Prisoners' Legal Services of New York

With a kudos to Maine DOCCS for their “Language Matters” initiative.

PLS Virtual Pro Bono Event 2021

PLS' Virtual Pro Bono Event

LAWSUIT CHALLENGES FIVE POINTS DENIAL OF MOBILITY ACCOMMODATIONS TO PEOPLE WITH DISABILITIES

LAWSUIT CHALLENGES FIVE POINTS CORRECTIONAL FACILITY’S DENIAL OF WHEELCHAIRS, CANES, AND OTHER MOBILITY ACCOMMODATIONS TO PEOPLE WITH DISABILITIES

For Immediate Release
Media Contact: Andrew Stecker, astecker@plsny.org, (716) 854-1007
Torie Atkinson, tatkinson@dralegal.org, (332) 217-0167

August 31, 202,1 Romulus, NY – Today the nonprofit organizations Disability Rights Advocates (DRA) and Prisoners’ Legal Services of New York (PLS) filed a class action lawsuit against the New York State Department of Corrections and Community Supervision (DOCCS) on behalf of people with disabilities who are incarcerated at Five Points Correctional Facility and have been denied mobility-related accommodations they need to get around. Read the complaint here.

Specifically, the lawsuit alleges that DOCCS routinely confiscates people’s mobility aids, like wheelchairs and canes, on arrival, even if they were issued by DOCCS at other facilities; refuses to replace or provide mobility aids when needed; provides broken and unusable shared wheelchairs that are difficult to access and not individualized to the needs of the person with a disability; and denies people assistants to help with cell cleaning and other tasks. Additionally, the plaintiffs assert that people who use wheelchairs and cannot push themselves have no reliable way to get around the facility because of DOCCS’ reliance on an ad-hoc process of calling other people who are incarcerated (known as “pushers”) to push them. The complaint charges that people who use wheelchairs are routinely left stranded while trying to get to and from facility services and programs like meals, medical visits, phone calls, recreation, and the law library. DOCCS’ administration of the pusher program is so inadequate, the lawsuit alleges, that people with disabilities who need pushers themselves are sometimes assigned to be pushers for others.

Plaintiffs Robert Cardew, Harrell Bonner, Philip Nelson, Melvin Johnson, and Khalik Jones have disabilities that require the use of wheelchairs and canes. Plaintiffs have experienced issues such as delays of a year or more to receive requested mobility aids, often only to receive items in disrepair and not individualized for their needs. The shared wheelchairs in Five Points are repeatedly vandalized, too big or too small, have loose wheels, ragged armrests, and missing foot rests. Mr. Bonner used a ripped T-shirt to tie the arm of his chair to its seat. Mr. Cardew was repeatedly told that if he could not push himself to meals, he could simply not eat. Mr. Nelson frequently has no access to a wheelchair, and as a result falls five or six times a month and once broke his nose from a fall. Despite his requests for consistent access to a wheelchair and a pusher, Mr. Nelson was himself assigned to be a pusher. When called to push someone else, he would use the wheelchair’s handles as a walker to support himself. Because no one can be found to assist him, Mr. Johnson is regularly forced to push himself to and from places, even though it is dangerous and painful for him. Mr. Jones requires a cane, but has twice had his cane (provided by other DOCCS facilities) confiscated upon arriving at Five Points. As a result, he has fallen multiple times, including once down stairs.

Plaintiffs maintain that DOCCS’ significant failures to provide these necessary mobility aids and services amount to unlawful discrimination against not just Plaintiffs, but a class of people with mobility-related disabilities who have been unable to safely and meaningfully navigate the facility and the programs and services it offers, in violation of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973.

“It has been a constant struggle with DOCCS to get a wheelchair that isn’t falling apart and someone to push it,” said plaintiff Robert Cardew. “When I have to push myself, I can’t breathe and my chest hurts. I shouldn’t be hurting myself like this just to get to and from meals and programs, or spending hours a day waiting for someone to help me. Things need to change not just for me but for all of the other guys in here who can’t get around.”

“I have been waiting more than 11 years for a working wheelchair that I am not tying together with string and ripped T-shirts,” said plaintiff Harrell Bonner. “I can’t get to meals, to the yard, or even the bathroom because I can’t get a pusher. The situation is dehumanizing and stressful. Five Points needs to do right by all of us who use wheelchairs and canes.”

“DOCCS has failed to ensure that people with mobility disabilities have access to the accommodations they need and are entitled to under the law,” said Torie Atkinson, Staff Attorney at Disability Rights Advocates. “It is time for DOCCS to abolish this discriminatory patchwork system and provide people with disabilities working wheelchairs, canes, cell assistants, and a functional way to get around the facility.”

“The lack of appropriate accommodations for our clients with disabilities has left them vulnerable to abuse, unable to access essential services and, in some cases, with worsened medical conditions,” said Megan Welch, Staff Attorney at Prisoners’ Legal Services of New York.

“The road to protecting the rights of people with disabilities in prison has been a long one and PLS has played an integral role in that fight,” said Karen Murtagh, Executive Director of PLS. In 2002, PLS and other advocates filed a lawsuit on behalf of people with mental illness in prison. That complaint, like the one filed today, alleged that the State was in violation of the ADA and the Rehabilitation Act, by disciplining people rather than addressing their serious mental health needs. “In 2006, the State settled that case, agreeing, among other things, not to place people with serious mental illness in solitary confinement. Today, PLS is once again championing the rights of people with disabilities in prison, and I have no doubt we will, once again, prevail,” said Murtagh.

The plaintiffs and class members seek a declaration that these practices are illegal and an injunction to require DOCCS to change its policies and practices so that people with mobility disabilities at Five Points have the accommodations they need to get around the facility and access all of the programs, services, and activities that non-disabled people there can access. The plaintiffs also seek compensatory damages for the pain and suffering they have experienced as a result of this treatment.

About Disability Rights Advocates
Founded in 1993, Disability Rights Advocates (DRA) is the leading national nonprofit disability rights legal center. Its mission is to advance equal rights and opportunity for people with all types of disabilities nationwide. DRA represents people with the full spectrum of disabilities in complex, system-change, class action cases. DRA is proud to have upheld the promise of the ADA since our inception. Thanks to DRA’s precedent-setting work, people with disabilities across the country have dramatically improved access to health care, employment, transportation, education, disaster preparedness planning, voting and housing. For more information, visit http://www.dralegal.org.

About Prisoners’ Legal Services of New York
Prisoners’ Legal Services of New York (PLS) is a non-profit legal services organization founded in 1976 to provide indigent incarcerated New Yorkers access to the courts. There are over 32,000 individuals incarcerated in 51 prisons across New York State, and PLS responds to more than 10,000 requests for assistance annually. Our mission is to provide high quality, effective legal representation and assistance to indigent prisoners, to help them to secure their civil and human rights, and to advocate for humane prisons and for a more humane criminal justice system.

Surviving the Pandemic: Tell us your story!

National Pro Bono Week is a time to celebrate and recognize the work of our dedicated pro bono volunteers as well as to educate the community about the many issues faced by PLS’s clients. This year, in addition to recognizing our volunteer attorneys with Pro Bono awards, the virtual event will shine a light on the impact of the COVID-19 pandemic on incarcerated individuals and their families.

We are seeking submissions, from those in custody and from their loved ones, about how the pandemic impacted them. Submissions can include COVID-19 related stories, letters, poems, artwork, or even scenes with characters and dialogue. What was it like to be incarcerated or have a family member incarcerated during the worst part of the COVID pandemic? Were you able to communicate with your loved ones? If not, how did you cope during the periods when you were unable to see or speak with them? Did you or someone close to you become infected with the virus? If so, what was that experience like? Did you lose a close friend or relative to COVID-19? What was it like to see your loved ones in person again after being separated for so long?

If you would like to share your story of coping with the anxieties and uncertainties of being incarcerated or having a loved one behind bars during the peak of the pandemic, please send us your submission.

Because our event this year will be virtual, we are particularly interested in receiving artwork. We will use the artwork to create a collage depicting the impact of the virus from an artistic standpoint. So, if you have been waiting to share your artistic talent – now’s the time!

If you speak/write in a language other than English, please feel free to send us a submission in your primary language, that is, the language in which you are most comfortable expressing yourself.

We will compile selected submissions, and the finished product will be presented by professional actors during a live virtual performance at our November 2021 pro bono celebration. We will also display artwork selected from the submissions throughout the event.

Poems should be no more than one (1) page. Stories or short plays should be no more than five (5) pages in length and mailed, with the letter below to: Pro Bono Director, Prisoners’ Legal Services of NY, 41 State Street, Suite M112, Albany, New York 12207, no later than August 22, 2021 or email your submission to: pkane@plsny.org

By sharing your first-hand accounts, we hope to educate the public about the issues faced by incarcerated individuals and their families and friends, and to recruit attorneys to take cases pro bono, thus increasing access to justice for indigent incarcerated persons across the State. While we cannot guarantee that each piece will be read or displayed, we encourage all submissions and will do our best to integrate as many as possible into the event.

PLS reserves the right to make editorial changes to submissions.

IMPORTANT

When you send us your submission, please include the following cover letter, which must be DATED and SIGNED by you, with your submission. You may simply send us this page, dated and signed below, as your cover letter, along with your submission:

DATE: __________________

Dear Pro Bono Partnership,

Enclosed is my submission for the 2021 PLS Pro Bono Event. I authorize PLS to use my submission and my name at the event and in the event materials. I also authorize PLS to post my submission on its website and any other PLS social media platform such as Facebook, Twitter, Instagram, etc. and include it in Pro Se. I also authorize the use of my submission and my name in PLS informational and promotional materials.

Sincerely,

_______________________________________

(Please sign your name here)

Kevin Nelson – Staff Attorney

Kevin Nelson

Staff Attorney

(518) 438-8046 ext. 1107

Knelson@plsny.org

Kevin joined PLS as a staff attorney in the Family Matters Unit in 2022 due to his belief that all people matter and their lives have value, and because he values parent-child relationships. Before becoming a staff attorney, Kevin interned at the Schenectady County Public Defender’s Office, The Justice Center at Albany Law School in the Family Violence Litigation Clinic, and Empire Justice Center. Kevin graduated from Albany Law School where he focused his studies on criminal law and social justice. Prior to law school, Kevin earned an MTS at Drew Theological School and worked in the nonprofit sector in New York and Boston. Kevin’s decision to attend law school was motivated in large part by his experience advocating for LGBTQ+ rights and confronting gender discrimination and sexual abuse in the judicial system of The United Methodist Church.

Second Circuit holds Article 10 detainee is not prisoner for PLRA purposes

On June 22, 2021, in Jones v. Cuomo, et. al., No 20-2174, the Second Circuit held that an individual who is detained, due to a determination that he poses a danger to the public as opposed to the terms of a criminal sentence, is not a “prisoner” as defined by the PLRA.

Plaintiff, Daniel Jones had been incarcerated in a New York State prison from 1992 to 2012 for various sex offenses. In 2012, when he was scheduled to be released from prison, NYS petitioned for his civil confinement under Article 10 of New York’s Mental Hygiene Law (“MHL”). Jones has since been confined pursuant to that petition.

In 2016, Jones sued under 42 U.S.C. § 1983, challenging the constitutionality of his commitment proceedings and his current confinement. Jones lost in the district court and appealed to the Second Circuit. When he filed his appeal, he was instructed to “submit a Prisoner Authorization Form so that, pursuant to the PLRA, the filing fee and other court costs could be deducted from his institutional patient account at Central New York Psychiatric Center (‘CNYPC’).” While Jones objected to having to file the form, arguing that he was not a “prisoner” as defined under the PLRA, he still completed the form and paid the required fees. He then moved for restoration of the fees that were deducted from his institutional patient account arguing, again, that he was not a “prisoner” under the PLRA.

In response, the Second Circuit ordered the restoration of fees paid by Mr. Jones, finding that “[a]s a civil detainee who completed his criminal sentence, Jones was no longer a ‘prisoner’ within the meaning of the PLRA when he filed his lawsuit and therefore [was] not subject to the PLRA’s fee provisions.”

PLS Executive Director Applauds DOCCS for Resuming Visitation

In a July 3, 2021 Press Republican article, PLS Executive Director, Karen Murtagh commended DOCCS for allowing a brief embrace at the beginning and end of each visit, resuming the Family Reunion Program (FRP) and adopting a vaccine incentive campaign. The FRP will resume in September 2021, assuming the COVID-19 infection rate continues to decline. The program allows family members to reunite and reconnect, is essential to maintaining safety and security in the prisons and helps ensure successful reentry and reintegration upon release. Murtagh noted that the FRP has been around for decades, is a special privilege that must be earned and now will require that all people over 12 years old who wish to participate in the program be vaccinated.

DOCCS has also initiated a campaign to incentivize the incarcerated population to get vaccinated. Murtagh praised DOCCS’ efforts on this front, especially in light of the fact that the vaccination rate among the incarcerated population is currently approximately 25% below that of the general population.

Pro Se, Vol 31 No. 4 July 2021

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PLS Wins Groundbreaking Case in the Second Circuit

On July 1, 2021, the Second Circuit issued a landmark decision in Brathwaite v. Garland, a case filed by PLS, finding that the Board of Immigration Appeals (BIA’s) imposition of a presumption of finality to state criminal convictions that were under appellate review was arbitrary and unreasonable.

In the case, Aldwin Brathwaite, a lawful permanent resident of the United States since 1979, was charged with removal from the country because of two New York State convictions in 2018. Shortly after the initiation of immigration proceedings, Mr. Brathwaite filed a motion with the First Judicial Department of the New York Appellate Division to review his state criminal convictions. Mr. Brathwaite sought appellate review because he had not been properly informed during the trial proceedings that his criminal convictions would have severe immigration consequences for him. Following the First Judicial Department’s grant of Mr. Brathwaite’s motion and agreement to hear his criminal appeal, Mr. Brathwaite sought to terminate his immigration proceedings so New York’s appellate body could properly consider his appeal and determine if his original convictions were properly obtained. Mr. Brathwaite relied upon a longstanding precedent first announced by the Supreme Court in 1955 that a noncitizen’s criminal conviction should not incur immigration consequences until appellate review has been exhausted or waived.

The Immigration Judge, however, disagreed with Mr. Brathwaite’s argument for termination of the removal proceedings and ordered him removed from the United States. The Immigration Judge relied upon a 2018 decision issued by the BIA, Matter of J.M. Acosta, which held that a presumption of finality attaches to state criminal convictions once the initial period of filing for appellate review has passed and that a noncitizen bears the burden of proving his criminal appeal relates to a substantive or meritorious issue in order to overcome this presumption. Such a requirement was impossible for Mr. Brathwaite to meet because his criminal appeal had only just begun, he had not yet been assigned appellate counsel, and the record of his trial proceedings had not yet been produced for review. Mr. Brathwaite then appealed to the Immigration Judge’s decision to the BIA and, after the BIA affirmed the decision, sought review from the Second Circuit.

Following briefing and oral arguments, the Second Circuit ruled in Mr. Brathwaite’s favor and vacated the removal order issued against him. The Second Circuit determined that the BIA’s adoption of the presumption of finality principle in J.M. Acosta and its application of that standard to Mr. Brathwaite’s case was arbitrary and unreasonable. Noting that “the criminal appeals process in New York proceeds at a different pace than federal removal proceedings,” the Second Circuit explained that the BIA’s holding produced significant practical problems, resulting in noncitizen criminal defendants risking deportation even while pursuing state-approved challenges to criminal convictions.

The Second Circuit’s ruling in Mr. Brathwaite’s case stands to positively impact the removal proceedings of thousands of noncitizen criminal defendants in New York State, ensuring they can pursue appellate review of their criminal convictions without being deported from the country prior to the resolution of those appeals.

DOCCS Reverses Disciplinary Hearing in Response to Lawsuit From PLS

PLS prevails in challenge to a prison disciplinary proceeding alleging guilty finding was not supported by substantial evidence and violated state regulations and DOCCS’ directives.

Matter of Powell v. Anthony Annucci, Albany County Index No. 907377-20

The misbehavior report in this matter alleged that our client’s property was searched and a weapon recovered from a package of spaghetti. Our client was charged with possessing a weapon, altered item, and contraband.

At his hearing, the log of our client’s property was entered into evidence; there were no food items on the log. At the hearing, an officer testified that our client had two full property bags of food upon his admission to SHU that were not inventoried and documented due to the officer’s error, but the officer did not mention a package of spaghetti in the alleged non-inventoried bags of property.

The Hearing Officer found our client guilty of all changes and imposed a penalty of 120 days in solitary confinement and 180 days loss of recreation, packages, commissary, and phone. The Department of Corrections and Community Supervision modified the decision, dismissing the charges of altered item and contraband, but did not reduce the penalty..

PLS filed an Article 78 alleging two causes of action: The hearing disposition was not supported by substantial evidence, and the hearing disposition violated the regulation and directive that require an inventory of an individual’s property upon admission to SHU. In response, DOCCS administratively reversed the hearing and expunged the charges from our client’s institutional record.