FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LESTER R. SHINAULT,

Plaintiff-Appellant,

v.

DICK HAWKS; TAMI DOHRMAN;

MARTHA MCDANIEL; OREGON

DEPARTMENT OF CORRECTIONS

GENERAL SERVICE DIVISION,

Defendants-Appellees.

No. 13-35290

D.C. No.

3:11-cv-00436-

PK

ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the District of Oregon

Anna J. Brown, District Judge, Presiding

Argued and Submitted

December 8, 2014—Seattle, Washington

Filed January 22, 2015

Amended April 6, 2015

Before: Michael Daly Hawkins, M. Margaret McKeown,

and Richard C. Tallman, Circuit Judges.

Order;

Opinion by Judge Hawkins
2 SHINAULT V. HAWKS

SUMMARY*

Prisoner Civil Rights

The panel affirmed the district court’s summary judgment

in an action brought by an Oregon state prisoner alleging that

state officials violated his rights under the Fourteenth and

Eighth Amendments when the Oregon Department of

Corrections froze more than $60,000 in his inmate trust

account to recover the cost of his incarceration.

Plaintiff received a $107,416.48 settlement from a

medical liability claim against a drug manufacturer whose

products (prescribed while not in custody) caused him to

develop diabetes. Addressing plaintiff’s procedural due

process claim, the panel held that a state must provide a predeprivation hearing before freezing substantial inmate assets. 

The panel nevertheless affirmed the district court’s summary

judgment in favor of defendants on the basis of qualified

immunity because the constitutional obligation was not

clearly established at the time of the conduct.

Plaintiff also asserted that the freeze and withdrawal of

his funds constituted deliberate indifference to his medical

needs under the Eighth Amendment because he intended to

use the funds to secure medical treatment following release

from incarceration. Rejecting the Eighth Amendment claim,

the panel held that prison officials did not deprive plaintiff of

care during his period ofincarceration and a state’s obligation

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
SHINAULT V. HAWKS 3

to provide medical care does not extend to shielding assets in

inmate accounts.

COUNSEL

Daniel H. Bookin and Anna-Rose Mathieson (argued),

O’Melveny & Myers LLP, San Francisco, California, Pro

Bono Counsel for Plaintiff-Appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce,

Solicitor General, Peenesh H. Shah (argued), Assistant

AttorneyGeneral, Salem, Oregon, for Defendants-Appellees.

ORDER

The opinion filed on January 22, 2015, and published at

776 F.3d 1027, is hereby amended as follows:

On page 1032, the following text should be placed in a

new footnote inserted after the words <significant sum in the

inmate’s account.>:

Our holding is of course limited to

circumstances in which the government’s

interest arises from recouping incarceration

costs. We need not and do not decide here

whether, or when, a pre-deprivation hearing is

required when the state’s action is motivated

by concerns other than those at stake when the

government is seeking to defray the costs of

incarceration.
4 SHINAULT V. HAWKS

With this amendment, the petition for panel rehearing is

denied. Judges McKeown and Tallman have voted to deny

the petition for rehearing en banc and Judge Hawkins so

recommends. The full court has been advised of the petition

for rehearing en banc and no judge of the court has requested

a vote on whether to rehear the matter en banc. Fed. R. App.

P. 35.

Appellees’ petition for rehearing and petition for

rehearing en banc are DENIED. No further petitions for

rehearing or rehearing en banc will be entertained.

OPINION

HAWKINS, Circuit Judge:

Lester Shinault (“Shinault”) appeals the adverse grant of

summary judgment on his claim that state officials violated

his rights under the Eighth and Fourteenth Amendmentswhen

the Oregon Department of Corrections (“ODOC”) froze more

than $60,000 in his inmate trust account to recover the cost of

his incarceration. The district court held that Shinault

received sufficient process because the State held a hearing

prior to withdrawing the funds and that he did not suffer an

injury under the Eighth Amendment. We affirm the district

court on the Eighth Amendment claim because a state’s

obligation to provide medical care does not extend to

shielding assets in inmate accounts. We disagree with the

district court’s due process determination because a state

must provide a pre-deprivation hearing before freezing

substantial inmate assets. Yet, we ultimately affirm on the

basis of qualified immunity because the constitutional
SHINAULT V. HAWKS 5

obligation was not clearly established at the time of the

conduct.1

FACTUAL BACKGROUND AND PROCEDURAL

HISTORY

Lester Shinault was incarcerated with ODOC from May

19, 2005, until February 5, 2007, and again from October 23,

2008, until August 14, 2009, for felony convictions. During

the latter term of incarceration, Shinault received a

$107,416.48 settlement from a medical liability claim against

a drug manufacturer whose products (prescribed while not in

custody) caused him to develop diabetes.

Shinault’s counsel in the product liability suit deposited

the settlement proceeds into Shinault’s inmate trust account. 

ODOC establishes trust accounts for each inmate, which are

subject to various regulations governing accrual of interest,

limitations on use and access, and offset for indebtedness. 

OR.ADMIN.R. 291-158-0015 et seq. Oregon law establishes

that inmates are liable for the full cost of their incarceration,

subject to various limitations. OR. REV. STAT. §§ 179.620;

179.640. For instance, officials must take into consideration

the inmate’s ability to pay, id. § 179.620(1)-(2), and “the

inmate’s need for funds for personal support after release.” 

OR.ADMIN.R. 291-203-0040(5). Officials have discretion to

waive collection “based on the best interest of the inmate or

the department.” Id. 291-203-0080.

1 The State contends that Shinault’s claims are barred by sovereign

immunity. While sovereign immunity bars suits against states and their

agencies, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100

(1984), we don’t find Shinault’s pleading error fatal to his claims,

particularly where he has requested the substitution of parties.
6 SHINAULT V. HAWKS

Relying on this authority, ODOC issued an order on May

29, 2009, requiring Shinault to pay $65,353.94, the estimated

cost of his current and previous incarceration. Oregon

calculates the cost of incarceration by multiplying the daily

cost of care and the number of days an inmate is incarcerated. 

The daily cost of care is the quotient of the total cost of

inmate care across the ODOC system divided by the number

of inmates. The order advised Shinault of his right to contest

the order, which he pursued by requesting a case hearing on

June 2, 2009.

On the same day that Shinault requested a case hearing,

ODOC transferred $65,353.94 into a “reserved

miscellaneous” sub-account in Shinault’s name. The record

indicates that, after the transfer, Shinault could no longer

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 month prior to the

hearing. Shinault received ODOC’s exhibits and filings the

morning of the hearing and struggled to represent himself

(“Your Honor, I don’t know what I’m doing here . . . I’m in

left field here.”). He asked for a delay and the opportunity to

hire new counsel, both of which were denied by the

Administrative Law Judge (“ALJ”).2 The ALJ ultimately

2 Shinault earlier filed an unopposed motion to supplement the record on

appeal to include the transcript of an October 23, 2009, administrative

hearing. The transcript was included in the excerpts of record. The

motion is, therefore, denied as moot.
SHINAULT V. HAWKS 7

ordered Shinault to pay $61,352.39, and the funds were

withdrawn about one year later.3

Shinault did not appeal the ALJ order. Instead, he filed

this action, alleging various constitutional harms. Defendants

moved for summary judgment on all claims. A magistrate

judge issued findings and recommended granting summary

judgment on all claims. Over Shinault’s objections, the

district court adopted those recommendations.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. A grant of

summary judgment is reviewed de novo. Lopez v. Smith,

203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). The court,

viewing the facts in the light most favorable to the plaintiff,

must determine whether any genuine issues of material fact

exist. Id.

ANALYSIS

I. Procedural Due Process

The Fourteenth Amendment provides that no State shall

“deprive any person of life, liberty, or property, without due

process of law.” Due process “is a flexible concept that

varies with the particular situation.” Zinermon v. Burch,

494 U.S. 113, 127 (1990). Due process protections extend

3 ODOC reduced the order from $65,353.94 to $61,352.39 because it

withdrew $4,088.96 from the “reserved miscellaneous” account to pay

several garnishments after issuing the initial order. The account had

earned $87.41 in interest during this intervening period.
8 SHINAULT V. HAWKS

only to deprivations of protected interests. See Bd. of Regents

of State Colls. v. Roth, 408 U.S. 564, 569–70 (1972).

An individual’s property is a fundamental example of a

protected interest. See Fuentes v. Shevin, 407 U.S. 67, 86

(1972). More specifically, “[t]here is no question that [an

inmate’s] interest in the funds in his prison account is a

protected property interest.” Quick v. Jones, 754 F.2d 1521,

1523 (9th Cir. 1985). Shinault’s trust account funds are

within the scope of the Fourteenth Amendment.

Once a protected interest is found, we employ the threepart balancing test of Mathews v. Eldridge, 424 U.S. 319

(1976), to determine whether a pre-deprivation hearing is

required and what specific procedures must be employed at

that hearing given the particularities of the deprivation. 

Brewster v. Bd. of Educ., 149 F.3d 971, 983–84 (9th Cir.

1998). The Mathews test balances three factors: (1) the

private interest affected; (2) the risk of erroneous deprivation

through the procedures used, and the value of additional

safeguards; and (3) the government’s interest, including the

burdens of additional procedural requirements. Mathews,

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 necessarily implicate a substantial private

interest under the first Mathews prong. Here, however,

Shinault’s interest was clearly substantial, because ODOC

deprived him of access to a significant amount of his funds. 

See Quick, 754 F.2d at 1522–23 ($66 charge merits predeprivation process); cf. Sickles v. Campbell Cnty., Ky.,

501 F.3d 726, 730 (6th Cir. 2007) (withdrawals of $110 and

$20 do not implicate substantial private interest).
SHINAULT V. HAWKS 9

In terms of the second Mathews factor, two aspects of

Oregon’s regulatory scheme risk erroneous deprivation. The

first—calculating the daily cost of care—involves mere

arithmetic, but the calculations are more complex than flat fee

arrangements found to involve minimal risk of error. See,

e.g., Slade v. Hampton Roads Reg’l Jail, 407 F.3d 243,

253–54 (4th Cir. 2005) (charging inmate $1 per day is a

“ministerial” act); Tillman v. Lebanon Cnty. Corr. Facility,

221 F.3d 410, 413, 422 (3d Cir. 2000) (taking $10 per day

from inmate is a “routine matter[] of accounting.”). In fact,

ODOC admits that it erred slightly by using the incorrect

daily rate for one period of incarceration. In addition, the

State’s obligation to determine an inmate’s ability to pay

based on the inmate’s estate, need for funds for personal

support, and availability of benefits is an individualized

decision that poses a risk of error. OR. ADMIN. R. 291-203-

0040(5).

As to the third Mathews factor, the government’s interest

in conserving taxpayer resources by sharing incarceration

costs is substantial. Sickles, 501 F.3d at 731. Yet, the third

factor is balanced by the need to assure that additional

procedural safeguards are not administratively burdensome. 

Montanez v. Sec’y Pa. Dep’t of Corr., 2014 WL 5155040, at

*8 (3d Cir. Aug. 15, 2014).

The Supreme Court “usually has 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, 127 (1990) (citations omitted). So, “[i]n

situations where the State feasibly can provide a

predeprivation hearing before taking property, it generally

must do so regardless of the adequacy of a postdeprivation
10 SHINAULT V. HAWKS

tort remedy to compensate for the taking.” Id. at 132.4

However, post-deprivation process can suffice “in limited

cases” when prompt action is required, an important

government 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. 230, 240 (1988). 

For instance, temporary suspensions of an indicted bank

officer, id. at 240–41, a horse trainer suspected of doping,

Barry v. Barchi, 443 U.S. 55, 64 (1979), and a police officer

based on a drug-related charge, Gilbert v. Homar, 520 U.S.

924, 932 (1997), did not require pre-deprivation hearings.

The results of the Mathews balancing test point to the

need for a pre-deprivation hearing prior to freezing Shinault’s

funds. Compared to the cases above, the State’s interest does

not require such prompt action that a pre-deprivation hearing

is infeasible. While state officials could temporarily suspend

individuals from their jobs without a hearing in order to

preserve the integrity of those regulated professions and

protect the public, the integrity of Oregon’s prison system

does not diminish if a hearing precedes a freeze of inmate

assets, particularly because the funds in fact remain in the

State’s control. Nor does the financial viability of the

correctional system require immediate recoupment of inmate

costs given their insignificance in relation to ODOC’s overall

budget. In other words, Oregon’s interest in administering

cost-effective and safe prisons is significant, but recouping

incarceration costs does not rise to a level which would

4 The Supreme Court required pre-deprivation hearings prior to

terminating public-sector employment, Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 542 (1985), cutting off utility service, Memphis

Light, Gas & Water Div. v. Craft, 436 U.S. 1, 18 (1978), and suspending

a public-school student, Goss v. Lopez, 419 U.S. 565, 579 (1975).
SHINAULT V. HAWKS 11

obviate the need for a pre-deprivation hearing in advance of

action.

Given Shinault’s substantial interest, the risk of erroneous

deprivation, and the ability to provide a hearing without

compromising a significant government interest, we hold that

a state must provide a hearing prior to freezing a significant

sum in the inmate’s account.5 Thus, we conclude that

Shinault received insufficient due process as the result of

Oregon’s actions.

Nor should providing a pre-deprivation hearing be

administrativelyburdensome. Severaljurisdictions have been

able to do so in similar circumstances. For instance, the State

of Montana places the authority to collect incarceration costs

with the sentencing court, MONT. CODE ANN. § 7-32-2245,

and notice and the opportunity to respond is central to

determining whether the imposition of costs during

sentencing is lawful. See State v. Johnson, 302 Mont. 265,

272, 14 P.3d 480, 485 (2000). The State of California

requires a hearing and determination of an inmate’s ability to

pay prior to charging incarceration costs. CAL. PENALCODE

§ 1203.1c (providing individuals entitled to representation for

underlying criminal charge with right to counsel at hearing). 

The State of Iowa “requires that prison administrators provide

[w]ritten notice of the amount of the deduction . . . to the

inmate, who shall have five days after receipt of the notice to

5 Our holding is of course limited to circumstances in which the

government’s interest arises fromrecouping incarceration costs. We need

not and do not decide here whether, or when, a pre-deprivation hearing is

required when the state’s action is motivated by concerns other than those

at stake when the government is seeking to defray the costs of

incarceration.
12 SHINAULT V. HAWKS

submit in writing any and all objections to the deduction.” 

Montanez, 2014 WL 5155040, at *8–9 (alterations in

original) (citations and internal quotation marks omitted). 

Ohio prison administrators “must provide notice to the inmate

of the debt and its intent to seize money from the inmate’s

account, inform the inmate of a right to claim exemptions,

and provide the inmate with an opportunity to assert any

exemption or defense before any money may be withdrawn

from the account.” Id.

At a minimum, due process requires that inmates be

informed of their financial liability (including the basis for

the calculation), and have a meaningful opportunity to contest

the assessment before significant assets are deducted or

frozen. See Mullane v. Cent. Hanover Bank & Trust Co.,

339 U.S. 306, 314 (1950). Oregon’s May 29, 2009, order

satisfied the notice component. The opportunity to object

protects against the possibility of error in calculating

incarceration costs and determining ability to pay. We do not

suggest that ODOC must provide each inmate with a formal,

judicial-like hearing prior to freezing inmate accounts. 

Neither do we observe that the administrative hearing that

preceded the withdrawal of Shinault’s funds was deficient,

apart from the process afforded prior to freezing his assets. 

Rather, prior to such a freeze, Oregon must give notice and

provide a meaningful opportunity to object. ODOC retains

discretion, consistent with its constitutional obligations, to

satisfy this requirement in a flexible and cost-effective

manner.

II. Qualified Immunity

“Qualified immunity shields federal and state officials

from money damages unless a plaintiff pleads facts showing
SHINAULT V. HAWKS 13

(1) that the official violated a statutory or constitutional right,

and (2) that the right was ‘clearly established’ at the time of

the challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct.

2074, 2080 (2011) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). In order to be clearly established, “[t]he

contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right.” Anderson v. Creighton, 483 U.S. 635,

640 (1987). “We do not require a case directly on point, but

existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft, 131 S. Ct.

at 2083. Because the Mathews test “boils down to an ad hoc

balancing inquiry,” procedural due process requirements “can

rarely be considered clearly established at least in the absence

of closely corresponding factual and legal precedent.” 

Brewster, 149 F.3d at 983 (citations and internal quotation

marks omitted).

As no case decided by the Supreme Court resembles this

case, Shinault directs our attention to Quick v. Jones,

754 F.2d 1521 (9th Cir. 1985), as the authority placing this

question beyond debate. There, a Washington state prisoner

on furlough caused damage to a parole officer and sheriff’s

belongings while fleeing. Quick, 754 F.2d at 1522. At a

disciplinary hearing, Quick was directed to pay $66 in

restitution. Id. at 1522–23. Quick appealed the order to the

prison superintendent who affirmed, and funds were

withdrawn from the account and transferred to the two

officials. Id. We decided in these circumstances that a predeprivation hearing was required prior to the “permanent and

final withdrawal of money . . . .” Id. at 1523.

Numerous material differences distinguish Quick. The

deprivation in Quick’s case was final and permanent, whereas
14 SHINAULT V. HAWKS

here state officials only froze Shinault’s account pending the

outcome of proceedings. The state in Quick did not hold a

hearing assessing liability for the damages prior to

withdrawing funds from his account. In contrast, ODOC held

a hearing assessing liability prior to withdrawing Shinault’s

funds. Lastly, Shinault’s account was restricted pursuant to

a comprehensive scheme to recoup incarceration costs, while

Quick’s account was debited to provide restitution. Given

these differences, we are unable to say that Quick is “closely

corresponding factual and legal precedent.” Brewster,

149 F.3d at 983.

In addition, qualified immunity is appropriate because

some courts have declined to require a pre-deprivation

hearing in analogous cases, albeit involving significantly

smaller charges to inmate accounts, which shows that the

right was not clearly established at the time of conduct. The

Sixth Circuit held that per-diem deductions totaling $20 and

$110.27 required only post-deprivation process. Sickles v.

Campbell Cnty., Ky., 501 F.3d 726, 730–32 (6th Cir. 2007). 

Similarly, the Third Circuit found that a $10 per-day charge,

totaling $4,000, did not require pre-deprivation process. 

Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410,

421–22 (3d Cir. 2000); accord Slade v. Hampton Roads Reg’l

Jail, 407 F.3d 243, 253–54 (4th Cir. 2005) (no predeprivation process needed for $1 per-day deduction).6

Given the absence of precedent establishing a state’s

obligation to provide a pre-deprivation hearing in these

6 The most recent appellate court decision on point required a predeprivation hearing, but that case was decided long after ODOC officials

froze Shinault’s assets. Montanez v. Sec’y Pa. Dep’t of Corr., 2014 WL

5155040, at *7–8 (3d Cir. Aug. 15, 2014).
SHINAULT V. HAWKS 15

circumstances, the right was not clearly established at the

time of the conduct. Quick is distinguishable enough from

this matter, and several decisions from our sister circuits have

held that post-deprivation process suffices, even for final

withdrawals of assets.7

III. Eighth Amendment

Shinault contends that the freeze and withdrawal of funds

constitutes deliberate indifference to his medical needs under

the Eighth Amendment because he intended to use the funds

to secure medical treatment following release from

incarceration. The district court granted defendants’ motion

for summary judgment on the claim, ruling that there was no

Eighth Amendment violation because the withdrawal was a

reimbursement rather than a punishment, defendants provided

adequate medical care, and the record did not show that

Shinault would be unable to access medical care after release. 

We affirm.

The Eighth Amendment’s prohibition on cruel and

unusual punishment obligates the government to “provide

medical care for those whom it is punishing by

incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). 

“[D]eliberate indifference to a prisoner’s serious illness or

injury states a cause of action under [Section] 1983.” Id. at

105; see also Hutchinson v. United States, 838 F.2d 390, 394

(9th Cir. 1988). In addition to showing a serious medical

need, a plaintiff must prove that prison officials were aware

7 Qualified immunity does not apply to claims for declaratory or

injunctive relief. Hydrick v. Hunter, 669 F.3d 937, 939–40 (9th Cir.

2012). As Shinault disclaimed an injunctive remedy during oral argument,

his due process claim is dismissed on summary judgment.
16 SHINAULT V. HAWKS

of the condition and deliberately denied or delayed care in

order to prevail on an Eighth Amendment claim. See Farmer

v. Brennan, 511 U.S. 825, 836–37 (1994). As with the

procedural due process claim, Shinault was required to prove

that the right was clearly established at the time of the

conduct.

Assuming that Shinault’s diabetes was a significant

medical condition and that prison officials were aware of the

condition, no authority supports the notion that freezing or

withdrawing funds from an inmate account constitutes

deliberate denial of care under the Eighth Amendment. The

state is obligated to provide diabetes treatment to inmates in

custody, Lolli v. Cnty. of Orange, 351 F.3d 410, 420 (9th Cir.

2003), and in certain circumstances to provide medication

covering a “transitional period” following release. Wakefield

v. Thompson, 177 F.3d 1160, 1164 (9th Cir. 1999) (ignoring

instructions of physician constitutesinterference with medical

care). The right to medical care has never shielded an

inmate’s assets because they could potentially be used for

medical purposes after release from incarceration, and we

decline to do so here.

No issue of material fact indicates that Shinault has a

valid claim under the Eighth Amendment. Prison officials

did not deprive Shinault of care during his period of

incarceration, and he received a sixty-day supply of

medication upon release. Thus, we affirm the district court

on the Eighth Amendment claim.8

8 We could also affirm on the basis of qualified immunity because

defendants did not have notice that they violated a constitutional right. A

number of courts have rejected Eighth Amendment challenges to various

fees charged to inmates, although none of those decisions were exactly on
SHINAULT V. HAWKS 17

CONCLUSION

For these reasons, we affirm the district court’s grant of

summary judgment on both claims. While we hold that a

state must provide a pre-deprivation hearing prior to freezing

substantial inmate assets, we ultimately affirm the district

court on the due process claim because that right was not

clearly established at the time of ODOC’s actions.

AFFIRMED.

point. See, e.g., Poole v. Isaacs, 703 F.3d 1024, 1027–28 (7th Cir. 2012);

Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 408 (9th Cir.

1985); Gardner v. Wilson, 959 F. Supp. 1224, 1228 (C.D. Cal. 1997).