RUSSEL N. GATCH, #XXXXX-XXX, Plaintiff,
JEFFREY S. WALTON and ROBIN V. BRYSON, Defendants.
MEMORANDUM AND ORDER
MICHAEL J. REAGAN, District Judge.
Plaintiff, an inmate in the United States Penitentiary at Marion ("Marion"), brings this action for alleged violations of his constitutional rights by persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Plaintiff is serving a 240-month sentence for Attempted Enticement of a Person Under the Age of 18 to Engage in Criminal Sexual Activity, in violation of 18 U.S.C. § 2422(b). See Gatch v. United States of America, Case No. 09-cv-770 (motion pursuant to 28 U.S.C. § 2255) (E.D. Tex., Doc. 20). The "criminal sexual activity" referenced by the indictment consisted of using a computer with access to the Internet in an attempt to violate Texas Penal Code § 22.021, Aggravated Sexual Assault of a Child, and Texas Penal Code § 21.11, Indecency with a Child (Doc. 1 in criminal case, No. 06-cr-167 (E.D. Tex.)).
Plaintiff brings this action seeking an order to require the Federal Bureau of Prisons ("BOP") to allow him to use the prison's electronic public messaging service ("TRULINCS"). Access to this method of correspondence with persons outside the prison is generally available to federal prisoners. However, Defendant Walton (Marion Warden) has prohibited Plaintiff from using this system based on his offense conduct (Doc. 1, p. 2). Plaintiff asserts that Defendant Walton's decision to deny him this privilege was "arbitrary and capricious, " when other inmates with similar conduct are allowed to use electronic messaging. Id. In addition, he protests the decision as discriminatory and a violation of his due process rights (Doc. 1, pp. 5, 8, 10).
In the Administrative Remedy documents attached to the complaint, Plaintiff points out that he has never had a disciplinary sanction that would justify the denial of electronic messaging privileges (Doc. 1, p. 4). He further argues that there is no chance for him to abuse the electronic mail system to contact the "victim" of his offense, who was in fact an undercover law enforcement officer and not a minor (Doc. 1, p. 5).
Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from an immune defendant. After fully considering the allegations in Plaintiff's complaint, the Court concludes that Plaintiff has failed to state a cognizable claim for violation of his constitutional rights. Therefore, this action is subject to summary dismissal.
A. Program Statement Number P5265.13
Defendant Walton's response to Plaintiff's Administrative Remedy asking for access to the TRULINCS program (Doc. 1, p. 6) references BOP Program Statement Number P5265.13, which governs the Trust Fund Limited Inmate Computer System (TRULINCS) - Electronic Messaging. This policy states, in pertinent part, "Use of the TRULINCS is a privilege; therefore, the Warden or an authorized representative may limit or deny the privilege of a particular inmate." PS P5265.13, § 2, p. 2. Section 3 governs "TRULINCS Restrictions, " and provides that if an inmate is excluded from the program, he must (with certain exceptions not relevant here) be notified in writing of the specific reason for his exclusion. PS P5265.13, § 3, p. 3. Further, "An inmate's exclusion from program participation must be based on his/her individual history of behavior that could jeopardize the legitimate penological interests listed above. Inmates must not be excluded from program participation based on general categorizations of previous conduct." PS P5265.13, § 3a, p. 3. Examples of personal history which would justify exclusion include "soliciting minors for sexual activity, or possession/distribution of child pornography through the Internet or other means, " or "using computers/email/Internet or other communication methods as a conduit for committing illegal activities[.]" Id. Inmates convicted of sex offenses are not categorically excluded from participation. As Defendant Walton described the guidelines, "Only inmates whose offense conduct or personal histories include using electronic messaging to solicit or accomplish offensive conduct with a victim should be restricted" (Doc. 1, p. 6).
Under this policy and guidelines, it appears that Defendant Walton's denial of Plaintiff's request to participate in TRULINCS was not arbitrary or capricious, but was based on the above policy and on Plaintiff's own personal history of "attempt[ing] to entice and/or solicit a minor, by exchanging sexually explicit pictures of [his] penis and by arranging a meeting" over the internet (Doc. 1, p. 6). The policy and guidelines quoted by Defendant Walton give him discretion to restrict Plaintiff from using TRULINCS based on this offense conduct. More to the point, not every denial of a "privilege" (such as access to TRULINCS) amounts to a constitutional violation.
B. Rights to Association and Communication
Prison inmates retain certain First Amendment rights during their incarceration, however, reasonable restrictions on those rights have withstood constitutional scrutiny. As the Supreme Court has observed:
The very object of imprisonment is confinement. Many of the liberties and privileges enjoyed by other citizens must be surrendered by the prisoner.... [citations omitted]. And, as our cases have established, freedom of association is among the rights least compatible with incarceration. [citations omitted]. Some curtailment of that freedom must be expected in the prison context.
Overton v. Bazzetta, 539 U.S. 126, 131 (2003) (restrictions on inmates' visitors were rationally related to legitimate penological objectives and did not violate the Constitution).
The ability of prisoners to communicate with outsiders through the U.S. mail enjoys substantial protection. See Zimmerman v. Tribble, 226 F.3d 568, 572 (7th Cir. 2000) (First Amendment "applies to communications between an inmate and an outsider"). Thus, prisoners have a First Amendment right both to send and receive mail in communication with private individuals outside prison, as well as to correspond with the courts and attorneys. Rowe v. ...