                                                                                                                           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Precedential or Non-Precedential: Precedential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




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                                        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
