Opinion
C.A. No. 0:02-2211-20BD
September 25, 2002
ORDER
This matter is before the court with the Report and Recommendation of the United States Magistrate Judge, made in accordance with 28 U.S.C. § 636 (b) and Local Rule 73.02 DSC. Paul B. Goist ("Goist"), a federal prisoner proceeding pro se, filed a petition which the court construes as seeking habeas corpus relief pursuant to 28 U.S.C. § 2241, as well as injunctive relief for violations of the Fair Debt Collection Act ("FDCA"), 28 U.S.C. § 3001, et seq, the 1977 Amendment to Consumer Credit Protection Act ("CCPA"), 15 U.S.C. § 1692, et seq, and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. Magistrate Judge Bristow Marchant recommends dismissing Goist's section 2241 petition without prejudice and without issuance and service of process and denying Goist's motion for a temporary restraining order and "preliminary/permanent" injunction. Goist filed objections to the Report and Recommendation. After a de novo review and for the reasons below, the court summarily dismisses the petition and denies Goist's motion for a temporary restraining order and "preliminary/permanent" injunction.
The recommendation has no presumptive weight, and the responsibility for making a final determination remains with the United States District Court. See Mathews v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the magistrate judge or recommit the matter with instructions. 28 U.S.C. § 636 (b)(1).
A petition filed pursuant to section 2241 is filed in the district of incarceration, while a section 2255 motion is filed in the district where the sentence was imposed. See 28 U.S.C. § 2255; United States v. Miller, 871 F.2d 488, 490 (4th Cir. 1989).
On August 29, 2002, Goist filed a motion for reconsideration which the court construes as objections to the Report and Recommendation.
On September 12, 2002, Goist filed a motion for class certification. The court finds the motion without merit.
I. FACTUAL AND PROCEDURAL HISTORY
Goist is currently incarcerated at ECI-Edgefield serving a sentence of two hundred and forty (240) months for bank robbery. Additionally, Goist was ordered to pay a two hundred dollar ($200) special assessment and $2,980 in restitution, with payments to begin during his period of confinement. (J. at 5-6.) Upon arrival at FCT-Edgefield, Goist was placed into the Inmate Financial Responsibility Program ("IFRP"). Goist's financial status was evaluated and it was detennined that he could pay twenty-five dollars ($25) quarterly. Goist failed to make these payments and was penalized.In his petition, Goist alleges that his placement in the IFRP is an unlawful execution of his sentence and that he is entitled to injunctive relief because his placement in the IFRP is an unlawful debt collection in violation of the FDCA and CCPA as well as discrimination under the ADA.
II. DISCUSSION OF THE LAW A. Habeas Relief
Goist alleges that his placement in the IFRP is unlawful. The court construes this allegation as an attack on the execution of his sentence. As such, the court determines that Goist's filing was made pursuant to section 2241. See United States v. Miller, 871 F.2d 488, 490 (4th Cir. 1989) (holding that when a claim attacks the execution of the sentence rather than the sentence itself review is properly sought under section 2241). After review, the court finds Goist's allegations regarding the IFRP to be without merit.
Pursuant to the rulemaking authority vested in the United States Attorney General in 5 U.S.C. § 552 (a) and delegated to the Director of the BOP in 28 C.F.R. § 0.96 (o), the BOP enacted the LFRP. See 28 C.F.R. § 545.10, et al. The IFRP was enacted to assist inmates in "meet[ing] his or her legitimate financial obligations." Id. § 545.10. "The provisions of th[e IFRP] . . . apply to all inmates in federal facilities." Id. Special assessments and court ordered restitution qualify as inmate financial obligations. See id. § 545.11(a)(1)(2).
The decision as to whether an inmate participates in the IFRP is made by the BOP. See 28 C.F.R. § 545.11 (c). In addition, failure to comply with the IFRP can result in punitive action by the BOP. See id. § 545.11(d). Because the BOP has not violated the guidelines set forth in the IFRP, Goist's claim is without merit.
B. Injunctive Relief 1. Unlawful Debt Collection
Goist seeks to enjoin the BOP from placing him in the IFRP, asserting that such placement is an unlawful debt collection in violation of the FDCA and the CCPA. Specifically, Goist claims that the IFRP is an unlawful means of debt collection under the FDCA and a form of abusive debt collection under the CCPA. These claims are without merit.
As to the FDCA, it only applies to debts owed to the United States Government. See 28 U.S.C. § 3002 (3). As part of his sentence, Goist was ordered to make restitution payments to Farmers National Bank in Damascus, Ohio and First Federal of Youngstown in Austintown, Ohio. (J. at 5.) The order of restitution was entered pursuant to the Victim and Witness Protection Act ("VWPA"). See 18 U.S.C. § 3663A. The FDCA does not affect the government's capacity under the VWPA to collect restitution owed to private parties. See United States v. Timilty, 148 F.3d 1, 5 (1st Cir. 1998); 28 U.S.C. § 3003 (b)(2). Therefore, the FDCA is inapplicable.
In addition, the CCPA only applies to debts "of a consumer to pay money arising out of a transaction in which . . . the subject of the transaction [is] primarily personal, family, or household." 15 U.S.C. § 1692a(5). Goist's debt does not fit within section 1692a(5). Therefore, the court finds Goist's allegations regarding the FDCA and CCPA to be without merit and denies Goist's request for injunctive relief.
2. Discrimination
Goist seeks to enjoin the BOP from discriminating against him in violation of the ADA. Specifically, Goist claims the BOP is discriminating against him because he is indigent. This claim is without merit. Indigency is not a disability under the ADA. See 42 U.S.C. § 12102 (2) ("[D]isability" means . . . a physical or mental impairment. . . .
The BOP does take indigency into consideration when determining whether an inmate must participate in the IFRP. (Pet'r Mot. Recons. Ex. A.) If the inmate lacks sufficient funds, he will be removed from the IFRP. (Id.) This determination is made on a case-by-case basis and re-evaluated periodically. (Id.)
Therefore, it is
ORDERED that Goist's petition is summarily dismissed. It is further
ORDERED that Goist's motion for a temporary restraining order and "preliminary/permanent" injunction is denied.