2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-10-2000

Tillman v. Lebanon Co. Corr. Facility

Precedential or Non-Precedential:

Docket 99-3656

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Recommended Citation

"Tillman v. Lebanon Co. Corr. Facility" (2000). 2000 Decisions. Paper 95.

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Filed May 10, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 99-3656 

LEONARD G. TILLMAN, 

 Appellant 

v. 

LEBANON COUNTY CORRECTIONAL FACILITY; 

ROBERT L. RAIGER, Warden 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

(D.C. Civ. No. 98-cv-01188) 

District Judge: Honorable William W. Caldwell 

Argued January 31, 2000 

Before: MANSMANN, NYGAARD, and RENDELL, 

Circuit Judges. 

(Filed: May 10, 2000) 

 Donald A. Bailey, Esquire (Argued) 

 3540 N. Progress Avenue 

 Suite 209 

 Harrisburg, PA 17110 

 Counsel for Appellant 

 Todd B. Narvol, Esquire (Argued) 

 Thomas, Thomas & Hafer, LLP 

 305 N. Front Street 

 P.O. Box 999 

 Harrisburg, PA 17108-0999 

 Counsel for Appellees 
OPINION OF THE COURT 

MANSMANN, Circuit Judge. 

Leonard G. Tillman is a former prisoner who was 

assessed a fee of $10.00 per day for housing costs 

stemming from two periods of incarceration in a county 

facility for state parole violations. When Tillman was 

confined for the second term, officials confiscated half of 

the funds in his wallet and half of all funds sent on his 

behalf, in order to pay for the assessments. Tillman 

ultimately accumulated a debt exceeding $4,000.00, for 

which his account was turned over to a collection agency 

after his release from prison. 

In a pro se complaint filed against the prison and its 

warden, Tillman alleged that the levying and collection of 

these sums violated 42 U.S.C. S 1983. The defendants 

moved for dismissal, or in the alternative, for summary 

judgment, but the Magistrate Judge recommended denial of 

the motion on the basis of an analysis of the Eighth and 

Fourteenth Amendments. After the defendants filed 

supplemental affidavits, the District Court granted

summary judgment and dismissed the complaint. We will 

affirm. 

I. Facts 

The underlying facts are, as Tillman concedes, 

"essentially undisputed." After committing unspecified 

parole violations, Tillman was incarcerated in the Lebanon 

County Correctional Facility in Pennsylvania between 

January 30, 1997 and August 21, 1997. Parole was again 

granted, but similar violations led to his recommitment to 

the same facility on October 24, 1997. 

Upon recommitment, prison authorities confiscated half 

of the money in Tillman's wallet and subsequently took half 

of all funds sent on his behalf. These actions were taken 

pursuant to the facility's Cost Recovery Program. Under 

this program, prisoners are assessed a daily charge of 

$10.00 towards their housing expenses. Any money 

 2 
generated through the program goes into the county's 

general fund, which pays the facility's operating costs. 

Significantly, the availability of prison services is not 

contingent upon keeping a clean account. Failure to pay 

does not result in the denial of room, board, clothing, or 

other services. Neither can it result in extended prison time 

or reincarceration. 

Instead, when a prisoner lacks sufficient funds to pay the 

assessments, a negative account balance is created.

Authorities may then take half of any funds, from any 

source, sent to a prisoner in order to satisfy the negative 

balance. Any remainder is credited to the prisoner's inmate 

account for his or her personal use. 

If there is still an outstanding negative balance upon a 

prisoner's release from jail, any funds remaining in his or 

her inmate account are put towards the debt. If any debt 

still remains unpaid upon release, the ex-prisoner remains 

responsible for the debt as a civil liability. The prison 

attempts to work out a payment plan, but if the debt 

remains unpaid after release, the account may be turned 

over to a collection agency. Warden Robert L. Raiger notes 

in an affidavit, however, that an account will not be turned 

over for collection if the ex-prisoner maintains a minimal 

payment such as $5.00 per week. The outstanding balance 

is also kept on the prison's records, so if the ex-prisoner is 

later reincarcerated, the prior debt remains in full force 

while new debt begins to accumulate. 

Because Tillman had not paid off the assessments from 

his previous term of incarceration, he had an outstanding 

balance upon recommitment. Consequently, as noted, 

authorities confiscated half the money in his possession 

and took half of all funds sent on his behalf to satisfy the 

debt. The confiscated funds still did not satisfy the 

assessments, however, leaving the plaintiff with a debt of 

over $4,000.00 after his final discharge in July of 1998. His 

account was ultimately turned over to a collection agency. 

Not all prisoners fall within the Cost Recovery Program. 

"Trusty" inmates, who perform work assignments that are 

essential to the day-to-day operation of the prison, are 

excused from the program. Also excused are prisoners 

 3 
participating in the Work Release Program because they are 

already required to pay a minimum of $70.00 per week 

towards their room and board. 

Authorities mistakenly failed to assess the fees against 

one inmate, Anthony Ashford, who had previously been 

exempt as a work release prisoner. After Ashford was 

removed from the Work Release Program, authorities 

neglected to begin charges under the Cost Recovery 

Program. Upon receiving notice via the plaintiff 's

complaint, however, they back-charged Ashford's account. 

The Cost Recovery Program had been put into effect prior 

to both terms of the plaintiff 's parole violation 

incarceration. It was adopted by the Lebanon County

Prison Board on June 19, 1996, and effective July 1 of that 

year. At that time, a memorandum regarding the program 

and a copy of the program itself were posted throughout the 

prison. When Tillman was incarcerated in January of 1997, 

these notices were still posted in all cell blocks, including 

the one to which he had access. 

At that time, Tillman was also given an inmate handbook 

detailing the prison's grievance program, which allowed 

prisoners to "state any grievance concerning any matter 

you feel is unjust . . . ." In June of 1997, during the 

plaintiff 's initial term of parole violation incarceration, the 

handbook was updated to include a description of the Cost 

Recovery Program, as well as an expanded grievance 

program that allowed for direct appeal to the warden. The 

plaintiff was given a copy of the updated handbook, and 

upon recommitment in October of 1997, was again provided 

with a copy. 

Although prisoners were assessed $10.00 per day 

through the Cost Recovery Program, the actual cost of the 

plaintiff 's room and board amounted to $32.00 per day. 

Incarcerated in a county facility, however, the plaintiff here 

was a state prisoner. Although the plaintiff 's pro se 

complaint alleged that the state reimbursed the county 

prison for his costs of incarceration, an affidavit filed by 

Lebanon County Commissioner William G. Carpenter states 

that no such repayment is given to the county facility for 

prisoners who are committed for state parole violations. 

 4 
While still incarcerated,1 the plaintiff filed a pro se 

complaint in the United States District Court for the Middle 

District of Pennsylvania on July 22, 1998. He named as 

defendants Warden Raiger and the Lebanon County 

Correctional Facility. In the complaint, the plaintiff charged 

violations of 42 U.S.C. S 1983 arising from the daily 

assessments, which were imposed despite the alleged fact 

that the "[s]tate pays county" for his expenses. He further 

claimed that the prison took half the money in his wallet 

and half of the money orders "sent in to help me live 

better." He complained that "some" inmates were not

charged and that prisoner Anthony Ashford was neither 

charged nor had any money taken from him. Tillman also 

made cursory references to assessments for medical 

treatment and to "false incarceration." 

After the plaintiff was granted permission to proceed in 

forma pauperis, the defendants moved for dismissal under 

Fed. R. Civ. P. 12(b)(6), or in the alternative, for summary 

judgment under Rule 56(c). Counsel subsequently entered 

an appearance on the plaintiff 's behalf andfiled a

response. 

A Magistrate Judge treated the defendants' motion as one 

for summary judgment and in a memorandum opinionfiled 

April 9, 1999, recommended that the motion be denied. 

Although Tillman did not specify any particular legal theory 

or authority in his response, the Magistrate Judge engaged 

in a detailed analysis of the Eighth and Fourteenth

Amendments. First, held the Magistrate Judge, although 

prisoners could avoid medical fees by declining to seek 

treatment, they could not avoid residing in an institution. 

That fact and the amount of debt created a triable question 

of fact regarding cruel and unusual punishment. Second, it 

could not be shown as a matter of law that the fees were 

not excessive fines in violation of the Eighth Amendment. 

Third, the defendants failed to demonstrate what due 

process, if any, was provided to the plaintiff. Finally, the 

Court held that it lacked sufficient information to conclude 

that there was no material question of fact regarding any 

equal protection claim. 

_________________________________________________________________ 

1. The plaintiff was subsequently released on July 25, 1998 because of 

the expiration of the maximum underlying sentence. 

 5 
The defendants objected to the Magistrate Judge's report 

and filed supplemental affidavits from Warden Raiger and 

Commissioner Carpenter. They detailed the notice given to 

prisoners, the availability of grievance procedures, and 

asserted that the prison was not reimbursed by the state 

for maintenance expenses. The defendants provided copies 

of relevant sections from the superceded and updated 

prisoner handbooks. They also stated that the Cost 

Recovery Program was not intended to punish, but rather 

to rehabilitate by teaching inmates financial responsibility 

by sharing in the costs of their food, housing, clothes, and 

protection. 

The District Court granted summary judgment to the 

defendants and dismissed the plaintiff 's complaint in an 

opinion filed on August 2, 1999. Due in part to the

additional evidence, the District Court took a very different 

approach to the case. First, as to the claim of cruel and 

unusual punishment, the Court found dispositive our

opinion in Reynolds v. Wagner, 128 F.3d 166 (3d Cir. 

1997), where we held that charging prisoners fees for 

medical treatment was not prohibited by the Constitution, 

so long as they were provided with care even when they 

could not afford to pay the fees. 

As in Reynolds, held the District Court, Tillman was 

never denied any basic human need. That a prisoner might 

leave jail with a debt was irrelevant. Disagreeing with the 

Magistrate Judge, the District Court also found it legally 

immaterial that a prisoner could forgo medicine but could 

not decline housing services. 

Second, the Court rejected the "excessive fines" 

argument. Although the District Court doubted that the 

fees amounted to a "fine," it concluded that even if they 

were fines, they were not excessive because the costs of 

incarceration by definition cannot be disproportionate to 

the offense. Third, the due process claim was rejected 

because the notice given and postdeprivation remedy

available through the grievance procedure were 

constitutionally adequate. Finally, the Court held that equal 

protection was not violated because trusty and work release 

inmates were taught financial responsibility, respectively, 

by being provided with labor opportunities and by being 

 6 
required to make payments of at least $70.00 per week. The 

District Court therefore dismissed the case in its entirety. 

Tillman timely appealed. 

The District Court properly exercised jurisdiction under 

28 U.S.C. SS 1331, 1343(a)(3). Our jurisdiction is premised 

on 28 U.S.C. S 1291. We exercise plenary review, accepting 

the non-movant's allegations as true, and drawing 

inferences in the light most favorable to him. Meritcare Inc. 

v. St. Paul Mercury Ins. Co., 166 F.3d 214, 223 (3d Cir. 

1999). The grant of summary judgment must be affirmed if 

"there is no genuine issue as to any material fact and . . . 

the moving party is entitled to a judgment as a matter of 

law." Fed. R. Civ. P. 56(c). 

II. Discussion 

We initially note that a number of states authorize

charges against a prisoner's wages or inmate account.2 

Courts have consistently found that there is no 

constitutional impediment to deducting the cost of room 

and board from a prisoner's wages.3 In one case similar to 

the dispute before us, a state supreme court upheld daily 

_________________________________________________________________ 

2. Some statutes allow for deductions from a prisoner's wages. See, e.g., 

Ariz. Rev. Stat. Ann. S 41-1622, stat. note; Iowa Code Ann. S 904.701(2); 

Minn. Stat. Ann. S 243.23(2); Mo. Ann. Stat.S 217.435(2); Neb. Rev. Stat. 

Ann. S 83-184(b)(3). Other statutes provide for general authority to 

recover the cost of incarceration. See, e.g., Ark. Code Ann. S 12-29-501 

et seq.; Fla. Stat. Ann. S 960.293(2); Iowa Code Ann. S 356.7(1); Mich. 

Comp. Laws Ann. S 800.404(8); Minn. Stat. Ann.S 243.23(3). 

3. See, e.g., Christiansen v. Clarke, 147 F.3d 655, 657 (8th Cir. 1998); 

Mastrian v. Schoen, 725 F.2d 1164, 1166 (8th Cir. 1984); Iowa v. Love, 

589 N.W.2d 49, 52 (Iowa 1998); Cumbey v. Oklahoma, 699 P.2d 1094, 

1097 (Okla. 1985). Other courts have decided non-constitutional 

disputes arising under such statutes without noting any constitutional 

impediment to the statutes' application. See, e.g., Ford v. Arizona, 979 

P.2d 10, 11, 13 (Ariz. Ct. App. 1999); Iowa v. Jackson, 601 N.W.2d 354, 

356-57 (Iowa 1999); State Treasurer v. Gardner , 583 N.W.2d 687, 690 

(Mich. 1998); cf. Auge v. New Jersey Dep't of Corrections, ___ A.2d ___, 

No. A-3472-98T1, 2000 WL 17309, *6 (N.J. Super. Ct. App. Div. Jan. 3, 

2000) (ten percent surcharge on prisoner purchases would be acceptable 

on alternative ground of defraying "substantial costs" of food, clothing, 

medical care, and other necessities). 

 7 
assessments of $50.00 that became, in effect, civil

judgments against the prisoners. Ilkanic v. City of Fort 

Lauderdale, 705 So. 2d 1371, 1372-73 (Fla. 1998). Federal 

law acknowledges that a prisoner's wages might be subject 

to deductions for room and board. 18 U.S.C. S 1761(c)(2)(B). 

In addition, we have noted in dictum that "sparing the 

taxpayers the cost of imprisonment would likely be a 

constitutionally permissible governmental purpose." United 

States v. Spiropoulos, 976 F.2d 155, 168 (3d Cir. 1992). 

In reviewing prison regulations, we ask whether the

regulation is reasonably related to a legitimate penological 

interest. Turner v. Safley, 482 U.S. 78, 89 (1987).4 We share 

the Magistrate Judge's skepticism over whether the Turner 

standard is applicable to the Cost Recovery Program, which 

by its own title might be more properly understood as a 

transfer of funds than a way to regulate prison behavior. 

We need not determine whether Turner is controlling

because in either case, no constitutional violation has 

occurred. 

The complaint charged a violation of 42 U.S.C. S 1983 

from the alleged "swindling [of] state prisoner[s]" under the 

Cost Recovery Program.5 The parties now focus on the 

_________________________________________________________________ 

4. Under Turner, we look to: 

 (1) the rational relationship between the regulati on and the 

 governmental interest put forward to justify it; 

 (2) the existence of alternative means to exercise the asserted 

right; 

 (3) the impact on prison resources of accommodatin g the asserted 

 right; and 

 (4) the existence of "ready alternatives" to accommodate the 

 asserted right at "de minimis" cost to valid penological interests 

Reynolds v. Wagner, 128 F.3d 166, 172 (3d Cir. 1997). 

5. The pro se complaint further alleges that the plaintiff was subjected 

to 

false incarceration and that he was charged fees to see a doctor. The 

plaintiff notes that he has a separate pending action regarding any claim 

that he was held prisoner beyond his legal sentence. That claim is 

therefore not before us. 

On appeal, the plaintiff -- apparently in the context of discussing the 

room and board fees -- makes a number of somewhat jumbled factual 
 8 
Cruel and Unusual Punishments and Excessive Fines 

Clauses of the Eighth Amendment, and the Due Process 

and Equal Protection Clauses of the Fourteenth 

Amendment. We will address these provisions in turn. 6 

A. Eighth Amendment 

1. Cruel and Unusual Punishments 

The Cruel and Unusual Punishments Clause of the 

Eighth Amendment7 proscribes"punishments which are 

incompatible with the evolving standards of decency that 

mark the progress of a maturing society." Estelle v. Gamble, 

429 U.S. 97, 102 (1976) (internal quotes omitted). 

Prohibited are punishments that "involve the unnecessary 

and wanton infliction of pain, or are grossly 

_________________________________________________________________ 

allegations about medical care in the argument portion of his brief. He 

admits that no such facts were put before the District Court due to the 

"flaccidity" of counsel's brief. Opening Br. at 9. Further, counsel does 

not 

assert that these facts are specific to the plaintiff 's situation, 

instead 

appearing to relate to general matters that "[c]ounsel is told." Id. 

The defendants properly complain that we should not consider these 

facts, which are of dubious relevance to this appeal in any case. 

Although we normally hold pro se complaints to a "less stringent" 

standard than formal pleadings drafted by lawyers, Micklus v. Carlson, 

632 F.2d 227, 236 (3d Cir. 1980), the plaintiff here has been represented 

by counsel since the defendants filed their dispositive motions. The 

plaintiff has not filed any affidavits, has not put forth cognizable 

argument, and in this context, does not cite to relevant authority. The 

plaintiff 's "passing reference in a brief will not suffice to bring that 

issue 

before this court." Simmons v. City of Philadelphia, 947 F.2d 1042, 1066 

(3d Cir. 1991). 

6. Although the pro se complaint did not identify any particular theory of 

recovery, the Magistrate Judge gave it a generous reading and focused 

his analysis on the Eighth and Fourteenth Amendments. The plaintiff, 

through counsel, now points to those provisions in his statement of the 

issues presented for review. Although we address those issues, we 

decline to consider whether any other legal theory might provide for 

recovery. 

7. The Eighth Amendment states in full: "Excessive bail shall not be 

required, nor excessive fines imposed, nor cruel and unusual 

punishments inflicted." 
 9 
disproportionate to the severity of the crime." Rhodes v. 

Chapman, 452 U.S. 337, 346 (1981) (citations and internal 

quotes omitted). 

Prison conditions may amount to cruel and unusual 

punishment if they cause "unquestioned and serious 

deprivations of basic human needs . . . . [that] deprive 

inmates of the minimal civilized measure of life's 

necessities." Id. at 347. Accordingly, when the government 

takes a person into custody against his or her will, it 

assumes responsibility for satisfying basic human needs 

such as food, clothing, shelter, medical care, and 

reasonable safety. DeShaney v. Winnebago Co. Dep't of 

Social Svcs., 489 U.S. 189, 199-200 (1989). 

To demonstrate a deprivation of his basic human needs, 

a plaintiff must show a sufficiently serious objective 

deprivation, and that a prison official subjectively acted 

with a sufficiently culpable state of mind, i.e., deliberate 

indifference. Nami v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996) 

(citing Wilson v. Seiter, 501 U.S. 294 (1991)). 

In City of Revere v. Massachusetts General Hospital, 463 

U.S. 239 (1983), a hospital sued a city for the cost of 

treating a person shot by a police officer. The Court held 

that although the city was responsible for ensuring that 

medical care was provided, the Constitution did not dictate 

the allocation of costs between the city and the hospital. Id. 

at 245. In so holding, the Court noted that "[n]othing we 

say here affects any right a hospital or governmental entity 

may have to recover from a detainee the cost of the medical 

services provided to him." Id. at 245 n.7. The Court thus 

hinted that so long as treatment was provided, the cost of 

the services might be recovered from the detainee who 

received the benefit of the medical treatment. 

We made a similar assumption in Monmouth County 

Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326 

(3d Cir. 1987), where female prisoners were required to 

obtain their own financing to obtain elective abortions. 

Looking to the deliberate indifference standard, we held 

that regardless of an inmate's inability to pay, the 

government was obliged to provide medical services for 

those inmates in its custody. Id. at 350. In so holding, 

 10 
however, we held that the government's additional 

obligation to pay for these services was contingent upon a 

lack of "alternative methods of funding." Id. at 351. We 

thus assumed that where an inmate could secure her own 

funding, it would not be unreasonable to make her pay her 

way. 

These cases demonstrate that both the Supreme Court

and our Court anticipated cases where the state would be 

responsible for ensuring the provision of care, but might 

seek reimbursement from the party receiving the benefit of 

the care. We squarely faced that situation in Reynolds v. 

Wagner, 128 F.3d 166 (3d Cir. 1997), where prisoners were 

required to pay fees in order to obtain medical treatment. 

The program's purpose was to instill financial responsibility 

and to discourage abuse of sick call. Where a nurse or 

physician determined that sick call was warranted, 

however, the fee would be waived. Further, certain services, 

such as emergency care, psychiatric services, and other 

treatments were exempt from the fee requirement. 

The facts of that case are strikingly similar to the appeal 

presently before us. In Reynolds, no inmate was refused 

treatment because of a lack of funds. Instead, the 

prisoner's account was debited, and if the available funds 

were insufficient, a negative balance would be created. Half 

of all incoming funds could be used to satisfy the negative 

balance. Upon departure from the facility, the unpaid debt 

could be turned over to a collection agency. If the inmate 

was recommitted, the debt remained in full force. 

In that case, we rejected the argument that imposing a 

fee was per se unconstitutional. The plaintiffs were not 

denied medical care; further, "[i]f a prisoner is able to pay 

for medical care, requiring such payment is not deliberate 

indifference to serious medical needs." Id. at 174 (internal 

quotes eliminated). In the outside world, the plaintiffs 

would have to pay for medical care. Id. Further, the 

proffered purposes -- teaching fiscal responsibility and 

deterring sick-call abuse -- were obviously reasonably 

related to legitimate penological interests. Id. at 175. 

In light of the caselaw, we conclude that Tillman has not 

shown that he has been subjected to cruel and unusual 

 11 
punishment. Undisputed evidence shows that the Cost

Recovery Program is intended to teach fiscal responsibility 

to inmates. The plaintiff, who has since been released, is 

now expected by society to pay his own room and board. 

Teaching him such a skill while in prison amply satisfies 

Turner's requirement that the program be reasonably

related to a legitimate penological interest. Turner, 482 U.S. 

at 89; James v. Quinlan, 866 F.2d 627, 630 (3d Cir. 1989). 

Regardless of Turner's applicability, we reach the same 

conclusion. Tillman's sentence was not extended, nor was 

he reincarcerated for failure to satisfy his debt. More 

importantly, he cannot show that basic human needs were 

left unsatisfied. He was never denied room, food, or other 

necessities, regardless of his failure to pay the fees. See 

Rhodes, 452 U.S. at 348 (double celling did not deprive 

prisoners of food, care, or sanitation, increase violence or 

create other intolerable conditions). This is simply not a 

case like Lanzaro, where necessary services were denied 

because a prisoner lacked the funds to pay. 

We note that Reynolds also considered and rejected an 

"as implemented" challenge to the disputed medical fees. 

We concluded there that such a challenge must fail 

because, inter alia, the "inmates have not pointed out 

evidence showing that they need this money for any vital 

expenses." Reynolds, 128 F.3d at 177. The plaintiff 's 

argument here suffers from the same shortcoming. He

complains in the abstract that prisoners need funds to pay 

for "essentials like toiletries, stamps, extra blankets[,] etc." 

He does not, however, identify how the program caused him 

to be denied his own "basic human needs." Cf. City of 

Revere, 463 U.S. at 245 (so long as the necessary services 

are provided, "the Constitution does not dictate" the 

allocation of costs). 

Along these lines, we disagree with the Magistrate Judge 

that Reynolds is distinguishable because a prisoner might 

choose to forgo medical care, but cannot refuse to reside in 

an institution. The District Court correctly concluded that 

this distinction is without legal import. The fundamental 

question before us is whether basic human needs were 

denied to the plaintiff because of the defendants' deliberate 

indifference. In both Reynolds and the present case, the 

 12 
defendants did not directly deny serious necessities to the 

prisoner plaintiffs; and in neither case did the plaintiffs 

present evidence to show that, due to the defendants' 

deliberate indifference, they were faced with a Hobson's 

choice between paying fees and purchasing necessities. 

Reynolds, 128 F.3d at 178. 

We also reject the plaintiff 's complaint that he is now 

burdened with post-incarceration debt. A similar argument 

was presented in Reynolds, where we noted that "[t]here is, 

of course, no general constitutional right to [be] free" of "a 

personal expense that [the plaintiff] can meet and would be 

required to meet in the outside world." Id. at 173-74. If 

Tillman truly cannot meet his financial obligations, then his 

concerns would be more appropriately addressed in a

federal bankruptcy court. That he is unhappy to be saddled 

with debt is understandable, but in the present 

circumstances, does not implicate the Cruel and Unusual 

Punishments Clause.8 

2. Excessive Fines 

By its plain language, the Excessive Fines Clause of the 

Eighth Amendment is violated only if the disputed fees are 

both "fines" and "excessive." See United States v. 

Bajakajian, 118 S. Ct. 2028, 2033, 2036 (1998). 9 We 

_________________________________________________________________ 

8. The Magistrate Judge was concerned that the amount of debt 

accumulated raised a factual dispute as to whether a cruel and unusual 

punishment was shown. The only pertinent question in the present 

context, however, is whether the plaintiff 's basic human needs were met. 

Although a potentially insurmountable debt might implicate the Cruel 

and Unusual Punishments Clause in theory, we agree with the District 

Court that under these circumstances, the question of whether a debt is 

"grossly disproportionate to the severity of the crime," Estelle, 429 U.S. 

at 103 n.7, is a matter more appropriately considered within the 

auspices of the Excessive Fines Clause, as discussed in the next 

subsection. 

9. The Excessive Fines Clause of the Eighth Amendment, once virtually 

ignored, has been "rescued from obscurity" in recent years. Department 

of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 803 n.2 (1994) 

(Scalia, J., dissenting). The text of the Eighth Amendment was directly 

based on Art. I, S 9 of the Virginia Declaration of Rights, which in turn 

 13 
conclude that the Cost Recovery Program does not amount 

to an excessive fine. 

The term "fine" refers to punishment for a criminal

offense. Browning-Ferris Industries of Vt., Inc. v. Kelco 

Disposal, Inc., 492 U.S. 257, 265 (1989). The fees here, 

however, do not appear to fit that mold. A prisoner's term 

of incarceration cannot be extended, nor can he be 

reincarcerated, for failure to pay a negative balance. The 

daily fees do not vary with the gravity of the offense and 

can neither be increased nor waived. Rather than being 

used to punish, the undisputed evidence shows that the 

fees are designed to teach financial responsibility. More 

fundamentally, the fees can hardly be called fines when 

they merely represent partial reimbursement of the 

prisoner's daily cost of maintenance, something he or she 

would be expected to pay on the outside.10 

The District Court passed on the "fines" issue because of 

an apparent nagging concern over whether the payments 

are "in part, punitive." If the assessments and confiscations 

under the Cost Recovery Program "can only be explained as 

serving in part to punish," they are "punishment" for 

purposes of the Excessive Fines Clause, even if they may 

_________________________________________________________________ 

was taken verbatim from the English Bill of Rights. Browning-Ferris 

Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 266 (1989) 

(quoting Solem v. Helm, 463 U.S. 277, 285 n.10 (1983)). The Eighth 

Amendment received scant debate in the First Congress, and the 

Excessive Fines Clause received none. Id. at 294 (O'Connor, J., 

concurring in part and dissenting in part). This is unsurprising because 

at least eight of the original States had a provision similar to the 

Excessive Fines Clause. Id. at 264 & n.5 (op. of the Court). 

10. In his pro se complaint, Tillman alleges that the county prison is 

reimbursed by the state for his costs of room and board, thus suggesting 

that the prison profited from the fees that he was charged. The 

defendants subsequently asserted in an affidavit that the county prison 

is not reimbursed for a state prisoner such as the plaintiff, who was 

reincarcerated for parole violations. The plaintiff has not submitted an 

affidavit or other evidentiary material to dispute the defendants' 

affidavit 

to the contrary. In this situation, an adverse party may not rest upon 

mere allegations in his pleadings, and any inconsistency does not give 

rise to a disputed question of material fact. Fed. R. Civ. P. 56(e). 

 14 
also be understood to serve remedial purposes. Austin v. 

United States, 509 U.S. 602, 610, 620-21 (1993). The Court 

also correctly noted, however, that the undisputed record 

indicates that the program was imposed for rehabilitative 

and not punitive purposes. 

We need not reach that issue. Even assuming that there 

is a factual question as to whether the Cost Recovery 

Program amounts to a fine, we hold that it is not excessive. 

Under the principle of "proportionality[, t]he amount of the 

forfeiture must bear some relationship to the gravity of the 

offense that it is designed to punish." Bajakajian, 118 S. 

Ct. at 2036. The plaintiff 's underlying offenses included a 

conviction for possession with intent to deliver 

approximately 29 grams of cocaine in violation of 35 P.S. 

S 780-113(a)(30), which allows for a fine not to exceed 

$100,000.00. Id. S 780-113(f)(1.1). 

Here, the plaintiff accumulated debt of roughly 

$4,000.00. It can hardly be said that a sum that is less 

than one-twentieth the legally permissible fine is"grossly 

disproportional to the gravity of a defendant's offense." 

Bajakajian, 118 S. Ct. at 2036; see also Yskamp v. Drug 

Enforcement Admin., 163 F.3d 767, 773 (3d Cir. 1998) 

(forfeiture of property valued at over $500,000.00 in drug 

case not excessive). We will not speculate on the result we 

would reach where the offense was significantly less 

serious, or where the daily fees or total debt were

significantly higher. Cf. Ilkanic, 705 So. 2d at 1372-73 

(rejecting due process and equal protection challenges to 

statute that provided for assessment of $50.00 per day for 

"damages and losses for incarceration costs and other 

correctional costs"). Under the circumstances presently 

before us, however, we conclude as a matter of law that the 

amounts were not "excessive" under the Eighth 

Amendment. 

B. Fourteenth Amendment 

1. Due Process 

Under procedural due process, the plaintiff 's interest 

must fall within the scope of "life, liberty, or property." 

Hewitt v. Helms, 459 U.S. 460, 466 (1983). The defendants 

 15 
properly concede that the plaintiff has a property interest in 

his prison account, Reynolds, 128 F.3d at 179, but insist 

that he was provided with adequate procedural due 

process. We agree. 

In considering a due process claim, we look to the private 

interest, the governmental interest, and the value of the 

available procedure in safeguarding against an erroneous 

deprivation. Id.; see also Mathews v. Eldridge, 424 U.S. 

319, 335 (1976). Due process " `is flexible and calls for such 

procedural protections as the particular situation 

demands' " in order to "minimiz[e] the risk of error." 

Greenholtz v. Inmates of the Nebraska Penal and Corr. 

Complex, 442 U.S. 1, 12-13 (1979) (quoting Morrissey v. 

Brewer, 408 U.S. 471, 481 (1972)). "The amount of notice 

due depends on the context." Reynolds, 128 F.3d at 179 

(citing Gilbert v. Homar, 117 S. Ct. 1807, 1812 (1997)). 

In some cases, takings of property by the State require 

predeprivation notice and a hearing. Parratt v. Taylor, 451 

U.S. 527, 538 (1981), overruled on other gds. , Daniels v. 

Williams, 474 U.S. 327 (1986).11 But where the State must 

take quick action, or where it is impractical to provide 

meaningful predeprivation process, due process will be 

satisfied by a meaningful postdeprivation remedy. Id. at 

539. "In such cases, the normal predeprivation notice and 

opportunity to be heard is pretermitted if the State provides 

a postdeprivation remedy." Id. at 538."Parratt is not an 

exception to the Mathews balancing test, but rather an 

application of that test to the unusual case in which one of 

the variables in the Mathews equation -- the value of 

predeprivation safeguards -- is negligible in preventing the 

kind of deprivation at issue." Zinermon v. Burch, 494 U.S. 

113, 129 (1990).12 

_________________________________________________________________ 

11. Daniels overruled Parratt only to the extent that the earlier case 

held 

that a mere lack of due care may deprive an individual of "life, liberty, 

or property under the Fourteenth Amendment." Daniels, 474 U.S. at 

330-31. 

12. We recognize that some cases hold that Parratt does not apply where 

an " `established state procedure' " destroys an entitlement without 

proper procedural safeguards. See, e.g. , Logan v. Zimmerman Brush Co., 

455 U.S. 422, 436 (1982) (quoting Parratt, 451 U.S. at 541); Brown v. 

 16 
It is impractical to expect the prison to provide 

predeprivation proceedings under these circumstances. As 

the takings and assessments pass substantive 

constitutional muster,13 we only need ask whether the 

attendant procedure is also constitutionally adequate. It is. 

The assessments and takings pursuant to the program

involve routine matters of accounting, with a low risk of 

_________________________________________________________________ 

Trench, 787 F.2d 167, 171 (3d Cir. 1986). In such a case, a 

predeprivation hearing is still required. Brown , 787 F.2d at 171. 

However, the Supreme Court has since noted in an ex parte forfeiture 

case, i.e., one that involves established state procedures, that in 

"extraordinary situations," predeprivation notice and hearings are 

unnecessary. United States v. James Daniel Good Real Property, 510 U.S. 

43, 53 (1993). The case before us presents such an"extraordinary 

situation." As we held in Reynolds, "a prison must have the ability to 

deduct fees from an inmate's account even when the inmate refuses to 

grant authorization." Reynolds, 128 F.3d at 180. Thus, if the available 

postdeprivation procedure is adequate, then that is all the process to 

which the plaintiff is due under these circumstances. 

13. As noted in the previous section, the Cost Recovery Program does not 

violate the Eighth Amendment. Also, we do not see a substantive due 

process violation. Substantive due process rights"are at least as great as 

the Eighth Amendment protections available to a convicted prisoner." 

City of Revere, 463 U.S. at 244. We need only note that we have 

considered and rejected the plaintiff 's Eighth Amendment arguments. 

Further, we considered a substantive due process claim arising under 

almost identical circumstances in Reynolds, 128 F.3d at 182, and see no 

need to find differently here. 

We acknowledge that in United States v. Spiropoulos, 976 F.2d 155 (3d 

Cir. 1992), we held that former U.S.S.G. S 5E1.2(i) violated the Due 

Process Clause of the Fifth Amendment. Id. at 169. That Guideline 

required sentencing judges to order defendants to pay the costs of their 

imprisonment. Our decision in Spiropoulos, however, was premised on a 

lack of authority in the Sentencing Reform Act to assess fines to recoup 

the costs of incarceration. Id. at 165. Further, the funds collected under 

U.S.S.G. S 5E1.2(i) were not put towards prison costs, but instead placed 

into the Crime Victims Fund. The present case differs materially from 

Spiropoulos. Authorization for the Cost Recovery Program was specifically 

granted by the Lebanon County Prison Board. In addition, any funds 

raised under the Cost Recovery Program are put into the county's 

general fund, which in turn finances the county prison. In sum, any 

substantive theories proffered by the plaintiff fail. 

 17 
error. To the extent that mistakes such as erroneous 

assessments or incorrect takings might occur, they may be 

corrected through the prison's grievance program without 

any undue burden on a prisoners' rights. On the other 

hand, to 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 plaintiff had adequate notice of the grievance 

program and of the Cost Recovery Program. Upon 

confinement in January of 1997, notice of the Cost 

Recovery Program and a copy of it were still posted in the 

plaintiff 's cell block. Also, Tillman was given a handbook, 

which described the prison grievance procedure. When the 

handbook was updated to include the Cost Recovery 

Program and an expanded grievance procedure, the plaintiff 

was given a copy of that as well. He was given an additional 

copy of the handbook upon reconfinement in October of 

1997. The grievance program allowed prisoners to complain 

about "any" matter that is "unjust," and as updated, also 

provided for direct appeal to the warden. 

In sum, the plaintiff had an adequate postdeprivation 

remedy in the grievance program. In Reynolds, we held that 

the existence of a similar grievance program provided a 

sufficient remedy. 128 F.3d at 181. In sum, the plaintiff 

had an adequate postdeprivation remedy, thereby satisfying 

due process.14 

We also note that there is no due process violation in the 

fact that the plaintiff 's account was turned over for 

collection. He could have avoided this turn of events by 

making payments as low as $5.00 a week on his debt.

_________________________________________________________________ 

14. The plaintiff does not argue that advance notice of the program was 

required. In any case, because an adequate postdeprivation remedy 

exists, no advance notice was necessary. Even if advance notice were 

necessary, it was satisfied under the facts of this case. The plaintiff 's 

property right in his inmate account did not vest until he was 

incarcerated for parole violations. At that time, he was given notice of 

the 

existence of the program and the grievance procedure. Due process does 

not require more. 

 18 
The plaintiff also complains that the prison lacked

authority to implement the Cost Recovery Program, but we 

find no problem in that arena as well. Although we have 

not uncovered a statute explicitly providing for the 

deductions at issue here, the Cost Recovery Program was 

duly promulgated, not by the state, but by the county 

prison board, which has "exclusive[ ]" authority regarding 

"the government and management" of the facility. 61 P.S. 

S 408(a)(1).15 Other courts have not seen barriers to the 

_________________________________________________________________ 

15. Because Lebanon County is a county of thefifth class, its prison 

board is "exclusively vested" with "the safe-keeping, discipline, and 

employment of prisoners, and the government and management of said 

institution." 61 P.S. S 408(a)(1). The board "shall make such rules and 

regulations . . . as may be deemed necessary." Id. S 409. Thus, the 

prison board indeed has the authority to promulgate the Cost Recovery 

Program. 

Our conclusion is unchanged by 61 P.S. S 410, which states that "all 

the expenditures required for the support and maintenance of prisoners, 

the repairs and improvement of said prison, shall be paid from the 

county treasury by warrants drawn, in the mode now prescribed by law, 

on the regular appropriation for the purpose." Wefirst note that any 

funds obtained through the Cost Recovery Program are placed into the 

county's general fund, out of which all prison expenses -- including 

prisoner maintenance -- are duly paid in accordance with section 410. 

Thus, the Cost Recovery Program is not in violation of this statute. 

But we need not rest our conclusion on the mere mechanics of 

accounting. Reading section 410 as a whole makes it clear that its focus 

is on the proper procedures for payments, accounting, and contracting. 

See id. ("no warrant shall be certified by the controller for any expense 

connected with the prison unless on vouchers approved by a majority of 

said board and endorsed by the president and secretary thereof, and all 

contracts involving an expenditure of funds from the county treasury 

shall be made in accordance with [the law]"). 

More fundamentally, section 410 is utterly silent regarding the 

permissible sources of funds that go into the treasury. We do not read 

this silence to support the plaintiff 's argument. Rather, section 410 

simply requires that creditors be paid in the first instance by the 

county. 

In no way does it prohibit the recovery of costs from those who receive 

the benefits of those expenditures. To conclude otherwise would be 

contrary to Reynolds, where we upheld similar prisoner assessments. In 

sum, because sections 408 and 409 expressly grant broad and exclusive 

authority to the prison board, we reject the plaintiff 's suggestion that 

the board lacked the authority to promulgate the Cost Recovery Program. 

 19 
promulgation of such programs by prisons and prison

officials, and neither do we. See Reynolds, 128 F.3d at 170, 

183 (upholding program that was created by county 

prison); Mastrian, 725 F.2d at 1165-66 (upholding 

programs instituted by correctional officials). 

2. Equal Protection 

Nor do the facts show a violation of the Equal Protection 

Clause. Under that provision, persons who are similarly 

situated should be treated in the same manner. City of 

Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 

(1985). Because the distinctions at issue here do not 

implicate a suspect or quasi-suspect class, the state action 

here is presumed to be valid and will be upheld if it is 

"rationally related to a legitimate state interest." Id. at 440- 

42. The defendants maintain that the program is designed 

to teach fiscal responsibility to inmates. Another 

conceivable purpose is to reimburse the state for the 

expenses of incarceration. Malmed v. Thornburgh , 621 F.2d 

565, 569 (3d Cir. 1980) (state action may be upheld on any 

valid ground, even one hypothetically posed by the court). 

Both interests are legitimate and the plaintiff does not 

present an argument to the contrary. Further, the purposes 

of teaching fiscal responsibility and partially recouping the 

costs of incarceration are surely rationally related to 

requiring inmates to pay for their share of maintenance. 

The plaintiff would have to make similar expenditures on 

the outside, and making him do so under the Cost Recovery 

Program teaches him to assume real-world responsibilities. 

We also note that although "trusty" inmates are not

charged for room and board, they "pay" their housing costs 

by providing labor to the prison. Similarly, work release 

inmates pay at least $70.00 per week to the prison, and 

therefore do not pay any less than those prisoners in the 

Cost Recovery Program. Where there is no discrimination, 

there is no equal protection violation. Mastrian , 725 F.2d at 

1166. 

The plaintiff also complains that inmate Anthony Ashford 

was not charged any fees. Undisputed evidence shows that 

Ashford had been removed from the Work Release Program, 

 20 
and prison authorities mistakenly failed to begin charging 

him fees under the Cost Recovery Program. Upon being 

alerted to this oversight, Ashford's account was backcharged for all the relevant fees. As such, the plaintiff 

cannot point to any discrimination, and therefore to any 

equal protection violation. 

III. Conclusion 

The judgment of the District Court will be affirmed. 

 21 
RENDELL, Circuit Judge, concurring in part and dissenting 

in part: 

In his pro se complaint, Tillman, a state prisoner, alleges 

that the Lebanon County prison took half of the money in 

his wallet, as well as half of the money orders sent to him, 

to pay the balance of a daily $10 charge incurred during an 

earlier prison sentence. The prison took this money

pursuant to a policy adopted by the Lebanon County Prison 

Board. Tillman states, "I sign [sic] no agreement or 

contracts to have them take my money." His counseled 

brief on appeal similarly attacks the prison's basis for 

taking his money, stating that "no court, nor any statute, 

authorizes the imposition of the arbitrary costs forced on 

appellant against his will." Brief for Appellant at 6. 

According to the affidavit of the former Chairman of the 

Lebanon County Prison Board, the Prison Board adopted 

the Cost Recovery Program "as a rehabilitative measure, 

designed to teach sentenced inmates financial 

responsibility, by requiring them to contribute to the 

expenses necessary to house, feed, clothe and protect them 

while incarcerated." App. 92. 

The majority concludes that the prison's internal 

grievance procedure provides prisoners with the postdeprivation opportunity for a hearing that due process 

requires. I agree with the majority's holding, as far as it 

goes. However, I do not think we have addressed the more 

fundamental substantive due process question raised by 

Tillman's allegations, namely, what enables the Lebanon 

County Prison Board to impose this consequence upon a 

person convicted of a state crime? Can it, on its own, 

decide to deprive state prisoners unfortunate enough to be 

housed there of $10 per day, to be paid to the county's 

coffers, under the guise of rehabilitating them and teaching 

them financial responsibility? Although the imposition of 

this compensation scheme is obviously not the same as 

restitution, it strikes me as a similar type of sentencing 

consequence that should emanate from the state in the first 

instance.1 

_________________________________________________________________ 

1. In Pennsylvania, "an order of restitution must be based on statutory 

authority." In the Interest of M.W., 725 A.2d 729, 731 (Pa. 1999) (citing 

 22 
As the majority notes, other states have passed 

legislation authorizing prisons to take inmates' funds in 

situations such as this. Interestingly, the Pennsylvania 

legislature has chosen to authorize county prisons to collect 

a reasonable amount from prisoners, but the statute

applies only to those incarcerated "on weekends or other 

short periods each week."2 I submit that the record and 

briefs do not explore this issue adequately. I suggest, 

further, that the majority's reasoning, contained in a 

footnote, that a state law establishing boards of inspectors 

to oversee prison operations provides the requisite authority 

to impose this charge as a consequence of incarceration is 

less than persuasive. I also do not believe that the case law 

cited by the majority provides a satisfactory paradigm for 

this type of mandatory charge.3 

_________________________________________________________________ 

Commonwealth v. Harner, 617 A.2d 702, 704 (Pa. 1992) ("It is generally 

agreed that restitution is a creature of statute and, without express 

legislative direction, a court is powerless to direct a defendant to make 

restitution as part of a sentence.")). In the federal context, we recently 

reiterated the "firmly established principle that federal courts may not 

order restitution in the absence of statutory authorization." United 

States 

v. Akande, 200 F.3d 136, 138 (3d Cir. 1999). If the rehabilitative 

measure Tillman challenges is not a punitive one, what is its precise 

character? 

2. Section 2146, "Collection from weekend prisoners," provides as 

follows: 

 The county prison board, or where applicable the county 

 commissioners, may, by resolution which shall establish rates and 

 qualifications, authorize the warden, sheriff or other person in 

 charge of the jail to collect a reasonable amount from prisoners 

 incarcerated only on weekends or other short periods each week. 

Pa. Stat. Ann. tit. 61 S 2146 (West 1999). See Commonwealth v. 

Cassell, 12 Pa. D. & C. 4th 265 (York County 1991) (concluding that 

section 2146 authorized short-term fee to be imposed upon defendant, 

who had requested deferment of mandatory minimum 48-hour prison 

sentence). 

3. The precise question at issue in this appeal was raised in neither 

Reynolds v. Wagner, 128 F.3d 166 (3d Cir. 1997), nor Mastrian v. 

Schoen, 725 F.2d 1164 (8th Cir. 1984) (affirming grant of summary 

judgment in favor of state correction officials on a complaint alleging an 

 23 
Tillman has presented a fundamental question, and I

would reverse and remand for further development of this 

issue. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

equal protection violation stemming from a now-discontinued 

experimental program to charge room and board based on inmates' 

levels of income in a state prison). In Reynolds , we characterized the 

fee 

at issue as to be paid in consideration for beneficial medical services, 

Reynolds, 128 F.3d at 180, and it is clear from the exceptions to the fee 

requirement (e.g., initial intake, emergency, psychiatric services, 

chronic 

illness screening) that choice was involved to avail oneself of medical 

services for which a fee was charged, which is not the case here. 

 24