Burns v. PA Department of Correction

OPINION

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.1 *281Appellant 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.

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.2

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 *282until 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 (“An-sari”) 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 Mob-ley — 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 Mob-ley 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 in*283formants’ 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.

Article III of the U.S. Constitution provides that the “judicial Power shall extend to ... Cases ... [and] to Controversies.” U.S. Const. Aet. Ill, § 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 plaintiffs 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).

“[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.

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, *284the 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 ease — 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. United States v. Concentrat*285ed Phosphate Export Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968) (“The test for mootness in eases [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.CivP. 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.

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.3

*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.4 It appears to be an issue of first impression across the courts of appeals.

*287The 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 tran-smissibility and absence of term, the prohibition of harmful use, liability to execution, and the incident of residuarity: this makes eleven leading incidents.

A.M. Honoré, 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 catalogu-ing 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 *288an 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 judgment5 by assessing his inmate account.

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.6 As such, they possess the *289unilateral 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.

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 debt- or’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., Microeco-nomic Theory 168-94 (1995) (providing a general discussion of expected value theory); see also Hal R. Varían, Microeconom*290ic 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.7 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.

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.8

*291V.

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 a,kin 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 Appel-lees and remand for further proceedings consistent with this opinion.