Holloway v. Arkansas General Assembly

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

STEVEN C. HAYES, ADC # 657050 PLAINTIFF

v. Master Case: 4:21-cv-00347-LPR

Member Case: 4:21-cv-00347-LPR

SOLOMON GRAVES, in his official

capacity as Secretary of the Department

of Corrections; and DEXTER PAYNE, in

his official capacity as Director of the

Arkansas Division of Correction DEFENDANTS

ANTHONY LAMAR, ADC # 120479 PLAINTIFF

v. Master Case: 4:21-cv-00347-LPR

Member Case: 4:21-cv-00529-LPR

ASA HUTCHINSON, et al. DEFENDANTS

WINSTON HOLLOWAY, ADC # 67507 PLAINTIFF

v. Master Case: 4:21-cv-00347-LPR

Member Case: 4:21-cv-00495-LPR

ARKANSAS GENERAL ASSEMBLY, et DEFENDANTS

al.

ORDER

This case is about the rights of prisoners to receive and keep COVID-19 stimulus payments

sent to them by the federal government. Plaintiffs are inmates in the Arkansas state prison system

who have had their federal stimulus payments confiscated (or will have their stimulus payments

confiscated in the near future) by state prison officials.1 The confiscations are being made pursuant

1 The Court wishes to express its gratitude to Mr. John Tull and his colleagues at Quattlebaum, Grooms & Tull PLLC.

They graciously accepted the Court’s appointment as Plaintiffs’ counsel and have conducted themselves in accord

with the highest ideals of our profession during this litigation.

to a law passed by the Arkansas General Assembly and signed by the Governor.2 On September

3, 2021, the Court granted preliminary injunctive relief that significantly limited the circumstances

in which state prison officials could take and redirect the stimulus funds sent to prisoners.3

Pending before the Court is Plaintiffs’ Motion for Summary Judgment.4 Plaintiffs seek a

permanent injunction that: (1) prohibits the confiscation of stimulus payments that have not yet

arrived; and (2) requires equitable restitution of previously confiscated stimulus payments and

interest on such funds.5 Defendants contest certain portions of Plaintiffs’ Motion but basically

concede the propriety of an injunction that makes permanent the relief that the Court preliminarily

granted on September 3, 2021.6

For the reasons below, the Court GRANTS in part and DENIES in part Plaintiffs’ Motion

for Summary Judgment. As part of today’s Order, the Court issues a permanent injunction. In

summary, that permanent injunction allows Defendants to continue using any federal relief or

stimulus funds received by a prisoner to pay off that prisoner’s existing court fines, fees, costs, or

restitution. Any federal relief or stimulus funds remaining after such obligations are satisfied must

be returned to the prisoner.

2 Ark. Code Ann. § 12-29-120.

3 Prelim. Inj. Order (Doc. 79).

4 Pls.’ Mot. for Summ. J. (Doc. 330). There are many cases that have been brought in this Court by prisoners regarding

Act 1110. The legal claims in the cases substantially overlap. The Court takes judicial notice of the filings in all of

the consolidated cases. See Fed. R. Evid. 201. The Court may, in the instant Order, refer to filings in some of the

other consolidated cases.

5 Pls.’ Mot. for Summ. J. (Doc. 330); Plaintiff Steven Hayes’s Third Am. Compl. (Doc. 158) at 16; Plaintiff Anthony

Lamar’s Am. Compl., Lamar v. Hutchinson, 4:21-cv-00529-LPR, (Doc. 11) at 14 [hereinafter Lamar Case Docket];

Plaintiff Winston Holloway’s Compl., Holloway v. Ark. Gen. Assembly, 4:21-cv-00495-LPR (Doc. 2) at 9.

6 Defs.’ Resp. to Pls.’ Mot. for Summ. J. (Doc. 344) at 2 (Defendants renewing their previous request that the Court

make its preliminary injunction permanent); see also Defs.’ Mot. for Permanent Inj. (Doc. 151) ¶¶ 10–13 (asking that

the Court make its preliminary injunction permanent); Br. in Supp. of Defs.’ Mot. for Permanent Inj. (Doc. 152) at 1.

I. BACKGROUND7

The federal government enacted three major laws in response to the COVID-19 pandemic.

Each of these stimulus laws authorized direct payments to almost every American adult with an

income below $75,000. The first stimulus statute, the Coronavirus Aid, Relief, and Economic

Security Act (“the CARES Act”), was passed on March 27, 2020.8 The CARES Act provided for

a $1,200 stimulus payment.9 The second stimulus statute, the Consolidated Appropriations Act

(“the CAA”), was passed on December 27, 2020.10 The CAA contained a $600 stimulus

payment.11 The third stimulus statute, the American Rescue Plan Act (“the ARPA”), was passed

on March 11, 2021.12 The ARPA paid out $1,400.13

Congress made only very narrow exceptions as to who qualified to receive the stimulus

payments. Arkansas state prisoners qualified to receive the stimulus payments. However, the

State of Arkansas did not consider that a wise use of federal taxpayer funds. On May 3, 2021,

seven-and-a-half weeks after the ARPA was passed, Arkansas enacted a law (“Act 1110”) that

directs state prison officials to confiscate any “federal relief or stimulus funds” received by state

prisoners “on or after October 13, 2020 . . . .”14 If the state prison officials are aware that a prisoner

owes court fines, fees, costs, or restitution, the confiscated stimulus funds must first be used to pay

7 This background section contains only undisputed facts. As noted in Part II of this Order, there are no factual disputes

between the parties.

8 Pub. L. 116-136, 134 Stat. 281 (2020).

9 26 U.S.C. § 6428(a).

10 Pub. L. 116-260, 134 Stat. 1182 (2020).

11 26 U.S.C. § 6428A(a).

12 Pub. L. 117-2, 135 Stat. 4 (2021).

13 26 U.S.C. § 6428B(b).

14 Ark. Code. Ann. § 12-29-120(a), (e).

those obligations.15 But if the state prison officials are not aware of any such debts, or if the

prisoner does not owe any such debts, then the confiscated stimulus funds are “distributed in equal

parts to . . . [a]n inmate welfare fund . . . and [t]he Division of Correction Inmate Care and Custody

Fund Account.”16 An “inmate welfare fund” is “a special fund to be administered and used . . .

for the general benefit of the inmates . . . .”17 The Division of Correction Inmate Care and Custody

Fund Account is essentially the Arkansas state prison system’s general operating account.18

On May 10, 2021, one week after passage of Act 1110, Defendants began enforcing the

law.19 Any stimulus check that arrived after that date was “sequestered into a fiduciary banking

account . . . .”20 Numerous prisoners challenged Act 1110 on various constitutional and statutory

grounds. The Court consolidated those cases and designated the challenges brought by Plaintiffs

Steven Hayes, Anthony Lamar, and Winston Holloway as “appropriate and representative test

cases” for the purpose of efficiently moving through the preliminary-injunction and motion-to-

15 Id. § 12-29-120(a)–(b).

16 Id. § 12-29-120(c)–(d). Act 1110 does not expressly say what happens to stimulus funds left over after paying court

fines, fees, costs, or restitution. The statute says what must happen if an inmate has such existing debts: The stimulus

funds must first be used to pay those debts before the inmate may use the stimulus funds “for any other purpose.” Id.

§ 12-29-120(a). The statute also says what should happen in the case where an inmate has no known debts: Defendants

must divert the stimulus funds to an inmate welfare fund and the Division of Correction Inmate Care and Custody

Fund Account. Id. § 12-29-120(d). However, there is a third scenario that the statute does not explicitly discuss:

When there are known debts, those debts are paid off, and some portion of the federal stimulus funds remain.

Defendants have taken the position that, under the statute, any leftover stimulus funds also go to an inmate welfare

fund and the Inmate Care and Custody Fund Account. See Def.’s Consolidated Br. in Opp’n to Mot. for Temporary

Restraining Order and Prelim. Inj. and in Supp. of Mot. to Dismiss (Doc. 16) at 5. Defendants’ interpretation of the

statute seems pretty reasonable. In any event, because Plaintiffs’ claims are largely based on Defendants’ actions

under Act 1110 rather than Act 1110 itself, this discrepancy is insignificant.

17 Ark. Code Ann. § 12-29-107.

18 Ark. Code Ann. § 19-5-302(1)(A) (“The Division of Correction Inmate Care and Custody Fund Account shall be

used for the maintenance, operation, and improvement of the Division of Correction in carrying out those powers,

functions, and duties relating to nonfarm or crop-producing programs as established by law.”).

19 See Ex. 1 (First Decl. of Jeffrey Jerry) to Def.’s Consolidated Br. in Opp’n to Mot. for Temporary Restraining Order

and Prelim. Inj. and in Supp. of Mot. to Dismiss (Doc. 16-1) ¶¶ 8–9. Jeffrey Jerry, the Assistant Chief Financial

Officer of the Arkansas Division of Correction has declared under penalty of perjury that any stimulus funds received

by inmates before May 10, 2021, “were placed into the inmate’s checking account . . . and the [Defendants] did not

confiscate any of the funds.” Id. ¶¶ 2, 8.

20 See id. ¶ 7; Ex. 1 (Second Decl. of Jefferey Jerry) to Br. in Supp. of Pls.’ Mot. for Summ. J. (Doc. 331-1) ¶ 10.

dismiss phases.21 Subsequently, the Court determined that these cases were appropriate test cases

to advance to the summary judgment stage.22

Plaintiff Steven Hayes’s $1,400 stimulus payment under the ARPA was confiscated by

state prison officials.23 Plaintiff Anthony Lamar’s $1,400 stimulus payment under ARPA was

likewise confiscated.24 Mr. Lamar is also awaiting his $1,200 stimulus payment under the CARES

Act and his $600 stimulus payment under the CAA.25 Plaintiff Winston Holloway’s $1,400

stimulus payment under the ARPA was confiscated by prison officials.26

21 See Consolidation Order (Doc. 36) at 6. At the time of this consolidation, Plaintiff Anthony Lamar was proceeding

pro se and had filed a motion for a preliminary injunction. Plaintiff Winston Holloway was proceeding pro se, and

Defendants had filed a motion to dismiss Mr. Holloway’s complaint. Plaintiff Steven Hayes had already been

appointed counsel (Mr. Tull) by the Court, and Defendants had filed a motion to dismiss Mr. Hayes’s operative

complaint. Shortly after consolidation, the Court held a joint hearing on Mr. Lamar’s motion for a preliminary

injunction and Defendants’ motions to dismiss Mr. Holloway’s and Mr. Hayes’s complaints. Subsequently, the Court

appointed Mr. Tull as counsel for Mr. Lamar and Mr. Holloway. See Order (Doc. 253).

While the Preliminary Injunction Order (Doc. 79) technically only relates to Mr. Lamar’s pro se motion, the Court

will nonetheless refer to the preliminary injunction as being advanced on behalf of all three Plaintiffs—for the ease of

reading and to correspond to the practical reality of this case.

22 See Order (Doc. 254) (consolidating Hayes, Lamar, and Holloway “for all purposes”).

23 Br. in Supp. of Pls.’ Mot. for Summ. J. (Doc. 331) at 4. Mr. Jerry stated that Mr. Hayes had received and spent

other stimulus funds (presumably those under either the CARES Act and/or the CAA) before the state prison officials

began enforcing Act 1110. See Ex. 1 (First Decl. of Jeffrey Jerry) to Def.’s Consolidated Br. in Opp’n to Mot. for

Temporary Restraining Order and Prelim. Inj. and in Supp. of Mot. to Dismiss (Doc. 16-1) ¶ 8; see also Ex. 1 (Second

Decl. of Jefferey Jerry) to Br. in Supp. of Pls.’ Mot. for Summ. J. (Doc. 331-1) at 5.

24 Br. in Supp. of Pls.’ Mot. for Summ. J. (Doc. 331) at 4. Mr. Lamar’s ARPA stimulus payment was deposited into

his inmate banking account on April 5, 2021. Id. “Within seconds, the Defendants seized $1,395” of that stimulus

payment and used those confiscated funds to pay “certain fines, fees, costs, and restitution that Mr. Lamar owed.” Id.

It is unclear to the Court how Defendants’ enforcement of Act 1110 could have been responsible for this April 5, 2021

confiscation because Act 1110 did not become effective until May 3, 2021. See Ark. Code. Ann. § 12-29-120. It is

true that Act 1110 reaches back to any payments received “on or after October 3, 2020,” id., but that does not mean a

law that is not yet in effect can be enforced.

Perhaps the correct explanation for the April 2021 confiscation is Arkansas Department of Corrections Administrative

Directive (“AD”) 16-44. AD 16-44 allegedly allows Defendants to deduct money from an inmate’s account to pay a

prisoner’s obligations so long as at least $5 remains in the inmate’s account. See Lamar Case Docket, (Doc. 11) ¶¶

28–29. In his pro se Amended Complaint, Mr. Lamar also sought to challenge the constitutionality of AD 16-44. Id.

If AD 16-44 is indeed responsible for the April 2021 confiscation, then this Order and the injunction entered today do

not cover that confiscation. Today’s ruling is only relevant to the enforcement of Act 1110. Mr. Lamar, or any other

state prisoner, can challenge the constitutionality of AD 16-44 at another time.

25 Br. in Supp. of Pls.’ Mot. for Summ. J. (Doc. 331) at 4.

26 Id. Mr. Holloway “owed some court costs to the federal courts,” id., but it is not clear at this time whether any of

Mr. Holloway’s confiscated stimulus funds have been used to pay off those fines. In a Declaration filed on September

2, 2021, Mr. Jerry stated that all $1,400 of Mr. Holloway’s confiscated federal stimulus funds were being held in the

On September 3, 2021, the Court entered a preliminary injunction after finding that

Plaintiffs were likely to succeed in proving that diverting prisoners’ stimulus funds to an inmate

welfare fund and the Division of Correction Inmate Care and Custody Fund Account violates the

Takings Clause of the Fifth Amendment and the procedural component of the Due Process Clause

of the Fourteenth Amendment.27 Under that preliminary injunction, Defendants have been able

to: (1) continue confiscating prisoners’ stimulus payments; and (2) continue using the confiscated

funds to pay off existing court fines, fees, costs, or restitution.28 But any stimulus funds leftover

after paying court fines, fees, costs, or restitution have been held in the sequestered account

maintained by the state prison officials.29

Shortly after the Court entered the preliminary injunction, Defendants made a rather unique

request—they asked the Court to make its preliminary injunction permanent.30 In that scenario,

any excess stimulus funds currently sitting in the sequestered account would be returned to the

prisoners. From this request, it appears that Defendants are basically acquiescing to the legal

conclusions in the Court’s Preliminary Injunction Order. Although the Court appreciated (and still

appreciates) Defendants’ attempt to streamline this litigation, the Court explained to Defendants

that we cannot jump to the finish line so easily.31 That is because Plaintiffs do not agree with all

the legal conclusions in the Court’s Preliminary Injunction Order, and they have every right to a

sequestered account. See Ex. 1 (Second Decl. of Jefferey Jerry) to Br. in Supp. of Pls.’ Mot. for Summ. J. (Doc. 331-

1) at 5.

27 See Prelim. Inj. Order (Doc. 79). The Court also concluded that irreparable harm was established and that the

remaining Dataphase factors either cut in Plaintiffs’ favor or were neutral. Id. at 24–28.

28 Id. at 28–30.

29 Id. As of January 10, 2022, the sequestered account had a balance of $2,784,849.96. See Ex. 1 (Third Decl. of

Jeffrey Jerry) to Defs.’ Resp. to Pls.’ Mot. for Summ. J. (Doc. 344-1) ¶ 8. Defendants had deposited a total of

$4,405,227.57 into the sequestered account. Id. ¶ 5. From those deposits, $1,620,377.61 had been withdrawn to pay

prisoners’ court fines, fees, costs, or restitution. Id. ¶ 6.

30 See Defs.’ Mot. for Permanent Inj. (Doc. 151); Br. in Supp. of Defs.’ Mot. for Permanent Inj. (Doc. 152).

31 Dec. 1, 2021 Hr’g Tr. at 3–6.

full airing of their legal arguments. Plaintiffs do not only want to receive the stimulus funds

leftover after their court fines, fees, costs, or restitution are paid off. Plaintiffs want, and believe

they are entitled to, the return of all of their stimulus funds. In light of these developments, and

the fact that everyone agreed there were no factual disputes in the case, the Court suggested that

the Plaintiffs might want to move for summary judgment.32 The Plaintiffs took the Court up on

this suggestion. On December 31, 2021, they filed the pending Motion for Summary Judgment.33

Plaintiffs’ Motion for Summary Judgment seeks “equitable restitution [of] the money that

the Defendants seized and the interest the Defendants have earned on the Plaintiffs’ money . . . .”34

The crux of Plaintiffs’ Motion boils down to two issues: (1) whether the state prison officials are

prohibited from using prisoners’ stimulus payments to pay off court fines, fees, costs, or restitution;

and (2) whether the Plaintiffs are entitled to interest on whatever funds were unlawfully

confiscated. Defendants say the answer to each of these questions is no.

II. DISCUSSION

Summary judgment is appropriate when “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”35 Here, there are no factual disputes

between the parties. The (very few) points of contention are purely questions of law.

Plaintiffs argue that enforcement of Act 1110 violates the Takings Clause, procedural due

process, and substantive due process.36 The Plaintiffs also argue that Act 1110 is preempted by

32 Id. at 22.

33 Pls.’ Mot. for Summ. J. (Doc. 330).

34 Id. at 2. Plaintiffs also seek an award of “costs, attorneys fees, and all other just and proper relief.” Id. The Court

will address the propriety of costs and attorneys’ fees at a later date upon a proper motion.

35 Fed. R. Civ. P. 56(a).

36 Br. in Supp. of Pls.’ Mot. for Summ. J. (Doc. 331) at 6–14.

federal law under the Supremacy Clause.37 The Court previously addressed these legal questions

in its Preliminary Injunction Order.38 As explained below, nothing that has occurred since the

Preliminary Injunction Order, including Plaintiffs’ arguments in their Summary Judgment papers,

has altered the Court’s prior conclusions.

Plaintiffs raise an additional issue that they did not raise at the preliminary-injunction stage.

Specifically, Plaintiffs contend that Defendants are required to pay interest on any unlawfully

confiscated stimulus funds.39 For the reasons discussed in Section II.E. of this Order, the Court

will not require Defendants to pay any interest.

A. Takings Clause

In the Preliminary Injunction Order, the Court found that diverting prisoners’ stimulus

funds to an inmate welfare fund or the Division of Correction Inmate Care and Custody Fund

Account was (more likely than not) an unconstitutional taking without just compensation.40

Plaintiffs agree that such use of prisoners’ stimulus funds is an unconstitutional taking because it

does not provide just compensation.41 Defendants all but concede that point—at the very least

they acquiesce to it.42 For the reasons discussed in the Preliminary Injunction Order, the Court

now concludes that diverting prisoners’ stimulus funds to an inmate welfare fund or the Division

37 Id. at 14–19.

38 See Prelim. Inj. Order (Doc. 79) at 6–24.

39 Br. in Supp. of Pls.’ Mot. for Summ. J. (Doc. 331) at 19–25.

40 Prelim. Inj. Order (Doc. 79) at 23–24. The Fifth Amendment’s Takings Clause “is applicable to the States through

the Fourteenth Amendment.” Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 122 (1878).

41 Br. in Supp. of Pls.’ Mot. for Summ. J. (Doc. 331) at 8–9.

42 Defs.’ Resp. to Pls.’ Mot. for Summ. J. (Doc. 344) at 2 (Defendants renewing their previous request that the Court

make its preliminary injunction permanent); see also Defs.’ Mot. for Permanent Inj. (Doc. 151) ¶¶ 10–13; Br. in Supp.

of Defs.’ Mot. for Permanent Inj. (Doc. 152) at 1.

of Correction Inmate Care and Custody Fund Account is an unconstitutional taking without just

compensation.

The Court also previously ruled that (more likely than not) using prisoners’ stimulus funds

to pay off court fines, fees, costs, or restitution did not violate the Takings Clause.43 That is

because the payment of court fines, fees, costs, or restitution constituted just compensation.

Plaintiffs now push back on this preliminary conclusion, arguing that paying off prisoners’ debts

is not just compensation because “‘[j]ust compensation’ under the Fifth Amendment ‘means the

full and perfect equivalent in money of the property taken.’”44 As Plaintiffs see it, the only

constitutionally permissible form of just compensation is cash. But the Supreme Court has

acknowledged that “[n]o decision of this Court holds that compensation other than money is an

inadequate form of compensation under eminent domain statutes.”45 More specifically, the

Supreme Court has said that “consideration other than cash—for example, any special benefits to

a property owner’s remaining properties—may be counted in the determination of just

compensation.”46 Indeed, the very next sentence in the case that Plaintiffs cite clarifies the just-

compensation rule by stating that “[t]he owner is to be put in as good position pecuniarily as he

would have occupied if his property had not been taken.”47 That is simply another way of saying

what this Court said in its Preliminary Injunction Order: The prisoners are provided with a “dollar-

43 Prelim. Inj. Order (Doc. 79) at 22–23.

44 Br. in Supp. of Pls.’ Mot. for Summ. J. (Doc. 331) at 8 (quoting United States v. Winnebago Tribe of Neb., 542 F.2d

1002, 1006 (8th Cir. 1976)).

45 Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 150 (1974).

46 Id. at 151.

47 Winnebago Tribe of Neb., 542 F.2d at 1006 (quoting United States v. Miller, 317 U.S. 369, 373 (1943)).

for-dollar benefit” when their stimulus funds are used to pay off their existing court fines, fees,

costs, or restitution.48

In sum, the Court concludes that enforcement of Act 1110 violates the Takings Clause

when prisoners’ stimulus funds are diverted to an inmate welfare fund or the Division of Correction

Inmate Care and Custody Fund Account. On the other hand, there is no unconstitutional taking

when prisoners’ stimulus funds are used to pay off their existing court fines, fees, costs, or

restitution.

B. Procedural Due Process

In the Preliminary Injunction Order, the Court concluded that there was (more likely than

not) a procedural due process violation when state prison officials diverted prisoners’ stimulus

funds to an inmate welfare fund and the Division of Correction Inmate Care and Custody Fund

Account.49 That conclusion flowed from two related observations: (1) that Act 1110 only

authorizes the state prison officials to confiscate stimulus funds when such a confiscation is not

“prohibited by federal law”; and (2) therefore, prisoners must be afforded “an ability to contest

whether confiscation of the stimulus payments is ‘prohibited by federal law.’”50 Because neither

Act 1110 nor the state prison system’s internal grievance procedures currently provide for any

opportunity to “challenge a confiscation as violating federal law,” there is a violation of procedural

due process.51 Plaintiffs agree with the Court.52 Defendants all but concede the point—or at the

48 Prelim. Inj. Order (Doc. 79) at 22–23.

49 Id. at 19.

50 Id.

51 Id.

52 Br. in Supp. of Pls.’ Mot. for Summ. J. (Doc. 331) at 12.

very least acquiesce to it.53 For the reasons discussed in the Preliminary Injunction Order, the

Court now concludes that, under present circumstances, diverting prisoners’ stimulus funds to an

inmate welfare fund or the Division of Correction Inmate Care and Custody Fund Account is a

violation of the procedural component of the Due Process Clause of the Fourteenth Amendment.

With respect to the confiscated stimulus funds that are used to pay off existing court fines,

fees, costs, or restitution, the Court reaffirms its prior conclusion that procedural due process is

satisfied.54 This Court concluded in the Preliminary Injunction Order that the Eighth Circuit case

Mahers v. Halford “is authoritative as to restitution and highly persuasive as to court fines, fees,

and costs.”55 Nothing has changed the Court’s view on this point.

C. Substantive Due Process

In the Preliminary Injunction Order, the Court construed the (then pro se) Plaintiffs’

Complaint and Motion for Preliminary Injunction to include an argument that Act 1110 violated

the prisoners’ substantive due process rights.56 The Complaint and Motion were rather vague as

to the substantive due process argument that Plaintiffs were trying to make.57 Given that the Court

was liberally construing vague and ambiguous pro se pleadings and motion papers, the Court

presumed Plaintiffs were trying to make a traditional tiers-of-scrutiny substantive due process

53 Defs.’ Resp. to Pls.’ Mot. for Summ. J. (Doc. 344) at 2 (Defendants renewing their previous request that the Court

make its preliminary injunction permanent); see also Defs.’ Mot. for Permanent Inj. (Doc. 151) ¶¶ 10–13; Br. in Supp.

of Defs.’ Mot. for Permanent Inj. (Doc. 152) at 1.

54 Prelim. Inj. Order (Doc. 79) at 13–14.

55 Id. at 14 (discussing Mahers v. Halford, 76 F.3d 951 (8th Cir. 1996)).

56 See id. at 1, 20–21.

57 See Pl.’s Am. Compl. (Doc. 11) at 4 (Mr. Lamar’s pro se Amended Complaint stating that “taking the stimulus

money of an incarcerated person for no reason at all violates Due Process of Law”); Pl.’s Mot. for Prelim. Inj. (Doc.

17) at 9–10 (Mr. Lamar’s pro se Motion for a Preliminary Injunction arguing that “Act 1110 also violates . . . the Due

Process Clause of the 14th amendment”).

argument. Thus, the Court had to identify and define the particular “right” that the pro se Plaintiffs

were trying to allege was protected by the substantive due process doctrine.58

The Court considered the right at issue to be “the right of a prisoner to receive and spend

generalized financial aid from the federal government.”59 The Court concluded that such a right

was “not fundamental” and therefore only rational basis review applied.60 The Court held that Act

1110 likely survived rational basis review because diversion of “the prisoners’ federal relief and

stimulus funds is rationally related to the State’s legitimate interest in collecting court fines, fees,

costs, and restitution, maintaining the statutorily mandated inmate welfare funds, and helping pay

for other costs associated with housing inmates.”61

Plaintiffs (now represented by counsel) do not challenge the Court’s legal analysis in the

Preliminary Injunction Order. This time around, they take a completely different analytical

approach to the substantive due process issue. They do not argue that Act 1110 itself violates the

substantive due process doctrine. Instead, they argue that Defendants’ conduct in confiscating the

prisoners’ stimulus funds violates the substantive due process doctrine.62 This changed focus of

the claim alters the analytic framework that applies. For claims like the one now being pressed,

the Eighth Circuit first asks whether the conduct of an executive officer violates a fundamental

right.63 If the answer to that question is yes, the Eighth Circuit next asks whether “the behavior of

58 Prelim. Inj. Order (Doc. 79) at 6 n.26 (noting that pro se complaints must be liberally construed); id. at 20 (stating

that Supreme Court precedent requires defining a substantive-due-process right with “the utmost care”).

59 Id. at 21.

60 Id. 20–21.

61 Id. at 20.

62 Br. in Supp. of Pls.’ Mot. for Summ. J. (Doc. 331) at 12–13.

63 Folkerts v. City of Waverly, 707 F.3d 975, 980 (8th Cir. 2013).

the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the

contemporary conscience.”64

Plaintiffs contend that Defendants’ conduct is a substantive due process violation because

“a fundamental right was violated and [the state prison officials’] conduct shocks the

conscience.”65 Plaintiffs define the fundamental right as the “right to be free from unauthorized

government confiscation of money that they received from outside sources.”66 From this premise,

they argue that their fundamental rights were violated and will continue to be violated because

Defendants “do not have statutory authority to confiscate” the prisoners’ stimulus payments.67

According to Plaintiffs, Defendants’ conduct is an “unauthorized government

confiscation” because (1) Act 1110 only authorizes confiscations that are not “prohibited by

federal law”; and (2) confiscating the prisoners’ stimulus payments “violate[s] federal law at

multiple points.”68 And, Plaintiffs say, Defendants knew or should have known the confiscation

was not authorized by statute.69 Thus, Plaintiffs’ argue, Defendants were “deliberately indifferent”

to their lack of statutory authority, which “shocks the conscience.”70 Defendants fail to directly

address Plaintiffs’ new substantive due process argument. (Instead, Defendants address the tiers-

of-scrutiny analysis in the Preliminary Injunction Order.) However, Defendants’ summary

64 Id.

65 Id. at 13 (quoting Mitchell v. Dakota Cnty. Soc. Servs., 959 F.3d 887, 898 (8th Cir. 2020)).

66 Br. in Supp. of Pls.’ Mot. for Summ. J. (Doc. 331) at 13 (emphasis added) (citing Parrish v. Mallinger, 133 F.3d

612, 614 (8th Cir. 1998)).

67 Id.

68 Id. at 13–14.

69 Plaintiffs emphasize that state actors are charged with knowledge of the law. Id. at 14 (citing Georgia v.

Public.Resource.Org, Inc., 140 S. Ct. 1498 (2020)).

70 Id.

judgment briefing does incorporate their argument that Act 1110 is not in conflict with federal

law.71

With respect to the confiscations used to pay court fines, fees, costs, or restitution, the

Court concluded in its Preliminary Injunction Order that such confiscations are likely not

prohibited by federal law.72 Nothing has altered the Court’s conclusion. Given this, the Court

now concludes that Act 1110 therefore authorizes the state prison officials to make such

confiscations. Accordingly, this portion of Plaintiffs’ substantive due process claim doesn’t work.

The other portion of Plaintiffs’ substantive due process claim—the confiscation of funds

for the inmate welfare fund and the Division of Correction Inmate Care and Custody Fund

Account—is trickier. This Court has already concluded (in the instant Order) that such

confiscation violates the Taking Clause and procedural due process. Nonetheless, to the extent

Plaintiffs are arguing that Act 1110 does not authorize confiscations that violate the Constitution,

such a claim is not actionable. The Supreme Court has expressly declared such a repackaging to

be inappropriate: “Where a particular Amendment ‘provides an explicit textual source of

constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not

the more generalized notion of “substantive due process,” must be the guide for analyzing these

claims.’”73

But perhaps Plaintiffs are also arguing that Act 1110 does not authorize these confiscations

because they are prohibited by federal law due to the obstacle preemption doctrine. Under this

reading of Plaintiffs’ argument, they would be claiming that confiscating a prisoner’s stimulus

funds and diverting those funds to an inmate welfare fund and the Division of Correction Inmate

71 See Defs.’ Resp. to Pls.’ Mot. for Summ. J. (Doc. 344) at 8–16.

72 Prelim. Inj. Order (Doc. 79) at 14, 21–23.

73 Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).

Care and Custody Fund Account stands as an obstacle to the accomplishment and execution of the

full purposes and objectives of the three federal stimulus acts. There is some force to this

argument. After all, in the Preliminary Injunction Order, the Court did note (in dicta) the

following:

A state statute [like Act 1110] that renders its provisions inapplicable where they

would otherwise be preempted essentially saves itself from formal preemption. It

is true that, given this analysis, ADC officials are acting in excess of their state law

authority when they take any more of a prisoner’s stimulus money than necessary

to pay off court fines, fees, costs, or restitution.74

Plaintiffs’ point, then, would be that, (essentially) because of the obstacle preemption doctrine,

Act 1110 does not authorize the confiscation of funds for an inmate welfare fund and the Division

of Correction Inmate Care and Custody Fund Account.

But it is not clear to this Court that such a claim is actionable. Plaintiffs’ claim requires

proving a conflict between Act 1110 and the federal stimulus acts. That sure makes it seem like

Plaintiffs’ claim is really just a repackaged preemption claim. And, as explained in Section II.D.

of this Order, these plaintiffs cannot bring a preemption claim based on the federal stimulus acts.

In any event, even if this type of claim was possible, and even if Plaintiffs are right that Act 1110’s

“unless prohibited by federal law” language operates to deprive state officials of statutory authority

in these circumstances, Plaintiffs’ claim still fails. That is because Plaintiffs cannot establish that

Defendants engaged in conduct that “shocks the conscience.”

“Conscience shocking conduct only includes ‘the most severe violations of individual

rights that result from the brutal and inhumane abuse of official power.’”75 “Only a purpose to

cause harm unrelated to the legitimate object of the government action in question will satisfy the

74 Prelim. Inj. Order (Doc. 79) at 12 (emphasis added).

75 Mitchell, 959 F.3d at 898 (quoting White v. Smith, 696 F.3d 740, 757–58 (8th Cir. 2012)).

element of arbitrary conduct shocking to the conscience, necessary for a due process violation.”76

There is no record evidence that any state official knew the confiscations fell outside the statutory

authority given to them under Act 1110. From the face of the Act, there would be no way to know

such a thing. And, while Plaintiffs are generally correct that everyone is presumed to know the

law, that does not require Defendants to accurately predict a future judicial holding construing

complicated statutory text and how it is impacted by perplexing preemption doctrines. In short,

Defendants’ understanding of Act 1110—that it authorized and required confiscation of stimulus

payments for the inmate welfare fund and the Division of Correction Inmate Care and Custody

Fund Account—was highly reasonable. The fact that Defendants turned out to be wrong (at least

according to this judge) does not mean Defendants were “deliberately indifferent” or otherwise

did something to “shock the conscience.”

D. Supremacy Clause

In the Preliminary Injunction Order, the Court addressed the pro se Plaintiffs’ claims that

Act 1110 was preempted by the federal stimulus statutes.77 The Court concluded that a private

plaintiff could not maintain a preemption claim based on the federal stimulus statutes because

those statutes did not provide a private right of action.78 Plaintiffs re-assert the same argument

now. 79 But Plaintiffs do not persuade the Court to alter its prior conclusion that neither the CARES

76 Id. (quoting Folkerts, 707 F.3d at 981).

77 Prelim. Inj. Order (Doc. 79) at 6–12.

78 Id. at 6–10.

79 Br. in Supp. of Pls.’ Mot. for Summ. J. (Doc. 331) at 15–19.

Act, nor the CAA, nor the ARPA supports a private right of action under the statutes themselves

or in combination with 42 U.S.C. § 1983.80

Plaintiffs also have a new preemption argument. Plaintiffs argue that the Supremacy

Clause renders Act 1110 unenforceable because Act 1110 is “preempted by the United States

Constitution . . . .”81 And Plaintiffs note that § 1983 provides a right of action to enforce the Fifth

and Fourteenth Amendments.82 Because those Amendments are violated by enforcement of Act

1110, Plaintiffs say, then Act 1110 is necessarily preempted.83 Plaintiffs are of course correct that

the Supremacy Clause commands this Court to prioritize remedying federal constitutional

violations over allowing enforcement of the state law.84 That is exactly what the Court does today

by permanently enjoining the acts of state prison officials that would violate the Takings Clause

and procedural due process. But, if the Plaintiffs mean to suggest that enforcement of Act 1110 is

an independent “violation” of the Supremacy Clause, this argument fails. There is no such thing

as a standalone Supremacy Clause claim.85 The Supreme Court has made clear that the Supremacy

Clause does not itself create any enforceable rights.86 It is simply a “rule of decision.”87 Its role

80 See Prelim. Inj. Order (Doc. 79) at 7–8 (noting that the stimulus statutes “operate[] almost entirely as [directives] to

a federal agency” and that “there are already remedial schemes in place to vindicate interests created by” the stimulus

statutes).

81 Id.

82 See Br. in Supp. of Pls.’ Mot for Summ. J. (Doc. 331) at 15.

83 Id.

84 Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 324 (2015).

85 Even if this argument is the one that Plaintiffs mean to advance, any victory would be a nominal one because the

Plaintiffs would obtain the exact same remedy as they do today for proving violations of the Takings Clause and the

procedural component of the Due Process Clause—equitable restitution of improperly confiscated money and the

prevention of future improper confiscations.

86 Armstrong, 575 U.S. at 326.

87 Id.

in a case like this is to direct courts to vindicate federal law (including the United States

Constitution) to the detriment of state law when the two cannot co-exist.88

E. Interest

In their Motion for Summary Judgment, Plaintiffs sought “the interest Defendants have

earned on the Plaintiffs’ money . . . .”89 But the only evidence in the record on this point establishes

that no interest is earned on the confiscated stimulus funds.90 In recognition of this fact, Plaintiffs

have now tweaked their position. They now argue that, even if there is no actual interest to return,

they are still entitled to such monies—essentially as pre-judgment interest under this Court’s

equitable powers.91

88 Kansas v. Garcia, 140 S. Ct. 791, 801 (2020).

89 Pls.’ Mot. for Summ. J. (Doc. 330) at 2. In the Summary Judgment briefing, both sides dedicated much of their

energy to arguing the broad issue of whether prisoners have a property right to interest earned on money at all. See

Br. in Supp. of Pls.’ Mot. for Summ. J. (Doc. 331) at 19–25; Defs.’ Resp. to Pls.’ Mot. for Summ. J. (Doc. 344) at 16–

18; Reply in Supp. of Pls.’ Mot. for Summ. J. (Doc. 359) at 5–8; Pls.’ Mot. to Supplement Mot. for Summ. J. (Doc.

414). That’s not really the right question to ask under these circumstances. That question could be relevant in a

situation where the money was sitting in a prisoner’s inmate account and Defendants were refusing to allow the

prisoners to earn interest at all, or where the prisoner’s account was earning interest, but Defendants were diverting

the earned interest elsewhere. In a case like that, the alleged violation would be the confiscation of the earned interest

itself and a court might be required to determine the scope of a prisoner’s property right in interest earned on money.

In the case at bar, the state prison officials have wrongfully taken and wrongfully withheld the prisoners’ principal.

Any (purely hypothetical, as it turns out) interest earned on the wrongfully confiscated stimulus funds deposited in

the sequestered account would therefore be a direct result from the wrongful taking and wrongful withholding of the

prisoners’ stimulus funds. So, the real question is whether return of that earned interest (or some other form of interest,

such as pre-judgment interest) would be required as part of an equitable remedy. As explained below, the Court

concludes that pre- and post-judgment interest are inappropriate in this case. See infra notes 92–96 and accompanying

text.

90 Ex. 1 (Third Decl. of Jeffrey Jerry) to Defs.’ Resp. to Pls.’ Mot. for Summ. J. (Doc. 344-1) ¶ 8; see also Mar. 4,

2021 Hr’g Tr. at 4–5.

91 Reply in Supp. of Pls.’ Mot. for Summ. J. (Doc. 359) at 5–6; see also Mar. 4, 2021 Hr’g Tr. at 6. Plaintiffs expressly

disclaimed that they are entitled to pre-judgment interest as a matter of constitutional or statutory right. See Mar. 4,

2021 Hr’g Tr. at 6 (Plaintiffs’ Counsel stating that the request for pre-judgment interest “relates to [the Court’s] powers

under the equitable restitution”).

While “it is never automatic,”92 “prejudgment interest should ordinarily be granted unless

exceptional or unusual circumstances exist making the award of interest inequitable.”93 Thus,

Plaintiffs are correct that pre-judgment interest would normally be appropriate. The problem for

Plaintiffs is that this is not a normal case. Awarding pre-judgment interest here means that either

the state prison officials themselves or the State of Arkansas would have to give the prisoners

money that was never actually taken from the prisoners or obtained by the State or by state actors

as a result of that wrongful confiscation. Put another way, this portion of the money would have

to come from either the pockets of the state prison officials or the treasury of the State of Arkansas.

As the Court noted in the Preliminary Injunction Order, “[a] suit against a state official for

money in federal court raises the specters of Eleventh Amendment immunity, state sovereign

immunity, and qualified immunity . . . .”94 It is one thing for the Court to order the return of

wrongfully taken money and any profits that flow directly from that wrongful confiscation. But it

is quite another thing for the Court to order state officials or the State itself to pay additional

money. That seems to strike at the heart of the immunity doctrines. Even if such an order would

technically not be barred by immunity, the same considerations create “exceptional or unusual

92 Thomas v. Bakery, Confectionary and Tobacco Workers Int’l Union, Local No. 433, 982 F.2d 1215, 1220 (8th Cir.

1992).

93 Stroh Container Co. v. Delphi Indus., Inc., 783 F.2d 743, 752 (8th Cir. 1986).

94 Prelim. Inj. Order (Doc. 79) at 24–25.

circumstances,” and thus make such an order inequitable here.”> Accordingly, the Court will not

impose any form of interest.”°

CONCLUSION

The Court GRANTS in part Plaintiffs’ Motion for Summary Judgment. Specifically, the

Court grants summary judgment to the Plaintiffs on the following portions of its claims:

e The Takings Clause of the Fifth Amendment is violated when Defendants divert a

prisoner’s confiscated stimulus funds to an inmate welfare fund or the Division of

Correction Inmate Care and Custody Fund Account.

e Under the circumstances now present, the procedural component of the Due Process Clause

of the Fourteenth Amendment is violated when Defendants divert a prisoner’s confiscated

stimulus funds to an inmate welfare fund or the Division of Correction Inmate Care and

Custody Fund Account.”’

°° Stroh Container Co., 783 F.2d at 752. Plaintiffs note that, under an Arkansas Department of Correction Ouachita

River Correctional Unit Policy (“the Ouachita Policy”), prisoners may “deposit funds in interest-bearing accounts and

accrue the interest earned on those accounts” upon “written approval of the Warden.” Ex. | (the Ouachita Policy) to

Pls.’ Mot. to Supplement Mot. for Summ. J. (Doc. 414-1) 99 V, VILA. Plaintiffs argue that the Ouachita Policy shows

that the prisoners “could have” placed their stimulus funds in interest bearing accounts and therefore the Court should

award interest as part of the equitable remedy. See Pls.’ Mot. to Supplement Mot. for Summ. J. (Doc. 414) J 3-4.

But there is no allegation—let alone any evidence to support an allegation—that any of the plaintiffs have opened (or

tried to open) an interest-bearing account pursuant to the Ouachita Policy. The mere possibility that the prisoners

could have earned interest by placing their wrongfully confiscated funds in an interest-bearing account is not enough

to overcome the Court’s concerns with the immunity doctrines or the “exceptional or unusual circumstances” of

ordering the state prison officials or the State of Arkansas to pay the prisoners additional money.

98 U.S.C. § 1961(a) provides that post-judgment interest “shall be allowed on any money judgment in a civil case

recovered in district court.” This requirement does not govern cases in equity. See Clarke v. Hot Springs Elec. Light

& Power Co., 76 F.2d 918, 922 n.1 (10th Cir. 1935) (citing Perkins v. Fourniquet, 55 U.S. 328, 14 How. 328, 331

(1852)). Both Clarke and Perkins dealt with former iterations of § 1961. See Clarke, 76 F.2d at 922 (discussing

former 28 U.S.C. § 811 which “was originally enacted in 1842”); Perkins, 55 U.S. at 331 (discussing “[t]he act of

1842”). It may well be true that “an equity court has power to grant interest by analogy to § 1961,” Donovan v.

Sovereign Security, Lid., 726 F.2d 55, 58 (2d Cir. 1984), but this Court finds that such analogizing is inappropriate in

this case for the same reasons that awarding pre-judgment interest would be equitable.

°7 To the extent Plaintiffs requested declaratory relief and to the extent it is appropriate, the Court declares that, under

present circumstances, confiscating the federal stimulus payments sent to prisoners and then diverting those funds to

an inmate welfare fund or the Division of Correction Inmate Care and Custody Fund Account violates the Takings

Clause of the Fifth Amendment and the procedural component of the Due Process Clause of the Fourteenth

Amendment.

20

As to all other aspects of each claim in Plaintiffs’ Motion for Summary Judgment, the Court

DENIES the Motion98 and GRANTS summary judgment to Defendants.99 The Court will now

proceed to determine the scope and terms of the permanent injunction.

SCOPE OF INJUNCTION

This Motion for Summary Judgment was only brought by three individual plaintiffs. There

has been no class certification, so these plaintiffs are only litigating their own interests. But Act

1110 tells Defendants to take the stimulus funds of any “person who is in the custody of the

Department of Corrections” and place those funds in an inmate welfare fund or the Division of

Correction Inmate Care and Custody Fund Account if the prisoner does not have existing court

fines, fees, costs, or restitution.100 And dozens of prisoners have brought claims identical to those

resolved by the Court today. Accordingly, both sides have asked the Court to enter an injunction

that covers all prisoners to whom Act 1110 applies.101

In the Court’s view, injunctive relief generally should not extend beyond the specific

plaintiffs before the Court. That is because an overly broad injunction: (1) risks exceeding the

bounds of the judicial power,102 (2) may be unnecessarily burdensome on the enjoined

98 Pls.’ Mot. for Summ. J. (Doc. 330).

99 The Court treats Defendants’ Motion for a Permanent Injunction (Doc. 151) as a Cross-Motion for Summary

Judgment. Doing so makes enormous practical sense. Defendants’ Motion in essence asked the Court to finalize its

preliminary rulings—both those in favor of Plaintiffs and those in favor of Defendants. Furthermore, all disputes in

this case are legal. That is, there are no factual disputes and thus nothing would change between now and a trial on

the merits. Without considering Defendants’ motion to be a cross-request for summary judgment, the Court would be

unable to grant final relief at this time. That is because Plaintiffs would still have active claims remaining in the

litigation (i.e., all of their claims for which the Court did not grant summary judgment in their favor). Neither party

wants this outcome, and it is not necessary in the context of this case.

100 Ark. Code Ann. § 12-29-120(a), (d).

101 Dec. 1, 2021 Hr’g Tr. at 10–14, 17–23.

102 See Rodgers v. Bryant, 942 F.3d 451, 460–65 (8th Cir. 2019) (Stras, J., concurring in part and dissenting in part)

(detailing the impropriety of “universal injunction[s]”).

defendant,103 and (3) may hinder the procedural rights of nonparties covered by the injunction.104

Nevertheless, the Eighth Circuit has approved statewide injunctions when “the violation

established . . . impacts the entire state,” and the lack of statewide relief would “require every

plaintiff seeking statewide relief from legislative overreach to file for class certification.”105

Moreover, in this case, Defendants are expressly asking for the injunction against them to extend

statewide and to cover all state prisoners.106 In light of the binding precedent, and the agreement

of the parties as to the scope of the injunction, today’s injunction will cover all prisoners to whom

Act 1110 applied, applies, or could apply.107

103 See, e.g., Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (noting “the rule that injunctive relief should be no more

burdensome to the defendant than necessary to provide complete relief to the plaintiffs”).

104 Michael T. Morley, De Facto Class Actions? Plaintiff- and Defendant-Oriented Injunctions in Voting Rights,

Election Law, and Other Constitutional Cases, 39 Harv. J. L. & Pub. Pol’y 487, 527–28 (2016) (“All alleged

rightsholders across the state or nation become, in effect, members of an implied class, despite the fact that they have

not been brought before the court, been notified about the case, or consented to such representation.”).

105 Rodgers, 942 F.3d at 458.

106 Dec. 1, 2021 Hr’g Tr. at 10–13.

107 It is worth noting that there is another section of Act 1110 that applies to any “person who is in the custody of a

local or regional correctional facility . . . .” Ark. Code Ann. § 12-41-109. Under this provision, any such person is

“required to first use the federal relief or stimulus funds to pay off existing court fines, fees, costs, or restitution before

he or she may use the federal relief or stimulus funds for any other purpose.” Id. This provision does not say anything

about diverting funds to an inmate welfare fund, the Division of Correction Inmate Care and Custody Fund Account,

or any other similar account. Because § 12-41-109 only relates to court fines, fees, costs, or restitution, today’s Order

and the accompanying permanent injunction do not prevent enforcement of this specific section of Act 1110.

PERMANENT INJUNCTION108

For the reasons stated above, the Court enters the following permanent injunction:

1. The Court orders Defendants to return any confiscated federal relief or stimulus funds

currently held in the sequestered account that are not being used to pay off a prisoner’s

court fines, fees, costs, or restitution. Defendants have 90 days from the date of this Order

to return such funds to the prisoner or former prisoner from whom those funds were

confiscated.

2. Defendants may continue to collect prisoners’ federal relief or stimulus funds pursuant to

Act 1110 so long as the confiscated funds are deposited into the sequestered account.

Otherwise, the confiscation may not occur. For any future confiscations of federal relief

or stimulus funds, Defendants will have 90 days from the date of confiscation to determine

whether a prisoner has existing court fines, fees, costs, or restitution. Defendants may use

the confiscated funds to pay off existing court fines, fees, costs, or restitution. However,

on or before the 90th day, Defendants must return to the prisoner or former prisoner any

confiscated funds that are in excess of the identified court fines, fees, costs, or restitution.

3. Defendants shall continue to maintain specific and detailed records of: (a) which prisoner’s

federal relief or stimulus funds have been deposited into the sequestered account; (b) how

much of each prisoner’s federal relief or stimulus funds have been deposited into the

sequestered account; and (c) how much of each prisoner’s federal relief or stimulus funds

in the sequestered account have been used to pay court fines, fees, costs, or restitution.

4. When a prisoner or former prisoner has federal stimulus or relief funds in excess of his or

her identified court fines, fees, costs, or restitution, and Defendants return the excess funds

to the prisoner or former prisoner, Defendants must provide that prisoner or former prisoner

with documentation detailing: (a) the date or dates the federal relief or stimulus funds were

confiscated; (b) the amount of confiscated funds used to pay court fines, fees, costs, or

restitution; (c) the amount of confiscated funds that have been returned; and (d) the date

the confiscated funds were returned.

108 The standard for issuing a permanent injunction is “essentially the same” as the standard for a preliminary

injunction. Oglala Sioux Tribe v. C & W Enterprises, Inc., 542 F.3d 224, 229 (8th Cir. 2008). The “one key

difference” is that, for a permanent injunction, the moving party must “show actual success on the merits, rather than”

merely meet the likelihood-of-success standard applicable at the preliminary-injunction stage. Id.; see also Prelim.

Inj. Order (Doc. 79) at 5. As this Order explains, Plaintiffs have shown actual success on portions of their Takings

Clause and procedural due process claims. The remaining factors of the permanent injunction test (threat of irreparable

harm absent the injunction, potential injury to the enjoined party, and the public interest) support a permanent

injunction here. Oglala Sioux Tribe, 542 F.3d at 229. The Court thoroughly discussed these factors in the Preliminary

Injunction Order. (Doc. 79) at 24–28. Neither side contests the Court’s conclusions as to those factors nor argues

that a permanent injunction is inappropriate for any other reason. Indeed, the Defendants themselves have asked that

a permanent injunction be entered. Defs.’ Resp. to Pls.’ Mot. for Summ. J. (Doc. 344) at 2 (Defendants renewing their

previous request that the Court make its preliminary injunction permanent); see also Defs.’ Mot. for Permanent Inj.

(Doc. 151) ¶¶ 10–13; Br. in Supp. of Defs.’ Mot. for Permanent Inj. (Doc. 152) at 1.

5. Defendants may not otherwise use in any manner or disburse the federal relief or stimulus

funds in the sequestered account. This includes, but is in no way limited to, placing any

confiscated federal relief or stimulus funds into an inmate welfare fund or the Division of

Correction Inmate Care and Custody Fund Account.!

IT IS SO ORDERED this 16th day of March 2022.

LEE P. RUDOFSKY

UNITED STATES DISTRICT JUDGE

10 The Court retains jurisdiction to enforce this injunction. Picon vy. Morris, 933 F.2d 660, 662 (8th Cir. 1991)

(“[W]hen a court issues an injunction, it automatically retains jurisdiction to enforce it.”) (quoting United States v.

Fisher, 864 F.2d 434, 436 (7th Cir. 1988)).

24