RECEIVED

NOV 05 2003
PLSNV·AlBANY

,
VoL 14 Number 3: October 2004 Published by Prison"",' Legal Services of New Yorl<

'"

SECOND CIRCUIT ISSUES:
SEVEN LANDMARK DECISIONS IN FA VOR OF PRlSONERS
Second Circuit Finds in Favor ofPrisoners in
Six PUlA Exhaustion Ca.ves
The United States Court of Appeals for the
Second Circuit recently decided six prisoner cases,
all involving different aspects of the PLRA
exhaustion requirement. All six cases were decided
unanimously in favor ofthe prisoners. In five of the
dl-'Cisions, a single panel ofthree judges made it clear
that there are limitations on DOCS' ability to use the
PLRA exhaustion requirement as a defense to
prisoner cases. [n the sixth case, a different panel
found that the prisoner-plaintiff had demonstrated
sufficient justification for not exhausting.
Judges Calabresi, Sack, and District Judge
Pauley, sitting by designation, decided the five cases,
Judge Calabresi writing three decisions and Judges
Saek and Pauley each writing one. Collectively, these
cases reject the "strict complianee" and "total
exhaustion" rules that have been embraced hy some
court~, acknowledge that threats of rctaliation may
estop DOCS from asserting a failure to exhaust
defense, and hold that "available" administrative
remedies have been exhausted if a prisoner receives
a favorable resolution of a grievance at any level.

Metropolitan Detention Center (MOC) in Brooklyn,
New York, when he was attacked by another inmate,
who plunged a tile cutter into his neck and slashed his
amde continued on }XJge 2...

Also Inside...
Sim v. Morton, DOCS Loses Qualified
Immunity Defense in Due Proce£s
Inadequate Notice Case . . . . . . . . .. page 8

"Il...tricte<l Diet"
DOCS Loses Ground . . . . . . . . . • .. page 16

Sex Offender Treatment Programs
When do They Violate the
Fifth Amendment? . . . . . . . . . . . . .. page 18

Hepatitis C
Court Upholds DOCS Guidelines. .. page 19
"Five Perc,eoters"
DOCS Issue. New Proloools
,

page 20

People v. Richardson: Are you
Entitled 10 Prior Sentence Credil? .. page 31

Subscribe 10 Pro Sel See bod page for tktfJils

Jolmson v. Testman,- - -F.3d- - -, 2004 WL
1842669 (2d Or.) (August HI, 2004)

Plaintiff Johnson

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Pro Se Vol. 14 No.3

POliO 2

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face and upper torso. The attack was allegedly incited
by a correction officer, defendant Testman. Prior to
the attack, Johnson was in !be barber shop
demollStrating a type ofhaircut to one ofthe barbers.
When Officer TestnlJin saw Jolmson with the bair
clippers, he asked Johnson what he was doillg and,
after hearing the reply, told the inmates that he was
closing the harbershop for the day. Apparently, when
Testman was asked hy another inmate why the barher
shop was closed and he couldn't get his hair cut,
Testman said, "ifyou bave a problem 'with not being
able to get a haircut, take it up with Johnson.''' Soon
thereafter, Johnson was attacked by this inmate.
Later that same day, a second defendaot, CO James,
apparently cuffed Johnson behind his back and left
him in a cell for seven hours.
JohllSon was charged with fightillg and placed in
the SHU to await a disciplinary hearing. At the
hearillg, Johnson described the circum~tances
surrounding the attack, but nevertheless was found
guilty and sentenced to an additional21 days in SHU,
30 days loss of good condnct time, and one year's
loss of visiting and commissary privileges. Johnson
appealed the disciplinary disposition, again
recounting Testman's conduct, and when his appeal
was denied, he sought review by the Bureau of
PriSOIlS' (BOP) Central Offiee. The Central Office
found in Johnson's favor and remanded the ease to
the MDC for a new hearing.
Johnson's claims against defendant James
eentered around the allegation t1lat James had left him
cutfed behind his back ill his cell for seven hours.
Johnson alleged tIlJltJames then issued a misbehavior
report charging him with refusing to obey a staff
order, wherein James alleged that Johnson had
refused to he rear-cutfed. After heing t(mnd guilty of
the charge and being given a penalty ofa 30·day loss
of visitillg and commissary privileges, Johnson
appealed. His appeal was denied by the facility

warden, but when he sought review from the
Northeast Regional Offiee, his appeal was granted 10
the exteut that MDC was directed to conduct a
further investigation. MOC failed to do so and
Johnson subsequently filed another appeal with the
Regional Office, which then elected to expunge the
charges based, among other things, on laek of
sufficient evidence.
Johnson sued both Testman and James, who
responded by filing a motion to dismiss, or in the
alternative, a motion for summaryjudgment, alleging
the defellSe of qualifil"A1 immunity and tllJit Johnson
did not exhaust his administrative remedies with
respect to his e1aim against Testman. The district
court dismissed Johnson's entire complaint withont
prejudiee, finding that he had tailed to meet the
PLRA exhaustion requirement JohllSon had argued
that defendant James had waived the e.xhanstion issue
by failing to raise it, but the court, adoptillg a rule of
"total exhaustion," found that "Johnson's failure to
exhaust his claim against Otlicer Testman requires
that I dismiss the entire case."
On appeal, the Second Circuit addressed the
following issues:
I) whether Johnson's appeal to the BOP exhausted
his claims against Testman;
2) whether Johnson's appeal to the regional office
was sufficient to exhaust his claims agaillSt
James;
3) whether James waived the affinnative defense of
failure to exhaust; and
4) whether the PLRA mandates a rule of "total
exhaustion.~'

Arguing for the plailltiff, Mary Lynne Werlwas
of the Legal Aid Society, Prisoners' Rights Project,
asserted that ifa prisoner reasonably believes he has
properly pursued his complaint, the "exhaustion"
requirement should not automatically doom his ease.
The Court agreed, holding that a prisoner who may
not luwe followod the prison procedure procillely
may still meet tile clIllallStion requirement if he

Pro
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It

s.. Vol 14 No. 3

relI.'«lllllbly believoo" he collld Ilroooed a~ be did.

The question of whether Johnson was justified in
believing that he properly pursued the grievance
process was remanded to the district court for a factfmding hearing.
With respect to the question of whether
Johnson's appeal to the regional office was sufficient,
the Court responded by holding that an uncounseled
inmate's appeal should be held to no higher a
standard than that which is rcquired in the Rules of
Notiee Pleadings, which mandate "that a complaint
'must contain allcgations sufficient to alert the
defendants to the nature of the claim lIlJd to allow
th~'1ll to defend against it.'" Tile Conn set tbe
standard to be IIllOO in determining utbe substalllCe
of IIll illlllllte's slIbmlll.'linll$ lire .'lutllclcllt III order
to llxhall.'lt by stilting thllt "Illn order to exluulIlt,
Inllllltes mllSt provide enongb infOfIIIlltio!lllballt
the OOndilct ofwhich they oomplain to alinw pn'lOll
officials totalw appropmte RSpo!l.'1ive moosu-."
Judge Calabresi reasoned that a grievance raises an
issue sufficiently to exhaust it as IOllg as the prisoner
"object[s] intelligibly to some asserted shortcoming."
The Court remanded the case to the district court on
this issue also, fmding that the questioll of whether
Johnson's disciplinary appeals Were enough to advise
the prison administration as to the substance of his
complaints was a question of fact that is
appropriately addressed by the district court. ne
Coun also beld tliat tile eJIllllllIstiOI:! defelL'Ie is au
atllfllllltrve d~kllllle wlli~1I eanbe wlllivoo, and that
defendallt J _ wlilived the defense by liIilieg to
raise it. Since th" question of whether Johnson
exhauste.d was remanded to the district court, the
Court did not have to address the issue of "total
exhaustion," but it noted in a footnote that it had held
in the Ortiz case (see below) "that a rule of total
exhaustion is not required by thc PLRA, and that
exhausted claims may be allowed to proceed while
unexhausted claims are dismissed."

Pog.3

GiallO v. Goord, _. - F.3d. - -.,2004 WL 1842652
(211 Clr.) (Aug. Ill, 2004)
The lawsuit in Giano v. Goord centered around
Giano's allegations that certain guards tampered with
his urine tests in retaliation for his success in a prior
lawsuit and his success in defeating a prior
disciplinary charge. Because of the alleged
tampering, Giano was charged with, and ultimately
found guilty of, a drug-related disciplinary charge.
He appealed his hearing, alleging that the charges
were retaliatory, but the hearing was affirmed. He
never filed a grievlllJce regarding the alleged
retaliation.
Initially, Giano's case was dismissed by the
district court, which found that he had failed to
exhaust his administrative rcmedies by L'liling to
address complaints of retaliation through thc inmate
grievance system. The Second Circuit vacated the
district court's d~.cision, holding that the PLRA did
not require Giano to exhaust his claim of retaliation
becausc such a claim involvcd "individualized
retaliatory actions against an ilUnatc" and did not
constitute a claim brought '''with respect to prison
conditions.''' However, thc Supreme Court then
decided Porter v. Nussle, 534 U.S. 12 (2002),
holding that rctaliation claims were subjed to the
PLRA cxhaustion requirement. Thus, when Giano's
case cam" b"fore thc district court for the second
time, it was again dismissed for failure to exhaust.
Elena Paraskevas -Thadani of Katten, Muchin,
Zavis, & Rosenman (Arthur tinkler, also on the
brief) presented oral argument on beha If of Giano,
and asserted that Giano had properly raised his
complaint~ in the context of an appeal from a
disciplinary proceeding rather than by filing a
separate grievance. The COlin found that tllere are
certain "spoeiaJ circulWlta_" in wbich a
pnwDcr's fallere to comply with adminilltmtivc
proeooumJ requiremeuta may be jutifled. The

Pro Se Vol. t4 No. 3

Page 4

court did not provide a broad statement as to what
constitute-~ such a justification, but Judge Calabresi,
in applying what he called a "reasonably believed"
standard, found that the rules governing what issues
had to be appealed in a disciplinary hearing versus
what issues should be grieved were so unclear that
Giano was justified in pursuing his issue through the
disciplinary process and not filing a grievance. The
Court found that unless, on remand, DOCS indicates
that it will allow him to file a late grievance, his case
should go forward.
Ortiz v. McBride, - - - F.3d - - -, 2004 WI..
11142644 (2d Or.) (Aug. 111,2004)
In Ortiz v. McBride, Ortiz, who was incarcerated
at the time at Arthur Kill Correctional Facility, was
charged with drug smuggling and sale, based solely
on confidential information. He was sentenced to 90days SHU confinement, the first three weeks of
which, Ortiz alleged, hc was confmed in his cell for
twenty-four hours a day and subject to harsher SHU
conditions tban those imposed upon other inmates.
Ortiz' disciplinary disposition was ultimately
reversed by Donald Selsky, without explanation.
Ortiz sued, alleging a violation ofhis due process and
Eighth Amendment rights.
The defendants moved to dismiss for failure to
state a claim and the district court granted the motion
holding that, although there may have been an issue
with respect to the veracity of the informant, since
Ortiz' administrative proceeding had been reversed,
he "obtained all that could be obtained on that issue."
The court went onto hold that, with respect to Ortiz'
complaint rcgarding the conditions of his
confinement, since his confinement was only for 90
days, it did not rise to the level of "atypical and
significant hardship." Finally, the court held that
although Ortiz appeared to have exhausted his "main
issue," the evidence before the court was unclear as
to wbether he had exhausted "with respect to these

other issues."

The questions before the Second Circuit were:
I) whether Ortiz sufficiently pled a supervisory
liability claim;
2) whether Ortiz' factual allegations concerning
SHU stated a cognizable due process claim;
3) wbether Ortiz exhausted bis Eighth Amendment
claim; and
4) whether the PLRA requires "total exhaustion."
Initially, Ortiz conceded that he had not
sufficiently pled a supervisory claim, and thus the
Court limited its review to the remaining questions.
As to the question of whether Ortiz had set forth
sufficient allegations to establish a due process claim,
thc Court noted that to do so, Ortiz had to establish
two things: first, "that hc possessed a liberty interest"
and second, "tlmt the defendant(s) deprived him of
that intere.~t as a result ofinsufficient process." Ortiz
was confined to SHU for 90 days. Although the
Court acknowledged that it has held that "with
respect to 'normal' SHU confinement," IOI-days
does not meet the Sandin "atypical and significant
hardship" test, the Court pointed to a number of
cases where it has held that the duration of
confinement is not the only factor to be considered,
"'since especially harsh conditions ~'lldured for a
brief interval... might... be atypical.''' The Court
went on to hold tlmt smce Ortiz lllleged tlmt he
was subjected to oollditioa~ in SHU which were
001 "oormal," (i.e., fol' at lea..~t part of his
confinement, he WIIS !rept in SHU fol' 24 lIours a
day, oot permitted his one-boul' daily exercise, alld
wa~ prevented from slloweriug ilr "'weelill at a
time'''), he had sufticienily Illieged tliat the 904ay
SHU sentence WIIS "atypicallllld sigllikallt." The
Court also found that Ortiz adequately alleged tbat
the SHU sentence was imposed without sufficient
process by asserting that tile "some evidence"
standard was not met.
With respect to his Eighth Amendment claim, the
Court found that there was no evidence in the record

1'.... Se Vol 14 No.3

that he had exhausted. Although he had complained
once orally and alleged that when he did complain he
was threatened, the Court held that, unlike the
plaintiff in Hemphill he did "not contend that the
threats from guards prevented him from filing a
grievance or otherwise rendered DOCS grievance
procedures unavailable," and thus, he did not
exhaust.
Beeause the fmding of the Court on the Eighth
Amendment claim resulted in a determination that
Ortiz exhausted one cia im but not the other, the
Court then addressed the issue of"total exhaustion."
John Boston of the Legal Aid Society, Prisoners'
Rights Project, represented Ortiz, and arh'ued that the
"total exhaustion" rule which is applicable to habeas
corpus proceedings should not be extended to PLRA
exhaustion cases. The Court agreed. In rejecting the
"total exhaustion" rule, under which a prisoner's
complaint that contains any unexhausted claim has to
be dismissed in its entirety, Judge Sack wrote,
"[s]ection I 997e(a) clearly instruct~ that an action
such as Ortiz's containing exhausted and unexhausted
claims should not have been 'brought.' But we do not
think it follows that the only possible response to the
impermissibility of the bringing of the action is to
dismiss it in its entirety-- to kill it rather than cure it."
The Court then turned to the legislative history,
observing that nothing in the history indicates that
Congress considered the question. The Court
concluded that "[w]e do not think that a requirement
that district courts dismiss 'mixed' actions in their
entirety would help achieve Congress's goal of
improving the quality of, or judicial efficiency in,
disposing of prisoners' §1983 suits." First, such a
requirement would create an incentive for prisoners
to bring separate claims in separate lawsuits. Second,
plaintiff.~ whose claims are dismissed would simply
re·file their claims, omitting the unexhausted claims.
Third, when the issue of exhaustion presents
challenging questions for the court.~ to decide,
efficiency would not be served by torcing the court to

PageS

consider the issue and familiarize itself with the
background of the case twice. The Court
acknowledged tbat othcr courts, specifically the IOIh
Circuit, have held otherwise, but explained that it
disagreed with that Circuit's habeas eorpus aualogy.
The Com concluded by rejecting a rule of total
cxheuoon saying, "[a]t the end ofthe day, then,
we do nottllillk thet requiring district courts to
dismiss the entirety of noy prisolHOooioons
action thet contains exhamled aoo unexhansted
clllim.~, and thereby requiring prisoners to
instilnte their actiom contallling only the
exhamted clllims in federal OOllrt alI over aguin, i.~
a meaningful WilY to 'rOOlICC the qoontity and
improve the qualIty of prisoner som,' or to 'help
briag reliefto II civil jnstice system overburdened
by fiivolons prisoucr IIlwsidls.",

Abney v. McGinnis, • - • F.3d • - ., 2004 WL
1842647 (2d Cir.) (Ang. 18,2004)
Abney v. McGinnis involved an inmate, Horace
Abney, who, after having surgery on his teet, was
prescribed orthopedic shoes and arch supports to
help alleviate his pain. When he didn't receive the
shoes and arch supports, he filed a formal grievance
with the Inmate Grievance Resolution Committee
(IGRC). The IGRC recommended that his grievance
be granted and urged "expedited action." The
Superintendent agreed. Over a year passed and
Abney still had not been provided with proper fitting
areh supports, and again he tiled a grievance. Again,
the IGRC recommended the grievance be granted and
again, the Superintendent agreed. Two more months
passed without the proper footwt'.ar being supplied
and Abney filed a third grievance, which was granted
by the IGRe and accepted by the Superintendcnt.
Another two months passed and Abney had yet to
receive the proper footwear. In response, he wrote a
letter to DOCS Commissioner Goord and, on the
same day, filed a §1983 complaint.

Page 6

After the complaint was filed, Abney continued
to complain about not being provided tbe proper
footwear and DOCS continued to fail to provide it. In
all, Abney filed four formal grievances over a 21month period, all of which resulted in favorable
rulinb'S by both the IORC and the Superintendent.
Abney's complaint was dismissed by tbe district
court for failure to exbaust administrative remedies.
The district court did no! address the issue ofwhether
any administrative remedies were "available" to
Abney after he had received favorable decisions on
his grievances but then learned, after the time to
appeal such a grievance had passed, that the
favorable decision would not be implemented. Rather,
the district court simply held that "Abney's failure to
appeal the Superintendent's favorable ruling
immediately to the Central Offiee Review Committee
(CORC) in Albany, New York, meant that his
administrative remedies were unexhausted." Abney
appealed.
The question before the Second Circuit was
whether a prisoner is required to appeal a grievauce
to the CORC if his b>rievance has essentially been
granted at the Superintendent's level, but the prison
administration has failed to provide the granted relief.
DOCS regulations give inmates only four days to
appeal for noncompliance of a grievance decision.
Therefore, by the time Abney received his favorable
rulings and realized that the prison was, once again,
not going to follow through on its promise, the time
for appeal had expired. Michael Cassidy, of
Prisoners' Legal Services, representing plaintiff
Abney, argued that it would be "counterintuitive to
require inmates who win during the grievauce process
to appeal their victories." Besides, the time for Abney
to appeal had long since Ilassed and thus there was no
administrative remedy "available" to him. The
Second Circuit agreed. Judge Pauley found that, in
some eirclUlllltanees, the behavior of prison
officials Clln render administrative remedies
unavailable. Referring to Abney's sitnlltion llll a

Pro Se Vol. 14 No. 3

..Catch-22," Judge Pauley foRad that "[w]bere, as
here prison regulations do IIOt provide a viable
mechanism for appealing iIIlplemelllation tlillures,
prisoners in Abney's sitnation have fully
exha1llltOO their available remedies....
Hemphill v. New Yom, - - - F.3d - - -, 21104 WL
1842658 (2d Cir.) (Ang. HI,2004)
In Hemphill v. New York, 2004 WL 1842658,
Hemphill claimed that he was subjected to excessive
force by officers at Green Haven Correctional
Facility and that he was denied adequate medical
attention after the alleged use offorce. Hemphill also
alleged that officers had threatened him ifhe pursu,xl
the matter. The defendants moved to dismiss on the
ground that Hernphill failed to exhaust his
administrative remedies. He did write a letter to the
Superintendent regarding the alleged assault but it
was not a "formal grievance" and he did not submit
it until five months after the incident. He never
received any reply from the Superintendent to his
letter.
In the district court, Hemphill argued that the
court should deem the letter to have been a grievance
for administrative exhaustion purposes. The district
court judge, Judge McMahon, denied this request.
Judge McMahon found that DOCS has a three-tier
grievance proce.~s and, the court held, an inmate has
not exhausted his administrative remedies until he
follows through all three levels of the grievance
procedure. Hemphill did not file a "Level I"
grievance. The court found that his letter to the
Superintendent could not be considered a Level 2
appeal "because he had never filed a grievance that
could be beard at the lowest level." The court
concluded that, regardless of the fact that he sent a
letter to the Superintendent, he never appealed
anything to CORC.
In rejecting an estoppel-type argument, the lower
court found that Hemphill could not be heard to

P.... Se VoII4N... 3

complain regarding the Superintendenl's failure to
respond to his letter because Hemphill himself"failed
to follow the expedited grievance procedure that
prisoners are afforded when they are alleging any
form ofharassment--including use ofexcessive force
by a corrections officer. 7 N.Y.eR.R. Sec.
701.l1(a) and (b). Under this expedited procedure, a
grievance is filed with both the Inmate Committee
and the harassing employee's supervisor. If t11e
grievance raises a bona fide harassment issue (as this
one would have), Levell review is bypassed and the
matter is sent directly to the Superintendent for
review." Had Hemphill utilized this procedure, the
court held, any failure by the Superintendent to
"render a decision on the matter within twelve
working days could have been appealed to Albany,
thus completing the grievance cycle and exhausting
his n:.medies in a mattcr of weeks." The lower court
also held that, even if Hemphill's letter could be
interpreted as a grievance, it was untimely, since he
did not send it until almost five months after the
incident.
The issue before the Seeond Circuit was whether
a letter, which Hemphill sent to thc facility
Superintendent concerning the assault, to which he
received no reply, constituted exhaustion. Michael
Cassidy, of Prisoners' Legal Services (Joel Landau
and Karen Murtagh-Monks, on the brief) presented
oral argument on behalf of plaintiff Hemphill,
asserting that defendants should be estopped from
asserting exhaustion by either their threats of
retaliation or the Superintendent's failure to
investigate. In addressing these issues, Judge
Calabresi foull tbal a pnooller wllo did DOt file a
grievance because he was tllreatelled by staff
wculd lie deemed 10 have IlO available remedy if a
pet'S(l1i of"ordillOry firmlleSS" would lie deterred
from 1IS!ug tile grievance process, awl that slrell
threats may also j lIStify a pnooner's compillilling
in some other fashion rather than using tile formal
"noon grievance system. Expanding on their

Poge 7

decision in Ziemba v.Wemer, 366 F.3d 161 (2d Cir.
2004) (reported in the last issue of Pro Se), Judge
Calabresi wrote: "threats made by prison officials
allegedly made against the plaintiff may in some
instances be sufficient to estop the government from
asserting the affirmative defense ofnon-exhaustion."
In directing that the ease be remanded for further
proceedings in the Southern District, where the claim
had been dismissed, Judge Calabresi wrote that "we
cannot say at this time that the remedies that
Hemphill failed to pursue were actually available to
him." Hemphill also made the argnment that he
sliollld not he ~ forMing to foUow DOCS
expeditro grievance pmcoonres since the
procedures were extremely conlillSing. hi respo_,
the Second Circuit iastmeted the lower court to
examine 08 relliaud "this )Il1SSible jllStilleation for
Hemphill's fuilnre to follow IIOrmal grievance
procedure. "
The five e11ses were argued together on May 27,
2004 and all five decisions were issued on August
i8, 2004.
Rodriguez v. Westchester County Jail
Correetio!lll.i Dep't., 372 F.3d 485 (2d Or. 2004)
The sixth PLRA ease, decided by a different
panel of judges on June 24, 2004, found that,
although the plaintiff had indeed not exhausted, he
had demonstrated a suflicient justification for failing
to do so. "The issue is whether jilStifiahle
circumstances may somctimes excuse a prisoner's
faihlnl to exhaast administmtive remedies when
challenging collditiollS of confinement. We
oondllde that eximilStioll may sometimes lie
excnsOO and should lie ellclISOO in this ease."
In this case, Rodriguez did not exhaust his
excessive force claim because he didn't think he had
to. He argued that he did not believe that the PLRA
covered excessive force claims. The Second Circuit
noted that it was under the same impression when it

P.... Se Vol. 14 No.3

decided the case ofNussle v. Willette, 224 F3d 95
(2d Cir. 2000). A1thoughNusslewas later overturned
by the Supreme Court, Porter v. Nussle, 536 U.S.
516 (2002), the Second Circuit notcd that
Rodriguez's belief was "reasonable because it was
thereafter entertained by a panel of this Court (until
later rejected by the Supreme Court)." Though
exhau.~tion would have been required by the Supreme
Court's decision in Porter, Rodriguez was out ofthe
jail by that time and administrative remedies were uo
longer available to him. Becausethe Second Circuit's
decision in Nussle came after Rodrigue:/; filed his
case, he did not argue that he actually relied on the
decision, but rather that he was under the impression
that excessive force was not a "prison condition," a~
set forth in the PLRA. TillIS, it appears as if the
Court, ill this case, effectively holds that a
reasouhle lui!lta.1w of law excuses eWlISoolI.
Se;:o/llJ Circuit Dellies QlUllifred Immunity to
DOCS 011 Due Process Issue ofIlIlIIleqllate Notice
and NOli-Disclosure ofEvidence
81m v. Mol1on,. - -F.3d- - -, 2004 WL 18327779
(2d CII".) (Allg. 17,2(04)

In another unanimous decision, the Second
Circuit Court of Appeals recently held that DOCS
was not entitled to the defense of qualified immunity
in a case where the plaintiff, Rubin Sira, was given
inadequate notice ofthe disciplinary charges against
him. In addition, the Court held that DOCS
improperly withheld certain evidence from inmate
Sira which prevented him from being ahle to defend
himself from the charges. The Court did, however,
grant DOCS qualified immunity on inmate Sira's
challenge regarding the sufficiency of the evidence
presented agaillSt him. In doing so, the Court has now
clarified the law in the area ofthe use of confidential
information and, most probably, precluded DOCS

from using the defense of qualified immunity on this
issue in the future.
Background

The incident at issue dates back to January 2000,
when inmate Sira, together with many other inmates
who were housed at Green Haven, was suspected of
being involved in a planned work stoppage, also
referred to as the "Y2K strike." Many inmates were
written up, transferred, or otherwise disciplined for
their suspected involvement in planning the alleged
strike. Rubin Sira was one of those inmates. Sira
received one ofthe rather generic misbehavior reports
which were issued to inmates suspected of heing
involved in planning the strike. The report alleged
that "during the course of an investigation into a
planned inmate demonstration at [Green Haven] in
which inmates would conduct a work/program
stoppage on or about January 1,2000, Inmate Sira
has been identified through confidential sources as
having urged other imnates to participate, organized
inmates to participate and threatened inmates to
participate." The author ofthe report, Lt. Schneider,
in response to specific questions concerning tbe
details ofthe incident, stated that
" (1) the date of the charged incident wa~
January 19, 2000;
(2) the incident time was 10:15 a.m.;
(3) the incident location was Green Haven
Correctional Facility; and
(4) no persons other than Sira were involved in
the incident."

The Hearing
At his snbsequent disciplinary hearing, Sira pled
not guilty and requested dismissal of the charges
because the misbehavior report did not provide him
with adequate notice ofthe alleged mishehavior. Sira

Pro Se Vol 14 No. 3

claimed that the report fuiled:
" (1) to identifY any person whom he had threatened
or organized;
(2) to indicate where in Green Haven the alleged
misconduct had occurred; and
(3) to provide clear notice ofthe date ofhis alleged
misconduct, since the incident date on the
rejlort was marked January 19, while the body
of the report suggested that the strike had
occurred sometime earlier, possibly hefore
January 1."
Sira noted that he had no disciplinary history and
offered an alibi that, on the alleged date of the
incident, January 19, he was in the Health Services
Unit.
The Hearing Officer, Capt. Morton, although
admitting that the charges were "very vague," in that
the report could have meant tllat Sira actually
engaged in the alleged misconduct on January 19, or
that he was merely identified on January 19, refused
to dismiss the charges. Morton stated he would call
Lt. Schneider in order to allow Sira to ask questions
concerning the report, and that he would interview the
confidential sources outside of Sira's presence.
The Confuk1l1ioJ 1l!foFmatioll

Lt. Sclmeider testified, in Siru's presence, that
prison officials had been investigating the alleged
Y2K strike for the past month and had reeeived
confidential information that Sira had a leadership
role in enforcing participation in the strike. Schneider
admitted that no one had indicated that Sira had
threatened any speeific inmate hut rather, source.~ had
stated that Sira made "open threats to anyone who
would go against the strike." Schneider did not give
any details as to when the threats were allegedly
made or what they encompassed. "Lt. Schneider did,
however, clarifY that the report's referencetoJannary
19 at 10: 15 a.m. alluded to the date and time she filed

Pogo 9

the disciplinary charges, not the date and time ofany
misconduet."
The Hearing Officer then heard testimony from
various correctional officials regarding the
confidential testimony they had obtained regarding
Sira's alleged involvement in the Y2K strike. The
first confidential informant had apparently attended
a meeting where he was told that Sira would force
others to be involved in the strike on C-Block, but
this informant did not place Sira at the meeting nor
did he report ever seeing Sira participate in any
strike-related activities.
The second confidential informant reported "that
Sira, who was housed in Block C, was one of the
strike coordinators and that he met with other gang
leaders at night in Building 12 and in the morning in
the pre-release center to organize strike activities."
However, this informant "did not have personal
knowledge of these facts, nor had he ever personally
witnessed Sira engaging in any strik~>"related
activities."
The third piece of confidential information was
an unsigned letter in which the author claimed to
have overheard one unidentified prisoner tell ing
another that an inmate named "Ruben" was going to
"take over" the Dominicans.
The fourth piece ofconfidential information was
an undated letter that had been passed on to Lt.
Schneider from the Superintendent, identifYing
"Ruben Cira" as one of the strike's organizers. Lt.
Schneider did not know who authored the letter. The
Hearing Officer did not ask Lt. Schneider to inquire
how this fourth informant had learned the
information disclosed in the letter, or "even if it was
based on direct knowledge or hearsay."
Finally, the fifth piece of confidential testimony
was a statement hy an inmate that he bad witnessed
Sira coercing other inmates into participating in the
demonstration. However, the record disclosed that
"no effort was made to identifY the inmates

Pro Se Vol. 14 No.3

Page 10

purportedly threatened by Sira." Nor did the Hearing
Officer inquire as to wheth~'f this informant could
"detail what he heard or saw that led him to
characterize Sira's conduct as coercive or
threatening." Thc Hearing Officer did ask the officers
involved whether any ofthe informants would appear
before him to testilY and was told that none of them
would agree to do so for fear of their safety.

(5) the defendants failed to disclose the confidential
documentary evidence against him.
The defendants responded by asking for judgment on
the pleadings based upon the defense of qualified
immunity. The district court converted the
defendants' request to one for summary judgment
and denied it, finding that Sira had established a due
process violation and that no reasonable officer could
have thought otherwise. Defendants appealed.

The Disposition
The Secm.d Circuit Decision

Although he understood that the identity of the
confidential informants could not be disclosed to him,
Sira requested that the substance of the confidential
information be disclosed in order to allow him to
present a defense. The Hearing Officer denied his
request and found him guilty of demonstrating but
not guilty ofmaking threats. He sentenced Sira to six
months SHU, together with loss of privileges and six
months recommended loss of good time.
Sira appealed the disposition on numerous
grounds, including inadequate notice and lack of
substantial evidence. The disposition was reversed on
administrative appeal because "confidential evidence
failed to support [the] charge," but by the time ofthe
reversal, Sira had served the entire six month SHU
sentence.
The Federal Complaint

Sira sued, ciainling that the defendants had
violated his rights to due process, in that:
(I) thc disposition was based upon insut~ficicnt
evidencc;
(2) the defendanL~ failed to providc him with
adequate notice of the charges;
(3) the defendants denied him access to confidential
evidence relevant to his defense;
(4) the defendants failed to assess the reliability of
various sources ofconfidential information; and

Initially, the defendants challenged the district
court's decision to convert their motion for judgment
on the pleadings to one for summary judgmcnt The
Second Circuit found that the lower court properly
converted the defendants motion. Unless there is a
showing ofprejudice, ifa motion for judgment on the
pleadings includes materials "outside the pleadings"
and those materials are not "excluded" by the court,
then the court is required to convert the motion to one
for summary judgment. In this case, the defendants
attached a number of documents to their motion that
were not incorporated into the complaint, including
the hearing transcript. Since the district court did not
exclude those documents and since defendants could
not demonstrate any prejudice, the Court found that
it was proper, indeed mandated, that the court
convert the defendants' motion to one for summary
judgment.
In analyzing whether a defendant is entitled to
qualified immunity, a court must answer two
questions: first, "whether the facts, viewed in the
light most favorable to the plaintiff; establish a
constitutional violation. If they do not, the plaintiff
may not recover because he has suffered no wrong
cognizable under §1983." If, howevcr, the fact.~ do
establish a constitutional violation, the court must
then ask "'whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation

P .... Se Vol 14 No. 3

he confronted.'" The Court found that Sira presented
three due process violations:
" (I) inadequate notice;
(2) non-disclosure of confidential evidence relied
on to support the disciplinary ruling, and;
(3) insufficient evidence of misconduct,"
each of which had to be addressed in terms of
whether the defense of qualified immunity applied.

Inadequate Notice Is a C1ear(p Established
Con.stitutional Violation
Relying on Wolffv. McDonnell, 418lJ.S. 564
(1974), the Court initially found that the law is
clea.rly established that due process requires that the
accused receive adequate notice of the charges.
Quoting from one ofits recent cases, the Court stated
that notice serves to "compel 'the charging offker to
be [sufficiently] specific as to the misconduct with
which the inmate is charged, to inform the inmate of
what he is accused of doing so that he can prepare a
defense to those charges, and not be made to explain
away vague charges set out in a misbehavior
report. '" Taylor v. Rodriguez, 238 F.3d 188, 192-93
(2d Cir. 200 J). The Court highlighted the importance
of such notice in a ease such as this one, where a
large portion of the disciplinary hearing was held
outside Sira's presence. The Court noted that the
charges needed to ioclooe some "!adual
speeificity" reganiiog the aUegoo misbehavior,
rather than settillg forth "vague or conclmwry"
charges. In assessing the mishehavior report issued
against Sira, the Court found that there were no
specific facts to support the conclusory aUegation
that Sira was guilty of urging others to participate in
the Y2.K strike. Although the defendants argued that
the error with respect to the actual date and time of
the incident was of"no import," the Court disagreed,
finding that a reasonable person could have believed
that, since the date of the incident was listed as

Pogell

January 19, this indicated the time of the alleged
misbehavior.
The Court went on to say that not only did the
misbehavior report misidentifY the time and date of
the incident, "[i]t provide[d] no notice as to the
specific site or sites of his misconduct; it [did] not
indicate the words or actions he employed in
purportedly urging, organizing, or threatening
inmates to participate in the Y2K strike; and it
identifierd]no inmates toward whom his actions were
dir~'Cted." The Court concluded, "[f]rom the notice he
was given, Sira could only guess whether he was
being charged with making a single objectionable
statement to one inmate or a host of statements to
groups of inmates; whether his conduct allegedly
occurred on a specific day in January or over the
course of several weeks; and whether he had to
defend against miseondnct in the mess, the prison
yard, his eell block, or some other location."
The Court cautioned that its decision did not
mean that every single detail has to be laid out in a
misbehavior report and that officials will lIot be
expedoo to pi'ovide notire of!ac!s that are beyond
their OWll !mowloogc, hut that "there must be
sufficient fllCtlllll specificity to permit a mlllOliable
person to underetllnd what condnet is at issue so
that hc nlaY identitY relevant evidellCe and present
a defense."
The defendants argued that any notice errors
were cured by the testimony from Lt. Schneider at
the hearing, which identified some ofthe substance of
the confidential information. The Court rejected this
argUment, finding that it is doubtful "that
inadequate written notice can be euroo merely
throllgh or.d disclosures at the disciplinary
hearing. Certainly such curative disclosures would
be insufficient unless the inmate was also afforded
the meaningful opportunity to prepare a response to
the new information."

Page t2

A Reasonable Officer Would Have Known Thill
Failing to Provide Adequate Notice ofthe
Charges Was Unconstitutional
The Court rejected the defendants' assertion that,
even though the law may have b~-en clearly
established in this area, a reasonable officer could
have believed that it would satisfy the notice
requirement to provide a misbehavior report which
simply tracked the language of the alleged rule
violation. The Court noted that tile law Ia this area
has Ileell settled for over two deeMes. "No
resoouble oflieer could have thollght tbat such II
misllebavior report, devoid of allY mctWll detail
and oolltaming all inseclIrate incident date, was
adequte to permit Sira to identify and marshal
tile mets pectineat to a defelllSe." The Court went on
to hold that "[i]ndeed, such a conclusion is
particularly warranted in this case because Sira
peJ'sistently challenged the adequacy ofthe notice he
received with respect to place, date, and victims."
Sira Adequately Stated a Claimfor Failing to
Disclose Evidence
Relying once again on Wolffv. McDonnell, the
Court noted that an inmate's right to know the
evidence relied upon is well established. Although
this right is not absolute, "the discretion to withhold
evidence is not unreviewable." In reviewing the
rationale set forth by defendants in refusing to
disclose the confidential information, the Court
foulld tllat although tliere may have Ileell SOllle
security mil. if tlie confidential informants
themselves Iiad Ileen identified, there was nathiilg
in the record to silggCSt tbat di'lclostll"e of the
"substallCe" oftlie collfidel!tiaI lnformaool! wOllid
have presented seclirity risks. Thus, the Court
denied the defendants qualified immunity on this
issue, holding that: "[ilt is possible that on further
development ofthe record defendants will be able to

Pro S. Vol. 14 No.3

justifY withholding the substance of the informants'
disclosures from Sira. (citations omitted) But
because no reasons are now hefore the court and
because we review the record in the light most
favorable to Sira, we must conclude that he presents
a viable due process claim based on non-disclosure of
evidence and that there is no basis to hold that any
reasonable officer could have thought otherwise."
Defendants Are Entitled to Qualified Immunity
Regarding Sua's Suffu:ielrcy ofthe Evidence
Claim
Sira's fmal claim was that he was denied due
process because the decision finding him guilty was
not supported by sufficient evidence. In analyzing
this clailn, the Court addressed three questions:
I) what evidence is required to support a prison
disciplinary disposition;
2) what is the obligation ofthe hearing officer with
respect to assessing collfidential information; and
3) how is reliability of confidential information
established.
With respect to the third question, the Court
explained how hearing officers should assess bolh
c.onfidential information, which is hearsay, and
conclusory assertions by informants.
In answering the first question, the Court relied
on the Supreme Court's decision in Suoerintendentv.
Hill, which held that a disciplinary decision must be
"supported by some evidence in the record." 472
U.S. 445,455. (In New York State Courts, the
standard for review ofthe sufficiency of evidence of
a Tier l!I disposition is whether the record contains
"substantial evidence." When you are suing in
Federal Court, however, the standard regarding the
sufficiency of the evidence is lower.) However, tile
Court nated that "oilly 'relinhle' evidence can
coustitute 'some evidence.' Tile principle is oot
new. A reliability lnqwry has long Ileen required

1'.... Se Vol 14 No. 3

wllell oonfidentia!1lO1Irce Infol'llllloon is relied Oil
to satisfy tile 'some evidence' stalldard."
In addressing the obligation ofthe hearing officer
with respect to assessing confidential information, the
Court explored the history ofsome ofits decisions on
this issue, admitting that there had been some
ambiguity in the case law as to whether a hearing
officer had to make an indcpendent assessment of an
informant's credibility, or whether he could rely on
the opinions of others who had dealt with the
informants. However, tile Conrt noted that its
recent decision of Taylor v. Rodrig!!~ 238 F.3d
at 194, made it clear that heariJ!lg oflkel1l WlISt
mIIlre an indepaident _ment oflin infol'llllllit's
credibility.
The Court then focused on how a credibility
assessment should be made when dealing with
hearsay information. The Conrt noted tilat, whell
de.aliug with mllltiple levels ofheanay, "a heariug
officer ClIIIIIOt determill.e the reliability of that
infol'lllllooll s.imply by nfcJrellce to the iilfol'lllllnt's
past roeard for credibility." Rather, the heariug
oflicer mIISt "ooWllder the totality of the
dreu_tances to determille if the heamllY
InfOl'llllltiOD is, in fact, niiable." The CoW'!
provided n 1m of lilctors thai a hearillg oflker
might rely Ol! In considerillg the "totality of the
dreWllStanees," which IllCluded: tile identity and
replltatioll oftile original illforsnant; his motive for
milking the statement; his willingness to testify or
his reasoWl WI' not doiilg so; and the consequences
hewolllid face ifhis illwl'IIIlltlon proved to he filise.
The Court also noted that if the confidential
informant's identity were unknown to the hearing
otlicer, he could still make a totality assessment by
considering factors such as the "specificity of the
information, the circumstances under which it was
disclosed, and the degree to which it is corroborated
by other evidence." In addition, the Court held, the

l'.g.13

hearing officer should consider challenges to the
informants reliability raised by the accused.
In Sira's case, the defendants argued that the
internal consistency of the confidential information
should have been sufficient to establish its reliability,
but the Court disal,'feed. The defendant, cited to the
fact that several of the informants plaeed Sira in the
same locations at specific times. However, Sira was
assigned to be in these locations. "Corroboration of
facts generally known or easily obtained do not
necessarily establish a source's reliability with
respect to other incrinlinating matters," held the
Court.
Finally, the Court held, In _iIlg the
relialJllity of oollClusory ussertiollS made by
credilJle iufol'lllllnts, that the hearillg oflker
shollld determillC whether there is a lilctaaI basis
fur the witness's oollcllISloilS by inquirillg us to
what the inrol'lllllilt heard amlInr saw, wheoand
where he made his observations, and whether
then were any otller witaesses to the alleged
COndllct. The Court stated, "although 'a thorough
articulatiou of the actual hasis for particular
information may not be necessary in every case,
especia.lly where other circumstances weigh heavily
in favor of reliability,''' in this case, the hearing
officer tailed to make any inquiry whatsoever into the
infonnant's conc1usory allegations.
However, with respect to the defendants'
qualified immunity defense on this issue, the Court
found that the defendants were entitled to qualitled
immunity because, prior to this decision, "the law
had not clearly established the need to look beyond
the credibility records of confidential informants
when evaluating the reliability of conclusions or
third-party hearsay evidence supplied by them."
Joel Landau, of Prisoners' Legal Services,
represented plaintiff Sira on appeal.

Page 14

Pro Se Vol. 14 No. 3

A Message From Tom Teh'izzi,
Executive Director (if PLS
This is an unusual edilion of Pro Se. I can't
remember an issue that we have published whieh
eontains so many decisions in whieh prisoners have
prevailed. The recent Second Circuit Court of
Appeals eases regarding "exhaustion of
administrative remedies" under the PLRA were a
breath of fresh air for inmates struggling just to get
their claims filed. The struggle to keep the eourt
house door open was as a result of a combined effort
among Prisoners' Legal Services of New York, the
Prisoners' Rights Project at the Legal Aid Society,
private pro bono counsel, and some pt'fsistent pro se
plaintiffs. Congratulations to aiL
We have to keep in mind, however, that getting in
the eourt house door will eontinue to be a ehallenge.
It is extremely important that prisoners edueate
themselves on the hasies of raising a eomplaint.
Everyone, whenever possible, must promptly file a
grievanee regarding a decision or incident they object
to, and appeal that decision through all stagt,'S of the
grievance process, in order to preserve the right to go
to court later. If there is a grievanee process other
than the IGRC process, for example, for Tier III
appeals or property claims, those processes must be
followed all the way through the final appeal stage.
The courts will eventually establish a clearer
direction regarding what constitutes exhaustion of
administrative remedies. But who wants to spend
years fighting over these issues when it is the
underlying claim which is important? Edueating
yourselves and others regarding exllaustion is the best
way to avoid future problems. Then, perhaps, we at
Pro Se can spend more time reporting on positive
decisions on the merits of claims.

Voting Rights: Second Circuit Upholds New York
State Statute Prohibiting Voting by Incarcerated
Felons and Parolees
Muntagim v. Coombe. 366 F.3d 102 (2d Cir. 2004)
On April 30, 2004, the Seeond Circuit decided
tbe issue of whether the Voting Rights Act (VRA),
which prohibits voting qualifications that result in the
abridgment of the right to vote on account of race
could be applied to a New York State statute tha~
disenfranehises eurrently ineareerated telons and
parolees. Initially, the Court noted that this L%Ue is a
diffieult one whieh "ean ultimately be resolved only
by a determination of the United States Supreme
Court." Nonetheless, the Court concluded that the
VRA, which is silent on the topic of state felon
disenfranchisement statutes, cannot be applied to
draw into qut,'Stion the validity of New York's
disenfranehisement statute. The Court held: "[1]n
light of recent Supreme Court decisions that have
clarified the scope ofCongress's enforeement power
under the Reconstruction Amendments, the
applieation of the Voting Rights Aet to felon
disenfranchisement statutcs such as that ofNew York
would irdringe upon the states' well-established
discretion to deprive felons of the right to vote.
Because the Supreme Court has instructed us that
statutes should not be construed to alter the
eonstitutional balanee between the states and the
federal government unless Congress makes its intent
to do so unmistakably clear, we will not construe the
Voting Rights Aet to extend to New York's telon
disenfranchisement statute."

Pro Se Vol 14 No.3

New York City Pla¥lS To Place Hou~ing
Restrictions on ConvictedSex andDrug Offenders
This past June, the Bloomberg administration in
New York City reported on its plan to crack down on
drug and sex offcndcrs, banning all those who are
arrested for such offunses on pnblic grounds from all
pUblic housing except their own home and its
common areas. Thc new policy requires that people
arrested for the felony sale of drugs on public
grounds be notified that they are banned from all
public housing outside of their own home and its
common areas. If the person who coll1JJ1its the crime
does not live in the development where the crime is
eommittcd, shelhe will be banned from the prcmises
entirely. Violators will be arrested for trespassing,
being identified by a database which will be
maintained by the police. The city was unable to
answcr any questions concerning how long a drug
offender might be banned from moving into public
housing.
In addition, the city plans to use the New York
State Sex Offender Registry Act to monitor convicted
sex offenders living in public housing within the city.
Police are planning to visit the homes of convicted
sex offenders who claim to bc living in public
housing, in order to verifY their address. Ifthe person
is not living at the address provided to the registry,
they will be arrested.

DNA: Di~trict Court Upholds Constitutioflality of
DNA ~1atute
Nicholas v. Goor!!, 2004 WL 1432533 (S.D.N.Y.)
(June 24, 20(4)
The plaintiffs in this ease were either current or

Page 15

former incarcerated felons who refused to submit
their DNA, or individuals who had allowed their
blood to be taken but were seeking to have the results
expunged. The plaintiffs' claim was that New York
State's DNA statute violated their Fonrth
Amendment right to be free from unreasonable
searches and seizures.
The court applied a simple balancing test to
determine the constitutionality of the statute,
weighing an "individual's Fourth Amendment interest
against the government's interest in conducting the
search." Admitting that there is no precise formula
for the application of the balancing test, the court
focused on three factors: "the strength of plaintiff's
privacy interest; the nature and scope of the
intrusion; and the government interest at stake."
The court first found that "plaintiff's interest in
thcir DNA is mininlal," noting that the information
obtained from DNA is similar to fingerprinting, in
that it simply provides a unique identifYing marker,
and the use of such information has become
universally ac,cepted. As to the scope ofthe intrusion,
the conrt found that also was minimal, in that the use
of DNA provides "no information of any apparent
utility to law enforcement other than identification;
nor is any additional usage permitted by the statute."
The fact that DNA requires the gathcring of blood
was also dismissed by the court, as it found that
inmates "are required to undergo physical
cxaminations, including blood tests," and noting tbat
Supreme Court cases have found that the drawing of
blood is "minimally intrusive." The court explained
that the reason behind the warrant requirement for
certain "searcbes" is to protect against "random or
arbitrary acts," and since thc DNA statute is
"univcrsally applied," it ensurcs that DNA samples
will not be ordered "randomly or for illegitimate
purposes," thus fulfilling a "principle purpose ofthe
warrant requirement."
Finally, the court addressed the government's
interest and found that, "compared to the namrc and

Paget6
the invasion of privacy, there is a significant
government interest" in "having information readily
available to aid criminal investigations." The court
granted the defendants' motion to dismiss, concluding
that "taking blood and analyzing it for DNA
constitutes a reasonable search" within tbe meaning
of the Fourth Amendment.

"Restricted Diet" Cfl.fe: Pri.wller Substantially
Prevails on Opposition to Sananary Judgment
Motion
Rodriguez v. McGinnis, Alves & Morse, 2004 WL
1145911 (W.D.N.Y.) (May IS, 2004)
In yet another victory for prisoners' rights,
District Court Judge Siragusa recently denied, in
part, the defendants' motion for summary judgment
in the "restricted diet" case of Rodriguez v.
McGinnis, ct. al. Defendants McGinnis, Alves and
Morse made their motions claiming that Rodriguez
could not prove facts sufficient to prove deliberate
indifference on the part of the named defendants and
that even if he could, they should be shielded from
liability as a result of qualified immunity. The
defendants also requested permissiou to amend their
answers to raise the defense of exhaustion.
In 1998, Rodriguez sued the Superintendent, the
retired Deputy Superintendent of Security, and the
Director of Medical Services of the Southport
Correctional Facility, alleging that he was subjected
to cruel and unusual punishment while incarcerated
at Southport hetween June 1995 and June 1998.
During this time period, Rodriguez accumulated over
a year's worth of days on a restricted diet, a
"nutritional loaf, food he could not stomach, which
caused him to lose an average of ten pounds a week.
His weight dropped from his regular 140 pounds until
at one point, he weighed only 114 pounds. In
addition, during this time, he suffered from several
medical conditions, including epilepsy, gastritis, and

Pro S. Vol. t4 No.3
negligently undiaguosed Hepatitis C, all of which
were affected by the weight loss."
Rodriguez alleged in his complaint that
defendants Morse and McGinnis lmew that
Rodriguez either could not or would not eat the diet,
and if they placed him on the diet, he would starve.
Rodriguez also claimed that defendant Alves
removed him from the "special diet" only until his
weight increased; at which point, Alves ordered that
the diet be resumed. It is alleged that defendant Alves
engaged in this conduct 24 times over a three-year
period. Rodriguez asserted in his papers that the
American Correctional Association (ACA) standards
prohibit using food as punishment, and yet this is a
practice which DOCS not only permits, but has
increased the usc of, over the years. Further,
although DOCS claims the diet to be nutritious,
Rodriguez asserted that current knowledge about
nutrition indicates that variety is critical in a diet.
Finally, Rodriguez claimed that, in order to obtain
the full nutritional value of the diet, a person would
have to ingest thrce IS-ounce loaves per day, which
would result in an excess caloric intake.
In his complaint, Rodriguez also asserted that
while at Southport, he suffered from a rotator cuff
injury. Despite this injury, he was frequently placed
on a back cuff aud waist chain order. At Southport,
back cuffs are applied with the backs of the hands
together and thumbs up; a chain is then attached to
the cuffand placed around the waist. Inmates remain
in cuff~ throughout recreation, and whenever escorted
from their cell, during disciplinary hearings, medical
visits to the infirmary, etc. Rodriguez alleged that,
although DOCS regulations and ACA guidelines
prohibit the use of mechanical restrail1t~ as
punishment, back cuff orders were triggered by
nearly any mishehavior, and were constantly renewed
for four to six weeks at a time, regardless of present
behavior or any apparent sccurity threat.
Initially, the district court denied the defendants'
motion to amend their anSwers to raise the

Pro Se VoIt4 No.3

"

r
,\
(

affIrmative defense of exhaustion, finding that
granting such a motion would unduly prejudice the
plaintiff. The court noted, however, that if it were to
address the issue of exhaustion, it would dctermine
that Rodriguez did, indeed exhaust his administrative
remedies. The court then held that, with respect to
defendant Alves, there weretriable issues ofmaterial
facts as to whether he was deliberately indifferent to
the health and safety of Rodriguez.
With respect to defendants Morse and McGinnis,
the court found that there was a question of fact as to
whether the use of the restricted diet and behind-theback cuffing was used to restore prison disciplincand
security because, although defendants argued that
this was the case, the plaintiff submitted expert
testimony indicating otherwise.
The court then addressed the issue of personal
liability on behalfo[Morse and McGinnis. The court
found that the evidencc presented failed to
demonstrate a triable issue of fact as to whether
Morse was deliberately indifferent to the plaintiff's
shoulder condition or his medical condition while on
the diet. The court also found that it was not
unreasonable tor Morse to rely on defendant Alves to
provide adequate medical care, and thus, Morse
would be protected by qualified immunity.
The court had the same opinion with respect to
defendant McGillllis, but only on the issue onhe usc
ofthe restraints. With respect to the imposition ofthe
diet, the court found that defendant MeG innis had
received letters from Rodriguez setting forth his
complaints regarding his medical condition while on
the diet, had affinned the dismissal of grievances
concerning the diet, and suspcnded the diet on 31
occasions, checking with defendant Alves as to when
Rodriguez had gained enough weight so that the diet
could be reimposed. On the qualified immunity issue,
the court found that there was a triable issue offact
as to wbether it was reasonable for defendant
McGillllis to helieve he was not violating plaintiff's
constitutional rights by imposing the restricted diet.

Pagot7
Rodriguez is presently being represented by
Prisoners' Legal Services.

Sex Offender Treatmetlt Programs and the Fifth
Amendment
Aguilera v. Conway, 2004 WI, 1773394 (W.D.N.Y.)
(August 5, 20(4)
Donhauser v. Gourd, 314 F. Supp.2d 139 (N.D.N. Y.
2004) see also amended decision at 371 F. Supp. 2d
160 (N.D.N.Y. 2(04)
In decisions dealing with the rc<luirement that
prisoners enrolled in the Sex Offunder Counseling
Program (SOCP) discuss not only the conduct that
resulted in their current convictions, but also conduct
which could lead to criminal charl,'CS, the United
States District Courts for the Northern and Western
Districts ofNew York give a very instructive lesson
on how to craft a successful Fifth Amendrncnt
challenge.
The Fifth Amendment states that "no person
shall be compelled in any criminal case to be a
witness against himself" This rule prevents the
government from requiring a person to answer
questions put to him/her in any civil or criminal
proceeding, whether formal or infonnal, where the
answers might incrinlinate him/her in future criminal
proceedings. The SOCP rules not only required that
a prisoner discuss prior conduct that could be the
hasis of criminal proceedings, hut also required that
the counselors fIllllling the program report any
infoflllation they learned about an individual's
possibly criminal, but as yet uncharged, conduct to
law enforcement agencies. Adding to the pressure on
prisoners to cnroll in SOCP and discuss their prior
sexual misconduct is a DOCS' policy that prisoners
who refuse to enroll in the program, or who enroll
but refuse to discuss potentially criminal conduct,
will be deprived ofall oftheir good time credits. Yet
another consequencc of either a prisoner's refusal to

Pag.18

enroU in SOCP, or of enrolling but refusing to
discuss his past conduct, is the denial of certain
privileges, such as participation in thc family reunion
program.
In Aguilera v. Conway, the plaintiff alleged that
prison officials had violated his Fifth Amendment
rights when they denied his application for a family
reunion visit because of his refusal to discuss his
crime of conviction in SOCP. Aquilera's appeal of
the conviction was still pending, and he was
concerned that statements he made in the program
mightjcopardizethe appeal. The Court dismissed this
action, ruling that plaintiff Aquilera was not
compelled to incriminate himself Rather, the Court
stated, the plaintiff could voluntarily c.hoose to
participate and abide by the requirements or he could
avoid the requirement simply by not enrolling. The
fact that participation in the SCOP program might be
a condition for other prison privileges, such as family
reunion visil~, did not bolster the plaintiff's claim that
the requirement violated his Fifth Amendment rights
because the plaintiff has no constitutional right to
have a trailer visit, and DOCS therefore could
exercise discretion in deciding who is eligible for a
trailer visit.
The court also concluded that DOCS' decision
that plaintiffAquilera be denied a family reunion visit
did not violate either Aquilera's fundament right to
marry or his Eighth Amendment right to be free from
cruel and unusual punishment. Unlike the plaintiffin
the Donhauser case below, plaintiff Aquilera did not
claim that the program's requirement.~ violated his
Fifth Amendment right not to ineriminate himself
because the refusal to abide by SOCP's rules or to
enroll in the program would result in a loss of good
time credits.
The Court in Donhauser v. Goord fuced a similar
set of facts to those considered by the Court in
Aguilera, with one very important exception. In
Donllauser, the plaintiffalleged that, because DOCS
would deprive an inmate who refused to abide by the

1'..,. So Vol. t4 No. 3

SCOP's full disclosure requirement of all his good
tinle credit, the requirement violated his Fifth
Amcndment right not to incriminate himself.
Oonhauser's focus on the consequence ofrefusing to
disclose all prior sexual misconduct, that is, the loss
of good time, led the Court to a different result.
The Donhauser Court ruled that, because the
price ofexercising his right not to incriminate himself
was an extension of his term of incarceration, the
plaintiff had stated a cause of action for a Fifth
Amendment violation. In reaching this result, the
Court distinguished the facts before it from those of
McCunev. Lile, 536 U.S. 70(1973). In MeCune, the
United States Supreme Court ruled that where a
prisoner's refusal to participate in a sex otlender
treatment program resulted only in a transfer to a
higher security prison and a loss of privileges, the
Fifth Amendment was not violated. (This is the same
rC<lsoning used by the Court in Aguilera). Here, the
Donhauser Conrt reasoned, the fact that the
plaintiff's refusal to incriminate himself affected the
tenn of his imprisonment distinguished it from
McCune and an earlier decisioo, Johnson v. Baker,
108 F.3d 10 (2d Cir. 1997).
The Court commented that DOCS could remedy
the Fifth Amendment problenl by offering program
participants "use immunity." That means that any
statements made by prisoners participating in SOCP
could not be used a.gainst them in criminal
prosecutions.
The Oonhauser Court allowed the plaintiff to
proceed with his Fifth Amendment claim for
declaratory and injunctive relief. It ruled, however,
that Donhauser's claim for moncy damages could not
proceed because the defendants were entitled to
qualified immunity. With respect to qualified
immunity, the Court ruled that even though a
prisoner's right to be free from compelled selfincrimination has been long established, courts had
not reached a consensus on the proper lelSdl
parameters of such a right; the individual defendants

Pro Se V.114 No. 3

therefore should not have been expected to solve the
riddle either. Like the Aguilera eourt, the Donhauser
eourt ruled that neither the plaintiff's rightto privacy,
due process, nor equal protection were violateAl by
DOCS' full disclosure of all prior acts of sexual
misconduct.
In the wake of the Donhauser decision,
Conunissioner Goord announced that he was
suspending the SOCP, saying that the order
"effectively guts the program" and essentially gives
sex offenders inappropriate veto power over their
rehabilitative treatment. He rejected the Court's
suggestion that partieipant~ in SOCP be given use
immunity, claiming that "immunity places an
intolerable burden" on prosecutors. "I will not grant
inmates 'use inununity' that is tantamount to a 'stay
out of jail card,' complicating attempts to convict
them of other crimes," Mr. Goord said. An
alternative program will be offered in place ofSCOP.
Subsequently, DOCS filed a notice ofappeal and
moved for a stay of the court order. The stay was
granted, which me,ans that the lower court's decision
is held in abeyance until the Second Circuit reviews
the case. Because of this, the SOCP program is
continuing unchanged.

Hepatitis C: District Court Grallts DOCS
Summary Judgment
Johnson v. Wright, 2004 WL 938299 (S.D.N.Y.)
(May 3, 2004)
PlaintiffJohnson, who suffers from Hepatitis C,
sued employees of DOCS, including Dr. Lester
Wright, DOCS' Medical Director, claiming
deliberate indifference to his medical needs, based on
their refusal to provide him with eomhination therapy
ofRihavirin and Interferon, commonly referred to as
"Rehetron therapy." Plaintiff Johnson had heen
treated with Interferon, but in June 1999, when his
liver enzyme eounts increased, his treating physician

"og.19

recommended thai he he placed on Rehetron therapy.
His request was sent through the DOCS' chain of
conunand to defendant Wright, who denied the
request to add Ribavirin to the treatment "due to drug
use within the past year."
A year later, in June 2000, Johnson filed a
grievance and sent a letter to Dr. Wright requesting
that he he placed on Rebetron therapy. Dr. Wright
granted his request and hy August, Johnson was
receiving Rehetron therapy.
Plaintiff Johnson sued in Mareh 200 I, claiming
deliberate indifference to his medical needs. After
various motions and some discovery, the defendant.~
moved for summary judgment claiming, among other
things, that:
1) Johnson had failed to assert that the alleged delay
in treatment with Rebetron had caused him any
injury;
2) their initial refusal to treat Johnson with
Rehetron therapy was justified hy medical
reasons; and
3) they were entitled to qualified immunity.
Initially, both sides agreed that, even t1lOugh all
ofJohnson's doetors reconunended Rebetron therapy,
that "does not mean that the Constitution required
that he receive it." The court held that Johnson's
positive drug test result, which occurred in May
1998, was '''evidence of active substance abuse'
within the meaning of the DOCS' practice," but that
alone did not end the court's inquiry. The court held
that "if Johnson had evidence from which a
reasonable jury could conclude that the defendants
subjectively knew ofan excessive risk to his health or
safety in their following the Guideline, such evidence
would presumably constitute proofofthe 'subjective'
prong ofthe deliberative indifference standard."
The courl examined the medical evidence
submitted by both sides, not to determine which
medical view was correct but to determine "whether
there [was] any disputed issue offact as to whether
the defendants reasonably could have harbored the

Page 20

belief that the view embodied in the Guideline was
correct. This is because if they held such a belief, it
would be impossible for a jury to conclude that they
had the subjective intent necessary to show deliberate
indifference to Johnson's medical needs." The court
explained that the issue was not "the arguments that
may now he made regarding the wisdom of the
Guideline but rather what apparent basis it had at the
time." Tbe court then concluded that the defendants
submitted sufficient evidence that they had valid
medical reasons justiJying the denial ofthe therapy to
Johnson, and that Johnson had fuiled to rebut the
defendants' evidence that their "treatment ofJohnson
was consistent with the DOCS' Practice Guideline
and that tbe Guideline was based On medical evidence
that was apparently reliable at tbe time."
Finally, Johnson ar{,'1led that the defendants were
deliberately indifferent to his medical needs by not
providing him with the recommended treatment
because drug lISe under the DOCS' Practice
Guideline was not a per se bar to treatment, but
ratber was merely a faetor to be considered. The
court found that the issue was "whetber the defendant
prison officials knew that tbeir lISe of the factor as a
complete bar to Rebetron therapy presented an
excessive risk to Johnson's health or safety," and held
that tbere was no evidence to support such a finding.

First Amendmem - Freedom ofReligion - Update
Court Accepts DOCS' New Guidelines 011 "Five
Percellter" Literature alld Practices
Marria v. Broaddus, 2004 WL 1724984 (S.D.N.Y.)
(July 30, 2004)
In an article that was published in 2003 • Volume
13 • Fall Issue of Pro Se, we reported on the case of

Pro Se VoL 14 No.3

Marria v. Broaddus, 2003 WL 21782633 (S.D.N.Y.
July 31, 2003), a Section 1983 action, in which the
district court reversed DOCS' long-stauding ban on
Five Percenter literature and practices, finding that
the ban violated the inmates right to freedom of
religion. In his original case, plaintiff Marria bad
alleged that the defendants violated tbe Religious
Land Use and Institutionalized Persons Act of 2000
(RLUIPA) by refusing to accommodate his religious
beliefs as a member ofthe Nation ofGods and Earths
(Nation). The court issued an opinion holding thatthe
Nation was a religion whose sincere adherents were
entitled to accommodations under RLUIPA, granting
the plaintiffsome ofthe accommodations he sought,
and remallding the rest of his claims to DOCS to
reevaluate their policies in light of the court's
bolding.
DOCS then crafted new policies to aecommodate
Five Percenters and returned to eourt to request that
the court allow DOCS to adopt these new policies as
protocol for accommodating members ofthe Nation.
After reviewing the proposed protocols, the court
granted DOCS' application for an order adopting a
set of proposed protocols. The court found that
evidence submitted by DOCS supported its position
that the law docs not require it to allow members of
the Nation to congregate. Therefore, altbough the
protocols do provide for one-on-one meetings with
ouL,ide volunteers, they do not allow members to
congregate.
A, part of the resolution of the case, DOCS
agreed that each facility will post and maintain a
copy of the protocols in tbe law library and general
library.
For a copy of the approved protocols, please write to
Central Intake, Prisoners' Legal Services, 114 Prospect
Street, Ithaca, New York 14850

".g.2\

Pro Se Vol \4 No.3

which "can only be eured by a new deadlock
instruetion from the Legislature."
The Case
Court ofAppeals
New York's Death Penalty "Deadlock Provision"
Found Unconstitutional

People v. Lavalle, 2004 WL 1402516, (Ct. of API'.
June 24,2004)
In a hotly contested 4-3 decision, tile Court of
Appeals effectively ruled that New York's death
penalty statute is unconstitutional. The statute
eontains what is referred to as a "deadlock
provision," whieh requires that jurors responsihle for
sentencing at the penalty phase must he told that, if
they cannot make a decision hetwC<c'll punishing with
death or life-without-parole, the defendant will some
day he eligihle tbr parole. The Court held that such a
deadlock provision violates the New York State
constitution, stating that "a vote for life imprisonment
or dt'ath, driven hy the fear that a defendant might be
parole-eligible ifjurors fail to re.,ch unanimity, does
not satisfY the heightened standard of reliability
required by our Stale Constitution."
When the statute was originally drafted, there
was a great deal of debate concerning the deadloek
provision. Proponents argued that it was necessary
for a hung jury to know what would happen if they
could not reach a verdict. Critics expressed concern
that the deadlock provision could have a coercive
effect on a juror, in that a juror leaning toward voting
for life-without-parole might be inclined to vote for
thc the death penalty simply out offear that any other
vote would result in the aceused being released out
onto the street someday. Regardless ofthe merits of
both arguments, the Court held that the provision, as
it is written, creates a defect in the existing statute

In the early morning of May 1997, Cynthia
Quinn, a Long Island teacher and track coach, was
raped and murdered while out for her daily 6:00 a.m.
run. A subsequent investigation resulted in the arrest
of Lavalle, who ultimately confessed to the murder.
The trial began in June 1999 and lasted 17 days. The
prosecution presented 41 witnesses and 180 exhibits.
The defense did not present any witnesses. Lavalle
was found guilty and on August 6, 1999, after the
penalty phase of the trial was completed, he was
sentenced to death.
The Appeal

On appeal, Lavalle's defense counsel raised a
number of issues. By the time the case reached the
Court of Appe.~ls, the deadlock provision issue was
before the eourt, together with issues coneerning:
jury selection; self-representation; the existence of
Brady material; inflammatory testimony; and an
improper smnmation by the prosecutor. The Court of
Appeals found for the prosecution on all ofthe issues
exeept for the deadlock provision.
The Decision

In comparing New York's deadlock provision to
those in other states, the Court found that New
York's CPL §400.27(J0) "is unique in that the
sentence required after a deadlock is less severe than
the sentences the jury is allowed to consider. No
other death penalty scheme in the country requires
judges to instruct jurors that, if they cannot
unanimously agree between two choices, the judge
will sentence [the1defendant to a third, more lenient,

Pro S. Vol. 14 No.3

Page 22

choice." The Court then noted that "[s)tudies have
found that jurors tend to 'grossly underestimate how
long capital murderers not sentenced to death usually
stay in prison. ,,, Because ofthis, when faced with the
choice provided for in the deadlock provision, "jurors
might impose the death penalty on a defendant whom
they helieved did not deserve it simply because they
fear that the defendant would not serve a life
sentence."
The Court commented that the New York State
Legislature had made it clear that it helieves that a
person convicted of a capital murdcr should have
only two options, death or life-without-parole. And
yet, the Legislature passed a statutc that tells a jury
that although it may not impose a sentencc of life
with parole, if it cannot agree on death or lift}without-parole, then the sentencing court will impose
a sentence of lite with parole. Such a "deadlock
instruction interjects the fear that, if jurors do not
reach unanimity, the defendant may be paroled in 20
years and pose a threat to society ill the fhture. Yet,
in New York, a defendant's future dangerousness is
not a statutory aggravator the jury may consider."
Thus, held the court, "[b)y interjecting future
dangerousness, the deadlock instruction gives rise to
an unconstitutionally palpable risk that one or more
jurors who cannot bear the thought that a defendant
may walk the street again after serving 20 to 25 years
will join jurors favoring death in order to avoid the
deadlock sentence."
Thc Court noted that "[f]or jurors who are
inclined toward life without parole, the choice is
between death and lite with parole, a Hobson's
choice in light of the jurors' likely concerns over
defendant's future dangerousness. The cboice of
death results not through 'a comparison ofviews, and
arguments among thejurors themselves,' but through
fear and cocrcion." The Court admitted that there
may be instances where a juror who favored deatb
over life without parole would vote for life without
parole, rather than allow the defendant to be

sentenced to life with parole. "That, however, does
not cure the coercive effect of thc deadlOt'k
instruction before us," said the Court. "The coercive
effect is not relieved by recognizing that some jurors
may be coerced in the opposite direction."
The Court made reference to various
commentators who have heen critic,al ofNew York's
death penalty statute, quoting one commentator as
saying: "The only possible reason for having this
cockeyed sentencing scheme - and for insisting that
capital jurors be informed ofit - is to put pressure on
jurors in the minority holding out for life to switch to
death so that the defendant is not made eligible for
parole as a result of a non-unanimous verdict."
The importance of this decision cannot be
overstated. The existence ofthe death penalty in New
York has been and will continue to be a hotly
contested issue. The New York Court ofAppeals has
consistently approached this issue with great caution,
realizing the vast implications of upholding a death
sentence. "Because death is qualitatively different,
there is a 'corresponding differencc in the need for
reliability in the determination that death is the
appropriate punishment in a specific case. Whether
a juror chooses death or life without the possibility of
parole, the choice is driven by the fear that a
deadlock may result in the eventual release of the
dcfendant. Under New York's deadlock instruction
the ehoicc is not, as it should be, the result of a
reasoned understanding that it was tbe appropriate
One. '"

FOIL Decisioll
New York Civil Liberties Union v. City of
Schenectady, 2 N.Y.3d 657 (2004)
At first, the question before the Court ofAppeals
was whether police officer reports relating to use of
lurce were subject to tile Freedom of Information

Pro Se VoIl4 No.3

Law (FOIL), but a ralher bizarre turn of procedural
events left the Court with little to decide.
In April 2000, the NYCLU made a FOIL request
to the City of Schenectady for "[aJII
documents...referencing... [u]se of force by police
ofIicers against civilians." When the city o~jected to
the request as being too broad, the NYCLU amended
its request, asking for "[i]ncidents prepared by police
omcers pertaining to use of force." After a year
passed without any response trom thc city, the
NYCLU filed suit. The city responded by claiming
that the records being requested were the same as
those requested in Matter of Gannet, Co.. v. James,
86 A.D.2d 744 (4'" Dep't 1982), Iv denied 56N.Y.2d
502 (1982), where the court held that thc Rochester
Police Department 'use of forcc' form was exempt
from disclosure under FOIL. The lower court agreed.
The NYCLU appealed, arguing, among other things,
that the Court ofAppeals decision in Matter ofGould
v. New York City Police Dep't., 89 N.Y.2d 267
(1996), effectively overruled the Gannet case. (Gould
involved a situation where a FOIL request was made
to a New York City Police Department seeking
c,omplaint follow-up reports. The Court of Appeals
found that such reports were not exempt from
disclosure under FOIL, regardless of the fact that
they might be classitied as intra-agency material,
since such reports included tactual data.) The
Appellatc Division, Third Department, however,
disagreed and afIirmed the finding ofthe lower court,
holding that the Court of Appeals' decision in Gould
did not affect the Fourth Department's holding in
Gannet.
The Court of Appeals granted the NYCLU's
motion for leave to appeal. After the NYCLU filed its
brief, the City advised the Court that there had been
a misunderstanding and that it did not even have use
of force record~, as it has "no routine procedure tor
reporting use of foree ...." The City indicated that
there may be references to use of force in standard

Page 1,1

incident report.~ and that such reports would be
available to the public under FOIL but that, also,
there may be such references in internal affairs
investigations, and those documents would be exempt
fTOm FOIL. The City also indicated that it would be
willing to provide information that could be disclosed
to the NYCLU. However, the Police Chiefsubmitted
an afIidavit stating that it would be too burdensome
to search thousands ofreports looking for references
to use of force.
A very fru.~trated Court of Appeals initially
addressed the fact that, although both parties had
briefed the legal issue ofwhether the Gannet case had
any continuing viability after the Gould decision,
such an issue had become an "academic one." The
Court noted that it does not decide academic issues.
Thus, the Court was left with an admission by the
City that it did have some reports that would
reference use oftorce incidents and that the City was
willing to provide those reports under FOIL, but the
City also took the position that searching the
thousands of documents involved would be too
burdensome. The Court of Appeals determined that,
based on the City's admission that documents that
should be disclosed under FOIL existed, the
Appellate Division's decision finding that the denial
of the petitioner's request was "entirely proper"
could not stand. The Court admitted that there may
now be some lack ofclarity as to what documents are
subject to disclosure under FOIL, but cautioned the
defendants that "[w]hat is clear above all is that the
'runaround' must end." Citing the Gould case, the
Court reminded the City that "government record~
are 'presumptively open,' statutory exemptions are
'narrowly construed,' and the City must articulate a
'particularized and specific' justification for nondisclosure."

Pall" 24

Disciplinary
Civil Procedure/Administrative Regulations:
Appelll Response Period is Directory
Matter of Goberdhan v. Goord, 776 N.Y.S. 2d 648
(3d Dep't 2004)
Petitioner Goberdhan was charged with various
rule violations. After being found guilty, he filed an
administrative appeal with DOCS, which was
received on September 9, 2002 and ultimately
decided on October 29,2002. The petitioner filed an
Article 78 claiming, among other things, that he did
not receive a decision on his administrative appeal
within the 60-day time period, as is required in the
rcgulations. Title 7 N.Y.C.R.R. §254.8 requires that
an administrative appeal be decided within 60 days
from the date it is received. The court found that the
administrative appeal in this case was decided by the
respondent within the 60 days, as required by the
regulation, and that there was nothing in the record to
support the petitioner's c1ainl that he did not receive
the determination within that period. Moreover, the
court noted, "[e]ven ifhe did not, such time period is
directory, rather than mandatory, and does not
warrant disturbing the determination of guilt absent
a showing of substantial prejudice, which had not
been made here."

CivilProcedure/Servic-eRequirements: l/lsufficielu
Funds No Excuse for Failure tf} Serve Order to
Show Cause
Matter of Adams v. Goord, 778 N.Y.S. 2d 554 (3d
Dep't 2004)
Petitioner Adams was found guilty of various
prison disciplinary rules and subsequently brought an
Article 78 to challenge the disposition. The
respondent~ moved to dismiss the petition based upon

Pro Se Vol. 14 No.3

lack of personal jurisdiction, claiming that none of
the respondents had been served in the manner
directed by the Order to Show Cause. Adams
admitted to the court, via a letter, that he did not
furnish the Order to Show Cause to the respondent~,
but stated that his failure to do so was due to his lack
of funds. The lower court then denied the
respondents' motion, ordered the respondents to file
an answer, and transferred the proceeding to the
Appellate Division.
The Third Department held that, even though the
respondents did not appeal the detennination of the
lower court to deny the respondents' motion to
dismiss, it would exercise its power to review the
procedura I error that had prcviolLqly been raised by
the respondents. The court then granted the
respondents' motion to dismiss, holding that "[w]hile
an inmatc's failure to abide by the service
requirements in an order to show cause may be
excused upon a showing that [the] prison presented
an obstacle beyond the inmate's control, petitioner's
assertion of insufficient funds does not con.~titute
such an obstacle."

Contraband: Defense to Drug Charge Results in
Contraband Charge
Matter ofGolIZalez v. Goord, 779 N. Y.S.2d 602 (3d
Dep't. 2(04)
Petitioner Gonzalcz, an inmate, was c,harged with
drug use. During that hearing, and apparently in an
attempt to defend himself again~t the drug charge, he
admitted eating pretzels which contained poppy
seeds; he even gave the heariug officer the empty bag
of pretzels which contained some loose poppy seeds.
As a result, the petitioner was charged with
possession of contraband and found guilty, the
detemJination being upheld on appeal.
In his subsequent court challenge, the petitioner
asserted that, because the pretzels had come through

Pro Se Vol 14 No. 3

the paekage room lawfully, he should not he charged
with possession of contraband. The court disagreed.
The court relied on the language ofthe rule violation
regarding eontraband, which states that "[i]nmates
shall not he in possession of any contraband items"
and that "[c]ontraband is any artiele that is not
authorized by the superintendent or designee." The
court noted that the superintendent had previously
sent out a memo to the inmate population, which
advised that "'poppy seeds' and 'poppy seed
prnducts' are not allowed into this facility as it is
considered contraband." Based upon the petitioner's
admission that he possessed a bag containing poppy
seeds, the court found that the charge was supported
bysubstantialevidenc~

Contralxuul!Dr(lgs: Inference ofPossession
Matter of Torres v. Selskv, 777 N.Y.S.2d 815 (3d
Dep't 2004)
Petitioner Torres was charged with unauthorized
possession of a controlled substance after marijuana
in a toilet paper roll was discovered in his cell. Torres
filed an Article 78 to challenge the finding of guilt at
his disciplinary hearing. He claimed, among other
things, that the misbehavior report was defective
because it failed to specily the role he played in
possessing the contraband which was found in a
common area ofa cell he shared with another inmate.
The court initially rejccted all of his arguments,
since he failed to raise them at his underlying hearing.
However, the court went on to hold that, even if it
were to address his claim of a defective misbehavior
report, it would find it to be without merit. "[T]he
fact that the cigarette was found in an area within the
petitioner's control, notwithstanding that his celbnate
also had access to the area, leads to an inference of
possession by petitioner," the court held.

l'"g.25

InAlJsentia Hearing: Inmate's Conduct Warranted
Exclusion From Hearing
Matter ofAlexander v. Ricks, 779 N.Y.S.2d 606 (3d
Dep't 2004)
It is well-established that prisoners have both a

federal constitutional due process right and a slate
right under DOCS' regulations to attend a prison
disciplinary hearing. Wolffv. McDonnell. 418 U.S.
539 (1974); Title 7 NYCRR §§ 254.4-254.6.
However, it is equally clear that the right to be
present is not an absolute one. Violent, unruly, or
disruptive conduct can justify the exclusion or
removal of an intrulle from a hearing, but there must
be evidence ofsuch conduct on the record to support
such an exclusiou or removal. See Mattcr of Berrian
v. Selskv, 306 A.D.2d 771, 772 (3'" Dep't 2003);
Matter of Johnson v. Goord, 297 A.D.2d 881 (3'"
Dep't 2002); and Matler of Beckles v. Selsky, 273
A.D.2d 584 (3'" Dep't 2000).
In March 2001, Alexander received six different
mishehavior reports, resulting in five different Tier
hearings. All five hearings were condueted by the
same hearing officer. To minimize confusion, the five
hearings are referred to as the Hebert, Cook, Baker,
Herrick, and PremolWinters hearings, named after
the officers who wrote the various misbehavior
reports.
All the hearings commeneed on March 23, 200 I.
On that day, Alexander was removed from the Hebert
hearing, following a warning by the hearing officer
that he would be removed ifbe continued to aet in an
"insolent" and disruptive manner, and after the
hearing officer found that he had continued to hehave
in such a manner despite his warnings. Alexander did
not challenge bis removal from that hearing. After his
removal from the Hebert hearing, the other hearings
were reconvened later that day and again on

Pagel6

March 26. Upon rcconvening those hearings, no
mention or reference to the removal from the Hebert
hearing was made.
On the morning of March 26, during the
reconvened Cook hearing, the hearing officer
removed Alex.ander from the hearing for alleged
disruptive behavior, refusal to obey directions, and
for swearing and threatening conduct. Alexander
maintained that he was simply, but forcefully,
objecting to violations ofhis due process rights. After
his ordered removal from thc hearing, Alexander
became vcry upset and physical force was used to
remove him from the hearing room. Thereafter, the
hearing officer reconvened tbe remaining Herrick,
Baker, and PremolWinters hearings in Alexander's
absence, finding that Alexander had forfeited his right
to attend the remainder of those hearings, both as a
result of his conduct in connection with the Cook
hearing and his behavior that had led to his earlier
removal from the Hebert hearing.
Following unsuccessful administrative appeals,
Alexander filed an Article 78. In March 2003, tbe
Supreme Court, Franklin County, held that
Alexander's removal from the Cook hearing was not
justified, finding insufficient support in the hearing
record that Alexander's removal was necessitated by
reasons ofinstitutional safety and correctional goals.
Namely, there was no evidence that Alexander swore
or was in any way threatening prior to his exclusion
from the Cook hearing. As well, the Supreme Court
held that the hearing officer "failed to articulatc any
clear warning to Alexander that he would be excluded
from the hearing ifbe continued to ignore the hearing
officer's admonishments to be quiet."
However, the Supreme Court did uphold the
hearing officer's decisions to exclude Alexander from
the remaining Baker, Herrick and Premo/Winters
hearings. The Court found support for the exclusion
from those remaining three hearings based upon
Alexander's earlier disruptive conduct at the Hebert
hearing, and his disruptive "physically out-of-control

Pro se Vol. t4 No. 3

conduct" following his ordered exclusion from the
Cook hearing.
The petitioner appealed the decision upholding
his exclusion from the Baker, Herrick and
PremolWinters hearings. The petitioner argued that
the hearing officer's removal ofhim from the earlier
Hebert hearing could not be relied upon to support
his subsequent renlOval from the three remaining
hearings because he had becn allowed to attend those
hearings after his removal trom the Hebert hearing,
with no mention made of his behavior at, and
removal from, the Hebert hearing. The petitioner also
argued that, sinee the Supreme Court found that the
removal from the Cook hearing was improper and
unsupported by the record, it was inappropriate and
unreasonable for the hearing officer to immediately
reconvene the remaining three hearings without
giving the petitioner a chance to attend those
hearings. There was no need, petitioner asserted, for
thc hearing officer to quickly reconvcne those
hearings; rather, he should have provided a coolingoff period and then warned the petitioner that any
further outbursts or unruly behavior would result in
his exclusion from the remaining hearings.
The Third Department rejected the petitioner's
arguments, finding that there was adequate support
and justification for his removal from these hearings.
The court held that it could not say that the hearing
officer abused his discretion in removing the
petitioner from the remaining hearings, "given the
proximity in time between the violent outburst and
the other hearings, the nature of the outburst itself,
and petitioner's prior conduct [at the Hebert
hearing]." While the court did not address the
petitioner's argument that there was no need, and
indeed that it was unreasonable and an abuse of
discretion for the hearing officer to immediately
reconvene those hearings following the petitioner's
removal from the Cook hearing room, the Court
implicitly rejected that argument.

Pro So Vol 14 No.3

The petitioner was represented by Prisoners'
Legal Services.
Practice Tip: When facing a Tier hearing, while you
have the right to, and indeed should, clearly state on the
record any and all objections you may have, there is /U)
need to he impolite. hostile, or angry when doing so.
Further, you should take heed 'if any clear warnings
from the hearing offieer regarding the type ofbehavior
she or he deems disruptive or unrulY and which could
result in your removalfrom the hearing. Ifyou disagree
with the hearing officer's characlcrization of such
behavior as unruly, politely slale this an II"" record, and
then move an. Finally, ifyou believe you are improperlY
treated hy the hearing officer, including being
improperly excluded or removedfrom the hearing, the
appropriate time, place, and manru,r to challenge this is
by a respectfUl verhal objection an Ibe record of the
hearing and a uritten objection in your appeal.

Denial of DigM To Witne.sses: New Evidence
Results in Previously Denied Witne.ss Becoming
Relevant
Matter of Escoto v. Goord. 779 N.Y.S.2d 314 (3d
Dep't 2004)
As a result of a cell search in which a sharpcned
can lid was found, petitioncr Escoto was charged
with violating prison disciplinary rules prohibiting
possession of a weapon and altering an item. At his
hearing, Escoto, a non-English-speaking inmate who
required an interpreter, testified that he had heen
given the can lid by another inmate for the purpose of
cutting vegetables and requested four inmates as
witnesses stating that they would corroborate his
defense. The hearing officer denied his request,
stating that their testimony would be redundant.
However, the hearing officer then heard testimony from a correction officer who stated he had

Page 27

searched the cell of one of the requested witnessed
and had found a note, written in English, which
apparently gave instructions to the witness as to how
to testilY to the incident for which the petitioner was
charged. The petitioner denied he wrote the note
saying, through his interpreter, that he knew nothing
about the note and could not write in English. He
suggested that perhaps the note was written by his
neighbor to inform the inmate as to what he would he
expected to testilY to ifhe were called to the hearing.
At this point, Escoto reiterated his request to call his
witnesses. The hearing officer ignoreJ his request,
while at the same time stating, on the record, that
"the note was relevant since it evinced an attempt by
petitioner to coerce the testimony of others." The
hearing officer proceeded to find Escoto guilty on
both charges.
The court found that, "[u]nder these
circumstances, the hearing officer erred by excluding
the testimony of the witness in whose cell the note
was found." Although an inmate's right to call
witnesses at a disciplinary hearing is somewhat
limited, unless the testimony is irrelevant, redundant,
or would jeopardize institutional safety or
correctional goals, a requested witness should be
allowed to testilY. The court found that, "[w]hile an
initial exclusion of this witness's testimony as
redundant was a proper exercise of discretion, the
situation changed when the hearing officer took the
testimony ofthe correction officer who had found the
note...." This new evidence made the requested
witnesses' testimony relevant, especially in light of
the tact that the hearing officer determined that the
note had been written by the petitioner, and the
hearing officer's "previous determination of
redundancy was no longer supported by a sufficient
basis in the record."

1'.... So Vol. 14 No.3

Denial of Right To Witn~:~es: COllrt Finds
Supervisors' Testimony Regarding Their
Understanding ofFacility Memo, IrMI!l!Ilm.
Matter ofKoehl v. Senkowski, 779 N.Y.S.2d 851 (3d
Dep't 2004)
In an unfortunate decision, the Third Department
recently held that testimony from an inmate's
supervisors, to the effect that they did not understand
a facility-wide memorandum, which apparently
prohibited legal papers in the prison's industry, was
properly precluded from a Tier 111 hearing as
irrelevant. Inmate Koehl was found guilty of, inter
alia, possessing property in an unauthoril.ed area. At
his hearing, although Koehl admitted that he did
possess the legal documents in the unauthorized area,
he requested that two ofhis supervisors he allowed to
testiJY as witnesses, stating that they would declare
that they did not understand the memorandum. The
hearing officer denied the requested witnesses as
irrelevant. Koehl also requested a third witness, a
civilian supervisor, whom the pctitioner claimed
would testilY that she gave Koehl pemlission to bring
his legal documents into the industry area to he
notarized. The hearing officer also denied that
witness.
The court held that the witness deniaIs were
appropriate. As to the first two witnesses, the court
found that the "supervisors' understanding of the
memorandum was irrelevant to the issue of whether
petitioner violated the prohibition on possession of
legal papers." With respect to the civilian supervisor,
the court held that this testimony, too, was irrelevant,
since "any testimony that petitioner sought
permission to violate the dictates ofthe mClllOrandum
from a civilian employee without the authority to
grant such permission would not support a defeuse to

the charges." The court failed to distinguish their
decision in Matter of Bole v. Coughlin. 521
N.Y.S.2d 889 (3d Dep't 1987). In Bole, the court
annulled the disciplinary hearing at issue, holding
that the witness testimony which was requested,
testimony very similar to what was requested by
Koeh~ should have been allowed, as it may have
resulted in mitigation of the penalty imposed.

Substantial Evidence: Lack of IlJVon",mmt of
Other Inmates Does Not Negate Charge of
Organizing a Demonstratioll
Matter ofSchuler v. McCray, 778 N.Y.S.2d 237 (3d
Dep't 2004)
The Superintendent of Gowanda received an
anonymous letter in February 2003, setting forth
various complaints and threatening a revolt. A
subsequent searchofpetitioner Schuler's cell resulted
in the discovery of a typewriter ribbon on which the
first six lines ofthe text ofthe anonymous letter were
imprinted. Schuler was then served with a
misbehavior report charging him with lnaking
threats, organizing a demonstration, and rioting. He
was found guilty ofmaking threats and organizing a
demonstration, but not guilty of rioting.
After an unsuccessful administrative challenge,
Schuler fIled an Article 78 alleging, among other
things, that the lack of involvement of other iumates
rendered the charge of organizing a demonstration
unsupported by substantial evidence. The court
rejected the argument, holding that lack of
involvement of others did not render the charge
unsupported hy substantial evidence, since the letter
clearly indicated "the author's intent to ineite
collective action on the part ofthe prison population
if certain issues" were not addressed.

P.... Se Volt" No. 3

Unauthorized Organizational Muter/al: Doi!s
Have a W"uiget?

Gentle v. State of New York. Claim No. 9692
(Ruderman, J.)

Matter of Lorenzo v. Neuwrith, 778 N.Y.S.2d 236
(3d Dep't 2004)

In this case, the claimant was an inmate at Sing
Sing in 1996, working in the filcility workshop when
he "amputated the left upper joint of his left middle
finger and severely lacerated the fourth finger ofhis
left hand." He sued in 1997, claiming that the injury
was due to an unsafe router that did not have the
proper safety guards in place.
After he filed his claim, the claimant requested
certain documents through discovery, including an
accident investigation report and reports of weekly
maintenance inspections, reports mandated to he kept
by DOCS' own Directives. After the defendant failed
to produce the requested documents, the claimant
made a motion to strike the defendant's answer. In
response, the defendant submitted an affidavit from
the Fire and Safety Officer, who indicated that he did
not make a "formal report" but that he had
investigated the incident, pursuant to DOCS'
Directives. He further stated that he ooly keeps such
records for a period of three years and thus, by the
time claimant requested them in 1999, they would
have been destroyed.
The court held:'''To impose the drastic remedy of
striking a pleading pursuant to CPLR 3126, there
must he a clear showing that a party's failure to
comply with discovery demands was willful,
contumacious, or in had faith. '" Based upon the
evidence presented, the court decided "[w]hether the
destruction of the maintenance records was willful,
and the circumstances surrounding the absence of a
formal report by the Fire and Safety Officer, present
credibility issues and genuine issues of fact which
cannot be determined at this time and must await
resolution at trial." The court then denied the
claimant's motion to strike the defendant's answer,
finding that it would reconsider the claimant's
application to strike the defendant's answer after it
had the opportunity to observe the demeanor of the

A~l'Ie

Petitioner Lorenzo, an inmate, was charged with
destruction of state property and displaying
unauthorized organizational material when a gang
symbol was discovered on the inside door of his
medicine cabinet. At his subsequcnt
hearing,petitioner Lorenzo denied that he had placed
the &)'Illbol on the door, and elicited testimony that
the symbol was "worn" and "appeared to have been
on the medicine cabinet door for some time." Lorenzo
was found guilty of displaying unauthorized
organizational material but not guilty of destruction
of state property. He filed an Article 78 proceeding,
claiming that the finding of guilt on one charge was
inconsistent with the finding of not guilty on the
other.
The court disagreed. The court found that the
determination ofnot guilty on the destmction ofstate
property was consistent with the testimony at the
hearing, which indieated that the symbol was so worn
it may have been On the cabinet befofC Lorenzo
occupied the cell. However, with respect to the
displaying of unauthorized organizational material,
the court held, "petitioner was aware that the display
ofsuch matcrial was prohibited, but took no action to
remove or report it during the seven months that he
occupied the cell."

Court ofCltlims
Failure to Provide Requested Documents Results
ill Negative lFiferellce Being Drawn

1'.... S. VoL 14 No.3

{

witnesses at trial. However, the court did find
"claimant [made] a sufficient showing to warrant an
adverse inference that, had the records sought been
produced, they would have been unfavorable to
defendant."

In/ormation Set Forth In Notice 0/ Intention
Found Adequate to Place State on Notice

WM&

facilities intermittently, upon information and belief
from August 1998 through September, 1998.,n Such
information, the court held, was sufficient to place
the State on notice that the claimant was asserting
that the death was caused by the medicalnegligenec
of the State. The court found that tbe information
provided in the Notice was sufficient for the State to
investigatc the claim and assess its liability.

Rodriguez v. State ofNew York, 779 N.Y.S.2d 552
(2d Dep't 2004)
Claimant, Esther Rodriguez, filed a Claim
against the State, claiming that the State's negligent
medical care had caused the death of an inmate. The
State moved to dismiss, claiming that the Notice of
Intention and the Amended Notice oflntention to File
a Claim were insutTicient, in that they failed to
provide the defendant with sutTicient notice of the
alleged negligcnce that caused the wrongful death.
The Court of Claims granted the defendant's motion
to dismiss and the claimant appealed.
The AppcllateDivisioll, Second Department, held
that the Amended Notice of Intention filed hy the
claimant was sufficient. The whole purpose of a
Notice of Intention is to provide "sufficient
definiteness to enable the State to be able to
investigate the claim promptly and to ascertain its
liahility under the circumstances."
The Notice must set forth the time and place
where the claim arose and the nature of the claim.
The court noted, "[i]n describing the general nature
oftbe claim, the notice ofintentionneed not be exact
but should provide an indication of the manner in
which the claimant was injured and how the State
was negligent." In this case, tbe claimant, in her
Amended Notice oflntention, stated, '''the wrongful
death of Gregory Darby nceurred...as a result ofthe
negligence of the State of New York as
foIlows:...[t]reatment for his condition of congestive
heart and the iJ~uries herein sustained took place ...
at Downstate Correctional Facility and/or its medical

Parole Denial Based on Incorrect In/onnation
Reversed, New Hearing Order
Matter of Lewis v. Travis, 780 N.Y.S.2d 243 (3d
Ocp't 2004)
In 1983, petitioner Lewis was convicted of
murder in the second degree and robbery in tbe first
degree and sentenced to prison. In 2002, he made his
first parole board appearance at which he was denied
parole with the Board, placing particular emphasis
on his instant offense. After the parolc denial was
upbeld on administrative appeal, petitioner Lewis
filed an Article 78 proceeding.
Lcwis challenged the parole board's decision,
contending that it improperly focused all of its
attention on his instant offense and disregarded his
many institutional achievements. The court
disagreed, finding that "[i]t is well settled that the
Board is not rC''1uiJ'ed to enumerate, give equal weight
to, or explicitly discuss every factor considt':fed." In
reviewing the record, thc court found that the Board
was well aware of petitiouer Lewis' achievement
while in prison. The court did, however, find that the
Board erred when it incorrectly referred to petitioner
Lewis' conviction as "murder in the first degree."
Because the Board relied on incorrect infomlation to
deny petitioner Lewis parole, the court ordered the
decision reversed and granted a new hearing.

1'.... s. Volt.. No.3

Are Y011 Entitled to Prior sentence Credit Under
Poople v. R.ichamson?
In October, 2003, the New York State Court of
Appeals was faced with the issue of whether a
sentencing court could change a defendant's
sentences from running concurrently to running
consecutively if, in its original sentencing, it had not
specified as to how the new sentcnce should run.
Peollie v. Richardsop, 100 N.Y.2d 847, 767
N.Y.S.2d 384 (2003) In Richardson, the prisoner was
convicted of a new crime while serving parole on a
prior A-I felony conviction. In rendering a sentence,
the court was silent on the Sentence and Commitment
paper as to whether this new sentence would run
consecutively or concurrently to the prior
undischarged sentence. Penal Law § 70.25(IXa)
provides that, where tlle court does not specifY how
thc sentences shall run, they are deemed to run
concurrently. Therefore, DOCS, in calculating the
sentences, determined that Richardson was entitled to
concurrent credit for the prior sentence.
After learning of this calculation, however, thc
People (i.e. the District Attorney for New York
County) moved to reopen the sentencing to allow the
court to clarifY that it had intended for the sentcnct'S
to run consecutively. Defendant Richardson opposed
the motion. The court granted the People's motion
and specified in a new Sentence and Connoitment
paper that the new sentenc,e was consecutive to the
prior undischar/,'Cd term. The defendant appealed and
the Appellate Division affirmed the lower court.
On appeal, the Court of Appeals reversed. The
Court held that the trial court did not have the
authority to modify a lawful sentenc,e of
imprisonment "where the court did not specifY
whether the s(''IItenee was to run concurrently or
consecutively to an undischarged term of

Pag_ 31

imprisonment on an unrelated conviction." The Court
of Appeals found that the trial court's silence in the
original Commitment paper rendered the sentences
concurrent. Richardson was therefore entitled to have
time he had served on the prior conviction credited
against the newly-imposed sentence.
This case has generated much interest among
prisoners who believe DOCS has incorrectly
calculated their sentence. PLS has reccived many
letters from prisoners seeking to benefit from the
Richardson casco Unfortunately, Richardson has
seemed to create widespread contusion, and in many
instance.s, Richardson is simply not applicable. The
following will help explain whether Richardson and
the Penal Law provisions at issue in that case mayor
may not be applicable to your situation.
Thc Richardson case may at first appear to
support the position that whenever the court is silent
in a commitment about how a ncwly-imposed
sentence is to run in rclatiou to any undischarged
sentence, the newly-imposed senteuce must run
concurrently. However, that interpretation is not
correct. The Court, in deciding Richardson, did not
interpret the Penal Law in any new way.
The ruling turned on several specific exceptions
to the "silence equals concurrent" rule. Specifically,
§70.25(l) states that "Except as provided in
subdivisions two, two-a, and five of this section,"
silence means concurrent. Thus, to determine if you
are entitled to concurrent credit because of the
court's silence in your commitment paper, you must
first (''IIsure that none of these subdivisions apply.
The subdivision provision that most often
prevent.~ concurrent sentences tbrollgb silence is
§70.25(2-a). Tllill scdion provides that, wbere II
persoo is sentenced as a predicate felony olJellder,
meaning a second felony olJender Wilier §70.04, a
second violent felolly ofliender under §70.06, a
persistent felony offender under §71l.tO, or a
persistent violent felony olJooder lInder §71UIIl,
such newly.illlposed sentence IIIllSt rUII
conIlcclmvely to any nndisebarged tenn. That

P&g.32

1'.... Se VoL

_lIS the judge does IIOt Ii.lIve discnltioll to islIne
a COlICmTeot sentenee.
Much of the confusion generated by the
Richardson decision seems to be that the Court did
not make clear that, although Richardson's prior
sentence for murder (an A·I offense) was an
"undischarged term of imprisonment," Richardson
was not a second felony or second violent felony
offender under either §70.04 or §70.06. A-I offenses
are specifically exempted from being considered prior
offenses, which would make a person a second felony
offender or second violent felony offender. Thus,
Richardson did not fall under §70.25(2-a). Because
of this, where his Commitment paper was silent as to
how his sentence should run, a concurrent sentence

t4 No. 3

on his new conviction was a "lawful" sentence under
§70.25(1).
In short, if you were SCEl!en(.'Cd ouder my of
the predicllte felony offender statotes, your
sentences mBSt I'UII consecutively. even where the
sentencing court WIIS silent aooot how they wonld
I'UII in the SentellCe ed Commitment paper. The
Penal Law requires that predicate felony offender
sentences must run consecutively to prior
undischarged terms. Because of this, if your
commitment paper is silent lIS to how your sentences
should run, and you were sentenced lIS a repeat
offender pursuant to one of the sections listed in
Penal Law §70.25(2-a), DOCS must run your new
sentence consecutively to your old sentence, pursuant
to the mandates of the Penal Law.

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EDITOR: KAREN MURTAGH-MONKS, ESQ.
CONTRIBUTORS: TOM TERRIZZI, ESQ., MICHAEL CASSIDY, ESQ., BETSY IRlTCHINGS, ESQ.
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