McCroy v. Clarke, No. A-05-1358 (Neb. App. 5/6/2008)

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BARRY McCROY ET AL., NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES INMATES, APPELLEES AND CROSS-APPELLEES, v. HAROLD CLARKE ET AL., APPELLEES AND CROSS-APPELLANTS, AND STEVEN BLAIR ET AL., INTERVENORS-APPELLEES AND CROSS-APPELLEES, AND MICHAEL T. CADDY ET AL., INTERVENORS-APPELLANTS AND CROSS-APPELLEES.

No. A-05-1358.

Court of Appeals of Nebraska.

Filed May 6, 2008.

CARLSON, MOORE, and CASSEL, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

CASSEL, Judge.

INTRODUCTION

After the Nebraska Department of Correctional Services (DCS) implemented a new telephone system for prison inmates and administrative regulations limiting telephone access at prison institutions, several inmates sought injunctive and other relief, asserting infringement of various constitutional rights. Other inmates intervened. The district court ultimately made permanent a temporary injunction granting partial relief against DCS and its personnel. The court also rejected certain intervening inmates' attempt to dismiss without prejudice their claims. Three intervening inmates appeal, and DCS and certain DCS personnel cross-appeal. We conclude that (1) the inmates were entitled to dismiss without prejudice those claims not finally adjudicated prior to their motion to dismiss and (2) the inmates were not entitled to injunctive relief.

BACKGROUND

On June 1, 1997, Harold W. Clarke, the director of DCS, approved administrative regulation No. 205.3 (AR 205.3). Although AR 205.3 was amended multiple times after its initial approval, the June 1997 version is the version that is at issue in this case and therefore the version we consider.

AR 205.3 established operational procedures governing inmates' telephone access at all DCS facilities. The purpose of AR 205.3 was to provide a policy and procedure for the implementation and operation of an "Inmate Calling System" (ICS) throughout DCS facilities.

AR 205.3 established a call-scheduling system granting DCS inmates "reasonable and equitable" telephone access, which for general population inmates consisted of up to one time block per day. Only collect calls could be placed using ICS telephones, but AR 205.3 provided for the use of non-ICS facility telephones by inmates for noncollect calls, when necessary.

AR 205.3 defined the different types of calls that inmates could make on ICS telephones and developed rules specific to the type of call placed. For example, DCS was prohibited from recording or monitoring attorney-client calls, which were defined as calls "between an inmate and attorney of record [at a business telephone number] which are eligible for confidential status." In order to qualify for confidential status, "the attorney must be a bona fide member of the Bar and the communication must be in the scope of the attorney-client relationship."

AR 205.3 distinguished attorney-client calls from legal calls. AR 205.3 defined legal calls as those to

attorney[s] of record, bailiffs[,] and clerks of the court which can be conducted through the ICS or staff assisted over the facility telephone system [and] involv[ing] situations where a hearing is pending within two (2) weeks and time is of the essence requiring approval by staff for an inmate to use additional time blocks.

A further provision specified that calls to bailiffs and clerks of the court placed on ICS telephones were not eligible for confidential status. AR 205.3 also provided that although calls to the ombudsman were not defined as legal calls, they were eligible for confidential status and were not to be recorded or monitored.

AR 205.3 also established restrictions on whom inmates were permitted to call. It specifically prohibited inmates from calling DCS staff and other inmates and restricted inmates from calling "cellular telephone/pager numbers, media, 411, 600, 700, 800, 900, or 911 numbers." Inmates were also not permitted to participate in "three-way, call forward, or conference call services." Use of such calling features would result in electronic call termination. AR 205.3 also provided that inmates were to use the mail or personal visits to communicate with the media.

AR 205.3 required all inmates to complete an ICS registration form in order to qualify for telephone access under the new regulation. The mandated registration form permitted each inmate to submit up to 20 telephone numbers representing social, attorney-client, and legal calls. Each inmate was only allowed to place calls to telephone numbers identified on the registration form he or she submitted. The inmate was required to clearly identify attorney business telephone numbers on his or her ICS registration form, which had to be verified before the inmate could call such numbers. Pursuant to AR 205.3, changes to inmates' call lists were generally allowed once every 90 days, but the warden had the authority to make exceptions for extraordinary circumstances on a case-by-case basis.

AR 205.3 stated, "All inmate telephone calls utilizing the ICS and not eligible for confidential status shall be electronically recorded and may be monitored by authorized [DCS] staff barring equipment failure." The regulation provided that use of the ICS by inmates and acceptance of calls by the called parties constituted consent to recording and monitoring. AR 205.3 required DCS staff to post written notice, printed in English and Spanish, at each telephone location advising inmates of the policy on recording and monitoring and required DCS staff to print notice of the recording and monitoring policy on each ICS registration form. In addition, all calls placed through the ICS were to be "branded" with an automated announcement reciting the status of recording or monitoring. AR 205.3 further required each inmate to sign and submit a registration form acknowledging acceptance of the conditions for telephone use. If an inmate refused to sign a registration form, he or she would not acquire telephone privileges.

AR 205.3 also defined when inmates could use non-ICS facility telephones. Inmates were permitted, per AR 205.3, to use facility telephones on a limited basis, such as in emergency situations, to conduct legal calls (which could also be made using ICS telephones), and to participate in telephonic judicial hearings. AR 205.3 specified that telephonic judicial hearings were eligible for confidential status and were not subject to recording or monitoring, but could be directly supervised by staff.

On August 20, 1997, seven DCS inmates initiated the present action by filing a petition in the district court for Lancaster County, Nebraska. They requested that the court enjoin implementation of AR 205.3 and the ICS. The action was brought against Sprint Communications Co., L.P., the telephone company that contracted with DCS to install and operate the ICS; Clarke; Terry Ewing, the security coordinator at DCS; and DCS and all of its employees in their official and individual capacities. The inmates asserted that the ICS and AR 205.3 were unlawful and violated their rights by authorizing DCS officials to monitor and record their telephone calls. On September 15, the seven inmates and one additional inmate filed an amended petition. The amended petition was substantially similar to the original petition and requested relief against the original defendants and also against Lawrence S. Primeau, the director of the Nebraska Department of Administrative Services (DAS). (Both Primeau and Sprint were subsequently dismissed as defendants.)

The district court held a hearing and, on October 7, 1997, issued a temporary injunction barring implementation of AR 205.3 to the extent that it limited communications between DCS inmates and the media, courts, attorneys, and state senators. The court also ordered DCS to make the ICS available to inmates under regulations which ensured that communications between inmates and the courts, attorneys, and state senators would be free from the risk of monitoring or recording. The court also ordered DCS to permit inmates to conduct 800 and 411 calls, conduct calls to cellular telephones, and utilize call-forwarding, call-waiting, and conference-call features.

On December 2, 1998, the district court designated the case as a class action and designated the class as all persons who were, or in the future would be, incarcerated in a facility under the jurisdiction and control of DCS. On April 12, 1999, the court dissolved the class action designation. Thereafter, the action was continued by various DCS inmates in their individual capacities.

The operative petition, the fourth amended petition, was filed on July 12, 1999, by seven DCS inmates against the original defendants and various additional defendants, including Karen Shortridge, a deputy director of DCS. The inmates sought a temporary injunction, a temporary restraining order, declaratory judgment, a permanent injunction, damages, and fees. They set forth multiple allegations and causes of action. We recite only those which are relevant to the issues before us.

The inmates asserted that AR 205.3 infringed upon the constitutional protections underpinning the U.S. District Court order in Meier v. Shortridge, No. CV86-L-378, slip. op. (D. Neb. Oct. 1, 1997). They also asserted that AR 205.3 denied them access to the courts and their attorneys, substantially prejudicing their lawful and constitutional access rights. They alleged that AR 205.3 violated 42 U.S.C. § 1983 (2000). They further alleged that the provisions of AR 205.3 mandating monitoring and recording of their telephone calls infringed upon their state and federal constitutional rights to freedom of speech, association, and religion; privacy; and access to petition the government for injuries and grievances. They finally alleged that AR 205.3 unlawfully failed to comply with the Nebraska Administrative Procedure Act (APA), Neb. Rev. Stat. § 84-901 et seq. (Reissue 1999), rendering it invalid and void.

In October 1999, inmates ...