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UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
SOUVANNASENG S. BORIBOUNE,
Petitioner-Appellant,
v.
JON LITSCHER, et al.,
Respondents-Appellees.
No. 03-1747
2003 U.S. App. Lexis 26540
December 3, 2003 *,
Submitted
December 29, 2003, Decided
NOTICE: RULES OF THE SEVENTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
Souvannaseng
Boriboune, who is confined at the Wisconsin Secure Program Facility (WSPF,
formerly known as Supermax Correctional Institution), brought suit under 42
U.S.C. § 1983 and state law alleging that prison officials violated his rights
when they disciplined him for communicating on the telephone in a language
other than English without first receiving approval from his social worker. The district court dismissed
Boriboune's federal claims, declined to exercise supplemental jurisdiction over
his remaining state claims, and dismissed his complaint. We affirm.
Boriboune
is originally from Laos and often telephones family and friends who speak
primarily Lao. When Boriboune arrived at WSPF in January 2002, prison
officials permitted him to speak Lao on the telephone. But in May 2002 the facility instituted a new
policy prohibiting inmates from communicating by telephone in a language other
than English. The policy includes an exception for an inmate who obtains
approval from his social worker. When the policy went into effect, Boriboune
wrote to his social worker asking whether the policy applied to him and seeking
approval to speak in Lao. Boriboune sent several letters to his social worker
between June and August 2002. Though his letters were generally ignored,
Boriboune received one response on June 30 directing him "to wait."
Meanwhile,
Boriboune continued to call his mother and speak to her in Lao, and, allegedly
in retaliation for speaking to his mother in Lao, he received three conduct
reports for speaking a non-English language without approval. The first report
was dismissed and converted to a warning about the English-only policy, because
prison officials were not sure that Boriboune had been aware of the new rule.
The second and third reports, however, resulted in guilty decisions and
sanctions (60 days' program segregation and the loss of fourteen days'
telephone privileges for the second infraction, and 120 days' program
segregation and the loss of two telephone calls for the third). Boriboune filed numerous
complaints challenging the conduct reports and sanctions. All were dismissed, one
with an instruction to Boriboune to contact his social worker to obtain
permission to speak Lao. In August, several days before the Conduct Adjustment
Board reached a decision on his third conduct report, Boriboune at last
received permission from his social worker to speak Lao.
On appeal
Boriboune contends that the First Amendment entitles him to talk on the
telephone in Lao. But though prisoners have a right under the First Amendment
to communicate with others outside the prison, see Thornburgh v. Abbott,
490 U.S. 401, 407, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989), we have expressed doubt that this
amounts to an unqualified right for a prisoner to have access to a telephone,
see Arsberry v. Illinois, 244 F.3d 558, 564-65 (7th Cir. 2001) ("Not to allow
[prisoners] access to a telephone might be questionable on other grounds, but
to suppose that it "would infringe the First Amendment would be
doctrinaire in the extreme."). See also Washington v. Reno, 35 F.3d 1093,
1100 (6th Cir. 1994) (concluding that prisoners have no entitlement to
unlimited use of a telephone); Benzel v. Grammer, 869 F.2d 1105, 1110 (8th Cir.
1989) (same); Lopez v. Reyes, 692 F.2d 15, 17 (5th Cir. 1982) ("A prisoner
in maximum security has no right to unlimited telephone use."). Even those
courts that have concluded that prisoners have some First Amendment right to
telephone access have recognized that under Turner v. Safley, 482 U.S. 78, 89,
96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987), this right may be limited as long as
the regulation is reasonably related to a legitimate penological interest. Johnson
v. California, 207 F.3d 650, 656 (9th Cir. 2000); Washington, 35 F.3d at 1100.
In this
case, the WSPF officials noted on one of Boriboune's conduct reports that
prohibiting prisoners from talking on the telephone in a language other than
English without prior approval was justified by the prison's need to control "secret means of
communication" to help "prevent conspiracies and escapes." This
is certainly a legitimate penological concern. The only question is thus
whether the prison's policy is reasonably related to that interest. In that
connection, it is significant that the policy does not prohibit all telephone
communication in a language other than English; it simply requires that an
inmate must have prior permission before doing so. This would presumably enable
to prison to monitor his calls in a manner equivalent to the monitoring of
English-language calls, if it thought this was advisable. This policy also
incorporates reasonable limits: it does not, for example, affect Boriboune's
ability to receive visits or mail from his family and friends. Under these
circumstances, we conclude that the prison's policy is reasonably related to
its interest in maintaining security. See also Martin v. Tyson, 845 F.2d 1451,
1458 (7th Cir. 1988) (per curiam) (upholding policy limiting pre-trial
detainee's telephone access to every other day); Pope v. Hightower, 101 F.3d
1382, 1385 (11th Cir. 1996) (upholding policy limiting use to pre-approved
calling list of at most ten people); Washington, 35 F.3d at 1100 (upholding
policy limiting use to pre-approved list of at most thirty people); Benzel, 869
F.2d at 1108-09 (upholding policy limiting use by inmates in disciplinary
segregation to pre-approved list of at most three people).
Kikimura v.
Turner, 28 F.3d 592, 596 (7th Cir. 1994), does not compel a contrary
conclusion. In that case, we considered the constitutionality of a policy that
prohibited inmates from receiving any materials written in a language other
than English. 28 F.3d at 595-96. The policy at issue permitted no alternatives,
such as screening or translating non-English materials, to allow prisoners
access. 28 F.3d at 599. In holding the policy unconstitutional, we concluded
only that "summary exclusion of foreign language materials is
unconstitutional." 28 F.3d at 598. We also noted that our decision was
"narrowly limited" to the situation in which "a prison makes no
effort at all to accommodate the constitutional rights of prisoners native in languages
other than English." 28 F.3d at 598. See also Thongvanh v. Thalacker, 17
F.3d 256, 259-60 (8th Cir. 1994) (concluding that prison regulations
prohibiting inmates from receiving any mail in a language other than English are
unconstitutional); Ramos v. Lamm, 639 F.2d 559, 581 (10th Cir. 1980) (same). In
contrast, the policy followed in the WSPF includes a reasonable
accommodation--permission from a social worker--that allows a prisoner to speak
in a foreign language on the telephone.
We also reject Boriboune's argument that the district court erred in concluding that his complaint fails to state a claim for a violation of due process. Boriboune was punished for ignoring the telephone policy, but the sanctions imposed--short-term loss of telephone privileges and disciplinary segregation--implicated no liberty interest and triggered no due process protections. See Sandin v. Conner, 515 U.S. 472, 483-84, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995). Boriboune tries to circumvent this result by claiming that his disciplinary violations also resulted in a loss of good-time credits. See Piggie v. Cotton, 344 F.3d 674, 677 (7th Cir. 2003) (loss of earned-credit time implicates due process protections). The documents he attached to his complaint, however, confirm that his punishments were limited to short-term restrictions on telephone use and placement in segregation.
AFFIRMED.
* After an examination of
the briefs and the record, we have concluded that oral argument is unnecessary.
Thus, the appeal is submitted on the briefs and the record. See Fed. R. App. P.
34(a)(2).
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