Vol. 14 Number 1: Winter 2004 Published by Prisoners' I..egal Services of New York

Correctional Association Report Paints Grim Picture ofSHU,
Recommends Changes
The Correctional Association of New York,
a privately funded prison watchdog agency,
recently released a report on disciplinary
confinement in New York, titled Lockdown New
York: Disciplinary CO'?finement in New YorkState
Prisons. The report, based on three years of
research involving 49 site visits to 26 Special
Housing Units throughout the state, as well as
interviews with 258 inmates, presents a grim
portrait of life in disciplinary confinement.
According to the report, harsh conditions in
SHU include solitary confinement or doubleceiling, where two men are confined together for
23 hours a day in a cell measuring 105 square feet.
No programs are provided and simply enduring the
extraordinary degree of idleness becomes one of
the most difficult aspects oflife. Inmates are "cellfed" through feed-up slots in thick metal doors.
Whencver prisoners leave their cells, they are
mechanically restrained with handcuffs and a waist
chain, and leg irons ifthey are considered seriously
violent or escape-prone. To punish inmates who
continue to violate rules in disciplinary
confinement, corrections officials utilize
increasingly punitive "deprivation orders," most
commonly loss ofrecreation, loss ofshowers, and
the use of mechanical restraints (handcuffs and

waist chain) during recreation. The most
severe punishment is the restricted diet, or
a dense, binding,
"loaf." Tht~ "loaf' unpalatable one-pound loaf of a breadlike
"rtid, colltil1lll,d, page 2

Also Inside ...
Boot the SHU - A Message from
the Executive Director
page 4
Inmates Settle Claims Regarding
Rights of Mentally Disabled at
Disciplinary Hearings
page 6
DOCS Ordered to Release
IG Files To Inmate Under
FOIL..

page 16

Pro Se Practice - Serving the Order
to Show Cause
page 22
Sub,'cribe to Pro &1 See back page (or details

rhis project was supported by a grant administered by the New York State Division ojCrimJnal Justice Services. Points ofvii-'W in this
document are those ofthe author and do not necessarily represent the official position or policies ofthe Division o/Criminal JustlC$ Servkes.

Pro Se Vol. 14 No 1. Page 2
...al1ide cOlltillllul.ftv!71 page 1

substance made ofpotatoes, (larrots and flour - is
served three times a day with a side portion ofraw
eabbage for seven days straight, followed by two
days off.
The report cites several specific areas of
concern, including a high prevalence of inmates
with serious mental illness in diseiplinary
confmement as well as the psychological effects of
long-term isolation on even high-functioning
inmates, high ratcs ofsuicide and attempts ofselfharm, overly-long sentences, extremely limited
programming and inadequate recreation facilities,
chronic idleness and, in some facilities, inaccessible
staff and neglected inmates. Of the concerns
raised, the prevalence of the mentally ill in SHU
appear to be among the gravest. The report states
that the most disturbing aspect ofthe Correctional
Association's site visits was "encountering
numerous individuals...who were actively
psychotic, manic, paranoid or seemingly overmedicated." On nearly every site visit, the report
states, the Association researchers, including
independent psychiatrists assisting the researchers,
"encountered individuals in states of extreme
desperation: men weeping in their cells, men who
had smeared feces on their bodies or lit their cells
on fire; prisoners who eut their own flesh...;
inmates who rambled incoherently and paced
about their cells like caged animaL~ [and]
individuals with paranoid delusions."
The report states that the use of SHUs or
lockdown units has grown in recent years. The
units, designed for inmates who violate prison
rules or who corrections officials deem are threats
to security, are attractive because they are easier
to tmmage and cheaper to operate than regular
prisons. With no congregate activity and little outof-cell movement, contact between inmates and
staff is minimal.
The report states that between 1997 and
2000, New York built ten high-tech, total
lockdown facilities, representing a dramatic

expansion ofhigh-security housing. The report
also states that 7.6% of the inmate population
(approximately 5,000 of the state's 65,000
umllltes) are in disciplinary confinement in
New York, which, the report states, is one of
the highest proportions of inmates in SHU in
the country. Nearly a quarter ofthe inmates in
diseiplinary lockdown system-wide are on the
mental health caseload, according to the
report. In some units visited by the
Correctiofllli Association, over half of the
inmates were identified as seriously mentally
ill. Other findings from the report include the
following:
It

Between 1998 and 2001, over half of
the system's 48 suicides occurred in 23hour lockdown, although inmates in
these units comprise less than 10% of
the general population. Of the 258
inmates interviewed by the Correctiofllll
Association, the report states, 44%
reported previous suicide attempts
while in prison and 20% had prior
admissions to psychiatric units.

It

Over one-third of the inmates
interviewed by the Correctional
Association reported committing acts
of self-mutilation while Ul prison. The
report criticizes DOCS' praetice of
issuing misbehavior reports to inmates
who attempt to harm or kill themselves.

• Although there are nearly 1,000 New
York inmates with mental illness in
disciplinary segregation, the prison
system's sole psyehiatric hospital.
Central New York Psychiatric Center
(CNVPC), has space for only about
200 inmate-patients. CNVPC has not
increased its capacity since it opened in
1980, although the prisoner population
has tripled over that time.

Pro Se Vol. 14 No.1 Page 3
• While the Department claims that
deprivation orders are used infrequently
and for only the most incorrigible inmates,
nearly half (49%) of the inmates
interviewed by the Association received
such an order for violating rules while in
SHU. Forty-one percent reportcd receiving
four or more.

Treatment Program for inmates with mental
illnesses and educational programs. It also
recommends that separate psychiatric filCilities
be created for disciplinary inmates with serious
mental illnesses, and that certain unnecessarily
harsh, counter productive or dangcrous
practices - such as diet restrictions - be
eliminated.

• If an inmate's prison sentence ends before
their term in disciplinary confinement, the
inmate is released without any reorientation
program, directly from thc isolation of a
disciplinary housing unit to the community.

CommissionerCriticizesReport; State Moves
to Address Concerns

• Disciplinary eonfincment often takcs a
heavy toll on correction oflicers as well as
inmates. Officers in some units are stabbed,
spat at, assanlted or "thrown at." Some
omccrs use antidt~pressants to cope with the
stressful and depressing nature of the job.
The report states that some Sill] units
appeared well managed. Interviews with inmates
and staffat those facilities often revealed efforts by
staff to be attentive to inmate needs and provide
programming and ctlllnseling beyond that usually
provided in SHU. Those SHUs commended lor
good management included those at Shawangunk,
Sing Sing and Sullivan Correctional Facilities, as
well as the S-Bloek at Greene Correctional
Facility.
The report makes a number of
recommendations for improving SHU. In general,
it recommends that SHU be used with less
frequency and be reserved only for more serious
rule infractions, and that there be grcater oversight
ofSHUs by independent bodies, such as the State
Legislature. More specifically the report
recommends that DOCS expand and improve
programs for SHU inmates, including the
Progressive Inmate Movement System, in which
inmates are given incentives to improve behavior,
as well as substance abuse programs, the Special

Shortly after the Correctional Association
report wa~ released, Commissioner of
Conection.~, Glenn Goord issued a press
release in which he criticized the Association
for bias, charged that the report "reflects the
political agenda ofthis inmate lobbying group"
and refused to respond to thc issues raised
beyond taking issue with some of the figures
cited in the report. He notcd, for example, that
disciplinary confincment as a proportion ofthe
inmate population has decreascd over the past
three years and that approximately 1,500 of
the inmates included in the CNs count of
those in disciplinary confinement are actually
serving only brief "keeplock" sentences in
their own general confmement cells.
The Commissioner also argued: "The
inmates confmed in disciplinary housing are
'the worst of the worst.' The majority of all
inmates committed violent crinles on our
streets and many of them continue to violate
the rules even in our prisons. But the fact that
inmates know we will lock them up for
misbehavior contributes to the fact that
inmate-on-staffand inmate-on-inmate assaults
are at 20-year lows. That increases prison
safety for the employees who work in these
facilities every day. It also removes disruptive
inmates so the balance can apply themselves to
positive programs. The public benefits when
these offenders are released better prcpared to
live law-abiding lives."

Pro Se Vol. 14 No. I Page 4
The Commissioner also prohibited the
Correetional Association from entering New
York's SHUs in the future.
Despite the Commissioner's criticism and his
movcs against the Association, the State in recent
months has appeared to take modest steps to
address some of the concerns raised in the CA
report. For example, the State recently proposed
creating two "Behavioral Treatment Units" with a
total of 100 beds for inmates with serious mental
health problems in disciplinary housing, as well as
funding other improvements in thc care of the
mentally ill. See related stories below.
A copy of "Lockdown New York," the
Correctional Association report, may be obtained
by writing to The Correctional Association, 135
East 15th Street, New York, NY 10003. A copy of
Commissioner Goord's October 21, 2003 press
release, criticizing the report, can be obtained by
directing a FOIL request to Records Access
Officer. NYS Department of Correctional
Services, Building 2, 1220 Washington Avenue,
Albany, New York 12226-2050.

BOOT THE SHU
A Message from Tom Tcrrizzi, Executive
Director of PLS
Over the past two deeades, New York, like
other states closed many large mental institutions
in favor of a more community based system. The
goal was to close big institutions which had
become warehouses for people with mental illness,
with people languishing, often heavily medicated,
sometimes lmder deplorable conditions. The plan
was to place people in less restrictive settings and
provide more services to them where they lived.
Like many government initiatives, the plan was
not fully funded. While the state proceeded with
closing the large institutions, it did not fulfill its
promise to adequately fund community based
programs to provide services to people with

mental illness. The result was the creation of
smaller group homes, in which the conditions
often were no better than the large institutions.
Many people with mental illness chosc the
streets rather than shelters or group homes.
Many homeless people with mental illness
got caught up in the eriminal justice system,
some ending up in state prison. Many ofthose
ended up in SHU. Once again the state has
created a system where people with serious
mental illness are back in a highly restrictive
setting, where the only real treatment and
prol,,'l'aming is medication, completing the
circle.
There seems to be some real movement
today to reform New York State's largest
system of mental institutions, the SHUs in
maxinmm security prisons. PLS and the Legal
Aid Society have been involved in challenging
aspects of DOCS' and OMI-I's system over
the past fifteen years. The state has fought
vigorously any outside scmtiny and attempt to
reform what is a harmful and destmctive
system. It is only recently that it appears
DOCS and OMH are willing to take the first
steps to reform the way they look at and treat
mental illness in prison.
Two decades and many lives have been
wasted fighting reform efforts. To be fair,
DOCS did not ask to take on the role of
housing so many people with serious mental
illness who should not be in the prison system
to begin with. But like other problems dropped
on its doorstep, like the AIDS crisis, DOCS
was very slow to respond and allowed
conditions to deteriorate beyond minimal
constitutional and human rights standards.
Instead of adopting a therapeutic treatment
model, it chose to build, at great expense, new
SHUs across the state to warehouse many who
should be in less restrictive settings.
article continued, page 6...

Pro Se Vol. 14 No. I Page 5

Albany Times-Union Editorializes Against Use ofSHUfor Mentally III

In the Fall, 2003, edition of Pro Se, we reported the introduction in the legislature ofa
bill which would provide separate facilities for the treatment of inmates with serious mental
illness. The following editorial in support of the bill appeared in the February 6, 2004, edition
of the Albany Times-Union:
Torture in "The Box." Further confinement of mentally ill inmates is barbaric, and the
Legislature must outlaw it

Will someone at the state Capitol please listen to Ray Ortiz. He is, after all, one of
the relatively few people who actually knows the horrors of incarceration in The Box
firsthand. And this is what he says. "The Box isn't treatment. It's torture." Mr. Ortiz is very
fortunate to have survived the brutal ordeal of serving part of his prison time in what the
prL'ion bureaucrats call special housing units. Now he works for the New York Association
of Psychiatric Rehabilitation Services, which is fighting to stop the barbaric practice of
placing inmates with serious mental illnesses in The Box. It's such a difficult battle, though,
trying to bring some hwnanity into the state prison system. A bill sponsored by Assemblyman
Jeffrion Aubry, D-Queens, chairman of the Corrections Committee, doesn't even have a
sponsor in the Senate. Instead the practice of subjecting mentally ill inmates, many of whom
shouldn't be in prison at all, to 23 hours a day in confInement continues. Department of
Correctional Servic,es Conmlissioner Gleim Goord defends the use of The Box on the
grounds that it's intended to change inmates' behavior. Perhaps it does, in a constructive
sense, in certain cases. But the evidence suggests that confInement in The Box further
damages mentally ill inmates, who are much more likely to be locked up there than other
inmates. A report by the Correctional Association of New York, an organization specifIcally
authorized by state law to visit prisons and interview inmates and employees, fOWld last year
that when inmates in The Box try to hurt or kill themselves, as they do with alarming
frequency, the prison system punishes them with even longer stays. There are any number of
injustices and inequities awaiting action, or, in many cases, perhaps, inaction by the
Legislature this ycar. Few, if indeed any, would be as great an assertion of fundamental
human rights as a ban on the incarceration of irunates with serious mental illnesses in The
Box. Surely there's a senator who shares that view, isn't there? Someone will co-sponsor Mr.
Aubry's bill, right? That would leave the next move up to Sen. Michael Nozzolio, R-Seneca
Falls, chairman of the Crime and Correction Committee. Or Sen. Joseph Bruno, RBrunswick, the majority leader. We'll look forward to hearing from them.

Pro Se Vol. 14 No.1 Page 6

...article continued/rom page 4
PLS and the Legal Aid Society reeently
settled part of a class action with DOCS,
reported in this issue of Pro .'Ie, to reform the
way inmates with serious mental illness are
handled in the disciplinary process. This
reform will only make a difference if DOCS
shifts its focus from punishment to treatment
when dealing with those who do not respond
to lengthy box stays and bread and water diets.
It will only work if more options other than
SIDJs exist in the system.
Public hearings on an Assembly bill to
prohibit the housing of inmates with serious
mental illness were completed in January. A
broad coalition of community based mental
health agencies, families of prisoners and
former inmates joined in testifying about the
problems in the current system. As visible
elsewhere in this issue of Pro .'Ie, newspapers
have begun to editorialize in favor of the
Assembly bill. OrganizatiolLq such as the New
York Chapter of the National Association for
the Mentally 111 have made reform of the
prison mental health system a top legislative
priority. Even the guards' union testified in
favor of reform, recognizing that their
membership is not trained for nor equipped 10
be the front line staff interacting with those
who are in crisis. Discovery in Disability
Advocates v. DOCS and OMH, a statewide
systemic action challenging the lack of
treatment for those with serious mental illness
in SHU brought by a coalition of reform
advocates, including Prisoners' Legal Services,
is moving forward at a brisk pace. The case
will require the state to publicly defend this
system which a growing list of newspaper
editorials have called into question. As also
reported in this issue of Pro .'Ie, the Governor,
in apparent response to this public pressure,
has included some funds in the Executive
Budget proposal to create several new mental

health programs within DOCS, provide more
OMH personnel and expand the Intermediate
Care and Special Treatment programs. While
the initiative is welcome, it is not enough to
address the problem. Simply expanding
existing programs while still using the SIDJ as
housing will not break the cycle of neglect.
What we all want to see is real reform.
Today we want to have people with serious
mental illness receive treatment in a
therapeutic setting and not locked away in
solitary confincment, out of sight. We want a
society and mental health systcm which
rccognizes and treats mental illness at an early
stage so that large, unresponsive institutions
do not become the dumping grounds for
problems left untreated. We do not want to be
back here in 20 years seeking to undo what
has been created in the name of reform
because society has lost interest in the issue
and promised resources were never delivered.

Claims Settled in Case Involving Rights of
Inmates With Mental Illness at Disciplinary
Hearings: DOCS to Improve Procedures
Inmates have reached an agreement with
DOCS to settle part of a class action lawsuit,
Anderson et al. v. Goord et aJ. (87-CV-141,
N.D.N.Y), concerning the rights of inmates
with mental illness at disciplinary hearings.
The plaintiffs are a class of inmates with
mental illness serving disciplinary confinement
in the SHUs at Auburn and Green Haven
Correctional Facilities. They e1aim that the
prison disciplinary process as applied to them
constitutes cruel and unusual punishment and
denies inmates due process of law in violation
ofthe Eighth and Fourteenth Amendments to
the United States Constitution.

Pro Se Vol. 14 No. I Page 7
Under the settlement, DOCS has agreed to
amend the regulations that apply to Tier III
disciplinary hearings to set forth new
procedures to be followed in disciplinary
hearings involving inmates with mental illness
and/or limited intellectual capacity. Under the
new regulations, the hearing 0 flicer will be
required to consider evidence ofthe inmate's
mental condition and/or intellectual capacity
both at the time of the incident and at the time
of the hearing. In addition, the hearing officer
will be required to consider the inmate's
mental health and/or intellectual capacity in
determining an appropriate penalty ifthere is
a finding ofguilt. The new regulations will also
establish "Special Housing Unit Case
Management Committees." These committees
arc to be formed in each maximum security
prison that houses OMH level I inmates (this
means all maximum security prisons, except
Southport and Upstate). The purpose of the
committee is to review and monitor SHU
inmates on the OMH caseload and any other
SHU inmate referred to the committee. In
addition, the committees will review the status
of all inmates newly assigned to SHU
Ibllowing a Tier III disciplinary hearing in
which the inmate's mental health or intellectual
capacity is at issue. The committees may also
recommend restoration of privileges,
suspension or reduction of SHU time, or a
housing reassignment; or recommend to OMH
that the inmate's medication be reevaluated or
that the inmate be examined by two physicians
for possible commitment to Central New York
Psychiatric Center (CNYPC).
The settlement further requires that when
an Office of Mental Health (OMH) clinician
testifies at a Tier III diseiplinary hearing, that
clinician will be familiar with the inmate's
mental heaith status or will review the inmate's
mental health records prior to providing any
information to the Hearing Officer. The
testimony of the OMH clinician at a Tier III

hearing will include, behaviors associated with
the diagnosis, medication, purpose of
medication, side effects and medication
compliance, and the inmate's psychiatric
history including whether the inmate has ever
been in a psychiatric hospital. The OMH
testimony will be taken outside ofthe inmate's
presence and treated as confIdential.
Finally, the settlement requires that training
be provided to various DOCS staff at Green
Haven and Auburn Correetional Facilities.
The training will include: how to recognize
when an imuate may be mentally impaired at
the time of thc hearing; the significance of
mental impairment at the time of the ineident
in determining whether there should be a
penalty and what the penalty should be; the
nature of the mental illness; techniques lor
managing the behavior of inmates suffering
from mental illness; psychological needs of
SHU inmates and recognizing when an inmate
should be referred to OMH.
The settlement agreement will stay in elfect
for at least a five year period from the date the
regulations are adopted. Plaintiffs' connsel
will actively monitor the agreement for at least
three years /i'mn that date. The settlement
requires that certain records be provided to
Plaintifls' counsel during the monitoring
period. In addition, the settlement permits
Plaintiffs' counsel to review OMH reeords,
disciplinary hearing records and tapes
(including the OMH confidential taped
testinlony) of hearings that occur at Green
Haven and Auburn Correctional Facilities.
Although the litigation and settlement
agreement pertain to Auburn and Green Haven
Correctional Facilities only, the new
regulations will apply to all prisons throughout
New York State.
Another claim in the Anderson lawsuit
alleges that housing inmates with mental illness
in Speeial Housing Units (SHU) at Auburn and
Green Haven Correctional Facilities is cruel

Pro Se Vol. 14 No.1 Page 8
and unusual punislunent in violation of the
Eighth Amendment to the United States
Constitution. This claim is still pending befbrc
the court.
PlaintifJ.~ in Anderson were represented
by Prisoners' Legal Services ofNew York and
the Prisoners' Rights Project of the Legal Aid
Society.

State Amwunces Financing for New
FacilitieslPrograms
for Iflmates With
Mental Illness
Faced with mounting criticism of its
treatment of imnates with mental illness, the
State of New York recently aunounced plans
to open two new mental health units within the
Department ofCorrectional Services. The two
new units will serve imnates with mental illness
who would otherwise be confined in Special
Housing Units.
Inmate advocates have long charged that
many inmates are confined to SHU because of
misbehavior that stems from their mental
health problcms, and that their mental
problems are, in tum, exacerbated by the harsh
conditions of SHU. According to some
advocates, this creates a downward cycle in
which inmates with mental ilIncss initially act
out as a result of their illness and are then
punished by being placed in SHU, which
causes them to misbehave further as their
mental health deteriorates, which results in yet
more punislunent. The two units, one at
Sullivan Correctional Facility, the other at
Great Meadow, will have a total of 102 beds.
According to the Office of Mental Health,
approximately 11%, or 473, of the 4,300
inmates serving time in SHUs are suffering
from a serious mental illness.
The new units are intended to be an
alternative to SHU, according to Sharon
Carpinello, Commissioner of the Office of
Mental Health. They would consist of

behavioral cells clustered together, with spacc
nearby for imnates to participate in programs,
but they would not be allowed to mingle with
the general prison population. Current ccll
space would be adapted for the new units.
"This sort of behavior [by the state] will
provide inmates with more humane care and
create a safer prison environment," said
Harvey Rosenthal, Executive Director of the
New York Association of Psychiatric
Rehabilitation Services.
In addition to the new units, the state also
plans to spend an additional $13 million on
menIal health care in the state prisons in the
fiscalycar beginning April I ,2004. Part ofthat
money will be used to hire 66 new nurses and
psychiatrists to work in the prison system.
According to recent legislative testimony by
Commissioner Carpinello, the State also plans
to expand both the Special Treatment
Program, which provides mental health
services to imnates in SHU, and the
Intermediate Care Program, which provides
serviccs to irm1ates with mental illness to help
them transition to general population.

Deliberate IndijJerence: Court Vacates Jury
Award; Fimlv No Deliberate IndijJerence to
Inmate's Serious Medical Need
Hernandez v. Keane, 341 F.3d 137 (2d Cir.
2003)
When an imnate sues over the quality ofhis
medical care in the State Court of Clain1s he
will win ifhe can show that his care was either
negligent or constituted medical malpractice.
In addition, since the defendant is the State,
the imnate need not show that a particular

Pro Se Vol. 14 No. I Page 9
doctor or nurse provided inadequate care, only
that his care in general was inadequate.
In federal court, however, an inmate must
show not only that the care was negligent, but
that it was so bad that it violated his
constitutional right to be free of "cruel and
unusual punishment." To do this, he must
prove that prison officials were "deliberately
indifferent" to his "serious medical needs."
"Deliberate indifference" is a higher standard
than mere negligence or medical malpractice,
equivalent to criminal reeklessness. See
Hathaway v. Coughlin, 99 F.3d 550 (2d Cir.
1996). In addition, because the states are
immune from suit in federal court, it is not
suft1cient to prove that the medical eare in
general was inadequate. Rather, an inmate
must show that a particular person or persons
were "deliberately indifferent" to his "serious"
medical needs.
This case, decided last quarter, illustrates
how much more difficult it can be to meet the
federal standard than the state standard.
Imuate Hernandez sustained multiple
gunshot wounds prior to his incarceration. He
was treated at Bellevue Hospital but, for
medical reasons, several bullet fragments in his
hlmd were not removed. He len Bellevue
against the advicc of his doctors and lived on
his own for several months, during which he
sought no treatment because he could not
afford it. He was then arrested and spent the
next fineen months at Rikers Island - where,
for reasons unexplained, he also received no
treatment. He arrived at Downstate in July of
1994. After complaining about pain in his hand
he was told he would receive no treatment
until he arrived at his "next facility." In August
of 1994, he arrived at Sing Sing, still
complaining about pain. Sing Sing medical
staff referred him to an outside specialist who
scheduled an operation, however, the
operation was cancelled when the specialist
became unavailable.

In December he filed a grievance,
complaining that no follow-up appointment
had been made. He was then referred to a
second specialist who told him to retml1 the
following month for a further consultation.
Over the next several months he was treated
for a seizure disorder but was not sent back to
the outside specialist. In March, 1995, he was
transferred to Elmira - no one at Sing Sing
had thought to place him on a medical hold. At
Elmira he was sent to a new specialist, but that
specialist recommended against surgery on the
ground that it could worsen Hernandez's
condition. Finally, in January of 1996,
Hernandez was transferred back to Sing Sing
where, aner several additional months of
consultations and examinations, surgery was
performed. The hand, however, did not
improve as hoped. Hernandez then filed a
federal lawsuit claiming that the fuilure of his
hand to heal properly was due to DOCS' delay
in treating him as well as to several errors
committed in the post-operative period: pins
and wires in his hand were not timely
removed, causing infection; prescribed
physical therapy was not provided; and "feed
up" passes, allowing him to receive food in his
cell (because he had difficulty carrying a food
tray) were cancelled.
A jury awarded Hernandez more than
$100,000 in damages. The Second Circuit
Court of Appeals, however, reversed. That
court tound that the evidence had simply failed
to show that any of the specific doctors or
nurses whom Hernandez had sued had acted
with "deliberate indifference" to his serious
medical needs. The evidence, the com'! held,
"[might] support findings of negligence or
malpraetice as to one or more of the
defendants, or as to certain prison persom1el as
a group; it might support findings that the
system of treatment (as a whole) broke down
or misfired in some way in the particular
instance of this inmate's hand; it might even

Pro Se Vol. 14 No. I Page 10
support findings that someone involved in
Hernandez's care (other than the defendants
[named by Hernandez]) was deliberately
indifferent." In other words, the court found,
thc evidencc might have bcen sufficient to
support a claim in statc court, but it was
insufficicnt to support the higher "dcliberate
indiffcrence" standard in federal court. Thc
court thcrcfore vacated the jury award.

Retaliation Claim.~ Survive in the ;rd Circuit
Scott v. Coughlin, 344 F.3d 282 (2d Cir.
2003)
Bennett v. Goord, 343 F.3d 133 (2d Cir.
2003)
The Second Circuit recently reinstated two
retaliation claims that had been dismissed by
the district courts. The court found that sincc
genuine issucs of rnaterial fact existed which
could only be resolved by a jury, thc district
courts had erred in granting summary
judgment to the defcndants. In both cases, the
court focused on thc fact that the plaintiffs had
provided detailed affidavits and other
documentary evidence in support of their
allcgations of retaliation while DOCS merely
relied upon the misbehavior reports that were
generated by the officers involved and the
subsequent disciplinary hearings.
A retaliation claim is a claim that prison
officials took adverse action against an inmate
in retaliation for thc inmate's exercise ofsome
protectcd right. To establish a prima facie
claim of retaliation - and survive summary
judgment - the inmate must show that (l) the
conduct at issuc was protccted, (2) the
defendant took advcrse action against him, and
(3) therc was a cansal counection between the
protccted speech and the adverse action.
Defendants may still prevail, however, if they
can show that the adversc action would havc
been taken dcspite the retaliatory motive.

Scott involved a claim by an inmatc that he
had been retaliatcd against by COs Rando and
DeLukc. Spccifically, Scott complained that
Rando retaliated against him after he filed a
complaint about an earlier incident in which
Rando had allegedly confiscated some of
Scott's legal papers. According to Scott,
Rando later struck him with his baton during a
strip frisk and then filed a false misbehavior
report about the incident, which resulted in
Scott serving 180 days in SlID. Regarding
officer DeLuke, Scott complained that the
officer had retaliated against him after he
acted as a witness in support of another
inmate's allegations of assault. According to
Scott, DeLuke assaulted him in his cell, and
also fIled a fulsc misbehavior rcport against
him alleging that he had refused to submit to a
strip frisk.
A district court dismissed Scott's claim
against Rando lx>cause medical records
showed no significant injuries to Scott and he
failed to submit any additional evidence in
support of his claim. The 2nd Circuit was
disturbed by this analysis. "[T]he records
standing alone are inconclusive," wrote the
court. "[P]laintiff submitted an affidavit
describing the extent of his itljuries. These
sworn statements are more than mere
conclusory allegations subject to disregard, ...
they are specific and detailed allegations of
fuct, made under penalty ofpetjury and should
be treated as evidence in deciding a Sunlffiary
judgment motion....Byfinding against Scott on
thc basis of thc disparity between some of
Scott's medical records and statements in his
affidavit, the district court made an
impermissible credibility determination and
weighed contradictory proof. Thc crcdibility
of Scott's statements and the weight of
contradictory evidence may only be evaluated
by a fmder offuct" - i.e., ajury.
The dcfendants also argued that Scott's
claim should be di~missed because, they

Pro SeVol. 14 No. 1 Page 11
asserted, disciplinary action would have been
taken against him regardless of Rando's
allegedly retaliatory motive since another C.O.
also wrote a report which substantiated the
charges. The 2nd Circuit was not convinced.
The Court held that, "[w]hile it may be true
that Scott would have been punished in any
event, it is not at all clear that Scott would
have been punished to the same extent absent
defendant Rando's report." Since the Court
found that an issue of fact existed as to
whether Scott would havc been given the same
punishment regardless of Rando's retaliatory
motive it reversed the lower court's decision
granting summary judgment to defendant
Rando.
With respect to Scott's claims against C.O.
DeLuke the district court found that the
alleged physical assault and the subsequent
diseiplinary hearing would have occurred
regardless of DeLuke's possible retaliatory
motive. Specifically, it concluded that various
statements Scott made at his disciplinary
hearing constituted an admission that he had
refused to submit to the strip frisk. The 2nd
Circuit disagreed, stating, "[w]e are unable to
concur with the district court because its
interpretation of plaintiff's statements
impermissibly drew an inference against
plaintiff; the non-moving party, and awarded
summary judgment to defendant on the basis
of that inference. It is not at all clear that
Scott's statements can be taken as an
admission ofwrongdoing. A reasonable juror
could just as easily find that Scott denied
disobeying DeLuke's orders, given that his
initial response to the hearing officer's inquiry
as to whether he had disobeyed the order was
'No the offieer kicked me'."
Bennett involved an inmate who had
previously brought a retaliation lawsuit against
DOCS in 1995. DOCS eventually settled the
case, paying Bemlett $3,000.00 and promising
to consider hint for a transfer. Bennett alleged

that this settlement ignited a series of
retaliatory aetions by DOCS.
Prior to the settlement, Bennett had been
deemed eligible for a transfer to a medium
security facility and was transferred from
Attica C. F. to Collins C.F. In the midst of
fmalizing the settlement, however, Collins
attempted to transfer him back to Attiea. The
initial request for a transfer was denied due to
"insufficient reasons for placement." However,
three days later he was served with two
disciplinary charges, accusing hint of
"working to consolidate Imauthorized groups
to a common purpose to the detriment of the
safety and security of the facility" and
"defacing library books." Hearings were held
and thc c.harges were sustained. One day after
the second hearing, Bennett was transferred to
Attica. Bennett appealed the dispositions of
both hearings and DOCS reversed both,
finding, with respect to the first charge that it
was "conclusory [and] without supporting
details," and with respect to the second, that
Bennett was intproperly denied documentary
evidence. The charges were ordered expunged
from Bennett's reeords. Bennett requested a
transfer back to a medium-security facility.
DOCS denied his request stating that "he had
been 'deemed unsuitable for reduced
security,'.
.[b]ased both on recent
inforntation and [ ] past history."
Bennett sued, claiming that Collins and
Attica prison officials had retaliated against
hint for wintting his prior lawsuit by
transferring hint to Attica, by fIling false
disciplinary charges against hint and by
refusing to return him to a medium security
facility after the charges were dismissed.
DOCS moved for sunmtary judgment. The
district court ruled inDOCS' favor, (McAvoy,
J) adopted a magistrate judge's report and
recommendation which accepted DOCS'
arguments and found that the first instance of
alleged retaliation was unsupported because

Pro Se Vol. 14 No. I Page 12
"[t]he stipulation of settlement was not even
submitted to the court until after [Bennett]
was transferred to Attica," and the second
claim of retaliation was inadequate.
The 2nd Circuit reversed. The Court noted
that the defendants did not dispute that
Bennett's lawsuit and subseqnent settlement
and the filing of grievances were protccted
activities. The issue defendants contested was
whether there was a "casual connection
between the protected activity and the
· . l'mary actions
.
"
"'rhe 2"d
and t ranSlers.
dlSClp
Circuit found that Bennett "met his initial
burden of producing sufficient evidence to
raise a question of material fact about whether
retaliation was a substantial factor in the
transfers and in the discipline." The court
finmd that the "temporal proximity" between
the settlement of Bennett's case and the
alleged retaliatory actions provided
"circumstantial evidence of retaliation." The
court also held that Bennett's allegations were
further supported by the fact that ahnost all of
DOCS' adverse actions regarding Bennett
were subsequently fOlmd to be unjustified.
Defendants argued that since the settlement
was not entered at the time of the events in
question, their actions could not have had a
retaliatory motive. The 2nd Circuit disagreed.
The court found that even though the
settlement had not yet been entered with the
court, settlement discussions had already
begun. "Since these facts suggest a link
between the settlement and the acts of alleged
retaliation, it was error summarily to resolve
this issue in DOCS' favor....Once Bennett
produced evidence sufficient to raise a material
question of faet as to retaliation, the burden
shifted to DOCS to demonstrate through
admissible evidence that the challenged actions
would have occurred in any event. But none
was produced. Instead, DOCS essentially
treated its own motion for Smnn1ary judgment
as one to dismiss the complaint contesting only

the sufficiency of Bennett's allegations.
DOCS' motion was not accompanied by
affidavits of knowledgeable correctional
officers supplying their version ofthe relevant
events or their explanations for the transfer
attempts or disciplinary charges - or for that
matter, by any evidence at all rebutting
Belmett's evidence." Thus, the court held,
granting summary judgment in favor of DOCS
was improper.

Disciplillary
In-absentia llearillgs: IIICOlISistellt Decisiolls
Raise Que.rtions

Matter ofPauljaioute v. Goord, 759 N.Y.S.2d
700 (3d Dep't 2003) Iv. den 1 N.V.3d 501
(2003)
Matter of Rush v. Goord, 770 N.Y.S.2d 191
(3d Dep't 2003)
It is settled law that an inmate has a
fundamental right to be present at his or her
own disciplinary hearing. See Matter of Al
Jihad v. Mann, 159 A.D.2d 914 (3d Dep't
2000). If a hearing is held in an inmate's
absence, the burden is on DOCS to prove that
the inmate made a knowing, voluntary and
intelligent waiver of that right. To meet this
burden, DOCS must be able to show that the
inmate has been informed of the right and of
the consequences of failing to appear at the
hcaring. See Matter of Spirles v Wilcox, 302
A.D.2d 426 (3d Dep't 2003). Two apparently
inconsistent decisions from the Appellate
Division, Third Department, however, raise
the question of what, exactly, DOCS must
show to meet this burden.

Pro Se Vol. 14 No. I Page 13
Pauliajoute involved an inmate,
PauUajoute, charged with assaulting several
officers. Prior to the incident, corrections
officials had observed him behaving in a
bizarre manner. At his subsequent disciplinary
hearing, a C.O. testified that he went to
PauUajoute's cell twice to tell him that he
would be escorting him to the Tier III hearing,
but that on both occasions Pauljajoute refused
to come out of his cell. The hearing offi.cer
asked the C.O. if the inmate had been advised
that ifhe didn't attend the hearing it would be
held without him and the C.O. responded
affirmatively. The hearing officer then asked
the e.o. whether he had concluded that the
imnate was oriented, awake and understood,
and once again the C.O. responded yes. The
hearing offieer then concluded that Pauljajoute
had waived his right to attend, held the hcaring
in-absentia, and found the inITIatc guilty ofthe
charges
In court, Pauljajoute argued that the
hearing officer's brief interview with the C.O.
was not a sufficient basis upon which to
conclude that he had made a knowing and
voluntary waiver of his right to attend the
hearing. Specifically, he argued, DOCS had
failed to show that he understood the
consequences ofhis failure to attend. This was
particularly significant because there was some
evidence in the record that he was suffering
from a serious mcntal illness at the time the
incident occurred, and thus might not have
understood what he was waiving.
The court, however, felt that the hearing
officer had done enough: "There is no
requirement that a Hearing Officer pcrsonally
interview an inmate before concluding that
such imnate has made a knowing, voluntary
and intelligent waiver of his or her right to
attend a disciplinary hearing." The record
before the court demonstrated that the C.O.
attempted "to persuade [the inmate1to attend
the hearing." The court was thus satisfied that

"the Hearing Officer conducted a sufficient
inquiry prior to determining that petitioner had
made a valid waiver of his right to attend...."
In Rush v. Goord, as in PauHajoute, a CO
testified that he had gone to imnate Rush's cell
to bring him to the hearing, but that the inmate
had refused to eome out. Unlike Pauljajoute,
the hearing officer in Rush stated that he, too,
had gone to imnate Rush's cell and told him he
was holding a Tier III hearing on the charges
but "Rush refused to come out of his cell to
attend his hearing."
Thc court found for Rush, holding:
"Even assuming that a correction officer and
the Hearing Officer advised petitioner that his
disciplinary hearing was about to commence
and that petitioner indecd rcfused to attcnd,
there is absolutely no indication in the record
that petitioner was advised of his right to
attend such hearing and of the consequences
of his failure to do so."
It is hard to square these two results.
The court's finding in Rush that the record
contained no indication that the imnate was
advised ofhis right to attend the hearing or of
the consequences of his failure to attend was
ccrtainly correct. However, there was also no
such indication in the record in the PauHajoute
case. Further, it appears that the hearing
officer in Rush, by personally going to the
inmate's cell, made more ofan effort to bring
the imnate to the hearing than did the hearing
officer in PauHajoute.
Finally, in the
PauHajoute case, unlike the Rush case, there
was a serious question as to whether the
inmate would have been capable of
understanding the consequcnces of his refusal
to attend even if it had been explained to him.
It is thus diffi.cult to understand why the eourt
ruled for the inmate in Rush, but against the
inmate in Pauljajoute. These inconsistent
deei~ions leave a significant question in their
wake eoncerning exactly what it is DOCS

Pro Se Vol. 14 No.1 Page 14
must do to establish that an inmate has
genuinely waived his right to attend a hearing.

Note: The inmates in both of these
cases were represented by PLS. In
Pau!iajoute,PLS .filed a Motion .for Leave to
Appeal to the Court ofAppeals. The motion
was denied.
Employee Assistance: Required In Some
Cases, Not All
Matter of Miller v. Goord, 767 N.Y.S.2d 704
(3d Dep't 2003)
Matter of Krall v. Inmate Disciplinary
Programs, 766 N.Y.S.2d 153 (3d Dep't 2003)
In Wolffv. McDonnell, 418 U.S. 539
(1974) the Supreme Court held that prisons
are not required to provide attorneys to
inmates facing prisondisciplinary proceedings,
even when additional prison time may result.
The Court went on to say, however, that
where the inmate is illiterate, or where "the
complexity of the issue makes it unlikely that
the inmate will be able to collect and present
the evidence necessary for an adequate
comprehension of the ca~e," he should be
allowed to have assistance from staff. DOCS'
regulations provide that an inmate shall be
given an employee assi&1ant if he is illiterate,
non-English speaking, sensorially disabled,
charged with drug use as a result of a
urinalysis test, or eonfmed pending his hearing.
Beyond that, the question of whether to grant
an aqsistant is within the discretion of the
hearing officer. 7 NYCRR §251-4.1. Two
recent cases emphasize that the "right to
assistance" is not absolute.
In Krall v. Selsky, the inmate was
charged with violating prison rules prohibiting
the use of controlled substances after a urine
test turned up positive. At the disciplinary
hearing he complained that he had not received

employee assistance. Instead ofadjourning the
hearing to provide the assistance, the hearing
officer continued the hearing and provided the
inmate with some ofthe documentation he had
requested. The court found tins to be
insufficient. "[G]ivcn the total lack of
employee assistance and the nature of the
charges, we find that the hearing should have
been adjourned in order to provide [the
inmate] with the aqsistance to which he was
entitled in order to aide in the preparation of
his defense."
In Miller v. Goord, however, the court
reached a different result. Miller involved
charges that tbe inmate had failed to follow
various direct orders. Nothing in the reeord
indicated that he was either illiterate, nonEnglish speaking or scnsorially disabled. He
was not charged with drug use based on a
urinalysis test nor was he eonfined to his cell.
The court concluded that the charges were not
complex and the inmate had not been
prejudiced by the lack of an assistant. Under
those circumstances, the court held, there was
no error in the hearing officer's decision not to
grant the inmate's request for an a~sistant.

Confidential Information: Hearing Officer
Fails to Assess Reliability of Confidential
Informant
Matter ofGantt v. Girdich, 766 N. Y.S.2d 615
(3d Dep't 2003)
Inmate Gantt was found guilty of
destroying state property after a correction
officer discovered sand in the oil pans of
several facility Iawnrnowers. The charges were
based solely on the testimony ofa confidential
informant. Courts have held that the testimony
of a confidential informant will support a
determination in a prison disciplinary hearing
so long as the record shows that the hearing
officer had some basis for determining that the

Pro Se Vol. 14 No.1
informant was credible and reliable. Here the
court found that, although the hearing officer
personally interviewed the infonnant, he fdiled
to adequately assess his credibility and
reliability. The infonnant's allcgations were
"insufficiently detailed," held the court, and the
circumstances in which they were made
"raise[d] serious suspicions rcgarding [the
infomlant's] reliability." Furthcr, the hearing
officer "fail[ed] to ask general questions
reflecting on credibility [or] to address
possible motives for false testimony which
were raised by another witness." Under those
circumstances, held the court, the informant's
evidence was insufficient to support the
detennination of guilt.

Contraband: Chopstick Not Contraband,
But Weapon
Matter of Zhang v. Murphy, 766 N.Y.S.2d
633 (3d Dep't 2003)
Inmate Zhang was found guilty of
violating disciplinary mles prohibiting the
possession of contrahand or of weapons after
a sharpened chopstick was found in his cell.
On review, the court found that the chopstick
was not contraband - nothing in DOCS'
regulations prohibits the possession of
chopsticks - but that there was substantial
evidence that, because it had been sharpened,
it was intended to be used as a weapon. The
court also rejectcd petitioner's assertion that
he should have been provided with a Chinese
interpreter at his diseiplinary hearing, holding
that he was "sufficiently fluent in English to
understand and knowledgeably participate in
the diseipliuary hearing."

Religion Held No Excuse Foi' Contrabtmd
Matter of Rivera v. Goord, 767 N.Y.S.2d 701
(3d Dep't 2003)
Petitioner in this case was found in
violation of disciplinary rules prohibiting the
possession of alcohol. After a strong odor of
fennentation was detected emanating from his
locker, a search disclosed two hollowed-out
apples in a styrofoam eup, each containing an
amber liquid that smelled strongly of alcohol.
At his diseip1inary hearing, petitioner conceded
that the apples were his but asserted that he
had hollowed them out and filled them with
honey as part of a religious ritual that he
practiced as a member 0 f the Santeria faith.
Neither the hearing officer nor the court
bought tbe defense. The court first held that
the petitioner's claims merely presented an
issue of credibility which the hearing officer
was free to reject. It then went on to point out
that an alleged infringement upon an inmate's
religious practices would not, in any event, be
sufficient in and 0 f itself to excuse the
violation ofa prison disciplinary rule.

Where Contraband Not in Inmate's
"Substantial Control," Court Finds
Insufficient Evidence
Matter of Price v. Phillips, 770 N.Y.S. 882
(2d Dep't 2003)
A prison disciplinary hearing must be
supported by "substantial evidence." In order
to sustain a detennination of guilt, a court
must find that the disciplinary authorities
offered "such relevant proof as a reasonable
mind may accept as adequate to support a
conclusion or ultimate mct" (see People exrel.
Vega v. Smith, 66 N. Y.2d 130, 139).

Pro Se VoL 14 No.1 Page 16

In this case, inmate Price was charged
with possession of a controlled substance and
the unauthorized possession of money after
both items were found ina pill case adjacent to
his cell. While the pill case was accessible to
Price, it was also accessible to other inmates
on the cell block. The court concluded that
under these circumstances there was
insufficient evidence in the record to connect
the petitioner to the contraband, or upon
which the hearing officer could conclude that
the petitioner "substantially controlled" the
area in which the contraband was found.
Consequently, the court vacated the
disciplinary hearing.

Substantial Evidence: Circumstantial
Evidence Is Enough in Assault Case
Matter ofHernandez v. Selsky, 764 N.Y.S.2d
663 (3d Dep't 2003)
Inmate Hernandez was charged with
violating prison disciplinary rules prohibiting
fighting, violent conduct and assault, following
an investigation ofan incident in which he was
found with severe lacerations and wounds,
staggering down a walkway leading to the law
library. A search of the area uncovered
weapons consistent with both Hemandez's
injuries and those of another inmate in the law
library. At the hearing, the hearing officer
reulSCd to credit Hernandez's assertions that
he did not recognize his attacker and that he
was acting in self-defense, and found him
guilty. Hernandez filed an Article 78
proceeding to challenge the hearing result. The
court ruled that there was sufficient
circumstantial evidence to support the hearing
officer's conclusion that Hernandez was guilty:
both inmates were in the same hallway at the
time ofthe assault, they were each assaulted at
approximately the same time, each suffered
slashing type injuries, no other inmates in the

area were wounded, weapons found in the
area were consistent with the injuries and,
finally, a confidential infom13nt provided a
motive for contention between the two
inmates.

Other State Cases

F.O.I.L.
DOCS Ordered to Give Inmate Records Qf
I. G. Investigation
Matter ofBeyah v. Goord, 766 N.Y.S.2d 222
(3d Dep't 2003)
In a significant win for inmates, New
York's intermediate appellate court held
recently, in a 5 - 0 decision, that substantial
portions ofthe Inspector General's (IG) file of
an investigation of an inmste's allegations of
brutality should be available for inspection by
inmates and the public under the state's
Freedom of lnfomlation Law, or "FOIL"
(Public Officer's Law Art. 6). DOCS has long
resisted such disclosure, arguing that the IG's
file should be exempt from disclosure under
one or more of the exemptions to disclosure
set forth in Public Officer's Law § 87(2).
lbe petitioner, inmate Abdul Beyah,
was involved in an altercation with COs at
Auburn Correctional Facility as a result of
which he suffered renal failure, fractures ofhis
eye orbits, and other severe injuries. The
In.~pector General's office investigated the
incident. Beyah subsequently requested the
record ofthe 1. G. ' s investigation under FOIL.
DOCS denied the request and Beyah filed an
Article 78 proceeding challenging the denial.
The lower court upheld DOCS' denial, but
Beyah appealed. The state Appellate Division

Pro Se Vol. 14 No. I Page 17
reversed the lower court and held that the
majority of the documents Beyah requested
should be disclosed. The court held that state
agencies should operate under the presumption
that their records are available for public
scrutiny and that the exceptions in FOIL are to
be "narrowly construed." The court
specifically held that the following documents
should be released:
Employec Accident Reports. These
are reports ofinjuries suffered by correctional
officers in an incident. DOCS argued that they
should be excmpt from diselosure because they
were either "medical histories" or because
their disclosure would constitute an
"IUlwarranted invasion of personal privacy."
The Court disagreed. "[N]otations contained
within the accident reports. . . which describe
the general nature of the correction officers'
~juries sustained in the incident, ifany, do not
reveal details ofany existing medical condition
and, therefore eannot reasonably be considered
a relevant and material part of each officer's
medical history."
Employee Interviews: These are notes
- or sometimes verbatim transcripts - of the
IG's interviews with DOCS employees
regarding an incident. DOCS argued that these
notes should be exempt from disclosure IIUder
Civil Rights Law § 50-a(1). That statute
deems "personnel records used to evaluate
performance toward continued employment or
promotion. . . .of correction officers"
confidential and thus, DOCS argued, prohibits
their disclosure. The court disagreed.
According to the court, DOCS "offered no
evidence establishing that the interviews are
relied upon in evaluating employee
performance...." DOCS also argued that
disclosure of employee interviews should be
prohibited because "they were compiled for
law enforcement purposes and, if disclosed,
would reveal confidential information or
confidential
investigative techniques or

procedures. The court's in camera review led
it to conclude otherwise. It found that there
was nothing in the information which was
confidential or which revealed "any nonroutine criminal investigative techniques or
procedures."
Report of Complaint Progress and
Index Sheets and Receipt ofComplaint: Thesc
documents detail the steps the IG has taken in
his investigation. DOCS again argued that
disclosure of these documents would reveal
non-routine criminal investigative techniques
or procedures. The court explained that in
dete~ whether an investigative technique
is non-routine one must consider "whether
disclosure ofthose procedures would give rise
to a substantial likelihood that violators could
evade detection by deliberately tailoring their
conduct in anticipation of avenues of inquiry
to be pursued by agency personnel." The court
fOllUd that none of the documents in question
in this case set forth methods of inquiry
beyond what is typical in a routine
investigation.
Employee Training Records: The court
acceptcd DOCS' argIIUlent that employee
training records are personnel records within
the meaning ofCivil Rights Law §50-a(I), but
ordered them disclosed nonetheless, on the
gronnd that DOCS had failed to adequately
demonstrate that there was a "substantial and
realistic potcntial... for [their] abusive use"
against the officers.
Prison Directive No. 4901: The Court
ordered diselosure of this Directive, which
relates to the maintenance of!og books, since
DOCS was U11able to demonstrate that such
disclosure posed any chance of danger to the
safety and security of DOCS persoUllel.
The court did reject disclosure of one
set of documents, those that would have
shown the job assignments ofCOs throughout
the fucility. DOCS argued that disclosure of
these records could threaten institutional

Pro Se Vol. 14 No. I Page 18
security, and the court agreed. The court aJ.~o
ordered that, in all disclosures, DOCS would
be required to redact personal infommtion,
such as home addresses and social security
numbers.
The court did not discuss whethcr
DOCS should be required to diselose the IG's
investigatory conclusions under FOIL. It
appears that the inmate did not request the
IG's conclusions in this case.

Parole
Crime Victim Lacks Standing to Challenge
Grant of Parole
In the Mattcr of John Hancher v. Travis, 1
Misc. 3d 903 (Supreme Ct., Westchester Co.,
2003)
Whcn an inmate challenges a parole
denial he typically argues that the Parole
Board failed to properly consider the statutory
guidelines for parole set forth in Executive
Law § 259-i, that the conduct of the hearing
violated lawful procedures and/or that the
decision was "irrational bordering on
impropriety." This case presents an ironic twist
on that pattern: In this case, a crime victim
sued the Parole Board arguing that it had
failed to properly consider the statutory
guidelines and acted irrationally when it
granted parole.
The case is a spin off of the ongoing
saga ofKathy Boudin. Ms. Boudin, a member
of the radical Weather Underground in the
Sixties, was convicted of participating in a
1981 robbery in which two police officers
were killed. She became eligible for parole in
200 I. Despite an unblemished prison record,

her parole was politically contentious:
Governor Pataki and the Police Benevolent
Association, among others, opposed it. After
being first denied parole in 2001 she filed a
successful Article 78 proceeding challenging
the denial: The court concluded that the
Board's denial of parole was irrational and
improper. Ms. Boudin was granted parole by
a subsequent Board in the summer of2003.
John Hancher, a relative of one of
deceased police officers, then sued the Board,
arguing that the Board's grant of parole was
irrational and improper. The court rejected the
suit, holding that crime victims do not Ilave
standing to challenge the parole board's
actions.
"Standing" is a legal concept referring
to the right to bring a lawsuit in the first place.
In order to have standing to sue, a litigant
must show that the action over which he is
suing will have a harmful effect upon him
which is different lTom that suffcred by the
publie at large. Here, the court found, while a
crime victim may be more emotionally affected
by the crime than a member of the general
public, tllat increased emotional effect is not
sufficient to confer standing to challenge the
Parole Board's actiolls.
Moreover, the court tound, even ifMr.
Hancher did have standing, there was no mcrit
to his suit. The court found that all of the
statutory factors set forth in Executive Law §
259-i had been properly eon.~idered by the
Board. Further, while Hancher argued that
Boudin had failed to admit her guilt at the
hearing and attempted to justify her acts, the
transcript of the hearing proved otherwise:
Boudin explicitly accepted her responsibility
for the deaths of the two police officers and
expressed profound remorse.

Pro Se VoL 14 No.1 Page 19

Family Reunion Program
Courts Side With DOCS On Denial of
Family Reunion Visits
Matter of Rosas v. Baker,766 N.Y.S.2d 612
(3d Dep't 2003)
MatterofCouserv. Goord, 766N.Y.S.2d 461
(3d Dep't 2003)
DOCS' Family Reunion Program
(FRP) permits inmates to spend extended
periods oftime with family members in private
trailers on prison grounds. Courts have
historically granted DOCS wide discretion to
decide who can and cannot participate in the
FRP, as these two cases demonstrate.
In Rosas v. Baker, inmate Rosas
applied to participate in the FRP with his wife.
His application was supported by both his
guidance counselor and by the superintendent
of his facility. The Family Reunion
Coordinator, however, recommended that the
application be denied because he felt Rosas
should complete sex offender counseling prior
to being permitted to participate in thc FRP.
Rosas appealed, but DOCS' central office
upheld the decision of the Family Reunion
Coordinator citing, among other things, the
nature of Rosas' crime as well as the
"[s]ensitive nature of the [FRP] to the
participation of sex offenders." Rosa~ then
brought an Article 78 proceeding to challenge
the denial TheJower court ruled in his favor.
That court held that DOCS had failed to
articulate an adequate connection between his
status as a sex offender and his application to
visit with his wife "such that valid security or
other identifiable concerns militate[d] against
[its] approval." DOCS appealed, however, and
the Appellate Division reversed. Participation
in the Family Reunion Program is not a
constitutionally protected right, the court
stated: "As long as [the program] is
implemented in a reasonable manner,
consistent with the inmate's status a~ a
prisoner and the legitimate operational
considerations of the institution, it will

withstand judicial scrutiny." Here, the court
noted, one of the FRP's regulations
specifically cautions that "active participation
[or] completion" of a progranl may be
required as a precondition to participation. See
7 NYCRR §220.2(a)(3)(iii). Since that was
precisely one of the reasons given by DOCS
for refusing to allow the inmate to participate,
and since the decision wa~ not otherwise
irrational, the court upheld the denial.
The inmate in Couser v. Goord had
been convicted ofmurder and sentenced to life
without parole. He married while incarcerated
and subsequently applied to participate in the
FRP with his wife. DOCS denied the
application on the grounds that his crime was
of a "heinous nature" and the inmate sued.
The court upheld DOCS' decision. The FRP
regulations specify that one of the factors
DOCS must consider in deciding whether to
grant an FRP application is whether the inmate
has been convicted of "heinous or unusual
crimes." 7 NYCRR §220.2(e)(1 )(iii). Here, the
court found that the inmate's crimes were
"egregious." Moreover, the court found, his
participation in FRP could not further the
program's goals of"sustaining family tics that
have been disrupted as a result of
incarceration" because his marriage occurred
after he had been incarcerated and, in view of
his sentence, he will never return to society.
Under those circumstances, the court held,
DOCS' decision was not irrational and would
therefore be sustained.

Sentencing
New York High Court Affirms Appellate
Division : DOCS Not Free to Disregard
Commitment Order In Computing Inmate's
Sentence
Matter ofMurrayv. Goord, 1 N.Y.3d 29, 769
N.Y.S.l65 (2003)

In a decision issued last year, the
Appellate Division held that DOCS was wrong
in concluding that a new sentence under which

Pro Se Vol. 14 No. I Page 20
petitioner Murray was incarcerated was illegal
and, even if it was not wrong, it was not free
to simply ignore a lawfully issued commitment
order. Murray v. Goord, 701 N.Y.S.2d 426
(3d Dep't 2003). (Pro Se reported on this
decision in our Winter, 2003 edition.) Since
we reported on this decision DOCS appealed
to the Court of Appeals, the State's highest
court. That Court has now uphcld the
Appellate Division, holding: "DOCS is not
frec to disregard a commitment order. [PJrison
officials are conclusively bound by the
contents ofcommitment papers accompanying
a prisoncr....DOCS's only valid option in
circumstances such as these is to comply with
the plain terms of the last commitment order
reccived."
This is a significant win for inmates on
an issue that has been debated for many years.
Ordinarily, when a person is sentenced to
prison, the sentencing court drafts a
"commitment order" specifYing how the
sentence is to run. For example, ifthe sentence
is to run concurrently with an earlier sentence,
the commitment order will say so. DOCS is
required to carry out the terms of the
commitment order. From time to time,
however, DOCS will receive a commitment
order which, for one reason or another, it
concludes is illegal. Frequently, in such cases,
DOCS will simply disregard the commitment
order and calculate the sentence in the manner
it believes the law requires - often to the
detriment of the inmate whose sentence is
being recalculated. For example, DOCS may
run sentences consecutively which the
sentencing court has ordered be run
concurrently. That is essentially what
happened in this ease.
'nle facts in Murray were these: inmate
Murray received a sentence of7 Y, to 15 years
for criminal sale ofa controlled substance. One
year later, he received a second sentence of7
y, to 15 for manslaughter, which the judge
ordered to run consecutively to the controlled
substance charge. On appeal, the drug
conviction was reversed and remanded for a
new trial, but the manslaughter conviction was

upheld. Murray then pled guilty to the drug
charges in exchange for a sentence of 7 Y, to
15 years to nm concurrent to, rather than
consecutive to, the manslaughter sentence. He
thus had two contrary commitment orders, one
from the judge on his manslaughter case
ordering that the sentences run consecutively,
and a second, later order, from another judge,
that the sentences run concun·ently.
Once in State custody he learned that
DOCS had concluded that the second
commitment order - the one ordering the
sentences to run concurrently - was illegal.
DOCS felt that the judge did not have the legal
authority to essentially overrule the
commitment order of the earlier judge. It
therefore ignored that judge's commitment
order and calculated thc sentences
consecutively, not concurrently.
The Court ofAppeals has now r"iectcd
both DOCS' substantive position on the
sentence and its tactics. Regarding the
substance, the Court held that the latest
commitment order controls the sentences.
Regarding tactics, the Court held that DOCS
is not free to simply decide for itself which
commitment order controls.
Court of Claims
Medical Malpractice: Court Orders State to
Pay Inmate $800,000 After DOCS Fails to
Diagnose Cancer
Zacchi v. State of New York, N.Y. Ct. CI.
(Claim No. 102854)
Inmate Ronald Zacchi was serving a 2
to 6 year sentence at Governeur Correctional
Facility when, in 1998, he began experiencing
discomfort in his throat. Between April of
1998 and August of 1999 he was seen by
fucility nursing staff26 times, staffphysieians
10 times and other physicians 24 times. He
was routinely treated with throat lozenges,
antibiotics and other remedies directed to
address his sore throat. This treatment,
although ineffective, was continued for seven

Pro SeVol. 14 No. I Page 21
months. It was not until a ma~s in Zacchi's
throat became obvious that a correct diagnosis
- cancer ofthe larynx - was rendered. By that
time, the only remedy was to remove the
larynx, a radical and life-altering surgery.
Zaachi sued DOCS, claiming medical
malpractice.
The court found that DOCS' treatment
of Zacchi was negligent. "It is clear from the
medical records that the staff at Governeur
believed [Zaeehi] to be a chronic complainer,
and they may have given little weight to some
of his complaints for that reason....Even true
hypochondriacs can become ill, however, and
[Zacchi's] many significant warning signs of
cancer should not have been ignored," held the
court. Of particular concern to the court was
the conduct of a nurse, Denise Congleton,
whose "testimony was not always consistent,"
and the testimony of Doctor Robert Kasulke,
which the court found "particularly troubling"
for its "cahn acceptance of the fact that he
never used a pharyngoscope to investigate any
possible abnormality" in Zacchi's throat. A
medical expert testified that ifZacchi's cancer
had been detected at least a year earlier, the
laryngectomy would not have been necessary.
"This case," held the court, "is analogous to
the fable of a boy who cried wolf too many
times and then was disbelieved when the wolf
was present," wrote the court. "Unfortunately
for the defendant, the wolf has always been
there." The court held DOCS wholly liable for
the medical malpractice and awarded Zacchi
$400,000 Jbr past pain and suffering and
$400,000 for future pain and suffering.
This case has not been reported in the
state reporter system.

DOCS Found Liable for Unauthorized
Disclosure of Medical Records
Davidson v. State ofNew York,
_ (3d Dep't 2004)

N.Y.S.2d

Imnate Davidson brought a medical
malpractice claim against the State in the
Court of Claims, claiming that he had been

given incorrect medication by prison staff.
During discovery he learned that DOCS had
released his medical records to the Attorney
General's office, which was representing the
State in his claim. He then brought a separate
action in the Court ofClaims claiming that the
State had violated the physician-patient
privilege by releasing his medical records
without either his authorization or a court
order.
DOCS argued that the release of
Davidson's medical records was authorized by
7 NYCRR § 5.24[b]. That section provides
that medical records may be released to certain
categories of persons, including "a judicial or
administrative bodyor officer befbre which the
physical or mental health of an inmate is in
issue" but "only if a court has issued a
subpoena or other court order...specifically
demanding the production ofmedical records."
The Court ofClaims concluded, however, that
the medical records DOCS had released
included records that were unrelated to the
malpractice claim and, moreover, the Attorney
General had not obtained a court order
directing their release. The court therefore
concluded that the release of the records had
violated Davidson's rights and it awarded him
$500.00.
DOCS appealed. On appeal, DOCS
argued that the release was authorized by
Public Health Law § 18. That section pennits
health care providers to disclose "personal
notes and observations" regarding a patient to
au attorney consulted by the health care
professional, without them becoming
accessible to the patient. See Public Health
Law § 18(1)(e)(ii). The appellate court
disagreed. The court concluded that that
provision "does not constitute a blanket
authorization for the release ofpatient medical
records to a health care provider's attorney."
Accordingly, the court affirmed the award of
the lower court.
No citation was availablefor this case
at the time ofpublication.

Pro Se Vol. 14 No.1 Page 22

Family Court
Failure to Maintain Contact With Children
Results In Loss ofParental Rights
Matter of Doral R, Erie County Department
of Social Services v. Anthony R, Sr., 769
N.Y.S.2d 805 (4th Dep't 2003)
Annette B.. Orange County Department of
Social Services v. Joseph B., 769 N.Y.S.2d
587 (2d Dep't 2003)
These two cases, both decided in the
last quarter of 2003, illustrate the
consequences that incarcerated parents risk
when they fail to maintain contact with their
children. In both cases the court upheld
decisions ofthe Department ofSocial Services
(DSS) to terminate thc parental rights of an
incarcerated father.
In Doral B., DSS petitioned to
terminate the parental rights of both parents
after the mother voluntarily surrendered her
rights. DSS argued that the consent of the
father was unnecessary because, it said, he had
not maintained sufficient contact with the child
while he was incarcerated. After the ruther wa~
released from prison he sought custody of his
child. He argued that the prior termination of
his parental rights was invalid. The court
disagreed. Because the father had fuiled to
maintain "substantial and continuous or
repeated contact with his child" during his
incarceration, termination ofhis parental rights
was appropriate. The court noted that the
father had never paid child support and had
failed to establish that he was in regular
communication eithcr with the child or the
person or the agency having care or custody of
the child. It held that the father's incarceration
was not an excuse for his failure to maintain
communication.
The Annette R case is somewhat more
complicated. In this case, the father was in
regular contact with his daughter from at least
the time 0 f her birth, in 1991, until he was
incarcerated, in 1996. While he was in prison,
however, the mother moved, taking the child

with her, and failed to tell either the father or
anyone related to him ofher whereabouts. She
subsequently surrendered the child to thc
Orange County offi.ce of the DSS. Although
DSS knew that the father was incarcerated, it
did not notiJy him that the child had been
placed in foster care or that the mother had
surrendered custodial rights. The agency
subsequently pctitioned to tenninate the
father's parental rights on the ground of
abandonment.
The law requires that in order to
establish abandonment DSS must show that in
the six months prior to the filing ofthe petition
the parent ha~ "evidenced an intent to fort~go
his parental rights ...as maaifested by
his failure to vi~it the child and communicate
with the child or agency, although ablc to do
so and not prevented or discouraged from
doing so by the agency." Social Services Law
§ 384-b(5)(a). At a hearing on DSS's motion,
the father testified that he had tried to locate
his child by a~king the child's maternal
grandmother to tell him where the mother had
moved to, but that she told him that she did
not know. He also stated that he had asked his
own mother to make inquiries with the DSS
office in Suffolk County, where the child's
mother had last lived, but that DSS refused to
cooperate, apparently on grounds of
confidentiality. The majority ofthe court found
these efforts on the father's part were
insufficient. They were "sporadic and
minimal," according to the conrt, and not
adequate to excuse the ruther's failure to
maintain contact.
One judge dissented. That judge
argued that, as a practical matter, there wa~
little more that the TIlther could do from
prison. He did not know where the child's
mother had taken her. The child's maternal
grandmother either could not or would not
help him find her. The Suffolk County office of
DSS would not cooperate with inmate's
mother's efforts to obtain information, and the
Orange County office had failed to notiJy the
inmate when the child was placed in foster
care - which failure, according to the

Pro Se Vo\. 14 No.1 Page 23
dissenting judge, constituted a violation of
DSS's legal obligations. III light ofthese facts,
the dissent felt, it was primarily DSS's fault
that the inmate had been unable to maintain
contact with hi~ daughter. DSS had
"effectively prevent[ed] him from
communicating with [the child]" by failing to
notifY him when she wa~ placed in foster care.
That argument, however, was not sufficient to
sway the majority of the court, which found
that the futher should have done more.

Article 78 Proceedings: Don't Forget to
Serve the Order to Show Cause
The Article 78 proceeding is the
principal means by which inmates bring
lawsuits in state court when they want to
challenge some decision or action of the
Department of Correctional Services. The
proceeding gets its name from the place where
its uses and procedures arc spelled out in New
York's Civil Practice Law and Rules, or
"CPLR." Thus, it can be found at Article 78 of
the CPLR. Prisoners' Legal Services has a
memo, withfomas, on howto file an Article 78
proceeding and inmates contemplating filing
such an action should request a copy of our
fonn memo. This article addresses one
common mistake made by inmates in pro 5e
Article 78 proceedings that can result in
confusion, delays, and even a risk that the
proceeding will be dismissed. This mistake
occurs in connection with the service ofwhat
is called the Order To Show Cause.
A pro 5e inmate Articlc 78 is
connnenccd by filing an Order To Show
Cause, or ose, with the court, together with
a Petition and other supporting documents.
The OSC that you send to the court, however,
is not an actual OSC, but only a proposed
OSC. That is, the ose that you send to the
court does not become an actual order of the
court until and unless it is accepted,
completed, and then signed by the judge.

Remember, only a judge can issue an order,
including an OSC.
An ose is addressed to the
respondent(s) - the person or persons you are
bringing the Article 78 against - telling them
that they have been sued, briefly what they
have been sued about, and ordering them to
"show cause" at a specific time and place
(called the "return date") as to why the relief
you are seeking should not be granted. Since
the OSC is addressed to respondents, it must
be served upon them, as well as upon the
Attorney General who will represent them.
The proposed OSC that you send to
the the court will have blank spaces for the
court to fill in both the return date and the date
by when you must serve copies of that OSC,
along with the Petition and other supporting
papers, upon the respondent(s) and the
Attorney Genera\. If the court accepts your
papers, the judge will fill in the blanks on the
ose, sign it and then return it to you tor
service. Be aware that many courts often
will not even use the proposed OSC you
send them, and instead have and will use
their own OSC form.
Once the court sends you the signed
ose, it is then your responsibility to serve
copies of it as directed by the court which
typically requires serving the papers (by mail)
upon the respondent(s) and the Attorney
General. You must do this by the deadline
given to you by the court in the OSC. Finally,
after service you must then tile with the court
proof of such service (called an "affidavit of
service").
The common mistake occurs where
an inmate serves respondent(s) and the
Attorney General with copies of the
proposed OSC, instead of with copies oCtile
actual OSC signed by the judge.
This usually occurs where inmates
simply serve respondent(s) and thc Attorney
General with copies of everything they file
with the court, at the same time they file them
with the court. Serving copies of a proposed
OSC serves no purpose at all. Any fuilure to
serve the respondent(s) and the
Attorney General with copies of the actual
signed OSC and/or to file an Affidavit of
Service swearing that you served copies ofthe
actual signed OSC means you have not
propcrly complied with the rules.

It is easy to avoid this mistake if you
just always remember that you do not need to
serve anything upon the respondent(s) and the
Attorney General at the time you first send
your papers to the court. Instead, always wait
until the court accepts your papers, signs the
asc, and sends that signed asc back to you
for service.
If you follow these four basic steps
you should not have a problem:
(I)

(2)

File your papers with the court, which
includes a proposed asc;
Wait for the court to send you an
actual completed and signed asc,

(3)

(4)

directing you to serve the
respondent(s) and the Attorncy
General by a certain date;
Comply with the asc by fi>lIowing the
directions on the signed asc which
typically require serving (by mail)
copies ofthe actual signed asc, along
with copies of your Petition and other
supporting papers, upon the
respondent(s) and the Attorney
General; and
File an Affidavit of Service with the
Court, to prove that you properly
complied with the above, that you
completed service in a timely manoer.

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EDITORS: JOEL LANDAU, ESQ., KAREN MURTAGH-MONKS, ESQ.
CONTRIBUTORS: TOM TERRllll, ESQ., MICHAEL CASSIDY, ESQ., BETSY STERLING, ESQ.
COPY EDITOR: ALETA ALBERT PRODUCTION: FRANCES GOLDBERG
EDITORIAL BOARD: TOM TERRIZll, ESQ., BETSY STERLING, ESQ.,
KAREN MURTAGH-MONKS, ESQ.

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