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Identically Worded Misbehavior Reports Re: Different Inmates Were Inherently Incredible

The Second Department determined the inmate’s disciplinary determination must be annulled. Identically worded reports, concerning different inmates, signed by at least three different reporting officers, were “inherently incredible:”

The misbehavior report in this case was in the form of a first-person narrative, which provided a number of factual details about the reporting officer as well as the petitioner, including the direction from which the officer arrived at the scene, the exact location from which the officer first observed the disturbance, his personal observation of the petitioner “yelling and shouting,” the officer’s inability to hear the petitioner’s exact words, and the number of direct orders the officer gave the petitioner.

Ordinarily, such a particularized statement would be sufficiently relevant and probative to constitute substantial evidence supporting the determination … . Here, however, the petitioner successfully challenged the reliability of the report by showing that identically worded reports (except for the name and identifying information of the subject inmate) were signed by at least three different reporting officers.

While it is entirely plausible that several inmates, in the course of a disturbance, may have engaged in substantially similar misbehavior, we find it inherently incredible that several officers could have experienced the same particularized encounter with a number of different inmates. We further note that the hearing officer twice precluded the petitioner from asking the reporting officer whether he had actually written the unsworn report. Matter of Jackson v Annucci, 2015 NY Slip Op 07842, 2nd Dept 10-28-15

 

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