                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


LESTER R. SHINAULT,                      No. 13-35290
                Plaintiff-Appellant,
                                            D.C. No.
                 v.                      3:11-cv-00436-
                                               PK
DICK HAWKS; TAMI DOHRMAN;
MARTHA MCDANIEL; OREGON
DEPARTMENT OF CORRECTIONS                  OPINION
GENERAL SERVICE DIVISION,
            Defendants-Appellees.


      Appeal from the United States District Court
               for the District of Oregon
       Anna J. Brown, District Judge, Presiding

               Argued and Submitted
        December 8, 2014—Seattle, Washington

                Filed January 22, 2015

Before: Michael Daly Hawkins, M. Margaret McKeown,
        and Richard C. Tallman, Circuit Judges.

              Opinion by Judge Hawkins
2                      SHINAULT V. HAWKS

                           SUMMARY*


                      Prisoner Civil Rights

    The panel affirmed the district court’s summary judgment
in an action brought by an Oregon state prisoner alleging that
state officials violated his rights under the Fourteenth and
Eighth Amendments when the Oregon Department of
Corrections froze more than $60,000 in his inmate trust
account to recover the cost of his incarceration.

    Plaintiff received a $107,416.48 settlement from a
medical liability claim against a drug manufacturer whose
products (prescribed while not in custody) caused him to
develop diabetes. Addressing plaintiff’s procedural due
process claim, the panel held that a state must provide a pre-
deprivation hearing before freezing substantial inmate assets.
The panel nevertheless affirmed the district court’s summary
judgment in favor of defendants on the basis of qualified
immunity because the constitutional obligation was not
clearly established at the time of the conduct.

    Plaintiff also asserted that the freeze and withdrawal of
his funds constituted deliberate indifference to his medical
needs under the Eighth Amendment because he intended to
use the funds to secure medical treatment following release
from incarceration. Rejecting the Eighth Amendment claim,
the panel held that prison officials did not deprive plaintiff of
care during his period of incarceration and a state’s obligation


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    SHINAULT V. HAWKS                        3

to provide medical care does not extend to shielding assets in
inmate accounts.


                         COUNSEL

Daniel H. Bookin and Anna-Rose Mathieson (argued),
O’Melveny & Myers LLP, San Francisco, California, Pro
Bono Counsel for Plaintiff-Appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce,
Solicitor General, Peenesh H. Shah (argued), Assistant
Attorney General, Salem, Oregon, for Defendants-Appellees.


                         OPINION

HAWKINS, Circuit Judge:

     Lester Shinault (“Shinault”) appeals the adverse grant of
summary judgment on his claim that state officials violated
his rights under the Eighth and Fourteenth Amendments when
the Oregon Department of Corrections (“ODOC”) froze more
than $60,000 in his inmate trust account to recover the cost of
his incarceration. The district court held that Shinault
received sufficient process because the State held a hearing
prior to withdrawing the funds and that he did not suffer an
injury under the Eighth Amendment. We affirm the district
court on the Eighth Amendment claim because a state’s
obligation to provide medical care does not extend to
shielding assets in inmate accounts. We disagree with the
district court’s due process determination because a state
must provide a pre-deprivation hearing before freezing
substantial inmate assets. Yet, we ultimately affirm on the
4                     SHINAULT V. HAWKS

basis of qualified immunity because the constitutional
obligation was not clearly established at the time of the
conduct.1

    FACTUAL BACKGROUND AND PROCEDURAL
                 HISTORY

    Lester Shinault was incarcerated with ODOC from May
19, 2005, until February 5, 2007, and again from October 23,
2008, until August 14, 2009, for felony convictions. During
the latter term of incarceration, Shinault received a
$107,416.48 settlement from a medical liability claim against
a drug manufacturer whose products (prescribed while not in
custody) caused him to develop diabetes.

    Shinault’s counsel in the product liability suit deposited
the settlement proceeds into Shinault’s inmate trust account.
ODOC establishes trust accounts for each inmate, which are
subject to various regulations governing accrual of interest,
limitations on use and access, and offset for indebtedness.
OR. ADMIN. R. 291-158-0015 et seq. Oregon law establishes
that inmates are liable for the full cost of their incarceration,
subject to various limitations. OR. REV. STAT. §§ 179.620;
179.640. For instance, officials must take into consideration
the inmate’s ability to pay, id. § 179.620(1)-(2), and “the
inmate’s need for funds for personal support after release.”
OR. ADMIN. R. 291-203-0040(5). Officials have discretion to



    1
     The State contends that Shinault’s claims are barred by sovereign
immunity. While sovereign immunity bars suits against states and their
agencies, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984), we don’t find Shinault’s pleading error fatal to his claims,
particularly where he has requested the substitution of parties.
                    SHINAULT V. HAWKS                        5

waive collection “based on the best interest of the inmate or
the department.” Id. 291-203-0080.

    Relying on this authority, ODOC issued an order on May
29, 2009, requiring Shinault to pay $65,353.94, the estimated
cost of his current and previous incarceration. Oregon
calculates the cost of incarceration by multiplying the daily
cost of care and the number of days an inmate is incarcerated.
The daily cost of care is the quotient of the total cost of
inmate care across the ODOC system divided by the number
of inmates. The order advised Shinault of his right to contest
the order, which he pursued by requesting a case hearing on
June 2, 2009.

    On the same day that Shinault requested a case hearing,
ODOC transferred $65,353.94 into a “reserved
miscellaneous” sub-account in Shinault’s name. The record
indicates that, after the transfer, Shinault could no longer
access or use the funds in the “reserved miscellaneous” sub-
account. ODOC took the position at the administrative
hearing that it was “holding” and had “set aside” the funds.

     After requesting and receiving a postponement of the
administrative hearing, Shinault’s privately retained counsel
withdrew for unclear reasons about one month prior to the
hearing. Shinault received ODOC’s exhibits and filings the
morning of the hearing and struggled to represent himself
(“Your Honor, I don’t know what I’m doing here . . . I’m in
left field here.”). He asked for a delay and the opportunity to
hire new counsel, both of which were denied by the
6                      SHINAULT V. HAWKS

Administrative Law Judge (“ALJ”).2 The ALJ ultimately
ordered Shinault to pay $61,352.39, and the funds were
withdrawn about one year later.3

    Shinault did not appeal the ALJ order. Instead, he filed
this action, alleging various constitutional harms. Defendants
moved for summary judgment on all claims. A magistrate
judge issued findings and recommended granting summary
judgment on all claims. Over Shinault’s objections, the
district court adopted those recommendations.

        JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction under 28 U.S.C. § 1291. A grant of
summary judgment is reviewed de novo. Lopez v. Smith,
203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). The court,
viewing the facts in the light most favorable to the plaintiff,
must determine whether any genuine issues of material fact
exist. Id.




 2
  Shinault earlier filed an unopposed motion to supplement the record on
appeal to include the transcript of an October 23, 2009, administrative
hearing. The transcript was included in the excerpts of record. The
motion is, therefore, denied as moot.
    3
   ODOC reduced the order from $65,353.94 to $61,352.39 because it
withdrew $4,088.96 from the “reserved miscellaneous” account to pay
several garnishments after issuing the initial order. The account had
earned $87.41 in interest during this intervening period.
                    SHINAULT V. HAWKS                         7

                         ANALYSIS

I. Procedural Due Process

    The Fourteenth Amendment provides that no State shall
“deprive any person of life, liberty, or property, without due
process of law.” Due process “is a flexible concept that
varies with the particular situation.” Zinermon v. Burch,
494 U.S. 113, 127 (1990). Due process protections extend
only to deprivations of protected interests. See Bd. of Regents
of State Colls. v. Roth, 408 U.S. 564, 569–70 (1972).

    An individual’s property is a fundamental example of a
protected interest. See Fuentes v. Shevin, 407 U.S. 67, 86
(1972). More specifically, “[t]here is no question that [an
inmate’s] interest in the funds in his prison account is a
protected property interest.” Quick v. Jones, 754 F.2d 1521,
1523 (9th Cir. 1985). Shinault’s trust account funds are
within the scope of the Fourteenth Amendment.

    Once a protected interest is found, we employ the three-
part balancing test of Mathews v. Eldridge, 424 U.S. 319
(1976), to determine whether a pre-deprivation hearing is
required and what specific procedures must be employed at
that hearing given the particularities of the deprivation.
Brewster v. Bd. of Educ., 149 F.3d 971, 983–84 (9th Cir.
1998). The Mathews test balances three factors: (1) the
private interest affected; (2) the risk of erroneous deprivation
through the procedures used, and the value of additional
safeguards; and (3) the government’s interest, including the
burdens of additional procedural requirements. Mathews,
424 U.S. at 335.
8                    SHINAULT V. HAWKS

    Recalling that due process varies depending on the
particularities of a case, every action affecting an inmate trust
account does not necessarily implicate a substantial private
interest under the first Mathews prong. Here, however,
Shinault’s interest was clearly substantial, because ODOC
deprived him of access to a significant amount of his funds.
See Quick, 754 F.2d at 1522–23 ($66 charge merits pre-
deprivation process); cf. Sickles v. Campbell Cnty., Ky.,
501 F.3d 726, 730 (6th Cir. 2007) (withdrawals of $110 and
$20 do not implicate substantial private interest).

     In terms of the second Mathews factor, two aspects of
Oregon’s regulatory scheme risk erroneous deprivation. The
first—calculating the daily cost of care—involves mere
arithmetic, but the calculations are more complex than flat fee
arrangements found to involve minimal risk of error. See,
e.g., Slade v. Hampton Roads Reg’l Jail, 407 F.3d 243,
253–54 (4th Cir. 2005) (charging inmate $1 per day is a
“ministerial” act); Tillman v. Lebanon Cnty. Corr. Facility,
221 F.3d 410, 413, 422 (3d Cir. 2000) (taking $10 per day
from inmate is a “routine matter[] of accounting.”). In fact,
ODOC admits that it erred slightly by using the incorrect
daily rate for one period of incarceration. In addition, the
State’s obligation to determine an inmate’s ability to pay
based on the inmate’s estate, need for funds for personal
support, and availability of benefits is an individualized
decision that poses a risk of error. OR. ADMIN. R. 291-203-
0040(5).

    As to the third Mathews factor, the government’s interest
in conserving taxpayer resources by sharing incarceration
costs is substantial. Sickles, 501 F.3d at 731. Yet, the third
factor is balanced by the need to assure that additional
procedural safeguards are not administratively burdensome.
                        SHINAULT V. HAWKS                               9

Montanez v. Sec’y Pa. Dep’t of Corr., 2014 WL 5155040, at
*8 (3d Cir. Aug. 15, 2014).

    The Supreme Court “usually has held that the
Constitution requires some kind of a hearing before the State
deprives a person of liberty or property.” Zinermon v. Burch,
494 U.S. 113, 127 (1990) (citations omitted). So, “[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.” Id. at 132.4
However, post-deprivation process can suffice “in limited
cases” when prompt action is required, an important
government interest is involved, and there is substantial
assurance that the deprivation is not baseless or unwarranted.
Fed. Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 240 (1988).
For instance, temporary suspensions of an indicted bank
officer, id. at 240–41, a horse trainer suspected of doping,
Barry v. Barchi, 443 U.S. 55, 64 (1979), and a police officer
based on a drug-related charge, Gilbert v. Homar, 520 U.S.
924, 932 (1997), did not require pre-deprivation hearings.

     The results of the Mathews balancing test point to the
need for a pre-deprivation hearing prior to freezing Shinault’s
funds. Compared to the cases above, the State’s interest does
not require such prompt action that a pre-deprivation hearing
is infeasible. While state officials could temporarily suspend
individuals from their jobs without a hearing in order to


   4
      The Supreme Court required pre-deprivation hearings prior to
terminating public-sector employment, Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 542 (1985), cutting off utility service, Memphis
Light, Gas & Water Div. v. Craft, 436 U.S. 1, 18 (1978), and suspending
a public-school student, Goss v. Lopez, 419 U.S. 565, 579 (1975).
10                  SHINAULT V. HAWKS

preserve the integrity of those regulated professions and
protect the public, the integrity of Oregon’s prison system
does not diminish if a hearing precedes a freeze of inmate
assets, particularly because the funds in fact remain in the
State’s control. Nor does the financial viability of the
correctional system require immediate recoupment of inmate
costs given their insignificance in relation to ODOC’s overall
budget. In other words, Oregon’s interest in administering
cost-effective and safe prisons is significant, but recouping
incarceration costs does not rise to a level which would
obviate the need for a pre-deprivation hearing in advance of
action.

    Given Shinault’s substantial interest, the risk of erroneous
deprivation, and the ability to provide a hearing without
compromising a significant government interest, we hold that
a state must provide a hearing prior to freezing a significant
sum in the inmate’s account. Thus, we conclude that Shinault
received insufficient due process as the result of Oregon’s
actions.

    Nor should providing a pre-deprivation hearing be
administratively burdensome. Several jurisdictions have been
able to do so in similar circumstances. For instance, the State
of Montana places the authority to collect incarceration costs
with the sentencing court, MONT. CODE ANN. § 7-32-2245,
and notice and the opportunity to respond is central to
determining whether the imposition of costs during
sentencing is lawful. See State v. Johnson, 302 Mont. 265,
272, 14 P.3d 480, 485 (2000). The State of California
requires a hearing and determination of an inmate’s ability to
pay prior to charging incarceration costs. CAL. PENAL CODE
§ 1203.1c (providing individuals entitled to representation for
underlying criminal charge with right to counsel at hearing).
                    SHINAULT V. HAWKS                       11

The State of Iowa “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.”
Montanez, 2014 WL 5155040, at *8–9 (alterations in
original) (citations and internal quotation marks omitted).
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.” Id.

    At a minimum, due process requires that inmates be
informed of their financial liability (including the basis for
the calculation), and have a meaningful opportunity to contest
the assessment before significant assets are deducted or
frozen. See Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950). Oregon’s May 29, 2009, order
satisfied the notice component. The opportunity to object
protects against the possibility of error in calculating
incarceration costs and determining ability to pay. We do not
suggest that ODOC must provide each inmate with a formal,
judicial-like hearing prior to freezing inmate accounts.
Neither do we observe that the administrative hearing that
preceded the withdrawal of Shinault’s funds was deficient,
apart from the process afforded prior to freezing his assets.
Rather, prior to such a freeze, Oregon must give notice and
provide a meaningful opportunity to object. ODOC retains
discretion, consistent with its constitutional obligations, to
satisfy this requirement in a flexible and cost-effective
manner.
12                   SHINAULT V. HAWKS

II. Qualified Immunity

     “Qualified immunity shields federal and state officials
from money damages unless a plaintiff pleads facts showing
(1) that the official violated a statutory or constitutional right,
and (2) that the right was ‘clearly established’ at the time of
the challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2080 (2011) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). In order to be clearly established, “[t]he
contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635,
640 (1987). “We do not require a case directly on point, but
existing precedent must have placed the statutory or
constitutional question beyond debate.” Ashcroft, 131 S. Ct.
at 2083. Because the Mathews test “boils down to an ad hoc
balancing inquiry,” procedural due process requirements “can
rarely be considered clearly established at least in the absence
of closely corresponding factual and legal precedent.”
Brewster, 149 F.3d at 983 (citations and internal quotation
marks omitted).

    As no case decided by the Supreme Court resembles this
case, Shinault directs our attention to Quick v. Jones,
754 F.2d 1521 (9th Cir. 1985), as the authority placing this
question beyond debate. There, a Washington state prisoner
on furlough caused damage to a parole officer and sheriff’s
belongings while fleeing. Quick, 754 F.2d at 1522. At a
disciplinary hearing, Quick was directed to pay $66 in
restitution. Id. at 1522–23. Quick appealed the order to the
prison superintendent who affirmed, and funds were
withdrawn from the account and transferred to the two
officials. Id. We decided in these circumstances that a pre-
                    SHINAULT V. HAWKS                      13

deprivation hearing was required prior to the “permanent and
final withdrawal of money . . . .” Id. at 1523.

    Numerous material differences distinguish Quick. The
deprivation in Quick’s case was final and permanent, whereas
here state officials only froze Shinault’s account pending the
outcome of proceedings. The state in Quick did not hold a
hearing assessing liability for the damages prior to
withdrawing funds from his account. In contrast, ODOC held
a hearing assessing liability prior to withdrawing Shinault’s
funds. Lastly, Shinault’s account was restricted pursuant to
a comprehensive scheme to recoup incarceration costs, while
Quick’s account was debited to provide restitution. Given
these differences, we are unable to say that Quick is “closely
corresponding factual and legal precedent.” Brewster,
149 F.3d at 983.

    In addition, qualified immunity is appropriate because
some courts have declined to require a pre-deprivation
hearing in analogous cases, albeit involving significantly
smaller charges to inmate accounts, which shows that the
right was not clearly established at the time of conduct. The
Sixth Circuit held that per-diem deductions totaling $20 and
$110.27 required only post-deprivation process. Sickles v.
Campbell Cnty., Ky., 501 F.3d 726, 730–32 (6th Cir. 2007).
Similarly, the Third Circuit found that a $10 per-day charge,
totaling $4,000, did not require pre-deprivation process.
Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410,
421–22 (3d Cir. 2000); accord Slade v. Hampton Roads Reg’l
14                     SHINAULT V. HAWKS

Jail, 407 F.3d 243, 253–54 (4th Cir. 2005) (no pre-
deprivation process needed for $1 per-day deduction).5

    Given the absence of precedent establishing a state’s
obligation to provide a pre-deprivation hearing in these
circumstances, the right was not clearly established at the
time of the conduct. Quick is distinguishable enough from
this matter, and several decisions from our sister circuits have
held that post-deprivation process suffices, even for final
withdrawals of assets.6

III.     Eighth Amendment

    Shinault contends that the freeze and withdrawal of funds
constitutes deliberate indifference to his medical needs under
the Eighth Amendment because he intended to use the funds
to secure medical treatment following release from
incarceration. The district court granted defendants’ motion
for summary judgment on the claim, ruling that there was no
Eighth Amendment violation because the withdrawal was a
reimbursement rather than a punishment, defendants provided
adequate medical care, and the record did not show that
Shinault would be unable to access medical care after release.
We affirm.



  5
    The most recent appellate court decision on point required a pre-
deprivation hearing, but that case was decided long after ODOC officials
froze Shinault’s assets. Montanez v. Sec’y Pa. Dep’t of Corr., 2014 WL
5155040, at *7–8 (3d Cir. Aug. 15, 2014).
     6
     Qualified immunity does not apply to claims for declaratory or
injunctive relief. Hydrick v. Hunter, 669 F.3d 937, 939–40 (9th Cir.
2012). As Shinault disclaimed an injunctive remedy during oral argument,
his due process claim is dismissed on summary judgment.
                    SHINAULT V. HAWKS                       15

    The Eighth Amendment’s prohibition on cruel and
unusual punishment obligates the government to “provide
medical care for those whom it is punishing by
incarceration.” Estelle v. Gamble, 429 U.S. 97, 103 (1976).
“[D]eliberate indifference to a prisoner’s serious illness or
injury states a cause of action under [Section] 1983.” Id. at
105; see also Hutchinson v. United States, 838 F.2d 390, 394
(9th Cir. 1988). In addition to showing a serious medical
need, a plaintiff must prove that prison officials were aware
of the condition and deliberately denied or delayed care in
order to prevail on an Eighth Amendment claim. See Farmer
v. Brennan, 511 U.S. 825, 836–37 (1994). As with the
procedural due process claim, Shinault was required to prove
that the right was clearly established at the time of the
conduct.

    Assuming that Shinault’s diabetes was a significant
medical condition and that prison officials were aware of the
condition, no authority supports the notion that freezing or
withdrawing funds from an inmate account constitutes
deliberate denial of care under the Eighth Amendment. The
state is obligated to provide diabetes treatment to inmates in
custody, Lolli v. Cnty. of Orange, 351 F.3d 410, 420 (9th Cir.
2003), and in certain circumstances to provide medication
covering a “transitional period” following release. Wakefield
v. Thompson, 177 F.3d 1160, 1164 (9th Cir. 1999) (ignoring
instructions of physician constitutes interference with medical
care). The right to medical care has never shielded an
inmate’s assets because they could potentially be used for
medical purposes after release from incarceration, and we
decline to do so here.

    No issue of material fact indicates that Shinault has a
valid claim under the Eighth Amendment. Prison officials
16                      SHINAULT V. HAWKS

did not deprive Shinault of care during his period of
incarceration, and he received a sixty-day supply of
medication upon release. Thus, we affirm the district court
on the Eighth Amendment claim.7

                          CONCLUSION

    For these reasons, we affirm the district court’s grant of
summary judgment on both claims. While we hold that a
state must provide a pre-deprivation hearing prior to freezing
substantial inmate assets, we ultimately affirm the district
court on the due process claim because that right was not
clearly established at the time of ODOC’s actions.

      AFFIRMED.




  7
     We could also affirm on the basis of qualified immunity because
defendants did not have notice that they violated a constitutional right. A
number of courts have rejected Eighth Amendment challenges to various
fees charged to inmates, although none of those decisions were exactly on
point. See, e.g., Poole v. Isaacs, 703 F.3d 1024, 1027–28 (7th Cir. 2012);
Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 408 (9th Cir.
1985); Gardner v. Wilson, 959 F. Supp. 1224, 1228 (C.D. Cal. 1997).
