Pro se inmate's claim alleging causes of action for bailment and harassment was dismissed following trial.
|Claimant short name:||LINER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Joshua Liner, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Paul Cagino, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 10, 2010|
|See also (multicaptioned case)|
Claimant, a pro se inmate, asserts causes of action for bailment and certain conduct he alleges constituted harassment while incarcerated at Great Meadow Correctional Facility (Great Meadow). The claim proceeded to trial on August 18, 2010.
The claim filed on May 31, 2007 contains three separately stated causes of action. The first cause of action was dismissed as untimely pursuant to a decision and order of the Honorable Jeremiah J. Moriarty (Joshua Liner v State of New York, Claim No. 113778, Motion No. M-73710, October 26, 2007, Moriarty, J.). The decision herein relates to the second and third causes of action alleging bailment and harassment.
The second cause of action seeks monetary damages for the loss of a television set, two sweaters, two shirts and one brown sweatshirt on February 5, 2007. At trial the claimant testified he was watching television in his cell on January 29, 2007 when he was accused of throwing liquid at a correction officer and removed to the Special Housing Unit (SHU). Claimant testified that his property remained in his cell at that time and that he first discovered the aforementioned property was missing when he received his property in the SHU seven days later on February 5, 2007. Although claimant testified at trial that he possessed copies of inmate personal property inventories taken at Attica, Greene and Livingston correctional facilities, those items were not produced at trial. In addition, claimant was unable to produce the personal property inventory completed upon his receipt at Great Meadow. Claimant did, however, produce a marking permit dated January 16, 2007 from Great Meadow Correctional Facility authorizing the permanent marking of claimant's "K-TV" (claimant's Exhibit 5) and a copy of the personal property inventory of claimant's property completed following his assignment to the Great Meadow SHU (claimant's Exhibit 4).
Claimant testified on cross-examination that he was taken from his cell and assigned to the SHU on January 29, 2007. His property allegedly remained in his cell from that date until February 5, 2007 when the personal property inventory was taken and claimant reviewed his property, which he alleges did not include the items specified in the claim. Claimant testified that he purchased the television for $50.00 approximately two weeks prior to his removal to the Great Meadow SHU. He testified without objection that the clothing items which he allegedly lost due to the negligence of the defendant were purchased by family members. Claimant testified that he was informed by his sister that the two missing sweaters were purchased for $36.00 each and the two missing shirts for $26.00 and $18.00. The brown sweatshirt was purchased for $14.00 in 2004.
Claimant's third cause of action relates to the placement of a Plexiglass shield on his cell, alleged food deprivation and the loss of a sweatshirt. Claimant testified at trial that after he was accused of throwing a liquid at a correction officer a Plexiglass shield was mounted on his cell door. Claimant was charged with assault on staff, commission of an unhygienic act, refusing a direct order and weapon possession as a result of the same incident.
A hearing was held beginning on February 2, 2007. The hearing concluded on February 14, 2007 and resulted in a finding of not guilty as to all charges except that relating to possession of a weapon (see defendant's Exhibit C).
As a result of the alleged throwing of a liquid at a correction officer, a cell shield was authorized to be installed on claimant's SHU cell door from January 29, 2007 through February 3, 2007 (see defendant's Exhibit C). The cell shield order was subsequently extended through March 4, 2007 (claimant's Exhibit 3). Claimant testified the cell shield made it difficult to breathe while in his cell and that the shield should have been removed upon dismissal of the charges related to the commission of an unhygienic act on February 14, 2007. According to the claimant the Plexiglass shield remained on the cell door until his transfer to Upstate Correctional Facility on March 13, 2007.
Claimant further testified that he was deprived of the opportunity to attend evening meal at Great Meadow for a period of four weeks. He also alleged that while at Upstate Correctional Facility DOCS personnel took possession of a green sweatshirt and failed to return it. Claimant testified that the sweatshirt was purchased in 2005 at a cost of $14.99.
On cross-examination the claimant denied that he ever committed an unhygienic act as alleged in the disciplinary proceedings brought against him. He acknowledged that he filed an administrative claim seeking compensation for the loss of a green sweatshirt. Although the claimant testified that he appealed denial of the claim, the inmate claim form submitted as part of Exhibit B does not indicate in the space provided therefor that the denial was appealed.
The Court will first address claimant's bailment cause of action. The State as a bailee of an inmate's personal property owes a common-law duty to secure property in its possession (Pollard v State of New York, 173 AD2d 906 ; see also 7 NYCRR Part 1700). A rebuttable presumption of negligence arises where it is established that property was delivered to the defendant with the understanding that it would be returned, and that the defendant failed to return the property or returned it in a damaged condition (Ramirez v City of White Plains, 35 AD3d 698 ; Feuer Hide & Skin Corp. v Kilmer, 81 AD2d 948 ; Weinberg v D-M Rest. Corp., 60 AD2d 550 ; see also Claflin v Meyer, 75 NY 260 ). Thereafter the burden of coming forward with evidence that the loss or destruction of the property was not its fault is upon the defendant (Feuer Hide & Skin Corp. v Kilmer, supra; Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049 ; Weinberg v D-M Rest. Corp., supra).
Claimant failed to establish that the property listed on the Inmate Claim form dated February 5, 2007 (claimant's Exhibit 1) was delivered to the defendant but not returned. None of the items for which the claimant makes a claim are discernible on the Personal Property Transferred form (claimant's Exhibit 4). In addition, with respect to the claim for the loss of the television set, the defendant produced a record indicating that the commissary at Great Meadow has no record of the claimant's purported purchase of a television (defendant's Exhibit A). The mere fact that the claimant was issued a television permit does not, standing alone, establish the essential fact that the television was delivered to the defendant with the understanding that it would be returned and that the defendant failed to do so. Thus, claimant failed to meet his burden of establishing this bailment cause of action by a preponderance of the credible evidence.
With respect to the claim for the green sweatshirt reflected in the Inmate Claim Form dated April 19, 2007, claimant failed to establish that he exhausted his administrative remedies as required by Court of Claims Act § 10 (9) (see defendant's Exhibit B).
The Court likewise concludes that claimant's cause of action for "harassment" arising from alleged food deprivation and the use of a cell shield lacks merit. The Court finds claimant's credibility marred by the many complaints he has lodged attributing various conduct of correction officers to their racist beliefs, membership in the KKK or homosexuality (defendant's Exhibit C). Claimant's grievances covering a multitude of complaints were investigated, including the complaint relating to the alleged food deprivation, and found to be meritless. While the claimant attributed the food deprivation to the wrongdoing of an Officer Paxson, the investigation undertaken by prison authorities revealed no such officer by that name. Rather, an Officer Baxter was responsible for the evening meals during the relevant time period and, in a written statement, he denied ever depriving an inmate of an evening meal (defendant's Exhibit C).
The placement of a cell shield is permitted for good cause, which includes the throwing of feces, urine, food or other objects through the cell door (7 NYCRR § 305.6 [b] ). While claimant testified that the cell shield order should have been removed upon dismissal of the charges related to the commission of an "unhygienic act", the controlling regulation permits the use of a cell shield without a hearing (7 NYCRR 305.6 [c]). Courts have concluded in this regard that "a prison inmate in New York has no protected liberty interest in confinement in an unshielded cell" (Breazil v Bartlett, 998 F Supp 236, 243 [WD NY 1997]; see also Arce v Walker, 139 F3d 329 [2d Cir 1998]; Beckford v Portuondo, 151 F Supp 2d 204 [ND NY 2001]). Moreover, the availability of the inmate grievance procedure and relief pursuant to CPLR article 78 has been found an adequate due process safeguard (Kemp v LeClaire, 2007 WL 776416 [WD NY 2007]). Consequently, this claim lacks merit as a matter of law.
Based on the foregoing, the claim is dismissed.
Let judgment be entered accordingly.
November 10, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims