The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Andrew Guilford, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
On June 26, 2012, Petitioner filed a document entitled "Appeal of Denial of Administrative Remedy and Notice of BOP Action that Amounts to Exhaustion of Inmate Collins['] Administrative Remedy; Petition for 28 U.S.C. §2241 Pursuant to Habeas Corpus Statutes §2241 - §2255"
("Petition"). The Petition essentially alleged that the Federal Bureau of Prisons ("BOP") violated Petitioner's rights by imposing and/or increasing payments for court-imposed fines and felony assessments pursuant to the BOP's Inmate Financial Responsibility Program ("IFRP").*fn1
On August 30, 2012, Respondent filed "Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241" ("Motion to Dismiss"), accompanied by the Declaration of Sarah Schuh ("Schuh Dec.") and exhibits, which were incomplete. On September 4, 2012, Respondent filed "Correct Exhibits to Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. §2241." On September 26, 2012, Petitioner filed an Opposition to the Motion to Dismiss.
On October 28, 2012, the Court issued an Order dismissing without prejudice any claim that the Oklahoma District Court imposed fines and assessments without determining Petitioner's ability to pay, but otherwise denying the Motion to Dismiss. On November 28, 2012, Respondent filed an Answer, accompanied by the "Supplemental Declaration of Sarah Schuh" ("Schuh Supp. Dec.") and exhibits. On December 13, 2012, Petitioner filed "Petitioner's Response to Respondent's Answer, etc." ("Petitioner's Response").
On November 17, 2006, the United States District Court for the Northern District of Oklahoma sentenced Petitioner to prison terms in two drug trafficking cases, case numbers 06-CR-0033 and 06-CR-0067 (Petition, Ex. pp. 13-18;*fn2 Schuh Dec., Exs. A, B; see United States v. Collins, 364 Fed. App'x 496, 497 (10th Cir. 2010)). The court ordered Petitioner to pay a $100 felony assessment and a $1500 fine in both cases (Petition, Ex. pp. 13-18; Schuh Dec. Exs. A, B; see United States v. Collins, 364 Fed. App'x at 497).*fn3 The court included "Special instructions regarding the payment of criminal monetary penalties," stating, inter alia: "Any criminal monetary penalty is due in full immediately, but payable on a schedule of the greater of $25 quarterly or 50% of income pursuant to the Federal Bureau of Prisons' Inmate Financial Responsibility Program while in prison." (Respondent's Ex. B). ///
The United States Court of Appeals for the Tenth Circuit affirmed the judgment in case number 06-CR-0033. See United States v. Collins, 267 Fed. App'x 744 (10th Cir.), cert. denied, 553 U.S. 1046 (2008). Petitioner did not appeal the conviction in case number 06-CR-0067, but did file in that case a motion to vacate the sentence pursuant to 28 U.S.C. section 2255. The Oklahoma District Court denied the motion as untimely. The Tenth Circuit affirmed the denial. See United States v. Collins, 364 Fed. App'x at 497.
Petitioner participated in the IFRP from September 14, 2009, to June 5, 2012 (Supp. Schuh Dec., Ex. A). Sometime in June 2012, prison officials reportedly calculated Petitioner's IFRP payment as $30 per month (Petition Ex. p. 10). On May 30, 2012, Petitioner stated in an "Inmate Request to Staff" that he was being required to pay a fine greater than that authorized by the Mandatory Victim's Restitution Act of 1996, 18 U.S.C. § 3663A et seq. (id.). Petitioner requested to pay only $25 quarterly (id.). On June 4, 2012, Petitioner wrote another "Inmate Request to Staff," requesting that the BOP "cease and desist the unconstitutional collection through the IFRP Program as it runs afoul of Ninth Circuit FRP Review Jurisprudence" (Petition Ex., p. 11).
On June 5, 2012, Petitioner allegedly requested placement in "FRP REFUSE STATUS" (Petition Ex., p. 10). A correctional counselor responded in writing: "You are to follow the conditions of the FRP Program if you chose [sic] to participate. Based on your request to cease and desist the FRP Program, you have been placed on FRP REFUSE STATUS" (Petition Ex., p. 11). On June 6, 2012, a correctional counselor allegedly told Petitioner that Petitioner was required to follow the IFRP Program if Petitioner chose to participate in that program (Petition Ex., p. 10). The correctional counselor allegedly stated that the counselor had contacted the United States District Court for the Northern District of Oklahoma to clarify the court's order, and reported that the Oklahoma Court had stated "the inmate is to follow the Prison[']s IFRP" (id.).
On June 18, 2012, Petitioner wrote a formal Administrative Remedy Request, appealing the denial of his "Inmate Request to Staff," and seeking: the discontinuance of all present and contemplated "punitive actions"; the reversal of a move to "punitive housing"; and protection from any retaliation (Schuh Dec., Ex. E). The acting Warden denied the appeal on August 3, 2010 (id.). The Warden stated that Petitioner's placement in the IFRP and the imposition of scheduled payments as determined by the unit team were "appropriate and will not be adjusted" (id.). The Warden also stated that the sanctions imposed as a result of ...