Burns v. PA Dept Corr

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

9-19-2008

Burns v. PA Dept Corr

Precedential or Non-Precedential: Precedential

Docket No. 07-1678

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation

"Burns v. PA Dept Corr" (2008). 2008 Decisions. Paper 437.

http://digitalcommons.law.villanova.edu/thirdcircuit_2008/437

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No: 07-1678

RODNEY BURNS,

Appellant

v.

PA DEPARTMENT OF CORRECTION;

SCI-GRATERFORD;

SECRETARY JEFFREY A. BEARD, PH.D.; DONALD

WILLIAMSON;

DAVID DIGUGLIELMO; THOMAS DOHMAN; MARY

CANINO; JOHN DOES(S);

CONFIDENTIAL INFORMANT #1; CONFIDENTIAL

INFORMANT #2;

ROBERT S. BITNER; LEVI HOSBAND; FRANK REGAN;

TONY WOLFE

Appellees

On appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 05-cv-3462

District Judge: The Honorable Berle M. Schiller

Argued April 9, 2008

Before: SMITH, HARDIMAN, and COWEN, Circuit Judges.

(Filed September 19, 2008)

___________________________

Jeffrey M. Boerger (Argued)

Stan S. Kuruvilla

Jane Lee Huang

Drinker Biddle & Reath LLP

One Logan Square

18th & Cherry Streets

Philadelphia, PA 19103-6996

Counsel for Appellant

Claudia M. Tesoro (Argued)

Calvin R. Koons

John G. Knorr, III

Attorney General

21 South 12th Street; Third Floor

Philadelphia, PA 19107

Counsel for Appellees

OPINION

SMITH, Circuit Judge.

2

The Hohfeldian issue presented in this appeal requires us

to determine whether a disciplinary conviction directing that an

inmate’s institutional account be assessed for medical or other

expenses implicates a property interest sufficient to trigger the

protections of procedural due process.1 Appellant Rodney

Burns (“Burns”), while an inmate at SCI-Graterford, a

Pennsylvania prison, was accused of assaulting fellow inmate

Charles Mobley. At the conclusion of a prison misconduct

1

Although neither party cited his work, we view our task as

“Hohfeldian” because Professor Wesley N. Hohfeld is generally

regarded as the first modern proponent of a relational

understanding of property rights. See Wesley N. Hohfeld, Some

Fundamental Legal Conceptions as Applied in Judicial

Reasoning, 23 YALE L.J. 16 (1913). As one legal commentator

has put it, “[Hohfeld] develop[ed] the now standard idea that

property comprises a complex aggregate of social and legal

relationships made up of rights, privileges, powers, and

immunities. . . . The Hohfeldian view moved quickly from legal

theory into the 1936 Restatement of Property and from there

into mainstream scholarship and judicial decisionmaking.”

Michael Heller, The Boundaries of Private Property, 108 YALE

L.J. 1163, 1191–92 (1999). The “bundle of rights” theory of

property, however, may actually date back even further, to the

late 1800s. Id. at 1191 n.146 (“The earliest use of the term

‘bundle of rights’ appears to be from John Lewis, in his 1888

book, A Treatise on the Law of Eminent Domain: ‘The dullest

individual among the people knows and understands that his

property in anything is a bundle of rights.’”) (citation omitted).

3

proceeding, Hearing Examiner Mary Canino determined that

Burns had committed the assault in question and ordered him to

serve 180 days in disciplinary custody and to forfeit his prison

job. Additionally, and of primary interest on appeal, she

assessed Burns’ inmate account “for Medical or other Expenses”

associated with Mobley’s condition after the assault.

Burns unsuccessfully appealed the disciplinary decision

to a three-member Program Review Committee, to the

Superintendent of the facility, and finally to the Chief Hearing

Examiner in the Office of Chief Counsel. On July 6, 2005,

Burns filed a pro se complaint asserting due process and

retaliation claims against the Pennsylvania Department of

Corrections and certain named prison officials (collectively, the

“Department of Corrections”) arising out of the prison’s

disciplinary proceedings. The District Court appointed counsel

and, on January 5, 2007, the parties filed cross-motions for

Summary Judgment. On February 6, 2007, the District Court

denied Burns’ motion for Partial Summary Judgment and

granted the Department of Corrections’ motion for Summary

Judgment.

The District Court stressed that it had “serious concerns

that Defendants’ actions would not satisfy even those minimal

due process requirements [guaranteed to persons in prison].”

Burns v. PA Dept. of Corrections, No. 05-cv-3462, 2007 WL

442385, at *7 n.2 (E.D. Pa. 2007). Nonetheless, the Court held

that Burns was not entitled to such due process protections

because he failed to show a deprivation of a cognizable liberty

4

or property interest. This timely appeal followed.

Because we believe that the Department of Corrections’

assessment of Burns’ inmate account constituted the impairment

of a cognizable property interest, we will reverse the District

Court’s February 6, 2007 order granting summary judgment and

remand the case for further proceedings.2

I.

In February of 2005, Burns was accused of assaulting a

fellow inmate, Charles Mobley (“Mobley”), by throwing

scalding water at Mobley’s face. Prison officials did not

become aware of Mobley’s injuries until four days after they

occurred, when corrections officers noticed that Mobley had

sustained minor burns to his face. A nurse at the facility treated

2

For the sake of clarity, we note that the Supreme Court has

held that the impairment of property rights, even absent the

permanent physical deprivation of property, is often sufficient

to trigger due process protections. See, e.g.,Connecticut v.

Doehr, 501 U.S. 1, 12 (1991) (“[T]he State correctly points out

that these effects do not amount to a complete, physical, or

permanent deprivation of real property . . . . But the Court has

never held that only such extreme deprivations trigger due

process concern. To the contrary, our cases show that even the

temporary or partial impairments to property rights that

attachments, liens, and similar encumbrances entail are

sufficient to merit due process protection.”).

5

Mobley’s injuries, cleaned his burn, applied triple antibiotic

ointment, and administered a Tetanus shot. The record does not

indicate that Mobley received or requested any additional

medical attention.

After he received treatment for his injuries, Mobley

originally identified his assailant as one of the inmates in

BA-1022, a cell shared by Ricky Holmes and Walter Dixon.

During the investigation that followed, the facility’s Security

Captain, Thomas Dohman (“Dohman”), interviewed Holmes

and placed him in Administrative Custody status while the

investigation continued. Thereafter, the Security Department at

the facility received two “hotline” calls regarding the incident

through a special phone line set up to allow trusted inmates to

relay sensitive information. Both of these confidential

informants stated that Holmes was not responsible for the

assault and that Burns had thrown hot water on Mobley after

Mobley engaged in shadow-boxing around Burns.

Dohman indicated that he viewed these reports as

credible because (1) he recognized the informants’ voices and

had received reliable information from them in the past; and (2)

Lt. Abdul Ansari (“Ansari”) separately told him that other

inmates had reported to Ansari that Burns was responsible for

the assault. After receiving this information, Dohman

interviewed Burns and concluded that Mobley—who was

apparently “semi-incoherent” at times—had mixed up Holmes

and Burns in his original identification. Accordingly, Dohman

placed Burns in Administrative Custody and continued the

6

investigation. At that point, Dohman received an anonymous

letter saying that he had locked up the “right guy.” The record

does not reflect who wrote the letter, but Dohman believed it

was someone other than the two confidential informants who

originally identified Burns as the assailant.

On March 7, 2005, Dohman issued a Misconduct Report

that charged Burns with assault in connection with the February

10, 2005 incident. The Misconduct Report alerted Burns to the

charges against him and indicated that they were primarily based

upon information from confidential informants who witnessed

him commit the assault. The Report also stated that other

inmates had informed Lt. Ansari that Burns had committed the

assault. Consistent with facility procedure, prison officials

provided Burns with blank forms, along with the Misconduct

Report itself, to allow him to request the presence of up to three

hearing witnesses (one of whom could be a staff member) and

draft his own version of events. Burns submitted a witness

request form asking Mobley to testify.

On March 10, 2005, Hearing Examiner Mary Canino

convened Burns’ misconduct hearing. Burns pleaded not guilty

to all charges and submitted his written version of events, which

denied any involvement in the assault and requested a review of

the Day Room videotapes where the assault occurred. Examiner

Canino adjourned the hearing to obtain the videotapes, which

she ultimately discovered did not exist. Canino then spoke with

Dohman, in camera, to determine the reliability of the

confidential informants whose information figured in the

7

Misconduct Report. Canino did not request the direct testimony

of the informants, nor did she review their written statements.

Canino summoned Mobley to testify, but Mobley indicated he

was unwilling to do so, even in camera.

Canino reconvened the proceedings against Burns and

informed him that (1) she was satisfied that the confidential

informants’ information referenced in the misconduct report was

credible based upon her in camera conversation with Dohman;

(2) no videotapes existed; and (3) Mobley had refused to testify.

Burns, who contends that he was in a state of disbelief, did not

offer any further defense. Canino then issued a four-page

handwritten decision, in which she determined—by a

preponderance of the evidence—that Burns had committed the

assault in question. Accordingly, she ordered him to serve 180

days in Disciplinary Custody and to forfeit his prison job.

Additionally, she assessed his inmate account “for [Mobley’s]

Medical or other Expenses.”

II.

Before we address the merits of Burns’ appeal, we must

consider our own jurisdiction. On April 10, 2008, following

oral argument in the case, the Department of Corrections sent a

letter to Burns purporting to declare that it would not take any

steps to deduct any money from his inmate account as a result

of the Mobley incident. The Department of Corrections thus

contends that we lack appellate jurisdiction because any due

process claim was rendered moot after this letter was issued.

8

Such assurances, they argue, eliminated any “cloud” that

lingered over Burns’ inmate account, and therefore also

addressed the “basis for Burns’ argument to this court, regarding

the alleged impairment of his right to security in his inmate

account.” We cannot agree.

Article III of the U.S. Constitution provides that the

“judicial Power shall extend to . . . Cases . . . [and] to

Controversies.” U.S. CONST. ART. III, § 2. As we have

explained, “[t]his grant of authority embodies a fundamental

limitation restricting the federal courts to the adjudication of

‘actual, ongoing cases or controversies.’” County of Morris v.

Nationalist Movement, 273 F.3d 527, 533 (3d Cir. 2001)

(citations omitted). “‘[A] case is moot when the issues

presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome.’” Donovan ex rel. Donovan

v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 216 (3d Cir.

2003) (quoting Powell v. McCormack, 395 U.S. 486, 496

(1969)). Further, a “court’s ability to grant effective relief lies

at the heart of the mootness doctrine. That is, ‘[i]f developments

occur during the course of adjudication that eliminate a

plaintiff’s personal stake in the outcome of a suit or prevent a

court from being able to grant the requested relief, the case must

be dismissed as moot.’” Id. (citations omitted).

“[A]s a general rule, [however,] ‘voluntary cessation of

allegedly illegal conduct does not deprive the tribunal of power

to hear and determine the case, i.e., does not make the case

moot.’” Los Angeles County v. Davis, 440 U.S. 625, 631 (1979)

9

(internal citations omitted). To be sure, “jurisdiction, properly

acquired, may abate if . . . (1) it can be said with assurance that

‘there is no reasonable expectation . . .’ that the alleged violation

will recur, and (2) interim relief or events that have completely

eradicated the effects of the alleged violation.” Id. However, it

is only “[w]hen both [these] conditions are satisfied . . . that the

case is moot . . . .” Id.

The Department of Corrections argues that its voluntary

promise to refrain from the future seizure of funds from Burns’

inmate account, in a letter submitted more than three years after

it originally assessed that account for medical and other fees,

obviates Burns’ interest in the case. Such an argument

fundamentally misreads the nature of Burns’ due process claims.

“In procedural due process claims, the deprivation by state

action of a constitutionally protected interest in ‘life, liberty, or

property’ is not in itself unconstitutional; what is

unconstitutional is the deprivation of such interest without due

process of law.” Zinermon v. Burch, 494 U.S. 113, 125 (1990).

Accordingly, a procedural due process violation is complete at

the moment an individual is deprived of a liberty or property

interest without being afforded the requisite process. In this

case, Burns’ injury was therefore complete at the time that his

account was originally assessed if we assume that (1) the

Department of Corrections impaired a cognizable property

interest by virtue of the assessment and (2) the disciplinary

process failed to afford him sufficient process.

On that basis alone, the Department of Corrections’

10

suggestion of mootness fails. A completed violation, if proven,

would entitle Burns to at least an award of nominal damages.

Moreover, because of the belated nature of the

assurance—which was offered more than three years after the

original disciplinary hearing and only after oral argument was

heard in this case—it is possible that Burns is entitled to a more

than nominal award as compensation for the time that his inmate

account operated under a cloud. At most, the Department of

Corrections’ April 10, 2008 letter serves to stop the clock on

potential damages. As such, we see no evidence that the

Appellees’ assurances “have completely eradicated the effects

of the alleged violation.” Davis, 440 U.S. at 631.

Additionally, the timing and content of the

Commonwealth’s letter give us pause in considering whether

“‘there is no reasonable expectation . . .’ that the alleged

violation will recur . . . .” Id. Again, the Department of

Corrections’ assurances were provided exceedingly late in the

game. This by no means establishes that it would resume

pursuit of the assessment at the conclusion of litigation. But we

are more skeptical of voluntary changes that have been made

long after litigation has commenced. See DeJohn v. Temple

University, No. 07-cv-2220, 2008 WL 2952777, at *3 (3d Cir.

2008). That is especially true where, as here, an assertion of

mootness would serve to preserve a party’s favorable ruling

before the District Court. As the Supreme Court has instructed,

“[o]ur interest in preventing litigants from attempting to

manipulate the Court’s jurisdiction to insulate a favorable

decision from review further counsels against a finding of

11

mootness here.” City of Erie v. Pap’s A.M., 529 U.S. 277, 288

(2000).

We also find it significant that the letter in question is

neither sworn nor notarized, and fails to detail the basis for the

author’s authority. The latter point is relevant, in particular,

because Burns argued on appeal that the Department of

Corrections is required by law to deduct the type of fees at issue

in this case. Such lack of specificity, along with the fact that the

Department of Corrections urges us to refrain from vacating the

favorable decision entered by the District Court, counsels

against the conclusion that the Appellees have met the “‘heavy,’

even ‘formidable’ burden” that a party alleging mootness must

bear. United States v. Gov’t of Virgin Islands, 363 F.3d 276,

285 (3d Cir. 2004).

Standing alone, Burns’ allegation of a completed

procedural due process claim is sufficient to defeat any assertion

of mootness. The timing and content of the Department of

Corrections’ assurances similarly counsel in favor of

jurisdiction, given the stringent burden that must be met to

demonstrate mootness based upon a party’s voluntary cessation

of purportedly illegal conduct. United States v. Concentrated

Phosphate Export Ass’n, 393 U.S. 199, 203 (1968) (“The test

for mootness in cases [involving voluntary cessation of illegal

conduct] . . . is a stringent one.”). Accordingly, we are well

satisfied of our jurisdiction.

III.

12

The District Court had jurisdiction over this case

pursuant to 28 U.S.C. §§ 1331 and 1343. We exercise appellate

jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the

District Court’s grant of summary judgment is plenary. Carter

v. McGrady, 292 F.3d 152, 157 (3d Cir. 2002). Summary

judgment is proper where “there is no genuine issue as to any

material fact and . . . the movant is entitled to judgment as a

matter of law.” FED.R.CIV.P. 56(c). We must draw all

reasonable inferences from the underlying facts in the light most

favorable to the nonmoving party. Bailey v. United Airlines,

279 F.3d 194, 198 (3d Cir. 2002); Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986).

IV.

Burns argues that the District Court erred by concluding

that the Department of Corrections’ actions did not constitute a

deprivation of a protected property interest for purposes of his

procedural due process claim. The Fourteenth Amendment

provides that no “State [shall] deprive any person of life, liberty,

or property, without due process of law.” U.S. Const. amend.

XIV, § 1. To prevail on a procedural due process claim, a

litigant must show (1) that the state deprived him of a protected

interest in life, liberty, or property and (2) that the deprivation

occurred without due process of law. Ky. Dep't of Corr. v.

Thompson, 490 U.S. 454, 460 (1989); Reynolds v. Wagner, 128

F.3d 166, 179 (3d Cir. 1997). Burns does not allege any liberty

violation. As such, the sole issue on appeal is whether the

Department of Corrections impaired a protected property

13

interest for purposes of procedural due process.3

3

At the outset, we note that determining what constitutes the

impairment of a protected property interest for purposes of due

process—as we must do here—is a distinct inquiry from

determining what constitutes a taking for purposes of the

Takings Clause. “Although there are similarities between the

private interests that are ‘property’ under the Takings and Due

Process Clauses, the two clauses are not coterminous regarding

the definition of property.” John G. Laitos, LAW OF PROPERTY

RIGHTS PROTECTION: LIMITATIONS ON GOVERNMENTAL

POWER, § 9.04 (Supp. 2001). Five Justices explicitly recognized

this distinction in Eastern Enterprises v. Apfel, 524 U.S. 498

(1998), which involved both a takings and a due process

challenge to a federal statute that sought to impose retroactive

liability on companies by requiring them to provide retirement

benefits for past employees.

In Eastern Enterprises, a plurality of the Court, including

Justices O’Connor, Scalia, Thomas, and then–Chief Justice

Rehnquist, concluded that the statute constituted a taking. The

four dissenting Justices—Breyer, Stevens, Ginsburg, and

Souter—as well as Justice Kennedy, who wrote a separate

concurring and dissenting opinion, disagreed and concluded that

the statute did not impair an identifiable “property” interest for

purposes of the Takings Clause. Id. at 539–40. Of greater

importance for purposes of this case, however, both Justice

Kennedy and the dissenting Justices recognized that

notwithstanding their conclusion that no identifiable property

interest had been impaired, the statute might still run afoul of the

Due Process Clause. Indeed, Justice Kennedy concluded that

the Act in question did violate Due Process. As Justice Breyer

14

“Property interests, of course, are not created by the

Constitution. Rather they are created and their dimensions are

defined by existing rules or understandings that stem from an

instructed in his dissent, a distinction between what constitutes

“property” for purposes of the Due Process and Takings Clauses

makes sense because:

[A]pplication of the Due Process Clause [does

not] automatically trigger the Takings Clause, just

because the word ‘property’ appears in both. That

word appears in the midst of different phrases

with somewhat different objectives, thereby

permitting differences in the way in which the

term is interpreted.

Id. at 557.

This distinction is particularly important where, as here,

a litigant alleges the impairment of a particular ‘right’ out of

their ‘bundle,’ because “[w]hen courts consider whether

property has been ‘taken,’ the entire bundle of rights must be

considered the applicable ‘property[,]’ [whereas] . . . the

‘property’ that is protected by due process includes any

subsidiary property ‘right’ within the bundle of rights.” Laitos,

supra, at § 5.02[B]. “‘Property’ as used in the Takings Clause

is defined much more narrowly than in the due process clause.

Thus, while certain property interests may not be taken without

due process, they may be taken without just compensation.”

Laitos, supra, at § 9.04. We keep this distinction in mind as we

address Burns’ instant procedural due process claim.

15

independent source such as state law-rules or understandings

that secure certain benefits and that support claims of

entitlement to those benefits.” Bd. of Regents of State Colleges

v. Roth, 408 U.S. 564, 577 (1972); see also Phillips v.

Washington Legal Found., 524 U.S. 156, 163–64 (1998). Thus,

courts must look to state law to determine whether a particular

claim of right is sufficient to constitute a property interest for

purposes of the Due Process Clause. Logan v. Zimmerman

Brush Co., 455 U.S. 422, 430 (1982) (“The hallmark of property

. . . is an individual entitlement grounded in state law.”); Roth,

408 U.S. at 577. As an initial matter, it is clear that “[i]nmates

have a property interest in funds held in prison accounts.”

Reynolds, 128 F.3d at 179. Accordingly, “inmates are entitled

to due process with respect to any deprivation of money [from

their accounts].” Higgins v. Beyer, 293 F.3d 683, 693 (3d Cir.

2002) (citations omitted). Burns does not, however, allege a

seizure of any funds from his account. Instead, he argues that

the Department of Corrections’ assessment of his inmate

account for “Medical and other Expenses,” even absent any

attempt to seize the funds, deprived him of his “right to

security” in that account.

The Department of Corrections argues that this Court, as

well as other courts of appeals, have implicitly rejected this

argument in a line of cases recognizing that an actual seizure of

funds from an inmate’s account is sufficient to establish a

property deprivation. For example, they cite to Higgins v.

Beyer, 293 F.3d 683 (3d Cir. 2002), where this Court held that

the deprivation of a property interest occurred at the moment

16

prison officials seized money from an inmate’s account. Such

an argument misreads Higgins and other similar cases, which

dealt with obvious physical seizures of property from inmates’

accounts and, as a result, did not require a court to reach the type

of argument that is advanced here. To be sure, those cases

established that a physical seizure of funds from an inmate’s

account is sufficient to constitute the impairment of a property

interest, but they did not establish that such a seizure is

necessary. As such, no court has either accepted or rejected the

argument that Burns advances in this case.4 It appears to be an

issue of first impression across the courts of appeals.

The right to security has its roots in the “bundle of rights”

theory of property, which both the Supreme Court and the Third

Circuit have embraced in numerous cases over the last seventy

years. See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 393

4

Our dissenting colleague begins his separate opinion, not

inappropriately–indeed, to some effect–by quoting an oral

argument exchange between the author of this opinion and

counsel for Burns. Dissenting Op. at 1. To be sure, this prelude

to the dissent demonstrates some tension between the majority’s

holding and a line of questioning developed during argument.

In reply, we can only harken back to words of Winston

Churchill when confronted with a similar dilemma: “During a

long life I have had to eat my own words many times, and I have

found it a very nourishing diet.” See David Cannadine, In

Churchill's Shadow: Confronting the Past in Modern Britain

(2003).

17

(1994) (“As we have noted, this right to exclude others is ‘one

of the most essential sticks in the bundle of rights that are

commonly characterized as property.’”); Hodel v. Irving, 481

U.S. 704, 716 (1987) (“In Kaiser Aetna v. United States . . . we

emphasized that the regulation destroyed ‘one of the most

essential sticks in the bundle of rights that are commonly

characterized as property—the right to exclude others.’”);

Andrus v. Allard, 444 U.S. 51, 65–65 (1979) (referencing a

bundle of rights as part of takings analysis); Henneford v. Silas

Mason Co., 300 U.S. 577, 582 (1937) (“The privilege of use is

only one attribute, among many, of the bundle of privileges that

make up property or ownership.”); Flagg Bros., Inc. v. Brooks,

436 U.S. 149, 160 n.10 (1978) (referencing a bundle of rights as

part of due process analysis); Keystone Bituminous Coal Ass’n

v. Duncan, 771 F.2d 707, 716 (3d Cir. 1985) (referencing bundle

of rights as part of takings analysis). Building on the “bundle of

rights” theory, Burns argues that the Department of Corrections’

assessment of his institutional account, even absent an attempt

to deduct funds from it, constitutes an impairment of a right

generally recognized as one of the incidents of ownership

contained in the “bundle.” Specifically, Burns contends that the

Appellees’ actions impaired his right to security in his inmate

account, and thereby impaired his protected property interest in

the account itself.

Because we are aware of no precedential authority

addressing the right to security, we turn to other sources. Legal

philosopher A.M. (Tony) Honoré, a professor at the University

of Oxford, has identified a right to security as one of the eleven

18

“standard incidents” of property ownership, stating in pertinent

part:

Ownership comprises the right to possess, the

right to use, the right to manage, the right to the

income of the thing, the right to the capital, the

right to security, the rights or incidents of

transmissibility and absence of term, the

prohibition of harmful use, liability to execution,

and the incident of residuarity: this makes eleven

leading incidents.

A.M. Honore, Ownership, in OXFORD ESSAYS IN

JURISPRUDENCE 107 (A.G. Guest, ed. 1961), reprinted in Tony

Honoré, MAKING LAW BIND: ESSAYS LEGAL AND

PHILOSOPHICAL (1987) (emphasis added). By and large, legal

commentators appear to have accepted Honoré’s list of the

incidents of property ownership as the basis for modern

ownership. See, e.g., Alan Ryan, PROPERTY 54 (1987) (“[a]

legal order recognizes ownership in the full modern sense when

[Honoré's 11 incidents] are assigned to a single person.”);

Abraham Bell & Gideon Parchomovsky, A Theory of Property,

90 CORNELL L. REV. 531, 543–46 (2005) (“A.M. Honoré played

a decisive role in advancing the bundle of rights metaphor by

cataloguing a generally accepted list of the “incidents” of

property or ownership.”); Denise R. Johnson, Reflections on the

Bundle of Rights, 32 VT. L. REV. 247 (Winter 2007) (“In the

early 1960s, A. M. Honoré wrote an essay on ownership in

which he attempted to list the incidents of ownership that have

19

come to be known as the bundle of rights.”). Burns focuses on

Honoré’s sixth incident of property ownership, the right of

security, which Lawrence Becker has defined as “immunity

from expropriation.” Lawrence C. Becker, PROPERTY RIGHTS:

PHILOSOPHIC FOUNDATIONS 19 (1977). More specifically,

Honoré instructs that:

An important aspect of the owner’s position is

that he should be able to look forward to

remaining owner indefinitely if he so chooses and

if he remains solvent . . . . Legally, this is in

effect an immunity from expropriation, based on

rules which provide that, apart from bankruptcy

and execution for debt, the transmission of

ownership is consensual.

Honoré, Ownership, supra at 171.

Applying that concept here, Burns argues that the

assessment of his account constituted a threat of expropriation

and thereby impaired his right to security in his inmate account.

Moreover, Burns contends that the assessment placed the

Department of Corrections in a position analogous to that of a

Judgment Creditor and clearly deprived him of a protected

property interest for purposes of his procedural due process

claim. The Appellees correctly argue that this analogy is

imperfect because the amount of the assessment has never been

firmly established. We agree with Burns, however, that the

Department of Corrections acquired something similar to a

20

money judgment5 by assessing his inmate account.

The Supreme Court of Pennsylvania has recognized that

a money judgment constitutes property in its own right. In In re

Upset Sale, Tax Claim Bureau of Berks County, 479 A.2d 940

(Pa. 1984), the Supreme Court of Pennsylvania reaffirmed that

“a judgment is property and that a judgment creditor’s interest

cannot be deprived without due process of law.” Id. at 944

(citing Pennsylvania Co. v. Scott, 29 A.2d 328 (Pa. 1942). In

reaching that conclusion, the court noted that “judgment

creditors are interested in the property of the debtor . . . because

they have a right to seize it, sell it, and satisfy the debt from the

proceeds of the sale.” Id. Indeed, the court instructed further

that “[i]t is this very right of execution which gives a judgment

lien its effectiveness and great value.” Id. We find this decision

significant for two reasons.

First, the legal right obtained by the Department of

Corrections through its assessment of Burns’ account mirrors

the interest held by a Judgment Creditor under Pennsylvania

law. Again, the Department of Corrections is correct that this

analogy is technically imperfect. For example, the amount of

5

The Appellees chose not to directly address the merits of

Burns’ Judgment Creditor analogy in their Brief. Instead, they

argued that they do not literally constitute a judgment creditor

as that term is defined. Significantly, even the Appellees

concede in their Brief that the “DOC may have obtained

something akin to a judgment . . . .”

21

the assessment has never been firmly established, as is required

for perfection of a money judgment. But such an argument is

largely beside the point. If anything, the differences between

the Department of Corrections’ assessment interest and a

traditional money judgment demonstrate that the former is

stronger than the latter.

With respect to the amount of the assessment, for

example, the Department of Corrections—unlike a putative

Judgment Creditor—controls the process through which the

amount of medical expenses will be determined.6 As such, they

6

The Dissent argues that the interest the Department of

Corrections acquired through its assessment of Burns’ account

was not akin to a money judgment because Burns is entitled to

a “Holloway hearing” before the amount of the assessment can

be reduced to a liquidated sum. Dissenting Op. at 10. Where an

inmate has been found guilty of misconduct and has been

ordered to pay for a financial loss or cost resulting from a

violation of written rules governing inmate behavior, the

facility’s Business Manager is required by regulation to

calculate the amount in question. At that point, the Department

of Corrections is required to deliver a Notice of Assessment for

Misconduct to the inmate. The inmate can then challenge the

amount of cost established in the Notice of Assessment for

Misconduct by requesting a so called “Holloway hearing.” See

Holloway v. Lehman, 671 A.2d 1179, 1180-82 (Pa. Commw. Ct.

1996). However, the inmate may not contest his guilt or

innocence at such a hearing. See A. 34 (Department of

Corrections Inmate Discipline Policy). Moreover, in this case,

22

possess the unilateral authority to reduce their assessment to a

specific dollar amount. Similarly, the Department of

Corrections need not rely on third party enforcement of their

assessment interest. Instead, they physically control Burns’

institutional account and can deduct any assessed fees without

resort to an intermediary. To the extent that the Department of

Corrections’ assessment interest differs from that of a traditional

Judgment Creditor, those differences show that the Department

of Corrections’ interest is actually the stronger and more readily

collectable legal right.

Second, the Pennsylvania Supreme Court’s recognition

of a money judgment as “property” is significant because a

corollary to a Judgment Creditor’s right of execution is a

necessary and inevitable diminution in the economic value of a

debtor’s property. The use of economics in legal analysis has

increased exponentially over the last three decades, with the

advent of the law and economics movement. See Carrie

Menkel-Meadow, Taking Law and _____Really Seriously:

Before, During, and After “The Law,” 60 VAND. L. REV. 555,

568–70 (2007) (describing the rise of the law and economics

movement as a “big bang” in the history of legal studies).

Resort to basic economic theory here is not intended, however,

to imply that all legal questions should be viewed through a

“law and economics” lens. See Charles J. Goetz, LAW AND

neither the fact nor cost of Mobley’s treatment—although not

yet formally determined—is a disputed issue.

23

ECONOMICS: CASES AND MATERIALS 4 (1984) (“Economic

analysis is not a single great searchlight that will penetrate and

illuminate every nook and cranny of the law, but neither is any

other ‘approach,’ whether it be rooted in ethics, sociology, legal

history, or some other discipline that can be brought to bear on

legal problems.”). We do believe, however, that “certain

conceptual tools created by economists for the analysis of

explicitly economic transactions can usefully be adapted to the

legal environment.” Id. Moreover, where a legal issue contains

an explicitly economic component, as does the instant case, the

“language of economics” is not simply useful but highly

germane because it allows us to objectively measure and

describe the economic result of a particular action.

With both the utility and limitations of applying

economic theory to legal analysis clearly in mind, we note that

the most basic of economic principles teaches that property

subject to seizure—even if the probability and timing of such a

seizure is unknown—possesses a lesser present day economic

value than property not so encumbered. In economic terms, the

“expected value” of an account, for example, decreases

depending upon the probability that its funds will be seized in

the future. See Andreu Mas-Colell et al., MICROECONOMIC

THEORY 168–94 (1995) (providing a general discussion of

expected value theory); see also Hal R. Varian,

MICROECONOMIC ANALYSIS 194–95 (3d ed. 1992).

Mathematically, the expected value of an account that is

currently worth V but is subject to seizure would therefore equal

P*(V) + (1–P)*(V– the amount seized), where ‘P’ equals the

24

probability that the seizure will not be effectuated. Mas-Colell,

supra, at 168–94.

Similarly, the “expected utility” of Burns’ account is

also reduced based upon the probability of seizure.7 The

expected utility theory seeks to measure what an asset, such as

Burns’ institutional account, is “worth,” i.e. what one would pay

to buy it. As with expected value, the expected utility of an

asset can also be expressed mathematically. Here, we again

assume that the value of the account is equal to ‘V’ and the

probability of seizure equals ‘P.’ The expected utility (‘U’) then

equals P*U(V) + (1–P)*U(V–the amount seized). See Lucas,

supra note 4, at 1429–45.

In the context of real property, a simple example of the

relationship between an asset’s value or utility and the threat of

expropriation can be seen in the divergent market values of an

estate held in fee simple versus an estate held subject to an

encumbrance. As with the estate subject to an encumbrance, the

economic value of Burns’ institutional account was reduced at

the time of the Department of Corrections’ assessment and

remained impaired for upwards of three years. To borrow from

7

Asset pricing literature suggests that expected utility theory

is the appropriate way to measure the “value” of an asset. See

Robert E. Lucas, Jr., Asset Prices in an Exchange Economy, 46

ECONOMETRICA 1429–45 (Nov. 1978); see also Lars Ljungqvist

and Thomas J. Sargent, RECURSIVE MACROECONOMIC THEORY

(MIT Press, Cambridge, MA, 2000).

25

Professor Honoré, an “important aspect of the owner’s position

is that he should be able to look forward to remaining owner

indefinitely if he so chooses . . . .” Honoré, Ownership, supra

at 171. Burns was denied that aspect of ownership, and was

therefore faced with either constantly spending down his

account, or potentially losing a portion of his funds through the

Department of Corrections’ discretionary execution of its

assessment. The existence of such a choice demonstrates how

Burns’ interest in his institutional account was impaired.8

8

The Dissent argues that today’s decision opens a “can of

worms” by vesting inmates with due process whenever any one

of Honore’s “incidents” of property are impaired for any length

of time and for any reason. Dissenting Op. at 6. For example,

the Dissent argues that our approach “renders unconstitutional

a host of innocuous DOC regulations that limit, without due

process, inmates’ rights to ‘use’ and ‘transmit’ the fund in their

accounts” by placing limitations on the number of outside

purchases an inmate can make or the types of over-the-counter

medications they can purchase. Id. at 6-7. Similarly, the

Dissent argues that pursuant to today’s decision, a DOC

regulation that deprives inmates in disciplinary custody of the

privileges of enjoying personal property during the term of such

custody would automatically trigger due process protections. As

a result, the Dissent contends that our decision is contrary to the

Supreme Court’s instruction in Sandin to “‘afford appropriate

deference and flexibility to state officials trying to manage a

volatile environment’ and thereby limit ‘the involvement of

federal courts in the day-to-day management of prisons.’”

Dissenting Op. at 4 (quoting Sandin v. Conner, 515 U.S. 472,

26

482 (1995)). Respectfully, the Dissent misreads the breadth and

import of our holding.

First, we do not hold that any impairment of one of

Honoré’s “incidents” of property is sufficient to trigger due

process protections. We hold only that the Department of

Corrections’ assessment of Burns’ institutional account, which

this Court has previously recognized as a cognizable property

interest, deprived him of a protected property interest where that

assessment (1) placed the DOC in a position analogous to that

of a Judgment Creditor; (2) clouded Burns’s account for a

period of more than three years; and (3) reduced the economic

value and utility of that account. Whether the impairment of

other so-called “incidents” of property is sufficient to trigger the

protections of due process is not before us. If it were, however,

we would need to look to state law, as we did here, to determine

whether a particular claim of right is sufficient to constitute a

property interest for purposes of the Due Process Clause.

Logan, 455 U.S. at 430 (“The hallmark of property . . . is an

individual entitlement grounded in state law.”). Property rights,

after all, are “not created by the Constitution. Rather they are

created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as

state law-rules or understandings that secure certain benefits and

that support claims of entitlement to those benefits.” Bd. of

Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).

Second, we disagree with the Dissent’s in terrorem

contention that our decision will trigger due process protections

any time an inmate in disciplinary custody is deprived of access

to his private property. That a temporary separation of an

inmate from his personal property is analogous to the

27

V.

assessment at issue here, which placed the DOC in a position

akin to that of a Judgment Creditor pursuant to state law and

reduced the economic value of Burns’ account for a period of

more than three years is, in our view, too lacking in similitude

to carry much weight.

Finally, we note that even if Due Process protections

were triggered by the types of “deprivations” the Dissent

identifies, our decision in no way compels a conclusion that

such deprivations are constitutionally infirm. For purposes of

this appeal, the only question we need address is whether the

government has deprived Burns of a property interest; we

answer that question in the affirmative. The amount of process

an inmate is “due” is a distinct inquiry, and we agree that it must

be informed by the Supreme Court’s instruction in Sandin to

“afford appropriate deference and flexibility to state officials

trying to manage a volatile environment” and limit “the

involvement of federal courts in the day-to-day management of

prisons.” Sandin, 515 U.S at 482. As the Supreme Court

instructed in Wolff , “(t)he very nature of due process negates

any concept of inflexible procedures universally applicable to

every imaginable situation.” Id. at 560 (quotation omitted). As

such, “consideration of what procedures due process may

require under any given set of circumstances must begin with a

determination of the precise nature of the government function

involved as well as of the private interest that has been affected

by governmental action.” Id.

28

In sum, we are satisfied that the Department of

Corrections’ assessment of Burns’ institutional account

constituted the deprivation of a protected property interest for

purposes of procedural due process. Through its assessment, the

Department of Corrections attained a status akin to that of a

Judgment Creditor. In doing so, it necessarily reduced the

economic value of Burns’ account for a period of more than

three years. That deprivation is sufficient to trigger the

protections of the Due Process Clause. As such, we will reverse

the District Court’s order granting summary judgment in favor

of the Appellees and remand for further proceedings consistent

with this opinion.

29

Rodney Burns v. PA Department of Correction, et al.

No. 07-1678

HARDIMAN, Circuit Judge, dissenting.

Today the Court finds a new property right for purposes

of 42 U.S.C. § 1983: an inmate’s right to “security” in his

prison account. As the following colloquy at oral argument

makes plain, this Court becomes the first in the Nation to find

such a right:

JUDGE SMITH: [C]utting to the chase, do you

have . . . any authority from this Court or any

other Court of Appeals or any other court of

record . . . recognizing the right to security that is

one of the types of property interests that . . . your

arguments suggest[s] are entitled to protection?

MR. BOERGER: Not a specific reference to the

right of security. This is a matter of first

impression in this Court.

30

JUDGE SMITH: So it is . . . really a creature of

academic discussion, not a recognized property

interest heretofore by any court?

...

MR. BOERGER: Yes.

That no court has previously recognized an inmate’s right to

security in his prison account does not preclude us from doing

so today. But the absolute lack of precedent in support of such

a proposition suggests that we should tread cautiously, and I find

no warrant on the facts presented here to establish a new

property right. Accordingly, I must respectfully dissent.

I.

I begin with several points of agreement with the

Majority’s scholarly opinion. First, the Majority correctly

rejects the Department of Correction’s (DOC) mootness

argument. Second, the Majority has properly framed the

question, i.e.: whether Burns has shown that he was deprived of

a property right recognized by Pennsylvania law without due

process. See Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460

(1989). I also agree with the Majority that Burns does not allege

a deprivation of liberty despite the fact that he was ordered to

serve 180 days in disciplinary custody as a result of his

31

administrative conviction. Finally, the Majority properly notes

that Burns does not allege a seizure of the funds in his account;

in fact, no seizure occurred.

Despite these points of agreement with the Majority, the

DOC’s mere “assessment” — which has neither been reduced

to a liquidated sum nor finally adjudicated — does not implicate

a property right recognized under Pennsylvania law.

II.

Burns does not challenge the DOC’s decision to place

him in disciplinary custody for 180 days. This restriction on

Burns’s liberty is plainly more significant than the “cloud” over

his prison account, but Burns’s strategy to allege a deprivation

of property rather than liberty is understandable in light of the

Supreme Court’s decision in Sandin v. Conner, 515 U.S. 472,

486 (1995).

In Sandin, an inmate serving a 30-year sentence was

subjected to an invasive strip search by a prison officer. Id. at

474-75. After responding with “angry and foul language,” the

inmate was charged with disciplinary infractions and brought

before an adjustment committee. Id. at 475. Without permitting

the inmate to present witnesses in his defense, the adjustment

32

committee found him guilty of the alleged misconduct and

sentenced him to “30 days’ disciplinary segregation in the

Special Holding Unit.” Id. at 475-76. The inmate sued various

prison officials, claiming that they deprived him of his liberty

without due process of law. Id. at 476.

The Supreme Court held that the inmate suffered no

deprivation actionable under the Fourteenth Amendment

because his disciplinary segregation “did not present the type of

atypical, significant deprivation in which a State might

conceivably create a liberty interest.” Id. at 486. Our Court

followed this approach in Torres v. Fauver, where we held that

an inmate who “was placed in disciplinary detention for 15 days

and administrative segregation for 120 days” was not “deprived

of a protected liberty interest.” 292 F.3d 141, 151-52 (3d Cir.

2002); see also Mitchell v. Horn, 318 F.3d 523, 531-32 (3d Cir.

2003); Fraise v. Terhune, 283 F.3d 506, 522-23 (3d Cir. 2002);

Shoats v. Horn, 213 F.3d 140, 143-44 (3d Cir. 2000); Asquith v.

Dep’t of Corr., 186 F.3d 407, 411-12 (3d Cir. 1999); Griffin v.

Vaughn, 112 F.3d 703, 706 (3d Cir. 1997). Although Sandin

and its progeny do not control this case, our definition of

Burns’s property interest should be consistent with their

teachings.

Sandin was animated by the Supreme Court’s desire to

limit the ability of inmates to derive constitutionally protected

rights from “prison regulations primarily designed to guide

correctional officials in the administration of a prison.” Sandin,

515 U.S. at 481-82. In one pre-Sandin case, for example, an

33

inmate claimed that pursuant to a prison regulation meant to

protect prison officials, he was summarily labeled “incorrigible”

and deprived of his liberty interest in receiving a tray lunch

rather than a sack lunch. Burgin v. Nix, 899 F.2d 733, 734 (8th

Cir. 1990); see also Sandin, 515 U.S. at 482-83 (collecting

cases). Responding to such claims, the Supreme Court sought

to “afford appropriate deference and flexibility to state officials

trying to manage a volatile environment” and thereby limit “the

involvement of federal courts in the day-to-day management of

prisons.” Sandin, 515 U.S. at 482. The Court was also

concerned that permitting litigants to derive constitutional rights

from prison regulations ultimately harmed inmates by creating

“disincentives for States to codify prison management

procedures.” Id. To address these concerns, the Court limited

the scope of inmates’ liberty interests to situations where the

state “imposes atypical and significant hardship . . . in relation

to the ordinary incidents of prison life.” Id. at 484.

In light of the substantial narrowing of the inmate’s

liberty interest in Sandin, the Majority’s decision to broaden the

scope of inmates’ property interests beyond bounds heretofore

recognized by any court of record strikes me as anomalous and

unwise. By expanding the scope of property rights to include a

right to “security” in a prison account, the Majority elevates the

potential future threat of execution on a prison account over the

actual detriment of spending a significant amount of time in

disciplinary custody.

Moreover, although I accept the Majority’s application of

34

the Hohfeldian “bundle of rights theory of property” in certain

contexts, I disagree that it is an appropriate tool for defining the

property interests at issue here.9 As discussed by Honoré, the

“bundle of rights” includes eleven incidents of property

ownership: “the right to possess, the right to use, the right to

manage, the right to the income of the thing, the right to the

capital . . . the rights or incidents of transmissibility and absence

of term, the prohibition of harmful use, liability to execution,

and the incident of residuarity.” See Maj. Op. at IV. The

Majority’s holding suggests that the impairment of any one of

these incidents constitutes a deprivation of property sufficient to

trigger the procedural protections of the Fourteenth Amendment.

This approach is problematic for two reasons.

First, it permits inmates to circumvent the Supreme

Court’s holding that disciplinary segregation does not

automatically trigger the procedural protections of the

Fourteenth Amendment. See Sandin, 515 U.S. at 486. A DOC

regulation prohibits inmates from enjoying the privilege of

personal property. See DC-ADM 801 § 6(A)(3) (June 13,

2008). Under the Majority’s Hohfeldian theory, this regulation

9

I note that the Majority cites only takings cases for the

proposition that the “bundle of rights theory of property” has

been embraced by the Supreme Court and the Third Circuit

despite its observation that “what constitutes the impairment of

a protected property interest for purposes of due process . . . is

a distinct inquiry from determining what constitutes a taking.”

Maj. Op. at IV.

35

automatically deprives inmates sentenced to disciplinary

custody of personal property by impairing their “right to

possess” the same during their confinement. By virtue of this

deprivation, inmates will always be entitled to due process in

conjunction with their placement in disciplinary custody, a result

directly contrary to Sandin, 515 U.S. at 484-86.

Second, the Majority’s approach renders unconstitutional

a host of innocuous DOC regulations that limit, without due

process, inmates’ rights to “use” and “transmit” the funds in

their prison accounts. Although by no means an exhaustive list,

the following regulations illustrate the can of worms that I fear

is opened by today’s decision.

One policy limits an inmate’s ability to use prison

account funds for “outside purchases.” DC-ADM 815 § 2(B)

(May 12, 2008). Specifically, an inmate is “limited to one

[outside] order per month” and must submit a written purchase

request for review “by a designated facility official, who will

approve or disapprove” it pending “[f]inal approval . . . made

upon inspection when the item is received.” Id. Section

2(A)(3)(d) limits the over-the-counter medications that an

inmate is entitled to purchase to those “review[ed] and

approve[d]” by the “Bureau of Health Care Services.” Id.

Section 2(A)(7) tasks the “Property Office” with tracking “the

number of shoes and sneakers that are delivered to the inmate,

for compliance with the purchasing limitations on these

products.” The foregoing restrictions involve a more direct and

substantial impairment of an inmate’s property rights than the

36

“right to security,” and unlike any impairment suffered by

Burns, none of these policies affords an inmate an opportunity

to contest the relevant official’s decision.

Because these policies impair inmates’ rights to “use”

and “transmit” funds in their prison accounts — impairments the

Majority suggests are deprivations of property — inmates would

be entitled to due process with respect to every outside purchase,

every bottle of aspirin, and every pair of sneakers. This result

is antithetical to the Supreme Court’s decision in Sandin, which

recognized that the “incidents of prison life” involve limitations

on the panoply of rights enjoyed by ordinary citizens. 515 U.S.

at 485 (citing Jones v. N.C. Prisoners’ Labor Union, Inc., 433

U.S. 119, 125 (1977)) (“Lawful incarceration brings about the

necessary withdrawal or limitation of many privileges and

rights, a retraction justified by the considerations underlying our

penal system.”); Johnson v. California, 543 U.S. 499, 510

(2005) (“[C]ertain privileges and rights must necessarily be

limited in the prison context.”).

Furthermore, the Majority’s holding frustrates the

Supreme Court's attempt to insulate prison regulations

“primarily designed to guide correctional officials in the

administration of a prison” from constitutional scrutiny and to

“afford appropriate deference and flexibility to state officials

trying to manage a volatile environment.” Sandin, 515 U.S. at

481-82. Like the regulation that deprived “incorrigible” inmates

of potentially-hazardous tray lunches in Burgin, 899 F.2d at 734,

the purchasing policies described above are surely not “atypical”

37

or “significant” in relation to “the ordinary incidents of prison

life.” Sandin, 515 U.S. at 484. Accordingly, such regulations

should not be interpreted to confer heretofore unrecognized

rights upon inmates, but such an interpretation is unavoidable

given the Majority’s decision today.

In light of the foregoing, I would reject the Majority’s

conclusion that by clouding his prison account with the “threat

of expropriation,” the DOC deprived Burns of property. Maj.

Op. at IV. This threat to the “security” of his account — which,

it should be emphasized, remains to this day an account that

Burns is free to access and deplete — is simply not an “atypical

and significant hardship . . . in relation to the ordinary incidents

of prison life.” Sandin, 515 U.S. at 484.

III.

This is not to say that inmates have no “property interest

in funds held in prison accounts,” or that they are not entitled to

“due process with respect to any deprivation of money” from

their accounts. Maj. Op. at IV (citations omitted). I simply

contend that Burns’s property interest is not so broad and

amorphous as the Majority suggests. Given the more limited

nature of inmates’ property rights vís-a-vís ordinary citizens, see

Part II, supra, I would hold, as this Court has previously

suggested, that an inmate suffers a deprivation of property “at

the moment” the prison “employees seize[] the money in [the]

inmate account.” Higgins v. Beyer, 293 F.3d 683, 694 n.3 (3d

Cir. 2002). This sensible rule comports with a Supreme Court

38

case not mentioned by the Majority.

In American Manufacturers Mutual Insurance Company

v. Sullivan, a class of employees sued Pennsylvania state

officials, claiming that Pennsylvania’s Workers’ Compensation

Act deprived them of property without due process. 526 U.S. at

40, 48 (1999). The Act permitted insurance companies to

withhold reimbursements for medical treatment from workers

who suffered job-related injuries until private “utilization review

organizations” determined that the treatment was “reasonable or

necessary for the medical condition of the employee.” Id. at 46-

48 (internal citations omitted). Rejecting the employees’ claim

that they were entitled to the benefits as soon as the employers’

liability was established, the Supreme Court held that the

employees “do not have a property interest” in the benefits until

they “establish that the particular medical treatment . . . [was]

reasonable and necessary.” Id. at 61.

As in Sullivan, Burns’s liability for the assault had been

established, but the DOC had not attempted to quantify the

amount of his liability, which is a prerequisite to deducting

money from his account. App’x 33-35. Furthermore, as

Burns’s counsel admitted at oral argument, the funds in Burns’s

account remained freely alienable at all relevant times. See also

App’x 35 (indicating that funds in an inmate’s account remain

freely alienable until “receipt of a decision imposing an

assessment against the inmate” by the Business Manager). In

addition, before the DOC could execute its assessment, Burns

was entitled to additional process, including: (1) a “Holloway

39

hearing” to determine “the amount of financial loss or costs, if

any,”10 and (2) an appeal from this determination. App’x 33-35

(emphasis added); see Holloway v. Lehman, 671 A.2d 1179,

1180-82 (Pa. Commw. Ct. 1996). Thus, the DOC cannot

deprive Burns of funds in his prison account until it establishes

“the amount of financial loss or cost, if any.” Because it is

undisputed that the DOC never established (or even attempted

to establish) this amount, I would hold that Burns has not

suffered a deprivation of property.

For the same reason, I would reject Burns’s argument

that the DOC acquired a property interest in his account as a

“judgment creditor” that diminished the economic value of his

property. Maj. Op. at IV. As the Majority recognizes, a creditor

cannot execute on a money judgment until it is reduced to a

liquidated sum. See id. Here, it is undisputed that the DOC

never established Burns’s financial liability, if any. The

Majority dismisses this distinction as “beside the point” because

the DOC possessed “unilateral authority to reduce their

assessment to a specific dollar amount” and to “deduct any

assessed fees without resort to an intermediary.” Id. (emphasis

added). Much like a judgment debtor in state court, however,

Burns is entitled to notice, a hearing, and an appeal before his

10

Burns argues that once his disciplinary conviction become

final, deduction of medical expenses from this account “was

required by operation of law.” To the contrary, the “if any”

language in the regulations suggests that the Holloway hearing

could result in the assessment of no damages.

40

account can be debited.11 See Holloway, 671 A.2d at 1180-82;

App’x 33-35. If the DOC decides to pursue this course of

action, Burns will then be entitled to his day in court. As the

District Court stated:

Should Defendants or other [Department of

Corrections] officials seize any funds from

[Burns’s] inmate account for the payment of

medical or other expenses resulting from

Mobley’s assault, this Court would grant [Burns]

leave to re-file his due process challenges to his

disciplinary process.

Burns v. Pa. Dep’t of Corr., Civ. No. 05-3462, 2007 WL

442385, at *4 n.2 (E.D. Pa. Feb. 6, 2007).

IV.

In the absence of any authority, the Majority turns to

scholarly writings to hold that an inmate has a property right in

the “security” of his prison account. I cannot abide the

Majority’s elevation of an inmate’s property rights over his

11

Ironically, the rule established by the Majority confers

more process upon an inmate than a private citizen. Under

Pennsylvania law, a judgment creditor may confess judgment

and begin executing on the judgment debtor’s assets unless and

until the judgment debtor files a petition to open or strike the

confessed judgment. See Pa. R.C.P. 2956.1.

41

liberty rights as delineated by the Supreme Court in Sandin.

Likewise, if the property rights inside the prison walls are

coextensive with Honoré’s “incidents of property,” several

regulations promulgated by the Department of Corrections to

regulate the daily lives of inmates are constitutionally suspect.

In addition to these concerns on the merits, I fear that today’s

decision will spawn a new generation of unwarranted due

process challenges akin to those that laid the foundation for

Sandin. Accordingly, I must respectfully dissent.

42