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WEBSTER v. CHEVALIER

October 19, 1993

TIMOTHY C. WEBSTER, ISMAEL ABEN,1 MICHAEL PERKINS, and SIXTO JANSEN, Plaintiffs,
v.
MARC L. CHEVALIER and HUBERT J. SPECKARD, Defendants.


TELESCA


The opinion of the court was delivered by: MICHAEL A. TELESCA

INTRODUCTION

 The plaintiffs, proceeding pro se, have filed this action seeking relief under 42 U.S.C. § 1983 and have requested permission to proceed in forma pauperis. Plaintiffs' request to proceed as poor persons is granted. Plaintiffs have failed to plead a cause of action under § 1983, and for the reasons set forth below, the complaint is dismissed.

 BACKGROUND

 Plaintiffs, incarcerated at the Groveland Correctional Facility, filed this claim pursuant to 42 U.S.C. § 1983 against both the Superintendent and the Institution Steward. They claim that their due process rights have been violated by a mandatory Groveland policy which requires that $ 40 be collected from inmates' income and placed in an escrow account. Although the total amount withheld will not exceed $ 40, and although the funds will be returned to them upon release, plaintiffs nonetheless complain that this withholding policy deprives them of their property, and of the $ 40 "gate money" from state funds, to which inmates were formerly statutorily entitled. Plaintiffs also complain that the New York State Department of Correctional Services is improperly collecting interest accumulated on wages which were "lagged" during the first fifteen weeks of 1992.

 DISCUSSION

 I. Statutory Entitlement to "Gate Money"

 Plaintiffs, who complain that the recently initiated withholding policy was instituted by Groveland officials for their own purposes, are unaware that it was the New York State Legislature which abolished the $ 40 "gate money" gift. *fn2" New York York Correction Law now imposes upon the Corrections Commissioner the duty of ensuring that out-going inmates have sufficient funds upon being released from a prison facility:

 
The superintendent [of each facility] shall furnish to each inmate who shall be discharged or released from said facility by pardon, parole, conditional release or otherwise . . . suitable clothing adapted to the season in which he is discharged . . . and transportation to the county of his conviction or to such other place as the commissioner of correctional services may designate. In addition, the commissioner shall take such steps as are necessary to ensure that inmates have at least forty dollars available upon release.

 New York Correct. L. § 125(2) (McKinney's Supplement 1993) (emphasis supplied). The highlighted passage, which took effect April 10, 1992, replaced an earlier provision which required that released inmates be given forty dollars from state funds. Id., Historical and Statutory Notes.

 Section 1983 provides a cause of action on behalf of individuals who have been deprived, by persons acting under color of state law, of rights, privileges, or immunities secured by the Constitution and laws. 42 U.S.C. § 1983. Affording plaintiffs' complaint the liberal reading due pleadings filed by pro se litigants, Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1973), it may be construed as articulating a claim that the plaintiffs have been deprived of two forms of property without due process of law in violation of the Fourteenth Amendment: the $ 40 gate money from the state, and the money being temporarily withheld, but otherwise due them, from income or from outside sources.

 Procedural due process imposes constraints on governmental decisions which "deprive" individuals of property interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment. As the Supreme Court noted in Board of Regents v. Roth, "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 . . . ." 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).

 Plaintiffs are incorrect in claiming that Groveland officials are depriving them of property to which they would otherwise be entitled. It was the legislature of the State of New York which created the statutory entitlement of an inmate to receive $ 40 upon leaving the prison system, and it was subsequent legislative action which cancelled the State's contribution to the entitlement. Accordingly, ...


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