Motion to compel discovery granted in part; informal request for sanctions denied
|Claimant short name:||BUTLER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Ricky Butler, Pro Se|
|Defendant's attorney:||HON. LETITIA JAMES
Attorney General of the State of New York
By: Ray A. Kyles, Esq., AAG
Ed J. Thompson, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||September 5, 2019|
|See also (multicaptioned case)|
Pro se Claimant Ricky Butler brings this motion, pursuant to CPLR 3124, to compel the production of certain discovery and responses to interrogatories.
The Claim alleges that Defendant failed to adequately protect Claimant from his mental health illness and self-injurious behavior between September 19, 2011 to January 9, 2012 while he was an inmate at the Auburn and Wende Correctional Facilities.
Claimant attaches to his motion a "Discovery and Interrogatories Demand" dated October 6, 2018. Defendant answered Claimant's interrogatories on April 10, 2019 and responded to Claimant's discovery demands on April 17, 2019 (see Discovery and Interrogatories Demand, Notice of Mot, attach). Consequently, Defendant contends that Claimant's motion to compel is moot (Defendant's Affirmation in Opp, at 1). Although Claimant recognizes that Defendant responded to his interrogatories and demands, he counters that some of Defendant's responses to certain demands and interrogatories are deficient. To the extent that Claimant does not specifically object to Defendant's discovery production and responses to the interrogatories, the motion is denied as moot. Claimant's specific objections to Defendant's responses to his discovery demands and interrogatories are addressed below.
Article 31 of the CPLR which governs discovery provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof . . ." (CPLR 3101 [a]). This sets a broad framework for discovery as "[t]he test is one of usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 ).
"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 Voss v Duchmann, 129 AD3d 1697, 1698 [4th Dept 2015]. Discovery may be denied if the demand is found to be unduly burdensome or not "reasonably calculated" to lead to material and necessary information (Van Horn v Thompson & Johnson Equip. Co., 291 AD2d 885, 885-886 [4th Dept 2002]). As the party seeking disclosure, it is Claimant's burden to establish that the information sought is relevant to the issues raised by the claim (see Davis v Cornerstone Tel. Co., LLC, 78 AD3d 1263, 1264 [3d Dept 2010]).
Department of Corrections and Community Supervision ("DOCCS") Directives (Additional Discovery Request Nos. 1, 10)
Claimant makes two requests for three separate DOCCS Directives. Claimant's Additional Discovery Request No. 1 sought "Directives on Maintenance of safety of cells and inmates in effect in 2011" (Additional Discovery Request ¶ 1, Notice of Mot, attach [emphasis added]). In response, Defendant provided Directive No. 4064 which sets forth safety measures to be followed in various areas of the correctional facility (Defendant's Affirmation in Opp, Exhibit 2A). However, Defendant provided the most recent version of the Directive dated March 21, 2019. Accordingly, Defendant is directed to provide the version of Directive No. 4064 then in effect in 2011. If this document is unavailable, Defendant should submit "'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 document'" (Mercado v St. Andrews Hous. Dev. Fund Co., 289 AD2d 148, 148 [1st Dept 2001], quoting 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]).
Moreover, in Additional Discovery Request No. 10, Claimant requested "Directives 4101 and 4902" (Additional Discovery Request ¶ 10, Notice of Mot, attach). Unlike Discovery Request No. 1, this Request did not specifically seek those Directives in effect in 2011. Thus, Claimant's request could be reasonably interpreted as (1) a request for those Directives currently in effect or (2) a request for those Directives in effect as of 2011. Nevertheless, Defendant failed to provide either. Defendant responded by providing a version of Directive No. 4101, dated January 26, 2012, and a subsequent revision dated April 10, 2012 (Defendant's Affirmation in Opp, Exhibit 2D). With respect to Directive No. 4902, Defendant provided a Revision Notice dated April 10, 2003 and only the first page of the three-page Directive dated March 17, 2003 (id.). The Court determines that Defendant's response to these requests was deficient. Because Claimant clarified that he is seeking Directives No. 4101 and 4902 in effect as of 2011, the Court hereby directs Defendant to provide such directives. If Defendant no longer possesses such Directives, it should submit 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 Directives sought (see Mercado, 289 AD2d at 148).
Regulations (Additional Discovery Request Nos. 11, 12)
Defendant failed to produce copies of 14 NYCRR 27.7, 14 NYCRR 27.4 (b), 9 NYCRR 7602.1, 9 NYCRR 7651.16, and 9 NYCRR 7651.26 as requested by Claimant in his Additional Discovery Request Nos. 11 and 12 (Additional Discovery Request ¶¶ 11, 12, Notice of Mot, attach). Accordingly, Defendant is directed to produce each of these regulations in effect in 2011.
Claimant's Suicide Watch Log-Books (Additional Discovery Request No. 5)
Claimant's Additional Discovery Request No. 5 seeks his suicide watch logs from September 2011 to January 9, 2012 (Additional Discovery Request ¶ 5, Notice of Mot, attach). Defendant has only produced the log books for November 28, 2011 through December 16, 2011 (Defendant's Affirmation in Opp, Exhibit 2C). Accordingly, Claimant's motion to compel the production of his suicide watch log books is granted to the extent he seeks such log books from September 2011 to November 28, 2011 and from December 16, 2011 to January 9, 2012. If Defendant does not have this documentation, it must submit 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 (see Mercado, 289 AD2d at 148).
Request for Photographs (Additional Discovery Request No. 14)
Claimant demanded all color photographs of each time he inflicted injury upon himself as alleged in the Claim (Additional Discovery Request ¶ 14, Notice of Mot, attach). Claimant avers that there should be photographs from 14 different days (October 7, 2011; October 11, 2011; October 12, 2011; October 13, 2011; October 17, 2011; October 31, 2011; November 1, 2011; December 1, 2011; December 2, 2011; December 17, 2011; December 18, 2011; December 21, 2011; December 28, 2011; and January 6, 2012) (Additional Discovery Request ¶ 14, Notice of Mot, attach ; Claimant's Aff in Opp ¶ 22). However, Defendant only produced photographs for three days (October 17, 2011, December 1, 2011, and December 18, 2011) (see Defendant's Affirmation in Opp, Exhibit 2H). Accordingly, Defendant is directed to provide any remaining photographs in its possession. If Defendant does not have any additional photographs, it must submit 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 photographs (Mercado, 289 AD2d at 148).
Office of Mental Health ("OMH") Manual (Additional Discovery Request No. 3)
Claimant argues that Defendant's response to his request for "OMH Corrections Based operations manual in effect in 2011" was deficient because Defendant only included the section of the Manual relating to "Seclusion and Restraint" (Claimant's Aff in Opp ¶ 8) Specifically, Claimant explains that he is seeking "all of the safety and security related rules associated with inmates under OMH/DOCCS care" (id. ¶ 7). As an initial matter, the OMH Manual contains policies "related to the provision of mental health services for patients being treated in State operated psychiatric facilities" (OMH Official Policy Manual, I-100 [emphasis added]). Thus, the OMH Manual does not govern the provision of mental health services in a state correctional facility. Indeed, the rules outlining the collaborative relationship between OMH and DOCCS in providing mental health services to inmates are set forth in DOCCS Directive No. 4101 which Claimant has already requested (see Additional Discovery Request ¶ 10, Notice of Mot, attach). Accordingly, Claimant's motion to compel a response to Additional Discovery Request No. 3 is denied.
Maintenance Records and Master Index (Additional Discovery Request Nos. 6 and 7)
In Additional Discovery Request No. 6, Claimant seeks the "maintenance records" for Auburn Correctional Facility's Residential Crisis Treatment Program ("RCTP") Unit from 2006 to 2011 and for Wende Correctional Facility RCTP from 2007 to 2012 (Additional Discovery Request ¶ 6, Notice of Mot, attach). The Court agrees with Defendant that this request is overly broad and burdensome (see e.g. Terry v State of New York, UID No. 2008-040-001, [Ct Cl, McCarthy, J., Jan. 3, 2008] [holding that the Claimant's request for all repair and work orders for Bare Hill Correctional Facility for a one-year period was, among other things, overbroad and burdensome]). Similarly, the Court finds that Claimant's Additional Discovery Request No. 7 for the "master index" of the Auburn and Wende Correctional Facilities is vague, overbroad, burdensome and may contain confidential information (see e.g. Tyree v State of New York, UID No. 2001-019-524 [Ct Cl, Lebous, J., Apr. 19, 2001]). Accordingly, the Court determines that Defendant's responses to Additional Discovery Requests Nos. 6 and 7 are satisfactory and the motion to compel responses to the same is denied.
Interrogatories are properly denied when they seek information that is "palpably improper, i.e., irrelevant, overly broad, or burdensome," or when they are drafted in a manner that is "vague and indefinite" (Jefferson v State of New York, 60 AD3d 1215, 1215 [3d Dept 2009]). That is the case, for example, when interrogatories are "unreasonably detailed" when viewed against the backdrop of a case that does not warrant complex discovery (see Village of Mamaroneck v State of New York, 16 AD3d 674, 674 [2d Dept 2005] [internal quotation marks and citation omitted]). Likewise, interrogatories may be struck when they consist of multiple subparts or reference outside documents (see Botsas v Grossman, 7 AD3d 654, 655 [2d Dept 2004]).
Many of Claimant's interrogatories violate these principles, as they are confusing, unreasonably detailed, or contain multiple subparts, and are therefore improper (see Blotcher v Upjohn Co., 54 AD2d 851, 851 [1st Dept 1976]; McFadden v State of New York, UID No. 2015-049-014 [Ct Cl, Weinstein, J., Feb.20, 2015]).
Food Served to Inmates (Interrogatory No. 4)
In Interrogatory No. 4, Claimant inquired as to whether inmates in Auburn Correctional Facility's RCTP Unit generally receive the same food as inmates in the general population and whether that was the case in September and October 2011 (Interrogatory ¶ 4, Notice of Mot, attach). The Court agrees with Defendant that this interrogatory is not material to the Claim or Claimant's injuries. Whether inmates in the RCTP Unit generally receive the same food as inmates in the facility's general population has no bearing on whether Claimant received a chicken bone from the correctional facility's kitchen and injured himself with the same. Despite its valid objection, Defendant answered this interrogatory by stating that the all of Auburn Correctional Facility's food is received from the same vendors but may be prepared differently (Defendant's Affirmation in Opp, Exhibit A at 1 [Response to Question 4]). Accordingly, the motion to compel a response to Interrogatory No. 4 is denied.
Facility Repairs (Interrogatory No. 16)
Interrogatory No. 16 relates to repairs of the RCTP Unit in the Auburn Correctional Facility in the Fall of 2011 and is divided into several different subparts inquiring as to the reason for the repairs, the individual who authorized the repairs, and when the repairs were started and completed (Interrogatory ¶ 16, Notice of Mot, attach). Defendant objected to this interrogatory as patently improper and immaterial, but nevertheless confirmed that repairs were made to the Auburn Correctional Facility's RCTP Unit in the Fall of 2011 (Defendant's Affirmation in Opp, Exhibit 1 at 3 [Response to Question 16]). In his reply, Claimant contends that the balance of the information sought is material to show "the urgency of the facility's safety concerns" at the time that Claimant was allegedly injuring himself with caulk (Claimant's Aff in Opp ¶ 32).
It is well settled that "[e]vidence of subsequent repairs and remedial measures is not discoverable or admissible in a negligence case unless there is an issue of maintenance or control" (Cleland v 60-02 Woodside Corp., 221 AD2d 307, 308 [2d Dept 1995]; see Caprara v Chrysler Corp., 52 NY2d 114, 122 ). Interrogatory No. 16 essentially seeks evidence regarding Auburn Correctional Facility's remedial measures to the RCTP Unit following Claimant's alleged use of caulk to inflict harm upon himself. Because it is undisputed that Defendant controls and maintains the Auburn Correctional Facility, the exception to the general exclusionary rule is inapplicable here. Accordingly, the motion to compel a response to Interrogatory No. 16 is denied.
Reports of Self-Injury by Caulk (Interrogatory No. 18)
In Interrogatory No. 18, Claimant asks whether there were reports of other inmates in Auburn Correctional Facility's RCTP Unit committing self-injury by using caulk from 2008 to 2011 (Interrogatory ¶ 18, Notice of Mot, attach). Defendant responded that no such reports exist "other than perhaps medical records of other inmates" which it claims is privileged and confidential (Defendant's Affirmation in Opp, Exhibit 1 at 4 [Response to Question 18]). Although the Court determines that this response is sufficient as a general matter, Defendant failed to provide the Court with adequate proof in the form of a sworn detailed statement from an employee or officer with personal knowledge who can attest to the nonexistence of such reports (see Medina v State of New York, UID No. 2007-039-009 [Ct Cl, Ferreira, J., Feb. 28, 2007]). Accordingly, the Court hereby directs Defendant to submit 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 reports of inmates in Auburn Correctional Facility's RCTP Unit injuring themselves by using caulk from 2008 to 2011.
Specific Self-Injury Incident in January 2012 (Interrogatory No. 28)
Claimant also seeks confirmation regarding another inmate's admission to the Erie Country Medical Center's Emergency Room from Wende Correctional Facility for a specific self-injury in early January 2012 (Interrogatory ¶ 18, Notice of Mot, attach). Defendant objects to this interrogatory on the ground that it no longer possesses information responsive to the demand other than the other inmates' medical records which are privileged and confidential (Defendant's Affirmation in Opp, Exhibit A at 5 [Response to Question 28]).
The Court concludes that Defendant's response is inadequate and nonresponsive to the specific interrogatory. This interrogatory does not call for the dissemination of privileged and confidential medical information; rather, it calls for an affirmative or negative answer as to whether an inmate was taken from Wende Correctional Facility's RCTP Unit to Erie County Medical Center on January 9, 2012 or any of the eight days prior for committing a specific act of self-injury. Accordingly, Claimant's motion to compel a response to Interrogatory No. 28 is granted.
Lastly, Claimant's informal request for sanctions, raised for the first time in his reply, was improper as it deprived Defendant of the opportunity to respond (see North Shore Envtl. Solutions, Inc. v Glass, 17 AD3d 427, 428 [2d Dept 2005]). In any event, Claimant has not demonstrated that Defendant's belated response to his discovery demands was willful, contumacious, taken in bad faith, or prejudicial (see CPLR 3126; see Green v State of New York, UID No. 2015-038-539 [Ct Cl, DeBow, J., June 12, 2015]). Consequently, the request for sanctions is denied.
Therefore, in accordance with the foregoing, it is
ORDERED that Claimant's motion to compel a supplemental response to Additional Discovery Requests Nos. 1, 5, 10, 11, 12, and 14 and Interrogatory Nos. 18 and 28 is granted and Defendant is directed to submit its supplemental response within forty-five (45) days of the filing of this Decision and Order in accordance herewith;
ORDERED that Claimant's motion to compel is otherwise denied;
ORDERED that Claimant's informal request for sanctions is denied.
September 5, 2019
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Notice of Motion, Affidavit of Ricky Butler, sworn to November 21, 2018, in support, with attachments thereto.
2) Affirmation of Ray A. Kyles, Esquire, Assistant Attorney General, in opposition, with exhibits attached thereto.
3) Affidavit of Ricky Butler, sworn to on April 23, 2019, in opposition to Defendant's Affirmation in Opposition.