Pro se inmate's claim for the damage to certain personal property following the search of his cell was dismissed following trial.
|Claimant(s):||WILLIAM HARRIS BROOKS|
|Claimant short name:||BROOKS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||William Harris Brooks, Pro Se|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Christina Calabrese, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 9, 2020|
|See also (multicaptioned case)|
Claimant, a pro se inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks compensation for the value of certain of his personal property which was allegedly damaged or destroyed during the course of a cell search by correction staff. A trial of this matter was conducted by video teleconference on November 22, 2019.
Claimant testified that a search of his entire cell block was performed on January 21, 2016. According to the claimant, during the course of searching his cell Correction Officers Keough and Copeland left his legal papers in a disorderly fashion on the bed, which caused them to fall into a pail of water. In addition, several items were taken from his cell at the conclusion of the search. As indicated on the Inmate Claim Form attached to the claim, claimant asserts that his AM/FM cassette player, trimmers, hot pot, adapter, and fan were missing after the search was completed (see Exhibit 2). While claimant has permits for the missing items, he testified that the receipts for their purchase were destroyed, along with his legal papers, in the bucket of water. Claimant testified that the denial of his administrative claim was improper because an appropriate investigation of the matter was not conducted. Specifically, claimant contends that the officer investigating his administrative claim failed to obtain signed and dated statements from the correction officers responsible for the search. In addition, claimant testified that a Claim Investigation Report form was not completed by the Claims Officer, E. Carpenter, as required by DOCCS' Directive 2733 entitled Inmate Personal Property Claim.
Defendant produced Correction Officer Matthew Keough to testify at trial. Officer Keough, who participated in the search of claimant's cell, testified that he has been employed by DOCCS for 27 years and is familiar with DOCCS' cell frisk procedures. On the date of the cell search, the facility was on lockdown and a mass cell frisk was performed at the direction of the Superintendent. According to Officer Keough, standard procedure is for the inmate to exit his cell to be pat frisked and secured. The sleeping area is usually searched first, then the remainder of the property in the cell is searched and placed on the bed. Officer Keough testified that although correction officers do not closely scrutinize an inmate's legal work, they are required to scan it for gang-related material. If contraband is found, a contraband receipt and Misbehavior Report would be issued. If no contraband is found, a receipt with the notation "NCF" would be issued. If no damage to the inmate's property resulted from the search, a receipt with the notation "NDD" would be issued. Such a receipt with the notation "NCF" and "NDD" was issued to the claimant in this case (see Exhibit 3).
On cross-examination, Officer Keough testified that although he did speak with the claims officer regarding the claimant's administrative claim, he did not sign a statement. He also indicated that although he could not identify the particular Directive governing cell searches, he is familiar with the procedure.
The State as a bailee of an inmate's personal property owes a common-law duty to secure the property in its possession (Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]; see also 7 NYCRR part 1700). This duty may be implied, even in the absence of a contractual relation, so long as the circumstances demonstrate the relinquishment of exclusive possession and control and a duty to account for the thing as the property of another (Foulke v New York Consol. R.R. Co., 228 NY 269, 275 ; Wikiert v City of New York, 128 AD3d 128 [2d Dept 2015], lv denied 26 NY3d 902 ; Mack v Davidson, 55 AD2d 1027 [4th Dept 1977]; Gagne v State of New York, 14 Misc 3d 1214 [A] [Ct Cl, 2006]; Alston v State of New York, 9 Misc 3d 1126 [A] [Ct Cl, 2005]; Matter of Terranova v State of New York, 111 Misc 2d 1089 ). Where it is established that the property was delivered to the defendant with the understanding that it would be returned, a rebuttable presumption of negligence arises if the defendant fails to return the property or returned it in a damaged condition (7 NYCRR 1700.7 [b]; Wikiert, 128 AD3d 128, lv denied 26 NY3d 902 ; Ramirez v City of White Plains, 35 AD3d 698 [2d Dept 2006]; Feuer Hide & Skin Corp. v Kilmer, 81 AD2d 948 [3d Dept 1981]; Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]). Thereafter, the burden of coming forward with evidence demonstrating that the loss or destruction of the property was not its fault is upon the defendant (7 NYCRR 1700.7 [b] ; Feuer Hide & Skin Corp., 81 AD2d 948; Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049 [3d Dept 1981]).
Here, claimant failed to meet his burden of establishing that he owned or possessed the property for which he makes a claim. Claimant proffers no receipts to demonstrate his ownership of the property and the Marking Permits he provided to demonstrate possession were issued in 2004, 2007, 2008 and 2009. Considering the age of the Marking Permits, no logical inference may be drawn that claimant possessed the items in his cell when it was searched by correction officers on January 21, 2016. Moreover, Officer Keough testified that the issuance of a receipt with the notations "NCF" and "NDD" indicates that nothing was removed from or damaged in the claimant's cell. Consequently, claimant failed to meet his burden of establishing relinquishment of exclusive possession and control of the property and he therefore does not receive the benefit of a rebuttable presumption of negligence set forth in 7 NYCRR 1700.7 (b). The burden of coming forward with evidence that the loss or destruction of the property was not its fault does not shift to the defendant under these circumstances. As a result, defendant was not obliged to demonstrate that "all department staff who had a duty to protect the inmate's property carried out their duties in an acceptable way" (7 NYCRR 1700.7 [b] ; see also Directive 2733, § V).
With respect to the claim for the damage to claimant's legal papers, claimant failed to establish either the nature of the papers that were allegedly damaged or their value (see 7 NYCRR 1700.8 [a] ). The disbursement request forms indicate only that payment was for certification fees.(1) Neither the disbursement forms nor claimant's testimony indicate the nature of the legal papers that were allegedly damaged. Nor did claimant establish that the legal papers had use in a pending or future legal proceeding such that payment for the cost of reproducing the papers may be required (id.). As a result, no award is made for the alleged damage to claimant's legal papers. Nor is an award made for the loss of postage as no proof establishing claimant's ownership or possession was offered. Claimant's request for treble damages is also denied.
Accordingly, the claim is dismissed.
Let judgment be entered accordingly.
January 9, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. The disbursement forms also included postage for mailing documents to the Office of the Attorney General and the Clerk of the Court of Claims. These disbursements have nothing to do with the claim for the loss of legal papers.