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

By way of relevant background, on November 29, 2004, the plaintiff, an

inmate at the State Correctional Institution at Fayette, (“SCI-Fayette”),

LaBelle, Pennsylvania, commenced this civil rights action pursuant to 42

U.S.C. §1983. (Doc. No. 1.) The plaintiff challenges the constitutionality of

the Department of Corrections’, (“DOC”), policy, DC-ADM 005, “Collection of

Inmate Debts,” issued pursuant to 42 Pa.C.S. §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.)

An order directing process was issued, (Doc. No. 18), and a motion to

dismiss was subsequently filed on behalf of the defendant. (Doc. No. 29).

After the motion was fully briefed, (Doc. Nos. 30 & 34), by report dated

February 14, 2006, the undersigned recommended that the defendant’s

motion to dismiss be granted. (Doc. No. 54). In recommending dismissal of

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1The court also found: (1) to the extent that the defendant was being

sued in his official capacity, he was entitled to Eleventh Amendment immunity,

and (2) to the extent that the plaintiff was basing his claim against the

defendant based upon a theory of respondeat superior, his complaint should

be dismissed for failure to state a claim upon which relief can be granted.

2

the plaintiff’s complaint, the undersigned found, in part, with respect to the

plaintiff’s due process claim, that the plaintiff had adequate post-deprivation

remedies, such that his complaint failed to state a claim upon which relief can

be granted1. The plaintiff filed objections to the report on April 10, 2006.

(Doc. No. 57).

By order dated April 24, 2006, the district judge found the plaintiff’s

objections to the report to be without merit, but declined to adopt the report,

instead remanding the matter for further consideration in light of the Third

Circuit’s decision in Hale v. Beard, No. 05-3259, 2006 WL 460895 (3d Cir.

Feb. 27, 2006)(per curiam). (Doc. No. 59).

By order dated April 25, 2006, the undersigned directed the defendant

to file a supplemental brief addressing the Third Circuit’s decision in Hale, as

it applies to the instant action. The plaintiff was given time to file a responsive

brief. (Doc. No. 60).

On May 12, 2006, the defendant filed his brief addressing the Hale

decision as directed. (Doc. No. 64). The plaintiff filed a responsive brief on

May 25, 2006. (Doc. No. 65).

In Hale, as in the instant action, an inmate brought a §1983 challenge

to the constitutionality of DC-ADM 005 and 42 Pa.C.S. §9728(b)(5). The

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Honorable James M. Munley dismissed the action on preliminary

consideration finding that the State of Pennsylvania provides an adequate

post-deprivation remedy. On appeal, the Third Circuit found that inmates

seeking to enforce their due process rights in the application of DC-ADM 005

can file a §1983 action. In determining what process was due the plaintiff in

such a situation, the Third Circuit referenced the Pennsylvania Supreme

Court’s decision in Buck v. Beard, 879 A.2d 157 (Pa. 2005). In Buck, as in

the instant case, the plaintiff argued that due process required an

individualized pre-deprivation hearing before the DOC could deduct payments

from his account for fines, costs, or restitution. While the Pennsylvania

Supreme Court found that the plaintiff was entitled to pre-deprivation due

process, it also found that because §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, and could have filed an appeal with respect to that

portion of his sentence, the plaintiff was on sufficient notice and had an

opportunity to be heard pre-deprivation in order to satisfy due process. Buck,

879 A.2d at 160, 162.

In Hale, the Third Circuit indicated that:

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 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.

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2Section 4 of Act 84, which added subsections (b)(3) and (b)(5) to

Section 9728, was enacted June 18, 1998, and became effective 120 days

later. Buck v. Beard, 879 A.2d at 158 n.2. The plaintiff was sentenced on

January 7, 2000. Commonwealth v. Colon-Montanez, Court of Common

Pleas of Berks County, Criminal Docket No. CP-06-CR-0001093-1999.

3See 42 Pa.C.S. §9726(d).

4

2006 WL 460895, *2.

The parties in the instant action have had the opportunity to address the

decisions of both the Pennsylvania Supreme Court in Bucks and the Third

Circuit in Hale. (Doc. No. 64). While the plaintiff has not discussed the

Pennsylvania Supreme Court’s decision in Bucks, the defendant argues that

the facts of the instant case fit squarely within the parameters of Bucks

decision. The court agrees. Specifically, as in Bucks, the plaintiff in the

instant action had been sentenced well after the enactment of §9728(b)(5)2,

thereby putting the plaintiff on notice of the DOC’s statutory authority to

deduct funds from his account. Moreover, the plaintiff had the opportunity to

present evidence to persuade the court not to impose fines, costs, and

restitution at his sentencing hearing, at which the court was statutorily

required to consider the plaintiff’s ability to pay3. He also had a right to file an

appeal from that portion of the sentence relating to the imposition of fines,

costs and restitution. As in Bucks, the plaintiff had both notice and an

opportunity to be heard, as was required by due process. Thus, he was not

entitled to any additional judicial hearing prior to the deduction of monies from

his account by the DOC. The DOC simply carried out the lawful order of the

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sentencing court by establishing and following reasonable guidelinespursuant

to §9728(b)(5).

With respect to the Third Circuit’s decision in Hale, the plaintiff argues

that, because the Third Circuit disagreed with the reasoning of the lower court

and concluded that the availability of post-deprivation state court proceedings

did not bar the plaintiff’s federal procedural due process claims pursuant to

§1983, he is entitled to relief in this case. (Doc. No. 65, p. 6). As discussed

by the defendant, however, the finding by the Third Circuit that the plaintiff

may pursue his due process claim pursuant to §1983 does not end the

inquiry. The court must proceed to determine whether the plaintiff has, in fact,

been accorded adequate process. As discussed above, under the reasoning

of the Pennsylvania Supreme Court, the plaintiff has been accorded adequate

process.

The Third Circuit has noted, however, that it has yet to address the

specific issue of what constitutes due process under the federal Constitution,

in this situation. Traditionally, the Third Circuit indicated that in assessing a

procedural due process claim, it would balance the private interest, the

governmental interest, and the value of the available procedure in

safeguarding against an erroneous deprivation of property. Hale, 2006 WL

460895 at *534. (citations omitted).

In considering the private interest in this case, as discussed in this

court’s previous report, while the inmate may be burdened by the Act 84

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

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competing interests. Specifically, the deductions are limited to no more than

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

plaintiff has less than $10.00. Moreover, as noted by the defendant, the

private interest is limited to the plaintiff’s interest in the funds that are in his

account, and the plaintiff, in any event, has limited control over these funds

as a matter of course. Further, as noted by the defendant, the deductions

actually serve the interests of the inmate, in that they go to diminish debts and

pecuniary obligations that, if not paid during the inmate’s incarceration, would

be demanded upon his eventual release.

With respect to the governmental interest in maintaining the deductions

pursuant to DC-ADM 005 and §9728(b)(5), as set forth in this court’s previous

report, every inmate under the DOC’s supervision is potentially subject to Act

84 assessments. It is clear that the courts are not in a position to

micromanage prison administration and provide a hearing before every

deduction from an inmate’s account. Moreover, as set forth by the defendant,

the state maintains a significant interest in compensating victims and teaching

inmates responsibility by requiring them to pay their debts to society and

develop prudent financial management.

Finally, as discussed by the court in its previous report, the risk of

erroneous deductions is unlikely because the deductions are routine and

ministerial. Cf. Tillman v. Lebanon County Corr. Facility, 221 F.3d 410, 422

(3d Cir. 2000)(“The assessments and takings pursuant to the program involve

routine matters of accounting, with a low risk of error.”). Moreover, as pointed

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out by the defendant, the deduction procedures are further controlled by the

inmate grievance system, through which inmates may seek redress of any

real or perceived improprieties regarding deductions from their accounts.

Thus, any additional or substitute procedures would be of little benefit, and

would only act to increase the Commonwealth’s financial and administrative

burdens.

Considering the above balancing factors as set forth by the Third Circuit

in Hale, the interests clearly weigh in favor of the Commonwealth,

necessitating a finding that the system currently in place satisfies the

requirements of due process.

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

the defendant’s motion to dismiss be granted and the plaintiff’s

complaint be dismissed.

S/ Malachy E. Mannion 

MALACHY E. MANNION

United States Magistrate Judge

Date: June 23, 2006

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