Defendant's motion for protective order granted, disclosure of correctional facility Personal Alarm System Manual would compromise correctional security, at the facility and statewide. Claimant's motion for production of documents and items denied in the absence of proof that any relevant discovery request had been made by claimant.
|Claimant short name:||EDWARDS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-90213, M-90274|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||MARK EDWARDS, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Glenn C. King, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 17, 2017|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim in which he alleges that he was assaulted by correction officers at Clinton Correctional Facility (CF) on July 30, 2013. A prior decision and order of this Court directed defendant to disclose to claimant "PAS [Personal Alarm System] log entries and other similar records and the PAS policies and procedures, or an affidavit of a personal knowledge demonstrating that such entries, records, policies and procedures do not exist, and the PAS Manual pursuant to [claimant's] demand number 5, provided that defendant may move for a protective order denying such disclosure" (Edwards v State of New York, Claim No. 123656, Motion No. 88265 (unpublished decision, Ct Cl, DeBow, J., filed Feb. 21, 2017]). Defendant now moves for a protective order denying disclosure of the PAS Manual (M-90213). Claimant has submitted papers on the motion and makes a separate motion to "renew" discovery demands (M-90274), which defendant opposes.
CPLR § 3101 (a) provides that there "shall be full disclosure of all matter material and necessary in the prosecution and defense of an action." However, CPLR 3103 (a) provides, in relevant part that "[t]he court may . . . on motion of any party . . . from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any such device. Such order shall be designed to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts." "The determination as to the terms and provisions of discovery as regulated to prevent abuse by protective orders under CPLR 3103 (subd. [a]) rests in the sound discretion of the court to which application is made" (Matter of U.S. Pioneer Elecs. Corp. (Nikko Elec. Corp. of Am.), 47 NY2d 914, 916 ).
Defendant seeks a protective order for the PAS materials sought in claimant's demand number 5 on the grounds that disclosure would cause prejudice to defendant, that the materials are irrelevant to the prosecution of the claim and that disclosure of those materials "would implicate serious institutional safety and security concerns to the State correctional system" (King Affirmation, ¶ 4). Defendant argues that claimant has not demonstrated how the PAS materials are relevant to a claim of "straightforward assault by Corrections Officers" (id., ¶ 5). In support of its motion, defendant submits the affidavits of Gary J. Waldron, a Correctional Security Technical Services Specialist with the Department of Corrections and Community Services (DOCCS), and Earl Bell, First Deputy Superintendent at Clinton CF. Both Waldron and Bell aver that no other PAS policies, procedures, log entries or other similar records other than the Clinton CF PAS Manual that are responsive to claimant's demand number 5 are in existence (see id., Exhibit 1 [Waldron Affidavit, at ¶ 28]; Exhibit 2 [Bell Affidavit, at ¶ 8]). Inasmuch as it is axiomatic that a party cannot be compelled to produce documents that do not exist, defendant will not be required to disclose such materials.
As for the Clinton CF PAS Manual, Bell avers that the version of the Manual that was in effect on the date of the alleged correction officer assault on July 30, 2013 could not be located despite a diligent search therefor (see id., Exhibit 2 [Bell Affidavit, ¶ 16]). However, Bell, who is the "Approving Authority" for the Manual, avers that the PAS Manual "has received very minor revisions over the years," and that the July 2013 version "would have contained sensitive security material and information regarding [Clinton CF] security practices" (id., Exhibit 2 [Bell Affidavit, ¶¶ 9, 15-17]). In the absence of the July 2013 version of PAS Manual, defendant has submitted a newer version of the PAS Manual for in camera review (see id., Exhibit 2 [Bell Affidavit, ¶ 16; Exhibit A]).
Waldron and Bell aver that the PAS Manual was assigned a "D" Distribution Code, meaning that security reasons preclude release of it to inmates, law libraries or the public because it contains "sensitive security material and information regarding [DOCCS] security practices and, as such, [DOCCS] consider[s] them as contraband items that may not be possessed by inmates" (id., Exhibit 1 [Waldron Affidavit, ¶16]; Exhibit 2 [Bell Affidavit, ¶ 12]). Waldron and Bell both assert that DOCCS considers it a "breach of [DOCCS] security to inform inmates of how staff and uniformed personnel respond to specific situations" because if inmates possess that information "they might seek to take advantage of any perceived weaknesses in [DOCCS] procedures to plan an escape, plan an assault, or work to introduce contraband into a correctional facility" (id., Exhibit 1 [Waldron Affidavit, ¶ 17]; Exhibit 2 [Bell Affidavit, ¶ 13]). Waldron and Bell aver the Clinton CF PAS Manual "contains very specific information regarding, among other things, the type(s) of communication systems in operation at the facility, how the communications systems operate within the facility, where the systems are located, the procedures for operating the systems, and the nature and extent of backup systems" (id., Exhibit 1 [Waldron Affidavit, ¶ 18]; Exhibit 2 [Bell Affidavit, ¶ 14]). According to Waldron and Bell, "[i]f this sensitive information was placed in the hands of an inmate, it could without question be used to impede a correction officer's ability to swiftly and effectively respond to dire situations [such as hostage-taking, disturbances, arson, assaults, riots, homicides, suicides and escapes]," and that "[i]f inmates learn how DOCCS communicates and operates within the facility it could seriously impact the efficacy of its procedures and the safety, security, life and well-being of [DOCCS] staff, inmates, visitors and the community at-large" (id., Exhibit 1 [Waldron Affidavit, ¶¶ 20-22]; Exhibit 2 [Bell Affidavit, ¶ 19]). Waldron avers that "[p]lacing such sensitive information [contained in the PAS Manual] in the hands of the Claimant (and anyone else he can share it with) can, and will, compromise the safety and security of those present at Clinton Correctional Facility as well as any other facility under DOCCS' control" (id., Exhibit 1 [Waldron Affidavit, ¶ 24]; see also id., Exhibit 2 [Bell Affidavit, ¶ 19]). Finally, Waldron avers that "none of the information contained in the [PAS Manual] is germane to Claimant's claim or of any probative value with respect to a material issue in the litigation" (id., Exhibit 1 [Waldron Affidavit, ¶ 26]).
Claimant offers no argument in opposition to defendant's motion, asserting only that he had received defendant's motion papers after he had mailed his motion to renew discovery (M-90274), and that defendant's motion has no bearing on his motion (see Edwards Submission, filed April 21, 2017, at ¶¶ 2-3).(1)
In camera review of the Clinton CF PAS Manual reveals its manifest relevance to the prosecution of this claim inasmuch as the claim alleges that Correction Officer Riel activated his PAS immediately prior to the alleged assault in an effort to precipitate a gang assault of claimant by correction officers (see Claim number 123656, at ¶¶ 7, 8), and the disclosure of this Manual "will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claim" (Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421 [2d Dept 1989]). However, for the reasons elucidated in the affidavits of Waldron and Bell, the Court concludes that the disclosure of the Clinton CF PAS Manual may likely compromise the safety and security of Clinton CF and the state correctional system, and thus, the Court will grant that part of defendant's motion that seeks a protective order addressed to the PAS Manual.
MOTION TO RENEW DISCOVERY DEMANDS (M-90274)
Claimant moves to renew discovery demands that he asserts have yet to be produced. (see Undated Discovery Demands Renewed). Claimant also seeks permission to present the PAS device and batons used in the alleged assault as evidence at trial.
Claimant seeks the disciplinary records of five correction officers involved in the alleged assault "concerning excessive uses of force, and/or false reports," asserting that "[a] request has long been made for the production of the  disciplinary records" (id., at p. 1, ¶ 1). Defendant objects to the demand as premature as claimant had "never previously requested this information" (King Affirmation in Opposition, ¶ 5). Defendant also objects because claimant did not provide notice of this motion to the correction officers whose records he seeks, and further that the records are confidential under Civil Rights Law § 50-a and claimant has not shown a factual predicate for the intrusion into the records.
Claimant's request for the disciplinary records will be denied for the following reasons. First, claimant has not appended a copy of the initial discovery demand seeking the disciplinary records of these five officers, and defendant denies that any such demand was made.(2) Thus, inasmuch as claimant has not demonstrated that defendant was served with a discovery demand seeking the disciplinary records of those five correction officers, the motion is premature. Moreover, even if defendant had been served with such a demand, that branch of claimant's motion that seeks the disciplinary records would be denied as the motion was not made on notice to those officers (see Civil Rights Law § 50-a ; see also Buczynski v State of New York, UID No. 2016-038-542 [Ct Cl, DeBow, J., July 8, 2016]).
Claimant also seeks the investigation reports of the Clinton County Sheriff's Office and the DOCCS Inspector General who allegedly investigated the alleged assault. Again, claimant has not attached to this motion a copy of any discovery demand(s) for such reports, and thus the motion appears premature. Even if the demand(s) were served on defendant, the Court cannot make a determination as to the propriety of the demand without a copy thereof.
By way of this motion, claimant requests "ALL video records generated in association with the incidents giving rise to the instant claim occurring at the Clinton MAin [sic] C.F., upon : 7/30/13" (Undated Discovery Demands Renewed, p.5, at ¶ 5 [emphasis in original]), and he contends that the video that was previously produced to him was selectively edited. Once again, claimant has not attached to this motion a copy of the discovery demand for such video records, and thus the motion appears premature. To the extent that claimant makes such a demand and defendant declines to produce the video records, or maintains that such video records do not exist, claimant may make an appropriate motion at that time.
Claimant's request to present the PAS device and batons used in the alleged assault at trial will be denied as unnecessary. To the extent that claimant is in possession or comes into possession of such items through discovery, he may offer them at trial, at which point the Court will rule on the admissibility of such items of evidence. If claimant is seeking production of these items through this motion without having first made a demand for such items, that request is denied, as claimant has not demonstrated that he has requested production of those items from defendant and that defendant has denied that request.
Finally, the Court feels compelled to address claimant's allegations that "defendants should not be allowed to communicate with the Court ex parte" (id., p. 6, "Defendant's Advantage," at ¶ 1), and his concerns that defendant will be "given indiscriminate favor over claimant, simply because claimant happens to be incarcerated" (id., p.7, at ¶8). The Court wishes to make it clear that it has not had any ex parte communications with defendant about this matter, and it will fairly and impartially hear this matter without regard to the status of any party to this proceeding. To the extent that claimant is suggesting recusal or disqualification, any such request should be made by motion on notice.
Accordingly, it is
ORDERED, that defendant's motion number M-90213 is GRANTED, to the extent that defendant shall not be required to produce to claimant the Clinton CF PAS Manual; and it is further
ORDERED, that that part of the Court's January 26, 2017 decision and order in Edwards v State of New York, Claim No. 123656, Motion No. 88265 (unpublished decision, Ct Cl, DeBow, J., filed Feb. 21, 2017) that directed defendant to produce the Clinton CF PAS Manual is hereby VACATED; and it is further
ORDERED, that claimant's motion number M-90274 is DENIED.
July 17, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim number 123656, filed December 13, 2013;
(2) Notice of Motion for Protective Order (M-90213), dated April 6, 2017;
(3) Affirmation of Glenn C. King, AAG, in Support of Protective Order, dated April 6, 2017,
with Exhibits 1 [Affidavit of Gary Waldron, sworn to March 29, 2017] and 2 [Affidavit of
Earl Bell, sworn to April 3, 2017, with Exhibit A submitted in camera];
(4) Submission of Mark Edwards on Motion No. M-90213, filed April 21, 2017;
(5) Notice of Motion (M-90274), dated April 11, 2017, with Attachments [Undated "Discovery
Demands Renewed," Undated "Demands" Addendum, and Certified Mail Return Receipt
(6) Affirmation of Glen C. King, AAG, in Opposition (M-90274), dated May 14, 2017;
(7) Decision and Order in Edwards v State of New York, UID No. 2017-038-509 (Ct Cl, DeBow,
J., Jan. 26, 2017);
(8) Decision and Order in Edwards v State of New York, Claim No. 123656, Motion No.
M-86773 (unpublished decision, Ct Cl, DeBow, J., filed Jan. 29, 2016).
1. In his papers in support of his motion to renew discovery (M-90274), which were allegedly mailed before he received defendant's motion for a protective order (M-90213), claimant alludes to defendant's arguments that the disclosure of the PAS material would jeopardize facility security and he demands assignment of counsel to defend against those claims (see Undated Discovery Demands Renewed [M-90274], p.7, at ¶¶ 5-7). This is not a substantive response to defendant's position, and any request for assignment of counsel is not properly before the Court as it must be done on motion on appropriate notice (see CPLR 1101 [c]).
2. Claimant did, however, make a demand seeking the "disciplinary records lodged against defendants alleging abuse or excessive uses of force and/or false reports" (Decision and Order, Edwards v State of New York, Claim No. 123656, Motion No. M-86773 [unpublished decision, Ct Cl, DeBow, J., filed Jan. 29, 2016], quoting March 2, 2015 Document Request, Demand 4), and the Court subsequently granted a protective order against the disclosure inasmuch as it was unclear as to whose personnel records were sought (Edwards v State of New York, UID No. 2017-038-509 [Ct Cl, DeBow, J., Jan. 26, 2017]).