SEBOLT v. LARIVA et al

Filing 7

Entry Discussing Complaint and Directing Further Proceedings - The clerk is designated, pursuant to Fed. R. Civ. P. 4(c)(2), to issue process to defendant Warden Leann LaRiva. Process shall consist of a summons. Because Sebolt is proceeding under t he theory recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, personal service is required. The Marshal for this District or his Deputy shall serve the summons, together with a copy of the complaint and a copy of this Entry, on the defendant and on the officials designated pursuant to Fed. R. Civ. P. 4(i)(2), at the expense of the United States. (See Entry) Signed by Judge William T. Lawrence on 12/18/2015. Copy sent to Plaintiff via US Mail. (GSO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

PHILIP M. SEBOLT,
Plaintiff,
vs.
LEANN LARIVA Current Warden of F.C.I.
Terre Haute, et al.,
Defendants.

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Case No. 2:15-cv-00353-WTL-WGH

Entry Discussing Complaint and Directing Further Proceedings
Plaintiff Philip M. Sebolt, a federal inmate at the Federal Correctional Institution in Terre
Haute, Indiana, filed this civil action alleging that his “fundamental right to receive information”
has been violated. See i.e., Dkt. 1, p. 8. For the reasons explained below, certain claims shall
proceed while other claims are dismissed.
Background
Sebolt filed this action to gain access to the Trust Fund Limited Inmate Computer System
(“TRULINCS”) so that he can receive and read publications (i.e., newsletters) published in, and
exclusively delivered through electronic form. Consistent with Bureau of Prison Policy, Sebolt has
been denied access to email because he is a sex offender confined in the Communication
Management Unit (“CMU”) and has a “Walsh Act” designation. Sebolt was placed in the CMU
because of the nature of his current conviction (advertising for child pornography) and conduct

and activity while incarcerated including the misuse/abuse of communication methods. Id. at p. 89. Sebolt contests the policies which restricted his access to TRULINCS.1
Prior to his transfer to FCI-Terre Haute, Sebolt was confined at the Federal Correctional
Institution in Hopewell, Virginia (FCI-Petersburg). In October 2010, the FCI-Petersburg
implemented TRULINCS and initially denied Sebolt access. Sebolt successfully challenged this
denial by filing a Request for Administrative Remedy. However, “[s]hortly after plaintiff was
granted access to the Electronic Messaging service, Plaintiff was found guilty of an Incident Report
and sanctioned to a loss of Electronic Messaging privileges for one year.” Dkt. 1, fn. 13.
The complaint further alleges pursuant to Title 28, United States Code, Section 4042(a),
that the warden may limit or an deny individual inmate’s access to TRULINCS at any time or as
part of the classification process.
Sebolt filed this civil action seeking a declaratory judgment, injunctive relief and money
damages.
Standard of Review
The complaint is now subject to the screening requirement of 28 U.S.C. § 1915A(b). This
statute directs that the Court dismiss a complaint or any claim within a complaint which “(1) is
frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks
monetary relief from a defendant who is immune from such relief.” Id. To satisfy the noticepleading standard of Rule 8 of the Federal Rules of Civil Procedure, a complaint must provide a
“short and plain statement of the claim showing that the pleader is entitled to relief,” which is
sufficient to provide the defendant with “fair notice” of the claim and its basis. Erickson v. Pardus,

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Even though Sebolt knew his request to access the TRULINCS program had been denied he took
advantage of a one day technical glitch in the system which gave him “unfettered access to the Electronic
Messaging service” for approximately four hours. See dkt. 1 at p. 16.

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551 U.S. 89, 93 (2007) (per curiam) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
and quoting Fed. R. Civ. P. 8(a)(2)). The purpose of this requirement is “to give the defendant fair
notice of what the claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). The complaint “must
actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right to
relief above the speculative level.” Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin.
Servs., 536 F.3d 663, 668 (7th Cir. 2008) (quoting Tamayo v. Blagojevich, 526 F.3d 1074, 1084
(7th Cir. 2008)).
Discussion
Sebolt’s complaint, liberally construed, is understood to allege a First Amendment
challenge to the application of a prison policy which restricts his access to TRULINCS. In such a
case, the critical question is whether the prison’s practice of impeding prisoner access to
TRULINCS under the situation presented “is reasonably related to legitimate penological
interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). The Supreme Court in Turner established a
“reasonableness” test to determine whether a prison policy violates inmates’ constitutional rights,
which requires courts to evaluate: (1) whether there is a valid, rational connection between the
prison regulation and the legitimate interest put forth to justify it; (2) whether inmates have an
alternative means of exercising the right; (3) the burden on prison resources that would be imposed
by accommodating that right; and (4) whether there are alternatives to the regulation that fully
accommodate the inmate’s rights at de minimis cost to valid penological objectives.
Other Courts who have considered inmates’ claims that their constitutional rights were
violated by the denial of use of TRULINCS have been rejected summarily. See Stratton v. Speanek,
No. 14-CV-120-HRW, 2014 WL 6705394, at *3 (E.D. Ky. Nov. 26, 2014) (citing cases and

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finding that use of the TRULINCS system is an institutional privilege and not a constitutionally
protected right). Edington v. Warden of FCI Elkton, No. 4:14CV2397, 2015 WL 1843240, at *4
(N.D. Ohio Apr. 22, 2015) (dismissing Bivens claim based on denial of access to TRULINCS at
screening).
The allegations in the complaint suggest that the prison policy which restricts Sebolt’s
access to TRULINCS is reasonable. However, the record has not been developed and this case will
not be dismissed by the Court sua sponte. Accordingly, Sebolt’s claim that his First Amendment
rights have been violated shall proceed as submitted.
Service of Process
The clerk is designated, pursuant to Fed. R. Civ. P. 4(c)(2), to issue process to defendant
Warden Leann LaRiva. Process shall consist of a summons. Because Sebolt is proceeding under
the theory recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), personal service is required. Robinson v. Turner, 15 F.3d 82 (7th Cir. 1994).
The Marshal for this District or his Deputy shall serve the summons, together with a copy of the
complaint and a copy of this Entry, on the defendant and on the officials designated pursuant to
Fed. R. Civ. P. 4(i)(2), at the expense of the United States.
No address has been provided for any of the other defendants. In addition, given the real
possibility that all of the defendants are entitled to qualified immunity there is no reason for
delaying this action until such time as all defendants are served. The plaintiff should notify the
court of the other defendants’ addresses or his inability to obtain this information given his
incarceration.
IT IS SO ORDERED.

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Date: 12/18/15
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Distribution:
PHILIP M. SEBOLT
TERRE HAUTE FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808
United States Marshal
46 East Ohio Street
179 U.S. Courthouse
Indianapolis, IN 46204

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