Vol. 14 Number 2: July 2004 Publisbed by Prisoners' Legal Services of New York

New York High Court Reverses 2()-Year Precedent;
Holds Inmates Entitled to Credit For Out-of-State Jail Time
In a unanimous decision, the Court of
Appeals, New York's highest court, recently
reversed a twenty-year-old precedent, and
ordered both DOCS and local correctional
facilities to grant inmates credit for out-of~state
jail time. The decision, Matter of Guido v.
(Joord, J N.Y.3d 345, 774 N.Y.S.2d 113
(2004), means that many inmatcs will be cntitled
to additional jail time credit for which they have
previously been ineligible. (The Appellate
Division decision in the Guido case WllS reported
in our Spring Issue, Vol. 13, No.2, March
2003)
"Jai] time" is time spent in custody in a local
correctional facility prior to being incarcerated in
a state facility. Penal Law §70.30(3) sets forth
the conditions under which an inmate is entitled
to jail time credit. It states, in part: "]n any casc
where a person has been in custody due to a
charge that culminated in a dismissal or an
acquittal, the amount of time that would have
been credited against a sentence for such charge,
had one been imposed, shall be credited against
any sentence that is based on a charge for which
a warrant or commitment was lodged during the
pendency ofsuch custody." ]n short, Peual Law

§70.30(3) requires that, in any case where an
inmate is held in custody on a charge that is
ar/ide continued on Pt{l{t 2...

Also Inside...
Sarah Betsy Fuller
A Message from Tom Terrizrl,
Executive Director of PI..S . . . . . . .. page 4
State Supreme Court lJpbolds nocs'
Poli(~y Reguil-ing Prisoners to Serve
Keeplock Disciplinary Confinement
page 5
in Sill)

nocs Implements New Drug and
Explosive Screening Devise \Vitb
Mixed Reviews . . . . . . . . . . . . . . . .. page 6

Second Circuit Reinstates Prisoners'
pt Amendment "Free Exercise" of
Religion Claims
_. . . . .. page 8
Second Cit'cuit Takes Small SttllS
onPLRA

page 14

Select Issues in Sentence Calculation page 26

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This prtJjecf if supported by a grant administered by the New York State Dh'ifion of Criminal JUftUe SeTVk~es. Points of ~'Iew In this dm:umenl
ure thQse ofthe auth.or and do not necessarily repre.wmt the uffu:;a/ position or poJicief olehe Division of Criminal Justlce Services,

Pro S5 Vol 14 No.2

Page 2

... artide (vntinuedfrom page 1

ultimately dismissed or ofwhich he is ultimately
acquitted, thc inmate should receive jail time
credit for thc timc he was held in such custody
toward a subsequent New York sentence ifNew
York lodgcd a warrant whilc that inmate wa~ in
such custody and that warrant resulted in a
subscquent sentencc. Pcnal Law §70.30(3)(a)
also requires that jail timc served on charges
which result in concurrent sentences shall be
crcdited against all ofthe concurrent sentences.
In 1984, howcver, in the casc of Mattcr of
Petcrson v. New York State Department of
Correctional Services, lOO A.D.2d 73, 473
N.Y.S.2d 473 (2d. Dep't 1984), an intermediate
appellate court held that jail time served outside
of New York should be treated differently than
jail time served within the state. In that case, the
petitioner, Peterson, had been arrested by federal
authorities and held in federal detention l()!'
approximately six months. After being sentenced
on the federal chargcs, he was transferred to the
custody of New York City, which had an
outstanding warrant f(lf his arrest. He eventually
received a New York sentence which was
ordered to run concurrently with his lederal
sentence. The question addressed by the court
was whether he was entitled to crcdit his Ncw
York scntence with the six months ofjail tin1e hc
had served in federal dctention.
Had Peterson's jail time been served in a jail
in New York, there would have been no
question that he would have been entitled to the
credit pursuant to Penal Law §70.30(3)(a).
Beeausc the jail time was served in a fedcral
facility, however, the court treatcd it differently.
The court held that Peterson could only obtain
credit for the time ifhe could prove three things:
that bail had been set on the federal charges; that
he had the financialmcans to make the bail; and
that the only rcason he failed to make bailor

otherwise secure his release wa~ the existence of
the New York State detainer. The court
reasoned t11at an inmatc should be ablc to credit
his New York sentence with out-of-state jail
time only ifhc could show that Ncw York was
the sole cause of the detention.
The reasoning ofPeterson proved influential.
Over time, other intermediate appellate courts
applied the same reasoning to all out-ot:state jail
time. Few inmates with out-of-state jail timc
were able to satisJY the 3-pl'Ong test set forth in
Peterson. DOCS, for its part, took the position
that it would award out-of-state jail time only if
ordered to do so by a eourt. The net result has
been that vcry few inmates have received credit
for their out-of-state jail time, even though, had
they served the time in a New York jail, they
would have been entitled to such credit.
Guido has changed all this. In Guido, the
petitioner was arrested in Florida on Florida
charges. While in a local jail in Florida, Ncw
York lodged a warrant against him. Allcr
serving more than a year in Florida, he was
acquitted of the majority of the charges facing
him in that state and the rest ofthe charges were
dismi~sed. He was then extradited to New York,
where he was eventually convicted of charges
outstanding in this state. After commencing his
sentence in DOCS, he sought credit for his
Florida jail time.
As was the ca~e in Peterson, had Guido
served thc jail time in New York, there would
have been no question ofhis eligibility lor credit.
Under Penal Law §70.30(3), if Guido had been
in a New York jail, as long as Guido ultimately
received a sentence based on a charge for which
a warrant was lodged while he was in custody on
the other charges, all the tin1e Guido served on
the charges which were dismissed or ofwhichhc
was acquitted would be applied to that sentence.
Because of Peterson, however, DOCS replied
that it could not grant Guido credit for the

Pro Se Vol. 14 No.2

Page 3

Florida time unless he could show that hc had
been eligible tor hail in Florida and that the only
reason he failed to make bail was because ofthe
New York detainer. Both the local State
Supreme Court and the Appellate Division
agreed with DOCS.
The Court of Appeals reversed. The Court
held that the Peterson court, and the courts that
applied the Peterson analysis to subsequent
cases, had erred. The Peterson ca~e, the Court
wrote, "established a rulc that conflicts with the
plain statutory language." "Penal Law §70.30(3)
makes no distinction whatsoever between those
who are detained by sister states or the federal
government." With respect to the "dismissal!
aquittal clause" of Penal Law §70.30(3), the
clause at issue in Guido's case, "the statute
exprcssly provides that inmates should receive
jail time credit 'in any case' where they were
held in custody'due to a charge that culminated
in a dismissal or acquittal,' as long as the
warrant giving rise to the New York sentence
was 'lodged during the pendency of such
custody. ,,, '''In any case'" the Court wrote,
"mcans in any case, and we cannot conclude that
by saying 'any' the Legislature meant some and
not others." In short, the Court concluded,
"Penal Law §70.30(3) does not contemplate the
place of detention as a factor DOCS should
consider when computing jail tinle credit."

What Guido Means
Guido ovcrrulcs both the reasoning and the
result ofPeterson. Under Guido, out-of-state jail
time must now be treated precisely the same as
in-state jail time. Ofcourse, not all persons with
out-of~state jail time will automatically be
entitled to credit the time against their New
York sentence. It; for instance, your out-of-state
jail time was previously credited to an out-ofstate sentence which is not ruooing concurrently

with your New York sentence, you would not be
entitled to apply the credit to your New York
sentence. However, Guido mearlS that the rules
now apply equally to in-state and out-of~statc
jail time. If you would have been eligible to
obtain jail time credit against your New York
sentence had you served the jail time in New
York, you eannot be denied the credit merely
because you served the time outside of New
York.
Persons most likely to be affected by Guido
are those serving a New York sentence
concurrently with a previously-inlposed out-ofstate sentence and those who had detainers filed
against them by New York while serving jail
time on out-of-state charges that were
subsequently dismissed.
In addition, the duty to credit jail time is a
"continuing, nondiscretionary, ministerial
obligation" [Bottom v. Goord, 96 N.Y.2d 870,
730 N.Y.S.2d 767 (2001)]. It is therefore clear
that Guido applies retroactively: any person who
was previously denied out-of-state jail time
credit may now be eligible f()r that credit, even if
the jail time was servcd long before Guido was
decided.
The procedurc for actually obtaining the
crcdit, however, is unlikely to bc
straightforward. Under Correction Law §600-a,
county sherifls have the respon~ibility for
keeping track of and "certif)ing" jail time to
DOCS; in New York City, the New York City
Department of Corrections has this
responsibility. DOCS has long argued that it may
not independently either add to or subtract from
the jail time that is certified to it by the local
facilities. Most courts agree with this position.
Consequently, in order to obtain credit for any
out-ot~,1ate jail time you think may be owed
you, you will have to obtain an "amended" jail
tinle certificate from the local jail that originally
certificd your jail time to DOCS. Here is where

Page 4

the difficulty may set in. Left unclear by Guido
is the extent to which local facilities will be
obliged to investigate your incarceration in a
forcignjurisdiction to detemline whether you are
entitled to out-of-state jail time. The Correction
Law requires local facilities to keep a record "of
all jail time to which the defendant is entitled."
Prior to Guido, however, it was unclear whether
a person who had served out-of-state jail tiDle
would be "entitled" to credit for that time. It is
thus unclear whether local facilities had the
obligation to maintain records, or, ifso, whether
they did. Many of these issues will have to be
worked out on a case-by-case basis in the filture.
[n the meantinle, if you believe you arc entitled
to out-of-state credit, you would be well advised
to request ccrtifications from the out-of-state
jailer and submit that proofto the New York jail
from which you are seeking certification.
If you write to a local jail seeking credit fiJr
out-of-state jail time, we suggest that you
provide the jail administrator with as much
evidence as possible regarding dates and
circumstauces of the tiDle f(Jr which you are
secking the crcdit. It may be the case that, in
order to obtain the credit due you under Guido,
you will have to tile an Article 78 proceeding
against the local jail, but initially you should do
all you can to obtain proofofyour incarceration
from the out-of:state jail and submit that proof
to the New York jail from which you are
requesting certification.
I{you have questions about your eligibility for
out-IJl-state jail time, write to Central Intake,
Prisoners' Legal Services, 114 Prospect Street,
Ithaca, New York /4850.

Pro Se Vol. 14 No.2

Sarah Betsy Fuller
A Message from Tom Terrizzi,
Executive Director ofPLS
Sarah Betsy Fuller, a PLS stall' attorney
knovm to many New York State prisoners as a
dedicated advocate, died April 21 following a
long battle with breast cancer.
While at PLS, Betsy represented hundreds of
people in New York prisons on a wide variety of
issues involving prison conditious. Scveral
notable l~ases included Hurley v. Goord and
Hughes v. Goord. Betsy was the lead attorney
for monitoring in Hurley, whieh successfully
challenged DOCS practice and procedure of
conducting strip searches and strip frisks.
Monitoring of the Consent Decrce lasted over
I 5 years and resulted in several contempt
motions, including one which challenged a
practice at Albion in which women prisoners
were videotaped by guards with hand held
eamcras, while they were strip searched. The
settlement ofseveral contempt motions brought
about thrther proteetions tor inmates during frisk
and search procedures.
Hughes, a class action on behalf of Native
American prisoners, ended in a settlement.
Negotiations lasting over two years resulted in a
comprehensive agreement to pennit Native
American inmates to conduct ceremonies,
possess medieine hags and other religious items,
and make daily prayers in the traditional way. It
also resulted in DOCS hiring a Native American
chaplain to ensure the observanees continued
and to assist in developing programs at various
prisons. The lead plaintiff in the case, Kirk
Hughes of Syracuse, New York., attended
filneral serviees for Betsy and was a pall-bearer.
Betsy was honored by the Onondaga Nation for
her work.

Pro Se Vol. 14 No.2

PageS

At the time she left PLS, Betsy was the lead
attorney challenging the use ofthe "loaf' diet as
punishment. Thc litigation, in both state and
fi:dcral courts, is being carried on by other PLS
staff.
Betsy was also a faculty member at Cornell
University Law School's Legal Aid Clinic,
starting in 1978, 'md had taught courses in trial
advocacy and other subjects for many years. In
1998, when PLS was temporarily shut down, shc
directed one ofSyraeuse University College of
Law's public interest law clinics. Prior to coming
back to PLS in 2001 ,she was a Fulbright scholar
at the Technical University of El Salvador in
2000-0 I, where she developed a clinical legal
program for the university's law school. Early in
her eareer, she worked at the U. S. Justice
Department, Civil Rights Division in the Fair
Housing Section, and for several ycars
represented Navajo and Hopi tribal members out
of a small office in Tuba City, Az. In 1997, a
book she eo-authored, Brown V.I'. Board of
Education: Equal Schooling for All, was
published in a Landmark Supreme Court Cases
series for teenage readers, schools and libraries.
Betsy was tenacious and persistent in her
work, qualities which are needed to make
systemic change happen. Prison conditions in
New York have changed for the better as a
result of her efforts. She was often creative in
her approach and moved others to do their best
work. We will all Iniss her.

nT

•

~

•

r

STATE SUPREME COURT UPHOLDS
DOCS' POLICY REQUIRING PRISONERS
TO SERVE KEEPLOCK DISCIPLINARY
CONFINEMENT IN SHU

On April 18, 2004, the State Supreme Court,
Franklin County, in a nine-page ruling by Acting
Justice S. Peter Feldstein, upheld DOCS' policy
and practice of requiring prisoners to serve
previously-imposed tier hearing penalties of
keeplock (KL) confmement ina Speeial Housing
Unit (SHU).
In2002, David Torres, a prisoner at Upstate,
eompleted a period of diseiplinary SHU
confinement. Upon completion of the SHU
penalties, however, he still had to serve
approxinJately 18 months ofpreviously imposed
penalties of KL eonfinement. Instead of being
transferred to a non-SHU faeility to serve the
KL time, Torres was informed that he would
remain at Upstate to serve the KL penalties.
Unlike the privileges and other amenities
prisoners enjoy in most KL settings, pursuant to
7 NYCRR §301.6(e)-(h), inmates assigned to
KL confinement but placed in SHU are expressly
subjected to the property, visitation, packages,
conmussary, telephone, and correspondenee
limitations plaeed on inmates assigned to SHU
confinement. Inmates at Upstate are subjeeted to
even greater restrictions than prisoners confined
at most other SHU's. Beeause of this, Torres
filed a grievance challenging DOCS' decision to
force him to serve his KL time in Upstate's
SHU. His grievance was denied at both the
facility level and on appeal to the Central Office
Review Committee (CORC). Having exhausted
his administrative remedies, PLS then fileJ an
Article 78 proeeeding on Torres' behalf:
In the Article 78, PLS argued that Torres
and other prisoners have a constitutional and
regulatory due proeess right to have a hearing
ofticer make a reasoned decision based upon the
evidcnce presented at a tier hearing, to know
what the penalty is and the reasons such penalty
was imposed, and, in turn, to serve a penalty no
harsher or more severe than either that imposed
by the hearing offieer or that imposed as a result

Page 6

of the tier hearing appeal process. Therefore,
PLS argued, DOCS' determination to essentially
convert Torres' KL eonfmement dispositions
into SI-nJ confinement, and to further require
that he serve that penalty under the particularly
restrictive conditions of Upstate, forced him to
serve penalties more severe than those originally
imposed by the hearing ofl1cers.
DOCS argued that it gave itself authority to
impose the challenged policy by enacting 7
NYCRR §30 1.6, entitled "Keeplock
Admission," which provides, in pertinent part:
(a) An inmate in a medium or minimum
security correctional facility or Upstate
Correctional Facility may be housed in a
speeial housing unit for reasons such as,
but not limited to ... (2) for confinement
pursuant to a disposition ofa disciplinary
(Ticr II) or superintendent's (Tier III)
hearing; ...
PLS argued, however, that 7 NYCRR
§301.6 is unconstitutional, in that it violates
Torres' constitutional and regulatory rights to a
hearing disposition based upon the considered
judgment of a hearing offlecr who had heard
relevant evidence. PLS also asserted that Torres,
like aU prisoners, has a right to be free from
arbitrary and capricious decisions in the context
of prison disciplinary proceedings, and that
DOCS determination to enact 7 NYCRR §301.6
and enforce it against Torres so as to require him
to serve his KL dispositions in SI-nJ in general,
and at Upstate in part icular, was arbitrary and
capricious.
It was also notcd in the Articlc 78 papers
that DOCS' policy of forcing inmates in
keeplock status to serve that h~eplock
disciplinary continement in an SHU, and at
Upstate, in particular, appears to be driven by
cost considerations and the apparent desire to fill

Pm S5 Vol. 14 No. 2

empty beds or cells at Upstate. PLS provided the
court with a DOCS press release, in which
Commissioner Goord stated that the security
cost is only $5,213 per inmate per year at
Upstate, compared to $20,000-$35,000 per year
at other SHU facilities. The Commissioner had
also indicated that there were some 200 empty
beds at Upstate at the time.
PLS has filed a notice of appeal.

DOCS IMPLEMENTS NEW DRUG AND
EXPLOSIVE SCREENING DEVISE JJ7Tll
MIXED REVIEWS
In the fall, DOCS began using a new
drug/contraband screening devise which is
designed to detect the presence of drugs or
explosive residue on visitors. The fon Searmer,
which is now being used in at least 15 prisons
across the state, was put into use in an attempt
to reduce the amount of illegal drugs or
explosives that are smuggled into the prisons by
visitors.
DOCS procedures require all visitors
selected for ion scarming to submit to a scan;
those who refuse to be scanned are prohibited
fi'om entering the facility. The ofl1ccr operating
the ion scanner takes the harld-held scanning
device and passes it over at least three areas
including, but not limited to, the individual's
hands, shoes, areas of clothing such as pant
pockets and the waistband area, personal items,
handbags, and packages. An alarm alerts the ion
scanner opcrator when thc device detects even
microscopic traces of certain basic chemicals.
Thc ion scanners work by detecting minute
amounts of vapors givcn off by nmcotics
particles. Apparently, even though a person may
test ncgative u)r dmgs during a blood or urine
test, the ion scanner c,an detect drugs if that
person had contact with someone else using
drugs, or if the person unknowingly was in

Pro Se Vol. 14 No.2

contact with drugs. DOCS has indicatcd that a
positive test result "may occur in any case where
a person has come into contact with an illicit
substance, whether the person has used that
substanee or not."
Pursuant to a Freedom ofInfom1ation Law
(FOIL) request, PLS received two different
notices that DOCS apparently posts to provide
visitors with information regarding the ion
scanner. One visitor notice reads: "The Ion
Scanner is designed to detect particles/residue
that exist if an individual is using or trafficking
drugs or explosives." However, the other notice,
which appears to be more accurate, discloses
that the ion scanner can result in a positive test
result, not becausc someone has uscd or bccn
involved with trafficking drugs or explosives, but
rather, simply because they 11ave come into
contact with such substanccs. It states: "Anyone
testing positive filr illegal substances which
could result from usage, handling and!orcontact,
will be denied entry into this cOITectiol1a1
fac ility."
Ifa positive reading results, a second scan is
performed on the same area that elicited the
positive result. Ifthe second test is positive, thcn
DOCS bars the visitor from visitation for two
eonsecutivc days. No further investigation is
conducted into whether the individual actually
possesses illegal drugs, even though the machine
can only detect contact with traces ofchemicals
that mayor may not have come from eontrolled
substances. Visitors are not allowed the
opportunity to receive a pat frisk or any other
type ofsearch after a positive test result. Neither
is an opportunity for non-contact visits provided.
If the visitor testing positive is a minor child,
that child's parent, or other eseort, is also denied
visitation.
After a positive test result or a refusal to be
scauned, DOCS takes a photograph of the
visitor and copies the visitor's drivers' license or

Page 7

other identification card. These documents are
attached to the positive ion scanner rcsults and
distributed to members ofthe ion scan team. The
results, without thc photographs, are also
distributed to prison superintendents and the
Inspector General.
The Ion Scanner has had both good and bad
reviews. DOCS claims that the use of the ion
scanner has dramatically reduced the number of
inmates testing positive for illegal drugs at the
prisons where the seanner is in use. Yet, DOCS'
admits in their posted visitor notices, that the
mere contact (cvcn unknowing contact) with
drugs or explosives could produce a positive
result and deny a visitor entrancc into a prison
facility. Opponents ofthe ion scanner assert that
it is so sensitive it dctects the slightest trace of
drugs or explosive residue, so even though a
person may not have illegal drugs or explosives
in their possession, if they have had any contact
with an illegal drug or an explosive recently,
they will test positive. Visitors have contacted
the New York Civil Liberties Union (NYCLU)
and PLS, claiming that they have been turned
away {yom the prisons after long journeys to visit
a relative because of an elToneous ion scmmer
reading. In turn, PLS and the NYCLU have
contacted DOCS, alleging, that in some cases,
the ion scanner has Imfairly kept some prisoncrs'
relatives Ii-om visiting their loved ones at the
prison. They have asked DOCS to suspend the
usc of the ion scmmer pending further
investigation, arguing that denying a visit
because of a microscopic trace of a drug's
residue on clothing or property is not rationally
related to preventing smuggling of drugs or
explosives.
The NYCUJ states that "[t]he problem with
using ion scanners as the sole basis for excluding
a prison visitor is not new. In fact, a 2001 U.S.
Department of Justice Report cautioned on the
use of the technology. Specifically, the report

Page 8

noted that because the scanners cannot
distinguish betweeu two different substances
composed ofsame size ions - cven an innocuous
substance can be identified as illegal contraband.
These 'false positives' can be triggered by
mcdicines, pertilmes and even chlorine baby
wipes." The NYCLU also notes that: "Unlike
New York, the Florida Department of
Correction uses ion scanners as a basis for
further inquiry and not as the sole grounds for
denying visitation. And in Massachusetts, the
state corrections agency stopped using ion
scanners to settle a lawsuit."
In response to complaints, DOCS admits
that there were a number 0 f complaints about
the ion scanner program after it was initially
implemented, but recently there have been no
complaints from visitors and only one complaint
from an inmate. DOCS has indicated that it
believes that visitor awareness of the testing
protocols coupled with refinement of tbe
program has led to a decrease in attempts to
introduce drugs during prison visits, a decrease
in use of drugs before prison visits, and hence a
decrease in complaints about the ion scanner
program.
At the time of the writing of this article, ion
scanners were being used at the following prison
facilities: Auburn, Cayuga, Elmira, Five Points,
Monterey, Southport, Willard, Beacon, Bedford
Hills, Downstate, Fishkill, Green Haven,
Taconic, and two separate facilities at Butler.
Note: l1,e NYCLU is continuing to investigate
complaints about administration ofthe ion scanner
program. Letters detailing complaints should be
sent to Dawn Yuster, StaffAttorney, either by email,
dyusterrJJ»)1Yclu. org, filX (212-344-3318) or regular
mail: New YorkCivilLiberties Union, 125 BroadS/.
17th Floor, New York, NY 10004.

Pot) Se Vol. 14 No.2

The Osborne Association1 sFamily Resource
Center in Brooklyn runs a statewide hotline for
questions and concerns from prisoners' families

and persons formerly incarcerated. All calls are
contidentiaL 800-344-3314

Roadblocks to Reentry: A Report by tile Legal
Action Center
Recently, the Legal Action Center released
a report summarizing their fmdings regarding
obstaeles that people with criminal records
encounter wben they are rcleased from prison
and attempt to reenter society. The rcport, based
upon an exhaustive two-year study, covers
reentry roadblocks regarding employment,
housing, benefits, voting, access to criminal
records, parenting, and driving. TIle report also
grades each state on how its laws and policies
affect those attempting to reenter society.
Finally, the report outlines ways in which
policymakers can help with reintegrating people
v,ith criminal records into society. The comp lete
report can be found at their website,
www.lac.orgfroadblocks.html.,oryoucanwrite
to the Legal Action Center with specific requests
for information. The address is: Legal Action
Center, 153 Waverly Place, NY, NY 10014.

Second Circuit Reinstates Prisoners' 1st
Amendment "Free Exercise" of Religion
Claims

Pro Se Vol 14 No.2

•

Ford v. McGinnis, 352 F3d 582 (2d Cir. 2003)
McEachin v. McGuinnis, 357 F3d 197 (2d Cir.
2004)
The Second Circuit has reversed two district
court decisions involving the First Amendment
as it relates to the rights of prisoners to freely
exercise their religion. In Ford, the Second
Circuit reversed the district court's decision to
grant summary judgment to the defendants,
finding that there were material questions offact
which precluded summary judgment. In
McEachin, the prisoner sued, alleging violations
of his pt, 8"', and 14th Amendment rights. Thc
lower court dismissed McEachin's complaint,
fInding that it fhiled to state a clainl. The Second
Circuit reversed the portion 0 f the district
court's decision wInch disrnissed McEachin's I't
Amendment clainls, finding that he alleged
suflicient facts to state a cause of acJion.
In Ford, plaintiff Wayne Ford, a Muslim
inmate, sued DOCS officials, alleging
infringement ofhis religious rights because they
refused to serve Ford the Muslinl holiday feast
of Eid-ul-Fitr. The district court granted
defendants' motion for summary judgment
mainly on the ground that the meal, which was
eventually served to other MuslinlS over a week
after the period prescribed by Muslim law and
tradition, "had lost all objective religious
signifieance due to its postponement and,
therefore, did not warrant free exereise
protection."
Aceording to the Muslinl religion, there are
two major religious observances in Islam, the
Eid ul Adha and the Eid ul Fitr. The Eid ul Fitr
is the time when the Muslil11S celebrate the
completion of the holy month of Ramadan.
During the month ofRarnadan, Muslim inmates
fast from sun up to sun down. The sighting of a
new moon signals the end of Ramadan, and
Muslim law and tradition require that within
three days of the sighting, the Eid ul Fitr Feast

Page 9

be served. "Celebration of the Eid ul Fitr
typically begins with a sweet breakfast, followed
by prayer and later the Eid ul Fitr Feast." At
Downstate C.F., on January 6, 2000, the new
moon was sighted, Ramadan was called to an
end, and Eid ul Fitr wa~ celebrated the next day.
The traditional sweet breakfast was served and
congregate prayer wa~ pennitted, but the actual
feast was not held on that day but postponed
until January 15. The Downstate Imam
authorized the postponement because the feast
day had £"Il1en on a weekday, and in order to
accommodate the families who wished to
participate in the feast, the feast day was moved
to the weekend.
Ford, the plaintift: arrived at Downstate on
January 7, 2000, and learned that the feast had
been postponed. Ford was in SHU at Downstate
but, nevertheless, contacted the Imam on
January 10, and, although most ofthe Eid ul Fitr
celebration had already been observed, Ford
requested that his name be placed on the list for
the Eid ul Fitr feast to be held on January 15,
2000. The Ministerial Program Coordinator tor
Islamic Affairs had, only months earlier, issucd
a memorandum indicating that all SHU inmates
should "receive their evening mcals in time for
properly breaking the fast. They should also be
ablc to receive the Id meals," rcferring to the
two special meals, thc Eid ul Fitr and the Eid ul
Adha. However, Ford was advised that SHU
prisoncrs wcre not allowed to receive the Eid ul
Fitr feast. Although Ford grieved the issue, he
was never served the Eid ul Fitr for Ramadan
that season.
Ford sued, claiming that "the rethsal to serve
him the Eid ul Fitr feast denied him rights
guaranteed under the Free Exercise Clause of
the First Amendment." The district court, in
granting summaryjudgment to defendants, relied
on the fact that, although DOCS Directive 4202
scts forth DOCS obligation to accol11l11Odate a
prisoner's religious practices, the postponed

Page 10

feast was not held pursuant to Directive 4202
but was held purswmt to Directive 4022, whieh
governs "Family Day Events." Since there is no
religious significance to "Family Day Events"
and since none of the Muslim clerics required
Muslim inmates to attend this DOCS sponsored
"Family Day Event," the court held the
defendant's "'did not viofate Ford's First
Amendment rights when they refused to provide
him with the January 15 Family Day Event
meal.", (citation omitted) The district court also
relied on thc testimony ofthree DOCS religious
authorities, one of whom testificd that th.~
religious urgency of the feast was within the
three-day window after the sighting of the new
moon, and beyond that, the feast beean1e a
family event. Another religious official testified
that '''[o]nce you move it, it's no longer a
religious day,'" and another testificd that
attendance at the feast was not mandated by
Muslim law.
The district court concludcd that, despite the
fact that '" Ford sincerely believes that
celebration ofthe Eid ul Fitr~inclllding the Eid ul
FitI' prayer and the Eid ul FitI' feast--is critical to
his observance as a practicing Muslim,'" the
defendants did not violate Ford's First
Amendment rights. The court held that summary
judgment was also appropriate because the
denial ofthe one meal was "a con~titutionallyde
minimis burden on Ford's free exerdsc of
religion" and that, regardless, "defendants were
entitled to qualified inll11unity" because they
relied on DOCS religious authorities, and it was
"objeetivcly reasonable for them to believe that
their refilsal to provide Ford the Eid ul Fitr feast
did not violate his constitutional rights."
The Sccond Circuit rcversed. It considered
three factors in analyzing Ford's Free Exercise
clain1: I)whcther the beliefs asserted were
religious and sincerely held; 2)whether the
challenged practice of the prison offIcials
infringed upon those religious beliefs; and

Pro Se VoL 14 No.2

3) whether the challenged practice ofthe prison
oflicials furthered some legitimate penological
interest.
Sincerity of Religious Belief

The Court first focused on the district
court's error in applying an "objective
reasonableness" test to Ford's religious beliefs.
The district court initially found that Ford's
religious beliefs were sinccrely held; however,
the district court "nevertheless held that Ford's
'individualized su~jective' beliefs [were] not
entitled to First Amendment protection in light
of the testimony of the DOCS religious
authorities that Ford's belief did not comport
with' Islam's actual requirements. '" The Second
Circuit stated: "By looking behind Ford's
sincerely held belief; the district court
in1permissibly confronted what is, in essence, the
'ecclesiasticalquestion' ofwhether, under Islam,
the postponed meal retained religious meaning."
Finding that "the opinions ofthe DOCS religious
authorities cannot trump the plaintiff's sincere
and religious belief," the Court held that "[f)or
purposes ofsummary judgment, we must accept
the district court's fmding that Ford 'sincerely
believes that celebration of the Eid ul
Fitr~inclllding the Eid ul FitI' prayer and the Eid
ul FitI' feast-[were] critical to his observances as
a practicing Muslim.",
Substantial Burden

With respect to the sccond factor, whether
the challenged practice of the prison officials
infringed upon Ford's religious beliefs, the
defendants argued on appeal that even if Ford's
religious beliet, were found to be sincerely held,
Ford's e1ain1 should still fail since the denial 0 f
one meal was not a "snbstantial burdcn" on his
First Amendment rights. The Court held:
"Insofar as the district conrt in1plied that in order

Pro Se Vol. 14 No.2

for a burden to be substantial the burdened
practice must be mandated by an adherent's
religion we disagree. Whether a particular
practice is religiously mandated is surely relevant
to resolving whether a particular burden is
substantial ... Ncither the Supreme Court nor
we, however, have ever held that a burdened
practice must be mandated in order to sustain a
prisoner's free exercise claim. Nor do we believc
that substantial burden can or should be so
narrowly defined." The Court elaborated: "To
confine the protection of the First Amendment
to only those religious pf"dctices that are
mandatory would necessarily lead us down the
unnavigable road ofattempting to resolve intraf!tith disputes over religious law and doctrine."
Ford clainled that he believed that the
celebration ofthe Eid ul Fitr feast was "'critical
to his observance as a practicing Muslim. '"
Although DOCS officials testified that, under
Muslinllaw, "the feast is not religious once it is
postponed," the Court held that such testimony
was not determinative because, "[r]egardless of
some religious authorities' interpretation of
Muslim law on the issue ... the mere
postponement of the feast" does not render
"Ford's insistence that the feast [was] critical to
his religious beliefs 'so bizarre ... as not to be
entitled to protection under the Free Exercise
Clause.'" Thus, the Court concluded the issue of
whether Ford's beliefs were "substantially
burdened" was a material question offact which
precluded summary judgment.
Legitimate Penological Goals

On appeal, the defendants raised, for the first
time, the argument that their conduct was
reasonably related to some legitimate
penological goal and thus, the fact that they may
have violated Ford's free exercise rights would
not amolmt to a constitutional violation.
However, the Court fonnd that although the

Page 11

defendants set forth various rationales for
denying Ford the meal, since none of those
arguments were made to the district court, "the
record [was] insufficient to resolve this fact- and
context- specific dispute." The Court
determined, "[i]n order to facilitate the nccessary
findings of fact and to give Ford an adequate
opportlmity to prove that the proflered interests
lack a rational relationship to the defendants'
conduct, the proper course [was] to remand."
Qualified Immunity

Finally, the Court addressed the issue of
qualified immunity. "Slmmlary judgment for
defendants on grounds of qualified immunity is
... appropriate 'only if the court fmds that thc
asserted rights were not clearly established or if
the evidence is such that, even when it is viewed
in the light most favorable to the plaintifl' [ ] and
with all permissible inferences drawn in [his]
favor, no rational jury could fail to conclude that
it was objectively reasonable for the defendants
to believe that they were acting in a fashion that
did not violate a clearly established right.'"
(citations omitted)
Both the district court and the Second
Circuit agreed that the right at issue was clearly
established. The Court quickly dismisscd
detendants argument that the specific right at
issue, the right for an inlnate to be providcd with
an Eid ul Fitr meal, ha~ never been addressed by
the Court. "Defendants are correct that we have
never had occasion to recognize a prisoner's
right to the Eid ul Fitr feast in partieular, but
courts need not have ruled in favor of a prisoner
under preciscly thc same factual eircumstance in
order for the right to be clearly established," the
Court held. Prior decisions of the Court have
clearly established that inmates have a right to
diets consistent with their religious beliefs, and
this case law makcs it "sufficicntly clear that
absent a legitimate penological justification...

Pagt~

12

prison officials' conduct in denying Ford a feast
imbued with religious import was unlawfuL" The
Court, however, parted ways with the district
court in its holding that it was reasonable for the
defendants to believe that they were not
violating Ford's constitutional rights. "Despite
the fact that all the religious authorities testified
to their beliefthat the postponed Ed ulFitr was
without religious significance, the proper inquiry
was always whether Ford's belief was sincerely
held and 'in his own scheme l?f things,
religious.'" The Court did not totally discount
the value to correctional personnel of religious
authorities' opinions, but cautioned that "the
religious authorities' opinioll5 that a particular
practice is uot religiously mandated undcr
Muslim law, without more, carmot render
defendants' conduct reasonable."
In McEachin, Mr. McEachin, a Muslim
prisoner, claimed that prison oflicials violated his
First Amendment right to free exercise of his
religion when they punished binI for refusing to
respond while praying after breaking his
Ramadan fast. McEachin also claimcd that the
punishmcnt, placement on the restricted "loat"
diet, violated his rcligious belie(~ because he was
unable to break his Ramadan fast each day with
properly blcssed food. The district court
dismissed McEachin's claim, holding that the
complaint failed to state a cause of action
because such action by prison ofllcials was a "de
minimis burden on his religion, rather than a
burden of constitutional magnitude." The
Second Circuit pancl disagreed.
Judge Calabresi, writing for the court,
stated: "First, McEachin asserts that the
seven-day restrictive diet imposed upon him as
discipline by the defendants impinged upon his
observance of Ramadan by depriving him of
properly blessed food with which to break his
fast. III addition, McEachin alleges that this

Pre Se Vol. 14 No.2

discipline was itself a product of religious
discrimination by a corrections ofliccr who
intentionally ordered McEachin to retUl1l his tray
and enp during McEachin's prayer, knowing that
the plaintifl's belicfs would not permit him to
respond to the command before he had finished
making salat. If these allegations are true, an
nnconstitutional burden may hav<~ been placed
on McEachin's free exercise rights." [5alat refers
to the five times each day Muslims are obligated
to pray.]
Thc Conrt found that McEachin's complaint
sufficiently allegcd that the prison ofl1cials had
"significantly interfered" \vith his religious
beliet:5, althongh the Conrt did not go so flU as
to decide the issue of whether, on remand,
McEachin would be rcquired to show a
"substantial" burden on his religious beliefs in
ordcr to state a constitutional claim. "Our cases
and those of other circuits suggest that the First
Amendment protects inmates' free exercise rights
even when the infringement results from the
imposition oflegitinlate diseiplinary measures,"
Judge Calabresi wrote.
Practice Note: When a court award,' summaryjudgment
to a party it means that the court has de/emtined that the
moving party is entitled to judgment as a mailer of law.
In rt.'viclfing w~y district court's grant of summary
jUii.gment. the Court ofAppeals must review the entire
record, must draw all factual infi!rences in favor ofthe
non-movingparty, and must determine lvhf,>ther there are
al:OJ gel1uin~::: issues f!lmaterialfactu,>hich lvould preclude
the granting (?fsummaryjudgment to the moving party.
When a court dismisses an action either sua sponte (on
its OW1~) or pursuant to a motion made by the opposing
party, it means that the court has decided that either the
plaintifr has not complied with certain procedural
reqUirements or that the complaint does not state a
claim. When the Second Circuit reviewed thefacts ofthe
cases set forth above, it found that in Ford, numerous
question. of fact existed which preclUiled awarding
summaryjudgment to d~fendants, andthat in McEachin,
the plaintiff' had set forth enough facts to support an
allegation that his First Amendment rights were violated

Pro Se Vol. 14 No.2

The Second Circuit Finds Hearsay Accusation
From the Victim ofAn Assault, Without More,
is Not "Some Evidence"
Luna v. Pico, 356 F.3d 481 (2d Cir. 2004)
Fcdcral courts require that a prison
disciplinary hcaring be snpported only by "some
evidencc." The "some cvidence" standard is
lower than that of the New York State courts,
which requires that a disciplinary hcaring be
supported by "substantial evidence," andk1r
lower than the evidentimy standard that prevails
in a crinlinal case, proof "beyond a reasonable
doubt." Indeed, the Supreme Court has held that
the "some evidence" standard will bc met iftherc
is "any evidence" in the record which could
support the condusion of the hearing ollicer.
Superintendent v. Hill, 472 U.S. 445 (1985).
The Second Circuit Court of Appeals has
recently modified that standard, in a way
favorable to inmates. It is not enough to affirm
a disciplinary hearing that there be "some
evidence" in the record to support the hearing
ollicer's fmdings, the Court reccntly held; rather,
there must be some reliable evidence. The mere
accusation of the victim of an assault, who
refuses to testily at a hearing, without more, is
not sulliciently reliable to constitute "some
evidence."
TIle facts of the case were these: In 1997,
two inmates were involved in a fight at Fishkill
Correctional Facility. A third, irunate Lopez,
tried to separate them and wa, stabbed in the
process. No corrections officer witnessed Lopez
being stabbed. The next day irmlate Luna was
served with a misbehavior report which stated
that Lopez had accused him ofthe stabbing. The
report was writtcn by ollicer Tucker.
A disciplinary hearing was held. At the
hearing, a letter from inmate Lopez, accusing
Luna of stabbing him, was introduced as
evidence. Lopez himself; however, refused to

Pagel]

testifY, and there was no other evidence
implicating Luna in the assault. The hearing
otlicer, Officer Pico, found Luna guilty and
sentenced him to two years 0 f SHU and
recommended that he lose two years of good
time.
Luna appealed the disposition and DOCS
reversed, finding that the evidence presented
failed to support the charges, and noting that the
hearing ollicer had failed to interview the author
ofth<~ misbehavior report.
A second hearing was held. Lopez again
refused to testily, but his letter was introduced
as evidcnce. Tucker, the author of the
misbehavior report, testified that an officer
named Fisher had spoken with Lopez and had
obtained Lopez's letter. Tucker testified that he
himselfhad never personally spoken with Lopez
and had "no idea" whether Lopez was telling the
tfilth. Otlicer Fisher was not called to testify.
Luna was again found guilty and tills time
sentenced to 18 months in SHU and 18 months
recnmmended loss of good time.
Luna again appealed and DOCS again
reversed. DOCS concluded that, since the
nlisbehavior report was not based on first-hand
observation from stall; further testimony from
the staff who conducted the investigation was
required. Luna was released from Southport
SHU into general population in June 1998.
Luna then sued the hearing ollicers in federal
court, arguing that they had convicted him
without sutlicient evidence to support the
convictions, in violation of his right to due
process of law. He sought damages for the tinle
he had been confmed in SHU.
The issue befilre the Court was whether
there was sutlicicnt evidence in thc record to
support the hearing oflicer's jjndings under the
"some evidence" standard. The Court tOlmd that
there was not. Although the Supreme Court had
held in 1-lin that the "some evidence" standard is
met when there is "any" evidence that "could"

Pag~

14

support the hearing officer's conclusions, the
Second Circuit concluded that the phrase "any
evidence" should not be construed literally.
Rather, the court found, reviewing its
precedents, "we have looked to see whether
there was 'reliable evidence' of the inmate's
guilt." Applying that standard here, the Court
found the evidence unreliable. It eonsisted of a
"bare accusation by a victim who then refused to
confirm his initial allegations."
Although Lopez clearly had been
stabbed, no apparent effort was made to
verif'y the charge that Luna was the one
who stabbed him, nor was any apparent
effort even made to evaluate Lopez's
credibility ... Nor docs the record show
that [the hearing officers] were presented
with any evidence that Turner or Fisher
or any other cOITections official made
any effiJrts to evaluate the truthfulness of
Lopez's allegations.
The Court did not, however, go so far as to
say that a victim must testify in a prison
disciplinary proceeding before an accused inmate
<;an be found guilty of assault. On the contrary,
the Court noted that "[t]he reluctance ofa victim
to testify against his alleged assailant eaunot be
allowed to interfere with an institution's ellort to
maintain order and security." Nevertheless, the
Court continued,
prison officials would not be unduly
burdened by the requirement that they
engage in some examination of factors
that may bear on a vktim's credibility,
just as they arc required to independently
assess information provided by a
confidential informant.
Since that did not happen in this case, the
Court concluded, Luna's right to due process

Pro Se Vol. 14 No.2

had been violated. Nevertheless, the Court
declined to grant damages, holding that the
hearing officers were entitled to qualified
immunity because they could not have known,
prior to the Court's decision, that their actions
had violated Luna's rights.

Second Circuit Takes Small Steps on PLRA
Richardson v. Goord, 347 F.3d 431 (2d Cif.
2003)
Mojias v. Johnson, 351 F.3d 606 (2d Cir. 2003)
DeLeon v. Doe, 361 F.3d 93 (2d Cir. 2004)
Ziemba v. Wezner et at, 2004 WL 870476 (2d
Cir. April 23, 2(04)
The Prison Litigation Refonn Act, passed in
1995, has become, without doubt, the greatest
single barrier to inmates trying to get their cases
hcard in Fcdcral Court. The greatcst barrier is
the so-called "exhaustion requirement." This
section ofthe PLRA f(~quircs imnates to exhaust
"available" administrative remedies before they
may hring a lawsuit in federal eourt eoncerning
prison eonditions. See 42 U.S.C. § I997e(a).
Questions abound about the requirement: What
is an "available" administrative remedy? Must an
inmate make use of the formal grievanee
proet)dure made available by DOCS, or are lcss
iormal means of putting a complaint before
prison oflieials also acceptable, for exhaustion
purposes? And if the former, who decides
whether the grievance procedures have been
properly carried out? DOCS or the courts?
These and other questions eoneerning the
exhaustion requirement have plagued imnates
and the courts for several years now, with
various district court judges ollering a range of
different answers, depending on the
circumstances of eaeh casco The Second Circuit
Court of Appeals has not yet given a definitive
answer to many of these questions.

Pro Se VoL 14 No.2

Last Spring the Second Circuit consolidated
five cases raising various exhanstion issues and
asked Prisoners' Legal Services, the Prisoners'
Rights Project of the Legal Aid Society, and a
private firm to represent the inmates. The
implication was that the Court wonld attempt to
settle some of the many outstanding questions
regarding exhaustion under the PLRA. Briefing
of the cases was completed in the fall and oral
argument oecurred in May 2004. Hopefully
there will be a decision resolving some of these
exhaustion issues before the end ofthe summer.
In the meantime, however, the Court has
addressed several less significant questions about
the PLRA which had previously been undecided
in this Circuit. Wc addrcss those questions
below.
In Richardson v. ,(10ord, the Conrt held that
the exhaustion requirement was not
jurisdictional. This is important for several
reasons. "Jurisdiction" rcfers to the ability of a
conrt to hcar a ease. The jurisdiction ofcourts is
usually established by statutes. Some courts are
limited in jurisdiction to particular telTitories,
others are limited in jurisdiction to particular
types of claims. Federal Court jurisdiction, for
example, is limited, in part, to snits that raise
claims that arise under the laws or Constitution
of the United States. If the exhaustion
requirement were jurisdietional, it would mean
that federal courts could not entertain a lawsuit
absent initial proof of exhaustion. However,
Richardson now establishes that exhaustion is
not jurisdictional, whieh means that the courts
may consider a number of defenses to nonexhaustion, including, for example, that various
acts of the prison officials prevented the inmate
from exhausting administrative remedies, or that
the defendants failed to raise exhaustion as an
"affirmative defense" in their complaint.
In Moiias v. Johnson, the court reiterated a
point that it had made in a previous ease: befbre
dismissing a prisoner's case for failure to exhaust

Page 15

administrative remedies, a district court must
first determinc, from a "legally sufficicnt
sourcc," whether an administrative rcmedy was
actually "available." The plaintfff in Mojias was
a New York City inmate who alleged that
excessive forcc was used against him by guards.
On the form providcd to him by thc court to
submit with his lawsuit, Mojias wrote "Ycs"
next to a qucstion asking hinl whcther his
institution had a grievance proccdure. He then
wrote "No" next to another question asking
whcther he had presented the facts of his
complaints "in the state prisoner gricvanee
procedure." The district court dismissed his
complaint withont giving hinl notice or an
opportnrnty to be heard, holding that the
complaint "on its f\l(~e states that there are
administrative remedies that the plaintifffililed to
exhaust."
On appeal, Mojias pointed out that he was a
New York City inmate, and the question on the
form had asked him if he had made a complaint
in the state prisoner's grievance procedure.
Moreover, he pointed out, city regulations
specifically list excessive force as one type of
complaint that is "non-grievable." Thus, his
answers on the form wcrc correct. Had the
district court given him notice and an
opportunity to respond, he would have
demonstrated that thcre was no "available"
grievance procedure tor his type ofcomplaint in
New York City systcm.
The Second Circuit agreed, and repeated its
admonislmlcnt to thc district courts that thcy
must dctermine whcthcr an administrative
remedy was available from a legal~y s14ficienl
source, such as the institution's directivcs or
regulations. The Court held that a pro se
complaint t(lfl11 like the one filled out by Mojias
is not a "legally sufficient source." The court
also held that, unlcss it is "Ullmistakably clear"
that a district court lacks jurisdiction or that the
complaint lacks merit or is otherwise defcctive,

Page 16

it is "bad practice" for the court to dismiss a
complaint without aflording the plaintiff an
opportunity to be heard in opposition.
In DeLeon v. Carpenter, the court addressed
another aspect of the PLRA, the so-called
"three-strikes" rule. The ''three-strikes'' rule
refers to a provision of the PLRA which
provides that, if a prisoner has "on three or more
prior occasions ... brought a federal action ...
that was dismissed on the grounds that it is
fiivolous, malicious, or fails to state a claim," he
may not bring any future federal action in forma
pauperis, that is, as a poor person. In other
words, he would have to pay the full filing fee
for his action up front. (See 28 U.S.C. §
1915(g)) The question before the court in
DeLeon was, who decides whether an action is
frivolous or malicious or fails to state a claim? In
Deleon, the inmate had brought a claim arguing
that prison officials had deliberately delayed
mailing various submissions in an ongoing
federal action, causing him to miss a court
dcadline, and that they had sent to the wrong
city a birthday card he had written to rclatives.
The district court dismissed his clainl as
frivolous and also entered a "strike" against hin1
IIIlder the ''thr(,'C strikes" rule.
The Second Circuit agreed with the district
court that the inmate's clain1 was frivolous, but
disagreed that the court had the right to impose
a "strike." The Court pointed out that the
designation of a strike has no practical
consequence until some future defendant, in a
suit brought by the inmate, argues that the
prisoner's suit may not be maintained in forma
pauperis because he has accumulated three or
more prior strikes. It should be at that time, the
Second Circuit held, that the court hearing the
new suit should review the prior cases to
determine whether the prisoner should be
charged with strikes. District courts should not
issue strikes "one-by-one" as they dispose of

-

Pro Se Vol. 14 No.2

suits that may ultin1ately - upon a dctcrmination
at an appropriate time - qualil}i as strikes.
Finally, in Ziemba v. Wezner, et. aI., the
court addressed the issue of whether "estoppel"
may be asserted as a defense to the exhaustion
requirement ofthe PLRA. The plaintiff; Zicmba,
alleged that the st<lte of Connecticut failed to
protect him and as a result he was stabbed by
another inn1ate. After being stabbed, he was
allegedly denied medical care, threatened by
prison officials, intimidated with police dogs,
beaten, sprayed with pepper spray, placl~d in
four-point restraints, and again denied medical
care. After he filed his complaint, the State made
a motion to dismiss, claiming that Ziemba had
failed to exhaust his administrative remedies.
Ziemba responded by claiming that the State
should he precluded from raising the exhaustion
defense beeause the State had prevented Ziemba
from exhausting by "beating hinl, threatening
him, denying him grievanee forms and writing
implements, and transferring hin1 to another
prison." The lower court granted the state's
motion and dismissed Ziemba's eomplaint.
Ziemba appealed.
Prior to Ziemba, the Seeond Cireuit had not
had the opportunity to address the issue of
whether estoppel should be a permissible
affirmative defense to exhaustion. The eourt
looked to the Fifth Circuit decision in Wright v.
Hollingsworth, 260 F. 3d 357 (5 th Cir. 2001) f()r
guidanee. In Wright, the Fifth Circuit held that
the PLRA exhaustion requirement "may be
subject to certain defenses such as [] cstoppel."
In his appeal, Ziemba c1ain1ed that his inability to
exhaust his administrative remedies "was a direct
result of the defendants' actions." The Second
Cireuit fOlllld such a Clainl amounted to a c1ain1
of estoppel and that "[a]s a matter of first
impression in this circuit we hereby adopt the
holding of Wright [] and hold that the aflirmative
defense of exhaustion is subject to
estoppel."(citation omitted) The Court ordered

Pro Se Vol. 14 No.2

that the case be scnt back to the district court,
where it "must allow factual development and
address the estoppel claim at the summary
judgment stage."
Intcrestingly, Ziemba also argued that, in the
alternative, he did exhaust becausc his h'lmily
made nnmerous complaints to the FBI and therc
was a subsequent FBI investigation. The Court
refused to decide this issue, but noted that '\ve
have recently appointed counsel in a group of
cases to test the limits of unconventional
exhaustion, which, when decided, may prove
relevant to thc district court's analysis of
cxhaustion on remand." The Court was refcrring
to the five cases referenced above which will be
argued in May 2004,
Whilc caeh of these cases reprcsents a small
step, they are at least steps in the right direction:
they suggest that the Second Cireuit Court of
Appeals is paying dose attcntion to various
provisions o I' the PLRA and is willing to prevent
some of its harsher inlplieations.

Disciplinary
Contraband: PIIOtOgr/lphs, Appr(Jved at One
Facility, Found to Constitute Gallg-Related
Material at Another
Mattcr of DeLos Santos v. Goord, 772
N.Y.S.2d 615 (3d Dep't 2004)
Petitioner Jose DeLos Santos was found
guilty in a Tier III hearing of possessing
unauthorized gang-related material. The
misbehavior report stated that, willie processing
DeLos Santos' property upon his transfer from
another faeility, prison offieials confiscated
various photographs from his photo album

Page 17

containing gang-related hand gestures and
statements written on the back. The court found
that the photographs, in combination with the
testimony of a sergeant trained in such matters
who ideutificd thc signs and statements as gangrclated, providcd substantial cvidcncc of the
petitiofi()r's guilt. DcLos Santos argued that the
material could not constitute contraband becausc
the photos had either bccn taken by prison
oflkials at his prior facility or had been passed
through the facility's mailroom before being
givcn to him. The court rejected this argumcnt,
stating simply, "such gang-related material is
c1carly prohibited by thc prison disciplinary
rulc."

Drug Testing: No Right to Submit Results of
Polygraph or DNA tests in Di5ciplillary
Hearing
Matter of Jackson v. Smith, 775 N.Y.S.2d 611
(3d Dcp't 2004)
Petitioner, Jaekson, an imnate, was charged
with and fimnd guilty of using controlled
substances after his urine sample tested positive.
After an unsuecessful administrative challenge,
Jackson filed an Article 78 alleging, among other
things, that DOCS erred in failing to allow him
to submit the results of outside tests that
apparently might have proved his llmocence. The
court found that "[t]hcre is no provision in the
law or in the pertinent regulations giving an
inmate the right to submit the rcsults of
poIygraph tests or outside DNA laboratory tests
in a prison diseiplinary hearing." Jackson also
o~jccted to being denied the opportunity to
submit tcstinlony by his wife and an outside
DNA specialist that related to this testing. The
court found that "[t]o the extent that the
proposed testimony ofpetitioner's wife and the
DNA specialist related to tills evidence, such
testimony was irrelevant and properly excluded."

Page 18

Grooming Standards: InmateAllowedto Wear
Braids Below Hairline
Matter of Uhura Allah v. Goord, Index No.
3150-03 (Sup. Ct. Alb. Co., November 7, 2003)
(Lamont, J.)
Petitioner, an inmate, who wears his hair in
braids, was charged with violating a direct order
based upon his refusal to remove his braids. That
charged was dismissed. Two months later, he
was charged again, based upon his refusal to
remove his braids when ordered to do so. That
charge resulted in a guilty fmding. Petitioner
filed a grievance regarding DOCS' interpretation
ofDirective 4914, Inmate Grooming Standards.
The grievanee was ultimately denied. Petitioner
sued, requesting that his disciplinary disposition
be vacated and annulled, and challenging the
deeision of the Central Oft'ice Review
Committee (CORC) on his grievanee.
Directive 4919 sets forth basic hair grooming
standards and states, in pertinent part, that
"[h]air may be permitted to grow over the ears
to any length desired by the inmate. The
cornrow style is allowed." Petitioner claimed
that Direetive 4914 does not explieitly prohibit
eomrows braided below the hairline. His
argument was supported to some degree by the
fact that, at his first diseiplinary hearing, the
hearing offieer, in dismissing the eharges, fOWld:
"The reason for this di~'P0sition is that from
Direetive 4914 and a Franklin Correctional
Faeility CORC deeision, it is not clear that
inmate Allah's two braids are in any violation
whatsoever. Until this issue is resolved, I cannot
find inmate Allah guilty of not taking what may
be a legitimate hairstyle apart."
The Inmate Grievance Resolution
Committee (IGRC) was unable to eome to a
Wlaninlous deeision on petitioner's grievanee;

Pro Se VoL 14 No.2

the staff members fOWld that the grievance
should be denied because "Direetive 4919 makes
no provisions for inmates to wear braided hair
exccpt for com rows," and stated that inmates
must possess a "valid court order" to wear their
hair in braids. The inmate representative
members of the IGRC came to a different
conclusion. Thcy found that "[g]rievant's hair is
neat and in a eornrow style but there appears to
be a discrepancy regarding whether Afriean
Americans can wear their hair in the eornrow
style when their hair exceeds the hairline." The
Superintendcnt accepted the staff
recommendation and the Central Office Review
Committee (CORC) agreed with the
Superintendent, finding that braids are not listed
as an allowable hairstyle in Directive #4914 ..."
The court found for pctitioner. The court
noted: "The right to wear one's hair at any
length or in any distinctive manner has becn
recognized a~ a right of personal freedom
protected by the United States Constitution,
however, such right may be limited by
reasonable regulations created by prison
authorities." The eourt then looked to the
dictionary defmition filr "comrow" and fOWld
the following: "cornrow: To style (hair) by
dividing into seetions and braiding close to the
sealp in rows." The eourt granted the
petition,holding that: "Directive 4914 does not
explicitly and specifically prohibit eornrows
below the hairline (and can be reasonably and
rationally interpreted to implicitly allow such a
hairstyle." The eourt found that to hold
otherwise "would mean that inmates who wear
their hair in the cornrow style and who pemlit
their hair 'to grow over their ear to any length
desired' are required to have their cornrow
braids end at their hairline and transition into
natural unbraided hair."

Pro Se VoL 14 No.2

Inadequate Employee Assistance and Denial
of Witness: Claims Dismissed
Matter of Claudio v. Selsky. 772 N.Y.S.2d 424
(3d Dep't 2004)
Petitioner Claudio was found guilty of
refusing to obey a direct order, based on charges
that he refllsed an order to keep his hands in his
poekets while being escorted from his cell. The
cvidcnce consisted ofthe misbehavior report and
the testimony of two corrections oflicers who
witnessed the incident. Claudio filcd an Article
78 procceding, arguing that he had been denied
adequate employec assistance and improperly
dcnicd the right to present several witncsscs.
Thc court rejected both arguments.
With respect to Claudio's claim that he was
denied adequate employec assistance, the court
found that he was freely provided access to all
relevant witnesses and documents to which he
was entitled and he Jailed to show any prejudice
that resulted because of the alleged inadequate
assistance. His attcmpts to present a defensc that
he was assaulted by the oflicers was, the court
Jound, irrelevant to the question of whether he
had obeyed lawful orders.
Nor, according to the eonrt, was he
improperly denied witnesscs. Although some
witnesses refused to testilY, the court was
unpersuaded by Claudio's claim that the hearing
ofliccr should have personally authenticated thc
reasons given by the inmates who refused. Each
signed a witness refusal foml which, the court
found, adequately explained their absence.
Insufficiency of Misbehavior Report
Matter of Sabater v. Selsky. 772 N.Y.S.2d 733
(3d Dep't 2004)
Petitioner Sabeter was found guilty of
tmauthorized use of a controlled substance aJler

Page 19

his urine twke tested positive for cannabinoids.
In his Article 78 proceeding, he argued that the
misbehavior report was deficient because the
reporting oflicer failed to write the word
"cannabinoids" when indicating the results ofthe
second test. The court noted that the
misbehavior report stated that the first test was
positive for cannabinoids and the second test
"also proved positive." Furthermore, the testing
result forms, which were served on petitioner at
the same time as the misbehavior report,
specifically stated that both tests had been
positive for cannabinoids. Thus "inasmuch as the
results of the second ... test could be gleancd
from the misbehavior report ,md attached
forms," its omission from the report itself did
"not require annulment of the detennination,
particularly where . . . petitioner failed to
demonstrate any prejudice therefrom."

Ojf-The-Record Conversation: Not Error
When Sole Purpose Was to Determine if
Testimony Would be Relevant
Matter of Gilchrist v. Poole, 771 N.Y.S.2d 451
(4th Dep't 2004)
Title 7 NYCRR §254.5(b) provides that, in
a Tier III hearing, "any witness shall be allowed
to testify at the hearing in the presence of the
inmate unless the hearing oflieer determines that
so doing will jeopardize institutional safety or
correctional goals."
In this case, the hearing oflieer held an offthe-record conversation with one of the
petitioner's prospective witnesses to detennine
whether he had any relevant testinlOny. Atler
being found guilty, the petitioner challenged the
hearing, arguing that the hearing officer's
conversation with his witness had violated
§254.5(b) and his right to have the witness
testily in his presence. A lower court agreed
with the pctitioner and the state appealed.

PageW

The Appellate Division reversed. The court
found that §254.5(b) only concerns witnesses
who are called to testify at a hearing. Here, thc
court found, "the Hearing Offieer was merely
making a preliIninary determination whether the
testimony of the prospeetive witness was
relevant." So long as the record adequately
demonstrates that the witness did not have
relevant tcstimony, there was no need for the
hearing offieer to make that determination in the
inmate's presenee.

Off-The-Record Conversation: Error When
Hearing Officer Speaks With Drug Testing
Company's Technical Expert
Matter of Lopez v. Selsky, 772 N.Y.S.2d 884
(3d Dep't 2004)
In this ease, the petitioner challenged a
disciplinary hearing in which he had been found
guilty, aftcr a urine test, of using a controlled
substance. He claimed in his defense that the
test-result was a false positive due to his use of
prescription and over-the-eounter medications,
and he submitted documentary evidence in
support ofhis claim. The hearing officer callcd a
technical expert trom the company that made the
urine testing kit and, after speaking with thc
expert, rejected petitioner's claim and found him
guilty. The court reversed and ordered a new
hearing, for two reasons.
First, the court found, the hearing officcr had
prevented the court from reviewing the
petitioner's documentary evidence by failing to
preserve it as part ofthe reeord. Moreover, the
hearing officer's conversation with the technical
expert was not recordcd, and the petitioner was
excluded from the room during the conversation
in violation both of7 NYCRR §254.5(b) and the
pctitioner's due process rights. "Because the
determination was clearly based in part on this

Pro Se Vol. 14 No.2

off-the-record information," wrote the court, "
a new hearing is required."

Res Judicata: Prohibits New Disciplinary
Charges When Original Charges A"e
Dismissed
Matter of Hernandez v. Selsky, 773 N.Y.S.2d
178 (3d Dep't 2004)
Res Judicata is a Latin phrase which means
"the matter has already been decided." In the
law, it is a legal doctrine which prohibits a party
from litigating the same issue over and over
again. Tn this case, the court held that DOCS
was prohibited by res judicata from bringing a
second set of disciplinary charges against an
inmate over an incident for which the inmate had
been found "not guilty" in an earlier hcaring.
Following an incident at Sullivan
Correctional Facility in November of 2000,
petitioner Hernandez was charged with
assaulting an inmate and possession of a
weapon. Evidence at the hearing included a
statement from the vietim of the assault, saying
that Hernandez was not the a&'>ailant. Hernandez
was found not guilty and the charges were
reversed. Approximately one year later, pri~on
personnel intercepted a letter from the victim
which they interpreted as implicating Hernandez
in the assault. 1bey then filed a second
miSbehavior report against him, charging hinJ
with the same rule violations for whieh he had
previously been found not guilty. At the new
hearing, the victim again denied that Hern:rndez
was the assailant and stated that DOCS wa~ misinterpreting his letter. Hernandez wa~ found
guilty nonetheless. He then challenged the
hearing on the ground that it violated the
principle of res judicata.
In court, DOCS argued that the second
hearing was permissible under an exception to
the res judicata rule, which allows t(Jr new

Pro Se Vol. 14 No.2

=

hearings when there is newly discovered
evidence. The Court disagreed. The exception to
the doctrine should be narrowly construed, held
the Court, and should apply only where the new
evidence is of such "importaut, material" sort
that a departure fi-OIn the general application of
resjudicata is justified. In this case, the victim's
letter was ambiguous and the victim oflbred an
explanation ofthe letter that was consistent with
his statements at both hearings that Hernandez
did not assault him. While the letter may have
provided some evidence impeaching the victim's
credibility or may have been otherwise relevant
to the charges against Hernandez, it was not the
sort of "important, material" new evidence to
justify overriding the principle of res judicata.

Substantia[ EI,itlence: Reasonable Inference of
Possession When Contraband is Found In
Area JJ!ithin Inmate's Control
Matter of Alston v. Goord, 771 N. Y.S.2d 919
(3d Dep't 2004)
In our last issne, we reported the case of
Matter of Price v. Phillim, 770 N.Y.S.2d 882
(2d Dep't 2003), where the court found that
there was insuffIcient evidence to connect the
petitioner to contraband fOlmd in a pill casc
adjaccnt to the petitioner's cell because,
although accessible to the petitioner, the pill case
was also aceessible to other innlates. (See Pro
Se Vo!. 14, No. I, p. 15). In Alston, the Court
came to a different conclusion. Petitioner Alston
was charged with possession of a weapon,
contraband, and unauthorized exchange of
property. The eontraband was fimnd inside of
petitioner's cell, inside a loeker. The Court
found that "[a]llliough other inmates had access
to petitioner's locker, a reasonable inference of
possession arises whcn contraband is fonnd in an
area within an innmte's control" and Alston's
"assertion that the weapon could have been

Page 21

planted by another inmate" merely raised a
question of credibility properly determined by
the hearing 0 ffIcer.

Substantial Evidmce: Absent Afore, Hearsay
Allegations Are Not Substantia[ Evidence
Matter of Luna v. Department of Correctional
Serviees, 772 N.Y.S.2d 417 (3d Dep't 2004)
"Hearsay" is a legal tenn which refers to
statements nmde outside of a hearing or trial
which arc rcpcatcd by someone elsc at the
hearing. For example, if a correction oflicer
testifies at a hearing that Inmate X told him tlmt
Inmate Y assaulted him, but X refuses to appear
at Y's disciplinary hearing, the correction
oflicer's statement is considered hearsay.
Hearsay is considercd less reliable tlmn actual
testimony, largely because the "hearsay
declarant" - the person who's statement is being
repOlted - is unavailable to be cross-examined or
confronted about the statement. Nevertheless, it
is well-settled that hearsay is admissible in a
prison disciplinary proceeding, provided that the
record contains some basis upon which the
hearing officer can determine that the statement
is credible and reliable. In some cases, this may
mean that the hearsay is corroborated by other
direct evidence. In other cases, it UJay be enough
if the hearsay is sufficicntly "detailed and
specifie" that it is unlikely to be false. Wlmtever
the case, the record must contain some basis
upon which the hearing offieer could reasonably
rely on the hearsay statement.
In this case, petitioner Luna was charged
with having assaulted another inmate. The
misbehavior report was based upon a correction
officer's interview willi the victim ofthe assault,
during which, according to the correction
oflicer, the victim identified Luna as his
assailant. At the hearing, however, the victim
refused to testifY; an earlier memorandum stated

Pm Se Vol. 14 No.2

Page 22

that he didn't know who had assaulted him.
Luna was nevertheless found guilty, based solely
on the hearsay allegation in the misbehavior
report.
The court reversed the hearing. In gencral,
the court acknowledged, "a hearsay misbehavior
report can constitute substantial evidence ... so
long as the evidence has sufficient relevance and
probative value," and, moreover, "the author of
a misbehavior report need not personally witness
the misbehavior, provided he or she ha~
investigated the incident and ascertained the
facts ..." In this case, however, neither the
correction officer who authored thc report, nor
the victim, testified at Lnna's hearing. Thus, the
court was "left with a three-sentence
misbehavior report reciting nothing more than
[the victim's] accusation that [Luna] struck him
an assertion contradicted by other
documentary evidence in the record and entirely
unsupported by any testimonial evidence."
Under such circumstances, the court concluded,
the misbehavior report "does not constitute
substantial evidence of petitioner's guilt."
Accordingly, the hcaring was reversed.

take place. After this happened, the hearing
officer asked Blackwell if his assistance was
complete, to which he replied, "Yes, it is." The
Court found that the hearing officer's actions
"remedied whatever defects existcd in the
prehearing assistance," and furthermore that the
petitioner failed to demonstrate that he suffered
any prejudice. The Court then noted that "by
failing to raise appropriate objections at the
hearing, petitioner waived his claims oferror" in
regard to the denial ofwitncss and documentary
evidence clain1.~.
Petitioner claimed that, in the second
disciplinary hearing, the misbehavior report wa~
insufficient and thus failed to providc him with
adequate notice of the charges. The Court
summarily rejected this claim, finding that
"[p]etitioner raised no objection in this regard at
the disciplinary hearing." With respect to both
hearings, howevcr, the Court held that were it to
reach the issues raised by petitioner Blackwell,
it would have found them to be without merit.
Practice Note: It is important to place your objections on the
record and to repeat them on your administrative appeal in
ordt?r to preserve such issuesfor later court review, shou/dyou

decide to challenge your hearing.

Waiver: Failure to Object Result~ in Innwte's
Waiver ofProcedural Errors
Matter of Blackwell v. Goord, 772 N.Y.S.2d
761 (3d Dep't 2004)

Criminal COllrt
Petitioner Blackwell challenged the
disposition of two disciplinary determinations
alleging various procedural errors. With respect
to the first hearing, petitioner Blackwell claimed
that he was provided ineffective employee
assistance and denied his right to call witness
and present documentary evidence. The Court
fotmd that, with regard to the employee
assistance issue, when the hearing officer
became aware of Blackwell's allegations, he
adjourned the hearing until such interviews could

Court Challenge Results in Criminal Court
Judge Withdrawing Impermissible Sanction
Briggs v. Grosso, Index No. 2003-10275 (2d
Dep't 2003)

Mr. Briggs, an inmate, filed a pro se motion
to vacate the judgment of his conviction
pursuant to CrinJinal Procedure Law (CPL)
§440.J O. Criminal Court Judge Grosso denied

Pro Se Vol. 14 No.2

Brigg's motion, and finding it to be "baseless
and frivolous," imposed a one hundred dollar
sanction. Judgc Grosso ordcred that this
sanction be withdrawn from Mr. Brigg's inmate
account on a monthly basis.
While the imposition of sanctions for
frivolous litigation is permissible in varions civil
actions, there is no authority that pcrmits them
in criminal proceedings. It has long been held
that "costs are not awarded in actions or
proc,ecdings conducted undcr the criminal code,"
People v. Three Barrels Full et aI., 236 N.Y.
175, 177(1923), and this has been more recently
affrrmed in People v. Vonweme, 155 Misc.2d
311, 588 N.Y.S.2d 533 (N.Y. Co. Crim. Ct.,
1992). Because the imposition ofthe sanction on
Mr. Briggs was impermissible, PLS attempted to
resolve the matter through Icttcrs and phone
calls to Judge Grosso and the District Attorney's
officc. When these attempts were unsuccessful,
PLS filed an Article 78 petition in the Appellate
Division, Second Department, on Mr. Briggs'
behalf. The Article 78 petition alleged that the
respondent, Judge Grosso, had exceeded his
authority 111 imposing the sanction.
Subsequcntly, the respondcnt agreed to
withdraw the illegal sanction and the case was
dismisscd.
Practice Note.' Pursuant to CPLR §7804 ami §506(b), this case
was brought in the Appellate Division because the proceeding
was against ajus/ice of/he Supreme Court

Guilty Plea Foryeits Alleged Pre-Plea Error

People v. Ross, 2004 WL 962913 (3d Dep't
May 6, 2004)
Defendant Ross, an inmate at Elmira
Correctional Facility, after being found with a
single-edged razor blade and charged criminally,
servcd a vlritten notice on the District
Attorney's office of his intent to testifY before

the grand jury. Although defendant Ross was
assigned an attorney and was present in the
courthouse the day the grand jury convened, he
did not testifY, At his arraigmnent, he argued
that defense counsel had prevented hun from
testifYing before the grand jury because his
counsel refused to procure a letter from Ross'
disciplinary file, which Ross clauned was critical
to hLs testimony. Defendant Ross was assigned
new COlIDSC1, who made a motion to dismiss the
indictment based upon insufficient evidence,
failure to provide adcquatc grand jury notice,
and ineffective assistance ofcounsel. The motion
was denied and defendant Ross entered a plea of
guilty to attempting to promote prison
contraband; he was sentenced to 1Y, to 3 years
in prison, Defendant Ross then moved
unsuccessfully pursuant to CPL §440.10,
seeking to vacate thc conviction on the grounds
ofinetlective assistance ofcounsel and denial of
due process,
On appeal, the court fClUnd that "[t]o thc
extent that defendant's argument can be
construed to be that the alleged h'lilure [of
counsel to obtain the requested letter]
undermined the voluntariness of his guilty plea,
it survives that plea." However, the court
rejected that argument, finding that the
defendant had "entered a knowing, voluntary
and advantageous guilty plea after County Court
entertained and denied his motion to dismiss the
indictment, which was based in part on counsel's
h'lilure to procure the letter." The court went on
to add that the defendant failed to meet his
burden of demonstrating that this single error
was significant enough to deprive him of
meaningful representation in any way which
would "cast any doubt on the voltmtariness of
his plea" because he did not produce the letter or
"describe its content," and thus made no
showing as to the impact it might have had on
his indictment. Finally, the court held that the
defendant forfeited any claims he may have had

Page 24

concerning "preplea error" when he entered his
guilty plea.

Court of Claims
Jurisdiction: Notice of Claim Must be Filed
Within 90 Days ofIncident
Matter of Rivera v. State of New York, Claim
No. 105785, Motion No. M-65806 (Lebous, J.)
In order to file a Claim against the State for
money damages in the Court of Claim~, you
must serve a "Notice ofIntention" to sue upon
the Attorney General within 90 days of the
incident about which you wish to sue. Failure to
do so willlikcly result in dismissal ofyour claim,
as happened in this case.
Here, it was uncontested that the claimant
had failed to serve his Notice ofIntention within
90 days ofthe date ofthe incident. The claimant
argued that his h'lilure to timely serve his Notice
ofIntention was due to the facility's mailroom's
delay in processing his legal mail. The court
rejected this claim. Although misfeasancc or
malfeasance on the part of facility officials may
be a proper excused for failure to timely filc, in
this case, thc clainlant (according to the court)
"tailed to demonstrate that the mailroom delay
arose out ofany omissions or malfeasance on the
part of the facility's mailroom personnel."
Consequently, the claim was dismissed.
Practice Note: (Hien inmates do not know about this 90~day
deadline and so they do not get their Notice oflntention to File
a Claim served in time. As a result, they are not permitted to
file their claim or have their case heard by the Court of
Claims. Ifyou have missed the 90-day service date, you can
apply to the Court for permission to file a late claim. The
Court often grants permission when it believes the claim to be
meritorious. However, there are various deadlines involved in
making the application for permission to file a late claim. Jj
you are claiming medical and/or dental malpractice, you must
make this application within ru,'Q and one-halfyears ofthe date
of the accrual of your claim. 1/ you are claiming personal
injury based upon a theory of simple negligence, you must

Pro Se Vol. 14 Ng. 2

make this application within three years afthe incident about
which you are filing the claim. False imprisonment claims,
intentional personal injury claims, and constitutional torts
must befiledwithin oneyearfrom the date afthe incident. With
regard 10 allproperty claims against !X)C,)', all administrative
remedies must he exhausted before a claim can befiled in the
Court of Claim. A property claim must be JUed and served
within 120 days after the date on lvhich administrative
remedies were exhausted. You must be prepared to submit the
Claim itself at the same time you make your request for
permission to file late.
For more information on how to file an action in the State
Court o.fClaims, request PLS's manual "How to Hie a Claim
in the Court of Claims. " For further information on how 10
seek permission 10 file a Latc Claim, request PLS's
"Late Claim" memo.

Unlawful Imprisonment: Inmate Wins Claim
After DOCS Rifuses to Implement Willard
Sentence
Bratton v. State of New York, Claim No.
107763 (Collins, J)
A number of courts have chastised DOCS
over the past several months for failing to tullow
the tefnlS of commitment orders, the orders of
the scntencing court spccifYing the sentence to
be imposed on an inmate. In such eases, DOCS
concluded that the sentence imposed by the
sentencing court was iIIcgal and subsequently
imposed what it believcd was the correct
scntence; in most instances, DOCS inlposed a
sentence harsher than the original sentence. For
instance, in Murray v. Goord, 769 N.Y.S. 2d
165 (2003), (previously reported on in Pro Se
Vol. J4 No. I), the inmate received aconcurrcnt
sentence, but DOCS felt that the law required it
to run the sentence consecutively. Thc Court of
Appeals, reversing DOCS, reminded DOCS that
it is "conclnsively bound" by a commitment
ordcr, regardless ofwhether it feels the order is
illegal. The proper remedy for an illegal sentence
is for DOCS to ftle a 440 motion. In Murray, the
Court ofAppeals made it clear that DOCS' only

Pro Se Vol. 14 No.2

valid option is to comply with thc commitment
order as writtcn.
In Bratton v. State ofNew York, the Court
of Claims granted an inmate's claim that he had
been su~jected to unlawful imprisonment by
DOCS when DOCS refused to impose a
"Willard" sentence, as specified in the inmate's
commitment order. A "Willard" sentence is an
alternative senteuce available to certain drug
offenders under Crinunal Procedure Law §
410.91. Under such a sentence the offender
receives an indeterminate tenn of incarceration
and is sent to a DOCS reception center; but,
instead of serving the tenn, he is then remandeAl
to the custody of the Division of Parole to
complete an intensive drug treatment program.
If the inmate successfully completes the
program, he becomes eligible for early parole. It
is kuown as a "Willard" sentence because thc
Division of Parolc's dmg treatment program is
locatcd at the Willard Drug Treatment campus.
Larry Bratton pled guilty to a dmg oflense in
exchange for the promise ofa Willard sentence.
In accordance with his plea agreement, the court
sentenced him to an indeterminate term of3 Yz to
7 years, "replaced by Willard Supervision."
Upon his receipt in DOCS, however, DOCS
concluded he was ineligible for Willard because
he had previously been convicted of a violent
felony. Consequently, instead ofrernanding binI
to the Division of Parole, as required for a
Willard sentence, DOCS imposed the 3Yz to 7
indetemlinate sentence.
Bratton filed a habeas eorpus proceeding.
The court conclnded that DOCS had no
authority "to conduct its own review of a trial
court's sentencing order and to simply decline to
abide by such portions of the order that DOCS
fmds to have been imposed in excess ofthc trial
court's authority," and ordered Bratton released
to the Division ofParole to carry out the Willard
sentence. By the time he was released, however,

Page 25

he had served approximately four months in
DOCS facilities.
Bratton there(l.lre tiled a second claim, this
tinle in the Court of Claims. He argued that his
imprisonment in DOCS tl.lr four months had
been Unlawful and that he was entitled to
danmges. The Court of Claims agreed. DOCS
had never appealed the decision of the judge in
Bratton's habeas case, so those findings
constituted binding law and conclusively
estahlished that Bratton's incarceration had been
unlawtill. A separate trial to dctemline danmges
will be scheduled.

Parole
Appellate Division Declines to Reverse
Favorable Parole Case; Finds Issues hfoot
Matter ofChan v. Travis, 770N.Y.S.2d 896 (3d
Dep't 2004)
This ease involved an inmate, Denny Chan,
who had been serving a manslaughter sentence.
While in prison, he accumulated an exceptional
record: he earned a bachelor's degree, was
adnutted into a national honor society, earned a
certification as a computer programmer, worked
as a teacher's aid, and received no disciplinary
infractions. Despite this record, he was denied
parole. Chan sued, arguing that the Parole Board
had abused it's discretion. The State Supreme
Court agreed, finding that the Board's heavy
emphasis on his crime, to the near exclusion of
the strong evidence of rehabilitation - and,
particularly, its fmding that Chan's crime
"precluded" early release - constituted an abuse
of discretion. The court ordered that Chan
receive a new hearing. By the time the court
acted, however, Chan had already been granted
parole at his next regularly-scheduled
appearance.

Page 26

Pro Se Vol. 14 No.2

A case is considered moot if the issues that
gave rise to it have been resolved. Here, the fact
that Chan was released would normally have
meant that his case against the Board was moot.
The Division of Parole, however, did not see
things that way: concerned that the Supreme
Court decision would create untavorable
precedent, it decided to appeal the judge's
decision. The Board argued that the Appellate
Division should reverse the lower court decision,
even though Chan had been released by a
subsequent Board, because the legal reasoning,
- i.e., that the Board could not conclude that the
seriousness of inmate's crime "precluded" a
grant ofparole, notwithstanding the merits ofhis
rehabilitative accomplishments - was so
erroneous that allowing the decision to stand
would have adverse consequenees for the law.
The Appellate Division disagreed. Without
commenting on the merits of the Board's
arguments, it allowed the lower court decision to
stand, fmding the Board's appeal moot due to
Chan's release. The result is that the lower court
decision, Chan v. Travis, Index No. 3045-02
(Sup. Ct., Albany Co. 2002) (Sheridan 1.) may
still be cited as persuasive authority in filture
parole cases.

held that an inmate, who failed to retnm from his
temporary release program after being arrested
and subsequently sentenced to eight months in a
eonntyjail, was deemed to have absconded from
temporary release. The result was that his state
sentence was interrupted for the period of time
he spent detained in the connty jail. In February,
the Appellate Division npheld that decision,
fmdingthat Penal Law §70.30(7), which governs
calculations of sentences for those absconding
from temporary release, allows for the
interrnption ofan inmate's sentence ifhe Jails to
retnrn to the facility while on temporary release,
and that interruption continues until the inmate
is returned to the institution where his original
sentence is being served. Maecio, the petitioner,
had argued that Penal Law §70.30(7) should not
apply to his case, since he was found not not
guilty of "absconding." The court disagreed.
"Penal Law §70.30(7) unambignously provides
for sentence interruption whenever a person on
temporary release fails to return regardless (?{
whether the failure is intentional," the court
held.

Prisoners' Legal Services submitted an amicus
briefin this case.

Select I~sues in Sentence Cn/clllation

Temporary Release
Appellate Division Upholds Decision Finding
Arrest and Conviction on New Charge While
on Temporary Release ConstitutesAbsconding
Maccio v. Goord, 772 N.Y.S.2d 745 (3d Dep't
2004)
In Pro Se Vol. 13, No.3, we reported the
decision of Matter of Maccio v. Goord, 756
N.Y.S.2d 412 (Sup. Ct. Alb. Co. 2003), which

New York State has some of the most
complicated sentencing laws in the nation:
determinate, indeterminate, and definite
sentences; concurrent and consecutive sentences;
"shock" sentences and "Willard" sentences; and
delinquent dates, jail time, and parole jail time.
All these and more can come into play when
trying to determine the correct legal dates of any
individual sentence. Many inmates write to
Prisoners' Legal Services, doubtful that their
sentence has been correctly computed and
confused as to how to go about correcting any
errors.

Pro Se Vol. 14 No.2

A single article cannot address thc many
possible sentence issues. In this practicc piece,
we take a closer look at two situations which are
a common source of confusion among iImmtes:
how to calculate two concurrent indeterminate
sentences inlposed at different times; and how to
calculate a determiIJate sentence when it runs
consecutivcly to a previously-imposed
indeterminate sentence.
First, some basics: The principal rules for the
calculation of sentences are contained in Penal
Law §70.30. The very first rule, Penal Law
§70.30(1), provides: "An indeterminate or
determinate sentence of imprisonmcnt
commences when the prisoner is received in an
institution undcr the jurisdiction of the state
dcpartment of correctional services." Thus, any
time served prior to your arrival in DOCS is not
"sentence tinle." The time may be credited
agaiIlst your sentence, as either jail time or
parole jail time, but it is not, strictly speaking,
part of your sentcncc. In addition, once a
sentence has commenced, it may not be
interrupted except by escape, absconding, or a
parole delinquency. Also, when calculating
parole eligibility dates and conditional release
dates, dilferent rules apply to different typcs of
sentcnces.
If you are given an indeterminate sentence,
you must serve the minimum pcriod of
imprisonment (MPI) belore you are eligible for
parole release (I'E datc), and you become
eligible for conditional release after serving twothirds of the maxinlUm term (CR date).
However, if you are given a determinate
sentence, you are not eligible lor diseretionary
parole release and you must serve six-scvcnths
of thc term before becoming eligible for
conditional releasc to parole supervision. Bear
these priuciples in mind while we consider the
following:

Page TI

Concurrent Indeterminate Sentences Imposed
at Different Times
Concurrent sentences are two or more
sentences not necessarily inlposed at the same
time but ordered to run at the same tinle. Penal
Law §70.30. [fyou receive multiple concurrent
indetermiIJate sentences and they are inlposed at
the same time, thc rule is sinlple: You must
satisfy the one which has the longest unexpired
term to run. For example, if you reeeive a 2-6
year sentenee and a 3-9 year sentence and they
are ordered to be run concurrently, the 2-6 year
sentence would merge into the longer 3-9 year
sentcnce. This would mean that you would have
to serve three years before you became eligible
for parole and six years before you became
eligible tor eonditional release. You would
"max-out" after serving nine years.
If you receive concurrent iIldeterminate
sentences but they are iIuposed at differcnt
times, Penal Law §70.30(l)(a) states that "the
tiIue served under imprisonment on any of the
sentenees shall be credited against the miIlinlum
periods of all the coneurrent indeterminate
sentences .. ." This means that ifyou received a
2-6 year sentence and you served two years and
then were sentenced to a 3-9, concurrent to the
2-6, you would receive two years credit toward
the minimum on your 3-9 ycar sentence, making
you eligible for parole again in just one year.
Since a sentence does not begin to nm until a
person is rcceived in an institution under DOCS'
jurisdiction, you would not receive credit for the
two years you had already served off the
subsequent nine-year maxinlum. Penal Law
simply mandates that "[t]he maxinlum term or
tenns of the indeterminate sentences .. , shall
merge in and be satisfied by discharge of the
term which has the longest unexpired time to
run." Penal Law §70.30(l )(a). Thus, based upon
the above scenario, although you would be
eligible for parole after serving only one year of

Pro Se Vol. 14 No.2

PagelS

your 3-9, you would have to serve six years
before you became eligible for conditional
release (the six years being computed from the
date you were sentenced on your 3-9) and your
maximum release date would be nine years from
the date your were sentenced on the 3-9.

Determinate Sentence Running Consecutively
To Previously Imposed Indeterminate
Sentence
Ifyou receive an indeterminate sentence and
then a determinate sentence is imposed and
ordered to run consecutively to your previouslyimposed indeterminate sentence, the detenninate
sentence is added to the minimum of the
indeterminate sentence to calculate the
aggregate maximwn term of imprisonment.
Penal Law §70.30(l)(d). For example, if you
received a 6-12 year, indeterminate sentence,
and then were sentenced to an 8-year
detemlinate sentence, the mininmm of the
indeterminate sentence (6 years) would be added
to the determinate sentencc (8 years), resulting
in an aggregate maximum term of 14 years.
Your parole eligiblity date would be computed

by taking 6/7 of your determinate sentence and
adding that to the miuimum of your
indeterminate sentence. Thus, in this case, you
would be required to serve 12 years 10 months
before you would become eligible for parole
release (6 years 10 months [6/7 of 8] plus 6
years [the miuimum of your indetemlinate
sentence]). (Penal Law §70.30(l)(d) does
provide for limitations on the aggregate
maximum term of imprisonment which can be
imposed in these types of cases, the conditions
ofwhich are set forth in Penal Law §70.30(l)(e)
and (f).)
However, to further eomplicate matters, the
law also provides that the aggregate maximum
term of imprisonment camlOt be less than the
maximum term of the indeterminate term(s).
Thus, if you were sentenced to a 4-year
determinate term and a consecutive
indeterminate term of 4-12 ycars, the aggregate
maximum tcrm of imprisonment would be 12
years, not 8 years (4+4). You would be eligible
for parole release after serving 7 years, 5 months
(6/7 of 4 [determinate] plus 4 [indeterminate],
and you would be eligible for conditional release
after serving 8 years (2/3 of 12).

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EDITORS: KAREN MURTAGH-MONKS, ESQ.; C()N'fRIBlJTORS: TOM TERRfZZI, ESQ.,
:tvHCHAEL CASSIDY, ESQ., STACY GRACZYK. ESQ., JOEL LANDAU, ESQ.
COPY El>I'I'OR: FRANCES GOLDBERG PRODucnON: FRANCES (;OI,DBERG
EDI'TORIAL BOARD; T()M 1T~RJUZZI, ESQ., BETSY STERLING, ESQ. KAREN MURTAGII-MONKS, ESQ.

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