Monthly Law Journal Article: Legal Issues Pertaining to Inmate Telephone Use, 2008 (2) AELE Mo. L.J. 301.

     A visitor to New Orleans was arrested for public intoxication and placed in the local jail just before Hurricane Katrina struck. He and other pretrial detainees were moved to higher cell tiers when water began rising in their cells, but in their new location, they were in their cells for days without water or food. Eventually evacuated by boat to a highway overpass with thousands of others from local detention facilities, he allegedly experienced additional thirst, hunger, and heat. The failure to bring him to court within 48 hours for a probable cause determination was excused by an emergency situation exception to the general rule, barring his false imprisonment claim. The failure to give him back his cell phone to allow him to call his attorney when the jail phone system was overloaded did not violate his rights under the circumstances because of the dangers of allowing detainees to possess cell phones. There was no liability for the various hardships cause by the circumstances of the hurricane. Waganfeald v. Gusman, #11-30081, 2012 U.S. App. Lexis 5139 (5th Cir.).
     A prisoner sued over the allegedly excessive fees charged by a company providing telephone services to prisoners at a facility. The phone provider paid the prison 45% of the gross revenues provided. The federal appeals court ruled that the prison had no First Amendment obligation to provide any telephone services at all, and also had no obligation to do so at any "particular cost to users." Holloway v. Magness, #11–1455, 2012 U.S. App. Lexis 1961, (8th Cir.).
     A prisoner, whose telephone privileges were suspended, because of his rule violations, five days before his plea hearing, filed a federal civil rights lawsuit claiming that this denied him his Sixth Amendment right to counsel. The days just prior to the plea hearing did not qualify as a "critical stage" of his criminal prosecution, and he did not suffer a complete denial of access to counsel during the entire pretrial period. Further, his rule violations affected security and safety at the jail. Stamper v. Campbell County, #09-5973, 2011 U.S. App. Lexis 5644 (Unpub. 6th Cir.).
      A Florida appeals court held that recordings of inmates' phone calls from jail to their family members and other third parties were not public records subject to disclosure to the media. While monitoring of the calls for security purposes was related to official business of the sheriff's office, maintaining recordings of purely personal conversations was not. Bent v. State of Florida, 46 So. 3d 1047 (Fla. App. 4th Dist. 2011).
    A New Jersey prisoner claimed that his due process rights were violated when he was punished by the loss of 207 days good conduct time for having a cell phone SIM (Subscriber Identity Module) card in his cell. The prisoner failed to present any evidence to support his assertion that he had been "set up" on the charge. The failure to disclose the contents of the SIM card to him was not a violation of his rights. He was charged with possession of the card as contraband, so its contents, such as the identity of the true owner, the phone number, and the calls made were not relevant to exonerating him of the charges. Donahue v. Grondolsky, #10-1147, 2010 U.S. App. Lexis 19097 (Unpub. 3rd Cir.).
     A new federal law, signed by President Obama on August 10, 2010 prohibits the possession and use of cell phones and other wireless devices by prisoners in federal facilities. The law was passed after statistics indicated that the federal Bureau of Prisons confiscated almost 600 such devices from prisoners in secure federal facilities, and over 2,600 from prisoners in minimum security facilities, with some inmates using such phones to direct outside criminal activities. Anyone convicted of attempting to smuggle a cell phone or other wireless device into a federal prison can now face up to a year of incarceration. The statute mandates that a government study on the effectiveness of the law shall be issued in a year.
     A prisoner subjected to disciplinary action claimed that a "de facto" ban on his telephone privileges violated his Eighth Amendment rights. The claim was rejected, as he had not alleged that he had suffered a significant injury or experienced an extreme deprivation. Thomas v. Drew, #09-7669, 2010 U.S. App. Lexis 3077 (Unpub. 4th Cir.).
     A Pennsylvania prisoner filed a lawsuit claiming that a phone company violated various statutory and constitutional provisions by charging increased local call charges and engaging in price gouging, double taxing, hidden fees, and selling prepaid phone cards at inflated prices. He also contended that the Governor's Office of Administration failed to provide necessary safeguards or oversight to protect prisoners from such practices. The court ruled that the lawsuit was essentially over issues of prison conditions, and therefore subject to the requirements of a state Prison Litigation Reform Act. Under that Act, the lawsuit was properly dismissed, as the plaintiff was an abusive litigator, having "three strikes" because two prior lawsuits were dismissed for failure to state a cause of action, and a third prior lawsuit was dismissed for failure to prosecute. Smolsky v. Governor's Office of Administration and Globel Tel*Link Corporation, #207 M.D. 2009, 2010 Pa. Commw. Lexis 114.
     A lawsuit claimed that the portion of the charges for collect telephone calls from inmates paid as a commission to the department of corrections violated the New York Constitution and was excessive. The highest court in the state upheld the dismissal of the lawsuit, ruling that the commissions did not constitute a "tax," the practice of collecting the commissions was not a taking, and the plaintiffs failed to show the absence of a reasonable relationship between the commissions and legitimate penological aims. The court declined to order refunds of the commissions to inmates' families. The commissions were paid to the department under the terms of contracts entered into with phone service providers. Walton v. N.Y. State Dept. of Corr. Servs., No. 149, 2009 N.Y. Lexis 4081 (N.Y.).
    The monitoring and recording of a prisoner's phone calls did not violate the federal Wiretap Act, 18 U.S.C. Sec.2510-2522, since he consented to prison authorities doing so. The subsequent disclosure of information from the calls for law enforcement purposes was authorized by 18 U.S.C. Sec. 2517. There was also no violation of either the Privacy Act, 5 U.S.C. Sec.552a or the Stored Communications Act, 18 U.S.C. Sec. 2701-2711, and no violation of the prisoner's constitutional rights. Bansal v. Pavlock, #08-3740, 2009 U.S. App. Lexis 23717 (Unpub. 3rd Cir.).
     A disciplinary hearing notice that stated the date and time when a corrections officer allegedly found a cellular phone in the prisoner's cell was sufficient and provided enough details to allow the prisoner to dispute the charges and claim that the phone was not his and that another prisoner had thrown it in his cell. While details about where in the cell the phone had been located would have been helpful, the absence of such details did not mean that the prisoner's rights were violated, as the officer's statement that the phone was in the inmate's assigned living area, along with a photo he took of that area provided some indication of this. The prisoner, who did not claim that he was unaware that possession of cell phones was prohibited, could not avoid discipline on the basis that he allegedly failed to receive a memo circulated by the warden explaining this. McGill v. Martinez, #09-1750, 2009 U.S. App. Lexis 22762 (Unpub.3rd Cir.).
     The cost of collect telephone calls placed by inmates to outside persons, which included a commission paid by the phone service provider to the New York State Department of Correctional Services, did not violate the First Amendment rights of the call recipients, when the cost was not so "exorbitant" as to interfere with their right to communicate with the inmates. Walton v. N.Y. State Dept. of Correctional Services, #504552, 2008 N.Y. App. Div. Lexis 9558 (A.D. 3rd Dept.).
      The Americans With Disabilities Act (ADA) does not waive the sovereign immunity of the U.S. government, so that a prisoner who is unable to speak or hear could not pursue ADA claims against the federal government or its employees. The prisoner also failed to exhaust available administrative remedies on his claim that he faced retaliation for his grievances concerning the inability of the prison phone system to provide Spanish translations, so that claim was also dismissed. Fellove v. Heady, Civil Action No. 3:05CV34, 208 U.S. Dist. Lexis 67586 (N.D.W.V.).
    Court rejects prisoner's claim that he was improperly charged and convicted of disciplinary offenses arising out of the finding of a cell phone that prison employees traced back to him. Changing the charge in the charging document to engaging in conduct that disrupted or interfered with security was not improper, since the prisoner had one week after the charge was altered to prepare his defense. The hearing officer did not become the "charging officer" by changing the charging document to reflect the appropriate charge under current prison policies, nor did this show that he was not impartial. Greer v. Hogston, No. 08-1142, 2008 U.S. App. Lexis 15016 (Unpub. 3rd Cir.).
     In a pending lawsuit against prison officials accusing them of "discrimination," "deliberate indifference," and "negligence," the plaintiff prisoner asked for a court order requiring that she be granted four free telephone calls a month, instead of the two free calls from the prison she was already provided. She contended that she would use two of the four calls to call her attorney. The motion was denied, as the court found that the prisoner failed to show that other prisoners were allowed to make such calls to their lawyers that were not included in their monthly allotment of free calls. Bell v. Wallace, Civil Action No. 07-cv-00496, 2008 U.S. Dist. Lexis 9613 (D. Colo.).
     New York court rejects claims by family and friends of prisoners and a non-profit organization providing legal services to inmates challenging the charges for making collect telephone calls from prisoners. State correctional officials and a telephone services provider established a system for collect calls from prisoners under which the correctional system received a 57.5% commission on all such calls. The court rejected the argument that these charges were unlawful under state law, or that equal protection of law was violated under the New York state Constitution. The court found, for purposes of the equal protection claim that the recipients of calls from inmates were not similarly situated to other members of the public. The court also rejected arguments that these charges violated the plaintiffs' rights to free speech and association under N.Y. law. Limitations on inmate phone access, the court noted, have previously been ruled not to amount to a constitutional violation. The right of non-inmates to communicate with prisoners was limited by the rights that the inmates themselves had. Walton v. N.Y. State Depart. of Correctional Services, No. 01-04-ST4340, 2007 N.Y. Misc. Lexis 8605 (Sup. Albany County).
     A prisoner disciplined for engaging in a prohibited third party telephone call at a New Jersey prison had sufficient written material both from that facility and from a Pennsylvania prison at which he had previously been housed, to give him notice that the call he made was forbidden. The use of the Pennsylvania prison's handbook at the disciplinary hearing, rather than the New Jersey prison's handbook, did not violate his due process rights. Further, the hearing officer wrote a detailed report stating the evidence relied on and the reasons for the discipline. Cook v. Warden, Fort Dix Correctional Institution, No. 06-1054, 2007 U.S. App. Lexis 14772 (3rd Cir.).
     Prisoners have no right to unlimited phone access and the assignment of a prisoner with a history of using the phone to carry out criminal activity to a security classification restricting his phone privileges did not violate his free speech rights, and served legitimate interests in public and institutional safety by lowering the possibility that he would use the prison phones for criminal purposes. Perez v. Federal Bureau of Prisons, No. 06-3983, 2007 U.S. App. Lexis 8331 (3rd Cir.).
     In a lawsuit claiming that the rights of family members of prisoners and the rights of others were violated by a contract under which the state correctional department collected a 57.5% commission from the recipients of collect calls from prisoners, the highest court in New York ordered further proceedings on alleged violations of the power to tax, due process, equal protection, and the rights of free speech and association. Such claims were not untimely, as a statute of limitations did not run until a state Public Service Commission (PSC) issued an order in October of 2003 approving the phone rate change in a 2001 contract between the corrections department and phone vendors. Walton v. New York State Dep't of Corr. Servs., No. 12, 2007 N.Y. Lexis 165.
     A federal prisoner's First Amendment rights were not violated by an increase in the long-distance telephone rates at federal prisons. Prisoners had no right to any specific rate for their phone services. Court also rejects equal protection claims since there was no showing that the plaintiff was treated differently than other prisoners, or that there was a discriminatory purpose for the difference in rates between international and domestic long distance rates charged. Harrison v. Federal Bureau of Prisons, No. 1:06cv1182, 2006 U.S. Dist. Lexis 90646 (E.D. Va.). [N/R]
     Prisoner's unauthorized use of a cell phone violated prison regulations barring actions which circumvented telephone call monitoring procedures in place at the facility, and the loss of visitation privileges imposed on him was an appropriate sanction when he had obtained the unauthorized cell phone from a visitor. Rutledge v. Attorney General of the U.S., No. 05-3160, 163 Fed. Appx. 120 (3rd Cir. 2006). [N/R]
     Prisoner's lawsuit against federal prison warden reinstated on claims that his rights were violated by prohibition on him calling his stockbroker to order that stock be sold if the price started falling. Prisoner also stated a viable First Amendment claim based on refusal to allow him to buy a book on computer programming. King v. Fed. Bureau of Prisons, No. 03-2431, 2005 U.S. App. Lexis 14092 (7th Cir.). [2005 JB Sep]
    Woman who voluntarily accepted collect calls from inmates at county detention facilities had no claim for violation of equal protection based on the fact that the county received a 45% commission from the telephone access providers on such calls. Gilmore v. County of Douglas, No. 04-1325, 406 F.3d 935 (8th Cir. 2005). [N/R]
     Prisoner adequately asserted a claim for consumer fraud against a company that provided telephone services to prisoners based on assertions that it fraudulently collected multiple initial calling fees and surcharges by engaging in a practice of deliberating terminating collect telephone calls for the purpose of charging such fees. Flurnoy v. Ameritech, No. 3-03-0516, 814 N.E.2d 585 (Ill. App. 3d Dist. 2004). [N/R]
    Prisoner could not pursue federal civil rights claim over alleged interference with his right of access to the courts based on warden's decision to end his telephone access to legal personnel. The prisoner failed to show that this resulted in prejudice to his ability to pursue non-frivolous litigation. Additionally, the prisoner was not denied access to a telephone system which was monitored, and failed to show that he had submitted a request form to make an unmonitored phone call to legal personnel on that system. Robinson v. Gunja, #03-1262, 92 Fed. Appx. 624 (10th Cir. 2004). [N/R]
     Trial court erred by dismissing class action lawsuit by inmates' family members, friends, and attorneys against Indiana sheriff claiming that contracts entered into with telephone companies caused excessive charges for accepting collect calls from inmates. Additional opinion clarifies that appeals court did not mean to imply, in original opinion, that the proceeds that the sheriff's department receives from phone companies under these contracts become the sheriff's personal property or that the sheriff was personally "pocketing" such funds, but merely that Indiana state statutes are "very precise as to what funds a sheriff can collect, where they go, how they should be spent, and how the funds should be tracked." Alexander v. Cottey, #49A02-0301-CV-32, 801 N.E.2d 651 (Ind. App. 2004), 806 N.E.2d 315 (Ind. App. 2004). [N/R]
     Indiana intermediate appeals court, overturning trial court's dismissal of lawsuit, rules that trial court had jurisdiction to determined whether sheriffs and the state had the authority to enter into contracts with telephone service providers concerning charges for collect calls from inmates and to obtain profits from such charges. Argument that plaintiff prisoners and their families and attorneys had to first exhaust administrative remedies before a state utility regulatory commission rejected. Alexander v. Cottey, No. 49A02-0301-CV-32, 801 N.E.2d 651 (Ind. App. 2004). [N/R]
     Prisoner could not bring claims against the Department of Corrections under the Telecommunications Act of 1996, 47 U.S.C. Sec. 153, et seq., because it is not a telecommunications company or local exchange carrier. Prisoner also failed to state a claim against the Department under federal anti-trust law based on his complaint that phone charges to inmates were excessive. Bowers v. T-Netix, 837 A.2d 608 (Pa. 2003). [N/R]
     Barring prisoners from making phone calls in languages other than English without prior authorization is not a violation of First Amendment rights. Boriboune v. Litscher, No. 03-1747 , 2003 U.S. App. Lexis 26540 (7th Cir.). [2004 JB Feb]
     Some evidence supported disciplinary finding that prisoner had used clandestine cellular telephone without authorization when one number called was only on his approved calling list and other inmates, who had admittedly used the phone, identified him as among the persons who had used it. Sinde v. Gerlinski, 252 F. Supp. 2d 144 (M.D. Pa. 2003). [N/R]
     Recipients of collect calls from Ohio inmates could pursue their claim against counties and telecommunications providers that rates were so unreasonably high as to violate their equal protection right to fundamental freedom of speech and association. Claims against the State of Ohio were barred by Eleventh Amendment immunity, and anti-trust and telecommunications statute claims were not viable. McGuire v. Ameritech Services, Inc., 253 F. Supp. 2d 988 (S.D. Ohio 2003). [2003 JB Aug]
     Department of Corrections telephone access regulations prohibiting three way or conference calls from correctional facility phones were properly adopted to prevent use of phone systems for illegal activities. Statements that a defendant made after being added to a phone call from an inmate to a co-defendant which the Department was monitoring were not "unlawfully" intercepted, when Department did announce to the initial parties to the call that their conversation would be recorded and attempted to prevent additional parties from being added to the call. Commonwealth v. Ennis, 785 N.E.2d 677 (Mass. 2003). [N/R]
     The imposition of discipline on a prisoner for violating the telephone policy by phoning a former inmate on home confinement was a violation of his due process rights when he did not have fair notice that the policy applied to phoning former prisoners confined at home as well as to those now in halfway houses. Seehausen v. Van Buren, 243 F. Supp. 2d 1165 (D. Ore. 2002). [N/R]
     Correctional officials denial of prisoner's access to yard exercise and telephone access for approximately one month when he was classified as having refused a job assignment was not a violation of his rights. After prisoner pursued the proper avenues to get himself classified as medically unable to work, his access to yard exercise and telephone access was restored. Ziegler v. Martin, No. 01-2677, 47 Fed. Appx. 336 (6th Cir. 2002). [N/R]
     Prisoner's lawsuit concerning permanent restrictions on his use of the phone should be dismissed when he failed to comply with the requirements of the Prison Litigation Reform Act (PLRA), 42 U.S.C. Sec. 1997e, that he exhaust available administrative remedies before filing suit. Prisoner filed three administrative grievances concerning restrictions on his phone use, but only pursued appeals on two of the grievances. Smeltzer v. Hook, 235 F. Supp. 2d 736 (W.D. Mich. 2002). [N/R]
     Jail's refusal to allow pretrial detainee access to a telephone to arrange for bail after he was placed in disciplinary segregation for violations of jail rules did not violate his Fourteenth Amendment due process rights. The detainee still had the ability to use the mail and to meet with his attorney in relation to bail issues. Simpson v. Gallant, 223 F. Supp. 2d 286 (D. Maine. 2002). [2003 JB Feb.]
    Pretrial detainee did not have a constitutionally protected liberty interest in telephone usage on the basis of Alaska state statute, and restrictions that were imposed by state jail on his telephone access did not violate his due process or First Amendment rights. Valdez v. Rosenbaum, #01-35300, 302 F.3d 1039 (9th Cir. 2002). [2003 JB Jan]
     Limits on pretrial detainee's telephone privileges in segregation before and after disciplinary hearings did not violate his First Amendment rights. Detainee did not show that his placement in segregation before and after hearings was for a punitive reason rather than reasons of institutional security. Detainee also did not show that any actual injury was caused by his having to use the telephone "while it was noisy or in the evening," instead of directly before and after hearings. Whitfield v. Dicker, #01-3605, 41 Fed. Appx. 6 (8th Cir. 2002). [N/R]
     296:125 State did not violate the rights of prisoners or their families in granting phone companies a monopoly in providing collect telephone services at particular prisons in exchange for half the revenue generated; federal appeals court rejects claim that it should review "exorbitant" rates charged for such calls. Arsberry v. State of Illinois, No. 00- 1777, 244 F.3d 558 (7th Cir. 2001).
     284:126 Federal appeals court rejects prisoner's claim that allegedly "higher" telephone charges for prisoner phone service were the result of a "conspiracy" between a warden and the telephone companies; prisoners did not have any constitutional right to particular phone rates. Johnson v. State of California, #98-55302, 207 F.3d 650 (9th Cir. 2000).
     268:62 Rule restricting prisoners to calling persons on 10-person telephone call list, modifiable at 120-day intervals, was reasonable; monitoring and recording of calls was reasonably related to preventing escapes, introduction of contraband, and perpetration of frauds. Arney v. Simmons, 26 F.Supp.2d 1288 (D. Kan. 1998).
     254:29 Jail watch commander not entitled to qualified immunity for failure to allow arrestee to place a phone call; federal appeals court finds that California state statute clearly established right to make such calls. Carlo v. City of Chino, 105 F.3d 493 (9th Cir. 1997).
     [N/R] Monitoring and recording of prisoner telephone calls did not constitute "interception" of calls in violation of Mass. state law when prisoners and those they talked to on the phone were both aware that calls would be recorded; system did not violate federal wiretap laws since parties receiving calls implicitly consented to recording by accepting call after hearing prerecording message warning them. Gilday v. Dubois, 124 F.3d 277 (1st Cir. 1997).
     241:13 Regulations providing for the recording of all inmate phone calls other than those to attorneys did not violate Fourth Amendment or provisions of the Massachusetts state constitution. Cacicio v. Sec. of Public Safety, 665 N.E.2d 85 (Mass. 1996).
     247:109 Telephone rules restricting prisoners to making calls only to up to ten persons on a list did not violate First Amendment rights to communicate with friends and family. Pope v. Hightower, 101 F.3d 1382 (11th Cir. 1996).
     248:126 Hearing impaired inmate was not "similarly situated" to other inmates for purposes of using a standard telephone, federal appeals court rules, so that failure to provide him with a special telephone adapted for his disability was not a violation of equal protection of law. Hansen v. Rimel, 104 F.3d 189 (8th Cir. 1997).
     230:29 Even if refusal to allow arrestee to make a phone call to her father violated a Tennessee state statute, it did not violate her federal constitutional rights; defendant law enforcement officers were entitled to qualified immunity from liability. Harrill v. Blount Co., Tenn., 55 F.3d 1123 (6th Cir. 1995). [Cross-reference: Defenses: Qualified (Good-Faith) Immunity].
     226:157 Federal Bureau of Prisons regulations on inmate phone calls on new direct-dial (as opposed to collect call) phone system did not violate First Amendment rights of prisoners or persons called; appeals court upholds, however, injunction against use of commissary profits to fund conversion to new system to extent funds were being used for security measures. Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994).
     No first amendment right to phone non-attorney, nonrelative males. Benzel v. Grammer, 869 F.2d 1105 (8th Cir. 1989).