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 …
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 …
