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 ...

New federal prison telephone policies limiting prisoners to 300 minutes per
calendar month were instituted after the Bureau of Prisons settled an
earlier suit about telephone policies. The plaintiff alleged that the
earlier settlement was entered fraudulently with intent to retaliate
against prisoners for bringing the litigation.

The complaint should not have been dismissed for lack of subject matter
jurisdiction, since properly understood it asserted constitutional
violations (which the court does not specify, but which presumably means
the retaliation claim). Filing in the wrong district, in California, does not justify
dismissal, just transfer to a proper venue. See: Janis v. Ashcroft, 348
F.3d 491 (6th Cir. 2003).

The Eighth Circuit Court of Appeals affirmed a lower court's dismissal of
an excessive prison phone rate case for failure to state a claim under FRCP
12(b)(6). As we have reported extensively, all similar litigation to date
has been unsuccessful in every jurisdiction.

The Douglas County Corrections Center (DCCC) is a jail in Omaha, Nebraska.
The County contracts with private telecommunications companies to provide
inmates with telephone services at the DCCC. The private companies install
and operate telephones at the DCCC. As part of the contract, the private
companies charge recipients of collect calls for the outgoing calls made by
inmates at the DCCC. The contracts require that the County receive 45% of
the gross billable revenue that is generated from inmate calls. At $2.30
for a 15-minute call, [c]ollect calls originating from the DCCC are more
expensive than normal collect calls.

From September 2002 through January 2003, Pamela Gilmore's daughter was
confined at DCCC. Gilmore accepted collect calls from her daughter on a
daily basis.... After her release ... Gilmore's daughter moved in with [her
and] began to accept ... collect calls from [a] DCCC inmate that she
befriended during her incarceration.

Gilmore brought a § 1983 action against ...

An Indiana federal district court has awarded $54,000 in attorney fees and
costs in a prisoner's disability discrimination lawsuit. The award came
after a $5,000 summary judgment settlement between the parties.

James Kennington was arrested and booked into Indiana's Marion County
lock-up his lawsuit claimed: 1) that the Sheriff failed to communicate
effectively with Kennington through auxiliary aids and services during the
book-in process at the Marion County lock-up and 2) that the Sheriff failed
to provide Kennington with a TTY phone and to communicate effectively with
him through auxiliary aids and services during his imprisonment at the lock-up.

The Sheriff argued Kennington achieved a limited success because his claim
consisted of two parts, but he prevailed on only one, preventing an
attorney fee award.

An attorney fee award may not be prevented for services on an unsuccessful
claim that is distinctly different from a successful claim for relief.
Two claims are distinctly different: when based on different facts and
legal theories. An attorney's fee award, however, may be awarded for time
expended on an unsuccessful claim that is related to a successful claim
where the claims involve a common core of facts or are based on related
legal theories. ...

In an unpublished opinion, the Washington Court of Appeals held that the
Washington Department of Correction (DOC) properly rescinded a Request for
Proposals (RFP) to contract for prisoner telephone services.

In March 2004, DOC issued an RFP to solicit bids for the implementation
and operation of a new prisoner telecommunications system. AT&T had
operated the prisoner phone system since 1991. WDOC was seeking "a system
that charged prisoners the lowest possible rates and ensured that DOC
received commissions sufficient to fund its institutional welfare
betterment account."

On June 4, 2004, WDOC awarded the contract to Public Communications
Services, Inc. (PCS), with the final award being contingent upon the
signing of a mutually acceptable contract.

Subsequently, several unsuccessful bidders, including AT&T, asked to view
PCS's winning proposal. "On June 10, 2004, DOC received a letter from AT&T
protesting the selection of PCS's proposal ... On June 27, 2004, AT&T
forwarded a copy of its protest to the Department of Information Services
(DIS)."

"On July 27, 2004, DOC informed PCS ... that it was canceling the RFP,"
because "after it selected PCS's proposal, DIS had informed it that the
subject matter of the RFP 'fell under the exclusive authority' of DIS....
It ...

Detailed allegations that a prisoner exhausted but did not receive a
response at the final step sufficiently alleged exhaustion, even in the
Sixth Circuit.

The court refuses to apply Sixth Circuit law requiring the plaintiff to
have named each defendant in his grievances, since the plaintiff did not
complaint of unauthorized conduct, but challenges a permanent telephone
restriction that was imposed pursuant to prison policy, and sues the warden
and regional prison administrator who approved the restriction. At 742:
"Under the circumstances of this case, it does not appear that prison
officials responding to Plaintiff's grievances were hampered in their
consideration of Plaintiff's claims by his failure to name specific
individuals in his grievances."

The whole case is dismissed per the total exhaustion rule; the court
canvasses the contradictory unpublished Sixth Circuit decisions and other
decisions. Total exhaustion is supported by the plain language of the
statute ("No action shall be brought. . . .") and by the statutory purpose
to discourage frivolous prisoner litigation and conserve judicial
resources. Total exhaustion will ensure that prisoner claims are more
focused and some frivolous claims screened out, and will free courts from
having to determine precisely which claims are exhausted and which ...

The plaintiff complained that his attorney-client telephone calls and
correspondence were improperly intruded upon. At 159:

Krilich argues that his Fifth Amendment claim is not subject to the PLRA
because it is not brought "with respect to prison conditions." Krilich
argues that the confidentiality of the attorney-client relationship
transcends the conditions of time and place. He asserts that the
confidentiality of the attorney-client relationship is inviolate at all
times in all places and is not a "prison condition" that the BOP can
lawfully regulate. According to Krilich, attorney-client confidentiality is
out of the scope of the BOP's lawful authority and is, therefore, not
subject to the requirements of the PLRA. We disagree.

Krilich is correct that the confidentiality of the attorney-client
relationship is entitled to protection even where the client is a prisoner.
See Sallier v. Brooks, 343 F.3d 868, 874 (6th Cir.2003) ("[W]e have
heightened concerns with allowing prison officials unfettered discretion to
open and read an inmate's mail . . . especially correspondence that impacts
upon or has import for the prisoner's legal rights, the attorney-client
privilege, or the right of access to the courts."). His argument that the
BOP's attempts to intrude on that confidentiality are not ...

by Jennifer Van Bergen

The US Department of Justice has implemented a secretive new prison program segregating ?high-security-risk? Muslim and Middle Eastern prisoners and tightly restricting their communications with the outside world in apparent violation of federal law, according to documents obtained by Raw Story and PLN.

Quietly implemented in December, 2006, the special ?Communications Management Unit? (CMU) at a federal penitentiary in Indiana targeting Muslim and Middle-Eastern prisoners was not implemented through the process required by federal law, which stipulates the public be notified of any new changes to prison programs and be given the opportunity to voice objections. Instead, the program appears to have been ordered and implemented by a senior official at the Department of Justice.

In April, 2006, the US Federal Bureau of Prisons -- part of the Department of Justice -- proposed a set of strict new regulations and, as required, there was a period of public comment. Human rights and civil liberties groups, including Prison Legal News, voiced strong concerns about the constitutionality of the proposed program.

The program originally proposed was said to be applicable only to terrorists and terrorist-related criminals. The American Civil Liberties Union (ACLU) and Prison Legal News, however, along ...

Two Victories in New York's Struggle Against Unjust Telephone Contract

by Annette Dickerson, Rachel Meeropol, and Lauren Melodia

Families of those incarcerated by New York State finally won some justice this winter in their fight against a prison telephone contract that charges families of prisoners 630 percent more for collect calls than regular consumer long distance rates. The simultaneous victories came from the highest court of the State and from the newly elected Governor, proving that seemingly intractable forms of oppression are best fought through a campaign that combines litigation with active and effective education and outreach, and takes direction from affected and organized communities.

On January 8, 2007, Governor Spitzer announced that he would eliminate the state commission provision of the New York State Department of Correctional Services (NYSDOCS) prison telephone contract. Governor Spitzer's decision, which will go into effect on April 1, 2007, will immediately reduce the surcharge and per-minute rate of the contract by at least 50 percent -- families will see their phone bills cut in half beginning in April. Governor Spitzer has also guaranteed that the programs previously funded through the contract will remain fully funded through general state funds.

Just over a month later, ...