Opinion
# 2011-038-576 Claim No. 118260 Motion No. M-79526
12-02-2011
BELL v. THE STATE OF NEW YORK
Synopsis
Defendant's opposition to motion to compel production of documents insufficient where AAG offers facts as to unavailability of documents upon information and belief. Affidavit of one with personal knowledge required. Records regarding disciplinary history of inmates who assaulted claimant, and documents regarding prior inmate-on-inmate assaults at same location, to be produced for in camera review. Case information
UID: 2011-038-576 Claimant(s): JOSHUA BELL Claimant short BELL name: Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant The caption has been amended, sua sponte to reflect the name) : State of New York as the only proper defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 118260 Motion number(s): M-79526 Cross-motion number (s): Judge: W. BROOKS DeBOW Claimant's JOSHUA BELL, Pro se attorney: ERIC T. SCHNEIDERMAN, Attorney General Defendant's attorney: of the State of New York By: Belinda A. Wagner, Assistant Attorney General Third-party defendant's attorney: Signature date: December 2, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, an individual incarcerated in a State correctional facility, seeks to recover damages for injuries he allegedly sustained when he was assaulted by two other inmates in a "visit room" at Upstate Correctional Facility. This motion to compel defendant to produce responses to his discovery demands was previously held in abeyance because neither the motion papers before the Court nor the Court's file included claimant's discovery demands (see Bell v State of New York, UID # 2011-038-522, Claim No. 118260, Motion No. M-79526, DeBow, J. [Apr. 18, 2011]). These demands have now been submitted to the Court, bringing the motion on for decision.
As indicated in the prior decision holding the motion in abeyance, claimant is seeking: (1) institutional disciplinary records of the alleged assailants indicating a "reputation of violence;" (2) "whether any inmate-on-inmate attacks (assaults) had previously occurred in the SHU 10-building visit room in the past at Upstate Correctional Facility" (see Document Demand, sworn to Sept. 14, 2010); and (3) a November 23, 2009 "PIMS level change sheet" indicating whether either of the inmates who assaulted claimant was on "PIMS level one (1)" (see Document Demand, dated Oct. 25, 2010, ¶1). Defendant's responses to claimant's demands were that: (1) it would not produce another inmate's disciplinary record without a court order (see Defendant's Response, dated Sept. 21, 2010, ¶1); (2) claimant's request for information on prior attacks in the visit room was not relevant to the claim and defendant does not maintain records of incidents by location (id. ¶3), and; (3) production of other inmates' "PIMS" level change sheets would impinge on facility security, and further stated that upon the Assistant Attorney General's information and belief, neither of the two alleged assailants were "level one" on the date of the assault (see Defendant's Response, dated Nov. 3, 2010, ¶1).
Defendant contends that the alleged assailants' history of violence and information regarding prior inmate-on-inmate assaults that occurred in the room where claimant was assaulted are irrelevant. This argument is without force in light of Sanchez v State of New York (99 NY2d 247 [2002]), which reiterated that the State cannot be found liable to an inmate for an inmate-on-inmate assault unless the inmate-on-inmate assault is reasonably foreseeable (see id. at 252), which requires a showing that the State had actual or constructive knowledge of the risk of the inmate-on-inmate assault that occurred (see id. at 255). Consistent with the majority opinion in Sanchez, the dissenters recited certain facts that are relevant to the question of foreseeability, including "where the assailant was known to be dangerous" and where "there were a number of prior attacks in a certain location in a facility" (id. at 261; cf. Vasquez v State of New York, 68 AD3d 1275, 1276 [3d Dept 2009] [defendant not liable where there was "no evidence that claimant's assailants were prone to perpetrating such an assault" and there was insufficient evidence regarding a prior attack in the same bathroom to demonstrate that defendant should have foreseen future incidents in the same location]). Thus, claimant's request for documents addressed to his assailant's prior acts of violence and prior incidents in the same location as claimant's assault are relevant to the prosecution of his claim.
To the extent that defendant objects to producing documents relating to the alleged assailants' prior history of violence, claimant has requested copies of the other inmates' disciplinary records, which defendant concedes is possible, but not without court order due to unarticulated concerns for the privacy rights of the alleged assailants (see Wagner Affirmation, ¶4). The Court is unpersuaded by this argument, and exercises its discretion in controlling discovery to direct defendant to produce the disciplinary histories of claimants' alleged assailants for in camera review, with pagination.
Beyond its relevancy objection to claimant's request for documents containing information about prior inmate-on-inmate attacks in the Upstate CF SHU 10-building, the Assistant Attorney General (AAG) argues that "misbehavior reports are not sorted by location within a facility and the demand is an impossible task" (Wagner Affirmation, ¶5). The AAG does not, however, claim personal knowledge of the record-keeping practices at Upstate CF, and does not otherwise set forth the basis of her knowledge of these factual assertions. Accordingly, the Court will direct for in camera review the production of documents pertaining to prior inmate-on-inmate attacks in the Upstate CF SHU 10-building, or, in the alternative, an affidavit of a person with personal knowledge demonstrating why production of such documents is not possible.
In opposition to claimant's motion to compel, defendant has abandoned the contention that disclosing other inmates' "PIMS" level "would impinge upon the security of the facility" (see Defendant's Response, dated Nov. 3, 2010, ¶1), and asserts only that "inmates Pena and Rolando were not [PIMS] level one on November 23, 2009, but level two or level three" (Wagner Affirmation, ¶6). Again, however, the AAG's affirmation lacks a foundational basis for this factual information. Accordingly, defendant will be directed to produce an affidavit of one with personal knowledge of this information, or, alternatively, shall produce the documents setting forth the alleged assailants' PIMS level on the date that claimant was assaulted.
Accordingly, it is
ORDERED, that claimant's Motion No. M-79526 is GRANTED in part, and defendant is hereby directed to produce the following documents:
(1) for in camera review, the institutional disciplinary records of inmate Pena, #09-A-4088 and of inmate Rolando, #03-A-5841 with pagination; and
(2) for in camera review, all documents pertaining to inmate-on-inmate attacks in the Upstate Correctional Facility SHU 10-building occurring on or before November 23, 2009 with pagination, or, in the alternative, an affidavit of a person with personal knowledge demonstrating why production of such documents is impossible; and
(3) an affidavit of one with personal knowledge stating the PIMS level of inmate Pena, #09-A-4088 and of inmate Rolando, #03-A-5841 on November 23, 2009, or, alternatively, documents setting forth those inmates' PIMS level on that date, and it is further
ORDERED, that Motion No. M-79526 is denied in all other respects.
December 2, 2011
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim Number 118260, filed April 12, 2010;
(2) Decision and Order in Bell v State of New York, UID # 2011-038-522, Claim No. 118260, Motion No. M-79526, DeBow, J. (Apr. 18, 2011);
(3) [Claimant's Demand for] Production of Documents, sworn to September 14, 2010;
(4) Response to Demand for Production of Documents, dated September 21, 2010;
(5) [Claimant's Demand for] Production of Documents, dated October 25, 2010;
(6) Response to Production of Documents Demand, dated November 3, 2010;
(7) Notice of Motion, dated February 24, 2011, with Verification, sworn to February 24, 2011;
(8) Affirmation in Opposition of Belinda A. Wagner, AAG, dated February 22, 2011.