Opinion
# 2015-038-584 Claim No. 123553 Motion No. M-86430
12-15-2015
JEROME BARNETT 13A0269v. STATE OF NEW YORK
JEROME BARNETT, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General Michael C. Rizzo, Assistant Attorney General
Synopsis
Case information
| UID: | 2015-038-584 |
| Claimant(s): | JEROME BARNETT 13A0269 |
| Claimant short name: | BARNETT |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123553 |
| Motion number(s): | M-86430 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | JEROME BARNETT, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General Michael C. Rizzo, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 15, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual formerly incarcerated in a State correctional facility, has filed this claim seeking compensation for property allegedly lost at Upstate Correctional Facility (CF). Defendant made this motion to dismiss the claim due to claimant's failure to exhaust administrative remedies prior to commencing this proceeding. Claimant opposed the motion, and he submitted documents seeking to prove that he had exhausted his administrative remedies. A hearing was held on the disputed issue of exhaustion of administrative remedies on October 15, 2015, at which defendant offered the testimony of Tammy Daggett, an Institutional Steward at Upstate CF, and claimant testified on his own behalf. Three documents offered by defendant were received into evidence; four documents offered by claimant were also received into evidence. The filed claim with attachments was received as Court Exhibit 1.
Court of Claims Act § 10 (9) states that "[a] claim of any inmate in the custody of the [Department of Corrections and Community Supervision] for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department" (emphasis added). Failure to exhaust the available administrative remedies (see 7 NYCRR § 1700.3) deprives the Court of Claims of subject matter jurisdiction and requires dismissal of the claim (see Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007]).
Claimant filed this claim on November 25, 2013, and it alleges that Upstate CF officials lost his property in 2013, and that he filed Facility Claim # 840-0089-13 which was disapproved because of lack of evidence of loss (see Court Exhibit 1, Claim Number 123553, at ¶ 2). Attached to the claim was the Inmate Claim Form for Facility Claim # 840-0089-13, which indicates that the lost property claim was disapproved on October 12, 2013 (see id., Inmate Claim Form, Facility Claim # 840-0089-13, at Part 3). Left blank on the Inmate Claim Form were Part 4, where claimant would have stated his grounds for the appeal, and Part 5, where the result of any such appeal would be noted and subscribed by the Superintendent (see id.).
In support of its motion to dismiss the claim, defendant submitted the affidavit of Tammy Daggett, a Steward at Upstate CF, who averred that a review of the records at Upstate CF showed that claimant's inmate property claim was denied on October 12, 2013, and no administrative appeal was filed at Upstate CF by claimant with regard to administrative Claim #840-0089-13 (see Rizzo Affirmation, Exhibit C at ¶¶ 3-5). In opposition to defendant's motion, claimant averred under oath that he appealed to Upstate CF Superintendent (Supt.) David Rock and that the appeal was denied on October 23, 2013 (see Barnett Affirmation, sworn to March 20, 2015, ¶ 4). Claimant's opposition papers included a copy of the Inmate Claim Form that include handwritten arguments in Part 4 of the form to demonstrate that he appealed on October 16, 2013, and that Supt. Rock disapproved the appeal and signed Part 5 of the form on October 23, 2013. In reply, defendant contends that Supt. Rock's signature on the form submitted by claimant is a forgery, and submits an affidavit from Supt. Rock that avers that the signature on the Inmate Claim Form submitted by claimant is not his and appears to be a forgery (see Cagino Affirmation, ¶ 4; Exhibit A, ¶¶ 8, 9). Claimant responded that Supt. Rock's affidavit appeared to be a forgery based upon numerous documents that claimant possessed containing Rock's signature (see Barnett Correspondence, May 4, 2015). Thus, the disputed factual issue to be decided after the hearing is whether the administrative process was abandoned by claimant as indicated in the incomplete Claim Form that was filed with the claim or whether claimant's administrative remedies were fully pursued and exhausted, as indicated by the fully completed Claim Form that was submitted by claimant in opposition to the motion.
Daggett testified at the hearing that she performed a search of the computer files and the paper files that are located at Upstate CF and found no record of claimant's administrative appeal. Specifically, Daggett testified that she located a copy of the Inmate Claim Form for Claim # 840-0089-13 and that it had no writing in Part 4 of the form. Daggett further testified that Part 5 of the Inmate Claim Form she found was not completed and that Supt. Rock's signature was not on the form. Daggett had served as Supt. Rock's secretary for eight years while he was the Deputy Superintendent of Security at Franklin CF, and became familiar with his signature during that time. She testified that she did not recognize the signature that was on Part 5 of the Inmate Claim Form that was submitted by claimant in opposition to the motion, and that she recognized his signature on the affidavit submitted with defendant's reply papers. On cross- examination, claimant showed Daggett memoranda from the year 2000 that contained initials and signatures purportedly of Supt. Rock, and she testified that those initials and signatures appear to be Supt. Rock's. Daggett testified that it was the procedure to submit the form to Supt. Rock and he would manually print out his name and sign Part 5 of the Inmate Claim Form, as distinguished from the Claim Form that was submitted by claimant, on which Supt.'s name was typed, not handwritten. Finally, Daggett testified that after the Superintendent decides an administrative appeal, the original Inmate Claim Form is returned to the inmate.
Claimant testified at the hearing that he appealed the denial of his inmate property claim and that he filed this claim as soon as he got the appeal back from Supt. Rock. Claimant did not know why he had attached the incomplete Inmate Claim Form to the filed claim, except to state that perhaps he filed the wrong copy. Claimant testified that he did not have an original of the Inmate Claim Form, explaining that correctional officials went through his property and that as a result he was missing a lot of paperwork.
In viewing claimant and evaluating his demeanor while he testified at the hearing, the Court finds his testimony that he appealed and received a denial of his appeal to be not credible. Claimant's explanation that he must have filed the wrong copy of the Inmate Claim Form rang hollow, especially in view of the credible testimony of Tammy Daggett that inmates receive the original form, along with the fact that this claim was filed not long after claimant allegedly received the appeal. His testimony is further undermined by both the filed claim, which lacks any reference to an administrative appeal, and by the Inmate Claim Form that was filed with the claim, which is blank with regard to the appeal and appeal determination. In sum, the Court discredits claimant's assertions that he appealed and received a denial of his appeal, and therefore finds that claimant has failed to exhaust his administrative remedies, which divests the Court of jurisdiction over the claim.
Accordingly, it is
ORDERED, that motion number M-86430 is GRANTED, and claim number 123553 is DISMISSED.
December 15, 2015
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Notice of Motion to Dismiss, dated March 10, 2015; (2) Affirmation of Michael C. Rizzo, AAG, in Support of Motion to Dismiss, dated March 10, 2015, with Exhibits A-C; (3) Notice of Opposition of Motion to Dismiss, dated March 20, 2015; (4) Affirmation of Jerome Barnett in Support of Claimants [sic] Opposition to Motion to Dismiss, sworn to March 20, 2015, with Exhibits A-C; (5) Affirmation of Paul F. Cagino, AAG, in Opposition to Claimant's Papers Opposing Defendant's Motion to Dismiss, dated April 28, 2015, with Exhibits A-B; (6) Correspondence of Jerome Barnett, dated May 4, 2015; (7) Order of the Hon. W. Brooks DeBow, Judge of the New York State Court of Claims, dated October 5, 2015; (8) Amended Order of the Hon. W. Brooks DeBow, Judge of the New York State Court of Claims, dated October 15, 2015.