United States District Court, E.D. Virginia, Richmond Division
E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE.
Neal Scott, a federal prisoner proceeding pro se,
brings this petition pursuant to 28 U.S.C. §2241
("§2241 Petition, " ECF No. 7).The Magistrate
Judge recommended that the Court deny the § 2241
Petition and dismiss the action. Scott filed objections. (ECF
No. 25.) For the reasons that follow, Scott's objections
will be overruled and the Motion for Summary Judgment will be
REPORT AND RECOMMENDATION
Magistrate Judge made the following findings and
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.)
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 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.
Summary Judgment Standard
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)).
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.
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) .
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
Summary of Facts
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.
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 financial obligations. (ECF
No. 1-1, at 3.) Specifically, the agreement stated, in
A staff member has provided me with information regarding the
potential consequences of a refusal on my part to participate
in the Inmate Financial Responsibility Program.
I agree to submit payments towards satisfaction of the
financial obligation(s) indicated on this form in accordance
with the payment plan outlined below. I agree to follow this
payment plan until the financial obligation(s) is satisfied.
The agreement further detailed that Scott's first $25.00
payment would be due in March 2015. (Id.) On March
6, 2015, Scott made his first IFRP quarterly payment as
scheduled. (Williams Decl. 1 5; id. Attach. A, at
9.) Scott made subsequent quarterly IFRP payments in June,
September, and December of 2015; in March, June, September
and December of 2016; and in March and June of 2017.
(Id. Attach. A, at 10-14.) In March 2017,
Scott's obligation to pay the special assessment
terminated. (Williams Decl. ¶ 11.) All payments Scott
made after March 2017 were applied to his outstanding
On April 17, 2015, Scott submitted a Request for
Administrative Remedy to the BOP wherein he complained that,
although he had less than $450.00 in his inmate account for
the previous six months, he enrolled in the IFRP "per
[the] coerced payment contract." (ECF No. 1-1, at 5.)
Warden Wilson responded on May 21, 2015, stating, inter
The Bureau of Prisons implemented Program Statement 5380.08,
Financial Responsibility Program, Inmate, to assist inmates
in meeting their legitimate financial obligation. Based on
this policy, you met with your Unit Team and they assisted
you in setting up a financial plan to meet your court imposed
obligation. On November 18, 2014, you signed a contract to
make quarterly payments of $25.00. Program Statement 5380.08,
Financial Responsibility Program, Inmate, states, in part,
"Temporarily Exempt from Participation" will be
entered for an inmate who is unable to participate adequately
toward satisfaction of the obligation, ordinarily because of
medical or psychological restriction which prevents the
inmate from working. This assignment is at the Unit
Team's discretion and may also be used for an inmate who
is unable to secure employment in Unicor or advance beyond
maintenance pay ($5.25) due to conditions beyond the
inmate's control." Based on the above mentioned
factors, the Unit Team determined you are able to participate
in the FRP adequately. On March 6, 2015, you successfully
made your first payment of $25.00 towards your financial
appealed Warden Wilson's response to the Mid-Atlantic
Regional Director and then to the National Inmate Appeals
Administrator; both affirmed ...