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Kaplan v. Ortiz

United States District Court, D. New Jersey

March 26, 2018

EDWARD KAPLAN, Petitioner,
v.
DAVID E. ORTIZ, Respondent.

          OPINION

          ROBERT B. KUGLER UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Petitioner Edward Kaplan (“Petitioner”) is a federal prisoner currently incarcerated at FCI Fort Dix, in Fort Dix, New Jersey. He is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Specifically, Petitioner alleges that a Bureau of Prisons (“BOP”) counselor acted outside his scope of authority when he set a payment schedule amending Petitioner's quarterly payment schedule under the Inmate Financial Responsibility Program (“IFRP”) and then improperly placed Petitioner in refusal status when Petitioner rejected the amended payment schedule. The petition is ripe for disposition, and for the reasons outlined below, the petition will be denied.

         II. BACKGROUND

         On October 8, 2010, Petitioner was sentenced in the United States District Court for the Eastern District of Pennsylvania to 120 months of incarceration for the following offenses: one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846; three counts of distribution and possession with intent to distribute cocaine and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), (b)(1)(C), and 18 U.S.C. § 2; and one count of distribution and possession with intent to distribute cocaine near a school, in violation of 21 U.S.C. § 860. (ECF No. 3, Ex. 5 at pp. 1-2).

         As part of his sentence, the District Court ordered Petitioner to pay an assessment of $400.00 and a fine of $25, 000.00. (Id. at p. 6). Regarding the payment of the special assessment and fine, the District Court noted:

The fine is due immediately. It is recommended that the defendant participate in the Bureau of Prisons Inmate Financial Responsibility Program and provide a minimum payment of $25.00 per quarter towards the fine. In the event the fine is not paid prior to the commencement of supervision, the defendant shall satisfy the amount due in monthly installments of not less than $100.00, to commence 30 days after release from confinement.

(Id. at p. 7). The District Court did not order Petitioner to pay any restitution. (Id. at p. 6).

         On October 23, 2013, while confined at FCI Schuylkill, Petitioner entered into an IFRP plan wherein he agreed to pay $25.00 per quarter to satisfy his financial obligation. (ECF No. 3, Ex. 7). The plan provided that Petitioner was to begin making payments in December 2013. (Id.). On August 11, 2015, Petitioner was transferred to FCI Fort Dix. (ECF No. 3, Ex. 6). Petitioner continued on the same financial plan whereby he continued to make a minimum $25.00 payment per quarter. (ECF No. 3, Ex. 9; ECF No. 4, Exs. 5-8).

         On November 25, 2015, Petitioner was offered a revised IFRP plan for payments of $125 per month toward his monetary penalties. (ECF No. 3, Ex. 8). Respondents contend that the payment amount was arrived at by considering Petitioner's financial capacity, specifically his six-month deposit balance and account balance. (ECF No. 3 at pp. 4-5). Petitioner voiced his disagreement with the revised payment amount and refused to sign the plan. (ECF No. 3, Ex. 8). As a result, Petitioner was placed in “FRP Refuse” status. (ECF No. 3, Ex. 9).

         Petitioner pursued an administrative appeal of his sanction. Petitioner filed a BP-8 informal resolution form with his counselor requesting to be removed from “FRP Refuse” status. (ECF No. 1, Ex. 1). On October 4, 2016, Petitioner filed a BP-9 with the Warden requesting to be taken off “FRP Refuse” status and asserting that his counselor did not have authority to increase his IFRP payments or renegotiate an existing IFRP plan. (ECF No. 1, Ex. 2). On October 20, 2016, the Warden denied Petitioner's request. (ECF No. 1, Ex. 3). On November 6, 2016, Petitioner appealed to the Regional Director by submitting a BP-10 form. (ECF No. 1, Ex. 4). The Regional Director denied Petitioner's appeal on December 6, 2016. (ECF No. 1, Ex. 5). On December 29, 2016, Petitioner appealed to the Central Office, however his appeal was rejected as incomplete on January 9, 2017. (ECF No. 1, Exs. 5-6). Petitioner re-filed his corrected BP-11 with the Central Office on February 15, 2017. (ECF No. 3 at p. 5). On April 13, 2017, the Central Office denied Petitioner's appeal. (ECF No. 6, Ex. 1).

         Petitioner filed his habeas petition on February 23, 2017, arguing that the sentencing court failed to establish a payment schedule for Petitioner's fine and authority to establish a payment schedule may not be delegated to the BOP. (ECF No. 1 at pp. 6-7, 11-12). Additionally, Petitioner argues that his counselor at FCI Fort Dix acted outside the scope of his authority by altering Petitioner's financial plan and placing Petitioner in refusal status for failing to sign the new plan. (Id. at p. 7). In response, Respondent contends that Petitioner failed to properly exhaust his administrative remedies because Petitioner filed his habeas petition prior to receiving a final response from his appeal to the Central Office. (ECF No. 3 at pp. 5-6). Additionally, Respondent argues that Petitioner's claims fail on the merits as the BOP properly determined a payment schedule for Petitioner's monetary penalty. (Id. at pp. 7-11). In response, Petitioner filed a “motion to amend” his petition, which the Court construes as a traverse. (ECF No. 4).

         III. DISCUSSION

         Federal habeas corpus review under § 2241 allows a federal prisoner to challenge the “execution of his sentence.” Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005). A habeas corpus petition may be brought by a prisoner who seeks to challenge either the fact or duration of his confinement in prison. Preiser v. Rodriguez, 411 U.S. 475, 494 (1973), Telford v. Hepting, 980 F.2d 745, 748 (3d Cir. 1993). Federal habeas corpus review is available only “where the ...


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