United States District Court,
E.D. Pennsylvania.
Rodney BURNS, Plaintiff,
v.
PA DEPARTMENT OF CORRECTIONS, et al., Defendants.

Civil Action No. 05-3462.
May 26, 2009.

Jeffrey M. Boerger, Drinker Biddle & Reath LLP, Philadelphia, PA, for Plaintiff.

MEMORANDUM
SCHILLER, District Judge.

*1 Plaintiff Rodney Burns brought this civil rights action, pursuant to 28 U.S.C. § 1983, against Pennsylvania Department of Corrections (?DOC?) officials Donald Williamson, David DiGuglielmo, Thomas Dohman, Mary Canino, Robert S. Bitner, Tony Wolfe, Levi Hosband, and Frank Regan (?Defendants?). On February 6, 2007 this Court granted Defendants summary judgment on all of Plaintiff's claims. Plaintiff appealed, and the Third Circuit reversed and remanded the case on September 19, 2008. Presently before the Court are Defendants' second motion for summary judgment and Plaintiff's second motion for partial summary judgment. For the reasons that follow, Defendants' motion is granted in part and denied in part and Plaintiff's motion is granted in part and denied in part.

I. BACKGROUND
A. Factual BackgroundFN1

FN1. Since the underlying facts of this case have not changed since the Court's February 6, 2007 Memorandum and Order, the Court largely restates the facts as presented in that opinion. It also adds, where appropriate, additional facts presented in the Third Circuit's opinion.


In February of 2005, Plaintiff was incarcerated in Housing Unit B (?B Block?) at SCI Graterford, a Pennsylvania prison. On February 10, 2005, an inmate named Charles Mobley was assaulted by another inmate, who threw scalding hot water on his face. The attack occurred in the B Block ?dayroom? area. Mobley's burns were discovered four days later by Corrections Officer Angelina Rivera, who then notified her superiors. Mobley was taken to the prison medical unit for treatment. A nurse cleaned his burn, applied antibiotic ointment and administered a Tetanus shot.

Mobley subsequently identified his assailant as a resident of cell BA-1022. Ricky Holmes, one of the two inmates in that cell, was placed in administrative custody with restricted cell status for four days while the incident was investigated. The prison's Security Department later received two phone calls through a special hotline established to enable reliable inmates, who were selectively given the hotline number, to share confidential information. Both callers stated that Holmes was not responsible for the incident and that Burns had thrown hot water on Mobley. Defendant Thomas Dohman, Captain of Security at SCI Graterford, deemed this information credible because he recognized the callers' voices and had previously received reliable information from them. On February 18, 2005, the same day Holmes was released from restricted cell status, Dohman interviewed Plaintiff. Dohman concluded that Mobley, whom he described, from prior experience, as ?semi-coherent? at times, had confused Holmes and Plaintiff, who look similar. Dohman accused Plaintiff of committing the assault, but Plaintiff repeatedly denied any involvement in the incident. Nonetheless, following the meeting with Dohman, Plaintiffwas placed in administrative custody and transferred to the Restricted Housing Unit (?RHU?) while the investigation continued.

Dohman issued a misconduct report on March 7, 2005, charging Plaintiff with assault. The report stated that the charges were based on statements from two confidential informants, who saw the assault and had given reliable information in the past, as well as information, which also implicated Plaintiff, given by other inmates to Lt. Abdul Ansari. After placing Plaintiff in administrative custody, Dohman received an anonymous letter, which informed him that he had ?the right man? and told him that Plaintiff had threatened to retaliate against Mobley. Dohman believed that the letter was written by someone other than the two confidential informants who had called the hotline, but because it was anonymous he did not rely upon it in preparing the Misconduct Report.

*2 After the report was issued, Plaintiff filed timely requests for Mobley to appear as a witness at his disciplinary hearing and for disclosure of the videotape of the incident. On March 10, 2005, Burns appeared before Hearing Officer Mary Canino for his disciplinary hearing and pled not guilty. Plaintiff also renewed his requests to view the videotape of the incident and for Canino to view the tape as well. As a result of these requests, Canino continued the hearing.

On March 15, 2005, Canino held an in camera hearing regarding Plaintiff's disciplinary charges, during which she heard testimony from Dohman summarizing the statements of the two confidential informants. Dohman did not identify the confidential informants during this hearing, nor did Canino obtain written statements or receive direct testimony from them. Dohman informed Canino that the incident was not recorded on videotape. Canino met with Mobley, who refused to testify at Plaintiff's disciplinary hearing or in camera. She did not obtain a written statement from Mobley, nor did she ask him why he refused to testify at Plaintiff's disciplinary hearing or at an in camera hearing. Later that day, Canino reconvened Plaintiff's disciplinary hearing and informed him that: (1) Mobley had refused to testify; (2) she found the confidential informants' statements, as described by Dohman, to be credible and reliable; and (3) the incident was not recorded on videotape.

Canino found Plaintiff guilty of the assault by a preponderance of the evidence and imposed the following sanctions: (1) 180 days of disciplinary confinement in the RHU; (2) loss of his prison job; and (3) assessment of his inmate account for any medical or other expenses incurred by Mobley as a result of the assault. Plaintiff appealed his disciplinary conviction to the Program Review Committee, Superintendent David Diguglielmo, and Chief Hearing Examiner Robert Bitner. All three administrative levels upheld the conviction after reviewing the same record, which included Canino's hearing report, Dohman's misconduct report, Plaintiff's inmate statement, and his witness request form.

A separation order was entered between Plaintiff and Mobley on April 4, 2005, as a result of Plaintiff's misconduct charge and to eliminate the possibility that Plaintiff would retaliate against Mobley upon release from disciplinary custody. On September 6, 2005, Plaintiff was transferred to SCI Huntingdon. As a result of his transfer, Plaintiff must now pay long-distance calling rates to talk to his family on the telephone and, to this point, has incurred $132.50 in calling card expenses. In addition, Plaintiff has lost over $2,000 in wages because of losing his prison job in the SCI Graterford Clothing Plant and being placed in the ?general labor? pool. (Pls.' Mem. in Supp. of Second Mot. for Partial Summ. J. [?Pl .'s Second Mem.?] at 24-25.)

B. Procedural History
Plaintiff's Second Amended Complaint included seven claims for relief. The first five claims asserted that Plaintiff's due process rights were breached by: (1) the denial of his right to call witnesses, (2) the Defendants' failure to turn over exculpatory evidence, (3) the denial of his right to present documentary evidence, (4) the Defendants' failure to adequately ensure the credibility and reliability of unnamed confidential informants, and (5) the Defendants' failure, on appeal, to investigate the procedures utilized at his disciplinary hearing. The sixth claim asserted that Plaintiff's disciplinary conviction was arbitrary and constitutionally impermissible, breaching his substantive due process rights. The seventh and final claim contended that retaliatory actions taken against Plaintiff, for exercising his constitutional privilege against self incrimination, also breached his substantive due process rights.

*3 On February 6, 2007, the Court denied Plaintiff's partial motion for summaryjudgment and granted Defendants summaryjudgment on all of Plaintiff's claims. Finding that Plaintiff could not show the deprivation of a protected property interest, the Court concluded that he had failed, as a matter of law, to state a due process violation. Plaintiff appealed this decision. The Third Circuit's opinion focused on ?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.? Burns v. Pa. Dep't of Corr., 544 F.3d 279, 280 (3d Cir.2008). The court declared this ?an issue of first impression across the courts of appeals.? Id. The court ultimately found that ?the Department of Corrections acquired something similar to a money judgment by assessing [Plaintiff's] inmate account.? Id. at 288. This assessment, the court concluded, ?constituted the deprivation of a protected property interest for purposes of procedural due process.? Id. at 291. Accordingly, this Court's previous order, which granted summary judgment to the Defendants on Plaintiff's procedural due process claims-on the grounds that Plaintiff failed to assert a protected property interest-was reversed and the matter remanded.FN2

FN2. The Court's initial grant of summary judgment for the Defendants, as to the Second Amended Complaint's sixth and seventh claims for relief, which asserted breaches of substantive due process rights, remains unaffected by the Third Circuit's decision. As the Third Circuit made clear, ?the sole issue on appeal [was] whether the Department of Corrections impaired a protected property interest for purposes of procedural due process.? 544 F.3d at 285. Thus, Plaintiff is not entitled to any relief in connection with these claims.


No money has been deducted from Plaintiff's inmate account. Moreover, the Department of Corrections has confirmed in writing that it will not be proceeding with the assessment of Plaintiff's account for any expenses related to the incident at issue in this case.

II. STANDARD OF REVIEW
Summary judgment is appropriate ?if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.? Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of identifying those portions of the record that it believes illustrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party makes such a demonstration, the burden then shifts to the nonmovant, who must offer evidence that establishes a genuine issue of material fact that should proceed to trial. Id. at 324; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When the moving party does not bear the burden of persuasion at trial, it may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial. Celotex, 477 U.S. at 323. Thereafter, the nonomoving party demonstrates a genuine issue of material fact if sufficient evidence is provided to allow a reasonable finder of fact to find for the nonmoving party at trial. Anderson, 477 U.S. at 248.

*4 In reviewing the record, ?a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor.? Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir.1994). Furthermore, a court may not make credibility determinations or weigh the evidence in making its determination. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); see also Goodman v. Pa. Tpk. Comm'n, 293 F.3d 655, 665 (3d Cir.2002).

At the same time, to avoid summary judgment, ?a nonmoving party must adduce more than a mere scintilla of evidence in its favor.? Williams v. Borough of W. Chester, Pa., 891 F.2d 458, 460 (3d Cir.1989) (citing Anderson, 477 U.S. at 249). Although credibility determinations remain the function of the jury, a judge considering a summary judgment motion by a defendant in a civil case ?unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict-?whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.? ? Anderson, 477 U.S. at 252 (quoting Improvement Co. v. Munson, 14 Wall. 442, 81 U.S. 442, 448, 20 L.Ed. 867 (1871)). The same standards apply to cross motions for summaryjudgment. Appelmans v. City ofPhila, 826 F.2d 214, 216 (3d Cir.1987); see also Transportes Ferreos de Venezuela II CA v. NKK Corp., 239 F.3d 555, 560 (3d Cir.2001).

III. DISCUSSION
A. Plaintiff's Damages Claims
The Supreme Court's decision in Harlow v. Fitzgerald held that ?government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.? 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Furthermore,

For a constitutional right to be clearly established, its contours ?must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, see Mitchell [v. Forsyth, 472 U.S. 511, 535, n. 12, 105 S.Ct. 2806, 86 L.Ed.2d 411; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.? Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

Hope v. Pelzer, 536 U.S. 730,739 (2002).

Under Saucier v. Katz, courts were required first to determine whether the facts of a case constitute a violation of a constitutional right and second to decide whether the right at issue is ?clearly established.? 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Recently, however, the Supreme Court rejected the sequence outlined in Saucier. Pearson v. Callahan, ---U.S. ----, ----, 129 S.Ct. 808, 817, 172 L.Ed.2d 565 (2009). District and appellate courtjudges are now ?permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.? Id. at 818. Here, because the Court decides that the right asserted was not clearly established, it need not determine whether a constitutional violation occurred.

*5 The Third Circuit's opinion declared that ?no court has either accepted or rejected the argument that Burns advances in this case. It appears to be an issue of first impression across the courts of appeals.? Burns, 544 F.3d at 286. The lack of any ?precedential authority addressing the right to security? compelled the court to rely upon other sources. Id. at 287. Accordingly, the court drew on the work of legal philosophers like A.M. (Tony) Honoré and law and economics theory before concluding, in a 2-1 decision, that the ?assessment of Burns' institutional account constituted the deprivation of a protected property interest for purposes of procedural due process.? Id. at 291.

The Court agrees with Defendants that the right in question in this case cannot, by any means, be described as clearly established. The Third Circuit's opinion made this clear by emphasizing the dearth of authority on this subject. Id. at 287 (?[W]e are aware of no precedential authority addressing the right to security.?); see also id. at 291 (Hardiman, J., 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.?). Plaintiff, however, contends that while the Third Circuit addressed an issue of first impression regarding the nature of the property interest in question, this served only as a factual predicate to the procedural due process rights at issue, which ?have been clearly established for years, even decades.? (Pl.'s Mem. of Law in Opp'n to Commonwealth Defs.' Second Mot. for Summ. J. [?Pl.'s Opp'n?] at 5.) According to Plaintiff, ?the property interest at issue is clearly established, with the Third Circuit's recent decision addressing little more than a ?factual wrinkle? in that area of law.? ( Id.)

Plaintiff relies on Hope v. Pelzer, in which a prisoner argued that prison officials violated his Eight Amendment right to be free from cruel and unusual punishment when they handcuffed him to a hitching post. 536 U.S. at 733. According to Plaintiff, ?The court found that this violated a ?clearly established? right despite having no precedent addressing use of a hitching post as cruel and unusual punishment.? (Pl.'s Opp'n at 6 n. 5.) Although no binding precedent directly dealt with the use of a hitching post, the Supreme Court concluded that the right was still clearly established given Eleventh Circuit precedent, a state department of corrections regulation, and a report from the Department of Justice on the constitutionality of the use of a hitching post. Hope, 536 U.S. at 741-42. Specifically, the Court noted binding precedent in which a court squarely held that ?handcuffing inmates to the fence and to cells for long periods of time, ... and forcing inmates to stand, sit or lie on crates, stumps, or otherwise maintain awkward positions for prolonged periods? violated the Eighth Amendment. Id. at 742 (citing Gates v. Collier, 501 F.2d 1291, 1306 (5th Cir.1974)). The Supreme Court found that ?for the purpose of providing fair notice to reasonable officers administering punishment for past misconduct ... [there is no] reason to draw a constitutional distinction between a practice of handcuffing an inmate to a fence for prolonged periods and handcuffing him to a hitching post for seven hours.? 536 U.S. at 742. The Court concluded that the distinction between a fence and a hitching post constitutes the sort of ?factual wrinkle? Plaintiff's argument against qualified immunity relies upon. The property interest recognized here does not present a wrinkle of similar subtlety.

*6 The Court is unwilling to conclude that the writings of Professor Honor é offered the prison officials in this case fair warning equivalent to the pronouncements found in Hope. Nor does the Court agree with Plaintiff that prior case law holding that a prisoner has a property interest in an inmate account, or that an actual impairment of an account deprives an inmate of a property interest, sufficiently supports the conclusion that a mere assessment of an account impinges upon a clearly established property interest. (Pl.'s Opp'n at 7.) Such a conclusion would render unnecessary the Third Circuit's lengthy and scholarly analysis of this issue. Therefore, qualified immunity bars Plaintiff's ninth, tenth, and eleventh requests for relief, in the form of damages.FN3 However, because qualified immunity does not preclude declaratory or injunctive relief, the Court must consider whether those remedies are warranted. See Harris v. Pernsley, 755 F.2d 338, 343 (3d Cir.1985) (?The qualified immunity defense only applies, of course, to claims for money damages.?)

FN3. Qualified immunity also bars nominal damages. See Hicks v. Feeney, 850 F.2d 152, 155 n. 4 (3d Cir.1988) (?Since [Plaintiff] was not entitled to any judgment while qualified immunity remained open he could not obtain damages, nominal or otherwise, on this record.?); see also Hopkins v. Saunders, 199 F.3d 968, 978 (8th Cir.1999) (?Several other circuits have also implicitly recognized the legal nature of nominal damages by finding them to be barred by qualified immunity.?).


B. Plaintiff's Declaratory and Injunctive Relief Claims
1. Mootness and standing
Defendants contend that Plaintiff is not entitled to declaratoryjudgment, on the grounds that such relief ?is inappropriate to adjudicate past conduct.? (Mem. of Law in Supp. of Defs.' Second Mot. for Summ. J. [?Defs.' Second Mem.?] at 8 (citing Corliss v. Obriend, 200 F. App'x 80, 84 (3d Cir.2006).) They also assert, without any further analysis or discussion, that Plaintiff lacks standing for these claims, as the relief requested ?would not remedy the alleged constitutional violation.? ( Id. (citing Brown v. Fauver, 819 F.2d 395, 400 (3d Cir.1987).) Contrary to Defendants' assertions, Plaintiff's requested declaratory relief would not solely adjudicate past conduct. The Third Circuit's opinion analyzed and rejected the contention that Burns' due process claim was rendered moot by the Department's declaration that no steps would be taken to deduct any money from Burns' inmate account. 544 F.3d at 283. The court found that a procedural due process violation, if one had occurred, would have been ?complete at the time that his account was originally assessed .? Id. at 284. As such, Burns' claims for relief related to this alleged violation could not be rendered moot by a letter sent more than three years after the original assessment. The Third Circuit proceeded to note that, although the completed due process violation itself was sufficient to defeat a claim of mootness, ?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. (quoting Los Angeles County v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). As the Third Circuit declared in a separate case, ?[w]hen there is a voluntary cessation of a policy, a claim will not be rendered moot if there remains the possibility that plaintiffs will be disadvantaged ?in the same fundamental way.? ? Sutton v. Rasheed, 323 F.3d 236, 248 (3d. Cir.2003) (citing Ne. Fla. Chapter of Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993)). Given that the Third Circuit's decision did not upset the hearing officer's determination of Plaintiff's guilt on the underlying misconduct charge, it remains possible that the Department, which voluntarily rescinded the assessment, might choose to reinstate this sanction. In light of this reality, Plaintiff's requests for declaratory relief are not moot, nor does Plaintiff lack standing to bring these claims, which, if successful, could provide some relief.

2. The impact of the Third Circuit's opinion
*7 Under Plaintiff's interpretation of the Third Circuit's opinion, if the disciplinaryproceedings failed to provide Plaintiff with the process to which his property right entitles him, this Court is empowered to grant relief relating not only to the protected property interest, but also to any results of the disciplinary proceedings that did not impinge directly upon the property interest. ( See Pl.'s Opp'n at 4 (?The assessment of his inmate account has never been advanced (by Burns) as a separate cause of action or claim for damages or any other relief, but merely as a trigger for the protections of procedural due process.?)). Defendants-who contend that ?Plaintiff only appealed, and the Third Circuit opinion therefore only addressed, Plaintiff's procedural due process claim based upon his assertion that he was deprived of a protected property interest in his inmate account by the DOC's assessment on it?-more accurately characterize the effect of the Third Circuit's decision, and their interpretation better accords with the relevant, though scant, case law related to this issue. (Defs.' Second Mem. at 3-4.) Since the scope of the Third Circuit's decision necessarily shapes the legal issues this Court must address in determining what process and remedies, if any, Plaintiff is entitled to, the Court will address first the import of the appellate court's decision and the nature of the remedies available should a violation of procedural due process be found.

Carey v. Piphus is the leading case on compensatory damages in the context of a procedural due process violation. 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). The Supreme Court began its analysis of the scope of available damages by stating that ?[r]ights, constitutional and otherwise, do not exist in a vacuum. Their purpose is to protect persons from injuries to particular interests, and their contours are shaped by the interests they protect.? Id. at 254. The Court further declared that ?the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question ....? Id. at 258-59. In Carey, two public school students challenged their suspensions, which were handed down absent procedural due process. The Court concluded that if the petitioners could prove on remand that the students would have been suspended even were a proper hearing to have been held, then the students would not be entitled to damages to compensate for any injuries caused by the suspensions. Id. at 260. In other words, if, assuming the students were afforded procedural due process, they nonetheless still would have been suspended, then the denial of due process ?could not properly be viewed as the cause of the suspension.? Id. In such a circumstance, ?an award of damages for injuries caused by the suspensions would constitute a windfall, rather than compensation, to respondents.? Id. (citing United States v. Warden, 545 F.2d 32 (1976)).

*8 The Court finds the reasoning in Carey instructive. Since any remedy to which Plaintiff is entitled must be tailored to his protected property right (of security in his prison account), he cannot recover for harms unrelated to that interest (such as the loss of his job and his separation and transfer). Plaintiff's protected property interest, and only that interest, ?trigger[ed] the protections of the Due Process Clause.? 544 F.3d at 291. Since this is the interest protected by his procedural due process rights, his remedy for injuries caused by the deprivation of his due process rights must be tailored to that interest. See Carey, 435 U.S. at 258-59.FN4 Thus, the Court must ask this question: if the hearing had not implicated Plaintiff's property interest in the security of his account (and therefore Plaintiff had no entitlement to procedural due process protections) would the disciplinary determination and its subsequent effects be upheld? As is clear from this Court's decision on the first set of motions for summary judgment, the Court believes the answer is yes.

FN4. This provides an additional basis for denying Plaintiff's requests for lost wages and damages related to his transfer.


This reading accords with the Third Circuit's reasoning that ?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.? 544 F.3d at 284. The Third Circuit did not attribute Burns' injury, if any, solely to the failure to afford him due process, but instead tethered this injury to the impairment of the specific property interest that invoked due process protections. This interpretation is reinforced by the next paragraph of the Third Circuit's opinion, which discussed the possible damages Plaintiff might be entitled to if a violation of due process were proven. The Third Circuit discussed possible damages ranging from a nominal award to ?compensation for the time that his inmate account operated under a cloud.? Id. Damages related to lost wages or Plaintiff's transfer are not referenced.

Our application of Carey to the instant case also accords with the interpretations offered by other courts. See Rosenstein v. City ofDallas, Tex., 876 F.2d 392, 397 (5th Cir.1989) (finding that, when only liberty interest was implicated, Plaintiff was not entitled to damages related to loss of his job, in which he did not have property interest); Doe v. District of Columbia, 697 F.2d 1115, 1123 (D.C.Cir.1983) (holding that Carey's ?general assertion that constitutional rights protect particular interests and are to be valued solely by reference to those interests is transferrable to the Bivens context?). As the Third Circuit declared, the assessment of Burns' account triggered procedural due process protections. Those protections, however, were aimed only at the specific property interest that triggered them. Accordingly, only those portions of the relief directly related to the specific property interest at issue in this case are available to Plaintiff upon remand.FN5 Plaintiff's requests for injunctive relief (requests five through eight) are unavailable. The sixth through eighth requests, which deal with Plaintiff's separation order, transfer and change in security classification, bear no relation to his protected property interest. Plaintiff's disciplinary conviction, which he asks to have expunged in the fifth request, remains valid to the extent that it does not affect his property interest.

FN5. This narrow reading of the relief that remains available to Plaintiff also conforms with the Prison Litigation Reform Act, which states:
Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.


18 U.S.C.A. § 3626 (2009).

*9 Only two requests for relief remain. Plaintiff's first request seeks a declaration that ?the DOC policy governing disciplinary hearings violates minimum due process rights.? Plaintiff contends that the DOC policy, as written, violates due process ?because it grants a hearing examiner unbounded discretion to exclude witnesses called to testify by an inmate facing disciplinary charges.? (Pl.'s Second Mem. at 18.) According to Plaintiff, because the Supreme Court has limited the constitutionally permissible grounds for denying an inmate's requested witness, the DOC's policy, which does not expressly outline acceptable reasons for denying a request, violates due process and grants limitless discretion. This argument seemingly assumes that the DOC policy purports to supplant the Supreme Court's instructions. However, this Court finds that the policy can easily be read to comport with the relevant constitutional doctrine, merely speaking specifically to the need for a written record of the reason for denying a witness request. Moreover, DC-ADM 801 also applies to prison disciplinary proceedings in which no protected property or liberty interest is implicated and an inmate therefore is not entitled to due process. As such, it would be inappropriate for the Court to declare that the policy, as written, violates due process. Plaintiff's second request, for a declaration that the specific proceedings that Plaintiff was subjected to violated his procedural due process rights, is an appropriate remedy to be considered by the Court. However, any such declaration, if warranted, must be limited to the extent to which those proceedings affected Plaintiff's protected property interest.

3. The standard governing requests for declaratory judgment
Declaratory judgments are governed by 28 U.S.C. § 2201, which states that ?[i]n a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.? 28 U.S.C. § 2201 (2009). District courts possess discretion to grant declaratory relief. Wilton v. Seven Falls Co., 515 U.S. 277, 286, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995) (?Since its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants.?). Whether a declaratory judgment should be granted partly depends upon the remedy's usefulness, an assessment particularly within the district court's ken. Id. at 289.

4. Plaintif's disciplinary proceedings
In determining what process Plaintiff was due before his prison account could be assessed, the Court takes as its starting point the Third Circuit's brief analysis of this issue:

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, 115 S.Ct. 2293, 132 L.Ed.2d 418. As the Supreme Court instructed in Wolffv. McDonnell, 418 U.S. 539, 94 S.Ct. 2963,41 L.Ed.2d 935 (1974), ?(t)he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.? Id. at 560, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (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.

*10 Burns, 544 F.3d at 290 n. 8; see also Hale v. Beard, 168 F. App'x 532, 534 (3d Cir.2006) (?Traditionally, in assessing a procedural due process claim, we will balance the private interest, the governmental interest, and the value of the available procedure in safeguarding against an erroneous deprivation of property.?) (citing Tillman v. Lebanon County Corr. Facility, 221 F.3d 410,421 (3d Cir.2000)); Reynolds v. Wagner, 128 F.3d 166, 179 (3d Cir.1997) (?The procedural protections required by the Due Process Clause are determined with reference to the particular rights and interests at stake in a case.?).

Defendants contend that, given the seemingly attenuated nature of the property right identified by the Third Circuit, the ?Plaintiff's private interests here are minimal.? (Defs.' Second Mem. at 12.) In contrast, Defendants assert that the government's interest is strong, because holding inmates responsible for medical costs can deter assaults and promote prison safety. The policy also assists in deferring the costs of inmate medical care. ( Id. at 12-13.) Plaintiff fails to engage in this analysis, and only references it in a footnote, stating that ?[f]or reasons that are not clear, the defendants also engage in a balancing exercise ....? (Pl.'s Opp'n. at 10 n. 9.) Instead, Plaintiff contends that ?[t]he unexecuted assessment of his inmate account serves simply as a predicate, the occurrence of which triggered the protection of procedural due process.? ( Id. at 9.) The assessment of Plaintiff's account does more than merely trigger an amorphous conception of due process rights, it instead, as ?the private interest affected by governmental action,? molds consideration of the specific procedures due process demands in Plaintiff's particular circumstance. See Wolff, 418 U.S. at 560 ( cited in Burns v. PA Dept. of Correction, 544 F.3d at 290). Given this analytical framework, Plaintiff's references to ?the minimal due process rights afforded to prison inmates? are meaningless absent careful consideration of the specific interests that entitle him to these due process rights. ( See Pl.'s Second Mem. at 12.)

Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), frames the analysis of the due process protections to which Burns was entitled. In Wolff, an inmate brought a class action challenging the disciplinary process in a Nebraska prison. He alleged that the prison's procedures, which could result in the taking of good time credits, and thus the possible impairment of a liberty interest, ?violated the Due Process clause of the Fourteenth Amendment.? Id. at 553. The Court stated that in order to satisfy the ?minimum requirements of procedural due process? a prisoner, who faced the loss of good time credits, must receive ?advance written notice of the claimed violation and a written statement of the factfinders as to the evidence relied upon and the reasons for the disciplinary action taken.? Id. at 563. The Court also declared itself to be ?of the opinion that the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.? Id. at 566; see also Macia v. Williamson, 219 F. App'x 229,233 (3d Cir.2007) (identifying these as procedural protections required by Wolff in context of prison disciplinary proceeding in which prisoner's good-time credit is at stake).FN6

FN6. Plaintiff relies on Young v. Kann, 926 F.2d 1396 (3d Cir.1991). As in Wolff, the Plaintiff in Young brought due process claims predicated on the loss of good time credit. The court expressly declared that Wolff held ?that a prisoner has a constitutionally protected liberty interest in good time credit, and it enumerate[d] what due process requires when a prison disciplinary hearing may result in loss of such credit.? Id. at 1399. This statement provides further support for the conclusion that the parameters of due process are defined by the interest at stake.


*11 The newly recognized property interest at issue here-the security of a prisoner's account-is a less important private interest than the good time credits at issue in Wolff. As the Supreme Court has declared, ?the loss of [goodtime] credits threatens [aprisoner's] prospective freedom from confinement by extending the length of imprisonment. Thus the inmate has a strong interest in assuring that the loss of good time credits is not imposed arbitrarily.? Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985) (citation omitted). The reduction in the economic value of Burns' institutional account FN7 and the threat of appropriation, although it lasted three years, was so minor that the Court must conclude that this is a less weighty interest than a possible extension of the term of imprisonment. The Court bears this in mind as it analyzes the procedural protections outlined in Wolff and related cases.

FN7. Had Burns' account actually been assessed, the maximum amount for which he could have been liable was $10.00, the total cost of the care provided to Mobley. (Joint Ex. 45 [Decl. of Myron Stanishefski] at ¶ 5.) However, considering the effect of this potential seizure on the present day economic value of Burns' property necessitates that this amount be discounted based on the probability of seizure. See Burns, 544 F.3d at 289-90. Although the Court will not attempt to calculate this probability, it can conclude that-to the extent the impairment of Plaintiff's property interest in the security of his account can be quantified-its value is no more than $10.00 and potentially less.


a. Plaintiff was not denied the right to call witnesses.
The parties do not dispute that Plaintiff received both written notice of the claimed violation and a written statement of the evidence relied upon and the reasons for the disciplinary action. Plaintiff contends, however, that he was denied the right to call witnesses. Plaintiff made a timely request for Mobley to testify and was informed that Mobley refused to testify. (Pl.'s Second Mem. at 17.) Plaintiff claims, however, that the hearing officer violated Plaintiff's due process right to call witnesses by failing to direct or compel Mobley to testify or to obtain his testimony ?through alternative means.? ( Id. 18.) Assuming arguendo that the property interest at stake here gives rise to a right to call witnesses, Plaintiff points to no authority within this Circuit that supports the proposition that a hearing officer's failure to obtain the testimony of an unwilling witness constitutes a due process violation. When told by Mobley that he did not want to testify at the hearing, Canino, the hearing officer, asked if he would testify in camera; Mobley again refused. (Joint Ex. 3 [Canino Dep.] at 60:9-15.) Canino believed that Mobley did not want to testify out of fear of retaliation, a conclusion the Court finds reasonable given that Mobley was the individual assaulted. ( Id. at 85:12-21.) In Wolff the Supreme Court declared that ?[p]rison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal ....? Wolff, 418 U.S. at 566. This discretion, in the Court's opinion, extends from the refusal to call a witness to a hearing officer's acceptance of an inmate's refusal to testify.

Moreover, the cases Plaintiff cites from other circuits are distinguishable. Hoskins v. McBride, 13 F. App'x 365 (7th Cir.2001), dealt with the propriety of a hearing officer's exclusion of existing witness statements, a distinct scenario from the one here. In Forbes v. Trigg, 976 F.2d 308 (7th Cir.1992), the court rejected a policy ?allowing correctional officials complete discretion to appear at disciplinary hearings.? Id. at 316. Forbes focused on regulations permitting only voluntary witnesses or categorically barring certain classes of witnesses, at the expense of ?a case-by-case analysis of the calling of involuntary witnesses.? Id. at 317; see also Brown v. Braxton, 373 F.3d 501, 507 (4th Cir.2004) (analyzing distinctions in witness request regulations). In this case, the hearing officer did not simply rely upon a regulation; she instead reasonably exercised her discretion in accepting the refusal to testify of a witness who was the victim in the underlying action.

b. Plaintiff was not unconstitutionally denied access to exculpatory evidence, nor was he denied the right to present documentary evidence.
*12 Plaintiff's second claim for relief asserts that Dohman and Canino failed to disclose exculpatory evidence by failing to permit Plaintiff to view requested videotapes and failing to disclose evidence regarding Mobley's identification of another inmate as the assailant. Plaintiff's third claim for relief alleges that he was denied the right to present documentary evidence, including the videotape and other evidence, such as prison logs, incident reports, and evidence that Mobley identified another inmate. Defendants move for summary judgment on these claims, but Plaintiff does not, on the grounds that these claims involve disputed facts and as such are not suitable for resolution on summary judgment.

Plaintiff, relying on Young, contends that the due process requirements outlined in Wolff include ?a Brady-type right to the disclosure of exculpatory evidence in advance of a disciplinary hearing.? (Pl.'s Opp'n at 16 (citing Young, 926 F.2d at 1403)). The situations in Young, and in the case upon which it relies, Chavis v. Rowe, 643 F.2d 1281 (7th Cir.1981), are quite distinct from this case. In Chavis the Seventh Circuit held that a prisoner was denied the due process protections mandatedby Wolff whenthe disciplinary committee deniedaccess to exculpatory witness statements in an investigatory report. Id. at 1286-87. Importantly, however, the report was considered by the disciplinary committee in the process of reaching its conclusions. As such, the court noted that the prisoner, if given this material, may have been able to incorporate it into his arguments before the Committee, thereby affecting their consideration of the material. Id. at 1286. Similarly, in Young an inmate sought access to a letter, in which he allegedly threatened his cellmate, that served as part of the basis for his disciplinary charge. 926 F.2d at 1397.FN8 Unlike these cases, there is no indication, nor any claim by Plaintiff, that the materials sought here were relied upon by the hearing officer in making her determination. Given this important factual distinction, the Court is unwilling to extend the protections of Wolff to mandate access to the video, which was not relied upon by the hearing officer. Nor will the Court extend Wolff to hold that prison officials were required to disclose to Plaintiff evidence regarding Mobley's prior identification of another inmate. In making this decision, the Court is mindful of the Third Circuit's recognition that ?while prisoners retain certain basic constitutional rights, including the protections of the due process clause, prison disciplinary hearings are not part of criminal prosecution, and inmates' rights at such hearings may be curtailed by the demands and realities of the prison environment.? Young, 926 F.2d at 1399 (citing Wolff, 418 U.S. at 555-56).

FN8. In the third case relied upon by Plaintiff, Piggie v. Cotton, 344 F.3d 674 (7th Cir.2003) (per curiam), the prisoner also sought access to a video considered by the hearing officers in making their determination.


Wolff did hold that a prisoner facing a disciplinary hearing, in the context of a possible taking of good time credits, possesses the right to ?present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.? 418 U.S. at 566; see also Macia, 219 F. App'x at 233. However, the Court noted that in providing an inmate access to ?relevant documentary evidence ... we must balance the inmate's interest ... against the needs of the prison, and some amount of flexibility and accommodation is required.? 418 U.S. at 566. Prison officials must maintain ?necessary discretion ... to limit access to other inmates to collect statements or to compile other documentary evidence.? Id. The Court identified ?irrelevance? as a possible reason for refusing to call a witness. Id. Although it was directed specifically to the calling of witnesses, this statement fell within a broader discussion of a prison official's discretion to permit witnesses and documentary evidence. As such, irrelevance also provides an adequate reason for refusing access to documentary evidence. Furthermore, the inmate's interest in Wolff, avoiding a loss of good time credits, was, as noted above, stronger than the security interest here.

*13 Plaintiff relies on Piggie v. McBride, 277 F.3d 922 (7th Cir.2002), in which the Seventh Circuit addressed whether a prison disciplinary board violated the procedural due process rights of an inmate facing a reduction in good time credits when the board ?refus[ed] to view, or permit [the inmate] access to, the surveillance tape that he says would have exculpated him.? Id. at 924. Piggie recognized that ? Wolff does not ... guarantee prisoners the unfettered right to call any witness or present any evidence they wish regardless of its relevance or necessity.? Id. The court held that, while Wolff did not guarantee access to the videotape, the board could not arbitrarily refuse to consider exculpatory evidence. Id. A disciplinary board can deny a request, although it bears the ultimate burden of showing its denial was not arbitrary or capricious. Id. at 925 (citing Ponte v. Real, 471 U.S. 491, 498-99, 105 S.Ct. 2192, 85 L.Ed.2d 553 (1985)).

In this case, Plaintiff asked to view, or have the hearing officer view, a copy of the surveillance video. Plaintiff claims to have initially been told by Dohman that the alleged assault was recorded on video. (Joint Ex. 1 [Burns Dep.] at 16:2-6.) Canino, in response to Plaintiff's request, asked Dohman about the existence of the video and was told, during an in camera hearing, that the incident had not been recorded. (Canino Dep. at 51:6-54:4.) FN9 Canino denied Plaintiff's request, noting in her report that no recording existed. (Joint Ex. 24 [Disciplinary Hr'g Report].) Given the deference and flexibility owed to prison hearing officials, and the minimal property interest at issue here, the Court is reluctant to mandate that a hearing officer must independently review all potentially relevant video evidence when an inmate claims he was told an incident was recorded. Moreover, since the Court finds, infra, that other components of the disciplinary hearing did violate procedural due process, a definitive declaration that procedural due process requires that the hearing officer independently review the video would not alter the relief the Court affords Plaintiff. See Sandin, 515 U.S. 482 (lamenting how prior cases ?led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone.?).

FN9. Canino is unable to remember whether she was told that no tape existed or that the tape did not record the incident, or whether she viewed the taped herself and saw that the incident was not caught by the camera. (Canino Dep. at 51:6-54:4.) According to Dohman's testimony, videotapes are reused by the prison every other month, so the relevant recording would no longer exist. (Joint Ex. 2 [Dohman Dep.] at 48:4-17; 50:16-51:11).


c. The record is insufficient to establish that the hearing officer independently assessed the reliability and credibility of the confidential informants.
Plaintiff also contends that his due process rights were violated by the hearing officer's reliance on the statements of two unnamed confidential informants, which were conveyed to her in an oral summary by Dohman. The hearing officer did not interview the confidential informants, receive or request written testimony from them, or inquire regarding their identities. In her deposition she did, however, claim that Dohman described, in general terms, information the informants had given in the past that indicated they were reliable and that Dohman told her where the informants were positioned when they observed the assault. (Canino Dep. at 39-42; Dohman Dep. at 69-73.) Canino acknowledged that absent Dohman's recounting of the confidential informants' testimony she would not have found Plaintiff guilty and that there was no additional information she relied upon in making her determination. (Canino Dep. at 74-75.) Defendants dispute Plaintiff's statement of fact that ?In finding Burns guilty, Canino relied solely on Dohman's hearsay testimony summarizing the statements of two unnamed confidential informants.? (Mem. of Law in Supp. of Defs.' Resp. to Pl.'s Second Mot. for Partial Summ. J. at 4.) Defendants contend that Canino's deposition reveals additional bases for her finding of guilt. In response to a question regarding what evidence, in addition to Dohman's summary of the confidential informants' statements, she relied upon in making her determination, Canino responded: ?The misconduct report, the report from the CSIs, and the medical reports. And the photos, I looked at those.? (Canino Dep. at 66:14-16.) When asked whether her determination of the credibility of the confidential informants was ?based solely on what Captain Dohman told you,? she responded that she also considered ?how inmate Burns conducted himself during his interview with me.? (Canino Dep. 81:12-16.)

*14 It is unclear to the Court how the Plaintiff's behavior during his interview with the hearing officer could aid in the determination of the credibility of two unknown confidential informants. Nor is it clear how the medical reports and photos would indicate who caused Mobley's injuries. Hence the Court must conclude that the only evidence Canino relied upon was Dohman's oral summary of the confidential informants' accounts of the incident and the misconduct report filed by Dohman, which in turn relied on these informants' accounts and the claim that ?Lt. Ansari also was informed that you committed the assault by other inmates.? (Joint Ex. 19 [Misconduct Report].)

Plaintiff analogizes his case to the facts in Helms v. Hewitt, in which the Third Circuit held that an inmate ?suffered a denial of due process by being convicted on a misconduct charge when the only evidence offered against him was a hearsay recital, by the charging officer, of an uncorroborated report of an unidentified informant.? 655 F.2d 487, 502 (3d Cir.1981), rev'd on other grounds, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), aff'd in relevant part on remand, 712 F.2d 48, 49 (3d Cir.1983). In Helms, the investigating officer had received a notarized affidavit from the informant. The Third Circuit concluded that ?Under the tensions and strains of prison living fraught with intense personal antagonisms, determination of guilt solely on an investigating officer's secondary report of what an unidentified informant advised him, albeit by affidavit, invites disciplinary sanctions on the basis of trumped up charges.? Helms, 655 F.2d at 502. Such a determination, absent any ?primary evidence of guilt in the form of witness statements, oral or written, or any form of corroborative evidence, amounts to a determination on the blind acceptance of the prison officer's statement. Such a practice is unacceptable ....? Id. Although the Helms court acknowledged the useful role hearsay may play in the context of prison disciplinary proceedings, it concluded that allowing a prison tribunal to rely upon ?mere conclusory representations? would severely hamper the tribunal's ?task as a factfinder ... to evaluate credibility and assess reliability of the evidence presented ....? Id. In order to provide minimum due process, a disciplinary determination, when based upon the statement of an unidentified informant, must follow this procedure:

(1) [T]he record must contain some underlying factual information from which the [tribunal] can reasonably conclude that the informant was credible or his information reliable; (2) the record must contain the informant's statement [written or as reported] in language that is factual rather than conclusionary and must establish by its specificity that the informant spoke with personal knowledge of the matters contained in such statement.

Id. (quoting Gomes v. Travisono, 510 F.2d 537, 540 (1st Cir.1974) (alterations in original)). In Helms the court found that the investigating officer's ?testimony before the [hearing] committee, as characterized in the affidavits before us, contained absolutely no indicia of reliability imputable to the alleged undisclosed informant.? Id. at 502. While the officer claimed the informant had provided reliable and corroborating evidence in the past, none of this information, which the hearing committee may have used to judge the informant's credibility, was made known to the committee, resulting in a denial of due process. Id.

*15 The record in this case, regarding what information Canino relied upon in reaching an independent assessment of the confidential informant's credibility, is ambiguous. Canino's Disciplinary Hearing Report states that she held an in camera hearing with Dohman:

to determine the reliability of the (2) CSI's used in his Report, Capt. Dohman gave a preponderance of evidence to my satisfaction that the informants were in a position to observe the incident and have corroborated each others statements and have been given [sic] him information proven reliable in the past. The Capt. advised me where the informants were and how they corroborated each other. What information was proven reliable in the past and how. The reliability hearing was conducted in camera because the reliability evidence could by itself reveal the identity of the (2) CSI's.

(Disciplinary Hr'g Report at 1.) In his deposition, Dohman elaborated on the information he conveyed to Canino regarding the confidential informants. His statements contradict Canino's report, as he expressly states that he did not tell Canino the specific position from which either confidential informant observed the incident, but instead ?told her that they were in a position to see the assault.? (Dohman Dep. at 72:6-13, 73:7-11.) He also explained that the only information he gave Canino regarding the credibility of the informants, was that ?both had given me information [in the past] concerning drugs and staff.? ( Id. at 76:14-21.) His testimony indicates he did not provide information regarding specific facts or prior incidents that would support an independent finding that the informants were credible and reliable, instead he offered mere conclusory statements. ( Id. 72:20-73:6.) Nonetheless, Canino's deposition testimony indicates, albeit with some ambiguity and hesitation, that she asked for and received more detailed information from Dohman. With regards to information pertaining to the inmate's location she testified:

Q. Now, did Captain Dohman tell you specifically where [the informants] were-

A. Yes.

MR. BRADFORD: Let him finish the question.

A. Sorry. Go ahead.

Q. So he told you where the inmates were positioned?

A. It says right here [referencing Disciplinary Hearing Report]. Wait a minute. Let me see. Let me read this here.

?The informants were in a position to observe.?

I asked Captain Dohman could you tell me where CSI 1 was, and then he will tell me. ?Can you tell me where CSI 2 was?? I must have asked him that question.

Q. So you do get the specific location. It is not just he says they were in a position-

A. I must find out where they were.

Q. And he gave you specific information as far as what they observed or had personal knowledge about?

A. If I wrote the man was in Cell 14-over by the soda machine, that could identify the CSI.

Q. I understand.

A. I can't say he had red hair and he-I can't do that.

*16 Q. But Captain Dohman would have given you that sort of information?

A. Yes.

Q. You just would not have written it down in this report?

A. Captain Dohman cannot-I don't write down anything about the CSIs other than he tells me what happened.

(Canino Dep. at 39:9-40:21.)

In reference to their reliability and information provided in the past, Canino testified:

Q. You also indicate [in the Report] that information from these two CSIs has proven reliable in the past?

A. Yes.

Q. How did you come to that conclusion?

A. I asked Captain Dohman what information have they given in the past. And Captain Dohman will say there was a drug-related incident, not in this case, another case or whatever, whatever it was.

Q. As an example then?

A. I don't say what is the inmate's name and who did he give information on. There was a drug bust, they found whatever. I don't know.

Q. But you are giving that as a hypothetical example now. Do you remember what he told you?

A. I don't recall this incident at all. I don't recall it.

( Id. at 41:24-42:19.) Given the deposition testimony of Dohman and Canino, read in conjunction with the Disciplinary Report, the Court finds there is insufficient information to determine whether the hearing record, including what was produced in camera, ?contain[ed] some underlying factual information from which the [tribunal] can reasonably conclude that the informant was credible or his information reliable.? Helms, 655 F.2d at 502. In resolving this issue, the Court draws instruction from Hensley v. Wilson, 850 F.2d 269 (6th Cir.1988), which the Third Circuit cited approvingly in Young v. Kann, 926 F.2d at 1402. In Hensley the Sixth Circuit held that ?a prison disciplinary committee, relying substantially upon information supplied by confidential informants when ordering the forfeiture of an accused prisoner's good time, must make an independent assessment of the informant's reliability and a contemporaneous record of that assessment.? 850 F.2d at 271. This record need not ?be a public record accessible to the charged inmates when prison security interests are involved.? Id. The Court finds particularly persuasive the Sixth Circuit's analysis of the value of preserving a record of the independent assessment of reliability:

To accommodate the prison's informant system, the inmates' interest in full disclosure of the evidence against them and the identity of their accusers must be sacrificed. However, this does not mean, as defendants initially contended below, that this information need never be recorded and that the committee has no obligation to explain the basis for disciplinary action any more fully than it has in its scanty public record. Inmates still have a substantial interest in obtaining judicial review of disciplinary actions, and there is no reason why information that must be kept from the inmates may not be preserved for the courts.

*17 Hensley, 850 F.2d at 279. The Sixth Circuit even proceeded to declare that due process required a contemporaneous record of the evidence relied upon in determining reliability. Id. at 283.

The record in this case confirms that Canino, who has little recollection of this specifics of this hearing, did not make ?a contemporaneous record of the assessment [of informant credibility].? This failure renders it impossible for this Court to undertake a review comparable to that performed by the Third Circuit in Henderson v. Carlson, 812 F.2d 874 (3d Cir.1987). In Henderson the court held ?that a prison disciplinary committee need not reveal at a disciplinary hearing evidence bearing on the reliability of confidential informants if prison officials believe that such evidence is capable of revealing the identity of the informants and if the evidence is made available to the court for in camera review.? Id. at 880. The Third Circuit proceeded to perform an in camera review of the confidential investigative report. Since no such review is possible here, the Court makes the narrow declaration that, as to the assessment of Plaintiff's prison account only, the disciplinary record lacks sufficient evidence for the Court to conclude that Canino independently assessed the credibility of the confidential informants and that Plaintiff received the procedural due process to which that protected property right entitled him. Canino's failure to independently assess the reliability and credibility of the confidential informants whose testimony she relied upon in assessing Plaintiff's inmate account violated the procedural due process rights Plaintiffwas entitled to given his protected property interest in the security of his inmate account. The process provided to date is insufficient should the prison seek to reinstate the sanction of assessing Plaintiff's inmate account. Whatever cloud of unknowing lingers over Plaintiff's account is now lifted.

C. Plaintiff's Due Process Rights on Appeal
Plaintiff contends that Bitner, DiGuglielmo, Wolfe, Hosband, and Regan violated his due process rights by failing ?to investigate and challenge on administrative appeal the facially defective procedures utilized by the hearing examiner.? (Pl.'s Second Mem. at 19.) However, given that the Third Circuit's novel ruling recognized a new property interest, in the absence of which the Plaintiff had no claim to procedural due process protections, the Court does not agree that a ?procedural violation [was] apparent on the face of documents submitted to reviewing officials on appeal.? ( Id. (citing King v. Cuyler, 541 F.Supp. 1230, 1234 (E.D.Pa.1982).) Moreover, to find that such a violation was apparent would be inconsistent with the Court's finding of qualified immunity. Plaintiff's due process rights were not violated by the reviewing officials.

IV. CONCLUSION
The Third Circuit has determined that Plaintiff has a right to security in his inmate account. This right entitles him to limited due process protections. Qualified immunity further restricts the relief available to him. The Court concludes that the only relief to which Plaintiff is entitled is the narrow declaratory relief outlined above. An appropriate Order will be docketed with this Memorandum.

ORDER
*18 AND NOW, this 26th day of May, 2009, upon consideration of Defendants' Second Motion for Summary Judgment, Plaintiff's Second Motion for Partial Summary Judgment, the responses thereto, and for the reasons discussed in the Court's Memorandum of May 26, 2009, it is hereby ORDERED that:

1. Defendants' motion for summaryjudgment (Document No. 73) is GRANTED as to Plaintiff's First, Second, Third, Fifth, Sixth and Seventh Claims for Relief and DENIED in part as to Plaintiff's Fourth Claim for Relief.

2. Plaintiff's motion for partial summaryjudgment (Document No. 76) is GRANTED in part as to Plaintiff's Fourth Claim for Relief and otherwise DENIED.

3. The Court DECLARES that Defendant Canino's failure to independently assess the reliability and credibility of the confidential informants whose testimony she relied upon in assessing Plaintiff's inmate account violated the procedural due process rights Plaintiff was entitled to given his protected property interest in the security of his inmate account.

4. The clerk of court is directed to close this case.

United States Court of Appeals,
Third Circuit.
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.

No. 07-1678.
Argued April 9, 2008.
Filed Sept. 19, 2008.

*280 Jeffrey M. Boerger (Argued), Stan S. Kuruvilla, Jane Lee Huang, Drinker Biddle & Reath LLP, Philadelphia, PA, for Appellant.

Claudia M. Tesoro (Argued), Calvin R. Koons, John G. Knorr, III, Attorney General, Philadelphia, PA, for Appellees.

Before SMITH, HARDIMAN, and COWEN, Circuit Judges.


OPINION
SMITH, Circuit Judge.

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. FN1 *281 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 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.

FN1. 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).


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 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.FN2

FN2. 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, 111 S.Ct. 2105, 115 L.Ed.2d 1 (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.?).


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 *282 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 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 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 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'*283 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. 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.

[1] Headnote Citing References 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, 89 S.Ct. 1944, 23 L.Ed.2d 491 (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).

[2] Headnote Citing References ?[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, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (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.

[3] Headnote Citing References 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, *284 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, 110 S.Ct. 975, 108 L.Ed.2d 100 (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' 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, 99 S.Ct. 1379.

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, 537 F.3d 301, 306-07 (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 mootness here.? City of Erie v. Pap's A.M., 529 U.S. 277, 288, 120 S.Ct. 1382, 146 L.Ed.2d 265 (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. *285 United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (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.
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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

IV.
[4] Headnote Citing References 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, 109 S.Ct. 1904, 104 L.Ed.2d 506 (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 interest for purposes of procedural due process.FN3

FN3. 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, 118 S.Ct. 2131, 141 L.Ed.2d 451 (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, 118 S.Ct. 2131. 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 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, 118 S.Ct. 2131.


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.

*286 ?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 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, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); see also Phillips v. Washington Legal Found., 524 U.S. 156, 163-64, 118 S.Ct. 1925, 141 L.Ed.2d 174 (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, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (?The hallmark of property ... is an individual entitlement grounded in state law.?); Roth, 408 U.S. at 577, 92 S.Ct. 2701. 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 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.FN4 It appears to be an issue of first impression across the courts of appeals.

FN4. 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 291. 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).


*287 [5] Headnote Citing References 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, 114 S.Ct. 2309, 129 L.Ed.2d 304 (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, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987) (?In Kaiser Aetna v. United States [444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979)] ... 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, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979) (referencing a bundle of rights as part of takings analysis); Henneford v. Silas Mason Co., 300 U.S. 577, 582, 57 S.Ct. 524, 81 L.Ed. 814 (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, 98 S.Ct. 1729, 56 L.Ed.2d 185 (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 ?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 *288 an essay on ownership in which he attempted to list the incidents of ownership that have 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 money judgment FN5 by assessing his inmate account.

FN5. 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....?


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, 505 Pa. 327, 479 A.2d 940 (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, 346 Pa. 13, 29 A.2d 328 (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 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.FN6 As such, they possess the *289 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.

FN6. 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 295-96. 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, neither the fact nor cost of Mobley's treatment-although not yet formally determined-is a disputed issue.


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 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*290 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 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.FN7 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.

FN7. 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).


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 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.FN8

FN8. 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 293. 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 294. 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 293 (quoting Sandin v. Conner, 515 U.S. 472, 482, 115 S.Ct. 2293, 132 L.Ed.2d 418 (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, 102 S.Ct. 1148 (?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, 92 S.Ct. 2701, 33 L.Ed.2d 548 (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 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, 115 S.Ct. 2293. As the Supreme Court instructed in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), ?(t)he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.? Id. at 560, 94 S.Ct. 2963 (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.

*291 V.
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.

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.

*292 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, 109 S.Ct. 1904, 104 L.Ed.2d 506 (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 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, 115 S.Ct. 2293, 132 L.Ed.2d 418 (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, 115 S.Ct. 2293. After responding with ?angry and foul language,? the inmate was charged with disciplinary infractions and brought before an adjustment committee. Id. at 475, 115 S.Ct. 2293. Without permitting the inmate to present witnesses in his defense, the adjustment 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, 115 S.Ct. 2293. The inmate sued various prison officials, claiming that they deprived him of his liberty without due process of law. Id. at 476, 115 S.Ct. 2293.

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, 115 S.Ct. 2293. 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); *293 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, 115 S.Ct. 2293. In one pre- Sandin case, for example, an 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, 115 S.Ct. 2293 (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, 115 S.Ct. 2293. 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, 115 S.Ct. 2293.

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 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. FN9 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.

FN9. 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.

First, it permits inmates to circumvent the Supreme Court's holding that disciplinary segregation does not automatically *294 trigger the procedural protections of the Fourteenth Amendment. See Sandin, 515 U.S. at 486, 115 S.Ct. 2293. 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 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, 115 S.Ct. 2293.

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 ?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, 115 S.Ct. 2293 (citing Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 125, 97 S.Ct. 2532, 53 L.Ed.2d 629 (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, 125 S.Ct. 1141, 160 L.Ed.2d 949 (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, 115 S.Ct. 2293. 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? or ?significant? in relation to ?the ordinary incidents of prison life.? Sandin, 515 U.S. at 484, 115 S.Ct. 2293. Accordingly, such regulations *295 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, 115 S.Ct. 2293.

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 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, 119 S.Ct. 977, 143 L.Ed.2d 130 (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, 119 S.Ct. 977 (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, 119 S.Ct. 977.

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 hearing? to determine ?the amount of financial loss or costs, if any,? FN10 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 *296 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.

FN10. 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.

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 account can be debited.FN11 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:

FN11. 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.

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 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.