2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-12-2002

Higgins v. Beyer

Precedential or Non-Precedential: Precedential

Docket No. 99-5556

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Recommended Citation

"Higgins v. Beyer" (2002). 2002 Decisions. Paper 350.

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PRECEDENTIAL 

 Filed June 12, 2002 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 99-5556 

VINCENT M. HIGGINS, 

 Appellant 

v. 

HOWARD L. BEYER, DEPARTMENT OF CORRECTIONS; 

WILLIAM F. PLANTIER; GRACE ROGERS; JAMES 

DOOLEY; THOMAS MORAN; DANIEL BARRAJAS; 

LILLYANNE D. YEAGER; LINDA COOK; FRANK BRUNO; 

ANSELM JEEVERATNAM; MARGARET C. ZORSKY; 

BRENDA GIBB; GWINN GOODE; JOSEPH DOE, (LAST 

NAME A FICTITIOUS NAME), IN THEIR INDIVIDUAL 

CAPACITY, JOINTLY, SEVERALLY OR IN 

THE ALTERNATIVE 

On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Civ. No. 98-CV-03641) 

District Judge: Hon. Garrett E. Brown, Jr. 

Argued April 5, 2002 

Before: SLOVITER, BARRY, and ALARCON,* 

Circuit Judges 

(Filed: June 12, 2002) 

_________________________________________________________________ 

* Hon. Arthur L. Alarcon, Senior Judge, United States Court of Appeals 

for the Ninth Circuit, sitting by designation. 

 

 S. William Livingston, Jr. 

 Jennifer E. Schwartz (ARGUED) 

 Covington & Burling 

 1201 Pennsylvania Avenue, N.W. 

 Washington, DC 20004-2401 

 Attorneys for Appellant 

 John J. Farmer, Jr., Attorney 

 General of New Jersey 

 Michael J. Hass 

 Jeffrey K. Gladden (ARGUED) 

 R.J. Hughes Justice Complex 

 25 Market Street 

 Trenton, New Jersey 08625 

 Attorneys for Appellees 

OPINION OF THE COURT 
ALARCON, Circuit Judge: 

Vincent M. Higgins appeals from the dismissal of his 

federal civil rights claim that Howard L. Beyer, the 

Assistant Commissioner of the New Jersey Department of 

Corrections, and 13 employees of the Adult Diagnostic and 

Treatment Center ("ADTC employees") violated 38 U.S.C. 

S 5301(a) by seizing money derived from a veteran’s 

disability benefits check from his inmate account to pay a 

state court-ordered fine, and that he was deprived of his 

constitutional right to due process because his request for 

a predeprivation hearing was ignored. He also seeks 

reversal of the dismissal of his claim, on the ground of 

mootness, that prison employees retaliated against him for 

exercising constitutionally protected rights. 

We reverse because we conclude that Higgins’s pro se 

complaint, when liberally construed, stated sufficient facts 

to state a cause of action for a violation of a federal right 

under S 5301(a), and a deprivation of his Fourteenth 

Amendment right to notice and hearing prior to the 

 2 

 

deprivation of his property interest in the proceeds of his 

veteran’s benefits. We also hold that the district court erred 

in dismissing his claim that the prison officials retaliated 

against him for asserting his rights under the Due Process 

Clause. 

I 

Higgins alleged the following facts in his complaint. 

Higgins served in the United States Army from 1974 to 

1978. While in the Army, Higgins injured his left hand, 

leaving him partially disabled. This partial disability 

qualified Higgins to receive disability benefits from the 

Veteran’s Administration ("VA") for the remainder of his life. 

In 1992, Higgins pled guilty to the crime of First Degree 

Aggravated Sexual Assault in the Superior Court of New 

Jersey. The court sentenced Higgins to a 10-year term of 

imprisonment to be served at the ADTC in Avenel, New 

Jersey. The court also imposed a Victims of Crime 

Compensation Board ("VCCB") fine in the amount of 

$1,000, pursuant to section 2C:43-31 of the New Jersey 

Statutes Annotated. N.J. Stat. Ann. S 2C:43-3.1 (West 

1995). Section 2C:43-3.1 expressly requires a New Jersey 

Superior Court to order the Department of Corrections to 

collect a VCCB fine from the personal account of an inmate 

if the assessment was not paid at the time of sentencing.1 

_________________________________________________________________ 

1. Section 2C:43-3.1 provides in pertinent part: 

 In addition to any disposition made pursuant to the provisions of 

 N.J.S. 2C:43-2, any person convicted of a crime of violence . . . shall 

 be assessed at least $100.00, but not to exceed $10,000.00 for each 
 such crime for which he was convicted which resulted in the injury 

 or death of another person. . . . When a defendant who is sentenced 

 to incarceration in a State correctional facility has not, at the time 

 of sentencing, paid an assessment for the crime for which he is 

 being sentenced or an assessment imposed for a previous crime, the 

 court shall specifically order the Department of Corrections to collect 

 the assessment during the period of incarceration and to deduct the 

 assessment from . . . any personal account established in the 

 institution for the benefit of the inmate. 

N.J. Stat. Ann S 2C:43-3.1(a)(1), (a)(3). 

 3 

 

At the time of sentencing, Higgins had not yet received any 

disability benefits from the VA. 

On April 7, 1993, Higgins was transferred from the 

Monmouth County Correctional Center Facility to the 

ADTC. On or about April 1, 1998, he received a notification 

from the VA that his claim for benefits for partial disability 

had been approved. He was advised that he would receive 

a check for benefits due from January 1, 1991 to March 31, 

1998. 

On May 29, 1998, a United States Treasury Department 

check in the amount of $7,608, made out to Higgins as the 

payee, arrived at the ADTC. On the same date, Higgins was 

notified during mail call by an ADTC employee that the 

check had arrived. He was not handed the check nor did he 

authorize any prison employee to deposit it in his inmate 

account. The standard procedure at the ADTC when a 

check is received is to request the inmate to sign a form 

acknowledging receipt of the check and then endorse it "For 

Deposit Only." The ADTC employees did not follow this 

procedure. 

Later that day, Higgins wrote four "business remits," 

which instructed prison employees to forward money in the 

amounts of $5,000, $2,000, and two for $200 apiece to 

various persons. A "business remit" is the term used at the 

ADTC for an inmate’s authorization that money be 

deducted from his account. 

On May 31, 1998, Higgins asked the social worker 

assigned to his wing to find out what had happened to his 

check. The social worker informed Higgins that ADTC 

employees intended to use part of the proceeds of the VA 

disability benefits check to pay the outstanding VCCB fine 

ordered by the New Jersey Superior Court. On the same 

date, Higgins filed a written complaint addressed to ADTC 

Superintendent William F. Plantier in which Higgins stated 

that a VA disability benefits check is not attachable 

pursuant to 38 U.S.C. S 5301. 

On June 2, 1998, ADTC Assistant Superintendent Grace 

Rogers sent a letter to Higgins in which she stated that 

Higgins’s VA disability benefits check had been received 

and would be deposited in his inmate account. On June 3, 
 4 

 

1998, Higgins received written confirmation that his check 

had been deposited in his inmate account. On June 9, 

1998, Linda Cook, an ADTC social worker, notified Higgins 

that none of the checks that he had authorized would be 

sent out until he signed a business remit authorizing the 

withdrawal of $1,000 to pay the VCCB fine. Higgins refused 

on the ground that a VA disability benefits check is not 

attachable pursuant to 38 U.S.C. S 5301. He also stated 

that under the terms of his plea bargain, he was only 

required to pay an assessment of $30 and that he had filed 

a habeas corpus petition challenging the imposition of a 

VCCB fine in the amount of $1,000. Ms. Cook informed 

Higgins that only a portion of the checks he had authorized 

would be sent out so that there would be sufficient funds 

in his inmate account to satisfy the VCCB fine. 

On June 10, 1998, Daniel Barrajas, ADTC’s Assistant 

Mail Supervisor, asked Higgins to endorse the VA disability 

benefits check. Higgins refused. On the same date, Higgins 

wrote to Superintendent Plantier requesting a written 

explanation of the disposition of his VA disability benefits 

check. Higgins also stated that if he did not receive a 

written explanation by June 12, 1998, he would file an 

action in the United States District Court. Superintendent 

Plantier did not reply. Sometime thereafter, ADTC 

employees deducted $1,000 from Higgins’s inmate account 

to pay the VCCB fine ordered by the New Jersey Superior 

Court. 

II 

Higgins filed this S 1983 action on August 4, 1998. Prior 

to filing an answer, the ADTC employees moved to dismiss 

the complaint on October 14, 1998, pursuant to Rule 

12(b)(6) of the Federal Rules of Civil Procedure, asserting 

that Higgins had failed to state a claim upon which relief 

can be granted. Higgins filed his opposition to the Rule 

12(b)(6) motion on November 9, 1998. 

While the motion to dismiss was pending, Higgins filed a 

pro se pleading styled as a "NOTICE OF MOTION IN 

SUPPORT OF AFFIDAVIT/DEPOSITION TO CONSOLIDATE 

THESE ARGUMENTS WITH THE ABOVE DOCKET CASE 

 5 

 

AND/OR ORDER OF PROTECTION/INJUNCTION." In this 

motion, Higgins alleged that ADTC employees brought false 

charges against him, resulting in his confinement in 

administrative segregation for 365 days and the denial of 

his access to the courts, in retaliation for the filing of this 

action for damages for the deprivation of his rights 

pursuant to 38 U.S.C. S 5301(a) and the Due Process 

Clause of the Fourteenth Amendment. 
On June 10, 1999, without the benefit of oral argument, 

the district court granted the ADTC employees’ motion to 

dismiss this action, for failure to state a claim upon which 

relief can be granted. In a footnote to its memorandum 

opinion, the district court stated: "In light of this Court’s 

granting of the motion to dismiss plaintiff ’s complaint as to 

the fourteen individual defendants, the later-filed motion of 

pro se plaintiff Vincent Higgins for a preliminary injunction 

shall be denied as moot." The court did not explain how 

Higgins’s discrete claim that ADTC employees retaliated 

against him for asserting his right to access to the courts 

was rendered moot by his alleged failure to state a claim for 

the deprivation of his property in violation ofS 5301(a) and 

his constitutional right to a predeprivation hearing. 

Higgins has timely appealed the district court’s final 

judgment in this S 1983 action. Accordingly, we have 

jurisdiction over this appeal. 28 U.S.C. S 1291. 

III 

Higgins contends that the district court erred in ruling 

that he failed to allege sufficient facts to demonstrate that 

the ADTC employees violated S 1983. He argues that the 

complaint alleges sufficient facts to state a claim under 

S 1983 either for depriving him of money derived from a VA 

disability benefits check in violation of S 5301(a), or for 

denying him his constitutional right to a predeprivation 

hearing to challenge the threat to remove funds derived 

from his VA disability benefits check from his inmate 

account. 

Our review of the dismissal of an action pursuant to Rule 

12(b)(6) is plenary. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 

 6 

 

1996). This Court has described the nature of our review as 

follows: 

 We must determine whether, under any reasonable 

 reading of the pleadings, the plaintiffs may be entitled 

 to relief, and we must accept as true the factual 

 allegations in the complaint and all reasonable 

 inferences that can be drawn therefrom. The complaint 

 will be deemed to have alleged sufficient facts if it 

 adequately put the defendants on notice of the 

 essential elements of the plaintiffs’ cause of action. 

 Since this is a S 1983 action, the plaintiffs are entitled 

 to relief if their complaint sufficiently alleges 

 deprivation of any right secured by the Constitution. In 

 considering a Rule 12(b)(6) motion, we do not inquire 

 whether the plaintiffs will ultimately prevail, only 

 whether they are entitled to offer evidence to support 

 their claims. Thus, the district court’s order granting 

 the defendants’ motion to dismiss will be affirmed only 

 if it appears that the plaintiffs could prove no set of 

 facts that would entitle them to relief. 
Id. (citations omitted). Moreover, as Higgins filed his 

complaint pro se, we must liberally construe his pleadings, 

and we will "apply the applicable law, irrespective of 

whether a pro se litigant has mentioned it by name." Holley 

v. Dep’t of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 

1999). 

Section 1983 authorizes a person to file a private cause 

of action against state actors for a deprivation of rights 

protected by a federal statute or the United States 

Constitution. Section 1983 provides in pertinent part: 

 Every person who, under color of any statute, 

 ordinance, regulation, custom, or usage, of any State 

 or Territory or the District of Columbia, subjects, or 

 causes to be subjected, any citizen of the United States 

 or other person within the jurisdiction thereof to the 

 deprivation of any rights, privileges, or immunities 

 secured by the Constitution and laws, shall be liable to 

 the party injured in an action at law, suite in equity, or 

 other proper proceeding for redress . . . . 

 7 

 

42 U.S.C. S 1983. It is undisputed that the ADTC 

employees were state actors who deprived Higgins of funds 

derived from his VA disability benefits check without his 

consent under color of a state court order issued pursuant 

to N.J. Stat. Ann. S 2C:43-3.1(a)(3). 

A. 

We must first consider whether Higgins alleged sufficient 

facts to demonstrate a violation of 38 U.S.C. S 5301(a). 

Section 5301(a) provides in relevant part: 

 Payments of benefits due or to become due under any 

 law administered by the Secretary shall not be 

 assignable except to the extent specifically authorized 

 by law, and such payments made to, or on account of, 

 a beneficiary shall be exempt from taxation, shall be 

 exempt from the claim of creditors, and shall not be 

 liable to attachment, levy, or seizure by or under any 

 legal or equitable process whatever, either before or 

 after receipt by the beneficiary. The preceding sentence 

 shall not apply to claims of the United States arising 

 under such laws nor shall the exemption therein 

 contained as to taxation extend to any property 

 purchased in part or wholly out of such payments. 

 . . . 

38 U.S.C. S 5301(a). 

In order to state a claim under S 1983, a plaintiff must 

allege a "violation of a federal right, and not merely a 

violation of federal law." Pa. Pharmacists Ass’n v. Houstoun, 

283 F.3d 531, 535 (3d Cir. 2002) (en banc) (quotation 

omitted). This Court recently explained that "a plaintiff 

alleging a violation of a federal statute may not proceed 
under S 1983 unless 1) the statute creates enforceable 

rights, privileges, or immunities within the meaning of 

S 1983 and 2) Congress has not foreclosed such 

enforcement of the statute in the enactment itself." Id. 

(quotations omitted). 

To create a right enforceable under S 1983, the federal 

statute at issue must meet three conditions: 

 8 

 

 First, Congress must have intended that the provision 

 in question benefit the plaintiff. Second, the plaintiff 

 must demonstrate that the right assertedly protected 

 by the statute is not so "vague and amorphous" that its 

 enforcement would strain judicial competence. Third, 

 the statute must unambiguously impose a binding 

 obligation on the States. In other words, the provision 

 giving rise to the asserted right must be couched in 

 mandatory, rather than precatory, terms. 

Blessing v. Freestone, 520 U.S. 329, 340-41 (1997) 

(citations omitted). Once all three conditions are met, a 

rebuttable presumption arises that the right is enforceable 

under S 1983. Id. at 341; Pa. Pharmacists Ass’n, 283 F.3d 

at 535. "This presumption may be rebutted by showing that 

Congress expressly or impliedly foreclosed an action under 

S 1983." Pa. Pharmacists Ass’n, 283 F.3d at 535. 

Congress may impliedly foreclose a remedy underS 1983 

"by creating a comprehensive enforcement scheme that is 

incompatible with individual enforcement under S 1983." 

Blessing, 520 U.S. at 341. Section 5301(a) contains neither 

express language nor a comprehensive enforcement scheme 

that demonstrates that Congress intended to foreclose a 

remedy under S 1983 for a violation of S 5301(a). We are 

persuaded that S 5301(a) provides a federal right that is 

enforceable under S 1983. 

The purpose of the prohibition against the attachment, 

levy, or seizure of a veteran’s disability benefits in S 5301(a) 

is to "prevent the deprivation and depletion of the means of 

subsistence of veterans dependent upon these benefits as 

the main source of their income." Rose v. Rose, 481 U.S. 

619, 630 (1987) (quotation omitted). Even though Higgins, 

because he is a prisoner, does not presently need or rely 

upon his disability benefits for subsistence, his right 

nonetheless to receive those benefits free from attachment, 

levy, or seizure is expressly set forth in clear, mandatory 

language in the statute. Section 5301(a) also precludes 

anyone from using any "legal or equitable process" to 

attach, levy, or seize these benefits. Thus, S 5301(a) 

satisfies the conditions set forth in Blessing v. Freestone for 

creating a federal right enforceable under S 1983. 

 9 

 

Our holding that a violation of a veteran’s rights under 
S 5301(a) is enforceable against state prison officials 

pursuant to S 1983 is supported by the Ninth Circuit’s 

decision in Nelson v. Heiss, 271 F.3d 891 (9th Cir. 2001). 

In Nelson, the court held that future veteran’s benefits are 

exempt from a hold placed on an inmate’s account where 

the inmate consented to and the prison officials authorized 

the hold to cover purchases of medical-record copies and 

dental appliances when there were insufficient funds to 

cover the overdrafts. Id. at 893-96. The Ninth Circuit held 

that the holds placed on the veteran’s inmate account by 

the prison officials violated S 5301(a) because a veteran’s 

benefits are exempt from assignment, attachment, levy, or 

seizure. Id. In Nelson, the state actors were attempting to 

recoup funds advanced for the veteran’s medical needs. Id. 

at 893. In rejecting the contention of the state actors that 

they had a right to the funds after providing overdraft 

protection, the Ninth Circuit reasoned: "Section 5301(a) was 

designed to protect veteran’s benefits against their creditors 

so that the veterans themselves could spend those funds as 

they saw fit when they actually got them, and not before." 

Id. at 894. 

In response to the prison officials’ argument that 

Congress could not have intended to prohibit the taking of 

a veteran’s disability benefits for his or her maintenance 

and care as allowed by a number of states, the Ninth 

Circuit observed: "But if Congress wanted to create 

exceptions to [non-attachment or seizure], it knew how to 

do so." Id. at 896. In Nelson, the Ninth Circuit applied 

S 5301(a), notwithstanding the fact that the prisoner had 

specifically consented to the future payment for the goods 

and services from his account when he received a VA check 

that would cover his depleted inmate account. Id. at 895. 

In this matter, Higgins did not consent to the taking of 

money from his inmate account. Instead, he warned the 

ADTC employees that the use of his disability benefits to 

satisfy the VCCB fine violated S 5301(a). Thus, the matter 

before us presents a more compelling factual basis for 

applying S 5301(a) to protect money derived from Higgins’s 

disability benefits from attachment, levy, or seizure than 

the circumstances before the Ninth Circuit in Nelson. 

 10 

 

The Supreme Court has not yet construed S 5301(a) to 

determine whether prison officials can attach or seize funds 

in an inmate’s account derived from a VA disability benefits 

check. In Bennett v. Arkansas, 485 U.S. 395 (1988), the 

Court was called upon to determine whether a State can 

attach Social Security benefits to help defray the cost of 

maintaining its prison system. Id. at 396. The State of 

Arkansas filed an action in state court seeking to attach 

Bennett’s Social Security benefits to defray the cost of 

maintaining its prison system pursuant to the State Prison 

Inmate Care and Custody Reimbursement Act, Ark. Stat. 

Ann. S 46-1701 et seq. (Supp. 1985). Id. The Arkansas 

statute expressly authorized the seizure of federal Social 

Security benefits for this purpose. Id. at 396 n.1. 
In his opposition to the State’s action, Bennett argued 

that the Arkansas statute violated the Supremacy Clause 

because it was in conflict with 42 U.S.C. S 407(a), which 

exempts Social Security benefits "from legal process." Id. at 

397. Section 407(a) provides in relevant part that"none of 

the moneys paid or payable . . . under [the Social Security 

Act] shall be subject to execution, levy, attachment, 

garnishment, or other legal process." 42 U.S.C.S 407(a). 

The state trial court entered judgment in favor of the State 

and directed that a portion of Bennett’s Social Security 

benefits be seized. 485 U.S. at 397. The Supreme Court of 

Arkansas affirmed, holding that there was no conflict 

between the Arkansas statute and 42 U.S.C. S 407(a) 

because " ‘the [Social Security Act] contain[s] an implied 

exception to the exemption from legal process when the 

State provides for the care and maintenance of a 

beneficiary of social security . . . funds.’ " Id. at 397 (quoting 

Bennett v. State, 716 S.W.2d 755, 756 (Ark. 1986)). 

The Court granted Bennett’s petition for certiorari and 

reversed the judgment of the Supreme Court of Arkansas. 

Id. at 397-98. The Court reasoned as follows: 

 We think--contrary to the conclusion of the Supreme 

 Court of Arkansas--that there is a clear inconsistency 

 between the Arkansas statute and 42 U.S.C. S 407(a) 

 (1982 ed., Supp. III). Section 407(a) unambiguously 

 rules out any attempt to attach Social Security 

 benefits. The Arkansas statute just as unambiguously 

 11 

 

 allows the State to attach those benefits. As we see it, 

 this amounts to a "conflict" under the Supremacy 

 Clause--a conflict that the State cannot win. 

Id. at 397. 

We recognize that the language used by Congress in 

protecting Social Security benefits in S 407(a) is not 

precisely the same as the words it employed in S 5301(a) 

regarding the attachment or seizure of a veteran’s disability 

benefits. We agree with the Ninth Circuit, however, that "its 

reach is essentially the same." Nelson, 271 F.3d at 895. 

We next turn to the question whether the New Jersey 

statutes are preempted under the Supremacy Clause 

because they are inconsistent with S 5301(a). The ADTC 

employees argue that the doctrine of preemption is not 

applicable on several grounds. They first maintain that 

there is no conflict between N.J. Stat. Ann. S 2C:43-3.1 and 

S 5301(a). They assert that S 5301(a) is inapplicable because 

the VCCB is not Higgins’s creditor and the deduction from 

his inmate account was not accomplished by an 

attachment, levy, or seizure under legal or equitable 

process. We disagree. This contention ignores the 

unambiguous intent of the New Jersey legislature in 

enacting the Criminal Injuries Compensation Act of 1971 
("CICA"). See N.J. Stat. Ann. S 52:4B-1 et seq. (West 2001). 

The CICA created the Violent Crimes Compensation Board. 

Id. S 52:4B-3.2 Under the provisions of the CICA, the VCCB 

may order the payment of compensation for personal 

injuries suffered by the victim of an aggravated sexual 

assault. Id. SS 52:4B-2; 52:4B-11(b)(9). 

Section 2C:43-3.1 provides for the collection of funds for 

the VCCB through court-ordered fines assessed against 

persons convicted of a crime of violence which resulted in 

the injury of another person. The imposition of the VCCB 

assessment is mandatory. Id. S 2C:43-3.1(a)(1). As noted 

above, if the assessment is not paid at the time of 

sentencing, the court must order the Department of 

_________________________________________________________________ 

2. The name of the Violent Crimes Compensation Board was changed in 

1995 to the Victims of Crime Compensation Board. N.J. Stat. Ann. 

S 52:4B-3.1. 

 12 

 

Corrections to collect the assessment during the period of 

incarceration by deducting funds from the defendant’s 

inmate account. Id. S 2C:43-3.1(a)(3). Under such 

circumstances, employees of the Department of Corrections 

are required to forward the amount collected to the VCCB. 

Id. 

The ADTC employees rely on the Fifth Circuit’s decision 

in Department of Health & Rehabilitative Services v. Davis, 

616 F.2d 828 (5th Cir. 1980), in support of their 

proposition that the VCCB is not a creditor within the 

meaning of S 5301(a). Their reliance on Davis is misplaced. 

In Davis, the Florida Department of Health and 

Rehabilitative Services filed an action seeking an order 

granting it reimbursement of $12,000 for the care and 

maintenance of an incompetent in the Florida State 

Hospital. Id. at 829. During the years that the incompetent 

was hospitalized, his guardian accumulated $40,000 in 

Social Security and veteran’s benefits. Id. His guardian 

refused to reimburse the Florida Department of Health and 

Rehabilitative Services on the basis that the moneys 

received from federal Social Security and veteran’s benefits 

statutes were exempt from a creditor’s claims. Id. The 

district court denied relief. Id. The Fifth Circuit reversed. Id. 

It concluded that since the purpose of each federal statute 

was to provide for the care and maintenance of its 

beneficiaries, it was consistent with that goal to reimburse 

a state agency that provided for an incompetent person’s 

care and maintenance. Id. at 831-32. 

In the matter sub judice, the intent of the New Jersey 

Legislature in enacting the CICA was not aimed at 

providing for the care and maintenance of persons 

convicted of violent crimes. The CICA’s purpose is to 

compensate victims of violent crimes for their injuries. 

Moreover, subsequent to Davis, the Supreme Court 

rejected, in the context of Social Security benefits, the very 
argument the state made in Davis. Bennett, 485 U.S. at 

397-98. As we have explained, the Supreme Court 

interpreted the language of 42 U.S.C. S 407(a) as barring 

Arkansas from retaining an inmate’s Social Security 

benefits, regardless of its purpose in doing so. The very 

similar mandatory and all-inclusive language ofS 5301(a) 

requires the same conclusion here. 

 13 

 

A creditor is a person or entity to whom a debt is owed. 

Black’s Law Dictionary 375 (7th ed. 1999). A debtor is a 

person who owes an obligation to another. Id. at 411. 

Pursuant to the CICA, a court must order a person 

convicted of a violent crime to pay an assessment to the 

VCCB. N.J. Stat. Ann. S 2C:43-3.1(a)(1). The judgment is 

enforceable by requiring employees of the New Jersey 

Department of Corrections to seize the amount owing to the 

VCCB from the inmate’s account. Id. S 2C:43-3.1(a)(3). 

Thus, contrary to the position of the ADTC employees, the 

VCCB is a creditor within the meaning of S 5301(a). The 

CICA has created a creditor-debtor relationship between a 

person convicted of the crime of aggravated sexual assault 

and the VCCB that is enforceable by a court order. 

The ADTC employees also maintain that the deduction of 

funds derived from Higgins’s VA disability benefits check 

did not violate S 5301(a) because it was not effected by 

attachment, levy, seizure by or under any legal or equitable 

process. As discussed above, the CICA requires a New 

Jersey court to "specifically order the Department of 

Corrections to collect the assessment during the period of 

incarceration and to deduct the assessment . . . from any 

personal account established in the institution for the 

benefit of the inmate." N.J. Stat. Ann. S 2C:43-3.1. The 

term "levy" is defined as the seizure of property to satisfy a 

judgment. Black’s Law Dictionary, supra, at 919. We are 

persuaded that the collection of funds from Higgins’s 

inmate account by the ADTC employees was clearly a levy 

or a seizure required by New Jersey law. 

The ADTC employees further assert that N.J. Stat. Ann. 

S 2C:43-3.1(a)(3) does not conflict with S 5301(a) because 

New Jersey law "mandates the care, government and 

maintenance of inmates by the Commissioner of the 

Department of Corrections, thereby fulfilling the 

Congressional intent of 38 U.S.C. S 5301(a)." Appellees Br. 

at 19-20. The Supreme Court rejected a similar argument 

in Bennett. There, the Court noted thatS 407(a) of the 

Social Security Act does not contain "an ‘implied exception’ 

that would allow attachment of otherwise exempted federal 

payments simply because the State has provided the 

recipient with ‘care and maintenance.’ " 485 U.S. at 397. 

 14 

 

Likewise, S 5301(a) does not contain an implied exception 

which would allow the collection of funds derived from a VA 
disability benefits check to compensate his or her crime 

victim merely because New Jersey law requires the 

Department of Corrections to provide for an inmate’s care 

and maintenance. 

As noted previously, Congress’s purpose in enacting 

S 5301(a) was to "prevent the deprivation and depletion of 

the means of subsistence of veterans dependent upon these 

benefits as the main source of their income." Rose, 481 

U.S. at 630. Section 2C:43-3.1(a)(3) expressly allows the 

deduction of any funds located in an inmate’s personal 

account. To the extent this statute allows the deduction of 

funds derived from a VA disability benefits check, its 

provisions conflict with S 5301(a). "A state law is in conflict, 

and void under the supremacy clause, if it stands as an 

obstacle to the accomplishment and execution of the full 

purposes and objective of Congress." Finberg v. Sullivan, 

634 F.2d 50, 63 (3d Cir. 1980) (en banc) (quotation 

omitted). To the extent N.J. Stat. Ann. S 2C:43-3.1(a)(3) 

authorizes prison officials to deduct funds derived from a 

prisoner’s VA disability benefits check, it conflicts with the 

purpose and objectives of Congress in enacting S 5301(a) 

and is void under the Supremacy Clause. 

B. 

Higgins also challenges the dismissal of his claim that 

the ADTC employees took his VA benefits without notice or 

a hearing, in violation of his procedural due process rights 

under the Fourteenth Amendment. The Fourteenth 

Amendment prohibits the States from depriving "any person 

of life, liberty, or property, without due process of law." U.S. 

Const. amend. XIV, S 1. This Court has previously held that 

"[i]nmates have a property interest in funds held in prison 

accounts. Thus, inmates are entitled to due process with 

respect to any deprivation of this money." Reynolds v. 

Wagner, 128 F.3d 166, 179 (3d Cir. 1997) (citations 

omitted). The Supreme Court has explained the 

requirements of the Due Process Clause as follows: 

 In situations where the State feasibly can provide a 

 predeprivation hearing before taking property, it 

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 generally must do so regardless of the adequacy of a 

 postdeprivation tort remedy to compensate for the 

 taking. Conversely, in situations where a 

 predeprivation hearing is unduly burdensome in 

 proportion to the liberty interest at stake, or where the 

 State is truly unable to anticipate and prevent a 

 random deprivation of a liberty interest, 

 postdeprivation remedies might satisfy due process. 

Zinermon v. Burch, 494 U.S. 113, 132 (1990) (citations 

omitted). 

Higgins alleged in his complaint that the ADTC 

employees took money from his inmate account without 
providing him with a predeprivation hearing. The ADTC 

employees argue that they did not improperly deny Higgins 

a predeprivation hearing because the New Jersey Torts 

Claims Act provides Higgins with an adequate 

postdeprivation remedy to seek money damages for the 

seizure of his property. Higgins did not allege facts that 

demonstrate that his funds were seized as the result of a 

random, negligent, or unauthorized act of an ADTC 

employee. Rather, Higgins alleged that the ADTC employees 

were acting under the authority of an established state 

procedure for seizing a prisoner’s funds to satisfy courtordered fines. The ADTC employees have argued before this 

Court that they were acting pursuant to N.J. Stat. Ann. 

S 2C:43-3.1(a)(3) when they deducted funds from Higgins’s 

account. Thus, under Zinermon, Higgins was entitled to 

notice and hearing before the ADTC employees deducted 

money from his account. 

Higgins has alleged sufficient facts to establish that he 

was entitled to a predeprivation notice and hearing. 3 

_________________________________________________________________ 

3. We note that the alleged violation of Higgins’s Fourteenth Amendment 

right to due process occurred at the moment he was deprived of his 

property interest without notice and a predeprivation hearing (i.e., when 

the ADTC employees seized the money in his inmate account). Thus, 

Higgins’s procedural due process claim would not be rendered moot even 

if he is ultimately successful in recovering the $1,000 under his 

S 5301(a) claim. In such a situation, Higgins would still be entitled to 

nominal damages on a successful procedural due process claim despite 

the fact that he may be unable to prove actual injury from the 

 16 

 

Moreover, Higgins’s procedural due process rights are 

enforceable under S 1983. See Zinermon, 494 U.S. at 125 

("A S 1983 action may be brought for a violation of 

procedural due process . . . ."). The district court erred in 

dismissing Higgins’s procedural due process claim under 

Rule 12(b)(6). 

IV 

The district court did not disclose the basis for the 

dismissal of Higgins’s claim that the ADTC employees 

retaliated against him because he exercised his federal 

constitutional right to seek access to the courts for an 

adjudication of his claims that he was deprived of his rights 

under S 5301(a) and the Due Process Clause. A person may 

state an independent cause of action for retaliation for the 

exercise of his or her right of access to the courts, 

regardless of whether the allegations of a deprivation of 

federal statutory or constitutional rights are meritorious. 

See White v. Napoleon, 897 F.2d 103, 111-12 (3d Cir. 1990) 

("Retaliation for the exercise of constitutionally protected 

rights is itself a violation of rights secured by the 

Constitution actionable under section 1983."). The district 

court erred in dismissing Higgins’s claim for retaliation for 

the exercise of his rights under federal law. 
Conclusion 

Higgins’s complaint alleged sufficient facts to support a 

S 1983 claim that he was deprived of his rights under 

S 5301(a) and the Due Process Clause of the Fourteenth 

Amendment. Accordingly, we VACATE the dismissal of this 

action. Upon REMAND, the district court is directed to 

_________________________________________________________________ 

deprivation of his property interest in the $1,000. See Carey v. Piphus, 

435 U.S. 247, 266 (1978) (stating that "[b]ecause the right to procedural 

due process is ‘absolute’ in the sense that it does not depend upon the 

merits of a claimant’s substantive assertions, and because of the 

importance to organized society that procedural due process be 

observed, we believe that the denial of procedural due process should be 

actionable for nominal damages without proof of actual injury" (citations 

omitted)). 

 17 

 

permit Higgins to amend his complaint so as to attempt to 

allege a S 1983 retaliation claim for the exercise of his 

federal rights. 

Costs are awarded to Higgins. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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