In a characteristically colorful opinion from Judge Richard Posner, the U.S. Court of Appeals for the Seventh Circuit breathed new life into an otherwise moribund lawsuit where plaintiffs sought relief from the exorbitant charges for collect telephone calls made from Illinois' prisons and jails.

Prisoners, their families, and a public interest law firm brought a 42 U.S.C. §1983 action against the state of Illinois and certain telephone companies where they challenged the practice by which prisons and jails grant to one telephone company the exclusive right to provide prisoner telephone service in exchange for 50 percent of the revenue generated by the service.

Federal and state statutes require telephone companies to file tariffs with the Federal Communications Commission (FCC) and the Illinois Commerce Commission (ICC). The statutes grant the FCC and the ICC exclusive authority to determine and approve the reasonableness of the tariffs. Under the "filed-rate doctrine," a customer cannot ask the court in a civil rights or antitrust action to usurp the authority of the FCC or ICC by invalidating or modifying the approved tariff and rate schedule.

Finding itself in no position to invade the province of the FCC or ICC, the district court dismissed the plaintiffs' ...

The United States District Court of South Carolina has remanded to state court a suit by prisoners' family members against Sprint Payphone Services and other communications providers, the State of South Carolina, and the South Carolina Department of Corrections (DOC) and its prisons, alleging that the state illegally entered into payphone contracts with the service providers.

Mildred Fair, Pamela Simpson, Jacqueline Anderson, Rhonda Lunsford, and Walter Fair are family members or friends of South Carolina prisoners who have accepted telephone calls from prisoners. Prisoners have no choice of telephone service provider, as DOC contracts for the services. Plaintiffs filed suit under various South Carolina statutes alleging that the contracts were illegal because the rates are unlawful and uncompetitive and the defendants receive kickbacks from the service providers. The defendants, citing the Telecommunications Act of 1996, 47 U.S.C. §276(b), and a federal jurisdictional statute, 28 U.S.C. §1441, moved for removal of the case to federal court. The State court granted the motion, and Plaintiffs moved the district court to remand.

The district court discussed statutory and case law causes for removal from state to federal court. The court then examined the defendants' asserted cause of federal jurisdiction under 47 U.S.C. §276(b), ...

MCI WorldCom owns the exclusive contract to provide phone services to the 45,000 prisoners incarcerated in the State of Georgia. Of course, the prisoners are only allowed to place collect calls, and have no choice on which company to use. The state decides that for them. It's MCI WorldCom or nothing. For much of August and September of 2001, family or friends of Georgia prisoners heard a recorded message prior to accepting the call that stated that the rates for the call would be $2.44 for the first minute, and 24 cents for each additional minute.

But, in fact, the actual bill was more than double. Those who accepted the collect calls were actually billed $4.64 for the first minute, and 69 cents for each additional minute. In August alone, MCI WorldCom collected more than $1.5 million on 158,796 calls. Their contract with Georgia DOC calls for the state to receive a 65 percent kickback on all prisoner calls, which gave them more than a $1 million windfall on the overcharges.

Neither the state nor MCI WorldCom will say what they will do with their portion of the money that the Corrections Department concedes was improperly collected. But MCI WorldCom ...

by Matthew T .Clarke

The Tenth Circuit Court of Appeals has ordered the claims in the first published challenge to the implementation of Special Administrative Measures (SAMs) by the federal Bureau of Prisons (BOP) dismissed without prejudice for failure to exhaust administrative remedies.

Ramzi Ahmed Yousef, a federal prisoner at the ADX in Florence, Colorado, filed a Bivens action against various government officials alleging that his placement under SAMs violated: the constitutional prohibition against cruel and unusual punishment; his rights to due process, counsel, freedom of speech, and to freely exercise his religion, and sought declaratory and injunctive relief and monetary damages .Yousef was convicted of conspiracy in the 1993 bombing of the World Trade Center and attempts to bomb various U.S.-flagged commercial aircraft .This case was decided prior to the destruction of the World Trade Center on 9-11-01 .Due to Yousef's association with terrorist activities, the Bureau of Prisons (BOP) implemented SAMs restricting Yousef's access to mail, telephone, media, and visitors and limited his carrying of religious materials, recreation and exercise time.

Yousef filed formal and informal applications seeking review of the SAMs .They were denied .He then filed suit in federal district court .The Attorney General (AG) replied ...

It was September 19, 2001. Elizabeth McAlister had not heard from her husband, Philip Berrigan, in more than a week. Such silence on Berrigan's part was "most unusual," she says. Convinced that something was wrong, she telephoned the Federal Correctional Institution in Elkton, Ohio, where the seventy-seven-year-old peace activist is serving a sentence of a year and a day for hammering on a military aircraft while on probation for a similar action in another state.

"It took ten phone calls to the prison to get them to admit to me that he was in segregation," she says. McAlister also learned that Berrigan was being denied all phone calls and visits, even from family members. "I was not told why or for how long."

So McAlister telephoned the office of her Senator, Maryland Democrat Barbara Mikulski. Mikulski's office called the prison and, according to McAlister, was told "that Phil was put in segregation on September 11, 2001, as a direct consequence of the attacks on the World Trade Center and the Pentagon, [and] that this was done `for his protection.'"

But that explanation did not ring true. "If Philip is in segregation `for his protection,' why the punitive denial of visits ...

Gregory May, a Cook County, Illinois, prisoner, filed a suit against the Sheriff and Sheriff's Department officials under 42 U.S.C. § 1983, alleging their treatment of prisoners taken to Cook County Hospital is unconstitutional and violates the Americans with Disabilities Act (ADA). The Sheriff filed a motion to dismiss, which the district court granted on the ADA claims and denied for the other claims. The Sheriff filed an interlocutory appeal of the denial.

Taking all of May's allegations as true, the Seventh Circuit found that the Sheriff had a policy of shackling prisoners in the hospital 24 hours a day, despite round-the-clock armed guards. The Sheriff also had a policy of restricting or denying hospital prisoners access to attorneys, visitors, legal materials, telephones, typewriters, computers, magazines, and recreational activities. The policy also banned personnel from bringing hospital prisoners to scheduled court hearings. May claimed these policies prevented him from assisting in his own defense, denied him his constitutional right of access to courts, violated his due process rights, and constituted unconstitutional unequal treatment of similarly situated prisoners.

With the district court's permission, May filed two amended complaints while the appeal was pending. As an initial matter, the Seventh Circuit noted ...

The California Public Utilities Commission (PUC) ordered MCI Telecommunications Corp. (MCI) to offset $522,458 in overcharges it made between June 14, 1996, and July 12, 1999, on MCI California Maximum Security Calls (i.e., California prisoner collect calls) by proportionately reducing the cost it charges for future such calls during its current contract with the California Department of Corrections (CDC). Although it was ruled that refunding the excess charges to the actual users would be impractical, individual users who have their own billing records may apply for personal refunds.

The May 2001 Order was the settlement reached by MCI, the PUC, and the complainant Utility Consumer Action Network (UCAN), a San Diego based ratepayer advocacy group. UCAN had filed a complaint in June 1999 stating that MCI had failed to bill its tariff rates, among other tariff violations, for California prisoners' collect calls. But because the details of the violations and the methodology for the calculation of the settlement amount were kept secret ("confidential" appendices B and C to the Settlement Agreement), it is impossible to say with any certainty that full amends were, in fact, made.

PLN readers should note that this settlement covers those California prisons under MCI's contract, ...

Holding that the action was not time-barred and otherwise stated an actionable claim, the Court of Appeals for the Ninth Circuit has reversed a lower court’s dismissal of a prisoner’s pro se action which claimed that California state prisons practiced racial segregation in housing prisoners. The Court upheld the dismissal of a claim that prison directors conspired with the telephone company to overcharge for prisoner telephone service.

In 1995, Garrison Johnson filed an action pursuant to 42 U.S.C. §§1981, 1983, 1985, and 1986 seeking damages and declaratory relief. Johnson’s two primary claims were that the Director of the California Department of Corrections (CDC) instituted and enforced a policy which permitted racial discrimination in prisoner housing, and that the Director conspired with the telephone company to extort money from prisoners. The federal district court dismissed the case with prejudice holding that the action was time-barred and otherwise failed to state a claim.

Addressing the time-bar ruling, the Court of Appeals held that the California one-year statute of limitations is applicable to §1983 suits since §1983 does not contain its own statute of limitations and it is thus proper to use the state’s personal injury claim statute of limitations. The Court also ...

by W. Wisely

In reaction to bad publicity, lawsuits, and legislative hearings following a record number of fatal shootings of unarmed male prisoners, staged fights, and the sexual abuse and medical neglect of women prisoners, California established the allegedly independent Office of Inspector General within the state's Youth and Adult Correctional Agency. Posters were ordered to be put up at all department and Youth Authority facilities asking prisoners to report staff misconduct by calling a tollfree number. Unfortunately, neither the Department nor the Youth Authority will allow prisoners to make tollfree calls.

"We informed the Office of Inspector General of that," a spokes- woman for the Department told the Sacramento Bee . "But, they went ahead with the posters anyway." Martin Hoshino of the Inspector General's Office admitted the problem, but said there was no choice. "We're required [by a new state law] to put the posters up, and that's what we did," Hoshino told the newspaper.

The Inspector General's Office is optimistic a solution will be worked out. But, since last October, the Department and Youth Authority have both refused to change their rules to allow prisoners to report staff misconduct by using an 800 number. The poster campaign ...

The Third Circuit held that in claims alleging the malicious use of force by prison guards the wantonness of the attack, rather than the degree of injury suffered, is the dispositive issue for courts reviewing such claims on summary judgment.

Pennsylvania state prisoner Alan Brooks filed suit claiming that prison guards terminated an approved phone call to his attorney by rushing him and repeatedly punching him in the head, slamming him into a wall, threatening him and choking himalmost rendering him unconsciousall while he was handcuffed to a waist chain. The only actual injuries Brooks suffered, however, were abrasions and scratches on his neck and hands.

Relying on the analysis in Norman v. Taylor , 25 F.3d 1259 (4th Cir. 1994)(en banc) of the U.S. Supreme Court's ruling in Hudson v. McMillian , 503 U. S. 1, 112 S.Ct. 995 (1992), the District Court ruled that since the injuries were de minimis , that alone was conclusive proof that only de minimis force was used in the attack. In doing so, the Court did not follow the Fed.R.Civ.P. 56(e) standard for summary judgment, which is not to rule on the evidence itself, but only to decide whether there are genuine ...