BURFORD v. DELAWARE COUNTY, PENNSYLVANIA

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

TONY BURFORD, :

: Case No. 19-cv-0577-JMY

Plaintiff :

:

v. :

:

DELAWARE COUNTY, :

PENNSYLVANIA, ET AL., :

:

Defendant :

MEMORANDUM

This controversy stems from a former criminal defendant’s allegation, that a local

government, by and through its implementation of bail practices, have financially exploited the

criminally accused even when ultimately found not guilty at trial or where charges have been

withdrawn. The bail practice that is the center of controversy is the retention by local governments

of so-called “fees” to allegedly defray the cost of bail administration even when criminal

defendants are acquitted of a crime. The claim is that the retention of these fees may amount to an

unconscionable source of revenue generation by the government where the innocent and indigent

are forced to pay charges that, in effect, operate as taxes and fines for defending their innocence.

Despite Plaintiff’s allegations, and ample opportunities afforded by this Court, at the end of

discovery, Plaintiff has failed to offer any proof that it was Defendants’ policy or practice to

improperly retain bail money. As much as Plaintiff’s counsel tries to make this case fit the

narrative of exploitive, bail practices, this is not one of them.

Now before the Court is Defendants’ Motion for Summary Judgment. Both Plaintiff and

the Defendants agree that Plaintiff – who was charged but never convicted of a crime – was entitled

to a bail refund in the amount of $3,600, instead of the $2,483.20 he received, and that $1,116.80

from this refund was erroneously deducted. Defendants argue this merely reflected an error,

attributable to a clerical mistake that could have easily been rectified with proper notice, whereas

Plaintiff argues that Defendants’ conduct amounts to Fourteenth Amendment, Eighth Amendment

and Fifth Amendment constitutional violations as well as common law conversion that warrants

class certification.

On Defendants’ Motion to Dismiss, this Court accepted as true – and indeed was required

to accept as true – Plaintiffs’ allegations that the erroneous calculation of Plaintiff’s bail refund

“was the result of Delaware Count[y’s] policy, practice and/or custom, and not some random and

[un]authorized act of [a] single employee, and it clearly would have been practical for the state to

provide some meaningful process.” (ECF No. 28 at 19.) While Plaintiff’s allegations were

sufficient grounds to deny Defendants’ Motion to Dismiss as to Plaintiff’s procedural due process

claims, after three years of litigation, Plaintiff has failed to show any evidence that the erroneous

charges were the result of anything more than a random and unauthorized, clerical mistake. A

government employees’ failure to abide by the law and government procedures due to an instance

of isolated human error does not amount to a procedural due process violation where, as here, there

were ample and adequate opportunities for the mistake to be challenged and corrected. Therefore,

the Court finds that there is insufficient evidence from which a reasonable jury could find that

Defendants’ actions amounted to a constitutional violation, and grants summary judgment in

Defendants’ favor. Because the Court no longer has original jurisdiction over any federal-law

claim, the Court also declines to exercise supplemental jurisdiction over Plaintiff’s state law

conversion claim.

I. BACKGROUND

Plaintiff Tony Burford was arrested on January 15, 2016. An information was filed against him

in the Delaware County Court of Common Pleas charging Plaintiff with one or more felonies.

(ECF No. 62-2 at 30). Bail was initially set at $100,000 and then subsequently reduced to $60,000

for which Plaintiff posted 10% at $6,000. By March 1, 2017 all charges against Plaintiff were

either withdrawn, dismissed or he was found not guilty. (ECF No. 62-2 at 25.) Despite not being

convicted of any crime, Plaintiff was assessed $3,533.05 in costs which consisted of $2,400 for a

“Bail Handling Percent (Delaware)” along with various charges in the amount of $1,133.05. (ECF

No. 62-2 at 33.) Thus, of the $6,000 Plaintiff posted bail for, he was offered less than 50% back

despite not being convicted of any offense.

Plaintiff does not dispute the $2,400 “Bail Handling Percent.” Instead, at issue in this case, is

$1,116.80 that both parties agree was erroneously deducted from Plaintiff’s bail refund which

included $811 for “Constable (Delaware),” $5 for “Constable Education Training Act,” $300 for

“Darby Boro PD PCF,” and $16.25 for “Certification (Delaware”) (collectively “Constable and

Live Scan Charges”).1 Typically, once a defendant is charged with a crime, a cost clerk puts an

entry on the docket for Constable and Live Scan Charges, but bail money is not supposed to be

used to pay these charges, as such charges should only be assessed if a criminal defendant is

convicted at trial and sentenced. In other words, the cost clerk puts an entry on the docket that

operates like an invoice for Constable and Live Scan Charges, but criminal defendants are not

required to pay these charges if they are ultimately acquitted. Once a Defendant is found not guilty

or charges are dismissed or withdrawn, the court clerk is supposed to bring the cost clerk the case

1 Plaintiff received a check for his bail refund in the amount of $2,483.20. (ECF No. 64-1 at 390.)

Though the Constable and Live Scan Charges equate to $1,133.05, the amount of bail refund due

of $3,600 minus the amount received of $2,483.20 equals $1,116.80.

file, who is then supposed to adjust the Constable and Live Scan Charges on the docket to zero so

that a defendant is not assessed these charges when they receive a bail refund. (Id at 22.) Indeed,

the law requires that in cases where criminal charges are dismissed, Delaware County, the local

government must pay these fees instead. See 44 Pa. C.S.A. § 7161(g)(16).

Unfortunately, what was supposed to occur did not happen in this case. In June of 2017,

Plaintiff received a check dated April 25, 2017 in the mail with an incorrect bail refund of

$2,483.20, instead of the $3,600 that was due. (ECF No. 1 at 10; ECF No. 64-1 at 390; ECF No.

65 at 1.) Although Susan Porreca, the cost clerk for Office of Judicial Support does not know why

Plaintiff received an incorrect bail refund, she testified that someone else came to her department

in 2017 to inquire why they incurred certain costs when their case was dismissed. This led her and

Angela Martinez, who supervises the issuance of bail refund checks, to investigate. (ECF No. 62-

1 at 24.) Upon review, it was discovered that the court clerk had entered the cost information into

the docket, but instead of giving the file to Ms. Porreca to reduce the costs to zero as required, the

file was sent directly to the file room. (Id. at 25.). Upon learning this information, Ms. Porreca

immediately reduced that defendant’s costs to zero and Ms. Martinez reiterated to the court clerks

that the files for all criminal defendants who had their cases dismissed, withdrawn or found not

guilty had to go to Ms. Porreca before taking them to the file room. (Id.)

Ms. Martinez, a named Defendant and the First Deputy Clerk of Court of Delaware County,

is responsible for effectuating the policies of the Office of Judicial Support. She testified that other

than Plaintiff, she was not aware of any other individual defendants who were found not guilty and

had Constable and Live Scan Charges deducted from their bail refund. (ECF No. 62-2 at 118.) She

further testified that if a defendant ever raised an issue with a bail refund error – which did happen

over the years she was there – it was corrected once brought to the attention of staff. (Id. at 118-

119.) Further, she is unaware of any bail error issue brought to the attention of the Office of

Judicial Support in which it declined to give a defendant the money to which he or she was entitled

where mistakes had been made. (Id.) Ms. Martinez stated that there is no policy or practice by the

Office of Judicial Support to take out Constable and Live Scan Charges for individuals found not

guilty. (Id.) Ms. Johnna Lee Marie Higgins, who works in customer service at the criminal counter

filings, testified that three other criminal case dockets she was shown list incorrect fees on the

docket. However, unlike Plaintiff, there is no evidence that these defendants had bail money

incorrectly withheld from their refunds when they were found not guilty, or the case was

withdrawn or dismissed. (ECF No. 62-1 at 19.) Ms. Eileen Troutman, a data clerk, testified that

she has never received complaints about costs being taken out of a criminal defendant’s bail when

the charges are dismissed by the prosecution. (Id. at 20.) Ms. Porreca testified that other than

Plaintiff and one incident in 2017 that was corrected, she was unaware of any other instance in

which Constable and Live Scan Charges were not reduced to zero when defendant was found not

guilty, or charges were dismissed or withdrawn. (Id. at 25.) She further testified that there is no

policy or procedure or any intentional conduct that led to the incorrect retention of a portion of

Plaintiff’s bail money. (Id. at 29.)

Following receipt of the bail refund check, Plaintiff called the Court Financial Service’s

number listed on the check and inquired as to why he did not receive his entire bail money back.

(Id.) Plaintiff did not inquire specifically as to the Constable and Live Scan Charges, but no one

in the Court Financial Services office made any corrections at that time to the bail refund Plaintiff

received. (Id.) Errors in bail refunds can be corrected simply by contacting the Office of Judicial

Support and Ms. Martinez testified that she is not aware of any instance where they were alerted

to an error which was not corrected. (ECF No. 62-1 at 11; ECF No. 62-2 at 119.) Plaintiff did not

inform any employee at the Office of Judicial Support – the office charged with overseeing that

bail refund checks are correct – until Plaintiff brought this lawsuit. (ECF No. 65 at 29.) Once the

Office of Judicial Support was informed as to the error in Plaintiff’s bail refund check regarding

the Constable and Live Scan Charges, Plaintiff was offered a check for the proper refund. (ECF

No. 62-1 at 11.) He declined that check.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56(a), a party is entitled to summary judgment

where the movant shows that there is “no genuine dispute as to any material fact”. Fed. R. Civ. P.

56(c). “Facts that could alter the outcome are ‘material,’ and disputes are ‘genuine’ if evidence

exists from which a rational person could conclude that the position of the person with the burden

of proof on the disputed issue is correct.” Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d

737, 743 (3d Cir. 1996). The movant bears the initial responsibility for informing the court of the

basis for its motion and identifying those portions of the record which it believes demonstrate the

absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);

Conoshenti v. Pub. Serv. Elec. & Gas Co., 264 F.3d 135, 145 (3d Cir. 2004). An issue is “genuine”

if there is a sufficient evidentiary basis on which a reasonable jury could return a verdict for the

non-moving party. Kaucher v. Cty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson,

477 U.S. at 248). A factual dispute is “material” if it might well affect the outcome of the case

under governing law. Id. (citing Anderson, 477 U.S. at 248).

A court must view the facts and draw all reasonable inferences in the non-moving party’s

favor. See In re Flat Glass Antitrust Litig., 285 F.3d 350, 357 (3d Cir. 2004); see also Curley v.

Klem, 298 F.3d 271, 276-77 (3d Cir. 2002) (“In evaluating the evidence, we are required to view

the inferences to be drawn from the underlying facts in the light most favorable to the party

opposing the motion.”) (internal quotation marks and citation omitted). Nonetheless, a court need

not credit “[u]nsupported assertions, conclusory allegations, or mere suspicions.” Betts v. New

Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010).

For claims or defenses where the movant bears the burden of proof at trial, a movant “must

show that it has produced enough evidence to support the findings of fact necessary to win.” El v.

Se. Pa. Transp. Auth., 479 F.3d 232, 237 (3d Cir. 2007). For claims or defenses that the non-

movant bears the burden of proof at trial, a movant can simply point out “that there is an absence

of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325. Once the movant

has met its burden of proof, the opposing party “must point to actual evidence in the record on

which a jury could decide an issue of fact its way.” El, 479 F.3d at 238.

In order to survive summary judgment, the party opposing summary judgment must raise

“more than a mere scintilla of evidence in its favor.” Williams v. Borough of W. Chester, 891 F.2d

458, 460 (3d Cir. 1989). The party opposing summary judgment must cite specific evidence in

the record and may not “rest solely on assertions made in the pleadings, legal memoranda, or oral

argument.” Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006) (describing

this phase of summary judgment as “put up or shut up time for the non-moving party”). Reliance

upon “conclusory, self-serving affidavits [is] insufficient to withstand a motion for summary

judgment.” Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009); see

also Betts v. New Castle Dev. Ctr., 621 F.3d 249, 252 (2010). In deciding a motion for summary

judgment, the court is limited to determining if there is a genuine issue as to a material fact

requiring resolution by the finder of fact at trial and does not weigh evidence or determine the truth

of the matter. See Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007).

III. DISCUSSION

a. Procedural Due Process– Defendants Delaware County and Angela

Martinez

Plaintiff brings a Section 1983 lawsuit claiming his Fourteenth Amendment, procedural due

process rights were violated when Defendants retained Constable and Live Scan Charges from

Plaintiff’s bail refund without first providing notice and an opportunity to be heard. Plaintiff

alleges he should have received pre-deprivation notice that if found not guilty, all bail money

except the forty percent (40%) handling fee should be returned as well as advised of a formal or

informal process for challenging charges before they are noted on the docket. (ECF No. 64 at 8.)

Plaintiff does not challenge the 40% “Bail Handling Percent,”2 but instead claims that because

Plaintiff was never convicted of a crime, the accidental retention of Constable and Live Scan

Charges is similar to the fines and fees the Supreme Court addressed in Nelson v. Colorado, 137

S. 1249 (2017) wherein it held these assessments must be returned to criminal defendants who

have had their convictions reversed. In contrast, Defendants argue that the fees were erroneously

2 In Buckland v. Cty of Montgomery, 812 F. 2d 146, 147 (3d Cir. 1987), the Third Circuit held

that a 30% bail handling fee passed constitutional muster. Bail handing fees have generally been

held to be constitutional as they are imposed on the guilty and innocent alike and are relationally

related to a legitimate government interest in recouping the cost to pay for the bail system. See,

e.g. Schilb v. Kuebel, 404 U.S. 357 (1971); Broussard v. Parish of Orleans, 318 F.3d 844 (5th

Cir. 2003). However, the constitution is violated when a local government retains a defendant’s

conviction-related assessment where the defendant, whose conviction is overturned, must

institute a civil proceeding that requires proof of “clear and convincing evidence.” Nelson v.

Colorado, 137 S. 1249 (2017) (“Absent conviction of a crime, since a criminal defendant is

presumed innocent… the State[s]… [retention of] conviction-related assessments unless and

until the prevailing defendant institutes a discrete civil proceeding and proves her innocence by

clear and convincing evidence…offends the Fourteenth Amendment’s guarantee of due

process”); see also United States v. Feely, 1 Brock. (U.S.) 255, 259 (1813) (“The object of a

recognizance is, not to enrich the treasury, but to combine the administration of criminal justice

with the convenience of a person accused, but not proved to be guilty”). Nelson, however, did

not address the situation before this Court of a local government employee making an

unauthorized, clerical mistake that results in the improper retention of fees where there is no

criminal conviction.

retained and were the result of a clerical mistake where there was an adequate process to rectify

the discrepancy, and thus, there is no due process violation under the Supreme Court’s decisions

in Parratt v. Taylor, 451 U.S. 527, 537 (1981) and its progeny.

Section 1 of the Civil Rights Act of 1871, codified at 42 U.S.C. § 1983, creates a cause of

action in the federal courts for constitutional claims cognizable under the Fourteenth Amendment.

The Due Process Clause of the Fourteenth Amendment forbids state actors from depriving persons

of life, liberty or property without due process of law. U.S. CONST. amend. XIV, § 1; see also

Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006).3 The Supreme Court has

adopted a two-step analysis to examine whether an individual’s procedural due process rights have

been violated. The first question asks whether there exists a liberty or property interest which has

been interfered with by the State; the second question examines whether the procedures attendant

upon that deprivation were constitutionally sufficient. See Swarthout v. Cooke

per curiam Zinermon v. Burch In proc, e5d6u2ra Ul .dSu. 2e 1p6ro, c2e1s9s

c(2la0im11s), t(he deprivatio);n by state action of a, 4co9n4s tUit.uSt. i1o1na3l,l y1 2p5ro (t1ec9t9e0d )i.n terest in ‘life, or property’

is not itself unconstitutional; what is unconstitutional is the deprivation of such an interest without

due process of law.” Zinermon, 494 U.S. at 125 (quoting Parratt v. Taylor, 451 U.S. 527, 537

(1981)).

Since the parties agree that Plaintiff’s bail refund constitutes a “property” interest, the issue is

whether the Defendants’ procedure is “constitutionally adequate” to prevent erroneous

3 Both the Fifth Amendment and the Fourteenth Amendment contain due process guarantees

providing that the government shall not deprive a person of “life, liberty, or property, without

due process of law.” See U.S. CONST. amend. V (“No person shall ... be deprived of life,

liberty, or property, without due process of law ....”); Id. at amend. XIV, cl. 1. The Fifth

Amendment applies to actions taken by the federal government, whereas the Fourteenth

Amendment applies to actions taken by state governments.

deprivations. Zinernom, 494 U.S. at 126. Procedural due process usually requires affording a pre-

deprivation process in the form of some notice and opportunity to be heard. Boddie v. Connecticut,

401 U.S. 371, 379 (1971). The Supreme Court, however, has tempered this requirement by

applying a flexible, three factor test set forth in Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

The court weighs: the private interest that will be affected; the risk of erroneous deprivation of the

interest through the procedures used and the probable value, if any of additional or substitute

procedural safeguards; and, finally, the government’s interest, including the functional, fiscal and

administrative burden that the additional or substitute procedural requirements would entail. Id. at

335.

Under this test, a pre-deprivation process is not a requirement in every situation and a post-

deprivation remedy can satisfy due process. In particular, a pre-deprivation procedure may not be

required when the deprivation results from a “random and unauthorized act of a state employee.”

Parratt v. Taylor, 451 U.S. 527 (1981); Hudson v. Palmer, 468 U.S. 517 (1984). In this scenario,

the state cannot predict when such an act will occur. Thus, the state’s due process violation is not

complete until it refuses to provide a suitable post-deprivation remedy, since the inability to predict

the random and unauthorized act makes pre-deprivation procedures futile, impossible, or of

negligible value in relation to the deprivation at issue. This is known as the Parratt/Hudson rule.

To illustrate, in Parratt, a prison employee negligently lost a hobby kit an inmate ordered by

mail. In Hudson, 468 U.S. 517 (1984), a prison guard deliberately destroyed the plaintiff’s personal

property which included letters and legal materials. In both cases, the Supreme Court held that the

prisoners had not been deprived of their property without due process because they could have

utilized a state tort claim procedure to gain compensation for the loss. The Court reasoned that it

was beyond the state’s control to prevent a property loss resulting from a random, unauthorized

act that did not derive from any “established state procedure.” Parratt, 468 U.S. at 541; Hudson,

468 U. S. at 532. Critical to the holding in Parratt/Hudson is the notion that Section 1983 must

be reserved to remedy only those deprivations which result from a state’s conscious decision to

ignore the protections in the Constitution and not be used to turn “every alleged injury which may

have been inflicted by a state official acting under ‘color of state law’ into a violation of the

Fourteenth Amendment under §1983.”

Plaintiff devotes a significant portion of his briefing to arguing that the Mathews balancing test

applies, and that Defendants’ reliance on Parratt/Hudson is misplaced.4 The Court disagrees.

On Plaintiff’s Motion to Dismiss, the Court declined to hold that the Parratt/Hudson standard

applied because it accepted as true, as required on a motion to dismiss standard, Plaintiff’s

allegations that the incorrect bail refund was the result of a policy, practice and custom and not an

unauthorized, employee error. But Plaintiff has provided zero evidence that his improperly

calculated bail refund was the result of anything more than an isolated, clerical mistake that

violated official procedure. The judge’s clerk’s failure to bring Plaintiff’s case file to the cost clerk

so that the Constable and Live Scan Charges could be adjusted, in negligent disregard of what the

judge’s clerk was required to do, is by definition, an unauthorized, random and unpredictable

employee action under Parratt/Hudson.

Indeed, Plaintiff points to no evidence, beyond speculation and his own individual case. After

three years of litigation and ample opportunities afforded by this Court, Plaintiff could not identify

anyone other than himself who received a bail refund check for less than the amount they were

4 Plaintiff appears to refer to the Parratt/Hudson line of decisions as an “exception” to the

Matthews test, but according to the Supreme Court “Parratt is not an exception to the Matthews

balancing test, but rather an application of that test…” Logan v. Zimmerman Brush Co., 455 U.S.

422 (1982).

entitled to where Defendants improperly retained Constable and Live Scan Charges. Although

deposition testimony identified three other criminal cases where erroneous costs appear on the

docket, there is no evidence that these defendants failed to receive the full bail refund to which

they were entitled. In addition to discovery, Plaintiff was permitted to advertise in local media and

over the internet in order to locate other individuals who may have received bail refunds where

Constable and Live Scan Charges were improperly deducted. (ECF No. 49.) It appears that

Plaintiff was unable to locate any other individual from this advertising.

Nor has Plaintiff offered any support to his claim that the Office of Judicial Support informed

him that it was customary to deduct Constable and Live Scan Charges from bail refunds when the

plaintiff was acquitted or found not guilty. Instead, all Plaintiff has offered as evidence was that

there was a practice by the judge’s clerk to bring a case file to the cost clerk so that Constable and

Live Scan Charges, which are noted on the docket prior to being assessed, may be adjusted to zero.

This is not evidence of a policy or practice of improperly retaining a portion of a criminal

defendant’s bail refunds. Requiring a judge’s clerk to bring a case file to the cost clerk so that

Constable and Live Scan Charges may be adjusted to zero might be susceptible to human error,

but this, alone, is not a procedural due process violation. After all “to err is human,” as the famous

poet Alexander Pope once said. And human error alone does not equate to a procedural due

process violation as otherwise “federal suits might be brought for countless local mistakes by

officials in administering the endless array of state laws and local ordinances.” See Herwins v.

City of Revere, 163 F.3d 15, 19 (1st Cir. 1998). Unlike on Defendant’s Motion to Dismiss where

this Court was required to accept as true Plaintiff’s allegations that his erroneously calculated bail

refund “was the result of Delaware Count[y’s] policy, practice and/or custom, and not some

random and [un]authorized act of [a] single employee,” Plaintiff may not defeat Defendant’s

Motion for Summary Judgment by simply relying on this unsupported and conclusory allegation.

Plaintiff cites to the cases in Burns v. Pennsylvania Department of Corrections (Burns I), 544

F.3d 279, 291 (3d Cir. 2008) and Burns v. Pennsylvania Department of Corrections (Burns II),

642 F.3d 163 (3rd Cir. 2011) for the proposition that the mere notation of Constable and Live Scan

Charges on the docket prior to a conviction is a due process violation. First, Plaintiff mistakes the

holding of Burns I by conflating the two elements required to establish a due process claim of first,

whether Plaintiff has asserted a constitutionally protected interest in “life, or property” and second,

whether the deprivation of such interest was without due process of law. The Third Circuit in

Burns I held that “assessment of [a prisoner's] institutional [bank] account constituted the

deprivation of a protected property interest for the purposes of procedural due process.” 544 F.3d

279, 291 (3d Cir. 2008). In that case, an inmate brought a due process challenge against state

corrections and prison officials who placed an assessment on the inmate’s account at the

conclusion of a misconduct proceeding where a hearing determined that the inmate had committed

assault on another prisoner. The examiner assessed the inmate’s account for medical expenses

associated with the victim’s condition. Id. The defendants argued that the assessment did not result

in any deprivation of property because they took no action to seize any funds from the account.

Id. The Third Circuit rejected this argument, reasoning that the assessment “constituted a threat

of expropriation and thereby impaired his right to security in his inmate account.” Id. at 281 n.2,

288. The Third Circuit explained that because there was a possibility of future seizure of funds,

the account “possesses a lesser present day economic value than property not so encumbered.” Id.

at 289. The Third Circuit did not hold that the assessment was a due process violation, but instead

remanded the case to determine whether the disciplinary hearing that led to the assessment on the

inmate’s account satisfied procedural due process. Id.

Following the district court’s determination on remand, on appeal, the Third Circuit in Burns

II held that it was a violation of due process when the hearing officer who assessed the inmate’s

account failed to independently review a videotape recorded of the incident which may have

supported the inmate’s defense. Id. at 174 (“We therefore hold that an inmate's right to procedural

due process is violated when a hearing examiner simply fails to view available evidence to

determine its relevance and suitability for use at a disciplinary hearing.”). Unlike Burns II where

the inmate’s account was assessed following a disciplinary hearing where potential exculpatory

evidence was excluded pursuant to a state sanctioned procedure, in this case, the clerk whose

mistake led to the incorrect notation on the docket was not following established policy.

Nor do any of the other cases Plaintiff cite support the proposition that Parratt/Hudson does

not apply as they are highly distinguishable from the facts of this case. See, e.g. Logan v.

Zimmerman Brush Co., 455 U.S. 442 (1982) (State created procedural bar to presenting a claim

on its merit violated due process). Rather, the error that occurred here was exactly the type of

“random and unauthorized conduct” encompassed by Parratt/Hudson – A clerk simply made a

mistake that the Defendants had no reason to predict. Both parties agree that the bail refund was

erroneously calculated due to the judge clerk’s failure to bring the Plaintiff’s case file to the cost

clerk who, in turn, failed to adjust Constable and Live Scan Charge noted on the docket to zero,

but that does not remove the case from Parratt-Hudson; it instead establishes that this case fits

firmly within Parratt-Hudson. That is the very kind of unanticipated mistake that is due to

individual error, not induced by a statute.

Plaintiff incorrectly misconstrues the Parrot/Hudson line of cases as “only appl[ying] where

pre-deprivation notice and a hearing would be impractical or impossible” and equates whether a

procedure is “impractical,” or not, with mere possibility. That is not the case. The question is not

whether additional procedures could have avoided the clerical mistake or were possible – hindsight

is always 20/20 and if we were to focus on this inquiry alone, our judicial system could become

encumbered by a whole host of administrative requirements of little value that could bog down the

courts. Rather, the inquiry looks to the variables in the Matthews equation and whether the value

of any pre-deprivation procedures would be negligible and thus, impractical or impossible when

assessing the deprivation at issue. For instance, in Tillman v. Lebanon County Correction Facility,

221 F.3d 410 (3d Cir. 2000) it was technically possible to have a pre-deprivation hearing before

the prisoner’s funds were assessed and confiscated but such a hearing would be of little value and

thus, impractical when considering the Matthew factors as the procedures questioned involved

“routine matters of accounting, with a low risk of error…[which] may be corrected through the

prisoner’s grievance program…” Id. at 422.

The same can be said here. Under Pennsylvania law, the court is required to pay constable fees

and to do so in a relatively short period of time from fifteen to thirty days depending on the

circumstances. See 44 Pa.C.S. § 7161. By statute, a constable is entitled to certain fees for their

services, such as, but not limited to, providing courtroom security, transporting prisoners, and

serving arrest warrants. Id. The government has an important state interest in collecting costs to

defray Constable and Live Scan Charges it incurs, and to see that it is done in an organized fashion

that can be properly accounted in a centralized location. Including a notation on the criminal docket

for certain costs, such as the Constable and Live Scan Charges serves this purpose and allows the

Office of Judicial Support to trace any fees due in one location in the event a criminal defendant

is convicted. By its very nature, the criminal docket may change from time to time and the docket

states that “recent entries made in the court filing offices may not be immediately reflected on

these docket sheets. Neither the courts of the Unified Judicial System of the Commonwealth of

Pennsylvania nor the Administrative Office of Pennsylvania Courts assume any liability for

inaccurate or delayed data, errors or omissions on these reports.” (ECF No. 64-1 at 369.)

Plaintiff does have an interest in receiving the $1,116.80 he was entitled to as part of his bail

refund, and the Court does not minimize that interest, but looking at the magnitude of this

deprivation when considering the other Matthews factors weighs against requiring additional pre-

deprivation procedures. That Plaintiff cannot identify another individual who had Constable and

Live Scan Charges improperly withheld from their bail refund illustrates that the Defendants’

practice of having a judge’s clerk give the file to the cost clerk to zero out these notations on the

docket was an administrative act with a low risk of error. To require court administrators to adopt

additional pre-deprivation, clerical procedures to prevent a risk that Plaintiff has not shown

occurred to anyone else has the potential to inundate government, case administration with

unnecessary, administrative hurdles.

Further, Pennsylvania law provides ample procedural rights that afford an opportunity to

challenge the amount of bail refund issued and to root out human error. There are many procedures

to seek reimbursement of an improperly calculated bail refund. First, testimony establishes that

errors in bail refunds can be corrected simply by contacting the Office of Judicial Support and that

Defendants are not aware of any instance where they were alerted to an error which was not

corrected. (ECF No. 62-1 at 11; ECF No. 62-2 at 119.) But putting this aside, there are other

procedures to which Plaintiff could have availed himself, but did not pursue, in order to receive

the $1,116.80 he was entitled to back. First, under Pennsylvania law, Plaintiff could have filed a

“Return of Property Petition” under Pa. R. Crim P. 588 despite the lack of criminal conviction and

the fact that the bail refund was for money unrelated to the conviction itself. See In re $300,000

in United States Currency, 259 A. 3d 1051 (Pa. Commw. Ct. 2021) (holding that Pa. R. Crim. P.

588 applied to allow in rem proceedings against the government to get back property seized even

when there is no criminal conviction or charges filed). All Plaintiff would be required to establish

was that he was the rightful owner of the bail refund improperly withheld, which would be easy to

prove given that Delaware County is required to pay Constable and Live Scan Charges where the

defendant is not convicted. In re One 1988 Toyota Corolla, 675 A.2d 1290 (Pa. Commw. Ct.

1996) (Under Rule 588, the aggrieved party first must establish lawful possession of the property,

and the burden then shifts to the Commonwealth to prove the property is contraband). Plaintiff

could have also brought a claim for replevin. Finally, individuals, such as Plaintiff, who have

money incorrectly withheld from their bail refunds can vindicate their right to a refund under the

Municipalities Authorities Act (“Refund Act”), and sovereign immunity is waived. 53 Pa.C.S. §

5566(b) (under the Refund Act entitling an aggrieved party to receive, upon a filing of written and

verified claim, a refund for improper payments made to the local government); 42 P.S. 8522(b)(3)

(waiving sovereign immunity for retention of personal property). Therefore, there are sufficient

post-deprivation remedies to rectify the improper retention of Constable and Live Scan Charges,

though in this case, Plaintiff choose not to avail himself of these procedures. Like Tillman, the

clerical mistake that occurred in this case involves “routine matters of accounting, with a low risk

of error.” When considering the Matthews factors, additional pre-deprivation process would make

little sense and be impractical. Thus, we discern no procedural due process violation,5 and grant

5 Because this Court finds that no underlying due process violation occurred, the Court declines to

consider Plaintiff’s Monell argument for holding Delaware County liable, as in order to establish

Monell liability there must be an underlying constitutional violation. Mark v. Borough of Hatboro,

Defendants’ Motion as to Plaintiff’s due process claim against the Defendants Delaware County

and Angela Martinez.

b. Eighth Amendment – Excessive Fines – Delaware County

The Eighth Amendment’s Excessive Fines Clause is incorporated by the Due Process

Clause of the Fourteenth Amendment and therefore, applies to the states. Timbs v. Indiana, 139

S. Ct. 682, 689 (2019). By its plain language, however, the Excessive Fines Clause of the Eighth

Amendment is violated only if the disputed fees are both “fines” and “excessive.” See United

States v. Bajakajian, 524 U.S. 321 (1998). 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 Constable and Live Scan Charges, however, do not appear to fit that mold. In fact, the charges

that form the basis for this action occurred as a result of human error, not the implementation of

public policy, and are therefore not properly the subject of Eighth Amendment analysis. Though

the amount erroneously withheld from Plaintiff was not a trifling sum, it is relatively modest. Such

fees can hardly be called fines when Constable and Live Scan charges are merely assessed by the

government for a narrow and reasonable, cost-recovery purpose, and even then, only against those

found guilty of committing crimes. Therefore, the Court also grants Defendants’ Motion for

Summary Judgment as to Plaintiff’s Eighth Amendment claim.

c. Fifth Amendment – Taking of Property – Delaware County

Plaintiff points to no case in which a court has held that bail mistakenly withheld constitutes

government taking. The Takings Clause of the Fifth Amendment is applicable to the states through

the Fourteenth Amendment and prohibits the government from taking private property for public

51 F. 3d 1137, 1149-50 (3rd Cir. 1995). The Court also need not address immunity arguments

regarding Defendant Angela Martinez.

use without just compensation. Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001). Even, in

this case, if one were to somehow conclude that the erroneous calculation of a bail refund

constituted a default governmental taking, Defendants have already offered to provide Plaintiff

with the entirety of amounts erroneously withheld ($1,116.80). Accordingly, this alleged taking

is not without “just compensation.” Therefore, this Court also grants Defendants’ Motion for

Summary Judgment as to Plaintiff’s claim under the Takings Clause of the Fifth Amendment.

d. Conversion – Defendant Angela Martinez

Having granted summary judgment as to Plaintiff’s federal-law claims, the Court also

dismisses Plaintiff’s state law claim for conversion. A district court may decline to exercise

supplemental jurisdiction if it has dismissed all the claims over which it had original jurisdiction.

28 U.S.C. § 1367 (c) (3). In non-diversity cases where the court grants summary judgement or

dismisses all federal claims before trial, the general rule is that a district court should decline to

exercise supplemental jurisdiction over the state law claims absent “extraordinary circumstances.”

Tully v. Mott Supermarkets, Inc., 540 F. 2d 187, 195 (3d Cir. 1976). Since this Court no longer

has original jurisdiction and no extraordinary circumstances exist to exercise jurisdiction over

Plaintiff’s remaining claim for conversion, the Court declines supplemental jurisdiction over

Plaintiff’s single state law claim.

V. CONCLUSION

For the reasons discussed above, the Court grants Defendants’ Motion for Summary

Judgment as to Plaintiff’s federal law claims and declines jurisdiction over Plaintiff’s state law

conversion claim. An appropriate Order will follow.

IT IS SO ORDERED.

BY THE COURT:

/s/ Judge John Milton Younge

Judge John Milton Younge