New York State Court of Claims

New York State Court of Claims

ORTIZ v. THE STATE OF NEW YORK, #2002-031-503, Claim No. 100120


Synopsis


State found liable for destruction of Claimant's property during cell frisk.

Case Information

UID:
2002-031-503
Claimant(s):
FERNANDO ORTIZ
Claimant short name:
ORTIZ
Footnote (claimant name) :
Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):
Claim number(s):
100120
Motion number(s):

Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
FERNANDO ORTIZ, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 30, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Fernando Ortiz filed Claim No. 100120 against the State of New York on April 7, 1999. Mr. Ortiz claims that, on October 29, 1998, while he was confined at Wende Correctional Facility, a correction officer searched his cell, took all his possessions, and piled them on the floor of his cell and on top of his bed. Upon completing the search, the officer left Claimant's cell without placing Claimant's personal possessions back where he had found them. Claimant further states that, after the cell search, he discovered that several items of personal property had been damaged. These included his eyeglasses and three personal photographs. He seeks compensation for the loss of this property. I conducted the trial of this claim at Wende Correctional Facility on May 7, 2002.

I note that Claimant had a difficult time expressing himself during his testimony and relied upon his claim for the details surrounding the incident, including the name of the officer that searched his cell. He even stated that he had trouble understanding English. However, I did observe that Claimant understood the State's only witness, Sgt. Higley, well enough to have formulated, without assistance, questions for the sergeant on cross-examination.

On October 29, 1998, the date of the incident, Claimant filed a grievance, asserting that he had been harassed by the officer that searched his cell, Correction Officer M. Radder. The grievance accused Officer Radder of "damaging my belongings," but did not mention anything specifically about torn pictures or damaged eyeglasses. Claimant also filed an institutional claim for property damage on November 24, 1998, in the amount of $55.00.

Claimant acquired his eyeglasses in 1997 while at Wende for the price of $15.00. Although Claimant listed damaged eyeglasses in his claim and in his institutional property damage claim form, during his testimony it became evident that he was more upset with the way his property was handled during the search and the fact that his personal photographs had been damaged in the process. He testified that, when the officer came to "shake down his house," he was supposed to tell Claimant. Claimant states he was in school at the time and discovered that his cell had been searched when he got out of class. Claimant asked the supervising officer what had occurred, but states that the supervising officer had no information for him.

The State called Sergeant Lawrence Higley. Sgt. Higley was the officer in charge of investigating Claimant's institutional property damage claim. Sgt. Higley acquired the "cell frisk slips" for October 29, 1998. The slips (admitted as Defendant's Exhibit A) indicated that there was no contraband found and no damage done during the search of Claimant's cell. Sgt. Higley testified that he reviewed Claimant's grievance, dated October 29, 1998, and noted that Claimant did not indicate that any property had been damaged. Further, Sgt. Higley determined that Claimant did not have any witnesses that could corroborate his claim. Sgt. Higley concluded that, had Claimant's property been damaged, he would have noted so in the grievance. Therefore, he determined that Claimant's damage claim was unfounded and recommended that the claim be denied (Defendant's Exhibit C).

Generally, an inmate may assert a claim for lost property in a grievance, especially if the contraband slip indicates that property was damaged during a search. However, an inmate can choose not to use the grievance process and file an institutional claim for damages requesting an investigation directly through a steward. Sgt. Higley stated that he dealt with the Claimant's damaged property claim and not with the inmate grievance alleging harassment.

Based on the evidence, I find that Claimant's cell was searched on October 29, 1998, that, during the search, Officer Radder took Claimant's personal possessions and piled them up on the bed and the cell floor. Officer Radder did not find any contraband and did not notice that any property had been damaged during the search. I note that inmates may pursue property damage claims either through an inmate grievance or by direct complaint to the steward. I find Claimant's testimony credible. Claimant did allege property damage in his grievance. The fact that he did not identify the particular property damaged makes sense, given the fact that his grievance was primarily concerned with what he perceived as harassment. Also, the grievance was filed the day of the incident and when Claimant's possessions had been piled on his bed and on the cell floor. He may not have had occasion to inventory all his property until later when he began the process of putting away his belongings. In any event, Claimant had the option of going through the facility steward to seek redress for the damaged personal possessions; it was not necessary for him to include a specific list of damaged property in his grievance.

I find Defendant responsible for the destruction of Claimant's photographs during the October 29, 1998 cell search. Claimant had requested that the facility reimburse him in the amount of $30.00 for the damaged photographs. I find this amount to be reasonable (
see, Green v State of New York, Ct Cl, Dec. 13, 2001 [Claim No. 96497 - MacLaw No. 2001-009-110], Midey, J)[1]. Claimant is awarded $30.00 plus interest from October 29, 1998. I make no award for the damaged pair of eyeglasses, as I understood Claimant to state at the trial that he was satisfied with how the facility handled his need for replacement eyeglasses.
Let judgment be entered accordingly.

July 30, 2002
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims



[1]
This, and other Court of Claims decisions, may be found on the Court of Claims website at http://www.nyscourtofclaims.state.ny.us.