IN THE LEGISLATIVE CLAIMS COMMISSION OF THE STATE OF WEST VIRGINIA

MARLIN MCCLAIN

v.

DIVISION OF CORRECTIONS AND REHABILITATION

(CC-18-1547)

Claimant appeared pro se.

Briana J. Marino, Assistant Attorney General, for the Respondent.

PER CURIAM:

The Claimant filed this claim to recover the value of certain personal property that he alleged was damaged and lost while under the care of the Respondent.

The Claimant and the Respondent, through its counsel, appeared for a hearing before the Legislative Claims Commission on November 22, 2019.

The Claimant is presently incarcerated at Mount Olive Correctional Complex. At the hearing, he alleged that his personal property was damaged during a cell search on September 20, 2018. At the time the search occurred, the Claimant was housed in the medical wing of the facility, and accordingly, was not present when the cell search was conducted. When he returned to his cell, he testified that his belongings had been thrown around the cell and were in disarray. He further testified that the missing property included food items, personal hygiene items, photos, personal papers, and military papers. He further alleged that his television had been damaged. The Claimant filed several grievances which were ultimately denied. He placed a value of $200.00 on his lost property.

The Respondent denied the validity of the claim in its pleadings and at the hearing. The Respondent asserted that the Claimant failed to properly grieve the damage to his television set and therefore, the television should not be considered in this claim. The Respondent further asserted that it complied with its own procedures and policies with respect to food items, especially perishable food items.

The Respondent’s witness testified that inmates may purchase fresh fruits and vegetables as commissary. These food items are distributed in Ziplock baggies; the food items must remain in the baggies until the food is consumed and the baggies are to be discarded once the food is consumed. The Respondent’s procedures state that all personal property items, including food items, must be stored in the same packaging that the item was in when it was delivered to the inmate. The witness further testified that when an inmate is taken to the medical wing, the inmate has 72 hours in which to make arrangements for any food items in his cell to be sent out or destroyed. If the inmate does not make those arrangements, then any perishable food items found in the cell are destroyed in accordance with the facility’s directives. Furthermore, if an inmate’s personal property is found in packaging that is different from the packaging that the item was in when it was received by the inmate, it is considered to be contraband and is subject to confiscation by the facility. Contraband is any item that has been altered or is not used in its intended manner or purpose.

Specifically, Operational Procedure 4.03 addresses the handling and storage of inmates’ personal property. This policy states that for safety and sanitary reasons, no food items will be stored for longer than three (3) days. Food items not claimed after this time are confiscated and destroyed

The West Virginia Prisoner Litigation Reform Act, found in West Virginia Code §25-1A-1 et. seq., sets forth the policies and procedures to be followed by inmates who choose to file civil actions against a West Virginia penal institution. A prisoner is required to utilize the “ordinary administrative remedy” of the Respondent’s grievance system before filing a civil action for general concerns regarding ordinary aspects of prison life. This would include issues pertaining to lost or stolen personal property of an inmate. Specifically, West Virginia Code §25-1A-2(c) states:

An inmate may not bring a civil action regarding an ordinary administrative remedy until the procedures promulgated by the agency have been exhausted.

The Respondent’s grievance system is set forth in Policy Directive 335.00, titled “Inmate Grievance Procedures”. Pursuant to this policy, all inmates must exhaust their administrative remedies before filing a civil action, or in this instance, a claim with the West Virginia Legislative Claims Commission. All documents that demonstrate a prisoner’s compliance with the Respondent’s grievance system must be included as exhibits for all incarceration claims filed with the Legislative Claims Commission.

Upon consideration of the evidence filed in this claim and the testimony given at the hearing, the Claims Commission finds that the Claimant did not make the necessary arrangements for the disposal of his perishable food items as required and accordingly, the Claimant’s property was confiscated and destroyed in accordance with the Respondent’s policies concerning perishable. The Claims Commission further finds that the Respondent was following its longstanding policies and procedures in handling food items belonging to the claimant. Pursuant to Mount Olive Correctional Complex Operating Procedure 4.03, any and all food items left behind in the Claimant’s cell following his transfer to the medical unit were disposed of within three (3) days. Furthermore, the Claims Commission hereby finds that the West Virginia Prisoner Litigation Reform Act, West Virginia Code §25-1A-1 et. seq. controls the disposition of this claim as to the Claimant’s television set. The Claimant is required to exhaust all administrative remedies set forth therein before any claim can be filed before this tribunal. Because the Claimant failed to exhaust all administrative remedies before filing his claim, he is statutorily barred from proceeding with any claim regarding his television set before the Legislative Claims Commission. Lastly, the Claims Commission finds that the Claimant did not establish by a preponderance of the evidence that there was a causal connection between the loss of his property and a breach of the duty of care owed by the Respondent. The Claimant did not provide sufficient evidence to the Claims Commission to establish that the Respondent was liable for the alleged damage to the Claimant’s property.

Based on the foregoing, the Legislative Claims Commission is of the opinion to, and does hereby, deny the Claimant’s claim.

Claim disallowed.