Domingo Montanez v. Secretary Pennsylvania Depart

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 13-1380 and 13-1478

DOMINGO COLON MONTANEZ;

TIMOTHY A. HALE

v.

SECRETARY PENNSYLVANIA DEPARTMENT

OF CORRECTIONS; SCI ROCKVIEW INMATE

ACCOUNTING OFFICE; SUPERINTENDENT F. J.

TENNIS; FRANCIS M. DOUGHERTY;

EARL E. WALKER; RAYMOND CINGEL;

PENNSYLVANIA DOC; MICHAEL OPPMAN;

DIAN DETWILER; HARRY E. WILSON

Domingo Colon Montanez,

Appellant in 13-1380

Timothy Hale,

Appellant in 13-1478

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(District Court No. 4-04-cv-02569)

District Judge: Honorable A. Richard Caputo

Argued on November 7, 2013

Before: GREENAWAY, JR., VANASKIE and

ROTH, Circuit Judges

(Opinion filed: August 15, 2014)

Ernest D. Preate, Jr., Esquire (Argued)

Andrew M. Milz, Esquire

400 Spruce Street

Suite 300

Mellon Bank Building

Scranton, PA 18503

Counsel for Appellant Domingo Colon Montanez

Su Ming Yeh, Esquire (Argued)

Pennsylvania Institutional Law Project

718 Arch Street

Suite 304S

Philadelphia, PA 19106

Counsel for Appellant Timothy A. Hale

Howard G. Hopkirk, Esquire (Argued)

Office of Attorney General of Pennsylvania

Strawberry Square

15th Floor

Harrisburg, PA 17102

Counsel for Appellees

2

AMENDED OPINION

ROTH, Circuit Judge:

Plaintiffs Domingo Colón Montañez and Timothy

Hale appeal the District Court’s order granting summary

judgment in favor of the defendants on claims for damages

and injunctive relief pursuant to 42 U.S.C. § 1983.

Defendants are officials of the Pennsylvania Department of

Corrections (DOC) and its related prisons. For the reasons

that follow, we will affirm in part and reverse in part the

District Court’s judgment.

I.

This appeal involves the consolidated challenges of

two inmates in the Pennsylvania Department of Corrections

prison system to the DOC’s implementation of a program that

automatically deducts funds from prisoners’ inmate accounts

to cover court-ordered restitution, fines, and costs. The DOC

maintains bank accounts for the inmates incarcerated in its

facilities. Inmates use the funds in these accounts to cover

the costs of certain goods and services they purchase during

their time of incarceration. The DOC provides for the most

basic needs of the inmates—such as food and shelter—

without charge to the inmates’ accounts. Inmates must pay

3

for access to additional products and services, unless they

qualify as indigent. For example, inmates must purchase

items such as soap, deodorant, toothpaste, and over-the-

counter medications. Inmates are also responsible for

medical co-pays and the cost of access to legal services,

although in some circumstances inmates’ constitutional rights

compel the DOC to provide access to these services without

regard to inmates’ ability to pay. See, e.g., Reynolds v.

Wagner, 128 F.3d 166, 174 (3d Cir. 1997). Inmates accrue

money in their accounts through wages—capped at 51 cents

an hour—for work conducted for the prison system or

through gifts from friends and family.

In 1998, the Pennsylvania Legislature enacted Act 84,

which amended section 9728(b) of the Pennsylvania

Sentencing Code. Through these amendments, the legislature

authorized the DOC “to make monetary deductions from

inmate personal accounts for the purpose of collecting

restitution or any other court-ordered obligation or costs.” 42

Pa. Cons. Stat. § 9728(b)(5). Act 84 also directed that the

“Department of Corrections shall develop guidelines relating

to its responsibilities under this paragraph.” Id.

The DOC exercised its obligation to develop

guidelines relating to the collection of court-ordered monetary

obligations of its inmates by promulgating policy DC-ADM-

005, effective October 16, 1998 (the DOC Policy).1 The

current version of the Policy provides, in relevant part, that

1

The DOC policy has been amended several times since its

initial promulgation, most recently in October 2007. Neither

party suggests that the amendments impact Plaintiffs’ claims

for damages or injunctive relief.

4

the business office of each DOC facility makes “payments of

20% of the inmate’s account balance and monthly income for

restitution, reparation, fees, costs, fines, and/or penalties

associated with the criminal proceedings pursuant to” Act 84,

“provided that the inmate has a balance that exceeds $10.00.”

The DOC’s authority to make deductions is automatically

triggered when it receives a sentencing order that includes a

monetary portion. There is no requirement in the Policy that

the relevant court order contain a provision for the automatic

deduction of funds from an inmate account. The DOC does

not provide inmates with any hearing or other opportunity to

be heard before the deductions commence.

Montañez and Hale are two inmates in the DOC prison

system who have had funds deducted from their inmate

accounts pursuant to the DOC Policy. Each separately filed

suit against DOC Secretary Jeffrey Beard, as well as other

DOC officials responsible for processing the deductions

(collectively, the Corrections Officials). The crux of both

lawsuits is that the plaintiffs’ procedural due process rights

were violated when the Corrections Officials enforced the

DOC Policy and made automatic deductions from the

plaintiffs’ inmate accounts.2 Because these claims depend on

the notice and process granted to each plaintiff, we will

discuss the specific process given to each plaintiff in some

detail.

A.

2

In addition, Montañez asserted an additional claim that the

DOC Policy violated his rights under the Equal Protection

Clause of the Fourteenth Amendment.

5

On January 6, 2004, Hale was sentenced in a

Pennsylvania criminal proceeding to 82 to 160 months in

prison. As part of this sentence, Hale was ordered to pay

restitution in the amount of $1,191.11, and a fine of $1,000.

The sentencing judge also ordered Hale to pay an unspecified

amount for “the cost of the proceeding.” The final total of the

costs, $1,462.53, was not determined until sometime after the

sentencing hearing. The sentencing judge made no reference

to Act 84 or the DOC’s authority to make automatic

deductions from funds held in an inmate account.

The parties dispute the exact parameters of the notice

Hale received regarding the DOC Policy and Act 84 upon his

intake to the DOC prison system. According to a sworn

declaration submitted by the Corrections Officials, Hale

underwent new prisoner orientation when he was first

admitted, at which time he was informed that money could be

deducted from his inmate account to satisfy court-ordered

debts. The Corrections Officials also contend that Hale was

shown a video orientation and given an inmate handbook that

set forth pertinent provisions of the DOC’s grievance and

debt collection policies. Further, Hale’s institutional file

contains a form notice dated February 19, 2004—prior to the

initiation of any deductions—which sets forth the substance

of the DOC Policy. The record does not confirm, however,

whether Hale actually received this form notice. Hale

contradicts each of these assertions in a sworn declaration of

his own. In particular, Hale asserts that he was never

informed that the DOC would deduct funds from his inmate

account and was unaware of the DOC Policy until after the

deductions commenced.

6

Hale admits that, during his initial orientation, he

received an inmate handbook, which contains an explanation

of the inmate accounts. While the handbook does not contain

a copy of the DOC Policy, it does contain two references to

the DOC’s ability to deduct funds from inmate accounts. In

particular, the handbook explains, “If you were ordered to pay

restitution, reparation, fees, costs, fines, and/or penalties

associated with court proceedings, the DOC will collect

monies from your account to pay those amounts.” The

handbook further provides:

1. In accordance with 42 Pa. C.S.

§9728, the DOC shall collect monies

from your account if the court orders you

to pay restitution, reparation, fees, costs,

fines, and/or penalties associated with

the criminal proceedings.

2. The DOC shall also collect court

costs and filing fees as ordered by a

court.

...

7. For more information on the

collection of debts, refer to DOC policy

DC-ADM 005.

Hale also notes that there are several discrepancies

with respect to his total amount of court-ordered restitution,

fees, and costs. The judgment entered in Hale’s criminal case

indicates that he owed a total of $2,783.86, while his 300B

7

form3 lists a total of $4,373.64. In addition, Hale’s 300B

form erroneously inflated the amount Hale owed in restitution

by over $700.

It is undisputed that the DOC provided no opportunity

for Hale to be heard regarding his record of court-ordered

monetary obligations or the automatic deductions. Hale filed

this lawsuit in the U.S. District Court for the Middle District

of Pennsylvania on December 15, 2004.

B.

On January 7, 2000, Montañez participated in a

Pennsylvania criminal sentencing hearing at which he

received a sentence of 5.5 to 20 years in prison. Montañez

was also ordered to pay restitution in the amount of $148.60,

a fine in the amount of $100, and the costs of the prosecution.

As with Hale, the costs portion of Montañez’s sentence was

not calculated until after the hearing. At no point did the

sentencing judge explain that the DOC had the authority to

automatically deduct 20% of Montañez’s inmate account to

pay these debts or otherwise refer to the DOC Policy.

Montañez asserts that he did not receive his 300B form

or any other notice as to the total amount of his court-ordered

3

The 300B is a form created by the DOC to assist it in

determining the total amount of court-ordered obligations

imposed on each inmate in the DOC system. The DOC

provides these forms to the Court of Common Pleas for the

county in which the inmate was sentenced. The Clerk of

Court for each county supplies the information and fills out

the form, which is then transmitted to the DOC.

8

obligations in time for him to move for reconsideration or file

a direct appeal from the District Court’s assessment of costs.

Montañez did, however, file an appeal with respect to his

conviction and sentence, and later filed petitions and other

requests to modify his amounts owed.

As with Hale, the parties disagree as to the full extent

of notice Montañez received regarding the DOC Policy upon

his intake to the DOC prison system. Montañez asserts that

he was never informed about the total amount of his court-

ordered obligations, never received a copy of his 300B form,

and was never informed about the DOC Policy. The

Corrections Officials, on the other hand, dispute each of these

claims. Both parties agree that the inmate handbook given to

Montañez upon his admission to the DOC system contained

no reference to the DOC policy. It is similarly undisputed

that Montañez had no opportunity to be heard before the

deductions commenced.

The DOC began deducting funds from Montañez’s

account pursuant to its policy on April 6, 2000. These

deductions continued until 2010, when Montañez’s debt was

satisfied. Montañez admits that he received an inmate

account statement every month, which included a debit

described as “Act 84 transaction.”

Montañez asserts that he was not aware of the import

of this description, or of Act 84 or the DOC policy, until

“sometime in 2002.” Upon learning of the significance of

these transactions, Montañez filed the first of a series of

grievances with the DOC on November 17, 2002. These

grievances were predicated on the fact that Montañez had not

received any hearing to determine if he was able to afford the

9

deductions, and questioned the lack of a court order

authorizing the deductions. The DOC rejected Montañez’s

grievance, stating that it would “continue to collect fines,

restitution and costs from” Montañez “unless the sentencing

court enters an order relieving” him from his obligations. On

May 19, 2003, Montañez petitioned his sentencing judge

seeking a copy of the order authorizing deductions from his

account. The court denied this request, indicating that it had

never entered an order initiating automatic deductions from

Montañez’s inmate account. Montañez filed this lawsuit in

the U.S. District Court for the Middle District of

Pennsylvania on November 29, 2004.

C.

This is the third time these cases have been before our

Court. In two previous appeals, we held that the allegations

in the complaints submitted by Hale and Montañez were

sufficient to state a claim that their due process rights were

violated. See Montañez v. Beard, 344 F. App’x 833 (3d Cir.

2009) (Montañez I); Hale v. Beard, 168 F. App’x 532 (3d Cir.

2006).

After post-remand discovery, the District Court

granted the Corrections Officials’ motion for summary

judgment on all claims. In particular, the District Court ruled

that: (1) Montañez’s claims were barred by the applicable

statute of limitations; (2) Hale received all process he was due

under the Constitution; and (3) the Corrections Officials were

entitled to qualified immunity from all claims for monetary

damages in any event. Plaintiffs appeal from that decision.

II.

10

This Court reviews “an award of summary judgment

de novo, applying the same test on review that the District

Court should have applied” and views the facts in the light

most favorable to the nonmoving party. Burns v. Pa. Dep’t of

Corr., 642 F.3d 163, 170 (3d Cir. 2011) (internal quotation

marks omitted). A court “shall grant summary judgment if

the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). Similarly, qualified

immunity “raises a purely legal issue” that this Court reviews

de novo. Burns, 642 F.3d at 170.

For the reasons stated below, we will reverse the

District Court’s order with respect to Hale’s due process

claim for injunctive relief. We will affirm on all other

grounds.

A.

Montañez argues that the District Court erred in

concluding that his procedural due process claim was barred

by the statute of limitations. The statute of limitations for a §

1983 claim arising in Pennsylvania is two years. Kach v.

Hose, 589 F.3d 626, 634 (3d Cir. 2009). The District Court

held that Montañez’s cause of action accrued, at the latest,

when he filed a grievance asserting that the deductions from

his account were “unconstitutional and a violation of due

process” on November 17, 2002. Because Montanez did not

file his complaint in this action until November 29, 2004, the

District Court concluded that Montañez’s claims were

untimely. We will affirm.

1.

11

The date of accrual in a § 1983 action is determined by

federal law. Kach, 589 F.3d at 634. Under federal law, a

cause of action accrues “‘when the plaintiff knew or should

have known of the injury upon which the action is based.’”

Id. (quoting Sameric Corp. v. City of Philadelphia, 142 F.3d

582, 599 (3d Cir. 1998)). Montañez argues that his cause of

action accrued on November 27, 2002, because this was the

date the DOC denied his grievance challenging the

deductions.

Montañez’s cause of action is based on the injury he

allegedly suffered when the DOC applied the DOC Policy to

his inmate account without due process. This Court has

previously noted with regard to deductions from inmate

accounts that an “alleged violation of [an inmate’s]

Fourteenth Amendment right to due process occur[s] at the

moment he was deprived of his property interest without

notice and a predeprivation hearing (i.e., when [prison]

employees seized the money in his inmate account).”

Higgins v. Beyer, 293 F.3d 683, 694 n.3 (3d Cir. 2002).

Following this rule, Montañez’s alleged injury occurred on

April 6, 2000, when the DOC first deducted funds from his

account.4 It was at this point that the DOC deprived

4

Montañez also argues that his cause of action did not accrue

until he should have known that his due process rights had

been violated. This is not correct; a cause of action accrues

upon “a plaintiff’s discovery of the actual, as opposed to the

legal, injury . . ..” Oshiver v. Levin, Fishbein, Sedran &

Berman, 38 F.3d 1380, 1386 (3d Cir. 1994). Montañez’s

actual injury occurred on the date that funds were deducted

from his inmate account.

12

Montañez of his property interests, allegedly without due

process. Montañez “knew or should have known of” this

injury within a month of the first deduction, as he received an

inmate account statement that reflected the debit from his

account. See Kach, 589 F.3d at 634. As a result, Montañez’s

claim accrued in April or May of 2000, and the statute of

limitations had expired by the time he filed his complaint in

this action.

2.

Montañez seeks to avoid application of the statute of

limitations by invoking the continuing violation doctrine.

Under that doctrine, “when a defendant’s conduct is part of a

continuing practice, an action is timely so long as the last act

evidencing the continuing practice falls within the limitations

period.” Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir.

2001) (internal quotation marks omitted).

There are several barriers that preclude Montañez from

invoking this doctrine. Initially, the continuing violation

doctrine does not apply when the plaintiff “is aware of the

injury at the time it occurred.” Morganroth & Morganroth v.

Norris, McLaughlin & Marcus, P.C., 331 F.3d 406, 417 n.6

(3d Cir. 2003). As we have just explained, Montañez was

aware of the relevant injury—the government seizure of

funds from his inmate account—very shortly after it occurred.

Despite this knowledge, Montañez failed to assert his rights

in a timely fashion.

Furthermore, Montañez’s argument that he suffered a

continuing violation is based on the fact that the DOC

continued to make deductions from his account. But a

“continuing violation is occasioned by continual unlawful

13

acts, not continual ill effects from an original violation.”

Weis-Buy Servs., Inc. v. Paglia, 411 F.3d 415, 423 (3d Cir.

2005) (emphasis added) (internal quotation marks omitted).

The DOC’s decision to enforce the DOC Policy against

Montañez and its first deduction from his prison account

constituted a discrete and independently actionable act, which

triggered Montañez’s obligation to assert his rights. The fact

that the DOC made subsequent deductions pursuant to the

DOC Policy does not make out a continuing violation. See

Cowell, 263 F.3d at 292–93.

3.

In addition to his arguments regarding accrual,

Montañez also argues that the statute of limitations should be

equitably tolled, either because the DOC “fraudulently

concealed its responsibility for the deductions” or because

Montañez engaged in the inmate grievance process to settle

his claims. We disagree, and find no basis to equitably toll

the statute of limitations.

Generally, “state tolling principles also govern § 1983

claims” unless they conflict with “federal law or policy.”

Kach, 589 F.3d at 639. “Pennsylvania’s fraudulent

concealment doctrine tolls the statute of limitations where

‘through fraud or concealment the defendant causes the

plaintiff to relax vigilance or deviate from the right of

inquiry.’” Mest v. Cabot Corp., 449 F.3d 502, 516 (3d Cir.

2006) (quoting Ciccarelli v. Carey Canadian Mines, Ltd., 757

F.2d 548, 556 (3d Cir. 1985)). Even if a plaintiff can

establish that the defendant engaged in fraudulent

concealment, the statute of limitations “begins to run when

the injured party knows or reasonably should know of his

14

injury and its cause.” Fine v. Checcio, 870 A.2d 850, 861

(Pa. 2005).

Montañez argues that the DOC “fraudulently

concealed its responsibility for the deductions” by suggesting

that he take his complaints about the deductions to his

sentencing court. The statements Montañez identifies,

however, were made in response to the grievances he filed

more than two years after his cause of action accrued. As a

result, any alleged fraud by the DOC could not possibly have

been the reason that Montañez delayed asserting his rights.

See Uber v. Slippery Rock Univ. of Pa., 887 A.2d 362, 366

(Pa. Commw. Ct. 2005). When he finally did file a

grievance, it requested “inmate account staff and business

office staffs [sic] to stop deducting 20% out of” the funds in

his account, which shows that Montañez was not confused

about the source of his injury. In other words, Montañez

waited over two years after learning of the deductions to take

any action to protect his rights. Montañez simply delayed too

long to take advantage of equitable tolling doctrines.5

5

Montañez also argues that the statute of limitations should

be tolled while he exhausted his administrative remedies.

Specifically, he argues that the limitations period should be

tolled from November 17, 2002, when he filed his first

grievance, until December 5, 2003, when the DOC denied his

last grievance. But Montañez’s claim accrued in April or

May of 2000. Thus, even if the administrative process could

toll the statute of limitations, the complaint would still be

untimely because Montañez waited too long to file his first

grievance.

15

In sum, the statute of limitations on Montañez’s claims

expired before he initiated this lawsuit, and no basis for

equitable tolling applies. We will therefore affirm the District

Court’s holding that Montañez’s claims are time-barred.6

Because there is no question that Hale’s due process claim

was timely filed, however, we will now consider the merits of

his appeal.

B.

To analyze a claim for procedural due process, a

court “must first ‘determine whether the nature of the interest

is one within the contemplation of the ‘liberty or property’

language of the Fourteenth Amendment.’” Evans v.

Secretary Pa. Dep’t of Corr., 645 F.3d 650, 663 (3d Cir.

2011) (quoting Newman v. Beard, 617 F.3d 775, 782 (3d Cir.

2010)). If the court determines that “the interest asserted is

protected by the Due Process Clause, the question then

becomes what process is due to protect it.” Newman, 617

F.3d at 783 (citation omitted) (internal quotation marks

omitted).

Both parties agree that inmates have a constitutional

property interest in funds held in prison accounts. See

Reynolds, 128 F.3d at 179. Thus, the only remaining question

on the merits of Hale’s due process claim is whether the

Corrections Officials provided sufficient process when they

6

Because we hold that Montañez’s claims are barred by the

statute of limitations, we need not consider his argument that

the District Court erred by failing to consider his claims under

the Equal Protection Clause of the Fourteenth Amendment.

16

implemented the DOC Policy and deducted funds from

Hale’s inmate account.

1.

Before turning to the merits of Hale’s due process

challenge, we wish to emphasize the narrowness of Hale’s

constitutional claim. Hale does not seek in this action to

challenge the final amount of fines, restitution, and costs

imposed against him by the sentencing judge in his state

criminal proceeding. Nor does he otherwise seek to

undermine the validity of his criminal sentence. Such a

challenge would not be cognizable in a § 1983 action unless

the prisoner could prove that he had previously obtained a

favorable termination of his state court criminal proceeding.

See, e.g., Heck v. Humphrey, 512 U.S. 477 (1994); Gilles v.

Davis, 427 F.3d 197, 208–09 (3d Cir. 2005). Further, Hale

does not suggest that any additional process must be given by

the Pennsylvania courts rather than DOC administrators. Cf.

Buck v. Beard, 879 A.2d 157 (Pa. 2005) (rejecting the

argument that the due process considerations require a

judicial default hearing before deductions may be made from

inmate accounts).

Instead, Hale’s due process claim is narrowly focused

on whether inmates must be provided with notice of the DOC

Policy and an opportunity to be heard regarding application of

the Policy prior to the first deduction,7 and, if they must,

7

As Hale’s counsel acknowledged during oral argument, Hale

seeks only notice and a single opportunity to be heard prior to

the first deduction. He does not argue that inmates must

17

whether the current procedures implemented by the

Corrections Officials are sufficient. It is to these narrow

issues that we now turn.

2.

The District Court ruled that the DOC’s post-

deprivation grievance procedures are sufficient to meet Hale’s

procedural due process rights, and that no pre-deprivation

hearing was required. We disagree and will reverse.

Procedural due process claims are governed by the

standard first enunciated in Mathews v. Eldridge, 424 U.S.

319, 335 (1976). Under that standard, a court is to weigh

three factors: (1) “the private interest that will be affected by

the official action”, (2) “the risk of an erroneous deprivation

of such interest through the procedures used” and the value of

“additional or substitute procedural safeguards”, and (3) the

governmental interest, “including the function involved and

the fiscal and administrative burdens that the additional or

substitute procedural requirements would entail.” Id.

State prisoners plainly have a property interest in the

funds in their inmate accounts. See, e.g., Reynolds, 128 F.3d

at 179. As other courts have held, however, this interest is

reduced because inmates “are not entitled to complete control

over their money while in prison.” See Mahers v. Halford, 76

F.3d 951, 954 (8th Cir. 1996). Further, the government has

receive notice and an opportunity to be heard prior to each

and every subsequent deduction.

18

an “important state interest” in collecting restitution, costs,

and fines from incarcerated criminal offenders to compensate

victims. See id. at 956.

The question remains, however, whether additional

pre-deprivation process would be effective and whether that

process would be overly burdensome on the government. As

a default matter, “[i]n situations where the State feasibly can

provide a predeprivation hearing before taking property, it

generally must do so regardless of the adequacy of a

postdeprivation tort remedy to compensate for the taking.”

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

the pre-deprivation safeguards “would be of use in preventing

the kind of deprivation alleged,” the state must provide such a

hearing. Id. at 139. We have previously applied this default

rule to state actions pursuant to “an established state

procedure” that would deprive inmates of the funds in their

inmate accounts. Higgins, 293 F.3d at 694; see also Burns v.

Pa. Dep’t of Corr., 642 F.3d 163, 171–73 (3d Cir. 2011).

Where pre-deprivation process is not feasible, this

default rule does not apply. Thus, in the “unusual case”

where “the value of predeprivation safeguards . . . is

negligible in preventing the kind of deprivation at issue,” the

state is not constitutionally required to provide any pre-

deprivation process. Zinermon, 494 U.S. at 129. Following

this rule, we have held that assessments against inmate

accounts to defray the costs of medical treatment, Reynolds,

128 F.3d 166, or the application of a fixed fee to defray the

costs of room and board, Tillman v. Lebanon County Corr.

Facility, 221 F.3d 410 (3d Cir. 2000), present the types of

situations where pre-deprivation hearings are impractical or

would be meaningless. Most pertinently, the court in Tillman

19

reasoned that a program involving “routine matters of

accounting, with a low risk of error,” requires no pre-

deprivation process. Id. at 422.

Taken together, these cases make clear that when pre-

deprivation process could be effective in preventing errors,

that process is required. See Burns, 642 F.3d 163; Higgins,

293 F.3d at 693–94. When deductions from inmate accounts

involve “routine matters of accounting” based on fixed fees or

where temporal exigencies require immediate action, pre-

deprivation hearings are not required. Tillman, 221 F.3d at

422; Reynolds, 128 F.3d at 180. In either event, however,

inmates are entitled to some pre-deprivation notice of the

prison’s deduction policy. See Reynolds, 128 F.3d at 180.

Applying this distinction, we find that the District

Court erred in determining that pre-deprivation process was

not constitutionally required. Unlike the cases in which we

have held that pre-deprivation process is unnecessary, there is

nothing about the DOC Policy that requires the DOC to take

immediate action to deduct funds from inmate accounts to

satisfy court-ordered obligations. Any short delay that might

result from offering inmates an opportunity to be heard on

application of the DOC Policy before it is applied would not

seriously undermine the Commonwealth’s ability to recover

costs.

The DOC Policy does not involve fixed assessments

that uniformly apply to all inmates. Each inmate in the DOC

system has a unique judgment, with individualized amounts

of court-ordered obligations. This case is thus unlike the

room-and-board assessments in Tillman, which were a fixed

$10 daily charge for each inmate. Tillman, 221 F.3d at 414.

20

For this reason, the DOC’s process of seeking deductions is

not a mere “accounting” issue that applies a fixed dollar

amount per day to each inmate. Id. at 422. It requires

individualized process to determine each inmate’s total cost

prior to the commencement of the deductions.

Further, additional pre-deprivation process would

mitigate at least some risk of error in the application of the

DOC Policy. Viewing the evidence in his favor, Hale did not

obtain individualized information as to how much he actually

owed for costs, fines, and restitution prior to deductions being

made. Hale had no opportunity to object to the total amounts

entered into the DOC system. In fact, Hale’s 300B form

erroneously inflated the amount of his court-ordered

restitution by nearly $800. This error might have been

prevented if Hale had been provided with a pre-deprivation

opportunity to review his personalized information and lodge

objections to the deductions. In other cases, a pre-deprivation

opportunity to object to the assessments might prevent

deductions from being made from funds exempt from the

DOC’s policy. See Higgins, 293 F.3d at 694 (suggesting that

a pre-deprivation hearing might have prevented prison

administrators from improperly seizing VA benefits).

Requiring that the DOC provide pre-deprivation

process need not be administratively burdensome. Other

jurisdictions have been able to implement pre-deprivation

process in similar circumstances. The State of Iowa, which

requires nearly all of its criminal offenders to pay restitution

while incarcerated, requires that prison administrators provide

“[w]ritten notice of the amount of the deduction . . . to the

inmate, who shall have five days after receipt of the notice to

submit in writing any and all objections to the deduction.”

21

Iowa Code § 904.702(1); see also Walters v. Grossheim, 525

N.W.2d 830, 832–33 (Iowa 1994) (holding that due process

considerations required similar procedures). In Ohio, prison

administrators must provide “notice to the inmate of the debt

and its intent to seize money from the inmate’s account,”

“inform the inmate of a right to claim exemptions,” and

provide the inmate with “an opportunity to assert any

exemption or defense” before any money may be withdrawn

from the account. State v. Peacock, 2003-Ohio-6772 (Ct.

App. 2003); see also Ohio Admin. Code 5120-5-03(C).

In sum, considering the factors required by Mathews,

the government’s interest in collecting restitution, fines, and

other costs from convicted criminals does not overcome the

default requirement that inmates be provided with process

before being deprived of funds in their inmate accounts. The

District Court therefore erred in holding that the DOC’s post-

deprivation grievance procedures were all that the

Constitution required.

3.

Having determined that no sufficient reason exists to

deviate from the default of pre-deprivation notice and an

opportunity to be heard, we now consider whether Hale

received sufficient process in this case. The Corrections

Officials argue that Hale’s sentencing hearing and subsequent

appellate rights provide all the pre-deprivation process Hale is

due. We disagree and hold that Hale’s sentencing hearing

was insufficient to satisfy the Due Process Clause of the

Fourteenth Amendment.

22

The Corrections Officials’ argument primarily relies

on the decision in Buck v. Beard, 879 A.2d 157, 161 (Pa.

2005). In Buck, the Pennsylvania Supreme Court held that

the Pennsylvania and federal Constitutions did not require the

DOC to obtain a judicial determination of ability to pay prior

to deducting funds from an inmate account. Id. at 159–60.

As the prior Third Circuit panel in this very case noted, the

“Court’s reasoning in Buck informs our analysis,” but “it is

not dispositive.” Montañez I, 344 F. App’x at 835.

The simple response to the Corrections Officials’

reliance on Buck is that we largely agree with that decision.

Pennsylvania need not provide an additional judicial hearing

for every inmate to determine ability to pay before making

deductions from their inmate account when the sentencing

court has already considered the inmate’s ability to pay when

entering the sentence. See 42 Pa. Cons. Stat. § 9726(d) (“In

determining the amount and method of payment of a fine, the

court shall take into account the financial resources of the

defendant and the nature of the burden that its payment will

impose.”). Hale’s challenge, however, is not that the DOC

must provide a judicial default hearing prior to the

commencement of inmate deductions. Rather, Hale argues

that, regardless of the source of the information, inmates must

be at least notified of the DOC Policy and the final amount of

costs to be deducted and be given an opportunity to be heard

on objections to the amounts prior to the deductions. Buck

simply does not address this argument.

Our prior cases make plain that the mere fact that an

inmate’s sentence includes a fine, coupled with a state statute

compelling prison administrators to deduct funds from the

inmate’s prison account, does not satisfy the requirements of

23

pre-deprivation due process. Higgins, 293 F.3d at 694. In

Higgins, we considered a similar cost recovery scheme in

New Jersey and held that the inmate had “alleged sufficient

facts to establish that he was entitled to a predeprivation

notice and hearing” despite the fact that he had an opportunity

to challenge the monetary portion of his judgment during

sentencing. Id. Similarly, the existence of a general statutory

provision and implementing regulations providing the DOC

with authority to collect funds from inmates’ accounts does

not satisfy the Commonwealth’s obligation to provide prior

notice and an opportunity to be heard to inmates regarding

deductions from inmate accounts. See Montanez I, 344 F.

App’x at 835–36 (“[A] general statement of financial

obligations and notice of the state’s ability to debit an

unspecified amount from an inmate account does not settle

the legal question of whether violations of due process

occurred . . ..”).

At a minimum, federal due process requires inmates to

be informed of the terms of the DOC Policy and the amount

of their total monetary liability to the Commonwealth. See

Higgins, 293 F.3d at 694. In particular, the DOC must

disclose to each inmate before the first deduction: the total

amount the DOC understands the inmate to owe pursuant to

the inmate’s sentence; the rate at which funds will be

deducted from the inmate’s account; and which funds are

subject to deduction. Further, inmates must have a

meaningful opportunity to object to the application of the

DOC Policy to their inmate accounts before the first

deductions commence. This opportunity to object is required

to protect against the possibility of error in the application of

the DOC Policy, such as mistakes in reporting of an inmate’s

total liability or to ensure that deductions are not made from

24

funds that are exempt. See Id. at 693 (Veterans

Administration disability benefits are not subject to deduction

to satisfy criminal fines).

To be clear, we do not suggest that the DOC must

provide each inmate with a formal, judicial-like hearing

before the onset of deductions. Moreover, we find nothing

substantively unreasonable about the DOC’s refusal to

provide exceptions to its across-the-board 20% rate of

deduction, in light of the fact that the DOC will not make

deductions when an inmate’s account falls below a certain

minimum. Because we find the deduction rate to be

reasonable, the DOC need not entertain a challenge to the rate

of deduction, though it must provide an opportunity for

inmates to object to potential errors in the deduction process.

We also do not mean to suggest that inmates must

have an opportunity to be heard prior to each deduction.

Rather, after providing the required initial notice the DOC

could provide inmates with an informal opportunity to supply

written objections to prison administrators prior to the first

deduction. See, e.g., Iowa Code § 904.702(1); Ohio Admin

Code 5120-5-03(C). We need not set forth specific

procedures, and the DOC retains discretion, consistent with

its constitutional obligations, to implement such procedures in

a flexible and cost-effective manner.

4.

Applying these principles to Hale’s case, there exist

genuine disputes of material fact that preclude summary

judgment for the Corrections Officials. First, Hale’s

sentencing hearing, standing alone, did not satisfy his federal

25

due process rights with regard to deductions pursuant to the

DOC Policy. See Montañez I, 344 F. App’x at 836. At no

point during the sentencing hearing was Hale ever informed

of the DOC Policy or of the fact that the DOC would

automatically deduct 20% of all funds to pay for the monetary

portion of Hale’s sentence. Second, the parties submitted

conflicting evidence as to the exact extent of the notice Hale

received regarding his sentence and the DOC Policy. The

Corrections Officials submitted a declaration asserting that

during new inmate orientation, Hale received an inmate

handbook that set forth “pertinent provisions” of the DOC

Policy, was orally informed of the Policy, and was shown an

orientation video that also included a description of the

Policy. Further, a document in the record from Hale’s

institutional file, dated prior to the first deduction from Hale’s

account, contains a form notice outlining the parameters of

the DOC Policy.

Although Hale admits that he received the inmate

handbook, he specifically denies that the DOC informed him

that funds would be taken from his account or the rate at

which it would be deducted. Notably, the inmate handbook

Hale received did not explain the 20% deduction rate. Hale

also specifically denies that he received any memo or other

notice regarding the DOC Policy. In addition, Hale states that

he only learned that funds would be deducted from his inmate

account after the first such deduction. There is also a dispute

of fact as to whether Hale was promptly informed of the total

amount of his criminal judgment because it was sent to his

home address while he was incarcerated. Moreover, the

Corrections Officials concede that Hale was not provided

with any opportunity to be heard before the DOC began

making deductions to his account.

26

Because disputes of fact exist regarding notice and

because Hale never had any opportunity to be heard prior to

being deprived of funds in his inmate account, we will reverse

the District Court’s order granting summary judgment to the

Corrections Officials.

C.

Hale also argues that the District Court erred in

holding that the DOC was entitled to qualified immunity with

regard to Hale’s claims for monetary relief. We will affirm

the District Court on this issue.

“Qualified immunity shields government officials from

suit even if their actions were unconstitutional as long as

those officials’ actions ‘d[id] not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.’” Burns, 642 F.3d at 176 (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (alteration in

original).

At the time that the deductions from Hale’s account

first occurred in February 2004, it was not clearly established

in this Court that the failure to provide prison inmates with a

pre-deprivation opportunity to object to automatic deductions

from their prison accounts violated the Due Process Clause.

In 2005, the Pennsylvania Supreme Court decided Buck v.

Beard, which could be read to suggest that a sentencing

hearing was the only pre-deprivation hearing constitutionally

required. 879 A.2d 157 (Pa. 2005). Further, earlier decisions

27

of our Court had held that, in some circumstances, post-

deprivation remedies were sufficient constitutional process

for deductions. See, e.g., Tillman, 221 F.3d at 422. For these

reasons, there was a sufficient lack of clarity in Third Circuit

and Pennsylvania case law regarding automatic deductions

that the Corrections Officials should be entitled to qualified

immunity in this case.

Hale also argues that certain of the defendants are not

entitled to qualified immunity because they performed only

ministerial functions. Some courts have held that government

officials conducting ministerial acts are not entitled to

qualified immunity. See, e.g., Groten v. California, 251 F.3d

844, 851 (9th Cir. 2001). Hale’s claim, however, is

predicated on the discretionary decision regarding the

necessity or not of a predeprivation hearing and the nature of

that hearing. Therefore, qualified immunity applies.

The fact that the defendants are entitled to qualified

immunity on Hale’s damages claim does not prevent this case

from moving forward on Hale’s claim for injunctive relief.

Hill v. Borough of Kutztown, 455 F.3d 225, 244 (3d Cir.

2006) (“[T]he defense of qualified immunity is available only

for damages claims—not for claims requesting prospective

injunctive relief.”). As a result, Hale may still proceed to trial

on his claim for injunctive relief.

III.

For the foregoing reasons, we will reverse the District

Court’s order to the extent that it granted summary judgment

to the Corrections Officials on Hale’s due process claim, and

will remand this case for further proceedings regarding Hale’s

28

claim for injunctive relief. We will affirm the District Court’s

order in all other respects.

29