Turner v. Zickenfose
Filing
36
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that Magistrate Seibert's 32 Report and Recommendation is adopted in its entirety; Petitioner's 21 Motion to Dismiss, 21 Motion for Summary Judgment is granted; Petitioner's 144 Judgment and Commitment Order in 3:97cr20-01 be modified; this case is dismissed with prejudice and stricken from the docket. Any written notice of appeal must be filed within 30 days from entry of the Judgment Order. Signed by District Judge Irene M. Keeley on 3/4/14. (Attachments: # 1 Certified Mail Return Receipt)(copy Petitioner)(cnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ERIC M. TURNER,
Petitioner,
v.
//
CIVIL ACTION NO. 1:13CV155
(Judge Keeley)
DONNA ZICKENFOSE, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION [Dkt. No. 32]
Pending before the Court is the Report and Recommendation
(“R&R”) of the Magistrate Judge, (dkt. no. 32), concerning the
motion to dismiss, or in the alternative, motion for summary
judgment, (dkt. no. 21), filed by the respondent, Donna Zickenfose
(“Zickenfose”).
For the reasons that follow, the Court ADOPTS the
Magistrate Judge’s R&R.
I. PROCEDURAL HISTORY
On December 7, 2012, the pro se petitioner, Eric Turner
(“Turner”), filed a habeas petition pursuant to 28 U.S.C. § 2241 in
the United States District Court for the Middle District of
Pennsylvania, the federal court located in the area of Pennsylvania
where he is incarcerated. In his petition, Turner alleges that his
sentencing court in the Northern District of West Virginia at
Martinsburg improperly delegated authority to set his restitution
payment schedule to the Bureau of Prisons (“BOP”) by failing to
include a payment schedule in his Judgment and Commitment Order
TURNER v. ZICKENFOSE
1:13CV155
ORDER ADOPTING REPORT & RECOMMENDATION [DKT. NO. 32]
(“J&C”).1
Based on these allegations, the district court in
Pennsylvania transferred the case to this Court pursuant to 28
U.S.C. § 1404(a).
After that transfer, Zickenfose filed a motion to dismiss, or
in the alternative, motion for summary judgment, on July 12, 2013.
(Dkt. No. 21). In accordance with LR PL P 2, Magistrate Judge James
E. Seibert undertook an initial screening of the case and, on
July 17, 2013, issued a Roseboro notice to Turner.
Pursuant to
that notice, Turner filed a response in opposition to Zickenfose’s
motion on December 4, 2013.
On January 14, 2014, the magistrate
judge issued an R&R, (dkt. no. 213), in which he recommended that
the Court grant Zickenfose’s motion based on Turner’s failure to
establish that the omission of the restitution payment schedule in
his J&C was the result of an intentional delegation of authority,
rather than a clerical error.
Turner objected to that recommendation on January 31, 2014,
(dkt. no. 35), contending the magistrate judge erred when he
concluded that the omission of the restitution payment schedule
from the J&C was the result of clerical error.
He also argued that
the magistrate judge had misinterpreted the nature of the Inmate
Financial Responsibility Program (“IFRP”) in his analysis of the
1
Turner’s criminal case number is 3:97-cr-20-JPB-JES.
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ORDER ADOPTING REPORT & RECOMMENDATION [DKT. NO. 32]
legal issues.
Following de novo review, the Court concludes that
Turner’s objections are without merit.
II. FACTUAL BACKGROUND
A jury in the United States District Court for the Northern
District of West Virginia at Martinsburg2 convicted Turner of
“Distribution of Crack Cocaine in Furtherance of a Continuing
Criminal
Enterprise”
in
violation
of
21
U.S.C.
§
841(a)(1);
“Continuing Criminal Enterprise” in violation of 21 U.S.C. § 848;
“Killing
Resulting
from
a
Continuing
Criminal
Enterprise”
in
violation of 21 U.S.C. § 848(e)(1)(A); “Interstate Travel in Aid of
Racketeering Enterprise, Aiding and Abetting” in violation of 18
U.S.C. 18 U.S.C. § 1952 and § 2; and “Using and Carrying a Firearm
During a Crime of Violence, Aiding and Abetting” in violation of 18
U.S.C. § 924 (c) and § 2.
Turner’s J&C ordered him to pay a
special assessment fee of $400.00 and $3,0956.57 in restitution.
While it is undisputed that Turner’s J&C did not contain a
restitution payment schedule, the BOP nevertheless has collected
restitution payments from Turner pursuant to the IFRP throughout
his incarceration.
the
J&C,
Turner
Based on the lack of any payment schedule in
argues
that
the
2
sentencing
court
improperly
Turner’s criminal case was tried before the late Honorable W.
Craig Broadwater.
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delegated its authority to set his restitution payment schedule to
the BOP.
III. LEGAL STANDARDS
A.
Pro Se Pleadings
Because Turner is acting pro se, the Court must liberally
construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct.
285, 50 L.Ed.2d 251(1976); Haines v. Kerner, 404 U.S. 519, 92 S.Ct.
594, 30 L.Ed.2d 652 (1972)(per curiam); Loe v. Armistead, 582 F.2d
1291 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147 (4th Cir.
1978).
Even a pro se complaint is subject to dismissal, however,
if the Court cannot reasonably read the pleadings to state a valid
claim on which the plaintiff could prevail.
174 F.3d 1128 (10th
Barnett v. Hargett,
Cir. 1999). A court may not construct the
plaintiff’s legal arguments for him, nor should it “conjure up
questions never squarely presented.” Beaudett v. City of Hampton,
775 F.2d 1274 (4th Cir. 1985).
B.
Motion to Dismiss
Federal
Rule
of
Civil
Procedure
12(b)(6)
provides
for
dismissal of a case when a complaint fails to state a claim upon
which relief can be granted. Dismissal under Rule 12(b)(6) is
inappropriate unless it appears beyond a reasonable doubt that the
plaintiff cannot prove any set of facts to support his allegations.
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ORDER ADOPTING REPORT & RECOMMENDATION [DKT. NO. 32]
Revene v. Charles County Comm’rs, 882 F.2d 870 (4th Cir. 1989).
Courts, however, are not required to accept conclusory allegations
couched as facts and nothing more when ruling on a motion to
dismiss pursuant to 12(b)(6).
In order to survive a motion to dismiss, a plaintiff must
state a plausible claim for relief that is based on appropriate
legal authority and includes more than conclusory or speculative
factual allegations. “[O]nly a complaint that states a plausible
claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal,
556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice” because courts are not bound
to
accept
as
true
a
legal
conclusion
couched
as
a
factual
allegation. Id.
C. Motion for Summary Judgment
Pursuant
to
Rule
56(c)
of
the
Federal
Rules
of
Civil
Procedure, summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.”
The party seeking summary
judgment bears the initial burden of showing the absence of any
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ORDER ADOPTING REPORT & RECOMMENDATION [DKT. NO. 32]
genuine issues of material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
The Supreme Court of the United States noted in Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), that “Rule 56(c)
itself provides that a party opposing a properly supported motion
for summary judgment may not rest upon the mere allegation or
denials of his pleading, but must set forth specific facts showing
that there is a genuine issue for trial.” “The inquiry performed is
the threshold inquiry of determining whether there is the need for
a trial--whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.”
Id. at 250.
Further, it is well-established that any permissible
inferences to be drawn from the underlying facts must be viewed in
the light most favorable to the non-moving party. Matsushita Elec.
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 487-88 (1986).
IV. ANALYSIS
A. Omission of the Restitution Payment Schedule
Turner
contends that it is impossible to determine the
intentions of the sentencing judge who omitted the restitution
payment schedule because he is deceased. After carefully reviewing
the relevant documents in this case, however, it is clear to this
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ORDER ADOPTING REPORT & RECOMMENDATION [DKT. NO. 32]
Court that the omission challenged by Turner resulted from clerical
error, not any intentional act of the sentencing judge. First, page
six of the J&C indicates that Turner was to pay his special
assessment fees and restitution in accordance with the schedule of
payments on Sheet 5, Part B.
Although Sheet 5 includes a Part A
(List of Criminal Monetary Penalties), it does not include a Part
B (Schedule of Payments). Second, the sentencing court specifically
stated that Turner was to pay restitution in increments of 60% of
his
earned
income,
indicating
its
intention
restitution payment schedule in the J&C.
payment
schedule
intentional
was
decision
a
to
result
delegate
of
to
include
a
Thus, the omission of a
clerical
imposition
error,
of
a
not
any
restitution
payment schedule to the BOP.
Furthermore, Rule 36 of the Federal Rules of Civil Procedure
provides that, at any time, a court may “correct a clerical error
in judgment, or other part of the record, or correct an error in
the record arising from oversight or omission.”
A defendant need
not be present when a court corrects a clerical error in a J&C.
United States v. Portilo, 363 D.3d 1161, 1165-66 (11th Cir. 2004).
Thus, this Court may correct Turner’s J&C to include a restitution
payment schedule.
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B. Constitutionality of the IFRP
Turner also argues that the magistrate judge misinterpreted
the nature of the IFRP, and improperly concluded that the program
is constitutional.
This argument has been raised many times in
past cases and ignores the fact that the IFRP has been “uniformly
upheld against constitutional attack.”
McGhee v. Clark, 166 F.3d
884-86 (7th Cir. 1999).
The IFRP was enacted to assist inmates in paying their fines
and satisfying their financial obligations.
28 C.F.R. § 545.10
(2007). “The IFRP program serves valid penological interests and is
fully consistent with the Bureau of Prisons’ authorization, under
the
direction
of
the
Attorney
General,
to
provide
for
rehabilitation and reformation.” Johnpoll v. Thornburgh, 898 F. 2d
849, 851 (2d Cir. 1990). Furthermore, compelled participation in
the program is neither punitive in nature, nor in violation of due
process,
because
it
is
reasonably
related
to
the
legitimate
government objective of rehabilitation. Johnpoll, 898 F. 3d at 851.
Thus, the magistrate judge’s conclusion that the IFRP does not
violate Turner’s constitutional rights is not erroneous.
V. CONCLUSION
For the reasons discussed, the Court:
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ORDER ADOPTING REPORT & RECOMMENDATION [DKT. NO. 32]
1.
ADOPTS the Report and Recommendation in its entirety
(dkt. no. 32);
2.
GRANTS
Zickenfose’s
Motion
to
Dismiss,
or
in
the
alternative, Motion for Summary Judgment (dkt. no. 21);
3.
MODIFIES
include
Turner’s
the
Judgment
sentencing
and
judge’s
Commitment Order to
directive
that
the
petitioner’s monetary penalties be repaid pursuant to a
schedule of 60% of his earned income; and
4.
ORDERS that this case be DISMISSED WITH PREJUDICE and
STRICKEN from the docket of this Court.
It is so ORDERED.
If Turner should desire to appeal the decision of this Court,
pursuant to Rule 4 of the Federal Rules of Appellate Procedure,
written notice of appeal must be received by the Clerk of this
Court within thirty (30) days from the date of the entry of the
Judgment Order.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
both orders to counsel of record and to the pro se petitioner,
certified mail, return receipt requested.
Dated: March 4, 2014.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
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