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

Supreme Court Upholds LawProtecting Inmates' Religious Freedom

The Supreme Court this term upheld anact of Congress which grants heightenedprotection to inmates' religious practices.

The decision, Cutter v. Wilkinson, 125S.Ct. 2113 (2005), upheld the constitutionalityof the Religious Land Use and InstitutionalizedPersons Act ("RLUIPA").

The RLUIPA states that there must he a"compelling" reason for any government actionwhich "substantially burdens" free exercise ofreligion, and the burden imposed must be the ."least restrictive means" by which thegovernment can meet its interest.

Ordinarily, government actions whichburden the constitutional rights of inmates willbe upheld if they are "reasonably related tolegitimate security concerns." See Turner v.Safley, 482 U.S. 78, 107 S.Ct 2254 (1987).RLUlPAthus provides greater protection for thefree exercise ofreligion than that provided to theother constitutional rights ofinmates.

The prisoner-plaintiffs in the caseincluded a Satanist, a Wiccan, followers of theAsatru religion, and members of the Church ofJesus Christ Christian.

A previous version ofthe law, known asthe Religious Freedom Restoration Act, hadbeen struck down because the Court found that

Congress had exceeded its power to pass lawseffecting the states. Specifically, the Court foundthat Congress had not adequately establishedthat inmates' religious freedom was significantlyburdened by prison administrators.

article continued on page 2...

Also Inside...

PLS Focuses onMental Health Law page 4

Appellate Court ReversesParole Board page 17

Court Clarifies Rules in"Witness Refusal" Cases ... , ... page 14

Pro Se Practice: Is A Mail WatchAuthorization Necessary toUphold a Conviction forCorrespondeuce Violations? ..... page 22

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Before passing RLUIPA, Congress heldhearings on the state of religious freedom inprison. The hearings showed many instances inwhich prison administrators imposed barriers toinmates' free exercise of religion which werefrivolous, arbitrary, or unrelated to anylegitimate governrnental interest.

The hearings showed that in Ohio, prisonadministrators refused to provide Muslims withHallal food, even though it provided Kosherfood to Jewish inmates. In Michigan, prisonofficials prohibited the lighting of Chanukahcandles, even though "smoking" and "votivecandles" were pel1l1itted. In Oklahoma, a priestresponsible for communications between RomanCatholic dioceses and corrections facilitiestestified that there "was [a] nearly yearly battleover the Catholic use of Sacramental Wine ...for the celebration of the Mass," and prisoners'religious possessions, such as the Bible, theKorall, the Talmud, or items needed by NativeAmericans, "were frequently treated withcontempt and were confiscated, damaged ordiscarded." In yet another prison, Congressfound that prison officials refused to providesack lunches to Jewish imnates to enable them tobreak their fasts after nightfall.

The Supreme Court found that RLUIPAwas constitutional, in part, because Congresshad shown the need for it. It also found that thelaw did not violate the "establishment clause",i. c., that part of the First Amendment whichprohibits the governrnent from "establishing" areligion because it does not favor any particularreligion, but merely seeks to alleviate the"exceptional" govermnent-created burdens

\

Pro Se VoL 15 No.3 Summer 2005

placed on the practice of religion in the prisonenviromnent.

"The 'free exercise of religioll,'" wrotethe Court, "often involves not only belief andprofession but the perfol1l1ance of physical actssuch as assembling with others for worshipservice or participating in sacramental use ofbread and wine. [RLUIPA] covers state-runinstitutions [such as prisons] in which thegovernment exerts a degree of controlunparalleled in civilian society and severelydisabling to private religious exercise. [It] thusprotects institutionalized persons who areunablefreely to attend to their religious needs and aretherefore dependent on the govermnent'spermission and accommodation for exercise oftheir religion."

That said, the Court cautioned thatRLUIPA does not "elevate accommodation ofreligious observances over an institution's needto maintain order and safety." "Our decisions,"wrote the Court, "indicate that anaccommodation of [religious rights] must bemeasured so that it does not override othersignificant interests."

Despite this caveat, RLUIPA providesinmates with a stronger tool for challengingprison policies that unnecessarily or arbitrarilyinhibit their religious practices. (The statute canbe read at 42 U.S.C. § 2000cc-l(a)(I)-(2).)

Pro So VoilS No.3 Summer 2005

NEWS AND BRIEFS

Restriction:; and Rhetoric Inten:;~fY Around

Sex Offenders

Following several high-profile casesaround the nation, in which convicted sex­offenders were accused of assaulting children,legislators around New York are preparing anew wave of restrictive legislation concerningsex-offenders. For example, Binghamton's CityCouncil recently passed an ordinance restrictingthe movement of persons convicted of sexcrimes, barring them from being within aquarter-mile radius ofschools, day-care centers,playgrounds, and parks. (A map of the cityshowing the zones from which sex-offenderswould be excluded under the ordinance showsthat virtually the entire city is off-limits.)Proponents of the ordinance concede that it isprobably illegal and the issue is likely to end upin City Court, which is itselfwithin a zone fromwhich offenders are barred.

Similar local legislation has beenintroduced in Staten Island and is beingconsidered elsewhere. An Albany Countylegislator, for example, is planning to introducea ban on sex offenders "living within a mile ofschools, bus stops, day care facilities, orplaygrounds."

Besides banishing persons convicted ofsex offenses from specified areas, those whobelieve that current restrictions are not enoughhave proposed tracking them with globalpositioning technology, increasing the use ofweb sites ahout oftenders, and other measures.Several proposals would increase the availability

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of information about offenders. For instance,Monroe County is considering the possibility ofmaking available to individuals the same accessto information about Level 2 sex offenders asthey have to information about sex offenders inthe Level 3 category. See related story, page 18

Rockefeller Drug Reform Hns LimitedEffects

Pro Se reported the details oflast year'sreform ofthe draconian Rockefeller Drug Lawsin our previous issue (Spring, 2005). Advocatesfor drug law reform, however, have long saidthat the new law was only a beginning, not theend of what is needed. These assertions are,being borne out as the modest effect of thelegislation is being realized. A recent news itemin the Times-Union Newspaper, for instance,recognized that "the failure of the new law toaddress all but the stiffest of drug penalties ishurting even those few the limited measure wasdesigned to assist." The article went on: "Ofthe446 Class A-I offenders in the prison systemwhen [Governor] Pataki signed the new law, 66have been re-sentenced, but only 21 have beenreleased as of April 30." Moreover, while thereform bill provided for some reductions in thesentences required for future Class B through Edrug offenders, those reductions were not maderetroactive to offenders currently serving timeunder the prior scheme, meaning that the prisonpopulation remains swollen with drug offendersserving needlessly long sentences. (In 1980, only11 percent of those incarcerated were drugfelons; in 2003, drug felons compl1sed 38percent ofthe prison population, ofwhom over70 percent have never been convicted of aviolent felony.) See related story. page 20

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Prisoners' Legal Services Focuses on MentalHealth Loll'

The last decade has seen a significant risein the number of inmates in the Department ofCorrectional Services' ("DOCS"') custody withserious mental illness. Many such inmates havea limited ability to control their behavior andcope with the stresses of a prison environment.As a result, they are over-represented indisciplinary and other forms of isolatedconfinement, a situation which can furtherendanger their mental health. Statistics showthata disproportionate number of inmate suicidesoccur in isolated housing.

Prisoners' Legal Services has a long­standing commitment to providingrepresentation to imnates with mental illness andensuring that they receive appropriate mentalhealth services while incarcerated. As part ofthat work, PLS litigated and settled the classaction Anderson v. Goord, which concerned theplacement of mentally ill inmates in SHU atAuburn and Green Haven prisons. PLS is alsoone of several agencies co-counseling DAI v.OMil, a class action addressing the custody andtreatment of imnates with mental illness inisolated housing units (including SHU, keeplock,and administrative segregation) throughout thestate.

Last year, PLS opened a mental healthlaw unit. The unit focuses on the extensivemental health work being performed at PLS. Itmonitors the settlement of the Anderson case,litigates the DAI case, and advocates for inmateswith mental illness housed in SHU.

Pro So VoL 15 No.3 Summer 2005

Monitoring Anderson v. Goord

The Anderson settlement required DOCSto follow extensive new procedures indisciplinary cases in which an inmate's mentalhealth may be at issue, both in determining theextent to which the inmate be held responsiblefor his or her behavior, and in assessing thepenalty to be imposed. (The new procedures arecodified at 7 NYCRR 254.6[b] - [g].) It alsorequired the establishment of"Special HousingCase Management Committees," jointDOCS/Office of Mental Health ("OMil")panels, which discuss the conduct and mentalhealth status of SHU inmates who are on theOMil caseload and which may recommendchanges, including a reduction ofsentence time.(Earlier articles detailing the terms of theAnderson settlement can be found in the Winter,2004 and Winter, 2005 issues ofPro Se.)

Under the terms of the settlement, PLShas been monitoring how DOCS handles thenew procedures. The monitoring job starts withthe collection and recording ofa huge amount ofdata. Over the last year, the mental health unitreviewed nearly 300 Tier III hearings forimnates with mental health problems at Auburnand Green Haven prisons. The unit reviews boththe confidential clinical testimony given atdisciplinary hearings as well as those segmentsof the hearing that are not consideredconfidential. The non-confidential parts of thehearing include the reading of inmate's rights,the testimony of non-clinical witnesses,documentary evidence and the reading of thedisposition. The Hearing Officer's conduct ofthese parts of the hearing is reviewed todetermine whether the Hearing Officer is

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complying with the new hearing proceduresrequired by Anderson and the extent to which heor she seemed to consider the inmate's mentalstatus. The unit also reviews confidential clinicalevidence given about the inmate's mental status.Under the settlement, a Hearing Officer isrequired to consider clinical testimony fromOMH about an inmate's mental health beforerendering a decision. PLS's mental health unitscrutinizes the quality of the testimony given bymental health staff and the Hearing Officers'responses to it.

The mental health unit also reviews theminutes of Case Management Committee("CMC") meeting and presents our findings andrecommendations to the Anderson defendants.CMC minutes are reviewed to determine ifinmates are being properly monitored at GreenHaven and Auburn. This review includes takingnote as to the frequency in which inmates arereviewed by the CMCs, the adequacy of thereview, CMC recommendations as to thesuspension or reduction in SHU time, and CMCrecommendations restoring privileges to inmatesin SHU.

LitigatingDtsability Advocates Inc. v. New YorkSiale Office orMental Health et al.

In addition to monitoring Anderson,PLS's mental health unit, in conjunction with theLegal Aid Society, Disability Advocates, Inc.,and a private law firm, Polk & Wardwell,litigates this class action against the New YorkState OMH and DOCS. The lawsuit, filed threeyears ago, seeks systemic relieffor inmates withserious mental illness confined in DOCS'custody.

Since the case was filed, we have

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conducted prison inspections with psychiatricand security experts at eleven prisons and theCental New York Psychiatric Center,interviewed approximately 360 inmates,reviewed the mental health records for 730inmates and taken close to torty depositions.

During the course ofthat time, the Statehas taken steps which acknowledge the need tomake greater efforts to serve inmates withmental illness. It recently opened a BehavioralHealth Units ("BHU") at Great Meadow andSullivan Correctional Facilities, a residentialtherapeutic program designed to help inmates"who have been in SHU often for long periodsof time" to "eventually return to GeneralPopulation or other appropriate programs in theDepartment ofCorrectional Services (DOCS)."We are currently gathering additionalinformation about the BHU program.

PLS will continue to focus on the needsofinmates in DOCS' custody with mental illnessthrough litigation and advocacy efforts. As anagency, we are strongly committed to improvingthe care and treatment for this population.

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Federal Cases

Supreme Court Decisions

Due Process: Court Holds MinimalProcedures Sufficient for "Supermax"Assignment

Wilkinson v. Austin, 125 S.Ct. 2384 (June 13,2005)

The Supreme Court held this tenn thatminimal, "infonnal" procedures are sufficient toprotect the due process rights ofan inmate priorto his placement in Ohio's "supermax"correctional facility. The procedures approvedby the Court are significantly less than those thatwould be required to take away an inmate'sgood time or revoke his parole, even thoughconditions in the "supennax" at issue areextremely harsh.

The Court described the conditions in the"Ohio Super-Maximum Prison" ("OSP") asfollows:

[A]Imost every aspect ofan inmate'slife is controlled and monitored. Inmatesmust remain in their cells, which measure7 by 14 feet, for 23 hours per day. Alight remains on in the cell at all times,though it is sometimes dimmed, and aninmate who attempts to shield the lightto sleep is subject to further discipline.During the one hour per day that anirunate may leave his cell, access islimited to one of two indoor recreationcells.

Incarceration at OSP is synonymous

Pro So Vol. 15 No.3 Summer 2005

with extreme isolation. In contrast to anyother Ohio prison, including anysegregation unit, OSP cells have solidmetal doors with metal strips along theirsides and bottoms which preventconversation or communication withother inmates. All meals are taken alonein the inmate's cell instead of in acommon eating area. Opportunities forvisitation are rare and all events areconducted through glass walls. It is fairto say OSP inmates are deprived ofalmost any environmental or sensorystimuli and of almost all human contact.Aside from the severity of theconditions, placement at OSP is for anindefinite period oftime, limited only byan inmate's sentence. For an inmateserving a life sentence, there is noindication how long he may beincarcerated at OSP once assigned there.

The due process clause ofthe fourteenthamendment states that the government carmottake away "life, liberty or property" withoutproviding "due process oflaw." "Due process oflaw" refers to the procedures the governmentmust follow before "taking" someone's life,liberty or property. The procedures may rangefrom mere notice that the government intends totake a particular action up to a full trial of thesort required to put someone in prison. TheSupreme Court has developed "balancing tests"to determine how much process must beprovided prior to any given "taking." The testsusually weigh the nature of the interest at stake,i.e., life, liberty or property, against the strengthofthe state's interest in taking and the value, intenns of correct decision-making, of providingmore process.

Pro Se Vol 15 No. 3 Summer 2005

The first question in this case waswhether inmates even had a liberty interest instaying out of OSP. In the past, the Court hasheld that only conditions of confinement thatimpose an "atypical and significant hardship onthe inmate in relation to the ordinary incidents ofprison life" will give rise to a liberty interest.Here, the Court had no trouble finding that theharshness of OSP met that test, and that,therefore, inmates were entitled to some processprior to being placed there. The next questionwas, How much process?

Ohio determines who gets placed in OSPas foHows: First, a security levelrecommendation is made to a three-memberClassification Committee. Then, theClassification Committee reviews the proposaland holds a hearing. An inmate is provided withwritten notice ofthe hearing, which summarizesthe conduct or offense triggering theclassification review. The inmate may attend thehearing and may "offer any pertinentinformation, explanation and/or objections to[OSP] placement," but he may not callwitnesses. If the Committee recommends achange in classification which will result in anOSP placement, the recommendation isforwarded to the warden, who must give finalapproval. Ifthe warden approves the placement,a copy ofthe recommendation, setting forth thereasons for the decision, is given to the inmate.The inmate then has 15 days in which to appealthe recommendation to the Bureau ofClassification. Ifboth the warden and the Bureauapprove the classification, the inmate istransferred to OSP. Once assigned to OSP,inmates receive another review within 30 days oftheir arrival and then annually thereafter.

The Court in Wilkinson weighed three

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factors in assessing whether this process wasadequate: first, the nature of the liberty interestaffected; second, the risk of an erroneousdeprivation of liberty with the procedures inplace; and third, the government's interest,including the fiscal and administrative burdensthat additional procedural requirement wouldinvolve.

Applying those factors, the Court foundthat Ohio's process was sutllcient. With respectto the first factor, the Court held that, althoughan inmate's interest in avoiding an erroneousplacement at OSP was "more than minimal," theinterest had to be seen in the context of theprison system as a whole: "The liberty ofprisoners is curtailed by definition," the Courtnoted. What was at issue in this case was merelya change in the conditions of confinement, notfreedom from all confinement. Therefore, theCourt reasoned, the process provided need notbe as extensive as that provided when the rightat stake is the right to be free from allconfinement (such as, for example, in a parolerevocation hearing, or in a disciplinary hearingwhere good time is at stake).

With respect to the second factor, theCourt found that Ohio's policies minimized therisk of an erroneous placement in OSP byproviding multiple levels of review by variousdecision makers, and by providing imuates withnotice of the grounds for the placement and afair opportunity for rebuttal, as well as aplacement review 30 days after the initialassignment.

With respect to the final factor, theCourt found that Ohio's interest in protecting itsstaff, the public, and other inmates wasparamount: "Ohio's first obligation must be toensure the safety off,>uards and prison personnel,

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the public, and the prisoners themselves," wrotethe Court. "Prison security, imperiled by thebrutal reality of prison gangs, provides thebackdrop of the State's interest." The Courtwrote that were the State required to provideadditional procedures betore ordering a transferto OSP, such as the rigbt to call witnesses, boththe objective ofcontrolling the prisoner and itsgreater objective of controlling the prison couldbe defeated.

"Where, as here," the Court concluded,"the inquiry draws primarily on the experience ofprison administrators, and where the State'sinterest implicates the safety of other inmatesand prison personnel," informal, non-adversaryprocedures "provide the appropriate model."

Note: The question ofwhether conditions inthe OSC may violate the Eighth Amendment·s banagainst Cnlel and unusual punishment were notpresented in this case.

Second Cireuit Decisions

The Second Circuit Court ofAppeals is theFederalAppeals Courtwithjurisdiction overftderalcases that arise in New York. It is the level ofcourtdirectly below the Supreme Court. lts decisions areconsidered precedent in New York and musi befollowed by the ftderal district courts in New York.

Denial ofHepatitis-CMedication May ViolateEighth Amendment: Case Should Go To Jury

Johnson v. Wright, 412 F.3 3a8 (2d Cif. 2005)

Imnate Johnson suffers from Hepatitis C.Over a period of approximately two years, hisdoctors repeatedly reco1l11l1ended that he beplaced on Rebetron therapy to treat his HepatitisC condition. DOCS, however, has a policy that

Pro Se Vol. 15 No.3 Sommer 2005

"generally forbids the prescription of Hep Cmedication to any prisoner with evidence ofactive substance abuse within the preceding twoyears." Since Johnson had, on one occasion,approximately twelve months earlier, testedpositive for marijuana use, DOCS over-ruled theadvice of the doctors and refused to prescribeJohnson with the requested treatment. Johnsonsued, claiming deliberate indifference to hismedical needs.

A district court rejected his claim. Thecourt held that DOCS officials were notdeliberately indifferent to Johnson's seriousmedical needs because their refusal to treat himwas medically justifiable. Their treatment (orlack thereof) was consistent with the DOCS'Practice Guideline and the Guideline "was basedon medical evidence that was apparently reliableat the time." "[B]ecause defendants reasonablycould have believed that the policy embodied inthe Guideline was medically justified, Johnsonnecessarily could not prove that they acted withdeliberate indifference in initially refusing toprescribeRibavirin to him." (Pro Se reported thedistrict court decision in our October, 2004issue.)

The 2d Circuit reversed. The question,the Court held, "is not whether the Guideline'ssubstance abuse policy is generally justifiable,but whether ajnry could find that the applicationof the policy in plaintiff's case could haveamonnted to deliberate indifference to plaintitrsmedical needs." Here, the Court found,"[b]ecause the defendants reflexively appliedDOCS policy in the face of the unanimous,express, and repeated...reco1l11l1endations ofplaintitrs treating physicians, including prisonphysicians, we believe a jury could reasonably

Pro Se Vol IS No. 3 Summer 2005

find that the defendants here acted with

deliberate indifference to the plaintiff's medicalneeds."

A jury, the Court noted, could find that

"the defendants sincerely and honestly believedthat they were required to comply with the

substance abuse policy articulated in theGuideline and that applying this policy was, inplaintiff's case, medically justifiable." However,the Court pointed out, a jury could just as easilyfind that "defendants here did. ..know ot: anddisregard an excessive risk to, plaintiff's health."

Practice pointer: An inmatecomplainingaboutmedicalcare infederalcourtmust prove that DOCS was "deliberatelyindifferent" to a "sertous" medical need inorder to prevail. A "serilms" medical need isone whichpresents "a condition ofurgency, " orthat "may produce death, degeneration, orextreme pain." To act with "deliberateindifference, "prison personnel must have bothknown ofand disregarded "an excessive risk"to the plaintiff's health. This is a greatershowing than mere negligence. The prisonermust show that the defendant was both "aware(if facts .from which the inference could bedrawn that a substantial risk ~f serious harmex/st[ed!, and [that the defendant drew] theinference. " See Farmer v. Brennan. 511 U.S. at834 (1994)

Note: DOCS'policyoflimit/ngHepatitis·Ctreatment to persons with active substance abusewithin the preceding two years remainscontroverSial, a controversy Pro Se reported on atgreater length in our Fall, 2003 issue. In that issue,we also reported on two State court challenges tothe policy. In one ofthose cases, In re Applicationof Domenech. the inmate succeeded in reversingDOCS' decision to exclude him from treatment.That case was recently affirmed by the Appellate

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Division. We report the decision in this issue, atpage 19.

Jury Instructions Upheld In EighthAmendment u',e ofForce Case

Baskerville v. Mulvaney, 411 F.3d 45 (2nd Cir.June 3, 2005)

The question in this case was: Whatexactly must an inmate prove to win an EighthAmendment excessive use-of-force claim?

Plaintiff Baskerville alleged that twocorrection officers used excessive force againsthim in violation of the Eighth Amendment, andsubjected him to racial discrimination andreligious retaliation in violation ofhis Fourteenthand First Amendment rights. Baskerville allegedthat the defendants used excessive force duringa-take down based on their suspicion that he was

in possession of contraband, repeatedly hittinghim on the head and neck while saying, "All ofyou niggers think you are something specialtalking that Farrakhan shit. .. Call Farrakhannow." The case went to trial. At the conclusionofthe trial, the court instructed the jury on whatit would have to find in order to find thedefendants liable. We quote the court'sinstructions at length because they areinstructive. The court stated:

To establish a constitutional violationunder the Eighth Ameadment a plaintiffmust meet both an objective and a subjectiverequirement. To satisfY the objectiverequirement the plaintiffmust prove that theviolation is sufficiently serions or harmfuleaough by objective standards. The objectivecomponent is "context specific, turning upon'contemporary standard~ of deceacy. '"Hence, a de minimis [minimal]use offorce

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will rarely be sufficiently selious orharmful enough. In other words, not everypush or shove, even if it may later seemunnecessary, violates a prisoner'sconstitutional rights.

To meet the subjective requirement,the plaintiffmust prove that one or moreof the defendants had a wanton state ofmind when they were engaging in thealleged misconduct. Wantonness turnsupon whether the force was applied in agood-faith effort to maintain or restorediscipline, or maliciously or sadisticallyto cause harm. To determinewhetherthedefendants acted maliciously you shouldbase your determination on factorsincluding: 1, the extent of the plaintiffsinjuries; 2, the need for the application offorce; 3, the correlation between theneed and the amount of force used andthe threat reasonably perceived by thedefendants; 4, any efforts made by thedefendants to temper the severity of aforceful response. You may alsoconsider whether the force was appliedin order to retaliate against the plaintifffor his religious expression or todiscriminate against him on the basis ofhis race. If an evaluation of these and/orother factors leads you to conclude thatone or more of the defendants actedmaliciously, wantonness has beenestablished and an Eighth Amendmentviolation has occurred. If, on the otherhand, reflection upon these factors leadsyou to find that the defendants acted in agood-faith effort to maintain and restorediscipline, no constitutional violation hasoccurred because the subjectivecomponent of the claim has not heensatisfied.

In order for the plaintiffto prove that

Pro So Vol. 15 No.3 Summer 2005

one or more of the defendants violatedhis Eighth Amendment right to be freefrom excessive force, the plaintiff mustprove by a preponderance of theevidence both the objective andsubjective requirements.

The jury found against Baskerville.Baskerville appealed. In his appeal, he arguedthat the court's instructions were too restrictive.According to Baskerville, the court should haveinstructed the jury that even a minimal amountof force could sustain an Eighth Amendmentviolation, so long as the actions of the officerswere malicious or sadistic. The 2d Circuitdisagreed.

In Hudsonv. McMillian, 503 U.S. 1, 112S.Ct. 995 (1992), the Supreme Court indicatedthat there could be a case where "de minimis"force might be enough to sustain an EighthAmendment claim. Here, however, the Courtfound that the use offorce alleged by Baskervillewas not de minimis and therefore, there was "nodanger that the jury might have considered theconduct at issue to have been 'malicious,' yetnot sufficiently serious to meet the objective testas described by the court."

Baskerville also argued that the districtcourt had erred by instructing the jury that if itfound no excessive use offorce, then it need notconsider claims of religious retaliation. The 2dCircuit rejected this argument, as well.

The court held that there may be caseswhere a push or a shove might not be enoughforce to state an excessive use of force claim,but still be actionable if motivated by racialdiscrimination or religious retaliation. Here,however, the instructions explicitly allowed thejury to consider 'whether the force was applied

Pro Se Volts No.3 Summer 200S

in order to retaliate against the plaintiff for hisreligious expression or to discriminate againsthim on the basis of his race.' This instructionprovided the jury with adequate opportunity toconsider the defendants' possible motivationsand to find that their conduct was "malicious andsadistic" ifit was motivated by Baskerville's raceor religion.

DOCS Wins Case On Restricted Diet

Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002)on remand to 2005 WL 1313444 (WD.N.Y.June 1,2005)

The constitutionality of DOCS' use ofthe "loaf' diet continues to be a source ofcontroversy and litigation. The "loaf," a blandand solid concoction offlour, milk, yeast, sugar,salt, margarine, potatoes, and carrots, is used byDOCS as a punishment for inmates in extremecases. An inmate on the loaf is suspended fromthe regular prison food service and given onlythe "loaf' three times a day. DOCS argues thatnutritionists have analyzed the loafand reportedthat it meets health and dietary standards. Anumber of inmates, however, have argued thatbeing placed on the loaf amounts to cruel andunusual punishment.

In this case, which Pro Se has beenfollowing since our March, 2003 issue, inmatePhelps alleged that his placement on the diet forfourteen days was "cruel and unusual" becauseit failed to mect proper nutritional standards,caused him to lose over thirty pounds, andcaused severe abdominal pain and emotionaldistress.

Phelps won a preliminary round in 2002,when the 2d Circuit Court ofAppeals ruled that

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his complaint stated a claim because he allegedthe defendants "knew or recklessly disregardedthat the restricted diet ... was nutritionallyinadequate" and knew their actions "were likelyto inflict pain and suffering and extremeemotional distress."

Upon remand, however, the districtcourt dismissed his complaint without ruling onthe underlying constitutional claims. ItdismissedOn the grounds that none of the defendants henamed were personally involved in his placementon the loaf, or that they were entitled toqualified immunity.

The "personal involvement" of eachdefendant is required in a federal Section 1983lawsuit. It is not enough to merely sue the Stateof New York. (This is because the EleventhAmendment to the Constitution grants the statesimmunity in federal court.) Instead, the lawsuitmust name particular defendants, and eachdefendant must have some personal involvementin the matter being complained of

In Colon v. Coughlin, 58 F.3d 865 (2dCir. 1995), the court held that the personalinvolvement ofa defendant can be established inone of five ways: 1) the defendant participateddirectly in the alleged constitutional violation;2) the defendant, after being informed of thealleged constitutional violation, failed to remedyit; 3) the defendant created a policy or customnnder which the allegedly unconstitutionalpractices occurred; 4) the defendant was grosslynegligent in supervising subordinates whocommitted the wrongful acts; or 5) thedefendant exhibited deliberate indifference to therights ofinmates by failing to act on informationindicating that unconstitutional acts wereoccumng.

In Phelps, there were four defendants:

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Kapnolas, Delaney, McGinnis, and McClellan.Defendant Kapnolas wrote the misbehaviorreport which resulted in Phelps being placed onthe loaf However, Phelps admitted at hisdeposition that Kapnolas had nothing to do withhim being placed on the diet. Kapnolas argued,and the Court found, that he didn't know thatPhelps would be placed on the diet aspunishment and, even if he did, he was notaware of any nutritional deficiencies associatedwith the diet.

Another defendant, Delaney, was theHearing Officer at the disciplinary hearing whichresulted in the loaf diet being imposed. Thecourt noted that even if Delaney knew of therestricted diet order, Phelps failed to introduceevidence that "Delaney knew ofand disregardedan excessive risk to plaintifTs health or safety, orthat she was both aware offacts from which theinference could be drawn that a substantial riskof serious harm existed and that she drew thatinference."

Defendant McGinnis was theSuperintendent of the facility. Phelps testifiedthat he wrote letters to McGinnis complainingthat the loaf was "rotten." The court found thatthe evidence in the record before it failed "toestablish that McGinnis was put on notice oftheconstitutional nature of the complaint, or thatthe food being served to plaintiff on therestricted diet was causing him to receiveinadequate nutrition."

Even if the defendants had sufficientpersonal involvement, the court continued, theywould be entitled to qualified immunity. Aprison official is entitled to qualified immunitywhen "their conduct does not violate clearly

Pro Se Vol. 15 No. 3 Summer 2005

established statutory or constitutional rights ofwhich a reasonable person would have known."Here, the court found that the defendants shouldbe "pennitted to rely on the DOCS' directiverequiring that inmates be given a sufficientquantity of wholesome and nutritious food."Since there was no evidence on the record thatany of the defendants personally knew that theloafdid not provide adequate nutrition, the courtfound that there was no basis to conclude thatany of the defendants acted in an "objectivelyunreasonable manner." In making thisdetermination, the court relied, in part, on thefact that there has not yet been any other casesfinding that DOCS' "loaf" diet is nutritionallydeficient.

Note: The court came to a differentconclusion in Rodriguez v. McGinnis, 2004 WL{145911 (WD.NY) (May 18,2004). In that case,which also involved a restricted diet, the courtconcluded that the defendants were not entitled toqualified immunity. The court held: "At the time ofthe alleged incidents it was well established thatdeliberately denying an inmate adequate food anddeliberately failing to address serious medicalconcerns could violate the inmate's constitutionalrights. " Unlike the plaintiffin Phelps, the plaintiffin Rodriguez submitted expert testimony on thenutritional inadequacy ofthe diet, Mr. Rodriguez'smedical condition, his inability to eat the diet, andthe defendants' apparent knowledge that numerousinmates, including Mr. Rodriguez, had claimed tobe unable to stomach the diet. This evidence createda question of fact as to whether the defendantsshould have reasonably believed that they were notViolating plaintiffRodriguez' constitutional rightsby imposing the restricted diet. We reported onRodri('uez in the October, 2004 issue ofPro !Ie.

Pro So Vol 15 No.3 Summer 2005

Court Holds Pro Se Complaints GtJVerned byMinimal Standflrd~

Phillips v. Girdic!1408 F.3d 124 (2d Cir. 2005)

PlaintiffClifton Phillips was incarceratedat Upstate. He wanted to file a lawsuit againsthis jailers but he had no access to an attorney.He initiated his lawsuit pro se by filling out aform called "Inmate Civil Rights ComplaintPursuant to 42 U.S.C. § 1983."

Phillips named several administrators atUpstate as defendants. He then wrote more thanten single-spaced pages stating why he wassuing. He submitted the form, plus the ten pages,as his complaint. The complaint alleged that hehad been denied contact visits and subjected toa pattern of harassment because of his race.Most of the ten pages contained, according tothe court, "a litany of allegations purporting todemonstrate that black inmates were treateddifferently than white inmates" It asserted threelegal claims: "systematic harassment" inviolation of the Eighth Amendment's ban oncruel and unusual punishment; a denial ofcontact visits in violation of the FirstAmendment; and race and gender discriminationin violation ofthe Fourteenth Amendment.

TheDistrict Court rejected the complaintas confusing and inadequate. It ordered Phillipsto file a new complaint that included "acorresponding number ofparagraphs ... for eachallegation, with each paragraph specifYing (i) thealleged act ofmisconduct; (ii) the date on whichsuch misconduct occnrred; (iii) the names ofeach individual who participated in suchmisconduct; (iv) where appropriate, the locationwhere the alleged misconduct occurred; and (v)the nexus between such misconduct and

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Plaintiff's civil and/or constitutional rights"After Phillips failed to file a complaint thatsatisfied the court, the court dismissed his claim.Phillips appealed.

The question before the Second Circuitwas: What are the minimal standards for a pro­se complaint? Another question was: Can adistrict court dismiss a complaint simply becauseit is not artful? The court held that the standardsfor a pro-se complaint are minimal, and that thelower court was mistaken in dismissing thecomplaint.

"The claims ofpro-se litigants should beconstrued liberally," Wlote the court. Theyshould not be dismissed unless "it is clear thatthe plaintiffwould not be entitled to reliefunderany set offacts that could be proved consistentwith the allegations." "Federal rules ofprocedure," continued the court, "command usnever to exalt form over substance." Lowercourts should, therefore, "excuse technicalpleading irregularities as long as they neitherundermine the purpose of notice nor prejudicethe adverse party." Specifically, the rulesrequiring that a complaint be separated intonumbered paragraphs were designed only to"facilitate the clear presentation of the mattersset forth," so that allegations might easily bereferenced. They should be read only as aguideline to ensure that complaints are "simple,concise, and direct." "Where the absence ofnumbering or succinct paragraphs does notinterfere with one's ability to understand theclaims or otherwise prejudice the adverse party,the pleading should be accepted."

Phillips' complaint met minimalstandards. It named particular defendants and itcontained specific allegations about theirconduct which, read liberally, supported the

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legal claims he was making. His complaint aboutracism, for instance, was supported by hisallegations that white inmates who had engagedin misbehavior similar to his had not lost theircontact visiting privileges, while he had. Thecourt wrote:

Although Phillips' allegations were notneatly parsed and included a great deal ofirrelevant detail, that is not unnsual from apro-se litigant. As long as his mistakes donot prejudice his opponent, a plaintiff isentitled to trial on even a tenuous legaltheory, supported hythe thiImest ofevidencc.To the extent that the court helow demandedsomething more than Phillips provided, iterred.

District Court

Inmate Was Not Denied Access To Court

Davidson v. Murray, 371 F.Supp.2d 361(W.D.NY 2005)

An inmate who has filed many lawsuitsrecently lost a case in the federal District Courtfor the Westem District Court ofNew York inwhich he claimed that prison administrators haddenied him adequate access to court. The courtfound that the alleged refusal by correctionsofficers at Attica to respond to inmateDavidson's requests for legal writing suppliesand certain law books did not violate his right ofaccess to court.

Although the United States Constitutionguarantees prisoners a "meaningful right ofaccess to the courts," the court found that thisdoes not translate into an "abstract, freestandingright" to have a law library or legal assistance. Inother words, the court found, "prison law

Pro Se Vol. 15 No.3 Summer 2005

libraries and legal assistance programs are notends in themselves, but only the means forensuring a reasonably adequate opportunity topresent claimed violations of fundamentalconstitutional rights to the courtS." In order toestablish a violation of the right of access to thecourts, an inmate must show more than a refusalto provide legal materials. He must demonstrate"actual injury," that is, "that a non-frivolouslegal claim had been frustrated or was beingimpeded" due to the actions or inaction ofprisonofficials.

In Mr. Davidson's case, the court notedthat despite the inmate's claim of denial ofaccess to the courts, he had filed fifteen federalcivil rights actions in the district courts duringthe three years he was Attica, at least sixteenappeals in the Second Circuit of Appeals, andeighteen claims in New York State courts. In thepresent case, moreover, he had made more thanone hundred written submissions to the court inthe form of letters, motions, affidavits,memoranda of law, and others. Under thecircumstances, the court found that noreasonable juror could conclude that Davidsonhad been denied adequate access to the courts.It dismissed his suit.

State Cases

Discipline

Court Outlines Rules Governing "WitnessRefusal" Cases

Matter of Hill v. Selsky. 795 NYS. 2d 794(3d Dep't 2005)

Pro Se V6\ \5 N6. 3 Summer 2005

The confusing law of "witness refusal"cases--disciplinary cases in which an inmate'sproposed witness refuses to testifY--has beenclarified, or at least consolidated, by the court inMatter of Hill v. Selsky. The question in Hillwas: What must a Hearing Officer do to protectan accused inmate's right to obtain testimony inhis defense when a proposed inmate witnessrefuses to testifY? The answer: It depends.

The facts of the case are as follows:Petitioner Hill was charged with failing toproduce a urine sample after he allegedlydribbled water from his mouth into thc specimencup. He denied the charge and the matterproceeded to a superintendent's hearing. Prior tothe hearing, he asked his employee assistant tointerview two potential witness, both inmates atthe same facility. Both ofthe potential witnessestold the assistant that they would testifY. On theday of the hearing, however, the correctionsofficers sent to escort the witnesses to thehearing room reported that they had bothrefused to testif}', and that they also refused togive a reason for their refusal to testifY. TheHearing Officer then sent a sergeant to interviewthe witnesses. The sergeant also reported thatthe witnesses refused to testifY and refused toprovide a reason for their reluctance. Thehearing then proceeded without the witnessesand Hill was found guilty. In his subsequentArticle 78 proceeding, he argued that theHearing Officer was required to personallyinterview the witnesses to verifY that they wererefusing to testifY or to ascertain their reasonsfor refusing.

The court looked upon the case as "anopportunity to set forth the circumstances inwhich a Hearing Officer conducting a Tier mprison disciplinary proceeding must personally

PagelS

ascertain the reasons for the refusal ofan inmatewitness to testif}' on behalf of the chargedinmate." Prior cases, the court found, hadestablished the following rules:

o If there has been no inquiry into the reasonfor the witness's refusal to testif}', adeprivation of the inmate's right to presentwitnesses will be found, regardless ofwhether the witness had previously agreedto testifY or not.

o If the witness did not previously agree totestifY and a reason for his refusal to testifYappears in the record, no violation of theright to call witnesses will be found.

o If the witness did not previously agree totestifY and no reason for the refusal appearsin the record, the Hearing Officer mustconduct an inquiry into the reason for therefusal; however, an inquiry through acorrection officer will be sufficient.

o If the refusing witness previously agreed totestif}' and subsequently refuses to do so, theHearing Officer is not required to conduct apersonal inquiry, so long as: I) a genuinereason for the witness's refusal appears inthe record; and 2) the Hearing Officer madea sufficient inquiry through a correctionsergeant to determine the authenticityofthatreason. However, the mere statement by awitness that he "[did] not want to beinvolved" is not a sufficient reason to excuseapersonal interview by the Hearing Officer.

o If the refusing witness previously agreed totestifY and now refuses to do so and gives noreason for the refusal, the Hearing Officermust personally ascertain the reason for the

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inmate's unwillingness to testifY. If, however,the Hearing Officer conducts a personalinterview with the witness but is unable toelicit a genuine reason for the witness'sreluctance to testifY, the charged inmate'sright to call witnesses will have beenadequately protected.

Here, the court held that the case tell intothe last of the above categories. The twowitnesses had previously agreed to testifY but,when the time came, refused and would give noreason for their refusal. Under thecircumstances, the Hearing Officer was obligedto personally interview the potential witnesses totry to detennine what caused them to changetheir minds. "Petitioner's right to call witnesseswas not adequately protected by third-personinterviews because the Hearing Officer lackedthe opportunity to j\ldge the authenticity of thewitnesses' refusals." Accordingly, the hearingwas reversed.

Practice pointer: ffall ofthese rules soundconfilsing it is because they are. They represent anaccumulation ofrules derivedfrom many difjerentcases over a long period <?ftime. Nevertheless, thisis a "good-as-it-is-likely-going-to-get" summary ofthe current state of the law of "witness refUsal"cases. Ifyou have a case involVing a witness whorefused to testify, read the above rules car~fijlly iodetermine under which category your case jails.

Denial of Assault Victim's Medical RecordsHeld Harmless Error

Matter of Cody v. Goord, 794 N.Y.S. 2d 149(3d Dep't 2005)

Petitioner Cody was found guilty ofassaulting a staff member. After he filed an

Pro Se Vol. 15 No. 3 Summer 2005

Article 78 proceeding, the court found that therewas strong evidence to SUppOit his guilt,including the testimony of the officer who wasassaulted. The Petitioner complained, however,that it had been an error for the Hearing Officerto rethse to allow him to view the medicalrecords of the assaulted correction officer'sinjuries. The court agreed. "[A]Ithough [themedical records were] not dispositive ofPetitioner's guilt or innocence of the assault onstaff charge, they were relevant thereto." But,the court continued, the Hearing Officer's errorin failing to provide them "was harmless in lightof the overwhelming evidence of Petitioner'sguilt and the fact that [he] did not rely on thesubject medical records as part of the basis fordetermination."

Practice Pointer: Courts have givenconjlicting answers to the question ofwhether themedical records ofan assault victim are relevant inthe disciplinary hearing ofthe accusedassailant. Inaddition to this case, the court in both Brown v.Goord, 750 NY.S2d 800 (3d Dep't 2002) andAuricchio v. Goord, 7/3 N.Y.S.2d 888 (3d Dep't2000), held that the jililure to prOVide medicalrecords ofassault victims was in error, but in eachofthese cases, the error was deemed harmless (inBrown because the evidence was contained in otherdocuments in the record; in Auricchio, as in thiscase, because of the "overwhelming evidence" ofthe Petitioner's gUilt.) Other cases have held thatinjuries ofthe victim are irrelevant to the questionof whether an assault occurred. See Ouiles v.Goord, 705 NY.S2d 256 (3d Dep 't 2000); Irby v.Kellv. 556 N. Y.S2d 409 (3d Dep't 1990)

A Night on the Town?

Matter ofCalhoun v. Selsky, 795 N.Y.S.2d 406(3d Dep't 2005)

Pro Se VoltS No.3 Summer 2005

Petitioner Calhoun left the correctionalfacility where he was incarcerated, havingobtained a pass for an overnight visit home.When he returned, he was charged with havingabsconded from temporary release. At hisdisciplinary proceeding, he testified that acounselor gave him permission to leave thefacility overnight in return for a payment of$120.00. The Hearing Officer found him guiltyand the court affirmed. The record indicated thatCalhoun had been advised during orientationthat intJlates were only eligible for overnightpasses after 30 days of incarceration. Calhounwas not eligible for a pass because he had notbeen at the facility for 30 days. This, togetherwith his admission that he had paid a counselorfor the pass, constituted substantial evidence ofhis guilt.

There is no word in the decision ofwhatbecame ofthe Corrections Counselor.

Parole

Rare Occurrence: Court Reverses Board ofParole, Orders New Hearing

MatterofWallmanv. Travis, 794N.Y.S. 2d381(I" Dep't 2005)

Court decisions over-ruling the ParoleBoard are not quite as infrequent as sightings ofthe Dodo bird, but they are few and far between.In general, the courts grant the Parole Boardgreat deference. Couli challenges to paroledenials are typically rejected with minimalexamination of the record and boilerplatelanguage, such as, "The Board [has] consideredall [the] relevant statutory factors and therebeing no showing of 'irrationality bordering on

Paget7

impropriety,' further judicial review isprohibited." See Parmes v. Travis, 792N.Y.S.2d881 (3d Dep't 2005)

So it was a welcome surprise this quarterwhen, in Matter ofWallman v. Travis, the courttook a close look at a Parole Board decision,and reversed it. The Petitioner was a 64-year-oldformer attorney serving a 3%- to10-year sentence for stealing from his clients'escrow accounts. While in priSOll, he had a gooddisciplinary record and had obtained an EarnedEligibility Certificate. At his parole hearing, hesubmitted numerous letters from personssupporting his request for parole. He alsoattempted to explain his misconduct, expressedremorse for his acts, and stated that he intendedto fulfill his repayment obligations if and whenreleased.

Nevertheless, the Board denied parole. ItWrote that there was a "reasonable probabilitythat [Wallman], if released, would not live andremain at liberty without violating the law," andthat his release was "incompatible with thewelfare and satety of the community." TheBoard supported its decision by noting thatWallman's crime involved several milliondollars, that the conduct took place over a longperiod of time, and that the thefts came from"injured persons looking tor redress." Inaddition, the Board found, Wallman showed"limited insight" into his crimes.

The court reversed. Initially, the courtnoted that the Board's determination that therewas a "reasonable probability" that Wallmanwould not be able to live at liberty withoutviolating the law appeared to be basedexclusively on the nature and seriousness ofhiscrime. When a Parole Board decision reliesexclusively on the severity ofthe offense to deny

Page 18

parole, the court held, it "contravenes the[sentencing] scheme mandated by the [penallaw] [and] effectively constitutes anunauthorized re-sentencing of the defendant"

The only other reason fbI' denying parolethat was given by the Board was Wallman'salleged lack ofinsight into his crime. The courtfound, however, that the Board's conclusion onthis issue was both "perfunctory" andcontradicted by what had actually happened atthe hearing. At the hearing, the court pointedout, the Petitioner had repeatedly shownremorse for his crimes and insight about whythey had occurred. The Board's argument to thecontrary mis-represented the record. Far fromminimizing his conduct, the record showed,Wallman had answered the questions put to himfrankly and directly. The Board's arguments tothe contrary took his answers out ofcontext andignored his repeated assertions of personalresponsibility. Since there was thus no basis forthe Board's assertion that Wallman lackedinsight into his crime, and the only other basisfor the Board's conclusion that he could not liveand remain in society without violating the lawwas the seriousness of his offense, the decisionwas "irrational bordering on impropriety."

Practice pointer: As this discussionsuggests, the standard against which Parole Boarddecisions are measured is whether they are"irrational bordering on impropriety." This is avery difficult standard to meet. Generally, wherethere ts evtdence in the record that the Boardconsidered the factors listed under Executive Law §259-i(c)(A), the Board's decision will be upheldunless, as indicated, the decision is so irrational asto "border on impropriety." In this case, thePetitioner had an advantage: he had obtained an"Earned Eligibility Certificate" under CorrectionLaw § 805. That statutes provides that persons who

Pro Se Vol. 15 No.3 Summer 2005

have obtained an earned eligibtlity certificate"shall" be granted parole at the expiration ofthemintmum term unless the Board makes anadditional finding: "that there is a reasonableprobability that, ifsuch person is released, he willnot live and remain at liberty without violating thelaw and that his release is not compatible with thewelfare ofsociety. " Here, the court found that thegranting of the Earned Eligibility Certificate"creates apresumption infavor ofparole release. "

Fai/ure of Sex Offender to Find "SuitableHousing" Deemed Sufficient Ground forDenial ofConditional Release

Matter ofBillups v. New York State Division ofParole, 795 NY-S.2d 408 (3d Dep't 2005)

One symptom of the ever-increasingscrutiny of convicted sex offenders (see article,Page 3) has been the imposition by the DivisionofParole of stringent "special conditions" uponthe conditional release of such offenders. Theconditions, which must be met before eitherparole or conditional release may be granted,typically limit where and with whom theoffender may live. In practice, they often havethe effect of making release all but impossible.

Critics of the Division have argued thatsuch impossible-to-meet conditions are too oftenmerely a pretext for ensuring that sex offendersare not released at all prior to the expiration oftheir maximum terms. Critics have argued thatsuch conditions violate both the letter and thespirit of Penal Law § 70.40(1)(b), which statesthat an inmate serving an indeterminate termwho has been granted all of his Good Time"shall" be conditionally released after servingtwo-thirds of the maximum term. The Boardcounters, however, that the statute also gives it

Pro Se Vol1S No.3 Summer 2005

the authority to establish "conditions" ofrelease,and that if it establishes conditions which theinmate can not meet, it need not release him.

The courts have consistently upheld theBoard in these cases.

InMonroev. Travis, 721 N.Y.S.2d 377(2d Dep't 200 I), for example, the Divisionrequired that the Petitioner secure housing in aresidence where a responsible adult lived whowas willing to cooperate with the Petitioner'sParole Officer, and which could not be near apotential victim. The Petitionerwas unsuccessfulin finding housing deemed appropriate by theDivision and the Division refused to release himto a homeless shelter. The court held that"contrary to the Petitioner's contention, it iswithin the discretion of the Division to imposethe special condition of securing approvedhousing, even though the condition must besatisfied before his request ofconditional releasecan be granted."

The present case, Matter of Billups,continues that trend. In this case, the Petitioner'sconditional release date was March 13, 2002.The Division refused to release him due to histailure to find what it deemed a "suitableresidence." The court broadly affirmed theauthority ofthe Division, holding: "The Divisionis authorized to impose special conditions uponan inmate's release from prison [and] impositionof the requirement of a suitable residence wasrational under the circumstances [ofthis case]."

Medical Cat'e

State Appeals Court Uphohls Lower CourtDetermination TllatDOCS' BartoHepatitis-CTreatment Constitutes Deliberate Indifference

Page 19

In re Application of Domenech, 797 N.Y.S.2d313, (2d Dep't, 2005)

In the Fall, 2003 issue of Pro Se, wereported on two state cases which reviewedDOCS' guidelines for providing Hepatitis-Ctreatment to prisoners. In People ex reL Sandsonv. Duncan, 761 N.Y.S.2d 379 (3d Dep't 2003),the prisoner sued, claiming that DOCS' refusalto provide himwithHep-C treatment constitutedcruel and unusual punishment in violation oftheEighth Amendment. The court tbund in favor ofDOCS. The court reasoned that because thePetitioner had failed to complete a substanceabuse treatment program and had continued touse controlled suhstances, DOCS was medicallyjustified in withholding treatment. Sandsonsubsequently filed a motion for leave to appealto the Court of Appeals, which was denied.

Domenech fared better. In Domenech,the inmate also claimed that DOCS' refusal toprovide him with Hepatitis-C treatment violatedhis Eighth Amendment rights. As in Sandso!!,DOCS denied treatment because ofthe imnate'shistory ofdrug use. The undisputed facts ofthecase, however, showed that Domenech had beendrug free for over thirty years. The lower courtfound that DOCS' rigid adherence to itsguidelines, regardless of the individualcircumstances involved in this case, constituteda deliberate denial ofmedical care in violation ofthe Eighth Amendment.

The State appealed the lower court'sfulding. The appellate court has recently issueda decision on the case, affirming the lowercourt's decision. The court held: "Under thecircumstances ofthis case, the denial ofmedicaltreatment to the Petitioner prison imnatepursuant to the appellants' medical treatment

Page 20

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

Inf/Ulte Obtains Reduced Sentence UnderRockefeller Drug Law Reform Act

People v. Carson, 2005 WL 1403776 (June 13,2005)

In the last issue of Pro Se (Spring,2005), we summarized the provisions of theRoekefellerDmgLawRefonn Act (the"DRA"),the new law intended to moderate thenotoriously harsh sentences required for somedmg offenses, particularly A-I offenses, sincethe 1970s. The Refonn Act has manyshortcomings (and many critics; see article,Page 3); however, it is plainly a boon to the 400or so inmates presently serving 15-to-life or 25­to-life sentences as a result ofconvictions for A­I drug offenses. Under the law, they maypetition a court to have their sentences reducedto a determinate sentence of between 8 and 20years.

People v. Carson shows the process inpractice. Defendant Carson was sentenced to 15years to life after being convicted of one countofCriminal Sale ofa Controlled Substance in theFirst Degree in 1999. After passage of theRefonn Act late last year, he petitioned thesentencing court to have his sentenced reducedto a determinate sentence within the newguideline range. The act states that the court"shall" grant a re-sentencing petition unless"substantial justice dictates that the application

Pro Se Vol. 15 No.3 Summer 2005

should be denied." Here, the People concededthat "substantial justice" would not be opposedto re-sentencing.

The question remained, however, whatthe new sentence would be. As noted, the newlaw gives the court discretion to impose adeternlinate sentence ofanywhere from 8 to 20years. Carson argued that he should be re­sentenced to the statutory minimum of8 years.The People urged that he should receive a newsentence of 14 years.

The Refonn Act states that whenconsidering a new sentence, the court "mayconsider any facts or circumstances relevant tothe imposition ofa new sentence [as well as] theinstitutional record of confinement of suchperson... " Carson presented the court withmany mitigating facts to support his position thathe should be re-sentenced to the minimum tennof incarceration of 8 years: he had no priorfelony record; the sentence he received of 15years to life was much harsher than the sentenceof 6 years to life received by his co-defendant(who did have a prior felony conviction),especially in light of the fact that the defendantwas interested in settling this matter but wasforced to trial due to his co-defendant's lack ofinterest in a plea and the People's choice not tosever the cases; that at sentencing the court wasin receipt of nearly 50 letters of support writtenon his behalf from family, friends, andcommunity members; that his institutional recordfor infractions is minimal; that he successfullycompleted numerous rehabilitation, vocational,and educational programs, including earning hisGED; that he worked while incarcerated innumerous positions and earned favorablereviews at those tasks; and that should he be

Pro So VoilS No. 3 Summer 200S

released sooner rather than later, the defendanthas employment opportunities waiting for him,a home with his mother, family support, and afamily friend who is a social worker who iswilling to assist him.

In view of all of these factors, the courtgra.nted the defendant's request for an 8-yeardeterminate sentence.

Family of Deceasell Inmate Awarded$377,200.00

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

Pro Se reported in our Summer, 2003issue that the State ofNew York had been foundliable for the death of William Newborn, aninmate. On July 19, 1997, Mr. Newborn, animnate with a history of mental illness, told asocial worker that if he were denied parole, hewould commit suicide. On July 29, 1997, he wasdenied parole. Three days later, he overdosed onPamelor, an anti-depressant and one of at leastthree prescriptions in his possession.

An investigation by the StateCommission of Correetion Medical ReviewBoard found Green Haven's medical andpharmacy staff deticient in managingMr. Newborn's medication, especially since theyfailed to adhere to regulations that allpsychotropiC medications must be administeredby a nurse. In the earlier opinion, the courtgranted the plaintiff, Mr. Newborn's mother,summary judgment on various theories ofnegligence, including medical malpractice. Themost recent decision deals solely with damages.

Page 21

According to the court, after attemptingto commit suicide, Mr. Newborn was brought toan outside hospital, where he underwent atracheotomy and suffered pulmonarythromboembolism and bronchopneumonia. Adoctor testified that Mr. Newborn choked todeath over two weeks.

The judge awarded $350,000 forMr. Newborn's suffering during the two weekshe was in the hospital. The court granted noaward for lost wages, since Mr. Newborn hadbeen in and out of various institutions since hewas 12 years old, and had never earned enoughto file a tax return. New York law does notpermit damages for the grief suffered bysurvivors in a wronf,rfi.d death case, so noadditional damages could be given to the fiunilyfor its suffering. But the court did find oneprovision that enabled it to awardMr. Newborn's mother $25,000.

Prison regulations clearly state that whenan imnate is hospitalized in an outside facility,the next ofkin must be alerted. Here, the familyknew nothing of Mr. Newborn's overdose andhospitalization until after he had died. Themother, Christine Newborn Arias, testified thatshe learned ofher son's death from a priest

"She stated she felt overwhehrtingsadness, anger and guilt," wrote the court. "Shestated that if she had been told her son was inthe hospital, she would have gone to visit andcomfort him. She stated that she lives with angerand guilt every day of her life beeause her sondied all alone. "

The total award amounted to $377,200,including damages for Mr. Newborn's pain andsuffering, funeral expenses, and the personalclaim on behalf of the mother.

Page 22

Family ofPennsylvania Inmate Awarded 2.5Million in Wrongful Death L'laim

The family of a Permsylvania womanwho suffered a fatal asthma attack while inprison will receive $2.15 million in a settlementof a lawsuit against the State Department ofCorrections and a health care provider,

Evidence in a federal lawsuit filed by thefatnily showed that the inmate, Erin Finley, 26,died on August 29, 2002 after medical personnelat the State Correctional Institution at Muncyignored her repeated pleas for help, Shedesperately sought medical care for severeasthma she had had since she was a child, butshe was repeatedly rejected, based on a prisondoctor's belief that she was "faking" hersymptoms,

According to the lawsuit, Finley wastransferred to SCI Muncy on July 2, 2002, Sheexperienced problems with her asthma and wasseen at the prison infirmary, Over the nextmonth, she returned to the infirmary severaltimes, but medical personnel disregarded hercomplaints,

That disregard was documented by atleast three written requests Finley made, inwhich she begged prison officials to reverserulings made by Dr, Craig Bardell, an employeeof the prison, who prohibited her from havingsteroids that helped control her asthma,

"I really feel like I am going to die ifnothing is done," Finley wrote in a July 24grievance filed with a prison nurse, "I'm beggingyou to please help me,"

According to the suit, Bardell hadordered the discontinuance of steroids onJuly 15, saying he believed Finley was overusing

Pro Se Vol. 15 No, 3 Summer 2005

and abusing them. He came to that conclusionwithout having physically examined her. Finleycontinued to have problems breathing, and onJuly 27 she wrote another request, asking adifferent physician to see her "as soon aspossible," "My asthma is so bad and Dr. Bardellsays I am faking it. I don't know what else todo," the request stated, On the morning of herdeath, Finley phoned her mother in a hystericalstate, saying she could not breathe, At aroundnoon, she was directed to go to the infirmary,where a physician's assistant examined her. Theassistant told Bardell that Finley needed to go tothe hospital, but he refused to see her and leftthe prison at 2:40 p,m.. Twenty minutes later,Finley lost consciousness and stopped breathing,She was transported to an area hospital, whereshe was pronounced dead at 4: 11 p.m..

Pro Se Practice

Mu.~t DOC'}Have aMail WatchAuthorizationto Uphold Disciplinary Charges forCorrespondence Violations?

This article addresses an inmate's rightsif he or she is disciplined pursuant to a facilityreview of that inmate's incoming or outgoingmail. Procedures for innlate correspondence andfacility review ofinmate correspondence are setforth in Title 7 New York Code, Rules,Regulations (NYCRR) 720.3 (outgoing mail),and 7 NYCRR 720.4 (incoming mail), Ifprisonofficials seek to discipline an inmate based upona violation of the correspondence regulations,they must be able to show that they havecomplied with the procedures for review of

Pro Sc Volt5 No.3 Summer 2005

inmate correspondence (commonly referred to as"mail watch" procedures) set fOlth in theseregulations.

Pursuant to 7 NYCRR 720.3(e), aninmate's outgoing mail shall not be opened,inspected or read without written authorizationfrom the superintendent. With respect tooutgoing mail, a superintendent is only permittedto authorize a mail watch, which involves theopening or inspection of the mail, if there isreason to believe that a law or disciplinary rulehas been violated, or that the mail threatens thesatety or security ofthe prison or ofany person.

The standards for reviewing incomingmail, set forth at 7 NYCRR 720.4(e), are slightlydifferent. As with outgoing mail, incoming mailmay only be read based on the superintendent'swritten authorization. A superintendent mayauthorize a mail watch of incoming mail only ifthere is evidence tbat the mail may contain plansfor sending contraband into or out of a prison,plans for criminal activity, including escape, orany information that would present a clear andpresent danger to the safety ofany person or thesecurity of a prison.

In general, courts have held that prisonofficials must be able to show that they havefollowed their own correspondence policies inorder to impose diseipline based on review ofcorrespondence. Exactly what prison officialsmust do to show that they have followed theirown correspondence regulations is not,however, totally clear. The Appellate DivisionFourth Department has spoken to this issue in atleast three cases: Knight v. Goord, 681N.Y.S.2d 719 (4 lh Dep't 1998); Chavis v.Goord, 697 N.Y. S.2d 409 (4lh Dep't 1999); andOde v. Kelly, 552 N.Y.S.2d 475 (4lh Dep't1990). In Knight, the Fourth Department held

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that where discipline charges are based onreview ofan inmate's outgoing correspondence,the hearing record must contain thesuperintendent's written mail watchauthorization, which must explain reasons forthe mail watch. There, a Tier ill hearingdisposition was reversed because the hearingrecord did not contain the mail watchauthorization, and therefore failed to show thatprison officials had followed their ownprocedures for inspecting inmate mail.

In Chavis, the Fourth Departmentaddressed the issue of a facility's review of aninmate's incoming mail. In that case, the courtheld that 7 NYCRR 720.4(f) "provides thatwritten authorization from the facilitysuperintendent to read incoming correspondencemust be placed in the inmate's file and that suchauthorization must be based upon b'roundsrelated to 'safety, security and order.'" Chavis,697 N.Y.S.2d at 409. Because there was nowritten authorization allowing the facility toinspect the incoming mail, the court, relying onits earlier decision in Knight, reversed thedisciplinary disposition.

In Ode, although a mail watchauthorization was apparently included in therecord of a Tier ill hearing, the hearingdisposition was reversed because the mail watchauthorization was inadequate. The court heldthat the authorization did not "set forth specificfacts forming the basis for the action," asrequired by the regulation. Ode, 552N.Y. S.2d at475.

The Appellate Division, ThirdDepartment, approaches mail watch issuessomewhat differently. The ThirdDepartment hasheld that when an inmate is disciplined on thebasis of review of his mail, the hearing record

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must contain substantial evidence that there wasa properly authorized mail watch, although theactual mail watch authorization is not required.Thus, in Knight v. McGinnis, 781 N.Y.S.2d 716(3fd Dep't 2004), the Third Department foundthat there was enough evidence to establish anauthoriz.ed mail watch, through testimony andother evidence, even though the actual mailwatch authorization was not in the hearingrecord. Knight. 781 N.Y.S.2d at 716.

If you are charged with misbehaviorbased on review of correspondence, you shouldbe sure to request the mail watch authorizationor other evidence that would demonstrate that

Pro se Vol. 15 No.3 Summer 2005

there was a properly authorized mail watch. Youcan request the mail watch authorization orother evidence from your employee assistant,and ifyou do not receive this material from yourassistant, you can request it directly from theHearing Officer. If the Hearing Officer deniesyour request, or if you feel that the evidencedoes not show that a mail watch was authorizedbased on the applicable regulations, be sure toobject on the record, and raise the issue in youradministrative appeal.

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