United States District Court, N.D. Indiana, South Bend Division
JAMES HINES, individually and on behalf of all others similarly situated, et al., Plaintiffs,
ROBERT CARTER, JR. in his official capacity and individual capacity, Defendant.
OPINION AND ORDER
Michael G. Gotsch, Sr. United States Magistrate Judge
claims in this case arise as the result of the Telephone
Privileges Policy (“the Telephone Policy”) of the
Indiana Department of Correction (“IDOC”)
enforced at the Westville Correctional Facility
(“WCF” or “Westville”) where
Plaintiffs were incarcerated. In applying the Policy, WCF
effectively bars offenders from receiving non-fee telephone
calls from privately retained counsel even though offenders
with appointed or pro bono counsel may receive such
non-fee attorney-client phone calls. Both
Plaintiffs, James Hines and Anthony Gant, claim that
the Telephone Policy, as implemented at WCF violated their
constitutional rights by discriminating on the basis of
disability or economic status in violation of the Equal
Protection Clause of the Fourteenth Amendment to the United
States Constitution and by denying access to the courts in
violation of the Due Process Clause of the Fourteenth
Amendment. Plaintiffs also allege that the Telephone Policy
discriminates based upon disability in violation of Title II
of the American with Disabilities Act (“ADA”), 42
U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C.
completing discovery, Defendant and IDOC Commissioner, Robert
Carter, Jr., filed his motion for summary judgment on April
6, 2018. Defendant's motion became ripe on May 14, 2018,
after Plaintiffs filed their response and Defendant filed his
reply. The undersigned now issues the following opinion and
order with jurisdiction conferred by the consent of the
parties and 28 U.S.C. § 636(c).
following facts are primarily not in dispute. Where the facts
are in dispute, this Court has determined that the disputes
are either not material or has chosen to address such
disputes in the Court's substantive analysis of the
July 2016 until July 2017, both Hines and Gant were
incarcerated at the Westville Correctional Facility. During
that time, both Plaintiffs were represented by private
counsel who assisted them in litigating separate civil rights
lawsuits resulting from their experiences in prison. In his
underlying lawsuit, Hines claims that he was discriminatorily
“denied placement in IDOC's work release program
because he has learning disabilities and is not able to read
and write at the sixth-grade level” in violation of
Title II of the ADA and Section 504 of the Rehabilitation
Act. [DE 42 at 6]. Through his underlying
lawsuit, Gant claims that “while unarmed and
not resisting[, he] was shot by a police officer in violation
of the Fourth Amendment to the U.S. Constitution.”
[DE 42 at 6].
assert that while they were litigating their underlying
cases, the IDOC Telephone Policy, including WCF's bar on
receipt of telephone calls from private counsel, interfered
with and burdened their ability to consult with their
retained counsel. To address this concern, Hines filed a
grievance with the prison asking to receive calls from his
private attorney at no cost because of his indigence and
learning disabilities, which allegedly affected his ability
to write. [DE 4 at 14-17]. The prison responded to
Hines's grievance-and related appeals-by explaining and
affirming the Telephone Policy. [DE 4 at 17].
Specifically, the prison explained that the Policy (1)
prohibits offenders from receiving phone calls except those
from public defenders; (2) allows offenders to pay for calls
to private counsel or to call them collect; (3) allows
offenders to avoid having calls with their private counsel
monitored by informing prison staff when making calls to
counsel; (4) allows offenders to communicate with counsel via
mail and attorney visits; and (5) facilitates notice to the
offender if private counsel informs the facility that a call
from the offender client is needed. [DE 4 at 17].
The prison explicitly denied Hines's request to allow
phone calls to his private counsel without charge.
IDOC Telephone Policy requires correctional facilities,
including WCF, to operate an “offender calling
system” that offenders can use to make outgoing
telephone calls. [DE 36-2 at 1-2]. While offenders
at WCF are generally permitted to access the offender calling
system freely during the day, offenders' access to the
system may be restricted by Westville's operational and
security needs, such as during a lockdown, or as a result of
a disciplinary action against an individual offender. [DE
36-1 at 2, ¶ 6; see also DE 36-2 at 3-4].
However, offenders are only permitted to use the offender
calling system to place calls to people listed on their
Offender Telephone List [DE 36-3]. [DE 36-2 at
2]. All calls, except those to a “legal
representative” or an “emergency telephone
call” as defined in the Policy, “may also be
monitored to ensure the safety and security of individuals or
the facility.” [DE 36-2 at 5]. Yet, offenders
are “provided the opportunity to make calls to legal
representatives without offender calling system
monitoring.” [DE 36-2 at 6]. To call his
private counsel, therefore, an offender must include the
counsel's name on his Telephone List following the
procedures set up by the facility and must then inform the
staff that the listed person is his attorney to deactivate
any monitoring. [DE 36-1 at 2-3, ¶ 11].
through the offender calling system, however, are not free of
charge. As allowed under the Policy, WCF operates its
offender calling system under contract with a telephone
company, Global Tel Link (“GTL”). [DE 36-1 at
2, ¶ 9; see also DE 36-2 at 3]. Offenders
pay for calls by using a calling card, which draws funds from
trust accounts used by offenders for incidental expenses
while in prison, or by making a collect call. [DE 36-1 at
2, ¶ 9]. Either way, the calls are charged at a
standard rate of $0.248/minute, plus applicable taxes.
[DE 36-1 at 2, ¶ 9]. In certain circumstances,
WCF can approve direct dial calls made by designated WCF
staff for offenders, not the offenders themselves, without
the charges associated with the offender calling system.
[DE 36-1 at 3, ¶ 12; DE 36-2 at 7]. As
an example of such circumstances, the Policy references a
situation where a “legal representatives [sic]
telephone system cuts-off the offender's call when it is
transferred.” [DE 36-2 at 7].
applying the Telephone Policy, WCF does not permit offenders
to receive telephone calls with one sole exception. [DE
36-1 at 3, ¶ 14]. Offenders may only receive
telephone calls, as facilitated by the facility staff, from
court-appointed counsel. [DE 36-1 at 4, ¶ 17].
Neither the offender nor his court-appointed counsel are
subject to the charges associated with the offender calling
system for these calls. [DE 36-1 at 4, ¶ 18].
WCF does not facilitate such non-fee calls from any private
counsel retained by an offender. [DE 36-1 at 4,
application of the Telephone Policy also reflects IDOC's
Offender Access to the Courts policy (“the OAC
policy”), which sets forth guidelines for offender
access to legal representation and the courts. [DE 36-4
at 1]. The OAC policy expressly directs facilities to
make provisions “for [offenders'] access to phone
calls to legal representatives.” [DE 36-4 at
2]. The OAC policy also requires facilities to allow
offenders to receive visits, unrestricted in length and
number, from their legal representatives during regular
business hours and to afford offenders unrestricted access to
legal representatives and the courts through the mail.
[DE 36-4 at 2]. All offenders also have access to
free stationery and envelopes for legal correspondence while
facilities must mail legal correspondence without charge for
indigent offenders. [DE 36-4 at 2]. In sum,
IDOC's OAC policy prohibits facilities from
“impos[ing] restrictions on visitation, correspondence,
or telephone communications with legal representatives that
would obstruct the availability of adequate legal
representation, except as necessary due to security and
manageability of the facility.” [DE 36-4 at
Gant was also concerned about the effect of his inability to
receive calls at no cost from his retained counsel during the
litigation of his Fourth Amendment claim, Gant filed no
grievance because of the results of Hines's grievance
efforts. Gant assumed that his experience with the grievance
process would conclude as it did for Hines, without his
having gained access to incoming or non-fee attorney calls.
Rather than pursue the grievance process, Gant joined Hines
in initiating this lawsuit on April 5, 2017, seeking
compensatory and injunctive relief for violations of the ADA,
Rehabilitation Act, and the Fourteenth Amendment. Hines was
subsequently released from IDOC's custody on June 13,
2017. Gant remains incarcerated.
now seeks summary judgment on all of Plaintiff's claims
arguing that (1) the policies governing offender telephone
usage at WCF do not violate the Fourteenth Amendment's
guarantees of Equal Protection and Due Process; (2)
Plaintiffs are not entitled to special telephone privileges
under the ADA or Rehabilitation Act; (3) Defendant is
entitled to qualified immunity on Plaintiffs' claims
because there is no clearly established right to receive
telephone calls in prison; (4) Defendant is entitled to
summary judgment on all of Gant's claims because he
failed to exhaust all his administrative remedies before
initiating this lawsuit; and (5) Hines's claims for
injunctive relief are moot as the result of his release from
preliminary matter, the Court notes that through their
response brief, Plaintiffs voluntarily dismissed “all
individual capacity claims [against Defendant] and proceed on
official capacity claims only.” [DE 42 at 8].
Qualified immunity does not apply to claims against
individuals in their official capacities. Rivas v.
Martin, 781 F.Supp.2d 775, 781 (N.D. Ind. 2011) (citing
Armstrong v. Squadrito, 152 F.3d 564, 582 (7th Cir.
1998)); see also Owen v. City of
Independence, 445 U.S. 622, 657 (1980). Therefore,
Defendant's qualified immunity argument is moot and need
not be considered further.
Summary Judgment Standard
judgment is appropriate when the “pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and the movant is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317 (1986). A genuine issue of
material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). “Only disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.”
Id. To determine whether a genuine issue of material
fact exists, the court must review the record, construing all
facts in the light most favorable to the nonmoving party and
drawing all reasonable inferences in that party's favor.
Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003).
overcome a motion for summary judgment, the nonmoving party
cannot rest on the mere allegations or denials contained in
its pleadings. Rather, the nonmoving party must present
sufficient evidence to show the existence of each element of
its case on which it will bear the burden at trial.
Celotex, 477 U.S. at 322-23; Robin v. Espo
Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000).
Where a factual record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial. Fed.R.Civ.P. 56(e);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). In other words, “[s]ummary
judgment is not a dress rehearsal or practice run; it is the
put up or shut up moment in a lawsuit, when a party must show
what evidence it has that would convince a trier of fact to
accept its version of the events.” Hammel v. Eau
Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)
(quotations omitted); see also Goodman v.
Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir.
argues initially that Plaintiffs' constitutional claims
were improperly brought directly under the U.S. Constitution
rather than under 42 U.S.C. § 1983 as required. [DE
35 at 17 (citing Arpin v. Santa Clara Valley Transp.
Agency, 261 F.3d 912, 925 (9th Cir. 2001))]. Indeed,
Plaintiffs did not directly invoke Section 1983 in raising
their Fourteenth Amendment claims in their amended complaint.
However, in responding to Defendant's instant motion for
summary judgment, Plaintiffs acknowledged the Section 1983
requirement and indicated that they were indeed raising their
constitutional claims under Section 1983. [DE 42 at
13]. Moreover, Plaintiffs' amended complaint alleges
that Mr. Hines and Mr. Gant are “represented by counsel
in the immediate action and in . . . separate 42 U.S.C.
§ 1983 suit[s] . . . currently pending” in other
courts. [DE 20 at 8, ¶¶ 21, 22]. From this