New York State Court of Claims

New York State Court of Claims

PACHECO v. THE STATE OF NEW YORK, #2002-032-501, Claim No. 104032


Synopsis


Prison inmate who was wrongfully confined on tuberculosis hold for eight days is awarded $200.00. The claim for property loss is denied, as seizure and destruction of the contraband property was authorized

Case Information

UID:
2002-032-501
Claimant(s):
MILTON PACHECO
Claimant short name:
PACHECO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104032
Motion number(s):

Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Milton Pacheco, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael C. Rizzo, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
December 2, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision
On September 24, 2002 this claim was tried
at Clinton Correctional Facility in Dannemora, New York.
Milton Pacheco (claimant) filed this claim,
pro se, on March 28, 2001, alleging as his first cause of action that from January 14, 2001 to January 22, 2001 he was wrongfully confined in his cell for twenty-three hours a day under tuberculin hold for refusing to take a tuberculosis skin test. Claimant's second cause of action is for the illegal confiscation and destruction of two hot pots by the staff at the Correctional Facility.
Regarding the first cause of action, claimant testified that on or about January 14, 2001, a nurse came to his cell informing him that he had to undergo a tuberculosis skin test. Claimant objected to the skin test because he already completed the mandatory tuberculin hold period with three clear chest x-rays and was released into the general population after successfully completing these tests (Exhibit 4). Indeed, the finding of the Central Office Review Committee, on an issue related to this claim, notes that claimant was confined to his cell from May 31, 1996 until July 31, 1998 (Exhibit 6). He had undergone the tuberculin hold period because he had initially objected to the tuberculosis skin test for religious and constitutional reasons. Despite this information, the nurse informed him that she would confine him to his cell if he did not take the test.
Claimant was confined to his cell from January 14, 2001 until January 22, 2001. During this time he was not allowed to attend programs or receive family visits. He was allowed only three showers per week and only had one hour of recreation per day. He wrote to various people informing them of his predicament and pleading for assistance. One of these people was the Commissioner of the Department of Correctional Services, Glenn S. Goord.

On January 22, 2001, he was visited by a Mr. Gordon from the Correctional Facility's medical office who explained to him that an error had been made and that he would be released from tuberculin hold. Claimant was released that day. At trial, claimant produced a letter dated February 23, 2001 from Lester N. Wright, M.D., a Deputy Commissioner at the Department of Correctional Services, who answered the letter that was written to Commissioner Goord (Exhibit 1). This letter states:

The Division of Health Services has investigated your concerns with the health care staff at Clinton Correctional Facility. It is my understanding that approximately two months ago there was a change in the TB liason (sic) at the facility and you were inadvertently returned to TB hold status. You were released from TB hold on January 22, 2001 after the Infection Control Nurse reviewed your status.
Without addressing the foregoing letter, defendant produced at trial John Mitchell, the Nurse Administrator at the Correctional Facility. Nurse Mitchell testified that he reviewed the records pertaining to this case and could not see from such records that claimant was put on tuberculin hold. Additionally, this witness indicated that if claimant was on tuberculin hold he would have been moved to another portion of the facility.

The Court credits claimant's testimony that he was confined from January 14, 2001 until January 22, 2001. The Court believes that someone from the medical office came to claimant in his cell on January 22, 2001 to tell him that an administrative error led to his confinement. This testimony is supported by the letter from Lester N. Wright, M.D. which essentially corroborates that conversation. The testimony of Mr. Mitchell that there was no record of inmate Pacheco being on tuberculin hold during that time period is not dispositive.

The Court awards inmate Pacheco $200, or $25 per day, for his wrongful confinement during that time period.

Claimant's second cause of action is for the reimbursement for the cost of two hot pots which he alleges were wrongfully confiscated from him and destroyed by the Correctional Facility.

On December 15, 2000 claimant's cell was frisked during a facility frisk conducted that day. Among other items, two altered hot pots, considered contraband, were found in claimant's cell (Exhibit B). The contraband was confiscated and the inmate was notified that the "contraband will be destroyed, donated or returned to you as dictated by departmental policy and procedure" (Exhibit A). Testimony from Correction Officer Vincent Grom at trial described an altered hot pot as one that may have a cable splice or one where the burner is taken from the hot pot and used to cook food.

Claimant filed a grievance claim which was denied. The explanation for the disapproval states: "Security investigation revealed items were altered and were destroyed per facility procedures..." (Exhibit 11). Sergeant James Douglass, Jr., a supervisor at Clinton Correctional Facility, testified that it is within the discretion of the hearing officer to determine the disposition of contraband. Contraband is usually destroyed. In the present case, Hearing Officer Baldwin, having found the hot pots were contraband, decided that they should be destroyed (Exhibit C-1). Claimant did not present any evidence that the hot pots were unaltered. Therefore, this cause of action is dismissed.

The Chief Clerk is directed to enter judgment in favor of claimant in the amount of $200.00.[1]
To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).
Let judgment be entered accordingly.


December 2, 2002
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims




[1]The amount claimed has been amended sua sponte to conform to the proof.