Opinion
No. 3:04-CV-1179-P.
December 14, 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 a civil rights action brought by a federal inmate against federal officials in their individual and official capacities.
Parties: Plaintiff is presently incarcerated at the Federal Correction Institution (FCI) in Forrest City, Arkansas. Defendants are Tiffany Harper, Financial Litigation Agent for the U.S. Attorney's Office for the Northern District of Oklahoma, and Shannon W. Phelps, Case Manager for the Bureau of Prisons at FCI Seagoville. The court has not issued process in this case. However, on June 10, 2004, the Magistrate Judge issued a questionnaire to Plaintiff, who filed his answers on July 8, 2004. Statement of Case: Plaintiff is incarcerated pursuant to a judgment imposed on March 21, 1997, by the United States District Court for the Northern District of Oklahoma in Case No. 94-CR-030-001-BU, in which he was sentenced to a term of imprisonment and a $3,000 fine. The trial court ordered that the fine be paid "in full immediately." (See Complaint, attachments at 22-23).
Shortly after his incarceration in 1997, Plaintiff executed a written contract with BOP officials under the Inmate Financial Responsibility Program (IFRP) to pay his fine at the rate of $25.00 per quarter. He fully complied with the terms of his IFRP contract for six years until early 2003, when his unit team at FCI Seagoville modified his financial plan and increased his IFRP payments to $50.00 per quarter. Plaintiff declined to accept the modified plan and on March 20, 2003, he was placed in "refuse" status and was subsequently transferred to FCI Forrest City, where he is presently incarcerated. He resumed participating in the IFRP on May 15, 2003, after continued threats and in light of the adverse consequences.
The predicate for Plaintiff's claim against Ms. Harper is unclear. In the attachments to the complaint and in the answers to the questionnaire, Plaintiff appears to be claiming that, after notifying her that he disputed the validity of the uncollected portion of the court imposed fine (see complaint, attachment 20), she did not inform BOP employees to discontinue efforts to collect the outstanding balance under the IFRP.
Plaintiff also claims that Ms. Harper and Ms. Phelps engaged in extortion of money, intimidation and abuse of process under the Consumer Credit Protection Act, 15 U.S.C. §§ 1692, et seq., various criminal provisions of the United States Code, 18 U.S.C. §§ 1001(a) and 872, the U.S. Constitution, 42 U.S.C. § 1983, andBivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). (Complaint at 4 and attached Notice of Tort Claim at 8-16). He seeks compensatory and punitive damages, "an injunction against any further retaliation or debt collection practices by the BOP or U.S. Attorney's Office," and "[a] release order of the IFRP fine, releasing [Plaintiff] from further obligation." (Complaint at 4 and attached Notice of Tort Claim at 16-18). 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 complaint incorporates by reference the Notice of Tort Claim, filed on March 31, 2003, and denied on April 9, 2004. (Complaint, attachments at 4-61, and 67-68).
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, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
Insofar as Plaintiff sues Defendants in their official capacities predicated on their alleged actions in violation of the laws and constitution of the United States, i.e., a Bivens action, the same are considered as the actions of the federal agencies by whom each is employed. It is well established that a federal agency is immune from an action predicated on Bivens. F.D.I.C. v. Meyers, 510 U.S. 471, 486, 114 S.Ct. 996, 1006, 127 L.Ed.2d 308 (1994).
To the extent that Plaintiff Eidson seeks to hold each defendant individually liable under Bivens, the court must determine whether Plaintiff can show that Defendants deprived him of any rights, privileges, or immunities secured by the Constitution or laws of the United States.
This action stems from application of the IFRP, 28 C.F.R. § 545. This Court has recently had occasion to discuss the IFRP.See Bloch v. Lake, No. 3:03-CV-2965-G, 2004 WL 1084720, at *1-6 (N.D. Tex. May 10, 2004) (findings, conclusions, and recommendation), accepted by, 2004 WL 1208904 (N.D. Tex. Jun. 1, 2004); see also Sylva v. Bureau of Prisons, et al., 3:04-CV-0452-N, 2004 WL 1553471 (N.D. Tex. Jul. 12, 2004) (findings, conclusions and recommendation), accepted by, 2004 WL 1732354 (N.D. Tex. Aug. 2, 2004). It noted:
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).Bloch, 2004 WL 1084720 at *2. The Court further noted:
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).Id. at *2 n. 3. In addition, § 545.11(b) permits BOP staff to unilaterally accelerate or increase an inmate's payments, and to consider funds obtained from outside sources as available resources in determining the appropriate payment. See McGhee v. Clark, 166 F.3d 884, 887 (7th Cir. 1999); Mujahid v. Crabtree, 999 F.Supp. 1398, 1400 (D.Or. 1998), aff'd 172 F.3d 57 (9th Cir. 1999) (unpublished).
IFRP regulations have "been uniformly upheld against constitutional attack." See Bloch, 2004 WL 1084720, at *4 n. 5 (citing 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).
In this case, Defendants were merely acting in accordance with the IFRP. In light of the case authority cited above and particularly in the absence of Fifth Circuit case law calling into question the constitutionality of the IFRP, the court concludes that efforts to collect fines pursuant to the IFRP did not violate Plaintiff's constitutional rights.
In the attachments to his complaint, Eidson raises issues with respect to his underlying conviction. However, he has not demonstrated in any manner that his conviction has been vacated or rendered invalid in any judicial proceeding prior to the dates on which the Defendants are alleged to have acted. The fact that he is currently in custody serving his 1997 conviction is a tacit admission that it remains in full force and effect.
Plaintiff claims that Defendants sought to extort money from him through intimidation and abuse of process. (See Answer to Question 6, relying on the Third, Fourth, Fifth, Sixth and Tenth Amendments). Because Defendants were merely collecting payments in accordance with IFRP regulations, this claim has no merit. SeeMcGhee v. Clark, 166 F.3d at 887; Sylva v. BOP, 2004 WL 1553471, at *5. Plaintiff fails to identify any conduct that violates IFRP regulations. Moreover, the decision to unilaterally accelerate his quarterly payments based upon resource funds obtained from outside sources is "expressly permitted by IFRP regulations." McGhee, 166 F.3d at 887 (citing 28 C.F.R. § 545.11(b)). Plaintiff's extortion claim thus lacks an arguable basis in law. A conclusory claim of extortion related to the collection of payments through the IFRP does not suffice to maintain a claim under Bivens. See Kelley v. Federal Bureau of Prisons, 835 F. Supp. 1316, 1317-18 (D. Kan. 1993), aff'd, 21 F.3d 1121 (10th Cir. 1994).
Plaintiff also claims that the sentencing court improperly delegated the task of scheduling post-conviction fine payments. (Answer to Questions 2 and 4). He relies on United States v. Workman, 110 F.3d 915 (2nd Cir. 1997), which stands 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. The Fifth Circuit follows the same analysis. See United States v. Albro, 32 F.3d 173, 174 (5th Cir. 1994) (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); United States v. Mancuso, 444 F.2d 691, 695 (5th Cir. 1971) ("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"). It is significant to note, however, that neither Workman nor the above Fifth Circuit cases dealt with enforcement of the IFRP. All three 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.
In this case, Defendants did not attempt to set a repayment schedule for Plaintiff's fine. Upon his conviction, the Court ordered Plaintiff to pay a fine of $3,000 due "in full immediately." (Attachments to complaint at 22-23). Because Defendants merely attempted to collect the court-ordered fine in accordance with the IFRP, this claim lacks an arguable basis in law. See Sylva, 2004 WL 1553471, at *5-6; Bloch, 2004 WL 1084720, at *3-4.
Plaintiff also claims an inability to pay the increased IFRP obligation. (Answer to Question 1). Such inability rises to the level of a constitutional violation only when "the government imposes significant restraints on the defendant's liberty due to his inability to pay, such as revocation of probation or parole."Bieregu v. Reno, No. CIV. A. 93-4894(JEI), 1994 WL 530665, at *2 (D.N.J. Sept. 23, 1994) (citing United States v. Atkinson, 788 F.2d 900, 904 (2d Cir. 1986)), aff'd, 52 F.3d 313 (3d Cir. 1995). Although a failure to comply with an IFRP payment plan may result in the loss of prison privileges and incentives, as it happened to Plaintiff, such losses do not generally impose significant restraints on the prisoner's liberty due to his inability to pay. Id. Because plaintiff has made no allegation that the government has imposed significant restraints on his liberty due to his alleged inability to pay the increased IFRP payments this claim lacks an arguable basis in law.
Plaintiff relies on Murray v. Dosal, 150 F.3d 814, 818 (8th Cir. 1998), for the proposition that prisoners "have a property interest in money received from outside sources" which entitles them to due process protection before they can be deprived of those funds. (See Answer to Question 5). Murray is distinguishable and therefore unpersuasive. That case addressed a prisoner's due process claim — namely whether the fee assessment provisions of the Prisoner Litigation Reform Act violate his right to due process since prison authorities are given uncontrolled authority to take 20% of the prisoner's account without the prisoner being given notice and an opportunity to be heard, or without an evaluation made regarding the prisoner's ability to pay. Murray, 150 F.3d at 818. In this case Plaintiff does not complain of any due process violation. On the contrary, he was on notice at all times about the increase in his IFRP payment.
Lastly, Plaintiff seeks relief under the Consumer Credit Protection Act, 15 U.S.C. § 1692(c), several criminal statutes, 18 U.S.C. §§ 1001(a) and 872, and 42 U.S.C. § 1983. The Consumer Credit Protection Act excludes United States employees from the definition of "debt collectors." See 15 U.S.C. § 1692a(6)(C). Plaintiff concedes as much in answer to the questionnaire. (See Answer to Question 1). In addition Sections 1001(a) and 872 of Title 18 of the United States Code are criminal statutes which provide no basis for this civil action. See Hanna v. Home Ins. Co., 281 F.2d 298, 303 (5th Cir. 1960). Although § 1983, which is a civil rights statute, provides some arguable basis for exercising jurisdiction over this action, any such claim necessarily fails because all Defendants herein are federal rather than state actors. See Evans v. Ball, 168 F.3d 856, 863 n. 10 (5th Cir. 1999) (recognizing that "§ 1983 applies to constitutional violations by state, rather than federal, officials"), abrogated on other grounds, Castellano v. Fragozzo, 352 F.3d 939 (5th Cir. 2003).
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, the complaint should be dismissed with prejudice as frivolous or for failing to state a claim pursuant to §§ 1915(e)(2)(B)(i) and (ii) and 1915A(b)(1).
RECOMMENDATION:
For the foregoing reasons, it is recommended that the claims against the Defendants in their individual capacities be dismissed with prejudice as frivolous or for failure to state a claim pursuant to 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i) and (ii).
It is further recommended that Plaintiff's claims for monetary damages against the Defendants in their official capacities be dismissed as barred by sovereign immunity. 28 U.S.C. §§ 1915A(b)(2) and 1915(e)(2)(B)(iii).
In light of the above it is recommended that Plaintiff's motion to join separate jurisdiction be denied, the same being moot.
It is questionable whether this court has personal jurisdiction over Defendant Tiffany Harper. However, this issue is not reached in light of the court's disposition at the screening stage. See 28 U.S.C. §§ 1915A(a) and 1915(e).
A copy of this recommendation will be mailed to Plaintiff Dennis Reid Eidson, BOP #07246-062, FCI Forrest City, P.O. Box 9000, Forrest City, AR 72336.