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INMATE’S ‘THREAT’ TO BRING A LAWSUIT WAS NOT AN ACTIONABLE RULE VIOLATION (FOURTH DEPT).

The Fourth Department, annulling the “threats” charge, determined that the “threat” to file a lawsuit was not a proper basis for the charge:

… [R]espondent's determination of guilt on the threats charge under inmate rule 102.10 must be annulled. Although respondent correctly notes that “an inmate need not threaten violence in order to be found guilty of [making threats under rule 102.10]” … , a statement cannot be a “threat” within the meaning of inmate rule 102.10 unless, at the very minimum, it [*2]conveys an intent to do something illegal, improper, or otherwise prohibited … . Here, petitioner did not convey an intent to do anything illegal, improper, or otherwise prohibited. To the contrary, petitioner merely conveyed his intent to exercise his constitutional right to access the courts … , and he cannot be penalized for “threatening” to do something, i.e., file a lawsuit, that he has every legal right to do. As the United States Supreme Court has explained, “[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, . . . and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is patently unconstitutional' ” (Bordenkircher v Hayes, 434 US 357, 363 [1978], reh denied435 US 918 [1978], quoting Chaffin v Stynchcombe, 412 US 17, 32 n 20 [1973]). Moreover, respondent's interpretation of the word “threat” in this context would effectively nullify the protections afforded by Correction Law § 138 (4), which bars an inmate from being “disciplined for making written or oral statements, demands, or requests involving a change of institutional conditions, policies, rules, regulations, or laws affecting an institution.” Matter of Gourdine v Annucci, 2018 NY Slip Op 06391, Fourth Dept 9-29-18

DISCIPLINARY HEARINGS (INMATES) (INMATE'S 'THREAT' TO BRING A LAWSUIT WAS NOT AN ACTIONABLE RULE VIOLATION (FOURTH DEPT))

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