Opinion
# 2015-049-022 Claim No. 122960 Motion No. M-85590 Motion No. M-86092
03-27-2015
MIKE HENRIQUEZ v. THE STATE OF NEW YORK
Mike Henriquez, Pro Se Eric T. Schneiderman, New York State Attorney General By: Roberto Barbosa, Assistant Attorney General
Synopsis
Case information
| UID: | 2015-049-022 |
| Claimant(s): | MIKE HENRIQUEZ |
| Claimant short name: | HENRIQUEZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122960 |
| Motion number(s): | M-85590, M-86092 |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Mike Henriquez, Pro Se |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Roberto Barbosa, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 27, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Mike Henriquez, an inmate proceeding pro se, commenced this action by claim filed on July 12, 2013. In the claim, he makes numerous complaints about the conditions of his confinement at Southport Correctional Facility ("Southport"), where Henriquez is now confined. Among other things, he alleges that from April 16, 2013 to the time of filing prison officials (1) limited him to two five-minute showers per week; (2) required that he remain in upper and lower body restraints during visits, and upper body restraints during recreation; (3) restricted him to one non-legal visit per week; (4) arbitrarily opened and inspected his mail; (5) forced him to carry heavy bags when in full restraints; (6) refused to provide him typing services at the prison law library; (7) did not allow him to purchase certain items; and (8) barred him from participating in educational programs (Claim ¶ 2). He asserts numerous causes of action on the basis of these allegations, including "deprivation," "cruel and unusual punishment," "illegal and unconstitutional retaliation," and fraud.
Two motions are now before me regarding the claim. First, Henriquez moves to compel the State to respond to certain of his discovery requests. Second, the State moves to strike a "supplemental pleading" filed by claimant. I address these in turn below.
I. Motion to Compel
Between October 2013 and May 2014, Henriquez served defendant with two omnibus sets of discovery requests, a demand for a bill of particulars, and a document labeled "Out of Court Settlement Proposal." By motion filed August 28, 2014 (Motion No. M-85590), claimant seeks to compel a full response to each of these demands. He contends that defendant failed to adequately respond to his discovery demands, did not serve a bill of particulars, and "unreasonably refus[ed] to provide [him] with a reply" to the settlement proposal (Aff. in Supp. ¶ 7).
In the first set of discovery demands served October 9, 2013, claimant sought disclosure of the expert and lay witnesses, and documentary exhibits, that the State intends to introduce at the trial of this matter. In its response, defendant averred that it had not yet determined the evidence it would seek to present at trial (see Aff. in Opp. Ex. B).
New York law generally provides for the liberal discovery of witnesses (see Sidbury v Great Bear Spring Co., 131 AD2d 378, 379 [1st Dept 1987]; see also CPLR 3101[a] [providing for discovery of expert witnesses]). Nonetheless: "nothing in CPLR article 31 requires a party to generate a witness list per se. As with any other disclosure obligation, a party's compliance or noncompliance must be gauged with reference to the purposes of disclosure, which are to sharpen factual issues, advance the truth-finding process, accelerate the disposition of suits, and prevent gamesmanship and unfair surprise at trial" (Hunter v Tryzbinski, 278 AD2d 844, 844-845 [4th Dept 2000]).
In this case, requiring disclosure at this stage of every witness the State might call, and all evidence it intends to produce, would be burdensome and unlikely to advance these goals. As noted, the claim seeks damages for an extraordinarily broad array of alleged policies and practices by the Department of Corrections and Community Supervision ("DOCCS"), encompassing numerous program areas. It is unclear at present, moreover, whether the matters for trial will be narrowed by dispositive motion practice, or additional discovery.
In light of the above, the motion to compel a further response to this request is denied, without prejudice to the claimant seeking disclosure of the identity of lay and expert witnesses, and documentary exhibits, upon the scheduling of a trial in this matter. At such time, claimant may renew this request, to ensure that he is provided adequate notice without prematurely and unnecessarily burdening defendant.
The second set of discovery demands was served on May 13, 2014 (Aff. in Opp. ¶ 6, Ex. C). It asked that the State turn over, among other things, the complete files for 13 inmate grievances Henriquez had filed, the codes for various grievances, "samples of dust" from certain facility locations, voluminous documentation on the Southport ventilation system, every disciplinary allegation and charge ever made against various correctional personnel, and the total number of grievances on various topics submitted at Southport and at numerous other correctional facilities not at issue in this case. The State objected on numerous grounds set forth below, including that the demands were unduly burdensome or sought irrelevant information. In its initial response, the State also indicated that it had identified 90 pages of responsive documents, which it would make available for copying costs of $0.25 per page. In response to some of the requests, defendant stated that it was continuing to search for responsive documents, and in its filing in opposition to the present motion, defendant indicates that it has located 239 more pages of responsive materials, which it will provide upon claimant's payment of copying costs.
Further, in response to one request (number 12, seeking documents governing air quality and ventilation), defendant states that it has located one internal document that "may be responsive," and proposes to submit it with proposed redactions for in camera review (Aff. in Opp. ¶ 23). In regard to a second request (number 33, regarding a misbehavior report against claimant), the State indicates that it is still in the process of collecting responsive information.
For reasons set forth below, I find defendant's objections to be meritorious.
Demands 1a through 1m seek specific grievance files. Defendant argues that 1a and 1b are irrelevant as they concern (a) a grievance from 2009 that pre-dates the time period at issue in the litigation, and (b) missing property, which is not at issue in this litigation. In response to demands 1c through 1l, defendant states that it has now located 146 pages of responsive materials, which it will provide at $0.25 per page, or a total of $36.50 (Aff. in Opp. ¶ 13). I find defendant's objections to the first two demands to be valid, since they bear no obvious relevance to this claim. As to the remainder, defendant's present response has rendered the issue moot (see Logan v State of New York, UID No. 2014-038-555 [Ct Cl, DeBow, J., Dec. 12, 2014] [documents provided in response to motion to compel rendered motion moot]; Bell v State of New York, UID No. 2014-041-062 [Ct Cl, Milano, J., Oct. 28, 2014] [same]).
In regard to demands 2 through 6, 13, 20a, 20d through 20g, 28, 30, 31, 34, 37 and 38, defendant objects on the ground that claimant has "failed to show how the requested information is material and necessary to the prosecution of this claim." These demands seek "inmate grievance codes," along with all grievances filed at Southport for various codes between January 1999 and April 2014 (nos. 2-6); a list of all mailroom personnel at Southport between January 1999 and April 2014 (no. 13); documents that "classified the usage of Southport CF," and "governed every aspect of inmate" behavior, discipline, disciplinary proceedings and special housing units" (nos. 20a and 20d-g); all items confiscated by a Special Investigator Lovelace (who is not mentioned in the claim) on 8/21/2013 (no. 38); all documents "which pertain in the most remote manners" to claimant's mail, including his "mailing habits" (no. 30); the "12 x 16 manila envelopes" issued to SHU inmates in April 2014 (no. 31); the manila envelope received by the Attorney General's Claims Bureau on 11/18/11, containing certain claims (no. 34); Assistant Attorney General Roberto Barbosa's oath of office (no. 35); and the number of certain types of grievances filed at a list of correctional facilities over the past five years (nos. 37 and 38). Nothing in the record indicates that these documents are themselves relevant to the matters raised in the claim, or are "reasonably calculated to lead to evidence relevant" to those matters (see Jordan v Blue Circle Atl., 296 AD2d 752, 753 [3d Dept 2002]). Defendant has therefore raised valid objections, and the motion to compel responses to these demands is denied.
Defendant makes several objections to a number of the requests discussed in this opinion. In such cases, the objections cited here are those which provide the most appropriate basis for denying claimant's motion. For example, demands 20a and 20d through 20g are manifestly overbroad and burdensome. But since they would clearly encompass large amounts of irrelevant material, they are properly rejected on relevance grounds as well.
Defendant also challenges demands number 14 through 19 on relevance grounds, and argues that they are barred by several exemptions to the Freedom of Information Law (see Public Officers Law ["POL"] § 87[2][b], [e], [f], [g]) and POL § 96, which protects against disclosure of certain private, personal information. These demands all seek job-related "disciplinary allegations"; "disciplinary charges" and "dispositions of any disciplinary hearings" regarding four DOCCS employees. Here too, defendant's argument that such information is not related to the matters at issue in this action - as well as being grossly overbroad - is meritorious. As a general rule, evidence of an individual's prior misconduct - even if such exists and is in the State's possession - cannot be used to prove that such individual engaged in misconduct in the specific claim before the Court (see Matter of Brandon, 55 NY2d 206, 211 [1982]). Therefore, claimant cannot embark on a fishing expedition for every instance of officers' prior misconduct - much less mere complaints or allegations against such officers. Moreover, none of these officers is specifically mentioned in the claim, their relevance to this action is not clear, and claimant makes no effort to restrict his demand to matters related to his causes of action (see Siegel v New York Hospital at Medical Center of Queens, 2008 WL 1859321 [U] [Sup Ct, Nassau County 2008] [granting nursing center's application for protective order against disclosure of incident reports for other falls over the prior three years; no evidence other incidents were "substantially similar" to that at issue]). For all these reasons, claimant's motion to compel is denied as to these requests.
In regard to demands number 7, 23 through 27, and 29, defendant asserts that compliance would be "unduly burdensome." Number 7 seeks a list of all grievances claimant has filed against DOCCS between May 1996 and April 2014, without regard to subject or facility. This is wildly beyond the scope of the claim, and would on its face impose significant costs and burdens on defendant. Numbers 23 through 27 seek every document seized from claimant in April 2014 (no. 26), along with "all records" concerning mental health complaints at Southport (no. 23); all records "pertaining to claimant" (no. 24); "all contraband seized from claimant" (no. 25); and all documentary evidence concerning "all contraband seized" from claimant in April 2014. Since claimant has declined to limit himself to a particular, delineated incident, his requests are therefore costly and burdensome to answer. Defendant's objections are upheld, and claimant's motion is denied as to these requested documents.
As to demands 8 and 9, seeking dust samples from particular Southport vents from 2013, defendant avers that no such materials exist, and claimant presents no evidence to the contrary. The motion to compel is therefore denied as to these demands.
Demand number 36 asks for the Attorney General's response to his settlement demand. That is simply a roundabout way of compelling the State to address his settlement proposal, which application I deny for reasons set forth below.
As to the remainder of the demands, defendant indicates that it has found responsive documents which it will produce at $0.25 per page (nos. 10, 11, 20b, 20c, 21, 22, 32), found documents which it will provide with proposed redactions for in camera review (no. 12), or is still searching for responsive materials (no. 33). The motion is, thus, moot as to these demands, except as to the need for in camera review and identification of additional documents.
I note that in some instances responsive documents were not offered within the time frames of the CPLR, and were only produced in response to this motion. Given the manifest overbreadth of claimant's demands, however, and defendant's diligence in its response to this motion in parsing those demands one by one so it could locate potentially relevant materials that fall within their scope, no sanction or other adverse consequence for defendant is warranted for such delay.
Similarly, claimant's request for a bill of particulars, served on May 30, 2014 (id. ¶ 6, Ex. E), was rendered moot on October 2, 2014 when defendant provided its verified bill.
Finally, Henriquez seeks a response to his settlement proposal, arguing in the present motion, that "it is inconsistent with procedural & substantive due process & equal rights for defendant to presently refuse 'to say yes or No' to claimant[']s extremely fair settlement offer." Defendant, however, is under no compulsion to respond to a settlement proposal at all (see Young v State of New York, UID No. 2004-019-558 [Ct Cl, Lebous, J., July 7, 2004]). There is no legal basis, therefore, on which this Court may require defendant to address claimant's settlement offer.
In sum, claimant's motion no. M-85590 to compel is denied in its entirety, except that within 30 days of the filing of this Decision and Order the State is directed to (1) provide the Court with all documents responsive to demand number 12 with all redactions marked, and accompanied by such explanation as defendant may choose to provide; and (2) identify the number of pages located in response to demand number 33, and which will be made available upon claimant's payment of copying costs.
II. Motion to Strike Supplemental Pleading
On November 10, 2014, claimant served a document labeled "Supplemental Pleading," that lists certain instances of alleged "continuing policies[,] acts and omissions of defendant." For example, Henriquez asserts that various policies adhered to by defendant continue to violate his rights by denying him the ability to possess certain clothing and items, refusing him adequate mental health treatment, and denying him typing services for legal proceedings. The State moves to strike this pleading.
Under CPLR 3025, a party may only amend his pleading without leave of the Court "within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it." In this case, Henriquez filed his "supplemental pleading" long after the expiration of these deadlines. This pleading cannot, therefore, be amended without leave of the Court (see Sutton Apts. Corp. v Bradhurst, 100 Dev. LLC, 107 AD3d 646, 647 [1st Dept 2013] [granting motion to strike complaint served "outside the time period for amendments without leave under CPLR 3025 (a)"]).
In a reply submission, claimant states that his "supplemental" filing does not seek to amend his pleading, but rather is an effort to "inform[] all parties that the complained of conditions of confinement had ceased - but then started anew again via another placement in SHU" (Opp. and Reply ¶ 4). Moreover, he contends that the allegations therein are "more or less identical" to those in the original claim, and he should not be required to file a new claim in which to assert them (id.). In the event that the motion is denied, Henriquez asserts that he will seek leave to amend via motion (id. ¶ 6).
But Henriquez' submission is either a pleading, with all the attendant legal implications, or it is not. If the former is to be the case, then claimant must (at this stage of the proceeding) proceed by motion, which he has failed to do. If the latter, then its filing has no legal import in these proceedings, and the motion to strike must be granted in any case.
Finally, I note that the claim at issue seeks monetary damages for asserted past misconduct by defendant. The allegations in the "supplemental" pleading that some of these acts (and others not recounted in his initial pleading) are "ongoing" has no relevance to this question. This Court has no power to enjoin ongoing misconduct (see Ozanam Hall of Queens Nursing Home v State of New York, 241 AD2d 670, 671 [3d Dept 1997]), and thus allegations in the new pleading that certain policies remain in force at the present time has no bearing on this action.
In light of the foregoing, motion no. M-86092 to strike claimant's "supplemental pleading" is granted.
March 27, 2015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion to Compel, Affidavit and annexed exhibit.
2. Defendant's Affirmation in Opposition to Claimant's Motion to Compel Discovery and annexed exhibits.
3. Defendant's Notice of Motion, Affirmation in Support of Defendant's Motion and annexed exhibits.
4. Claimant's submission to the Court dated December 11, 2014.
5. Claimant's Opposition and Reply Pleadings.