                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-12-2002

Higgins v. Beyer
Precedential or Non-Precedential: Precedential

Docket No. 99-5556




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PRECEDENTIAL

       Filed June 12, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-5556

VINCENT M. HIGGINS,
       Appellant

v.

HOWARD L. BEYER, DEPARTMENT OF CORRECTIONS;
WILLIAM F. PLANTIER; GRACE ROGERS; JAMES
DOOLEY; THOMAS MORAN; DANIEL BARRAJAS;
LILLYANNE D. YEAGER; LINDA COOK; FRANK BRUNO;
ANSELM JEEVERATNAM; MARGARET C. ZORSKY;
BRENDA GIBB; GWINN GOODE; JOSEPH DOE, (LAST
NAME A FICTITIOUS NAME), IN THEIR INDIVIDUAL
CAPACITY, JOINTLY, SEVERALLY OR IN
THE ALTERNATIVE

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 98-CV-03641)
District Judge: Hon. Garrett E. Brown, Jr.

Argued April 5, 2002

Before: SLOVITER, BARRY, and ALARCON,*
Circuit Judges

(Filed: June 12, 2002)
_________________________________________________________________

* Hon. Arthur L. Alarcon, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.


       S. William Livingston, Jr.
       Jennifer E. Schwartz (ARGUED)
       Covington & Burling
       1201 Pennsylvania Avenue, N.W.
       Washington, DC 20004-2401

        Attorneys for Appellant

       John J. Farmer, Jr., Attorney
        General of New Jersey
       Michael J. Hass
       Jeffrey K. Gladden (ARGUED)
       R.J. Hughes Justice Complex
       25 Market Street
       Trenton, New Jersey 08625

        Attorneys for Appellees

OPINION OF THE COURT
ALARCON, Circuit Judge:

Vincent M. Higgins appeals from the dismissal of his
federal civil rights claim that Howard L. Beyer, the
Assistant Commissioner of the New Jersey Department of
Corrections, and 13 employees of the Adult Diagnostic and
Treatment Center ("ADTC employees") violated 38 U.S.C.
S 5301(a) by seizing money derived from a veteran’s
disability benefits check from his inmate account to pay a
state court-ordered fine, and that he was deprived of his
constitutional right to due process because his request for
a predeprivation hearing was ignored. He also seeks
reversal of the dismissal of his claim, on the ground of
mootness, that prison employees retaliated against him for
exercising constitutionally protected rights.

We reverse because we conclude that Higgins’s pro se
complaint, when liberally construed, stated sufficient facts
to state a cause of action for a violation of a federal right
under S 5301(a), and a deprivation of his Fourteenth
Amendment right to notice and hearing prior to the

                                2


deprivation of his property interest in the proceeds of his
veteran’s benefits. We also hold that the district court erred
in dismissing his claim that the prison officials retaliated
against him for asserting his rights under the Due Process
Clause.

I

Higgins alleged the following facts in his complaint.
Higgins served in the United States Army from 1974 to
1978. While in the Army, Higgins injured his left hand,
leaving him partially disabled. This partial disability
qualified Higgins to receive disability benefits from the
Veteran’s Administration ("VA") for the remainder of his life.

In 1992, Higgins pled guilty to the crime of First Degree
Aggravated Sexual Assault in the Superior Court of New
Jersey. The court sentenced Higgins to a 10-year term of
imprisonment to be served at the ADTC in Avenel, New
Jersey. The court also imposed a Victims of Crime
Compensation Board ("VCCB") fine in the amount of
$1,000, pursuant to section 2C:43-31 of the New Jersey
Statutes Annotated. N.J. Stat. Ann. S 2C:43-3.1 (West
1995). Section 2C:43-3.1 expressly requires a New Jersey
Superior Court to order the Department of Corrections to
collect a VCCB fine from the personal account of an inmate
if the assessment was not paid at the time of sentencing.1
_________________________________________________________________

1. Section 2C:43-3.1 provides in pertinent part:

       In addition to any disposition made pursuant to the provisions of
       N.J.S. 2C:43-2, any person convicted of a crime of violence . . . shall
       be assessed at least $100.00, but not to exceed $10,000.00 for each
       such crime for which he was convicted which resulted in the injury
       or death of another person. . . . When a defendant who is sentenced
       to incarceration in a State correctional facility has not, at the time
       of sentencing, paid an assessment for the crime for which he is
       being sentenced or an assessment imposed for a previous crime, the
       court shall specifically order the Department of Corrections to collect
       the assessment during the period of incarceration and to deduct the
       assessment from . . . any personal account established in the
       institution for the benefit of the inmate.

N.J. Stat. Ann S 2C:43-3.1(a)(1), (a)(3).

                                3


At the time of sentencing, Higgins had not yet received any
disability benefits from the VA.

On April 7, 1993, Higgins was transferred from the
Monmouth County Correctional Center Facility to the
ADTC. On or about April 1, 1998, he received a notification
from the VA that his claim for benefits for partial disability
had been approved. He was advised that he would receive
a check for benefits due from January 1, 1991 to March 31,
1998.

On May 29, 1998, a United States Treasury Department
check in the amount of $7,608, made out to Higgins as the
payee, arrived at the ADTC. On the same date, Higgins was
notified during mail call by an ADTC employee that the
check had arrived. He was not handed the check nor did he
authorize any prison employee to deposit it in his inmate
account. The standard procedure at the ADTC when a
check is received is to request the inmate to sign a form
acknowledging receipt of the check and then endorse it "For
Deposit Only." The ADTC employees did not follow this
procedure.

Later that day, Higgins wrote four "business remits,"
which instructed prison employees to forward money in the
amounts of $5,000, $2,000, and two for $200 apiece to
various persons. A "business remit" is the term used at the
ADTC for an inmate’s authorization that money be
deducted from his account.

On May 31, 1998, Higgins asked the social worker
assigned to his wing to find out what had happened to his
check. The social worker informed Higgins that ADTC
employees intended to use part of the proceeds of the VA
disability benefits check to pay the outstanding VCCB fine
ordered by the New Jersey Superior Court. On the same
date, Higgins filed a written complaint addressed to ADTC
Superintendent William F. Plantier in which Higgins stated
that a VA disability benefits check is not attachable
pursuant to 38 U.S.C. S 5301.

On June 2, 1998, ADTC Assistant Superintendent Grace
Rogers sent a letter to Higgins in which she stated that
Higgins’s VA disability benefits check had been received
and would be deposited in his inmate account. On June 3,
                                4


1998, Higgins received written confirmation that his check
had been deposited in his inmate account. On June 9,
1998, Linda Cook, an ADTC social worker, notified Higgins
that none of the checks that he had authorized would be
sent out until he signed a business remit authorizing the
withdrawal of $1,000 to pay the VCCB fine. Higgins refused
on the ground that a VA disability benefits check is not
attachable pursuant to 38 U.S.C. S 5301. He also stated
that under the terms of his plea bargain, he was only
required to pay an assessment of $30 and that he had filed
a habeas corpus petition challenging the imposition of a
VCCB fine in the amount of $1,000. Ms. Cook informed
Higgins that only a portion of the checks he had authorized
would be sent out so that there would be sufficient funds
in his inmate account to satisfy the VCCB fine.

On June 10, 1998, Daniel Barrajas, ADTC’s Assistant
Mail Supervisor, asked Higgins to endorse the VA disability
benefits check. Higgins refused. On the same date, Higgins
wrote to Superintendent Plantier requesting a written
explanation of the disposition of his VA disability benefits
check. Higgins also stated that if he did not receive a
written explanation by June 12, 1998, he would file an
action in the United States District Court. Superintendent
Plantier did not reply. Sometime thereafter, ADTC
employees deducted $1,000 from Higgins’s inmate account
to pay the VCCB fine ordered by the New Jersey Superior
Court.

II

Higgins filed this S 1983 action on August 4, 1998. Prior
to filing an answer, the ADTC employees moved to dismiss
the complaint on October 14, 1998, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, asserting
that Higgins had failed to state a claim upon which relief
can be granted. Higgins filed his opposition to the Rule
12(b)(6) motion on November 9, 1998.

While the motion to dismiss was pending, Higgins filed a
pro se pleading styled as a "NOTICE OF MOTION IN
SUPPORT OF AFFIDAVIT/DEPOSITION TO CONSOLIDATE
THESE ARGUMENTS WITH THE ABOVE DOCKET CASE

                                5


AND/OR ORDER OF PROTECTION/INJUNCTION." In this
motion, Higgins alleged that ADTC employees brought false
charges against him, resulting in his confinement in
administrative segregation for 365 days and the denial of
his access to the courts, in retaliation for the filing of this
action for damages for the deprivation of his rights
pursuant to 38 U.S.C. S 5301(a) and the Due Process
Clause of the Fourteenth Amendment.
On June 10, 1999, without the benefit of oral argument,
the district court granted the ADTC employees’ motion to
dismiss this action, for failure to state a claim upon which
relief can be granted. In a footnote to its memorandum
opinion, the district court stated: "In light of this Court’s
granting of the motion to dismiss plaintiff ’s complaint as to
the fourteen individual defendants, the later-filed motion of
pro se plaintiff Vincent Higgins for a preliminary injunction
shall be denied as moot." The court did not explain how
Higgins’s discrete claim that ADTC employees retaliated
against him for asserting his right to access to the courts
was rendered moot by his alleged failure to state a claim for
the deprivation of his property in violation ofS 5301(a) and
his constitutional right to a predeprivation hearing.

Higgins has timely appealed the district court’s final
judgment in this S 1983 action. Accordingly, we have
jurisdiction over this appeal. 28 U.S.C. S 1291.

III

Higgins contends that the district court erred in ruling
that he failed to allege sufficient facts to demonstrate that
the ADTC employees violated S 1983. He argues that the
complaint alleges sufficient facts to state a claim under
S 1983 either for depriving him of money derived from a VA
disability benefits check in violation of S 5301(a), or for
denying him his constitutional right to a predeprivation
hearing to challenge the threat to remove funds derived
from his VA disability benefits check from his inmate
account.

Our review of the dismissal of an action pursuant to Rule
12(b)(6) is plenary. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.

                                6


1996). This Court has described the nature of our review as
follows:

       We must determine whether, under any reasonable
       reading of the pleadings, the plaintiffs may be entitled
       to relief, and we must accept as true the factual
       allegations in the complaint and all reasonable
       inferences that can be drawn therefrom. The complaint
       will be deemed to have alleged sufficient facts if it
       adequately put the defendants on notice of the
       essential elements of the plaintiffs’ cause of action.
       Since this is a S 1983 action, the plaintiffs are entitled
       to relief if their complaint sufficiently alleges
       deprivation of any right secured by the Constitution. In
       considering a Rule 12(b)(6) motion, we do not inquire
       whether the plaintiffs will ultimately prevail, only
       whether they are entitled to offer evidence to support
       their claims. Thus, the district court’s order granting
       the defendants’ motion to dismiss will be affirmed only
       if it appears that the plaintiffs could prove no set of
       facts that would entitle them to relief.
Id. (citations omitted). Moreover, as Higgins filed his
complaint pro se, we must liberally construe his pleadings,
and we will "apply the applicable law, irrespective of
whether a pro se litigant has mentioned it by name." Holley
v. Dep’t of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir.
1999).

Section 1983 authorizes a person to file a private cause
of action against state actors for a deprivation of rights
protected by a federal statute or the United States
Constitution. Section 1983 provides in pertinent part:

       Every person who, under color of any statute,
       ordinance, regulation, custom, or usage, of any State
       or Territory or the District of Columbia, subjects, or
       causes to be subjected, any citizen of the United States
       or other person within the jurisdiction thereof to the
       deprivation of any rights, privileges, or immunities
       secured by the Constitution and laws, shall be liable to
       the party injured in an action at law, suite in equity, or
       other proper proceeding for redress . . . .

                                7


42 U.S.C. S 1983. It is undisputed that the ADTC
employees were state actors who deprived Higgins of funds
derived from his VA disability benefits check without his
consent under color of a state court order issued pursuant
to N.J. Stat. Ann. S 2C:43-3.1(a)(3).

A.

We must first consider whether Higgins alleged sufficient
facts to demonstrate a violation of 38 U.S.C. S 5301(a).
Section 5301(a) provides in relevant part:

       Payments of benefits due or to become due under any
       law administered by the Secretary shall not be
       assignable except to the extent specifically authorized
       by law, and such payments made to, or on account of,
       a beneficiary shall be exempt from taxation, shall be
       exempt from the claim of creditors, and shall not be
       liable to attachment, levy, or seizure by or under any
       legal or equitable process whatever, either before or
       after receipt by the beneficiary. The preceding sentence
       shall not apply to claims of the United States arising
       under such laws nor shall the exemption therein
       contained as to taxation extend to any property
       purchased in part or wholly out of such payments.
       . . .

38 U.S.C. S 5301(a).

In order to state a claim under S 1983, a plaintiff must
allege a "violation of a federal right, and not merely a
violation of federal law." Pa. Pharmacists Ass’n v. Houstoun,
283 F.3d 531, 535 (3d Cir. 2002) (en banc) (quotation
omitted). This Court recently explained that "a plaintiff
alleging a violation of a federal statute may not proceed
under S 1983 unless 1) the statute creates enforceable
rights, privileges, or immunities within the meaning of
S 1983 and 2) Congress has not foreclosed such
enforcement of the statute in the enactment itself." Id.
(quotations omitted).

To create a right enforceable under S 1983, the federal
statute at issue must meet three conditions:

                                8


       First, Congress must have intended that the provision
       in question benefit the plaintiff. Second, the plaintiff
       must demonstrate that the right assertedly protected
       by the statute is not so "vague and amorphous" that its
       enforcement would strain judicial competence. Third,
       the statute must unambiguously impose a binding
       obligation on the States. In other words, the provision
       giving rise to the asserted right must be couched in
       mandatory, rather than precatory, terms.

Blessing v. Freestone, 520 U.S. 329, 340-41 (1997)
(citations omitted). Once all three conditions are met, a
rebuttable presumption arises that the right is enforceable
under S 1983. Id. at 341; Pa. Pharmacists Ass’n, 283 F.3d
at 535. "This presumption may be rebutted by showing that
Congress expressly or impliedly foreclosed an action under
S 1983." Pa. Pharmacists Ass’n, 283 F.3d at 535.

Congress may impliedly foreclose a remedy underS 1983
"by creating a comprehensive enforcement scheme that is
incompatible with individual enforcement under S 1983."
Blessing, 520 U.S. at 341. Section 5301(a) contains neither
express language nor a comprehensive enforcement scheme
that demonstrates that Congress intended to foreclose a
remedy under S 1983 for a violation of S 5301(a). We are
persuaded that S 5301(a) provides a federal right that is
enforceable under S 1983.

The purpose of the prohibition against the attachment,
levy, or seizure of a veteran’s disability benefits in S 5301(a)
is to "prevent the deprivation and depletion of the means of
subsistence of veterans dependent upon these benefits as
the main source of their income." Rose v. Rose, 481 U.S.
619, 630 (1987) (quotation omitted). Even though Higgins,
because he is a prisoner, does not presently need or rely
upon his disability benefits for subsistence, his right
nonetheless to receive those benefits free from attachment,
levy, or seizure is expressly set forth in clear, mandatory
language in the statute. Section 5301(a) also precludes
anyone from using any "legal or equitable process" to
attach, levy, or seize these benefits. Thus, S 5301(a)
satisfies the conditions set forth in Blessing v. Freestone for
creating a federal right enforceable under S 1983.

                                9


Our holding that a violation of a veteran’s rights under
S 5301(a) is enforceable against state prison officials
pursuant to S 1983 is supported by the Ninth Circuit’s
decision in Nelson v. Heiss, 271 F.3d 891 (9th Cir. 2001).
In Nelson, the court held that future veteran’s benefits are
exempt from a hold placed on an inmate’s account where
the inmate consented to and the prison officials authorized
the hold to cover purchases of medical-record copies and
dental appliances when there were insufficient funds to
cover the overdrafts. Id. at 893-96. The Ninth Circuit held
that the holds placed on the veteran’s inmate account by
the prison officials violated S 5301(a) because a veteran’s
benefits are exempt from assignment, attachment, levy, or
seizure. Id. In Nelson, the state actors were attempting to
recoup funds advanced for the veteran’s medical needs. Id.
at 893. In rejecting the contention of the state actors that
they had a right to the funds after providing overdraft
protection, the Ninth Circuit reasoned: "Section 5301(a) was
designed to protect veteran’s benefits against their creditors
so that the veterans themselves could spend those funds as
they saw fit when they actually got them, and not before."
Id. at 894.

In response to the prison officials’ argument that
Congress could not have intended to prohibit the taking of
a veteran’s disability benefits for his or her maintenance
and care as allowed by a number of states, the Ninth
Circuit observed: "But if Congress wanted to create
exceptions to [non-attachment or seizure], it knew how to
do so." Id. at 896. In Nelson, the Ninth Circuit applied
S 5301(a), notwithstanding the fact that the prisoner had
specifically consented to the future payment for the goods
and services from his account when he received a VA check
that would cover his depleted inmate account. Id. at 895.

In this matter, Higgins did not consent to the taking of
money from his inmate account. Instead, he warned the
ADTC employees that the use of his disability benefits to
satisfy the VCCB fine violated S 5301(a). Thus, the matter
before us presents a more compelling factual basis for
applying S 5301(a) to protect money derived from Higgins’s
disability benefits from attachment, levy, or seizure than
the circumstances before the Ninth Circuit in Nelson.

                                10


The Supreme Court has not yet construed S 5301(a) to
determine whether prison officials can attach or seize funds
in an inmate’s account derived from a VA disability benefits
check. In Bennett v. Arkansas, 485 U.S. 395 (1988), the
Court was called upon to determine whether a State can
attach Social Security benefits to help defray the cost of
maintaining its prison system. Id. at 396. The State of
Arkansas filed an action in state court seeking to attach
Bennett’s Social Security benefits to defray the cost of
maintaining its prison system pursuant to the State Prison
Inmate Care and Custody Reimbursement Act, Ark. Stat.
Ann. S 46-1701 et seq. (Supp. 1985). Id. The Arkansas
statute expressly authorized the seizure of federal Social
Security benefits for this purpose. Id. at 396 n.1.
In his opposition to the State’s action, Bennett argued
that the Arkansas statute violated the Supremacy Clause
because it was in conflict with 42 U.S.C. S 407(a), which
exempts Social Security benefits "from legal process." Id. at
397. Section 407(a) provides in relevant part that"none of
the moneys paid or payable . . . under [the Social Security
Act] shall be subject to execution, levy, attachment,
garnishment, or other legal process." 42 U.S.C.S 407(a).
The state trial court entered judgment in favor of the State
and directed that a portion of Bennett’s Social Security
benefits be seized. 485 U.S. at 397. The Supreme Court of
Arkansas affirmed, holding that there was no conflict
between the Arkansas statute and 42 U.S.C. S 407(a)
because " ‘the [Social Security Act] contain[s] an implied
exception to the exemption from legal process when the
State provides for the care and maintenance of a
beneficiary of social security . . . funds.’ " Id. at 397 (quoting
Bennett v. State, 716 S.W.2d 755, 756 (Ark. 1986)).

The Court granted Bennett’s petition for certiorari and
reversed the judgment of the Supreme Court of Arkansas.
Id. at 397-98. The Court reasoned as follows:

       We think--contrary to the conclusion of the Supreme
       Court of Arkansas--that there is a clear inconsistency
       between the Arkansas statute and 42 U.S.C. S 407(a)
       (1982 ed., Supp. III). Section 407(a) unambiguously
       rules out any attempt to attach Social Security
       benefits. The Arkansas statute just as unambiguously

                                11


       allows the State to attach those benefits. As we see it,
       this amounts to a "conflict" under the Supremacy
       Clause--a conflict that the State cannot win.

Id. at 397.

We recognize that the language used by Congress in
protecting Social Security benefits in S 407(a) is not
precisely the same as the words it employed in S 5301(a)
regarding the attachment or seizure of a veteran’s disability
benefits. We agree with the Ninth Circuit, however, that "its
reach is essentially the same." Nelson, 271 F.3d at 895.

We next turn to the question whether the New Jersey
statutes are preempted under the Supremacy Clause
because they are inconsistent with S 5301(a). The ADTC
employees argue that the doctrine of preemption is not
applicable on several grounds. They first maintain that
there is no conflict between N.J. Stat. Ann. S 2C:43-3.1 and
S 5301(a). They assert that S 5301(a) is inapplicable because
the VCCB is not Higgins’s creditor and the deduction from
his inmate account was not accomplished by an
attachment, levy, or seizure under legal or equitable
process. We disagree. This contention ignores the
unambiguous intent of the New Jersey legislature in
enacting the Criminal Injuries Compensation Act of 1971
("CICA"). See N.J. Stat. Ann. S 52:4B-1 et seq. (West 2001).
The CICA created the Violent Crimes Compensation Board.
Id. S 52:4B-3.2 Under the provisions of the CICA, the VCCB
may order the payment of compensation for personal
injuries suffered by the victim of an aggravated sexual
assault. Id. SS 52:4B-2; 52:4B-11(b)(9).

Section 2C:43-3.1 provides for the collection of funds for
the VCCB through court-ordered fines assessed against
persons convicted of a crime of violence which resulted in
the injury of another person. The imposition of the VCCB
assessment is mandatory. Id. S 2C:43-3.1(a)(1). As noted
above, if the assessment is not paid at the time of
sentencing, the court must order the Department of
_________________________________________________________________

2. The name of the Violent Crimes Compensation Board was changed in
1995 to the Victims of Crime Compensation Board. N.J. Stat. Ann.
S 52:4B-3.1.

                                12


Corrections to collect the assessment during the period of
incarceration by deducting funds from the defendant’s
inmate account. Id. S 2C:43-3.1(a)(3). Under such
circumstances, employees of the Department of Corrections
are required to forward the amount collected to the VCCB.
Id.

The ADTC employees rely on the Fifth Circuit’s decision
in Department of Health & Rehabilitative Services v. Davis,
616 F.2d 828 (5th Cir. 1980), in support of their
proposition that the VCCB is not a creditor within the
meaning of S 5301(a). Their reliance on Davis is misplaced.
In Davis, the Florida Department of Health and
Rehabilitative Services filed an action seeking an order
granting it reimbursement of $12,000 for the care and
maintenance of an incompetent in the Florida State
Hospital. Id. at 829. During the years that the incompetent
was hospitalized, his guardian accumulated $40,000 in
Social Security and veteran’s benefits. Id. His guardian
refused to reimburse the Florida Department of Health and
Rehabilitative Services on the basis that the moneys
received from federal Social Security and veteran’s benefits
statutes were exempt from a creditor’s claims. Id. The
district court denied relief. Id. The Fifth Circuit reversed. Id.
It concluded that since the purpose of each federal statute
was to provide for the care and maintenance of its
beneficiaries, it was consistent with that goal to reimburse
a state agency that provided for an incompetent person’s
care and maintenance. Id. at 831-32.

In the matter sub judice, the intent of the New Jersey
Legislature in enacting the CICA was not aimed at
providing for the care and maintenance of persons
convicted of violent crimes. The CICA’s purpose is to
compensate victims of violent crimes for their injuries.
Moreover, subsequent to Davis, the Supreme Court
rejected, in the context of Social Security benefits, the very
argument the state made in Davis. Bennett, 485 U.S. at
397-98. As we have explained, the Supreme Court
interpreted the language of 42 U.S.C. S 407(a) as barring
Arkansas from retaining an inmate’s Social Security
benefits, regardless of its purpose in doing so. The very
similar mandatory and all-inclusive language ofS 5301(a)
requires the same conclusion here.

                                13


A creditor is a person or entity to whom a debt is owed.
Black’s Law Dictionary 375 (7th ed. 1999). A debtor is a
person who owes an obligation to another. Id. at 411.
Pursuant to the CICA, a court must order a person
convicted of a violent crime to pay an assessment to the
VCCB. N.J. Stat. Ann. S 2C:43-3.1(a)(1). The judgment is
enforceable by requiring employees of the New Jersey
Department of Corrections to seize the amount owing to the
VCCB from the inmate’s account. Id. S 2C:43-3.1(a)(3).
Thus, contrary to the position of the ADTC employees, the
VCCB is a creditor within the meaning of S 5301(a). The
CICA has created a creditor-debtor relationship between a
person convicted of the crime of aggravated sexual assault
and the VCCB that is enforceable by a court order.

The ADTC employees also maintain that the deduction of
funds derived from Higgins’s VA disability benefits check
did not violate S 5301(a) because it was not effected by
attachment, levy, seizure by or under any legal or equitable
process. As discussed above, the CICA requires a New
Jersey court to "specifically order the Department of
Corrections to collect the assessment during the period of
incarceration and to deduct the assessment . . . from any
personal account established in the institution for the
benefit of the inmate." N.J. Stat. Ann. S 2C:43-3.1. The
term "levy" is defined as the seizure of property to satisfy a
judgment. Black’s Law Dictionary, supra, at 919. We are
persuaded that the collection of funds from Higgins’s
inmate account by the ADTC employees was clearly a levy
or a seizure required by New Jersey law.

The ADTC employees further assert that N.J. Stat. Ann.
S 2C:43-3.1(a)(3) does not conflict with S 5301(a) because
New Jersey law "mandates the care, government and
maintenance of inmates by the Commissioner of the
Department of Corrections, thereby fulfilling the
Congressional intent of 38 U.S.C. S 5301(a)." Appellees Br.
at 19-20. The Supreme Court rejected a similar argument
in Bennett. There, the Court noted thatS 407(a) of the
Social Security Act does not contain "an ‘implied exception’
that would allow attachment of otherwise exempted federal
payments simply because the State has provided the
recipient with ‘care and maintenance.’ " 485 U.S. at 397.

                                14


Likewise, S 5301(a) does not contain an implied exception
which would allow the collection of funds derived from a VA
disability benefits check to compensate his or her crime
victim merely because New Jersey law requires the
Department of Corrections to provide for an inmate’s care
and maintenance.

As noted previously, Congress’s purpose in enacting
S 5301(a) was to "prevent the deprivation and depletion of
the means of subsistence of veterans dependent upon these
benefits as the main source of their income." Rose, 481
U.S. at 630. Section 2C:43-3.1(a)(3) expressly allows the
deduction of any funds located in an inmate’s personal
account. To the extent this statute allows the deduction of
funds derived from a VA disability benefits check, its
provisions conflict with S 5301(a). "A state law is in conflict,
and void under the supremacy clause, if it stands as an
obstacle to the accomplishment and execution of the full
purposes and objective of Congress." Finberg v. Sullivan,
634 F.2d 50, 63 (3d Cir. 1980) (en banc) (quotation
omitted). To the extent N.J. Stat. Ann. S 2C:43-3.1(a)(3)
authorizes prison officials to deduct funds derived from a
prisoner’s VA disability benefits check, it conflicts with the
purpose and objectives of Congress in enacting S 5301(a)
and is void under the Supremacy Clause.

B.

Higgins also challenges the dismissal of his claim that
the ADTC employees took his VA benefits without notice or
a hearing, in violation of his procedural due process rights
under the Fourteenth Amendment. The Fourteenth
Amendment prohibits the States from depriving "any person
of life, liberty, or property, without due process of law." U.S.
Const. amend. XIV, S 1. This Court has previously held that
"[i]nmates have a property interest in funds held in prison
accounts. Thus, inmates are entitled to due process with
respect to any deprivation of this money." Reynolds v.
Wagner, 128 F.3d 166, 179 (3d Cir. 1997) (citations
omitted). The Supreme Court has explained the
requirements of the Due Process Clause as follows:

       In situations where the State feasibly can provide a
       predeprivation hearing before taking property, it

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       generally must do so regardless of the adequacy of a
       postdeprivation tort remedy to compensate for the
       taking. Conversely, in situations where a
       predeprivation hearing is unduly burdensome in
       proportion to the liberty interest at stake, or where the
       State is truly unable to anticipate and prevent a
       random deprivation of a liberty interest,
       postdeprivation remedies might satisfy due process.

Zinermon v. Burch, 494 U.S. 113, 132 (1990) (citations
omitted).

Higgins alleged in his complaint that the ADTC
employees took money from his inmate account without
providing him with a predeprivation hearing. The ADTC
employees argue that they did not improperly deny Higgins
a predeprivation hearing because the New Jersey Torts
Claims Act provides Higgins with an adequate
postdeprivation remedy to seek money damages for the
seizure of his property. Higgins did not allege facts that
demonstrate that his funds were seized as the result of a
random, negligent, or unauthorized act of an ADTC
employee. Rather, Higgins alleged that the ADTC employees
were acting under the authority of an established state
procedure for seizing a prisoner’s funds to satisfy court-
ordered fines. The ADTC employees have argued before this
Court that they were acting pursuant to N.J. Stat. Ann.
S 2C:43-3.1(a)(3) when they deducted funds from Higgins’s
account. Thus, under Zinermon, Higgins was entitled to
notice and hearing before the ADTC employees deducted
money from his account.

Higgins has alleged sufficient facts to establish that he
was entitled to a predeprivation notice and hearing. 3
_________________________________________________________________

3. We note that the alleged violation of Higgins’s Fourteenth Amendment
right to due process occurred at the moment he was deprived of his
property interest without notice and a predeprivation hearing (i.e., when
the ADTC employees seized the money in his inmate account). Thus,
Higgins’s procedural due process claim would not be rendered moot even
if he is ultimately successful in recovering the $1,000 under his
S 5301(a) claim. In such a situation, Higgins would still be entitled to
nominal damages on a successful procedural due process claim despite
the fact that he may be unable to prove actual injury from the

                                16


Moreover, Higgins’s procedural due process rights are
enforceable under S 1983. See Zinermon, 494 U.S. at 125
("A S 1983 action may be brought for a violation of
procedural due process . . . ."). The district court erred in
dismissing Higgins’s procedural due process claim under
Rule 12(b)(6).

IV

The district court did not disclose the basis for the
dismissal of Higgins’s claim that the ADTC employees
retaliated against him because he exercised his federal
constitutional right to seek access to the courts for an
adjudication of his claims that he was deprived of his rights
under S 5301(a) and the Due Process Clause. A person may
state an independent cause of action for retaliation for the
exercise of his or her right of access to the courts,
regardless of whether the allegations of a deprivation of
federal statutory or constitutional rights are meritorious.
See White v. Napoleon, 897 F.2d 103, 111-12 (3d Cir. 1990)
("Retaliation for the exercise of constitutionally protected
rights is itself a violation of rights secured by the
Constitution actionable under section 1983."). The district
court erred in dismissing Higgins’s claim for retaliation for
the exercise of his rights under federal law.
Conclusion

Higgins’s complaint alleged sufficient facts to support a
S 1983 claim that he was deprived of his rights under
S 5301(a) and the Due Process Clause of the Fourteenth
Amendment. Accordingly, we VACATE the dismissal of this
action. Upon REMAND, the district court is directed to
_________________________________________________________________

deprivation of his property interest in the $1,000. See Carey v. Piphus,
435 U.S. 247, 266 (1978) (stating that "[b]ecause the right to procedural
due process is ‘absolute’ in the sense that it does not depend upon the
merits of a claimant’s substantive assertions, and because of the
importance to organized society that procedural due process be
observed, we believe that the denial of procedural due process should be
actionable for nominal damages without proof of actual injury" (citations
omitted)).

                                17


permit Higgins to amend his complaint so as to attempt to
allege a S 1983 retaliation claim for the exercise of his
federal rights.

Costs are awarded to Higgins.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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