United States District Court, S.D. Indiana, Terre Haute Division
ROBERT L. HOLLEMAN, Plaintiff,
DUSHAN ZATECKY individually and in his official capacity as Superintendent of the Pendleton Correctional Facility, HERBERT DUNCAN individually and in his official capacity as Investigations and Intelligence Officer at the Pendleton Correctional Facility, DICK BROWN individually and in his official capacity as Superintendent of the Wabash Valley Correctional Facility, ROB MARSHALL individually and in his official capacity as Investigations and Intelligence Officer at the Wabash Valley Correctional Facility, Defendants.
ENTRY DISMISSING COMPLAINT AND DIRECTING PLAINTIFF TO
JANE MAGNUS-STINSON, JUDGE
Robert Holleman has paid the filing fee. The complaint is now
subject to screening under 28 U.S.C. § 1915A. The Court
must dismiss the complaint if it is frivolous or malicious,
fails to state a claim for relief, or seeks monetary relief
against a defendant who is immune from such relief.
Holleman is an inmate at the Wabash Valley Correctional
Facility (“WVCF”). He names the following
defendants: 1) Dushan Zatecky, Superintendent of Pendleton
Correctional Facility (“PCF”); 2) Herbert Duncan,
Investigations and Intelligence Officer at PCF; 3) Dick
Brown, Superintendent at WVCF; and 4) Rob Marshal,
Investigations and Intelligence Officer at WVCF. The
defendants are sued in their individual and official
capacities. Mr. Holleman alleges that the defendants have
violated and continue to violate his Fourth Amendment rights
by searching and seizing his telephone calls without probable
cause and without a search warrant. He alleges that the
defendants have recorded and listened in on his telephone
calls and kept them for six (6) months or longer in case they
will be useful in any future investigations. He alleges that
all offenders' telephone calls are recorded in this way.
He seeks injunctive relief and compensatory and punitive
Holleman's claims fail to state a claim upon which relief
can be granted as a matter of law. “[A] Fourth
Amendment search occurs when the government violates a
subjective expectation of privacy that society recognizes as
reasonable.” Shell v. United States, 448 F.3d
951, 955 (7th Cir. 2006) (internal quotation omitted).
“To determine reasonableness under the Fourth
Amendment, we balance the degree of the intrusion into [the
individual's] privacy interests against the
government's need for the search.” Id. at
956. “As the Supreme Court has held, [i]n prison,
official surveillance has traditionally been the order of the
day.” United States v. Sababu, 891 F.2d 1308,
1329 (7th Cir. 1989) (internal quotation omitted). Prisoners
have a reduced expectation of privacy, and their telephone
conversations are “not protected by the fourth
amendment.” Id.; see also United States v.
Madoch, 149 F.3d 596, 602 (7th Cir. 1998) (marital
privilege did not apply to taped telephone conversations
between spouse and jail inmate because of the
“well-known need for correctional institutions to
monitor inmate conversations”). Therefore, issues of
probable cause or warrants do not arise in the context of
prisoners' telephone calls. Because Mr. Holleman does not
have a reasonable expectation of privacy in his telephone
calls while he is in prison, his complaint must be dismissed
for failure to state a claim upon which relief can be
plaintiff can plead himself out of court by alleging facts
that show there is no viable claim.” Pugh v.
Tribune Co., 521 F.3d 686, 699 (7th Cir. 2008). For the
above reasons, the complaint fails to state a claim upon
which relief can be granted as a matter of law and is
therefore dismissed pursuant to 28 U.S.C. § 1915A.
plaintiff shall have through November 21, 2016, in which to
show cause why this action should not be dismissed for
failure to state a claim upon which relief can be granted.
Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014,
1022 (7th Cir. 2013) (plaintiffs should be given at least an
opportunity to amend or to respond to an order to show cause
before a case is “tossed out of court without giving
the applicant any timely notice or opportunity to be heard to
clarify, contest, or simply request leave to amend.”).
plaintiff fails to show cause or seek leave to amend, the
action will be dismissed for the reasons set forth in this
Entry without further notice. Failure to show cause or amend
may result in the dismissal of the action without further
notice for the reasons set forth in this action.