New York State Court of Claims

New York State Court of Claims

SPIRLES v. THE STATE OF NEW YORK, #2008-044-508, Claim No. 114139, Motion Nos. M-74110, M-74163, M-74234, M-74312


Synopsis


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.

Case Information

UID:
2008-044-508
Claimant(s):
WILLIE SPIRLES
Claimant short name:
SPIRLES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114139
Motion number(s):
M-74110, M-74163, M-74234, M-74312
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
WILLIE SPIRLES, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 6, 2008
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 affirmative defenses.

Claimant has filed numerous motions in this action, four of which will be addressed in this Decision and Order.[1] Motion 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, 2007.[2] 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 replies.
MOTION NO. M-74110
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 [1992]). 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 [1974]). 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 claim.[3] 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 New York, Ct Cl, May 6, 2002, Lebous, J., Claim No. 101474, Motion No.

M-63202 [UID # 2002-019-530]).[4]

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, 2007.[5]
MOTION NO. M-74163
In Motion No. M-74163, claimant moves to compel defendant to respond to his “demand for admission.”[6] Claimant 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 [1970]). 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 litigation.[7] 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.
MOTION NO. M-74234
Claimant moves, in Motion No. M-74234, to compel defendant to respond to another “demand for addmission [sic].”[8] 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 CPLR 3124). 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.[9] 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 is denied.
MOTION NO. M-74312
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.

February 6, 2008
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following documents were read on claimant’s motions:

Motion No. M-74110
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.

Motion No. M-74163
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.

Motion No. M-74234
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.

Motion No. M-74312
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 attached exhibits.

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.


[1]. 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 # 2007-044-593]).
[2]. 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.
[3]. 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.
[4]. 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 also 7 NYCRR 5.35).
[5]. 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 defendant’s response.
[6]. 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.
[7]. 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.
[8]. This demand is also essentially a notice to admit and will be referred to as such (see n 6, supra).
[9]. 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.)