United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
Rolling, a prisoner without a lawyer, alleges he was denied
visitation privileges with his minor child due to a prior sex
offense conviction. He seeks injunctive relief so he can
visit with his son. “A document filed pro se is to be
liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and
citations omitted). Nevertheless, pursuant to 28 U.S.C.
§ 1915A, the court must review the merits of a prisoner
complaint and dismiss it if the action is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief.
was convicted on charges of child molestation in 2010, for
which he was sentenced to five years in prison and required
to register as a sex offender. ECF 2 at 2. His sentence also
included a rehabilitation program for sex offenders, which he
completed. Id. In 2016, he was convicted on charges
of aggravated battery and sentenced to ten years in prison,
which he is now serving at Miami Correctional Facility.
he requested visitation privileges with his minor child and
was denied due to his previous sex offense. Id.
Department of Correction policy 02-01-102 places a
“Visitor-Minor Restriction” on offenders who have
been convicted of a sex offense involving a child, even if
that is not the offense for which they are currently
committed. Rolling claims the application of the
prison's policy here violates his constitutional rights,
and he seeks an injunction ordering the defendants to allow
him visitation privileges with his son.
retain “a limited constitutional right to intimate
association, ” and prison officials may violate the
Constitution by “permanently or arbitrarily denying an
inmate visits with family members” without balancing
the prisoner's interests against legitimate penological
objectives. Easterling v. Thurmer, 880 F.3d 319,
322-23 (7th Cir. 2018) (citing Overton v. Bazzetta,
539 U.S. 126 (2003); Turner v. Safley, 482 U.S. 78
(1987)). Thus, “a prisoner-even a sex offender-who
alleges that a permanent ban on visits with his minor
children has no legitimate justification states a valid
constitutional claim.” Id.
determining whether a prison policy is constitutional, courts
must consider four factors: (1) whether a rational connection
exists between the prison policy and a legitimate
governmental interest advanced as its justification; (2)
whether alternative means of exercising the right are
available notwithstanding the policy or regulation; (3) what
effect accommodating the exercise of the right would have on
guards, other prisoners, and prison resources generally; and
(4) whether ready, easy-to-implement alternatives exist that
would accommodate the prisoner's rights.
Overton, 539 U.S. at 132 (citing Turner,
482 U.S. at 89-91, 107).
interest Rolling asserts “is an important one.”
Harris v. Donohue, 175 Fed.App'x 746, 747 (7th
Cir. 2006), cited in Easterling, 880 F.3d at 322-23
(restating the Harris holding, “this time in a
published opinion”). “In the prison context,
courts have observed that visitation may significantly
benefit both the prisoner and his family.” Id.
In Harris, the Seventh Circuit addressed a challenge
nearly identical to Rolling's. It held dismissal at the
screening stage to be premature because “the defendants
were never required to explain the basis for their
no-visitation policy, ” as required for the policy to
be upheld under the Overton and Turner
factors. Id. at 748. The same is true here. Rolling
states a claim for injunctive relief against Commissioner
Robert E. Carter in his official capacity. The remaining
defendants will be dismissed, as it is clear the Commissioner
has the required authority to provide the relief sought, and
it is unnecessary to have more than one official-capacity
Rolling seeks an “immediate injunction” against
the policy. ECF 4 at 4. This request is construed as a motion
for a preliminary injunction. To obtain a preliminary
injunction, the moving party must show (1) he will suffer
irreparable harm before the final resolution of his claims;
(2) available remedies at law are inadequate; and (3) he has
a likelihood of success on the merits. See BBL, Inc. v.
City of Angola, 809 F.3d 317, 323-24 (7th Cir. 2015).
The court then “weighs the competing harms to the
parties if an injunction is granted or denied and also
considers the public interest.” Korte v.
Sebelius, 735 F.3d 654, 665 (7th Cir. 2013). As
discussed above, Rolling's likelihood of success on the
merits depends on whether the visitation policy may be upheld
under the Turner factors. Thus, the Department must
put forth its reasons for the policy prior to a disposition
of this motion.
these reasons, the court:
GRANTS Bryson Rolling leave to proceed against Robert E.
Carter in his official capacity for injunctive relief for
denying him visitation with his minor child pursuant to IDOC
DISMISSES Defendants William Wilson, Riggle, and Sheron Hawk;
DIRECTS the clerk and the United States Marshals Service, as
required by 28 U.S.C. § 1915(d), to issue and serve
process on Robert E. Carter with a copy of this order and the
Complaint (ECF 2);
ORDERS, pursuant to 42 U.S.C. § 1997e(g)(2), that Robert
E. Carter respond, as provided for in the Federal Rules of
Civil Procedure and N.D. Ind. L.R. 10-1(b), only to the
claims for which the plaintiff has been granted leave to
proceed in this screening order; and
ORDERS Robert E. Carter to separately respond to
Plaintiff's motion for a preliminary injunction when ...