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Department of Corrections Has Right to Force-Feed Inmate on Hunger Strike

The Court of Appeals determined that the state has the right to force-feed an inmate (Dorsey) who is on a hunger strike, once the inmate’s life is in jeopardy.  The opinion by Judge Graffeo is lengthy and deals with preservation requirements, the mootness doctrine, as well as the constitutional rights implicated in the refusal of medical care.  Judge Lippman dissented, addressing primarily his view that the issues discussed on appeal had not been preserved and the “exception to mootness” doctrine had been misapplied.  Judge Graffeo wrote:

It is therefore evident that DOCCS’ decision to intervene when Dorsey’s hunger strike progressed to the point that his life was in jeopardy was reasonably related to legitimate penological objectives. Taking action to interrupt an inmate hunger strike not only serves to preserve life and prevent a suicide but also to maintain institutional order and security. There was no way that DOCCS could effectuate these interests other than to seek a judicial order permitting feeding by nasogastric tube — less intrusive means had been attempted without success. Dorsey had been moved to the infirmary and medical staff within the facility had repeatedly counseled him in an attempt to get him to voluntarily abandon the hunger strike (as he had done before) to no avail. Matter of Bezio v Dorsey, No 65, CtApp, 5-2-13

 

Department of Corrections Immune from Wrongful Confinement Suit

The Third Department affirmed the dismissal of a complaint by an inmate suing the Department of Corrections for wrongful confinement (after the annulment of a disciplinary determination) on immunity grounds: “[A]ctions of correctional facility employees with respect to inmate discipline matters are quasi-judicial in nature and, unless the employees exceed the scope of their authority or violate the governing statutes and regulations, [defendant] has absolute immunity for those actions”… .Loret v State of New York, 514609, 3rd Dept, 5-2-13

 

Misbehavior Report Did Not Supply Sufficient Notice of Alleged Offense

In annulling a disciplinary finding, the Third Department held the misbehavior report did not provide sufficient notice of the alleged offense:

Petitioner contends that his due process rights were violated because the misbehavior report failed to comply with the particularity requirements of 7 NYCRR 251-3.1 (c). This regulation provides that a misbehavior report must set forth “the date, time and place of the offense, . . . the disciplinary rule alleged to have been violated and . . . the factual basis for the charge with enough particularity to enable the inmate to prepare a defense” (… 7 NYCRR 251-3.1 [c]). Here, the misbehavior report, which was prepared by the correction officer who tested the substance, simply stated that a substance given to him by another correction officer tested positive for marihuana. Significantly, it did not indicate that the officer who gave him the substance obtained it from petitioner’s cell nor did it provide any details as to exactly where the substance was found.  To add to the confusion, the report listed the location of the incident as the “chart office.”  Matter of Simmons v Fischer, 514873, 3rd Dept, 4-25-13

 

Failure to Record Testimony Relied Upon by Hearing Officer Required Annulment

The failure to record testimony which was relied upon by the hearing officer in a disciplinary determination required annulment.  Matter of Tolliver v Fischer, 514866, 3rd Dept, 4-18-13

 

Failure to Make Sufficient Effort to Transport Injured Inmate to His Hearing Required Annulment

In annulling a disciplinary determination, the Third Department ruled the inmate’s statement to the escort officer that he had injured his foot and could not put on a shoe (to walk to the disciplinary hearing) did not constitute a refusal to attend the hearing:

“[A]n inmate has a fundamental right to be present at his or her disciplinary hearing, unless he or she waives such right or refuses to attend”  …. Here, instead of “transporting petitioner to the hearing by  wheelchair, stretcher or other appropriate conveyance  or arranging to have medical personnel examine petitioner or otherwise developing a record on the issue of petitioner’s physical ability to walk” … – or even exploring the possibility of allowing petitioner to leave his SHU cell with only one shoe – the Hearing Officer summarily accepted the  escort  officer’s characterization of  petitioner’s conduct  as a blatant refusal to attend the hearing … .Under these circumstances, the record does not support the finding that petitioner “willfully refused”… .  Matter of Brooks v James, 514707, 3rd Dept, 4-18-13

 

Failure to Make Sufficient Effort to Have Inmate’s Witness Testify Required a New Hearing

The Third Department ordered a new disciplinary hearing where insufficient efforts were made to procure the testimony of a witness requested by the inmate:

When  petitioner requested that a fellow inmate  testify at the  disciplinary  hearing,  the Hearing  Officer merely  noted  that the witness had informed petitioner’s employee assistant that he refused  to  testify. Such a notation by the Hearing Officer, without any attempt to determine the reason for the witness’s refusal, is not a sufficient basis upon which to deny petitioner’s right to call the witness … Matter of Dickerson v Fischer, 514685, 3rd Dept, 4-18-13

 

 

Charges Based On Information Learned by the Improper Opening of Inmate’s Mail Required Annulment of the Determination

The Fourth Department annulled a determination finding petitioner had violated inmate rules which was based entirely on the contents of the inmate’s mail (opened and read by prison authorities).  The Fourth Department wrote:

Pursuant to 7 NYCRR 720.4 (f) (2), the prison superintendent must request documentation from the person seeking authority to open incoming mail so as “to determine that there are sufficient grounds for reading the mail, that the reasons for reading the mail are related to the legitimate interests of safety, security, and order, and that the reading is no more extensive than is necessary to further th[o]se interests.” Here, the evidence presented at the hearing did not establish that the superintendent complied with the above mandate before authorizing the opening of petitioner’s mail. Because evidence that was admitted at the hearing was seized in contravention of respondent’s rules and regulations, the Hearing Officer’s determination based on that evidence “must be annulled and all references thereto expunged from petitioner’s file”… . Matter of Singletary v Fischer, 167, TP 12-01564, 4th Dept. 3-22-13

 

Punishment Was “Shocking to One’s Sense of Fairness”

In an Article 78 proceeding, the Fourth Department determined the punishment imposed upon an inmate (for an assault on staff) after a Tier III disciplinary hearing, was too severe. The Court determined that “the punishment imposed of four years’ confinement in the Special Housing Unit (SHU) together with four years’ loss of good time and various privileges “ ‘ is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness’ “ … .  Considering the inmate’s age at the time of the incident (17) and the facts of the incident, the Fourth Department reduced the time in the SHU and the loss of good time and privileges to 18 months.  In the Matter of Cookhorne v Fischer, 162, TP 12-01634, 4th Dept. 3-15-13

 

Tape Recording Reflecting Frustration About Treatment of Muslim Inmates Did Not Warrant Punishment

The Third Department annulled the disciplinary hearing determination which found that the petitioner had engaged in prohibited “violent conduct” based on a tape recorded conversation.  After reviewing the tape, the Court ruled that the disciplinary rules prohibiting “conduct involving the threat of violence” and participation in “a work stoppage, sit-in, lock-n, or other actions which may be detrimental to the order of the facility” had not been violated. The evidence revealed only that “petitioner was agitated after incidents in which other Muslim inmates had allegedly been assaulted by correction officers. He indicated to the inmates at the meeting that they needed to do something about it and specifically mentioned ‘starting a paper trail.’ Significantly, he did not advocate violent or disorderly action.”  In the Matter of Murray, v Fischer, 514687, 3rd Dept. 3-14-13

 

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Prisoner Must Object at Hearing to Obtain Judicial Review

A prisoner’s failure to object or raise any procedural issues before the Hearing Officer renders any such issues unpreserved for judicial review. In the Matter of Austin v Fischer, 514568, 3rd Dept. 3-7-13

 

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