                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-11-2008

Duronio v. Gonzales
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2077




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Recommended Citation
"Duronio v. Gonzales" (2008). 2008 Decisions. Paper 541.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/541


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 08-2077


                                 ROGER F. DURONIO,
                                                              Appellant

                                            v.

   B.O.P. DIRECTOR ALBERTO GONZALES, U.S. Attorney General; HARLEY
  LAPPIN, Director, Federal Bureau of Prisons; JOHN YOST, Warden, FCI Loretto;
 DENNIS MILLER; C-Unit Case Worker, FCI Loretto; TONY ECKENRODE, C-Unit
                              Counselor, FCI Loretto


                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civ. No. 3-07-cv-00169)
                        District Judge: Honorable Kim R. Gibson


                       Submitted Under Third Circuit LAR 34.1(a)
                                   August 15, 2008

        Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges

                               (Filed: September 11, 2008)



                                        OPINION


PER CURIAM

      This is an appeal from the District Court’s dismissal of Roger F. Duronio’s civil

complaint. For the following reasons, we will affirm the District Court’s order.
         Duronio was convicted of securities and computer fraud in the United States

District Court for the District of New Jersey and sentenced to 97 months in prison and

ordered to pay restitution in the amount of $3,162,376. The District Court ordered that

the restitution be due immediately and recommended that Duronio participate in the

Bureau of Prisons Inmate Financial Responsibility Program (“IFRP”). After being

designated to the Federal Correctional Institution at Loretto, Pennsylvania to serve his

sentence, Duronio met with Appellees Miller and Eckenrode regarding his participation in

the IFRP. Duronio signed an IFRP Contract in which he agreed to pay $25 each quarter,

beginning in March 2007, for payment of the court-ordered restitution. In April 2007,

Duronio signed another contract in which he agreed to pay 50% of his inmate work

earnings each month as IFRP payments. His direct appeal is still pending before our

Court.

         In July 2007, Duronio filed a Bivens action alleging that he was coerced into

participating in the IFRP and further, that his participation violated the Mandatory

Victims Restitution Act of 1996 (“MVRA”) and his constitutional right to due process of

law.1 Duronio requested that any monies taken from him under the IFRP be returned.

The District Court, adopting the Report and Recommendation of a Magistrate Judge,

dismissed Appellant’s complaint for failure to state a claim. Fed. R. Civ. P. 12(b)(6).



         1
       In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971), the Supreme Court recognized a private cause of action to recover
damages against a federal agent for violations of constitutional rights.

                                             -2-
       Our standard of review of the District Court’s dismissal under Rule 12(b)(6) is

plenary. Atkinson v. LaFayette College, 460 F.3d 447, 451 (3d Cir. 2006). In reviewing

the District Court’s judgment we “accept all factual allegations as true, construe the

complaint in the light most favorable to the plaintiff, and determine whether, under any

reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v.

County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citations omitted).

       We will affirm dismissal of Duronio’s complaint, albeit for different reasons than

given by the District Court. To the extent that Duronio is challenging the restitution plan

imposed by the District Court or a violation of the MVRA, a direct appeal is the proper

vehicle for asserting those claims. Duronio’s Bivens action, claiming that his

participation in the IFRP violates the MVRA, is barred by Heck v. Humphrey, 512 U.S.

477 (1994). In Heck, the Supreme Court held that, if judgment in favor of a plaintiff in a

civil suit under 42 U.S.C. § 1983 would necessarily imply the invalidity of a prior

criminal conviction or sentence, the complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has already been invalidated.2 Id. at 486-87.

Duronio’s direct appeal is currently pending in this Court. United States v. Duronio, C.A.

No. 06-5116. Therefore, a judgment in his favor in this action would necessarily imply

the invalidity of the District Court’s order of restitution, which is part of his criminal



       2
       Although Heck involved a § 1983 action by a state prisoner, the reasoning in
Heck has been applied to bar Bivens claims. See, e.g., Williams v. Hill, 74 F.3d 1339,
1341 (D.C. Cir. 1996) (per curiam).

                                              -3-
sentence. See, e.g., United States v. Edwards, 162 F.3d 87, 91 (3d Cir. 1998) (holding

that restitution ordered under the MVRA constitutes punishment for the purposes of Ex

Post Facto Clause analysis)

       To the extent that Duronio challenges the execution of his sentence, he should

ordinarily proceed under 28 U.S.C. § 2241. See Matheny v. Morrison, 307 F.3d 709 (8th

Cir. 2002) (claims under the IFRP’s payment schedule are correctly framed as § 2241

claims brought in the district where the sentence is being carried out). Assuming

arguendo he may also proceed under Bivens, Duronio’s complaint fails because his

claims of coercion against Eckenrode and Miller are meritless.3 Duronio could have

refused to participate in the IFRP without fear of being disciplined by prison authorities.

As the Government correctly points out, had Durino declined to participate, he would

have been placed in the administrative category of “IFRP Refuse”. While being in the

“IFRP Refuse” category denies a prisoner certain privileges, it does not result in the

imposition of discipline that would trigger a constitutionally protected interest. See 28

C.F.R. 545.11(d) (listing the privileges denied to prisoners for refusing to participate in

the IFRP); see also Sandin v. Conner, 515 U.S. 472, 484 (1995) (liberty interests created

by prison regulations are limited to instances where such regulations impose atypical and

significant hardship on an inmate in relation to the ordinary incidents of prison life).


       3
          Duronio does not allege that any of the other defendants personally violated his
constitutional rights. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (“A
defendant in a civil rights action must have personal involvement in the alleged wrongs;
liability cannot be predicated solely on the operation of respondeat superior.”)

                                             -4-
Therefore, Eckenrode and Miller did not violate Duronio’s constitutional rights by

discussing the terms of the IFRP with him and encouraging him to sign a contract.

      Accordingly, we will affirm the judgment of the District Court.




                                           -5-
