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Case 1:13-cv-00155-IMK-JES Document 36 Filed 03/04/14 Page 1 of 9 PageID #: 229

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

ERIC M. TURNER,

Petitioner,

v.

DONNA ZICKENFOSE, Warden,
Respondent.

//

CIVIL ACTION NO. 1:13CV155

(Judge Keeley)

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

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(“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

1Turner’s criminal case number is 3:97-cr-20-JPB-JES.

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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. Based on the lack of any payment schedule in
the J&C, Turner argues that the sentencing court improperly

2Turner’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. Barnett v. Hargett,
174 F.3d 1128 (10th 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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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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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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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 to include a
restitution payment schedule in the J&C. Thus, the omission of a
payment schedule was a result of clerical error, not any
intentional decision to delegate imposition of a 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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TURNER v. ZICKENFOSE

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ORDER ADOPTING REPORT & RECOMMENDATION [DKT. NO. 32]
1.

ADOPTS the Report and Recommendation in its entirety
(dkt. no. 32);
GRANTS Zickenfose’s Motion to Dismiss, or in the
alternative, Motion for Summary Judgment (dkt. no. 21);
3. MODIFIES Turner’s Judgment and Commitment Order to
include the sentencing judge’s directive that the
petitioner’s monetary penalties be repaid pursuant to a
schedule of 60% of his earned income; and
ORDERS that this case be DISMISSED WITH PREJUDICE and
STRICKEN from the docket of this Court.

2.

4.

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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