PETTUS v. THE STATE OF NEW YORK, #2007-044-581, Claim No. 112504, Motion Nos.
M-73404, M-73624, M-73626, CM-73630
Inmate claimant's motion to compel criminal histories and complaints pertaining
to five correction officers who allegedly assaulted him was denied, and
cross-motion for protective order granted, as such documents are generally
exempt from disclosure and claimant failed to provide any showing of facts which
would lead to Court review for possible production of same. Claimant's motion
for assignment of counsel and speedy jury trial denied, and claimant cautioned
that his conduct in making repetitive motions for identical relief previously
denied by the Court could lead to sanctions for frivolous conduct in the
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
M-73404, M-73624, M-73626
CATHERINE C. SCHAEWE
JAMES PETTUS, pro se
HON. ANDREW M. CUOMO, ATTORNEY
GENERALBY: Roberto Barbosa, Assistant Attorney General
November 7, 2007
See also (multicaptioned
Claimant, an inmate proceeding pro se, filed this claim against defendant State
of New York (defendant) alleging that in April 2005, unknown correction officers
used excessive force against him during a strip search, during which he incurred
personal injuries. Claimant has now made three motions (Motion Nos. M-73404,
M-73624, M-73626) in addition to those motions previously made pertaining to
this claim, and defendant has submitted a cross motion in response thereto
(Cross Motion No. CM-73630). In order to address the current motions and cross
motion, a brief history of this claim is in order. Claimant was allegedly
assaulted on April 8, 2005. In February 2006, claimant made a complaint to the
Inspector General concerning the alleged assault. That office investigated the
complaint and determined it to be unsubstantiated. Claimant then moved to
compel production of a copy of the Inspector General’s Report (the
Report). The Court conducted an in camera review and found that neither
confidential sources nor sensitive information were contained in the Report
(Pettus v State of New York, Ct Cl, Apr. 5, 2007, Schaewe, J., Claim No.
112504, Motion No. M-72488). The Court found that no public interest concerns
required maintaining the confidentiality of the Report, and ordered that
defendant release the Report to claimant after redacting the Inspector
General’s case number and the investigator’s name and signature
After requesting the Report, claimant demanded the photographs of five named
correction officers. Claimant neglected to supply an affidavit in support of
his motion, and was granted additional time in which to provide an affidavit
containing the basis for his request for photographs of those particular
individuals (Pettus v State of New York, Ct Cl, Mar. 26, 2007, Schaewe,
J., Claim No. 112504, Motion No. M-72699). The motion was thereafter denied
without further order of the Court, based upon claimant’s failure to
supply a supporting affidavit within the time granted (id.)
MOTION NO. M-73404 AND CROSS MOTION NO. CM-73630
In a discovery demand dated May 7, 2007, claimant next requested that defendant
produce: 1) “all” and “any” items attached or related to
the Inspector General’s investigation of the alleged assault, 2)
“all” and “any” “criminal-rap-sheet[s]” for
all persons working in the draft room on April 8, 2005, specifically five named
correction officers, and 3) “all” and “any” complaints
lodged against those five officers and contained in their “personal”
[sic] files. Claimant thereafter served two further demands upon defendant: the
“ ‘second’ [good-faith] attempt” dated May 14, 2007, and
the “ ‘third’ [good-faith] attempt” dated May 21, 2007,
both of which were identical in substance to the first
Claimant now moves to compel
defendant to produce the requested documents. Defendant opposes the motion and
cross-moves for a protective order.
CPLR 3120 (2) provides that the time within which to respond to a discovery
demand shall be no less than 20 days. Claimant’s affidavit was executed
on May 14, 2007, only seven days after his first demand, and at the same time
that he allegedly prepared the second “good-faith attempt.”
Further, although claimant’s notice of motion is dated May 28, 2007, it
was filed with the Clerk of the Court on May 16,
Because claimant moved to compel
defendant’s compliance with his discovery demands before the time to
respond had expired, claimant’s motion is premature, and accordingly is
While claimant’s motion to compel was pending, defendant responded to the
demands by refusing to provide the requested information. Defendant now
cross-moves for a protective order. Defendant refused to provide claimant with
any items attached to the Report or related to the Inspector General’s
investigation, arguing that such request was both overbroad and irrelevant, and
stated that defendant had previously provided the Report. Generally, reports
developed by the Inspector General’s Office during the course of an
investigation against correction officers are protected from disclosure pursuant
to the public interest privilege (Lowrance v State of New York, 185 AD2d
268 ). As previously set forth, in its earlier consideration of the issue
the Court weighed “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 [against the
claimant’s interest] in seeking access to [the Report]” (id.
at 269), and ordered disclosure of the Report in redacted form (Pettus v
State of New York, Ct Cl, Apr. 5, 2007, Schaewe, J., Claim No. 112504,
Motion No. M-72488, supra). Claimant is not entitled to any further
information concerning the underlying investigation.
Defendant declined to provide claimant with the
“criminal-rap-sheet[s]” for the five named correction officers,
stating that the demand was irrelevant. Criminal histories (“rap
sheets”) are generally exempt from disclosure (Matter of Woods v Kings
County Dist. Attorney’s Off., 234 AD2d 554 ), and claimant has
failed to advance any arguable relevance for disclosure of those documents
(see Collins v State of New York, Ct Cl., Sept. 7, 2004, Hudson, J.,
Claim No. 108990, Motion No. M-68360 [UID # 2004-034-564]).
Lastly, claimant’s request for “all” and “any”
complaints made against the five named corrections officers is improper.
Defendant’s response to claimant’s demand was again that the request
was irrelevant. The Court of Appeals, in Matter of Prisoners’ Legal
Servs. of N.Y. v New York State Dept. of Correctional Servs. (73 NY2d 26
), held that inmate grievances against State correction officers
constitute personnel records pursuant to Civil Rights Law § 50-a, and
therefore may not be disclosed without either written consent of the officers or
a court order. Moreover, Civil Rights Law § 50-a (2) provides that
“[n]o such [court] order shall issue without a clear showing of facts
sufficient to warrant the judge to request records for review.”
Claimant’s affidavit clearly fails to satisfy the requirements of the
statute. Accordingly, defendant’s request for a protective order with
respect to this request is also granted.
In conclusion, claimant’s Motion No. M-73404 is denied and
defendant’s Cross Motion No. CM-73630 is granted in its entirety.
In his notice of motion dated June 21, 2007, claimant requests that defendant
be compelled to interview the five correction officers working on April 8, 2005
to obtain affidavits which state that he was not assaulted in the draft room at
Elmira Correctional Facility on that date. Defendant opposes the motion.
Initially, claimant made no discovery demand prior to making this motion to
compel disclosure (see CPLR 3124). The motion is therefore premature and
could be denied solely on that basis. Further, to the extent that the motion
might be considered an initial request for discovery, it is not a statutorily
authorized device for obtaining disclosure (see CPLR 3102 [a]).
Accordingly, claimant’s Motion No. M-73624 to compel execution and
production of affidavits from the five correction officers is denied.
Finally, claimant moves for assignment of counsel and a speedy jury trial.
Defendant opposes the motion. It should first be noted that the Court
previously denied an earlier motion for a speedy jury trial in this claim
(Pettus v State of New York
, Ct Cl, May 15, 2007, Schaewe, J., Claim No.
112504, Motion No. M-72997). Further, the Court has denied another motion for a
speedy jury trial which also requested assignment of counsel (Pettus v State
of New York,
Ct Cl, June 4, 2007, Schaewe, J., Claim No. 112504, Motion Nos.
M-73126, M-73240 [UID #2007-044-547]). Presumably before he received the
Decision and Order on Motion Nos. M-73126 and M-73240 requesting assignment of
counsel and a speedy jury trial,
filed this motion on June 15, 2007 seeking the same
Claimant is now strongly warned that
the Court considers his conduct in making repetitive motions for the identical
relief previously denied to be potentially frivolous, and that sanctions for
similar motion practice may well be forthcoming in the future.
Claimant’s Motion No. M-73626 is denied in its entirety.
Binghamton, New York
HON. CATHERINE C. SCHAEWE
Judge of the
Court of Claims
The following papers were read on claimant’s motions and
defendant’s cross motion:
1) Notice of Motion (Motion No. M-73404) filed on May 16, 2007;
“Affidavit/Affirmation” of James Pettus sworn to on May 14, 2007,
and attached exhibits.
2) Defendant’s Notice of Cross Motion (Cross Motion No. CM-73630) filed
on June 28, 2007; Affirmation of Roberto Barbosa, AAG, dated June 26, 2007, and
attached Exhibits A through D.
3) Notice of Motion (Motion No. M-73624) filed on June 22, 2007;
“Affidavit/Affirmation” of James Pettus sworn to on June 21,
4) Affirmation in Opposition of Roberto Barbosa, AAG, dated July 23, 2007, and
attached Exhibits A and B.
5) Notice of Motion (Motion No. M-73626) filed on June 15, 2007;
“Affidavit/Affirmation” of James Pettus sworn to on April 17, 2007,
and attached exhibits.
6) Affirmation in Opposition of Roberto Barbosa, AAG, dated July 23, 2007, and
attached Exhibits A and B.
Filed papers: Claim filed on July 6, 2006; Verified Answer filed on July 21,
. Assistant Attorney General (AAG) Roberto
Barbosa affirms that the first and second demands were received on May 14, 2007
and the third demand was received on May 16, 2007 (Affirmation of Roberto
Barbosa, ¶¶ 5-6).
. Not surprisingly, claimant’s third
“good-faith attempt,” attached to the motion papers, was dated
approximately one week after the motion was filed.
. However, by the time he made this motion,
claimant had presumably received the Decision and Order pertaining to his
request for a speedy jury trial on Motion No. M-72997.
. Claimant also moved for assignment of
counsel and a speedy jury trial in additional, unrelated claims. Although those
motions were denied as moot, he was again instructed that there is no right to a
speedy trial in a civil action, that prisoner pro se claims are scheduled at the
discretion of the court, and that there is no right to a jury trial in the Court
of Claims (Pettus v State of New York,
Ct Cl, Nov. 2, 2007, Schaewe, J.,
Claim No. 113751, Motion Nos. M-73637, M-73639, Cross Motion No. CM-73675;
Pettus v State of New York,
Ct Cl, Nov. 1, 2007, Schaewe, J., Claim No.
113823, Motion Nos. M-73659, M-73674).