Summary
In Brooks v. James (105 AD3d 1233), petitioner told a correction officer who was to escort him to a hearing that he could not wear one of his shoes due to a toe injury.
Summary of this case from Martinez v. N.Y.C. Dep't of Corr.Opinion
2013-04-18
In the Matter of David BROOKS, Petitioner, v. R. JAMES, as Superintendent of Livingston Correctional Facility, et al., Respondents.
David Brooks, Auburn, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.
David Brooks, Auburn, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.
Before: ROSE, J.P., LAHTINEN, GARRY and EGAN JR., JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Superintendent of Livingston Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with possessing unauthorized medication and an altered item after a search of his cell disclosed an impermissible amount of medication (three ibuprofen tablets). Following a tier II disciplinary hearing, petitioner was found guilty as charged, and his subsequent administrative appeal proved to be unsuccessful. This CPLR article 78 proceeding ensued.
Initially, respondents concede—and we agree—that the portion of the determination finding petitioner guilty of possessing an altered item cannot be sustained. As to the remaining charge, petitioner contends that the Hearing Officer erred in conducting the latter portion of the disciplinaryhearing in his absence. In this regard, the record reflects that when a correction officer went to the special housing unit (hereinafter SHU) to escort petitioner to the hearing, petitioner advised the officer that an injury to the big toe on his left foot prevented him from wearing a shoe on that foot. The correction officer returned to the hearing room alone and relayed this information to the Hearing Officer, stating, “[Petitioner] can't put his shoe on, which doesn't meet the criteria for coming out of his cell [in] SHU, so he's basicallyrefused,” and provided the Hearing Officer with a signed waiver form, upon which petitioner explained his injury and his unsuccessful attempts to obtain treatment.
“[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” ( Matter of Alicea v. Selsky, 31 A.D.3d 1080, 1080, 819 N.Y.S.2d 202 [2006] [internal quotation marks and citations omitted]; see Matter of Holmes v. Drown, 23 A.D.3d 793, 794, 804 N.Y.S.2d 823 [2005] ). 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” ( Matter of Hakeem v. Coombe, 233 A.D.2d 805, 806, 650 N.Y.S.2d 819 [1996] )—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 ( see id. at 806, 650 N.Y.S.2d 819). Under these circumstances, the record does not support the finding that petitioner “willfully refused” ( Matter of Alicea v. Selsky, 31 A.D.3d at 1081, 819 N.Y.S.2d 202) or “knowingly, voluntarily or intelligently relinquish[ed] his right to attend the hearing” ( Matter of Hakeem v. Coombe, 233 A.D.2d at 806, 650 N.Y.S.2d 819 [internal quotation marks and citations omitted]; compare Matter of Raqiyb v. Fischer, 82 A.D.3d 1432, 1433, 919 N.Y.S.2d 543 [2011] [Hearing Officer interviewed medical personnel regarding inmate's maladies and escort officer testified that inmate was ambulatory]; Matter of McFadden v. Dubray, 61 A.D.3d 1170, 1170–1171, 878 N.Y.S.2d 468 [2009] [Hearing Officer personally interviewed inmate in the infirmary and questioned facility nurse as to inmate's ability to utilize an available wheelchair]; Matter of Davis v. Goord, 20 A.D.3d 706, 707–708, 800 N.Y.S.2d 634 [2005],lv. denied5 N.Y.3d 715, 807 N.Y.S.2d 16, 840 N.E.2d 1030 [2005] [Hearing Officer personally observed and interviewed inmate and consulted with facility nurse]; Matter of Lebron v. Goord, 288 A.D.2d 583, 584, 732 N.Y.S.2d 282 [2001],lv. denied97 N.Y.2d 608, 739 N.Y.S.2d 97, 765 N.E.2d 300 [2002] [inmate's claimed inability to walk belied by testimony of facility nurse and escort officer] )—a conclusion that, under these circumstances, is in no way altered by petitioner's execution of the waiver form ( compare Matter of Watson v. Fischer, 98 A.D.3d 1171, 1172, 950 N.Y.S.2d 818 [2012] [inmate's complaint of back pain belied by escort officer's observations and testimony of facility nurse]; Matter of Spirles v. Wilcox, 302 A.D.2d 826, 826, 754 N.Y.S.2d 602 [2003],lv. denied100 N.Y.2d 503, 761 N.Y.S.2d 595, 791 N.E.2d 961 [2003] [same] ). “In view of this violation of a fundamental due process right, expungement is required” ( Matter of Hakeem v. Coombe, 233 A.D.2d at 806, 650 N.Y.S.2d 819 [citation omitted]; see Matter of Alicea v. Selsky, 31 A.D.3d at 1081, 819 N.Y.S.2d 202) and, therefore, we need not address petitioner's remaining arguments.
ADJUDGED that the determination is annulled, without costs, petition granted and respondents are directed to expunge all references to this matter from petitioner's institutional record.