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RECEIVED NOV 05 2003 PLSNV·AlBANY , VoL 14 Number 3: October 2004 Published by Prison"",' Legal Services of New Yorl< '" SECOND CIRCUIT ISSUES: SEVEN LANDMARK DECISIONS IN FA VOR OF PRlSONERS Second Circuit Finds in Favor ofPrisoners in Six PUlA Exhaustion Ca.ves The United States Court of Appeals for the Second Circuit recently decided six prisoner cases, all involving different aspects of the PLRA exhaustion requirement. All six cases were decided unanimously in favor ofthe prisoners. In five of the dl-'Cisions, a single panel ofthree judges made it clear that there are limitations on DOCS' ability to use the PLRA exhaustion requirement as a defense to prisoner cases. [n the sixth case, a different panel found that the prisoner-plaintiff had demonstrated sufficient justification for not exhausting. Judges Calabresi, Sack, and District Judge Pauley, sitting by designation, decided the five cases, Judge Calabresi writing three decisions and Judges Saek and Pauley each writing one. Collectively, these cases reject the "strict complianee" and "total exhaustion" rules that have been embraced hy some court~, acknowledge that threats of rctaliation may estop DOCS from asserting a failure to exhaust defense, and hold that "available" administrative remedies have been exhausted if a prisoner receives a favorable resolution of a grievance at any level. Metropolitan Detention Center (MOC) in Brooklyn, New York, when he was attacked by another inmate, who plunged a tile cutter into his neck and slashed his amde continued on }XJge 2... Also Inside... Sim v. Morton, DOCS Loses Qualified Immunity Defense in Due Proce£s Inadequate Notice Case . . . . . . . . .. page 8 "Il...tricte<l Diet" DOCS Loses Ground . . . . . . . . . • .. page 16 Sex Offender Treatment Programs When do They Violate the Fifth Amendment? . . . . . . . . . . . . .. page 18 Hepatitis C Court Upholds DOCS Guidelines. .. page 19 "Five Perc,eoters" DOCS Issue. New Proloools , page 20 People v. Richardson: Are you Entitled 10 Prior Sentence Credil? .. page 31 Subscribe 10 Pro Sel See bod page for tktfJils Jolmson v. Testman,- - -F.3d- - -, 2004 WL 1842669 (2d Or.) (August HI, 2004) Plaintiff Johnson was incarcerated at the TItIs pro}«t Is _""tl by 01fl'01'l_tlby tire New York Stole _ . ofCrimfNd J__ Senlces. F'tJIms ofl'lew 111 tIlls _ _ ore __ oftire """"" tutti tID lOOt ""ca.oriIy repres_m tire ojJIcWpcsIdo. or [Wilda oftire Dlvlslo. ofCrimfNd J_ _4 Pro Se Vol. 14 No.3 POliO 2 .. .artick Mnti11Jiedftvm p{{~, 1 face and upper torso. The attack was allegedly incited by a correction officer, defendant Testman. Prior to the attack, Johnson was in !be barber shop demollStrating a type ofhaircut to one ofthe barbers. When Officer TestnlJin saw Jolmson with the bair clippers, he asked Johnson what he was doillg and, after hearing the reply, told the inmates that he was closing the harbershop for the day. Apparently, when Testman was asked hy another inmate why the barher shop was closed and he couldn't get his hair cut, Testman said, "ifyou bave a problem 'with not being able to get a haircut, take it up with Johnson.''' Soon thereafter, Johnson was attacked by this inmate. Later that same day, a second defendaot, CO James, apparently cuffed Johnson behind his back and left him in a cell for seven hours. JohllSon was charged with fightillg and placed in the SHU to await a disciplinary hearing. At the hearillg, Johnson described the circum~tances surrounding the attack, but nevertheless was found guilty and sentenced to an additional21 days in SHU, 30 days loss of good condnct time, and one year's loss of visiting and commissary privileges. Johnson appealed the disciplinary disposition, again recounting Testman's conduct, and when his appeal was denied, he sought review by the Bureau of PriSOIlS' (BOP) Central Offiee. The Central Office found in Johnson's favor and remanded the ease to the MDC for a new hearing. Johnson's claims against defendant James eentered around the allegation t1lat James had left him cutfed behind his back ill his cell for seven hours. Johnson alleged tIlJltJames then issued a misbehavior report charging him with refusing to obey a staff order, wherein James alleged that Johnson had refused to he rear-cutfed. After heing t(mnd guilty of the charge and being given a penalty ofa 30·day loss of visitillg and commissary privileges, Johnson appealed. His appeal was denied by the facility warden, but when he sought review from the Northeast Regional Offiee, his appeal was granted 10 the exteut that MDC was directed to conduct a further investigation. MOC failed to do so and Johnson subsequently filed another appeal with the Regional Office, which then elected to expunge the charges based, among other things, on laek of sufficient evidence. Johnson sued both Testman and James, who responded by filing a motion to dismiss, or in the alternative, a motion for summaryjudgment, alleging the defellSe of qualifil"A1 immunity and tllJit Johnson did not exhaust his administrative remedies with respect to his e1aim against Testman. The district court dismissed Johnson's entire complaint withont prejudiee, finding that he had tailed to meet the PLRA exhaustion requirement JohllSon had argued that defendant James had waived the e.xhanstion issue by failing to raise it, but the court, adoptillg a rule of "total exhaustion," found that "Johnson's failure to exhaust his claim against Otlicer Testman requires that I dismiss the entire case." On appeal, the Second Circuit addressed the following issues: I) whether Johnson's appeal to the BOP exhausted his claims against Testman; 2) whether Johnson's appeal to the regional office was sufficient to exhaust his claims agaillSt James; 3) whether James waived the affinnative defense of failure to exhaust; and 4) whether the PLRA mandates a rule of "total exhaustion.~' Arguing for the plailltiff, Mary Lynne Werlwas of the Legal Aid Society, Prisoners' Rights Project, asserted that ifa prisoner reasonably believes he has properly pursued his complaint, the "exhaustion" requirement should not automatically doom his ease. The Court agreed, holding that a prisoner who may not luwe followod the prison procedure procillely may still meet tile clIllallStion requirement if he Pro , It s.. Vol 14 No. 3 relI.'«lllllbly believoo" he collld Ilroooed a~ be did. The question of whether Johnson was justified in believing that he properly pursued the grievance process was remanded to the district court for a factfmding hearing. With respect to the question of whether Johnson's appeal to the regional office was sufficient, the Court responded by holding that an uncounseled inmate's appeal should be held to no higher a standard than that which is rcquired in the Rules of Notiee Pleadings, which mandate "that a complaint 'must contain allcgations sufficient to alert the defendants to the nature of the claim lIlJd to allow th~'1ll to defend against it.'" Tile Conn set tbe standard to be IIllOO in determining utbe substalllCe of IIll illlllllte's slIbmlll.'linll$ lire .'lutllclcllt III order to llxhall.'lt by stilting thllt "Illn order to exluulIlt, Inllllltes mllSt provide enongb infOfIIIlltio!lllballt the OOndilct ofwhich they oomplain to alinw pn'lOll officials totalw appropmte RSpo!l.'1ive moosu-." Judge Calabresi reasoned that a grievance raises an issue sufficiently to exhaust it as IOllg as the prisoner "object[s] intelligibly to some asserted shortcoming." The Court remanded the case to the district court on this issue also, fmding that the questioll of whether Johnson's disciplinary appeals Were enough to advise the prison administration as to the substance of his complaints was a question of fact that is appropriately addressed by the district court. ne Coun also beld tliat tile eJIllllllIstiOI:! defelL'Ie is au atllfllllltrve d~kllllle wlli~1I eanbe wlllivoo, and that defendallt J _ wlilived the defense by liIilieg to raise it. Since th" question of whether Johnson exhauste.d was remanded to the district court, the Court did not have to address the issue of "total exhaustion," but it noted in a footnote that it had held in the Ortiz case (see below) "that a rule of total exhaustion is not required by thc PLRA, and that exhausted claims may be allowed to proceed while unexhausted claims are dismissed." Pog.3 GiallO v. Goord, _. - F.3d. - -.,2004 WL 1842652 (211 Clr.) (Aug. Ill, 2004) The lawsuit in Giano v. Goord centered around Giano's allegations that certain guards tampered with his urine tests in retaliation for his success in a prior lawsuit and his success in defeating a prior disciplinary charge. Because of the alleged tampering, Giano was charged with, and ultimately found guilty of, a drug-related disciplinary charge. He appealed his hearing, alleging that the charges were retaliatory, but the hearing was affirmed. He never filed a grievlllJce regarding the alleged retaliation. Initially, Giano's case was dismissed by the district court, which found that he had failed to exhaust his administrative rcmedies by L'liling to address complaints of retaliation through thc inmate grievance system. The Second Circuit vacated the district court's d~.cision, holding that the PLRA did not require Giano to exhaust his claim of retaliation becausc such a claim involvcd "individualized retaliatory actions against an ilUnatc" and did not constitute a claim brought '''with respect to prison conditions.''' However, thc Supreme Court then decided Porter v. Nussle, 534 U.S. 12 (2002), holding that rctaliation claims were subjed to the PLRA cxhaustion requirement. Thus, when Giano's case cam" b"fore thc district court for the second time, it was again dismissed for failure to exhaust. Elena Paraskevas -Thadani of Katten, Muchin, Zavis, & Rosenman (Arthur tinkler, also on the brief) presented oral argument on beha If of Giano, and asserted that Giano had properly raised his complaint~ in the context of an appeal from a disciplinary proceeding rather than by filing a separate grievance. The COlin found that tllere are certain "spoeiaJ circulWlta_" in wbich a pnwDcr's fallere to comply with adminilltmtivc proeooumJ requiremeuta may be jutifled. The Pro Se Vol. t4 No. 3 Page 4 court did not provide a broad statement as to what constitute-~ such a justification, but Judge Calabresi, in applying what he called a "reasonably believed" standard, found that the rules governing what issues had to be appealed in a disciplinary hearing versus what issues should be grieved were so unclear that Giano was justified in pursuing his issue through the disciplinary process and not filing a grievance. The Court found that unless, on remand, DOCS indicates that it will allow him to file a late grievance, his case should go forward. Ortiz v. McBride, - - - F.3d - - -, 2004 WI.. 11142644 (2d Or.) (Aug. 111,2004) In Ortiz v. McBride, Ortiz, who was incarcerated at the time at Arthur Kill Correctional Facility, was charged with drug smuggling and sale, based solely on confidential information. He was sentenced to 90days SHU confinement, the first three weeks of which, Ortiz alleged, hc was confmed in his cell for twenty-four hours a day and subject to harsher SHU conditions tban those imposed upon other inmates. Ortiz' disciplinary disposition was ultimately reversed by Donald Selsky, without explanation. Ortiz sued, alleging a violation ofhis due process and Eighth Amendment rights. The defendants moved to dismiss for failure to state a claim and the district court granted the motion holding that, although there may have been an issue with respect to the veracity of the informant, since Ortiz' administrative proceeding had been reversed, he "obtained all that could be obtained on that issue." The court went onto hold that, with respect to Ortiz' complaint rcgarding the conditions of his confinement, since his confinement was only for 90 days, it did not rise to the level of "atypical and significant hardship." Finally, the court held that although Ortiz appeared to have exhausted his "main issue," the evidence before the court was unclear as to wbether he had exhausted "with respect to these other issues." The questions before the Second Circuit were: I) whether Ortiz sufficiently pled a supervisory liability claim; 2) whether Ortiz' factual allegations concerning SHU stated a cognizable due process claim; 3) wbether Ortiz exhausted bis Eighth Amendment claim; and 4) whether the PLRA requires "total exhaustion." Initially, Ortiz conceded that he had not sufficiently pled a supervisory claim, and thus the Court limited its review to the remaining questions. As to the question of whether Ortiz had set forth sufficient allegations to establish a due process claim, thc Court noted that to do so, Ortiz had to establish two things: first, "that hc possessed a liberty interest" and second, "tlmt the defendant(s) deprived him of that intere.~t as a result ofinsufficient process." Ortiz was confined to SHU for 90 days. Although the Court acknowledged that it has held that "with respect to 'normal' SHU confinement," IOI-days does not meet the Sandin "atypical and significant hardship" test, the Court pointed to a number of cases where it has held that the duration of confinement is not the only factor to be considered, "'since especially harsh conditions ~'lldured for a brief interval... might... be atypical.''' The Court went on to hold tlmt smce Ortiz lllleged tlmt he was subjected to oollditioa~ in SHU which were 001 "oormal," (i.e., fol' at lea..~t part of his confinement, he WIIS !rept in SHU fol' 24 lIours a day, oot permitted his one-boul' daily exercise, alld wa~ prevented from slloweriug ilr "'weelill at a time'''), he had sufticienily Illieged tliat the 904ay SHU sentence WIIS "atypicallllld sigllikallt." The Court also found that Ortiz adequately alleged tbat the SHU sentence was imposed without sufficient process by asserting that tile "some evidence" standard was not met. With respect to his Eighth Amendment claim, the Court found that there was no evidence in the record 1'.... Se Vol 14 No.3 that he had exhausted. Although he had complained once orally and alleged that when he did complain he was threatened, the Court held that, unlike the plaintiff in Hemphill he did "not contend that the threats from guards prevented him from filing a grievance or otherwise rendered DOCS grievance procedures unavailable," and thus, he did not exhaust. Beeause the fmding of the Court on the Eighth Amendment claim resulted in a determination that Ortiz exhausted one cia im but not the other, the Court then addressed the issue of"total exhaustion." John Boston of the Legal Aid Society, Prisoners' Rights Project, represented Ortiz, and arh'ued that the "total exhaustion" rule which is applicable to habeas corpus proceedings should not be extended to PLRA exhaustion cases. The Court agreed. In rejecting the "total exhaustion" rule, under which a prisoner's complaint that contains any unexhausted claim has to be dismissed in its entirety, Judge Sack wrote, "[s]ection I 997e(a) clearly instruct~ that an action such as Ortiz's containing exhausted and unexhausted claims should not have been 'brought.' But we do not think it follows that the only possible response to the impermissibility of the bringing of the action is to dismiss it in its entirety-- to kill it rather than cure it." The Court then turned to the legislative history, observing that nothing in the history indicates that Congress considered the question. The Court concluded that "[w]e do not think that a requirement that district courts dismiss 'mixed' actions in their entirety would help achieve Congress's goal of improving the quality of, or judicial efficiency in, disposing of prisoners' §1983 suits." First, such a requirement would create an incentive for prisoners to bring separate claims in separate lawsuits. Second, plaintiff.~ whose claims are dismissed would simply re·file their claims, omitting the unexhausted claims. Third, when the issue of exhaustion presents challenging questions for the court.~ to decide, efficiency would not be served by torcing the court to PageS consider the issue and familiarize itself with the background of the case twice. The Court acknowledged tbat othcr courts, specifically the IOIh Circuit, have held otherwise, but explained that it disagreed with that Circuit's habeas eorpus aualogy. The Com concluded by rejecting a rule of total cxheuoon saying, "[a]t the end ofthe day, then, we do nottllillk thet requiring district courts to dismiss the entirety of noy prisolHOooioons action thet contains exhamled aoo unexhansted clllim.~, and thereby requiring prisoners to instilnte their actiom contallling only the exhamted clllims in federal OOllrt alI over aguin, i.~ a meaningful WilY to 'rOOlICC the qoontity and improve the qualIty of prisoner som,' or to 'help briag reliefto II civil jnstice system overburdened by fiivolons prisoucr IIlwsidls.", Abney v. McGinnis, • - • F.3d • - ., 2004 WL 1842647 (2d Cir.) (Ang. 18,2004) Abney v. McGinnis involved an inmate, Horace Abney, who, after having surgery on his teet, was prescribed orthopedic shoes and arch supports to help alleviate his pain. When he didn't receive the shoes and arch supports, he filed a formal grievance with the Inmate Grievance Resolution Committee (IGRC). The IGRC recommended that his grievance be granted and urged "expedited action." The Superintendent agreed. Over a year passed and Abney still had not been provided with proper fitting areh supports, and again he tiled a grievance. Again, the IGRC recommended the grievance be granted and again, the Superintendent agreed. Two more months passed without the proper footwt'.ar being supplied and Abney filed a third grievance, which was granted by the IGRe and accepted by the Superintendcnt. Another two months passed and Abney had yet to receive the proper footwear. In response, he wrote a letter to DOCS Commissioner Goord and, on the same day, filed a §1983 complaint. Page 6 After the complaint was filed, Abney continued to complain about not being provided tbe proper footwear and DOCS continued to fail to provide it. In all, Abney filed four formal grievances over a 21month period, all of which resulted in favorable rulinb'S by both the IORC and the Superintendent. Abney's complaint was dismissed by tbe district court for failure to exbaust administrative remedies. The district court did no! address the issue ofwhether any administrative remedies were "available" to Abney after he had received favorable decisions on his grievances but then learned, after the time to appeal such a grievance had passed, that the favorable decision would not be implemented. Rather, the district court simply held that "Abney's failure to appeal the Superintendent's favorable ruling immediately to the Central Offiee Review Committee (CORC) in Albany, New York, meant that his administrative remedies were unexhausted." Abney appealed. The question before the Second Circuit was whether a prisoner is required to appeal a grievauce to the CORC if his b>rievance has essentially been granted at the Superintendent's level, but the prison administration has failed to provide the granted relief. DOCS regulations give inmates only four days to appeal for noncompliance of a grievance decision. Therefore, by the time Abney received his favorable rulings and realized that the prison was, once again, not going to follow through on its promise, the time for appeal had expired. Michael Cassidy, of Prisoners' Legal Services, representing plaintiff Abney, argued that it would be "counterintuitive to require inmates who win during the grievauce process to appeal their victories." Besides, the time for Abney to appeal had long since Ilassed and thus there was no administrative remedy "available" to him. The Second Circuit agreed. Judge Pauley found that, in some eirclUlllltanees, the behavior of prison officials Clln render administrative remedies unavailable. Referring to Abney's sitnlltion llll a Pro Se Vol. 14 No. 3 ..Catch-22," Judge Pauley foRad that "[w]bere, as here prison regulations do IIOt provide a viable mechanism for appealing iIIlplemelllation tlillures, prisoners in Abney's sitnation have fully exha1llltOO their available remedies.... Hemphill v. New Yom, - - - F.3d - - -, 21104 WL 1842658 (2d Cir.) (Ang. HI,2004) In Hemphill v. New York, 2004 WL 1842658, Hemphill claimed that he was subjected to excessive force by officers at Green Haven Correctional Facility and that he was denied adequate medical attention after the alleged use offorce. Hemphill also alleged that officers had threatened him ifhe pursu,xl the matter. The defendants moved to dismiss on the ground that Hernphill failed to exhaust his administrative remedies. He did write a letter to the Superintendent regarding the alleged assault but it was not a "formal grievance" and he did not submit it until five months after the incident. He never received any reply from the Superintendent to his letter. In the district court, Hemphill argued that the court should deem the letter to have been a grievance for administrative exhaustion purposes. The district court judge, Judge McMahon, denied this request. Judge McMahon found that DOCS has a three-tier grievance proce.~s and, the court held, an inmate has not exhausted his administrative remedies until he follows through all three levels of the grievance procedure. Hemphill did not file a "Level I" grievance. The court found that his letter to the Superintendent could not be considered a Level 2 appeal "because he had never filed a grievance that could be beard at the lowest level." The court concluded that, regardless of the fact that he sent a letter to the Superintendent, he never appealed anything to CORC. In rejecting an estoppel-type argument, the lower court found that Hemphill could not be heard to P.... Se VoII4N... 3 complain regarding the Superintendenl's failure to respond to his letter because Hemphill himself"failed to follow the expedited grievance procedure that prisoners are afforded when they are alleging any form ofharassment--including use ofexcessive force by a corrections officer. 7 N.Y.eR.R. Sec. 701.l1(a) and (b). Under this expedited procedure, a grievance is filed with both the Inmate Committee and the harassing employee's supervisor. If t11e grievance raises a bona fide harassment issue (as this one would have), Levell review is bypassed and the matter is sent directly to the Superintendent for review." Had Hemphill utilized this procedure, the court held, any failure by the Superintendent to "render a decision on the matter within twelve working days could have been appealed to Albany, thus completing the grievance cycle and exhausting his n:.medies in a mattcr of weeks." The lower court also held that, even if Hemphill's letter could be interpreted as a grievance, it was untimely, since he did not send it until almost five months after the incident. The issue before the Seeond Circuit was whether a letter, which Hemphill sent to thc facility Superintendent concerning the assault, to which he received no reply, constituted exhaustion. Michael Cassidy, of Prisoners' Legal Services (Joel Landau and Karen Murtagh-Monks, on the brief) presented oral argument on behalf of plaintiff Hemphill, asserting that defendants should be estopped from asserting exhaustion by either their threats of retaliation or the Superintendent's failure to investigate. In addressing these issues, Judge Calabresi foull tbal a pnooller wllo did DOt file a grievance because he was tllreatelled by staff wculd lie deemed 10 have IlO available remedy if a pet'S(l1i of"ordillOry firmlleSS" would lie deterred from 1IS!ug tile grievance process, awl that slrell threats may also j lIStify a pnooner's compillilling in some other fashion rather than using tile formal "noon grievance system. Expanding on their Poge 7 decision in Ziemba v.Wemer, 366 F.3d 161 (2d Cir. 2004) (reported in the last issue of Pro Se), Judge Calabresi wrote: "threats made by prison officials allegedly made against the plaintiff may in some instances be sufficient to estop the government from asserting the affirmative defense ofnon-exhaustion." In directing that the ease be remanded for further proceedings in the Southern District, where the claim had been dismissed, Judge Calabresi wrote that "we cannot say at this time that the remedies that Hemphill failed to pursue were actually available to him." Hemphill also made the argnment that he sliollld not he ~ forMing to foUow DOCS expeditro grievance pmcoonres since the procedures were extremely conlillSing. hi respo_, the Second Circuit iastmeted the lower court to examine 08 relliaud "this )Il1SSible jllStilleation for Hemphill's fuilnre to follow IIOrmal grievance procedure. " The five e11ses were argued together on May 27, 2004 and all five decisions were issued on August i8, 2004. Rodriguez v. Westchester County Jail Correetio!lll.i Dep't., 372 F.3d 485 (2d Or. 2004) The sixth PLRA ease, decided by a different panel of judges on June 24, 2004, found that, although the plaintiff had indeed not exhausted, he had demonstrated a suflicient justification for failing to do so. "The issue is whether jilStifiahle circumstances may somctimes excuse a prisoner's faihlnl to exhaast administmtive remedies when challenging collditiollS of confinement. We oondllde that eximilStioll may sometimes lie excnsOO and should lie ellclISOO in this ease." In this case, Rodriguez did not exhaust his excessive force claim because he didn't think he had to. He argued that he did not believe that the PLRA covered excessive force claims. The Second Circuit noted that it was under the same impression when it P.... Se Vol. 14 No.3 decided the case ofNussle v. Willette, 224 F3d 95 (2d Cir. 2000). A1thoughNusslewas later overturned by the Supreme Court, Porter v. Nussle, 536 U.S. 516 (2002), the Second Circuit notcd that Rodriguez's belief was "reasonable because it was thereafter entertained by a panel of this Court (until later rejected by the Supreme Court)." Though exhau.~tion would have been required by the Supreme Court's decision in Porter, Rodriguez was out ofthe jail by that time and administrative remedies were uo longer available to him. Becausethe Second Circuit's decision in Nussle came after Rodrigue:/; filed his case, he did not argue that he actually relied on the decision, but rather that he was under the impression that excessive force was not a "prison condition," a~ set forth in the PLRA. TillIS, it appears as if the Court, ill this case, effectively holds that a reasouhle lui!lta.1w of law excuses eWlISoolI. Se;:o/llJ Circuit Dellies QlUllifred Immunity to DOCS 011 Due Process Issue ofIlIlIIleqllate Notice and NOli-Disclosure ofEvidence 81m v. Mol1on,. - -F.3d- - -, 2004 WL 18327779 (2d CII".) (Allg. 17,2(04) In another unanimous decision, the Second Circuit Court of Appeals recently held that DOCS was not entitled to the defense of qualified immunity in a case where the plaintiff, Rubin Sira, was given inadequate notice ofthe disciplinary charges against him. In addition, the Court held that DOCS improperly withheld certain evidence from inmate Sira which prevented him from being ahle to defend himself from the charges. The Court did, however, grant DOCS qualified immunity on inmate Sira's challenge regarding the sufficiency of the evidence presented agaillSt him. In doing so, the Court has now clarified the law in the area ofthe use of confidential information and, most probably, precluded DOCS from using the defense of qualified immunity on this issue in the future. Background The incident at issue dates back to January 2000, when inmate Sira, together with many other inmates who were housed at Green Haven, was suspected of being involved in a planned work stoppage, also referred to as the "Y2K strike." Many inmates were written up, transferred, or otherwise disciplined for their suspected involvement in planning the alleged strike. Rubin Sira was one of those inmates. Sira received one ofthe rather generic misbehavior reports which were issued to inmates suspected of heing involved in planning the strike. The report alleged that "during the course of an investigation into a planned inmate demonstration at [Green Haven] in which inmates would conduct a work/program stoppage on or about January 1,2000, Inmate Sira has been identified through confidential sources as having urged other imnates to participate, organized inmates to participate and threatened inmates to participate." The author ofthe report, Lt. Schneider, in response to specific questions concerning tbe details ofthe incident, stated that " (1) the date of the charged incident wa~ January 19, 2000; (2) the incident time was 10:15 a.m.; (3) the incident location was Green Haven Correctional Facility; and (4) no persons other than Sira were involved in the incident." The Hearing At his snbsequent disciplinary hearing, Sira pled not guilty and requested dismissal of the charges because the misbehavior report did not provide him with adequate notice ofthe alleged mishehavior. Sira Pro Se Vol 14 No. 3 claimed that the report fuiled: " (1) to identifY any person whom he had threatened or organized; (2) to indicate where in Green Haven the alleged misconduct had occurred; and (3) to provide clear notice ofthe date ofhis alleged misconduct, since the incident date on the rejlort was marked January 19, while the body of the report suggested that the strike had occurred sometime earlier, possibly hefore January 1." Sira noted that he had no disciplinary history and offered an alibi that, on the alleged date of the incident, January 19, he was in the Health Services Unit. The Hearing Officer, Capt. Morton, although admitting that the charges were "very vague," in that the report could have meant tllat Sira actually engaged in the alleged misconduct on January 19, or that he was merely identified on January 19, refused to dismiss the charges. Morton stated he would call Lt. Schneider in order to allow Sira to ask questions concerning the report, and that he would interview the confidential sources outside of Sira's presence. The Confuk1l1ioJ 1l!foFmatioll Lt. Sclmeider testified, in Siru's presence, that prison officials had been investigating the alleged Y2K strike for the past month and had reeeived confidential information that Sira had a leadership role in enforcing participation in the strike. Schneider admitted that no one had indicated that Sira had threatened any speeific inmate hut rather, source.~ had stated that Sira made "open threats to anyone who would go against the strike." Schneider did not give any details as to when the threats were allegedly made or what they encompassed. "Lt. Schneider did, however, clarifY that the report's referencetoJannary 19 at 10: 15 a.m. alluded to the date and time she filed Pogo 9 the disciplinary charges, not the date and time ofany misconduet." The Hearing Officer then heard testimony from various correctional officials regarding the confidential testimony they had obtained regarding Sira's alleged involvement in the Y2K strike. The first confidential informant had apparently attended a meeting where he was told that Sira would force others to be involved in the strike on C-Block, but this informant did not place Sira at the meeting nor did he report ever seeing Sira participate in any strike-related activities. The second confidential informant reported "that Sira, who was housed in Block C, was one of the strike coordinators and that he met with other gang leaders at night in Building 12 and in the morning in the pre-release center to organize strike activities." However, this informant "did not have personal knowledge of these facts, nor had he ever personally witnessed Sira engaging in any strik~>"related activities." The third piece of confidential information was an unsigned letter in which the author claimed to have overheard one unidentified prisoner tell ing another that an inmate named "Ruben" was going to "take over" the Dominicans. The fourth piece ofconfidential information was an undated letter that had been passed on to Lt. Schneider from the Superintendent, identifYing "Ruben Cira" as one of the strike's organizers. Lt. Schneider did not know who authored the letter. The Hearing Officer did not ask Lt. Schneider to inquire how this fourth informant had learned the information disclosed in the letter, or "even if it was based on direct knowledge or hearsay." Finally, the fifth piece of confidential testimony was a statement hy an inmate that he bad witnessed Sira coercing other inmates into participating in the demonstration. However, the record disclosed that "no effort was made to identifY the inmates Pro Se Vol. 14 No.3 Page 10 purportedly threatened by Sira." Nor did the Hearing Officer inquire as to wheth~'f this informant could "detail what he heard or saw that led him to characterize Sira's conduct as coercive or threatening." Thc Hearing Officer did ask the officers involved whether any ofthe informants would appear before him to testilY and was told that none of them would agree to do so for fear of their safety. (5) the defendants failed to disclose the confidential documentary evidence against him. The defendants responded by asking for judgment on the pleadings based upon the defense of qualified immunity. The district court converted the defendants' request to one for summary judgment and denied it, finding that Sira had established a due process violation and that no reasonable officer could have thought otherwise. Defendants appealed. The Disposition The Secm.d Circuit Decision Although he understood that the identity of the confidential informants could not be disclosed to him, Sira requested that the substance of the confidential information be disclosed in order to allow him to present a defense. The Hearing Officer denied his request and found him guilty of demonstrating but not guilty ofmaking threats. He sentenced Sira to six months SHU, together with loss of privileges and six months recommended loss of good time. Sira appealed the disposition on numerous grounds, including inadequate notice and lack of substantial evidence. The disposition was reversed on administrative appeal because "confidential evidence failed to support [the] charge," but by the time ofthe reversal, Sira had served the entire six month SHU sentence. The Federal Complaint Sira sued, ciainling that the defendants had violated his rights to due process, in that: (I) thc disposition was based upon insut~ficicnt evidencc; (2) the defendanL~ failed to providc him with adequate notice of the charges; (3) the defendants denied him access to confidential evidence relevant to his defense; (4) the defendants failed to assess the reliability of various sources ofconfidential information; and Initially, the defendants challenged the district court's decision to convert their motion for judgment on the pleadings to one for summary judgmcnt The Second Circuit found that the lower court properly converted the defendants motion. Unless there is a showing ofprejudice, ifa motion for judgment on the pleadings includes materials "outside the pleadings" and those materials are not "excluded" by the court, then the court is required to convert the motion to one for summary judgment. In this case, the defendants attached a number of documents to their motion that were not incorporated into the complaint, including the hearing transcript. Since the district court did not exclude those documents and since defendants could not demonstrate any prejudice, the Court found that it was proper, indeed mandated, that the court convert the defendants' motion to one for summary judgment. In analyzing whether a defendant is entitled to qualified immunity, a court must answer two questions: first, "whether the facts, viewed in the light most favorable to the plaintiff; establish a constitutional violation. If they do not, the plaintiff may not recover because he has suffered no wrong cognizable under §1983." If, howevcr, the fact.~ do establish a constitutional violation, the court must then ask "'whether it would be clear to a reasonable officer that his conduct was unlawful in the situation P .... Se Vol 14 No. 3 he confronted.'" The Court found that Sira presented three due process violations: " (I) inadequate notice; (2) non-disclosure of confidential evidence relied on to support the disciplinary ruling, and; (3) insufficient evidence of misconduct," each of which had to be addressed in terms of whether the defense of qualified immunity applied. Inadequate Notice Is a C1ear(p Established Con.stitutional Violation Relying on Wolffv. McDonnell, 418lJ.S. 564 (1974), the Court initially found that the law is clea.rly established that due process requires that the accused receive adequate notice of the charges. Quoting from one ofits recent cases, the Court stated that notice serves to "compel 'the charging offker to be [sufficiently] specific as to the misconduct with which the inmate is charged, to inform the inmate of what he is accused of doing so that he can prepare a defense to those charges, and not be made to explain away vague charges set out in a misbehavior report. '" Taylor v. Rodriguez, 238 F.3d 188, 192-93 (2d Cir. 200 J). The Court highlighted the importance of such notice in a ease such as this one, where a large portion of the disciplinary hearing was held outside Sira's presence. The Court noted that the charges needed to ioclooe some "!adual speeificity" reganiiog the aUegoo misbehavior, rather than settillg forth "vague or conclmwry" charges. In assessing the mishehavior report issued against Sira, the Court found that there were no specific facts to support the conclusory aUegation that Sira was guilty of urging others to participate in the Y2.K strike. Although the defendants argued that the error with respect to the actual date and time of the incident was of"no import," the Court disagreed, finding that a reasonable person could have believed that, since the date of the incident was listed as Pogell January 19, this indicated the time of the alleged misbehavior. The Court went on to say that not only did the misbehavior report misidentifY the time and date of the incident, "[i]t provide[d] no notice as to the specific site or sites of his misconduct; it [did] not indicate the words or actions he employed in purportedly urging, organizing, or threatening inmates to participate in the Y2K strike; and it identifierd]no inmates toward whom his actions were dir~'Cted." The Court concluded, "[f]rom the notice he was given, Sira could only guess whether he was being charged with making a single objectionable statement to one inmate or a host of statements to groups of inmates; whether his conduct allegedly occurred on a specific day in January or over the course of several weeks; and whether he had to defend against miseondnct in the mess, the prison yard, his eell block, or some other location." The Court cautioned that its decision did not mean that every single detail has to be laid out in a misbehavior report and that officials will lIot be expedoo to pi'ovide notire of!ac!s that are beyond their OWll !mowloogc, hut that "there must be sufficient fllCtlllll specificity to permit a mlllOliable person to underetllnd what condnet is at issue so that hc nlaY identitY relevant evidellCe and present a defense." The defendants argued that any notice errors were cured by the testimony from Lt. Schneider at the hearing, which identified some ofthe substance of the confidential information. The Court rejected this argUment, finding that it is doubtful "that inadequate written notice can be euroo merely throllgh or.d disclosures at the disciplinary hearing. Certainly such curative disclosures would be insufficient unless the inmate was also afforded the meaningful opportunity to prepare a response to the new information." Page t2 A Reasonable Officer Would Have Known Thill Failing to Provide Adequate Notice ofthe Charges Was Unconstitutional The Court rejected the defendants' assertion that, even though the law may have b~-en clearly established in this area, a reasonable officer could have believed that it would satisfy the notice requirement to provide a misbehavior report which simply tracked the language of the alleged rule violation. The Court noted that tile law Ia this area has Ileell settled for over two deeMes. "No resoouble oflieer could have thollght tbat such II misllebavior report, devoid of allY mctWll detail and oolltaming all inseclIrate incident date, was adequte to permit Sira to identify and marshal tile mets pectineat to a defelllSe." The Court went on to hold that "[i]ndeed, such a conclusion is particularly warranted in this case because Sira peJ'sistently challenged the adequacy ofthe notice he received with respect to place, date, and victims." Sira Adequately Stated a Claimfor Failing to Disclose Evidence Relying once again on Wolffv. McDonnell, the Court noted that an inmate's right to know the evidence relied upon is well established. Although this right is not absolute, "the discretion to withhold evidence is not unreviewable." In reviewing the rationale set forth by defendants in refusing to disclose the confidential information, the Court foulld tllat although tliere may have Ileell SOllle security mil. if tlie confidential informants themselves Iiad Ileen identified, there was nathiilg in the record to silggCSt tbat di'lclostll"e of the "substallCe" oftlie collfidel!tiaI lnformaool! wOllid have presented seclirity risks. Thus, the Court denied the defendants qualified immunity on this issue, holding that: "[ilt is possible that on further development ofthe record defendants will be able to Pro S. Vol. 14 No.3 justifY withholding the substance of the informants' disclosures from Sira. (citations omitted) But because no reasons are now hefore the court and because we review the record in the light most favorable to Sira, we must conclude that he presents a viable due process claim based on non-disclosure of evidence and that there is no basis to hold that any reasonable officer could have thought otherwise." Defendants Are Entitled to Qualified Immunity Regarding Sua's Suffu:ielrcy ofthe Evidence Claim Sira's fmal claim was that he was denied due process because the decision finding him guilty was not supported by sufficient evidence. In analyzing this clailn, the Court addressed three questions: I) what evidence is required to support a prison disciplinary disposition; 2) what is the obligation ofthe hearing officer with respect to assessing collfidential information; and 3) how is reliability of confidential information established. With respect to the third question, the Court explained how hearing officers should assess bolh c.onfidential information, which is hearsay, and conclusory assertions by informants. In answering the first question, the Court relied on the Supreme Court's decision in Suoerintendentv. Hill, which held that a disciplinary decision must be "supported by some evidence in the record." 472 U.S. 445,455. (In New York State Courts, the standard for review ofthe sufficiency of evidence of a Tier l!I disposition is whether the record contains "substantial evidence." When you are suing in Federal Court, however, the standard regarding the sufficiency of the evidence is lower.) However, tile Court nated that "oilly 'relinhle' evidence can coustitute 'some evidence.' Tile principle is oot new. A reliability lnqwry has long Ileen required 1'.... Se Vol 14 No. 3 wllell oonfidentia!1lO1Irce Infol'llllloon is relied Oil to satisfy tile 'some evidence' stalldard." In addressing the obligation ofthe hearing officer with respect to assessing confidential information, the Court explored the history ofsome ofits decisions on this issue, admitting that there had been some ambiguity in the case law as to whether a hearing officer had to make an indcpendent assessment of an informant's credibility, or whether he could rely on the opinions of others who had dealt with the informants. However, tile Conrt noted that its recent decision of Taylor v. Rodrig!!~ 238 F.3d at 194, made it clear that heariJ!lg oflkel1l WlISt mIIlre an indepaident _ment oflin infol'llllllit's credibility. The Court then focused on how a credibility assessment should be made when dealing with hearsay information. The Conrt noted tilat, whell de.aliug with mllltiple levels ofheanay, "a heariug officer ClIIIIIOt determill.e the reliability of that infol'lllllooll s.imply by nfcJrellce to the iilfol'lllllnt's past roeard for credibility." Rather, the heariug oflicer mIISt "ooWllder the totality of the dreu_tances to determille if the heamllY InfOl'llllltiOD is, in fact, niiable." The CoW'! provided n 1m of lilctors thai a hearillg oflker might rely Ol! In considerillg the "totality of the dreWllStanees," which IllCluded: tile identity and replltatioll oftile original illforsnant; his motive for milking the statement; his willingness to testify or his reasoWl WI' not doiilg so; and the consequences hewolllid face ifhis illwl'IIIlltlon proved to he filise. The Court also noted that if the confidential informant's identity were unknown to the hearing otlicer, he could still make a totality assessment by considering factors such as the "specificity of the information, the circumstances under which it was disclosed, and the degree to which it is corroborated by other evidence." In addition, the Court held, the l'.g.13 hearing officer should consider challenges to the informants reliability raised by the accused. In Sira's case, the defendants argued that the internal consistency of the confidential information should have been sufficient to establish its reliability, but the Court disal,'feed. The defendant, cited to the fact that several of the informants plaeed Sira in the same locations at specific times. However, Sira was assigned to be in these locations. "Corroboration of facts generally known or easily obtained do not necessarily establish a source's reliability with respect to other incrinlinating matters," held the Court. Finally, the Court held, In _iIlg the relialJllity of oollClusory ussertiollS made by credilJle iufol'lllllnts, that the hearillg oflker shollld determillC whether there is a lilctaaI basis fur the witness's oollcllISloilS by inquirillg us to what the inrol'lllllilt heard amlInr saw, wheoand where he made his observations, and whether then were any otller witaesses to the alleged COndllct. The Court stated, "although 'a thorough articulatiou of the actual hasis for particular information may not be necessary in every case, especia.lly where other circumstances weigh heavily in favor of reliability,''' in this case, the hearing officer tailed to make any inquiry whatsoever into the infonnant's conc1usory allegations. However, with respect to the defendants' qualified immunity defense on this issue, the Court found that the defendants were entitled to qualitled immunity because, prior to this decision, "the law had not clearly established the need to look beyond the credibility records of confidential informants when evaluating the reliability of conclusions or third-party hearsay evidence supplied by them." Joel Landau, of Prisoners' Legal Services, represented plaintiff Sira on appeal. Page 14 Pro Se Vol. 14 No. 3 A Message From Tom Teh'izzi, Executive Director (if PLS This is an unusual edilion of Pro Se. I can't remember an issue that we have published whieh eontains so many decisions in whieh prisoners have prevailed. The recent Second Circuit Court of Appeals eases regarding "exhaustion of administrative remedies" under the PLRA were a breath of fresh air for inmates struggling just to get their claims filed. The struggle to keep the eourt house door open was as a result of a combined effort among Prisoners' Legal Services of New York, the Prisoners' Rights Project at the Legal Aid Society, private pro bono counsel, and some pt'fsistent pro se plaintiffs. Congratulations to aiL We have to keep in mind, however, that getting in the eourt house door will eontinue to be a ehallenge. It is extremely important that prisoners edueate themselves on the hasies of raising a eomplaint. Everyone, whenever possible, must promptly file a grievanee regarding a decision or incident they object to, and appeal that decision through all stagt,'S of the grievance process, in order to preserve the right to go to court later. If there is a grievanee process other than the IGRC process, for example, for Tier III appeals or property claims, those processes must be followed all the way through the final appeal stage. The courts will eventually establish a clearer direction regarding what constitutes exhaustion of administrative remedies. But who wants to spend years fighting over these issues when it is the underlying claim which is important? Edueating yourselves and others regarding exllaustion is the best way to avoid future problems. Then, perhaps, we at Pro Se can spend more time reporting on positive decisions on the merits of claims. Voting Rights: Second Circuit Upholds New York State Statute Prohibiting Voting by Incarcerated Felons and Parolees Muntagim v. Coombe. 366 F.3d 102 (2d Cir. 2004) On April 30, 2004, the Seeond Circuit decided tbe issue of whether the Voting Rights Act (VRA), which prohibits voting qualifications that result in the abridgment of the right to vote on account of race could be applied to a New York State statute tha~ disenfranehises eurrently ineareerated telons and parolees. Initially, the Court noted that this L%Ue is a diffieult one whieh "ean ultimately be resolved only by a determination of the United States Supreme Court." Nonetheless, the Court concluded that the VRA, which is silent on the topic of state felon disenfranchisement statutes, cannot be applied to draw into qut,'Stion the validity of New York's disenfranehisement statute. The Court held: "[1]n light of recent Supreme Court decisions that have clarified the scope ofCongress's enforeement power under the Reconstruction Amendments, the applieation of the Voting Rights Aet to felon disenfranchisement statutcs such as that ofNew York would irdringe upon the states' well-established discretion to deprive felons of the right to vote. Because the Supreme Court has instructed us that statutes should not be construed to alter the eonstitutional balanee between the states and the federal government unless Congress makes its intent to do so unmistakably clear, we will not construe the Voting Rights Aet to extend to New York's telon disenfranchisement statute." Pro Se Vol 14 No.3 New York City Pla¥lS To Place Hou~ing Restrictions on ConvictedSex andDrug Offenders This past June, the Bloomberg administration in New York City reported on its plan to crack down on drug and sex offcndcrs, banning all those who are arrested for such offunses on pnblic grounds from all pUblic housing except their own home and its common areas. Thc new policy requires that people arrested for the felony sale of drugs on public grounds be notified that they are banned from all public housing outside of their own home and its common areas. If the person who coll1JJ1its the crime does not live in the development where the crime is eommittcd, shelhe will be banned from the prcmises entirely. Violators will be arrested for trespassing, being identified by a database which will be maintained by the police. The city was unable to answcr any questions concerning how long a drug offender might be banned from moving into public housing. In addition, the city plans to use the New York State Sex Offender Registry Act to monitor convicted sex offenders living in public housing within the city. Police are planning to visit the homes of convicted sex offenders who claim to bc living in public housing, in order to verifY their address. Ifthe person is not living at the address provided to the registry, they will be arrested. DNA: Di~trict Court Upholds Constitutioflality of DNA ~1atute Nicholas v. Goor!!, 2004 WL 1432533 (S.D.N.Y.) (June 24, 20(4) The plaintiffs in this ease were either current or Page 15 former incarcerated felons who refused to submit their DNA, or individuals who had allowed their blood to be taken but were seeking to have the results expunged. The plaintiffs' claim was that New York State's DNA statute violated their Fonrth Amendment right to be free from unreasonable searches and seizures. The court applied a simple balancing test to determine the constitutionality of the statute, weighing an "individual's Fourth Amendment interest against the government's interest in conducting the search." Admitting that there is no precise formula for the application of the balancing test, the court focused on three factors: "the strength of plaintiff's privacy interest; the nature and scope of the intrusion; and the government interest at stake." The court first found that "plaintiff's interest in thcir DNA is mininlal," noting that the information obtained from DNA is similar to fingerprinting, in that it simply provides a unique identifYing marker, and the use of such information has become universally ac,cepted. As to the scope ofthe intrusion, the conrt found that also was minimal, in that the use of DNA provides "no information of any apparent utility to law enforcement other than identification; nor is any additional usage permitted by the statute." The fact that DNA requires the gathcring of blood was also dismissed by the court, as it found that inmates "are required to undergo physical cxaminations, including blood tests," and noting tbat Supreme Court cases have found that the drawing of blood is "minimally intrusive." The court explained that the reason behind the warrant requirement for certain "searcbes" is to protect against "random or arbitrary acts," and since thc DNA statute is "univcrsally applied," it ensurcs that DNA samples will not be ordered "randomly or for illegitimate purposes," thus fulfilling a "principle purpose ofthe warrant requirement." Finally, the court addressed the government's interest and found that, "compared to the namrc and Paget6 the invasion of privacy, there is a significant government interest" in "having information readily available to aid criminal investigations." The court granted the defendants' motion to dismiss, concluding that "taking blood and analyzing it for DNA constitutes a reasonable search" within tbe meaning of the Fourth Amendment. "Restricted Diet" Cfl.fe: Pri.wller Substantially Prevails on Opposition to Sananary Judgment Motion Rodriguez v. McGinnis, Alves & Morse, 2004 WL 1145911 (W.D.N.Y.) (May IS, 2004) In yet another victory for prisoners' rights, District Court Judge Siragusa recently denied, in part, the defendants' motion for summary judgment in the "restricted diet" case of Rodriguez v. McGinnis, ct. al. Defendants McGinnis, Alves and Morse made their motions claiming that Rodriguez could not prove facts sufficient to prove deliberate indifference on the part of the named defendants and that even if he could, they should be shielded from liability as a result of qualified immunity. The defendants also requested permissiou to amend their answers to raise the defense of exhaustion. In 1998, Rodriguez sued the Superintendent, the retired Deputy Superintendent of Security, and the Director of Medical Services of the Southport Correctional Facility, alleging that he was subjected to cruel and unusual punishment while incarcerated at Southport hetween June 1995 and June 1998. During this time period, Rodriguez accumulated over a year's worth of days on a restricted diet, a "nutritional loaf, food he could not stomach, which caused him to lose an average of ten pounds a week. His weight dropped from his regular 140 pounds until at one point, he weighed only 114 pounds. In addition, during this time, he suffered from several medical conditions, including epilepsy, gastritis, and Pro S. Vol. t4 No.3 negligently undiaguosed Hepatitis C, all of which were affected by the weight loss." Rodriguez alleged in his complaint that defendants Morse and McGinnis lmew that Rodriguez either could not or would not eat the diet, and if they placed him on the diet, he would starve. Rodriguez also claimed that defendant Alves removed him from the "special diet" only until his weight increased; at which point, Alves ordered that the diet be resumed. It is alleged that defendant Alves engaged in this conduct 24 times over a three-year period. Rodriguez asserted in his papers that the American Correctional Association (ACA) standards prohibit using food as punishment, and yet this is a practice which DOCS not only permits, but has increased the usc of, over the years. Further, although DOCS claims the diet to be nutritious, Rodriguez asserted that current knowledge about nutrition indicates that variety is critical in a diet. Finally, Rodriguez claimed that, in order to obtain the full nutritional value of the diet, a person would have to ingest thrce IS-ounce loaves per day, which would result in an excess caloric intake. In his complaint, Rodriguez also asserted that while at Southport, he suffered from a rotator cuff injury. Despite this injury, he was frequently placed on a back cuff aud waist chain order. At Southport, back cuffs are applied with the backs of the hands together and thumbs up; a chain is then attached to the cuffand placed around the waist. Inmates remain in cuff~ throughout recreation, and whenever escorted from their cell, during disciplinary hearings, medical visits to the infirmary, etc. Rodriguez alleged that, although DOCS regulations and ACA guidelines prohibit the use of mechanical restrail1t~ as punishment, back cuff orders were triggered by nearly any mishehavior, and were constantly renewed for four to six weeks at a time, regardless of present behavior or any apparent sccurity threat. Initially, the district court denied the defendants' motion to amend their anSwers to raise the Pro Se VoIt4 No.3 " r ,\ ( affIrmative defense of exhaustion, finding that granting such a motion would unduly prejudice the plaintiff. The court noted, however, that if it were to address the issue of exhaustion, it would dctermine that Rodriguez did, indeed exhaust his administrative remedies. The court then held that, with respect to defendant Alves, there weretriable issues ofmaterial facts as to whether he was deliberately indifferent to the health and safety of Rodriguez. With respect to defendants Morse and McGinnis, the court found that there was a question of fact as to whether the use of the restricted diet and behind-theback cuffing was used to restore prison disciplincand security because, although defendants argued that this was the case, the plaintiff submitted expert testimony indicating otherwise. The court then addressed the issue of personal liability on behalfo[Morse and McGinnis. The court found that the evidencc presented failed to demonstrate a triable issue of fact as to whether Morse was deliberately indifferent to the plaintiff's shoulder condition or his medical condition while on the diet. The court also found that it was not unreasonable tor Morse to rely on defendant Alves to provide adequate medical care, and thus, Morse would be protected by qualified immunity. The court had the same opinion with respect to defendant McGillllis, but only on the issue onhe usc ofthe restraints. With respect to the imposition ofthe diet, the court found that defendant MeG innis had received letters from Rodriguez setting forth his complaints regarding his medical condition while on the diet, had affinned the dismissal of grievances concerning the diet, and suspcnded the diet on 31 occasions, checking with defendant Alves as to when Rodriguez had gained enough weight so that the diet could be reimposed. On the qualified immunity issue, the court found that there was a triable issue offact as to wbether it was reasonable for defendant McGillllis to helieve he was not violating plaintiff's constitutional rights by imposing the restricted diet. Pagot7 Rodriguez is presently being represented by Prisoners' Legal Services. Sex Offender Treatmetlt Programs and the Fifth Amendment Aguilera v. Conway, 2004 WI, 1773394 (W.D.N.Y.) (August 5, 20(4) Donhauser v. Gourd, 314 F. Supp.2d 139 (N.D.N. Y. 2004) see also amended decision at 371 F. Supp. 2d 160 (N.D.N.Y. 2(04) In decisions dealing with the rc<luirement that prisoners enrolled in the Sex Offunder Counseling Program (SOCP) discuss not only the conduct that resulted in their current convictions, but also conduct which could lead to criminal charl,'CS, the United States District Courts for the Northern and Western Districts ofNew York give a very instructive lesson on how to craft a successful Fifth Amendrncnt challenge. The Fifth Amendment states that "no person shall be compelled in any criminal case to be a witness against himself" This rule prevents the government from requiring a person to answer questions put to him/her in any civil or criminal proceeding, whether formal or infonnal, where the answers might incrinlinate him/her in future criminal proceedings. The SOCP rules not only required that a prisoner discuss prior conduct that could be the hasis of criminal proceedings, hut also required that the counselors fIllllling the program report any infoflllation they learned about an individual's possibly criminal, but as yet uncharged, conduct to law enforcement agencies. Adding to the pressure on prisoners to cnroll in SOCP and discuss their prior sexual misconduct is a DOCS' policy that prisoners who refuse to enroll in the program, or who enroll but refuse to discuss potentially criminal conduct, will be deprived ofall oftheir good time credits. Yet another consequencc of either a prisoner's refusal to Pag.18 enroU in SOCP, or of enrolling but refusing to discuss his past conduct, is the denial of certain privileges, such as participation in thc family reunion program. In Aguilera v. Conway, the plaintiff alleged that prison officials had violated his Fifth Amendment rights when they denied his application for a family reunion visit because of his refusal to discuss his crime of conviction in SOCP. Aquilera's appeal of the conviction was still pending, and he was concerned that statements he made in the program mightjcopardizethe appeal. The Court dismissed this action, ruling that plaintiff Aquilera was not compelled to incriminate himself Rather, the Court stated, the plaintiff could voluntarily c.hoose to participate and abide by the requirements or he could avoid the requirement simply by not enrolling. The fact that participation in the SCOP program might be a condition for other prison privileges, such as family reunion visil~, did not bolster the plaintiff's claim that the requirement violated his Fifth Amendment rights because the plaintiff has no constitutional right to have a trailer visit, and DOCS therefore could exercise discretion in deciding who is eligible for a trailer visit. The court also concluded that DOCS' decision that plaintiffAquilera be denied a family reunion visit did not violate either Aquilera's fundament right to marry or his Eighth Amendment right to be free from cruel and unusual punishment. Unlike the plaintiffin the Donhauser case below, plaintiff Aquilera did not claim that the program's requirement.~ violated his Fifth Amendment right not to ineriminate himself because the refusal to abide by SOCP's rules or to enroll in the program would result in a loss of good time credits. The Court in Donhauser v. Goord fuced a similar set of facts to those considered by the Court in Aguilera, with one very important exception. In Donllauser, the plaintiffalleged that, because DOCS would deprive an inmate who refused to abide by the 1'..,. So Vol. t4 No. 3 SCOP's full disclosure requirement of all his good tinle credit, the requirement violated his Fifth Amcndment right not to incriminate himself. Oonhauser's focus on the consequence ofrefusing to disclose all prior sexual misconduct, that is, the loss of good time, led the Court to a different result. The Donhauser Court ruled that, because the price ofexercising his right not to incriminate himself was an extension of his term of incarceration, the plaintiff had stated a cause of action for a Fifth Amendment violation. In reaching this result, the Court distinguished the facts before it from those of McCunev. Lile, 536 U.S. 70(1973). In MeCune, the United States Supreme Court ruled that where a prisoner's refusal to participate in a sex otlender treatment program resulted only in a transfer to a higher security prison and a loss of privileges, the Fifth Amendment was not violated. (This is the same rC<lsoning used by the Court in Aguilera). Here, the Donhauser Conrt reasoned, the fact that the plaintiff's refusal to incriminate himself affected the tenn of his imprisonment distinguished it from McCune and an earlier decisioo, Johnson v. Baker, 108 F.3d 10 (2d Cir. 1997). The Court commented that DOCS could remedy the Fifth Amendment problenl by offering program participants "use immunity." That means that any statements made by prisoners participating in SOCP could not be used a.gainst them in criminal prosecutions. The Oonhauser Court allowed the plaintiff to proceed with his Fifth Amendment claim for declaratory and injunctive relief. It ruled, however, that Donhauser's claim for moncy damages could not proceed because the defendants were entitled to qualified immunity. With respect to qualified immunity, the Court ruled that even though a prisoner's right to be free from compelled selfincrimination has been long established, courts had not reached a consensus on the proper lelSdl parameters of such a right; the individual defendants Pro Se V.114 No. 3 therefore should not have been expected to solve the riddle either. Like the Aguilera eourt, the Donhauser eourt ruled that neither the plaintiff's rightto privacy, due process, nor equal protection were violateAl by DOCS' full disclosure of all prior acts of sexual misconduct. In the wake of the Donhauser decision, Conunissioner Goord announced that he was suspending the SOCP, saying that the order "effectively guts the program" and essentially gives sex offenders inappropriate veto power over their rehabilitative treatment. He rejected the Court's suggestion that partieipant~ in SOCP be given use immunity, claiming that "immunity places an intolerable burden" on prosecutors. "I will not grant inmates 'use inununity' that is tantamount to a 'stay out of jail card,' complicating attempts to convict them of other crimes," Mr. Goord said. An alternative program will be offered in place ofSCOP. Subsequently, DOCS filed a notice ofappeal and moved for a stay of the court order. The stay was granted, which me,ans that the lower court's decision is held in abeyance until the Second Circuit reviews the case. Because of this, the SOCP program is continuing unchanged. Hepatitis C: District Court Grallts DOCS Summary Judgment Johnson v. Wright, 2004 WL 938299 (S.D.N.Y.) (May 3, 2004) PlaintiffJohnson, who suffers from Hepatitis C, sued employees of DOCS, including Dr. Lester Wright, DOCS' Medical Director, claiming deliberate indifference to his medical needs, based on their refusal to provide him with eomhination therapy ofRihavirin and Interferon, commonly referred to as "Rehetron therapy." Plaintiff Johnson had heen treated with Interferon, but in June 1999, when his liver enzyme eounts increased, his treating physician "og.19 recommended thai he he placed on Rehetron therapy. His request was sent through the DOCS' chain of conunand to defendant Wright, who denied the request to add Ribavirin to the treatment "due to drug use within the past year." A year later, in June 2000, Johnson filed a grievance and sent a letter to Dr. Wright requesting that he he placed on Rebetron therapy. Dr. Wright granted his request and hy August, Johnson was receiving Rehetron therapy. Plaintiff Johnson sued in Mareh 200 I, claiming deliberate indifference to his medical needs. After various motions and some discovery, the defendant.~ moved for summary judgment claiming, among other things, that: 1) Johnson had failed to assert that the alleged delay in treatment with Rebetron had caused him any injury; 2) their initial refusal to treat Johnson with Rehetron therapy was justified hy medical reasons; and 3) they were entitled to qualified immunity. Initially, both sides agreed that, even t1lOugh all ofJohnson's doetors reconunended Rebetron therapy, that "does not mean that the Constitution required that he receive it." The court held that Johnson's positive drug test result, which occurred in May 1998, was '''evidence of active substance abuse' within the meaning of the DOCS' practice," but that alone did not end the court's inquiry. The court held that "if Johnson had evidence from which a reasonable jury could conclude that the defendants subjectively knew ofan excessive risk to his health or safety in their following the Guideline, such evidence would presumably constitute proofofthe 'subjective' prong ofthe deliberative indifference standard." The courl examined the medical evidence submitted by both sides, not to determine which medical view was correct but to determine "whether there [was] any disputed issue offact as to whether the defendants reasonably could have harbored the Page 20 belief that the view embodied in the Guideline was correct. This is because if they held such a belief, it would be impossible for a jury to conclude that they had the subjective intent necessary to show deliberate indifference to Johnson's medical needs." The court explained that the issue was not "the arguments that may now he made regarding the wisdom of the Guideline but rather what apparent basis it had at the time." Tbe court then concluded that the defendants submitted sufficient evidence that they had valid medical reasons justiJying the denial ofthe therapy to Johnson, and that Johnson had fuiled to rebut the defendants' evidence that their "treatment ofJohnson was consistent with the DOCS' Practice Guideline and that tbe Guideline was based On medical evidence that was apparently reliable at tbe time." Finally, Johnson ar{,'1led that the defendants were deliberately indifferent to his medical needs by not providing him with the recommended treatment because drug lISe under the DOCS' Practice Guideline was not a per se bar to treatment, but ratber was merely a faetor to be considered. The court found that the issue was "whetber the defendant prison officials knew that tbeir lISe of the factor as a complete bar to Rebetron therapy presented an excessive risk to Johnson's health or safety," and held that tbere was no evidence to support such a finding. First Amendmem - Freedom ofReligion - Update Court Accepts DOCS' New Guidelines 011 "Five Percellter" Literature alld Practices Marria v. Broaddus, 2004 WL 1724984 (S.D.N.Y.) (July 30, 2004) In an article that was published in 2003 • Volume 13 • Fall Issue of Pro Se, we reported on the case of Pro Se VoL 14 No.3 Marria v. Broaddus, 2003 WL 21782633 (S.D.N.Y. July 31, 2003), a Section 1983 action, in which the district court reversed DOCS' long-stauding ban on Five Percenter literature and practices, finding that the ban violated the inmates right to freedom of religion. In his original case, plaintiff Marria bad alleged that the defendants violated tbe Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) by refusing to accommodate his religious beliefs as a member ofthe Nation ofGods and Earths (Nation). The court issued an opinion holding thatthe Nation was a religion whose sincere adherents were entitled to accommodations under RLUIPA, granting the plaintiffsome ofthe accommodations he sought, and remallding the rest of his claims to DOCS to reevaluate their policies in light of the court's bolding. DOCS then crafted new policies to aecommodate Five Percenters and returned to eourt to request that the court allow DOCS to adopt these new policies as protocol for accommodating members ofthe Nation. After reviewing the proposed protocols, the court granted DOCS' application for an order adopting a set of proposed protocols. The court found that evidence submitted by DOCS supported its position that the law docs not require it to allow members of the Nation to congregate. Therefore, altbough the protocols do provide for one-on-one meetings with ouL,ide volunteers, they do not allow members to congregate. A, part of the resolution of the case, DOCS agreed that each facility will post and maintain a copy of the protocols in tbe law library and general library. For a copy of the approved protocols, please write to Central Intake, Prisoners' Legal Services, 114 Prospect Street, Ithaca, New York 14850 ".g.2\ Pro Se Vol \4 No.3 which "can only be eured by a new deadlock instruetion from the Legislature." The Case Court ofAppeals New York's Death Penalty "Deadlock Provision" Found Unconstitutional People v. Lavalle, 2004 WL 1402516, (Ct. of API'. June 24,2004) In a hotly contested 4-3 decision, tile Court of Appeals effectively ruled that New York's death penalty statute is unconstitutional. The statute eontains what is referred to as a "deadlock provision," whieh requires that jurors responsihle for sentencing at the penalty phase must he told that, if they cannot make a decision hetwC<c'll punishing with death or life-without-parole, the defendant will some day he eligihle tbr parole. The Court held that such a deadlock provision violates the New York State constitution, stating that "a vote for life imprisonment or dt'ath, driven hy the fear that a defendant might be parole-eligible ifjurors fail to re.,ch unanimity, does not satisfY the heightened standard of reliability required by our Stale Constitution." When the statute was originally drafted, there was a great deal of debate concerning the deadloek provision. Proponents argued that it was necessary for a hung jury to know what would happen if they could not reach a verdict. Critics expressed concern that the deadlock provision could have a coercive effect on a juror, in that a juror leaning toward voting for life-without-parole might be inclined to vote for thc the death penalty simply out offear that any other vote would result in the aceused being released out onto the street someday. Regardless ofthe merits of both arguments, the Court held that the provision, as it is written, creates a defect in the existing statute In the early morning of May 1997, Cynthia Quinn, a Long Island teacher and track coach, was raped and murdered while out for her daily 6:00 a.m. run. A subsequent investigation resulted in the arrest of Lavalle, who ultimately confessed to the murder. The trial began in June 1999 and lasted 17 days. The prosecution presented 41 witnesses and 180 exhibits. The defense did not present any witnesses. Lavalle was found guilty and on August 6, 1999, after the penalty phase of the trial was completed, he was sentenced to death. The Appeal On appeal, Lavalle's defense counsel raised a number of issues. By the time the case reached the Court of Appe.~ls, the deadlock provision issue was before the eourt, together with issues coneerning: jury selection; self-representation; the existence of Brady material; inflammatory testimony; and an improper smnmation by the prosecutor. The Court of Appeals found for the prosecution on all ofthe issues exeept for the deadlock provision. The Decision In comparing New York's deadlock provision to those in other states, the Court found that New York's CPL §400.27(J0) "is unique in that the sentence required after a deadlock is less severe than the sentences the jury is allowed to consider. No other death penalty scheme in the country requires judges to instruct jurors that, if they cannot unanimously agree between two choices, the judge will sentence [the1defendant to a third, more lenient, Pro S. Vol. 14 No.3 Page 22 choice." The Court then noted that "[s)tudies have found that jurors tend to 'grossly underestimate how long capital murderers not sentenced to death usually stay in prison. ,,, Because ofthis, when faced with the choice provided for in the deadlock provision, "jurors might impose the death penalty on a defendant whom they helieved did not deserve it simply because they fear that the defendant would not serve a life sentence." The Court commented that the New York State Legislature had made it clear that it helieves that a person convicted of a capital murdcr should have only two options, death or life-without-parole. And yet, the Legislature passed a statutc that tells a jury that although it may not impose a sentencc of life with parole, if it cannot agree on death or lift}without-parole, then the sentencing court will impose a sentence of lite with parole. Such a "deadlock instruction interjects the fear that, if jurors do not reach unanimity, the defendant may be paroled in 20 years and pose a threat to society ill the fhture. Yet, in New York, a defendant's future dangerousness is not a statutory aggravator the jury may consider." Thus, held the court, "[b)y interjecting future dangerousness, the deadlock instruction gives rise to an unconstitutionally palpable risk that one or more jurors who cannot bear the thought that a defendant may walk the street again after serving 20 to 25 years will join jurors favoring death in order to avoid the deadlock sentence." Thc Court noted that "[f]or jurors who are inclined toward life without parole, the choice is between death and lite with parole, a Hobson's choice in light of the jurors' likely concerns over defendant's future dangerousness. The cboice of death results not through 'a comparison ofviews, and arguments among thejurors themselves,' but through fear and cocrcion." The Court admitted that there may be instances where a juror who favored deatb over life without parole would vote for life without parole, rather than allow the defendant to be sentenced to life with parole. "That, however, does not cure the coercive effect of thc deadlOt'k instruction before us," said the Court. "The coercive effect is not relieved by recognizing that some jurors may be coerced in the opposite direction." The Court made reference to various commentators who have heen critic,al ofNew York's death penalty statute, quoting one commentator as saying: "The only possible reason for having this cockeyed sentencing scheme - and for insisting that capital jurors be informed ofit - is to put pressure on jurors in the minority holding out for life to switch to death so that the defendant is not made eligible for parole as a result of a non-unanimous verdict." The importance of this decision cannot be overstated. The existence ofthe death penalty in New York has been and will continue to be a hotly contested issue. The New York Court ofAppeals has consistently approached this issue with great caution, realizing the vast implications of upholding a death sentence. "Because death is qualitatively different, there is a 'corresponding differencc in the need for reliability in the determination that death is the appropriate punishment in a specific case. Whether a juror chooses death or life without the possibility of parole, the choice is driven by the fear that a deadlock may result in the eventual release of the dcfendant. Under New York's deadlock instruction the ehoicc is not, as it should be, the result of a reasoned understanding that it was tbe appropriate One. '" FOIL Decisioll New York Civil Liberties Union v. City of Schenectady, 2 N.Y.3d 657 (2004) At first, the question before the Court ofAppeals was whether police officer reports relating to use of lurce were subject to tile Freedom of Information Pro Se VoIl4 No.3 Law (FOIL), but a ralher bizarre turn of procedural events left the Court with little to decide. In April 2000, the NYCLU made a FOIL request to the City of Schenectady for "[aJII documents...referencing... [u]se of force by police ofIicers against civilians." When the city o~jected to the request as being too broad, the NYCLU amended its request, asking for "[i]ncidents prepared by police omcers pertaining to use of force." After a year passed without any response trom thc city, the NYCLU filed suit. The city responded by claiming that the records being requested were the same as those requested in Matter of Gannet, Co.. v. James, 86 A.D.2d 744 (4'" Dep't 1982), Iv denied 56N.Y.2d 502 (1982), where the court held that thc Rochester Police Department 'use of forcc' form was exempt from disclosure under FOIL. The lower court agreed. The NYCLU appealed, arguing, among other things, that the Court ofAppeals decision in Matter ofGould v. New York City Police Dep't., 89 N.Y.2d 267 (1996), effectively overruled the Gannet case. (Gould involved a situation where a FOIL request was made to a New York City Police Department seeking c,omplaint follow-up reports. The Court of Appeals found that such reports were not exempt from disclosure under FOIL, regardless of the fact that they might be classitied as intra-agency material, since such reports included tactual data.) The Appellatc Division, Third Department, however, disagreed and afIirmed the finding ofthe lower court, holding that the Court of Appeals' decision in Gould did not affect the Fourth Department's holding in Gannet. The Court of Appeals granted the NYCLU's motion for leave to appeal. After the NYCLU filed its brief, the City advised the Court that there had been a misunderstanding and that it did not even have use of force record~, as it has "no routine procedure tor reporting use of foree ...." The City indicated that there may be references to use of force in standard Page 1,1 incident report.~ and that such reports would be available to the public under FOIL but that, also, there may be such references in internal affairs investigations, and those documents would be exempt fTOm FOIL. The City also indicated that it would be willing to provide information that could be disclosed to the NYCLU. However, the Police Chiefsubmitted an afIidavit stating that it would be too burdensome to search thousands ofreports looking for references to use of force. A very fru.~trated Court of Appeals initially addressed the fact that, although both parties had briefed the legal issue ofwhether the Gannet case had any continuing viability after the Gould decision, such an issue had become an "academic one." The Court noted that it does not decide academic issues. Thus, the Court was left with an admission by the City that it did have some reports that would reference use oftorce incidents and that the City was willing to provide those reports under FOIL, but the City also took the position that searching the thousands of documents involved would be too burdensome. The Court of Appeals determined that, based on the City's admission that documents that should be disclosed under FOIL existed, the Appellate Division's decision finding that the denial of the petitioner's request was "entirely proper" could not stand. The Court admitted that there may now be some lack ofclarity as to what documents are subject to disclosure under FOIL, but cautioned the defendants that "[w]hat is clear above all is that the 'runaround' must end." Citing the Gould case, the Court reminded the City that "government record~ are 'presumptively open,' statutory exemptions are 'narrowly construed,' and the City must articulate a 'particularized and specific' justification for nondisclosure." Pall" 24 Disciplinary Civil Procedure/Administrative Regulations: Appelll Response Period is Directory Matter of Goberdhan v. Goord, 776 N.Y.S. 2d 648 (3d Dep't 2004) Petitioner Goberdhan was charged with various rule violations. After being found guilty, he filed an administrative appeal with DOCS, which was received on September 9, 2002 and ultimately decided on October 29,2002. The petitioner filed an Article 78 claiming, among other things, that he did not receive a decision on his administrative appeal within the 60-day time period, as is required in the rcgulations. Title 7 N.Y.C.R.R. §254.8 requires that an administrative appeal be decided within 60 days from the date it is received. The court found that the administrative appeal in this case was decided by the respondent within the 60 days, as required by the regulation, and that there was nothing in the record to support the petitioner's c1ainl that he did not receive the determination within that period. Moreover, the court noted, "[e]ven ifhe did not, such time period is directory, rather than mandatory, and does not warrant disturbing the determination of guilt absent a showing of substantial prejudice, which had not been made here." CivilProcedure/Servic-eRequirements: l/lsufficielu Funds No Excuse for Failure tf} Serve Order to Show Cause Matter of Adams v. Goord, 778 N.Y.S. 2d 554 (3d Dep't 2004) Petitioner Adams was found guilty of various prison disciplinary rules and subsequently brought an Article 78 to challenge the disposition. The respondent~ moved to dismiss the petition based upon Pro Se Vol. 14 No.3 lack of personal jurisdiction, claiming that none of the respondents had been served in the manner directed by the Order to Show Cause. Adams admitted to the court, via a letter, that he did not furnish the Order to Show Cause to the respondent~, but stated that his failure to do so was due to his lack of funds. The lower court then denied the respondents' motion, ordered the respondents to file an answer, and transferred the proceeding to the Appellate Division. The Third Department held that, even though the respondents did not appeal the detennination of the lower court to deny the respondents' motion to dismiss, it would exercise its power to review the procedura I error that had prcviolLqly been raised by the respondents. The court then granted the respondents' motion to dismiss, holding that "[w]hile an inmatc's failure to abide by the service requirements in an order to show cause may be excused upon a showing that [the] prison presented an obstacle beyond the inmate's control, petitioner's assertion of insufficient funds does not con.~titute such an obstacle." Contraband: Defense to Drug Charge Results in Contraband Charge Matter ofGolIZalez v. Goord, 779 N. Y.S.2d 602 (3d Dep't. 2(04) Petitioner Gonzalcz, an inmate, was c,harged with drug use. During that hearing, and apparently in an attempt to defend himself again~t the drug charge, he admitted eating pretzels which contained poppy seeds; he even gave the heariug officer the empty bag of pretzels which contained some loose poppy seeds. As a result, the petitioner was charged with possession of contraband and found guilty, the detemJination being upheld on appeal. In his subsequent court challenge, the petitioner asserted that, because the pretzels had come through Pro Se Vol 14 No. 3 the paekage room lawfully, he should not he charged with possession of contraband. The court disagreed. The court relied on the language ofthe rule violation regarding eontraband, which states that "[i]nmates shall not he in possession of any contraband items" and that "[c]ontraband is any artiele that is not authorized by the superintendent or designee." The court noted that the superintendent had previously sent out a memo to the inmate population, which advised that "'poppy seeds' and 'poppy seed prnducts' are not allowed into this facility as it is considered contraband." Based upon the petitioner's admission that he possessed a bag containing poppy seeds, the court found that the charge was supported bysubstantialevidenc~ Contralxuul!Dr(lgs: Inference ofPossession Matter of Torres v. Selskv, 777 N.Y.S.2d 815 (3d Dep't 2004) Petitioner Torres was charged with unauthorized possession of a controlled substance after marijuana in a toilet paper roll was discovered in his cell. Torres filed an Article 78 to challenge the finding of guilt at his disciplinary hearing. He claimed, among other things, that the misbehavior report was defective because it failed to specily the role he played in possessing the contraband which was found in a common area ofa cell he shared with another inmate. The court initially rejccted all of his arguments, since he failed to raise them at his underlying hearing. However, the court went on to hold that, even if it were to address his claim of a defective misbehavior report, it would find it to be without merit. "[T]he fact that the cigarette was found in an area within the petitioner's control, notwithstanding that his celbnate also had access to the area, leads to an inference of possession by petitioner," the court held. l'"g.25 InAlJsentia Hearing: Inmate's Conduct Warranted Exclusion From Hearing Matter ofAlexander v. Ricks, 779 N.Y.S.2d 606 (3d Dep't 2004) It is well-established that prisoners have both a federal constitutional due process right and a slate right under DOCS' regulations to attend a prison disciplinary hearing. Wolffv. McDonnell. 418 U.S. 539 (1974); Title 7 NYCRR §§ 254.4-254.6. However, it is equally clear that the right to be present is not an absolute one. Violent, unruly, or disruptive conduct can justify the exclusion or removal of an intrulle from a hearing, but there must be evidence ofsuch conduct on the record to support such an exclusiou or removal. See Mattcr of Berrian v. Selskv, 306 A.D.2d 771, 772 (3'" Dep't 2003); Matter of Johnson v. Goord, 297 A.D.2d 881 (3'" Dep't 2002); and Matler of Beckles v. Selsky, 273 A.D.2d 584 (3'" Dep't 2000). In March 2001, Alexander received six different mishehavior reports, resulting in five different Tier hearings. All five hearings were condueted by the same hearing officer. To minimize confusion, the five hearings are referred to as the Hebert, Cook, Baker, Herrick, and PremolWinters hearings, named after the officers who wrote the various misbehavior reports. All the hearings commeneed on March 23, 200 I. On that day, Alexander was removed from the Hebert hearing, following a warning by the hearing officer that he would be removed ifbe continued to aet in an "insolent" and disruptive manner, and after the hearing officer found that he had continued to hehave in such a manner despite his warnings. Alexander did not challenge bis removal from that hearing. After his removal from the Hebert hearing, the other hearings were reconvened later that day and again on Pagel6 March 26. Upon rcconvening those hearings, no mention or reference to the removal from the Hebert hearing was made. On the morning of March 26, during the reconvened Cook hearing, the hearing officer removed Alex.ander from the hearing for alleged disruptive behavior, refusal to obey directions, and for swearing and threatening conduct. Alexander maintained that he was simply, but forcefully, objecting to violations ofhis due process rights. After his ordered removal from thc hearing, Alexander became vcry upset and physical force was used to remove him from the hearing room. Thereafter, the hearing officer reconvened tbe remaining Herrick, Baker, and PremolWinters hearings in Alexander's absence, finding that Alexander had forfeited his right to attend the remainder of those hearings, both as a result of his conduct in connection with the Cook hearing and his behavior that had led to his earlier removal from the Hebert hearing. Following unsuccessful administrative appeals, Alexander filed an Article 78. In March 2003, tbe Supreme Court, Franklin County, held that Alexander's removal from the Cook hearing was not justified, finding insufficient support in the hearing record that Alexander's removal was necessitated by reasons ofinstitutional safety and correctional goals. Namely, there was no evidence that Alexander swore or was in any way threatening prior to his exclusion from the Cook hearing. As well, the Supreme Court held that the hearing officer "failed to articulatc any clear warning to Alexander that he would be excluded from the hearing ifbe continued to ignore the hearing officer's admonishments to be quiet." However, the Supreme Court did uphold the hearing officer's decisions to exclude Alexander from the remaining Baker, Herrick and Premo/Winters hearings. The Court found support for the exclusion from those remaining three hearings based upon Alexander's earlier disruptive conduct at the Hebert hearing, and his disruptive "physically out-of-control Pro se Vol. t4 No. 3 conduct" following his ordered exclusion from the Cook hearing. The petitioner appealed the decision upholding his exclusion from the Baker, Herrick and PremolWinters hearings. The petitioner argued that the hearing officer's removal ofhim from the earlier Hebert hearing could not be relied upon to support his subsequent renlOval from the three remaining hearings because he had becn allowed to attend those hearings after his removal trom the Hebert hearing, with no mention made of his behavior at, and removal from, the Hebert hearing. The petitioner also argued that, sinee the Supreme Court found that the removal from the Cook hearing was improper and unsupported by the record, it was inappropriate and unreasonable for the hearing officer to immediately reconvene the remaining three hearings without giving the petitioner a chance to attend those hearings. There was no need, petitioner asserted, for thc hearing officer to quickly reconvcne those hearings; rather, he should have provided a coolingoff period and then warned the petitioner that any further outbursts or unruly behavior would result in his exclusion from the remaining hearings. The Third Department rejected the petitioner's arguments, finding that there was adequate support and justification for his removal from these hearings. The court held that it could not say that the hearing officer abused his discretion in removing the petitioner from the remaining hearings, "given the proximity in time between the violent outburst and the other hearings, the nature of the outburst itself, and petitioner's prior conduct [at the Hebert hearing]." While the court did not address the petitioner's argument that there was no need, and indeed that it was unreasonable and an abuse of discretion for the hearing officer to immediately reconvene those hearings following the petitioner's removal from the Cook hearing room, the Court implicitly rejected that argument. Pro So Vol 14 No.3 The petitioner was represented by Prisoners' Legal Services. Practice Tip: When facing a Tier hearing, while you have the right to, and indeed should, clearly state on the record any and all objections you may have, there is /U) need to he impolite. hostile, or angry when doing so. Further, you should take heed 'if any clear warnings from the hearing offieer regarding the type ofbehavior she or he deems disruptive or unrulY and which could result in your removalfrom the hearing. Ifyou disagree with the hearing officer's characlcrization of such behavior as unruly, politely slale this an II"" record, and then move an. Finally, ifyou believe you are improperlY treated hy the hearing officer, including being improperly excluded or removedfrom the hearing, the appropriate time, place, and manru,r to challenge this is by a respectfUl verhal objection an Ibe record of the hearing and a uritten objection in your appeal. Denial of DigM To Witne.sses: New Evidence Results in Previously Denied Witne.ss Becoming Relevant Matter of Escoto v. Goord. 779 N.Y.S.2d 314 (3d Dep't 2004) As a result of a cell search in which a sharpcned can lid was found, petitioncr Escoto was charged with violating prison disciplinary rules prohibiting possession of a weapon and altering an item. At his hearing, Escoto, a non-English-speaking inmate who required an interpreter, testified that he had heen given the can lid by another inmate for the purpose of cutting vegetables and requested four inmates as witnesses stating that they would corroborate his defense. The hearing officer denied his request, stating that their testimony would be redundant. However, the hearing officer then heard testimony from a correction officer who stated he had Page 27 searched the cell of one of the requested witnessed and had found a note, written in English, which apparently gave instructions to the witness as to how to testilY to the incident for which the petitioner was charged. The petitioner denied he wrote the note saying, through his interpreter, that he knew nothing about the note and could not write in English. He suggested that perhaps the note was written by his neighbor to inform the inmate as to what he would he expected to testilY to ifhe were called to the hearing. At this point, Escoto reiterated his request to call his witnesses. The hearing officer ignoreJ his request, while at the same time stating, on the record, that "the note was relevant since it evinced an attempt by petitioner to coerce the testimony of others." The hearing officer proceeded to find Escoto guilty on both charges. The court found that, "[u]nder these circumstances, the hearing officer erred by excluding the testimony of the witness in whose cell the note was found." Although an inmate's right to call witnesses at a disciplinary hearing is somewhat limited, unless the testimony is irrelevant, redundant, or would jeopardize institutional safety or correctional goals, a requested witness should be allowed to testilY. The court found that, "[w]hile an initial exclusion of this witness's testimony as redundant was a proper exercise of discretion, the situation changed when the hearing officer took the testimony ofthe correction officer who had found the note...." This new evidence made the requested witnesses' testimony relevant, especially in light of the tact that the hearing officer determined that the note had been written by the petitioner, and the hearing officer's "previous determination of redundancy was no longer supported by a sufficient basis in the record." 1'.... So Vol. 14 No.3 Denial of Right To Witn~:~es: COllrt Finds Supervisors' Testimony Regarding Their Understanding ofFacility Memo, IrMI!l!Ilm. Matter ofKoehl v. Senkowski, 779 N.Y.S.2d 851 (3d Dep't 2004) In an unfortunate decision, the Third Department recently held that testimony from an inmate's supervisors, to the effect that they did not understand a facility-wide memorandum, which apparently prohibited legal papers in the prison's industry, was properly precluded from a Tier 111 hearing as irrelevant. Inmate Koehl was found guilty of, inter alia, possessing property in an unauthoril.ed area. At his hearing, although Koehl admitted that he did possess the legal documents in the unauthorized area, he requested that two ofhis supervisors he allowed to testiJY as witnesses, stating that they would declare that they did not understand the memorandum. The hearing officer denied the requested witnesses as irrelevant. Koehl also requested a third witness, a civilian supervisor, whom the pctitioner claimed would testilY that she gave Koehl pemlission to bring his legal documents into the industry area to he notarized. The hearing officer also denied that witness. The court held that the witness deniaIs were appropriate. As to the first two witnesses, the court found that the "supervisors' understanding of the memorandum was irrelevant to the issue of whether petitioner violated the prohibition on possession of legal papers." With respect to the civilian supervisor, the court held that this testimony, too, was irrelevant, since "any testimony that petitioner sought permission to violate the dictates ofthe mClllOrandum from a civilian employee without the authority to grant such permission would not support a defeuse to the charges." The court failed to distinguish their decision in Matter of Bole v. Coughlin. 521 N.Y.S.2d 889 (3d Dep't 1987). In Bole, the court annulled the disciplinary hearing at issue, holding that the witness testimony which was requested, testimony very similar to what was requested by Koeh~ should have been allowed, as it may have resulted in mitigation of the penalty imposed. Substantial Evidence: Lack of IlJVon",mmt of Other Inmates Does Not Negate Charge of Organizing a Demonstratioll Matter ofSchuler v. McCray, 778 N.Y.S.2d 237 (3d Dep't 2004) The Superintendent of Gowanda received an anonymous letter in February 2003, setting forth various complaints and threatening a revolt. A subsequent searchofpetitioner Schuler's cell resulted in the discovery of a typewriter ribbon on which the first six lines ofthe text ofthe anonymous letter were imprinted. Schuler was then served with a misbehavior report charging him with lnaking threats, organizing a demonstration, and rioting. He was found guilty ofmaking threats and organizing a demonstration, but not guilty of rioting. After an unsuccessful administrative challenge, Schuler fIled an Article 78 alleging, among other things, that the lack of involvement of other iumates rendered the charge of organizing a demonstration unsupported by substantial evidence. The court rejected the argument, holding that lack of involvement of others did not render the charge unsupported hy substantial evidence, since the letter clearly indicated "the author's intent to ineite collective action on the part ofthe prison population if certain issues" were not addressed. P.... Se Volt" No. 3 Unauthorized Organizational Muter/al: Doi!s Have a W"uiget? Gentle v. State of New York. Claim No. 9692 (Ruderman, J.) Matter of Lorenzo v. Neuwrith, 778 N.Y.S.2d 236 (3d Dep't 2004) In this case, the claimant was an inmate at Sing Sing in 1996, working in the filcility workshop when he "amputated the left upper joint of his left middle finger and severely lacerated the fourth finger ofhis left hand." He sued in 1997, claiming that the injury was due to an unsafe router that did not have the proper safety guards in place. After he filed his claim, the claimant requested certain documents through discovery, including an accident investigation report and reports of weekly maintenance inspections, reports mandated to he kept by DOCS' own Directives. After the defendant failed to produce the requested documents, the claimant made a motion to strike the defendant's answer. In response, the defendant submitted an affidavit from the Fire and Safety Officer, who indicated that he did not make a "formal report" but that he had investigated the incident, pursuant to DOCS' Directives. He further stated that he ooly keeps such records for a period of three years and thus, by the time claimant requested them in 1999, they would have been destroyed. The court held:'''To impose the drastic remedy of striking a pleading pursuant to CPLR 3126, there must he a clear showing that a party's failure to comply with discovery demands was willful, contumacious, or in had faith. '" Based upon the evidence presented, the court decided "[w]hether the destruction of the maintenance records was willful, and the circumstances surrounding the absence of a formal report by the Fire and Safety Officer, present credibility issues and genuine issues of fact which cannot be determined at this time and must await resolution at trial." The court then denied the claimant's motion to strike the defendant's answer, finding that it would reconsider the claimant's application to strike the defendant's answer after it had the opportunity to observe the demeanor of the A~l'Ie Petitioner Lorenzo, an inmate, was charged with destruction of state property and displaying unauthorized organizational material when a gang symbol was discovered on the inside door of his medicine cabinet. At his subsequcnt hearing,petitioner Lorenzo denied that he had placed the &)'Illbol on the door, and elicited testimony that the symbol was "worn" and "appeared to have been on the medicine cabinet door for some time." Lorenzo was found guilty of displaying unauthorized organizational material but not guilty of destruction of state property. He filed an Article 78 proceeding, claiming that the finding of guilt on one charge was inconsistent with the finding of not guilty on the other. The court disagreed. The court found that the determination ofnot guilty on the destmction ofstate property was consistent with the testimony at the hearing, which indieated that the symbol was so worn it may have been On the cabinet befofC Lorenzo occupied the cell. However, with respect to the displaying of unauthorized organizational material, the court held, "petitioner was aware that the display ofsuch matcrial was prohibited, but took no action to remove or report it during the seven months that he occupied the cell." Court ofCltlims Failure to Provide Requested Documents Results ill Negative lFiferellce Being Drawn 1'.... S. VoL 14 No.3 { witnesses at trial. However, the court did find "claimant [made] a sufficient showing to warrant an adverse inference that, had the records sought been produced, they would have been unfavorable to defendant." In/ormation Set Forth In Notice 0/ Intention Found Adequate to Place State on Notice WM& facilities intermittently, upon information and belief from August 1998 through September, 1998.,n Such information, the court held, was sufficient to place the State on notice that the claimant was asserting that the death was caused by the medicalnegligenec of the State. The court found that tbe information provided in the Notice was sufficient for the State to investigatc the claim and assess its liability. Rodriguez v. State ofNew York, 779 N.Y.S.2d 552 (2d Dep't 2004) Claimant, Esther Rodriguez, filed a Claim against the State, claiming that the State's negligent medical care had caused the death of an inmate. The State moved to dismiss, claiming that the Notice of Intention and the Amended Notice oflntention to File a Claim were insutTicient, in that they failed to provide the defendant with sutTicient notice of the alleged negligcnce that caused the wrongful death. The Court of Claims granted the defendant's motion to dismiss and the claimant appealed. The AppcllateDivisioll, Second Department, held that the Amended Notice of Intention filed hy the claimant was sufficient. The whole purpose of a Notice of Intention is to provide "sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liahility under the circumstances." The Notice must set forth the time and place where the claim arose and the nature of the claim. The court noted, "[i]n describing the general nature oftbe claim, the notice ofintentionneed not be exact but should provide an indication of the manner in which the claimant was injured and how the State was negligent." In this case, tbe claimant, in her Amended Notice oflntention, stated, '''the wrongful death of Gregory Darby nceurred...as a result ofthe negligence of the State of New York as foIlows:...[t]reatment for his condition of congestive heart and the iJ~uries herein sustained took place ... at Downstate Correctional Facility and/or its medical Parole Denial Based on Incorrect In/onnation Reversed, New Hearing Order Matter of Lewis v. Travis, 780 N.Y.S.2d 243 (3d Ocp't 2004) In 1983, petitioner Lewis was convicted of murder in the second degree and robbery in tbe first degree and sentenced to prison. In 2002, he made his first parole board appearance at which he was denied parole with the Board, placing particular emphasis on his instant offense. After the parolc denial was upbeld on administrative appeal, petitioner Lewis filed an Article 78 proceeding. Lcwis challenged the parole board's decision, contending that it improperly focused all of its attention on his instant offense and disregarded his many institutional achievements. The court disagreed, finding that "[i]t is well settled that the Board is not rC''1uiJ'ed to enumerate, give equal weight to, or explicitly discuss every factor considt':fed." In reviewing the record, thc court found that the Board was well aware of petitiouer Lewis' achievement while in prison. The court did, however, find that the Board erred when it incorrectly referred to petitioner Lewis' conviction as "murder in the first degree." Because the Board relied on incorrect infomlation to deny petitioner Lewis parole, the court ordered the decision reversed and granted a new hearing. 1'.... s. Volt.. No.3 Are Y011 Entitled to Prior sentence Credit Under Poople v. R.ichamson? In October, 2003, the New York State Court of Appeals was faced with the issue of whether a sentencing court could change a defendant's sentences from running concurrently to running consecutively if, in its original sentencing, it had not specified as to how the new sentcnce should run. Peollie v. Richardsop, 100 N.Y.2d 847, 767 N.Y.S.2d 384 (2003) In Richardson, the prisoner was convicted of a new crime while serving parole on a prior A-I felony conviction. In rendering a sentence, the court was silent on the Sentence and Commitment paper as to whether this new sentence would run consecutively or concurrently to the prior undischarged sentence. Penal Law § 70.25(IXa) provides that, where tlle court does not specifY how thc sentences shall run, they are deemed to run concurrently. Therefore, DOCS, in calculating the sentences, determined that Richardson was entitled to concurrent credit for the prior sentence. After learning of this calculation, however, thc People (i.e. the District Attorney for New York County) moved to reopen the sentencing to allow the court to clarifY that it had intended for the sentcnct'S to run consecutively. Defendant Richardson opposed the motion. The court granted the People's motion and specified in a new Sentence and Connoitment paper that the new sentenc,e was consecutive to the prior undischar/,'Cd term. The defendant appealed and the Appellate Division affirmed the lower court. On appeal, the Court of Appeals reversed. The Court held that the trial court did not have the authority to modify a lawful sentenc,e of imprisonment "where the court did not specifY whether the s(''IItenee was to run concurrently or consecutively to an undischarged term of Pag_ 31 imprisonment on an unrelated conviction." The Court of Appeals found that the trial court's silence in the original Commitment paper rendered the sentences concurrent. Richardson was therefore entitled to have time he had served on the prior conviction credited against the newly-imposed sentence. This case has generated much interest among prisoners who believe DOCS has incorrectly calculated their sentence. PLS has reccived many letters from prisoners seeking to benefit from the Richardson casco Unfortunately, Richardson has seemed to create widespread contusion, and in many instance.s, Richardson is simply not applicable. The following will help explain whether Richardson and the Penal Law provisions at issue in that case mayor may not be applicable to your situation. Thc Richardson case may at first appear to support the position that whenever the court is silent in a commitment about how a ncwly-imposed sentence is to run in rclatiou to any undischarged sentence, the newly-imposed senteuce must run concurrently. However, that interpretation is not correct. The Court, in deciding Richardson, did not interpret the Penal Law in any new way. The ruling turned on several specific exceptions to the "silence equals concurrent" rule. Specifically, §70.25(l) states that "Except as provided in subdivisions two, two-a, and five of this section," silence means concurrent. Thus, to determine if you are entitled to concurrent credit because of the court's silence in your commitment paper, you must first (''IIsure that none of these subdivisions apply. The subdivision provision that most often prevent.~ concurrent sentences tbrollgb silence is §70.25(2-a). Tllill scdion provides that, wbere II persoo is sentenced as a predicate felony olJellder, meaning a second felony olJender Wilier §70.04, a second violent felolly ofliender under §70.06, a persistent felony offender under §71l.tO, or a persistent violent felony olJooder lInder §71UIIl, such newly.illlposed sentence IIIllSt rUII conIlcclmvely to any nndisebarged tenn. That P&g.32 1'.... Se VoL _lIS the judge does IIOt Ii.lIve discnltioll to islIne a COlICmTeot sentenee. Much of the confusion generated by the Richardson decision seems to be that the Court did not make clear that, although Richardson's prior sentence for murder (an A·I offense) was an "undischarged term of imprisonment," Richardson was not a second felony or second violent felony offender under either §70.04 or §70.06. A-I offenses are specifically exempted from being considered prior offenses, which would make a person a second felony offender or second violent felony offender. Thus, Richardson did not fall under §70.25(2-a). Because of this, where his Commitment paper was silent as to how his sentence should run, a concurrent sentence t4 No. 3 on his new conviction was a "lawful" sentence under §70.25(1). In short, if you were SCEl!en(.'Cd ouder my of the predicllte felony offender statotes, your sentences mBSt I'UII consecutively. even where the sentencing court WIIS silent aooot how they wonld I'UII in the SentellCe ed Commitment paper. The Penal Law requires that predicate felony offender sentences must run consecutively to prior undischarged terms. Because of this, if your commitment paper is silent lIS to how your sentences should run, and you were sentenced lIS a repeat offender pursuant to one of the sections listed in Penal Law §70.25(2-a), DOCS must run your new sentence consecutively to your old sentence, pursuant to the mandates of the Penal Law. Subscribe to Pro Se! Pro Se is now accepting individual subscription requests. With a subscription, a copy of Pro Se will be delivered direetly to you via the facility correspondence program. To subscribe, send a subscription request with your name, DIN number and facility to Pro Se, 114 Prospect St., Ithaca, NY 14850. Please send only subscription requests to this address. For all other problems, write to Central Intake, Prisoners' Legal Services, 114 Prospect St., Ithaca, NY 14850. EDITOR: KAREN MURTAGH-MONKS, ESQ. CONTRIBUTORS: TOM TERRIZZI, ESQ., MICHAEL CASSIDY, ESQ., BETSY IRlTCHINGS, ESQ. COPY EDITOR: FRANCES GOLDBERG PRODU(''TION: FRANCES GOLDBERG EDITORIAL ROARI): TOM TERRJZZI, ESQ., BETSY STERLING, ESQ. KAREN MURTAGH-MONKS, ESQ. Pro Se Is printed and Jlslributeil free through /l ge1U!FtJUS grantfrom the New York 8ar Association.