United States District Court, W.D. New York
DECISION AND ORDER
H. KENNETH SCHROEDER, Jr., Magistrate Judge.
Plaintiff, Terry Daum, commenced this action pursuant to Title 42, United States Code, Section 1983 alleging that he was subjected to an excessive use of force in violation of his right to be free from cruel and unusual punishment. Dkt. #6. Presently pending is plaintiff's motion to compel disclosure of the New York State Inspector General's report and the contents of the investigation file relating to the incident which is the subject of plaintiff's complaint. Dkt. #15.
Specifically, plaintiff alleges that on November 20, 2011, at 7:15 p.m., while he was housed at the Attica Correctional Facility, he was assaulted by Correction Officers Holtz and Zehler and two other unidentified correction officers. Plaintiff alleges that defendant Zehler threatened him not to report the incident or they could easily kill him. Dkt. #6, ¶20. Following the incident, plaintiff alleges that he was taken to the Erie County Medical Center where he was diagnosed with an "orbital fracture with inferior rectus muscle entrapment." Id. at ¶21. In addition, plaintiff alleges that he later required surgery. Plaintiff further alleges,
Because defendants threatened to kill Mr. Daum, and they had already badly beaten him and he was in severe pain, he told medical staff that he fell.
Mr. Daum feared for his life and believed that officers Zehler, Holtz and the unnamed officers and sergeant would retaliate against Mr. Daum with deadly physical force if he reported the incident while at Attica Correctional Facility based on this assault which caused serious injury.
Id. at ¶¶22-23. Plaintiff was transferred to the Sing Sing Correctional Facility on January 23, 2012. Id. at ¶24. On January 27, 2012, plaintiff submitted a grievance concerning the November 20, 2011 assault. Id. at ¶25. On February 1, 2012, plaintiff alleges that his grievance was denied as untimely and the grievance supervisor recommended that he contact the Inspector General. Id. at ¶26. Thereafter, plaintiff's complaint alleges that his family members contacted the Inspector General's Office. Id. at ¶27.
As noted above, by the instant motion, plaintiff seeks the disclosure of the Inspector General's report and the contents of the investigation file regarding the November 20, 2011 incident which is the subject of plaintiff's complaint. Dkt. #15. In opposition to the instant motion, counsel for the defendants states that a copy of an Inspector General file was provided to him on October 8, 2013. Dkt. #17, ¶11. A complete copy of that file, bearing Bates Nos. 001696-001712, has been provided to the Court, in camera, for its review. As detailed in defendants' response,
As the Court can see, accompanying the IG file was a letter from the IG, which reads, in part:
Several pages contained within the Inspector General's Investigative file have been marked " ATTORNEY EYES ONLY. ." These documents are being forwarded to you for informational purposes only and should not be released to anyone else. An in-camera inspection by a judge is, of course, permissible. Should you need to release this information to someone else, please do not do so without contacting this office first.
Dkt. #17, ¶12 (emphasis and italics in original). Thereafter, counsel for the defendants engaged in discussions with the New York Department of Corrections and Community Supervision ("DOCCS") concerning the release of the IG file. Id. at ¶13. As a result of the discussions, DOCCS agreed that certain portions of the IG file could be released to plaintiff's counsel. Id. at ¶14. In fact, on November 25, 2013, defendants provided plaintiff's counsel with copies of the "raw evidentiary parts of the IG file, which were designated as Bates Nos. 1703-1712." Id. at ¶15. Therefore, seven pages were not disclosed consistent with DOCCS request (001696-001702). Id. at ¶16. As was noted in defendants' response to the instant motion, the documents which were withheld
do not include any statements of witnesses or other evidence collected by the IG investigator. What was withheld includes the investigator's summary of the evidence collected as well as internal IG documentation. Anything which is relevant to plaintiff's claim, or which could lead to relevant admissible evidence, is already in possession of the plaintiff.
Id. at ¶¶17-18. Finally, the Court notes that in December 2013, the parties executed a Confidentiality Agreement regarding discovery of documents. Dkt. #17, pp.43-46.
As a general matter,
[t]he Inspector General's Office serves as an investigative body and prepares reports which are highly confidential by nature. Disclosure of these reports to an inmate would undoubtedly pose a grave threat to the security of [a correctional facility]. Inspector General reports contain inmate names, names of informants, summaries of interviews of correction officers and opinion letters, all of which concern matters of a highly sensitive nature. Should this type of information be ...