In the Matter of Jevon Henry, Appellant,v.Brian Fischer,, Respondent.BriefN.Y.November 14, 2016To be Argued by: DONNA H. LEE Time Requested: 20 minutes New York County Clerk’s Index No. 6386-2012 Case No. APL-2014-00269 IN THE MATTER OF THE APPLICATION OF JEVON HENRY, Petitioner-Appellant, - against - BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent-Appellee. BRIEF FOR PETITIONER-APPELLANT Donna H. Lee, Esq. Main Street Legal Services, Inc. 2 Court Square Long Island City, NY 11101 Telephone: 718-340-4300 David H. Herrington, Esq. Izukanne Emeagwali, Esq. Jessica Thompson, Esq. CLEARY GOTTLIEB STEEN & HAMILTON LLP One Liberty Plaza New York, New York 10006 Telephone: 212-225-2000 Facsimile: 212-225-3999 Attorneys for Petitioner-Appellant Dated: November 18, 2015 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................. ii QUESTIONS PRESENTED .................................................................................. 1 JURISDICTIONAL STATEMENT ....................................................................... 1 PRELIMINARY STATEMENT ............................................................................ 2 STATEMENT OF FACTS .................................................................................... 6 ARGUMENT........................................................................................................12 POINT I: MR. HENRY DID NOT WAIVE HIS RIGHT TO JUDICIAL REVIEW OF THE HEARING OFFICER’S DENIAL OF HIS REQUESTS FOR DOCUMENTS AND WITNESSES ..............................12 A. Even In Court Proceedings When Parties Are Represented By Counsel, The Making Of A Request Suffices To Preserve An Issue For Review .........................................................................12 B. Once A Request Has Been Made, The Issue Is Preserved Unless There Is A “Clear Intent” To Waive The Request.............17 C. Because Inmates Faced With Disciplinary Proceedings Are Pro Se, The Rules Of Waiver Should Be Less Severe ........................20 POINT II: ANY PURPORTED WAIVER OF MR. HENRY’S CONSTITUTIONAL RIGHT TO CALL WITNESSES AND REQUEST DOCUMENTS WAS NOT KNOWING, VOLUNTARY AND INTELLIGENT .................................................................................25 POINT III: MR. HENRY PROPERLY RAISED AND PRESERVED HIS CHALLENGE TO THE DENIAL OF HIS REQUESTS FOR WITNESSES AND DOCUMENTS, BY RAISING THESE ISSUES DURING THE ADMINISTRATIVE REVIEW..........................................27 CONCLUSION ....................................................................................................30 ii TABLE OF AUTHORITIES Page Rules and Statutes N.Y. C.P.L.R. § 4017 (McKinney 2015) ...................................................... passim N.Y. C.P.L.R. § 5501(a)(3) (McKinney 2015) ............................................. passim N.Y. Crim. Proc.§ 470.05(2) (McKinney 2015) ........................................... 13 Cases Allen v. Goord, 14 A.D.3d 961 (3d Dep’t 2005) ................................................................... 26-27 Barnes v. LeFevre, 69 N.Y.2d 649 (1986) .................................................................................. 28 Bennett v. Goord, 343 F.3d 133 (2d Cir. 2003) ......................................................................... 21 Brownell v. Krom, 446 F.3d 305 (2d Cir. 2006) ......................................................................... 21 Coleman ex rel. Coleman v. Daines, 19 N.Y.3d 1087 (2012) ................................................................................ 11 Cordova v. Coughlin, 206 A.D.2d 475 (2d Dep’t 1994) ................................................................. 29 Correnti v. Prack, 93 A.D.3d 970 (3d Dep’t 2012) ................................................................... 28 Davis v. Ayala, 135 S. Ct. 2187 (2015) ................................................................................. 23 Dawes v. Selsky, 239 A.D.2d 796 (3rd Dep’t 1997) ................................................................ 29 Doe v. Marsh, 105 F.3d 106 (2d Cir. 1997) ......................................................................... 5-6, 26 iii Escoto v. Goord, 9 A.D.3d 518 (3d Dep’t 2004) ..................................................................... 20, 27 Forsyth v. Fed’n Employ’t & Guidance Serv., 409 F.3d 565 (2d Cir. 2005) ......................................................................... 21 Garrett v. Goord, 14 A.D.3d 826 (3d Dep’t 2005) ................................................................... 19-20 Gonzalez v. State Liquor Auth., 30 N.Y.2d 108 (1972) .................................................................................. 16 Grant v. Senkowski, 146 A.D.2d 948 (3d Dep’t 1989) ................................................................. 11 Gross v. Henderson, 79 A.D.2d 1086 (4th Dep’t 1981) ................................................................ 11 Jamison v. Fischer, 78 A.D.3d 1466 (3rd Dep’t 2010) ................................................................ 29 Johnson v. Coombe, 244 A.D.2d 664 (3d Dep’t 1997) ................................................................. 26 Johnson v. Goord, 247 A.D.2d 801 (3rd Dep’t 1998) ................................................................ 29 Love v. Pullman Co., 404 U.S. 522 (1972) ..................................................................................... 5, 21 Mars Assocs., Inc. v. N.Y.C. Educ. Constr. Fund, 126 A.D.2d 178 (1st Dep’t 1987) ................................................................. 14 Moore v. Goord, 281 A.D.2d 736 (3rd Dep’t 2001) ................................................................ 29 Morales v. Fischer, 89 A.D.3d 1346 (3d Dep’t 2011) ................................................................. 28 Moye v. Fischer, 93 A.D.3d 1006 (3rd Dep’t 2012) ................................................................ 29 iv New York v. Charada T., 23 N.Y.3d 355 (2014) .................................................................................. 16 People v. Grice, 98 A.D.3d 755 (3d Dep’t 2012) ................................................................... 14 People v. Le Mieux, 51 N.Y.2d 981 (1980) .................................................................................. 17 People v. Leisner, 73 N.Y.2d 140 (1989) .................................................................................. 17 Robinson v. Fischer, 68 A.D.3d 1687 (3rd Dep’t 2009) ................................................................ 29 Roma v. Blaustein, 44 A.D.2d 576 (2d Dep’t 1974) ................................................................... 14 Ruotolo v. I.R.S., 28 F.3d 6 (2d Cir. 1994) ............................................................................... 21 Sharpe v. Conole, 386 F.3d 482 (2d Cir. 2004) ......................................................................... 21 Silva v. Scully, 138 A.D.2d 717 (2d Dep’t 1988) ................................................................. 29 Sowa v. Looney, 23 N.Y.2d 329 (1968) .................................................................................. 16 Triestman v. Fed. Bureau of Prisons, 470 F.3d 471 (2d Cir. 2006) ......................................................................... 21 Walker v. Senkowski, 260 A.D.2d 830(3d Dep’t 1999) .................................................................. 10-11 Weixel v. Bd. of Educ., 287 F.3d 138 (2d Cir. 2002) ......................................................................... 21 Wolff v. McDonnell, 418 U.S. 539 (1974) ..................................................................................... 5, 25-26 v Other Authorities N.Y. Civil Liberties Union, Boxed In: The True Cost of Extreme Isolation in New York’s Prisons 1 (2012) .................................................................... 23, 24 N.Y. Dep’t of Corr., Under Custody Report: Profile of Under Custody Population As of January 1, 2014 24 (2014). ............................................... 23 Reassessing Solitary Confinement: The Human Rights, Fiscal and Public Safety Consequences: Hearing Before the S. Judiciary Subcomm. on the Constitution, Civil Rights and Human Rights of the S. Comm. on the Judiciary, 112th Cong. 623 (2012) (statement of Physicians for Human Rights) ......................................................................................................... 24 Jonathan D. Rosenbloom, Exploring Methods to Improve Management and Fairness in Pro Se Cases: A Study of the Pro Se Docket in the Southern District of New York, 30 Fordham Urb. L.J. 305, 306 (2002) ....................... 20-21 David D. Siegel, New York Practice § 396 (5th ed. 2011) ............................ 13 QUESTIONS PRESENTED 1. When a prisoner facing a disciplinary hearing requests specific documents and witnesses to present in his defense, and does not demonstrate a clear intent to abandon his requests, has he preserved the ability to seek judicial review of the hearing officer’s denial of those requests? 2. In light of the constitutional right of prisoners to present documentary evidence and witnesses in their defense, is the ability to seek judicial review of the denial of that right preserved, absent a knowing, voluntary and intelligent waiver of the right? 3. Even if an issue was not specifically raised at the disciplinary hearing itself, does the objection to the violation of a prisoner’s right to present documentary evidence and witnesses that is presented at the administrative review phase, prior to Respondent-Appellee’s final determination, preserve the issue for judicial review? JURISDICTIONAL STATEMENT The Court of Appeals has jurisdiction over the present appeal pursuant to New York Civil Practice Law and Rules § 5602(a)(1)(i). This action originated in the Supreme Court, Albany County. Leave to appeal was sought from a final Memorandum and Order of the Appellate Division on September 12, 2014 and granted by the Court on November 12, 2014, pursuant to review under section 2 500.11 of the Court of Appeals Rules of Practice. The parties submitted their letter briefs pursuant Rule 500.11. In a letter issued on September 18, 2015, this Court “terminated its review of this appeal by the alternative procedure set forth in section 500.11 of the Court of Appeals Rules of Practice” and required the parties to “proceed in the normal course of briefing and argument.” (A-1). PRELIMINARY STATEMENT This case presents the Court with an opportunity to correct a misapplication of the law, urged by the State and accepted by the courts below, that would insulate prison disciplinary proceedings from judicial review by imposing on pro se inmates a rule of waiver that is harsher than, and contrary to, the standard rule applicable to parties represented by counsel in court. The State contends that when a party makes a request and the request is denied, the party has no right to seek judicial review of that denial unless it does something more: the party must go on to object to the denial of the request. This is not the rule in any context, and it certainly should not be the rule in the circumstances here: when inmates, without the assistance of counsel and often with limited language and cognitive abilities, are deprived of their constitutional right to present documentary evidence and witnesses in disciplinary proceedings that result in punishments as severe as years of solitary confinement. 3 In the proceeding from which this case arises, Petitioner-Appellant Jevon Henry was charged with participating in an assault on an inmate. In defending himself pro se (counsel not being provided in such hearings), Mr. Henry made requests for specific documents, including an incident report that made no mention of him as a participant, and for specific witnesses who would confirm he had no involvement with the group allegedly responsible for the attack. The hearing officer denied these requests. When the hearing officer asked if he understood the ruling, Mr. Henry politely acknowledged, “Yes sir.” (A-54). Mr. Henry never demonstrated any intent - let alone a clear intent - to abandon his requests. To the contrary, he reiterated that he was “objecting to the whole hearing.” (A-55, A-59). The hearing officer proceeded to find him guilty and sentenced him to two years of solitary confinement, in addition to other punishments. (A-64). The courts below never addressed whether the hearing officer’s denial of Mr. Henry’s requests was proper, because they accepted the State’s argument that Mr. Henry somehow waived this issue. The State’s theory appears to be that a party requesting relief must not only make the request, and have it denied; the party must go on to issue a formal objection to the denial of the request - saying something such as “I object to your ruling denying my request” - or else the issue is waived and thereby insulated from judicial review. 4 The State’s argument is wrong as a matter of law. Even in court proceedings in which parties are represented by counsel, appellate courts may review “any ruling . . . which was a refusal or failure to act as requested by the appellant.” N.Y. C.P.L.R. § 5501(a)(3) (McKinney 2015). All that is needed to raise and preserve an issue is that “a party shall make known the action which he requests the court to take.” N.Y. C.P.L.R. § 4017 (McKinney 2015). Indeed, the CPLR emphasizes that “[f]ormal exceptions to rulings of the court are unnecessary.” Id. As applied here, the hearing officer’s denial of Mr. Henry’s requests for certain documents and witnesses was “a refusal or failure to act as requested by the appellant.” By making his requests, Mr. Henry “ma[d]e known the action which he request[ed] the [hearing officer] to take.” And because “[f]ormal exceptions” to rulings are “unnecessary,” Mr. Henry plainly did not waive the right to seek judicial review of the denials of his requests. Even under the State’s flawed framework, there is no proper basis for finding a waiver here. What the State points to as purported support for its waiver argument reflects, at most, that Mr. Henry acknowledged the rulings - by saying “yes sir,” for example, when the hearing officer told Mr. Henry his requests were denied and then asked, “do you understand that?” (A-54, A-59). Mr. Henry’s polite acknowledgment was akin to a lawyer saying, “Understood, Your Honor,” when the judge overrules her objection or denies a request she makes. Such an 5 acknowledgement does not constitute a waiver of the issue; otherwise, lawyers’ polite acknowledgments of a judge’s adverse rulings would forfeit their client’s rights. That Mr. Henry did not intend a waiver is especially clear: after the hearing officer denied his specific requests for evidence to help his defense, Mr. Henry expressly stated his “object[ions] to the whole hearing.” (A-55, A-59). On the record here, therefore, Mr. Henry is entitled to seek judicial review of the rulings denying his requests for documents and witnesses. Three additional considerations further bolster this point. First, inmates in disciplinary proceedings are pro se, even though they face severe punishments, including years in solitary confinement. It is well established that “technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.” Love v. Pullman Co., 404 U.S. 522, 527 (1972). Courts should be especially reluctant to find a waiver of the right to obtain judicial review of the rulings in a disciplinary proceeding, especially in circumstances such as here where an inmate made specific requests and the hearing officer denied those requests. Second, an inmate’s right to call witnesses and present documentary evidence is constitutional. Wolff v. McDonnell, 418 U.S. 539, 566 (1974). A constitutional right may be forfeited only upon a knowing, voluntary and intelligent waiver that demonstrates “an intentional relinquishment of a known 6 right or privilege.” Doe v. Marsh, 105 F.3d 106, 111 (2d Cir. 1997) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). No such intentional relinquishment can be found on the record here. Third, if an issue not raised at the disciplinary hearing itself is raised during the administrative review, it should be available for judicial review. At the administrative review stage, the agency’s decision is not yet final and is subject to review and modification. This is also the first stage at which counsel can assist an inmate (and even at this stage only a small minority of inmates receive the benefit of counsel). Accordingly, an issue raised at this stage should be eligible for judicial review. In sum, this Court should reverse the decisions below that served to eliminate any judicial review in this matter. And, on review, the disciplinary findings here should be vacated in light of the denial of Mr. Henry’s constitutional right to call witnesses and present documentary evidence in his defense. STATEMENT OF FACTS Mr. Henry was charged with participating in an alleged assault of another inmate at the Greene Correctional Facility. (A-39). The incident allegedly involved several individuals who were part of a gang. Id. Mr. Henry pled not guilty to the charges and sought to establish that he was not involved in the incident; that he was nowhere near where it occurred but instead was in his cell; 7 and that he was not part of any gang and only associated with older gentlemen in the dorm (Mr. Henry was 30 years old at the time of this incident) and not with the younger men who were involved in the incident. (A-41-43, A-50-52). To support his defense, Mr. Henry requested several documents, including the Unusual Incident Report, the To/From Report, and the logbook, which records all inmate movement at the facility. (A-42). These documents were important to Mr. Henry’s defense, and Mr. Henry repeated his requests for them at least three times over the course of the days on which the hearing took place. (A- 42, A-44-46, A-54). The Unusual Incident Report, for example, described the incident, but did not suggest that Mr. Henry participated in it. The fact that Mr. Henry was not mentioned was itself exculpatory, and the report’s description of who was involved and what happened likely would have provided additional information helpful to his defense. If, for example, the report described the participants as significantly taller than the victim, and Mr. Henry was shorter than the victim, that would have powerfully supported his defense. On the final day of the hearing, the hearing officer told Mr. Henry that he was denying his requests. (A-54). The purported basis for denying the Unusual Incident Report was that it did not name Mr. Henry. Id. The purported basis for denying the To/From Report was that it was confidential. (A-59). And the hearing 8 officer stated that the logbook would not be provided because it had no description of the incident. (A-54). Thus, the documentary evidence would have been helpful to Mr. Henry’s defense, and certainly did not support the case against him. But the hearing officer denied all of Mr. Henry’s requests for the documents. Nothing in the record supports a conclusion that Mr. Henry demonstrated any intent to abandon or waive his requests for these documents. When the hearing officer merely asked Mr. Henry “do you understand” that the requests are denied, Mr. Henry replied, “Yes sir.” Id. Seconds later when the hearing officer asked, “Anything else Mr. Henry?” Mr. Henry stated “I’m objecting to the whole hearing.” (A-55). In addition, the hearing officer denied Mr. Henry’s request for several witnesses who were important to his defense. Mr. Henry requested to call as his witnesses two Correctional Officers and four inmates. (A-42-43, A-45). He was permitted to call inmate Emanuel Hilaire, who testified that when the incident occurred, Mr. Henry was already in his cube. (A-49). Mr. Henry also was permitted to call inmate Hogan as a witness. (A-50). Mr. Hogan testified that Mr. Henry was not near the incident and that Mr. Henry only associates with older gentlemen in the dorm, not the younger men who were involved in the incident. (A-51-52). Mr. Hogan also testified that he saw the man who did injure the inmate 9 during the incident and that it was not Mr. Henry. (A-51). Lastly, Mr. Henry was allowed to call Officer Lambertson. (A-52). He testified that he only vaguely remembered the incident and could not tell the hearing officer anything about it. Id. Officer Lambertson was also unable to answer Mr. Henry’s questions about whether he had observed Mr. Henry associate with any of the individuals involved in the incident or whether Mr. Henry was near the location of the incident when it occurred. (A-52-53). On the last day of the hearing, Mr. Henry reiterated his requests to call two other inmate witnesses and Officer Faulkner. (A-56). One of the inmates was allowed to testify. However, the hearing officer informed Mr. Henry that the other inmate, Mr. Kaufman, refused to testify. The hearing officer gave no explanation for Mr. Kaufman’s refusal. (A-58, A-72). Mr. Henry acknowledged the denial of this request, saying, “Alright.” (A-58). Next, the hearing officer denied Mr. Henry’s request to call Officer Faulkner as a witness, on the basis that his testimony would be redundant of Officer Lambertson’s. Id. However, as noted, Officer Lambertson testified that he was only “vaguely” familiar with the alleged incident, was unaware of whether Mr. Henry was involved, and was unable to say whether or not Mr. Henry associated with the individuals involved in the incident. (A-52-53). As a result, if Officer Faulkner had testified and provided answers to Mr. Henry’s questions, his testimony could have put the incident in context and 10 provided proof that Mr. Henry was not involved and did not associate with those who were involved - testimony that Officer Lambertson had been unable to provide. Id. Mr. Henry was not asked to respond to the denial of his request for Officer Faulkner as a witness, and he said nothing that could be construed as withdrawing his request. Further, immediately after the hearing officer denied Mr. Henry’s requests for witnesses and immediately before the hearing ended, Mr. Henry asked if he could be permitted to speak. (A-58). He then stated, “Officer Gutwein (inaudible) I’m not involved in this incident. I am objecting to the whole hearing. . . .” (A-59). As a result of the hearing officer’s denials of Mr. Henry’s requests for documents and witnesses, the hearing lasted barely an hour, spread out in short sessions over a number of days. 1 Immediately following the hearing, the hearing officer declared Mr. Henry guilty and sentenced him to two years in the Special Housing Unit - that is, solitary confinement. (A-64). 2 The hearing officer also 1 The elapsed time can be calculated based on the hearing officer’s statement of the time that each session begins and ends. 2 Mr. Henry completed the service of his sentence to solitary confinement in the Special Housing Unit, and he also has been discharged from custody on conditional parole. He of course continues to have a strong interest in correcting his disciplinary record and eliminating the serious offenses of which he was found guilty in the disciplinary hearing at issue here. See, e.g., Walker v. Senkowski, 260 11 punished him with recommended loss of two years of good time, and loss of packages, commissary and phone use for two years. Following administrative review, Mr. Henry filed an Article 78 petition to obtain judicial review of the disciplinary hearing, including the hearing officer’s denials of his requests for specific documents and witnesses. (A-92-106). The State argued that Mr. Henry had waived his right to judicial review, on the theory that it was not enough to make a request and have it denied, and that Mr. Henry had to go on to register an objection to the denial of each request. (A-31- 38). The Supreme Court agreed, granting the State’s motion to dismiss Mr. Henry’s Article 78 petition without affording any review of the merits of the hearing officer’s rulings, (A-24-28), and the Appellate Division affirmed. (A-15- 16). A.D.2d 830, 831(3d Dep’t 1999) (although former inmate had been released from custody, the court confirmed that “this issue cannot be considered moot as ‘petitioner is entitled to have an institutional record free from improperly obtained findings of disciplinary rule violations.’”) (citations omitted); see also Grant v. Senkowski, 146 A.D.2d 948, 949 (3d Dep’t 1989) (“Since petitioner’s prison disciplinary record might be considered by a future employer in reaching an employment decision, petitioner is entitled to have an institutional record free from improperly obtained findings of disciplinary rule violations.”). In addition, because of the time required for a matter like this to reach this Court, the issue presented here plainly is one that is capable of repetition yet evading review. See Coleman ex rel. Coleman v. Daines, 19 N.Y.3d 1087, 1090 (2012); Gross v. Henderson, 79 A.D.2d 1086, 1086-87 (4th Dep’t 1981). 12 ARGUMENT POINT I MR. HENRY DID NOT WAIVE HIS RIGHT TO JUDICIAL REVIEW OF THE HEARING OFFICER’S DENIAL OF HIS REQUESTS FOR DOCUMENTS AND WITNESSES When a party makes a request, it makes known to the court (or hearing officer) the relief it seeks, and the denial of that request therefore is subject to review on appeal. The State’s contrary argument depends on the premise that, to preserve an issue for review, it is not enough to request relief and receive a ruling denying that request. Rather, the party must also go on to state a formal exception to the ruling denying his request. But this simply is not the law. Nor should it be, especially in a circumstance like this, when inmates who receive no assistance of counsel are facing severe punishments such as solitary confinement. A. Even In Court Proceedings When Parties Are Represented By Counsel, The Making Of A Request Suffices To Preserve An Issue For Review It is black-letter law that appellate courts may review “any ruling . . . which was a refusal or failure to act requested by the appellant.” N.Y. C.P.L.R. § 5501(a)(3). The CPLR expressly emphasizes that “[f]ormal exceptions to rulings of the court are unnecessary.” N.Y. C.P.L.R. § 4017 (emphasis added). All that is 13 needed is that “a party shall make known the action which he requests the court to take.” Id. 3 Thus, “[w]hen a ruling is requested, the lawyer’s obligation is to make known the action she thinks the court should take . . . ; the combination of words that so apprises the court is secondary.” David D. Siegel, New York Practice § 396 (5th ed. 2011). As Professor Siegel explains, “[t]here is no requirement today to follow an unfavorable ruling with the word ‘exception’ or any other word or words to indicate displeasure. As long as the loser’s position on the point has been made known to the court, the unfavorable ruling is preserved for appellate review without the follow-up utterance of the pouty ‘exception’ at one time in favor.” Id. As applied here, Mr. Henry made a request for specific documents and witnesses, and the hearing officer denied those requests. He is entitled to seek appellate review of these denials, which were “a refusal or failure to act [as] requested by the appellant.” N.Y. C.P.L.R. § 5501(a)(3). His requests obviously were sufficient to “make known the action which he requests the [hearing officer] 3 The criminal procedure rule governing objections and preservation, N.Y. Crim. Proc.§ 470.05(2) (McKinney 2015), similarly provides for preservation by merely requesting a ruling: “In addition, a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court’s ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.” 14 to take.” N.Y. C.P.L.R. § 4017. And, contrary to the State’s argument, he did not have to go on to object to the denial of his requests, because “[f]ormal exceptions to rulings of the court are unnecessary.” Id. (emphasis added). See also, e.g., People v. Grice, 98 A.D.3d 755, 755 (3d Dep’t 2012) (“To preserve an issue for appeal, a specific objection or ‘exception’ is not mandated; rather, it ‘is sufficient if the party . . . either expressly or impliedly sought or requested a particular ruling’”) (citing N.Y. Crim. Proc. § 470.05; N.Y. C.P.L.R. § 4017); Mars Assocs., Inc. v. N.Y.C. Educ. Constr. Fund, 126 A.D.2d 178, 189 (1st Dep’t 1987) (party preserved for appeal its request that jury be asked to clarify its verdict, by requesting the relief and receiving ruling denying the request) (citing N.Y. C.P.L.R. §§ 4017, 5501(a)(3)). Indeed, some courts have reprimanded counsel for objecting to the denial of requests, on the basis that doing so is disruptive and is unnecessary to preserve the issue for appeal. See Roma v. Blaustein, 44 A.D.2d 576, 577 (2d Dep’t 1974). Given that such objections are not required of attorneys in court proceedings, they certainly should not be required of pro se inmates in less formal administrative hearings. Here, as set forth above, Mr. Henry made clear requests to call specific witnesses and obtain particular documentary evidence for his case. (A-42- 45, A-54, A-56, A-58). The hearing officer made rulings denying those requests. 15 (A-54-56, A-58-59). Mr. Henry was not and should not be required to say “I object” or “I except” in response to these denials. The fact that these requests were made and denied is sufficient to preserve for review whether the hearing officer’s rulings were proper. In arguing for waiver here, the State not only disregards established law, it also ignores the difference between two different circumstances: when (as here) a party makes a request that is denied, as opposed to when a party does not object to something done by the other party or the court. When a party makes a request, this suffices, in the words of the CPLR, to “make known the action which he requests the court to take.” N.Y. C.P.L.R. § 4017. By contrast, when something is done by the adversary or the court - if the adversary seeks to introduce an item of evidence, for example - then a party ordinarily needs to register an objection in order to “make known to the court” that it opposes its adversary’s action. But again, when a party makes a request, the request in itself makes known to the court the action which it seeks from the court. The CPLR captures these two different circumstances, providing that an appellate court may review “any ruling to which the appellant objected or had no opportunity to object or which was a refusal or failure to act as requested by the appellant.” N.Y. C.P.L.R. § 5501(a)(3) (emphasis added). The text before the word “or” refers to the circumstance in which a court makes a ruling (such as a 16 ruling requested by the adversary) and the party objects. And the text after the word “or” refers to the circumstance where a party makes a request that is denied, and thereafter seeks review of the “refusal or failure to act as requested by the appellant.” This Court’s decisions reflect the same distinction. The decisions cited by the State as purported support for its waiver argument, for example, do not involve an appellant seeking review of the denial of a request it made. Rather, they involve the adversary introducing an item of evidence, and thus the question was whether the appellant had registered a sufficient objection to the introduction of that evidence. See Gonzalez v. State Liquor Auth., 30 N.Y.2d 108, 112-13 (1972) (appellant sought to argue that evidence introduced at hearing by the state liquor authority should have been suppressed on constitutional grounds, but appellant had failed to make this objection at the hearing); New York v. Charada T., 23 N.Y.3d 355, 362 (2014) (appellant sought to argue that evidence introduced by the State should have been excluded on hearsay grounds, but failed to raise this objection at the hearing); Sowa v. Looney, 23 N.Y.2d 329, 333 (1968) (appellant failed to object at the administrative hearing to the introduction of a hearsay report, and thus the issue was not preserved for review). 17 B. Once A Request Has Been Made, The Issue Is Preserved Unless There Is A “Clear Intent” To Waive The Request By contrast, in cases involving a request, the Court has confirmed that the making of the request is itself sufficient to preserve for review a challenge to the denial of the request, unless there is a showing that the party “demonstrated a clear intent” to waive the request. In People v. Le Mieux, 51 N.Y.2d 981 (1980), for example, a party made a written request for a particular jury instruction. Id. at 982. The court subsequently presented counsel with its proposed jury charge, which omitted the requested instruction, and the party’s counsel did not specifically object to the exclusion of the requested instruction. Id. The State argued that the issue had been waived, but this Court disagreed, holding that the party that had requested the instruction had not “demonstrated a clear intent to waive” the request. Id. at 983. Similarly, in People v. Leisner, 73 N.Y.2d 140 (1989), where the issue was whether a party had preserved its right to appeal the denial of a requested instruction, the Court explained that “the only question is whether appellants ‘demonstrated a clear intent’ to abandon their request.” Id. at 148. Here, Mr. Henry plainly did not “demonstrate a clear intent” to waive his requests for specific documents and witnesses. As noted, after the hearing officer stated that he was denying the request for the Unusual Incident Report and To/From Report, he asked Mr. Henry, “[D]o you understand that?” Mr. Henry 18 politely replied, “Yes, sir.” (A-54). Mr. Henry manifestly did not demonstrate a clear intent to waive his requests. He was not asked whether he was now waiving his requests. Rather, he was asked only “do you understand” that the requests are being denied. His acknowledgment that he understood the requests were being denied does not constitute a withdrawal or waiver of the requests at all - let alone does it demonstrate a “clear intent” to do so. Similarly, the State argues that Mr. Henry waived his request for specific witnesses on the basis that, after the hearing officer denied one of these requests, Mr. Henry stated, “Alright.” Again, this was merely a polite acknowledgment that his request was being denied - akin to a lawyer at trial saying, “Understood, Your Honor,” after the judge denies her request or overrules her objection. It certainly does not demonstrate an intent to waive or withdraw the requested relief. Further, the “alright” comment followed only one of the hearing officer’s rulings, the denial of Mr. Henry’s request for inmate Kaufman. (A-58). Yet the State mistakenly told the Supreme Court that Mr. Henry had stated “alright” following both this ruling and the hearing officer’s denial of the request for Officer Faulkner. (A-35). The Supreme Court relied on this erroneous representation in granting the State’s motion to dismiss, stating: “Further, and more important to the instant motion, when petitioner was informed that his 19 request for this Officer [Faulkner] had been denied, he simply stated, ‘alright.’” (A-26). In fact, as the record confirms, Mr. Henry did not say “alright” or anything else that could possibly be construed as a waiver in response to the hearing officer’s denial of his request for Officer Faulkner. (A-58). That the State’s argument depends on parsing the record so finely and trying to discern an intent to waive based on words such as “Yes, sir” or “alright” may have led the State to err in representing the record and the Supreme Court to rely on that erroneous representation. This demonstrates that the State’s proposed framework is not only wrong as a matter of law, but also is unworkable and prone to error. Still further, Mr. Henry’s affirmative statements on the record dispel any doubt as to whether he intended to waive his requests and his rights. The record reflects that, following the hearing officer’s denial of his requests, Mr. Henry twice stated that he was “objecting to the whole hearing.” (A-54-55, A-59). Thus, while it is unnecessary, to use Professor Siegel’s words, “to follow an unfavorable ruling with the word ‘exception’ or any other word or words to indicate displeasure,” Mr. Henry explicitly did indicate his displeasure - and disagreement - with the hearing officer’s rulings and conduct of the hearing. On this record, therefore, it is impossible to find that Mr. Henry demonstrated a clear intent to waive his rights with respect to these requests. See, e.g., Garrett v. 20 Goord, 14 A.D.3d 826, 827 (3d Dep’t 2005) (petitioner preserved his right to challenge a prison rule as impermissibly vague where the petitioner “complained[] at every stage of [his] proceeding”); Escoto v. Goord, 9 A.D.3d 518, 519 (3d Dep’t 2004) (petitioner preserved issue by making general objection at the hearing after making requests to call witnesses and “allud[ing]” to the importance of the precluded witnesses). In sum, applying well-established law to the record here, there simply is no basis for a finding of waiver. The Court therefore can and should reverse the rulings below on this basis alone. C. Because Inmates Faced With Disciplinary Proceedings Are Pro Se, The Rules Of Waiver Should Be Less Severe As set forth above, even if Mr. Henry were being represented by counsel in court, there would be no basis for finding that he waived his right to seek review of the rulings denying his requests for documents and witnesses. But in fact Mr. Henry was pro se, because state regulations do not provide for attorneys to assist with a disciplinary hearing. The approach to waiver for inmates proceeding pro se should be less severe, such that a waiver would be found, if at all, only if the record establishes an unequivocal intent to waive. It is well known that “pro se litigants are almost unanimously ill equipped to encounter the complexities of the judicial system.” Jonathan D. Rosenbloom, Exploring Methods to Improve Management and Fairness in Pro Se 21 Cases: A Study of the Pro Se Docket in the Southern District of New York, 30 Fordham Urb. L.J. 305, 306 (2002). As a result, “[i]t is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (citation omitted) (emphasis in original); see also Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006); Forsyth v. Fed’n Employ’t & Guidance Serv., 409 F.3d 565, 569 (2d Cir. 2005); Sharpe v. Conole, 386 F.3d 482, 484 (2d Cir. 2004); Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003); Weixel v. Bd. of Educ., 287 F.3d 138, 145-46 (2d Cir. 2002). The “policy of liberally construing pro se submissions is driven by the understanding that ‘[i]mplicit in the right of self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.’” Triestman, 470 F.3d at 475 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)); see also Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994) (recognizing that pro se litigants must be accorded “special solicitude”). And as the Supreme Court has emphasized, “technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.” Love v. Pullman Co., 404 U.S. 522, 527 (1972). 22 Applied here, these principles make it even more clear that Mr. Henry should not be held to have waived his right to seek judicial review of the hearing officer’s rulings denying his requests for documents and witnesses. Mr. Henry made clear requests for specific documents and specific witnesses. The hearing officer denied those requests. Mr. Henry submits that the hearing officer’s rulings denying his requests were erroneous. But more fundamentally, for present purposes, Mr. Henry submits that he should be able to obtain judicial review of those rulings. The State’s argument, as applied here and potentially in the thousands of hearings to come that may involve similar circumstances, would serve to insulate such rulings from any judicial review whatsoever. That result would be wrong even in a court proceeding with parties represented by the ablest of attorneys. And it is certainly wrong here. The injustice of the harsh rule of waiver for which the State argues is magnified by the demographics of the prison population and the severity of the punishments that often are imposed as a result of disciplinary hearings. The New York state prison population is marked by low levels of education and literacy. As of January 2014, only 59% of New York state prisoners were documented as having graduated from high school and nearly a third of the population had a 23 reading capability at or below an 8 th grade level. 4 Further, mental health issues are common, with 16% of the New York state prison population classified in January 2014 by the Office of Mental Health as mental health level 1 through 4, which corresponds to a potential need for mental health treatment services. 5 The potential punishments imposed as a result of disciplinary hearings are severe. Many inmates, including Mr. Henry, are sentenced to long periods in solitary confinement. Years in solitary confinement can “exact a terrible price.” Davis v. Ayala, 135 S. Ct. 2187, 2210 (2015) (Kennedy, J., concurring); see also id. (citing Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol’y 325, 327 (2006), for its findings that “common side-effects of solitary confinement include anxiety, panic, withdrawal, hallucinations, self- mutilation, and suicidal thoughts and behaviors.”) Inmates housed in solitary confinement typically spend 23 hours a day in an isolation cell. 6 Solitary confinement often leads to “SHU syndrome,” which results in “social withdrawal; anxiety and nervousness; panic attacks; irrational 4 N.Y. Dep’t of Corr., Under Custody Report: Profile of Under Custody Population As of January 1, 2014 24 (2014), http://www.doccs.ny.gov/Research/Reports/2014/UnderCustody_Report_2014.pdf. 5 Id. at 25. 6 N.Y. Civil Liberties Union, Boxed In: The True Cost of Extreme Isolation in New York’s Prisons 1 (2012), http://www.nyclu.org/files/publications/nyclu_boxedin_FINAL.pdf (hereinafter Boxed In). 24 anger and rage; loss of impulse control; paranoia; hypersensitivity to external stimuli; severe and chronic depression; difficulties with thinking, concentration and memory; and perceptual distortions, illusions and hallucinations.” 7 Prolonged solitary confinement, defined as any stay over 15 days by the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is associated with “post-traumatic stress such as flashbacks, chronic hypervigilance, and hopelessness; and continued intolerance of social interaction after release.” 8 Moreover, the severe effects of solitary confinement often continue after an inmate’s release. 9 Again, Mr. Henry was sentenced to two years in solitary confinement as a result of the hearing at issue in this case. (A-64). Still further, the State’s proposed waiver regime poses a risk of promoting conflict, and potentially creating danger, by effectively requiring inmates to quarrel with hearing officers. Again, the standard rules of preservation provide that if a party makes a request and the request is denied, it can seek review of that denial. But the State seeks to require an inmate to do more than make a 7 Id. at 14. 8 Reassessing Solitary Confinement: The Human Rights, Fiscal and Public Safety Consequences: Hearing Before the S. Judiciary Subcomm. on the Constitution, Civil Rights and Human Rights of the S. Comm. on the Judiciary, 112th Cong. 623 (2012) (statement of Physicians for Human Rights), http://www.judiciary.senate.gov/imo/media/doc/CHRG-112shrg87630.pdf. 9 Id. at 624; see also Boxed In at 28 (“Virtually every prisoner who communicated with the NYCLU reported disturbing changes in themselves and in those around them. Many fear these changes are permanent.”). 25 request and, if denied, acknowledge the denial; the inmate would have to go on to tell the hearing officer that he disagrees with the officer’s ruling. Such a requirement ignores the balance of power in these circumstances, as well as the level of respect that inmates are expected to show to correctional officers. And such a requirement risks promoting further hostility. Again, there is no need for such a regime. As the CPLR and this Court’s precedents recognize, when a party makes a request and that request is denied, it is understood that the party disagrees with the denial; there is no reason to require the party to express his displeasure with the ruling. For all of these reasons, the rule urged by the State that serves to insulate prison disciplinary hearings from judicial review would be especially harmful and unjust. The approach to waiver in the circumstances here should, if anything, be less severe than in a courtroom setting where parties are represented by counsel. It certainly should not be more severe. POINT II ANY PURPORTED WAIVER OF MR. HENRY’S CONSTITUTIONAL RIGHT TO CALL WITNESSES AND REQUEST DOCUMENTS WAS NOT KNOWING, VOLUNTARY AND INTELLIGENT In defending himself against a disciplinary charge such as the one here, Mr. Henry has a constitutional right to request witnesses and documentary evidence. Wolff v. McDonnell, 418 U.S. 539, 566 (1974) (procedural due process 26 requires that an inmate facing disciplinary proceedings be allowed to call witnesses and present documentary evidence in his defense in the absence of overriding institutional safety or correctional goals). A constitutional right may be forfeited only upon a knowing, voluntary and intelligent waiver that demonstrates “an intentional relinquishment of a known right or privilege.” Doe v. Marsh, 105 F.3d 106,111 (2d Cir. 1997) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). To hold that Mr. Henry forfeited this constitutional right, therefore, it would not be enough to find merely that as a procedural matter he did not do what is ordinarily required to preserve an issue for review - though, again, Mr. Henry plainly did do what is required. Rather, a court would need to find not only that Mr. Henry waived his right to call witnesses and request documents, but that his doing so was knowing, voluntary and intelligent. In Johnson v. Coombe, for example, the Appellate Division rejected the State’s waiver argument on this basis: Respondents contend that because petitioner failed to reiterate his request for [two witnesses to be called to testify] or to object to their absence at the close of the hearing, petitioner waived his right to call them. We disagree. The constitutional right [to call witnesses] is not waivable unless it is shown that the [inmate] was informed of its existence and made a knowing and intelligent waiver. This showing has not been made here. 244 A.D.2d 664, 664 (3d Dep’t 1997) (citation omitted); see also Allen v. Goord, 14 A.D.3d 961, 962 (3d Dep’t 2005) (even where petitioner withdrew his request 27 for a correctional officer to testify, his waiver of the right to call a witness was not knowing and intelligent and therefore was not effective). Here, Mr. Henry never demonstrated any intention to waive his rights. Instead, he stated his requests for specific documents and witnesses repeatedly, and he also explained their importance to his defense. (A-42-46, A-54, A-56). Following the hearing officer’s denial of the requests, Mr. Henry registered his objection to the entire hearing. (A-55, A-A-59). Hence, there simply is no basis to find a knowing, voluntary and intelligent waiver of Mr. Henry’s constitutional right to call witnesses and request documents. Escoto v. Goord, 9 A.D.3d at 519- 20 (where petitioner requested a witness, was denied that request, again alluded to the importance of the witness’ testimony before the hearing adjourned and registered a general objection to the hearing, the petitioner had not knowingly and intelligently waived his right to call the witness). POINT III MR. HENRY PROPERLY RAISED AND PRESERVED HIS CHALLENGE TO THE DENIAL OF HIS REQUESTS FOR WITNESSES AND DOCUMENTS, BY RAISING THESE ISSUES DURING THE ADMINISTRATIVE REVIEW Even if the State could overcome the obstacles discussed above, its waiver argument should fail because Mr. Henry indisputably raised the matters at issue during the administrative review process, prior to the Respondent-Appellee’s final determination of the charges against him. (A-127-34, A-135-48). As the 28 Appellate Division has recognized in other cases, “lack of preservation that arises from the failure to raise an issue at a disciplinary hearing should be confined to those instances in which the Hearing Officer has the opportunity to correct the deficiency if so raised.” Morales v. Fischer, 89 A.D.3d 1346, 1346 (3d Dep’t 2011); see also Correnti v. Prack, 93 A.D.3d 970, 971 (3d Dep’t 2012). Here, the State contends that an inmate waives his right to further review unless, following the hearing officer’s denial of his requests, he states his objection to those rulings. As shown above, that argument is wrong and, in any event, is inapplicable to the facts here. But even apart from those failings, the State’s waiver argument would fail here because the State does not and cannot contend that the hearing officer would have corrected his erroneous rulings if Mr. Henry had reiterated (yet again) that he wished to obtain these documents and witnesses. Because there is no dispute that Mr. Henry raised these issues during the administrative review process, (A-127-34, A-135-48), they are thus preserved for appellate review. Moreover, one issue in particular should be available for judicial review even if not raised by an inmate at the hearing: the hearing officer’s failure to discharge his obligation, when a requested witness refuses to testify, to investigate, confirm and report the reasons for the refusal. In Barnes v. LeFevre, 69 N.Y.2d 649 (1986), this Court held that the failure to provide a witness based 29 on a hearsay report that the prisoner refused to testify, unsupported by a reason or any inquiry into the reason for the refusal, is a violation of the right to call witnesses. Lower courts have explained and confirmed the hearing officer’s duty to inquire into the reason for the refusal to testify. See, e.g., Silva v. Scully, 138 A.D.2d 717 (2d Dep’t 1988); Cordova v. Coughlin, 206 A.D.2d 475 (2d Dep’t 1994); Dawes v. Selsky, 239 A.D.2d 796 (3rd Dep’t 1997); Johnson v. Goord, 247 A.D.2d 801 (3rd Dep’t 1998); Moore v. Goord, 281 A.D.2d 736 (3rd Dep’t 2001); Robinson v. Fischer, 68 A.D.3d 1687 (3rd Dep’t 2009); Jamison v. Fischer, 78 A.D.3d 1466 (3rd Dep’t 2010); Moye v. Fischer, 93 A.D.3d 1006 (3rd Dep’t 2012). When a hearing officer fails to comply with this obligation, that failure should be available for judicial review, even if the particular issue is not raised by an inmate at the disciplinary hearing. To hold that this issue is waived unless an inmate in Mr. Henry’s position objects to the hearing officer’s failure to satisfy this obligation is unreasonable. This amounts to requiring inmates to be well-versed in nuanced points of administrative procedure and constitutional law, which, given the low education and literacy levels and mental health issues that characterize the prison population, is an unworkable and unachievable standard. Rather, the hearing officers responsible for managing these hearings, who are required to follow and trained to understand the constitutional and regulatory 30 requirements, should bear the burden of ensuring these legal obligations are complied with. Their failure to do so should not be insulated from judicial review merely because an inmate was unable to articulate the specific legal deficiency at the hearing itself. Here, Mr. Henry requested a fellow inmate, Mr. Kaufman, as a witness in his disciplinary hearing. However, the hearing officer simply reported that Mr. Kaufman refused to testify. The hearing officer gave no explanation for Mr. Kaufman’s refusal. (A-58, A-72). The hearing officer thus failed to satisfy the obligation under Barnes v. LeFevre to investigate, confirm and report the reasons for the requested witness’s refusal to testify. Because Mr. Henry raised this issue in the administrative review of the disciplinary hearing, the hearing officer’s failure to comply with this obligation should be eligible for judicial review. (A-127-34, A-135-48). CONCLUSION For the reasons set forth above and in his prior briefs and submissions, Mr. Henry respectfully requests that the Court reverse the Appellate Division’s decision affirming the dismissal of his Article 78 petition on the basis of waiver. Dated: New York, New York November 18, 2015 Respectfully submitted, CLEARY GOTTLIEB STEEN & HAMILTON LLP By: D~~cA ~(-(_~ David H. Herrington, Esq. Izukanne Emeagwali, Esq. Jessica Thompson, Esq. One Liberty Plaza New York, New York 10006 212-225-2000 dherrington@cgsh. com iemeagwali@cgsh.com j ethompson@cgsh.com MAIN STREET LEGAL SERVICES, INC. Donna H. Lee, Esq. 2 Court Square Long Island City, NY 111 01 718-340-4300 lee@mail.law.cuny.edu Attorneys for Petitioner-Appellant 31