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Sebolt v. Lariva

United States District Court, S.D. Indiana, Terre Haute Division

May 23, 2017

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

          ENTRY DISMISSING AMENDED COMPLAINT AND DIRECTING ENTRY OF FINAL JUDGMENT

          Hon. William T. Lawrence, Judge

         I. Standard of Review

         Because the plaintiff is a “prisoner” as defined by 28 U.S.C. § 1915(h), this Court has an obligation under 28 U.S.C. § 1915A(b) to screen his 58-page amended complaint. Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss the amended 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. In determining whether the amended complaint states a claim, the Court applies the same standard as when addressing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal,

[the] complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. 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.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se complaints such as that filed by the plaintiff are construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008). In screening the amended complaint, this Court has the benefit of considering the parties' fully briefed motion to dismiss the original complaint which was superseded by the filing of the amended complaint. As well as, the parties' briefing on the futility of the amended complaint. See dkts. 30 and 33.

         II. Factual Background and Allegations

          In screening this action, this Court has taken judicial notice of the plaintiff's criminal history and Bureau of Prison (“BOP”) Program Statement 4500.11. See Fed.R.Evid. 201; Opoka v. INS, 94 F.3d 392, 394 (7th Cir. 1996) (federal courts can take judicial notice of the decisions of federal and non-federal courts). BOP Program Statement 4500.11 (Trust Fund/Deposit Fund Manual) at Chapter 14, (available at: https://www.bop.gov/PublicInfo/execute/policysearch#, last visited May 22, 2017) (relevant portion attached to this Entry) (hereinafter referred to as “PS 4500.11”) is properly considered because it is authentic and central to the plaintiff's claim.[1] See Hecker v. Deere & Co., 556 F.3d 575, 582 (7th Cir. 2009) (allowing consideration of agreements not attached to the pleadings in considering motion to dismiss and citing cases).

         Sebolt's Criminal History

         In 2004, plaintiff Philip Sebolt was convicted in the Northern District of Illinois for using his computer to commit various federal crimes involving child pornography. United States v. Sebolt, 460 F.3d 910 (7th Cir. 2006). Specifically, Sebolt used his computer server to share and solicit child pornography, namely pornography involving very young and infant children. Id. at 913-14. Sebolt was sentenced to 360 months' imprisonment. Id. at 914.

         In March of 2012, while incarcerated at the Federal Correctional Center - Petersburg, Virginia, Sebolt was charged with advertising child pornography because he created a “notice or advertisement” seeking to purchase child pornography, in violation of 18 U.S.C. § 2251(d). United States v. Sebolt, 554 Fed.Appx. 200 (4th Cir. 2014). The evidence introduced at Sebolt's bench trial showed that he had for several years engaged in an elaborate scheme to obtain nude photographs of children. He first obtained books with photographic illustrations of children from around the world. He then contacted women in Sri Lanka and Ethiopia using a “Christmas card” with a secret compartment through which he would pay them money to send him explicit photos of young women. Sebolt successfully obtained a card containing a photograph of a nude female toddler in a sexually suggestive pose hidden inside a secret compartment. Id. at 202-03. Sebolt used these photos to create a handwritten flyer seeking, “in graphic terms, pictures of nude, prepubescent children posing in various positions.” Id. at 202. The flyer offered various sums of money for the pictures depending on the pose or sexual act depicted, and also included photographs of nude children. Id. Based on this conviction, Sebolt has now been sentenced to life in prison. United States v. Sebolt, 598 Fed.Appx. 159 (7th Cir. 2015)(upholding life sentence following prior remand for resentencing).

         Communication Management Unit

         Sebolt was transferred to the Federal Correctional Institution in Terre Haute, Indiana, (“FCI - Terre Haute”) in April 2013. (Am. Compl. dkt 35 at ¶ 31.) Upon his arrival at FCI-Terre Haute, Sebolt was assigned to the Communications Management Unit (“CMU”) which is a housing unit environment that enables staff to more effectively monitor communication between inmates in the CMU and persons in the community. The volume, frequency, and methods of CMU inmate contact with persons in the community may be limited as necessary to protect the public and ensure the orderly operation of the institution. See Am. Compl. at ¶¶ 77-81 (describing CMU).

         Despite their placement, inmates placed in a CMU have a variety of means of communication available. CMU placement has no effect on the regulations, policy, or general practice or procedures regarding the receipt and distribution of incoming publications. Am. Compl. at ¶ 132. Inmates on the CMU unit are able to send and receive general written correspondence (although there is often a delay while the materials are reviewed by staff for security reasons). Id. at ¶¶ 141-142. Attorney mail is considered privileged and may be sent and received by inmates in the CMU. Id. at ¶ 143. Additionally, inmates on the CMU unit have access to the inmate telephone system to make two 15-minute monitored phone calls once a week. Id. at ¶ 149 (these privileges may be further restricted by the Warden). Unmonitored (privileged) attorney phone calls are allowed providing that confidential correspondence, visiting, or monitored telephone use is not adequate. Id. at ¶ 151. Finally, social visits are permitted. Id. at ¶ 155.

         TRULINCS System

         The Trust Fund Limited Inmate Computer System (“TRULINCS”) is a computer system through which inmates can send and receive electronic mail. See PS 4500.11; see also Am. Compl. ¶¶ 90-127 (describing system). TRULINCS allows inmates to email with family and friends who are listed on the inmate's electronic contact list. TRULINCS email access is subject to individual inmate approval, and each proposed contact must give their permission to communicate with the inmate. BOP officials regulate inmates' TRULINCS usage, and inmates are not allowed to access the internet. PS 4500.11 states that the use of TRULINCS is a privilege and that the BOP has absolute discretion in determining whether to limit or deny the use of TRULINCS by an inmate.

         Title 28, United States Code § 4042, gives the BOP the authority to implement and operate TRULINCS. The warden may limit or deny access to individual inmates at any time or as part of classification procedures. An inmate's exclusion from the TRULINCS system must be based on the inmate's individual history of behavior and not on a general categorization. (See PS 4500.11 at 14.9.) As for sex offenders, the BOP states that an inmate “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.” (Id. at 14.9(a)(1).)

         Prior to Sebolt's transfer to FCI-Terre Haute he was incarcerated at the Federal Correctional Institution in Hopewell, Virginia. The TRULINCS system was activated in October 2010. Sebolt was initially denied participation in TRULINCS. On February 15, 2011, however, Sebolt achieved a favorable outcome during the administrative remedy process and was granted access to TRULINCS. Unfortunately for Sebolt, two days later he was found guilty of an incident report and sanctioned with the loss of Electronic Messaging privileges for one year. Am. Compl. at ¶¶ 82-89. On January 25, 2012, just weeks prior to regaining his ...


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