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Vol. 14 Number 1: Winter 2004 Published by Prisoners' I..egal Services of New York Correctional Association Report Paints Grim Picture ofSHU, Recommends Changes The Correctional Association of New York, a privately funded prison watchdog agency, recently released a report on disciplinary confinement in New York, titled Lockdown New York: Disciplinary CO'?finement in New YorkState Prisons. The report, based on three years of research involving 49 site visits to 26 Special Housing Units throughout the state, as well as interviews with 258 inmates, presents a grim portrait of life in disciplinary confinement. According to the report, harsh conditions in SHU include solitary confinement or doubleceiling, where two men are confined together for 23 hours a day in a cell measuring 105 square feet. No programs are provided and simply enduring the extraordinary degree of idleness becomes one of the most difficult aspects oflife. Inmates are "cellfed" through feed-up slots in thick metal doors. Whencver prisoners leave their cells, they are mechanically restrained with handcuffs and a waist chain, and leg irons ifthey are considered seriously violent or escape-prone. To punish inmates who continue to violate rules in disciplinary confinement, corrections officials utilize increasingly punitive "deprivation orders," most commonly loss ofrecreation, loss ofshowers, and the use of mechanical restraints (handcuffs and waist chain) during recreation. The most severe punishment is the restricted diet, or a dense, binding, "loaf." Tht~ "loaf' unpalatable one-pound loaf of a breadlike "rtid, colltil1lll,d, page 2 Also Inside ... Boot the SHU - A Message from the Executive Director page 4 Inmates Settle Claims Regarding Rights of Mentally Disabled at Disciplinary Hearings page 6 DOCS Ordered to Release IG Files To Inmate Under FOIL.. page 16 Pro Se Practice - Serving the Order to Show Cause page 22 Sub,'cribe to Pro &1 See back page (or details rhis project was supported by a grant administered by the New York State Division ojCrimJnal Justice Services. Points ofvii-'W in this document are those ofthe author and do not necessarily represent the official position or policies ofthe Division o/Criminal JustlC$ Servkes. Pro Se Vol. 14 No 1. Page 2 ...al1ide cOlltillllul.ftv!71 page 1 substance made ofpotatoes, (larrots and flour - is served three times a day with a side portion ofraw eabbage for seven days straight, followed by two days off. The report cites several specific areas of concern, including a high prevalence of inmates with serious mental illness in diseiplinary confmement as well as the psychological effects of long-term isolation on even high-functioning inmates, high ratcs ofsuicide and attempts ofselfharm, overly-long sentences, extremely limited programming and inadequate recreation facilities, chronic idleness and, in some facilities, inaccessible staff and neglected inmates. Of the concerns raised, the prevalence of the mentally ill in SHU appear to be among the gravest. The report states that the most disturbing aspect ofthe Correctional Association's site visits was "encountering numerous individuals...who were actively psychotic, manic, paranoid or seemingly overmedicated." On nearly every site visit, the report states, the Association researchers, including independent psychiatrists assisting the researchers, "encountered individuals in states of extreme desperation: men weeping in their cells, men who had smeared feces on their bodies or lit their cells on fire; prisoners who eut their own flesh...; inmates who rambled incoherently and paced about their cells like caged animaL~ [and] individuals with paranoid delusions." The report states that the use of SHUs or lockdown units has grown in recent years. The units, designed for inmates who violate prison rules or who corrections officials deem are threats to security, are attractive because they are easier to tmmage and cheaper to operate than regular prisons. With no congregate activity and little outof-cell movement, contact between inmates and staff is minimal. The report states that between 1997 and 2000, New York built ten high-tech, total lockdown facilities, representing a dramatic expansion ofhigh-security housing. The report also states that 7.6% of the inmate population (approximately 5,000 of the state's 65,000 umllltes) are in disciplinary confinement in New York, which, the report states, is one of the highest proportions of inmates in SHU in the country. Nearly a quarter ofthe inmates in diseiplinary lockdown system-wide are on the mental health caseload, according to the report. In some units visited by the Correctiofllli Association, over half of the inmates were identified as seriously mentally ill. Other findings from the report include the following: It Between 1998 and 2001, over half of the system's 48 suicides occurred in 23hour lockdown, although inmates in these units comprise less than 10% of the general population. Of the 258 inmates interviewed by the Correctiofllll Association, the report states, 44% reported previous suicide attempts while in prison and 20% had prior admissions to psychiatric units. It Over one-third of the inmates interviewed by the Correctional Association reported committing acts of self-mutilation while Ul prison. The report criticizes DOCS' praetice of issuing misbehavior reports to inmates who attempt to harm or kill themselves. • Although there are nearly 1,000 New York inmates with mental illness in disciplinary segregation, the prison system's sole psyehiatric hospital. Central New York Psychiatric Center (CNVPC), has space for only about 200 inmate-patients. CNVPC has not increased its capacity since it opened in 1980, although the prisoner population has tripled over that time. Pro Se Vol. 14 No.1 Page 3 • While the Department claims that deprivation orders are used infrequently and for only the most incorrigible inmates, nearly half (49%) of the inmates interviewed by the Association received such an order for violating rules while in SHU. Forty-one percent reportcd receiving four or more. Treatment Program for inmates with mental illnesses and educational programs. It also recommends that separate psychiatric filCilities be created for disciplinary inmates with serious mental illnesses, and that certain unnecessarily harsh, counter productive or dangcrous practices - such as diet restrictions - be eliminated. • If an inmate's prison sentence ends before their term in disciplinary confinement, the inmate is released without any reorientation program, directly from thc isolation of a disciplinary housing unit to the community. CommissionerCriticizesReport; State Moves to Address Concerns • Disciplinary eonfincment often takcs a heavy toll on correction oflicers as well as inmates. Officers in some units are stabbed, spat at, assanlted or "thrown at." Some omccrs use antidt~pressants to cope with the stressful and depressing nature of the job. The report states that some Sill] units appeared well managed. Interviews with inmates and staffat those facilities often revealed efforts by staff to be attentive to inmate needs and provide programming and ctlllnseling beyond that usually provided in SHU. Those SHUs commended lor good management included those at Shawangunk, Sing Sing and Sullivan Correctional Facilities, as well as the S-Bloek at Greene Correctional Facility. The report makes a number of recommendations for improving SHU. In general, it recommends that SHU be used with less frequency and be reserved only for more serious rule infractions, and that there be grcater oversight ofSHUs by independent bodies, such as the State Legislature. More specifically the report recommends that DOCS expand and improve programs for SHU inmates, including the Progressive Inmate Movement System, in which inmates are given incentives to improve behavior, as well as substance abuse programs, the Special Shortly after the Correctional Association report wa~ released, Commissioner of Conection.~, Glenn Goord issued a press release in which he criticized the Association for bias, charged that the report "reflects the political agenda ofthis inmate lobbying group" and refused to respond to thc issues raised beyond taking issue with some of the figures cited in the report. He notcd, for example, that disciplinary confincment as a proportion ofthe inmate population has decreascd over the past three years and that approximately 1,500 of the inmates included in the CNs count of those in disciplinary confinement are actually serving only brief "keeplock" sentences in their own general confmement cells. The Commissioner also argued: "The inmates confmed in disciplinary housing are 'the worst of the worst.' The majority of all inmates committed violent crinles on our streets and many of them continue to violate the rules even in our prisons. But the fact that inmates know we will lock them up for misbehavior contributes to the fact that inmate-on-staffand inmate-on-inmate assaults are at 20-year lows. That increases prison safety for the employees who work in these facilities every day. It also removes disruptive inmates so the balance can apply themselves to positive programs. The public benefits when these offenders are released better prcpared to live law-abiding lives." Pro Se Vol. 14 No. I Page 4 The Commissioner also prohibited the Correetional Association from entering New York's SHUs in the future. Despite the Commissioner's criticism and his movcs against the Association, the State in recent months has appeared to take modest steps to address some of the concerns raised in the CA report. For example, the State recently proposed creating two "Behavioral Treatment Units" with a total of 100 beds for inmates with serious mental health problems in disciplinary housing, as well as funding other improvements in thc care of the mentally ill. See related stories below. A copy of "Lockdown New York," the Correctional Association report, may be obtained by writing to The Correctional Association, 135 East 15th Street, New York, NY 10003. A copy of Commissioner Goord's October 21, 2003 press release, criticizing the report, can be obtained by directing a FOIL request to Records Access Officer. NYS Department of Correctional Services, Building 2, 1220 Washington Avenue, Albany, New York 12226-2050. BOOT THE SHU A Message from Tom Tcrrizzi, Executive Director of PLS Over the past two deeades, New York, like other states closed many large mental institutions in favor of a more community based system. The goal was to close big institutions which had become warehouses for people with mental illness, with people languishing, often heavily medicated, sometimes lmder deplorable conditions. The plan was to place people in less restrictive settings and provide more services to them where they lived. Like many government initiatives, the plan was not fully funded. While the state proceeded with closing the large institutions, it did not fulfill its promise to adequately fund community based programs to provide services to people with mental illness. The result was the creation of smaller group homes, in which the conditions often were no better than the large institutions. Many people with mental illness chosc the streets rather than shelters or group homes. Many homeless people with mental illness got caught up in the eriminal justice system, some ending up in state prison. Many ofthose ended up in SHU. Once again the state has created a system where people with serious mental illness are back in a highly restrictive setting, where the only real treatment and prol,,'l'aming is medication, completing the circle. There seems to be some real movement today to reform New York State's largest system of mental institutions, the SHUs in maxinmm security prisons. PLS and the Legal Aid Society have been involved in challenging aspects of DOCS' and OMI-I's system over the past fifteen years. The state has fought vigorously any outside scmtiny and attempt to reform what is a harmful and destmctive system. It is only recently that it appears DOCS and OMH are willing to take the first steps to reform the way they look at and treat mental illness in prison. Two decades and many lives have been wasted fighting reform efforts. To be fair, DOCS did not ask to take on the role of housing so many people with serious mental illness who should not be in the prison system to begin with. But like other problems dropped on its doorstep, like the AIDS crisis, DOCS was very slow to respond and allowed conditions to deteriorate beyond minimal constitutional and human rights standards. Instead of adopting a therapeutic treatment model, it chose to build, at great expense, new SHUs across the state to warehouse many who should be in less restrictive settings. article continued, page 6... Pro Se Vol. 14 No. I Page 5 Albany Times-Union Editorializes Against Use ofSHUfor Mentally III In the Fall, 2003, edition of Pro Se, we reported the introduction in the legislature ofa bill which would provide separate facilities for the treatment of inmates with serious mental illness. The following editorial in support of the bill appeared in the February 6, 2004, edition of the Albany Times-Union: Torture in "The Box." Further confinement of mentally ill inmates is barbaric, and the Legislature must outlaw it Will someone at the state Capitol please listen to Ray Ortiz. He is, after all, one of the relatively few people who actually knows the horrors of incarceration in The Box firsthand. And this is what he says. "The Box isn't treatment. It's torture." Mr. Ortiz is very fortunate to have survived the brutal ordeal of serving part of his prison time in what the prL'ion bureaucrats call special housing units. Now he works for the New York Association of Psychiatric Rehabilitation Services, which is fighting to stop the barbaric practice of placing inmates with serious mental illnesses in The Box. It's such a difficult battle, though, trying to bring some hwnanity into the state prison system. A bill sponsored by Assemblyman Jeffrion Aubry, D-Queens, chairman of the Corrections Committee, doesn't even have a sponsor in the Senate. Instead the practice of subjecting mentally ill inmates, many of whom shouldn't be in prison at all, to 23 hours a day in confInement continues. Department of Correctional Servic,es Conmlissioner Gleim Goord defends the use of The Box on the grounds that it's intended to change inmates' behavior. Perhaps it does, in a constructive sense, in certain cases. But the evidence suggests that confInement in The Box further damages mentally ill inmates, who are much more likely to be locked up there than other inmates. A report by the Correctional Association of New York, an organization specifIcally authorized by state law to visit prisons and interview inmates and employees, fOWld last year that when inmates in The Box try to hurt or kill themselves, as they do with alarming frequency, the prison system punishes them with even longer stays. There are any number of injustices and inequities awaiting action, or, in many cases, perhaps, inaction by the Legislature this ycar. Few, if indeed any, would be as great an assertion of fundamental human rights as a ban on the incarceration of irunates with serious mental illnesses in The Box. Surely there's a senator who shares that view, isn't there? Someone will co-sponsor Mr. Aubry's bill, right? That would leave the next move up to Sen. Michael Nozzolio, R-Seneca Falls, chairman of the Crime and Correction Committee. Or Sen. Joseph Bruno, RBrunswick, the majority leader. We'll look forward to hearing from them. Pro Se Vol. 14 No.1 Page 6 ...article continued/rom page 4 PLS and the Legal Aid Society reeently settled part of a class action with DOCS, reported in this issue of Pro .'Ie, to reform the way inmates with serious mental illness are handled in the disciplinary process. This reform will only make a difference if DOCS shifts its focus from punishment to treatment when dealing with those who do not respond to lengthy box stays and bread and water diets. It will only work if more options other than SIDJs exist in the system. Public hearings on an Assembly bill to prohibit the housing of inmates with serious mental illness were completed in January. A broad coalition of community based mental health agencies, families of prisoners and former inmates joined in testifying about the problems in the current system. As visible elsewhere in this issue of Pro .'Ie, newspapers have begun to editorialize in favor of the Assembly bill. OrganizatiolLq such as the New York Chapter of the National Association for the Mentally 111 have made reform of the prison mental health system a top legislative priority. Even the guards' union testified in favor of reform, recognizing that their membership is not trained for nor equipped 10 be the front line staff interacting with those who are in crisis. Discovery in Disability Advocates v. DOCS and OMH, a statewide systemic action challenging the lack of treatment for those with serious mental illness in SHU brought by a coalition of reform advocates, including Prisoners' Legal Services, is moving forward at a brisk pace. The case will require the state to publicly defend this system which a growing list of newspaper editorials have called into question. As also reported in this issue of Pro .'Ie, the Governor, in apparent response to this public pressure, has included some funds in the Executive Budget proposal to create several new mental health programs within DOCS, provide more OMH personnel and expand the Intermediate Care and Special Treatment programs. While the initiative is welcome, it is not enough to address the problem. Simply expanding existing programs while still using the SIDJ as housing will not break the cycle of neglect. What we all want to see is real reform. Today we want to have people with serious mental illness receive treatment in a therapeutic setting and not locked away in solitary confincment, out of sight. We want a society and mental health systcm which rccognizes and treats mental illness at an early stage so that large, unresponsive institutions do not become the dumping grounds for problems left untreated. We do not want to be back here in 20 years seeking to undo what has been created in the name of reform because society has lost interest in the issue and promised resources were never delivered. Claims Settled in Case Involving Rights of Inmates With Mental Illness at Disciplinary Hearings: DOCS to Improve Procedures Inmates have reached an agreement with DOCS to settle part of a class action lawsuit, Anderson et al. v. Goord et aJ. (87-CV-141, N.D.N.Y), concerning the rights of inmates with mental illness at disciplinary hearings. The plaintiffs are a class of inmates with mental illness serving disciplinary confinement in the SHUs at Auburn and Green Haven Correctional Facilities. They e1aim that the prison disciplinary process as applied to them constitutes cruel and unusual punishment and denies inmates due process of law in violation ofthe Eighth and Fourteenth Amendments to the United States Constitution. Pro Se Vol. 14 No. I Page 7 Under the settlement, DOCS has agreed to amend the regulations that apply to Tier III disciplinary hearings to set forth new procedures to be followed in disciplinary hearings involving inmates with mental illness and/or limited intellectual capacity. Under the new regulations, the hearing 0 flicer will be required to consider evidence ofthe inmate's mental condition and/or intellectual capacity both at the time of the incident and at the time of the hearing. In addition, the hearing officer will be required to consider the inmate's mental health and/or intellectual capacity in determining an appropriate penalty ifthere is a finding ofguilt. The new regulations will also establish "Special Housing Unit Case Management Committees." These committees arc to be formed in each maximum security prison that houses OMH level I inmates (this means all maximum security prisons, except Southport and Upstate). The purpose of the committee is to review and monitor SHU inmates on the OMH caseload and any other SHU inmate referred to the committee. In addition, the committees will review the status of all inmates newly assigned to SHU Ibllowing a Tier III disciplinary hearing in which the inmate's mental health or intellectual capacity is at issue. The committees may also recommend restoration of privileges, suspension or reduction of SHU time, or a housing reassignment; or recommend to OMH that the inmate's medication be reevaluated or that the inmate be examined by two physicians for possible commitment to Central New York Psychiatric Center (CNYPC). The settlement further requires that when an Office of Mental Health (OMH) clinician testifies at a Tier III diseiplinary hearing, that clinician will be familiar with the inmate's mental heaith status or will review the inmate's mental health records prior to providing any information to the Hearing Officer. The testimony of the OMH clinician at a Tier III hearing will include, behaviors associated with the diagnosis, medication, purpose of medication, side effects and medication compliance, and the inmate's psychiatric history including whether the inmate has ever been in a psychiatric hospital. The OMH testimony will be taken outside ofthe inmate's presence and treated as confIdential. Finally, the settlement requires that training be provided to various DOCS staff at Green Haven and Auburn Correetional Facilities. The training will include: how to recognize when an imuate may be mentally impaired at the time of thc hearing; the significance of mental impairment at the time of the ineident in determining whether there should be a penalty and what the penalty should be; the nature of the mental illness; techniques lor managing the behavior of inmates suffering from mental illness; psychological needs of SHU inmates and recognizing when an inmate should be referred to OMH. The settlement agreement will stay in elfect for at least a five year period from the date the regulations are adopted. Plaintiffs' connsel will actively monitor the agreement for at least three years /i'mn that date. The settlement requires that certain records be provided to Plaintifls' counsel during the monitoring period. In addition, the settlement permits Plaintiffs' counsel to review OMH reeords, disciplinary hearing records and tapes (including the OMH confidential taped testinlony) of hearings that occur at Green Haven and Auburn Correctional Facilities. Although the litigation and settlement agreement pertain to Auburn and Green Haven Correctional Facilities only, the new regulations will apply to all prisons throughout New York State. Another claim in the Anderson lawsuit alleges that housing inmates with mental illness in Speeial Housing Units (SHU) at Auburn and Green Haven Correctional Facilities is cruel Pro Se Vol. 14 No.1 Page 8 and unusual punislunent in violation of the Eighth Amendment to the United States Constitution. This claim is still pending befbrc the court. PlaintifJ.~ in Anderson were represented by Prisoners' Legal Services ofNew York and the Prisoners' Rights Project of the Legal Aid Society. State Amwunces Financing for New FacilitieslPrograms for Iflmates With Mental Illness Faced with mounting criticism of its treatment of imnates with mental illness, the State of New York recently aunounced plans to open two new mental health units within the Department ofCorrectional Services. The two new units will serve imnates with mental illness who would otherwise be confined in Special Housing Units. Inmate advocates have long charged that many inmates are confined to SHU because of misbehavior that stems from their mental health problcms, and that their mental problems are, in tum, exacerbated by the harsh conditions of SHU. According to some advocates, this creates a downward cycle in which inmates with mental ilIncss initially act out as a result of their illness and are then punished by being placed in SHU, which causes them to misbehave further as their mental health deteriorates, which results in yet more punislunent. The two units, one at Sullivan Correctional Facility, the other at Great Meadow, will have a total of 102 beds. According to the Office of Mental Health, approximately 11%, or 473, of the 4,300 inmates serving time in SHUs are suffering from a serious mental illness. The new units are intended to be an alternative to SHU, according to Sharon Carpinello, Commissioner of the Office of Mental Health. They would consist of behavioral cells clustered together, with spacc nearby for imnates to participate in programs, but they would not be allowed to mingle with the general prison population. Current ccll space would be adapted for the new units. "This sort of behavior [by the state] will provide inmates with more humane care and create a safer prison environment," said Harvey Rosenthal, Executive Director of the New York Association of Psychiatric Rehabilitation Services. In addition to the new units, the state also plans to spend an additional $13 million on menIal health care in the state prisons in the fiscalycar beginning April I ,2004. Part ofthat money will be used to hire 66 new nurses and psychiatrists to work in the prison system. According to recent legislative testimony by Commissioner Carpinello, the State also plans to expand both the Special Treatment Program, which provides mental health services to imnates in SHU, and the Intermediate Care Program, which provides serviccs to irm1ates with mental illness to help them transition to general population. Deliberate IndijJerence: Court Vacates Jury Award; Fimlv No Deliberate IndijJerence to Inmate's Serious Medical Need Hernandez v. Keane, 341 F.3d 137 (2d Cir. 2003) When an imnate sues over the quality ofhis medical care in the State Court of Clain1s he will win ifhe can show that his care was either negligent or constituted medical malpractice. In addition, since the defendant is the State, the imnate need not show that a particular Pro Se Vol. 14 No. I Page 9 doctor or nurse provided inadequate care, only that his care in general was inadequate. In federal court, however, an inmate must show not only that the care was negligent, but that it was so bad that it violated his constitutional right to be free of "cruel and unusual punishment." To do this, he must prove that prison officials were "deliberately indifferent" to his "serious medical needs." "Deliberate indifference" is a higher standard than mere negligence or medical malpractice, equivalent to criminal reeklessness. See Hathaway v. Coughlin, 99 F.3d 550 (2d Cir. 1996). In addition, because the states are immune from suit in federal court, it is not suft1cient to prove that the medical eare in general was inadequate. Rather, an inmate must show that a particular person or persons were "deliberately indifferent" to his "serious" medical needs. This case, decided last quarter, illustrates how much more difficult it can be to meet the federal standard than the state standard. Imuate Hernandez sustained multiple gunshot wounds prior to his incarceration. He was treated at Bellevue Hospital but, for medical reasons, several bullet fragments in his hlmd were not removed. He len Bellevue against the advicc of his doctors and lived on his own for several months, during which he sought no treatment because he could not afford it. He was then arrested and spent the next fineen months at Rikers Island - where, for reasons unexplained, he also received no treatment. He arrived at Downstate in July of 1994. After complaining about pain in his hand he was told he would receive no treatment until he arrived at his "next facility." In August of 1994, he arrived at Sing Sing, still complaining about pain. Sing Sing medical staff referred him to an outside specialist who scheduled an operation, however, the operation was cancelled when the specialist became unavailable. In December he filed a grievance, complaining that no follow-up appointment had been made. He was then referred to a second specialist who told him to retml1 the following month for a further consultation. Over the next several months he was treated for a seizure disorder but was not sent back to the outside specialist. In March, 1995, he was transferred to Elmira - no one at Sing Sing had thought to place him on a medical hold. At Elmira he was sent to a new specialist, but that specialist recommended against surgery on the ground that it could worsen Hernandez's condition. Finally, in January of 1996, Hernandez was transferred back to Sing Sing where, aner several additional months of consultations and examinations, surgery was performed. The hand, however, did not improve as hoped. Hernandez then filed a federal lawsuit claiming that the fuilure of his hand to heal properly was due to DOCS' delay in treating him as well as to several errors committed in the post-operative period: pins and wires in his hand were not timely removed, causing infection; prescribed physical therapy was not provided; and "feed up" passes, allowing him to receive food in his cell (because he had difficulty carrying a food tray) were cancelled. A jury awarded Hernandez more than $100,000 in damages. The Second Circuit Court of Appeals, however, reversed. That court tound that the evidence had simply failed to show that any of the specific doctors or nurses whom Hernandez had sued had acted with "deliberate indifference" to his serious medical needs. The evidence, the com'! held, "[might] support findings of negligence or malpraetice as to one or more of the defendants, or as to certain prison persom1el as a group; it might support findings that the system of treatment (as a whole) broke down or misfired in some way in the particular instance of this inmate's hand; it might even Pro Se Vol. 14 No. I Page 10 support findings that someone involved in Hernandez's care (other than the defendants [named by Hernandez]) was deliberately indifferent." In other words, the court found, thc evidencc might have bcen sufficient to support a claim in statc court, but it was insufficicnt to support the higher "dcliberate indiffcrence" standard in federal court. Thc court thcrcfore vacated the jury award. Retaliation Claim.~ Survive in the ;rd Circuit Scott v. Coughlin, 344 F.3d 282 (2d Cir. 2003) Bennett v. Goord, 343 F.3d 133 (2d Cir. 2003) The Second Circuit recently reinstated two retaliation claims that had been dismissed by the district courts. The court found that sincc genuine issucs of rnaterial fact existed which could only be resolved by a jury, thc district courts had erred in granting summary judgment to the defcndants. In both cases, the court focused on thc fact that the plaintiffs had provided detailed affidavits and other documentary evidence in support of their allcgations of retaliation while DOCS merely relied upon the misbehavior reports that were generated by the officers involved and the subsequent disciplinary hearings. A retaliation claim is a claim that prison officials took adverse action against an inmate in retaliation for thc inmate's exercise ofsome protectcd right. To establish a prima facie claim of retaliation - and survive summary judgment - the inmate must show that (l) the conduct at issuc was protccted, (2) the defendant took advcrse action against him, and (3) therc was a cansal counection between the protccted speech and the adverse action. Defendants may still prevail, however, if they can show that the adversc action would havc been taken dcspite the retaliatory motive. Scott involved a claim by an inmatc that he had been retaliatcd against by COs Rando and DeLukc. Spccifically, Scott complained that Rando retaliated against him after he filed a complaint about an earlier incident in which Rando had allegedly confiscated some of Scott's legal papers. According to Scott, Rando later struck him with his baton during a strip frisk and then filed a false misbehavior report about the incident, which resulted in Scott serving 180 days in SlID. Regarding officer DeLuke, Scott complained that the officer had retaliated against him after he acted as a witness in support of another inmate's allegations of assault. According to Scott, DeLuke assaulted him in his cell, and also fIled a fulsc misbehavior rcport against him alleging that he had refused to submit to a strip frisk. A district court dismissed Scott's claim against Rando lx>cause medical records showed no significant injuries to Scott and he failed to submit any additional evidence in support of his claim. The 2nd Circuit was disturbed by this analysis. "[T]he records standing alone are inconclusive," wrote the court. "[P]laintiff submitted an affidavit describing the extent of his itljuries. These sworn statements are more than mere conclusory allegations subject to disregard, ... they are specific and detailed allegations of fuct, made under penalty ofpetjury and should be treated as evidence in deciding a Sunlffiary judgment motion....Byfinding against Scott on thc basis of thc disparity between some of Scott's medical records and statements in his affidavit, the district court made an impermissible credibility determination and weighed contradictory proof. Thc crcdibility of Scott's statements and the weight of contradictory evidence may only be evaluated by a fmder offuct" - i.e., ajury. The dcfendants also argued that Scott's claim should be di~missed because, they Pro SeVol. 14 No. 1 Page 11 asserted, disciplinary action would have been taken against him regardless of Rando's allegedly retaliatory motive since another C.O. also wrote a report which substantiated the charges. The 2nd Circuit was not convinced. The Court held that, "[w]hile it may be true that Scott would have been punished in any event, it is not at all clear that Scott would have been punished to the same extent absent defendant Rando's report." Since the Court found that an issue of fact existed as to whether Scott would havc been given the same punishment regardless of Rando's retaliatory motive it reversed the lower court's decision granting summary judgment to defendant Rando. With respect to Scott's claims against C.O. DeLuke the district court found that the alleged physical assault and the subsequent diseiplinary hearing would have occurred regardless of DeLuke's possible retaliatory motive. Specifically, it concluded that various statements Scott made at his disciplinary hearing constituted an admission that he had refused to submit to the strip frisk. The 2nd Circuit disagreed, stating, "[w]e are unable to concur with the district court because its interpretation of plaintiff's statements impermissibly drew an inference against plaintiff; the non-moving party, and awarded summary judgment to defendant on the basis of that inference. It is not at all clear that Scott's statements can be taken as an admission ofwrongdoing. A reasonable juror could just as easily find that Scott denied disobeying DeLuke's orders, given that his initial response to the hearing officer's inquiry as to whether he had disobeyed the order was 'No the offieer kicked me'." Bennett involved an inmate who had previously brought a retaliation lawsuit against DOCS in 1995. DOCS eventually settled the case, paying Bemlett $3,000.00 and promising to consider hint for a transfer. Bennett alleged that this settlement ignited a series of retaliatory aetions by DOCS. Prior to the settlement, Bennett had been deemed eligible for a transfer to a medium security facility and was transferred from Attica C. F. to Collins C.F. In the midst of fmalizing the settlement, however, Collins attempted to transfer him back to Attiea. The initial request for a transfer was denied due to "insufficient reasons for placement." However, three days later he was served with two disciplinary charges, accusing hint of "working to consolidate Imauthorized groups to a common purpose to the detriment of the safety and security of the facility" and "defacing library books." Hearings were held and thc c.harges were sustained. One day after the second hearing, Bennett was transferred to Attica. Bennett appealed the dispositions of both hearings and DOCS reversed both, finding, with respect to the first charge that it was "conclusory [and] without supporting details," and with respect to the second, that Bennett was intproperly denied documentary evidence. The charges were ordered expunged from Bennett's reeords. Bennett requested a transfer back to a medium-security facility. DOCS denied his request stating that "he had been 'deemed unsuitable for reduced security,'. .[b]ased both on recent inforntation and [ ] past history." Bennett sued, claiming that Collins and Attica prison officials had retaliated against hint for wintting his prior lawsuit by transferring hint to Attica, by fIling false disciplinary charges against hint and by refusing to return him to a medium security facility after the charges were dismissed. DOCS moved for sunmtary judgment. The district court ruled inDOCS' favor, (McAvoy, J) adopted a magistrate judge's report and recommendation which accepted DOCS' arguments and found that the first instance of alleged retaliation was unsupported because Pro Se Vol. 14 No. I Page 12 "[t]he stipulation of settlement was not even submitted to the court until after [Bennett] was transferred to Attica," and the second claim of retaliation was inadequate. The 2nd Circuit reversed. The Court noted that the defendants did not dispute that Bennett's lawsuit and subseqnent settlement and the filing of grievances were protccted activities. The issue defendants contested was whether there was a "casual connection between the protected activity and the · . l'mary actions . " "'rhe 2"d and t ranSlers. dlSClp Circuit found that Bennett "met his initial burden of producing sufficient evidence to raise a question of material fact about whether retaliation was a substantial factor in the transfers and in the discipline." The court finmd that the "temporal proximity" between the settlement of Bennett's case and the alleged retaliatory actions provided "circumstantial evidence of retaliation." The court also held that Bennett's allegations were further supported by the fact that ahnost all of DOCS' adverse actions regarding Bennett were subsequently fOlmd to be unjustified. Defendants argued that since the settlement was not entered at the time of the events in question, their actions could not have had a retaliatory motive. The 2nd Circuit disagreed. The court found that even though the settlement had not yet been entered with the court, settlement discussions had already begun. "Since these facts suggest a link between the settlement and the acts of alleged retaliation, it was error summarily to resolve this issue in DOCS' favor....Once Bennett produced evidence sufficient to raise a material question of faet as to retaliation, the burden shifted to DOCS to demonstrate through admissible evidence that the challenged actions would have occurred in any event. But none was produced. Instead, DOCS essentially treated its own motion for Smnn1ary judgment as one to dismiss the complaint contesting only the sufficiency of Bennett's allegations. DOCS' motion was not accompanied by affidavits of knowledgeable correctional officers supplying their version ofthe relevant events or their explanations for the transfer attempts or disciplinary charges - or for that matter, by any evidence at all rebutting Belmett's evidence." Thus, the court held, granting summary judgment in favor of DOCS was improper. Disciplillary In-absentia llearillgs: IIICOlISistellt Decisiolls Raise Que.rtions Matter ofPauljaioute v. Goord, 759 N.Y.S.2d 700 (3d Dep't 2003) Iv. den 1 N.V.3d 501 (2003) Matter of Rush v. Goord, 770 N.Y.S.2d 191 (3d Dep't 2003) It is settled law that an inmate has a fundamental right to be present at his or her own disciplinary hearing. See Matter of Al Jihad v. Mann, 159 A.D.2d 914 (3d Dep't 2000). If a hearing is held in an inmate's absence, the burden is on DOCS to prove that the inmate made a knowing, voluntary and intelligent waiver of that right. To meet this burden, DOCS must be able to show that the inmate has been informed of the right and of the consequences of failing to appear at the hcaring. See Matter of Spirles v Wilcox, 302 A.D.2d 426 (3d Dep't 2003). Two apparently inconsistent decisions from the Appellate Division, Third Department, however, raise the question of what, exactly, DOCS must show to meet this burden. Pro Se Vol. 14 No. I Page 13 Pauliajoute involved an inmate, PauUajoute, charged with assaulting several officers. Prior to the incident, corrections officials had observed him behaving in a bizarre manner. At his subsequent disciplinary hearing, a C.O. testified that he went to PauUajoute's cell twice to tell him that he would be escorting him to the Tier III hearing, but that on both occasions Pauljajoute refused to come out of his cell. The hearing offi.cer asked the C.O. if the inmate had been advised that ifhe didn't attend the hearing it would be held without him and the C.O. responded affirmatively. The hearing officer then asked the e.o. whether he had concluded that the imnate was oriented, awake and understood, and once again the C.O. responded yes. The hearing offieer then concluded that Pauljajoute had waived his right to attend, held the hcaring in-absentia, and found the inITIatc guilty ofthe charges In court, Pauljajoute argued that the hearing officer's brief interview with the C.O. was not a sufficient basis upon which to conclude that he had made a knowing and voluntary waiver of his right to attend the hearing. Specifically, he argued, DOCS had failed to show that he understood the consequences ofhis failure to attend. This was particularly significant because there was some evidence in the record that he was suffering from a serious mcntal illness at the time the incident occurred, and thus might not have understood what he was waiving. The court, however, felt that the hearing officer had done enough: "There is no requirement that a Hearing Officer pcrsonally interview an inmate before concluding that such imnate has made a knowing, voluntary and intelligent waiver of his or her right to attend a disciplinary hearing." The record before the court demonstrated that the C.O. attempted "to persuade [the inmate1to attend the hearing." The court was thus satisfied that "the Hearing Officer conducted a sufficient inquiry prior to determining that petitioner had made a valid waiver of his right to attend...." In Rush v. Goord, as in PauHajoute, a CO testified that he had gone to imnate Rush's cell to bring him to the hearing, but that the inmate had refused to eome out. Unlike Pauljajoute, the hearing officer in Rush stated that he, too, had gone to imnate Rush's cell and told him he was holding a Tier III hearing on the charges but "Rush refused to come out of his cell to attend his hearing." Thc court found for Rush, holding: "Even assuming that a correction officer and the Hearing Officer advised petitioner that his disciplinary hearing was about to commence and that petitioner indecd rcfused to attcnd, there is absolutely no indication in the record that petitioner was advised of his right to attend such hearing and of the consequences of his failure to do so." It is hard to square these two results. The court's finding in Rush that the record contained no indication that the imnate was advised ofhis right to attend the hearing or of the consequences of his failure to attend was ccrtainly correct. However, there was also no such indication in the record in the PauHajoute case. Further, it appears that the hearing officer in Rush, by personally going to the inmate's cell, made more ofan effort to bring the imnate to the hearing than did the hearing officer in PauHajoute. Finally, in the PauHajoute case, unlike the Rush case, there was a serious question as to whether the inmate would have been capable of understanding the consequcnces of his refusal to attend even if it had been explained to him. It is thus diffi.cult to understand why the eourt ruled for the inmate in Rush, but against the inmate in Pauljajoute. These inconsistent deei~ions leave a significant question in their wake eoncerning exactly what it is DOCS Pro Se Vol. 14 No.1 Page 14 must do to establish that an inmate has genuinely waived his right to attend a hearing. Note: The inmates in both of these cases were represented by PLS. In Pau!iajoute,PLS .filed a Motion .for Leave to Appeal to the Court ofAppeals. The motion was denied. Employee Assistance: Required In Some Cases, Not All Matter of Miller v. Goord, 767 N.Y.S.2d 704 (3d Dep't 2003) Matter of Krall v. Inmate Disciplinary Programs, 766 N.Y.S.2d 153 (3d Dep't 2003) In Wolffv. McDonnell, 418 U.S. 539 (1974) the Supreme Court held that prisons are not required to provide attorneys to inmates facing prisondisciplinary proceedings, even when additional prison time may result. The Court went on to say, however, that where the inmate is illiterate, or where "the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the ca~e," he should be allowed to have assistance from staff. DOCS' regulations provide that an inmate shall be given an employee assi&1ant if he is illiterate, non-English speaking, sensorially disabled, charged with drug use as a result of a urinalysis test, or eonfmed pending his hearing. Beyond that, the question of whether to grant an aqsistant is within the discretion of the hearing officer. 7 NYCRR §251-4.1. Two recent cases emphasize that the "right to assistance" is not absolute. In Krall v. Selsky, the inmate was charged with violating prison rules prohibiting the use of controlled substances after a urine test turned up positive. At the disciplinary hearing he complained that he had not received employee assistance. Instead ofadjourning the hearing to provide the assistance, the hearing officer continued the hearing and provided the inmate with some ofthe documentation he had requested. The court found tins to be insufficient. "[G]ivcn the total lack of employee assistance and the nature of the charges, we find that the hearing should have been adjourned in order to provide [the inmate] with the aqsistance to which he was entitled in order to aide in the preparation of his defense." In Miller v. Goord, however, the court reached a different result. Miller involved charges that tbe inmate had failed to follow various direct orders. Nothing in the reeord indicated that he was either illiterate, nonEnglish speaking or scnsorially disabled. He was not charged with drug use based on a urinalysis test nor was he eonfined to his cell. The court concluded that the charges were not complex and the inmate had not been prejudiced by the lack of an assistant. Under those circumstances, the court held, there was no error in the hearing officer's decision not to grant the inmate's request for an a~sistant. Confidential Information: Hearing Officer Fails to Assess Reliability of Confidential Informant Matter ofGantt v. Girdich, 766 N. Y.S.2d 615 (3d Dep't 2003) Inmate Gantt was found guilty of destroying state property after a correction officer discovered sand in the oil pans of several facility Iawnrnowers. The charges were based solely on the testimony ofa confidential informant. Courts have held that the testimony of a confidential informant will support a determination in a prison disciplinary hearing so long as the record shows that the hearing officer had some basis for determining that the Pro Se Vol. 14 No.1 informant was credible and reliable. Here the court found that, although the hearing officer personally interviewed the infonnant, he fdiled to adequately assess his credibility and reliability. The infonnant's allcgations were "insufficiently detailed," held the court, and the circumstances in which they were made "raise[d] serious suspicions rcgarding [the infomlant's] reliability." Furthcr, the hearing officer "fail[ed] to ask general questions reflecting on credibility [or] to address possible motives for false testimony which were raised by another witness." Under those circumstances, held the court, the informant's evidence was insufficient to support the detennination of guilt. Contraband: Chopstick Not Contraband, But Weapon Matter of Zhang v. Murphy, 766 N.Y.S.2d 633 (3d Dep't 2003) Inmate Zhang was found guilty of violating disciplinary mles prohibiting the possession of contrahand or of weapons after a sharpened chopstick was found in his cell. On review, the court found that the chopstick was not contraband - nothing in DOCS' regulations prohibits the possession of chopsticks - but that there was substantial evidence that, because it had been sharpened, it was intended to be used as a weapon. The court also rejectcd petitioner's assertion that he should have been provided with a Chinese interpreter at his diseiplinary hearing, holding that he was "sufficiently fluent in English to understand and knowledgeably participate in the diseipliuary hearing." Religion Held No Excuse Foi' Contrabtmd Matter of Rivera v. Goord, 767 N.Y.S.2d 701 (3d Dep't 2003) Petitioner in this case was found in violation of disciplinary rules prohibiting the possession of alcohol. After a strong odor of fennentation was detected emanating from his locker, a search disclosed two hollowed-out apples in a styrofoam eup, each containing an amber liquid that smelled strongly of alcohol. At his diseip1inary hearing, petitioner conceded that the apples were his but asserted that he had hollowed them out and filled them with honey as part of a religious ritual that he practiced as a member 0 f the Santeria faith. Neither the hearing officer nor the court bought tbe defense. The court first held that the petitioner's claims merely presented an issue of credibility which the hearing officer was free to reject. It then went on to point out that an alleged infringement upon an inmate's religious practices would not, in any event, be sufficient in and 0 f itself to excuse the violation ofa prison disciplinary rule. Where Contraband Not in Inmate's "Substantial Control," Court Finds Insufficient Evidence Matter of Price v. Phillips, 770 N.Y.S. 882 (2d Dep't 2003) A prison disciplinary hearing must be supported by "substantial evidence." In order to sustain a detennination of guilt, a court must find that the disciplinary authorities offered "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate mct" (see People exrel. Vega v. Smith, 66 N. Y.2d 130, 139). Pro Se VoL 14 No.1 Page 16 In this case, inmate Price was charged with possession of a controlled substance and the unauthorized possession of money after both items were found ina pill case adjacent to his cell. While the pill case was accessible to Price, it was also accessible to other inmates on the cell block. The court concluded that under these circumstances there was insufficient evidence in the record to connect the petitioner to the contraband, or upon which the hearing officer could conclude that the petitioner "substantially controlled" the area in which the contraband was found. Consequently, the court vacated the disciplinary hearing. Substantial Evidence: Circumstantial Evidence Is Enough in Assault Case Matter ofHernandez v. Selsky, 764 N.Y.S.2d 663 (3d Dep't 2003) Inmate Hernandez was charged with violating prison disciplinary rules prohibiting fighting, violent conduct and assault, following an investigation ofan incident in which he was found with severe lacerations and wounds, staggering down a walkway leading to the law library. A search of the area uncovered weapons consistent with both Hemandez's injuries and those of another inmate in the law library. At the hearing, the hearing officer reulSCd to credit Hernandez's assertions that he did not recognize his attacker and that he was acting in self-defense, and found him guilty. Hernandez filed an Article 78 proceeding to challenge the hearing result. The court ruled that there was sufficient circumstantial evidence to support the hearing officer's conclusion that Hernandez was guilty: both inmates were in the same hallway at the time ofthe assault, they were each assaulted at approximately the same time, each suffered slashing type injuries, no other inmates in the area were wounded, weapons found in the area were consistent with the injuries and, finally, a confidential infom13nt provided a motive for contention between the two inmates. Other State Cases F.O.I.L. DOCS Ordered to Give Inmate Records Qf I. G. Investigation Matter ofBeyah v. Goord, 766 N.Y.S.2d 222 (3d Dep't 2003) In a significant win for inmates, New York's intermediate appellate court held recently, in a 5 - 0 decision, that substantial portions ofthe Inspector General's (IG) file of an investigation of an inmste's allegations of brutality should be available for inspection by inmates and the public under the state's Freedom of lnfomlation Law, or "FOIL" (Public Officer's Law Art. 6). DOCS has long resisted such disclosure, arguing that the IG's file should be exempt from disclosure under one or more of the exemptions to disclosure set forth in Public Officer's Law § 87(2). lbe petitioner, inmate Abdul Beyah, was involved in an altercation with COs at Auburn Correctional Facility as a result of which he suffered renal failure, fractures ofhis eye orbits, and other severe injuries. The In.~pector General's office investigated the incident. Beyah subsequently requested the record ofthe 1. G. ' s investigation under FOIL. DOCS denied the request and Beyah filed an Article 78 proceeding challenging the denial. The lower court upheld DOCS' denial, but Beyah appealed. The state Appellate Division Pro Se Vol. 14 No. I Page 17 reversed the lower court and held that the majority of the documents Beyah requested should be disclosed. The court held that state agencies should operate under the presumption that their records are available for public scrutiny and that the exceptions in FOIL are to be "narrowly construed." The court specifically held that the following documents should be released: Employec Accident Reports. These are reports ofinjuries suffered by correctional officers in an incident. DOCS argued that they should be excmpt from diselosure because they were either "medical histories" or because their disclosure would constitute an "IUlwarranted invasion of personal privacy." The Court disagreed. "[N]otations contained within the accident reports. . . which describe the general nature of the correction officers' ~juries sustained in the incident, ifany, do not reveal details ofany existing medical condition and, therefore eannot reasonably be considered a relevant and material part of each officer's medical history." Employee Interviews: These are notes - or sometimes verbatim transcripts - of the IG's interviews with DOCS employees regarding an incident. DOCS argued that these notes should be exempt from disclosure IIUder Civil Rights Law § 50-a(1). That statute deems "personnel records used to evaluate performance toward continued employment or promotion. . . .of correction officers" confidential and thus, DOCS argued, prohibits their disclosure. The court disagreed. According to the court, DOCS "offered no evidence establishing that the interviews are relied upon in evaluating employee performance...." DOCS also argued that disclosure of employee interviews should be prohibited because "they were compiled for law enforcement purposes and, if disclosed, would reveal confidential information or confidential investigative techniques or procedures. The court's in camera review led it to conclude otherwise. It found that there was nothing in the information which was confidential or which revealed "any nonroutine criminal investigative techniques or procedures." Report of Complaint Progress and Index Sheets and Receipt ofComplaint: Thesc documents detail the steps the IG has taken in his investigation. DOCS again argued that disclosure of these documents would reveal non-routine criminal investigative techniques or procedures. The court explained that in dete~ whether an investigative technique is non-routine one must consider "whether disclosure ofthose procedures would give rise to a substantial likelihood that violators could evade detection by deliberately tailoring their conduct in anticipation of avenues of inquiry to be pursued by agency personnel." The court fOllUd that none of the documents in question in this case set forth methods of inquiry beyond what is typical in a routine investigation. Employee Training Records: The court acceptcd DOCS' argIIUlent that employee training records are personnel records within the meaning ofCivil Rights Law §50-a(I), but ordered them disclosed nonetheless, on the gronnd that DOCS had failed to adequately demonstrate that there was a "substantial and realistic potcntial... for [their] abusive use" against the officers. Prison Directive No. 4901: The Court ordered diselosure of this Directive, which relates to the maintenance of!og books, since DOCS was U11able to demonstrate that such disclosure posed any chance of danger to the safety and security of DOCS persoUllel. The court did reject disclosure of one set of documents, those that would have shown the job assignments ofCOs throughout the fucility. DOCS argued that disclosure of these records could threaten institutional Pro Se Vol. 14 No. I Page 18 security, and the court agreed. The court aJ.~o ordered that, in all disclosures, DOCS would be required to redact personal infommtion, such as home addresses and social security numbers. The court did not discuss whethcr DOCS should be required to diselose the IG's investigatory conclusions under FOIL. It appears that the inmate did not request the IG's conclusions in this case. Parole Crime Victim Lacks Standing to Challenge Grant of Parole In the Mattcr of John Hancher v. Travis, 1 Misc. 3d 903 (Supreme Ct., Westchester Co., 2003) Whcn an inmate challenges a parole denial he typically argues that the Parole Board failed to properly consider the statutory guidelines for parole set forth in Executive Law § 259-i, that the conduct of the hearing violated lawful procedures and/or that the decision was "irrational bordering on impropriety." This case presents an ironic twist on that pattern: In this case, a crime victim sued the Parole Board arguing that it had failed to properly consider the statutory guidelines and acted irrationally when it granted parole. The case is a spin off of the ongoing saga ofKathy Boudin. Ms. Boudin, a member of the radical Weather Underground in the Sixties, was convicted of participating in a 1981 robbery in which two police officers were killed. She became eligible for parole in 200 I. Despite an unblemished prison record, her parole was politically contentious: Governor Pataki and the Police Benevolent Association, among others, opposed it. After being first denied parole in 2001 she filed a successful Article 78 proceeding challenging the denial: The court concluded that the Board's denial of parole was irrational and improper. Ms. Boudin was granted parole by a subsequent Board in the summer of2003. John Hancher, a relative of one of deceased police officers, then sued the Board, arguing that the Board's grant of parole was irrational and improper. The court rejected the suit, holding that crime victims do not Ilave standing to challenge the parole board's actions. "Standing" is a legal concept referring to the right to bring a lawsuit in the first place. In order to have standing to sue, a litigant must show that the action over which he is suing will have a harmful effect upon him which is different lTom that suffcred by the publie at large. Here, the court found, while a crime victim may be more emotionally affected by the crime than a member of the general public, tllat increased emotional effect is not sufficient to confer standing to challenge the Parole Board's actiolls. Moreover, the court tound, even ifMr. Hancher did have standing, there was no mcrit to his suit. The court found that all of the statutory factors set forth in Executive Law § 259-i had been properly eon.~idered by the Board. Further, while Hancher argued that Boudin had failed to admit her guilt at the hearing and attempted to justify her acts, the transcript of the hearing proved otherwise: Boudin explicitly accepted her responsibility for the deaths of the two police officers and expressed profound remorse. Pro Se VoL 14 No.1 Page 19 Family Reunion Program Courts Side With DOCS On Denial of Family Reunion Visits Matter of Rosas v. Baker,766 N.Y.S.2d 612 (3d Dep't 2003) MatterofCouserv. Goord, 766N.Y.S.2d 461 (3d Dep't 2003) DOCS' Family Reunion Program (FRP) permits inmates to spend extended periods oftime with family members in private trailers on prison grounds. Courts have historically granted DOCS wide discretion to decide who can and cannot participate in the FRP, as these two cases demonstrate. In Rosas v. Baker, inmate Rosas applied to participate in the FRP with his wife. His application was supported by both his guidance counselor and by the superintendent of his facility. The Family Reunion Coordinator, however, recommended that the application be denied because he felt Rosas should complete sex offender counseling prior to being permitted to participate in thc FRP. Rosas appealed, but DOCS' central office upheld the decision of the Family Reunion Coordinator citing, among other things, the nature of Rosas' crime as well as the "[s]ensitive nature of the [FRP] to the participation of sex offenders." Rosa~ then brought an Article 78 proceeding to challenge the denial TheJower court ruled in his favor. That court held that DOCS had failed to articulate an adequate connection between his status as a sex offender and his application to visit with his wife "such that valid security or other identifiable concerns militate[d] against [its] approval." DOCS appealed, however, and the Appellate Division reversed. Participation in the Family Reunion Program is not a constitutionally protected right, the court stated: "As long as [the program] is implemented in a reasonable manner, consistent with the inmate's status a~ a prisoner and the legitimate operational considerations of the institution, it will withstand judicial scrutiny." Here, the court noted, one of the FRP's regulations specifically cautions that "active participation [or] completion" of a progranl may be required as a precondition to participation. See 7 NYCRR §220.2(a)(3)(iii). Since that was precisely one of the reasons given by DOCS for refusing to allow the inmate to participate, and since the decision wa~ not otherwise irrational, the court upheld the denial. The inmate in Couser v. Goord had been convicted ofmurder and sentenced to life without parole. He married while incarcerated and subsequently applied to participate in the FRP with his wife. DOCS denied the application on the grounds that his crime was of a "heinous nature" and the inmate sued. The court upheld DOCS' decision. The FRP regulations specify that one of the factors DOCS must consider in deciding whether to grant an FRP application is whether the inmate has been convicted of "heinous or unusual crimes." 7 NYCRR §220.2(e)(1 )(iii). Here, the court found that the inmate's crimes were "egregious." Moreover, the court found, his participation in FRP could not further the program's goals of"sustaining family tics that have been disrupted as a result of incarceration" because his marriage occurred after he had been incarcerated and, in view of his sentence, he will never return to society. Under those circumstances, the court held, DOCS' decision was not irrational and would therefore be sustained. Sentencing New York High Court Affirms Appellate Division : DOCS Not Free to Disregard Commitment Order In Computing Inmate's Sentence Matter ofMurrayv. Goord, 1 N.Y.3d 29, 769 N.Y.S.l65 (2003) In a decision issued last year, the Appellate Division held that DOCS was wrong in concluding that a new sentence under which Pro Se Vol. 14 No. I Page 20 petitioner Murray was incarcerated was illegal and, even if it was not wrong, it was not free to simply ignore a lawfully issued commitment order. Murray v. Goord, 701 N.Y.S.2d 426 (3d Dep't 2003). (Pro Se reported on this decision in our Winter, 2003 edition.) Since we reported on this decision DOCS appealed to the Court of Appeals, the State's highest court. That Court has now uphcld the Appellate Division, holding: "DOCS is not frec to disregard a commitment order. [PJrison officials are conclusively bound by the contents ofcommitment papers accompanying a prisoncr....DOCS's only valid option in circumstances such as these is to comply with the plain terms of the last commitment order reccived." This is a significant win for inmates on an issue that has been debated for many years. Ordinarily, when a person is sentenced to prison, the sentencing court drafts a "commitment order" specifYing how the sentence is to run. For example, ifthe sentence is to run concurrently with an earlier sentence, the commitment order will say so. DOCS is required to carry out the terms of the commitment order. From time to time, however, DOCS will receive a commitment order which, for one reason or another, it concludes is illegal. Frequently, in such cases, DOCS will simply disregard the commitment order and calculate the sentence in the manner it believes the law requires - often to the detriment of the inmate whose sentence is being recalculated. For example, DOCS may run sentences consecutively which the sentencing court has ordered be run concurrently. That is essentially what happened in this ease. 'nle facts in Murray were these: inmate Murray received a sentence of7 Y, to 15 years for criminal sale ofa controlled substance. One year later, he received a second sentence of7 y, to 15 for manslaughter, which the judge ordered to run consecutively to the controlled substance charge. On appeal, the drug conviction was reversed and remanded for a new trial, but the manslaughter conviction was upheld. Murray then pled guilty to the drug charges in exchange for a sentence of 7 Y, to 15 years to nm concurrent to, rather than consecutive to, the manslaughter sentence. He thus had two contrary commitment orders, one from the judge on his manslaughter case ordering that the sentences run consecutively, and a second, later order, from another judge, that the sentences run concun·ently. Once in State custody he learned that DOCS had concluded that the second commitment order - the one ordering the sentences to run concurrently - was illegal. DOCS felt that the judge did not have the legal authority to essentially overrule the commitment order of the earlier judge. It therefore ignored that judge's commitment order and calculated thc sentences consecutively, not concurrently. The Court ofAppeals has now r"iectcd both DOCS' substantive position on the sentence and its tactics. Regarding the substance, the Court held that the latest commitment order controls the sentences. Regarding tactics, the Court held that DOCS is not free to simply decide for itself which commitment order controls. Court of Claims Medical Malpractice: Court Orders State to Pay Inmate $800,000 After DOCS Fails to Diagnose Cancer Zacchi v. State of New York, N.Y. Ct. CI. (Claim No. 102854) Inmate Ronald Zacchi was serving a 2 to 6 year sentence at Governeur Correctional Facility when, in 1998, he began experiencing discomfort in his throat. Between April of 1998 and August of 1999 he was seen by fucility nursing staff26 times, staffphysieians 10 times and other physicians 24 times. He was routinely treated with throat lozenges, antibiotics and other remedies directed to address his sore throat. This treatment, although ineffective, was continued for seven Pro SeVol. 14 No. I Page 21 months. It was not until a ma~s in Zacchi's throat became obvious that a correct diagnosis - cancer ofthe larynx - was rendered. By that time, the only remedy was to remove the larynx, a radical and life-altering surgery. Zaachi sued DOCS, claiming medical malpractice. The court found that DOCS' treatment of Zacchi was negligent. "It is clear from the medical records that the staff at Governeur believed [Zaeehi] to be a chronic complainer, and they may have given little weight to some of his complaints for that reason....Even true hypochondriacs can become ill, however, and [Zacchi's] many significant warning signs of cancer should not have been ignored," held the court. Of particular concern to the court was the conduct of a nurse, Denise Congleton, whose "testimony was not always consistent," and the testimony of Doctor Robert Kasulke, which the court found "particularly troubling" for its "cahn acceptance of the fact that he never used a pharyngoscope to investigate any possible abnormality" in Zacchi's throat. A medical expert testified that ifZacchi's cancer had been detected at least a year earlier, the laryngectomy would not have been necessary. "This case," held the court, "is analogous to the fable of a boy who cried wolf too many times and then was disbelieved when the wolf was present," wrote the court. "Unfortunately for the defendant, the wolf has always been there." The court held DOCS wholly liable for the medical malpractice and awarded Zacchi $400,000 Jbr past pain and suffering and $400,000 for future pain and suffering. This case has not been reported in the state reporter system. DOCS Found Liable for Unauthorized Disclosure of Medical Records Davidson v. State ofNew York, _ (3d Dep't 2004) N.Y.S.2d Imnate Davidson brought a medical malpractice claim against the State in the Court of Claims, claiming that he had been given incorrect medication by prison staff. During discovery he learned that DOCS had released his medical records to the Attorney General's office, which was representing the State in his claim. He then brought a separate action in the Court ofClaims claiming that the State had violated the physician-patient privilege by releasing his medical records without either his authorization or a court order. DOCS argued that the release of Davidson's medical records was authorized by 7 NYCRR § 5.24[b]. That section provides that medical records may be released to certain categories of persons, including "a judicial or administrative bodyor officer befbre which the physical or mental health of an inmate is in issue" but "only if a court has issued a subpoena or other court order...specifically demanding the production ofmedical records." The Court ofClaims concluded, however, that the medical records DOCS had released included records that were unrelated to the malpractice claim and, moreover, the Attorney General had not obtained a court order directing their release. The court therefore concluded that the release of the records had violated Davidson's rights and it awarded him $500.00. DOCS appealed. On appeal, DOCS argued that the release was authorized by Public Health Law § 18. That section pennits health care providers to disclose "personal notes and observations" regarding a patient to au attorney consulted by the health care professional, without them becoming accessible to the patient. See Public Health Law § 18(1)(e)(ii). The appellate court disagreed. The court concluded that that provision "does not constitute a blanket authorization for the release ofpatient medical records to a health care provider's attorney." Accordingly, the court affirmed the award of the lower court. No citation was availablefor this case at the time ofpublication. Pro Se Vol. 14 No.1 Page 22 Family Court Failure to Maintain Contact With Children Results In Loss ofParental Rights Matter of Doral R, Erie County Department of Social Services v. Anthony R, Sr., 769 N.Y.S.2d 805 (4th Dep't 2003) Annette B.. Orange County Department of Social Services v. Joseph B., 769 N.Y.S.2d 587 (2d Dep't 2003) These two cases, both decided in the last quarter of 2003, illustrate the consequences that incarcerated parents risk when they fail to maintain contact with their children. In both cases the court upheld decisions ofthe Department ofSocial Services (DSS) to terminate thc parental rights of an incarcerated father. In Doral B., DSS petitioned to terminate the parental rights of both parents after the mother voluntarily surrendered her rights. DSS argued that the consent of the father was unnecessary because, it said, he had not maintained sufficient contact with the child while he was incarcerated. After the ruther wa~ released from prison he sought custody of his child. He argued that the prior termination of his parental rights was invalid. The court disagreed. Because the father had fuiled to maintain "substantial and continuous or repeated contact with his child" during his incarceration, termination ofhis parental rights was appropriate. The court noted that the father had never paid child support and had failed to establish that he was in regular communication eithcr with the child or the person or the agency having care or custody of the child. It held that the father's incarceration was not an excuse for his failure to maintain communication. The Annette R case is somewhat more complicated. In this case, the father was in regular contact with his daughter from at least the time 0 f her birth, in 1991, until he was incarcerated, in 1996. While he was in prison, however, the mother moved, taking the child with her, and failed to tell either the father or anyone related to him ofher whereabouts. She subsequently surrendered the child to thc Orange County offi.ce of the DSS. Although DSS knew that the father was incarcerated, it did not notiJy him that the child had been placed in foster care or that the mother had surrendered custodial rights. The agency subsequently pctitioned to tenninate the father's parental rights on the ground of abandonment. The law requires that in order to establish abandonment DSS must show that in the six months prior to the filing ofthe petition the parent ha~ "evidenced an intent to fort~go his parental rights ...as maaifested by his failure to vi~it the child and communicate with the child or agency, although ablc to do so and not prevented or discouraged from doing so by the agency." Social Services Law § 384-b(5)(a). At a hearing on DSS's motion, the father testified that he had tried to locate his child by a~king the child's maternal grandmother to tell him where the mother had moved to, but that she told him that she did not know. He also stated that he had asked his own mother to make inquiries with the DSS office in Suffolk County, where the child's mother had last lived, but that DSS refused to cooperate, apparently on grounds of confidentiality. The majority ofthe court found these efforts on the father's part were insufficient. They were "sporadic and minimal," according to the conrt, and not adequate to excuse the ruther's failure to maintain contact. One judge dissented. That judge argued that, as a practical matter, there wa~ little more that the TIlther could do from prison. He did not know where the child's mother had taken her. The child's maternal grandmother either could not or would not help him find her. The Suffolk County office of DSS would not cooperate with inmate's mother's efforts to obtain information, and the Orange County office had failed to notiJy the inmate when the child was placed in foster care - which failure, according to the Pro Se Vo\. 14 No.1 Page 23 dissenting judge, constituted a violation of DSS's legal obligations. III light ofthese facts, the dissent felt, it was primarily DSS's fault that the inmate had been unable to maintain contact with hi~ daughter. DSS had "effectively prevent[ed] him from communicating with [the child]" by failing to notifY him when she wa~ placed in foster care. That argument, however, was not sufficient to sway the majority of the court, which found that the futher should have done more. Article 78 Proceedings: Don't Forget to Serve the Order to Show Cause The Article 78 proceeding is the principal means by which inmates bring lawsuits in state court when they want to challenge some decision or action of the Department of Correctional Services. The proceeding gets its name from the place where its uses and procedures arc spelled out in New York's Civil Practice Law and Rules, or "CPLR." Thus, it can be found at Article 78 of the CPLR. Prisoners' Legal Services has a memo, withfomas, on howto file an Article 78 proceeding and inmates contemplating filing such an action should request a copy of our fonn memo. This article addresses one common mistake made by inmates in pro 5e Article 78 proceedings that can result in confusion, delays, and even a risk that the proceeding will be dismissed. This mistake occurs in connection with the service ofwhat is called the Order To Show Cause. A pro 5e inmate Articlc 78 is connnenccd by filing an Order To Show Cause, or ose, with the court, together with a Petition and other supporting documents. The OSC that you send to the court, however, is not an actual OSC, but only a proposed OSC. That is, the ose that you send to the court does not become an actual order of the court until and unless it is accepted, completed, and then signed by the judge. Remember, only a judge can issue an order, including an OSC. An ose is addressed to the respondent(s) - the person or persons you are bringing the Article 78 against - telling them that they have been sued, briefly what they have been sued about, and ordering them to "show cause" at a specific time and place (called the "return date") as to why the relief you are seeking should not be granted. Since the OSC is addressed to respondents, it must be served upon them, as well as upon the Attorney General who will represent them. The proposed OSC that you send to the the court will have blank spaces for the court to fill in both the return date and the date by when you must serve copies of that OSC, along with the Petition and other supporting papers, upon the respondent(s) and the Attorney Genera\. If the court accepts your papers, the judge will fill in the blanks on the ose, sign it and then return it to you tor service. Be aware that many courts often will not even use the proposed OSC you send them, and instead have and will use their own OSC form. Once the court sends you the signed ose, it is then your responsibility to serve copies of it as directed by the court which typically requires serving the papers (by mail) upon the respondent(s) and the Attorney General. You must do this by the deadline given to you by the court in the OSC. Finally, after service you must then tile with the court proof of such service (called an "affidavit of service"). The common mistake occurs where an inmate serves respondent(s) and the Attorney General with copies of the proposed OSC, instead of with copies oCtile actual OSC signed by the judge. This usually occurs where inmates simply serve respondent(s) and thc Attorney General with copies of everything they file with the court, at the same time they file them with the court. Serving copies of a proposed OSC serves no purpose at all. Any fuilure to serve the respondent(s) and the Attorney General with copies of the actual signed OSC and/or to file an Affidavit of Service swearing that you served copies ofthe actual signed OSC means you have not propcrly complied with the rules. It is easy to avoid this mistake if you just always remember that you do not need to serve anything upon the respondent(s) and the Attorney General at the time you first send your papers to the court. Instead, always wait until the court accepts your papers, signs the asc, and sends that signed asc back to you for service. If you follow these four basic steps you should not have a problem: (I) (2) File your papers with the court, which includes a proposed asc; Wait for the court to send you an actual completed and signed asc, (3) (4) directing you to serve the respondent(s) and the Attorncy General by a certain date; Comply with the asc by fi>lIowing the directions on the signed asc which typically require serving (by mail) copies ofthe actual signed asc, along with copies of your Petition and other supporting papers, upon the respondent(s) and the Attorney General; and File an Affidavit of Service with the Court, to prove that you properly complied with the above, that you completed service in a timely manoer. Subscribe to Pro Set Pro Se is now accepting individual subscription requests. With a subscription, a copy ofPro Se will be delivered directly to you. There is no charge for a subscription to Pro file. To subseribe, send a subscription request with your name, DIN number and facility to: Pro Se, J 14 Prospect Street, Ithaca, NY 14850. Please send only subscription requests addressed in this way. Do not send requests for legal assistance, or any documents, to the Pro Se address. Pro Semail is handled differently than legal mail and sending requests for legal assistance to Pro Se will delay the response time. For all other problems or requests for assistance, write to Cenlrdl Intake, Prisoners' Legal Services, 114 Prospect Street, Ithaca, New York 14850. EDITORS: JOEL LANDAU, ESQ., KAREN MURTAGH-MONKS, ESQ. CONTRIBUTORS: TOM TERRllll, ESQ., MICHAEL CASSIDY, ESQ., BETSY STERLING, ESQ. COPY EDITOR: ALETA ALBERT PRODUCTION: FRANCES GOLDBERG EDITORIAL BOARD: TOM TERRIZll, ESQ., BETSY STERLING, ESQ., KAREN MURTAGH-MONKS, ESQ. Pro Se is printed and distribntedfree through a generous grantfrom the New York Bar Foundation.