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Abdulrazzak v. Smith

United States District Court, D. South Dakota, Southern Division

September 25, 2018

J.C. SMITH, in his individual and official capacity; DUSTI WERNER, in his individual and official capacity; JOSHUA J. KAUFMAN, in his individual and official capacity; F/N/U BERTSCH, in his individual and official capacity; and JOHN DOE 2, in his individual and official capacity; Defendants.



         Plaintiff, Haider Salah Abdulrazzak, is an inmate at the Mike Durfee State Prison in Springfield, South Dakota. He filed a pro se civil rights lawsuit under 42 U.S.C. § 1983. Docket 1. Defendants now move for summary judgment. Docket 81. Abdulrazzak opposes the motion. Docket 99. Abdulrazzak has also filed various miscellaneous motions.


         Viewing the evidence in the light most favorable to Abdulrazzak, the facts are:

         Abdulrazzak is a forty-three years old citizen of Iraq. See Dockets 82-11 and 101 at 1. He was admitted to the United States as a refugee on June 30, 2009. Id. A Minnehaha County Grand Jury indicted Abdulrazzak on 14 counts of possessing, manufacturing or distributing child pornography in violation of S.D.C.L. § 22-24A-3 on September 9, 2010. Docket 33-4. A jury later returned a guilty verdict on all 14 counts. On December 20, 2011, Abdulrazzak was sentenced to serve consecutively a custody sentence of three years, with two years suspended, on the first six counts and of three years, with one year suspended, on count seven. Docket 82-7. No sentence was imposed on counts eight through fourteen. Id.

         The Department of Homeland Security (DHS) issued an “Immigration Detainer-Notice of Action” on January 17, 2012. See Dockets 82-14 and 86 ¶ 4. The detainer stated that the local United States Immigration and Customs Enforcement (ICE) Office had “initiated an Investigation to determine whether [Abdulrazzak] is subject to removal from the United States.” Docket 82-14. DHS requested that the South Dakota State Penitentiary (SDSP) “maintain custody of [Abdulrazzak] . . . beyond the time when [Abdulrazzak] would have otherwise been released from your custody to allow DHS to take custody of the subject.” Id.

         Notice of Parole Conditions

          Abdulrazzak was initially paroled on June 25, 2014 and transferred to ICE custody under the Immigration Detainer. Dockets 10-1 at 7 and 86 ¶ 5. Prior to his release into ICE custody, Abdulrazzak signed his first Parole Standard Supervision Agreement (2014 Agreement). The 2014 Agreement included the following provision:

Upon release from any hold status I will return immediately by phone to the S.D. Interstate Parole Office at 605-782-3153 and return to S.D. as directed. Failure to do so will constitute a violation of parole. Upon return to S.D. I will turn myself in to [Admission & Orientation Unit] at the South Dakota State Penitentiary in Sioux Falls, South Dakota for assessment and placement into the CTP program.

Docket 33-2. The 2014 Agreement did not require Abdulrazzak to undergo sex offender treatment. Id. It is undisputed that the 2014 Agreement referred to an “assessment” upon return to the SDSP and before release into the community. Docket 33-2.

         Defendants allege that Abdulrazzak was initially not required to undergo sex offender treatment because he faced possible deportation from the United States. Docket 86 ¶ 6. Defendants claim sex offender treatment during this initial parole was premature and unnecessary. Id. Abdulrazzak disagrees. He alleges that his risk criteria required that he complete Sex Offender Treatment before being released on parole and that this requirement was hidden from him. Docket 101 at 2. Abdulrazzak further alleges that defendants informed other inmates, with the same risk criteria as Abdulrazzak, that they were required to complete sex offender treatment prior to being released on parole. Docket 31-1 at 6. Abdulrazzak alleges that if defendants had discussed these parole requirements with him, he would have invoked his Fifth Amendment rights. Id.

         Abdulrazzak was released from the ICE hold on April 20, 2016, because he temporarily settled his immigration case. Dockets 86 ¶ 8 and 82-15. As required under the 2014 Agreement, Abdulrazzak reported to the Admission & Orientation Unit at the South Dakota State Penitentiary. Dockets 86 ¶ 9 and 82-16. Dusti Werner was then assigned to serve as Abdulrazzak's parole agent. Docket 86 ¶ 9.

         Defendants allege that Abdulrazzak was required to have a Pre-Release Psychosexual completed before he could be placed into the Community Transition Program. Dockets 86 ¶ 8 and 82-15. The 2014 Agreement even referred to an “assessment” before release into the community. Docket 33-2. Based on his conviction, Abdulrazzak met the criteria for being a sex offender under SDCL § 22-24B-1. See Docket 84 ¶ 3. Under South Dakota Department of Corrections (SDDOC) Policy 1.4.A.3, SDDOC will “offer the Sex Offender Management Program (SOMP) to offenders assessed as needing sex offender treatment.” Id. ¶ 4. The policy requires a psycho-sexual assessment to be completed and supplied to the Board of Pardons and Paroles and the Warden. Id. Abdulrazzak disputes that he was required to complete a pre-release psychosexual assessment, because he contends that he was pre-release status before his initial parole into ICE custody. Docket 101 at 2.

         On April 27, 2016, Joshua Kaufman interviewed Abdulrazzak for the interview portion of his Pre-Release Psychosexual Assessment. Dockets 82-1 and 84. The Pre-Release Psychosexual Assessment noted that Abdulrazzak had not completed any form of institutionalized sex offender treatment and recommended that Abdulrazzak “should be required to complete weekly, group sex offender treatment for a period of 18 to 24 months.” Dockets 82-1 at 4. The assessment also recommended that Abdulrazzak “should be required to complete individualized sex offender specific treatment in the community prior to his release.” Id.

         On April 28, 2016, Abdulrazzak signed a “STOP contract” where he agreed to “be completely honest and assume full responsibility for [his] offense(s) and sexual behavior.” Docket 82-3. Abdulrazzak contends he never agreed to complete STOP because it was not discussed when he was initially paroled under the 2014 Agreement. Docket 101 at 3. Abdulrazzak alleges that he first learned about STOP on April 27, 2016. Id.

         On April 29, 2016, Abdulrazzak signed a new Parole Standard Supervision Agreement (2016 Agreement). Docket 33-3. Like the 2014 Agreement, the 2016 Agreement included the provision that Abdulrazzak must “participate, cooperate, and complete any programs as directed.” Id. This agreement also included the following provision:

OTHER: 1. Register as a sex offender according to local and state laws.
2. No contacts with victims or anyone under 18 years of age, unless approved by treatment provider and parole agent in advance.
3. You shall not socialize, date, form a romantic or sexual relationship, or marry anyone with physical custody of children under 18 years of age.
4. You shall submit, at your own expense, to any program of psychological or physiological assessment and monitoring at the direction of parole agent or treatment provider[.] This includes, but not limited to the polygraph, plethysmograph, and Abel Screen to assist in treatment, planning and case monitoring.
5. You shall notify third parties of your complete criminal record, permit the parole agent or treatment provider to confirm compliance with this notification requirement and make any other notifications as the parole agent deems appropriate. You shall inform all persons with whom you have an established or ongoing relationship about your complete criminal history.
6. You shall not go to or loiter near school yards, parks, playgrounds, swimming pools, arcades, or other places primarily used by children under the age of 18 years old.
7. You shall not be employed or participate in any volunteer activity where you have contact with children under the age of 18 years old unless approved by treatment provider and parole agent.
8. You will not own, operate, or possess any cell phone with a camera, internet access, or text messaging.
9. No computer internet/on-line access or use without prior approval of parole agent and treatment provider. Any internet use will be subject to monitoring at the discretion of the parole agent or treatment provider.

Docket 33-3 at 2. Abdulrazzak contends this is a “modified” agreement and he signed it under duress. Docket 101 at 3.

         On May 17, 2016, Abdulrazzak signed an Individualized Supervision Agreement for the South Dakota Department of Corrections Sex Offender Management Program. Docket 82-2. A translator from A to Z World Languages, parole agent Werner, treatment provider Joshua Kaufman, and Abdulrazzak were present at this meeting. Docket 86 ¶ 28. Defendants allege that, by signing the Individualized Supervision Agreement, Abdulrazzak agreed to “attend and participate in weekly individualized supervision meetings with [his] treatment provider and parole officer.” Dockets 82-2 and 86 ¶ 6. And Abdulrazzak agreed that he would “honestly review all of my sexual behavior including all of [his] sexual behaviors including all of [his] sexual relationships.” Abdulrazzak also agreed to “take clinical polygraph examinations at least every 3 months while [he is] in the community.” Dockets 82-2 and 86 ¶ 17. Werner, assisted by a translator from A to Z World Languages, also reviewed the 2016 Agreement. Docket 86 ¶ 28. Under the 2016 agreement, Abdulrazzak agreed to “participate | cooperate | and complete any programs as directed” and to “comply with all instructions in matters affecting my supervision | and cooperate by promptly and truthfully answering inquiries directed to me by a Parole Agent.” Docket 33-9.

         Revocation of Parole

          On October 27, 2016, Werner submitted a Violation Report that Abdulrazzak was “non-compliant in regards to his sex offender programming and was subsequently terminated from community-based sex offender programming.” Dockets 33-9 and 87 ¶ 12. The Report noted that Abdulrazzak “had multiple instances in which he did not comply with directions given to him such as completing some of his homework assignments.” Docket 33-9. “He also left the unit when he was instructed that he could not.” Id. at 2. Abdulrazzak contends that he complied with treatment and answered all questions truthfully. Docket 101 at 4.

         As part of the sex offender programing, Abdulrazzak was “assigned homework which was to be reviewed with the program provider and Agent Werner.” Dockets 86 ¶ 22, 82-5, 82-34 at 10-14. Werner alleges that there were occasions where Abdulrazzak “failed to complete the assigned homework in the time allotted” and had to be “given more time to complete the homework.” Dockets 86 ¶ 23 and 82-34 at 13. And occasionally when Abdulrazzak attempted to complete the assignments asked of him he “would copy the examples instead of coming up with his own.” Docket 33-9.

         At the direction of his treatment provider, Abdulrazzak was scheduled to take “an instant offense polygraph” on October 19, 2016 “to determine where his programming should go as he was continuing to deny and make no progress.” Docket 33-9 at 2. The day before the exam, Abdulrazzak told Werner that he was “ready for it” and “would pass no problem.” Dockets 86 ¶ 28 and 82-34 at 22-23. Abdulrazzak alleges he made these statements under the threat of a parole violation. Docket 101 at 5.

         At the scheduled exam, Abdulrazzak expressed concern that the outcome of the polygraph would be used to bring about new criminal charges or affect his ongoing habeas corpus proceeding. Dockets 82-24 and 101 at 5. Abdulrazzak claims he “was informed that the outcome of said polygraph would be used to bring new criminal charges.” Docket 101 at 5. Defendants allege that the polygraph examiner “attempted to re-assure him that the exam was solely for his treatment assessment and parole status.” Dockets 82-24 and 86 ¶ 30. But the examiner determined that a polygraph exam should not be administered “[b]ased on [Abdulrazzak's] reservations and the fear of violating [Abdulrazzak's] civil rights.” Docket 82-24. The examiner explained that “until he had this resolved with his attorney I could not ethically give him the polygraph exam.” Id.

         Abdulrazzak's attorney later contacted Werner and stated that she was “fine with him taking the polygraph.” Dockets 86 ¶ 32 and 82-25. Abdulrazzak's attorney further advised Werner that Abdulrazzak would like to take the polygraph. Docket 86 ¶ 35 and Docket 82-25. Abdulrazzak was provided with an opportunity to take a polygraph exam again on October 24, 2016. Docket 33-9 at 2. The Violation Report stated that “[d]uring this exam, Mr. Abdulrazzak blatantly failed to follow directions but the exam was still valid and found that Mr. Abdulrazzak was deceptive in regards to questions about committing the crime he was serving time for.” Id.

         After the failed polygraph exam, Werner alleges that she verbally directed Abdulrazzak not to leave Unit C. Docket 86 ¶ 51. Abdulrazzak alleges that he did not leave Unit C without permission. Docket 101 at 7. But Abdulrazzak stated that he left Unit C on October 25, 2018 to attend his driving license examination at 10:00. Docket 82-34 at 20-21.

         Dakota Psychological Services (DPS) sent Abdulrazzak a treatment termination letter dated October 31, 2016, stating that he “has not responded to various treatment efforts provided so far DPS to help him work through his denial and address the sexual problems indicated by his conviction.” Docket 33-9 at 4. Abdulrazzak claims that this letter “did not present any kind of problems in my answer to defendant Kaufman.” Docket 101 at 6.

         On March 13, 2017, there was a hearing before the Board of Pardons and Paroles as to whether Abdulrazzak's parole should be revoked. Docket 36-1. The Parole Board determined that Abdulrazzak violated both Conditions 10 and 13E of his Supervision Agreement. Docket 36-1. The Parole Board found that “explanations offered by the inmate do not mitigate, justify or excuse conduct while on supervision.” Id.

         Access to Documents

          After release from ICE custody, Abdulrazzak returned to SDSP with a large box of legal documents and paperwork. Docket 82-15 at 2. Abdulrazzak alleges that he was working on a state habeas petition and a motion to reconsider/reopen his immigration case. See Docket 101 at 12-14. Abdulrazzak alleges that he needed digital material on a CD for his immigration case and a USB drive for his habeas case. Docket 101 at 10.

         Abdulrazzak maintains that Werner knew he needed access to digital information but denied him that access. Docket 31-1. As a result, Abdulrazzak alleges that he missed deadlines, although he does not specify whether it was in his state habeas corpus case or immigration case. Docket 10-1 at 15.

         Werner alleges that she first learned about the box of legal materials from an April 19, 2016 email. Dockets 86 ¶ 58 and 85-15. Werner and Abdulrazzak later discussed the legal materials at their first meeting on May 10, 2016. Werner's notes read:

Agent Schaaf and I met with Haider at intake in Jameson today. He was upset that he couldn't get paperwork done for his immigration. I told him I would get him the paperwork he needs, he said he keeps it on a disc in his property. We explained to him that he cannot be in the library as he stated he would go due to his sex offense and cannot be on a computer since he is not allowed to use the internet. He stated he needed it to get his paperwork completed as his handwriting is not good. He went back and forth on his story about his paperwork being due Friday, then Thursday, then 30 days. He also kept stating that we were keeping him from filing his legal paperwork. He was explained that he may complete his paperwork, but could not use a computer to do so. To assist him, I requested that his paperwork in property be moved to Unit C for him to work on. I also told him that I would pick him up Tuesday morning for our appointment and bring him here, that if I could get him an ICE appointment, I would bring him there after. He also requested I set up an appointment [sic] with Julie Hofer, his public advocate that day. I told him I would try to get in contact with her. He was placed on GPS by the Glory House as I was leavign [sic].

Docket 82-28. Abdulrazzak alleges that he was never allowed access to his digitally stored legal documents. Docket 101 at 9.

         After their initial meeting, Werner contacted the Sioux Falls ICE office. Dockets 86 ¶ 87 and 82-38. In a May 10, 2016 email to Deportation Officer Darin Gergen, Werner indicated that she “would like to know the next steps in regards to Mr. Abdulrazzak as I am not familiar with the ICE process and how goes about getting a work permit.” Dockets 86 ¶ 87 and 82-38. Werner does not claim that she ever asked about Abdulrazzak's immigration case or any possible deadlines.

         Werner also contacted Abdulrazzak's public advocate Julie Hofer. Hofer was appointed to represent Abdulrazzak in his state habeas corpus case. Docket 82-8 at 2. Hofer informed Werner that “All the paperwork she needed for his legals had been filed a year and a half ago.” Docket 86 ¶ 68. Hofer stated that there were “no more deadlines and the information [Abdulrazzak] is trying to get to her (his personal arguments) will not be what she uses as her argument.” Werner contacted Kingdom Boundaries about supervising Abdulrazzak's computer use. Dockets 86 ¶ 79 and 82-20. The Kingdom Boundaries' computer was available on July 7, 2016. Id. Werner also consulted the Sex Offender Management Program in an attempt to find a way for Abdulrazzak to use a computer. Docket 86 ¶ 67.

         At a May 31, 2016 meeting, Abdulrazzak asked Werner for more hours to use the Department of Labor computer. Dockets 86 ¶ 69 and 82-32. Werner responded that “[i]f his lawyer verified that he needed the 3 days that he requested to work on his argument” she “would give him the time.” Id. On June 7, 2016, Werner again contacted Hofer and stated that they needed to figure out how to get Abdulrazzak to a computer that did not violate his parole agreement. Dockets 86 ¶ 70 and 82-19. Werner again asked if there were any impending deadlines and Hofer responded that there were no upcoming deadlines. Dockets 86 ¶ 72 and 82-37. At some intervening time, Abdulrazzak went to the Department of Labor and learned he could not use its computers because they are for job searches. Id.

         At a June 14, 2016 meeting, Abdulrazzak asked Werner for three more hours for community use. Dockets 86 ¶ 73 and 82-32. Werner denied the request explaining that there was nowhere appropriate for Abdulrazzak to use a computer in the community. Id. Werner provided Abdulrazzak two options: Abdulrazzak could complete his work by hand as there was no need for it to be typed or Abdulrazzak ...

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