Opinion
# 2014-018-542 Claim No. 121105 Motion No. M-85512
10-27-2014
MALIK AZ'RAEL MOSBY v. STATE OF NEW YORK
MALIK AZ'RAEL MOSBY Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire Senior Attorney, of Counsel
Synopsis
Claimant's motion to compel the production of certain documents pursuant to CPLR 3124 is GRANTED in part and DENIED in part as more fully set forth in the Decision and Order.
Case information
| UID: | 2014-018-542 |
| Claimant(s): | MALIK AZ'RAEL MOSBY |
| Claimant short name: | MOSBY |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121105 |
| Motion number(s): | M-85512 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | MALIK AZ'RAEL MOSBY Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire Senior Attorney, of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | October 27, 2014 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, pro se, brings a motion to compel the production of certain documents pursuant to CPLR 3124. Defendant opposes the motion.
This claim arises from an assault within the confines of Gouverneur Correctional Facility on April 16, 2011. Claimant, an inmate, alleges that because of a medical condition, he requested a single-cell placement. He alleges that his medical condition, a back injury, made him vulnerable to being assaulted, and that he was previously assaulted when he was double-bunked at Mid-State Correctional Facility. At Gouverneur, he was denied placement in a single cell and was instead placed in a double-bunk cell with another inmate, Jerome Jones, D.I.N. No. 00A4868, who he alleges was "psychotic" with a history of prior assaults. Claimant alleges that as a result of the State's negligence, Jones assaulted him and he suffered a 2 cm. laceration to his left optical socket, a head injury, and back injuries. Claimant alleges that the State failed in its duty to protect him from the foreseeable risk of attack, and as a result, it is liable for the injuries he suffered from the assault by his cell mate.
Claim (Complaint) ¶ 5.
Claimant attaches to his motion a "Discovery Demand" dated June 23, 2014, filed with the Clerk of the Court on August 7, 2014. Defendant submitted a response to Claimant's discovery demand dated July 22, 2014. None of the requested information was provided to Claimant, as Defendant asserts various privileges protecting the information from being released, and also indicates that the inmate who perpetrated the assault and is the subject of the information sought, must be served with a copy of the demand and motion. Claimant seeks an Order compelling Defendant to provide the information demanded because he needs the information to properly pursue this action.
CPLR 3101 directs that "[t]here shall be full disclosure of all matter material and necessary" to the prosecution or defense of an action (CPLR 3101 [a]). There are only three classes of protected materials: privileged matter which is absolutely immune from discovery, attorney's work product, also immune from disclosure, and materials prepared for trial which may be discoverable upon a showing of "substantial need and undue hardship." (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 376-377 [1991]). The burden is on the party objecting to disclosure to establish its entitlement to protection (Id., at 377).
Subparagraph (1) and (4) of the Discovery Demand:
Claimant seeks the sentencing minutes and memoranda related to sentencing of the Inmate Jerome Jones, the alleged assailant. As part of the claim, Claimant alleges that Inmate Jones was improperly placed in a double cell with Claimant. The Department of Corrections and Community Supervision (DOCCS) Rules and Regulations section 1701.5, sets forth the factors for consideration in selecting inmates for double-cell housing (7 NYCRR § 1701.5). Section 1701.5 (c) (4) includes among the factors considered when evaluating an inmate for double-cell housing, an inmate's history and behavior, including whether the inmate has a history of predatory assaults, or has a criminal history of extreme violence (7 NYCRR § 1701.5 [4] [ii], [iii]). Also in determining which inmates are compatible to be housed together, one of the factors for consideration is the inmate's criminal history/length of sentence (7 NYCRR § 1701.5 [d] [6]). Although Inmate Jones' criminal history might be relevant to the allegations in this claim, the relevance of his sentencing minutes and memoranda is not clear. Moreover, section 390.50 of the Criminal Procedure Law (CPL) entitled, "Confidentiality of pre-sentence reports and memoranda" provides in part:
"[a]ny pre-sentence report or memorandum submitted to the court pursuant to this article and any medical, psychiatric or social agency report or other information gathered for the court by a probation department, or submitted directly to the court, in connection with the question of sentence is confidential and may not be made available to any person or public or private agency except where specifically required or permitted by statute or upon specific authorization of the court . . ." (CPL § 390.50 [1]).
Pursuant to subsection (3) of CPL section 390.50, the probation department must make a copy of the pre-sentence report, and any medical, psychiatric, or social agency report submitted to it in connection with its pre-sentence investigation or its supervision of a Defendant and provide it to the State agency with whom the criminal defendant is committed. That section further provides that "[i]n any such case, the court or agency receiving such material must retain it under the same conditions of confidentiality as apply to the probation department that made it available." (CPL § 390.50 [3]).
The pre-sentence report and any memoranda related to the pre-sentencing investigation are absolutely privileged from disclosure (CPL § 390.50 [3]; Holmes v State of New York, 140 AD2d 854 [3d Dept 1988]). If Claimant believes he needs this information, he must apply to the sentencing court.
CPL § 390.50 does not address the confidentiality of the sentencing minutes, nor do any of the other statutory sections related to the sentencing process (see CPL §§ 380-430). The need for confidentiality relating to the pre-sentencing report and memoranda, which may involve review of the inmate's mental health and medical records as well as other highly personal information, does not logically extend to the transcript of the open court proceeding where a inmate is actually sentenced. Several cases were found where the sentencing minutes were used in some portion of a civil proceeding (see for example Hughes v Pacienza, 33 Misc 3d 1208 [A], 2011 NY Slip Op 51160[U] [Sup Ct, Kings County 2011] [used as an exhibit on a motion for summary judgment]; Villacorta v Saks, Inc., 32 Misc 3d 1203 [A] [Sup Ct, NY County 2011][used as an exhibit on a motion to dismiss]). The sentencing minutes are not absolutely privileged from disclosure. Defendant should provide the sentencing minutes, if in DOCCS possession, to the Court for an in camera review to determine if the minutes have any relevance to this case.
Subparagraph (2), (5), (6) and (11) of Discovery Demand
Claimant seeks the mental health records of Inmate Jones and the names of any physician or mental health providers who treated him. Claimant also seeks disclosure of any disciplinary actions (infractions, tickets) regarding Inmate Jones.
Medical records are privileged and confidential, and mental health records are also protected from disclosure (see CPLR 4504, Mental Hygiene Law § 33.13, and Public Officers Law § 96; Wilson v State of New York, 36 AD2d 559 [3d Dept 1971]). Privileged material is not disclosable unless the privilege is waived or a compelling interest is shown (CPLR 3101 (b); Exelbert v State of New York, 140 AD2d 665 [2d Dept 1988]). Mental health records may not be disclosed except under certain circumstances, which as relevant here include, by the consent of the patient, or by Order of the Court upon finding that the interests of justice significantly outweigh the need for confidentiality (Mental Hygiene Law section 33.13 (c) (1) and (7); Exelbert, 140 AD2d at 665).
Claimant has not provided authorization from Inmate Jones waiving the privilege and permitting the release of his medical or mental health information. The question becomes whether, here, the interests of justice outweigh his right to keep his records confidential and warrant the Court ordering the release of the records.
Given the nature of this claim, the criteria and information considered in placing Claimant with Inmate Jones are relevant considerations. The Code, Rules and Regulations for DOCCS provides that in the selection of inmates for double-cell housing, part of the screening includes mental health status (7 NYCRR § 1701.5 [c] [3]). The regulation provides that inmates classified as Level 1 by the Office of Mental Health (OMH) staff are precluded from double-cell assignments, and inmates classified as Level 2 or 3 by OMH staff must be closely scrutinized prior to double-cell placement (7 NYCRR § 1701.5 [c] [3] [i] and [ii]). If classified as level 2 or 3, the inmate will still be precluded from a double-cell placement if the inmate has an extremely poor disciplinary adjustment, OMH staff recommends a single-cell assignment, or the inmate has any other documented behavior that leads the deputy superintendent of security or designee to determine that the inmate would not be appropriate for double-cell housing (7 NYCRR § 1701.5 [c] [3] [ii] [a]-[c]).
Based upon the allegations in this claim and the described regulations, it seems warranted to direct Defendant to produce the OMH classification status of Inmate Jones, if available, at the time he was assigned to share a cell with Claimant and within a month before his assault upon Claimant for in camera review. This is a very narrowly tailored intrusion upon Inmate Jones' right of confidentiality.
At trial, Claimant will bear the burden at trial to establish that the State had actual or constructive notice of Inmate Jones' risk to assault, or had actual or constructive notice of Claimant's risk of being assaulted, or knew or should have known of the risk for an assault and failed to take reasonable measures to prevent it (see Sanchez v State of New York, 99 NY2d 247 [2002]). In order to establish what was reasonably foreseeable, Inmate Jones' prior disciplinary record and the circumstances surrounding any misconduct are material and relevant to the action and necessary evidence to establish liability. Thus, Inmate Jones' disciplinary history, reports of prior assaults or violent behavior are discoverable (Brier v State of New York, 95 AD2d 788 [2d Dept 1983]; Wilson v State of New York, 36 AD2d 559; Cardew v State of New York, UID No. 2008-009-007 [Ct Cl, Midey, J., Jan. 28, 2008]; Montalvo v State of New York, UID No. 2007-044-585 [Ct Cl, Schaewe, J., Oct. 30, 2007]).
Defendant is also directed to submit, in camera, Inmate Jones' prior criminal history, and his disciplinary history and supportive documentation for the three years prior to the assault on Claimant.
The balance of Claimant's demand in subparagraph (5) seeking the name of Inmate Jones' parole officer, Jones' address after release from prison, and record of recidivism, do not appear to be relevant to the allegations in this claim.
Subparagraph 8 of Discovery Demand
Claimant also seeks disclosure of any memoranda or other documents relating to the formulation of Directive 4003, section 1701.5 [c] [4] [iii] or other directive used to determine which inmates are suitable for double-cell housing. Defendant objects to this demand arguing that it is over broad and vague and not relevant to the issues raised in this claim. Claimant has, however, raised the issue of the State's improper placement of Inmate Jones in a cell with him. This information may be relevant to Claimant's claim, and no privilege or other protection from disclosure has been asserted. Defendant is directed to provide this information to the Court, in camera, to determine if there is any relevant information.
Subparagraph 10 of Discovery Demand
Defendant should produce any photographs relating to Inmate Jones' assault upon Claimant on April 16, 2011, to the Court, in camera.
Claimant's demands in subparagraphs (7), (9), and (12) are overly broad and not relevant to the issues raised by his claim. The Court will not direct Defendant to comply with these demands. If Claimant needs any of this information, he should more narrowly tailor his request to the time frame and documents relevant to his claim. It is unclear what Claimant seeks in paragraph (13) of his demand.
Accordingly, based upon the foregoing Claimant's motion is GRANTED in part and DENIED in part as set forth herein.
October 27, 2014
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
1) Notice of Motion.
2) Affidavit of Malik Az'Rael Mosby, sworn to August 4, 2014, in support, with exhibits attached thereto.
3) Affirmation of Thomas Trace, Esquire, Senior Attorney, in opposition.