Salanardi v. Graber

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS 10 . The Magistrate Judge's Report and Recommendation (Doc. 10) is accepted and adopted as the findings of fact and conclusions of law of this Court. IT IS FURTHER ORDERED that Respondents Motion to Dismiss (Doc. 7) is GRANTED and the Petition (Doc. 1) is DENIED. The Clerk of Court shall enter judgment accordingly. Signed by Judge David C Bury on 6/8/11. (KAH)

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1 WO 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF ARIZONA 6 7 8 9 10 11 12 ) ) ) Petitioner, ) v. ) ) Conrad Graber, Warden ) ) Respondant. ) ______________________________________ ) Vincent Salanardi, CIV-10-704-TUC-DCB ORDER 13 14 This matter was assigned to Magistrate Judge Glenda E. Edmonds on December 1, 15 2010. LRCiv. 72.1(a). On April 18, 2011, the Magistrate Judge issued a Report and 16 Recommendation (R&R). She recommends granting Respondent’s Answer and Motion to 17 Dismiss (R’s MD) the Petition alleging that the Bureau of Prisons (BOP) improperly raised 18 his restitution payments and imposed sanctions when he refused to pay the increased amount. 19 The Court accepts and adopts the Magistrate Judge’s R&R as the findings of fact and 20 conclusions of law of this Court and dismisses the Petition Under 28 U.S.C. § 2241 for a 21 Writ of Habeas Corpus by a Person in Federal Custody (Petition). 22 23 STANDARD OF REVIEW The duties of the district court in connection with a R&R by a Magistrate Judge 24 are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 25 636(b)(1). The district court may “accept, reject, or modify, in whole or in part, the 26 findings or recommendations made by the magistrate judge.” Fed. R. Civ. P. 72(b), 28 27 U.S.C. § 636(b)(1). Where the parties object to a R&R, “[a] judge of the [district] court 28 shall make a de novo determination of those portions of the [R&R] to which objection is 1 made.” 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149-150 (1985). When no 2 objections are filed, the district court need not review the R&R de novo. 3 This district court’s ruling is a de novo determination as to those portions of the 4 R&R to which there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 5 F.3d 992, 1000 n. 13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121- 6 22 (9th Cir. 2003) (en banc). To the extent that no objection has been made, arguments to 7 the contrary have been waived. Fed. R. Civ. P. 72; see 28 U.S.C. § 636(b)(1) (objections 8 are waived if they are not filed within fourteen days of service of the Report and 9 Recommendation), see also McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) 10 (failure to object to Magistrate’s report waives right to do so on appeal); Advisory 11 Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 12 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the court need only 13 satisfy itself that there is no clear error on the face of the record in order to accept the 14 recommendation). 15 The parties were sent copies of the R&R and instructed that, pursuant to 28 16 U.S.C. § 636(b)(1), they had 14 days to file written objections. Fed. R. Civ. P. 72. The 17 Court has considered the Objection filed by the Petitioner, the R&R, and the parties’ 18 documents considered by the Magistrate Judge with respect to the Objections. OBJECTIONS 19 20 On April 29, 2011, Petitioner filed an Objection to the R&R raising specific 21 objections as follows: that the Magistrate Judge failed to consider certain case law with 22 respect to denying the Petition and failed to consider the totality of all the issues 23 Petitioner previously set forth in his Petition and Declaration in Opposition to the Motion 24 to Dismiss. 25 This Court finds that the record in this case fully supports the Magistrate Judge’s 26 conclusion to deny the Petition. The objections mirror arguments Petitioner made in his 27 Petition and Declaration, except he identifies two cases that he did not previously 28 2 1 mention: West v. Thomas, 388 Fed.Appx. 742 (9th Cir. 2010), and United States v. Munoz, 2 610 F.3d 989, 997 (7th Cir. 2010). 3 According to Petitioner, West held that “the language of the Judgment and 4 Commitment is still paramount, controlling any efforts by the BOP to collect funds under 5 the [Inmate Financial Responsibility Program (IFRP)], and requiring a case by case 6 analysis.” (P’s Objections at 1.) However, West only stated that a sentencing court may 7 not improperly delegate “its scheduling duties to the BOP by not setting a repayment 8 schedule.” West, 388 Fed.Appx at 743. There is no commensurate failure by the trial 9 court to set a schedule for repayment in the instant case. The Court ordered the following: 10 “$35,000 due immediately and to be paid at a rate of at least $25 per quarter while in 11 custody and at a rate of at least 25% of net disposable income per month while on 12 supervised release.” (R’s MD at 5 (citing Judgment and Commitment (J&C) at 6.)) 13 Petitioner also argues that where the sentencing court orders participation in the 14 IFRP, this technically renders participation in the program “involuntary,” and is an error 15 on the part of the court. (P’s Objections at 3 (citing Munoz, 610 F.3d at 997)). However, 16 the sentencing court ordered: “All criminal monetary penalties, except those payments 17 made through the Federal Bureau of Prisons’ Inmate Financial Responsibility Program, 18 are made to the clerk of the court.” (R’s MD at 5 (citing J&C at 6.) (emphasis added)). 19 As the R&R states, “The fact that Salanardi is subject to sanctions if he does not 20 participate in the IFRP does not change the voluntary nature of the program.” R&R at 3. 21 If payments are made through the IFRP, they satisfy Petitioner’s financial obligations, but 22 all payments not voluntarily made through the IFRP are to be made to the clerk of the 23 court, per the express language of the J&C. The sentencing court’s order did not mandate 24 participation in the IFRP. 25 26 27 28 CONCLUSION After de novo review of the issues raised in the Petitioner’s Objection, this Court agrees with the findings of fact and conclusions of law made by the Magistrate Judge in 3 1 her R&R for determining the Petition for Writ of Habeas Corpus. The Court adopts it, 2 and for the reasons stated in the R&R, the Court denies the Petition. 3 Accordingly, 4 IT IS ORDERED that after a full and independent review of the record, in 5 respect to the objections, the Magistrate Judge’s Report and Recommendation (doc. 10) is 6 accepted and adopted as the findings of fact and conclusions of law of this Court. 7 8 9 10 11 12 IT IS FURTHER ORDERED that Respondent’s Motion to Dismiss (doc. 7) is GRANTED. IT IS FURTHER ORDERED that the Petition (doc. 1) is DENIED. IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly. DATED this 8th day of June, 2011. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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