Yang v. Missouri Department of Corrections et al

Filing 72

MEMORANDUM AND ORDER re: 54 MOTION for Summary Judgment filed by Defendant John Doe, Defendant Allan Hughes, Defendant Tom Clements, Defendant Fred Johnson, Defendant Omer L. Clark, Defendant Angela Riddell, Defendant Don Roper, De fendant Cindy Griffin, Defendant William (Bill) Stange, Defendant Patricia Cornell, Defendant George Lombardi, Defendant K. Malloy, Defendant Mariann Atwell, Defendant Dwayne Kempker, Defendant G. Phagley. IT IS HEREBY ORDERED that defendant s' Motion for Summary Judgment (#54) GRANTED IN PART and DENIED IN PART. IT IS HEREBY ORDERED that defendants are granted Summary Judgment on plaintiff's First Amendment claim regarding his Chinese language mail. Signed by District Judge Stephen N. Limbaugh, Jr on 7/23/14. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
RICHARD YANG,

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Plaintiff,
v.
GEORGE LOMBARDI, et al.,
Defendants.

Case No. 1:12CV92 SNLJ

MEMORANDUM AND ORDER
This is a 42 U.S.C. § 1983 action in which the plaintiff alleges prison officials
infringed on his federal constitutional rights by improperly censoring his incoming and
outgoing Chinese language mail and by limiting his access to outgoing international
telephone calls. Presently before the Court is defendants’ Motion for Summary Judgment
(#54). The matter is fully briefed and ripe for disposition.
I.

Case Summary
The following facts are undisputed except where indicated. Plaintiff is a prisoner

incarcerated in the Missouri Department of Corrections (“MDOC”). Plaintiff alleges that
the defendant MDOC employees serving in many different capacities --- George
Lombardi, Tom Clements, Mariann Atwell, Patricia Cornell, Fred Johnson, Don Roper,
Jeff Norman, Omer Clark, William Stange, Allen Hughes, Angela Riddell, Dwayne
Kempker, Karen Malloy, Gary Phegley, and Cindy Griffith --- violated his First
Amendment right to free speech by depriving him of communicating with his family in

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Mandarin Chinese. Additionally, plaintiff alleges the prison regulation violated his rights
to due process and equal protection under the Fourteenth Amendment.
The plaintiff, a naturalized American citizen born in China, made several attempts
to write to his family in China in the Chinese language. His family in China also
attempted to write to him in Chinese. Although Chinese is plaintiff’s first language,
plaintiff is able to speak and write in English well, as evidenced by his pleadings to the
court. Plaintiff’s relatives speak only Chinese and are unable to understand English.
Following each attempted Chinese-language communication, mail clerks at both
correctional institutions where plaintiff was housed, the Potosi Correctional Center
(“PCC”) and the Southeast Correctional Center (“SECC”), censored plaintiff’s mail and
sent him notice that his mail could not be delivered. Starting in December 2007,
personnel at the Potosi Correctional Center rejected one holiday card written in Chinese
in addition to two Chinese language letters. On January 15, 2008, plaintiff filed an
Informal Resolution Request (“IRR”) with PCC officials requesting that he be allowed to
communicate with his family in Chinese. The request was denied per MDOC
Institutional Services Policy IS 13-1.1 “Offender Mail Procedures.”
On February 19, 2008, Plaintiff filed an Offender Grievance requesting that he be
able to send and receive Chinese language mail and that MDOC should provide him with
an interpreter under MDOC Institutional Services Policy IS 13-1.1. Defendant Roper
denied the request on April 11, 2008. Plaintiff filed a Grievance Appeal on April 17,
2008, which stated the same request in addition to being able to call his family on

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occasion. His appeal was denied on June 17, 2008 because the cards and letters were
written in Chinese, and current resources MDOC had did not allow them to be translated.
Plaintiff did not receive another censorship rejection notice from MDOC until
January 12, 2011. By this time, plaintiff was housed in SECC. Plaintiff followed the
same complaint process as described above, first filing an IRR, then an Offender
Grievance, and finally a Grievance Appeal. Each time, his complaint was denied. As a
result, plaintiff filed this lawsuit.
On October 25, 2011 wrote a letter to Defendant Norman suggesting that it was
within MDOC’s reasonable efforts to translate plaintiff’s mail to hire a Chinese language
translator in MDOC’s Jefferson City legal department or send his mail to be translated at
the Iowa Bureau of Refugee Services in Des Moines, Iowa. Plaintiff did not receive a
response to the letter, and his outgoing Chinese mail continued to be rejected by the
censorship committee following the plaintiff’s letter. Rejections continued until March
2012.
On November 14, 2011, plaintiff wrote to Securus Company, the telephone
provider for SECC, inquiring as to why he was unable to make phone calls to China.
Securus Company replied the following day stating that there was no international calling
access. Since the filing of this lawsuit, international calling has been established at
SECC, and defendants assert that the plaintiff has the ability to make international calls to
China.
MDOC Institutional Services Policies IS 13-1.1 and IS 13-1.2 outline MDOC’s
procedures for censoring incoming and outgoing mail. “A reasonable effort will be made
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to translate incoming and outgoing mail not in English.” MDOC Institutional Services
Policy IS 13-1.2 (III.E). Per IS 13-1.2 (III.C.2. h), MDOC will censor incoming written
materials which “are or appear to be written or recorded in code or a language that staff
are unable to interpret with current available resources.” Additionally, general outgoing
correspondence is determined to pose a risk to “security, good order, or discipline,” and
is therefore subject to censorship, when the correspondence “is written in a language that
staff is unable to interpret with current resources.” MDOC Institutional Services Policy
IS 13-1.2 (III.d.2. g).
II.

Summary Judgment Standard
Courts have repeatedly recognized that summary judgment is a harsh remedy that

should be granted only when the moving party has established his right to judgment with
such clarity as not to give rise to controversy. New England Mut. Life Ins. Co. v. Null,
554 F.2d 896, 901 (8th Cir. 1977). Pursuant to Federal Rule Civil Procedure 56(c), a
district court may grant a motion for summary judgment if all of the information before
the court demonstrates that “there is no genuine issue as to material fact and the moving
party is entitled to judgment as a matter of law.” Poller v. Columbia Broadcasting
System, Inc., 368 U.S. 464, 467 (1962). The burden is on the moving party. City of Mt.
Pleasant, Iowa v. Assoc. Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). After the
moving party discharges this burden, the nonmoving party must do more than show that
there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party bears the burden of
setting forth specific facts showing that there is sufficient evidence in its favor to allow a
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jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
In ruling on a motion for summary judgment, the court must review the facts in a
light most favorable to the party opposing the motion and give that party the benefit of
any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d
844, 846 (8th Cir. 1983). The court is required to resolve all conflicts of evidence in
favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541
F.2d 207, 210 (8th Cir.1976).
III.

Discussion
Plaintiff claims that his First and Fourteenth Amendment rights were violated as a

result of the defendants’ actions and policies.
A. First Amendment Claims
“Prison walls do not form a barrier separating prison inmates from the protections
of the Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987). However, “limitations
may be placed on the exercise of those rights in light of the needs of the penal system.
Constitutional claims that would otherwise receive strict scrutiny analysis if raised by a
member of the general population are evaluated under a lesser standard of scrutiny in the
context of a prison setting.” Murphy v. Missouri Dept. of Corrections, 372 F.3d 979,
982 (8th Cir. 2004) (citing Turner, 482 U.S. at 81). When a prisoner’s rights are
implicated, the question becomes whether the actions of prison officials were “reasonably
related to legitimate penological interests.” Thornburgh v. Abbott, 490 U.S. 401, 409
(1989) (citing Turner, 48 U.S. at 89).
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The Supreme Court in Turner articulated a four-factor test to consider when
considering the reasonableness of the prison regulation: (1) a “valid, rational connection”
must exist between the regulation and a legitimate, neutral governmental interest; (2) the
existence of other means of exercising the asserted constitutional right; (3) the impact
that asserting the right will have on prison personnel, other inmates, and the allocation of
prison resources; (4) whether the regulation represents an “exaggerated response” to
prison concerns. 482 U.S. at 89-91. The existence of an “alternative that fully
accommodates the prisoner’s rights at de minimis costs to valid penological interests” is
evidence of unreasonableness on the part of the state. Id. at 91. In balancing the rights of
prisoners and institutional security, prison officials are afforded great deference. Timm v.
Gunter, 917 F.2d 1093, 1098 (8th Cir. 1990) (citing Turner, 482 U.S. at 85).
1. Plaintiff’s Chinese language mail
The Court first addresses the regulation prohibiting plaintiff’s Chinese language
mail. It is undisputed that MDOC will censor incoming and outgoing written materials
that are written in a language that staff is unable to interpret with currently available
resources. Plaintiff contends that such censorship infringes on his rights because he
cannot communicate in the language of his choice.
In applying the Turner test, it must first be determined whether the censoring of
the defendant’s Chinese language mail is rationally related to a legitimate and neutral
objective. Turner, 48 U.S. at 89. The connection between the regulation and the goal
cannot “be so remote to render the policy arbitrary or irrational.” Id. The policy must be

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neutrally applied in restricting inmates’ constitutional rights; that is, it must operate
“without regard to the content of the expression.” Id. at 90.
The purpose of the censorship policies for non-English mail is to “[maintain] the
safety and security of correctional facilities and the public.” MDOC Institutional
Services Policy IS 13-1.2 (I). Censoring correspondence that is in another language
achieves that mean by allowing prison officials to monitor the activities of inmates. It is
conceivable that an inmate would use the mail for illegal purposes affecting safety and
security. The regulation is more than remotely connected to the goal. The regulation
passes the first prong of the Turner test.
The second prong of the Turner test explores other means for the prisoner’s
exercise of the right. When there are other avenues for exercising that right, the court
should defer to the decision of prison officials. See Turner, 482 U.S. at 90. The right
must be viewed “sensibly and expansively.” Thornburgh, 490 U.S. at 418. Having
another form of expression is sufficient to satisfy this prong of the test. Id. Plaintiff is,
for example, able to communicate with his family through means other than written
correspondence --- he can now place calls to his family in China.1 Additionally, plaintiff
testified in his deposition that there is a translator in the city where his family lives in
China that may be able to translate his mail written in English.2 (#56-5at 120-22.)

1

In his deposition, plaintiff testified that although SECC did not have the capability to make international
phone calls to China at the time this action was instituted, plaintiff is now able to place calls to his family
in China. (#62-4, pg. 24.)
2

Plaintiff states in his opposition briefing that the defendants fabricated their suggestion that plaintiff had
written to his family in English and that he could write to his family in English and have a translator in
their town translate to Chinese from English. However, plaintiff stated in his deposition that he has

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Plaintiff could communicate with his family by writing in English in compliance with the
policy, placing the burden on his family to translate into Chinese.3 Therefore, the
regulation satisfies the second prong.
Thirdly, the court must consider the impact that striking down the regulation will
have on prison officials and other inmates. When overruling the validity of the regulation
will have a “ripple effect” on the rights of other inmates and prison personal, the court
should defer to the regulation. See Turner, 482 U.S. at 90 (deferring to the prison
officials’ finding that allowing inmates to correspond with inmates in other institutions
allows prisoners to create informal organizations that may threaten the safety and security
of prison personnel and prisoners alike, and the court upheld the prohibition on such
correspondence). When exercising the right results in “significantly less liberty and
safety for everyone else,” the court should defer to the regulation. Thornburgh, 490 U.S.
at 418 (quoting Turner, 482 U.S. at 90).
The MDOC policy states that a “reasonable effort will be made to translate
incoming and outgoing mail not in English.” Interpreters must be approved by the
warden, and when an interpreter is not available, the mail will be forwarded to the
censorship committee. MDOC, Institutional Services Policy IS 13-1.2 (III.E). It is
undisputed that no MDOC employee is able to translate Chinese. Plaintiff’s request not to
follow this policy would have several possible ripple effects. First, locating and

written short notes to family in China. Plaintiff also stated in his deposition that a translator is present in
his town who provides translation services to foreigners.
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Plaintiff argues that his family should not be burdened with locating a translator. However, that
argument does not go to whether plaintiff’s First Amendment rights have been violated.

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qualifying someone to translate plaintiff’s mail takes prison resources away from
institutional programs for other inmates. Secondly, ignoring the policy altogether and
allowing plaintiff to correspond in Chinese without censorship could be a “potential spur
to criminal activity.” Turner, 482 U.S. at 92. The ripple effect would cause a potential
threat to security and safety of the general public, so the third prong of Turner test is
satisfied.
The final prong of the Turner test is whether there is a reasonable alternative
available to the prison. When an inmate can point to an “obvious, easy alternative,” it is
evidence that the regulation is unreasonable. Id. at 90. The burden is on the inmate to
“point to an alternative that fully accommodates the prisoner’s rights at de minimis cost
to valid penological interests.” Id. at 91.
Although the plaintiff has pointed to two alternatives to the rejection of his mail,
neither is an easy alternative that is of “de minimis cost to a valid penological interest.”
Id. at 91. Plaintiff’s first suggestion is that the MDOC office in Jefferson City should
provide him with a translator because they are able to translate Spanish language mail in
house. The cost of hiring an interpreter for plaintiff’s Chinese language mail is greater
than a de minimis cost. In his deposition, plaintiff points out that a translator was
provided for his criminal proceedings, but plaintiff’s criminal due process rights are not
implicated here. Hiring a translator to facilitate plaintiff’s personal mail appropriates
MDOC resources in a way that takes away from all other prisoners, so it is not a viable
alternative to the MDOC policy. Second, plaintiff suggests that his mail should be sent to
the Iowa Refugee Services Bureau (the “Bureau”) for translation. In Thongvahn v.
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Thalacker, 17 F.3d 256 (8th Cir. 1994), upon which the plaintiff relies heavily, the
Bureau translated a Laotian inmate’s mail free of charge for the Iowa Department of
Corrections. However, plaintiff has not shown that the Bureau even has a Chinese
translator or that, if it did, its services would be available to him. Use of the translation
services from another state also does not constitute an “obvious, easy alternative” for
MDOC. Turner, 498 U.S. at 90. Therefore, plaintiff’s challenge fails the fourth prong of
the Turner test.
The undisputed facts show that plaintiff’s claim that censorship of his Chinese
language mail violates his First Amendment rights fails, and summary judgment is
appropriate.
2. Plaintiff’s International Phone Calls
Next, plaintiff’s complaint alleges that he is unable to make international phone
calls to family members. Prior to February 1, 2012, no one at the prison could make
international phone calls. After that date, prisoners could make international phone calls,
but plaintiff was unable to make phone calls to China. The defendants submit (by way of
an affidavit from defendant Clark) that now plaintiff is able to make phone calls to China.
Plaintiff appears to dispute that fact.
Regardless, even assuming that the international calling issue has been resolved,4
defendants’ motion for summary judgment fails to address whether plaintiff’s earlier
inability to make international phone calls violated his constitutional rights. Plaintiff
4

Defendants maintain that because plaintiff did not respond to their statement of facts, the statements are
all admitted. However, although plaintiff did not respond to the statement of facts in a standard form, he
did cite to and respond to many of their facts. (See #62 at p.18-19.)

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seeks not only injunctive relief but also damages. Therefore, summary judgment cannot
be granted to defendants regarding plaintiff’s inability to make international phone calls.
B. Fourteenth Amendment Claim
Plaintiff also claims that his Fourteenth Amendment right to due process and equal
protection was violated by defendants’ policies related to Chinese language mail and
international phone calls to China. Defendants’ motion does not address the Fourteenth
Amendment claim, which is based primarily on plaintiff’s assertion that he was treated
differently than Spanish-speaking prisoners. Therefore, the Court does not address
whether defendants are entitled to summary judgment on that claim.
IV.

Conclusion
Summary judgment will be granted to defendants on the plaintiff’s First

Amendment claim concerning his Chinese language mail. Claims remaining in this case
are plaintiff’s First Amendment claim regarding his international phone calls and his
Fourteenth Amendment claims. Should defendants wish to move for summary judgment
on those remaining issues, they may move to do so.
Accordingly,
IT IS HEREBY ORDERED that defendants’ Motion for Summary Judgment
(#54) GRANTED IN PART and DENIED IN PART.
IT IS HEREBY ORDERED that defendants are granted Summary Judgment on
plaintiff’s First Amendment claim regarding his Chinese language mail.

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Dated this 23rd day of July, 2014.

_____________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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