Claimant's motion for in camera review of a file of the Office of Special Investigations (OSI) and for the issuance of subpoenas was granted in part. The Court found defendant's redactions to the OSI file appropriate and directed the defendant to produce the redacted file and several witnesses for trial without the need for subpoenas.
|Claimant short name:||LEE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-95149, M-95150, M-95151|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Kareem Lee, Pro Se|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Belinda A. Wagner, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 6, 2020|
|See also (multicaptioned case)|
Claimant, proceeding pro se, moves for an in camera review of certain documents (motion No. M-95149) and for the issuance of subpoenas to obtain witnesses and documents for trial (motion Nos. M-95150 and M-95151).
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks damages for an alleged assault and battery by correction officers at Great Meadow Correctional Facility on April 21, 2017, and for the failure to provide appropriate medical treatment for his injuries thereafter. On the day of the incident, claimant and the other inmates housed in the E-2 and E-7 companies were escorted to the south-side mess hall for breakfast by Correction Officer Dumont and another officer. As alleged in the claim, the incident began when Officer Dumont overheard a heated discussion between the claimant, Correction Officer Khloes, and a civilian cook regarding claimant's dietary restrictions. Claimant alleges Officer Dumont became hostile and threatening, "closing his fist and tightening his jaw, indicating to claimant he is mad and is going to cause imminent physical harm by telling the claimant [']you better go to the back of the line when leaving the mess hall to return to our housing unit['], trying to isolate the claimant from other inmates to cause him physical harm" (Claim, ¶ 7). Claimant alleges that unbeknownst to Officer Dumont, he was required to go to the infirmary to get his morning medication after breakfast. Upon his arrival in the infirmary, claimant informed Sergeant Reynolds and Superintendent Christopher Miller, both of whom were doing rounds in the infirmary, of the imminent danger awaiting him upon his return to his housing unit and that he "is in fear of his life" (id.). Claimant alleges he was merely instructed to file a grievance and, when he returned to his housing unit, Officer Dumont together with four other correction officers assaulted him. Claimant alleges that, as a result of the attack, he suffered multiple injuries and internal bleeding which required hospitalization.
Motion For the Court's In Camera Inspection of Documents (Motion No. M-95149)
Claimant's motion requesting an in camera review of certain documents is more properly denominated one for an Order compelling discovery pursuant to CPLR 3124. By Decision and Order dated October 25, 2018 (filed Dec. 6, 2018), this Court directed defendant to provide a further response to certain items of discovery. Claimant indicates the defendant has now provided him with everything required by the Order except two cassette tapes of his disciplinary hearing and three video tapes (claimant's statement, affirmed Nov. 22, 2019, ¶ 7).
This Court's prior Decision and Order required defendant to provide, among other things, a further response to claimant's request for " '[a]ny video, audio, tapes of incident, or recordings of information available to support the defendant's claims' " (Decision and Order dated Oct. 25, 2019, quoting Request for Disclosure dated Sept. 11, 2017, request no. 5). Defense counsel responded by providing two audio cassette tapes of the claimant's disciplinary hearing, which were immediately confiscated as contraband by prison staff. No video or digital recordings have been provided. Defense counsel indicates that she was previously unaware that the tier III hearing cassette tapes had been confiscated and will make the necessary arrangements to enable claimant to listen to them. With respect to the claimant's request for video tapes, defense counsel indicates that it does not intend to rely upon any video recordings at trial and therefore contends no further response is required. Inasmuch as claimant's demand was limited to any video or audio recordings " 'available to support defendant's claims' " (id. [emphasis added]), defendant is in compliance with this Court's prior Order. Nevertheless, upon consideration of the claimant's pro se status and the need for judicial economy, the Court will direct the defendant to provide claimant with any video or digital recordings of the April 21, 2019 incident whether they support defendant's claims or not.(1)
Claimant also seeks to obtain any audio, video or digital recordings of his interaction with Superintendent Miller and Sergeant Reynolds outside the infirmary on April 21, 2017, as well as an April 25, 2017 video or digital recording of a conversation he had with Sergeant Reynolds. Claimant alleges Sergeant Reynolds told him he did not help him because he thought he was " 'joking,' " and because of the frequency inmates express such fears (motion No. M-95149, claimant's verified statement sworn to Nov. 22, 2019, ¶ 14). Although the instant motion record does not reflect a demand for these video recordings, defendant has nevertheless responded that it possesses no such videos. According to defense counsel, the hand-held video recording of claimant's trip to the infirmary from E-block was not preserved, and the video cameras in the mess hall and infirmary were for monitoring, not recording, purposes. Consequently, claimant's request for any such video or digital recordings is denied.
Claimant's request for an in camera review of the prison's "camera system function" (claimant's verified statement, ¶ 18) to determine whether the cameras monitor or record is inappropriate and is denied. Moreover, the Court has reviewed Directives 4555 and 4942 regarding video production programs and fixed video monitoring systems and, with the exception
of certain retention requirements contained in Directive 4942, finds they are largely irrelevant to the claim (see generally CPLR 3101). Accordingly, claimant's request for a review of the prison's "camera system function" as well as his request for an Order compelling the production of Directives 4555 and 4942 are both denied.
To the extent claimant seeks the names of the correction officers who monitored the video cameras on the date of the incident and any work orders for the repair of the monitoring system, the motion is denied. It does not appear that the claimant's motion was preceded by a request for this discovery as is required (see CPLR 3120; 3124). In addition, defense counsel attests that the cameras were not malfunctioning on the date of the incident.
Claimant's request for the E-block logbook entries reflecting the identity of the correction officers who escorted the inmates to the mess hall on the date of the incident is denied as this information has now been provided (defendant's Exhibit B to motion No. M-95150) .
Claimant's request for a sworn statement from Correction Officer Kelly regarding the escort procedure for the morning breakfast run is denied. The motion is not supported by a request for this discovery. In addition, the service of interrogatories, not a request for documents, would be an appropriate procedure to elicit such information (see CPLR 3133).
In response to claimant's request for a copy of the investigation performed by the Office of Special Investigations (OSI), defendant has submitted these materials to the Court for its in camera inspection. The Court has reviewed these materials and the proposed redactions and finds that the redactions are narrowly tailored to protect personal confidential or privileged information from disclosure, or for the safety and security of the facility. Accordingly, defendant will be directed to provide claimant with a certified copy of the OSI file, as redacted, within 30 days of the date of this Decision and Order. The infirmary log, which was also submitted to the Court for in camera inspection (defendant's Exhibit 3), has been provided (see defendant's Exhibit C to motion No. M-95150).
Accordingly, claimant's motion No. M-95149 is denied except to the extent defendant is hereby
ORDERED to provide claimant with a certified copy of the OSI file, as redacted, within 30 days of the date of this Decision and Order, and is further
ORDERED that defendant is to provide claimant with any video or digital recordings of the April 21, 2019 incident within 30 days of the date of this Decision and Order. If there is a fee for the video or digital recording the defendant may, within such time, notify claimant of same and withhold providing the video or digital recording pending payment of the fee. In lieu of paying the fee, claimant may, at his option, request an inspection of the video or digital recording and, in that event, defendant is directed to make the requested video or digital recording available for inspection at the facility in which the claimant is then located, within 15 days of the date of claimant's request to inspect same. Defendant shall provide all video and other equipment necessary for the claimant to perform his inspection of the contents of the materials provided and, if requested by the claimant at least ten days prior to trial, the video or digital recording shall be made available to the Court for consideration as evidence on behalf of the claimant at the time of trial.
Motions for Subpoenas (motion Nos. M-95150 and M-95151)
A pro se litigant is not among the persons authorized to issue subpoenas thereby requiring issuance by the Court (CPLR 2302). To obtain a subpoena compelling the production of documents or the attendance of witnesses at trial, the burden rests on the party seeking the subpoena to establish that the witness testimony or documents sought are both "material and necessary" to the prosecution or defense of an action (CPLR 3101; Matter of Kapon v Koch, 23 NY3d 32, 38 ; Romance v The State of New York, Ct Cl, June 3, 2014, DeBow, J., claim No. 117475, UID No. 2014-038-525; Allaway v The State of New York, Ct Cl, April 7, 2010, Scuccimarra, J., claim No. 114865, UID No. 2010-030-532). Material and necessary means relevant, "regardless of whether discovery is sought from another party (see CPLR 3101 [a] ) or a nonparty" (Forman v Henkin, 30 NY3d 656, 661 , citing 3101 [a]).
Motion No. M-95150
In motion No. M-95150, claimant has requested that the following witnesses and documents be subpoened for use at trial:
1. Correction Officer Desprez and the medical log book from April 21, 2017;(2)
2. Chief Investigator Doherty (Brian) Irwin , together with the investigation of the OSI regarding the subject incident;
3. F.O.I.L Officer K. White of Great Meadow Correctional Facility, together with claimant's request for the F-block video footage;
4. Correction Officer S. Fountain, together with the E-block morning log book for April 21, 2017;
5. Dr. Seth Richter, together with a request for consultation of April 26, 2017, and all consultation reports and orders;
6. Commissioner of Security, Joseph Bellinger, together with DOCCS' Directives regarding the operation of the camera system function and copies of certain regulations.
With the exception of Correction Officers Desprez and Fountain, claimant failed to establish that the anticipated witness testimony or documents sought to be subpoened are material and necessary to the prosecution of his claim.
Claimant's request to call Correction Officer Desprez is granted so that he can testify regarding the substance of the infirmary log book entries and who was present at the time of claimant's arrival when he allegedly informed Sergeant Reynolds and Superintendent Miller of an imminent assault by correction officers. The photocopy of the relevant infirmary logbook (defendant's Exhibit C to motion No. M-95150) is difficult to read and Officer Desprez's testimony may be necessary to decipher it.
Claimant's request to subpoena Chief Investigator Doherty (Brian) Irwin is denied as the proffered reason for the request- to demonstrate the insufficient nature of the investigation performed by the OSI- fails to support the allegations of intentional and negligent conduct alleged in this case. OSI's investigation is not at issue and the Court is not bound by its determinations. As set forth previously, defendant has agreed and is directed to provide certified copies of OSI's redacted investigatory file within 30 days of the date of this Decision and Order.
Claimant's request to subpoena F.O.I.L. Officer K. White is denied as claimant failed to establish that her anticipated testimony is relevant to the claim.
Claimant's request for the attendance of Correction Officer S. Fountain, the E-block officer on duty, will be granted to clarify the breakfast run procedure and claimant's whereabouts at the conclusion of breakfast. In addition, Officer Fountain can discuss the substance of the E-block morning log book, an unredacted certified copy of which has now been provided to the claimant (motion No. 95150, defendant's Exhibit B).
Claimant's request to subpoena Dr. Seth Richter to testify regarding his medical condition upon his admission to the hospital is unnecessary as this information may be ascertained from the hospital records. In addition, defendant indicates that it has provided claimant with all of his medical records in its possession. To the extent claimant may be seeking additional records that are not in DOCCS' possession, he may request certified copies from the hospital where he was treated.
Claimant's request to subpoena Commissioner of Security Joseph Bellinger, together with Directives 4555, 4942 and 4943 and copies of certain regulations is denied. Claimant seeks to subpoena Commissioner of Security Bellinger to provide expert testimony on his behalf. It is well settled, however, that expert opinion testimony may not be compelled (see Green v State of New York, Ct Cl, July 2, 2019, Collins, J., claim No. 128214, UID No. 2019-015-159). With respect to the requested Directives, claimant has not demonstrated their relevance. With respect to the requested regulations, claimant may request the Court take judicial notice of any relevant statutes or regulations at the time of trial.
Accordingly, claimant's motion No. M-95150 is granted to the extent defendant is directed to produce, at the time and place of trial, the following witnesses and documents on the claimant's behalf: Correction Officer Desprez, together with a certified copy of the medical log book from April 21, 2017, as redacted in Exhibit C, and Correction Officer Fountain, together with a certified copy of the E-block log book for April 21, 2017.
Motion No. M-95151
In motion No. M-95151, claimant has requested the issuance of subpoenas to obtain the testimony of Correction Officer R. Dumont, Sergeant D. Reynolds, Correction Officer Goodsell, Correction Officer Beatty, Correction Officer Race, Superintendent Christopher Miller, Inmate Robert Haigler, Inmate Jose Vasquez, and Nurse Practitioner Ted Nesmith.
Defendant does not object to the issuance of subpoenas to obtain the testimony of Correction Officer Dumont, Sergeant Reynolds and Nurse Practitioner Nesmith. With respect to the claimant's request for the remaining witnesses, the Court finds that the testimony of Officers Goodsell and Beatty are relevant to the prosecution of the claim.
Claimant's request to subpoena Superintendent Miller is denied as his testimony would be redundant to that of Sergeant Reynold's. Claimant's request to subpoena Inmate Haigler is denied as he testified at the claimant's disciplinary hearing and that testimony may be used in lieu of his live testimony. Claimant's request to subpoena Jose Vazquez is denied as claimant has provided no reason- other than the fortuity of his nearby cell location - to believe Inmate Vazquez did in fact overhear Sergeant Reynolds's alleged admission regarding the reason he failed to respond to the claimant's request for help. Claimant's request to subpoena Officer Race is denied as claimant failed to demonstrate the relevance of his anticipated testimony.
Upon consideration of the difficulty encountered by pro se inmates in serving subpoenas, the Court directs the defendant to produce Correction Officers Dumont, Goodsell, Beatty, Nurse Practitioner Ted Nesmith and Sergeant Reynolds at the time of trial without the need for a subpoena. All of these witnesses are defendant's employees and under its control.
Accordingly, claimant's motion No. M-95151 is granted to the extent defendant is directed to produce Correction Officers Dumont, Goodsell, Beatty, Nurse Practitioner Ted Nesmith and Sergeant Reynolds at the time of trial to give testimony on the claimant's behalf.
May 6, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Notice of motion dated November 22, 2019;
2. Verified statement of Kareem Lee sworn to November 22, 2019, with attachments;
3. Affirmation in opposition dated February 3, 2020, with Exhibits A-E;
4. Correspondence from Belinda A. Wagner, A.A.G., with in camera review Exhibits 1-3.
1. Notice of motion dated November 22, 2019;
2. Verified statement of Kareem Lee sworn to November 26, 2019;
3. Affirmation in opposition dated February 3, 2020, with Exhibits A-D.
1. Notice of motion dated November 22, 2019;
2. Affidavit in support sworn to November 29, 2019;
3. Affirmation in opposition dated January 29, 2020.
1. Directive 4942 (defendant's Exhibit 2 submitted for the Court's in camera review), requires that fixed video monitoring recordings depicting the use of force be retained for at least 30 days.
2. A page of the claimant's original motion may be missing as claimant's first numbered paragraph is "4" and begins with a request to subpoena Correction Officer Desprez.