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.

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

At the hearing, the Claimant testified that on August 15, 2018, he was incarcerated at Mount Olive Correctional Complex when his cell was searched by the Respondent’s employees. He was unable to identify any of the employees and did not ask them for their names. At the time he left his cell for the search, he testified that his new CD, Black Sun by Ra, was working properly in his CD player. Following the search, the Claimant discovered that the CD was piled up with other CD’s and placed on the floor. When he examined the CD, he noted that it was severely scratched. Neither the Claimant nor his cellmate were in the cell during the search but when he returned to his cell, he observed that all of his CD’s were on the floor instead of the shelf where he had previously placed them. The Claimant testified that he notified the Unit Manager of the damage to his CD. He exhausted his administrative remedies before filing this claim. The Claimant testified that he believed that the Respondent’s staff should have investigated and verified the identity of the officers involved in the search of his cell. The Claimant testified that he had purchased the CD with explicit lyrics on Amazon for $27.49. He objected to the Respondent’s evidence of the cost of a replacement CD for $11.06 because it had “clean” lyrics and he did not want to listen to edited music. Since the original search, the Claimant testified that he had already replaced the damaged CD.

The Claimant’s cellmate, Christopher McAnally, testified that the Respondent’s officers searched the cell to determine whether he was hiding his medications instead of taking them properly. He was also outside of the cell during the search but testified that he was sitting in a position that enabled him to see into the cell. He was able to observe some of the employees searching through the CD’s and saw them on the floor. He testified that they removed the CD from the CD player first and then searched through the other CD’s, removing them from their jewel cases and stacking them on the floor. He did not see the CD’s fall over but noticed that they were in a pile on the floor when he returned to the cell. Mr. McAnally testified that he did not know the identities of the Respondent’s officers and did not ask them for their names.

The Respondent denied the validity of the claim in its pleadings and in the hearing. The Respondent’s witness, the Superintendent of Mount Olive Correctional Complex, testified that he conducted an investigation into the Claimant’s allegations. He did not find any incident reports, damage reports, seizure reports, property cards or other written documentation to support the Claimant’s allegations or to even establish that the Claimant was properly in possession of the CD in question. The grievance filed by the Claimant was denied because there was no evidence or other documentation that supported the allegations in the grievance. Additionally, the Claimant was unable to identify the officers allegedly involved in this incident. The grievance form states that the Claimant’s grievance was denied because the CD in question was considered contraband and against the policies of the Respondent.

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 investigation into the events surrounding the Claimant’s allegations was completed shortly before the scheduled hearing and as such, the Respondent was unable to fully respond to the Requests for Admission. However, the Claims Commission finds that the Requests for Admission submitted by the Claimant are consistent with the testimony and evidence provided at the hearing and the law applicable to the final determination of his claim.

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 satisfy his burden of proof in order to prevail on this claim. It is the responsibility of the Claimant to investigate and prove all aspects of his claim to satisfy the burden of proof before an award may be recommended. 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 CD.

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

Claim disallowed.

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