Opinion
No. 3:04-CV-0452-N.
July 12, 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, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
Plaintiff, an inmate in a federal correctional institution (FCI) located in Seagoville, Texas, brings suit against the Bureau of Prisons, FCI Seagoville, and several FCI employees. (Pl. Original Compl. at 1-2.) He alleges that he executed a written contract with his unit team on February 11, 2002, to pay his court-ordered restitution at the rate of $25.00 per quarter, that defendants threatened and forced him to sign a renewal contract which increased his payments to $50.00 per quarter on December 16, 2003, and that he cannot afford the new payment. ( Id. at 2.) Although plaintiff expressly sues for breach of contract, he asserts that defendants engaged in extortion of money, malicious prosecution, and abuse of process. He further claims that the court has jurisdiction over this action because it arises under 28 U.S.C. § 1331; 18 U.S.C. §§ 1961-65; and 42 U.S.C. § 1983. ( Id.) Plaintiff seeks monetary damages in excess of $10,000; attorney fees; pre- and post-judgment interest; a temporary restraining order "to stop all payments made toward such contract to preserve the status quo of the original contract"; a preliminary injunction, and costs and expenses. ( Id. at 3-4.) By a memorandum in support of his motion for preliminary injunction filed June 21, 2004, plaintiff also seeks to enjoin defendants during the pendency of this action from collecting restitution payments, retaliating against him, and interfering with administrative remedies. ( See Pl.'s Mem. Supp. Mot. Prelim. Injunction at 1-2.) No process has been issued in this case.
II. INMATE FINANCIAL RESPONSIBILITY PROGRAM
This action stems from defendants' attempt to comply with the Inmate Financial Responsibility Program (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. June 1, 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).Id. 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).
In this case, a unit team from FCI Seagoville developed a payment plan with plaintiff pursuant to the IFRP that required him to pay $25 quarterly toward restitution. Plaintiff agreed to this payment plan. The unit team later determined that the payments should be increased to $50 a quarter, and plaintiff objected to the increase. He, nevertheless, agreed to the increase under duress and alleged threats that he would be placed in refusal status if he refused. He thereafter filed this action.
III. PRELIMINARY SCREENING
Plaintiff is a prisoner who has been permitted to proceed in forma pauperis. As a prisoner seeking redress from a governmental entity and its officers or employees, plaintiff's complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Because he is proceeding in forma pauperis, plaintiff's complaint is also subject to screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief. See id.
A complaint is frivolous when it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Id. at 327. 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 which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Smith v. Winter, 782 F.2d 508, 511-12 (5th Cir. 1986); Henrise v. Horvath, 94 F. Supp. 2d 768, 769 (N.D. Tex. 2000).
IV. JURISDICTION
Plaintiff seeks relief under 28 U.S.C. § 1331; 18 U.S.C. §§ 1961-65; and 42 U.S.C. § 1983. Sections 1961 through 1965 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). Furthermore, § 1331 is a general jurisdictional statute that provides no independent basis for this action. See Loeber v. Bay Tankers, Inc., 924 F.2d 1340, 1345 (5th Cir. 1991). 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").
Regardless, the Court liberally construes complaints filed by pro se parties. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). To the extent that plaintiff alleges that defendants violated his constitutional rights, the Court construes this action as arising under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). "A Bivens action is analogous to an action under § 1983", but it applies to federal officials. See Evans, 168 F.3d at 863 n. 10. In Bivens, the United States Supreme Court held that the violation of a person's constitutional rights by a federal official may give rise to an action for monetary damages in federal court which is brought pursuant to 28 U.S.C. § 1331. Furthermore, the Fifth Circuit Court of Appeals has recognized that a prisoner may request "injunctive relief from violation of his federal constitutional rights." Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993) (citing Bell v. Hood, 327 U.S. 678, 684 (1946), a case relied upon in Bivens). A Bivens action can seek injunctive or declaratory relief in addition to monetary relief. See Ramsey v. United States, No. CIV.A. 3:96-CV-3358-G, 1997 WL 786252, at *2 n. 2 (N.D. Tex. Dec. 11, 1997). Because plaintiff brings suit against federal defendants under § 1983, the Court concludes that Bivens, in conjunction with § 1331, provides the proper jurisdictional basis for plaintiff's constitutional claims.
To the extent that plaintiff sues the Bureau of Prisons for breach of contract rather than violation of his constitutional rights, this Court has no jurisdiction over such a claim because plaintiff seeks more than $10,000 in damages. Suit on any contract with the United States in excess of $10,000 must be brought in the Court of Claims. See 28 U.S.C. §§ 1346(a), 1491 (a)(1); Clinton v. Goldsmith, 526 U.S. 529, 539 n. 13 (1999).
V. BIVENS ACTION
Plaintiff alleges that the federal defendants breached a contract with him. (Pl. Original Compl. at 2.) To state a viable claim under Bivens, plaintiff must show that defendants have deprived him of rights, privileges, or immunities secured by the Constitution or laws of the United States. See Livadas v. Bradshaw, 512 U.S. 107, 132 (1994) (stating that 42 U.S.C. § 1983 provides a federal cause of action and affords redress for the "deprivation, under color of law, of a citizen's `rights, privileges, or immunities secured by the Constitution and laws' of the United States"). A. Claims Against Bureau of PrisonsPlaintiff names the Bureau of Prisons (BOP) as a defendant in this action. Plaintiff can obtain no relief under Bivens against the BOP. See FDIC v. Meyer, 510 U.S. 471, 484-86 (1994) (unanimously declining to extend Bivens to permit suit against a federal agency); Moore v. United States Dep't of Agriculture, 55 F.3d 991, 995 (5th Cir. 1995) (recognizing the failure to extend Bivens to permit actions against federal agencies). Because plaintiff can obtain no relief against the BOP under Bivens, the claims against this defendant lack an arguable basis in law and are thus legally frivolous. See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
B. Breach of Contract
Plaintiff alleges that he executed a written contract on February 11, 2002, to pay his court-ordered restitution at the rate of $25.00 per quarter. He further alleges that defendants breached this contract when they forced him to enter into a second contract which provides for payment of the court-ordered restitution at the rate of $50.00 per quarter.
A breach of contract action provides no basis for a Bivens action. Such a claim simply alleges no deprivation of rights, privileges, or immunities secured by the Constitution or laws of the United States. In his memorandum in support of motion for preliminary injunction, plaintiff contends that the "freedom to contract is a part of the liberty protected by the due process clause of the 5th and the 14th Amendments." (Mem. Supp. Mot. Prelim. Injunction at 2.) Plaintiff, however, has made no allegation that defendants have infringed upon his freedom to contract. Rather, he alleges that defendants breached a contract with him. A simple breach of contract does not rise to the level of a constitutional violation. Moreover, § 545.11 (b) of the IFRP permitted the BOP staff to unilaterally increase plaintiff's payments, and to consider funds obtained from his family as available resources in determining the appropriate payment. See McGhee, 166 F.3d at 887; Mujahid, 999 F. Supp. at 1400. Plaintiff's breach-of-contract claim fails to state a claim upon which relief can be granted.
C. Abuse of Process and Malicious Prosecution
Within his breach-of-contract claim, plaintiff also alleges that defendants engaged in malicious prosecution and abuse of process. Abuse of process and malicious prosecution are two of three related common law torts that, in addition to a tort for wrongful civil proceedings, comprise a generic misuse-of-legal-procedure claim and protect an individual's "interest in freedom from unjustified litigation." Doe v. State, 2 F.3d 1412, 1420 n. 15 (5th Cir. 1993); Beker Phosphate Corp. v. Muirhead, 581 F.2d 1187, 1188 n. 1 (5th Cir. 1978). The Fifth Circuit has recently clarified that "`malicious prosecution' standing alone is no violation of the United States Constitution, and that to proceed under 42 U.S.C. § 1983 such a claim must rest upon a denial of rights secured under federal and not state law." See Castellano v. Fragozo, 352 F.3d 939, 942 (5th Cir. 2003) ( en banc), cert. filed, No. 03-1269 (Mar. 2, 2004). In other words, there is no "freestanding constitutional right to be free from malicious prosecution." Id. at 945. Thus, plaintiff's allegation of malicious prosecution fails to state a claim upon which relief can be granted under Bivens.
Furthermore, even prior to Castellano, when the Fifth Circuit recognized "a constitutional right under the Fourth Amendment to be free from malicious prosecution," it did so only when "all of its common law elements [we]re established." See Izen v. Catalina, 256 F.3d 324, 327-28 (5th Cir. 2001) (citations and internal quotation marks omitted).
To sustain a malicious prosecution claim, Texas law requires that a plaintiff show "(1) a criminal action was commenced against him; (2) the prosecution was caused by the defendant or with his aid; (3) the action terminated in the plaintiff's favor; (4) the plaintiff was innocent; (5) the defendant acted without probable cause; (6) the defendant acted with malice; and (7) the criminal proceeding damaged the plaintiff."Id. at 328 (quoting Taylor v. Gregg, 36 F.3d 453, 455 (5th Cir. 1994)). Because plaintiff has stated no facts which amount to malicious prosecution this claim would fail even under the law as it existed prior to Castellano.
Although the Fifth Circuit has never directly held that an abuse-of-process claim may be pursued under § 1983 or Bivens, it has held that "the common law tort of misuse of legal procedure [(which includes abuse of process)], without more, does not rise to the level of Constitutional wrong remedied by Section 1983", while also recognizing that an "egregious" misuse of legal procedure might constitute a violation of § 1983. See Beker Phosphate Corp., 581 F.2d at 1189. In light of Castellano, it appears unlikely that a claim for abuse of process would suffice to raise a constitutional issue cognizable under § 1983 or Bivens. However, the Court need not determine the impact of Castellano on abuse-of-process claims. Whether or not such a claim rises to the level of a constitutional wrong which may be remedied under 42 U.S.C. § 1983 or Bivens, plaintiff has stated no facts which support an abuse-of-process claim. By its very nature, such a claim protects an individual's "interest in freedom from unjustified litigation." Because plaintiff has not alleged that any defendant has commenced unjustified litigation against him he has alleged no facts which support a claim for abuse of process.
D. Extortion
Plaintiff also claims that defendants have sought to extort more money from him. Because defendants were merely collecting IFRP payments in accordance with IFRP regulations this claim has no merit. See McGhee v. Clark, 166 F.3d 884, 887 (7th Cir. 1999). Plaintiff fails to identify any conduct that violates IFRP regulations. The decision to unilaterally accelerate plaintiff's payments based upon resource funds obtained from outside sources is "expressly permitted by IFRP regulations." Id. (citing 28 C.F.R. § 545.11(b)). Plaintiff's extortion claim thus fails to state a claim upon which relief may be granted. 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).
E. Delegation of Collecting Restitution Payments
Plaintiff also claims that the sentencing court cannot delegate the task of scheduling post-conviction restitution payments. However, defendants in this case did not attempt to set a repayment schedule for plaintiff's court-ordered restitution. Upon plaintiff's conviction, the Court ordered plaintiff to immediately pay restitution. Because defendants merely attempted to collect the court-ordered restitution in accordance with the IFRP this claim fails to state a claim upon which relief may be granted. See Bloch v. Lake, No. 3:03-CV-2965-G, 2004 WL 1084720, at *3-4 (N.D. Tex. May 10, 2004) (findings, conclusions, and recommendation), accepted by, 2004 WL 1208904 (N.D. Tex. June 1, 2004).
Furthermore, this claim states no constitutional violation against any defendant. Defendants were merely acting in accordance with the IFRP. Those regulations have "been uniformly upheld against constitutional attack." See id. at *4 n. 5. Collecting restitution payments through the IFRP does not violate the constitutional rights of plaintiff. F. Inability to Pay IFRP Obligations
Plaintiff also claims an inability to pay the increased IFRP obligations. 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, 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 fails to state a claim upon which relief can be granted.
G. Access to Courts
Plaintiff hypothesizes in his memorandum in support of his motion for temporary restraining order that, if he is forced to pay a contract that he cannot afford, then he will be denied access to court. However, to succeed on a claimed denial of access to courts, plaintiff must show that he lost an actionable claim or was prevented from presenting such a claim because of the alleged denial. See Lewis v. Casey, 518 U.S. 343, 356 (1996); Eason v. Thaler, 73 F.3d 1322, 1328 (5th Cir. 1996) (holding that, to state a sufficient claim of denial of access to the courts, plaintiff must demonstrate that his position as a litigant was prejudiced as a direct result of the denial of access). Because plaintiff merely speculates about a potential future denial of access to court he has not shown prejudice necessary to sustain an access-to-courts claim. Speculation about possible future denials of access to court does not suffice to maintain such a claim.
VI. TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION
Plaintiff seeks a temporary restraining order (TRO) or preliminary injunction in this action. Fed.R.Civ.P. 65 governs the granting of preliminary injunctions and temporary restraining orders. Rule 65(a) provides that "[n]o preliminary injunction shall be issued without notice to the adverse party." Rule 65(b) provides that courts may grant a TRO
without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required.
In this instance, plaintiff has given no notice to the defendants of the request for TRO. As the request for temporary injunction contains no certificate of service, nothing of record indicates that plaintiff has notified defendants of that request. The Court, however, need not rely on that procedural defect to overrule the request.
To obtain a TRO, an applicant must satisfy the requisite elements for obtaining a preliminary injunction. To obtain a preliminary injunction, plaintiff must show (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not issued; (3) that the threatened injury outweighs any damage the order might cause to the respondent; and (4) that the injunction will not disserve the public interest. Enrique Bernat F., S.A. v. Guadalajara, Inc., 210 F.3d 439, 442 (5th Cir. 2000). Because plaintiff has failed to state a claim upon which relief can be granted, he has also failed to show that this action has a substantial likelihood of success on the merits. Consequently, the Court should issue no TRO or preliminary injunction in this case.
VII. RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court summarily DISMISS this action with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Such dismissal will count as a "strike" or "prior occasion" within the meaning 28 U.S.C. § 1915(g). It is further recommended that the District Court deny the requests for temporary restraining order and preliminary injunction.
Section 1915(g), which is commonly known as the "three-strikes" provision, provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.