Vol. 13 Number 3: Summer 2003

Published by Prisoners' Legal SCiVices of New York

STATE SUPREME COURT ORDERS PAROLE BOARD TO GIVE FAIR
CONSIDERATION TO POSITIVE INSTITUTIONAL ADJUSTMENT
Two New York State Supreme Court
justices strongly criticized the Parole Board in two
recent cases, holding that its decisions to deny
parole had misapplied the law. One judge observed
that the Board may have been unduly influenced by
shifting policy considerations. Their decisions, in
Matter of Chan v. Travis. Index No. 3045-02 (Sup.
Ct., Albany Co.) and Matter of Boudin v. Travis,
Index No. 8264-02 (Sup. Ct., Albany Co.), are
notable for running counter to the courts' generally
deferential attitude toward the Board. In both
cases, the Court reversed the decision of the Board
and ordered that tbe inmates be granted new
hearings.
The Chan case involved inmate Denny
Chan, setTing a sentence of 9 to 18 yeats f()t
manslaughter. During his incarceration, he earned
a bachelor's degree in business 111anage111cnt frofn
Maryland State University where his final year grade
point average was 3.8. He was admitted to the
national academic honor society. He was certified
by tbe New York State Department of Labor as a
C0111putcr pn)granl1nCf, for which he trained for
two years.
He served as a teacher's aid, an
industrial worker, a carpentry apprentice and a prerelease counselor.
I-Ie had no disciplinary
infractions. The Board, in its decision, noted
Chan's good behaviot, but held that the "serious
nature" of his offense "prcclude[d] early release."
After exhausting his adtninistrativc appeals, Chan
filed an Article 78 proceeding alleging that the

Board had failed to sufficiently consider his good
behavior and that its decision was influenced by
political considerations.
The Court agreed. While the Board may
"h. cavy empnasls
1.
' " on an lnh1ate s cnmes,
pace
I
the Court held, it could not assert that Chan's
crime "precluded" his parole. "By legislative
prescription" the Court wrote, both Chan's
indeterminate sentences made him eligible for
>

"

(continued on page 2)

Also Inside ...
New Law Provides For Earlier
Rdease
page 3
News and Briefs

page 5

Disciplinary Roundup ......

page 14

Long Term Ad. Seg...........

page 18

Prison Litigation Reform Act:
Beyond Exhaustion.......
page 20

When To Use A Notary .".

page 22

ThiJ prqjed JPaJ suppotied I!y tJcsnm/ adminiJlered !?y fhe i\letl! Yor/;;; Stille Dif.'iJiril! ~/Ctit!litf{/! flutitl! Jen,j(t'J, Poil/ts (?tIl/en) ifl this
dottl!.!Jent f1!1! tIJoJe qlthe mltlJOT and do flot nN"CJJdJi!y njm:Jcl1t the (lliria! pOJitioll orpolidcJ q{ tbe Dil-iJiot! tlCritlti!!:d]I!Jtia: Jemic!!J.

Pro Se \'01. 1." Nil. ,,, Pane 2

parole at the conclusion of his minimum term:
"There is no exception for persons convicted of
manslaughter ... or [any] other violent crime."
The Court held it was not sufficient for the
Board to tnerely "note" an intnate's good behavior
in its written decision. ('Noting" an inmatels
positive institutional adjustment or achievements
"is not tantanlount to considering thenl in a fair,
reasoned and individualized manner ... Indeed,
such cursory treatlTIcnt tU111S 011 its head the
reformative or rehabilitative principle underlying an
indetenninate sentence."
The Court also credited Chan's allegations
that the Board's decision was influenced by political
factors - specifically, Governor Pataki's frequently
expressed view that violent felons should not be
granted parole.
"Clearly," wrote the Court,
"something has changed at the Parole Board ...
From [thc record of this case] thetT is an
undeniable inference ... that the Board is de/acto
implementing Executive policy by eurtailing parole
for violent felons."
"This State may be in
transition to determinate sentencing and the
abolition of traditional parole for all felons, but that
may not be imposed by administrative fiat on this
inmate and the class of innlates similarly situated. n
The Court ordered that the Parole Board
conduct a ne\v hearing. A court does not have
authority to order release on parole in a case
challenging the denial of parole.
The Boudin case involved Kathy Boudin,
an inmate well-known for her membership in the
Sixties radical gtoup the Weather Underground and
involvement in the "Btinks Robbery" in 1981, for
which she was serving a sentence of20 years to life.
At her sentencing, the sentencing judge stated, "I
see no reason in the world why [she] should not be
paroled at the expiration of the 20 years if the
parole authorities arc satisfled thaes appropriate."
During her incarceration she lnaintained an
exttcnldy p()sitivc ptlson record, becoining
involvcd in AIDS education and adult litetacy
progta1l1S and earning a tnaster's degree in adult
education. Nevertheless, Governor Pataki had
publicly expressed his opposition to hct parole.
The Board panel that heard her case
consisted of ()11C metnber whose terill had expired
and who was looking to the Governor f01:
reappointment. The panel denied parole, holding
that "due to the violent nature and circumstances

of the instant offense [Boudin's] release at this
time would be incompatible with rlle welfare of
society and would serve to deprecate the
seriousness of tlle criminal behavior herein so as
to undermine respect for the law." The Board
made no mention of either the sentencing judge's
recommendation or Ms. Bouclin's prtson
accomplishments.
The Court reversed. Although the Court
found that Boudin had not sufficiently supported
her allegation that the Board was unduly
influenced by political factors, it found that the
Board's failute to even consider the sentencing
judge's recon11nendat1cHls had violated Executive
Law section 259-i, which expressly requires such
consideration.
The Court also held that the Executive
Law entitles an inmate "to a written
determination stating the teasons for denying
parole [which] 'shall be given in detail and not in
conclusory terms.''' It found that the decision
given in Boudin's case - a decision typical of
those given in thousands of other cases - did not
meet that standard.
The Court ordered that the Parole Board
conduct a new heating.

Cases Run Counter to Trend..
The Chan and Boudin cases emerge
against the backdrop of a sharp decline in parole
for violent felons over the last decade. In 1993,
for instance, 54 percent of violent offenders wete
paroled upon theit first appearance befote the
Board. By 2002, that number declined to 20
percent. In lnany cases, the Board's decisions
denying parole have placed heavy emphasis on
the underlying crime while seemingly ignoring
evidence of rehabilitation.
This trend has been a source of ciCCI'
frustration f(n lTI3ny inlnates, particularly those
who have worked hard to overcome theit
criminal convictions and tnaintain positive prison
nx,ords.Many have argued that it is both unfait
and illegal for the Board to place such heavy
emphasis on the underlying crime as a teason to
deny parole. They argue that once they have
served their minunutn terms of incarceration for
the crimes for which they were convicted the
parole inquiry should focus on how they have

Pro Se Vol. 13 No.3 Page:'

behaved in prison and 011 any evidence they can
present of rehabilitation. They have also argued
that the decline in pamle is evidence that the
Board's decision making improperly reflects the
Governor's desire to be seen as "tough on critne/'
rather than a fair and objective review of their
individual cases.
New York's appellate courts have long
been unsytnpathctic to such claims. They have
generally held that the Parole Board has broad
discretion to deny parc)lc based on the seriousness
of the underlying offense, so long as the record
shows at !cast token consideration of the other
factors hsted in the Executive I "aw. See, e.R. Matter
of Davis v. New YOt"k State Board of Parole, 114
AD2d 412 (2d Dep't 1986). In such decisions, the
coutts have sub"pested that it is within the Board's
"
discretion ro give greater weight to the underlying
offense now than it has in the past and have
rejected allegations that the Board is impmperly
int1uenced by politics.
T"vo cases fr01n the past quarter illustrate
the courts' usual deference to the Board. In Matter
of Lue Shing v. Pataki, 754 N.Y.S.2d 9G (3d Dep't
2(03), the Coutt tejected an inmate's allegations
that the Board had failed to give him a fair hearing
and was instead merely implementing a policy of
the GovernOt" under which all violent felony
offenders are denied pato!c without consideration
ot application of the statutory factors outlined in
the Executive Law. The Court held that its review
of the record showed that the Boatd's decision did
not tet1ect any pte-detennination of the mattet
consistent with an alleged C;ubernatorial p()licy.
Although the 1'ecord reflected petitioner's
exetnplary prison record, the Coutt found that this
"is but ()ne factor to be conside.ted by the Board,
because "disc.tetionary release on parole shall not
be granted lnercly as a reward for gc)()d conduct or
efficient pe1'fottnance of duties while confined'"
and "it is permissible fot the Boatd to place
ctnphasis on the serious nature of a petitioner's
crinlcs in denying parole" (citations ornitted).
In Mattet on·Jakim v. Travis, 754 N.Y.S.2d
600 (3d Dep't 2(03), the eourt rejected an inmate's
appeal of his patole denial notwithstanding
evidence in the record of his productive usc of til11c
during his incarceration and his clean disciplinary
record. The Court found that the Boatd had
considered all the required statutory Etctors, and

that since dlOse included the serious nature of
petitioner's crime, it was pemussible for the
Board to reject a pamle applieation on that
ground. The Court rejected the inmate's
argument that the Board is precluded from basing
its 1110St recent denial of parole on the same
grounds that it invoked it Its prevIous
determination. Sinee the Board is tec!uited to
consider the same statutory factors each tinle an
inmate appears before it, "it follows that in tnany
cases the satne aspects of an individual's record
will constitute the pti1l1aty grounds for denial of
an application for pat()le release."

P,uole Boat"d Gets the Final Wot"d
The Chan and Boudiu decisions are all
the more temarkable against this backgmund of
declining pamle and hostile courts. Whether they
represent a trend, however) renlains to be seen,
The Division of Parole is appealing the Chan
decision to the sanle court that decided Lue
Shing and Hakim. And the Boatd '(gain denied
pamle to Ms. Boudin at het comt-otdered rehearing.

NEW LAWS TO PROVIDE FOR
EARLIER RELEASE
A message from Tom Tetrizzi
PLS Executive Director

Responding to pressure to reduce state
spending in a time of seven, budget strain, the
2003 New York State budget bill intmduced
several new laws intended to speed the release of
certain persons now serving tune for non-violent
felonies. In addition, DOCS has re-intetpteted
SOUle existing stah1tes with the san1C goal.
Regardless of the motivation for these acts, they
arc a welcolne contrast t() twenty yeats of tougher
sentencing laws. The following is a sunnnary of
S0111e of the news laws.

Merit Time expaJlded rot" A-I drug felonie8
The budget bill amends seetion 803(d) of
the Correction Law to pcrn1it persons serving an

Pro Sc VoL 13 No_ ,\Page 4

indeterminate sentence for an A-l drug felony (i.e.,
criminal sale of a controlled substance in the first
degree) to receive a merit time allowance of up to
one-third off the minimum term.
This is
substantially more than the one-sixth off the
minimum which applies to other non-violent
indeterminate sentences.
\Vhere such a person is serving multiple
sentences, the sentences \.viU be calculated as
follows: If the person is serving two or more
concurrent sentences, one of which is an A-l drug
felony, the minimum of the A-lone may be
reduced by one-third, while the minimums of the
other felony or felonies may be reduced by onesixth. The sentence with the longest minimum
determines when the person is eligible for release.
If the person is serving two or more consecutive
sentences, one of which is an A-l drug felony, the
aggregate of the minimum terms may be reduced
by one-third for the A-l portion of the sentence
and by one-sixth for the other felony or felonies
:tn11l11nutns.

Eartled eh"gibI1ityprogram expanded
The budget bill expands the earned
eligibility program, Correction Law §805, to include
those persons \vith a minitDum of eight years on an
indeterminate sentence, up from six years. The
other eligibility rules stay the same.

Presumptive release created
The budget bill creates an entirely new
category of release from prison called presumptive
release. The new law, Corrrection Law § 806,
permits the Commissioner of DOCS to
" preSU1Dpttve
. Iy te Iease " persons serVIng
.
nonviolent felonies who have been awarded an eamed
eligibility cettificates at the expiration of their
lllinilnul11 tertns and to release persons serving
non-violent felonies who Incet the ctiteria fot merit
time upon the expiration of 5/6ths of the
nlininlu!l1 ternl. An intnate tnust apply for
presumptive release. The Cotlunissioner ll1ay
refuse to release an otherwise eligible person if he
determines that the release would not be consistent
with the safety of the community or the welfare of
the inmate. Persons previously convicted of or
currently serving a sentence Eot a violent felony, A-

1 felony or a sex offense are not eligihle, nor are
those who have "conunitted any senous
disciplinary infraction."
The details of the
application process will have to be worked out by
DOCS and the Division of Parole in new
regulations.
The Commissioner can revoke a grant of
presumptive release if a person gets a (lisciplinary
infraction or fails to continue to participate
successfully in an assigned \vork or treat111cnt
program after receiving a cettificate of eamed
eligibility. Once released, the person will be in
the custody of the Division of Parole. Like
parolees and those on conditional release, all
parole laws and regulations regarding supervision
and revocation will apply to a person who is a
presumptive releasee.
If a person is eligible for presumptive
release but the application is denied hy DOCS,
that person will still appear at the parole board
for release consideration at the merit time date.
A denial of presumptive release docs not
automatically mean that early parole will also be
denied.

Early termination ofPi/role
Finally, the bill creates another new
statute which will permit the Division of Parole
to grant a "nlcrit terlnination of sentence" to
most persons convicted of a non-"vic)lent felony
who are on parole, conditional release or
presumptive release. The old law referred to this
as "discharge" fronl parc)le or C01H.utional release.
If granted, the merit termination ends the
sentence.
The merit termination can be granted to
those convicted of most non-violent felonies
after one year of their release from prison. Like
the old discharge law, the Division of Parole Inust
deternune that it is in the best intefcst of society
to grant termination of the sentence. The
Division h1Ust also determine if a petscH1 who is
financially able to comply with an order of
restitution or required to pay a mandatory
surcharge made a good faith effort to do so.

Earh"et Eligibih"ty fOf Tempomry Release
In ad(lition to the above changes in the

Pro Se Vol. 15 No.3 Pai.!c 5

law, DOCS has recently rE:-interpreted the
Correction Law to provide earlier eligibility for the
temporary release l>rogram. Previously, DOCS
interpreted the law to mean that inmates were
eligible for temporary release only when they were
within two years of their parole eligibility date.
Under the new interpretation, DOCS will permit
inmates to be considered eligible for temporary
release when they are within two years of their
merit time date.
It was predicted during state budget
discussions that up to 1300 people will get early
release under these new laws this year. Much will
depend, however, upon how quickly DOCS can
get the necessary regulations in place, particularly
for preSUlnptlve release, and how the
Conunissioncr intctptcts his new authority.

II

NEWS AND BRIEFS

II

SOI1 of s,Jtrl L,"v Survives COI1.•titutiol1al
Cl"llletlge
New York's :uncndcd Son of San1 Law,
(about which we reported in our last issue) bas
survived its fIrst constitutional challenge. In New
York State Crime VicW}), Board v. Abdul Majid,
749 N.Y.S.2d 837 (Sup. Ct., Albany Co., 2002), the
court rejected an inmate's claims that the law
violates the expo.rtjfJdll clause and the due process
clause of the federal constitution.
The Son of Sam Law allows crime victims
to sue a convicted criminal within three years after
learning that he has received funds in excess ()f
$10,000.00, from any source (other than earned
income or child support). It also authorizes the
Crime Victims Board (CVB) to seek provisional
rC1TIcdics against convicted crirninals on behalf of
crinlc victims, to prevent the assets fron1 being
spent before the victim is able to bring suit.
In Crime Victitns v. Abdul-Majid, the
defendant, an inmate, had been convicted of
murdering a police officer and attempting to
murder another. On April 2, 2002, the CVB
received notice that he was to receive a payment of
$15,000.00 from the State of New Yotk, in
settlement of a civil lawsuit against the State.
The CVB brought a preliminary action

against Abdul-Majid, seeking an injunction
prohibiting him from "disbursing, distributing,
encunlbering O[ assigning" any funds in his
inlnate account pending the outcome of a lawsuit
brought by the vietitns of his offense.
Abdul-Majid responded by challenging
the law on constitutional grounds. He argued
that the new statute violated the expostjacto clause
of the Constitution. (fhe ex post jado clause
proh.ibits the State from retroactively chanf,>1.ng
the definition of a crime, or from imposing a new
punishment that did not exist at the time the
critnc was conunittcd.)
TI,e Court rejected this argument. It
noted that statutes that merely create new civil
tetnedies, as opposed to criminal punishments,
do not violate the ex pO.ll.fileto clause. The
provisions of the Son of Sam Law at issue in this
case were those that authmizc the CVB to scek
an injunction of a convict's funds on behalf of
crime victims.
These provisions essentially
authorize the CVB to act in the victims' place to
apply for civil remedies that have always been
available to crime victims. Thus, the Court
found, they do not violate the ex po.rtj'lt'to clause.
Abdul-Majid also argued that the statute
violated the due process clause of tl,e
Constitution. (The due process clause prohibits
the state from depriving its citizens of "life,
liberty or property" without a rational basis for
doing SfL
\X!here "there is a reasonable
connection between [the deprivation] ·and the
promotion of the health, comfort, safety and
·welfare of society," however, a "rational basis"
for the statute will generally be found, and the
due process clause will not be violated.) Here, the
Court noted that the United States Supreme
Court had found an earlier version of the Sou of
San1 law constitutional. In that case, Simon and
Schuster v. Members of the New York State
Crime Board, 502 U.S. 105, the Court held:
"There can be little doubt ... that the State has
a compelling interest in ensuring that victinlS of
crime are eompensated by those who harm them.
Every State has a hody of tort law serving exactly
this interest. The State's interest in preventing
wrongdoers from dissipating their assets before
victims can recover explains the existence of the
State's statutory provisions for prejudgment
renlcdies and orders of restitution." The New

Pro Se VoL 13 No.3 l\we G

resulted in the Legislature amending the law to
provide additional due process protections to
offenders in risk level classification hearings. See,
Doe v. Pataki, 3. F.Supp.2d 456 lSD.N.Y. 1998].)
In Connecticut Dept. of Public Safety v.
Doe, _ U.S. _,123 S.Ct. 1160 (2003), the Court
teversed the Second Circuit and upheld the
Connecticut statute, finding that a mete injury to
one's reputation dc)cs not constitute a deprivat.ion
of a libetry interest. It is thus unlikely that the
additional due process protections added to the
New York statute after Doc are required by the
federal constitution.
Three Strikt~s Laws
In two consolidated cases, the Supreme
Coutt upheld California's three strikes law, wliieh
mandates prison sentences of 25 to life fot a third
felony conviction, tegardless of the nature of the
conviction. One of the cases involved a defendant,
Leandro Andrade, who was given a fifry-year
sentence for stealing less that $150.00 worth of
chiJdtens' videos from two K-Mart stores. The
other case involved defendant Gary AIbert Ewing,
who was sentenced to 25 years to life for stealing
three golf clubs worth $1200. In the two 5-4
decisions, thc Court found that the three strikes
laws do not violate the Eighth Amendment's ban
on cnlel and unusual punish111ent and are a valid
means for state lawmakers to attempt to keep
career criminals off the streets, even when the third
cru11c corntnittcd is a relatively 1l11110r one.
In Lockyer v. Andrade, __ U.S. __,123
S.C!. 1166 (2003), the Court reversed a ruhng by
the Ninth Circuit which had mled that Andrade's
sentence was "grossly disproportionate" to his
ctime and thus violated the Eighth Amendment.
The high court reversed, finding that it was unclear
as a matter of federal law whether the sentence was
unconstitutional and that, therefore, the fedeml
coutts should defer to the Califomia State Courts
- which had previously held the statute to be
constitutional- because their judgrrlcnt was not an
lltlteasonable application of clearly established
fedetal law.
Fout justices dissented, finding no
justifiable reason for such long sentences. In a
strongly worded opini(m, Justice Souter wrote:
"\"X1hether or not one accepts the state's choice of

penalogical policy as constitutionally sound, that
policy cannot reasonably justify the imposition of
a consecutive 25-year mininnuTI for a second
minor offense committed soon after the first
triggering offense, Andrade did not somehow
hecon1c twice as danger()us to society when he
stole tbe second handful of videotapes, his
dangerousness lTItly justify treating one nlinor
feh)ny as seriOUS and watrantlng long
incapacitat.ion, but a second such felony docs not
disclose greater danget watranting substantially
longer incapacitation. Since the defendant's
condition has not changed between the two
closely related thefts, the incapacitation penalty is
not open to the simple arithmetic of multiplying
the punishment by two without tesulting in gross
disproportion even under the State's chosen
bcnchtnatk."
Setting aside the dissenters, howcvet, the
Court also upheld the three strikes law in Ewing
v. California, _U.S._, 123 Sct. 1179 (2003).
"State
There, Justice O'Connor wrote:
legislatures enacting three strikes laws made a
delibetate policy choice that individmls who have
repeatedly engaged in serious or vic)lent crinlinal
behavior, and whose conduct has n()t been
deterred by morc conventional punishment
approaches, must be isolated from society to
protect the puhlic safety ... Though these laws
are relatively new, this court has a longstanding
tradition of deferring to state legislatutes in
making and implementing such important policy
decisions. "
Mandatory Immigration Dt,tention
One decision likely to have an immedi,ue
impact on New York State inmates is Demore v.
Kim, 123 S.C!. 170S (2003), in which the Coutt
ruled, in another 5-4 decision, that the fedeml
ftOVernrncnt 111avJ detain lawful in1nugrants
convicted ()f "aggtavated" felonies without bond
duting the pendency of their deportation
hearings. The decision upheld the mandatorydetention provisions of a 1996 imtnigt'ation law,
the Illegal Immigration Reform and Immigrant
Responsibility Act ("lIRA IRA"). For New York
Inrnates who are not U.S. citizens, this decision
means they will almost cettainly be detained by
the INS after their criminal sentences have been
<.~

J

Pr() Se Vo!. UNo.." Page 7

completed, without any entitlement to bailor a
bond, until their deportation proceedings end.
The mandatory detention provisions of the
lIRAIRA replaced an earlier law which gave the
A ttomey General the discretion to release
individuals on bond while their deportation cases
went forward as long as they presented neither a
flight nor a securiry risk. Tens of thousands of socalled "ctitninal aliens" have been ll1prisoncd
under the new law.
In affinning the constitutionahry of the new
law the Court ovenuled four federal appeals courts
that had declared the mandatory-detention
provision unconstitutional as applied to lawful
pCr1l1anent residents, since they have 1"norc rights
than aliens who have not been lawfully adm.itted
into the country.
The case i.nvolved a Korean-born
Californian lawful im.migrant named Hyung .loon
Kim, who is still contesting his deportability and is
not yet subject to a final order- of retnoval. Mr.
Kirn Gane to the United States from Kc)tea with
his family at the age of 6 and became a permanent
resident t\Vo years later. After two criminal
convictions in Califotnia as a teenager, one for
burglary and one for theft, he was placed in
deportati()i1 ptoccedings and in1prisoned under th(~
new law. After three months in detention, he filed
a petition f,)r a writ of habeas corpus arguing that
be was constitutionally eligible for release while
challenging his deportation
Five Jllstices found 110 constitutional
requir-ement for a hearing at which a detained
immigrant could demonstrate eligibility for telease
on bond. ChiefJustice Rehnquist, writing for- the
majority, said that "against a backdrop of wholesale
failure" by irnrnigration authorities under the old
law to deal with rising rates of ctilllC by aliens,
Congress had adccluatdy demonstrated a need to
irnprison aliens awaiting dcpotta6on for past
ctitnes to kee!) then1 frol11 C01111nittil1ir new ctilnes.
\Vhile Congress might have permitted
11 individualized bail deternunations,lI in the past he
said, "when the government deals with deportable
aliens, the Due Process Clause docs not requite it
to employ the least burdensome means to
accomplish its goal."
In a dissenting opinion, Jus6ce Souter said
the decision "\-vas "at odds with the settled standard
of liberty," undet which the government docs not
<)

have the right to detain an entire class of people
but must justify the detention of individuals on a
case-by-case basis. "Due process calls for au
individual determination before someone is
locked away," Justice Sourer said.
Note: ThiJ iutfe olPtv Se wetlt to /ms.r belOl"
the GHat's decirio1l i1l 0lJert01l 1/. Ba?zetta, _U.S. _.
123 S.C!. 12612 (2003), ill t/llnd; the GmTt tfphdd
hZgh!y re.rtnttil'e IJi"fatio1llrgtflatioiIJ ill Michzgall. Pm St!
will take a dOJe look at the O;'etton cleririon and tfJ likdy
imjJ/icati()fiJjiJr NeJJ! York inmates in olll' tle"\'Il~(me.

Son of Sam Law Snrvives Constitution,,]
Cballenge
New York's an1ended Son of Satll Law,
(about whieh we reported in our last issue) has
survived its fIrst constitutional challenge. In New
York State Crime Victims Board v. Abdul Majid,
749 N.Y.S.2d 837 (Sup. Ct., Albany Co., 2002),
the court: tejected an inmate's claims that the law
violates the eX'postj;"to clause and the due process
clause of the federal constitution.
The Son of Sam I ,aw ,,!lows crime victims
to sue a convicted critninal within three YC:Il"S
after leaming that he has received funds in excess
of $10,000.00, from any source (other than
eatned income or child support).
It also
authorizes the Crime Victims Board (eVE) to
seck provisional remedics against convicted
cr1tnlnals (>tl behalf of ctitne victi111S, to ptevent
the assets frolIl being spent before the vict1tl1 Is
able to br-ing suit.
In Crime Victims v. Abdul-Majid, the
defendant, an imnate, had been convicted of
murdering a police officer and attempting to
murder another. On April 2, 2002, the CVB
received notice that he was to receive a paYl11cnt
of $15,000.00 hom the State of New YOtk, in
settlement of a civil lawsuit against the State.
The CVB brought a preliminary action
against /\bdul-Majid, seeking an injunction
prohibiting him from "disbursing, distributing,
cnculnbering or assigning" any fund.s in his
inmate account pending the outcome of a lawsuit
brought by the victims of bis offense.
Abdul-Majid responded by challeng1ng
the law on const1tuti()na] grounds. He argued
that the new statute violated the eX/,IIJtjtido clause
of the Constitution. (rhe ex po.rt j;/{'to clause

Pro S.C \'o!. UNo 3 Page R

prohibits the State from retroactively changing the

equities that favor injunctive relief.

definition of a crilne, or fronl inlposing a new

Court held, "the victitns of defendant's crllles

punishment that did not exist at the time the crime
was committed.)
The Court rejected this argument. It noted
that statutes that h1crely create new civil remedies)
as opposed to crirninal punishments, do not violate
the ex 1'OJ/'/;1("/0 clause. The provisions of the Son
of Sam Law at issue in this case were those that
authorize the CVB to scck an injunction of a
convict's funds on behalf of crime victims. These
provisions essentially authorize the CVB to act in
the victims' place to apply for civil remedies that
that have always been available to crime victims.
Thus, the Court found, they do not violate the ex
1'o.rt./acto clause.
Abdul-Majid also argued that the statute
violated the due process clause of the Constitution.
(Ihe due process clause prohibits the state from
depriving its citizens of "life, liberty or property"
without a rational basis for doing so. \'iJhere "there
1S
a reasonable connection hetween [the
deprivation] and the promotion of the health,
comfort, safety and welfare of society ,n however, a
"rarional basis" for the statute will generally be
found, and the due process clause will not be
violated.) Here, the Court noted that the United
States Supteme Court had found an earlier version
of the Son of Sam law constitutional. In that case,
Simon and Schuster v. Members of tbe New York
State Crin1e Board, 502 U.S. 105, the Court held:
"There can be little doubt ... that the State has a
compelling interest in ensuring that victims of

and the citizens of tbis State would be irreparably
damaged if the defendant was allowed to spend

cri111c arc cotnpensated by those who harnl theln.

Every State has a body of tort law serving exactly
this interest. The State's intetest in preventing
wrongdoers from dissipating their assets before
victims can recover explains the existence of tbe
State's statutOlY provlslOns for prejudgment
remedies and orders of restitution."

Here, the

the funds in his inmate account before a court

could detetmine whether be will be required to
pay that money over to his victims."
Consequendy, the Court granted the CVE's
request and enjoined Abdul- Majid from spending
his money, pending the outcome of the victim's
lawsuit.

Paroled IIlmate WiIlS New HeariIlg OIl
LiceIlse ApplicatioIl
LaClocbe v. Daniels, 755 N.Y.S.2d 827 (Sup. Ct.,
NY. Co., Feb. 13,2003)
Petitioner l,aCloche, a parolee, was
convicted in 1991 of robbery in the first degree.
During his incarceration he completed vocational
training. to become a hatber. He received good
.
evaluations, becatne [nst a barber's assistant and

tben a professional barber, 'md ttained other
inmates. He also earned a high school eCluivalency
cliplo1TIa. In August of 2000, anticipating parole,
he applied to dIe New York State Division of
Licensing Services for a cetriflcate of registration
as a barber's apprentice. His application was
denied on the ground that his crimin,d history
"indicated lack of good moral character and
trustworthiness required for licensure.'·'
Cmrection Law § 752 states that "no
application for any license ... shall be denied by
reason of the applicant's having been previously
convicted of one or tnorc crinunal offenses, or by
teason of a finding of lack of 'good moral
chatacter' when such finding is based upon the
fact that the applicant has previously been

The New

convicted of one or tnorc c!itninal offenses,

York court found rhe Supreme Court's discussion
conclusively established that the Son of Sam law is
reasonably related to a legitimate state interest, and
thus did not violate the due process clause.
A ftef rejecting defendant's constitutional
challenges, the Court addressed the merits of the
CVB's tequest for an injunction. To obtain an
injunction the moving party must show, (1) a
likelihood of success on the merits, (2) itteparable
injuty should the injunction not be granted and, (3)

unless: (1) there is a direct relationship between
one or more of the previous crinlinal offenses
and the specific license or employment sought; or
(2) the issuance of tbe license or the granting of
the employment would involve an unreasonable
risk to property or to the safety or welfare of
specific individuals or the general public."
C»ttection Law § 753, tneanwhilc, states
that the Division of Licensing Services 111USt
consider several factors in detennining whethct

Pro Sc Vol. 13 No..1 Page 9

who has been convicted of a critne lacks
'good moral character.' These include the public
policy of New York to encourage the licensure and
employment of persons previously convicted of
one or more criminal offenses; the duties and
responsibilities necessarily related to the license or
employment sought; the bearing the criminal
offense or offenses for which the person was
previously convicted will have on his fitness or
ability h) perfot1n onc or 1110re such duties ot
rcsponsibilities; the time which has elapsed since
the occurrence of the criminal offense or offenses;
the age of the person at the time of occurrence of
dIe crllll1nal offensc or offenses; the seriousness of
the offense or offenses; any information produced
by the person, or produced on his behalf, regarding
his rehabilitation and good conduct; and the
legitimate interest of the public agency or private
employer in protecting property, and the safety and
welfare of specific individuals or the general public.
LaCloche challenged the Division pf
Licensing Service's decision in court. He argued
that it was absurd for the State to provide him with
vocational training in prison and then refuse to
grant hi111 a license to practice the very vocation for
which it had trained him.
The Courl: ruled in favor of LaCloche. It
found that the Division had failed to consider any
of the factors listed by the Correction Law other
than petitioner's crinlinal conviction. The court
also noted the ittationality of the State's position:
"If the State offers this vocational training program
to persons who are incarcerated, it must offer them
a reasonable opportunity to use the skills learned
thereby, atiet they are released hom prison.
Otherwise, there would be litde incentive to the
prisoner· to study this skill. To refuse to certify an
applicant as a barber apprentice solely because of a
previous critninal convict.ion w(Hlld be to deny the
applicant the opportunity to practice a tude which
the State itself taught him/heL" Consequendy, the
decision \vas reversed and the Division was ordered
to reconsider the I,aCloche's application.
S0t11COne

State Found Li"bJe for Inmate De"th
Arias v. State of New York. 755 N.Y.S.2d 223
(NYCtCI.,2003)
A Court of Claims Judge has held New
York State liable fot the death of an inmate,

William Newborn, who died of a drug overdose
at Green Haven Correctional Facility in 1997.
The Court found the State liable for medical
malpractice and negligence.
Newborn was in protective custody at
Green Haven. In May , a DOCS counselor
teferred him for a psychiatric evaluation after
noticing his "rapid mood swings and poot
disciplinary recotd." After evaluation, he was
designated a "Level One" OMH patient, meaning
that he required the most intensive level of care
and "one-to-one administration of medication by
a nurse." He was subsequendy prescribed large
quantities of Pamelor, a brand name of
Notriptyline, an antidepressant.
In July, Newbot:n appeared before the
Parole Board. Later that month he reportedly
told a social worker that he would attempt suicide
if denied parole. On July 24, a DOCS psychiatrist
prescribed both Trilafon and Elavil to help him
sleep.
(fhe court later found dlat "[ilt is
medically contraindicated to prescribe Elavil and
Pamclor at the same time.") A t the end of July
he found out he had been denied parole and
would have to serve at least two tnore years in
ptlson.
On August 1, at approximately 12:50
p.m., he requested to go back to his cell from tbe
exercise yard to get ready to go to PSU. He was
allowed to leave and return to his cell. He asked
a correction officer to leave his cell door open i.n
case the escort officer was late, but the C.o.
refused. He became agitated and was told by the
C.o. that if the escort officer did not arrive in 20
minutes, he would let him out of Ius cell. The
escort officer never calnc.
At approximately 1:20 p.m., he began
calling for the Block officer. An officer arrived
but refused to let him out of his cell. He then
became (~wild" and "trashed his cell." ()fficcts
spoke with hinl for about twenty minutes, trying
to calm him down. After straightening his cell,
he was allowed to go back to the yard but within
15 minutes he requested to go back to his cell
cotnplaining that "they" would not leave hiln
alone. OMH was notified that he was talking to
himself and they requested that someone escort
hinl to PSU, but apparently this request was
never followed.
At approximately 2:00 p.m., another C.o.

Pro SeVol. 13

No.:~

llage 10

saw hifn grab sonlething and put it t<J his tnouth:
"The block officer obse.rved him throwing an
empty container to the floot. \Vhen questioned
what it was, he told the officer it was pills for his
headaches and to help him sleep. He then laid
down on the floor. He was questioned several
times as to what he ingested and he insisted that he
only took one pill. The C.O. noted that the empty
bottle was dated July 30 and originally contained 30
pills.') Eventually he was transported to an outsidc
hospital aftet becoming non~responsive and
suffeting a seizure. He died of complications due
to an overdose of Notriptyline 13 days later.
The Court held that the State was fully
liable fm Newborn's death. It found that the
undisputed [ecotd suggested that medical
malpractice and substandatd psychiattic catc had
facilitated a preventable suicide. The State had
failed to coordinate treatment between physicians
in DOCS and those in () M H, had neglected to
adequately review Newborn's history of mental
illness, had failed to detect his deteriorating mental
condition and neglected to respond appropriately
and promptly to his overdose. Among otlle.r
things, the Court noted rhat DOCS' policies
specifically state that drugs be administeted only by
appropriately licensed personnel "who shall cnsme
that psychottopic medications such as
Pamelor/Nortriptyline are swallowed by the inmate
patient." Those policies were not followed. The
Court also relied upon a repott by the State
Commission of Correction Medical Review Board
which had fmaid (;r((n Haven's management of
Newborn's medication to be deficient.
The State argued that Newborn had also
been negligent and, thcrcfme, it should only be
partly liable. The court held: "The issue of
contributory negligence in a suicide case is whether,
based upon the entire testimony presented, the
ttier of facts concludes tlle injured person was able
to control his actions.}) This is to bc nlcasured
"not based upon the objective standards of a
teasonable person, but rather ... upon the capacity
of the patient and his perception of danger,
considering the degree of his illness.... General
allegations, tnerdy conclusory in nature and
unsupported by C0111petent evidence are
insufficient to defeat claitnanes entitletnent to
5u1n1nary judgtncnt." Herc, the Court found, the
State had subtnitted onlv an affirmation of its

c()unse1, which was not based upon any "personal
knowledge of the essential facts" and was thus
insufficient to dcfeat thc claul1aneS nlotion for
summary judgment. The Court also noted that
the State had failed to submit any evidence from
a medical expert "to establish tha t decedent was
not so mentally impaired that he was able to
control his own actions. . . ." Thctcforc, the
Court concluded, Newborn could not be found
contributorily negligent
A trial on damages will be scheduled at a
later date.

Violation of Visitation Regs Results in
Damages For Inmate
Tlie decision in Dawes v. State of New
York, 755 N.Y.S.2d 221 (Ct. of C1., 2003) is
straightforward enough: Claimant Dawes was
awarded $100 in damages after DOCS restricted
his visitation privileges in violation of the
provisions of 7 NYCRR 200.5. It is more
colorful, however, with some background.
More then twenty years ago, New Yark
State inmates, represented by Prisoners' Legal
Services, challenged the constitutionality of the
then~existingvisitation regulations. The inmates
won. A federal district COlitt held that the
DC)CS' regulations wcre unconstitutional because
they gtanted DOCS the authority to withhold or
revoke visitation for vittually any reason without
due process of law, See, Kozlowski v. Coughlin,
539 F.Supp. 852 (SD.N.Y., 1982) As a result,
DOCS entered into a consent decree in which it
ptotnised to institute new visitation rcgulations.
The new regulations, now coclified at 7 NYCRR
200.5, e! seq., protected inmates' visitation rights
by stating that visitation may only be suspended
or revoked for "visit-related" tnisconduct)
providing both the inmate and th" visitor an
opportunity to cont"st the restl-iction_ See, 7
NYCRR § 200.5(a)(4).
In 2001, DOCS moved to terminate the
consent decree.
In doing so, it relied on
provisions of thc Prison Litigation Reform Act of
1995 ("PUli\''') which require coutts to terminate
any C(Hlscnt decree governing prison condiu()t1s
"if the relief was approved 01' granted in the
absence of a finding by the court that the relief is
narrowly dra\Vll, extends no further than

Jlro SeVol. \3 Nfl. 31l agi: 11

necessary to correct the violation of the Federal
right, and is the least intrusive ineaos ncccssaty to
conect the violation of the Federal right." 18
USc. § 36260»)(2). The District Court granted
DOCS' termination motion. It reasoned that the
Supreme C:ourt, in a decision issued six years after
the original Kozlowski decision, had held that
innlates had no constitutional right to visitation at
all (citl-',g Kentucky Department of Corrections v.
Thompson, 490 U.S. 454 (1989)) and that,
therefore, the consent decree necessarily went
"further than necessary" to protect inmates' federal
rights.
Plaintiffs have appealed this decision,
arguing that the district court misinterpreted
Kentucky and that the due process clanse does
indeed protect inmates' visitation rights. That
appeal is still pending.
In the nlcantitnc, the quesilon arose
whether the regulations that were drafted pursuant
to Kc)zh)wski - and which renlain on the books tnay still be enforced in x/ate court, despite the fact
that the federal court has terminated the consent
decree, which required them. This is where Dawes
cotnes 111.
In January of 2000, inmate Dawes received
a misbehavior report for allegedly assaulting a staff
111ctllber. The incident: was unrelated 1() a visit.
Nevertheless, the next day, he received a
tnen1or<lndutn frotn a Captain stating that, as a
result of the assault, his visitation would be
restricted to the ('non~col1tact') area and he would
remain in full mechanical restraints during any visit.
Dawes sued for damages in the state Court of
Claims, alleging that the visitation restriction
violated his rights under the regulations. After a
trial, the Court ruled initially in the state's favor: It
held that DOCS' regulations concerning restraints
gave thenl authority to restrict T)awcs' visitation to
the non-contact area. Dawes obtained counsel and
rHaved to reargue. In his motion, he pointed out
that the Kozlowski regulations wetT still on the
books, even though the consent dect·ee, which
recluired them, had been terminated. So long as
they existed, he argued, they could, and should, be
enforced by the state courts. The Court agreed and
reversed itself. It held that DOCS had violated the
visitation regulations by prohibiting Dawes froln
having contact visitation as a result of nusbehavior
that was not visit-related. (The Court noted that
DOCS has many other means of punishing and

deterring assaults on staff without having to limit
his visitation tights in contravention ()f their own
regulations.)
The inmate IMJ repreJtnted in hiJ motion to
rem;glle by l'risomrs' L;gal Sentl,'es o[Nell) York.

ramily GOllrt: Inmate H"s Right to Attend
Child SlIpport Hearings. ...
Matter of I<:irehner o.b.o F.G. v. E.H., 755
NYS.2d 793 (NY Paln. Ct. 2(03)
In this case, the respondent E.H., an
incarcerated father, was ordered to pay child
support in the amount of $25.00 per month. He
objected on the grounds that he had not been
produced at the hearing and afforded the
opportunity to defend himsdf against the
petition, despite the fact that his incarceration
was known to the hearing officer who entered
the child support order. The court agreed.
Although Family COUt'l Act § 413(I)(g)
establishes $25.00 per month as the minimal
amount of child support that may be paid, the
Court of Appeals has hdd that a court may grant
an order of less than $25,00 in appropriate eases,
even down to $0.00 child support. Matter of
Rose v, Moody, 83 NY2d 65, 607 (1993). Thus,
not only was the inmate-father in this case
deprived of his right to atrend the hearing, but
also tbe court could not rule out that had he been
allowed to attend he might have persuaded the
hearing examiner that the appropriate child
support in his case Was less than $25.00. Under
those clrcurnstanccs, the 1·'al11ily Coutt ,vas wrong
to proceed without him. The Court noted that
DOCS has ptovisions for conducting telephonic
hearings and ordered that the child support
hearing be beld again with the father in
telephonic attendance.

, .. .BlIt No Right to Coul1sel ill Visitatioll
Hearil1g
Matter of Ward v. .Jones, 757 N.Y.S.2d 127 (3d
Dep't 2(03)
Petitioner \V'ard, an inmate, sought
visitation with his two children. FolJowing a
hearing in Family Court, at which the parties

ProSe VoL 13 No_ 3 Pave 12

appeared pro Je and testified, the Court denied
petitioner's application, finding that visitation
would not be in the children's best interest.
Petitioner appealed. In his appeal he argued that he
was denied his right to assigned counsel at the
Family Court hearing. 'fhe court rejected his claim.
The Family Court Act § 262 (b) states that "a judge
may assign counsel to represent any adult in a
[Family Court] proceeding if he determines thar
is manda ted by the
such assignment.
constitution of the state of New York or of the
Unit<:d States." 'fhus, at issue was whether either
the Federal or the State Constitutions required
appointment of counsel.
The Supreme Court has held that "when
the State moves to destroy weakened familial
bonds, it must provide the parents with
Santosky v.
fundamentally fair procedures."
Kramer, 455 U.S. 745 (1982). Fair procedures,
however, are not automatically equated with the
appointment of counsel. Here, the court found that
the basic procedures used by the Family Court
were fundamentally fair: Petitioner was afforded an
evidentiary hearing at which he was permitted to
state his case for visitation at length; the issue was
not complicated, no expert testirnony was required
to resolve petitioner's application and the
respondent, petitioner's ex-wife, -was not
represcnted by counse!. Under those
circumstances, neither the New York nor the
Federal Constitution require appointment of
counsel.
Note: I/the lJJNe is om ofterminationlfjprllVntal
r{ghtJ as oppoJed to lJiJittltiofl, hou.Jel.J(;l; the ('()ttJt is required
to "ppoint coun.rel to repreJent the p"Tent whose parental
righff might he terminated.

Sentence Computation: Arrest and Conviction
on New Charge While on Temporary Release
Counts as Absconding
Two recent cases addressed the question of
whether an attest on a new charge while on
tClnporary release interrupts the service of the
sentence that was being served when the attest
occurred. In both cases, the inmates lost.
The questions atise under Penal Law
§70.30(7). That section is titled: "Absconding
from temporary release or furlough program," It
provides that when a person on temporary release

"fails to return" to his facility at or before the
time prescribed for his rerurn, "such failure shall
interrupt the sentence and snch interruption shall
continne until the return of the person to the
institution in which the sentence was being
served." It also provides thar any time served in
custody after the interruption of the sentence,
that is based upon an attest on another charge,
\vhich culminates in a conviction, tna}' be credited
to the original sentence. In such cases, however,
"the ereelit allowed ,rhall be litm/cd to the pottion olthe
time Jpent in cu.rtody tlwt exaerlJ the period, term or
tl1tl'~1J1Um term Ifj" impn~rontJ1ellt impoJwl for Jud,
cOI1l)ictiOll." Penal Law §70.30(7)(c) (emphasis
supplied).
In Matter of Maccio v. GOOld, 756
N.Y.S.2d 412 (Sup. Ct. Alb. Co. Feh. 25, 2(03)
petitioner, an inmate, failed to return from his
temporary release program after being arrested in
Nassau County. He was subsequently sentenced
on the Nassau County charges to one year and
thirry days.
He served approximately eight
months, and was returned to DOCS eight days
after his county sentence ended. I-Ie argued that
since he was involuntarily held in the Nassau
County jail, he did not "abscond" from
ten1porary release and, therefore, his state
sentence should not have been interrupted while
be was serving his definite sentence in the Nassau
County Jail. Furthermore, he argned, he had
been found not guilty of absconding at his
disciplinary hearing.
The Court found that Penal Law
§70..30(7) was nevertheless applicable:
"Petitioner1s conduct of being attested on
another crin1inal charge which cuhninated in a
conviction falls squarely into the category of
behavior defined by Penal Law §70.30(7)(c) which
limits any jail tin,e credits to the portion of time
spent in custody that exceedr the period, term or
maximum term of imprisonment imposed for
such conviction. Petitioner spent eight months
incarcerated in the Nassau County Jail upon his
convictions there. Accordingly, this Court holds
and determines that respondent has correctly
r-efused to credit petitioner with any time served
from April 16, 2001 to December 10,2001." 'fhe
Court went 011, ho\vever to award petitioner
cr-edit for the eight days he spent in local custody
after his county sentence ended, since that tinll~

Pro Se Vol. 13 No.3 Page 13

did exceed "the period, term, or h1axllnutn term of
imprisonment imposed" by the County Court.
In People ex reI. Pughe v. Parrott, 302
A.D.2d 823, _
N.Y.S.2d_ (3d Dep't 2(03) the
inmate tfied a different tack on the same problem:
Pughe was participating in a work-release program
when he was arrcsted on federal charges. That
arrest led to a federal conviction and a 162-month
federal sentence. After serving 89 months he was
returned to state custody in 2001. The state recomputed his sentence, refusing to creelit him with
any of the time that he had served on the federal
sentence, pursuant to Penal Law § 70.30(7)(e).
Pughe sued. He argued that absconding from
temporary release required an intentional act and,
since he had not intended to abscond, §70.30(7)
should not apply to him. He found support for
this argument in the twelve-year-old case of People
ex rel Hammer v. Keane, 143 Misc.2d 132, ajf'd171
A.D.2d 895, Iv denied 78 N.Y.2d 863. In that case,
the Court found that because the title of §70.30(7)
refers to absconders, and because absconeling
requires an intentional act, it e1id not apply when
someone was arrested on new charges.
The Court rejected both Pughe's argument
and the twelve-year-old precedent. While the
heading of the statute may help clarify an imprecise
provision it may not alter or limit the effect of
unambiguous language in tlle statute itself. Here,
the Court held, the language of tlle statute apphes
unatnbiguously to anyone who "fails to rcturn"
hom temporary release, regardless of whether the
failure was intentional.
Moreover, it found,
subsection (c) of the statute plainly reflects the
Legislature's intent that inmates absent from
tcmporary release not receive credit against their
sentcnces for titnc served upon convict.ion of a
new charge. Accordingly, it concluded, §70.30(7)
"unambiguously provides for sentence interruption
whenever a person on temporary release fails to
return regardless of whether the failure is
intentional."

2d Circuit Addre88es Retaliation Claims
Prisoners frequently allege that some action
taken againsr them by a prison official, such as the
writing of a nus behavior report, was actually in
retaliation for their exercise of a constiturionally
protected right, such as the filing a grievance.

Retaliating againsr an inmate for the exercise of a
constitutionally protected right is illegal, and may
be grounds for a lawsuir against the prison official
accused of taking dle retaliatory action. Courts,
however, treat such claims "with skepticism and
particular care," because "virtually any adverse
action taken againsr a prisoner by a prison official
- even those orherwise not rising ro the level of
a constitutional violation [rhemselves] - can be
chatacterized as a constitutionally ptoscribed
retaliatory act." Dawes v. Walkcr, 239 F. 3d 489
(2d Cir. 20(1).
Consequently, to survive a motion to
dismiss a retaliation claim, an inmate asserting the
clait111nust advance "non-conclusory" allegations
rhat (1) that the speech or conduct at issue was
protected, (2) that the defendant took adverse
action against the plaintiff, and (3) that there was
a causal connection between the protected
speech and adverse action. Dawes, id, ar 492.
To prove thc claim, tlle inmate bears the burden
of showing rhat his constitutionally protecred
conduct was a "substantial" or "nlotivating"
factor in the adverse action of the prison officials.
The burden then shifts to rhe officials. If tbey
can show that the same action would have been
taken even absent a retaliatory motive, then the
inmate will lose a motion to dismiss.
Two recent cases from the Second Circuit
Court of Appeals illustrate retaliation claims.
One of the claimants was successful, tlle other
was not.
In Gayle v. Gonyea, 313 F.3d 677 (2d.
Cir. 2(02) the plaintiff, an inmate at Bare Hill
Correctional Facility, claimed that after he wrote
a letter to the Superintendent ro complain ahout
an incident which had occurred the previous day,
in which a prison vehicle had allegedly run over
another inmate, he was interviewed by the
defendant, Captain Gonyea. He was later served
with a misbehavior report, written by Gonyea,
charging him with participating in "actions
detrimental to the facility." The basis for the
charge, according to Gonyea, was that, during thc
interview, "Gayle. .. told me he was an intnate
advocate against staff racisnl and misconduct. ..
[He] admitted to me that he had no personal
knowledge of the incidenr hut he was telling
other inmates in population to write complaints
to Albany and the Superinrendent on the matter.

Pro

~;c

VoL 1.1 No. _) Page 14

. IHe] stated inmate action would be the only
way to make people aware of the problems with
staff at Bare Hill. Gayle threatened inmate unrest
and people getting hurt. Gayle stated he advocated
inmates and officers taking off their shirts and
fighting to solve their disagreements. Gayle stated
that he advises other inmates to file lawsuits and
write complaints against staff at tlus facility. Gayle
stated he would continue to he the facility [sic]
biggest problem until he got transferred."
Gayle was found guilty at his disciplinary
hearing. After an administrative appeal, the hearing
was reversed, but not until Gayle bad served his full
tetm in SHU. Gavle
bww,ht
a lawsuit in federal
.'
C>
court charging Gonyea with having written a false
tnisbehavior report 1n retaliation for his
constitutionally protected complaints to the
Superintendent. Defendants moved for summaty
judj.,'tnent, alleging that the complaint failed to state
a claim. The lower court granted their motion but
the Court of Appeals reversed. The Court found
that Gayle had submitted sufficient evidence
relevant to his burden of ptoof to at least: bring his
claim to trial. There was no question that: the First:
Amendment ptotected his lettet to the
Superintendent.
He alleged that: Gonyea's
misbehavior report was ftled in ret:ahation for his
letter. That allegation was sL'pported by at: least:
enough circumstantial evidence that a reasonable
jury could conclude that he was right: The
misbehavior report was written shortly after the
complaint was filed; it arose from statements made
during a conversation about the gnevance;
Gonyea's testimony at the disciplinary heating
failed to support the charges in in'portant respects
and was denied by C;ayle in other respects and tbe
hearing had been administratively reversed. The
Court particularly noted that Gonyea's testimony
that Gayle had stated that "he would continue to
be the Facility's biggest problem, until he gets a
transfer" did not describe any conduct prohibited
by the rule Cayle was charged with violating, but
tne-rely indicated that, in sonIC vague sense, (_~aylc
was planning to be a pain in the neck. All of tIus,
the Court found, could lead a jury to conclude that
Gayle "intended to accomplish that end by further
and more frequent protected activity rather than
any violation of prison tulcs and that C;onyca's real
motive [in writing the misbehavior report] was to
prevent such additional protected activity."

In Davis v. Gootd, 320 F.3d 346 (2d Cir.
2003) tl,e plaintiff stated that after he 6led a
grievance against seve tal facility doctors, the
doctors tetaliated against him by, among otller
tllings, calling hinl "stupid," and by discontinuing
his high fiber diet. In this case, the Coutt
concluded that the plaintiff had failed to state a
retaliation clainl. Although, as in Gayle, there was
no question that plaintiffs conduct in filing a
grievance was protected activity, the Court found
that the insulting at disrespectful comments
allegedly made by the doctors did not rise to the
level of retaliation. "Only tetaliatory conduct that
would detet lan1 individual of otdinaty 6tHlneSS
from exercising his or her constitutional rights
constit.utes an adverse action lin a retaliation
claim]."
The allegation that the doctors
discontinued Davis's medically ptesuibed diet
multi rise to the level of constitutionally actionable
adverse action, however plaintiff could not show
that there was a causal connection between that
action and his complaints about the doctors. In
fact, the doctors had restricted his diet bejim he
had filed his grievances. Davis' claim that the
doctors had acted because they had heard about
a prior lawsuit he had filed in another facility
concerning Ius medical care, unsupported by any
evidence, was insufficient to support a
connection between the dietary resrrictions and
the protected activity.
Under those
circutnstanccs, the C(mtt found, plaintiff had not
stated an actionable clairl1 [C)t retaliation, and his
claim was properly dismissed.

DISCIPLINARY ROUNHUP
The good, the bad and the ugly, from this
quarter's disciplinary cases:

Contraband : Confidential
Establishes Possession

Infomwtion

In the Matter ofWeavet v. Goord, 754 N.Y.S.2d
67 (3d Dep't 2003)
Petitioner, an inlnate, challenged a
disciplinary disposition finding him guilty of

Pro Se Vol. 13 No.3 Page 15

smuggling and unauthorized possesslOn of
controlled substances based upon a confidential
investigation which allegedly disclosed that he had
been selling drugs. Petitioner argued that since no
controlled sl1bstanccs were found in his possession
there was insufficient evidence to find him guilty of
the charges. The Court held, "[i]t is well settled,
however, that substantial evidence may consist of
confidential information relayed to the hearing
officer so long as the officer has made an
independent assessment to determine that the
infotmation is 'reliable and credible'. Our review of
the in (lImOnl lna terial contained in the record
before us discloses t11at the Hearing Officer
independently assessed the reliability and credibility
of the confidential in formation before relying upon
it as evidence of petitioner's guilt" (citations
omitted) .

Contraband : Inmates Found to Possess
Contraband
Matter of Black v. Goord, 753 N.Y.S. 2d 770 (3d
Dep't 2003)
Petitioner Black was found guilty of
violating various prison disciplinary rules including
possession of drugs. Two misbehavior reports
charged that he "was seen in the shower area acting
suspiciously and, \vhen ordered to leave. , .. was.
observed trying to stuff something in the shower
drain. After he finally complied with an order to
step away from the area, two pieces of rubber
glove, rolling paper and an unknown substance
later identified as marilmana, were uncovered in the
area and placed in a bowl. \1{Ihile being escorted
out of the area, which contained approximately 25
other tnlnates, petitioner grabbed the contents of
the bowl from the correction offieer, crumpled it
and threw it. Mr. Black argued that he was not
actually found in "possession" of the tl1arihuana
and therefme could not be found guilty of
possession of drugs. The Court rejected this
argument, holding that "the testimony regarding his
suspicirH.lS behavior and that he was the only one in
the shower area gives rise to an inference of
possession even though access to the area may not
have been exclusive."

Matter of Clark v. Selsky, 754 N .Y.S.2d 607 (3d
Dep't 2003)
Petitioner Clark was found guilty of
violating disciplinary rules prohibiting the
unauthotized possess!<)!l of controlled
substances. The record established that he had
been released from his cell in order to distribute
water to the othct innlates. Afte,r returning to his
cell, he asked to be released again because he had
forgotten to return the water bueket. Prior to
letting petitioner out, a search of ti,e slop sink
area revealed a fInger of a plastic glove containing
16 packets of heroin, which the conection ofticer
confiscated. Petitioner was then released from
his cell, searched the sink area and returned to his
cell.
Petitioner claimed that he could not be
found guilty of possessing the heroin because
other inmates also had access to the slop sink
area. The conection officer who audlored the
misbehavior report testified, however, that the
area had previously been searched and that
petitioner was the only inmate who had access to
it ptiot to the narcotics being found. The Coutt
found that this gave rise to a reasonable inference
of possession by the petitioner since the arca was
within his control.

Direct Order,. : Inmates M1I8t Follow Them
Matter of Davis v. Goord, 753 N.Y.S.2d 409 (3d
Dep't 2003)
Petitioner Davis was found guilty of
violating the disciplinary rule prohibiting inmates
from refusing a direct order, after he was charged
with having refused to comply with a correction
officer's otder to enter his newly assigned, double
bunked cell. Petitioner contended that his tefusal
to obey the order was justified because it had
been his understanding that he was not eligible
for double bunking. The Court found, however,
that it is well settled that inmates are not
permitted "to decide fot themselves which orders
to obey and which to ignore" (dt/Il",f!, 1\fatter of
Rivera v. Smith, 63 N.Y.2d 501). "To avoid
sanctions, an inmate must comply with a direct
order, even if he or she perceives it to be
11l1proper. Redress may be sought theteafter

Pro Sc Vol. 1-".. No. -".. Page 1(,

through the grievance procedure established by the
Department of Conectional Services."

Documentary Evidcnce : Denial of Right to
Present Evidence Is Harmless Error
Matter of Vidal v. Burge, 755 N.Y.S.2d 692 (4th
Dep't 20(3)
Petitioner Vidal challenged a 'fier II hearing
111 which he was found guilty of violating
disciplinary rule 106.10 (refusing a direct order);
107.11 (harassment); 112.22 (obstruction of
visibility into cell or room) and 118.30 (untidy cell
or person). At the hearing, petitioner requested a
copy of a complaint that he had eadier filed against
the author of tbe misbehavior report, as well as a
copy of the policy and procedure memorandum
governing cell searches. The Court acknowledged
that petitioner had the right to submit relevant
documentary evidence and concluded that the
Hearing Officer ened in denying his requests. The
Court found, however, that the etror was harmless:
"The Hearing Officer credited petitioner's
testimony with respect to the complaint flied
against the author of the misbehavior report, and
the policy and procedure manual was not
exculpatory."
I'mdia poilltet:· lV'bm cballet{gir{g (J dzsaplif/(Jry
bet1ri'\g 1111 p'¥Jcedrlrtzl,gmtlrrdJ, it is importi/llt to .rbO/v bO/v
i/II allegedpmadunJl mw pZY1Hliiedyotlr ability to dejerrd
J!OJlrfc!/ OthemJiJe the romt IJJf:'Y dirJJ1l~rJ~yotlr claim, t1J in
the a!J()J}c /JPO C(lses, OJ] the ,ground that the enor U!fJJ
J

1'llal7JtJeJS. "

Drug Testing: Hair Test Doesn't Overcome
Urinalyids Test
Matter of Mathie IV v. Selsky. 755 N.Y.S.2d 340
(3d Dep't 20(3)
Petitioner Mathie IV was found guilty in a
disciplinary hearing of using a controlled substance
based on tbe positive results of two urinalysis tests.
Aftet his disciplinary hearing he obtained a forensic

misbehavior repon, the positive results of the
urinalysis tests and the testimony of the
correction officer who obtained and tested the
specimen, constituted substantial evidence to

support the determination, notwithstanding the
new evidence.
The Court also rejected
petitioner's allegation that the disciplinary charges
were fabricated in retaliation for his "weUpublicized success as a stock trader and human
rights litigant." That allegation, the Court held,
merely raised a question of credibility which the
hearing officer was free to resolve against the
petitioner.

Drug TestilJg: No Excuse Found for Failure
to Provide Urine Sample
Matter of Cruz v. Goord, 754 N.Y.S.2d 597 (3d
Dep't 2003)
Petitioner Cruz was found guilty of
violating urinalysis-testing procedures after he
adinittedly failed to provide a urine sample within
three hours. He. contended that he was wrongly
found guilty because his inability to produce the
ur111e sample was caused by Indocin, a
prescription anti-inflammatory medication that
can cause fluid retention. The Court found this
contention to be controverted by petitioner's
testimony at the hearing durmg which he
conceded that the medication does not actuaUy
prevent him from urinating and that he had, in
fact, urinatcd several times on the day in question.
In the alternative, petitioner argued that shy
bladder syndtome contributed to bis inability to
producc a urine specimen. He submitted no
evidence, however, to support his contention that

he suffered from this condition, rendering it a
question of credibility that, the Court held, was
properly resolved by the hearing officer.

Drug Testing: Wrong Date on Urinalysis
Form Found Hilrmless Error

hair analysis fronl an outside laboratory at his own

Matter of Hilts v. Selsky, 755 N.Y.S.2d 333 (3d
Dep't 2003)

expense. The results of the hair analysis were
negative but DOCS refused his request to reverse
the charges. Petitioner appealed. The Court
upheld the guilty finding, holding that the

Petitioner was found guilty of
unauthorized use of a controlled substance aftet
a urinalysis test proved positive for marijuana.

ProSe Vol. 13 No.3 PaQc 17

He challenged the determination asserting that the
incorrect date stamped on some of the
documentation relating to the testing should result
in a reversal. The Court held that "[a]n inadvertent
error that resulted in the incorrect date being
stamped on some of the documentation relating to
the urinalysis tests does not provide grounds for
annulment. Therc has been no showing that this
clerical error had any impact on the accuracy of the
test results or that the defense of petitioncr1s case

was in any way ptejudiced theteby." The petitioner
also asserted that since the hearing officer signed
the form authorizing the testing, he should be
precluded from presic.hng at the hearing. ·Ine
Court tejected this atgumcnt, holding tha t
"fn]othingin the tdevant tegulations suppotts fthe]
contention."

H:uassment Violation : No Proof of Intent
Needed
In the Matter of Van Bramer v. Selsky, 2003 WL
756054 (3d Dep't 2(03)
Petitioner was found b",ilty of harassment,
in violation of disciplinaty rule 107.11. The charge
telated to an alleged attempt by the petitioner to
"initiate a pCrS(Hlal relationship with a fertlale
employee in a college registrar's office by writing
her an unsolicited letter that was disturbing to her."
The Court found that, "[a]lthough petitioner
characterizes his letter as nothing more than a
flirtatious effort to obtain a pen pal, our teading
finds repeated use of sexual innuendo, requests for
personal information and intimate details, and a
suggestion of in-person contact in the ncat future."

This, the Court held, was sufficient to support the
disciplinary charge.
"Petitioner's letter can
reasonably be read as annoying and alarming
because the female employee became aware of

Notice: Ambiguous Misbehavior Report
Deemed Suflicient
In the Matter of Hamilton v. Selsky. 755
N.Y.S.2d 518 (3d Dep't 2(03)
Petitioner, an ll11natc, was charged \vith
cteating a disturbance. While watching television
coverage of the events of Septcmber 11,2001, he
allegedly made derogatory comments abont "the
Americans," indicating that "they got what they
deserved." A correction officer observed that the
remarks "agitated other inmates whose family
members were among those feared to have been
victims of the attacks and exacerbated the already
tense atmosphere 111 the facility, thereby
threatening the order of the facility."
At the disciplinary hearing, the watch
commander testified that the "reporting officer
had notified him of the incident shortly after it
occurred, expressing his concern over the
potentially disruptive impact of petitioner's
words." The evening watch comulander gave
additional testimony, stating tllat he had been
informed when he came on duty that anti·
American statements had been made by some
inmates, exacerbating the tense atmosphere at the
facility. In response, he had directed that the
inmates be identified and served with
misbehavior reports. The Court held that this
testimony, in conjunction with the tllisbehaviot
report, provided sufficient evidence to support a
determination of guilt. The Court rejected
petitioner's allegation that the misbehavior report
was so anlbiguous as to require annulnlent,
holding that, "[t]he factual allegations contained
therein were sufficiently detailed to apprize
[petitioner] of the specific incident and charge
filed against him, thereby enabling him to ptepare
a defense."

petitioner's rape conviction.

Petitioner's contention that he lacked the

Inmate Can't Claim Lack ofNotice

requisite intent to annoy or alarn1 is unavailing) for

such intent is not an element of the charged
misconduct.
Given the deference this Court
affords to the interpretation of disciplinary rules by
the Commissioner of Correctional Services any
doubt in this regard must be resolved in the
Conl1nissioner's favor."

Matter of Taylor v. Poole, 753 N.Y.S.2d 573 (3d
Dep't 2(03)
Petitioner Taylor was convicted of having
violated disciplinary rules after a frisk of his cube
revealed a treatise written by the Black Panther
Party that encouraged African Americans to offer

Pro Se Vol. 13 No_ 3 Pal!l' 18

armed resistance to governmental authority. The
rule he was convicted of having violated,
disciplinary rule 105.12 (7 NYCRR 270.2 (b][6][iiiJ) ,
ptohibits intTIates frotn possessing "organizational
, , , . materials/' and it defines an "organization" as
"any gang or any organization ,vhich has not been
approved by the deputy conunissioner for program
services." Petitioner argued that he could not be
found guilty of dus rule violation because he had
never been provided with the 1998~revised edition
of the "Inmate Behavior Rule Book," which was
the first edition to contain the rule. Therefore, he
c1ainlcd, he lacked notice of its contents. However,
the court noted, petitioner conceded that a copy ()f
the tu1c book was readily available in the facility
library, "thereby belying [his] claimed lack of notice
()f its contents."

SubstantialEvidence: Evidence Is 1J,sllfiicient
to Support Correspondence Charge
Matter of Collins v. Pearlman, 302 AD.2d 382 (2d
Dep't 20(3)
Petitioner Collins challenged Ius conviction
of disciplinary chatges on the grounds that the
findings were not supported by substantial
evidence. The misbehavior report stated that a
package addressed to him contained legal
docutnents belonging to another innlate. The
return address on the package belonged to an
unidentified thitd party. Petitioner was charged
with having violated facility correspondence
procedures and with ptoviding unauthorized legal
assistance to another intnate, At a Tier 11 heat,
petitioner testified that he had provided authorized
legal assistance to the inmate wlUle they were both
at the same facility together but had lost contact
with him when he was transfened out.
The hearing officer found him guilty of
both charges and sentenced hin, to 30· days
The Court
keeplock and loss of privileges.
reversed. Although a misbehavior report by itself
can constitute substantial evidence of an innlatc's
tnisconduct, the report tnust be "sufficiently
relevant and probative" to constitute substantial
evidence. In MatteI' of Hendrix v. W'illiams, 684
N.Y.S.2d 730 (2d Dep't 1998) the court had heJd
that an inmate's receipt of correspondence from
another inn1ate's aunt does not violate any ()f the

policies and ptocedures governing the inmate
correspondence progran1 and that his possession
of legal documents belonging to another inmate,
without more, did not establish that he provided
unauthorized legal assistance to another inmate.
The evidence presented in this case ,vas 110 nlote
than that presented in Hemhix.

Witnesses : Il1milte Has No Right to Be
Present for Hearing Ofiicer's IVitnesses
In the Matter ofChastine v. Sclsky, 755 N.Y.S.2d
330 (3d Dep't 20(3)
In this case, the petitioner was found
guilty of flghting after a guard observed him in a
fistflght with another inmate in the yard. The
petitioner originally raised an issue of suhstantial
evidence so the case ,vas transferred to the
Appellate Division pursuant to CPl J\ Atticle 78,
but once there, the petitioner abandoned that
claim. Tbe Court, however, retained the case in
the interests of justice and judicial economy and
addressed the underlying alleged procedural
errors,
The petitioner challenged the heating on
the grounds that he was not allowed to be
ptesent during a telephone interview with the
eoneetion offlcer who had autbored the
misbehavior report. The Coutt limnd this
atgument unavailing. The Court held that,
"[aJlthough an inmate has the right to be present
during the testimony of any witness whom tbe
inmate has called to testify, in this instance, the
reporting officer was called as a witness by the
Hearing Officer; hence, petitioner had no right to
be ptesent." (citations otuitted)

LONG TERM ADMINISTRATIVE
SEGREGATION

Prison officials have the authority to place
inrnatcs in ST-IU on the basis of an adn-unistrative
segregation recomnlcndation tTIade pursuant to
7 NYCRR §301.4. Whether the recommendation
is carried out: is decided at a hearing, which is
conducted much hke a Tier III disciplinary

Pro Se ·Vol. B No.3 Page- 19

hearing. The question to be decided at the hearing
is whether "the llunatc's presence in general
population would pose a threat to the safety and
security of the facility." 7 NYCRR §301.4(b). If
the hearing officer determines that standard has
been met, the inmate can be placed m
administrative segregation for an unspecified period
of time.
()ften, athl1inistrative segregation is used to
confme an inmate for only short periods of time. 7
NYCRR §3lll .4(e) provides that, when appropriate,
an lnlnate in adtninistrative segregation will be
"evaluated and reconln1cndcd f()t ttansfer to a
facility ,vhere it is detcttnined the inlnate n1ay be
progranuned into general population." However,
in some cases, individual inmates have been held in
adtninistrative segregation over long pcric)ds of
time. The U.S. Supreme Court has held that while
it is constitutional for prison officials to place
inmates in adn1inistrative segregation, they "fl111fit
engage in SCHne sort of periodic review of the
confinement.... " Hewitt v. Helms, 459 U.S.460,
477 n. ') (1983). Lengthy administrative segtegation
is unconstitutional if prison officials fail to do the
periodic revicw that could document the need, or
lack of need, for continued (lchninisttative
segregation.
In scHue cases, ilunates have challenged
administrative segregation by bringing §1983
damage actions in federal court, on the ground that
either prison officials failed to conduct the rC<luired
periodic reviews, or that: the reviews that were
conducted were a sham. In McClaty v. Kelly, 87
F.Supp. 2d 205 (\V.D.N.Y., 2000), a/td 237 F.3d
185 (2d Cir. 2001) a jury found that prison officials
had hlled to conduct any tneaningful review of an
iluuate's c()ntinuing need for achninistrative
segregation, and awarded the inmate substantial
111011(;)" dan1ages as c0111pensation for the four yeats
he was held in administrative segregation; the
reviews that \vere conducted were found to be a
sham. Sinlilarly, in Ciano v. Kelly, 2000 WL 876855
(\'VD.N.Y. 20(0) the Coutt awarded compensatory
damages on the ground that: the required periodic
reviews of the need for continued adtuinistrative
segregation were a shall1.
In the Ciano case, the Court went on to
address the adn1inisttative segregation review

process in more detail. The Court held that
where the reasons for administrative segregation
change after the completion of the hearing, the
inmate must be informed of the new reason and
given an opportunity to respond to the new
reason.
In Ferguson v. Coord, PLS represented
an inmate in an Article 78 proceeding challenging
the adtninistrative segregation review process, on
the ground that the administrative segregation
review process, as defIned in the regulations at
the time, did not give an inmate any opportunity
to learn the teasons for adtninistrative
segregation, or to challenge those reasons, after
the initial administrative segregation hearing. In
parti.cular, the regulations did not even require
that an inmate be told the reasons for
administtative segregation when the reasons
changed, as was required, in dicta, hy the Court in
Giano. In the Fel'guson case, PLS argued that
DOCS should tell an inmate why he or she is
being held in administrative segregation whenever
the reasons change.
In November 2002, wIllie the Ferguson
case was pending, DC)CS issued new regulations
whieh changed the administrative segregation
review process, as set forth in 7 NYCRR
§301.4(d). There are two main changes. The fIrst
change affects the frequency of administrative
segregation reviews. Under the old regulation, an
inmate placed in administrative segl'egation would
have his or her status reviewed every seven (7)
days for the fust two months, and every thitty
(30) days thereafter. The new l'egulation spreads
out the time between reviews. Under the new
regulation, adtninistrativc segregation reviews
occut every sixty (60) days.
The second change in the achninistrative
scgregatic>t1 review process gives inmates soh1e
input in the review process. Under the old
review process, 3n administrative segregation
review would be conducted and a fot111 would be
fillcd out every thirty (30) days. The inmate was
not advised of the reasons for continuing
adll1inistrative segregation, and had no
opportunity to challenge the reasons or d,e need
for conti.nuing administrative segregation. Under
the new regulation, a three-member facility

Pm S,"Vol. 13 No.3 Pag," 20

committee, with one member each from the
facility's counseling staff, a security supervisor, and
member of the facility's executive team, reviews the
inmate's conduct over thc past sixty (60) days and
then issues a written rccol11111cndation to the
superintcndent to continue or end adtninistrativc
segregation, supported by reasons.
If the
superintendent's decision is to continue
adlninistrative segregation, then the i.111nate is to be
informcd of the rcasons that are the basis of the
decision to C()ntinuc ac.hninistiat1ve segregation, and
the inmate tnay then subtnit a \vritten response.
The intnate'swrittcll response will be considered as
part of the ncxt sixty (60) day review.
'The new regulations for periodic review of
administrative segregation are by no means ideal,
but they are a big improvement over the old review
process since an inmate will now be told why he or
she is being kept in administrative segregation, and
will have a chance to subtnit a writtcn response,
challenging the reasons for administrative
segregation.

THE PRISON LITIGATION REFORM
ACT (PLRA) : BEYOND EXHAUSTION

The enactment by Congress of the Prison
Litigation Reform Act (PLRA) in 1996, has made it
much more difficult for prisoners to file lawsuits in
federal court about the conditions of their
confinement. The PLRA has mauy patts to it.
Probably the most significant part of eI,e PUlA
requites that, before you file a complaint in federal
court about something that happened to you in
pnson, you first "exhaust" all available
administrative remedies. (JI'e, 42 U.s.c. § 1997e(a)).
The exhaustion requiremcnt has raised numerous
questions for New York State i111nates, such as
what administrative retnedies ate "available" in
New York and what exactly does it mean to
"exhaust" thetn? Lo\ver federal coutts exal11ining
these 'Iuestions have differed widely on the
answers, depeuding on the facts of the case before
them. The December 2002-edition of Pm Je took
a detailed look at some of the still-umesolved

questions regarding exhaustion and we reported
in out March 2003-edition eI,at tl,e Second.
Circuit Court of Appeals has requested counse! in
five pending cases to resolve some of these
questions. (prisoners' Legal Services and eI,e
Prisoners' Rights Project of the Legal Aid Society
will represent the inmates in four of those five
cases.) Questions aside, the safest course will
always be:

File a grievance on any issue about which you
think you might later want or need to file a
federal lawsuit and appeal that grievance
through all available levels of appeal.
You should obtain a copy of yout facility's
grievance policy and follow it as closely as you
can.
Exhaustion, however, was not the only
part of the PUlA. This article looks at three
additional aspects of the PLI<.A of which you
should be aware befote you file a lawsuit about
ptison conditions in federal coutt.

I.

Filing Fees (28 U.S.C. § 1915(b»

Under the PLRA all ptisoners filing a
lawsuit in federal court must pay the federal court
filing fees in full. You can still file as a "poor
person" (in forma pm/peril), however this n1eans
only ellat the cOUt! will allow you to pay the filing
fcc ovet time, through monthly installments from
your prison C0111hllssary account, rather then
paying the full fee up front. The filing fee will
not be waived.
A complex statutmy formula requires
prisoners filing injorma jJ<1ttperiJ to pay an initial
fee of 20 percent of the greater of the prisoner's
average balance or the average deposits to the
account for the preceding six months. After the
init.ial payment, the prisoner is to pay montbly
instalhnents of 20°;() of the income credited to the
account in the previous month until the fee has
been paid. This procedure requires the prison to
cooperate adn1il11stratively in the process for
assessing the court's statutory fee.
(The current filing fcc for instituting a

Pro Se Vol. 13 No.3 Page 21

civil action in the Northern, Western and Southern
Districts of New York is $150.00.)
II

Three Strikes and You're Out (28 V.S.c.
§ 1915(g)

Another ptovision of the PLRA requites
that each lawsuit or appeal you flle that is dismissed
because a judge decides that it is frivolous.
malicious, or does not state a proper claim count as
a "strike.» After you get three strikes, you cannot
ftle another lawsuit in forma patrperis - that is, you
cannot ftle unless you pay the entire court flling fcc
up-front. The only exception to this rule is if you
are at risk of suffering serious physical injury in the
immediate future. A court will evaluate whether
you are in "ilnnUnent danger" based on the time at
which you flle the lawsuit, not the time at which
the incident which gave rise to the lawsuit
oCClltted. MaW, v. McGinnis, 293 F.3d 559 (2d Cit.
2(02).
III

Physical Injury Requirement (42 V.S.c.

§ I997e(e»
A third provision of the PLRA provides
that you cannot file a lawsuit seeking compensatory
damages for mental or emotional injury unless you
can also show physical injury.
Courts have
generally intetpreted tlus provision as applying only
to money damages. It would not, for instance,
prevent you from filing an action for injunctive or
declaratory relief, even if the only injury you could
claitn was rncntal or etnotional. Other courts have
held that both nominal damages (i.e., an award of
$1.00, intended only to recognize that you were
wronged but not to compensate you) and pUlutive
damages (damages intended to punish the
defendants for bad conduct rathet than
compensate you for an injury) ate still avatlable
even when compensatory damages ate barred by
the physical injury requirement. Thompson v.
Catter, 284 F.3d 411 (2d Cit. 2(02) (Likewise, a
claim for injury to propetty may still be maintained,
even without physical injury. Id.)
Courts have split on whether a claim fot a
violation of a constitutional right is really a Clainl
for mental or emotional injury in the ahsenee of an

allegation of a resulting physical injury (or injury
to property). For example, in one case, a
prisoner complained that ptlson policies
prevented him from attending the services of Ius
religion. in violation of the First Amendment.
The court held that he could not pursue his claim
for compensatory damages, assuming that the
injury for which he sought compensation was a
mental or emotional one. Allah v. AI-Hafeez, 226
F.3d 247 (3d. Cit. 2(00). In another case, a court
held that an inmate's complaint about being
exposed to unconstitutional ptison conditions -a
ftlthy cell - were barred absent allegations of
physical injury. Harper v. Showers, 174 F.3d 716
(5'h Cit. 1999) These rulings are questionahle as
other courts have held that Fitst Amendment
claims are not claims for a mental or emotional
distress and are thus not barred by the physical
injury requitement. Rowe v. Shake, 196 F.3d778
(7'h Cir. 1999); Canell v. Lightner, 143 F.3d 1210
(9'h Cit. 1998). One could argue, for instance,
that the injury suffered hy inmate Allah - not
being able to go to church - was a concrete
deprivation of his first amendment right to
freedom of religion that took place in the real
world, not just in the plaintiff's head. Likewise,
with respect to the clainl about the filthy cell, it
could be argued that any condition that rises to
the level of being unconstitutional- i.e., one that
delues the "nunitnal civilized measure of life's
necessities" @ilson v. Seiter, SOl U.S. 294
(1991» - imposes mOte than mete "mental or
emotional" injury and, thus, should not be batted
by the physical injury re'luitement.
Courts differ, too, over what constitutes
suffIcient harm to qualify as a physical injuty.
One court has held that a bruised ear does not
qualify as a physical injury. Sigler v. Hifhtower,
112 F.3d 191 (5'h Cit. 1997). The Second Citcuit
has adopted the view that the injury "must be
more d,an de minimiJ, but need not be significant
to ovetcome the physical injuly requirement.
Liner v. Goard, 196 F.3d 132 (2d Cit. 1999). The
court in that case, held that "alleged sexual
assaults" (also descrihed as "intrusive body
searches") "qualify as physical injuries as a mattet
of comlnon sense" and "would constihltc more
than de IJJitlimiJ injury."

Pro Sc Vol. 13 No.3 Page 22

All of these provisions - the exhaustion
requirement, the filing fee, the "three strikes rule"
and the physical injuty requirement - were
intended to make ir more difficult for inmates to
file lawsuits in federal court. As you navigate these
barriers it will be helpful to at least know and
undetstand the rules.

TO NOTARIZE OR NOT TO
NOTARIZE, THAT IS THE
QUESTION!

contents of the docutnent are true. Ttunates
often have documents notarized that do not need
to be notarized and sotnetitnes fail te) obtain a
notarization when one is necessary. 'I'he purpose
of this artiele is to give inmates guidance on when
a notalY public should be requested and what
type of notarization should occur. The following
includes excerpts of a publication from the
National Notary Association website
(www.nationalnotat:y.org)whichanswersmanyof
the tnost comnlon questions about the function
of a Notary Public and the purpose of having a
dOCU1l1cnt notarized.

What is a Notary Public?
It has been said that "{lut systc111 would
ctumble if people didn't believe in the promise to
tell the trutb." David S. Thun, In the Spirit of
Truth, Nat'l Notaty (Nat'l Notaty Ass'n, Canoga
Park, Cal.), Nov. 2000, at 13 (quoting California
attomey Jason M. Russell). In an attempt to
enhance theit own credibility teganhng
ttuthfulness, intnates often have their signature on
various docwncnts notarized prior to sending those
documents out of the ptison.
Often, such
notarization is not necessary and 11'1ay cause
unnecessary delays in tbe processing and/or
investigation of a cornplaint. PLS has received
numerous letters from inmates who delayed
sending their letters because they were waiting to
bave their slgtHture notatized.
In other
cirCUll1stances, \ve have witnessed intnates who
have rnissed coutt deadlines or who have suffered
significant delays in seeking administrative relief
because, even though notarization was not
necessary, they have waited until their papers were
notarized before sending them out.
\V'hen an individual has a document
notarized, he is merely acknowledging to the notary
that he has signed the dOCUll1ent. If the docutnent
contains a jurat, which is a paragraph that states
that the document has been signed and the signer
has acknowledged under oath that tbe contents of
the docutl1ent ate true, the notarization sitnply
means that rhe signer has told the notary that the

A Notary Public is a public servant
appointed by state government to witness the
signing of itnpottant dOCUtl1cnts and adtl1inister
oaths.

Why are documents notarized?
Documents are notarized to deter fraud
and to ensure they are properly executed. An
impartial witness (the Notaty) identifies signers to
scteen out impostors and to ll1akc SUfe they have
entered into agree111ents knowingly and willingly.

How does a Notary identify a signer?
Genel'ally, the Notaty will ask to sec a
current identification docunlcnt or catd with a
photograph, physical description and signature.
A driver's license, militaty ID or passpott will
usually be acceptable.

Is notarization required by law?
many docutncnts, yes. Certain
affidavits, deeds and powers of attorney may
not be legally binding unless they ate properly
notatized. \V'ith other documents, no. Private
entities and individuals may require notarization
to strengthen the dOCulncllt and to protect it
from fraud.
rOl:

Pro Se Vol. 13 No_ 3 Page 23

Docs notarization make a document "true"
or "legal?"

Where can I report unethical or
unprofessional Notaries?

No. A notarization typically means the
signer acknowledged to the Notary that he or she
sil,'1led the document or vouehed under oath or
affirmation that the contents of the document
we.re true.

Any wrongdoing or illegal activity
should be reported to law enforcement and the
appropriate Notary-regulating state official. In
New York State this would be the Secretary of
State.

Maya Notary give legal advice or prepare
legal documents?

Can a Notary notarize a copy of a birth or
death certificate?

Absolutely not. A Notary is forbidden
from preparing legal documents or acting as a
legal advisor unless he or she is also an attorney.
Violators can be prosecuted for the unauthorized
practice of law, so a Notary cannot answer your
legal questions or provide advice about your
particular docllnlent.

No. A Notary should not certify a copy
of a birth or death certificate. Instead you
should contact the state Bureau of Vital
Statistics or county clerk's office in the county
where the birth occurred. For foreign birth
certificates, you should contact the consulate of
the countq of origin.

Maya Notary prepare or notarize
immigration papers?

Can a Notary notarize an undated
document?

Only a few immigration forms must be
notarized, such as the Affidavit of Support (]134, ]-864), but the U.S. Inunigration and
Naturalization Service (INS) regulations state that
no one may prepare or file another person's
immigration papers unless he or she is an
attorney or a U.S. Department of Justiceapproved "accredited representative. II Notaries
nlaY provide clerical, secretarial or translating
assistance with INS forms as long as they do not
provide legal advice, and then inay notarize these
forms.

If there is a space for a date it should be
filled in with the correct date or lined through
by the document signer. If the document
simply doesn't have a date, it is acceptable to
notarize it.

Can a Notary refuse to serve people?
Only if the Notary is uncertain of a
signer's identity, \.villingncss, mental awareness, or
has cause to suspect fi~aud. Notaries may not
refuse service on the basis of race, religion,
nationality, lifesryle, or because the person is not
a client or Cllsto111er.

Can a Notary notarize a fax or a photocopy?
Yes. 1\ photocopy or fax may be
notarized, but only if it bears an original
signature. That is, the copy must have been
signed with pen and ink. A photocopied or faxed
signature may never be notarized. Note that
some public recorders will not accept notarized
signatures on photocopied or faxed sheets
because they will not adequately reproduce in
microfihning.

Pro Sc VoL 13 No.3 Page 24

Can a Notary notarize a document with blank
spaces?
This is prohibited by law in several states.
Even if not addressed in statute, a prudent Notaty
will skim the document for blanks and ask the
document signer to fill them in. If they are
intended to be left blank, then the signer can line
through them or write N / A.
Does a document have to be signed
presence of a Notary?

III

Can you become a Notary?
A person convicted of felony cannot be
appointed as a notary public. See McKinney's
Executive Law §130 et.seq.
Also, certain
misdemeanors are considercd (lisqualifying.
However, should a person convicted of any crime
obt.ain an executive pardon ot a cett.ificatc of
good conduct from the parole board, he or she
may be considered for appointment.

the

Yes and No. In nlost st.ates, documents
requiring acknowledgments do not need to be
signed in the Notary's ptesence.However, the
signer must appear before the Notary at the time
of notarization to acknowledge that he or she freely
signed for the purposes stated in the document.
An aclmowled\!1nent certificate indicates that the
"
signer personally appeared before the Notary, was
identified by the Notary, and acknowledged to the
Notary that the document was freely signed.
On the other hand, documents requiring a
jurat must indeed be sii,'1led in the Notary's
presence, as dictated by the typical jurat wording,
"Subscribed (signed) and sworn to before nlC ... 11
In executing a jurat, a Notary guarantees that the
signer: personally appeared before the Notary, was
given an oath or affirmation by the Notary, and
signed in the Notary's presence. In addition, even
though it may not be a statutory requirement that
the Notary positively idenrify a signer for a jutat, it
is always a good idea to do so.

In Conclusion
Although having a document notarized
may make you!eel as if it is more "legal" that is
not usually the casc. Thete att~ docUh1cnts,
typically certain types of court documents, that
require notarization and for those documents it is
very irnportant to comply widl the notarization
procedufcs.Howevcr, \vith respect to nlallY
other docutnents, such as letters to your attorney
ot friends ot fatllily ot even adnlinistrative

complaints that you may wish to file, there is no
reason to have those docull1ents notarized; such
a practice unnecessarily wastes tit11C, and
S0t11ctUnes tnoney.

Pro Se is printed and distributed free to
people incarce"ated in New York State
prisons and to N ew York State prison law
libraries through a generous grant from the

New York State Bar Foundation.

EDITORS: .JOEL LANDAU, ESQ., KAREN MURTAGH-MONKS, ESQ. CONTRIBUTOR: .IAMES BOGIN, ESQ.
COpy EDITOR: ALETA ALBERT
PRODUCTION: DAVID BOISVERT
EDITORIAL BOARD: TOM TERRIZZI, ESQ., BETSY STERLING, ESQ., KAREN MURTAGH-MONKS, ESQ.