New York State Court of Claims

New York State Court of Claims

DOE v. STATE OF NEW YORK and NEW YORK STATE DEPARTMENT OF CORRECTIONS, #2009-042-516, Claim No. 113388, Motion No. M-76758


Synopsis


This is a discovery motion brought before the court by claimant to compel discovery of personnel records, Inspector General’s report, copies of any and all sexual harassment, abuse and assault claims at the correctional facility and copies of all lawsuits filed against the correctional facility or its employees. The court grants claimant’s motion and orders that pursuant to Civil Rights Law Section 50-a (3) the defendant shall seal the personnel records and send them, or a sealed complete copy of same, to the court for an in camera review within 45 days of the date of filing of this decision and order; the court grants claimant’s motion to the extent that the defendant is directed to seal the Inspector General’s report, or a complete copy thereof, and provide said sealed material to the court within 45 days of the date of the filing of this decision and order; and the court denies claimant’s motion insofar as it seeks copies of all sexual harassment, abuse and assault claims at the correctional facility and copies of all lawsuits filed against the correctional facility or its employees as said demands are vague and overly broad.

Case Information

UID:
2009-042-516
Claimant(s):
JOHN DOE
Claimant short name:
DOE
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK and NEW YORK STATE DEPARTMENT OF CORRECTIONS1 1.While the caption names both the State of New York and New York State Department of Corrections as separate defendants, the latter is a department of the former. As a result, there is in fact only one defendant - the State of New York.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113388
Motion number(s):
M-76758
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
BOUVIER PARTNERSHIP, LLPBy: GEORGE R. BLAIR, JR., ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 29, 2009
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court has considered the following papers on claimant’s motion to compel discovery:

  1. Notice of Motion, filed June 1, 2009
  2. Affidavit of John Doe, sworn to November 26, 2007
  3. Affidavit of George R. Blair, Jr., Esq., sworn to September 25, 2008
  4. Exhibits 1 - 4, annexed to the moving papers
  5. Exhibit A, annexed to the moving papers
  6. Opposition affirmation of Joel L. Marmelstein, Esq., dated October 24, 2008
  7. Exhibits A - C, annexed to the opposition affirmation
  8. Reply affidavit of George R. Blair, Jr., Esq., sworn to October 31, 2008
  9. Exhibits A - B and A - F, annexed to the reply affidavit
  10. Opposition affirmation of Joel L. Marmelstein, Esq., dated June 17, 2009
  11. Exhibits A - C, annexed to the opposition affirmation

This matter comes before the court on a discovery motion brought by claimant[2]. In the underlying claim it is alleged by claimant that on or about March 10, 2006, while he was an inmate at the Marcy Correctional Facility:

Corrections Officer Sgt. Stephen T. Lockwood, then and there employed by the State of New York and New York State Department of Corrections at Marcy Facility, sexually assaulted the Claimant in that Claimant was forced to commit oral sodomy upon the person of Corrections Officer Sgt. Stephen T. Lockwood, who threatened the Claimant that if he did not perform said act, Corrections Officer Sgt. Stephen T. Lockwood would use his authority to revoke various privileges which the Claimant would normally receive, and would use his authority to extend the Claimant’s prison term.
After forcing said act, Corrections Officer Stephen T. Lockwood struck Claimant about the body in an attempt to coverup said act.

Claimant alleges that the defendant was negligent in its hiring, instruction and supervision of Correction Officer Sgt. Stephen T. Lockwood, and that defendant had actual and constructive notice, or should have anticipated, that said Correction Officer Sgt. Stephen T. Lockwood was likely to cause injury to inmates at the Marcy Correctional Facility. Additionally, the claim asserts that the defendant failed to conduct an adequate or complete background check of said officer and retained said officer in its employ after it knew or should have known of his violent propensities.

It is in this context that the discovery dispute between the parties has arisen. By this motion claimant seeks to compel the defendant to provide:
  1. the personnel records of Sgt. Lockwood, or in the alternative, an in camera inspection by the court to determine what records should be released;
  1. a copy of the Inspector General's report of the underlying incident, or in the alternative, an in camera inspection by the court to determine what records should be released;
  1. copies of all sexual harassment, abuse, and assault claims from January 1, 2003 to March 10, 2006 at the Marcy Correctional Facility;
  1. copies of all lawsuits filed against Marcy Correctional Facility or its employees from January 1, 2003 to March 10, 2006.

Defendant opposes the motion in all respects.


THE PERSONNEL RECORDS OF SGT. STEPHEN T. LOCKWOOD

The availability for discovery of the personnel records of Sgt. Lockwood is governed, in large measure, by the provisions of Civil Rights Law § 50-a. This section provides, in pertinent part:

1. All personnel records, used to evaluate performance toward continued employment or promotion, under the control of . . . a department of correction of individuals employed as correction officers . . . shall be considered confidential and not subject to inspection or review without the express written consent of such

. . . correction officer . . . except as may be mandated by lawful

court order.


2. Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review.


3. If, after such hearing, the judge concludes there is a sufficient basis he shall sign an order requiring that the personnel records in question be sealed and sent directly to him. He shall then review the file and make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting.


Notice to the affected correction officer, Sgt. Lockwood, is not an issue. Sgt. Stephen T. Lockwood was personally served with claimant’s motion seeking release of the aforementioned records and thus given the opportunity to be heard on the matter, in accordance with statutory requirement. The officer submitted no response to claimant’s motion.

However, defendant argues that claimant has failed to meet the second threshold requirement that there be “a clear showing of facts sufficient to warrant the judge to request records for review”. Nevertheless, disclosure thus far indicates that at least one inmate reports that Sgt. Lockwood visited claimant with some regularity and always at night, after 12:00 a.m. and “lights out”, and other inmates indicated contact with claimant and Sgt. Lockwood. Additionally, a counselor at the facility reported, in a report prepared following the incident in issue, that on March 8, 2006 - two days prior to the incident - she counseled inmate John Doe. Counselor Rowlands’ report stated in relevant part that:

[t]hen he broke down crying, saying he had deeper personal issues. He had been raped by a C.O. and had just been awarded $80,000 dollars [sic]. He continued to state “you don’t know what it’s like; they are always coming to talk to me; I get called out by the Sgt. at 3:00 a.m.” He did not mention any names of Sgt. or that anything inappropriate was going on.


(Exhibit C, attached to Blair Reply Affidavit).


Claimant himself reports that Sgt. Lockwood visited him on numerous occasions prior to the alleged assault, with no legitimate reason for doing so, and that Lockwood’s approaches “always involved some sort of sexual innuendo and some actual touching.” It is his further contention that the record keeping and log-in programs at the facility should have put the defendant on notice to the constant and unjustified interaction between claimant and Sgt. Lockwood. The incident of March 10, 2006 was subsequently reported to and investigated by the facility.

Defendant has stipulated that a sexual encounter occurred between claimant and Sgt. Lockwood on March 10, 2006 and it is undisputed that there was a subsequent investigation. In light of all the foregoing, it is inconceivable that the personnel file of Sgt. Lockwood would not contain information bearing on the merits of the action. It is clear that the personnel files of Sgt. Lockwood are relevant to this matter and that claimant has made “a clear showing of facts sufficient to warrant the judge to request records for review” (Civil Rights Law Section 50-a [2]; Leonido v State of New York, UID No. 2000-017-613, Claim No. 99960, Motion No. M-59804, Feb. 2, 2001, O’Rourke, J.).
Generally, the scope of discovery is broad and CPLR 3101 (a) mandates “full disclosure of all matter material and necessary in the prosecution or defense of an action.” It is to be liberally construed, subject to a showing of materiality and necessity, and in the absence of a privilege that militates against disclosure (Hoenig v Westphal, 52 NY2d 605, 608 [1981]; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; Mc Kinney v State of New York, 111 Misc 2d 382, 384 [Ct Cl 1981]).

(H.L. v State of New York, UID No. 2008-040-027, Claim No. 113054, Motion Nos. M-74374, CM-74410, May 9, 2008, McCarthy, J.).

Claimant’s motion is granted insofar as it is ordered that, pursuant to Civil Rights Law Section 50-a (3), the defendant shall seal the personnel records of Sgt. Lockwood and send them, or a sealed complete copy of same, to the Court for an in camera review of the records within forty-five (45) days of the date of filing of this Decision and Order with the Clerk of the Court of Claims. The Court shall thereafter review said records and determine what parts of said record are relevant and material for disclosure to the claimant.

THE INSPECTOR GENERAL’S REPORT

With regard to the claimant’s request for disclosure of the Inspector General’s report, the assistant attorney general argues that claimant has failed to “make a proper showing” or good faith showing of facts that make it reasonably likely that the report will contain information on the merits.

Defendant contends that access to the information contained in the Inspector General’s report should be based on more than “a fishing expedition”, that there is a public interest privilege and that the controlling precedent is to prohibit such disclosure where an inmate is still incarcerated.

In response, claimant points out the facts developed thus far (and discussed in the prior section) make it apparent that there should be ample relevant facts contained in the Inspector General’s report. The Court is in accord; and, insofar as defendant has expressed concern for the public interest privilege, defendant offered no specific facts supporting a finding of non-disclosure.
It has long been recognized that the public interest is served by keeping certain government documents privileged from disclosure (see, Cirale v 80 Pine St. Corp., 35 NY2d 113; One Beekman Place v City of New York,169 AD2d 492, 493). The Court of Appeals has observed that “[t]he hallmark of this privilege is that it is applicable when the public interest would be harmed if the material were to lose its cloak of confidentiality” (Cirale v 80 Pine St. Corp., supra, at 117-118).

(Lowrance v State of New York, 185 AD2d 268).


Where an inmate seeking disclosure of the Inspector General’s report is still incarcerated, the general rule is that such disclosure is denied (Lowrance v State of New York, 185 AD2d 268). However, the disclosure determination is fact-specific, and under certain circumstances is nonetheless warranted (see Leonido v State of New York, UID No. 2000-017-613, Claim No. 99960, Motion No. M-59804, Feb. 2, 2001, O’Rourke, J.). Disclosure has been allowed when there appears to be no continuing need for the “overriding public interest in confidentiality” and “there is a substantial likelihood that material and relevant information necessary to the prosecution of the claim may be had in the file under discussion” (S. v State of New York, UID No. 2007-030-048, Claim No. 110268, Motion No. M-73977, Dec. 5, 2007, Scuccimarra, J., citing Civil Practice Law and Rules § 3101).

Claimant’s motion is granted to the extent that the defendant is directed to seal the report, or a complete copy thereof, and provide said sealed material to the Court within forty-five (45) days of the date of filing of this Decision and Order with the Clerk of the Court of Claims[3]. The Court will then make an in camera review of the material, mindful of the applicable law relative to such disclosure, including the applicability of Civil Rights Law Section 50-a (see Wunsch v City of Rochester, 108 Misc 2d 854). Following the review, the Court will determine what parts, if any, are relevant and material for disclosure and under what conditions such disclosure shall occur.

SEXUAL HARASSMENT, ABUSE AND ASSAULT CLAIMS

AND COPIES OF ALL LAWSUITS

As for copies of all sexual harassment, abuse, and assault claims from January 1, 2003 to March 10, 2006 at the Marcy Correctional Facility, and copies of all lawsuits filed against Marcy Correctional Facility or its employees from January 1, 2003 to March 10, 2006, the defendant maintains that the demands are overly broad, irrelevant and burdensome.

In response, claimant contends that such information is relevant because “[a] pattern of sexual harassment, abuse and assault claims or lawsuits will help show that the Defendant has improperly trained its corrections officer or inadequately supervised them” (reply affidavit of claimant’s counsel, sworn to October 31, 2008).

While claimant may be correct that such broad discovery might yield the desired results, that is not license for a broad-ranging fishing expedition in the absence of evidence of any sexual harassment, abuse and assault claims or lawsuits beyond the allegations of this claim (see CPLR § 3101 [a]). There must be some factual predicate for disclosure, particularly in instances in which both the public interest privilege and Civil Rights Law Section 50-a are implicated. As the Court of Appeals has noted, the applicability of Civil Rights Law Section 50-a is not limited merely to personnel files, but also applies to other correctional facility records, including inmate grievances (Matter of Prisoners’ Legal Servs. of N.Y. v New York State Dept. of Correctional Servs., 73 NY2d 26). Civil Rights Law Section 50-a (2) specifically provides that no disclosure of records covered by this section shall be ordered by the Court “without a clear showing of facts sufficient to warrant the judge to request records for review”. No such showing has been made on this motion.

Furthermore, even assuming that neither the public interest privilege nor the statutory limitation applied, the demands are vague and overly broad (see Van Horn v Thompson & Johnson Equip. Co., 291 AD2d 885; CPLR § 3101 [a]).

Claimant’s motion is denied, insofar as it seeks copies of all sexual harassment, abuse, and assault claims from January 1, 2003 to March 10, 2006 at the Marcy Correctional Facility, and copies of all lawsuits filed against Marcy Correctional Facility or its employees from January 1, 2003 to March 10, 2006.



September 29, 2009
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims




[2]. This claim includes allegations that claimant was the victim of a sexual offense. Thus, the claimant is entitled to the privacy protections of Civil Rights Law Section 50-b. As a result, claimant shall not be referred to by name, but shall be identified as “John Doe”.
[3]. While it is not clear from the records before the Court that the investigation has concluded, that fact appears to be presumed by the parties. In the event that the Inspector General has not concluded the investigation or rendered a report, the defendant shall notify the Court and claimant’s counsel, in writing. Obviously, disclosure of materials in an ongoing investigation might well prejudice the public interest. If the report has not been concluded, then, in keeping with the ruling in Shantelle v State of New York, UID No. 2006-030-516, Claim No. 110268, Motion No. M-70538, Feb. 22, 2006, Scuccimarra, J., this disclosure request would be denied at this time, provided however that “at some point after the investigation is complete, and upon a proper showing, the Claimant may renew . . . [his] request for in camera review”.