Rolling v. Carter et al

Filing 3

OPINION AND ORDER: The Court GRANTS Bryson Rolling leave to proceed against Robert E. Carter in his official capacity for injunctive relief for denying him visitation with his minor child pursuant to IDOC policy 02-01-102; DISMISSES Dfts William Wilson, Riggle, and Sheron Hawk; DIRECTS the clerk and the US Marshals Service, as required by 28:1915(d), to issue and serve process on Robert E. Carter with a copy of this order and the Complaint 2 ; ORDERS, pursuant to 42:1997e(g)(2), that Rober t E. Carter respond, as provided for in the Fed.R.Civ.P. and N.D. Ind. L.R. 10-1(b), only to the claims for which the plaintiff has been granted leave to proceed in this screening order; and ORDERS Robert E. Carter to separately respond to Plaintiff's motion for a preliminary injunction when he files his response to the complaint. Signed by Judge Jon E DeGuilio on 3/13/2018. (Copy mailed as directed in Order)(lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
BRYSON ROLLING,
Plaintiff,
v.

CAUSE NO.: 3:18-CV-158-JD-MGG

ROBERT E. CARTER,
Defendant.
OPINION AND ORDER
Bryson Rolling, a prisoner without a lawyer, alleges he was denied visitation
privileges with his minor child due to a prior sex offense conviction. He seeks injunctive
relief so he can visit with his son. “A document filed pro se is to be liberally construed,
and a pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quotation marks and citations omitted). Nevertheless, pursuant to 28 U.S.C. §
1915A, the court must review the merits of a prisoner complaint and dismiss it if the
action is frivolous or malicious, fails to state a claim upon which relief may be granted,
or seeks monetary relief against a defendant who is immune from such relief.
Rolling was convicted on charges of child molestation in 2010, for which he was
sentenced to five years in prison and required to register as a sex offender. ECF 2 at 2.
His sentence also included a rehabilitation program for sex offenders, which he
completed. Id. In 2016, he was convicted on charges of aggravated battery and
sentenced to ten years in prison, which he is now serving at Miami Correctional Facility.

There, he requested visitation privileges with his minor child and was denied due to his
previous sex offense. Id. Department of Correction policy 02-01-102 places a “VisitorMinor Restriction” on offenders who have been convicted of a sex offense involving a
child, even if that is not the offense for which they are currently committed.1 Rolling
claims the application of the prison’s policy here violates his constitutional rights, and
he seeks an injunction ordering the defendants to allow him visitation privileges with
his son.
Prisoners retain “a limited constitutional right to intimate association,” and
prison officials may violate the Constitution by “permanently or arbitrarily denying an
inmate visits with family members” without balancing the prisoner’s interests against
legitimate penological objectives. Easterling v. Thurmer, 880 F.3d 319, 322–23 (7th Cir.
2018) (citing Overton v. Bazzetta, 539 U.S. 126 (2003); Turner v. Safley, 482 U.S. 78 (1987)).
Thus, “a prisoner—even a sex offender—who alleges that a permanent ban on visits
with his minor children has no legitimate justification states a valid constitutional
claim.” Id.
In determining whether a prison policy is constitutional, courts must consider
four factors: (1) whether a rational connection exists between the prison policy and a
legitimate governmental interest advanced as its justification; (2) whether alternative
means of exercising the right are available notwithstanding the policy or regulation; (3)
what effect accommodating the exercise of the right would have on guards, other

IDOC policy 02-01-102-XXI, available at http://www.in.gov/idoc/files/02-01102_AP_Offender_Visitation__8-1-2013.pdf.
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prisoners, and prison resources generally; and (4) whether ready, easy-to-implement
alternatives exist that would accommodate the prisoner’s rights. Overton, 539 U.S. at 132
(citing Turner, 482 U.S. at 89–91, 107).
The interest Rolling asserts “is an important one.” Harris v. Donohue, 175 Fed.
App’x 746, 747 (7th Cir. 2006), cited in Easterling, 880 F.3d at 322–23 (restating the Harris
holding, “this time in a published opinion”). “In the prison context, courts have
observed that visitation may significantly benefit both the prisoner and his family.” Id.
In Harris, the Seventh Circuit addressed a challenge nearly identical to Rolling’s. It held
dismissal at the screening stage to be premature because “the defendants were never
required to explain the basis for their no-visitation policy,” as required for the policy to
be upheld under the Overton and Turner factors. Id. at 748. The same is true here. Rolling
states a claim for injunctive relief against Commissioner Robert E. Carter in his official
capacity. The remaining defendants will be dismissed, as it is clear the Commissioner
has the required authority to provide the relief sought, and it is unnecessary to have
more than one official-capacity defendant.
Next, Rolling seeks an “immediate injunction” against the policy. ECF 4 at 4. This
request is construed as a motion for a preliminary injunction. To obtain a preliminary
injunction, the moving party must show (1) he will suffer irreparable harm before the
final resolution of his claims; (2) available remedies at law are inadequate; and (3) he
has a likelihood of success on the merits. See BBL, Inc. v. City of Angola, 809 F.3d 317,
323–24 (7th Cir. 2015). The court then “weighs the competing harms to the parties if an
injunction is granted or denied and also considers the public interest.” Korte v. Sebelius,
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735 F.3d 654, 665 (7th Cir. 2013). As discussed above, Rolling’s likelihood of success on
the merits depends on whether the visitation policy may be upheld under the Turner
factors. Thus, the Department must put forth its reasons for the policy prior to a
disposition of this motion.
For these reasons, the court:
(1) GRANTS Bryson Rolling leave to proceed against Robert E. Carter in his
official capacity for injunctive relief for denying him visitation with his minor child
pursuant to IDOC policy 02-01-102;
(2) DISMISSES Defendants William Wilson, Riggle, and Sheron Hawk;
(3) DIRECTS the clerk and the United States Marshals Service, as required by 28
U.S.C. § 1915(d), to issue and serve process on Robert E. Carter with a copy of this order
and the Complaint (ECF 2);
(4) ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Robert E. Carter respond,
as provided for in the Federal Rules of Civil Procedure and N.D. Ind. L.R. 10-1(b), only
to the claims for which the plaintiff has been granted leave to proceed in this screening
order; and
(5) ORDERS Robert E. Carter to separately respond to Plaintiff’s motion for a
preliminary injunction when he files his response to the complaint.
SO ORDERED on March 13, 2018.
/s/ JON E. DEGUILIO
JUDGE
UNITED STATES DISTRICT COURT

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