Richard YANG, Plaintiff-Appellant, v. MISSOURI DEPARTMENT OF CORRECTIONS; George Lombardi, Director, MDOC; John Doe; Tom Clements, Director of Division of Adult Institutions; Mariann Atwell, Director, Division of Offender Rehabilitative Services; Patricia Cornell, Deputy Division Director; Fred Johnson, Deputy Warden, Potosi Correсtional Center; Don Roper, Warden, Potosi Correctional Center; Omer L. Clark, Deputy Warden, Southeast Correctional Center; William (Bill) Stange, Deputy Warden, Southeast Correctional Center; Allan Hughes, Committee Member, Southeast Correctionаl Center; Angela Riddell, CCA, Southeast Correctional Center; Dwayne Kempker, Deputy Director, Division of Adult Institutions; K. Malloy, Functional Unit Manager, Potosi Correctional Center; G. Phagley, Committee Member, Potosi Correctional Center; Cindy Griffin, Functional Unit Managеr, Potosi Correctional Center, Defendants-Appellees.
No. 15-2231
United States Court of Appeals, Eighth Circuit.
Submitted: April 14, 2016. Filed: August 15, 2016.
Rehearing and Rehearing En Banc Denied September 23, 2016.
829 F.3d 890
Counsel who presentеd argument on behalf of the appellee was Katherine S. Walsh, AAG, of Saint Louis, MO. The following attorney(s) appeared on the appellee brief; Katherine S. Walsh, AAG, of Saint Louis, MO.
Before COLLOTON and SHEPHERD, Circuit Judges, and MOODY,1 District Judge.
Richard Yang, an inmate in Missouri, appeals the dismissal of his lawsuit agаinst several officials of the Missouri Department of Corrections under
I.
Yang was born in China in 1940. He moved to the United States in 1984 and is now a citizen. Yang has been incarcerated in the Missouri Department of Corrections since 2005, when he was sentenced to twenty years in prison for second-degree murder.
Yang‘s first language is Mandarin Chinese. He can speak, read, and write English, although he claims he cannot fully express himself in English. Yang‘s relatives remain in China, and none of them understands English.
When he was first imprisoned, the Department allowed Yang to correspond in Chinese. But from late 2007 to some point in 2008, and again after January 2011, Department officials refused for security reasons to deliver Yang‘s incoming and outgoing mail written in Chinese.
The officials restricted Yang‘s Chinese-language mail pursuant to the Department‘s censorship and mail policies. Those policies provide for censoring of mail that poses a threat to the security of the penal institution. Items written in a “language that staff are unable to interpret with current available resources” are said to present such a threat. Thus, all mail in a foreign language is sent to a committee that determines whether an employee-interpreter is available by reviewing the Department‘s “institutional translator list.” If an employee can interpret the mail, it is sent to that employee for review and screening before delivery to its intended destination. But if no employee on the list can interpret the mail, the committee censors the mail and informs the inmate of the basis for its decision.
At all times relevant to this litigation, no Department employees could read or translate Mandarin Chinese. Because several employees knew Spanish, however, the Department screened other inmates’ Spanish-language mail during the pеriods when Yang‘s Chinese-language mail was rejected.
Yang twice complained about the treatment of his mail through the Department‘s grievance process. He explained that his family was unable to understand English, requested permission to send and rеceive Chinese-language mail, and demanded that the Department provide an interpreter who could review the mail and clear it for delivery. Department officials denied Yang‘s grievances.
Yang also sought to place teleрhone calls to his family and friends in China. Before February 2012, the Department prohibited all international calls. After that date, international calling was permitted, but Yang temporarily remained unable to call people in China due to technical difficulties. The Department‘s international-calling provider resolved those issues, and Yang may now call his family in China.
Throughout his time in prison, Yang has been able to place domestic telephone calls and to send and receive English-languаge
In May 2012, Yang, proceeding pro se, brought a
The district court dismissed Yang‘s complaint against the Department for failure to state a claim and granted summary judgment for the officials. Yang appealed the summary-judgment orders pro se, and the court appointed counsel to represent Yang at oral argument. The court expresses its appreciation to appointed counsel for his zealous efforts on Yang‘s behalf.
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter оf law.
II.
Yang first asserts that the officials violated his First Amendment rights. A prison inmate retains those First Amendment rights that are not “inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). These include the right to communicate with persons outside the prison walls, subject to regulation that protects legitimate governmental interests. Procunier v. Martinez, 416 U.S. 396, 412-13, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Thongvanh v. Thalacker, 17 F.3d 256, 258 (8th Cir. 1994); Benzel v. Grammer, 869 F.2d 1105, 1108 (8th Cir. 1989).
When a prison regulation impinges оn an inmate‘s ability to communicate with others, it is valid if it is “reasonably related to legitimate penological objectives.” Turner v. Safley, 482 U.S. 78, 89, 99, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); Ortiz v. Fort Dodge Corr. Facility, 368 F.3d 1024, 1026 & n.2 (8th Cir. 2004). In making that determination, we consider (1) whether the regulation is rationally connected to a legitimate and neutral gоvernmental interest; (2) whether the inmate has an alternative means of exercising the constitutional right; (3) the impact accommodating the inmate‘s asserted right would have on prison staff, prisoners, and resources; and (4) whether ready alternatives to the regulation exist. Turner, 482 U.S. at 89-91; see also Thornburgh v. Abbott, 490 U.S. 401, 414-19, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). Yang bears the burden of proving that the Department‘s regulations are unreasonable. See Overton v. Bazzetta, 539 U.S. 126, 132, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003).
Yang‘s lawsuit spans many years of his incarceration, and the precise nature of his claims varies based on the correctional policies in effect at a given time. The broadest complaint is that the Department officials unreasonably restricted his First Amendment rights when they censored his Chinese-language mail and prohibited international calling at the same time.
Yang objects that his family in China cannot understand English, and that he cannot fully express himself by writing in a second language. But an alternative “need not be ideal,” Overton, 539 U.S. at 135, and Yang‘s pro se pleadings in this litigation demonstrate that he can communicate adequately in English. Yang testified that he believed that there was a translation service in the city where his family resides, and the Constitution does not require the State to bear the burdеn of paying for translation in any event. Ortiz, 368 F.3d at 1027.
Yang has not demonstrated that there is a readily available alternative that would have eased the restriction on his ability to communicate without imposing financial burdens on the State. He suggests that the Department could arrange a translator for his mail. This court required that step in Thongvanh, where a refugee service center offered a cost-free translation service, and officials gave no explanation why foreign-language correspondence could not be routed through the center. 17 F.3d at 258-59. But Yang has not identified a cost-free way for the Department to monitor his non-English correspondence, and prison officials are not required to absorb more than a de minimis cost to facilitate foreign-language communications. Ortiz, 368 F.3d at 1027. The district court, therefore, correctly rejected Yang‘s First Amendment claim based on the periods when Yang could neither correspond in Chinese nor place international telephоne calls.
The officials, a fortiori, did not violate Yang‘s rights during periods when he could correspond in Chinese, but was prohibited from placing international telephone calls. The current policies likewise pass muster. Under those rules, Yang may сommunicate via international or domestic telephone calls in Chinese or English, by mail in English, or through in-person visits. One might see tension between a regulation that forbids correspondence written in Chinese but allows telephone calls in foreign tongues, but a prison rule that addresses a legitimate security concern is not unreasonable merely because it is underinclusive. See Ortiz, 368 F.3d at 1026-27; see also Murchison, 779 F.3d at 890.
Yang next contends that the Department officials violated his equal protection rights when they treated him less favоrably than Spanish-speaking inmates. Yang argues that the officials translated and screened Spanish-language mail but rejected his Chinese-language mail. Yang also asserts that after the Department allowed international telephone сalling in February 2012, Spanish-speaking inmates were able to place calls to Mexico immediately, while he remained unable to call his family and friends in China.
There is no evidence that differential treatment of foreign-language mail was
Yang raises a procedural due process claim, arguing that the officials did not give him notice of appeal rights and an opportunity to appeal the Department‘s denials of his grievances. This claim is belied by evidence that Yang twice exhausted the Department‘s grievance procedures, including his right to appeal. Yang was able tо exhaust his claims administratively and to litigate them in federal court, so there is no showing of an injury from any alleged procedural irregularities. See Knight v. Lombardi, 952 F.2d 177, 179 (8th Cir. 1991).
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For the foregoing reasons, the judgment of the district court is affirmed.