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And we do not hold that a state
legislature may not constitutionally
provide by statute that such money
shall be permanently confiscated,
provided that the forfeiture pro-
ceedings are surrounded by adequate
procedural safeguards, and

provided that inmates who are
found with money in their possession
are given some opportunity to
justify their possession notwith-
standing their apparent violation
of prison rules.

548 F.2d at 759.

In Nickens v. White, 536 F.2d 802 (8th Cir. 1976), the plaintiff alleged that the defendant institution officials had confiscated a catalogue of office supplies which had been mailed to him at the institution. He complained that the confiscation had deprived him of property without due process of law. The court recognized that under Lynch v. Household Finance Corp., supra, the deprivation of property may be the basis for a civil rights action but stated: "We think, however, that the property interests involved in the catalogue as pleaded are so de minimus that the confiscation in the one instance pleaded does not constitute such a taking of property that due process rights are implicated." 536 F.2d at 803. However, the court found that the complaint could allege a deprivation of freedom of speech under the First Amendment, and reversed the dismissal.

The plaintiff in Cruz v. Cardwell, 486 F.2d 550 (8th Cir. 1973) alleged that the defendant sheriff had seized $206 from him in connection with his arrest and had failed and refused to return the money to him upon his transfer to another institution. The plaintiff further alleged that the defendant had failed to follow customary procedures in not transferring plaintiff's personal property when he was transferred to the state institution. The plaintiff had also included copies of correspondence with the defendant in which he stated he had not found a means to pay plaintiff the money. The court reversed the district court's order dismissing the case:

In this case, we do not view the correspondence from Sheriff Cardwell,

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The court affirmed the district court's dismissal of plaintiff's complaint for failure to state a claim in Tyler v. "Ron" Deputy Sheriff, 574 F.2d 427 (8th Cir. 1978). The plaintiff alleged that while he was being held in a holdover cell pending his appearance in court for arraignment, the jailor took from him the legal papers he was carrying. However, the papers were returned to plaintiff later in the day, before he appeared for his arraignment. Plaintiff failed to allege any facts which would support a finding that the taking of his papers interfered with or infringed his right of access to the court. There was no claim that his ability to represent himself at the arraignment or any other future proceeding was impaired or prejudiced. Therefore, the complaint was properly dismissed for failure to state a claim.

The plaintiff in Milton v. Nelson, 527 F.2d 1158 (9th Cir. 1976) had acquired sixty-three paperback books while he was incarcerated at San Quentin. After he was transferred to Deuel Vocational Institute, where the regulations provided that each prisoner was allowed only ten paperback books, all but ten of his books were confiscated. The court noted that respondeat superior was not available to impose liability upon the supervisory personnel and the remaining two individual defendants had acted pursuant to department of correction regulations. The court stated:

Once it is established that a defendant was acting pursuant to official regulations, the burden shifts to the plaintiff to assert that the defendant was not acting in good faith.

No such showing has been made by
appellant. Even if the regulations
are subsequently found to be
invalid, a defendant's good
faith enforcement of these
regulations can still be a
defense to a section 1983 suit.

527 F.2d at 1160. The opinion did not discuss whether the regulations merely prohibited possession of more than ten books or whether they specifically authorized the confiscation of any books exceeding the number permitted; nor did it discuss the procedures utilized in the confiscation. An important distinction between Sell, supra, and Milton is that in Sell the plaintiffs sought only the return of their money while in Milton the plaintiff sought money damages equal to the value of the confiscated books.

In an earlier case, Hansen v. May, 502 F.2d 728 (9th Cir. 1974), the plaintiff alleged that his personal property had been confiscated when he was placed in maximum security confinement and that over half of it was not returned to him when he was released. The court reversed the dismissal of the complaint, finding possible violations of both the Fourth Amendment's proscription against unreasonable searches and seizures and the Fourteenth Amendment's right to due process of law. Although the complaint did not allege the defendant's personal involvement in the confiscation of the property, the court noted that if the state imposed liability upon the warden for the misconduct of his subordinates he could be liable under section 1983. 502 F.2d at 730. Further, even if the named defendant could not properly be held personally liable plaintiff could amend his complaint by adding as defendants those prison officials who did gather and hold his personal property.

9. Prison Regulations Hair Length, Grooming, Dress, Telephone Privileges

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In upholding regulations promulgated by the North Carolina department of correction, the Supreme Court, in Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977) emphasized

that courts must give "appropriate deference to the decisions of prison administrators and appropriate recognition to the peculiar and restrictive circumstances of penal confinement. 433 U.S. at 125, 97 S.Ct. at 2538, 53 L. Ed. 2d at 638. In that case the test applied by the Court to determine the validity of the regulations was whether they were reasonable, whether they were consistent with the inmates' status as prisoners, and whether they were consistent with the legitimate considerations of the institution. 433 U.S. at 130, 97 S.Ct. at 2540, 53 L. Ed. 2d at 641.

Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) involved challenges to a prison regulation which provided that "[p]ress and other media interviews with specific individual inmates will not be permitted. The court upheld the regulation after analyzing it in terms of the legitimate policies and goals of the corrections system. These policies and goals it identified as internal security within the institution itself and deterrence of crime by confining criminal offenders in a facility where they are isolated from the rest of society, and giving the rehabilitative processes of the corrections system the opportunity to correct the offender's demonstrated criminal proclivity. The Court concluded: "It is in light of these legitimate penal objectives that a court must assess challenges to prison regulations based on asserted constitutional rights of prisoners. 417 U.S. at 823, 94 S.Ct. at 2804, 41 L. Ed. 2d at 502.

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Prison regulations may be challenged on the ground that they are over-broad, they are not reasonably related to the maintenance of proper order in the prison, or they were unreasonably applied to the plaintiff. United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971). In Rundle, the plaintiff was placed in maximum security as a matter of routine procedure because he was a pretrial detainee. He was not permitted to attend congregate religious services and alleged he was denied his constitutional right to practice his religion freely.

Ford v. Schmidt, 577 F.2d 408 (7th Cir. 1978) upheld prison regulations preventing inmates from passing property to each other without authorization. The plaintiffs claimed that they retained property interests which could only be curtailed upon a showing

that the regulation was justified by legitimate interests of penal administration. Plaintiffs claimed that the "no passing" rule was broader than necessary and denied them their constitutional right to possession of property. The court found that the prison officials could establish rules and regulations concerning the possession of property by inmates. by inmates. The "no passing" rule was rationally related to the security of the institution and did not violate the plaintiffs' constitutional rights.

The plaintiffs in Hill v. Estelle, 537 F.2d 214 (5th Cir. 1976) challenged regulations requiring them to wear their hair short, prohibiting beards and mustaches and allowing only minimal sideburns. The regulations also prohibited phone calls from the prison, and the decoration of cells. These restrictions were not applicable to female inmates. The court stated:

[W]here prisoner regulations are
neither unreasonable nor arbitrary,
the Federal Courts will not inter-
fere with the administration of
state prisons.
[W]e have not
yet reached a point where the Federal
Courts should second-guess state
prison officials on the length of
prisoners' hair. The same is true
of prison regulations pertaining
to making phone calls (plaintiffs
have not complained of inability
to communicate with courts, counsel,
or their families and friends) and
decorating their cells. Such regu-
lations do not constitute an abuse
of the discretion enjoyed by prison
authorities.

537 F.2d at 215. The court further held the failure to apply the regulations to women prisoners did not deny plaintiffs equal protection:

The regulations impinge on no
fundamental right and create
no suspect classification.
The disparity between the
regulations for male and
female inmates is not so
grievous as to make them
arbitrary or unreasonable,

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