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Scott v. Wilson

United States District Court, E.D. Virginia, Richmond Division

January 24, 2018

ANDREW NEAL SCOTT, Petitioner,
v.
ERIC C. WILSON, Respondent.

          REPORT AND RECOMMENDATION

          Roderick C. Young United States Magistrate Judge

         Andrew Neal Scott, a federal inmate proceeding pro se, filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 ("§ 2241 Petition, " ECF No. 7) .[1] The matter is before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b). In his § 2241 Petition, Scott challenges the collection of his restitution pursuant to the Bureau of Prisons's ("BOP") Inmate Financial Responsibility Program ("IFRP"). (§ 2241 Pet. 10-15.) Specifically, the Court construes Scott's claims as follows:

Claim One
Scott's restitution is collected through the BOP's IFRP in violation of his Judgment and Commitment Order ("J&C Order"). (Id. at 11-12.)
Claim Two
Scott's restitution is collected through the BOP's IFRP in violation of BOP Program Statement 5380.08. (Id. at 12-13)
Claim Three
Scott's restitution is collected through the BOP's IFRP in violation of 28 C.F.R. § 545.11(b). (Id. at 14.)
Claim Four
Scott's participation in the IFRP is involuntary. (Id. at 12.)

         Respondent has filed a Motion to Dismiss, or in the alternative, a Motion for Summary Judgment ("Motion for Summary Judgment, " ECF No. 19). Scott received Roseboro[2] notice, (ECF No. 21), and has responded ("Response, " ECF No. 23). For the reasons that follow, it is RECOMMENDED that Scott's § 2241 Petition be DENIED.

         A. Summary Judgment Standard

         Summary judgment must be rendered "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the responsibility to inform the court of the basis for the motion, and to identify the parts of the record which demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). * [W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted). When the motion is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits or "'depositions, answers to interrogatories, and admissions on file, ' designate 'specific facts showing that there is a genuine issue for trial.'" Id. (quoting former Fed.R.Civ.P. 56(c) and 56(e) (1986)).

         In reviewing a summary judgment motion, the court "must draw all justifiable inferences in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, a mere scintilla of evidence will not preclude summary judgment. Anderson, 477 U.S. at 251 (citing Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)). "' [T] here is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party . . . upon whom the onus of proof is imposed.'" Id. (quoting Munson, 81 U.S. at 448). Furthermore, "[i]n determining a motion for summary judgment, the Court may assume that facts identified by the moving party in its listing of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." E.D. Va. Loc. Civ. R. 56(B).

         In support of his Motion for Summary Judgment, Respondent submitted a Declaration of Genna D. Petre, an attorney with the Department of Justice at Federal Correctional Complex Butner ("Petre Decl., " ECF No. 20-1), and documents detailing Scott's inmate data and history, prison work history, and administrative appeals (Id. Attach. A-E, ECF Nos. 20-2 through 6) . Respondent has also submitted a Declaration of Kathy Williams, Unit Manager at Federal Correctional Complex ("FCC") Petersburg ("Williams Decl., " ECF No. 20-7), and documents detailing Scott's prison financial account and his court-ordered restitution and special assessment (Id. Attach. A-D, ECF Nos. 20-8 through 11).

         As a general rule, a non-movant must respond to a motion for summary judgment with affidavits or other verified evidence. Celotex Corp., 477 U.S. at 324. Scott submitted a sworn Declaration in response to Respondent's Motion for Summary Judgment. ("Scott Decl., " ECF No. 23-1). Further, Scott's § 2241 Petition is sworn to under penalty of perjury and therefore may be considered in opposition to Respondent's Motion for Summary Judgment. See Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). Scott's original § 2241 petition was not filed on the standardized form required for filing a habeas action. By Memorandum Order entered on October 13, 2016, the Court informed Scott that, in order to pursue a habeas action in this Court, he must file such petition on the standardized form. The Court mailed Scott the standardized form for filing a § 2241 petition and informed him that he could not incorporate any other documents by reference. (ECF No. 3.) Nevertheless, when Scott filed the standardized form for filing a § 2241 petition, he failed to reattach the exhibits that he filed with his original petition. (See ECF No. 7.) However, because Respondent references Scott's exhibits, the Court will consider these exhibits in its assessment of the propriety of summary judgment. (See ECF No. 1-1.) Scott included with his original § 2241 petition: (1) a copy of page one of his J&C Order (ECF No. 1-1, at 1); (2) a copy of his Inmate Skills Development Plan dated August 26, 2016 (id. at 2); (3) a copy of his IFRP agreement (id. at 3); (4) a copy of his TRUFONE account record dated August 26, 2016 (id. at 4); and (5) copies of his grievances and appeals (id. at 5-12) . In light of the foregoing principles and submissions, the following facts are established for the purposes of the Motion for Summary Judgment. All permissible inferences are drawn in favor of Scott.

         B. Summary of Facts

         On March 9, 2012, the United States District Court for the Central District of California sentenced Scott to 360 months imprisonment for child exploitation enterprise and production of child pornography. (Petre Decl. ¶ 4.) The J&C Order entered on the day of Scott's sentencing ordered him to pay a $300 special assessment and $400, 000 in restitution. (ECF No. 1-1, at 1.) Specifically, the J&C Order stated, in relevant part:

Restitution shall be due during the period of imprisonment, at the rate of not less than $15 per quarter, and pursuant to the Bureau of Prisons' Inmate Financial Responsibility Program. . . . Nominal restitution payments are ordered as the Court finds that the defendant's economical circumstances do not allow for either immediate or future payment of the amount ordered.

(Id.)

         On April 16, 2013, Scott was transferred to FCC Petersburg in Virginia. (Petre Decl. ¶ 5.) On May 9, 2013, Scott first became employed at FCC Petersburg. (Id. ¶ 6; id. Attach. C.) Scott "worked a variety of different jobs, but did not have a break in employment until September 24, 2015." (Id. ¶ 6.) "From September 24, 2015 through October 23, 2015, [] Scott was temporarily unemployed, " but he regained employment on October 23, 2015 and has "continued to hold that position to date." (Id.) In the six months leading up to April 2017, "Scott's payroll deposits have averaged about $27.20 a month." (Williams Decl. ¶ 6; id. Attach. A, at 14-15.) Scott works a non-UNICOR job at FCC Petersburg. (Resp. 7.)

         On October 14, 2013, Scott was reviewed for the IFRP but was placed on "exempt tmp status because his six month deposit was below [$]450.00." (ECF No. 1-1, at 2.) Scott was again reviewed for the IFRP on January 2, 2014 and April 9, 2014 but remained in "exempt tmp" status. (Id.) On November 18, 2014, Scott signed an IFRP agreement wherein he agreed that he would pay $25.00 per quarter towards his court-ordered ...


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