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New York Federal Court Finds Victim's Hearsay Accusation Insufficient in Prison Disciplinary Case; Suit Settles for $67,000

by Matt Clarke

A New York federal District Court has held that prison officials were liable for convicting a prisoner in a disciplinary proceeding based solely on a victim's uncorroborated hearsay statement.

Carl E. Molano, a New York state prisoner, was on the recreation yard at the Five Points Correctional Facility on January 16, 2008 when another prisoner, Travis Lang, was slashed across the face by an assailant who attacked him from behind. Sixty-eight other prisoners were on the yard at the time.

Lang initially said he didn't know who had attacked him. Later, Molano was charged with the slashing in a prison disciplinary proceeding after Lang allegedly identified him from a photo spread of all the prisoners on the yard.

Lang refused to testify in a Tier III disciplinary proceeding held by Hearing Officer Jose Pico. Guard J. Wright testified that immediately after the attack, Lang told him he did not know who assaulted him. Another prisoner testified that he was talking to Molano when the attack occurred. Sgt. Levac testified that he had witnessed Lang identify Molano from the photo spread.

Molano was found guilty and sentenced to 36 months in the Special Housing Unit (SHU). He appealed to Norman Bezio, Director of Special Housing and the Inmate Discipline Program, arguing there was insufficient evidence to support the disciplinary conviction. Bezio denied his appeal but reduced the SHU term to 24 months.

Molano filed an Article 78 proceeding in New York State Supreme Court. While that case was pending, but after Molano had spent around 12 months in the SHU, the Commissioner administratively reversed the disciplinary conviction. Molano then filed a civil rights action in federal district court under 42 U.S.C. § 1983, alleging due process violations based on the lack of evidence in the disciplinary proceeding and Bezio's failure to reverse his conviction.

The defendants and Molano filed cross-motions for summary judgment. The court noted that "the misbehavior report completed by Sergeant Bevier was made up entirely of hearsay and double hearsay statements from other officers, none of whom endorsed the report or submitted their own firsthand reports." Lang had refused to testify and included on a refusal form the statement, "This inmate was the one who assaulted me." However, Lang denied making such a statement and later gave Molano a sworn affidavit saying he did not believe Molano was his assailant.

"No one who testified at the hearing had personally observed the attack, and no testimony or evidence was presented at the hearing which suggested that any efforts, beyond the photo array, were made to verify the identification of plaintiff as Lang's attacker, to assess Lang's credibility in making the identification, or to explore his testimony that he had not identified plaintiff as his attacker on the refusal form," the district court wrote.

During the proceedings in federal court, Sgt. Bevier testified that he had signed a New York State Police Photo Display Record indicating he was the only officer present during the photo array. However, on cross-examination he testified that he had not been present for the photo array, stating that Sgt. Levac, who was not listed on the Photo Display Record, was the only officer present.

The district court found that the evidence submitted at Molano's disciplinary hearing was at best "a bare accusation by a victim who then refused to confirm his initial allegations," with no "independent credibility assessment" by prison officials. This was inadequate under Luna v. Pico, 356 F.3d 481 (2d Cir. 2004), an earlier case involving the same disciplinary officer, in which the court held that "a bare accusation by a victim who then refused to confirm his initial allegations" was insufficient.

"The evidence upon which plaintiff was found guilty at the Tier III hearing – records and testimony concerning Lang's identification of plaintiff in a photo array, an identification which Lang refused to confirm, and ultimately denied having made – is insufficient to satisfy even the lenient 'some reliable evidence' standard required for due process," the district court stated.

Further, Bezio could be held liable for failing to reverse the disciplinary conviction – an issue he had failed to brief – and neither Pico nor Bezio was entitled to qualified immunity. The court therefore granted summary judgment to Molano on the issue of liability and ordered the parties to confer to reach an agreement on damages, failing which a damages trial would be scheduled.

The parties reached a settlement that was approved by the court on January 24, 2013 in which the defendants agreed to pay $67,000 to resolve the case, inclusive of $22,333 in attorney fees. Molano was represented by Buffalo attorney Thomas Terrizzi. See: Molano v. Bezio, U.S.D.C. (W.D.N.Y.), Case No. 6:10-cv-06481-DGL; 2012 U.S. Dist. LEXIS 52522.

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Related legal case

Molano v. Bezio