Washington v. Reno

Citation35 F.3d 1093
Decision Date03 November 1994
Docket NumberNo. 93-6414,93-6414
PartiesConchita WASHINGTON; Sunday Torres; Gloria Batton Robinson; Antoinette M. Frink; Nita Young; Patricia M. Darks; Norma Fay Cook; Angela Sanchez-Martinez; Martha Marie Preston; Titilola I. Odusanya; Alberta Anderson; Loven L. Lewis; Lori Saunders; and Reshawn Richardson, Plaintiffs-Appellees, v. Janet RENO, in her capacity as Attorney General of the United States; Margaret Hambrick, in her capacity as Warden of the Federal Medical Center, Lexington, Kentucky; Kathleen Hawk, in her capacity as Director of the Bureau of Prisons; David Woody, in his capacity as Chief Trust Officer of the Bureau of Prisons; the Bureau of Prisons; and United States of America, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Douglas L. McSwain (argued and briefed), Gene L. Humphreys, Sturgill, Turner & Truitt, Lexington, KY, for plaintiffs-appellees.

Jeffrey Clair, Dept. of Justice, Appellate Staff, Civ. Div. (briefed), John F. Daly, U.S. Dept. of Justice (argued and briefed), Raphael O. Gomez, U.S. Dept. of Justice, Civ. Div., Barbara L. Herwig, U.S. Dept. of Justice Appellate Staff, Civ. Div., Washington, DC, David Bunning, Asst. U.S. Atty., Office of U.S. Atty., Covington, KY, for defendants-appellants.

Before: SUHRHEINRICH, BATCHELDER, and DAUGHTREY, Circuit Judges.

DAUGHTREY, Circuit Judge.

The defendants, Janet Reno 1, Margaret Hambrick 2, Kathleen Hawk 3, David Woody 4, the federal Bureau of Prisons, and the United States of America, appeal the issuance of a preliminary injunction by the district court. Pursuant to that injunction, the defendants are forbidden from proceeding as envisioned with plans to replace the collect-call telephone system available to federal prison inmates with a direct-dial system monitored by correctional facility employees.

Before this court, the defendants challenge both the propriety and the breadth of the injunction. Because many of the alleged justifications for issuance of the injunction are no longer relevant in this case, we conclude that the injunction should be modified in part and dissolved in part.

I.
A.

From the late 1970's until 1990, inmates in all federal correctional institutions wishing to make telephone calls to individuals outside the prison were required to make such calls on a collect-call basis. In fact, regulations governing inmate telephone usage specifically recognized that "[i]nmate calls shall ordinarily be made collect." 28 CFR Sec. 540.104 (1992). Beginning in 1990, however, without promulgation of new regulations on the subject, the Bureau of Prisons began converting the collect-call telephone systems in the federal prisons to a direct-dial inmate telephone service, referred to throughout the proceedings below as "ITS." By the time of the relevant proceedings in this litigation, the ITS system had been installed in 41 of the 72 federal prisons and medical facilities.

The previous collect-call system used in the prisons allowed inmates to make unlimited calls within the disciplinary restrictions of the penal institution. By contrast, the new ITS system in effect at the time of the district court proceedings afforded the inmates the opportunity to purchase direct-dial phone credits at the prison commissary only once a week and limited calls to conversations with individuals named on a list of people approved by correction officials. Each inmate could list no more than 20 numbers on that prisoner's call list. Through ITS, calls by a particular inmate to any telephone number other than those numbers contained on the inmate's call list were automatically blocked by the operators of the system. The call list could be amended by the inmate only quarterly to allow for non-emergency calls to other individuals. While the families and approved visitors of the inmates were routinely accepted for inclusion on the telephone lists, until as recently as March 1994, many prisons around the country followed written policies that automatically rejected as potential direct-dial recipients any court or any elected official. One federal penal institution also maintained a written policy automatically blocking any inmate calls to members of the news media.

Furthermore, under ITS procedures, a potential recipient of an inmate call, other than a family member or prison visitor, was required, prior to being placed on the inmate's approved call list, to complete a form listing information regarding the person's relationship with the inmate, whether the potential call recipient had ever been convicted of a crime, and whether the recipient received calls or written correspondence from any other inmates. If the potential recipient failed to complete and return the form, or if the recipient indicated a desire not to receive calls from a particular prisoner, calls from the inmate to that individual were automatically blocked and the potential recipient received no further consideration for placement on the call list.

The new ITS system was also inextricably linked with prisoner participation in the Inmate Financial Responsibility Program. This program was developed to provide a plan to allow inmates to meet the financial burdens resulting from the imposition of court-ordered fines and restitution, as well as other government obligations. Under the program, a designated amount of money is withdrawn periodically from the inmates' personal accounts to meet the financial responsibilities of the prisoners. As more money flows into an inmate's account, additional withdrawals for the program are made. Moreover, at the hearings on the requests for injunctive relief, evidence was adduced to establish that prison employees were informed that their employment evaluations and determinations regarding salary increases would be based in part on the level of participation in the inmate financial responsibility program in that particular correctional facility. As a further incentive for inmate participation in the program, the rules initially proposed by the Bureau of Prisons to govern the implementation and operation of the ITS system provided that "a new paragraph (d)(10) of [28 CFR] Sec. 545.11 would specify that refusal by an inmate to participate in the financial responsibility program or to comply with the provisions of the financial plan ordinarily shall result in the inmate's being limited to placing no more than one telephone call every three months."

Even under the ITS restrictions originally proposed by the Bureau, however, an inmate would still be allowed to make collect calls to an attorney to discuss legal matters. Although such collect legal calls are generally unlimited, the provisions of former 28 CFR Sec. 540.102 (1993) provided that a warden may, nevertheless, limit such communication if the inmate has an adequate alternative method of contacting counsel.

Money for at least a portion of the installation and operation of the ITS system is obtained from the Prison Commissary Fund. That Fund, a separate account in the United States Treasury, is comprised of money spent by inmates nationwide in the commissaries of federal correctional institutions. Pursuant to the provisions of a Department of Justice circular governing the control of prisoner funds at federal correctional institutions, however, any profits realized from the sale of commissary items are to be placed in a special "welfare fund" and are to be held in trust for disbursement with the approval of the Director of the Bureau of Prisons "for any purpose accruing to the benefit of the inmate body, as a whole, such as amusements, education, library, or general welfare work."

B.

In June and July 1993, subsequently consolidated lawsuits objecting to the installation of the ITS were filed by various inmates at the Federal Medical Center in Lexington, Kentucky, against the United States, the Bureau of Prisons, officials of the United States government, and officials of the federal prison system. On July 21, 1993, after the filing of the suits, the Bureau then published a proposed rule in the Federal Register seeking to "amend its rule on Telephone Regulations in order to provide for the operation of a debit billing system for inmates" and also seeking to amend the existing rule regarding the inmate financial responsibility program to provide "that an inmate who refuses participation in the inmate financial responsibility program is limited to one telephone call every three months, the minimum provided in existing Sec. 540.100." 58 Fed.Reg. 39096 (July 21, 1993).

On September 14, 1993, the district court granted the plaintiffs' request for a temporary restraining order in order to maintain the status quo in the operation of the telephone systems in federal correctional facilities pending a hearing on the claims raised in the complaints. On September 22, 1993, the plaintiffs filed a motion to certify a nationwide plaintiff class of federal correctional facility inmates, and that same day, friends and relatives of the named plaintiffs filed a motion to intervene as plaintiffs in the case in order to assert claims that their statutory and constitutional rights to privacy were infringed by the ITS requirements that certain recipients of inmate calls provide information to prison authorities regarding communications with other individuals. In light of the defendants' contention that they did not have sufficient time to respond to the plaintiffs' motions for certification of a nationwide class, the district judge withheld a ruling on the class certification motions at that time.

After an evidentiary hearing on the plaintiffs' motion for a preliminary injunction, the district court ruled that the plaintiffs had demonstrated both a substantial likelihood of success on the merits of their claims and the probability of irreparable harm if an injunction were not issued....

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