TIER III Hearings – Guide to Reversing Guilty Determinations
The following is intended as a guide on how to maximize an inmate’s chances at beating DOCS at its own game. Most alleged misbehavior incidents are different from all others in most respects; the place of the alleged incident, the date, time, rule violations charged with, officer reporting, Hearing Officer assigned, date(s) of hearing, witnesses … these things and more make different most cases, and because of such dissimilarities, the following guide will not work in all cases. As numerous reported court decision show, however, it will work in many cases, if followed carefully.
A Tier III infraction is the most serious of DOCS’ 3-teir disciplinary matrix. A finding of guilt following a Tier III Superintendent’s Hearing is punishable by years of confinement to a Special Housing Unit (“SHU”), oftentimes referred to as “The Box”.
An inmate who is charged with a Tier III violation is usually placed in the box right away. Pre-hearing confinement is the term. He/she goes to their superintendent’s hearing from the box. Upon being found guilty they are returned to SHU for service of their penalty. When the penalty imposed consists of 30 days or more SHU confinement, they are usually sent to Upstate, Southport, or one of the several maximum security SHUs that are at medium security facilities (e.g., Lakeview, Midstate, Orleans, Gouverneur, etc.).
At close of a hearing where the inmate is found guilty, the hearing officer must advise that he/she has 30 days within which to appeal the determination of guilt and/or penalty imposed. The inmate intent on appealing will either try to wing it on his/her own from a SHU cell, hand-writing his appeal without the benefit of law books, or they will send it to an inmate law clerk working in that prison’s law library and hope the clerk can do the appeal for them. In the mean time, the 30-day clock is running; where an inmate’s transfer to Upstate, Southport, etc. occurs within that 30 days – and it usually does – a good week or more is lost while the inmate is awaiting their property. Even more time is lost where the inmate sends their papers to the law library in the prison at which the alleged incident occurred, and is then shipped to another SHU before getting their papers back. If requested in writing before the end of the 30-day window, Central Office will sometimes grant an extension of time for filing of the appeal. But it does not have to. It is therefore important to get the administrative appeal filed as soon as possible after the guilty disposition is entered. It is a good idea to mail the appeal certified, return receipt, as DOCS has been known to claim that appeals were not timely filed, resulting in its refusal to consider them.
Central Office has 60 days after receipt of an administrative appeal within which to decide it. Most administrative appeals are denied. That should be anticipated, just as it should be anticipated that the inmate will be found guilty at the hearing. It’s the way it is.
From the date the administrative appeal is denied, the aggrieved inmate has four months within which to file for Article 78 relief in the State Supreme Court. It is at that level that the inmate has the best chance to win. Far more Superintendent’s Hearing adjudications of guilt are reversed through the filing of an Article 78 petition than are administratively reversed by Central Office. It is of utmost importance that the initial petition and other required papers are filed well within that 4-month window. There can be no extensions for the filing of the initial petition as the timeline is set by statute. Also, pursuant to what is known as the contemporaneous objection rule, the State Supreme Court cannot entertain legal arguments that are not adequately “preserved” for Article 78 review. Preserving a legal argument requires that it first be raised either at the hearing, or on administrative appeal. If whatever legal issue is not adequately preserved, regardless of how strong it may be, the court will dismiss it. Therefore extremely important for Article 78 purposes is that the record of the Superintendent’s Hearing and the administrative appeal clearly advance the legal arguments being raised in the Article 78 petition.
When an Article 78 petition is filed, the court reads it and its related papers to initially determine if it is timely and if it raises a colorable claim upon which the requested relief can be granted. If the court is satisfied it meets that threshold criterion, it will then issue an order directing the Respondent (DOCS) show cause by a date certain why the requested relief should not be granted. The order is usually mailed to the inmate and he/she becomes responsible for making copies of it, the supporting affidavit, the verified petition, and other papers, and serving them on DOCS and the Attorney General by a specified date.
It is once DOCS and the Attorney General are served with the Article 78 petition that most reversals occur. As of today there are hundreds upon hundreds of reported case decisions proving this true. And in the vast majority of those cases, DOCS and the State Attorney General folded. At http://www.prisontalk.com/forums/showthread.php?t=506726 I posted three very recent Third department Appellate Division decisions dealing with Tier III hearings, in which the court held, in sum and substance, that the Attorney General advised the court that the matter had been administratively reversed and all references to the matter expunged from the inmate’s records, whereupon the court dismissed the case as moot upon the ground that the reversal and expunging of records gave the inmate all the relief he was entitled to. (As will be more fully explained later, not necessarily true is that an inmate can’t realize other relief than release from the box and the sanitizing of his/her institutional records).
The rules, regulations, policies and procedures governing DOCS’ Tier III disciplinary system are set forth under Chapter V of Title 7 New York Codes, Rules and Regulations (“NYCRR”). Those rules, regulations, policies and procedures are many. Also governing is a plethora of federal and state constitutional law, statutory law, and decisional law. Over the many years I have worked in the legal profession, never once have I seen a case where DOCS complied with the law fully in any one Tier III case. Knowing the law, and being able to argue it convincingly, is the key to success at this level. Department Counsel for DOCS and the State Attorney General are timely served with an Article 78 petition advancing adequately preserved compelling legal arguments. They concur the inmate petitioner has raised good legal arguments that could result in a published court decision that other inmates could use against DOCS in the future. They don’t want to run the risk of a court deciding against it. They don’t want to run the risk that such an unfavorable decision might open the floodgates to litigation against it. Their decision is therefore simple: DOCS administratively reverses the finding of guilt, releases the inmate from the box, and expunges all department records relating to the alleged underlying misconduct. As DOCS’ lawyer, the Attorney General informs the court that DOCS has administratively reversed and expunged. Because the inmate thereby receives the relief he was entitled to in an Article 78 proceeding, the court dismisses the case. Again, the decision is simple: DOCS still gets its pound of flesh from the inmate by sending him/her to the box, depriving them of packages, calls home, etc. And there’s no bad law on the books to prevent it from doing the same thing again. Thus, at this level, even though the inmate wins release from the box and gets his/her institutional files expunged, DOCS still wins in some ways.
As mentioned earlier, there are times when an inmate can realize more relief yet. The U.S. Supreme Court decision in Sandin v. Connor, 515 U.S. 472 opened the door to federal civil rights suits against prison officials for violating inmates’ rights to remain free of unlawful disciplinary confinement. Under Palmer v. Richards, 364 F.3d 60, the “atypical and significant hardship” doctrine established in Sandin has been interpreted by the Second Circuit Court of Appeals in New York as giving rise to causes of action against prison officials when an inmate is unlawfully confined to the box for more than 90 days. Well-pled federal civil rights complaints filed under 42 U.S.C. § 1983 for excessive unlawful box confinement oftentimes result in monetary compensation to the aggrieved inmate.
Necessary to success on Article 78 is record issue preservation, good working knowledge of all applicable constitutional, statutory and administrative law, compliance with governing time frames and proper service of pleadings. And necessary to success on a federal civil rights action seeking monetary compensation for unlawful disciplinary confinement is exoneration of the underlying Tier III via either administrative appeal or Article 78. Far and few between are inmates who are sufficiently versed in pertinent law to prevail in these types of legal proceedings. It is therefore a good idea to seek the assistance of counsel who is knowledgeable in these specialized areas of law if serious about overturning a Tier III adjudication of guilt and/or if interested in pursuing damages before a federal court.
Finally, though sustained misbehavior reports generally do not adversely affect inmates serving determinate terms of imprisonment, elementary is that Tier III adjudications of guilt can and usually do have a profound adverse affect on inmates serving indeterminate terms; the board of parole religiously gives great weight to an inmate’s disciplinary record when deciding whether or not to grant discretionary release. Reversing a Tier III infraction should therefore be of paramount importance to inmates serving indeterminate terms of imprisonment in order to appear before the parole board without adjudications of guilt for serious misconduct.
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