New York State Court of Claims

New York State Court of Claims

PALACIO v. STATE OF NEW YORK, #2005-018-451, Claim No. 107992


Synopsis


Claimant awarded $31.30 for the improper mailing of a prisoner's legal documents.

Case Information

UID:
2005-018-451
Claimant(s):
HERIBERTO PALACIO
Claimant short name:
PALACIO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107992
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
HERIBERTO PALACIOPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: HEATHER R. RUBINSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 22, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant filed a claim on July 9, 2003, seeking $1,285.19 in damages for lost property and unnecessary postal charges. The claim alleges in substance in paragraph 2, (1) on October 11, 2002, and November 6, 2002, unnecessary postal charges in the amount of $45.10 were posted against his inmate account; (2) around November 12, 2002, his property in the amount of $69.05 was damages or destroyed; (3) around March 20, 2003, his property in the amount of $755 was deliberately destroyed or stolen; (4) around June 1, 2003, property in the amount of $5.44 was damaged at Gouverneur Correctional Facility; (5) between June 1 and June 3, 2003, property in the amount of $400 was damaged at either Gouverneur or in transit to Auburn Correctional Facility; and (6) around February 19, 2003, he lost $10.60 in postage when a parcel was not delivered. A trial was held and this decision will address each allegation described above individually.
October 11, 2002, Unnecessary Postal Charges
The first incident occurred on October 11, 2002, when Claimant was being moved from Altona Correctional Facility to Upstate Correctional Facility (hereinafter, Upstate) with five bags of property. His bags were in the receiving room at Upstate when a sergeant said one bag had to be taken back and mailed to the prison. Claimant was charged $6.90 for postage which he felt was an unnecessary expense. According to Claimant, he was sent to Upstate because he had been placed in the Special Housing Unit. He testified that all his bags were in the van when he was transported, and the bags were taken inside the prison. Claimant was told at Upstate that only four bags were permitted, so one bag had to be returned to Altona and mailed to Upstate. Claimant signed the disbursement form for the postage to be deducted from his account, but said he was forced to do so. Claimant testified that the expense was unnecessary because the bag was already at Upstate.

On November 6, 2002, Claimant was charged $38.20 to ship two of six bags from Upstate to Gouverneur Correctional Facility. Claimant said he had not acquired any additional property while at Upstate so he should only have had the five bags he had on arrival. Additionally, the cost of mailing one bag previously was $6.90 so the cost of mailing two bags should not be $38.20. Claimant explained that when an inmate is scheduled for transfer, he is presented with blank forms to sign. If the forms are not signed, the property is thrown away. Claimant was unaware of the $38.20 charge from Upstate to Gouverneur Correctional Facility until he received his monthly inmate account statement. At the time of his transfer, when Claimant entered the transport vehicle, he saw all six of his bags on a truck owned by New York State. He questioned how the State could charge his account for postage when they were shipped by the State Department of Correctional Services. He also testified that the property mailed was his legal paperwork.

Claimant filed a grievance[1]
and he received an explanation from Acting Superintendent Hunt[2] which indicated that the weight of the property exceeded the United States Postal Service maximum of 70 lbs., so it was divided into two parcels. The I-64 forms[3] which related to his transfer were received into evidence and show that four bags which contained Claimant's clothes and personal property were on one form. The second form, identifying one bag, contained Claimant's legal paperwork, letters and magazines. The single bag was the one divided and mailed.
Claimant requested that the Court consider Directive #4917 dated July 6, 2000, which relates to packing procedures. Claimant did not have an actual photocopy of the directive. Instead he requested permission to read his handwritten copy of the directive into evidence. Claimant argued that the directive was readily available in the New York State Codes Rules and Regulations. Defendant strenuously objected. The Court allowed Claimant to read his handwritten copy of the directive into evidence subject to the Court being able to take judicial notice of it. After a review of the New York State Codes Rules and Regulations, no such provision exists, and the Court cannot take judicial notice. Nonetheless, given Claimant's
pro se status, and his attempt to obtain the directive from Defendant, albeit incorrectly, before trial, coupled with the fact defense counsel did not object to the accuracy of the content of Claimant's oral recitation of the directive, the Court will consider it.
Based upon that directive, the State failed to adhere to its own procedures by mailing Claimant's legal documents on November 6, 2002. The directive requires that an inmate's active legal materials are to be transferred with the inmate. Accordingly, for that portion of the claim, the Court awards $31.30 which is the amount of postage Claimant was charged ($38.20 minus the $6.90 which he would have had to pay to forward the fifth bag he had at Upstate when he arrived). The balance of Claimant's allegations fails to establish any negligence or wrongdoing on the part of the State.
November 12, 2002, Lost Property
Claimant alleges that the State was negligent on November 12, 2002, in its care of his property, causing damage in the amount of $69.05. The State moved to dismiss this portion of the claim as untimely. The second affirmative defense in Defendant's answer particularized the jurisdictional defect in accordance with Court of Claims Act § 11(c).

Court of Claims Act § 10(9) requires that a claim for lost or damaged property be filed within 120 days of the date Claimant exhausted his administrative remedies through the Department of Correctional Services. Although the Court was not provided with any documentation substantiating the time frame within which this particular incident was presented for administrative consideration, Defendant introduced Exhibit A, an offer of settlement made to Claimant from Nancy K. Martin, Gouverneur Correctional Facility Institutional Steward dated January 15, 2003, which Defendant purports was an offer of settlement on this particular claim of lost property and evidences the last date for Claimant's administrative remedies. Claimant did not dispute this; however, he asserted that he did not receive this letter until sometime in May 2003, because he was "out to court"[4]
for numerous court appearances in the custody of Rikers Island, a non-State facility. The date on which the 120-day time frame begins to run is the date the final administrative determination is made, not on the date notification is mailed or received (see Blanche v State of New York, 3 Misc 3d 830). From Exhibit A, Claimant had fourteen days to appeal the determination set forth in the letter, so the 120-day time frame began to run on January 30, 2003, the date on which Claimant's administrative remedies were exhausted. A claim needed to be served and filed by May 30, 2003. The claim filed on July 9, 2003, is untimely for Claimant's request for relief for this incident, and this portion of the claim must be DISMISSED.
March 20, 2003, Lost Property
Claimant testified that some of his property was lost on March 20, 2003 in violation of Gouverneur Correctional Facility rules and directives. In December 2002, Claimant was scheduled to attend a court appearance and was being moved. He claims his property was not packed and secured as required. When Claimant returned to Gouverneur, some property was missing. Claimant made various complaints to the facility.

Claimant said the procedure when an inmate is being moved is, a day or two before the transfer, the inmate's property is inventoried, bagged, and locked. In this case, Claimant still had legal items and personal property unsecured in his cell, which he shared with another inmate, when the correction officer came to get him to be transferred. Claimant objected to his property being left unsecured. Ultimately, Claimant's property was bagged but it was not inventoried and no I-64 form was completed for the bagged items. He testified he filed a lost-property claim for the missing legal material and magazines. After an investigation, Claimant's claim was denied. He felt the investigator had an attitude and did not perform an impartial investigation.

In addition to magazines, Claimant testified part of his criminal trial minutes were missing. Claimant could not identify what magazines were lost or the cost of the magazines or the replacement cost of the trial transcript. Claimant purportedly admitted into evidence, as Exhibit 12, the claim he filed with the facility. However, Exhibit 12 is dated a year prior to the date of this incident[5]
and is not relevant to this claim. The State moved to dismiss for failure to prove a prima facie case, specifically that there was no proof of Claimant's loss or that the State was responsible for the loss. That motion is now GRANTED, and the request for damages for March 20, 2003 is DISMISSED.
June 1, 2003, Lost Property
Claimant testified that on June 1, 2003, he was being transferred from Gouverneur Correctional Facility to Auburn Correctional Facility. His property was packed and he was in the draft area when he saw his bag leaking. He had food and beverages packed in his property. Two soda cans were banged around and were leaking. He also said a jar of peanut butter and a container of rice were broken open. He believes his bags had been thrown around. Claimant sought $5.10 in damages.

Defendant moved to dismiss for Claimant's failure to exhaust his administrative remedies in accordance with Court of Claims Act § 10(9), and for failure to prove that Defendant was responsible for the damage to his property. Claimant produced a Department of Correctional Services inmate lost property claim form describing the items set forth in the claim filed with this Court, paragraph two, incidents (4) and (5), arising on June 1, 2003, at Gouverneur Correctional Facility and June 1 - 3, 2003, in transit between Gouverneur Correctional Facility and Auburn Correctional Facility.

That department claim form shows that as of the date this Court of Claims claim was filed, Claimant had not exhausted his administrative remedies as required as a condition precedent to bringing a claim in this Court pursuant to Court of Claims Act § 10(9). Claimant acknowledges that his administrative remedies were not exhausted until after he filed the claim in this Court for the last three incidents set forth in the claim. Based upon that, the incidents described in the claim paragraph two, incidents (4), (5) and (6), are all DISMISSED without prejudice.

Accordingly, Claimant is hereby awarded damages in the amount of $31.30 plus appropriate interest from November 6, 2002 to May 6, 2003, and then from July 9, 2003 to the date of this Decision and thereafter to the date of the entry of Judgment.

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.

March 22, 2005
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims




[1]Exhibit 8.
[2]Exhibit 4.
[3]Exhibits 6 and 7.
[4]All quotes are from the Court recording of this trial unless otherwise noted.
[5]Exhibit 12, is an inmate claim form dated March 21, 2002 at Altona Correctional Facility.