Claimant appeared pro se.

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


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

Prior to this hearing, the Claimant’s claim was dismissed based upon the availability of insurance coverage to cover the Claimant’s loss. The availability of insurance coverage prevented the former Court of Claims from asserting jurisdiction over the claim. The Claimant filed a Motion for Reconsideration and shortly thereafter filed a Petition for a Writ of Mandamus with the West Virginia Supreme Court. The Petition for the Writ was ultimately denied. The former Court of Claims held the Claimant’s Motion for Reconsideration in abeyance until the Supreme Court matter had concluded. The Claimant’s claim was reinstated and a full hearing on the merits of the Claimant’s Notice of Claim before the Legislative Claims Commission was conducted on May 2, 2019.

At the hearing, the Claimant testified that on March 5, 2014, the Respondent conducted a shakedown on his pod and his cell. He was escorted out of his cell in shackles and seated at a table away from his cell before his cell was searched. He was unable to see into his cell during the shakedown. Once the Claimant returned to his cell, he testified that numerous personal property items were strewn about his cell and on the floor. While he was cleaning up, he noticed that several items of his personal property were either missing or damaged. These items included personal hygiene items, photos, adult magazines, crime scene evidence photos, a collection of pages from miscellaneous magazines, a poster and a yellow highlighter. The Claimant testified that he was charged with possession of contraband following the shakedown for having magazines without the appropriate identification as well as torn out magazine pictures. The Claimant further testified that he did not receive the correct property seizure report and filed a grievance. He exhausted his administrative remedies before filing this claim with the former Court of Claims. The Claimant placed a value of $358.86 on his lost and damaged property.

The Respondent denied the validity of the claim in its pleadings and in the hearing.

The Claimant served Requests for Admission on the Respondent pursuant to Rule 36 of the West Virginia Rules of Civil Procedure. In accordance with Rule 36, any requests for admission not expressly denied within 30 days of service are deemed admitted and admissible as evidence. The Respondent’s counsel at the time the discovery requests were served failed to answer or otherwise respond to all of the discovery requests, including twenty-four (24) Requests for Admission. Accordingly, by failing to respond to the Requests for Admission, the Respondent admitted that the Claimant’s adult magazines and single magazine pages were not contraband and subject to seizure; that the officer conducting the shakedown “smashed” some of the Claimant’s personal hygiene items; that the officer conducting the shakedown discarded magazines, crime scene evidence photos and envelopes containing the Claimant’s personal property; and significantly, that the officer conducting the shakedown failed to document the seizure and destruction of the Claimant’s personal property and failed to provide the Claimant with the required seizure reports and receipts.

This Commission is aware that the Respondent does not have a fiscal method available to it for paying claims of this nature. As such, the claim has been submitted to this Commission for determination.

In West Virginia, when a bailment situation is created, a duty or “obligation to exercise reasonable and ordinary care for the safety of the property so delivered” is imposed upon the bailee. Barnette v. Casey, 124 W. Va. 143, 19 S.E.2d 621 (1942). This Commission has previously held that a bailment situation exists when the Respondent records the personal property of an inmate and takes it for storage purposes, and then has no satisfactory explanation for not returning it. Page v. Division of Corrections, 23 Ct. Cl.238 (2000); Heard v. Division of Corrections, 21 Ct. Cl. 146 (1997).

Upon consideration of the evidence filed in this claim and the testimony given at the hearing, the Commission finds that a bailment existed between the Claimant and the Respondent. The Respondent had a duty to exercise reasonable and ordinary care with respect to the Claimant’s property but failed to do so on the date of the incident.

Accordingly, this Commission is of the opinion to make an award to the Claimant herein in the amount of $358.86.

Award of $358.86.

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