Pro se inmate was awarded damages on his claim for the loss of certain personal property.
|Claimant short name:||BUCKLEY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended sua sponte to reflect the only properly named defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Eddie Buckley, 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 16, 2020|
|See also (multicaptioned case)|
Claimant, a pro se inmate, seeks payment for the alleged loss of certain personal property during the course of an assault at Great Meadow Correctional Facility on August 20, 2015. Thereafter, on September 3, 2015 following his transfer to Elmira Correctional Facility, he allegedly discovered that certain additional property that had been left in his cell and packed by correction officers was missing. Trial of this matter was conducted by remote video conference on November 22, 2019.
Claimant testified that in preparation for a court trip, a correction officer attempted to "cram"(2) 13 inmates into a van to be driven from Washington Correctional Facility to Great Meadow Correctional Facility. In the process, the correction officer requested that claimant sit on the lap of another inmate, which he refused to do. He and the officer had "words" and the claimant testified that the correction officer then struck him, at which time other correction officers began choking and kicking him. Claimant testified that the officers pulled out his dreadlocks and he lost his religious head crown during the scuffle. Claimant was later transferred from the Special Housing Unit (SHU) at Great Meadow Correctional Facility to the SHU at Elmira Correctional Facility. He testified that when his property was inventoried at Elmira Correctional Facility a pair of boots, 25 stamps, a typewriter, seven packs of cigarettes, and a radio were missing. Claimant testified that although he brought this property with him to Great Meadow Correctional Facility, there is no I-64 Personal Property Transferred form which reflects this.
Claimant testified that the boots were purchased approximately two to three months before the loss at a cost of approximately $55.00; the Smith Corona typewriter was purchased approximately two years before at a cost of $200.00, and the radio was purchased approximately ten years before the loss at a cost of $150.00.
On cross-examination claimant identified his signature on the I-64 Personal Property Transferred form completed at Elmira Correctional Facility (defendant's Exhibit A, p. 7). The form lists two pairs of boots and a typewriter but does not include the cigarettes, stamps, radio or religious head crown. When queried concerning the purchase price of the head crown, for which claimant seeks reimbursement in the amount of $5,000.00, claimant testified the head crown he lost was handmade and blessed by a priest. Although the cost of this item varies, claimant testified that he did not purchase the head crown. Claimant also testified he was unaware that inmates were limited to four pairs of shoes. With respect to the radio, claimant testified that he has a Proof of Ownership form (claimant's Exhibit 4), which lists the radio, among other things, and is dated August 15, 2015. Claimant also admitted that the typewriter he alleged the defendant failed to return to him was not included as an item of property lost in the claim. 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). A rebuttable presumption of negligence arises where it is established that the 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 (7 NYCRR 1700.7 [b]; Wikiert v City of New York, 128 AD3d 128 [2d Dept 2015], 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 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. v Kilmer, supra; Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049 [3d Dept 1981]).
Initially, with respect to claimant's loss of his head crown and state-issued glasses(3) , claimant failed to demonstrate, as was his burden, that he exhausted his available administrative remedies (Court of Claims Act § 10 ). The failure to exhaust the available administrative remedy with respect to this claim is a jurisdictional defect that may not be waived (Williams v State of New York, 38 AD3d 646 [2d Dept 2007]). Moreover, claimant failed to establish either an express or implied bailment for these items as he failed to demonstrate that he relinquished exclusive possession and control over the property (Ross v Tuck-It-Away, Inc., 180 AD2d 428 [1st Dept 1992]; Hutton v Public Stor. Mgt., 177 Misc 2d 540 [App Term, 2d Dept 1998]). To the extent the claim seeks payment for the loss of these items, it must therefore be dismissed.
With respect to the remaining property claimant alleges was last in the possession of DOCCS but not returned, none of the property, save for the boots and typewriter, are reflected on the I-64 Personal Property Transferred form. While claimant produced proof of ownership for the radio and typewriter (claimant's Exhibit 4), the loss of the typewriter was not included in the claimant's administrative claim nor the claim he filed in the Court of Claims. No award is therefore made for the loss of the typewriter. With respect to the loss of the radio, claimant failed to establish that it was in his possession when the officer packed his cell. The radio is not listed on the I-64 form claimant signed and the signed statement of the correction officer who packed his cell indicates that all of the property in the claimant's cell was packed and arrived at the SHU on September 3, 2015 (defendant's Exhibit A, p. 3; see 7 NYCRR 1700.7 [b] ). The Court does not find credible claimant's testimony to the effect he brought the radio to Great Meadow together with his other property. No award is therefore made for the alleged loss of the radio.
The boots claimant alleges were delivered to DOCCS' possession but not returned are reflected on the I-64 form (defendant's Exhibit A, pp. 6-7). The claims officer's investigation states that "[t]he investigation provided by Sgt. Isaacs states that the inmate has more than the allowed limit for personal shoes (cannot exceed 4 pairs)" (defendant's Exhibit A, p. 4). Indeed, the I-64 form itself indicates the maximum allowable quantity of footwear is four and that claimant had three pairs of shoes and two pairs of boots, thereby exceeding the permissible limit. Nevertheless, DOCCS is not permitted to dispose of an inmate's property without first giving him or her the option of either shipping it to another or arranging to have someone pick it up (see Directive 4913 [III], [E]). This was not done here. Accordingly, the Court awards claimant $50.00 for the loss of his personal boots.
Inasmuch as there is no evidence that the claimant owned or possessed the cigarettes or stamps, no award is made with respect to these items.
Based on the foregoing, claimant is awarded the sum of $50.00, with interest at the statutory rate from September 3, 2015. To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).Let judgment be entered accordingly.
January 16, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
2. All quotes are taken from the audio recording of the trial testimony unless otherwise indicated.
3. While claimant made no mention of losing his glasses during the course of his trial testimony, it is included in his claim.