Davis v. Wiley, 260 F. App'x 66

Davis v. Wiley

260 F. App'x 66

10th Cir.

2008

Check Treatment

Docket

D‘Angelo D. DAVIS, Petitioner-Appellant, v. Ron WILEY, Respondent-Appellee.

No. 07-1303.

United States Court of Appeals, Tenth Circuit.

Jan. 2, 2008.

administrative ... remedies is an implicit prerequisite to seeking judicial relief.” Whitehead v. Okla. Gas & Elec. Co., 187 F.3d 1184, 1190 (10th Cir.1999) (quotation omitted). “[I]t makes no difference whether the [the Plan] itself explicitly requires exhaustion, because ERISA exhaustion is a judicial, not contractual, doctrine.” Id. “This proposition derives from the exhaustion doctrine permeating all judicial review of administrative agency action, and aligns with ERISA‘s overall structure of placing primary responsibility for claim resolution on fund trustees.” Id. (quotation omitted). Any other procedure would permit “premature judicial interference” and “would impede those internal processes which result in a completed record of decision making for a court to review.” Id. (quotation omitted). “The doctrine is necessary to keep from turning every ERISA action, literally, into a federal case.” Id. (quotation omitted).

Generally, a district court may waive exhaustion only under “two limited circumstances,” when (1) the administrative process would be futile, or (2) the remedy in the benefit plan is inadequate. McGraw v. Prudential Ins. Co. of Am., 137 F.3d 1253, 1263 (10th Cir.1998). In order to meet the futility exception, a plaintiff must show that her claim would be denied, not just that she thinks it is unlikely that the claim would succeed. See Lindemann v. Mobil Oil Corp., 79 F.3d 647, 650 (7th Cir.1996) (requiring evidence that employer would have rejected a request for short-term disability benefits before plaintiff could pursue ERISA retaliation claim).

In summary judgment proceedings, the district court properly analyzed and rejected Lane‘s ERISA claim. As the district court stated, “the notable feature of [judicial review under ERISA] is that the court conducts a review of the Plan Administrator‘s decision, the court does not determine eligibility for benefits in the first instance.” Aplt.App. at 11. “Since [Lane] did not apply for benefits, it follows that no records submitted to or considered by the Plan Administrator have been tendered for court review.” Id. at 12. “Further, [Lane] has made no showing that exhaustion of remedies would be futile.” Id. The district court therefore granted judgment to Sunoco and, as a corollary, denied Lane‘s motion for summary judgment.

Lane‘s contentions on appeal are no more persuasive than her arguments before the district court. Sunoco‘s resistance to her federal action does not constitute evidence that it would have denied her original claim. And the parties’ legal briefs do not amount to an administrative record for this court‘s review. Accordingly, for substantially the same reasons expressed in the district court‘s order of March 30, 2007, the judgment of the district court is AFFIRMED.

D‘Angelo D. Davis, Florence, CO, pro se.

Before HENRY, Chief Circuit Judge, TYMKOVICH, and HOLMES, Circuit Judges.^*

ORDER AND JUDGMENT^**

TIMOTHY M. TYMKOVICH, Circuit Judge.

D‘Angelo D. Davis, a federal prisoner appearing pro se, appeals the district court‘s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2241.¹ For the reasons set forth below, we AFFIRM the district court‘s order.

Davis is currently in the custody of the United States Bureau of Prisons (BOP) at Florence, Colorado. As part of his sentence, Davis was required to pay special assessments and restitution arising from his convictions. In a § 2241 petition filed in the United States District Court for the District of Colorado, Davis challenges the BOP‘s use of the Inmate Financial Responsibility Program (IFRP) to increase the amount he was paying on a quarterly basis.

II.

Davis‘s petition can be read to make out two distinct claims. In his first claim, he challenges the authority of the BOP to supervise his restitution plan, arguing the sentencing court cannot delegate that responsibility to the BOP under 18 U.S.C. § 3664. He relies on the Ninth Circuit‘s decision in United States v. Gunning, 401 F.3d 1145, 1150 (9th Cir.2005), which holds § 3664 prohibits a sentencing court from delegating to the BOP the task of establishing a schedule for the payment of court-ordered restitution. The Ninth Circuit‘s decision is consistent with our holding in United States v. Overholt, 307 F.3d 1231, 1255-56 (10th Cir.2002), which reached the same conclusion.

To the extent this claim implicates the validity of Davis‘s sentence, we lack jurisdiction to entertain a challenge to the sentencing court‘s order of restitution. Davis can attack the validity of his sentence only through a 28 U.S.C. § 2255 petition filed in the district court that sentenced him. See Bradshaw v. Story, 86 F.3d 164, 166-67 (10th Cir.1996) (holding a petition under § 2241 attacks the execution of a sentence, while a § 2255 petition attacks the validity of a judgment and sentence); see also Matheny v. Morrison, 307 F.3d 709, 711 (8th Cir.2002) (dismissing delegation claim brought under § 2241). Thus, if Davis is to make an improper delegation claim, he must do so through a § 2255 petition filed with his sentencing court.

Davis‘s second claim appears to contest the BOP‘s authority under the IFRP to establish and enforce payment amounts Davis must follow in connection with the court-ordered special assessment and restitution.² The IFRP, set forth in 28 C.F.R. §§ 545.10 and 545.11, requires participating inmates to commit a percentage of their prison employment earnings toward the payment of court-ordered restitution. The BOP sets payment amounts based on the inmate‘s financial profile, including “the inmate‘s specific obligations, institution resources, and community resources.” Id. § 545.11(b). Davis argues the BOP violated his due process rights by requiring him to participate in the payment program.

Every court to consider a challenge to the IFRP‘s constitutionality has upheld it. See McGhee v. Clark, 166 F.3d 884, 886 (7th Cir.1999) (noting the IFRP “has been uniformly upheld against constitutional attack“); Dorman v. Thornburgh, 955 F.2d 57, 58-59 (D.C.Cir.1992) (holding the IFRP does not deprive inmates of constitutional rights to due process); Johnpoll v. Thornburgh, 898 F.2d 849, 851 (2d Cir. 1990) (holding that the BOP did not exceed its authority in establishing the IFRP and that the program does not violate due process); see also United States v. Williams, 996 F.2d 231, 234 (10th Cir.1993) (acknowledging the other circuits’ holding the IFRP constitutional).

We agree with the other courts that have considered the BOP‘s authority to establish and operate the IFRP. The BOP does not violate due process by setting an individualized payment schedule for inmates for court-ordered restitution. As noted by the Second Circuit, the IFRP “serves a valid penological objective of rehabilitation by facilitating repayment of debts” and “is fully consistent with the Bureau of Prisons’ authorization, under the direction of the Attorney General, to provide for rehabilitation and reformation.” Johnpoll, 898 F.2d at 850-51.

And while Davis‘s refusal to participate in the IFRP is not without consequences, see 28 C.F.R. § 545.11(d), the benefits that can be denied are not constitutionally guaranteed. See, e.g., James v. Quinlan, 866 F.2d 627, 629-30 (3d Cir.1989) (inmates do not possess a liberty interest in prison job assignments). Moreover, mere inducements—such as the BOP‘s threat to alter Davis‘s place of confinement—without more, “do[] not infringe on a prisoner‘s protected liberty interest.” Dunn v. White, 880 F.2d 1188, 1198 (10th Cir.1989) (citing Kentucky Dep‘t of Corr. v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989)).

In sum, the BOP is thus within its constitutional authority to establish and enforce payment amounts Davis must make towards the court-ordered special assessment and restitution.

III.

Accordingly, we AFFIRM the district court‘s order dismissing Davis‘s § 2241 petition. Davis‘s motion to proceed in forma pauperis is DENIED.

TIMOTHY M. TYMKOVICH

UNITED STATES CIRCUIT JUDGE

Notes

Because Davis is proceeding pro se, we construe his petition liberally. See .

Because this claim attacks the execution of Davis‘s sentence, it is properly raised in a § 2241 petition. See .

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.