Claimant failed to prove his claim pursuant to 7 NYCRR section 1700.8. Claim is dismissed.
|Claimant short name:||EDWARDS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||WILLIAM EDWARDS
|Defendant's attorney:||BARBARA D. UNDERWOOD
Attorney General of the State of New York
By: Thomas Trace, Esquire
|Third-party defendant's attorney:|
|Signature date:||December 3, 2018|
|See also (multicaptioned case)|
Claimant seeks reimbursement for property he alleges the State lost or disposed of while he was an inmate at Mohawk Correctional Facility. A trial was held by videoconferencing on October 1, 2018.
On August 25, 2015, Claimant was issued a misbehavior report by Correction Officer (CO) J. Deily and was sent to the Special Housing Unit (SHU) at approximately 1:10 p.m. Claimant was escorted out of the dorm before the officer packed his belongings. Claimant's property was packed up by CO Deily and stored until Claimant was released from the SHU on October 4 or 5, 2015, and when he went through his property he noticed some was missing. On October 8, 2015, he filed an administrative Inmate Claim Form.(1) The items missing were legal documents that filled a draft bag, 15 photos, reading materials, and cosmetics. He estimated the value of his lost property to be $860.00. Claimant testified that the photos have been replaced by family. The only items Claimant now seeks to recover are the legal documents or their cost. He intended to use the legal documents in a section 1983 action involving Rikers Island. Claimant contends the dorm officer, CO Deily, destroyed his legal documents when she packed his property in retaliation for a grievance he filed against her.
At the initial review of Claimant's administrative lost property claim on November 19, 2015, his reimbursement request was disapproved. The explanation given for the denial was that after an investigation, there was no evidence that any staff was involved in Claimant's loss of property. Claimant appealed the decision and the appeal was denied on February 11, 2016.
Claimant admitted into evidence various DOCCS Directives. Directive 4934(2) entitled "Inmate Property - Temporary Storage of Personal Belongings" dictates the procedure for addressing an inmate's personal property when the inmate cannot move his own property. That directive requires the correction officer to pack and list the inmate's property, and if the inmate is being moved from general housing to the Special Housing Unit, the officer packing the property must complete Form 2078 (SHU Property Process Form) as the packing officer. The officer who receives the property in the SHU will sign and complete Form 2078 as the receiving officer. Claimant entered Form 2078 into evidence(3) and although difficult to read, it does reflect that four bags of property were packed and delivered to the SHU and on August 25 at 2:30(4) p.m., four bags of Claimant's property were received at the SHU. Directive 4913 entitled "Inmate Property" describes what property inmates are permitted to have and provides that no inmate may have more property than can be placed in four standard DOCCS draft bags, including legal material.
Claimant pointed out that in CO Deily's logbook(5) she logged out at 2:30 p.m., and she transported three bags of Claimant's property to the SHU at 2:50 p.m. Claimant also points to a form entitled "Inmate Property Transferred to SHU"(6) on which CO Deily notes that some of Claimant's property was not secured in a locker. Claimant argues that this supports that he had additional property for which CO Deily did not account. Also in evidence is a memorandum from CO S. Rook to Captain St. Louis dated October 30, 2015.(7) CO Rook indicates that on August 25, 2015 during Tour III, he found a bag of property with Claimant's name under the bottom bunk. CO Rook was notified that one bag of property was picked up during "Rounds I" at approximately 4:20 p.m. CO Rook logged in at 2:30 p.m.,(8) but it is not clear when he found the additional bag of property under Claimant's bunk bed.
Claimant also testified that he was charged for a library book which he never returned, because the book was in his property but never delivered to him. Claimant alleges that this, too, supports his position that he had additional property which was never returned to him. The cost of the library book was eventually reimbursed to his account, so the facility did not hold him responsible for the loss.
Defendant called CO Deily to testify. CO Deily testified that she packed all of Claimant's property. She denied destroying or disposing of any of his property. CO Deily testified that she noted on the form for Inmate Property Transferred to SHU that not all of Claimant's property was secured in a locker because his blankets and pillows were on his bed. She noted that Claimant was housed in a double bunk cell. CO Deily could not fully explain the discrepancy between her logbook entry that three bags of property were packed, and a short time later, four bags of property were delivered to the SHU. None of the paperwork seems to account for the additional bag of property found by CO Rook and picked up at 4:20 p.m. on August 25, after four bags of property had already been received at the SHU, as listed on the SHU Property Process Form (Form 2078).(9) CO Deily's testimony also did not account for these bags.
DOCCS Directive 2733, sets forth the procedure for processing inmates' lost property claims. A stated general principle in the directive provides that if an inmate's property is lost while it is in the control of DOCCS and DOCCS fails, without good explanation, to deliver it to the inmate in the same condition as when DOCCS received it than there is a rebuttable presumption that DOCCS is responsible for the loss. To rebut the presumption there must be a showing after investigation that all DOCCS' staff with a duty to protect the inmate's property carried out their duties. The memorandum dated October 28, 2015(10) from Captain J. St. Louis to J. Harper, DSS, details the investigation into Claimant's missing property and finds that there was no evidence that staff mishandled Claimant's property. The memorandum indicates that the logbook supports that on August 25, 2015, Claimant was sent to the SHU at approximately 1:10 p.m., and three bags of property were packed at 2:12 p.m., and "sent to SHU at 2:50 p.m." The memorandum goes on to note that CO Deily was the Tour 2 officer and CO Rook was the Tour 3 dorm officer. CO Rook found a bag of Claimant's property under his bed and sent it to the SHU at 4:20 p.m. The memorandum then refers to four bags of property on the Form 2064 (Personal Property Transferred Form)(11) and some legal papers, which Captain J. St. Louis found supported his determination that Claimant had suffered no lost property.
The appeal review of his administrative lost property Claim Form(12) indicates that his appeal was disapproved because Claimant received all his property and he failed to "verify opening or pending legal case & cost of reproduction of legal documents."
The Personal Property Transferred form (I-64),(13) which is the itemization of Claimant's packed property, appears to be dated August 29, 2015, and shows four bags of property which included books and magazines. Next to the box by "legal papers" and letters there are marks that are illegible so there is no evidence what, if any, such documents were packed. In the bottom right-hand corner of the document, Claimant signed the form.(14)
To establish a prima facie case of negligent bailment, an inmate claimant (the bailor) must establish that his personal property was delivered into the possession of facility officials (bailee) and the property was not returned to him or was not delivered in the same condition (see Osborn v Cline, 263 NY 434 ; Mack v Davidson, 55 AD2d 1027 [4th Dept 1977]; Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]); Gillard v State of New York, UID No. 2010-044-008 [Schaewe, J., June 21, 2010]). An essential element of a bailment is that the bailee takes possession of the property and the bailor relinquishes control (Osborn, 263 NY 434; Hutton v Public Stor. Mgt., 177 Misc 2d 540 [Sup Ct, App Term 2d Dept 1998]). A prima facie case creates a presumption of negligent bailment and shifts to Defendant the burden to overcome that presumption by demonstrating that the loss was due to circumstances not within its control or that the property was damaged without its fault, or by establishing that it exercised ordinary care (Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049, 1050 [3d Dept 1981]; Alston v State of New York, 9 Misc 3d 1126 [A] [Ct Cl 2005]; Jackson v State of New York, UID No. 2007-044-010 [Schaewe, J., Mar. 22, 2007]).
Here, Claimant has established that all of the property in his dorm was taken into the possession of the State when CO Deily packed his belongings after he had been removed to the SHU on August 25, 2015. On August 29, 2015, four bags of property are listed on the I-64 form. There is a discrepancy between the number of bags CO Rook packed and the number of bags transferred to the SHU around 2:50 p.m. on August 25. Although another bag was, according to CO Rook, sent to the SHU at 4:20 p.m. that same day, there is no indication that this bag was ever accounted for. Although this fifth bag found by CO Rook and transported after four bags were already received in the SHU would have exceeded the four bag limit permitted by DOCCS, the property in the fifth bag must be accounted for. This has not been done. Nonetheless, Claimant has failed to establish exactly what legal documents were missing or the number of documents. It is Claimant's burden to prove the value of the lost property. The applicable regulation provides:
"[l]ost legal papers often have no value. If records in a criminal case are lost when there is no further right of appeal and no further use for them, then the records have no more than 'sentimental value,' that is, no value. If the lost legal papers can still be used, for example, in a pending or future legal proceeding, then the loss may be compensated by either replacing the papers or paying the reasonable cost to reproduce them. If an inmate can obtain replacement copies for no cost, then the lost papers have no value. If an inmate claims that there is a cost to reproduce the lost papers, then the inmate should produce an estimate for the cost to reproduce the lost papers, which normally should not exceed the cost shown in the bill for the original papers." 7 NYCRR § 1700.8.
Here, Claimant has failed to prove the value of any lost legal papers and, therefore, his claim must be DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
December 3, 2018
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
1. Exhibit 1.
2. Exhibit 13.
3. Exhibit 5.
4. The minute portion of the time is very difficult to read.
5. Exhibit 11.
6. Exhibit 6.
7. Exhibit 10.
8. Exhibit 11, page 2.
9. At approximately 2:12 p.m., CO Deily's logbook reflects she had packed three bags, she signed Form 2078 at approximately 2:30 p.m., which reflects SHU processed four bags, and the bag CO Rook located was not picked up until 4:20 p.m.
10. Exhibit 9, 2 pages.
11. Exhibit 4.
12. Exhibit 1, page 2.
13. Exhibit 4.
14. The form above where Claimant signed his name has a line through several boxes adjoining various statements, many inconsistent (i.e., the first box is next to the statement, "I have completed Express Mail Request and Disburs. Form", the second box is next to the statement "I don't want Express Mail", both boxes have a line through them). The last box with a line provides "I am not leaving active legal case material behind and I have been instructed to include all active legal material in my 4-bag limit."