Bailment claim dismissed after trial. Pro se inmate claimant did not establish, among other things, that the options for disposal of property seized from him as contraband were not properly relayed, that he was entitled to compensation for such contraband in any event, or that he had a present ability to mail the property at his own expense.
|Claimant short name:||WATKINS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||PAUL WATKINS, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||June 29, 2010|
|See also (multicaptioned case)|
Paul Watkins, an inmate proceeding pro se, alleges in his claim that after conducting a routine cell search on March 24, 2007, during which property was seized, defendant's agents at Green Haven Correctional Facility [Green Haven] destroyed his property. Trial of the matter was held on May 4, 2010.
Mr. Watkins testified that "a pair of blue and grey New Balance sneakers, kept under [his] bed"(1) , were seized. When claimant asked the officer why they were being confiscated, the officer said that he was doing so because they were "colored blue."(2) He was told that the sneakers were considered contraband, and testified that he was given the option of "getting a ticket, and going through the procedures" in order to keep them, sending them home, or having them destroyed. The ticket - "only a Tier II ticket, no keeplock involved" - was issued on March 24, 2007.
After the hearing held before Hearing Officer Lieutenant La Porto on March 28, 2007, Mr. Watkins was found guilty of possessing contraband. Claimant had wanted Superintendent Robert Ercole as a witness at the hearing, but was denied such request. Claimant explained that in 2005 he had been "having conflicts about footwear for a month with Sergeant Hillman." In June or August 2005 he "saw Superintendent Ercole in the law library," who reviewed "a book with [claimant] that had the sneakers." Thereafter, claimant said, Superintendent Ercole "called down to the package room" and allowed them through. Until the March 24, 2007 search "there was no problem with [his] having them" in his possession. Then "CO Fleming took it upon himself to confiscate" the sneakers.
Claimant further explained that he wanted the Superintendent to testify because the contraband charge, a violation of facility rule 113.23 noted on the misbehavior report, would not lie if the "superintendent or his designee approved the item." The hearing officer said "the superintendent had no bearing."
After the finding of guilty, Mr. Watkins was presented with the Authorization for Disposal of Personal Property form. [See Exhibit 1]. The form gives an inmate the choice of shipping out the property at his own expense, sending it "out via visitor," donating the property, or having it destroyed at the facility. [Ibid.]. He said he chose to have the sneakers "go out with a visitor", but was aware of the proviso to that option, that the item is only held for fourteen (14) days and is thereafter destroyed. The inmate is required to make a second choice if he chooses that option, or risk destruction of his property.
Claimant testified that he signed the section of the form marked "inmate refuse[d] to make a choice" because he "figured that [he] was going to still be here, they're not going to be destroyed until the 14 days." He said that instead the sneakers "disappeared from the confiscation room" because he "never got any receipt" or other advice that they were destroyed, and that is why he "put the claim in." He seeks damages for the cost of the sneakers $45.99 "plus the trouble" he has been caused, for a total of $545.99.
On cross-examination, Mr. Watkins confirmed that in addition to the finding of guilty at the hearing, his superintendent's appeal was also denied. [See Exhibit A]. Claimant acknowledged he did not seek judicial review via an Article 78 proceeding.
Mr. Watkins asserted that when he chose the "14 day visitor option," he thought that
"after the 14 days, the procedure was that [he] would be called back to the package room to decide what to do, but that never happened. [He] was not afforded that opportunity, they were taken away or destroyed or whatever."
Claimant agreed that the original value of the sneakers was $65.00, and acknowledged his awareness that the limit on the value of sneakers an inmate is allowed to possess is $50.00, but said again that "Superintendent Ercole let me have them." Mr. Watkins conceded that he did not have any memorandum or other writing confirming that in 2005 (or at any other time) Superintendent Ercole had allowed the sneakers. Mr. Watkins had no receipt for the purchase of the sneakers. He said that his FOIL request for receipts from the package room only found a receipt from October 2003 from an outside vendor, not the July or August 2005 purchase he claims. [Exhibit 3].
Lieutenant Kevin La Porto, the hearing officer who presided over the claimant's contraband hearing, testified for defendant. He identified hearing and other records certified by the facility. [Exhibit A]. He reviewed a facility photocopy of the Authorization for Disposal of Personal Property form dated March 28, 2007, which is identical to the one submitted by claimant in Exhibit 1. [Ibid.]. Lieutenant La Porto noted that in numbered section "4", where the inmate and an employee witness are to sign the form, Mr. Watkins' signature, as well as the signature of Lieutenant La Porto, appears. [Id.].
As can be seen on the form submitted in evidence, the box which provides "inmate refused to make choice afer being informed by employee witness" is not checked (nor is the same box on the copy of the form submitted in evidence by Mr. Watkins). [See Exhibits 1 and A]. Lieutenant La Porto said that the lack of a check mark indicates - contradicting what claimant testified to at trial - that the inmate had not refused to make a choice after being informed of his options by the employee witness. Such option information includes the advice that if a visitor does not pick up the property within fourteen (14) days the property is destroyed. This information concerning destruction after fourteen (14) days is also written on the form. [See Exhibits 1 and A].
Another photocopy of the form from the certified facility records contains additional writing indicating "Destroyed 4/13/07" initialed by a correction officer. [Exhibit A].
It is noted that with respect to the contraband hearing, Lieutenant La Porto, as the hearing officer, completed the Witness Interview Notice (Form 2176), giving his reasons for not granting the inmate's request that Superintendent Ercole testify ("[Inmate] admitted requested person was not present at time of incident of misbehavior" ) and held the hearing in a timely fashion under the regulations. [See Exhibit A; See 7 NYCRR §253.1 et seq.].
The inmate personal property loss claim form submitted by claimant in evidence here, was filed on or about July 24, 2007. [See Exhibit 1]. The claim was denied on July 31, 2007, with the indication that the facility was not at fault for the alleged loss or damage, and that the item was destroyed on April 13, 2007. [Ibid.]. Claimant's Superintendent's appeal was denied by Superintendent Ercole on August 20, 2007. [Ibid.].
No other witnesses testified and no other evidence was submitted.
This claim is in the nature of a bailment created between defendant and claimant by delivery - or in this case seizure - of claimant's personal property into the custody of defendant's employees. See generally Claflin v Meyer, 75 NY 260 (1878); Ahlers v State of New York, (Claim No. 82543, Corbett, P.J., filed Dec. 23, 1991). The State has a duty generally to secure an inmate's personal property. Foy v State of New York, 182 AD2d 670, 671 (2d Dept 1992); 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, would satisfy the burden of establishing a prima facie case of negligence.
Nonetheless, when an inmate is found in possession of contraband, he is given the option of having the property destroyed, donated, picked up by a visitor within a certain time frame or mailed to another location at his expense.(3) This is the procedure described in facility regulations and also set forth in one of the New York State Department of Correctional Services [DOCS] Directives available to the public at its website.(4)
After property is seized as contraband, and a misbehavior report alleging the inmate's unauthorized possession of contraband items is issued triggering the disciplinary process [see 7 NYCRR §253.1 et seq. (for Tier II disciplinary proceedings)], the hearing officer determines what will happen with the property. The fact that the property was designated as contraband was resolved by that process. Any deficiencies in the hearing process would be addressed by administrative appeal (which apparently claimant pursued unsuccessfully) and judicial review (which claimant did not pursue).
As to compensation for the subsequently destroyed property, claimant has simply not credibly established that there is any basis to compensate him.
Indeed there is some authority suggesting that as "contraband" that an inmate is not allowed to possess, the inmate may not be entitled to compensation for its destruction even if unauthorized because his own initial possession of the property is not authorized. See Patterson v State of New York, UID # 2000-029-020, Claim No. 94538 (September 26, 2000, Mignano, J); Barrett v State of New York, UID # 2000-001-036, Claim No. None, Motion No. M-60959 (June 30, 2000, Read, P. J.).
However, it is ultimately claimant's burden to establish entitlement to the relief requested. In keeping with the requirement of establishing his claim by a preponderance of the credible evidence, more is required than a continued declaration that the options were not presented or that he did not understand what is clearly set forth on the form: if a visitor does not arrive within fourteen (14) days the property will be destroyed.
Even assuming that the disposal options were not presented or understood, claimant has not established that he either had a present ability then to actually mail the property at his own expense or that he could have arranged for a visitor to pick it up. See Barrett v State of New York, supra.
Accordingly, claimant has failed to establish entitlement to relief, and claim number 114571 is in all respects dismissed.
Let judgment be entered accordingly.
June 29, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. Quotations are to trial notes or audio recordings unless otherwise indicated.
2. A color prohibited by facility rules in particular shades, perhaps because it is associated with gang activity.
3. DOCS Directive No. 4913, Inmate Property (III D. Disposal of Excess Property). See http://www.docs.state.ny.us/directives.html
4. See http://www.docs.state.ny.us/directives.html