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Yang v. Lombardi

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

April 24, 2015

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


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. 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 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 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.

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 ...

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