by John E. Dannenberg

The Nebraska Court of Appeals has upheld administrative regulation 205.3 (AR 205.3) of the Department of Correctional Services (DCS), which restricts prisoner phone calls to land-line, nonconference-call recipients and authorizes tape-recording of all non-attorney phone calls. In reversing an earlier district court injunction enjoining AR 205.3, the appellate court found that DCS’s new telephone system was the least restrictive means of accomplishing DCS’s goals of prison safety and security, and did not infringe upon prisoners’ constitutional rights.

In August 1997, Barry McCroy and other Nebraska prisoners sued DCS in state district court under 42 U.S.C. § 1983 for both injunctive relief and damages in regard to DCS’s new restrictive telephone program, the Inmate Calling System (IMS). The IMS established calling schedules and tape recording procedures for all prison phone calls except confidential attorney-client calls (defined as calls to court clerks, bailiffs and bar attorneys). Three-way calls, conference calls and call forwarding were prohibited. Additionally, the IMS limited prisoners to 20 pre-approved numbers and excluded all calls to cell phones, pagers, 800/900 numbers, 411 information numbers, state senators and the media.

In October 1997, the district court entered an injunction barring implementation of the IMS as it applied to the media, courts, attorneys and state senators, with particular attention to prohibiting the recording of any such privileged calls. The injunction also reinstated call-forwarding and conference calls, as well as calls to 800/411 numbers and cell phones. Additional injunctive relief was entered by the court on December 10, 2003 following motions for summary judgment [PLN, June 2004, p.20], and a final judgment ordering the injunction to remain in “full force and effect” was entered on Sept. 28, 2005.

Upon cross appeals, the state appellate court considered the question de novo, using the four-part test established in Turner v. Safley, 482 U.S. 78 (1987). The Court of Appeals noted that an injunction should not be granted unless the party requesting relief can demonstrate a clear right, irreparable injury and the absence of an adequate remedy at law.
Here, the Court found that as prisoners, the plaintiffs did not have a right to phone calls that would transcend DCS’s valid security interests. DCS claimed that the IMS was needed to prevent gang and fraudulent phone communications, which the Court found to be reasonable penological interests. DCS related actual incidents of security breaches prior to implementation of the IMS as a result of phone calls that involved “fraud, drug trafficking, and harassment of victims and witnesses.”

The appellate court balanced these concerns against prisoners’ access to the courts (via phone calls to attorneys) and their rehabilitative need to maintain family contact, and found that when considered in conjunction with prison visitation programs and mail, the IMS did not deny such communications. At worst, the IMS rendered them procedurally more difficult, which did not meet the prisoners’ burden of showing an absence of such communications. As to the plaintiffs’ claims that they were denied access to the courts due to the IMS, they were unable to show any actual denials of court access.

In sum, the Court of Appeals found the district court had erred in determining that the prisoners were entitled to injunctive relief. Accordingly, the permanent injunction entered by the district court was reversed and the case was remanded with instructions to dismiss the plaintiffs’ claims with prejudice. See: McCroy v. Clarke, 2008 Neb. App. LEXIS 91 (Neb. Ct. App. May 6, 2008).

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