A claim of any inmate in the custody of the Department
of Correctional Services for recovery of damages for injury to or
loss of personal property may not be filed unless and until the
inmate has exhausted the personal property claims administrative
remedy, established for inmates by the department. Such claim
must be filed and served within one hundred and twenty days after
the date on which the inmate has exhausted such remedy.
Claimant has submitted no opposition to the motion.
Defendant alleges that Claimant filed an administrative claim with Marcy
Correctional Facility on June 19, 2002, 16 days after he filed his claim with
this Court. The claim was denied on June 27, 2002, and no appeal from that
decision was taken. Thus, defendant argues that claimant still has not utilized
all of his administrative remedies; but in any event, clearly filed his claim in
this Court before his administrative remedies were exhausted.
The New York State Code of Rules and Regulations indicates that the Department
of Correctional Services (hereinafter DOCS) has established a two-tier system of
administrative review for the loss of inmates personal property which consists
of an initial review and an appeal (7 NYCRR §1700.3).
The claim and an attached unsworn document with exhibits labeled, "Brief on
Behalf of Franklyn Pereyda" indicates that on June 7, 2001, claimant was moved
to Downstate Correctional Facility, and thereafter transferred to federal
custody and moved to Pike County Jail in Pennsylvania where he discovered that
his "personal Parole clothes were missing" (Claim ¶ 2). Claimant then
corresponded with the correctional facility from June 28, 2001 until February
25, 2002, in an effort to get the facility to send his clothing to his mother.
The facility refused. In a letter from Lee Jubert, Deputy Superintendent for
Security at Marcy Correctional Facility dated March 25, 2002, claimant was
advised that the facility had forwarded his personal property to Pike County
Jail on February 22, 2002. Claimant asserts that he waited two weeks and when
he still did not receive his clothing he forwarded a letter dated March 12, 2002
to Gary Greene, Superintendent of Marcy Correctional Facility (Exhibit "G").
In that letter, claimant indicates that he is submitting an Inmate Claim Form
for his lost personal property, although claimant does not attach a copy of the
form. Attached as Exhibit "H" is a copy of a memorandum to claimant from Lee
Jubert, Deputy Superintendent for Security, dated March 25, 2002 advising that
his claim was denied. Included as Exhibit "I" is a letter dated March 29, 2002
to Mr. Greene appealing the denial of his claim. In that letter he notes that
the denial of his claim was not submitted on the standard Inmate Claim Form,
which includes a place for an appeal, so he requested that the letter be
considered his formal appeal. Claimant asserts that he did not receive any
response. Curiously, on the copy of the Inmate Claim Form, dated March 12, 2002,
attached to defendant's paperwork, the initial review of the claim which is on
the standard form, was not completed until June 27, 2002.
Claimant's recitation of the administrative review of his loss of personal
property varies significantly from defendant's version. Unfortunately, claimant
has failed to respond to this motion. In support of defendant's position, the
Court has before it the affidavit of Laurie Arria, Principal Account Clerk at
Marcy Correctional Facility, whose duty it is to review inmate administrative
claims for loss or damage to personal property. Ms. Arria asserts that the
Inmate Claim Form was received at Marcy Correctional Facility on June 19, 2002.
Ms. Arria reviewed claimant's claim on June 27, 2002 and denied it. She states
that she forwarded a copy of the decision to claimant at Pike County Jail on the
same day, and no appeal has been pursued by claimant.
Accordingly, this Court is constrained to find that claimant has failed to
exhaust his administrative remedies and the claim that he filed with this Court
on June 3, 2002 must be dismissed in accordance with Court of Claims Act
§10(9). Defendant's motion is GRANTED and the claim is DISMISSED.
The Court considered the following documents in deciding this motion:
Affirmation of Joel L. Marmelstein, Assistant Attorney General,
in support, with exhibits attached
No opposing documents were filed by claimant.