Vol. 15 Number 1: Winter 2005 Published by Prisoners' Legal Services of New York

Second Circuit Holds Appointment ofCounsel Sufficient to Satisfy
Constitutional Requirement ofAccess to Courtfor Inmates
The United States Court of Appeals for the
Second Circuit recently held that the
appointment of counsel fully satisfies the
constitutional guarantee of access to courts for
both prisoners and pretrial detainees. In Bourdon
v. Loughren, 386 F. 3d 88 (2d Cir. 2004), Judge
Cabranes, writing for the majority, ruled against
a prisoner who claimed he was effectively denied
access to the courts because he was denied
adequate materials by the prison law library. The
court made it clear, however, that.its ruling was
limited to those situations where the
prisoner/pretrial detainee was being represented
by counsel. The court noted, "[i]n the present
case, Bourdon did not seek to represent himself,
as he would have had the right to do ... We
express no view as to whether the appointment
of counsel could adequately protect the right of
access to the court of a defendant who has
exercised his Sixth Amendment right to waive
counsel and conduct his own defense."

when he requested reference materials from the
jail's law library, the defendants denied his
article continued on page 2 ...

Also Inside...
McKenna v. Wright: Qnalified
Immunity Can Be Raised in
Motion to Dismiss .

. . page 7

Administrntive Segregation: Court

Uphold. Continued Confiuement

page It

People v. West: Is New York's
Persistent Violent Felony Offender
I..aw UntOilstitutional? ,....... . . page 11
Dickenon v. State of New York

Espert Te,tlmony Crucial in Delay of
Treatment Ca,e,
page 12
Titmas v. Hogue: Court Denies
Requcit for Jail Time Credit for

Backgrollnd

In 1996, Ronald Bourdon was arrested on
various charges and held in the Chenango
County jail. While in the jail, Mr. Bourdon, who
was represented but dissatisfied with his courtappointed counsel, attempted to prepare pro se
motions regarding his indictment. However,

Time Spent in Rehabilitation

page 16

Pro Se Practice: Inmate Testimony
Where Mental Dine.. i' an Issue ... page 19
Subscribe to Pro 8e! 8ee bilck myre for deooJ.'J

This project is supported by a grant atfministered by the New rork .'.'tate DivisUm ofCriminal Justit.>:.e Services. Points ofview in this document
are thme olme lUlthor and do not ,tef~:Jari1y reprafflt the ojJi.c.iaJ.position orpolicie:s {ifthe DivisuJn ofCriminal Justice SevU:n.

Pro Se VoL 15 No.1 Winter 2llIJ5

Page 2

... article continued/rom page 1

request, since he was "represented at the time by
a court-appointed counsel." The defendants
advised Mr. Bourdon that if he wanted these
materials, he could request them from his
counsel. Mr. Bourdon replied that he had not
heard from his counsel and that he was
"disappointed with the attol11ey's services," but
the defendants still denied his request.
Nevertheless, even without the materials,
Mr. Bourdon filed his pro se motions, one for
new counsel and one to dismiss the indictment.
The trial court denied his motion to dismiss the
indictment, finding that the motion was
"untimely and that Mr. Bourdon, rather than
defendants, was responsible for the late filing."
The court, however, granted his motion for new
counsel.
In 1997, Mr. Bourdon filed a law suit in the
Northel11 District ofNew York, claiming that the
defendants' refusal of his request for reference
materials and their delay in providing him with
the services of a notary puhlic hindered his
ability to prepare his legal papers. Both parties
moved for summary judgment, but Mr. Bourdon
failed to file any response to the defendants'
motion. Northel11 District Chief Judge Scullin
granted the defendants' motion for sunnnary
judgment and Mr. Bourdon appealed.
On the first appeal, the Second Circuit found
that the District Court had erred in granting
summary judgment to the defendants before
advising Mr. Bourdon, "a pro se litigant, of the
consequences of failing to file a response to
defendants' summary judgment motion."
Because ofthis error, the Se.cond Circuit vacated
the order ofthe District Court and remanded the
case.
On remand, the parties once again filed
cross-motions for summary judgment. Thenmagistrate Sharpe recommended finding in favor
ofthe defendants, holding that "Bourdon's right
of access to the court had not been denied, ...
that Bourdon could have asked for an extension

of time to move to dismiss the indictment and
that the denial of Bourdon's motion to dismiss
resulted from Bourdon's inaction, not because
Bourdon was delayed access to notary services."
Magistrate Sharpe went on to hold that, during
the entire time Mr. Bourdon claimed he was
denied access to the courts, he was represented
by counsel. The District Court judge adopted
Magi strate Sharpe's report and
recommendation, and granted summary
judgment to the defendants.
In his second appeal to the Second Circuit,
Bourdon argued that the District Court was
wrong to grant summary judgment to the
defendants. Mr. Bourdon asserted that it did not
matter that he was represented by an attol11ey at
the time he was trying to file his papers because
his "appointed counsel was ineffective," and
therefore, the defendants, in failing to provide
him with an adequate law library, hindered his
ability to access the state trial court.
Right of Access to tile Courts
The well-established "right of access to the
courts applies beyond criminal litigation to
ensure that all citizens have '[t]he right to sue
and defend in the courts.'" Bourdon citing
Chambers v. Baltimore & Ohio RR, Co., 207
US. 142 (1907) Access to court has particular
application to prisoners. It assures that those
who are in custody "have the tools they need in
order to defend against criminal charges, attack
their convictions and sentences... and bring civil
rights claims challenging the conditions of their
confinement." Lewis v. Casey, 518 US. 343,
350-55 (1996) The right is grounded in the Due
Process Clause of the Fifth and Foutieenth
Amendments and the Equal Protection Clause of
the Fourteenth Amendment.
The practical application of this right with
respect to prisoners was originally set forth in
the ca.~e ofBounds v. Smith, 430 US. 817, 828
(1977), where the Supreme Court held that the
right of access to courts "requires prison

P .... Se Vol. t5 No. t Winwr 2005

Pagel

authorities to assi st inmates in the preparation
and filing of meaningful legal papers by
providing prisoners with adequate law libraries
or adequate assistance from persons trained in
the law."
In Bounds, the issue was wbether the district
court had erred when it approved a library plan
for the prisoners ofthe State ofNorth Carolina.
The State had aq,,'lIed that it should not be forced
to implement and pay for a statewide library plan
for prisoners as long as its prisoners were
allowed to communicate with "jailhouse
lawyers." The Supreme Court rejected the
State's position and upheld the lihrary plan, but
also acknowledged that, "while library service is
one valid means ofassuring access to the courts,
constitutionally acceptable access can be
provided alternatively by 'adequate assistance
from persons trained in the law. '" Bourdon
citltl8 Bounds, 430 at 829. The Supreme Court
expounded on tllis by setting forth a number of
alternatives a State might consider to tuUm the
aceess-to-court mandate. Judge Cabranes noted
that the Bounds COlllt found that "[a]mong the
alternatives are the training of inmates as
paralegal assistants to work under lawyers'
supervision, the use ofparaprofessionals and law
students, either as volunteers or in fonnal clinical
programs, the organization of volunteer
attorneys through bar associations or other
groups, the hiring of lawyers on a part-time
consultant basis, and the use of full-time staff
attorneys, working either in new prison legal
assistance organizations or as part of public
defender or legal services ofnces."

measured in terms of whether that counsel was
'effective' under the Sixth Amendment's
guarantee of the assistance of counsel, and (3)
whether, in the circumstances of this case, the
tact ofBourdon's appointed counsel established
constitutionally acceptable access to the courts."

The JlJisnes in Bourdon

Mr. Bourdon did llot raise an "effective
assistance of counsel" claim under the Sixth
Amendment, but did strenuously argue that his
attorney was so ineffective that the mere
appointment of the attorney to represent him
could not possibly satisty the state's duty to
provide llim with "meaningful access to the
courts." The court found this claim required the
court to determine "whether any claim of

The Bourdon case raised three questions:
"(I) whether the appointment of counsel is a
valid means of satisfying fully a state's
constitutional obligation to provide prisoners
with meaningful access to the courts, (2) if so
whether the provision of counsel to satisty a
prisoner's right ofaccess to the courts should be

Is Appointment of Counsel Sufficient to
Satisfy "l\-fesningful Access to the Courts?"

In answering this question, the Second
Circuit first noted that, although it had indicated
"in dicta" that appointment of counsel could be
a valid means of satisfying a prisoner's right of
access to the court, it had, admittedly, never
directly addressed this question. The court then
looked to the Supreme Court's decision in
Bovnds and decisions of other circuits on this
issue. As stated above, Bounds held that a state
could satisty a prisoner's right of access to the
courts by providing a prisoner with "adequate
assistance by persons trained in the law." Since
Bounds, several circuit courts have also held
that appointment of counsel is a valid means of
providing access to court to pretrial detainees
and other prisoners. Based on these decisions,
Judge Cabranes cOIIlI:lnded: "Accordingly,
today we explkitly hold tlult tile appointment
of counsel is a valid means of fully satisfying
a state's constitutional obligation to provide
pt'isoners, including pretrial detainees, with
access to the courts, , •• "
What is Mellllt by "AdequlIte Assistance
f.'om Persons Trained in tile Law?"

Page 4

constitutionally-acceptable access to the courts
through appointed counsel should be measured
by reference to the constitutional standard of
effective assistance ofcounsel." In other words,
the court decided that it had to detennine what
is meant by the phrase "adequate assistance from
persons trained in the law" in order to determine
whether such a phrase rises to level of what is
required by the Sixth Amendment in terms of
"effective assistanr,e of counsel."
Comparing the two rights, assistance of
counsel and access to courts, the court found
that they originated from different sources:
assistance of counsel being set forth in the Sixth
Amendment, the right ofaccess to courts finding
its roots in, among other things, the Due Process
Clause ofthe Fifth and Fourteenth Amendments
and the Equal Protection Clause of the
Fourteenth Amendment. The Court then
examined the judicial history ofthese two rights.
Although both rights are generally concerned
"with assuring that criminal defendants receive a
fair trial," they protect this fundamental right in
"different ways and they apply to different
categories of persons."
The Sixth Amendment right of effective
assistance of counsel exists to prevent a person
from being hauled into court and being denied a
fair trial simply because he cannot afford to hire
a lawyer. The right of effective assistance is
rooted in the constitutional right to be heard on
the criminal charges against you. This right
would be meaningless if it did not include "the
right to be heard by counsel." The right to
effective assistance of counsel applies only to a
defendant's criminal trial and his/her first appeal
as of right. It does not apply to collateral
attacks, discretionary appeals, or challenges
regarding conditions of confinement.
The right ofaccess to the courts, although it
also concerns the issue of being provided a fair
trial, achieves that end differently, and applies to
different types of proceedings and a different
category of people. The right of access to the
courts applies to all prisoners, not just those who

Pro Se VoL t5 No. t Winter 2tlO5

are facing a criminal trial or engaging in their
first appeal ofthat trial. This right encompasses
aspects of litigation that are not at issue for a
criminal defendant. For instance, in addition to
the need of a prisoner to have adequate
assistance from persons trained in the law, the
right of access to the courts also allows indigent
prisoners to "'file appeals and habeas corpus
petitions without payment of docket fees. ",
One way to distin!,'Uish between the two
rights is to view the Sixth Amendment right as a
means of protecting individuals from unjust or
unfair prosecution, whereas the access to court
right is meant to open the courthouse doors to
those who might otherwise be unable to enter.
There is no question that "both rights impose
a certain minimum standard of 'assistance.'''
However, the Sixth Amendment right speaks in
terms of "effective assistance," whereas the
access to courts right speaks in terms of
"adequate assistance." The court noted,
"etfective assistance of counsel" means, "quite
plainly, that the defendant is entitled to
assistance by a competent attorney who, through
his or her representation ofthe defendant, 'plays
the role necessary to ensure that the trial is
fair.'" By contrast, the phrase, "adequate
assistance from persons trained in the law," is
somewhat more amorphous and does not
guarantee any specific type of assistance, but
rather, it confers on the benefitted person the
capability ofbringing a challenge to his sentence
or conditions of confinement.
III light of alI of these factors, the court
determined that "the term 'adeqllate'
modifying 'assistance from persons trained in
the law' does uot incorporate the
cffcctivcuess iUljlliry" of the Sixth
Amendment bllt rather refers to the
"capability of qualified and trained persous"
to bring a prisoner's legal claim before the
conrts. Thus, the court held, in quoting a 1995
Eighth Circuit case, 'adequate assistance',
"refers not to the effectiveness of the
representation, but to the adequacy of the

PageS

Pro Se VoL 15 No. I Winrer 2005

prisoner's access to his or her court.approved
counsel. ... "
Appointment of Counsel Establislled
Constitutionally Acceptable Access to Courts
Mr. Bourdon claimed that his cowlsel was so
ineffective as to not be able to provide him with
meaningful access to the courts. However, the
court held that, "[b]eclluse attorneys, by
definition, are tmined alld qualificd in legal
matters, when a prisoncr with appointed
counsel claims tllat Ite was hindel'ed by
prison officials in Ilis efforts to defend himself
or pursue other rclevant legal claims, he must
show that, on the facts of his case the
provision ofcOllnsel did not furnish him with
the capability of bringing his challcnges
before the courts, not that he was denied
effective representation in the court."
Since Mr. Bourdon was, at the time he
requested the reference materials, represented by
an attorney, since he failed to present any
evidence that the defendants restricted his access
to his attorney, since he did not request the
reference materials from his attorney, and since
he did not allege that his attorney was incapable
ofpursuing his claims, the court found that "the
denial of Bourdon's request for reference
material did not 'hinder [] his efforts to pursue a
claim' and thus did not violate Bourdon's right
of access to the courts."
Tile Concurrence
Senior Circuit Judge Oakes, although he
concurred with the decision to affirm the grant
of sunmlary judgment, did so only because he
believed that Bourdon failed to prove that he
was injured or prejudiced by the alleged denial of
access and thus failed to state a claim on which
relief could be granted. (Lewis, 518 U.S. at 350)
In his concurring opinion, Judge Oakcs voiced
his disagreement with what he referred to as "the
breadth of the rule announced," stating that,

although it is true that there are times when the
appointment of counsel may be sufficient, such
action does not necessarily always fully satisry "a
state's constitutional obligation to provide
prisoners, including pretrial detainees with
access to the courts." Judge Oakes noted,
"[t]here may be other aspects of the right of
access that a state may not constitutionally
obstru(,'1 despite the provision of counsel." For
instance, a state could not obstruct a prisoner's
ability to visit with his counsel and then argue
that, simply because it had appointed counsel, it
had provided access to the courts.
Judge Oakes also disagreed with the
majority's holding that the right to effective
assistance of counsel does not play a role in
analyzing whether the state has fulfilled its
obligation to provide access to the courts. Judge
Oakes noted: "A defendant whose counsel fails
to meet the minimum constitutional standards of
effectiveness is not represented at all, and to
deny that defendant all other means of
communicating with the court most certainly is
a deprivation of constitutional proportions.... "

A Message from Tom lerriui,
Executive Director ofPLS
The Imp0l1ance of Being
Consumer

111I

Educated

The looming crisis regarding the treatment
of those who are afflicted with Hepatitis C is
sobering. Throughout the United States, it is
estimated that, in some state prisons systems, up
to 25% of those incarcerated are HCV positive.
In New York, knowledgeable sourees estimate
that 10,000 or more of the state prison
population is HeV positive.
Just getting the tests to discover your HCV
status can be daunting. Even with a diagnosis, it
is difficult, if sometimes impossible, to get
appropriate treatment while incarcerated. The
story told in the recent Second Circuit case of
McKenna v. Wright, reported in this issue, is

Page'

troubling to anyone seeking to overcome the
barriers to treatment. Even ifyou are persistent,
like Mr. McKenna, you still might have to take
the matter to court for relief.
One thing is clear, however, if you aren't
persistent: you often will not get the care you
need. Being persistent, while respecting the
medical care provider, is crucial. Even outside of
prison, access to medical care is getting
increasingly difficult, with many bureaucratic
rules to comply with, and that is only if you are
lucky enough to have health insurance. If you
don't have coverage, the task is even harder. It
is necessary to be an educated consumer of
health care to insure that you are getting the best
care possible.
One way to insure you are following through
on efforts to get needed treatment is to keep a
log of your efforts. Every time you go to sick
call for a particular problem, prepare by noting
in your log what it is you will be asking the
medical staffto do for you. During your visit, or
as soon as possible afterwards, you should write
a note in your log about what your appointment
covered and the name of the nurse, physician
assistant, or doctor you saw. You should also
write down what information was given to you
and what you need to do to follow up.
This may seem obvious, but in order to keep
track of what happened, especially if your
condition is a serious one which will require
multiple appointments, you should have a log
regarding your treatment. You can't always rely
on the medical records to accurately reflect what
you discussed with the medical staff Your
independent log of information will help you
remember what was said and what you have to
do next.
Keeping a written log will help you be better
infonned when you go to see a medical provider,
especially if you have been transferred and have
to start over \vith a new doctor. A log will also
help you in preparing a grievance or other
appeal, if that route is necessary to get needed
assistance. In the last issue of Pro Se, we

Pro So Vol. t5 No.1 Winter 2005

reported on Abney v. McGinnis, in which Mr.
Abney repeatedly filed grievances to secure
needed medical care. The Second Circuit found
that his efforts were sufficient to exhaust his
administrative remedies before going to court
seeking an order for relief.
Persistence and accurate records will help
you get the care you need in a timely manner.

II N'ews and' BTlrefs
Supreme Court Denies Petition For Review on
Case Involving Voting Rights of Feloll.~
Locke v. Farrakhan, 2004 WL 2058775 (U.S.
Nov. 8,2004)
In a decision which sends mixed messages to
states with respect to the issue of voting rights
for convicted felons, the Supreme Court
declined to review a Ninth Circuit Court of
Appeals case which allowed felons to challenge
a Washington state felon disenfranchisement
statute as a violation of the Voting Rights Act.
However, the Court also let stand a decision by
the Second Circuit Court ofAppeals which held
that the Voting Rights Act did not apply to New
York's disenfranchisement law. In our last issue
of Pro Se, we reported on the Second Circuit
case ofMuntagim v. Coombe, 366 F.3d 102 (2d
Cir. 2004), where the Second Circuit held that
the Voting Rights Act, which is silent on the
topic of state felon disenfranchisement statutes,
cannot be applied to draw into question the
validity of New York's disenfranchisement
statute. Apparently all States, save Maine and
Vermont, deny felons the right to vote, although
some allow felons to regain the right to vote
under certain circumstances. "When you have
that many people who don't get to choose their
govermnent, that is a serious problem for
democracy," said Jessie Allen, of the Brennan

Pro Se VoL IS No.1 Winter 200S

Center for Justice at New York University
School ofLaw. Mr. Allen is representing a class
of600,000 Florida ex-felons before the Eleventh
Circuit on a challenge to a disenfranchisement
statute.
The decision in Locke, however, is not the
end. The Locke case will now proceed to trial
and various appeals are possible. In Muntagim,
a majority of Second Circuit judges voted on
their own motion to rehear the case if the high
court denied review, so that case is back before
the Second Circuit. Finally, the Florida case
could be before the Supreme Court by next year.

Qllalified Immllnity: Can Be RaisetJin Motion

to Dismiss
McKenna v. Wright, 386 F. 3d 432 (2d Cir.
2004)
Qualified immunity is an affirmative defense
which means that when sued, a defendant can
raise the defense of qualified immunity to shield
himself from liability. Qualified immunity finds
its basis in the common law and was instituted in
an attempt to protect civil servants from the fear
ofbeing sued in perfonning lawful discretionary
functions. When a public official raises the
defense of qualified immunity, he will be
protected from liability unless the plaintiff can
prove that he has violated a "clearly established"
law, ofwhich a reasonable official in his position
would have known.
Normally, since it is an affinnative defense,
qualified immunity is asserted as a defense in
answer to a complaint. However, there have
been at least two cases in the Second Circuit
where the defendants have not answered, but
rather, have made a motion to dismiss the

Page 7

complaint pursuant to FRCP 12 (11)(6), and in
their motion to dismiss, raised the defense of
qualified immunity. In Green v. Maraio, 722
F.2d 1013 (2d Cir. 1983), the COUlt permitted
the defendant, a court reporter who was alleged
to have altered a transcript of a criminal trial, to
raise the defense of qualified immunity in a
motion to dismiss because "the complaint itself
establishe[d) the circumstances required as a
predicate to a finding of qualified immunity.
Green, 722 at 1019. The court in Green held
that "dismissal pursuant to [Rule) 12(b)(6) was
proper ... '[s)ince judges are ilUlnune £i·om suit
for their decisions [and therefore) it would be
manifestly unfair to hold liable the ministerial
officers who carry out the judicial will"
In the second case, Pani v. Empire Blue
Cross Blue Shield, 152 F.3d 67 (2d Cir. 1998),
a "liscal intermediary" was accused ofmaking a
false statement regarding a claim tbr Medicare
reimbursement. The Second Circuit upheld the
defendant's qualilied immunity defense which
was raised in a motion to dismiss, reasoning that
"fiscal intermediaries... are acting as adjuncts to
the govemment and are carrying out a traditional
govemment function." In both of these cases,
the court noted that it was allowing the qualified
immunity defense to be asserted in 12(b)(6)
motion to dismiss because it had detennined that
"the facts supporting the defense appeared on
the face ofthe complaint." Pani, 152 F. 3d at 7475. See also: Green 722 at 1019.
In the recent case ofMcKenna v. Wright, the
U. S. Court of Appeals for the Second Circuit
extended the trend to allow exceptions to the
general rule that affirmative defenses must be
presented in an answer to the complaint and not
in a motion to dismiss. Although the court
ultimately rejected the defendants' defense of
qualified immunity, the court held that "even a
traditional qualified immunity defense" may be
asserted on a Rule 12(b)(6) motion, "as long as
the defense is based on facts appearing on the
face of the complaint."

PageS

Background
Edward McKenna, a prisoner who was
incarcerated at Woodbourne C,F" sued the
defendants within DOCS, claiming tbat they
were deliberately indifferent to his medical needs
when they failed to diagnose and treat him for
the Hepatitis C Vims (HCV), "a treatable vims
that affects the functioning of the liver."
The facts of deliberate indifference, as
alleged by Mr, McKenna, are quite disturbing.
MI'. McKenna has been in DOCS custody since
1990. Prior to his incarceration, he served in
Vietnam. He admitted to prison authorities that
he had used dmgs intravenously, had bcen
diagnosed with a sexually-transmitted disease,
and had previously been incarcerated. All of
these factors indicate the potential for being
infected with HCV. In 1994, certain tests
performed on Mr, McKenna indicated some
symptoms ofHCV,
However, in 1998, when Mr. McKenna was
transferred to Woodbourne, he was not tested
for HCV despite DOCS' policy to test all
inmates entering a new facility. In 1999, Mr.
McKenna was tested and was told by one ofthe
defendants that he was positive for HeV, He
requested but was denied medication. DOCS'
guidelines require that in order to receive
treatment, an inmate must remain incarcerated
for at least twelve months. Since Mr. McKenna
was eligible for parole in less than a year, be was
denied treatment.
Mr, McKenna was ultimately denied parole
so he requested treatment again, but was denied
due to the fact that he was not enrolled in an
Alcohol and Substance Abuse Treatment
(ASAT) program, Ironically, Mr, McKenna had
previously been deemed ineligible for ASAT
because of his medical condition.
By 2001, Mr. McKenna's HCV had
progressed to cirrhosis of the liver but he was
once again denied treatment, being told that "his
cirrhosis was decompensated, i. e., accompanied
by various complications, ... " However, when he

Pro Se VoL IS No.1 Winter 2005

later requested a liver transplant, he was denied
that also, being told that bis request was denied
"because the cirrhosis was probably
compensated,"
Again in 2002, Mr, McKenna requested
treatment, but was again denied because he was
not in ASAT. Finally, in January 2003, he was
approved for treatment; however, "because of
the delay in receiving treatment, his disease was
so advanced that the side effeets rendered him
too weak to continue treatment." MI'. McKenna
sued.

Availability of Qualified Immuuity Defense
on a Rule 12(b)(6) Motion
Instead of answering, the dcfendants filed a
motion to dismiss and raised the defense of
qualified immunity, When their motion was
denied, they appealed to the Second Circuit. The
Second Circuit first examined its holdings in
Green and Pani. The court detemlined that
although this case was somewhat different, in
that "the qualified immunity defense being
asserted is the traditional one asserted by
executive branch personnel making discretionary
decisions, ' ,,rather than the specialized defense
of a court reporter.. .or that of a fiscal
intermediary. ,," the analysis should be the same.
"[A]s long as the defense is based on tacts
appearing on the face of the complaint," the
defendants should be pennitted to raise even a
traditional qualified immunity defense.
The court cautioned, however, that the
burden on defendants is much greater in terms of
proving their defense if it raised in a motion to
dismiss. "Not only must the facts supporting the
defense appear on the face of the
complaint... but, as with all Rule 12(b)(6)
motions, the motion may be granted only where
'it appears beyond doubt that the plaintiff can
prove no set offaets in support of his claim that
would entitle him to relief,'" held the court.

Pro Se Vol. 15 No. 1 Winler 2005

Page 9

The Merits of the Defendants' Qualified
Immunity Defense
The claim in this case was one of deliberate
indifference to serious medical needs. In light of
this, the court pointed out that, "[t]o establish
their qualified immunity defense, the defendants
must show that it was 'objectively reasonable'
for them to believe that they had not acted with
the requisite deliberate indifference." Although
it is quite possible that, at the summaryjudgment
stage, the defendants may be able to produce
sufficient evidence through affidavits or
othenvise, that their actions in denying Mr.
McKenna treatment were "objectively
reasonable," the court found that they could not
have the ease dismissed at this stage ofJitigation
based upon their bare assertion of qualified
immunity. The defendants attempted to argue
that their twelve-month incarceration nile,
regarding eligibility for treatment, was rationale
but the court stated: "Whether or not that
[twelve month incarceration] theory can be
supported on summaryjudgment by affidavits of
sufficient plausibility to demonstrate the
defendants' objectively reasonable reliance on
the policy, McKenna's allegation that he was
denied urgently needed treatment for a serious
disease because he might be released within
twelve months of starting the treatment
sufficiently alleges deliberate indifference to
withstand a Rule 12(b)(6) motion.

Post Release Supervi.~ion: No Real Remedyfor
Prisoner When State Fails to Advise of
Mandatory Post-Release Supervision Period
Eiland v. Conway, 2004
(S.D.N.Y., Sept. 2, 2004)

WL

1961564

In February 1999, Ellis Eiland pled guilty to
attempted burglary in the second degree, a crime
which he allegedly committed on November 7,
1998. Mr. Eiland entered his plea ofguilty based
upon his understanding that he would receive a

three-year determinate sentence. However,
unbeknownst to Mr. Eiland, New York law
mandates that, for crimes committed after
September I, 1998, any determinate sentence of
this kind must also carry a five-year term of
post-release supervision. After Mr. Eiland
served his three-year term, he was released on
parole but was subsequently violated.
Violation of the terms of parole when there
is a post release supervision period at issue
requires the violator to be returned to prison.
After Mr. Eiland had been returned to prison
several times and held pursuant to his postrelease supervision status, be filed a Wlit of
habeas corpus challenging his retention in State
prison. Mr. Eiland argued that, since he was
never told about the post-release supervision
period, the State had no legal authority to hold
him after the expiration of the three-year
determinate sentence.
The State did not dispute that Mr. Eiland
was never informed of the post-release
supervision period. Instead, the State first
argued that the Eiland Habeas petition was
untimely. The court engaged in an exhaustive
analysis to determine whether Mr. Eiland's
petition was indeed, untimely. "[A] federal
habeas petition is time-barred unless it is brought
within one year of (so far as is relevant here)
either 'the date on which the judgment became
final by the conclusion of direct review or the
expiration of the time for seeking such review,'
or 'the date on which the factual predicate ofthe
claim or claims presented could have been
discovered through the exercise of due
diligence,''' the court said. Since there was no
dispute that Mr. Eiland was not aware of the
post-release supervision period until he was
violated by parole and returned to DOCS
custody, the court decided that Mr. Eiland could
"not possibly have discovered the 'factual
predicate' of [his] claim until at least March 31,
2001." Thus, the court found that the time in
which Mr. Eiland had to file his habeas action
began to run on March 31, 2001 .

Pag.l0

Without any interruptions then, Mr. Eiland
would have had to file his Haheas Corpus action
on or before March 31, 2002. He actually filed
his petition more than nine months later: on
January 10, 2003. This would, at first blush,
appear to be blatantly untimely. However, the
statute of limitations can be tolled (the time
stops running) pending certain actions, such as
post-conviction or other collateral review
cballenges. Thus, the court had to determine
how much time Mr. Eiland should be credited
with for tolling purposes. After examining the
tacts surrounding Mr. Eiland's argument that he
attempted to me various challenges to his
conviction, the court concluded that, even
applying tolling provisions, Mr. Eiland's Habeas
Corpus petition was untimely.
Moreover, the court determined, that even if
Mr. Eiland's petition had survived the timeliness
provision, the technical obstacle of exhaustion
still prevented him from obtaining Habeas
Corpus relief. "A federal court may not grant
habeas unless 'the applieant has exhausted the
remedies available in the courts of the State.'"
28 U.S.c. §2254(b)(I)(A). This means that Mr.
Eiland had to demonstrate that he had brought
his case before the highest state court authorized
to make a decision in his case. In Mr. Eiland's
ease, he was unahle to demonstrate this.
Although Mr. Eiland apparently attempted to
challenge his confinement due to his post-release
violations by filing various writ petitions in state
court, he never appealed the denial of those
petitions.
The court then addressed the merits of Mr.
Eiland's claim: that he completed his lawful
sentence of imprisonment and was entitled to
inunediate release from custody. Mr. Eiland
argued that the only available state remedy
which would be a §440.10 motion was
unacceptable because it would only result in
allowing him to withdraw his plea and face a trial
on the charges or to renegotiate his plea. Both
options were "unattractive to Eiland" because he
had no desire to go to trial on the original

Pro So Vol. 15 No.1 Winter 2005

charges and could not get a plea more favorable
than the one for which he had originally
bargained, since state law mandates the postrelease supervision time.
Mr. Eiland argued that he was being held by
the state without any legal authority. However,
the court rejected this argument. "Since the
sentence of post-release supervision was
mandatory under state law, the fact that the
judgment of conviction tailed to include an
explicit reference to it does not render Eiland
subject to punishment without lawful authority,"
the court held. "The term of supervised release
is, by legislative command, a part of the
judgment of conviction. Eiland's problem is not
that supervised release was not part of his
sentence, it is that he was never properly advised
that it would be."
Mr. Eiland also argued that, "to the extent
he did not receive the sentence he thought he
was receiving," he shouldn't be limited to simply
being allowed to withdraw his plea but should be
entitled to "the benefit of his bargain" The
court, relying on the Second Circuit, stated that
ordinarily '''the only remedies availahle for
breach of a plea agreement are enforcement of
the agreement or affording the defendant an
opportunity to withdraw the plea.'" The court
then noted that, '[iln the ease ofbreach ofa plea
agreement by a state prosecutor, the Supreme
Court on direct review has left the choice of
remedies to the state courts... and the federal
courts on habeas have done the same."
However, the court noted, in this case,
Mr. Eiland claimed that he bargained for a
sentence oftbree years without any post-release
supervision, and such a sentence under New
York law would have been illegal. In that
situation, the court held, "courts have generally,
and quite reasonably, held that the only available
remedy is rescission of the agreement and
withdrawal of the plea." Therefore, even
assuming that Mr. Eiland could have overcome
the hurdles of the statute of limitations and
exhaustion and thus be properly before the

Page 11

Pro Se VoL 15 No. 1 Winter 2005

court, and even assuming that his constitutional
rights had been violated, he could not have
proven that he was entitled to immediate release,
the remedy called for in a Habeas Corpus
petition.

Administrative Segregation
COlin ReI>iew ofConfinement to AD SEG and
IPC

Matter of Blake v. Selsky, 781 NYS2d 802
(3d Dep't 2004)
In 1987, William Blake was convicted of
killing one deputy sheriff and of critically
wounding another while attempting to escape
from police custody. When Mr. Blake was
turned over to DOCS's custody, prison statf
found that he was a violent escape risk and, for
the next seventeen years, housed Mr. Blake in
administrative segregation or involuntary
protective custody.
Tn June 2002, a hearing officer recommended
that Mr. Blake's administrative segregation
placement continue. After tlris recommendation
was affirmed by the Commissioner, Mr. Blake
filed an Article 78, arguing that the hearing
officer had violated his rights to due process of
law and that the decision was not supported by
substantial evidence. The Appellate Division
r<tiected both arguments.
An inmate's placement in admirlistrative
segregation is valid when his/her presence in the
general population threatens the safety and
security of the prison where she or he is placed.
To decide whether being in general population is
a threat to salety and security, prison officials
can look at the inmate's history of escape
attempts, as well as "evidence'gleaned from the
commissioner's urlique expertise in predicting

inmates' future behavior,' that additional
attempts are likely." Id.
In this case, the court found that the violent
and heinous nature ofMr. Blake's 1987 escape
attempt, his subsequent threats to escape and kill
those involved in bis prosecution, and the
confidcntial testimony ofprison officials that Mr.
Blake had recently engaged in conduct showing
he wanted to escape, were substantial evidence
that placing Mr. Blake in the general population
would be a threat to prison safety and security.
The court further tound that the hearing
officer had not violated Mr. Blake's rights to
due process of law. The hearing officer had
properly denied Mr. Blake's request to call
witnesses and to produce documents that
pertained to prior admirlistrative segregation
hearings because they were irrelevant to the
present proceeding, and the hearing officer
properly rejected Mr. Blake's claim that the
hearing was not completed in a timely manner.
Criminal Law
Is New York's Discretionary Persistent Felony
Offender Law Unconstitutional?

People v. West, 783 N.Y.S.2d 473 (l'l Dep't
2004)
In 1984, Oliver West waS convicted of a
felony for the third time. The sentencing court
found Mr. West to be a persistent felony
offender, as defined by Penal Law § 70.08, and
imposed the mandatory maximum sentence of
life imprisonment, with a mirlimum of IS years.
Mr. West recently filed a motion under Criminal
Procedure Law § 440.20, arguing that under
Apprendi v. New Jersey, 530 U.S. 466 (2000),
and Ring v. Arizon!!, 536 US. 584 (2002), the
New York procedure tor finding a defendant to
be eligible for sentencing as a persistent felony
offender was unconstitutional. The trial court
accepted Mr. West's argument and ordered that
his sentence be vacated. People v. West, 768

Pro Se Vol. IS No. I Winter 2005

Page 12

N.Y.S.2d 802 (Sup. Ct., N.Y. Co., 2003). On
appeal, the Appellate Division, First Department,
reversed the lower court decision and reinstated
the sentence.
In Apprendi, the Supreme Court looked at a
state statute requiring a judge to impose a longer
sentence ifthe judge found, by a preponderance
ofthe evidence, that the crime was in the nature
of a bias crime. The Court held that the statute
violated the defendant's due process rights,
holding that "other than the fact of a prior
conviction, any fact that increases the penalty for
a crime beyond the statutory maximum must be
submitted to the jury and judged against the
reasonable doubt standard." Apprendi, 530 at
469.
In the first Apprendi challenge to New
York's sentencing laws to reach the Court of
Appeals, the Court held that the discretionary
persistent felony offender provisions were
constitutional. People v. Rosen, 96 N.Y.2d 329
(2001). The Court based its decision on its
finding that the only fact that a judge had to find
to sentence a criminal defendant as a persistent
felony offender was whether he had prior felony
convictions. Two federal habeas decisions since
the Rosen decision, Brown v. Greiner, 258
F.Supp2d 68 (E.D.N.Y. 2003) and Rosen v.
Walsh, 02 Civ. 7782 (7/17/03 Hearing Tr.)
(S.D.N.Y.) (Hellerstein, J.) (although no written
opinion was issued, Judge Hellerstein explained
his judgment at a hearing held July 17, 2003),
have found the reasoning in Rosen to be flawed
and have declared discretionary persistent felony
offender sentencing statutes to be
unconstitutional under Apprendi.
A year after Rosen was decided, the U.S.
Supreme Court made its position clear: juries,
not judges, must find the facts that permit a
court to impose enhanced sentences, and such
facts must be found beyond a reasonable doubt.
Ring v. Arizon!!, 536 U.S. 584 (2002). In Ring,
the Court struck down a death penalty statute
that allowed the sentencing judge to decide
whether certain facts had been proven. The

Suprenle Court held that, if an increase in a
defendant's punishment depends on a finding of
fact, that fact must be found hy a jury beyond a
reasonable doubt. Ring. 536 U.S. at 586.
Earlier this year, the New York Court of
Appeals granted leave applications in several
cases challenging the constitutionality of the
state's discretionary persistent sentencing laws.
By the next issue of Pro Se, we should be able
to report whether the Court's decision to grant
leave was in order to reconsider its ruling in
Rosen or to affirm its prior ruling.

Court of Claimf
Expert Testimony Crucial in Delay of
Treatment Cases
Dickerson v. State of New York, Claim No.
100200 (Oct. 31, 2003) (Mignano, 1.)
Cases alleging medical malpractice typically
include failure to diagnose and treat claims
and/or delay in treatment claims. Such cases are
a common occurrence in the Court of Claims.
Often inmates have difficulty proving their
claims because they either do not have facts that
demonstrate liability or because, in litigating pro
se, they do not have access to an expert who can
support their claim of medical malpractice.
However, when the facts are good and an expert
is retained, an inmate can be successfid. In our
2004 Winter Issue of Pro Se, we reported on the
case ofZacchi v. State of New York, N.Y. Ct.
CI.(Claim No. 102854), where the inmate was
awarded $800,000.00 because the State failed to
diagnose and treat his throat cancer. In the
Dickerson case, the inmate, represented by
attorney William Rold, presented convincing
evidence that the delay in diagnosing and
treating his sudden hearing loss resulted in
permanent hearing loss, which could have been
averted.
The sad facts of the case are as follows: On
August 22, 1997, Claimant Dickerson was

Pro Se VoL t5 No. t Winter 2005

exercising in the Fishkill C.F. yard when he
heard a popping sound in his left ear and then
lost his hearing in that ear. Even though he
complained to a correction officer, he was
simply told to go to his cell and rest. The next
morning, he was seen by a nurse due to his
complaints of dizziness, nausea and loss of
hearing in his left ear, but was not provided with
any treatment nor was any medication given. He
finally saw a doctor on August 25, 1997, who
diagnosed "sensory hearing loss," prescribed
some medication, and ordered an ear, nose and
throat (ENT) consult. Mr. Dickerson was not
seen by the ENT specialist until 26 days later.
The ENT ordered an audiogram, an MRI, and a
follow-up visit, but the facility physician, Dr.
Francis, did not request the MRI and audiogram
until November 12, 1997. Although Dr. Francis
did refer Mr. Dickerson back to the specialist on
November 21, 1997, for some reason, he was
not seen by the specialist until January 9, 1998,
over 4Y2 months after the initial hearing loss.
Experts called by Mr. Dickerson during his
trial in the Court of Claims testified that "the
body does not regenerate cells ofthis type and if
treatment is delayed, the damage to hearing and
balance is irreversible." One expert opined that
the delay in treating Mr. Dickerson's symptoms
created a "medical certainty that the patient will
not recover," and that the failure of Dr. Francis
to send claimant to an ENT specialist within 72
hours of the sudden hearing loss "was a
departure from the accepted standard ofmedical
care."
The law is well settled that "the State is
obliged to provide the inmates ofits correctional
facilities with reasonable and adequate medical
treatment." An inmate/patient can sue, alleging
simple negligence and need not produce expert
testimony if "the alleged negligence can readily
be determined by the trier offact upon common
knowledge." However, ifthe inmate is asserting
a claim that the treatment he received was
inadequate or deficient, "the case is premised
upon medical malpractice and a claimant must

Page 13

establish that the medical professional involved
either did not possess or did not use reasonable
care or hislher best judgment in applying the
knowledge and skill ordinarily possessed by
practitioners in the field." Hence the need for
expert testimony in medical malpractice cases.
In the Dickerson case, the court found that
the uncontroverted expert testimony
demonstrated that "Dr. 101m Francis did not
possess or did not use reasonable care or his
best judgment in applying his knowledge or skill
in his treatment of claimant." Based on tlus
finding, the court awarded Mr. Dickerson
$300,000.00: $50,000 for past pain and
suffering and $250,000.00 for future damages,
including future suffering and impairment of
employability.

Wrongful Confinement: No Prejullice
Resulted in Mistlesignation of Tier II as
Tier III
Vasquez v. State, 782 N.Y.S.2d 294 (3d Dep't
2004)
In thi s case, the claimant was charged with
failing to promptly report an injury or illness.
Such a charge should have been disposed of at
Tier II hearing but was improperly designated
for disposition at a Tier III hearing. The claimant
was found guilty and given a penalty of45 days
keeplock, with 15 days suspended, 30 days loss
of commissary, suspended for 60 days, and 30
days loss ofphone privileges. Claimant Vasquez
appealed the disposition and it was subsequently
reversed. Mr. Vasquez then sued in the Court of
Claims, claiming that he was improperly
confined because the misbehavior report should
have been designated as requiring a Tier II
rather than a Tier III hearing. He sought
$4,500.00 in damages. The parties cross-moved
for summary judgment and the court granted the
defendant's motion. The claimant appealed.
The Third Department upheld the decision of
the Court of Claims, finding that there was no

Page 14

Pro So Vol. 15 No. I Winter 2005

prejudice to Ihe claimant in the misdesignation of
the charge as warranting a Tier III, as opposed
to a Tier II hearing. "Inasmuch as the regulations
provide that a misbehavior report charging a
violation of the disciplinary rule requiring
inmates to promptly report illness or injury lllay
be classified by the review officer as either tier I
or tier II disciplinary matter, and the penalty
served of 30 days in keeplock was appropriate
for a tier II disciplinary disposition, claimant
suffered no prejudice a~ a result of the
misdesignation," the court held.

review the hearing minutes but rather, made his
determination to uphold the decision based
solely on the misbehavior report, hearing record
sheet, and hearing officer disposition. The court
was unpersuaded, finding that "neither
regulations nor the mandates of due process
principles require that an officer conducting an
imnate's administrative appcal review the
verbatim record of his disciplinary hearing,
particularly where, as here, the inmate is
afforded judicial review ofthe Hearing Officer's
determination and all the evidence, including the
hearing minutes, is considered in support
thereof"

Administrative Review: Failure of Review
Officer to Listen to Tape Doe.~ Not Deny Due
Process: Failure to Object at Hearing
Constitutes Waiver ofRight to Call Witnesses

ConfidentialInformntion: Failure ofHearing
Officer to Make Independent Assessment of
Reliability ofConfidential Informant

Vigliotti v. Duncan, 781 N.Y.S.2d 800 (3d
Dep't 2004)
Petitioner Vigliotti was found guilty after a
Tier II disciplinary hearing of refusing a direct
order and improper movement. The finding of
guilt was upheld on administrative review and
Mr. Vigliotti sued. The Supreme Court
dismissed his Article 78 proceeding and he
appealed.
Petitioner Vigliotti claimed, anlong other
things, that he was denied the right to call
witnesses when, after three of his witnesses
testified, he indicated to the hearing officer that
"other unidentified inmates would be willing to
testifY if '[there] wasn't enough." The court
found that, since the petitioner did not elaborate
on this nor did he object when the hearing officer
closed the hearing wiiliout calling any more
witnesses, the petitioner waived any objection he
may have had regarding his right to call
additional witnesses.
Petitioner Vigliotti also claimed that he was
denied due process when the administrative
review officer who decided his appeal failed to

Debose v. Selskv, 2004 WL 2697283 (3d Dep't
November 24,2004)
Based upon confidential information, the
Petitioner, an inmate, was charged with
smuggling items into the prison, possessing and
selling alcohol, possessing narcotics, and other
charges. The Petitioner was found guilty of all
the charges following a disciplinary hearing. He
filed an administrative appeal ofthe disposition,
which was affirmed. He then filed an Article 78
alleging that the disposition was not supported
by substantial evidence.
Upon perfonning an in camera review ofthe
confidential information, the Third Department
found in favor of the Petitioner. The court
determined that the hearing officer took
testimony from a correction officer who
conducted an investigation into the Petitioner's
alleged misbehavior. This correction officer
apparently relayed "detailed information" to the
hearing officer regarding his investigation ofthe
smuggling operation but "the information
provided failed to indicate any basis upon which
the officer or the unidentified informants were
able to connect the Petitioner to the smuggling

Pro Se Vol IS No. I Winter 200:S

Page IS

operation." The court found that, based upon a
review of the confidential infol1llation, "it
appears that the Hearing Officer relied on the
correction officer's assessment of the
infOl1llantS' reliability," rather than independently
assessing the credibility and reliability of the
confidential infol1llants. The court noted that
case law is well settled that a disciplinary
disposition based upon hearsay confidential
infol1llation is permissible; however, that
information must be "sufficiently detailed for the
Hearing Officer to make an independent
assessment of the informant's reliability."
Because that was not done in this case, the court
annulled the decision and ordered expungement
ofthe charges.

testimony of a correction sergeant who he
claimed knew of threats that had been made
against him by the officer who x-rayed Brown's
mattress. The court rejected this argument as
well, stating: "Tbe correction sergeant had no
knowledge ofthe events underlying the charges
contained in the misbehavior report and
therefore, was unable to provide relevant
testimony." Although Mr. Brown asserted that
the testimony of the correction sergeant would
have helped to prove retaliation on the part of
the officer who searched Brown's cell, the court
held that: "Petitioner adequately presented his
retaliation defense to the Hearing Officer, who
wa.~ free to reject it as it presented a question of
credibility."

Denial of Witness: Requested Wuness's
Testimony Irrelevant; Oaim of Retaliation
Raises Issue ofCredibility

Substantial Evidence: No Evidence of
Providing Legal Assistance Without Approval

Brown v. Goord, 783 N.Y.S.2d lSI (3d Dep't
2004)
Petitioner Brown, an inmate, was charged
with assaulting an inmate and possession of a
weapon after a correction officer obtained
infol1llation that an inmate had been cut with a
sharp object and a search ofthe Petitioner's cell,
including an x-ray ofhis mattress, resulted in the
discovery of a sharpened piece of metal. Mr.
Brown was found guilty and appealed, and the
penalty was modilied. Mr. Brown sued alleging,
among other things, lack ofsubstantial evidence
and improper denial ofa witness.
The court rejected Mr. Brown's claim of
lack of substantial evidence, finding that the
misbehavior report, together with the unusual
incident report, the testimony of the correction
officer who frisked the Petitioner's cell, the
search itself, and the testimony of a confidential
infol1llant, provided substantial evidence to
support the charges. Mr. Brown also claimed
that he was improperly denied his right to call
witnesses when he requested, but was denied the

Hynes v. Girdich, 781 N.Y.S.2d 710 (3d Dep't
2004)
Upon being transferred from one facility to
another, Petitioner Hynes' property was
searched by a correction officer, who
confiscated various documents in Hynes'
property and charged him with providing legal
assistance without approval and possessing the
crime and sentencing infol1llation of another
inmate. Following a Tier III disciplinary hearing
on the charges, Mr. Hynes was found guilty. The
determination was upheld on administrative
appeal, and Mr. Hynes filed an Article 78
challenging the disposition as not being
supported by substantial evidence.
With respect to the charge ofproviding legal
assistance without approval, the Third
Department agreed. The only proofin support of
that charge "was the misbehavior report and
testimony of the law library supervisor, which
indicated that petitioner was in possession of
legal papers involving other inmates." That, by
itself, did not establish that Mr. Hynes actually
provided unauthorized legal assistance, held the

1'''11016

court. However, wilh respect to the charge that
he was in possession of crime and sentencing
information of another inmate, the court found
that the evidence submitted at the hearing did
support that charge. The victory for Mr. Hynes,
however, was an empty one. In granting relief,
the court noted that, "although the determination
must be modified, remittal for a redetemlination
of the penalty is not required inasmuch as there
was no recommended loss of good time and
petitioner already has served the penalty."

Jail Time
(oun Denies Request jor Jail Time Creditjor
Time Spent in Mandated In-patient
Rehabilitation
Titmas v. Hogue, 2004 WL 2244129, (Sup. Ct.,
Sullivan Co.) (LaBuda, 1.) (Oct. 7,2004)
In a disappointing decision from Sullivan
County Supreme COUIt Judge Frank LaBuda,
the court held that the petitioner, Eric Titmas,
was not entitled to credit toward his sentence for
time he spent in a mandated rehabilitation
hospital prior to his inearceration in a state
facility. The basis of the holding was in Judge
LaBuda's interpretation of the phrase "in
custody."
The facts of the case are as follows: As a
result of an incident which occurred on January
1, 2001, Petitioner Titmas was arrested on
various charges and detained by the Respondent
in the Sullivan County Jail. In May 2001,
Petitioner Titmas pled guilty to one of the
charges in return for an agreement that he serve
a five (5) year determinant prison sentence.
However, prior to sentencing, the Petitioner's
defense counsel and the prosecution jointly
requested that the court defer sentencing so that
Mr. Titmas could receive needed rehabilitation
treatment and counseling.
Judge Frank J. LaBuda held a fact-finding
hearing to decide the question of deferring the

Pro se VoL IS No. 1 Wintor 2005

Petitioner's sentence. The hearing established
that the Petitioner suffered from severe medical
impainnents resulting from a motorcycle
accident in May 1996. According to medical
reports, it was detennined that the extent of
Petitioner Titmas' impairments would make it
extremely difficult for him to adapt to the
conditions of the average prison. It was also
detennined that, if he did not get treatment at
that time, he would suffer further and
irreversible behavioral debilitation.
The hearing record demonstrates the extent
to which Mr. Titmas's impairments would have
affected his ability to be housed in a state prison:
"[I]t was established and conceded by both
parties that the defendant [Mr. Titmas] is a 23
year old man who suffered a severe traumatic
brain injury in a motorcycle accident on May 25,
1996. As a result of his it~uries, he was
unconscious and in a coma for approximately
seven weeks. In addition to the head injury, he
sustained a permanent injury to the left brachial
plexus. His left ann and hand are permanently
paralyzed. Approximately in 1998 detendant
developed a tremor in his right hand suffering
from post traumatic dystonia. The defendant
then had surgically implanted in his brain a
thalmaic stimulator running through his shoulder
up through his neck and into the brain stem. The
thalmaic stimulator is on the "cutting edge" of
neurological surgery and was implanted to
stabilize a serious decline in the defendant's
functional capacity. At the present time based
upon the reports received from the Director of
Head injury Services at the Helen Hayes
hospital, the defendant's residual cognitive
impairments fi·om his brain injury would make it
extremely difficult for him to adapt to the
conditions ofthe average prison ... Although, it
is undisputed that the defendant suffers a
pennanent brain injury affecting attention,
impulse control, social awareness, and all higher
executive functions including judgment and
planning, because of the diffuse axonal injury
wherein the frontal lobes were partially

Pro Se Vol. 15 No. 1 Wini.,,2005

disconnected, it is medically stated the defendant
would be a risk to himself and others ifhe were
incarcerated in the average State's prison system
at this time."
At the hearing, Judge LaBuda also heard
testimony concerning the security of the
proposed rehabilitation center (Stone Bridge), in
an attempt to detennine whether the center was
sufficiently secure to protect the community.
Based upon testimony from an experienced
nurse administrator from Stone Bridge, the
Petitioner would be classified as an "at risk
patient," meaning he would be housed in a men's
ward with limited and controlled access. In
addition, the expert noted that the facility had
only one exit which was manned 24 hours a day.
Because of this, the expert concluded, if the
Petitioner did attempt to leave without
authorization, the facility would be on notice of
such attempt and would, if necessary, restrain
him.
At the conclusion of the hearing, after
finding that he was satisfied that Stone Bridge
provided a secure environment, Judge LaBuda
decided to issue an order adjourning sentencing.
He noted, however, that the Petitioner's stay at
Stone Bridge was not "designed nor intended to
reduce or suspend the five-year prison
sentence."
As a result of the court's order, in June
2001, Mr. Titmas was transferred to Stone
Bridge and detained there for medical treatment
for approximately 13 months. He was returned
to the Sullivan County Jail sometime in July
2002. Pursuant to his plea agreement, in July
2002, he was sentenced to a determinate term of
five (5) years. Also on this date, he was
transferred to the custody of the New York
Department ofCorreetionai Services (hereinafter
"DOCS"). Upon the Petitioner's transfer to
DOCS, the Petitioner learned that the
Respondent certified to DOCS that the
Petitioner had only served 187 days ofjail time,
which did not include the approximately 13
months that the Petitioner spent in Stone Bridge.

Page 17

Petitioner Titmas, through his attorney,
Prisoners' Legal Services ofNew York, sought
credit for this time but was denied. He sued.
The case was once again before Judge
LaBuda. The Petitioner argued that the Court of
Appeals decision in Matter of Hawkins v.
Coughlin, 72 N.Y.2d 158, 531 N.Y.S. 2d
881(1988), controlled. In Hawkins, the Court
referred to the legislative history of Penal Law
§70.30, which demonstrated that the term
"custody" was intended to mean "confinement"
or "detention" under guard and not
"construetive custody" such as release on parole
or bail. The court in Hawkins further pointed out
that the former Penal Law §2193 (I) language
was revised from "prison or jail" to time spent
"in custody," and rather than enumerate the
institutions where one could receive jail time
credit for time spent, the new provisions made
"it clear that jail time includes time spent in
'custody' no matter where the time was spent."
In his decision, Judge LaBuda focused the
Court of Appeals language in Hawkins and
Penal Law §70.30(3). Penal Law §70.30(3)
states, in pertinent part, " ... the term ofa definite
sentence... shall be credited with and diminished
by the amount of time the person spent in
custody prior to the commencement of such
sentence as a result of the charge that
culminated in the sentence." The court found
that Petitioner Titmas's confinement at Stone
Bridge was not aetual "custody," as defined in
the Penal Law or as interpreted in Hawkins. In
reaching this decision, the court noted first that
the Petitioner's confinement at Stone Bridge
was voluntary. Second, the court found that the
Petitioner "was not under guard in the' custody'
sense as there were no handcuffs or confinement
of movement save leaving the grounds of Stone
Bridge," but rather Petitioner "was only in
'constructive custody' as he was on bail to
Stone Bridge at his own request and not as part
ofthe charges that culminated in his sentence."
Finally, the court relied heavily on its own
statement made during the faet-finding hearing,

Page 18

that the rehabilitation time was "in no way
designed nor intended to reduce or in anyway
suspend the five year State's prison sentence."
The Petitioner argued that the entire purpose
of the original fact finding hearing by the
sentencing court was to determine if Stone
Bridge was a secure facility which could
adequately confine and detain Mr. Titmas. The
court found that it was and that if Mr. Titmas
attempted to leave, he would be forcibly
restrained. This type ofconfinement, argued the
Petitioner, amounted to 'custody" under the
Penal Law definition and the Court of Appeals
decision in Hawkins. The Petitioner also argued
that, regardless of what the sentencing court
might have wanted or might have said at
sentencing, it does not have the authority to
supercede Penal Law §70.30 and deny the
Petitioner jail time credit for the time he was
held in 'custody' at Stone Bridge. The Petitioner
asserted that such a denial would actually extend
the period of time that the Petitioner was
sentenced to receive by the sentencing court
from five years to six years and one month. The
court rejected these arguments and found that
Petitioner Titmas was not entitled to sentence
credit for the time he spent in the rehabilitation
center.
The court also noted that the Petitioner's
stay at the rehabilitation center "was not part of
the charges which culminated in his sentence,"
because the court "could have denied his
application for rehabilitation and sentenced him
to state prison instead." And yet, the court also
noted that "it was undisputed that all medical
testimony concurred tbat without extensive
rehabilitation prior to sentencing the defendant
would be a risk to himself and others in an
average prison setting and pose a serious liability
to the New York State Department of
Corrections." Thus, although the court may have
been technically correct that it had the authority
to deny Titmas' application for rehabilitation, to
do so would have--based upon the courts' own
findings--placed Pctitioner at risk and posed a

Pro 50 Vol. 15 No.1 Winter 2005

serious liability to DOCS. The decision is heing
appealed.

Petitioner Titmas is being represented by
Prisoners' Legal Services ofNew York

Parole
Parole Board Not Required to Give Equal
Weight to Ead Statutory Factor
Zhang v. Travis. 782 N.Y.S.2d 156 (3d Dep't
2004)
Petitioner Zhang was convicted and
sentenced to 7 to 21 years in prison as a result of
his involvement in a rohbery of a restaurant. He
appeared before the parole board twice and was
denied parole each time. He reappeared in June
2002, and was again denied, being told that he
could reappear before the Board in 24 months.
After unsuccessfully appealing the denial, he
filed an Article 78 challenging the Board's
decision. Judge Sise, Supreme Court,
Washington County, found that the Board's
determination lacked sufficient detail to "permit
intelligent judicial review" and granted the
petition. The Board of Parole appealed.
The Third Department reversed. Executive
Law §259-(i)(2) sets forth the factors which the
Parole Board must consider in making its
decision on whether to grant discretionary
release on parole. Although there is a list of
factors that must be considered, the court noted,
"the Board is not required to give equal weight
to each statutory factor... nor is it required to
specifically articulate every factor considered"
The court noted that, although the Board did not
specity each factor it considered, a review ofthe
entire record indicated the Board did consider
Petitioner Zhang's "disciplinary record and
program accomplishments, his potential
deportation and postrelease living arrangements,
as well as the violent circumstances of crimes of
which he was convicted." Thus, the conrt

Page 19

Pro Se Vol. 15 No.1 Winter 2005

reversed the judgment below, holding that the
record was "sufficiently detailed to pennit
intelligent judicial review of the grounds for the
Board's denial of parole release."

[ Pro Se Practice
Inmate Testimony Where Mental Illness is an
Issue
Introduction

Under certain conditions, discussed later in
this article, an inmate's mental illness or limited
intellectual ability may be an issue in a Tier III
disciplinary hearing. Where mental illness or
limited intellectual ability is considered an issue,
it may be useful for the inmate to testifY about
his or her mental condition. In addition, the
inmate should consider calling witnesses who
can testifY about the inmate's mental condition at
or near the time of the incident resulting in the
misbehavior report.
Recent regulations, effective May 1, 2004,
state the circumstances under which an inmate's
mental condition may be an issue that a hearing
officer must consider in Tier III disciplinary
proceedings. These new regulations, found in
Title 7 of the New York Code of Rules and
Regulations (NYCRR), resulted from the
agreement reached in a class action lawsuit,
Anderson v. Goord (87-CV-141, N.D.N.Y.).
The inmate plaintiffs in this federal lawsuit were
represented by Prisoners' Legal Services ofNew
York and the Prisoners' Rights Project of The
Legal Aid Society. An article on the Anderson
settlement was published in an earlier issue of
Pro Se (Vol. 14, Number 1: Winter 2004).
Although the new regulations require hearing
officers to consider an inmate's mental
condition, these changes do not free inmates
from their obligation to obey prison rules.
Inmates who violate prison rules still face the

prospect ofloss ofgood time and confinement in
the Special Housing Unit.
Why is mental condition a C;rcum.vtance that
you may want the hearing officer to comiller?

The amended regulations governing Tier III
hearings require a hearing officer to consider an
inmate's mental status under certain specified
condition. See, 7 NYCRR254.6[b]. These rules
also allow the hearing offieer to dismiss the
charges if the "penalty would serve no useful
purpose" in light of the inmate's mental
condition. See, 7 NYCRR 254.6[f].
Because consideration of mental condition
may result in no sentence, a suspended sentence,
or a reduced sentence, you should consider
offering proofabout your mental condition ifthe
circumstances pemJit. These circumstances are
explained below.
When is mental condition an issue thut the
hearing officer must consider?

The NYCRR defines the circumstances
under which an inmate's condition is an issue
that must be considered by the hearing officer.
These criteria are listed in 7 NYCRR 254.6[b].
Note that the criteria for mental illness, what the
regulations refer to as "mental state," are listed
in [b][1], while the criteria for limited intellectual
capacity are presented in [b][2].
Mental llIness
A hearing officer must consider mental
illness as an issue in a Tier III disciplinary
hearing when:

"*
"*

the inmate has an Office of Mental Health
(OMH) Levell classification, 7 NYCRR
254.6[b](1 ][1]; or
the inmate is charged with self harm,
7 NYCRR 254.6[b][1][ii]; or

Pro Se Vol. 15 No. I Winter 2005

Page 211

* the incident took place while the inmate
was being transported to or from the
Central New York Psychiatric Center
(CNYPC), 7 NYCRR 254.6[b][I][iii]; or

* the inmate was an inpatient at CNYPC
within nine months of the incident resulting
in the Tier 1Il hearing; 7 NYCRR
254.6[b][I][iv]; or

* the incident took place while the inmate
was assigned to an OMH satellite unit or
the intermediate care program, 7 NYCRR
254.6[b][I][v]; or

* the
incident took place while the inmate
was being escorted to or fi·om an OMH

Tlus kind of testimony is also useful where the
inmate's situation fits witlun the other criteria
listed above. A discussion ofthe inmate's role
as a witness is presented later in this article.

Limited Intellectual Capacity
Mental condition may also be an issue that
must be considered if the inmate suffers from
limited intellectual capacity. The NYCRR
offers three criteria to determine whether an
inmate's intellectual capacity must be
considered as an issue in a Tier 1Il hearing.
The issue of intellectual capacity must be
considered when:

* the incident took place while the inmate
was in the special needs unit at the Wende,
Arthurkill, or Sullivan Correctional
Facilities; 7 NYCRR 254.6[b][2][I]; or

satellite unit or intermediate care program,
7 NYCRR 254.6[b][1][vi]; or

*

the hearing was delayed or adjourned
because the inmate beeame an inpatient at
CNYPC or was assigned to an OMH
satellite unit, 7 NYCRR 254.6[b][1][vii];
or

* inmate
it appears to the hearing officer that the
was mentally impaired at the time
of the incident or at the time of the he,aring,
7 NYCRR 254.6[b][I][viiij.
This last condition, [b][I][viii], is
important because it allows a hearing otIker to
consider mental illness evell ifthe other criteria
are not met. Thus, an inmate may ask the
hearing officer to consider mental illness as a
factor under [b][1][viii], even though he or she
does not fit within the other criteria (for
.
example, a recellt CNYPC hospitalization).
In situations where an inmate asks for
consideration Imder [b][ 1][viii], it would be
very helpful for the inmate to present the
hearing officer with information about his or
her psychiatric history and current symptoms.

* the inmate has not scored above 69 on an
intelligence test or above a 3.0 grade level
in reading in assessments conducted by the
Department of Correctional Services,
7 NYCRR 254.6[b][2][ii]; or

*

it appears to the hearing officer that the
inmate may have been intellectually
impaired at the time of the charged
misconduct or may be impaired at the time
of the hearing, 7 NYCRR 254.6[b][2][iiij.

This last condition allows a hearing officer
to consider an inmate's intellectual limitations,
even where the inmate does not fall within the
other two categories (low test scores and
placement in the special needs unit). If the
inmate suffers from intellectual limitations, he
or she should testifY about those linutations,
even if he or she does not satis/)' the criteria
pertaining to low test scores and special needs
placement.

Pro Se VoL 15 No.1 Winter 2005

Page 21

May anlnmale Present Testimony About
Mental Condition?

satisfied.

As a general matter, an inmate has a right to
present evidence in a disciplinary proceeding.
7 NYCRR 254.5; Johnson v. Goord, 669
NYS2d 434 (3dDep't 1998)(reversingtheSHU
sentence where the inmate's constitutional right
to call witnesses was violated by the hearing
oftlcer). See, Wolffv. McDonnell, 418 U.S. 539,
94 S.Ct. 2963, 2976 (1974)(recognizinglimited
due process rights in prison disciplinary hearings
including the "opportunity to be heard").
Testimony that is not "material" (relevant) or
is "redundant" (repetitive) or constitutes a
security threat may be excluded by the hearing
officer. 7 NYCRR 254.5. A hearing officer,
however, does not have an "unlimited right" to
exclude inmate testimony, Butler v. Irvin, 661
NYS2d 138 (4lh Dep't 1997)(disciplinary action
annulled where the hearing officer refused to
allow inmate testimony about the alleged forgery
ofa claim form). See also, Escoto v. Goord, 779
NYS2d 314, 316 (3d Dep't 2004) [discussed in
Pro Se, Vol. 14, Number 3, October 2004 at 27]
(reversing disciplinary action and noting that a
hearing officer is obligated to comply with an
inmate's "reasonable requests" for testimony).
Testimony about the inmate's mental
condition is relevant to a disciplinary hearing
when the inmate satisfies at least one of the
criteria set forth in 7 NYCRR 254.6[b]
(discussed earlier in this article). The materiality
orrelevallce oftestimony about mental condition
is made clear in the 6[b] rule: "When an inmate's
mental state or intellectual capacity is at issue, a
hearing officer shall consider evidence regarding
the inmate's mental condition or intellectual
capacity at the time of the incident and at the
time of the hearing.... "
In short, testimony about an inmate's mental
health is "material" (a requirement of7 NYCRR
254.5[a]) because a recently added regulation
(7 NYCRR 254.6[b]) requires a hearing officer
to consider such evidence if certain criteria are

if your mental health or intellectual capacity

What kind oftestimony would be useful to you
were at issue?
Keep in mind that the hearing officer must
obtain the confidential testimony of an OMH
clinician (ordinarily a social worker, nurse, or
psychologist) when your mental illness is an
issue in the hearing. See,7NYCRR254.6[c][3].
This rule expressly requires that the clinical
testimony be given "out of the presence of the
inmate and on a confidential tape." If your
limited intellectual capacity is an issue, the
hearing officer must obtain the testimony of a
teacher or counselor, and this testimony (like the
testimony of an OMH clinician) cannot be
disclosed to you. 7 NYCRR 254.6[c][4].
Even though an OMH clinical witness offers
evidence about your mental condition, it may be
useful for you to also present testimony about
tlris issue. Ifyou are suffering from mental illness
or limited intellectual capacity, you have firsthand knowledge of your problems and the
treatment for those problems.
For example, the OMH witness may not
know about pre-prison psychiatric treatment. Do
not assume that the OMH witness will give
testimony about psychiatric treatment provided
before you entered the custody of the
Department ofCorrectional Services (DOCS). If
there is a history of psychiatric treatment before
prison, you should give testimony about the
reasons for that treatment. If possible, you
should teU the hearing officer about the
diagnosis and the medication prescribed. If you
do not know the psychiatric term describing the
diagnosis, you should testifY about tbe
symptoms that were treated. Ifyou do not know
the name of the medication, inform the hearing
officer about the purpose and effect ofthe drug
that was prescribed. In fact, provide this
information even if you are able to provide the
name ofthe medication. These details will enable

Page 22

the hearing officer to more fully consider your
mental condition.
In addition to testifYing about any mental
health treatment given prior to entering DOCS
custody, inform the hearing officer about your
mental condition while in prison. Do not assume
that the OMH witness will testifY about all the
facts relevant to your situation. For example, if
OMH has stopped a prescription, you should
testifY about the circumstances that resulted in
the doctor's order ending the medication. If side
effects led to the discontinuation of a
prescription, you should give testimony about
those circumstances. If the medication did not
work and no substitute was prescribed, that lact
should also be presented to the hearing officer.
The hearing officer should not be allowed to
mistakenly conclude that OMH stopped the
medication because you were found to have no
mental illness or that you refused to take the
medication for no good reason.
In some cases, an inmate's mental condition
may present an issue for the hearing officer, even
though the inmate is not currently receiving
treatment from OMH. For example, a hearing
officer must consider the mental condition ofan
inmate not currently receiving OMH treatment
where the inmate had been a patient at CNYPC
within nine months of the charged misconduct.
See, 7 NYCRR 254.6[b][I][iv].
If you are not receiving OMH trcatment at
the time of the hearing, the circumstances
involving the tennination of any prior treatment
should be explained to the hearing officer. Those
circumstances might include termination of
treatment resulting from: I) a decision by OMH
that you no longer have a treatable mental
illness; 2) a change of diagnosis by OMH; 3)
lack of access to OMH services because of
actions taken by the cOiTection staff; 4) trips to
court on other charges; 5) medication side
effects; or 6) the OMH staff's conclusion that
the treatment was not working. In any event,
you should explain your mental condition to the
hearing officer ifthis condition is relevant to the

Pro So VoL IS No. I Winter 2005

charged misconduct, even if you are not
currently receiving services from OMH.
In addition to testifYing about your mental
condition, it may be useful to obtain the
testimony of another person familiar with your
state of mind at or near the time of the charged
miscondnct. This person might be another
inmate or a civilian or uniformed member of the
prison staft~
Ask, on the record, that the hearing officer
call such a witness. Explain that this witness has
information relevant to your mental condition at
or ne.ar the time ofthe charged misc,onduct. For
example, the witness may have observed that
you were very upset or imagining things just
prior to the incident. In snch a situation, it
should be explained to the hearing officer that
this witness is able to offer observations about
your mental condition at the time ofthe incident.
As discussed earlier in tins article, this kind
of testimony is "material," see, 7 NYCRR
254.5[a], in a hearing when) the inmate's mental
condition is an issue. See., 7 NYCRR
254.6[b][I]. Evidence is "material" where it
tends to prove or disprove a lact at issue in a
legal proceeding.
When making a request for particular
testimony, you should always tty to explain the
materiality of such testimony_ In other words,
you should infol111 the hearing officer why the
requested evidence is relevant to the
detennillation of an issue that will be decided
during the proceedings.

What response i.5 6U!N!Ssary if the hearing
officer does not allowyou to present testimmly
about pour mental condition?
In some situations, the hearing officer may
attempt to limit your testimony about your
mental condition. The hearing officer may claim
that your testimony about your mental condition
is unne.cessary in light ofthe evidence presented
by (or expected to be presented by) the OMH
witness. When faced with this situation, you

Pro Se VoL 15 No. I Winler 2005

should respectfi.dly point out that hecause the
OMH testimony is confidential, you do not
know what points were covered (or will be
covered) by the OMH witness and what points
were omitted. You should also respectfully
object to the hearing officer's mling and ask for
permission to present testimony explaining your
symptoms, the treatment given for those
symptoms, and how your own mental condition
influenced the conduct charged in the
misbehavior report.
It is a good idea to come to the hearing with
a briefwritten statement describing your mental
condition. That statement should include
information about diagnosis and treatment The
statement should also explain how your mental
condition influenced your thinking and conduct
at the time ofthe incident for which you received
a ticket Ask the hearing officer to allow you to
make your written statement part ofthe hearing
record if he or she prevents you .from testifying
about your mental condition. You should object
to the exclusion of your testimony even if the
hearing officer allows the introduction of the
written statement
A hearing officer's mistaken exclusion of
evidence requested by an inmate is the kind of
error that may result in a court order annulling a
disciplinary determination. Sec, Escoto v. Goord
(discussed earlier in this article). In order for a
court to consider an inmate's claim about the
mistaken exclusion ofevidence, the record ofthe
hearing must show that the inmate I) requested
permission to introduce a particular piece of
evidence and 2) objected to the filling denying
admission of the requested evidence. Your
objection to the hearing officer's mling should
include an explanation of the importance of the
evidence you want to introduce. You must
"preserve" a claim about a mistaken mling by
informing the hearing officer about his or her
error when the mling is made or soon as possible
thereafter.
When courts refer to a failure to "preserve"
an issue, what is meant is that there has been a

Page 23

failure to make a timely objection to a mling that
is claime.d to be mistaken. See, Towles v.
Selsky. 783 NYS2d 431, 433 (3d Dep't 2004)
("[Inmate] [p]etitioner's assertion that he was
improperly denied the right to present a
character witness has not been preserved for our
review inasmuch he failed to raise an objection
at the hearing."); Colon v. Goord, 783 NYS2d
158, 159 (3d Dep't 2004) ("Inasmuch as no
objection to the lack ofany witnesses' testimony
or documents was made at the hearing, [inmate]
petitioner failed to preserve these issues for our
review."); McClean v. LeFevre, 531 NYS2d
411,412 (3d Dep't 1988) (inmate's objection to
the exclusion of witnesses was found to be
waived where the inmate failed "to insist that the
inmate witnesses be produced or to request that
inquiry be made as to why they were not willing
to testifY at a time when the alleged error [by the
heating officer] could have been corrected").
While there are no "magic" words that
constitute a sufficient objection, you must phrase
your objection so that the hearing officer knows
what evidence you want presented and why that
evidence is material to an issue in the
proceedings. If the hearing officer denies your
objection, you must raise this issue in your
administrative appeal to preserve your right to
raise it in court. ~, Rosario v. Goord,783
NYS2d 726, 727 (3d Dep't 2004) (claims not
preserved for review by the appeals court where
the inmate failed to raise the issue at the hearing
or in the administrative appeal).
CORRECTION
One of our readers has pointed out to us that in our
last issue ofPro Se, Vol. 14 No.3, at Page 18, we
cited the case of McC\lI1e v Lile, 536 U.S.70
(1973). 'lnat cite was wrong. The correct cite is
McKlUle v. Lile, 536 U.S. 24 (2002)

We apologize for this t,TIor.

Pro Se Vol. IS No. 1 Winler 2005

Page 24

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EDITOR: KAREN MURTAGH.MONKS, ESQ.
CONTRIBUTORS: TOM TERRIZZI, ESQ., MICHAEL CASSIDY, ESQ.,
BETSY HtITCHlNGS, ESQ., BRAD RIIDIN, ESQ.
COpy EDITOR: FRANCES GOLDBERG PRODUCTiON: FRANCES GOLDBERG
EDITORiAL BOARD: TOM TERRIZZJ. ESQ., BETSY SmRLING, ESQ. KAREN MURTAGH-MONKS, ESQ.

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