Prison Legal News:
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Volume 15, Number 7
In this issue:
- Abu Ghraib, USA (p 1)
- From the Editor (p 6)
- Washington DOC Fined $60,000 for Bogus Water Pollution Reports (p 7)
- Thirty Three Years after Attica: Many more Blacks in prison, but not as guards (p 7)
- Is It Criminal to Be a Muslim Civilian or Military Prison Chaplain? (p 8)
- Supreme Court Holds Guantanamo Detainees Can Challenge Detention (p 9)
- Virginia Prison Drives Women to Depression and Suicide (p 10)
- California Agrees to Provide Kosher Prison Diet Program (p 11)
- Tennessee Prison Audit Blasts DOC, CCA and CMS (p 12)
- Oklahoma Man Misidentified as Pedophile Awarded $3.7 Million (p 13)
- Overcrowding Forces Alabama Prisoners Into Private Prison Web (p 14)
- Arizona Prisoners Seize Tower; State Officials Point Fingers (p 16)
- BJS Looks at Probation, Parole in 2002 (p 17)
- Texas Jury Awards BOP Prisoner $4 Million for Rape by Guard (p 18)
- $3 Million in Settlements for Wrongful Illinois Convictions (p 18)
- Record Number of "Lifers" Now in U.S. Prisons (p 19)
- Florida Jail Pays Prisoner's Family $2.5 Million in Methadone Withdrawal Death (p 20)
- BJS Finds Low Recidivism among Released Sex Offenders (p 20)
- New York Prisoner Awarded $800,000 for Undiagnosed, Untreated Throat Cancer (p 21)
- $1.5 Million Verdict in NYC Jail Medical Malpractice Death (p 22)
- Arizona Prison Director Has Poor Track Record (p 22)
- Private Probation Companies Prove Corrupt in Tennessee (p 23)
- Controversy and Lawsuits Surround South Texas Private Prison Deals (p 24)
- Warden Sentenced for Stealing Dali Painting From Rikers Island Jail (p 25)
- California Class Action Lawsuit Targets Unauthorized Prison Phone Charges (p 26)
- Court Vacates Connecticut Jury Award of $30,000 for Failure to Exhaust Administrative Remedies (p 26)
- Wisconsin Contract for Faith-Based Program Does Not Violate First Amendment (p 27)
- Washington State Prison Continues To Pollute Local Environment Despite Repeated Citations (p 28)
- Michigan Supreme Court Allows Seizure of Prisoner's Pension Despite ERISA (p 30)
- Failure to Treat Transsexual for Self-Mutilation States Claim (p 31)
- Section 1983 Complaint Dismissed as Mixed Petition, But Amendment Allowed (p 31)
- Oklahoma "Civil Death" Statute Does Not Preclude Prisoner Tort Actions (p 32)
- Counsel Appointed to Brief Questions of PLRA Total Exhaustion and Sandin Confinement Conditions for Atypicality (p 32)
- No PLRA Fee Cap When Injunctive Relief Obtained (p 33)
- Sanctions Against Ohio Paralegal Firm Upheld (p 34)
- Qualified Immunity Test Hinges Upon SHU Sentence Imposed, Not SHU Time Served (p 34)
- Oregon Trial in Prison Did Not Violate Constitution (p 35)
- Interest on Legal Financial Obligations Not Dischargeable in Bankruptcy (p 36)
- California Sex Offender Prison Classification Label Approved for Dismissed Charge (p 36)
- No Qualified Immunity in Civil Commitment Phone Monitoring (p 37)
- Prisoner Allowed to Amend Retaliation, Legal Mail Complaint (p 37)
- Challenge to State Parole Revocations Must Be Brought Under § 2254 (p 38)
- District of Columbia May Be Liable for Prisoner's Inadequate Medical Care (p 38)
- Ninth Circuit Dismisses California's Motion To Exclude Female Prisoners From Medical Suit (p 39)
- Florida Prisoner Awarded Costs in Successful Records Request Litigation (p 40)
- Fifth Circuit Vacates $70,000 Award Against Texas Prison Officials (p 40)
- No Summary Judgment for Ohio Guards Who Used Excessive Force, Case Loses At Trial (p 41)
- News in Brief (p 42)
- Michigan Grievances Exhausted Upon Fair Notice of Claim (p 44)
When I heard that dogs had been used to intimidate and bite at least one detainee at Abu Ghraib, I thought of the training video shown at the Brazoria County Detention Center in Texas.
When I learned that the male prisoners at Abu Ghraib were forced to wear women's underwear, I thought of the Maricopa County jails in Phoenix, Arizona.
And when I saw the photos of the naked bodies restrained in grotesque and clearly uncomfortable positions, I thought of the Utah prison system.
Donald Rumsfeld said of the abuse when he visited Abu Ghraib on May 13, "It doesn't represent American values." But the images from Iraq looked all too American to me.
I've been reporting on abuse and mistreatment in our nation's jails and prisons for the last eight years. What I have found is widespread disregard for human rights. Sadism, in some locations, is casual and almost routine.
Reporters and commentators keep asking, how could this happen? My question is, why are we ...
When I first saw the photo, taken at the Abu Ghraib prison, of a hooded and robed figure strung with electrical wiring, I thought of the Sacramento, California, city jail.
the Bush administration in a massive love fest over the death of Ronald Reagan. While it is generally considered bad form to speak poorly of the dead, like much of American domestic and foreign policy, there are winners and losers in all policy decisions. Those reaping the spoils certainly find nothing to criticize in those who made their profits and political gain possible. For the losers though, it is a different story.
Few media sources have analyzed the lasting impact of Reagan's legacy on prisoners and the criminal justice system. After some fifty years of relative stability, the nation's prison population began a rocketing climb that continues to this day, going from some 300,000 state and federal prisoners to over 2.1 million state, federal and jail prisoners today. A figure that grows exponentially each day.
Just as Reagan signified a war on organized labor, national liberation movements, women's rights and children, prisoners didn't fare much better. The federal Sentencing Guidelines were enacted under Reagan which eliminated parole and most good time reductions for federal prisoners and sharply increased all federal penalties, including reinstatement of the federal ...
The month of June saw the media and
Larry Altose, A DOE spokesman, said that 20 of 36 water pollution reports, filed from 1999 to 2002 by an unnamed MICC wastewater treatment plant operator, were falsified. Several of those reports were falsified to cover up permit violations, said Altose.
The plant processes 350,000 gallons of wastewater each day. The wastewater collects in a reservoir on McNeil Island. In one case, fecal coliform levels in the wastewater were four times the acceptable limit. In other cases, the wastewater was too murky or too contaminated to carry sufficient oxygen to sustain fish and other resident aquatic life, said Pam Jenkins, the Environmental Service Director for the DOC.
The problem was corrected in July of 2002, and the plant operator who filed the false reports was put on administrative leave with pay, according to Jenkins. Since then, the former plant operator has continued to draw his $40,000 yearly salary, at taxpayers ...
The Washington State Department of Ecology (DOE) has fined the state Department of Corrections (DOC) $60,000 for falsifying water pollution reports. The fine was levied after the DOE discovered that officials at the McNeil Island Correction Center (MICC) near Steilacoom, Washington had filed numerous false wastewater reports.
In September 1971, thousands of prisoners at Attica prison in rural New York State rebelled, taking control of D-yard. Sixty-three percent of the prisoners were Black or Latino, but at that time there were no Blacks and only one Latino as guards. Seventy percent of the prisoners were urban, mostly from New York City, but 80% of the guards were from rural New York. The disparity between the keepers and the kept increased tensions at the prison by inserting a cultural gulf between guards and prisoners, and by giving Black and Latino prisoners painful evidence that their fate was, in part, determined by race.
After four days of negotiations, Governor Rockefeller ordered an assault on the prison, turning what was then the largest prison rebellion into the bloodiest. Thirty-two prisoners and 11 guard hostages died, almost all in the retaking of the prison.
Attica and the investigation into its causes caused a fundamental reexamination of correctional policy throughout America. While food, mail policies and rehabilitative programs were improved, the demand for more Black and Latino staff proved to be among the easiest to support and the most difficult to implement. Writing in 1973 about ...
by Peter Wagner and Rose Heyer
It may not yet be criminal to be a Muslim prison chaplain, but they are certainly being singled out and subjected to a heightened level of scrutiny in the New York, federal and military prison systems. This point was driven home by the arrest on September 10, 2003, of Yousef Yee, a Muslim Army Chaplain at Camp Delta, the military prison in Guantanamo Bay, Cuba, where alleged members of Al-Qaida and their Taliban and their collaborators are held in isolation, torment and secrecy. On July 23, 2003, Ahmad Al-Halabi, 25, an Air Force interpreter at the camp was also arrested on espionage charges.
Yee, who was returning to the U S. on personal leave, was stopped and searched by U. S. Customs officials at the Jacksonville (Florida) Naval Air Station after disembarking the military fight from Guantanamo Bay Naval Station. At that time, Yee was in possession of a sketch of the layout of some of the Camp Delta cells, the names of the prisoners in the cells, and the names of which translator is to be used for which prisoner. Such information is considered classified as the military takes great care to ensure that not ...
by Matthew T. Clarke
Meanwhile, Defense Secretary Donald Rumsfeld stated that the intent of detention in Camp Delta was not to try the detainees, but rather to "keep them off the street" for the remainder of the open-ended war on terrorism. The International Committee of the Red Cross has criticized the detention as open-ended and lacking in due process.
On November 10, 2003, the U.S Su-preme Court agreed to consider whether 16 detainees who are suspected of al-Qaeda or Taliban connections can challenge their detention in U.S. courts. The court will not decide whether the detention of the two Britons, two Australians, and twelve Kuwaitis is legal. Instead, it will focus on whether the civilian courts or the military should decide the legality of foreign terrorism suspects who are arrested overseas and held outside the U.S. Lower courts ruled that U.S. civilian courts have no jurisdiction in such cases. On June 28, 2004, the court held that the prisoners can challenge the legality of their detention the American court system. See: Rasul v. Bush, Case No. 03-334. PLN will report the case in detail shortly.
What kind of prison strikes this kind of despair and trepidation into prisoners? According to SLU prisoner Laura Brushingham it's the kind of prison that keeps you in constant fear for your life.
"We're forced to be housed with our enemies," she said. "...fights break out and they still house the same individuals again." Brushingham goes on to say, "we are being denied showers, ice, hot water, hot meals, religious programs [and] educational programs."
Department of Corrections (DOC) spokesman Larry Traylor says that the women get showers, ice and hot water daily unless they are on lockdown. He does not say how often these lockdowns occur or how long they last.
Fluvanna's SLU consists of two wings which hold 44 prisoners apiece. SLU is touted as a step up from Administrative Segregation which supposedly houses the most problematic prisoners. Yet some prisoners seem to prefer segregation to SLU.
Ten women were placed in segregation ...
Overwhelming depression drove Shawana West to hang herself when she learned that she was being placed in the Structured Living Unit (SLU) at Virginia's Fluvanna Correctional Center for Women. While the attempt was unsuccessful it did not fail to make a statement.
The California Department of Corrections settled a prisoner civil rights complaint on November 12, 2003 by agreeing to accord approved kosher-observant Jewish prisoners a Kosher Diet Program (Program). The Program provides guidelines for foods used, for preparation methods, and for sanitation and safety. Additionally, it promulgates rules to qualify applicants, monitor their strict conformance to Jewish dietary laws at all times and provide for Program inclusion and expulsion. A Jewish Chaplain, under supervision of an Orthodox or Conservative rabbi, shall oversee the determination of all questions related to the Program's implementation.
Victor Wayne Cooper, a kosher-observant Jewish prisoner at California State Prison (CSP), Solano, sued prison officials under 42 U.S.C. § 1983 and 42 U.S.C. § 2000 (RLUIPA) in U.S. District Court (N.D. Cal.) to obtain wholesome meals consistent with the dietary laws and obligations of the Jewish faith. The complaint was fully settled by the "Settlement Agreement and Release of All Claims" (signed on November 12, 2003 by [former] CDC Director Edward S. Alameida) as to plaintiff Cooper. Significantly, the Settlement specifies that the Program shall also be made available to all other qualifying Solano prisoners within 60 days, and ...
by John E. Dannenberg
A major problem revealed by the audit is the retention of prison guards. The average guard turnover rate in 2002 was 28%, up 1% from 2001. The rates were much higher in some instances. The Tennessee Prison for Women had a whopping 69% turnover rate in 2002. Two prisons in West Tennessee, where industries such as Goodyear and Caterpillar are located, also had higher than average turnover rates. One reason for low retention rates, an employee exit survey revealed, is comparatively low pay. For instance, all four prisons in Davidson County, where the average salary for jail guards was $3,500 higher than that of TDOC, suffered higher than average turnover rates. The warden of one TDOC prison in Davidson County was cited as saying "the department is basically a training facility for local jails because an individual can be trained by Corrections, receive work experience, and then leave for more money by working at county sheriffs' offices." The exit surveys ...
A Tennessee Department of Corrections (TDOC) performance audit for the years 1997-2002, released by the state comptroller's office in September 2003, reveals problems with prison staffing, pre-release preparation, and numerous instances of contract violations by private prison contractors.
by Michael Rigby
A jury has awarded $3.7 million in damages to an Oklahoma man who was falsely labeled a sexual predator after NewsOK.com, a Web site operated jointly by The Daily Oklahoman and Oklahoma City television station KWTV ...
Oklahoma Man Misidentified As Pedophile Awarded $3.7 Million
On June 27, 2003 the Birmingham News reported that overcrowding in county jails had become so intolerable that Montgomery County Circuit Judge William Sashy ordered officials to cut their populations. The Julia Tutwiler Prison for Women was placed under preliminary injunction after being cited for Eighth Amendment violations by the United States District Court for the Middle District of Alabama. (PLN Sept. 2003) Violations, according to Judge Myron Thompson, showed that Tutwiler was overcrowded, understaffed, inadequately ventilated and a generally dangerous place to live.
Meanwhile at the capitol, lawmakers scurried to approve an emergency package for the survival of the state's prison system after being threatened with a special session by Governor Bob Riley. The $25 million package was literally an eleventh-hour deal, approved minutes before midnight, at the end of the regular session, on June 18, 2003.
Politicians pouted and grumbled but Prison Commissioner Donal Campbell insists that funding was vital ...
Court orders have forced Alabama to reduce the number of prisoners in its county jails and send half of its prison population to two other states. Until recently the Alabama Department of Corrections (DOC) had crammed 28,000 prisoners into cell-space designed to hold half that many.
The drama began around 3 a.m. on January 18, 2004 when two Morey Unit prisoners, Ricky Wassenaar, 40, and Steven Coy, 39, reported for work in the prison kitchen. Armed with hidden shanks, the two quickly obtained control of the kitchen, handcuffing guard Kenneth L. Martin to a tool cage and tying up a female civilian kitchen worker with an electrical cord.
Wassenaar donned the guard's uniform, shaved his beard so as to resemble the guard, and made his way to a surveillance tower manned by Jason Auch, 21, and Lois Fraley, 33. On the job for less than 6 months, Auch assumed Wassenaar was a guard and buzzed him into the tower. Once inside, Wassenaar overpowered Auch ...
On February 1, 2004, the longest prison hostage drama in U.S. history ended peacefully as two Arizona prisoners released their final hostage, descended from their surveillance tower stronghold, and surrendered to an army of state and local police ringing the compound. The 15-day ordeal at the Arizona Prison Complex-Lewis may have been sparked by an escape attempt gone awry, but evidence suggests that lapses in security and the prison's fortress-like design had already set the stage for disaster.
The BJS report, surveying parole and probation populations, found that by December 31, 2002, 753,141 adult men: and women were on parole, up 2.8% from 2001, while 3,995,165 adults were on probation, a 1.6% increase. The growth in the parole population for 2002 was nearly twice the rate of increase of 1.5% seen annually since 1995. Compared to the increases in jails (4.0% annual growth), prisons (3.5%), and probation (3.1%), parole populations are the slowest-growing segment of America's carcereal population. In an interesting contrast, the probation population in 2002 grew at half its normal annual rate.
The five states ...
By the end of 2002, more than 6.7 million adults were incarcerated, on probation, or parole. This amounts to 3.1% of all adults in the United States, or about 1 in every 32 U.S. adults under correctional supervision. This is according to an August 2003 report released by the Bureau of Justice Statistics (BJS), a division of the U.S. Department of Justice, Office of Justice Programs. The numbers represent an increase of 150,700 adults from year-end 2001 and are, according to the BJS, "a new high."
DNA evidence and a powerful will to fight helped former federal Texas prisoner Marilyn Shirley win a sexual assault conAviction and a $4 million civil decision against a guard who raped her while she was being held in the Carswell federal prison camp in Fort Worth, Texas.
On June 17, 2003, Illinois passed a state budget that includes around $1.5 million in settlements for wrongly convicted former prisoners, including Rolondo Cruz and Aaron Patterson, former death row prisoners pardoned by former Governor George Ryan. Chicago approved a separate $1.5 million settlement for Calvin Owens, a wrongfully convicted former death row prisoner. Details on wrongful convictions are in the July 2003 PLN cover story.
$120,300 is for Cruz, who DNA evidence exonerated of the 1982 murder of a 12-year old girl. He was released in 1995 and pardoned in 2002. Patterson, wrongly convicted of murdering an elderly couple in 1986, will receive $161,500. The Roscetti 4 (men wrongly convicted of the 1986 rape-murder of medical student Lori Roscetti) will each receive over $120,000.
Court of Claims Judge Andrew Raucci commented on the settlement by saying, "We normally approve the maximum allowed by statute. We have some discretion, but normally these are so low to start. We're talking about someone spending 15 years in prison, so $150,000 is not a lot of money."
The settlements do not include litigation settlements or awards in lawsuits against law enforcement agencies ...
by Matthew T. Clarke
Now in U.S. Prisons
A new national study by The Sen tencing Project released on May 11, 2004, finds that a record one of every eleven (9.4%) prisoners in the United States is now serving a life sentence. The number of "lifers" nationwide 127,000 has increased by 83% since 1992. A quarter of that total is serving life without parole. The 50-state study the first of its kind also reveals that the average time to be served among lifers entering prison has jumped 37%, from 21 to 29 years (1991-97).
The study finds that the number of lifers has nearly doubled in the past decade despite a decline of 35% in violent crime rates. In nine states, over 10% of prisoners are lifers. One-fifth of all prisoners in both California and New York are sentenced to life. And in six states, and the federal system, all those sentenced to life have no possibility of parole, including more than 3,000 prisoners each in Pennsylvania and Louisiana. New York has the highest proportion (19.4%) of lifers in its prison population, although it uses life without parole sparingly.
Among the lifer population, an estimated ...
Record Number of "Lifers"
In July, 2002 PLN reported how Johnson desperately pleaded with her captors to continue her methadone medication. She offered to pay for treatment with her insurance ...
On May 23, 2001, Karen Johnson, 43, literally died of medical neglect while being held prisoner in the Orange County Jail in Orlando, Florida.
In 1994, fifteen states Arizona, California, Delaware, Florida, Illinois, Maryland, Michigan, Minnesota, New Jersey, New York, North Carolina, Ohio, Oregon, Texas, and Virginia released 302,309 prisoners, two-thirds of the nation's total prisoner releases for that year. Of these releasees, 10,546 were sex offenders. The BJS study tracked 9,691 released male sex offenders and compared their recidivism rates to the rates of the 272,111 prisoners tracked in the June 2002 report. The sex offenders were broken down into four overlapping categories: rapists (3,115 releasees), sexual assaulters (6,576), child molesters (4,295), and statutory rapists (443). Non-violent sex crimes were not included in the study, nor were the 87 female sex offenders released in 1994. Of ...
Contradicting popular perceptions, a November 2003 report by the Bureau of Justice Statistics (BJS), a division of the U.S. Department of Justice, found that violent sex offenders released from prison are less likely than non-sex offenders to be rearrested on any charge, and that approximately 1 in 20 released sex offenders are rearrested for a new sex crime. This report extends the BJS' June 2002 report on recidivism of released prisoners previously reported by PLN in March 2003.
for Undiagnosed, Untreated Throat Cancer
On September 30, 2003, a state court of claims in Albany, New York, awarded state prisoner Ronald Zacchi $800,000 for the pain and suffering he experienced as a result of the prison medical staff's failure to diagnose ...
New York Prisoner Awarded $800,000
A jury awarded $1.5 million on January 23, 2004 for the wrongful death of a 37 year-old mother of six who died on September 30, 1998 in a New York City (NYC) jail holding cell from improper medications given her. Liability was split 60% percent against Long Island College ...
Before signing on as director of the ADOC in June, 2003, Schriro weathered a troubled stint as head of the St. Louis, Missouri, jail systema post she held for less than two years. In 2002, five prisoners escaped from one of the city's medium security jails. Commonly called the workhouse, the jail was being used to house high-security prisoners while a new jail was being built. The escape earned Schriro a two week suspension.
A subsequent Justice Department investigation uncovered myriad security breaches at the jail. Surveillance cameras were aimed at the ceiling, keys were not inventoried, prisoners were not regularly counted, and visitors were not required to empty their pockets before entering the visitation area.
At least two riots occurred at the workhouse during Schriro's tenure. One resulted in litigation. After sustaining a concussion in one of the uprisings, Jamar Welch sued Schriro and several other jail officials. He sought as evidence a videotape and use-of-force reports detailing the 2002 incident ...
A federal judge in Missouri has refused to accept sworn testimony from Arizona Department of Corrections (ADOC) Director Dora Schriro, adding yet another chapter to Schriro's continuing saga of security lapses, deceit, and disappearing evidence.
"Drug addicts need to be turned around but instead are being hit up for money," Craft says. He also presented a 13-page proposal to the Legislature's Corrections Oversight Committee which cited other questionable practices including: a court clerk who used his position to supply clients to a spouse's private prison company; a Memphis private probation company where 2 employees oversee 1,100 probationers; and probation companies owned by convicted felons.
Some of the private companies charged probationers $35 for drug tests that only cost $15. They would then charge $100 for a second test. Some companies would charge a $25 "non-reporting fee" which allowed probationers to call in periodically rather than report.
Craft fears that judges are ...
Criminal Court Judge Chris Craft claimed private probation companies have "created a nightmare" in the Memphis, Tennessee probation system. Judge Craft, who is also chairman of the Private Probation Services Council, said that probation companies currently charge probationers fees "that frankly are not justified" and use probationers for "pet projects that benefit the companies." His assessment concludes that the current system is a hotbed for fraud, conflicts of interest, extortion and accuses operators of basically accepting bribes for not revoking probation.
by Matthew T. Clarke
Cotulla, a south Texas town known or the illegal drug-sting convictions of a quarter of its African-American citizens, now has a new claim to infamy -- private prison scams. Cotulla, population 3,000, is the county seat of LaSalle County. In June, 2000, self-proclaimed and unlicensed prison consultant Rick Reyes talked the LaSalle County CommissionersRay Landrum, Albert Aguero, Domingo Martinez, Roberto Aldaco and former County Judge Jimmy P. Pattersoninto issuing a $2 million bond to renovate a 48-bed Cotulla jail before selling it to the private sector. The renovation contract went to Louisiana-based Emerald Correctional Management and Reyes pocketed 3%. Reyes then talked the commissioners into endorsing a plan to build a privately-run, 1,000-bed INS prison. Later, he proposed the issuing of $22 million in bonds for construction of a 500-bed, privately-run U.S. Marshals Service prison in Encinal.
To shield the county from liability, Reyes proposed creating a shell corporation, the LaSalle County Public Facilities Detention Corporation (LCPFDC), appointing the commissioners as directors and issuing the bonds. This allowed a poor county with a monthly budget of $180,000 to issue $22 million in bonds and spend the money it raised. The 10% - 12% interest ...
A former Rikers Island deputy warden was sentenced to 1 to 3 years in prison after admitting that he, a former assistant deputy warden, and two former guards stole a rare Salvador Dali painting valued at $250,000 from its display case at Rikers Island jail in New York City.
In 1965, Dali was visiting New York and scheduled to visit Rikers Island to give prisoners an art lesson and gain publicity for the Art in Prison program. Dali fell ill and was unable to visit the prison. To ameliorate the prisoners' disappointment, Dali, himself a former prisoner, spent about two hours creating a 4-foot by 5-foot watercolor and charcoal painting, a crucifixion. Along with the painting came a message: "You are artists. Don't think of your life as finished for you. With art, you have always to feel flee." (sic) (Dali was a notoriously bad speller.)
The painting was signed, "For the dinning of the Prisoners Rikers Island" and for 16 years it hung in the prisoners' dining hall. In 1980, an expert authenticated and appraised the painting. Suddenly, the prison administration began to fear that the prisoners might damage the painting and it ...
by Matthew T. Clarke
The plaintiffs in the action are three criminal defense lawyers _ Elena Condes, Bicka Barlow and Brian Getz _ and an accountant, Christopher Fank. They allege in their complaint that defendants Evercom Systems, Inc., Global Tel*Link Corporation, T-Netix Telecommunications Services, Inc. and ILD Telecommunications, Inc. improperly charged them and other persons for prisoner collect calls that they had not authorized or accepted _ including calls that were received when nobody was present to answer the phone and calls received by telephone answering machines or voicemail. Also named as defendants in the action are Verizon California, Inc., Pacific Bell Telephone Co. and SBC Communications, Inc.
The plaintiffs have asserted claims based on California's Unfair ...
A lawsuit currently pending in a California state court claims that certain providers of prison telephone services have improperly charged for collect calls from correctional institutions that were not authorized or accepted by the called party. The lawsuit, Condes v. Evercom Systems, Inc., Alameda County (California) Superior Court Case No. 2002054255, was filed in 2002 by three San Francisco Bay Area law firms _ the Law Offices of Edward C. Casey, Jr., the Law Offices of John W. Allured and Bramson, Plutzik, Mahler & Birkhaeuser, LLP.
A Connecticut federal district court vacated a jury award of $30,000 because the prisoner plaintiff failed to exhaust administrative remedies. Connecticut prisoner Lori Hock sued guard Paul Thipedeau for violating her Eighth Amendment right to be free of cruel and unusual punishment.
By sending letters ...
by David M. Reutter
Does Not Violate First Amendment
by Bob Williams
A Wisconsin federal district court has found that a state Department of Corrections (WDOC) contract with a faith-based addiction recovery program does not violate the establishment clause of the First Amendment. This decision was later affirmed by the Seventh Circuit court of appeals.
The Freedom from Religion Foundation, Inc., filed a § 1983 action contending that a grant from the Wisconsin Department of Workforce Development (DWD) and a contract with the WDOC violates the establishment clause of the First Amendment by supporting Faith Works, a faith-based, long-term, addiction recovery program. On January 08, 2002, the district court entered an unpublished order finding that the DWD's grant to Faith Works violated the establishment clause. Trial was later held on the remaining issue of whether prisoners who participate in Faith Works do so based on their own, independent, private choice. This is the determinative issue in deciding whether the DOC contract violates the establishment clause by directly funding a faith-based program or indirectly funding the program which does not run afoul of the First Amendment.
In addition to Faith Works, all prisoners who met the treatment criteria and were ...
Wisconsin Contract for Faith-Based Program
by John E. Dannenberg
Toxic and hazardous waste from Walla Walla State Penitentiary (WSP) continues today to pollute City of Walla Walla air and public water resources, notwithstanding fourteen years of administrative litigation stemming from citations and fines levied by the Washington State Department of Ecology (DOE) against the Department of Corrections (WADOC).
For 117 years, the Washington State Penitentiary in Walla Walla has been a dumping ground for human "toxic waste" in the form of convicted felons. But it is WSP's irresponsible chemical toxic waste that takes center stage today. Turning a blind eye to the DOE, the WADOC quietly retained its century-old practice of ignoring long term ecological effects that its prison waste byproducts might be having upon the seemingly disconnected environment outside the walls and razor wire. Today, however, WSP's 560 acre tract is no longer an island immune from public scrutiny. The following tortured bureaucratic record speaks for itself.
On August 1, 1990, DOE inspected and cited WSP for eight "dangerous waste violations," including failures to properly designate waste and waste containers, properly manage waste discharges, ship hazardous waste off-site within 90 days, develop a waste inspection schedule, develop/follow a personnel waste training ...
The Supreme Court of Michigan (SCM) upheld a court's ordering a prisoner to have his pension benefits deposited in his prisoner account so that the state can seize a large portion of it to reimburse incarceration costs.
The Michigan State Treasurer filed a complaint in state court under the State Correctional Facility Reimbursement Act (SCFRA), M.C.L. § 800.401, et seq., against Thomas K. Abbott, a Michigan state prisoner, seeking to gain access to Abbott's pension benefits. The Treasurer showed how much it costs to incarcerate Abbot and requested an order that Abbott's pension benefits be deposited in his prisoner account and appropriated by the warden. The court ordered Abbot to direct his pension funds to his prison address. It ordered the warden to give Abbot $20 of each payment and divide the remainder, giving 67% to Abbott's wife and 33% to the state. It also ordered the pension plan to send the benefits to Abbott's prison address. Abbott appealed.
Following the federal district court's ruling in State Treasurer
v. Baugh, 986 F.Supp. 1074 (E.D.Mich. 1997), the appeals court held that the trial court's order ...
by Matthew T. Clarke
Since her imprisonment in 1983 by the Virginia Department of Corrections (VDOC), De'Lonta has been consistently diagnosed as suffering from GID. She had been receiving estrogen therapy since 1993 while in Greenville Correctional Center. Upon transfer in 1995 to the Mecklenberg Correctional Center, De'Lonta's treatment was abruptly terminated pursuant to a September 1995 memo that prohibits hormone treatment (the policy). The abrupt termination of treatment caused De'Lonta to suffer nausea, uncontrollable itching, and depression. The most harmful effect, however, was that De'Lonta developed an uncontrollable urge to mutilate her genitals. The district court held the complaint showed only disagreement with medical judgment concerning treatment and dismissed the ...
The Fourth Circuit Court of Appeals held the failure of prison officials to treat a prisoner for self-mutilation states an Eighth Amendment claim. The civil rights action was filed by Virginia prisoner Ophelia Azriel De'Lonta, who suffers from gender identity disorder (GID) (also known as gender dysphoria or transsexualism). De'Lonta has undergone various procedures to make her appear more feminine, including dermabrasions and chemical face peels. She also has received estrogen treatment to slow hair growth, soften her skin, and develop breasts and other female characteristics.
This civil rights action was filed by a prisoner at the Arkansas Department of Corrections Maximum Security Unit. The prisoner, James Kozohorsky, alleged in his complaint that guard Kenneth Frasier burned him with a chemical substance and retaliated against him by withholding notarization of affidavits and grievances; that guard Kay Wade refused to mail some of his legal letters; and that Warden Greg Harmon refused to take action against Frasier, failed to adequately train and supervise Frasier, and retaliated against Kozohorsky for filing grievances. The defendants moved for judgment on the pleadings. The district court dismissed the complaint for failing to administratively exhaust the claims against Harmon.
The Eighth Circuit held that 42 U.S.C. § 1997e(a) requires that all available prison grievance remedies must be exhausted as to all of the claims. However, the court found that Kozohorsky, in his objections to the Magistrate's report, sought leave to amend his complaint, and the district court abused its discretion ...
The Eighth Circuit Court of Appeals held that a complaint that contains issues that were not administratively exhausted may be dismissed, but the plaintiff should be allowed to amend his complaint to include only those issues that were exhausted.
Preclude Prisoner Tort Actions
The Oklahoma Supreme Court held that a state statute declaring all persons serving a felony sentence to be "civilly dead" does not preclude them from filing a civil action against a third party. The Court's decision overturns a contrary opinion by the Oklahoma Court of Appeals, Division I, in Welborn v. Wallace, 2001 OK CIV APP 2, 18 P.3d 1079.
The facts underlying the Oklahoma Supreme Court's decision were not in dispute. Faramarz Mehdipour was convicted of a felony, and while incarcerated he filed a tort action against his former attorneys and their firm seeking damages for acts which he alleged constituted an abuse of process. Citing Welborn and 21 O.S.1991 § 65 the trial court dismissed Mehdipour's case, reasoning that his civil rights, including his right to bring a civil action, were suspended during the length of his felony sentence. Mehdipour appealed to the Court of Appeals, Division IV, which refused to follow Welborn and reversed the trial court.
The Oklahoma Supreme Court granted certiorari to resolve the conflict between the Division I and IV decisions. The Court began its analysis with the plain ...
Oklahoma "Civil Death" Statute Does Not
While at Arthur Kill Correctional Facility, Ortiz was charged with misbehavior reports by guard D. McBride for drug possession and drug smuggling. Ortiz passed four urinalysis tests, and the only evidence of guilt was the word of a confidential informant. Without ascertaining the informant's reliability, counselor R.O. Mara found Ortiz guilty and sentenced him to 90 days in a Special Housing Unit (SHU). After completing the sentence, the Commissioner of Correctional Services, without comment, reversed the convictions. Ortiz then filed suit in federal court seeking damages for the time spent in isolation.
The district court dismissed the civil rights action against McBride and Mora because it was without jurisdiction under the PLRA for failure to administratively exhaust the Eighth Amendment claim. That claim alleged that while in SHU Ortiz was denied the daily recreation period generally accorded SHU prisoners; he ...
The Second Circuit Court of Appeals ordered that counsel be appointed to New York prisoner Jose Ortiz to brief the court on whether the Prison Litigation Reform Act (PLRA) requires total exhaustion and whether Ortiz's confinement conditions establish aytpicality under Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L.Ed.2d 418 (1995).
The Ninth Circuit US Court of Appeals held that in prisoner 42 U.S.C. § 1983 civil rights lawsuits where both injunctive relief and damages are won (hybrid cases), attorney fee reimbursement for achieving the injunctive portion of the relief cannot be restricted under the 1996 ...
by John E. Dannenberg
NLPA is a paralegal service that markets directly to criminal defendants. Its founder and president, Hugh Wesley Robinson, is a former attorney permanently disbarred by the Ohio Supreme Court following his conviction for mail fraud. He is not licensed in any other jurisdiction to practice law.
While under federal indictment on drug charges, Willard Johnson, then a prisoner in the St. Claire County Jail, learned of NLPA, requested and received their promotional literature, and ordered his attorney, Philip J. Kavanaugh, III, to hire NLPA to assist in his defense. Kavanaugh refused. Johnson moved to fire Kavanaugh, who simultaneously moved to withdraw as Johnson's counsel.
The Illinois federal district court investigated and found NLPA guilty of unauthorized practice of law. The court found that NLPA's practices were designed to insert doubt into defendants' minds about their attorneys' competency and inverted the attorney-paralegal-client relationship so that the paralegals, not the attorney, directed the case. The court ordered NLPA to change several of its practices, including ...
The U.S. Seventh Circuit Court of Appeals affirmed in part and reversed in part a federal district court's sanctions against National Legal Professional Associates (NLPA) and its leader for unauthorized practice of law.
Hanrahan was charged with leading a prison riot, assaulting a staff member, possessing a weapon, and engaging in violent conduct. At the hearing, Hanrahan requested access to exculpatory evidence, (such as video tapes of the riot and prison recreation schedules) and to call a prison guard as a witness. These requests were denied. Hanrahan's requests for administrative remedies were denied also.
Hanrahan subsequently proceeded to trial on state criminal charges relating to the assault on the guard. His defense lawyer was able to present the evidence denied at the disciplinary hearing. After less than an hour's deliberation, Hanrahan was acquitted by the jury. Another prisoner was subsequently convicted of assaulting the guard ...
The Second Circuit Court of Appeals held that the amount of time a prisoner is sentenced to a Special Housing Unit (SHU) rather than the amount actually served is the determining factor to make a qualified immunity analysis under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). New York prisoner Charles Hanrahan filed this civil rights action alleging his due process rights were violated during a disciplinary hearing that resulted in a 120 month sentence to SHU.
Not Violate Constitution
In two opinions issued the same day, the Oregon Court of Appeals held that holding criminal trials of prisoners in a courtroom inside a prison did not violate the Oregon or United States Constitutions.
Gary Cavan, a prisoner at the Snake River Correctional Institution (SRCI) assaulted a guard, hitting him repeatedly with a "homemade sap." He bit off a piece of the guard's cheek and tried to spit into the guard's mouth. "As he was being led away, [Cavan] raised his arm in a `victory salute.'"
Cavan was charged with several crimes related to the assault and possessing the weapon he used. Due to his "extensive disciplinary record.. his involvement in an earlier violent escape attempt at another facility, and the unprovoked nature of this attack, the state proposed holding [Cavan's] trial in a court room constructed in the visiting area at SRCI." The state argued that Cavan would pose a serious safety risk if transported to a trial outside the prison, and that all but one of the witnesses in the case would be a prisoner or guard. Cavan objected to the state's proposal but the trial ...
Oregon Trial in Prison Did
Not Dischargeable in Bankruptcy
The Washington Court of Appeals held that interest which accrues statutorily on legal financial obligations (LFOs) is not dischargeable in bankruptcy proceedings.
In 1992, Carol Cunningham was convicted of various drug charges and ordered to pay $910.00 in LFOs. She paid the principal but claimed that the $230.52 in interest accrued on the LFOs was a debt discharged by her previous bankruptcy. The State, however, claimed that the interest was not a debt discharged through bankruptcy and that Cunningham's refusal to pay it violated the conditions of her community supervision. The trial court agreed and ordered her to pay the interest, as well as $50.00 in court costs. Cunningham appealed.
The Court of Appeals began its analysis by noting that debts for fines, penalties, or forfeitures in criminal cases are not dischargeable in bankruptcy proceedings. See 11 U.S.C. § 523(a)(7); Kelly v. Robinson, 479 U.S. 36, 50 (1986). Because interest accrual for LFOs is mandatory pursuant to RCW 10.82.090, the appellate court held that such interest is part of the underlying criminal fine and not dischargeable in bankruptcy under 11 U ...
Interest on Legal Financial Obligations
Approved for Dismissed Charge
by John E. Dannenberg
The California Court of Appeals upheld the California Department of Corrections (CDC) regulation permitting administrative labeling of state prisoners as sex offenders even where there had been only an earlier arrest or detention for such an offense. In such cases, CDC adds the prejudicial "R" classification suffix which brands prisoners so as to limit housing, job and visiting options. Here, the court denied the habeas corpus petition of a prisoner convicted of non-sexual offenses to have his sex-offense arrest-record-based "R" suffix removed.
Lionel Farley was sentenced in 1998 to 47 years, eight months for multiple counts occurring in 1997 of assault on a peace officer, conspiracy, attempted burglary, and gun charges plus enhancements. In 2000, a CDC prison classification committee noted that Farley had been arrested in Los Angeles in 1995 for oral copulation. The charge had been dismissed by the prosecutor because of conflicting witness statements, although the charges included a lurid tale of a night of forcible oral copulation, kidnapping, pandering, false imprisonment and unlawful possession of a firearm. Farley successfully plea-bargained down to only the gun charge, with three years felony probation and ...
California Sex Offender Prison Classification Label
Andre Young, a detainee at SCC, sued Dr. Mark Seling and other SCC officials under 42 U.S.C. § 1983, claiming that his constitutional rights were violated when SCC monitored his telephone calls and denied his incoming and outgoing calls from April 18 through September 24, 1998, when his sister was terminally ill. The district court granted summary judgment to the defendants and Young appealed.
The appeals court held that the district court erred in overlooking an injunction issued in 1994 by Judge Dwyer, also of the Western District of Washington, his reaffirmation of that injunction on November 15, 1999, and his published opinion in Turay v. Seling, 108 F.Supp.2d 1148 (W.D. Wash. 2000), also upholding the 1994 injunction. Judge Dwyer specifically enjoined SCC (1) from monitoring residents' telephone calls, (2) from barring outgoing calls other than collect calls, and (3) to allow "prompt ...
The Ninth U.S. Circuit Court of Appeals reversed summary judgment granted by the U.S. District Court, Western District of Washington, to officials at the Special Commitment Center (SCC) for sex offenders at McNeil Island, Washington. This case is part of ongoing litigation. against the SCC, about which PLN has reported extensively.
While Robert Davis was a prisoner at New York's Woodbourne Correctional Facility, prison medical doctors Frank Lancellotti and Mervat Makram delayed placing him on a medically prescribed high fiber diet. Davis filed a grievance against the physicians and then complained that his grievance was ignored.
In retaliation for filing the grievance, John Keane, Superintendent of Woodbourne, allegedly had Davis' cell searched. Later, when Davis filed another grievance, his cell was again searched. Davis complained that the cell searches were retaliatory acts.
Davis further complained that Janice Diehl, a prison mail room clerk, opened a letter from Davis to a state court because he had failed to spell out the full name of the Woodbourne facility on the return address. On another occasion, Diehl opened incoming legal mail outside Davis' presence. Davis filed a complaint in U.S. District Court under 42 U.S.C. § 1983. In March 2001, the court dismissed Davis' complaint with prejudice and in its entirety. Thereafter ...
The U.S. Court of Appeals for the Second Circuit vacated a district court's dismissal of a prisoner's § 1983 lawsuit which complained of prison officials who interfered with his legal mail and retaliated because he filed grievances.
The Second Circuit Court of Appeals held that state prisoners challenging parole revocation decisions in federal court must do so under 28 U.S.C. § 2254, rather than 28 U.S.C. § 2241. The court also held that the one (1) year limitation period applicable to § 2254 actions begins to run when the prisoner is notified that the administrative decision to revoke his parole has become final.
New York prisoner Alonzo Cook was convicted of murder in 1965. He was released on parole on May 10, 1976. However, in 1983, he was rearrested on new criminal charges and his parole was subsequently revoked in 1984.
In 1999, Cook filed a pro se petition for a writ of habeas corpus in federal court under 28 U.S.C. § 2241, alleging that his parole revocation proceedings had been procedurally flawed. The district court concluded that the petition was time barred under 28 U.S.C. § 2244(d)(1) and dismissed the petition.
On appeal, the Second Circuit first determined that "[t]he district court correctly treated Cook's petition as an application under section 2254" rather than § 2241 because, "[b]y its ...
Challenge to State Parole Revocations Must be Brought Under § 2254
for Prisoner's Inadequate Medical Care
The U.S. Court of Appeals for the District of Columbia, reversing and remanding the district court, held that a D.C. prisoner incarcerated in a Virginia state prison stated a claim for relief when he alleged that the district had a custom or policy of transferring its prisoners to corrections departments it knew provided substandard medical care.
Todd Emerson Baker is a prisoner serving a D.C. sentence. The district contracts with the Federal Bureau of Prisons (BOP) and various state corrections departments to house its prisoners. Baker was transferred to the Greenville Correctional Center (GCC), a prison of the Virginia Department of Corrections (VDOC), where Corrections Medical Service (CMS) provides health care under contract to VDOC.
Baker sued the District of Columbia, BOP officials, GCC officials, and six medical personnel, including some CMS doctors, under 42 U.S.C. § 1983, state common law, and the Interstate Corrections Compact. He claimed that prison medical staff committed malpractice and violated his Eighth Amendment rights by deliberately ignoring, misdiagnosing, and failing to treat appropriately an infected facial cyst that ruptured and a leg injury that tore cartilage. He sued ...
District of Columbia May Be Liable
Motion To Exclude Female Prisoners
From Medical Suit
by John E. Dannenberg
The Ninth Circuit U.S. Court of Appeals dismissed on jurisdictional grounds the California Department of Corrections (CDC) officials appeal of the U.S. District Court's order denying the officials' motion to exclude female prisoners from the prisoners' class-action suit to improve CDC's medical care system. CDC had failed to properly preserve its right of appeal, rendering the order merely interlocutory. The order thus fell under 28 U.S.C. § 1291 as being non-final, was not automatically appealable, and therefore did not confer jurisdiction on the Court of Appeals to hear the appeal.
Marciano Plata and other male prisoners had sued CDC officials in a class action complaint alleging that CDC's medical care system was inadequate in violation of the Eighth Amendment, the Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA). CDC had moved to exclude female prisoners from the plaintiff class, which the U.S. District Court (N.D. Cal.) had denied. The female prisoners had already been involved in a similar class action suit, Shumate v. Wilson, Case No. CIV S-95-0619 (E.D. Cal. 2000), seeking ...
Ninth Circuit Dismisses California's
Records Request Litigation
by David M. Reutter
Florida's First District Court of Appeals has held that a prisoner who successfully challenges a public agency's failure to produce public records is entitled to recover all reasonable costs of the litigation. Florida prisoner Dale William Weeks successfully litigated a writ of mandamus to compel the "State Attorney for the First Judicial Circuit to copy and send him certain records that he claimed were public." See: Weeks v. Golden, 764 So.2d 633 (Fla. 1st DCA 2000). Weeks then sought the reasonable costs of enforcing his public records request pursuant to § 119.12(1) Florida Statutes. The trial court denied that motion, but the First District again reversed. See: Weeks v. Golden, 798 So.2d 848 (Fla. 1st DCA 2001).
Upon remand, Weeks sought costs totaling $448.95, which included the filing, fee service of process, postage, envelopes, and copying costs pursuant to the Statewide Uniform Guidelines for Taxation of Costs in Civil Cases (SUGTCC), the trial court only awarded Meeks $140.50, which represents the cost of filing and service of process. Meeks appealed.
The First District found the SUGTCC has been interpreted to ...
Florida Prisoner Awarded Costs in Successful
Ciro Cid Adames, a Texas state prisoner, was housed in administrative segregation because of his affiliation with the Texas Syndicate, a notorious Texas prison gang. Prisoners in administrative segregation are housed alone and remain in their cells for most of the day. Whenever they leave their cells, they are handcuffed and escorted by one or two guards, and only one prisoner at a time is allowed out of his cell.
After deciding he no longer wanted to be in the gang, Adames informed Captain Richard Crites that certain guards were smuggling in drugs for the Texas Syndicate. Several days later, Adames was attacked by another gang member as he returned from the shower.
Adames, handcuffed and escorted by guards Abigail Villareal and Antonio Garcia, was stabbed 13 times before the assailant complied with Villareal's order to ...
The United States Fifth Circuit Court of Appeals has vacated and remanded the jury verdict in a Texas prisoner's failure-to-protect suit because the prisoner had not provided evidence supporting a jury finding of deliberate indifference against prison officials. The jury had awarded the prisoner $30 in compensatory damages and $70,000 in punitive damages after determining that prison officials were individually liable.
Excessive Force, Case Loses At Trial
The U.S. Court of Appeals for the Sixth Circuit reversed a district court's grant of summary judgment favoring certain prison guards who used excessive force and reversed the lower court's exclusion of the Use of Force Committee's Report of a disturbance on Ohio's death row.
On September 5, 1997, prisoners at Ohio's Mansfield Correctional Institution gained control of the DR-4 (death row) section. They allowed the guards to leave, then barricaded the doors and painted the windows.
A Special Response Team (SRT) led by Lieutenant Thomas Moroney was assigned to regain control of DR-4. Moroney's plan, which included the use of explosive distraction and gas devices, was based on the assumption that prisoners had weapons such as broom and mop handles.
According to SRT members, they entered DR-4 and found the prisoners in their cells. After securing cell doors and food slots, they escorted the prisoners to an adjacent warehouse for medical treatment.
The prisoners told a different story. When the disturbance began, Ronald Combs went to his cell and locked himself in. SRT members broke open his cell ...
No Summary Judgment for Ohio Guards Who Used
California: On April 22, 2003, three youths escaped from the Camp Barrett Youth Correctional Facility near San Diego by attacking a guard with a rake and stealing a prison van. The guard suffered a severed ear, broken hand and wrist and deep cuts on his head during the attack. One youth surrendered after the escape, claiming he was in a port-a-potty towed behind the van and had not intended to escape. Police captured the other two youths the day after their escape.
Connecticut: In April, 2004, a civics class from the Lyman Hall Memorial High School visited the Osborn Correctional Institution on a field trip. Several girls in the class were forced to remove their bras in the presence of male classmates and prison guards when the underwire bras set off a prison metal detector ...
California: On April 11, 2004, Matthew Jacquot, 28, a guard at the Orange County jail, was arrested in San Diego on felony vandalism, battery and being under the influence charges after he ran into a Seven Eleven store, broke doors, ripped out a sink and overturned display racks in a drunken rampage in the store. A store clerk and customers subdued him until police arrived.
Michigan prisoner Ronnie Burton brought suit against two nurses and the Health Unit Manager, alleging inadequate medical care and retaliation claims. Attached to his complaint, Burton submitted five grievances regarding his allegations.
Defendants moved pursuant to FRCP 12(b)(6) and 42 U.S.C. § 1997e, to dismiss Burton's retaliation claim for failure to exhaust all available administrative remedies for bringing suit. The district court granted the motion, concluding that Burton's lawsuit, including his exhausted Eighth Amendment medical indifference claim, had to be dismissed without prejudice.
On appeal, the Sixth Circuit noted that its "exhaustion analysis is informed by the Michigan Department of Corrections (MDOC) grievance policies and procedures, as well as circuit caselaw interpreting the requirements of § 1997e." The court then indicated that "for a court to find that a [Michigan] prisoner has administratively exhausted a claim against a particular defendant, a prisoner must have alleged mistreatment or misconduct on the part of the defendant at Step I of the grievance process. In describing ...
The Sixth Circuit Court of Appeals held that a district court erred when it found that a Michigan prisoner failed to exhaust available administrative remedies and dismissed his § 1983 action on that basis.