New York State Court of Claims

New York State Court of Claims

STORMS v. THE STATE OF NEW YORK, #2006-030-501, Claim Nos. 109436, 109539, Motion No. M-71052


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109436, 109539
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
January 5, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 7, were read and considered on Claimant's motion

for the issuance of a subpoena duces tecum directed to the Office of the Inspector General:

1,2 Motion for Subpoena Duces Tecum, Affidavit in Support by Nathaniel Storms, Claimant and proposed subpoena

  1. Affirmation of Elyse J. Angelico, Assistant Attorney General with attachments
4-7 Filed Papers: Claim Nos. 109436 and 109539, Answers

Nathaniel Storms alleges in Claim Number 109436 filed on June 4, 2004 that he was assaulted by correction officers on June 20, 2003 while an inmate at Sing Sing Correctional Facility (hereafter Sing Sing) and suffered serious injury, and asks for damages in the amount of $200,000 for past and future pain and suffering, $200,000 for future medical expenses, $200,000 for permanent disability, $200,000 for mental anguish and emotional stress; and $200,000 for punitive damages. He alleges the same assault in Claim Number 109539 filed on June 28, 2004, and adds that he was thereafter wrongfully confined on the basis of a false misbehavior report. Damages asserted in Claim Number 109539 include a demand for $100.00 per day for the ninety (90) days he was wrongfully confined in the Special Housing Unit (hereafter SHU), $100,000 for punitive damages and $108.00 for lost wages. In its respective Answers to the Claims, in addition to general denials, the Defendant asserts five affirmative defenses. Trial of both claims is scheduled for January 13, 2006 at Sing Sing.

Claimant asks that the Court execute a subpoena duces tecum to the Office of the Inspector General, directing production of the "entire investigative file . . . including: all photographs, statements, documents, notes, actions taken, decisions, determinations, Court findings and all other data and information regarding the assault on claimant dated June 20, 2003 . . . ." [Motion for Subpoena Duces Tecum]. Claimant indicates that the investigator's file is necessary, as it contains "the true facts, including, but not limited to color photographs of claimant after the assault, tapes and reports, testimonies and confessions of the officers involved wherein it is stated the violations of rules, regulations, codes policy and procedure of the Department of Correctional Services . . . as well as the laws of the State of New York . . . " occurred. [Affidavit in Support, ¶6]. Claimant writes that the file of Mark Miller, the investigator who wrote the report, "substantiates the above claims, and proves all allegation[s] alleged in the actions before this Court, which include the surrounding and assault of claimant by approximately seven (7) officers in an isolated area, the filing of false reports against claimant, perjury, and conspiracy to unlawfully confine claimant." [Ibid. ¶7].

In terms of what causes of action Claimant has alleged in his claims and needs to prove, there are essentially two. First, the allegation of excessive force or assault, and second the claim of wrongful confinement. The State may be liable for the use of excessive force by its employees under the concept of respondeat superior. See Jones v State of New York, 33 NY2d 275, 279 (1973) and Court of Claims Act §8. To establish whether the State should be held liable because its agents used excessive physical force to restrain Claimant, he will have to establish that the use of force by the correction officers was unprovoked and unreasonably applied.

Use of physical force against an inmate is governed by statute, regulation, and the attendant case law. § 137(5) N.Y. Correction Law (McKinney's 2001). Once an officer determines that physical force must be used, ". . . only such degree of force as is reasonably required shall be used." 7 NYCRR § 251-1.2(b). To assess whether force was necessary, or whether the particular degree of force used was reasonable, a Court needs to examine all circumstances surrounding the event, and what situation the officers faced. Credibility of the various participants is often crucial to the result.

To establish a prima facie case of wrongful confinement, a "species" of the tort of false imprisonment, [Gittens v State of New York, 132 Misc 2d 399, 407 (Ct Cl 1986), a claimant must show ". . . (1) the defendant intended to confine him, (2) the . . . [claimant] was conscious of the confinement, (3) the . . . [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged . . . " Broughton v State of New York, 37 NY2d 451, 456 (1975).

The quasi-judicial acts of correctional employees taken in furtherance of authorized disciplinary measures are entitled to absolute immunity. Arteaga v State of New York, 72 NY2d 212, 219-220 (1988). If officers act inconsistently with their own rules and regulations, or otherwise act outside the sphere of privileged actions, liability may attach. The fact that charges are ultimately dismissed does not give rise to a cognizable cause of action when there is no evidence defendant acted inconsistently with its own rules and regulations. Arteaga v State of New York, supra; Holloway v State of New York, 285 AD2d 765 (3d Dept 2001); cf Gittens v State of New York, supra.

The Defendant opposes Claimant's broad application, indicating that production of the requested documents would adversely impact what are meant to be confidential investigations by the Office of the Inspector General. The Defendant has, however, provided the Court with a copy of the Investigative Report containing a summary of the investigation - and the conclusions drawn - for in camera inspection.

The Court has reviewed the report provided, as well as Defendant's objections, and the relevant authority for ascertaining whether any portion of the Inspector General's report may be disclosed to Claimant, an inmate still within the custody of the New York State Department of Correctional Services (hereafter DOCS). See Cirale v 80 Pine St. Corp., 35 NY2d 113, 117 (1974); Lowrance v State of New York, 185 AD2d 268 (2d Dept 1992); Tyree v State of New York, Claim No. 101474, Motion No. M-63202, UID #2002-019-530 (Lebous, J., May 6, 2002); Lamm v State of New York, Claim No. 99321, Motion No. M-62596, UID #2001-018-87 (Fitzpatrick, J., May 31, 2001); Lamm v State of New York, Claim No. 99321, Motion No. M-62596, UID #2002-018-195 (Fitzpatrick, J., November 26, 2002); Leonido v State of New York, Claim No. 99960, Motion No. M-59804, UID #2000-017-613 (O'Rourke, J., February 2, 2001); La Valle v State of New York, 185 Misc 2d 699 (Sup Ct, Dutchess County, 2000). The report contains 4 pages, and includes reports of interviews with witnesses, the investigator's analysis of the interviews and the other evidence presented, including what would appear to be photographs and medical records available from other sources, and the investigator's conclusion and recommendations.

In accordance with Lowrance v State of New York, supra at 268, 269, an inmate in a correctional facility is not generally entitled to disclosure of a report developed by the Inspector General's Office in connection with an investigation of allegations against correction officers pursuant to the public interest privilege, ". . . ‘applicable when the public interest would be harmed if the material were to lose its cloak of confidentiality.' (Cirale v 80 Pine St. Corp., [35 NY2d 113, 117 (1974)])." The privilege is a qualified one, applicable depending on whether ". . . the State's interest in maintaining the integrity of its internal investigations and protecting the confidentiality of sources who provide sensitive information within a prison context, outweighs any interest of the claimant in seeking access to the file (Cirale v 80 Pine St. Corp., supra at 117)."

Defendant has specifically requested that the "statements made by personnel and other inmates should not be made known to Claimant, as it might compromise such personnel's safety and security. Also, since claimant is pro se, there is no assurance that the report would not get into the hands of other inmates." [Affirmation by Elyse Angelico, Assistant Attorney General, ¶7].

In this case, the Inspector General's report contains reference to numerous documents available from other sources - Claimant's ambulatory health record, for example, and internal memoranda such as report of inmate injury forms - that need not be discussed at length here. Lowrance v State of New York, supra at 269, specifically stated that the claimant therein was not entitled to the contents of the Inspector General's file, including ". . . several interviews with Correction Officers and inmates, together with notes, conclusions and the recommendations of the investigator." It is true, that most of the individuals interviewed by the Inspector General are known to Claimant, in that they are named in his Claims or have somehow otherwise come to his knowledge based upon statements made in his papers. Nonetheless, the Court finds that the controlling precedent as stated in Lowrance v State of New York, supra under circumstances such as these is to prohibit such disclosure given the policy considerations behind the creation of the Office of the Inspector General, [see Executive Law §6; 9 NYCRR §§4.103 and 5.39; Lamm v State of New York, Claim No. 99321, Motion No. M-62596, UID #2001-018-87 (Fitzpatrick, J., May 31, 2001)[1]] as well as the security interests of a given correctional facility. With respect to reports of interviews and any transcripts of question and answer proceedings, these are the product of compulsion. The testimony is compelled with the understanding that the witness may be subject to discipline, but with the further understanding that statements made are otherwise not to be disclosed. [See generally Civil Service Law §§75, 76; and Article 33 of the Agreement between the Professional, Scientific and Technical Services Unit and Public Employees Federation (PEF) concerning "interrogation" of an employee.] If the results of such investigations were to be disclosed by a mere request - not supported by any showing of necessity - the chilling effect upon the willingness of both those under investigation and other witnesses to come forward and speak frankly to investigators would negate the purpose of such an internal investigation.

The Court is also compellingly aware that other decisions have allowed disclosure of portions of the Inspector General's file to inmates albeit in circumscribed fashion, and is guided accordingly. See e.g. Tyree v State of New York, supra; Lamm v State of New York, supra; Leonido v State of New York, supra. The public interest in preserving the confidentiality of investigations conducted by the Office of the Inspector General, as well as security concerns surrounding disclosure of information to individuals in the custody of DOCS, outweighs any entitlement Claimant may have to any wholesale production of the file under general principles of materiality and relevance.

But the interests of justice outweigh the State's stake in maintaining the integrity of its investigation, with regard to providing Claimant with access to at least a portion of the Inspector General's conclusions. Indeed, there is at least some directive in the Executive Order prescribing the duties of the Office of the Inspector General that it prepare and release reports of investigations to the public, with constraints meant to protect the confidentiality of witnesses. [See 9 NYCRR §5.39]. The Court finds that it is necessary that the Claimant be apprised with those parts of the report indicating that the allegations he made then, and that are the basis of the Claims for damages before this Court, have been found substantiated by the Inspector General.

Accordingly, today the Court has executed a subpoena duces tecum for production of the report by the Office of the Inspector General to the Court either on or before January 11, 2006 at the Court's chambers in White Plains, New York, or at the trial session to be held at Sing Sing on January 13, 2006, subject to redactions to be made by Defendant prior to the release of the report to the Claimant. The following redactions are to be made to the four (4) page report: on page one (1) of the report - commencing after the words "Investigative Report" that begins the first full paragraph - the two full paragraphs shall be redacted; all of page two (2) shall be redacted; on page three (3), the first 6 paragraphs shall be redacted. The remaining parts of page three (3), starting with the paragraph that begins with the words "Medical Documentation . . . ", shall remain on the copy provided to Claimant, as well as all of page four (4) except the last sentence on page four (4) commencing with the words "I recommend . . . "

All other materials sought are either not material or relevant to the prosecution of his claims, available elsewhere, or otherwise protected by privilege.

January 5, 2006
White Plains, New York

Judge of the Court of Claims

[1] Judge Fitzpatrick stated: "The purpose of the office, according to both executive orders, is to investigate complaints in an effort to prevent fraud, abuse, and corruption in State agencies, departments and divisions."