Vol. 13 Number 1: December 2002 Publisbed by Prisoners' Legal Services of New York

SUPREME COURT: PRISONERS MUST EXHAUST
ADMINISTRA TlVE REMEDIES IN ALL CASES BEFORE FILING IN
FEDERAL COURT - NEW HURDLE FOR INMATE LITIGANTS
In two recent cases, the Supreme Court reiterated the requirement, contained in a 1995 law,
that inmates must exhaust their administrative
remedies before they can sue in federal court over
the conditions of their contlnement. The law, part
of the Prison Litigation Reform Act (or "PLRA")
states that no inmate may bring an action in federal
court concerning "prison conditions" unless he
shall first have exhausted the "available"
administrative remedies.
In both cases, the Supreme Court rejected the
interpretations of the law presented by prisoners.
In Booth v. Chumer, 121 S.O. 1819 (2001),
the Court rejected a prisoner's argument that the
exhaustion requirement should not apply if the
administrative remedy could not provide him with
the s;une relief - in his case, money damages that he W<lS seeking in federal court. In Porter v.
Nussle, 122 S.Ct. 983 (2002), the Court rejected a
prisoner's argument that the exhaustion
requirement should not apply to a single, isolated
incident of guard brutality.
By rejecting the prisoners' claims in these
cases, the court demonstrated that exhaustion of

conrt.
Significant
questions
concernmg
exhanstion remaIn, however. \Vhat
administrative remedies must be exhausted?
\Vhat does it tnean to "exhaust" an
administrative remedy? \Vhat happens if you
flil to exhaust? Are there any exceptions to the
exhaustion mle?
This issue of Pro Se takes an in-depth
look at the exhaustion requirement. \Ve start
with a closer look at the Booth and Porter
cases. We then exarninc some of the most
important questions still unanswered by those
cases. (continued on page 17)

adn1inistrative remedies is now a pre-requisite for

Development!>..............

t1ling 1111y case conceming prison life in federal

Also Inside ...
We're Back - a letter from the
t':xtcutivc Director ,

page 2

News and Briefs - New cases that may affect
your rirpts...............................

Y2K - The Legal Fallout..

page 3

.

..

page 11

Religious Freedom - New
. ,..page 13

New Fees and Filing Procedures for Article 78
Proceedings
page 16
"'u

Tbif pt1!jed Ji.-'tlJ supported Iij (J /;rant admi"isteflJd l!J the Nelli York State Zt7J"'ion of .nminaiJuJtice, emit'CJ. Poinls c:J l-iew in this
?kat/11m! are those ofthe tlllthor and do not tlcc/wan!y repruenl the o/Iicial-poJitiof/ orpolideJ if the Dil!!:fiotJ t!ICriminal jN,ftirt Senice.f.

PROSE -- WELCOME BACK
A Letter Fron> the Executive Director
We, at Prisoners' Legal Services, are excited to
be publishing Pro Se again. For those who have
never seen Pm Se, this newsletter is designed to
provide updates on legal issues affecting the rights
and responsibilities of New York State prisoners.
Since most prisoners must represent themselves at
administrative hearings and in court, understanding
the law is of critical importance. It is important to
know if you do or if you don't have a claim or
grievance. Pro Jewill help in that educational effort.
On the wall of my office, I have a framed copy
of the first issue of Pm St, published in November
1984. The banner headline announced "A New
Voice...." We stopped publishing Pm Se in 1998
when the funds for Prisoners' Leg,rl Services of
New York were cut off and we shut PLS down.
With this issue, we once again bring Pm Se to life.
Twenty-seven years ago, in the fall of 1976, a
group of dedicated lawyers affiliated with the New
York State Bar Association and several state
legislators responded to one of the prisoners'
complaints voiced during the Attica uprising in
1971. Prisoners complained that there was no
meaningful way to address senous concerns
regarding prison conditions. Prisoners had no
meaning!1.!1 access to the courts. These lawyers and
legislators, profoundly shaken by the Attica
experience, took that message to heart. Their
response was to create Prisoners' r..cgal Services of
New York to serve as a national tnodcl for
providing legal services to prisoners.
rVlany aspects of prison life in New York have
heen improved as a result of advocacy by PIS
attorneys and paralegals, in hard fought legal
battles. Some areas afli,cted by PIS advocacy
include irnl)rovetnents in the disciplinary process~
access to medical and mental health care, access to

the courts, protection for family visitation
rights, improved procedures for strip searches,
protection and expansion of the right to the
practice of many religions and the ability to sue
for compensatory damages for a variety of
wrongs, including being the victim of excessive
force.

/\1 the same time that PLS and other

inmate advocacy organizations were winning

court battles to improve conditions, federal and
state laws were passed a.l1d Supreme Court
decisions rendeied which have made it much
more difficult for prisoners today to file and
Wln cases.

The doc)r to the courthouse IS

slowly closing.
In 1998, funding for PLS was vetoed. The
progrmn virtually closed, with only two part
time attorneys rernaining. Thousands of cases
had to he closed and over two hundred cases in
litigation had to be abandoned. When funding
was restored late in 1999, a strong effort was
made to rebuild the program. Less than two
years later, however, it happened again: no
!;mding was provided in 20(l!. Staff was
reduced by two thirds and word went out that
PLS could not take any new cases. In March of
2002, funding was restored - but at a
substantially lower level than in previous years.
I relate this tale of woe to let you know
why there has been such a disru[)tion in lepal
services from PLS in the recent past. As of
today PLS is stable again - with a much smaller
staff and fewer ofllces. \Ve are accepting new
cases but only in a limited number of subject
<0

areas. But \-vith a weakened econorny and a

troubled state budget, uncertainty lies ahead.
Punding for legal services for those in need,

whether incarcerated or on the street, are in
short supply. Next years State budget will
almost certainly not contain money to expand
our resources. Further reductions in funding<:J

PrO

fix legal services appear likely.
We at PLS - the attorney'" pamlegals,
secretaries and other administratlve support staff will continue to do what we can, trying to be
efficient in addressing some of the most serious
problems facing prisoners in New York State today.
For example, one of the reports in this issne of Pm
Je talks about the filing of a statewide lawsuit being
co-counseled by PLS, which seeks to address the
critical problem of hOl1sing seriously mentally ill
inmates in SHU. In addition to that ch,Jlenge to
the policies and practices of the Department of
Correctional Services and the Office of Mental
Health, the staff at PLS will also continue to
represent individuals facing long box hits, especially
those who can't adequately represent themselves.
Which brings me back to Pro Je. \V'hile PIS
resources arc directed at a fC\v priority areas,
prisoners have to continue to do tnOfC on their
own. P111 Jewill hopefully help those interested in
learning about the changes in prisoners' rights and
responsibilities. \V'e hope it provides a valuable tool
for individuals who want to understand the state of
the law and, when necessary, to do the best job you
can in representing yourself.
Torn Tcrrizzi,

Executive Director
Prisoners' Legal Services

St, Vol. B No.1 Page 3

NEWS AND BRIEFS
Supreme Court: Prison OJ1icials Liable for
Cbaining all Inmate to a Hitcbing Post;
Qualified lmmunity Rejected
Alabama prison officials who handcuffed
an inmate to a hitching post for hours in the
hot sun violated his eighth amendment right to
he frcc from cruel and unusual punishment,
and prison officials could not claim qualified
immunity, ruled the Supreme Court in Ilope v.
Pelzer _U.s._, 122 S.Ct. 2508 (2002),
In this case, Alabillna prison offici'dls had
twice handcuffed an inmate to a hitcbing post
for disruptive conduct. On the first occasion
he was handcufTed for a two hour period and
was offered drinking water and a bathroom
break every 15 minutes. 'l11e inmate claimed
that his hands were handcuffed abovc shoulder
height, so that when he tried to move his arms
to improve circulation the handcuffs cut into
his wrists, causing pain and discomfort. On the
second occasion, after an al tercationwith a
guard, he was stripped of his shirt, placed in lcg
irons as well as handcuffs, 'Illd handcuffed to
the post for seven hours while beinob opiven
water only twice. lIe was also deprived of
bathroom breaks, and taunted by the guards.
The Court concluded that this conduct
violated the inmate's Eighth Amendment
rights. The "unnecessary-and wanton intliction
of pain upon the inmate was totally without
penological ;ustificatiou, held the court. Any
safety concerns raised by the inmate's ,Jlegedly
assaultive behavior had long since abated by the
time he was handcufTed to the hitching post.
The prison offici;Js, ncvertheless, knowingly
subjected him to a substantial risk of physical
harm, to the unnecessary pain caused by the
handcuffs and the restricted position of
confincn1(~nt for
a 7-hour period, to
unnecessary exposure to the heat of the sun, to
prolonged thirst and taunting, and to a
deprivation of bathroom breaks that created a
risk of particular discomfort and humiliation.
H

Pro Se Vol. 13 No.1 PaQC 4

Under these circumst;U1ces, the court concluded,
the use of the hitching post violated the "basic
concept underlying the Eighth Amendment,
Iwhichl is nothing less than the dignity of man."
Prison oftlcials argued that evcn if their
conduct had violated the Eighth Amendment, they
should not be held liable for damages on the
ground that they were entitled to "qualified
immunity."
Qualified immunity protects
government officials from damages when their
"conduct does not violate clearly cstablished
statutory or constitutional rights of which a
reasonable person would have known." Harlow v.
Fitzyerald, 457 U.S. 800, 818, 102 S.C!. 2727,27.'18
(1982). It is based on a principle of fair notice: a
government official should not be held liable f'Jr
damages unless a "reasonable official [under similar
circumst"u1ces] would understand that what he is
doing violates la constitutional] right." Saucier v.
Katz , 121 S.C!. at 2153 citi'(g Anderson v.
Creivhton, 483 U.S. 635, 107 S.Ct. 3034 (1987). In
Hope, the defendants argued that, since there had
heen no previously reported cases with facts
"materially similar" to this one, they could not
reasonably have known that handcnffing the inmate
to the hitching post under those conditions violated
his constihltional rights.
.fhe Court rejected this defense. Even absent
a case with facts "materially similar" to those in the
present case, the Comt held, prison officials were
on f"ir notice that thcir conduct violated the
Constitution. The use of the hitching post under
the conditions described by the plaintiff W'lS so
obvious a violation of the Eighth Amendment that
the Court's prior cases holding that the intliction of
pain without legitimate penological justification
violates the Constih,tion should have given the
defendants fair warning. Even if that was not the
case, the Court pointed out other cases in the
defendants' own jut1sdictjon which squarely held
that various fonns of corpota! punishment,
including "handcuffing inmates to the fence and to

cells for long periods of time.... and forcing
inmates to stand, sit or lie on crates, stumps, or
otherwise maintain awkward positions for
prolonged periods", run afoul of the F<:ighth
Amendment and "offend contemporary
concepts of decency, human dignity, and
precepts of civilization which we profess to
possess. "
For all of those reasons, the Court
concluded, the defendants in I-I.ope were not
entitled to qualified immunity.

Supreme Court : No Right Against Self
Inerimination in Sexual Abuse Treatment
Program
In McKune v. Li1c, -LJ.S.- , 122 S.Ct.
2017 (2002), the Supreme Court held that an
inmate may be compelled to admit prior
uncharged crirncs in a sexual abuse treatment
program, and that such cOlupulsion 1S not a
violation of the Fifth Amendment.
Mt. Lile, a state inmate, was otdered to
patticipate in a Kansas sexual abuse treatment
program. As part of that program he was
required to complete an "Admission of
Responsibility" form and a sexual histoty form
detailing all prior sexual activities, regardless of
whether the activities constituted uncharged
criminal offenses. Failure to complete the
f(lrnlS would mean he could not participate in
the program. Not participat1ng in the program
would result in the loss of various privileges,
including his transfer to a ma.ximum-security
unit.

The inmate sucd. He argued that being
f()rced to teveal prior sexual misdeeds under
thteat oflosing his prison privileges constituted
a violation of bis Fifth Amendment rigbt
<1g'linst self-incrimination.
The Court, in a 5-4 opinion, disagreed.
Tbe Court held tlIat the adverse consequences
faced by Lile for refusing to make the
admissions required for participation in the
sexual abuse treatlnen t progratTIwcre n()t so
severe as to amount to unconstitutional

Pro Se VoL 13 No. i

compulsion. The Court noted that the transfer to
a maximum security unit for failing to part1cipatc
was not intended to punish Lile for exercising his
Fifth Amendment rights but was instead incidental
to a legitimate penological purpose: freeing up
space for inmates who did want to participate in
the program.
The Court stated that what
constitutes unconstitutional compulsion 1S a
question of judgment: Courts must decide whether
the consequences of an inmate's choice to rcrnain
silent are closer to the physical torture against
which the Const1tut1on clearly protects or the de
!Jlit/irl/is harms against which it does not. In this
case, the Court found that the consequences ti,r
non-participation in the Se,,"Ual Abuse Treatment
ProgratTI v.rere not so severe as to constitute the
kind of compulsion forbidden by the Fifth
Amendment.

Second Circuit: No Right to Privacy in Prison
In Willis v. Artuz, 301 F.3d 65 (2002) the
Second Circuit Court of Appeals re-aftlnned what
many inmates probably already suspected: There is
no righ t to privacy in prison.
The facts were these: The police were
investigat1ngan unsolved murder. Detectives asked
prison officials to search an inmate's cell for
anything that might connect him to the crime.
Prison oHieials searched the cell but found nothing
to incriminate the inmate. The inmate sued the
corrections officials.
He claimed that, in
conducting the search, they had violated his Fourth
Amendment rights.
The Fourth Amendment to the Constitution
protects against "unreasonable" searches and
seizures. Under the Fourth Amendment the police
must obtain a warrant to conduct a search of an
area where a person has a "legitimate expectation of
privacy." In 1984, the Supreme Court held that
inmates have no legitinute expectation ofprivacy in
their prison cells and that prison oftlcials may
search them at any time, without a warrant. Hudson
v. Palmer, 468 U.S. 517. (1984)
Plaintiff in Willis, however, relied on a case

p~W~ ~

decided after Hudson - United States v. Cohen,
796 F.2d 20 (2d. Cir. 1986). [n Cohen, the
Second Circuit Court of Appcals held that
evidence of a crime produced in the warrantless search of a city jail cell was inadmissible in
court. The Cohen Court [()LInd that Hudson
was limited: It meant only that prison officials
could conduct a warrant-less search of :ltl
inmate's cell only if the scarch was in support
of the "legitimate needs of institutional
security." But, the Court held, if the search was
intended solely to produce evidence in support
of a criminal prosecution and had nothing to
do with institutional security, a warrant was not
necessary to conduct the scarch.
The question before the Second Circuit in
Willis, therd()re, was whether the Supreme
Court decision in Hudson or its own precedent
in Cohen applied. The Court decided that
Hudson applied. The Court distinguished
Cohen on the ground that the defendant in that
case was a pre-tria! detait/ce, not a convicted
pnsoner. "Unlike the pre-trial detaince in
Cohen," tJ,C Court wrote, "a convicted
prisoner's loss of privacy rights can be justified
on grounds other than institutional security."
Loss of privacy for a convicted prisoner, the
court held, "serves the legit1mate purpose of
retribution as well as the institutional needs of the
prison system. . .. Society is not prepared to
recogn1ze as legitimate any subjective
expectation of privacy that [a convict! might
have in his prison cell." (Emphasis supplied.)
Thus, under Willis, correction officers do
not need a warrant to conduct a cell search,
even if the search is unrelatcd to institutional
security.

State Court: Court CanllOt Set Gonditions of
C011finement for In Inmate
A state Suprcme Court justice docs not
have tllC authority to set conditions for thc
incarceration of an inmate with AIDS, a New
York State appellate court ruled.
The Appellate Division, First Department,

Pro SIC Vol. 13 No. t Pave 6

unanimously reversed an order issued by Justice
Marcy Kahn in December 2000, after she
sentenced a defendant to a 3-to-6-year prison term
for attempted criminal sale of a controlled
substance in the third degree. Peoplev. Pudey, 747
N.Y.S.2d 10 (I". Dep't 20(2).
Before his sentencing the defendant said be
had suffered from AIDS for many years. After
soliciting comments from the prosecution, defense,
DOCS, the New York City Department of Health
and New York City Health and Hospitals Corp.,
the judge issued a supplemental order directing
DOCS to take certain measures concerning the
defendant's medical care. Among other things, the
judge directed DOCS to assign the defendant to a
facility with a doctor and nurse on call 24 hours a
day as well as an HIV clinic on site, and to assign
him a single primary care physician who would have
access to an HIV specialis t. She also ordered the
department to advise her if the defendant was
transferred to another facility and to report
periodically on his health.
The five-judge p,mel unanimously vacated the
order, pointing out that after a court commits a
defendant to the custody of the DOCS, "prison
services, including health care are the responsibility
of DOCS .... It is also the responsibility of DOCS
to choose into which correctional facility an inmate
will be placed, or to provide for the transfer of an
inmate from one facility to another." The appeal
court's unsigned memorandum opinion found that
the judge's decision to "micromanage the terms of
defendant's incarceration, and concomitant health
care, was improper." Judge Kalm had praised the
corrections department's AIDS-related services in
her rulings, the appellate court noted. It also
pointed out that terminally ill inmates may apply for
release on medical parole under the Compassionate
Release Program.

State COlIrt: COlIrt UplJoJds 15 Year to Life
Sentence for Throwing Urine
Many would agree that throwing urine or
feces is offensive. But docs it merit fifteen
years to life in prison? That was the issue in
People v. Stokes, 736 NYS2d 781 (3d. Dep't
20(2).
In 1996, the Legislature passed Penal Law
§240.32, which makes it a class E felony for a
prison intnate to throw urine, feces, semen or
blood at a DOCS employee with the intent to
"harass, annoy, threaten or alarm" such person.
The maximum sentence for a class EI~Fclony is
an indeterminate term of 1 and 1/3 to 4 years
of incarceration.llowevcr, because virutally
anyone convicted of this offense will have at
least one prior felony conviction, most such
persons will be sentenced as either second or
"persistent" felony offenders.
The defendant in Stokes was a persistent
felony offender - he had been convicted of two
or morc previous felonies. Under the Penal
Law, when a sentencing court is "of the
opinion that the history and character" of a
persistent f'dony offender, as well as the
Unature and cirCUDlstances of his crintina}
conduct," indicate that: extended incarceration
and life-time supervision will best serve the
public interest, it may impose the same
sentence of imprisonment authorized for an A1 felony. Penal Law §70.IO(2). The tlJi"imtlm
sentence that may be imposed for the
conviction of a A-I felony is I5 years to life.
That was the sentence imposed in Stokes.
On appeal, the defenclant argued a
sentence of fifteen years to life for squirting
urine at an officer was harsh and excessive. He
argued that the crime, an E felony, was not the
moral equivalent of the type of the crimes to
which an A-1 felony sentence is lIsually applied,

Pro Se Vol. 13 No.1 Pare 7

such as murder, and that, in his case, it was an act
of desperation of an inmate confined to special
housing for several years.
The appeals court, 111 considering the
defendant's appeal, recognized "the gravity of
imposing an A~ 1 felony sentence" on conduct
which, prior to 1996, had been addressed solely
through the prison disciplinary system. The court
nevertheless upheld the sentence. The court found
that the defendant's numerous prior felony
convictions, his lengthy prison disciplinary record,
and the apparently planned nature of the current
offense - which tl,e lower court had described as
"reprehensible and degrading" -combincd with the
need to "condemn and deter" such conduct within
pnsons, led to the conclusion that, under the
circumstances of this case, a sentence of 15 years to
life was neither lursh nor excessive.
State Court: Defendant Must be Told When
Post-Release Supervision Z. Part ofSentence

A defendant who enters into a plea agreement
for a determinate sentence must be advised that a
mandatory period of post~release supervision will
follow completion of the sentence. Failure to so
advise the defendant may result in the revocation of
the plea. People v. Goss, 733 N.Y.S.2d 310 (3d
Dep't 2001)
/\ "dctcnninate" sentence is one in whIch the
defendant is ineligible for parole and must serve the
full term of the sentence. I Ie may cam good time,
but the good time available is limited to one day for
every seven days served. See, Correction Law
§803(b)(c); Penal Law §70.40(b). In 1998, the
Legislature passed "Jenna's Law" which required
that all persons convicted ofviolent felonies receive
determinate sentences. It also required that a
period of"post~release supervision" be served after
completion of any determinate term. See, Penal
Law §70.45(1).

Defendant in Goss pled guilty to a charge
of burgbuy in the second degree, for which he
received a determinate sentence oftwelve years.
Pursuant to Jenna's Law~ a five year period of
post~release supervision was included as part of
the sentence. The defendant, however, \vas not
told, at the time he accepted his plea, that the
period of post-release supervision would he
inclnded as part of the sentence. \'\!hcn he
found Otlt, he sought to withdraw the plea.
The court held that he should be allowed
to withdraw his plea. It is settled law that when
a court accepts a plea it mnst inform the
defendant of all of the "direct" consequences
of the plea. On the other hand, a court need
not inform the defendant of the merely
"collateral" consequences of the plea.
Examples of collateral consequences of a plea
agreement which, conrts have held, adefendant
as
need not be advised of, include such thin"s
u
the loss of the right to vote or travel abroad,
loss of civil service ernploytncnt, loss of a
driver's license and deportation. The question
before the court in Goss., therefore, W;lS
whether the period of post~release supervision
\vas a "direct" consc:quCrlCC of the plea
agreetnent, or rnerdy a "collateral"
consequence.
The court concluded that it was a direct
consequence of the plea. The court reasoned
that the requirement of post~releasesupervision
"has a ddlnite, immediate and largely automatic
efTect on [the] defendant's punishment."
Moreover, the court held, because violation of
the terms ofpost~release supervision can result
in re~incarceration, it is also a "significant [and]
punitive" aspect of the sentence.
Consequently, the court held, the defendant
was entitled to be advised that a period of post~
release supervision was part of the sentence
prior to euteriu):'; his plea. !d. at 314.

Pro Se VI"\' 13 No. t PJl.ge 8

Under COH, ifjou entmd a guilty plea ill exchange
jor a determinate term, but JIMt" IIOt informed {hat aperiod
ofpost-releme .fupenJis/on would be included as part ofthe
JelltBIII:e, .You mqy hat:e {he right to rwoke 'your plea
'!gtrement.
Court ofClaims: $tate Not Liable for Violation
o[Lell Search Procedure

DOCS Directive #4910(V)(C)(1) states that,
when a general population inmate is removed from
a cell prior to a celJ search, the inmate shall be
placed outside the immediate area to be searched
but allowed to observe the search unless, in the
opinion of a supervisory security staff member, the
inmate presents a danger to the safety and security
of the facility. Violations of this rule may cause the
reversal of any disciplinary proceeding that results
from the search. See. e.g., Matter of Gonzalez v.
Wronski, 669 N.Y.S.2d 421 (3d Dep't 1998)
In Matter of Holloway v. State, 728 N.Y.S.2d
567 (3d Dep't 2001), however, the court held that
violations of the rule cannot lead to a judgment of
money damages against the State. Corrections
officers, the court held, enjoy absolute immunity
from such suits.
Absolute immunity protects state employees
from damages even when their decision violates the
law or is irrational. A state official may be entitled
to absolute immunity if his job rccluires that he use
d/Jeret/oll in applying broad legal rules to individual
Cases. For example, a hearing officer conducting a
prison disciplinary hearing must usc discretion to
determine whether an inmate has violated a
particular disciplinary rule. The hearing officer is
therefore entitled to absolute immunity for that
decision, even if it is later detennined to be in error.
.lee, Arteaga v. State of of New York, 72 N.Y.2d
212. (1988). A grant of ahsolute immunity is based
on the public policy judgment that "the public
interest in having officials free to exercise their

discretion unhampered by the fear ofretaliatory
lawsuits outweighs the benefits to be had from
imposing liability" whenever they make a bad
decision. .lee, Rottkamp v. YounV, 249 N.Y.S.2d
330, ajfd 15 N.Y.2d 831 (1965). In addition to
prison hearing officers, the courts have granted
absolute immunity to the State Parole Board in
the detennination of whether to grant or deny
parole (Tarter v. State of New York, 68
N.Y.2d 511 (1986» and members of the
Temporary Release Committee in deciding
whether to grant good time (Santaniielo v. State
of New York, 474 N.Y.S.2d 995 (1984».
In Holloway, the court concluded that
correction oflicers should have absolute
itnmunity frorn lawsuit., arising from a decision
about whether an inmate is allowed to be
present during a cell search. The court held
that in conducting a cell search, the correction
officer ,-vas obliged to tnake a "discretionary
decision" about whether the inmate presents a
danger to security. Under those circumstances,
the court concluded, "it IS particularly
important that correction oflicers not be
dissuaded by the possibility of litigation from
making the diflicult decision which their duties
demand." Accordingly, while the correction
officers who frisked claimant's cell may have
abused their discretion by not allowing him to
observe the frisk, thereby providing the basis
for annulling the disciplinary detennination,
"[theYI were nevertheless exercIslllg a
discretionary authority for which the State has
absolute immunity" against money damagcs. Id.
at 568-569.

Pro Se Vol. 13 No.1 Page 9

Disciplinary
Harassment

Hearings:

Threats

and

Two recent cases considered DOCS' rules
al,>ainst threatening or harassing staff.
In Matter of lanes v. Department of
Correctional Services, 283 N.Y.S.2d 793 (3d Dep't
2(01) the petitioner was alleged to have mailed
several letters to judges containing "insolent and
"busive" l"nguage. Following a Tier II he"ring, he
was found guilty ofviolating prison disciplinary mle
107.11. Rule 107.11 states that "inmates shall not
h<lfass employees or "ny other persons verb"lIy or
in writing. This includes, but is not limited to,
using insolent, abusive, or obscene language... ."
In Jones, the petitioner argued that Rule 107.11 was
unconstitutionally vague and failed to provide him
with sufficient notice of the conduct it was
intended to prohibit. The court disagreed. "Tn our
view," held the court, the language of the regulation
"provides a person of ordinm)' intelligence with
suHlcient notice that sending threatening letters to
judges will constitute conduct proscribed by the
nIle."

mle: "Petitioner did not communicate with the
officer in question nor with anyone else at the
facility. In addition, he made no threats in his
letter and endeavored to render himself less
threatening hy offering to be manacled during
the proposed meeting."

Disciplinary Hearings: DNA Database
New York State Executive Law §995-c(3)
requires certain felony offenders to "provide a
sample appropriate for DNA testing to
determine identification characteristics specitic
to such person and to be included in a state
DNA identification index."
In Thompson v. Selsky, 734 N.y.sZd 348
(3d Dep't 2(01), an inmate refused to provide
a sample cmd was tI",reafter found guilty in a
Tier III hearing of refusing a director order.
The inmate commenced all Article 78
proceeding to review the hearing. In his
petition, he argued tl1at Executive La\v section
995-c(3) was invalid and that, therefore, he

2d 584 (3d Dep't 2(02) the petitioner was found
guilty of violating Rule 102.1 0 after he mailed 10

could not be disciplined for his t"ilure to
comply.
The
Appellate
Division,
Third
Departtnent, disagreed.
In affirming the

letters to various State and Federal agencies in
which he explained that he was in love with a
certain female correction officer. He requested that
a meeting be scheduled with the officer so that he

disciplinary sanction, the court noted that,
contrary to the inmate's assertion, he was not
disciplined based upon a violation of the
Execlltive Law, hut rather upon his refusal to

could express his feelings to her and convince her
that she harbored similar feelings for him. He

comply with a direct order. An inmate is not
free to disobey an order, regardless of whether

volunteered to be "handcuffed and shackled"
during the meeting to allay any concern that the

it appears to be unauthorized or if it infringes
upon constih.tional rights. .lee, Matter of Ali v.

officer would be placed in physical jeopardy.
Rule 102.10 provides: "Inmates shall not,

Senkowski, 704 N.Y.S.2d 682 (3d. Dep't. 2(00).
The proper procedure for contesting an order

under any circumstances, make any threat, spoken,
in writing or hy gesture."

that ,m inmate believes to be illegal is to obey
the order and file a grievance later. "Any

The court reversed the disciplinary hearing,
finding that petitioner's conduct did not violate the

holding to the contrarywould simply encourage

In Matter of Henriquez v. Goonl, 741 N.Y.S.

inmates to break nIles as a means of addressing

Pro Se Vol. B No.1 Papt: 10

their grievances and invite chaos," held the court.
[n Lunney v. Coord, 736 N. Y.s2d 718 (3d
Dep't 2(02) the petitioner, an inmate, did file a
grievance ,1 bout the DNA data base statute. In his
grievance, he did not challenge the legality of the
entire statute, but rather arglJed only that DOCS
lacked the authority to require a blood sample if an
inmate was willing to provide a different sample,
such as saliva, for testing. Again, the court
disagreed. "Although Executive Law section 995~
c(3) [does not1 specify that a blood sample must be
used, the statute requires 'a sample appropriate for
DNA testing' and it is undisputed that a blood
sample is appropriate for DNA testing. The statute
clearly does not give petitioner the option to dictate
the type of sample to be taken."
I'Ll' lI,ill publish ':Qliestions lind AIlJJJ'eTJ abut
DNA testil{g" in ajiJrthiYJJJJil{g ;rsue o[Pm Se.

Discipline : Res Judicata Prohibits Second
Misbehavior Report for Same Conduct
[n Matter of Burgess v. Goord, 729 N .Y.S.2d
203 (3d Dep't 2(01) petitioner, an inmate, was
found guilty of various disciplinary charges
following a fight in a prison yard. On the same day
his disciplinary hearing was concluded, prison
officials served him with a second misbehavior
report based upon the same incident but charging
him with different rule violations. The officials
argued that this was appropriate because, they
claimed, the second misbehavior report was based
on newly found evidence - a videotape of the
incident. A second hearing was held, and petitioner
was found guilty of the additional charges as well.
The Appellate Division reversed the second
hearing, holding that it was barred by the doctrine
of res jtldiwta. Res judicata bars the litig,ltion of
something that was already raised and adjudicated,
or which could have been raised and adjudicated, in
a prior proceeding. Prison officials argued that the

doctrine did not apply in tllis case because the
second misbehavior report charged different
rule violations and was based on new evidence.
T'he court, however, was unpersuaded that the
new evidence - the videotape - had been
unavailable at the time of the tirst hearing particularly since the second report was served
on the very day that the tirst hearing concluded.
Any additional rule violations visible in the
videotape could have been adjudicated in the
tirst proceeding. Consequently, the court
t()Und, Ir.rjtldiwta applied, and the hearing had
to be reversed.

Discipline: Inmate Who Doesn't Attend
Hearing May Call Wimesse.• 011 His Bebalf
Genetally, when an inrnate refuses to
attend a disciplinary hearing, he forfeits all of
the procedural rights he would otherwise be
entitled to at the hearing, including the right to

call witnesses on his behalf. See, e"g., Matter of
Kalwasinski v. Senkowski, 664 N.Y.S.2d 841 (3d
Dep't 1997)
In Dawes v. Selsky. 730 N.Y.S.2d 563 (3d
Dep't 2(01) the petitioner, an inmate, refused
to attend his disciplinary hearing but he
submitted a list of witnesses that he wanted
called, as well as the questions that he wanted
asked of the witnesses. The hearin\' officer
considered the re<juest but concluded that the
witnesses were not relevant. In court, the State
argued that the petitioner had forfeited his right
to call the witnesses by not attending the
hearing.
,0

The conrt disagreed.
Under the
circumstances of this case, the court held, the
petitioner had not forfeited his right to call
witnesses. Further, because the hearing offIcer
had not adequatcly assessed the witnesses'
relevance, the hearing would have to be

PI1:J Se Vol. 1.3 No. i Page 11

reversed.

Parole: Board Decision Contrary to the
Evidence is Arbitrary and Capricious
[n Del~ado v. Travis Index No. 01-02608
(Sup. Ct. , Oneida Co. 20(2) petitioner, a parole
violator, challenged the Parole Board's decision to
deny him re-release after he had served his time
assessment for a parole violation. The Supreme
Court, Oneida County, granted the petition,
holding that the Parole Board's action was arbitrary
and capricious and contrary to the evidence hefc)re
it.
Petitioner' parole was revoked after an incident
1t1

\.vhich he was arrested for a misdenleanor

involving allegations of domestic violence.
Petitioner denied the allegations and the charges
were later dropped. At his subsequent parole
revocation hearing, the Board withdrew the charges
related to the misdemeanor "with prejudice."
Petitioner then pled guilty to a single parole
violation of [tiling to report a police contact and
was sentenced to time served plus three months,
after which he would be considered for t<>rele;Lse.
Upon consideration for re-release, the Board
conducted an interview with the petitioner during
which it questioned him about the facts relating to
the misdemeanor arrest. Petitioner again denied
the allegations. The Board then issued a decision
holding him for an additional twelve months. In its
decision the Board stated that petitioner's replies to
their questions had led them to conclude that he
lacked insight into his criminal activity. It ordered
him to participate in the domestic violence/antiar,gresston program.
The conrt found this decision to be arbitrary
and capricious and contrary to the evidence. Itwas
obvious from the Board's decision that it had
concluded that petitioner was guilty of the
misdemeanor charges. The only elidellte before the

Board, however, indicated that he was not
guil ty: The charges themselves had been
withdrawn, as had the revocation charges
related to them. Petitioner and his witnesses
had all maintained his innocence. There was no
evidence in the record to support the Board's
decision. Consequently, the decision was
arbitrary <md capricious and had to be reversed.

A copy offhir umvported dedJio!/ should be ami/aNe ill
jOurfadlity Iml' librmy.

Y2K: THE LEGAL FALLOUT
'111e coming of the new millennium
brought with it, among other things, mmors of
a planned work stoppage and other
demonstnttions among New York State
inmates. The work stoppage, which was
apparently meant to protest the ever-tougher
release criterion of the Division of Parole,
became known as the "Y2K strike." DOCS'
response was tough: Hundreds of inmates
were transferred, removed from their programs
and disciplined based upon allegations, often
ftorn anonynlous., confidential soutces, that

they were Involved in some way in planning filr
the strike.
In the aftermath, Prisoners' Legal Services
reviewed over eighty Tier III hearings resulting
from charges associated with the Y2K strike.
PLS filed administrative appeals in many elses,
challenging the hearings on the grounds that
they lacked subst;l11tial evidence and that the
misbehavior reports were so vague as to fail to
provide adequate notice ofthe charges. DOCS'
reversed over thirty cases after PI,S intervened,
and modified the penalties in more than twenty
more. PLS also filed numerous Article 78
proceedings challenging the Y2K disciplinary
hearings. In many of these cases, DOCS
agreed to reverse the hearings once the papers
were flIed. See: Matter of Rosario v. Goon],
293 A.D.2d 922, 740 N.Y.S.2d 657 (3d Dep't.
20(2); Matter of Betancourt v. Ricks, 288

Pro Se Vol. 13 No.1 Page 12

A.D.2d 644, 732 N.Y.S.2d 599 (3d Dep't. 2001);
Matter of Harris & Gonzales v. Goord, (Sup. Ct.
Orleans, Co.) (Punch,]. 20(H); and Matter of Ryan
v. Goord, 289 AD.2d 787,735 N.Y.S.2d 431 (3d
Dep't.2001).
In two cases, Matter of Callens v. Goord, 286
AD.2d 811, 730 N.Y.S.2d 263 (3d Dep't. 2001) and
Matter of Irvinl?; v. Goord, 288 AD.2d 787, 733
N.Y.S2d 525 (3d Dep't. 2001), DOCS refused to
reverse the hearings and the cases were argued
before the Appellate Division. In both cases the
petitioners were found guilty of urging others to
participate in a work stoppage based on allegations
from anonymous contldential informants.
Although a prison disciplinaty determination may
be based on confidential information, it is well
settled that the information must be "suHiciently
detailcd for the llearing OHicer to make an
independent assessment of the infonnant's
reliability." In both Callens and Irving the court
reviewed the confidential infonnation ill camera and
concluded that the evidence from the anonymous
informants "was not suftlciently detailed or specific
as to the charge to enable the Hearing Oflicer to
independently assess their credibility." On this
basis, the court ordered both hearings reversed.
Other cases, both pm se and those brought by
PLS, were nc)t so successful. See: Moore v. (30ord,
279 AD.2d 682, 719 N.Y.S. 2d 309 (3d Dep't.
2001); Shannon v. Coord, 282 A.D.2d 909, 726
N.Y.S.2d LSI (3d Dep't. 2001); Harris v. Goord,
284 A.D.2d 841, 726 N.Y.S.2d 603 (3d Dep't.
2001); Bosshart v. Coord, 285 A.D.2d 781, 727
N.Y.S.2d 208 (3d Dep't. 2001); Mays v. Goord, 285
AD.2d 847, 727 N.Y.S.2d 357 (3d Dep't. 2001);
Golden v. Ricks, 288 A.D.2d 565,732 N.Y.S.2d 655
(:3d Dep't. 2001); Quinones v. Ricks, 288 AD.2d
568,732 N.Y.S.2d 275 (3d Dep't. 20(H); Gibson v.
Ricks, 288 AD.2d 569, 732 N.Y.S.2d 452 (3d Dep't.
2001); Innis v. Ricks, 289 A.D.2d 811, 734
N.Y.S.2d 512 (3d Dep't. 20ot); Encarnacion v.
Ricks, 289 AD.2d 625, 733 N.Y.S.2d 547 (3d Dep't.
20(H); Shepard v. Goord, 292 AD.2d 694, 741
N.Y.S.2d 128 (3d Dep't. 2002). In these cases the
court held that "the confidential information
provided substantial evidence to support the

detcnnination of petitioner's guilt and the
infonnation Iwasl sufficiently detailed and
supported by corroborating evidence to pennit
the Hearing Officer to make an independent
assessment of its reliability." JhrjJard, 741
N.Y.S.2d at 129. The court, in many of these
cases, also rejected prisoners' argutnents that
they were not provided with adequate notice of
the charges because the misbehavior reports
did not specify the times, dates and places that
the alleged misconduct occun-ed.
[n
Encarnacicm, for instance, the court found that
U[a]s a practical matter, this information could
not be reported without jeopardizing the safety
of the confidential infonnants." Id. at 548Many inmates wbo were not charged with
disciplinary infractions found themselves caught
up in the Y2K net in other ways. For instance,
roughly one-hundred inmates were transferred
out of Green Haven Correctional Facility.
Many of these inmates were "old timers,"
people who had been in prison since the 70's or
80's. Some were in the theology prognun,
80111C were instructors, others "were presidents
of various pdson organizations. Sarne had
earned masters degrees in prison, others had
started positive programs. Almost all had
exceptional prison records. These inmates did
not receive even the minimal due process that
was given to those who received misbehavior
reports. Instead, they were summarily removed
from their programs, reclassitled, and sent to
other prisons based, in many cases, upon
unreliable confidential information. When they
anlved at their new f:lCilities they were not
allowed to participate in various programs
because ofnotations in their files indicating that
they were involved in planning the Y2K strike.
They had no legal mc~UlS by which to challenge
th is information otller than to bring it to the
attention of the same administration that was
responsible for putting this information in their
file in the first place. PLS was successful in
having erroneous information removed in sorne
cases. However, in tllany other cases, the
damage was already done.

Pm

RECENT DEVELOPMENTS
RELIGIOUS FREEDOM

IN

A !)risoner's ril':ht to the free exercIse of
religion is guaranteed by the First Amendment of
the United States Constitution. In New York, it is
also guaranteed by Section 610 of the New York
Correction Law.
In 2000, Congress passed the Religious Land
Use and Institutionalized Persons Act, 42 U.s.c.
§2000cc-l(a) (RLUIPA), which provides even
greater protection to inmates' exercise (Jf religion.
Under this act, prison off1cials must meet a
heightened standard to justify tllles or conduct that
5lIbstantially burdens the free exercise of religion.
Generally, under the First Amendment, a
prison official need only show dut a restriction on
religious freedom is "reasonably related to
legitimate penological interests" in order for the
restriction to survive constiultional sCiutiny. See,
Turnerv. Sat1ey, 482 U.S. 78; 107 S.Ct. 2254 (1987).
Under the RLUIPA, by contrast, a rule or
regulation which "impose[s] a substantial burden on
the religious exercise of a person residing in or
confined to an institution" will only be valid if "the
government demonstrates that imposition of the
burden....(1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive
means of hlrthering that compelling governmental
interest."
In Mattia v. Broaddus, 200 F.Supp.2d 280
(SD.N.Y. 2002), a federal district court recognized
that prisoners can bring their religious claims under
both the First Amendment and RLUIPA, and that
DOCS's burden of proof is much greater under
RLUIPA. In Mama, the plaintiff, an inmate,
challenged DOCS's rule prohibiting Five Percenters
from org,mizing and from receiving a publication
about their beliefs titled "The Five Percenter," In
doing so, the COllrt admitted into evidence the
testimony of Plaintiffs expert that the Five
Percentcrs arc a legititnate religi()tl "uH:I not a prison
gang, and that there is little justification for b,mning
them or their literature. At the same time, it
refused to admit into evidence DOCS' expert
testimony because itwas unreliable ;md biased. The
.

<.)

&~

Vol. 13 No.1 Pat!? 13

court then analyzed the plaintiffs claim under
dIe lower First Amendment standards set out
in Turner, supra, and found issues of fact
preventing summary judgment even for this
lower standard. When the Court analyzed the
RLLlIPA claim, it found that DOCS policies
"substantially burdened" Mr. Mama's free
exercise rights, and that issues of fact existed as
to whether DOCS had a "compelling interest"
in banning the organization and literature of the
Five Percenters, and whether an outright ban
was the least restrictive alternative.
Another recent case suggests that the state
courts, too, will give carefi.I1 attention to claims
from inmates that their rirht to free exercise of
religion is being violated in prison.
In Matter of Cmcel v. Goord, 278 A.D.2d
321, 717 N.Y.s.2d 610 (2d Dep't 2(00), an
inmate alleged that the Sunni Muslim Im;ms
employed by DOCS were 'mtagonistic to
members of the minority Shi'a sect. He
requested that DOCS pennit Shi'a adherents to
hold separate services, free from Sunni
int1uences, and pennit Shi'a clergy and/or
registered volunteers to enter the prison to lead
Shi'a services and religious discussion groups.
DOCS refused, on the gronnd that it was
"advised by the Department's Iman that all
Muslim relii,>1ous groups Etll under Islam, with
the exception of [followers of the Nation of
Islam]. All practice the same t~tith and should
not be separated." The Supreme Court found
this exphmation to be insufficient and the
Appellate Division agreed. In its decision, the
Appellate Division quoted from a case decided
under the Religious Freedom Restoration Act,
a precursor to RLUIPA. That case had held
that while a prison was not required to employ
clergy from every sect or creed, it must justify
by a compelling state interest a failure to
provide or allow reasonably sufficient
alternative methods of worship. The Court
found that it was "readily apparent that the
petitioner's spiritual needs have not been met,"
It ordered DOCS to conduct administrative
proceedings with Shi'a participation in order to
.0

Pm Se Vol. 13 No, t P.age 14

determine how best to accommodate petitioners'
needs.
Following the court decision discussed above,

Mr. Cancel brougbt a First Amendment claim in
federal COlIrt for money damages. Cancel v.
Mazzuca, 205 F.supp.2d 128 (S.D.N.Y. 2(02). 'n,e
plaintiff sued 31 prison officials for violating his
Pirst Amendment rights and his rights under
Section 610 of the Correction Law. The federal
court, however, dismissed the claims based on state
law because New York law prohibits suing

3. If tbe relief you seek is monetary damages,
you cannot bring state claitns against state

employees. Vou also will conf,.ont the problem
of qualified immunity, which requires that a
Constitutional right must be clearly established
before a court will hold state employees liable
for damages.

4. In prison litigation, less is more. Do not sue
31 people: cboose the defendants who have
actually violated your righ ts.

govcrnnlcnt employees for tnoney darnages other

than in the Court of Claims. It also dismissed most
of the defendants except the two Imams, on the
ground of qualified immunity. The court found
that the right of Shi'a Muslims to sepat"te services
had not been clearly established in prior decisions,
and denied the Motions of the two Imams to
dismiss finding tbat the facts, if proven, would
amount to a clearly established free exercise claim.
In a later decision only reported on Westlaw,
Cancel v. Mazzuca, 2002 W.L. 1891395 (S.D.N.Y.
2(02), the Court denied the plaintiffs motion to
amend bis complaint to add a number of other
defendatlts, but granted the plaintiff's motion to
amend bis complaint to add a claim under
RLUIPA.

Pr:lCtice Hints
1. If you have a claim that you have been denied
your right to exercise your religion, or that DOCS
has subst,lntially burdened your right to exercise
your religion, include both state and federal claims,
including Correction Law §610, the First
Amendment and RLUIPA.

2. If the relief you seek is a change in DOCS'
policies or practice, bring your case as an Article 78
in state court, or in Federal Court under Section
1983.

5. Before you file any lawsuit, for injunctive
relief or money damages, you must first exhaust
your administrative temedies by filing a
grievance, and appealing an adverse decision to

the CORC.

Pro Sc Vol. 13 No.1 Pag\,; 15

PRISONERS' LEGAL SERVICES
JOINS LA WSUIT CHARGING
UNCONSTITUTIONAL
TREATMENT OF MENTALLY ILL
INPRlSON
Prisoners' Legal Services has joined the
Prisoners' Rights Project of the Legal Aid Society
and Disability Advocates, Inc., lawyers for the
disabled, in filing a major lawsuit on behalf of
prisoners with mental illness in New York. The
lawsuit alleges that such prisoners are denied
adequate mental health care, harshly punished for
the symptoms of their mental illnesses and
frequently confined under conditions amounting to
cnId and unusual punishment. As a result, the suit
charges, the conditions of mentally ill prisoners
routinely deteriorates in prison, sometimes to the
point of self-mutilation or suicide.
The lawsuit, Disability Arlwcales, Inc. Ii. New
Yod, State Ojfice ofMental Health, was filed in federal
court in New York City in May of this year. It
charges New York State's Office of Mental Health
(OMH) and Department of Correctional Services
(DOCS) with violations of the Eighth Amendment
to the United States Constitution and of the
Americans with Disabilities Act and the
Rehabilitation Act, two federal civil rights statutes.
It asserts that prison mental health care programs
and resources to address the serious mental health
needs of prisoners are deficient across the board.
One of the issues the lawsuit addresses is the bilure
by DOCS and OMH to care for or intervene to
remove mentally ill prisoners housed in Special
Housing Units, even when the isolation associated
witb SHU is clearly exacerbating their illness or
causing serious mental deterioration.
Prisoners in SHU arc allowed out of their tiny
cells only one hour per day during which they are
locked alone in a small cage outside. "nley eat alone
in their cells, cannot see other prisoners and are not
permitted to work at prison jobs, attend progranls
or engage in other rehabilitative activities. The
noise level inside these housing units is often
deafening. \Vhen these condit;ons are applied to

mentally ill inmates, thc results arc "simply
inhumane," ·iU"gues Sarah Kerr of the Legal Aid
Society, a co-counsel for the plaintiffS. "The
stringent conditions of isolated
confinement....cause mentally ill prisoners to
psychiatrically deteriorate and contribute to a
significant number of prisoner suicides."
This issue is of particular concern because,
in recent years, nUtnerOllS inrnates suffering
from ll1ental illness have cotTIl"nitted suicide
while in restricted confinement.
Family
members and other advocates have argued that
those tragedies could have been avoided if
DOCS had been more responsive to the
inmates' mental health needs.
The prison population of New York has
increased three-f,)ld over the last twenty years.
The incidence and severity of serious mental
illness among the prison population has also
increased. But mental health staff and other
resources have not increased in response to
growth and magnitude of the mental health
For
problems of the prison population.
insLUlce, the number of inpatient beds at the
Central New York Psychiatric Center
(CNYPC), which provides all inpatient care to
prisoners in DOCS custody, is only 187 for a
prison populat;on of almost 70,000, and has
not changed in over twenty years. "The lack of
inpatient beds ha..<; grave consequcnccs~'; states
Nina Loewenstein ofDisability Advocates, Inc.
"S0t11C pt-isoners in psychiatric crisis arc
secluded in observation cells for 24 hours each
day for days or weeks at a time, with only mats
on the floor ;md limited clothing, awaiting
placement at CNYPC. ()thers iU"e discharged
back into the prison population despite a
continuing need for inpatient Gm,."
The failure to provide for the mental
health needs ofprisoners has serious, long-term
societal consequences. "Prisoners \vith tnental
illness who have been negleeted and
mismanaged while incarcerated ,U"e likely to be
more severely mentally ill upon their release
from prison than they would be otherwise; they

Pro Se Vol. 13 No. t

PgL~

16

are more likely to experience homelessness, less
likely to tmst ment>,l health care providers and less
likely to eng,tge in necessary mental health care
upon their release," said Betsy Sterling ofPrisoners'
Legal Services. "Disregard for the suffering of
mentally ill prisoners hanns the prisoner and poses
both a burden and danger to the public at lar!,,'e."

PRO SE PRACTICE
NEW FILING RULES FOR
INMATES IN STATE COURT
Indigent Inmates II/ust Now Pay a "Redueed"
Filing Fee

In 1999, New York enacted a new law, CPLR
§1101(t), requiring poor inmates to pay a "reduced
tiling fee" to commence most lawsuits in state
court. (The law exempts lawsuits raising jail time
issues.) Prior to the enactment of CPLR §1101(t),
an inmate unable to pay tl1e tiling fee (currently
about $245) could apply for "poor person" status
and have the entire fee waived. Under the new law,
however, all inmate unable to pay the fee must tile
what is called an "application for a reduced tiling
fee" and, if this application is granted, must pay
between $15 and $50 in order to commence his
lawsuit.
CPLR §1101(t) requires an inmate, at the time
he files a lawsuit, to also file an authorization
allowing the court to obtain a statement of his
inmate account. If the court, after examining the
inmate's account, determines that he is unable to
pay the fttll filing fee, it may require payment of the
"reduced" fee. While the payment can be deferred
it cannot be waived. Inmates who have no money
at all cannot be barred from proceeding but the
State is allowed to collect the fee from the inmate's
account at a later t.itne.
The n(w law raised several questions. First,
and most basic;tlly, was it constitutional? Some

prisoners argued that it was unconstitutional,
because it treats poor inmates differently than
other poor persons, thereby violating the Equal
Protection Clause of the Constitution. At least
one Supreme Court justice agreed with them.
In Gomez v. Evani?;elista, 714 N.Y.S.2d 636
(N.Y. Co. 2000), Judge Emily Goodman held
that the statute violated the Equal Protection
Clause of both the state and federal and
constitutions.
Unfortunately, Judge
Goodman's decision was later reversed by the
Appellate Division. That Court held that the
statute was constitutional because it is
pennissiblc to trcat similarly situated persons
differently if thc disparate treatment is
rationally related to a legitimate government
interest. The Court held that the disparate
treatment of poor inmates resulting from
CPLR §1101 (I) was rationally related to the
state's legitimate interest of deterring frivolous
lawsuits by prisoners. Gomez v. Evangelist;\'
736 N.Y.S.2d 365 (1st Dep't 2002) The court
noted that a similar provision of the federal
Prison Litigation Reform Act (PLRA), has been
found constitutional by some federal courts.
Another important question involved the
new law's affect on the statute of limitations.
Mos t inmate lawsuits are Article 78
proceeding" which have a short, t()ur month
statute of limitations. Consequently, inmates
filing Article 78 petitions must often nlsh to get
their papers tiled bef()re the four month statute
of limitations expires. But what constitutes
filing? 1s it when the appropriate papers are
received by the court? Or is it when the court
has obtained the inmate's account statement
and received payment of the reduced fees - a
process that could conceivably take several
weeks~

This question was resolved in Gnmt v.
Senkowski, 95 N.Y.2d 60S, 721 N.Y.S.2d 597
(2001). In Grant, the Court held that a pro se
inmate who proceeds under CPLR §1101 (I) has
commenced his proceeding at the moment the
Court Clerk's oftlce receives his papers and is
assigned an index number. As long as the

Pro Se VoL 13 No.1 Paf'e 17

inmate insures that the proper papers reach the
court before the statute of limitations expires,
delays by the court in obtaining the inmate's
account status or signing an order to show cause
will not prevent an inmate from filing his action
before the statute of limitations expires.
In OUf experience, however, a l1ulnbcr of

Supreme Court clerks are unaware of the holding
in Grant. For example, some court clerks still
withhold the index number until after the judge has
actually signed an order to show cause. Others will
not assign an index number if there are even minor
ornissions ffOrTI t11C inmate)s papers - a ll1issing
Request for Judicial Intervention (RJI) form, for
example. Still others try to have an index number
assigned as soon as possible after receipt of the
papers. However, because the assignment of the
index number is usually handled by the COUlIty
Clerk, not the Court Clerk, the index number might
not be obtained until a day or more after the court
actually receives the papers.
Thus there is 'mother question: Is a prisoner's
Article 78 proceeding commenced on time if his
papers are received by the court before the statute
of limitations but an index number is not assigned
until after? The Appellate Division, Third
Department recently answered this question in
Matter of Johnson v. Goord, 733 N.Y.S.2d 766 (3d
Dep't 20lH). Relying on the decision in Grant, the
Third Department held that the proceeding in
Johnson was commenced when the inmate's papers
were actually received by the clerk, not when the
index number was later assigned.
Since Grant, duere has been one related
development in this area of the law. 111e legislature
recently amended CPLR §304 and a related
provision, CPLR §203(e), to provide that a special
proceeding (of which an Article 78 proceeding is
one) is commenced by a the filing of a petitlon.
Bef,)re these amendments, a special proceedingwas
comn1enced by filing an order to show cause ami a
petition. At first blush, it may appear that a
prisoner need file OIl!Y a petition to commence a
proceeding. In fact, however, CPLR §304 has
always made clear that the proceeding will not be

commenced unless the papers being filed are
accompanied by the required fee or, if the
petitioner is unable to aff'mi the fee, the
application for the reduced fee. If the petition
is accompanied by neither the fee nor the
CPLR §1101(f) application, the papers will
probably be deemed insufficient to commence
a proceeding. Jn addition, pm se prisoners will
still need to obtain an Order to Show Cause
from the court to provide for alternatlve service
(service by mail instead of in person) upon the
respondents and the attorney general, and to
set a "return date" (the date the petition will be
placed on the court's calendar for
consideration).

EXHAUSTION OF ADMINISTRATIVE
REMEDIES (Continued from page 1)
The Prison Litigation Reform Act of1995
(PLRA)
Prior to 1995, federal courts had the
discretion to require tnnlates to exhaust
administrative remedies before proceeding with
their federal claims, but were not obligated to
do so. If they chose to require exhaustion, they
could do so only if the relevant administrative
remedy was "plain, speedy and effective." 42
U.s.c. 1997e(a) (1994 cd.)
In 1995, Congress, concerned about the
number ofprisoner lawsuits and convinced that
many of them were frivolous, passed the
PLRA, which sought to limit tJle number of
inmate lawsuits in the federal courts. One of
the ways it did this was to make the exhaustion
requirement m'mdatory.
The PLRA states,"[n]o action shall be
brought [in federal court] with respect to prison
conditions under [any] Federal law by a
prisoner confined in any jail, prison or other
correctional facility until such administrative
remedies as arc available arc exhausted." 42
U.S.c. §1997e(a).

Pro Se Vol. 13 No.1 Page 18

The PLRA also eliminates the requirement
that the administrative remedies must be "plain,
speedy and etleetive." Under the PLRA an
administrative remedy need only he "available" to
require exhaustion.
Since 1995, it has been clear that many inmate
lawsuits would be subject to an exhaustion
requirement. Only in the last two years, however,
in the wake of the Booth and Porter decisions,
have the ramifications of such a sweeping
requirement become dear.

administrative remedies before going to court,
even if the administrative remedy could not
provide the same relief that the inmate was
seeking in court.
Under Booth, an inmate must exhaust his
administrative remedies even if the
administrative grievance process cannot glve
him the relief he seeks, as long as the grievance
process allows some action to be taken relevant
to the grievance.

Porter v. NlJssle
Booth v. ChlJrner

In Booth, the Supreme Court addressed the
PLRA's requirement that an administrative remedy
be "available" before it could be exhausted.
Timothy Booth was a Pennsylvania prisoner
who brought a §1983 action alleging the use of
excessive force by correction officers. Booth filed
an administrative grievance about the assault but,
after it was denied, did not file an appeal. He
subsequently filed a lawsuit in federal court seeking
damages from the corrections officers. His case
was dismissed by the federal district court because
he failed to exhaust his administrative remedies. He
appealed, and his case eventually reached the
Supreme Court.
In the Supreme Court, Booth argued that
because the a.dlTIinistrativc grievance progranl in
Pennsylvaniawas not authorized to give him money
damages - and because moncy was the only thing
he was seekine: in his federal lawsuit - there wa..') no
"
administrative remedy "available" for what he
wanted.
Therefore, he argued, the PLRA's
exhaustion requirement could not apply.
The Court disagreed. The Court held that as
long as the grievance committee had the authority
to take JOJ?Je responsive action, even if it could not
provide Booth with the money damages he was
seeking, it was still an "available" remedy, and
exhaustion was required. 121 S. Ct. at 1822. The
Court reasoned that Congress, in passing the
PI.RA, had intended that inmates exhaust their

In Porter, the Court addressed the PLRA's
use of the phrase "prison conditions".
11,e Porter GL'" involved a Connecticut
inmate who alleged that he was beaten hy
corrections officers. He sued the officers in
federal court without ever having filed an
administrative grievance. He argued that he
should not have to ftle a grievance because the
beating was a single, isolated incident and
therefore did not involve "prison conditions"
as that term is used in the PLRA.
The Second Circuit Court of Appeals mled
in Porter's favor. That Court concluded that
"particularized acts», such as a single instance
of guard bmtality, did not constitute "prison
conditions" under the PLRA and, therefore,
were not subjectto the exhaustion requirement.
Nussle v. Willette, 224 F.3d 95 (2d Cir. 2(00).
The Supreme Court reversed. '['he Court
held that allY lawsuit about prison life, whether
about a single solitary incident (sllch as an
incident of guard bmtality), or whether about
"general circumstances" (such as
overcrowding), concerns "prison conditions
and is therefore subject to the exhaustion
requirement.
H

After Porter, there will be no exception to
the exhaustion requirement hased on the
argument that the subject of the lawsuit docs
not involve "prison conditions.)) Exhaustion of

Pm Se Vol. 13 No.1 Pan; 19

administrative remedies, it is now dear, is required
to bring any federal lawsuit that touches on any
aspect of prison life.

While Booth and Porter settled major
questions about exhaustion, nunlcrous other
questions remain.

1.

\Vhat exactly is an "available" administrative
rerncdy? Arc there sornc circumstances when
an administrative remedy is unavailable?

2.

\V11at are the available administrative remedies
in New York?

.3.

\Vhat docs it mean to "exhaust" an
administrative remedy? Must you adhere
strictly to the procedures set t,)fth in the
grievance process, or is it sufficient that
corrections administrators have responded to
your complaint (or failed to respond)?

4.

Finally, what will happen to your federal
complaint if you have not exhausted
administrative remedies?

After Booth and Porter, these questions arc
likely to arise in every case brought by a prisoner in
federal court. The rest of this article takes a closer
look at these questions.

WlIat i.q an
remed.v"?
1.

"available administrative

Most courts agree that the phrase "available
adrninistrative renlcdy" means the formal
ridlJli!listmtire ,grimltlce pmcedlmJ provided by the
correctional systenl. Courts have reasoned that
permitting inmates to bypass the codified grievance
procedure of a prison system by, for example,
sending letters directly to the facility's
superintendent, would Lllldcrmine the effectiveness

that the prison grievance program is intended
to achieve. Beatty v. Goord, 2000 \\fL 288.358
(S.D.N.Y. 2000).
While there may he
exccptions to this rule (see below), in gencral,
inmates who wish to file a federal lawsuit about
a problem they arc experiencing will be well
advised to first exhaust the jim7/a! grievance
process provided by DOCS for the particular
problem about which they want to sue.

2. lf1Iat grievanee proces.qes
"available" to inmates in New York?

,Ire

DOCS provides several formal [,>rievance
processcs. Which process you will need to
exhaust before bringing a federal lawsuit will
depend upon the nature of the problem about
which you are complaining.
Most problems that arise in New York
State prisons can be addressed through the
Itunate Crievance ProgratTI CIGI)H). Jee Title
7 New York Code, Rules, Regulations
(hereinafter
7 NYCRR) §701.7; DOCS
Directive #4040. This process involves three
steps. First, you tnust subnlit a grievance
complaint: to the c1crk of tlle Inmate Griev;mce
Resolution Committee ("IGRC"), within
f(JUrteen days of the incident you are
complaining about. 7 NYCRR §701.7(a)(1);
D()CS Directive #4040(V)(A)(I). Second, if
you arc dissatistied with the [GRC decision,
you must appcal to your hcility superintendent:.
It!. §701.7(b). Third, if you are still dissatisfIed,
you must appeal to the Central Office Review
Committee in Albany (herenafter CORe). ld.
§701.7(b)(5). The grievance process is thcn
complete and you may bring a complaint in the
appropnate court.
Other problems, however, are IIO!l-gricmb!e
under DOCS regulations, that is, they Gmnot
be addressed via the Inmate Grievance
Program. These typically include the decisions
of any program or procedure which has its
own, separate, written appeal mechanism. For
example, DOCS provides a separatc

Pm Se Vol. 13 No.1 hyW 20

administrative appeal process to appcal the results
of disciplinary hearings, (7 NYCRR Chapter 5), the
termination or suspension of visitation rights, (7
NYCRR §200.5), thc denial of temporary release (7
NYCRR §1900.6); and the denial ofa publication (7
NYCRR §712.3). Where these separate appeal
processes are availahle, it is the separate process,
not the Inmate Grievance Program, that must be
exhausted.
Finally, DOCS provides an (lltet7l(JtiL~ grievance
process for complaints about st~iff barasJ'ment,
ineluding brutality. 7 NYCRR §701.11. Underthese
regulations, any inmate who feels that he or she has
been the victim of harassment or bmtality from
staff "should first report such occurrence to the
immediate supervisor" ofthe employee. 7 NYCRR
§701.11 (b)(I). The complaint must then be given
a gnevance number and referred to the
Superintendent who must determine ifit represents
a bona-fide harassment complaint. 7 NYCRR
§701.11 (b) (3). If so, tbe superintendent must
initiate an investigation. 7 NYCRR §701.11 (b) (4).
In either event, he is to respond to the inmate with
12 days. 7 NYCRR §701.11(b)(5). If he fails to
respond, or if the inmate is dissatisfied with his
response, an appeal may be suhmitted to CORC by
tiling a notice of appeal with the grievance e1erk
within four working days of receipt of the
Superintendent's reply. 7 NYCRR §701. 11 (b) (6) &

(7).
3. Are there any exceptions to tile rule that only
a "fomlal" grievance counts, for exhaustion
purposes?

Perhaps. In one recent case, the Second
Circuit Court of Appeals noted that DOCS'
grievance regulations specilically state that they are
intended only to supplement, not replace, informal
grievances. Marvin v. Goonl, 255 F.3d 40 (2d. Cir.
2(01), dtit{g, 7 NYCRR §701.1 In Marvin, the
inmate succeeded in overulrning a ban on his
correspondence with his attorney by infOrmally
mmplainil{g about it to various correctional offIcials.
The Court held that since the inmate's informal

complaint had flfcceeded in getting him the relief
he sought - and since DOCS' regulations
specitically recognize the validity of informal
grievances - the inmate in that case had
exhausted his administrative remedies, even
though he never filed a grievance.
Several lower courts have applied this
reasoning to cases involving allegations ofguard
bnttality. For example, in Perez v. Blot, 195
F.Supp.2d 539 (SD.N.V. 2(02) a federal district
relied on Marvin in holding that an inmate's
assertion that he had made complaints ofguard
bnttality to a variety ofcorrections officials, and
that his complaints had succeeded in obtaining
an investigation hy the Inspector General's
office, which had found the oftlcer culpable,
would, if accurate, establish that the inmate had
exhaus ted his administrative remedies, even
though he never filed a formal grievance. .lee
also, Heath v. Saddlemire, 2002 WL 31243304
(N.D.NY 2002). (Plaintiff's letters to the
Superintendent and the Inspector Gener.u
satisfied exhaustion requirement.)
In addition, a number of district courts
have noticed that DOCS' alternative grievance
process for complaints of staff harassment or
bnttality is, itself: highly infc)tlnal- requiring, as
it does, little more than that the inmate make
his or her concern known to an appropriate
supervisory of1lcer in order to obt<lin an
investigation. 7 NYCRR §701.l1. Some of
these courts have relied on this repulation to
conclude that inmates complaining "about staff
misconduct do not have to tIle a form,il
grievance under 7 NYCRR §701.7 in order to
exhaus t administrative remedies, so long as they
have taken steps consistent with the process
described in §70l.11. For example, in Perez,
.rupm, the court held that an inmate who alleged
that he bad complained to "various"
corrections officials about being beaten by
corrections ofEcers, had probably exhausted
the administrative remedy provided by 7
NYCRR §701.11, even though he had never
filed a formal grievance. Similarly, in Morris v.
Eversley, 205 F.Supp.2d 234 (S.D.N.Y. 2(02)

Pro Sc Vol. 13 No.1 Page 21

the court held that an inmate who had complained
ahout an incident of staff brutality to a corrections
captain had exhausted her administrative remedies
under §701.11, although she, too, had never filed a
formal grievance. And, likewise, in Gadson v.
Goord, 2002 WL 982393 (N.D.N.Y. 2002) the
court held that a prisoner's letter to the
Superintendent about alleged assault hy corrections
officers satistled the exhaustion requirement under
§701.11.
On the other hand, many courts have been
unwilling to recob'1lize broad exceptions to tbe rule
that only a '/olmaf grievance .. typically, one tlled
pursuant to 7 NYCRR §701.7.. will satisfy the
exhaustion requirement. See, e.g., Hemphill v. State
of New York, 198 F.Supp.2d 546 (S.D.N.Y. 2002)
0etter sent to prison superintendent ahout an
incident of alleged excessive use of force could not
be deemed a "grievance" under the PLRA
notwithstanding the availability of the alternative
grievance process); Mills v. Garvin, 20()1 WL
286784 (S.DN.Y. 2001) ("letter writing is not tbe
equivalent of an exhaustion of administrative
remedies under the PLRA"); Grey v. Sparhawk,
2000 WI. 815916 (S.D.N.Y., 2000) (a complaint to
the Inspector General did not excuse failure to file
a grievance); LaUreiUlO v. Pataki, 2000 \XfL 1458807
(S.D.N.Y. 2000) (plaintiffs letters to various
employees did not relieve him of satisfying coditled
grievance procedure); Adams v. Galleta, 1999 \VL
959368 (S.D. N.Y. 1999) (inmate's letter to warden
was an insuftlcient substitute to formal b'Ticvancc
process); Byas v. New York, 2002 \XfL 1586963
(S.D.N.Y. 2002) (inmate's letter to the
Superintendent was not a griev'Ulce under the
informal process, because the Superintendent was
not the "immediate supervisor" of the employee in
'lues tion).
The most that can be said at present about a
possible exception for staff misconduct complaints
based 011 7 NYCRR §701.11 is that the law is still
unsettled. Inmates who wish to sue in federal court
over an incident of staff misconduct would be well
advised to exhaust the formal administrative

grievance process under & 7 NYCRR §701.7,
even if they can plausibly argue that they have
already satisfied the requirements of the
informal process under 7 NYCRR §701.11.

WHAT'S THIS? Some of the case citations
that you $CC in titis article refer to Wcstlaw, the
computerized reporter service that is available over
the internet. A Westlaw cite starts with the year of the
case (e.g., 2000) then «''''1..,'' (for Westlaw) and then
the number of the case on Westlaw's service.
Pro Sc tries to refer only to cases that are
available in the Federal Reporter series, because we
know that irunatcs cannot easily access such services
as \VestIaw. In some cases, however, developlncnts
that we think arc important to inmates ha.ve not been
published in the federal reporter, and a.re only available
on~line. In those few cases we may choose to reft,r to
the cases using the Wcstlaw cite, so that you are at

least aware of their existence.

4. W1Jat does it meall to "exhaust"
adnlinistrative remedies?
«Exhaustit1g~'

administrative rcrnedies
means appealing tbem to the highest level of
the grievance system. To exhaust an
administrative grievance you must appeal it to
CORe. To exhaust an appeal of a disciplinary
hearing or <Ul administrative segregation hearing
you must appeal it to the Commissioner. The
federal coutts in New York will, and do, dismiss
prisoner's lawsuits where the prisoner has failed
to "exhaust" his grievance by appealing it to the
highest level possible, even ifhe has otherwise
t1led it correctly.

Exhaustion applies to any decision from
the grievance process. For ex<Unple, a decision
stacing that it is now too late to File a griev;Ulce,
because more than fourteen days have passed
since the incident about which you are
complaining occurred, must be appealed to the
CORe. Similarly, the failure of the griev<Ulce

Pro $1:'" Vol. 13 No.1 Page 22

committee to respond to a grievance, should be
treated as a denial, 'Uld appealed to CORe.

ot'!!rruled on otherpmmds, Neal v. Goord 267 F.3d
116 (2d. Cir. 2001).

Exhaustion also applies to each issue you may
wish to challenge. For example, if you want to sue
over a disciplinary hearing because your witnesses
weren't called and because there was insufficient
evidence to support the charge, you must be sure
to raise both of these issues in the administtative
process.

In your grievance you should state why
you are flling the grievance late. For instance,
if you were the victim of excessive force and
you did not flle a timely grievance concerning
the matter, reasons for your failure to do so
might include the following:

This process can be complicated in some
situations. In Giano v. Goord, 2S0 F.3d 146 (2d.
Cir. 2(01), a prisoner wanted to challenge his
disciplinary conviction based on a urinalysis
proceeding but he also wanted to challenge DOCS'
procedures for handling urine samples in general.
The court held that he must exhaust his complaints
about his disciplinary hearing through the
disciplinary appeal process (a "Selsky" appeal) and
exhaust his broader complaints about DOCS'
policies through the Inmate Grievance Program.

•

you contacted the IG reg<lrding your
complaint of excessive force and believed
that was suft1cient.

•

until tl1e Supreme Court decided Booth v.
Churner, you didn't realize that damage
claims had to be exhausted because it
didn't seem like tl1e grievance process was
"available" for that purposc.

•

until the Supreme Court decided Porter v.
Nussle, the law in the Second Circuit was
that use of force claims, retaliation claims,
and other complaints of "particularized"
actions against an individual prisoner did
no! have to be exhausted.

•

you attempted to resolve the matter
"int(Jl-mally" with a letter to the
Superintendent or other persons, pursuant
to the provisions of7 NYCRR §701.11, et_

S. What if the time limit for filing a grievance
bas alreadypassed?

If the t()\lrteen days t()r filing a formal
grievance has passed, you should still t()lIow
through with the f,'I1evance procedure. Seven
NYCRR §70 1.7(a) (1) and DOCS Directive
#4040(V) (A) (1) allow for exceptions to the
fourteen day time limit based on mitig»ting
circunlstances.

The mitig,ltingcircumst'Ulces acknowledged by
DOCS include "e.g., attempts to resolve int()tnlally
by the inmate, referrals hack to the Inmate
Grievance Prograrn fronl the courts, etc.;' 7
NYCRR §701.7(a)(1). Despite this language, at least
one court has attempted to refer a casc back to the
IGP only to be told the grievance was now time
barred.
(The plaintiff had been rendered
unconscious by deficient medical care during the
fourt.een days.) The court then held that no
administrative remedy was available for that
plaintiff, and waived the exhaustion requirement.
Cnlz v. Jordan, 80 P'Supp.2d 109 (S.D.N.Y. 1999)

Jeq.

•

you were afraid of retaliation by the CO's
involved.

•

you were transferred out of the prison
before you had time to tile a grievance.

•

you were incapable of tiling a grievance
because of your injuries, location, etc.

•

your federal case has been dismissed
without prejudice to allow you 'U1
opportunity to exhaust your administrative
retnedies.

\XIhatever the reason(s), you should state
them clearly. If your grievance is denied as
untimely, you should appeal that denial all the
way through to the CORe. This way, even if

Pro St Vol. 13 No: 1 flaw: 2:,

DOCS concludes that the mitigating circumstances
presen ted for the late grievance are insufficient, you
may still be able to argue in court that your case
should not be dismissed for failure to exhaust
administrative remedies. For example, in Graham v.
Perez, 121 F.Supp.2d 317 (S.D.N.Y. 2000) the
court, in dismissing the plaintiff's complaint for
failure to exhaust, held that he should be allowed to
attempt to tile a late grievance, and that if DOCS
retlJsed to accept d,e late grievance, he could re-tile
his claim with the court, stating what the mitigating
circumstances were that caused him to fail to file a
timely grievance. The court would then usc its own
judgment to determine
whether sufficient
mitigating circumstances had been presented to
waive the exhaustion requirement.

6. W71at if I've already filed a pro-se lawsuit
witbout having exhausted my administrative
remedies?

If you have already tiled a lawsuit without
exhausting your administrative remedies it is highly
likely that the defendants raised this issue in their
answer as an affirmative defense.
If there is a good reason why you didn't
exhaust, you should explain it to the court. For
example, if an issue is not "grievable," and there is
no other administrative remedy (like a disciplinary
appeal) for that issue, you should argue dlat there
was no administrative remedy "available" to you,
and therefore you didn't have to exhaust.
In general, however, you are probably best
advised to try to exhaust as soon as you can. If
your suit is a damage suit tiled before Booth v.
C:hurner \vas decided, or a use ()f force or
retaliation case filed before Porter v. Nussle was
decided, you should request to have your grievance
considered late on the ground tbat the court
decision saying you had to exhaust was not decided
at the time of the incident you arc suing about. If
you are denied pem1ission to tile a late griev'illce,
appeal that decision all the way to the CORC.
If you succeed in exhausting before the

defendants raise exhaustion in your lawsuit, you
should argue that you have now satisfied the
exhaustion requirement. Although the decision
in Neal v. Goord says that you must exhaust
before you file suit or have your case dismissed,
you should ask the court to make 'ill exception
to the Neal rule because either the Booth or
Porter case had not been decided when you
filed suit and you did not know your case had
to be exhausted. You should make the same
argument if the defendants raise exhaustion
while you are trying to exhaust, and ask the
court to allow you to complete exhaustion
without dismissing your case.

7. W71at bappens ifmy case is dismissed frJr
failing to exhaust administrative remedies?

Courts have agreed that a dismissal for
fdilure to exhaust administrative rcmedies
should be "without prejudice," that is, the
plaintiff should be allowed an opportunity to
exhaust and, once exhaustion has been
completed, to re-file the federal complaint.
Morales v. Mackalm, 278 F.3d 126 (2d. Cir.
2002).
In practice, however, this presents
complications. For one thing, the fourteen
days within which to file a grievance will almost
certainly have already passed. You will have to
present mitigating eircumwmces to the IGRC
for your failure to have tiled a timely grievance.
If the IGRC refuses to accept your late
grievance, you will have to exhaust that decision
to CORC before you can go back to court.
Once back in court, you will have to convince
the court that there was a good reason that you
failed to tile a timely grievance ,md that the
JGRC should have accepted your late
grievance. See, e.R., Cruz v. )ord'ill, 80 F.Supp.2d
109; Gr;lham v. Perez, 121 F.Supp.2d 317.

Pm Se Vol. 13 No.1 page 24

In Conclusion
While many of the details of what constitutes
exhaustion of administrative remedies in different
circumstances are still being worked out by tbe
courts, it is now plain that if you are planning to
bring a federal lawsuit about something tbat
happened in prison, you must be prepared to argue
that you have exhausted your administrative
remedies.

Pro Se Mailing List
At this time, please do not write to PLS
requesting to be put on the PIV Se mailing
list. In a future issue we will tell you when
and how to make such a request.

EDITORS: JOEl, lANDAU, ESQ., KAREN MURTAGH-MONKS, ESQ. CONTRIBUTORS: BRENDAN UDONNEI J" ESQ.,
S. BETSY FULLER, ESQ., COPY EDITOR: ALETA ALBERT PRODUCTION: DAVID BOISVERT EDITORIAL BOARD:
TOM TElUUZZI, ESQ., BETSY STERLING, ESQ., KAREN MURTAGH-MONKS, ESQ