The court of appeals for the Eighth circuit, sitting en Banc, held that a Missouri jail prisoner had stated a constitutional claim because he was held in a six foot by six foot cell for 72 hours at a time and allowed only one fifteen minute shower, no-contact visit, phone call and exercise period per week. Plaintiff also claimed he was bitten by rat in the vermin infested jail. Jail admitted it knew of jail conditions but lacked resources to correct them due to staff shortages. The district court entered a JNOV dismissing the suit. Appeals court reversed and remanded in part. Appeals court noted that certain substantive constitutional rights are redressible by substantial compensatory damage awards independent of actual injury. This ruling may be useful to those challenging the "physical injury" requirement of the PLRA. See: Villanueva v. George, 659 F.2d 851 (8th Cir. 1981) (en banc).

Affirming the decision of the U.S. District Court of Maryland, the U.S. Fourth Circuit Court of Appeals held that prisoners of the Bureau of Prisons (BOP) consent to have their telephone calls monitored and taped and that the Federal Bureau of Investigation (FBI) can obtain these tapes by subpoena for any lawful use, including criminal investigation and prosecution.

Donte Hammond, a BOP prisoner, made several telephone calls to Queen Tynes. The FBI became suspicious of Tynes' testimony on Hammond's behalf. FBI officials subpoenaed all BOP tapes of telephone calls made by Hammond to Tynes. Hammond was then indicted on 11 counts of witness tampering and obstruction of justice.

Hammond moved to suppress evidence from the telephone, arguing that the FBI needed a wiretap order under 18 U.S.C. § 2510, et. seq. The district court disagreed, and Hammond appealed.

The Court of Appeals noted that Hammond was informed in his prison handbook and twice during orientation that all calls other than attorney calls are monitored. Further, Hammond signed a consent form agreeing to monitoring. It found that Hammond's consent was an exception to the wiretap laws. No warrant was required. A subpoena sufficed to obtain Hammond's conversations.

Further, once subpoenaed, the ...

In this criminal proceeding, the Supreme Court of California held that evidence from a car towed from defendant's apartment was admissible, but evidence from a tape-recorded conversation between the defendant and his wife was not. After his arrest, defendant's wife was permitted to visit with him in a detective's office. The conversation was tape-recorded without her knowledge. Defendant moved to suppress all evidence, both from the car and the conversation. Motion was denied by the trial court. In a mandamus review, the Supreme Court of California held: 1) Evidence obtained from the car was admissible as it was in plain view of police. 2) Defendant had a "reasonable expectation of privacy" in his conversation with his wife; therefore, evidence from the tape-recorded conversation should have been suppressed. See: North v. The Superior Court of Riverside County, 8 Cal.3d 301 (1972).

The New Hampshire Supreme Court has held that the federal filed
rate doctrine preempts, state causes of action for violation of the anti-
monopoly statute and the Consumer Protection Act (CPA). This action was
brought by friends and family of New Hampshire State Prison prisoners who
receive and pay for interstate collect calls from prisoners. The
defendants, MCI Worldcom, ICO Teleservices, and ICO Telecommunications,
provide telephone services that require the prisoners to make collect only
calls at the defendants' rates. The trial court denied the defendants'
motion to dismiss the suit.

Under federal law 47 U.S.C. § 203(a), common communication
carriers, such as the defendants, are prohibited from charging rates or
from providing related services other than as set forth in the applicable
tariff. This is referred to as the filed rate doctrine." Where the
filed rate doctrine applies, state law claims are preempted. The filed
rate doctrine not only forbids a regulated entity to charge rates for its
services other than those properly filed with the appropriate federal
regulatory authority," but also forbids a subscriber to avoid paying the
tariff rate by invoking common-law claims and defenses such as ignorance,
estoppels, or prior agreement to a different rate." The ...

The U.S. District Court of Maine held that denial of detainee's access to
mail and telephone privileges were unreasonable disciplinary measures.
Jeffery Simpson, a pre-trial detainee, while at the Penobscot County jail,
violated jail rules. He was placed in disciplinary segregation for
approximately three months. During this time Simpson was denied access to
phone and his mail was restricted to only three personal letters per week.
Simpson filed a request to use the phone and to additional mail access.
When he was denied he filed grievances which were also denied.

After Simpson was released from the county jail he filed suit under 42
U.S. § 1983. Simpson claimed he was denied a constitutional right to
prepare his defense and to make bail. He alleged that due to the
interference with his mail and phone access he could not properly
determine who to have his investigator interview, which caused a delay in
the preparation of his defense and subsequent acquittal.

Defendants filed a motion to dismiss under FRCP Rule 12(b)(6). Using Heck
v. Humphrey, 112 S.Ct. 2364 (1994), they argued that Simpson lacked
standing since he had not had his disciplinary case overturned.
The District Court determined that restricting access to ...

The U.S. Supreme Court held that a plaintiff in a 42 U.S.C. §1983
action is not required to plead the defendant acted in bad faith. Carlos
Riviera Gomez, a Puerto Rico police officer, was subpoenaed to testify in
a criminal case that the evidence was false. Gomez had submitted a sworn
statement to his supervisor that two other agents had offered false
evidence in a criminal case under their investigation. As a result of the
statement, Gomez was transferred to several other units where he had no
investigative authority. After an investigation was conducted, it was
discovered all of his allegations were true. After complying with the
subpoena and testifying for the defense that the evidence was false,
charges were brought against Gomez for wiretapping violations and he was
fired from the police department without a hearing. The District Court
dismissed the wiretapping charges. Gomez also sought review of his
discharge. After a hearing, the discharge was revoked and he was ordered
reinstated with back pay.

Gomez then filed a § 1983 action seeking damages; he contended the
discharge violated his right to procedural due process and caused him
anxiety, embarrassment and injury to his reputation in the community. The ...

The Supreme Court of New York held that any restraints imposed
upon pre-trial detainees in excess of assuring their attendance at trial
constituted deprivation of due process, which included limitations on
telephone use, receiving and sending letters, non-contact visiting
periods, the receipt and reading of magazines and newspapers, medical
care, and religious services.

A pre-trial detainee filed a declaratory judgment and permanent
injunction suit against Roy J. Wullick, Sheriff of Genesee County, New
York. The detainee argued that pre-trial detainees were not receiving the
same rights and privileges as convicted prisoners -- rights which to which
they were entitled under the U.S. and New York Constitutions, and the
corrections law of New York. The Court held that the requirement that
visitors to pre-trial detainees be over 18 years of age was improper.
Wullick argued that children under 18 years of age were at risk of the
sight of shocking conduct." The Court held that informed parents are the
best judges of whether or not an experience is good for their own
children, that the Sheriff does not stand loco parentis" as to his
prisoners' children, and arguing that children would see shocking
conduct" cast a terrible reflection upon the supervision ...

The U.S. District Court for the Northern District of Indiana denied a
motion by the Allen County, Indiana sheriff and two sheriff's deputies,
defendants, for judgment notwithstanding the verdict (JNOV) or a new trial.
A former county jail prisoner who was placed on suicide watch sued the
sheriff challenging the constitutionality of the jail's policy; also named
in the suit were two deputy jail guards who he alleged violated his
constitutional rights by denying him water, hygiene items, visitation
privileges, telephone access, writing materials and postage. The prisoner
further alleged the guards disclosed he had AIDS and that they had shown
deliberate indifference to his medical needs.

A jury awarded the prisoner $200 in compensatory damages against the
sheriff, $1,000 in punitive damages against each of the two deputies, and
compensatory damages of $600 against all three defendants. Defendants
motioned for JNOV or for a new trial in the alternative. The District Court
held: 1) The evidence was sufficient to uphold the jury award, as testimony
supported the prisoner's claims. 2) The evidence was sufficient to warrant
instructions on punitive damages to the jury. See: Bird v. Figel, 725
F.Supp. 406 (N.D.Ind. 1989).

A mental patient imprisoned at a treatment center run by the Massachusetts
DOC brought a § 1983 action alleging constitutional violations relating to,
among other things, inadequate telephone privileges, right to unopened
privileged mail and right to treatment. A Superior Court issued an
injunction ordering prison officials to comply with regulations regarding
"process and delivery of plaintiff's mail and telephone access." In
addition, prisoner's refusal to volunteer to be double bunked could not
affect his privilege status. However, the Superior Court refused to award
attorney fees and the prisoner appealed.

A Massachusetts appeals court held that according to the standards set
forth by the U.S. Supreme Court, the prisoner was the "prevailing party"
and therefore entitled to an attorney fee award under 42 U.S.C.A. § 1988.
See: Miller v. Commissioner of Corrections, 36 Mass.App.Ct. 114, 629 N.E.2d
315 (Mass. 1994).

A U.S. District Court held that Special Administrative Measures (SAMs)
were valid as to the detention of a pretrial detainee, but defense
attorneys need not give affirmation as to their acknowledgment of the
SAMs. 28 C.F.R. §501.3(a) (Prevention of acts of violence and terrorism)
(1996), allows the imposition of special restrictions, which are assessed
and implemented in each case individually "on any federal prisoners"
if "there is a substantial risk that a prisoner's communication or
contacts with persons could result in death or serious bodily injury" to
others.

After his alleged attempt to blow up a passenger airliner, the federal
government placed SAMs on Richard Reid which, among other things,
restricted his defense attorneys from disseminating the contents of his
communications. Moreover, the government ordered defense attorneys to sign
an affirmation acknowledging the SAMs, and defense counsel refused. The
district court held that the SAMS were valid as they applied to Reid, but
defense attorneys were not required to sign the affidavits. See: United
States v. Reid, 214 F.Supp.2d 84 (D.Mass. 2002).