New York State Court of Claims

New York State Court of Claims

BERMAN v. THE STATE OF NEW YORK, #2008-044-586, Claim No. 113499, Motion No. M-74113


Synopsis


Court conducted in camera review of documents to be provided to inmate claimant.

Case Information

UID:
2008-044-586
Claimant(s):
BARRY BERMAN
Claimant short name:
BERMAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113499
Motion number(s):
M-74113
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
BARRY BERMAN, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 1, 2008
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 State of New York (defendant) answered and asserted several affirmative defenses. Claimant moved to compel disclosure. Defendant opposed the motion. By Decision and Order dated February 22, 2008, the Court ordered defendant 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 for an in camera review (Berman v State of New York, Ct Cl, Feb. 22, 2008, Schaewe, J., Claim No. 113499, Motion No. M-74113 [UID # 2008-044-514]). The Court also held that portion of claimant’s motion which related to Demand Nos. 39, 41 and 43 in abeyance pending receipt of additional information from defendant (id.).[2] Defendant has provided the material requested by the Court. 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]).

The Court has reviewed Inmate Irizarry’s disciplinary history in camera, and finds that the entries of violent behavior (fighting, violent conduct, assault on inmate, and possession of a weapon) which occurred on July 31, 2003, July 17, 2003, September 17, 2001, December 1, 1999, May 8, 1997, November 8, 1996, July 19, 1996, July 17, 1996, October 21, 1995, October 8, 1995 and July 12, 1995 are relevant to this claim of inmate-on-inmate assault. Further, the Court finds that the incidents of non-violent conduct (creating a disturbance and harassment) which occurred on November 8, 1996 and October 8, 1995, respectively, may be relevant to establishing “an overall course of conduct of non-conformity and disrespect for authority and institutional rules” (Combes v State of New York, Ct Cl, Aug. 3, 2005, Lebous, J., Claim No. 109385, Motion No. M-69902 [UID #2005-019-557]). The Court notes, however, that while this information is discoverable, it is premature at this stage to determine whether such will be admissible at trial (Silva v State of New York, Ct Cl, May 30, 2003, Midey, Jr., J., Claim No. 103100, Motion No. M-65539 [UID #2003-009-18]).

In further response to the Court’s directive, defendant submitted the transcript for the disciplinary proceeding against Inmate Irizarry, including the transcript of claimant’s confidential testimony. In this action, claimant asserts that notwithstanding assurances that his testimony would remain confidential, defendant allegedly revealed the fact that claimant testified in a Tier III disciplinary hearing against Inmate Irizarry.[3] The Court has reviewed the transcript of claimant’s testimony and has determined that it contains information which may be relevant to this claim. Defendant is directed to provide claimant a copy of the transcript within 20 days of the filing of this Decision and Order.[4] The Court has also reviewed the non-confidential portion of Inmate Irizarry’s disciplinary proceeding, and finds that it also contains information which may be relevant to the prosecution of this claim. However, defendant is directed to redact any inmate DINs prior to providing claimant with a copy of said transcript within 20 days of the filing of this Decision and Order.

Defendant also submitted a copy of the unusual incident report and other supporting documentation, including both the misbehavior report and inmate injury report for Inmate Irizarry. These reports indicate that prior to the assault, Inmate Irizarry was housed in G-4-5, which is located in the same block and on the same floor as claimant (who was housed in G-4-27), apparently in General Population.[5] It is claimant’s allegation that Inmate Irizarry was supposed to be confined in keeplock pending an investigation on Irizarry’s possible assault of a neighboring inmate, “Sarge,” and thus defendant had notice of his violent propensity. Although the misbehavior report indicates that Inmate Irizarry was “under prior confinement/restriction,” the precise manner of restriction is not listed. Further, there is no entry in Inmate Irizarry’s disciplinary history which would support an inference that any such prior confinement/restriction was for investigative or disciplinary purposes. Given this conflicting information, defendant is directed to provide documentation to the Court for an in camera review which may clarify Inmate Irizarry’s confinement status on April 26, 2006, prior to his placement in SHU as a result of the attack on claimant.

The Court must now address that portion of claimant’s motion which was held in abeyance pending receipt of additional information from defendant. In Demand No. 41, claimant requested the number of complaints by inmates at Elmira from 2001 through year 2007, which allege that they failed to receive their prescription medication. In response to the Court’s request for information concerning the number of such complaints, defendant has provided a letter dated March 13, 2008 from Karen Bellamy, Director of the Inmate Grievance Program, which states that the Central Office Review Committee “received . . . 55 grievance appeals from Elmira . . . containing the word ‘medication’ in the title for Code 22, Medical” during that time period. Keeping in mind that there is no obligation for a party to create a document that does not currently exist, and in light of the fact that it is claimant’s burden to establish both that he was not given his prescription medication and that said failure caused him injury or damage, the Court finds Ms. Bellamy’s letter to be an adequate response to Demand No. 41.

With respect to the remaining Demand Nos. 39 and 43, defendant has submitted the information packet for the “Transition Examination for State Employees” for the position of Supervisor, Inmate Grievance Program Trainee – presumably Mr. Titus’ position during the relevant time period – as well as copies of both the “Duties Description Supervisor Inmate Grievance Program,” and “Performance Evaulation [sic] Program.” The Court has reviewed the qualifications for the position submitted by defendant, and finds that although a prospective supervisor is required to have been an employee of the Department of Correctional Services for at least three months, the position does not require the prospective supervisor to be or to have been a correction officer. Further, the supervisor’s duties concern coordination, supervision and enforcement of the Inmate Grievance Program rather than any supervision over inmates. Because defendant has not submitted evidence which would demonstrate that Titus was a correction officer while serving as Supervisor of the Inmate Grievance program, the Court finds that Titus is not entitled to the protection of Civil Rights Law § 50-a with respect to items contained in his personnel records during the period he served in that position.[6] Accordingly, claimant is not required to make a “clear showing of facts” sufficient to warrant a request for the records and give all interested parties an opportunity to be heard pursuant to Civil Rights Law

§ 50-a .

It has been noted that, while Civil Rights Law § 50-a does not protect the personnel records of DOCS employees who are not correction officers, nevertheless many of the same policy considerations may still apply, as such employees should also be entitled to some level of protection from harassment, reprisals and fishing expeditions (see Mosley v State of New York, Ct Cl, Feb. 26, 2002, Patti, J., Claim No. 104862, Motion No. M-64397 [UID # 2002-013-003] [where notwithstanding the State’s failure to object to disclosure of the requested documentation, the Court did not allow “untrammeled inquiry” into the personnel records of a prison counselor]). In this instance, however, claimant has made a sufficient showing that his confidential testimony regarding another inmate may have been revealed as part of a grievance determination to warrant the Court to conduct an in camera review of any complaints or disciplinary action against Mr. Titus during the time period when he was the Supervisor of the Inmate Grievance Program in order to determine whether they contain any information which may be directly relevant to this claim. Defendant is therefore directed to submit any documentation it may have regarding complaints or disciplinary action taken against Mr. Titus during his tenure as Supervisor of the Inmate Grievance Program to the Court for an in camera review within 20 days of the filing of this Decision and Order.

In conclusion, defendant is directed to provide claimant with the unredacted copy of his confidential testimony, and the redacted copies of both Inmate Irizarry’s disciplinary history and the transcript of the non-confidential testimony taken at his disciplinary hearing, and a copy of Karen Bellamy’s letter dated March 13, 2008, all within 20 days of the filing of this Decision and Order. Defendant is further directed to provide the Court with documentation concerning Inmate Irizarry’s confinement status on April 26, 2006 during the time that claimant was assaulted, and any complaints or disciplinary action taken against Mr. Titus during his capacity as Inmate Grievance Program Supervisor for an in camera review within 20 days of the filing of this Decision and Order.

The Chief Clerk of the Court is directed to seal and preserve both Inmate Irizarry’s redacted and unredacted disciplinary history, and the transcript of claimant’s confidential testimony, and the redacted and unredacted transcript of the non-confidential testimony taken at Inmate Irizarry’s disciplinary hearing provided to the Court for this in camera inspection in the event of possible appellate review.

December 1, 2008
Binghamton, New York

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


The following papers were read on this in camera review:


1) Disciplinary History for inmate Alexis Irizarry;


2) Transcript for Alexis Irizarry;


3) Disciplinary History for inmate Barry Berman;

4) Transcript for Barry Berman;


5) Hearing packet for Barry Berman and UI # 1944311;


6) Job Description for Mr. Titus;

7) Letter from Karene Bellamy, Director, I.G.P., dated March 13, 2008 concerning 2001-2007 CORC grievance appeals from Elmira Correctional Facility containing the word “medication” in the title for Code 22, Medical.

[1]. In various documents such as the claim, discovery demands, and motion papers, claimant has listed the surname of his alleged assailant as Irizarry, Irazzary and Irazarry. Based upon information submitted by defendant, the correct spelling appears to be Irizarry.
[2]. Demand Nos. 39 and 43 requested complaints, grievances, and any disciplinary action against, among others, Mr. Titus in his capacities as both a correction officer and Inmate Grievance Program Supervisor. Demand No. 41 requested information concerning any record which would contain information pertaining to the number of complaints by inmates at Elmira of the failure to receive their prescription medication during year 2001 through year 2007.
[3]. Claimant alleges that after his attack and prior to testifying, he filed a grievance concerning the lack of security in the stairwell in which he was assaulted. This grievance was denied by the Inmate Grievance Resolution Committee (IGRC) based upon claimant’s initial refusal to cooperate with the investigation. However, the IGRC noted that claimant later testified “at a tier 3 [sic] hearing against another inmate” (Response of IGRC attached to Claim No. 113499). Claimant asserts that despite the promise that his testimony would remain confidential, several inmates were privy to the information and to the signed IGRC determination. The Court notes that pursuant to Correction Law § 139 (1), the IGRC is composed of five members, at least two of whom are inmates (see also 7 NYCRR § 701.4 [a]).
[4]. Because the only testimony contained in the transcript is that of claimant, he is entitled to an an unreacted copy of the transcript.
[5]. Shortly after the assault on claimant, Inmate Irizarry was admitted into a Special Housing Unit (SHU).
[6]. To the extent that claimant seeks complaints and disciplinary action taken against Mr. Titus in his position as a correction officer, he has not made a clear showing of facts sufficient to warrant the Court to request these records. Moreover, claimant’s allegation concerns the unauthorized revelation of his confidential testimony as part of a grievance determination while Mr. Titus was Inmate Grievance Program Supervisor, and any complaint or disciplinary action taken against him while he was employed as a correction officer is therefore not relevant to this claim.