they do not lose their due process petitions just when they enter the walls of the prison and specifically today we're looking at what happens to money in their inmate trust accounts so they counsel hold their funds that they need for there are multiple violations of due process here one is he never received any notice and we contend that the handbook is insufficient notice it doesn't say anything aside from the fact of the department of corrections can collect money but similarly he also had no opportunity to be notice or hearing or opportunity to heard that the money is going to be just taken automatically from his account so kind of like you know this is his first time in prison he enters prison the first time he finds out that the department crushes has his authority is that he sees money missing from the count and you need it we wonder number of questions concerning what types of processes and entailed and specifically in the opinion the mountain as severe opinion from two thousand and nine there are multiple questions and and and concerns about what notice and opportunity to hurt is required before that money is taken from the account what would be satisfactory well and we're not asking for an ohio satisfactory that could be that would be certainly more than they have it's a written process to address either exhaustion from the policy and sorry no absolutely none and that's clear from the record i mean after depositions of sixteen individuals through the grievance process they have made no exceptions whatsoever secretary beard has ten years of no your honor that still is insufficient even if they he got the memo he got something in the orientation he got some type of notice because he had no opportunity to respond to that at all and then similarly any process the happen afterwards is really pretty useless in my view let me let me just press a little bit was strong in what way the costs of proceeding are going to be determined by the state are you talking about an ability to that he doesn't but my point is this you're asking us for a pretty different deprivation hearing and you're you're saying that you should have that before they take anything but he's unable to contest in the first instance the fact that there are going to be costs us right i mean i mean that isn't a larger issue is it's very difficult that's not one of the issues you've raised right or correct you're  by and it's not the what are we really talking we're talk to one percent yes exactly we're talking about his right to have control over his property his money while he's in prison which doesn't go away just because he's in prison so they have prisoners despite what the department contends do you have a lot of need for the their money they have to buy their own show they have to buy their own toothpaste they have to there's a constitutional right to have less than twenty  withdrawals which had to collect this money but in must be done within a constitutional basis so in our brains i point out if the departed questions aside to collect money only from african american images and not white in these that would be obviously a a violation of the equal protection clause similarly they must to make these collections within the constitution and so their own policy of policy d c a t m zero zero five that outlines ok twenty percent must be taken out of all incoming funds gifts income their wages that they have there and there's no altering from that and that was clear from deposition after deposition everyone said we and i just want to point out several pages that i didn't cite my grief from the joint appendix one eighty one one eighty two two zero six and two thirty seven time after time people said he has the ability to pay him say i don't want to pay twenty percent but based on response we're going to take twenty percent they can't challenge the debt something you would say this preliminary yes your honor because once that money is sent over to the county it's incredibly difficult to get it back it's not like the department's just going to issue a refund of that money grant time if they make a mistake complicated process so it is a big injury the not being able to access those funds at that time i department of corrections yet yet the department of corrections unbeknown to him starts to ducting money from his commissary account and that without any notice without any real rationale he doesn't know what activity fours i because it says important of the department refers to a court order what they're referring to is the three hundred b which is documents six seven eight and this is really their own form the department of corrections own form i not signed by the judge it's signed by a deputy quirk in my case dear thomas now that's the first time seventeen days after he gets sentenced that that they finally determine what the costs are he doesn't know this he never gets the three sentence judge he said it's not going to be department of corrections it's going to be to pace the penciling important probation parole all the different agencies and it's going to occur when you're getting paroled which should be in his case twenty years now that's a very big difference actually stalled by the judge now the department on the other hand starts deducting it and under their own doctrine they're supposed to notify the judge for clarification there's nothing in their record that notifies them in fact the record is so clear and so positive and mr martin as this case that the court below said you know where on summary judgment there's a there's a genuine issue of material fact here so we're not going to we're not we're going to allow this to proceed the only issue that the court below found was whether or not there was a statute of limitations problem big problem here well not after your opinion it is in judge internally i got a change of circumstance i need more money for medical care because in pennsylvania there's nobody book talks about here the money comes out you have to be have a co pay in the state prison so the pay for medical care so i want to get this clear the court will on summary judgment said ok the you've got a claim that's a statue of limitations under the case that you wrote in january of this year judge that you recognize a continuing violation and that's what we have in our well you know there's been a law the case doctrine law the case doctrine doesn't apply here because there's never been a decision there's never been a decision on his equal protection claim that was in is complete either by the lower court or by the by this court when it said this case backed out i would like to point out that when this case came back down from from the third circuit judge mckee wrote some very specific questions we try to follow and we did three years worth of the discovery sixteen people notice as to when there was an opportunity to be heard none of that came out and because there's no record there's no record furthermore the court will love this of supreme court pennsylvania just relied on the fact they're all there's a sentencing proceeding to raise if they're not true how could you raise it ascends you don't even procedure you can't change it whether it's twenty percent we can't pay twenty percent we can't change anything at all about you have to go back to the court we went back to the court and judge lieberman said judge the even said i never issued any such order though i need a partner to do it i think i'll just jump right into it and try to address some of the questions that arose i think the court understands the basic arguments first as far as the grievance procedure goes if you it's true that in a lot of instances the department said you found a grievance there's nothing we can do but that gets into the hole that are you under mathews the eldridge of whether you have a hearing or whether you have notice at all because when the department said there's nothing we can do that's something for the sentence in court if you had a hearing before hand the answer would be exactly the same it in most for almost all things it would be that has to do with sentencing let's talk about the value of what your colleague said that she wants to be able to her clients want to be able  approbation to challenge the assessment twenty percent why wouldn't her due process our argument permit that kind of challenge the argument as to the twenty percent that is attacking the policy which been which has been created by the department of corrections which in their estimation creates a safe harbor for any deductions which are made are going to still protect all inmates if they have a small amount of money to be able to do by postage stamps by the paste and think long doc if there's if there's ten ten dollars and if there's ten dollars in the account we could sit here and theoretically argue if they just said seven dollars i think that probably still would be sufficient but they needed ten dollars and that creates a safe  also the twenty percent when they take the twenty percent out they don't go back let's say no money was added to their camp during the entire month the next month nothing would be taken out they don't go back and the dog from money that's already in the dr from butter challenges not as the violations now it's before they begin right so sentencing occurs on day one within a certain number of days the amount other the costs are calculated and then the d l c figures out how much is going to be taken out based on the twenty percent the question is does do proper process require a hearing at that point before the deductions begin so and tell us why our hearts know our position is if you use the math use the eldridge balancing test that the necessities of life for prisoners beginning to say look he messed it up but but that would be exactly the type of thing that the sentencing court has miscalculated not the d o saying no and then gather if it was not a mis he wants to complain about is that assessment that is isn't something that needs to be addressed in a in a hearing up front that is something that could be a challenge their grievances if that was appropriate place were he would have an opportunity to go back to the to the county court and get that corrected before any actual harm to have no more because three thousand dollars is a twenty five hundred as a practical matter under this formula when you're talking about someone having fifty dollars in their account the twenty percent is the same amounts to be taken out whether it's fifteen hundred for in prison long enough well we actually are taking the twenty percent but does he know twenty percent of what i mean and i know it's price and what what's the what's being applied against what it sounds like i understand that there's a  disagreement in the record as to when these two particular prisoners were told but as a general matter mr symbols declaration explains that notice is given before  of the amount that's owed of the lines cost of the total yes and but i think you know i don't want to overstate my position because whether they were given notice or not our basic position they weren't we admit that they weren't given hearings ahead of time so what we're saying is the value of a pretty tough probation notice and hearing in these particular cases is so small i mean and you're talking about the costs of collecting you know corny cents twenty eight cents and then ministration of that sending that money back to the counties that it's a much more efficient thing to just allow that to be done look through for grievances and where maybe somebody actually had the wrong amount they can now and then they can grieve that instead of having these arguments which are really saying we don't agree with the department's policy of taking twenty percent let me ask you this question on the last one you came up last time our opinion said if the i o c policy ensures that both this trade of actions take place prior to deducting any monies from inmates accounts then current d l c procedure may be adequate to address the defendant's fourth amendment concerns it would appear that the fourteenth i said fourth and that hopefully based on the remained that there was some addressing of that problem and doesn't it seems like it's come back in the in the same posture it isn't in the same let me just add i remaindered it they were specifically thinking about the matthew v eldridge thing so it wasn't just you know the prisoners producing evidence showing how they might be harmed by not having a crude operation here and it's also the d s e having an opportunity to talk about how the procedures work how grievances might protect interests without a revision hearing and those types of things just weren't on the record when i was up here the first time well that's why higgins and our remained in is critical and it's likely that i'll do that why isn't it a procedure where oh most a thousand prisoners are coming into the system being assessed at least half of those have orders to collect money and so the volume there and also the minimal in general very small amounts of money which are being collected on a monthly basis that if you require hearings under like that oh well that would obviously be preferable to you know a full blown hearing we don't think the constitution requires that that the grievance procedure would be  suppose i mean it generally supports our position in that case inmates were charged ten dollars a day and actually fifty percent of new funds were collected from prisoners and that in this case as far as the qualified immunity goes i think the tillman decision the higgens decision the pennsylvania supreme court's decision in in um in the b these all show that at best this is a very ambiguous and unclear area with a more of a novel question and that the d s e defendants would be entitled to qualified immunity if you mention the gimbal declaration few moments ago when you look at the state of the record in the game in bold declaration doesn't that leave one with under the matthews eldridge are sufficient so the what looks like disputes of fact if you agree with our legal position with the material if you disagree it's possible that then those become material facts which would have to be decided whether mr gimbals testimony was believed by a jury as opposed to the the plaintiff in materiality in this context or lead by  no i'm saying whether it's it's legally material if you accepted mine my position whether they were given a prior hearing were prior notice would be irrelevant  because that's really what our position is that the cost to end burden on the department is is relatively high given the assets of the of the defendants and i did want to mention a couple things that the scenario of of of inmates not having two theories and not being able to mail things to the court i think that's a little bit of a misnomer because if that inmate is truly indigent well first of all they're given these things when they arrive at prison and if they're truly indigent they would be given you know basic necessities and some things looked like postage to the courts they would be allowed to under d s e procedure to still mail things they would create a deficit in their accounts and they would have to you know repay those things but but again the idea that somehow these prisoners would be deprived of essential necessity of life type things is or legal rights is we don't believe is is true and  and i think the court understood the statute of limitations as applies to mr montanus and we believe if you look at your earlier decision the court clearly remained it just on the due process cl and that there is no equal protection claim and if there was people in prison prisoners are certainly distinct from people on the outside let's let's in pediment to  violation here while i think what judge been asked me said that they're raising a due process claim so when they found out about that that's when the the clock ticks and i mean if five years later everything was gone right and money was taken irania slee from their account they might have a claim for that specific look at deprivation of notice of property and they could file a grievance but as far as the due process claim and the idea that there's something wrong with the the hearing procedure i don't think that's  series of this onto a couple points one is matthews versus eldridge can tell us the type of procedure that is needed rather than whether procedures needed here the record is very clear that the procedures that were provided are completely meaningless and specifically looking at a joint appendix page one eighty two looking at the deposition testimony it's clear that the inmates are unable to challenge what a post that provision remedy be adequate if they could contest the twenty percent no your honor because some of these issues as i said before really need to be addressed up front because once that money sent to the county it's very difficult to get it back the other thing i wanted to just point out tell me this distinguishable here because here we have different amounts for every individual so that at the chance of error is greater than a that was the problem and he believed that he filed for motions in state court trying to figure out what was going on so that's another basis to find that he did not well i think we'll have more visitors to the court room clear so that the students the judges and the clerks contract from