Michael Ramsey alleges that the defendant’s agents wrongfully destroyed
his personal property while he was incarcerated at Green Haven Correctional
Facility (hereinafter Green Haven) on July 20, 2003. Specifically, he states
that correction personnel conducted a cell search on that day and seized certain
property as contraband, and then directed its destruction.
At trial Mr. Ramsey testified that he was issued a misbehavior report after the
cell search, charging him with violation of certain facility rules, namely,
“altered item.” [See
Exhibit 5; see also
§270.2 (113.15;113.11)]. A tier II disciplinary hearing was held relative
to the charges. At the conclusion of the disciplinary hearing, the hearing
officer directed that claimant’s property be “destroyed.”
The items confiscated and then destroyed, and the respective values Mr. Ramsey
placed upon them included: one (1) Optimus Walkman ($53.00), one (1) West Bend
hot pot ($15.00), one (1) GE Super Radio ($42.00), six (6) cassette tapes
($120.00) and two (2) DC adapters ($18.00). The total loss he claimed was
Claimant submitted several documents in support of his claim. A local permit
issued on December 11, 2002 allows his possession of a West Bend hot pot at
Green Haven provided the permit terms are not violated. [Exhibit 1]. An undated
contraband receipt lists the items seized, and indicates the various reasons why
the items were confiscated. [See Exhibit 2]. The contraband receipt
provides that with respect to the Optimus Walkman, the claimant had “no
permit;” with respect to the hot pot, it was broken and had the
“wrong DIN;” with respect to the GE Super Radio, the
“DIN” number had been “altered,” and there was no
permit; the tapes, too, had been “altered;” and there was
“no permit” for the DC Adapters. [Id.].
By way of showing the “procedures that should [be] followed” when
the facility is going to destroy personal property, Mr. Ramsey submitted a
series of unrelated memoranda from Clinton Correctional Facility showing, he
said, how the facility is “supposed to give you the opportunity to send it
home, donate it, destroy it . . . In this case they didn’t do that they
just destroyed it and didn’t follow the process.” [Exhibits 3 and
4]. Claimant submitted the transcript of the disciplinary hearing as well.
Claimant argued that the officer who searched his cell simply looked at the
cassette tapes - he did not listen to them - when he determined to seize them
because “he believed” they had been “recorded over.”
The “hearing officer,” Mr. Ramsey said, “should have listened
to them but he didn’t.” The claimant said that simply because the
numbers on the “super radio had been changed, which [claimant] admitted
to, [the hearing officer] took for granted that all items had been altered or
unauthorized , and found [claimant] guilty and promptly disposed of [his]
property without [his] knowing or [his] authorization.”
On cross-examination claimant conceded that he had been found guilty on both
the charges during the disciplinary proceeding. He did not concede that each
item on the contraband receipt was found to be contraband. When asked whether
there was a permit for the Walkman, he admitted that he did not have one. With
regard to the hot pot, when asked about the different DIN number noted on the
hot pot - not his own - versus the correct DIN number noted on the permit,
claimant explained that when he first arrived at the facility his property and
that of another inmate were all “mixed up,” a fact he brought up
during his disciplinary hearing. “Everybody” he said “has
West Bend hot pots.” He went on to say that upon his arrival, when the
permit for the hot pot was being written out, the officer just wrote
Claimant’s DIN number on it, presuming that the hot pot that was in
Claimant’s possession was in fact his. As the result of the mix-up,
however, the pot in his possession belonged to the other inmate and had that
inmate’s DIN number on it; thus the permit issued to Claimant contained a
DIN number different from the one on the pot that was in his possession at the
Asked whether the finding of guilty at the hearing was to possession of the
altered items, Claimant said that “no, that was not the finding.”
He said that the hearing officer did not specify which items were
“altered” and which were part of an “unauthorized
exchange.” The claimant repeatedly said that the indication in the
determination that the tapes “appeared” altered for example, does
not mean that they were indeed altered. Claimant disagreed with the statement
issued by defendant’s counsel that the hearing officer’s
determination meant that the officer necessarily found that the items seized had
the status of contraband, and disagreed with counsel’s suggestion that as
contraband, they may be ordered destroyed without alternate disposition of the
property being offered.
Mr. Ramsey confirmed that the administrative appeal affirmed the hearing
officer’s finding, and that an Article 78 proceeding he had filed was
Claimant referred to “Directive 4932 Chapter 5 standards of
behavior” concerning the “confiscation of property and authorized
penalties including disposition of property after hearing.” He argued
that the state is not authorized “to simply destroy it” according to
its own regulations, but must provide an opportunity “to donate it or send
it home. This they did not do.” While it is true, he said, that in order
to be found guilty of a disciplinary violation such as this one “all that
they need to find is that one of the items was altered, or one of the items was
unauthorized, they still cannot just destroy the property seized.” To
establish proof of misbehavior “all you need is some evidence - it could
have been one item or all of them - because the disposition can stand with just
one.” Thus, he urged, when the appeal affirmed the finding of guilt, the
finding and affirmance could have been based alone on his admission to the
hearing officer concerning the alteration of the GE Super Radio.
In reviewing the disciplinary hearing transcript and the hearing disposition
form signed by the claimant, it is noted that the indication in the transcript
is that the property would “remain confiscated and to be disposed of . .
.” [Exhibit 6], and in the disposition form, the mostly illegible
disposition concerning the property is that it be “confiscated and
dispose[d] of all . . . (illegible).” [Exhibit 5]. The contraband
receipt is not filled out in the area where the “Disposition Of Items
Listed” would be noted, nor is there a signature other than that of the
correction officer who seized the property and wrote out the misbehavior report,
although the form provides for a place for the “Signature Of Personnel
Receiving Items.” [Exhibit 2].
No other witnesses testified and no other evidence was submitted.
This claim is essentially one alleging negligence by the alleged bailee in a
bailment allegedly created between Defendant and Claimant by delivery - or in
this case seizure - of Claimant’s personal property into the custody of
Defendant’s employees. See generally Claflin v Meyer, 75 NY
260 (1878); Ahlers v State of New York, (Claim No. 82543, Corbett, P.J.,
December 23, 1991). The State has a duty generally to secure an inmate’s
personal property. Foy v State of New York, 182 AD2d 670, 671 (2d Dept
1992); Pollard v State of New York, 173 AD2d 906 (3d Dept 1991). A
delivery of property to the bailee, and the latter’s failure to return it,
would satisfy the burden of establishing a prima facie case of negligence.
Generally, when an inmate is found in possession of “surplus or
disallowed property”, he is given the option of having the property
destroyed, donated, picked up by a visitor within a certain time frame or mailed
to another location at his expense.
the procedure described in facility regulations and also set forth in one of the
New York State Department of Correctional Services [hereinafter DOCS] Directives
available to the public at its website.
is also the procedure claimant described, and referenced by his submission of
the sample forms from the other correctional facility, including the Form 2068
“Authorization for Disposal of Personal Property” that gives the
inmate the options for disposal. [See
Exhibits 3 and 4].
Different considerations may obtain, however, when property is seized as
contraband and a misbehavior report alleging the inmate’s unauthorized
possession of contraband items is issued triggering the disciplinary process.
[See 7 NYCRR §253.1 et seq (for Tier II disciplinary
proceedings); 254.1 et seq (for Tier III disciplinary proceedings)].
There, the hearing officer determines what will happen with the property. It
may well be an option, as claimant argued, that the property be disposed of with
the same options when its confiscation and proposed disposal are part of the
disciplinary disposition. Or not. It is not clear from this record or from the
regulations cited above. Certainly, an authorized disposition under the Tier
III proceeding provisions indicates that if the confiscated property is
“money confiscated as contraband” it may be
“forfeited.” See 7 NYCRR §254.7 (a)(1)(vi). The only
evidence presented was claimant’s testimony regarding DOCS Directive 4932
- not available to the public - that he said sets forth what dispositions of
property are allowed after a hearing, and includes the provisions concerning
alternative disposal of the property. Although defendant did not cite to any
particular provision concerning what effect property’s designation as
contraband will have on an inmate’s ability to control its destiny, some
research indicates that as “contraband” that an inmate is not
allowed to possess, the inmate may not be entitled to compensation for its
destruction in any event because his initial possession is not authorized.
See Patterson v State of New York, UID #2000-029-020, Claim No.
94538 (September 26, 2000, Mignano, J.); Barrett v State of New York,
UID#2000-001-036, Claim No. None, Motion No. M-60959 (June 30, 2000, Read,
However, it is ultimately Claimant’s burden to establish entitlement to
the relief requested. In keeping with the requirement of establishing his claim
by a preponderance of the credible evidence, in this court’s view more
than continued declaration that the options were not presented is called for.
Even assuming that the disposal options were not presented, and that such
options are afforded an inmate after a disciplinary process was followed,
claimant has not established that he either had a present ability then to
actually mail the property at his own expense or that he could have arranged for
a visitor to pick it up. See Barrett v State of New York,
supra. The end result would be the same: donation or destruction, not
compensable under these circumstances. [Id.].
Accordingly, claimant has failed to establish entitlement to relief, and claim
number 109141 is in all respects dismissed.
Let judgment be entered accordingly.