WALTMAN v. ORTIZ
Filing
11
OPINION. Signed by Judge Renee Marie Bumb on 7/30/2019. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
________________________
:
JOHN DOE,
:
:
Civ. No. 18-2958 (RMB)
Plaintiff
:
v.
:
OPINION
:
DAVID ORTIZ, WARDEN,
:
:
Defendant
:
________________________
:
BUMB, United States District Judge
Plaintiff John Doe is a prisoner incarcerated in the Federal
Correctional Institution (“FCI”) in Fort Dix, New Jersey.1 He filed
this civil action challenging Warden David Ortiz’s decision to
deny him access to the Public Messaging Service TRULINCS, alleging
violation of the Equal Protection Clause and the Administrative
Procedures Act, 5 U.S.C. § 701 et seq. (Compl., ECF No. 1.) The
Court dismissed the complaint without prejudice for failure to
state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b) and
42 U.S.C. § 1997e(c)(1). (Order, ECF No. 6.) On March 18, 2019,
Plaintiff filed a document that he entitled “First Amended Petition
for
Declaratory
and
Injunctive
Relief
Pursuant
to
the
Administrative Procedures Act and the Equal Protection Clause”
1
By Order dated January 22, 2019, the Court granted Plaintiff’s
request to proceed under a pseudonym. (Order, ECF No. 6.)
(“First Am. Compl.”, ECF No. 10) which is before the Court for
screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b) and 42
U.S.C. § 1997e(c)(1).
I.
The First Amended Complaint
The Court recited the factual allegations in Plaintiff’s
original complaint in its Opinion dated January 22, 2019. (Opinion,
ECF No. 5.) In short, Plaintiff challenges Warden David Ortiz’s
decision to exclude Plaintiff from using the Bureau of Prison’s
(“BOP”) TRULINCS electronic messaging service. Plaintiff further
alleges the following:
Prior to 2014, BOP Program Statement 5265.13
governed the granting of access to the BOP email function of TRULINCS. That particular
Program Statement broadly restricted access to
BOP e-mail to nearly all inmates convicted of
a sex offense, regardless of the nature of
their crime. Later, TRULINCS regulations were
moved to the Program Statement covering the
Trust Fund, PS 4500.11, most recently updated
on December 16, 2016. See Attachment B.
Regarding access to BOP e-mail, §14.9 of that
policy states "inmates are only restricted
from
using
TRULINCS
…
when
absolutely
necessary to protect the safety, security, or
orderly
operation
of
the
correctional
institution or the protection of the public or
staff."
See
“Attachment
B”
p.
19.
Specifically,
regarding
sex
offenders,
§14.9(a)(l) states "inmates whose offense
conduct, or other personal history indicates
a propensity to offend through the use of
email jeopardizes the safety, security, or
orderly
operation
of
the
correctional
facility, or the protection of the public or
staff, should be seriously considered for
restriction." ID. That same section instructs
2
that staff must conduct an individualized
assessment of each inmate "to determine if
their participation in the public messaging
service poses a 'realistic threat' and must
not
be
excluded
based
on
generalized
categories of previous conduct." ID. This is
a much narrower restriction than previously
employed and is a recognition by the BOP of
the
need
to
grant
each
inmate
an
individualized determination before excluding
them from this feature of TRULINCS.
(First Am. Compl., ECF No. 10 at 6-7.)
Plaintiff restates the entirety of his original complaint
with the following additions:
IV.A.iii. – Defendant’s Decision is Arbitrary
and Capricious
… Let this be clear. Preventing convicted sex
offenders from gaining access to vulnerable
minors is a legitimate government interest.
But the sexual abuse of a child by Plaintiff
is a crime that is literally impossible given
the fact that he is incarcerated. There is no
way, conceivable or otherwise, that plaintiff
could come into contact with a minor while he
is behind the walls of a federal prison. It is
a crime that literally cannot be committed.
Yes, inmates can still commit crimes while in
prison. And yes, access to email could
facilitate some of those crimes. But those are
crimes such as wire fraud, or identity theft,
or illegal sports betting, or the filing of
fraudulent liens. Those are crimes that can be
committed from afar, not crimes that require
contact between people. There is no kind of
“human error” possible that would make
Plaintiff’s previous crime possible under the
present circumstances. Indeed, those who have
a propensity to commit these type of
“distance” offenses are routinely granted
access to TRULINCS and such access is
restricted only after that inmate commits
3
another offense. Restricting Plaintiff from
TRULINCS because he might commit an impossible
offense demonstrates just how arbitrary this
restriction is.
iv -
TRULINCS Messages are Correspondence:
Although TRULINCS is a system unique to the
BOP, it is important to remember that “e-mail”
is still exactly that; it is electronic mail.
As such, inmates’ ability to send and receive
that kind of correspondence must be analyzed
under existing standards of review.
The Supreme Court has been abundantly clear
that prisons may restrict an inmates[’]
outgoing correspondence only to further an
important government interest unrelated to
suppression of expression and that limitations
must be no greater than absolutely necessary
or essential to protect that government
interest. Procunier v. Martinez, 416 U.S. 396,
43-41 (1974) and Thornborough [sic] v. Abbott,
490 US 401, 409-12 (1987). See also Nasir v.
Morgan, 350 F.3d 366, 371-2 (3rd Cir. 2003).
Mail restrictions on incoming correspondence
are valid only “if they are reasonably related
to a legitimate pen[o]logical interest.”
Turner v. Safely, 482 US 78, 89 (1987).
Defendant’s refusal to allow Plaintiff to send
outgoing correspondence is greater than
necessary to achieve the governmental interest
of protecting the public. TRULINCS messages
are not only fully monitored but also
experience an approximately 90-minute delay
between submission and delivery to the
intended recipient. This allows ample time to
review the message for inappropriate content
or any attempt at the commission of a crime.
This is decidedly more secure than sending
outgoing correspondence via the US Postal
Service. If an inmate wanted to commit an
offense in a written letter, he could write
the offending request, seal the envelope
himself, ad the letter could leave this lowsecurity facility without any review or
4
oversight at all. See 28 CFR § 540.14(c)(1)
(“Outgoing mail from a sentenced inmate in a
minimum or low security level facility may be
sealed by the inmate and…is sent out unopened
and uninspected.”) This further demonstrates
Defendant’s denial of TRULINCS access to
Plaintiff under the guise of “public safety”
is arbitrary and capricious.
Moreover, any argument that Plaintiff’s
participation would result in the expenditure
of
scarce
resources
to
monitor
his
participation is little more than a red
herring. Defendant has assigned numerous BOP
staff members to a communications monitoring
center located in the operations center of FCI
Fort Dix. This center is open daily and the
officers assigned there are required to
continuously monitor inmate telephone calls
and TRULINCS messages. This is a monitoring
scheme already in place and Plaintiff’s
participation in TRULINCS would in no way
appreciably impact those officers’ ability to
perform their duties or budget necessary to
man that center.
The exclusion of Plaintiff from participation
in TRULINCS is not rationally related to the
pen[o]logical interest of protecting the
public. Preventing Plaintiff from sending
outgoing correspondence through TRULINCS is
overly
burdensome
and
is
greater
than
necessary to protect the public. This violates
the standard of review governing inmate
correspondence and further shows the arbitrary
nature of Defendant’s denial.
V – Conclusion
In the responses to Plaintiff’s administrative
remedy requests, Defendant does not articulate
a rational reason for denying Plaintiff access
to TRULINCS. At no time does he state how
Plaintiff poses a threat to public safety or
to the safe and orderly running of the
institution. While it may be possible to infer
an explanation from his responses, that is not
5
the purpose of this civil action. Petitioner
is not seeking clarification of Defendant’s
responses, he is seeking acknowledgment that
Defendant actually gave none. Moreover, any
kind of rationalization of the deficient
responses
would
not
satisfactorily
demonstrate how Defendant’s decision is
anything other than arbitrary and capricious.
Indeed,
Defendant’s
“explanation”
is
“implausible in light of the circumstances.”
NVE, Inc., 436 F.3d at 190.
(First Am. Compl., ECF No. 10 at 7-25.)
II.
Sua Sponte Dismissal
“[A] pro se complaint, however inartfully pleaded, must be
held to ‘less stringent standards than formal pleadings drafted by
lawyers.’” Erickson, 551 U.S. at 94 (internal quotation marks
omitted). “Court personnel reviewing pro se pleadings are charged
with the responsibility of deciphering why the submission was
filed, what the litigant is seeking, and what claims she may be
making.” See Higgs v. Atty. Gen. of the U.S., 655 F.3d 333, 33940 (3d Cir. 2011) (quoting Jonathan D. Rosenbloom, Exploring
Methods to Improve Management and Fairness in Pro Se Cases: A Study
of the Pro Se Docket in the Southern District of New York, 30
Fordham Urb. L.J. 305, 308 (2002)).
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility when the
6
plaintiff pleads factual content that allows the court to draw the
reasonable
inference
that
the
defendant
is
liable
for
the
misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 556.) Legal conclusions, together with threadbare recitals
of the elements of a cause of action, do not suffice to state a
claim. Id.
Thus, “a court considering a motion to dismiss can choose to
begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. at
679. “While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Id. If
a complaint can be remedied by an amendment, a district court may
not dismiss the complaint with prejudice but must permit the
amendment. Grayson v. Mayview State Hospital, 293 F.3d 103, 108
(3d Cir. 2002).
II.
DISCUSSION
A.
Equal Protection Claim
“The liberty protected by the Fifth Amendment’s Due Process
Clause contains within it the prohibition against denying to any
person the equal protection of the laws.” U.S. v. Windsor, 570
U.S. 744, 774 (2013). A plaintiff may bring a “class of one” equal
protection claim by alleging she has been intentionally treated
differently from others who are similarly situated, and that there
is no rational basis for the difference in treatment. Village of
7
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The burden is on
the plaintiff to negate “‘any reasonably conceivable state of facts
that could have provided a rational basis for the classification.’”
Board of Trustees of University of Alabama v. Garrett, 531 U.S.
356, 367 (2001) (quoting Heller v. Doe by Doe, 509 U.S. 312, 320
(1993) (quoting FCC v. Beach Communications, Inc., 508 U.S. 307,
313 (1993)).
In
dismissing
Plaintiff’s
original
complaint
without
prejudice, this Court dismissed Plaintiff’s Equal Protection claim
as follows:
There is a rational basis upon which Defendant
treated
Plaintiff
differently
than
the
similarly situated inmates he identified.
Plaintiff sent an email to his girlfriend to
persuade her to allow Plaintiff to have sex
with her ten-year-old sister. This behavior
shows someone who might use TRULINCS to gain
access to a minor through a personal
relationship for his own sexual gratification.
Defendant had a rational basis to deny
Plaintiff TRULINCS access while permitting
access to other sex offenders. See Hoffman v.
Fed. Bureau of Prisons, No. 13-CV-852-GPM,
2013 WL 5529612, at *4 (S.D. Ill. Oct. 7, 2013)
(finding the warden articulated reasons
consistent with the BOP's program statement
for his decision to deny the plaintiff
TRULINCS access.)
(Opinion, ECF No. 5 at 11.)
Plaintiff has not presented any new facts in his First Amended
Complaint that indicate there was no rational basis for the warden
to treat Plaintiff differently from other inmates who committed
8
sex offenses.
Once again, Plaintiff asserts that he cannot use TRULINCS to
commit a crime because TRULINCS is monitored and he cannot access
a minor because he is in prison. Monitoring TRULINCS “imposes costs
on the prison. And those costs increase when the users are likely
to abuse the system because the prison must then scrutinize their
emails more carefully.” Sebolt v. Samuels, 749 F. App'x 458, 460
(7th Cir. 2018) reh'g denied (Feb. 20, 2019). A prisoner could use
TRULINCS to establish a relationship for the purpose of obtaining
access to a minor after release from prison. Prisons have a
legitimate interest in limiting the costs of detecting unlawful
communications between inmates and outsiders. See id. Plaintiff
has not stated a Fifth Amendment equal protection claim.
B.
First Amendment Claim
Plaintiff contends that preventing him from sending outgoing
correspondence
through
TRULINCS
is
overly
burdensome
and
is
greater than necessary to protect the public. The Court construes
this as a First Amendment claim. Whether a restriction on a
prisoner’s
ability
to
send
outgoing
mail
violates
the
First
Amendment is a two-part test: (1) whether the regulation furthers
an important interest or substantial government interest unrelated
to the suppression of expression; and (2) that the regulation is
no greater than necessary for the protection of that interest.
Nasir v. Morgan, 350 F.3d 366, 374 (3d Cir. 2003) (citing Procunier
9
v. Martinez, 416 U.S. 396, 413 (1974)). Here, Plaintiff is not
prohibited from sending any outgoing mail but only from using
TRULINCS to do so electronically. Nonetheless, the Court will apply
the standard of review relevant to First Amendment protection of
outgoing mail.
“‘Prison officials must show that a regulation authorizing
censorship furthers one or more of the substantial government
interests of security, order and rehabilitation.’” Nasir, 350 F.3d
at 374 (quoting Martinez, 416 U.S. at 413.) Specific threats to
security
that
justify
restrictions
on
outgoing
mail
include
escape, ongoing criminal activity, threats, and introduction of
contraband. Id. (citing Thornburgh v. Abbott, 490 U.S. 401, 413
(1989)).
BOP Program Statement 4900.11, §14.9 System Access provides,
in relevant part:
14.9 SYSTEM ACCESS
It is important that staff ensure inmates are
only restricted from using TRULINCS, or
individual TRULINCS services, when absolutely
necessary to protect the safety, security, or
orderly
operation
of
the
correctional
facility, or the protection of the public or
staff.
Due to the "self-service" format TRULINCS
provides, all inmates who are physically
capable of accessing a TRULINCS terminal
should be provided access in all but limited
cases. Public Messaging is the only exception
to this approach, as it involves communication
with persons in the community and the
possibility of continuing criminal or other
10
prohibited activity that may jeopardize the
safety and security of the institution.
a.
Program/Service
Exclusions.
Inmates
excluded from participation under this section
are notified of the specific reason(s) by a
written explanation of the decision, unless
possessing such written information would
threaten the safety of the inmate or other
legitimate
penological
interest(s).
If
prohibited from possessing a copy of the
written explanation, inmates remain entitled
under the Freedom of Information Act (FOIA) to
access this information from their central
files, and must be provided reasonable
opportunities to access and review such
documents.
At
the
inmate's
request,
expense,
preparation
of
an
envelope,
staff
photocopy and mail the documents.
and
may
An inmate's exclusion from participation must
be based on their individual history of
behavior that could jeopardize the legitimate
penological interests listed above. Inmates
must not be excluded from participation based
on
general
categorizations
of
previous
conduct.
( 1) Sex Offenders. Inmates whose offense,
conduct, or other personal history indicates
a propensity to offend through the use of
email or jeopardizes the safety, security,
orderly
operation
of
the
correctional
facility, or the protection of the public or
staff, should be seriously considered for
restriction.
As a method of identifying these inmates,
staff responsible for local sex offender
management should review inmates with SENTRY
CMA Walsh Assignments of Certified, With
Conviction, and No Conviction, to determine if
their participation in the Public Messaging
Service poses a realistic threat. TRULINCS
automatically applies a temporary restriction
11
on inmates' accounts with the above SENTRY CMA
Walsh Assignments. These restrictions may be
over-written when deemed appropriate by staff
responsible for local sex offender management
and approved by the Warden.
Inmates may be permanently restricted from
corresponding
and/or
communicating
with
individuals who are:
Prior child or adult victims of sexual
offenses committed by the inmate.
Children who are being groomed by the inmate
for sexual assault or other predatory behavior
involving children and/or the caregivers of
those children.
Other sexual offenders.
Any other contact with the general public
deemed inappropriate by staff responsible for
local sex offender management due to its
association with the inmate's risk to engage
in sexually offensive behavior.
(First Am. Compl., Ex. B, ECF No. 10 at 55-56.)
The BOP has a substantial government interest in restricting
Public Messaging via TRULINCS “as it involves communication with
persons in the community and the possibility of continuing criminal
or other prohibited activity that may jeopardize the safety and
security of the institution.” BOP Program Statement 4900.11, §4.9.
The threat of ongoing criminal activity is a substantial government
interest
recognized
by
the
Supreme
Court
as
justifying
a
restriction on outgoing prisoner mail. Thornburgh, 490 U.S. at
412.
Turning to the next step of the First Amendment test, the
regulation must be no greater than necessary for the protection of
12
that interest. This is “not a least-restrictive means test[;]”
instead, the restriction must be narrowly-tailored. Nasir, 350
F.3d at 375 (quoting Thornburgh, 490 U.S. at 411.)
BOP Program Statement 4900.11, §4.9 restricts TRULINCS access
to those sex offenders “whose offense, conduct, or other personal
history indicates a propensity to offend through the use of email.”
The staff responsible for identifying such inmates must review the
inmates’ history to determine if the inmates pose a realistic
threat.
Here, the warden reviewed Plaintiff’s history and found a
propensity to offend by using email to arrange travel to engage in
sex with minors, to correspond with a girlfriend to coerce her
into letting Plaintiff engage in sex with her ten-year-old sister
and found that Plaintiff’s offense included possession of child
pornography.
Restricting
TRULINCS
access
to
persons
with
a
propensity to offend through the use of email is no greater a
restriction than necessary to protect the substantial government
interest of protecting the public. See United States v. Crandon,
173 F.3d 122, 127 (3d Cir. 1999) (upholding three-year ban on
Internet use without prior approval as condition of supervised
release where the defendant used the Internet to develop an illegal
sexual
relationship
with
a
young
girl);
United
States
v.
Thielemann, 575 F.3d 265, 278 (3d Cir. 2009) (upholding as special
condition
of
supervised
release
13
a
ten-year
Internet
use
restriction, without prior approval of the U.S. Probation Office,
on a defendant who possessed child pornography and encouraged
another person, through an online chat, to have sexual contact
with a young girl). Plaintiff fails to state a First Amendment
claim.
C.
Administrative Procedure Act Claim
A reviewing court may set aside an agency action if the
agency’s action is found to be “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A));
Douglas
v.
Independent
Living
Center
of
Southern
California, Inc., 565 U.S. 606, 614 (2012) (noting the APA provides
for judicial review of final agency action under the standard
described in 5 U.S.C. § 706(2)(A)). Reviewing courts “must consider
whether the agency ‘examine[d] the relevant data and articulate[d]
a satisfactory explanation for its action,’ while being careful
‘not to substitute [their own] judgment for that of the agency.’”
Christ the King Manor, Inc. v. Sec'y U.S. Dep't of Health and Human
Services, 730 F.3d 291, 305 (3d Cir. 2013) (quoting Motor Vehicle
Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983)). “An agency action may be arbitrary and
capricious ‘if the agency has relied on factors which Congress has
not intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or
14
is so implausible that it could not be ascribed to a difference in
view or the product of agency expertise.’” Christ the King Manor,
Inc., 730 F.3d at 305 (quoting State Farm, 463 U.S. at 43.)
According to BOP Program Statement 4500.11, §14.2:
The Bureau’s authority to operate TRULINCS is
found in 18 U.S.C. 4042, which authorizes the
Bureau to provide for the safekeeping, care,
and subsistence of Federal prisoners. Pursuant
to that authority, the CEO prohibits or
discontinues its operation, or individual
inmate's
participation,
whenever
it
is
determined to jeopardize the safety, security,
or orderly operation of the correctional
facility, or the protection of the public and
staff.
The
BOP’s
operation
of
TRULINCS
does
not
conflict
with
Congressional intent that the BOP provide the safekeeping, care
and subsistence of federal prisoners. See Solan v. Zickefoose, 530
F. App'x 109, 111–12 (3d Cir. 2013) (finding Program Statement
5265.13, the predecessor to the more restrictive Program Statement
4500.11, “entirely consistent with § 4042.”)
Plaintiff states that he is seeking acknowledgment that the
BOP gave him no rational reason for denying him use of TRULINCS.
The
warden
gave
the
following
reasons
for
denying
participation in TRULINCS:
This is in response to your Request for
Administrative Remedy, dated March 7, 2016, in
which you request access to the TRULINCS
electronic messaging system. You allege your
Unit Team improperly applied policy in denying
you access as you do not represent any threat
to the safe operation of the facility or
15
Plaintiff
public safety. A review of your record reveals
you are serving a 294 month aggregate sentence
for Attempted Transportation of Minors with
Intent to Engage in Criminal Sexual Activity,
Attempt to Travel with Intent to Engage in
Illicit Sexual Conduct, and Possession of
Visual Depictions of Child Pornography.
According to Program Statement, 4500.11 Trust
Fund/Deposit Fund Manual, "Inmates whose
offense, conduct, or other personal history
indicates a propensity to offend through the
use of e-mail or jeopardizes the safety,
security,
orderly
operation
of
the
correctional facility, or the protection of
the public or staff, should be seriously
considered for restriction." Further review of
your current offense reveals you communicated
via e-mail with an undercover ICE agent who
was pretending to operate a website offering
international travel with the explicit purpose
of offering sex with minors. During the period
of June 15, 2010 and July 23, 2010, you and
the undercover officer exchanged numerous emails negotiating the terms of your trip to
engage in sexual activity with an eight year
old girl.
Additionally, on May 17, 2004, you were
convicted
of
Attempted
Gross
Sexual
Imposition. Specifically, you were found to
have used e-mail to correspond with a
girlfriend in an attempt to coerce her into
letting you engage in sex with her 10 year old
sister.
(First Am. Compl., Attach A, ECF No. 10 at 33.)
The warden gave reasons for excluding Plaintiff from TRULINCS
participation consistent with the goal of the program statement in
protecting
the
public
from
a
prisoner’s
potential
misuse
of
electronic mail. See Solan, 2013 WL 1007665, at *8 (upholding
decision to ban prisoner from using TRULINCS based on his computer
16
expertise and prior disciplinary action for misuse of a BOP
computer). Therefore, the warden’s denial of Plaintiff’s request
for TRULINCS participation was not arbitrary and capricious under
APA review. Plaintiff failed to state an APA claim.
IV.
CONCLUSION
For the reasons discussed above, Plaintiff fails to state a
claim under the Fifth Amendment equal protection guarantee, the
First Amendment right to freedom of speech and the Administrative
Procedures Act. Because amendment of the First Amended Complaint
is futile, the Court dismisses the First Amended Complaint with
prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b) and 42
U.S.C. § 1997e(c)(1), for failure to state a claim.
DATE: July 30, 2019
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?