On April 13, 2012, a New York federal court held that prison officials were liable for convicting a prisoner in a disciplinary action based solely on a victim's hearsay statement and upholding that disciplinary conviction.

Carl Molano, a New York state prisoner, was on the prison's recreation yard when another prisoner, Travis Lang, was cut across the face by someone who attacked him from behind. 68 other prisoners were on the yard.

Lang initially said that he did not know who attacked him. Later, Molano was charged with the assault in a prison disciplinary proceeding after Lang allegedly identified him from a photo spread of all the prisoners on the yard.

Lang refused to testify in the disciplinary proceeding held by Hearing Officer Jose Pico. Guard J. Wright testified that immediately after the attack, Lang told him that he did not know who had attacked him. Another prisoner testified that he was talking to Noland when the attack occurred. Sgt. Levac testified that Lang identified Molano from the photo spread and he had witnessed the identification.

Molano was found guilty and sentenced to 36 months in the Special Housing Unit (SHU). He appealed to Norman Bezio, Director of Special Housing and Inmate Discipline Program. Bezio denied the appeal, but reduced the SHU term to 24 months.

Molano filed an Article 78 proceeding in New York State Supreme Court. While it was pending, but after Molano had spent 12 months in the SHU, the Commissioner administratively reversed the finding of guilt. Molano then filed a civil rights action in federal district court under 42 U.S.C. § 1983, alleging the lack of evidence in the disciplinary proceeding and Bezio's failure to reverse the disciplinary conviction denied him due process.

Molano sought summary judgment. The court held noted that "the misbehavior report completed by Sergeant Bevier was made up entirely of hearsay and double hearsay statements from other officers, none of whom endorsed the report or submitted their own firsthand reports." Lang refused to testify and, on his refusal form was written, "this inmate was the one who assaulted me." However, Lang denied making such a statement. During his appeals, Lang gave Nolan() a sworn statement that he did not believe Molano was the prisoner who attacked him.

"No one who testified at the hearing had personally observed the attack, and no testimony or evidence was presented at the hearing which suggested that any efforts, beyond the photo array, were made to verify the identification of plaintiff as Lang's attacker, to assess tang's credibility in making the identification, or to explore his testimony that he had not identified plaintiff as his attacker on the refusal form."

In the federal proceedings, Sgt. Bevier testified that he had signed a New York State Police Photo Display Record stating that he was the only officer present during the photo array. However, on cross-examination, he testified that he was not present for the photo array, stating that Sgt. Levac, who was not listed on the Photo Display Record, was the sole officer present.

The court found that, at best, the evidence submitted at the hearing was "a bare accusation by a victim who then refused to confirm his initial allegations" with no effort by the investigators for an "independent credibility assessment." This was inadequate under Luna v. Picco, 356 F.3d 481 2d Cir. 2004), an earlier case involving the same disciplinary officer.

Furthermore, Bezio could be held liable and was liable for failing to reverse the disciplinary conviction, an issue he had failed to brief, and neither defendant was entitled to qualified immunity. The court granted Molano summary judgment on the issue of liability and ordered the parties to confer regarding a consensual resolution of damages failing which a trial on damages would be scheduled. See: Molano v. Bezio, U.S.D.C.-W.D.N.Y., No. 6:10-cv-06481-DGL.

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