New York State Court of Claims

New York State Court of Claims

LEWIS v. THE STATE OF NEW YORK, #2008-015-058, Claim No. 111590, Motion No. M-72819


Synopsis


Motion for default based upon non-compliance with prior order compelling discovery was denied.

Case Information

UID:
2008-015-058
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:
FRANCIS T. COLLINS
Claimant’s attorney:
James Lewis, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Frederick H. McGown, III, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 28, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The claim herein arose from an inmate-on-inmate assault that occurred at Coxsackie Correctional Facility on March 28, 2005. Claimant alleges that prior to the alleged assault he informed correction officers of threats against his safety and requested that he be moved to a housing unit in which all inmates are keep-locked. The instant motion was transferred to this Court's individual assignment calendar by Order dated June 12, 2008. By a prior Decision and Order (Motion No. M-71746) Presiding Judge Richard E. Sise granted in part claimant’s motion for an order compelling a response to certain discovery demands. Defendant was directed to provide to claimant “a copy of the policies and procedures relevant to Keeplock status at Coxsackie Correctional Facility.” The defendant was also directed to provide the following:
"[T]wo copies of inmate Powell's disciplinary history and disciplinary hearing history including violent misbehavior reports, if any, to the Court for in camera review. One of these copies is to be unredacted, while the second copy is to be redacted in a manner that the State believes presents information relevant to this claim while protecting privilege or irrelevant information from disclosure. These records are to be provided to the Court within sixty (60) days of the date this Decision and Order is filed-stamped. The Court will then determine whether and how any portion of the documents is to be provided to Claimant."
Defendant responded by providing claimant with a copy of Directive No. 4933, which relates to keeplock in Special Housing Units (SHUs) and the affidavit of Donald Selsky, Director of Special Housing for the Department of Correctional Services (DOCS), in which Mr. Selsky stated that there was “only limited mention of ‘keeplock’ in DOCS directives and communications", referencing both Directive No. 4933 and a regulation (7 NYCRR § 1704.6 [f]) which governs the number of showers inmates, including inmates in keeplock, are to receive. Inmate Powell's disciplinary history and disciplinary hearing history were not provided to the Court for in camera review.

Claimant considered defendant's responses to be insufficient and filed the instant motion (Motion No. M-72819), this time seeking a default judgment based on the defendant’s alleged noncompliance with the Court's prior order compelling discovery. In a decision dated July 6, 2007 Judge Sise adjourned the motion noting that his own research revealed the existence of more regulations, and thus the likely existence of more directives, relating to keeplock status. Consequently, an order was issued directing defendant to provide claimant 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. 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.[1]
Counsel for defendant has now provided to claimant and to the Court a thick stack of documents including: sixteen Directives in which there is some mention of keeplock; sixteen regulations, with supporting information, in which keeplock is mentioned; copies of three Security Material Directives; an explanation of the limits on DOCS ability to conduct a text search of Security Directives, and Chapter 10.1 of the Coxsackie Correctional Facility Policy and Procedure Manual, described as the sole document relative to the securing of keeplock status inmates (see Exhibit E of defendant's discovery response, Affidavit of George A. Glassanos and attachments 1, 2, and 3).
Claimant takes the position that the defendant has failed to comply with the Court’s directive in that the information provided relates only to SHU inmates, not the keeplock status of inmates in general population. The Court has reviewed the voluminous material provided by defendant and is satisfied that there has been full disclosure of all information required in the prior Decision and Order of Judge Sise. It appears the defendant has made a thorough search for information relating in any way to keeplock status whether in the general population, SHU or elsewhere. The steps taken by defendant to locate all such documents are reasonable and logical, and claimant has presented no cogent reason for concluding that the discovery response is insufficient or incomplete.

However, the defendant has failed, without explanation, to provide to the Court for in camera inspection "two copies of inmate Powell's disciplinary history and disciplinary hearing history, including violent misbehavior reports" in accordance with Judge Sise's prior decision and order (Lewis v State of New York, UID # 2006-028-594, Claim No. 111590 [Ct Cl, October 17, 2006] Sise, P.J.). Accordingly, the defendant is directed to provide these documents to the Court within ten days of the date this Decision and Order is filed.

Claimant's motion is denied except to the extent indicated.



July 28, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:

1. Notice of Motion (“Notice of Motion for Default Judgment”) and Supporting Affidavit of James Lewis, with annexed Exhibits;

2. Affirmation in Opposition (“Affirmation in Opposition to Motion for Sanctions”) of Frederick H. McGown, III, AAG, with annexed Affidavit of Donald Selsky and Exhibit;

3. Reply Affidavit (“Reply to opposition to Default Judgment Motion”) of James Lewis, pro se, with annexed Exhibits;

4. Interlocutory Decision and Order, Lewis v State of New York, UID #2007-028-545, Claim No. 111590, Motion No. M-72819 [Ct Cl July 6, 2007], Sise, P.J.;

5. Letter and documentary submission in response to Decision and Order of Frederick H. McGown, III, AAG;

6. Reply Affidavit (“Objections to Defendant’s Compliance to the Court’s Decision and Order”), of James Lewis, pro se;

7. Decision and Order, Lewis v State of New York, UID #2006-028-594, Claim No. 111590, Motion No. M-71746 [Ct Cl Oct 17, 2006], Sise, P.J.



[1].Provision was also made for in camera inspection of any portion of the records that the defendant viewed as representing a threat to safety and security.