New York State Court of Claims

New York State Court of Claims

BERMAN v. THE STATE OF NEW YORK, #2008-044-514, Claim No. 113499, Motion No. M-74113


Claimant entitled to in camera review of fellow inmate’s disciplinary history, documentation concerning keeplock status, and Tier III disciplinary hearing transcript in inmate assault claim. Additional information is necessary for the Court to determine whether Civil Rights Law § 50 (a) applies to position of Inmate Grievance Program Supervisor.

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:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 22, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, commenced this action to recover for, among other things, personal injuries allegedly received when he was attacked by fellow inmate Irizarry[1] in a stairwell at Elmira Correctional Facility (Elmira). Defendant answered and asserted several affirmative defenses. Claimant now moves to compel discovery. Defendant opposes the motion.

Claimant argues that information which was sought in his “Request for Disclosure” (filed on July 16, 2007), which was not provided by defendant, is material and necessary for him to prosecute this action. Claimant requests that the Court compel responses to particular demands. Conversely, defendant asserts that it has properly responded to those demands, notwithstanding that some of them were objectionable as being overly broad or improper.

The only demands in issue are those that defendant has refused to respond to based upon a claim of confidentiality or privilege.[2] In Demand No. 1, claimant seeks the name and address of the inmate - also known as “Sarge” - who was housed in G Block, 4 Company, Cell 3 on April 26, 2006. Claimant asserts that as the result of Inmate Irizarry’s prior attack on Sarge, Irizarry was placed in keeplock and the State was therefore on notice of his propensity for violence.[3] Claimant contends that Sarge is a material and necessary witness. Despite claimant's contention, however, the Court is not persuaded at this time that the information requested about Sarge is vital to the claim. Inmate Irizarry's disciplinary history may well contain references to the alleged assault against Sarge and may establish Irizarry's alleged violent propensities without the necessity of revealing Sarge's name and address. In light of the Court's determination, infra, that an in camera review of Irizarry's disciplinary history is appropriate, claimant's request for this information is denied at this time, with leave to renew the request at a later date, if necessary.

Demand Nos. 4 and 5 are similar in nature and will be discussed together. Demand No. 4 sought any reports or documentation concerning the keeplock status of Inmate Irizarry and inmate Michael Simon. Demand No. 5 requested Inmate Irizarry’s disciplinary record. The information requested by claimant in these two demands is protected by Public Officers Law

§ 96. However, in an inmate-on-inmate assault, a claimant may need access to a fellow inmate’s disciplinary record in order to establish that defendant had notice that the assault was reasonably foreseeable (see Brier v State of New York, 95 AD2d 788 [1983]; Wilson v State of New York,

36 AD2d 559 [1971]). “Reports of similar assaultive or violent behavior, and the circumstances surrounding such conduct, are therefore generally discoverable” (Serrano v State of New York,

Ct Cl, Dec. 28, 2006, Midey, Jr., J., Claim No. 112135, Motion No. M-71889 [UID #2006-009-080]). Defendant is directed to provide a copy of Inmate Irizarry’s disciplinary history, as well as any documentation concerning his keeplock status as of April 26, 2006, to the Court for an in camera review.

However, claimant has not provided the Court with information concerning the involvement, if any, of Inmate Simon with claimant’s assault. Accordingly, claimant’s request for information concerning Inmate Simon, including his disciplinary history, is denied.

Demand No. 6 sought either the disciplinary hearing tape or transcript from Inmate Irizarry’s disciplinary hearing concerning the assault on claimant. As part of his claim, claimant alleges that he gave testimony against Irizarry at the disciplinary hearing solely due to assurances from correction officials that said testimony would be subject to a confidentiality agreement. Claimant further alleges that he was transferred from Involuntary Protective Custody (IPC) at Elmira to general population at Auburn Correctional Facility (Auburn), and that shortly thereafter, defendant breached that confidentiality agreement by indicating (in a grievance determination) that claimant had testified against another inmate at a Tier III hearing. Claimant asserts that such action caused him to be placed in IPC at Auburn, and although he believed that he would remain in IPC permanently, he was then transferred to general population at Wende Correctional Facility. Claimant also alleges that a “gang contract” was out on him, and five months later he was transferred to the Assessment Program Preparation Unit (APPU)[4] at Clinton Correctional Facility where he will stay for the remainder of his sentence.

This information requested is also protected by Public Officers Law § 96. However, claimant’s argument that production of the hearing tape and transcript may be necessary in order to prove the elements of his claim is persuasive. Accordingly, defendant is directed to provide a copy of the hearing transcript for an in camera review by the Court.

Demand No. 10 requested Irizarry’s “criminal record and crime of conviction(s).” A person’s criminal history report is generally exempt from disclosure (see Matter of Woods v Kings County Dist. Attorney’s Off., 234 AD2d 554 [1996]), and claimant has not demonstrated the relevance of that report to his claim (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]). Further, even though a person’s criminal convictions are a matter of public record, those convictions are generally relevant only to assess the veracity of a witness’s testimony, which is not in issue at this time. Claimant’s request for this information is denied.

Demand Nos. 14, 15, 26[5] and 43 are all similar in nature as they each request records of prior complaints or disciplinary actions against Captain Wenderlich, Sergeant Howorth, Correction Officer Bailey, and Mr. Titus. Demand No. 39 sought all documents (including disciplinary actions) relating to Grievance Nos. Aub 48022 06, and EL-30-780-06, both of which apparently concern Captain Wenderlich, Sergeant Volkler and Correction Office Materne.[6]

Civil Rights Law § 50-a (2) requires that a party seeking disclosure of the personnel records of a correction officer (or a police officer or a firefighter) must make a "clear showing of facts" sufficient to warrant a request for the records and must give all interested parties an opportunity to be heard. In Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Correctional Servs. (73 NY2d 26 [1988]), the Court of Appeals definitively held that inmate grievances against State correction officers constitute personnel records pursuant to Civil Rights Law § 50-a, and thus may not be disclosed without either written consent or court order. Moreover, subdivision 2 of that statute 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.”[7]

Claimant contends that he is seeking these records to show that the officers engaged in a pattern of conduct of routinely breaking rules and threatening claimant. Further, claimant states that some of these officers were directly involved in breaching the confidentiality agreement pertaining to his testimony. As a matter of law, these conclusory allegations do not constitute a clear showing of facts sufficient to warrant this Court to request these records for review (see People v Harris, 121 AD2d 788 [1986], lv denied 68 NY2d 770 [1986]). The motion to compel is therefore denied to the extent that it pertains to these specific demands.

Demand No. 43, in addition to seeking complaints and disciplinary action against Mr. Titus in his “former capacity as a corrections [sic] officer,” also sought any complaints or disciplinary action against Mr. Titus in his “current capacity as Inmate Grievance Program Supervisor.” Based upon the evidence submitted, it is unclear to the Court whether Mr. Titus is still a correction officer or whether, as an Inmate Grievance Program Coordinator, he is a civilian employee. Without this relevant information, the Court cannot determine whether Civil Rights Law § 50-a applies to this portion of Demand No. 43 or to that portion of Demand No. 39 which concerns Mr. Titus (see generally Hamilton v State of New York, Ct Cl, Oct. 23, 2002, Ruderman, J., Claim No. 105066, Motion No. M-65520 [UID # 2002-010-051]; cf. McKinney v State of New York, 111 Misc 2d 382 [1981] [where the Court held that court officers, although peace officers, are neither police officers nor correction officers, and were therefore not entitled to the protection of Civil Rights Law § 50-a]). The Court will hold this motion in abeyance with respect to Demand No. 39 (only to the extent that it concerns Mr. Titus) and Demand No. 43, and directs that defendant provide additional information concerning Mr. Titus’ employment with DOCS as an Inmate Grievance Program Coordinator within 30 days of the filing of this Decision and Order.

Lastly, in Demand No. 41, claimant requested the number of complaints from inmates who claim to have not received their prescribed medication at Elmira from the year 2001 to the year 2007. Defendant objected, stating that the information was privileged as it implicated other inmates’ health records. Claimant countered that the information could be redacted so that inmates’ names were not associated with their health records. Clearly, inmates’ medical records constitute private information which is protected by Public Officers Law § 96, and defendant cannot disclose them without a court order. The Court finds no need for claimant to have information contained in the medical records of other inmates. Keeping in mind that no party is required to create a document that does not currently exist (see Matter of General Elec. Co. v Macejka, 252 AD2d 700, 701 [1998], lv dismissed 92 NY2d 1012 [1998]), defendant is directed to inform the Court and claimant as to whether any existing record, in either redacted or unredacted form, would contain information concerning the number of complaints by inmates at Elmira of the failure to receive their prescription medication during the referenced time period.[8] The portion of this motion directed to Demand No. 41 is also held in abeyance pending receipt of further information from defendant, within 30 days of filing of this Decision and Order.

In conclusion, claimant’s motion is granted to the extent that defendant is directed to provide copies of Inmate Irizarry’s disciplinary history, documentation concerning his keeplock status on April 26, 2006, and his Tier III disciplinary hearing transcript to the Court for an in camera review, within 30 days of the date of filing of this Decision and Order. That portion of claimant’s motion relating to Demand Nos. 39, 41 and 43 is held in abeyance pending receipt of additional information from defendant, as directed in this Decision and Order.

February 22, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on October 19, 2007; Affidavit of Barry Berman sworn to on October 16, 2007, and attached exhibits.

2) Affirmation in Opposition of Joseph F. Romani, AAG, dated November 1, 2007.

3) Reply of Barry Berman dated November 5, 2007.

Filed papers: Claim filed on March 26, 2007; Verified Answer filed on April 30, 2007.

[1]. Claimant has listed the surname of his alleged assailant as Irizarry, Irazzary and Irazarry. Defendant has not provided any guidance; the Court will therefore use claimant’s first spelling of Irizarry.
[2]. Claimant has apparently accepted defendant’s responses that certain requested documents will be provided upon payment of a reasonable fee, and that information sought in other demands will be requested from the Department of Correctional Services (DOCS) and thereafter provided upon payment of a reasonable fee. Claimant has also agreed to revise his Demand Nos. 31 and 32 based upon defendant’s objection that they were overly broad.
[3]. Claimant also contends that the State was negligent by letting Inmate Irizarry out of keeplock for the “lunch chow run.”
[4]. “The APPU, an alternative to protective custody housing, is a special unit for ‘victim prone’ inmates who must be segregated from the general inmate population but who nevertheless receive almost all of the same services and programs to the extent that they can be scheduled around the activities of the general population” (Matter of Graziadei v Clinton Correctional Facility, 256 AD2d 697, 698 [1998]).
[5]. Demand No. 42 is identical to Demand No. 26.
[6]. To the extent that Demand No. 39 sought documents concerning Mr. Titus, it is addressed within the discussion of Demand No. 43, infra.

[7]. The Court of Appeals stated in Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Correctional Servs. (supra at 31-32), that the legislative purpose underlying Civil Rights Law § 50-a was “to protect the officers from the use of records -- including unsubstantiated and irrelevant complaints of misconduct -- as a means for harassment and reprisals and for purposes of cross-examination by plaintiff's counsel during litigation.”

[8]. If such record exists, the Court will allow additional submissions to address the issue of redaction (if any) and whether production of records for the entire six-year time period is appropriate.