SHEPHERD v. THE STATE OF NEW YORK, #2007-044-001, Claim No. 109648
Claimant established bailment of property sent from Elmira Correctional
Facility directly to SHU storage at Upstate Correctional Facility and then
directly to Wende Correctional Facility, and recovered $398 for missing
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
CATHERINE C. SCHAEWE
EON SHEPHERD, pro se
HON. ANDREW CUOMO, ATTORNEY
GENERALBY: Geoffrey B. Rossi, Assistant Attorney General
January 8, 2007
See also (multicaptioned
Claimant, an inmate appearing pro se, alleges that defendant State of New
York (“Defendant”) negligently lost certain property belonging to
him during his transfers between various correctional facilities. A trial on
the matter was held on November 16, 2006, at Elmira Correctional Facility
At trial, claimant testified that he was
transferred from Elmira to Upstate Correctional Facility (“Upstate”)
on or about October 10, 2003. He packed six bags and a typewriter. Four bags
and the typewriter were allowed with him on the bus, pursuant to Department of
Correctional Services (“DOCS”) regulations, and the other two bags
were mailed. Two separate I-64 property inventory forms were filled out at
Elmira: one for the four bags and typewriter taken on the bus, and one for the
two bags which were mailed.
When claimant arrived at Upstate, he was
immediately placed in Special Housing Unit (“SHU”). Claimant
testified that inmates in SHU are allowed only a limited number of items in
their cells, and that the rest of each inmate's property is stored by the
facility. Claimant spent his entire stay at Upstate in SHU, until March 22,
2004, at which time he was transferred to Wende Correctional Facility
(“Wende”). Claimant’s testimony is supported by the I-64
which lists his property received from Elmira on October 16, 2003, and indicates
that it was stored by the facility (the document is stamped “SHU
STORAGE”). The same document indicates that all of the items listed as
received at Upstate were thereafter received at Wende on April 4, 2004.
Claimant signed the I-64 form on October 16, 2003 at Upstate, and also on April
4, 2004 at Wende. He commenced the administrative grievance process shortly
after he arrived at Wende. Notably, defendant waived any potential defense that
the claim was untimely filed and served by not pleading that as an affirmative
defense (Court of Claims Act § 11 [c]).
Claimant's initial contention
is that nine bags of his property were apparently transferred from Upstate to
Wende. Claimant argues that, since he came to Upstate with six bags, and was in
SHU without package privileges for his entire stay at Upstate, there is no way
he could have entered the facility with six bags and left with nine. He
contends that DOCS officials divided up his property into more bags than he came
with, and that he therefore had to pay extra postage fees for the bags that had
to be mailed.
Correction Officer Gerald Williams from Elmira testified on
behalf of the defendant. Williams' duties include packing inmates' property for
transfer to other facilities. Williams stated that the procedure when an inmate
is transferred from one facility to another, and goes directly into SHU, is for
the inmate to be allowed to remove from his bags whatever items he is permitted
to possess in SHU. The bags are then resealed and stored while the inmate
remains in SHU.
It appears from claimant's and Williams' testimony, as well
as an examination of the various I-64 forms, that claimant did arrive at Upstate
with six bags. He was allowed to remove the items he was permitted to have in
SHU, and then the six bags were resealed. When he left Upstate, the I-64 form
indicates that his possessions in his SHU cell were packed into three bags.
When combined with the six bags in SHU storage, claimant had a total of nine
bags. It appears that defendant appropriately followed its own regulations in
packing claimant's possessions.
Further, claimant provided no evidence whatever regarding any postal charges he
may have incurred, nor did he prove that the shipping costs for the five
were any different than shipping costs for three bags with the same number of
items, and presumably the same approximate weight. Accordingly, to the extent
that claimant may have a cause of action against defendant for unnecessarily
increasing his postage costs, such cause of action is dismissed.
next cause of action
seeks to recover for the following property that he discovered was missing when
he reached Wende:
Timberland boots ($ 49.99)
6 shirts ($ 299.00)
14 T shirts ($ 210.00)
7 boxer shorts ($ 50.00)
2 sweat shirts ($ 50.00)
2 sweaters ($ 95.00)
6 - $0.37 stamps ($ 2.22)
9 can food ($ 40.00)
1 box tea ($ 3.00)
3 bowls/lids ($ 3.00)
1 deodorant ($ 1.59)
2 shampoo ($ 12.22)
1 soap ($ 4.00)
shoe polish ($ 0.85)
1 mirror ($ 3.50)
1 hooded sweatshirt ($ 45.00)
1 Muslim oil ($ 10.00)
1 hair dressing ($ 4.80)
3 toothpaste ($ 4.50)
1 lamp ($ 5.00)
3 sheets, 2 pillow cases ($ 45.00)
13 books ($ 300.00)
3 legal books ($ 200.00)
6 magazines ($ 200.00)
2 dictionary ($ 80.00)
3 pray [sic] books ($ 150.00)
15 folders of legal documents ($1,000.00)
640 personal photographs ($5,000.00)
Claimant also asserts that
his radio and typewriter were damaged at some point in transit, with values
claimed of $49.99 and $250.00, respectively. Claimant seeks a total of
$8,168.66 for all these items.
Claimant's I-64 form documenting his
property sent from Elmira, when combined with the I-64 form that indicates
receipt of his property at both Upstate and Wende, clearly indicates that most,
if not all, of the items claimant alleges are missing were not received either
at Upstate or Wende. Specifically, the Upstate/Wende I-64 form indicates that
none of the above items
were received at Upstate/Wende, although all of them are documented as having
been sent out from Elmira.
A bailment is created when personal property is
delivered into the hands of another, who is then expected to return it in the
same condition on demand (Claflin v Meyer
, 75 NY 260, 262 ).
Defendant has an obligation to secure an inmate's personal property (Pollard
v State of New York
, 173 AD2d 906 ). Once a claimant meets the burden
of proving that his property was deposited with the defendant and that the
latter failed to return it, the burden shifts to the defendant to overcome the
presumption of its negligence (Weinberg v D-M Rest. Corp
., 60 AD2d 550
In this case, claimant has clearly met his burden of proof
regarding the missing items, showing that he duly delivered his property to
DOCS, and further showing that when he finally received his property back at
Wende, the items listed above were missing. The property, except for any items
allowed to be taken into SHU, was in DOCS custody and control for the entire
time between October 8 and 10, 2003, and April 4, 2004. Moreover, although
claimant was allowed to take some items into SHU, both claimant's testimony and
that of CO Williams indicates that the inventory on the I-64 form was made prior
to claimant's removal of those permitted items. Defendant introduced no
evidence whatsoever that overcame the presumption of its negligence with respect
to those items.
With regard to the allegedly broken radio and typewriter,
both items are listed on the pertinent I-64 as being received at Wende.
Claimant signed the I-64 indicating receipt of the items, with no indication
thereon that there was any damage to them. Claimant testified that he was not
given an opportunity to test the radio or typewriter when his items were
inventoried, and that he first discovered they were broken when he returned to
his cell. However, the Court notes that in his claim, claimant alleged that the
“radio knob was hanging loose, clearly broken. The frame of claimant's
type writer [sic] was broken ... the key board [sic] was broken as
Accepting these allegations as true, it is apparent that claimant would not have
had to test the radio or typewriter in order to determine they were broken, as
the damage would have been immediately apparent. In that case, claimant's
signature on the I-64 form without any indication that the items were broken is
fatal to this portion of his claim. The Court finds that claimant has not
established that the radio and typewriter were damaged while in defendant's
possession. Accordingly, this portion of claimant's claim is
The measure of recovery when bailed property is not produced upon
demand, or is irreparably damaged, is the fair market value of the property,
that is, the value of the original purchase price less a reasonable rate of
depreciation (Phillips v Catania
, 155 AD2d 866 ). Although
receipts are the best evidence of fair market value, a claimant's uncontradicted
testimony concerning replacement value may suffice (Watson v State of New
, Ct Cl, Sept. 21, 2006, Scuccimarra, J., Claim No. 108382 [UID #
2006-030-022]). Photographs and other such personally meaningful items have no
fair market value (see Benton v State of New York
, Ct Cl, July 8, 1999,
Collins, J., Claim No. 94337).
Due to claimant's lack of receipts, the
Court has determined damages based on the value of the missing or damaged
property from the credible evidence presented at trial. As claimant provided no
testimony regarding depreciation, the Court has assumed that the items were more
than one year old, and has applied depreciation to arrive at fair market value.
As noted above, the loss of the photographs is not compensable. Finally, to
recover damages for the legal documents, claimant must establish the identity
and value of those documents (Johnson v State of New York
, Ct Cl, Aug.
23, 2000, Mignano, J., Claim No. 93968 [UID # 2000-029-014]). Claimant failed
to show the identity and value of the legal documents, and further did not
establish the number of pages or replacement cost thereof (id.
Court thus declines to award damages for the legal documents.
awarded $398.00 in damages, plus statutory interest from April 4, 2004, which
the Court finds presumptively reasonable. To the extent that claimant has paid
a filing fee, it may be recovered pursuant to the provisions of Court of Claims
Act § 11-a (2).
Any and all motions on which the court may have
previously reserved or which were not previously determined, are hereby denied.
Let judgment be entered accordingly.
Binghamton, New York
HON. CATHERINE C. SCHAEWE
Judge of the
Court of Claims
. DOCS Directive #4917, “Transferring
Inmate Property”, was submitted as part of Exhibit 1.
. Nine bags less four bags sent via bus with
claimant equals five bags mailed.
. Although not denominated as separate causes
of action, claimant's complaints are the equivalent of two causes of action, for
all intents and purposes, and the Court has taken the liberty of addressing them
in that manner to avoid confusion.
. At this point, the Court is referring only
to those items claimed to be missing, rather than the radio and typewriter,
which claimant contends were damaged. The only items about which there may be
some question are the nine cans of food, one box of tea and three toothpastes.
Those items are listed at the bottom of the I-64 form. However, in its response
to claimant's discovery demands, defendant provided incomplete copies of most of
the I-64 forms, with the bottom portion - where those items would be listed -
missing. Accordingly, the Court has drawn a negative inference against
defendant, based on defendant's incomplete discovery response and claimant's
credible testimony, that those items were listed as having been sent from Elmira
and not received at Upstate/Wende.