SPIRLES v. THE STATE OF NEW YORK, #2008-044-508, Claim No. 114139, Motion Nos.
M-74110, M-74163, M-74234, M-74312
Claimant entitled to pertinent portions of his medical record, and copies of his
disciplinary hearing tape and transcript, upon payment of copying charges.
Remaining portion of motion to compel held in abeyance pending completion of
Inspector General’s report concerning use of force incident, and in camera
review thereof. Motions to compel responses to notices to admit, and for
sanctions based upon spoliation of evidence, are denied.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
M-74110, M-74163, M-74234, M-74312
CATHERINE C. SCHAEWE
WILLIE SPIRLES, pro se
HON. ANDREW M. CUOMO, ATTORNEY
GENERALBY: Roberto Barbosa, Assistant Attorney General
February 6, 2008
See also (multicaptioned
Claimant, an inmate proceeding pro se, filed this claim (Claim No. 114139)
alleging that he was “intentionally injured” by correction officers
on April 21, 2007 while he was incarcerated at Elmira Correctional Facility
(Elmira). Defendant State of New York (defendant) answered and asserted several
Claimant has filed numerous motions in this action, four of which will be
addressed in this Decision and Order.
No. M-74110 seeks to compel defendant to disclose several documents. Defendant
opposes the motion. In Motion No. M-74163, claimant moves to compel defendant
to respond to his “demand for admission,” sworn to October 14,
Defendant opposes the motion. Claimant
replies. Claimant moves in Motion No. M-74234 to compel defendant to respond to
another “demand for addmission [sic],” sworn to October 9, 2007.
Defendant also opposes that motion. Claimant replies. Lastly, claimant moves
in Motion No. M-74312 for sanctions based upon defendant’s alleged
spoliation of evidence. Defendant opposes Motion No. M-74312 as well. Claimant
In Motion No. M-74110, claimant moves to compel defendant to disclose: 1) a
complaint that he made against Correction Officer (CO) Sharp; 2) his medical
records for an injury suffered in March 2007; 3) a disciplinary hearing tape and
written copy of that tape; 4) black and white photographs of his physical
examination after the alleged assault, as well as the alleged weapon; and 5) the
“key lock [sic]” shower log for April 21, 2007.
Claimant has failed to include a copy of his demand for disclosure with his
motion papers, and has also failed to file a copy of that demand with the Clerk
of the Court as required by the Uniform Rules for the Court of Claims (22 NYCRR)
§ 206.5. Further, counsel for defendant states that the Attorney
General’s Office has not received a demand for the five items allegedly
requested by claimant. Accordingly, Motion No. M-74110 is premature and could
be denied solely on that basis.
Nevertheless, counsel for defendant, Assistant Attorney General (AAG) Roberto
Barbosa, has apparently treated Motion No. M-74110 as a demand for disclosure
and has provided some of the items requested. Given claimant’s proclivity
for engaging in motion practice, and in the interest of judicial economy, the
Court will address the appropriateness of defendant’s responses. AAG
Barbosa states that he is unaware of any grievance filed against CO Sharp (and
has included a printout of claimant’s grievances). Counsel also
acknowledges that the Office of the Inspector General is conducting an
investigation concerning allegations made by claimant, but states that because
the investigation is ongoing, any report pertaining thereto is unavailable for
review at this time.
In general, 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 ). The public interest privilege "is 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
). The Court must weigh “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 file” (Lowrance
v State of New York, supra, at 269). Prior to determining whether claimant
should be provided with his requested discovery, the Court must conduct an in
camera review of the Inspector General’s report. Clearly, the Court
cannot do so until the investigation has been completed and a report issued.
Accordingly, claimant’s motion with respect to disclosure of the Inspector
General’s report is held in abeyance pending receipt of a copy of the
finalized report. Counsel for defendant is instructed to provide the Court with
a copy of the report for in camera review within 20 days of the issuance
thereof, or to advise the Court of the status of the investigation and report
within 60 days of the filing of the Decision and Order if the report has not
been issued by that time.
Claimant also seeks copies of his medical record which pertain to a neck injury
he asserts he suffered while he was playing basketball in March 2007. Defendant
objects to production of these documents, stating that there is no apparent
relationship between the injury suffered in March 2007 and the alleged incident
of April 21, 2007. Defendant previously provided copies of that portion of
claimant’s medical record concerning treatment for injuries received
during the incident which is the subject of this
A review of the entries in
claimant’s medical record for April 21, 2007 reveals that his complaint
specifically pertained to neck pain. Contrary to defendant’s argument, a
previous neck injury suffered in March 2007 might indeed be relevant to the
issue of damages in this claim for assault (excessive force) which allegedly
caused neck pain on April 21, 2007. Consequently, defendant is directed to
provide claimant with the requested documents upon payment by claimant of
appropriate copying charges (see
7 NYCRR 5.35, 5.36; Tyree v State of
, Ct Cl, May 6, 2002, Lebous, J., Claim No. 101474, Motion No.
M-63202 [UID # 2002-019-530]).
With respect to claimant’s demand for various photographs, defendant has
provided photographs of claimant and his apparent injuries. AAG Barbosa further
represents in his response to this motion that a search was being conducted to
determine whether any photographs of the alleged weapon (a sock and bar of soap)
exist, and states that claimant and the Court will be notified of the results
“as soon as feasible.” Defendant’s response would normally be
acceptable on its face. However, in response to claimant's subsequent Motion
No. M-74312 for spoliation of evidence (see infra, at 8-9), AAG Barbosa
attaches as an exhibit a letter from a clerk in the Inmate Records Office at
Elmira dated November 1, 2007 which indicated that no such photographs exist.
Disturbingly, AAG Barbosa notified neither claimant nor the Court of this fact,
despite the pendency of this discovery motion, until his response papers to
Motion No. M-74312, filed with the Court approximately one and one-half months
after he was advised that the photographs did not exist.
Claimant also requests a copy of the hearing tape and written copy (transcript)
of said hearing tape. Defendant objects to this request as being vague.
Although claimant has neither set forth the date nor subject matter of the
requested hearing, it is readily apparent from his affidavit submitted in
support of Motion No. M-74312 (see infra), that he is seeking the tape
and transcript of the disciplinary hearing pertaining to the April 21, 2007
incident which is the subject of this claim. Accordingly, defendant is directed
to respond to the demand for said disciplinary hearing.
In conclusion, defendant is directed to provide copies of that portion of
claimant’s medical record concerning a neck injury allegedly suffered
during a basketball game in March 2007, as well as the tape and transcript for
his disciplinary hearing concerning the incident of April 21,
In Motion No. M-74163, claimant moves to compel defendant to respond to his
“demand for admission.”
has failed to include a copy of the notice to admit with his motion papers, and
has also failed to file a copy of that document with the Clerk of the Court as
required by the Rules of the Court of Claims (22 NYCRR) § 206.5.
Nevertheless, defendant has included a copy of said notice, and the Court will
address the merits of the motion.
A motion to compel is not available with respect to notices to admit (CPLR
3124). A party's failure to respond at all generally is deemed an admission
(Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C:3123:5,
at 402), and the facts set forth in such notice will be deemed as true
(Carlson v Travelers Ins. Co.,
35 AD2d 351 ). However, in this
case, defendant has refused to respond on the basis that the demands are not
proper because they seek admission of an ultimate issue in the
Although it would clearly have
been more prudent for defendant to challenge the validity of the notice to admit
by seeking a protective order, rather than relying on its alleged
unreasonableness (see generally
Siegel, NY Prac § 364, at 603 [4th
ed]), the Court has reviewed the notice to admit and finds defendant’s
argument persuasive. The notice is comprised of only two questions, summarized
as follows: 1) is it true that claimant was assigned a psychiatrist to help him
overcome the trauma that resulted from CO Sharp touching him in an
“improper way,” and 2) is it true that claimant was given
psychiatric medication because CO Sharp touched him in the “wrong
way.” Both questions concern an ultimate issue in this litigation, that
is, whether CO Sharp had inappropriate contact with claimant. Accordingly,
claimant’s Motion No. M-74163 is denied.
Claimant moves, in Motion No. M-74234, to compel defendant to respond to
another “demand for addmission
As with Motion No. M-74163,
claimant has failed both to include a copy of this notice to admit with these
motion papers and to file a copy with the Clerk of the Court (see supra,
at 6). Again, because defendant has included the relevant document in its
opposition papers, the Court will address the merits of the motion.
As set forth above, a motion to compel is not available as a remedy for a
party’s failure to respond to a notice to admit (see
Motion No. M-74234 therefore could be denied solely on that basis. However,
defendant has objected to the notice to admit, arguing that it is improper
because it was addressed to a person who is not a party to the action. In his
notice to admit, claimant poses several questions to one Cathy Norgren,
presumably a nurse at Elmira, each of which concerns entries that she made in
his medical record after an examination on April 21, 2007. In his affidavit in
support of this motion, claimant states that it is his intention to call Ms.
Norgren as a witness at trial both to authenticate the medical record and to
testify that there were no marks on his hand.
Claimant states that the purpose of the notice to admit is to establish the
authenticity of the medical record. AAG Barbosa, in his affirmation in
opposition to this motion, acknowledges that defendant provided the
documentation and that it will not contest the accuracy or veracity of said
document. It is apparent that the notice to admit, had it properly been
addressed to defendant, sought merely to have defendant admit the authenticity
of claimant’s medical record. Because the authenticity of the medical
record has now been admitted by defendant, claimant’s Motion No. M-74234
In Motion No. M-74312, claimant moves for an order for sanctions for spoliation
of evidence pursuant to CPLR 3126, arguing that defendant’s refusal to
supply a photograph of the alleged weapon (a bar of soap in a sock) was wilful.
Claimant asserts that defendant’s failure to produce either the photograph
or the alleged weapon itself constitutes spoliation of evidence, and that
without such evidence, defendant cannot justify the force used against claimant.
Conversely, defendant contends that it has neither violated a court order for
discovery nor wilfully failed to disclose the requested information, since
defendant was conducting an inquiry into whether any photographs existed.
As defendant correctly notes, a decision had not been issued in
claimant’s Motion No.
M-74110 at the time defendant's response papers were filed regarding this
motion, and defendant therefore is not in violation of any court order to
produce photographs of the alleged weapon. Furthermore, defendant was
apparently undertaking an inquiry as to whether such photographs existed, and
thus did not wilfully fail to comply with claimant’s discovery request,
although defendant's counsel was clearly dilatory in advising that no such
photographs existed. Accordingly, sanctions under CPLR 3126 (which can include
striking the answer and granting judgment in the claimant’s favor) are not
appropriate in this matter.
Claimant’s remaining argument is also without merit. Notwithstanding the
lack of either the physical weapon itself or a photograph of said weapon,
testimony from the correction officers involved (if found credible by the Court)
may be sufficient to establish both the existence of a weapon and
claimant’s use thereof, thus potentially justifying the officers’
use of force against him. Motion No. M-74312 is denied in its entirety.
In conclusion, Motion No. M-74110 is granted to the extent that defendant is
directed to provide claimant with that portion of his medical record pertaining
to a neck injury received in March 2007, and to provide him with copies of his
disciplinary hearing tape and transcript concerning the incident on April 21,
2007, upon payment by claimant of appropriate copying charges. The remaining
portion of that motion is held in abeyance pending completion of the Inspector
General’s report concerning claimant’s complaint related to the use
of force on April 21, 2007, and this Court’s in camera review thereof.
Motion Nos. M-74163, M-74234, and M-74312 are denied in their entirety.
Binghamton, New York
HON. CATHERINE C. SCHAEWE
Judge of the
Court of Claims
The following documents were read on claimant’s motions:
1) Notice of Motion filed on October 12, 2007; Affidavit of Willie Spirles
sworn to on October 9, 2007.
2) Affirmation in Opposition of Roberto Barbosa, AAG, dated November 5, 2007,
and attached Exhibits A through E.
3) Motion to Compel filed on November 5, 2007; Affidavit of Willie Spirles
sworn to on November 1, 2007.
4) Affirmation in Opposition of Roberto Barbosa, AAG, dated November 9, 2007,
and attached Exhibits A through C.
5) Affidavit in Reply of Willie Spirles sworn to on November 15, 2007.
6) Motion to Compel filed on November 13, 2007; Affidavit of Willie Spirles
sworn to on November 6, 2007.
7) Affirmation in Opposition of Roberto Barbosa, AAG, dated November 26, 2007,
and attached Exhibits A through D.
8) Affidavit in Reply of Willie Spirles sworn to on November 27, 2007.
9) Motion for Sanction [sic] filed on December 7, 2007; Affidavit of Willie
Spirles sworn to on December 4, 2007.
10) Affirmation in Opposition of Roberto Barbosa, AAG, dated December 17, 2007,
and attached Exhibit A.
11) Affidavit in Response of Willie Spirles sworn to on December 27, 2007, and
Filed papers: Claim filed on August 24, 2007; Verified Answer filed on
September 17, 2007; Amended Claim filed on September 27, 2007; Verified Answer
to Amended Claim filed on October 25, 2007.
. Claimant’s previous motions
pertaining to this claim - for assignment of counsel (Motion No. M-73986), to
amend the claim (Motion No. M-73985) and to compel disclosure (Motion No.
M-74021) - were denied (Spirles v State of New York,
Ct Cl, Dec. 3, 2007,
Schaewe, J., Claim No. 114139, Motion Nos. M-73985, M-73986, M-74021 [UID #
. In the alternative, claimant essentially
seeks an interlocutory judgment of liability based upon defendant’s
failure to respond. In light of the Court's denial of claimant's motion, this
request for relief need not be addressed.
. The copies were provided by defendant in
a response to claimant’s request for production of documents, filed with
the Clerk of the Court on October 1, 2007.
. As counsel for defendant correctly notes,
claimant may also inspect his medical record at his current facility by
complying with the procedure set forth in the Department of Correctional
Services Policy Number 4.10 (Affirmation of Roberto Barbosa, AAG, in opposition
to claimant’s motion to compel [Motion No. M-74110], exhibit D) (see
7 NYCRR 5.35).
. Since AAG Barbosa did not address
claimant’s request for a copy of the “key lock” shower log for
April 21, 2007 in this motion, the Court cannot comment on the adequacy of
. Although claimant has entitled the document
“Admit or Denide [sic] Pursuant to CPLR 3123,” it is essentially a
notice to admit and will be referred to as such herein.
. Defendant also objected to the notice as it
was addressed to an unnamed person who is not a party to the action. In light
of the Court’s ruling, this objection need not be addressed.
. This demand is also essentially a notice to
admit and will be referred to as such (see n 6, supra
. It is claimant’s contention that the
absence of any marks on his hand will support an inference that he did not hit
any of the correction officers. (Of course, this argument seems to require an
interesting leap in logic, as claimant himself alleges that the officers claim
that the force used on claimant was due to his assault upon them by swinging a
bar of soap in a sock.)