Nebraska Prison Telephone Lawsuit
The following is the actual complaint filed in the Nebraska
Courts on August 20, 1997.
(Back)
IN THE DISTRICT COURT OF LANCASTER COUNTY, NEBRASKA
NEBRASKA DEPARTMENT OF ) Docket 559, Page 261
CORRECTIONAL SERVICE INMATES )
BARRY McCROY, THOMAS NESBITT, )
STEVEN JACOB, DAVID DITTER, )
KENNETH KEEVER, GARY POPE, )
AND DONALD DREDGE, on behalf )
of all similarly situated )
individuals, now and in the )
future, )
)
Petitioners, )
)
vs. )
)
SPRINT COMMUNICATIONS CO., )
LIMITED PARTNERS & C.E.O's ) FOURTH AMENDED PETITION
(Unknown); LAURIE SMITH-CAMP, )
Nebraska Deputy Attorney ) FOR CIVIL RIGHTS
General;HAROLD CLARK,Director, )
Nebraska Department of ) DECLARATORY, INJUNCTIVE
Correctional Services, GEORGE )
GREEN, General Counsel, ) AND OTHER RELIEF
Nebraska Department of )
Correctional Services, TERRY )
EWING, Security Coordinator, ) (With Supporting Affidavit)
Nebraska Department of )
Correctional Services, KAREN )
SHORTRIDGE, Deputy Director, )
Nebraska Department of )
Correctional Services,FRANCIS )
BRITTEN, Deputy Warden of )
Nebraska State Penitentiary; )
LAWRENCE PRIMEAU and KAREN )
KILGARIN,former Directors,and )
LORI McCLURG,current Director, )
Nebraska Department of )
Administrative Services; )
NEBRASKA DEPARTMENT OF )
CORRECTIONAL SERVICES,and the )
NEBRASKA DEPARTMENT OF )
ADMINISTRATIVE SERVICES,State )
Agencies; and all other )
Employees acting in concert )
Therewith,in their respective )
Official, individual, and )
Private capacities, )
)
Respondents. )
______________________________ )
COMES NOW Barry McCroy, Thomas Nesbitt, Steven Jacob,
David Ditter, Kenneth Keever, Gary Pope, and Donald Dredge,
Nebraska Department of Correctional Service Inmates on behalf of
all similarly situated individuals, now and in the future, and
hereby bring this Civil Rights Action seeking a Temporary
Injunction, a Declaratory Judgment with a Permanent Injunction,
and such Monetary Damages as law and justice requires, plus all
fees and such other associated litigation costs against the
Respondents.
JURISDICTION
1). The above-named Petitioners, on behalf of all other
similarly situated individuals, now and in the further,
hereinafter referred to as the "Plaintiffs", invoke the Court's
statutory jurisdiction pursuant to N.R.S. §§ 24-302,
84-911 (1) & (2), 86-707.02 (1) & (2), and 86-811, in
conjunction with 25-2224 and such other relevant enabling laws
described herein.
2). That Constitutional jurisdiction is invoked pursuant
to the Court's inherent powers vested by the Nebraska
Constitution under Article V, Section 9, and Article I, Section
13.
3). The Court's jurisdiction is also invoked pursuant to
N.R.S. § 20-148, and Title 42, U.S.C., Sections 1983 and
1985 in accordance with Title 28, U.S.C., Section 1343, regarding
the First, Fourth, Fifth, Sixth, Seventh, Ninth and Fourteenth
Amendments plus Article IV, Section 1 and Article VI of the
Constitution of the United States, and in regards to Article I,
Sections 1, 3, 4, 5, 6, 7, 11, 12, 13, 19, and 26 plus Article
II, Section 1 of the Nebraska Constitution; along with
jurisdiction for Declaratory relief pursuant to N.R.S. §
25-21,149 et seq., and injunctive relief pursuant to N.R.S.
§ 25-1062 et seq..
4). That the Petition herein presents questions of law
and claims of both common and general interests to the members
plaintiffs, arising out of the same type and serial manner of
unlawful telecommunication transactions, occurrences, and policy
practices created and committed against the member plaintiffs by
the Respondents, hereinafter referred to as the
"Defendants". Such common and general interests,
transactions, occurrences, policy practices, and defenses
thereof, warrant the joinder of the member plaintiffs,
defendants, and causes of action claims described herein,
pursuant to the provisions of N.R.S. §§ 25-311, 25-320,
25-701, 25-705, and 25-21,159 (Cum. Supp. 1998).
5). That jurisdiction is also being sought under the
provisions of N.R.S. § 25-319 in accordance with the class
action criteria of Hoiengs v. County of Adams, 245 Neb 877
(1994), and Cullen v. New York State Civil Serv. Comn., 435 FS
546 (E.D. NY 1977) (appropriate class certification for 42 USC
§§ 1983 & 1985 actions upon 1st Amendment claims
involving conspiratorial coercion between public and private
entities). There are numerous nonmember parties and
telecommunication interests which would be affected herein by the
beneficial relief being sought. That these interests are
consistent with the plaintiff members though it is impractical to
bring all such parties to this action desiring the same outcome.
That at the appropriate time in a prudent and frugal manner,
notice will properly be given to allow such members of the class
or that of a sub/hybrid class to opt out of this action.
PARTIES
6). That the individual plaintiff members are Barry
McCroy, Thomas Nesbitt, Steven Jacob, David Ditter, Kenneth
Keever, Gary Pope, and Donald Dredge, who are inmates committed
to and confined at the Nebraska State Penitentiary (NSP) in
Lincoln, Nebraska, and the Omaha Correction Center (OCC) in
Omaha, Nebraska. That they are supervised under the custody of
the Nebraska Department of Correctional Service defendants as a
State agency, hereinafter referred to as the NDCS. They and all
similarly situated individuals, now and in the future, have
claims and causes of action that are set forth in this Fourth
Amended Petition.
7). That the co-defendants Sprint Communication Co.,
Limited Partners & C.E.O.'s (unknown), are companies licensed
to transact business in this State. Sprint's authorized Limited
Partnership subcontractors acting in concert under the direction
and control of Sprint, include: Magnasync Corporation &
C.E.O. (unknown); Smart Data Connections, Inc., & C.E.O.
(unknown); Huntel Systems, Inc. & C.E.O. (unknown); and
Talton Invision Telecom Co. & C.E.O. (unknown). That they
have contracted with the NDCS defendants by way of the Nebraska
Department of Administrative Service (NDAS) defendants, to
install, operate and maintain as the owner-provider in their
respective private capacities under color of state law or
otherwise, a new Inmate Calling Telephone System in all of
Nebraska's State correctional Facilities, hereinafter referred to
as the "ICS". The ICS permits the limiting, restricting,
monitoring, recording, and eavesdropping of oral telephone
conversations between the aforementioned inmates and other
similarly situated inmates, and the respective oral conversations
of those of the general public who are unincarcerated.
8). That the state co-defendant, Laurie Smith-Camp,
(former NDCS General Counsel), is a deputy Attorney General of
the State of Nebraska, authorized in absence or delegation of the
Attorney General, Donald Stenberg, to conduct and do all legal
business of the State, and for the ascertainment of justice, to
appear for the State and prosecute or defend in any judicial or
quasi judicial proceeding, civil or criminal, the interests of
the State.
9). That the state co-defendant, Harold Clarke, is the
Director of the NDCS agency, and within the scope of his
authority consistent with law, are the creating and enforcing of
NDCS policies, regulations and practices concerning the limiting,
restricting, monitoring and recording of inmate oral wire
telecommunications at the various state correctional facilities
regarding both the ICS and the State telecommunication system.
10). That the state co-defendant, George Green, is the
successor and current NDCS General Counsel, and within the scope
of his authority consistent with law, is responsible for
providing all legal advise to the NDCS, including the framing of
policies, regulations, and practices concerning the limiting,
restricting, monitoring, recording and eavesdropping of all
inmate oral wire telecommunications throughout the various
correctional facilities under the NDCS control regarding both the
ICS and the State telecommunication system.
11). That the state co-defendant, Terry Ewing, is the
Security Coordinator of the NDCS, and within the scope of his
authority consistent with the law, is responsible for the
creation and implementation of NDCS policies, regulations, and
practices concerning the limiting, restricting, monitoring,
recording and eavesdropping of all inmate oral wire
telecommunications at the various correctional facilities under
the NDCS control, regarding the ICS and the State
telecommunications system.
12). That state co-defendant, Karen Shortridge, is one of
the Deputy Directors of the NDCS along with being the Assistant
Director of all NDCS Adult facilities, and within the scope of
her authority consistent with law, is responsible for the
creation and implementation of NDCS policies, regulations, and
practices concerning the limiting, restricting, monitoring,
recording and eavesdropping of all inmate oral wire
telecommunications at the various state adult correctional
facilities under the NDCS control regarding both the ICS and the
State telecommunications system.
13). That state co-defendant, Francis Britten, is the
current NSP Deputy warden and past liaison and assistant to the
foregoing NDCS administrative defendants. Within the scope of his
current authority consistent with law, Britten is responsible to
the C.E.O. (warden) of the NSP charged with the same duties,
powers, and security matters delegated therein, or by the NDCS
director, that includes the creation and implementation of NSP
policies, regulations, and practices concerning the limiting,
restricting, monitoring, recording and eavesdropping of all
inmate oral wire telecommunications residing throughout the two
facilities (NSP-MSU) comprising the NSP institution regarding
both the ICS and the State telecommunication system.
14). That the state co-defendants Lawrence Primeau, prior
to the time of filing the original petition, along with Karen
Kilgarin, during the interim period of the filing of this 4th
Amended Petition, plus the current Lori McClurg, are the former
and present Directors of the Nebraska Department of
Administrative Services (hereinafter referred to as the NDAS),
and as such directors, were and are charged within the scope of
their authority consistent with law, for the centralized
direction of all state services and service agencies as created
and intended by the Nebraska Legislature. N.R.S. § 81-1101
(3). The duties of the NDAS director include and have included,
the supervision and management of a State centralized telephone
system for the sole purpose of conducting state business. N.R.S.
§ 81-1107 (6). Within the scope of these particular duties
is to appoint an administrator to head the Material and
Communications divisions under the control of the NDAS for the
day-to-day administering and coordination of the State's
centralized telephone system utilized by the various state
entities and respective employees for conducting all government
business, including the NDCS. N.R.S.§§ 81-1108 &
81-1120.17. These duties include the coordination and approval
consistent with law, of all state purchases, contracts, leases,
and uses of the State's centralized telecommunications system,
including those private line services, for ensuring that such
facilities and services are utilized to conduct only such state
business as intended and mandated by the Nebraska Legislature.
N.R.S. §§ 81-1120.01, 81-1120.03, 81-1120.17 to
81-1120.20, 81-1120.27, and 81-1120.28. The NDAS co-defendants
have also coordinated and approved the current ICS contracts
between the NDCS co-defendants and co-defendants Sprint and its
subcontracting partners, for the limiting, restricting,
monitoring, recording and eavesdropping of all inmate oral wire
telecommunications throughout the various state correctional
facilities under the NDCS control.
15). That the Nebraska Department of Correctional
Services (NDCS) and all its state employees acting in concert
therewith, is an agency of the State of Nebraska, and pursuant to
N.R.S. §§ 81-112, 83-171, 83-4,109 to 83-4,123, and
such other enabling statues, is responsible for the operation and
maintenance of the state correctional facilities, including but
not limited to, the two penal facilities (NSP & OCC) that
houses the named member plaintiffs in this law suit.
16). That the Nebraska Department of Administrative
Services (NDAS) and all its state employees acting in concert
therewith, is also an agency of the State of Nebraska, and
pursuant to N.R.S. §§ 81-112, 81-1101, and such other
enabling statues, is responsible for providing the general
overall administrative development and such necessary operational
services to all other state agencies and departments within the
state government, including that of the NDCS agency.
17). That each of the foregoing defendants herein, are
acting in concert and/or aiding & abetting each other by way
of an arbitrary and capricious ongoing conspiracy under color of
state law or otherwise in their respective official, individual,
and private capacities regarding plaintiffs' causes of action
claims described in this petition.
INTRODUCTORY STATEMENTS
18). That the following legal and factual basis for the
plaintiffs' claims and causes of action herein, has been drafted
by plaintiffs in propria persona without the aide of learned
counsel, and hence, they should be liberally construed in the
light most favorable to the plaintiffs. Haines v. Kerner,
404 US 519, 520-521 (1972). Also, any unincluded allegations of
apparent facts or law ought to be treated as part of these
following claims and causes of action for the purposes of
determining whether additional issues of law or fact should be
further investigated or included. Cf., Williams v.
Griswald, 743 F2d 1533, 1542-1543 (11th Cir. 1984).
19). That the State of Nebraska is unique in that the
Legislature has retained control over the NDCS, by delegating
only the day-to-day administration of its penal facilities to the
Executive Department of Government. However, the Legislature
still retains its constitutionally mandated power to Manage,
Control, and Govern all penal facilities in the State of
Nebraska. Neb. Const., Article IV, Section 19.
20). That, pursuant to N.R.S. § 81-112, all
Executive Department heads of the various state agencies, are
not empowered to prescribe any rules or regulations that are
inconsistent with law.
21). That, pursuant to N.R.S. § 83-4,111(1), the
NDCS is required by law to adopt and promulgate in accordance
with the provisions of the Nebraska Administrative Procedure Act,
N.R.S. § 84-901 et seq, any rule or regulation which would
infringe, diminish, forfeit, or penalize any right, privilege, or
private interest of the inmate residents and/or his or her
community relations of the general public, that he or she does
not otherwise retain or is entitled to under other provisions of
law. N.R.S. § 83-4,111(3).
22). That the plaintiffs, as convicted felons in the
State of Nebraska, have lost only certain delineated rights as
set forth in N.R.S. § 29-112 and the Nebraska Constitution.
That all other rights, privileges and private interests of the
plaintiffs are retained by Article I, Section 26 of the Nebraska
Constitution, the Ninth Amendment of the United State
Constitution, and such other provisions of law referenced herein,
as mandated by § 83-4,111(3) above. That the defendants
must afford by law the plaintiffs' rights, privileges, and
private interests guaranteed them through various state statutes,
the Constitutions of the United States and the State of Nebraska,
and applicable or controlling State and Federal case law. That
among those rights retained by the plaintiffs under both
Constitutions, are the freedoms of speech and
association, along with other constitutional rights
referenced herein. That among these guaranteed retained rights
secured by both Constitutions is the right to communicate with
persons outside the prison facilities by means of
telecommunications and in a private confidential manner.
Meier-Malek et al. v. Shortridge-Gunter et al., CV86-L-378
(1988).
23). That telephonic communication with NDCS inmates and
the member plaintiffs, is the only viable form of communications
for most of the family members and community relations of the
persons committed to the NDCS, thereby implicating a strong and
direct substantial public interest.
TITLE 42, U.S.C., SECTION 1997e EXHAUSTION OF ADEQUATE
ADMINISTRATIVE REMEDIES
24). That it is the contention of the plaintiffs, that
the exhaustion provisions of 42 USC § 1997e, do not apply to
this lawsuit under state court jurisdiction. Further, declaratory
judgement pursuant to N.R.S §§ 84-911 and 86-707.02,
along with 42 USC §§ 1983 & 1985, are totally
intertwined and identical in nature, and therefore under
controlling state law, does not require any administrative
exhaustion of so-called remedies. It is also the contention of
plaintiffs in accordance with the "inadequacy" provisions
of N.R.S. §§ 83-4,135 & 83-4,137 (Reissue 1994),
plus the further "inadequacy" provision of the NDCS A.P.A.
promulgated Rule & Regulation, Title 68, Rule 2.005 ("Other
Remedies not Precluded - having the force & effect of law),
there exists no "adequate" NDCS Administrative remedies
concerning the merits of this law suit, because, all the NDCS
Administrative grievance personnel recognized under the NDCS
A.P.A. promulgated Grievance Procedures, Rule 2 for resolving
such grievances, are the same administrative personnel acting in
concert, that are directly participating in and responsible for
violating the plaintiffs' rights, privileges and private
interests involved in this litigation. (See, Title 42, U.S.C.,
§ 1985 (administrative exhaustion not required where the
one-in-the-same administrator defendants are acting in concert
against party litigants seeking relief).). Further, an allegation
of lack of exhaustion, is an affirmative defense which requires
an evidentiary consideration. Plaintiffs will readily establish
the existence of both an "inadequate" and "futile" grievance
system in these matters upon various previously submitted
exhausted grievance resolutions by the plaintiffs already
utilizing the NDCS system, and by way of the overwhelming
grievance exhaustion evidence of record existing in this case.
Cf., Allen v. Amalgamated Transit Union Local 788, 554 F2d
876, 882-883 & (footnote #9) (8th Cir. 1997). In addition,
there exists no administrative remedies to exhaust when
concerning the Court's jurisdiction pursuant to the provisions of
N.R.S. §§ 20-148 and 86-811 (cf., Goolsby
v.Anderson, 250 Neb 306, 312 (1996); and for 42 USC
§§ 1983 & 1985, involving monetary damages.
CLAIM AND CAUSES OF ACTION
That the preceding paragraphs are incorporated by
reference to the following Claims and Causes of Action described
herein.
I - NDCS and NDAS UNLAWFUL CONSTRACTUAL CLAIMS & CAUSES OF
ACTION.
I-25). That in contracting with co-defendants Sprint and
its Subcontractor Partners to install, operate, and maintain as
the owner-provider of the ICS within the facilities operated and
controlled by the NDCS defendants, the NDCS and the NDAS
defendants have acted unlawfully and outside of their respective
powers conferred upon then, to wit:
I-25A). By expressed statutory declaration, the NDCS
defendants and those acting in concert therewith, maintain
custodial jurisdiction in accordance with the law, only over
those persons who have been lawfully committed to the NDCS, and
are conferred no authority over any private sector individuals of
the general public in this or any other State outside of any
facility operated by the NDCS. N.R.S. & 83-171. Also by
expressed statutory mandate, the NDCS defendants are required by
law to submit said agency's budgetary requirements to the
Nebraska Legislature for its approval and funding concerning any
necessary security upgrades or additions to the NDCS facilities
pursuant to N.R.S. § 83-908.
I-25B). That the NDAS and the NDCS defendants and those
acting in concert therewith, are only authorized by statutory law
to contract for and lawfully operate a telecommunication system
for use by governmental entities and their respective employees
in conducting State business. N.R.S. § 81-1120.27.
I-25C). That in contracting with co-defendants Sprint and
its Subcontracting partners to establish, implement, and operate
as the owner-provider, the ICS telecommunication system to be
used solely by the NDCS inmates and their respective community
relations in the private sector as described in this petition,
the NDCS and the NDAS co-defendants have acted outside of their
lawful authority in both their individual and official
capacities, and as executive state agencies, in violation of
Article II, Section 1 of the Nebraska Constitution and associated
laws. The ICS is totally unrelated to the conducting of state
business by state employees.
I-25D). That the NDAS and the NDCS co-defendants have
also illegally contracted with co-defendants Sprint and its
Subcontracting partners to further establish, implement, and
operate in a coercive manner, the ICS to unlawfully limit,
restrict, monitor, and record the oral wire telecommunications of
the NDCS inmate plaintiff members and their respective community
relations, in violation of Nebraska's telecommunication laws as
described in this petition.
II-CONSTITUTIONAL ACCESS INFRINGMENT CLAIMS & CAUSES OF
ACTION
II-26). That prior to the signing of the contract
between the co-defendants Sprint and it Subcontracting partners
and the NDCS, the inmate legal telephone policies and practices
were derived from litigation in the federal district court case
of Meier-Malek et al. v. Shortridge-Gunter et al.,
CV86-L-378 (1988). Federal district Judge Strom ordered that a
"proposal" be fashioned for the Court's approval that allowed
"inmates routine access to prison phone calls regarding legal
matters" and that "legal phone calls shall be allowed
between the hours of 9 a.m. and noon and 1:30 p.m. and 4:30
p.m.". The NDCS appealed to the Eighth Circuit Court of
Appeals, Meier et al. v. Shortridge, 855 F2d 858 (8th Cir.
1988), which held the District Court's order was not appealable.
Meier et al. v. Shortridge, supra, is a current standing
court ordered injunction against the NDCS co-defendants. No other
court order has taken its place, except for the complementary
10-7-97 Temporary Injunction Counterpart order issued in this
present case. The Meier injunction superseded State v.
Weikle, 233 Neb 81 (1986), and is controlling herein under
the Full Faith and Credit Clause of the United State
Constitution, Article IV, Section 1.
II-27). That on March 13, 1996, pursuant to a Memorandum
Directive issued by defendant Harold Clarke, there was a change
regarding the state telephone system involving access to inmates
for attorney-client communications and access to the courts,
contrary to the mandate of the court ordered Meier plan.
That change required there be a "verified matter pending that
needs immediate attention, or within two weeks" of a
prescheduled hearing. That the aforesaid policy went into effect
since the date of the memorandum directive. That the
aforementioned policy has caused irreparable harm to the inmate
plaintiff members. Plaintiff Thomas Nesbitt states that he became
aware of a false and misleading statement of fact made by Mr.
Kirk Brown, a member of the Nebraska Attorney General's office,
during the oral argument phase of his ongoing Habeas Corpus
appeal at the Eighth Circuit Court of Appeals; that at the time
he became aware of this substantial and egregious
misrepresentation of the facts in his case, Nesbitt could neither
adequately nor meaningfully contact his attorney or the court so
he could rectify the error. Following the new NDCS telephone
procedures, Nesbitt made numerous written requests throughout the
NDCS-NSP administration to contact his attorney or the court,
which were all denied by the NDCS defendants; and that the text
of the Eighth Circuit Opinion, which denied Nesbitt to any
relief, plainly relied on this false and misleading statement of
fact to affirm his conviction and sentence. The plaintiff Nesbitt
is serving a life sentence without the possibility of parole. The
NDCS defendants' policies and practices emanating from the March
13, 1996 Memorandum Directive, prevented Nesbitt from correcting
the record before this irrevocable prejudice accrued, resulting
in his appeal being erroneously denied. Such telecommunication
access denials to the courts and attorneys, continue to this day
in his ongoing criminal litigation and the present civil case
herein, substantially prejudicing his lawful and constitutional
access interests.
II-28). That on July 24, 1996, Administrative Regulation
116.1 was also revised by defendant Harold Clarke regarding the
use of the defendants State Telephone System. That portion of the
regulation dealing with attorney-client and court phone calls,
was deleted and suspended as follows:
Staff assisted phone calls may be provided to
inmates to Contact attorneys and/or courts if there is a
verified matter pending that needs immediate attention, or
attention within two weeks [of a pre scheduled hearing].
(Page 3, paragraph J-1-b; but compare page 6, at Reference
IV, Meier v. Shortridge.)
II-29). That the new Inmate Telephone Regulations' (A/R
205.3) involving both the State and ICS telephone systems, is
scheduled to go into effect unless restrained and enjoined. A/R
205.3 and all similar NDCS policies and regulations further
infringes upon those Constitutional protections underpinning the
court ordered plan announced after the Meier v. Shortridge
litigation. Specific regulations that are inconsistent with this
constitutional mandate, are:
a. Attorney/Client Calls, telephone calls between an
Inmate and attorney of record, which are eligible for
confidential status and are not recorded or monitored (business
telephone numbers only). To qualify for confidential status the
attorney must be a bona fide member of the Bar and communication
must be in the scope of the attorney client relationship.
(Regulation 205.3 Page 2-3);
b. Legal Call, a call to an attorney of record, bailiffs
and clerks of the court which can be conducted through the ICS or
staff assisted over the facility telephone system. Legal calls
involve situations where a hearing is pending within (two weeks)
and time is of the essence requiring approval by staff for an
inmate to use additional time blocks. (Regulation 205.3 Page 3.);
c. Legal calls may be approved by designated staff when
an inmate can demonstrate that time is of the essence requiring
them to make extra calls for the purpose of communicating with
their attorney of record, a bailiff or clerk of the court. Legal
calls will not be authorized merely for the purpose of setting a
date for a hearing or a motion. A hearing must be pending within
two (2) weeks of the request. Generally, inmates are expected to
use privileged mail or visitation procedures to communicate with
these entities.Such calls may be made through the ICS or staff
assisted using the facility telephone system. Upon a request for
a legal call, staff must verify the circumstances and approve the
call before it takes place. Calls to bailiffs or clerk of the
court through ICS are not eligible for confidential status. Staff
assisted calls to court administrative personnel will be directly
supervised by DCS staff. Legal calls are strictly limited to the
entities specified in this regulation. A record of legal calls
will be kept by the facility. (Regulation 205.3 Page 4.);
d. Each inmate may submit up to twenty (20) telephone
numbers representing social, attorney/client, and legal
calls.....(Regulation 205.3 Page 5.);
e. That the Regulation stating that an exception be
carved out if "time is of the essence, approval by staff for an
inmate to use additional time blocks" can be utilized violates
the attorney/client privilege; telephonic communications between
attorney and client should not be conditioned on pre-approval in
order to avoid recording or monitoring. (Regulation 205.3 Page
4.);
f. That the Regulation that "Legal calls will not be
authorized merely for the purpose of setting a date for a hearing
or a motion" is untenable as a call for this sole purpose can
escalate into a call where matters of a more sensitive nature are
discussed. Just as important, timeliness is a major concern for
complying with procedures and affording due process. That there
are no circumstances when legitimate legal calls to inmates that
monitoring or recording should be allowed. (Regulation 205.3,
Page 4.);
g. That the requirement that "upon a request for a legal
call, staff must verify the circumstances and approve the call
before it takes place" violates the privilege as the word
"circumstances" is so vague, that staff could require an Inmate
to divulge information that is privileged before the call would
be approved. (Regulation 205.3, Page 4);
h. That the Regulation that "Each inmate may submit up to
twenty (20) telephone numbers representing social,
attorney/client, and legal calls..." is restrictive in that an
inmate may find himself in a situation where because of newly
discovered evidence, a new appellate decision, or where he became
a party to a civil suit and does not have an attorney under
retainer on the list may need to make phone calls to retain an
attorney. Calls of those nature are privileged and should not be
subjected to monitoring or recording. (Regulation 205.3, Page 5);
i. That the Regulation that "Attorney business telephone
numbers will be clearly identified on the ICS Registration Form.
Unit staff will verify Attorney business telephone numbers to
submitting the ICS Registration Form to the CSA" has impediments
similar to those discussed in subparagraph (b) herein.
(Regulation 205.3, Page 5). Consequently many numbers are never
properly verified by the untrained, uncertified state employees
due to a complete lack of any actual penalties for such failure,
and due to a lack of confidentiality between the attorney and the
prospective client when first attempting to establish the
privileged relation;
j. That the Regulation that "Inmates are not permitted to
participate in three-way, call forward, or conference call
services. Use of the custom calling features may result in
electronic call termination and disciplinary action" is
untenable. On numerous occasions, if the attorney is out of the
office, his support staff would contact him at the number he can
be reached. If it is necessary to speak to an inmate, sometimes
that is the only way contact can be arranged. Many attorneys in
smaller offices have a "call waiting" feature on their phones.
Consequently, if another call comes in during the communication
to an inmate, it will be necessary to put the inmate on hold to
retrieve the call. Conversely, if the attorney is on the other
line and a call comes in from an inmate, then if counsel
temporarily left the incoming call to end the previous
conversation, this Regulation would be violated and the inmate
would be subject to possible disciplinary actions. That setting
up a conference call during the course of a communication with an
inmate is not uncommon. If an inmate has co-counsel or if an
inmate has different counsel on his trial than he now has on
appeal or in his post conviction action, the necessity for a
conference call can frequently occur. Those occasions can't
always be anticipated.(Regulation 205.3 Page 7);
k. RATES AND CHARGES. The costs of a local call is
$1.00 per call. (Regulation 205.3, Page 13). The cost charged is
a significant and unjustified overcharge. There has also been
substantial overcharging and double-billing concerning local and
long distance calls as described herein, subject to further
verifications through discovery of existing evidence. (205.3, p.
13)
II-30). That in regard to Pro Se Litigants, the standing
federal court injunction of Judge Strom in Meier v.
Shortridge, supra, provides that "inmates can make telephone
calls to any attorney and the courts". However, Regulation 205.3
specifically denies all pro se inmates the opportunity of calling
court officials, who do not accept collect calls, and
without being subjected to limitations, restrictions, monitoring,
recording, and eavesdropping by the defendants and/or any
passer-by during such calls. This includes for the setting of
hearings, obtaining information, and for teleconference calls.
E.g., see N.R.S. § 25-910.
II-31). That the defendants ICS telephones denies all
telecommunication access to the courts because Nebraska's courts
and other jurisdictions, simply do not accept collect calls
from anyone, whether being station-to-station,
person-to-person, local or long distance. The ICS therefore
denies to the plaintiffs, all timely and otherwise access to
petition the courts for the conducting of legal state business.
Among countless others, said access was denied to plaintiff
Nesbitt when attempting to contact the court bailiff of Lancaster
District Court Judge Steven Burns, for the setting of several
hearing dates, including on February 17, 1998, February 18, 1998,
February 24, 1998, and several more during the months of January
through June of 1999, for the resolution of certain pending
litigation matters in the present case.
II-32). That plaintiff Nesbitt, along with plaintiff
Ditter, were also denied both actual and constructive access to
the court in the present case regarding their respective forma
pauper status. First, these plaintiffs were obstructed from
calling the clerk's office to check the pleading/information
docket data to ascertain if their respective certified account
sheets for forma pauper consideration had been automatically sent
and filed with the court by the NDCS defendants after requesting
copies of the same in February of 1999, pursuant to the Court's
1-27-99 order. Thereafter, both Nesbitt and Ditter were also
barred constructive access when they were prohibited in their
propria persona status from calling opposing counsel to find out
if their February requests had indeed been received by the NDCS
defendants acting in concert, and if so, why said requests had
not been honored and complied with in a prompt manner. As a
result, both Nesbitt and Ditter incurred substantial prejudice to
their property interests by way of the court on 4-8-99,
subsequently penalizing each plaintiff $140.00 in
unwarranted costs, while having their respective credibility
erroneously tarnished and damaged in the eyes of the presiding
Judge for this involuntary failure on their part to provide such
documentation to the court, that Nesbitt and Ditter had no
control or access to.
II-33). That since February 1999, plaintiff Jacob has
been trying to get the record in his criminal case brought down
to the law library at the NSP, so that he can prepare his
postconviction relief petition. He has sent numerous kites to the
NSP records manager and several letters to the Lancaster District
Court Clerk concerning this matter, and has still not received
the documents he requested. Jacob can't call the clerk by way of
the state or ICS telephone systems to find out why not, because
he has no hearing pending within two (2) weeks, as required by
A/R 205.3 & A/R 116.1. The NSP records manager, Frank
Delgado, acting in concert with the NDCS defendants simply pleads
ignorance of the matter, and keeps saying he will pass Jacob's
written requests on to the clerk. Without being able to talk
directly to the clerk while she has these records in front of
her, plaintiff Jacob has no way of obtaining the records he needs
in order to prepare the factual pleadings in his postconviction
cause of action. (State v. Jacob, Doc. 676, Page 298,
Lancaster District Court, S-95-0885 Neb. S.Ct. Docket.). The
defendants' policy regulations and practices are obstructing and
denying Jacob his Constitutional access rights to petition the
courts for redress of his state conviction, now actionable by way
of 42 USC § 1983. Further, in certain civil suits,
co-plaintiff Jacob is also awaiting the bill of exceptions that
the court reporter has given to the Clerk of the District Court,
but the Clerk has not yet forwarded these documents on to the
Clerk of the Nebraska Supreme Court. Jacob has no way of finding
out why because of the defendants' restrictive telephone policies
and practices. Even the clerk of the Supreme Court has written to
the District Court Clerk and asked and received no response to
date, substantially prejudicing the timely preparation of Jacob's
appellate briefing. (Shuck v. Jacob, Doc 443 Pg. 103,
Lancaster Country; Doc S-99-117. Neb. S.Ct.).
11-34). That the defendants' limiting, restricting, and
warrantless or judicially unauthorized monitoring and recording
policies and practices of telecommunications between the
nonconsensual plaintiff members and the unincarcerated
individuals in the private sector of the general public,
infringes and abridges state and federal constitutional rights,
remedies, procedures and prohibitions concerning the freedoms of
speech, association, religion, with the right to privacy thereof,
and access to petition the government for redress of injuries and
grievances. U.S. Const., First Amendment; and Neb.
Const., Article I, Section 4 & 5; along with the rights,
privileges, and private interests secured by the Fifth, Sixth,
Ninth, and Fourteenth Amendments of the United States
constitution, and Article I, Section 1, 3, 11, 13, and 19
retained by Section 26 of the Nebraska Constitution and N.R.S
§ 83-4,111(3), in accordance with the Separation of the
Powers doctrine of Article II, Section 1 of the Nebraska
Constitution.
II-35). That warrantless or judicially unauthorized
monitoring, recording, and pen-registering of oral wire
communications of unincarcerated citizens in the private sector
of the general public, for use in crime
prevention/detection/prosecution, and the further providing of
such involuntary nonconsensual intercepted telecommunication and
pen-registering to law enforcement personnel or other state or
federal employees acting in concert or aiding or abetting each
other without judicial authorization issued upon probable cause
for those specific reasons delineated in N.R.S. § 86-703,
violates Constitutional and statutory prohibitions against
unreasonable searches and seizures. United States
Constitution, Fourth Amendment, Nebraska Constitution,
Article I, Section 7; and N.R.S. §§ 86-304 (under
28-519 [2]), 86-702, 86-707, and 86-707.3
III - OBSTRUCTION OF JUSTICE ACCESS CLAIMS & CAUSES OF
ACTION
III-36). That in conjunction with plaintiffs' forgoing
Constitutional Claims and Causes of Action, the current Nebraska
Deputy Attorney General, Laurie Smith-Camp, (former NDCS General
Counsel), in return for the State of Nebraska realizing
tens-of-millions of dollars in federal funds, did unlawfully
conspire with the NDCS defendants to impede, hinder, obstruct and
defeat plaintiffs' actual and constructive constitutional
telecommunication access rights, and the equal protection
thereof, as said rights, privileges, and private interests
pertain to and are necessary for the adequate and meaningful due
course of law judicial litigation.
III-37). That in 1995, the co-defendant Camp
participated with the Federal Civil Justice Reform Act committee
in formulating the federal Prison Litigation Reform Act.
(P.L.R.A. of 1996). Several statutory provisions of said Act,
grant substantial federal funds to the NDCS co-defendants,
conditioned upon these defendants' ability to increase the
average amount of prison time actually served by the plaintiff
members for violent and nonviolent offenses alike. Title 42,
U.S.C., Sections 13701 to 13708. The receipt of these federal
funds are specifically mandated for the expansion and building of
new correctional facilities, ensuring the defendants' gainful
employment and job related security. The P.L.R.A. became
effective in April of 1996, the same time the NDCS defendants
commenced to limit and restrict all of the plaintiffs'
telecommunication access rights and privileges to attorneys and
the courts by way of co-defendant Clarke's department-wide March
13, 1996 Memorandum Directive. This obstruction of justice
conspiracy implemented through the NDCS defendant's various
policy regulations and practices, today utilizes and encompassed
Sprint's ICS telephones, along with the State's telecommunication
system for the same unlawful purposes.
III-38). That this ongoing obstruction of justice
conspiracy against the plaintiffs involving their foregoing
Constitutional telecommunication access right and privileges to
the courts and attorneys, has also infringed upon plaintiffs'
further statutory access rights involving the protective
provisions of N.R.S. §§ 28-901 (obstruction of
justice), and 28-919 (tampering & interference with witnesses
& evidence), through violating plaintiffs' telecommunication
access rights under § 28-1311, § 86-304 (pursuant to
28-519 [2]) and 86-707 (2) & (3) (prohibiting
telecommunication interference's), contrary to the statutory
prohibitions of § 28-924 (official misconduct) and
§28-926 (Oppression under color of office). (See person
& public servant defined under § 28-109 [16] & [18],
along with 28-916.01 [16] waiving defendants' sovereign &
qualified immunities in their official capacities.) These acts
and unlawful conduct of the defendants also violate Nebraska's
conspiracy and aiding & abetting laws of § 28-202 and
§28-206. Since the 1996 commencement of this
telecommunication conspiracy perpetrated by the defendants,
plaintiffs have incurred substantial and irrevocable prejudice
upon their actual and constructive fundamental rights of access
to petition the government, with the equal protection thereof,
involving their respective litigation injuries and grievances as
described throughout this 4th Amended Petition. These
telecommunication infringements have resulted in plaintiffs
serving longer incarceration sentences. This ongoing conspiracy
against the plaintiffs by the defendants is actionable pursuant
to the provisions of Title 28 USC § 1343, and Title 42 USC
§ 1985 (2) & (3).
III-39). That defendants' ongoing telecommunication
obstruction of justice conspiracy has also impeded, hindered,
obstructed, and defeated the presentation in this law suit, of
additional NDCS co-plaintiff party litigants from joining this
action with their common and respective causes of action claims.
Such further joinder of causes and claims would also have
included the respective community relation members of the named
plaintiffs, along with those of the additional non-member
co-plaintiff litigants concerning these meritorious claims and
associated causes of action presented in this petition.
IV - STATUTORY ACCESS-PRIVACY INFRINGEMENT CLAIMS &
CAUSES OF ACTIONS
(A - Administrative Procedure Act
Infringements)
IV-A40). That NDCS Regulation 205.3 and A/R 116.1
including all similar institutional regulations or memorandums
that have been or already are scheduled for implementation, are
subject to and govern by the Administrative Procedures Act
(A.P.A.) pursuant to the Legislative mandate of N.R.S. §
83-4,111 to 83-4,112.
IV-A41). That NDCS Regulation 205.3 and 116.1, including
all similar institutional telephone regulations, policies,
memorandums, or practices, must adhere, consistent with law.
(§§ 81-112 & 83-171), to the promulgation
procedures set forth in the Administrative Procedures Act, N.R.S.
§§ 84-901 et seq., as to the plaintiffs and
their public community relations. The following are A.P.A.
provisions not complied with in implementing A/R 205.3 &
116.1:
i. "...For purposes of the act, every rule and regulation
which prescribes a penalty shall be presumed to have general
applicability or to affect private rights or interests." N.R.S.
§ 84-901(2) See A/R 205.3 at pages 5, 6, 9, and 11;
ii. "No rule or regulation of any agency shall be valid as
against any person until five days after rule or regulation has
been filed with the Secretary of State. No rule or regulation
required under the Administrative Procedure Act to be filed with
the Secretary of State shall remain valid as against any person
until the certified copy of the rule or regulation has been so
filled on the date designated and in the form prescribed by the
Secretary of State. The filing of any rule or regulation shall
give rise to a rebuttal presumption that it was duly and legally
adopted. N.R.S. § 84-906(1);
iii. "A rule or regulation adopted after August 1, 1994, shall
be invalid unless adopted in substantial compliance with the
provisions of the Act..." N.R.S. §84-906.01(2);
iv. "An agency shall maintain an official rule making or
regulation making record for each rule or regulation it adopts or
proposes by publication of notice..." N.R.S. § 84-906.01(1); (Emphasis Added.)
v. "The record shall contain copies of all publications with
respect to the rule or regulation; copies of any portion of the
public rulemaking or regulation making docket containing entries
relating to the rule or regulation; all written petitions,
requests, submissions, and comments received by the agency and
all other written material prepared by the agency in connection
with the proposal or adoption of the rule or regulation. An
official transcript of oral presentations made in a proceeding
about the proposed rule or regulation or, if not transcribed, any
tape recording or stenographic record of those presentations, and
any memorandum prepared by the hearing officer summarizing the
contents of those presentations; A copy of the rule or regulation
and the concise explanatory statement filed with the Secretary of
State; A copy of any comments on the rule or regulation filed by
a legislative committee, and a description ...of the fiscal
impact on state agencies, political subdivision, and regulated
persons." N.R.S. 84-906.01(2)(a)-(h); (Emphasis added) and
vi. "No rule or regulation shall be adopted, amended, or
repealed by any agency except after public hearing on the
question of adopting, amending, or repealing such rule or
regulation. Notice of such hearing shall be given at least thirty
days prior thereto to the Secretary of State and by publication
in a newspaper having general circulation in the state. All such
hearings shall be open to the public..." N.R.S. §
84-907.
IV-A42). That this total failure by the state defendants
and defendant Sprint under color of law to comply with the
foregoing A.P.A. procedures and legislative mandates, renders
Regulation 205.3, 116.1, and all other similar inmate telephone
memorandums, policies and practices invalid and void pursuant to
the provisions vested under N.R.S. § 84-911(2). That all
NDCS Inmate Telecommunication Rules and Regulations have been
adopted and placed into practice without any compliance of the
A.P.A., violating plaintiffs' constitutional and statutory
telecommunications rights, privileges and privates interests.
(B - WIRE INTERCEPT ACT INFRINGEMENTS)
IV-B43). That Regulation 205.3 is unlawful as the
aforesaid regulation is in violation of the State's Wire
Intercept Statutes, N.R.S §§ 86-701 et seq..
That the plaintiff members still retain their statutory and
constitutional rights and privileges to privacy when using oral
wire telecommunications. That persons of the general public from
the private sector who will be party to any such intercepted
telephone communications, they also fall under the umbrella of
protections afforded by the aforementioned Statutes. That the
inmate plaintiffs and their unincarcerated community relations of
the general public, can not legally consent when they are
"required to comply" with the telephonic regulations. Countless
violations of the aforesaid statutory law currently applies to
all the defendants. And any person or persons acting in concert
or aiding & abetting who violates those sections of the
statutes are guilty of a Class IV Felony for each violation.
N.R.S §§ 86-702, 86-707, and 86-707.03.
IV-B44). That neither the State co-defendants or other
NDCS employees acting in concert or aiding & abetting
co-defendants Sprint and its Subcontractor Partners, are
authorized by law to engage in any law enforcement activities
involving the prevention or detection of crime or the enforcement
of penal laws governing this State, as specifically mandated by
the Nebraska Legislature pursuant to N.R.S. § 81-1401 (4a
& 4b (Cum. Supp. 1998)); as defined in the Nebraska Wire
Intercept statute of § 86-701(10) and other related
subsections.
IV-B45). That Nebraska's statutory law specifies that any
judicially authorized intercepted telecommunications are
legislatively mandated to "be conducted in such a way as to
avoid and prevent interception of confidential communication TO
or FROM persons of the classes described in sections 20-146 and
27-503 to 27-506 unless there exists probable cause to believe
such persons have committed, are committing, or are conspiring to
commit offenses specified in 86-703." N.R.S § 86-705(6). (Emphasis added) Under penalty of law, any
unauthorized oral wire communication intercepts, whether
involving the general privacy or the following
specific confidentiality as interpreted and adopted by
the Nebraska Supreme Court by way of its 1973 Proposed Rules of
Evidence, such intercepts are unlawful and prohibited. N.R.S.
§§ 86-304, 86-702, 86-707, and 86-707.03, plus 28-1311.
(a - Attorney-Client Confidentiality Privileges)
IV-B45a). That pursuant to N.R.S. § 27-503 (1) to
(4), communications between a lawyer and client shall remain
confidential. That under § 27-503 (1d), a "communication" is
deemed"...confidential if not intended to be disclosed to third
persons other than those to whom disclosure is in the furtherance
of the rendition of professional legal services to the client or
those reasonably necessary for the transmission of the
communication." Such "third persons" contemplated
and not son includes one's spouse, parent, business associate and
co-client, among others. (See Neb.S.Ct. Adoption of such
"third persons" in Nebraska's 1973 Proposed Rules of
Evidence, pg. 65, Rule 503.) That the privilege of
confidentiality and the prevention of disclosure pursuant to
§ 27-503 (2a) to (2e), also extends to communications
between a person/client (see § 27-503 (1a)- client defined)
and the following pertinent relationships: i. the client and his representative and his lawyer or
his lawyers representative;(§ 27-503 [2a]); and, ii. between the client and representatives of the
client. § 27-503 [2e]).
(b - Physician-Patient Privacy Privileges)
IV-B45b). That pursuant to N.R.S. § 27-504 (1) to
(4), communications between a physician and patient shall remain
confidential; the statutory definition of a physician includes a
person licensed or certified as a psychologist under the laws of
any state ... who devotes all or part of his time to the practice
of clinical psychology, including a professional counselor.
N.R.S. §27-504(1b & 1d). Any third persons who
are participating in the treatment or are involved in the
communications, including family members, are also included
within the privilege. N.R.S. § 27-504(1e). The manner of
confidentiality is also the same as that afforded the
attorney-client privilege.
(c - Husband-Wife Privacy Privileges)
IV-B45c). That pursuant to N.R.S. § 27-505 (1) to
(3), communications between husband and wife shall remain
confidential. Under section (1a) of this statute, a "confidential
communication" is defined to mean a communication which is made
privately by any person to his or her spouse with no intention
that such communication be disclosed to any other person.
(d - Clergy-Practitioner Privacy Privileges)
IV-B45d). That pursuant to N.R.S. § 27-506 (1) to
(3), communications to clergypersons is privileged if made
privately and not intended for disclosure. The manner of
confidentiality is also the same as that afforded the
attorney-client privilege.
(e - Media-Source Privacy Privileges)
IV-B45e). That in order to establish and protect the free
flow of information to the public concerning governmental
functions, the Nebraska Legislature created the Free Flow of
Information Act for safeguarding the confidential gathering of
such information both to and from members of the media.
N.R.S. § 20-144 et seq..
IV-B46). That on October 14, 1997, plaintiff Thomas
Nesbitt requested access to the state telephone system for a
legal call to attorney Donald Fiedler involving this present
case, from the housing-unit (HU) -2 manager, Melvin Rouf, and/or
any NDCS-NSP staff personnel on duty. (See Meier plan).
After waiting a couple of hours, Nesbitt finally received
approval from Rouf; that Nesbitt was then taken by HU-2 case
worker Copeland acting in concert, to 'D' gallery staff office
where Copeland placed the call to Fiedler through the NSP
switchboard employee, also acting in concert on the state
telephone system. Earlier, Copeland had been on duty but was not
authorized to make such calls. Nesbitt's call was accomplished
using a one-time new cordless telephone (Vitech, VT1900, Digital
900 mhz phone) that had just been temporarily hooked-up in the
'D' gallery office for testing purposes, apparently at the behest
of co-defendant Ewing. Nesbitt was handed the cordless
receiver/transmitter by Copeland and instructed to leave the
office and go out on the gallery to talk with Mr. Fiedler where
all of the inmates on the gallery could readily eavesdrop upon
Nesbitt's and Fiedler's attorney-client conversation. In the B/D
control station, staff personnel could also listen in on said
conversation by way of the 'D' gallery intercom speaker system
(model K-C-4906 [6 channel] 'Chief Master Station', Talk-A-Phone
Co.). At the beginning of Nesbitt's privileged conversation,
Nesbitt was again interrupted by way of Copeland further
instructing Nesbitt over the intercom, to take the phone to his
cell because Copeland could easily overhear Nesbitt's
conversation over the gallery intercom system. Nesbitt did as
instructed, but when he got inside his cell, the communication
transmission began breaking up. Approximately a minute or two
later, Copeland entered Nesbitt's cell and terminated his
attorney call even though he had just began. Nesbitt gave the
cordless phone to Copeland and told her to explain to attorney
Fiedler why his call was being terminated. Copeland did so for 15
seconds then walked away with the phone. Around 3:00 p.m. later
that day, Nesbitt witnessed HU-2 mgr. Rouf removing this phone
from the HU taking it to the NSP admin. Building. Plaintiff never
got to discuss his legal concerns with attorney Fiedler, which
eventually led this attorney to withdraw his representation from
this case. (See the 11-4-97 affidavit of record of plaintiff
Nesbitt, filed as Exhibit #42.)
IV-B47). That in the course of seeking to regain his
freedom through Nebraska's system of justice, it became necessary
for co-plaintiff Gary Pope to place certain legal calls through
his mother, Dolly Lyons, his brother Terry Pope, and his sisters,
Cheryl and Carol, in order to obtain and relay vital confidential
information to several attorneys, one of which was Mr. James
Stanton. In the furtherance of the rendition of such legal
services through these third parties dealing with his criminal
case, and certain other matters regarding the Board of Parole for
commutation purposes, the intended recording, monitoring,
limiting and restricting of all such inmate telecommunications,
has basically foreclosed and prejudiced these attempted legal
service communication and expected relief. (See Exhibit J, filed
with the original petition in this case.)
IV-B48). That co-plaintiff David Ditter is currently
treating with a clinical psychologist, Dr. Chris Walker, who is
licensed in the State of Colorado to practice psychology. Mr.
Ditter filed an informal Grievance Resolution request to maintain
his Physician-Patient privileges for confidential communications,
which Ditter pays for by way of sending Dr. Walker sufficient
funds to pay for the consultation and telephone calls. In
response to this grievance request, Warden Hopkins acting in
concert with the defendants, stated the following: "Telephone
conversations between an inmate and a mental health staff person
in the community are not exempt from recording and monitoring in
the new inmate calling system policy. No change in the policy is
being considered at this time. As you are aware, the Penitentiary
offers mental health care services housed at the facility. In
addition, should your psychologist decide to visit you, the
conversation between you and the psychologist would not be
monitored or recorded."
IV-B49). That although the defendants offer some form of
medical and mental health care services, there are wanting
circumstances when an inmate desires to retain a private
physician or psychologist to attend to their treatment. The
reasons may vary from the quality of care and simple access and
availability to the caregiver. However, no matter what the
reason, telecommunication are to remain confidential consistent
with law and not be subject to monitoring, recording, limiting,
nor restricting such treatment, especially since no security
interests are indicated should a one-on-one visit occur.
IV-B50). That co-plaintiff Barry McCroy in his affidavit
filed with the original petition, set forth his substantial
concerns about the defendants' telephone policies and practices
that manifestly forms the confidentiality matters of this
petition. McCroy stated: "I am married and had maintained a
strong family relationship with my wife, Brigette McCroy, through
our telecommunication to the Omaha area where she resides.
Sometimes our husband-wife telephone conversation, which occur
almost daily, become very intimate and personal in nature when
dealing with a wide range of one's spousal relations and
responsibilities. I have recently been informed by a memorandum
that the NDCS now intends to eavesdrop on all our confidential
telephonic conversations by recording and monitoring all such
phone calls. Both my wife and myself strongly object to such
eavesdropping by the State and its employees into our private
affairs and marital interests which only promote an adverse
effect of further straining our relationship beyond that of what
my current incarceration already imposes." (See Exhibit H)
IV-B51). That the plaintiffs also maintain well founded
concerns about defendants' new telephone policies and practices
that forms the subject matter basis of this petition because all
phone calls, including those involving any calls to a priest,
rabbi or minister, are simply going to be recorded by the
defendants acting in concert, which is an affront and violation
to the freedom of religion rights prohibited by the separation of
the Church and State under Article I, Section 4 of the Nebraska
Constitution and the First Amendment of the United States
Constitution guaranteeing such freedoms.
IV-B52). That also, members of the clergy are frequently
unavailable for prison visits, as their own congregations require
them to attend to pastoral duties. Occasions arise frequently
when inmates need to confide in members of the clergy. Those
confidences are not meant, consistent with law, to be subjected
to eavesdropping by the defendants acting in concert, or anybody
else. Currently, the NDCS defendants, have now during the course
of this law suit, or since November 19, 1998, done away with all
formal religion services by way of precedent policy since
plaintiffs raised the issue in their original petition about the
lack of the formal services for those of the Judaism persuasion.
IV-B53). That on February 16, 1998, a twelve minute
telephone call was placed by the co-plaintiff Thomas Nesbitt
utilizing the defendants' ICS telephone to Mr. Butch Mabin, a
reporter of the Lincoln Journal Star. Neither Nesbitt nor Mr.
Mabin consented to having their private conversation monitored
and recorded by the defendants. The defendants monitored and
recorded this oral wire telecommunication in violation of N.R.S.
§§ 86-702, 86-707, and 86-707.03. (See § 86-705
(6) listing §20-146 communications to & from the media
as prohibited from wire interception.)
IV-B54). That Regulation 205.3 does not bestow any options
upon the plaintiffs. Either an inmate agrees to having their
private telephonic communication monitored and recorded or they
simply don't have access to a phone. Regulation 205.3 makes it
clear that the aggrieved parties (the inmates and their
unincarcerated community relations of the general public sector)
consent is coercive, not voluntarily obtained, in violation of
N.R.S. § 27-512 as adopted and interpreted by the Nebraska
Supreme Court through its 1973 Proposed Rules of Evidence, at
pgs. 85-86, Rule 512. The language in the following provisions of
the regulation are pertinent:
i. Telephonic usage by inmates is a privilege that may
be restricted or withheld to protect the public, to ensure the
safety, security, or good order of the department's rules and
statutes (Reg. 205.3, Purpose);
ii. Operational procedures shall be developed to ensure
that the use of telephones by inmates are controlled and
supervised. Protection of the public, institutional safety and
security, crime prevention/detection/prosecution and inmate
access are the order of priorities ...Inmates shall have
access to this regulation and are required to comply with
its provisions. (Reg. 205.3, General) (Emphasis added to Bold
only);
iii. All inmates telephone calls utilizing the ICS and
not eligible for confidential status shall be electronically
recorded and may be monitored by authorized department staff
barring equipment failure. (Reg. 205.3, pg. 8); and,
iv. Use of the ICS by the inmate, and acceptance of the
call by the called party, constitutes consent to record
and monitor the conversation by Department Staff. (Reg. 205.3,
pg. 9). (Emphasis Added.)
IV-B55). That some of the plaintiff members, including
co-plaintiff Nesbitt, have refused to waive their confidentiality
rights and privileges accorded them by State law by refusing to
sign any NDCS Information "consent" form for recording and
monitoring purposes, as indicated by the nonconsensual petition
filed with the court as Exhibit 34. By not signing the form,
those inmate plaintiffs, in addition to the other penalties
imposed by A/R 205.3, have not been allowed since September of
1997, to use the State or the ICS telephones for any community
relation purposes, thereby resulting in substantial irreparable
harm to those plaintiff members and their respective family and
community relationships so affected, in violation of N.R.S.
§§ 86-304 and 86-707.
IV-B56). That, the defendants warrantless and
unauthorized interception of closed wire oral telecommunications
along with pen-registering to be provided to law enforcement
personnel or other state or federal employees acting in concert
or in aiding & abetting each other, for the use in some
unknown criminal investigations, prosecutions, or for any other
type or proceedings, (see N.R.S. § 86-712), usurps the
vested function and authority of the Nebraska Judiciary in
violation of the Nebraska Constitution, Article II, Section 1,
regarding the distribution of governmental powers in the State of
Nebraska.
C - CONFIDENTIAL COMMUNICATIONS TO OR FROM MEMBERS OF
THE LEGISLATURE - STAFF & STATE OMBUDSMAN INFRINGEMENTS)
IV-C57). That, while also protected under the general
privacy prohibitions of Nebraska's foregoing Wire Intercept laws,
in accordance with N.R.S. § 81-1120.27 (3), "no calls
made to or by a member of the Legislature which are sensitive
or confidential in nature shall be required to be disclosed",
and that "communications transmitted on or through the
communication system shall be the privileged information of the
sender and receiver." N.R.S. § 81-1120.28. That the
statute defines 'sensitive or confidential in nature' to mean:
"Either the member of the Legislature or the caller
would reasonably expect the nature or the content of the call
would not be disclosed to another person without the
consent of the member and caller." (§ 81-1120.27).
This privilege also encompasses the Legislature's staff and the
its investigatory arm of the State Ombudsman pursuant to the
confidentiality provisions of N.R.S §§ 27-509, 27-510.
81-8,253, and 81-8,254. Such confidentiality includes any form of
pen-registering and the dissemination thereof, outside of the
exception provision afforded the actual telephone provider-owner
for billing purposes under N.R.S. § 86-707.03.
IV-C58). That the very nature of telecommunications
between members of the Legislature, engaging in legislative
business and inmates would more likely than not deal with
institutional controls or grievances that if divulged could
result in repercussions for the inmate.
IV-C59). That during a legislative session, it is very
difficult for a state senator with their workload to communicate
with an inmate by any other means than through a telephone. That
the defendants' policy and practices in question would violate
the privileged communications that is afforded members of the
legislature and the inmates' fundamental rights to petition the
government for redress of grievances.
IV-C60). That while involved in official state
investigations for the Legislature, several telecommunications
between Mr. Davis (Mr. Lux's assistant Ombudsman for the NDCS)
and the co-plaintiff Nesbitt since February 16, 1998, have been
monitored and recorded by the defendants through the use of their
ICS telephone apparatus and by way of the NSP staff defendants
acting in concert, eavesdropping upon said conversations using
the HU-2D gallery intercom system. Neither Mr. Davis nor Mr.
Nesbitt voluntarily consented to having these private and
confidential conversations monitored, recorded, or eavesdropped
on by the defendants or anyone else. Also, the collect-only
billing for the ICS calls by Mr. Nesbitt to Mr. Davis, were
overcharged by the co-defendants Sprint to the State Ombudsman's
office, instead of providing Mr. Nesbitt with the use of the
reduced or free state 'CENTREX' telecommunication system for
placing all such business calls from one state entity to another.
While involved in official state investigations for the
legislature, several previous telecommunications between Mr.
Davis and Mr. Nesbitt were also afforded no confidentiality when
using the NDCS State Telephone System located in staff offices.
Instead of HU-2 Case Mgr. Richardson and again Case mgr. Duncan
stepping outside their respective offices for confidentiality
purposes and viewing Mr. Nesbitt through the window in the office
door for whatever security reasons, both of these defendants
acting in concert, simply refused to step outside their offices.
These calls not only had to be terminated by the parties for a
lack of confidentiality; but said calls could only be conducted
at the time if Mr. Nesbitt had a court hearing pending within two
weeks somewhere in the country as required by A/R 205.3 and
similar telephone rules and regulations of the NDCS defendants.
IV-C61). That in placing several ICS telephone calls to
Senator Ernie Chambers by Mr. Nesbitt since February 16, 1998,
said calls were also monitored, recorded, and eavesdropped on
without the voluntary consent of these parties, exactly like
those above telephone calls placed to Mr. Davis by Mr. Nesbitt in
the proceeding paragraph. Also the same type of overcharging
occurred by co-defendants Sprint to Senator Chambers office,
regardless of whether a hearing was pending in some courtroom
within two weeks.
(D - TELEPHONE STATION CONFIDENTIALITY DEVICE VIOLATIONS)
IV-D62). That under penalty of State law, the ICS
telephone stations installed throughout the NDCS by co-defendants
Sprint and it's Subcontracting partners, allows for the NDCS
co-defendants acting in concert, to eavesdrop and monitor
plaintiffs confidential and private telecommunications by failing
to comply on a weekly basis since September of 1997, with the
necessarily required confidentiality devices per telephone
station mandated pursuant to the statutory provisions of N.R.S.
§§ 86-201 and 86-202. The aforesaid violation
constitute a Class III Misdemeanor with a $500.00 fine
and/or 3 months incarceration per telephone station each week
Sprint and its Partners fail to comply with this Nebraska code.
V - GENERAL ICS TELECOMMUNICATION CLAIMS & CAUSES OF
ACTION
V-63). That the new ICS phone systems of the defendants
contains built in mechanical or electronical safeguards that are
causing the plaintiffs rights, privileges and private interests
enumerated throughout this petition, to be further infringed,
including that of incorrect rate charging. That the aforesaid
problems include, but are not limited to the following:
i. Connection failures due to rotary dial telephone
equipment, and party line disconnects;
ii. Connection failures due to station-to-station format;
instead of person-to-person and station-to-station formats;
iii. Connection failures due to privileged telephone
conferencing disconnects;
iv. Connection failures due to privileged telephone calls
placed on call waiting;
v. Connection failures due to privileged telephone calls
placed on call holding.
vi. Connection failures due to privileged telephone calls
to answering machines and pagers;
vii. Unlawful overcharging and double-billing practices
by the telephone provider; and,
viii. Unlawful monopolizing practices by telephone
provider.
V-64). That co-plaintiff Donald Dredge originates from
Plainview, Nebraska, where telephone party lines and rotary dial
phones are in common usage by the local community and telephone
provider. Prior to co-defendant Sprint's ICS telephones going
into operation in 1997 throughout the NDCS, Mr. Dredge was able
to communicate on a weekly basis with his family members and
community relations of the general public sector by way of the
then existing NDCS Aliant telephone provider of Lincoln,
Nebraska. However, after the ICS went into operation, Mr. Dredge
has had to endure one problem after another, including multiple
telephone blocking, disconnects, and various other interruptions
when attempting to contact his family and community relations.
Mr. Dredge had made written complaint after complaint to the
defendant, which have fallen on deaf ears, leaving him with no
telecommunications. In 1998, plaintiff wrote his local community
telephone provider, Plainview Telephone, who verified for him
that these telecommunication obstruction and interferences
originate with Sprint, the telephone provider who initiates his
calls. These telecommunication obstructions and interference's
has now strained his family and community ties, in violation of
N.R.S. § 86-304 and 86-707(2) & (3). Apparently such
telecommunication obstruction and interference practices are
being unlawfully utilized by Sprint in a monopolizing practice
and manner to force the affected parties to switch to Sprint
Communication Co. as their sole telephone provider, in violation
of State and Federal law. (See N.R.S. § 86-803 [5]).
Compounding these obstruction injuries, the few times Mr. Dredge
was successful in obtaining telephone contacts with his family
and community relations over the last 20 months, neither Mr.
Dredge now his family and community relations have ever
voluntarily consented to have their respective oral wire
telecommunications limited, restricted, monitored, recorded, or
eavesdropped on by anyone.
V-65). That Meier v. Shortridge, ante.
Indicates that in the event the inmate's attorney is located in
the same community as the prison facility, calls to counsel
shall be free. Regulation 205.3, as written, imposes an
unlawful charge of $1.00 per call for all local calls, even when
the average local call is usually no more than $.35.
V-66). That the NDCS and NDAS defendants have failed to
make available the State 'CENTREX' telecommunication system to
the plaintiff members for placing reduced or free and
confidential state business calls to and from members of the
Legislature and officers of the court. Like the State Courts,
almost every member and office of the Legislature, plus other
vital departments of government, accept no collect calls, local
or long distance, station-to-station, or person-to-person,
whether from a pre-taped ICS machine or from a live individual.
V-67). That co-plaintiff Kenneth Keever, has been
maintaining strong family ties with his wife and sons and other
family and community relations from the general public sector by
way of telecommunications each week. That Mr. Keever, on a
monthly basis, sends home to his wife a portion of his state
earnings, specifically earmarked for paying his family bills,
including those for his telecommunications. That since the
defendants' ICS took over service from Aliant Telephone Co. of
Lincoln, Nebraska in September of 1997, Mr. Keever and his wife
have been continuously experiencing substantial amount of
overcharging and double-billing service charges by defendant
Sprint through their local telephone provider. These overcharges
and double-billing has now accrued in the several hundreds of
dollars with no relief insight upon the Keever's limited
resources. Such unlawful rate and charging services are
actionable pursuant to N.R.S. § 86-811. Further, Mr. Keever,
nor his wife and family, or his other community relations who he
communicates with by telephone, have ever voluntarily consented
to having their respective oral wire telecommunications limited,
restricted, monitored, recorded, or eavesdropped on by the
defendants, resulting in increasing the incarceration strains
already imposed upon his family and community ties.
.
RELIEF
68). That the Plaintiffs are seeking immediate relief
pursuant to N.R.S. § 25-1063(2), as its necessary to
restrain the actions of the Defendants because if Regulation
205.3 and A/R 116.1 takes effect, it will infringe upon and cause
irreparable injuries to plaintiffs' Constitutional and Statutory
rights, privileges and private interests described throughout
this Petition. Therefore, the plaintiffs are seeking a Temporary
Restraining Order as the aforementioned Policy and practices has
been scheduled to go into effect since before and after June 1,
1997, and may continue in effect during the pendency of this
action if said Temporary Restraining Order is not issued.
69). That the Plaintiffs are entitled to the relief
sought. Further, that statutes set forth in this Petition
authorizes a Temporary Restraining Order, a Temporary Injunction,
and a Declaratory Judgment with a Permanent Injunction thereof,
and Damages including those of Statutory and Compensatory, plus
all fees and other litigation costs.
70). That the Plaintiffs are seeking an Order for a
Temporary Injunction after a hearing is held until such time as a
jury trial can be held for purpose of granting a Declaratory
Judgment and Injunction, permanently enjoining the implementation
of the Regulation 205.3, A/R 116.1 and all similar telephone
regulations and memorandums.
71). That pursuant to N.R.S. §§ 25-21,149 et
seq., 86-707.02 (2a), and 86-811, Plaintiffs are entitled to any
and all preliminary and such other Declaratory and Injunctive
relief as may be appropriate through both civil and criminal
sanctions against the Defendants.
72). That pursuant to N.R.S. §§ 86-707.02 (2b
& 3b), and 86-811, Plaintiffs are entitled to all Actual and
General Compensatory Damages as provided by law, including those
of overcharging and double-billing. Further, such Damages are
being sought in treble the amount as provided for by N.R.S.
§ 28-926, whether the Defendants are or were acting in their
respective official, individual, or private capacities under
color of law or office.
73). That pursuant to N.R.S. § 84-911 (1 & 2),
the Plaintiffs are entitled to Declaratory Judgments concerning
their respective Constitutional and Statutory rights, privileges,
and private interests described in this Petition, and to the
invalidation of all NDCS telephone Rules & Regulations in
violation of those rights, privileges, and private interests of
the Plaintiffs and their community relations of the private
public sector.
74). That pursuant to the provisions of N.R.S. §
20-148, and Title 42, U.S.C., Sections 1983 and 1985, the
Plaintiffs are also entitled to any and all preliminary and such
other Declaratory, Injunctive, and Compensatory relief as
appropriate by law and justice through both civil and criminal
sanctions against the State Defendants in their individual
capacities, and Sprint and its Subcontracting Partners in their
respective private and corporate capacities.
75). That in addition to such other relief described
herein, Plaintiff Nesbitt is entitled to Actual Compensatory
Damages in the amount of $1,000,000.00 for litigation access
injuries, plus, $250,000.00 in General Compensatory Damages
for loss of all telecommunication with his family members since
September, 1997.
76). That all of the incarcerated
Plaintiffs are indigent and therefore, pursuant to affidavits of
indigency, are proceeding in forma pauperis status filed and
granted with the previous and current Petitions during the course
of this action, resulting in the waiver of all fees, litigation
costs, and such other expenses in connection with the prosecution
of this law suit.
WHEREFORE, the Plaintiffs, who are Nebraska Department
of Correctional Service Inmates BARRY McCROY, THOMAS NESBITT,
STEVEN JACOB, DAVID DITTER, KENNETH KEEVER, GARY POPE, and DONALD
DREDGE, on behalf of all similarly situated individuals, now
and in the future, pray that the Relief set forth in the Fourth
Amended Petition be granted together with all other relief which
may be just as afforded by law.
RESPECTFULLY SUBMITTED
By the Below-Named Plaintiffs
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICE INMATES:
BARRY McCROY, THOMAS NESBITT, STEVEN JACOB, DAVID DITTER,
KENNETH KEEVER, GARY POPE, and DONALD DREDGE
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