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POWELL v. WARD

April 12, 1983

ELIZABETH POWELL, ET AL., Plaintiffs,
v.
BENJAMIN WARD, ET AL., Defendants



The opinion of the court was delivered by: STEWART

MEMORANDUM DECISION

 STEWART, District Judge:

 On January 10, 1983, Special Master Linda R. Singer submitted her Fourth Report on defendants' compliance with the court's orders concerning disciplinary proceedings at the Bedford Hills Correctional Facility. We now consider the responses and objections to this report we have received from both plaintiffs and defendants in this case.

 Witnesses

 Our 1975 Order, affirmed as modified in Powell v. Ward, 542 F.2d 101 (2d Cir. 1976) ("the 1975 Order") provided:

 
An inmate shall be permitted to call witnesses on her behalf provided that so doing does not jeopardize institutional safety or correctional goals. The written notice of the charge . . . shall inform the inmate of her right to call witnesses. The witnesses called shall be allowed to testify at the hearing in the presence of the inmate unless the hearing officer determines that this will jeopardize institutional safety or correctional goals. If an inmate is not permitted to have witnesses present, the witness may be interviewed out of the presence of the inmate and such interview recorded. The record of the witnesses' statement is to be made available to the inmate at the hearing unless the hearing officer determines that so doing would jeopardize institutional safety or correctional goals. Whenever a witness is refused an inmate or the record of a witness' statement is refused an inmate, a written explanation of such denials must be furnished to the inmate. If an inmate requests a number of witnesses, and the hearing officer determines that some of these witnesses are cumulative, those witnesses may be excluded on that ground.

 In her Fourth Report, the Special Master found that the defendants' disciplinary system "lacks a mechanism for ensuring that inmates receive adequate reasons for denial of witnesses." Fourth Report at 32. The defendants object to this finding. The Special Master's conclusion was based upon her findings that:

 
1. in one of the two cases in which a hearing officer refused to call a witness requested by an inmate, the hearing officer stated only that the witness "could offer no testimony relevant to the charges";
 
2. in the one case in which a witness' testimony was heard outside the presence of the inmate, the Form PC-6 *fn1" that accompanied the hearing report explained only that this was "due to the fact that [the testimony] could possibly jeopardize the well-being of the other inmates"; and
 
3. in another case, the hearing report indicated that two hearing officers had been requested to testify, but did not because they were "not available". The report did not indicate, however, whether the officers had been requested by the inmate or the hearing officer and did not attach a Form PC-6 (as would have been required by the defendants' regulations had the inmate made the request).

 Fourth Report at 6-8.

 As to the first point, the Special Master notes that irrelevancy is not among the reasons permitted by the Order for refusing to call a witness. The defendants argue, however, that "correctional goals are compromised when inmates feel at liberty to demand -- and obtain -- testimony of persons who have no connection with a pending disciplinary case". Defendants' Response and Objections to the Fourth Report of the Special Master ("Defendants' Response") at 3. We agree with the defendants that the calling of witnesses who can offer no relevant testimony may be contrary to correctional goals. We believe, however, that the better practice -- particularly during this period in which defendants have the burden of establishing their compliance with the 1975 Order -- would be for hearing officers to include in their denials of witnesses requested by inmates a statement of the facts upon which they base their conclusion of irrelevancy. This statement should include a summary of the inmate's offer of proof, and the reasons the offer is rejected. With this information, the inmate, the Special Master and this court will be able to verify that the reason the witness has been denied is valid under the 1975 Order.

 As the Special Master deemed the explanation given in the second case "barely adequate", the defendants made no argument in response. With regard to the third case, the defendants state "assuming arguendo that the two correction officers . . . were in fact called as witnesses by the inmate, . . . the failure to attach the PC-6 form [was not] of such magnitude to warrant the conclusion that the mechanism of providing adequate explanations for denial of witnesses is deficient". Defendants' Response at 3. Normally, of course, a single error of this nature out of the total of almost 700 hearings conducted would not be a cause for concern. However, to evaluate the effectiveness of defendants' system, we must view this error not only in the context of total hearings conducted, but also in the context of the number of hearings in which use of defendants PC-6 form was appropriate (i.e., 3). One error in three cases is of some significance. The small number of cases involved does not permit a determination as to whether the defendants' system is ultimately effective or deficient. Given that defendants have experienced some problems in those small number of cases, however, we approve the Special Master's conclusion that further monitoring in this area is appropriate.

 The plaintiffs object to two findings by the Special Master in the area of witnesses: her finding that it is proper to deny an inmate's request for a facility employee witness due to that witness' vacation schedule, and the finding that the explanation given L. Burns on her Form PC-6 for denial of access to testimony was sufficient. The Fourth Report does not indicate what efforts, if any, the defendants made to obtain the testimony of the vacationing witness nor what effects extra efforts might have upon the institution. We thus order the Special Master to make further findings in this area so as to allow a determination of whether denial of testimony because a witness is on vacation is consistent with correctional goals or not. As for the explanation given L. Burns for the taking of testimony outside her presence (viz., "due to ...


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