RICHARD G. STEARNS, District Judge.
I agree with Magistrate Judge Cabell's Report and his adoption of the Fifth Circuit's analysis of the argument raised by Carter here, as well as its conclusion that "there is no necessary inconsistency between line D [of the judgment], the payment schedule following [the Petitioner]'s release, and the apparently standard paragraph requiring payments to be made during imprisonment `unless expressly ordered otherwise.'" Hickman v. Keffer, 498 F. App'x 375, 378 (5th Cir. 2012). Line D of the judgment merely specifies the frequency, duration, and amount of the payments to be made after Carter is released from prison; it says nothing about those being the sole payments for which he is responsible. No other aspect of the judgment "expressly orders" that Carter be relieved of his restitution obligations while he is incarcerated. Indeed, the very size of the restitution amount ordered in Carter's case — some $1.3 million — militates for immediate payments. Otherwise, his entire repayment obligation would amount to only $18,000, despite a fifteen-year prison sentence during which payments could be made.
This consideration by itself overcomes Carter's reliance on United States v. Merric, 166 F.3d 406 (1st Cir. 1999), in his objection to the Report. In Merric, the First Circuit "held that it is the inherent responsibility of the judge to determine matters of punishment and this includes final authority over all payment matters." Id. at 409. Here, the District Judge exercised that responsibility as reflected in line D of the judgment when read with the general savings paragraph, which states that "payment of criminal monetary penalties is due during imprisonment." The savings paragraph likewise specifies that those payments may be made "through the Federal Bureau of Prisons' Inmate Financial Responsibility Program." Therefore, contrary to Carter's argument, the District Judge did not improperly delegate his responsibilities under 18 U.S.C. § 3572(d). See Bramson v. Winn, 136 F. App'x 380, 381 (1st Cir. 2005) (where the sentencing court ordered payment due immediately, "there was no improper delegation" where the "Bureau of Prisons . . . us[ed] the IFRP to collect . . . court-ordered payments"); United States v. Stewart, 2015 WL 728498, at *1 & n.3 (D. Me. Feb. 19, 2015) (holding that the savings paragraph, in conjunction with a post-release repayment schedule, satisfies Bramson and Merric).
The court also views as persuasive Grondolsky's alternative argument that the IFRP is an incentive program designed to encourage prisoners to voluntarily make payments toward their restitution obligations. See United States v. Lemoine, 546 F.3d 1042, 1048 (9th Cir. 2008). Although Lemoine involved a case in which the sentencing court had specifically mandated participation in the IFRP and a minimum quarterly payment, its holding that "the BOP has the authority to encourage voluntary payments in excess of those required under the court's judgment by conditioning the receipt of certain privileges during the term of imprisonment on the inmate's participation in the IFRP," id. at 1050, is just as pertinent here. Manifestly, Carter has "no entitlement, constitutional or otherwise, to any of the benefits agreeing to participate in the IFRP would provide." Id. at 1049; see also 28 C.F.R. § 545.11(d) (describing the effects of refusal to participate in IFRP); Bramson, 136 F. App'x at 381 n.1 (concluding that constitutional challenges to the IFRP lack merit).
For the foregoing reasons, the Magistrate Judge's Recommendation is
SO ORDERED.
CABELL, U.S.M.J.
Petitioner John Carter ("the petitioner") has brought a habeas action under 28 U.S.C. § 2241 against the Federal Medical Center at Devens ("FMC Devens") and Jeff Grondolsky ("Grondolsky"), the Warden of FMC Devens (collectively "the respondents"). He contends that his forced participation in a program known as the Inmate Financial Responsibility Program, through which funds are taken from an inmate's account to satisfy their court imposed financial obligations, violates the terms of his sentence, which, he contends, deferred the obligation to make any such payments until after he is released from prison. The respondents move to dismiss the petition for failure to state a claim. (Dkt. No. 18). Because I conclude that the sentencing court ordered the petitioner's payment obligations to begin immediately and did not defer them until after his imprisonment, I find that the petition lacks merit and accordingly recommend that the motion to dismiss be granted.
Following a guilty plea on two counts of mail fraud and one count of tax evasion, a judge sitting in the U.S. District Court for the Eastern District of Pennsylvania sentenced the petitioner to a 180-month term of imprisonment, to be followed by a threeyear term of supervised release. (Dkt. No. 1). The court also ordered the petitioner to (1) make restitution in the amount of $1,330,011, (2) pay a fine in the amount of $30,000, and (3) pay a $300 special assessment. (Id.).
According to the "Schedule of Payments" set out in the "Judgment in a Criminal Case" (the "Judgment"), the sentencing court checked Box A to indicate that the petitioner was to make a lump sum payment of $300.00 immediately. The sentencing court also checked Box D to indicate that the petitioner was to make monthly installments of $500.00 "over a period of 36 months . . . to commence 30 days . . . after release from imprisonment to a term of supervision . . ."
Underneath the Schedule of Payments section, but separate from that section, the following language appears:
The petitioner arrived at FMC Devens on January 4, 2008. In time, the Bureau of Prisons ("BOP") set about collecting money from the petitioner to satisfy his financial obligations, through the program referenced above, the Inmate Financial Responsibility Program ("IFRP"). The IFRP was created to assist "each sentenced inmate to meet his or her legitimate financial obligations." 28 C.F.R. § 545.10. Under the program, BOP staff develop a financial plan in conjunction with the inmate to fulfill monetary obligations as ordered by the sentencing court. Id. The inmate is then responsible for making payments according to their personalized financial responsibility plan. 28 C.F.R. § 545.11(b).
An inmate may elect to make partial payments under their personalized financial responsibility plan, or may elect to forego participation in the program altogether. 28 C.F.R. § 545.11(d). However, when an inmate refuses to participate in the program or to comply with the provisions of their financial responsibility plan, he may become ineligible to enjoy certain privileges. 28 C.F.R. § 545.11(d)(1)-(11).
According to the petitioner, he was advised upon his arrival at FMC Devens that he was not required to participate in the IFRP, because the sentencing court had ordered that all criminal monetary penalty obligations be deferred until the start of his term of supervised release. Dkt. No. 1. However, BOP officials informed the petitioner at some point in April of 2014 that he would be required to participate in the IFRP, and negotiated with him a rate of $75.00 per month. Id. The monthly rate subsequently increased to $212.00 due to the petitioner's increased total inmate earnings and financial support from outside sources. Id. The petitioner refused to meet his monthly obligations and prison officials subsequently placed him on "refusal status," which in turn led to the loss of several inmate privileges. Id. After exhausting his administrative remedies, the petitioner commenced this action challenging the requirement that he participate in the IFRP.
To survive a Rule 12(b)(6) motion to dismiss, the complaint must include sufficient factual allegations that, when taken as true, demonstrate a plausible claim of relief. Bell Atlantic v. Twombly, 550 U.S. 544, 555-58 (2007). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. The "plausibility" standard is met where "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556).
When deciding a motion to dismiss under Rule 12(b)(6), the "plausibility" standard requires the court: (1) to distinguish between the complaint's factual allegations, which must be accepted as true, and its conclusory legal allegations which are afforded no credence, and (2) to determine whether the factual allegations "are sufficient to support the reasonable inference that the defendant is liable for the misconduct alleged." Garcia-Catalan v. U.S., 734 F.3d 100, 103 (1st Cir. 2013). The complaint should be dismissed only if "the pleading shows no set of facts which could entitle plaintiff to relief." Zona v. Clark University, 436 F.Supp.2d 287, 288(D. Mass. 2006).
A habeas petition brought under § 2241 challenges the execution of a federal prisoner's sentence. Thorton v. Sabol, 620 F.Supp.2d 203, 206 (D. Mass. 2009). As the petitioner challenges the execution of his sentence by claiming that the BOP acted unlawfully in forcing him to participate in the IFRP to satisfy the monetary penalties the sentencing court imposed, his claim falls squarely within the purview of a section 2241 petition. See Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001).
The petitioner does not contend that the IFRP is unconstitutional. Rather, he argues that he should not have been forced to participate in the IFRP because the sentencing court indicated that he would not have to begin making payments towards his monetary obligations until after his release from prison. The petitioner notes that Box D in the Schedule of Payments, which the sentencing court checked, "clearly states that [the petitioner's] criminal monetary responsibilities begin thirty days after incarceration ends." The petitioner reads this language in conjunction with the standard provision providing that "payment of criminal monetary penalties is due during imprisonment" "[u]nless the court has expressly ordered otherwise . . .," and argues, in essence, that the sentencing court, by checking Box D, expressly ordered otherwise in his case. As a result, so the petitioner argues, he should not have been required to participate in the IFRP.
The petitioner's argument is not facially outrageous. Arguably, the Judgment form is ambiguous to the extent it is not self-evident whether a sentencing court, by checking Box D and indicating a defendant is to "commence" making payments beginning 30 days after release, has "expressly ordered otherwise" and thus deferred payment of all criminal monetary penalties until after imprisonment. Still, this Court has no trouble concluding that the Judgment, read as a whole and in a common sense fashion, impels the conclusion that the sentencing court did not "expressly order otherwise" but in fact ordered that the petitioner's financial obligations begin immediately rather than be deferred until after imprisonment.
Specifically, where the sentencing court imposed a special assessment of $300.00, and also checked Box A ordering the petitioner to make an immediate lump sum payment of $300.00, it is clear in context that the court was ordering that the petitioner pay the special assessment immediately. Similarly, where the sentencing court imposed a term of supervised release of three years, and also checked Box D requiring the petitioner make monthly payments of $500 during that same three-year period, the most logical and reasonable inference is that the sentencing court merely meant to make it clear that the petitioner would also as a condition of his supervised release be required to make payments towards his fine and restitution.
By contrast, it would not be reasonable to view the Judgment (through the checked Box D) as purporting to defer all payments until after the petitioner is released from prison. Indeed, treating that provision as controlling the payment-obligation portion of the petitioner's sentence would, if interpreted literally, mean that the petitioner would only have to pay a total of $18,000 towards the entire $1.3 million fine and restitution penalty. Such a result would be patently absurd and in conflict with the Judgment as a whole. Other courts that have considered the issue have similarly found that there is no inconsistency between section D requiring payments to be made during the term of supervised release and the Judgment's standard paragraph requiring payments to be made immediately unless expressly ordered otherwise. See Hickman v. Keffer, 498 Fed. App'x 375 (5th Cir. 2012) (holding that "there is no necessary inconsistency between line D, the payment schedule following [the petitioner's release], and the apparently standard paragraph requiring payments to be made during imprisonment unless expressly ordered otherwise"); U.S. v. Paz, 265 Fed. Appx. 333, 334 (5th Cir. 2008) (same); Rashad v. Mosey, 2014 WL 7339058, at *3 (S. D. Miss. 2014) ("There is no inconsistency between the language setting forth a payment schedule following [the petitioner's] release and the language requiring payments to be made during imprisonment contained in the judgment."). In short, the sentencing court did not defer the petitioner's payment obligations until after imprisonment and nothing in the Judgment prevented the BOP from requiring the petitioner to participate in the IFRP.
For the foregoing reasons, it is recommended that the respondents' motion to dismiss (Dkt. No. 18) be GRANTED. It is further recommended that the petitioner's motion for summary judgment (Dkt. No. 21), the respondents' cross motion for summary judgment (Dkt. No. 33), and the petitioner's motion to show cause (Dkt. No. 35) all be DENIED as moot.
The parties are hereby advised that under the provisions of Federal Rule of Civil Procedure 72(b), any party who objects to this recommendation must file specific written objections thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b) will preclude further appellate review of the District Court's order based on this Report and Recommendation. See Keating v. Secretary of Health and Human Servs., 848 F.2d 271 (1st Cir. 1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); see also Thomas v. Arn, 474 U.S. 140 (1985).
