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D ock e t 99-3656

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. e du/thir dc ir c uit_2000/95Filed 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 AppelleesOPINION 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 cou nty 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. Tillma n ultimately accumulated a debt exceeding $4,000.00, for

which his account was turned over to a collection a gency after his release from prison.

In a pro se complaint filed against the prison and its warden, Tillman alleged that the levying and collec tion of

these sums violated 42 U.S.C. S 1983. The defendant s moved for dismissal, or in the alternative, for sum mary judgment, but the Magistrate Judge recommended deni al of the motion on the basis of an analysis of the Eight h and

Fourteenth Amendments. After the defendants filed supplemental affidavits, the District Court granted summary judgment and dismissed the complaint. We wi ll

affirm.

I. Facts

The underlying facts are, as Tillman concedes, "essentially undisputed." After committing unspecif ied parole violations, Tillman was incarcerated in the Lebanon County Correctional Facility in Pennsylvania betwee n January 30, 1997 and August 21, 1997. Parole was ag ain granted, but similar violations led to his recommit ment to the same facility on October 24, 1997.

Upon recommitment, prison authorities confiscated h alf of the money in Tillman's wallet and subsequently t ook half

of all funds sent on his behalf. These actions were taken pursuant to the facility's Cost Recovery Program. U nder this program, prisoners are assessed a daily charge of $10.00 towards their housing expenses. Any money

2generated through the program goes into the county' s

general fund, which pays the facility's operating c osts.

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, cloth ing, or other services. Neither can it result in extended p rison 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 a ny 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 u pon a prisoner's release from jail, any funds remaining i n 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 deb t remains unpaid after release, the account may be tu rned over to a collection agency. Warden Robert L. Raige r 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 bal ance is also kept on the prison's records, so if the ex- prisoner is later reincarcerated, the prior debt remains in ful l force while new debt begins to accumulate.

Because Tillman had not paid off the assessments fr om his previous term of incarceration, he had an outst anding balance upon recommitment. Consequently, as noted, authorities confiscated half the money in his posse ssion

and took half of all funds sent on his behalf to sa tisfy the debt. The confiscated funds still did not satisfy t he 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 Pro gram. "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 prisoner s

3participating in the Work Release Program because t hey are

already required to pay a minimum of $70.00 per wee k

towards their room and board.

Authorities mistakenly failed to assess the fees ag ainst one inmate, Anthony Ashford, who had previously bee n exempt as a work release prisoner. After Ashford wa s 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 acc ount.

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 prog ram and a copy of the program itself were posted throug hout 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 hand book detailing the prison's grievance program, which all owed prisoners to "state any grievance concerning any ma tter you feel is unjust . . . ." In June of 1997, during the plaintiff 's initial term of parole violation incar ceration, the handbook was updated to include a description of th e Cost Recovery Program, as well as an expanded grievance program that allowed for direct appeal to the warde n. The plaintiff was given a copy of the updated handbook, and upon recommitment in October of 1997, was again pro vided 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 pla intiff here was a state prisoner. Although the plaintiff 's pro se complaint alleged that the state reimbursed the cou nty prison for his costs of incarceration, an affidavit filed by Lebanon County Commissioner William G. Carpenter st ates that no such repayment is given to the county facil ity for prisoners who are committed for state parole violat ions.

4While still incarcerated,1 the plaintiff filed a pr o se

complaint in the United States District Court for t he Middle District of Pennsylvania on July 22, 1998. He named as defendants Warden Raiger and the Lebanon County Correctional Facility. In the complaint, the plaint iff charged violations of 42 U.S.C. S 1983 arising from the dai ly 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 li ve better." He complained that "some" inmates were not charged and that prisoner Anthony Ashford was neith er charged nor had any money taken from him. Tillman a lso made cursory references to assessments for medical

treatment and to "false incarceration."

After the plaintiff was granted permission to proce ed in forma pauperis, the defendants moved for dismissal under Fed. R. Civ. P. 12(b)(6), or in the alternative, fo r summary judgment under Rule 56(c). Counsel subsequently ent ered an appearance on the plaintiff 's behalf andfiled a

response.

A Magistrate Judge treated the defendants' motion a s one for summary judgment and in a memorandum opinionfil ed April 9, 1999, recommended that the motion be denie d. Although Tillman did not specify any particular leg al 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, altho ugh prisoners could avoid medical fees by declining to seek treatment, they could not avoid residing in an inst itution.

That fact and the amount of debt created a triable question of fact regarding cruel and unusual punishment. Sec ond, it

could not be shown as a matter of law that the fees were not excessive fines in violation of the Eighth Amen dment. Third, the defendants failed to demonstrate what du e process, if any, was provided to the plaintiff. Fin ally, the

Court held that it lacked sufficient information to conclude that there was no material question of fact regardi ng any equal protection claim.

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1. The plaintiff was subsequently released on July 25, 1998 because of the expiration of the maximum underlying sentence.

5The defendants objected to the Magistrate Judge's r eport

and filed supplemental affidavits from Warden Raige r and Commissioner Carpenter. They detailed the notice gi ven to prisoners, the availability of grievance procedures , and asserted that the prison was not reimbursed by the state for maintenance expenses. The defendants provided c opies of relevant sections from the superceded and update d prisoner handbooks. They also stated that the Cost Recovery Program was not intended to punish, but ra ther to rehabilitate by teaching inmates financial respo nsibility by sharing in the costs of their food, housing, clo thes, 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 cru el 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 f or medical treatment was not prohibited by the Constit ution, so long as they were provided with care even when t hey could not afford to pay the fees.

As in Reynolds, held the District Court, Tillman wa s 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 i f they were fines, they were not excessive because the cos ts of incarceration by definition cannot be disproportion ate to the offense. Third, the due process claim was rejec ted 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, respe ctively, by being provided with labor opportunities and by b eing

6required to make payments of at least $70.00 per we ek. 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, ac cepting the non-movant's allegations as true, and drawing inferences in the light most favorable to him. Meri tcare Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 223 (3d Cir. 1999). The grant of summary judgment must be affirm ed if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a mat ter 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 accoun t.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 sim ilar to the dispute before us, a state supreme court upheld daily

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2. Some statutes allow for deductions from a prison er's wages. See, e.g., Ariz. Rev. Stat. Ann. S 41-1622, stat. note; Iowa C ode Ann. S 904.701(2); Minn. Stat. Ann. S 243.23(2); Mo. Ann. Stat.S 217.4 35(2); Neb. Rev. Stat. Ann. S 83-184(b)(3). Other statutes provide for gen eral 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 An n. 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. 1 984); 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-co nstitutional 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. Jack son, 601 N.W.2d 354, 356-57 (Iowa 1999); State Treasurer v. Gardner , 58 3 N.W.2d 687, 690 (Mich. 1998); cf. Auge v. New Jersey Dep't of Corre ctions, ___ 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 cos ts" of food, clothing, medical care, and other necessities).

7assessments 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). F ederal law acknowledges that a prisoner's wages might be s ubject 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. 1 992).

In reviewing prison regulations, we ask whether the regulation is reasonably related to a legitimate pe nological 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 beh avior. 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 19 83 from the alleged "swindling [of] state prisoner[s]" under the Cost Recovery Program.5 The parties now focus on th e

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4. Under Turner, we look to:

(1) the rational relationship between the re gulati on and the governmental interest put forward to justify it;

(2) the existence of alternative means to ex ercise the asserted right;

(3) the impact on prison resources of accomm odatin 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 pl aintiff was subjected

to false incarceration and that he was charged fees to see a doctor. The plaintiff notes that he has a separate pending acti on 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 conte xt of discussing the room and board fees -- makes a number of somewhat j umbled factual8Cruel and Unusual Punishments and Excessive Fines

Clauses of the Eighth Amendment, and the Due Proces s 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 unnece ssary and wanton infliction of pain, or are grossly

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allegations about medical care in the argument port ion of his brief. He admits that no such facts were put before the Distr ict 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 plainti ff 's situation,

instead appearing to relate to general matters that "[c]oun sel is told." Id.

The defendants properly complain that we should not consider these facts, which are of dubious relevance to this appea l in any case. Although we normally hold pro se complaints to a "l ess stringent" standard than formal pleadings drafted by lawyers, Micklus v. Carlson, 632 F.2d 227, 236 (3d Cir. 1980), the plaintiff her e has been represented by counsel since the defendants filed their disposi tive motions. The plaintiff has not filed any affidavits, has not put forth cognizable argument, and in this context, does not cite to rel evant 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 a ny particular theory of recovery, the Magistrate Judge gave it a generous r eading and focused his analysis on the Eighth and Fourteenth Amendment s. The plaintiff, through counsel, now points to those provisions in his statement of the issues presented for review. Although we address th ose 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 an d unusual punishments inflicted."9disproportionate to the severity of the crime." Rho des v.

Chapman, 452 U.S. 337, 346 (1981) (citations and in ternal quotes omitted).

Prison conditions may amount to cruel and unusual punishment if they cause "unquestioned and serious deprivations of basic human needs . . . . [that] de prive

inmates of the minimal civilized measure of life's necessities." Id. at 347. Accordingly, when the gov ernment takes a person into custody against his or her will , it assumes responsibility for satisfying basic human n eeds 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 nee ds, a plaintiff must show a sufficiently serious object ive deprivation, and that a prison official subjectivel y acted with a sufficiently culpable state of mind, i.e., d eliberate indifference. Nami v. Fauver, 82 F.3d 63, 67 (3d Ci r. 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 cos t of treating a person shot by a police officer. The Cou rt 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 ho spital. Id. at 245. In so holding, the Court noted that "[n]oth ing we say here affects any right a hospital or government al entity may have to recover from a detainee the cost of the medical services provided to him." Id. at 245 n.7. The Cour t thus hinted that so long as treatment was provided, the cost of the services might be recovered from the detainee w ho

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 require d to obtain their own financing to obtain elective abort ions. Looking to the deliberate indifference standard, we held that regardless of an inmate's inability to pay, th e government was obliged to provide medical services for those inmates in its custody. Id. at 350. In so hol ding,

10however, 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 35 1. We

thus assumed that where an inmate could secure her own funding, it would not be unreasonable to make her p ay her

way.

These cases demonstrate that both the Supreme Court and our Court anticipated cases where the state wou ld be responsible for ensuring the provision of care, but might seek reimbursement from the party receiving the ben efit of the care. We squarely faced that situation in Reyno lds v. Wagner, 128 F.3d 166 (3d Cir. 1997), where prisoner s were required to pay fees in order to obtain medical tre atment. The program's purpose was to instill financial resp onsibility 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 o ther treatments were exempt from the fee requirement.

The facts of that case are strikingly similar to th e appeal presently before us. In Reynolds, no inmate was ref used treatment because of a lack of funds. Instead, the prisoner's account was debited, and if the availabl e funds were insufficient, a negative balance would be crea ted. Half of all incoming funds could be used to satisfy the negative balance. Upon departure from the facility, the unpa id 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 imposin g a fee was per se unconstitutional. The plaintiffs wer e not denied medical care; further, "[i]f a prisoner is a ble to pay for medical care, requiring such payment is not del iberate

indifference to serious medical needs." Id. at 174 (internal quotes eliminated). In the outside world, the plain tiffs would have to pay for medical care. Id. Further, th e proffered purposes -- teaching fiscal responsibilit y and deterring sick-call abuse -- were obviously reasona bly related to legitimate penological interests. Id. a t 175.

In light of the caselaw, we conclude that Tillman h as not shown that he has been subjected to cruel and unusu al

11punishment. Undisputed evidence shows that the Cost

Recovery Program is intended to teach fiscal respon sibility to inmates. The plaintiff, who has since been relea sed, is now expected by society to pay his own room and boa rd. Teaching him such a skill while in prison amply sat isfies Turner's requirement that the program be reasonably related to a legitimate penological interest. Turne r, 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, no r 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, o r other necessities, regardless of his failure to pay the f ees. See Rhodes, 452 U.S. at 348 (double celling did not dep rive prisoners of food, care, or sanitation, increase vi olence or create other intolerable conditions). This is simpl y not a case like Lanzaro, where necessary services were de nied 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 blan kets[,] etc." He does not, however, identify how the program caus ed him to be denied his own "basic human needs." Cf. City of Revere, 463 U.S. at 245 (so long as the necessary s ervices are provided, "the Constitution does not dictate" t he 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 conclu ded that this distinction is without legal import. The funda mental question before us is whether basic human needs wer e denied to the plaintiff because of the defendants' deliberate indifference. In both Reynolds and the present case , the

12defendants did not directly deny serious necessitie s to the

prisoner plaintiffs; and in neither case did the pl aintiffs present evidence to show that, due to the defendant s' deliberate indifference, they were faced with a Hob son's choice between paying fees and purchasing necessiti es. Reynolds, 128 F.3d at 178.

We also reject the plaintiff 's complaint that he i s now burdened with post-incarceration debt. A similar ar gument 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 Unu sual

Punishments Clause.8

2. Excessive Fines

By its plain language, the Excessive Fines Clause o f the Eighth Amendment is violated only if the disputed f ees are both "fines" and "excessive." See United States v. Bajakajian, 118 S. Ct. 2028, 2033, 2036 (1998). 9 W e

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8. The Magistrate Judge was concerned that the amou nt of debt accumulated raised a factual dispute as to whether a cruel and unusual punishment was shown. The only pertinent question i n the present context, however, is whether the plaintiff 's basic human needs were met. Although a potentially insurmountable debt might im plicate 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 cr ime," Estelle, 429 U.S. at 103 n.7, is a matter more appropriately consider ed within the auspices of the Excessive Fines Clause, as discusse d in the next

subsection.

9. The Excessive Fines Clause of the Eighth Amendme nt, once virtually ignored, has been "rescued from obscurity" in recen t 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 Am endment was directly based on Art. I, S 9 of the Virginia Declaration of Rights, which in turn

13conclude that the Cost Recovery Program does not am ount

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 balan ce. The daily fees do not vary with the gravity of the offe nse and

can neither be increased nor waived. Rather than be ing 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 beca use of an apparent nagging concern over whether the paymen ts are "in part, punitive." If the assessments and con fiscations under the Cost Recovery Program "can only be explai ned as serving in part to punish," they are "punishment" f or purposes of the Excessive Fines Clause, even if the y may

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was taken verbatim from the English Bill of Rights. Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 49 2 U.S. 257, 266 (1989) (quoting Solem v. Helm, 463 U.S. 277, 285 n.10 (198 3)). The Eighth Amendment received scant debate in the First Congre ss, 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 provisi on similar to the Excessive Fines Clause. Id. at 264 & n.5 (op. of th e Court).

10. In his pro se complaint, Tillman alleges that t he county prison is reimbursed by the state for his costs of room and b oard, thus suggesting that the prison profited from the fees that he was charged. The defendants subsequently asserted in an affidavit th at 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 part y may not rest upon mere allegations in his pleadings, and any inconsis tency does not give rise to a disputed question of material fact. Fed. R. Civ. P. 56(e).

14also be understood to serve remedial purposes. Aust in v.

United States, 509 U.S. 602, 610, 620-21 (1993). Th e Court also correctly noted, however, that the undisputed record indicates that the program was imposed for rehabili tative and not punitive purposes.

We need not reach that issue. Even assuming that th ere is a factual question as to whether the Cost Recove ry Program amounts to a fine, we hold that it is not e xcessive. Under the principle of "proportionality[, t]he amou nt of the forfeiture must bear some relationship to the gravi ty of the offense that it is designed to punish." Bajakajian, 118 S. Ct. at 2036. The plaintiff 's underlying offenses i ncluded a conviction for possession with intent to deliver approximately 29 grams of cocaine in violation of 3 5 P.S. S 780-113(a)(30), which allows for a fine not to ex ceed $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 off ense." 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 r esult we would reach where the offense was significantly les s serious, or where the daily fees or total debt were significantly higher. Cf. Ilkanic, 705 So. 2d at 13 72-73 (rejecting due process and equal protection challen ges to statute that provided for assessment of $50.00 per day for "damages and losses for incarceration costs and oth er correctional costs"). Under the circumstances prese ntly 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 inte rest must fall within the scope of "life, liberty, or pr operty." Hewitt v. Helms, 459 U.S. 460, 466 (1983). The defe ndants

15properly 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 erro neous deprivation. Id.; see also Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Due process " `is flexible and cal ls for such procedural protections as the particular situation demands' " in order to "minimiz[e] the risk of erro r."

Greenholtz v. Inmates of the Nebraska Penal and Cor r. Complex, 442 U.S. 1, 12-13 (1979) (quoting Morrisse y v. Brewer, 408 U.S. 471, 481 (1972)). "The amount of n otice due depends on the context." Reynolds, 128 F.3d at 179 (citing Gilbert v. Homar, 117 S. Ct. 1807, 1812 (19 97)).

In some cases, takings of property by the State req uire predeprivation notice and a hearing. Parratt v. Tay lor, 451 U.S. 527, 538 (1981), overruled on other gds. , Dan iels v. Williams, 474 U.S. 327 (1986).11 But where the Stat e must take quick action, or where it is impractical to pr ovide meaningful predeprivation process, due process will be satisfied by a meaningful postdeprivation remedy. I d. at 539. "In such cases, the normal predeprivation noti ce and opportunity to be heard is pretermitted if the Stat e provides a postdeprivation remedy." Id. at 538."Parratt is n ot an exception to the Mathews balancing test, but rather an application of that test to the unusual case in whi ch one of the variables in the Mathews equation -- the value of predeprivation safeguards -- is negligible in preve nting the kind of deprivation at issue." Zinermon v. Burch, 4 94 U.S. 113, 129 (1990).12

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11. Daniels overruled Parratt only to the extent th at the earlier case

held that a mere lack of due care may deprive an individ ual of "life, liberty, or property under the Fourteenth Amendment." Daniel s, 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 en titlement 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.

16It is impractical to expect the prison to provide

predeprivation proceedings under these circumstance s. As the takings and assessments pass substantive constitutional muster,13 we only need ask whether t he attendant procedure is also constitutionally adequa te. It is. The assessments and takings pursuant to the program involve routine matters of accounting, with a low r isk of

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Trench, 787 F.2d 167, 171 (3d Cir. 1986). In such a case, a predeprivation hearing is still required. Brown , 7 87 F.2d at 171. However, the Supreme Court has since noted in an ex parte forfeiture case, i.e., one that involves established state pro cedures, that in "extraordinary situations," predeprivation notice a nd hearings are unnecessary. United States v. James Daniel Good Rea l 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. Th us, if the available postdeprivation procedure is adequate, then that is all the process to which the plaintiff is due under these circumstance s.

13. As noted in the previous section, the Cost Reco very Program does not violate the Eighth Amendment. Also, we do not see a substantive due process violation. Substantive due process rights"a re at least as great as the Eighth Amendment protections available to a con victed prisoner." City of Revere, 463 U.S. at 244. We need only note that we have considered and rejected the plaintiff 's Eighth Ame ndment arguments. Further, we considered a substantive due process cl aim arising under almost identical circumstances in Reynolds, 128 F.3 d 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 p ay the costs of their imprisonment. Our decision in Spiropoulos, however, was premised on a lack of authority in the Sentencing Reform Act to a ssess fines to recoup the costs of incarceration. Id. at 165. Further, th e funds collected under U.S.S.G. S 5E1.2(i) were not put towards prison cos ts, but instead placed into the Crime Victims Fund. The present case diffe rs materially from Spiropoulos. Authorization for the Cost Recovery Pr ogram was specifically granted by the Lebanon County Prison Board. In addi tion, any funds raised under the Cost Recovery Program are put into the county's general fund, which in turn finances the county pri son. In sum, any substantive theories proffered by the plaintiff fai l.

17error. To the extent that mistakes such as erroneou s

assessments or incorrect takings might occur, they may be corrected through the prison's grievance program wi thout any undue burden on a prisoners' rights. On the oth er hand, to require predeprivation proceedings for wha t are essentially ministerial matters would significantly increase transaction costs and essentially frustrate an impo rtant purpose of the program, which is to reduce the coun ty'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. Whe n the handbook was updated to include the Cost Recovery Program and an expanded grievance procedure, the pl aintiff was given a copy of that as well. He was given an a dditional copy of the handbook upon reconfinement in October of 1997. The grievance program allowed prisoners to co mplain about "any" matter that is "unjust," and as updated , also provided for direct appeal to the warden.

In sum, the plaintiff had an adequate postdeprivati on remedy in the grievance program. In Reynolds, we he ld that the existence of a similar grievance program provid ed a sufficient remedy. 128 F.3d at 181. In sum, the pla intiff had an adequate postdeprivation remedy, thereby sat isfying 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 even ts by making payments as low as $5.00 a week on his debt.

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14. The plaintiff does not argue that advance notic e of the program was required. In any case, because an adequate postdepr ivation remedy exists, no advance notice was necessary. Even if ad vance notice were necessary, it was satisfied under the facts of this case. The plaintiff 's property right in his inmate account did not vest u ntil he was incarcerated for parole violations. At that time, h e was given notice of

the existence of the program and the grievance procedur e. Due process does not require more.

18The plaintiff also complains that the prison lacked

authority to implement the Cost Recovery Program, b ut we find no problem in that arena as well. Although we have not uncovered a statute explicitly providing for th e deductions at issue here, the Cost Recovery Program was duly promulgated, not by the state, but by the coun ty prison board, which has "exclusive[ ]" authority re garding "the government and management" of the facility. 61 P.S. S 408(a)(1).15 Other courts have not seen barriers to the

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15. Because Lebanon County is a county of thefifth class, its prison board is "exclusively vested" with "the safe-keepin g, discipline, and employment of prisoners, and the government and man agement 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 maint enance of prisoners, the repairs and improvement of said prison, shall b e paid from the county treasury by warrants drawn, in the mode now prescribed by law, on the regular appropriation for the purpose." Wefi rst note that any funds obtained through the Cost Recovery Program ar e placed into the county's general fund, out of which all prison expe nses -- 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 mec hanics of accounting. Reading section 410 as a whole makes it clear that its focus is on the proper procedures for payments, accountin g, and contracting. See id. ("no warrant shall be certified by the cont roller for any expense connected with the prison unless on vouchers approv ed by a majority of said board and endorsed by the president and secret ary thereof, and all contracts involving an expenditure of funds from th e county treasury shall be made in accordance with [the law]").

More fundamentally, section 410 is utterly silent r egarding the permissible sources of funds that go into the treas ury. 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 fr om those who receive the benefits of those expenditures. To conclude oth erwise would be contrary to Reynolds, where we upheld similar priso ner assessments. In sum, because sections 408 and 409 expressly grant b road and exclusive authority to the prison board, we reject the plaint iff 's suggestion that the board lacked the authority to promulgate the Co st Recovery Program.

19promulgation of such programs by prisons and prison

officials, and neither do we. See Reynolds, 128 F.3 d 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 Prot ection Clause. Under that provision, persons who are simil arly situated should be treated in the same manner. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 43 2, 439 (1985). Because the distinctions at issue here do n ot implicate a suspect or quasi-suspect class, the sta te 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 des igned to teach fiscal responsibility to inmates. Another conceivable purpose is to reimburse the state for t he expenses of incarceration. Malmed v. Thornburgh , 6 21 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 doe s not present an argument to the contrary. Further, the p urposes of teaching fiscal responsibility and partially rec ouping the costs of incarceration are surely rationally relate d to requiring inmates to pay for their share of mainten ance. The plaintiff would have to make similar expenditur es on the outside, and making him do so under the Cost Re covery Program teaches him to assume real-world responsibi lities.

We also note that although "trusty" inmates are not charged for room and board, they "pay" their housin g costs by providing labor to the prison. Similarly, work r elease 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 discrimina tion, there is no equal protection violation. Mastrian , 725 F.2d at

1166.

The plaintiff also complains that inmate Anthony As hford was not charged any fees. Undisputed evidence shows that Ashford had been removed from the Work Release Prog ram,

20and prison authorities mistakenly failed to begin c harging

him fees under the Cost Recovery Program. Upon bein g alerted to this oversight, Ashford's account was ba ckcharged for all the relevant fees. As such, the pla intiff cannot point to any discrimination, and therefore t o any equal protection violation.

III. Conclusion

The judgment of the District Court will be affirmed

.

21RENDELL, Circuit Judge, concurring in part and diss enting

in part:

In his pro se complaint, Tillman, a state prisoner, alleges that the Lebanon County prison took half of the mon ey in his wallet, as well as half of the money orders sen t to him, to pay the balance of a daily $10 charge incurred d uring 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 o r contracts to have them take my money." His counsele d brief on appeal similarly attacks the prison's basi s for taking his money, stating that "no court, nor any s tatute, authorizes the imposition of the arbitrary costs fo rced on appellant against his will." Brief for Appellant at 6. According to the affidavit of the former Chairman o f the Lebanon County Prison Board, the Prison Board adopt ed the Cost Recovery Program "as a rehabilitative meas ure, designed to teach sentenced inmates financial responsibility, by requiring them to contribute to the expenses necessary to house, feed, clothe and prote ct them while incarcerated." App. 92.

The majority concludes that the prison's internal grievance procedure provides prisoners with the pos tdeprivation opportunity for a hearing that due proc ess requires. I agree with the majority's holding, as f ar 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 Leb anon County Prison Board to impose this consequence upon a person convicted of a state crime? Can it, on its o wn, decide to deprive state prisoners unfortunate enoug h to be housed there of $10 per day, to be paid to the coun ty's coffers, under the guise of rehabilitating them and teaching them financial responsibility? Although the imposit ion of this compensation scheme is obviously not the same as restitution, it strikes me as a similar type of sen tencing consequence that should emanate from the state in t he first

instance.1

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1. In Pennsylvania, "an order of restitution must b e based on statutory authority." In the Interest of M.W., 725 A.2d 729, 731 (Pa. 1999) (citing

22As the majority notes, other states have passed

legislation authorizing prisons to take inmates' fu nds in situations such as this. Interestingly, the Pennsyl vania 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 sugg est, further, that the majority's reasoning, contained i n a footnote, that a state law establishing boards of i nspectors to oversee prison operations provides the requisite authority to impose this charge as a consequence of incarcera tion is less than persuasive. I also do not believe that th e case law cited by the majority provides a satisfactory parad igm for this type of mandatory charge.3

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Commonwealth v. Harner, 617 A.2d 702, 704 (Pa. 1992 ) ("It is generally agreed that restitution is a creature of statute an d, without express legislative direction, a court is powerless to dire ct a defendant to make restitution as part of a sentence.")). In the feder al context, we recently reiterated the "firmly established principle that f ederal courts may not order restitution in the absence of statutory autho rization." United

States v. Akande, 200 F.3d 136, 138 (3d Cir. 1999). If the rehabilitative measure Tillman challenges is not a punitive one, w hat 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 shal l establish rates and qualifications, authorize the warden, sherif f or other person in charge of the jail to collect a reasonable a mount from prisoners incarcerated only on weekends or other short periods each week.

Pa. Stat. Ann. tit. 61 S 2146 (West 1999). See Comm onwealth v. Cassell, 12 Pa. D. & C. 4th 265 (York County 1991) (concluding that section 2146 authorized short-term fee to be impose d 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), no r Mastrian v. Schoen, 725 F.2d 1164 (8th Cir. 1984) (affirming gr ant of summary judgment in favor of state correction officials on a complaint alleging an

23Tillman 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

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equal protection violation stemming from a now-disc ontinued 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 benefic ial medical services, Reynolds, 128 F.3d at 180, and it is clear from the exceptions to the fee requirement (e.g., initial intake, emergency, psych iatric services,

chronic illness screening) that choice was involved to avai l oneself of medical services for which a fee was charged, which is not the case here.

24