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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DOMINGO COLON MONTANEZ, :

:

Plaintiff, : Case No. 4: CV-04-2569

:

v. :

:

JEFFREY A. BEARD, Ph.D., : (Judge McClure)

Secretary & Commissioner of the : (Magistrate Judge Mannion)

Pennsylvania Department of :

Corrections, :

:

Defendant :

O R D E R

April 24, 2006

BACKGROUND:

On November 29, 2004, plaintiff Domingo Colon Montanez, an inmate at the

State Correctional Institution at Fayette, LaBelle, Pennsylvania commenced this

section 1983 civil rights action against the defendant Secretary Department of

Corrections. Plaintiff asserts that the Department of Corrections (“DOC”) policy,

DC-ADM 005, violates his constitutional rights by depriving him of property

without due process in violation of the Fifth and Fourteenth Amendments of the

United States Constitution. He asserts that this deprivation occurs when the DOC

makes deductions from Montanez’s inmate account pursuant to DC-ADM 005,

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issued pursuant to 42 Pa. C.S.A. § 9728(b)(5). Plaintiff seeks monetary damages

in his complaint.

The matter was initially referred to United States Magistrate Judge Malachy

Mannion.

On May 20, 2005, defendant Beard filed a motion to dismiss pursuant to

Fed. R. Civ. P. 12(b)6 for failure to state a claim upon which relief can be granted. 

On February 14, 2006, Magistrate Judge Mannion issued a fourteen-page report

recommending that Beard’s motion to dismiss be granted. Montanez was provided

an extension of time to file objections to the report and recommendation and those

objections are now before the court.

We will remand the case the magistrate judge in light of the following recent

decisions.

DISCUSSION:

I. RELEVANT LEGAL STANDARD

A district court reviews de novo those portions of a magistrate judge’s

report and recommendation to which a party objects. L.R. 72.3. The court may

“accept, reject, or modify, in whole or in part, the findings or recommendations

made by the magistrate judge.” Id.

II. 

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II. MONTANEZ’S OBJECTIONS ARE WITHOUT MERIT

On April 10, 2006, Montanez filed an eighteen-page document captioned

“Plaintiff’s Response w/ Written Objections.” (Rec. Doc. No. 57.) Plaintiff’s

arguments are largely incoherent and determining specific objections to the

magistrate’s report is difficult despite plaintiff’s line-by-line analysis of the

magistrate judge’s report.

III. RECENT DECISIONS WARRANT REMAND

Recently, a state-prisoner’s challenge to the constitutionality of DC-ADM

005 and 42 Pa. C.S.A. § 9728(b)(5) came before the United States Court of

Appeals for the Third Circuit. Hale v. Beard, No. 05-3259, 2006 WL 460895 (3d

Cir. Feb. 27, 2006) (per curiam). In Hale, the Third Circuit remanded the case to

the district court after his complaint had been dismissed for failure to state a claim

upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The

Court of Appeals noted that inmates seeking to enforce their due process rights in

the application of DC-ADM 005 can file a section 1983 action. Id. at *2. In Hale

the Third Circuit rejected the District Court’s grounds for dismissal which included

that the state of Pennsylvania provides an adequate postdeprivation remedy. Id. at

*1.

In Hale the Court of Appeals also noted the recent decision of the

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Pennsylvania Supreme Court in Buck v. Beard, 879 A.2d 157 (Pa. 2005), where the

Commonwealth’s highest court addressed what sort of process was due in this

situation. Buck, like Montanez, argued that due process required an individualized

predeprivation hearing before the Department of Corrections could deduct

payments from his account for fines, costs, or restitution. The Pennsylvania

Supreme Court held that because Section 9728(b)(5) became effective two years

before the imposition of Buck’s sentence, and because he was afforded an

opportunity at the sentencing hearing to persuade the court not to impose fines,

costs, or restitution, Buck was on sufficient notice and had an opportunity to be

heard predeprivation in order to satisfy due process. Buck, 879 A.2d at 160, 162.

In Hale, the Third Circuit stated:

While we ultimately may conclude, as the Pennsylvania

Supreme Court did, that the existence of the statute and

the proceedings attendant to sentencing provide sufficient

notice and an opportunity to be heard to satisfy the

requirements of due process, we are reluctant to address

this issue without first hearing argument from the

Commonwealth.

2006 WL 460895, *2.

Although we recognize Hale is not precedential, there are several reasons for

the instant matter to be remanded for further proceedings in light of that decision. 

Because of the Hale and Buck decisions, we are reluctant to adopt the magistrate

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judge’s report and recommendation at this stage. The defendant’s brief was filed

before Buck, and the magistrate judge’s report was filed before Hale. As the above

excerpt from Hale indicates, the Third Circuit is reluctant to address the due

process afforded under DC-ADM 005 and 42 Pa. C.S.A. § 9728(b)(5) without first

hearing argument from the Commonwealth. In the instant case the Commonwealth

has filed a motion to dismiss but without the aid of the decisions in Hale and Buck.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The report and recommendation of Magistrate Judge Mannion is

disapproved. 

2. The case is remanded to Magistrate Judge Mannion for further

proceedings consistent with the foregoing discussion. 

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

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