Vol. 18, No. 1: Winter 2008 Published by Prisoners' Legal Services of New York

“BOOT THE SHU” BILL BECOMES LAW IN NEW YORK
New York is the first state in the nation to pass
a law requiring that prisoners with serious mental
illness be housed in therapeutic treatment
programs, and not in SHU and keeplock
(segregated confinement), except where such
placement would be inconsistent with the safety
and security needs of the prison. In January 2008,
Governor Spitzer signed this landmark piece of
legislation.
This law, particularly in combination with the
implementation of the settlement agreement
reached in Disability Advocates, Inc. v. New York
State Office of Mental Health and Department of
Correctional Services, et al., 02 Civ. 4002
(S.D.N.Y.), (See Vol. 17, No. 2, Spring 2007
edition of Pro Se for detailed article on the
settlement), vastly increases the resources
committed to the care and treatment of the
seriously mentally ill in prison. There are
approximately 8,000 prisoners in DOCS’ custody
on the active mental health caseload, or 12-13% of
the total prisoner population. The Department of
Justice estimates that as many as 56% of state
prison inmates suffer from some form of mental
illness.
The struggle to pass legislation to protect
prisoners with serious mental illness spanned five
years, and encompassed a strong coalition of

former and current prisoners, family members
of prisoners, mental health advocates, civil
rights supporters, and prisoners and disability
rights attorneys. Notably, the union that
represents the New York State Correctional
Officers also supported the passage of this
legislation. This year marked the fourth year
that the Assembly passed legislation on this
topic, and the second year that the Senate,
demonstrating bipartisan support for this
measure, passed identical legislation by
. . . article continues on bottom Page 2

Also Inside . . .
Sex Offenders and Civil
Management. . . . . . . . . . . . Page 6
Visitation With Children . . . . Page 16

HIV Class Action Settled . . . . Page 18
Federal Rights and Federal
Courts . . . . . . . . . . . . . . . . . .Page 21

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

Vol. 18, No. 1 Winter 2008

Message From the Executive Director
PLS published the first issue of Pro Se in 1984. We created the newsletter so prisoners in New
York State prisons would have a regular and reliable source of information regarding developments
in prisoners’ rights, and to educate and inform prisoners about how to use the state and federal courts.
Since that time, you, our readers, have become more informed about legal issues. In response to
these developments, the breadth and depth of our coverage of prisoners’ rights issues has increased.
Thus, for the past few years, our articles have reflected the growing knowledge of our readership.
While this works well for readers who have been following developments in the law over the years,
it leaves new readers without a publication that explains the basics of the law, such as, what rights
prisoners have, where these rights come from, how to read a legal citation, which courts hear which
types of cases, and what kinds of relief each court can grant. To balance the needs of new and old
readers, we have decided to produce two issues a year that provide basic material on the law for our
newer readers. Beginning with this issue, some of the articles we publish in the Winter and Summer
issues will be geared toward teaching inmates new to the study of law the basics of prisoners’ rights
and the operation of the courts that decide issues affecting these rights. In addition, when we report
case decisions in the Winter and Summer issues, we will explain the basic legal terms and concepts
that we use. The Spring and Fall issues will continue to provide more in-depth coverage of cases and
legal issues. This way we hope to respond to the needs and interests of all of our readers. We
welcome your feed back on this development and are always interested in your comments.

“Boot the SHU Bill”
. . . article continued from Page 1

unanimous vote, sending the bill to the
Governor for his review. Former Governor
Pataki vetoed similar legislation at the close of
the 2007 legislative session, causing public
outcry demonstrated by a multitude of
newspaper editorials from one end of the state
to the other. Governor Spitzer’s office
worked with Assembly and Senate leaders to
modify the bill in accordance with information
from DOCS and OMH leadership. These
efforts resulted in the modified bill, agreed to
by all sides, that the Governor has now signed.
The law (Assembly Bill Number A09342,
Jeffrion Aubry, sponsor; Senate Bill Number
S06422, Michael Nozzolio, sponsor) requires
the building of residential mental health
treatment programs to house prisoners with
serious mental illness.

These programs will be jointly operated by
the New York State Office of Mental Health
and the Department of Correctional Services.
The housing programs will provide clinically
appropriate mental health treatment while
maintaining the safety and security of the
prisons. Screening and ongoing assessments
of prisoners for mental illness are required.
The law also provides important training
elements, requiring that all newly hired
correctional officers and all staff working in
mental health programs receive annual mental
health training, including training on the types
and symptoms of mental illnesses, the goals of
mental health treatment, the prevention of
suicide, and effective and safe management of
prisoners with mental illness.
The New York State Commission on
Quality of Care and Advocacy for Persons
with Disabilities will monitor the quality of
mental health care provided pursuant to the
new law. The State Commission will work
with an advisory committee that includes

Vol. 18, No. 1 Winter 2008
Page 3

independent mental health experts and
advocates, and may include family members of
former inmates with serious mental illness. The
Commission will report annually to the
Governor and the Legislature on the state’s
progress in meeting the requirements of the
new law.
Provisions of the new law take effect on
differing dates. For example, the oversight
responsibilities of the Commission take effect
on July 1, 2008. The law’s requirement to
divert inmates with mental illness from
segregated confinement, however, takes effect
in relation to when the residential treatment
programs are built. The law states that
diversion of inmates will be required within
two years of the completion of the first
program, and no later than 2011.
The law, paired with the settlement in
DAI, Inc., et al. v. New York State OMH and
DOCS, et al., ensures the continued existence
of the mental health programs that have
already come on-line and provides for
additional programs to be added for years into
the future. In tandem, the law and the
settlement establish major improvements in
psychiatric treatment for New York State
prisoners with mental illness from the time
they first arrive in state prison and will do
much to minimize the placement of prisoners
with mental illness in segregated housing.
The Governor’s Executive Budget,
released in January 2008, includes a sizeable
allocation of funding to the Office of Mental
Health and DOCS to implement both the new
law and the Disability Advocates Inc.
settlement. The combination of these funds
will allow for the addition of inpatient and
outpatient bed space and also add
approximately 150 full time OMH staff to
provide services.

News and Briefs
Post Release Supervision
Once again, there have been several
significant developments resulting from
challenges to DOCS’s policy of including a
period of post release supervision (PRS) in all
determinate sentences, without regard to
whether the sentencing court actually imposed
PRS. In People v. Hill, 849 N.Y.S.2d 13
(2007), the Court of Appeals disagreed with the
lower courts’ application of the Court’s
decision in People v. Catu, 792 N.Y.S.2d 887
(2005). In Catu, the Court held that where a
defendant is not informed about PRS at the
time that he pleads guilty, his constitutional
right to due process of law is violated. In Hill,
the Court of Appeals, reversing the Appellate
Division’s affirmation of a trial court decision,
instructed that where a defendant moves to
vacate his sentence because at the time that he
pled guilty, he was not informed that his
sentence included a period of PRS, the
sentencing court cannot simply adjust the
sentence to give him the sentence that he
bargained for. Rather, the Court held, it
must vacate the plea and restore the defendant
to the position that he was in before he
accepted the plea.
In Hill, the defendant went to trial, and after
the complainant testified, notified the court that
he wanted to change his plea to guilty. The
court sentenced him to 15 years. The
defendant later found out that he also had to
serve 5 years PRS. Defendant Hill sought to
vacate his plea, saying that he would not have
pled guilty if he had known that he had to serve
a period of PRS. Instead of vacating his
sentence, the trial court
re-sentenced
Defendant Hill to 12½ years in prison, and
2½ years of PRS. The Appellate Division

v. Quinones, 848 N.Y.S.2d 757 (3rd Dep’t
2007), respectively, joined the Second
Page 4
Vol. 18, No. 1 Winter 2008

affirmed this result, noting that the defendant
had gotten the sentence that he had bargained
for. See, 830 N.Y.S.2d 33 (3rd Dep’t 2007).
The Court of Appeals did not agree, noting
that, pursuant to Penal Law §70.45[5], if the
defendant violated PRS after serving 2 years
and 5 months, he would be returned to prison
for 6 months, even though he only owed 1
month of PRS when he violated.
The Court held that where, at the time of
the plea, the defendant is not informed that his
sentence includes a period of PRS, the
defendant’s waiver of his right to a jury trial is
not knowing and voluntary, and is therefore
unconstitutional. If the defendant moves to
vacate the conviction, he or she must be
allowed to do so. Further, the Court held,
because the constitutional violation occurred
when the defendant entered his plea, and not
when he was sentenced, the sentencing court
cannot simply re-figure the sentence to give
the defendant the sentence that he believed he
was receiving. Rather, the court must allow
him to withdraw his plea, and put him in the
position that he was in before he accepted the
plea.
In another development, the Court of
Appeals accepted six more cases challenging
sentences to which periods of PRS had been
added even though there had been no mention
of PRS at sentencing. Five of the cases –
People v. Sparber, People v. Lingle, People v.
Thomas, People v. Frazier, and People v.
Ware – involve defendants who are raising
claims in the context of their direct appeals.
The sixth case, Matter of Garner v. DOCS,
is an Article 78 challenge to the imposition of
PRS by the Department of Correctional
Services. We expect that the decisions in
these cases will resolve some of the issues
surrounding the imposition of periods of PRS
where the court did not mention PRS at
sentencing.
And, in the Appellate Division, the First
and Third Departments, in People v. Figueroa,
846 N.Y.S.2d 87 (1st Dep’t 2007), and People

Department in holding that where neither the
sentencing minutes nor the sentence and
commitment papers mention a period of PRS,
the sentence actually imposed by the court does
not include any period of PRS.
Finally, the Third Department, in Matter of
Dreher v. Goord, 858 N.Y.S.2d 758 (3rd Dep’t
2007), joined the First Department in holding
that where the sentencing court has not
expressly imposed a period of PRS, DOCS
does not have the authority to impose a period
of PRS. Quoting Early v. Murray, 451 F.3d 71
(2d Cir. 2006), the Court held that, “[t]he only
cognizable sentence is the one imposed by the
judge. Any alteration to that sentence,
unless made by a judge in a subsequent
proceeding, is of no effect.” In reaching this
result, the court advised that its prior decisions
to the contrary should no longer be followed.

New York’s Highest Court
Finds Correction Law §24
Constitutional
In September 2005, Keith Haywood filed
two pro se §1983 actions in state Supreme
Court alleging that various Department of
Correctional Services (DOCS) employees had
engaged in conduct that violated his federal and
state constitutional rights. The first case was a
complaint against defendant Curtis Drown, a
DOCS hearing officer, who found Mr.
Haywood guilty of improper mail solicitation.
Mr. Haywood claimed that defendant Drown
was not an impartial hearing officer, had found
Mr. Haywood guilty on less than substantial
evidence and had imposed a penalty that was
intended to censor Mr. Haywood in violation of
his First Amendment rights. Mr. Haywood
asked the court to expunge the charges and
award him monetary damages.
In his second lawsuit, Mr. Haywood
named a DOCS hearing officer, two correction
officers and two of their superior officers as

defendants. Mr. Haywood alleged that the
various defendants conspired in writing a false

presented his argument that Correction Law
§24 was unconstitutional but, again, the court
agreed with the defendants and dismissed the

Vol. 18, No. 1 Winter 2008
Page 5

misbehavior report, used excessive force,
tampered with his urinalysis test and denied
him a fair and impartial hearing. Again Mr.
Haywood asked for monetary damages.
In most states, when an inmate complains
about violations of his federal constitutional
rights and seeks money damages, he has the
choice of filing a §1983 action in either State
or Federal court. However, in New York
State we have a specific State statute,
Correction Law §24, that prohibits all actions,
state and federal, against employees of DOCS
in their personal capacities for money damages
arising out of their employment.
Thus, although New York supreme courts
have the jurisdiction to hear §1983 damage
claims against state employees, Correction
Law §24 has been interpreted as carving out
an exception for DOCS employees.
After Mr. Haywood filed his case in the
state Supreme Court, the defendants made a
motion to dismiss based on Correction Law
§24. Mr. Haywood responded by arguing that
Correction Law §24 was unconstitutional
because it violated the Supremacy Clause.
Article VI, clause 2 of the U.S. Constitution,
known as the Supremacy Clause, states: “This
Constitution, and the Laws of the United
States which shall be made in Pursuance
thereof; and all Treaties made, or which shall
be made, under the Authority of the United
States, shall be the supreme Law of the Land;
and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.”
Mr. Haywood argued that since the right to
file a §1983 action is a federal right,
Correction Law §24 impermissibly
discriminates against that right because it
prohibits a person from filing a §1983 action in
state court for money damages against a
DOCS employee.
The court disagreed and granted the
motion to dismiss. Mr. Haywood appealed. In
the Fourth Department, Mr. Haywood again

case. Although the court did not specifically
characterize Correction Law §24 as a subject
matter jurisdiction statute, it did rely on
Woodward v. State, 805 N.Y.S.2d 670 (3d
Dep’t 2005). In Woodward, the court held that
the Supreme Court did not have subject matter
jurisdiction to decide a §1983 retaliation claim
filed by a DOCS employee, when the
allegations in the complaint indicated that the
defendant, also a DOCS employee, was acting
“within the scope of his employment.”
Therefore, arguably, the court in Haywood
viewed Correction Law §24 as a subject
matter jurisdiction statute and found that the
state was authorized to limit the jurisdiction of
its courts.
Because the case involved the issue of the
constitutionality of a state statute, Mr.
Haywood was able to appeal to the Court of
Appeals as of right. At that point, the private
law firm of Dechert, Price and Rhodes, Jason
E. Murtagh, of counsel, agreed to take on Mr.
Haywood’s case, pro bono. There were two
questions before the Court of Appeals: Whether
Correction Law §24 applies to federal civil
rights actions and if so, whether Correction
Law §24 violates the Supremacy Clause or is
preempted by 42 U.S.C. §1983.
On appeal, Mr. Haywood’s counsel argued
that if Correction Law §24 is construed as
either an immunity statute or a statute limiting
the subject matter jurisdiction of state courts, it
is unconstitutional because it is preempted by
federal law, burdens the litigation of a federal
claim, discriminates against a federal right and
conflicts with principles of federalism.
In a 4 to 3 decision, the Court held that
Correction Law §24 does not violate the
Supremacy Clause. Haywood v. Drown, 2007
WL 4164492 (Ct. Apps. 2007). The Court
arrived at this conclusion noting the following:
In general, §1983 claims for money damages
against government officials can be filed in New
York State Supreme Courts.
However,

Correction Law §24 creates an exception to
this rule because it prevents New York
state courts from exercising jurisdiction over
damage claims against DOCS employees. The

state) and competence over the subject matter
involved (whether the claim arose within the
state’s jurisdiction). The dissent noted that
none of these concerns were present in this

Page 6
Vol. 18, No. 1 Winter 2008

Supreme Court has clearly held that
“[c]onduct by persons acting under color of
state law which is wrongful under 42 U.S.C.
§1983 . . . cannot be immunized by state
law.” So, at first glance Correction Law §24
appears to violate the Supremacy Clause. But,
the Court cautioned, the Supremacy Clause
also gives the states the power to deny the
enforcement of a federal right if the state can
demonstrate that it has a “valid excuse” for
doing so.
In this case, held the Court, the state has
enacted a statute that limits the subject matter
jurisdiction of its state supreme courts over a
certain type of claim – damage claims against
DOCS employees. Since the statute does not
discriminate against one claim in favor of
another but rather prohibits all damage claims,
both state and federal, there is no Supremacy
Clause violation.
In a fifteen page dissent, Justice Jones,
joined by Justices Smith and Pigott, wrote
that Correction Law §24 should be found to
be unconstitutional because it violates the
Supremacy Clause. The dissent agreed that
the Supremacy Clause gives the states the
power to deny the enforcement of a federal
right but to do so the state must demonstrate
one of two things: either that the rule involved
is a neutral jurisdictional rule or that the state
has a valid excuse for refusing jurisdiction.
The dissent asserted that the statute
involved in this case was clearly not a neutral
one since it “functions as an immunity statute
that allows state courts to selectively exclude
prisoner suits for damages against DOCS
personnel.” As to whether New York state
has a “valid excuse” for refusing to hear §1983
damage claims against DOCS personnel in
state court, the dissent pointed to the three
Supreme Court cases that have defined “valid
excuse” and noted that all of them involved
state concerns of power over the parties
(whether the parties were residents of the

case. The claims arose within the State’s
jurisdiction,“the State supreme court has
jurisdiction over the parties and, based on the
State’s willingness to allow the adjudication of
all section 1983 claims against other state
employees, competence over the type of claim
at bar.”
PLS, together with the Prisoners’ Rights
Project of The Legal Aid Society and the New
York State Defenders Association (NYSDA)
appeared as amicus curiae in support of Mr.
Haywood’s appeal to the Court of Appeals.

State Cases

Sex Offenders and Civil
Management
Courts Agree On Standard for
Probable Cause Hearings
Several courts recently addressed the issue
of the evidentiary standard that courts should
apply at hearings held to determine whether,
according to Article 10 of the Mental Hygiene
Law, there is probable cause to believe that
an inmate is a sex offender requiring civil
management. In Matter of State of New York
v. J.T., 2007 WL 3284327 (Sup. Ct. N.Y. Co.
Nov. 5, 2007), the court’s decision both set
forth the procedures required by Article 10, and
decided the issue of the petitioner’s burden of
proof at a probable cause hearing.

Three Step Procedure
Step 1
A civil management proceeding begins

Page 7

when DOCS or OMH asks the case review
panel (CRP or “the Panel”) to review the case
of an inmate – who may be detained as a sex

Vol. 18, No. 1 Winter 2008

case “by clear and convincing evidence.”
offender – who is approaching his or her
release date. The Panel reviews the inmate’s
records, and conducts a psychiatric exam. If
the Panel decides that the inmate is a sex
offender requiring civil management, the Panel
will notify the inmate and the Attorney General
of its finding.

Court Defines Probable Cause
Step 2
If the Attorney General (AG) agrees with
the Panel’s decision, the statute requires that
he start a legal proceeding by filing a sex
offender civil management petition. In this
proceeding, the State of New York is the
petitioner, and the inmate is the respondent.
The court must hold a probable cause
hearing within thirty days of the filing of the
petition. The judge is the fact finder at the
hearing; it is not a hearing before a jury. The
issue at the hearing is whether there is
probable cause to believe that the respondent
is a sex offender requiring civil management.
At this hearing, the burden of proof (which
party has the responsibility of submitting
evidence) is on the State.
Step 3
If the court finds that the evidence
submitted by the State of New York
establishes probable cause, the inmate will be
committed to a secure treatment facility.
Within sixty days of the probable cause
decision, a jury trial must begin, to decide
whether the inmate is a sex offender who
suffers from a mental abnormality – defined as
a condition, disease or disorder that affects the
emotional, cognitive or volitional capacity of
a person in a manner that predisposes him or
her to the commission of conduct constituting
a sex offense and that results in that person
having serious difficulty in controlling such
conduct. At the trial, the State must prove its

In J.T’s case, the court was required to
decide the State’s burden of proof at the
second stage of the proceedings: the probable
cause hearing. The respondent-inmate argued
that because he would completely lose his
liberty for at least two months, the petitioner
should have to show that it was “more
probable than not” that the respondent is a sex
offender requiring civil management. The State
argued that it should only have to produce
evidence showing that there is “reasonable
cause to believe” that the inmate is a sex
offender requiring civil management. The
court adopted the “reasonable cause to
believe” standard, rather than the “more
probable than not” standard. Two other cases
reaching the same result with respect to the
State’s burden of proof at the probable cause
hearing are Matter of New York v. Pedraza,
18 Misc.3d 261 (Sup. Ct. Suffolk Co. 2007)
and Matter of New York v. Junco, 836
N.Y.S.2d 856 (Sup. Ct. Wash. Co. 2007).

Inmate Not Entitled to Counsel at
Psychiatric Examination
In Matter of State v. Davis, 842 N.Y.S.2d
703 (Sup. Ct. Bronx Co. 2007), the court held
that an inmate is not entitled to be represented
by counsel during the first step of the civil
management proceedings. During Step 1, the
case management committee reviews the
inmate’s file and conducts a psychiatric

examination. The inmate argued that because
he did not have a lawyer during Step 1, any
statements that he made to the psychologist
during the psychiatric exam were inadmissible
at the probable cause hearing (Step 2 of the
civil management proceedings). Conducting
the psychiatric exam prior to
the

Page 8

appointment of a lawyer, the inmate argued,
violated his statutory and constitutional rights
to counsel. The court rejected the argument.
The court noted that the purpose of the
examination procedure is to determine whether
the inmate is a sex offender requiring civil
management; it is not an examination that
necessarily leads to a civil management
proceeding. In addition, the court noted that
Article 10 does not provide for assignment
until the probable cause hearing. Based on
these two facts, the court concluded that the
right to counsel provided by Article 10 is not
constitutionally infirm (does not violate the
constitution).

Subject of Article 10 Proceeding
Moved Closer to His Attorney
A month after the first decision in Matter
of State v. Davis, the court issued a second
decision, Matter of State v. Davis, 2007 WL
2949130 (Sup. Ct. Bronx Co. Oct. 18, 2007),
requiring that the State move the respondent
from a psychiatric facility in Northern New
York – 400 miles from his attorney’s office –
to a psychiatric center closer to where his
attorney had his office. The court found that
while Article 10 gave the Commissioner of
Mental Health the discretion to choose the
facility where the respondent will be housed
pending trial, it was not the intent of the
legislature to have the respondent housed 400
miles from his lawyer while the two are
preparing for trial.

Vol. 18, No. 1 Winter 2008

P sychologist Cannot Rely on
Unreliable Hearsay in Pre-Sentence
Report
In Matter of State v. Dove, 846 N.Y.S.2d
863 (Sup. Ct. Bronx Co. 2007), the court
held that during Step 1 of the civil
management proceedings, the examining
psychiatrist cannot rely on unreliable hearsay
found in the inmate’s institutional and criminal
records. In Dove, the psychologist who
determined that the respondent was a sex
offender in need of civil management relied in
part on statements from the victims of crimes
that were in the inmate’s pre-sentence report.
The court held that those statements were
hearsay and unreliable, because the victims of
the crimes were under no business duty to
speak with the investigators nor were their
statements made under oath. (Records that
are made in the ordinary course of business are
often found to be admissible even though they
are hearsay, and in some circumstances, sworn
statements may be admissible). The court
ordered references to the victim statements
redacted (removed) from the psychologist’s
report. The court found that even with the

redaction, there was more than enough
information in the report to support a finding
of probable cause to believe that the
respondent is a sex offender requiring civil
management.

More On Article 10 of the MHL
To learn about a recent federal court
decision holding two sections of Article 10 of
the Mental Hygiene Law unconstitutional, see
the article on Mental Hygiene Legal Services
v. Spitzer, 2007 WL 4115936 (S.D.N.Y. Nov.
16, 2007) under Federal Cases in this issue of
Pro Se.

exhibits to a motion to reargue and/or renew.
The court denied that motion, as well as a
motion to vacate the prior judgment and order
on the grounds (basis) of fraud,
misr epr esent at io n o r mis c o nd u ct .
Mathie appealed, and in a decision entitled
Matter of Mathie IV v. Selsky, et al., 845
N.Y.S.2d 867 (3rd Dep’t 2007), the Third
Department noted that while the respondents
conceded that the documents attached to the
petitioner’s motion papers referred to the
reversed disciplinary hearing, and that such
references should have been expunged, it
appeared that the respondents had, by the time
the case got to the Appellate Division,
expunged the improper references from Mr.
Mathie’s records. For this reason, the court

Vol. 18, No. 1 Winter 2008
Page 9

Disciplinary Cases

Incomplete Expungement
Leads to Award of Costs
In 2004, Michael Mathie, IV filed an
Article 78 petition asking that the court order
the respondents to expunge all references to a
Tier III hearing that had been reversed on
administrative appeal. The respondents moved
to dismiss the petition, claiming that
expungement had been made, and the petition
was therefore moot (the issue no longer
exists; here, because the petitioner got what
he wanted). The court granted the
respondents’ motion.
Following the dismissal of the lawsuit,
petitioner Mathie made a FOIL request for
documents that referred to material that the
court had ordered expunged. Petitioner
Mathie then submitted these documents as

did not reverse the lower court’s ruling that
the issues raised in the petition were moot.
The petitioner also requested that the court
order the respondents to reimburse him for the
costs that he incurred (money he spent) in
connection with the Article 78. The court
found that the disbursement forms that the
petitioner had submitted with his motions
showed that he had incurred expenses of
$20.32. The court held that “under the
circumstances presented,” the petitioner
should be permitted to recoup (recover) those
expenses.

Doctrine of Res Judicata Does
Not Bar Second Tier III
Proceeding Following
Criminal Conviction
The Court of Appeals affirmed two lower
court decisions holding that the doctrine of res
judicata does not bar a second Tier III
proceeding where, between the time of the

first Tier III and the second, the inmate was
criminally convicted of the conduct that was
the subject of the first Tier III hearing. Matter
of Josey v. Goord, 9 N.Y.3d 386 (2007). The
facts giving rise to this Article 78 proceeding
were as follows. Petitioner Josey was charged
with assaulting another inmate. At the time of
his Tier III hearing, security staff were aware
that the victim of the assault had died.
Nonetheless, this fact was not included in the
misbehavior report. The petitioner was found
guilty of assault, and sentenced to 24 months
SHU.
A year later, the petitioner pled guilty to
manslaughter in connection with the same
underlying facts. DOCS then charged him
with violating Inmate Rule 1.00, Penal Law
offense and sentenced him to an additional 72
months in SHU and 156 months of lost good
Page 10

time. Petitioner Josey challenged the hearing,
arguing that because both Tier III proceedings
arose from the same facts, the doctrine of res
judicata barred the second proceeding.
The doctrine of res judicata prevents a
party from bringing a claim where a judgment
on the merits exists from a prior action
between the same parties involving the same
subject matter. The doctrine applies both to
court decisions and quasi-judicial
administrative determinations, such as Tier III
hearings. However, prior to applying the
doctrine to an administrative proceeding, the
court must decide whether doing so would be
consistent with the role of the agency, the
necessities of the particular case, and the
nature of the precise power being exercised.
The doctrine should give conclusive effect to
agency determinations only if its application is
consistent with the nature of the particular
administrative decision.
In Matter of Josey v. Goord, the Court
examined DOCS Disciplinary Rule 1.00, which
permits departmental sanctions based on a
criminal conviction and, by its own terms, does
not preclude an inmate from being disciplined
at any time for any violation of the other rules

of conduct based on the same incident (see 7
N.Y.C.R.R. §270.2(A) ). Concluding that this
rule allows DOCS to punish an inmate twice
for the same underlying conduct, the Court
held that in the context of prison disciplinary
hearings, where the second proceeding is
based on a criminal conviction, the doctrine of
res judicata does not bar the second Tier III
for violating the rule prohibiting the
commission of a Penal Law offense.
In reaching this result, the Court
recognized that DOCS has valid a penological
(relating to the management of prisons)
interest in seeing that disciplinary
determinations are made quickly, which often
precludes a thorough investigation.
In
contrast, where a criminal investigation results
in a conviction, issues such as mens rea (the
Vol. 18, No. 1 Winter 2008

defendant’s state of mind, e.g., whether the
assault was motivated by racial animus) and
self defense are resolved beyond a reasonable
doubt. Thus, the Court noted, DOCS has both
a strong penological interest in having the
ability not only to conduct a disciplinary
hearing and quickly impose a penalty for the
violation of disciplinary rules, but also to
modify that penalty in light of a subsequent
criminal conviction premised on the same act.
The court held that res judicata does not
preclude DOCS from disciplining an inmate for
being convicted of a Penal Law offense even
though DOCS previously assessed a penalty
for the inmate’s violation of disciplinary rules
stemming from the same conduct. To
conclude otherwise, the Court said, would
impede DOCS’s ability to promote prison
safety and have the perverse effect of
encouraging hearing officers to impose more
stringent disciplinary penalties initially, before
any criminal investigation and proceedings are
concluded.

Employee Assistant Claim
Dismissed; Substantial Evidence

Claim Not Preserved
In Matter of Woodward v. Selsky, 841
N.Y.S.2d 411 (3rd Dep’t 2007), the court
considered the petitioner’s claims that his right
to employee assistance had been violated and
that the hearing officer’s determination that he
had possessed a weapon was not supported by
substantial evidence. The court held that
because the petitioner did not raise the
substantial evidence claim before he got to the
Appellate Division, he had not preserved the
issue (to preserve an issue requires raising the
issue in a timely manner, and objecting to the
hearing officer’s or the court’s resolution of
the issue), the court would not consider it.

In Matter of Reid v. Selsky, 842 N.Y.S.3d
113 (3rd Dep’t 2007), the petitioner was
charged with threats and harassment based on
a letter that he had sent to the Commissioner
of DOCS. The misbehavior report stated that
the letter was offensive and obscene. The
petitioner offered an innocent interpretation of
the letter and put on a retaliation defense.
The court ruled that whether the letter
should be given an innocent, as opposed to an
inculpatory (tending to prove guilt),
interpretation, and whether the report was filed
in retaliation for the petitioner’s legally
protected conduct, were credibility issues that
the law gives the hearing officer the authority
to decide.
Practice Pointer: This is not the first time
that the Appellate Division has held that
determining whose interpretation of a letter,

Vol. 18, No. 1 Winter 2008
Page 11

The court further held that the record
showed that between the hearing officer and
the employee assistant, the petitioner received
all of the documents that he had requested,
and that the petitioner had not shown that he
was prejudiced (that his defense was hurt) by
the manner in which the assistant helped him.
Practice Pointer: In order to maximize the
chances that a court will reach the issues
that you raise in an Article 78 proceeding,
you need to raise them in a timely manner.
You should raise all the issues that you want
the court to reach at your hearing and again
on appeal to the Director of Inmate
Disciplinary Programs.
The issue of
whether a determination of guilt is supported
by substantial evidence is one of the few
issues that can be raised for the first time in
an Article 78 petition. It must be raised in
the petition, and if it is not raised there,
cannot be raised in the appellate division.

Court Rules Meaning of Letters
Is a Question of Credibility

photograph or videotape is correct is a
question of credibility. For example, in
Matter of Robinson v. Selsky, 840 N.Y.S.2d
230 (3d Dep’t 2007), the court had to
determine whether the hearing officer’s
determination that a letter was threatening
was supported by substantial evidence.
Rather than reviewing the letter itself, the
court held that whether the inmate’s
innocent interpretation of the letter should
be credited was a credibility determination to
be made by the hearing officer. We at PLS
disagree with the court’s ruling that the
que s tion of whe the r a writte n
communication is offensive or obscene – or
whether a videotape shows the petitioner
engaging in an act of misconduct – is a
credibility issue. Rather, we think that this is
a fact issue to be resolved by the hearing
officer, and that at least where the item
which is the subject of interpretation is the
primary evidence against the petitioner, the
hearing officer’s decision is subject to
substantial evidence review by the courts.

Failure to Call Witnesses Leads
to Expungement
In Matter of Ramsey v. Artus, 2007 WL
2988581 (Sup. Ct. Clinton Co. Oct. 1, 2007),
the misbehavior report alleged that during the
morning feed-up, the petitioner was yelling
and caused other inmates to start yelling. The
petitioner asked for five inmate witness whom
he was able to identify only by their cell
numbers. The hearing officer called the three
inmates who were still in the prison where the
incident occurred. Inmate 1 testified that he
knew nothing about the incident. Inmate 2
said that he heard profanities and someone
yelling in petitioner’s cell. Inmate 3 testified
that he was not aware of any incident and did
not hear any argument between staff and
petitioner. The hearing officer stated that
having gotten testimony from three inmates, he
Page 12

was not going to make efforts to locate the
other two – one of whom was in the prison
where the hearing was taking place – because
their testimony would be redundant (the same
as the other inmate’s testimony, and therefore
unnecessary).
There was no written explanation for the
hearing officer’s refusal to call these two
witnesses. The hearing officer found the
petitioner guilty of the charges.
Seven N.Y.C.R.R. §253.5(a) provides that
inmates may call witnesses at their hearings
providing that their testimony is material
(logically connected to the issues before the
trier of fact) and not redundant, and that
calling them does not jeopardize (threaten)
institutional (prison) safety or correctional
goals. In this case, the court did not accept
the hearing officer’s reason for not calling the
witnesses. The court noted that the petitioner
had provided sufficient information to allow
prison staff to identify the two witnesses.
Further, the court found, because the
testimony of the three witnesses who did
testify was not consistent, the testimony of the

proposed witnesses could not be considered
redundant. Based on the hearing officer’s
failure to call witnesses, the court granted the
petition and ordered that the hearing be
reversed.

Lack of Foundation for Drug
T e s t R e s u l t s L e a ds t o
Expungement
Where an inmate at a Tier III hearing is
charged with possession of drugs based on
chemical testing of a substance found in the
inmate’s possession, the officer who tested the
drugs must present evidence of the nature of
the test and the test procedures. This evidence
is the foundation (legally required factual
basis) for the admission of the officer’s
testimony that testing showed the substance to
be an illegal drug. In Matter of Mingo v.
Vol. 18, No. 1 Winter 2008

Ercole, 843 N.Y.S.2d 644 (2nd Dep’t 2007),
the petitioner was charged with possession of
heroin. At the hearing, an officer who had not
done the testing, testified that the substance
had tested positive for heroin. There was no
testimony from the officer who had actually
tested the substance, nor was there any
testimony about the testing procedures or the
nature of the test. The Second Department
held that without such testimony, the hearing
officer’s finding that the petitioner had
possessed heroin was not supported by
substantial evidence. The court went on to
hold that in light of this error and the passage
of time, the proper remedy is reversal and
expungement.

Regulations Do Not Require
That Witnesses Testify In
Inmate’s Presence

In Matter of Chavis v. Goord, 865
N.Y.S.2d 866 (3rd Dep’t 2007), the court
considered whether the hearing officer’s
refusal to allow a witness to testify in the
inmate’s presence violated the inmate’s right
to call witnesses. Seven N.Y.C.R.R. §254.5
provides that a witness will testify in front of
the inmate, unless doing so jeopardizes
(threatens) institutional (prison) safety or
correctional goals. If the hearing officer finds
that a witness should not testify in the inmate’s
presence, the regulation requires that the
witness’s testimony be taped and that the tape
be played for the inmate.
The Chavis court cited to Almonor v.
Selsky, 678 N.Y.S.2d 402 (3rd Dep’t 1998),
where the Third Department held that it would
jeopardize institutional safety to require a
security witness to be physically present at the
hearing where the officer was covering a
housing unit at the time of the hearing and
could not be relieved. The Almonor court
found that the regulation’s mandate was met
when the witness testified over a speaker
Vol. 18, No. 1 Winter 2008

phone while the inmate listened and posed
questions. Likewise, in petitioner Chavis’s
case, the court held that allowing the witness
to testify via speaker phone satisfied the
regulatory mandate.
Practice Pointer: Safety and security trump
an inmate’s right to have witnesses testify in
his or her presence. At your hearing, if a
witness testifies by speaker phone, or if you
are allowed to hear a tape of a witness’s
testimony, you should ask the hearing officer
to place on the record the reason that the
witness was not physically present at the
hearing. If it appears that the reason is not
related to safety or security, you should state
your objection as follows: Seven N.Y.C.R.R.
§254.5 requires that a witness come to the
hearing unless doing so jeopardizes
institutional safety or correctional goals.
The reason you gave for taking the testimony
when I was not present is not related to

safety or security. I was prejudiced (hurt) by
this because you were unable to observe the
witness’s demeanor when you assessed his
credibility
(if the witness testified by
telephone) and/or I was not able to ask
follow up questions (if you were not present
when the witness testified). After you place
your objection on the record, you should
proceed with the hearing.

Parole
UPDATES

BOP Releases State’s Oldest
Prisoner
In the Winter 2006 issue of Pro Se, we
reported on Matter of Friedgood v. Board of
Parole, 802 N.Y.S.2d 268 (3rd Dep’t 2005).
That decision reversed a lower court’s
Page 13

dismissal of Charles Friedgood’s challenge to
the Parole Board’s decision denying him
parole release. The court found that while the
Parole Board knew that Dr. Friedgood – then
87 years old and the oldest prisoner in DOCS
custody – had serious medical problems and a
good disciplinary record and had expressed
remorse and saved two lives while an inmate,
the Parole Board did not mention these facts,
and instead based its decision on the nature of
his crime, saying that his offense shows that he
is prone to extreme violence. The Court found
that not only was there no support in the
record for the Board’s conclusion, but that it
was so irrational (not based on reason) as to
border on impropriety (close to misconduct).
The court reversed the hearing and ordered a
rehearing.
Pro Se is happy to report that on

November 7, 2007, the Parole Board voted to
release Dr. Friedgood, now 89 years old. He
served thirty-two years of a 25 year to life
sentence imposed after he was convicted of
killing his wife. Dr. Friedgood’s daughter, a
lawyer, represented her father in a challenge to
the Parole Board’s failure to release violent
felons. In its decision granting parole, the
Board of Parole imposed the condition that
Dr. Friedgood have no contact with his
children or grandchildren, without first getting
permission from his parole officer.

After Court Orders New
Hearing, DOP Releases Man
Serving 18 Years to Life
Alvaro Sanchez was found guilty of felony
murder and armed robbery for his role as the
get-away driver in a 1986 robbery that resulted
in the death of a janitor. He was sentenced to
18 years to life. Last summer, in Matter of
Sanchez v. Dennison, 7/10/07 N.Y.L.J. 21,
(col. 3), Index No. 1942-07, the Supreme

Page 14

Court, Albany County, ordered the Parole
Board to conduct a re-hearing of Mr.
Sanchez’s 2005 parole hearing. The court
noted that a determination of the Board of
Parole will not be judicially disturbed (the
court will not reverse a parole board decision)
unless it is “so irrational as to border on
impropriety.” This means that in order to
succeed, an inmate must show that the Parole
Board violated its statutory mandate in
denying the inmate’s application for parole
release. The Board’s statutory mandate is
found in Section 259-I of the Executive Law.

Section 259-I states that the Parole Board
shall not grant parole merely as a reward for
good conduct while in prison, but must also
consider if there is a reasonable probability
that the inmate will live and remain at liberty
without violating the law, and that release is
not incompatible with the welfare of society
and will not so deprecate (belittle) the
seriousness of the crime as to undermine
respect for the law. Section 259-I also
requires that in making its release decision, the
Board consider the inmates’s institutional
record; performance in temporary release
programs; release plans; whether there is a
deportation order; and statements from the
victims of the crime.

The Parole Board’s Statutory Mandate

The DOP’s Decision to Deny Release

Noting Mr. Sanchez’s Master’s degree,
clean disciplinary record, programming, and
other accomplishments, and the facts relating
to Mr. Sanchez’s life at the time of the crime,
the facts of the crime, and his callous disregard
for the value of human life and the laws of the
state, the Board found that parole release
would be incompatible with the public safety
and welfare and would so deprecate the
seriousness of his crime as to undermine
respect for the law.
Vol. 18, No. 1 Winter 2008

that it was required to vacate the Board’s
decision and remitted the matter for a new
hearing.
Board Approves Release
Mr. Sanchez appeared at a re-hearing in
October 2007 and he was granted release to
parole supervision. After 21 years in prison,
on November 21, 2007, Alvaro Sanchez went
home.
Vol. 18, No. 1 Winter 2008

The Court’s Decision
The court found that the Board had
violated its statutory mandate because it did
not fully and fairly examine all of the available
and relevant information, which, the court
said, “clearly demonstrates [the petitioner’s]
extraordinary rehabilitative achievements and
would appear to militate in favor of granting
parole.” Among these achievements were:
Associate’s, Bachelor’s and Master’s degrees,
completion of more than nine prison programs,
no tickets for 8 years, recommendations from
ten correction officers, and a 26 page
psychological report concluding that Mr.
Sanchez should be released.
The court wrote that the Board has a duty
to fully and fairly examine all of the factors set
forth in §259-I, and that it did not do so in this
case. Rather, the court found, the Board
glossed over the fact that Mr. Sanchez had
been in prison for 20 years, and simply noted
several of his achievements. The court held
that simply noting several of a great many
accomplishments is not the same as
considering them in a fair and thoughtful
manner. The court noted the Board ’s failure
even to mention the references from 11
officers and the psychological report. Finding
that not only had the Board erroneously
concluded that the petitioner was an active
participant in the victim’s death, but that the
Board had also failed to give due consideration
to the items that the petitioner submitted and
to apply the statutory standard, the court held

OTHER PAROLE NEWS

Governor Nixes Settlement
In early 2006, ten inmates sued Governor
Pataki, alleging that he had adopted an
unwritten policy pursuant to which A-1 violent
felony offenders were repeatedly denied parole
based mainly or entirely on the nature of their
crimes. While parole officials deny there is or
was such a policy, on November 7, 2007, the
New York Law Journal published an article
reporting that the attorneys representing the
plaintiffs had sent their clients letters saying
that they and counsel for the defendants were
working out a settlement of the lawsuit,
known as Graziano v. Pataki, that would
provide new hearings to all inmates who are
serving maximum sentences of life for A-1
violent felony convictions and who had been
denied parole prior to April 16, 2007.
Shortly after the article was published,
Governor Spitzer announced that no
settlement was in the offing and that he would
fight the lawsuit. In an article published in the
Daily News on November 15, the Governor’s
spokesperson was quoted as saying, “The state
will absolutely litigate the case. The state has
taken the position that the Parole Board has
the right to reject parole for violent felons.”

For additional information on
developments in Graziano v. Pataki, see
article under heading Federal Cases in this
issue of Pro Se.

released from parole supervision, the District
Attorney (DA) brought an Article 78
proceeding against the Chairman of the Board
of Parole, asking the court to find that the
Parole Board’s decision to release the parolee
from parole supervision prior to making
restitution was 1) arbitrary and capricious,
and 2) violated section 259-j(2) of the

Page 15
Page 16

Court Orders Reconsideration
of Parolee’s Release From
Supervision
In an unprecedented (never done or
known before) decision, a Supreme Court
Judge ordered the Division of Parole (DOP) to
reconsider its decision to grant early release
from parole supervision to a parolee wh, while
she was on parole, had failed to make
restitution (pay money owed) as ordered by
the court. In Matter of Lungen v. Dennsion,
2007 WL 3346127 (Sup. Ct. Sullivan Co. Oct.
13, 2007), the court vacated the decision by
the DOP to release a parolee from parole
supervision and to consider her sentence
satisfied (completely served). In this case, the
parolee had pled guilty to grand larceny and
was sentenced to 5 to 15 years in prison and
restitution in the amount of $866,000. While
she was in prison, money was taken from her
prison wages towards restitution. She was
granted merit time and released to parole
supervision. The same month that she was
released, a restitution order for $869,222
replaced the original restitution order. A year
later, although the parolee had not made any
restitution since her release, the DOP granted
her presumptive release from parole
supervision.
Upon learning that the parolee had been

Executive Law. Section 259-j(2) provides that
a merit termination (ending) is the end of a
sentence to which it relates. The section also
says that the DOP cannot grant a merit
termination unless it is satisfied that the
termination of sentence is in the best interests
of society, and that the parolee, “otherwise
financially able to comply with” a court
imposed order of restitution, has made a good
faith effort to make restitution.
A hearing was held on the DA’s petition.
At the hearing, witnesses from the DOP
testified that they had checked with several
state agencies, including the district attorney’s
office, and were told that there was no
restitution order. The court found that the
witnesses were not credible (believable) and
that the DOP knew or should have known of
the second restitution order. The court held
that where the Executive Law mandates
(requires) the DOP to check the restitution
status of an applicant for presumptive release,
and where the DOP knew that the original
restitution order was for a large amount, and
that the second restitution order was being
made, the DOP’s decision to grant
presumptive release was arbitrary and
capricious and violated Executive Law
§259-j(2).
The court ordered that the decision to
presumptively release the parolee be vacated
and reversed, that the DA serve the restitution

order on the DOP and DOCS, and that the
DOP make a de novo determination (as
though the first decision had not been made) of
the parolee’s suitability for presumptive
release.

11/9/2007 N.Y.L.J. 25, (col. 1), Index No.
V13689-05/06 (Fam. Ct. N.Y. Co. 2007).

Best Interests of the Child Test
In reaching this result, the court used a
“best interests of the child” test. This means
that while the court listened to what the
mother and father wanted, and thought about
their concerns, at the end of the day, the court
made a decision based on what it thought
would be best for Kendolyn.

Vol. 18, No. 1 Winter 2008

Miscellaneous State Court
Decisions

Visitation with Children
When Kenneth G. was arrested on a
number of violent federal charges, his
daughter Kendolyn was eight months old.
When Kendolyn was four, Kenneth G. was
sentenced on those charges to thirty-five (35)
years in federal prison. Kenneth G. petitioned
(asked) a court to order that his daughter’s
mother bring Kendolyn to visit him in federal
prison. The petition was filed in the Family
Court of the State of New York. Recently,
that court issued a decision holding that twice
a year, Kendolyn will visit with her father in
prison. The visits are to be supervised
(watched) by a social worker. The court also
ordered that Kenneth G. be permitted to phone
his daughter twice a month. The order
requires Kenneth G. to pay Kendolyn’s travel
expenses. If Kenneth G. is transferred to a
prison that is more than 130 miles from New
York City, the visits will be stopped. The case
is known as Kenneth G. v. Aricelis A.,

Vol. 18, No. 1 Winter 2008

The “best interests” test is the test used in
many cases in Family Court that involve
children and their parents. Sometimes the
mother’s ideas about what is best for a child
conflicts with the father’s ideas. Sometimes
the parents’ ideas conflict with a state agency’s
ideas. In such cases, the law requires that the
court listen to everyone, but decide the case
based on what is best for the child. In some
cases, what is best for the child will not be
what any of the other people in the court
proceeding are asking for.
The law in New York is that visitation with
an incarcerated parent is presumed (does not
have to proved) to be in the child’s best
interest, and there must be a full inquiry,
usually a fact finding hearing, before a parent’s
right to visit with his or her child is denied. A
parent’s right to visit with his or her child can
only be denied where there is substantial
evidence that it would be harmful to the
child’s welfare. Substantial evidence is
defined as: evidence upon which a reasonable
person would rely in serious affairs.

Where have courts found visitation
not to be in the best interests of the
child?

In Davis v. Davis, 697 N.Y.S.2d 155 (2nd
Dept. 1999), the court found that it would not
be in a child’s best interest to visit with an
inmate-parent where the parent had committed
a violent crime against the child or the child’s
other parent. And in Ellett v. Ellett, 698
N.Y.S.2d 740 (3rd Dept. 1999), the court held
while it would be in the best interests of a
seven year old to visit his father in prison twice
a year, it would not be in the interests of a five
year old to visit his father where he would
have to travel ten hours by car. In reaching
this result, the court noted that the older child
had a relationship with his father while the
younger child was five months old at the time
Page 17

that his father went to prison. The court did
however, order that both children should have
telephone calls with their father twice a month.

What will the courts look at when
they decide what is in my child’s best
interest?
The court in Kenneth G. v. Arcelis A.
suggested that the following factors are
relevant:
• the age of the child;
• the distance to be traveled and the
hardship that the travel imposes on a child;
• whether the visit will be supervised;
• who will transport the child and by what
means;
• the physical and emotional effect of
visitation on the child;
• whether the parent who is in prison has
and shows a genuine interest in the child;
and
• whether the parent in prison has
maintained reasonable contact in the past.
In Kenneth G. v. Aricelis A., the court
found that Kendolyn would at some point have

to face the fact that her father is a felon
serving a very long prison sentence. The court
credited Kenneth G.’s statement that he had a
real interest in his daughter and Arcelis A’s
testimony that she feared Kenneth but was
committed to helping Kendolyn understand her
father’s identity and build a relationship with
him. To help with Arcelis’s fear, the court
ordered supervised visitation. Because of the
time and expense involved in traveling, the
court ordered one to two visits a year, to be
paid for by Kenneth G., and, to increase
contact between father and child, two phone
calls a month. Recognizing that federal
inmates can be transferred to prisons all over

Page 18

the country, the court ruled that if Kenneth G.
was transferred to a prison more than 130
miles from New York City, the visits would
cease.

Court Overturns TAC Decision
Seven N.Y.C.R.R. §261.4 provides that an
inmate is entitled to a hearing before the Time
Allowance Committee (TAC) when the TAC
is considering taking away good time beyond
that which was recommended as a result of
prison disciplinary hearings. Like decisions
made by the Board of Parole, decisions made
by the Time Allowance Committee will only be
reversed when they are not made in
accordance with law. See Corrections Law
§803(4); Matter of Staples v. Goord, 695
N.Y.S.2d 190 (3rd Dept. 1999). In Matter of
Feliciano v. Napoli, unpublished, Index No.
2007-1682 (Sup. Ct. Chemung Co. Oct. 15,
2007), the petitioner alleged that his TAC
hearing – following which he was deprived on
one month of good time for failure to program
– had lasted only “25 seconds,” and that he
had not been allowed to testify. The court
noted that 7 N.Y.C.R.R. §262.4(f) and (g)
require that at a TAC hearing, the committee
interview the inmate, and, after informing him
or her of the circumstances that appear to
support a withholding of time, “afford him
the opportunity to comment thereon and to
make any statement that he may care to
submit.” The court found that where the
respondent did not submit any proof to refute
(counter) the petitioner’s claim that the entire
hearing lasted only 25 seconds, and that he
was not permitted to speak, it was required to
accept these facts as true. The court then held
that assuming the truth of the facts alleged by
the petitioner, it cannot be said that the
determination was made in accordance with
the law.

Vol. 18, No. 1 Winter 2008

As with court ordered reversals of Parole
Board decisions, the only remedy that the
court can give an inmate whose TAC decision
was not made in accordance with the law is a
new hearing. In this case, the court ordered
that the TAC either conduct a new hearing, or
only deprive Mr. Feliciano of the good time
that hearing officers at Tier III hearings had
recommended he lose.

Federal Cases

HIV Class Action Settled
The Prisoners’ Rights Project of The Legal
Aid Society has settled a class action brought
in 1990 on behalf of all New York State
prisoners with HIV. The case is Inmates of
New York State with HIV v. Pataki, et al.,
90-CV-00252. After many years of litigation
and about two years of negotiation, a private
settlement agreement was signed in January
2007. On August 28, 2007, Judge Gary L.
Sharpe of the U.S. District Court for the
Northern District of New York held a fairness
hearing, pursuant to Rule 23(e) of the Federal
Rules of Civil Procedure, and approved the
agreement. Under the terms of the settlement,
NYS DOCS has agreed to specific criteria
(standards) for referral of HIV infected
prisoners to HIV Specialists and to standards
for credentialing HIV Specialists (a process
that ensures medical care providers who treat
inmates with HIV have certain training and
experience).
Other provisions include:
mandatory HIV-related training for health care
providers; notification to patients of their
laboratory results; and implementation of a
quality assurance program to monitor HIVrelated care and treatment. There is also a

Vol. 18, No. 1 Winter 2008

process established that requires DOCS to
respond to complaints submitted on behalf of
class members by attorneys for the class. The
settlement agreement will be in effect until
January 18, 2009. If you are experiencing
problems with HIV care or if you want to have
more information about the settlement, you
may contact Milton Zelermyer, Staff Attorney,
The Legal Aid Society, Prisoners’ Rights
Project, 199 Water Street, 6th Floor, New
York, NY 10038.

Two Provisions of Article 10 of
the MHL Are Unconstitutional
In Mental Hygiene Legal Services v.
Spitzer, 2007 WL 4115936 (S.D.N.Y. Nov.
16, 2007), the court found that two provisions
of Article 10 of the Mental Hygiene Law – the
law that permits DOCS to start a legal process
to confine an inmate in a psychiatric facility
when he is released from prison – deprives
inmates of their liberty without due process of
law, a Fourteenth Amendment claim. The
procedures for finding that an inmate requires
civil management are set forth in Article 10.
(See article on page 6 of this issue of Pro Se
for a step-by-step description of the Article 10
procedures).
Here, the court found the following two
sections unconstitutional:
S e ct io n 10. 06(k) requir e s
involuntary civil detention pending the
commitment trial (Step 3 of the civil
management process) based on a finding
at a probable cause hearing (Step 2 of
the civil management process). The
court found that because some of the
people subject to the provision will need
civil management but not civil
confinement, not all of the individuals
with respect to whom a probable cause

Page 19

finding is made are dangerous. The
court held that without a finding of
current dangerousness, it would be
unconstitutional to detain an inmate
with respect to whom a finding of
probable cause had been made. The
court issued a preliminary injunction
prohibiting detention pending trial
absent a specific individualized finding
of probable cause to believe that a
person is sufficiently dangerous to
require confinement and that lesser
conditions of supervision will not
suffice to protect the public during the
pendency of the proceedings.
Section 10.07(d) permits the civil
commitment of a person found
incompetent to stand trial who was not
convicted of any offense if the court
finds, by clear and convincing evidence,
that he or she committed a sexual
offense. The court found this provision
to be unconstitutional because it allows
the state, after the commitment trial
(Step 3) to detain a person with respect
to whom there has not been a finding,
beyond a reasonable doubt, that he or
she committed the acts that constituted
the crime with which he or she was
charged.
The court found that §10.05(f), which
permits the Attorney General to issue a
securing petition to detain certain inmates
beyond their max dates prior to holding a
probable cause hearing (Step 2 of the civil
management procedures); §10.07©, which
gives authority to the fact finder (a judge or
jury) to make a retroactive determination by
clear and convincing evidence, that certain
non-sex crimes were committed with a sexual
motivation (the reason behind the conduct)
and §10.05(e), which permits the psychiatric
examinations during Step 1 of the civil

class, the relief granted by the court is
Page 20

management procedures to take place prior to
the assignment of counsel, were not
unconstitutional.
Practice Pointer: A preliminary injunction
is a form of “extraordinary relief.” It is a
pre-trial order prohibiting the defendant
from doing something that the court finds,
based on the evidence before it, is legally
wrongful. To get a preliminary injunction,
the plaintiff must show a strong likelihood of
success on the merits and that irreparable
harm (harm that cannot be fixed) will result
if the defendant is not ordered to stop the
unlawful conduct.

Class Certified in Challenge to
Parole Denials for A-1 Felony
Offenders And Defendants’
Motion To Dismiss Denied
In Graziano v. Pataki, et al., the plaintiffs,
inmates who were convicted of A-1 violent
felonies, allege that the defendants, including
the former Governor and former Chairman of
the Board of Parole, in violation of the United
States Constitution, did away with or reduced
the Parole Board’s discretion when making
parole release decisions for A-1 violent felony
offenders. On December 5, 2007, the court
denied the defendants’ motion to dismiss the
case, and granted the plaintiffs’ motion for
class certification.

Class Certification
When a group of plaintiffs is too numerous
for each of its members to be named as
individual plaintiffs, the law provides that the
court, if certain requirements are met, can
allow the named plaintiffs to represent (act on
behalf of) themselves and the other members
of the class. If the court agrees that the named
plaintiffs can represent the interests of the

Vol. 18, No. 1 Winter 2008

granted as to each of the members. Here,
the eight named plaintiffs, each of whom was
convicted of an A-1 violent felony, had been
denied parole release because of the
seriousness of their offenses, and, with the
exception of one plaintiff, had been sentenced
to less than the statutory maximum, asked for
class certification of a class consisting of all
inmates who met this criteria.
According to Rule 23 of the Federal Rules
of Civil Procedure, class certification in federal
court is proper where:
1. NUMEROSITY: the members
of the class are so numerous that
joining (naming) all of them as plaintiffs
is not practicable (can not reasonably
be done),
2. COMMONALITY: there are
questions of law or fact common to the
class,
3. TYPICALITY: the claims of
the named plaintiffs are typical of the
claims of the other class members,
4. A D E Q U A C Y
OF
REPRESENTATION:
the named
plaintiffs will fairly and adequately
protect the interests of the class.
The court found that 540 inmates met the
class definition, including 441 of which had
been sentenced to less than the statutory
maximum for an A-1 felony and concluded
that the numerosity requirement was met. The
court also concluded that the members of the
class have in common questions of law and
fact, including whether the Parole Board’s
discretion when making parole release
determinations was unlawfully curtailed
(restricted), and if so, whether the practice
violated the class members’ rights under the
Constitution.
The court also reviewed
information prepared by the plaintiffs and
agreed that the proposed class members had
all been denied release based on the nature of

Vol. 18, No. 1 Winter 2008

practice of the Parole Board that the plaintiffs

their offense; thus, the court ruled, the
typicality requirement had been met.
Finally, the Court noted that Rule 23 has a
fifth requirement: The party opposing the class
must have acted on grounds generally
applicable to the class, thereby making
appropriate final relief to the class as a whole.
Here the court said, the defendants are alleged
to have carried out a policy of denial of parole
release to the class of A-1 violent felons as a
whole. Assuming that the allegations in the
complaint are true, final injunctive or
declaratory relief preventing the defendants
from continuing this policy would be
appropriate. Having shown that they met the
Rule 23 requirements, the court granted the
plaintiffs’ motion to certify a class.

Defendants’ Motion to Dismiss
The defendants asked the court to find that
because Defendants Pataki and Dennison, who
were but are no longer, respectively, the
Governor and Chairman of the Parole Board,
had been sued only in their official capacities,
the case is moot. Official capacity lawsuits
seek injunctive relief, an order to do or
refrain from doing certain actions. Personal
capacity lawsuits seek money damages from
the defendants. The court noted that a case is
moot when the problem sought to be fixed no
longer exists, and there is no reasonable
expectation that the problem will arise again.
Here, the court stated, the plaintiffs allege that
it is the unofficial policy or practice of the
Parole Board, as instigated (set in motion) by
then Governor Pataki, and executed by the
Division of Parole under Chairman Dennison,
to unlawfully do away with or reduce the
Parole Board’s discretion (judgment) when
making parole release decision for prisoners
serving sentences for A-1 violent felonies.
Thus, the court concluded, the change in office
does not necessarily mean that the policy or

Page 21

seek to have remedied (fixed) has ceased or
that there is no reasonable expectation that the
wrong will be repeated. For this reason, the
court denied the motion to dismiss.

Pro Se Practice
LEGAL BASICS:
FEDERAL RIGHTS AND
FEDERAL COURTS
While convicted felons are serving their
sentences in state prison, they lose many of the
legal rights that they had on the street.
However, as Justice Brennan said in Wolff v
McDonnell, a case discussing the rights that
prisoners have before they can be put in
disciplinary special housing, “prisoners do not
shed all constitutional rights at the prison
gate.” Wolff, 418 U.S. 539 (1974). In New
York, among the rights lost by prisoners are,
the right to vote, the right of free association,
and the right to be free from unreasonable
searches and seizures. In addition, there are
some rights, such as freedom of expression
and access to courts, which, though not
completely lost, can be restricted, if the
limitation is reasonably related to valid
penological (relating to the field of
corrections) goals. Nonetheless, as noted by
Justice Brennan, prisoners retain some of their
rights, including the right to assigned counsel
in criminal cases, the rights of disabled
prisoners to be reasonably accommodated, and
the right to only have their religious freedoms
restricted for compelling reasons, and then
only in the least restrictive manner. Finally,

prisoners, actually have some rights that nonprisoners do not have, such as the right to
treatment for serious medical and mental
health needs. This article is an introduction to
Page 22
Vol. 18, No. 1 Winter 2008

the federal rights that prisoners retain or are
accorded by statute and/or constitution, the
federal court options that prisoners have when
their federal rights are violated, and the courts
that are responsible for enforcing these rights.
In addition, as part of our commitment to
teaching prisoners new to the study of law
some of the legal basics, included in this article
are instructions for reading a case citation.

An Overview of Federal Rights
For the most part, in the context of
prisoners’ rights litigation, the federal courts
decide cases involving claims that DOCS’
employees violated a prisoner’s civil rights
(rights protected by the United States
Constitution) or rights created by federal
statutes. Typically, prisoners bring cases
alleging the violation of the following rights:

Guarantees the Right to Petition the
Government
The right of access to the courts comes
from the First Amendment’s right to petition
the Government for redress of grievances.
Accordingly, the Constitution guarantees that
prisoners, like all citizens, have a reasonably
adequate opportunity to raise constitutional
claims before impartial judges. Lewis v.
Casey, 518 U.S. 343 (1996). However, the
Department of Correctional Services (DOCS)
can place reasonable restrictions on the
exercise of this right, assuming that the
restrictions are reasonably related to valid
penological purposes, such as safety and
security.
8th Amendment – Prohibits Cruel and
Unusual Punishment
The Eighth Amendment’s ban on cruel and
unusual punishment prohibits:

The United States Constitution
1st Amendment – Guarantees the Right of
Freedom of Speech and Religion
According to Turner v. Safley, 482 U.S.
78 (1987), prisoners retain the rights to
freedom of speech and religion, but these
rights can be limited by valid security
concerns. This limitation also applies to the
reading material, such as books and
magazines, that prisoners are permitted to
receive and possess. The right of freedom of
religion has broader protection than the right
of freedom of speech due to a Federal Statute
known as the Religious Land Use and
Institutionalized Persons Act (RLUIPA). This
is explained more fully later in this article.

• force which is malicious and sadistic,
and used solely for the purpose of
causing harm. Hudson v. McMillian,
503 U.S. 1 (1992);
• deliberate indifference to serious
medical– including dental and mental
health – needs. Estelle v. Gamble, 429
U.S. 97 (1976);
• deprivation of basic human needs or
the minimal civilized measure of life’s
necessities, Rhodes v. Chapman, 452
U.S. 337 (1981), in the absence of a
valid penological justification for the
deprivation, Trammel v. Keane, 338
F.3d 115 (2d Cir. 2003); and

• deliberate indifference to the need to
protect a prisoner from assault by other
prisoners. Snyder v. Dylog, 188 F.3d 51
(2d Cir. 1999).
Page 23

Vol. 18, No. 1 Winter 2008

14th Amendment – Protects prisoners from
the deprivation of liberty without due process
of law
In Wolff v. McDonnell, 418 U.S. 539
(1974), the United States Supreme Court held
that prisoners have a 14th Amendment Right
not to have their liberty further restricted
without due process of law. That case
established the minimum rights that prisoners
have at prison disciplinary hearings. Twenty
years later, in Sandin v. O’Conner, 515 U.S.
472 (1995), the Court limited its recognition
of a liberty interest to those conditions of
confinement that impose atypical (unusual)
and significant hardship in relation to the
ordinary incidents of prison life. In New York
State, the courts have held that 305 or more
days of confinement to disciplinary special
housing satisfies the Sandin test. To determine
whether confinement to disciplinary special
housing of between 101 and 304 days is a
deprivation of liberty, requires evidence of the
conditions and their impact on the plaintiff.

Federal Laws Conferring
Affecting Prisoners’ Rights

and

The Americans with Disabilities Act (ADA)
The ADA provides that no qualified
individual with a disability shall, by reason of
such disability, be excluded from participation
in or be denied the benefits of the services,
programs, or activities of a public entity, or be
subjected to discrimination by any such entity.
According to U.S. v. Georgia, 546 U.S.
151 (2006), the ADA prohibits a “somewhat
broader” range of conduct than the
Constitution itself forbids.

Religious Land Use and Institutionalized
Persons Act (RLUIPA)
The RLUIPA provides that no government
shall impose a substantial burden on the
religious exercise of a person residing in or
confined to an institution that receives federal
funds, unless the burden is absolutely
necessary to meet a compelling government
purpose.
This statute protects a broader range of
religious conduct than does the First
Amendment. The statute does not permit
DOCS to impose “a substantial burden” on a
person’s religious exercise unless it is
“absolutely necessary” to meet a “compelling”
government purpose. The First Amendment
permits DOCS to burden the free exercise of
religion based on valid penological interests.

The Civil Rights Act
Forty-two United States Code §1983
(often referred to as 42 U.S.C. §1983 or
simply §1983), known as the Civil Rights Act,
permits individuals, including prisoners, whose
civil rights have been violated by people
acting under color of state law (in a prison
setting, typically correctional staff who engage
in the allegedly unconstitutional conduct while
at work), to sue for damages (money),
declaratory (a decision finding that a practice
or action is unlawful) and injunctive relief.
“Damages” is money to compensate (repay)
the victim of unconstitutional conduct for what
s/he lost. Declaratory relief is a finding that a
practice or action violated the victim’s
constitutional rights. Injunctive relief is an
order telling a party to do or not to do
something and is typically only granted after a

hearing where both parties have had an
opportunity to present testimony and legal
arguments.

Appeals that hears appeals from cases filed in
the district courts in New York is the Second
Circuit Court of Appeals. The Second Circuit
also hears appeals from the district courts in
Connecticut and Vermont.

Page 24
Vol. 18, No. 1 Winter 2008

The Prison Litigation Reform Act
(PLRA)
Passed in 1996, and amending various
sections of the United States Code, the PLRA
restricts and discourages litigation by
prisoners. Among other rules, the PLRA
1) requires that prior to filing federal litigation,
prisoners exhaust their administrative
remedies, 2) limits awards of compensatory
damages to situations where there are physical
injuries and 3) allows a judge to deny future
filings where he or she finds that a prisoner has
filed three frivolous lawsuits. The PLRA also
severely restricts injunctive relief in class
actions.

Prisoners have a right to appeal district
court decisions relating to Section 1983, ADA,
and RLUIPA actions to the Second Circuit.
Unless the district court issues a Certificate of
Appealability (COA) at the time that it denies
a petition for a writ of habeas, prisoners must
get permission from the Second Circuit to file
an appeal from a denial of a petition for habeas
relief.
The United States Supreme Court hears
appeals from decisions made by the federal
Courts of Appeal and from some decisions
issued by the state courts. There is no right to
appeal to the Supreme Court. The party who
wants to appeal must petition the court to hear
his or her appeal.

The Structure of the Federal Courts
The Life of a Federal Case
There are three levels of federal courts: the
District Court, the Court of Appeals, and the
United States Supreme Court. Federal actions
are started in the district courts by filing a
complaint or, in the case of an action for
habeas relief, a petition. There are four district
courts in New York, the Northern District, the
Southern District, the Eastern District and the
Western District. Each district court hears
cases that arise within a specific geographic
area. PLS publishes an address packet that
gives the address of each of the district courts
and describes the geographic area from which
the court accepts cases.
Like the district courts, each Federal Court
of Appeals handles appeals from cases that
were decided by the district courts within a
specific geographic area. The Court of

Filing and Service
A Section 1983 federal case begins with
the filing of a summons and complaint in the
District Court. After a case is filed, it must be
served on the defendants. Rule 4 of the
Federal Rules of Civil Procedure (FRCP)
explains how to serve the defendants. Rule 12
of the FRCP provides that the defendants have
20 days from the date that they are served with
the summons and complaint to file their
answers. They can request additional time to
answer from the court.
Where the plaintiff is seeking relief from
the defendants under §1983, RLUIPA, or the
ADA, the action is known as a plenary action.

Unless the action is dismissed or the parties
settle, a plenary action is one in which a full
trial is held on the merits of a complaint
following full discovery. With the exception
of Petitions for Writs of Habeas Corpus, the
actions that prisoners typically file in federal
court are plenary actions. The following
stages describe the life of a federal case filed
pursuant to one of these three statutes.

Other forms of discovery include
Interrogatories (written questions posed by
one party to which the opposing party must
give written answers) and Requests for
Admissions (a series of factual statements
posed by one party that the opposing party
must admit or deny). These procedures are
described in Rules 33 and 36, respectively, of
the FRCP.

Vol. 18, No. 1 Winter 2008

Page 25

Pre-Trial Discovery

Dispositive Motions

Once the defendants have answered,
discovery begins. This is the period during
which the parties (the plaintiff and the
defendants) ask each other for materials
relating to the claims and defenses raised by
the Complaint and Answer. Rules 26 through
37 of the FRCP describe the discovery
process. During this process, the plaintiff
seeks information in the possession of the
defendants that may be relevant to proving
his/her case at trial and also seeks information
relating to the defenses raised by the
defendants. The defendants seek information
in the possession of the plaintiff that may cast
doubt on his/her claims, and/or is supportive of
the defenses raised in the Answer.

There are two pre-trial motions that can
dispose of a case before trial. The Motion to
Dismiss is described in Rule 12 of the FRCP.
It permits a court to dismiss an action before
discovery begins where the defendant
persuades the court that even if the plaintiff is
able to prove the facts alleged in his/her
complaint, s/he will not be entitled to the relief
that s/he is seeking. One reason a case might
be dismissed is the failure to allege a federal
claim. For example, a prisoner brings a §1983
for inadequate medical care alleging that the
defendants were negligent. He does not allege
that the defendants were deliberately
indifferent to a serious medical need. Because
negligent medical care does not rise to the
level of an Eighth Amendment violation, the
defendants will move to dismiss the action.

Discovery requests for written materials
are called Requests for Production of
Documents. Rule 34 of the FRCP controls
document requests.
Rule 30 of the FRCP describes the
deposition process. At a deposition, one
party, usually through his/her lawyer,
questions the opposing party, or the opposing
party’s witness, about the events that gave rise
to the lawsuit. A deposition is a proceeding
held in front of a court reporter and the person
answering the questions is under oath (is
sworn to tell the truth). Although no judge is
present at a deposition, it is a court
proceeding. If the parties disagree about
whether a question must be answered, the
parties or their attorneys can contact the judge
by phone.

Usually upon completion of discovery, but
sometimes at an earlier point, a party may
move for Summary Judgment. See Rule 56
of the FRCP. In making this motion, the party
states that based on the evidence submitted
with the motion, the moving party is entitled to
a judgment on the merits. The basis of the
motion is that the undisputed evidence shows
that the moving party is entitled to judgment
on the merits. The other party responds to the
motion by submitting evidence which the party
alleges shows that there are material facts
(those facts which are critical to deciding who
wins the case) in dispute. The responding
party can also assert in a cross motion that the
undisputed evidence shows that it is entitled to

summary judgment. If the court concludes
that material issues of fact are in dispute, it will
set the case for trial. If the court decides there
are no material facts in dispute, it will grant
judgment to one side or the other. The court
will grant judgment to the plaintiff if the court
determines that the plaintiff has submitted
enough evidence to show that s/he is entitled
to a judgment in his/her favor.
Page 26

Trial
The plaintiff and the defendant both have
the right to request a jury trial. Only if both
waive their right to a jury, will the case be
tried before a judge. The primary difference
between a jury trial and a bench trial is
whether a group of twelve people without
legal backgrounds, or a single person with a
legal background, determines whether the facts
show that the plaintiff is entitled to a judgment
in his/her favor. Assuming that one of the
parties requests a jury, the trial begins with
jury selection and ends with a verdict.
Following jury selection, each party has the
chance to make an opening statement. An
opening statement gives each party the chance
to tell the jury its theory of the case and what
evidence it will produce in support of its
theory.
After the opening statements, the plaintiff
puts on evidence to prove its claim. Evidence
is introduced through witnesses and comes in
the form of testimony, records, photographs,
etc. After the plaintiff has called all of its
witnesses, the judge decides whether the
plaintiff has made a prima facie case (has
produced enough proof that the jury could
issue a verdict in its favor). If the plaintiff has
not produced enough evidence, the judge will
dismiss the case. If the plaintiff has produced
enough evidence, the defendant is given the
opportunity to put on a defense. Defense
evidence is introduced by the same process as
the plaintiff’s evidence.
After the defense rests (finishes putting on

its case), the parties make closing arguments,
following which the court instructs the jury on
the law, and the jury leaves the court room to
deliberate. The result of the jury’s deliberation
is its verdict.
Petition for a Writ of Habeas Corpus
A petition for a writ of habeas corpus is an
action seeking release from prison or jail. A
Vol. 18, No. 1 Winter 2008

habeas corpus action is a summary action.
Unlike a plenary action, a summary action
generally does not involve pre-trial discovery
or a trial. Rather, a summary action is decided
on the papers that the parties submit to the
court.
The party who brings the summary case is
called the petitioner. S/he starts the action by
filing a petition. Attached to the petition are
exhibits that the petitioner alleges show that
s/he is entitled to the relief that s/he seeks.
Filed with the Petition is a brief (a written
legal argument) that explains why the
petitioner is entitled to the relief that s/he is
requesting.
The person against whom the petition is
filed is called the respondent. Instead of filing
an Answer, the respondent files a Response.
Attached to the response are the documents
that the respondent claims show that the
petitioner is not entitled to the relief s/he
seeks. The respondent also submits a brief
that explains why the court should not grant
the relief requested by the petitioner.
Usually the court decides a summary case
“on the papers.” The court may schedule oral
argument.

Reading Federal Case Citations
Court decisions are published in bound
volumes called reporters. Generally, reporters
are identified by the court that issued the

decisions that are published in the reporter.
For instance, decisions made by the United
States Supreme Court are published by the
U.S. Government in the United States Reports
(abbreviated U.S.). There are two parallel or
“unofficial” citations for Supreme Court cases,
those published by West, in the Supreme Court
Reporter (abbreviated S.Ct.) and those
published by LexisNexis, the United States
Supreme Court Reports, Lawyer’s Edition
(abbreviated L.Ed.) Some reporters publish
only the decisions issued by a certain group of
courts. For example, the Federal Reporter,
Vol. 18, No. 1 Winter 2008

only publishes decisions made by the federal
courts of appeal. The reporter that publishes
decisions made by the federal district courts is
called the Federal Supplement.
There are 999 volumes in each series of
reporters. Decisions are published in the order
that they are issued. Thus, a decision
published in volume 1 of a reporter was issued
earlier than a decision published in volume 50.
The volume number is the first number in a
case cite. Following the volume number is the
abbreviation of the Reporter, which is
followed by the page number of the volume.
Here is a break down of the most commonly
used federal citation formats.
Example of a decision from the United
States Supreme Court which was published in
the United States Reporter and the Supreme
Court Reporter:
Wolff v. McDonnell, 418 U.S. 539, 94
S.Ct. 2963 (1974).
This is a citation to a decision in the appeal
in a case involving the parties Wolff and
McDonnell; the portion of the case citation
that is underlined names the parties. The party
who petitioned the Supreme Court to take the
appeal was Wolff, which is why that name is
first. Charles McDonnell was the prisonerplaintiff who filed the case.
The year that the decision was issued by
the court is in parentheses at the end of the
citation. In this case, the court issued the
decision in 1974.

The portion of the citation immediately
following the parties is the official case
citation – 418 U.S. 539. The first number is
the volume, the letters tell you the reporter –
here the reporter is United States Reporter –
and the number following the Reporter is the
page number of the volume on which the
decision begins. Thus, 418 U.S. 539 means
that you can find the Supreme Court’s decision
in Wolff v. McDonnell on page 539 of volume
418 of series one of the United States
Reporter.
Page 27

The unofficial case citation is 94 S.Ct.
2963. The reporter is the Supreme Court
Reporter, and the decision in Wolff v.
McDonnell begins on page 2963 of volume 94
of the Supreme Court Reporter.
Until you know whether the law library to
which you are sending your request for a copy
of a case decision has the official or the
unofficial reporters, if you know both
citations, you should send both. If you only
know one, use the one you have. Law
librarians know how to convert from the
official to unofficial citations.
The Federal Reporter, in which the
decisions of the federal courts of appeal are
published, is abbreviated by the letter “F.” For
example, 1 F. 14 (1880) is the case cite for
Micon v. Lamar, an appeal from a decision of
one of the federal district courts in New York
that was published in the first volume of the
first series of the Federal Reporter in 1880.
After volume 999 in the first series of
a reporter has been published, the next volume
published is volume 1, of the second series.
You can tell that a reporter is in its second
series by the identifying numeral (the number
after the reporter abbreviation). For example,
1 F.2d 24 is a case citation from volume 1 of
the second series of the Federal Reporter.
Case decisions are now being published in the
third series of the Federal Reporter. The same
system is used for all the reporters in which
court decisions are published.

Examples:
2 F.Supp. 4 is a citation to page 4 of
volume 2 of the first series of Federal
Supplement Reporter (the reporter that
publishes federal district court opinions)
126 F.Supp.2d 95 is a citation to page 95
of volume 126 of the second series of the
Federal Supplement Reporter.

When you write briefs and memoranda of
law, you use case citations to direct the court
to earlier decisions that you think would be
helpful to the court in deciding your case.
We hope that this introduction to federal
rights, federal courts and case citations will be
helpful to you in researching the law, reading
cases, reading Pro Se, and representing
yourself in court should you ever need to do
so.

A case citation gives you valuable
information about the decision to which it
refers. You can determine the court that
issued the decision, when the decision was
issued, the names of the parties, and whether
the decision is from a trial court or an
appellate court. In addition, using the case
citation, you can find out whether other
decisions, issued in the years since the case
was issued, have cited to the decision.
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website at: www.plsny.org.

Pro Se is printed and distributed free through grants from the New York State Bar
Foundation and the Tompkins County Bar Association.