IN THE LEGISLATIVE CLAIMS COMMISSION OF THE STATE OF WEST VIRGINIA
HENRY TIMBERLAKE DUNCAN
v.
DIVISION OF CORRECTIONS AND REHABILITATION
(CC-18-1492)
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 May 2, 2019.
The Claimant was incarcerated at Huttonsville Correctional Center on April 19, 2018, when his cell was searched by the Respondent’s employees. A shank was found in his cell and was confiscated. The Claimant was then handcuffed and taken to segregation. At this hearing, the Claimant testified that he asked the correctional officers who were escorting him to segregation to lock his property boxes. The Claimant asserted that the officers refused to both lock his property box and lock the door to his cell. He alleged that because his cell was open, several inmates were able to enter his cell and remove his property. When his property was delivered to him on the segregation ward, he realized some of his items were missing. He testified that his commissary, personal hygiene items, two magazines and legal papers for two civil lawsuits were missing. The Claimant also asserted that there was video footage showing several inmates entering the Claimant’s cell as well as one inmate ransacking his personal property and throwing his legal papers into a trash can. However, this video footage was not submitted by either party. The Claimant filed numerous grievances; ultimately, all were denied upon appeal. The Claimant placed a value of $625.00 on his missing property, but he did not submit any receipts, invoices, or other supporting documentation.
The Claimant’s witness testified that he was in his cell on the bottom floor of the pod and when he looked up at the Claimant’s cell on a higher floor, he could see several inmates walking in and out of the Claimant’s cell. He further testified that he observed an inmate leave the cell with two bags of commissary food. The witness testified that he had been moved to the Claimant’s pod for health reasons and did not know the Claimant at the time of this incident. He did not report what he observed to any of the Respondent’s employees because of concerns for his personal safety. The witness further testified that he was unaware of any agreements between the Claimant and other inmates regarding the Claimant’s commissary.
The Respondent denied the validity of the claim in its pleadings and at the hearing. The Respondent asserted that in a disciplinary proceeding, the Claimant had been found guilty of conspiring with another inmate to remove his commissary from his cell. This commissary was then listed in the Claimant’s Notice of Claim filed with the Legislative Claims Commission. The Respondent further asserted that the Claimant was under a federal court protective order to destroy the records and documents related to the two lawsuits upon their conclusion, but included these documents in his claim. Both the Claimant and the Respondent’s counsel confirmed that the lawsuits had been settled. The Respondent also asserted that pursuant its policies, food items are not stored for more than three days for safety and sanitary reasons. An inmate may make arrangements to have his food items sent to family but if no arrangements are made, then the food items are destroyed.
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.
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 food items. The Claims Commission further finds that the Respondent was following its longstanding policies and procedures in handling food items belonging to the Claimant. The protective order entered by the federal district court controls the final disposition and destruction of the legal documents listed in the Notice of Claim and accordingly, no recovery can be permitted. The Claims Commission finds that the Claimant did not provide sufficient evidence to the Claims Commission to dispute the assertions of the Respondent regarding the Claimant’s purported commissary arrangements with other inmates; further, he did not establish that the Respondent was liable for the alleged damage to the Claimant’s property and failed to meet the burden of proof in order to prevail on this claim.
Based on the foregoing, the Legislative Claims Commission is of the opinion to, and does hereby, deny the Claimant’s claim.
Claim disallowed.