Prison Phone Justice

Case 3:08-cv-00353-GMN -VPC Document 207-13

Filed 03/22/11

Page 16 of 35

DECLARATION OF WILLIAM DONAT

I, WILLIAM DONAT, being first duly sworn, under penalty of perjury under the laws of
the United States declares and states:
1.

I have personal knowledge of the matters asserted herein and am competent

to testify thereto, save for those matters asserted on information and belief, and for those
matters, I am informed and believe them to be true.
2.

I am informed and believe Plaintiffs John Witherow and Donald York Evans

have named me as a Defendant in a lawsuit in the United States District Court, District of
Nevada entitled Evans v. Inmate Calling Solutions, et. al., case number 3:08-cv-00353GMN-VPC.
3.

From October 2005 to February 2009, I was the Warden at Nevada State
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Prison ( NSP") located in Carson City, Nevada.
4.

I am informed and believe that Plaintiffs have brought suit alleging that the

policy to initially screen out-going legal calls to verify that the calls were being placed to
attorneys or their offices from Unit 13 administrative segregation was improper.
5.

I am informed and believe that the period of time at issue is from May 8, 2007

to July 30, 2008. I suspect that Plaintiffs claims cease in July 2008 as that was right around
the time a new telephone provider/system was installed.
6.

During the period of May 8, 2007 to July 30, 2008, legal and personal calls

were handled differently at NSP. Personal calls were recorded by a third party that had
recording equipment that I think was located at its place of business and the Inspector
General's Office. When calls were recorded, there was a special computer program that
would allow prison staff to monitor the calls being recorded from prison's computers.
7.

I had this program on my computer in my office and I could monitor any

personal conversation that was also being recorded in the prison. I would often turn this
program on and listen to out-going personal calls in the background as I did other work.

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Case 3:08-cv-00353-GMN -VPC Document 207-13

Filed 03/22/11

Page 17 of 35

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8.

There were several instances wherein my monitoring resulted in discovering

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serious safety and security issues. Once I heard a plan between an inmate and an

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unidentified man who was planning to obtain guns and carry out a murder in Las Vegas. I

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immediately relayed this information to the Nevada Inspector General's Office for

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investigation.

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9.

Another time I was monitoring an inmate's call when the inmate discussed his

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belief that a correctional officer had begun a relationship with the inmate's wife. This would

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be a serious violation on the part of staff and could possibly compromise the safety and
security of the institution. An investigation was immediately initiated, but the officer resigned

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before the investigation was concluded and as of now the story can only be considered

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rumor as it was never confirmed.

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10.

I believe that the monitoring of personal calls in segregation was a common

practice at NSP and occurred as a part of an officer's daily duties.
11.

In May 2007 to July 2008, legal calls were handled differently than personal

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calls. Inmates were allowed an unlimited number of legal calls and often took advantage of

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this privilege.

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12.

In order to make a legal call, an inmate could designate a legal number using

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a form identifying the name and number of his attorney. The telephone provider would then

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put this number into their system which would automatically prevent recording of the call.

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Since the call was not being recorded, it could also not be monitored using the telephone

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providers system. Although generally this was the system for the rest of NSP, from May 8,

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2007 to July 30,2008 there were special problems associated with providing inmates in Unit

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13 with telephone access.

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In segregation inmates are locked down most of the time and are not allowed

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~~: . to freely move about the unit or which would allow them to "capture" the tier. Capturing the
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~~~ 'tier is when an inmate refuses to comply with orders instructing him to return to his cell,
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lockdown, or consent to being handcuffed. In such situations staff is required to physically

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restrain the inmate, creating disturbances and wasting valuable resources.

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Case 3:08-cv-00353-GMN -VPC Document 207-13

14.

Filed 03/22/11

Page 18 of 35

To prevent this problem and still provide inmates with the ability to make

phone calls, in Unit 13 at NSP we used portable phones that would be handed to an inmate
in his cell. This portable phone could then be used to make personal and legal calls.
15.

There were only two portable phones for all of the inmates in Unit 13 so limits

were placed on the number of personal calls that each inmate could make in a week, but
legal calls were unlimited. Unlike in other areas of the prison where if another inmate is
using the phone, an inmate could simply ask or go to another phone, there were only two
phones for all of the inmates in administrative segregation.
16.

The limitation on personal calls was designed to allow all the inmates in the

unit access to phone to make their personal calls and all legal calls that were necessary. If
restrictions were not placed on personal calls, I have no doubt that inmates would dominate
the use of the phone and it would have created a problem in getting all inmates their
personal and legal calls.
17.

However, limiting the number of personal calls caused many of the inmates to

attempt to circumvent this restriction by designating non-legal numbers as legal numbers.
This meant that the inmate could justify making unlimited personal calls by claiming that the
number was a legal number. Falsely designating a personal number as a legal number also
meant that there would be no recording of these calls, which might have been an additional
motivating factor for some inmates in designating personal numbers as legal numbers.
18.

In a segregation unit there was also no way for staff to tell who the inmate

was calling. Although an inmate could request the portable phone and make a legitimate
legal call, if his attorney was unavailable or the call was short, the inmate could then make
additional personal calls while the phone was still in his possession.
19.

Officers could attempt to limit such abuse by watching inmates dialing the

number they wished to call, but there was no way to make sure this was a legal number and
once the officer left the cell, the inmate could simply hang-up and call another number.
There was not enough manpower to stand guard over the portable phones during the
duration of all calls and this would have required monitoring of some legitimate legal calls.
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Case 3:08-cv-00353-GMN -VPC Document207-13
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Filed 03/22/11

Page 19 of35

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20.

These problems resulted in an increased abuse of the portable telephones

and other inmates in segregation were being deprived of their opportunity to use the
portable phone to make their allotted personal calls or legal calls.
21.

To deter and minimize abuse, the practice was that a correctional officer in

the Unit 13 control room would monitor all out-going phone calls using two speaker boxes,
Such monitoring occurred on all personal calls and only long enough on legal calls to verify
that they were in fact legal calls.
22.

The initial screening of out-going legal calls was limited to identifying the party

the inmate was calling. This initial screening was not supposed to last longer than a few
seconds and terminated as soon as there was any indication that the inmate was speaking
with an attorney or law office. In my opinion, this practice was the only way to deter abuse
and allow other administrative segregation inmates an equal chance to use the phone,
23.
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I am informed and believe that Plaintiffs Witherow and Evans allege that their

attorney-client calls were being monitored for longer than initial confirmation. I was unaware of

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any such practice and never instructed any of my staff to monitor any legal call beyond the

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point of initial identification.

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24.

At no time did I know or believe that anyone of my officers or employees were

listening or monitoring legal calls beyond the point of initial identification.

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25.

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During May 2007 to July 2008, I do not recall ever being asked by any third

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party to have prison staff listen or monitor any out-going legal calls beyond the point of initial

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confirmation.

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26.

From May 2007 to July 2008, I do not recall ever obtaining any allegedly

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confidential information that was obtained from Plaintiff Witherow's legal calls or ever relaying
any such information to any third party.
27.

From May 2007 to July 2008, I do not recall ever personally monitoring any of

Plaintiffs out-going legal calls as the computer in my office would not have had access to thos
calls if they were made to a designated legal number.

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Case 3:08-cv-00353-GMN -VPC

".'

Document 207-13

Filed 03/22/11

Page 20 of 35

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28.

I believe now as I did in 2007 and 2008, that allowing inmates in segregatioQ

unlimited and unrecorded access to prison phones could be dangerous to other inmates,
prison staff, and the public. Inmates could use the phones to discuss, plan, and coordinate
ways to secret contraband into the prison or to commit crimes, intimidate potential witnesses,
or torment and harass victims.
29.

I honestly believe that the only way to ensure that all segregation inmates had a

chance to call their legal counsel, while still protecting the safety and security of the prison

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population and the public was to require initial screening of all out-going phone calls and to

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verify legal calls were being properly placed.

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30.

I also believe even initial screening did not eliminate abuse as inmates could stil

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misuse the phone system by having their friends or family identify themselves as a law office

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when answering the phone. If such deceit were employed, the call would neither be recorded

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nor monitored. Additionally, once legal counsel did answer the phone, they could always

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forward the call to others. Despite these flaws in initial monitoring, it was still the best way to

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deter and minimize abuses of the portable phones and to make sure all inmates got a chance

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to use the phone.

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In denying Plaintiff Witherow's grievance complaining about the initial

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monitoring of his out-going legal calls, there was no indication that Defendant Lea Baker

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was listening to Plaintiff's legal calls beyond the point of initial identification.

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32.

I believe that the initial screening of legal calls was similar to the initial

screening of legal mail. The initial scanning of legal mail checks for contraband and

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anything marked as legal mail. Just as with legal mail, in 2007 and 2008 in Unit 13 at NSP,

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prison staff only monitored enough of an alleged legal call to ensure that the phone system

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was not being abused. This initial screening was the only and least invasive option to

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Case 3:08-cv-00353-GMN -VPC Document 207-13

33.

Filed 03/22/11

Page 21 of 35

In 2007 and 2008 I knew Plaintiffs Evans and Witherow had business and

personal interactions beyond their attorney-client relationship. Despite this knowledge, as
soon as Plaintiff Evans identified himself as an attorney or his secretary answered the
phone identifying the number as a legal number, initial monitoring was supposed to stop.
Pursuant to 28 U.S.C. § 1746, Declarant herein certifies, under penalty of perjury
under the laws of the United States, on March 18, 2011 that the foregoing is true and
correct.

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WILLIAM DONAT

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