New York State Court of Claims

New York State Court of Claims

WEEMS v. THE STATE OF NEW YORK, #2009-015-130, Claim No. 115306, Motion No. M-75887


Pro se inmate's motion to take the non-party deposition of other inmates was denied. Claimant failed to establish why a deposition of one inmate was necessary where his hearing testimony was available and failed to establish that other inmates' testimony was material and necessary.

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:
Kevin Weems, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Kent B. SprotberyAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 3, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves for an order to take the depositions of non-party inmates, Jake Winters and individuals identified as Meredith (01A0386) and Queens (04A5322).[1] Claimant seeks to recover damages arising from a series of events beginning March 5, 2008 when, during the course of moving his belongings from one cell to another, Correction Officer Pereira informed another inmate, Jake Winters, that claimant was under investigation for raping his cell mate. Claimant completed packing his belongings and requested assistance in moving them due to his physical limitations. Correction Officers Pereira and Griffin then allegedly called claimant derogatory names and told him "to carry [his] own shit, or . . . they would then notify the Area Supervisor, and say that [he] refused and began to threaten them" (claim, ¶ 8). Claimant alleges he then requested to see the area supervisor at which time Correction Officers Pereira and Griffin began punching him about the back and head. In addition to this assault, claimant alleges that he was denied medical treatment for the injuries he sustained. Thereafter, claimant was found guilty of certain disciplinary violations, which he alleges were contrived, and sanctioned to 90-days keeplock. Claimant alleges that Correction Officers Pereira and Griffin together with Sergeant Kline deliberately failed to secure his property during the course of his move from one cell to another. Claimant asserts that as a result of the actions of the correction officers a T.V., commissary items, a razor, and legal documents were stolen.

Claimant further alleges in the claim that his safety was endangered as a direct result of Correction Officer Pereira's "lies and rumors" regarding the purported rape of his cell mate (claim, ¶ 13). Inmates threatened him and threw several buckets of water, feces and urine into his cell, all while in the presence of Correction Officer Pereira. In addition, claimant alleges that Correction Officer Pereira instructed his co-workers not to allow the claimant to shower.

The claim also alleges the claimant was "beaten, punched, kicked, stomped" by correction officers on April 11, 2008 while being processed for transfer to another facility (claim, ¶ 18). Claimant was served with two allegedly fabricated misbehavior reports on April 13, 2008 (claim ¶ 22) and found guilty of the charges.

Claimant alleges causes of action for assault, negligent hiring and training, failure to properly secure his property and personal safety, violation of professional standards and ethics by correction officers, and violations of his constitutional rights.

Pro se litigants are not included among those who are authorized to issue a subpoena and a judicial subpoena is necessary to compel the deposition of a person confined in a penitentiary or jail (CPLR 2302 [a] and [b]; CPLR 3106 [c]). Disclosure against a non-party, including the taking of his or her deposition, is permitted only upon a showing of special circumstances (CPLR 3101 [a] [4]; Smith v Moore, 31 AD3d 628 [2006]). Special circumstances include a showing that the information sought to be discovered is material and necessary and cannot be obtained from other sources (Cerasaro v Cerasaro, 9 AD3d 663 [2004]; Sand v Chapin, 246 AD2d 876 [1998]; Porter v State of New York, Ct Cl, November 22, 2006 [Claim No. 107790, Motion No. M-72419, UID # 2006-030-582] Scuccimarra, J., unreported). Here, claimant failed to establish that the testimony of the non-party witnesses is material and necessary and cannot be obtained from other sources.

Claimant asserts in only the most conclusory manner that the deposition testimony of Jake Winters, Meredith (DIN 01A0386) and Queens (DIN 04A5322) is material and necessary to the prosecution of his claim. He failed to establish in his motion what events these inmates witnessed. While it is alleged in the claim that inmate Jake Winters was privy to the alleged remarks made by Correction Officer Pereira, claimant also alleges that this inmate, as well as others, testified on his behalf at his Tier III hearing. Thus, while the testimony of inmate Winters may be material, it does not appear to be necessary because it can be obtained from another source, i.e., by obtaining a copy of the hearing transcript.

To the extent claimant has requested the non-party deposition of Meredith and Queens, he makes no showing as to why the testimony of these inmates is material and necessary. Nor is the materiality or necessity of the testimony apparent from the allegations of the claim.

Based on the foregoing, claimant's motion is denied.

February 3, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated November 2, 2008;
  2. Affidavit of Kevin Weems sworn to November 2, 2008;
  3. Affirmation of Kent B. Sprotbery dated December 9, 2008.

[1]. The full names of Meredith and Queens are unknown.