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 Albany County Clerk’s Index No. 6386-2012 Court of Appeals State of New York 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. REPLY 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. Jessica Thompson, Esq. Bibeane Metsch, 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: April 29, 2016 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT ............................................................................................................. 4 POINT I: MR. HENRY WAS DENIED THE OPPORTUNITY TO ADEQUATELY DEFEND HIMSELF AND THEN DEPRIVED OF JUDICIAL REVIEW ....................................................................................... 4 POINT II: THE APPELLATE DIVISION ERRONEOUSLY HELD THAT MR. HENRY WAIVED THE RIGHT TO JUDICIAL REVIEW BECAUSE HE DID NOT OBJECT TO THE DENIALS OF HIS REQUESTS ..................................................................................................... 8 POINT III: THE STATE CANNOT AVOID REVERSAL WITH ITS NEW THEORY FOR DENYING JUDICIAL REVIEW ............................10 A. The State’s New Theory Does Not Address Preservation .............11 B. The Precedents The State Cites Do Not Support It .......................12 C. The State’s New Theory Would Not Help It Here ........................14 POINT IV: THE STATE’S ARGUMENT IS ESPECIALLY INAPPROPRIATE BECAUSE PRISONERS TYPICALLY PROCEED PRO SE, ARE OFTEN EDUCATIONALLY OR MENTALLY IMPAIRED, AND FACE SEVERE PUNISHMENTS SUCH AS SOLITARY CONFINEMENT ......................................................................17 POINT V: ANY PURPORTED WAIVER OF MR. HENRY’S CONSTITUTIONAL RIGHT TO CALL WITNESSES AND REQUEST DOCUMENTS WAS NOT KNOWING, VOLUNTARY AND INTELLIGENT ....................................................................................18 POINT VI: 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 ...........................................20 CONCLUSION ........................................................................................................23 ii TABLE OF AUTHORITIES Page Rules and Statutes N.Y. C.P.L.R. § 4017 (McKinney 2015) ........................................................ 1, 11 N.Y. C.P.L.R. § 5501(a)(3) (McKinney 2015) ............................................... 1, 11 Cases Allen v. Goord, 14 A.D.3d 961 (3d Dep’t 2005) ...................................................................... 19, 20 Barnes v. LeFevre, 69 N.Y.2d 649 (1986) ..................................................................................... 7, 8, 21 Bingham v. N.Y.C. Transit Auth.,, 99 N.Y.2d 355 (2003) ..................................................................................... 10 Cordova v. Coughlin, 206 A.D.2d 475 (2d Dep’t 1994) .................................................................... 21 Correnti v. Prack, 93 A.D.3d 970 (3d Dep’t 2012) ...................................................................... 20 Davis v. Ayala, 135 S. Ct. 2187 (2015) .................................................................................... 7 Dawes v. Selsky, 239 A.D.2d 796 (3rd Dep’t 1997) ................................................................... 21 Doe v. Marsh, 105 F.3d 106 (2d Cir. 1997) ............................................................................ 18, 19 Escoto v. Goord, 9 A.D.3d 518 (3d Dep’t 2004) ........................................................................ 19, 20 Herman v. Blum, 54 N.Y.2d 677 (1981) ..................................................................................... 12 Jamison v. Fischer, 78 A.D.3d 1466 (3rd Dep’t 2010) ................................................................... 21 iii Johnson v. Coombe, 244 A.D.2d 664 (3d Dep’t 1997) .................................................................... 19, 20 Johnson v. Goord, 247 A.D.2d 801 (3rd Dep’t 1998) ................................................................... 21 Mallard v. Dalsheim, 97 A.D.2d 545, 546 (2d Dep’t 1983) .............................................................. 16 Moore v. Goord, 281 A.D.2d 736 (3rd Dep’t 2001) ................................................................... 21 Morales v. Fischer, 89 A.D.3d 1346 (3d Dep’t 2011) .................................................................... 20 Moye v. Fischer, 93 A.D.3d 1006 (3rd Dep’t 2012) ................................................................... 21 People v. Tyler, 40 N.Y.2d 1065 (1976) ................................................................................... 13 Robinson v. Fischer, 68 A.D.3d 1687 (4th Dep’t 2009) ................................................................... 21 Silva v. Scully, 138 A.D.2d 717 (2d Dep’t 1988) .................................................................... 21 Sowa v. Looney, 23 N.Y.2d 329 (1968) ..................................................................................... 12 Watergate II Apts. v. Buffalo Sewer Auth., 6 N.Y.2d 52, 57 (1978) ................................................................................... 12 Wolff v. McDonnell, 418 U.S. 539 (1974) ........................................................................................ 18 PRELIMINARY STATEMENT In the prison disciplinary proceeding below, appellant Jevon Henry requested important documents and witnesses, including a report on the incident he was accused of participating in, a correction officer who would confirm he did not associate with the inmates involved, and a fellow inmate who would confirm he did not participate. But the hearing officer denied the requests. Then, following a hearing of roughly one hour in aggregate, Mr. Henry was found guilty and sentenced to two years of solitary confinement. When Mr. Henry sought judicial review of the denial of his requests for documents and witnesses, the State successfully blocked him by arguing he had forfeited any right of review. The State contended it was not enough to have requested a document or a witness and then have that request denied. Instead, the State argued, he had to specifically object to the denial of his requests. But 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 2 unnecessary.” Id. By making his requests, Mr. Henry “ma[d]e known the action which he request[ed] the [hearing officer] to take.” The hearing officer’s denial of these requests was “a refusal or failure to act as requested by the appellant.” 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. In this Court, remarkably, the State does not even try to defend the position it successfully urged below. The State now says it “is not arguing . . . that to preserve an article 78 challenge to a hearing officer’s ruling denying a requested document or witness, the inmate always must ‘state a formal exception to the ruling denying his request.’” Resp’t’s Br. at 11 (emphasis supplied). But this was exactly the position the State employed below to deprive Mr. Henry of judicial review. This is clear from the Appellate Division’s ruling. In the one sentence it devoted to this issue, it wrote: “Similarly unpreserved due to his failure to specifically object at the hearing are petitioner’s claims that he was improperly denied a witness, and that he was denied the right to present documentary evidence.” (A-16) (citations omitted). The Appellate Division thus ruled that Mr. Henry had forfeited the right to judicial review because he did not “specifically object” to the denial of his requests. Id. This is what the State had argued below, and what both the Appellate 3 Division and the Supreme Court ruled. See infra at Point II. The State’s abandonment of the ruling below should make reversal straightforward. The State cannot avoid reversal by seeking to rewrite what actually happened below. The State now suggests that “where the inmate specifies a reason for a request, or where the hearing officer makes clear a specific reason for denying a request, the inmate cannot later complain that the request was improperly denied for a different reason.” Resp’t’s Br. at 11 (emphasis supplied). But the Appellate Division did not engage in any review of the “reasons” for the requests or denials of requests; it held that Mr. Henry had no right to judicial review at all because he did not “specifically object” to the denials. The State’s new argument does not even address the question at issue: whether Mr. Henry preserved, or forfeited, a right to seek review on appeal. The State’s continued effort to block judicial review would be inappropriate in any circumstance, and is especially concerning in this context: when inmates, without the assistance of counsel and often with limited language and cognitive abilities, are deprived of the constitutional right to present documentary evidence and witnesses in disciplinary proceedings that result in punishments as severe as years of solitary confinement. Pet’r’s Br. at 2, 22-23; Amicus Curiae’s Br. at 3-4. For inmates no less than corporations represented by the ablest of counsel, the rule is simple - and important: a party preserves a right 4 to judicial review by making a request and receiving a ruling denying that request. The Court therefore should reverse the decision below and confirm that Mr. Henry should be afforded judicial review of the rulings denying his requests. 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. ARGUMENT POINT I MR. HENRY WAS DENIED THE OPPORTUNITY TO ADEQUATELY DEFEND HIMSELF AND THEN DEPRIVED OF JUDICIAL REVIEW Before turning to the State’s arguments, it is important to focus attention on what happened below. Mr. Henry was charged with participating in an alleged gang-related assault on an inmate. (A-39). He pled not guilty 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 cube; and that he was not part of any gang and only associated with older gentlemen in the dorm (he was 31 years old at the time) and not with the younger men who allegedly were part of a gang and participated in the incident. (A-41-43, A-50-52). To support his defense, Mr. Henry requested several documents, including reports on the incident he was accused of participating in. (A-42, A-44- 46, A-54). These descriptions of the incident were plainly relevant and potentially 5 helpful, but the hearing officer denied the requests for them. The hearing officer refused to provide the Unusual Incident Report, for example, because it made no mention of Mr. Henry as having participated in the assault. (A-54). That the Report nowhere mentioned Mr. Henry is of course exculpatory (and casts doubt on the subsequent finding of guilt), but it did not render the document irrelevant or justify the refusal to provide it. The Report could have been helpful in other ways, such as describing the participants in a manner that did not match Mr. Henry or providing information about the events leading up to the assault that would have helped exclude Mr. Henry as a participant. Mr. Henry never waived his request for these documents, but instead repeated the requests several times. (A-42, A-44-46, A-54). Mr. Henry also requested witnesses to establish that he had no involvement in the incident. He was permitted to call three inmates, who testified that Mr. Henry was not involved in the assault; that he was already in his cube at the time; and that he associated with “older” men like himself and did not associate with the younger individuals who allegedly were members of a gang and committed the assault. (A-49-52). In addition, Mr. Henry asked to call two correction officers who were responsible for the dorm in which he lived, in order to establish that he had no involvement with the alleged members of the gang responsible for the incident. 6 Given that the alleged offense was participating in a gang-related assault, the testimony of credible correction officers that Mr. Henry had no involvement with the gang would have been highly probative. But Mr. Henry was permitted to call only one correction officer, Officer Lambertson, who testified for a total of three minutes, via speakerphone. (A-52-53) (elapsed time from 11:45 to 11:48 a.m.). Officer Lambertson was asked whether Mr. Henry associated with any of the younger men who allegedly committed the assault and whether he was anywhere near the incident at the time. (A-53). In answering these questions, Officer Lambertson was noncommittal, testifying he was “vaguely” familiar with the incident but could provide no information about it. Id. Moreover, because of the odd manner in which the hearing officer formulated the questions (asking whether the officer was “aware as to whether” these facts were true), it is not entirely clear from the record whether Officer Lambertson confirmed that Mr. Henry did not associate with the individuals at issue and was not near the incident, or whether he had no knowledge either way. The hearing officer then denied Mr. Henry’s request for the other correction officer, Officer Faulkner, evidently assuming that if asked the same questions, Office Faulkner would give the exactly the same testimony as Officer Lambertson. But Officer Lambertson did not clearly testify about anything - his testimony was, at best, ambiguous. And permitting Mr. Henry to call Officer 7 Faulkner would have entailed minimal time and effort; it could have been conducted via speakerphone and completed in a matter of minutes. But the hearing officer refused. In addition, Mr. Henry was unable to present an inmate witness he had requested. The hearing officer reported that the witness had declined to testify but failed to discharge his obligation to investigate, confirm and report the reasons for the refusal. See Barnes v. LeFevre, 69 N.Y.2d 649 (1986). Immediately after the hearing ended, the hearing officer declared Mr. Henry guilty and sentenced him to two years in the Special Housing Unit - that is, solitary confinement. (A-64). The hearing officer also punished him with recommended loss of two years of good time, and loss of packages, commissary and phone use for two years. Despite the severity of the punishment - a sentence to two years in conditions known to “exact a terrible price,” Davis v. Ayala, 135 S. Ct. 2187, 2210 (2015) (Kennedy, J., concurring) - the hearing lasted little more than an hour. Mr. Henry’s request for the report on the incident had been denied, as was his request for the testimony of a correction officer who could have established that he had no involvement with the gang responsible for the assault. When Mr. Henry sought judicial review of these rulings, the State sought to block him by arguing it was not enough to have requested these documents and witnesses. Because Mr. Henry did not go on to object after the 8 hearing officer denied his requests, the State contended that he forfeited the right to judicial review - and the courts below agreed. This is the issue now before the Court. POINT II THE APPELLATE DIVISION ERRONEOUSLY HELD THAT MR. HENRY WAIVED THE RIGHT TO JUDICIAL REVIEW BECAUSE HE DID NOT OBJECT TO THE DENIALS OF HIS REQUESTS Contrary to what the State’s brief now suggests, the Appellate Division ruled that Mr. Henry forfeited the right to judicial review because he did not “specifically object” to the denial of his requests for documents and witnesses. (A-16). The Appellate Division’s opinion - which the State’s brief does not actually describe or quote - makes this clear. The opinion consists of only three substantive sentences, two of which addressed the hearing officer’s failure to discharge his obligation, when a requested inmate witness refuses to testify, to investigate, confirm and report the reasons for the refusal. See Barnes, 69 N.Y.2d. at 650. The Appellate Division stated that the hearing officer’s failure to meet his obligations under Barnes was “unpreserved for review” because Mr. Henry “did not raise this objection at the hearing.” (A-16) (citations omitted). This issue is discussed below in Point VI. The opinion’s next sentence addressed Mr. Henry’s attempt to challenge the hearing officer’s ruling denying his requests for particular documents 9 and witnesses. The Appellate Division stated: “Similarly unpreserved due to his failure to specifically object at the hearing are petitioner’s claims that he was improperly denied a witness, and that he was denied the right to present documentary evidence.” (A-16) (citations omitted). Thus, the Appellate Division held that even though Mr. Henry had requested these documents and witnesses and received a ruling denying his requests, he forfeited any right to judicial review because he did not “specifically object” to the rulings denying his requests. This is exactly what the State had asked the Appellate Division to rule: it argued that Mr. Henry had not made “objections in regards to his being denied documents or witnesses. Accordingly, [he] waived his right to judicial review regarding those issues.” Resp’t’s Br. at 7, Henry v. Fischer, Index No. 6386-12 (3d Dep’t Feb. 4, 2014) (“Exhibit A”) (attached). The State made the same argument and obtained the same ruling in the Supreme Court. Exhibit A at 6-7; (A-16). But as shown in Mr. Henry’s opening brief, the State’s argument and the Appellate Division’s adoption of that argument are simply wrong as a matter of law. It is well established that a party may seek review of any ruling that was a refusal or failure to act as it requested. Pet’r’s Br. at 4. In this Court, the State has abandoned the position it urged below. It now maintains that it “is not arguing . . . that to preserve an article 78 challenge to a hearing officer’s ruling denying a requested document or witness, the inmate 10 always must ‘state a formal exception to the ruling denying his request.’” Resp’t’s Br. at 11 (emphasis supplied). But this was precisely what the State had argued below, and what the Appellate Division adopted in its ruling against Mr. Henry. The State could not have succeeded in defending this erroneous argument here, and the fact that it does not even try to do so removes any doubt that the ruling below should be reversed. POINT III THE STATE CANNOT AVOID REVERSAL WITH ITS NEW THEORY FOR DENYING JUDICIAL REVIEW Having abandoned the basis for the Appellate Division’s ruling below, the State now seeks to offer a new theory for denying judicial review. As a threshold matter, the State cannot win affirmance and avoid reversal based on a theory that was not presented or considered, let alone adopted, in the courts below. See, e.g., Bingham v. N.Y.C. Transit Auth., 99 N.Y.2d 355, 359 (2003) (rejecting appellee’s attempt to raise new argument in the Court of Appeals and emphasizing that “this Court best serves the litigants and the law by limiting its review to issues that have first been presented to and carefully considered by the trial and intermediate appellate courts”). But even if the State’s new argument could be considered, it cannot provide a valid basis for blocking judicial review of the hearing officer’s rulings denying Mr. Henry’s requests for documents and witnesses. 11 A. The State’s New Theory Does Not Address Preservation As noted, the State now contends that “where the inmate specifies a reason for a request, or where the hearing officer makes clear a specific reason for denying a request, the inmate cannot later complain that the request was improperly denied for a different reason.” Resp’t’s Br. at 11. This argument does not address the preservation question at issue here - that is, whether Mr. Henry forfeited the right to seek any review of the rulings denying his requests. That the State’s new “reasons” theory does not define the standard for appellate preservation is reflected in the fact that, in the course of its argument, the State switches to a different formulation: it offers the uncontroversial proposition that “[t]o preserve a procedural claim for judicial review, litigants must generally present their claims to the agency at a time when any alleged deficiencies can be corrected.” Resp’t’s Brief at 12. This proposition, however, cannot help the State here. Mr. Henry did “present [his] claims to the agency” at the appropriate time: he made his requests for specific documents and witnesses at the hearing. In the words the CPLR uses to define when an issue is preserved for review, Mr. Henry did “make known the action which he request[ed] the [hearing officer] to take.” N.Y. C.P.L.R. § 4017. And because he is entitled to seek review of “any ruling . . . which was a refusal or failure to act requested by the appellant,” he is entitled to seek review of the hearing officer’s denials of his requests. Id. at § 5501(a)(3). 12 In the courts below, there was no suggestion that there was any ambiguity about what Mr. Henry had requested at the hearing, or that he somehow was seeking relief from the courts that was different from what he sought in the hearing. Mr. Henry requested specific documents and witnesses in the hearing. The hearing officer denied those requests. Mr. Henry now seeks appellate review of those denials, and he is entitled to that review. B. The Precedents The State Cites Do Not Support It The Court of Appeals precedents that the State cites simply do not support its argument. The State cites Watergate II Apartments v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57 (1978), which merely recites the uncontroversial principle that one who objects to the act of an administrative agency must exhaust available administrative remedies. Again, Mr. Henry did “exhaust” the available administrative remedies: he requested the documents and witnesses in the administrative hearing, and after those requests were denied, and he sought review of the denials through the available administrative review process. The State goes on to cite cases in which appellants sought to raise a new claim on appeal that had not been presented below. Herman v. Blum, 54 N.Y.2d 677 (1981) (petitioner could not raise on appeal the issue of whether evidence was sufficient to support finding, when it had failed to raise the issue at the hearing); Sowa v. Looney, 23 N.Y.2d 329, 333 (1968) (appellant failed to 13 object at the administrative hearing to the introduction of a hearsay report, and thus the issue was not preserved for review). That is not what happened here. Mr. Henry requested specific documents and witnesses, and the hearing officer denied those requests. Mr. Henry now seeks appellate review of those denials. He plainly is not seeking to raise a “new” issue that was not raised at the hearing. The State’s reference to People v. Tyler, 40 N.Y.2d 1065 (1976) is similarly inapposite. There, a criminal defendant subpoenaed to testify at trial a former co-defendant who had pleaded guilty. Id. at 1066. The witness asserted his privilege against self-incrimination and refused to testify, and the trial court, “without objection from defense counsel,” sustained the witness’s invocation of the privilege. Id. Then, on appeal, the defendant sought to raise for the first time that because the witness had previously pleaded guilty, it was error for the trial court to allow him to assert his privilege against self-incrimination. Id. The Court held that the defendant had not preserved this issue for appellate review, “[i]n view of the failure of defendant to object to the trial court’s recognition of the claim of privilege or otherwise then to raise any question as to the witness’ right to assert such privilege.” Id. Thus, the Tyler court simply held that a party could not raise a new issue on appeal (whether the co-defendant properly invoked the privilege against self-incrimination) that it had not raised below. Mr. Henry is not seeking to raise a 14 new issue here. At the hearing, he requested specific documents and witnesses, and the hearing officer denied those requests. He seeks appellate review of the denials of his requests. Unlike Tyler, this plainly does not involve a new issue being raised for the first time on appeal. C. The State’s New Theory Would Not Help It Here In addition to all the other fundamental problems with the State’s new theory, its theory would not help it here. The State contends that Mr. Henry should be denied judicial review because he purportedly is seeking to advance a new “reason” for his requests that is different from the “reason” presented at the hearing. This is factually and logically wrong. To take just one example, Mr. Henry requested the Unusual Incident Report, which as noted provided an account of the incident Mr. Henry was accused of participating in. The hearing officer denied the request, stating that Mr. Henry was not mentioned in the Report. The fact that the Report did not mention Mr. Henry was certainly exculpatory, but that did not somehow render the Report irrelevant, as it could have provided additional helpful information. Any information it provided about the details of the incident or the participants or the events leading up to it could have helped Mr. Henry establish his innocence. Thus, the fact that the Report did not mention Mr. Henry did not justify the refusal to provide it. At a minimum, Mr. Henry should be able to obtain appellate review of 15 the hearing officer’s ruling that because Mr. Henry was not mentioned in the Report, he had no right to receive it. Seeking to bar that review, the State suggests that the only “reason” for Mr. Henry’s request for the Report was to find out whether he was mentioned in it. And because he was told that he was not mentioned in it, he should be barred from seeking appellate review of the hearing officer’s refusal to provide the Report. This is baseless. There is no support for the suggestion that Mr. Henry requested the Report solely for the “reason” of finding out whether he was mentioned in it. If that had been his goal, he could have simply asked whether the Report mentioned him. But instead he requested the Report itself. There is nothing inconsistent about his seeking appellate review of the hearing officer’s denial of that request. Similarly, as to Officer Faulkner, the State argues that Mr. Henry should not be able to seek review of the hearing officer’s denial of his request for Officer Faulkner because Mr. Henry indicated that he intended to ask Officer Faulkner the same questions that he asked Officer Lambertson. As discussed, Mr. Henry was seeking to establish through credible correction officer witnesses that he had no involvement with the gang members allegedly responsible for the assault, which would have been highly probative and helpful to his defense. 16 In seeking appellate review of the hearing officer’s denial of his request for Officer Faulkner, there is nothing inconsistent with the reasons for Mr. Henry’s request for Officer Faulkner at the hearing. Taking Officer Faulkner’s testimony would have entailed minimal time and effort; as with Officer Lambertson, it could have been done via speakerphone and completed in minutes. (A-52-53) (Officer Lambertson’s testimony took only three minutes). That Mr. Henry intended to ask the same basic questions as he asked Officer Lambertson does not mean the testimony would necessarily be the same, especially in light of the ambiguities in Officer Lambertson’s testimony and Officer Lambertson’s inability to provide any information whatsoever about the incident, as discussed above. Thus, if Officer Faulkner had been able to provide any specific information, his testimony would not have been redundant. And even if it were assumed that Officer Lambertson’s testimony was favorable and Officer Faulkner’s testimony would also be favorable, Mr. Henry had a valid basis for calling Officer Faulkner in light of the importance of the testimony and the severity of the charge and punishment Mr. Henry was facing. At a minimum, Mr. Henry should have been able to obtain appellate review of the denial of his request for Officer Faulkner. 1 1 The State’s brief suggests for the first time that Mr. Henry failed to exhaust his administrative remedies as to the request for Officer Faulkner by not raising the issue in the petition for administrative review. Apart from the merits of this issue, 17 Thus, even on its own terms, the State’s new “reasons” argument would not help it. But, again, this new argument cannot help the State because it has nothing to do with what actually happened below. The Appellate Division, like the Supreme Court, denied Mr. Henry judicial review on the theory that it was not enough to make a request and have it denied, but instead he also should have gone on to object to the denial. That is the ruling before the Court. And that ruling was erroneous, as the State itself implicitly concedes in declining to defend it. POINT IV THE STATE’S ARGUMENT IS ESPECIALLY INAPPROPRIATE BECAUSE PRISONERS TYPICALLY PROCEED PRO SE, ARE OFTEN EDUCATIONALLY OR MENTALLY IMPAIRED, AND FACE SEVERE PUNISHMENTS SUCH AS SOLITARY CONFINEMENT The State’s arguments ignore facts that make its waiver argument even more inappropriate in light of the circumstances here: the fact that Mr. Henry and others like him must defend themselves pro se against serious charges with severe punishments because state regulations do not provide for attorneys to assist with disciplinary hearings; the fact that inmates often are mentally impaired or lacking in education and basic language skills; and the fact that, as with Mr. Henry, inmates face punishments as severe as several years in solitary confinement. Mr. administrative exhaustion is an affirmative defense that must be pleaded in an answer or motion to dismiss. See, e.g., Mallard v. Dalsheim, 97 A.D.2d 545, 546 (2d Dep’t 1983) (exhaustion defense waived because respondent failed to raise it in its answer). Because the State did not raise this issue in motion to dismiss (or indeed any other time below), it is barred. 18 Henry’s brief set forth these facts at length. Pet’r’s Br. at 20-24. But the State simply ignores these considerations entirely. Instead, the State seeks to impose on these pro se petitioners a highly technical, severe and convoluted regime designed to forfeit their rights to judicial review. The State’s proposed regime would be harsh and inappropriate if applied to corporations and other parties represented by counsel. It would be even more improper to apply it in the circumstances here. POINT V ANY PURPORTED WAIVER OF MR. HENRY’S CONSTITUTIONAL RIGHT TO CALL WITNESSES AND REQUEST DOCUMENTS WAS NOT KNOWING, VOLUNTARY AND INTELLIGENT An inmate defending himself against a disciplinary charge such as the one here has a constitutional right to request witnesses and documentary evidence. Wolff v. McDonnell, 418 U.S. 539, 566 (1974). That 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)). There plainly was no such waiver here. Seeking to evade this issue, the State suggests that Mr. Henry exercised his constitutional rights by requesting documents and witnesses, but that he then somehow waived these rights. Resp’t’s Br. at 13. The State misses the point. It is not a question whether Mr. Henry exercised his constitutional right to 19 request documents and witnesses; he clearly did. The question is whether he subsequently made a knowing, voluntary and intelligent waiver of those requests. As to that question, the answer is plainly no. The State does not even contend that Mr. Henry made a knowing, voluntary and intelligent waiver of his right to obtain documents and witnesses. At most, the State suggests that he “acquiesced” in the denial of his requests because he did not go on to make an objection after the hearing officer denied his requests. Mr. Henry in fact did not “acquiesce” in the denial of his requests, but in any event a constitutional right is not waived by mere acquiescence; there must be a knowing, voluntary and intelligent waiver - “an intentional relinquishment . . . of a known right or privilege.” Doe, 105 F.3d at 111 (quoting Zerbst, 304 U.S. at 464); see also Escoto v. Goord, 9 A.D.3d 518, 519-20 (3rd Dep’t 2004) (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); Johnson v. Coombe, 244 A.D.2d 664, 664 (3d Dep’t 1997) (citation omitted) (“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.”); Allen v. Goord, 14 A.D.3d 961, 962 (3d Dep’t 2005) (even where petitioner withdrew his request for a correction officer to 20 testify, his waiver of the right to call a witness was not knowing and intelligent and therefore was not effective). It is undisputed that there was no such intentional waiver here. In fact, Mr. Henry never waived his requests, or acquiesced in their denial, at all. To the contrary, he repeated his requests for specific documents and witnesses several times. (A-42-46, A-54, A-56). When the hearing officer denied his requests and asked him to confirm he understood the requests were being denied, he merely acknowledged that fact. He did not acquiesce in the denials. Indeed, following the hearing officer’s denial of the requests, Mr. Henry registered his objection to the entire hearing. (A-55, 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; Johnson v. Coombe, 244 A.D.2d at 664; Allen v. Goord, 14 A.D.3d at 962. POINT VI 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 Mr. Henry indisputably raised the matters at issue here 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 Appellate Division has recognized, “lack of preservation that arises from the 21 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). As set forth in Mr. Henry’s opening brief, 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, 650 (1986), this Court held that the failure to provide a witness based 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 (3d Dep’t 1997); Johnson v. Goord, 247 A.D.2d 801 (3d Dep’t 1998); Moore v. Goord, 281 A.D.2d 736 (3d Dep’t 2001); Robinson v. Fischer, 68 A.D.3d 1687 (4th Dep’t 2009); Jamison v. Fischer, 78 A.D.3d 1466 (3d Dep’t 2010); Moye v. Fischer, 93 A.D.3d 1006 (3d Dep’t 2012). 22 Here, the hearing officer indisputably failed to meet this obligation. 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, without investigating or providing any explanation for Mr. Kaufman’s refusal. (A-58, A-72). The hearing officer thus failed to satisfy his obligation under Barnes v. LeFevre. But the Appellate Division’s decision here effectively eviscerates this obligation. It held that unless the petitioner objects to the hearing officer’s failure to meet his obligation under Barnes, the issue is waived. (A-15- 16). This means a hearing officer can ignore the Barnes obligation with impunity, and wait to see if the inmate - who is pro se and in many instances educationally or mentally impaired - happens to know of this rule of law and invokes it. This is unreasonable. The hearing officers responsible for managing these hearings, who are required to follow and trained to understand the constitutional and regulatory requirements, should bear the burden of ensuring compliance with these legal obligations. 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. Accordingly, 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-132, A-137-38).
