However, in every one of these cases, the plaintiffs offered proof that they were more than 100 miles away. In our case, we do not know where plaintiff is. His attorney has attempted to contact him on several occasions at his family home in New York City without success. I find that it is the burden of plaintiff to prove that he is more than 100 miles from the place of trial, and he has not done so. Therefore, the motion to admit the deposition testimony is denied.
II. Factual Findings
Since plaintiff was not present, the record was developed through exhibits and the testimony of the defendants, who were called as witnesses by plaintiff's attorney. Based on that record, the following constitutes the court's findings of fact and conclusions of law.
In 1987, plaintiff Donald Frazier was an inmate at Collins Correctional Facility, assigned to work in the prison library as a clerk. Generally, he was under the supervision of Michael Williams, who was the regularly assigned law library officer. When Williams was unavailable or had a day off, defendant Adolph Forgione took his place. Frazier used an assigned desk where he stored various legal materials in the library.
On April 17, 1987, another inmate accused plaintiff of assaulting him. Although plaintiff denied any involvement in the alleged attack, he was charged with violating prison rules prohibiting assault. A Tier III hearing was held, and plaintiff was found guilty of the charge and sentenced to two months' confinement in the Collins Secured Confinement Area ("SCA").
Shortly after plaintiff went to the SCA, Williams instructed a clerk to take Frazier's legal papers from his desk and place them in an envelope, on which Williams printed "Frazier 86-T-0155." This envelope (Ex. 29) contained the legal papers at issue (Exs. 30-67). According to Williams, these papers were placed in the drawer of the desk which Frazier had been using.
Correctional Officer Forgione testified that another officer asked him to retrieve Frazier's legal papers from Frazier's desk and take them to Frazier. Forgione searched the desk and located some papers, which he showed to Frazier. Frazier said that these were not the papers he was looking for. Rather, they were described as legal notes which Frazier had taken while assisting other inmates. Forgione searched through Frazier's desk again, but found nothing further.
Forgione told Williams that Frazier was looking for additional legal documents which Forgione could not locate. Williams did not tell Forgione that he had taken the documents, and placed them in an envelope. At his deposition, Williams said that he could not recall discussing the missing records with Forgione. Williams testified that when he told a supervisor or sergeant that he had taken Frazier's legal papers, he was ordered by the supervisor or sergeant not to give the legal papers back to Frazier at that time. Williams could not remember the name of the supervisor who gave him that instruction. He said nothing to Forgione about this conversation with his supervisor.
Defendants assert that Frazier was not entitled to have his papers delivered immediately based on a Department of Correctional Services ("DOCS") directive which provided that when an inmate was placed in a unit such as the SCA, his items of personal property, including legal papers, were not to be given to him for at least the first three days. In this case, Frazier's original placement was in the nearby infirmary due to the crowded conditions in the SCA. Understandably, this may have been a reason why the papers were not delivered to him immediately, but such reason cannot explain the two-year disappearance.
Officer Forgione also said that the watch commander told him not to return Frazier's documents until Williams had an opportunity to review them to see if Williams was named by Frazier in any proposed lawsuits. Defendants argue that Forgione's testimony is so confusing that it should be substantially discounted. Although I agree that his testimony was confusing and contradictory, his statements concerning William's review of Frazier's papers are supported by Exhibit 1, which was prepared jointly by Frazier and Forgione. Forgione testified that when Frazier asked him to notarize this document in July 1987, he read the document carefully to be sure that the statement was true before he notarized it. Forgione's attitude about the function of a notary was unique, but it adds credence to his testimony. In fact, the document reads like an affidavit from Forgione rather than from Frazier. There is merit to the defense argument that Forgione changed his testimony on cross-examination, but he reverted on redirect to affirming the correctness of his original testimony. In part, the affidavit reads as follows:
On the date of 04/17/87, upon the request of inmate Donald Frazier, #86TC155. I Correction Officer A.L. Forgione, was called to the hospital area where inmate Frazier was confined to awaite [sic] a disciplinary hearing relevant to an assault. Fraziers [sic] request was for his "personal legal documents" which he had left in the Law Library of Collins I where he was assigned as a Law Clerk.
I informed inmate Frazier on that date of 04/17/87; that his Legal papers were being held by the Watch Commander, Lieutenant James. James held the Legal documents for C.O.M. Williams to go through to reassure he was not mentioned or named in any of the documents correlated to Litigation on the basis of redress in the nature of an action at law.