Bones v. Warden, New York City Correctional Institution for Men

• Decision Date: 08 January 1974
• Citation: 352 N.Y.S.2d 119,77 Misc.2d 617
• Parties: Application of William F. BONES, Petitioner, for a judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. WARDEN, NEW YORK CITY CORRECTIONAL INSTITUTION FOR MEN, Respondent.
• Court: New York Supreme Court

Page 119

352 N.Y.S.2d 119

77 Misc.2d 617

Application of William F. BONES, Petitioner, for a judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. WARDEN, NEW YORK CITY CORRECTIONAL INSTITUTION FOR MEN, Respondent.

Supreme Court, Bronx County, Part 24.

Jan. 8, 1974.

William Gallagher, New York City, for petitioner; William E. Hellerstein, Joseph Alan Kaplan, Joel Berger, Warren H. Richmond, III, New York City, of counsel.

Norman Redlich, New York City, for respondent; Rosemary Carroll, New York City, of counsel.

ERNST H. ROSENBERGER, Justice:

The Petitioner is currently an inmate of the New York City Correctional Institution for Men. He has brought an Article 78 proceeding seeking a judgment restoring to him 85 days good behavior time revoked as a result of nine disciplinary proceedings conducted at that institution.

The record shows many instances of failure to accord Petitioner due process. The most glaring example was the failure on the part of Respondent to provide Petitioner with published rules of the New York City Department of Correction or the N.Y.C.C.I.F.M., other than Other jurisdictions have recognized this right to published rules which we hold is part of the Notice phase of due process. Notice must be proper before anyone can consider whether the hearing phase of due process is adequate. Notice does not only mean written notice of the charges (which was not given here) but it encompasses prior notice of what acts are prohibited. The United States District Court for the Eastern District of Virginia found that 'the existence of some reasonably definite rules is a prerequisite to prison discipline of any substantial sort. Regulations must in addition be distributed, posted, or otherwise made available in writing to inmates.' (Landman v. Royster, 333 F.Supp. 621 (E.D.Va.1971).) Accord Sinclair v. Henderson, 331 F.Supp. 1123, 1127 (E.D.La.1971); Inmate 24394 v. Schoen, 363 F.Supp. 683, 688 (D.Minn.1973) (consent decree); Crowe v. Erickson, (D.S.D., No. 72--4101, August 24, 1973); Goldsby v. Carnes, 365 F.Supp. 395 (W.D.Mo.1973) (consent decree); Bishop v. Lamb, (D.Nev., Civil LV 1864, August 24, 1973).

                those posted on the walls and set forth in the appendix hereto.  [77 Misc.2d 618] Therefore Petitioner was never informed of the acts which constitute disciplinary infractions and the penalties which may be imposed for said acts.  Petitioner should have been provided with a comprehensive statement of what conduct is forbidden at Rikers Island and what sanctions can be imposed for infractions.  1  The failure to promulgate written rules and make them readily and easily available to the inmate population clearly constitutes a denial of minimal due process.  (Rhem v. McGrath, 326 F.Supp. 681 (S.D.N.Y.1971).)
                

In this case, where the rules were in fact not published, and according to the testimony of Warden Cunningham with the exception of those set forth in the appendix, did not exist in writing, Petitioner had no way of knowing which acts were prohibited and might result in his punishment. ²

To make notice further defective Petitioner was also not provided with written notice of the charges in advance of each hearing. This right in prison disciplinary hearings has already been established. (Landman v. Royster, 333 F.Supp. 621 (E.D.Va.1971); United States ex rel Miller v. Twomey, 479 F.2d 701, 716 (7th Cir. 1973); Sinclair v. Henderson, 331 F.Supp. 1123, 1129 (E.D.La.1971); Clutchette v. Procunier, 328 F.Supp. 767, 782 (N.D.Cal.1971); Sands v Written notice has the twofold purpose of allowing a prisoner to prepare his defense and also that of keeping the hearing within proper bounds. Where the notice is oral, such as in this case, there is too great a danger that the hearing will be enlarged to include material beyond the scope of the original charge. Supplying such written notice to inmates cannot constitute an undue burden to Respondent since charges and specifications are prepared, in writing, in advance of hearings.

Wainwright, 357 F.Supp. 1062 (M.D.Fla.1973); Collins v. Hancock, 354 F.Supp. 1253 (D.N.H., 1973); Crowe v. Erickson, (D.S.D., No. 72--114, Aug. 24, 1973); Bishop v. Lamb, (D.Nev., No. LV--1864, Aug. 24, 1973); Inmates of the Milwaukee County Jail v. Petersen, 353 F.Supp. 1157, 1167 (E.D.Wis.1973); Obadele v. McAdory, (S.D.Miss., No. 72--J--103(n), Jan. 19, 1973); Workman v. Kleindienst, (W.D.Wash., No. 8--71C3, July 20, 1973); Johnson v. Lark, 365 F.Supp. 289 (E.D.Mo.1973). See also Inmate 24394 v. Schoen, 363 F.Supp. 683, 684 (D.Minn.1973) (consent decree); Bundy v. Cannon, 328 F.Supp. 165, 175 (D.Md.1971) (consent decree); Morris v. Travisono, 310 F.Supp. 857, 872 (D.R.I.1970) (consent decree); Inmates of the Maine State Prison v. Mullaney, (D.Me., No. 11--187, Jan. 4, 1973) (consent decree).)

Minimum standards of due process apply to a prisoner in a case of forfeiture of good time. (Workman v. Kleindienst, (W.D.Wash., No. 8--71C3, July 20, 1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).)

Certainly Petitioner was not afforded due process in the taking away of 85 days of good time without having proper notice in the broad due process sense of the term.

If we can assume that Bones committed acts inimical to his fellow prisoners and to the staff of the Institution, it may well be that, if he had been advised as to what was prohibited, there is some chance that he might have refrained from such conduct. If he did not in fact refrain he could have been punished for violating written standards and would have had no due process complaint. By failing to follow proper procedures, Respondent may well have been remiss in his duty to safeguard the health and welfare of other inmates and Institutional staff. The other inmates have a right to personal security against unlawful invasion (Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir., 1944), cert. denied, 325 U.S. 887, 65 S.Ct. 1568, 89 L.Ed. 2001 (1945)).

The record shows that confrontation and cross-examination would have been more than helpful in determining the facts in several of the infraction hearings here involved. The procedure, in each instance The right to confront and cross-examine adverse witnesses is so basic that extended discussion is not necessary. Mr. Chief Justice Warren wrote in Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1950):

was that the direct case consisted of the written statement, often minimal, of the complaining and investigating officers. In an instance where the complaining officer was a superior officer there was no investigation by another officer. It is clear that the board members simply accepted the officers' statements: In some instances because the hearing officer personally knew the complaining officer to be a 'good officer'; in others, because the officer had a good reputation.

'Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirement of confrontation and cross-examination. . . . This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases . . . (citing) but also in all types of cases where administrative and regulatory actions were under scrutiny.'

The necessity for cross-examination and confrontation is no less in the context of a prison disciplinary hearing and in recent years numerous courts have found this safeguard indispensable. McDonnell v. Wolff, 483 F.2d 1059, 1063 (8th Cir. 1973); Sands v. Wainwright, 357 F.Supp. 1062, 1087--1088 (M.D.Fla.1973); Bundy v. Cannon, 328 F.Supp. 165, 176 (D.Md.1971) (consent decree); Colligan v. United States, 349 F.Supp. 1233, 1238 (E.D.Mich.1972); Clutchette v. Procunier, 328 F.Supp. 767, 779 (N.D.Cal.1971); Rinehart v. Brewer, 360 F.Supp. 105, 115 (D.Iowa, 1973); Worley v. Bounds, 355 F.Supp. 115, 122 (W.D.N.C.1973); Landman v. Royster, 333 F.Supp. 621, 653 (E.D.Va.1971); Collins v. Hancock, 354 F.Supp. 1253 (D.N.H., 1973); Inmates of Maine State Prison v. Mullaney, (D.Me., No. 11--187, Jan. 4, 1973) (consent decree); Crowe v. Erickson, (D.S.D., No. 72--4101, Aug. 24, 1973); Batchelder v. Geary, (N.D.Cal., No. C--71--2017, April 16, 1973); Bishop v. Lamb, (D.Nev., No. LV--1864, Aug. 24, 1973); Workman v. Kleindienst, (D.Wash., No. 8--71C3, July 20, 1973); Inmate While there may be problems in permitting inmates to cross-examine officers, these do not rise to the level that this essential element of securing truth and finding facts should be eliminated. The failure to afford confrontation and cross-examination to Petitioner was a denial of due process.

24394 v. Schoen, 363 F.Supp. 683, 687 (D.Minn., 1973) (consent decree); Johnson v. Lark, 365 F.Supp. 289 (E.D.Mo.1973); In re Lamb, [77 Misc.2d 621] 34 Ohio App.2d 85, 296 N.E.2d 280 (1973); see also Jacob, Prison Discipline and Inmates' Rights, 5 Harv.Civ.Rts.Civ.L.b.L.Rev. 227, 276, 347 (1970); Millemann, Prison Disciplinary Hearings and Procedural Due Process--the Requirement of a Full Administrative Hearing, 31 Md.L.Rev. 27, 51 (1971); Bront. Prison Disciplinary Procedures: Creating Rights, 21, Clev.St.L.Rev. 83, 91--93 (1972).

On the issue of witnesses it appears from the record that Petitioner's failure to call witnesses on his behalf lies largely with...