WALTMAN v. ORTIZ

Filing 5

OPINION. Signed by Judge Renee Marie Bumb on 1/22/19. (dd, )

NOT FOR PUBLICATION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
:
________________________
:
Plaintiff John Doe is a prisoner incarcerated in the Federal
Correctional Institution (“FCI”) in Fort Dix, New Jersey. 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 terminated this action, subject to reopening, based on
Plaintiff’s deficient IFP application. (Order, ECF No. 3.)
Plaintiff has reapplied to proceed in forma pauperis, and he
established his financial eligibility based on available assets of
$79.38 in his inmate trust account. (IFP App., ECF No. 4.)
When a prisoner is permitted to proceed without prepayment of
the filing fee or when the prisoner pays the filing fee for a civil
action and seeks redress from a governmental entity, officer or

employee of a governmental entity, 28 U.S.C. §§ 1915(e)(2)(B);
1915A(b) and 42 U.S.C. § 1997e(c)(1) require courts to review the
complaint and sua sponte dismiss any claims that are (1) frivolous
or malicious; (2) fail to state a claim on which relief may be
granted; or (3) seek monetary relief against a defendant who is
immune from such relief. For the reasons discussed below, the Court
will dismiss the complaint without prejudice for failure to state
a claim.
I.

Sua Sponte Dismissal

Courts must liberally construe pleadings that are filed pro
se. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). Thus, “a pro se complaint,
however

inartfully

standards

than

pleaded,

formal

must

pleadings

be

held

to

drafted

by

‘less

stringent

lawyers.’”

Id.

(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, 339-40 (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)).
A pleading must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R.
2 

Civ. P. 8(a)(2). “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 plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (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.

Plaintiff’s Request to Proceed Under a Pseudonym

Plaintiff requests to proceed under a pseudonym because this
action contains information about his offense of conviction, a sex
offense. (Compl., Attach., ECF No. 1-6.) Plaintiff is a prisoner
3 

in the general population at FCI Fort Dix and he fears violence by
other inmates if his identity as a sex offender becomes known.
(Compl., Attach., ECF No. 1-6.)
Federal Rule of Civil Procedure 10(a) requires the caption of
a complaint to name all parties. To proceed under a pseudonym, a
Plaintiff must establish (1) a fear of severe harm and (2) that
the fear of harm is reasonable. Doe v. Megless, 654 F.3d 404, 408
(3d Cir. 2011). Plaintiff acknowledges that he must make his
identity known to Defendant.
The factors favoring anonymity as an exception to Rule 10(a)
include:
1. [T]he extent to which the identity of the
litigant has been kept confidential;
2. [T]he bases upon which disclosure is feared
or
sought
to
be
avoided,
and
the
substantiality of these bases;
3. [T]he magnitude of the public interest in
maintaining
the
confidentiality
of
the
litigant's identity;
4. [W]hether, because of the purely legal
nature of the issues presented or otherwise,
there is an atypically weak public interest in
knowing the litigant's identities;
5. [T]he undesirability of an outcome adverse
to the pseudonymous party and attributable to
[the party's] refusal to pursue the case at
the price of being publicly identified; and
6. [W]hether
pseudonymously
motives.

the party seeking to sue
has
illegitimate
ulterior

4 

. . .
The factors
include:

militating

against

anonymity

1. [T]he universal level of public interest in
access to the identities of litigants;
2. [W]hether, because of the subject matter of
this litigation, the status of the litigant as
a public figure, or otherwise, there is a
particularly strong interest in knowing the
litigant's identities, beyond the public's
interest which is normally obtained; and
3. [W]hether the opposition to pseudonym by
counsel, the public, or the press is
illegitimately motivated.

Doe v. Oshrin, 299 F.R.D. 100, 103 (D.N.J. 2014) (quoting Megless,
654 F.3d at 408-09 (3d Cir. 2011).
Plaintiff has requested that the Court keep his identity
confidential from the outset of this litigation, although his name
appears in the caption of the initial documents. Based on common
knowledge that sex offenders are targets for violence in prison,
Plaintiff reasonably fears violence if he is identified as a sex
offender by other prisoners in FCI Fort Dix. This matter raises
legal rather than factual issues, therefore, there is only a weak
public interest in knowing Plaintiff’s identity. Plaintiff does
not appear to have an ulterior motive in anonymity. The only factor
militating against anonymity is the general public interest in the
parties to a lawsuit. Plaintiff has met the burden to proceed under

5 

the pseudonym John Doe in this action.1 See e.g. Doe v. Heil, Civ.
No. 8-cv-02342-WYD-CBS, 2008 WL 4889550, at *3 (D. Colo. Nov. 13,
2008) (citing cases acknowledging that a sex offender in the
general prison population may face heightened abuse by other
inmates).
B.

The Complaint

Plaintiff named Warden David Ortiz, in his official capacity,
as the sole defendant in this action. Plaintiff seeks solely
declaratory

and

injunctive

relief

under

the

Administrative

Procedures Act and the Equal Protection Clause.
Plaintiff alleges the following facts in support of his
claims. Sentenced on February 16, 2012 to a 294-month term of
imprisonment

for

pornography

related

offenses,

Plaintiff

is

currently incarcerated in FCI Fort Dix. (Compl., ECF No. at 1.)
Plaintiff sent a request to his Unit Team on February 23, 2016,
asking for permission to use the Bureau of Prison’s public access
messaging service, TRULINCS. (Id. at 2.) His request was denied,
as were his appeals to the warden, the Bureau of Prisons (“BOP”)
Regional Office, and the BOP Central Office. (Id.)

1

Although Plaintiff requested to proceed under a pseudonym in
his first filing in this Court, his name appears in the caption of
the Complaint. The Court will seal the Complaint and supporting
documents as well as this Court’s initial order denying IFP in
this matter, and Plaintiff’s second IFP application. The Court
will order the parties to use Plaintiff’s pseudonym in future
documents filed herein but the Court does not intend to seal new
filings.
6 

TRULINCS is an email communication system that the BOP has
permitted inmates to use since 2005. (Compl., ECF No. 1 at 4.) The
self-contained system is used exclusively by the BOP. (Id. at 5.)
To use the system, an inmate enters the name, address, telephone
number and email address of the recipient. (Id.) The information
must be verified by BOP staff before an invitation to participate
is

sent

to

the

recipient.

(Id.)

The

invitation

informs

the

recipient that the inmate wishes to add the recipient as an email
contact, provides the rules of the TRULINCS system, and directs
the recipient to the TRULINCS website to accept the invitation and
agree to receive email from the recipient. (Id.)
TRULINCS messages do not operate like regular email. (Id.)
The recipient receives an email stating that a message is waiting,
and the recipient must log in to the TRULINCS system to read and
respond to the message. (Id.) Every message sent to and from the
inmate is recorded and monitored. (Id.) No message ever leaves the
TRULINCS system. (Id.)
BOP Program Statement 4500.11, §14.9 states, “inmates are
only restricted from using TRULINCS . . . when absolutely necessary
to protect the safety, security, or orderly operation of the
correctional
staff.”2

institution

or

the

protection

of

the

public

As to sex offenders, the Program Statement further

2

BOP Program Statements are available at
https://www.bop.gov/PublicInfo/execute/policysearch?todo=query
7 

or

provides “inmates whose offense conduct, or other personal history
indicates a propensity to offend operation of the correctional
facility, or the protection of the public or staff, should be
seriously considered for restriction.” (Id.) The Program Statement
directs staff to identify inmates whose “participation in the
public messaging service poses a realistic threat.” (Id.)
When Plaintiff first requested access to TRULINCS from his
Unit Team, the response was a denial “per BOP policy.” (Id. at 6.)
Plaintiff’s appeal to the warden, the sole defendant in this
action, was denied based on Plaintiff’s offense conduct, described
by the warden as follows:
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.  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 e-mails 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.
8 

(Compl., Ex. A, ECF No. 1-4 at 6.)
Plaintiff appealed the warden’s decision to the Regional
Office. (Compl., Ex. A, ECF No. 1-4 at 7-9.) The Regional Office
affirmed

the

warden’s

decision,

stating

“sound

correctional

judgment requires your access to electronic messaging be limited
to ensure the safe operation of the institution and to ensure
public safety.” (Id. at 9.) The Central Office affirmed the
Regional Office because “there were aggravating factors in your
offense conduct, which are sufficient to limit your TRULINCS
access.” (Id. at 12.)
B.

Equal Protection Claim Under Bivens

Plaintiff argues he has been treated differently from other
sex offenders at Fort Dix who have been granted access to TRULINCS.
(Compl., ECF No. 1 at 11.) He alleges the following:
Numerous other sex offender inmates at that
facility have been granted access to BOP email. Some of those inmates committed arguably
"worse" crimes than Plaintiff, including
"hands-on" or "contact" offenses, and some who
also used the internet and e-mail to commit
their offense. (NOTE: Plaintiff chooses not to
provide the actual names of those offenders in
this initial filing for concerns over privacy
and possible retaliation by the BOP against
them. If the Court feels those names are
necessary, he is willing to supplement this
filing under seal if so directed.) For
instance, one inmate, convicted in the
District
of
Massachusetts,
amassed
a
collection
of
over
4
million
illegal
pornographic images, actively traded child
pornography via "peer to peer" networks and
9 

over e-mail, and produced child pornography
which showed him personally abusing an infant.
Yet Defendants granted this inmate access to
TRULINCS and BOP e-mail. Another inmate,
convicted in the Northern District of Alabama,
communicated with an undercover agent via email, believing he was setting up a hotel-room
sexual encounter with a minor female. He
mailed partial payment to the undercover agent
and
crossed
state
lines
believing
the
encounter would take place. Yet Defendants
granted that inmate access to TRULINCS and BOP
e-mail. Another inmate at FCI-Fort Dix was
convicted
in
the
Western
District
of
Pennsylvania of possession and distribution of
child pornography. He is a second time felon
and was originally denied access to TRULINCS.
When he appealed that decision, however,
Defendant (the same who denied Plaintiff in
this matter) reversed that denial and granted
him access to BOP e-mail. He still has access
at the time of this filing.
Defendant is unable to adequately articulate
any valid distinction between these similarly
situated inmates and Plaintiff. All used email in the commission of their crimes. Two of
the 3 were sentenced to at least 15 years
incarceration. (The Pennsylvania inmate was
sentenced to 8 years). All are members of the
"general population" of FCI-Fort Dix. But of
the four, Plaintiff is the only one who has
been denied access to BOP e-mail.
(Compl., ECF No. 1 at 11-12.)
“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
10 

is no rational basis for the difference in treatment. Village of
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 v. Garrett, 531 U.S. 356, 367 (2001).
There
Plaintiff

is

a

rational

differently

than

basis
the

upon

which

similarly

Defendant

situated

treated

inmates

he

identified. As the Warden explained, 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. Thus, 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.)
C.

Administrative Procedure Act Claim

Plaintiff contends the BOP’s final agency decision to deny
him access to TRULINCS was arbitrary and capricious because the
BOP did not explain how Plaintiff’s offense conduct jeopardizes
public safety, but rather excluded Plaintiff from TRULINCS based
on “generalized categories of previous conduct” in contravention
11 

of BOP Program Statement 4500.11. (Compl., ECF No. 1 at 7.) The
gravamen of Plaintiff’s argument is that Defendant did not explain
how his use of TRULINCS would jeopardize the orderly operation of
the facility or the protection of the public because the TRULINCS
system is self-contained and its use is fully monitored. (Id. at
8.)
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 & Human
Servs., 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
12 

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.)
Here, the warden articulated Plaintiff’s specific offense
conduct that posed a particular risk that he might use email to
gain access to minors for his own sexual gratification. The warden
did

not,

as

Plaintiff

suggests,

categorically

deny

Plaintiff

access because he was convicted of a sex offense, regardless of
the individual nature of the crime.
Although TRULINCS is self-contained and emails are monitored
by staff, human error may occur and prisoners with access to
electronic messaging can pose a threat to public safety. Plaintiff
may pose a greater threat to the public than other sex offenders
because he used his personal relationship with his girlfriend to
try to gain access to a minor. A prisoner’s close relations are
the types of persons likely to receive messages from the prisoner
via TRULINCS. Therefore, the warden’s decision to deny Plaintiff
access to TRULINCS pursuant to BOP Program Statement 4500.11 was
not arbitrary, capricious, an abuse of discretion or otherwise not
in accordance with law. See Hoffman, 2013 WL 5529612, at *3
(allowing inmates to use TRULINCS involves the use of prison
resources to screen or monitor electronic communications in order
to ensure that safety and security concerns are not jeopardized);
see also Solan v. Zickefoose,  530 F. App'x 109, 111–12 (3d Cir.
13 

2013) (BOP Program Statement 4500.11 is entirely consistent with
the enabling statute, 18 U.S.C. § 4042(a)(2), which authorizes the
BOP to “provide for the safekeeping, care, and subsistence” of
Federal prisoners.)
IV.

CONCLUSION
For the reasons discussed above, Plaintiff fails to state a

claim under the Fifth Amendment equal protection guarantee or the
Administrative Procedures Act. Although it is unlikely Plaintiff
can allege additional facts to state a valid claim, the Court will
dismiss the Complaint without prejudice and permit Plaintiff an
opportunity to amend.

DATE: January 22, 2019
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

14