Vol. 17, No. 3; Summer 2007 Published by Prisoners’ Legal Services of New York

HINTS OF CHANGE AT PAROLE
Eighteen months after the state was sued over its
extremely low parole rates for violent offenders,
and more than seven months of a new
administration in Albany, the New York Law
Journal reports indications that Parole Boards are
easing back on what critics had contended was, in
effect, an unwritten policy of denying parole to
inmates based solely on the circumstances of their
crime.
According to the Journal, whereas Parole
Boards under former Governor George E. Pataki
were releasing violent A-1 felons at a rate of
between 3 percent and 5 percent from 2000 to 2005,
more than 11 percent of such felons were granted
release in 2006; more than 15 percent were released
from January to July 2007, and June’s release rate
was 26.7--a release percentage not seen in New
York since the early 1990s, when boards appointed
by former Governor Mario Cuomo were making
release decisions.
Additionally, there are ongoing settlement talks
in the federal litigation against the state, Graziano v.
Pataki, in which inmates charged that the Division
of Parole was unlawfully making parole decisions
based solely on the seriousness of an inmate’s
crime.
George B. Alexander, Parole Chairman
appointed by Governor Eliot Spitzer, told the Law
Journal that it is Mr. Spitzer's policy, as well as his
own, that commissioners consider and weigh a

range of factors about an inmate, not just the nature
of the crime, when deciding on parole eligibility.
Mr. Alexander said he believes the Governor has
given the Board the “autonomy” to do its job, and
higher release rates may be the result. “If there has
been any hesitation [to grant parole] in the past, I
think people feel more able to do the jobs that they
were entrusted with in this administration,” said
…article continued on Page 3

Also Inside…
Sentence Reform Commission
Gets Underway . . . . . . . . . . page 4
Case Note: Reviewing Your
Pre-Sentence Report . . . . . . page 21
Litigating an Excessive
Force Claim in the
Court of Claims . . . . . . . . . . page 22
Subscribe to Pro Se! See back page for details

This project is supported in part by grants from the New York State Division of Criminal Justice Services, the New York State Bar
Foundation, and the Tompkins County Bar Association. Points of view in this document are those of the author and do not represent
the official position or policies of the grantors.

Page 2

Vol. 17, No. 3; Spring 2007

A Message From Susan Johnson, Executive Director
The election of Governor Eliot Spitzer
appears to have brought with it a welcome
change in the way in which New York
addresses prisoners’ issues. As we reported in
our Winter 2007 issue of Pro Se, just eight days
after being elected, Governor Spitzer issued an
Executive Order that sharply cut the cost of
collect calls from prisons in New York State.
More recently, on July 19, 2007,
Governor Spitzer signed into law the Family
Connections bill, which states that prison
telephone service is a right and not a revenue
generator. In addition, as this issue of Pro Se
notes, Governor Spitzer has also recently signed
legislation that suspends rather than terminates
Medicaid benefits for prisoners while they are
incarcerated. This law enables inmates to
reenter society without having to wait two to
three months for their benefits to restart.
Governor Spitzer has also issued Executive
Order #10, which created a New York State
Commission on Sentencing Reform. The Order
states that the goal of the Commission is to
perform a comprehensive review of New York’s
current sentencing structure. As part of that
review, the subcommittee on Incarceration and
Reentry will be evaluating the extent to which
education and reentry preparation programs can
facilitate the readiness of inmates to transition
into the community and reduce recidivism.
Finally, as the cover story of this issue of Pro Se
notes, there has apparently been a change in
attitude regarding the way in which Parole
decisions should be made, the result being a
significant increase in the number of inmates
being release to parole since Governor Spitzer
has taken office.
Taken individually, any one of these events
could be seen as progress in the fight for
criminal justice reform. Taken together, the
message is much stronger. New York State is

committed to rehabilitation, reentry, and
reducing recidivism. The present administration
realizes that it is crucial to successful
reintegration that reentry services begin before
an inmate leaves prison. Individuals who have
been neglected, unfairly treated, or mistreated
while in prison are far more likely to be a public
safety risk upon release than those who have
had access to programs, education, and
appropriate medical and mental health care. For
more than thirty years, PLS has helped to
reduce that safety risk by assisting individuals
while in prison, ensuring that prisoners are
treated fairly, that they receive the programs,
medical and mental health treatment they need,
and that they maintain contact with their
families so as to facilitate their reintegration
into society. Years ago, PLS also played a
significant role in specific reentry programs, but
due to drastic funding cuts, we were forced to
cut back on the services we could provide. But,
the winds have shifted and PLS is working hard
to secure increased funding so we can provide
such services again.
Although it is too early to tell what effect
the recent changes in the law will have on
reducing recidivism, it is extremely clear, at this
juncture, that the Governor and those who he
has placed in administrative positions share a
common goal: to increase public safety by
decreasing the likelihood that individuals will
re-offend. Facilitating family contact, ensuring
that individuals who are released from prison
can obtain the medical and mental health
services that they need, restructuring our
sentencing laws with a focus toward education
and reentry, and encouraging the Parole Board
to consider all the factors that are relevant to
release are all ways in which to achieve this
goal.

Vol. 17, No. 3; Summer 2007

…article continued from Page 1

Mr. Alexander, a former Erie County
Department of Probation commissioner.
Soon after taking over at the Board this
winter, Mr. Alexander notified commissioners
that they are bound to consider several factors
when hearing parole cases under Executive Law
§ 259-i. They include not only the nature of the
crimes, but also whether the inmates pose a risk
to others if released, their prospects for
re-entering society, and their efforts to improve
personally while incarcerated.
Critics of the system as it had come to
operate under Mr. Pataki argued that the
commissioners--all of whom were eventually
appointed by the former Governor--gave
inordinate consideration to the circumstances of
the crimes and little or none to the efforts
inmates made, often over decades, to improve
themselves.
Robert N. Isseks, the lawyer representing
the Plaintiffs in the Graziano suit, said there has
been something of an easing of Parole Board
decisions toward violent inmates. He attributes
that, in part, to his January 2006 litigation on
behalf of inmates who contend they were denied
parole unlawfully by Boards who failed to
weigh all factors relevant to their release.
Amy James-Oliveras, who is active in
several parole reform and inmate relatives
groups, said she has been at meetings involving
Mr. Alexander at which he has assured families
that a new attitude is in place and that the
families are an important factor in an inmate's
successful reentry into society. It was the first
time the chairman has met with the families of
inmates, she said. “They expressed that there
was a new atmosphere and that there was a new
balanced approach…but that it would take
time,” said Ms. James-Oliveras, of Wappingers
Falls. Her husband, George Oliveras, served 27
years of a 25-years-to-life term for murder
before being paroled. Ms. James-Oliveras said

Page 3

she is worried, however, that a more
open-minded attitude by Parole Boards could
vanish overnight if Mr. Spitzer is politically
embarrassed by the actions of a parolee. “I think
it would be his Willie Horton if any of these
high-profile guys get out and commit a crime,"
she said. “I don't think it will be seen as an
individual. It will be seen as, ‘No one should be
paroled.’”
…see related articles, Page 13

News and Briefs

New Law Reinstates Inmates to Medicaid
Immediately Upon Release
Under a new law signed by Governor
Spitzer in July, inmates who were receiving
Medicaid benefits prior to their incarceration
will be immediately reinstated to the Medicaid
rolls upon their release.
Medicaid is a joint federal/state health care
program for low income persons and persons
with disabilities.
Under prior law, Medicaid benefits were
terminated during incarceration. Inmates had to
reapply for benefits when they were released, a
process which took two to three months and
could result in delays in obtaining treatment and
services at a time when they were greatly
needed. Those delays caused many former
prisoners to forgo needed medical care, even in
cases of serious illnesses or addiction.
The New York Times, for example, recently
reported the stories of Sheryl Sohn and Rufus
Dantzler. Ms. Sohn learned while in prison that
she had an advanced case of Hepatitis C that
had ravaged her liver. Prison doctors prescribed
medicine to ease her symptoms and put her on
a liver transplant list. When she was released

Page 4

last December, however, a pharmacist at a CVS
told her that until her Medicaid benefits were
reapproved, she would have to pay for her
medication. She was told the same thing when
she tried to have her prescription filled at Kings
County Medical Center in Brooklyn. For a
month, Ms. Sohn went without the drugs she
needed, even as her body grew achy, itchy, and
bloated. “I could have gone into liver failure at
any time,” she said. She eventually checked
herself into the SUNY Health Science Center at
Brooklyn, and, in May, had a liver transplant at
Mount Sinai Hospital.
Mr. Dantzler was ordered, upon his release,
to get treatment for alcoholism and marijuana
abuse. But when he arrived at the program, he
was told that he would have to pay for treatment
because his Medicaid coverage had not yet
started. Mr. Dantzler had to put his treatment on
hold while he waited for Medicaid, jeopardizing
his parole.
Under the new law, Medicaid will be
suspended, not terminated, during incarceration,
and inmates will have their Medicaid coverage
immediately reinstated once they are released.
Advocates for inmates praised the new law,
but pointed out that it only helps those who
were already on the Medicaid rolls prior to their
incarceration. “The next step is to go beyond
suspension to make sure that every person
leaving prison has health care coverage,
regardless of whether or not they had it before,”
said Tamar Kraft-Stolar, Director of the Women
in Prison Project at the Correctional Association
of New York.
Sentence Reform Commission Reviews State’s
Complex, Inconsistent Sentencing Scheme
This past March, Governor Spitzer
established the New York State Commission on
Sentencing Reform and ordered it to conduct “a
comprehensive review of New York’s current
sentencing structure, sentencing practices,

Vol. 17, No. 3; Spring 2007

community supervision, and the use of
alternatives to incarceration” and make
recommendations for future legislative changes.
The Governor charged the Commission with
exploring the following issues:
T the current complex and sometimes
inconsistent structure of New York
sentencing laws, which include
indeterminate sentences, determinate
sentences, definite sentences, sentences of
parole supervision, merit time, supplemental
merit time, shock incarceration, temporary
release, presumptive release, and
conditional release;
T the uniformity, consistency, certainty, and
adequacy of the sentences produced by the
current system;
T whether the lengths of imprisonment that
the system produces are equitable and
whether there exist either too many barriers
to or insufficient incentives for alternatives
to incarceration;
T the ability of education and job training to
ease reentry and reduce recidivism;
T the impact of current sentencing practice on
state resources;
T the relationship of sentencing to public
safety and recidivism; and
T future trends in sentencing.
The Commission held its first two public
sessions in June and July. At its initial session,
members criticized the current sentencing
structure. Michael C. Green, the District
Attorney of Monroe County, said the sentencing
system is a “mess.”According to him, it fails to
provide flexibility to help offenders with such
programs as drug treatment. Although he
advocated for strict punishment for violent
offenders, he said the State also has an
obligation “to deal with those people who can
and want to be helped.” He said he would argue
for the greater use of alternatives to
incarceration, especially the diversion of

Vol. 17, No. 3; Summer 2007

nonviolent drug offenders to treatment instead
of prison. State Senator Eric Schneiderman
noted that the State’s mandatory minimum
sentences for drug offenders are far stricter than
in many states in the South and the West. He
said, “We have to deal with the fact that our
sentencing structure is out of line with the rest
of the country for nonviolent drug offenders.”
State Assemblyman Joseph Lentol said that the
State’s criminal statutes are “disjointed,
confusing and inconsistent,” producing
unpredictability for defendants, attorneys,
judges, and crime victims. “No one, even those
who practice in this area of law on a daily basis,
are sure how the law will be applied in a
particular case,” Mr. Lentol said.
At its second meeting, in July, the
Commission heard from witnesses representing
the judiciary, prosecutors, and defendants.
A state judge emphasized the need for more
consistency in sentences. He noted that, in some
circumstances, a defendant could face a
determinate sentence between 5 and 25 years,
meaning that two persons convicted of the same
offense could end up serving sentences that
diverge by as much as 20 years.
Witnesses for defendants testified in favor
of doing away with mandatory minimum
sentences and for increased focus on treatment
for drug offenses. Jonathan Gradess, Executive
Director of the New York State Defender
Association, called for reducing the influence of
the prosecution when it comes to sentencing and
plea bargains, and a philosophy that views
treatment as optimal and jail as a last resort.
Gabriel Sayegh of the Drug Policy Alliance,
urged the Commission to offer first- and
second-time nonviolent drug offenders a choice
of treatment rather than incarceration. He
suggested viewing drugs as a disease, not a
crime. “If I have cancer I'm not going to talk to
a lawyer,” he said. “Why do we do that with
drug abuse?”

Page 5

The parents of Ashley O’Donoghue, who is
serving a 7-to-21-year sentence for a first-time,
nonviolent drug offense under the Rockefeller
Drug Laws, testified about the need for further
reform of those laws, and handed out articles
about their son.
Members of the prosecution bar took a
different view. Bridget G. Brennan, New York
City’s special narcotics prosecutor, and Michael
E. Bongiorno, the Rockland County District
Attorney, said reforms to the Rockefeller Drug
Laws had given benefits to some offenders who
did not deserve them. “Nonviolent drug
offenders: There’s no such thing,” said
Mr. Bongiorno, adding that drug crimes, by
their very nature, did violence to users, and
calling for enhanced penalties for repeat
marijuana offenders and for drug offenders
caught with weapons. Bronx District Attorney
Robert Johnson argued that members of his
community favored a strict approach to
sentencing in order to improve safety in their
neighborhoods and asked the Commission not
to reduce the role that prosecutors play in
sentencing, in favor of increasing the discretion
given to judges. “We have a greater link to the
community than the judge,” Mr. Johnson said
and added, in apparent reference to
O’Donoghue’s testimony, that only a “small
minority” advocated further changes in the drug
laws, that they don’t speak for the “silent
majority” in New York who are happy with the
status quo, and that some family members had
let their personal experience cloud their
judgment.
The Commission is directed to issue an
initial report of its findings and
recommendations by October 1, 2007, with a
final report to follow by March 1, 2008.
Practice pointer: The Sentence Reform
Commission is chaired by Denise O’Donnell, a
former U.S. Attorney in Buffalo and Current

Page 6

Chairwoman of the Division of Criminal Justice
Services. Other members include: Juanita Bing
Newton, Administrative Judge of the Criminal
Court of the City of New York; Brian Fischer,
Commissioner of the Department of
Correctional Services; George Alexander,
Chairman of the State Parole Board; Michael
McDermott, a former Albany County District
Attorney; Michael C. Green, the District
Attorney of Monroe County; Anthony Bergamo,
Chief Executive Officer of Niagara Falls
Redevelopment; State Senator Eric
Schneiderman (Democrat, Manhattan); and
State Assemblyman Joseph Lentol (Democrat,
Brooklyn).
To contribute your views about New York’s
current sentencing structure to the Sentence
Reform Commission, write to Denise
O’Donnell, Chairwoman, NYS Commission on
Sentencing Reform, 4 Tower Place,10th Floor,
Albany, New York 12203-3764
Court Expresses Concern Over Sex Offender
Management and Treatment Act
State v. Junco, (Sup. Ct., Washington
Co.)(May 3, 2007) (Krogmann, J. ) (Unreported
Decision)
New York’s new Sex Offender Management
and Treatment Act (“SOMTA”) permits the
State to hold allegedly dangerous sex offenders
in a psychiatric treatment facility after the terms
of their incarceration have expired.
Under the law, codified as Article 10 of the
Mental Hygiene Law (“MHL”), convicted sex
offenders who are nearing the ends of their
sentences have their cases reviewed by a “Case
Review Team” established by the State Office
of Mental Health (“OMH”). If the Care Review
Team determines that they meet the definition in
the law of a “sex offender requiring civil
management,” they are referred to a legal
proceeding for possible civil confinement.

Vol. 17, No. 3; Spring 2007

The new law defines a “sex offender
requiring civil management” as one who is
suffering from a “mental abnormality” which
“predisposes him or her to the commission of
conduct constituting a sex offense and that
results in that person having serious difficulty in
controlling such conduct.”
The legal proceeding to which such persons
may be referred has three parts. In the first part,
a judge decides whether there is “probable
cause” to conclude that the offender is a “sex
offender needing civil management.” If there is
probable cause, the case is referred to a jury,
which must decide the same question. If the jury
unanimously agrees that there is “clear and
convincing evidence” that the offender is a “sex
offender needing civil management,” the judge
must hold yet another hearing to determine
whether the offender should be civilly
committed or subjected to intensive parole
supervision.
In the first court decision since the
enactment of the new law, a State Supreme
Court Judge rejected the State’s position that the
probable cause portion of the legal proceeding
was intended to be nothing more than a brief,
summary proceeding, to be dispensed with in a
matter of hours, and expressed concerns about
the adequacy of the work of the Case Review
Team.
In a four-day probable cause hearing, the
court permitted the Respondent, a convicted sex
offender who had been referred for civil
management by a Case Review Team, to
conduct an extensive cross-examination of the
State’s expert, an OMH psychiatrist who had
participated in the decision.
The psychiatrist had evaluated the
Respondent shortly before his maximum
expiration date and concluded that he suffered
from an “Impulse Control Disorder,” which
made him a “danger to others” and required his
“strict and intensive supervision in an OMH
Psychiatric Facility with a Sexual Offender

Vol. 17, No. 3; Summer 2007

Program and an Aggression Replacement
Therapy Program.” The decision of the Case
Review Team was based largely this psychiatric
diagnosis.
Under the cross-examination permitted by
the court, however, the Respondent showed the
psychiatric evaluation suffered from several
shortcomings.
For instance: Although the State psychiatrist
believed that the Respondent suffered from an
“Impulse Control Disorder,” he could not
conclude that he had “serious” difficulty in
controlling his conduct”--one of the elements
required by the statute for a finding that a sex
offender requires civil management.
Further, although the Respondent had been
subjected to numerous psychiatric evaluations
in DOCS’ custody over a prolonged period of
time (since 1992), he had never previously been
diagnosed with Impulse Control Disorder--until
the State psychiatrist’s evaluation on the eve of
the Respondent’s release date.
In addition, the psychiatrist relied on the
number of Misbehavior Reports that the
Respondent had received in custody without
being aware of the circumstances surrounding
them. Furthermore, he considered a criminal
charge against the Respondent in 1991 which
had been dismissed; he did not know that a
determination had been made that there was no
sexual contact with the victim in the
Respondent’s current offense; he had not been
provided with any of the many favorable reports
submitted regarding the Respondent’s behavior
in custody; and had conducted only a one-hour
interview with the Respondent prior to making
his diagnosis--about which, the court noted, he
“incredibly” took no notes.
The court held that the flaws in the State
psychiatrist’s presentation were not so great as
to prevent it from finding probable cause that
the Respondent was a “sex offender requiring
civil management.” It nevertheless expressed its
“concern” about the quality of his testimony and

Page 7

cautioned the State that at the trial stage of the
SOMTA proceeding, it “will be held to a more
strict burden of establishing by clear and
convincing evidence that the respondent is a
detained sex offender who suffers from a mental
abnormality.”
Practice pointer: Inmates who may be
subject to SOMTA are entitled to free
representation in the three stages of the legal
proceeding required by SOMTA. Representation
is provided by Mental Hygiene Legal Services.
If you believe you may be subject to SOMTA,
you should contact MHLS at any of the
following addresses: 40 Steuben Street,
Suite 501, Albany, New York 12207 (Central
and Northern New York); 50 East Avenue,
Suite 402, Rochester, New York 14604 (Western
New York); 26 Center Circle, Wassaic, New
York 12592 (Southern New York, including
Dutchess and Sullivan Counties); or
60 Madison Avenue, 2d floor, New York, New
York 10010.
Inmates are not, however, entitled to
counsel at the critical stage--when the Case
Review Team is conducting its review and
deciding whether the inmate should be placed in
the SOMTA proceedings in the first place.
The Rumor Mill
Prisoners’ Legal Services often receives
letters from inmates citing rumors of new laws
or prison policies which may be of benefit to
them. Often, such rumors are exaggerated, or
simply incorrect.
We recently received a number of letters
about a supposed new law which would provide
additional merit time for both determinate and
indeterminate sentences. One such letter stated
as follows: “Dear Pro Se: I would like to know
what’s going on with the new law (8 months to
a year for flats/violents) that Spitzer approved.
Also it would be retroactive. Thank you.”

Page 8

Vol. 17, No. 3; Spring 2007

Regrettably, there is no such law. A new law
was recently proposed by State Senator
Velmanette Montgomery (Democrat of
Brooklyn), which would have allowed DOCS to
award up to one third of the sentence as merit
time against both the minimum and maximum
terms of indeterminate sentences, and the terms
of determinate sentences. However, like many
such proposals, Senator Montgomery’s has not
made it out of the Committee process.
Pro Se will continue to write about
important new laws affecting inmates’ lives
when they become law.
Practice pointer: To request a copy of
Senator Montgomery’s sentencing proposal
(Senate Bill # 3578,) contact her office at
306 Legislative Office Building, Albany, New
York 12247.
Federal Cases
Supreme Court: Prisoner’s Section 1983
Complaint That Termination of Hepatitis C
Treatment Threatened His Life, States a Claim
Under the Eighth Amendment
Erickson v Pardus, __US__, 127 S. Ct 2197
(2007)
William Erickson, an inmate in Colorado,
sued Colorado prison officials, alleging that
they had wrongfully terminated his Hepatitis C
treatment, thereby putting his life in jeopardy.
Erickson alleged that after being diagnosed
with Hepatitis C, he completed classes and
otherwise complied with protocols of the
Colorado Department of Corrections to be
enrolled in the State’s Hepatitis C treatment
program. The treatment program, which takes a
year to complete, involves weekly
self-injections of medication by use of a
syringe. Shortly after he began the treatment,

prison officials were unable to account for one
of the syringes given him and, upon searching,
they found it in a trash can, modified in a
manner which suggested the use of illegal
drugs.
The officials concluded that the altered
syringe led to the “reasonable inference” that
Erickson had either used or intended to use
drugs. They charged him with various
disciplinary violations and also removed him
from the Hepatitis C treatment program. They
argued that his removal from Hepatitis C
treatment was necessary because, for “the
successful treatment of Hepatitis C, [it] is
incumbent upon the individual remaining drug
and alcohol free to give the liver a better chance
of recovery.” Under Colorado’s treatment
protocol, a person removed from the treatment
regime for having used illegal drugs must wait
up to 18 months before commencing treatment
again.
In his lawsuit, Erickson alleged that his life
was threatened by his removal from the
Hepatitis C treatment program, and that his
removal therefrom constituted deliberate
indifference to his serious medical needs, in
violation of his Eighth Amendment Rights.
The Court of Appeals dismissed his claim.
It found that his complaint did not state a
violation of the Eighth Amendment because it
failed to “allege that as a result of the
discontinuance of [his] treatment…he suffered
any harm, let alone substantial harm, [other]
than what he already faced from the Hepatitis C
itself.”
The Supreme Court reversed. The Court
noted that a violation of the Eighth Amendment
can be found when delays in medical treatment
involve “life-threatening situations and
instances in which it is apparent that delay
would exacerbate the prisoner’s medical
problems.” The Court also noted that the Eighth
Amendment “protects against future harm to an

Vol. 17, No. 3; Summer 2007

inmate.” Here, the Court continued, Erickson
had specifically stated in his complaint that the
decision to remove him from the Hepatitis C
medication was “endangering [his] life,” and
that he was “still in need of treatment for this
disease.” “This alone,” the Court held, would, if
true, be a sufficiently serious harm to state a
claim under the Eighth Amendment.
The Court reversed the Court of Appeals
and remanded the case for further proceedings.
Practice pointer: The Eighth Amendment
prohibits “cruel and unusual punishment.” The
Supreme Court held, more than thirty years
ago, that this language means, among other
things, that prison officials may not be
“deliberately indifferent” to an inmate’s
“serious” medical needs. Estelle v. Gamble,
429 U.S. 97 (1976).
The issue in this case was whether the
Plaintiff’s complaint had stated a sufficiently
“serious” medical need. The lower court
concluded that because it did not--because it
failed to specifically allege that it was the
Defendant’s removal of the Plaintiff from the
treatment program that threatened his life,
rather than the underlying fact that he had
Hepatitis C (for which the Defendant was not
responsible). In reversing, the Supreme Court
noted that Federal Rule of Civil Procedure
8(a)(2) requires that a complaint contain only
“a short and plain statement of the claim
showing that the pleader is entitled to
relief”which“‘gives the defendant fair notice of
what the…claim is and the grounds upon which
it rests.’” Moreover, the Court continued, it is
well settled that a document filed pro se is “to
be liberally construed.” “A pro se complaint,
however inartfully pleaded, must be held to less
stringent standards than formal pleadings
drafted by lawyers.”

§§§§§§§§§

Page 9

State Cases

Disciplinary Cases
Hearing Officer Erred in Relying on
Confidential Information, but Error Was
Harmless Where Other Evidence Supported
the Decision
Matter Britt v. Goord, 838 N.Y.S.2d 793
(3d Dep’t 2007)
The Petitioner was charged in two
Misbehavior Reports with fighting, disobeying
a direct order, violent conduct, creating a
disturbance, assault on an inmate, and use of a
weapon. At his Tier III hearing, he pleaded
guilty to fighting, disobeying a direct order, and
creating a disturbance, but not guilty to violent
conduct, assault on an inmate, and use of a
weapon. The Hearing Officer, after a hearing
which included confidential information,
concluded that the Petitioner was guilty of all
charges. The Petitioner challenged that
conclusion in an Article 78 proceeding.
A Hearing Officer in a prison disciplinary
hearing may rely on confidential information. In
order to do so, however, there must be some
evidence in the record that the information is
reliable and credible.
In this case, the Hearing Officer did not
personally interview the confidential informant.
The Correction Officer (“CO”) who did had
only been at the facility for about one month
and was unable to vouch for his credibility.
Under the circumstances, the court held, there
was insufficient evidence of the informant’s
reliability and credibility.
Nevertheless, the court held that the Hearing
Officer’s reliance on the informant’s testimony
was a “harmless” error: The informant provided

Page 10

no information that was not already in the
record. He merely confirmed what was already
known from other sources, i.e., the Misbehavior
Reports, the investigative memorandum, the
testimony of the Correction Officers, and the
admissions made by the Petitioner.
Consequently, the court affirmed the hearing
result.
“In Absentia” Hearing Reversed Where
Inmate Was Not Advised of Consequences of
Failure to Attend
Tafari v. Selsky, 836 N.Y.S.2d 306 (3d Dep’t
2007)
The Petitioner was charged with interfering
with an employee and refusing a direct order
after he allegedly refused to leave his cell to
attend a Tier III hearing and refused to sign the
refusal form. As a result, the hearing was held
in his absence and he was found guilty of both
charges. He then filed an Article 78 proceeding.
The court held that the hearing record failed
to establish that the Petitioner was advised of
the consequences of his failure to attend the
hearing and that, therefore, the determination
had to be reversed. The COs who attempted to
bring the Petitioner to the hearing testified that
he refused to leave his cell for the hearing and
would not sign the refusal form. However, they
did not testify that they advised him of his right
to attend the hearing and the consequences
associated with failing to appear--namely, that
the hearing would be held in his absence.
“Without evidence that petitioner was so
advised, the record does not establish that [he]
knowingly and voluntarily waived his right to
attend, and the Hearing Officer should not have
held the hearing in [his] absence.”

Vol. 17, No. 3; Spring 2007

Disciplinary Hearing Was Timely Commenced
Matter of Agosto v. Selsky, 834 N.Y.S.2d 402
(3d Dep’t 2007)
An inmate was charged with having forged
a certificate that he had completed aggression
replacement training. After being found guilty
in a Tier III hearing, he filed an Article 78
proceeding.
His principal argument in his Article 78
proceeding was that the hearing was not timely
commenced. The Misbehavior Report was
written on January 6, 2006, but the hearing did
not commence until January 13, 2006. Under
7 N.Y.C.R.R. 251-5.1(a), when an inmate is
confined to keeplock or SHU pending a
disciplinary hearing, the hearing must be
commenced within seven days of the
confinement. The inmate argued that the period
from January 6th to January 13th constituted
eight days and, therefore, his hearing should be
reversed. The court, however, held that, “in
calculating that period the day the misbehavior
report is written is excluded.” Thus, since the
period to be counted started on January 7th, not
January 6th, the hearing was timely commenced.
The court also rejected the Petitioner’s claim
that he could not be found guilty absent a
comparison between his handwriting and that of
the allegedly forged document by a handwriting
expert. “Although the documents were not
compared by a handwriting expert,” the court
held, “the Hearing Officer’s own analysis and
his finding of sufficient similarities between the
forged documents and petitioner’s handwriting
samples are enough to sustain the
determination.”
Practice pointer: The court’s decision relied
on General Construction Law § 20, which
provides: “A number of days specified as a
period from a certain day within which or after
or before which an act is authorized or required
to be done means such number of calendar days

Vol. 17, No. 3; Summer 2007

exclusive of the calendar day from which the
reckoning is made.”
Note that 7 N.Y.C.R.R. 251-5.1(a) provides
that a hearing must commence within seven
days of an inmate’s initial confinement in SHU
or keeplock--not, as the court in this case
perhaps inadvertently suggested, within seven
days of the writing of the Misbeh
avior Report.
Inmate Found Guilty of Possession of Escape
Materials, Not Guilty of Correspondence
Violations
Matter of Davis v. Goord, 833 N.Y.S.2d 802
(4th Dep’t 2007)
The Petitioner was charged with violating
inmate Rules 108.13 [possession of any article
or paraphernalia providing reasonable grounds
to believe that escape is planned] and 180.11
[compliance with correspondence procedures
pursuant to 7 NYCRR parts 720, 721]. The
court determined that there was substantial
evidence to support a finding that he possessed
escape materials, including a magazine article
concerning prison escape. It also found that
there was substantial evidence that he had
ordered equipment used to pick locks and
bypass security systems to be delivered to his
lawyer’s office.
The court found that the determination that
the Petitioner had violated DOCS’
correspondence rules was not supported by the
evidence. Those charges were based on the
Petitioner’s receipt of a letter from someone
named “Sparky,” whom DOCS’ officials
believed to be a former inmate. DOCS’ rules
prohibit writing to an inmate or someone on
parole or probation without authorization from
the facility superintendent. See 7 N.Y.C.R.R.
720.3(b)(2).
The mere fact that the Petitioner had
received a letter from “Sparky,” however, did

Page 11

not constitute evidence that the Petitioner had
violated the correspondence rule, the court held.
In fact, the hearing record contained no
evidence that the Petitioner either wrote to
“Sparky” or even that “Sparky” had been an
inmate.
Similarly, the court found, there was no
evidence that the Petitioner had violated DOCS’
rules against “kiting” mail, i.e., sent “written
material in outgoing mail not specifically
intended for the addressee identified on the
exterior of the envelope.” See 7 N.Y.C.R.R.
720.3(p). The Misbehavior Report indicated
only that he received mail, not sent it.
In light of its findings, the court ordered
DOCS to expunge the references to the alleged
correspondence rule violations from the
Petitioner’s records. Since, by the time of the
ruling, the Petitioner had already served his
SHU sentence, there was nothing further the
court could do for him.
Inmate Found Guilty of Making Threats, Even
Though Threats Not Made to Victim
Griswold v. Goord, 835 N.Y.S.2d 460 (3d Dep’t
2007)
The Petitioner was scheduled for conditional
release after serving 16 years of a 25-year
sentence for attempted murder and assault
when, in a recorded telephone conversation with
his sister, he became angry and, referring to a
third person, said, “I'll punch his lights out.” As
a result, he was charged with making threats
and failing to comply with telephone guidelines.
Following a Tier III hearing, he was found
guilty as charged and received a penalty that
included 18 months loss of good time, which
had the effect of postponing his release date.
After an unsuccessful administrative appeal, he
commenced an Article 78 proceeding
challenging the disciplinary determination.

Page 12

In his Article 78, he argued that his
statement was an offhand remark communicated
only to his sister, rather than a serious threat of
violence, and was insufficient to support the
finding that he had made a threat because it was
never communicated to the person against
whom it was directed.
The court rejected this argument. It noted
that the relevant disciplinary rule--7 N.Y.C.R.R.
270.2(B)(3)(i)--prohibits “any threat” made
“under any circumstances.” It was therefore of
“no consequence,” according to the court, that
the threat was never communicated to its
intended target. The Petitioner’s claim that the
threat was not real, the court held, presented a
credibility issue for the Hearing Officer to
resolve. Accordingly, the court found, the
Misbehavior Report, together with the
Petitioner’s admission that he made the
statement, provided substantial evidence for the
determination of guilt.

Vol. 17, No. 3; Spring 2007

inmate strike earlier in the year. Following a
hearing, it was determined that the Petitioner's
continued presence in the general population
would pose a threat to the safety and security of
the prison facility, a decision which was upheld
on administrative appeal. As a result, the
Petitioner filed an Article 78 proceeding.
In his proceeding, he contended that the
recommendation was made in retaliation for
grievances he had filed, that the Hearing Officer
was biased, and that he could not prepare a
defense because the recommendation was
deficient in its details.
The court found, however, that by refusing
to attend his hearing, he had forfeited the right
to raise these issues. According to the court, he
was given the opportunity to present his views
and respond to the segregation recommendation,
“yet chose to forgo that opportunity.” Moreover,
the court found, the recommendation, together
with the testimony and evidence at the hearing,
provided sufficient evidence to support the
conclusion that he had negatively influenced
other Muslim inmates such that his removal
from the general population was in the best
interest of the facility’s safety and security.
Hearing Officer’s Refusal to Provide Inmate
With Correction Officer’s Injury Report
Results in Reversal of Disciplinary Hearing

Inmate Forfeits Right to Challenge
Administrative Segregation Hearing

Matter of Davis v. LeClaire, Sup Ct. Albany Co,
March 28, 2007 (McNamara, J.)

Abdur-Raheem v. Burgee, 835 N.Y.S.2d 457
(3d Dep’t 2007)

The Petitioner was found guilty in a Tier III
disciplinary proceeding of violent conduct,
creating a disturbance, assault on staff, weapons
possession ,and refusing a direct order.
According to the Misbehavior Report, a
Correction Officer (“CO”) observed the
Petitioner creating a disturbance in the mess hall
at Elmira and placed him on the wall for a pat
frisk. When the CO attempted to retrieve an

The Petitioner, a Muslim, was placed in
Administrative Segregation (“Ad. Seg.”) based
on an Ad. Seg. recommendation which stated
that he was suspected of influencing other
Muslim inmates to stay in their cells during
Ramadan and of being the catalyst behind an

Vol. 17, No. 3; Summer 2007

object that he said he felt in the Petitioner’s
pocket, he allegedly came off the wall and
struck the CO in the face with his elbow. The
CO then grabbed the Petitioner from behind and
forced him face first into the wall. When the
Petitioner attempted to break free, he was driven
face first to the floor. According to the Report,
the Petitioner continued to struggle while on the
ground, and attempted to strike the CO again.
The CO then struck the Petitioner with a closed
fist in his forehead.
The Petitioner denied the charges. He stated
that he and the CO had exchanged words in the
mess hall. Shortly thereafter, a CO told the
Petitioner to follow him into the hallway.
According to the Petitioner, he was told to put
his hands on the wall and was then punched in
the head, thrown to the ground and punched and
kicked.
It was undisputed that as a result of the
incident, the Petitioner suffered a fracture of the
orbital bone around his eye, a broken nose, a
fractured thumb, and facial lacerations which
required more than thirty stitches to close.
At his hearing, the Petitioner requested that
the Hearing Officer produce the Injury Report
of the Correction Officer who wrote the
Misbehavior Report as well as photographs of
the Officer’s injuries, both of which are
generally generated as part of the Use of Force
Report. The Hearing Officer denied this request,
stating that revealing the CO’s injury reports
would constitute an unauthorized invasion of
the Officer’s privacy.
After being found guilty, and having his
administrative appeal affirmed, the inmate filed
an Article 78 proceeding.
The court noted that appellate courts have
held that medical records and photographs of
the Correction Officer involved in an altercation
with inmates are relevant to disciplinary charges
that arise from the incident. See, e.g., Matter of
Cody v. Goord, 794 N.Y.S.2d 149 (3d Dep’t
2005). It was therefore an error for the Hearing

Page 13

Officer to deny the Petitioner’s request to
review them.
Moreover, the court found, the error
required reversal of the hearing. The
Petitioner’s defense to the charges was that he
was the victim of an unprovoked attack by the
Correction Officers. His request for the CO’s
Injury Report was intended to show that the
CO’s injuries did not support the description of
the incident contained in the Misbehavior
Report. In addition, the court pointed out, in
fact, that the CO’s Injury Report made no
reference of any injury to his face--which was
arguably contrary to the CO’s assertion that the
Petitioner initiated the incident by striking him
in the face with his elbow.
“Considering the importance of this
evidence,” the court wrote, “the Hearing
Officer’s refusal to allow the Petitioner to
review it cannot be characterized as harmless.”
The Petitioner in this case was represented
by Prisoners’ Legal Services of New York.
Parole Cases
Court Declines to Reverse Parole Denial of
Model Inmate
Cruz v. New York State Division of Parole, 833
N.Y.S.2d 311 (3d Dep’t 2007)
The Petitioner, denied parole, appealed the
denial in an Article 78 proceeding.
The Petitioner had been convicted of
manslaughter and weapon’s possession arising
out of an altercation between two groups of men
in 1991. The Petitioner, who had been drinking
and smoking marijuana, had retrieved his gun
from the trunk of a car and fired a shot but was
unaware that he had hit anyone. When he found
out the next day that an individual had been
shot, he turned himself in to the police. He was
17 years old at the time and had no prior
criminal record.

Page 14

The record before the Parole Board revealed
that Petitioner has always admitted his guilt and
expressed remorse for his conduct. In his 15
years of incarceration, he had only one
disciplinary offense. He has participated in
numerous available programs, including alcohol
and substance abuse treatment and the
alternatives to violence project, and he had
earned 45 college credits. The record also
showed that he had offers of employment from
a New York City police officer and several
relatives. Finally, at his hearing, the Petitioner
detailed the support that he receives from his
wife who visits him weekly, and he continued to
express his sorrow for the taking of another
person's life and the suffering that he caused.
Although the Board noted his positive
institutional achievements and his exemplary
conduct in prison, it concluded that “[his]
actions that led to the death of a male victim
leads this panel to determine that if released at
this time, there is a reasonable probability that
your ( sic ) would not live and remain at liberty
without violating the law.” Accordingly, the
Board denied parole and ordered the Petitioner
held for an additional 24 months.
The court--with apparent reluctance--upheld
the Board’s decision, writing as follows:
We find petitioner’s academic and
institutional achievements exemplary. It
would seem that he is a prime candidate
for parole release. Yet, given the
standard of review available to us, we
cannot find that the Board's decision
exhibits “‘irrationality bordering on
impropriety’” Clearly, the Board
considered the appropriate statutory
factors set forth in Executive Law
§ 259-i, spanning from the seriousness
of petitioner’s crime to his lack of

Vol. 17, No. 3; Spring 2007

criminal history, nearly spotless prison
disciplinary record, positive program
accomplishments and post-release plans.
Yet, with the Board not required to give
equal weight to those factors, and
instead placing more emphasis on the
serious nature of petitioner's crime, we
are constrained to affirm.
Court Reverses Parole Denial Where Denial
Based Solely on Seriousness of the Crime
Matter of Almonor v. New York State Board of
Parole, (Sup. Ct., NY Co.) (March 29, 2007)
(York, J.)
On December 1, 1991, the Petitioner, then
20 years old, was at a nightclub with some
friends when a fight broke out. He and other
friends were drawn into the fight, the details of
which are unclear. According to the Petitioner,
he was slashed in the face with a knife and one
of his friends gave him a gun with which to
defend himself. Ultimately, the Petitioner fired
the gun three times, injuring one woman and
killing one man. He was sentenced to 12½ to
25 years for criminal use of a firearm in the first
degree, and to 8a to 25 years for manslaughter
in the first degree.
During the Petitioner’s years in prison, he
successfully completed various programs to
deal with his aggression, received his GED, and
completed training programs that enable him to
work as an electrician’s assistant and a custodial
maintenance worker. In addition, he trained in
legal research, received an associate's degree in
paralegal studies, and worked as a paralegal in
the prison library. The Law Library Supervisor
gave him consistently superior evaluations for
his conduct. His record also detailed other
vocational and rehabilitative achievements,

Vol. 17, No. 3; Summer 2007

including work with the hearing impaired and
work as an HIV/AIDS Peer Educator.
In 2004, he married his high school
sweetheart, a former teacher who now works as
a Guidance Counselor with the New York City
Department of Education. She wrote a letter to
the Parole Board on behalf of her husband in
connection with his 2006 application for parole.
In addition, numerous relatives and friends, as
well as the Petitioner’s local assemblyman,
wrote letters. The Petitioner also submitted
evidence to the Board showing that he was
actively seeking both employment and entrance
into a four-year college in the event of his
release on parole.
At his 2006 parole hearing, the Petitioner
expressed his remorse for the crime and stated
that he was older and wiser and he would not
repeat his earlier mistakes. One of the
Commissioners commented that he found it
“rather interesting” that his manslaughter charge
received a smaller sentence than his weapons
charge.
The Commissioners then denied parole,
writing:
Parole is again denied due to the serious
nature and violent circumstances of the
instant offenses, criminal use of a
firearm first and manslaughter one,
wherein you shot and killed one man
and shot and injured a female victim.
The Petitioner challenged the denial of
parole in an Article 78 proceeding as arbitrary
and capricious. The court reversed, noting that
although the Parole Board has great discretion,
its discretion is not “unfettered.”
The Board cannot base its determination
solely on the serious nature of the crime.
Instead, although it need not discuss
every statutory factor, it must consider
these factors “as to every person who

Page 15

comes before it.” This includes
consideration of the inmate’s
institutional record including, as is
relevant here, the inmate’s vocational
education, his training and work
assignments, therapy, and his release
plans. Where the record convincingly
demonstrates that the Parole Board did
in fact fail to consider the proper
standards, the courts must intervene.
In this case, the court found, the Board
relied exclusively on the severity of the offense
in its decision to deny parole. Its decision did
not mention any factor other than the
seriousness of the crime as its basis. Thus, its
action “not only contravene[d] the discretionary
scheme mandated by statute, but also effectively
constitute[d] an unauthorized re-sentencing of
the defendant.” In reaching this conclusion, the
court also noted the short length of the parole
hearing, the Commissioners’ unwillingness to
discuss the Petitioner’s letters in support of his
application, and Commissioner Rodriguez’s
comment suggesting that he thought the
Petitioner's sentence for manslaughter was too
short.
The Court ordered that a de novo parole
hearing be held.
Practice pointer: The similarities between
this case and the Cruz case above--and their
opposite results--beg further explanation. Both
cases involve inmates convicted of
manslaughter at a young age in similar
circumstances. Both inmates apparently have
model prison records, and in both, the Board
denied parole based entirely on the
“seriousness of the underlying offense.” Yet, in
this case, the court felt it appropriate to reverse
the Board, while in Cruz, it declined. Why?
The only rationale that the editors of Pro Se
can suggest is that, in this case, the court found
that the Board failed to consider any factor
other than the seriousness of the crime, while in

Page 16

the Cruz case, the court found that the Board
did consider factors other than the seriousness
of the crime--notably the inmate’s “nearly
spotless prison disciplinary record, positive
program accomplishments and post-release
plans.” Apparently, this distinction was
sufficient to merit upholding the Board in the
Cruz case, while reversing it in the instant case.
One can only wonder, however, if this is a
distinction without a difference. In Cruz, all the
factors other than the seriousness of the offense
weighed in favor of granting parole. If the
Board considered those factors, it must have
rejected them out of hand. A cynic could argue,
based on the results of these decisions (and
others like them), that it makes little difference
whether or not the Board considers additional
factors, since it will not be persuaded by them.
Pro Se litigants should also note that, even
in this case, it is not clear that the inmate won
much. A court’s authority upon reversing a
parole hearing is limited to ordering that a new
parole hearing be held. The court does not have
the authority to order the inmate released. See
Quartararo v. New York State Div. of Parole,
637 N.Y.S.2d 721 (1st Dep’t 1996). DOCS’
inmate locator reveals that the Petitioner in this
case remains incarcerated and that his next
parole board is not scheduled until April 2008.
That suggests that the Board has either
appealed this case, and obtained a stay of the
decision, or that it held the re-hearing required
by the court and denied the Petitioner parole
once again. In either event, it is evidence that
even a successful challenge to a parole denial
may, in the end, be only a “pyrrhic” victory.
Court of Claims Cases
Inmate, Burned During Physical Therapy,
Wins Summary Judgement on DOCS’
Negligence

Vol. 17, No. 3; Spring 2007

Banks v. State of New York, (Court of Claims,
April 11, 2007) (Mognano, J.) (Unreported
Decision)
The Claimant, an inmate, suffered burns on
his shoulder during a physical therapy session at
Shawangunk Correctional Facility. He sued the
State in the Court of Claims and, after his claim
was filed, he moved for “summary judgment.”
A motion for summary judgment is one in
which one party argues that there is enough
evidence available for the court to decide the
matter without a trial. To prevail, the party
making the motion “must make a prima facie
showing of entitlement to judgment as a matter
of law, tendering sufficient evidence to
demonstrate the absence of any material issues
of fact.”
Making a prima facie means submitting
evidence that, unless rebutted, would be
sufficient to prove the case.
If the party making the summary judgment
motion establishes a prima facie case, “the
burden shifts to the opposing party to produce
evidence that some of the facts on which the
prima facie case depends are in dispute, thus
requiring a trial.”
Here, the Claimant submitted an affidavit in
support of his summary judgment motion. In his
affidavit, he stated that part of his physical
therapy treatment involved application of a hot
plate wrapped in a towel to his left shoulder. He
complained that the device was too hot but his
complaints were ignored, causing burns and
permanent scarring. He also submitted, with his
motion, an “Inmate Injury Report,” which
indicated that he had presented himself at the
Wallkill Correctional Facility health facility on
September 2, 2005, stating that while receiving
physical therapy the day before, a heating pad
caused burns on his shoulder. In the Inmate
Injury Report, the nurse wrote, “[b]urns noted

Vol. 17, No. 3; Summer 2007

on Lt shoulder (3) blisters intact,” applied
Bacitracin and a dressing, and admitted the
Claimant to the infirmary to be seen by a doctor.
In an Inter-Departmental Memorandum
addressed to “Dep. Hansen,” she noted that the
Claimant told her he had “complained to PT
staff that the moist heat was too hot and another
towel was placed between the heat source and
his skin.”
The court found that the evidence submitted
by the Plaintiff established the Plaintiff’s prima
facie case of negligence under the doctrine of
res ipsa loquitur.
Res ipsa loquitur is a Latin term meaning
“the things speaks for itself.” It is a principle of
evidence which allows a court to conclude that
the mere fact that an event happened is proof of
the defendant’s negligence, because it could not
have happened absent the defendant’s
negligence. To establish negligence by virtue of
res ipsa loquitur, a claimant must show that:
(1) the event was of a kind that does not
ordinarily occur in the absence of negligence;
(2) the event was caused by an “agency or
instrumentality” within the defendant’s
exclusive control; and, (3) the event was not due
to any voluntary action or contribution on the
part of the claimant.
Here, the court found, the fact that the
Claimant was burned during his physical
therapy session satisfied the standard for a
showing of negligence by virtue of res ipsa
loquitur. The facts established by the
Claimant’s evidence, if true, made “the
inference of negligence…inescapable.” The
burden, therefore, shifted to the State to
demonstrate that there were disputed factual
issues which warranted a trial.
In reply, the State argued that: the therapist
had acted properly in placing the hot plate on
the Claimant’s shoulder; there was no evidence
that the therapist had acted negligently or in
“disregard of community standards”; there was
no evidence that the hot plate was

Page 17

malfunctioning or the Defendant had notice that
it would cause the Claimant's skin to burn; and
there was no proof that the Claimant was in
need of special precaution due to age or
sensitivity. The court noted, however, that the
State presented no evidence in support of its
arguments. The State’s arguments were “[m]ere
conclusions, expressions of hope or
unsubstantiated allegations.” As such, they were
insufficient to meet the State’s burden of proof
on a summary judgment motion. “Had [the
State’s] allegations been supported by evidence
of improper physical therapy practice, a
malfunction or lack thereof of the heat source or
claimant’s alleged particular sensitivity to heat,
or any indication that burns to the skin such as
claimant received are a normal and accepted
risk of physical therapy involving heat, [the
State] may well have been able to demonstrate
issues of fact” sufficient to warrant a trial.
However, “[s]ince no such evidence was
presented, and counsel’s statements to the
contrary are not an adequate substitute and the
fact that a physical therapy treatment
uncontrovertedly resulted in second degree
burns implicates negligence within the
comprehension of a layperson.”
Thus, the court granted summary judgment
to the Plaintiff and scheduled a trial for
damages.
Inmate Awarded $8,000 for DOCS’ Negligence
in Allowing Other Inmates to Assault Him in
SHU
Martin v. State of New York, 833 N.Y.S.2d 706
(3d Dep’t 2007)
In April 1999, while serving a SHU
sentence, the Claimant was attacked and
assaulted by two inmates wielding shanks as he
exercised in the “cage.” The assault lasted
approximately three minutes, during which the
Claimant defended himself, rendering one of his

Page 18

assailants semiconscious. As a result of the
incident, the Claimant required a total of nine
stitches, one to his scalp, three to his left thumb,
four to his chest, and one on the right side of his
neck. Approximately six weeks later, in
June 1999, he sought mental health treatment,
contending that he could not sleep due to
nightmares and that he was suffering from
extreme headaches, and subsequently was
diagnosed with Posttraumatic Stress Disorder
(“PTSD”) and treated with various medications.
In the interim, the Claimant commenced an
action against the State in the Court of Claims,
alleging that on the day he was assaulted,
Correction Officers negligently failed to screen
inmates before allowing them to enter the
exercise cage. After a trial, the court found for
the inmate and awarded him $15,000 in
compensation for his physical injuries, but
rejected his claim that he suffers from PTSD
and, hence, denied him any compensation for
his alleged psychological injuries.
Both the Claimant and the State appealed.
The Claimant argued that the award should
include damages for PTSD, while the State
argued that the $15,000.00 awarded for the
Claimant’s physical injuries was too high.
The appeals court found that the lower court
had acted appropriately in rejecting the
Claimant’s PTSD claim. At trial, the court had
been confronted with competing expert opinions
as to whether the Claimant suffered from PTSD
and it elected to credit the testimony of the
State’s expert over that of the Claimant. In
addition, the court noted that the Claimant had
sustained a seven-inch laceration to his chest in
a bar fight in 1970, was incarcerated in 1979 for
armed robbery, and was found guilty of fighting
while incarcerated at least three times, including
an incident during which the Claimant
apparently threw hot oil at a fellow inmate.
Thus, the court wrote, the incident was “not
claimant’s first exposure to violence.” The court
also considered the testimony of the Correction

Vol. 17, No. 3; Spring 2007

Officer who escorted the Claimant to the
infirmary following the attack, who stated that
the Claimant expressed “exuberance that he had
successfully defended himself from two
attackers, and that he had, in fact, rendered one
semiconscious during this incident.” Finally, the
court took into consideration testimony to the
effect that some of the symptoms the Claimant
associated with PTSD, including his allegedly
persistent headaches, could be the product of
other medical conditions from which the
Claimant suffers, including hypertension and
Grave's disease. Under these circumstances, the
appeals court held, “the Court of Claims quite
properly rejected claimant’s assertion of
PTSD.”
The court also agreed with the State’s
contention that the $15,000 awarded by the
Court of Claims for the Claimant’s physical
injuries was excessive under the circumstances.
On reviewing the record as a whole, the court
reduced the Claimant’s award to $8,000.00-although one judge dissented from that portion
of holding, concluding that there was nothing in
the record to justify reducing the award from
$15,000.00.
Other Cases
Inmate Denied Visitation With Children
Matter of Conklin v. Hernandez, 837 N.Y.S.2d
419 (3d Dep’t 2007)
The Petitioner, an inmate, petitioned for
visitation with his two children, ages three and
five, whom he has not seen since he was
incarcerated in 2004. After a hearing, the
Family Court denied his petition, granting him
only the right to communicate with his children
by mail and receive updates on their condition
six times per year. The Petitioner appealed.
The Appellate Division noted that
“visitation [with] a noncustodial parent is

Vol. 17, No. 3; Summer 2007

presumed to be in the child’s best interest and
should be denied only in exceptional situations,
such as where substantial [proof] reveals that
visitation would be detrimental to the welfare of
the child.” Further, the court noted, “the
incarceration of a noncustodial parent shall not,
by itself, preclude visitation with his or her
child.” On the other hand, the court noted,
“denial of an application for visitation is proper
where evidence demonstrates that visitation
would not be in the child’s best interest” and
“the propriety of visitation is generally left to
the sound discretion of Family Court whose
findings are accorded deference by [the appeals
court] and will remain undisturbed unless
lacking a sound basis in the record.”
In this case, the court found that the Family
Court's determination that, under the
circumstances, it would not be in the children’s
best interests to have visitation with their
incarcerated father was supported by the record,
notwithstanding what the court characterized as
the Petitioner’s “earnest efforts to secure
in-person visitation with his children.”
The court pointed out that the Petitioner had
minimal financial resources and no family or
friends to assist in providing transportation or
supervision of the children. The children’s
mother was a single mother with four children
who worked full time earning minimal wages.
She did not have either a car or the financial
resources or family or friends to help with the
five- to eight-hour round trip from the City of
Binghamton, where she lived, to Wyoming
County, where the Petitioner was incarcerated.
Although the Petitioner offered to use his
inmate salary to pay for their bus transportation,
the court stated, he offered no proposal for how
the children’s mother would care for her other
two children or pay other travel-related
expenses, and he was unable to suggest anyone

Page 19

suitable, other than the mother, who could
accompany and supervise his children.
At Family Court, the children’s mother had
testified that she did not oppose visitation with
the father, but that she did not want to have any
contact with him herself because of their
volatile relationship. She conceded that the
Petitioner had bonded with their son, who was
2½ years old when the Petitioner had last lived
with them, prior to his incarceration, but she
stated that their daughter, who was only a
four-month-old infant at that time, did not know
him and she was uncomfortable having her visit
with someone who was, essentially, a stranger.
Under all of the circumstances, the court
held, including the young ages of the children,
the difficult logistics and the expense of travel,
the mother’s opposition to having contact with
the Petitioner, the lack of a pre-existing
relationship between the father and the
daughter, and the parties’ lack of resources or
appropriate third-party assistance, the Family
Court’s denial of visitation “had a substantial
basis in the record” and should, therefore, be
affirmed. The appeals court noted that if the
Petitioner were to be transferred to a facility
closer to his children or if the financial situation
of the parties substantially improved or a
suitable adult were to be identified by the
parties who could provide the necessary
supervision and transportation, the Petitioner
could renew his petition for a modification of
visitation at a later date.
Inmate Denied Re-Sentencing Under Drug
Law Reform Act
People v. Vega, 836 N.Y.S.2d 685 (2d Dep’t
2007)
The Drug Law Reform Act of 2004
established a new sentencing structure for drug

Page 20

offenses in an effort to alleviate the strict laws
enacted in 1973, commonly known as the
Rockefeller Drug Laws. Although the new
sentences apply only to persons convicted after
the Reform Act was passed, the Act also
allowed inmates convicted of A-I and A-II drug
offenses prior to the Act’s passage to apply to
be re-sentenced. The Act, however, does not
require a sentencing court to grant resentencing. Instead, under the statute, the court
should:
consider any facts or circumstances
relevant to the imposition of a new
sentence which are submitted by such
person or the people and may, in
addition, consider the institutional
record of confinement of such person…
Upon its review of the submissions and
the findings of fact made in connection
with the application, the court shall,
unless substantial justice dictates that
the application should be denied, in
which event the court shall issue an
order denying the application, specify
and inform such person of the term of a
determinate sentence of imprisonment it
would impose upon such conviction.
In this case, the Defendant was a second
felony offender with a prior criminal history
dating back to 1988, including convictions of
other controlled substance offenses, and he was
subsequently convicted of murder in the second
degree. Moreover, his prison disciplinary record
was poor. Under the circumstances, the court
held, justice dictated that his application for a
new sentence be denied.
Inmate in IPC Denied Permission to
Participate in Family Reunion Program
Matter of Cabassa v. Goord, 836 N.Y.S.2d 351
(3d Dep’t 2007)

Vol. 17, No. 3; Spring 2007

The Petitioner was placed in Involuntary
Protective Custody (“IPC”) at Shawangunk
Correctional Facility after it was revealed that
his safety was in jeopardy. Because of his IPC
status, his application for participation in the
Family Reunion program was subject to
“special review.” See 7 N.Y.C.R.R. 220.2(c).
When the special review was completed, his
Family Reunion application was denied and the
determination was upheld on administrative
appeal. The Petitioner then commenced an
Article 78 proceeding challenging the denial.
The court noted that “it is well settled that
[a] decision to deny an inmate participation in
the family reunion program is ‘heavily
discretionary’ and will not be disturbed if
supported by a rational basis.” Here, the court
found, DOCS properly considered the various
factors outlined in 7 N.Y.C.R.R. 220.2 during
the special review process, but denied the
Petitioner’s application primarily on the basis of
his IPC status and the security concern
presented thereby. Because this constituted a
rational reason for the denial of the Petitioner's
application, the court dismissed the Petitioner’s
Article 78 proceeding.
Practice pointer: 7 N.Y.C.R.R. 220.2(c)
provides for “special review” of an inmate who
is otherwise eligible to participate in the Family
Reunion program if he or she: (i) has been
designated a central monitoring case; (ii) has
any outstanding warrants or show cause order
(e.g., U.S. Immigration Service); (iii) has been
convicted of heinous or unusual crimes or if it
appears that the inmate is a sex offender; (iv) is
a returned parole violator; (v) is in protective
custody or administrative segregation; (vi) is in
a special program such as Merle Cooper or
APPU or IPC or assigned to a closed mental
hygiene unit. The regulation does not specify
what factors should be considered in the
“special review” process, so it is unclear as to
what factors--other than the mere fact that the

Vol. 17, No. 3; Summer 2007

inmate was in IPC--were considered in this
case.
Inmate Denied Access to Pre-Sentence Report
People v. Muniz, (Sup Ct., Kings Co.) (May 7,
2007) (Rivera, J.) (Unreported Decision)
Inmates often want to see a copy of their
Pre-sentence Report. Often, they wish to correct
what they believe to be incorrect information in
the Pre-sentence Report. On other occasions,
they may wish to use the Pre-sentence Report to
argue in favor of admission to certain prison
programs or to present to the Parole Board for
consideration for release on parole.
Under Criminal Procedure Law § 390.50, a
sentencing court must provide the parties in a
criminal case with access to the Pre-sentence
Report at least one day prior to sentencing.
They must also provide copies to various public
agencies, including DOCS. Beyond that,
however, the law states that Pre-sentence
Reports are “confidential and may not be made
available to any person except…upon specific
authorization of the [sentencing] court.” C.P.L.
§ 390.50(1).
State courts are divided over whether a
sentencing court may grant an inmate access to
his Pre-sentence Report for any purposes other
than presenting arguments about his sentence.
In Salamone v. Monroe County Dept. of
Probation, 524 N.Y.S.2d 943 (4th Dep’t 1988),
the Fourth Department of the Appellate
Division held that a Pre-sentence Report can
never be released for any purpose other than
that for which it was prepared (i.e., to help the
judge establish sentence).
However, in Blanche v. People, 598
N.Y.S.2d 102 (3d Dep’t 1993), the Third
Department held that the sentencing court may
disclose the Pre-sentence Report--if the party
requesting the Report can show some

Page 21

“important need [for it] that cannot be filled by
other means.”
Thus, if you were convicted in one of the
Counties located in the Third Department, you
can obtain a copy of your Pre-sentence Report
if you can show an “important need [for it] that
cannot be filled by other means.”
What constitutes such a need?
Several courts have addressed that question.
In Shader v. People, 650 N.Y.S.2d 350
(3d Dep’t 1996), the Petitioner made a motion
for disclosure of his Pre-sentence Report in
connection with his pending parole appeal.
There, the appellate court held that the
Petitioner had made an adequate showing of the
need for the report “inasmuch as it is one of the
factors required to be considered by the Board
of Parole upon application for release.”
However, in Kilgore v. People, 710
N.Y.S.2d 690 (3d Dep’t 2000), the court held
that the Petitioner’s assertion that he needed his
Pre-sentence Report in order to help him
prepare for his parole board was not a sufficient
ground for release of the Report. “Petitioner’s
bare assertion,” wrote the court, without more,
that he required the report in order to properly
prepare for an appearance before the Board of
Parole “is insufficient to constitute a showing
[of need for the report].” At the very least, the
“petitioner must demonstrate that he has been
given notice of an impending hearing before the
Board of Parole.”
Also, in Campney v. People, 718 N.Y.S.2d
898 (3d Dep’t 2001), where the inmate claimed
he needed his Pre-sentence Report in order to
“apply for certain prison programs and future
parole release consideration,” the court found
his claim too “speculative and insufficient” to
support his application.
Here, the court held, the Petitioner made
“only a bare assertion that he requires his
Pre-sentence Report for an upcoming parole
hearing.” He did not inform the court of the date

Page 22

Vol. 17, No. 3; Spring 2007

of the hearing or why he needed the Report to
prepare. Under these circumstances, the court
found, it did not have enough information to
determine whether the Petitioner was entitled to
his Report. “Petitioner’s bare assertion that he
needs it for an upcoming parole hearing is
insufficient,” held the court.
Pro Se Practice
Inmate’s Article 78 Proceeding Dismissed as
Untimely
Matter of Watson v. Goord, 832 N.Y.S.2d 464
(3d Dep’t 2007)
The Petitioner filed a grievance in the winter
of 2003-2004, alleging that he was not provided
with adequate winter clothing. He filed another
in December 2003 challenging the institutional
procedure for reviewing his complaint about
medical care. His grievances were
administratively denied in September 2003 and
January 2004, respectively. In January 2005, he
commenced an Article 78 proceeding.
Pursuant to Civil Practice Law and Rules
§ 217 (1), Article 78 proceedings are governed
by a four-month statute of limitations.
Section 217(1) states: “a proceeding against a
body or officer [an Article 78 proceeding] must
be commenced within four months after the
determination to be reviewed becomes final and
binding upon the petitioner or the person whom
he represents in law or in fact, or after the
respondent’s refusal, upon the demand of the
petitioner or the person whom he represents, to
perform its duty…”
An administrative determination becomes
“final and binding” when it is received by the
person who wants to bring the Article 78
proceeding.
Here, because the Petitioner did not start his
Article 78 proceeding until a year or more after
his grievances were decided, the court
dismissed his claim.

Bringing an Excessive Force Lawsuit in the
Court of Claims
New York State can be held liable in the
Court of Claims when state employees,
including Correction Officers, cause injury by
using excessive force. However, succeeding in
an excessive force claim is very difficult. The
law allows officers to use reasonable force to
maintain order and protect themselves, and
there are significant obstacles to proving that
the amount of force used was excessive. In
excessive force cases, the Court of Claims judge
is often forced to choose between the inmate’s
story of what happened, or the Correction
Officer’s, with little additional evidence. In the
vast majority of cases, the court credits the
testimony of the officer. Moreover, even in the
rare instances in which inmates have
successfully proved excessive force, the damage
awards are usually modest.
Nevertheless, filing an excessive force claim
in the Court of Claims may, for many, be an
attractive alternative to filing in federal court.
The process is generally simpler and more
straightforward, many of the procedural hurdles
that prevent federal courts from addressing the
merits of inmate cases do not exist in the Court
of Claims, and the threshold of what you must
prove to establish excessive force is slightly
lower in the Court of Claims than it is in federal
court.

Vol. 17, No. 3; Summer 2007

This article is intended to be a brief guide to
filing an excessive force case in the Court of
Claims.
Deadline for Filing an Excessive Force Claim:

i Under the Court of Claims statute, if you
believe a Correction Officer used excessive
force against you, you must either file your
claim in the court or serve the Attorney
General with a notice that you intend to file
a claim, within 90 days of the incident. If
you give notice within this 90-day period,
you have one year from the date of the
incident to file the claim in court. If you fail
to either give notice of your claim within 90
days, or fail to file your claim within one
year, the Court of Claims cannot hear your
case. See Court of Claims Act § 10(3-b).
i There is one exception: If you miss the
90-day deadline for filing a claim or giving
notice of your claim, you can file a motion
for permission to file a late claim. (For more
information on filing a late claim, request
PLS’s “Late Claims” memo.)
i However, if more than one year has passed,
all claims, including late claims, are barred
by New York’s statute of limitations.
Excessive force claims are considered to be
“intentional tort” claims, which are
barred after one year has passed
from the date of the incident.
What Constitutes Excessive Force Under
New York law?
New York corrections law allows officers to
use some force against inmates for certain
purposes. Correction Law § 137(5) states:

Page 23

[N]o officer…shall inflict any blows
whatever upon any inmate, unless in self
defense, or to suppress a revolt or
insurrection. When any inmate, or group
of inmates, shall offer violence to any
person, or do or attempt to do any injury
to property, or attempt to escape, or
resist or disobey any lawful direction,
the officers and employees shall use all
suitable means to defend themselves, to
maintain order, to enforce observation
of discipline, to secure the persons of
the offenders and to prevent any such
attempt or escape.
New York regulations require that
Correction Officers use only “such degree of
force as is reasonably required” and that they
not “lay hands on or strike an inmate”: unless
they “reasonably believe that the physical force
to be used is reasonably necessary for
self-defense; to prevent injury to person or
property; to enforce compliance with a lawful
direction; to quell a disturbance; or to prevent
an escape.” 7 N.Y.C.R.R. § 251-1.2(b).
These rules do not specify precisely what
kinds of force or level of force is excessive--it
depends on the particular circumstances of the
incident. When an inmate brings an excessive
force claim, the Court of Claims must determine
whether the degree of force was “reasonably
required” or “reasonably necessary,” focusing
on “the circumstances confronting the officers
or guards.”
In past cases, the Court has been very
willing to defer to the judgment and credibility
of Correction Officers. The judges often note in
their opinions that Correction Officers “are
charged with the unenviable task of maintaining
order and discipline in correctional facilities
under stressful circumstances.” Therefore,

Page 24

judges are very reluctant to conclude that a
given amount of force was unreasonable.
Proving Excessive Force:
In order to determine whether Correction
Officers used excessive force, the Court of
Claims examines the specific circumstances of
the incident and evaluates the credibility of
witnesses. In excessive force cases, the
credibility of the witnesses is crucially
important. It is very often the decisive factor.
In nearly all excessive force cases where an
inmate can show an injury, the court must
decide between the inmate’s account of how the
injury occurred and the account provided by the
officer who testifies/officers who testify. The
inmate bringing an excessive force claim bears
the burden of proving that the officer(s) used
excessive force. In other words, if the judge
finds the inmate's testimony and the
officer's/officers’ testimony equally believable,
the inmate loses and the claim is dismissed.
In deciding whose testimony to believe, the
Court typically considers the following:

! The demeanor of the witnesses.
! The internal consistency of the claimant's
testimony, and whether it squares with the
physical evidence, including evidence of the
claimant's injuries.
" The Court will be suspicious of an
inmate's testimony about excessive force
if medical reports do not show the kinds
of injuries that would be expected. For
example: In Dougal v. State, Claim
No. 102893 (Court of Claims, April 13,
2003), the court dismissed an inmate’s
claim partly because medical reports did
not corroborate the inmate’s testimony.
The Claimant testified that Correction
Officers punched him in the kidney/rib
area 20 to 25 times, and that an officer

Vol. 17, No. 3; Spring 2007

hit his head repeatedly against a steel
doorway 5 to 11 times. He also testified
that his glasses fell on the ground and
that an officer stepped on them. But a
nurse who examined the Claimant
observed no evidence of injury, and
testified that “based upon Claimant’s
description of the nature and duration of
the assault, one would expect to find
very obvious injuries.” The court also
noted that photographs of the inmate
after the alleged assault showed that his
glasses had not been broken. The State
also called a doctor as a medical expert
who testified that with an assault as
described by Claimant, she would
expect to see serious head injuries. The
judge agreed that had the events
unfolded the way the Claimant alleged,
“one would expect very visible and
perhaps life threatening injuries.”
Because there was no such objective
medical evidence consistent with the
inmate’s claims, the judge dismissed the
case.

! The internal consistency of the Correction
Officers’ testimony, and whether it squares
with the physical evidence.
" Where several officers corroborate each
other’s testimony, the court will likely
believe their account.
" Even when the Correction Officers'
testimony about an incident shows
minor inconsistencies, the court will still
credit their account as long as it is
consistent about the critical details of
the incident.
! Photographs or videotapes: In excessive
force cases, “photographs of the condition
of claimant's body immediately after that
alleged force was applied [are] inescapably
relevant, whatever they may or may not

Vol. 17, No. 3; Summer 2007

show.” The law requires “full disclosure of
any films, photographs, video tapes or audio
tapes” involving a party to the case.

! Medical records: Courts will always
examine the claimant's medical records for
proof of injuries. When no medical evidence
substantiates the claimant’s allegations of
injuries, the court will dismiss the claim.
! Results of disciplinary actions or other court
proceedings: When an inmate has been
disciplined or convicted for assaulting the
officer during the same incident during
which the inmate was injured, the court will
be more likely to dismiss the inmate’s
excessive force claim.
! Information from officers’ personnel
records about past conduct not allowed: The
court will not allow the claimant to obtain
information from a Correction Officer’s
personnel records for the purpose of
showing that the officer probably assaulted
the claimant because he had assaulted other
inmates in the past.
Examples of “Reasonable” Use of Force:
There are several situations where the Court
of Claims typically finds that the officers’ use of
force was reasonable and not excessive, even
when the inmate can prove that the use of force
caused an injury.
Inmate-instigated violence:
Where Correction Officers give a credible
account that an inmate instigated violence
against the Correction Officers, the Court will
very likely find that the officers’ use of force in
response was reasonable.

Page 25

q For example, in Blacks v. State, a Claimant
suffered an injury above his eye during an
altercation with Correction Officers. The
inmate claimed that the officers had
slammed his face into some cell bars
without provocation. But an officer testified
that the inmate suddenly kicked another
officer in the knee while being escorted in
handcuffs to the Special Housing Unit, and
that the injury occurred when the officer
then tried to subdue him. Although the
inmate produced a videotape documenting
that he did indeed have an injury above his
eye, the videotape did not show how the
injury happened. Because the injury was
consistent with the officer's account of the
altercation, the court credited the officer’s
testimony and dismissed the inmate’s claim.
q In Quiles v. State, the Claimant admitted
that he had been fighting with another
inmate, but testified that the fight had
broken up by the time Correction Officers
arrived. The Correction Officers testified
that the fight was ongoing when they were
called in to break it up, and that the
Claimant resisted their efforts to subdue
him. The Court found that any injuries the
Claimant suffered were a result of either his
initial fight with the other inmate or his
resisting the officers.
Inmates disobeying orders:
Similarly, if officers give a credible account
that an inmate has resisted an order, the Court
will allow the officers to use some force
(including “takedowns”) to subdue the inmate.

| In Curkendall v. State, a Claimant was able
to produce a videotape of an incident in
which a Correction Officer grabbed his arm
and took him to the floor during a strip frisk.

Page 26

The Claimant also produced a medical
report that showed pain and significant
bruising from a sprained knee, a laceration
above his eye, as well as abrasions to his hip
and back. Nevertheless, the judge found that
because the inmate had resisted the officer's
attempt to remove contraband hidden in his
hand, the officer was justified in wrestling
the inmate to the ground. The amount of
force was “reasonable and appropriate”
because the inmate “disobeyed a direct
order and came off the wall during the
frisk.”

| In Odom v. State, the testimony and written
reports of Correction Officers stated that an
inmate refused to dress himself following a
strip frisk. The court found that this
“continued defiance and aggressive
behavior” justified the officers in “taking
him to the floor to put on his pants.”
| In Williams v. State, a Claimant suffered a
fractured arm in a struggle with Correction
Officers. The Claimant testified that he did
not resist the officers’ orders to raise his
hands for a frisk, and that an officer pushed
his hands up toward his neck while
handcuffed, resulting in the fracture.
However, two officers testified that the
Claimant resisted being placed in handcuffs
and the fracture occurred as one officer
struggled to place him in cuffs. After
observing the witnesses’ demeanor in giving
these differing accounts, the court
concluded that the amount of force was not
excessive under the circumstances.

Vol. 17, No. 3; Spring 2007

lie prone on the floor, “he would not have
experienced the use of force…. His injuries
were the direct result of his own violent and
assaultive behavior that day in his cell.”
Therefore, the officer’s use of force was
reasonable and necessary.
Possession of weapons:

 In Rosell v. State, the Claimant’s ankle was
broken during a struggle with Correction
Officers who had spotted a concealed razor.
The court found that the officers’ use of
force in tackling and restraining the inmate
was reasonable because the inmate “was
armed, attempted to flee, and resisted the
officers.”
Lack of objective evidence as to the cause of an
injury:

) In McKee v. State, the Claimant produced
an x-ray report showing that he had a
dislocated shoulder that he claimed was the
result of an unprovoked assault by
Correction Officers. Despite the x-ray
report, the court dismissed the case on the
ground that the inmate had failed to present
any other evidence indicating how the
shoulder was dislocated. “No use of force
report…or report of inmate injury, or other
independent corroboration of the event was
presented in evidence. Without more,
Claimant's testimony alone does not
persuade the court that the [State] should be
liable for the alleged acts of its employees."
Proving Injuries:

| In Thorpe v. State, the court believed the
Claimant's testimony that he was “slammed”
to the ground when an officer body tackled
him to break up a fight between the
Claimant and his cellmate. But, the court
held, had the Claimant obeyed an order to

Need for an expert:
Expert medical evidence is not necessary
when the injuries documented in a claimant's
medical records are of such a nature as to be

Vol. 17, No. 3; Summer 2007

Page 27

within the range of common knowledge and
experience. An example of a situation where no
medical expert is needed was a case where
medical records showed that an inmate's wrists
showed swelling and abrasions after he was
placed in excessively tight handcuffs--no
medical expert was needed to prove that the
handcuffs caused the abrasions.
But in more complex cases, medical experts
are needed. For example, in one case, an inmate
was struck twice on the jaw by a Correction
Officer and later underwent surgery to remove
a salivary gland from his jaw. The Court of
Claims declined to compensate the inmate for
the surgery because he had not presented
medical evidence proving that the blows to the
jaw caused him to need surgery.

S An inmate who testified that he was struck
twice on the back of the head with a baton
during a pat-frisk was awarded $200.

Damages Available in Excessive Force Cases:

S An inmate assaulted by Correction Officers
using unnecessary force was awarded
approximately $148.95 for his broken sports
eye glasses, $2.43 for lost shower slippers,
and $3,000 for his injuries.

When an inmate succeeds in proving that
excessive force was used, the Court of Claims
can only award compensatory damages. In other
words, the Court can only award compensation
for the actual harm that the inmate is able to
prove. The Court of Claims cannot award
punitive damages (damages intended to punish
the State or the officer).
In excessive force cases, the Court of
Claims has awarded damages for physical
injuries, pain and suffering, and damaged/lost
property. However, even in the handful of cases
where inmates have succeeded in proving
excessive force, damages awarded are usually
modest. For example:

S An inmate who testified that a Correction
Officer banged his head against a metal
door frame and succeeded in proving that
his eye was bruised from the incident was
awarded $100.

S An inmate whose medical records showed
“minimal swelling and small abrasions” on
his wrists after he complained that his
handcuffs were too tight was awarded $200.
S An inmate who suffered knee pain after a
Correction Officer knocked his knee into a
concrete wall received $300.
S An inmate who claimed that he was slapped
and punched by Correction Officers, and
succeeded in proving to the court that “some
excess force was used,” was awarded $500.

Cases in which the Court of Claims has
awarded substantial damages are extremely rare.
In one case more than ten years ago, an inmate
who suffered persistent pain from being struck
on the jaw by a Correction Officer was awarded
$25,000 for his pain and suffering. In another,
an inmate who needed surgery to remove his
spleen after a Correction Officer beat him
“unmercifully” and “without any provocation”
was awarded $200,000 for pain and suffering
and loss of quality of life. But, according to
Pro Se’s research, these are the only cases in
more than a decade where inmates have secured
damage awards in the thousands.

Page 28

Vol. 17, No. 3; Spring 2007

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