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dismissing where plaintiff did not "present any facts in support of the intent element"
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3:03-CV-2965-G.
May 10, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is an action brought by a federal inmate against his sentencing judge and Bureau of Prison (BOP) officials in their individual capacities pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Parties: Plaintiff, I Stephan Bloch, is a federal inmate presently incarcerated at the Federal Correction Institution (FCI) in Texarkana, Texas. Defendants are U.S. District Judge Simeon T. Lake, III, National Appeal Administrator for the BOP Harrell Watts, BOP Regional Director Ronald G. Thompson, BOP Regional Counsel Michael D. Hood, Warden M. Morrison, and Unit Manager at FCI Beaumont R.A. Smith. The court has not issued process in this case. However, on January 5, 2004, the Magistrate Judge issued a questionnaire to Plaintiff, who filed his answers on March 4, 2004. Statement of Case: The complaint alleges that in July 2002 Defendants reimposed the requirement that Plaintiff make restitution payments under the Inmate Financial Responsibility Program (IFRP). Plaintiff alleges enforcement of IFRP was re-instated in violation of his due process rights and in retaliation for filing an action under the Federal Tort Claims Act (FTCA) in February 2002. He accuses Defendants of making false statements and creating false documents to justify the resumption of restitution payments under IFRP. He seeks monetary, declaratory and injunctive relief.
Plaintiff sues all Defendants in their individual capacity, except for Defendant Thompson who is being sued in both his individual and official capacities. (Complaint at p. 2, ¶ 10). Claims for money damages against individual federal employees in an official capacity based upon allegations of constitutional violations are barred because they are considered suits against the United States which has not waived its sovereign immunity for such claims. See Kentucky v. Graham, 473 U.S. 159, 165-67 (1985). As such, any claims against Thompson in his official capacity as employee or agent of the BOP must be dismissed for want of jurisdiction. See Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002) (noting that a Bivens action against federal agents acting in their official capacities is properly dismissed); see also FDIC v. Meyer, 510 U.S. 471, 475 (1994) (holding that "[s]overeign immunity is jurisdictional in nature"); Serrano v. Addy, 2004 WL 691203, *4, 1:03cv46-C (N.D. Tex., 2004) (monetary claim against individual federal defendants in official capacity must be dismissed for lack of jurisdiction);Campbell v. Martinez, 2003 WL 22410576, *2, 1:03cv46-C (N.D. Tex., 2003) (same).
The allegations on which Plaintiff's complaint, as supplemented by the answers to the questionnaire, is predicated are as follows:
Following his plea of not guilty, a jury convicted Plaintiff and his co-defendants of conspiracy to defraud, bank and wire fraud, misapplication of bank funds, and domestic and international money laundering. On August 29, 1996, Plaintiff was sentenced to 121 months imprisonment and restitution in the amount of $9,973,005, jointly and severally payable by Plaintiff and two of his co-defendants. U.S.A. v. Cihak, et al., No. 96-20862, slip op. at 2 (5th Cir. Mar. 13, 1998) (unpublished).
In November 1996, BOP's personnel demanded that Plaintiff sign a "voluntary" IFRP contract or suffer punitive consequences. (Complaint at 1). Beginning on March 15, 2000, Plaintiff began to challenge BOP's authority "to set a payment schedule on . . . [his] restitution". (Id. at 3). On April 13, 2000, in response to the filing of a BP-9, Warden Tombone "exempted [Plaintiff] from participating in [I]FRP with regard to . . . [his] restitution obligation, pending clarification or modification of the restitution order by . . . [the] sentencing court," observing that "the Fifth Circuit ha[d] . . . concluded that a sentencing court may not delegate the scheduling of fine and restitution payments to other entities." (Response to Request for Administrative Remedy #208713-FI, third attachment to Plaintiff's answers to the magistrate judge's questionnaire).
Although the Warden's response did not cite to any specific Fifth Circuit case, it is possible that the Warden was relying onUnited States v. Albro, 32 f.3d 173 (5th Cir. 1994), which is discussed below.
The BOP Regional and Central Offices confirmed the granting of the temporary exemption from IFRP in response to Plaintiff's BP-10 and BP-11. (Complaint at 3). The Regional Office allegedly informed Plaintiff that BOP staff was "in process of contacting the Sentencing Court on the specifics of plaintiff's obligation to make payments on restitution. (Id.).
Following nearly two years of exemption from IFRP, Plaintiff filed a claim on February 21, 2002, under the Federal Tort Claims Act (FTCA) seeking the "return of illegally collected IFRP Funds." (Complaint at 4). Within four and one-half months of filing his FTCA claim, Plaintiff alleges Defendant Hood informed him that the previously collected IFRP payments would not be returned, and that the sentencing court had decided to resume his IFRP payments. (Id.). On August 4, 2002, Plaintiff signed under duress a new IFRP contract to avoid punitive consequences. (Id.). He, thereafter, filed a Bivens action in the Eastern District of Texas against BOP Regional Counsel Michael D. Hood and BOP Paralegal Tina C. Hauck, challenging the resumption of IFRP payments as retaliatory in nature. That action, however, was dismissed for failure to exhaust administrative remedies. See Bloch v. Hood, et al., 1:02cv573 (E.D. Tex. Sept. 30, 2003). Thereafter, Plaintiff began anew to exhaust his administrative remedies. (See Attachments to Answer to magistrate judge's questionnaire filed on March 4, 2004). On April 4, 2003, within a week of the denial of his BP-11, the Fifth Circuit affirmed the dismissal of Plaintiff's prior Bivens action. Plaintiff subsequently filed this complaint on December 12, 2003.
Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B).
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
The BOP enacted the Inmate Financial Responsibility Program (IFRP) to assist inmates in "meet[ing] his or her legitimate financial obligations." 28 C.F.R. § 545.10. The IFRP applies to all inmates in federal facilities except for study and observation cases, pretrial detainees, and inmates in holdover status pending designation. Id. IFRP procedures require staff members to review an inmate's financial obligations, which include special assessments and court ordered restitution, and create a financial plan after reviewing the Presentence Report, Judgement and Commitment Orders, and any other available documents. 28 C.F.R. § 545.11(a). Payments under IFRP "may be made from institution resources or non-institution (community) resources." 28 C.F.R. § 545.11(b).
The decision as to whether an inmate participates in the IFRP is made by the BOP. 28 C.F.R. § 545.11(c). In addition, failure to comply with the IFRP often results in the loss of prison privileges and incentives including parole, furloughs, performance or vacation pay, outside work details, UNICOR work privileges, special purchase entitlement, community-based programs, and loss of housing status whereby the inmate will be quartered in the lowest status prison housing. 28 C.F.R. § 545.11(d).
Plaintiff does not complain the BOP has taken any punitive measures against him, only that the resumption of IFRP payments was unauthorized.
Plaintiff alleges the Defendants, as BOP officials, lack the authority to set a repayment schedule for his court ordered restitution. He relies on United States v. Albro, 32 F.3d 173, 174 (5th Cir. 1994), United States v. Mancuso, 444 F.2d 691, 695 (5th Cir. 1971), United States v. Johnson, 48 F.3d 806, 808 (4th Cir. 1995); and United States v. Ahmad, 2 F.3d 245, 249 (7th Cir. 1993). (See Answer to Question 3). These cases are distinguishable. It is significant to note that none of them dealt with enforcement of IFRP. All four cases stand for the proposition that a district court cannot delegate a judicial function, such as the timing and amounts of restitution payments or the setting of a payment schedule for court imposed special assessments, to a non judicial entity such as a probation officer. See Albro, 32 F.3d at 174 (unauthorized delegation of authority to determine restitution payment schedule from Article III judicial officer to non-Article III official affected substantial rights of defendant and constituted plain error);see also Johnson, 43 F.3d at 808 (district court lacked authority to delegate to defendant's probation officer determination of exact amount of restitution, within total range of restitution and with minimum monthly installment, without retaining ultimate authority over decision); Ahmad, 2 F.3d at 249 (holding that the sentencing judge must decide how much a defendant owes and the extent to which payment may be deferred); Mancuso, 444 F.2d at 695 ("the amounts to be paid and the manner of payment should be recited in the [sentencing] order, rather than delegating these details to the probation officer").
In this case, however, Defendants did not attempt to set a repayment schedule for Plaintiff's court-ordered restitution. The sentencing court ordered him to pay $9,973,005 in restitution, "due in full immediately." (See Response to Administrative Remedy Appeal No. 285069-A1 (also known as BP-11), dated March 26, 2003, attached to Plaintiff's answer to the questionnaire). Once the restitution was set by the sentencing court, Defendants merely attempted to collect it. United States v. McGlothlin, 249 F.3d 783, 785 (8th Cir. 2001) (collecting cases upholding calculation of a defendant's ability to pay a statutory imposed obligation based on defendant's likely prison earnings through IFRP); United States v. Trigg, 119 F.3d 493, 500 (7th Cir. 1997) (holding that sentencing court did not impermissibly delegate timing of restitution payments to probation department by ordering immediate payment).
The district court is given the authority in sentencing to order, in addition to any other penalty authorized, the payment of restitution to the victim. 18 U.S.C. § 3556 3663. In ordering restitution, the court is authorized to require "a single, lump-sum payment, partial payments at specified intervals, in-kind payments, or a combination of payments at specified intervals and in-kind payments." 18 U.S.C. § 3664(f)(3)(A). If the court does not specify the term of payment or allow payment in installments, the restitution is payable "immediately. 18 U.S.C. § 3572(d) (providing that "[a] person sentenced to pay a fine or other monetary penalty, including restitution, shall make such payment immediately, unless . . . the court provides for payment on a date certain or in installments.").
Plaintiff also relies on United States v. Myers, 198 F.3d 160 (5th Cir. 1999). (See Answer to Question 3). Myers, unlike this case, was a direct appeal which challenged inter alia, the sentencing court's determination that he was able to immediately pay over $40,000 in restitution. Myers, 198 F.3d at 169. The Fifth Circuit concluded the district court plainly erred in requiring immediate payment of the restitution, and remanded for the court to set a payment schedule for the court-ordered restitution. In this case, Plaintiff neither challenges the immediate payment requirement of his restitution, nor claims an inability to pay the same.
Plaintiff correctly notes that Warden Tombone exempted him from IFRP payments in 2000 based on BOP's interpretation of Fifth Circuit case law. (See Answer to Question 3, and April 13, 2000 Response to Request for Administrative Remedy #208713-F1, attached to answer to questionnaire). That exemption, however, was temporary until the sentencing court could be contacted. (See April 13, 2000 Response from Warden Tombone). Moreover, the fact that the exemption from IFRP, although based on an incorrect interpretation of Fifth Circuit precedent, lasted as long as two years, does not entitle Plaintiff to a permanent exemption.
The IFRP has been uniformly upheld against constitutional attack. McGhee v. Clark, 166 F.3d 884, 886-87 (7th Cir. 1998);Johnpoll v. Thornburgh, 898 F.2d 849, 851 (2d Cir. 1990);James v. Quinlan, 866 F.2d 627, 630 (3d Cir. 1989); see also Montano-Figueroa v. Crabtree, 162 F.3d 548 (9th Cir. 1998) (per curiam) (IFRP, which allowed BOP to withhold prisoner's wages for payment of court-ordered fine, was not improper intrusion upon court's statutory sentencing authority, and IFRP was neither usurpation of sentencing court's Article III power nor violation of separation of powers doctrine). Moreover, to the extent Plaintiff seeks to challenge the restitution aspect of his sentence, he should have raised this claim on direct appeal.United States v. Hatten, 167 F.3d 884, 887 n. 5 (5th Cir. 1999) (restitution can be challenged only on direct appeal).
The magistrate judge concludes that the resumption of IFRP payments did not violate Plaintiff's due process rights. Regardless of the temporary exemption granted in April 2000, the BOP had the authority to enforce IFRP. Therefore, Plaintiff's due process claims are wholly baseless and patently frivolous.
Alternatively the claims against Defendants Watts, Thompson, Morrison and Smith are subject to dismissal for failure to exhaust administrative remedies. See 42 U.S.C. § 1997e(a) (providing that prisoners must exhaust available administrative remedies before seeking relief under 42 U.S.C. § 1983 or other federal law); Porter v. Nussle, 534 U.S. 516, 524 (2002) ("[F]ederal prisoners suing under Bivens must first exhaust inmate grievance procedures just as state prisoners must exhaust administrative processes prior to instituting a § 1983 suit.").
In this lawsuit, Plaintiff complains that Defendants Watts, Thompson, Hood, Morrison and Smith directed the BOP to recommence enforcement of IFRP in violation of his due process rights and in retaliation for filing a FTCA claim. The requests for administrative remedies and appeals for administrative remedies, informally known as BP-8, BP-9, BP-10, and BP-11 (attached to Plaintiff's answers to the magistrate judge's questionnaire), concern only the alleged actions of T. Hauck (previously sued in the Eastern District action) and Defendant Hood. None of the requests or appeals challenged the conduct of Defendants Watts, Thompson, Morrison and Smith. As a result, Plaintiff has not exhausted his available administrative remedies with respect to these Defendants.
Next Plaintiff claims that Defendants reinstated his IFRP payments in retaliation for filing a claim under the FTCA seeking reimbursement of previously withdrawn IFRP funds. To state a claim of retaliation an inmate "must allege (1) specific constitutional rights, (2) the defendant's intent to retaliate against the prisoner for his exercise of that right, (3) a retaliatory adverse act, and (4) causation." Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003); see also McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998); Tighe v. Wall, 100 F.3d 41, 42 (5th Cir. 1996) ("`To state a claim of retaliation an inmate must allege the violation of a specific constitutional right and be prepared to establish that but for the retaliatory motive the complained of incident . . . would not have occurred.'"). Mere conclusory allegations are insufficient to state a claim. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995); Richardson v. McDonnell, 841 F.2d 120, 122-23 (5th Cir. 1988).
Plaintiff cannot present any facts in support of the intent element. Retaliatory motive must be more than "the prisoner's `personal belief that he is the victim of retaliation.'" Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). Nor can Plaintiff produce evidence in support of the causation elements — that but for filing the FTCA claim, the BOP would not have resumed enforcement of IFRP. While the resumption of IFRP payments postdated the filing of his FTCA claim, it is clear the BOP had the authority to collect payments under the IFRP program, for the reasons set out above. Therefore, Plaintiff's retaliation claims lack an arguable basis in law.
Plaintiff's remaining claims fare no better. He complains Defendants failed to investigate or address the allegations in his grievances. An inadequate or invalid investigation, however, is insufficient to state a civil rights claim unless another recognized constitutional right is involved. See, e.g., Andrews v. Fowler, 98 F.3d 1069, 1079 (8th Cir. 1996) (police chief was not individually liable, under § 1983, to claimant raped by police officer based on police chief's failure to investigate rape, inasmuch as failure to investigate did not rise to level of separate constitutional violation of claimant's right); Burchett v. Self, 30 F.3d 133, 1994 WL 276865, *2 (6th Cir. 1994) (unpublished) (failure to investigate does not raise a constitutional claim); Scher v. Chief Postal Inspector, 973 F.2d 682, 683-84 (8th Cir. 1992) (inmates failed to state Bivens claim based on refusal of post office employees to investigate complaint regarding prison administrators' treatment of their mail); Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985) (lack of police investigation, by itself, was not a deprivation of a constitutional right); Hicks v. Bowles, 2003 WL 251543, *4, 3:03cv1228-L (N.D.Tex. Feb. 3, 2003) (adopting recommendation of magistrate judge); Malloy v. City of New York, 1996 WL 648927, *2 (S.D.N.Y. Nov 07, 1996) (unpublished) (there is no constitutional right to an investigation or arrest of an individual who has committed an assault upon a prisoner unless the omission or inadequacy of the investigation itself resulted in a deprivation of a constitutional right).
With respect to Judge Lake, Plaintiff alleges he directed the BOP to reinstate his IFRP payments in violation of Article III and due process of law. As noted previously the BOP had the authority to recommence enforcement of IFRP. Therefore, Judge Lake's ex parte communication, if any, with Defendants or any other BOP's representative is immaterial and does not violate any due process rights. Further any claim against Judge Lake for monetary damages is foreclosed by the absolute immunity afforded to judicial officers discharging judicial functions. Stump v. Sparkman, 435 U.S. 349, 359 (1978). Two conditions must be met before judicial immunity can attach: the act must be "judicial" in nature, and it must not have been taken in the "clear absence of all jurisdiction." Id. at 357, 360; see also Mireles v. Waco, 502 U.S. 9, 12 (1991) (finding that a judge who had directed police officers to use excessive force in bringing an attorney into his courtroom was immune from a suit subsequently brought by that attorney under 42 U.S.C. § 1983).
Throughout the complaint and answers to the questionnaire, Plaintiff categorizes the alleged communication between BOP officials and Just Lake as " ex parte" in nature. Even assuming the communication was ex parte, any statements made with respect to Plaintiff's restitution concerned a criminal case over which Judge Lake presided. Under the first criterion for assessing the applicability of absolute judicial immunity, the factors determining whether an act by a judge is a "judicial" one relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his official capacity. Stump, 435 U.S. at 362. The fact that a judge acts informally, outside the courtroom and without observance of procedural requirements, or engages in ex parte communications, does not strip a judge of absolute immunity. Id. at 361-63; see also Forrester v. White, 484 U.S. 219, 226-227 (1988); Cleavinger v. Saxner, 474 U.S. 193, 200 (1985). As such, any statements made by Judge Lake to BOP officials constituted an ex parte communication appropriately considered a "judicial act."
In addition an ex parte communication is not so far beyond the scope of a judge's normal actions as to be considered taken "in the absence of all jurisdiction," especially since the communication concerned a criminal case over which he had presided. "[T]he scope of the judge's jurisdiction must be construed broadly. . . ." Stump, 435 U.S. at 356; see also Holloway v. Walker, 765 F.2d 517, 523 (5th Cir. 1985). "[T]he fact that the power to take a given action is not expressly included in a judge's jurisdiction . . . is less significant than the fact that it is not expressly excluded from that jurisdiction." Lopez v. Vanderwater, 620 F.2d 1229, 1233 n. 4 (7th Cir. 1980); see also Stump, 435 U.S. at 358. Moreover, a judge does not lose immunity because an action is erroneous, malicious, in excess of his authority, or disregardful of elementary principles of procedural due process, as long as the judge had jurisdiction over the subject matter before him.Stump, 435 U.S. at 356, 359-60. Accordingly, the magistrate judge concludes that the ex parte communication at issue does not fall within either of the two exceptions to absolute immunity.
Plaintiff has been given an opportunity to expound on the factual allegations of his complaint by way of questionnaire.See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (reaffirming use of questionnaire as useful and proper means for court to develop factual basis of pro se plaintiff's complaint); Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994) (same); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (same). Because he has failed to allege any cognizable claim for relief against the named Defendants and Judge Lake is absolutely immune from any claim for monetary damages, the complaint should be dismissed with prejudice as frivolous and for seeking monetary relief against a defendant who is immune from such relief pursuant to §§ 1915(e)(2)(B)(i) and (iii), 1915A(b)(1) and (2).
RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiff's claims against Defendants Harrrell Watts, Ronald G. Thompson, Michael D. Hood, M. Morrison, and R.A. Smith, in their individual capacity, and the non-monetary claims against Judge Simeon T. Lake, III, be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915A(b)(1) and 1915(e)(2)(B)(i).
It is further recommended that Plaintiff's claims for monetary damages against Judge Lake be dismissed with prejudice for seeking monetary relief against a defendant who is immune from such relief, see 28 U.S.C. § 1915(e)(2)(B)(iii), 1915A(b)(2); and that Plaintiff's claims against Defendant Thompson in his official capacity be dismissed for lack of jurisdiction.
A copy of this recommendation will be mailed to Plaintiff I. Stephan Bloch, BOP #66981-079, FCI Texarkana, P.O. Box 7000, Texarkana, TX 75505-7000.