Opinion
# 2012-049-035 Claim No. 119691 Motion No. M-81856
07-25-2012
AMAKER v. THE STATE OF NEW YORK
Synopsis Case information
UID: 2012-049-035 Claimant(s): ANTHONY D. AMAKER Claimant short name: AMAKER Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119691 Motion number(s): M-81856 Cross-motion number(s): Judge: David A. Weinstein Claimant's attorney: Anthony D. Amaker, Pro Se Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Roberto Barbosa, Assistant Attorney General Third-party defendant's attorney: Signature date: July 25, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Anthony D. Amaker, an inmate appearing pro se, filed a claim on April 4, 2011 alleging that, on November 1, 2010, he received property that had been stored at Southport Correctional Facility ("Southport")and discovered that numerous items were lost or damaged. Specifically, he contends that 22 $0.44 stamps and various pieces of clothing were missing, and a radio/cassette player was broken. In addition, he accuses Correction Officer Paul Jayne of "sabotag[ing]" his typewriter, and taking 14 magazines. The matter is scheduled for trial on August 3, 2012.
It appears that Amaker received such property after he was transferred to Attica Correctional Facility ("Attica") (See Aff. in Opp. ¶ 4).
Claimant now moves to compel production of certain documents. The motion arises out of a request for documents served by Amaker on defendant, and dated May 14, 2011. Items 1 through 4 of that request sought: (1) an Investigative Report prepared in response to an Institutional Claim filed by Amaker; (2) certain receipts Amaker provided to Ms. Hartmann at Attica on December 2, 2010; (3) a disposal of property authorization form dated October 26, 2010; and (4) disbursement forms signed by claimant on October 26, 2010. Defendant served a reply dated June 27, 2011, which indicated that documents responsive to Requests 1, 3 and 4 were contained in the Investigative Report sought by Claimant's Request 1. The reply also indicated that the receipts referenced in Request 2 had been returned to claimant on December 6, 2010, and that this fact was set forth in the Investigative Report. Defendant offered to make the 26-page Report available to claimant, provided he paid reproduction costs of $ 0.25 per page, or a total of $6.50.
In regard to three other requests (Nos. 5, 9 and 10), which sought copies of I-64 forms for property transferred from Elmira to Southport from February 15 through May 13, 2010 (No. 5), and forms and receipts relating to the mailing of certain books and magazines on May 14, 2010 (Nos. 9 and 10), defendant indicated that it was "ascertaining whether these documents exist." By supplemental reply dated April 9, 2012, defendant stated that it had no documents responsive to these requests.
As to the remaining three items in claimant's request (Nos. 6, 7 and 8) defendant objected on the grounds that the requests were overbroad, unduly burdensome, vague and ambiguous. These requests are addressed in more detail below.
By motion filed July 5, 2012,Amaker seeks to compel production of "all discovery" demanded in his document request. The basis for Amaker's motion is (1) defendant has not provided him with any documents; and (2) the 30 days for such production since he filed his request has passed. The motion does not address any of the objections interposed by defendant, or defendant's offer to make 26 responsive pages available upon payment of $6.50 in costs.
The motion is dated June 14, 2012, but was not received by this Court until July 5.
On July 11, 2012, defendant submitted the affirmation of an Assistant Attorney General in opposition to claimant's motion. The affirmation noted that the State had offered to make responsive documents available, but claimant has not proffered the requisite payment. Further, defendant argues that its objection to claimant's Requests 6, 7 and 8 were valid, as those requests sought information not relevant to the claim, and Request 8 is "open-ended" and therefore unduly burdensome.
DiscussionCPLR 3101(a) provides for "full disclosure of all matter material and necessary in the prosecution or defense of an action." While this provision is to be interpreted liberally in favor of disclosure (M&T Bank Corp. v Gemstone CDO VII, Ltd., 78 AD3d 1664 [4th Dept 2010]), the statute does not "give a party the right to uncontrolled and unfettered disclosure" (Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531 [2d Dept 2007]). In particular, a party may be denied the information sought where the demand is unduly burdensome, and not "reasonably calculated" to lead to evidence material and necessary to the action (see Van Horn v Thompson & Johnson Equip. Co., 291 AD2d 885, 885-886 [4th Dept 2002]).
Applying these standards to Requests 6, 7 and 8, I find that defendant's objections are well-founded.
Claimant's Request 6 sought "[c]opies of all package room receipts showing and all [sic] additional property received between February 15, 2010 to October 26, 2010 showing and all [sic] increases in personal property." It is not clear what the terms "additional property" or "increases in personal property" mean, and whether they apply to a particular facility, or to the New York State prison system as a whole. In any case, it would clearly impose an extraordinary burden on the State to review all "receipts" even at one facility, to determine whether they fell within these uncertain categories. Further, it is unclear what the relevance of such documents, which would encompass numerous items held by other inmates, might be to the specific property claim at issue.
Claimant's Request 7 sought "[a]ll copies of incoming property inventory concerning all magazines, books, allowe[d] in SHU on February 17 and June 17, 2010, or around those dates."
Again, this request is overly broad and highly burdensome.It is not clear why documents relating to magazines and books received by other inmates would be relevant to Amaker's present claim, and the far-reaching search through records of all property allowed into the SHU that this request would entail, so as to determine which fell within the ambit of this request, is unlikely to lead to evidence material and necessary to claimant's action.
The reason for Amaker's focus on the dates referenced in the request, and why documents concerning materials allowed into the SHU on those particular dates might be relevant to his claim, is not disclosed in the record before me.
Notwithstanding that it had interposed valid objections, defendant's responses to Requests 6 and 7 further stated that it would continue to ascertain whether any such documents exist. Defendant's submission in opposition to the present motion states that "defendant sought to ascertain whether other available documents, e.g., facility claims investigation reports or grievances, contained information that would be responsive to these demands. Unfortunately, defendant was not able to identify any documents responsive to these demands." A motion to compel must be denied where "the record is devoid of any evidence that defendant has access to or is withholding any of the requested documents," since "a party cannot be compelled to produce documents that do not exist" (Mary Imogene Bassett Hosp. v Cannon Design, Inc., __ AD3d __, 2012 NY Slip Op 05697 *3 [3d Dept 2012]). There is no evidence rebutting the State's assertion that it has looked for, and has not found, documents that are both responsive to these requests and relevant to the present action.
Finally, Request Number 8 seeks "[t]he number of complaints filed and claims against Southport C.F. draftroom staff with the names of those whom property was mishandled, stolen, and denied by C.O. Jayne and others." This request is extremely ambiguous, would be burdensome to address and is essentially irrelevant. It is not clear who is included within "draftroom staff," and why the number of complaints made against them - regardless of their substantiation - would be of any probative value in regard to the present case. Moreover, such a request is both vague (as it is unclear which "others" are the subject of this request), and overly broad.
In any event, information on grievances against Officer Jayne is protected against disclosure by Civil Rights Law § 50-a (see Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Correctional Servs., 73 NY2d 26 [1988]). While such documents containing such information may be produced under court order following a hearing and an in camera inspection, or on written consent, no such undertaking would be warranted here. The only apparent relevance of such complaints would be to demonstrate that Jayne acted wrongly in the past, and therefore acted wrongly here. Since the Court may draw no such inference (see Medina v State of New York, UID No. 2004-032-045 [Ct Cl, Hard, J., June 14, 2004]; Davis v State of New York, UID No. 2007-044-559 [Ct Cl, Schaewe, J., Aug. 7, 2007]), it would be inappropriate to sanction a fishing expedition into unproven allegations of prior misconduct unrelated to the present litigation (see Davis, supra [denying motion to compel production of prisoner grievances against correction officer; conclusory allegation that such grievances exist "is not, as a matter of law, a clear showing of facts sufficient to warrant this Court to request these records for review"]).
Granting appropriate leeway to a pro se litigant, the State is not required to guess at the meaning of claimant's requests, or to undertake the burdensome and extensive review that would be required to respond if the requests described above are read literally. Moreover, claimant was sent the State's objections to his requests over a year ago. He made no response thereto, nor did he seek to limit his requests, and he has made no showing on his present motion that responsive and relevant documents are in defendant's possession but have not been produced. Under these circumstances, there is no basis to compel any disclosure in response to Requests 6, 7 and 8.
Nor is there a basis for compelling additional production in response to claimant's other requests. As to the documents which defendant has identified in response to Requests 1 through 4, defendant has offered to make them available once its costs for doing so have been reimbursed. A prisoner is not entitled to photocopying of litigation documents at the State's expense (see Gittens v State of New York, 175 AD2d 530 [3d Dept 1991]), and Amaker does not deny that he has failed to pay the costs identified by the State. Since the State's demand for reimbursement for expenses related to duplication and production of these documents was appropriate, there is no basis for the Court to compel their production for free in response to the present motion(see Brabham v State of New York, UID No. 2006-041-004 [Ct Cl, Milano, J., Sept. 22, 2006] [denying motion to compel production of documents as to which claimant had not met State's reimbursement demand, except as to certain records whose production is governed by the Public Health Law]).
In Brabham, the Court noted that claimant was not entitled to poor person status, and that even had such status been granted, it was "unlikely" he could obtain duplication of documents without payment. As in Brabham, claimant here is not proceeding in forma pauperis.
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I note, however, that the State has acknowledged the possession of 26 pages of documents relevant to the present matter, which claimant may seek to introduce at trial, without the need for the State to bear any expense for reproduction or otherwise. Therefore, the Court directs the State to have available at trial the documents it has withheld pending reimbursement of duplication expenses. The Court will entertain any application by claimant to make use of such documents at trial, and will consider any objections defendant may have in response thereto.
Finally, as to Requests 5, 9 and 10, claimant has failed to provide evidence that any responsive documents exist in regard to those requests. As noted above, the Court cannot order production of documents without reason to believe defendant has them.
In light of the foregoing, claimant's motion is denied, except that the State is directed to have those documents it has identified as responsive to claimant's requests available at trial, which documents shall be subject to such further rulings as the Court may issue.
SO ORDERED.
July 25, 2012
Albany, New York
David A. Weinstein
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion to Compel Discovery, and Affidavit in Support.
2. Defendant's Affirmation in Opposition to Claimant's Motion to Compel Discovery, and annexed exhibit.