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Trifu v. Apker

United States District Court, E.D. California

July 7, 2017

DORU GABRIEL TRIFU, Petitioner,
v.
CRAIG APKER, Warden, Respondent.

          REQUEST FOR RESPONDENT TO PROVIDE SUPPLEMENTAL BRIEFING

          LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE

         In 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 plan.

         It 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.

         On 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.[1]

         On 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.

         On 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.

         On 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 at 18.

         On 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 ...

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