Claimant previously moved for an order compelling the defendant to provide
additional responses to his discovery demands. 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.
(Seager v State of New York
, Ct Cl, August 1, 2005, Lebous, J., Claim No.
107835, Motion No. M-70384 [UID No.
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, claimant alleges that he was sexually assaulted on June 8,
2002 by another inmate identified as Fred Meyers, # 95-A-8522, while
incarcerated at Elmira Correctional Facility and that this inmate was known by
the State to have violent and/or sexually violent propensities.
The court has completed an in camera review of the following documents provided
by the State pursuant to the prior Decision and Order: (1) confidential sources
regarding inmate Meyers' alleged attack on claimant; (2) inmate Meyers'
disciplinary history and corresponding inmate misbehavior reports; and (3)
information relative to an incident involving inmate Meyers' threat of another
inmate named Hobbs. Before proceeding, however, the court notes that in
determining whether the submitted documents are material and relevant to this
claim, this court is mindful that this alleged assault, while sexual in nature,
was an act of violence in the first instance and, as such, this court considers
any prior assaultive behavior on the part of inmate Meyers to be material and
relevant and subject to disclosure whether the conduct was sexual in nature or
not. (Baldwin v State of New York, Ct Cl, December 13, 2001, Read, P.J.,
Claim No. 103154, Motion M-64036 [UID No. 2001-001-086]).
1. Confidential sources regarding inmate Meyers' attack on
The State was directed "[t]o produce for an in camera review the statements
and/or reports made by or regarding the two sources that allegedly confirmed the
subject attack." (Seager, p 3). The State has produced four separate
single page memorandums.
The first memorandum is from Sgt. Volker to Capt. Wenderlich dated July 3, 2003
and the second memorandum is from Sgt. Backer to Capt. Wenderlich dated June 30,
2003. Both of these memorandums contain the names of facility staff who purport
to have unnamed confidential sources regarding the subject attack. Although the
State objects to the disclosure of these memorandums or, at a minimum, requests
redaction of the names of the facility staff members, the court notes that the
State has already produced both of these memoranda in unredacted form as
part of prior discovery. (Defendant's Reply to First Set of Discovery Demands
filed March 22, 2004, Exhibits B & D). Accordingly, the court finds there
is no need to address the disclosure of these documents.
The third and fourth memoranda are from the two facility staff members already
disclosed in the two prior memoranda. In the first instance, the court finds
the third and fourth memoranda are material and relevant and should be
disclosed. With respect to any proposed redactions, the State has again removed
the names of the two facility staff members in the proposed redacted versions.
However, the court finds that since the State already revealed the names of
these two facility staff members in its prior discovery responses there is no
need to direct any redactions. (Defendant's Reply to First Set of Discovery
Demands filed March 22, 2004, Exhibits B & D). Consequently, the court
directs that all four of these memoranda should be disclosed to claimant without
2. Inmate Meyers' inmate disciplinary history and inmate misbehavior
Next, the court directed the State "[t]o 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." (Seager, p 4). The State has submitted Inmate
Meyers' inmate disciplinary history which is four pages long and contains 31
entries dating from December 24, 1995 through June 13, 2002. From those 31
entries the State has submitted 16 corresponding inmate misbehavior reports for
the incidents which involve violent conduct.
The court has reviewed all 31 entries on inmate Meyers' inmate disciplinary
history and the 16 corresponding inmate misbehavior reports and finds that there
are four incidents involving violent behavior by inmate Meyers toward other
inmates. These four incidents involving inmate Meyer's fighting with other
inmates occurred on April 12, 1996; June 1, 1998; November 4, 1999; and February
The court finds these four incidents
are material and relevant to this claim and should be disclosed. However, the
court finds that the remaining entries on inmate Meyers' disciplinary history
contain non-violent incidents such as the use of obscene and/or abusive language
toward correction officers; various property complaints; and refusing direct
orders which are not material and relevant to this claim and need not be
Consequently, the court finds that inmate Meyers' disciplinary history should
be disclosed to claimant in redacted form with only the four incidents noted
above included and the remaining entries redacted. Additionally, the State
should disclose the four corresponding inmate misbehavior reports for each of
those incidents which may be redacted so as to delete the names and
identification numbers of other inmates.
3. Inmate Meyers' threat of inmate Hobbs and/or any other persons
Finally, this court directed "[t]he State to produce for an in camera review,
the inmate misbehavior reports pertaining to inmate Meyers' threat of inmate
Hobbs and/or any other persons." (Seager, p 3). Although the State did
not submit any misbehavior reports involving inmate Meyers and inmate Hobbs, it
has submitted two sets of documents, namely a packet of documents relating to
inmate Meyer's administrative segregation hearing (seven pages), as well as the
transcript of the Tier 3 administrative segregation hearing (cover letter plus
five page transcript). In the first instance, the court notes that interspersed
throughout these two sets of documents are documents and references relating to
this claim since the administrative segregation order was apparently a result of
both this incident and the Hobbs' incident.
Generally, a review of these documents reveals that the incident involving
inmate Meyers and inmate Hobbs do not involve any violent conduct. As such, the
court finds that to the extent these documents relate to the Meyers-Hobbs
incident they are not material and relevant to this claim. With respect to
inmate Meyer's administrative segregation hearing packet, all but one page
relates to the Meyers-Hobbs incident and thus is not material and relevant
The page relating to this incident is a
form entitled "administrative segregation recommendation" (page 4) and has
already been produced by the State in a prior discovery response without any
. (Defendant's Reply to First Set of Discovery Demands filed
March 22, 2004, Exhibit C). In sum, the administrative segregation packet need
not be produced since the Meyers-Hobbs information is not material and relevant
to this incident and the "administrative segregation recommendation" form (page
4) has already been disclosed.
With respect to the transcript of inmate Meyers' administrative segregation
hearing, the court finds this transcript is material and relevant to the extent
it discusses this claim and should be disclosed, but finds that it should be
redacted to remove references to the Meyers-Hobbs incident. The court has
prepared a redacted version of the administrative segregation transcript and
will transmit the same to the State under separate cover upon the filing of this
Decision & Order for disclosure to claimant.
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, together with the court's
redacted version of the administrative segregation hearing transcript.
Accordingly, in view of the foregoing, it is ORDERED that claimant's motion,
No. M-70384, 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
Claim, filed June 6, 2003.
Verified Answer, filed July 10, 2003.
Claimant's Demand for Verified Bill of Particulars, filed February 27,
Claimant's First Set of Discovery Demands, filed February 27, 2004.
Defendant's Bill of Particulars, filed March 22, 2004.
Defendant's Reply to First Set of Discovery Demands, filed March 22,
Letter from Rory A. McMahon, Esq. to the Court, dated September 22, 2004, and
received September 23, 2004.
Letter from the Court to Mr. McMahon, dated September 27, 2004.
"Motion for Court to Compel Discovery Motion for Court to Conduct In Camera
Review of Inmate Fred Meyers Department of Corrections File", Motion No.
M-70384, of Rory A. McMahon, Esq., dated July 8, 2005, and filed July 11, 2005,
with attached exhibits.
Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated July 18,
2005, and filed July 21, 2005.
DECISION AND ORDER, Lebous, J., Claim No. 107835, Motion No. M-70384, filed
August 11, 2005.
Documents submitted to the court by the State for the court's in camera