Lagar, Humberto v. Tegels, Lizzie et al

Filing 40

ORDER denying plaintiff's 11 Motion for Preliminary Injunction; granting defendants' 19 Motion for Summary Judgment. The clerk of court is directed to enter judgment and close this case. Signed by District Judge William M. Conley on 11/29/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
HUMBERTO LAGAR,
Plaintiff,

OPINION & ORDER

v.
14-cv-036-wmc
LIZZIE A. TEGELS, S. BARTON
and EILENE MILLER,
Defendants.

Pro se plaintiff Humberto Lagar was granted leave to proceed under 42 U.S.C. § 1983
on claims that officials at Jackson Correctional Institution (“JCI”) violated his First and
Fourteenth Amendment rights when they refused to let him record a “talking letter” to his
mother in Spanish. After plaintiff moved for a preliminary injunction (dkt. #11), asking
that the court enter an order allowing all Spanish-speaking inmates to record Spanish
talking letters immediately, defendants combined their opposition with a motion for
summary judgment (dkt. #19), which has now been fully briefed. For the reasons discussed
below, the court will deny the motion for preliminary injunction and grant defendants’
motion for summary judgment.
UNDISPUTED FACTS1
I. The Parties
At all times relevant to this complaint, plaintiff Humberto Lagar was an inmate at
JCI in the custody of the Wisconsin Department of Corrections (“DOC”). Lagar is a native
1

The following facts are drawn from the parties’ proposed findings and responses on summary judgment.
Since briefing was completed in May of 2015, some of the following facts are no longer be current. In
particular, plaintiff Lagar is no longer incarcerated by the Wisconsin Department of Corrections. He is
instead currently residing in Milwaukee, Wisconsin. Given that the outcome here depends on a
discontinued program and past actions, the court deems it unnecessary to request a factual update from
the parties.

of Cuba who left that country in 1980. He reads, writes and speaks English fluently, but
communicates with his mother and father exclusively in Spanish. Lagar’s parents are only
able to communicate effectively in Spanish, in part because certain terms, phrases or axioms
cannot be translated exactly between different languages and in part because their English is
generally limited.
JCI is a medium-security institution located in Black River Falls, Wisconsin. During
the relevant period, defendant Scott Barton was employed by the DOC as a Corrections
Program Supervisor at JCI; defendant Lizzie Tegels was employed as its Warden; and
defendant Eilene Miller was employed by the DOC as recreation leader at JCI.

Miller

stepped down as recreation leader in September of 2014.
II. Outside Communication By Inmates At JCI
A. DOC Mail and Telephone Policies
The DOC allows inmates to communicate with their families, friends and others to
the extent it is consistent with the need to protect the public.

Communication fosters

reintegration into the community and helps inmates maintain family ties. Communication
also helps motivate inmates, thus contributing to morale and security.
With limited exceptions for legal correspondence specified in Wis. Admin. Code
§ DOC 309.04(3),2 correctional staff may open, inspect and read all incoming and outgoing
mail in order to ensure the safety of the institution, staff and the general public. Inmates
may write letters in Spanish or other languages.

Those letters are subject to the same

monitoring as other outgoing mail.
Subject to some exceptions, Wis. Admin. Code § DOC 309.04(3) generally prohibits institution
staff from opening or reading mail sent to an inmate from a specific list of correspondents, including
attorneys, judges, clerks and various governmental officials.
2

2

Prison officials will not deliver mail if it: (1) threatens criminal activity or harm to
any person; (2) threatens blackmail or extortion; (3) concerns the transport of contraband
into or out of an institution; (4) concerns plans to escape; (5) concerns activity that, if
completed, would violate state or federal law or administrative rules of the DOC; (6) is in
code; (7) solicits gifts from someone other than a family member or a person on the
inmate’s visiting list; (8) is considered “injurious,” meaning it is pornographic, facilitates
criminal activity or poses a threat to security, orderly facility operation, discipline, safety or
inmates’ treatment and rehabilitative goals; (9) contains information that would create a
clear danger of physical or mental harm to any person if communicated; (10) teaches or
advocates illegal activity, disruption or behavior consistent with a gang or ritualistic group;
(11) is determined by the warden, on a case-by-case basis, to interfere with an inmate’s
penological interests; or (12) is determined by the warden for other reasons to be
inappropriate for distribution throughout the institution.

See Wis. Adm. Code § DOC

309.04(4)(c). In addition, mail will not be delivered if it contains contraband.
One of the chief reasons that the institution monitors outgoing mail is for the
protection of the public. Some inmates confined in correctional institutions continue to
manipulate, defraud or victimize others. Monitoring outgoing mail also prevents inmates
from coordinating assaults, escapes, attacks, riots, hostage-taking and other activities that
jeopardize safety, and it helps make staff aware of communications between DOC Security
Threat Groups, or gangs, which have historically used the mail to coordinate and

3

communicate.

Finally, staff members monitor outgoing mail to watch for inmates

corresponding on behalf of other inmates or soliciting information for other inmates.3
Like mail, telephone calls may be monitored, unless they are approved and
authorized calls with an attorney. Like mail, nothing prevents inmates from utilizing the
phones in various languages. JCI has a system that records and stores all an inmate’s phone
calls so that they are available if needed.

If it were necessary to listen to a call not

conducted in English, security would either involve a bilingual staff member or send the
recording out to be transcribed by a company providing that service.
Consistent with the above, Lagar has never been denied the right to speak or write to
his father or mother in Spanish at JCI or at any of the other Wisconsin correctional
institutions in which he has been incarcerated.
B. JCI’s Talking Letter Program
i.

General policies

Generally speaking, JCI inmates have a variety of recreational opportunities and can
participate in JCI’s music program, sports activities, and a variety of hobbies. Inmates can
also receive approved items into the institution for use in a hobby. More than 600 of JCI’s
980 inmates have signed up for a hobby.
JCI’s recreation leader administers all of these opportunities, including ordering
supplies and materials, maintaining records and reports, performing inventory of equipment

This latter behavior is prohibited for a number of reasons. First, the acting inmate may expect
something in return for using his postage and envelope, creating a barter system, which gives inmates
power and can lead to strong-arming, violence and disruptive conduct. Second, security is unable to
monitor what an inmate is writing if he is doing so through another inmate. In particular, those with
a history of solicitation or gang involvement could circumvent mail monitoring if they are able to
persuade another inmate to write on their behalf.
3

4

and supplies, and doing general upkeep of equipment areas. The recreation leader also
maintains paperwork for property approvals. Finally, the recreation leader supervises up to
fifty-seven inmates in the cleaning and upkeep of certain hobby and recreation equipment.
In the past, the recreation director also administered a “talking letter program,”
which is considered a leisure activity and falls within the purview of the recreation
department. The talking letter program first began on August 28, 2007. Inmates learned
about it via a Daily Bulletin, which read in part:
A new program is starting at Jackson Correctional Institution
The Talking Letter
Inmates are invited to use this program to talk on video tape to
their family and friends. The cost of the tape is $3.50. A
recreation Leader will be present to record the letter and must
understand the contents of the letter. The video tape must be
sent out immediately after it is made to someone on your
visiting list.
The talking letter program was created to be financially self-sufficient. There has
never been money in JCI’s budget allocated to it, other than money to purchase the video
camera when the program first began. Inmates paid the remaining costs, including the cost
of the DVD and the costs of mailing.
If

an

inmate

wanted

to

make

a

talking

letter,

he

Interview/Information request form to the Recreation Department.

would

submit

an

A recreation leader

would contact the inmate to go over the rules and to set up a time for the inmate to tape
the letter. Among other things, the rules:


Required that the inmate fill out an information sheet and sign a copy of the rules.



Provided that all recipients would be screened for appropriateness.



Prohibited gang symbols, gang names and foul, abusive or sexual language.
5



Mandated that inmates use first names only.



Prohibited inmates from giving out addresses or telephone numbers.



Provided that all DVDs may be subject to staff review.4

The rules do not explicitly prohibit the use of languages other than English. (See Mot.
Prelim. Inj. Ex. K (dkt. #11-6).)
Inmates were told that if they violated these rules, they would receive a conduct
report and their tape would be destroyed without a refund. On the other hand, an inmate’s
request to make a talking letter would be honored so long as he followed all required
policies, and a recreation leader was available to manage the associated paperwork and
monitor the making of the video.

Once an inmate completed his talking letter, the

recreation leader would immediately mail it out without retaining a copy.
As a corrections supervisor, defendant Barton has denied talking letter requests in the
past when the letter violated JCI or DOC policies. For instance, Barton denied a prisoner’s
request to make a talking letter for a person not on his visiting list, and another prisoner’s
request to make a talking letter for a person with whom he had a no-contact order. Barton
has also denied requests to make talking letters in Spanish.
As noted above, with the exception of the initial video camera purchase, there has
never been money in JCI’s budget for the talking letter program, including for translation or
interpretation services. JCI also did not have a system in place to retain copies of talking

As for this last bullet point, Lagar places great emphasis on defendants’ apparently erroneous
substitution of the word “are” for the words “may be” with respect to talking letter being subject to
staff review, contending that it evinces a strategic intent on defendants’ part to deceive the court and
bolster their security justifications. The court does not believe the error reasonably suggests a
calculated attempt at deceit, particularly given that defendants themselves proposed the correctlyworded rules as a finding of fact. (DPFOF (dkt. #21) ¶ 29.) In any event, the court is aware of the
correct wording, as reflected above.
4

6

letters, as it did with phone calls.

Rather, talking letters were monitored during the

recording itself and then immediately mailed, which enabled JCI to run the program with no
additional costs. According to JCI’s Corrections Security Director, Kevin R. Garceau, the
lack of funds and consequent lack of infrastructure meant the only practical way to monitor
talking letters effectively was to have a recreation leader present during recording who could
understand the content in real time. (Decl. of Kevin R. Garceau (dkt. #23) ¶ 25.)
The recreation leader position does not require Spanish fluency, nor do any of the
named defendants have the authority to change the position’s description to require
bilingualism. As a consequence, JCI has not had a Spanish-speaking recreation leader since
the beginning of the talking letter program.

Based on his experience as JCI’s Security

Director, Garceau believes that allowing inmates to create talking letters in languages other
than English would create an “intolerable” risk to the safety of JCI, its staff, its inmates and
the public. (Defs.’ Reply DPFOF (dkt. #36) ¶ 42.) Inmates are, therefore, prohibited from
making talking letters in Spanish, although Lagar points out that bilingual staff members are
available to listen to telephone calls, if necessary, and could serve that same function with
respect to talking letters.
JCI officials were particularly concerned with ensuring that inmates not use talking
letters to re-victimize previous victims. If an inmate managed to send an abusive video to a
previous victim, that could prove even more traumatic than a comparable letter, although
Lagar contends that the Talking Letter Information Sheet (dkt. #22-1, at 3), which requires
the inmate to identify the recipient, would mitigate those concerns by allowing JCI staff to
determine beforehand whether the intended recipient was a victim. (Pl.’s PFOF (dkt. #30)
¶ 29.) A video could also prove more damaging than a letter if an inmate attempted to
7

solicit money or assistance, as many inmates are skilled at manipulation and could use the
video component to further their illicit goals substantially.
ii.

Administration and Suspension of Program

When Barton arrived in 2011, JCI had one recreation leader, Eilene Miller. In 2012,
Barton added a second recreation leader, who left the position in September of 2013. In
September of 2014, Miller likewise left her position as recreation leader. After Miller’s
departure, Barton relied on interim recreation leaders and, for a four-month period, JCI had
no recreation leader at all. Barton eventually hired a new recreation leader, Kathy Zipfel, on
February 8, 2015, who in addition to being new to the DOC, was extremely busy learning
to manage the various programs for which she is responsible.
In January of 2015, before Zipfel began work at JCI, Barton administered the talking
letter program himself, helping three inmates create and mail talking letters. Barton found
that the process took about two to three hours per talking letter, requiring him to notify the
inmate, move him to the recreation building, record and review the letter, and then
complete the disbursement process. After this hands-on experience, Barton spoke to the
Warden, explaining his belief that the recreation leader had no time to facilitate the
program, which had proven to be time-consuming. Accordingly, in mid-January of 2015,
JCI indefinitely suspended the talking letter program.
The parties dispute the reason for the suspension of the program.

Defendants

represent it was simply due to the lack of staff time described above, while Lagar contends
the program was suspended in retaliation for his complaints.5

Since the program’s

Proof of this motive would be by inference alone, since Lagar has no admissible evidence to support
his contention. For example, Lagar’s letter to defendant Tegels, on which he relies (dkt. #10),
5

8

suspension, Barton has received three talking letter requests, all of which he returned with
an explanation that the program is on hold until further notice.
There are no plans to restart the program, but inmates remain free to communicate
with friends and family in all the traditional ways (that is, through written letters, telephone
calls and in-person visits). JCI also continues to offer a program called “Father’s Video
Book,” which allows an inmate to read a children’s book from the institutional library on
DVD and send the recording to his child. (See Aff. of Humberto Lagar Ex. 7 (dkt. #31-7) 13.) Apparently, Redgranite Correctional Institution continues to offer its own version of a
talking letter program to inmates as well. (Defs.’ Resp. PPFOF (dkt. #35) ¶ 37.)
Lagar proposes alternative means of administering the talking letter program that
would accommodate the wishes of Spanish-speaking inmates to record Spanish talking
letters. Specifically, he proposes:


mailing out the DVD to be translated by a Spanish-speaking DOC employee;



sending an audio recording of the DVD via e-mail to a Spanish-speaking employee to
be screened; or



requiring a Spanish-speaking DOC employee to listen to the DVD for screening
purposes.
Obviously, Lagar’s proposals only address the Spanish speaking issues, not JCI’s more

broadly articulated reason for suspending the talking letter program altogether. Moreover,
reports that Lagar was told by an officer, who was in turn told by Barton, that JCI was going to
terminate the talking letter program because of his lawsuit. This double hearsay is inadmissible, and
cannot serve as proof that the program was actually terminated because of Lagar’s lawsuit. His
complaint, which he also cites in support, quotes another letter he wrote to a non-defendant, Dr.
Baskin, contending that Institution Complaint Examiner, Jodi Dougherty, told Lagar that if he
pursued his complaint, JCI would terminate the talking letter program. (Compl. (dkt. #1) ¶ 410.)
Again, these out-of-court statements cannot serve as evidence of the truth of those statements
against the named defendants here.

9

even if the program were still active, defendants maintain that Lagar’s proposals would not
be acceptable. This is because JCI has never had an in-house interpreter. When it has
translation needs, it typically relies on Spanish-speaking staff members to assist voluntarily
and only as available. JCI is also rurally located, so it has little opportunity to hire Spanish
speakers from the surrounding community. As of 2012, when Lagar made his request to
record a Spanish talking letter, current JCI staff members were neither willing to provide
bilingual services, nor did they believe themselves competent to do so.
As of early 2015, JCI had just one staff member fluent in Spanish. He works third
shift as a corrections officer and started at JCI on October 6, 2013. As his availability
permits, he voluntarily reviews inmate-to-inmate mail written in Spanish, and he also
reviews Spanish-language mail directed to non-inmates if there is reason to believe there is
an issue. Reading and translating mail is not part of his position description, however, even
though he has been voluntarily assisting in that manner since he started work. Defendants
contend that he cannot be required to take on this task. Moreover, third shift is already
minimally staffed, and to ask this lone staff member to review talking letters would leave
him without time to monitor mail and phone calls in Spanish, much less attend to his
regular duties. (Defs.’ Reply DPFOF (dkt. #36) ¶ 65.) This staff member would only have
time to take on this additional responsibility if he were called in and paid overtime, as well
as free to refuse this additional work. Furthermore, as previously stated, JCI has no funds to
pay him for administering the talking letter program, and none of the defendants has the
authority to reallocate JCI’s resources.
Lagar also suggested sending the DVDs to other institutions, although none of the
defendants would have the authority to require DOC employees to review JCI talking
10

letters. There is also no additional staff time available for this undertaking: JCI and several
other DOC institutions are generally understaffed, with JCI short by two sergeants, seven
corrections officers and nine, non-uniformed staff members. Defendants maintain that it
would be reckless to pull staff away from their posts to assist in the talking letter program,
as that would cause their performance of their expected duties to suffer. Instituting an
interpretation service for talking letters would also present several, additional logistical
difficulties. For example, JCI would have to offer similar services for other languages, and
the program would become unmanageable if a significant number of inmates began asking
to make talking letters languages other than English.
C. DOC Directive For Limited English Proficiency Offenders
On a related note, the DOC enacted Executive Directive #71, which provides in part
that:
DOC shall within available resource constraints take steps to continue
providing [Limited English Proficiency (“LEP”)] offenders in its custody, or
under its supervision, meaningful access to vital documents, important
information and health services and to ensure they are not precluded from
accessing or participating in important programs or proceedings, including
those which may affect the duration and condition of their confinement or
favorable classification.

Consistent with this directive, JCI can request an interpreter from DOC central when an
inmate requires interpretation for important services or programs. However, DOC central
only provides interpretation services required to provide meaningful access to important
programs identified in Executive Directive #71, including:

11

physical and mental health

services; revocation and disciplinary proceedings; and parole and program review
classification hearings and reports.6
Because the talking letter program is considered a leisure activity, it does not fall
within Executive Directive #71’s purview. Thus, the DOC would not provide an interpreter
to administer it, nor does it fit the parameters necessary to pay for a telephone interpreter
vendor service under Executive Directive #71. Regardless, the DOC would not provide an
interpreter for Lagar, specifically, because he understands and speaks, reads and writes
English fluently.

LEP offenders are those who do not speak English as their primary

language, and have only a limited English facility. Thus, Lagar’s language abilities did not
prevent him from using the talking letter program, just his doing so in Spanish.
III. Lagar’s Attempts To Send A Talking Letter
In May of 2012, Lagar spoke to another inmate about sending a Mother’s Day Card.
The inmate suggested that Lagar send her a talking letter instead. According to Lagar, he
then sought additional information about the program from other inmates, who told him
that he could send a talking letter to anyone on his visiting list.7 Because his mother had
not seen him since 2005, he decided to send her a talking letter.
On June 19, 2012, Lagar submitted an Interview/Information Request to defendant
Miller, stating: “I need to schedule a time with you so that I can have made a talking letter
to my mother.

It’ll be in Spanish.

She doesn’t know to[o] much [E]nglish.”

Miller

JCI can also use a telephone vendor, but there is a cost per minute for the use of such services, and
so it would generally use them only for the types of programs identified by Executive Directive #71.
6

Defendants object to these proposed findings of fact as inadmissible hearsay. (See Defs.’ Resp.
PPFOF (dkt. #35) ¶¶ 11-12.) They are, of course, inadmissible for the truth of the matter asserted,
but admissible for purposes of showing what Lagar believed and intended.
7

12

responded, “All talking letters must be in English format.” (Decl. of Scott Barton Ex. 1006
(dkt. #22-7).)
On July 9, Lagar submitted a follow-up Interview/Information Request form to
Miller, stating:
Ms. Miller, I have spoken to several institution officials
regarding not being able to speak in Spanish while making the
talking letter and they have all said that I should be allowed to
do this in Spanish.
It does seem to me like this is an unfair type of rule that you’re
enforcing here. Spanish is my first language. I need to be
allowed to make this talking letter in Spanish.
Please reply. Thank you.
(Id. at Ex. 1007 (dkt. #22-8).) Miller responded:
Did you contact Mr. Barton? He is my supervisor, and I did
state that an interpreter would be needed in order for it to be
done in Spanish -- so you need to contact him to get that
approved.
(Id.)
On July 18, Lagar submitted an Interview/Information Request to Barton, inquiring
why he and other Latino inmates were not able to send out a talking letter in Spanish, as
well as expressing his need to send such a letter to his mother. Barton responded that
Spanish talking letters were not allowed at that time.
On July 23, Lagar submitted a letter to Barton that read:
I have been informed that you’re looking into my request
regarding being able to send my mother a Talking Letter in
Spanish. Look, I had sent you a request July 10 and 18, 2012
however you had never replied. It seems to me like you have a
habit of doing, or shall I say refusing to reply to my legit
requests. That’s not a good thing to do in public office.

13

Look, there are other [S]panish speaking inmates in this
institution who would like to send their love[d] ones a Talking
Letter as well. Can you please respond with the latest status
pertaining to this presented situation? Thank you for your time
and cooperation in this important matter.
(Id. at Ex. 1002 (dkt. #22-3) 2.)
Apparently after receiving no reply, Lagar again wrote to Barton on July 25 via an
Interview/Information Request. Lagar stated that since he had been at JCI, he had never
seen a recreation leader that could speak Spanish, and that as a result, neither he nor any
other Latino inmates at JCI had ever been able to participate in the talking letter program.
Lagar also asked how many more years it would be before they could.

Finally, Lagar

acknowledged that he knew English, but indicated that his parents did not know it “like I
can speak it.” (Id. at Ex. 1003 (dkt. #22-4) 2.)
That same day, Barton responded to Lagar’s letter denying his request to send a
Spanish talking letter. In relevant part, his response read as follows:
1. The request for a talking letter is approved or denied by the
Program Director. According to the rules for a talking letter,
the Recreation leader must be present to understand the
contexts of the materials being communicated; at this time I
do not have a Recreation Leader that can interpret Spanish.
...
5. If there are other requests for Spanish speaking inmates, they
too can follow the procedure and send in the request to Mrs.
Miller.
Furthermore, Mr. Lagar, you appear to communicate clearly
through written, verbal, and phone conversations in English.
Also on July 25, Lagar submitted an Interview/Information Request to then Warden
Hepp, stating that he and other Latino inmates could not participate in the talking letter
program because of the lack of an interpreter; and they were “being discriminated against”
14

because they could not record talking letters in Spanish.

Barton claims that he wrote

another letter to Lagar on July 31, as follows:
In order to understand the context of the message being shared,
the recreation leader must be able to understand and interpret
the language.
Rule 6-7 on the back of the talking letter form are important for
the protection of family and/or victims in which the letter maybe
(sic) intended.


#6 No Gang symbols, gang names, foul language, abusive
language or language sexual in nature will be tolerated.



#7 First names only when recording the talking letter.



#8 No addresses or telephone numbers may be give[n]
out.

It would be extremely difficult for our staff to enforce the above
rules and protect victims if they were not able to interpret the
language being used. Furthermore, Central Office has conceded
by stating, “Since this is an optional program that has no impact
on the inmate’s welfare, conditions of confinement/supervision,
duration of incarceration, etc., I would assume this doesn’t fit
the definition of a “vital document” and therefore DOC would
not be required to cover the cost of interpretation.” The
individual is able to send the letter home and request that a
family member interpret the letter from English to Spanish.
(Decl. of Scott Barton Ex. 1003 (dkt. #22-4) 6.)8
On October 1, Lagar submitted an Interview/Information Request to Barton asking
again if he could send a talking letter to his mother in Spanish. He stated, “Please, no more
discrimination.

She has not seen me since 2005.”

To this request, Barton responded

tersely, “No.” (Id. at Ex. 1004 (dkt. #22-5) 1.) On October 7, Lagar followed up with
Miller, requesting again that she allow him to participate in the talking letter program. He
Lagar contends that he never received this letter, suggests that it has been fabricated, and notes
that it is signed by Barton, but refers to Barton in the third person throughout. (See id. (“I am
supporting Mr. Barton’s decision to deny allowing the talking letter to be done in Spanish. . . .
Sincerely, Scott Barton”).)
8

15

specifically asked that she “view the October 1, 2012 Addendum to the JCI Handbook (Pg.
#6),” which provides the following notice:
The Wisconsin Department of Corrections (DOC) shall within
available resource constraints take reasonable steps to continue
providing Limited English Proficiency (LEP) offenders in its
custody, or under its supervision, meaningful access to vital
documents, important information and health services and to
ensure they are not precluded from accessing or participating in
important programs or proceedings, including those which may
affect the duration and condition of their confinement or
favorable classification. This shall be done at no cost to the
inmate. The DOC shall not retaliate against any LEP offender
for requesting such access.
The DOC does not prohibit
communication in languages other than English, either by policy
or practice, except where security practices require.
(Id. at Ex. 1008 (dkt. #22-9) 6.)

As previously noted, however, Lagar is not an LEP

offender.
Finally, on October 10, Lagar again submitted an Interview/Information Request to
Barton, which states, “This is my third request that I have sent you regarding wanting to be
able to make a Talking Letter to my mother who I haven’t seen in 7 years. I need to make
this T.L. in Spanish. See new rule that allows this to be.” (Id. at Ex. 1004 (dkt. #22-5) 2.)
Barton responded, once again denying the request:
I have addressed this issue. You may communicate in English
and have a family member translate. Not allowed to do T.L. in
Spanish.
(Id.) After filing an administrative complaint (see Defs.’ Reply DPFOF (dkt. #36) ¶¶ 99102), Lagar filed the present lawsuit.

16

OPINION
Summary judgment is appropriate if the moving party “shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial
burden of showing that there is no genuine issue of material fact and that it is entitled to
relief. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the initial burden is met, for
an issue on which the nonmoving party will bear the burden of proof at trial, the
nonmoving party must “go beyond the pleadings” and “designate specific facts showing that
there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The
nonmoving party may not “simply show some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Nor may the
nonmoving party “merely rely on conclusory pleadings” to withstand the motion. Colan v.
Cutler-Hammer, Inc., 812 F.2d 357, 361 (7th Cir. 1987). Rather, the nonmoving party must
produce “evidence . . . such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If he fails to do so, “[t]he
moving party is ‘entitled to a judgment as a matter of law.’”

Celotex, 477 U.S. at 323

(quoting Fed. R. Civ. P. 56(c)).
The standard for obtaining a preliminary injunction is not dissimilar, except the
burden begins and ends with the moving party, who “must show that its case has ‘some
likelihood of success on the merits’ and that it has ‘no adequate remedy at law and will
suffer irreparable harm if a preliminary injunction is denied.’” Stuller, Inc. v. Steak N Shake
Enters., Inc., 695 F.3d 676, 678 (7th Cir. 2012) (quoting Ezell v. City of Chi., 651 F.3d 684,
694 (7th Cir. 2011)). As discussed below, the court finds that plaintiff has no possibility of
17

succeeding on the merits -- indeed, that defendants are entitled to summary judgment.
Thus, plaintiff cannot satisfy this threshold requirement for obtaining a preliminary
injunction. Regardless, plaintiff’s request is rendered moot both because Lagar is no longer
incarcerated and because defendant has discontinued the talking letter program entirely.

9

See, e.g., Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011) (claims for injunctive relief
mooted when inmate transferred to a different institution, such that any relief granted
“would be purely speculative in nature” (quoting Ortiz v. Downey, 561 F.3d 664, 668 (7th
Cir. 2009)). Accordingly, his request for a preliminary injunction will be denied.
I. First Amendment Claim
In its screening order, the court addressed plaintiff’s First Amendment claim under
the rubric of Procunier v. Martinez, 416 U.S. 396 (1974), abrogated in part on other grounds by
Thornburgh v. Abbott, 490 U.S. 401 (1989), which governs non-legal outgoing mail, noting
that the talking letter is a “somewhat unusual form of correspondence,” but that it saw no
reason Martinez would not apply. (Jan. 22, 2015 Opinion & Order (dkt. #8) 5.) Neither
party challenges the court’s application of this standard, and so the court employs it in
resolving defendants’ motion for summary judgment.10

As noted above, plaintiff contends that prison officials actually suspended the program in
retaliation for the present lawsuit, but he has not pled a retaliation claim in this lawsuit, nor has he
sought leave to amend to add such a claim. Furthermore, this court’s general policy is to require
plaintiffs to raise new claims of retaliation in a lawsuit separate from that alleged to have provoked
the retaliation. See, e.g., Awe v. Endicott, No. 07-C-309-C, 2007 WL 5514745, at *1 (W.D. Wis. Oct.
10, 2007); Godwin v. Sutton, No. 05-C-493-C, 2005 WL 6169238, at *1 (W.D. Wis. Oct. 19, 2005).
Thus, the court takes no position on the possible merit of such a claim.
9

Although defendants do not argue for it (understandably, given the court’s screening order), the
other possibility would be to proceed under the standard of Turner v. Safley, 482 U.S. 78 (1987),
which this court has applied at least once before to an inmate’s claims that requiring him to
communicate in English over the telephone violated his First Amendment rights. See Boriboune v.
Litscher, No. 03-C-50-C, 2003 WL 23208940 (W.D. Wis. Feb. 24, 2003), aff’d, 91 F. App’x 498 (7th
10

18

The Martinez framework asks first whether the challenged practice furthers an
important or substantial government interest unrelated to suppression of expression, and
second whether the challenged action is no greater than necessary or essential to the
protection of that interest. Martinez, 416 U.S. at 413; Koutnik v. Brown, 456 F.3d 777, 784
(7th Cir. 2006). As for the first, plaintiff recognizes in his brief that the general practice of
regulating talking letters serves an “important and substantial governmental interest” -specifically, the security of the correctional institution. See Koutnik v. Brown, 456 F.3d 777,
784 (7th Cir. 2006) (citing Martinez, 416 U.S. at 413) (interests under Martinez include
“security, order, and rehabilitation”). The state also has a substantial interest in protecting
the public, including an inmate’s family and friends, from manipulation and other
“antisocial acts.” See Woods v. Comm’r of Ind. Dep’t of Corr., 652 F.3d 745, 748 (7th Cir.
2011) (analyzing whether regulation preventing advertising for pen pals “was reasonably
related to the legitimate objective of curtailing inmate fraud”); cf. Felce v. Fiedler, 97 F.2d
1484, 1500 (7th Cir. 1992) (state has substantial interest in protecting public from
antisocial acts of a parolee). In fact, plaintiff concedes in his brief that the rules of the
talking letter program “perfectly coincide with the established standard in Martinez,” at least
as written. (Pl.’s Br. Opp’n Mot. Summ. J. (dkt. #28) 5.)
This brings us to the second prong of Martinez. Specifically, plaintiff contends that
defendants went beyond those regulations by reading in an unnecessary English-language
requirement that does not exist in the rules themselves.

Plaintiff is at least technically

Cir. 2003). Indeed, it is possible Turner would be a better fit in the context of this particular case as
it now appears. The Turner standard is more deferential to prison officials than the Martinez
standard, asking only if the challenged regulation is “reasonably related to legitimate penological
interests.” Turner, 482 U.S. at 89. The point is a moot one here, since the court concludes that
defendants are entitled to summary judgment under the more demanding Martinez standard as well.

19

correct -- the talking letter rules do not specifically mandate that talking letters be sent in
English -- but this argument elevates form over substance.

The rules do prohibit gang

names, foul language, abusive language and sexual language. (See Mot. Prelim. Inj. Ex. K
(dkt. #11-6) 2.) From this it necessarily follows that the monitoring staff member must be
able to understand the inmate’s message; otherwise, it would not be possible for him or her
to enforce the rules as written. And it is undisputed that, during the time period relevant to
the complaint, JCI did not have any staff members willing and able to provide Spanish
interpretation services, let alone any bilingual recreation leaders. Thus, the court concludes
that the de facto English-language requirement, like the talking letter program rules
themselves, served an “important and substantial governmental interest” in institutional
security and protecting the public.
“The more difficult task . . . is not in identifying an important governmental interest
at stake, rather it is in determining whether the enforcement of [the English-language
requirement] was no greater an infringement upon [Lagar’s rights] than necessary to protect
the state’s interest.” Rios v. Lane, 812 F.2d 1032, 1037 (7th Cir. 1987); see also Koutnik, 456
F.3d at 784-85. Plaintiff argues that the infringement upon his First Amendment rights was
far greater than it needed to be, proposing a number of alternatives that, in his estimation,
JCI could have employed to allow him to send a Spanish talking letter without implicating
security concerns. In particular, plaintiff suggests that JCI could have (1) mailed the DVD
to a Spanish-speaking DOC employee, (2) sent an audio file via e-mail to a Spanishspeaking DOC employee, or (3) called a Spanish-speaking DOC employee to have them
screen the DVD.

20

All of plaintiff’s alternative proposals have one thing in common: they assume the
ready availability of a Spanish-speaking DOC employee to serve as interpreter.

Even

assuming that the defendants should have recruited non-recreation employees to administer
a recreation program (and the court is not prepared to say so, given the deference due to
prison officials in running prisons), from 2007 until October of 2013, JCI had no bilingual
employees competent to provide interpretation services.

There are also no resources

available to pay staff overtime to take on additional duties outside regular hours, and the
named defendants lack authority to reallocate resources toward the talking letter program to
cover any such costs. Indeed, the court takes judicial notice that however laudable may be
this additional service, DOC had been operating understaffed throughout this period due to
a combination of factors, including budget cuts, retirements and other departures, and an
inability to recruit and hire qualified replacements.
The same problems arise with respect to the possibility of reaching out to other DOC
institutions for assistance with interpretation of talking letters. Not only do the named
defendants lack the authority to require other DOC employees to shoulder this additional
duty, there are no funds allocated to cover any related expenses, since the talking letter
program was meant to be financially self-sufficient.

Moreover, the defendants lack the

authority to reallocate resources to pay non-JCI employees to administer a JCI program.
Indeed, the JCI Security Director, Kevin Garceau, testified without contradiction that it
would be reckless to pull other DOC staff from their expected duties to participate in an
optional recreation program.

(Decl. of Kevin R. Garceau (dkt. #23) ¶ 35; Pl.’s Resp.

DPFOF (dkt. #29) ¶ 73.)

21

DOC employees, such as the defendants and Garceau, are in a better position to
make judgments related to prison administration, including matters of staffing, than this
court, see Overton v. Bazzetta, 539 U.S. 126, 132 (2003), and the court agrees that it would
drain the DOC’s limited resources to mandate that it seek out interpreters for any and all
inmates who wish to record talking letters in languages other than English. Cf. DeSimone v.
Bartow, No. 08-C-638, 2009 WL 1648914, at *5 (E.D. Wis. June 10, 2009) (prison could
prevent inmate from writing in “Atlantean” under RLUIPA, notwithstanding his willingness
to provide a translation key; “case-by-case review of everything DeSimone elects to write in
the Atlantean language would be a significant drain on the human resources of the WRC”),
aff’d, 355 F. App’x 44 (7th Cir. 2009)
Plaintiff attempts to minimize defendants’ recitation of the obstacles associated with
permitting Spanish talking letters by pointing out that Redgranite apparently maintains its
own talking letter program without issue.

Unfortunately, the record contains no

information about that program or Redgranite’s capabilities to administer it. For example,
Redgranite may, like JCI, actually prohibit talking letters in languages other than English. If
it does allow Spanish talking letters, it may be because Redgranite has available resources
that JCI lacks. In any event, without evidence in the record relating to Redgranite or its
talking letter program, the court cannot infer from Redgranite’s apparent ability to offer a
program has any bearing on whether JCI can feasibly offer its own version of that program.
Plaintiff relies primarily on Kikumura v. Turner, 28 F.3d 592 (7th Cir. 1994), for the
proposition that “the summary exclusion of foreign language materials is unconstitutional.”
Id. at 598. In Kikumura, a Japanese inmate challenged a prison’s “alleged de facto policy of
summarily rejecting foreign language publications without making any effort to translate or
22

screen such material.” Id. at 597 (footnote omitted). The Seventh Circuit analyzed that
policy under the Turner standard addressed previously in footnote 10 above, concluding that
the district court had erred in granting summary judgment to the prison warden. First, the
Seventh Circuit noted that the warden made no determination as to whether the materials
presented a security risk, but instead “rejected them precisely because he was unable to do
so.”

Id. at 598.

Second, it found a factual dispute as to whether Kikumura’s English

abilities allowed him to receive English publications as an alternative means to exercise his
right to receive information. Id. at 598-99. Third, the court pointed out that the prison
had made no effort to screen the publications before rejecting them, despite the “obvious
implication” in Turner that “a prison may not restrict a prisoner’s rights without even
looking to see how the rights might be accommodated and estimating the expense entailed
by doing so.” Id. at 599. Accordingly, the court vacated the grant of summary judgment
with respect to Kikumura’s claim for injunctive and declaratory relief, although it affirmed
the grant of qualified immunity on his claim for damages.
There is at least one material difference between Kikumura and this case.

The

Seventh Circuit in Kikumura explicitly stated that its discussion was “narrowly limited to the
regime we are reviewing: where a prison makes no effort at all to accommodate the
constitutional rights of prisoners native in languages other than English.”

Id. at 598

(emphasis added). The right involved in this case -- the right protected by Martinez -- is the
right to correspond with people outside of the prison, including family members.

See

Martinez, 416 U.S. at 412-13 & n.13; Boriboune, 2003 WL 23208940, at *3 (“It is wellestablished that prisoners have a First Amendment right to communicate with those outside
the prison.”).
23

If, as in Kikumura, JCI had made “no effort at all” to accommodate that right, this
would be a different case, but Lagar retained the right to write letters, make phone calls and
conduct visits with his mother in Spanish, or to send English-language talking letters that
others could interpret on her behalf. Thus, unlike the prison in Kikumura, JCI “[did] not
flatly prohibit all non-English communication.”

Boriboune, 2003 WL 23208940, at *3.

Instead, JCI prohibited a certain form of communication after reasonably concluding it was
impractical given the institution’s limited resources. Said another way, Lagar certainly had
a constitutional right to communicate with his family, but the court cannot conclude he had
a constitutional right to do so in whatever form he pleased. See Pell v. Procunier, 417 U.S.
817, 827-28 (1974) (“Accordingly, in light of the alternative channels of communication
that are open to prison inmates, we cannot say on the record in this case that this restriction
on one manner in which prisoners can communicate with persons outside of prison is
unconstitutional.”).
The court sympathizes with Lagar’s desire to communicate with his mother in the
manner he believes best, and likely the most meaningful, but the rule prohibiting talking
letters in languages other than English served important and substantial government
interests. On this record, the de facto English-language requirement was no greater than
necessary to protect those interests.
Even if this were not so, as the above discussion also demonstrates, defendants are
certainly entitled to summary judgment on Lagar’s First Amendment claim for damages on
grounds of qualified immunity. “Government officials who are performing discretionary
functions are immune from liability for civil damages unless they violate clearly established
constitutional rights of which a reasonable person would have known.” Id. at 596 (quoting
24

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

In evaluating qualified immunity at

summary judgment, courts engage in a two-pronged analysis. Tolan v. Cotton, 134 S. Ct.
1861, 1865 (2014). The first asks whether the facts, taken in the light most favorable to
the non-moving party, demonstrate a violation of a federal right. Id. The court has already
answered that question in the negative, at least on the record before it.11
The second asks whether the right in question was “clearly established” at the time of
the violation. Id. at 1866 (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). Courts
should evaluate this question based on the state of the law at the time of an incident and in
light of the “specific context” of the case. Id. (quoting Saucier v. Katz, 533 U.S. 194, 201
(2001)).

In the context of this case, Lagar has pointed to nothing suggesting that a

reasonable person would have known he was violating Lagar’s First Amendment rights by
enforcing policies that prohibited Lagar from recording a talking letter in Spanish. The
policies in question served penological interests in security and protecting the public, both
of which have been repeatedly recognized as substantial government interests in the context
of prison administration. And the defendants here have come forward with undisputed
evidence that retaining the services of an interpreter was not a viable option in light of the
limited resources available to the program. Furthermore, Lagar in particular had access to
multiple means of communicating with his family, including by talking letter in English,
even though this was less desirable. Finally, because Lagar was, in fact, fluent in English, he
was not “denied” access to the program.

As the price of real time translation technology declines, or the institution’s future budget allows
for greater language resources, the balance here may change. Until then, however, JCI’s lack of a bilingual recreation leader (or a qualified interpreter able to devote a minimum of two to three hours)
for the real time editing process contemplated for the making of a single video was sufficiently
prohibitive to justify JCI’s ban on Spanish talking letters.
11

25

Given this context, the court cannot say Lagar has shown that the unlawfulness of
defendants’ actions’ was “‘apparent’ from pre-existing law.” Kiddy-Brown v. Blagojevich, 408
F.3d 346, 359 (7th Cir. 2005) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Accordingly, even if there was a violation of Lagar’s First Amendment rights, defendants are
immune from liability for damages.
II. Equal Protection
As the court noted at screening, inmates retain the right to equal protection in the
prison context, but generally speaking unequal treatment among inmates “is justified if it
bears a rational relation to legitimate penal interest[s].” Williams v. Lane, 851 F.2d 867,
881 (7th Cir. 1988) (citing Hudson v. Palmer, 468 U.S. 517, 522-23 (1984)).12 The above
First Amendment discussion compels the conclusion that the de facto English-language
requirement for the talking letter program served legitimate penological interests, both in
security and in protecting the public from antisocial or manipulative behaviors, at least
where JCI has come forward with evidence that expanding the program to other languages
was impractical. Under the particular circumstances of this case, the rule ensured that the
In some circumstances, it may be possible for language to serve as a proxy for race or national
origin, which would require the application of a higher level of scrutiny. See Kikumura, 28 F.3d at
599-600 (leaving open question of when it might be appropriate for classifications on the basis of
language to be treated as classifications on the basis of national origin). However, the court is not
persuaded that this is the appropriate case for such treatment. As already discussed, the only
plaintiff before the court, Lagar, is fluent in English and could record a talking letter in compliance
with the rules. The theory that the English-language requirement is nevertheless a proxy to
discriminate against him on the basis of his Cuban national origin, or because he is Latino, is,
therefore, simply not true, at least in his case. Nor is there any evidence before the court regarding
the makeup of the JCI inmate population, or the languages those inmates’ families generally speak,
to make Lagar’s theory viable. See id. at 600 (“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.”) (quoting Hernandez v. New York, 500 U.S.
352, 367-70 (1991)). Accordingly, the court analyzes Lagar’s equal protection claim only to
determine whether any difference in treatment he endured bore a rational relation to legitimate
penal interests.
12

26

recreation leaders, who were realistically the only staff available to monitor the making of
those letters, could effectively enforce the rules against abusive, sexual or gang-related
contents -- rules that even Lagar concedes meet the stricter standards of Martinez. Thus,
even viewing the record in the light most favorable to Lagar, the court cannot say that the
difference in treatment here was arbitrary, and so defendants are entitled to summary
judgment on this claim as well.

ORDER
IT IS ORDERED that:
1) Plaintiff Humberto Lagar’s motion for preliminary injunction (dkt. #11) is
DENIED.
2) Defendants S. Barton, Eilene Miller and Lizzie Tegels’s motion for summary
judgment (dkt. #19) is GRANTED.
3) The clerk of court is directed to enter judgment and close this case.
Entered this 29th day of November, 2016.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

27