Opinion
# 2012-044-005 Claim No. 111901
02-09-2012
GILLARD v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2012-044-005 Claimant(s): GARY GILLARD Claimant short name: GILLARD Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 111901 Motion number(s): Cross-motion number(s): Judge: CATHERINE C. SCHAEWE Claimant's attorney: GARY GILLARD, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: BY: James E. Shoemaker, Assistant Attorney General Third-party defendant's attorney: Signature date: February 9, 2012 City: Binghamton Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, an inmate appearing pro se, filed this claim alleging that the Department of Correctional Services (DOCS)negligently processed his legal mail, ultimately causing him to lose his civil lawsuit pending in Federal District Court. A trial in this matter was conducted by video conference on January 12, 2012, with the parties appearing at Elmira Correctional Facility (Elmira), and the Court sitting in Binghamton, New York.
The Court notes that the duties of the former Department of Correctional Services are now being performed by the Department of Corrections and Community Supervision.
In his claim, as well as at trial, claimant stated that on July 5, 2005 he completed six disbursement forms which he gave to a correction officer, along with an oversized envelope (the Envelope) addressed to the Clerk of the United States District Court in Brooklyn. The Envelope contained proposed subpoenas for claimant's potential witnesses in a federal trialwhich was scheduled to commence August 2, 2005. Claimant said that two of the disbursement requests were for checks for subpoena/mileage fees for two of the proposed witnesses. Documents submitted with the claim and also at trial show that three disbursement forms were signed on July 7, 2005 and the two checks corresponding to the other two forms were signed on July 8, 2005. However, the sixth disbursement form, which claimant testified was for the postage/certified mail, return receipt requested for the Envelope, was not signed, approved, or returned to claimant. Claimant testified that on July 19, 2005, Correction Officer (CO) Atwood brought the Envelope to his cell with a Correspondence Unit sheet which indicated "Certified Mail Requires Disbursement Form."Claimant stated that he informed Atwood the Envelope concerned his federal case, had the two checks for subpoena/mileage fees for witnesses inside it, and that it had to go out promptly. Claimant said he has had continuing problems with CO Atwood, and that because of those problems Atwood refused to leave the mail, instead giving it to a Sergeant.
The trial apparently pertained to an alleged assault on claimant by correction officers.
Claim at 22.
Claimant said that the Sergeant then came to the cell with the mail. The Sergeant refused claimant's request to open the Envelope so claimant could prove there were two checks inside, and left the mail on the cell gate. Claimant opened the Envelope and showed the two checks to the Sergeant who then stated that claimant was not allowed to have those items as they were contraband. Claimant states that he requested the watch commander (the Lieutenant), who came to the cell. Claimant again explained the situation and asked to send the mail overnight at his expense. The Lieutenant allegedly stated that he would return the following day and send the documents by overnight federal express. He also apparently indicated that he was going to investigate the matter. Claimant states that the Lieutenant never returned and did not mail the Envelope.
To add insult to injury, claimant received a misbehavior report for having contraband in the form of the two checks. A disciplinary hearing was held and claimant was sentenced to 60 days keeplock. After claimant served the penalty, the sentence was administratively reversed.
Claimant filed various grievances concerning the situation. The Superintendent's decision pertaining to the delay in signing the disbursement forms indicated that the disbursement forms were delayed due to "inexperienced officers working in the area."
Claim at 35.
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As a result of the mishandling of the disbursement process and claimant's outgoing mail, the proposed subpoenas were never delivered to or executed by District Court. When claimant was transported to the Court for trial, no witnesses were present to provide testimony on his behalf. The Court apparently did not consider his explanation as to why there were no witnesses and denied any adjournment, thus allegedly depriving claimant of a fair trial. The jury in that trial found in favor of defendant.
"It is well settled that in order to set forth a prima facie case of negligence, the [claimant] must demonstrate: (1) a duty owed by the defendant to the [claimant]; (2) a breach of that duty; and (3) an injury suffered by the [claimant] which was proximately caused by the breach" (Murray v New York City Hous. Auth., 269 AD2d 288, 289 [2000]). Claimant contends that defendant negligently delayed the signing of the disbursements, negligently lost the postage disbursement, and was further negligent in not properly handling the mail after being informed of its contents and need for speedy delivery.
It certainly appears to the Court, upon a review of the pertinent documents and upon hearing claimant's uncontroverted testimony, that defendant's employees at Elmira were, at the very least, negligent in their handling of claimant's disbursement requests and legal mail. Moreover, taking disciplinary action against claimant under the circumstances essentially amounted to harassment.
Claimant's problem, however, is in the proof of damages. Claimant simply could not - and did not - prove that if the mail had been properly handled, the subpoenas would have been executed by the Court and properly delivered to the witnesses, that the witnesses would have testified favorably and that he ultimately would have prevailed in the Federal case. One of the witnesses he sought to subpoena was another inmate, who he testified was shackled to him at the time he was assaulted. It is impossible, for example, for this Court to assess how a jury would have viewed the testimony and credibility of such a witness in the absence of that testimony.
Consequently, the Court finds defendant breached its duty in its handling of claimant's requested disbursements and legal mail, but finds that claimant has not proved that this breach of duty was the proximate cause of the claimed injury, that being the verdict against claimant at his federal trial.
Defendant's motion to dismiss for failure to establish a prima facie case, upon which decision was reserved at the time of trial, is hereby granted. Any and all motions on which the Court may have previously reserved or which were not previously determined are hereby denied.
Let judgment be entered accordingly.
February 9, 2012
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims