Yang v. Missouri Department of Corrections et al

Filing 93

MEMORANDUM AND ORDER..granting 87 MOTION to Strike 85 Memorandum in Opposition to Motion Exhibit D (Document Number 85-4) filed by Defendants...granting 80 Second MOTION for Summary Judgment filed by Defendants. Signed by District Judge Stephen N. Limbaugh, Jr on 4/24/15. (MRS)

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. This Court has already granted defendants summary judgment on
plaintiff’s claim regarding censorship of his Chinese-language mail. Presently before the
Court is defendants’ Motion for Summary Judgment (#80) and defendants’ Motion to
Strike (#87). 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

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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
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, has family and friends
in China with whom he wishes to communicate. As discussed in the Court’s
memorandum regarding plaintiff’s Chinese language mail, plaintiff is able to write in
English and mail letters in English to his family.
MDOC has enacted Institutional Services (“IS”) Policy 13-2.1 – Offender Access
to Telephones. Pursuant to that policy, use of the telephone is a privilege and not a right.
Each offender has a PIN that allows him to make long-distance, collect calls. If an
offender has a problem with his PIN, he is required to complete a PIN trouble reporting
form. At some point in 2011, plaintiff was unable to make international phone calls to
China. 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.
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
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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
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
Defendants contend they are entitled to summary judgment in this case on both

remaining claims.
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A.

Plaintiff’s International Phone Calls

The parties agree that plaintiff is now able to make phone calls from prison to
China. With respect to the time during which plaintiff could not make phone calls to
China, a “prisoner has no right to unlimited telephone use.” Benzel v. Grammer, 869
F.2d 1105, 1108 (8th Cir. 1989). Prisoners do have a right to communicate generally, but
“the extent of inmates’ First Amendment right to communicate with the outside world is
a fact-intensive universe.” Holloway v. Magness, 666 F.3d 1076, 1079 (8th Cir. 2012).
Here, it appears that plaintiff was unable to make international phone calls to China for a
time period, but, not long after plaintiff complained, the ability to make such phone calls
was reinstated. Plaintiff insists that his constitutional rights were infringed upon when he
was unable to make phone calls to China and could not communicate with his relatives in
Chinese-language mail. As this Court has already determined, plaintiff was not
prohibited from communicating with friends and family generally, as he was permitted to
communicate in (English) writing, and requiring that he communicate using English
writing did not infringe upon his rights. “The exact nature of telephone service to be
provided to inmates is generally to be determined by prison administrators, subject to
court scrutiny for unreasonable restrictions.” Washington v. Reno, 35 F.3d 1093, 1100
(6th Cir. 1994) (quoting Fillmore v. Ordonez, 829 F.Supp. 1544, 1563–64 (D.Kan.1993),
aff'd, 17 F.3d 1436 (10th Cir.1994)). There is nothing unreasonable regarding the
MDOC policy or the interrupted access to international phone calls.1
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The record is unclear regarding the length of time plaintiff was unable to make international phone calls. It
appears undisputed that he was able to call internationally sometime before November 2013, but the individuals
plaintiff was calling may have refused to accept his phone calls. (See Doc. #56-1, Affidavit of Omer Clark.)

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B.

Equal Protection

Plaintiff’s equal protection claim rests on the purportedly disparate treatment by
the prison with respect to himself (a Chinese-speaking prisoner) and Spanish-speaking
prisoners. The Equal Protection Clause protects against arbitrary classifications by state
actors. See U.S. Const. amend. XIV § 1. However, “unless a classification trammels
fundamental personal rights or is drawn upon inherently suspect distinctions such as race,
religion or alienage ....,” classification need only be rationally related to a legitimate state
interest. City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d
511 (1976). Defendants, relying on Harrison v. Fed. Bureau of Prisons, 464 F. Supp. 2d
552, 557 (E.D. Va. 2006), suggests that prisoners are not considered a suspect class. The
Court construes plaintiff’s complaint, however, to be related to his class as a Chinesespeaking prisoner --- not merely a prisoner.
It is not clear whether the speaking of a language other than English as a
primary language, by itself, serves as an indicator of race or national origin
for purpose of the Equal Protection Clause. See e.g., Hernandez v. New
York, 500 U.S. 352, 371 (1991)(“It may well be, for certain ethnic groups
and in some communities, that proficiency in a particular language, like
skin color, should be treated as a surrogate for race under an equal
protection analysis.”); Soberal-Perez v. Heckler, 717 F.2d 36 (2d Cir.1983)
(“language, by itself, does not identify members of a suspect class”).
Rodriguez-Ramirez v. Helder, No. CIV. 06-5062, 2007 WL 2752362, at *9 (W.D. Ark.
Sept. 20, 2007). “Prisoners are protected under the Equal Protection Clause of the
Fourteenth Amendment from invidious discrimination based on race .” Wolff v.

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McDonnell, 418 U.S. 539, 556 (1974) (internal citation omitted). However, it appears
that the Eighth Circuit has applied the Turner test --- and not a more-stringent strict
scrutiny test --- to the matter of equal protection claims and non-English-language mail.
See Thongvahn v. Thalacker, 17 F.3d 256 (8th Cir. 1994).
The Turner test, which refers to Turner v. Safley, 482 U.S. 78, 84 (1987),
recognizes that “limitations may be placed on the exercise of [prisoners’ Constitutional
rights] 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). The Eighth Circuit discussed the test as applied to a disparate language requirement
policy in Thongvanh, 17 F.3d at 259. In Thongvanh, a Laotian prisoner was permitted to
write to his parents and grandparents in Laotian, but he was required to write to everyone
else in English. Spanish and German, inmates, however, were not subjected to the
English-only policy. The Court upheld a jury verdict for plaintiff where there existed a
readily-available alternative at de minimis cost to the institution (i.e., sending
correspondence to Iowa’s Refugee Service Center, a free translating service in the state
that was capable of translating Laotian writing). Id.

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This Court has already determined that the English-only prison policy passes the
Turner test. In addition, the “United States Supreme Court has held that in order to
prevail on an equal protection claim, a plaintiff must show that a particular defendant
acted with discriminatory purpose.” Giles v. Henry, 841 F. Supp. 270, 274 (S.D. Iowa
1993) (citing McCleskey v. Kemp, 481 U.S. 279, 292 (1987).) Plaintiff has offered no
evidence that any defendant acted with a discriminatory purpose. And, unlike in the
Thongvanh case, in which a readily-available alternative to the English-only policy
existed, see 17 F.3d at 259, the plaintiff had made no offer of any alternative that would
impose only de minimis cost on the prison. Notably, although the MDOC policy states
that reasonable effort will be made to provide translation services (see Doc. #72 at 3-4), it
is not surprising (nor indicative of discriminatory intent) that such services would be
available for Spanish-speaking prisoners but not Chinese-speaking prisoners. As a result,
plaintiff’s equal protection claim fails, and summary judgment will be granted to
defendants.
C.

Due Process

As defendants point out, plaintiff’s due process claim is unclear. It appears that
plaintiff conflates his equal protection and First Amendment claims with due process. As
this Court has already addressed the First Amendment and equal protection claims and
determined that defendants are entitled to summary judgment, plaintiff’s purported due
process claim also fails.

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IV.

Motion to Strike
Defendants moved to strike Exhibit D attached to plaintiff’s memorandum in

opposition to defendants’ motion for summary judgment. 2 The exhibit is a letter from
former Assistant Attorney General Thomas D. Smith to plaintiff offering to compromise
to settle the lawsuit. Federal Rule of Evidence 408 prohibits the use of compromise and
settlement offers. The Court agrees that the exhibit should be excluded from evidence,
and this Court has disregarded it.

Accordingly,
IT IS HEREBY ORDERED that defendants’ Motion for Summary Judgment
(#80) and Motion to Strike (#87) are GRANTED.
Dated this 24th

day of April, 2015.

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

“A ‘court may strike from a pleading an insufficient defense or any redundant, immaterial,
impertinent or scandalous matter.’” Anzaldua v. Northeast Ambulance and Fire Protection Dist.,
4:13CV1257 ERW, 2014 WL 466228, at *3 (E.D. Mo. Feb. 5, 2014) (quoting Fed.R.Civ.P.
12(f)). “As is apparent from the language of Rule 12(f), a motion to strike may only be directed t
o material contained in a ‘pleading.’” Id. (citing Rule 12(f)); see also Coleman v. City of
Pagedale, 2008 WL 161897 at *4 (E.D.Mo. Jan. 15, 2008). “Pleadings are defined as: 1) a
complaint; 2) an answer to a complaint; 3) an answer to a counterclaim designated as a
counterclaim; 4) an answer to a cross claim; 5) a third-party complaint; 6) an answer to a thirdparty complaint; and 7) if the court orders one, a reply to an answer.” Id. (citing Fed.R.Civ.P.
7(a)). Although the “Motion to Strike” is therefore procedurally incorrect under these
circumstances, the Court addresses the substance of the motion.
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