New York State Court of Claims

New York State Court of Claims

GRAHAM v. THE STATE OF NEW YORK, #2009-015-519, Claim No. 111274


Pro se inmate claim alleging various incidents of retaliatory conduct by correction officer was dismissed following trial.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
Frank Graham, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Stephen J. Maher, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 7, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


This pro se inmate claim proceeded to trial on April 30, 2009. Claimant alleges that while incarcerated at Mt. McGregor Correctional Facility in August 2004 Correction Officer Pierce intentionally destroyed his family photographs and issued unfounded misbehavior reports. Claimant alleges that this officer acted in retaliation for the claimant's rejection of a prior sexual advance, various grievances the claimant had filed against this officer and his testimony at a hearing on behalf of another inmate against Correction Officer Pierce.

At trial claimant testified that Correction Officer Pierce planted a weapon in another inmate's cell and observed claimant waiting to testify at a disciplinary hearing on behalf of the inmate. The next day, Correction Officer Pierce searched claimant's cell and confiscated his family photographs. Claimant complained regarding the confiscation of his photographs and Correction Officer Pierce issued two misbehavior reports shortly thereafter.

On cross-examination the claimant testified that at the time of his transfer from Bare Hill Correctional Facility to Mt. McGregor Correctional Facility he possessed the photographs.

Exhibits 1 through 7 were received in evidence on the claimant's behalf. Exhibit 1 consists of an undated mail list with cell numbers.[1]

Exhibit 2 consists of correspondence from the claimant dated September 26, 2004, September 27, 2004, September 28, 2004, September 30, 2004 and October 8, 2004 regarding Correction Officer Pierce's alleged retaliatory conduct and the destruction of his photographs. Notably the only mention of a sexual advance by Correction Officer Pierce was in the correspondence dated September 30, 2004 and October 8, 2004.

Exhibit 3 is a response to the claimant's grievance. With respect to the claimant's allegation of a homosexual advance by Correction Officer Pierce, the response indicates that claimant admitted to the investigating officer that he "made it up". With respect to the claimant's accusations of retaliation by Correction Officer Pierce the response indicates that "[i]t appears this grievance is in retaliation for the Misbehavior Reports Officer Pierce wrote on the grievant."

Exhibit 4 is the inmate misbehavior report dated September 30, 2004 issued by Correction Officer Pierce in which the claimant was charged with creating a disturbance, harassment, and untidy cell or person. Following a Tier II disciplinary hearing claimant was found guilty of the charges. On appeal to the Superintendent the findings were modified to the extent of dismissing the charge regarding the untidy cell. Also included as part of Exhibit 4 is a misbehavior report dated October 7, 2004 issued by Correction Officer Pierce in which claimant was again charged with harassment. Claimant was again found guilty of the charge.

Exhibit 5 is a Personal Property Transferred form dated June 16, 2004 reflecting claimant's personal property which was transferred from Bare Hill Correctional Facility to Mt. McGregor Correctional Facility. Photographs are not among the items of personal property listed.[2]

Defendant called Sergeant David St. Louis to testify at trial. Sergeant St. Louis has been employed at Mt. McGregor Correctional Facility for 25 years and was assigned to investigate the claimant's grievance regarding the alleged retaliatory conduct by Correction Officer Pierce. The witness testified that the claimant admitted that he "made up" the story about Correction Officer Pierce making a sexual advance toward him. Regarding the claimant's photographs, the witness testified that there is no proof that the claimant possessed the photographs or that they were destroyed by Correction Officer Pierce. Received in Evidence as Exhibit A are the grievance documents filed by the claimant and the investigation conducted in response. Review of Exhibit A reveals that it was the conclusion of the investigating officers that the claimant's grievance lacked merit and was in retaliation for the issuance of misbehavior reports by Correction Officer Pierce.

On cross-examination the witness testified that Correction Officer Pierce denied the allegations claimant made against him in writing. He testified that he spoke with the claimant during the course of his investigation and the claimant indicated that there were no witnesses to Correction Officer Pierce taking his photographs. The witness testified that he did not interview the inmates in the cells adjoining the claimant's as the claimant did not list any witnesses in his grievance.

This concluded the trial.

As the trier of fact charged with assessing the credibility of the witnesses and evaluating the evidence, the Court finds that claimant failed to meet his burden of establishing by a preponderance of the credible evidence that Correction Officer Pierce destroyed his photographs or otherwise acted in a retaliatory manner. Other than the claimant's testimony, there is no evidence that Correction Officer Pierce confiscated or destroyed the claimant's family photographs or fabricated misbehavior reports. Indeed, claimant was found guilty of the charges filed against him with the exception of the charge relating to the untidy cell. Moreover, claimant's admission to Sergeant St. Louis that he fabricated the story regarding Correction Officer Pierce's sexual advance undermines his credibility. As there is no independent evidence of the conduct complained of, the Court finds the evidence presented at trial insufficient to support the allegations in the claim.

Accordingly, the claim is dismissed. Let judgment be entered accordingly.

July 7, 2009
Saratoga Springs, New York

Judge of the Court of Claims

[1]. A portion of the claim alleges that Correction Officer Pierce withheld his mail in retaliation for the grievances claimant filed against him.
[2]. Subsequent to trial, claimant provided chambers with two Personal Property Transferred forms which reflect the existence of photo albums and photo frames. These forms were not received in evidence at trial, however, and copies were not provided to defense counsel. In any event, these forms are of little or no probative value as they appear to relate to property transferred in 1998 or 1999, though the dates are difficult to decipher.