Matter of Dallio v Goord
Annotate this CaseDecided on March 29, 2005
Supreme Court, Franklin County
In the Matter of the Application of THOMAS DALLIO, No.88-T-2364, Petitioner, For a Judgment Pursuant to Article 78 Of the Civil Practice Laws and Rules
against
GLENN S. GOORD, Commissioner, Respondent.
2004-0584
S. Peter Feldstein, J.
This is a proceeding pursuant to Article 78 of the CPLR that was originated by the petition of Thomas Dallio, verified on June 15, 2004, and stamped as filed in the Franklin County Clerk's office on July 13, 2004. Petitioner, who is an inmate at the Upstate Correctional Facility, is challenging the final results of an inmate grievance proceeding (UST #17070-03) as set forth in the March 17, 2004, decision of the Inmate Grievance Program Central Office Review Committee (CORC). The underlying grievance involves the alleged sexual harassment of the petitioner by a particular corrections officer. The Court issued an Order to Show Cause on July 19, 2004, an Amended Order to Show Cause on August 5, 2004, and a Second Amended Order to Show Cause on August 13, 2004. The Court has received and reviewed respondent's Answer and Return, including in camera materials and an in camera exhibit, verified on September 3, 2004, as well as respondent's Letter Memorandum of September 3, 2004. The petitioner then sought an order of the Court directing the respondent to produce a transcript of the testimony of Inmate Gillette at petitioner's Tier III Superintendent's Hearing of September 11, 2003. According to the petitioner, Inmate Gillette's testimony confirmed the alleged sexual harassment of the petitioner. By Letter Order dated October 7, 2004, the Court denied petitioner's request that the hearing transcript be produced. By letter dated October 25, 2004, the petitioner requested that the Court reconsider its Letter Order of October 7, 2004. By Decision and Order dated January 20, 2005, the petitioner's request for reconsideration was denied. For the reasons stated in that Decision and Order, the Court finds that petitioner's additional application for reconsideration, received in chambers on February 22, 2005, must also be denied. In the meantime, the petitioner filed his Reply to the respondent's Answer and Return in the Franklin County Clerk's office on November 23, 2004.
On September 8, 2003, the petitioner filed a grievance complaint alleging that on September 1, 2003, he was sexually harassed by a particular corrections officer who allegedly propositioned the petitioner in vulgar terms. The petitioner identified three potential inmate witnesses to the incident in question (Youmans, Cruz and "Gillette 98-R-2849"). In addition, the petitioner's inmate grievance complaint identified two other inmate [*2]witnesses with respect to other alleged instances of sexual harassment by the same corrections officer (Dunsmore and "Montenez 01-A-6017"). In addition, the inmate grievance alleges that on July 2, 2003, Corrections Counselor Barbara Cronin interviewed three inmate witnesses (Brown, 91-A-9658, Smith, 96-A-3552 and Edwards, 99-A-0650) each of whom allegedly stated, in writing, that the corrections officer in question had been sexually harassing the petitioner. By decision dated February 6, 2004, the Superintendent of the Upstate Correctional Facility found ". . . no evidence to substantiate the allegations contained in this [petitioner's] complaint." While the Superintendent's decision made reference to an investigative interview of the petitioner as well as written statements submitted by DOCS employees identified in petitioner's inmate grievance complaint, the Superintendent's decision made no reference to any interviews of, or written statements submitted by, the various potential inmate witnesses identified by the petitioner. By decision dated March 17, 2004, the Inmate Grievance Program Central Office Review Committee (CORC) upheld the determination of the facility Superintendent for the reasons stated by the Superintendent. In its March 17, 2004, decision the CORC noted ". . . that the grievant's witnesses, Y [presumably Youmans], C [presumably Cruz] and D [presumably Dunsmore], were interviewed, however the grievant's allegations remain unsubstantiated. It is further noted that inmates G [presumably Gillette] and M [presumably Montanez] could not be identified by name or DIN number." The CORC decision, it is noted, makes no reference to the written statements allegedly given by inmates Brown, Smith and Edwards to correction counselor Cronin on July 2, 2003. It is the petitioner's contention, as set forth in paragraph 17 of his petition, that "Commissioner Goord and CORC neglected their duty to ascertain all of the facts and to conduct the required investigation in order to learn the truth about . . . sexual harassment and the facility's attempt to cover up by falsifying the investigation . . ."
"Allegations of employee harassment are of particular concern to the administrators of department facilities." 7 NYCRR §701.11. "Employee misconduct meant to annoy, intimidate or harm an inmate constitutes harassment." 7 NYCRR §701.11(a). Under the expedited procedures established by regulation for the review of inmate grievances alleging employee harassment, the facility superintendent, or his designee, must promptly determine whether or not allegations set forth in an inmate grievance complaint, if true, would represent a bona fide case of harassment. If not, then the inmate grievance complaint in question is returned to the Inmate Grievance Resolution Committee for ordinary processing. 7 NYCRR §701.11(b)(3). If, however, the superintendent or his designee determines that a bona fide harassment issue has been presented, he or she must either initiate an in-house investigation by higher ranking supervisory personnel or request an investigation by the inspector general's office or, if appropriate, the New York State Police Bureau of Criminal Investigation. 7 NYCRR §701.11(b)(4). In the case at bar the Court is not clear whether petitioner's grievance was ultimately processed in the ordinary fashion or, rather, as a bona fide harassment issue. The Court finds, however, that if the petitioner's inmate grievance complaint was not treated as raising a bona fide harassment issue it clearly should have been, since the allegations set forth in the complaint, if true, would undoubtedly met the DOCS standard of harassment set forth in 7 NYCRR §701.11(a), as quoted above. In any event, this Court has previously found that an inmate in a situation like the petitioner is entitled to "a thorough, meaningful [*3]investigation" into the allegations set forth in his or her grievance complaint. See Cliff v. Central Office Review Committee (Supreme Court, Clinton County, June 11, 1999, RJI #98-0782.080). For the reasons set forth below, however, the Court finds that the in-house investigation conducted in the case at bar did not rise to that level.
Without going into specific details of the investigative materials that were supplied to the Court as in camera exhibits, the Court finds nothing in those exhibits, or any other papers before the Court for that matter, to establish that a serious, good faith effort was made to contact and interview inmates Gillette and/or Montanez. While it does appear that the inmate grievance complaint stated an incorrect DIN number for inmate Gillette and, furthermore, was perhaps not clear in designating the name of inmate Montanez (or Montana ?) (01-A-6017), the in camera investigative report merely indicated that "Gillette 98-R-2849 and Montana #01-A-6017 were wrong DIN numbers and I was unable to locate them." There is no indication that the investigating officer went back to the petitioner in an attempt to clarify any discrepancies between the names of the two potential inmate witnesses and their DIN numbers. Indeed, the investigative report utterly fails to document the specific efforts that were made, if any, to identify and locate these two potential witnesses. Given the technological and other resources presumably at the disposal of the Department of Correctional Services the Court is simply unable to comprehend how any serious, meaningful effort to locate the two potential inmates in question could have been unsuccessful. In addition, the Court notes that there is nothing in the investigative reports to indicate that Corrections Counselor Cronin was contacted with respect to the three inmates (Brown, Smith and Edwards) who allegedly provided her with written statements regarding the alleged prior sexual harassment of the petitioner by the correction officer in question.
Based upon all of the above, it is, therefore, the decision of the Court and it is hereby
ADJUDGED, that the petition is granted, without costs or disbursements, but only to the extent that the results of petitioner's inmate grievance proceeding are vacated and the matter remanded to the Superintendent of the Upstate Correctional Facility, with a direction to re-process petitioner's inmate grievance complaint in a manner not inconsistent with this Decision and Judgment.
Dated:March , 2005 at
Indian Lake, New York. __________________________
S. Peter Feldstein
Acting Supreme Court Justice
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