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Hines v. Carter

United States District Court, N.D. Indiana, South Bend Division

October 18, 2018

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.


          Michael G. Gotsch, Sr. United States Magistrate Judge

         Plaintiffs' 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[1], 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. § 794a.

         After 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).

         I. Relevant Background

         The 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 issues.

         From 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[2], 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[3], 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].

         Plaintiffs 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. [Id.].

         The 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].

         Calls 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].

         In 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, ¶ 18].

         WCF's 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 4].

         Although 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.

         Defendant 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 prison.

         As a 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.

         II. Analysis

         A. Summary Judgment Standard

         Summary 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).

         To 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. 2010).

         B. Constitutional Claims

         Defendant 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, ΒΆΒΆ 21, 22]. From this statement, ...

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