New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2008-015-049, Claim No. 114633, Motion No. M-74688


Pro se inmate's motion to compel discovery was denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 13, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves to compel compliance with a demand for discovery. The claim allegedly accrued on September 25, 2007 at Great Meadow Correctional Facility and arises from the following alleged acts or omissions of the defendant:
I am charging the ( D.O.C.) with the deliberate indifference to the training, supervising, and discipling of employee's of (D.O.C.). As well as creating a policy and custom that is enforced as a law, when in fact, (volative) of established law and due process (equal protections) by systemically, methodically structured, planned and designed (beatings) of Black inmates for no penological reason or justification. Then putting into (SHU) for psychological torment and torture.

I am charging (C.O. Rositi) with the deliberate indifference to the safety, health, and well-being of inmate Pettus 03R-3597, as well as assault excessive use of force and battery by smacking plaintiff in the face three (3) times, then pushing and smashing against the wall while calling plaintiff "Nigger Trash" for no penological reason or justification. It was done because plaintiff is a black inmate.
Claimant served the defendant with a demand for discovery on or about February 1, 2008. Although the discovery demand which claimant submitted to the Court contains only four numbered demands, the demand served on the defendant (defendant’s Exhibit A) interposed the following five demands:
1. The pictures taken by medical staff concerning assault by C.O. Rosoti on 9-25-07 against inmate Pettus-03R-3597.

2. [All] and [any] complaints against C.O. Rosoti concerning assaults and battery on other inmates.

3. [All] and [any] investigative reports, which would include conclusions, memos, U.I. reports etc... etc...

4. Grievant’s complaints, etc... etc... submitted by plaintiff.

5. Inspector General’s report, conclusion and complete investigation.
In opposition to the claimant’s motion, the defendant provided responses to demands numbered "1", "3" and "4" and objected to demand numbered “2" on the ground that it was protected from disclosure under Civil Rights Law § 50-a. The defendant neither objected nor responded to demand numbered “5".

Defendant rightfully objected to the claimant’s second demand. Civil Rights Law § 50-a states in pertinent part the following:
1. All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof . . . shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, . . . correction officer. . . except as may be mandated by lawful court order.

2. Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review.

3. If, after such hearing, the judge concludes there is a sufficient basis he shall sign an order requiring that the personnel records in question be sealed and sent directly to him. He shall then review the file and make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting.
Claimant’s second enumerated demand for “[all] and [any] complaints against C.O. Rosoti concerning assaults and battery on other inmates ” is overly broad (see MacKinnon v MacKinnon, 245 AD2d 690 [1997]) and includes material which constitute “personnel records, used to evaluate performance toward continued employment or promotion” (Civil Rights Law § 50-a [1]; Matter of Prisoners’ Legal Servs. of N.Y. v New York State Dept. of Correctional Servs., 73 NY2d 26 [1988] [holding that inmate grievances against state correction officers and the administrative responses thereto constitute “personnel records” and are therefore exempt from disclosure under the Freedom of Information Law (FOIL) pursuant to Civil Rights Law § 50-a [1] ]; cf. Matter of Farbman & Sons v New York City Health & Hosps. Corp., 62 NY2d 75 [1984] [noting that unlike a request under FOIL, a discovery demand under article 31 of the CPLR must be material and necessary to the prosecution or the defense of an action]). Absent a legitimate need for the records, the disclosure of an officer's personnel records is prohibited. "Thus, the initial burden is on the party seeking the subject records to demonstrate 'in good faith, "some factual predicate" warranting the intrusion into the personnel records' " (Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834 [2001], quoting Taran v State of New York, 140 AD2d 429, 432 [1988]; see also People v Gissendanner, 48 NY2d 543, 549-550 [1979]). In other words, the party seeking the records must demonstrate a reasonable likelihood that the file will contain relevant material and that "the quest for its contents is not merely a desperate grasping at a straw" (People v Gissendanner, supra, 48 NY2d at 550). No such showing has been made here (cf. Sabilia v State of New York,14 Misc 3d 1228[A] [2007]). Rather, the claimant has completely failed to demonstrate that the discovery sought is reasonably calculated to lead to the discovery of information bearing upon his claim, which is essentially one for excessive force. Any complaints by other inmates concerning an assault and battery has little, if any, bearing on whether excessive force was used against the claimant.

Although the defendant failed to object to demand numbered "5" requesting the “Inspector General’s Report, conclusion and complete investigation” this demand appears to seek information which is not limited to the incident of September 25, 2007 thereby rendering it palpably improper (Velez v South Nine Realty Corp., 32 AD3d 1017 [2006]). Additionally, even if properly drafted such discovery demands are often held to be privileged where they relate to the fundamental mission of the security of a prison (Turner v State of New York, Ct Cl, February 27, 2007 [Claim No. 108423, Motion No. M-72434, UID # 2007-039-008] Ferreira, J. unreported[1]; Shantelle S. v State of New York,11 Misc 3d 1088[A][2006]; Tyree v State of New York, Ct Cl, May 6, 2002 [Claim No. 101474, Motion No. M-63202, UID # 2002-019-530] Lebous, J., unreported; Brown v State of New York, Ct Cl, November 5, 2001 [Claim No. 103284, Motion No. M-63858, UID # 2001-015-200] Collins, J., unreported).

In an unsworn letter submitted in reply to the defendant’s opposition to the motion claimant takes issue with defendant’s response to demand number "1" requesting photographs taken by the medical staff. Claimant states that “I toke [sic] pictures on September 28, 2007. Alternatively supply me the (Report) and (investigation) which was done by a SGT.” Defendant’s response to demand numbered "1" indicated that "there were no photographs taken of claimant pertaining to the alleged incident of September 25, 2007." This response is adequate. Additionally, in response to demand numbered "3" the defendant indicated that "there are no Unusual Incident Reports or Use of Force Reports concerning the incident that is the subject of this lawsuit on file at Great Meadow Correctional Facility." The defendant has therefore adequately responded to the claimant’s demands pertaining to the incident which is the subject of this action.

Based on the foregoing, the claimant's motion is denied.

June 13, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 13, 2008;
  1. "Affidavit/Affirmation" of James Pettus, undated;
  2. Affirmation of Glenn C. King dated April 10, 2008 with exhibits;
  3. Letter "affidavit/affirmation" of James Pettus dated April 14, 2008;
  4. Letter "affidavit/affirmation" of James Pettus dated April 14, 2008.

[1]. Unreported decisions from the Court of Claims are available via the internet at http//