New York State Court of Claims

New York State Court of Claims

GRANT v. THE STATE OF NEW YORK, #2002-013-509, Claim No. 98120


Prison inmate failed to establish that a four-day delay in approval of a postage disbursement, which apparently was caused by an error on the part of the facility's mail room staff, caused harm for which he is entitled to compensation. Causes of action based on other alleged mail room or inmate account error were not proven.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: WENDY E. MORCIO, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 4, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


This claim is based on allegations of various irregularities in connection with the operation of the mail room at Gowanda Correctional Facility (Gowanda). Claimant alleges: (1) that a certain item of mail -- a certified copy of a death certificate that he had ordered directly from the City of Buffalo Bureau of Vital Statistics -- was wrongfully withheld from him; (2) that his attempt to mail a document to the Attorney General in order to timely commence a lawsuit was wrongfully prevented on the ground that he did not have sufficient funds to cover the postage; (3) that certain catalogs he had ordered were wrongfully withheld as contraband; and (4) that a magazine subscription order was improperly rejected by mail room staff.[1]

In support of his first cause of action, Claimant presented documentary evidence establishing his effort to order the death certificate, which included a December 6, 1996 memorandum, signed by a mail room clerk, informing him that the document was "not allowed" and had been placed in his personal property in inmate records (Exhibit 3). Claimant subsequently instituted a grievance, challenging the retention of the death certificate and contending that it related to his criminal appeal (Exhibit 5). The grievance resulted in Claimant's receiving a copy of the death certificate, from which the address of the decedent's family was to be redacted (Exhibit 7), although, in fact, the information redacted were the names of the decedent's parents, his Social Security number, and the cause of death (Exhibit 8). According to Claimant, because of the delay and the improperly redacted information, he was unable to use the death certificate in his appeal.

Catherine D. Goll, Senior Mail and Supply Clerk, testified that the death certificate was withheld because it contained confidential information -- the Social Security number, and names and addresses of third parties. When asked how an inmate could object to or contest the decision to withhold such mail, she referred to the notation on the memorandum which instructs inmates who have questions to "drop a tab" to the Inmate Records Department. She was unable to state whether Claimant took such action, although, as noted, a grievance was subsequently brought. When asked by Claimant why notification had not been given to the sender, as required by facility rules, she observed that the death certificate arrived in a self-addressed, stamped envelope that bore Claimant's name and address as the return address. Claimant, therefore, was both the sender and the recipient, and he was given notification. Because the envelope did not indicate that the document had been sent by the Bureau of Vital Statistics, it did not qualify as "privileged mail," which is not be opened by mail room staff.

With respect to the second cause of action, Claimant stated that if his mail to the Attorney General had not been delayed by mail room staff error, his claim would have been timely and he would not have been required to bring a motion for permission to file a late claim application. (That motion was ultimately successful.). Directive 4421(III)(A)(3)(c) provides that advances for legal mail shall be made when required by statute or court rule and that no request for a legal mail advance is to be denied without prior consultation with department counsel. Mail which is sent out under this provision is referred to as "forced." The documentation presented at trial (Exhibits 18, 19, 20, A) establish that Claimant submitted disbursement forms for letters to be sent to both the Court of Claims and the Attorney General; that the disbursement requests were considered on September 26th; that the request relating to the mail to the Court of Claims was approved, but the one requesting "special service" (certified mail, return receipt requested) to the Attorney General was disapproved on that date; that the latter disbursement was returned to Inmate Accounts on September 30th, at which time "special service" was approved and the document consequently mailed. Testimony at trial confirmed this course of events.

Based on a statement in the subsequent grievance decision that "[t]he investigation did not indicate that staff acted maliciously in any way," I accept Claimant's contention that he properly notified the mail room staff that certified mail, return receipt requested service was required by statute and that both disbursements should have been approved when first submitted. A mistake, therefore, occurred. On the other hand, I am not convinced that the four-day delay caused compensable harm to Claimant. I note that Claimant's written statement supporting the need for special service and, if necessary, a "forced" disbursement (Exhibit 19 - third page), which he contends was supplied to the mail room on September 24th. His statement also indicates that the "papers have to be in Albany by the 27th." By statute, the date on which the Attorney General is served with a notice of intention or a claim is determined by the date of receipt, not the date of mailing (Court of Claims Act §11[a]). It was Claimant's decision to wait until three days before the deadline for filing before making his request for disbursements and mailing, and there is nothing other than his unsupported assertion on which to base a conclusion that the notice of intention would have been received by the Attorney General even if the disbursement had been promptly approved. Because Claimant's subsequent motion for permission to late file was ultimately approved, I also question whether this mistake resulted in monetary damages that could be calculated with any certainty.

With respect to the photographs and catalogs from Foxy Females, Inc. that had been requested by Claimant but were withheld from him on delivery to the facility, Claimant contends that he was entitled to receive them because they did not contain nude figures but, pictures of women in lingerie. He acknowledges that nude pictures could be properly refused. The investigative report into this matter (Exhibit 16), however, sets forth the definition of "nudity" established by the Central Office Review Committee, a definition that includes, among other things, pictures showing genital areas or the lower part of breasts "with less than fully opaque clothing." Catherine Goll, Senior Mail and Supply Clerk, testified that inmate business mail, such as catalogs, fall in a different category than inmate correspondence. When business mail contains subject matter that is not allowed, it is returned to sender with a notation as to the reason. The lingerie catalog mailed to Claimant from Foxy Females, Inc. contained some pictures that fell within the facility's definition of "nudity." She stated that even if some of the photographs in a catalog or book would have been permitted, the entire product is returned if some of them are unacceptable.

In addition, she testified that receipt of loose personal photographs -- such as the Polaroid pictures sent by Foxy Females, Inc. -- are prohibited by another regulation relating to inmate security (
see, Exhibit B).

Claimant's fourth cause of action relates to a subscription which he attempted to obtain from Crescent Publishing Group. He explained that such orders and subscriptions had to be submitted to the correction officer on the housing unit, with the disbursement form attached to the envelope in which the order was to be mailed. This was required because the material being ordered had to be approved before the disbursement would be issued. In this instance, the disbursement form (Exhibit 10) was disapproved on the ground that it was not accompanied by an envelope. Claimant testified, however, that several days after receiving notice of the disapproval, he received a letter from the publisher stating that they had received an empty envelope from him.

Ann Makowski, a calculations clerk in Inmate Accounts, testified that her office receives disbursement forms relating to inmate mail. She disapproved Claimant's request for the disbursement to Crescent Publications because there was no envelope with a stamp attached (Exhibit 10). On the date that Claimant's disbursement form was received, he apparently had enough money in his account to cover the subscription. If a stamped envelope had been received along with the disbursement form, it would have been sent, as long as the items requested were not on the list of improper material. She acknowledged that, in general, the envelope will be stapled to the disbursement form, and in this instance the form in question (Exhibit 10) had pin-holes suggesting that at one point something may have been stapled to the form. When a disbursement request of this type was received without an envelope, it was not her practice to contact anyone, either the mail room or the officer who had conveyed the form, to determine whether there had been one on it prior to receipt in her office.

I can only conclude that, assuming Claimant's account to be accurate, the envelope addressed to the publisher became detached from the disbursement form and that, because it was not attached to any form, it was mailed to the publisher as a normal piece of inmate correspondence. Nothing presented at trial suggests that the removal was deliberate or that subsequent disapproval of the disbursement was improper.

In conclusion, I hold that Claimant's second cause of action must be dismissed because, although Claimant established that there was an apparently inadvertent error in processing legal mail addressed to the Attorney General, that error did not result in any actual harm to Claimant. With respect to the other causes of action, Claimant has failed to establish a prima facie case of negligence, and Defendant's motion to dismiss those causes of action, on which decision was reserved, is now granted, and Claim No. 98120 is dismissed.

All motions not heretofore ruled upon are now dismissed.

Let judgment be entered accordingly.

March 4, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]Claimant also attempted to prove at trial that employees in the Facility's mail room and inmate account office engaged in a pattern of retaliatory discrimination against him. The claim does not contain specific allegations of such retaliation; the proof that Claimant attempted to offer at trial relates to events that would have been time barred in any event; and those events that were subject to proof do not support any finding of retaliation.