RAMSEY v. STATE OF NEW YORK, #2009-039-116, Claim No. 111307
Following a trial, the Court concludes that sufficient proof was offered to
establish the creation of a bailment with respect to various items and,
accordingly, claimant is awarded damages with respect to each item.
MICHAEL F. RAMSEY
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
James H. Ferreira
Michael F. Ramsey, pro se
Hon. Andrew M. Cuomo
Attorney General of the
State of New York
RizzoAssistant Attorney General
March 6, 2009
See also (multicaptioned
Claimant Michael F. Ramsey, an inmate at Clinton Correctional Facility,
proceeding pro se, filed a claim asserting a bailment cause of action for
property allegedly taken, lost or destroyed on May 22, 2005 during a frisk of
his person and a search of his cell by correction officers. Claimant
specifically seeks damages in the amount of $179.72 arising from the loss of:
one bucket ($6.00); three decks of playing cards ($2.70); one raincoat ($11.00);
one Army coat ($59.00); eleven packs of cigarettes ($47.74) and 144 thirty-seven
cent postage stamps ($53.28). Defendant answered and asserted various defenses.
A trial in this matter was conducted on October 23, 2008, via video conferencing
technology, with both claimant and defendant present at Clinton Correctional
Facility and the Court presiding from a facility in Saratoga Springs, New York.
Claimant testified on his own behalf and relied on various documents to support
his case. Defendant called two witnesses. Numerous documents were received
Claimant testified that on the morning of May 22, 2005, while on his way from
his cell in H Block to the recreation yard, he was pulled from a line and
stopped by Officer Mahuta who searched him and confiscated some postage stamps
and the Army coat he was wearing. Another officer then searched
claimant’s net bag and his coat. Claimant was then taken to the facility
hospital, where he was strip-searched and transferred to a cell in D Block,
which is a keeplock housing unit. While claimant was confined to D Block,
correction officers searched his original cell. Approximately two hours later,
officers brought claimant’s property to his new D Block cell, and he
discovered that his bucket was severely damaged and that certain items were
missing, including additional postage stamps, packs of cigarettes, his Army
coat, a raincoat and three decks of cards. He filed institutional claims and
subsequently filed this claim.
Claimant relied on various documents, including four I-64 sheets received into
evidence as exhibit 1, which show the type and quantity of an inmate’s
personal property transferred from one location to another. The I-64 sheet dated
May 22, 2005 concerns the transfer of claimant’s belongings after he was
stopped and frisked. The May 2005 sheet indicates that one deck of playing
cards was transferred, but does not contain any references to cigarette packs,
the raincoat or the Army coat. Notably, the Army coat is listed on a previous
I-64 sheet dated February 25, 2004. Claimant also offered the transcript from a
May 27, 2005 administrative hearing, received into evidence as exhibit 2,
concerning various charges brought against him arising from the incident on May
22, 2005. The charges related to smuggling, possession of stamps in excess of
$20.00 and possession of gambling paraphernalia. Claimant pled guilty to four
of the charges and was found guilty by the hearing officer of all six charges.
Upon questioning by the Court, claimant indicated that his bucket was returned
to him, but was “crushed” and “smashed down in the bottom of
the bag”. Claimant stated that his Army coat, three decks of playing
cards and eleven packs of cigarettes were not returned to him, and that none of
his stamps were given back. He did not have any commissary receipts to
establish ownership and value for any of the items that he alleged were missing.
Claimant stated that he arrived at Clinton from Southport during February 2005,
and that the I-64 sheets show that his raincoat, Army coat and playing cards
were transferred from Southport to Clinton.
During cross-examination, claimant stated that Mahuta searched him in the North
Yard, and that stamps and playing cards were removed from his person. About an
hour later, more stamps were taken from his cell along with allegedly altered
playing cards. Claimant contends that a total of approximately 144 stamps, with
a value of $53.28, were confiscated, and acknowledged that he was aware of the
facility’s rule prohibiting an inmate from possessing stamps in excess of
$20.00. Two misbehavior reports were written up and, following a tier hearing,
a DOCS hearing officer found claimant guilty of all six charges.
Claimant’s property was returned to him in D Block, and he signed an I-64
sheet which indicated only that his bucket was missing.
Claimant stated that his property was returned to him in plastic burlap sacks.
The sacks were then emptied on the floor in front of his new cell and he was
asked to sign the I-64 form. He believed that his bucket was not there when he
signed the I-64 sheet. He then pulled the bags into his new cell. Later, after
having time to sort through his belongings, he realized that his bucket was not
missing, but that it had been damaged during the transfer. He also realized
that other items were missing and filed institutional claims to recoup the value
of these missing items.
Officer Mahuta testified that he was on duty at Clinton on May 22, 2005, and
that he frisked claimant as he was proceeding to the recreation yard. He found
five small packets of postage stamps in the front of claimant’s pants. He
explained that stamps are used as money and are not allowed in the North Yard.
Claimant was also carrying a net bag that contained altered playing cards, which
are used as gambling chips, and an altered raincoat. Mahuta subsequently
searched claimant’s cell and confiscated 55 postage stamps, tracking
sheets and other items not the subject of this claim. These items are listed on
a contraband receipt received into evidence as exhibit 3. He recalled opening a
pack of cigarettes that appeared to be altered, but did not recall removing any
cigarettes or a raincoat from claimant’s cell. Mahuta prepared inmate
misbehavior reports, received into evidence as exhibits A and B, consistent with
his trial testimony. He also prepared a memorandum describing his frisk and
cell search, received into evidence as exhibit C, in response to a complaint by
claimant. During cross-examination, he stated that at least one pack of
cigarettes was in claimant’s H Block cell, but could not recall how many
packs of cigarettes were there. The raincoat was returned to the cell after
claimant was frisked.
Officer Bezio testified that he was a correction officer at Clinton on May 22,
2005. Bezio stated that he and another officer packed claimant’s
belongings for transfer from H Block to D Block on that date. Claimant’s
possessions were recorded on an I-64 sheet, packed and then transferred to the
inmate’s new cell. Claimant reviewed the property sheet, signed the I-64
form and told Bezio that his bucket was missing. No other complaints were made.
Bezio also observed in the cell a large clear plastic bag, ordinarily used to
wrap a mattress, that had been altered and made into a raincoat. This bag was
confiscated and destroyed, but claimant was not disciplined. Bezio could not
point to any written procedure or rule regarding the prohibition against
possession of such an item; he described the prohibition as a “facility
procedure” and a “practice procedure.” He stated that all
other items present in claimant’s cell were inventoried on the I-64 sheet.
He did not recall observing or removing any tobacco products from
claimant’s cell. During cross-examination, Bezio stated that large bags
with holes punched through them should not be admitted or checked into a
correctional facility when property is transferred. He acknowledged that in
such an altered fashion, the property would be confiscated. He stated that he
packed four bags of items from claimant’s cell and brought them to
claimant’s new cell. The bags were placed in claimant’s new cell,
claimant inspected his property and then signed the I-64 form. He did not
recall how long that process took. The packing of claimant’s property in
his H Block cell occurred outside of claimant’s presence. He could not
recall if any of the three jackets listed as summer jackets on the May 22, 2005
I-64 transfer sheet were Army coats.
It is well settled that the State has a duty to secure the property of an
inmate, and that a claim in the nature of bailment may be brought against the
State (see Pollard v State of New York, 173 AD2d 906, 907 ).
A bailment is created when personal property of one person (the bailor) is
delivered into the possession of another (the bailee) with the understanding,
either express or implied, that the property will be redelivered to the owner in
the same condition (see Clafin v Meyer, 75 NY 260 ).
“[W]hether the relationship is that of bailor and bailee turns on whether
there is exclusive possession, control and dominion over the property”
(see Gagne v State of New York, 14 Misc3d 1214(A) ).
“Where a bailment is created, a showing that the [items] were 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” (see Board of Educ. of Ellenville Cent. School v
Herb’s Dodge Sales & Serv., 79 AD2d 1049, 1050 ). The
measure of recovery when bailed property is not produced upon demand is the fair
market value of the property, namely, the value of the original price less a
reasonable rate of depreciation. (see Phillips v Catania, 155
AD2d 866 ; see also Matter of Terranova v State of New
York, 111 Misc 2d 1089, 1097 [“the measure of damages in a
bailment of personal property is the difference in the fair market value thereof
in its condition as delivered (to the bailee) versus its condition as
Upon listening to the trial testimony, assessing the demeanor and credibility
of the witnesses, and reviewing the exhibits received into evidence, the Court
finds that a bailment was created with respect to certain items, and that
claimant is entitled to some money damages. Notably, defendant does not appear
to contest the values placed on any of the items at issue, instead confining its
argument to the lack of proof offered in support of a bailment. The Court,
however, has reduced the amounts sought based upon depreciation and the evidence
received at trial.
Regarding the bucket, the record reflects that claimant owned a bucket and that
it was damaged either when it was packed or during its transfer from
claimant’s cell in H Block to claimant’s new cell in D Block.
Although the testimony regarding the bucket’s demise comes primarily from
claimant and is, by its nature, self-serving, the condition of the bucket is not
disputed by defendant. Claimant lists the bucket’s value at six dollars
and, given its nominal value, the Court finds that sum to be fair and proper.
Accordingly, the Court awards the sum of $6.00 to claimant for damage to his
bucket. As for the decks of cards, the I-64 sheet dated May 22, 2005 shows that
one deck of cards was transferred from claimant’s cell. At trial,
claimant testified that no cards were returned to him. The Court finds credible
claimant’s testimony concerning the circumstances surrounding his ability
to adequately sift through the four bags and examine his belongings while in
Bezio’s presence prior to signing the I-64 sheet. Claimant lists the
value of his three decks of cards at $2.70. The Court finds that, at the very
least, one deck of claimant’s playing cards was missing from his
belongings and that the value claimant attributes to the decks of cards is fair
and reasonable. Thus, the Court awards damages to claimant for the loss of one
deck of cards in the amount of $0.90.
Claimant also seeks $47.74 in damages arising from the alleged loss of eleven
packs of cigarettes. While there is no proof that eleven packs were lost,
missing or destroyed, Mahuta testified that he opened and inspected one pack of
cigarettes in claimant’s H Block cell. Moreover, claimant testified that
no packs of cigarettes were returned to him. Therefore, the Court awards
damages to claimant for the loss of one pack of cigarettes in the amount of
With respect to the postage stamps, it appears that 144 thirty-seven cent
postage stamps, with a total value of $53.28, were confiscated from claimant
including eighty-nine stamps from his person and fifty-five stamps from his H
Block cell. The undisputed proof before the Court is that possession of postage
stamps with a value in excess of $20.00 is prohibited pursuant to an inmate rule
book. However, the record also reveals that no stamps were ever returned to
claimant. Since claimant was allowed to possess $20.00 worth of postage stamps,
claimant is entitled to damages in the amount of $20.00 for the loss of the
stamps removed from his cell.
As for the Army coat, the Court credits claimant’s testimony that this
coat, which he was apparently wearing when he was stopped and frisked en route
to the recreation yard, was removed from his person and not returned to him.
Although the May 22, 2005 I-64 sheet does not reflect that an Army coat was
transferred from claimant’s H Block cell, there is some evidence that
claimant owned an Army coat as indicated on a previous I-64 sheet dated February
25, 2004. In the absence of receipts or other indicia of value, and allowing
for a depreciation in value of at least one year in wear, the Court awards
damages to claimant for the loss of his Army coat of $29.50.
Finally, the Court concludes that sufficient proof was offered to establish the
creation of a bailment with respect to the raincoat claimant was carrying in his
net bag and that the raincoat was not returned to claimant. Initially, the
Court notes that the I-64 sheets dated prior to May 22, 2005 reference a
raincoat (see Exhibit 1). While the Court heard testimony from the
officers that claimant’s raincoat was actually an altered plastic bag, and
was therefore prohibited by an unspecified DOCS policy, the May 22, 2005
misbehavior reports prepared by Mahuta and the May 22, 2005 contraband receipt
listing items seized from claimant’s H Block cell do not mention the
confiscation of an altered raincoat (see Exhibits 3, A & B). It was
not until several days after the incident that correction officers referred to
claimant’s raincoat as nothing more than a large plastic mattress bag in
memoranda written in response to claimant’s grievance (see Exhibits
C & E). Moreover, the Court is persuaded by claimant’s argument that
it is unlikely that a correctional facility would transfer a raincoat that was
purportedly an altered garbage bag, in violation of DOCS policy, or that the
facility receiving the altered garbage bag, would accept the item. The earliest
I-64 sheet indicating that claimant owned a raincoat is dated January 22, 2004.
Absent receipts or other indicia of value, and allowing for a depreciation in
value, the Court sets damages for claimant’s missing raincoat at $14.75.
Accordingly, claimant is awarded damages in the amount of $75.49, plus
appropriate interest from May 22, 2005. Any and all motions on which the Court
may have previously reserved, or which were not previously determined, are
hereby denied. To the extent claimant has paid a filing fee, it may be
recovered pursuant to Court of Claims Act § 11-a (2).
The Clerk of the Court is directed to enter judgment accordingly.
Albany, New York
HON. JAMES H. FERREIRA
Judge of the Court of Claims