Opinion
# 2017-040-144 Claim No. 126980 Motion No. M-90686
12-11-2017
R.S. and E.A. v. THE STATE OF NEW YORK
HELD & HINES, LLP By: Philip M. Hines, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael C. Rizzo, Esq., AAG
Synopsis
Motion to compel discovery granted.
Case information
| UID: | 2017-040-144 |
| Claimant(s): | R.S. and E.A. |
| Claimant short name: | R.S. and E.A. |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126980 |
| Motion number(s): | M-90686 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | HELD & HINES, LLP By: Philip M. Hines, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael C. Rizzo, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | December 11, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Claimants' Motion to compel discovery is granted.
This Claim, which was filed in the office of the Clerk of the Court on November 4, 2015, asserts that Claimant R.S. was sexually assaulted and raped at Clinton Correctional Facility (hereinafter, "Clinton") on August 2, 2014 by an unnamed inmate and that Claimant E.A. also was sexually assaulted and raped at Clinton by a different unnamed inmate on December 17, 2014. Both Claimants were prisoners identifying as transgender females and housed in male units at Clinton. The Claim alleges that Defendant was negligent in failing to protect Claimants and in its ownership, operation, supervision, and control of Clinton, as well as Defendant's negligence in hiring, training, retention, supervision, and control of its employees.
The alleged assailants are identified in Claimant's Motion papers. --------
Claimants' counsel asserts, in his affirmation submitted in support of the Motion, that he served discovery demands, dated April 18, 2016 and April 6, 2017, upon Defendant seeking, inter alia, the personnel files and disciplinary histories for Correction Officers (hereinafter, "CO") Napper, Wills, and Terry (Affirmation of Philip M. Hines, Esq. [hereinafter, "Hines Affirmation"], ¶ 7[a, b]). Defendant objected to providing the officers' files, citing Civil Rights Law § 50-a (id., ¶ 8 and Exs. D and F attached thereto). The Court held a telephone conference with the parties on July 6, 2017 and the Court consented to Claimants making the current Motion.
All personnel records used to evaluate the performance of a CO are considered confidential and are not subject to inspection or review without the express written consent of the CO, unless mandated by a Court order (Civil Rights Law § 50-a [1]). A party seeking such personnel records must make a threshold "clear showing of facts sufficient to warrant the judge to request records for review" (Civil Rights Law § 50-a [2]). The moving party must demonstrate "in good faith … some factual predicate which would make it reasonably likely that the file will bear [relevant] fruit and that the quest for its contents is not merely a desperate grasping at a straw" (People v Gissendanner, 48 NY2d 543, 550 [1979]), such that the intrusion into the affected employee's personnel records is warranted (see Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834 [3d Dept 2001], lv denied 96 NY2d 710 [2001]; Taran v State of New York, 140 AD2d 429, 432 [2d Dept 1988]). This showing "must be viewed liberally because, in the usual case, a party seeking discovery will, of course, not know precisely what pertinent information is within a personnel [or disciplinary] record" (Cox v New York City Hous. Auth., 105 AD2d 663, 664 [1st Dept 1984]). Notwithstanding this liberal standard of review, a motion for production of personnel records may be summarily denied without an in camera review when the moving party's papers fail to satisfy the factual showing required by Gissendanner (see People v Henry, 242 AD2d 877 [4th Dept 1997], lv denied 91 NY2d 834 [1997]; Smalls v State of New York, UID No. 2005-015-083 [Ct Cl, Collins, J., Apr. 14, 2006]). Where, however, the moving party demonstrates the required factual predicate, the personnel records will be reviewed in camera and the Court will "make a determination as to whether the records are relevant and material in the action" (see Civil Rights Law § 50-a[3]; see Becker v State of New York, UID No. 2017-038-548 [Ct Cl, DeBow, J., Jun. 30, 2017]).
Prior to the Court issuing any order mandating the disclosure of such records, the COs, as interested parties, must be given an opportunity to be heard (Civil Rights Law § 50-a[2]). Here, Claimants have established that they served the Motion upon the COs whose records they are seeking, as well as Defendant (Reply Affirmation of Philip M. Hines, Esq. [hereinafter, "Hines Reply Affirmation"], ¶ 2, and Ex. B, pp. 25-26 attached) and Defendant has not raised the issue of lack of notice of this Motion to the COs. The COs have not submitted any papers in opposition to the Motion.
In this Claim, it is alleged that, at the time R.S. was sexually attacked and raped, "at least one (1) [CO] was in close proximity to the subject location and asleep" (Claim, ¶ 35). In the affirmation submitted in support of the Motion, it is asserted that R.S. testified at her deposition that, after the attack, she went to the bathroom and saw CO Terry, the housing unit officer, asleep at his post with his feet up on a chair (Hines Affirmation, ¶ 4 & Ex. G, pp. 45-49 attached).
In addition, it is asserted that E.A. testified at her deposition that she was locked in her assigned protective custody cell, located approximately 30 feet from the officer station, when her attacker approached her cell bars and flashed a shiny object, that E.A. believed to be a weapon, and threatened her that he could get the officers to open E.A.'s cell if she did not give him oral sex. E.A. believed this to be true because, she said, CO Napper was known by prisoners to "protect" his porters and give them special privileges, including letting them into other prisoners' locked cells. Therefore, out of fear for her safety, E.A. complied with the demand for oral sex. This sexual assault happened in plain view as E.A. performed oral sex on the assailant through her cell bars, with the prisoner standing in the main corridor and E.A. kneeling in her cell. It is asserted that COs Napper and Wills were the housing officers on duty at the time of this incident (Hines Affirmation, ¶ 5 & Ex. H, pp. 45-52 attached).
In their discovery demands, Claimants have crafted their requests for information in the COs' personnel files and disciplinary histories to cover only material that is relevant to the issues in this Claim. Specifically, with regard to COs Napper and Wills, their personnel files and disciplinary histories regarding allegations, complaints, investigation materials, investigation findings, and disciplinary action taken against them relating to them (a) allowing prisoners to fight; (b) moving prisoners out of protective custody if he did not like them; (c) giving preferential treatment to porters; (d) providing protection to certain prisoners, including porters; (e) dereliction of duty, including, but not limited to, falling asleep on shift, not being on post, failing to supervise, failing to report an incident, failing to make rounds, and/or missing a count; and (f) giving false statements to officials or in official reports/logs. Further, with respect to CO Terry, information is sought that is the same as described in paragraphs (e) and (f) above from the same enumerated records (see Hines Affirmation, ¶¶ 7[a, b]).
The Court finds and concludes that Claimants have established a factual predicate sufficient to warrant in camera review of those records as set forth above and that those records are relevant to the prosecution of this Claim (see Becker v State of New York, supra; Fabian v State of New York, UID No. 2016-015-178 [Collins, J., Nov. 9, 2016]).
ORDERED that Defendant is to provide the Court, for purposes of an in camera inspection, within forty-five (45) days of the date this Decision and Order is filed in the Office of the Clerk of the Court of Claims, two copies of the portions of COs Napper, Wills, and Terry's personnel and disciplinary histories as set forth above, or, in the alternative, an affidavit of a person with personal knowledge demonstrating that such records do not exist. One copy shall be unredacted and the other shall be marked with proposed redactions that Defendant believes will protect confidential information. Defendant is directed to sequentially number the pages of the records submitted. After reviewing the submissions, the Court will issue further direction indicating what, if any, portions of the documents in question shall be provided to Claimants.
Claimants also seek the disciplinary files of the two alleged assailants relating to sexual acts/conduct with prisoners and/or staff prior to and on the dates of the two incidents alleged in the Claim. In response to Claimants' Motion, Defendant provided the inmate disciplinary histories for the Court to review in camera.
The Court has completed its review of each of the alleged assailant's inmate disciplinary histories, as well as the relevant authority governing disclosure. With respect to R.S.'s alleged assailant, Inmate Bauldrick, his inmate disciplinary history contains five incidents, one of which occurred after the alleged assault of R.S. on August 2, 2014. After careful consideration, the Court finds that none of the other four other items contained in the inmate disciplinary history bear any relevance to the allegations forming the basis of the instant Claim.
With respect to E.A.'s alleged assailant, Inmate Abdur-Rahman, his inmate disciplinary history contains three incidents, all of which occurred after the alleged assault of E.A. on December 17, 2014 and, therefore, are not relevant.
Therefore, it is
ORDERED that Defendant does not have to provide any of the requested documents relating to the disciplinary histories of the two alleged assailants to Claimants.
For the reasons set forth above, Claimants' Motion to Compel is granted in part and denied in part.
December 11, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Claimants' Motion: Papers Numbered Notice of Motion, Affirmation in Support and Exhibits Attached 1 Affidavit in Opposition 2 Letter dated July 12, 2017 from Defense Counsel With in camera documents enclosed 3 Reply Affirmation and Exhibits attached 4 Filed Papers: Claim, Answer