                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-10-2000

Tillman v. Lebanon Co. Corr. Facility
Precedential or Non-Precedential:

Docket 99-3656




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Filed May 10, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3656

LEONARD G. TILLMAN,
       Appellant

v.

LEBANON COUNTY CORRECTIONAL FACILITY;
ROBERT L. RAIGER, Warden

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 98-cv-01188)
District Judge: Honorable William W. Caldwell

Argued January 31, 2000

Before: MANSMANN, NYGAARD, and RENDELL,
Circuit Judges.

(Filed: May 10, 2000)

       Donald A. Bailey, Esquire (Argued)
       3540 N. Progress Avenue
       Suite 209
       Harrisburg, PA 17110

        Counsel for Appellant

       Todd B. Narvol, Esquire (Argued)
       Thomas, Thomas & Hafer, LLP
       305 N. Front Street
       P.O. Box 999
       Harrisburg, PA 17108-0999

        Counsel for Appellees
OPINION OF THE COURT

MANSMANN, Circuit Judge.

Leonard G. Tillman is a former prisoner who was
assessed a fee of $10.00 per day for housing costs
stemming from two periods of incarceration in a county
facility for state parole violations. When Tillman was
confined for the second term, officials confiscated half of
the funds in his wallet and half of all funds sent on his
behalf, in order to pay for the assessments. Tillman
ultimately accumulated a debt exceeding $4,000.00, for
which his account was turned over to a collection agency
after his release from prison.

In a pro se complaint filed against the prison and its
warden, Tillman alleged that the levying and collection of
these sums violated 42 U.S.C. S 1983. The defendants
moved for dismissal, or in the alternative, for summary
judgment, but the Magistrate Judge recommended denial of
the motion on the basis of an analysis of the Eighth and
Fourteenth Amendments. After the defendants filed
supplemental affidavits, the District Court granted
summary judgment and dismissed the complaint. We will
affirm.

I. Facts

The underlying facts are, as Tillman concedes,
"essentially undisputed." After committing unspecified
parole violations, Tillman was incarcerated in the Lebanon
County Correctional Facility in Pennsylvania between
January 30, 1997 and August 21, 1997. Parole was again
granted, but similar violations led to his recommitment to
the same facility on October 24, 1997.

Upon recommitment, prison authorities confiscated half
of the money in Tillman's wallet and subsequently took half
of all funds sent on his behalf. These actions were taken
pursuant to the facility's Cost Recovery Program. Under
this program, prisoners are assessed a daily charge of
$10.00 towards their housing expenses. Any money

                                2
generated through the program goes into the county's
general fund, which pays the facility's operating costs.

Significantly, the availability of prison services is not
contingent upon keeping a clean account. Failure to pay
does not result in the denial of room, board, clothing, or
other services. Neither can it result in extended prison time
or reincarceration.

Instead, when a prisoner lacks sufficient funds to pay the
assessments, a negative account balance is created.
Authorities may then take half of any funds, from any
source, sent to a prisoner in order to satisfy the negative
balance. Any remainder is credited to the prisoner's inmate
account for his or her personal use.

If there is still an outstanding negative balance upon a
prisoner's release from jail, any funds remaining in his or
her inmate account are put towards the debt. If any debt
still remains unpaid upon release, the ex-prisoner remains
responsible for the debt as a civil liability. The prison
attempts to work out a payment plan, but if the debt
remains unpaid after release, the account may be turned
over to a collection agency. Warden Robert L. Raiger notes
in an affidavit, however, that an account will not be turned
over for collection if the ex-prisoner maintains a minimal
payment such as $5.00 per week. The outstanding balance
is also kept on the prison's records, so if the ex-prisoner is
later reincarcerated, the prior debt remains in full force
while new debt begins to accumulate.

Because Tillman had not paid off the assessments from
his previous term of incarceration, he had an outstanding
balance upon recommitment. Consequently, as noted,
authorities confiscated half the money in his possession
and took half of all funds sent on his behalf to satisfy the
debt. The confiscated funds still did not satisfy the
assessments, however, leaving the plaintiff with a debt of
over $4,000.00 after his final discharge in July of 1998. His
account was ultimately turned over to a collection agency.

Not all prisoners fall within the Cost Recovery Program.
"Trusty" inmates, who perform work assignments that are
essential to the day-to-day operation of the prison, are
excused from the program. Also excused are prisoners

                               3
participating in the Work Release Program because they are
already required to pay a minimum of $70.00 per week
towards their room and board.

Authorities mistakenly failed to assess the fees against
one inmate, Anthony Ashford, who had previously been
exempt as a work release prisoner. After Ashford was
removed from the Work Release Program, authorities
neglected to begin charges under the Cost Recovery
Program. Upon receiving notice via the plaintiff 's
complaint, however, they back-charged Ashford's account.

The Cost Recovery Program had been put into effect prior
to both terms of the plaintiff 's parole violation
incarceration. It was adopted by the Lebanon County
Prison Board on June 19, 1996, and effective July 1 of that
year. At that time, a memorandum regarding the program
and a copy of the program itself were posted throughout the
prison. When Tillman was incarcerated in January of 1997,
these notices were still posted in all cell blocks, including
the one to which he had access.

At that time, Tillman was also given an inmate handbook
detailing the prison's grievance program, which allowed
prisoners to "state any grievance concerning any matter
you feel is unjust . . . ." In June of 1997, during the
plaintiff 's initial term of parole violation incarceration, the
handbook was updated to include a description of the Cost
Recovery Program, as well as an expanded grievance
program that allowed for direct appeal to the warden. The
plaintiff was given a copy of the updated handbook, and
upon recommitment in October of 1997, was again provided
with a copy.

Although prisoners were assessed $10.00 per day
through the Cost Recovery Program, the actual cost of the
plaintiff 's room and board amounted to $32.00 per day.
Incarcerated in a county facility, however, the plaintiff here
was a state prisoner. Although the plaintiff 's pro se
complaint alleged that the state reimbursed the county
prison for his costs of incarceration, an affidavit filed by
Lebanon County Commissioner William G. Carpenter states
that no such repayment is given to the county facility for
prisoners who are committed for state parole violations.

                                4
While still incarcerated,1 the plaintiff filed a pro se
complaint in the United States District Court for the Middle
District of Pennsylvania on July 22, 1998. He named as
defendants Warden Raiger and the Lebanon County
Correctional Facility. In the complaint, the plaintiff charged
violations of 42 U.S.C. S 1983 arising from the daily
assessments, which were imposed despite the alleged fact
that the "[s]tate pays county" for his expenses. He further
claimed that the prison took half the money in his wallet
and half of the money orders "sent in to help me live
better." He complained that "some" inmates were not
charged and that prisoner Anthony Ashford was neither
charged nor had any money taken from him. Tillman also
made cursory references to assessments for medical
treatment and to "false incarceration."

After the plaintiff was granted permission to proceed in
forma pauperis, the defendants moved for dismissal under
Fed. R. Civ. P. 12(b)(6), or in the alternative, for summary
judgment under Rule 56(c). Counsel subsequently entered
an appearance on the plaintiff 's behalf andfiled a
response.

A Magistrate Judge treated the defendants' motion as one
for summary judgment and in a memorandum opinionfiled
April 9, 1999, recommended that the motion be denied.
Although Tillman did not specify any particular legal theory
or authority in his response, the Magistrate Judge engaged
in a detailed analysis of the Eighth and Fourteenth
Amendments. First, held the Magistrate Judge, although
prisoners could avoid medical fees by declining to seek
treatment, they could not avoid residing in an institution.
That fact and the amount of debt created a triable question
of fact regarding cruel and unusual punishment. Second, it
could not be shown as a matter of law that the fees were
not excessive fines in violation of the Eighth Amendment.
Third, the defendants failed to demonstrate what due
process, if any, was provided to the plaintiff. Finally, the
Court held that it lacked sufficient information to conclude
that there was no material question of fact regarding any
equal protection claim.
_________________________________________________________________

1. The plaintiff was subsequently released on July 25, 1998 because of
the expiration of the maximum underlying sentence.

                               5
The defendants objected to the Magistrate Judge's report
and filed supplemental affidavits from Warden Raiger and
Commissioner Carpenter. They detailed the notice given to
prisoners, the availability of grievance procedures, and
asserted that the prison was not reimbursed by the state
for maintenance expenses. The defendants provided copies
of relevant sections from the superceded and updated
prisoner handbooks. They also stated that the Cost
Recovery Program was not intended to punish, but rather
to rehabilitate by teaching inmates financial responsibility
by sharing in the costs of their food, housing, clothes, and
protection.

The District Court granted summary judgment to the
defendants and dismissed the plaintiff 's complaint in an
opinion filed on August 2, 1999. Due in part to the
additional evidence, the District Court took a very different
approach to the case. First, as to the claim of cruel and
unusual punishment, the Court found dispositive our
opinion in Reynolds v. Wagner, 128 F.3d 166 (3d Cir.
1997), where we held that charging prisoners fees for
medical treatment was not prohibited by the Constitution,
so long as they were provided with care even when they
could not afford to pay the fees.

As in Reynolds, held the District Court, Tillman was
never denied any basic human need. That a prisoner might
leave jail with a debt was irrelevant. Disagreeing with the
Magistrate Judge, the District Court also found it legally
immaterial that a prisoner could forgo medicine but could
not decline housing services.

Second, the Court rejected the "excessive fines"
argument. Although the District Court doubted that the
fees amounted to a "fine," it concluded that even if they
were fines, they were not excessive because the costs of
incarceration by definition cannot be disproportionate to
the offense. Third, the due process claim was rejected
because the notice given and postdeprivation remedy
available through the grievance procedure were
constitutionally adequate. Finally, the Court held that equal
protection was not violated because trusty and work release
inmates were taught financial responsibility, respectively,
by being provided with labor opportunities and by being

                               6
required to make payments of at least $70.00 per week. The
District Court therefore dismissed the case in its entirety.
Tillman timely appealed.

The District Court properly exercised jurisdiction under
28 U.S.C. SS 1331, 1343(a)(3). Our jurisdiction is premised
on 28 U.S.C. S 1291. We exercise plenary review, accepting
the non-movant's allegations as true, and drawing
inferences in the light most favorable to him. Meritcare Inc.
v. St. Paul Mercury Ins. Co., 166 F.3d 214, 223 (3d Cir.
1999). The grant of summary judgment must be affirmed if
"there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of
law." Fed. R. Civ. P. 56(c).

II. Discussion

We initially note that a number of states authorize
charges against a prisoner's wages or inmate account.2
Courts have consistently found that there is no
constitutional impediment to deducting the cost of room
and board from a prisoner's wages.3 In one case similar to
the dispute before us, a state supreme court upheld daily
_________________________________________________________________

2. Some statutes allow for deductions from a prisoner's wages. See, e.g.,
Ariz. Rev. Stat. Ann. S 41-1622, stat. note; Iowa Code Ann. S 904.701(2);
Minn. Stat. Ann. S 243.23(2); Mo. Ann. Stat.S 217.435(2); Neb. Rev. Stat.
Ann. S 83-184(b)(3). Other statutes provide for general authority to
recover the cost of incarceration. See, e.g., Ark. Code Ann. S 12-29-501
et seq.; Fla. Stat. Ann. S 960.293(2); Iowa Code Ann. S 356.7(1); Mich.
Comp. Laws Ann. S 800.404(8); Minn. Stat. Ann.S 243.23(3).

3. See, e.g., Christiansen v. Clarke, 147 F.3d 655, 657 (8th Cir. 1998);
Mastrian v. Schoen, 725 F.2d 1164, 1166 (8th Cir. 1984); Iowa v. Love,
589 N.W.2d 49, 52 (Iowa 1998); Cumbey v. Oklahoma, 699 P.2d 1094,
1097 (Okla. 1985). Other courts have decided non-constitutional
disputes arising under such statutes without noting any constitutional
impediment to the statutes' application. See, e.g., Ford v. Arizona, 979
P.2d 10, 11, 13 (Ariz. Ct. App. 1999); Iowa v. Jackson, 601 N.W.2d 354,
356-57 (Iowa 1999); State Treasurer v. Gardner , 583 N.W.2d 687, 690
(Mich. 1998); cf. Auge v. New Jersey Dep't of Corrections, ___ A.2d ___,
No. A-3472-98T1, 2000 WL 17309, *6 (N.J. Super. Ct. App. Div. Jan. 3,
2000) (ten percent surcharge on prisoner purchases would be acceptable
on alternative ground of defraying "substantial costs" of food, clothing,
medical care, and other necessities).

                               7
assessments of $50.00 that became, in effect, civil
judgments against the prisoners. Ilkanic v. City of Fort
Lauderdale, 705 So. 2d 1371, 1372-73 (Fla. 1998). Federal
law acknowledges that a prisoner's wages might be subject
to deductions for room and board. 18 U.S.C. S 1761(c)(2)(B).
In addition, we have noted in dictum that "sparing the
taxpayers the cost of imprisonment would likely be a
constitutionally permissible governmental purpose." United
States v. Spiropoulos, 976 F.2d 155, 168 (3d Cir. 1992).

In reviewing prison regulations, we ask whether the
regulation is reasonably related to a legitimate penological
interest. Turner v. Safley, 482 U.S. 78, 89 (1987).4 We share
the Magistrate Judge's skepticism over whether the Turner
standard is applicable to the Cost Recovery Program, which
by its own title might be more properly understood as a
transfer of funds than a way to regulate prison behavior.
We need not determine whether Turner is controlling
because in either case, no constitutional violation has
occurred.

The complaint charged a violation of 42 U.S.C. S 1983
from the alleged "swindling [of] state prisoner[s]" under the
Cost Recovery Program.5 The parties now focus on the
_________________________________________________________________

4. Under Turner, we look to:

         (1) the rational relationship between the regulati on and the
         governmental interest put forward to justify it;

         (2) the existence of alternative means to exercise   the asserted
right;

         (3) the impact on prison resources of accommodatin g the asserted
         right; and

         (4) the existence of "ready alternatives" to accommodate the
         asserted right at "de minimis" cost to valid penological interests

Reynolds v. Wagner, 128 F.3d 166, 172 (3d Cir. 1997).

5. The pro se complaint further alleges that the plaintiff was subjected
to
false incarceration and that he was charged fees to see a doctor. The
plaintiff notes that he has a separate pending action regarding any claim
that he was held prisoner beyond his legal sentence. That claim is
therefore not before us.

On appeal, the plaintiff -- apparently in the context of discussing the
room and board fees -- makes a number of somewhat jumbled factual
8
Cruel and Unusual Punishments and Excessive Fines
Clauses of the Eighth Amendment, and the Due Process
and Equal Protection Clauses of the Fourteenth

Amendment. We will address these provisions in turn. 6

A. Eighth Amendment

1. Cruel and Unusual Punishments

The Cruel and Unusual Punishments Clause of the
Eighth Amendment7 proscribes"punishments which are
incompatible with the evolving standards of decency that
mark the progress of a maturing society." Estelle v. Gamble,
429 U.S. 97, 102 (1976) (internal quotes omitted).
Prohibited are punishments that "involve the unnecessary
and wanton infliction of pain, or are grossly
_________________________________________________________________

allegations about medical care in the argument portion of his brief. He
admits that no such facts were put before the District Court due to the
"flaccidity" of counsel's brief. Opening Br. at 9. Further, counsel does
not
assert that these facts are specific to the plaintiff 's situation,
instead
appearing to relate to general matters that "[c]ounsel is told." Id.

The defendants properly complain that we should not consider these
facts, which are of dubious relevance to this appeal in any case.
Although we normally hold pro se complaints to a "less stringent"
standard than formal pleadings drafted by lawyers, Micklus v. Carlson,
632 F.2d 227, 236 (3d Cir. 1980), the plaintiff here has been represented
by counsel since the defendants filed their dispositive motions. The
plaintiff has not filed any affidavits, has not put forth cognizable
argument, and in this context, does not cite to relevant authority. The
plaintiff 's "passing reference in a brief will not suffice to bring that
issue
before this court." Simmons v. City of Philadelphia, 947 F.2d 1042, 1066
(3d Cir. 1991).

6. Although the pro se complaint did not identify any particular theory of
recovery, the Magistrate Judge gave it a generous reading and focused
his analysis on the Eighth and Fourteenth Amendments. The plaintiff,
through counsel, now points to those provisions in his statement of the
issues presented for review. Although we address those issues, we
decline to consider whether any other legal theory might provide for
recovery.

7. The Eighth Amendment states in full: "Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted."
9
disproportionate to the severity of the crime." Rhodes v.
Chapman, 452 U.S. 337, 346 (1981) (citations and internal
quotes omitted).

Prison conditions may amount to cruel and unusual
punishment if they cause "unquestioned and serious
deprivations of basic human needs . . . . [that] deprive
inmates of the minimal civilized measure of life's
necessities." Id. at 347. Accordingly, when the government
takes a person into custody against his or her will, it
assumes responsibility for satisfying basic human needs
such as food, clothing, shelter, medical care, and
reasonable safety. DeShaney v. Winnebago Co. Dep't of
Social Svcs., 489 U.S. 189, 199-200 (1989).

To demonstrate a deprivation of his basic human needs,
a plaintiff must show a sufficiently serious objective
deprivation, and that a prison official subjectively acted
with a sufficiently culpable state of mind, i.e., deliberate
indifference. Nami v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996)
(citing Wilson v. Seiter, 501 U.S. 294 (1991)).

In City of Revere v. Massachusetts General Hospital, 463
U.S. 239 (1983), a hospital sued a city for the cost of
treating a person shot by a police officer. The Court held
that although the city was responsible for ensuring that
medical care was provided, the Constitution did not dictate
the allocation of costs between the city and the hospital. Id.
at 245. In so holding, the Court noted that "[n]othing we
say here affects any right a hospital or governmental entity
may have to recover from a detainee the cost of the medical
services provided to him." Id. at 245 n.7. The Court thus
hinted that so long as treatment was provided, the cost of
the services might be recovered from the detainee who
received the benefit of the medical treatment.

We made a similar assumption in Monmouth County
Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326
(3d Cir. 1987), where female prisoners were required to
obtain their own financing to obtain elective abortions.
Looking to the deliberate indifference standard, we held
that regardless of an inmate's inability to pay, the
government was obliged to provide medical services for
those inmates in its custody. Id. at 350. In so holding,

                                10
however, we held that the government's additional
obligation to pay for these services was contingent upon a
lack of "alternative methods of funding." Id. at 351. We
thus assumed that where an inmate could secure her own
funding, it would not be unreasonable to make her pay her
way.

These cases demonstrate that both the Supreme Court
and our Court anticipated cases where the state would be
responsible for ensuring the provision of care, but might
seek reimbursement from the party receiving the benefit of
the care. We squarely faced that situation in Reynolds v.
Wagner, 128 F.3d 166 (3d Cir. 1997), where prisoners were
required to pay fees in order to obtain medical treatment.
The program's purpose was to instill financial responsibility
and to discourage abuse of sick call. Where a nurse or
physician determined that sick call was warranted,
however, the fee would be waived. Further, certain services,
such as emergency care, psychiatric services, and other
treatments were exempt from the fee requirement.

The facts of that case are strikingly similar to the appeal
presently before us. In Reynolds, no inmate was refused
treatment because of a lack of funds. Instead, the
prisoner's account was debited, and if the available funds
were insufficient, a negative balance would be created. Half
of all incoming funds could be used to satisfy the negative
balance. Upon departure from the facility, the unpaid debt
could be turned over to a collection agency. If the inmate
was recommitted, the debt remained in full force.

In that case, we rejected the argument that imposing a
fee was per se unconstitutional. The plaintiffs were not
denied medical care; further, "[i]f a prisoner is able to pay
for medical care, requiring such payment is not deliberate
indifference to serious medical needs." Id. at 174 (internal
quotes eliminated). In the outside world, the plaintiffs
would have to pay for medical care. Id. Further, the
proffered purposes -- teaching fiscal responsibility and
deterring sick-call abuse -- were obviously reasonably
related to legitimate penological interests. Id. at 175.

In light of the caselaw, we conclude that Tillman has not
shown that he has been subjected to cruel and unusual

                                11
punishment. Undisputed evidence shows that the Cost
Recovery Program is intended to teach fiscal responsibility
to inmates. The plaintiff, who has since been released, is
now expected by society to pay his own room and board.
Teaching him such a skill while in prison amply satisfies
Turner's requirement that the program be reasonably
related to a legitimate penological interest. Turner, 482 U.S.
at 89; James v. Quinlan, 866 F.2d 627, 630 (3d Cir. 1989).

Regardless of Turner's applicability, we reach the same
conclusion. Tillman's sentence was not extended, nor was
he reincarcerated for failure to satisfy his debt. More
importantly, he cannot show that basic human needs were
left unsatisfied. He was never denied room, food, or other
necessities, regardless of his failure to pay the fees. See
Rhodes, 452 U.S. at 348 (double celling did not deprive
prisoners of food, care, or sanitation, increase violence or
create other intolerable conditions). This is simply not a
case like Lanzaro, where necessary services were denied
because a prisoner lacked the funds to pay.

We note that Reynolds also considered and rejected an
"as implemented" challenge to the disputed medical fees.
We concluded there that such a challenge must fail
because, inter alia, the "inmates have not pointed out
evidence showing that they need this money for any vital
expenses." Reynolds, 128 F.3d at 177. The plaintiff 's
argument here suffers from the same shortcoming. He
complains in the abstract that prisoners need funds to pay
for "essentials like toiletries, stamps, extra blankets[,] etc."
He does not, however, identify how the program caused him
to be denied his own "basic human needs." Cf. City of
Revere, 463 U.S. at 245 (so long as the necessary services
are provided, "the Constitution does not dictate" the
allocation of costs).

Along these lines, we disagree with the Magistrate Judge
that Reynolds is distinguishable because a prisoner might
choose to forgo medical care, but cannot refuse to reside in
an institution. The District Court correctly concluded that
this distinction is without legal import. The fundamental
question before us is whether basic human needs were
denied to the plaintiff because of the defendants' deliberate
indifference. In both Reynolds and the present case, the

                               12
defendants did not directly deny serious necessities to the
prisoner plaintiffs; and in neither case did the plaintiffs
present evidence to show that, due to the defendants'
deliberate indifference, they were faced with a Hobson's
choice between paying fees and purchasing necessities.
Reynolds, 128 F.3d at 178.

We also reject the plaintiff 's complaint that he is now
burdened with post-incarceration debt. A similar argument
was presented in Reynolds, where we noted that "[t]here is,
of course, no general constitutional right to [be] free" of "a
personal expense that [the plaintiff] can meet and would be
required to meet in the outside world." Id. at 173-74. If
Tillman truly cannot meet his financial obligations, then his
concerns would be more appropriately addressed in a
federal bankruptcy court. That he is unhappy to be saddled
with debt is understandable, but in the present
circumstances, does not implicate the Cruel and Unusual
Punishments Clause.8

2. Excessive Fines

By its plain language, the Excessive Fines Clause of the
Eighth Amendment is violated only if the disputed fees are
both "fines" and "excessive." See United States v.
Bajakajian, 118 S. Ct. 2028, 2033, 2036 (1998). 9 We
_________________________________________________________________

8. The Magistrate Judge was concerned that the amount of debt
accumulated raised a factual dispute as to whether a cruel and unusual
punishment was shown. The only pertinent question in the present
context, however, is whether the plaintiff 's basic human needs were met.
Although a potentially insurmountable debt might implicate the Cruel
and Unusual Punishments Clause in theory, we agree with the District
Court that under these circumstances, the question of whether a debt is
"grossly disproportionate to the severity of the crime," Estelle, 429 U.S.
at 103 n.7, is a matter more appropriately considered within the
auspices of the Excessive Fines Clause, as discussed in the next
subsection.

9. The Excessive Fines Clause of the Eighth Amendment, once virtually
ignored, has been "rescued from obscurity" in recent years. Department
of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 803 n.2 (1994)
(Scalia, J., dissenting). The text of the Eighth Amendment was directly
based on Art. I, S 9 of the Virginia Declaration of Rights, which in turn

                               13
conclude that the Cost Recovery Program does not amount
to an excessive fine.

The term "fine" refers to punishment for a criminal
offense. Browning-Ferris Industries of Vt., Inc. v. Kelco
Disposal, Inc., 492 U.S. 257, 265 (1989). The fees here,
however, do not appear to fit that mold. A prisoner's term
of incarceration cannot be extended, nor can he be
reincarcerated, for failure to pay a negative balance. The
daily fees do not vary with the gravity of the offense and
can neither be increased nor waived. Rather than being
used to punish, the undisputed evidence shows that the
fees are designed to teach financial responsibility. More
fundamentally, the fees can hardly be called fines when
they merely represent partial reimbursement of the
prisoner's daily cost of maintenance, something he or she
would be expected to pay on the outside.10

The District Court passed on the "fines" issue because of
an apparent nagging concern over whether the payments
are "in part, punitive." If the assessments and confiscations
under the Cost Recovery Program "can only be explained as
serving in part to punish," they are "punishment" for
purposes of the Excessive Fines Clause, even if they may
_________________________________________________________________

was taken verbatim from the English Bill of Rights. Browning-Ferris
Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 266 (1989)
(quoting Solem v. Helm, 463 U.S. 277, 285 n.10 (1983)). The Eighth
Amendment received scant debate in the First Congress, and the
Excessive Fines Clause received none. Id. at 294 (O'Connor, J.,
concurring in part and dissenting in part). This is unsurprising because
at least eight of the original States had a provision similar to the
Excessive Fines Clause. Id. at 264 & n.5 (op. of the Court).

10. In his pro se complaint, Tillman alleges that the county prison is
reimbursed by the state for his costs of room and board, thus suggesting
that the prison profited from the fees that he was charged. The
defendants subsequently asserted in an affidavit that the county prison
is not reimbursed for a state prisoner such as the plaintiff, who was
reincarcerated for parole violations. The plaintiff has not submitted an
affidavit or other evidentiary material to dispute the defendants'
affidavit
to the contrary. In this situation, an adverse party may not rest upon
mere allegations in his pleadings, and any inconsistency does not give
rise to a disputed question of material fact. Fed. R. Civ. P. 56(e).

                                14
also be understood to serve remedial purposes. Austin v.
United States, 509 U.S. 602, 610, 620-21 (1993). The Court
also correctly noted, however, that the undisputed record
indicates that the program was imposed for rehabilitative
and not punitive purposes.

We need not reach that issue. Even assuming that there
is a factual question as to whether the Cost Recovery
Program amounts to a fine, we hold that it is not excessive.
Under the principle of "proportionality[, t]he amount of the
forfeiture must bear some relationship to the gravity of the
offense that it is designed to punish." Bajakajian, 118 S.
Ct. at 2036. The plaintiff 's underlying offenses included a
conviction for possession with intent to deliver
approximately 29 grams of cocaine in violation of 35 P.S.
S 780-113(a)(30), which allows for a fine not to exceed
$100,000.00. Id. S 780-113(f)(1.1).

Here, the plaintiff accumulated debt of roughly
$4,000.00. It can hardly be said that a sum that is less
than one-twentieth the legally permissible fine is"grossly
disproportional to the gravity of a defendant's offense."
Bajakajian, 118 S. Ct. at 2036; see also Yskamp v. Drug
Enforcement Admin., 163 F.3d 767, 773 (3d Cir. 1998)
(forfeiture of property valued at over $500,000.00 in drug
case not excessive). We will not speculate on the result we
would reach where the offense was significantly less
serious, or where the daily fees or total debt were
significantly higher. Cf. Ilkanic, 705 So. 2d at 1372-73
(rejecting due process and equal protection challenges to
statute that provided for assessment of $50.00 per day for
"damages and losses for incarceration costs and other
correctional costs"). Under the circumstances presently
before us, however, we conclude as a matter of law that the
amounts were not "excessive" under the Eighth
Amendment.

B. Fourteenth Amendment

1. Due Process

Under procedural due process, the plaintiff 's interest
must fall within the scope of "life, liberty, or property."
Hewitt v. Helms, 459 U.S. 460, 466 (1983). The defendants

                                15
properly concede that the plaintiff has a property interest in
his prison account, Reynolds, 128 F.3d at 179, but insist
that he was provided with adequate procedural due
process. We agree.

In considering a due process claim, we look to the private
interest, the governmental interest, and the value of the
available procedure in safeguarding against an erroneous
deprivation. Id.; see also Mathews v. Eldridge, 424 U.S.
319, 335 (1976). Due process " `is flexible and calls for such
procedural protections as the particular situation
demands' " in order to "minimiz[e] the risk of error."
Greenholtz v. Inmates of the Nebraska Penal and Corr.
Complex, 442 U.S. 1, 12-13 (1979) (quoting Morrissey v.
Brewer, 408 U.S. 471, 481 (1972)). "The amount of notice
due depends on the context." Reynolds, 128 F.3d at 179
(citing Gilbert v. Homar, 117 S. Ct. 1807, 1812 (1997)).

In some cases, takings of property by the State require
predeprivation notice and a hearing. Parratt v. Taylor, 451
U.S. 527, 538 (1981), overruled on other gds. , Daniels v.
Williams, 474 U.S. 327 (1986).11 But where the State must
take quick action, or where it is impractical to provide
meaningful predeprivation process, due process will be
satisfied by a meaningful postdeprivation remedy. Id. at
539. "In such cases, the normal predeprivation notice and
opportunity to be heard is pretermitted if the State provides
a postdeprivation remedy." Id. at 538."Parratt is not an
exception to the Mathews balancing test, but rather an
application of that test to the unusual case in which one of
the variables in the Mathews equation -- the value of
predeprivation safeguards -- is negligible in preventing the
kind of deprivation at issue." Zinermon v. Burch, 494 U.S.
113, 129 (1990).12
_________________________________________________________________

11. Daniels overruled Parratt only to the extent that the earlier case
held
that a mere lack of due care may deprive an individual of "life, liberty,
or property under the Fourteenth Amendment." Daniels, 474 U.S. at
330-31.

12. We recognize that some cases hold that Parratt does not apply where
an " `established state procedure' " destroys an entitlement without
proper procedural safeguards. See, e.g. , Logan v. Zimmerman Brush Co.,
455 U.S. 422, 436 (1982) (quoting Parratt, 451 U.S. at 541); Brown v.

                               16
It is impractical to expect the prison to provide
predeprivation proceedings under these circumstances. As
the takings and assessments pass substantive
constitutional muster,13 we only need ask whether the
attendant procedure is also constitutionally adequate. It is.
The assessments and takings pursuant to the program
involve routine matters of accounting, with a low risk of
_________________________________________________________________

Trench, 787 F.2d 167, 171 (3d Cir. 1986). In such a case, a
predeprivation hearing is still required. Brown , 787 F.2d at 171.
However, the Supreme Court has since noted in an ex parte forfeiture
case, i.e., one that involves established state procedures, that in
"extraordinary situations," predeprivation notice and hearings are
unnecessary. United States v. James Daniel Good Real Property, 510 U.S.
43, 53 (1993). The case before us presents such an"extraordinary
situation." As we held in Reynolds, "a prison must have the ability to
deduct fees from an inmate's account even when the inmate refuses to
grant authorization." Reynolds, 128 F.3d at 180. Thus, if the available
postdeprivation procedure is adequate, then that is all the process to
which the plaintiff is due under these circumstances.

13. As noted in the previous section, the Cost Recovery Program does not
violate the Eighth Amendment. Also, we do not see a substantive due
process violation. Substantive due process rights"are at least as great as
the Eighth Amendment protections available to a convicted prisoner."
City of Revere, 463 U.S. at 244. We need only note that we have
considered and rejected the plaintiff 's Eighth Amendment arguments.
Further, we considered a substantive due process claim arising under
almost identical circumstances in Reynolds, 128 F.3d at 182, and see no
need to find differently here.

We acknowledge that in United States v. Spiropoulos, 976 F.2d 155 (3d
Cir. 1992), we held that former U.S.S.G. S 5E1.2(i) violated the Due
Process Clause of the Fifth Amendment. Id. at 169. That Guideline
required sentencing judges to order defendants to pay the costs of their
imprisonment. Our decision in Spiropoulos, however, was premised on a
lack of authority in the Sentencing Reform Act to assess fines to recoup
the costs of incarceration. Id. at 165. Further, the funds collected under
U.S.S.G. S 5E1.2(i) were not put towards prison costs, but instead placed
into the Crime Victims Fund. The present case differs materially from
Spiropoulos. Authorization for the Cost Recovery Program was specifically
granted by the Lebanon County Prison Board. In addition, any funds
raised under the Cost Recovery Program are put into the county's
general fund, which in turn finances the county prison. In sum, any
substantive theories proffered by the plaintiff fail.

                               17
error. To the extent that mistakes such as erroneous
assessments or incorrect takings might occur, they may be
corrected through the prison's grievance program without
any undue burden on a prisoners' rights. On the other
hand, to require predeprivation proceedings for what are
essentially ministerial matters would significantly increase
transaction costs and essentially frustrate an important
purpose of the program, which is to reduce the county's
costs of incarcerating prisoners.

The plaintiff had adequate notice of the grievance
program and of the Cost Recovery Program. Upon
confinement in January of 1997, notice of the Cost
Recovery Program and a copy of it were still posted in the
plaintiff 's cell block. Also, Tillman was given a handbook,
which described the prison grievance procedure. When the
handbook was updated to include the Cost Recovery
Program and an expanded grievance procedure, the plaintiff
was given a copy of that as well. He was given an additional
copy of the handbook upon reconfinement in October of
1997. The grievance program allowed prisoners to complain
about "any" matter that is "unjust," and as updated, also
provided for direct appeal to the warden.

In sum, the plaintiff had an adequate postdeprivation
remedy in the grievance program. In Reynolds, we held that
the existence of a similar grievance program provided a
sufficient remedy. 128 F.3d at 181. In sum, the plaintiff
had an adequate postdeprivation remedy, thereby satisfying
due process.14

We also note that there is no due process violation in the
fact that the plaintiff 's account was turned over for
collection. He could have avoided this turn of events by
making payments as low as $5.00 a week on his debt.
_________________________________________________________________

14. The plaintiff does not argue that advance notice of the program was
required. In any case, because an adequate postdeprivation remedy
exists, no advance notice was necessary. Even if advance notice were
necessary, it was satisfied under the facts of this case. The plaintiff 's
property right in his inmate account did not vest until he was
incarcerated for parole violations. At that time, he was given notice of
the
existence of the program and the grievance procedure. Due process does
not require more.

                                18
The plaintiff also complains that the prison lacked
authority to implement the Cost Recovery Program, but we
find no problem in that arena as well. Although we have
not uncovered a statute explicitly providing for the
deductions at issue here, the Cost Recovery Program was
duly promulgated, not by the state, but by the county
prison board, which has "exclusive[ ]" authority regarding
"the government and management" of the facility. 61 P.S.
S 408(a)(1).15 Other courts have not seen barriers to the
_________________________________________________________________

15. Because Lebanon County is a county of thefifth class, its prison
board is "exclusively vested" with "the safe-keeping, discipline, and
employment of prisoners, and the government and management of said
institution." 61 P.S. S 408(a)(1). The board "shall make such rules and
regulations . . . as may be deemed necessary." Id. S 409. Thus, the
prison board indeed has the authority to promulgate the Cost Recovery
Program.

Our conclusion is unchanged by 61 P.S. S 410, which states that "all
the expenditures required for the support and maintenance of prisoners,
the repairs and improvement of said prison, shall be paid from the
county treasury by warrants drawn, in the mode now prescribed by law,
on the regular appropriation for the purpose." Wefirst note that any
funds obtained through the Cost Recovery Program are placed into the
county's general fund, out of which all prison expenses -- including
prisoner maintenance -- are duly paid in accordance with section 410.
Thus, the Cost Recovery Program is not in violation of this statute.

But we need not rest our conclusion on the mere mechanics of
accounting. Reading section 410 as a whole makes it clear that its focus
is on the proper procedures for payments, accounting, and contracting.
See id. ("no warrant shall be certified by the controller for any expense
connected with the prison unless on vouchers approved by a majority of
said board and endorsed by the president and secretary thereof, and all
contracts involving an expenditure of funds from the county treasury
shall be made in accordance with [the law]").

More fundamentally, section 410 is utterly silent regarding the
permissible sources of funds that go into the treasury. We do not read
this silence to support the plaintiff 's argument. Rather, section 410
simply requires that creditors be paid in the first instance by the
county.
In no way does it prohibit the recovery of costs from those who receive
the benefits of those expenditures. To conclude otherwise would be
contrary to Reynolds, where we upheld similar prisoner assessments. In
sum, because sections 408 and 409 expressly grant broad and exclusive
authority to the prison board, we reject the plaintiff 's suggestion that
the board lacked the authority to promulgate the Cost Recovery Program.

                               19
promulgation of such programs by prisons and prison
officials, and neither do we. See Reynolds, 128 F.3d at 170,
183 (upholding program that was created by county
prison); Mastrian, 725 F.2d at 1165-66 (upholding
programs instituted by correctional officials).

2. Equal Protection

Nor do the facts show a violation of the Equal Protection
Clause. Under that provision, persons who are similarly
situated should be treated in the same manner. City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439
(1985). Because the distinctions at issue here do not
implicate a suspect or quasi-suspect class, the state action
here is presumed to be valid and will be upheld if it is
"rationally related to a legitimate state interest." Id. at 440-
42. The defendants maintain that the program is designed
to teach fiscal responsibility to inmates. Another
conceivable purpose is to reimburse the state for the
expenses of incarceration. Malmed v. Thornburgh , 621 F.2d
565, 569 (3d Cir. 1980) (state action may be upheld on any
valid ground, even one hypothetically posed by the court).

Both interests are legitimate and the plaintiff does not
present an argument to the contrary. Further, the purposes
of teaching fiscal responsibility and partially recouping the
costs of incarceration are surely rationally related to
requiring inmates to pay for their share of maintenance.
The plaintiff would have to make similar expenditures on
the outside, and making him do so under the Cost Recovery
Program teaches him to assume real-world responsibilities.

We also note that although "trusty" inmates are not
charged for room and board, they "pay" their housing costs
by providing labor to the prison. Similarly, work release
inmates pay at least $70.00 per week to the prison, and
therefore do not pay any less than those prisoners in the
Cost Recovery Program. Where there is no discrimination,
there is no equal protection violation. Mastrian , 725 F.2d at
1166.

The plaintiff also complains that inmate Anthony Ashford
was not charged any fees. Undisputed evidence shows that
Ashford had been removed from the Work Release Program,

                               20
and prison authorities mistakenly failed to begin charging
him fees under the Cost Recovery Program. Upon being
alerted to this oversight, Ashford's account was back-
charged for all the relevant fees. As such, the plaintiff
cannot point to any discrimination, and therefore to any
equal protection violation.

III. Conclusion

The judgment of the District Court will be affirmed.

                                21
RENDELL, Circuit Judge, concurring in part and dissenting
in part:

In his pro se complaint, Tillman, a state prisoner, alleges
that the Lebanon County prison took half of the money in
his wallet, as well as half of the money orders sent to him,
to pay the balance of a daily $10 charge incurred during an
earlier prison sentence. The prison took this money
pursuant to a policy adopted by the Lebanon County Prison
Board. Tillman states, "I sign [sic] no agreement or
contracts to have them take my money." His counseled
brief on appeal similarly attacks the prison's basis for
taking his money, stating that "no court, nor any statute,
authorizes the imposition of the arbitrary costs forced on
appellant against his will." Brief for Appellant at 6.
According to the affidavit of the former Chairman of the
Lebanon County Prison Board, the Prison Board adopted
the Cost Recovery Program "as a rehabilitative measure,
designed to teach sentenced inmates financial
responsibility, by requiring them to contribute to the
expenses necessary to house, feed, clothe and protect them
while incarcerated." App. 92.

The majority concludes that the prison's internal
grievance procedure provides prisoners with the post-
deprivation opportunity for a hearing that due process
requires. I agree with the majority's holding, as far as it
goes. However, I do not think we have addressed the more
fundamental substantive due process question raised by
Tillman's allegations, namely, what enables the Lebanon
County Prison Board to impose this consequence upon a
person convicted of a state crime? Can it, on its own,
decide to deprive state prisoners unfortunate enough to be
housed there of $10 per day, to be paid to the county's
coffers, under the guise of rehabilitating them and teaching
them financial responsibility? Although the imposition of
this compensation scheme is obviously not the same as
restitution, it strikes me as a similar type of sentencing
consequence that should emanate from the state in the first
instance.1
_________________________________________________________________

1. In Pennsylvania, "an order of restitution must be based on statutory
authority." In the Interest of M.W., 725 A.2d 729, 731 (Pa. 1999) (citing

                               22
As the majority notes, other states have passed
legislation authorizing prisons to take inmates' funds in
situations such as this. Interestingly, the Pennsylvania
legislature has chosen to authorize county prisons to collect
a reasonable amount from prisoners, but the statute
applies only to those incarcerated "on weekends or other
short periods each week."2 I submit that the record and
briefs do not explore this issue adequately. I suggest,
further, that the majority's reasoning, contained in a
footnote, that a state law establishing boards of inspectors
to oversee prison operations provides the requisite authority
to impose this charge as a consequence of incarceration is
less than persuasive. I also do not believe that the case law
cited by the majority provides a satisfactory paradigm for
this type of mandatory charge.3
_________________________________________________________________

Commonwealth v. Harner, 617 A.2d 702, 704 (Pa. 1992) ("It is generally
agreed that restitution is a creature of statute and, without express
legislative direction, a court is powerless to direct a defendant to make
restitution as part of a sentence.")). In the federal context, we recently
reiterated the "firmly established principle that federal courts may not
order restitution in the absence of statutory authorization." United
States
v. Akande, 200 F.3d 136, 138 (3d Cir. 1999). If the rehabilitative
measure Tillman challenges is not a punitive one, what is its precise
character?

2. Section 2146, "Collection from weekend prisoners," provides as
follows:

       The county prison board, or where applicable the county
       commissioners, may, by resolution which shall establish rates and
       qualifications, authorize the warden, sheriff or other person in
       charge of the jail to collect a reasonable amount from prisoners
       incarcerated only on weekends or other short periods each week.

Pa. Stat. Ann. tit. 61 S 2146 (West 1999). See Commonwealth v.
Cassell, 12 Pa. D. & C. 4th 265 (York County 1991) (concluding that
section 2146 authorized short-term fee to be imposed upon defendant,
who had requested deferment of mandatory minimum 48-hour prison
sentence).

3. The precise question at issue in this appeal was raised in neither
Reynolds v. Wagner, 128 F.3d 166 (3d Cir. 1997), nor Mastrian v.
Schoen, 725 F.2d 1164 (8th Cir. 1984) (affirming grant of summary
judgment in favor of state correction officials on a complaint alleging an

                               23
Tillman has presented a fundamental question, and I
would reverse and remand for further development of this
issue.

A True Copy:
Teste:

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

equal protection violation stemming from a now-discontinued
experimental program to charge room and board based on inmates'
levels of income in a state prison). In Reynolds , we characterized the
fee
at issue as to be paid in consideration for beneficial medical services,
Reynolds, 128 F.3d at 180, and it is clear from the exceptions to the fee
requirement (e.g., initial intake, emergency, psychiatric services,
chronic
illness screening) that choice was involved to avail oneself of medical
services for which a fee was charged, which is not the case here.

                               24
