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Yang v. Lombardi

United States District Court, E.D. Missouri, Southeastern Division

July 23, 2014

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

MEMORANDUM AND ORDER

STEPHEN N. LIMBAUGH, Jr., District Judge.

This is a 42 U.S.C. ยง 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 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 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 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 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 ...


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