Carter v. Federal Medical Center Devens
Judge Richard G. Stearns: ORDER entered adopting Report and Recommendations re 47 Report and Recommendations.; granting 18 Motion to Dismiss; finding as moot 21 Motion for Summary Judgment; finding as moot 33 Motion for Summary Judgment; finding as moot 35 Motion for Order to Show Cause. The Magistrate Judge's Recommendation is ADOPTED, Grondolsky's Motion to Dismiss is ALLOWED with prejudice, and the remaining motions are DENIED AS MOOT. (RGS, law1) (Additional attachment(s) added on 8/28/2017: # 1 Report and Recommendations) (Russo, Noreen).
Case 1:16-cv-11910-RGS Document 47 Filed 07/13/17 Page 1 of 10
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
FEDERAL MEDICAL CENTER DEVENS
and JEFF GRONDOLSKY
REPORT AND RECOMMENDATION ON: (1) RESPONDENTS’ MOTION TO
DISMISS (Dkt. No. 18); (2) PETITIONER’S MOTION FOR SUMMARY
JUDGMENT (Dkt. No. 21); (3) RESPONDENTS’ CROSS MOTION FOR
SUMMARY JUDGMENT (Dkt. No. 33); AND (4) PETITIONER’S MOTION FOR
ORDER TO SHOW CAUSE (Dkt. No. 35)
habeas action under 28 U.S.C. § 2241 against the Federal Medical
He contends that his forced participation in a
program known as the Inmate Financial Responsibility Program,
through which funds are taken from an inmate’s account to satisfy
their court imposed financial obligations, violates the terms of
his sentence, which, he contends, deferred the obligation to make
Case 1:16-cv-11910-RGS Document 47 Filed 07/13/17 Page 2 of 10
any such payments until after he is released from prison.
respondents move to dismiss the petition for failure to state a
(Dkt. No. 18).
Because I conclude that the sentencing
immediately and did not defer them until after his imprisonment,
I find that the petition lacks merit and accordingly recommend
that the motion to dismiss be granted. 1
The Petitioner’s Sentence
Following a guilty plea on two counts of mail fraud and one
count of tax evasion, a judge sitting in the U.S. District Court
for the Eastern District of Pennsylvania sentenced the petitioner
to a 180-month term of imprisonment, to be followed by a threeyear term of supervised release.
(Dkt. No. 1).
The court also
ordered the petitioner to (1) make restitution in the amount of
The motion to dismiss has spawned three successive motions, all of which are
derivative of the habeas petition and which would become moot should the Report
and Recommendation be adopted and the habeas petition dismissed. First, the
petitioner moved for summary judgment, presumably in response to the
respondents’ motion to dismiss. (Dkt. No. 21).
The respondents then crossmoved for summary judgment. (Dkt. No. 33). Lastly, the petitioner moved for
an order to show cause why the respondents should not be defaulted for filing
what the petitioner believes was an untimely opposition to his motion for
(Dkt. No. 35).
Because this Report and Recommendation
recommends that the motion to dismiss the habeas petition be granted, it is
further recommended that these three motions be denied as moot.
Case 1:16-cv-11910-RGS Document 47 Filed 07/13/17 Page 3 of 10
$1,330,011, (2) pay a fine in the amount of $30,000, and (3) pay
a $300 special assessment.
“Judgment in a Criminal Case” (the “Judgment”), the sentencing
court checked Box A to indicate that the petitioner was to make a
lump sum payment of $300.00 immediately.
The sentencing court
also checked Box D to indicate that the petitioner was to make
monthly installments of $500.00 “over a period of 36 months . . .
to commence 30 days . . . after release from imprisonment to a
term of supervision . . .”
Underneath the Schedule of Payments section, but separate
from that section, the following language appears:
Unless the court has expressly ordered otherwise, if
this judgment imposes imprisonment, payment of criminal
monetary penalties is due during imprisonment.
criminal monetary penalties, except those payments made
through the Federal Bureau of Prisons’ Inmate Financial
Responsibility Program, are made to the clerk of the
The Inmate Financial Responsibility Program
The petitioner arrived at FMC Devens on January 4, 2008.
time, the Bureau of Prisons (“BOP”) set about collecting money
from the petitioner to satisfy his financial obligations, through
the program referenced above, the Inmate Financial Responsibility
The IFRP was created to assist “each sentenced
Case 1:16-cv-11910-RGS Document 47 Filed 07/13/17 Page 4 of 10
inmate to meet his or her legitimate financial obligations.”
C.F.R. § 545.10.
Under the program, BOP staff develop a financial
plan in conjunction with the inmate to fulfill monetary obligations
as ordered by the sentencing court.
The inmate is then
responsible for making payments according to their personalized
financial responsibility plan.
28 C.F.R. § 545.11(b).
An inmate may elect to make partial payments under their
personalized financial responsibility plan, or may elect to forego
participation in the program altogether.
28 C.F.R. § 545.11(d).
However, when an inmate refuses to participate in the program or
to comply with the provisions of their financial responsibility
plan, he may become ineligible to enjoy certain privileges.
C.F.R. § 545.11(d)(1)-(11).
According to the petitioner, he was advised upon his arrival
at FMC Devens that he was not required to participate in the IFRP,
because the sentencing court had ordered that all criminal monetary
penalty obligations be deferred until the start of his term of
Dkt. No. 1.
However, BOP officials informed
the petitioner at some point in April of 2014 that he would be
required to participate in the IFRP, and negotiated with him a
rate of $75.00 per month.
The monthly rate subsequently
increased to $212.00 due to the petitioner’s increased total inmate
earnings and financial support from outside sources.
Case 1:16-cv-11910-RGS Document 47 Filed 07/13/17 Page 5 of 10
petitioner refused to meet his monthly obligations and prison
officials subsequently placed him on “refusal status,” which in
turn led to the loss of several inmate privileges.
exhausting his administrative remedies, the petitioner commenced
this action challenging the requirement that he participate in the
To survive a Rule 12(b)(6) motion to dismiss, the complaint
must include sufficient factual allegations that, when taken as
true, demonstrate a plausible claim of relief. Bell Atlantic v.
Twombly, 550 U.S. 544, 555-58 (2007).
“The plausibility standard
is not akin to a probability requirement, but it asks for more
than a sheer possibility that a defendant has acted unlawfully.”
Id. The “plausibility” standard is met where “the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550
U.S. at 556).
When deciding a motion to dismiss under Rule 12(b)(6), the
“plausibility” standard requires the court: (1) to distinguish
accepted as true, and its conclusory legal allegations which are
afforded no credence, and (2) to determine whether the factual
Case 1:16-cv-11910-RGS Document 47 Filed 07/13/17 Page 6 of 10
allegations “are sufficient to support the reasonable inference
that the defendant is liable for the misconduct alleged.” GarciaCatalan v. U.S., 734 F.3d 100, 103 (1st Cir. 2013).
should be dismissed only if “the pleading shows no set of facts
which could entitle plaintiff to relief.” Zona v. Clark University,
436 F. Supp. 2d 287, 288(D. Mass. 2006).
A habeas petition brought under § 2241 challenges the execution
of a federal prisoner’s sentence. Thorton v. Sabol, 620 F. Supp.2d
203, 206 (D. Mass. 2009).
As the petitioner challenges the
execution of his sentence by claiming that the BOP acted unlawfully
in forcing him to participate in the IFRP to satisfy the monetary
penalties the sentencing court imposed, his claim falls squarely
within the purview of a section 2241 petition.
See Coady v.
Vaughn, 251 F.3d 480, 485 (3d Cir. 2001).
Rather, he argues that he should not have been
forced to participate in the IFRP because the sentencing court
indicated that he would not have to begin making payments towards
his monetary obligations until after his release from prison.
petitioner notes that Box D in the Schedule of Payments, which the
sentencing court checked, “clearly states that [the petitioner’s]
Case 1:16-cv-11910-RGS Document 47 Filed 07/13/17 Page 7 of 10
conjunction with the standard provision providing that “payment of
criminal monetary penalties is due during imprisonment” “[u]nless
the court has expressly ordered otherwise . . . ,” and argues, in
essence, that the sentencing court, by checking Box D, expressly
ordered otherwise in his case.
As a result, so the petitioner
argues, he should not have been required to participate in the
The petitioner’s argument is not facially outrageous. Arguably,
the Judgment form is ambiguous to the extent it is not self-evident
whether a sentencing court, by checking Box D and indicating a
defendant is to “commence” making payments beginning 30 days after
Still, this Court has no trouble concluding that
the Judgment, read as a whole and in a common sense fashion, impels
the conclusion that the sentencing court did not “expressly order
otherwise” but in fact ordered that the petitioner’s financial
obligations begin immediately rather than be deferred until after
Specifically, where the sentencing court imposed a special
petitioner to make an immediate lump sum payment of $300.00, it is
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clear in context that the court was ordering that the petitioner
pay the special assessment immediately.
Similarly, where the
sentencing court imposed a term of supervised release of three
years, and also checked Box D requiring the petitioner make monthly
payments of $500 during that same three-year period, the most
logical and reasonable inference is that the sentencing court
merely meant to make it clear that the petitioner would also as a
condition of his supervised release be required to make payments
towards his fine and restitution.
By contrast, it would not be reasonable to view the Judgment
(through the checked Box D) as purporting to defer all payments
until after the petitioner is released from prison.
literally, mean that the petitioner would only have to pay a total
of $18,000 towards the entire $1.3 million fine and restitution
Such a result would be patently absurd and in conflict
with the Judgment as a whole.
Other courts that have considered
the issue have similarly found that there is no inconsistency
between section D requiring payments to be made during the term of
supervised release and the Judgment’s standard paragraph requiring
See Hickman v. Keffer, 498 Fed. App’x 375 (5th Cir.
2012) (holding that “there is no necessary inconsistency between
Case 1:16-cv-11910-RGS Document 47 Filed 07/13/17 Page 9 of 10
line D, the payment schedule following [the petitioner’s release],
and the apparently standard paragraph requiring payments to be
made during imprisonment unless expressly ordered otherwise”);
U.S. v. Paz, 265 Fed. Appx. 333, 334 (5th Cir. 2008) (same); Rashad
v. Mosey, 2014 WL 7339058, at *3 (S. D. Miss. 2014) (“There is no
schedule following [the petitioner’s] release and the language
requiring payments to be made during imprisonment contained in the
In short, the sentencing court did not defer the
nothing in the Judgment prevented the BOP from requiring the
petitioner to participate in the IFRP.
respondents’ motion to dismiss (Dkt. No. 18) be GRANTED.
judgment (Dkt. No. 21), the respondents’ cross motion for summary
judgment (Dkt. No. 33), and the petitioner’s motion to show cause
(Dkt. No. 35) all be DENIED as moot.
The parties are hereby advised that under the provisions of
Federal Rule of Civil Procedure 72(b), any party who objects to
this recommendation must file specific written objections thereto
with the Clerk of this Court within 14 days of the party's receipt
of this Report and Recommendation.
The written objections must
Case 1:16-cv-11910-RGS Document 47 Filed 07/13/17 Page 10 of 10
recommendations, or report to which objection is made and the basis
for such objections.
The parties are further advised that the
United States Court of Appeals for this Circuit has repeatedly
indicated that failure to comply with Rule 72(b) will preclude
further appellate review of the District Court's order based on
this Report and Recommendation. See Keating v. Secretary of Health
and Human Servs., 848 F.2d 271 (1st Cir. 1988); United States v.
Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor
Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980); United
States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Scott v.
Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); see also Thomas v.
Arn, 474 U.S. 140 (1985).
/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
July 13, 2017
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