Opinion
No. 1:04-cv-06396 OWW LJO P, Modification to Order Adopting Findings and Recommendations (Doc. 15).
January 4, 2006
ORDER DISMISSING ACTION FOR FAILURE TO STATE A CLAIM
Plaintiff Anthony G. Kizzee ("Plaintiff") is a federal prisoner proceeding pro se in this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72-302.
On November 10, 2005, the Magistrate Judge filed a Findings and Recommendations herein which was served on Plaintiff and which contained notice to Plaintiff that any objections to the Findings and Recommendations were to be filed within thirty (30) days. On December 12, 2005, Plaintiff filed objections to the Magistrate Judge's Findings and Recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 73-305, this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis. Title 28 C.F.R. § 545.11(a)(1)-(5) specifically authorizes the Bureau of Prisons Unit Staff to help an inmate develop a financial plan, when an inmate has a financial obligation, and monitor the inmate's progress in meeting that obligation. Subsection (a)(3) makes a court-ordered fine a third priority obligation.
Under § 545.11(b) the inmate is responsible for making satisfactory progress in meeting his/her financial responsibility plan and for providing documentation of these payments to unit staff. Under § 545.11(b)(1) "ordinarily, the minimum payment for non-UNICOR and UNICOR grade 5 inmates will be $25.00 per quarter. This minimum payment may exceed $25.00, taking into consideration the inmate's specific obligations, institution resources, and community resources. Under subsection (b)(2) inmates assigned in grades 1 through 4 in UNICOR ordinarily will be expected to allot not less than 50% of their monthly pay to the payment process. Any allocation which is less than the 50% minimum must be approved by the Unit Manager.
Under § 545.11(d) refusal by an inmate to participate in the financial responsibility program or to comply with the provisions of his financial plan result in a variety of sanctions including not receiving any furlough; not receiving performance pay above the maintenance pay level or bonus pay or vacation pay; not being assigned to a work detail outside the secure perimeter of the facility; not being placed in UNICOR or, if assigned to UNICOR, being removed from UNICOR and, once removed, may not be placed on a UNICOR waiting list for six months. Other sanctions that can be imposed include a monthly commissary spending limitation; quartering the inmate in the lowest housing status; the inmate will not be placed in a community based program; the inmate will not receive a release gratuity unless approved by the Warden; and the inmate will not receive an incentive for participation in residential drug treatment programs.
It is important to distinguish a schedule of payments under the Mandatory Victim Restitution Act, 18 U.S.C. §§ 3663A- 3664, which is a non-delegable duty of the District court to make a schedule for payment of restitution while a Defendant was in prison, from scheduling payment of a fine. In Montagno-Figueroa v. Crabtree, 162 F.3d 548, 550 (9th Cir. 1998) the Ninth Circuit expressly holds that a District Court can delegate scheduling of the payment of fines to the Bureau of Prisons. See United States v. Gunning, 401 F.3d 1145, 1150 (9th Cir. 2005) (distinguishing restitution payments under the MVRA as non-delegable, from fine payments which are delegable to the BOP); see also, citing the principle with approval, United States v. Stephens, 424 F.3d 876, 881, fn.2 (9th Cir. 2005).
There is no error in the Magistrate Judge's analysis which recognizes the well-established authority of the Bureau of Prisons to impose sanctions against a prisoner for failure to participate and perform in a financial program relative to payment of a court-ordered fine.
Accordingly, IT IS ORDERED:
1. The Findings and Recommendations, filed November 10, 2005, are ADOPTED IN FULL; and
2. This action is DISMISSED, with prejudice, for Plaintiff's failure to state a claim upon which relief may be granted pursuant to Bivens.