Opinion
# 2015-041-026 Claim No. 122362 Motion No. M-86022
03-17-2015
DAVID A. BROWN, 09 B 2234 v. THE STATE OF NEW YORK
BROWN HUTCHINSON, LLP By: Adrian Neil, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Joan Matalavage, Esq. Assistant Attorney General
Synopsis
Inmate/claimant's motion to compel production of the following items: Department of Correction and Community Services (DOCCS) Inspector General file relating to the incident underlying the claim; employment, job description and personnel records of DOCCS employees; records of past grievances filed by claimant; records of past smoking and sexual contact incidents; records of disciplinary proceedings against a fellow inmate; records of claimant's administrative appeals; and records, manuals and directives regarding investigation procedure and inmate discipline for sexual conduct, is granted in part and denied in part.
Case information
UID: | 2015-041-026 |
Claimant(s): | DAVID A. BROWN, 09 B 2234 |
Claimant short name: | BROWN |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 122362 |
Motion number(s): | M-86022 |
Cross-motion number(s): | |
Judge: | FRANK P. MILANO |
Claimant's attorney: | BROWN HUTCHINSON, LLP By: Adrian Neil, Esq. |
Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Joan Matalavage, Esq. Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | March 17, 2015 |
City: | Albany |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Claimant moves for an order compelling production of the following items and documents: Department of Corrections and Community Supervision (DOCCS) Inspector General (IG) file relating to the incident underlying the claim; employment, job description and personnel records of certain DOCCS employees; records of past grievances filed by claimant at Mt. McGregor Correctional Facility (McGregor); records of past smoking and sexual contact incidents at McGregor; records of disciplinary proceedings against fellow inmate Hecht; records of claimant's administrative appeals; and records, manuals and directives regarding investigation procedure and inmate discipline for sexual conduct.
The claim alleges that claimant was wrongfully confined for 272 days as a consequence of a guilty determination issued after a prison disciplinary hearing. The disciplinary determination found claimant guilty of violating DOCCS disciplinary rules related to claimant having allegedly engaged in a sexual act with inmate Hecht. Claimant was sentenced to twelve months in the Special Housing Unit, among other penalties.
At the disciplinary hearing, claimant requested that "5 additional witnesses" testify in claimant's behalf and that 2 written statements of Hecht be considered by the hearing officer. Claimant's request was denied.
The disciplinary determination was later annulled and expunged, on defendant's consent, after claimant commenced a CPLR Article 78 proceeding against defendant.
Claimant's attorney argues, among other things, that the requested documents and records are relevant in determining whether DOCCS employees were "acting within the bounds and guidelines of their employment" and could demonstrate "specific animus" and/or "potential motives" of DOCCS employees in their conduct of the disciplinary hearing that is the subject of the claim.
The defendant "[s]pecifically . . . opposes the production of" the IG Report, employee job descriptions and personnel records and information related to claimant's fellow inmate (Hecht).
The defendant refused to provide the IG file relating to the incident, asserting in response to claimant's discovery demand that it is "privileged." Defendant points out with respect to the employee records and job descriptions that it has not asserted, as a defense to the claim, that the DOCCS employees acted outside the scope of their employment or duties. Defendant further argues that the demand for production of the employees' personnel records must be denied pursuant to New York Civil Rights Law 50-a. Defendant also objects to the demand for "incidents of smoking by inmates" and "records regarding sexual contact between inmates" as, respectively, unduly burdensome, irrelevant and a violation of inmate privacy.
Defendant is directed to provide disclosure of those items and documents to which it has raised no objection in opposition to claimant's motion to compel disclosure.
The Court's inquiry is guided by the principle that "[d]isclosure provisions of the CPLR are to be liberally construed; however, the scope of permissible discovery is not entirely unlimited and the trial court is invested with broad discretion to supervise discovery" (NBT Bancorp v Fleet/Norstar Fin. Group, 192 AD2d 1032, 1033 [3d Dept 1993]). It is axiomatic that determination of a disclosure dispute focus on the relevant elements of the asserted causes of action and defenses.
Although the claim suggests violations of claimant's federal and state constitutional rights, it is clear that the sole essential cause of action is for wrongful confinement.
With respect to claimant's cause of action asserting defendant's alleged violations of claimant's federal constitutional rights, the law is settled that "claims for damages against the State based on alleged deprivations of rights under the US Constitution are beyond the jurisdiction of the Court of Claims" (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1151 [3d Dept 2009]; see Flemming v State of New York, 120 AD3d 848, 849 [3d Dept 2014]). Claimant is free to pursue a federal constitutional claim against the individual defendants based upon allegations of "specific animus" against claimant, pursuant to 42 USC 1983.
Although the Court of Appeals has recognized a narrowly defined cause of action for a state constitutional tort in the Court of Claims (Brown v State of New York, 89 NY2d 172, 177-178 [1996]), "no such claim will lie where the claimant has an adequate remedy in an alternate forum" (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1150 [3d Dept 2009]; see Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]; Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]). Claimant may, if he chooses, pursue state and federal constitutional claims against the individual defendants in New York State Supreme Court (Haywood v Drown, 129 S Ct 2108 [2009]). His state constitutional tort claim thus "does not lie" in the Court of Claims (Shelton, 61 AD3d at 1151).
The cause of action for wrongful confinement remains. To establish that he was wrongfully confined, claimant must prove that "(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).
With respect to whether a confinement is privileged, Holmberg v County of Albany (291 AD2d 610, 612 [3d Dept 2002], lv denied 98 NY2d 604 [2002]), instructs that: "Generally, where a facially valid order issued by a court with proper jurisdiction directs confinement, that confinement is privileged . . . and everyone connected with the matter is protected from liability for false imprisonment."
In the context of confinement pursuant to a prison disciplinary proceeding, such confinement is "privileged to the extent that it was under color of law or regulation, specifically in accordance with [inmate disciplinary hearing] regulations" (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]).
Defendant relies upon, among other defenses, the quasi-judicial governmental immunity defense set forth in its answer.
That defense provides that where employees of DOCCS, in commencing and conducting formal inmate disciplinary proceedings, "act under the authority of and in full compliance with the governing statutes and regulations . . . their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity" (Arteaga v State of New York, 72 NY2d 212, 214 [1988]; Varela v State of New York, 283 AD2d 841 [3d Dept 2001]). This immunity attaches even if the determination is later reversed administratively or as the result of a successful CPLR Article 78 proceeding (see Arteaga, 72 NY2d at 215).
If, however, prison officials fail to comply with a rule or regulation governing such hearings, absolute immunity may be lost and liability for money damages may be imposed if it is proven that the regulatory violation caused actual prejudice or injury to the inmate (see Davidson v State of New York, 66 AD3d 1089, 1089 [3d Dept 2009]; Vasquez v State of New York, 10 AD3d 825 [3d Dept 2004]).
Not all disciplinary hearing procedural rules and regulations, if violated, form a basis to abrogate the immunity afforded to employees of DOCCS in commencing and conducting formal inmate proceedings. The rule or regulation must implicate minimal due process protections:
"Notably, there is no right to counsel or to confrontation at prison disciplinary hearings. . . Nevertheless, an inmate is entitled to advance written notice of the charges against him; a hearing affording him a reasonable opportunity to call witnesses and present documentary evidence; a fair and impartial hearing officer; and a written statement of the disposition, including the evidence relied upon and the reasons for the disciplinary actions taken" (Sira v Morton, 380 F3d 57, 69 [2d Cir 2004]).
The primary issues raised in the claim and answer are whether the confinement of claimant was privileged and, if not, whether defendant is absolutely immune from liability for the quasi-judicial determination to confine claimant. Resolution of these issues turns on whether disciplinary hearing rules or regulations impacting claimant's minimal due process rights were violated by defendant and whether such violations, if any, caused claimant's confinement.
In that context, the Court will first consider the request for disclosure of employment, job description and personnel records of defendant's employees.
Defendant argues that such disclosure would violate the protections afforded by Civil Rights Law § 50-a, which provides, at relevant part, as follows:
"1. All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof . . . shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, . . . except as may be mandated by lawful court order.
2. Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review.
3. If, after such hearing, the judge concludes there is a sufficient basis he shall sign an order requiring that the personnel records in question be sealed and sent directly to him. He shall then review the file and make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting."
"The legislative purpose [behind the statute] was to prevent disclosure of officers' personnel records except when a legitimate need for them has been demonstrated sufficiently to obtain a court order, generally upon a showing that they are actually relevant to an issue in a pending proceeding" (Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 155 [1999]). The party seeking the protected records has the initial burden of making a good faith showing of a "factual predicate" justifying the intrusion into the personnel records (Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834 [3d Dept 2001], quoting People v Gissendanner, 48 NY2d 543, 550 [1979]).
Claimant has not provided notice of his application to the individuals whose records are sought. Even so, after careful review and consideration of the allegations and assertions of the claim, answer and claimant's motion papers, the Court finds that there is no factual predicate set forth to demonstrate that disclosure of the requested employment, personnel records and job descriptions of DOCCS employees would lead to evidence relevant to resolving the salient issues in this litigation: Whether disciplinary hearing rules or regulations impacting claimant's minimal due process rights were violated by defendant and whether any such violations caused claimant's confinement.
Claimant admittedly seeks these records in the hope of showing "specific animus" of defendant's employees against claimant. The motives or intentions of the DOCCS employees is not relevant to the issues to be determined in this claim. Either the alleged violations of the disciplinary hearing rules and regulations were significant enough to impact claimant's due process rights to the extent that they could found to be a cause of claimant's confinement or they were not. This cannot be determined by motives, intentions or "specific animus" but rather by the factual and legal implications of the purported violations.
Moreover, claimant's assertions that "[t]he requested records and documentation bear directly on the irregularities and potential motives for said irregularities, leading up to and during claimant's disciplinary hearing that resulted in his wrongful confinement," fails to meet his burden of demonstrating a factual predicate sufficient for the Court to consider review of the requested records (emphasis added).
Nor can the DOCCS employees motives or intentions impact damages because the "waiver of sovereign immunity effected by section 8 of the Court of Claims Act does not permit punitive damages to be assessed against the State" (Sharapata v Town of Islip, 56 NY2d 332, 334 [1982]).
That portion of the motion demanding disclosure of the DOCCS employment records, job descriptions and personnel files is denied.
The Court will next consider disclosure of the IG Report. Defendant objects to its disclosure on the basis of the public interest privilege. The privilege is described in Lowrance v State of New York (185 AD2d 268, 269 [2d Dept 1992]), which involved an inmate's demand for disclosure of an Investigator General file compiled during the investigation of the inmate's grievance against a correction officer:
"It has long been recognized that the public interest is served by keeping certain government documents privileged from disclosure (see, Cirale v 80 Pine St. Corp., 35 NY2d 113; One Beekman Place v City of New York, 169 AD2d 492, 493). The Court of Appeals has observed that '[t]he hallmark of this privilege is that it is applicable when the public interest would be harmed if the material were to lose its cloak of confidentiality' (Cirale v 80 Pine St. Corp., supra, at 117-118). Under the circumstances presented, the State's interest in maintaining the integrity of its internal investigations and protecting the confidentiality of sources who provide sensitive information within a prison context, outweighs any interest of the claimant in seeking access to the file (Cirale v 80 Pine St. Corp., supra, at 117)."
As stated above in Lowrance, the public interest privilege asserted by defendant ("maintaining the integrity of its internal investigations and protecting the confidentiality of sources who provide sensitive information within a prison context") must be weighed against the claimant's right to disclosure of information relevant and material to the claim (see CPLR 3101; Marten v Eden Park Health Servs., 250 AD2d 44, 46 [3d Dept 1998]).
Although the same issues of relevancy to this specific action may exist with respect to the IG Report, as exist with regard to the employee records, the Court will review the IG Report, in camera, to ensure that any relevant non-privileged material may be disclosed. Defendant is ordered to provide the IG Report to the Court for in camera review within forty-five (45) days of the filing of this Decision and Order.
The Court agrees with defendant that the demands for "incidents of smoking by inmates" and "records regarding sexual contact between inmates" are overly broad, unduly burdensome, irrelevant and a violation of inmate privacy.
Finally, claimant's demand for records of inmate Hecht is denied. There is no proof that Hecht was put on notice of claimant's motion to compel production of Hecht's inmate records nor has there been an adequate showing of relevancy and necessity sufficient to outweigh obvious privacy concerns.
The claimant's motion to compel is granted in part and denied in part as set forth herein.
March 17, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion to Compel Discovery, filed November 21, 2014;
2. Affidavit of Adrian Neil, sworn to November 20, 2014, and annexed exhibits;
3. Affidavit in Opposition of Joan Matalavage, sworn to December 31, 2014.