Vol. 15 Number 3: Summer 2005 Published by Prisoners' Legal Services of New York

Supreme Court Upholds Law
Protecting Inmates' Religious Freedom
The Supreme Court this term upheld an
act of Congress which grants heightened
protection to inmates' religious practices.
The decision, Cutter v. Wilkinson, 125
S.Ct. 2113 (2005), upheld the constitutionality
of the Religious Land Use and Institutionalized
Persons Act ("RLUIPA").
The RLUIPA states that there must he a
"compelling" reason for any government action
which "substantially burdens" free exercise of
religion, and the burden imposed must be the .
"least restrictive means" by which the
government can meet its interest.
Ordinarily, government actions which
burden the constitutional rights of inmates will
be upheld if they are "reasonably related to
legitimate security concerns." See Turner v.
Safley, 482 U.S. 78, 107 S.Ct 2254 (1987).
RLUlPA thus provides greater protection for the
free exercise ofreligion than that provided to the
other constitutional rights of inmates.
The prisoner-plaintiffs in the case
included a Satanist, a Wiccan, followers of the
Asatru religion, and members of the Church of
Jesus Christ Christian.
A previous version ofthe law, known as
the Religious Freedom Restoration Act, had
been struck down because the Court found that

Congress had exceeded its power to pass laws
effecting the states. Specifically, the Court found
that Congress had not adequately established
that inmates' religious freedom was significantly
burdened by prison administrators.
article continued on page 2...

Also Inside...
PLS Focuses on
Mental Health Law

page 4

Appellate Court Reverses
Parole Board

page 17

Court Clarifies Rules in
"Witness Refusal" Cases ... , ... page 14
Pro Se Practice: Is A Mail Watch
Authorization Necessary to
Uphold a Conviction for
Correspondeuce Violations? ..... page 22
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Pro Se VoL 15 No.3 Summer 2005

Page 2

article continuedfrom page 1...

placed on the practice of religion in the prison
enviromnent.
"The 'free exercise of religioll,'" wrote
the Court, "often involves not only belief and
profession but the perfol1l1ance of physical acts
such as assembling with others for worship
service or participating in sacramental use of
bread and wine. [RLUIPA] covers state-run
institutions [such as prisons] in which the
government exerts a degree of control
unparalleled in civilian society and severely
disabling to private religious exercise. [It] thus
protects institutionalized persons who are unable
freely to attend to their religious needs and are
therefore dependent on the govermnent's
permission and accommodation for exercise of
their religion."
That said, the Court cautioned that
RLUIPA does not "elevate accommodation of
religious observances over an institution's need
to maintain order and safety." "Our decisions,"
wrote the Court, "indicate that an
accommodation of [religious rights] must be
measured so that it does not override other
significant interests."
Despite this caveat, RLUIPA provides
inmates with a stronger tool for challenging
prison policies that unnecessarily or arbitrarily
inhibit their religious practices. (The statute can
be read at 42 U.S.C. § 2000cc-l(a)(I)-(2).)

Before passing RLUIP A, Congress held
hearings on the state of religious freedom in
prison. The hearings showed many instances in
which prison administrators imposed barriers to
inmates' free exercise of religion which were
frivolous, arbitrary, or unrelated to any
legitimate governrnental interest.
The hearings showed that in Ohio, prison
administrators refused to provide Muslims with
Hallal food, even though it provided Kosher
food to Jewish inmates. In Michigan, prison
officials prohibited the lighting of Chanukah
candles, even though "smoking" and "votive
candles" were pel1l1itted. In Oklahoma, a priest
responsible for communications between Roman
Catholic dioceses and corrections facilities
testified that there "was [a] nearly yearly battle
over the Catholic use of Sacramental Wine ...
for the celebration of the Mass," and prisoners'
religious possessions, such as the Bible, the
Korall, the Talmud, or items needed by Native
Americans, "were frequently treated with
contempt and were confiscated, damaged or
discarded." In yet another prison, Congress
found that prison officials refused to provide
sack lunches to Jewish imnates to enable them to
break their fasts after nightfall.
The Supreme Court found that RLUIPA
was constitutional, in part, because Congress
had shown the need for it. It also found that the
law did not violate the "establishment clause",
i. c., that part of the First Amendment which
prohibits the governrnent from "establishing" a
religion because it does not favor any particular
religion, but merely seeks to alleviate the
"exceptional" govermnent-created burdens

\

Pro So VoilS No.3 Summer 2005

NEWS AND BRIEFS
Restriction:; and Rhetoric Inten:;~fY Around
Sex Offenders
Following several high-profile cases
around the nation, in which convicted sexoffenders were accused of assaulting children,
legislators around New York are preparing a
new wave of restrictive legislation concerning
sex-offenders. For example, Binghamton's City
Council recently passed an ordinance restricting
the movement of persons convicted of sex
crimes, barring them from being within a
quarter-mile radius ofschools, day-care centers,
playgrounds, and parks. (A map of the city
showing the zones from which sex-offenders
would be excluded under the ordinance shows
that virtually the entire city is off-limits.)
Proponents of the ordinance concede that it is
probably illegal and the issue is likely to end up
in City Court, which is itselfwithin a zone from
which offenders are barred.
Similar local legislation has been
introduced in Staten Island and is being
considered elsewhere. An Albany County
legislator, for example, is planning to introduce
a ban on sex offenders "living within a mile of
schools, bus stops, day care facilities, or
playgrounds."
Besides banishing persons convicted of
sex offenses from specified areas, those who
believe that current restrictions are not enough
have proposed tracking them with global
positioning technology, increasing the use of
web sites ahout oftenders, and other measures.
Several proposals would increase the availability

Poge3

of information about offenders. For instance,
Monroe County is considering the possibility of
making available to individuals the same access
to information about Level 2 sex offenders as
they have to information about sex offenders in
the Level 3 category. See related story, page 18

Rockefeller Drug Reform Hns Limited Effects
Pro Se reported the details oflast year's
reform ofthe draconian Rockefeller Drug Laws
in our previous issue (Spring, 2005). Advocates
for drug law reform, however, have long said
that the new law was only a beginning, not the
end, of what is needed. These assertions are
being borne out as the modest effect of the
legislation is being realized. A recent news item
in the Times-Union Newspaper, for instance,
recognized that "the failure of the new law to
address all but the stiffest of drug penalties is
hurting even those few the limited measure was
designed to assist." The article went on: "Of the
446 Class A-I offenders in the prison system
when [Governor] Pataki signed the new law, 66
have been re-sentenced, but only 21 have been
released as of April 30." Moreover, while the
reform bill provided for some reductions in the
sentences required for future Class B through E
drug offenders, those reductions were not made
retroactive to offenders currently serving time
under the prior scheme, meaning that the prison
population remains swollen with drug offenders
serving needlessly long sentences. (In 1980, only
11 percent of those incarcerated were drug
felons; in 2003, drug felons compl1sed 38
percent ofthe prison population, of whom over
70 percent have never been convicted of a
violent felony.) See related story. page 20

Page 4

Prisoners' Legal Services Focuses on Mental
Health Loll'
The last decade has seen a significant rise
in the number of inmates in the Department of
Correctional Services' ("DOCS"') custody with
serious mental illness. Many such inmates have
a limited ability to control their behavior and
cope with the stresses of a prison environment.
As a result, they are over-represented in
disciplinary and other forms of isolated
confinement, a situation which can further
endanger their mental health. Statistics show that
a disproportionate number of inmate suicides
occur in isolated housing.
Prisoners' Legal Services has a longstanding commitment to providing
representation to imnates with mental illness and
ensuring that they receive appropriate mental
health services while incarcerated. As part of
that work, PLS litigated and settled the class
action Anderson v. Goord, which concerned the
placement of mentally ill inmates in SHU at
Auburn and Green Haven prisons. PLS is also
one of several agencies co-counseling DAI v.
OMil, a class action addressing the custody and
treatment of imnates with mental illness in
isolated housing units (including SHU, keeplock,
and administrative segregation) throughout the
state.
Last year, PLS opened a mental health
law unit. The unit focuses on the extensive
mental health work being performed at PLS. It
monitors the settlement of the Anderson case,
litigates the DAI case, and advocates for inmates
with mental illness housed in SHU.

Pro So VoL 15 No.3 Summer 2005

Monitoring Anderson v. Goord
The Anderson settlement required DOCS
to follow extensive new procedures in
disciplinary cases in which an inmate's mental
health may be at issue, both in determining the
extent to which the inmate be held responsible
for his or her behavior, and in assessing the
penalty to be imposed. (The new procedures are
codified at 7 NYCRR 254.6[b] - [g].) It also
required the establishment of "Special Housing
Case Management Committees," joint
DOCS/Office of Mental Health ("OMil")
panels, which discuss the conduct and mental
health status of SHU inmates who are on the
OMil caseload and which may recommend
changes, including a reduction ofsentence time.
(Earlier articles detailing the terms of the
Anderson settlement can be found in the Winter,
2004 and Winter, 2005 issues of Pro Se.)
Under the terms of the settlement, PLS
has been monitoring how DOCS handles the
new procedures. The monitoring job starts with
the collection and recording ofa huge amount of
data. Over the last year, the mental health unit
reviewed nearly 300 Tier III hearings for
imnates with mental health problems at Auburn
and Green Haven prisons. The unit reviews both
the confidential clinical testimony given at
disciplinary hearings as well as those segments
of the hearing that are not considered
confidential. The non-confidential parts of the
hearing include the reading of inmate's rights,
the testimony of non-clinical witnesses,
documentary evidence and the reading of the
disposition. The Hearing Officer's conduct of
these parts of the hearing is reviewed to
determine whether the Hearing Officer is

Pro Se Volts No.3 Summer 200S

complying with the new hearing procedures
required by Anderson and the extent to which he
or she seemed to consider the inmate's mental
status. The unit also reviews confidential clinical
evidence given about the inmate's mental status.
Under the settlement, a Hearing Officer is
required to consider clinical testimony from
OMH about an inmate's mental health before
rendering a decision. PLS's mental health unit
scrutinizes the quality of the testimony given by
mental health staff and the Hearing Officers'
responses to it.
The mental health unit also reviews the
minutes of Case Management Committee
("CMC") meeting and presents our findings and
recommendations to the Anderson defendants.
CMC minutes are reviewed to determine if
inmates are being properly monitored at Green
Haven and Auburn. This review includes taking
note as to the frequency in which inmates are
reviewed by the CMCs, the adequacy of the
review, CMC recommendations as to the
suspension or reduction in SHU time, and CMC
recommendations restoring privileges to inmates
in SHU.
Litigating Dtsability Advocates Inc. v. New York
Siale Office orMental Health et al.
In addition to monitoring Anderson,
PLS's mental health unit, in conjunction with the
Legal Aid Society, Disability Advocates, Inc.,
and a private law firm, Polk & Wardwell,
litigates this class action against the New York
State OMH and DOCS. The lawsuit, filed three
years ago, seeks systemic relieffor inmates with
serious mental illness confined in DOCS'
custody.
Since the case was filed, we have

PageS

conducted prison inspections with psychiatric
and security experts at eleven prisons and the
Cental New York Psychiatric Center,
interviewed approximately 360 inmates,
reviewed the mental health records for 730
inmates and taken close to torty depositions.
During the course ofthat time, the State
has taken steps which acknowledge the need to
make greater efforts to serve inmates with
mental illness. It recently opened a Behavioral
Health Units ("BHU") at Great Meadow and
Sullivan Correctional Facilities, a residential
therapeutic program designed to help inmates
"who have been in SHU often for long periods
of time" to "eventually return to General
Population or other appropriate programs in the
Department ofCorrectional Services (DOCS)."
We are currently gathering additional
information about the BHU program.
PLS will continue to focus on the needs
ofinmates in DOCS' custody with mental illness
through litigation and advocacy efforts. As an
agency, we are strongly committed to improving
the care and treatment for this population.

Pro So Vol. 15 No.3 Summer 2005

hge6

Federal Cases
Supreme Court Decisions

Due Process: Court Holds Minimal
Procedures Sufficient for "Supermax"
Assignment
Wilkinson v. Austin, 125 S.Ct. 2384 (June 13,
2005)
The Supreme Court held this tenn that
minimal, "infonnal" procedures are sufficient to
protect the due process rights ofan inmate prior
to his placement in Ohio's "supermax"
correctional facility. The procedures approved
by the Court are significantly less than those that
would be required to take away an inmate's
good time or revoke his parole, even though
conditions in the "supennax" at issue are
extremely harsh.
The Court described the conditions in the
"Ohio Super-Maximum Prison" ("OSP") as
follows:
[A]Imost every aspect of an inmate's
life is controlled and monitored. Inmates
must remain in their cells, which measure
7 by 14 feet, for 23 hours per day. A
light remains on in the cell at all times,
though it is sometimes dimmed, and an
inmate who attempts to shield the light
to sleep is subject to further discipline.
During the one hour per day that an
irunate may leave his cell, access is
limited to one of two indoor recreation
cells.
Incarceration at OSP is synonymous

with extreme isolation. In contrast to any
other Ohio prison, including any
segregation unit, OSP cells have solid
metal doors with metal strips along their
sides and bottoms which prevent
conversation or communication with
other inmates. All meals are taken alone
in the inmate's cell instead of in a
common eating area. Opportunities for
visitation are rare and all events are
conducted through glass walls. It is fair
to say OSP inmates are deprived of
almost any environmental or sensory
stimuli and of almost all human contact.
Aside from the severity of the
conditions, placement at OSP is for an
indefinite period oftime, limited only by
an inmate's sentence. For an inmate
serving a life sentence, there is no
indication how long he may be
incarcerated at OSP once assigned there.
The due process clause ofthe fourteenth
amendment states that the government carmot
take away "life, liberty or property" without
providing "due process oflaw." "Due process of
law" refers to the procedures the government
must follow before "taking" someone's life,
liberty or property. The procedures may range
from mere notice that the government intends to
take a particular action up to a full trial of the
sort required to put someone in prison. The
Supreme Court has developed "balancing tests"
to determine how much process must be
provided prior to any given "taking." The tests
usually weigh the nature of the interest at stake,
i.e., life, liberty or property, against the strength
ofthe state's interest in taking and the value, in
tenns of correct decision-making, of providing
more process.

Pro Se Vol 15 No. 3 Summer 2005

The first question in this case was
whether inmates even had a liberty interest in
staying out of OSP. In the past, the Court has
held that only conditions of confinement that
impose an "atypical and significant hardship on
the inmate in relation to the ordinary incidents of
prison life" will give rise to a liberty interest.
Here, the Court had no trouble finding that the
harshness of OSP met that test, and that,
therefore, inmates were entitled to some process
prior to being placed there. The next question
was, How much process?
Ohio determines who gets placed in OSP
as foHows: First, a security level
recommendation is made to a three-member
Classification Committee. Then, the
Classification Committee reviews the proposal
and holds a hearing. An inmate is provided with
written notice ofthe hearing, which summarizes
the conduct or offense triggering the
classification review. The inmate may attend the
hearing and may "offer any pertinent
information, explanation and/or objections to
[OSP] placement," but he may not call
witnesses. If the Committee recommends a
change in classification which will result in an
OSP placement, the recommendation is
forwarded to the warden, who must give final
approval. Ifthe warden approves the placement,
a copy ofthe recommendation, setting forth the
reasons for the decision, is given to the inmate.
The inmate then has 15 days in which to appeal
the recommendation to the Bureau of
Classification. Ifboth the warden and the Bureau
approve the classification, the inmate is
transferred to OSP. Once assigned to OSP,
inmates receive another review within 30 days of
their arrival and then annually thereafter.
The Court in Wilkinson weighed three

Page 7

factors in assessing whether this process was
adequate: first, the nature of the liberty interest
affected; second, the risk of an erroneous
deprivation of liberty with the procedures in
place; and third, the government's interest,
including the fiscal and administrative burdens
that additional procedural requirement would
involve.
Applying those factors, the Court found
that Ohio's process was sutllcient. With respect
to the first factor, the Court held that, although
an inmate's interest in avoiding an erroneous
placement at OSP was "more than minimal," the
interest had to be seen in the context of the
prison system as a whole: "The liberty of
prisoners is curtailed by definition," the Court
noted. What was at issue in this case was merely
a change in the conditions of confinement, not
freedom from all confinement. Therefore, the
Court reasoned, the process provided need not
be as extensive as that provided when the right
at stake is the right to be free from all
confinement (such as, for example, in a parole
revocation hearing, or in a disciplinary hearing
where good time is at stake).
With respect to the second factor, the
Court found that Ohio's policies minimized the
risk of an erroneous placement in OSP by
providing multiple levels of review by various
decision makers, and by providing imuates with
notice of the grounds for the placement and a
fair opportunity for rebuttal, as well as a
placement review 30 days after the initial
assignment.
With respect to the final factor, the
Court found that Ohio's interest in protecting its
staff, the public, and other inmates was
paramount: "Ohio's first obligation must be to
ensure the safety off,>uards and prison personnel,

Page 8

the public, and the prisoners themselves," wrote
the Court. "Prison security, imperiled by the
brutal reality of prison gangs, provides the
backdrop of the State's interest." The Court
wrote that were the State required to provide
additional procedures betore ordering a transfer
to OSP, such as the rigbt to call witnesses, both
the objective of controlling the prisoner and its
greater objective of controlling the prison could
be defeated.
"Where, as here," the Court concluded,
"the inquiry draws primarily on the experience of
prison administrators, and where the State's
interest implicates the safety of other inmates
and prison personnel," informal, non-adversary
procedures "provide the appropriate model."
Note: The question ofwhether conditions in
the OSC may violate the Eighth Amendment·s ban
against Cnlel and unusual punishment were not
presented in this case.

Second Cireuit Decisions
The Second Circuit Court ofAppeals is the
FederalAppeals Court withjurisdiction overftderal
cases that arise in New York. It is the level ofcourt
directly below the Supreme Court. lts decisions are
considered precedent in New York and musi be
followed by the ftderal district courts in New York.

Denial ofHepatitis-CMedication May Violate
Eighth Amendment: Case Should Go To Jury
Johnson v. Wright, 412 F.3 3a8 (2d Cif. 2005)
Imnate Johnson suffers from Hepatitis C.
Over a period of approximately two years, his
doctors repeatedly reco1l11l1ended that he be
placed on Rebetron therapy to treat his Hepatitis
C condition. DOCS, however, has a policy that

Pro Se Vol. 15 No.3 Sommer 2005

"generally forbids the prescription of Hep C
medication to any prisoner with evidence of
active substance abuse within the preceding two
years." Since Johnson had, on one occasion,
approximately twelve months earlier, tested
positive for marijuana use, DOCS over-ruled the
advice of the doctors and refused to prescribe
Johnson with the requested treatment. Johnson
sued, claiming deliberate indifference to his
medical needs.
A district court rejected his claim. The
court held that DOCS officials were not
deliberately indifferent to Johnson's serious
medical needs because their refusal to treat him
was medically justifiable. Their treatment (or
lack thereof) was consistent with the DOCS'
Practice Guideline and the Guideline "was based
on medical evidence that was apparently reliable
at the time." "[B]ecause defendants reasonably
could have believed that the policy embodied in
the Guideline was medically justified, Johnson
necessarily could not prove that they acted with
deliberate indifference in initially refusing to
prescribe Ribavirin to him." (Pro Se reported the
district court decision in our October, 2004
issue.)
The 2d Circuit reversed. The question,
the Court held, "is not whether the Guideline's
substance abuse policy is generally justifiable,
but whether ajnry could find that the application
of the policy in plaintiff's case could have
amonnted to deliberate indifference to plaintitrs
medical needs." Here, the Court found,
"[b]ecause the defendants reflexively applied
DOCS policy in the face of the unanimous,
express, and repeated...reco1l11l1endations of
plaintitrs treating physicians, including prison
physicians, we believe a jury could reasonably

Page 9

Pro Se Vol IS No. 3 Summer 2005

find that the defendants here acted with
deliberate indifference to the plaintiff's medical
needs. "
A jury, the Court noted, could find that
"the defendants sincerely and honestly believed
that they were required to comply with the
substance abuse policy articulated in the
Guideline and that applying this policy was, in
plaintiff's case, medically justifiable." However,
the Court pointed out, a jury could just as easily
find that "defendants here did. .. know ot: and
disregard an excessive risk to, plaintiff's health."
Practice pointer: An inmate
complainingaboutmedicalcare infederal court
must prove that DOCS was "deliberately
indifferent" to a "sertous" medical need in
order to prevail. A "serilms" medical need is
one whichpresents "a condition ofurgency, " or
that "may produce death, degeneration, or
extreme pain." To act with "deliberate
indifference, "prison personnel must have both
known of and disregarded "an excessive risk"
to the plaintiff's health. This is a greater
showing than mere negligence. The prisoner
must show that the defendant was both "aware
(if facts .from which the inference could be
drawn that a substantial risk ~f serious harm
ex/st[ed!, and [that the defendant drew] the
inference. " See Farmer v. Brennan. 511 U.S. at
834 (1994)
Note: DOCS' policyoflimit/ng Hepatitis·C
treatment to persons with active substance abuse
within the preceding two years remains
controverSial, a controversy Pro Se reported on at
greater length in our Fall, 2003 issue. In that issue,
we also reported on two State court challenges to
the policy. In one ofthose cases, In re Application
of Domenech. the inmate succeeded in reversing
DOCS' decision to exclude him from treatment.
That case was recently affirmed by the Appellate

Division. We report the decision in this issue, at
page 19.

Jury Instructions Upheld In
Amendment u',e ofForce Case

Eighth

Baskerville v. Mulvaney, 411 F.3d 45 (2nd Cir.
June 3, 2005)
The question in this case was: What
exactly must an inmate prove to win an Eighth
Amendment excessive use-of-force claim?
Plaintiff Baskerville alleged that two
correction officers used excessive force against
him in violation of the Eighth Amendment, and
subjected him to racial discrimination and
religious retaliation in violation ofhis Fourteenth
and First Amendment rights. Baskerville alleged
that the defendants used excessive force during
a-take down based on their suspicion that he was
in possession of contraband, repeatedly hitting
him on the head and neck while saying, "All of
you niggers think you are something special
talking that F arrakhan shit. .. Call Farrakhan
now." The case went to trial. At the conclusion
ofthe trial, the court instructed the jury on what
it would have to find in order to find the
defendants liable. We quote the court's
instructions at length because they are
instructive. The court stated:
To establish a constitutional violation
under the Eighth Ameadment a plaintiff
must meet both an objective and a subjective
requirement. To satisfY the objective
requirement the plaintiffmust prove that the
violation is sufficiently serions or harmful
eaough by objective standards. The objective
component is "context specific, turning upon
'contemporary standard~ of deceacy.'"
Hence, a de minimis [minimal]use offorce

Fagel0

will rarely be sufficiently selious or
harmful enough. In other words, not every
push or shove, even if it may later seem
unnecessary, violates a prisoner's
constitutional rights.
To meet the subjective requirement,
the plaintiffmust prove that one or more
of the defendants had a wanton state of
mind when they were engaging in the
alleged misconduct. Wantonness turns
upon whether the force was applied in a
good-faith effort to maintain or restore
discipline, or maliciously or sadistically
to cause harm. To determinewhetherthe
defendants acted maliciously you should
base your determination on factors
including: 1, the extent of the plaintiffs
injuries; 2, the need for the application of
force; 3, the correlation between the
need and the amount of force used and
the threat reasonably perceived by the
defendants; 4, any efforts made by the
defendants to temper the severity of a
forceful response. You may also
consider whether the force was applied
in order to retaliate against the plaintiff
for his religious expression or to
discriminate against him on the basis of
his race. If an evaluation of these and/or
other factors leads you to conclude that
one or more of the defendants acted
maliciously, wantonness has been
established and an Eighth Amendment
violation has occurred. If, on the other
hand, reflection upon these factors leads
you to find that the defendants acted in a
good-faith effort to maintain and restore
discipline, no constitutional violation has
occurred because the subjective
component of the claim has not heen
satisfied.
In order for the plaintiffto prove that

Pro So Vol. 15 No.3 Summer 2005

one or more of the defendants violated
his Eighth Amendment right to be free
from excessive force, the plaintiff must
prove by a preponderance of the
evidence both the objective and
subjective requirements.
The jury found against Baskerville.
Baskerville appealed. In his appeal, he argued
that the court's instructions were too restrictive.
According to Baskerville, the court should have
instructed the jury that even a minimal amount
of force could sustain an Eighth Amendment
violation, so long as the actions of the officers
were malicious or sadistic. The 2d Circuit
disagreed.
In Hudsonv. McMillian, 503 U.S. 1, 112
S.Ct. 995 (1992), the Supreme Court indicated
that there could be a case where "de minimis"
force might be enough to sustain an Eighth
Amendment claim. Here, however, the Court
found that the use offorce alleged by Baskerville
was not de minimis and therefore, there was "no
danger that the jury might have considered the
conduct at issue to have been 'malicious,' yet
not sufficiently serious to meet the objective test
as described by the court."
Baskerville also argued that the district
court had erred by instructing the jury that if it
found no excessive use offorce, then it need not
consider claims of religious retaliation. The 2d
Circuit rejected this argument, as well.
The court held that there may be cases
where a push or a shove might not be enough
force to state an excessive use of force claim,
but still be actionable if motivated by racial
discrimination or religious retaliation. Here,
however, the instructions explicitly allowed the
jury to consider 'whether the force was applied

Pro Se Volts No.3 Summer 200S

in order to retaliate against the plaintiff for his
religious expression or to discriminate against
him on the basis of his race.' This instruction
provided the jury with adequate opportunity to
consider the defendants' possible motivations
and to find that their conduct was "malicious and
sadistic" ifit was motivated by Baskerville's race
or religion.

DOCS Wins Case On Restricted Diet
Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002)
on remand to 2005 WL 1313444 (WD.N.Y.
June 1,2005)
The constitutionality of DOCS' use of
the "loaf' diet continues to be a source of
controversy and litigation. The "loaf," a bland
and solid concoction offlour, milk, yeast, sugar,
salt, margarine, potatoes, and carrots, is used by
DOCS as a punishment for inmates in extreme
cases. An inmate on the loaf is suspended from
the regular prison food service and given only
the "loaf' three times a day. DOCS argues that
nutritionists have analyzed the loafand reported
that it meets health and dietary standards. A
number of inmates, however, have argued that
being placed on the loaf amounts to cruel and
unusual punishment.
In this case, which Pro Se has been
following since our March, 2003 issue, inmate
Phelps alleged that his placement on the diet for
fourteen days was "cruel and unusual" because
it failed to mect proper nutritional standards,
caused him to lose over thirty pounds, and
caused severe abdominal pain and emotional
distress.
Phelps won a preliminary round in 2002,
when the 2d Circuit Court ofAppeals ruled that

Page 11

his complaint stated a claim because he alleged
the defendants "knew or recklessly disregarded
that the restricted diet... was nutritionally
inadequate" and knew their actions "were likely
to inflict pain and suffering and extreme
emotional distress."
Upon remand, however, the district
court dismissed his complaint without ruling on
the underlying constitutional claims. It dismissed
On the grounds that none of the defendants he
named were personally involved in his placement
on the loaf, or that they were entitled to
qualified immunity.
The "personal involvement" of each
defendant is required in a federal Section 1983
lawsuit. It is not enough to merely sue the State
of New York. (This is because the Eleventh
Amendment to the Constitution grants the states
immunity in federal court.) Instead, the lawsuit
must name particular defendants, and each
defendant must have some personal involvement
in the matter being complained of
In Colon v. Coughlin, 58 F.3d 865 (2d
Cir. 1995), the court held that the personal
involvement ofa defendant can be established in
one of five ways: 1) the defendant participated
directly in the alleged constitutional violation;
2) the defendant, after being informed of the
alleged constitutional violation, failed to remedy
it; 3) the defendant created a policy or custom
nnder which the allegedly unconstitutional
practices occurred; 4) the defendant was grossly
negligent in supervising subordinates who
committed the wrongful acts; or 5) the
defendant exhibited deliberate indifference to the
rights ofinmates by failing to act on information
indicating that unconstitutional acts were
occumng.
In Phelps, there were four defendants:

Page 12

Kapnolas, Delaney, McGinnis, and McClellan.
Defendant Kapnolas wrote the misbehavior
report which resulted in Phelps being placed on
the loaf However, Phelps admitted at his
deposition that Kapnolas had nothing to do with
him being placed on the diet. Kapnolas argued,
and the Court found, that he didn't know that
Phelps would be placed on the diet as
punishment and, even if he did, he was not
aware of any nutritional deficiencies associated
with the diet.
Another defendant, Delaney, was the
Hearing Officer at the disciplinary hearing which
resulted in the loaf diet being imposed. The
court noted that even if Delaney knew of the
restricted diet order, Phelps failed to introduce
evidence that "Delaney knew ofand disregarded
an excessive risk to plaintifTs health or safety, or
that she was both aware of facts from which the
inference could be drawn that a substantial risk
of serious harm existed and that she drew that
inference."
Defendant McGinnis was the
Superintendent of the facility. Phelps testified
that he wrote letters to McGinnis complaining
that the loaf was "rotten." The court found that
the evidence in the record before it failed "to
establish that McGinnis was put on notice ofthe
constitutional nature of the complaint, or that
the food being served to plaintiff on the
restricted diet was causing him to receive
inadequate nutrition."
Even if the defendants had sufficient
personal involvement, the court continued, they
would be entitled to qualified immunity. A
prison official is entitled to qualified immunity
when "their conduct does not violate clearly

Pro Se Vol. 15 No. 3 Summer 2005

established statutory or constitutional rights of
which a reasonable person would have known."
Here, the court found that the defendants should
be "pennitted to rely on the DOCS' directive
requiring that inmates be given a sufficient
quantity of wholesome and nutritious food."
Since there was no evidence on the record that
any of the defendants personally knew that the
loafdid not provide adequate nutrition, the court
found that there was no basis to conclude that
any of the defendants acted in an "objectively
unreasonable manner." In making this
determination, the court relied, in part, on the
fact that there has not yet been any other cases
finding that DOCS' "loaf" diet is nutritionally
deficient.
Note: The court came to a different
conclusion in Rodriguez v. McGinnis, 2004 WL
{145911 (WD.NY) (May 18,2004). In that case,
which also involved a restricted diet, the court
concluded that the defendants were not entitled to
qualified immunity. The court held: "At the time of
the alleged incidents it was well established that
deliberately denying an inmate adequate food and
deliberately failing to address serious medical
concerns could violate the inmate's constitutional
rights. " Unlike the plaintiffin Phelps, the plaintiff
in Rodriguez submitted expert testimony on the
nutritional inadequacy ofthe diet, Mr. Rodriguez's
medical condition, his inability to eat the diet, and
the defendants' apparent knowledge that numerous
inmates, including Mr. Rodriguez, had claimed to
be unable to stomach the diet. This evidence created
a question of fact as to whether the defendants
should have reasonably believed that they were not
Violating plaintiffRodriguez' constitutional rights
by imposing the restricted diet. We reported on
Rodri('uez in the October, 2004 issue ofPro !Ie.

Pro So Vol 15 No.3 Summer 2005

Court Holds Pro Se Complaints GtJVerned by
Minimal Standflrd~
Phillips v. Girdic!1408 F.3d 124 (2d Cir. 2005)
PlaintiffClifton Phillips was incarcerated
at Upstate. He wanted to file a lawsuit against
his jailers but he had no access to an attorney.
He initiated his lawsuit pro se by filling out a
form called "Inmate Civil Rights Complaint
Pursuant to 42 U.S.C. § 1983."
Phillips named several administrators at
Upstate as defendants. He then wrote more than
ten single-spaced pages stating why he was
suing. He submitted the form, plus the ten pages,
as his complaint. The complaint alleged that he
had been denied contact visits and subjected to
a pattern of harassment because of his race.
Most of the ten pages contained, according to
the court, "a litany of allegations purporting to
demonstrate that black inmates were treated
differently than white inmates" It asserted three
legal claims: "systematic harassment" in
violation of the Eighth Amendment's ban on
cruel and unusual punishment; a denial of
contact visits in violation of the First
Amendment; and race and gender discrimination
in violation of the Fourteenth Amendment.
The District Court rejected the complaint
as confusing and inadequate. It ordered Phillips
to file a new complaint that included "a
corresponding number ofparagraphs ... for each
allegation, with each paragraph specifYing (i) the
alleged act of misconduct; (ii) the date on which
such misconduct occnrred; (iii) the names of
each individual who participated in such
misconduct; (iv) where appropriate, the location
where the alleged misconduct occurred; and (v)
the nexus between such misconduct and

Page 13

Plaintiff's civil and/or constitutional rights"
After Phillips failed to file a complaint that
satisfied the court, the court dismissed his claim.
Phillips appealed.
The question before the Second Circuit
was: What are the minimal standards for a prose complaint? Another question was: Can a
district court dismiss a complaint simply because
it is not artful? The court held that the standards
for a pro-se complaint are minimal, and that the
lower court was mistaken in dismissing the
complaint.
"The claims ofpro-se litigants should be
construed liberally," Wlote the court. They
should not be dismissed unless "it is clear that
the plaintiffwould not be entitled to reliefunder
any set offacts that could be proved consistent
with the allegations." "Federal rules of
procedure," continued the court, "command us
never to exalt form over substance." Lower
courts should, therefore, "excuse technical
pleading irregularities as long as they neither
undermine the purpose of notice nor prejudice
the adverse party." Specifically, the rules
requiring that a complaint be separated into
numbered paragraphs were designed only to
"facilitate the clear presentation of the matters
set forth," so that allegations might easily be
referenced. They should be read only as a
guideline to ensure that complaints are "simple,
concise, and direct." "Where the absence of
numbering or succinct paragraphs does not
interfere with one's ability to understand the
claims or otherwise prejudice the adverse party,
the pleading should be accepted."
Phillips' complaint met minimal
standards. It named particular defendants and it
contained specific allegations about their
conduct which, read liberally, supported the

Pro Se Vol. 15 No.3 Summer 2005

Page 14

legal claims he was making. His complaint about
racism, for instance, was supported by his
allegations that white inmates who had engaged
in misbehavior similar to his had not lost their
contact visiting privileges, while he had. The
court wrote:
Although Phillips' allegations were not
neatly parsed and included a great deal of
irrelevant detail, that is not unnsual from a
pro-se litigant. As long as his mistakes do
not prejudice his opponent, a plaintiff is
entitled to trial on even a tenuous legal
theory, supported hythe thiImest ofevidencc.
To the extent that the court helow demanded
something more than Phillips provided, it
erred.

District Court
Inmate Was Not Denied Access To Court
Davidson v. Murray, 371 F.Supp.2d 361
(W.D.NY 2005)
An inmate who has filed many lawsuits
recently lost a case in the federal District Court
for the Westem District Court of New York in
which he claimed that prison administrators had
denied him adequate access to court. The court
found that the alleged refusal by corrections
officers at Attica to respond to inmate
Davidson's requests for legal writing supplies
and certain law books did not violate his right of
access to court.
Although the United States Constitution
guarantees prisoners a "meaningful right of
access to the courts," the court found that this
does not translate into an "abstract, freestanding
right" to have a law library or legal assistance. In
other words, the court found, "prison law

libraries and legal assistance programs are not
ends in themselves, but only the means for
ensuring a reasonably adequate opportunity to
present claimed violations of fundamental
constitutional rights to the courtS." In order to
establish a violation of the right of access to the
courts, an inmate must show more than a refusal
to provide legal materials. He must demonstrate
"actual injury," that is, "that a non-frivolous
legal claim had been frustrated or was being
impeded" due to the actions or inaction ofprison
officials.
In Mr. Davidson's case, the court noted
that despite the inmate's claim of denial of
access to the courts, he had filed fifteen federal
civil rights actions in the district courts during
the three years he was Attica, at least sixteen
appeals in the Second Circuit of Appeals, and
eighteen claims in New York State courts. In the
present case, moreover, he had made more than
one hundred written submissions to the court in
the form of letters, motions, affidavits,
memoranda of law, and others. Under the
circumstances, the court found that no
reasonable juror could conclude that Davidson
had been denied adequate access to the courts.
It dismissed his suit.

State Cases
Discipline

Court Outlines Rules Governing "Witness
Refusal" Cases
Matter of Hill v. Selsky. 795 NYS. 2d 794
(3d Dep't 2005)

PagelS

Pro Se V 6\ \5 N6. 3 Summer 2005

The confusing law of "witness refusal"
cases--disciplinary cases in which an inmate's
proposed witness refuses to testifY--has been
clarified, or at least consolidated, by the court in
Matter of Hill v. Selsky. The question in Hill
was: What must a Hearing Officer do to protect
an accused inmate's right to obtain testimony in
his defense when a proposed inmate witness
refuses to testifY? The answer: It depends.
The facts of the case are as follows:
Petitioner Hill was charged with failing to
produce a urine sample after he allegedly
dribbled water from his mouth into thc specimen
cup. He denied the charge and the matter
proceeded to a superintendent's hearing. Prior to
the hearing, he asked his employee assistant to
interview two potential witness, both inmates at
the same facility. Both ofthe potential witnesses
told the assistant that they would testifY. On the
day of the hearing, however, the corrections
officers sent to escort the witnesses to the
hearing room reported that they had both
refused to testif}', and that they also refused to
give a reason for their refusal to testifY. The
Hearing Officer then sent a sergeant to interview
the witnesses. The sergeant also reported that
the witnesses refused to testifY and refused to
provide a reason for their reluctance. The
hearing then proceeded without the witnesses
and Hill was found guilty. In his subsequent
Article 78 proceeding, he argued that the
Hearing Officer was required to personally
interview the witnesses to verifY that they were
refusing to testifY or to ascertain their reasons
for refusing.
The court looked upon the case as "an
opportunity to set forth the circumstances in
which a Hearing Officer conducting a Tier m
prison disciplinary proceeding must personally

ascertain the reasons for the refusal ofan inmate
witness to testif}' on behalf of the charged
inmate." Prior cases, the court found, had
established the following rules:

o

If there has been no inquiry into the reason
for the witness's refusal to testif}', a
deprivation of the inmate's right to present
witnesses will be found, regardless of
whether the witness had previously agreed
to testifY or not.

o

If the witness did not previously agree to
testifY and a reason for his refusal to testifY
appears in the record, no violation of the
right to call witnesses will be found.

o

If the witness did not previously agree to
testifY and no reason for the refusal appears
in the record, the Hearing Officer must
conduct an inquiry into the reason for the
refusal; however, an inquiry through a
correction officer will be sufficient.

o

If the refusing witness previously agreed to
testif}' and subsequently refuses to do so, the
Hearing Officer is not required to conduct a
personal inquiry, so long as: I) a genuine
reason for the witness's refusal appears in
the record; and 2) the Hearing Officer made
a sufficient inquiry through a correction
sergeant to determine the authenticity ofthat
reason. However, the mere statement by a
witness that he "[did] not want to be
involved" is not a sufficient reason to excuse
a personal interview by the Hearing Officer.

o

If the refusing witness previously agreed to

testifY and now refuses to do so and gives no
reason for the refusal, the Hearing Officer
must personally ascertain the reason for the

Page 16

inmate's unwillingness to testifY. If, however,
the Hearing Officer conducts a personal
interview with the witness but is unable to
elicit a genuine reason for the witness's
reluctance to testifY, the charged inmate's
right to call witnesses will have been
adequately protected.
Here, the court held that the case tell into
the last of the above categories. The two
witnesses had previously agreed to testifY but,
when the time came, refused and would give no
reason for their refusal. Under the
circumstances, the Hearing Officer was obliged
to personally interview the potential witnesses to
try to detennine what caused them to change
their minds. "Petitioner's right to call witnesses
was not adequately protected by third-person
interviews because the Hearing Officer lacked
the opportunity to j\ldge the authenticity of the
witnesses' refusals." Accordingly, the hearing
was reversed.
Practice pointer: ff all ofthese rules sound
confilsing it is because they are. They represent an
accumulation ofrules derived from many difjerent
cases over a long period <?ftime. Nevertheless, this
is a "good-as-it-is-likely-going-to-get" summary of
the current state of the law of "witness refUsal"
cases. If you have a case involVing a witness who
refused to testify, read the above rules car~fijlly io
determine under which category your case jails.

Denial of Assault Victim's Medical Records
Held Harmless Error
Matter of Cody v. Goord, 794 N.Y.S. 2d 149
(3d Dep't 2005)
Petitioner Cody was found guilty of
assaulting a staff member. After he filed an

Pro Se Vol. 15 No. 3 Summer 2005

Article 78 proceeding, the court found that there
was strong evidence to SUppOit his guilt,
including the testimony of the officer who was
assaulted. The Petitioner complained, however,
that it had been an error for the Hearing Officer
to rethse to allow him to view the medical
records of the assaulted correction officer's
injuries. The court agreed. "[A]Ithough [the
medical records were] not dispositive of
Petitioner's guilt or innocence of the assault on
staff charge, they were relevant thereto." But,
the court continued, the Hearing Officer's error
in failing to provide them "was harmless in light
of the overwhelming evidence of Petitioner's
guilt and the fact that [he] did not rely on the
subject medical records as part of the basis for
determination."
Practice Pointer: Courts have given
conjlicting answers to the question ofwhether the
medical records ofan assault victim are relevant in
the disciplinary hearing ofthe accused assailant. In
addition to this case, the court in both Brown v.
Goord, 750 NY.S2d 800 (3d Dep't 2002) and
Auricchio v. Goord, 7/3 N.Y.S.2d 888 (3d Dep't
2000), held that the jililure to prOVide medical
records ofassault victims was in error, but in each
of these cases, the error was deemed harmless (in
Brown because the evidence was contained in other
documents in the record; in Auricchio, as in this
case, because of the "overwhelming evidence" of
the Petitioner's gUilt.) Other cases have held that
injuries ofthe victim are irrelevant to the question
of whether an assault occurred. See Ouiles v.
Goord, 705 NY.S2d 256 (3d Dep 't 2000); Irby v.
Kellv. 556 N. Y.S2d 409 (3d Dep't 1990)

A Night on the Town?
Matter of Calhoun v. Selsky, 795 N.Y.S.2d 406
(3d Dep't 2005)

Pro Se VoltS No.3 Summer 2005

Petitioner Calhoun left the correctional
facility where he was incarcerated, having
obtained a pass for an overnight visit home.
When he returned, he was charged with having
absconded from temporary release. At his
disciplinary proceeding, he testified that a
counselor gave him permission to leave the
facility overnight in return for a payment of
$120.00. The Hearing Officer found him guilty
and the court affirmed. The record indicated that
Calhoun had been advised during orientation
that intJlates were only eligible for overnight
passes after 30 days of incarceration. Calhoun
was not eligible for a pass because he had not
been at the facility for 30 days. This, together
with his admission that he had paid a counselor
for the pass, constituted substantial evidence of
his guilt.
There is no word in the decision ofwhat
became ofthe Corrections Counselor.
Parole

Rare Occurrence: Court Reverses Board of
Parole, Orders New Hearing
MatterofWallmanv. Travis, 794N.Y.S. 2d381
(I" Dep't 2005)
Court decisions over-ruling the Parole
Board are not quite as infrequent as sightings of
the Dodo bird, but they are few and far between.
In general, the courts grant the Parole Board
great deference. Couli challenges to parole
denials are typically rejected with minimal
examination of the record and boilerplate
language, such as, "The Board [has] considered
all [the] relevant statutory factors and there
being no showing of 'irrationality bordering on

Paget7

impropriety,' further judicial review is
prohibited." See Parmes v. Travis, 792 N.Y.S.2d
881 (3d Dep't 2005)
So it was a welcome surprise this quarter
when, in Matter ofWallman v. Travis, the court
took a close look at a Parole Board decision,
and reversed it. The Petitioner was a 64-year-old
former attorney serving a 3%- to
10-year sentence for stealing from his clients'
escrow accounts. While in priSOll, he had a good
disciplinary record and had obtained an Earned
Eligibility Certificate. At his parole hearing, he
submitted numerous letters from persons
supporting his request for parole. He also
attempted to explain his misconduct, expressed
remorse for his acts, and stated that he intended
to fulfill his repayment obligations if and when
released.
Nevertheless, the Board denied parole. It
Wrote that there was a "reasonable probability
that [Wallman], if released, would not live and
remain at liberty without violating the law," and
that his release was "incompatible with the
welfare and satety of the community." The
Board supported its decision by noting that
Wallman's crime involved several million
dollars, that the conduct took place over a long
period of time, and that the thefts came from
"injured persons looking tor redress." In
addition, the Board found, Wallman showed
"limited insight" into his crimes.
The court reversed. Initially, the court
noted that the Board's determination that there
was a "reasonable probability" that Wallman
would not be able to live at liberty without
violating the law appeared to be based
exclusively on the nature and seriousness of his
crime. When a Parole Board decision relies
exclusively on the severity ofthe offense to deny

Page 18

parole, the court held, it "contravenes the
[sentencing] scheme mandated by the [penal
law] [and] effectively constitutes an
unauthorized re-sentencing of the defendant"
The only other reason fbI' denying parole
that was given by the Board was Wallman's
alleged lack of insight into his crime. The court
found, however, that the Board's conclusion on
this issue was both "perfunctory" and
contradicted by what had actually happened at
the hearing. At the hearing, the court pointed
out, the Petitioner had repeatedly shown
remorse for his crimes and insight about why
they had occurred. The Board's argument to the
contrary mis-represented the record. Far from
minimizing his conduct, the record showed,
Wallman had answered the questions put to him
frankly and directly. The Board's arguments to
the contrary took his answers out ofcontext and
ignored his repeated assertions of personal
responsibility. Since there was thus no basis for
the Board's assertion that Wallman lacked
insight into his crime, and the only other basis
for the Board's conclusion that he could not live
and remain in society without violating the law
was the seriousness of his offense, the decision
was "irrational bordering on impropriety."
Practice pointer: As this discussion
suggests, the standard against which Parole Board
decisions are measured is whether they are
"irrational bordering on impropriety." This is a
very difficult standard to meet. Generally, where
there ts evtdence in the record that the Board
considered the factors listed under Executive Law §
259-i(c)(A), the Board's decision will be upheld
unless, as indicated, the decision is so irrational as
to "border on impropriety." In this case, the
Petitioner had an advantage: he had obtained an
"Earned Eligibility Certificate" under Correction
Law § 805. That statutes provides that persons who

Pro Se Vol. 15 No.3 Summer 2005

have obtained an earned eligibtlity certificate
"shall" be granted parole at the expiration of the
mintmum term unless the Board makes an
additional finding: "that there is a reasonable
probability that, if such person is released, he will
not live and remain at liberty without violating the
law and that his release is not compatible with the
welfare ofsociety. " Here, the court found that the
granting of the Earned Eligibility Certificate
"creates a presumption infavor ofparole release. "

Fai/ure of Sex Offender to Find "Suitable
Housing" Deemed Sufficient Ground for
Denial of Conditional Release
Matter ofBillups v. New York State Division of
Parole, 795 NY-S.2d 408 (3d Dep't 2005)
One symptom of the ever-increasing
scrutiny of convicted sex offenders (see article,
Page 3) has been the imposition by the Division
of Parole of stringent "special conditions" upon
the conditional release of such offenders. The
conditions, which must be met before either
parole or conditional release may be granted,
typically limit where and with whom the
offender may live. In practice, they often have
the effect of making release all but impossible.
Critics of the Division have argued that
such impossible-to-meet conditions are too often
merely a pretext for ensuring that sex offenders
are not released at all prior to the expiration of
their maximum terms. Critics have argued that
such conditions violate both the letter and the
spirit of Penal Law § 70.40(1)(b), which states
that an inmate serving an indeterminate term
who has been granted all of his Good Time
"shall" be conditionally released after serving
two-thirds of the maximum term. The Board
counters, however, that the statute also gives it

Pro Se Vol1S No.3 Summer 2005

the authority to establish "conditions" ofrelease,
and that if it establishes conditions which the
inmate can not meet, it need not release him.
The courts have consistently upheld the
Board in these cases.
InMonroev. Travis, 721 N.Y.S.2d 377
(2d Dep't 200 I), for example, the Division
required that the Petitioner secure housing in a
residence where a responsible adult lived who
was willing to cooperate with the Petitioner's
Parole Officer, and which could not be near a
potential victim. The Petitioner was unsuccessful
in finding housing deemed appropriate by the
Division and the Division refused to release him
to a homeless shelter. The court held that
"contrary to the Petitioner's contention, it is
within the discretion of the Division to impose
the special condition of securing approved
housing, even though the condition must be
satisfied before his request ofconditional release
can be granted."
The present case, Matter of Billups,
continues that trend. In this case, the Petitioner's
conditional release date was March 13, 2002.
The Division refused to release him due to his
tailure to find what it deemed a "suitable
residence." The court broadly affirmed the
authority ofthe Division, holding: "The Division
is authorized to impose special conditions upon
an inmate's release from prison [and] imposition
of the requirement of a suitable residence was
rational under the circumstances [ofthis case]."
Medical Cat'e

State Appeals Court Uphohls Lower Court
Determination TllatDOCS' BartoHepatitis-C
Treatment Constitutes Deliberate Indifference

Page 19

In re Application of Domenech, 797 N.Y.S.2d
313, (2d Dep't, 2005)
In the Fall, 2003 issue of Pro Se, we
reported on two state cases which reviewed
DOCS' guidelines for providing Hepatitis-C
treatment to prisoners. In People ex reL Sandson
v. Duncan, 761 N.Y.S.2d 379 (3d Dep't 2003),
the prisoner sued, claiming that DOCS' refusal
to provide him with Hep-C treatment constituted
cruel and unusual punishment in violation ofthe
Eighth Amendment. The court tbund in favor of
DOCS. The court reasoned that because the
Petitioner had failed to complete a substance
abuse treatment program and had continued to
use controlled suhstances, DOCS was medically
justified in withholding treatment. Sandson
subsequently filed a motion for leave to appeal
to the Court of Appeals, which was denied.
Domenech fared better. In Domenech,
the inmate also claimed that DOCS' refusal to
provide him with Hepatitis-C treatment violated
his Eighth Amendment rights. As in Sandso!!,
DOCS denied treatment because ofthe imnate's
history of drug use. The undisputed facts ofthe
case, however, showed that Domenech had been
drug free for over thirty years. The lower court
found that DOCS' rigid adherence to its
guidelines, regardless of the individual
circumstances involved in this case, constituted
a deliberate denial ofmedical care in violation of
the Eighth Amendment.
The State appealed the lower court's
fulding. The appellate court has recently issued
a decision on the case, affirming the lower
court's decision. The court held: "Under the
circumstances ofthis case, the denial ofmedical
treatment to the Petitioner prison imnate
pursuant to the appellants' medical treatment

Page 20

policy constituted deliberate indifference to his
medical condition in violation of the u.s.
Constitution Eighth Amendment."

Inf/Ulte Obtains Reduced Sentence Under
Rockefeller Drug Law Reform Act
People v. Carson, 2005 WL 1403776 (June 13,
2005)
In the last issue of Pro Se (Spring,
2005), we summarized the provisions of the
Roekefeller DmgLaw Refonn Act (the"DRA"),
the new law intended to moderate the
notoriously harsh sentences required for some
dmg offenses, particularly A-I offenses, since
the 1970s. The Refonn Act has many
shortcomings (and many critics; see article,
Page 3); however, it is plainly a boon to the 400
or so inmates presently serving 15-to-life or 25to-life sentences as a result ofconvictions for AI drug offenses. Under the law, they may
petition a court to have their sentences reduced
to a determinate sentence of between 8 and 20
years.
People v. Carson shows the process in
practice. Defendant Carson was sentenced to 15
years to life after being convicted of one count
ofCriminal Sale ofa Controlled Substance in the
First Degree in 1999. After passage of the
Refonn Act late last year, he petitioned the
sentencing court to have his sentenced reduced
to a determinate sentence within the new
guideline range. The act states that the court
"shall" grant a re-sentencing petition unless
"substantial justice dictates that the application

Pro Se Vol. 15 No.3 Summer 2005

should be denied." Here, the People conceded
that "substantial justice" would not be opposed
to re-sentencing.
The question remained, however, what
the new sentence would be. As noted, the new
law gives the court discretion to impose a
deternlinate sentence of anywhere from 8 to 20
years. Carson argued that he should be resentenced to the statutory minimum of 8 years.
The People urged that he should receive a new
sentence of 14 years.
The Refonn Act states that when
considering a new sentence, the court "may
consider any facts or circumstances relevant to
the imposition ofa new sentence [as well as] the
institutional record of confinement of such
person... " Carson presented the court with
many mitigating facts to support his position that
he should be re-sentenced to the minimum tenn
of incarceration of 8 years: he had no prior
felony record; the sentence he received of 15
years to life was much harsher than the sentence
of 6 years to life received by his co-defendant
(who did have a prior felony conviction),
especially in light of the fact that the defendant
was interested in settling this matter but was
forced to trial due to his co-defendant's lack of
interest in a plea and the People's choice not to
sever the cases; that at sentencing the court was
in receipt of nearly 50 letters of support written
on his behalf from family, friends, and
community members; that his institutional record
for infractions is minimal; that he successfully
completed numerous rehabilitation, vocational,
and educational programs, including earning his
GED; that he worked while incarcerated in
numerous positions and earned favorable
reviews at those tasks; and that should he be

Pro So VoilS No. 3 Summer 200S

released sooner rather than later, the defendant
has employment opportunities waiting for him,
a home with his mother, family support, and a
family friend who is a social worker who is
willing to assist him.
In view of all of these factors, the court
gra.nted the defendant's request for an 8-year
determinate sentence.

Family

of Deceasell Inmate Awarded

$377,200.00

Arias v. State ofNew York, N. Y. CtCl. Claim #
97942 (2004)

Pro Se reported in our Summer, 2003
issue that the State ofNew York had been found
liable for the death of William Newborn, an
inmate. On July 19, 1997, Mr. Newborn, an
imnate with a history of mental illness, told a
social worker that if he were denied parole, he
would commit suicide. On July 29, 1997, he was
denied parole. Three days later, he overdosed on
Pamelor, an anti-depressant and one of at least
three prescriptions in his possession.
An investigation by the State
Commission of Correetion Medical Review
Board found Green Haven's medical and
pharmacy staff deticient in managing
Mr. Newborn's medication, especially since they
failed to adhere to regulations that all
psychotropiC medications must be administered
by a nurse. In the earlier opinion, the court
granted the plaintiff, Mr. Newborn's mother,
summary judgment on various theories of
negligence, including medical malpractice. The
most recent decision deals solely with damages.

Page 21

According to the court, after attempting
to commit suicide, Mr. Newborn was brought to
an outside hospital, where he underwent a
tracheotomy and suffered pulmonary
thromboembolism and bronchopneumonia. A
doctor testified that Mr. Newborn choked to
death over two weeks.
The judge awarded $350,000 for
Mr. Newborn's suffering during the two weeks
he was in the hospital. The court granted no
award for lost wages, since Mr. Newborn had
been in and out of various institutions since he
was 12 years old, and had never earned enough
to file a tax return. New York law does not
permit damages for the grief suffered by
survivors in a wronf,rfi.d death case, so no
additional damages could be given to the fiunily
for its suffering. But the court did find one
provision that enabled it to award
Mr. Newborn's mother $25,000.
Prison regulations clearly state that when
an imnate is hospitalized in an outside facility,
the next of kin must be alerted. Here, the family
knew nothing of Mr. Newborn's overdose and
hospitalization until after he had died. The
mother, Christine Newborn Arias, testified that
she learned of her son's death from a priest
"She stated she felt overwhehrting
sadness, anger and guilt," wrote the court. "She
stated that if she had been told her son was in
the hospital, she would have gone to visit and
comfort him. She stated that she lives with anger
and guilt every day of her life beeause her son
died all alone. "
The total award amounted to $377,200,
including damages for Mr. Newborn's pain and
suffering, funeral expenses, and the personal
claim on behalf of the mother.

Page 22

Family of Pennsylvania Inmate Awarded 2.5
Million in Wrongful Death L'laim
The family of a Permsylvania woman
who suffered a fatal asthma attack while in
prison will receive $2.15 million in a settlement
of a lawsuit against the State Department of
Corrections and a health care provider,
Evidence in a federal lawsuit filed by the
fatnily showed that the inmate, Erin Finley, 26,
died on August 29, 2002 after medical personnel
at the State Correctional Institution at Muncy
ignored her repeated pleas for help, She
desperately sought medical care for severe
asthma she had had since she was a child, but
she was repeatedly rejected, based on a prison
doctor's belief that she was "faking" her
symptoms,
According to the lawsuit, Finley was
transferred to SCI Muncy on July 2, 2002, She
experienced problems with her asthma and was
seen at the prison infirmary, Over the next
month, she returned to the infirmary several
times, but medical personnel disregarded her
complaints,
That disregard was documented by at
least three written requests Finley made, in
which she begged prison officials to reverse
rulings made by Dr, Craig Bardell, an employee
of the prison, who prohibited her from having
steroids that helped control her asthma,
"I really feel like I am going to die if
nothing is done," Finley wrote in a July 24
grievance filed with a prison nurse, "I'm begging
you to please help me,"
According to the suit, Bardell had
ordered the discontinuance of steroids on
July 15, saying he believed Finley was overusing

Pro Se Vol. 15 No, 3 Summer 2005

and abusing them. He came to that conclusion
without having physically examined her. Finley
continued to have problems breathing, and on
July 27 she wrote another request, asking a
different physician to see her "as soon as
possible," "My asthma is so bad and Dr. Bardell
says I am faking it. I don't know what else to
do," the request stated, On the morning of her
death, Finley phoned her mother in a hysterical
state, saying she could not breathe, At around
noon, she was directed to go to the infirmary,
where a physician's assistant examined her. The
assistant told Bardell that Finley needed to go to
the hospital, but he refused to see her and left
the prison at 2:40 p,m.. Twenty minutes later,
Finley lost consciousness and stopped breathing,
She was transported to an area hospital, where
she was pronounced dead at 4: 11 p.m..

Pro Se Practice
Mu.~t DOC'}Have a Mail WatchAuthorization

to Uphold Disciplinary
Correspondence Violations?

Charges for

This article addresses an inmate's rights
if he or she is disciplined pursuant to a facility
review of that inmate's incoming or outgoing
mail. Procedures for innlate correspondence and
facility review of inmate correspondence are set
forth in Title 7 New York Code, Rules,
Regulations (NYCRR) 720.3 (outgoing mail),
and 7 NYCRR 720.4 (incoming mail), Ifprison
officials seek to discipline an inmate based upon
a violation of the correspondence regulations,
they must be able to show that they have
complied with the procedures for review of

Pro Sc Volt5 No.3 Summer 2005

inmate correspondence (commonly referred to as
"mail watch" procedures) set fOlth in these
regulations.
Pursuant to 7 NYCRR 720.3(e), an
inmate's outgoing mail shall not be opened,
inspected or read without written authorization
from the superintendent. With respect to
outgoing mail, a superintendent is only permitted
to authorize a mail watch, which involves the
opening or inspection of the mail, if there is
reason to believe that a law or disciplinary rule
has been violated, or that the mail threatens the
satety or security ofthe prison or ofany person.
The standards for reviewing incoming
mail, set forth at 7 NYCRR 720.4(e), are slightly
different. As with outgoing mail, incoming mail
may only be read based on the superintendent's
written authorization. A superintendent may
authorize a mail watch of incoming mail only if
there is evidence tbat the mail may contain plans
for sending contraband into or out of a prison,
plans for criminal activity, including escape, or
any information that would present a clear and
present danger to the safety ofany person or the
security of a prison.
In general, courts have held that prison
officials must be able to show that they have
followed their own correspondence policies in
order to impose diseipline based on review of
correspondence. Exactly what prison officials
must do to show that they have followed their
own correspondence regulations is not,
however, totally clear. The Appellate Division
Fourth Department has spoken to this issue in at
least three cases: Knight v. Goord, 681
N.Y.S.2d 719 (4 lh Dep't 1998); Chavis v.
Goord, 697 N. Y. S.2d 409 (4lh Dep't 1999); and
Ode v. Kelly, 552 N.Y.S.2d 475 (4lh Dep't
1990). In Knight, the Fourth Department held

Page 23

that where discipline charges are based on
review ofan inmate's outgoing correspondence,
the hearing record must contain the
superintendent's written mail watch
authorization, which must explain reasons for
the mail watch. There, a Tier ill hearing
disposition was reversed because the hearing
record did not contain the mail watch
authorization, and therefore failed to show that
prison officials had followed their own
procedures for inspecting inmate mail.
In Chavis, the Fourth Department
addressed the issue of a facility's review of an
inmate's incoming mail. In that case, the court
held that 7 NYCRR 720.4(f) "provides that
written authorization from the facility
superintendent to read incoming correspondence
must be placed in the inmate's file and that such
authorization must be based upon b'rounds
related to 'safety, security and order.'" Chavis,
697 N.Y.S.2d at 409. Because there was no
written authorization allowing the facility to
inspect the incoming mail, the court, relying on
its earlier decision in Knight, reversed the
disciplinary disposition.
In Ode, although a mail watch
authorization was apparently included in the
record of a Tier ill hearing, the hearing
disposition was reversed because the mail watch
authorization was inadequate. The court held
that the authorization did not "set forth specific
facts forming the basis for the action," as
required by the regulation. Ode, 552 N.Y. S. 2d at
475.
The Appellate Division, Third
Department, approaches mail watch issues
somewhat differently. The Third Department has
held that when an inmate is disciplined on the
basis of review of his mail, the hearing record

Pro se Vol. 15 No.3 Summer 2005

Page 24

must contain substantial evidence that there was
a properly authorized mail watch, although the
actual mail watch authorization is not required.
Thus, in Knight v. McGinnis, 781 N.Y.S.2d 716
(3fd Dep't 2004), the Third Department found
that there was enough evidence to establish an
authoriz.ed mail watch, through testimony and
other evidence, even though the actual mail
watch authorization was not in the hearing
record. Knight. 781 N.Y.S.2d at 716.
If you are charged with misbehavior
based on review of correspondence, you should
be sure to request the mail watch authorization
or other evidence that would demonstrate that

there was a properly authorized mail watch. You
can request the mail watch authorization or
other evidence from your employee assistant,
and ifyou do not receive this material from your
assistant, you can request it directly from the
Hearing Officer. If the Hearing Officer denies
your request, or if you feel that the evidence
does not show that a mail watch was authorized
based on the applicable regulations, be sure to
object on the record, and raise the issue in your
administrative appeal.

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EDITORS: JOEL LANDAU, ESQ; KAREN MURTAGH-MONKS, ESQ.
CONTRIBUTORS: BETSY STERLING, ESQ.; lAMES BOGIN, ESQ.
COPY EDITING: ALETA ALBERT; FRANCES GOLDBERG
PRODUCTION: FRANCES GOLDBERG
DISTRIBUTION: MORGAN GARDNER; BETH HARDESTY
EXECUTIVE DmECTOR: JERRY WEIN

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