Opinion
# 2016-018-713 Claim No. 121105 Motion No. M-85512
03-30-2016
MALIK AZ'RAEL MOSBY v. STATE OF NEW YORK
THE LAMA LAW FIRM, LLP By: Luciano L. Lama, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire Senior Attorney, of Counsel
Synopsis
Claimant brought a motion (M-85512) to compel Defendant's responses on previous discovery demands, to which Defendant objected. The Court directed Defendant to provide certain information in camera. This Decision and Order directs what information shall be disclosed, upon the execution of a confidentiality agreement. Claimant's motion is granted on the issues unresolved by this Court's Decision and Order dated Oct. 27, 2014, only to the extent set forth herein.
Case information
| UID: | 2016-018-713 |
| Claimant(s): | MALIK AZ'RAEL MOSBY |
| Claimant short name: | MOSBY |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121105 |
| Motion number(s): | M-85512 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | THE LAMA LAW FIRM, LLP By: Luciano L. Lama, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire Senior Attorney, of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | March 30, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, pro se, filed a claim on March 29, 2012, seeking damages for the State's alleged improper placement of Claimant in a double-bunk cell because of his asserted vulnerability due to a back injury and his assignment of a bunk cell mate who was allegedly psychotic with a history of assaults. Claimant was seriously injured when Inmate Jones, his bunk cell mate, allegedly attacked him on April 16, 2011. Claimant also alleges in the claim that he did not receive proper medical care.
Claimant served a discovery demand filed with the Clerk of the Court on August 7, 2014, seeking various documents and information. Defendant objected to several of the demanded documents asserting privilege. Claimant brought a motion (M-85512) pro se, to compel Defendant's responses. On November 26, 2014, a Decision and Order was filed.
Claimant has since retained counsel evidenced by letter dated November 2, 2015, from Luciano L. Lama, Esquire (Court file).
After reviewing all of the submissions on the motion, the Court directed Defendant to provide certain information in camera. Specifically, Defendant was directed to provide in camera:
1. Sentencing minutes for the crime for which Inmate Jones was incarcerated;
2. The OMH classification status of Inmate Jones at the time he was assigned to share a cell with Claimant, and within a month before the assault upon Claimant;
3. Inmate Jones' criminal history;
4. The disciplinary history and reports of prior assaults or violence of Inmate Jones for the three years prior to the assault upon Claimant;
5. Disclosure of any memoranda or other documentation relating to the formulation of Directive 4003, section 1701.5 [c] [4] [iii] or other directive used to determine inmates' suitability for double-cell housing;
6. Photographs relating to the assault upon Claimant on April 16, 2011, by Inmate Jones.
Defendant has complied with the Court's direction in its prior Decision and Order and provided a number of documents to the Court in camera. The Court will initially identify the information Defendant has provided:
Exhibit A- The sentencing minutes for Inmate Jones from March 16, 2000;
Exhibit B- New York State Department of Correctional Services Double Cell Information Sheet dated March 18, 2011, for Inmate Jones;
The Department of Correctional Services name was changed to the Department of Corrections and Community Supervision in April 2011. --------
Exhibit C- Inmate Jones' Security Classification;
Exhibit D- Inmate Jones' criminal history;
Exhibit E- Inmate Jones' disciplinary history;
Exhibit F- (F1) Directive 4003 (§ 1701.1) dated 12/24/1998 entitled "Double Cell Housing in Converted Single Cells;"
(F2) Revisions to the Directive from 8/30/2000;
(F3) Revisions to the Directive from 8/20/2002;
(F4) Revisions to the Directive from 3/23/2004;
(F5) Revisions to the Directive from 4/29/2008;
(F6) State Commission of Correction reasoning/purpose in the NYS Register from August 9, 1993, relating to the adoption/ amendment to 9 NYCRR 7621.5, 7621.6, 7621.7, 7621.8, and 7621.9;
(F7) Department of Correctional Services, NYS Register from July 9, 1997, relating to the addition of part 1701 and Appendices I-I and I-J of Title 9 NYCRR;
(F8) Department of Correctional Services, NYS Register from September 3, 1997, relating to the addition of Part 1701 and Appendices I-I and I-J to 7 NYCRR;
(F9) Department of Correctional Services, NYS Register from June 27, 2001, for the proposed amendment of section 1701.4 (a) and 1701.9 and repeal of section 1701.5 (d) (10) of 7 NYCRR;
(F10) Department of Correctional Services in NYS Register from September 5, 2001, for the proposed amendment of 7 NYCRR section 1701.4 (a), 1701.9 and repeal section 1701.5 (d) (10);
(F11) Department of Correctional Services, NYS Register from May 1, 2002, for the proposed addition of section 1701.5 (f) to 7 NYCRR;
(F12) Department of Correctional Services, NYS Register from January 14, 2004, for the proposed amendment of section of 7 NYCRR 1701.5 (c) (6) (I);
(F13) Department of Correctional Services, NYS Register from March 31, 2004, for the amendment of section 1701.5 (c) (6) (I) of 7 NYCRR;
Exhibit G- (G A) New York State Department of Correctional Services Guidelines for Double Cell Housing;
(G B) February 29, 1996 Letter from Deputy Commissioner Glenn S. Goord to all superintendents about a "good record;"
(G C) Memos with suggested changes to the initial drafting of Directive 4003;
Defendant argues that these documents are protected by the "deliberative privilege" under Public Officers Law section 87 (2) (g) and if the documents are to be released that Claimant be required to sign a confidentiality agreement;
Exhibit H- Affidavit of Glenn S. Goord, in support of Defendant's summary judgment motion in Jones v Goord, 95 Civ. 8026, from December 18, 2003, with exhibits. The Assistant Attorney General indicates that he believes the affidavit was filed under seal and requests that Claimant be required to sign a confidentiality agreement if the affidavit is to be released;
Exhibit I- Affidavit of Lucien J. Leclaire, Jr. in support of Defendant's summary judgment motion in Jones v Goord, 95 Civ. 8026. The Assistant Attorney General objects to the release of this information arguing it is dated, irrelevant to this proceeding and contains the intra-agency opinions/communications subject to the deliberative privilege which are exempt under Public Officers Law section 87 (2) (g);
Exhibit J- Transcript of the May 12, 1997 testimony of Philip Coombe, Jr., Acting Commissioner of the Department of Correctional Services, before the Honorable Sidney H. Stein, District Court Judge, Southern District of New York in Solton, et al v Goord, 95 CV 3768 (SHS). Defendant also objects to the release of this information on the grounds that it is irrelevant, dated, and contains intra agency opinions/communications which are privileged and exempt under Public Officers Law section 87 (2) (g).
For purposes of review, Claimant's demands for this discovery were made under CPLR Article 31. CPLR 3101 governs discovery and provides 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." The only exceptions to disclosure are privileged matter and attorney work product, which are completely exempt, and materials prepared for litigation, which are conditionally exempt (CPLR 3101 [b], [c], [d], [2]).
After reviewing the documents only a few contain information that is relevant and material to this action and subject to Claimant's disclosure demand. Based upon this in camera review, only the following items should be disclosed:
1. Exhibit B, Inmate Jones' Double Cell Information Sheet from March 18, 2011, redacting reference to his mental health level, health services level, his height, weight, and date of birth;
2. Exhibit E, Inmate Jones' Disciplinary history from incidents that occurred on 3/2/2011 and 5/8/2009, printout, findings and punishment from the disciplinary hearings and the inmate misbehavior reports for both incidents. All injury reports, references to any medical treatment, internal memoranda, pictures and all references to inmates names, and DIN numbers (other than Claimant or Inmate Jones) should be redacted;
3. Exhibit F should be provided in its entirety, as it provides the original form of the Directive for Double Cell Housing in Converted Single Cells, all amendments and revisions thereto and the information published in the New York State Registrar relating to the adoption, amendments, and revisions. No privilege prohibits the disclosure of this public information;
4. Exhibit G, (G A) dated June 26, 1995, entitled "New York State Department of Correctional Services Guidelines for Double Cell Housing";
5. Exhibit I, Lucien J. Leclaire, Jr., affidavit, pages 22-23, paragraph 28; pages 26-27, paragraph 34; page 33, paragraph 44; page 34, paragraph 46; page 37, paragraph 52;
6. Exhibit J, transcript of Acting Commissioner Philip Coombe, Jr's testimony page 672, lines 22-25; page 673, lines 1-8; page 681, lines 22-25; page 682, lines 1-19; and page 759, lines 8-22.
The Court finds that despite Defendant's arguments that the documents in Exhibits G, I, and J, listed in paragraph 4, 5, and 6 above, are protected by the "deliberative privilege" under Public Officers Law section 87 (2) (g), these documents have not been shown to be privileged. Public Officers Law section 87 (2) (g) protects inter-agency or intra-agency materials which are not (i) statistical or factual tabulations or data, (ii) instructions to staff that affect the public, or (iii) final agency policy or determination. It appears that Exhibit GA is the final agency policy for double cell housing as of June 26, 1995, the affidavit of Mr. Leclaire, Exhibit H, was submitted to the federal court for other litigation, and Exhibit J is the transcript of the open court testimony of the then acting commissioner. These documents are not inter or intra-agency documents and do not implicate confidential communications between public officers (see CPLR 3101[b]; Public Officers Law § 87 [2] [g]; Cirale v 80 Pine St. Corp., 35 NY2d 113, 118-119 [1974]; Clark-Fitzpatrick, Inc. v State of New York, 209 AD2d 572 [2d Department 1994]; Matter of Rome Sentinel Co. v City of Rome, 174 AD2d 1005 [4th Dept 1991]).
Defendant does request that if any of the documents are released that the release be subject to a confidentiality agreement. Although not privileged, the Court finds given the nature of this information, that it is appropriate to condition the release of these documents (paragraphs 1, 2, 4, 5, and 6) upon the execution of a confidentiality agreement.
The other documents Defendant submitted for in camera review, the Court finds do not need to be released because there is no relevant information responsive to Claimant's demand. The sentencing minutes (Exhibit A) have no relevant information. The mental health level, health status level, and physical characteristics of Inmate Jones are not implicated by Directive 4003. Inmate Jones' criminal history for 20 years before this incident involved no violent crimes. Other documents in Exhibits G-J are not relevant or material to Claimant's demand.
Accordingly, Claimant's motion is GRANTED on the issues unresolved by this Court's Decision and Order dated October 27, 2014, only to the extent set forth here in this Decision and Order.
March 30, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims