Advocacy by the Ithaca Office staff leads to the release of two individuals

Jamie A., an inmate at Cayuga C.F. contacted the Ithaca Office of PLS because he was being confined as a result of illegally imposed post release supervision.  If the post release supervision was eliminated from his sentence, Mr. A. would be entitled to immediate release.  After some investigation, we determined that four months ago, a letter had been sent to the court asking the court if it wanted to resentence Mr. A. The court had not answered. The Division of Parole agreed that based on these circumstances, Mr. A.’s sentence should be recalculated and that he was entitled to immediate release. Mr. A. was released within a week of when we received his letter.

Irwin J. wrote PLS that the Division of Parole had inexplicably changed his parole jail time credit from 147 days to 42 days.  When we contacted the Division of Parole, the parole jail credit of 147 days was reinstated and Mr. J was released from prison two days after we received his letter requesting our assistance.
 

PLS Obtains Reversal in Federal Court Appeal of Prisoner Retaliation Claim

On October 27, 2006 PLS filed on behalf of prisoner Kerry Kotler a retaliation claim in the United States District Court for the Northern District of New York.  The case seeks compensatory and punitive damages, as well as certain injunctive relief, for adverse actions defendants are alleged to have taken against Mr. Kotler in November 2003 in retaliation for his good faith participation in and utilization of the Inmate Grievance Program at Bare Hill Correctional Facility in Malone, New York.  Plaintiff Kotler maintains that defendants set him up with a weapon and then fabricated and upheld a false disciplinary charge against him, in retaliation for his grievance activities, to punish and harm him for those activities, and to obtain his removal (through an impeachment proceeding) as an elected inmate representative on the facility Inmate Grievance Resolution Committee (IGRC).  As a result of defendants’ actions, plaintiff was ordered confined to the Special Housing Unit (SHU) for twelve (12) months, with loss of all privileges, along with a recommended loss of twelve (12) months of good time.  Upon administrative appeal these periods were modified to periods of six (6) months.  Plaintiff was also impeached and removed from the IGRC and banned from participating in an IGRC for a period of three (3) years.

Following discovery in the case, defendants filed a motion for summary judgment on May 6, 2008.  After extensive briefing in opposition to the motion and consideration by the court of the parties’ arguments, on September 16, 2009, presiding judge Norman Mordue, Chief Judge of the Northern District, issued a decision granting defendants’ motion and dismissed all of Kotler’s claims against all of the defendants.   

PLS took an appeal with the United States Court of Appeals for the Second Circuit, challenging Judge Mordue’s decision.  Following briefing by the parties, oral argument was held before the Court on June 15, 2010.  On June 24 the Court issued a decision summarily granting the appeal, ordering the judgment below vacated and the matter remanded to the District Court for further proceedings.
 

PLS Attorney Keynote Speaker at Greene Correctional Facility

Gavin Cook, a staff attorney in the Albany office of PLS, was the keynote speaker at the GED Graduation and Awards ceremony at Greene Correctional Facility. Mr. Cook spoke to the graduating inmates about the value and importance of education throughout the course of an individual’s life.

Court of Appeals Issues Decision in Hep. C Case

On July 1, 2010, the Court of Appeals issued a 4-3 affirmance in the case of Wooley v. New York State Department of Correctional Services. The issue before the court was whether DOCS’ denial of certain medical treatment to a prisoner was arbitrary and capricious or violative of his Eighth Amendment right to be free from cruel and unusual punishment.  The Court found that it was neither. 

Between 2002 and 2006 Mr. Wooley was examined by five doctors all of whom recommended that he receive maintenance therapy with pegylated interferon.  Despite these recommendations, DOCS denied the request to place Mr. Wooley on low-dose therapy stating that the treatment Mr. Wooley sought was “unproven in long-term studies and not yet approved by the FDA.”  After exhausting his administrative remedies, Mr. Wooley sued.

Regardless of the fact that there were five doctors who provided DOCS with the same recommendation for a course of treatment, the Court found that DOCS actions were not arbitrary and capricious because DOCS had a rational basis for denying the therapy. The Court was swayed by the fact that DOCS’ denial of the treatment was based on the ground that “  ‘no published studies support[ed] the[e] idea’ and that it was therefore ‘experimental.’” 

With respect to Mr. Wooley’s argument that the denial of treatment was deliberately indifferent to his medical needs and thus a violation of the Eight Amendment, the Court found that DOCS’ decision to withhold the recommended treatment was “neither objectively unreasonable nor made with subjective recklessness.”

Judge Smith, with whom Judges Lippman and Jones concurred, dissented finding that the record failed to demonstrate any rational basis for DOCS to provide the recommended treatment. Judge Jones noted that DOCS’ attempted to justify its position by arguing that it did not want prisoners to be subjected to ‘experimental treatment.’ But, noted Judge Jones,  the purpose of such a policy  is “to prevent inmates from being used as guinea pigs in scientific research“ and the facts of this case do not demonstrate that any company or laboratory is attempting to use inmates for research. Rather,  [p]etitioner, with the support of five treating physicians, is trying to get for his own use a course of treatment that the FDA has called ‘experimental’. It does not make sense to deny him that treatment in order to protect him from being experimented on.”

Petitioner was represented by Alan J. Pierce. The Legal Aid Society and Prisoners’ Legal Service filed an Amici Curiae brief in support of Petitioner.
 

DOCS REVERSES TIER III HEARING BASED ON HANDWRITING COMPARISON.

        In May 2008, an official at Coxsackie Correctional Facilty received an anonymous threatening letter. The letter was turned over to a counselor to identify the author of the letter by comparing the letter to handwriting samples in the facility’s guidance unit. A counselor then wrote a misbehavior report stating that after reviewing 11 inmate writing samples, she determined that Victor Woodard wrote the threatening letter because his handwriting was similar to the threatening letter. At a Tier III hearing the hearing, officer, and Mr. Woodard viewed the threatening letter and Mr. Woodard’s writing samples, and disagreed over whether the handwriting matched. Mr. Woodard was found guilty and received 1 year in SHU. Mr. Woodard also challenged the Tier III hearing through a pro se Article 78 proceeding. The case was transferred to the Appellate Division, Third Department, which relied on its own prior decisions in upholding the hearing disposition, and dismissing the petition. Mr. Woodard then made a motion for leave to appeal to the Court of Appeals, the highest court in the state court system. In November 2009, the Court of Appeals agreed to hear Mr. Woodard’s case. At the request of the Court of Appeals, PLS agreed to represent Mr. Woodard in the Court of Appeals. In February 2010, PLS filed a brief arguing that Mr. Woodard’s hearing disposition was not supported by substantial evidence. Subsequently, DOCS agreed to reverse the Tier III hearing.
 

Advocacy by PLS persuades DOCS to issue check for $1,900

In response to Mr. R.’s property claim, the superintendent of his facility approved reimbursement to Mr. R. in the amount of $1,900.00. The approval was sent to the DOCS Central Office for payment. When Mr. R. contacted PLS, eight months had passed since the approval, and he had yet to receive the check. A PLS casehandler made several phone calls to the appropriate Central Office staff persons, following which the check was sent to Mr. R.
 

Prisoners’ Legal Services Files Federal Due Process Claim

Prisoners’ Legal Services (PLS) has recently filed a federal civil rights due process claim on behalf of Robert Johnson, seeking compensatory damages for 423 days he is alleged to have been wrongly confined in the Special Housing Unit (SHU). Mr. Johnson was placed in SHU following a prison disciplinary hearing in which he was found guilty of assault upon another prisoner. It is alleged that during the hearing the hearing officer failed to independently assess the credibility and reliability of certain confidential information, such that the guilty disposition was not supported by the requisite degree of evidence. 

In 2008 PLS, had filed an Article 78 proceeding in New York State Supreme Court challenging the disciplinary hearing disposition, seeking reversal of the disposition and Mr. Johnson’s release from disciplinary confinement. During the course of that state court litigation, the Department of Correctional Services (DOCS) decided to reverse the disposition prior to a decision by the court. Mr. Johnson was released from SHU and all references to the guilty disposition were expunged from his records.  

On March 30, 2010, PLS commenced this civil rights claim on Mr. Johnson’s behalf in the United States District Court for the Northern District of New York, seeking compensation for the time he was held in SHU in violation of his Fifth and Fourteenth Amendment rights to due process. 
 

Prisoners’ Legal Services Files Federal Excessive Force Claim Against Seven Correction Officers at Clinton Correctional Facility

PLS has filed a civil rights claim on behalf of prisoner Issiah Saunders in the United States District Court for the Northern District of New York. It is alleged that on April 17, 2007, the seven defendant officers sadistically and maliciously assaulted Mr. Saunders at Clinton Correctional Facility in Dannemora, New York. Mr. Saunders claims that during the incident he was brutally beaten, often while restrained in handcuffs. He claims this assault included having one of his shoes removed and a sergeant then beating him about the foot with a baton. The injuries suffered were lacerations, abrasions and contusions to the arms, legs, feet, head, face, back, and a fracture of one foot.

The lawsuit seeks compensatory damages for the various injuries resulting from the beating, as well as punitive damages to punish the officers for their alleged malicious, wilful and wanton assault. The defendants named in the lawsuit are Correction Sergeants Richard Rendle and Darryl Menard and Correction Officers James Varin, Kevin Manor, T. Strack, M. Moak, and Patrick O’Connor.
 

PLS Attorneys hit the road!

This week, PLS attorneys travelled from the Ithaca Office to Elmira C.F, Five Points C.F, Great Meadow Correctional Facility, Central New York Psychiatric Center and the United States District Court in Buffalo. The reasons for these travels was as varied as the destinations: interviewing clients about their medical and mental health care issues, investigating an incident of excessive force and arguing a motion to compel discovery in federal court. Kevin Kelly, Krin Flaherty and Olivia Pulley reported that the visits were very successful, as was the outcome of the motion to compel.
 

CUNY Students Work With PLS To Obtain Reversals In Disciplinary Hearing

Last Fall PLS began a project with the City University of New York Law School (CUNY) and students in the Criminal Defense Clinic. PLS provided training to the students on disciplinary hearings in prison and CUNY Law Professor, Donna Lee, supervised the students in their review of two prison disciplinary hearings. In both cases Professor Lee and the students decided to file Article 78 petitions challenging the dispositions. One of those cases is presently pending in the Appellate Division, Irwin v. Fischer. The other, Jamison v. Fischer, Index No. 10584-09 (Alb. Co. Sup. Ct.) (April 9, 2010) (Teresi, J) was recently decided in favor of the petitioner.

In Irwin, the petitioner was charged with violent conduct, assault on staff, weapon possession, interference with employee, refusing a direct order and refusing a search or frisk. Upon being found guilty he was given a penalty of 30 months in solitary confinement and 30 months recommended loss of good time. The petitioner is claiming that the hearing officer failed to consider his mental health at the time of the incident and with respect to his ability to withstand a punishment of long-term isolation, denied him his right to present a defense, and imposed a penalty that was cruel and unusual. Because the case raises issues of substantial evidence it was transferred to the Appellate Division.

In Jamison, petitioner alleged that his right to call witnesses was improperly denied. Mr. Jamison requested nine witnesses. Only one of the requested witnesses testified. Of the remaining eight, one apparently signed a refusal form saying as his reason for refusing to testify, “I’m not in my cell.” The remaining seven witness refusal forms were unsigned and six of those stated that when asked to provide a reason for the refusal, the proposed witness “refused to provide further information.” One of the forms had nothing on it but an inmate’s name at the top. There was no testimony presented at the hearing by the corrections officers who obtained these forms. In reversing the hearing and expunging the charges, Judge Teresi found that the “corrections officer’s hearsay refusal reports provide[d] an insufficient basis for the hearing officer’s denial of Petitioner’s right to call witnesses.” The respondents, however, have filed a Notice of Appeal which results in an automatic stay. Thus Mr. Jamison is still being held in solitary confinement and will remain there until the Appellate Division decides his case or his SHU disposition time expires.
 

Court of Appeals hears argument in Hep C case

The New York Court of Appeals heard oral argument in the case of Wooley v. NYS Department of Correctional Services. This case challenges DOCS denial of low dose maintenance therapy of interferon, as treatment for Hepatitis C, after five doctors unanimously recommended the treatment. The Court expressed some concern that since the specific treatment in question was not proved to be effective, DOCS decision to deny treatment might be reasonable. There was also a dispute about the role in which Dr. Lester Wright, DOCS’ Chief Medical Officer, acted when he made the decision to deny the treatment.  Mr. Wooley’s attorney argued that Dr. Wright acted as a DOCS administrator. The Attorney General argued that Dr. Wright acted as a physician, and exercised his own medical judgment. However, members of the court pointed out that Dr. Wright never examined Mr. Wooley or spoke directly to the doctor who initially recommended the low dose therapy at issue. We expect a decision in this case in the next six or eight weeks. (The Legal Aid Society’s Prisoners’ rights Project and Prisoners’ Legal Services filed an amicus brief in support of Mr. Wooley.)
 

Albany County Supreme Court Rejects Sentencing Claims

The Albany County Supreme Court recently rejected three sentencing claims brought by PLS on behalf of several inmates.

In Brown v. Evans (Sup. Ct., Albany Co, May 5, 2010) (Connolly, J.) Petitioner challenged Parole’s refusal to credit a “time served” sentence served while he was on parole as parole jail time. Such sentences are generally credited as jail time to a new sentence but the Division of Parole refuses to credit them as parole jail time to a pre-existing sentence. The court concluded that the governing statute, Penal Law 70.40(c)(3)(iii) did not permit a parole jail time credit.

 In Webb and Sancarlos v. Fischer (Sup. Ct., Albany Co, April 1, 2010) (Connolly, J.) The petitioners sought to prohibit DOCS from applying judicially imposed PRS terms retroactively to interrupt sentences that had only administratively imposed PRS at the time they were originally released from custody, an interruption which caused their current sentences to be extended. Although the Appellate Division has held that resentencing to PRS “does not operate retroactively to cure the illegal imposition of postrelease supervision, meaning [DOCS] could not validly be punished for violating the terms of postrelease supervision until after it was imposed by a court” (State v. Randy M., 57 A.D.3d 1157 [3d Dep’t 2008]) , the court concluded that DOCS was bound to apply PRS retroactively in these casesbecause the commitment papers specifically ordered that it be applied nunc pro tunc.
 
In Campbell v. Fischer (Sup. Ct., Albany, Ct., May 28, 2010) (Connolly, J.) the court denied an inmate’s request that DOCS credit time served on a misdemeanor sentence served while he was on work release to his state sentence on the grounds that the misdemeanor court had ordered the sentence to run concurrently with the State term. The court concluded that the governing statute, Penal Law 70.30(7)(c) did not permit this credit, notwithstanding the misdemeanor court’s order.
 

PLS has re-opened its Buffalo Office

PLS has re-opened its Buffalo office at 237 Main Street, Suite 1535, Buffalo, NY 14203. We would like to welcome our new Managing Attorney Maria Pagano and Staff Attorney Nicole Godfrey. Maria Pagano is a graduate of C.U.N.Y. Law School, ’93, and has practiced public interest and poverty law for over 15 years in New York and Arizona. Her practice areas include public benefits, housing, family, consumer, HIV, and prisoners’ rights law.  Maria has previously worked as a PLS Attorney in New York City and Buffalo.  She comes back to PLS from DNA People’s Legal Services in Flagstaff, AZ where she was the Managing Attorney. Nicole Godfrey is a 2009 graduate of the University of Denver Sturm College of Law. As a law student, Nicole enrolled as a student attorney in the University of Denver’s Civil Rights Clinic, where she represented a federal prisoner challenging his conditions of confinement at the United States Penitentiary – Administrative Maximum (the federal “supermax” in Florence, Colorado). Nicole, admitted to the Colorado bar in October 2009, practiced as a volunteer attorney at the American Civil Liberties Union of Colorado before joining PLS in March 2010.

The Buffalo Office is a member of the Erie and Niagara County Prisoner ReEntry Task Force. For more information concerning reentry to the Buffalo/Niagara area go to www.newstart.org.
 

Administrative advocacy results in an additional year of jail time credit

Follow-up
In 2008, the court reversed Mr. P’s conviction for assault in the first degree. At the time of the reversal, Mr. P. who was in DOCS custody , was released to the custody of the New York City Department of Correction (NYC DOC). He spent approximately a year at Rikers Island before reaching a plea deal. When he returned to prison, Mr. P. realized that NYC DOC had not given him jail time credit for the period between the court reversal and when he was returned to DOCS custody. Mr. P attempted to resolve this matter himself by writing to NYC DOC but he was unsuccessful. In April, PLS contacted the legal division of the NYC DOC and within the month, the time that Mr. P was seeking was credited to his sentence. As a result of PLS’ advocacy, Mr. P.’s maximum expiration date changed from 6/16/15 to 6/12/14.

Senator Velmanette Montgomery Sponsors Juvenile Justice Reform Agenda

In response to the report by the Department of Justice, criticizing the state of juvenile facilities in New York State, http://www.justice.gov/crt/split/documents/NY_juvenile_facilities_findlet_08-14-2009.pdf , Senator Velmanette Montgomery has proposed a comprehensive juvenile justice reform agenda. Senator Montgomery’s agenda includes legislation to:

• redirect state funding to support community-based alternatives to incarceration;
• ensure oversight by authorizing the Correctional Association to inspect and report on deficiencies at the facilities;
• ensure accountability by authorizing Prisoners’ Legal Services to provide representation to youth who are victims of abuse or subject to unconstitutional conditions of confinement;
• require the re-investment of savings from the closing of juvenile facilities in the Juvenile Justice Smart Investment Fund to support community-based services; and
• establish a pilot program to provide job and vocational skills training to youthful offenders.

Senator Montgomery’s efforts to ensure effective oversight and advocacy on behalf of our incarcerated children demonstrate her keen understanding of the value and vulnerability of our youth. The Senator’s legislation will help ensure that our youth are safe and that their medical and mental health needs are being addressed during their incarceration. This, in turn, will help ensure their successful reintegration into society upon their release.

PLS Signs On As Amicus In Hep C and PLRA Cases

The Legal Aid Society’s Prisoners’ Rights Project and Prisoners’ Legal Services have filed an amicus brief in the case of Wooley v. NYS Department of Correctional Services, a case presently pending before the New York State Court of Appeals. The Wooley case challenges DOCS denial of medical treatment for Mr. Wooley’s chronic Hepatitis C infection. In this case, five health care providers unanimously supported treatment therapy for Mr. Wooley’s Hepatitis C in the form of low dose maintenance therapy with pegylated interferon, but DOCS’ decision maker, Chief Medical Officer Lester Wright, with knowledge of the risks of withholding the medication, nevertheless refused to approve its use. The issue in the case is whether Dr. Wright’s decision to withhold treatment was arbitrary and capricious, lacked a rational basis and/or was deliberately indifferent to Mr. Wooley’s serious medical needs. The case is scheduled to be heard during the Court’s June session.

PLS also agreed to join with numerous other legal services groups in filing an amicus brief in the case of Perez v. Cate, a case presently before the U.S. Court of Appeals for the Ninth Circuit. The Perez case involves an attempt by California Prison officials to impose a new, separate cap on paralegal rates under the Prison Litigation Reform Act (PLRA). In Perez, the state is arguing that paralegal rates should be calculated based on the cost of the paralegal to the paralegal’s employer rather than the reasonable market rates. Prisoners, of course, can very rarely afford to hire lawyers with their own funds and thus a prisoner’s only option is to hire counsel who is willing to take the case based on the possibility of recovering attorney’s fees if he or she is successful in litigating the case. Paralegals play a vital role in the unique field of prison litigation and it is imperative that legal services organizations have the ability to employ paralegals to work on prison cases. If amici organizations such as the ones represented in Perez are not able to recover reasonable rates for the work of their paralegals, they will be unable to afford to hire paralegals, and therefore unable to use paralegals in the representation of prisoners.