New York State Court of Claims

New York State Court of Claims

LEWIS v. THE STATE OF NEW YORK, #2007-028-545, Claim No. 111590, Motion No. M-72819


Synopsis


Defendant’s incomplete statements regarding the existence of material contained in DOCS publications results in an interlocutory order directing further, and more complete, compliance with Claimant’s discovery demand.


Case Information

UID:
2007-028-545
Claimant(s):
JAMES LEWIS
Claimant short name:
LEWIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111590
Motion number(s):
M-72819
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
JAMES LEWIS, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Frederick H. McGown, III, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 6, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant’s motion for default judgment and an order imposing sanctions on Defendant for failure to comply with a prior order compelling discovery:

1. Notice of Motion and Supporting Affidavit of James Lewis, pro se, with annexed Exhibits;


2. Affirmation in Opposition of Frederick H. McGown, III, AAG., with annexed Affidavit of Donald Selsky and annexed Exhibit; and


3. Reply Affidavit of James Lewis, pro se, with annexed Exhibits.


Filed papers: Claim; Answer; Decision and Order, Claim No. 111590, Motion No. M-71746, filed October 27, 2006, Sise, P.J.


By a prior Decision and Order, this Court granted in part Claimant’s motion for an order compelling response to certain discovery demands and directed Defendant to, among other things, provide Claimant with “a copy of the policies and procedures relevant to Keeplock status at Coxsackie Correctional Facility.” Claimant has now moved for default judgment and the imposition of sanctions, contending that the discovery response he received in December 2006 was not in compliance with the Order, in that it consisted only of a copy of Directive No. 4933 which relates to keeplock in Special Housing Units rather than keeplock status in the general population. Claimant has attached to his motion papers one page of the Directive in question (Lewis Affidavit, Exhibit B), and the Court notes that one section, Section No. 301.6, is captioned “Keeplock admission”.[1] The provisions of this section make it clear that they apply to prisoners who are assigned to “keeplock status in a special housing unit” rather than keeplock status in general population.

In opposition to the motion, counsel for Defendant has provided the affidavit of Donald Selsky, Director of Special Housing for the Department of Correctional Services (DOCS). He states that there is “only limited mention of ‘keeplock’ in DOCS directives and communications.” In addition to Directive No. 4933, mentioned above, he references subdivision (f) of section 1704.6 of the Codes, Rules and Regulations for the Department of Correctional Services (7 NYCRR § 1704), which governs the number of showers inmates, including inmates in keeplock, are to receive. According to Selsky, “[t]hese are the references to keeplock with which I am familiar in the Regulations and directives of DOCS.” Claimant contends that this response is “disingenuous,” suggesting that there are provisions governing keeplock that are contained in the Policy and Procedures Manual of Coxsackie Correctional Facility.

There should be no reason to doubt the word of Mr. Selsky or defense counsel on matters such as this. In this instance, however, even minimal research reveals that there are numerous other references to keeplock (or “keep-lock” or “confinement to cell”) contained in DOCS regulations (see e.g. 7 NYCRR § 220.2 [visitation]; 7 NYCRR § 251-1.6 [when confinement can be ordered]; 7 NYCRR § 253.7 [disciplinary dispositions]; 7 NYCRR § 280.2 [merit time]; 7 NYCRR § 701.5 [inmate grievances]; 7 NYCRR § 720.8 [postage]; 7 NYCRR § 1900.4 [temporary release]; 7 NYCRR § 1901.2 [short-term temporary release]; 7 NYCRR § 2200.3 [presumptive release]). It may be that there are Directives other than Directive No. 4933 that relate to keeplock status. Moreover, the Rules and Regulations of the New York State Commission of Correction, a “watchdog” agency over State and local prisons and jails within the Executive Department, requires that each correctional facility in the State prison system maintain the following:
  1. one or more policy and procedures manuals which shall contain all current written policies and procedures issued or promulgated by or under the direct or designated authority of the commissioner, and
  1. one or more facility operations manuals which shall contain all current written policies and procedures which address issues specific to that facility which are not addressed within departmental policies and procedures.

(9 NYCRR § 7605.3) As Claimant suggests, there may be policies or procedures relating to keeplock in such manuals.

In order to assure Claimant, and the Court, that Defendant has produced all of the information to which Claimant is entitled, specifically “any/all policies or procedures of Coxsackie Correctional Facility regarding the securing of Keeplock status inmates that was effective until April 2005,” the Court directs Defendant to provide to Claimant, with a copy to the Court, the following:
  1. A list of all regulations (NYCRR) that reference keeplock (or “keep-lock” or “confinement to cell”), with copies of those that relate to or govern the securing of keeplock status inmates either at all prisons or specifically at Coxsackie Correctional Facility.[2]
  2. A list of all Directives that reference keeplock (or “keep-lock” or “confinement to cell”), with copies of those that relate to or govern the securing of keeplock status inmates either at all prisons or specifically at Coxsackie Correctional Facility.
  3. A listing of any portion (other than those duplicative of the regulations or directives listed above) of the policy and procedure manual applicable to all prisons within DOCS, with copies of those that relate to or govern the securing of keeplock status inmates; and
  4. A listing of any portion (other than those duplicative of the regulations or directives listed above) of the policy and procedure manual applicable to Coxsackie Correctional Facility, with copies of those that relate to or govern the securing of keeplock status inmates.
In the event that Defendant takes the position that disclosure of any of the regulations, Directives, or parts of the policy and procedures manuals that should be copied and provided to Claimant represents a threat to the safety and security of a prison, its employees, or the inmates housed therein, it may be omitted from the material sent to Claimant but two copies should be provided to the Court for in camera inspection. One of the copies should be unaltered and the second copy should be redacted, in whole or in part, in the fashion that Defendant would like to see the material redacted so as to protect such interests. Material not submitted for in camera inspection is to be provided to Claimant, with a copy to the Court, within sixty (60) days of the date on which this Decision and Order is filed. Claimant will then have twenty (20) days in which to present, in writing, any objections he may have to the information so provided.

The return date of this motion will be adjourned to a date 80 days after the date on which this Decision and Order is filed. In the event that none of the material is submitted for in camera inspection and Claimant has raised no objection within the 20-day period, this motion shall be closed without any further judicial instruction.

Claimant’s motion is GRANTED in part and the return date is adjourned to 80 days after this Decision and Order is filed.





July 6, 2007
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1]. The Court also notes that this same provision is contained in a regulation, 7 NYCRR §301.6.
[2]. Normally, the Court would not direct the production of items that are available as a matter of public record (see Penn Palace Operating, Inc. v Two Penn Plaza Associates, 215 AD2d 231 [1st Dept 1995]), but in this instance Defendant has introduced the issue of all of DOCS “publications” relating to keeplock.