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September 9, 1981

Douglas LOWERY
Julius T. CUYLER

The opinion of the court was delivered by: BECKER


Narrowed to its essentials, this case presents a single discrete issue of constitutional law in a prison setting: whether a prison regulation providing for confiscation of contraband money can constitute a due process violation. The issue is before us on cross-motions for summary judgment; there is no factual dispute relevant to the constitutional question.

 Plaintiff is an inmate at the State Correctional Institute at Graterford (SCIG). On July 2, 1980, during a routine cell search, cash totalling $ 1,045 was discovered, confiscated, and deposited in the Inmate Welfare Fund pursuant to prison policy. *fn1" In this action, brought pursuant to 42 U.S.C. § 1983 against the superintendent, plaintiff is seeking return of that cash.

 The possession of money by an inmate within the confines of a Pennsylvania State Correctional Institution is prohibited by prison regulation. Money is defined as confiscatable contraband in the Inmate Handbook, which all inmates receive when they enter the prison, as well as in a Bureau of Correction Administrative Memorandum entitled "Confiscation of Contraband Money." *fn2" When an inmate is received at SCIG all of his money is placed in an inmate account under his name, and any salary an inmate earns while at SCIG is placed directly in his inmate account. Inmates pay for items purchased in the institutional commissary by using "cash slips" which are deducted in advance from their inmate accounts. *fn3"

 Plaintiff contends that the regulations and policies that result in forfeiture of contraband currency deprive him of his property without due process of law. *fn4" He relies in this regard on Sell v. Parratt, 548 F.2d 753 (8th Cir.), cert. denied, 434 U.S. 873, 98 S. Ct. 220, 54 L. Ed. 2d 152 (1977). Sell held that, under Nebraska law, inmates' possession of money gave them a property interest protected within the meaning of the Fourteenth Amendment, and that confiscation of that property was "punitive in nature and amounted to a forfeiture, a proceeding which is not favored by the law." Id. at 758. The Court further held that: (1) because a forfeiture requires statutory authority and Nebraska statutes did not specifically authorize forfeiture as punishment for violation of prison regulations, the confiscation could not be sustained; and (2) when an agency works a forfeiture without statutory authority, it thereby violates the due process clause. *fn5"

 Plaintiff points to the lack of express statutory language authorizing confiscation of currency from prisoners in Pennsylvania and urges that we follow Sell. Defendant, on the other hand, invokes the provisions of 71 P.S. § 306, an enabling statute which authorizes the "Boards of Trustees of each state correctional institution and the Commissioner of Correction to promulgate by-laws, rules and regulations for the management of state prisons, with the approval of the Department of Justice." *fn6" In the Commonwealth's view, there is no necessity for specific statutory authorization to enable the Bureau of Correction to permanently confiscate money found in the possession of inmates since the designation of what items constitute contraband and the appropriate disposition of contraband are left to the Commissioner of Correction under that statute.

 Defendant also argues that inmates have no property interest in contraband, since they hold it illegally, and that the confiscation is plainly permissible, citing Kimble v. Department of Corrections, 411 F.2d 990 (6th Cir. 1969) in support of this position. In Kimble, the Sixth Circuit held that the confiscation by prison officials of the sum of $ 350 seized from an inmate's person *fn7" was within the regulatory power of prison officials and did not constitute a due process violation. Finally, defendant points out that Pennsylvania has made it a misdemeanor to give money to an inmate, 18 Pa.C.S. § 5123(b). That statute, it is suggested, makes it plain that an inmate has no property interest under Pennsylvania law in contraband monies, *fn8" and also serves to satisfy the Sell "statutory authority" test. For the reasons which follow, we will grant summary judgment for the defendant.

 As we see the case, the core question before us concerns the nature of the interest of which plaintiff has been deprived. In essence, the question is whether a state prison system may define the property in which an incarcerated inmate may gain an interest after his incarceration. If it can, and if an inmate is not permitted to acquire certain items, he can have no property interest in such items, and they would therefore not be protectible within the meaning of the Fourteenth Amendment. The "forfeiture" question would be irrelevant, for there would be no protectible property interest in the "forfeited" items.

Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry. Accordingly, we have held that even when an institutional restriction infringes a specific constitutional guarantee, such as the First Amendment, the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security ....
... (The) problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions. Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. "Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters."

 Id. at 546-48, 99 S. Ct. at 1878-1879; quoting Pell v. Procunier, 417 U.S. 817, 827, 94 S. Ct. 2800, 2806, 41 L. Ed. 2d 495 (1974) (citations and footnotes omitted).

 We can conceive of no clearer mandate to validate the regulation at issue before us. Defendant's justification for the prohibition of money is that it may enable an inmate to purchase contraband from other inmates or staff, to traffic in illegal services such as sex and drugs, to facilitate escape attempts, and to bribe staff. This justification strikes us as most compelling. Moreover, an inmate with money is a ready target of robbery attempts, thereby fostering internal conflict and violence. See Holt v. Hutto, 363 F. Supp. 194, 210 (E.D.Ark.1973), aff'd in relevant part and rev'd in part, 505 F.2d 194 (8th Cir. 1974). *fn9"

 The defendant asserts that permanent confiscation, rather than temporary dispossession either by placing the money in an individual inmate account or holding it only until the inmate is released, is essential to the maintenance of prison discipline. Defendant points in this regard to testimony (in an unrelated action) by the former Bureau of Correction Commissioner, William B. Robinson, who initiated the currency regulations, to the effect that cash is a paramount security threat, second only to guns, and that confiscation is the only effective deterrent. Otherwise, it will always be profitable in ...

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