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September 6, 1978

Harold X (SMITH)
William B. ROBINSON, Commissioner, Robert L. Johnson, Ex-Superintendent, Julius T. Cuyler, Superintendent, Robert Wolfe, Administrative Asst., Mr. Creamer, Business Manager, Lou Shemlry, Accountant and Mr. Batdoff, Mail Room Officer

The opinion of the court was delivered by: LUONGO

Plaintiff, a prisoner confined at the State Correctional Institution at Graterford, Pennsylvania, filed this complaint Pro se on January 23, 1976. He originally sought damages and equitable relief under the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985 (1970), as well as declaratory relief, on four separate claims involving allegedly unlawful acts committed by Graterford officials and allegedly unconstitutional policies adopted by the Pennsylvania Commissioner of Correction. Defendants are the Pennsylvania Commissioner of Correction, the past and present superintendents at Graterford, and the Business Manager and Mail Room Supervisor at Graterford, as well as several lesser officials. I appointed student counsel to represent plaintiff, pursuant to Local Rule 91/2, and the parties then engaged in discovery. Defendants later moved for summary judgment, and plaintiff in turn moved for partial summary judgment. Fed.R.Civ.P. 56. For the reasons hereafter stated, I conclude that plaintiff's motion should be denied, and that defendants are entitled to partial summary judgment.

Although all four of plaintiff's claims are based on events that took place during his confinement at Graterford, the claims are largely unrelated and may be treated separately for the sake of convenience.


 Plaintiff's principal contention here involves a policy adopted in January of 1972 by then-Commissioner Sielaff of the Pennsylvania Bureau of Correction and enforced by defendant Robinson up until April of 1978. This policy, as set forth in written memoranda to all Pennsylvania prison superintendents, prohibited inmates from opening outside savings accounts. It provided, however, that an inmate who already had an active savings account at the time he was incarcerated would be permitted to "retain it for deposit of regularly received income such as checks from Veterans Administration, Social Security, Pension, etc." Sielaff Memorandum, Exhibit X to Complaint; See Robinson Memorandum, Exhibit A to Defendants' Motion for Summary Judgment (Document No. 24).

 Although plaintiff already had an active savings account with the Fidelity Bank when he entered Graterford in August of 1973, defendant Johnson refused to permit use of this account because plaintiff had opened it under the name of William H. Bradford, an alias, rather than under Harold Smith, which was plaintiff's name at the time he was incarcerated. Plaintiff was discharged from Graterford on April 5, 1974. When he later attempted to change the name on the account to "Harold Smith," the bank book was lost in the mail. As a result, this account was closed and settled to the satisfaction of all concerned. Complaint P 14.

 In June and July of 1975, while again confined at Graterford, plaintiff opened an outside savings account with the Philadelphia Saving Fund Society by mailing in a one-dollar deposit. Complaint PP 15-16. Graterford officials evidently raised no objection to the transaction. However, when he sought in November of 1975 to deposit another forty dollars in that account, defendants refused to process this transaction, stating that use of the new account was prohibited by the banking policy referred to earlier.

 The complaint asserts that defendants' enforcement of this policy violated several constitutional provisions, particularly the due process and equal protection clauses of the fourteenth amendment. Although the complaint requests declaratory and injunctive relief, plaintiff's counsel has since conceded that these requests are moot in light of Commissioner Robinson's memorandum of April 8, 1978, which permits all inmates to establish and maintain outside savings accounts. Plaintiff's Supplemental Memorandum (Document No. 48) at 1; See Robinson Memorandum, Exhibit I to Defendants' Supplemental Memorandum (Document No. 47). Thus, only plaintiff's damages claim remains for adjudication. Both plaintiff and defendants seek summary judgment on this claim.

 Plaintiff argues, first of all, that defendants' refusal to let him use an outside savings account deprived him of property without due process of law. His argument calls attention to defendants' overall management of money earned or received by Graterford inmates. It is undisputed that such moneys are credited to the inmate's "intra-institutional account," and then pooled into the Inmate Cash Fund. Cramer Affidavit PP 7-9, 20 (Exhibit A to Defendants' Motion for Summary Judgment). The bulk of each institution's Inmate Cash Fund is sent to the Bureau of Correction, which in turn pools those moneys (together with other moneys not pertinent here) into the General Welfare Fund. Id. PP 21-22, 24. Finally, the Bureau invests all moneys contained in the General Welfare Fund, "and the interest earned is used solely for the benefit of all inmates in all State Correctional Institutions for such things as movies, recreational supplies, television, etc." Id. P 25.

 Although defendants contend that their actions did not violate plaintiff's constitutional rights, they rely primarily on the affirmative defense of qualified, "good faith" immunity. See generally Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978); Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 (1978); Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975); Developments in the Law Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1209-17 (1977); The Supreme Court, 1974 Term, 89 Harv.L.Rev. 47, 219-25 (1975). Procunier v. Navarette, supra, establishes beyond question that "prison officials and officers" enjoy qualified immunity from damages liability under the Civil Rights Act of 1871. 434 U.S. at 561, 98 S. Ct. 855, 55 L. Ed. 2d 24 (addressing claims based on 42 U.S.C. § 1983); See Raitport v. Provident Nat'l Bank, 451 F. Supp. 522, 534 (E.D.Pa.1978) ("sections 1983 and 1985 require identical analyses where immunity is asserted"). The critical question here is whether, by reason of this defense, defendants are entitled to judgment as a matter of law on plaintiff's damages claim. I conclude that they are.

 Under Wood v. Strickland, supra, an official who enjoys qualified immunity may nevertheless be held liable for damages "if (he) knew or reasonably should have known that the action he took within the sphere of his official responsibility would violate the constitutional rights of the (individual) affected, Or if (he) took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to (that individual)." 420 U.S. at 307, 95 S. Ct. at 994 (emphasis supplied). Although the complaint here fairly alleges that defendants' conduct was Intentional, Procunier v. Navarette, supra, 434 U.S. at 566, 98 S. Ct. 855, plaintiff has neither alleged nor shown by affidavit that their conduct was Malicious. Accordingly, the second branch of the Wood v. Strickland standard cannot override defendants' claim of qualified immunity, Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978), and only the first branch is applicable here.

 The Supreme Court restated that portion of the standard only recently in Procunier v. Navarette, supra :

"Under the first part of the Wood v. Strickland rule, the immunity defense would be unavailable to (defendant prison officials) if the constitutional right allegedly infringed by them was clearly established at the time of their challenged conduct, if they knew or should have known of that right and if they knew or should have known that their conduct violated the constitutional norm."
434 U.S. at 562, 98 S. Ct. at 860.

 Application of that standard here requires that I determine whether, at any time between January of 1972 and April of 1978, state prisoners enjoyed a clearly-established due process right to earn interest on moneys received while incarcerated. If no such clearly-established right existed during the relevant time period, then I need not go on to determine (a) whether defendants knew or should have known of that right, or (b) whether defendants knew or should have known that their conduct infringed upon that right. See Procunier v. Navarette, supra, 434 U.S. at 565, 98 S. Ct. 855.

 The inquiry here is hampered by plaintiff's failure to articulate clearly the nature of his due process claim. Plaintiff's memorandum of law could be interpreted to assert (1) a procedural due process claim, (2) a substantive due process claim, (3) a claim based on the takings clause of the fifth amendment, as incorporated into the due process clause of the fourteenth amendment, See, e.g., Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978), or (4) some combination of these theories. See generally Holder v. Nelson, 514 F.2d 1091, 1091 n.2 (9th Cir. 1975) (per curiam).

 Whichever theory is adopted, however, neither the cases cited by plaintiff nor the other decisions that address this issue can support a claim that state prisoners, during the six-year period in question, enjoyed a well-settled constitutional right to earn interest. Sell v. Parratt, 548 F.2d 753 (8th Cir. 1977), held only that prison officials could not permanently confiscate currency in a prisoner's possession to punish him for violating a prison regulation barring inmates from possessing currency. The due process violation in Sell was clearly identified by the court: the Nebraska Department of Correctional Services exceeded its statutory authority by promulgating the regulation that authorized such forfeitures of currency as a means of punishment. 548 F.2d at 759. In sharp contrast, the "missing" interest here never came into plaintiff's possession, and so was not confiscated; moreover, the banking policy formerly enforced at Graterford was not punitive in nature, and plaintiff has never contended that the Commissioner of Correction lacked statutory authority to adopt it.

 Holder v. Nelson, 514 F.2d 1091 (9th Cir. 1975) (per curiam), the other court of appeals decision relied on by plaintiff, is also of little help. Plaintiffs in Holder sought to enjoin as unconstitutional the operation of a California statute that (apparently) authorized prison officials to deposit into an Inmates' Welfare Fund "interest earned on inmates' savings accounts held in trust under Cal. Penal Code § 5008." 514 F.2d at 1091. The district court dismissed the complaint for failure to state a claim, and the court of appeals reversed, holding that the claims asserted presented a substantial federal question and so required convocation of a three-judge court. 514 F.2d at 1092. Plaintiff argues that the Holder court found this "taking" of inmates' accrued interest "to be sufficient to constitute a deprivation of property without due process of law in violation of the Fourteenth Amendment." To the extent that this argument interprets Holder as a decision on the Merits of such a claim, it is obviously ill-founded.

 Douglas v. Ward, 77 Civ. 2559 (S.D.N.Y. Aug. 30, 1977) (Frankel, J.), the most recent district court authority relied on by plaintiff, is a terse, unpublished interim order denying defendants' motion to dismiss the complaint. The pertinent part of Judge Frankel's order reads as follows:

"Plaintiffs' case is substantial enough (under the Equal Protection and Due Process Clauses) to withstand dismissal at this stage. As of now, the court is not enlightened by defendants as to any supposedly rational reason for depriving inmates of ...

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