Case: 5:15-cv-00350-JMH Doc #: 1 Filed: 11/30/15 Page: 1 of 10 - Page ID#: 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON

[Filed Electronically]

DAVID JONES, individually and on behalf )

of all persons similarly situated,

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PLAINTIFF

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v.

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CLARK COUNTY, KENTUCKY

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Serve: Henry Branham

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County Judge-Executive

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County Courthouse

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34 South Main

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Winchester, KY 40391

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-and-

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FRANK DOYLE, individually

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Serve: Office of Clark County Jailer

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30 Wall Street

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Winchester, KY 40391

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DEFENDANTS.

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CLASS ACTION COMPLAINT

I. Introduction

1. Plaintiff David Jones files this class action complaint in his individual capacity and

on behalf of all persons who, while incarcerated or detained at the Clark County Detention Center

(“the Jail”), have been wrongfully deprived of their property without due process of law, and in

violation of their clearly-established constitutional, statutory, and common law protections, by the

policy, custom and/or practice at the Jail of charging persons admitted to the Jail – even those like

Plaintiff who were subsequently proven innocent – for the costs of their incarceration. Such costs are

routinely levied by the Jail despite the absence of a requirement by a sentencing court for

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reimbursement of the county for expenses incurred by reason of such person’s confinement, in violation of KRS § 441.265, and Plaintiff and the class’ constitutional and common law rights.
2. On information and belief, numerous persons admitted to the Jail have been subjected to deprivation of their cash and other property by operation of such policies, customs and/or practices and the wrongful conduct described below. On information and belief, such policies, customs and/or practices have caused consequential and special damages to some or all such persons in addition to the actual damages represented by the funds retained.
II. Jurisdiction and Venue 3. Plaintiff, and all others similarly situated, seek recovery of actual and punitive damages from Defendants under federal, state, and common law. As Clark County, Kentucky is the location of all acts pertinent to Plaintiff’s claims, venue is proper in this Court.
III. Parties 4. Plaintiff is a resident of Clark County. 5. Defendant Clark County, Kentucky, at all times mentioned herein, employed, was responsible for the establishment of policies either formally or by custom for, and was responsible for the employment, training, supervision and conduct of, Jailer Frank Doyle, and the officers and employees of the Jail. 6. Defendant Doyle, at all times mentioned herein, was the Clark County Jailer, and was responsible for the establishment of policies, customs and practices governing the employment, training, supervision and conduct of, officers and employees staffing the Jail, and the establishment of policies, customs and practices governing conduct and practices of the Jail’s officers and employees regarding, inter alia, property of persons like Plaintiff, and, on information and belief, individually participated in the wrongful conduct made the basis of this complaint.
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IV. Nature of Defendants’ Conduct 7. Defendants engaged in the conduct described below under color of state law, and in accordance with the policies, customs and practice of the County and the Jail. The offenses described below resulted from the failure of Defendants to employ qualified persons for positions of authority, and/or to properly or conscientiously train and supervise the conduct of such persons after their employment, and/or to promulgate appropriate operating policies and procedures either formally or by custom and practice to protect the constitutional, statutory, and common law rights of inmates in the Jail’s care and custody. Defendants created, approved or knowingly acquiesced in a policy, custom and/or practice under which constitutional, statutory and common law violations occurred, and/or promulgated operating policies and procedures either formally or by custom and practice which violate the constitutional, statutory, and common law rights of inmates in the Jail’s care and custody and after their release. Defendants’ conduct was intentional or grossly negligent, and was indicative not only of deliberate indifference to, but active malice and a total and reckless disregard for the constitutional, statutory, and common law rights of Plaintiff and the class, justifying an award of punitive damages in addition to the actual damages which Plaintiff and the class are entitled to recover.
V. Class Action 8. Plaintiff brings this action as a class action pursuant to Rule 23.01, et seq. of the Kentucky Rules of Civil Procedure. The class consists of all persons admitted to, incarcerated in, or released from the Jail who have been charged the costs of their confinement without an order of a sentencing court requiring that they reimburse the county for expenses incurred by reason of such person’s confinement.
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9. Plaintiff will fairly and adequately protect the interests of all class members. He is a member of the class and his claims are typical of the claims of all class members. Plaintiff will aggressively pursue the interests of the entirety of the class. Plaintiff’s interest in obtaining injunctive relief and actual, special, consequential and punitive damages for the violations of his statutory and common law rights and privileges are consistent with and not antagonistic of those of any other person within his class.
10. Given the events which transpired upon his admission to, incarceration at, and release from the Jail, Plaintiff alleges that Defendants have a policy, custom and/or practice of charging all persons admitted to the Jail the costs of their confinement without an order of a sentencing court requiring that they reimburse the county for expenses incurred by reason of such person’s confinement, and irrespective of such person’s innocence of the charges for which they were confined.
11. Such conduct violates the rights of persons as to whom there exists no order of a sentencing court requiring that they reimburse the county for expenses incurred by reason of such person’s confinement. The only question that remains to be resolved is whether Plaintiff and the members of the class are entitled to declaratory and injunctive relief, and to an award of compensatory and punitive damages and, if so, the extent of such an award.
12. A class action is superior to other available methods for the fair and efficient adjudication of this controversy because:
a. A multiplicity of suits with consequent burden on the Court and Defendants should be avoided;
b. It may be virtually impossible for all class members to intervene as partiesplaintiff in this action; and
c. Upon adjudication of Defendants’ liability, claims of the class members can be determined by this Court.
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VI. Facts
13. KRS 441.265 provides in relevant part that:
a. A prisoner in a county jail shall be required by the sentencing court to reimburse the county for expenses incurred by reason of the prisoner's confinement as set out in this section, except for good cause shown.
b. The jailer may adopt, with the approval of the county's governing body, a prisoner fee and expense reimbursement policy, which may include, but not be limited to, the following:
i. An administrative processing or booking fee; ii. A per diem for room and board of not more than fifty dollars ($50) per day or the actual per diem cost, whichever is less, for the entire period of time the prisoner is confined to the jail; iii. Actual charges for medical and dental treatment; and iv. Reimbursement for county property damaged or any injury caused by the prisoner while confined to the jail.
c. Rates charged may be adjusted in accordance with the fee and expense reimbursement policy based upon the ability of the prisoner confined to the jail to pay, giving consideration to any legal obligation of the prisoner to support a spouse, minor children, or other dependents. The prisoner's interest in any jointly owned property and the income, assets, earnings, or other property owned by the prisoner's spouse or family shall not be used to determine a prisoner's ability to pay.
d. Payment of any required fees may be automatically deducted from the prisoner's property or canteen account.
14. Nothing in KRS 441.265 permits a jail to charge anyone the costs of their
confinement absent a court order, or without such person’s consent, or without consideration of such
person’s support obligations or need for such funds to pay for more pressing obligations (such as
rent, electricity, water, medicine, etc.), or without regard to such person’s guilt of the offense for
which they were arrested or are detained pending trial, or without an accounting of funds collected,
retained and returned, or without regard to the consequences of such action. The legislative history
of KRS 441.265 shows that the statute was enacted only after it was amended to deny counties the
right to withhold such monies, and to require an order of a sentencing court.
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15. Plaintiff was arrested and admitted to the Jail on October 26, 2013. He remained there until his release on December 15, 2014. On April 2, 2015, all the charges for which Plaintiff was incarcerated were dismissed because Plaintiff had proved he was entirely innocent of such offenses.
16. After Plaintiff’s release from the Jail, he received a written demand from the Jail that he pay more than $4000.00 for the costs of his confinement. Plaintiff has paid $20.00 toward the asserted debt, but on advice of counsel will pay no more.
VII. Causes of Action A. Count I
17. Paragraphs 1-16 above are incorporated herein by reference and made this Paragraph 17.
18. Plaintiff’s and the class’ treatment by Defendants is the result of a continuing pattern of misconduct and is the result of policies, procedures, customs and practices of Defendants, either written or unwritten, that are systematically applied to all persons admitted to, incarcerated in, and/or released from the Jail, pursuant to which persons like Plaintiff are deprived of their property without due process of law, in violation of the due process guarantees of the Fourteenth Amendment, and are subjected to unreasonable searches and seizures in violation of the Fourth Amendment, all in violation of the Civil Rights Act of 1871, 42 U.S.C. §1983. Such practices constitute an arbitrary use of government power, and evince a total, intentional and unreasonable disregard for and deliberate indifference to the constitutional, state and common law rights of persons in the Jail’s care and custody, or who have been released from the Jail, including Plaintiff and the members of the class, and the wholesale violations of those rights likely to result from the systematic pursuit of such policies, customs and practices.
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19. As a result of the foregoing, Plaintiff and the class, through Defendants’ intentional or grossly negligent conduct, bad faith and deliberate indifference to their rights, were deprived of their property without due process of law in violation of the Fourteenth Amendment, and were subjected to an unreasonable seizure in violation of the Fourth Amendment to the United States Constitution, all in violation of the Civil Rights Act of 1871, 42 U.S.C. §1983.
B. Count II 20. Paragraphs 1-19 above are incorporated herein by reference and made this Paragraph 20. 21. By virtue of the foregoing, Defendants were negligent and grossly negligent, all to the damage of the Plaintiffs and the class.
C. Count III 22. Paragraphs 1-21 above are incorporated herein by reference and made this Paragraph 22. 23. By virtue of the foregoing, Defendants engaged in a conspiracy to wrongfully deprive Plaintiff and the class of their property, all to the damage of Plaintiff and the class.
D. Count IV 24. Paragraphs 1-23 above are incorporated herein by reference and made this Paragraph 24. 25. By virtue of the foregoing, Defendants converted the property of the Plaintiffs and the class.
E. Count V 26. Paragraphs 1-25 above are incorporated herein by reference and made this Paragraph 26.
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27. By virtue of the foregoing, Defendants fraudulently deprived the Plaintiffs and the class of their property.
F. Count VI 28. Paragraphs 1-27 above are incorporated herein by reference and made this Paragraph 28. 29. By virtue of the foregoing, Plaintiff and the class seek restitution in equity of all cash and checks seized and retained by Defendants without any order of a sentencing court.
G. Count VII 30. Paragraphs 1-29 above are incorporated herein by reference and made this Paragraph 30. 31. If KRS 441.265 can properly be interpreted to permit all or any part of Defendants’ practice of confiscating and keeping cash and checks in the possession of persons admitted to the Jail without any requirement of a sentencing court, and/or any adjudication of whether such persons are even guilty or innocent of the charges leading to their arrest, and/or any adequate and meaningful opportunity to object to or challenge such practice, among other things, such statute violates due process, constitutes an unreasonable seizure and excessive fine, is unconstitutional, violates the Fourth and Fourteenth Amendments to the United States Constitution and Sections 1, 2, 10 and 17 of the Kentucky Constitution, and Plaintiffs request that the Court declare it so and permanently enjoin its operation and implementation.
VIII. Damages 32. Paragraphs 1-31 above are incorporated herein by reference and made this Paragraph 32.
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33. As a consequence of Defendants’ wrongful conduct, Plaintiff and the members of the class have been wrongfully deprived of their property, in violation of the Plaintiff’s and the class’ constitutional, statutory, and common law rights.
34. As a result, Plaintiff and the members of the class are entitled to recover all actual, consequential and special damages arising from the conduct of Defendants. Furthermore, Defendants’ violations of the constitutional, statutory, and common law rights of the Plaintiff and the class were knowing, intentional, malicious and evinced a total and reckless disregard for the rights of Plaintiff and the class, entitling them to recover punitive damages from Defendants in order to deter such conduct in the future.
IX. Declaratory Judgment and Permanent Injunction 35. Paragraphs 1-34 above are incorporated herein by reference and made this Paragraph 35. 36. In addition to the foregoing, Plaintiff and the class request that this Court issue a declaratory judgment and injunction enjoining Defendants from any further pursuit of policies, procedures, customs or practices which resulted in persons being charged for the costs of their confinement absent an order of a sentencing court requiring that they reimburse the county for expenses incurred by reason of such person’s confinement.. WHEREFORE, Plaintiff and the class he represents request (a) that this action proceed as a class action under Rules 23.01, et seq., of the Kentucky Rules of Civil Procedure; and (b) that they and all members of the class (i) be granted the declaratory and injunctive relief requested herein, (ii) be awarded actual, consequential, special and punitive damages, and (iii) be awarded all costs, attorney fees, pre- and post-judgment interest and all other relief to which they are entitled.
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Respectfully submitted, /s/ Gregory A. Belzley Gregory A. Belzley gbelzley@aol.com Camille A. Bathurst camillebathurst@aol.com BelzleyBathurst Attorneys P.O. Box 278 Prospect, KY 40059 502/292-2452 Matt Boyd mattboydlaw@aol.com Boyd Law Office 155 East Main Street, Suite 220 Lexington, KY 40507 859/252-0222 Counsel for Plaintiff
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 UNITED STATES DISTRICT COURT EASTERN DIVISION OF KENTUCKY CENTRAL DIVISION at LEXINGTON

DAVID JONES Plaintiff,
v. CLARK COUNTY, KENTUCKY, et al.,
Defendants.

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Action No.

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5:15-cv-350-JMH

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MEMORANDUM OPINION

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AND ORDER

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***

This matter is before the Court on the motion to dismiss of

Defendants, Clark County, Kentucky and Frank Doyle. [DE 4].

Plaintiff having filed a response [DE 5], and Defendants having

replied in further support of their motion [DE 8], this matter is

ripe for decision. For the following reasons, the Court will grant

Defendants’ motion to dismiss.

I.

Plaintiff brings this putative class action complaint against

Defendants Clark County, Kentucky and Clark County Jailer, Frank

Doyle, individually, on behalf of all persons who, while

incarcerated in the Clark County Detention Center (the “Jail”),

were wrongfully assessed fees for their incarceration without due

process of law. Plaintiff alleges that charging persons admitted

to the Jail for the costs of their incarceration without an order

of a sentencing court, including those individuals who are

subsequently proven innocent, violates KRS 441.265 and the due

process rights of Plaintiff and putative class members under the Fourteenth Amendment of the United States Constitution. Plaintiff asserts state law claims for conspiracy, negligence, conversion, fraud, and violations of the Kentucky Constitution. Plaintiff also seeks a declaration that KRS 441.265 is unconstitutional and a return of all monies paid to Defendants.
Plaintiff Jones avers that he was arrested and admitted to the Jail on October 26, 2013, where he remained incarcerated until his release on December 15, 2014. Plaintiff further maintains that on April 2, 2015, the charges for which he was incarcerated were dismissed upon Plaintiff proving his innocence. After being released from the Jail, Plaintiff states that he received a written demand from the Jail to pay in excess of $4,000.00 in fees relating to his incarceration in the Jail. Plaintiff alleges that, to date, he has paid $20.00 of the bill, but on the advice of counsel, refuses to pay the remaining balance.
Defendants move to dismiss Plaintiff’s claims in their entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted.
II. A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the plaintiff’s complaint. If the plaintiff fails to state a claim upon which
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relief can be granted, a court may grant the motion to dismiss. Fed. R. Civ. P. 12(b)(6). Rule 8(a)(2) states that, at a minimum, a pleading should contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court explained that in order to survive a Rule 12(b)(6), a complaint need not contain “detailed factual allegations,” but must present something more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action’s elements will not do.” Id. at 555.
Although a court must accept as true all of the well-pleaded factual allegations contained in the complaint, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570), courts are not bound to accept conclusory allegations as true. Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265 (1986)). The factual allegations in a complaint “must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555-56 (citations omitted). Under this standard, only a claim which is “plausible on its face” will survive dismissal. Id. at 570; Tam Travel, Inc. v. Delta Airlines, Inc., 583 F.3d 896, 903 (6th Cir. 2009). “A claim is plausible when it contains facts that allow the court to draw the reasonable inference that the defendant is liable for the alleged misconduct.”
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Ashcroft, 556 U.S. at 678. If it appears beyond doubt that the plaintiff’s complaint does not state facts sufficient to “state a claim to relief that is plausible on its face,” then the claims must be dismissed. Twombly, 550 U.S. 544 at 570; Weisbarth v. Geauga Park Dist., 499 F.3d 538, 542 (6th Cir. 2007).
III. 42 U.S.C. § 1983 Claims In his Complaint, Plaintiff asserts claims under 42 U.S.C. § 1983 for alleged violations of his Fourteenth Amendment rights under the United States Constitution.1 Section 1983 provides a private cause of action against those who, under color of state law, violate a right secured by the Constitution or laws of the United States. 42 U.S.C. § 1983. A plaintiff may bring a § 1983 claim against persons in their individual or official capacity, or against a governmental entity. Kentucky v. Graham, 473 U.S. 159, 168 (1985). To establish a procedural due process claim under 42 U.S.C. § 1983, a plaintiff must establish that: (1) he was deprived of a life, liberty or property interest secured by the Fourteenth Amendment to the United States Constitution by the state, and (2) the state did not afford adequate procedural rights prior to the deprivation of the protected interest. U.S. Const. amend. XIV;
1 Because Plaintiff does not object to the dismissal of his Fourth Amendment claim, see Plaintiff’s Response to Defendants’ Motion to Dismiss at 1, the Court declines to address this claim and will dismiss it accordingly.
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see also Ky. Dept. of Corr. v. Thompson, 490 U.S. 454, 460 (1989); Hahn v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999). Absent either element, the § 1983 claim fails. Thompson, 490 U.S. at 460.
The law is clear that individuals have a property interest in their own money. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 571–73 (1972). Thus, assuming Plaintiff has been deprived of his money,2 as a threshold matter, Plaintiff must plead an underlying constitutional violation to state a claim for relief pursuant to § 1983, that is, that the state did not afford adequate procedural rights prior to the deprivation of his protected interest. Therefore, the initial question before the Court is whether charging inmates a fee for their incarceration without an order from a sentencing court, as Plaintiff alleges is required by KRS 441.265, and even though an inmate later proves his innocence, amounts to a violation of procedural due process under the Fourteenth Amendment. KRS 441.265 provides in its entirety as follows:
2 In other similar cases involving the constitutionality of jail fees within the Sixth Circuit, the fees were automatically deducted from the inmates’ canteen accounts. Hodge v. Grayson Cty., No. 4:07-cv-P60-M, 2008 U.S. Dist. LEXIS 32295 (W.D. Ky. Apr. 17, 2008); Harper v. Oldham Cty., No. 3:10-cv-P735S, 2011 WL 1399771 (W.D. Ky. Apr. 13, 2011); Whitaker v. Thornton, No. 3:13cv-P859-M, 2014 WL 585323 (W.D. Ky. Feb. 14, 2014); Cole v. Warren Cty., No. 1:11-CV-00189, 2012 WL 1950419 (W.D. Ky. May 30, 2012). Here, unlike in the previously cited cases, Jones was billed after his release rather than automatically debited while incarcerated.
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Required reimbursement by prisoner of costs of confinement; local policy of fee and expense rates; billing and collection methods.
(1) A prisoner in a county jail shall be required by the sentencing court to reimburse the county for expenses incurred by reason of the prisoner's confinement as set out in this section, except for good cause shown.
(2) (a) The jailer may adopt, with the approval of the county's governing body, a prisoner fee and expense reimbursement policy, which may include, but not be limited to, the following:
1. An administrative processing or booking fee;
2. A per diem for room and board of not more than fifty dollars ($50) per day or the actual per diem cost, whichever is less, for the entire period of time the prisoner is confined to the jail;
3. Actual charges for medical and dental treatment; and
4. Reimbursement for county property damaged or any injury caused by the prisoner while confined to the jail.
(b) Rates charged may be adjusted in accordance with the fee and expense reimbursement policy based upon the ability of the prisoner confined to the jail to pay, giving consideration to any legal obligation of the prisoner to support a spouse, minor children, or other dependents. The prisoner's interest in any jointly owned property and the income, assets, earnings, or other property owned by the prisoner's spouse or family shall not be used to determine a prisoner's ability to pay.
(3) The jailer or his designee may bill and attempt to collect any amount owed which remains unpaid. The governing body of the county may, upon the advice of the jailer, contract with one (1) or more public agencies or private vendors to perform this billing and collection. Within twelve (12) months after the date of the prisoner's release from confinement, the
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county attorney, jailer, or the jailer's designee, may file a civil action to seek reimbursement from that prisoner for any amount owed which remains unpaid.
(4) Any fees or reimbursement received under this section shall be forwarded to the county treasurer for placement in the jail's budget.
(5) The governing body of the county may require a prisoner who is confined in the county jail to pay a reasonable fee, not exceeding actual cost, for any medical treatment or service received by the prisoner. However, no prisoner confined in the jail shall be denied any necessary medical care because of inability to pay.
(6) Payment of any required fees may be automatically deducted from the prisoner's property or canteen account. If the prisoner has no funds in his account, a deduction may be made creating a negative balance. If funds become available or if the prisoner reenters the jail at a later date, the fees may be deducted from the prisoner's property or canteen account.
(7) Prior to the prisoner's release, the jailer or his designee may work with the confined prisoner to create a reimbursement plan to be implemented upon the prisoner's release. At the end of the prisoner's incarceration, the prisoner shall be presented with a billing statement produced by the jailer or designee. After the prisoner's release, the jailer or his designee may, after negotiation with the prisoner, release the prisoner from all or part of the prisoner's repayment obligation if the jailer believes that the prisoner will be unable to pay the full amount due.
(8) No per diem shall be charged to any prisoner who is required to pay a work release fee pursuant to KRS 439.179, a prisoner that has been ordered to pay a reimbursement fee by the court pursuant to KRS 534.045, or that the Department of Corrections is financially responsible for housing.
(9) No medical reimbursement, except that provided for in KRS 441.045, shall be charged to any prisoner that the Department of Corrections is financially responsible for housing.
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The precise question before the Court was examined and answered in the negative by Judge Bertelsman in Sickles v. Campbell County, which decision the Sixth Circuit affirmed. Sickles v. Campbell Cty., 439 F. Supp. 2d 751, 755 (E.D. Ky. 2006) aff'd, 501 F.3d 726 (6th Cir. 2007). In Sickles, the money that pretrial detainees had on their person was confiscated upon detention and placed in canteen accounts, in addition to any money provided by relatives or friends, and the canteen accounts were debited a fee for booking and a per diem fee for housing. Sickles, 439 F. Supp. 2d at 755. Looking to KRS 411.265(6) (which provides for the automatic deduction of fees from a prisoner’s account) and the definition of “prisoner” in KRS 441.005(3)(c)3 (which includes not just convicted individuals, but any person confined and charged with an offense), Judge Bertelsman held that “the correct reading of [KRS 441.265] is that the fees may be imposed as soon as the prisoner is booked into the jail and may be periodically deducted from the prisoner’s account as provided by local regulation.” Sickles, 439 F. Supp. 2d at 755. The Court further concluded that “[s]ince the statute is valid, the inmate owes fees that begin to accrue immediately upon his or her being booked into the jail.” Id. The reference to “sentencing court” in KRS 411.265(1),
3 “Prisoner” is defined as “any person confined in jail pursuant to any code, ordinance, law, or statute of any unit of government and who is: (a) Charged with or convicted of an offense; or (b) Held for extradition or as a material witness; or (c) Confined for any other reason.” KRS § 441.005(3).
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according to Judge Bertelsman, is to allow the court to impose a
judgment for any deficiency at sentencing which was not defrayed
by automatic deduction. Id.
On appeal, the Sixth Circuit affirmed the district court’s
decision, stating as follows:
May a municipal jail, consistent with the Due Process Clause of the Fourteenth Amendment, withhold a portion of an inmate’s canteen-account in order to cover the costs of booking, room and board without providing the inmate with a hearing before it withholds the money. Yes, we hold, and accordingly we affirm the district court’s rejection of this claim and two others.
Sickles v. Campbell County, 501 F. 3d 726, 728 (6th Cir. 2007).
Analyzing the jail’s practice of imposing fees in light of the
Mathews v. Eldridge balancing test,4 the Sixth Circuit explained
that a predeprivation hearing was not required because: (1) the
private interests at stake are “small in absolute and relative
terms”; (2) the risk of erroneous deprivation is minor; (3) the
potential benefits of additional safeguards,5 including a
4 In considering a due process claim, the Supreme Court has outlined three factors that courts must balance when determining what procedural process is owed, and when that process is due: (1) the private interest that will be affected by the official action; [2] the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and [3] the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319 (1976). 5 The grievance procedures available in Sickles included the fact that the inmates had notice of the collection fee procedures and of the inmates’ rules and rights. Sickles, 439 F. Supp. 2d 751 (E.D. Ky. 2006) aff'd, 501 F.3d 726 (6th Cir. 2007).
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predeprivation hearing, are few; and (4) the government’s interests — sharing the costs of incarceration and further offender accountability — are substantial. Id. at 731 (citing Mathews, 424 U.S. 319 (1976)).
The Court finds that none of the Mathews v. Eldridge factors as applied here distinguish Plaintiff’s case from Sickles. As to the first prong of Mathews, Plaintiff argues that the amount of money at stake exceeds the amount at issue in Sickles. However, Plaintiff has only been deprived of the $20.00 he has paid to Defendants, which is comparable to the amount of money at stake in Sickles. Sickles, 501 F.3d at 730. There is no allegation that Defendants have taken any additional action to collect the remaining balance from Plaintiff other than sending him the initial bill.
Looking to the second prong, as in Sickles, there is a minor risk of erroneous deprivation as the withholding of funds involves elementary accounting with little risk of error. Id. at 730-31. As Plaintiff alleges, the Jail’s incarceration fee policy is nondiscretionary as it applies to all persons confined in the Jail. Moreover, because Plaintiff was billed after being released, the risk of erroneous deprivation is arguably less than in Sickles where the plaintiffs were automatically debited while confined. The Court also finds the process set forth in KRS 441.265(3), which states that counties may file a civil action against a released
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prisoner to collect any amount owed which remains unpaid, to constitute an adequate safeguard given the nature and weight of the private interests at stake. An additional protection, per KRS 441.265(7), is the opportunity for prisoners to negotiate with the jailer to be released from all or part of the repayment obligation, exist. Notably, as in Sickles, there is no allegation by Plaintiff that he challenged his repayment obligation through these grievance procedures nor an allegation that these procedures would be ineffective in protecting his due process rights. Id. at 731; Parratt v. Taylor, 451 U.S. 527, 543–44 (1981), rev'd on other grounds by Daniels v. Williams, 474 U.S. 327 (1986)). As to the third Mathews factor — the government's interest — this Court finds, as others have found, that the government's interest in “sharing the costs of incarceration and furthering offender accountability ... are substantial.” Sickles, 501 F.3d at 732.
Plaintiff argues his case is distinguishable from Sickles on the basis that he has proven his innocence, yet was billed for incarceration fees, whereas in Sickles, there is no indication whether any of the plaintiffs therein were subsequently found guilty or innocent. However, the Sixth Circuit addressed and rejected this argument in Sickles when it stated “to say that a sentencing court must do one thing (requiring reimbursement even after the inmate's release) is not to say that another government entity (the county jail) may not do another (collecting room-and-
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board fees from inmates while they remain in jail).” Sickles, 501
F. 3d at 732. In other words, as this Court explained, “[i]f
subsection (6) of [KRS 441.265] (which permits the fees to be
“automatically deducted from the prisoner's property or canteen
account,”) is to be given any meaning, imposition of the fees
cannot be delayed until sentencing. […] [T]he statutes contemplate
imposition of the fees whether or not the inmate is ever
sentenced.” Sickles, 439 F. Supp. 2d at 755. Thus, if automatic
collection of fees can occur without regard to the inmate being
sentenced pursuant to Sickles, an inmate’s conviction is not a
prerequisite to the charging and imposing of fees under KRS
441.265. For this reason, Plaintiff’s attempt to distinguish his
case from Sickles fails. Without any contrary support for
Plaintiff’s interpretation of KRS 441.265, this Court finds
Sickles to be controlling. Sickles, 439 F. Supp. 2d 751 (E.D. Ky.
2006) aff'd, 501 F.3d 726 (6th Cir. 2007).6
The Court also finds persuasive the decisions of the United
States District Court for the Western District of Kentucky, which
6 In further support of their argument that the order of a sentencing court is not required to impose fees on an inmate pursuant to KRS 441.265, Defendants cite Cole v. Warren Cty., 2015 Ky. App. LEXIS 157 (Ky. App. Nov. 13, 2015), wherein the Court of Appeals of Kentucky interpreted KRS 441.265 “unambiguously permits the exact practice used by the [Warren County Jail]” of automatically deducting fees without the order from a sentencing court. However, recognizing that this decision is currently being appealed and, therefore, has not been conclusively ruled on by the Kentucky Supreme Court, we give some weight, rather than controlling weight, to the Court of Appeals decision. Rutherford v. Columbia Gas, 575 F.3d 616, 620 (6th Cir. 2009). The Court also looks to the decisions of the federal courts within the Sixth Circuit cited herein to help predict how the state’s highest court will interpret KRS 441.265. Id.
12

have followed Sickles and agreed that the billing and collection of fees pursuant to KRS 441.265 does not violate the Due Process Clause when analyzing nearly identical claims to those raised in the instant case. See Hodge v. Grayson Cty., No. 4:07-cv-P60, 2008 U.S. Dist. LEXIS 32295 (W.D. Ky. Apr. 17, 2008); Harper v. Oldham Cty., No. 3:10-cv-P735, 2011 WL 1399771 (W.D. Ky. Apr. 13, 2011); Whitaker v. Thornton, No. 3:13-cv-P859, 2014 WL 585323 (W.D. Ky. Feb. 14, 2014); Cole v. Warren Cty., No. 1:11-CV-00189, 2012 WL 1950419 (W.D. Ky. May 30, 2012).7 For the same reasons stated above with respect to Sickles, the Court rejects Plaintiff’s argument that these cases are inapplicable because the majority of the plaintiffs therein were convicted inmates. In Harper, the Western District of Kentucky explicitly recognized that one plaintiff was a pretrial detainee while the other was a convicted inmate, but proceeded to make no further distinction in its analysis regarding conviction status and ultimately concluded that “the case law in this circuit is clear that the Oldham County Jail was not required to provide Plaintiffs with a predeprivation hearing before assessing the per diem fees. As such, their Fourteenth Amendment procedural due process rights were not violated.” Harper, 2011 WL 1399771 at *6. The Sixth Circuit
7 The Court also notes that the Third and Fourth Circuits have held that the collection of fees from arrestees without a predeprivation hearing does not violate due process. See Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410 (3d Cir. 2000); Slade v. Hampton Roads Reg'l Jail, 407 F.3d 243 (4th Cir. 2005).
13

affirmed, acknowledging plaintiff’s argument that jail fees should not apply to a pretrial detainee who had not been convicted of an offense, but failing to find plaintiff’s conviction status as a distinguishing factor from Sickles. Harper v. Oldham Cty. Jail, 2011 U.S. App. LEXIS 26511 (6th Cir. Dec. 15, 2011).
As alleged in the Complaint, Plaintiff was a “prisoner” within the definition of KRS 441.005(3) (i.e. a “person confined in jail pursuant to any code, ordinance, law, or statute of any unit of government” who was “(a)charged with an offense” or “(c) confined for any other reason”), therefore, this Court holds that it was not unconstitutional to impose fees on Plaintiff without the order of a sentencing court and despite the fact that he later proved his innocence. For all of the reasons stated above, Plaintiff’s § 1983 claim for the alleged violation of his Fourteenth Amendment rights fails to state a claim upon which relief may be granted, and accordingly, Plaintiff’s § 1983 claim will be dismissed.
Interpretation of KRS 441.265 Plaintiff alleges that Defendants have misconstrued and violated KRS 441.265 by, in part, not requiring the order of a sentencing court before imposing fees on a prisoner. Plaintiff argues that the Court must look to the statute’s legislative history, which would reveal that the statute “was amended prior to its enactment specifically to reposit such power in the sentencing court.” [DE 5 at 3]. As discussed herein, the Court disagrees
14

with Plaintiff’s interpretation that KRS 441.265 is ambiguous, therefore, it would be improper to refer to the legislative history of the statute. Sickles, in addition to other persuasive precedent within the Sixth Circuit, with which this Court agrees, hold that the order of a sentencing court is not required by KRS 441.265. Sickles, 439 F. Supp. 2d 751, 755 (E.D. Ky. 2006) aff'd, 501 F.3d 726 (6th Cir. 2007); Hodge, 2008 U.S. Dist. LEXIS 32295 (W.D. Ky. Apr. 17, 2008); Harper, 2011 WL 1399771 (W.D. Ky. Apr. 13, 2011); Whitaker v, 2014 WL 585323 (W.D. Ky. Feb. 14, 2014); Cole, 2012 WL 1950419 (W.D. Ky. May 30, 2012). Nevertheless, even if Defendants were misapplying and violating KRS 441.265, because the misapplication does not result in a violation of Plaintiff’s due process rights, Plaintiff may not prevail on his § 1983 claim. Hodge, 2008 WL 1805505, at *4 (citing Sickles, 501 F.3d at 732).
Substantive Due Process To the extent Plaintiff may also be alleging a substantive due process violation, he must assert either the “denial of a right, privilege, or immunity secured by the Constitution or federal statute other than [a] procedural claim,” or an official act which “shocks the conscience.” Mertik v. Blalock, 983 F.2d 1353, 1367–68 (6th Cir. 1993). Conduct that violates substantive due process is “‘conduct intended to injure in some way unjustifiable by any government interest.’” Mitchell v. McNeil, 487 F.3d 374, 377 (6th Cir. 2007) (quoting Cty. of Sacramento v.
15

Lewis, 523 U.S. 833, 849 (1998)). The “shocks the conscience” standard is difficult to satisfy, as noted in Lewis, supra, 523 U.S. at 846 (internal citation omitted): “only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.’” If the government action does not shock the conscience, that action does not violate substantive due process so long as it is rationally related to a legitimate state interest. Valot v. Southeast Local Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1228 (6th Cir. 1993).
Because Plaintiff pleads no facts that rise to the level of a substantive due process violation, that is, Defendants’ action in collecting jail fees does not “shock the conscience,” and because recouping costs from inmates is a legitimate state interest, any claim alleging a substantive due process violation is hereby dismissed.
State Law Claims Plaintiff has also alleged state law claims against Defendants for negligence (Count II), civil conspiracy (Count III), conversion (Count IV), fraud (Count V), restitution in equity (Count VI), and violations of the Kentucky Constitution (Count VII). Defendants contend that because Plaintiff’s claims pursuant to 42 U.S.C. § 1983 fail to state a claim upon which relief may be granted, this Court should decline jurisdiction over Plaintiff’s state law claims pursuant to 28 U.S.C. §1367(c).
16

Section 1367(c) of Title 28 of the United States Code provides, in pertinent part, as follows: “The district courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Here, given that the remaining claims are state law claims, and that this case is in its infancy, the Court finds that the balance of judicial economy, convenience, fairness, and comity direct the Court to decline to exercise supplemental jurisdiction over Plaintiff’s state law claims. Accordingly, Plaintiffs' pendent state-law claims will be dismissed without prejudice.
Declaratory Judgment and Injunctive Relief In his ninth cause of action, Plaintiff seeks a declaratory judgment and injunction enjoining Defendants from “any further pursuit of policies, procedures, customs or practices which resulted in persons being charged for the costs of their confinement absent an order of a sentencing court requiring that they reimburse the county for expenses incurred by reason of such person’s confinement.” [DE 1 at 9]. Since Plaintiff has not adequately pleaded his substantive claims as set forth above, the court has no basis upon which to issue declaratory relief, and therefore, Plaintiff’s claim seeking a declaratory judgment is dismissed. Int'l Ass'n of Machinists & Aerospace Workers v. Tennessee Valley Auth., 108 F.3d 658, 668 (6th Cir. 1997).
17

Similarly, because Plaintiff cannot establish that in the absence of an injunction, he or anyone else will suffer irreparable harm with no remedy at law, an injunction is not appropriate here.
Conclusion For the reasons articulated above, Plaintiff has failed to state a claim upon which relief may be granted. Accordingly, IT IS HEREBY ORDERED that: (1) Defendants’ Motion to Dismiss [DE 4] is GRANTED; (2) All claims alleged in the Complaint [DE 1] against all Defendants are DISMISSED WITH PREJUDICE; (3) All pending motions or requests for relief are DENIED AS MOOT; (4) All deadlines and scheduled proceedings are CONTINUED GENERALLY; (5) That the Clerk shall STRIKE THIS MATTER FROM THE ACTIVE DOCKET; (6) That this Order is a FINAL AND APPEABLE ORDER and THERE IS NO JUST CAUSE FOR DELAY. This the 11th day of March, 2016.
18

19

 
 Case: 5:15-cv-00350-JMH Doc #: 10 Filed: 03/11/16 Page: 1 of 2 - Page ID#: 81

UNITED STATES DISTRICT COURT EASTERN DIVISION OF KENTUCKY CENTRAL DIVISION at LEXINGTON

DAVID JONES Plaintiff,
v. CLARK COUNTY, KENTUCKY, et al.,
Defendants.

)

)

)

)

Action No.

)

5:15-cv-350-JMH

)

)

JUDGMENT

)

)

***

In accordance with the Memorandum Opinion and Order of even

date and entered contemporaneously herewith, IT IS HEREBY ORDERED:

(1) Judgment is entered in favor of Defendants, Clark

County, Kentucky, and Frank Doyle;

(2) That this action shall be and the same hereby is

DISMISSED AND STRICKEN FROM THE ACTIVE DOCKET.

(3) All pending motions or requests for relief shall be and

the same hereby are DENIED AS MOOT;

(4) That all scheduled proceedings shall be and the same

hereby are CONTINUED GENERALLY; and

(5) That this Order is FINAL AND APPEABLE and THERE IS NO

JUST CAUSE FOR DELAY.

This the 11th day of March, 2016.

Case: 5:15-cv-00350-JMH Doc #: 10 Filed: 03/11/16 Page: 2 of 2 - Page ID#: 82 2

 
 Case: 16-5295 Document: 34-2 Filed: 12/19/2016 Page: 1

NOT RECOMMENDED FOR PUBLICATION File Name: 16a0684n.06

FILED
Dec 19, 2016
DEBORAH S. HUNT, Clerk

No. 16-5295

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

DAVID JONES, Individually and on behalf of all )

persons similarly situated

)

)

Plaintiff-Appellant,

)

)

v.

)

)

CLARK COUNTY, KENTUCKY; FRANK DOYLE, )

Individually

)

)

Defendants-Appellees.

)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY

BEFORE: MERRITT, ROGERS, and KETHLEDGE, Circuit Judges. ROGERS, Circuit Judge. This case presents a federal procedural due process challenge
to the practice of Kentucky jailers of sending a bill for incarceration costs to jailed prisoners who have subsequently been discharged without any sentence. After arrest, David Jones was admitted to the Clark County Detention Center. He spent fourteen months in jail, then left, and, five months thereafter, the accusations against him were dismissed. Clark County then billed Jones $4,000 for the costs of his incarceration. Jones paid $20, stopped paying, and sued Clark County and its jailor, asserting § 1983 and state claims both individually and on behalf of a class. The district court dismissed the federal claim and declined to exercise supplemental jurisdiction over the state claims. Jones appeals, arguing once again that he has been deprived of procedural due process by the County and the County Jailor. Because Kentucky allowed Jones to challenge

Case: 16-5295
No. 16-5295 Jones v. Clark Cty.

Document: 34-2

Filed: 12/19/2016

Page: 2

the bill by refusing to pay it, Jones’s  procedural  due  process  rights  have  not  been  violated. We

do not have before us the separate question of whether federal substantive due process principles

permit the state to legislate the reimbursement obligation for which Jones was billed.

Kentucky’s   pay-for-your-own-incarceration statute generally requires prisoners to

reimburse the jailing county for the costs of their incarceration. KRS 441.265. Ordinarily, the

prisoners   “shall   be   required”   to   do   so   “by   the   sentencing   court.”      KRS 441.265(1). But the

jailing   county   may   compel   at   least   a   part   of   that   reimbursement   without   a   sentencing   court’s  

order,   because   the   jailing   county   may   “automatically   deduct[]”   funds   “from   the   prisoner’s  

property  or  canteen  account”  to  ensure  payment  of  the  fees.    KRS 441.265(6). Not all prisoners

have   to   pay   for   their   incarceration.      Prisoners   do   not   pay   if   “the   Department   of   Corrections   is  

financially   responsible   for   housing”   the   prisoner,   KRS 441.265(8), and the Department of

Corrections appears to be financially responsible   for   housing   “prisoners   charged   with   or  

convicted   of   violations   of   state   law,”   KRS 441.206(1)–(2). Convicted and indicted prisoners,

therefore, appear not to be billed for their incarceration. Merely arrested prisoners, who fail to

post bond and are incarcerated, may be billed after release, even if all charges against them are later dismissed, leaving them with no convictions and no sentences.1

Here, accepting as true all of its well-pleaded  factual  allegations,  Jones’s  complaint  sets  

out the following  facts.    On  October  26,  2013,  David  Jones  was  “arrested  and  admitted”  to  the  

Clark County Detention Center. He stayed there until December 15, 2014. On April 2, 2015, the

accusations against Jones were dropped “because   [Jones]   proved   he   was   entirely   innocent   of  

such  offenses.”    After  his  release,  Jones  received  a  bill  from  the  Clark  County  Detention  Center  

1 While a Kentucky court has approved the automatic withholdings from non-sentenced prisoners as consistent with Kentucky law, see Cole v. Warren County, 495 S.W.3d 712 (Ky. Ct. App. 2016), and while this court has approved that practice as consistent with the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, see Sickles v. Campbell Cty., 501 F.3d 726 (6th Cir. 2007), no court appears to have addressed the lawfulness of billing a released prisoner who was never convicted or sentenced, and whose charges were ultimately dismissed.
-2-

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to   pay   “more   than   $4,000   for   the   costs   of   his   confinement.”      Jones   initially   paid   $20;;   he   then

stopped paying, on  his  counsel’s  advice.    

The  complaint  does  not  plead  why  Jones  was  arrested  or  what  Jones’s  bail  was,  if  any.    It  

also does not plead when, and with what, Kentucky formally charged Jones, before dismissing

those charges. Thus the complaint does not allege that Jones was billed for incarceration when

Kentucky gave Jones no option but to stay in jail; Jones may have been incarcerated because he

was allowed, but failed, to post bond.

Jones sued Clark County and Frank Doyle, the Clark County Jailer, both individually and

on behalf of all persons who were deprived of their property without due process of law when

the Clark County Detention Center billed them for the costs of their incarceration without an

order of a sentencing court. The complaint alleged that requiring prisoners to pay for their own

incarceration, where no trial court has convicted the prisoners and no sentencing court has

ordered the payments, violated Kentucky law and the Fourth and Fourteenth Amendments of the

U.S. Constitution. The complaint also asserted various state-law claims of conspiracy,

negligence, conversion, fraud, and violations of the Kentucky Constitution.

Defendants Clark County and Boyle moved to dismiss all claims. As a part of that

motion, the defendants argued that Jones had not alleged a viable claim of violation of the Fourth

Amendment.      Jones   responded,   opposing   the   motion   to   dismiss,   but   “not   object[ing]”   to   the  

dismissal of his Fourth Amendment claims.

The district court granted the motion to dismiss, dismissing the federal claims with

prejudice, and dismissing the state claims without prejudice. Jones v. Clark Cty., No. 5:15-cv-

350-JMH, 2016 WL 1050743 (E.D. Ky. Mar. 11, 2016). Recognizing that Jones had not

objected to the dismissal of his Fourth Amendment claim, Jones, 2016 WL 1050743, at *2 n.1,

-3-

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the   district   court   analyzed   only   whether   Jones’s   due   process   rights   under   the   Fourteenth  

Amendment had been violated, see id. at *2.    In  the  context  of  Jones’s  §  1983  claim,  then,  the  

two issues were whether Jones was deprived of a protected property interest and whether

Kentucky had failed to provide adequate process for that deprivation. Id. (citing Ky.   Dep’t   of  

Corr. v. Thompson, 490 U.S. 454, 460 (1989)). Assuming that Jones had a property interest in

the $20 of which he was deprived, id. (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,

571–73 (1972)),  the  district  court  concluded  that  Jones’s  due  process  rights  had  not  been  violated  

under the Mathews v. Eldridge balancing test, id. at *2–*6.

In conducting the Mathews v. Eldridge balancing test, the district court relied heavily on

this   court’s  opinion  in   Sickles v. Campbell Cty., 501 F.3d 726 (6th Cir. 2007). In Sickles, this

court  considered  whether  Kentucky  had  violated  prisoners’  due process rights when it withheld a

portion   of   the   transfers   by   friends   and   families   into   the   prisoners’   canteen   accounts,   which  

contained funds that the prisoners could use to purchase goods from the commissary, without an

order of a sentencing court. See Sickles, 501 F.3d at 728–29. After balancing the factors that the

panel identified in Mathews v. Eldridge, we concluded that no predeprivation hearing was

required for the withholdings. Sickles, 501 F.3d at 731. Here, the district court found that that

analysis controlled this case, because Jones raised no successful grounds on which to distinguish

Sickles. Jones, 2016 WL 1050743, at *4.

Jones’s  procedural due process rights have not been violated. The only action taken by

the   defendants   to   get   Jones’s   money   was   to   bill   for   it   and   accept   partial   payment.      This   is   not   a  

case in which the state has confiscated or converted property,  such  as  property  in  the  prisoner’s  

pockets, or amounts sent to him by friends, or Social Security checks sent to him. Instead Jones

was merely billed. We are pointed to no authority identifying a procedural due process right not

-4-

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to be billed by the government for amounts that the billed person contends he does not owe. The

billed party, after all, still possesses and owns the money until some further process is imposed

upon him.

Stated in doctrinal terms, Jones does not have a property interest in not being billed.

The bill from Clark County, on its own, has not deprived Jones of a protected property interest.

A  protected  property  interest   is   “defined  by   existing  rules  or  understandings  that  stem  from   an  

independent source such as state law—rules or understandings that secure certain benefits and

that support claims of entitlement  to  those  benefits.”    Bd. of Regents v. Roth, 408 U.S. 564, 577

(1972). Jones points to no source of law that entitles him to enjoy his money unfettered by

government bills, correct or incorrect. An erroneously high bill from the government, without

more,   does   not   deprive   the   bill’s   recipient   of   a   protected   property   interest;;   the   IRS   does   not  

deprive a taxpayer of protected property interest every time it erroneously bills the taxpayer for

more unpaid taxes than is due. Jones’s  procedural  due  process claim thus fails at the outset.

Even if the process of billing and receiving partial payment could be thought of as a

deprivation of a property interest, such a deprivation is inherently protected by process. In this

case, process inheres in the action the government takes to get payment of the bill. The prisoner

can   refuse   to   pay   the   bill,   leaving   the   burden   on   the   jailer,   who   “may   file   a   civil   action   to   seek  

reimbursement   from   that   prisoner   for   any   amount   owed   which   remains   unpaid.”      KRS

441.265(3). In such a suit the defendant can raise all the state or federal issues he wants to

challenge his liability. In jail-reimbursement cases, in addition, a prisoner  can  “negotiat[e]”  with  

the   jailer,   and   the   jailer   may   “release   the   prisoner   from   all   or   part   of   the   prisoner’s   repayment  

obligation  if  the  jailer  believes  that  the  prisoner  will  be  unable  to  pay  the  full  amount  due.”    KRS

441.265(7).

-5-

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Formally analyzed under the three-factor Eldridge test for what process is due, Jones’s

argument fails. We balance “[1]   the   private   interest   that   will   be   affected   by   the official

action; . . . [2] the risk of an erroneous deprivation . . . and the probable value, if any, of

additional or substitute procedural safeguards; and . . . [3] the Government’s interest, including

the function involved and the fiscal and administrative burdens that the additional or substitute

procedural  requirement  would  entail.” Mathews v. Eldridge, 424 U.S. at 335.

Balancing those factors, Jones was not due much process. In Sickles, this court balanced

the factors for a different aspect of this same pay-for-your-own-incarceration regime—the aspect

that   allows   Kentucky’s   county   jailers   automatically   to   withhold   a   portion   of   transfers   into  

prisoners’  canteen  accounts,  which  contain  funds that the prisoners can use at the commissary,

without the order of a sentencing court. See Sickles, 501 F.3d at 728–29. We concluded that

only   minimal   process   was   due   and   that   Kentucky’s   pay-for-your-own-incarceration statute did

not violate due process. See id. at 731. The same conclusion is required here.

First, the private interest at stake is minimal. Jones was merely billed for the

reimbursement. No property was seized. The lack of a clearly defined property interest in the

first place suggests that the property interest is minimal. Second, any risk of an erroneous

deprivation is minor and, as the district court suggested, less than the risk in Sickles. Jones,

2016 WL 1050743, at *4. In Sickles, we assessed the risk of an erroneous deprivation when the

county  automatically  withholds  a  portion  of  transfers  into  prisoners’  accounts.    We reasoned that

the   withholding   “involves   elementary   accounting   that   has   little   risk   of   error   and   is   non-

discretionary.”    Sickles, 501 F.3d at 730.    Here,  too,  elementary  accounting  determines  Jones’s  

bill—a simple multiplication of the per diem rate and the number of days spent in prison before

formal charges. Here, too, the bill is non-discretionary—as the district court explained,

-6-

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No. 16-5295 Jones v. Clark Cty.

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“it applies  to  all  persons  confined  in  the  Jail.”   Jones, 2016 WL 1050743, at *4. Furthermore,

here, the risk of deprivation is diminished by process that the Kentucky statute provides to Jones,

but did not provide to Sickles, as indicated above. Third,  the  government’s  interest  in  being able

to proceed by billing is huge. It is hard to imagine how a government can obtain funds allegedly

owed to it without being able to send a bill. Moreover, it would be paradoxical to hold that

process should precede a bill. Due process at its core involves adequate notice, and a bill at its

essence provides notice of a debt. It would not make sense to require notice before sending a

notice.

We do not address the other argument that Jones makes at length on appeal: that he has

no obligation to pay under Kentucky’s  pay-for-your-own-incarceration statute, once it has been determined that he will not be sentenced.2 This is presented as a state-law issue rather than as a

federal issue. The district court below  declined  to  exercise  supplemental  jurisdiction  over  Jones’s  

state law claims under 28 U.S.C. § 1367. We interpret this ruling as extending to claims based

on  the  scope  of  the  Kentucky  statute,  notwithstanding  the  district  court’s  discussion  of  the  issue

as part of its due process analysis. See Jones, 2016 WL 1050743, at *6. Declining to exercise

jurisdiction over the state law issues was appropriate. “Although  [§  1983]  provides  the  citizen  

with an effective remedy against those abuses of state power that violate federal law, it does not

provide  a  remedy  for  abuses  that  do  not  violate  federal  law.”    Collins v. City of Harker Heights,

503 U.S. 115, 119 (1992). We take no position on the state law issue. If the state were to sue to

enforce the obligation, Jones could still contend that the Kentucky statute does not require him to

2 Jones declined to argue on appeal in this case—at least until oral argument—that federal substantive due process requires  that  result.    Any  such  argument  is  implicit  at  most  in  his  briefing.    “Generally  speaking[,] . . . a party does not   preserve   an   argument   by   raising   it   for   the   first   time   at   oral   argument.”      United States v. Huntington National Bank, 574 F.3d 329, 331 (6th Cir. 2009).
-7-

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pay. Counsel for the defendants in this case, however, at oral argument disavowed any further

efforts to obtain the $4,000 beyond the $20 already received.

The judgment of the district court is affirmed.

-8-

 
 Case 5:15-cv-00350-JMH As of: 01/22/2017 10:32 PM EST Page 1 of 2
APPEAL,CLOSED
U.S. District Court Eastern District of Kentucky (Lexington) CIVIL DOCKET FOR CASE #: 5:15−cv−00350−JMH

Jones v. Clark County, Kentucky et al Assigned to: Judge Joseph M. Hood Case in other court: 6CCA, 16−05295 Cause: 42:1983 Civil Rights Act
Plaintiff
David Jones Individually and on behalf of all persons similarly situated

Date Filed: 11/30/2015 Date Terminated: 03/11/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Camille Bathurst Belzley Bathurst, Attorneys P.O. Box 278 Prospect, KY 40059 502−292−2452 Email: camillebathurst@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gregory Allen Belzley Belzley Bathurst, Attorneys P.O. Box 278 Prospect, KY 40059 502−292−2452 Email: gbelzley@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Wayne Boyd Boyd Law Office, PSC 155 E. Main Street Suite 220 Lexington, KY 40507 859−252−0222 Fax: 859−252−0188 Email: mattboydlaw@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Clark County, Kentucky
Defendant Frank Doyle Individually

represented by Jeffrey C. Mando Adams, Stepner, Woltermann & Dusing, PLLC 40 W. Pike Street Covington, KY 41011 859−394−6200 Fax: 859−392−7263 Email: jmando@aswdlaw.com ATTORNEY TO BE NOTICED
represented by Jeffrey C. Mando (See above for address) ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case 5:15-cv-00350-JMH As of: 01/22/2017 10:32 PM EST Page 2 of 2

11/30/2015 11/30/2015 12/01/2015 01/14/2016 01/26/2016
01/27/2016 01/27/2016
02/08/2016 02/09/2016 03/11/2016
03/11/2016
03/13/2016 03/29/2016 12/19/2016

1 COMPLAINT ( Filing fee $400; receipt number 0643−3361939), filed by David Jones. (Attachments: # 1 Tendered Summons, # 2 Civil Cover Sheet)(LC) Modified filing date on 12/1/2015 (LC). (Entered: 12/01/2015)
3 Summons Issued as to Clark County, Kentucky, Frank Doyle; Summons issued and returned to counsel electronically (LC) (Entered: 12/01/2015)
Conflict Check run. (LC) (Entered: 12/01/2015)
4 MOTION to Dismiss for failure to state a claim by Clark County, Kentucky, Frank Doyle (Attachments: # 1 Proposed Order)(Mando, Jeffrey) (Entered: 01/14/2016)
5 RESPONSE in Opposition re 4 MOTION to Dismiss for failure to state a claim by Clark County, Kentucky, Frank Doyle filed by David Jones. (Attachments: # 1 Exhibit Motion for Discretionary Review in Cole v. Warren County, # 2 Proposed Order)(Belzley, Gregory) (Entered: 01/26/2016)
6 Proposed Agreed Order/Stipulation by Clark County, Kentucky, Frank Doyle. (Mando, Jeffrey) (Entered: 01/27/2016)
7 VIRTUAL ORDER: re 6 Proposed Agreed Order/Stipulation: The time for Defendants to file a Reply Memorandum in Support of their Motion to Dismiss 4 is extended until February 9, 2016. Signed by Judge Joseph M. Hood on 1/27/16.(LC)cc: COR (Entered: 01/27/2016)
8 REPLY to 4 Motion to dismiss filed by Clark County, Kentucky, Frank Doyle. (Mando, Jeffrey) Modified to add description on 2/9/2016 (LC). (Entered: 02/08/2016)
***MOTION SUBMITTED TO CHAMBERS of Judge Hood for review: re 4 MOTION to Dismiss for failure to state a claim by Clark County, Kentucky, Frank Doyle (LC) (Entered: 02/09/2016)
9 MEMORANDUM OPINION & ORDER: 1. Dft's motion to dismiss 4 is GRANTED. 2. All claims alleged in the complaint against dfts are DISMISSED WITH PREJUDICE. 3. All pending motions are DENIED AS MOOT. 4. All deadlines and scheduled proceedings are CONTINUED GENERALLY. 5. The Clerk shall STRIKE THIS MATTER FROM THE ACTIVE DOCKET. 6. This order is a FINAL AND APPEALABLE ORDER and THERE IS NO JUST CAUSE FOR DELAY. Signed by Judge Joseph M. Hood on 3/11/2016.(LC)cc: COR (Entered: 03/11/2016)
10 JUDGMENT: 1. Judgment is entered in favor of dfts. 2. This action is DISMISSED AND STRICKEN FROM THE ACTIVE DOCKET. 3. All pending motions are DENIED AS MOOT. 4. All scheduled proceedings are CONTINUED GENERALLY. 5. This Order is FINAL AND APPEALABLE and THERE IS NO JUST CAUSE FOR DELAY. Signed by Judge Joseph M. Hood on 3/11/2016.(LC)cc: COR (Entered: 03/11/2016)
11 NOTICE OF APPEAL as to 9 Memorandum Opinion & Order, Terminate Motions,, 10 Judgment, by David Jones. Filing fee $ 505, receipt number 0643−3435081. (Belzley, Gregory) (Entered: 03/13/2016)
USCA Case Number 16−5295 Case Manager Cheryl Borkowski for 11 Notice of Appeal filed by David Jones. (LC) (Entered: 03/29/2016)
12 INFORMATION COPY OF ORDER/JUDGMENT of USCA as to 11 Notice of Appeal filed by David Jones Appeal − judgment of the District Court is affirmed − Mandate to issue. (Attachments: # 1 cover ltr)(KJR) (Entered: 12/19/2016)