In a claim alleging inmate-on-inmate assault, claimant's motion to compel production of an alleged assailant's disciplinary history granted in part. Claimant was entitled only to discovery of the alleged assailant's disciplinary history showing discipline for prior assaultive acts.
|Claimant short name:||JACOBS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||O'BRIEN & FORD, P.C.
By: Christopher M. Pannozzo, Esq.
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Thomas J. Reilly, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 18, 2021|
|See also (multicaptioned case)|
This claim alleges that claimant was assaulted by inmates at Clinton Correctional Facility (CF) in August 2017. By Decision and Order dated January 25, 2021, this Court granted in part claimant's motion to compel the disclosure of documents and held in abeyance that part of claimant's motion to compel the disclosure of the disciplinary records of inmate Lapan - claimant's alleged assailant - pending the Court's in camera review of Lapan's disciplinary history. Defendant submitted Lapan's disciplinary history for in camera review on January 29, 2021.(1)
"Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates" (Sanchez v State of New York, 99 NY2d 247, 252-253 ; see Vasquez v State of New York, 68 AD3d 1275, 1276 [3d Dept 2009]). In negligence claims against the State for inmate-on-inmate attacks, the scope of the State's duty of care is to provide "reasonable protection against foreseeable risks of attack by other prisoners" (Sebastiano v State of New York, 112 AD2d 562, 564 [3d Dept 1985] [emphasis added]; see Sanchez, 99 NY2d at 253; Dizak v State of New York, 124 AD2d 329, 330 [3d Dept 1986]). Foreseeability in such cases includes not only what the State actually knew about the risk of an attack on the claimant, but also what it "reasonably should have known - for example, from its knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks" (Sanchez, 99 NY2d at 254 [emphasis in original]; Vasquez, 68 AD3d at 1276). An inmate-on-inmate assault may be foreseeable where defendant knew or reasonably should have known that the claimant's attacker was violent or prone to assaultive behavior (see e.g. Littlejohn v State of New York, 218 AD2d 833, 834-835 [3d Dept 1995]).
As previously noted in the Court's January 25, 2021 Decision and Order, "it is manifest that Lapan's disciplinary history is relevant to the prosecution of his claim to the extent that he was previously disciplined for prior assaultive acts" (Jacobs v State of New York, UID No. 2021-038-510 [Ct Cl, DeBow, J, Jan. 25, 2021]). With this in mind, and after reviewing Lapan's disciplinary history in camera, the Court orders the disclosure of the following entries from Lapan's disciplinary history: (1) the Tier 2 hearing on charges concerning the incident that occurred on February 3, 2014; and (2) the Tier 3 hearing on charges concerning the incident that occurred on July 15, 2013. All other entries in Lapan's disciplinary history lack relevance to proving that Lapan had a prior assaultive history, and thus disclosure of those entries will not be compelled.
Accordingly, it is
ORDERED, that that part of claimant's motion number M-96238 that seeks disclosure of inmate Lapan's disciplinary history, as requested by Demand Number 7 in claimant's January 23, 2019 Notice to Produce, is hereby GRANTED IN PART to the extent that defendant is ordered to produce the following entries from Lapan's disciplinary history: (1) the Tier 2 hearing on charges concerning the incident that occurred on February 3, 2014; and (2) the Tier 3 hearing on charges concerning the incident that occurred on July 15, 2013; and it is further
ORDERED, that that part of claimant's motion number M-96238 that seeks disclosure of inmate Lapan's disciplinary history, as requested by Demand Number 7 in claimant's January 23, 2019 Notice to Produce, is DENIED in all other respects.
March 18, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Notice of Motion to Compel, dated December 8, 2020;
(2) Affidavit of Christopher M. Pannozzo, Esq., sworn to December 8, 2020, with Exhibits A-J;
(3) Affirmation of Thomas J. Reilly, AAG, in Opposition, dated January 13, 2021, with Exhibits
(4) Preliminary Conference Order, "So Ordered" by the Hon. W. Brooks DeBow, Judge of the
Court of Claims, January 30, 2019;
(5) Decision and Order in Jacobs v State of New York, UID No. 2021-038-510 (Ct Cl, DeBow,
J., January 25, 2021);
(6) E-mail correspondence of Thomas J. Reilly, AAG, dated January 29, 2021, with In Camera
(7) "So Ordered" Correspondence of the Hon. W. Brooks DeBow, Judge of the Court of Claims,
dated February 1, 2021.
1. Defendant also submitted other documentation concerning Lapan's incarceration (see Reilly E-mail Correspondence, dated Jan. 29, 2021, with In Camera Submission). By "So Ordered" Correspondence dated February 1, 2021, the Court stated that it would only conduct an in camera review of Lapan's disciplinary history, and that it would not review the other documentation, and that to the extent that the other documentation were "responsive to any other demands that the Court ordered disclosure, subject to a motion for a protective order, [defendant was] directed to either produce the documents or move for a protective order in accordance with the Court's January 25, 2021 Decision and Order" ("So Ordered" Correspondence of the Hon. W. Brooks DeBow, Judge of the Court of Claims, dated Feb. 1, 2021).