Opinion
# 2018-015-102 Claim No. 129411 Motion No. M-93015
01-07-2019
HECTOR RODRIGUEZ v. STATE OF NEW YORK
Hector Rodriguez, Pro Se Honorable Letitia James, Attorney General By: Christina Calabrese, Esq., Assistant Attorney General
Synopsis
Pro se inmate's motion to compel discovery and impose sanctions was denied. Although defendant failed to meet its burden of establishing that certain prison Directives were privileged, claimant failed to establish the relevance of the requested documents. Defendant adequately responded to the remaining requests for documents.
Case information
| UID: | 2018-015-102 |
| Claimant(s): | HECTOR RODRIGUEZ |
| Claimant short name: | RODRIGUEZ |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129411 |
| Motion number(s): | M-93015 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Hector Rodriguez, Pro Se |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Christina Calabrese, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 7, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, moves to compel discovery and impose sanctions for defendant's alleged failure to adequately respond to his requests for disclosure of certain records.
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), alleges he was assaulted by correction officers at Great Meadow Correctional Facility on July 21, 2016. He alleges the officers involved used force which was excessive and unjustified under the circumstances, that he was choked and beaten with batons after he was subdued, that a total of 18 sutures were required to close wounds on his head and chin, and that he sustained multiple abrasions on his legs, arms, back, shoulder and torso.
On March 31, 2017, defendant received claimant's first request for discovery of the following documents relating to this incident:
"1) Unusual Incident Report (U.I.)
2) Use of Force Report
3) Photographs of injuries
4) Office of [Special] Investigation Report & Resolution Findings
5) My interview with (O.S.I.)
6) Report by superintendent" (defendant's Exhibit A).
With slight variation in the wording, these same items were again requested on April 9, 2017 (defendant's Exhibit B). Having received no response to these demands, by letter dated May 16, 2017, claimant requested a response to his prior demands and, for the first time, requested Directives 4059, 4065 and 4004; the "performance record" and "civil service file" of the correction officer who allegedly assaulted him; records regarding the correction officer's use of force between 2005 and 2017; and the DOCCS 2017 Health Services Policy (defendant's Exhibit C). Defendant responded to claimant's discovery demands on June 22, 2017, providing the documents requested in item numbers 1-3 above and objecting to claimant's requests for Directives 4004, 4059 and 4065, the correction officer's personnel records, including records regarding his use of force from 2005 through 2017; and the 2017 Health Services Policy. Defendant also indicated that it was unaware of the existence of written statements by the Superintendent regarding the subject incident.
CPLR 3101 (a) provides for the "full disclosure of all matter material and necessary in the prosecution or defense of an action." The Court of Appeals has interpreted these words liberally to require the disclosure "of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]; see also Wiggins v Kopko, 105 AD3d 1132 [3d Dept 2013]). Nevertheless, not all requests for discovery which may in some unspecified way yield relevant information are proper. " 'Under our discovery statutes and case law, competing interests must always be balanced; the need for discovery must be weighed against any special burden to be borne by the opposing party' " (Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998], quoting O'Neill v Oakgrove Constr., 71 NY2d 521, 529 [1988], rearg denied 72 NY2d 910 [1988]; see also Andon v 302-304 Mott St. Assoc., 94 NY2d 740,747 [2000]). It is therefore incumbent upon the party seeking disclosure to "demonstrate how the requested materials are relevant to the issues in the matter" (Davis v Cornerstone Tel. Co., LLC, 78 AD3d 1263, 1264 [3d Dept 2010] [quotation marks and citation omitted]; Vyas v Campbell, 4 AD3d 417, 418 [2d Dept 2004]).
First, the conclusory allegation contained in defense counsel's affirmation that DOCCS' Directives (4004, 4059 and 4065) and its Health Services Policy for 2017 may not be provided to inmates is without probative value (see S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]; Beckmann v 71 Speeder Rd., LLC, 28 AD3d 1053 [3d Dept 2006]; Fallsburg Fishing & Boating Club, Inc. v Spiegel, 9 AD3d 765 [3d Dept 2004]; Hugelmaier v Town of Sweden, 101 AD2d 995 [4th Dept 1984]). While defense Counsel refers to Directive 0001, which assigns various codes limiting the distribution of certain directives, she failed to submit Directive 0001, the Directives sought by the claimant in his discovery requests or an affidavit from someone with personal knowledge of the facts to support the assertion that the Directives are immune from discovery. Moreover, defendant failed to indicate the nature of the privilege it claims shields the Directives and Health Services Policy from disclosure or the reasons disclosure to inmates is precluded. While the public interest privilege may immunize the disclosure of confidential communications between public officers in the performance of their duties (Cirale v 80 Pine St. Corp., 35 NY2d 113, 117 [1974] [quotation omitted]; Lowrance v State of New York, 185 AD2d 268 [2d Dept 1992]), the privilege is not absolute and whether it attaches in a particular case is a fact-specific determination requiring the Court to balance the interests of the party seeking disclosure against the governmental-public interest at stake should the sought-after materials lose their shield of confidentiality (Matter of World Trade Ctr. Bombing Litig., 93 NY2d 1, 8-10 [1999]). Entitlement to the privilege requires that the defendant demonstrate "the specific public interest that would be jeopardized" by the disclosure (93 NY2d at 8, quoting Cirale v 80 Pine St. Corp., 35 NY2d at 119; see also Parker v State of New York, 269 AD2d 255 [1st Dept 2000]). The defendant here has not identified the interest at stake should the requested materials lose their cloak of confidentiality, and did not submit the relevant records to the Court for its in camera review. The defendant therefore failed to meet its burden of demonstrating that the materials it seeks to withhold are shielded from discovery (Ren Zheng Zheng v Bermeo, 114 AD3d 743 [2d Dept 2014]).
Nevertheless, claimant failed to demonstrate that the Directives and Health Services Policy he requests are relevant to the issues raised in this claim (Davis v Cornerstone Telephone Co., supra; Vyas v Campbell, 4 AD3d at 418). The only cause of action asserted in the claim is one alleging the use of excessive force. As a result, neither the Directives governing the provision of medical care (Directives 4065, 4059), DOCCS' Health Services Policy nor the Directives prescribing the use of unusual incident reports (Directive 4004) appear relevant to the instant claim. Accordingly, claimant's request for an Order compelling the production of Directives 4059, 4065 and 4004, as well as DOCCS' 2017 Health Services Policy, is denied.
Turning to claimant's request for the personnel records of the correction officer he alleges assaulted him, which include a request for records of incidents involving his use of force from 2005 through 2017, defendant objected to the production of these records on the ground the demand is over broad and includes a request for records which are shielded from disclosure pursuant to Civil Rights Law § 50-a. Civil Rights Law § 50-a (1) exempts from disclosure the personnel records of correction officers without either the express written consent of such officer or a court order. The law is settled that absent a legitimate need for the officer's personnel records, disclosure is prohibited. "Thus, the initial burden is on the party seeking the subject records to demonstrate 'in good faith, "some factual predicate" warranting the intrusion into the personnel records' " (Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834 [3d Dept 2001], lv denied 96 NY2d 710 [2001], quoting Taran v State of New York, 140 AD2d 429, 432 [2d Dept 1988] [other citation omitted]; see also Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Correctional Servs., 73 NY2d 26 [1988]; People v Gissendanner, 48 NY2d 543, 549-550 [1979]; Blanco v County of Suffolk, 51 AD3d 700 [2d Dept 2008]; Telesford v Patterson, 27 AD3d 328 [1st Dept 2006]; Petroski v Petroski, 6 AD3d 1194 [4th Dept 2004]). Only after such a threshold showing has been made is an in camera review of the records warranted to determine those parts of the records, if any, which are relevant and material to the claim (McFarlane v County of Suffolk, 79 AD3d 706 [2d Dept 2010]; Blanco v County of Suffolk, 51 AD3d at 702; Telesford v Patterson, 27 AD3d at 330; Petroski v Petroski, 6 AD3d at 1195; Ohnmacht v State of New York, 23 Misc 3d 1134 [A] [2009]). No such showing has been made here.
Civil Rights Law § 50-a states, in relevant part: "All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency . . . and such personnel records under the control of . . . the department of corrections and community supervision for individuals defined as peace officers pursuant to subdivisions twenty-three and twenty-three-a of section 2.10 of the criminal procedure law . . . shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, firefighter, firefighter/paramedic, correction officer or peace officer within the department of corrections and community supervision . . . except as may be mandated by lawful court order." Criminal Procedure Law § 2.10 [25] defines peace officers to include correction officers of any State correctional facility.
Personnel records may be relevant and material to claims alleging negligent hiring, retention or supervision and such causes of action may be alleged as alternative theories of liability (see e.g. Schonbrun v DeLuke, 160 AD3d 1100 [3d Dept 2018]; Pickering v State of New York, 30 AD3d 393 [2d Dept 2006]). Here, however, no such cause of action was alleged. Thus, the requested personnel records and records of his assailant's prior uses of force are irrelevant and unnecessary to the prosecution of the claim (Cheng Feng Fong v New York City Tr. Auth., 83 AD3d 642 [2d Dept 2011]; Jordan v Blue Circle Atl., 296 AD2d 752 [3d Dept 2002]; Kourtalis v City of New York, 191 AD2d 480, 481 [2d Dept 1993]). Claimant's motion is therefore denied to the extent it seeks to compel a response to his demand for the disclosure of the personnel file and records relating to the prior uses of force of the correction officer involved.
Where an employee is acting within the scope of his or her employment when the conduct giving rise to the claim occurred, a cause of action alleging negligent hiring, investigation, training or supervision is subject to dismissal as a matter of law (Medina v City of New York, 102 AD3d 101, 108 [1st Dept 2012]; Leftenant v City of New York, 70 AD3d 596, 597 [1st Dept 2010]; Passucci v Home Depot, Inc., 67 AD3d 1470, 1471-1472 [4th Dept 2009], rearg denied 70 AD3d 1520 [2010], lv denied 72 AD3d 1658 [2010]; Segal v St. John's Univ., 69 AD3d 702 [2d Dept 2010]); Sato v Correa, 272 AD2d 389 [2d Dept 2000]). --------
Inasmuch as defendant has appropriately responded to claimant's remaining demands, his motion to compel disclosure and impose sanctions must be denied.
Accordingly, claimant's motion is denied.
January 7, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of motion, dated September 27, 2018;
2. Affidavit in support, sworn to September 27, 2018, with attachments;
3. Affirmation in Opposition, dated November 5, 2018, with Exhibits A-E;
4. Claim filed March 9, 2017.