Dupree v. Attorney General of the United States

FILED UNITED STATES DISTRICT C()URT FoR THE nlsrmcr oF CoLUMBIA 959 " '* 2013 C|srk. U.S. D|su'lct & Blnkruptcy Gourts forum District of columbia aRiAN ALDRK:H DUPREE, ) ) Plaintiff, ) ) v_ ) civil A¢tion No. /3 ~'/ 7¢?{ l , ATToRNEY GENERAL, er az., ) ) Defendants. ) MEMoRANDUM oPlNloN This matter comes before the court on review of plaintiff s application to proceed in forma pauperis and pro se civil complaint. The application will be granted, and the complaint will be dismissed. Plaintiff’ s sentence includes an "order to pay $451,735 in restitution." Compl. at 3. lt appears that the sentencing court has ordered plaintiff to make restitution payments immediately and in accordance with the Inmate Financial Responsibility Plan ("IFRP"). See id., Ex. (Order, Unz'red Sta!es v, Dupree, No. l0-cr-O0094 (N.D. Ga. Oct. 7, 2013)). lt further appears that the sentencing order was amended to provide that, if plaintiff "cannot pay the restitution in full immediately, he shall begin making payments arnounting to 30% of any wages he may earn in prison." and that he "must begin making these payments immediately, once per month." Id., Ex. (Order at 4, Um`ted Stafes v. Dupree, No. lO-cr-00094 (N.D. Ga. June 24, 2013)). Plaintiff alleges that Federal Bureau of Prisons ("BOP") staff "cunningly coerced [him] into executing a contract to participate in the FBOP’s [IFRP]," z`d., even though the applicable regulation, see 28 C.F.R. § 545.11 , violates the separation of powers doctrine. Compl. at 6. He demands a court order striking down any provisions of the IFRP authorizing staf “to make, set or contract any payment amount or schedule, with regards to restitution, unless ordered expressly and specifically by the courts or initiated by the sentenced imnate . . . ." Ia'. at l0. [S]trictly speaking, participation in the [IFRP] is voluntary." United States v. Boyd, 608 F.3d 33l. 334 (7th Cir. 2010); see Um`ted States v. G'odoy, 706 F.3d 493, 499 (D.C. Cir. 2013). insofar as the IFRP merely executes the sentencing eourt’s order, however, such "collection activities, and establishing and modifying a payment schedule for criminal monetary penalties, are not essential attributes of thejudicial power that may be exercised only by the district court." Mujahid v. Crabtree, 999 F. Supp. 1398, 1403 (D. Or. 1998) (intemal quotation marks omitted), aff ’a’, 172 F.3d 57 (9th Cir. 1999). The regulation governing the lFRP, then, does not unlawfully delegate judicial power to the BOP. See Um`ted States v. Lemoirze, 546 F.3d 1042, 1046 (9th Cir. 2008) (holding that BOP’s operation of IFRP "does not constitute an unlawful delegation of authority to schedule restitution repayments in violation of the [Mandatory Victims Restitution Act]"); Bloch v. Lake, 183 F. App’x 47l , 471 (5th Cir. 2006) (per curiam) ("Because the sentencing court set the amount of restitution and ordered that the restitution was due immediately, there was no unconstitutional delegation of judicial authority."); Wez`nberger v. Um‘ted Stc:tes, 288 F.3d 346, 361 (6th Cir. 2001) (rejecting prisoner’s argument that district court improperly delegated authority for payment of restitution where "court ordered that [he] pay restitution through the terms and conditions of the IFRP"). Nor does the IFRP impermissibly establish consequences for an inmate’s refusal to participate. See Lemoine, 546 F.3d at 1046 (rejecting prisoner’s "argument that his participation in the IFRP was involuntary because he would have been denied certain privileges if he had refused to join the program"); Boyd, 608 id F.3d at 335 (noting that "a prisoner may choose instead to bear the consequences of not participating"); Young v. Augustz`ne, No. 5:11cv396, 2012 WL 6955480 , at *3 (N.D. Fla. Dec. 12, 2012) (concluding that "the consequences for declining to participate in the IFRP do not constitute such an ‘atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life’ that they invoke Petitioner‘s liberty interest"), adopted, 2013 WL 336733 (N.D. Fla. Jan. 29, 2013); Um`ted States v. Wfndrix, No. 02-CR-0l20, 2012 WL 1345491 , at *2 (N.D. Okla. Apr. 18, 2012) ("The fact that an inmate will suffer consequences for failure to participate in the IFRP does not render the program involuntary and/or unconstitutional . . . ."); Whitmore v. Ives, No. 09-1526, 2011 WL 6032395 , at *7 (E.D. Cal. Dec. 5, 2011) (denying habeas relief to petitioner claiming "that his participation in the IFRP was coerced because he would be rendered ineligible for certain privileges in prison if he declined to participate").l Accordingly, the Court will dismiss the complaint. An Order is issued separately. id 'l '1 f ,r United States District Judge ' DATE; 'Yl ¢,'\i_ 375 él.ol_“;~ ' insofar as plaintiff challenges the restitution provisions of the judgment and Commitment Order pursuant to which he is incarcerated, this matter properly is addressed to the sentencing court.