United States District Court, E.D. California
REQUEST FOR RESPONDENT TO PROVIDE SUPPLEMENTAL
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
reviewing the pending Findings and Recommendations, the Court
requires supplemental briefing from Respondent concerning the
scope of the BOP's authority over Petitioner's IFRP
appears from the record that no BOP “staff”, as
defined in 28 C.F.R. § 500.1(b), has reviewed
Petitioner's IFRP plan. On August 24, 2014, despite
entering into an IFRP contract, Petitioner requested that TCI
stop deducting money from his account. ECF No. 12-1
(Declaration of Dale Patrick), Ex. D. TCI responded on August
27, 2014, stating that Petitioner's financial obligation
was determined based on the IFRP policy, MTC policy 4B2, and
BOP Program Statement 5380.08. Id., Ex. E.
Petitioner subsequently sent a Request for Administrative
Remedy, stating that “MTC's employees cannot
lawfully use the IFRP to collect payments from me because
privately run prison[sic] [MTC] may not schedule or set
it's [sic] own payment plan absent direct court judgment
and commitment schedule set by the district court at
sentencing that was ‘due immediately.”
Id., Ex. F. On September 4, 2014, TCI responded,
stating as follows:
In Ward v. Chavez, 678 F.3d 1042 (9th Cir. 2012),
the Ninth Circuit held that where the sentencing court has
failed to consider whether the defendant has the financial
resources to pay restitution immediately, ordering immediate
payment impermissibly delegates to the BOP the court's
obligation to set a payment schedule. However, it appears you
have misread your J&C and the Ninth Circuit decision in
Ward v. Chavez. Ward v. Chavez dealt
specifically with restitution orders and only restitution
orders. Special assessments (felony assessments), Fines and
court costs, and State or local court obligations are not
included in the Ward v. Chavez ruling. Any court
imposed obligation in one or more of the aforementioned areas
will be handled by staff in accordance with the provisions
set forth in Program Statement 5308.08, and TCI Policy 4-B-2.
Therefore, staff will continue to monitor your progress in
meeting your court imposed financial obligation with regards
to your $3, 300.00 felony assessment. However, staff will not
collect any part of your $562, 239.78 restitution as the
sentencing court specifically set the schedule for payment of
the restitution to begin 30 days after placement on
supervised release in the amount of $300.00 per month.
The Ninth Circuit has held that the Bureau of Prison's
operation of the IFRP does not constitute an unlawful
delegation of authority and that an inmate's
participation in the IFRP is voluntary even though he may be
denied certain privileges if he refuses to join the program.
See United States v. Lemoine, 546 F.3d 1042, 1046
(9th Cir. 2008).
Based on the above, there is no basis for granting relief and
your request is denied. If you are dissatisfied with this
response, you may appeal to the Administrator, Privatization
Management Branch, Federal Bureau of Prisons, Building 400,
320 First St., NW, Washington DC 20534 on a BP-230 form, in
accordance with Policy. Your appeal must be received by the
Administrator, Privatization Management Branch within thirty
(3) calendar days of the date of the response, which includes
mail time. However, only those issues considered BOP issues
will be accepted.
Id., Ex. G.
August 29, 2014, Petitioner filed an appeal to the BOP's
Privatization Management Branch Administrator, therein
asserting that MTC employees were not permitted to use the
IFRP to collect payments from him because MTC is a privately
run prison. ECF No. 1 at 17.
October 9, 2014, the Administrative Remedy Coordinator,
Privatization Management Branch, sent Petitioner a rejection
notice, stating: “This issue is not appealable to the
BOP. You must use the grievance procedures at the facility.
You may appeal this rejection to the Central Office.”
ECF No. 1 at 16.
October 28, 2014, Petitioner filed a Central Office
Administrative Remedy Appeal. ECF No. 1 at 19. Therein, he
stated “this appeal focuses in the ultimate fallacy of
a rejection notice issued by PMB Administrator in its
response that ‘this issue is not appealable to the
BOP.' The PMB's Administrator Position is foreclosed
by the Ninth Circuit's recent published decision in
Ward v. Chavez … MTC staffers have not
provided any evidence that the sentencing court here has
produced a schedule for him … because the sentencing
court did not provide a schedule, MTC staffers lack authority
to collect restitution payments.” Id.
December 18, 2014, the Administrative Remedy Coordinator,
Central Office, sent Petitioner a rejection notice, stating
“your issue is not appealable to the BOP. You must use
the Grievance Procedures at your Facility.” ECF No. 1
March 3, 2015, Petitioner requested a review of his IFRP
repayment plan. ECF No. 12-1, Ex. H. On March 11, 2015, TCI
Warden Craig Apker responded as follows:
Records indicate the matter regarding your $3, 300 felony
assessment was appropriately addressed on the response to
Administrative Remedy 201481-F1 dated September 5, 2014.
However, you appear to be requesting a review of your $50.00
per month IFRP payment currently being made towards your
felony assessment...Records indicate your next program review
is currently ...