Vol. 17, No. 1; Winter 2007 Published by Prisoners’ Legal Services of New York

GOOD NEWS / BAD NEWS
Governor Cuts Calling Costs

Governor Signs Civil Commitment Bill

Seven days into his first term, Governor Eliot
Spitzer issued an executive order which will sharply
cut the cost of a collect call from a prison.
The governor’s move, which will become
effective on April 1, 2007, came one day before the
State was scheduled to defend its prison telephone
rates before the Court of Appeals in a lawsuit
brought by inmates and their family members.
At issue was a sur-charge that the State had
imposed on collect calls made from prisons.
Advocates for inmates and their family members
had charged that the surcharge raised the rates of
prison telephone calls by as much as 300 percent
over that paid by regular consumers. Under the
State’s contract with MCI, some 60 percent of that
excess revenue was kicked back to the Department
of Correctional Services (“DOCS”). DOCS, in turn,
used the extra revenue to pay for special security
systems associated with the prison phone system,
some aspects of prison health care, and a variety of
other programs, such as the family reunion program.
Under Governor Pataki, DOCS had long defended
the charges as a reasonable way to raise revenue to
provide services that it is not obligated to provide

The New York State Legislature has passed a
sweeping new law aimed at sex offenders which
would permit the civil commitment of such
offenders long after their terms of incarceration
have ended. Governor Spitzer has announced that
he will sign the bill.
The new law comes in response to growing
public pressure for a civil commitment bill and after
the Court of Appeals, late last year, ruled that
outgoing Gov. Pataki’s efforts to civilly confine
…article continued on page 3

Also Inside…
Decision: Parole Appeals
Can Only Be Filed Where
Inmate Incarcerated . . . . . . . . . page 6
Pro Se Practice: Litigating
in the Court of Claims . . . . . . . . page 19
Subscribe to Pro Se! See back page for details

…article continued on page 3

This project is supported in part by grants from the New York State Division of Criminal Justice Services, the New York State Bar
Foundation, and the Tompkins County Bar Association. Points of view in this document are those of the author and do not represent
the official position or policies of the grantors.

Page 2

Pro Se Vol. 17, No. 1; Winter 2007

PRO SE KEEPS GROWING
A Letter From Susan Johnson, Executive Director
With the beginning of the new year comes a new
volume of Pro Se. But, as with any project, there are
costs and expenses and as Pro Se expands, the costs
associated with production continue to grow. In 2002,
the New York State Bar Foundation provided PLS with
a three-year grant of $15,000.00 per year to help offset
the production and distribution costs of Pro Se. That
grant helped tremendously and we are eternally grateful
to the New York State Bar for its generosity. In addition,
for the second year in a row, we have received a
donation from the Tompkins County Bar Association for
Pro Se. I would like to personally thank members of the
Tompkins County Bar Association for
their continued generosity and support.
The history of Pro Se, and of
Prisoners’ Legal Services, has been
interesting, to say the least. As an
organization, PLS has suffered through
tumultuous times, but we have remained
steady with respect to our commitment to
publishing Pro Se. The first issue of Pro Se was
published in November 1984. It was six pages long. Our
goal was to produce four issues annually, and for the
most part, we met that goal. As word got out and new
readers wrote to us asking to be added to our mailing list,
each issue saw an increase in length and distribution. By
January 1986, Pro Se had jumped to 12 pages in length
and over 2,000 prisoners in New York State were on our
mailing list.
December 1987 brought about computer production
of Pro Se. The ease of editing resulted in the Winter
1988 issue of Pro Se leaping to 16 pages. At the same
time, the first PWA (“Persons With AIDS”) Support
Newsletter was produced as an insert to Pro Se to
respond to the increasing concerns over HIV/AIDS in
our prisons. We were on a roll--providing crucial
information concerning legal rights and remedies to
prisoners across New York State. We did not foresee the
possible demise of Pro Se, PWA, or PLS. The 1994
election of Governor Pataki opened our eyes.

The cover of the 1995 Winter issue of Pro Se read:
“This Could Be The Final Issue of Pro Se.” Prior to
1995, PLS had been in the Governor’s budget for 17
years, but in 1995, Governor Pataki erased PLS from the
Executive Budget. We were stunned. Thanks to the
efforts of the New York State Legislature, our funding
was later restored. In the next edition of Pro Se, the
cover read, “We Have Survived.” That issue was
24 pages long! Although Winter 1995 was not our last
issue, the title foreshadowed dark days ahead for PLS. In
1998, Governor Pataki not only failed to include PLS in
the Executive budget but he vetoed the state legislature’s
allocation of 4.75 million dollars for PLS.
The 1998 Winter issue of Pro Se was a
goodbye issue. The 1998 Summer issue of
PWA Support, which had become a
separate newsletter, also noted it may be
the last issue, and it indeed was.
PLS was closed and remained closed
for over a year. In October 1999, PLS was
restored to the state budget by the Legislature, but
coming back was not that easy. We had lost many
experienced staff, had to find office space, buy
equipment, and interview and hire new staff. It was not
until December 2002 that PLS had the staff and
resources to begin producing Pro Se again.
Since that time, we have stood by our commitment
to producing an informative, educational newsletter that
includes descriptions of recent cases, updates on recent
legislation, articles on areas affecting inmates’ rights,
and discussions of DOCS’ policy changes. We have also
stood by our commitment to providing our newsletter to
anyone who requests it free of charge. In demonstration
of that commitment, our most recent issue of Pro Se,
Volume 16 No. 4; December 2006, consisted of 32 pages
and was sent to over 4,000 prisoners in New York State
and 290 outside agencies. In addition, approximately 600
issues of Pro Se were sent to various prison law libraries
across the state.

Pro Se Vol. 17, No. 1: Winter 2007

Page 3

Governor Cuts Calling Costs

Governor Signs Civic Commitment Bill

…continued from page 1

…continued from page 1

and which benefit family members. The
arrangement is estimated to have earned about $16
million in 2005.
Prisoners and their families had argued,
however, that that arrangement amounted to an
unlegislated tax imposed solely on the family
members of inmates who depend on inmate phone
calls to stay in contact with their incarcerated loved
ones. They argued that the practice essentially
charged family members for their relative’s
incarceration.
“[DOCS was] taking advantage of the high price
to cover the cost of programs and services that the
prison system should be providing in any case,”
said Robert Gangi, the Executive Director of the
Correctional Association of New York, a non-profit
group that monitors conditions in state prisons.
According to the pending lawsuit, the exorbitant
phone rates forced some family members to choose
between maintaining their relationship with a loved
one or putting food on the table. One plaintiff, for
example, Ivey Walton, is 71 years old and disabled,
and cannot travel the 350 miles to see her son and
nephew in the Clinton Correctional Facility. But,
she says, she also cannot afford to receive their
phone calls. A bill of 66 minutes worth of calls cost
her $54.30.
Under the changes ordered by Governor Spitzer,
the State will no longer share in revenue generated
from the prison phone calls, and the cost of a
20-minute call would fall to about $3.00 from its
current price of about $6.20.
Prisoner advocates praised Governor Spitzer for
making the change and, in particular, for doing so
without abolishing any of the prison programs for
which the fees helped pay. Those programs will
now be paid for out of the State’s general revenues.

sex offenders under then-existing laws were illegal.
The new law, however, goes well beyond
providing for civil commitment. It is, instead, being
characterized as “a comprehensive program for the
management of persons convicted of felony sex
offenses.” In addition to its civil commitment
provisions, it creates: a new felony category of
“Sexually Motivated Felony;” requires that all sex
offenders receive determinate (i.e., “flat”) sentences
of incarceration; greatly expands the applicable
periods of post-release supervision; calls for
intensive parole supervision; requires that sex
offenders receive in-prison treatment; and creates a
new “Office of Sex Offender Management” to
coordinate and implement its various provisions.
The following is a summary of the bill’s
contents.
Civil Commitment
Eligibility: An offender would be eligible for civil
commitment if he or she: was convicted and is
serving a sentence for a felony sex offense and
“suffers from a mental abnormality which results in
a serious difficulty controlling illegal sexual
behavior.”
Initial Screening: Qualifying offenders who are
nearing the completion of their sentences would be
screened for possible civil commitment by a case
review panel at least 120 days before their
anticipated release. The case review panel will be
established by the Commissioner of the Office of
Mental Health and will consist of appropriate
mental health professionals with experience in sex
offender evaluation and treatment. If the case
review panel determines that the offender is an
eligible sex offender who suffers from a mental

Page 4

abnormality, the Attorney General may file a
petition and initiate civil commitment proceedings.
Initial Commitment Petition: The Attorney General
would be authorized to bring a civil commitment
petition before the court in the county in which the
offender is located. The offender can designate the
county of conviction for hearings and trial.
Counsel: Indigent offenders subject to potential
civil commitment proceedings would be represented
by the Mental Hygiene Legal Service (“MHLS”).
Probable Cause Hearing: After the petition is filed,
the court will conduct a hearing, without a jury, to
determine whether there is probable cause to hold
the offender for trial.
Psychiatric Examination: The court can appoint two
psychiatric examiners to evaluate the offender, one
chosen by the Attorney General and one chosen by
the offender. Each psychiatric examiner will
provide a report to the court and provide testimony
in the civil commitment proceeding. All psychiatric
examiners shall be free to exercise independent,
professional judgment.
Trial: An offender would be subject to civil
commitment if found unanimously by a jury by
clear and convincing evidence to suffer from a
mental abnormality and to be likely to commit a sex
offense if not confined or supervised. Following the
jury verdict, the judge will determine whether the
person should be confined in a secure facility or
placed on a regimen of strict and intensive
supervision and treatment.
Placement: Offenders would be confined in
facilities operated by the State Office of Mental
Health. The statute would require the strict
separation of civilly-committed sexual offenders
from persons with mental disabilities who are
housed in mental hygiene facilities.

Pro Se Vol. 17, No. 1; Winter 2007

Court Review: Confined offenders could seek to
have their status reviewed by the courts each year.
In the event a court finds that confinement is no
longer warranted, the person would be released to a
regimen of strict and intensive supervision and
treatment.
Mandatory In-Prison Sex Offender Treatment
Sex offender treatment will be made available to
all inmates serving a sentence for a felony sex
offense. Inmates will be assessed for the need for
treatment upon admission to prison and treatment
must continue for at least six months. Treatment
programs will be operated in conjunction with the
State Office of Mental Health. Such programs must
meet treatment standards set by the new Office of
Sex Offender Management created by the
legislation.
Parole Supervision
Offenders who are not civilly committed may be
ordered to a regimen of strict and intensive parole
supervision, under the supervision of the Division
of Parole and must comply with conditions set by
the court. Conditions of supervision may include:
electronic monitoring and global positioning
satellite tracking; polygraph monitoring; and
residence restrictions. Persons on supervision who
violate the terms of supervision could be returned to
confinement.
Tougher Prison Sentences and Extended Periods of
Supervision
All future offenders convicted of a felony sex
offense, including the new “sexually motivated
felony,” will receive a determinate (i.e., non-parole
eligible) sentence and will be subject to greatly
increased periods of post-release supervision, some
up to 25 years.

Pro Se Vol. 17, No. 1: Winter 2007

NEWS AND BRIEFS

Supreme Court Eases Limits on Prison Suits
Twelve years ago, Congress passed the “Prison
Litigation Reform Act” (the “PLRA”), a law with
one simple purpose: to make it harder for prisoners
to file lawsuits challenging illegal or
unconstitutional prison conditions.
Among its provisions, the PLRA requires
inmates to exhaust available administrative
remedies before filing a suit concerning prison
conditions in federal court, putting their ability to
file a federal lawsuit at the mercy of short deadlines
and complicated procedures common to many
prison grievance processes.
The PLRA has had its intended effect. It has
dramatically limited the number of prison
conditions suits that are successfully litigated in the
federal courts.
Some federal courts, however, went beyond the
plain text of the PLRA and imposed additional
procedural rules to make it even harder for inmates
to file a lawsuit.
The Sixth Circuit Court of Appeals, which
covers the states of Ohio, Kentucky, Tennessee, and
Michigan, was particularly notorious for imposing
procedural rules on inmate lawsuits that went above
and beyond the strict requirements of the PLRA.
In a series of decisions over the last decade, it
held:
q that inmates filing lawsuits about prison
conditions had to submit proof that they had
exhausted their administrative remedies before
the lawsuit could even be served (in contrast to
the ordinary federal rule that places the burden
on the defendant of showing, as a defense, that
the plaintiff had failed to meet an exhaustion
requirement); and
q that prisoners could not sue anyone they had not
first named during the internal grievance
process; and

Page 5

q that a lawsuit that contained a mixture of
exhausted and unexhausted claims should be
dismissed in its entirety rather than be allowed
to proceed on the exhausted claims.
This past January, in a case called Jones v.
Bock, 127 S.Ct. 910, the Supreme Court reversed
the Sixth Circuit rules, holding that they
overstepped the requirements of the PLRA.
In its opinion, written by Chief Justice Roberts,
the Court stated that it was sympathetic with the
reasons for the Sixth Circuit’s approach. It noted
that prisoners’ lawsuits accounted for nearly 10
percent of all civil cases filed in federal court.
“Most of these cases,” it wrote, “have no merit;
many are frivolous.”
Nevertheless, the Court wrote, “our legal
system…remains committed to guaranteeing that
prisoner claims of illegal conduct by their
custodians are fairly handled according to law. The
challenge lies in ensuring that the flood of nonmeritorious claims does not submerge and
effectively preclude consideration of the allegations
with merit.”
The barriers imposed on prisoner lawsuits by
the Sixth Circuit, the Court found, “cannot fairly be
viewed as a correct interpretation of the PLRA.”
Unless Congress explicitly provided otherwise, the
Supreme Court explained, courts should apply to
prisoners’ lawsuits the same procedural rules they
apply to any other lawsuit and “should generally not
depart from the usual practice under the federal
rules on the basis of perceived policy concerns.”
The ruling was greeted with relief by advocates
for prisoners’ rights, who said the lower court’s
approach had threatened to make it all but
impossible for an inmate not represented by a
lawyer to navigate the procedural hurdles to get a
case accepted for a hearing.
“A loss would have been devastating,” said
Elizabeth Alexander, Director of the National
Prison Project of the American Civil Liberties
Union, which filed a brief in support of three
Michigan inmates whose separate cases were
consolidated by the court for a single decision.

Page 6

Dismissed by the United States Court of Appeals
for the Sixth Circuit, their complaints about their
treatment are now reinstated.
This decision marks the first time in a
half-dozen rulings on the PLRA that the Supreme
Court has not adopted the interpretation least
favorable to inmates.
Practice pointer: The rules adopted by the Sixth
Circuit had been rejected by the Second Circuit, the
federal appeals court that covers cases brought in
New York. Thus, this decision, while a relief, does
not affect the rules that had been applied to the
federal lawsuits of New York inmates.
Appellate Court Holds Challenge to Parole Denial
Must Be Brought Either Where Inmate is
Incarcerated or in Which Parole Has Central
Office; Cannot Be Brought Where Sentence Was
Imposed
Vigilante v. Dennison, 827 N.Y.S.2d 285 (2d Dep’t
2007)
An inmate challenging a parole denial faces an
uphill road, as New York State courts are
notoriously deferential to the decisions of the Parole
Board.
That road may have just become a little bit
steeper as a result of the decision of the Appellate
Division, Second Department, to reject an inmate’s
effort to file his parole appeal in Kings County, the
county in which he was convicted. In doing so, the
court appears to have ended the efforts of many
inmates to file their parole appeals in the county in
which they were convicted, rather than in the
county in which they are incarcerated.
Those efforts had their roots in the perception of
many that downstate judges, especially New York
City judges, were more likely to be sympathetic to
parole appeals than were upstate judges.
At issue were the rules for “venue,” the place
where a lawsuit can be brought. Challenges to a
parole denial are brought in an Article 78
proceeding. The correct “venue” for an Article 78

Pro Se Vol. 17, No. 1; Winter 2007

proceeding is determined by Civil Procedure Law
and Rules § 506(b), which states:
[An article 78 proceeding] shall be
commenced in any county within the
judicial district where the respondent made
the determination complained of or refused
to perform the duty specifically enjoined
upon him by law, or where the proceedings
were brought or taken in the course of
which the matter sought to be restrained
originated, or where the material events
otherwise took place, or where the principal
office of the respondent is located.
Because the Parole Board often relies heavily on
the instant offense in denying parole, many inmates
argued that the underlying crime and sentence was
a “material event” with respect to the parole
decision. Therefore, the inmates argued, they should
be allowed to file their parole challenges in the
judicial district in which the crime was committed
or where the sentence was imposed, e.g., in many
cases, New York City.
Lower courts had gone back and forth on the
question. In one recent case, a court concluded that
the Division of Parole could not “reasonably argue”
that the crime and sentence were not “material
events” with respect to its parole decisions. In
another, a court asserted that Parole’s motion to
move a case from Brooklyn to Albany constituted a
“naked attempt at forum-shopping”--an effort to
shift the case away from “downstate justices”
because they are seen as “more receptive” to
arguments that parole was being improperly denied.
Other courts, however, have rejected inmates’
venue arguments. One court wrote, for instance, that
although the nature of the crime is always material
to the parole determination, its location has “little
connection to the determination at hand--whether
parole is appropriate.” “A contrary conclusion,”
wrote the court, “would give prisoners with lengthy
criminal histories a wide choice of venue options
simply because their convictions were material

Pro Se Vol. 17, No. 1: Winter 2007

Page 7

factors that the [Parole Board] considered in
assessing whether they should be returned to
society.”
In Vigilante, the Appellate Division sided with
the no-venue courts. The court ruled, with little
discussion, “We reject the Petitioner’s
contention…that…venue is proper [in the judicial
district in which he was sentenced] because
his…crime and sentence were ‘material events’
leading to the subject parole determination, within
the meaning of CPLR 506(b).” To the contrary, the
court continued, “the relevant material event was
the decision-making process leading to the
determination under review.”
Practice pointer: Under Vigilante, a challenge
to a parole denial can be brought in the judicial
district in which you are incarcerated or in the
district which includes Albany, where Parole has its
central office.
New York’s 59 counties are divided into twelve
judicial districts (“JDs”) as follows:

É 1st JD - Manhattan;
É 2d JD - Kings and Richmond (Brooklyn and
Staten Island);

É 3d JD - Albany, Columbia, Greene, Rensselaer,
Schoharie, Sullivan, Ulster;

É 4th JD - Clinton, Essex, Franklin, Fulton,
Hamilton, Montgomery, St. Lawrence,
Saratoga, Schenectady, Warren, Washington;

É 5th JD – Herkimer, Jefferson, Lewis, Oneida,
Onondaga, Oswego;

É 6th JD - Broome, Chemung, Chenango,
Cortland, Delaware, Madison,
Schuyler, Tioga, Tompkins;

Ostego,

É 7th JD - Cayuga Livingston, Monroe, Ontario,

Seneca, Steuben, Wayne, Yates;

É 8th JD - Allegany, Cattaraugus, Chautauqua,
Erie, Genesee, Niagara, Orleans, Wyoming;

É 9th JD - Dutchess, Orange, Putnam, Rockland,
Westchester;

É 10th JD - Nassau and Suffolk;
É 11th JD - Queens; and
É 12th JD - the Bronx.
Thus, if you are incarcerated in Clinton
Correctional Facility, in Clinton County, you could
bring a challenge to a parole denial in any of the
Counties within the 4th Judicial District, as that
district includes Clinton County, or in any of the
Counties within the 3d Judicial District, as that
district includes Albany (where Parole has its
central office). Under Vigilante, however, you
would not be able to bring your lawsuit in, for
example, the 1st Judicial District, solely on the
grounds that you were sentenced there.
The Vigilante case was decided by the Second
Department of the State’s Appellate Division. It is
therefore controlling authority for the courts within
that department, including those of Richmond,
Kings, Queens, Nassau, Suffolk, Westchester,
Dutchess, Orange, Rockland, and Putnam Counties.
Vigilante may not be the last word on this issue, as
the other Appellate Departments, particularly the
First Department, with jurisdiction over Manhattan
and the Bronx, have yet to address the parole venue
questions. Case law, however, suggests that lower
courts, no matter where they are located, are
required to follow Vigilante unless or until their
Appellate Departments or the Court of Appeals rule
to the contrary. See Mountain View Coach Lines,
Inc. v. Storms, 476 N.Y.S.2d 918 (2d Dep’t 1984).
The Petitioner in Vigilante was represented by
the Legal Aid Society of New York.

Page 8

Second and Third Departments Adopt Holding in
People v. Bautista in Determining What It Means
To Be Eligible for A-II Drug Offender ReSentencing
In December 2004, New York’s Legislature,
responding to strong criticism of the Rockefeller
Drug Laws, passed legislation alleviating some of
the harshest sentences for non-violent drug
offenses. This legislation is commonly referred to as
the “Rockefeller Drug Law Reform Act” (the
“DLRA”) and it was passed in two incremental
steps. The first step was enacted in January 2005,
and among other reforms, it allowed for the resentencing of all incarcerated A-I drug offenders.
The second step, enacted on October 29, 2005,
allowed for the re-sentencing of A-II drug
offenders. However, with A-II offenders, the
Legislature placed various limits on eligibility for
re-sentencing, including limiting eligibility to any
person in state custody “who is more than twelve
months from being an eligible inmate as that term is
defined in Correction Law § 851(2).” Correction
Law § 851(2), which defines eligibility for
temporary release programs, states that an “eligible
inmate” is one who is “eligible for release on
parole” or who “will become eligible for release on
parole or conditional release” within two years.
The question arose: Must an A-II offender be
“more than twelve months” from his or her parole
eligibility date (i.e., more than one year from parole
eligibility)? or must he or she be “more than twelve
months” from being “within two years” of his or her
parole eligibility date (i.e., more than three years
from parole eligibility)?
Several trial courts were divided over this
question, some holding that inmates were eligible
for re-sentencing as long as they were more than
one year from parole eligibility, while others held
that inmates were not eligible for re-sentencing
unless they were more than three years from parole
eligibility. The issue finally reached an appellate
court in 2006, when the Appellate Division, First

Pro Se Vol. 17, No. 1; Winter 2007

Department decided People v. Bautista, 26 A.D.3d
230, 809 N.Y.S.2d 62 (1st Dep’t 2006). In Bautista,
the First Department held that when read together,
the first two sections of the Correction Law require
that an A-II drug offender be more than three years
from his or her parole eligibility to be eligible for
re-sentencing.
The defendant in People v. Bautista appealed
this decision to the Court of Appeals, hoping that
New York’s highest court would reverse and
declare that an A-II offender need be only one year
from parole eligibility to be eligible for resentencing. Initially, the Court of Appeals agreed to
hear the appeal. But instead of resolving the issue,
the Court of Appeals side-stepped it, dismissed the
appeal, and declared that it lacked the statutory
authority to review the re-sentencing decisions of
the lower courts. See People v. Bautista, 7 N.Y.3d
838, 823 N.Y.S.2d 754 (2006). This means that the
First Department’s decision in Bautista stands--and
A-II offenders must be more than three years from
their parole eligibility dates to be eligible for resentencing.
Since the First Department’s Bautista decision,
two other Appellate Divisions have issued decisions
agreeing that A-II offenders must be at least three
years from parole to be eligible for DLRA resentencing. In People v. Thomas, 826 N.Y.S.2d 456
(3d Dep’t 2006), the Appellate Division, Third
Department held that “in order to qualify for resentencing under the 2005 DLRA, a class A-II
felony drug offender must not be eligible for parole
within three years.” Similarly, in People v. Parris,
828 N.Y.S.2d 429 (2d Dep’t 2006), the Appellate
Division, Second Department held that an inmate
who is less than three years from parole eligibility
is not eligible to be re-sentenced under the DLRA.
Thus, A-II offenders in the First, Second, and Third
Departments must be at least three years from
parole eligibility to qualify for re-sentencing under
the DLRA.
The Appellate Division, Fourth Department has
not yet issued a decision on the issue. Nonetheless,

Pro Se Vol. 17, No. 1: Winter 2007

trial courts in the Fourth Department will likely
follow the rulings in Bautista, Thomas, and Parris.
For example, in People v. Mills, 14 Misc.3d
1220(A), 2007 WL 173840 (Onondaga Co. Ct.,
2007), the Onondaga County Court set aside the
defendant’s re-sentencing under the DLRA. The
defendant had served almost twelve years of a
three-to-life sentence. The court had initially resentenced the Defendant under the DLRA, but upon
the prosecution’s motion, set aside the re-sentencing
in accordance with Bautista, Thomas, and Parris
because the defendant had been less than three years
from parole eligibility at the time of re-sentencing.
The court did so begrudgingly, however, stating the
following:
This Court is of the opinion that while it is
the responsibility of the judge to interpret
the law as written and not rewrite the law, it
is clear that the State Legislature, by this
confusing legislation, has not only failed
their sworn duties in that respect but has
more fundamentally failed to implement the
Legislature’s express intent of ameliorating
long A-II drug sentences by providing more
humane and realistic sentences or A-II drug
felons.... Certainly if the Legislature’s intent
was to ameliorate long A-II drug sentences
it would seem that Mr. Mills and defendants
similarly situated should have been included
within the re-sentencing provision of the
Drug Law Reform Act.
Id. at 5 (emphasis added).
Thus, absent legislative action, it appears that
courts throughout New York will adhere to the First
Department’s decision in Bautista, despite the fact
that this decision fails to fully implement the
Legislature’s intent (as the Mills court showed). For
that reason, on February 14, 2007, PLS submitted
written testimony to a joint Senate and Assembly
Committee on the Public Protection Budget, asking,
among other things, that the Legislature heed the
call of the Mills court--and others--to amend the

Page 9

DLRA to allow for re-sentencing of inmates less
than three years from parole eligibility. PLS will
continue to update inmates on any changes in the
law in future editions of Pro Se.
Federal Cases

Medical Care; Deliberate Indifference: Sergeant
Not Liable For Ignoring Plaintiff’s Injuries
Bell v. Arnone, 455 F.Supp.2d 232 (W.D.N.Y.
2006)
Plaintiff Bell sued Sergeant Arnone for
“deliberate indifference” to his serious medical
needs, in violation of the Eighth Amendment. He
alleged that he was in a strip cell and cut his wrist
with a razor. He stated that when Sergeant Arnone,
who was supervising the Special Housing Unit (the
“SHU”) at the time, was informed of what had
happened, she came and spoke to him, and then told
an officer, “I don't care if he cut himself; we are
going to move him [to a different cell] behind a
shield,” and that she provided him with no medical
attention. On being moved to the new cell, he
alleged, he cut himself again, requiring sutures in
his arms, neck, and right leg.
The Plaintiff’s medical records showed that he
received treatment on October 31, 2004 for
self-inflicted lacerations, which were sutured; that
he was moved to SHU later that day; that he
received a medical visit on November 1st; that he
again cut himself on November 3rd; that he was
again treated and the mental health unit was
contacted. On November 5, 2004, the medical
records stated that the Plaintiff “began to open [his]
previous wounds in his arms [and] refused medical
treatment.” The Plaintiff was given a form to
acknowledge his refusal of treatment but he refused
to sign it. There was no indication in the medical
records that Sergeant Arnone was present during
any of these events.

Page 10

The court dismissed the Plaintiff’s complaint,
finding that his allegations could not support a
claim that Sergeant Arnone had violated his
constitutional rights.
Practice pointer: In order to prevail in federal
court in a medical care case, an inmate must show
that the defendant was “deliberately indifferent” to
his “serious” medical needs. A medical need is
considered “serious” if it presents “‘a condition of
urgency’ that may result in ‘degeneration’ or
‘extreme pain.’” A defendant is “deliberately
indifferent” to an inmate’s serious medical
condition if he or she knew or should have known
about the need for care and either recklessly or
intentionally failed to provide it.
Here, the court found that the Plaintiff’s
medical records showed that he had received
medical treatment for his self-inflicted injuries, and
that on one occasion he refused to accept it. The
medical record also contained no evidence that
Sergeant Arnone had ignored his injuries.

Disciplinary Due Process: Inmate Has No Due
Process Right To Avoid Illegal SHU Confinement,
Where Confinement Was Not “Atypical and
Significant”
Anderson v. Beaver, 455 F.Supp.2d 228 (W.D.N.Y.
2006)
The Plaintiff alleged that he had served two
concurrent, 60-day SHU sentences at Riverview and
been released back to the general population before
being transferred to Orleans. When he arrived at
Orleans, however, the Defendants mistakenly
determined that he had 60 outstanding SHU days
left to serve and returned him to SHU. When he
brought the error to their attention, the Defendants
refused to correct it. He sued DOCS’ officials,

Pro Se Vol. 17, No. 1; Winter 2007

claiming that his second 60-day SHU confinement
constituted a violation of his constitutional right to
due process of law.
The court dismissed his claim, holding that an
inmate has no due process right to avoid being
placed in SHU unless the conditions in SHU are
“atypical and significant” with respect to the
ordinary conditions of prison life. Since the Plaintiff
in this case made no allegation that his 60-day SHU
sentence was “atypical and significant,” his claim
would have to be dismissed, even if the sentence
had been imposed in error.
Practice pointer: The federal constitution gives
all persons the right to “due process of law” before
the state may take their “liberty.” This means that
the state cannot deprive anyone of their liberty
arbitrarily: it must have a good reason for doing so
and it must provide the person whose liberty it seeks
to restrain with an opportunity to contest its
reasoning.
For persons who are already incarcerated,
however--and who have therefore already lost a
good deal of their liberty--the Supreme Court has
held that a transfer from a general prison
population to a SHU does not constitute a loss of
“liberty” unless the conditions in SHU are
“atypical and significant” with respect to the
“ordinary conditions of prison life.” Sandin v.
Conner, 515 U.S. 472 (1995).
In New York, the Second Circuit Court of
Appeals has held that a SHU sentence of 101 days
or more will generally be considered “atypical and
significant,” but that a SHU sentence less than that
will only be considered atypical and significant “if
the conditions [in SHU] were more severe than the
normal SHU conditions.” Palmer v. Richards, 364
F.3d 60, 66 (2d Cir. 2004).
In this case, the Plaintiff served only 60 days in
SHU and he never argued that his time in SHU was
more severe than normal SHU conditions were.
Thus, the court found, he had no “liberty interest”
against being placed in SHU for that period and,
hence, no constitutional right to due process of law.

Pro Se Vol. 17, No. 1: Winter 2007

State Cases

Page 11

inconsistencies in the evidence will not be sufficient
to defeat a finding of guilt if the evidence that the
Hearing Officer relied upon met the “substantial
evidence” test.

Disciplinary Cases
Substantial Evidence: Evidence Supported Drug
Charge; Court Declines to Weigh Competing
Evidence
Excell v. Goord, 824 N.Y.S.2d 575 (3d Dep’t.
2006)
The Petitioner was found guilty of possession of
a controlled substance after a Correction Officer
who was pat frisking him saw him throw two
marijuana cigarettes to the grounds (NIK drugtesting confirmed that the cigarettes were
marijuana). The Petitioner argued that the
information in the Misbehavior Report, the
supporting memorandum, and the Correction
Officer’s hearing testimony demonstrated that the
Officer’s testimony was falsified. The court rejected
this claim. Any inconsistency between the Officer’s
testimony and other documents he had prepared
merely created a credibility issue for the Hearing
Officer to resolve.
Practice pointer: New York courts provide only
minimal review of the evidence presented in a
prison disciplinary hearing. They ask only whether
there was “substantial evidence” of guilt.
“Substantial evidence” has been defined as: “such
relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” 300
Gramatan Avenue Associates v. State Division of
Human Rights, 408 N.Y.S.2d 54 (1978). If the
evidence at the hearing meets that test, the court
will uphold the Hearing Officer’s decision (barring
some significant procedural error). The court will
not weigh competing evidence. It views that as the
job of the Hearing Officer. The court’s job is merely
to ensure that there was sufficient evidence in the
record to support the Hearing Officer’s conclusion.
Thus, the mere fact that there may have been

Substantial Evidence: Evidence Did Not Support
Contraband Charge
Ganz v. Selsky, 823 N.Y.S.2d 582 (3d Dep’t, 2006)
As part of a block cleaning in the Petitioner’s
facility, all the inmates’ furniture was removed from
their cubes and placed in a common area. After the
floors were stripped and waxed, the inmates moved
the furniture back into the cubes. The Petitioner
resided alone in a double-bunk cube. The
Petitioner’s locked locker was returned to his cube
along with an empty locker. The empty lockers
were not numbered or labeled so as to ensure that
they were returned to the same cubes from which
they were removed. The day after the cleanup,
Correction Officers searching the Petitioner’s cube
found a razor blade taped underneath the empty
locker. As a result, the Petitioner was charged and
found guilty of possessing a weapon.
The court found the charge was not supported
by substantial evidence. “While a strong inference
of possession arises as to items found in an inmate's
cell or an area over which an inmate has control,
even if the inmate did not have exclusive control
over the area, that inference is not absolute.” Here,
the Petitioner denied knowledge of the weapon, all
60 inmates in the Petitioner’s block had access to
the empty locker while it was out of his cube, the
locker was only moved into his cube the night
before the weapon was found, there is no proof in
the record that the lockers were searched prior to
their return to the cubes, and there is no proof that
the unmarked empty locker returned to the
Petitioner was the same locker removed from his
cube. “Under the circumstances,” the court noted,
“the weapon could have been attached to the locker
prior to or when it was moved into the Petitioner's
cube.”

Page 12

Practice pointer: DOCS is permitted to draw
reasonable inferences from evidence that it finds of
inmate misconduct. Where the evidence consists of
contraband found in an inmate’s cell, the inference
that the contraband belongs to the resident of the
cell has been described as “virtually irresistible.”
Matter of Hernandez v. Le Fevre, 541 N.Y.S.2d 868,
lv. denied 549 N.Y.S.2d 960. It arises out of the
inmate's control over the cell and the things in it. A
similar inference extends to such things as an
inmate’s locker. Matter of Trudo v. Le Fevre, 504
N.Y.S.2d 68, or an inmate’s coat at a work station
that was within his control. Matter of Mabery v.
Coughlin, 564 N.Y.S.2d 553, lv. denied 570
N.Y.S.2d 488.
However, as this case illustrates, the inference
that contraband found in an area usually controlled
by a particular inmate belongs to that inmate, while
strong, is not absolute. It can be rebutted by
evidence that the place where the contraband was
found was not under the inmate’s control. For
example, courts have dismissed charges of
misconduct against an inmate arising from
contraband found in an unlocked storage area
which was separate and apart from the inmate’s
locker. Trudo, supra. Courts have also rejected
DOCS’ claims that a gun, found in a package which
was addressed to an inmate, brought into the
facility by a visitor, constituted sufficient evidence
that the inmate tried to bring it in (Matter of
Sanchez v. Coughlin, 518 N.Y.S.2d 456), and that a
knife found in the leg of a bed in a cell, into which
an inmate had just been transferred several day
before, was the responsibility of the inmate. Matter
of Varela v. Coughlin, 610 N.Y.S.2d 103).
In this case, the fact that there was no way of
saying if the empty locker belonged to the Petitioner
prior to the floor cleaning, and the fact that all
inmates has access to the locker immediately before
it was placed in the Petitioner’s cube, were
sufficient to rebut the inference that the razor

Pro Se Vol. 17, No. 1; Winter 2007

belonged to him. (Compare this case with Warren
v. Goord, 824 N.Y.S.2d 496 [3d Dep’t 2006],
another case decided last Fall. In that case, three
weapons, made from state pens and sharpened
pieces of flat metal, were found in an inmate’s cell.
There, the court held that the fact that items were
retrieved from the inmate’s cell constituted
sufficient evidence that they belonged to him,
notwithstanding his denials.)
Substantial Evidence: Inmate Exonerated of
Stolen Property Charge
Garafolo v. Cunningham, 825 N.Y.S.2d 562
(3d Dep’t 2006)
The Petitioner worked as a facilitator for a
transitional services program. As part of his duties,
he designed charts to illustrate concepts taught in
the program. He took the charts back and forth with
him every day that he taught the program. In a
memo sent to the program supervisor, he announced
that he would be resigning from the program at the
end of the program cycle and he stated that he
would be taking his charts with him. In a reply
memo, the supervisor acknowledged the Petitioner’s
resignation but made no mention of the charts. The
next day, the Petitioner went to teach one of the
remaining classes in the program cycle. As he was
returning to his cell with his charts, he was stopped
by Correction Officers and eventually charged in a
Tier II proceeding with possessing stolen property.
A Hearing Officer upheld the charges.
The court reversed the charges. “Based on
petitioner’s unrefuted testimony,” the court held,
“the record lacks substantial evidence that petitioner
intended to possess stolen property…or that the
property was even stolen.”

q

Pro Se Vol. 17, No. 1: Winter 2007

Hearing Officer Bias: Fact that Hearing Officer
Was Defendant in the Petitioner’s Federal Case
Does Not Establish Bias
Matter of Burgess v. Goord, 832 N.Y.S.2d 312
(3d Dep’t 2006)
The Petitioner was charged with unauthorized
possession of a controlled substance and smuggling
after he allegedly mailed a quantity of heroin to the
Governor and the United States Department of
Justice Drug Enforcement Administration in an
alleged effort to expose a drug-selling operation
within the correctional facility involving Correction
Officers. Following a Tier III disciplinary hearing,
he was found guilty and, after his administrative
appeal was affirmed, filed an Article 78 proceeding.
The court found that the Petitioner’s
acknowledgment that he wrote the letters and
enclosed the heroin, together with the testimony of
the Correction Officer who investigated the incident
and authored the Misbehavior Report, provided
substantial evidence to support the determination of
guilt, regardless of his motivation in sending the
letters. The court rejected the Petitioner’s
contention that the Hearing Officer was precluded
from presiding at the disciplinary hearing because
he was named by the Petitioner as a Defendant in a
pending federal lawsuit. “The record establishes
that petitioner was afforded a fair and impartial
hearing and that the outcome of the hearing flowed
from the evidence presented, not from any alleged
bias on the part of the Hearing Officer.”
Practice pointer: Many corrections officials
serving as hearing officers at disciplinary hearings
have a strong institutional bias against inmates, as
virtually any inmate who has been the subject of a
disciplinary hearing can testify. Proving bias as a
legal matter, however, is difficult. New York courts
have held that it is not enough to show that the
Hearing Officer was rude or asked leading
questions or interrupted or intimidated the inmate

Page 13

or his witnesses. Instead, you must show that the
outcome of the hearing was the result of the
Hearing Officer’s bias. Put another way, you must
prove that the sole reason you were convicted was
the Hearing Officer’s bias--because the evidence
otherwise did not support the charges.
For this reason, courts generally treat Hearing
Officer bias claims as if they were substantial
evidence claims in disguise. They will only reverse
the hearing if the evidence was insufficient to
support the charge. They will not reverse a hearing
merely because a Hearing Officer was rude, or even
unprofessional, if the evidence otherwise supports
the charge, and the Hearing Officer committed no
significant procedural errors.
Drug Testing; False Positives; Adequacy of
Record: Failure to Preserve Testimony of Drug
Test Manufacturer Found Insufficient Basis for
Invalidating Hearing
Ruiz v. Goord, 825 N.Y.S.2d 811 (3d Dep’t 2006)
An inmate’s assertion that the medications that
he was taking could have caused a false positive in
a urinalysis test were rebutted by testimony from a
test manufacturer’s representative. On review, the
court noted that the test representative’s answers
could not be heard on the tape of the disciplinary
hearing. The court, found, however, that this did not
prevent a meaningful review of the hearing. The
substance of the test representative’s answers could
be gleaned from the Hearing Officer’s replies. The
Petitioner’s contention that the test representative’s
answers did not exclude the possibility that a mix of
his medications could result in false positive, the
court found, was purely speculative. The
Misbehavior Report, the test results, and the
testimony of the test representative that none of the
Petitioner’s medications would cause false positive
for cocaine provided “substantial evidence” of the
Petitioner’s guilt.

Page 14

Notice: Misbehavior Report Not Required to
Specify Incident Date if It Otherwise Adequately
Apprises Inmate of Charged Conduct
Blake v. Goord, 825 N.Y.S.2d 326 (3d Dep’t 2006)
Profitt v. Goord, 824 N.Y.S.2d 493 (3d Dep’t 2006)
The right to adequate notice of the charges is an
important part of the due process protections
afforded inmates in a prison disciplinary hearing. It
allows the charged inmate to “[know] what he is
accused of doing so that he can prepare a defense to
those charges and not be made to explain away
vague or conclusory charges set out in a
misbehavior report.” Taylor v. Rodriguez, 238 F.3d
at 192-93 (2d Cir. 2002).
To that end, a Misbehavior Report must set out
“at least some ‘specific facts’ underlying the
accusation.” Id.
A Misbehavior Report need not, however, set
out all the facts. The Constitution does not require
Misbehavior Reports “that painstakingly detail all
facts relevant to the date, place, and manner of
charged inmate misconduct.” They need only
contain “sufficient factual specificity to permit a
reasonable person to understand what conduct is at
issue so that he may identify relevant evidence and
present a defense.”
Discrepancies in a Misbehavior Report will
generally be excused where it contains sufficient
details to provide sufficient adequate notice of the
conduct at issue. For example, in Quinones v.
Ricks, 732 N.Y.S.2d 275, 276 (2d Dep’t 2001), the
court held that the Report’s failure to include the
specific date on which the misbehavior allegedly
occurred was excused, where the report otherwise
provided sufficient details to permit the inmate to
fashion a defense. Other cases have held that where
a Misbehavior Report is the result of a lengthy
investigation of continuing conduct, it is sufficient
for the report to note the date on which the
investigation was completed, rather than the date of
the charged acts, so long as it otherwise provides
reasonable notice of what was at issue. See, for

Pro Se Vol. 17, No. 1; Winter 2007

example, Jackson v. Smith, 785 N.Y.S.2d 603
(3d Dep’t 2004); Carini v. Mann, 654 N.Y.S.2d 484
(3d Dep’t 1997).
Two cases decided this past fall follow the lead
of Jackson and Carini.
In Blake v. Goord, an inmate was charged with
extortion, solicitation, and conspiracy to introduce
narcotics into the facility. In the space on the
Misbehavior Report reserved for a statement of the
incident date, the charging officer had written the
date on which he finished his investigation, rather
than the date on which any misbehavior allegedly
occurred. The court, citing Jackson and Carini,
rejected the Petitioner’s claim that this was
improper, “given that petitioner's misconduct was a
continuing violation.”
In Profitt v. Goord, the Petitioner was charged
with possessing a cell phone and charging other
inmates for permission to use it. The court again
found that it was appropriate for the Misbehavior
Report to use the date the investigation was
completed as the incident date, because the Report
“otherwise adequately described the nature of the
charged misconduct to provide petitioner with an
opportunity to prepare a defense.”
Res Judicata: DOCS Not Prohibited From Filing
“Penal Law Offense” Charge Against Inmate
After Criminal Conviction, Notwithstanding
Previous Discipline for Same Incident
Matter of Josey v. Goord, 826 N.Y.S.2d 479
(3d Dep’t 2006)
Res judicata is a Latin term which means “the
matter has already been decided.” It is also a legal
doctrine which prohibits the re-litigation of the
same case twice. It is intended to protect principles
of basic fairness: Once a matter has been decided
the first time, a party should not expect to have to
re-litigate the same matter again.
Res judicata is not absolute, however.
Exceptions exist in cases in which one party claims
to have new evidence that was not available at the

Pro Se Vol. 17, No. 1: Winter 2007

time the initial determination was made and which
would change the outcome of the result, or in which
the law changes in such a way that, if the matter
were re-litigated under the new law, the results
would be different.
In this case, the Petitioner was charged with
various disciplinary charges, including assault and
violent conduct, after stabbing another inmate,
ultimately causing his death. The Hearing Officer
sentenced him to 24 months in SHU. DOCS then
charged the Petitioner again, this time making it
clear in the Misbehavior Report that the inmate had
caused the victim’s death. He was found guilty a
second time and this time sentenced to 120 months
in SHU, modified to 60 months. This hearing was
administratively reversed, however, on the grounds
of res judicata: The same incident had been
considered during the previous hearing and no
newly-acquired evidence had been introduced.
The Petitioner was subsequently convicted of
criminal charges related to the incident. DOCS then
charged him with violating the disciplinary rule
prohibiting penal law violations. That rule, 7
N.Y.C.R.R. § 270[A], states:
Any Penal Law offense may be referred to
law enforcement agencies for prosecution
through the courts. In addition, departmental
sanctions may be imposed based upon a
criminal conviction.
The Petitioner was again found guilty. This
time, he was sentenced to 72 months in SHU.
He appealed, arguing that the third
administrative proceeding, like the second, was
barred by res judicata.
The court disagreed. It noted that a Penal Law
offense charge could not have been lodged against
the Petitioner in the earlier proceedings because the
charge could not be sustained without the criminal
conviction. Thus, in this case, the court held, the
criminal conviction constituted “new evidence,”

Page 15

putting the case within the exception to the res
judicata doctrine. “[T]he determination of guilt
arising out of the third disciplinary hearing cannot
be said to have been barred by res judicata as it was
premised upon new evidence, namely, petitioner’s
criminal conviction.” As a result, the Petitioner’s
disciplinary hearing was affirmed.
The inmate in this case was represented by
Prisoners’ Legal Services of New York. PLS has
asked the Court of Appeals for leave to appeal.

Timeliness: Fourteen Day Rule Not Mandatory
Matter of Bilbrew v. Goord, 822 N.Y.S.2d 339
(3d Dep’t 2006)
The Petitioner was charged with disciplinary
violations after allegedly shouting obscenities and
swinging a food transport cart at the facility’s head
cook because he was angry at the cook for removing
his chess set and workout gloves from the kitchen
area. After being found guilty of some of the
charges, he appealed, arguing that the hearing was
not completed in a timely fashion because it had not
been completed within 14 days of the writing of the
Misbehavior Report and an extension request was
not filed until the 15th day. The court, however,
rejected his claim, noting: “[T]he time limits set
forth in 7 N.Y.C.R.R. 251-5.1 are directory, not
mandatory, and where the record fails to disclose
any prejudice as a result of the delay it is not
necessary to reverse the hearing.”
Practice pointer: Seven N.Y.C.R.R. 251 - 5.1(b)
states that “a disciplinary hearing or

Page 16

superintendent’s hearing must be completed within
14 days following the writing of the misbehavior
report unless otherwise authorized by the
commissioner or his designee.” The fourteen days
do not count the day on which the misbehavior
report was written. Harris v. Goord, 702 N.Y.S.2d
6 7 6
( 3 d
D e p ’ t
2 0 0 0 ) .
In the late 1980s and early 1990s, case law held
that the “fourteen day rule” was mandatory, not
discretionary, and any violation of it would result in
an automatic reversal of a disciplinary hearing.
See, for example, Hicks v. Scully, 552 N.Y.S.2d 684
(2d Dep’t 1990), (where a second extension was
obtained after the first had expired, the court
required reversal of the hearing); Matter of
Wysinger v. Scully, 540 N.Y.S.2d 744 (2d Dep’t
1989); Matter of Brito v. Sullivan, 530 N.Y.S.2d 28
(2d Dep’t 1980); and Matter of Anderson v.
Coughlin, 600 N.Y.S.2d 539 (4th Dep’t 1993).
In recent years, courts have backed away from
that rule. As this case suggests, they now routinely
hold that the fourteen day rule is merely
“directory,” not mandatory. A violation of the rule
will not result in automatic reversal of the
disciplinary hearing unless the petitioner can show
that he was “prejudiced” by the violation.
“Prejudice” might occur if, for instance, the delay
results in the inability to call a crucial witness
because the witness was paroled, died, or etc.
Witnesses: Hearing Officer Improperly Prevented
Inmate From Presenting Witnesses and Evidence
Caldwell v. Goord, 827 N.Y.S.2d 709 (3d Dep’t
2006)
The Petitioner was alleged to have used other
inmates’ telephone PIN numbers to make phone
calls during which he solicited drugs. At his
disciplinary hearing, he requested as witnesses the
inmates whose PIN numbers he was alleged to have
used to show that he did not make the phone calls in

Pro Se Vol. 17, No. 1; Winter 2007

question. He also requested documentary evidence
showing the location of the phone from which each
call was made, in order to show that he did not have
access to those areas of the prison at the times the
calls were placed, the existence of which was
established by the testimony of an investigator for
the Inspector General’s office. The Hearing Officer
denied these requests.
The Hearing Officer also summarily denied the
Petitioner’s request to call as a witness the woman
who was caught smuggling drugs into the facility
and who gave a written statement to investigators
implicating the Petitioner in the conspiracy. The
Petitioner, the court noted, could have used her
testimony to “attack her credibility and question her
about her written statement which was part of the
hearing evidence.”
The various violations of the Petitioner’s right
to call witnesses and present evidence, the court
found, required reversal of the hearing. With respect
to the Hearing Officer’s denial of the Petitioner’s
visitor as a witness, the court held: “In addition to
violating regulations by failing to give a written
statement of the reasons for denial of this witness
(See 7 N.Y.C.R.R. 253.5[a]), the hearing officer’s
outright denial of petitioner's request for this
material witness without a stated good-faith basis
constitutes a constitutional violation.”
Parole
Hearing Reversed Where Board Failed to
Consider Sentencing Minutes
Standley v. New York State Div. of Parole, 825
N.Y.S.2d 568 (3d Dep’t 2006)
One of the several factors that the Parole Board
is required to consider when deciding whether to
grant or deny parole are any recommendations by
the sentencing court. See Executive Law § 259i(1)(a). Such recommendations, if they exist, are

Pro Se Vol. 17, No. 1: Winter 2007

typically contained in the “sentencing minutes,” i.e.,
the stenographic transcript of everything that was
said at the sentencing hearing.
Criminal Procedure Law § 380.70 requires
sentencing courts to deliver “a certified copy of
the…minutes of the sentencing proceeding…to the
person in charge of the institution to which the
defendant has been delivered.” As one court
recently noted, the purpose of this rule is
“presumably [that the minutes] be placed in the
inmate’s permanent file so as to be available for
[among other things] parole hearings.” McLaurin v.
New York State Bd. of Parole, 812 N.Y.S.2d 122
(2d Dep’t 2006).
Despite this rule, DOCS frequently does not
have a copy of inmates’ sentencing minutes in their
files and, as a result, the Parole Board often does
not consider them.
In the past several years, courts have begun to
reverse Parole Board decisions denying parole
where the record revealed that the Board had failed
to consider the sentencing minutes.
In Edwards v. Travis, 758 N.Y.S.2d 121
(2d Dep’t 2003), for example, the court reversed a
Parole Board decision denying parole where the
sentencing minutes revealed that the sentencing
court did not intend that the Petitioner serve more
than the minimum term, and the Board conceded
that it had not considered the minutes.
In McLaurin, id., the court found that where the
sentencing court had made statements at sentencing
that amounted to a recommendation, “the Board
was required to obtain and consider those minutes
prior to making its determination.” Its failure to do
so required reversal of the hearing.
In Standley, the court considered a case in
which the Petitioner’s request for parole had been
denied three times. Each time, the Board failed to
consider the Petitioner’s sentencing minutes. The
court held that the “the Board’s [repeated] failure to
comply with the provisions of Executive Law §
259-i which mandate consideration of the
sentencing minutes and recommendations of the
sentencing court in reviewing applications for

Page 17

parole release” required that the third hearing be
reversed as well. It ordered the Board to obtain the
Petitioner’s sentencing minutes within 30 days and
conduct a new parole hearing within 45 days.
Practice pointer: The Parole Board has
complained that it is the sentencing court’s
responsibility to forward the sentencing minutes to
DOCS. If the sentencing court fails to do so, they
argue, there is nothing it can do to remedy the
situation.
In both Edwards and McLaurin, Id., it appears
that the sentencing minutes were readily available
and the Board simply neglected to review them. In
addition, in both those cases, the minutes revealed
that the sentencing courts had made
recommendations which were relevant to the
Board’s decision-making.
Will courts be equally willing to reverse parole
decisions if Parole argues that the sentencing
minutes are simply unobtainable, or where there is
nothing in the record to suggest that the minutes
contain recommendations from the sentencing
court?
The decision in Standley suggests that they
might. Nothing in that decision suggests that either
the sentencing minutes were easily available to the
Board or that they contained relevant
recommendations. The court simply ordered the
Board to obtain them.
Sentence Computation
Inmate Not Entitled to “Parole” Jail Time for
Time Spent in Custody on New Charge
Blake v. Travis, 824 N.Y.S.2d 573 (3d Dep’t 2006)
The Petitioner, serving a term of six to 18 years
in prison, was paroled in 2000, but declared
delinquent as of October 24, 2001, the date he was
arrested for a new crime. On his delinquency date,
he owed seven years, two months and 10 days to his
prior sentence. On January 29, 2004, he was
sentenced to a new term of 2¼ to 4½ years,

Page 18

consecutive to his prior sentence. He was returned
to DOCS on February 6, 2004.
DOCS credited his new sentence with 836 days
of jail time, covering the period between
October 24, 2001--the date of his arrest on the new
charges--and February 6, 2004--the date he was
received by DOCS.
The Petitioner argued that the 836 days should
also have been credited to his prior sentence, as
parole jail time. The court disagreed. It held:
“Petitioner was not entitled to parole jail time credit
for the time period after his prior sentences were
interrupted, for to do so would, in effect, be to grant
him double credit for such time. As petitioner's
release dates were correctly calculated, the petition
was properly dismissed.”
Practice pointer: Inmates are often confused
about the difference between “jail time” and
“parole jail time.”
The former is time served in a local facility on
a new criminal charge. It is credited to any sentence
which arises from the new charge. See Penal Law §
70.30(3).
The latter is time served in a local facility based
on a parole detainer or warrant. It is credited to
time owed on the sentence which was interrupted by
the parole violation. See Penal Law § 70.40(3).
The confusion arises where, as here, a parolee
is arrested on a new charge, which results in a new
sentence, while at the same time, his parole is
revoked, interrupting the prior sentence. Is the time
served in the local facility “jail time,” to be
credited to the new sentence? or “parole jail time,”
to be credited to the old sentence? or both?
According to Penal Law § 70.40(3), priority
goes to the new sentence. It does this by stating that
if an arrest which has resulted in a parole detainer
also results in a new sentence, only that portion of
the jail time which exceeds the length of the new
sentence can be considered “parole jail time”
(credited to the prior sentence). Otherwise, it is, by
default, “jail time” (credited to the new sentence).
This is to the inmates’ advantage. A new
sentence will almost always be consecutive to time

Pro Se Vol. 17, No. 1; Winter 2007

owed on a prior sentence. Thus, the time owed will
be added to the maximum term of the new sentence,
creating an “aggregate” maximum term. If the time
served in the local facility were considered “parole
jail time,” it would only be applied to the old
sentence. It would therefore only reduce the
maximum term of the aggregate sentence. By
crediting the time to the new sentence, both the
maximum and minimum terms of the new sentence
are reduced.
Courts have repeatedly held, however, as does
this court, that the time served in a local facility
under these circumstances cannot be credited to
both sentences.
Inmate, Accidentally Held 3½ Years Beyond
Parole Eligibility Date, Has No Remedy After
Being Returned to DOCS as a Parole Violator
Fletcher v. Goord, 826 N.Y.S.2d 807 (3d Dep’t
2006)
The Petitioner was sentenced to 15 years to life
as a persistent violent felon in 1990. He was paroled
at his first Board appearance in March 2002, but
returned to prison on a parole violation in 2003.
Upon returning, he learned that DOCS had
miscalculated his parole eligibility date by 3½
years: It had given him a March 2002, P.E. date,
rather than the October 1998 parole eligibility (PE)
date, which, had his sentence been properly
computed, he should have received. He sued DOCS.
The court agreed that DOCS had miscalculated his
earliest parole eligibility date and that the
miscalculation had resulted in the Petitioner not
being considered for parole until 3½ years later than
he should have been. However, the court held, since
DOCS had since corrected the error, and since the
Petitioner had already served his minimum term,
been released, and returned to prison on a parole
revocation, there was no relief it could grant him:
the case was “moot.”
Practice pointer: A matter is considered
“moot” if further legal proceedings with regard to

Pro Se Vol. 17, No. 1: Winter 2007

it can have no effect, or events have “placed it
beyond the reach of the law”--meaning, the matter
has been deprived of any practical significance and
has been rendered purely academic. Here, the
matter was moot because the Petitioner had already
served the miscalculated minimum term and been
returned to DOCS on a parole violation. The error
thus no longer affected him.

Pro Se Practice
LITIGATING IN THE COURT OF CLAIMS
Bad things often happen in prison. Sometimes,
there is nothing you can do about them. Sometimes,
however, you have a remedy, either through
administrative channels or through the courts. This
article takes a look at a one legal remedy: seeking
redress in the Court of Claims. It addresses the
kinds of cases you can bring in the Court of Claims
and the differences between the Court of Claims
and other courts, especially the federal courts. It
then takes a detailed look at several recent Court of
Claims cases to illustrate some of the kinds of cases
you may bring there, what you must prove in order
to prevail, and some of the substantive issues that
may arise.
This article does not explain procedure in the
Court of Claims. For more information on how to
bring an action in the Court of Claims, request
Prisoners Legal Services’ “Court of Claims” form
memo. One procedural note should be mentioned up
front, however. That is, that actions in the Court of
Claims must be initiated within a short period of
time--typically, within 90 days of the incident about
which you want to sue. So if you have been injured
by some wrongful action of the State and think you
might want to sue in the Court of Claims, remember
that you must act promptly.

Page 19

What is the Court of Claims?
The Court of Claims is a New York State court,
the sole purpose of which is to hear claims brought
against the State of New York. It is the only state
court available if you are seeking money damages
against the State of New York or certain state
agencies (such as DOCS). You cannot sue the State
of New York for money damages in any other state
court, nor can you sue any officer or employee of
DOCS for money damages in any other state court.
The Court of Claims does not have jurisdiction
over claims brought against individuals. Claims
based on alleged improper conduct of the
Department of Correctional Services or its
employees are considered claims against the State,
and the named defendant should be “The State of
New York.”
What Kinds of Claims Can Be Heard in the Court
of Claims?
The Court of Claims has jurisdiction over claims
in which you allege that you were injured as a result
of the negligent or intentional wrongdoing of state
employees. Such claims are commonly called
“torts.” They include, but are not limited to, claims
of personal injury as a result of unsafe conditions in
prisons, assault by corrections staff, a failure to
protect you from assault by other inmates, and
medical negligence and malpractice. The Court also
has jurisdiction over claims that your property was
negligently or intentionally lost or damaged by state
employees.
What Kinds of Claims Cannot Be Heard in the
Court of Claims?
The Court of Claims is a court of limited
jurisdiction. It can only hear claims that your rights
under state law were violated by state action. It

Page 20

cannot generally hear claims that your rights under
federal law, such as the federal constitution, were
violated. Nor can it hear claims that you were
injured by the actions of county, town, city, or
village governments, agencies, or employees. (For
example, the Court of Claims has no jurisdiction
over claims that arise at city or county correctional
facilities, such as Rikers Island or any county jail.)
What Relief Is Available In the Court of Claims?
The only relief available from the Court of
Claims is money damages to compensate you for a
loss or injury that you suffered as a result of
wrongful conduct. For example, if you have a case
in which a DOCS’ employee has lost your property,
the Court will award you the value of the property.
If you have a case where you have suffered
permanent injury, the Court will attempt to
compensate you based on a determination of how
the injury will affect your ability to earn a living in
the future and enjoy life. The Court can also award
damages for temporary or permanent pain and
suffering.
What Relief Is Not Available in the Court of
Claims?
The Court of Claims cannot award punitive
damages, attorneys’ fees, or injunctive relief.
(Punitive damages are awarded to punish
wrongdoers for their conduct and discourage them
from engaging in similar conduct in the future. An
injunction is an order requiring the defendant to
take or stop taking a particular action. Attorneys’
fees are the fees an attorney might charge to
represent you.) So, for example, if you have a case
in which you want to sue to force DOCS to take a
specific action (e.g., provide certain medical
treatment, admit you into CASAT, recompute your
sentence, or reverse your disciplinary hearing), you
cannot obtain relief in the Court of Claims. You will
have to seek redress in either the State Supreme

Pro Se Vol. 17, No. 1; Winter 2007

Court (typically, via an Article 78 proceeding) or in
federal court.
What Are Some Differences Between the Court of
Claims and Federal Court?
Federal courts can only hear claims arising
under federal law, such as the U.S. Constitution.
There is often some overlap between “tort” claims,
which could be litigated in the Court of Claims, and
constitutional claims, which could be litigated in
federal court. For example, a claim that you were
assaulted by correction officers could be brought in
the Court of Claims (as the “tort” of “assault and
battery”). It could also be brought in federal court
(as a claim that the officers’ conduct violated your
constitutional right to be free of “cruel and unusual
punishment.”)
Meeting the standards of a federal constitutional
claim, however, is frequently more difficult than
meeting the standards of a similar claim in the Court
of Claims.
For example, in order to prevail in a medical
claim in the Court of Claims, you would need to
prove that the care you received was either
negligent or constituted medical malpractice (i.e.,
that it constituted a significant departure from
accepted practice). To prevail on the same facts in
federal court, you would have to show that the
defendants were “deliberately indifferent to a
serious medical need” and their care thus
constituted “cruel and unusual punishment.”
Moreover, in many other situations, there is no
overlap between state and federal claims. Federal
courts, for example, have no jurisdiction over a
claim that is based on pure negligence (such as, for
instance, a claim that you were injured because
DOCS’ officials negligently failed to maintain the
basketball court, or negligently lost your property).
This is because there is no constitutional protection
against pure negligence.
There are also significant procedural differences
between the Court of Claims and federal court. Each
has their pluses and minuses.

Pro Se Vol. 17, No. 1: Winter 2007

Page 21

Some procedural advantages of federal court
over the Court of Claims include: a longer Statute
of Limitations (three years in most cases, as
opposed to 90 days in the Court of Claims); jury
trials (in the Court of Claims, all claims are decided
by judges); and the availability of punitive damages,
injunctive relief, and attorneys’ fees.
Some disadvantages of federal court over the
Court of Claims include: procedural rules, such as
the PLRA, designed to make inmate litigation more
difficult [among other things, the PLRA requires
inmates to exhaust available administrative
remedies prior to filing in federal court; with the
exception of personal property claims, the Court of
Claims has no exhaustion requirement]; and a
higher standard of proof for most kinds of claims.
Some Recent Cases
Below we present a detailed discussion of six
recent cases decided in the Court of Claims. The
cases cover three of the most common types of
cases litigated in the Court of Claims: negligence,
medical malpractice, and inmate-on-inmate assaults.
They should give you an idea of the kinds of cases
that succeed in the Court of Claims, the kinds of
cases that fail, and what the difference between
them is.

…

……

……………

…

Negligence: Unsuccessful Case
Levin v. State of New York, 820 N.Y.S.2d 626
(2d Dep’t 2006)
The Claimant fell out of his upper bunk at
Arthur Kill Correctional Facility and fractured his
finger. Medical staff ordered that he be moved to a
lower bunk. The order was not implemented. The
Claimant fell out of his upper bunk again. This time
he suffered serious injuries. He sued, alleging that
the State was negligent in failing to transfer him to
a lower bunk immediately after he had fallen off a

top bunk.
At trial, the Claimant claimed that he fell from
his bunk because he was suffering from a seizure.
There is a written policy at Arthur Kill that inmates
who suffer from seizures be assigned to bottom
bunks. The physician who treated the Claimant’s
finger, however, testified that he did not believe that
the Claimant suffered from seizures. He stated that
he only ordered the transfer to the bottom bunk
because he believed the Claimant would have
difficulty reaching the top bunk with a fractured
finger. He testified that, in his opinion, it was not
necessary that the Claimant be “immediately”
transferred to a bottom bunk.
Based on this testimony, the majority of the
court found the Claimant’s case unpersuasive. It
held that the lower court had “properly determined
that it was not reasonably foreseeable that the
Claimant would again fall out of an upper bunk so
soon after his first accident, or that he would fall as
a consequence of a seizure.” Therefore, the court
held, the failure of the State to immediately transfer
the Claimant to a lower bunk did not breach any
duty that the state owed to the Claimant.
A dissenting judge noted that the Claimant’s
medical records specifically indicated that, at the
time he fell out of the top bunk, he was taking an
anti-seizure medication and had reported to medical
staff that he had had a seizure. Further, the dissent
noted, although the treating physician had testified
at trial that the bottom bunk order was based solely
on his concern about the Claimant being able to
reach the top bunk with a fractured finger, the
Claimant’s medical records specifically indicated
that he had claimed to have injured his finger “after
having a seizure.” Moreover, it was another doctor
who had issued the lower bunk order.
Consequently, the dissent argued, the court should
not have credited the treating physician’s contention
that the Claimant’s finger was the sole basis for the
lower bunk order or that it was not urgent.
In the dissent’s view, the duty of the employees
at Arthur Kill to implement the lower bunk order
was a ministerial duty. That is, it involved no

Page 22

discretion. An order concerning the Claimant’s care
had been issued by medical staff and corrections
staff lacked the discretion to either refuse or delay
its implementation. “There is no evidence that
Arthur Kill employees charged with the ministerial
duty of implementing the order were given any
information as to why the order was issued and/or
any discretion to delay its implementation,” wrote
the dissent. Further, “[t]he existence of the policy to
assign lower bunks to inmates suffering from
seizures is proof that the defendant actually foresaw
the risk that an accident would occur in the manner
in which it occurred.” Yet, the record showed, they
failed to implement the order. It was thus
reasonably foreseeable, according to the dissent,
that the Claimant would suffer another seizure and
fall off his bunk.
Practice pointer: The scope of the State’s duty
to its inmates is to take adequate measures to
protect them from injuries that are “reasonably
foreseeable.” Whether or not the injury that you
suffered was “reasonably foreseeable” to DOCS’
officials is often the focal point of a negligence
case. Here, the majority found that it was not
reasonably foreseeable that the Claimant would fall
out of his bunk a second time, but its reasoning was
severely criticized by the dissent.

Negligence: Successful Case
Mance v. State, Claim # 106998 (Court of Claims,
October 2, 2006)
The Claimant alleged that he suffered injuries to
his left hand when a Correction Officer negligently
closed the door to his cell on his hand. He testified
that on February 18, 2001, a Sunday, he was about
to leave his cell for the facility media center, where
he was to assist the Chaplin in setting up the church
for services. He heard his cell door “click,” which
indicated to him that it had been unlocked from the
“lock box,” which was located at the end of the row
of cells on his company. As he started to leave, he

Pro Se Vol. 17, No. 1; Winter 2007

turned around to gather some personal effects,
including his bible. He then heard a noise identical
to that which occurred when all 43 cells along the
entire row of his company were being closed
mechanically. He attempted to exit his cell, but as
he did so he caught his fingers in the door as it was
being closed. He screamed for assistance, and was
taken to the prison infirmary for medical treatment
shortly thereafter by a Correction Officer. He
argued that by closing his cell from a remote
location, shortly after releasing his cell door and
without regard to his whereabouts, the State was
negligent and therefore responsible for his injuries.
The Correction Officer on duty at the time
testified that he had unlocked the Claimant’s cell
from the “lock box”on the morning in question
because the Claimant had been approved for a
call-out to attend religious services. He waited for
several minutes but the Claimant did not exit his
cell. He then proceeded down the corridor to the
cell and told the Claimant that he was going to
secure the company, meaning that all cells on the
entire company were to be locked. He then
manually closed and locked the Claimant’s cell.
When he closed the door, the Claimant was several
feet away, and at no time did his hand become
caught in the door. Furthermore, when he closed the
door, he claimed that the Claimant made threats
against him, and as a result, he issued a
Misbehavior Report.
Thus, the testimony of the Claimant and the
Correction Officer were diametrically opposed.
Another inmate was called as a witness on
behalf of the Claimant. The inmate testified that on
the date of this incident, he was assigned to the cell
immediately adjacent to the Claimant’s cell. He
testified that he did not observe the Claimant’s cell
door being closed, but he was alerted by the
Claimant’s screams. He testified that he then
utilized his mirror and saw that the Claimant’s hand
was caught in the cell door. He further testified that
there were no Correction Officers in the hallway at
this time. Finally, he testified that after a short time,
the Claimant was able to remove his hand from the

Pro Se Vol. 17, No. 1: Winter 2007

gate, and that Correction Officers came to the
Claimant’s assistance and escorted him to the
infirmary.
The Claimant’s medical record was also offered
into evidence. It contained an entry confirming that
the Claimant was treated in the infirmary at 8:50
a.m. on the date of the incident, as well as a
statement from the Claimant that his fingers had
been caught in his cell door. The nurse’s note on
that record contained an observation that the
Claimant’s fingers were red, but there was no
indication of bleeding, broken skin, or swelling. A
“Report of Inmate Injury,” containing a similar
statement from the Claimant, was also received into
evidence (See Exhibit 1).
After weighing the conflicting evidence, the
court found in favor of the Claimant. His testimony
was supported by the testimony of the other inmate
and by the Claimant’s medical record. Although the
Correction Officer on duty denied that the incident
occurred, he did not successfully discredit the
Claimant’s testimony, nor did he provide any
explanation as to why the Claimant might attempt to
fabricate the claim. Thus, the court found, the
preponderance of the evidence supported the
Claimant’s claim.
Practice pointer: In the operation of its prisons,
the State is held to the same standard of care as a
private landowner. It must act as a reasonable
person in maintaining its property in a reasonably
safe condition in view of all the circumstances,
including the likelihood of injury to others, the
seriousness of the injury, and the burden of
avoiding the risk. Miller v. State of New York, 62
NY2d 506. In this case, after resolving the factual
conflict between the two principal witnesses, the
Court found that the State’s action in closing the
door without notifying the inmate was negligent.
Medical Malpractice: Unsuccessful Case
Bennett v. State, 820 N.Y.S.2d 653 (3d Dep’t 2006)
The Claimant entered DOCS with advanced
periodontal disease. A DOCS dentist extracted three

Page 23

teeth, performed scaling and toot planing of the
Claimant’s mouth, prescribed antibiotics, and
followed up with regular deep cleaning. The DOCS
dentist never referred the Claimant to a periodontist.
Six years after his entry into DOCS, the Claimant
hired his own specialist. The specialist
recommended the extraction of 11 more teeth. The
Claimant sued, claiming that the delay in treatment
resulted in the loss of 11 teeth and thus constituted
medical malpractice.
To succeed in a malpractice claim, the Claimant
is required to prove that DOCS’s medical care
deviated from the accepted standard of care and that
the deviation was the proximate cause of the
Claimant’s injuries. In order to meet this standard,
the Court of Claims requires that the Claimants
alleging medical malpractice provide an expert to
testify to the correct standard of care.
The Claimant had an expert, a dentist. The
dentist testified that DOCS' failure to chart the
Claimant's teeth made it difficult to track his
progress and determine the appropriate course of
treatment. He also faulted DOCS for not outlining
a treatment plan or referring the Claimant to a
periodontist. In addition, he stated that the delay in
the Claimant’s treatment caused him to lose more
teeth than if he had been promptly treated.
DOCS’ dentist testified that she did not refer the
Claimant to a periodontist because she was capable
of treating him herself. She testified that she did not
chart the teeth because it was useless to chart
hopeless teeth. She also testified that she treated the
Claimant conservatively because he wanted to keep
his teeth and would not accept that many of his
teeth needed to be extracted.
An expert periodontist also testified on behalf of
DOCS. DOCS’ expert testified that according to the
Claimant's x-rays and records, he had extreme bone
loss in his jaw and several questionable teeth that
needed extraction at the time he entered DOCS. The
expert further testified that: charting helps measure
progress in diseased teeth but does not treat
periodontal disease; teeth with a poor or hopeless
prognosis should be extracted; DOCS’ treatment

Page 24

was appropriate and met the standard of care; and
that the proximate cause of the Claimant's tooth loss
was his advanced periodontal disease, not the
treatment he had received from DOCS.
The Court of Claims agreed. It concluded that
any alleged deviation from the accepted standard of
care was not the cause the Claimant's injuries. The
advanced state of his disease had already rendered
the Claimant's teeth hopelessly lost at the time he
entered DOCS.
Practice Pointer: The State has a duty to
provide reasonable and adequate medical and
dental care to the inmates of its correctional
facilities. A claim in the Court of Claims that the
state has failed to meet that obligation may be
based on a theory of medical negligence, medical
malpractice, or both.
In a medical negligence case, the negligent acts
should be readily determinable based on common
knowledge, so no expert is needed. Some examples
of medical negligence include: scalding a patient
with a hot water bottle (Phillips v. Buffalo Gen.
Hosp., 239 N.Y. 188); leaving an electric light bulb
under the sheets (Dillon v. Rockaway Beach Hosp.,
284 N.Y. 176); and leaving a postoperative patient
unattended in a bathroom (Coursen v. New York
Hospital-Cornell Med. Center, 114 A.D.2d 254,
256). Other typical examples include instances in
which the State fails to provide a prescribed
medication, or provides the wrong medication.
In a medical malpractice case, the negligence
involved cannot be determined by common
knowledge. An expert is needed to show that your
treatment constituted a departure from the accepted
standard of practice--and that the departure was
the proximate cause of your injury. In some cases,
your expert may be countered by the State’s expert-and the Court could still decide against you (as
happened in the case Bennett above). Without any
expert, however, you have no malpractice case at
all.

Pro Se Vol. 17, No. 1; Winter 2007

The following case is a good example of the
successful use of an expert in a medical malpractice
case.
Medical Malpractice: Successful Case
Long v. State of New York, Claim # 107435 (Court
of Claims, November 14, 2006)
In May 2002, while the Claimant was
incarcerated at Sing Sing, he was hit on the left side
of his face by a softball and sustained “comminuted
depressed fractures of his left zygomatic arch” (i.e.,
the cheek bone). He alleged that the State’s delay in
surgically addressing his fractures until more than
six months post-injury necessitated a more
complicated surgery, caused him increased pain and
suffering, and resulted in permanent harm. The
Claimant was seen by a specialist at St. Agnes
hospital the day after the incident. The specialist
recommended follow up with a particular oral
surgeon for possible surgery. Sing Sing apparently
ignored that recommendation because the named
oral surgeon was not on contract with Sing Sing.
The Claimant was instead scheduled to see Sing
Sing’s oral surgeon on June 19th. The oral surgeon
recommended further follow up by a specialist at
the Westchester Medical Center. That did not occur
until August. The specialist requested a CAT scan,
which was done in September. He then
recommended surgery, however, which did not
occur until December.
The Claimant estimated that it took a year from
the time of the surgery for his jaw to feel
comfortable and that, even today, his jaw locks
when he opens his mouth too wide. He avoids
apples and tries to chew on his right side when he
eats meat, toast, or hard fruit. He sometimes has
slurred speech and spits when he speaks. Also, he
still experiences sensitivity under his eye and
pressure on his cheeks from sunglasses.

Pro Se Vol. 17, No. 1: Winter 2007

An oral surgeon offered expert testimony on
behalf of the Claimant. He explained that the
treatment indicated for the Claimant’s fracture was
open reduction, as soon as possible, which meant no
later than ten to 14 days post-injury. He further
explained that, ideally, surgery should be done
within 24 to 48 hours because fibrous tissue, which
could form bone, develops, thereby impairing the
function of the lower jaw. He testified that, within
two weeks post-injury, the Claimant could have had
an extra-oral (outside-the-mouth) operation known
as a Gillies approach. This 20- to 30-minute
procedure consists of a small incision on the scalp
and a second incision in the “temporal fascia.” An
instrument is then inserted through the incisions to
pull the cheek bone up by popping it back into
place. Within a few days of this type of surgery, the
patient is fully functioning and eating a normal diet.
The expert explained that due to the delay in
treating the Claimant, a Gillies approach was not
available and, therefore, the Claimant had to endure
two more extensive procedures. While he conceded
that the surgery performed on the Claimant in
December was proper, he noted that the operation
took two hours, which is three to four times longer
than a simple Gillies approach. This caused more
trauma to the patient. He maintained that when the
simple Gillies approach is performed, the patient
achieves a 100 percent result with no sequella from
surgery. He opined that if the Claimant had been
examined by an oral surgeon within 24 hours of the
fracture, surgery could have and should have been
performed at that time.
The expert explained that with non-inmate
patients who appear in an emergency room with
such an injury, an oral surgeon or other specialist
would be called in to evaluate the patient and the
patient would be admitted immediately. Surgery
would be scheduled within a day or two. He was of
the opinion that a deviation from reasonable
medical care had occurred after the Claimant was
returned to Sing Sing. In his view, the facility was
aware of the Claimant’s fracture and malfunction
and somebody should have addressed the

Page 25

Claimant’s need for medical treatment. He noted
that on June 19, 2002, when the Claimant was
examined by an oral surgeon at the Sing Sing dental
clinic, it was already beyond the time when the
simple surgery could have been performed on the
Claimant. The expert testified that there were
“multiple people to blame.”
I mean, he was referred back to the prison,
the correctional institute, where they were
obviously aware that he had fractures, and
he was obviously in pain. He obviously had
a dysfunction. He also had medical issues
prior to all this, and it would be my
assumption that somebody in the
Department of Corrections Medical
Department or Dental Department should
have seen to it that this patient got definitive
treatment within a reasonable period of
time.
Based on the expert’s testimony, the court found
DOCS 100 percent liable for the suffering and
permanent injuries caused to the Claimant by the
delay in his treatment. It awarded the Claimant
$75,000.00 for past pain and suffering and $15,000
for future pain and suffering.

Failure to Protect: Unsuccessful Case
Tislon v. State of New York, Claim # 108638
(Court of Claims, November 30, 2006)
The Claimant testified that he and his cell mate
“had words” regarding the space they shared in the
cell. Thereafter, while he was sleeping in his bunk,
the cell mate attacked him without warning and
“cracked his head open.” He was taken to an outside

Page 26

hospital, where four staples were used to close the
wound on the top rear portion of his head. He
alleges that, prior to the attack, he had told a
Correction Officer that he and his cell mate were
not getting along. On cross-examination, he
conceded that he did not ask for protective custody
because not “in a million years” did he think his cell
mate would assault him.
The court rejected this claim. In claims arising
from inmate assaults, the central issue is whether
the State had notice of the risk of harm and an
opportunity to intervene in a way that would have
prevented the assault, but failed to do so. Here, the
court found, that State did not have sufficient notice
of any particular threat to the Claimant such that it
could have or should have intervened. The
Claimant’s allegation that the assault was
foreseeable because he told a Correction Officer
that he and his cell mate “could not relate,” was,
without more information, insufficient to rise to
liability. “[L]iability,” the court noted, “may be
based either on defendant's failure to protect the
claimant from a known dangerous prisoner or to use
adequate supervision to stop that which was
foreseeable in an immediate or proximate sense,
rather than in some generalized way.” The
Claimant’s comment that he and his cell mate
“could not relate” was far too generalized, the court
held; it lacked the specificity necessary to permit
the state to take reasonable steps to prevent the
assault.
Failure to Protect: Successful Case
Rosario v. State of New York, Claim # 97663
(Court of Claims, December 12, 2006)
While housed in A Block at Attica, the Claimant
counseled another inmate who had been marked by
the Latin Kings as someone who needed to be
disciplined. He advised the inmate to seek
protective custody. This information got back to the
Latin Kings and, according to the Claimant, in April
1996, he overheard two inmates, known to him as
“Panama” and “Negro,” discussing what he

Pro Se Vol. 17, No. 1; Winter 2007

interpreted as a threat toward him. He immediately
concluded that he was the target of a “hit” and
wrote to the A Block sergeant about his concern for
his personal safety. The next day he was taken to
see Sergeant Reiner, to whom he related his
concerns. Sergeant Reiner found the threats to be
credible and had the Claimant moved out of A
Block that day and assigned to protective custody in
B block. He was later released to the general
population and functioned without problems there
until, without notice, he was transferred to D block.
While at chow in D block, he was seen by some
inmates whom he believed were gang members.
The Claimant told various DOCS officials of his
concerns for his safety if he remained in D block,
and he provided the officials with the nicknames of
the people he feared might assault him. His
concerns were investigated but they were found
insufficiently specific to warrant involuntary
protective custody and the Claimant declined to
request protective custody.
Two days later, the Claimant was standing in
the “go back” line waiting to return to his cell when
a fellow inmate slashed him on his right cheek,
inflicting an eight-inch gaping wound which needed
39 sutures to close. Another inmate was observed
stooping down, picking up an object, and throwing
it into the grass in the recreation yard. A subsequent
search of the yard failed to recover any weapon.
Under these facts, the court held, the State was
liable. The State had either actual or constructive
notice of an unreasonable risk of an attack and it
failed to exercise reasonable care in assessing, and
responding to, the threat to the Claimant’s safety.
The Claimant had been placed first in protective
custody and then into a more secure block. He was
then moved out of the more secure block with no
consideration of the threats of which the State had
been placed on notice. He then notified the
authorities of the threats he perceived and provided
the nicknames of the purported plotters, but the
authorities conducted an insufficient investigation
of these specific threats. Under the circumstances,
the court held, “the risk of harm to the Claimant was

Pro Se Vol. 17, No. 1: Winter 2007

Page 27

reasonably foreseeable… [DOCS] had the ability
and duty to prevent the assault, which…they could
have accomplished by placing the Claimant in
protective custody. Given the specificity of the
threats, and the provision of the nicknames of the
putative protagonists…, the State breached its duty
to this Claimant under these circumstances, and the
harm and injury he sustained was reasonably
foreseeable.”
Practice Pointer: In Gangler v. State of New
York, (Ct Cl, UID #2006-009-159, Claim No.
96352, March 29, 2006), the court summarized the
law applicable to failure-to-protect cases. It stated:
“[T]he State is required to use reasonable care to
protect inmates of its correctional facilities from the
foreseeable risk of harm. Foreseeable risk of harm
includes the risk of attack by other prisoners. The
duty to protect inmates from the risk of attack by
other prisoners, however, does not render the State
an insurer of inmate safety. The scope of the
[State’s] duty of care is to exercise reasonable care
to prevent attacks which are reasonably
foreseeable. The test for liability encompasses not
only what the State knew, but also ‘what the State

reasonably should have known--for example, from
its knowledge of risks to a class of inmates based on
the institution's expertise or prior experience, or
from its own policies and practices designed to
address such risks.’” However, "[t]he mere
occurrence of an inmate assault, without credible
evidence that the assault was reasonably
foreseeable, cannot establish the negligence of the
State.”
Additional Materials
For more information on the kinds of cases that
can be heard in the Court of Claims and the Court’s
rules and procedures, write to the PLS office that
serves the prison in which you are incarcerated for
the following:
PLS Form Memo: “Lawsuits Against the State of
New York”
A Jailhouse Lawyer’s Manual (2005)
Chapter 17, “The State’s Duty to Protect You and
Your Property: Tort Actions”
PLS Form Memo: “Late Claims Against the State
of New York”

A Clarification
In the last issue of Pro Se, we published an article titled, “Efforts of Shi’a
Muslim Inmates to Obtain Separate Services Falter.” In it, we reported that
decisions in two recent cases, Orafan v. Goord, 411 F.Supp.2d 153
(N.D.N.Y., 2006) and Matter of Holman v. Goord, 12 Misc.3d 1174(A) (Sup.
Ct., Sullivan Co., June 29, 2006), in which courts denied Shi’a inmates’
claims that they are entitled to separate Jumah services. In discussing those
cases, we also mentioned a case called, Pugh v. Goord, 184 F.Supp.2d 326
(S.D.N.Y., 2002), in which the court reached a similar conclusion. We should
have noted: a) that the Pugh case was subsequently reversed for technical
reasons (See Pugh v. Goord, 345 F.3d 121 [2d cir. 2003]) and will shortly be
going to trial; and b) Orafan is being appealed.

Page 28

Pro Se Vol. 17, No. 1; Winter 2007

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EDITORS: JOEL LANDAU, ESQ.; KAREN MURTAGH-MONKS, ESQ.
COPY EDITING: FRANCES GOLDBERG
CONTRIBUTORS: SUSAN JOHNSON, ESQ.; PATRICIA WARTH, ESQ.
PRODUCTION: FRANCES GOLDBERG
DISTRIBUTION: BETH HARDESTY

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