Sell v. Parratt
| Decision Date | 02 February 1977 |
| Docket Number | No. 76-1307,76-1307 |
| Citation | 548 F.2d 753 |
| Parties | Dennis SELL and Edward Konder, Appellees, v. Robert F. PARRATT, Warden, Nebraska Penal and Correctional Complex, et al., Appellants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Melvin K. Kammerlohr, Asst. Atty. Gen., Lincoln, Neb., for appellant; Paul L. Douglas, Atty. Gen., Lincoln, Neb., on brief.
Alan Saltzman, Associate Professor of Law, University of Detroit, Detroit, Mich., for appellee.
Before GIBSON, Chief Judge, VAN OOSTERHOUT, Senior Circuit Judge, and HENLEY, Circuit Judge.
In September, 1973 Dennis Sell and Edward Konder, plaintiffs in the district court, were inmates of the Nebraska Penal and Correctional Complex and were in the immediate custody of the Warden of that institution who is a subordinate of the Director of the Nebraska Department of Correctional Services. 1 During that month subordinate prison personnel found Sell to be in possession of $463.00 in United States currency, and plaintiff Konder was found to have $40.00 concealed in his locker. Pursuant to prison rules and regulations, the money was immediately seized and summarily confiscated without hearing and was deposited in the Inmates Welfare Fund of the prison.
Additionally, Sell had good time taken away from him and was changed in status from a minimum custody inmate to a medium custody inmate. Konder was required to spend a period of time in a disciplinary cell. Apparently, neither plaintiff was afforded a hearing with respect to the punishment imposed upon him, including the seizure and confiscation of the money that was found in his possession.
In 1974 Sell and Konder commenced this action in the United States District Court for the District of Nebraska seeking return of the moneys in question and for appropriate declaratory and injunctive relief. The defendants were the Warden, the Acting Director of the Department, and the subordinate prison employees who had effected the actual seizures. Subject matter jurisdiction was predicated upon 28 U.S.C. § 1343 and 42 U.S.C. § 1983. Plaintiffs also invoked the pendent jurisdiction of the district court.
While the defendants denied that they had deprived the plaintiffs of any property without due process of law and contended that the rules and regulations under which they operated were valid, they admitted the factual allegations of the complaint, acceded to a number of requests for admissions propounded by plaintiffs and answered interrogatories in a manner favorable to the plaintiffs. The defendants propounded interrogatories to the plaintiffs inquiring as to the source of the moneys and as to the circumstances in which the moneys were acquired. Plaintiffs objected to those interrogatories and ultimately their objections were sustained by the district court. 2
On July 30, 1975 plaintiffs moved for summary judgment pursuant to Fed.R.Civ.P. 56. In February, 1976 the district court filed a thorough memorandum opinion and entered an order granting the motion. The district court adjudged that the money taken from Sell be returned to him, and that the money taken from Konder be credited to his account on the prison books to be returned to him upon his release from prison. 3
For reversal, the defendants contend, as they contended in the district court, that the prison rules under which the two sums of money were seized and confiscated were reasonable and valid rules, that "free world money" in the hands of Nebraska convicts is contraband, and that plaintiffs had no property rights in the money which came under the protection of the fourteenth amendment. As indicated, the district court rejected those contentions. We affirm.
There is no dispute about the facts of the case, which have been outlined already, nor is there any dispute about the provisions of relevant Nebraska statutes or about the prison rules and regulations under which the defendants, including the subordinate prison employees, acted.
The Nebraska prison system consists of a number of facilities under the jurisdiction of the Department of Correctional Services, which is administered by a Director. Each of those facilities, including the Penal and Correctional Complex, is under the immediate control of a Warden, and he, of course, has a number of subordinate employees with different ranks and duties.
R.S.Neb. § 83-173 provides that the Director shall, among other things: (1) Supervise and be responsible for the administration of the Department. (2) Establish and administer policies and programs for the institutions under his control and for the custody, control, safety, correction and rehabilitation of inmates of the several institutions subject to his jurisdiction. (3) Appoint and remove the chief executive officer of each institution and subordinate employees and delegate to them appropriate powers and duties. (4) Make rules and regulations for the management, correctional treatment and rehabilitation of inmates and for the administration of facilities and the conduct of officers and employees under his jurisdiction.
R.S.Neb. § 83-185 relates to the punishment of inmates for infractions of prison rules. Insofar as here pertinent, the section is as follows:
(1) The chief executive officer of each facility shall be responsible for the discipline of those persons committed to the Division of Corrections who reside therein. No person shall be punished except upon the order of the chief executive officer of the facility; nor shall any punishment be imposed otherwise then in accordance with this section.
(2) Except in flagrant or serious cases, punishment for misconduct shall consist of deprivation of privileges. In cases of flagrant or serious misconduct, the chief executive officer may order that a person's reduction of term as provided in section 83-1,107 be forfeited or withheld and also that the person be confined in a disciplinary cell. The chief executive officer may order that such person, during all or part of the period in a disciplinary cell, be put on an adequate and healthful diet. A person in a disciplinary cell shall be visited at least once every eight hours. No cruel, inhuman or corporal punishment shall be used on any person.
(3) The chief executive officer shall maintain a record of breaches of discipline, of the disposition of each case, and of the punishment, if any, for each such breach. Each breach of discipline shall be entered in the person's file, together with the disposition or punishment therefor.
R.S.Neb. § 83-417 is as follows:
If any person employed at the Nebraska Penal and Correctional Complex, in any capacity, shall willfully and negligently suffer any prisoner to go at large, or be visited, conversed with, comforted or relieved within the prison, or shall convey to or from any prisoner any communication, newspapers, matches or any article without the approbation of the warden, he shall upon conviction thereof be punished by a fine not exceeding one thousand dollars or by imprisonment in the Nebraska Penal and Correctional Complex not exceeding ten years.
And R.S.Neb. § 28-201 provides that whoever aids, abets, or procures another to commit any offense may be prosecuted and punished as though he were the principal offender.
The record reflects that when an individual is committed to the Complex and is received thereat, he is thoroughly searched and is required to turn over items of personal property, including money, to prison personnel. He is given a receipt for such items, and presumably they are returned to him when he is released from the institution. If an inmate with money in his possession desires to have it transmitted to a third person in the civilian world, that will be done.
While an inmate is confined in the institution, he is not permitted to have money in his possession in any circumstances, or directly and personally to receive money from others. His day-to-day commissary needs may be met by means of color coded scrip which is issued by the institution and which an inmate may possess in limited amounts.
If an inmate is found in possession of money, he is deemed guilty of a serious disciplinary offense and may be severely punished. In addition, the money found in his possession is summarily taken away from him and is confiscated in the sense that it is deposited in the Inmates Welfare Fund which is a fund maintained for the benefit and welfare of all inmates. Once money taken from an inmate is placed in the Welfare Fund, it is lost to him as effectively as though it had been paid over into the general state treasury, and although the inmate may derive some benefit from the Fund as an inmate, that benefit is not directly connected with the particular money that was taken from him and placed in the Fund.
When money is found in the possession of an inmate, the seizure and confiscation of it are both summary and final and are not subject to later administrative review. Although the inmate may be afforded a hearing in connection with the final disposition of the disciplinary charge against him, and in the course of it may be called upon or given an opportunity to explain how he came to be in possession of the money, there is no way in which he can retrieve the money, either immediately or ultimately, from the Welfare Fund. As far as the inmate is concerned, the money is simply lost.
In the course of the discovery proceedings it was admitted by the defendants that the confiscation of free world money found in the possession of an inmate is punitive in nature and is in addition to other punishments that may be imposed upon the inmate on account of his having been in possession of the money in the first place.
Let it be made clear at the outset of discussion that no one questions the right of a state to forbid its convicts to have money in their possession while undergoing confinement and may take away from them money that is found in their possession....
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