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Ybarra v. Federal Bureau of Prisons

United States District Court, Ninth Circuit

January 15, 2014

Robert Ybarra, Plaintiff,
Federal Bureau of Prisons, et al., Defendants.


DAVID G. CAMPBELL, District Judge.

Plaintiff Robert Ybarra, who is confined in the Federal Correctional Institution (FCI) in Phoenix, Arizona, has filed a pro se civil rights Complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and an Application to Proceed In Forma Pauperis. (Doc. 1, 6.) The Court will order Defendants Phillips, Fortune, Mathesson, Simmons, Smith, McFadden, and Watts to answer Count 1 of the Complaint and will dismiss the remaining Defendant without prejudice.

I. Application to Proceed In Forma Pauperis and Filing Fee

Plaintiff's Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will assess an initial partial filing fee of $26.17. The remainder of the fee will be collected monthly in payments of 20% of the previous month's income each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.

II. Statutory Screening of Prisoner Complaints

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 681.

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) ( per curiam )).

III. Complaint

Plaintiff alleges one count for deprivation of property in violation of due process. Plaintiff sues the Federal Bureau of Prisons (BOP), Unit Manager Cherry Phillips, Counselors Yolanda Fortune and Simmons, Case Manager K. Mathesson, former Warden Dennis Smith, former BOP Western Regional Director Robert E. McFadden, National Inmate Appeals Bureau Administrator Harrell Watts. Plaintiff seeks declaratory, compensatory, and punitive relief.

Except as otherwise indicated, Petitioner alleges the following facts: on August 15, 1999, Plaintiff was sentenced in this District to serve 17 years in prison and pay $32, 181.54 in restitution. See United States v. Ybarra, No. CR98-0427-PHX-ROS, doc. 74. In 2009, Plaintiff filed a petition for writ of habeas corpus by a federal prisoner under 28 U.S.C. § 2241 asserting that BOP had wrongfully collected restitution payments from him under the Inmate Financial Responsibility Program (IFRP), where the sentencing court failed to make a schedule for payment of restitution during his incarceration as required by the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. §§ 3663-64. Ybarra v. Smith, No. CV09-1447-PHX-DGC (JRI), doc. 1. On September 17, 2010, Magistrate Judge Voss issued a Report and Recommendation that the petition be granted. Id., doc. 11. On December 21, 2010, the Court accepted the Report and Recommendation, granted the petition, and ordered the BOP to stop collecting restitution payments from Plaintiff. Id., doc. 15. The Court denied Plaintiff's request that the BOP be required to return the amounts already collected from him. Id. Plaintiff then filed a motion to hold the respondent in contempt because, after receiving the Court's order, the BOP placed Plaintiff on IFRP refusal status and sanctioned him under 25 C.F.R. § 545.11 by removing him from his job with UNICOR. Id., doc. 20. Plaintiff was informed that if he did not want to remain on IFRP refusal status, he would have to enter another contract agreeing to pay restitution under the IFRP. Id. Plaintiff signed a new contract and returned to his UNICOR job. Id. This Court denied Plaintiff's motion to hold respondent in contempt. Id. Plaintiff appealed. On March 13, 2012, the Ninth Circuit Court of Appeals affirmed the denial of the motion for contempt. Id., doc. 28.

In this case, Plaintiff alleges that he requested that the improperly collected funds be returned to him. Defendants Phillips and Fortune told Plaintiff that he had to petition the Court for return of the funds. Defendant Smith told Plaintiff that even though the funds had been improperly collected from him, he was not required to reimburse the funds absent authorization. Defendant McFadden agreed and Defendant Watts responded that Smith and McFadden had adequately addressed Plaintiff's request. Watts also told Plaintiff that BOP was not obligated to refund improperly collected funds through the IFRP. Plaintiff contends that Phillips, Mathesson, and Simmons were responsible for ascertaining Plaintiff's financial responsibilities and knew that the restitution ...

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