Motion to compel discovery by inmate claimant proceeding pro se granted in part. Assault cause of action asserted in claim because of the use of excessive force by correction officers. No review of personnel file based on showing made on motion, but without prejudice to further application. Court to review copy of directive defendant indicates prohibits disclosure of policy and procedure manual as it concerns required conduct for the use of force, as well as table of contents to policy and procedure manual, in camera.
|Claimant short name:||TOWNSEND|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||LARRY TOWNSEND, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||January 5, 2010|
|See also (multicaptioned case)|
The following papers were read and considered on claimant's motion to compel discovery:
1-4 Notice of Motion to Compel Discovery and Inspection; Claimant's Demand for Discovery and Inspection; Affidavit in Support of Motion to Compel Discovery and Inspection by Larry Townsend, claimant; Affidavit of Service
5 Affirmation in Opposition to Motion to Compel Discovery and Inspection by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits
6 Letter to Court from Claimant dated December 3, 2009
7,8 Filed Papers: Claim, Answer
Larry Townsend, an incarcerated inmate proceeding pro se, alleges in Claim number 116484 that on January 26, 2009 he was assaulted by a correction officer at Green Haven Correctional Facility during his regular transport for medical treatment at an outside hospital, and suffered physical injuries. Specifically, claimant alleges that when he advised Correction Officer J. Rodriguez - an officer who had not escorted claimant in the past - that claimant's daily medication was available only at the second floor infirmary at the early hour designated for the transport to Mount Vernon Hospital, the officer "slammed Claimant's head into the concrete wall" and thereafter punched claimant in the face with a closed fist. [Claim Number 116484, ¶4 (b) and (c)]. Claimant alleges that the injuries suffered due to this allegedly unprovoked assault include "a hair-line crack to his skull, a fractured nose, and a broken or busted knee cap." [Ibid. ¶5].
In its answer, in addition to general denials, the defendant raises seven affirmative defenses, including lack of verification, claimant's own culpable conduct, conduct by the correction officer outside the scope of his employment, assumption of risk, immunity for privileged discretionary determinations, contribution or indemnification, and collateral source.
Civil Practice Law and Rules §3101, setting forth the scope of disclosure in a civil case and applicable in the Court of Claims [see Court of Claims Act §9(9)], provides in pertinent part that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof . . ."
When a party fails to respond in some fashion to a demand, the other party may make a motion to compel such as this one. Civil Practice Law and Rules §§3124, 3126. The party making the motion should append a copy of the demand at issue. Notably, disclosure demands - which are by nature documents served on another party - are required to be filed with the Chief Clerk of the Court of Claims. See 22 NYCRR §206.5(c).
Claimant now moves to compel discovery and inspection in conformance with a demand for same filed simultaneously with the motion. He seeks a copy of the correction officer's personnel record, copies of any reports filed in connection with the subject assault including any unusual incident reports and use of force reports, copies of medical records related to claimant's treatment for the subject incident, a copy of the daily log book entries for the first floor clinic at Green Haven on January 26, 2009, and copies of the procedures for use of force. He also seeks the correction officer's full name and shield number, the names of the nurse, doctor and technician who examined and treated claimant on January 26, 2009 and the names and addresses of any witnesses defendant intends to produce at the trial of the matter. In an affidavit submitted in support of this motion, claimant states that a demand for discovery and inspection was served on defendant on May 29, 2009, attaches a copy of same, and indicates that no response has been made.
In the affirmation in opposition to the motion, while acknowledging receipt of a Demand for Discovery and Inspection on May 28, 2009 and again on October 6, 2009, the assistant attorney general indicates that defendant was not served with the present motion, and only received a copy from the Clerk's Office upon defendant's request for same. [Affirmation in Opposition to Motion to Compel Discovery and Inspection, ¶¶ 3, 4, 5]. Defendant argues that denial of the motion is warranted on this ground alone. [Ibid. ¶ 4]. Defendant also argues that claimant is not entitled to the requested personnel records under Civil Rights Law §50-a, that the request for "any and all records" is "palpably improper," and that claimant is not entitled to copies of "directives promulgated by the Department of Correctional Services and the proper challenge would be in the form of an Article 78 proceeding." [Ibid. ¶3].
In a prison setting - unlike in other arenas - physical force may be allowed against an inmate if it is not excessive within statutory, regulatory and attendant case law parameters. The statute provides in pertinent part ". . . [w]hen any inmate . . . shall offer violence to any person, . . . or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline, [and] to secure the persons of the offenders . . ." Correction Law § 137(5). As set forth at 7 NYCRR § 251-1.2 (a), an officer must use ". . . [t]he greatest caution and conservative judgment . . . in determining . . . whether physical force is necessary; and . . . the degree of such force that is necessary." Once an officer determines that physical force must be used, ". . . only such degree of force as is reasonably required shall be used." 7 NYCRR § 251-1.2(b). The state may be liable for the use of excessive force by its employee under the concept of respondeat superior. See Jones v State of New York, 33 NY2d 275, 280 (1973).
Defendant correctly notes that the motion could be denied because claimant failed to serve defendant with a copy of the motion, however given defendant's responses to the discovery requests, receipt of the motion by other means, and implied acknowledgment of a failure to timely respond to consent discovery demands, the issue is moot.
Additionally, defendant also argues correctly that claimant has not established entitlement to discovery of the alleged assailant's personnel records pursuant to Civil Rights Law §50-a. Civil Rights Law § 50-a states in pertinent part the following:
"1. All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof . . . shall be considered confidential and not subject to inspection or review without the express written consent of such police 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."
Claimant is required to "offer, 'in good faith . . . some factual predicate' for providing access to the personnel files . . . (citations omitted)" sufficient to warrant even the minimal intrusion of in camera review. Zarn v City of New York, 198 AD2d 220 (2d Dept 1993)(1) ; see also Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833 (3d Dept 2001, lv denied 96 NY2d 710 (2001)(2) . "This threshold requirement is designed to eliminate fishing expeditions into police officers' personnel files for collateral materials to be used for impeachment purposes . . . (citations omitted)." Zarn v City of New York, supra at 220-221; see also Parker v State of New York, UID # 2003-032-081, Claim No. 105753, Motion Nos. M-66789, CM-66854 (August 20, 2003, Hard, J.). Based upon the cause of action asserted in the claim - assault based upon a use of prohibited excessive force [see Correction Law §137(5)](3) - it is difficult to see how a wholesale examination of the correction officer's personnel file - even an initial examination in camera - is warranted, under the applicable disclosure standards. Based upon the defense asserted in the answer, however, wherein it is denied that the officer was acting in the scope of his employment when force of some degree and kind was used with respect to this claimant, in camera review might be warranted upon proper notice to the correction officer and upon a proper showing. Thus this request is denied without prejudice.
In a similar vein, defendant indicates that "pursuant to DOCS Directive 0001 Introduction to the Policy and Procedure Manual" "copies of the procedure for the use of force" "cannot be disclosed", while the answer contains a defense to the effect that the officer's conduct is immunized based upon following such procedures and exercising discretion therefrom. [Affirmation in Opposition to Motion to Compel Discovery and Inspection, ¶13]. No copy of the prohibiting directive is provided. Additionally, inherent in the cause of action against the State of New York is an alleged failure to follow its own regulations with regard to the use of force. Such information is likely material and relevant to the prosecution and defense of the claim. In recognition of the potential security issues, however, defendant is directed to produce a certified, paginated, copy of the facility procedures to be followed when force is used for in camera inspection, together with a privilege log as to any privileges defendant maintains are applicable, within forty (40) days of the filing date of this decision and order.
With regard to the balance of claimant's demands, defendant has either produced the requested documents, or adequately established that such demands are overbroad or outside the scope of discovery.
Based on the foregoing, claimant's motion is denied in part and granted in part as provided.
January 5, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. In context of widow's wrongful death action against the city after suicide death of her husband, no showing made that personnel record or career of police officer who witnessed suicide related to the suicide death.
2. Petitioner failed to show how personnel records of officer are relevant to his claims of improper conduct during the petitioner's criminal trial. Any cause of action against the officer or the municipality employing him also time barred.
3. "No inmate in the care or custody of the department shall be subjected to degrading treatment, and no officer or other employee of the department shall inflict any blows whatever upon any inmate. . ."