Claimant moves for an order compelling the defendant to respond to his prior
discovery demands. The State of New York (hereinafter "State") opposes the
motion and has simultaneously submitted the documents requested by claimant for
an in camera inspection.
This claim arose when claimant was physically assaulted by another inmate in a
stairwell while going to an exercise area at Southport Correctional Facility on
March 27, 2003. 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
Mason Karriem, had violent propensities.
A brief review of the prior motion practice in this case is warranted.
Claimant previously moved for an order compelling a response to a discovery
demand dated June 16, 2003 pursuant to CPLR 3124. In a Decision and Order dated
February 25, 2004, this court directed the State to submit the documents at
issue for an in camera inspection. (Boatwright v State of New York
Cl, February 25, 2004, Lebous, J., Claim No. 107672, Motion No. M-67961 [UID No.
More specifically, the court
directed the State to submit "[i]nmate Karriem's disciplinary history
including violent misbehavior reports, if any
. at p 3;
emphasis added). In response to the court's direction to submit the violent
misbehavior reports, if any, for the ten disciplinary incidents listed on inmate
Karriem's disciplinary history, the State submitted only one set of such
documents, namely an inmate misbehavior report, an unusual incident report and
related memorandum pertaining to an April 10, 1999 incident. Ultimately, the
court directed the State to provide to claimant, in unredacted form, inmate
Karriem's disciplinary history (including nine out of the ten disciplinary
incidents listed thereon dated November 9, 1998; January 8, 1999; April 10,
1999; September 30, 2000; October 27, 2000; February 14, 2001; February 15,
2001; and March 27, 2003[this incident]), as well as the corresponding documents
for the violent incident of April 10, 1999.
Now by way of this motion, claimant requests "[a]ll
reports on inmate Karriem" and the corresponding unusual incident reports for
the rest of the dates cited above other than April 10, 1999, which was already
provided. (Claimant's motion to compel). In anticipation of this court's
practice, the State has submitted the requested documents for an in camera
review along with its opposing papers.
particularly, the State has submitted an inmate misbehavior report for the
incidents occurring on November 9, 1998; January 8, 1999; September 30, 2000;
October 27, 2000; February 14, 2001; and February 15, 2001; as well as unusual
incident reports for the November 9, 1998; September 30, 2000; and February 15,
The State does not
strenuously deny the relevance of any of these documents.
A review of these documents reveals that the incidents of November 9, 1998,
September 30, 2000, October 27, 2000, and February 15, 2001 involve either
actual assaults on correction officers or threatening or violent conduct toward
officers. Obviously these documents involving violent conduct are material and
relevant and should be disclosed to claimant. The incidents of January 8, 1999
and February 14, 2001 are non-violent in nature but involve inmate Karriem's
failure to obey orders from correction officers. The court finds that these
non-violent incidents are potentially indicative of an overall course of conduct
of non-conformity and disrespect for authority and institutional rules by inmate
Karriem. Accordingly, the court finds that to redact the non-violent entries
pre-dating this incident would be to exclude the possibility of a finding that
inmate Karriem's behavior, both violent and non-violent, was of an escalating
pattern. That having been said, however, the court notes that the disclosure of
these non-violent incidents is not to say that these incidents will be
admissible at trial, only that at this stage this court cannot exclude any of
these prior non-violent incidents as irrelevant. (Silva v State of New
York, Ct Cl, May 30, 2003, Midey, Jr., J., Claim No. 103100, Motion No.
M-65539 [UID No. 2003-009-18]). As such, the court finds that the inmate
misbehavior reports for the November 9, 1998; January 8, 1999; September 30,
2000; October 27, 2000; February 14, 2001; and February 15, 2001 incidents, as
well as the unusual incident reports for the November 9, 1998; September 30,
2000; and February 15, 2001 are material and relevant on the issue of notice to
the State of inmate Karriem's violent propensities and should be disclosed.
Further, the court accepts the proposed redactions by the State which are
minimal and relate only to medical information regarding inmate Karriem and/or
personal information regarding the correction officers.
Finally, claimant also seeks an order directing the State to provide the number
of total incidents of violent attacks on staircases inside Southport, as well as
the corresponding log book entries. The State has represented that such
information does not exist. As such, the court cannot compel the State to
produce information that does not exist.
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-70499, 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