New York State Court of Claims

New York State Court of Claims

WYATT v. THE STATE OF NEW YORK, #2007-030-047, Claim No. 112547


Synopsis


Pro se inmate’s bailment claim dismissed. Claimant did not establish his initial possession of the property prior to his removal from his cell to SHU, or any negligence on the part of the correctional facility, he has failed to establish elements of bailment claim by a preponderance of the evidence.

Case Information

UID:
2007-030-047
Claimant(s):
TARIQ A. WYATT
Claimant short name:
WYATT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112547
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
TARIQ A. WYATT, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Tariq Wyatt alleges in Claim number 112547 that defendant’s agents negligently lost his property in or about May 2006 during his transfer within Sing Sing Correctional Facility to the Special Housing Unit [SHU] and thereafter within the same facility from one gallery to the next. Trial of the matter was held on October 19, 2007.

Mr. Wyatt testified that during these moves from “J-gallery 32-cell”[1] to the SHU, correction officers packed up his property outside of his presence. When he “signed for the property two days later,” he noticed some things were missing and asked for a claim form. Claimant filed his claim [Exhibit 1] and also filed grievances and wrote to the State Commissioner. [Exhibits 2 and 3]. He claimed an amount of $25,000.00 because he is “mentally ill” and these situations, among others, caused him to “inflict self harm.”

More specifically, he testified that the property was packed on May 19, 2006 by Officer Lerouge. On May 21, he was called down to review the inventory and “forced to sign” the form although he noticed the property was missing. “Sergeant Kelly wrote a letter,” Claimant said, claiming that the sergeant had inventoried the property, and that the items listed as missing by claimant were still in his possession. Claimant testified that “Sergeant Kelly lied.”

Items claimed to be missing are listed in the facility claim, and claimant acknowledged that many items had only sentimental value. [Exhibit 1]. Claimant testified that the facility claim list contains what he is seeking reimbursement for in this court. He testified that he was missing two (2) personal net bags that he valued at $2.00 each, personal and legal letters, medication, pictures, deodorant and a toothbrush case all of which are not given values on the form; and three (3) packs of tobacco at $.77 each; two (2) lighters at $.50 each; fifteen (15) $.39 stamps; nine (9) $.03 stamps; sixty (60) $.01 stamps; and petroleum jelly worth $.72. Claimant said there were other things, including a facility net bag and a facility razor, but he could not really remember what was missing. He also explained that he “tied things up in one net bag” and then put the bag in another net bag, for fear that his property would be taken. Anyone looking at the property would think it was only one net bag. There were “three (3) bags in one” as he recalled. Officer Lerouge packed all the property in one bag, but when it came time to conduct the inventory there were items missing.

The grievance was accepted to the extent that the matter was investigated with regard to claimant’s assertions that personnel were lying about what was done with his property, and after investigation they found that Mr. Wyatt was present during the inspection of his property - although there is no requirement that he be present - and that at the time claimant was given a facility claim form and instructions. [See Exhibit 2]. More correspondence between claimant and the property claims investigator, Correction Officer Muller, and correspondence related to the grievance was submitted in evidence, some of it duplicating documents annexed to other exhibits. [See Exhibit 3].

From the SHU Property Process form “it can be seen that five bags were packed up,” claimant said. [Exhibit 5]. “On the I-64 only three bags are noted.” [Ibid.]. Claimant had some receipts, and some records of commissary purchases that might have correlated somewhat with the receipts and the items claimed, had he given testimony about it. [Exhibit 4].

On cross-examination he confirmed that he was packed up on May 19, 2006 by Officer Lerouge outside of his presence. He did not view the packing up by Officer Lerouge, and next saw the property on May 21, 2006 when the property was to be inventoried.

Mr. Wyatt acknowledged that after he filed the inmate claim form, he was asked to provide receipts and other paperwork to establish a claim of ownership, the names of employees that he notified, and a copy of any I-64 form, in a memorandum dated July 24, 2006 from C.O. L. Muller, Inmate Claims Investigator. [Exhibit 1]. He explained that he wrote back to the investigator on August 3, 2006 explaining that he would need to get “into my personal property” to find any receipts, and saying that “I believe that commissary may have copies of my receipts, and that the property clerk may be able to obtain copies of I-64.” [See Exhibit 1]. The inmate personal property claim was denied in a memorandum from Correction Officer Muller dated September 13, 2006. [See Exhibit 3]. Claimant acknowledged he had not provided the receipts requested by Correction Officer Muller in July 2006.

The court’s review of the exhibits show that on September 28, 2006 - after the facility claim was denied - claimant’s FOIL request to obtain copies of receipts or commissary records was acknowledged as received. [Exhibit 4]. The form indicates he had requested copies of an I-64 form and commissary receipts for January through June 2006. [Ibid.]. The October 30, 2006 response from the facility indicates that copies of his “. . . I-64 from Clinton and Fishkill . . . [and] commissary receipts . . . for April, June and July . . . ” were enclosed. [Ibid.].

Officer Lerouge testified briefly. On May 19, 2006 he recalled being assigned to A-Block, and the direction that he was to pack up inmate Wyatt’s bag. By way of explaining the process, he said that “using clear plastic bags, the property in the cell is itemized, and tagged.” He recalled packing one net bag that contained letters. He does not recall there being any other net bags. He wrote a memorandum to the officer investigating the claim at the time saying the same thing. [Exhibit 1]. The cell was then empty of claimant’s belongings. He also recalled the claimant asking him who packed his property and telling claimant that he had, and that everything from the cell went in as far as he knew.

Asked more specifically about the procedure upon pack up, Officer Lerouge explained that everything in the cell is placed in the bag and taken down to the office of the Officer in Charge [OIC], and then brought to the SHU where “everything is opened up and I-64’d by an officer.” Only correction officers handle the property. No other inmates touch the property. Although there are occasions when the inmate himself will pack up his property, this was not one of them.

When the officer first clears out the cell - as did Officer Lerouge - no inventory is taken. The bags used are clear plastic bags. At SHU it is repacked “neatly.” There could be a different number of bags once the property is inventoried and packed neatly.

On cross-examination, Officer Lerouge said he did not open the net bag he found in the cell. It was tied up, he did not know what was in the bag. He agreed that he could not say whether letters were the only thing in the bag, although that is what it looked like to him.

On redirect examination, he said he did not remember seeing any legal documents per se, only envelopes lying in the bag.

He also confirmed that there are different size bags. The bag he used was “probably a couple of feet by a couple of feet.”

It is not clear from a review of all the documents submitted whether claimant ever appealed the denial of his facility claim, or the grievances he filed about the purported failures to properly investigate the property loss.

No other witnesses testified, and no other evidence was submitted.

This claim is one alleging negligence by the alleged bailee in a bailment created between defendant and claimant by delivery of claimant’s personal property into the custody of Defendant’s employees. See generally Claflin v Meyer, 75 NY 260 (1878). The State has a duty to secure an inmate’s personal property. 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, satisfies Claimant’s burden of establishing a prima facie case of negligence. The bailee is then required to come forward with evidence to “overcome the presumption.” Weinberg v D-M Rest. Corp., 60 AD2d 550 (1st Dept 1977). “Where a bailment is created, a showing that the . . . [property was] delivered to the bailee and returned in a damaged condition establishes a prima facie case of negligence and the burden shifts to the bailee to demonstrate that it exercised ordinary care . . . (citation omitted)” Board of Educ. of Ellenville Cent. School v Herb’s Dodge Sales & Serv., 79 AD2d 1049, 1050 (3d Dept 1981).

With respect to value, Claimant must satisfy the court of the fair market value of the items in question. Phillips v Catania, 155 AD2d 866 (4th Dept 1989); Schaffner v Pierce, 75 Misc 2d 21 (New York Dist Ct 1973). Receipts are the best evidence of fair market value, although uncontradicted testimony concerning replacement value may also be acceptable. Personally meaningful items, such as photographs, have no fair market value beyond the actual cost. Similarly, emotional distress occasioned by the loss is not compensable.

In this case, claimant has not established all the elements of a bailment claim. He has not established his own possession of the property, delivery, negligence or value. He did not persuasively link, for example, through testimony or other evidence, the items he listed as missing to whatever commissary receipts he did obtain. Claimant’s theory appears to be that the property claimed either went missing between the time it was packed up in his cell by Officer Lerouge, to the time it was inventoried on the I-64 inventory form, or after said inventory. Officer Lerouge’s testimony was credible that he packed all of the contents of the cell. Thereafter, the credible evidence establishes that these items either were not possessed initially, or were later found as determined by the several investigations and reviews initiated contemporaneously, and somewhat confusingly, by the claimant.

Additionally, claimant does not appear to have exhausted his administrative remedies [see Court of Claims Act §10(9); 7 NYCRR Part 1700], an issue raised in the defendant’s sixth affirmative defense, although it was not argued at trial.

Accordingly, because claimant did not establish his initial possession of the property prior to his removal - a necessary element to establish his cause of action - or any negligence on the part of the correctional facility, he has failed to establish by a preponderance of the evidence entitlement to the relief requested, and Claim Number 112547 is in all respects dismissed.

Let judgment be entered accordingly.

February 14, 2008
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. All quotations are to trial notes or audio recordings unless otherwise indicated.