F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

L E S T E R R. S H I

N A U L T , Plaintiff-Appellant
,

v

.

D I C K H A W

K S ; T A M I D O H R

M A N ; M A R T H A M C D A

N I E L ; O R

E G O N D E P A R T M E N T O F C O R

R E C T I O N S G E N E R A L S E R V I C E D I V I S I O

N , Defendants-Appellees

. N o. 13-35290

D.C. No. 3:11-cv-00436- PK

ORDER AND AMENDED OPI NI ON

A ppeal from the United States District Court for the District of Oreg on Anna J . B rown, District J udg e, Presiding

Arg ued and Submitted December 8, 2014—Seattle, W ashing ton

F iled J anuary

22, 2015 Amended April 6, 2015

B efore: Michael Daly

Hawkins, M. Marg aret McKeown,

a nd Richard C. Tallman, Circuit J udg es.

Order; Opinion by

J udg e HawkinsS H I N A U L T V

. H A W

K S 2

SUMMARY *

P risoner Civil Rights

The panel affirmed the district c ourt’s summary judg ment in an action broug ht b y an Oreg on state prisoner alleg ing that
state officials violated his rig hts under the F ou r t e enth a nd Eig hth Amendments when the O r egon Department o f Corr e ct i o ns froz e more than $60,000 in his inmate trust account to recover the cost of his incarceration.

Plai n tiff r eceived a $107,416.48 settlement from a medical liability claim ag a inst a d rug manufacturer whose products (prescribed while not in cu s t o dy ) caused him to develop diabetes. Addressing plainti f f’s procedural d

ue process claim, the panel held that a state must p rovide a predeprivation hearing before freez ing substantial inmate assets. The p anel n evertheless affirmed the district court’s summary judg ment in favor of d efendants on the basis of qualified immunity becau se the constitutional oblig ation was not clearly established at the time of the conduct.

Plaintiff also asserted that the freez e and withdr awal o f his funds constituted d e l i b e rate indifference to his medical needs under the Eig hth Amendm ent b ecause he intended to

use the funds to secure m e dical treatment following release from incarceration. Rejecting the Eig hth Amendment c laim, the panel held that prison officials did n ot deprive plaintiff o f

care d uring his period o f incarceration a nd a state’s oblig ation

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S H I N A U L T V

. H A W

K S 3

to p rovide medical care does not ex tend to shielding assets in inmate accounts.

COUNSEL

Daniel H. B o ok in and A nna-Rose Mathieson (arg ued), O’Melveny & My e r s L L P, San F rancisco, California, Pro B ono Counsel for Plaintiff-Appellant.

Ellen F

. Rosenblum, Attorney Gener a l
, A nna M. J oy ce, Solic i t or General, Peenesh H. Shah (arg ued), Assistant Attorney General, Salem, Oreg on, for D efendants-Appellees.

ORDER

The o pinion filed on J anuary 22, 2 015, and published at 776 F .3d 1027, is hereby a mended as follows:

On pag e 1032, the foll o w ing tex t should b e p laced in a

new f ootnote inserted after the words <sig nificant sum in the inmate’s account.>:

Ou r h olding is of c o urse limited to

c i rcumstances in w hich the g overnment’s interest arises f

rom recouping inc a r ceration
costs. W e need n o t and do not decide here whether, or when, a pre-deprivation h e aring is require d when the state’s action is motivated by concerns other than those at stake when the
g overnment is seeking to defray the c o sts o f incarceration.S H I N A U L T V

. H A W

K S 4

W ith this amendment, the petition for pan e l rehearing is denied. J udg es McKeown and Tallman h a v e v o ted to deny the petition for rehearing en banc and J udg e Hawkins so recommends. The f

ull court has been a dvised o f the petition for rehearing en banc and no judg e of the court has requested

a vote on whether to rehear the matter en banc. F ed. R. App. P. 35.

Appellees’ petition for rehearing and p e t ition for rehearing e n banc are DENIED

. N o further petitions f o r rehearing or rehearing

en banc will be entertained.

OP INION

HAW KI NS, Circuit J udg e:

L ester Shinault (“Shinault”) appeals the adverse g rant o f
summary judg ment on his claim that state officials vio lated his rig hts under the E ig hth a nd F ourteenth Amendment s w h en the Oreg on Department of Corrections (“ODOC”) froz e more than $60,000 in his inmate trust account to recover the cost o f h i s incarceration. The district court held that Shinault received sufficient process beca u s e the State held a h earing prior to withdrawing the fu n ds and that he did not suffer an injury under the Eig hth Amendment. W e affirm t h e d i s trict
court on the Eig hth Amendment claim because a state’s

o b lig ation to provide medical care does not ex tend to shielding assets in inmate accounts. W e di sag ree with the district court’s due p rocess determination b e cause a state must provide a pre-deprivation hearing before f reez ing substantial inmate assets. Yet, we ultimately affir m o n the basis o f qualified immunity because the constitutionalS H I N A U L T V

. H A W

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oblig ation was not clearly established at the time of the conduct. 1

F ACTUAL BACK G ROUND AND P ROCEDURAL

HISTORY

L ester Shinault was i n c arcerated w ith ODOC from May 19, 2005, until F e bruary 5, 2007, and a g ain f rom October 23, 2008, until Aug ust 14, 2009, for felony convictions. During the latter term of incarce ration, Shinault received a $107,416.48 settlement from a medical liability claim ag ainst

a drug manufacturer whose products (prescribed while not in custody ) caused him to develop diabetes.

Shinault’s counsel in the product liability suit d eposited the settlement proceeds into Shinault’s inmate trust account. ODOC establishes trust accounts for each inmate, which are subject to various reg ulations g overning accrual of interest, limitations on use and access, and offset f o r i n debtedness. OR. A D M I

N

. R. 291-158-0015 et seq. Oreg on law establishes that inmates are liable for the full cost o f their incarceration, subject to various limitations. O R

. R E V

. S T A T

. § § 179.620; 179.640. F or instance, officials must take into consideration the inmate’s ability to pay , i d

. § 179.620(1)-(2), and “the inmate’s need for funds for personal support after r e lease.” O R

. A D M I

N

. R. 291-203-0040(5). Officials have discretion to waive c ollection “based on the best interest of the inmate o r the department.” I

d. 291-203-0080.

1 T h e St ate co n ten d s th at Sh in au lt’ s claim s are b arred by s o v ereig n im m u n ity

. W h ile so v ereig n i m m u n ity b ars su its ag ain s t states an d th eir
ag en cies, Pen n h u rst S ta te S ch

. & H o sp

. v. H a ld erma n , 4 6 5 U.S. 8 9, 1 0 0 (1 9 8 4), w e d o n ’ t f

in d S h i n a u lt’ s p lead in g erro r f atal to h is claim s, p articu larly

w h ere h e h as req u ested th e su bstitu tio n o f p arties.S H I N A U L T V

. H A W

K S 6

Rely ing on this authority
, ODOC issued an order on May 29, 2009, requiring Shinault to pay $65,353.94, the e stimated
cost of his curre n t and previous incarceration. O reg on calculates the cost of incarceration by multiply ing the daily
cost of care and the number of day s an inmate is incarcerated. The daily cost of care i s the q u otient of the total cost o f inmate care across the ODOC sy stem divided by the number of inmates. T he order a dvised Shinault of his rig ht to contest the order, wh i c h he pursued by requesting a case hearing on J une 2, 2009.

On the s a m e day that Shinault requested a case hearing
, O D O C t r a n s f

e r r e d $ 6 5
, 3 5 3

. 9 4 i n t o a “ r e s e r v e d miscellaneous” sub-account in Shinault’s name. The record indicat e s t h a t, after the transfer, Shinault could no long er access or use the funds in the “reserved miscellaneous” subaccount. ODOC took the position at the administrative hearing that it was “holding ” and had “set aside” the funds.

After requesting and receiving a postponement of the administrative hearing
, Shinault’s privately retained counsel withdrew for unclear reasons about one mo n th prior to the hearing

. Shinault received OD O C ’ s ex h ibits and filing s the morning of the hearing and strug g led to rep r e s e n t himself (“Your Honor, I don’t k

n o w w h a t I ’ m doing here

. . . I ’m in left f ield here.”). He asked for a delay and the opportunity to hire n e w co u n s el, both of which were denied by the Administra t i ve L aw J udg e (“AL J ”). 2 The AL J ultimately

2 Sh i n au lt earlier f

iled an u n op p o sed m o t io n to su p p lem en t th e reco rd on ap p eal t o in clu d e th e tran s crip t o f an O cto ber 2 3
, 2 0 0 9
, ad m i n is t r a t iv e h earin g

. T h e tran s c rip t w as in clu d ed in th e ex cerp ts o f reco rd

. T h e

m o tio n is, th eref ore, d en i ed as m oo t.S H I N A U L T V

. H A W

K S 7

ordered Shinault to pay $61,3 5 2 .39, and the funds were withdrawn about one y e a r later. 3

Shinault did not appeal t h e AL J o r der. I nstead, he filed this action, alleg ing various constitut ional harms. Defendants moved f or summary judg ment on al l c l aims. A mag istrate judg e issued find ing s and recommended g ranting summary judg me n t o n all c laims. Over Shinault’s objections, the district court adopted those recommendations.

JURISDICTION AND STANDARD OF REVIEW

W e have jurisdiction under 28 U .S.C. § 1291. A g rant o f
summary judg ment is reviewed de novo. Lopez v. Smith
, 203 F .3d 1122, 1131 (9th Cir. 2000) (en ban c )

. T h e court, viewing the f

acts in the lig ht most favorabl e t o t h e plaintiff,
must d etermine whether any g enuine issues o f m a terial fact

ex ist. Id.

ANALYSIS

I. P rocedural Due P r o cess

The F ourteenth Amendment provides that no Stat e s hall “deprive any person o f life, liberty
, or property , without d ue process of law.” Due process “is a flex ible c o n c e p t that varies with the particular situ a t ion.” Zinermon v. Burch
, 494 U.S. 113, 127 (1990). Due p rocess protecti ons ex tend

3 ODOC red u ced th e o rd er f ro m $ 6 5
, 3 5 3

. 9 4 to $ 6 1 ,3 5 2 .3 9 becau se i t

w i t h d rew $ 4 ,0 88 .9 6 f

ro m t h e “ reserv ed m iscellan eo u s ” acco u n t to p ay

sev eral g arn ish m e n ts af

t er issu in g t

h e in itial o rd er. T h e acco u n t h ad

earn ed $ 8 7 .4 1 in in terest d u rin g th is in terv en in g p erio d

.S H I N A U L T V

. H A W

K S 8

only to deprivations of protected interests. See Bd. o f Regents of State Colls. v. Roth , 408 U.S. 564, 569–70 (1972).

A n individual’s property is a f undamental ex ample o f a protected interest. See F u entes v. Shevin
, 407 U.S. 67, 86 (1972). More specifically
, “[ t] h ere is no question that [ an inmate’s] interest in the funds in his prison account is a protected p roperty interest.” Q uick v. Jones
, 754 F .2d 1521, 1523 (9th Cir. 1985). Shina u l t ’s trust account funds a re within the scope of the F o urteenth Amendment.

Once a protected i n t e r est is f ound, we employ the threepart balancing test o f Mathews v. Eldridge
, 424 U.S. 319 (1976), to determine whether a pre-deprivation hearing is required and what specific procedu re s m u st be employ ed at that hearing g iven the particularities of t h e deprivation. Brewster v. Bd. of Educ.
, 149 F

. 3 d 971, 983–84 (9th Cir. 1998). T he Mathews test balances thr e e f a c t o rs: (1) the private interest affected; (2) the risk of erroneous deprivation throug h the procedures used, and the value o f a dditional safeg uards; and ( 3) the g overnment’s i n terest, including the burdens of additional procedural requirements. M a thews
, 424 U.S. at 335.

Recalling that due process varies depending on the particularities of a case, every action affecting an inmate trust account does not n e c essarily implicate a substantial private interest under the f

irst Mathews prong

. Here, however, Shinault’s interest was clearly substantial, bec a u s e ODOC deprived him o f access to a sig nificant amount of hi s f u n d s

. See Quick
, 754 F .2d a t 1 5 2 2–23 ( $66 charg e merits predeprivation process); c

f. Sickles v. Campbell Cnty.

, Ky.
, 501 F .3d 726, 730 (6th Cir. 2007) (withdrawals of $110 and $20 do not implicate substantial private interest).S H I N A U L T V

. H A W

K S 9

I n terms of the second Mathews factor, two aspects o f Oreg on’s reg u latory scheme risk erroneous deprivation. The first—calculating the daily cost o f care—involves mere arithmetic, but the calculations are more complex than f lat f ee

a r r ang ements found to involve minimal risk of error. S e e, e.g. , Slad e v

. H

a m pton Roads Reg’l Jail
, 407 F

. 3d 243, 253–54 (4th Cir. 2005) ( charg ing inma t e $1 per d ay is a “ministerial” a ct); Tillman v. Lebanon Cnt y

. Corr. F

acility
, 221 F .3d 410, 413, 422 (3d C i r

. 2 0 0 0 ) (taking $10 per day from inmate is a “ro utine matter[ ] o f accounting .”). I n fact, ODOC admits that it erred sligh t ly b y using the incorrect daily rate for one period of incarceration

. I n addition, the State’s oblig ation to determine an inmate’s ability to pay based on the inmate’s e state, nee d fo r funds for personal support, and availability of benefits is an individualiz ed decision that poses a risk o f error. O R

. A D M I N

. R. 291-203- 0040(5).

As to the third M

athews factor, the g overnment’s interest in conserving tax pay e r resources by sharing incarceration

c o s t s is substantial. Sickles
, 501 F .3d a t 731. Yet, the th i r d factor is b alanced by the need to assure that ad d i t ional procedural safeg

uards are not administratively burdensome. Montanez v. Sec’y Pa. Dep’t of Corr.
, 2014 W L 5155040, at *8 (3d Cir. Aug . 15, 2014).

The Supreme Court “usually h a s held that the Constitution requires some kind of a hearing before the State deprives a person of liberty or property .” Zinermon v. Burch
, 494 U.S. 113, 12 7 (1990) (citations omitted). So, “[ i] n situations where the State feasibly can provide a predeprivation hearing before taking property , it g enerally
must do so reg ardless of t h e a d equacy of a postdeprivationS H I N A U L T V

. H A W

K S 10

t o r t remedy to compensate for the taking .” Id. at 132. 4 However, post-depriva tion p rocess c an suffice “in limited cases” when prompt a ction is required, an important
g overnment interest is involved, and there is substantial

assurance that the deprivation is not baseless or unwarranted. Fed. Deposit Ins. Corp. v. Mallen
, 486 U.S. 2 30, 240 (1988). F or instance, temporary suspensions o f an indicted bank officer, id. at 2 40–41, a horse trainer su s pected o f doping
, Barry v

. Barchi
, 443 U.S. 5 5, 64 (1979), and a police officer based on a drug -related c harg e , Gilbert v. Homar
, 5 2 0 U .S. 924, 932 (1997), did not require pre-deprivation hearing s.

The r e s ults of the Mathews balancing test point to the need for a pre-deprivation hearing p rior to freez ing Shinault’s funds. Compared to the cases above, the State’s interest does
not require such prompt action that a pre-deprivation h earing is infeasible. W hile state officials c ould temporarily suspend individuals f

r om their jobs w ithout a hearing in o rder to preserve the integ rity of those reg ulated professions a nd protect the public, the integ rity of Or e gon’s prison sy stem does n ot d iminish if a hearing p reced e s a freez e of inmate assets, particularly because the f u n d s in fact remain in the State’s control. Nor does the financial v i a b i l i ty o f the correctional sy stem require immediate recoupment of inmate
costs g iven their insig nificance in relation to ODOC’s overall budg et. I n other wor d s, Oreg on’s interest in administering cost-effective and safe prisons is sig nificant, but recoupi n g incarcerat ion costs does not rise to a level which would

4 T h e Su p rem e Co u r t req u ired p re- d ep riv atio n h earin g s prio r to term in at in g p u

b lic- secto r em

p lo y m en t, Clevela n d Bd

. o f Ed u c. v. Lo u d ermill
, 4 70 U.S. 5 3 2
, 54 2 (1 9 8 5 ), cu ttin g o f f u tility serv ice, Memp his Lig h t, G a s & W

a ter Div. v. Cra

ft
, 43 6 U.S. 1, 1 8 (1 9 7 8 ), an d su sp en d in g a p u b lic- sch o o l stu d en t, Go ss v. Lo p ez , 4 1 9 U.S. 5 6 5 , 5 7 9 (1 9 7 5 ).S H I N A U L T V

. H A W

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obviate the need f

or a p re-deprivation hearing in advance o f action.

Given Shinault’s substantial interest, the risk of erroneous deprivation, and the a

bi l ity to provide a hearing without compromising a sig nificant g overnment interest, we h o ld that

a state must provide a h earing prior to freez in g a s i gnificant

sum in the inmate’s account. 5 Thus, we c o n c lude that Shinault rece ived insufficient due process as the r e sult o f Oreg on’s actions.

Nor should providing a pre-depri v a t i on hearing be administratively burdensome. Sever a l j u r i s d i c t i o n s h a

v e been able to do so in similar c ircumstances. F or instance, the State of Montana places the a

uthority to collect incarceration costs with the sentencing c ourt, M O N T

. C O D E A N N

. § 7-32-2245, and notice and the opportunity t o r espond is central to determining whether th e i m position of costs during sentencing is lawful. S

ee State v. Johnso n , 3 02 Mont. 265, 2 7 2
, 14 P.3d 480, 485 (2000). The State of California requires a h earing and determination of a n inmate’s ability to pay prior to c harg ing incarceration costs. C A L

. P E N A L C O D E § 1203.1c (providing individuals entitled to representation for underly ing criminal charg e with rig h t to counsel at hearing ). The State of I owa “requires that prison administrators provide [ w] ritten no t i ce of the amount of the deduction

. . . to the inmate, who shall have five day s after receipt of the notice to

5 Ou r h o ld in g is of co u rse lim ited to circu m st a n ces in w h ich th e g o v ern m en t’ s in terest arises f ro m reco u p in g in carceratio n co sts. W e n eed

n o t an d d o n o t decid e h ere w h eth er, or w

h en , a p re- d ep riv atio n h earin g is
req u ired w

h en th e state’ s actio n i s m o tiv ated b y co n cern s oth er th an th ose at stak e w

h en t h e g o v ern m en t i s s eek in g to d ef ray th e co sts of in carceratio n

.S H I N A U L T V

. H A W

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submit in writing any and all objecti o n s to the deduction.” Montanez
, 2014 W L 5155040, at * 8

– 9 ( alterations in orig inal) (citations and intern a l q uotation marks omitted). Ohio prison administrators “must prov i de notice to the inmate of the debt a

nd its inten t t o s e iz e money from the inmate’s account, inform the inmate o f a rig ht to claim ex emptions, and p r o v ide the inmate with an opportunity to assert any

ex e mption or d efense bef o r e a ny money may be withdrawn from the account.” Id.

At a minimum, due p rocess requires that inmates be in f o r m e d of their f

inancial liability (including the basis for the calculation), and have a meaning ful opportunity to contest the assessment before si gn i f icant assets are d e ducted o r froz en. See M

ullane v

. C e n t

. Hanover Bank & Trust Co.
, 339 U.S. 306, 314 (1950). O r e go n ’s May 29, 2009, order satisfied the notice c omponent. The oppo r t unity to object protects ag a inst the possibility of e r r o r in calculating incarceration costs a

n d determining ability to pay

. W e d o not sug g est that ODOC must provide each inmate with a formal, judicial-like h earing prior to freez ing inmat e accounts. Neither do we observe that the admin i s trative hearing that preceded the w ithdrawal of Shinault ’ s fu nds was deficient, apart f rom the proc e s s a fforded prior to freez ing his assets. Rather, p rior to such a freez e, Oreg on must g ive notice a nd provide a meaning ful opportunity to object. O D O C retains discretion, consistent with its constitutional o blig ations, to satisfy this r equirement in a flex ible and cost

- effective

manner.

II. Qualif

ied Im m unity

“Qualified immunity shields f ederal and state officials from money damag es unless a plaintiff p leads facts showingS H I N A U L T V

. H A W

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(1) that the official v iolated a statutory or constitutional rig ht, and ( 2) t h a t t h e rig ht was ‘clearly established’ at the time o f the challeng ed conduct

. ” Ashcroft v. al-Kidd
, 131 S. Ct. 2074, 2080 (2011) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)). I n order to b e cl early established, “[ t] he
contours of the rig ht must be su f f i ciently clear that a reasonable official would understand that what he i s doing violates that ri gh t

. ” Anderson v

. Creighton
, 483 U.S. 635, 640 (1987). “W e do not require a case directly on point, but

ex isting precede n t must have placed the statutory o r constitutional question bey ond debate.” Ashcroft
, 131 S. Ct.
at 2 083. B ecause the M

athews test “boils down to an a d h oc balancing inquiry
, ” p rocedural due process requirements “ can rarely be considered clearly established at least in the absence of closely correspo nding factual and leg a l precedent.” Brewster
, 149 F .3d at 983 (citations and internal q u o t a t i on marks omitted).

As no case decided by the Supreme Court resembles this
case, Shinault directs o ur attention to Quick v

. J ones , 754 F .2d 1521 (9th Cir. 1985), a s the a u t h o r ity placing this question bey ond debate. There, a W ashing ton state prisoner

on furloug h caused damag e to a p a role officer and sheriff’s belong ing s while fleeing

. Quick
, 754 F .2d a t 1 5 2 2

. At a disciplinary hearing
, Quick w as dir ected to pay $66 in restitution. Id. at 1 5 22–23. Quick appealed the order to the prison superintendent who affirmed, and funds were withdrawn from the account an d t ra nsferred to the two officials. Id. We decided in thes e circumstances that a predeprivation hearing was required prior to the “permanent a nd final withdrawal of money . . . .” I d. at 1523.

Numerous material dif

f er ences disting uish Quick

. The deprivation in Quick’s case was final and permanent, whereasS H I N A U L T V

. H A W

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here state officials only froz e Shinault’s account pending the

o u t come of proceeding s. The state in Quick did not hold a hearing assessing liability for the damag es p r ior to withdrawing funds from h is account. I n contrast, ODOC h eld

a hearing assessing liability prior to withdrawing Shinault’s funds. L astly
, Shinaul t ’ s a ccount was restricted pursuant to

a comprehensive scheme to recoup incarceration costs, while Quick’s account was debited to provide restitution

. Given these d ifferences, we are unable to say that Quick is “closely corresponding factual and leg al preced e nt.” Brewster
, 149 F .3d at 983.

I n a d d i t ion, qualified immunity is appropriate because

some courts h ave declined to require a pre-deprivation hearing in a

nalog ous cases, a lbeit involvin g sig nificantly smaller charg es to inmate acco unts, which shows that the rig ht was not clearly established at the time of conduct. The Six th Circuit held that per-diem deductions totaling $20 a nd $110.27 required only post-deprivation pro c e s s

. Sickles v

. Campbell Cnty., Ky.
, 501 F .3d 726, 730–32 (6th Cir. 2007). Similarly
, the Third Circuit found that a $10 per-day charg e , totaling $4,000, did not require pre-deprivation process. Tillman v. Lebanon Cn t y. Corr. Facility
, 221 F .3d 410, 421–22 (3d Cir. 2 000); accord Slade v. Hampton Roads Reg’l J a i l
, 407 F .3d 243, 253–54 (4th Cir. 2005) (no pre

deprivation process needed for $1 per-day deduction). 6

Given the absence o f preceden t establishing a state’s oblig ation to provide a pre-deprivation hearing in these

6 T h e m o st recen t ap pellate co u rt d e c i s i o n o n p o in t req u ired a pred ep riv atio n h earin g , b u

t t h at case w as decid ed lo n g af t er ODOC of

f icials f ro ze Sh in au l t’ s assets. Mo n ta n ez v. S ec’y Pa

. Dep ’t o f Co rr. , 2 0 14 W L 5 1 5 5 0 4 0 , at * 7

– 8 (3 d Cir. A u g . 1 5 , 2 0 14 ).S H I N A U L T V

. H A W

K S 15

circumstances, the rig ht was not clea r l y e s tablished at the time of the c onduct. Quick is disting uishable enoug h from this matter, and several decisions from our sister circuits have held that post-deprivation p rocess suffices, even for final withdrawals of assets. 7

III. Eighth Am endm ent

Shinault contends that the freez e and withdrawal of funds constitutes d eliberate indifference to his medical needs under the Eig hth Amendment because he intended to use the funds
to secure medical treatment foll owing release from incarceration. The district court g r anted defendants’ motion for summary judg ment on the c laim, ruling that there was no Eig hth Amendment viola t i on b ecause the withdrawal was a

r e i m b u r s e ment rather than a punishment, defendants p r o v i d e d adequate medical c a

re, and the re c o r d did not show that Shinault would be unable to access medical care after release. W e affirm.

The E ig hth Amendment’s prohibition on c r u el a nd

un u s ual punishment oblig ates the g overnment to “provide medical c are for those whom it is punishing b y incarceration.” Estel le v

. Gamble
, 4 29 U .S. 97, 103 (1976). “[ D] eliberat e i ndifference to a prisoner’s serious illness o r i n j u r y s tates a cause of action under [ Section] 1983.” Id. a t 105; see also Hutchinson v. U nited States
, 838 F .2d 3 90, 394 (9th Cir. 1988). I n a d dition to showing a serious medical need, a plaintiff must prove that prison o ffi c i a l s were a ware

7 Qu alif ied i m m u n ity do es n o t ap p ly to claim s f o r d eclarato ry or in j u n ctiv e relief

. Hyd rick v. Hu n ter , 6 69 F.3 d 9 3 7
, 9 3 9– 4 0 (9 t h Cir. 2 0 1 2 ). A s S h in au lt d isclaim ed an in j u n ctiv e rem ed y d u rin g o ral arg u m en t, h is d u e p ro cess claim

is d ism i ssed

o n su m m ary j u d g m en t.S H I N A U L T V

. H A W

K S 16

of the condition and deliberately d enied or delay ed care in order to prevail on an Eig hth A mendment claim. See Farmer

v. Brennan
, 511 U

. S

. 8 25, 836–37 (1994). As w ith the procedural due process claim, Shinault was required to prove that the rig ht was clear l y e s tablished at the time of the conduct.

Assuming that Shinault’s diabetes was a sig nificant medical c ondition and that prison officials were aware of the condition, no authority supports t h e n otion that freez ing o r withdrawing funds from an i n m ate account constitutes deliberate denial of care under the Eig hth Amendment. The state is oblig ated to provide diabetes treatment to inmates in custody
, Lolli v

. Cnty. of Orange
, 351 F

. 3d 410, 420 (9th Cir. 2003), and in certain circumstance s t o provide medication covering a “transitional period” following release. W akefield

v. Thompson
, 177 F .3d 1160, 1164 (9th Cir. 1999) ( ig noring instructions o f phy sic i a

n c o n s t i t u t e s i n terference with medical care). The rig ht to medical care has neve r s hielded an inmate’s assets because they could pot e n tially be u sed for medical purposes after release from inca r c e r a tion, a nd we decline to do so here.

No issue of m aterial fact indicates that Shinault has a valid claim under the Eig hth Amendment. Pri s o n officials did n ot dep r i v e S h inault of care during his period o f incarceration, and he received a six ty -day supp l y o f

me d i c a t i o n upon release. T h us, we affirm the district court on the Eig hth Amendment claim. 8

8 W e co u ld also af

f irm o n t h e b as i s o f q u alif

ied im m u n ity b ecau s e d ef en d an t s d id n o t h av e n o tice th at th ey v io l ated a co n stitu tio n al rig h t. A

n u m b er o f co u rts h av e rej ected Eig h t h A m en d m en t ch allen g es to v ario u s f ees ch arg ed to in m ates, alth o u g h n o n e o f th ose d ecisio n s w ere ex actly onS H I N A U L T V

. H A W

K S 17

CONCLUSION

F or these reasons, w e affirm the district court’s g rant o f

s u m mary judg ment o n both claims. W hile we hold th a t a state must provide a p re-deprivation hearing prior to freez ing substantial inmate assets, we ultimately affirm the district
court on the due process c l aim because that rig ht was not clearly established at the time of ODOC’s actions.

AF F IRMED.

p o in t. S ee, e.g

. , Po o le v. Isa a cs , 7 0 3 F.3 d 1 0 2 4
, 10 2 7

– 2 8 (7 th Cir. 20 1 2 ); S h a p ley v. Nev. Bd

. o

f S ta te Priso n Co m m’rs
, 7 6 6 F.2 d 4 0 4
, 40 8 (9 th Cir. 1 9 8 5 ); Ga rd

n er v. W ilso n , 9 5 9 F. Su

p p . 1 2 2 4 , 1 2 2 8 (C.D. Cal. 1 9 9 7 ).