Ybarra v. Federal Bureau of Prisons et al

Filing 92

ORDER - (1) The reference to the Magistrate Judge is withdrawn as to Defendants' Motion for Summary Judgment (Doc. 66 ), Plaintiff's Motion for Discovery (Doc. 87 ), and Plaintiff's Motion for Disposition (Doc. 90 ). (2) Defendant s' Motion for Summary Judgment (Doc. 66 ) is granted; Plaintiff's APA claim is dismissed as moot, and Plaintiff's Bivens claim is dismissed as time-barred. (3) Plaintiff's Motion for Discovery (Doc. 87 ) and Motion for Disposition (Doc. 90 ) are denied as moot. (4) The Clerk of Court must enter judgment accordingly and terminate the action. (See document for full details). Signed by Judge David G Campbell on 4/17/15. (LAD)

1
2

JDN

WO

3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Robert Ybarra,

10
11
12

No. CV 13-1126-PHX-DGC (JZB)
Plaintiff,

vs.

ORDER

Federal Bureau of Prisons, et al.,

13

Defendants.

14
Plaintiff Robert Ybarra brought this civil rights action pursuant to Bivens v. Six

15
16

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the

17

Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706 (Doc. 62). He sues six

18

Federal Bureau of Prisons (BOP) officials: (1) Cherry Phillips, Unit Manager at the

19

Federal Correctional Institution (FCI)-Phoenix; (2) Yolanda Fortune, Counselor at FCI-

20

Phoenix; (3) K. Mathesson, Case Manager at FCI-Phoenix; (4) T. Simmons, Counselor at

21

FCI-Phoenix; (5) Robert E. McFadden, BOP Western Regional Director; and (6) Harrell

22

Watts, BOP Administrator (id.). Plaintiff alleges that Defendants violated his Fifth

23

Amendment due-process rights when they unlawfully seized funds from his inmate

24

account (id. at 5). Before the Court is Defendants’ Motion for Summary Judgment (Doc.

25

66).1

26
27
1

28

Also before the Court are Plaintiff’s Motion for Discovery (Doc. 87), and
Plaintiff’s Motion for Disposition, which asks that Court to rule on his discovery motion
(Doc. 90). These two motions will be denied as moot.

1

The Court will grant the motion, dismiss Plaintiff’s APA and Bivens claims, and

2

terminate the action.

3

I.

Background

4

A.

5

Plaintiff’s claim concerns the seizure of funds pursuant to the Inmate Financial

6

Responsibility Program (IFRP) (Doc. 62). In 1987, the BOP implemented the IFRP, a

7

“voluntary” program whereby inmates’ in-prison income is applied to their financial

8

obligations, including fines, court costs, and restitution. See 28 C.F.R. §§ 545.10-545.11.

9

Although the program is voluntary, failure to participate results in numerous deleterious

10

effects, e.g., loss of furlough, eligibility for job assignments, performance pay, housing

11

priority, access to community-based programs, etc. See 28 C.F.R. § 545.11(d).

12

Applicable BOP Policy and Federal Statute

The Mandatory Victims Restitution Act of 1996 (MVRA) requires that the district

13

court, in an order of restitution, award each victim the full amount of their loss, regardless

14

of the defendant’s economic circumstances. 18 U.S.C. § 3664(f)(1)(A). Under the Act,

15

once the amount of restitution owed to each victim is determined, “the court shall,

16

pursuant to section 3572, specify in the restitution order the manner in which, and the

17

schedule according to which, the restitution is to be paid . . . .” 18 U.S.C. § 3664(f)(2).

18

The MVRA charges the district court with setting the terms of the restitution payments

19

and that duty cannot be delegated. United States v. Gunning, 401 F.3d 1145, 1149-50

20

(9th Cir. 2005) (“Gunning II”) (citing United States v. Gunning, 339 F.3d 948, 949 (9th

21

Cir. 2003) (“Gunning I”)). Although the MVRA prohibits courts from delegating the

22

responsibility to set restitution payment schedules, nothing in the statute or case law

23

limits the operation of an independent program like the IFRP, which helps inmates

24

develop financial plans and encourages them to voluntarily make restitution payments

25

above what is mandated in their sentencing orders. United States v. Lemoine, 546 F.3d

26

1042, 1048-49 (9th Cir. 2008).

27

//

28

//

-2-

1

B.

2

In November 2007, Plaintiff was transferred to FCI-Phoenix (Doc. 62 at 5). In

Plaintiff’s Participation in the IFRP

3

May 2008, he was hired by the Federal Prison Industries, referred to as UNICOR (id.).

4

Around that time, Plaintiff was told that he must agree to participate in the IFRP or suffer

5

consequences, which included losing his UNICOR job (id.). He therefore signed an IFRP

6

contract, which required 50% of his wages to be paid towards restitution through the

7

IFRP (id.).

8
9

Plaintiff filed an administrative remedy challenging the IFRP withdrawals on the
ground that his sentencing order did not set the amount and schedule for restitution

10

payments (id. at 5-6). His administrative remedy was denied at every level, and Watts

11

denied his final Central Office appeal on July 15, 2009 (id. at 6).

12

C.

13

On July 8, 2009, Plaintiff filed a Petition for Writ of Habeas Corpus under 28

Petition for Writ of Habeas Corpus

14

U.S.C. § 2241, arguing that the BOP wrongfully collected restitution payments from him

15

under the IFRP without a lawful sentencing order as required by the MVRA. CV 09-

16

1447-PHX-DGC (JRI), Doc. 1. On December 21, 2010, the Court granted the Petition,

17

finding that the restitution order issued by the sentencing court was an invalid delegation

18

to the BOP and ordered the BOP to stop collecting restitution payments from Plaintiff.

19

Id., Doc. 15 at 3-4. In its Order, the Court denied Plaintiff’s request that the BOP return

20

the amounts already collected from him because he failed to present any argument or

21

legal authority to support his request. Id. at 4. According to Defendants, the amounts

22

collected from Plaintiff between May 2008 and December 2010 totaled $3,178.75

23

(Doc. 65, Defs.’ Statement of Facts (DSOF) ¶¶ 10, 12).

24

Plaintiff then filed a motion for an order to show cause why the respondent should

25

not be held in contempt for failing to comply with the December 21, 2010 Order. CV 09-

26

1447-PHX-DGC (JRI), Doc. 17. Plaintiff stated that after the Court granted his Petition,

27

the BOP placed him on IFRP refusal status and sanctioned him by removing him from his

28

UNICOR job. Id. Plaintiff was told that if he wanted to be removed from IFRP refusal

-3-

1

status, he had to enter another contract to agree to pay restitution under the IFRP. Id. He

2

therefore signed a new contract in January 2011 and returned to his UNICOR job.2 Id.

3

The Court denied Plaintiff’s motion for an order to show cause, finding that

4

nothing in its December 21, 2010 Order precluded BOP from placing Plaintiff on refusal

5

status and that federal statutes permitted the BOP to implement a financial plan and

6

impose penalties if an inmate refuses to participate. CV 09-1447-PHX-DGC (JRI),

7

Doc. 20.

8

Plaintiff appealed the denial of his motion to the Ninth Circuit Court of Appeals.

9

Id., Doc. 23. On January 19, 2012, the Ninth Circuit affirmed the district court’s denial

10

of the motion and, on March 13, 2012, the Ninth Circuit issued its Mandate and the

11

judgment took effect. Id., Doc. 28 (No. 11-15874). The appellate court stated that,

12

although the BOP began collecting restitution payments again after the December 21,

13

2010 Order, these payments were collected after Ybarra voluntarily entered into a new

14

contract and agreed to participate in the IFRP. Id.

15

D.

16

On May 24, 2013, Plaintiff initiated the present lawsuit pursuant to Bivens and the

Complaint

17

APA (Doc. 1). He filed his First Amended Complaint on August 11, 2014 (Doc. 62).

18

Plaintiff alleged that Fortune and Simmons forced him to participate in the IFRP without

19

a lawful sentencing order that set a payment schedule and amount of payment for

20

restitution and, consequently, they violated his due process rights under the Fifth

21

Amendment (id. at 5-7). Plaintiff alleged that Matheson and Phillips failed to stop the

22

unlawful taking of his money despite being notified of the violation and therefore also

23

violated Plaintiff’s due process rights (id.). And Plaintiff claimed that McFadden and

24

Watts failed to correct the due process violations by the FCI-Phoenix employees and thus

25
26
2

27
28

Pursuant to this new IFRP contract signed in January 2011, restitution payments
began again in February 2011 (see Doc. 65, DSOF ¶ 16; Doc. 79, Pl.’s Controverting
Statement of Facts ¶ 16 & Pl.’s Statement of Fact ¶ 4).

-4-

1

violated his due process rights (id.). Plaintiff sued for compensatory and punitive

2

damages (id. at 10).

3

E.

4

On October 9, 2014, Defendants filed their Motion for Summary Judgment

5

(Doc. 66). They seek judgment on the grounds that (1) the APA claim must be dismissed

6

because Plaintiff seeks only monetary relief; (2) Plaintiff’s Bivens claims are untimely;

7

(3) Defendants are entitled to absolute immunity; and (4) Defendants are entitled to

8

qualified immunity (Doc. 66).

9

Motion for Summary Judgment

The Court issued the Notice required under Rand v. Rowland, 154 F.3d 952, 962

10

(9th Cir. 1998) (en banc), which informed Plaintiff of the requirements under Federal

11

Rule of Civil Procedure 56 (Doc. 67). In November 2014, Plaintiff filed his opposition to

12

the Motion for Summary Judgment (Doc. 78), and he subsequently filed a Motion for

13

Discovery and a Motion for Disposition (Docs. 87, 90).

14

II.

Summary Judgment Standard

15

A court must grant summary judgment “if the movant shows that there is no

16

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

17

of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

18

(1986). The movant bears the initial responsibility of presenting the basis for its motion

19

and identifying those portions of the record, together with affidavits, if any, that it

20

believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at

21

323.

22

If the movant fails to carry its initial burden of production, the nonmovant need

23

not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d

24

1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the

25

burden shifts to the nonmovant to demonstrate the existence of a factual dispute and that

26

the fact in contention is material, i.e., a fact that might affect the outcome of the suit

27

under the governing law, and that the dispute is genuine, i.e., the evidence is such that a

28

reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby,

-5-

1

Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d

2

1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact

3

conclusively in its favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-

4

89 (1968); however, it must “come forward with specific facts showing that there is a

5

genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

6

U.S. 574, 587 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1).

7

At summary judgment, the judge’s function is not to weigh the evidence and

8

determine the truth but to determine whether there is a genuine issue for trial. Anderson,

9

477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and

10

draw all inferences in the nonmovant’s favor. Id. at 255. The court need consider only

11

the cited materials, but it may consider any other materials in the record. Fed. R. Civ. P.

12

56(c)(3).

13

III.

14

Administrative Procedure Act
The APA authorizes suits for declaratory or injunctive relief, but it does not

15

provide for money damages. 5 U.S.C. §§ 702, 703; see King v. U.S. Dep’t of Veterans

16

Affairs, 728 F.3d 410, 416 (9th Cir. 2013). Plaintiff sues for money damages; he does not

17

seek injunctive relief. Even so, any claim for injunctive relief would be moot because the

18

BOP terminated unauthorized deductions in accordance with the December 21, 2010

19

habeas Order, and it was determined that the IFRP contracts between the BOP and

20

Plaintiff after that date were voluntary. CV 09-1447-PHX-DGC (JRI), Doc. 28.

21

Consequently, only declaratory relief is appropriate. Plaintiff did not seek

22

declaratory relief (Doc. 62 at 10). Plaintiff has nonetheless already received declaratory

23

relief based upon the Court’s prior determination that the BOP improperly established a

24

restitution schedule and deducted restitution from Plaintiff’s account. Under these

25

circumstances, the Court will dismiss Plaintiff’s APA claim as moot.

26

IV.

27
28

Statute of Limitations
The statute of limitations for a Bivens action is defined by the relevant state’s

personal injury statute. Van Strum v. Lawn, 940 F.2d 406, 410 (9th Cir. 1991). Under

-6-

1

Arizona law, the statute of limitations for personal injury actions is two years. Ariz. Rev.

2

Stat. § 12-542.

3

Although state law provides the statute of limitations, federal law determines when

4

a civil rights claim accrues. Morales v. City of L.A., 214 F.3d 1151, 1154 (9th Cir. 2000).

5

Under federal law, the time limit on a cause of action begins to run when the plaintiff

6

“knows or has reason to know of the injury which is the basis of the action.” Trotter v.

7

Int’l Longshoremen’s & Warehousemen’s Union Local 13, 704 F.2d 1141, 1143 (9th Cir.

8

1983).

9

Defendants argue that the statute of limitations began to run on Plaintiff’s Bivens

10

claim when each Defendant took action to have money taken from his account or failed

11

to put a stop to the removal of money from his account or, at the latest, on December 21,

12

2010, when the Court entered its order granting Plaintiff’s habeas Petition (Doc. 66 at 6-

13

7).3 Defendants maintain that since all those dates—when Defendants acted and when

14

the Petition was granted—occurred more than two years before Plaintiff filed this Bivens

15

action (in May 2013), the action is untimely (id.). Plaintiff counters that his claim

16

constitutes a “continuing violation” because the BOP continued to take money from his

17

account under the IFRP and did so until December 16, 2011 (Doc. 78 at 3-5). Thus,

18

Plaintiff submits that the statute of limitations began to run on December 16, 2011, which

19

is within two years of the date he filed his Complaint (id. at 5).4

20

In Plaintiff’s habeas action, it was determined that only the restitution payments

21

collected prior to the December 21, 2010 Order were unauthorized, and that when the

22

BOP collected restitution payments again thereafter, it was because Plaintiff voluntarily

23

entered into a new contract and agreed to participate in the IFRP. CV 09-1447-PHX-

24
3

25
26

In their reply, Defendants specifically argue that the limitations period began to
run on July 15, 2009, the date Watts denied Plaintiff’s Central Office appeal (Doc. 81 at
4).
4

27
28

Plaintiff concludes that the statute of limitations commenced on December 16,
2014, but this appears to be a typo given his argument and the record showing that
pursuant to a new contract entered into after December 21, 2010, Plaintiff made
payments through the IFRP from February to December 2011 (Doc. 78 at 3-5; Doc. 65,
DSOF ¶¶ 16-19).
-7-

1

DGC (JRI), Docs. 15, 20, 28. Accordingly, Plaintiff’s “continuing violation” argument

2

fails.

3

Although Plaintiff suspected in 2008 and 2009 that Defendants were unlawfully

4

taking his money through the IFRP, that suspicion was based on what he had been told by

5

another inmate (Doc. 62 at 5). “A claim does not accrue when a person has a mere

6

hunch, hint, suspicion, or rumor of a claim[.]” McIntyre v. United States, 367 F.3d 38, 52

7

(1st Cir. 2004) (quoting Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998)).

8

The Court finds that Plaintiff actually knew or had reason to know that Defendants’

9

actions were unlawful on December 21, 2010, when the Court entered its Order granting

10

his habeas Petition. See CV 09-1447-PHX-DGC (JRI), Doc. 15. That is the date he

11

learned of his injury and his Bivens claim accrued.

12

That does not end the inquiry, however, because the Court is required to apply any

13

state rule for tolling to a claim brought under Bivens. See Papa v. United States, 281

14

F.3d 1004, 1009 (9th Cir. 2002) (tolling provisions for Bivens claims are borrowed from

15

the forum state). Arizona law provides for the tolling of the statute of limitations for the

16

period during which a plaintiff was less than 18 years old or of unsound mind. Ariz. Rev.

17

St. § 12-502. The limitations period is also tolled during mandatory exhaustion of

18

administrative remedies. See Ariz. Rev. Stat. § 12-821.01(c); Brown v. Valoff, 422 F.3d

19

926, 943 (9th Cir. 2005). And Arizona courts recognize equitable exceptions to the

20

application of a statute of limitations when necessary to prevent injustice. Nolde v.

21

Frankie, 964 P.2d 477, 480 (Ariz. 1998). Under Arizona’s equitable tolling doctrine, a

22

plaintiff may sue after the statutory time period for filing a complaint has expired if he

23

was prevented from filing in a timely manner due to sufficiently inequitable

24

circumstances. McCloud v. State, 170 P.3d 691, 696 (Ariz. App. 2007).

25

In this case, there is a question whether Plaintiff’s appeal in his habeas action

26

tolled the statute of limitations. The Ninth Circuit did not rule on Plaintiff’s appeal until

27

January 2012, and the Mandate did not take effect until March 2012. Ybarra, No. 11-

28

-8-

1

15874 (9th Cir. March 13, 2012). Because these dates fall within the two-year limitations

2

period, if the appeal warrants tolling, Plaintiff’s Bivens claim is not time-barred.

3

But the Ninth Circuit has held that habeas corpus proceedings do not delay accrual

4

of § 1983 or Bivens claims. Bagley v. CMC Real Estate Corp., 923 F.2d 758, 761 (9th

5

Cir. 1991). The plaintiff in Bagley was convicted in 1977 for narcotics convictions. Id.

6

at 759. In May 1980, while in prison, he obtained information through the Freedom of

7

Information Act and learned that, contrary to the information given to him by the

8

government before his trial, two government witnesses received compensation for their

9

assistance. Id. On that basis, the plaintiff filed a motion under 28 U.S.C. § 2255 to

10

vacate his conviction, and in 1986, after a reversal and remand by the Supreme Court, the

11

Ninth Circuit provided habeas relief and reversed the conviction based on the

12

government’s failure to disclose impeachment evidence. Id. In 1988, the plaintiff filed

13

civil rights actions against the offending state and federal officials. Id. The Ninth Circuit

14

found that the plaintiff’s § 1983 and Bivens claims accrued for statute of limitations

15

purposes when he first learned of the injury giving rise to his claims, which was in May

16

1980 when he learned that government witnesses were given compensation, and not in

17

1986, when his conviction was reversed. Id. at 760, 762. The plaintiff’s civil rights

18

claims brought in 1988 were therefore time-barred. Id. (applying Washington’s three-

19

year statute of limitations).5

20

The Court finds that Plaintiff’s subsequent motion and appeal in his habeas

21

proceeding do not constitute grounds for equitable tolling because the habeas proceeding

22

did not delay accrual of his Bivens claim. See Bagley, 923 F.2d at 761-62. Nor did the

23

pendency of his appeal prevent him from filing his Bivens action. See Rhodes v. Chavez,

24

CV 12-1971-PHX-DGC, 2013 WL 5780839, at *2 (D. Ariz. Oct. 25, 2013) (finding the

25

plaintiff’s Bivens claim was time-barred and rejecting argument that claim did not accrue

26

until Supreme Court denied certiorari on his petition for a writ of habeas corpus; because

27
5

28

Under Washington law, the statute of limitations was tolled while Bagley was in
prison, and, thus, it did not begin to run until July 9, 1982, upon his release. 923 F.2d at
763. But this tolling did not save his claim from being time-barred.
-9-

1

the plaintiff did not challenge his conviction or sentence, the plaintiff was not prevented

2

from bringing his Bivens claim during the pendency of his habeas corpus petition).

3

In short, Plaintiff learned of his injury underlying his Bivens action when the Court

4

granted his habeas Petition on December 21, 2010; therefore, that is the date his claim

5

accrued. He did not file this action until May 24, 2013, more than two years later, and no

6

tolling provision applies (see Doc. 1). Accordingly, Plaintiff’s Bivens claim is time-

7

barred and will be dismissed on this basis.

8
9
10
11

The Court need not address Defendants’ remaining arguments regarding absolute
and qualified immunity.
V.

Pending Motions
Plaintiff’s Motion for Discovery seeks all documents related to the restitution

12

withdrawn from his account by FCI-Phoenix, all e-mails related to his restitution

13

payments, and all contracts concerning his IFRP plans (Doc. 87). This evidence is not

14

relevant to any ground for tolling the statute of limitations; therefore, it would not affect

15

the conclusion that Plaintiff’s Bivens claim is time-barred. The remaining motions will

16

be denied as moot.

17

IT IS ORDERED:

18

(1)

The reference to the Magistrate Judge is withdrawn as to Defendants’

19

Motion for Summary Judgment (Doc. 66), Plaintiff’s Motion for Discovery (Doc. 87),

20

and Plaintiff’s Motion for Disposition (Doc. 90).

21

(2)

Defendants’ Motion for Summary Judgment (Doc. 66) is granted;

22

Plaintiff’s APA claim is dismissed as moot, and Plaintiff’s Bivens claim is dismissed as

23

time-barred.

24
25

(3)

Plaintiff’s Motion for Discovery (Doc. 87) and Motion for Disposition

(Doc. 90) are denied as moot.

26
27
28

- 10 -

1
2
3

(4)

The Clerk of Court must enter judgment accordingly and terminate the

action.
Dated this 17th day of April, 2015.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

- 11 -