New York State Court of Claims

New York State Court of Claims

RASCOE v. THE STATE OF NEW YORK, #2009-038-549, Claim No. 112145, Motion No. M-76307


Defendant’s motion for a protective order denied in part and granted in part. In claim alleging inmate-on-inmate assault, entries in assailant’s disciplinary history that pre-date the incident at issue and which contain disciplinary charges relating to violence must be disclosed as they are relevant to defendant’s knowledge of assailant’s potential for violent conduct. Entries that do not include violence, or that post-date the attack, may be redacted

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:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Glenn C. King, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 17, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This claim by an individual incarcerated in a State correctional facility alleges that claimant was assaulted by another inmate, Terry Golden, #00-A-6753, at Upstate Correctional Facility on November 13, 2005. This Court previously granted parts of claimant’s motion to compel production of his discovery demands, but provided defendant the opportunity to seek a protective order with respect to Golden’s disciplinary history (see Rascoe v State of New York, UID # 2009-038-505, Claim No. 112145, Motion No. M-75553, DeBow, J. [Jan. 12, 2009]). Defendant now moves for a protective order; claimant has not submitted papers in opposition to the motion.[1] In support of its motion, defendant bases its opposition to disclosure of Golden’s disciplinary history upon Public Officers Law § 96, which generally prohibits governmental entities from disclosing personal information except in enumerated circumstances, one of which is in response to a court ordered subpoena or other compulsory legal process (see Public Officers Law § 96[k]). Implicitly acknowledging this Court’s authority to order disclosure of Golden’s disciplinary history, defendant argues that those entries that are irrelevant to the instant claim should not be disclosed. Specifically, defendant contends that it should not be compelled to disclose any disciplinary charges against Golden that were filed after the alleged assault of claimant, nor any charges that do not involve similar assaultive or violent behavior.

A claim against the State arising from an inmate-on-inmate assault requires the claimant to demonstrate that the attack by another inmate was reasonably foreseeable (see Sanchez v State of New York, 99 NY2d 247, 252 [2002]). More particularly, a claimant must demonstrate that the State “knew or had reason to know” (id. at 255) that: (1) claimant was at risk of assault; (2) the assailant was prone to perpetrate an attack; or (3) that surrounding conditions were likely to engender or facilitate an attack, and that defendant failed to act to address the foreseeable attack (see Gangler v State of New York, 302 AD2d 964, 964 [4th Dept 2003]; Mann v State of New York, 8 Misc 3d 1028[A], *6 [Ct Cl 2005]). Thus, to the extent that Golden’s disciplinary history indicates prior assaultive or violent behavior, it may be relevant in proving that defendant knew or had reason to know prior to the alleged assault that Golden was prone to violence (see Serrano v State of New York, UID #2006-009-080, Claim No. 112135, Motion No. M-71889, Midey, J. [Dec. 28, 2006]).

Balancing the statutorily expressed policy in favor of the protection of personal information (see generally Public Officers Law § 96) with claimant’s right to obtain information that is material and necessary to his claim (see generally CPLR 3101), the Court makes the following determinations with respect to defendant’s motion for a protective order.

Entries for disciplinary charges against Golden for any incidents that occurred after the alleged assault are patently irrelevant to defendant’s knowledge of Golden’s violent conduct prior to the attack on claimant. Therefore, defendant shall not be required to disclose the entries for any incidents that occurred subsequent to November 13, 2005.

The vast number of the disciplinary incidents in Golden’s history that occurred before the alleged assault in this claim contain disciplinary infractions that patently do not involve assaultive or violent behavior. Thus, such entries are not material or relevant to this claim, and defendant shall not be required to disclose them.

However, there are sixteen entries that pre-date the assault of claimant that contain disciplinary infractions involving violence, fighting, the making of threats or the possession of weapons, any of which may be material and relevant to whether defendant knew or should have known that Golden was prone toward violent behavior. Thus, defendant will be required to disclose the entries for the following incident dates, recited in the order in which they appear in the disciplinary report: (1) April 26, 2001; (2) October 31, 2001 (at 12:00 PM); (3) December 8, 2001; (4) May 21, 2002; (5) May 19, 2002; (6) July 11, 2002; (7) July 25, 2002; (8) July 28, 2002; (9) November 24, 2002; (10) January 11, 2003; (11) two entries for February 10, 2003; (12) two entries for April 6, 2004; and (13) two entries for September 20, 2004. In addition, the entry for the alleged assault that is the subject of this claim is material and relevant to this claim, and thus defendant is required to disclose the entry for November 13, 2005.

Accordingly, it is

ORDERED, that defendant’s motion for a protective order, Motion No. M-76307, is DENIED IN PART, and defendant is directed to provide claimant with a copy of Inmate Golden’s disciplinary history, redacted in accordance with this Decision and Order, and it is further,

ORDERED, that Motion No. M-76307 is GRANTED in all other respects.

June 17, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 112145, filed March 29, 2006;

(2) Notice of Motion, dated February 24, 2009;

(3) Affirmation of Glenn C. King, dated February 24, 2009, with exhibits A-B;

(4) New York State Department of Correctional Services, Standards of Inmate Behavior

All Institutions, Revised February 1998, with amendments.

[1]. Defendant has submitted an unredacted copy of Inmate Golden’s disciplinary history, along with a proposed redacted copy, for in camera review. At the request of the Court, defendant has also submitted a copy of its booklet entitled “Standards of Inmate Behavior All Institutions,” which sets forth and defines the various disciplinary rules and requirements to which inmates are subject.