Opinion
# 2016-044-517 Claim No. 126214 Motion No. M-87890 Motion No. M-87891
03-30-2016
DEVIN C. BOTTOM v. THE STATE OF NEW YORK
DEVIN C. BOTTOM, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Aaron J. Marcus, Assistant Attorney General
Synopsis
Court denied inmate claimant's motion to compel disclosure.
Case information
| UID: | 2016-044-517 |
| Claimant(s): | DEVIN C. BOTTOM |
| Claimant short name: | BOTTOM |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126214 |
| Motion number(s): | M-87890, M-87891 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | DEVIN C. BOTTOM, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Aaron J. Marcus, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 30, 2016 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim to recover for personal injuries allegedly received when he was attacked by a fellow inmate while in the custody of the Department of Corrections and Community Supervision at Elmira Correctional Facility (Elmira). Defendant State of New York (defendant) answered and asserted several affirmative defenses. Claimant now moves in two separate motions to compel disclosure with respect to both a Notice of Interrogatory (the Interrogatory) dated September 7, 2015 (Motion No. M-87890) and a Discovery Request for Production of Documents (the Demand) dated September 7, 2015 (Motion No. M-87891). Defendant opposes the motion. Claimant replies.
Both documents contain a line designated as "Dated: September 7, 2015," and a further line designated "Date: September 21, 2015." The Court will use the earlier date of September 7, 2015.
Claimant's reply was not received until February 25, 2016, more than 10 days after the return date of these motions. However, defendant has not objected to the timeliness of this document and thus the Court will consider the arguments contained therein.
Initially, the Court notes that claimant has not provided an affidavit in support of either of these two motions as required by CPLR 2214 and the Uniform Rules for the Court of Claims [22 NYCRR] § 206.8 (a) (see 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 2214.02; see also Pettus v State of New York, Ct Cl, Mar. 26, 2007, Schaewe, J., Claim No. 112504, Motion No. M-72699). Although claimant's motions could be denied solely on this procedural basis, the Court will not do so, particularly in light of the information contained in the respective notices of motion.
In the notice of motion for Motion No. M-87890, claimant states that he served defendant with 15 interrogatories on September 25, 2015, but asserts that as of November 13, 2015 he had not received any response. Claimant asserts in Motion No. M-87891 that as of November 13, 2015, he has not received any documentation from defendant which pertains to the 15 discovery demands. Defendant has admitted receiving the Interrogatory and the Demand and has attached them as Exhibits A and B to its opposition papers, respectively. Counsel for defendant candidly admits that he should have requested additional time in which to comply with the Interrogatory and the Demand from either the Court or claimant. Counsel has now provided responses to both the Interrogatory and the Demand.
Defendant had 20 days in which to respond to both the Interrogatory and the Demand and to include any objection (stated with reasonable particularity) to the requested discovery (CPLR 3122 [a]; CPLR 3133 [b]). Having failed to respond with its objections in a timely manner, defendant "may [now] resist the [D]emand [and Interrogatory] only upon the grounds that [they] seek[] privileged material or [are] palpably improper" (Briand Parenteau, Inc. v Dean Witter Reynolds, 267 AD2d 576, 577 [3d Dept 1999]). "A disclosure request is palpably improper if it seeks information [which is either] of a confidential and private nature that does not appear to be relevant to the issues in the case" (Titleserv, Inc. v Zenobio, 210 AD2d 314, 315-316 [2d Dept 1994]) or "irrelevant, overbroad and burdensome" (Jefferson v State of New York, 60 AD3d 1215 [3d Dept 2009]). Because defendant has objected to several individual interrogatories and demands on grounds that they are overbroad, unduly burdensome, irrelevant, privileged or confidential, the Court will address the sufficiency of defendant's responses.
Motion No. M-87890
The Court initially notes that defendant has fully responded to Interrogatory Nos. 2, 4, 5, and 6. Claimant has provided no information or argument to the contrary, and the Court accordingly finds that defendant's responses to Interrogatory Nos. 2, 4, 5, and 6 are appropriate.
The Court notes that on February 25, 2016, claimant submitted a document entitled "Response to Defendant's Answers to [his] Interrogatories". In this document, claimant has rewritten the initial interrogatories, presumably in an attempt to clarify some of them (see infra). However, this document was received well after the February 10, 2016 return date and defendant was not authorized to respond in any manner to the revised interrogatories (see CPLR 2214 [b]). Accordingly, the Court will address only the propriety of claimant's initial interrogatories and defendant's corresponding responses.
In Interrogatory No. 1, claimant inquires whether the State is authorized by State and Federal law "to uphold the [claimant's] Eigth [sic] Amendment and Fourtheteenth [sic] Amendment Right of the United States Constitution to keep him free from crul [sic] and unusual punishment with Equal Protection." Defendant stated that it was unable to answer the interrogatory because it was unsure what information claimant was seeking. Defendant then stated that the Eighth Amendment of the U.S. Constitution prohibited the Federal Government from imposing excessive bail or fines, or cruel and unusual punishment and that such prohibition was also applicable to the State. Defendant also indicated that New York State Constitution Article I, Section 5 contains language which essentially mirrors the Eighth Amendment. The Court is also unsure what information claimant is requesting and finds defendant's response to be appropriate.
Affirmation of Assistant Attorney General (AAG) Aaron J. Marcus, dated Feb. 8, 2016, in Opposition to Motion, Exhibit A at 1.
Interrogatory No. 3 asks "[d]o [sic] to the long and consistent history of[] inmate on inmate assault, within the New York State prison institution. Should of [sic] and or had the correctional staff, at Elmira . . . been fully aware and on point, for . . . any current and or future unforeseeable and or foreseeable risk, in which is always most likely to occure [sic], within the prison institution?" Defendant again states that it was unsure what claimant was asking and could not form a response. The Court agrees that claimant's question is somewhat confusing. However, it appears that claimant may be asking whether Elmira's staff should have been able to detect any foreseeable or unforeseeable risks because of the long history of inmate on inmate assaults within the prison setting. This interrogatory is more akin to a notice to admit. Moreover, whether the State should have been aware of a foreseeable risk to claimant is an ultimate issue in this litigation and thus this interrogatory is palpably improper (see e.g. Spawton v James E. Strates Shows, 75 Misc 2d 813, 814 [Sup Ct, Erie County 1973]). The Court finds that defendant is not required to answer Interrogatory No. 3.
Id.
Claimant questions in Interrogatory No. 7 whether defendant has been found liable in other inmate on inmate claims arising out of Elmira which were filed in the Court of Claims. Defendant objected that the interrogatory was improper. The Court finds that whether defendant was liable in other instances of an inmate on inmate assault is irrelevant to the determination of this claim. Accordingly, Interrogatory No. 7 is palpably improper and defendant's response is appropriate.
In Interrogatory No. 8, claimant inquires whether the "medal" detectors at Elmira are 100% accurate in detecting concealed weapons. Defendant indicates that it has no way of answering the interrogatory. The Court finds that this response is proper.
Interrogatory No. 9 asks "[h]ow many suits, had been filed within the State of New York - Court of Claims, in which relief had been awarded on behalf of prisoners/[claimants]. In the past and current history, do [sic] to Elmira . . . Employees . . . acting negligently under the Color of Law, in failing to protect inmates, within its facility from unforeseeable, foreseeable and unreasonable risk and danger from inmate on inmate assaults?" Defendant stated that it was unable to answer the interrogatory because it was unsure what was being asked. The Court agrees this question is jumbled. However, it appears to the Court that claimant is asking how many successful claims concerning inmate on inmate assaults arising at Elmira have been filed. Because the answer is not relevant to the issues in this litigation, the Court finds Interrogatory No. 9 to be palpably improper and defendant need not answer it.
Id. at 2.
Claimant seeks the definition of unforeseeable and unreasonable negligence in Interrogatory No. 10. Defendant objects that the question is improper (and contains oxymoronic language). Defendant's definition of unforeseeable and unreasonable negligence is irrelevant to the issues in this litigation. The Court finds this interrogatory to be palpably improper and defendant is not required to respond to it.
Claimant's Interrogatory No. 11 states that:
[i]sn't it true that, when an inmate had been physically assaulted, by either an unknown and or known inmate, that the actual assault is an actual claim of its own. When there is supporting evidence of substained [sic] injuries to the prisoner/[claimant] that has been set forth and proven, without any shadow of doubt regardless of the State[']s full awareness or not. That under state and federal law, and contract that the State is authorized and trained to be fully aware and on guard, for any and all unforeseeable and or foreseeable risk of danger to protect inmates from inmate assaults, as well as any other unreasonable and or reasonable risk of danger to the security of the facility without failure, in acting negligently and or deliberately indifference under the color of law. While acting within the scope of his/her employment and in the discharge of his/her duties?
Defendant responds that it is unable to answer because it is unsure of what is being asked. The Court agrees that this interrogatory is confusing. Nevertheless, to the extent that claimant is asking whether the fact that an inmate may have been previously assaulted is sufficient to put defendant on notice of foreseeable and unforeseeable risks of danger, this is an ultimate issue in this litigation and thus palpably improper (see e.g. Spawton, 75 Misc 2d at 814). Defendant is not required to further respond to Interrogatory No. 11.
In Interrogatory No. 12, claimant asks if there is any area inside the Elmira Recreation Fieldhouse where there are blindspots from the video cameras. Interrogatory No. 13 seeks the number of video cameras in the Fieldhouse. Interrogatory No. 14 questions what areas and directions each of the cameras record. Defendant objects to Interrogatory Nos. 12, 13, and 14 as posing a threat to the safety and security of the facility. Because such information is generally regarded as sensitive or confidential facility records (see Lowrance v State of New York, 185 AD2d 268, 269 [2d Dept 1992]; Williams v State of New York, UID No. 2011-041-030 [Ct Cl, Milano, J., Sept. 9, 2011]), defendant's responses are appropriate.
Claimant's Interrogatory No. 15 inquires whether there were any successful lawsuits commenced against defendant alleging that Elmira staff promoted inmate on inmate assaults by allowing inmates to physically attack and assault another inmate due to a personal grudge or retaliation of correction officers. Defendant objects to this interrogatory stating that it is unsure of what claimant is requesting. The Court finds that although this interrogatory is inartfully drawn, it appears that claimant is questioning whether any claimants were successful in their actions to recover for injuries resulting from situations in which the staff may have purposely allowed inmate on inmate assaults to occur. However, Interrogatory No. 15 is palpably improper because whether any such lawsuits have been filed against defendant is not relevant to the issues in this litigation. Accordingly, defendant is not required to answer this interrogatory.
Defendant has fully responded to Interrogatory Nos. 2, 4, 5, and 6. Defendant is unable to answer Interrogatory No. 8 and its response thereto is proper. The Court finds that Interrogatory Nos. 1 and 11 are confusing and defendant is not required to answer them. Further, Interrogatory Nos. 3, 7, 9, 10, 12, 13, 14, and 15 are palpably improper and defendant is not required to provide any further responses. Accordingly, Motion No. M-87890 to compel responses to the Interrogatory is denied.
Motion No. M-87891
The Court notes that in Motion No. M-87891, defendant has fully responded to Demand Nos. 4, 12, 13, 14, and 15. Claimant has provided no information or argument to the contrary, and the Court accordingly finds that defendant's responses to Demand Nos. 4, 12, 13, 14, and 15 are appropriate.
Claimant did submit a document entitled "Objections to Defendant's Refusal to Produce . . . Documents" in which he has revised the demands in an attempt to clarify some of them in the same manner as he did with respect to the interrogatories (see n 3 supra). However, this documents was also received well after the February 10, 2016 return date and defendant was not authorized to respond in any manner to the revised demands (CPLR 2214 [b]). Accordingly, the Court will address only the propriety of claimant's initial demands and defendant's corresponding responses.
In Demand No. 1, claimant requests documents of the history of negligence actions which were based upon the alleged failure of Elmira staff to protect inmates from being assaulted by other inmates. Demand No. 2 seeks documents concerning the history of inmates being assaulted by other inmates in Elmira's fieldhouse. Demand No. 3 requests documents pertaining to the history of weapons found in Elmira's fieldhouse. Defendant has objected to production of documents responsive to these three demands as being overly broad and unduly burdensome. The Court agrees that the demands on their face would require review and potentially production of voluminous amounts of documentation. Moreover, in order to establish that the State is liable for an inmate on inmate assault, an inmate claimant must allege and prove that the State knew or should have known that there was a risk of harm to the claimant which was reasonably foreseeable and which the State could have prevented (Sanchez v State of New York, 99 NY2d 247, 253 [2002]; see also Flaherty v State of New York, 296 NY 342, 347 [1947]). The mere fact that weapons may have been recovered and assaults may have occurred in the fieldhouse is not relevant to establishing that defendant knew or should have known that claimant was at risk to be assaulted. Accordingly, defendant's responses to Demand Nos. 1, 2, and 3 are appropriate.
Demands Nos. 5-11 request the following photographs: the inside of the fieldhouse; both outside and inside of the correction officers' video surveillance booth; both outside and inside of the correction officers' watch booth; all of the correction officers' designated posts; and the metal detector and boss chair metal detector. Defendant objects to the production of all requested photographs on the basis that disclosure of such would compromise the safety and security of the facility. The Court finds that disclosure of photographs of the surveillance and watch booths as well as designated office posts could compromise the safety and security of the facility. Although the Court cannot determine whether photographs of the inside of the fieldhouse or the metal detector and/or boss chair metal detector would affect the security of the facility, these photographs are not relevant to establishing whether claimant's assault by two unknown assailants was or should have been reasonably foreseeable to defendant. Accordingly, defendant is not required to produce any of the photographs requested in Demand Nos. 5-11.
Defendant has fully responded to Demand Nos. 4, 12, 13, 14 and 15. Demand Nos. 1, 2, and 3 are unduly burdensome and defendant's responses are appropriate. Because claimant's Demand Nos. 5-11 seek confidential and/or irrelevant documentation, they are palpably improper and defendant is not required to respond. Accordingly, claimant's Motion No. M-87891 to compel responses to the document demands is denied.
In conclusion, claimant's Motion Nos. M-87890 and M-87891 to compel disclosure are denied in their entirety.
March 30, 2016
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on claimant's motions: 1) Notice of Motion (Motion No. M-87890) filed on December 16, 2015. 2) Notice of Motion (Motion No. M-87891) filed on December 16, 2015. 3) Affirmation in Opposition of Aaron J. Marcus, AAG, dated February 8, 2016, and attached exhibits. 4) Reply Affidavit of Devin C. Bottom, sworn to on February 19, 2016. Filed papers: Claim filed on May 28, 2015; Verified Answer filed on June 22, 2015.