Arney v. Simmons

• Decision Date: 30 September 1998
• Docket Number: No. 95-3036-DES.,95-3036-DES.
• Citation: 26 F.Supp.2d 1288
• Parties: Jouett Edgar ARNEY, Fred E. Baker, Robert Bookless, and Gary Lee McColpin, Plaintiffs, v. Charles E. SIMMONS, Defendant.
• Court: U.S. District Court — District of Kansas

26 F.Supp.2d 1288

Jouett Edgar ARNEY, Fred E. Baker, Robert Bookless, and Gary Lee McColpin, Plaintiffs, v. Charles E. SIMMONS, Defendant.

No. 95-3036-DES.

United States District Court, D. Kansas.

September 30, 1998.

John F. Carpinelli, Topeka, KS, Kirk W. Lowry, Palmer & Lowry, Topeka, KS, Todd R. Stramel, Jeffrey D. Wicks, Lisa J. Covault, Larrie Ann Brown, Topeka, KS, Lynette F. Petty, Topeka, KS, Thuy D. Pham, Topeka, KS, for Jouett Edgar Arney, Fred E. Baker, Robert A. Bookless, Gary Lee McColpin.

Linden G. Appel, Kansas Department of Corrections, Topeka, KS, for Kansas Secretary of Corrections.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

The four plaintiffs, while confined in Lansing Correctional Facility, Lansing, Kansas, (LCF) and with appointed counsel filed this civil rights complaint pursuant to 42 U.S.C. § 1983, alleging constitutional violation in the system for providing telephone access to inmates at the prison. The Secretary of Corrections for the State of Kansas is the sole defendant. Plaintiffs seek declaratory and injunctive relief. The matter is presently before the court upon defendant's motion for summary judgment. Having considered all the pleadings and materials in the file, the court makes the following findings and order.

At the outset, the court denies in part and grants in part plaintiffs' motion to strike defendant's exhibit 3 (Doc. 175), the affidavit of Darrell Perrin. The motion to strike the entire affidavit on the basis that Perrin was not previously identified as a witness is denied. The court is not persuaded that exclusion of this evidence at this time is required by pertinent legal authority, particularly in light of the fact that defendant's witness list could be amended to include Perrin. The court grants plaintiffs' motion to strike as to paragraphs 8 and 14 of the affidavit which the parties agree are improper statements of opinion. Thus, the affidavit is admitted, with paragraphs 8 and 14 stricken.

UNCONTROVERTED FACTS

The court finds the uncontroverted facts to be as follows. On November 21, 1994, the Kansas Department of Corrections (KDOC) implemented a new inmate telephone system at Lansing in which inmates use coinless telephones ("inmate phones") to place collect only calls within the United States. The "inmate telephone system," including what is known as the "inmate call control system," is effective for all KDOC facilities and is provided pursuant to a contract between KDOC and American Telephone and Telegraph, Inc., Southwestern Bell, Inc., and Telematic, Inc. These "inmate phones" are located in common use areas of the facility.

To use inmate phones, a prisoner must complete a Telephone Privilege Request form listing the complete telephone number, name, and address of the person to be called, and their relationship to the inmate. This data is entered by an on-site Telematic Technician into the phone system's data bank, associating it with the inmate's personal identification number (PIN). Plaintiffs use the inmate phones to call family, friends and attorneys.

The "inmate call control system" permits recording and monitoring of inmate calls to outside parties made on the inmate phones, and has an automatic blocking feature which immediately terminates a call to an outside party when that outside party attempts to either transfer that call or convert it to a three-way call. One of the KDOC's stated aims in implementing the system was to reduce the ability of inmates to form criminal conspiracies by way of such transferred or three-way calls, so as to reduce the likelihood of escape, introduction of contraband into the facilities and perpetration of frauds.

Current KDOC policy allows inmates to maintain only 10 numbers on their Telephone Privilege Request forms, even though the phone system is capable of handling more. The number ten was arrived at after discussions involving the executive staff of KDOC Central Office including the Secretary of Corrections and all facility wardens. Ten was determined to be a reasonable number based upon the KDOC's concern as to the difficulty of verification of names, addresses, relationships, and phone numbers on the list. Additionally, it was thought that limiting the number of individuals on the telephone list would assist the Department in the investigation of criminal activity and decrease the opportunity for misuse of the phone system through fraudulent schemes, formation of criminal conspiracies and/or harassment of victims. LCF officials have authority to allow more than 10 names on inmate telephone lists in certain situations. However, there is no policy or written procedure informing inmates of this allowance or guiding the discretionary authority of prison officials.

Inmates must include attorney telephone numbers on their list, and attorneys must be identified as such. After attorney numbers are verified by contact with the attorney, they are added to the data bank. The on-site technician stated in a deposition that verified attorney numbers are entered by her into the system in such a way that the monitoring and recording feature of the inmate call control system is blocked. Thus, if the number has been properly identified and entered, the call cannot be monitored or recorded. Plaintiffs do not adequately refute defendant's evidence that calls placed to attorneys on "inmate phones" are not monitored or recorded.

The Department of Corrections' current policy permits inmates to change phone numbers on the list at 120-day intervals, specifically at the time of their program and classification reviews conducted by correctional counselors on the unit team of their assigned housing unit. KDOC officials selected this interval because they believed it permitted an organized and rational approach to the subject of phone number changes by requiring the changes to be submitted through the correctional counselor at the time the counselor is focusing exclusively on the inmate involved, and at an interval which balances the inmate's interest in maintaining a current list of phone numbers with the facility's need for good order and minimization of administrative burden occasioned by phone number changes.

Upon occasion, it is necessary to permit changes in phone numbers more often than every 120 days. Since the filing of this action, the KDOC has promulgated a new policy (LCF General Order 16,104) which permits changes in phone numbers more often in certain cases. Until advised by their attorney, plaintiffs were unaware of this policy change which was effective March 15, 1996. KDOC policy does not limit the duration or number of calls an inmate may make.

Plaintiffs Arney and McColpin state that they have been denied the request to put a public official on their list. In depositions, KDOC officials testified that KDOC and LCF generally permit phone calls to inmates by judges or other court officials, and other public officials, federal and state, when the request for that call is made by the judge or official. The inmate is then permitted to use a state facility phone in the unit team office of his or her housing unit. Current written policy at LCF does not prohibit the placing of public official phone numbers on an inmate list, and provides for use of facility phones to contact such "privileged persons" not accommodated by the inmate phone system. (LCF Order 16,104, effective 3/15/96).

"Facility phones" are phones located in unit team offices which are a part of the state prison telephone system rather than the inmate system. Current KDOC policy authorizes use of "facility phones" by inmates as an alternative to "inmate phones" on a case-by-case basis when such use is deemed to be in the best interest of the inmate's well being and/or when placing a collect call is imprudent, usually in the event of, but not limited to, a family or personal emergency. It is undisputed that phone calls to attorneys from "facility phones" are subject to being monitored. Unit team offices, where these phones are located, contain sensitive materials pertaining to each inmate then assigned to that housing unit, in "unit team files" or in the form of pending paperwork, such as program and classification reviews, custody level worksheets, parole eligibility reports, etc. These offices have large windows which might allow for observation from the outside, and the desk and file cabinets located in the office are equipped with locking devices.

Inmates are not permitted to make international calls on the inmate phones, but may seek permission to make such calls on "facility phones."

All KDOC inmates, including plaintiffs, are permitted visitation with individuals designated on their visitation list, and are permitted correspondence with those and other individuals outside the prison. (LCF General Order 16,101).

All KDOC inmates, including plaintiffs, are also permitted access to the courts through the use of legal mail as authorized by the provisions of K.A.R. 44-12-601, court appearances as ordered by the court, and by legal telephone calls.

Plaintiff McColpin has had attorneys listed on his approved phone call list including Lynette Petty and Kirk Lowry. Plaintiff McColpin was permitted to use the facility phone in the unit team office of his assigned cell house to contact Ms. Petty, Mr. Lowry, and Mr. Schoenhoffer in April and May, 1996.

Plaintiff McColpin stated that his confidential attorney/client phone call to his attorney Mark Schoenhoffer, was monitored on or around June 20, 1995. McColpin alleged that he knows this because security guard Matthew Howard repeated the confidential contents of that phone call to him¹. Plaintiffs McColpin, Arney, Baker, and Bookless state that attorney/client phone calls using "facility phones" are routinely monitored by the unit team manager or security guards.

Notices which were placed in the yard and housing units at one time, advising inmates of monitoring on "inmate phones", have...