Fontanez v. O'Brien
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING AS FRAMED MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, OVERRULING PETITIONER'S OBJECTIONS, GRANTING IN PART AND DENYING IN PART RESPONDENT'S MOTION TO DISMISS OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT AND GRANTING AS FRAMED § 2241 PETITION: Granting in part and denying in part 36 Motion to Dismiss; granting in part and denying in part 36 Motion for Summary Judgment; Adopting Report and Recommendations re 41 REPORT AND RECOMMENDATIONS; Granting as framed 1 and 4 Petition for Writ of Habeas Corpus, filed by Jeremy Fontanez, and Overruling 43 Objections;. (copy to Fontanez by cert. mail) Signed by Senior Judge Frederick P. Stamp, Jr on 1/30/17. (soa) (Additional attachment(s) added on 1/30/2017: # 1 Certified Mail Return Receipt) (soa).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 5:14CV77
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING AS FRAMED
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION,
OVERRULING PETITIONER’S OBJECTIONS,
GRANTING IN PART AND DENYING IN PART
RESPONDENT’S MOTION TO DISMISS OR,
ALTERNATIVELY, FOR SUMMARY JUDGMENT AND
GRANTING AS FRAMED § 2241 PETITION
The petitioner, Jeremy Fontanez (“Fontanez”), filed this pro
se petition under 28 U.S.C. § 2241 challenging the respondent’s
administration of the restitution ordered by the sentencing court.
The respondent (“the Warden”) filed a motion to dismiss the
petition or, alternatively, for summary judgment.
judge entered a report recommending that the respondent’s motion be
Fontanez then filed timely objections to the report and
For the following reasons, the magistrate judge’s
report and recommendation is affirmed and adopted as framed, the
respondent’s motion to dismiss or, alternatively, for summary
judgment is granted in part and denied in part, the petitioner’s
objections are overruled, and the petitioner’s § 2241 petition is
granted as framed.
The United States District Court for the Eastern
District of Pennsylvania sentenced Fontanez to a total of 420
months of imprisonment, and imposed restitution in the amount of
$27,972.61. The sentencing court ordered that Fontanez “shall make
restitution payments from any wages he may earn in prison in
accordance with the Inmate Financial Responsibility Program,” and
ordered that “[r]estitution shall be due immediately.”
36-1 at 19.
When Fontanez began serving his term of imprisonment,
he voluntarily entered into the Inmate Financial Responsibility
Program (“IFRP”) and agreed to pay $25.00 each quarter toward
The Bureau of Prisons (“BOP”) then began collecting
restitution payments from Fontanez’s IFRP account.
About a year
later, Fontanez filed a written request to be released from the
IFRP, arguing that it violates the Mandatory Victims Restitution
Act, 18 U.S.C. § 3664. The Warden denied Fontanez’s request on the
ground that he believed the sentencing court’s restitution order
required Fontanez to participate in and make payments through the
Fontanez exhausted his administrative remedies and then
filed this § 2241 petition arguing that the restitution order
violates 18 U.S.C. § 3664 because it delegates the sentencing
restitution payments to the BOP.
The Warden then filed a motion to dismiss. This Court granted
that motion, concluding that Fontanez’s claim sought to challenge
the validity of the restitution order rather than the execution of
his sentence, and thus was not cognizable under § 2241 and did not
meet the requirements of § 2255’s savings clause.
appealed to the United States Court of Appeals for the Fourth
The Fourth Circuit reversed and remanded, concluding
that, as the arguments had been clarified on appeal, Fontanez was
attacking only the BOP’s administration of the IFRP and not the
validity of the restitution order itself.
The court held that “an
inmate’s challenge to the BOP’s administration of the IFRP is a
challenge to the ‘execution’ of a sentence that is cognizable under
. . . § 2241.”
ECF No. 24 at 7-8.
The court remanded for a
determination of whether it is necessary to reach the merits of
Fontanez’s petition and whether the BOP’s refusal to allow Fontanez
to withdraw from the IFRP was unlawful.
The court also
observe[d] that the distance between the parties appears
to have narrowed as the issues have been refined on
appeal. Fontanez challenges the Warden’s refusal to let
him stop making payments through the IFRP. The Warden
now takes the position that “the IFRP is a purely
voluntary program” and that Fontanez “is entitled to stop
participating at any time.”
ECF No. 24 at 8.
On remand, the Warden then filed a new motion to dismiss or,
petition is now moot because the Warden now concedes that the IFRP
is voluntary and that Fontanez may stop participating at any time.
The Warden, alternatively, argues that Fontanez’s petition fails on
the merits because the restitution order did not require him to
participate in the IFRP.
Magistrate Judge Aloi entered a report recommending that this
Court grant the Warden’s motion.
He concluded that the petition
fails to state a claim under § 2241 because the restitution order
does not violate § 3664. Fontanez filed timely objections, arguing
that the restitution order violates § 3664 and unconstitutionally
delegated the sentencing court’s power to impose restitution by
requiring him to make payments through the IFRP as administered by
the BOP. The magistrate judge did not address the issue of whether
the Warden properly refused to allow Fontanez to withdraw from the
IFRP, and Fontanez did not discuss this issue in his objections.
Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which objection is timely made.
Because the petitioner filed
objections to the report and recommendation, the magistrate judge’s
recommendation will be reviewed de novo as to those findings to
objections were not filed, the findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”
U.S.C. § 636(b)(1)(A).
This Court will also address de novo, for
the purpose of clarity, the issue of the Warden’s initial refusal
to allow Fontanez to stop making payments.
To survive a motion to dismiss under Rule 12(b)(6), “a
[pleading] must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
standard requires a plaintiff to articulate facts that, when
accepted as true, demonstrate that the plaintiff is plausibly
entitled to relief.
Francis v. Giacomelli, 588 F.3d 186, 193 (4th
Cir. 2009) (citing Iqbal, 556 U.S. at 678; Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
“The plausibility standard is
not a probability requirement, but asks for more than a sheer
possibility that a defendant has acted unlawfully.”
DirectTV, __ F.3d __, 2017 WL 361065, 4 (4th Cir. 2017). “[C]ourts
must accept as true all of the factual allegations contained in the
complaint and draw all reasonable inferences in favor of the
Further, “a [pleading] is to be construed
quotation marks omitted).
Under Federal Rule of Civil Procedure 56, this Court must
grant a party’s motion for summary judgment if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
A fact is
“material” if it might affect the outcome of the case. Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986).
A dispute of material
fact is “genuine” if the evidence “is such that a reasonable jury
could return a verdict for the non-moving party.”
nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial,” summary
judgment must be granted against that party.
Catrett, 477 U.S. 317, 322 (1986).
Celotex Corp. v.
In reviewing the supported
underlying facts, all inferences must be viewed in the light most
favorable to the party opposing the motion.
See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The party seeking summary judgment bears the initial burden of
showing the absence of any genuine issues of material fact.
Celotex, 477 U.S. at 322-23.
“The burden then shifts to the
nonmoving party to come forward with facts sufficient to create a
triable issue of fact.”
Temkin v. Frederick County Comm’rs, 945
F.2d 716, 718 (4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992).
However, “a party opposing a properly supported motion for summary
judgment may not rest upon the mere allegations or denials of his
pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial.”
Inc., 477 U.S. 242, 256 (1986).
Anderson v. Liberty Lobby,
Moreover, “[t]he nonmoving party
cannot create a genuine issue of material fact through mere
(internal quotation marks omitted).
The nonmoving party must
produce “more than a ‘scintilla’” of evidence “upon which a jury
could properly proceed to find a verdict for the party producing
it.” Id. (internal quotation marks omitted) (quoting Anderson, 477
U.S. at 251).
The Fourth Circuit’s mandate requires this Court to consider
Fontanez’s petition and the Warden’s motion in the following
First, Fontanez’s petition challenges only the Warden’s
refusal to permit his withdrawal from the IFRP. Second, the Warden
now concedes that Fontanez may withdraw from the IFRP at any time.
Third, the Warden initially refused to permit Fontanez’s withdrawal
from the IFRP because he took the position that the restitution
order required Fontanez to participate in the IFRP.
Fontanez may not challenge the validity of the restitution order in
these proceedings, but its validity is relevant regarding the
Warden’s reasons for denying Fontanez’s request to withdraw from
As noted above, the magistrate judge’s report and
recommendation deals only with the validity of the restitution
order but not with the limited scope of Fontanez’s petition or the
Warden’s present concession.
Thus, under the current posture of
the case, this Court considers those issues de novo.
The Warden now argues that Fontanez’s petition is moot because
the Warden now concedes that Fontanez may withdraw from the IFRP at
However, Fontanez is challenging the Warden’s prior
refusal to permit his withdrawal.
Though the Warden now concedes
that Fontanez may withdraw from the IFRP at any time, there is no
evidence in the record showing that he has been permitted to
See Doe v. Kidd, 501 F.3d 348, 354 (4th Cir. 2007)
(concluding that a case was not moot where the defendants had “not
question of whether the Warden earlier abused his discretion in
refusing to permit Fontanez’s withdrawal is still a live issue.1
Because the Warden now concedes that the IFRP is a voluntary
program and that Fontanez is permitted to withdraw from it at any
time, the Warden’s refusal to permit Fontanez’s withdrawal from the
IFRP was an abuse of discretion unless the sentencing court’s
restitution order required Fontanez to participate in the IFRP,
which Fontanez argues would violate § 3664 and the separation of
powers. The magistrate judge determined that the restitution order
This Court also notes that a defendant’s “‘voluntary
cessation of a challenged practice does not deprive a federal court
of its power to determine the legality of the practice unless it is
absolutely clear that the allegedly wrongful behavior would not
reasonably be expected to recur.’” Id. (alteration in original)
(quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528
U.S. 167, 189 (2000)).
The Warden has not established that
Fontanez has been, or will be, permitted to withdraw from the IFRP
without a judicial determination in the civil action.
was valid because it merely permits Fontanez to make payments
through the IFRP without delegating any authority to the BOP.
Fontanez objects to this conclusion.
Without ruling on the
ultimate validity of the sentencing court’s restitution order, this
Court finds no clear error in the magistrate judge’s conclusion in
the report and recommendation.
probation officer [or the BOP] the final authority to determine the
amount of restitutionary installment payments, without retaining
ultimate authority over such decisions.”
United States v. Miller,
participation in the BOP’s IFRP program is [not] an abdication of
the court’s ‘core judicial function,’” where “the sentencing court
has already determined the amount and timing of the [restitution].”
Summersett v. Baucknecht, 496 F. Supp. 2d 636, 639-40 (D.S.C.
2007). In such circumstances, “the sentencing court merely permits
[the petitioner] to pay his [restitution] . . . through the BOP’s
Id. at 639.
restitution in the amount of $27,972.61, due immediately.
the sentencing court determined the amount and timing of the
restitution and did not abdicate its “core judicial function” or
delegate any authority to the BOP.
Further, in also stating that
restitution payments should be paid “from any wages [Fontanez] may
earn in prison in accordance with the [IFRP],” ECF No. 36-1 at 19,
the sentencing court simply permitted Fontanez to make payments
through the IFRP while incarcerated, but did not mandate that he
participate in the program or delegate to the BOP authority to
determine the amount or timing of restitution.
Thus, the Warden
was not required by the restitution order to refuse to allow
Fontanez’s withdrawal from the IFRP and he asserts no other reason
for doing so.
In light of such developments, Fontanez’s petition
must now be granted.
The petition is not now moot.
BOP has simply conceded that Fontanez had and has the right to
withdraw from the IFRP. Accordingly, this Court affirms Fontanez’s
right to withdraw from the IFRP at any time, and denies summary
judgment on the withdrawal issue.
For the foregoing reasons, the magistrate judge’s report and
recommendation (ECF No. 41) is ADOPTED AND AFFIRMED AS FRAMED,
Fontanez’s objections (ECF No. 43) are OVERRULED, the Warden’s
motion to dismiss or, alternatively, for summary judgment (ECF No.
36) is GRANTED IN PART AND DENIED IN PART, and Fontanez’s petition
(ECF Nos. 1, 4) is GRANTED AS FRAMED.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made or those that this Court
otherwise determined de novo, he is ADVISED that he must file a
notice of appeal with the Clerk of this Court within 60 days after
the date of the entry of this order.2
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
January 30, 2017
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
This Court notes that an appeal is not likely, as the
respondent concedes the petitioner’s argument and, despite
overruling his objections, the petitioner is the prevailing party.
However, out of an abundance of caution, this Court has included
this notice of the petitioner’s right to appeal.
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