Meyers' sexual assault of claimant had
been confirmed by two confidential sources. The court finds such information is
material and relevant. Accordingly, the court directs the State to produce for
an in camera review the statements and/or reports made by or regarding the two
sources that allegedly confirmed the subject attack.
Third, claimant seeks "[t]he Court compel the State to turn over the files to
conduct an in camera review of inmate Fred Meyers Department of Corrections file
for any information of his violent or sexual behaviors that might give notice."
(Affirmation of Rory A. McMahon, Esq., ¶ 7). Claimant's vague reference
to the DOCS' file will be construed as a request for an in camera review of
inmate Meyers' inmate disciplinary history, as well as inmate misbehavior
reports for any incidents listed thereon that are violent and/or sexual in
nature. Obviously, such reports, if any, may be material and relevant to this
claim. Consequently, the State is directed to produce Inmate Meyers' inmate
disciplinary history for an in camera review, as well as the corresponding
inmate misbehavior reports for any incident listed thereon that is violent
and/or sexual in nature.
Fourth, claimant requests "[t]hat the Defendant forward any reports or
statements that may have been done." (Affirmation of Rory A. McMahon, Esq.,
¶ 8). The court finds this request to be vague and, as such, denies this
Fifth, claimant "[r]equests the Court provide counsel with any other
information in this file that the Court deems appropriate." (Affirmation of
Rory A. McMahon, Esq., ¶ 9). The court finds this request to be vague
and, as such, denies this request.
Sixth, claimant requests the State produce "[a] list of all inmates
incarcerated at Elmira Correctional Facility from January 1, 2000 to January 31,
2003." (Affirmation of Rory A. McMahon, Esq., ¶ 10). The stated purpose
of this request is to be able to ascertain the identity of an inmate identified
as "Woody" whom, it is alleged, was also sexually assaulted by inmate Meyers.
The court finds this demand to be overly broad. That having been said, however,
obviously any previous sexual assaults are material and relevant on the issue of
the State's notice of this alleged assault. However, any sexual assaults
committed by inmate Meyers while incarcerated should be included on the inmate
disciplinary history already directed to be produced.
The final and seventh request by claimant is that the State provide "[t]he
names of prison guards, employees, social workers, counselors and medical staff
who treated members of "H" Block." (Affirmation of Rory A. McMahon, Esq.,
¶ 14). Claimant indicates this information will allow him to identify the
counselor to whom both claimant and inmate "Woody" allegedly reported their
sexual assault. The court finds this demand overly broad and, as such, will be
With respect to all the documents that this court has directed the State to
produce for an in camera review, the State is directed to produce two copies of
each document, with one copy of each document to be unredacted and the second
copy 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 forty-five (45) 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.
Consequently, in view of the foregoing, it is ORDERED that claimant's motion to
compel discovery, Motion No. M-70384, is GRANTED IN PART and DENIED IN PART. In
accordance with the foregoing, the State is directed to submit the
aforementioned documents to the court for an in camera review within forty-five
(45) 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 relating to those specific documents.