Opinion
# 2017-040-033 Claim No. 128331 Motion No. M-89652
03-22-2017
DERRICK PATTERSON, #12-A-4236 v. THE STATE OF NEW YORK
Derrick Patterson, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Anthony Rotondi, Esq., AAG`
Synopsis
Claimant’s Motion to compel a response to his Notice for Discovery & Inspection granted in part.
Case information
| UID: | 2017-040-033 |
| Claimant(s): | DERRICK PATTERSON, #12-A-4236 |
| Claimant short name: | PATTERSON |
| Footnote (claimant name) : | Caption amended to reflect Claimant’s name in proper order. |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128331 |
| Motion number(s): | M-89652 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant’s attorney: | Derrick Patterson, Pro Se |
|---|---|
| Defendant’s attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Anthony Rotondi, Esq., AAG` |
| Third-party defendant’s attorney: | |
| Signature date: | March 22, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, pro se Claimant’s motion to compel a response to his Notice for Discovery and Inspection is granted in part and denied in part.
This pro se Claim, which was filed in the office of the Clerk of the Court on August 8, 2016, asserts that Claimant was incarcerated at Bare Hill Correctional Facility (hereinafter, “Bare Hill”) on March 6, 2016. Claimant asserts that, at approximately 6:00 that evening, he had an issue with his housing unit officer not letting him back onto the unit from the mess hall; that they had words and that the officer gave him a direct order to return to his dormitory cube, which Claimant states he did. Claimant asserts that a short time later he was assaulted by several correction officers, then was placed in a van and taken to the Bare Hill Special Housing Unit (hereinafter, “SHU”). Once he arrived at SHU, he was again assaulted. He further asserts that he did not receive adequate medical care for the injuries he sustained.
Claimant asserts, in his affidavit submitted in support of the motion, that he served a Notice for Discovery and Inspection upon Defendant on October 3, 2016 (Patterson Affidavit, ¶ 4). Defendant served a response to Claimant’s Notice on November 18, 2016 (Affirmation of Anthony Rotondi, Esq., Assistant Attorney General [hereinafter “Rotondi Affirmation”], ¶ 5 and Ex. A attached). In his Notice for Discovery and Inspection, Claimant made 15 separate demands, labeled a-o. He seems to be objecting to 8 of the State’s responses ( ¶¶ a, b, f, g, h, k, n, o) despite his statement that, “ [d]isclosure of both x-rays and the video is what is being sought by this [M]otion (Patterson Affidavit, ¶ 6[1]; see ¶¶ 4, 5).
Claimant’s Demands and the State’s Responses thereto with respect to the disputed responses are as follows:
Demand: (a) [Bare Hill], Video of the Claimant[’s] examination at [Bare Hill] on March 7, 2016.
Response: (a) None.
Demand: (b) A copy of the Alpha Sheet of housing Unit I-2 at [Bare Hill] on the date(s) of March 6, 2016, for witness purposes.
Response: (b) Objection, Alpha Sheets are privileged based on Security Concerns. Inmates are not entitled to know the schedules and assignments of corrections officers, civil staff[,] or inmates.
Demand: (f) Copy of [Bare Hill SHU] log book page pertaining to the Claimant’s admittance into [SHU] on March 6, 2016, showing which area Sgt. Logged the Claimant into the housing unit.
(g) Copy of [Bare Hill SHU] log book page, showing the time, and date Health care provider who conducted Claimant’s physical examination upon intake into [SHU] on March 6, 2016 between the hours of 6:00 p.m. and 11:00 p.m.
(h) Copy of [Bare Hill SHU] log book page pertaining to the Claimant’s removal from [SHU] on March 7, 2016 and his subsequent transport to infirmary on March 7, 2016, between the hours of 6:00 a.m. to 7:00 a.m.
Response:
(f)-(h) See Bare Hill Folder.
Demand:
(k) Total number of USE OF FORCE incident[s] at [Bare Hill SHU] within a [twenty-four] month period prior to the Claimant’s filing of his assault complaint.
Response:
(k) Objection. This number is not readily available. This demand is irrelevant as well as unduly burdensome.
Demand:
(n) Request that [D]efendant produce for an in camera inspection (if required), [see Shantelle s. v. The State of New York, 11 Misc 3d 1088(a) (Ct Cl 2006)], the [personnel] files of Sgt[.] Tomes, Correction Officer Lenny, Correction Officer Strate, and both Nurse Practitioner[s] from [Bare Hill] who conducted Claimant’s SHU intake, and who [oversaw] the Claimant[’s] examination on March 7, 2016, at [Bare Hill] infirmary.
Response:
(n) These records are privileged pursuant to Civil Rights Law and Public Officers Law.
Demand:
(o) Personnnell [sic] including, but not limited to , a record of all complaints made and investigated by the New York State Department of Correction[s] and Community Supervision[,] Office of Special Investigations [and/or] Internal Affairs Department [and/or] the Inspector General prior to, and including, the subject incident on or about March 6, 2016; documents reflecting, referring or relating to pre- and post-hire background investigation; training provided to the above[-mentioned] staff for the period of staff’s hiring through March 6, 2016. All documents which relate to the incident which gave rise to this lawsuit including[,] but not limited to, Department of Correction[s’] investigation reports[, any] and all transcripts, records or documents from an infraction, disciplinary or other hearing concerning the name[d] staff member[s] and the incident that is the subject of the Claim … Copies of all directives, orders, memoranda, policy statements, procedures or [guidelines], issued by DOCCS pertaining to any concerns or [recommendations] that video camera[s] be used or install[ed] within the [SHU] at [Bare Hill], [including] records by the Office of Special Investigation based upon past or prior incident[s] reported of incident[s] of this nature.
Response:
(o) Objection. This demand is over[broad], irrelevant and not calculated to lead to relevant information. Further, it is unduly broad and overly burdensome. Your grievances etc. are found in the Upstate folder. There were no infractions issued or disciplinary matters related to your incident. Any Directives that are not privileged for security reasons can be found in the facility library.
CPLR § 3101(a) provides that there “shall be full disclosure of all matters material and necessary in the prosecution or defense of an action, regardless of the burden of proof.”
With regard to Demand (a), the request for a video recording of Claimant’s medical examination on March 7, 2016, defense counsel asserts that physical examinations are not video recorded, but that photographs were taken (Rotondi Affirmation, ¶ 9). “It is well settled that a trial court is given broad discretion to oversee the discovery process” (Castillo v Henry Schein, Inc., 259 AD2d 651, 652 [2d Dept 1999]; see Lamagna v New York State Assn. for Help for Retarded Children, 222 AD2d 559, 559-560 [2d Dept 1995]; Cruzatti v St. Mary’s Hosp., 193 AD2d 579, 580 [2d Dept 1993]). It is axiomatic that “a party cannot be compelled to produce documents that do not exist” (Castillo v Henry Schein, Inc., id.). In such cases, however, the Court concludes that Claimant “is entitled to a detailed statement, made under oath, by an employee or officer with direct knowledge of the facts as to the past and present status of the sought documents” (Longo v Armor El. Co., 278 AD2d 127, 129 [1st Dept 2000]; see Orner v Mount Sinai Hosp., 305 AD2d 307, 310 [1st Dept 2003]; Wilensky v JRB Mktg. & Opinion Research, 161 AD2d 761, 763 [2d Dept 1990]). If the video exists, Defendant is to produce same. If it does not exist, Defendant is to provide the affidavit to Claimant within thirty (30) days of the date of filing of this Decision and Order. If Claimant would like copies of the photographs, he needs to make a Demand for them. The Motion to compel a response to Demand (a) is granted to the extent set forth above.
In Demand (b), Claimant seeks a copy of the Alpha Sheet of his housing unit on March 6, 2016, “for witness purposes.” Defendant objected on the basis of privilege and confidentiality because of security issues and asserts that the sheet reveals the number and location of officers assigned to Bare Hill (Rotondi Affirmation, ¶ 6).
“It has long been recognized that the public interest is served by keeping certain government documents privileged from disclosure” (Lowrance v State of New York, 185 AD2d 268, 268 [2d Dept 1992]; see Cirale v 80 Pine St. Corp., 35 NY2d 113 [1974]). “The 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). The privilege is a qualified one, applicable depending on whether “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” [citations omitted] (Lowrance v State of New York, supra at 269). Defendant asserts that names of possible witnesses could be obtained by requesting the names of potential witnesses, rather than requesting the Alpha Sheet (id.). However, Defendant has not explained what an Alpha Sheet is, or exactly what information is contained therein and why the information that is considered confidential because of security issues cannot be redacted. Therefore, the Court concludes that Defendant shall provide Claimant with the Alpha Sheet information requested, or provide Claimant and the Court with an affidavit of a person with knowledge of Alpha Sheets, describing the information contained therein, why the information is confidential, and whether the confidential matter can be redacted so that Claimant can be provided the information he seeks. Defendant is to provide the requested Alpha Sheets, or affidavit, within thirty (30) days of the date of filing of this Decision and Order. The Motion to compel a response to Demand (b) is granted to the extent set forth above.
Demands (f), (g), and (h) seek the production of specified information from the Bare Hill SHU logbook for March 6 and 7, 2016. Defendant’s response was for Claimant to see the Bare Hill folder. Defendant does not further identify the “Bare Hill Folder,” nor does Defendant state that the information requested is confidential or privileged. It is unclear from Claimant’s papers if Claimant received the log book pages requested. The Court directs Defendant to turn over the requested log book pages, if it has not already done so, or provide Claimant and the Court with an affidavit of a person with knowledge of the log books as to whether the log books exist and, if so, why the information contained therein is privileged and should not be turned over to Claimant and, if so, whether the confidential matter can be redacted so that Claimant can be provided the information he seeks. The Motion to compel a response to Demands (f), (g), and (h) is granted to the extent set forth above.
Demand (k) seeks the total number of Use of Force incidents in SHU for the 24 month period prior to Claimant’s alleged assault. Defendant stated the number was not readily available and the demand is irrelevant and unduly burdensome. The Court finds that Claimant has not established the relevancy of his demand. Why are other incidents relevant to his alleged assault? Also, requesting such information over a two year period is over broad. Thus, the Motion to compel a response to Demand (k) is denied.
Demand (n) seeks to have the personnel files of three security officers and two nurse practitioners be produced for in camera inspection by the Court. The State objects on the basis that the information is privileged pursuant to Civil Rights Law § 50-a and the Public Officers Law. Civil Rights Law § 50-a provides that personnel records used to evaluate the performance of a correction officer are considered confidential and are not subject to inspection or review without the express written consent of the officer, unless mandated by Court order after review of the request and having given all interested parties an opportunity to be heard (Civil Rights Law §§ 50-a[1], [2]). As Claimant has failed to establish that he has complied with Civil Rights Law § 50-a, the request to compel the production of the personnel files of the correction officers is denied.
The information requested in this Demand with regard to the medical personnel is protected by Public Officers Law § 96, which provides that no State agency may disclose any records or personal information of a public employee without the request or consent of the person involved, except under certain circumstances, such as “pursuant to a court ordered subpoena or other compulsory legal process” (Public Officers Law § 96[1][k]). The purpose of this law is “to prevent … disclosure … constituting an unwarranted invasion of privacy” (Feliciano v State of New York, 175 Misc 2d 671, 672 [Ct Cl 1997]). Here, Claimant has failed to provide any basis to believe that the requested personnel information is relevant to the determination of this Claim for improper medical care (Caroselli v State of New York, UID No. 2015-044-551 [Ct Cl, Schaewe, J., Dec. 1, 2015]). Thus, the Motion to compel a response to Demand (n) by production of the personnel files of the medical personnel is denied.
Demand (o) seeks the production of all complaints made and investigated by the Inspector General relating to the officers that assaulted Claimant relating to this incident and any prior incident. He also seeks all documents relating to the incident, as well as those pertaining to the installation and use of video cameras in SHU. Defendant objected to this Demand on the basis it is over broad, irrelevant and unduly burdensome. In opposition to the Motion, Defendant asserts that the Inspector General’s investigation is ongoing and should not be subject to disclosure until completed (Rotondi Affirmation, ¶ 8).
The Court agrees with Defendant that the Inspector General’s report is not potentially discoverable until the investigation is complete. Defendant is to notify Claimant and the Court when the report is completed and advise if Defendant is providing the document to Claimant, or if another motion will be necessary to compel its production. The request for documents, as written, is over broad. This Claim alleges assault and improper medical care. There is no cause of action alleging improper training or supervision. Claimant has not made a showing as to the relevance of “pre- and post-hire background investigations,” training provided to the staff, and documents relating to other alleged assaults by these officers has to do with his Claim. In addition, some facility directives can be found in the prison library. If Claimant cannot locate the ones he is seeking, he can request specific directives in a further discovery request. The Motion to compel a response to Demand (o) is denied without prejudice.
Claimant is also complaining that he has not yet received the information requested in Demand (l) for x-rays that were taken on April 7, 2016. The State’s Response to the Demand was that the information has been requested and will be provided when received by counsel. The Motion to compel a response to Demand (l) is denied without prejudice.
In Opposition to the Motion, Defense counsel stated in his affirmation that no x-rays of Claimant were taken on April 6, 2016 (Rotondi Affirmation, ¶ 10). However, in a letter dated January 9, 2017, counsel advised the Court and Claimant that the information regarding the x-rays he received from Upstate Correctional Facility (hereinafter, “Upstate”) was incorrect. Defense counsel stated that x-rays were conducted on April 6, 2016 and he provided a copy of the radiology report. He further advised that the x-rays do not appear to be in Claimant’s medical file at either the facility where Claimant is housed or at Upstate, where the x-rays were taken. He advised that a search for the x-rays is underway. He also provided the name of the radiology technician who took the x-rays.
Based upon the foregoing, Claimant’s motion to compel is granted in part and denied in part.
March 22, 2017
Albany , New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Claimant’s Motion to compel:
| Papers Numbered | |
| Notice of Motion, Affidavit in SupportExhibits Attached | 1 |
| Affirmation in Opposition & Exhibit Attached | 2 |
| Letter dated January 9, 2017 from AssistantAttorney General Anthony Rotondi, Esq. | 3 |
| Claimant’s Reply & Exhibit Attached | 4 |
| Filed Papers: Claim, Answer |