Burks v. Stickney et al

Filing 96

ORDER: The court agrees with the assertion of the DOCCS and the defendants that having refused to disclose his knowledge concerning investigations at the facility, plaintiff should not now be provided with information concerning those investigatio ns. Accordingly, having disclosed to plaintiff's counsel information concerning the number of investigations open during the relevant time period and concerning the subject matters identified, and in light of plaintiff's refusal to testify as to his knowledge concerning those investigations, I deem the DOCCS and the defendants to be in full compliance with my November 22, 2017 order (Dkt. No. 90 ), and will respectfully request that the Clerk of the Court return the materials submitt ed for in camera review to Joshua Pepper, Esq., Associate Counsel, NYS DOCCS. Attorney Pepper is directed to maintain the documents submitted for in camera inspection until the final disposition of this case. Signed by Magistrate Judge David E. Peebles on 1/9/18. (In camera submissions returned as directed)(alh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK

MATTIEU BURKS,
Plaintiff,

Civil Action No.
9:16-CV-0759 (FJS/DEP)

v.
CHAD STICKNEY, et al.,
Defendants.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF:
STOLL, GLICKMAN & BELLINA LLP
475 Atlantic Avenue, Third Floor
Brooklyn, New York 11217

LEO GLICKMAN, ESQ.

FOR DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224

DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE

DENISE P. BUCKLEY, ESQ.
ADRIENNE J. KERWIN, ESQ.
Assistant Attorneys General

ORDER
On November 22, 2017, I issued an order in this civil rights action,
brought by plaintiff Mattieu Burks pursuant to 42 U.S.C. § 1983, directing
the New York State Department of Corrections and Community
Supervision ("DOCCS") to produce information related to investigations
conducted involving prisoner abuse or the issue of smuggling/secreting of
contraband at the Clinton Correctional Facility ("Clinton") that were open
and ongoing at any time between January 1, 2015 and August 31, 2015.
Dkt. No. 90. The order specified the steps to be taken in retrieving and
producing the information ordered. Specifically, the order required the
DOCCS to undertake the following steps in meeting its obligations:
(a) Identify all DOCCS Office of Special
Investigations ("OSI") investigations covering the subject
matters set forth above and opened between January 1,
2015 and August 31, 2015.
(b) Identify all OSI investigations covering the
subject matters set forth above and closed between January
1, 2015 and the date of the disclosure to plaintiff.
(c) Of the investigations closed during that
timeframe, identify those that were opened between January
1, 2015 and August 31, 2015.
Id. at 11. The order then required the DOCCS either to review the files
associated with the investigations falling into the specified category, or the

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alternative, to provide to the court summary sheets of those OSI
investigations for in camera review. Id. at 11-12.
Under cover of a letter dated December 12, 2017 from Joshua
Pepper, Esq., Associate Counsel with the DOCCS, the court was provided
with a total of 290 OSI summary sheets, regarding investigations opened
in 2015, 2016, and 2017.1 See Dkt. No. 92-1. Of those, a total of 80 fall
into the category specified in my order, dated November 22, 2017. Based
upon a review of those 80 OSI summary sheets, I find that they include
sufficient information to apprise plaintiff of the nature of the investigations,
and the identities of any employees known to have been involved in the
matters under investigation.
In his cover letter, Attorney Pepper objects to the court disclosing
specific information concerning the investigations in progress at Clinton
between January 1, 2015 and August 31, 2015, relative to the issues of
smuggling and/or secreting of contraband or prisoner abuse. Dkt. No. 921. That objection is based upon the fact that during his deposition, plaintiff
refused to testify concerning his knowledge of investigations undertaken at

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The DOCCS production appears to have been significantly over inclusive,
including documents related to investigations that were opened after, and in many
instances well after, the close date of August 31, 2015.
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Clinton which, he claims in his lawsuit, provided the genesis for his being
abused by corrections officials at the facility.
The court agrees with the assertion of the DOCCS and the
defendants that having refused to disclose his knowledge concerning
investigations at the facility, plaintiff should not now be provided with
information concerning those investigations. Accordingly, having disclosed
to plaintiff's counsel information concerning the number of investigations
open during the relevant time period and concerning the subject matters
identified, and in light of plaintiff's refusal to testify as to his knowledge
concerning those investigations, I deem the DOCCS and the defendants
to be in full compliance with my November 22, 2017 order, and will
respectfully request that the Clerk of the Court return the materials
submitted for in camera review to Joshua Pepper, Esq., Associate
Counsel, New York State Department of Corrections and Community
Supervision, The Harriman State Campus, 1220 Washington Avenue,
Albany, New York 12226-2050. Attorney Pepper is directed to maintain the

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documents submitted for in camera inspection until the final disposition of
this case.
It is hereby SO ORDERED.

Dated:

January 9, 2018
Syracuse, NY

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