APPELLATE DIVISION REVERSES AND EXPUNGES PRISON DISCIPLINARY HEARING HELD IN PETITIONER’S ABSENCE
Our client was charged with misbehavior. At the start of his disciplinary hearing on January 8th, the hearing officer stated he was going to test the tape recorder. When the recording resumed, it was January 9th and the hearing officer was present with the counsellor who allegedly observed the misbehavior, but our client was not present. The hearing officer stated on the record that our client had refused to attend the hearing. The only indication that our client had refused to attend was a form signed by the Hearing Officer and an employee witness attesting to our client’s alleged refusal. Our client asserted that he did not refuse to attend the hearing, but that after he was told to get ready for the hearing, no staff ever came to escort him to the hearing. At the conclusion of the hearing, our client was found guilty of all charges, and received a penalty including 315 days in solitary confinement and six months recommended loss of good time.
PLS challenged this hearing, as well as another, via an Article 78 where we argued, with respect to this hearing, that our client was denied his right to attend his hearing. On March 2, 2017, the Appellate Division, Third Department issued a decision reversing and expunging the hearing. The court held that there was no evidence in the record to support the conclusion that our client knowingly, voluntarily or intelligently waived his fundamental constitutional right to attend his hearing. The court stated: “Although the form includes instructions to inform an inmate about the nature of the hearing, the charges against him or her and the fact that the hearing will be conducted in the refusing inmate’s absence, the record reflects no information regarding the steps taken to ascertain the legitimacy of petitioner’s refusal or to inform him of his right to attend the hearing and the consequences of his failure to do so.” Wilson v. Annucci, #523541 (3d Dep’t) (March 2, 2017).
COURT ORDERS EXPUNGEMENT OF DISCIPLINARY CHARGES DUE TO INADEQUATE EMPLOYEE ASSISTANCE AND WRONGFUL DENIAL OF WITNESS
Our client was charged with turning off the bars and pushing an officer in the chest. Our client described the incident differently stating that while standing against the cell bars he heard an officer smack a prisoner standing next to him and when he turned to see what was going on, he was pummelled. He asserts that he fell to the floor, where he continued to be assaulted by multiple officers. A CT-scan taken several weeks later showed a fracture of the eye orbit with herniation of fat through the fracture.
At his hearing, our client asserted that he had not received adequate employee assistance. Among other things, he indicated he had asked his assistant to interview all of the inmates on a certain tier so he could determine who had witnessed the incident for which he was charged and select relevant witnesses. The assistant randomly selected six prisoners; five of the six refused to testify and one provided a written statement that he observed an officer push a prisoner. Our client also called another prisoner as a witness at his hearing, but the hearing officer stated that at the time of the incident the witness was restrained face down on the floor, and therefore could not have observed petitioner’s incident. Our client was found guilty of all of the charges against him and received a penalty including 270 days in solitary confinement and six months recommended loss of good time.
PLS sued alleging that our client’s right to employee assistance was violated by the refusal of the assistant to interview all the requested witnesses so our client could select relevant witnesses. PLS also argued that the hearing officer’s decision to deny the requested witness, who was at the scene of the incident, was an improper violation of the right to call witnesses, since there was nothing in the record to support the hearing officer’s conclusion that the witness could not have observed the incident.
By the time the case was argued in court, DOCCS conceded that our client’s rights to call a witness and to assistance may have been violated, and so they focused their argument on the remedy, urging the court to order a new hearing rather than expungement of the charges.
On February 9, 2017, the Appellate Division, Third Department issued a decision in the case holding that our client was prejudiced by the assistant’s failure to interview the requested witnesses and that the Hearing Officer erred in denying the requested witness based on his own speculation regarding the content of the witness’s testimony. The court then addressed the issue of remedy holding that, in this case, expungement of the charges was the proper remedy. Matter of Nance v. Annucci, #523293 (3d Dep’t Feb. 9, 2017)
PLS' PRO BONO COUNSEL OBTAINS REVERSAL OF DISCIPLINARY HEARING AND EXPUNGEMENT OF CHARGES DUE TO LACK OF SUBSTANTIAL EVIDENCE
Our client received a Tier III ticket charging him with smuggling, contraband, and altered items. The misbehavior report alleged that a C.O. received information about the existence of contraband in a hollow beam on the outside wall separating two cells, one of which belonged to our client. Upon further investigation, the C.O. uncovered a cell phone, SIM card, and battery. Our client was housed on an honor block that was open throughout the day, and accessible to prisoners both from his own housing unit, as well as those from other units. Additionally, the hollow beam in which the cell phone was found was accessible from within and outside of the cell, regardless of whether the cell door was closed. After a disciplinary hearing on that matter, our client received three years of SHU, with one year suspended, and three years loss of packages, commissary, phone, and good time.
PLS filed an Article 78 and the case was transferred to the Appellate Division, Third Department because it raised an issue of substantial evidence. PLS was then was able, through our Pro Bono Partnership Project, to refer the case to William Hurst of Greenberg Traurig for preparation of the appellate brief and oral arguments.
On December 1, 2016, the Appellate Division, Third Department unanimously annulled the disciplinary hearing determination finding that the disposition was not supported by substantial evidence, as there was a lack of proof tying the contraband specifically to Mr. Derti. Matter of Derti v. Annucci, (Index No. 3149-15) (3d Dep’t 2016) William Hurst, Pro Bono Attorney.
PLS PREVAILS IN COURT OF APPEALS – COURT HOLDS ALLEGED WITNESS COERCION REQUIRES
MEANINGFUL INQUIRY BY HEARING OFFICER
PLS’ client was charged with misbehavior related to drugs, found guilty and given 12 months in solitary confinement together with loss of packages, commissary and phone privileges. His hearing was reversed for procedural errors and, at a rehearing eight (8) of his requested witnesses refused to testify. PLS sued to have the second hearing reversed for two reasons: first, because three of refusal forms had no reasons for the refusals to testify, simply stating the individuals did not want to testify; and, second, because one witness, who had stated by affidavit that he refused to testify at the first hearing because he was threatened by an officer, also refused to testify at the second hearing but the hearing officer did not make a reasonable effort to determine if the witness’ refusal to testify at the rehearing was related to threats he received in connection with the first hearing.
Unsuccessful at the Supreme Court and the Appellate Division, Third Department, PLS filed a motion for leave to appeal to the Court of Appeals, which was granted. The Court of Appeals held that a witness’ statement that he does not want to be involved, or to testify, is a sufficient reason for a refusal. However, the court also held that a hearing officer violates an inmate’s right to call witnesses by failing to undertake a meaningful inquiry into a requested witness’s allegation that the witness was coerced into refusing to testify in a related proceeding. Since coercion was alleged here, and there was no meaningful inquiry into whether the coercion led to the refusal to testify in the hearing at issue, the Court ordered reversal and expungement of the hearing. Matter of Cortorreal v. Annucci, 28 N.Y. 3d 54 (2016,) rev’g 123 A.D. 3d 1337 (2014).
COURT OF APPEALS VICTORY – REQUEST FOR WITNESSES OR DOCUMENTS AT A DISCIPLINARY HEARING PRESERVES THAT ISSUE FOR COURT REVIEW
In 2012, Mr. Henry had a prison discipline hearing and received a penalty including two years in solitary confinement and two years recommended loss of good time. PLS filed an administrative appeal of the hearing claiming that Mr. Henry’s rights to call witnesses and present documentary evidence were violated. PLS referred the case to CUNY Main Street Legal Services and, on appeal, the Appellate Division, Third Department held that Mr. Henry had failed to preserve the issues for review. Main Street Legal Services made a motion for leave to appeal to the New York Court of Appeals and PLS filed an amicus brief in support. On October 28, 2014, the Court of Appeals granted leave to appeal.
The Court detailed the facts of the case, notably, the clarity with which Mr. Henry requested certain witnesses and documents, and the fact that the hearing officer understood what Mr. Henry requested, and denied the requests. The Court held that the issues sought to be raised in the Article 78 were preserved for review. This decision clarifies that if a prisoner’s request for documents or witnesses at a prison discipline hearing is denied, the issue is preserved for review, with no need for a specific objection to the adverse ruling. Matter of Henry v. Fischer, 28 N.Y. 3d 1135 (2016), rev’g 120 A.D. 3d 868 (2014).
EXPUNGEMENT PROPER REMEDY FOR VIOLATION OF PRISONER’S FUNDAMENTAL RIGHTS AT
At his disciplinary hearing, Mr. Medina objected to lack of adequate employee assistance. The Hearing Officer denied his objection and when Mr. Medina requested to be returned to his cell for assistance the Hearing Officer asked him if he was refusing to continue in the hearing. Mr. Medina said “yes, I need an assistant” and the Hearing Officer had him removed from the hearing.
PLS filed an Article 78 arguing that: 1) assistance was inadequate, and; 2) Mr. Medina’s right to attend the hearing was violated. The Court ruled in our favor finding that the Hearing Officer had acted arbitrarily and capriciously in denying Mr. Medina assistance and in continuing and concluding the hearing in his absence. However, rather than ordering expungement the court reversed the hearing and ordered a re-hearing. In response, PLS filed a Motion to Reargue. The Court granted our motion and issued an amended decision ordering DOCCS to expunge rather than remit Mr. Medina’s Tier III hearing. DOCCS appealed.
The Appellate Division, Fourth Department affirmed stating that, contrary to respondent’s contention, the Supreme Court had properly determined that expungement of all references to the underlying incident from petitioner’s institutional record, rather than remittal for a new hearing, was the appropriate remedy for the violation of petitioner’s fundamental rights to be present at his disciplinary hearing. Matter of Medina v. Annucci, 144 A.D. 3d 1694 (2016).
DOCCS AGREES TO REVERSE AND EXPUNGE ADMINISTRATIVE SEGREGATION DETERMINATION
PLS filed this Article 78 proceeding to challenge a hearing determination to place our client in administrative segregation. Administrative segregation is indefinite confinement in solitary confinement. In many cases involving men, a placement in administrative segregation may be a short-term placement that can be resolved by transfer to another prison where the individual can be safely returned to general population. Our client, however, was a woman at Bedford Hills, which is the only maximum security prison in the state for women. Since transfer was apparently not an option in this case, we were concerned that our client might be held in isolation until her eventual release from prison.
Our client’s administrative segregation recommendation alleged that a confidential letter, a handcuff key, and results of a confidential investigation show that our client conspired to escape from Bedford Hills. The author of the misbehaviour report, testified at the hearing, but he declined to disclose any information related to the confidential letter or the confidential investigation. He did state that the cuff key was not found with our client’s property, and was never alleged to have been in her possession. Our client also prepared a list of questions about the evidence against her but the responses to those questions were deemed confidential and were not provided to her. Our client was given no information about whom she allegedly conspired with or how the handcuff key was connected to her alleged conspiracy. She was told that staff was unaware if she knew about the cuff key. She was told that she was not the author of the confidential letter. She was told that letters were found in a Bible in her cell, but was not told whether or how the letters were related to a conspiracy to escape. She testified that she had no knowledge of a conspiracy to escape.
In the Article 78, PLS asserted that our client was deprived of her right to notice; deprived of her right to review and present documentary evidence; and, that the hearing disposition was not supported by substantial evidence. After PLS filed the Article 78 petition, DOCCS advised the Court that the hearing had been administratively reversed and expunged and our client had been released from administrative segregation. Matter of Pusepa v. Annucci, (Index No. 02505-16) (Albany Co. Sup. Ct.)
COURT FINDS DOCCS VIOLATED CELL SEARCH DIRECTIVE 4910
Our client was charged with misbehaviour based on the alleged recovery of certain items of contraband during a search of his cell. Our client was removed from his cell so that officers could search the cell and ordered to wait in the recreation yard for the duration of the search. A correction officer then covered the window between the recreation yard and the housing unit with paper, thereby obstructing our client’s view of the hallway near his cell. After the search, our client was charged with and found guilty of possessing a weapon and tampering with property, and received a penalty of 365 days in solitary confinement.
PLS filed an Article 78 arguing that DOCCS violated our client’s rights by failing to follow Directive 4910, which describes the procedures that must be followed for cell searches. The Court held that the provision in Directive 4910, that states that if a prisoner is removed from a SHU cell for the purpose of a cell search, the prisoner is to be placed in a vacant cell, or held at the end of the tier, was applicable. As such, the court held that DOCCS’ placement of Petitioner in an outdoor yard during the cell search violated Directive 4910. The Court also noted that the Directive is mandatory and that violation requires expungement. Matter of Tenney v. Annucci, (Mott, J) (Index No. 16-190) (Ulster Co. Sup. Ct.) (Aug. 9, 2016).
PLS OBTAINS REVERSAL OF GUILTY DETERMINATION FOR INMATE LIAISON COMMITTEE MEMBER WHO VOICED
CONCERN REGARDING A NEW PRISON POLICY
Our client, an Inmate Liaison Committee (ILC) representative, voiced his constituents’ concerns regarding a new facility yard policy. This policy allegedly required prisoners to sit on the ground for extended periods of time after any incident, even if the ground was wet or muddy, and even if the prisoner was disabled or elderly. Our client was told he would need to take the matter up with Deputy of Security E. Bell, the person who had promulgated the policy at issue, but was then given a misbehavior report charging him with threats and demonstration relating to his statements about the new yard policy. Our client was found guilty and given 270 days in solitary confinement. The hearing officer at his hearing was Deputy Bell.
PLS filed an Article 78 challenging the disposition based on substantial evidence and hearing officer bias. In response, the Office of Inmate Discipline/Special Housing reversed our client’s disciplinary hearing and ordered it expunged. Matter of Emerenciano v. Annucci, (Feldstein, J.) (Index No. 2016-170) (Franklin Co. Sup. Ct.)
PLS SUES AFTER STATE POLICE DRUG TESTING NEGATES DOCCS INTERNAL TESTING – DOCCS ULTIMATELY REVERSES HEARING
On his way to the yard, our client emptied his pockets onto a table for staff to examine. The material he placed on the table included two hand-rolled cigarettes. The cigarettes were referred to facility drug testing staff who performed NIK testing and determined that petitioner’s cigarettes contained morphine. Petitioner was charged with contraband and possession of a narcotic.
Subsequently, the disciplinary charges against petitioner became the basis of a new criminal prosecution for promoting prison contraband and possession of a controlled substance. Our client’s hand-rolled cigarettes were turned over to the New York State Police for more sophisticated drug testing. Using gas chromatography/ mass spectrometry, forensic scientists at the State Police detected no controlled substances in petitioner’s cigarettes. Subsequently DOCCS dismissed the drug possession charge but refused to dismiss the remaining contraband charge.
PLS filed an Article 78 challenging DOCCS’ refusal to vacate the prior disciplinary decision, as arbitrary and capricious because the highly sophisticated drug testing showed there were no contraband. After the case was transferred to the Appellate Division, Third Department DOCCS agreed to administratively reverse the hearing. Matter of Ramirez v. Annucci, (Index No. 2982-15) (Albany Co. Sup. Ct.)
PLS WINS REVERSAL OF DISCIPLINARY CHARGES WHERE HEARING OFFICER FAILED TO ADEQUATELY INVESTIGATE A WITNESS’S REFUSAL TO TESTIFY
This Article 78 challenged our client’s fourth hearing (third administratively-ordered rehearing) for an incident which occurred on April 5, 2014. Our client was sentenced to 24 months in solitary confinement for violent conduct and other charges. As he had done at each previous hearing, our client testified that he was the victim of an attack by the officer involved. PLS sued alleging, among other things, that our client’s right to call a witness was denied when the hearing officer (HO) failed to inquire into the reason for that witness’ refusal to testify.
The court concluded that our client had been denied his right to request a witness because the hearing officer failed to personally investigate the alleged witness refusal. The court granted the petition and directed the disposition be reversed and expunged from our client’s records. Matter of Williams v. Annucci, (Index No. 2015-0810) (Franklin Co. Sup. Ct.)
SECOND CIRCUIT HOLD DOCCS’ BLANKET BAN ON MOTORIZED WHEELCHAIRS VIOLATES THE ADA AND FEDERAL REHABILITATION ACT.
The case involved an appeal of a motion for summary judgment finding in favor of DOCCS’ universal ban on motorized wheelchairs in prison. PLS filed an amicus brief arguing that such a ban violated the protections of the Americans with Disabilities Act (ADA) and the Rehabilitation Act.
The Second Circuit held that the Department of Corrections’ blanket ban on motorized wheelchairs violated both the ADA and the RA and that there was a dispute of material fact as to whether DOCCS provided the plaintiff meaningful access to DOCCS’ services or would be unduly burdened by allowing Wright the use of his motorized wheelchair. The court vacated the judgment and remanded the case for further proceedings. Wright v. DOCCS, 831 F.3d 64 (2d Circuit).
LAWSUIT FILED BY PLS RESULTS IN STATEWIDE CHANGE IN DOCCS’ ‘HEPATITIS C’ TREATMENT PROTOCOL
PLS filed a federal lawsuit challenging DOCCS’ policy of denying Hepatitis C (HCV) treatment to any prisoner who has had a positive urinalysis test in the prior six months. PLS alleged that the policy was not based on current medical standards of care for patients with HCV. Our client was suffering from advanced stage liver disease from HCV, with cirrhosis of the liver and yet was being continuously denied HCV treatment due to positive urinalysis tests. After the lawsuit was filed, DOCCS agreed to settle the case by, among other things: promptly commencing HCV treatment for our client; changing DOCCS’ Hepatitis C treatment policy so that evidence of substance use is not an automatic exclusion from HCV treatment; and agreeing that all patients who otherwise qualify for HCV treatment will be seen by an infectious disease doctor regardless of drug use. Corris v. Koenigsmann, et al., (Case No. 15-cv-01205) (N.D.N.Y.)(GTS/TWD)
PLS OBTAINS CANCELLATION OF REMOVAL FOR IMMIGRANT CLIENT WITH U.S. CHILDREN AND AILING MOTHER
Our client, an immigrant, was served with a Notice to Appear in Immigration Court because he was convicted of weapon possession and was thus subjected to a removal hearing. Because our client’s conviction was not an aggravated felony, he was eligible for cancellation of removal if we could show good reason for allowing him to stay in the United States. Upon interviewing our client and his family we found numerous positive equities including the fact that he had children who are U.S. citizens, and a sick mother in the U.S. At a subsequent merits hearing, PLS was able to present compelling testimony from our client and his family members. We received a favorable decision from the Immigration Judge where the Judge cancelled removal. Mr. Jones was not deported and is now living with and supporting his family in Queens. Jones, Immigration Court, Ulster Correctional Facility, (File No. A047-114-094).
PLS PREVAILS IN CONVENTION AGAINST TORTURE CLAIM
Our client is from Burma where he was a member of the Karen ethnic minority. He was admitted to the US as a refugee in 2007. He was convicted of Assault in the 2nd degree. He never adjusted his status to become a lawful permanent resident. He feared return to Burma due to persecution of the Karen people. PLS, together with private counsel Debra Schneer, represented him in a claim challenging his removal under the Convention Against Torture (CAT), based on his well-founded fear of torture or death upon return to his country, intentionally inflicted by the government or with their acquiescence, not arising from lawful sanction. PLS won deferral of removal under CAT which means that our client will not be deported. Set Set Mu, Immigration Court, Ulster Correctional Facility, File No. A094-715-017.
COURT REVERSES GUILTY FINDING AT DISCIPLINARY HEARING DUE TO LACK OF SUBSTANTIAL EVIDENCE
Our client was accused of weapon possession, among other things. He was given a disciplinary hearing, found guilty and punished with 12 months in solitary confinement with corresponding loss of packages, recreation, commissary, and phones, and three months recommended loss of good time. At his hearing, the author of the misbehavior report testified that he relied upon confidential sources and that the weapon used in the incident was never recovered. The record of the hearing showed that the Hearing Officer (HO) failed to make the requisite independent assessment of the informants’ reliability or credibility. In the Statement of Evidence Relied Upon, the HO stated that he relied on the author of the misbehavior report’s final assessment of the confidential informants’ reliability.
PLS filed an Article 78 alleging that the determination was not supported by substantial evidence. The court agreed and issued a decision reversing the disciplinary disposition. DOCCS was ordered to expunge the matter from petitioner’s record and restore his lost good time. Matter of Bridge v. Annucci, (Index No. 5053-14) (Alb. Co. Sup. Ct.)
PLS OBTAINS 32 MONTHS OF SENTENCING CREDIT FOR CLIENT RESULTING IN HIS IMMEDIATE RELEASE
This Article 78 concerned DOCCS’ refusal to compute our client’s sentence and legal dates so as to afford him proper concurrent federal sentence credit. Our client was sentenced by both Greene County Court and the United States District Court for the Northern District of New York on charges stemming from the same conduct. Both jurisdictions expressed intent for the sentences to run concurrently. However, because our client was sentenced to his federal term three weeks after state sentencing, and sent to a federal prison, DOCCS refused to appropriately credit him with the concurrent federal sentence credit. DOCCS position was that no credit was due because our client was not received into DOCCS custody until nearly 31 months later.
In response to PLS’ Article 78, the court granted our client’s request to have his federal sentence run concurrently with his state sentence and ordered DOCCS to recalculate our client’s sentence. The recalculation resulted in 32 months of additional sentence credit for our client that made him immediately eligible for release to Post Release Supervision (PRS) and he was released within the month. Matter of Lett v. Annucci, (Index No. 0013-15) (Clinton Co. Sup. Ct.)
SECOND CIRCUIT CLARIFIES THAT A SIGNLE ACT OF SEXUAL ABUSE BY CORRECTION OFFICER MAY VIOLATE
THE EIGHTH AMENDMENT – PLS PREVAILS AS AMICUS
In this case, the district court dismissed plaintiffs'—current and former state inmates—lawsuit alleging that sexual abuse by a prison guard constituted cruel and unusual punishment violating the Eighth Amendment. The district court found the complaint failed to state a claim under Second Circuit's 1997 decision in Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997). On appeal, the plaintiffs argued the district court erred in dismissing the suit by too narrowly construing the standard established in Boddie which recognized that a single act of sexual abuse may violate the Eighth Amendment if it is entirely gratuitous and devoid of penological purposes. The Second Circuit reversed the district court's order dismissing suit and remanded the case. Clarifying Boddie, the circuit noted that a correction officer's intentional contact with an inmate's genitals or other intimate area, which serves no penological purpose and is undertaken with the intent to gratify the officer's sexual desire or to humiliate the inmate, violates the Eighth Amendment. By alleging that a correction officer fondled their genitals for personal gratification absent penological justification, plaintiffs stated a cognizable Eighth Amendment claim. The circuit also noted that the sexual abuse of prisoners offends contemporary standards of decency. Crawford and Corley v. Cuomo, et al., 796 F3d 292 (2nd Cir. 2015)
COURT REVERSES DISCIPLINARY HEARING DUE TO WRONGFUL EXCLUSION
Our client was excluded from his disciplinary hearing where he was sentenced to nine months in solitary confinement. PLS filed an Article 78 proceeding challenging the exclusion. The court held that our client had been wrongfully excluded from the hearing. Matter of Ramirez v. Annucci, (Index No. 2035-15) (Alb. Co. Sup. Ct.)
MALE CORRECTION OFFICER PUNCHES FEMALE PRISONER IN THE FACE BREAKING HER NOSE – PLS OBTAINS
PLS filed a §1983 lawsuit alleging that a male correction officer used excessive and unnecessary force against a female prisoner at Bedford Hills Correctional Facility. Our client was in a room waiting to be interviewed. She managed to do little things to aggravate the officer which escalated to her kicking toward the officer’s inner thigh where he then punched our client in the middle of her face. The entire incident was recorded on videotape. Our client sustained a broken nose as a result of being punched by the officer. After filing suit we reached a monetary settlement for our client. Seaton v. Henry, (14-CV-05971) (S.D.N.Y.)
SOLITARY CONFINEMENT PENALTY OF 18 MONTHS REVERSED ON SUBSTANTIAL EVIDENCE GROUNDS
Our client was given a misbehavior report charging him with violent conduct and assault. He was subsequently found guilty and received a penalty of 18 months in solitary confinement. The report was based on confidential information. At the hearing, the victim and three other prisoners testified that petitioner was not involved in the assault. The Hearing Officer stated that he was going to consider confidential statements in this case. However, based upon a review and assessment of the record, it appears that at no point did the Hearing Officer make the requisite independent assessment of the informant’s reliability or credibility. The Hearing Officer did not even interview the Sergeant who authored the report that relied on confidential information and it appears he did not conduct any confidential interviews of informants. Instead, at most it appears he considered a confidential report of the investigation. There was no mention in the statement of reasons or evidence relied upon of any independent assessment of the reliability and credibility of the confidential information or sources either.
Petitioner’s administrative appeal was unsuccessful in this case, as was our office’s request for reconsideration. Petitioner filed an Article 78 pro se, alleging numerous violations at the hearing, and served the respondents. Petitioner agreed to representation from our office to pursue in the Article 78 the only issue PLS believed viable: the issue of a lack of substantial evidence arising out the failure to undertake the independent assessment of the confidential sources and information.
The Court issued a decision granting the petition. The Court held that the hearing officer failed to undertake the necessary independent assessment of the confidential information, mandating annulment of the disposition and expungment from petitioner’s institutional record, including restoration of the 18 months of good time. Matter of Cooper v. Annucci, (Index No. 2360-14) (Alb. Co. Sup. Ct.)
PLS SUCCESSFUL IN ENFORCING SENTENCING CREDIT INTENDED BY PARTIES AND SENTENCING COURT.
Our client was sentenced in one county to 2½ to 5 years and 4 ½ months later our client pled guilty in a different county to other charges and received a second sentence of 2½ to 5 years to run concurrent with the first sentence. However, because of Penal Law 70.30(1)(a)(5), only the minimum term of the second sentence is credited with the time served on the first sentence. Thus, as a result of the passage of time between the imposition of the two sentences, the effect of the second sentence was to extend our client’s maximum release date by 4½ months.
PLS made an application to amend the sentence and commitment order to of the second sentence to reflect the intention of the parties and the sentencing court to impose a completely concurrent sentence. The Court then granted the application. People v. Kuras, (Ind. No. 13-13A) (Yates Co. Ct.)
PLS OBTAINS MONETARY DAMAGES FOR VICTIM FOR INJURIES CAUSED BY ALLEGED EXCESSIVE USE OF FORCE
BY A CORRECTION OFFICER
Our client was a 55-year old prisoner who was a student in an educational program and needed to use the bathroom at a time when a bathroom break was not scheduled for his class. Although he received permission from the teacher to go to the bathroom, once in the hallway, a correction officer told him to go back to the classroom and wait for the regularly scheduled break. Our client returned to the class room and talked to the teacher, following which the teacher went into the hallway and advised the correction officer that our client had her permission to use the bathroom. After the teacher returned to the classroom, the correction officer ordered our client against the wall and the correction officer then allegedly struck our client in the genitals from behind, grabbed and squeezed his testicles and struck him on the right side of his head.
As a result of alleged attack, our client suffered painful bruised and swollen testicles, a concussion and a ruptured ear drum. The correction officer claimed that our client received his injuries when he fell from a bench on which he was sitting.
PLS sued for compensatory and punitive damages. After extensive discovery, the parties engaged in settlement negotiations and ultimately settled the case for monetary damages. Gross v. Lunduski, 12-CV-1221 (W.D.N.Y.).
DOCCS AGREES TO DISMISS CHARGES AND REDUCE RESTITUTION IN SELF-HARM CASE
Our client set a fire in his cell in the Marcy Residential Mental Health Unit. He was then taken to an outside hospital where a psychiatrist determined that setting the fire was a suicide attempt. When he returned to the prison, Office of Mental Health staff concurred with the view that the fire was a suicide attempt but, nevertheless, our client was charged with violating several disciplinary rules, based on the fire including: assault on staff; violent conduct; flammable materials; and property damage. The evidence of the damage caused by the fire was that it cost $100.00 to paint the cell and that there was smoke damage to a section of the cell floor but the cost of the repair had not yet been estimated.
Our client was found guilty of all charges, and given a penalty of five months in solitary confinement with loss of privileges and five months recommended loss of good time. Restitution of 1,105.25 was also imposed. Shortly after the hearing ended the superintendent dismissed the charge of possessing flammable materials as part of a discretionary review of the hearing. PLS submitted an administrative appeal challenging the remaining charges and the penalty. In response to our appeal, DOCCS’ dismissed the charges of assault on staff and violent conduct but failed to modify the penalty. As a result our client was found guilty of only the single charge of property damage with a penalty of five months SHU, loss of privileges, and recommended loss of good time, and $1,105.25 restitution.
PLS sued alleging that the sole remaining charge of property damage was inconsistent with Corrections Law § 401(3) which establishes a presumption against punishment for acts of self-harm “or related charges for the same behaviors, such as destruction of state property.” PLS also asserted that the restitution of $1,105.25 was an abuse of discretion and arbitrary and capricious in that there was absolutely nothing in the record that provided a rational basis for that dollar amount of restitution. After briefs were filed, DOCCS agreed to settle the case reducing the restitution from $1,105.25 to $362.18, an amount which had already been collected. Our client accepted the settlement. Matter of Hohenkirk v. Annucci, (Index No.1776-14) (Alb. Co. Sup. Ct.)
DOCCS SETTLES EXCESSIVE USE OF FORCE CASE
Our client alleged he was assaulted in his cell by correction officers. During the assault, the defendants allegedly grabbed our client, shoved him in a wall, and punched, kicked and struck him with their hands. One of the defendants allegedly kicked our client in the face as he was lying on the ground. As a result of the assault, our client suffered multiple fractures, contusions, and abrasions about the head, face and body, including a blow-out fracture of the right orbit, a fracture of the ventral and lateral walls of the right maxillary sinus, and a broken nose. PLS sued seeking damages. After PLS filed suit, the parties signed a stipulation dismissing the case in exchange for a monetary settlement. Morales v. Nelan, et. al., 14-CV-6594, (W.D.N.Y.)
PLS PREVAILS IN CHALLENGING DOCCS’ USE OF WOODBOURNE PRISON AS A RESIDENTIAL TREATMENT FACILITY
PLS filed a writ of habeas corpus seeking the immediate release of our client from DOCCS custody because he was one of numerous individuals swept up in the new DOCCS approach toward sex offenders who have reached their maximum expiration date, but are unable to secure housing. The Sexual Assault Reform Act (SARA) prohibits most sex offenders from residing within a 1,000 feet of a school or other location where children frequent, and due to SARA, many sex offenders are unable to find SARA-compliant housing. Because of this, DOCCS adopted a policy to hold such individuals in so-called Residential Treatment Facilities (RTF), but in reality, the confinement was in a DOCCS prison.
After PLS sued, the Court ordered DOCCS to promptly transfer our client from the prison where he was being held (Woodbourne) to RTF-compliant housing or else release our client from custody. Shortly thereafter, in December 2014, DOCCS released our client from custody to post-release supervision (PRS) in the community. During the course of this litigation, it became apparent that it was DOCCS’ intention to confine our client in prison under professed “RTF” status for the duration of his PRS sentence (i.e. until 7-2-2019), unless ordered otherwise. Matter of Muniz v. Uhler, (Index No. 2014-0531) (Franklin Co. Sup. Ct.)
PLS PREVAILS IN CHALLENGING DOCCS’ DESIGNATION OF FISHKILL PRISON AS A RESIDENTIAL TREATMENT FACILITY
PLS filed a writ of habeas corpus petition seeking the immediate release of our client, a sex offender. The maximum expiration date of our client’s sentence was April 30, 2014, but DOCCS informed him that as a special condition of his release he would be required to participate in the programs of a residential treatment facility while serving his period of post release supervision. Despite the alleged “release” to a residential treatment facility, our client remained incarcerated at Fishkill Correctional Facility where he was treated the same as a sentenced prisoner.
DOCCS has authority to place offenders in residential treatment facilities. The definition of a residential treatment facility is in Corrections Law §2(6), and further provisions on the operation of residential treatment facilities is in Correction Law §73. According to Correction Law §2(6) a residential treatment facility is a correctional facility, “consisting of a community based residence in or near a community where employment, educational and training opportunities are readily available” for people who are or who will soon be eligible for release to community supervision, and “who intend to reside in or near that community when released.”
The definition in Correction Law §2(6) implies, and the additional provisions in Correction Law §73 make reasonably explicit, that a key component of a residential treatment facility is that individuals held there are able to leave the facility to participate in rehabilitative programs in the surrounding community, which should be near where the individual intends to reside after release. PLS argued that Fishkill was not a residential treatment facility because it did not comply with the statutory provisions that define and describe residential treatment facilities. Without disputing any of our factual assertions, DOCCS simply asserted that Fishkill was a residential treatment facility because it had been so designated.
The court converted the habeas corpus action into an Article 78 proceeding and held an evidentiary hearing on the question of whether Fishkill met the statutory definition of a residential treatment facility. After the conclusion of the hearing, the Judge issued a decision holding that DOCCS’ efforts to make Fishkill a statutorily compliant residential treatment facility were insufficient, and no more than de minimis. The court ordered our client released to an appropriate shelter. People ex. Rel. Scarberry v. Connoly, et al., (Index No. 2014-3963) (Rosa, J.) (Dutchess Co. Sup. Ct.)
DOCCS REVERSES HEARING AFTER PLS FILES SUIT
Our client was removed from his cell so a cell search could be conducted. He received a misbehavior report alleging that when he was ordered to “lock in” to his cell he stopped and threw his adult diapers toward the officers. As a result, petitioner was charged with unhygienic act, interference, and refusing a direct order. At the hearing, our client testified that he could not return to his cell because he was confined in a wheelchair and the diapers on the floor were blocking the wheelchair. He asserted that he simply moved the diapers out of the way so that he could return to his cell and that the diapers in question were not soiled, and therefore there was no “unhygienic act.” At the hearing, when our client asked the officer who wrote the report whether he had inspected the diapers to determine whether they were soiled, the hearing officer did not permit the officer to answer, stating he assumed the officer had examined the diapers, since the report referred to the diapers as soiled. There was also evidence that a second officer was involved in the cell search, but when our client attempted to call the second officer as a witness, the officer who wrote the report could not recall his name. At the conclusion of the hearing our client was found guilty of each charge, and a penalty including 90 days of solitary confinement was imposed.
PLS sued alleging, among other things, that there was no substantial evidence of unhygienic act because there is no evidence that the diapers were soiled and that there was a violation of our client’s right to call witnesses. After PLS sued, DOCCS administratively reversed the hearing. Smith v. Annucci, (Index No. 5543-13) (Alb. Co. Sup. Ct.)
PLS OBTAINS MONETARY DAMAGES FOR CLIENT WRONGFULL HELD IN SOLITARY CONFINEMENT
The case arose from an incident that occurred in the recreation yard at Clinton Correctional Facility. There was a 20-man fight in the yard and our client received a misbehavior report which alleged his involvement. At the hearing, our client stated he was in the yard at the time of the fight, but that he had no involvement in the fight and that he lay on the ground as soon as he was ordered to do so.
The author of the misbehavior report testified that he was present and that he observed our client in the general area of the altercation, but he did not state that he personally observed our client engage in misbehavior, nor did he indicate that any other officer had observed our client engage in misbehavior. Our client was found guilty of several charges, and received a penalty including 36 months in solitary confinement and twelve months recommended loss of good time. PLS filed an Article 78, alleging that the disposition was not supported by substantial evidence. In response, DOCCS administratively reversed the hearing and released our client from solitary confinement after he had served approximately fifteen months.
PLS then sued in federal court seeking monetary damages for the time our client was forced to wrongfully serve in solitary confinement. The complaint alleged that the evidence in the hearing record did not satisfy the due process standard of “some reliable evidence” of guilt, which is needed to support a guilty disposition in a prison discipline hearing. We filed a motion for summary judgment. The court issued a decision granting our motion for summary judgment, on the ground that the evidence offered against our client did not constitute some reliable evidence of guilt. As a result, DOCCS agreed to settle for monetary damages. Whitley v. Miller, et. al., 13-cv-00418) (N.D.N.Y.)
PLS OBTAINS LANDMARK SETTLEMENT ELIMINATING 23-HOUR A DAY SOLITARY CONFINEMENT FOR JUVENILES
Our client, a 17-year-old young man, was issued a misbehavior report charging him with Violent Conduct, Assault on Staff, Interference with Employee, Refusing Direct Order, and Refuse Search Frisk. A prison disciplinary hearing was held and our client was given a four years in solitary confinement with 4 years of loss of phones, packages, commissary and good time.
PLS sued arguing that: 1) the hearing disposition was not supported by substantial evidence; 2) the officer acted arbitrarily and capriciously and abused his discretion when he failed to consider our client’s age as a mitigating factor; and 3) our client’s hearing disposition of four years confinement in solitary was harsh and excessive and a violation of the 8th amendment. We requested that the Court: 1) declare that the age of sixteen and seventeen year-old prisoners housed in New York State adult correctional facilities must be considered by Respondent as a mitigating factor in all disciplinary proceedings; 2) declare that punishing sixteen and seventeen year-olds by confining them in solitary confinement cells in New York State adult correctional facilities constitutes cruel and unusual per se, under both the Federal and New York State constitutions, or, in the alternative, declaring that punishing our client by confining him in solitary confinement constitutes cruel and unusual punishment in violation of both the Federal and New York State constitutions; and 3) order his immediate released from solitary confinement.
The Court found that there was substantial evidence of guilt; however, it also found that the disposition of four years in solitary with four years concurrent loss of privileges “is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness.” The Court considered that fact that our client was only 17 years old at the time of the incident, all of the circumstances surrounding the incident, as well as DOCCS disciplinary guidelines in reaching its decision. And, the Court modified the disposition to 18 months in solitary with concurrent loss of privileges.
Additionally, the Court found that it did not have jurisdiction to consider the declaratory judgment action and severed and remitted that portion of the case to the Supreme Court for further proceedings.
DOCCS ultimately agreed to settle the case, agreeing to:
Additionally, the State agreed to amend its regulations to: 1) provide that age is a mitigating factor in disciplinary proceedings where a juvenile has been accused of misconduct and that the hearing officer conducting a Tier III hearing shall include in the written record a statement of how the age affected the disposition (e.g., the use of non-confinement or the lowest sanction), and; 2) mandate the above mentioned confinement limits and required programming of juveniles with the goal of expediting the transition of the juvenile into general population and encouraging interaction with others.
PLS LITIGATION HIGHLIGHTS
PLS has an impressive record of administrative advocacy and litigation in the area of disciplinary hearings. This is due, in part, to the tremendous amount of experience and expertise of PLS staff who are able to screen cases for merit and present strong and cogent legal arguments in those cases involving procedural and/or substantive errors. PLS prevails in over 66% of the disciplinary cases we bring.
The importance of PLS’ work in this area cannot be overstated. One of the primary causes of the 1971 Attica uprising was the routine use of solitary confinement, otherwise known as the “hole,” the “special housing unit,” “SHU,” or “the box.” Prisoners were locked in their cells 23 to 24 hours a day and, although justified as a “disciplinary measure,” due process protections were all but non-existent and prisoners had no way to challenge sham or illegal hearings. As a result, and in response to other abuses and mistreatment, frustrations and anger grew and on September 9, 1971, the largest and most secure prison in New York State, witnessed the beginning of the bloodiest prison confrontation in U.S. history.
PLS also successfully represents incarcerated individuals on a range of other issues associated with conditions of confinement including excessive use of force, administrative segregation, medical care, disability rights, immigration, sexual abuse, jail time and sentencing and wrongful confinement. Below is a list of cases PLS successfully litigated over the past several years. For a list of all PLS cases, by subject matter, click on the subject matter link under Litigation Highlights above.