PALACIO v. STATE OF NEW YORK, #2005-018-451, Claim No. 107992
Claimant awarded $31.30 for the improper mailing of a prisoner's legal
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
DIANE L. FITZPATRICK
HERIBERTO PALACIOPro Se
Attorney General of the State of New York
By: HEATHER R. RUBINSTEIN, ESQUIREAssistant Attorney General
March 22, 2005
See also (multicaptioned
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
October 11, 2002, Unnecessary Postal
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
and he received an explanation from Acting Superintendent
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
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
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
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
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
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
HON. DIANE L. FITZPATRICK
Judge of the Court of Claims
All quotes are from the Court recording of
this trial unless otherwise noted.
Exhibit 12, is an inmate claim form dated
March 21, 2002
at Altona Correctional Facility.