The district court agreed and granted a preliminary injunction. Prison officials appealed and the court of appeals for the eighth circuit vacated and remanded.
The appeals court held that the lower court had abused its discretion in granting the injunction because the prisoners had shown neither irreparable harm nor prejudice from the prisons toll free number policy. Court access is viewed as a whole rather than in parts. The appeals court held that because the prisoners ability to file papers in court, meet deadlines and process litigation was not affected, they were not entitled to a preliminary injunction. The case was remanded back to the lower court for further proceedings. See: Aswegan v. Henry, 981 F.2d 313 (8th Cir. 1992).
Iowa state prisoners filed suit seeking preliminary and injunctive relief against an Iowa prison policy prohibiting them from calling their attorneys toll free 1-800 numbers. They claimed this practice violated their right of access to the courts.
The contract covers two types of LEC public telephones. One is services for prisoners who can only make collect calls. The others are public phones for use by staff and visitors which can make collect and pay calls.
The subcontractors and the facilities they service are: GTE for the Washington State Reformatory, Twin Rivers, Indian Ridge and the Special Offender Center. PTI does Clallam Bay, Purdy, Olympic CC, Pine Lodge Pre Release and Coyote Ridge. USWC does Shelton, Walla Walla, McNeil Island, Airway Heights, Tacoma Pre Release, Cedar Creek and Larch.
The DOC does not own the telephone monitoring and recording equipment it has installed. Rather, as part of the contract each telephone company is being contracted to provide and maintain: public telephone sets, all associated equipment, lines, dictaphone recording/monitoring equipment, call timing and call blocking software. Title to all the phones, recording equipment, etc., remains with the contractor. The DOC has agreed to defend against any and all litigation challenging the contractor's provision of call recording and call monitoring equipment. That provision will extend beyond the actual life of the contract, which is for five years.
Each contractor provides the superintendent of each prison with a monthly report that details, by institution, the date, time, payphone number, called number and length of each call made from a prison telephone. Using this information prison officials can target specific phone numbers called or dates and times to choose which calls to listen to after they have been recorded. The Washington DOC policy on phone recording, DOC Policy 450.200, states that the tapes of all phone calls will be maintained for at least a one year period.
With regards to the kickback that the DOC receives from prisoner phone calls the contract states: "7.A In return for the right to provide Inmate and Public Telephone Service under this agreement, Contractor GTE, PTI and USWC shall each pay to the department on a monthly basis the commissions set forth in attachment 1 to this agreement. Each carrier's monthly commission checks shall be sent to the superintendent of each covered correctional institution or work release program, made payable to the Inmate Welfare Fund, unless and until the Department shall specify a different payee for the carriers commission checks."
The commission rates that the contract specifies is 24% of billed revenues from calls carried by ATT, 27% for those calls carried by GTE and PTI, and a whopping 35% for all calls carried by USWC. Needless to say, the telephone companies aren't giving the DOC these commissions out of their profit margin, rather they are adding this on as a surcharge to what they bill the people we call.
The contract states that it is the responsibility of the contractor to abide by the rates established by the FCC (Federal Communications Commission). I've done some preliminary research into this matter and it seems that 47 U.S.C. § 202-207, which prohibits telephone carriers from discriminating among their clients and charging them more, would provide a means by which to challenge this. 18 U.S.C. § 2510 and 2511, limit the conditions in which phones can be tapped or recorded by the government. The law applies to prisons, See: Kimberlin v. Quinlan, 774 F. Supp 1 (DC DC 1991); United States v. Amen, 831 F.2d 373 (2nd Cir. 1987); but has been held not to apply to prisoners' calls because prison officials are considered law enforcement personnel. See: United States v. Noriega, 917 F.2d 1543 (11th Cir. 1990); Lee v. Carlson, 645 F. Supp 1430 (SD NY 1986).
My thinking is that a challenge to both the extortionate surcharge and the monitoring would have to be brought by the outside person receiving the phone call. As a matter of standing the prisoner making the call is not affected because they don't pay the phone bill and are not being provided with the service. Thus the prisoner does not have standing to challenge the practices. There are other issues as well such as the outside person's right to choose the carrier that carries the call, etc. The outside people can challenge the fact that their right not be charged discriminatory prices under 47 U.S.C. § 202-207 is being violated by this practice. They can also assert their right to privacy under the fourth amendment concerning the telephone recording/monitoring. All the published cases ...
On March 16, 1992, the Washington DOC signed a contract with AT&T (American Telephone and Telegraph) for the latter to provide telephone services to all the prisons in the Washington prison system. AT&T in turn has subcontracted with three Local Exchange Companies (LEC's) to provide local telephone service.
Ruling in Casey v. Lewis, a class action lawsuit brought on behalf of all Arizona prisoners, Muecke wrote that the Department of Corrections' system for allowing prisoners access to the courts "fails to comply with constitutional standards."
"It's an important victory for the Constitution," said Stuart H. Adams, Jr., a lawyer with the National Prison Project of the American Civil Liberties Union in Washington, D.C., which represents the prisoners. "The right to petition the courts is in many ways the most basic and important right prisoners have." In a 36-page opinion, Muecke found that prison officials failed to provide adequate legal assistance to prisoners in segregated housing, and to those who are illiterate or do not speak English; failed to provide confidential photocopying services for prisoners' legal documents; and arbitrarily denied prisoners confidential telephone calls with their attorneys. Muecke added that he will appoint a Special Master to work with lawyers on both sides of the lawsuit in developing an order to remedy ...
Prisoners in Arizona have been denied adequate means to communicate with lawyers, perform legal research, and otherwise receive legal assistance, according to a recent decision by United States District Judge Carl Muecke in Phoenix, AZ.
Richard sends us a letter from the lawyer handling the case advising that U.S. Sprint had halted the practice of announcing that calls were originating from prisons. This is a major victory! Readers should note that Richard also sued U.S. Sprint (the telephone service provider) under the Federal Communications Act (FCA) of 1934 for their participation in the South Carolina DOC's phone announcements. Apparently corporate lawyers are more willing to stop an unlawful practice than state attorney generals. When corporate lawyers litigate it costs their shareholders money and there is accountability. When the attorney generals office litigates losers into the ground there is no accountability and, as a lieutenant at Walla Walla once told me about litigation costs "it's just taxpayers money anyway."
Any suits challenging telephone service and provisions should include the telephone company as well and ...
PLN recently reported that Creations , a prisoner rights group in North Carolina, had filed suit concerning the practice of U.S. Sprint operators of announcing the fact that a call was originating in a prison and the limitations on phone services available to prisoners. We have recently received an update from Richard Davis, the plaintiff in the suit.
The suit directly challenges the philosophy behind the "supermax" control unit prison, both at Westville and another "supermax" under construction in Sullivan, IN. The plaintiff class is currently over 80 men housed at the MCC. The suit claims that Indiana prison officials have violated state law by administratively housing prisoners in MCC for long periods of time when Indiana statutes limit the conditions where prisoners can be segregated. The criteria for MCC placement is vague, subjective and discretionary allowing prisoners to be placed in MCC in ...
On May 4, 1992, the Indiana Civil Liberties Union filed a class action suit in the Marion County, Indiana, Superior Court. The action is Taifa Vs. Bayh, and challenges numerous conditions of confinement at the Westville, IN, Maximum Control Center. It is interesting to note the action is being filed in state court. Because the suit claims prison officials have violated several state statutes only a state court can rule on the state law claims. It may also be that the Indiana state constitution provides more protection than the federal constitution. In recent years the US Supreme Court has steadily narrowed the scope of 8th amendment protection available to prisoners from the federal courts.
The prisoners allege that the telephone company practice of announcing to would be recipients of prisoner telephone calls that the caller is in prison is unconstitutional and violates their right to freedom of speech. The Federal Communications Act makes it unlawful for telephone companies to engage in any type of discriminatory practice or subject any person or class of persons to undue prejudice or disadvantage. The Act provides for damages from the carrier for any such violations.
A copy of the complaint, Federal Communications Act, Motion for Temporary Restraining Order, etc., are all available for $2.00 or seven 29¢ stamps from: Creations, P.O. Box 2403, Burlington, NC 27216-2403.
South Carolina prisoners have filed a class action suit under 42 U.S.C. 1983 and 47 U.S.C.201(b) and 202(a) of the Federal Communications Act. The defendants are officials in the South Carolina DOC and the U.S. Sprint telephone company.
Billy Tucker was arrested and jailed in Kendall County, Ill. At the time of his arrest he was bloody and had a broken hand and ribs. He was taken to a hospital and washed but not treated for his broken bones. He was denied medical treatment for his broken bones for the entire nine and a half months he was in the Kendall County jail. As a result, he suffered permanent physical deformations. For four days he was also denied access to a phone, after which he was only allowed to use a monitored phone. Tucker filed suit under 1983, claiming violation of his 8th and 14th amendment rights.
The district court dismissed his complaint for not responding to defendant's motion to dismiss portions of his complaint. The court did so without ruling on Tucker's motion to appoint counsel.
On appeal, the 7th Circuit Court of Appeals reversed and remanded the case. The court of appeals held that Tucker's complaint should not have been dismissed unless the district court first notified Tucker of the consequences of not following the briefing schedule. The court also held that the district court ...
Counsel Appointed In Denial Of Telephone, Beating Claim
Needless to say, this new system is not a big hit with C.B.C.C. prisoners. Indeed, since many of the families and loved ones of prisoners are poor, they cannot afford the more expensive touch-tone phones. This of course has the effect of denying phone rights to those men with the poorest families.
Look for the arrival of this "brave new world" of phone service at a prison near you.
Starting on August 8th, prisoners at C.B.C.C. were treated to a new phone service, one run by a computer. You pick up the phone ant the machine asks for your name and the number you want to call. It hen dials the number and tells the person at the other end: "Will you accept a collect call from Such and Such, who is a prisoner in a correctional institution? If so, press `three' on your touch-tone phone." The electronic operator then times your call, and after nine minutes warns you that you have one minute left. At ten minutes the phone is automatically cut off.