|Claimant(s):||WILLIS L. WHITE|
|Claimant short name:||WHITE|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-77868, M-77984|
|Judge:||JEREMIAH J. MORIARTY III|
|Claimant's attorney:||Willis L. White, Pro Se|
|Defendant's attorney:||Hon. Andrew M. Cuomo
New York State Attorney General
By: Richard B. Friedfertig
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 22, 2010|
|See also (multicaptioned case)|
Claimant, a pro se inmate, seeks compensation for wrongful confinement and loss of personal property which allegedly occurred while Claimant was in the custody of the New York State Department of Correctional Services (DOCS) at Gowanda Correctional Facility (Gowanda). Trial of this claim was conducted by video conference on March 25, 2010, with Claimant appearing at Clinton Correctional Facility in Dannemora, New York, Defendant appearing at Wende Correctional Facility in Alden, New York and the Court sitting in Buffalo, New York. Claimant offered his own testimony and Defendant offered the testimony of DOCS Correction Officer R. Roth.
Immediately prior to the commencement of trial, the Court heard Defendant's motion M-77868 seeking an order of dismissal and to compel discovery and preclude, and Claimant's motion M-77984 seeking an order for permission to late file a claim and notice of discovery. The Court reserved decision on the motions and now denies them as moot based upon the following decision.(1)
With respect to the wrongful confinement claim, an inmate who is unlawfully removed from a prison's general population and placed in punitive segregation such as the Special Housing Unit (SHU) or keeplock may have a cause of action for monetary damages (see e.g. Wilkinson v Skinner, 34 NY2d 53 ). Such a cause of action has roots in due process considerations (Wilkinson v Skinner, supra; Edmonson v State of New York, 132 Misc 2d 452, 455 ; see also Arteaga v State of New York, 72 NY2d 212, 221 ) and it is also recognized as "a 'species' of false imprisonment" (Ramirez v State of New York, 171 Misc 2d 677, 682 ). Where, however, the confinement is imposed in connection with a disciplinary proceeding, the State is absolutely immune from claims for money damages as long as those proceedings were conducted in accordance with rules and procedures established by DOCS. This is true even if the underlying disciplinary charges are later reversed administratively or as the result of a successful Article 78 proceeding (Arteaga v State of New York, supra; Davis v State of New York, 262 AD2d 887 , lv denied 93 NY2d 819 ).
Claimant's position in this claim is that he is entitled to recover for the injuries caused by sixty-seven days of restrictive confinement because there were errors in the filing of a misbehavior report and in the conduct of his disciplinary hearing. Claimant received an inmate misbehavior report on October 1, 2001 charging him with violation of rules: 107.11 (harassment); 106.10 (refusing direct order); and 123.10 (self-inflicted bodily harm) and he was immediately placed in SHU. A Tier III disciplinary hearing on the charges commenced on October 7, 2001 and concluded on October 22, 2001. Claimant was found guilty of the charges and, as a result, he was sentenced to 80 days of SHU with loss of recreation, packages, commissary, phone and radio/headphones privileges.
Following the hearing, Claimant filed an administrative appeal of the determination and on December 6, 2001 the determination was reversed by Donald Selsky, Director of Special Housing/Inmate Disciplinary Program for the reason that the hearing officer failed to conduct an inquiry into the inmate's mental health status. As a result, Claimant was released from restrictive confinement on December 6, 2001, the records of the disciplinary proceeding were expunged, his privileges were restored and he was reimbursed $23.40 for loss of income incurred during his confinement in SHU.
Although Claimant disputes the validity of the charges against him that were determined at the hearing, he cites no shortcoming in the hearing process itself upon which an action for wrongful confinement can be based. Defendant's proof demonstrates that the hearing officer took appropriate disciplinary measures and acted within the scope of his discretionary functions in conducting the hearing and in imposing penalties upon Claimant. The same can be said for the review of the hearing by Mr. Selsky. There is no indication that Defendant violated any of its own rules and regulations in conducting the hearing, or otherwise acted outside the sphere of privileged actions (Arteaga v State of New York, supra; Holloway v State of New York, 285 AD2d 765 ; cf. Gittens v State of New York, 132 Misc 2d 399 ). Accordingly, their determinations are entitled to immunity.
Claimant also alleges in his claim that DOCS negligently lost his personal property at the time of his transfer from Gowanda to Attica Correctional Facility (Attica) on November 15, 2001. Claimant testified that upon arrival at Attica he discovered that certain items of his personal property were missing, including items he allegedly purchased at the Gowanda commissary a day or two before the transfer. However, attached to the Claim is a Personal Property Transferred inventory form (Form 2064) dated November 14, 2001, signed and acknowledged by Claimant, relating to the transfer from Gowanda to Attica, which lists many of the same items Claimant later reported missing. Claimant subsequently filed an Inmate Claim Form dated November 27, 2001 listing the allegedly missing items which was disapproved by the facility based upon a finding that the 2064 forms were signed by Claimant without any losses indicated.
The burden is on the Claimant to prove his claim by a fair preponderance of the credible evidence. Generally, when a claimant has established a bailment by proving delivery of personal property to the bailee, failure to return it upon demand raises the presumption of liability on the part of the bailee. Here Claimant alleges that his personal property was packed up and placed in the custody and control of DOCS at Gowanda, thereby creating a bailment, and since property was later found to be missing, a presumption arises that the loss occurred through the negligence of Defendant's agents (Heede Hoist & Mach. Co. v Bayview Towers Apts., 74 AD2d 598 ). The State has a duty to secure an inmate's personal property (Pollard v State of New York, 173 AD2d 906 ).
The measure of recovery where bailed property is not produced upon demand is the fair market value of the property, which is the original price less a reasonable rate of depreciation (Phillips v Catania, 155 AD2d 866 ; Schaffner v Pierce, 75 Misc 2d 21 ).
Unfortunately, despite the sincerity of his testimony, Claimant did not establish by a preponderance of the credible evidence all the necessary elements of a bailment claim. Although Claimant has established that at one time he possessed some of the allegedly missing items, he did not establish exactly which items of property were last in his possession and were delivered into DOCS custody and control. The 2064 forms list some of the items claimed to be missing which may - or may not - relate to the property loss claim herein. Thus there is no evidence, beyond Claimant's sole testimony, verifying the specific property that was allegedly missing.
Claimant did submit evidence of the value of some of the items he claims are missing, but the Court is unable to assess damages without competent proof of the possession of the purportedly missing property. Accordingly, Claimant has failed to establish a prima facie case.
Based upon the foregoing, Defendant's motion to dismiss the Claim, upon which decision was reserved at the time of trial, is hereby granted, and Claim Number 105960 is dismissed in its entirety.
LET JUDGMENT BE ENTERED ACCORDINGLY.
July 22, 2010
Buffalo, New York
JEREMIAH J. MORIARTY III
Judge of the Court of Claims
The following papers were read and considered with respect to Defendant's motion (M-77868) to dismiss, compel discovery and preclude:
1. Notice of Motion and supporting affidavit of Assistant Attorney General Richard B.
Friedfertig sworn to February 19, 2010, with annexed Exhibits A-C.
The following papers were read and considered with respect to Claimant's motion (M-77984) for permission to file a late claim and notice of discovery:
1. Notice of Motion and Notice of Discovery of Claimant, Willis L. White, dated March
2. Affidavit in opposition by Assistant Attorney General Richard B. Friedfertig sworn
to March 18, 2010.
1. The Court notes that both motions would have been denied even if they had not been rendered moot by this decision. Defendant's motion M-77868 to dismiss on the grounds that Claimant failed to clarify his earlier discovery responses and failed to respond to Defendant's request for expert information and for collateral source information would have been denied as it is unlikely that a further response would have clarified anything given Claimant's apparent lack of understanding, and as Claimant did not retain an expert and, most likely, did not have any collateral source information to disclose. Claimant's motion M-77984 would also have been denied. While styled as a motion for permission to late file a claim, Claimant's motion read more like a motion to compel discovery. Claimant's motion, however, was not supported by an affidavit and was accompanied simply by an unintelligible statement addressed to the Court. If construed as a motion to compel, Claimant's motion would have been denied as a motion to compel is appropriate only after a party has served a proper discovery demand and the other party has failed to respond or comply with the demand. Here, Defendant has denied ever being served with a discovery demand and Claimant failed to file any discovery demands with the Clerk of the Court as required by the Rules of the Court of Claims (22 NYCRR § 206.5 [c]).