On September 24, 2002 this claim was tried
at Clinton Correctional Facility in Dannemora, New York.
Milton Pacheco (claimant) filed this claim,
, 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
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
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
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
The Chief Clerk is directed to enter judgment in favor of claimant in the
amount of $200.00.
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.