New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2009-038-533, Claim Nos. 115333, 114829, 115726, 115059, 115787, 115817, 115985, 116147, Motion No. M-76371


Synopsis

Claimant’s motion to compel disclosure in multiple claims denied in part and granted in part

Case Information

UID:
2009-038-533
Claimant(s):
JOHNATHAN JOHNSON
Claimant short name:
JOHNSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115333, 114829, 115726, 115059, 115787, 115817, 115985, 116147
Motion number(s):
M-76371
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
JOHNATHAN JOHNSON
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 30, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Claimant, an individual incarcerated in a State correctional facility, filed this motion pursuant to CPLR §§ 3124 and 3126 seeking to compel defendant to comply with document requests claimant made under Claim Numbers 115333, 114829, 115726, 115059, 115787, 115817, 115985 and 116147. The instant motion was filed on March 4, 2009. Defendant’s opposition to the motion was filed on April 9, 2009, and claimant filed a reply thereto on April 15, 2009. Subsequent to the filing of this motion and prior to its return date, defendant served claimant with responses to claimant’s document requests on Claim Numbers 115059, 115985 and 116174 (see Rizzo Affirmation in Opposition, at ¶¶ 9-11; Exhibits C-E). In his response, claimant generally asserts that defendant’s production of documents was incomplete with respect to these claims, but he recites no specific items or omissions that remain to be addressed by defendant. Accordingly, as defendant has served responses to claimant’s document requests in these claims and claimant has not specified inadequacies in that disclosure, claimant’s motion to compel will be denied as moot with respect to Claim Numbers 115059, 115985 and 116174.[1]

Defendant avers that it has not received a document request on Claim Number 115817 (Rizzo Affirmation in Opposition, at ¶ 6). Although claimant’s reply generally contends that document demands were made in all of the claims that are noticed on the motion, the exhibits to his reply do not demonstrate that a document demand was served with respect to Claim Number 115817, and no such demand is in the Court’s file. Therefore, claimant’s motion to compel will be denied as premature with respect to Claim Number 115817.

Defendant avers that prior to the return date of this motion, defendant served claimant with a response to the document request on Claim Number 115787, and that the response stated that a page was missing from claimant’s document demand (see Rizzo Affirmation in Opposition, at ¶ 8; Exhibit B). Claimant thereafter served defendant with the missing page on March 25, 2009 and defendant avers that it will submit a supplemental discovery response (Rizzo Affirmation in Opposition, ¶ 8). Claimant’s reply does not include any specific objection to defendant’s response to his demand for Claim Number 115787. Therefore, to the extent that defendant has not yet submitted a supplemental discovery response, claimant’s motion will be granted to compel defendant to submit a supplemental discovery response in Claim Number 115787 forthwith.

Defendant avers that as of the time of its response to the motion, it was in the process of preparing a response to claimant’s document request on Claim Number 114829. Thus, to the extent that defendant has not yet responded to claimant’s document request on Claim Number 114829, claimant’s motion will be granted to compel defendant to submit a discovery response forthwith.

Defendant avers that prior to the return date of the motion, defendant served claimant with responses to claimant’s document requests on Claim Numbers 115333 and 115726 (see Rizzo Affirmation in Opposition, at ¶¶ 7 and 12; Exhibits A and F). In claimant’s reply to this motion, he asserts that defendant’s responses to certain enumerated discovery requests in these two claims are “still unproduced or incomplete” without further elaboration (Johnson Correspondence, dated April 13, 2009, at p. 2). The Court will address these objections seriatim.

Claim No. 115333

This claim seeks damages for emotional distress allegedly sustained as the result of the actions taken by employees of the Department of Correctional Services (DOCS) after the death of claimant’s mother on May 7, 2008. Specifically, the claim alleges that Upstate Correctional Facility (CF) officials refused to permit claimant to attend his mother’s funeral and that after the death of claimant’s mother, Correction Officer (CO) Michael Walts told claimant to have a “Happy Mother’s Day” and told Inmate Robert Cardew to verbally “attack” claimant about his mother’s death while Cardew was being escorted to the dentist by CO Walts. Claimant made a document request on July 19, 2008. Defendant responded to claimant’s request on April 8, 2009 and made a supplemental response on May 12, 2009.

Claimant objects to defendant’s responses to Request Numbers 3, 5 and 7 through 12. For many of these requests, defendant objected on the grounds that the requests are either vague or ambiguous or seek information not relevant to the claim (see Defendant’s Response to Claimant’s Disclosure Request for Production of Documents, Numbers 3, 5, 7, 8 and 12). However, defendant’s failure to raise these objections within 20 days of service of the requests (see CPLR 3122 [a]) “foreclose[s] inquiry into the propriety of the information sought except with regard to requests that are privileged under CPLR 3101, or as to requests which are palpably improper” (Fausto v City of New York, 17 AD3d 520, 522 [2d Dept 2005]; see Coville v Ryder Truck Rental, Inc., 30 AD3d 744, 745 [3d Dept 2006]; Griffith v State of New York, UID # 2007-015-173, Claim No. 110936, Motion No. M-72837, Collins, J. [Apr. 4, 2007]). A discovery demand is palpably improper if it seeks information that is confidential and does not appear to be relevant to the issues in the case (see Saratoga Harness Racing Inc. v Roemer, 274 AD2d 887, 889 [3d Dept 2000]; Briand Parenteau, Inc. v Dean Witter Reynolds, Inc., 267 AD2d 576, 577 [3d Dept 1999]), or, in the context of correctional facilities, if the demand seeks information that could compromise facility security if disclosed (see Williams v State of New York, UID # 2005-032-005, Claim No. 108088, Motion Nos. M-69514, CM-69536, Hard, J. [Feb. 8, 2005]; Rodriguez v State of New York, UID # 2005-009-063, Claim No. 107936, Motion No. M-70419, Midey, J., Dec. 13, 2005]).

Request Number 3 seeks a copy of the dates or computer print-out of any/all records or transcripts recording the telephone conversations between claimant’s family members and Upstate CF staff from May 7, 2008 through May 13, 2008 and thereafter. In its April 8, 2009 response, defendant stated that it is conducting a search for any records that are responsive to such requests and it will be provided if such records exist and are relevant. In its May 12, 2009 supplemental response, defendant referred claimant to a document entitled “Report of Grave Illness/Death in Inmate’s Family” that was part of Exhibit A of defendant’s April 8, 2009 response that was disclosed in response to Request Number 2. In that Report, it was noted that claimant’s sister had called Upstate CF on May 7, 2008 to notify of the death of claimant’s mother. Therefore, defendant has complied with this request, and claimant’s motion will be denied as moot as to Request Number 3. Defendant’s counsel is however reminded of its continuing obligation under CPLR § 3101 (h) to amend or supplement its response should it discover any additional documents that are responsive to this request, and is further reminded that it has waived any objection to disclosure other than privilege or palpable impropriety.

Request Number 5 seeks a copy of the list of all prison guards assigned to the A-1 gallery and other areas of the 11 Building at Upstate CF from 2:00 p.m. through 10:00 p.m. on May 12, 2008. In its April 8, 2009 response, defendant stated that it is conducting a search for any records that may be responsive to this demand and if such records exist and are relevant, it will be provided to claimant. In its May 12, 2009 supplemental response, defendant disclosed “relevant (redacted) pages from the May 12, 2009 console log book and entry log book” (Defendant’s Supplemental Response to Claimant’s Disclosure Request for Production of Documents, dated May 12, 2009, at p. 2). As noted above, by failing to raise a relevancy objection within 20 days service of the demand, defendant waived that objection. The Court therefore orders defendant to submit the unredacted pages to the Court for in camera review, along with an affirmation setting forth the claimed basis for the proposed redactions so that the Court may determine whether defendant must disclose the unredacted portions of those pages.

Request Numbers 7, 8 and 12 seek: (1) a copy of the Upstate CF sick call list for dental appointments for May 13 and May 14, 2008 for inmates in the 11 Building; (2) a copy of the special housing log book of May 13 and 14, 2008 for inmates in 11 Building; and (3) a copy of any communications or reports from DOCS Commissioner Brian Fischer pursuant to Correction Law § 113. In its April 8, 2009 response, defendant objected to release of the documents sought under these three requests under a “security privilege,” citing Department of Correctional Services Directive 2110, which provides that the release of inmate records and data shall only be released after giving consideration to inmate privacy, facility security and public safety. Defendant’s initial submission on the motion sheds no light on how the requested documents fall within the claimed privilege, and inasmuch as claimant’s reply was filed on the return date of the motion, defendant has not had the further opportunity to articulate the scope and application of the “security privilege” to these requests. Thus, the Court cannot assess the merits of defendant’s objection to disclosure. Accordingly, while the Court will order disclosure of the materials sought in Request Numbers 7, 8 and 12 – limiting disclosure of the communications or reports sought in Request 12 to reports or communications generated during the period of May 7, 2007 to May 7, 2008 – defendant may move for a protective order with regard to these documents on the grounds of the claimed privilege.

Request Numbers 9 and 10 seek copies of the grievance complaints under UST ## 33508-08 and 35687-08 at Upstate CF and the record transcripts of the investigation pertaining to those complaints respectively. In its May 12, 2009 supplemental response, defendant produced a copy of the grievance complaint and accompanying documents for UST #35508-08 in response to Request Number 9. Claimant has not stated any insufficiency therewith, and thus, claimant’s motion will be denied as moot with respect to Request Number 9. However, in its May 12, 2009 supplemental response, defendant objected to the release of the UST #35687-08 grievance on the grounds that the grievance is beyond the scope of the claim. As noted above, the failure by defendant to raise a relevancy objection within 20 days of service of the demand waived any such objection. Therefore, the Court orders defendant to release the grievance complaint and accompanying materials for UST #35687-08. However, given the institutional context of this claim, defendant may make an assertion of privilege, confidentiality or breach of security in a motion for a protective order.

Request Number 11 seeks communications made to Department of Correctional Services (DOCS) Commissioner Brian Fischer by claimant’s sister regarding the refusal to allow claimant to attend his mother’s funeral. In its April 8, 2009 response, defendant stated that it is conducting a search for any records that are responsive to such requests and such records will be provided if they exist and are relevant. As previously noted, defendant’s objection on relevancy grounds has been waived. To the extent that defendant has not already produced these records, the Court orders defendant to make a diligent search of its records to locate any such records, and to disclose such records to claimant forthwith. In the event that such records do not exist, defendant shall notify claimant in writing that a diligent search of its records were made and that no such records were discovered.

Claim No. 115726

This claim seeks damages for injuries allegedly sustained as the result of alleged assaults and deprivation of rights and privileges committed by correction officers at Upstate CF. As pertinent to this motion, the claim specifically alleges that on July 29, 2008 claimant was assaulted during a cell extraction, that his cell was unlawfully searched, and that claimant was deprived of food and water and put on a restricted diet. Claimant made a disclosure request on October 12, 2008, and defendant responded thereto on March 12, 2009. In his reply, claimant contends that defendant’s responses to Disclosure Request Numbers 1, 3, 5, 7 and 8 on pages 1 through 3 of his disclosure request, and Request Number 2 on page 4 are inadequate.

Request Number 1 seeks a copy of the Special Housing Unit Sign-In/Sign-Out Log for Building 11 for July 29, 2008. Defendant produced a one-page document that appears to be a sign-in/sign-out log for the requested date. Therefore, it appears that defendant has complied with this request, and claimant’s motion will be denied as moot as to Request Number 1.

Request Number 3 seeks video tapes from the July 29, 2008 extraction involving the claimant in 11 Building. In its March 12, 2009 response, defendant objected to the release of the video under the “security privilege,” but that notwithstanding its objection, defendant requested that the Inmate Records Coordinator (IRC) make the video available to claimant to view in accordance with DOCS procedures. As defendant’s “request” to the IRC appears to be a waiver of any privilege, the Court orders defendant to produce the video forthwith if it has not already done so. However, given the institutional context of this claim, defendant may make an assertion of privilege, confidentiality or breach of security in a motion for a protective order, specifically addressing the apparent waiver of the claimed privilege.

Request Numbers 5, 7 and 8 seek copies of (1) a cell search log for 11 Building for July 29, 2008; (2) documents regarding the grievance investigation on grievance complaint UST #36203-08; and (3) all deprivation orders issued on July 29, 2008 concerning claimant. In its March 12, 2009 response, defendant stated that it was then conducting a search for any records that are responsive to such requests and they will be provided if such records exist. Therefore, to the extent defendant has not already disclosed these records, the Court orders defendant to make a diligent search of its records to determine whether any such records exist and disclose such records to claimant forthwith. In the event that any such records do not exist, defendant shall notify claimant in writing that a diligent search of its records were made and no such records were discovered.

Claimant objects to defendant’s response to Request Number 2 on page 4 of his request, yet there are two requests on that page that are identified as “Disclosure Request No. 2.” The first occurs under the heading “Fourth Cause of Action” and seeks a copy of claimant’s medical records from January 2008 through July 29, 2008. Defendant objected to this request on the grounds that it was overly broad, unduly burdensome and not relevant, objections which were waived by defendant’s failure to timely raise them (see Fausto v City of New York, supra). Defendant also stated in its response that claimant may review his medical records by submitting a written request to the IRC or contacting the infirmary and making an appointment to review his records and that claimant will be provided with copies of the records after claimant pays reasonable costs to reproduce such records.[2] Therefore, it appears as though defendant has adequately responded to this request by providing claimant with access to his records and claimant’s motion will be denied as moot as to this Request Number 2. The second Request Number 2 occurs under the heading “Fifth Cause of Action” and seeks a copy of the “restricted diet loaf log from July 29, 2008 through August 9, 2008 of claimant [sic] refusal to eat the loaf” (Claimant’s Disclosure Request, Claim No. 115726, dated Oct. 12, 2008, at Request Number 2, p. 4). Defendant objected to this request as vague. It interpreted the demand as seeking documents pertaining to the prehearing restricted diet imposed as a result of the July 29, 2008 incident and referred claimant to documents it released in Exhibits C through H. In the absence of further argument from claimant as to why defendant’s disclosure under this request is insufficient or incomplete, the Court denies claimant’s motion to compel as it pertains to this Request Number 2.

Accordingly, it is

ORDERED, that Motion No. M-76371 is GRANTED IN PART in accordance with the foregoing; and it is further

ORDERED, that defendant shall serve claimant with its supplemental discovery response on Claim Number 115787 and a discovery response to Claim Number 114829, to the extent it has not already done so, within thirty (30) days of the filing of this Decision and Order; and it is further

ORDERED, that defendant shall within thirty (30) days of the filing of this Decision and Order, submit for in camera review the May 12, 2008 log book(s) discussed at pages 5-6 of this decision and Order, and it is further

ORDERED, that defendant shall not be required to produce any items for which defendant, within thirty (30) days of the date of filing of this Decision and Order, files and serves a motion for a protective order, and it is further

ORDERED, that Motion No. M-76371 is DENIED in all other respects.


June 30, 2009
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered:


(1) Claim No. 115333, filed June 4, 2008;

(2) Claim No. 114829, filed February 13, 2008;

(3) Claim No. 115059, filed April 2, 2008;

(4) Claimant’s Disclosure Request for Production of Documents, Claim No. 115333, dated

July 19, 2008;

(5) Claim No. 115726, filed August 21, 2008;

(6) Claim No. 115787, filed September 5, 2008;

(7) Claim No. 115817, filed September 10, 2008;

(8) Claimant’s Disclosure Request for Production of Documents, Claim No. 115726, dated October 12, 2008;

(9) Claim No. 115985, filed October 21, 2008;

(10) Claim No. 116147, filed December 1, 2008;

(11) Notice of Motion, filed March 4, 2009;

(12) Affidavit in Support of Motion to Compel Discovery and Inspection, of Johnathan Johnson,

sworn to February 26, 2009;

(13) Defendant’s Response to Claimant’s Disclosure Request for Production of Documents,

Claim No. 115726, dated March 12, 2009, with Exhibits A-H;

(14) Defendant’s Response to Claimant’s Disclosure Request for Production of Documents,

Claim No. 115333, dated April 8, 2009, with Exhibit A;

(15) Affirmation in Opposition of Michael C. Rizzo, AAG, dated April 9, 2009,

with Exhibits A-F;

(16) Reply Correspondence to Defendant’s Opposition of Johnathan Johnson, dated

April 13, 2009;

(17) Defendant’s Supplemental Response to Claimant’s Disclosure Request for Production of

Documents, Claim No. 115333, dated May 12, 2009, with Exhibits A-C.


[1]. To the extent that defendant contends that claimant did not send good faith letters prior to filing the instant motion, such an argument is without force, for two reasons. First, the requirement that a discovery motion be preceded by a good faith effort to resolve the issue (see 22 NYCRR § 202.7[a][2]) does not apply to claims that are litigated in the Court of Claims (see Benito v State of New York, UID # 2004-032-075, Claim No. 109209, Motion No. M-68602, Hard, J. [Sept. 27, 2004]). Second, claimant’s motion was not brought on by a discovery “dispute,” but by defendant’s failure to respond to his discovery requests at all. In seeking to apply a good faith effort requirement in this situation, defendant would essentially require claimant to ask twice for that which he is only required to request once.

[2]. Defendant also referred claimant to records it released in response to a request for claimant’s medical records from the July 29, 2008 incident (see Claimant’s Disclosure Request, Claim No. 115726, dated Oct. 12, 2008, at Request Number 10; see also Defendant’s Response to Claimant’s Disclosure Request, Claim No. 115726, dated Mar. 12, 2009, at Exhibit H). The disclosure made in response to claimant’s request for the medical records from the July 29, 2008 incident is an insufficient response to Request Number 2, as those records do not predate July 29, 2008.
As implied by defendant, it may require claimant to pay reasonable costs for the reproduction of records (see Ramos v State of New York, UID # 2008-044-538, Claim No. 109478, Motion Nos. M-74114, M-74271, M-74707, M-74790, Schaewe, J. [May 20, 2008]; Gittens v State of New York, 175 AD2d 530 [3d Dept 1991]).