Inmate bailment claim dismissed, no proof of ownership or value presented.
|Claimant(s):||TREVIS L. FUNCHES|
|Claimant short name:||FUNCHES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||TREVIS L. FUNCHES
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: Christina Calabrese, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 5, 2018|
|See also (multicaptioned case)|
The trial of this claim was heard on April 25, 2018 via video-conferencing technology.
Claimant testified on his own behalf and claimant's exhibits 1 through 6 were received in evidence. Defendant presented the testimony of Sergeant John Bunce and defendant's exhibits A through C were received in evidence.
Claimant alleges that, during his incarceration at Eastern NY Correctional Facility, he was wrongfully confined after a disciplinary hearing when he was found guilty of possession of synthetic marijuana on May 20, 2015 (Exs. 3, A). Claimant also contends that the correction officer who performed the drug test on the contraband was not properly trained and that he did not properly conduct the drug test (Exs. C, 3). Claimant further alleges that he was wrongfully confined after another disciplinary hearing, when he was found guilty of a movement regulation violation on June 21, 2015 (Ex. B). Finally, claimant alleges that his personal property was not delivered to him while he was in the special housing unit (SHU).
Claimant testified that he was questioned by Sergeants Bunce and Tacti about whether claimant was in possession of the contraband found on the floor near the dental chair in the dental room at the facility on May 20, 2015, where claimant had been treated that day. Thereafter, claimant was issued a misbehavior report (Ex. A, p 3). Claimant argued at his disciplinary hearing and at trial that the contraband had not been properly tested. Specifically, claimant argued that the proper testing procedure required that the officer begin testing the contraband with marker A and proceed through all markers concluding with marker Z to determine the nature of the substance recovered and that this procedure was not followed. After a disciplinary hearing, claimant was found guilty of possession of the contraband, which was determined to be synthetic marijuana. Claimant testified that the guilty finding was based upon conjecture rather than facts (Ex. A, p 2). After a successful CPLR article 78 proceeding, the finding of the hearing officer was overturned on the ground that it was not supported by substantial evidence and claimant's record was expunged (Ex. 1).
Claimant also testified that he was issued a misbehavior report for failing to appear for a mandatory call out at the law library on June 21, 2015 (Ex. B, pp 6-8). Claimant had filled out a call-out notification to go to the law library; however when he was called out to go to the law library, claimant failed to appear. Claimant testified that he did not appear because he was locked in his cell and he also believed that he did not have to report to call out because he was observing Ramadan and therefore was exempt from programs.
On cross-examination, claimant was confronted with his disciplinary hearing testimony that he did not check the board for call out to the law library and remained in his cell for Ramadan (Ex. B, p 12).
With regard to claimant's lost property claim, he testified that he received $12.00 compensation for his lost hot pot, but that he did not receive compensation for the other lost items listed on his inmate claim form. The other lost items included: Timberland boots, which claimant valued at $180.00, a fan, nine packs of cigarettes, headphones, a set of velour sheets, an extension cord and 28 stamps (Ex. 6). Claimant conceded that the facility did not permit boots costing more than $49.99; however he maintained that such boots were often observed in the facility.
At the conclusion of claimant's case, defendant moved to dismiss the claim for failure to make out a prima facie case. Defendant argued that the claims of wrongful confinement were not based upon any alleged due process violation because claimant argued only that the guilty findings were not supported by the facts. Defendant argued that this is not a basis for finding that the confinement was wrongful and subject to an award of money damages. With regard to claimant's lost property, defendant argued that claimant received his sheets, fan, headphones, and extension cord when he was released from SHU, and that he received $12.00 compensation for his lost hot pot (Ex. B). Defendant also argued that claimant did not prove that he possessed boots valued at $180.00 because the facility did not allow inmates to be in possession of boots valued at greater than $49.99. Claimant opposed the motion. The Court reserved decision on the motion.
Defendant then presented the testimony of Sergeant Bunce. He testified that he has been employed with the New York State Department of Corrections and Community Supervision for 22 years and was on duty at Eastern NY Correctional Facility in May of 2015. Bunce was involved in the investigation of claimant regarding the contraband recovered on May 20, 2015 (Ex. A). Bunce also testified at claimant's disciplinary hearing regarding the charge of possession of contraband (Ex. A, p 5). The substance recovered was tested and found to be synthetic marijuana (Ex. 3, p 5; Ex. C). Contrary to claimant's argument, Bunce testified that the drug test need not start at marker A and proceed through marker Z. Rather, the initial test can be for a specific drug, which necessarily does not have to start with marker A. Then, depending on the result of the initial test, testing can proceed from there until the substance is identified.
Bunce testified that claimant's property located in his cell was packed in his absence while he was being transferred to SHU (Ex. B, p 17). Thereafter, claimant signed an I-64 form indicating receipt of his property on May 30, 2015 (Ex. B, pp 18-19). Bunce also investigated claimant's missing property claim filed with the facility. With regard to the sheet set, fan, headphones and extension cord, claimant indicated that the claim had been resolved because he had received those items (Ex. B, p 16). The nine packs of cigarettes and 28 stamps were consumable items and therefore the claim of their loss was found to be without merit (Exs. 2; B, p 15). With regard to the boots, valued by claimant at $180.00, there was no merit found regarding claimant's institutional claim because claimant did not provide any proof of ownership. Bunce further explained that boots costing more than $50.00 were considered contraband. The only meritorious claim found by the facility was for claimant's lost hot pot, for which he was compensated $12.00 (Ex. 2).
On cross-examination, claimant was confronted with a memorandum completed by Sergeant Bey that stated he interviewed claimant on June 22, 2015 and "discussed in great length" claimant's missing property from SHU (Ex. B, p 16). The memorandum states:
"[h]e [claimant] stated that he had received one bag of property upon release of SHU which contained his sheet set, fan, head phones [sic] and extension cord.
He still claimed he was missing nine packs of cigarettes, 28 stamps, one pair of timberland boots valued at $180.00.
I advised inmate Funches that it was impossible for him to obtain any pair of footwear with a value greater than $50.00 excluding tax and shipping per [Directive] 4911.
I turned this information over to Sgt. Bunce who is processing this claim"
(id.). Claimant did not confirm that the facts set forth in the memorandum were true.
Claimant was also confronted on cross-examination with his I-64 form that he signed, which confirmed his receipt of two sets of sheets (id. at 18-19). Claimant stated that there was another set of sheets that remained missing. Claimant confirmed his receipt of $12.00 for his lost hot pot. He also acknowledged that Directive 4911 prohibits inmates from possessing boots valued at greater than $50.00.
At the conclusion of the trial, defendant renewed its motion to dismiss. Claimant opposed the motion. The Court reserved decision on the motion.Analysis
It is well established that the State is accorded absolute immunity for the actions of its employees involved in the investigation and prosecution of disciplinary charges brought against inmates in a correctional facility and for the actions of the hearing officer charged with presiding over and reviewing such matters. This immunity covers discretionary conduct due to its quasi-judicial nature, even if that discretion was erroneously exercised or the findings were subsequently overturned (see Arteaga v State of New York, 72 NY2d 212 ; Loret v State of New York, 106 AD3d 1159 [3d Dept 2013]; Holloway v State of New York, 285 AD2d 765 [3d Dept 2001]; Varela v State of New York, 283 AD2d 841 [3d Dept 2001]).
Absolute immunity may be lost, however, if the State acted in contravention of a governing rule or regulation which caused the inmate to suffer actual prejudice or a deprivation of his due process rights (cf Davidson v State of New York, 66 AD3d 1089 [3d Dept 2009] [defendant's failure to comply with regulatory time provisions in conducting disciplinary hearing did not eliminate defendant's cloak of immunity because claimant did not show that he suffered prejudice from the delay; wrongful confinement claim dismissed]). Recently, in Miller v State of New York, 156 AD3d 1067 [3d Dept 2017], the Third Department held that "[t]o the extent that claimant asserts that drug testing directives were violated, they do not relate to the due process concerns of the hearing and do not serve as a basis for the wrongful confinement cause of action." So too here, the Court finds that claimant may not recover on his wrongful confinement claim based upon his allegation that the testing of the contraband was not done in accordance with the appropriate procedures and consistent with proper training in the process of drug testing. Claimant's allegation is unsupported by the record and is not a basis upon which this Court can find that claimant was wrongfully confined.
It is further noted that claimant did not make any allegation that his due process rights were violated at either of his disciplinary hearings. Rather, claimant maintains that the determination of guilt at his disciplinary hearing on the possession of contraband was based on conjecture and not fact. With regard to the finding of guilt after the disciplinary hearing on the charge of being out of place, claimant maintains that he was justified in not appearing for the mandatory call out because he was locked in his cell and, due to his observance of Ramadan, he was exempt from participating in programs. Claimant's contentions are not a basis for finding that he was wrongfully confined and entitled to money damages (see Shannon v State of New York, 111 AD3d 1077 [3d Dept 2013]). Accordingly, claimant's wrongful confinement claims warrant dismissal.
The State, as a bailee of an inmate's personal property, owes a common law duty to secure the property in its possession (see Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]). A rebuttable presumption of negligence arises where it is established that the property was delivered to defendant with the understanding that it would be returned to claimant and that defendant subsequently failed to return the property or returned it in a damaged condition (see Reed v Cornell Univ., 138 AD3d 816 [2d Dept 2016]). Claimant's failure to make a prima facie showing requires dismissal of the claim. If, however, claimant makes a prima facie showing, then there is a presumption of liability and the burden shifts to defendant to come forward with evidence to overcome the presumption by establishing a non-negligent explanation for the loss of claimant's property.
Upon consideration of all the evidence, the Court makes the following findings. Claimant testified that he received $12.00 in compensation for his lost hot pot; therefore the Court makes no award for the lost hot pot. Claimant testified that he was aware that Directive 4911 prohibited inmates from possessing boots valued in excess of $50.00; nonetheless he maintained that such boots were present in the facility. Sergeant Bunce testified that pursuant to Directive 4911, boots costing more than $50.00 were not allowed in the facility and were considered to be contraband. Other than his own self-serving testimony, claimant did not submit any independent proof of ownership of Timberland boots or their cost. Accordingly, the Court makes no award for claimant's claimed loss of $180.00 for the Timberland boots. Claimant also failed to submit any proof of ownership for the 28 stamps and the nine packs of cigarettes that he claims were lost. Accordingly, the Court makes no award for the stamps or the cigarettes.
In sum, the Court finds that claimant has failed to establish, by a preponderance of the credible evidence, that the State should be held liable for the alleged loss of claimant's property (see Grecco v Corbis Sygma, 281 AD2d 239 [1st Dept 2001]).
Accordingly, defendant's motion to dismiss, made at the conclusion of trial, is now GRANTED and the claim is DISMISSED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 126639.
June 5, 2018
White Plains, New York
Judge of the Court of Claims