UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

DOMINGO COLON MONTANEZ, :

Plaintiff : CIVIL ACTION NO. 4:04-02569

v. : (MCCLURE, D.J.) (MANNION, M.J.) JEFFREY A. BEARD, Ph.D., :

Secretary & Commissioner of

the Pennsylvania Department of :

Corrections,

:

Defendant

:

REPORT AND RECOMMENDATION

Before the court is the defendant’s motion to dismiss the plaintiff’s

complaint. (Doc. No. 29.)

I. Procedural History

Plaintiff Domingo Colon Montanez, an inmate at the State Correctional

Institution at Fayette, LaBelle, Pennsylvania (“SCI-Fayette”), commenced this

civil rights action pursuant to 42 U.S.C. §1983 on November 29, 2004, by

filing what he styles a “preliminary complaint class action lawsuit” against the

defendant Secretary of the Department of Corrections (“DOC”). (Doc. No. 1.)

The plaintiff challenges the constitutionality of the DOC’s policy, DC-ADM 005,

“Collection of Inmate Debts,” issued pursuant to 42 PA. CONS. STAT.

§9728(b)(5) (commonly, and hereinafter, referred to as “Act 84"), by alleging

that the policy deprives him of a property interest and due process in violation

of the Fifth and Fourteenth Amendments. (Doc. No. 1.)

Attached to the complaint is a copy of an order from the United States

District Court, Eastern District of Pennsylvania, denying the plaintiff’s motion

to proceed in forma pauperis without prejudice to reasserting the action in the

appropriate district court. (Doc. No. 1, Civil Action No. 04-5133.) The district

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court noted that the plaintiff failed to allege that any events underlying his

complaint occurred in the Eastern District and the defendant does not reside

in the Eastern District. (Doc. No. 1, Civil Action No. 04-5133.)

Also attached to the complaint is the plaintiff’s application to proceed in

forma pauperis and a certified copy of his inmate account issued by the

prison. (Doc. No. 1.) The plaintiff subsequently filed an in forma pauperis

authorization form on December 2, 2004, in case it was required by the Clerk

of Court. (Doc. No. 4.) On December 15, 2005, the plaintiff received an

administrative order directing him to pay the filing fee or file an application to

proceed in forma pauperis within thirty days, or his case would be dismissed.

(Doc. No. 7.) The plaintiff filed the application to proceed in forma pauperis

on December 27, 2004. (Doc. No. 8.)

On December 30, 2004, the court issued a financial administrative

order. (Doc. No. 9.) The plaintiff, on January 10, 2005, submitted another in

forma pauperis authorization and certified copy of his inmate account. (Doc.

No. 11.)

On January 10, 2005, the plaintiff moved for “declaration for entry of

default.” (Doc. No. 12.) On January 21, 2005, the plaintiff filed an “order to

show cause for a preliminary injunction, with affidavit attached.” (Doc. No.

14.) The court denied the motion for default judgment on March 3, 2005,

because the defendant had not yet been served; in the same order, the court

ordered that process shall issue. (Doc. No. 18.) The plaintiff moved a second

time for entry of default on April 6, 2005 (Doc. No. 20), which the court again

denied on April 18, 2005 (Doc. No. 24).

On April 13, 2005, the defendant waived service of summons. (Doc. No.

23.) His answer was due on May 3, 2005, but on May 3, 2005, the defendant

moved for an extension of time to respond to the complaint. (Doc. No. 25.)

The court granted the extension, and the answer was due on May 17, 2005.

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(Doc. No. 26.) The defendant moved again for an extension of time on May

17, 2005, (Doc. No. 27) which the court granted on May 18, 2005 (Doc. No.

28). The answer was then due on May 20, 2005. Instead of answering, the

defendant moved to dismiss the complaint on May 20, 2005, (Doc. No. 29)

and filed his brief in support of the motion on June 6, 2005 (Doc. No. 30).

The plaintiff on June 27, 2005, filed “plaintiffs’ motion for enlargement

of time until injunctive relief is granted,” seeking an extension of twenty days

subsequent to the court’s issuing a preliminary injunction enjoining

Department of Corrections personnel from hindering his legal research in

which to file his brief in opposition to the defendant’s motion to dismiss. (Doc.

No. 31.) On June 29, 2005, the court denied the motion in part and granted

the motion in part: The extension of time subsequent to the issuance of

injunctive relief was denied, but the plaintiff was granted an extension of

twenty days from the order, or until July 18, 2005, to file his brief in opposition

to the defendant’s motion to dismiss. (Doc. No. 32.) The plaintiff filed his brief

in opposition to the defendant’s motion to dismiss on July 21, 2005. (Doc. No.

34.)

On August 3, 2005, the plaintiff moved for class certification to represent

all prisoners from whom the Department of Corrections had collected Act 84

assessments. (Doc. No. 35.) The court denied the motion on August 19,

2005, because the plaintiff as a pro se prisoner would not “fairly and

adequately represent the interests of the class.” (Doc. No. 36 (citing

Fed.R.Civ.P. 23(a)(4)).) The plaintiff appealed the order denying class

certification to the district court. (Doc. No. 37.)

The plaintiff moved on September 7, 2005, for leave to file a

supplemental complaint. (Doc. No. 38.) On October 4, 2005, the court issued

an order deeming the plaintiff’s motion withdrawn because of the plaintiff’s

failure to file a supplemental brief. (Doc. No. 41.)

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On November 2, 2005, the plaintiff filed a “motion for speedy disposition,

affidavit for a preliminary injunction” seeking a resolution to the motion filed on

January 21, 2005. (Doc. No. 42; see Doc. No. 14.)

On December 2, 2005, the plaintiff filed a “request for complete

discovery” and interrogatories for the defendant. (Doc. Nos. 43 & 44.) The

court struck the documents from the record because, pursuant to Local Rule

5.4, discovery materials shall not be filed with the court except as authorized.

(Doc. No. 45.)

The plaintiff on January 30, 2006, filed a “motion for order” requesting

a case management order. (Doc. No. 50.) The court on January 31, 2006,

ordered that the motion be held in abeyance pending the issuance of its

Report and Recommendation on the instant motion to dismiss. (Doc. No. 51.)

On February 7, 2006, the plaintiff filed documents to be included in the

record that substantiate or underlie his complaint. (Doc. No. 53.) The

documents include DC-ADM 005, DOC memorandums related to the

implementation of DC-ADM 005 in state correctional facilities, the plaintiff’s

sentence order, documents related to the plaintiff’s sentencing and challenges

to the Act 84 assessments in state courts, and excerpts from the plaintiff’s

“Inmate Handbook.” (Doc. No. 53.)

II. Standard of Review

The defendant’s motion to dismiss is brought pursuant to the provisions

of Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a complaint,

in whole or in part, if the plaintiff fails to state a claim upon which relief can

granted. Dismissal should only occur where it appears that the plaintiff can

prove no set of facts in support of his claim that would entitle him to relief.

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Accordingly, dismissal is

appropriate “only if, after accepting as true all of the facts alleged in the

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complaint, and drawing all reasonable inferences in the plaintiff’s favor, no

relief could be granted under any set of facts consistent with the allegations

of the complaint.” Trump Hotel and Casino Resorts, Inc. v. Mirage Resorts,

Inc., 140 F.3d 478, 483 (3d Cir. 1998) (citing ALA, Inc. v. CCair, Inc., 29 F.3d

855, 859 (3d Cir. 1994)).

In deciding a motion to dismiss, the court should generally consider only

the allegations contained in the complaint, the exhibits attached to the

complaint, matters of public record, and “undisputably authentic” documents

that plaintiff has identified as the basis of his claim. See Pension Benefit

Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

When considering a motion to dismiss under Rule 12(b)(6), the

important inquiry is not whether the plaintiff will ultimately prevail on the merits

of his claim, but only whether he is entitled to offer evidence in support of

them. Scheuer v. Rhodes, 416 U.S. 233, 236 (1974).

III. Discussion

The plaintiff argues that the defendant is liable in both his official and

individual capacities for violating his constitutional rights because the

defendant “has issue[d]” DC-ADM 005 pursuant to Act 84. The plaintiff’s

theory of liability is premised on the following facts submitted by the plaintiff,

which the court must accept as true for purposes of considering the motion to

dismiss: On January 7, 2000, the plaintiff was sentenced to imprisonment for

a period of five and one-half to twenty years in a state correctional facility.

(Doc. Nos. 1 & 53.) The sentence order also provided that the plaintiff pay the

costs of prosecution, which were assessed at $1,335.46, a $100 fine, and

restitution of $148.60. (Doc. Nos. 1 & 53.) The plaintiff was informed of his

sentence, including the financial assessments, at his sentencing. (Doc. No.

53.) In addition, he received at some subsequent point an “Inmate

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Handbook,” which explains DC-ADM 005. (Doc. No. 53.)

Pursuant to DC-ADM 005 implementing Act 84, the DOC deducted

twenty percent from deposits to the plaintiff’s inmate account. (Doc. No. 1.)

Act 84, titled “Collection of restitution, reparation, fees, costs, fines and

penalties” and enacted in 1998, authorizes the DOC “to make monetary

deductions from inmate personal accounts for the purpose of collecting

restitution or any other court-ordered obligation.” 42 PA. CONS. STAT.

§9728(b)(5) (2005). DC-ADM 005, which was issued by the defendant,

implements Act 84 by providing the procedure by which the DOC deducts the

Act 84 assessments from inmate accounts. Collection of Inmate Debts, Pa.

Dep’t of Corr., Policy No. DC-ADM 005 (issued Mar. 8, 2004, effective Apr. 7,

2004). DC-ADM 005 provides for the deduction of twenty percent of an

“inmate’s account balance and monthly income” so long as the inmate’s

balance exceeds $10.00. Id.

The plaintiff filed a grievance with the proper authorities at SCI-Layette

claiming that the Act 84 deductions were “illegal and unlawful.” (Doc. No. 1.)

The initial review upheld the deductions and denied him any relief. The

plaintiff appealed the decision to final review, but each appeal upheld the

initial finding that the deductions were authorized by law and accorded with

DOC policy. (Doc. No. 1.)

The plaintiff claims that Act 84 and DC-ADM 005 violate his

constitutional rights by depriving him of an interest in property without due

process of the law in violation of the Fifth and Fourteenth Amendments. He

argues that he is entitled to a pre-deprivation hearing, at which he could show

the hardship upon himself and his family and friends who financially support

him in prison so as to avoid the Act 84 assessments against him.

Furthermore, the statute and policy violate his constitutional right to equal

protection under the law. (Doc. No. 1.)

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The plaintiff seeks a preliminary injunction and a temporary restraining

order to prevent the defendant and the DOC from making any further Act 84

assessments. He seeks compensatory and punitive “damages in an amount

in excess of $1,000,000.00" for the deprivation of his constitutional rights,

restitution of the amounts already deducted from his inmate account, and

reimbursement of litigations costs. Further, the plaintiff seeks an injunction

enjoining DOC personnel from in any way retaliating against him because of

the lawsuit, or in the alternative, an order transferring him to a federal

correctional facility. Finally, the plaintiff seeks an order allowing him access

to more than ten law books at any time, which would allow the plaintiff to

exceed a DOC policy that allegedly violates the plaintiff’s constitutional rights

under the First Amendment. (Doc. No. 1.)

The defendant raises three grounds for dismissal: First, the defendant

argues that the plaintiff fails to state a claim for which relief can be granted

because Act 84 and DC-ADM 005 do not violate his constitutional rights to

procedural due process or equal protection. Second, the defendant argues

that he is immune from suit in his official capacity under the Eleventh

Amendment. Finally, the defendant argues that he is not liable in his

individual capacity because the plaintiff has failed to allege that the defendant

was personally involved in the events underlying the plaintiff’s claim. (Doc.

No. 30.) The motion to dismiss the plaintiff’s complaint against the defendant

should be granted on all three grounds.

A. Failure to State a Claim

1. Procedural Due Process

The Fourteenth Amendment prohibits a state from “depriv[ing] any

person of life, liberty, or property without due process of law.” U.S. CONST.

amend. XIV, § 1. “The touchstone of due process is protection of the

individual against arbitrary action of government.” Wolff v. McDonnell, 418

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U.S. 539, 558 (1974) (citing Dent v. West Virginia, 129 U.S. 114, 123 (1889)).

This means that a state can deprive a person of his life, liberty, or property

only so long as the deprivation is justified by a procedure appropriate to the

nature of the deprivation. Carey v. Piphus, 435 U.S. 247, 259 (1978).

There are three requirements directly in the Fourteenth Amendment that

are necessary to establish a procedural due process violation. Parratt v.

Taylor, 451 U.S. 527, 536 (1981), overruled on other grounds by Daniels v.

Williams, 474 U.S. 327 (1986). First, the defendant must have acted under

color of law at the time the alleged deprivation occurred. Id. Second, the

plaintiff must show the existence of a protected interest in life, liberty, or

property that has been interfered with by the state-defendant. Board of

Regents v. Roth, 408 U.S. 564, 571 (1972); Goldberg v. Kelly, 397 U.S. 254

(1970). Third, the plaintiff must then show that the procedures attendant upon

that deprivation were constitutionally insufficient. Hewitt v. Helms, 459 U.S.

460 (1983), overruled on other grounds by Sandin v. Conner, 515 U.S. 472

(1995).

The third showing requires the court to balance three competing

interests: the private interest affected by the deprivation; the risk of error in the

challenged deprivation procedures, and whether any additional or substitute

procedures would decrease that risk; and, the government’s interest in

maintaining the challenged procedures to avoid increased financial and

administrative burdens entailed in any additional or substitute procedures.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976)); see also Tillman, 221 F.3d

at 421. Under the test that the Supreme Court articulated in Mathews v.

Eldridge, one is usually entitled to notice and “some kind of hearing before”

the deprivation.” Zinermon v. Burch, 494 U.S. 113, 127 (1990) (emphasis in

original); Parratt, 451 U.S. at 537-38.

However, there are occasions where a predeprivation hearing may be

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replaced by a postdeprivation process. If a state must act quickly or a

predeprivation hearing would be impractical, then a postdeprivation process

satisfies procedural due process as long as it provides “some meaningful

means” of assessing the propriety of the deprivation. Parratt, 451 U.S. at 539;

Zinermon, 494 U.S. at 128. A predeprivation process may be impractical

where the deprivation is not a serious loss to the deprived person, the

procedures by which the person is deprived “are sufficiently reliable to

minimize the risk of erroneous determination,” or the burden upon the

government would be too great. Zinermon, 494 U.S. at 128-29; Parratt, 451

U.S. at 542-43; Mathews, 424 U.S. at 347-49. In sum, due process is not

violated when property rights are determined after the deprivation and not

before. Parratt, 451 U.S. at 540 (citing Phillips v. Comm’r, 283 U.S. 589, 596-

97 (1931)).

The first two showings are clear in this case. First, the defendant is the

secretary of the DOC. Pursuant to the authority granted to him by the

Commonwealth in Act 84, he issued an official DOC policy, DC-ADM 005,

which led to the assessments against the plaintiff’s inmate account. Second,

the plaintiff’s complaint concerns his inmate account. “Inmates have a

property interest in funds held in prison accounts. Thus, inmates are entitled

to due process with respect to any deprivation of this money.” Reynolds v.

Wagner, 128 F.3d 166, 179 (3d Cir. 1997) (internal citations omitted); see also

Tillman v. Lebanon County Corr. Facility, 221 F.3d 410, 421 (3d Cir. 2000).

Third, Act 84 and DC-ADM 005 pass constitutional scrutiny because, in

considering the facts of this case in light of the balancing test, the plaintiff is

accorded due process. The plaintiff may well be burdened by the Act 84

deductions from his inmate account, but the burden is not so great as to

outweigh the competing interests. The deductions are limited to no more than

twenty percent of the plaintiff’s funds and may never be assessed when the

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plaintiff has less than $10.00. Also, the plaintiff had prior notice of the Act 84

assessments.

Moreover, erroneous deductions are unlikely because the deductions

are routine and ministerial. Cf. Tillman, 221 F.3d at 422 (“The assessments

and takings pursuant to the program involve routine matters of accounting,

with a low risk of error.”). Thus, additional or substitute procedures, such as

a predeprivation hearing, would be of little benefit, but would increase the

Commonwealth’s financial and administrative burdens.

Finally, the Commonwealth would be increasingly burdened if it were

required to provide a predeprivation process. Every inmate under the DOC’s

supervision is potentially subject to Act 84 assessments, and every inmate

would have an interest in using a predeprivation process to protect his inmate

account, as well as to burden and harass the DOC. On the other hand, the

DOC would have to devote greater staff and other resources to responding to

the inmates’ predeprivation processes. Cf. Tillman, 221 F.3d at 422 (“[T]o

require predeprivation proceedings for what are essentially ministerial matters

would significantly increase transaction costs and essentially frustrate an

important purpose of the program, which is to reduce the county’s costs of

incarcerating prisoners.”).

The competing interests favor the Commonwealth’s procedure under

Act 84. A predeprivation process is impractical, and the postdeprivation

process–the grievance procedure, which the plaintiff undertook, albeit

unsuccessfully–is sufficient under the circumstances to satisfy procedural due

process. Cf. Tillman, 221 F.3d at 422 (“The grievance program allowed

prisoners to complain about ‘any’ matter that is ‘unjust.’ . . . In sum, the

plaintiff had an adequate postdeprivation remedy in the grievance program.”).

Consequently, the defendant’s motion to dismiss the plaintiff’s complaint

should be granted on this ground.

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2. Equal Protection

The Fourteenth Amendment prohibits a state from “deny[ing] to any

person within its jurisdiction the equal protection of the laws,” U.S. CONST.

amend. XIV § 1, “which is essentially a direction that all persons similarly

situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr.,

Inc., 473 U.S. 432 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)).

Unless a statute implicates a suspect or quasi-suspect classification by

distinguishing between people on the basis of race, alienage, national origin,

or gender, it is “presumed to be valid and will be sustained if the classification

drawn by the statute is rationally related to a legitimate state interest.” Id. at

440-42.

Neither the plaintiff nor the defendant have addressed the rationale

underlying Act 84, but the court may consider any legitimate purpose in its

equal protection analysis regardless of whether the state promulgated the

challenged legislation primarily because of that purpose or even considered

that purpose at all. Tillman, 221 F.3d at 423; Malmed v. Thornburgh, 621

F.2d 565, 569 (citing Flemming v. Nestor, 363 U.S. 603, 612 (1960);

Weinberger v. Salfi, 422 U.S. 749, 780 (1975); McGinnis v. Royster, 410 U.S.

263, 276 (1973)). A “conceivable purpose [of Act 84] is to reimburse the state

for the expense of incarceration.” Tillman, 221 F.3d at 423 (analyzing a

county regulation similar to Act 84). The state has a legitimate interest in

recouping its expenses in prosecuting and incarcerating its criminals, and Act

84 is a rational means of recouping those expenses. See id. Consequently,

Act 84 withstands the plaintiff’s Equal Protection challenge, and the

defendant’s motion to dismiss the plaintiff’s complaint should be granted on

this ground.

B. Eleventh Amendment Immunity

Federal courts cannot consider suits by private parties against states

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and their agencies unless the state has consented to the filing of such a suit.

Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241 (1985); Edelman v.

Jordan, 415 U.S. 651, 662 (1974). This immunity extends to suits asserting

civil rights violations where the state is named as a defendant. Laskaris v.

Thornburgh, 661 F.2d 23, 26 (3d Cir.1981). “Under the Eleventh Amendment,

a plaintiff other than the United States or a state may not sue a state in federal

court without the latter state’s consent unless Congress abrogates the state’s

Eleventh Amendment immunity pursuant to a constitutional provision granting

Congress that power.” Chittister v. Dep't of Cmty. & Econ. Dev., 226 F.3d

223, 226 (3d Cir.2000). The Commonwealth of Pennsylvania has not waived

its rights under the Eleventh Amendment. “By statute Pennsylvania has

specifically withheld consent [to be sued].” Laskaris, 661 F.2d at 25 (citing PA.

CONS. STAT. ANN. § 8521(b)). Section 1983 does not “abrogate the Eleventh

Amendment immunity of the States.” Quern v. Jordan, 440 U.S. 332, 345

(1979).

Furthermore, an essential element of any claim under § 1983 is that the

alleged wrongdoing was committed by a “person.” 42 U.S.C. § 1983.

“[N]either a State nor its officials acting in their official capacities are ‘persons’

under § 1983.” Will v. Michigan Dep't. of State Police, 491 U.S. 58, 71 (1989).

Consequently, the defendant’s motion to dismiss the plaintiff’s complaint

should be granted on this ground with respect to the plaintiff’s claim against

the defendant in his official capacity. The defendant issued DC-ADM 005 in

his role as secretary of the DOC. Thus, he was acting as an agent of the

state and does not constitute a person for purposes of litigation under § 1983.

C. Lack of Personal Involvement

To state a claim under §1983, the plaintiff must show that the defendant,

acting under color of state law, deprived him of a right secured by the

Constitution or laws of the United States. 42 U.S.C. §1983; Morse v. Lower

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Merion Sch. Dist., 132 F.3d 902 (3d Cir. 1997); Maine v. Thiboutot, 448 U.S.

1 (1980). Liability under §1983 is personal in nature and can only follow

personal involvement in the alleged wrongful conduct shown through specific

allegations of personal direction or actual knowledge and acquiescence.

Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997) (citing Rhode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)).

Moreover, relief cannot be granted against a defendant pursuant to

§1983 based solely on the theory of respondeat superior or the fact that the

defendant was the supervisor or superior of the person whose conduct

actually deprived the plaintiff of one of his federally protected rights under

color of state law. Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999); Hampton

v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976); Goode v.

Rizzo,506 F.2d 542, 550 (3d Cir. 1974), rev'd on other grounds, Rizzo v.

Goode, 423 U.S. 362 (1976).

Consequently, the defendant’s motion to dismiss the plaintiff’s complaint

should be granted on this ground with respect to the plaintiff’s claim against

the defendant in his individual capacity because the defendant lacked

personal involvement in the alleged deprivation of the plaintiff’s constitutional

rights. The plaintiff’s theory of the defendant’s liability is predicated on

respondeat superior. The defendant merely issued a policy in accordance

with state law. He issued DC-ADM 005 to implement Act 84 with respect to

all inmates in all state correctional facilities, not to deprive the plaintiff of any

constitutional right. Moreover, the defendant did not make any of the

deductions from the plaintiff’s inmate account pursuant to the policy.

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IV. Conclusion

On the basis of the foregoing, IT IS RECOMMENDED THAT: defendant

Beard’s motion to dismiss the plaintiff’s complaint (Doc. No. 29) be

GRANTED.

S/ Malachy E. Mannion MALACHY E. MANNION

United States Magistrate Judge

Date: February 14, 2006

O:\shared\REPORTS\2004 Reports\04-2569.01.wpd

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