FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 4, 2020 _________________________________ Christopher M. Wolpert Clerk of Court STANLEY L. O’BANION,
Petitioner - Appellant,
v. No. 19-1471 (D.C. No. 1:19-CV-02868-LTB-GPG) ANDRE MATEVOUSIAN, Warden, (D. Colo.) U.S.P. ADX-MAX,
Respondent - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, BALDOCK, and CARSON, Circuit Judges. _________________________________
Appellant Stanley Leon O’Banion, appearing pro se, appeals from the denial of
his 28 U.S.C. § 2241 petition.1 Exercising jurisdiction under 28 U.S.C. §§ 1291 and
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 A federal prisoner need not obtain a certificate of appealability to appeal a final order in a § 2241 proceeding. See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 810 n.1 (10th Cir. 1997) (citing Bradshaw v. Story, 86 F.3d 164, 165–66 (10th Cir. 1996)). 2253, we affirm the judgment of the district court. We grant his motion to proceed in
forma pauperis.
BACKGROUND
O’Banion is in the custody of the Federal Bureau of Prisons in Florence,
Colorado. According to O’Banion, in early June 2018, his case manager directed him
to sign up for an Inmate Financial Responsibility Plan (IFRP) to assist in repayment
of his court-ordered restitution. But O’Banion maintains that his case manager had
previously told him that, because he had received no money since January 2018, he
was not saving enough money to be placed on an IFRP. O’Banion complains that his
case manager refused to address his concerns, instead saying, “Either you agree or all
your incoming money will be taken.” R. at 6. Ultimately, O’Banion says, he did not
participate in an IFRP and prison officials placed him on “refuse” status and limited
his monthly commissary spending from the usual $25 to $16.25.
About a month later, the Warden encumbered O’Banion’s trust account “to
prevent depletion.” R. at 7. O’Banion protested that the encumbrance required at
least an allegation that he had intentionally depleted his account to avoid payment.
He believed that the Warden’s accusation that he had intentionally depleted his
account would affect his parole, custody level, available programs, and transfer.
O’Banion also claimed that the Warden had kept him from being able to use the
telephone. In October 2019, O’Banion filed a § 2241 petition, bringing two claims
for relief. In his first claim, O’Banion argues that by taking these actions the Warden
violated his due-process rights and unlawfully interfered with the execution of his
2 sentence. Among other things, in his § 2241 petition O’Banion requested that the
court order removal of the encumbrance and allow him to use the telephone. In his
second claim, O’Banion argues that the Warden’s actions violated Bureau of Prisons
regulations by “adversely affecting the confidence of the public in the integrity of the
United States Government[,]” R. at 8 (citing 5 C.F.R. § 2635.101), by reducing
O’Banion’s commissary spending below the $25 limit prescribed by
28 C.F.R.§ 545.11(d)(6) (2018), and by encumbering O’Banion’s trust account—a
penalty that IFRP regulation 28 C.F.R.§ 545.11 does not provide for. O’Banion
alleges that the Warden did this to harm him.
The district court referred O’Banion’s petition to a magistrate judge for a
recommendation. The magistrate judge first determined that O’Banion could at least
proceed under § 2241 because he was challenging the execution of his court-ordered
restitution under the IFRP process. The magistrate judge recommended denying the
due process claim on grounds that the IFRP is constitutionally sound and the Warden
had complied with its requirements in denying O’Banion his desired benefits. The
magistrate judge also recommended denying O’Banion’s second claim, which the
magistrate judge characterized as an Administrative Procedure Act claim—because
O’Banion “does not identify any statute authorizing review of his challenges to
implementation of the IFRP under the APA.” R. at 30.
O’Banion objected to the magistrate judge’s recommendation, arguing that the
magistrate judge had misunderstood his arguments. For instance, he disputed that he
had challenged the IFRP’s constitutionality, because he had argued that the
3 encumbrance—which is outside the IFRP’s regulations—led to the sanctions, not his
IFRP “refuse” status. The district court reviewed de novo the magistrate judge’s
recommendation, concluded it was correct, and ordered the petition denied and the
action dismissed.
DISCUSSION
We review de novo the district court’s denial of O’Banion’s § 2241 petition.
See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Because O’Banion
appears pro se, we liberally construe his pleadings but stop short at serving as his
advocate. See, e.g., Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). As we
understand it, O’Banion brings two claims for habeas relief: First, he asserts that the
Warden violated his Fifth Amendment due-process rights by encumbering his trust
account. He asserts that the Warden’s actions have imposed several sanctions against
him (no telephone use, no credit for control-unit time, and less ability for program
participation) and requests that we order these sanctions removed and “stop the
unlawful weaponization of the encumbrance at the ADX by Wardens.” Appellant’s
Br. at 7. Second, he argues that the Warden has acted contrary to agency regulations
in violation of the Administrative Procedure Act.
Due Process Claims
Review of the first claim for relief is somewhat complicated by the manner in
which O’Banion presents it. On one hand, O’Banion concedes the IFRP regulations
and the sanctions they permit are constitutional. Indeed, he repeatedly argues that the
magistrate and district court misconstrued his claim by interpreting it as an attack on
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 4, 2020 _________________________________ Christopher M. Wolpert Clerk of Court STANLEY L. O’BANION,
Petitioner - Appellant,
v. No. 19-1471 (D.C. No. 1:19-CV-02868-LTB-GPG) ANDRE MATEVOUSIAN, Warden, (D. Colo.) U.S.P. ADX-MAX,
Respondent - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, BALDOCK, and CARSON, Circuit Judges. _________________________________
Appellant Stanley Leon O’Banion, appearing pro se, appeals from the denial of
his 28 U.S.C. § 2241 petition.1 Exercising jurisdiction under 28 U.S.C. §§ 1291 and
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case 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. 1 A federal prisoner need not obtain a certificate of appealability to appeal a final order in a § 2241 proceeding. See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 810 n.1 (10th Cir. 1997) (citing Bradshaw v. Story, 86 F.3d 164, 165–66 (10th Cir. 1996)). 2253, we affirm the judgment of the district court. We grant his motion to proceed in
forma pauperis.
BACKGROUND
O’Banion is in the custody of the Federal Bureau of Prisons in Florence,
Colorado. According to O’Banion, in early June 2018, his case manager directed him
to sign up for an Inmate Financial Responsibility Plan (IFRP) to assist in repayment
of his court-ordered restitution. But O’Banion maintains that his case manager had
previously told him that, because he had received no money since January 2018, he
was not saving enough money to be placed on an IFRP. O’Banion complains that his
case manager refused to address his concerns, instead saying, “Either you agree or all
your incoming money will be taken.” R. at 6. Ultimately, O’Banion says, he did not
participate in an IFRP and prison officials placed him on “refuse” status and limited
his monthly commissary spending from the usual $25 to $16.25.
About a month later, the Warden encumbered O’Banion’s trust account “to
prevent depletion.” R. at 7. O’Banion protested that the encumbrance required at
least an allegation that he had intentionally depleted his account to avoid payment.
He believed that the Warden’s accusation that he had intentionally depleted his
account would affect his parole, custody level, available programs, and transfer.
O’Banion also claimed that the Warden had kept him from being able to use the
telephone. In October 2019, O’Banion filed a § 2241 petition, bringing two claims
for relief. In his first claim, O’Banion argues that by taking these actions the Warden
violated his due-process rights and unlawfully interfered with the execution of his
2 sentence. Among other things, in his § 2241 petition O’Banion requested that the
court order removal of the encumbrance and allow him to use the telephone. In his
second claim, O’Banion argues that the Warden’s actions violated Bureau of Prisons
regulations by “adversely affecting the confidence of the public in the integrity of the
United States Government[,]” R. at 8 (citing 5 C.F.R. § 2635.101), by reducing
O’Banion’s commissary spending below the $25 limit prescribed by
28 C.F.R.§ 545.11(d)(6) (2018), and by encumbering O’Banion’s trust account—a
penalty that IFRP regulation 28 C.F.R.§ 545.11 does not provide for. O’Banion
alleges that the Warden did this to harm him.
The district court referred O’Banion’s petition to a magistrate judge for a
recommendation. The magistrate judge first determined that O’Banion could at least
proceed under § 2241 because he was challenging the execution of his court-ordered
restitution under the IFRP process. The magistrate judge recommended denying the
due process claim on grounds that the IFRP is constitutionally sound and the Warden
had complied with its requirements in denying O’Banion his desired benefits. The
magistrate judge also recommended denying O’Banion’s second claim, which the
magistrate judge characterized as an Administrative Procedure Act claim—because
O’Banion “does not identify any statute authorizing review of his challenges to
implementation of the IFRP under the APA.” R. at 30.
O’Banion objected to the magistrate judge’s recommendation, arguing that the
magistrate judge had misunderstood his arguments. For instance, he disputed that he
had challenged the IFRP’s constitutionality, because he had argued that the
3 encumbrance—which is outside the IFRP’s regulations—led to the sanctions, not his
IFRP “refuse” status. The district court reviewed de novo the magistrate judge’s
recommendation, concluded it was correct, and ordered the petition denied and the
action dismissed.
DISCUSSION
We review de novo the district court’s denial of O’Banion’s § 2241 petition.
See Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Because O’Banion
appears pro se, we liberally construe his pleadings but stop short at serving as his
advocate. See, e.g., Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). As we
understand it, O’Banion brings two claims for habeas relief: First, he asserts that the
Warden violated his Fifth Amendment due-process rights by encumbering his trust
account. He asserts that the Warden’s actions have imposed several sanctions against
him (no telephone use, no credit for control-unit time, and less ability for program
participation) and requests that we order these sanctions removed and “stop the
unlawful weaponization of the encumbrance at the ADX by Wardens.” Appellant’s
Br. at 7. Second, he argues that the Warden has acted contrary to agency regulations
in violation of the Administrative Procedure Act.
Due Process Claims
Review of the first claim for relief is somewhat complicated by the manner in
which O’Banion presents it. On one hand, O’Banion concedes the IFRP regulations
and the sanctions they permit are constitutional. Indeed, he repeatedly argues that the
magistrate and district court misconstrued his claim by interpreting it as an attack on
4 the constitutionality of the IFRP. At the same time, though, O’Banion does appear to
challenge the constitutionality of the IFRP as applied to him—arguing, for example,
that his Fifth Amendment rights were violated because he was sanctioned under the
program without a court order.
Notwithstanding his disclaimers, to the extent that O’Banion is in fact raising a
constitutional challenge to the IFRP that is cognizable within a habeas action, we
affirm the dismissal of the claim for the reasons set forth in the magistrate’s
recommendation. The IFRP “has been implemented in other circuits . . . and has
withstood constitutional challenge.” United States v. Williams, 996 F.2d 231, 234
(10th Cir. 1993) (internal citations omitted); see also McGhee v. Clark, 166 F.3d 884,
886 (7th Cir. 1999) (“The IFRP has been uniformly upheld against constitutional
attack.”). Prison regulations, such as 5 C.F.R. § 545.11 itself, do not implicate a
constitutionally protected liberty interest unless they “impose[] atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Sandin v. Connner, 515 U.S. 472, 484 (1995); see also Driggers v. Cruz, 740 F.3d
333, 338–39 (5th Cir. 2014) (concluding conditions under IFRP do not implicate
protected liberty interest.) Here, O’Banion cites no authority suggesting a
constitutionally protected interest is implicated by any of the restrictions he now
challenges.
To the extent O’Banion argues that the Warden’s actions were taken outside
the IFRP altogether, his claims would fall outside the scope of habeas jurisdiction
under § 2241 because they would concern conditions of his confinement rather than
5 the execution of his sentence. See McIntosh, v. U.S. Parole Comm’n, 115 F.3d 809,
811–12 (10th Cir. 1997) (“[A]lthough a § 2241 attack on the execution of a sentence
may challenge some matters that occur at prison, such as deprivation of good-time
credits and other prison disciplinary matters, this does not make § 2241 actions like
‘condition of confinement’ lawsuits, which are brought under civil rights laws.”
(internal citation omitted)). We note that the district court did not interpret
O’Banion’s claims as conditions-of-confinement claims and therefore did not analyze
them under the statutory and legal rubric applicable to such claims, and we decline to
do so on appeal.
Administrative Procedure Act
In connection with his second claim for relief, O’Banion seeks review under
the APA and argues the actions taken by the Warden violate BOP regulations. On
recommendation of the magistrate judge, the district court dismissed this claim
because the APA does not authorize review of this kind. Actions subject to judicial
review under the APA include “[a]gency action[s] made reviewable by statute and
final agency action[s] for which there is no other adequate remedy in a court.”
5 U.S.C. § 704. O’Banion does not identify any statute authorizing review of the
actions taken by the BOP in this context, and we agree with the magistrate and
district court that habeas actions under 28 U.S.C. § 2241 (such as the one he brought)
provide an adequate remedy to review alleged abuses of the IFRP. The district court
therefore correctly dismissed O’Banion’s APA claim.
6 CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
Petitioner’s motion to proceed in forma pauperis is granted.
Entered for the Court
Gregory A. Phillips Circuit Judge