In an unpublished order, the Seventh Circuit Court of Appeals reversed the
dismissal of an Illinois prisoner's racial discrimination and pepper spray
exposure claims.

Illinois prisoner Johnnie Flournoy brought suit in federal court asserting
several unrelated constitutional violations. The district court dismissed
many of those claims for failure to state a claim and others for failure to
exhaust administrative remedies.

The Seventh Circuit upheld the dismissal of Flournoy's denial of medical
care claim, finding that he failed to exhaust administrative remedies or
show that defendants rendered those remedies unavailable.

The court also upheld dismissal of his equal protection claim related to
the denial of a furlough to attend his dying father's funeral. Claiming
that he exhausted that claim, Flournoy pointed to a grievance that said
nothing about a furlough, thereby pleading himself out of court.

The court reversed the dismissal for failure to state a claim, of
Flournoy's race-based denial of telephone and visiting claims. The court
found that dismissal was precipitous because officials may not deny
prisoners privileges based on race.

The court also reversed dismissal of Flournoy's pepper-spray exposure
claim, finding that the district court erred in concluding that Flournoy
rested on the pleadings with respect to exhaustion. ...

At 778 n. 4: The defendant state police could not be held liable for the
plaintiff's inability to make a long distance call to his attorney from
jail, since the right to counsel had not yet attached after his arrest, and
the defendants had no control over jail policies. See: Fridley v. Horrigs,
162 F.Supp.2d 772 (S.D.Ohio 2000).

The plaintiff, a federal pre-trial detainee held in a local jail, was placed in administrative
segregation and lost telephone access based on a letter from the prosecutor to the U.S. Marshal, which requested such action because the plaintiff's superseding indictment named five new defendants who were not yet in custody and he might warn them. He was able to telephone no one but his attorney, and that based on a written request; however, he was able to visit personally with his attorney and with family and friends. His telephone access was restored after four and a half months.

Alaska law did not give rise to a liberty interest in telephone use. The relevant statute only requires "reasonable access" to a telephone, rather than prescribing an outcome, leaving prison officials with discretion to determine what reasonable access means. The accompanying regulations provide that access may be limited if there are reasonable grounds to think restrictions are required to protect the public. (1044 n.3: Sandin, which rejects this mode of analysis altogether, does not apply to pre-trial detainees.)

At 1045: "Pretrial detainees have a substantive due process right against restrictions that
amount to punishment." The defendants' actions were not punishment, since they ...

The criminal defendants were convicted based in part on recordings of their telephone calls from
jail. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 generally forbids
telephone surveillance without a warrant, but has exceptions for instances where one party has
consented and for telephones used by "an investigative or law enforcement officer in the ordinary
course of his duties." Consent may be express or implied, and implied consent has often been
found based on notice that calls will be listened to. The telephones in the jail cells did not have
signs indicating that calls made over them might be recorded; however, the booking area
telephones had signs saying that calls to attorneys made over them would not be monitored or
recorded.

The district court had found "a reasonable person could understand" that the booking area
telephone signs meant that calls from other telephones might be recorded, but that was not
sufficient notice to create implied consent. Instead, it relied on the "ordinary course" exception,
holding that notice was not required. The appeals court says that no circuit has ever applied the
"ordinary course" exception in a situation where at least one participant had not received ...

The Cook County Sheriff's Office in Illinois has agreed to pay 500 former
prisoners $50 per day for each day they were illegally shackled hand and
foot to a hospital bed. The lawsuit was filed originally by three
prisoners, Khalil Rohim, Wardell Hayes, Michael Dates, and Gregory Mays,
who received $65,000, $9,500, $7,500 and $6,500, respectively under the
settlement. The prisoners were handcuffed to beds at the Cook County
Hospital, which prevented them from going to court, using the telephone,
writing and reading.

The attorneys in this case, Thomas and Kevin Peters, received $445,000 in
attorney fees and costs. See: Rahim v. Sheahan, USDC, N. Dist Ill., Case No
99 C-0395

A telephone user complaining of poor service had standing to sue the
telephone service provider under 47 U.S.C. §§ 206 and 207 (the
Communications Act), which makes violators of the Act liable to parties
whom they injure. The substantive violation claimed was poor local
service, which allegedly violated § 202(a) of the Act, which prohibits
"unjust or unreasonable discrimination in charges, practices,
classifications, regulations, facilities, or services," giving
"unreasonable preference or advantage" to anyone, or subjecting "any
particular person, class of persons, or locality to any undue or
unreasonable prejudice or disadvantage." (317) The plaintiff undisputedly
met the constitutional limits of standing. The fact that the plaintiff was
an indirect purchaser of services did not mean that it lacked standing on
prudential grounds, given the statute's authorization of suit by injured
parties and the lack of a proximate cause requirement in the statute. See:
Law Offices of Curtis v. Trinko, L.L.P. v. Bell Atlantic Corp., 294 F.3d
307 (2d Cir. 2002).

A serious medical need is "a condition of urgency that may result in
degeneration or extreme pain." (559) (No it isn't, necessarily.) The
plaintiff alleged an eight-month delay in diagnosis of his "bowel disorder"
(mild distal proctitis and internal hemorrhoids) from the time he was
discovered to have blood in his stool.

The named defendants were not deliberately indifferent. The Facility
Health Services Director at Southport is not shown to have known about the
problem for months, then he quickly scheduled the necessary testing. The
plaintiff was transferred before he could get the test, but does not show
how the doctor at the receiving prison contributed to delay in treatment.
One seven-day delay is attributable to him, but the plaintiff didn't show
that this delay caused his condition to deteriorate or that he suffered
extreme pain.

An orthopedic specialist recommended that the plaintiff be issued a pair of
"orthopedic boots." Later, he asked for "orthopedic sneakers" since he was
housed where boots were not permitted. He was diagnosed with synovial
cysts, which the doctor said do not cause discomfort, and was denied
special footwear. The plaintiff said that this was wrong and the
state-issued sneakers caused him "unnecessary discomfort," but ...

One of the plaintiff's claims was exhausted. At 291-92: He doesn't have
"proof-positive," but he does have "some proof that his efforts to file
grievances . . . were not facilitated by the Jail as required by the
policy." Exhaustion is an affirmative defense and the Department of
Correction hasn't presented any proof of non-exhaustion. At 292:
"Furthermore, the fact that jail personnel responded that this was not
grievable and they do not back-away from this position in these pleadings
suggests that it is not inequitable to estop them from arguing that Simpson
has failed to exhaust."

The refusal to let the plaintiff make a collect call while in disciplinary
segregation, pursuant to standard jail policy, did not violate the
Constitution. The policy permitted phone calls as authorized by the shift
supervisor for a bona fide reason. At 295: "Routine lawyer calls do not
constitute a bona fide reason." Segregated prisoners have alternative
methods of communication: free postage for three letters a week, unlimited
writing supplies and postage for legal correspondence; visits with
attorneys except during eating, sleeping, or count hours. Defendants'
actions were not done with punitive intent under Wolfish (i.e., it's not
punishment for the crime he was ...

The criminal defendants' telephone conversations were tape-recorded
pursuant to standard jail policy. They could be used as evidence
notwithstanding the protections against telephone surveillance of the
Omnibus Crime Control and Safe Streets Act. Their recording fell into the
statute's exception for interception "by an investigative or law
enforcement officer in the ordinary course of his duties," since they were
done pursuant to routine procedures of recording all calls. The fact that
the recording was done by private telephone companies did not matter.
Courts have held that prison officials are law enforcement personnel, and
so do the private agents of prison officials as long as they are properly
authorized and supervised, which they were here.

The defendants also consented to the interception of their telephone
communications. At 844: "In the prison context, when the facility has
notified an inmate that his telephone calls may be recorded and monitored,
the inmate's subsequent use of the telephone implies the requisite
statutory consent to the recording and monitoring." They received notice
that their calls were recorded, and one of them clearly knew they were
being monitored based on his use of code or slang words. The court
declines to recognize a distinction between consent ...

The plaintiff raised various constitutional claims, discussed below, and
moved for class certification. The court denies it because the case is pro
se and absent class members are "entitled at least to the assurance of
competent representation afforded by licensed counsel." (950) Even lawyers
can't act both as class representatives and as attorneys for the class
since that "would eliminate the checks and balances imposed by the ability
of the class representatives to monitor the performance of the attorney on
behalf of the class members." Id. Also, the mere allegation that 180
persons are affected by the conditions described is not sufficient to show
compliance with all the requirements of Rule 23.

The court declines to appoint counsel. At 950: "I acknowledge that the
plaintiff alleges that he is mentally ill and therefore is incompetent to
represent himself. However, plaintiff's complaint is clearer and more
coherent than most others drafted by prisoners." His claims may involve
complex questions, but it's too early to determine whether they are
sufficiently meritorious to justify asking a lawyer, who may not be
compensated, to represent him, especially given the shortage of willing
lawyers relative to the demand.

Procedural Due Process, Clothing (944): The plaintiff's ...