Son v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

LE VAN SON,

Plaintiff,

v. Case No: 5:18-cv-265-TPB-PRL

MARK S. INCH, in his official

capacity as the Secretary, Florida

Department of Corrections, and

JESS BALDRIDGE, in his official capacity

as the Warden of Sumter Correctional

Institution,1

Defendants.

__________________________

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

I. Status

Plaintiff, an inmate of the Florida penal system, initiated this action by

filing a civil rights Complaint under 42 U.S.C. § 1983. (Doc. 8) He is

proceeding on an Amended Complaint alleging that he was denied access to a

Vietnamese translator in violation of his access to courts and equal protection

rights under the First and Fourteenth Amendments. (Doc. 10) He sues Mark

1 Under Rule 25(d)(1) of the Federal Rules of Civil Procedure, the Court

substituted Mark S. Inch for Julie Jones as the proper party Defendant as

the Secretary of the FDOC, and Jess Baldridge for John DeBell as the proper

party Defendant as the Warden of Sumter Correctional Institution. (Doc. 31

at 1 n.1)

S. Inch in his official capacity as the Secretary of the FDOC, and Jess

Baldridge in his official capacity as the Warden of Sumter Correctional

Institution. (Id. at 2) As relief, Plaintiff requests, inter alia, that the Court

find Rule 33-501.301(3)(d) of the Florida Administrative Code

unconstitutional, issue an order for the appointment of counsel to represent

Plaintiff, and all other relief that this Court deems just and proper. (Doc. 10

at 5)

Before the Court is “Defendants’ Motion for Final Summary Judgment

and Memorandum of Law” (Doc. 41; Motion) with exhibits (Docs. 41-1

through 41-5; Motion Exs. A-E). Plaintiff filed a Response in opposition to the

Motion. (Doc. 50; Response) Defendants’ Motion is ripe for review.

II. Factual Allegations and Procedural History

Plaintiff is a Vietnamese national with “limited aptitude in English.”

(Doc. 10 at 5) He is an inmate of the Florida penal system and thus subject to

the Florida Department of Corrections (FDOC) policies and rules. At issue is

Rule 33-501.301(3)(d), Florida Administrative Code, which provides: “Law

libraries shall provide interpreters for any language other than English that

is native to 5 percent or more of the statewide inmate population.” In 2018,

Plaintiff initiated this action arguing the Rule is unconstitutional, because it

allows the FDOC to exclude interpreters for Vietnamese inmates who account

for less than 5 percent of the inmate population. (Doc. 10 at 4)

According to Plaintiff, in 2011, while housed at Franklin Correctional

Institution, he requested that the FDOC provide him with a Vietnamese

translator to help him read his state court trial transcripts, but the FDOC

refused. (Id. at 4) He then claimed that on December 12, 2017, while housed

at Sumter Correctional Institution, he again requested but was denied a

Vietnamese interpreter “to assist [him] in filing [a] postconviction motion and

to interpre[t] trial transcript[s].” (Id. at 5) Plaintiff argued that being denied

a translator violated his Fourteenth Amendment due process and equal

protection rights “guaranteed [to] all other inmates being held in [the FDOC]

who are provided with [an] interpreter to assist in filing postconviction

motions and other legal pleading[s].” (Id. at 6) He also claimed that being

denied a translator deprived him of his First Amendment right of access to

the courts. (Id. at 5)

Defendants moved to dismiss (see Doc. 24), and the Court dismissed

Plaintiff’s access to courts claim and any claim premised on acts that

occurred in 2011 (see Doc. 31 at 11-13). The Court denied Defendants’ motion

to dismiss to the extent they sought to dismiss Plaintiff’s equal protection

claim stemming from actions occurring after 2011. (Id.) Thus, Plaintiff’s

equal protection claim challenging the constitutionality of Rule 33-

501.301(3)(d) is the only claim remaining. Defendants’ instant Motion

followed.

i. Defendants’ Motion

Defendants argue that Plaintiff has failed to show that Rule 33-

501.301(3)(d) violates the Equal Protection Clause. (Motion at 2) They

contend that Plaintiff fails to demonstrate that Rule 33-501.301(3)(d)

implicates a suspect class. (Id. at 6-10) Instead, they assert that “[t]he policy

is based solely on language needs in the inmate population and does not

discriminate against inmates based on race or national origin.” (Id. at 15) To

that end, they maintain that the Court need only evaluate the

constitutionality of the Rule under the rational basis standard rather than

strict scrutiny. (Id.) In applying that standard of review, Defendants contend

that the intent of the FDOC’s complete policy on law library access is to

provide inmates with various services to meaningfully access the courts. (Id.

at 11) (citing Motion Ex. D); see generally Fla. Admin. Code r. 33-501.301.

The interpreter policy in Rule 33-501.301(3)(d) “is an attempt to provide

additional services to promote access to the courts for non-English speaking

inmates.” (Motion at 11) Defendants contend that while the “the legislative

purpose of the 5 percent classification in the law library policy was not

articulated when the rule was developed”; “[t]he policy furthers the

penological goal of” providing interpreters to prevalent language needs and

“enhancing an inmate’s ability to access the court, without placing an

unreasonable burden on DOC’s resources to provide an interpreter for every

inmate in every language.” (Id. at 11-12)

Defendants also argue that Plaintiff fails to prove that purposeful

discrimination was a motivating factor for the implementation of Rule 33-

501.301(3)(d). (Id. at 13) According to Defendants, “when looking at the

application of the policy, there is a clear absence of discriminatory purpose or

intent based on race or national origin . . . .” (Id. at 14) In support of this

argument, Defendants provide the Affidavit of Allen Dean Peterson, Law

Library Administrator, who is responsible for providing library services to 67

institutional libraries within the FDOC. (Motion Ex. E at 1-4) Peterson’s

Affidavit provides the following in relevant part:

I am familiar with Rule 33-501.301(3)(d) . . . .

The rule provides interpreters to non-English

speaking inmates if the language needed makes up 5

percent or more of the current statewide inmate

population. I have researched Rule 33-501.301(3)(d) [

] but was unable to locate any documentation

regarding the purpose or intent of the policy’s 5

percent classification.

I have 20 years of experience regarding the

practical application of this policy in DOC’s

institutions.

The law library policy does not pay for

professional interpreters to come into the facility to

translate for non-English speaking inmates. The

policy also does not pay for inmates to have their

legal documents translated or transcribed from

English to another language.

The law library policy essentially functions as

an inmate to inmate assistance program. Generally,

DOC staff or certified inmate law clerks, assist with

law library interpreter requests. DOC does not

contract or pay for a professional service provider for

interpreter needs but rather identifies other inmates

within DOC that can assist in the needed language.

This is a volunteer-based system where inmates

assist each other with their legal needs.

The policy may affect inmates differently based

on the prevalence of their native language in the

prison population. If a native language is uncommon

in the inmate population, it is difficult to locate

another inmate that can provide assistance because

the language is uncommon.

Any disparate impact on groups of non-English

speaking inmates is not intentional. The policy does

not deny interpreter assistance to an inmate based on

race or national origin. A denial is based upon the 5

percent rule and the prevalence of the language in

the inmate population.

A prevalent language can be easily

accommodated because an interpreter can be easily

located and identified. An uncommon language is

difficult to accommodate because other inmates or

staff who can interpret become rare.

. . .

I have personal experience obtaining inmate to

inmate interpreter assistance under the policy. I have

assisted many inmates with obtaining interpreters in

the Spanish language and a much smaller number in

the Haitian Creole language. In my experience, it is

relatively easy to obtain inmate to inmate assistance

for Spanish and Haitian Creole inmates because their

languages are prevalent in the prison population.

I have never been asked to locate a Vietnamese

interpreter for an inmate and in my experience, that

request would be difficult to accommodate because

the language is not prevalent in the prison

population.

I have personal experience attempting to

accommodate inmates with interpreter requests

when languages are uncommon. On one occasion, I

attempted to obtain inmate to inmate assistance for a

Korean inmate and was unsuccessful in obtaining

inmate to inmate assistance for him. As a result, I

personally located volunteers from a group of Korean

businessmen participating in a program at the

University of Florida to come into the facility and

assist[] with translating between the inmate and

assigned inmate law clerks.

Although I was able to assist the Korean

speaking inmate with interpreters in this one

situation, it did take several hours of time over the

course of many days to locate a volunteer that would

be willing to assist the Korean speaking inmate.

In my experience, it would be very difficult and

burdensome to continually accommodate interpreter

requests when another inmate or staff member

cannot be identified for an uncommon language need.

Although the purpose of the 5 percent

classification for interpreter services is unknown, the

rule prevents DOC staff from having the burden of

seeking out volunteer interpreters to assist in

uncommon languages. It also relieves any financial

obligation DOC may have to pay for private

interpreters when volunteers cannot be found.

A non-English speaking inmate is free to seek

out their own volunteer interpreter if their language

is uncommon in the facility and help cannot be

obtained.

(Motion Ex. E at 2-4) Defendants also provide the Affidavit of Lori Nolting,

the FDOC’s Operations and Management Consultant Manager. (Motion Ex.

C) In her Affidavit, Nolting states the following:

On December 8, 2017, there were a total of 96,498

inmates in the Department’s custody and 49 of those

inmates were born in Vietnam. On that same date,

there were no inmates in custody that were classified

as speaking Vietnamese as their primary language.

As of August 14, 2020, there were a total of 85,240

inmates in the Department’s custody and 48 of those

inmates were born in Vietnam. On that same date,

there were no inmates in custody that were classified

as speaking Vietnamese as their primary language.

(Motion Ex. C at 2)

ii. Plaintiff’s Response

In his Response, Plaintiff argues that the Court should apply strict

scrutiny to determine the constitutionality of the prison policy because the

prison Rule (1) impedes a fundamental right and (2) explicitly implicates a

suspect class. (Response at 2) Plaintiff also contends that his equal protection

claim stems from allegations that Rule 33-501.301(3)(d) is unconstitutional

on its face, and thus he need not show discriminatory purpose or intent. (Id.

at 5) As to his fundamental right argument, Plaintiff argues that the policy

impedes his ability to connect with other Vietnamese inmates who could help

him translate legal materials and ascertain postconviction claims, and thus,

hinders his right to access of courts. (Id. at 8)

As to his suspect class argument, Plaintiff contends that the Rule’s

language-based classification implicates national origin. (Id. at 10) According

to Plaintiff, and contrary to his earlier claim that the Rule is facially

unconstitutional, Plaintiff contends the Rule’s “classification is not based on

‘language alone,’ but rather, a combination of language plus the prevalence of

that language resulting in disparate treatment between similarly situated

English-deficient inmates.” (Id. at 14)

In any event, according to Plaintiff, even if his claim is subject to the

rational basis analysis, Defendants still would not be entitled to summary

judgment because there is no legitimate governmental purpose served by the

Rule’s exclusionary impact. (Id. at 15)

III. Summary Judgment Standard

Summary judgment is appropriate if “the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual dispute does

not defeat a properly supported motion for summary judgment. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Only a genuine dispute of

material fact precludes summary judgment. Id. at 249.

The moving party bears the initial burden of showing no genuine

issues of material fact. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,

1260 (11th Cir. 2004). When the moving party discharges its burden, the

nonmoving party must show the existence of genuine issues of material fact.

Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995). If

the parties’ evidence conflicts, the nonmoving party’s evidence is presumed

true and all reasonable inferences are drawn in the nonmoving party’s

favor. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003).

IV. Analysis

The Equal Protection Clause requires the government to treat similarly

situated individuals in a similar manner. Gary v. City of Warner Robins, 311

F.3d 1334, 1337 (11th Cir. 2002). “When legislation classifies persons in such

a way that they receive different treatment under the law, the degree of

scrutiny the court applies depends upon the basis for the classification.” Id.

“If a law treats individuals differently on the basis of race or another suspect

classification, or if the law impinges on a fundamental right, it is subject to

strict scrutiny.” Avera v. Airline Pilots Ass’n Intern., 436 F. App’x 969, 974

(11th Cir. 2011) (citing Eide v. Sarasota Cnty., 908 F.2d 716, 722 (11th Cir.

1990)). Otherwise, the law need only be rationally related to a legitimate

government purpose. Id.

Equal protection claims fall into three categories. Maxi–Taxi of Fla.,

Inc. v. Lee Cnty. Port Auth., No. 2:07CV82, 2008 WL 1925088, at *6 (M.D.

Fla. Apr. 29, 2008) (citing E & T Realty v. Strickland, 830 F.2d 1107 (11th

Cir. 1987)). The first type of equal protection claim is “a claim that a statute

discriminates on its face.” See E & T Realty, 830 F.2d at 1112 n. 5. “The

second type of claim is one in which the party alleges ‘that the neutral

application of a facially neutral statute has a disparate impact.’” Maxi–Taxi,

2008 WL 1925088, at *6. To prove a statute has a “disparate impact,” the

plaintiff must show “purposeful discrimination.” Id. The third type of equal

protection claim alleges that the government “unequally administers a

facially neutral statute.” Id. The plaintiff may succeed if he proves he has

“been treated differently than others similarly situated and there is no

rational basis for the disparate treatment.” Id. at n. 8 (citations omitted).

Plaintiff first argues that his equal protection claim is subject to strict

scrutiny because, on its face, the Rule impinges upon his fundamental right

to access of courts and implicates a suspect class (i.e., national origin). As to

his access to courts claim, as noted in its Order on Defendants’ motion to

dismiss (see Doc. 31 at 8-9 n.6), because Plaintiff has failed to allege all the

elements of an independent access to courts claim, he has failed to show that

the Rule hinders a fundamental right requiring strict scrutiny. See Jackson v.

State Bd. Of Pardons & Paroles, 331 F.3d 790, 797 (11th Cir. 2003) (holding

that because plaintiff failed to allege an actual injury regarding his right to

access to courts, he did not demonstrate the impediment of a fundamental

right, and thus, his equal protection claim would not be evaluated under

strict scrutiny).

As to his claim that the Rule implicates a suspect class, suspect

classifications typically hinge on immutable characteristics determined solely

by the incident of birth (i.e., race, national origin, sex). Frontiero v.

Richardson, 411 U.S. 677, 686 (1973); Williams v. Pryor, 240 F.3d 944, 947

(11th Cir. 2001); Miccosukee Tribe of Indians of Fla. v. United States, 722 F.

Supp. 2d 1293 (S.D. Fla. 2010). The Administrative Rule that Plaintiff

challenges here depends on the language Plaintiff speaks. See Vega v. Jones,

No. 3:15cv407/MCR/EMT, 2016 WL 5019197, at *5-*6 (N.D. Fla. March 21,

2016) (finding that Fla. Admin. Code r. 33-501.301(3)(d) is based on language,

not race of Spanish-speaking inmate, and thus, did not facially discriminate

against a protected class), report and recommendation adopted, No.

3:15cv407/MCR/EMT, 2016 WL 5024212, at *1 (N.D. Fla. Sept. 16, 2016).

While the Eleventh Circuit has noted in dicta that “to a person who speaks

only one tongue or has difficulty using another language than the one spoken

in his own home, language might well be an immutable characteristic like

skin color, sex or place of birth”; see Garcia v. Gloor, 618 F.2d 264 (5th Cir.

1980)2; the Eleventh Circuit and “[t]he Supreme Court never h[ave] held that

language may serve as a proxy for national origin for equal protection

analysis.” Sandoval v. Hagan, 197 F.3d 484, 511 n.26. (11th Cir. 1999)

(recognizing its prior dicta in Gloor, but also acknowledging that language

alone has never implicated a facial equal protection challenge and declining

to make such a finding); see also Portales v. Sch. Board of Broward Cty., No.

16-62935-CIV-MORENO, 2017 WL 4402534, at *2-*3 (S.D. Fla. Oct. 2, 2017)

(noting that “[t]he Eleventh Circuit has not directly addressed whether the

inability to speak a certain language, without more, is protected”; and thus,

relying on other circuits that have decided the issue to find that language is

not an immutable characteristic); see also Moua v. City of Chico, 324 F. Supp.

1132, 1137-38 (E.D. Cal. Apr. 9, 2004) (holding “no court has ever held that

strict scrutiny is triggered by a municipality’s decision not to provide

interpreters for all non-English-speaking residents in the City’s provision of

services”).

2 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en

banc), the United States Court of Appeals for the Eleventh Circuit adopted as

binding precedent all decisions of the former United States Court of Appeals

for the Fifth Circuit that were rendered prior to the close of business on

September 30, 1981.

Other circuits have directly held that language-based classifications are

not the equivalent of national-origin-based classifications, and thus, statutes

that limit services based on language do not, on their face, implicate a

suspect class. See Olagues v. Russonello, 770 F.2d 791, 801 (8th Cir. 1985)

(holding “language-based classification is not the equivalent of a national

origin classification, and does not denote a suspect class”); Soberal-Perez v.

Heckler, 717 F.2d 36, 41 (2d Cir. 1983) (holding Secretary’s failure to provide

forms and services in Spanish language does not facially discriminate based

on suspect class because “[l]anguage, by itself, does not identify member of a

suspect class”); see also Gloor, 618 F.2d at 268 (“Neither [Title VII] nor

common understanding equates national origin with the language one

chooses to speak”). Further, other district courts have held that language, by

itself, does not implicate a suspect class. See Santiago-Lebron, 767 F. Supp.

2d at 1349; Portales, 2017 WL 4402534, at *2-*3; Franklin v. District of

Columbia, 960 F. Supp. 394, 432 (D.D.C. 1997), rev’d in part and vacated in

part on other grounds, 163 F.3d 625 (D.C. Cir. 1998) (finding language

proficiency is not interchangeable with national origin or race).

Considering those cases to be instructive, the Court finds that Plaintiff

fails to demonstrate that Rule 33-501.301(3)(d) implicates a suspect class so

as to require strict scrutiny review. The Rule concerns only the language the

inmate speaks and does not make any distinction based on national origin or

race. Indeed, being Vietnamese and having an inability to speak English are

not analogous. Thus, for purposes of his equal protection claim, Plaintiff has

failed to show he is a member of a suspect class, and thus, the Rule requires

only rational basis review.

Plaintiff seems to recognize that his claim is subject to rational basis

review and makes the alternative argument that there is no rational basis for

the Rule because it serves no legitimate governmental purpose. (Response at

15) However, Defendants have submitted evidence that Rule 33-501.301(3)(d)

relieves FDOC officials from the financial and time-consuming burden of

seeking outside interpreters for rare and isolated languages. (Motion Ex. C at

4) Indeed, the purpose of the Rule is to facilitate an inmate’s ability to consult

with other inmates who may be able to translate material. It does not grant

unfettered access to outside interpreters or mandate that the FDOC retain

outside interpreters for even the most common of foreign languages. Further,

nothing in the Rule prohibits an inmate from independently seeking outside

help and if an inmate knows an interpreter, that inmate is free to contact

that translator on their own. Instead, the Rule merely states that the FDOC

is not solely responsible for providing that resource when the pool of qualified

inmate translators for certain languages is so limited that it makes it nearly

impossible. As such, Defendants articulate a conceivable rational basis for

Rule 33-501.301(3)(d), because the Rule serves the most prisoners within the

reality of their limited resources and its classification on languages

representing less than 5% of the population is not arbitrary or irrational.

Nevertheless, even assuming Plaintiff has shown that he is a member

of a suspect class and Rule 33-501.301(3)(d) involves that suspect class,

Plaintiff has failed to prove that the resulting discrimination by prison

officials was intentional. See, e.g., Martinez v. Warden, --- F. App’x ---, 2021

WL 912687, at *3, (11th Cir. Mar. 10, 2021) (finding that even if the plaintiff

showed he was a member of a suspect class, the plaintiff failed to show that

the prison library’s absence of Spanish legal material stemmed from

intentional discrimination). The record evidence shows that the lack of

Vietnamese speaking inmate interpreters does not result from intentional

discrimination, but from the unavailability of inmates who are fluent in

English and Vietnamese.

Accordingly, it is

ORDERED AND ADJUDGED:

1. Defendants’ Motion for Final Summary Judgment and

Memorandum of Law (Doc. 41) is GRANTED.

2. The Clerk is DIRECTED to enter judgment in favor of

Defendants Inch and Baldridge and against Plaintiff and CLOSE the case.

DONE AND ORDERED at Tampa, Florida, this 8th day of June,

2021.

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TOM BARBER

UNITED STATES DISTRICT JUDGE

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C: Le Van Son, #373291

Counsel of Record

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