Discipline Without Notice Violates Due Process;
BOP Administrative Exhaustion May Be Excused


A federal district court in Oregon held that a federal prisoner's procedural default in failing to exhaust administrative remedies would be waived. The court also held that disciplining a prisoner for violation of a rule he had no notice of violates due process.


Scott Seehausen, a BOP prisoner confined at FCI-Sheridan telephoned David Reyes-Espinosa, a former member of his prison softball team. Reyes-Espinosa was on home confinement at the time. As a result of the telephone call Seehausen was disciplined for violating a telephone policy that prohibited prisoners from calling prisoners at a halfway house.


During the hearing, Seehausen argued that there was nothing in the prison policies indicating that he could not call another prisoner. The Hearings Officer acknowledged that Seehausen was given an early version of the Prisoner "Handbook that `did not spell out the new telephone procedure initiated in early 2000.'" However, the Hearings Officer found Seehausen had sufficient notice of the prohibition due to: "(1) a town hall meeting where rules governing telephone use were discussed; (2) an article in the prison newsletter discussing telephonic activities that would subject an inmate to discipline; and ...

NYPD Commissioner Charged With Stealing $112,733.98
from Jail Prisoner Fund

By Matthew T. Clarke


On July 11, 2003, NYPD Deputy Po-lice Commissioner of Community Affairs Fredrick J. Patrick, 38, was arrested on federal charges that he looted close to $113,000 from the New York City Correctional Foundation, a non-profit corporation, incorporated in 1993, to improve jail conditions in New York City. Patrick has been the Foundation's Director and Treasurer since 1994. The money was used to pay for collect calls from prisoners to Patrick's home phone, including "thousands and thousands" of calls he patched through to "900" sex lines between January 1997 and December 2001, apparently listening in on the calls. Patrick admitted spending the money on phone calls, paying his MCI and NYNEX bills with Foundation checks.


The investigation is part of a probe into the diversion of $1 million in cigarette rebates from the Correction, Department to the Foundation and the Foundation's substandard record keeping. The phone calls seem to have been an obsession with Patrick and may have been his main leisure activity. 81% of the calls were on weekends and Patrick was unable to cease calling even with investigators breathing down his neck. Patrick's salary is ...

Division I of the Washington State Court of Appeals has affirmed a trial court dismissal of an action challenging phone companies' failure to disclose the rates for collect calls made by Washington prisoners. Relief was denied because the plaintiffs did not bring the appropriate agency into the suit and did not cite the agency's regulations, as set out below.


Sandy Judd and Zuraya Wright received collect calls from a family member in a Washington prison [PLN editor Paul Wright]. Tara Herivel, an attorney and prison reform activist, received calls from many Washington prisoners. The phone service providers use an "alternate operator" system (a recording directing call recipients to press 1 to accept the call). Rates for such calls are very high, but the recording did not disclose this.


The plaintiffs, unhappy about the lack of warning about the rates, sued the phone companies in the King County Superior Court. They sought injunctive and monetary relief under state telecommunications and consumer protection laws. After the suit was filed, all the prison phone companies began providing rate information either as part of the recorded message or as a touch tone option. This mooted the equitable relief claims. The superior court dismissed the ...

Society is dynamic, in a state of con-stant flux where change is the only constant, but recent changes in Colorado are turning up the pressure in Colorado's prison system. Prisoner pay has been nearly eliminated while hygiene items are not provided. Prisoner phone rates are now in the hands of prison officials who can raise a quick buck at will by raising phone rates. The maximum possible parole setback has been extended to five years to further reduce the scant number of prisoners paroled. And overwhelming growth in the face of massive state fiscal troubles and a slashed prison budget has resulted in some prisoner programs eliminated, staff laid off and positions left unfilled, while another unneeded supermax begins construction.


Prisoner Pay


The state fiscal crisis has reached the point that not only has the Colorado Department of Corrections (CDOC) eliminated dispensing prisoner necessities (except for one roll of toilet paper per week in some areas), the General Assembly has ordered the CDOC to cut prisoner pay to save a paltry $1.4 million (or 0.298%) of an otherwise $469,771,508 budget. The previous multi-tiered pay system of $.28 per day for unassigned prisoners and $0.63, 1.03, 1.53, and 2.03 per day ...

Fighting For Fair Phone Rates

by Deborah M. Golden

In 2000, a group of prisoners, loved ones of prisoners, and attorneys filed a lawsuit in the U.S. District Court for the District of Columbia challenging the high cost of collect calls from private correctional facilities. The case is Wright, v. Corrections Corporation of America, USDC DC case no. 1:00CV00293 (GK), in front of Judge Kessler. This group is represented by attorneys at Seliger & Elkin, in Chicago; D.C. Prisoners' Legal Services Project, in Washington, DC; and the Center for Constitutional Rights, in New York. The lawsuit claims, among other things, that the high costs of the phone calls violate anti-trust laws, the Eighth Amendment, and the Federal Communications Act.

We asked the court to make the case a class action, but the judge did not rule on that motion. Instead, in August 2001, the judge ordered us to go to the Federal Communications Commission ("FCC") because the case involves issues under its jurisdiction. However, the judge did not dismiss the case, but nothing will happen until FCC rules.

In front of the FCC, the process is being divided into two parts. The first part is a Petition for Rulemaking, in ...

The turbulent economy of the past decade has led many communities across America to foolishly seek prisons as a recession proof industry and rural welfare program for poor whites. But prisons can be a double edged sword, sometimes causing more problems than they solve. Private prisons can be especially duplicitous. Private prisons open and close at will as the need for bed space arises. While public prisons can do the same, powerful guard unions prevent that from occurring in all but the rarest of cases. Private prison guards are not unionized. Sayre, Oklahoma and Youngstown, Ohio are two towns that were lured by the seemingly easy money and extra jobs private prisons would bring. They ended up being burned by their own greed.


Sayre, Oklahoma


On April 23, 2000, a riot broke out at the North Fork Correctional Facility in Sayre, Oklahoma, a private prison owned by Corrections Corporation of America (CCA). One guard received 12 stitches to the head and spent six days in the hospital after seven prisoners allegedly beat and kicked him. The riot apparently began on the recreation yard and moved to the kitchen where another 15 prisoners caused roughly $12,000 in damage. All of the ...

The U.S. Sixth Circuit Court of Appeals has ruled that the administrative remedies exhaustion requirement of the Prison Litigation Reform Act (PLRA) must be met even where a court approved settlement reached prior to the PLRA's enactment does not so require. The case involves the telephone policies of the Federal Bureau of Prisons (BOP), including telephone access and rates and billing of prisoners and their families. The consolidated cases, Washington v. Reno, US DC D KY, Civil Action Nos. 93-217 and 93-290, were settled on November 3, 1995, prior to enactment of the PLRA. Prison Legal News has previously reported on this case [PLN, Sept. `96].


Michael Henry Smith, a BOP prisoner, sued BOP for violating the Washington v. Reno Settlement Agreement. Smith raised six objections to BOP's policy including the monthly time limits, the interruption of the phone call with prerecorded messages, the inability to make collect calls to courts and government agencies, and an unrepaired billing flaw in the telephone system. Following the grievance procedure outlined and approved in the settlement agreement, Smith filed a single grievance with his warden, then sued BOP under 28 U.S.C. §1331 and the terms of the agreement regarding the violations.


The U.S. ...

A renewed four-year no-bid prisoner phone contract was awarded in June, 2002 by the California Department of General Services to MCI WorldCom, a telephone conglomerate whose recent bankruptcy exposed the largest accounting fraud in US business history - $11 billion. The non-competitive award, giving MCI exclusive control of prisoner phone calls in 29 of California's state prisons (the other four went to Verizon Corp.) was let two months after MCI gave $13,000 and one month after Verizon gave $25,000 to Governor Gray Davis' political campaign fund. MCI spokeswoman Natasha Haubold called the timing "purely coincidental." Gov. Davis, under intense media pressure, had recently returned a $25,000 donation that preceded an $85 million no-bid award to software supplier Oracle Corp.


Charles Carbone, legal director of California Prison Focus - a San Francisco non-profit prisoner rights group - called the award "very disconcerting" because the contract "should have been opened to competitive bidding." But even if it had been, it is unclear for what factor the "winner" would have been selected. California, like many other states, exacts a contractor "kickback" as a flat percentage of all prisoner phone revenues. The previous two-year MCI contract generated approximately $35 million in annual kickbacks to ...

by Matthew T. Clarke

In February, 2003, The Nebraska Department of Corrections (DOC) has contracted with AT&T to set up what may be the most progressive prisoner phone service in the United States. The five-year contract makes AT&T the sole provider of local and long distance services, associated equipment, maintenance and administrative services to the approximately 3,700 prisoners in the Community Corrections Centers at Lincoln and Omaha, the Diagnostic and Evaluation Center at Lincoln, Hastings Corrections Center, Lincoln Correction Center, Nebraska Correction Center for Women, Nebraska Correctional Youth Facility at Omaha, Nebraska State Penitentiary, Omaha Correctional Center, Work Ethic Camp at McCook, and the Youth Rehab Treatment Centers at Geneva and Kearney.

AT&T operates more than 49,000 prisoner phone stations at over 3,000 U.S. prisons and jails. AT&T invented prisoner "collect calling only," 23 years ago. However, the contract calls for AT&T to offer the dialer a choice of calling collect or charging the call to a debit account. The ability of prisoners to call using a debit account has two favorable features: a 20% lower call rate and the ability to place international calls (which may not be done collect).

Prisoners are limited to 15 minutes of phone calls ...

by John E. Dannenberg


The California Supreme Court held that jail detainees' unprivileged (non-attorney) phone conversations and visits may be secretly recorded and that that information may be used to convict. This ruling, which reversed a 1982 decision holding such recording by the prosecutor to be misconduct, was based upon an intervening 1994 statutory amendment to California Penal Code (PC) §§2600, 2601, commonly known as the Prisoners' Bill of Rights.


Christine Loyd was convicted of arson and two counts of first degree murder. Unbeknownst to her, while awaiting trial in county jail, her telephone conversations with non-attorney visitors were recorded - at the request of the district attorney. Thus, pre-trial conversations with three visitors at the jail and with two persons via outside telephone were taped for the purpose of "gathering evidence."


Loyd's challenge was grounded in the California Supreme Court's decision in DeLancie v. Superior Court (1982) 31 Cal.3d 865, wherein such recordings were ruled to constitute prosecutorial misconduct. DeLancie relied upon then recently amended CA PC §§2600 and 2601, which protected prisoners' rights subject only to the limitation of "providing for the reasonable security of the institution." Such evidence collection, the DeLancie court noted, did not enhance or ...