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Lagar v. Tegels

United States District Court, W.D. Wisconsin

November 29, 2016


          OPINION & ORDER

          WILLIAM M. CONLEY District Judge

         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.


         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 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.

         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 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 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 would submit an Interview/Information request form to the Recreation Department. 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.
• 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 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 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, ...

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