Kelley v. Federal Bureau of Prisons, 93-3169-RDR.

• Decision Date: 20 October 1993
• Docket Number: No. 93-3169-RDR.,93-3169-RDR.
• Citation: 835 F. Supp. 1316
• Court: U.S. District Court — District of Kansas
• Parties: Dillard E. KELLEY, Sr., Plaintiff, v. FEDERAL BUREAU OF PRISONS, et al., Defendants.

835 F. Supp. 1316

Dillard E. KELLEY, Sr., Plaintiff, v. FEDERAL BUREAU OF PRISONS, et al., Defendants.

No. 93-3169-RDR.

United States District Court, D. Kansas.

October 20, 1993.

Dillard E. Kelley, pro se.

Annette B. Gurney, Office of U.S. Atty., Wichita, KS, for defendants.

MEMORANDUM AND ORDER

ROGERS, District Judge.

Plaintiff appears pro se and proceeds in forma pauperis on a Bivens complaint filed under 28 U.S.C. § 1331.¹ Before the court is defendant's MOTION TO DISMISS (Doc. 25) and plaintiff's response thereto (Doc. 28). Because documents beyond the complaint have been submitted and are considered by the court, defendant's motion is treated as a motion for summary judgment. Miller v. Glanz, 948 F.2d 1562 (10th Cir.1991).

Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Maughan v. SW Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir.1985). Although the court must resolve all factual disputes and draw all inferences in favor of the nonmoving party, Reazin v. Blue Cross & Blue Shield of Kansas, Inc., 899 F.2d 951, 979 (10th Cir.), cert. denied, 497 U.S. 1005, 110 S.Ct. 3241, 111 L.Ed.2d 752 (1990), a party opposing a motion for summary judgment may not rest on mere allegations or denials to demonstrate there is a genuine issue of material fact for trial, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). Where the moving party demonstrates an absence of genuine issue of material fact, the nonmoving party must come forward with specific facts showing there is a genuine issue for trial. Fed. R.Civ.P. 56(e); Abercrombie v. City of Catoosa, Okl., 896 F.2d 1228, 1230 (10th Cir.1990). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The summary judgment rule is to be interpreted in a way that allows the court to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

In the present case, plaintiff was sentenced in 1989 to a term of imprisonment, and to pay a fine of one million dollars and a special assessment of $50. While incarcerated at United States Penitentiary in Leavenworth, Kansas (USPLVN), plaintiff refused to pay anything toward his court imposed fine. Plaintiff seeks a court determination that he was wrongfully placed on refusal status under the Inmate Financial Responsibility Program (IFRP), and he seeks injunctive relief to prevent prison officials from designating plaintiff as refusing to comply with IFRP. Plaintiff also seeks damages for alleged physical and emotional suffering which plaintiff claims resulted when plaintiff was denied certain prison privileges while in "Refusal" status.

The record reflects that plaintiff's special assessment was paid in November 1989. On July 30, 1993, plaintiff's status was changed from "Refusal" to "Participation" after plaintiff submitted to USPLVN officials copies of a third party's Writ of Continuing Garnishment against proceeds due plaintiff on a land contract, and it was determined this garnishment could satisfy plaintiff's IFRP obligation. Plaintiff's request for injunctive relief, therefore, is now moot.

To establish a Bivens cause of action, a party must have some evidence to support finding that a federal agent acting under color of such authority violated some cognizable constitutional right of plaintiff. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See also Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277, reh'g denied, ___ U.S. ___, 111 S.Ct. 2920, 115 L.Ed.2d 1084 (1991) (conduct alleged must rise to the level of a constitutional violation to support Bivens claim). In the present case, the court finds no such violation.

The court rejects plaintiff's conclusory claim that defendants conspired to coerce or extort payment from plaintiff through the IFRP. The Inmate Financial Responsibility Program establishes a procedure for encouraging inmates to pay their legitimate financial obligations. 28 C.F.R. § 545.10. During the inmate's initial classification, the inmate and the inmate's unit team are to develop a financial repayment plan. Id. An inmate's compliance with the repayment plan is to be monitored by unit staff. 28 C.F.R. § 545.11 "Fines and court costs" are specifically included in the obligations that are subject to the inmate's IFRP plan. 28 C.F.R. § 545.11(a)(3). The regulation details the consequences if an inmate refuses to participate in IFRP or to comply with the inmate's financial plan. 28 C.F.R. § 545.11(d). See Johnpoll v. Thornburgh, 898 F.2d 849, 851 (2nd Cir.1990) (IFRP serves valid penological interests and is consistent with BOP's authorization, under direction of Attorney General, to provide rehabilitation and reform).

The heart of plaintiff's complaint appears to be his claim that he is not required to pay on his court imposed fine because the sentencing court did not set a repayment plan. Instead, plaintiff contends the sentencing court recognized that plaintiff would not be able to pay the fine. The court finds plaintiff's claim is based on too narrow a reading of the prison regulations, and on too broad a reading of the sentencing court's comments.

The regulation at issue simply reads that an inmate's financial plan will include "... (3) Fines and court costs ..." 28 C.F.R. § 545.11(a)(1...