Opinion
# 2012-049-017 Claim No. 112968 Motion No. M-80987
04-05-2012
BROWN v. THE STATE OF NEW YORK
Synopsis
Claimant Geneo Brown, incarcerated and proceeding pro se, brings this motion for a court order allowing the issuance of subpoenas for the following four witnesses, to appear at his trial presently scheduled for May 4, 2012: Denise Fuller, Dr. Morales Brown, Peter Russell, and Dr. Donald Sawyer. Case information
UID: 2012-049-017 Claimant(s): GENEO BROWN Claimant short name: BROWN Footnote (claimant The caption has been amended sua sponte to reflect the name) : proper spelling of claimant's first name. Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant (s): Third-party defendant(s): Claim number(s): 112968 Motion number(s): M-80987 Cross-motion number (s): Judge: David A. Weinstein Claimant's attorney: Geneo Brown, Pro Se Defendant's Eric T. Schneiderman, NYS Attorney General attorney: By: Roberto Barbosa, Assistant Attorney General Third-party defendant's attorney: Signature date: April 5, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Geneo Brown, incarcerated and proceeding pro se, brings this motion for a court order allowing the issuance of subpoenas for the following four witnesses, to appear at his trial presently scheduled for May 4, 2012: Denise Fuller, Dr. Morales Brown, Peter Russell, and Dr. Donald Sawyer.
The claim at issue, filed November 1, 2006, alleges that Brownwas transferred from Southport Correctional Facility ("Southport") to Elmira Correctional Facility ("Elmira") on November 15, 2005, after he engaged in a hunger strike for three days to protest his "mistreatment" at Southport. Brown was held in a psychiatric observation cell for 2 days and then in an isolation room for approximately 30 days thereafter. According to the claim, these actions were carried out by prison officials without good reason, in the absence of a diagnosis that claimant was suffering mental illness, and on the basis of "fraudulent documents." The claim sets forth causes of action for negligence, false imprisonment, fraud, medical malpractice and various constitutional torts.
Claimant is referred to in this opinion as "Brown," while Morales Brown, M.D. is called "Dr. Brown."
Brown also raised constitutional claims regarding this incident in a federal district court action, which was dismissed earlier this year (see Brown v McGinnis, et al., 2012 WL 267638 [WD NY 2012]).
In support of his present motion, claimant submits an affidavitcontaining the following assertions about the individuals whose testimony he seeks:
The submission is labeled "Affidavit/Affirmation." It is made under penalty of perjury, but not notarized. Defendant's opposition to this motion does not raise any objection to the form of this submission.
•Ms. Fuller was the "primary therapist" at Southport on November 15, 2005. She was responsible for addressing Brown's hunger strike, and called Mr. Russell requesting that Brown be transferred to the RCTP unit at Elmira. Her testimony would "establish her reasons for the transfer request," and whether Fuller complied with certain institutional directives (Aff. in Support ¶ 2.a). •Dr. Brown was the psychiatrist assigned to claimant at Elmira. He "declared" to Brown, the facility Superintendent and others that claimant had "no mental disorder or illness" (Id. ¶ 2.b). Nonetheless, he "may have suggested to claimant remaining [sic] on a 'high mental health level . . . for routine evaluation,'" which suggestion would be a subject of his testimony (id.). •Mr. Russell is identified as the unit chief of the Elmira Residential Crisis Treatment Program ("RCTP").Russell accepted Fuller's application that claimant be transferred to Elmira, and so can testify to "the reasons that caused him to accept [Fuller's] request" that Brown be admitted to the RCTP (Aff. in Supp. ¶ 2.c). He can also testify to (1) a declaration by Dr. Brown indicating to staff that claimant was not suffering from "any type of Axis I psychopathology," and (2) whether the staff followed various policies regarding the transfer of inmates (id.). •Dr. Sawyer is the executive director of the Central New York Psychiatric Center ("CNYPC"). He was "informed of" claimant's mental health status and hunger strike, "supervis[ed] staff" during the period at issue, and investigated Brown's complaints regarding "his mental health service level and transfer to Auburn Cor. Fac. as a level one (1) inmate" (Id. ¶ 2.d). He can testify to whether certain CNYPC policies were followed in this case (id.).Defendant responded to claimant's motion through an affirmation by Assistant Attorney General Roberto Barbosa. Barbosa states that Fuller and Dr. Brown are no longer in the State's employ, and defendant is unaware of their whereabouts (Aff. in Opp. ¶¶ 6, 7). As to Russell, Barbosa avers that under claimant's submission, Russell can testify as a fact witness only regarding inadmissible hearsay he heard from Fuller and Dr. Brown (Id. ¶ 8). Barbosa further asserts that Sawyer took no part in the matters at issue in the claim, and has no first-hand knowledge thereof. Finally, in regard to both Russell and Sawyer, Barbosa argues that the matters on which Brown wishes to have them testify are properly within the province of an expert, and expert testimony cannot be secured by a subpoena ad testificandum (Id. ¶¶ 8-9).
In prior filings by defendant contained in the case record, the State identifies Russell as the Forensic Unit Chief (see Defendants' Response to Plaintiff's Request for Admissions ¶ 16 in Brown v McGinnis, Exhibit to Claimants' Motion for Summary Judgment [Brown v State of New York, UID No. 2008-044-581, Claim No. 112968; Motion No. M-74855, Schaewe, J. (Ct Cl Sept. 30, 2008)])
Discussion
A pro se litigant is not authorized to issue a subpoena on his own, and thus can only compel a witness's testimony by court order (CPLR § 2302). To obtain such an order, the claimant has the burden to show that the information sought is "material and necessary" to his claim (see Whitfield v State of New York, UID No. 2010-030-519, Claim No. 107985, Motion No. M-77816, Scuccimarra, J. [Ct Cl Mar. 3, 2010]; Campolito v State of New York, UID No. 2004-019-602, Claim No. 107825, Lebous, J. [Ct Cl Dec. 23, 2004]; see also CPLR § 3101[a] [requiring disclosure of all matters "material and necessary" to prosecution or defense of action]).
Defendant bases its opposition to subpoenas for the testimony of Fuller and Dr. Brown on the ground that they are no longer in the State workforce, and the State is unaware of where they are located. The State further argues that, in the event the motion is granted as to those witnesses, claimant should be "solely responsible" for serving any subpoena whose issuance the Court might direct (Aff. in Opp. ¶¶ 6-7).
For his part, claimant contends that, given his pro se status, the State should undertake this responsibility (Reply Aff. ¶ 2.c & d). Under these circumstances, however, it is simply not possible for the Court to authorize subpoenas ad testificandum on Fuller and Dr. Brown. Neither of the parties profess to know where these individuals reside, or even whether they are domiciled outside New York and therefore beyond the reach of the Court's subpoena jurisdiction (see Judiciary Law § 2-b [emphasis added] ["A court of record has power . . . to issue a subpoena requiring the attendance of a person found in the state to testify . . . "]; Matter of Stephen, 239 AD2d 963, 963 [4th Dept 1997] ["a New York court may not direct the service of a New York subpoena outside the State"]). The time for claimant to seek information on these witnesses' whereabouts through discovery has passed. For these reasons, claimant's application is denied as to Fuller and Dr. Brown (see Medina v State of New York, UID No. 2007-044-500, Claim No. 109170, Motion No. M-72754, Schaewe, J. [Ct Cl Jan. 10, 2007] [denying inmate motion to subpoena retired state employee, as he was "no longer in defendant's control"]; Carter v State of New York, UID No. 2005-030-565, Claim No. 109781, Motion No. M-71003, Scuccimarra, J. [Ct Cl Dec. 22, 2005] [denying application for retired state employee whose location was unknown and who was "no longer under the control of the State"]).
Russell is apparently still within the employ of the State. Defendant argues, however, that the testimony Brown seeks from him is either hearsay or expert testimony, which is inadmissible in the first case, and "inappropriate" in the second (Aff. in Opp. ¶ 8). In regard to the first argument, while certain testimony sought by claimant may indeed be hearsay, that is not the only evidence claimant purports to seek from this witness. In particular, he alleges that Russell approved the request that Brown be admitted into the Elmira RCPT, and can explain the reason for this decision, which is at the heart of the present claim that he was wrongly transferred to Elmira. Since - for purposes of this motion - defendant does not contest that Russell played such a role, I find that Brown has made the requisite showing as to why such testimony is material and necessary to his claim.
Since Brown has set forth an adequate basis for securing Russell's testimony as a fact witness, the State's argument that claimant seeks expert testimony from him is not an adequate ground for denying the subpoena. In any event, it is not clear that claimant actually seeks to question Russell as an expert, or that such testimony would be impermissible merely because Russell's appearance was compelled under CPLR section 2302. While New York law forbids the use of a subpoena to compel the testimony of an impartial expert (People ex rel. Kraushaar Bros. & Co. v Thorpe, 296 NY 223 [1947]), it does not prohibit compelling expert testimony from a party (McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20, 29-30 [1964]). Although McDermott addressed a case where the witness was a named defendant, other decisions have expanded the decision's reach to instances where the party at issue is the employee of a defendant (see Maser v County of Onondaga, 90 AD2d 970 [4th Dept 1982]). In any case, whether any of the testimony sought will be in the nature of expert testimony, and whether such testimony should be allowed, is a matter, under these circumstances, to be determined at trial (see Matter of Atkinson, 103 AD2d 960, 960 [3d Dept 1984] [reversing order quashing subpoena as seeking expert testimony; "until the witness appears and the questions are posed, it cannot be determined whether only his opinion as an expert is being sought"]; Whitfield, supra ["The line between a fact witness and an expert witness can often not be determined until trial"]).
While claimant has made sufficient showing of his need for Russell's testimony, the same cannot be said in regard to Sawyer. Nothing in Brown's filings indicates that Sawyer would have any information which would not be cumulative of the testimony he seeks from Russell. The proffer set forth in the current motion is vague, asserting that Sawyer was "informed" of the matters at issue, "supervis[ed]" involved personnel, and failed to respond to Brown's complaints. None of these generalized allegations is sufficient to compel Sawyer's testimony (see Gibson v State of New York, UID No. 2010-041-030, Claim No. 113816, Motion Nos. M-78256, M-78257, Milano, J. [Ct Cl June 7, 2010] [vague statements that individuals have knowledge of defendant's tortious acts insufficient to warrant subpoena for their testimony]; Campolito, supra [rejecting motion for witness testimony as "too vague"]). Indeed, while Brown's claim contains extensive allegations as to the role of various individuals in the events at issue, it makes no reference at all to Dr. Sawyer.
In light of the foregoing, I grant Brown's motion as to Russell, and deny it in all other respects. To avoid the delay and confusion that may result from a pro se inmate serving a subpoena ad testificandum, and the fact that Russell is defendant's employee, the witness shall be made available without resort to subpoena.
Given the imminence of trial, in the event it will be difficult for the State to make Mr. Russell available on the currently scheduled date, it may seek an adjournment thereof on or before April 21, 2012.
April 5, 2012
Albany, New York
David A. Weinstein
Judge of the Court of Claims
Papers Considered
1. Claimant's Notice of Motion for "Subpoena Duces Tecum" in accordance with CPLR § 2302 (b).
2. Defendant's Affirmation in Opposition to Claimant's Motion.
3. Claimant's "Affirmation" in Reply to Defendant's Opposition Affirmation.