Opinion
# 2017-038-533 Claim No. 122197 Motion No. M-89483 Motion No. M-89676
05-04-2017
JOHN H. WHITE v. STATE OF NEW YORK, et al
JOHN H. WHITE, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Michael T. Krenrich, Assistant Attorney General
Synopsis
Claimant's motion to strike affirmative defenses denied due to defective papers. Affidavit and memorandum of law printed on both sides in violation of court rules (22 NYCRR § 205.5 [b]), and only one side of each page was photocopied for service upon defendant, who thus has only every other page of claimant's submission. Claimant's motion to compel defendant to comply with a prior decision and order in discovery denied. Defendant demonstrated sufficient compliance with the order, and claimant did not persuasively show otherwise.
Case information
| UID: | 2017-038-533 |
| Claimant(s): | JOHN H. WHITE |
| Claimant short name: | WHITE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK, et al |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122197 |
| Motion number(s): | M-89483, M-89676 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | JOHN H. WHITE, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Michael T. Krenrich, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 4, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim in which he alleges a plethora of wrongdoing by defendant's employees, including that correction officers threatened claimant and induced other inmates to assault him, that they denied his requests for protective custody, that other inmates came into possession of claimant's personal property including legal papers, and that they have not provided him with medical treatment for injuries sustained in assaults. Claimant has filed a motion to strike four affirmative defenses asserted in defendant's answer (M-89483) and to compel defendant to comply with a disclosure order issued by this Court (M-89676). Defendant opposes both motions. Motion No. M-89483
By way of this motion, claimant seeks to strike the third, fourth, sixth and seventh affirmative defenses asserted in defendant's verified answer. Defendant opposes the motion on the ground that the motion papers served upon it lacked the exhibits in support of the motion, and attaches a complete copy of the papers that were served upon it, which consists only of every other page of claimant's affidavit and memorandum of law (see Krenrich Affirmation, Exhibit A). In reply, claimant argues that the exhibits were attached to the motion and that "facility personnel refused to process the outgoing mail addressed to counsel stating I needed a court order to mail the 'manilla envelope to [the Office of the Attorney General] in order to be provided indigent postage fees to cover costs'" (White Reply Submission, p. 1). Further, claimant asserts that this Court "directed that counsel Krenrich inquire into 'mailing matters impeding access to Court' & was ordered through [the undersigned's law clerk]" (id., citing Schulman Correspondence in Claim No. 118188, Oct. 17, 2016 [emphasis in original]). Claimant argues that his failure to include the exhibits was not a willful omission and may be remedied by an order permitting re-service of the motion with only the exhibits and directing facility personnel to permit claimant to communicate with the Assistant Attorney General (AAG) defending the claim, "until otherwise discontinued by court order" (id., p. 2).
Claimant's affidavit and the memorandum of law that are before the Court are printed on both sides of twelve pages of paper. Not only does the form of this submission violate the rule that papers that are filed "shall contain writing on one side only" (22 NYCRR § 205.5 [b]), but it appears to have caused claimant to serve an incomplete copy of his motion papers on defendant, as only the front side of the pages were photocopied (see Krenrich Affirmation, Exhibit A). Thus, claimant's suggestion that his omission of the exhibits and the defect in his papers may be cured by service of the exhibits only is unavailing, and his request to remedy the omission of the exhibits through the re-service of only the exhibits will be denied.
Claimant's reply papers clearly imply that he is in dispute with facility officials with regard to payment of the costs of mailing his legal papers to the Office of the Attorney General. To the extent that claimant seeks an order directing defendant to pay the costs of his postage, that relief will not be granted as his motion was not noticed as seeking such relief. Further, the State is not required to pay the expenses of litigation commenced and prosecuted by an incarcerated person (see Civil Rights Law §§ 79 [3] and 79-a [3]), and any dispute over claimant's right to the payment of postage costs to file and serve legal papers due to his indigency would be an issue to be litigated in a proceeding pursuant to CPLR article 78. Finally, the Court is compelled to note that claimant has mischaracterized the meaning and import of correspondence sent by the undersigned's law clerk to the AAG in the context of a different claim. That correspondence enclosed a copy of a letter from claimant, "which addressed claimant's alleged inability to send mail to [the AAG] from the facility," and asked the AAG to "[p]lease address this matter as [he saw] fit" (Schulman Correspondence in Claim No. 118188, dated Oct. 17, 2016). Nowhere in that correspondence did the undersigned's law clerk - or the Court for that matter - direct the AAG to undertake any particular inquiry or action.
Motion No. M-89676
As pertinent to this motion, defendant was previously ordered to disclose: (1) the names of other inmates who were cell mates of claimant's alleged assailant, inmate Alston, on or before December 20, 2012; (2) Alston's disciplinary record at the time of the assault; and (3) classification and movement records with regard to all matters involving Alston's risk as a security threat (see White v State of New York, 2016-038-505 [Ct Cl, DeBow, J., unpublished decision dated January 27, 2016, filed May 16, 2016]). Defendant's supplemental discovery response includes documents that identify Alston's prior cell mates and his disciplinary history (see Krenrich Affirmation, Exhibit A [11/10/16 Supplemental Discovery Response, at ¶¶ 4, 6; Exhibits A, B]). The affidavit of Joseph Bonacci, an Assistant Director of Classification and Movement at DOCCS, states that DOCCS did not possess any records that would have been responsive to claimant's request for records relating to Alston's risk as a security threat (see id., Exhibit A, at ¶ 7; [Exhibit C, at ¶¶ 3, 4]). Defendant has produced responsive documents to items (1) and (2), above, and has demonstrated that it did not possess the records set forth in (3), above, and thus, its supplemental discovery response dated November 10, 2016 demonstrates its compliance with the prior order of the Court.
Defendant was also directed to serve Alston with his mental health records and a copy of the Court's Decision and Order, and submit those mental health records to the Court for in camera review along with an affidavit of service on Alston (see White v State of New York, UID No. 2016-038-505, supra), and defendant has done so. To the extent that claimant seeks any relief with regard to the Court's order to defendant in this regard (White "Affirmation," at ¶ 4), it will be denied. --------
Claimant objects to the redaction of the name of an unidentified inmate from the document that defendant disclosed in response to claimant's request for Alston's cell mates (see White "Affirmation," at ¶ 3; see Krenrich Affirmation, Exhibit A [11/10/16 Supplemental Discovery Response, Exhibit A]). Defendant responds that the name of the individual who transferred out of the bottom bunk and cell into which Alston was transferred the same day was redacted because that inmate was replaced by Alston, and was not his cell mate. Thus, that inmate's name is not responsive to claimant's supplemental discovery request for the identify of Alston's cell mates, and was not improperly redacted.
Claimant objects to a redaction from Alston's inmate disciplinary records and he requests that the redacted information be disclosed (see White "Affirmation," at ¶ 5, 6; Krenrich Affirmation, Exhibit A [11/10/16 Supplemental Discovery Response, Exhibit B]). As defendant correctly contends, defendant was ordered to produce four entries in Alston's inmate disciplinary history record subsequent to in camera review of his disciplinary record (see White v State of New York, 2016-038-505, supra), and defendant produced a redacted disclosure that complies with the Court's order (see Krenrich Affirmation, Exhibit A [11/10/16 Supplemental Discovery Response, Exhibit B]). Accordingly, the relief requested by claimant will not be granted.
Finally, claimant disputes the content of the Bonacci affidavit, which averred that DOCCS Office of Classification and Movement did not have any documents responsive to claimant's request for Alston's classification and movement records that would identify Alston's risk as a threat to staff and/or other inmates. Claimant argues that all inmates are assigned a security classification by DOCCS Classification and Movement upon entry to DOCCS, which includes information about whether the inmate poses a public risk or institutional risk (see White "Affirmation," at ¶¶ 9-17). Claimant asserts that DOCCS Classification and Movement engages in a process of "gang validation," whereby inmates that are members of gangs are put into a "Security Threat Groups" that are administratively segregated and separately housed, and that Alston was a member of a gang (id., ¶¶ 18-20). In its response, defendant submits the affidavit of Upstate CF Deputy Superintendent of Security Paul Woodruff, who avers that "[r]ecords relating to inmate security classification are not maintained in the Office of Classification and Movement" (Krenrich Affirmation, Exhibit B, at ¶ 3). Woodruff further avers that "DOCCS utilizes a computer program to record inmate information including, among other things, criminal history, educational background, discipline history and an enemies/separatee's list. Gang affiliation is not part of the information maintained" (id.). Woodruff asserts that:
"DOCCS does not categorize inmates by gang affiliation. Inmates are viewed as individuals. Inmates are separated from other specifically identified inmates; they are not separated from gangs and groups. Gang affiliation is not a factor in determining whether an inmate may or may not be placed in a double cell. DOCCS does not validate gangs. DOCCS does not classify gangs as 'security threat groups' "
(id., Exhibit B, at ¶¶ 4, 6). Claimant argues in reply that Woodruff's affidavit should be discounted because he works at Upstate CF and not at the Office of Classification and Movement, and that the affidavit offers generalizations without citation to applicable directives, rules or policies. Claimant further argues that DOCCS Directives 0701 and 4401 contradict Woodruff's claims that gang affiliation is not utilized by the Office of Classification and Movement in determining whether an inmate poses a threat.
It is axiomatic that a party cannot be compelled to produce records that are not in its possession, and the affidavits of Bonacci and Woodruff establish that the DOCCS Classification and Movement Office does not possess records that indicate whether Alston posed a security risk to staff and/or other inmates. Claimant apparently takes the position that Classification and Movement maintained and utilized information about Alston's gang status, that such information demonstrates ipso facto that Alston was a security risk, and that records documenting such are in existence and should be produced. However, claimant's speculative assertions are insufficient to contradict the Woodruff affidavit, which establishes that the documents claimant seeks do not exist. Further, the DOCCS directive upon which claimant relies to support his contention that gang affiliation information is utilized to classify inmates as security threats is unpersuasive because the directive did not take effect until after the date of the alleged assault by Alston, and even if it was in effect and provided that gang affiliation was a factor to determine a security threat, claimant's submission does not establish that Classification and Movement was in possession of such information as of the date of the alleged assault. Finally, claimant's citation of a federal decision in support of his assertion that DOCCS validates gang affiliations is unpersuasive because that decision involved the New York City Department of Corrections and not the State agency (see White Reply "Affirmation, ¶ ¶ 19, 20, citing Walker v Shaw, 2010 WL 2541711 [S.D.N.Y. June 23, 2010]).
In sum, claimant has not persuaded the Court that defendant's supplemental discovery response was non-compliant with the Court's prior order, and thus, his motion to compel compliance will not be granted.
Accordingly, it is
ORDERED, that claimant's motion number M-89483 is DENIED; and it is further
ORDERED, that claimant's motion number M-89676 is DENIED.
May 4, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 122197, filed January 2, 2013; (2) Verified Answer, filed February 13, 2013; Motion No. M-89483 (1) Notice of Motion to Strike Defenses, dated October 12, 2016; (2) Affidavit and Memorandum of Law in Support of John White, sworn to October 12, 2016 with unenumerated exhibits; (3) Affirmation of Michael T. Krenrich, AAG, in Opposition to Claimant's Motion to Strike Defenses, dated December 19, 2016, with Exhibit A; (4) Declaration Responding to Opposition of John White, dated December 21, 2016 and sworn to December 22, 2016; (5) Correspondence of John White, dated February 23, 2017; (6) Correspondence of Nancy Schulman, Principal Law Clerk, in Claim No. 118188, dated October 17, 2016, with enclosure (Correspondence of John White, dated October 5, 2016); Motion No. M-89676 (1) "Affirmation" Anew Seeking Disclosure of Redacted Discovery Items of John White, sworn to November 30, 2016, with Defendant's Supplemental Discovery Response, dated November 10, 2016, with unenumerated exhibits; (2) Correspondence of Michael T. Krenrich, AAG, dated January 17, 2017; (3) Correspondence of Nancy Schulman, Principal Law Clerk, dated January 18, 2017; (4) Correspondence of Michael T. Krenrich, AAG, dated February 8, 2017; (5) Correspondence of Gina M. Hadcock, Secretary to the Hon. W. Brooks DeBow, Judge of the Court of Claims, dated February 10, 2017; (6) Affirmation in Response of Michael T. Krenrich, AAG, dated February 10, 2017, with Exhibits A-B; (7) "Affirmation" of John White in Reply to Defendant's Opposition, dated February 10, 2017 and sworn to February 21, 2017, with Exhibits (DOCCS Directives 0701 and 4401) (8) Decision and Order in White v State of New York, UID No. 2016-038-505 (Ct Cl, DeBow, J., unpublished decision dated January 27, 2016, filed May 16, 2016); (9) "So Ordered" Correspondence of the Hon. W. Brooks DeBow, Judge of the Court of Claims, dated October 7, 2016; (10) Correspondence of Nancy Schulman, Principal Law Clerk, dated April 6, 2017. Motion Nos. M-89483 and M-89676 (1) Correspondence of Nancy Schulman, Principal Law Clerk, dated March 10, 2017.