Erik Mickelson, et al v. County of Ramsey, et al

Filing

OPINION FILED - THE COURT: Roger L. Wollman, Kermit E. Bye and Raymond W. Gruender AUTHORING JUDGE:Raymond W. Gruender (PUBLISHED) [4395230] [14-3164]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-3164
___________________________
Erik Mickelson; Corey Statham, individually and on behalf of all others similarly situated
lllllllllllllllllllll Plaintiffs - Appellants
v.
County of Ramsey; Keefe Commissary Network, L.L.C., doing business as Access
Corrections; First California Bank; Outpay Systems, L.L.C.; John Does 1-10
lllllllllllllllllllll Defendants - Appellees
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: October 22, 2015
Filed: May 4, 2016
____________
Before WOLLMAN, BYE, and GRUENDER, Circuit Judges.1
____________
GRUENDER, Circuit Judge.
Ramsey County, Minnesota collects all of a detained arrestee’s cash upon
booking. From this cash, the county automatically deducts a $25 booking fee. The

1

This opinion is being filed by Judge Gruender and Judge Wollman pursuant
to Eighth Circuit Rule 47E.

Appellate Case: 14-3164

Page: 1

Date Filed: 05/04/2016 Entry ID: 4395230

county later returns the arrestee’s remaining funds in the form of a prepaid debit card.
Erik Mickelson and Corey Statham, two men previously arrested in Ramsey County,
filed a 42 U.S.C. § 1983 action contending that the policies underlying these practices
violated their Fourteenth Amendment rights. The district court2 granted the
defendants’ motion for judgment on the pleadings. We affirm.
I.
Under Minnesota law, a “county board may require that each person who is
booked for confinement at a county or regional jail, and not released upon completion
of the booking process, pay a fee to the sheriff’s department.” Minn. Stat. § 641.12,
subdiv. 1. This “fee is payable immediately from any money then possessed by the
person being booked, or any money deposited with the sheriff’s department on the
person’s behalf.” Id. Pursuant to this statute, Ramsey County collects $25 from each
person who is booked into and not immediately released from its county detention
facility. The county takes this sum from the cash an arrestee is carrying at the time
of booking. If the arrestee is not carrying sufficient cash, the county charges the fee
and places the arrestee’s detention-facility account into a negative balance. An inmate
must satisfy this balance before he or she can purchase items from the jail commissary
or receive a disbursement of funds. If the arrestee has no funds at the time of booking
or during the period of incarceration, the county court may order payment of the fee
as part of any sentence imposed. Id.
Persons arrested and detained in Ramsey County are entitled to a refund of the
booking fee in three scenarios. First, an arrestee can recover the funds if he or she is
not charged with a crime. Second, an arrestee may receive a refund if charges are
dismissed. Finally, an arrestee may recover the $25 upon acquittal. To facilitate the

2

The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.
-2-

Appellate Case: 14-3164

Page: 2

Date Filed: 05/04/2016 Entry ID: 4395230

refund process, the Ramsey County sheriff’s department, according to a written
policy, must give all released inmates a “Booking Fee Refund Form.” Eligible
inmates who properly submit this form can recover the $25 taken for the booking fee.
Ramsey County also has a policy of confiscating all cash arrestees have at the
time they are booked into the county detention center. Instead of returning cash to
detainees upon release, the county issues prepaid debit cards for a sum equal to the
value of the confiscated cash less the booking fee. Along with the card, arrestees
receive a cardholder agreement explaining the fees associated with certain card uses.
The fees include:
Card Usage Fees
Card Activation Fee
Weekly Maintenance
Support Calls Fee
PIN Change Fee
Domestic ATM Fees
International ATM Fees
ATM Account Inquiry
POS Debit Fee (Pin and Signature)
ATM Decline for NSF
Card to Bank Transfer (ACH) Fee

Charge
FREE
$1.50
FREE
FREE
$2.75
$3.75
$1.50
FREE
$2.75
$3.00

The card starts incurring weekly maintenance fees after thirty-six hours. Withdrawing
cash will result in an ATM fee. Materials provided along with the card include a
website address providing customer service and a toll-free number that arrestees may
call. These resources advise cardholders how to avoid all fees—such as by spending
all of the funds on the card before the weekly maintenance fee accrues—and how to
minimize other possible fees. Several private entities work with the county to provide
these cards. Keefe Commissary Network, L.L.C. (“KCN”) coordinates the Ramsey
County inmate trust-fund and release-services program. First California Bank

-3-

Appellate Case: 14-3164

Page: 3

Date Filed: 05/04/2016 Entry ID: 4395230

(“FCB”), issues the prepaid debit cards. Finally, Outpay Systems, L.L.C., (“Outpay”)
processes any debit-card transactions.
Erik Mickelson and Corey Statham, the plaintiffs in the present suit, were
arrested in Ramsey County and subjected to the above-described policies and fees.
Mickelson was arrested for violating a noise ordinance. Police booked him into the
Ramsey County Law Enforcement Center and confiscated his personal property,
including $95 cash. Upon his release, Mickelson received a debit card carrying $70,
a value that represented his $95 in cash less the $25 booking fee. He subsequently
incurred $5 in fees while using the debit card. Mickelson ultimately pleaded guilty
to violating a city ordinance.
Statham was arrested for disorderly conduct and obstructing the legal process.
He was carrying $46 in cash when police booked him into the Ramsey County Law
Enforcement Center. Upon his release, Statham received a debit card containing $21.
His debit-card fees amounted to $7.25. All charges against Statham eventually were
dismissed. Despite this dismissal, Statham did not receive a refund of the $25
booking fee.
Mickelson and Statham sued Ramsey County, KCN, FCB, and Outpay, alleging
four claims related to the booking-fee and debit-card policies: (1) defendants were
liable under 42 U.S.C. § 1983 for violating the plaintiffs’ Fourth and Fourteenth
Amendment rights, (2) defendants were liable under 42 U.S.C. § 1983 for conspiring
to violate the plaintiffs’ civil rights, (3) defendants committed conversion, and
(4) defendants committed civil theft under § 604.14 of the Minnesota statutes. The
defendants answered, acknowledging that they administered and enforced the
contested policies. The plaintiffs and the defendants filed cross motions for judgment
on the pleadings. Mickelson and Statham alternatively moved for summary judgment.
The court considered the record before it, including Ramsey County’s written policy.
The court denied Mickelson and Statham’s motions and denied their class-certification
-4-

Appellate Case: 14-3164

Page: 4

Date Filed: 05/04/2016 Entry ID: 4395230

motion as moot. The court granted the defendants’ motions and entered judgment in
favor of Ramsey County, KCN, FCB, and Outpay. Mickelson and Statham now
appeal, arguing only that the district court erred by granting judgment for the
defendants on the due process claims.
II.
“We review a judgment on the pleadings de novo.” Williams v. Bradshaw, 459
F.3d 846, 848 (8th Cir. 2006). In doing so, “[w]e apply ‘the same standard as when
we review the grant of a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6).’” McIvor v. Credit Control Servs., Inc., 773 F.3d 909, 912-13 (8th Cir.
2014) (quoting Packard v. Darveau, 759 F.3d 897, 900 (8th Cir. 2014)). To survive
a motion for judgment on the pleadings, a “complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Id.
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[W]ell-pleaded facts, not legal
theories or conclusions, determine [the] adequacy of [t]he complaint.” Clemons v.
Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009) (alterations in original) (quoting
Mattes v. ABC Plastics, Inc., 323 F.3d 695, 698 (8th Cir. 2003)). “The facts alleged
in the complaint must be enough to raise a right to relief above the speculative level.”
Id. (quoting Drobnak v. Andersen Corp., 561 F.3d 778, 783 (8th Cir. 2009)).
“Determining whether a complaint states a plausible claim for relief . . . [is] a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679. We may consider materials
that necessarily are embraced by the pleadings or that are part of the public record and
do not contradict the complaint. Porous Media Corp. v. Pall Corp., 186 F.3d 1077,
1079 (8th Cir. 1999).

-5-

Appellate Case: 14-3164

Page: 5

Date Filed: 05/04/2016 Entry ID: 4395230

A.
Mickelson and Statham argue first that the district court erred by determining
that the county’s system of immediately collecting the booking fee complies with
procedural due process. In this appeal, Mickelson and Statham raise no substantive
due process or equal protection challenge to the statutorily authorized fee itself.
Instead, they contend only that the county violates the Fourteenth Amendment by
deducting the fee before first conducting a pre-deprivation hearing. They suggest that
the county, to avoid a constitutional violation, must delay collection until an arrestee
has been afforded the type of hearing associated with conviction. Our court therefore
must determine whether the district court correctly held that the county did not violate
the arrestees’ constitutional rights by collecting the $25 fee at booking without
affording a pre-deprivation hearing.
As an initial matter, we agree that Mickelson and Statham had a property
interest in the $25 used to pay the booking fee. The booking-fee policy thus
implicates procedural due process, and “the question remains what process is due.”
Morrissey v. Brewer, 408 U.S. 471, 481 (1972). The requirements of due process are
not rigid; rather, they “call[] for such procedural protections as the particular situation
demands.” Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 12
(1979). To determine whether the process afforded is sufficient, our court must
balance: “first, ‘the private interest that will be affected by the official action;’
second, ‘the Government’s interest;’ and third, ‘the risk of an erroneous deprivation
of [the private] interest through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards.’” Wallin v. Minnesota Dep’t of
Corr., 153 F.3d 681, 690 (8th Cir. 1998) (alteration in original) (quoting Mathews v.
Eldridge, 424 U.S. 319, 335 (1976)). “The ultimate balance involves a determination
as to when, under our constitutional system, judicial-type procedures must be imposed
upon administrative action to assure fairness.” Mathews, 424 U.S. at 348.

-6-

Appellate Case: 14-3164

Page: 6

Date Filed: 05/04/2016 Entry ID: 4395230

Although this booking-fee policy presents an issue of first impression in our
circuit, other courts have passed upon the constitutional validity of collecting a similar
fee at booking. The Sixth Circuit examined this issue in Sickles v. Campbell County,
501 F.3d 726 (6th Cir. 2007). There, the court noted that Campbell County
automatically deducted a booking fee of $20—later $30—immediately upon an
inmate’s arrival at the jail by taking the sum from the arrestee’s cash and crediting the
rest of the cash value to the inmate’s canteen account. Id. at 729. The court rejected
a procedural due process challenge from several arrestees who contended that the
county should refrain from collecting the fee without a pre-deprivation hearing or until
after sentencing. Id. at 731. The court held that a pre-deprivation hearing was not
constitutionally required because the county had a legitimate interest in collecting the
fee and because the challenging parties did not demonstrate why the jail’s grievance
procedure and other post-deprivation remedies failed to protect their interests in
preventing a flawed withholding. Id. at 731-32.
We find persuasive the Sixth Circuit’s assessment of the private and state
interests at play in Sickles. First, we agree with the court’s conclusion that the private
interest at stake—the lost use of the $25 booking fee taken from each arrestee—is
“small in absolute and relative terms.” Id. at 730. Although $25 is not an
insubstantial amount from the subjective standpoint of some arrested individuals, the
private interest in the use of this sum “do[es] not begin to approach the kinds of
government conduct that have required a predeprivation hearing, such as a limitation
on the ‘historic’ ‘right to maintain control over [one’s] home,’ or the termination of
government benefits, which for many people are ‘the very means by which to live.’”
Id. (alternation in original) (internal citations omitted). For the erroneously deprived
arrestee, the temporary deprivation of $25 is not comparable to “the cessation of
essential services for any appreciable time[, which] works a uniquely final
deprivation.” See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 20 (1978).
Other courts have reached the same conclusion about the limited nature of the private
interest at stake when examining automatic deductions for jail-related fees, even fees
-7-

Appellate Case: 14-3164

Page: 7

Date Filed: 05/04/2016 Entry ID: 4395230

that could far exceed the $25 at issue here. See, e.g., Slade v. Hampton Roads Reg’l
Jail, 407 F.3d 243, 253 (4th Cir. 2005) (stating that inmates had only a “limited”
property interest in a dollar-per-day jail-housing fee because the fee could only be
imposed, absent a hearing, for a period not to exceed five months). Accordingly, we
agree with the Sickles court’s determination that the private interest is relatively
modest.
Second, we agree with the Sickles court’s conclusion that the county’s interest
in collecting the fees at booking is substantial. Collecting the fee from those required
to pay under the statute allows the county to manage the costs of serving and policing
the community and “further[s] offender accountability.” 501 F.3d at 731. Courts
routinely recognize this interest when approving the collection of jail-related fees. In
Slade, for example, the Fourth Circuit upheld a jail’s practice of automatically
charging pretrial detainees one dollar per day in part because the jail had a “legitimate
interest in attempting to defray the costs of a prisoner’s keep and a legitimate interest
in the collection of the fee.” 407 F.3d at 253. The Fifth Circuit recognized a similar
interest in Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003). There, the
court upheld against a due process challenge a Louisiana statutory scheme that
required inmates to pay a fee as a prerequisite to release on bail because the policy
furthered “the government’s interest in conserving scarce resources” and in
“maintaining cost-effective procedures.” Id. at 656-57.
The county’s interest in upfront collection—the current policy—stems from the
increased likelihood that the county will be able to collect this statutorily authorized
fee. Prompt collection from an arrested person ensures the county can secure the
funds as contemplated under Minnesota law because the county can take the money
from an arrestee’s available cash. As the Sixth Circuit recognized in Sickles, waiting
until release would allow the detained arrestee to exhaust the funds in his or her
commissary account prior to conviction. 501 F.3d at 731. Common sense dictates
that waiting until after conviction similarly would decrease the certainty of collection.
-8-

Appellate Case: 14-3164

Page: 8

Date Filed: 05/04/2016 Entry ID: 4395230

In addition, although little or no discernable collection costs are associated with the
current system, the county would inevitably incur costs in post-conviction attempts
to collect this modest fee. Such costs would frustrate the purpose of collecting the fee
as a means to defray the expenses associated with booking. In weighing the public
interest, we must be cognizant of these realities. Cf. Mathews, 424 U.S. at 347 (noting
that convenience, efficiency, and administrative cost are appropriate considerations
in determining what kind of hearing is necessary). We conclude that the county’s
interest in upfront collection of this fee weighs more heavily than the relatively
modest private interests of the arrestees.3
Our Mathews inquiry does not end with the balancing of the private and state
interests at stake, however. We also must consider “the likelihood of an erroneous
deprivation of the private interest involved as a consequence of the procedures used.”
Mackey v. Montrym, 443 U.S. 1, 13 (1979). In assessing this factor, we are mindful
of the fact that “[t]he Due Process Clause simply does not mandate that all
governmental decisionmaking comply with standards that assure perfect, error-free
determinations.” Id. Although a pre-deprivation hearing offers “the best means of
ascertaining truth and minimizing the risk of error,” the Supreme Court has recognized
3

Although we could conceive of a situation in which the county’s interest might
be minimal, the appellants here did not seek any discovery related to the county’s
interest in the current system. And they do not argue now that judgment on the
pleadings was improper because genuine issues of fact remained regarding that
interest. Instead, in their appeal, they rely on the pleadings and documents
encompassed by them, and they contend that these documents alone make clear that
the county violates due process. Because it “is not our task . . . to scour the record in
search of a genuine issue of triable fact,” we limit our analysis to the argument
presented. See Brasic v. Heinemann’s Inc., 121 F.3d 281, 285 (7th Cir. 1997); cf.
Greer v. United States, 207 F.3d 322, 326 (6th Cir. 2000) (noting that “cross motions
for summary judgment do authorize the court to assume that there is no evidence
which needs to be considered other than that which has been filed by the parties”)
(quoting Harrison Western Corp. v. Gulf Oil Co., 662 F.2d 690, 692 (10th Cir. 1981)).
-9-

Appellate Case: 14-3164

Page: 9

Date Filed: 05/04/2016 Entry ID: 4395230

the “‘ordinary principle’ . . . that ‘something less than an evidentiary hearing’ [may
be] sufficient prior to adverse administrative action.” Id. (quoting Dixon v. Love, 431
U.S. 105, 113 (1977)).
With this principle in mind, we begin our analysis of this factor with the
county’s criteria for upfront collection. Before Ramsey County collects the $25 fee,
an individual must be arrested and detained at the county detention facility. Arrest,
as our court often has recognized, requires probable cause to support the belief that
an arrestee has committed or was committing a crime. Kuehl v. Burtis, 173 F.3d 646,
649-50 (8th Cir. 1999); Markadonatos v. Vill. of Woodridge, 760 F.3d 545, 553 (7th
Cir. 2014) (en banc) (Easterbrook, J., concurring). Of course, upfront collection based
on probable cause necessarily means that the county will collect $25 from some
arrestees who ultimately are not convicted. To alleviate this problem, Ramsey County
has in place a post-deprivation process through which eligible arrestees can recoup the
$25 booking fee.
Pursuant to Ramsey County policy, all inmates charged a booking fee must
receive a “Booking Fee Refund Form” upon release from the county detention facility.
Generally, submission of the form is the only prerequisite to receiving a refund once
an individual has been acquitted or has had his charges dismissed.4 The policy requires
the county to mail the refund to all eligible applicants within thirty days of the form’s
receipt. In addition, as the district court recognized and as the court found significant
in Sickles, the jail’s grievance procedure also is available to the county inmates. The
grievance procedure provides a mechanism through which inmates may challenge any
unfair treatment, including alleged wrongful deductions. See Sickles, 501 F.3d at 731
(noting the availability of the jail’s internal grievance procedures); see also Tillman
4

If an applicant attempts to recoup the fee based on his contention that he will
not be charged in the future, he also must submit documentation from the arresting
agency supporting this contention. This requirement did not apply to either Mickelson
or Statham. Mickelson pleaded guilty, and Statham’s charges were dismissed.
-10-

Appellate Case: 14-3164

Page: 10

Date Filed: 05/04/2016 Entry ID: 4395230

v. Lebanon Cty. Corr. Facility, 221 F.3d 410, 422 (3d Cir. 2000) (upholding against
a due process challenge a county’s collection of fees for housing costs during the
period of incarceration, finding that the plaintiff “had an adequate postdeprivation
remedy in the grievance program”).
As written, this policy allows for the correction of any errors inherent in the
overinclusive system of upfront collection. If all deprived arrestees who are not
convicted can recoup their $25 simply by sending in a form, the risk of error is
minimal, limited only to the possibility that some arrestees temporarily will lose the
use of $25. We do not discern any constitutionally significant value in the appellants’
proposed alternative—delaying collection until after conviction—that would outweigh
the state’s valid interest in upfront collection of the fee. Cf. Mathews, 424 U.S. at 331
(“A claim to a predeprivation hearing as a matter of constitutional right rests on the
proposition that full relief cannot be obtained at a postdeprivation hearing.”).
Although Mickelson and Statham correctly note that the current system places the
onus on the deprived arrestee to complete and submit a refund form before the county
returns the booking fee, the appellants’ complaint contains no allegation that this
facially minor imposition is so cumbersome as to undermine the constitutional
adequacy of this post-deprivation refund process. Cf. Gates v. City of Chicago, 623
F.3d 389, 412 (7th Cir. 2010) (finding a fact issue where the plaintiffs testified that
the city would not release confiscated cash even if the plaintiff had a court order).
And absent such allegations, we view this process as consistent with the vouchersubmission system, approved by the Second Circuit, through which arrestees retrieve
their confiscated property in New York City. See Butler v. Castro, 896 F.2d 698, 699,
702 (2nd Cir. 1990); see also City of W. Covina v. Perkins, 525 U.S. 234, 238 (1999)
(discussing California’s system for return of seized property).
The appellants rely heavily on the Seventh Circuit’s fractured en banc decision
in Markadonatos v. Village of Woodbridge to argue that the county’s system of
collecting the booking fee upfront cannot pass constitutional muster. 760 F.3d 545.
-11-

Appellate Case: 14-3164

Page: 11

Date Filed: 05/04/2016 Entry ID: 4395230

There, seven of ten judges indicated that an Illinois city’s policy of collecting a $30
fee automatically from all arrested persons, even those who were falsely arrested,
posed, at the very least, “a serious constitutional issue.” Id. at 546 (Posner, J.,
concurring); see also id. at 567 (Hamilton, J., dissenting). Critically, however, the city
in Markadonatos provided no post-deprivation remedy through which arrestees could
receive a refund. Instead, “[t]he deprivations occurred at the time of arrest,
immediately and finally,” and the system “allowed no room for dispute or review of
any kind.” Id. at 567. The policy thus imposed a permanent deprivation based solely
“on the unreviewable decision of one police officer.” Id. Significantly, the appellant
in Markadonatos suggested that the city’s collection policy would pass constitutional
muster if the city afforded a post-deprivation procedure “by which those who are
wrongfully arrested, never charged, or are found not guilty may obtain a refund.” Id.
at 557. Such a system is present in the case before us.
With the Sickles and Markadonatos decisions in mind, we conclude that
Mickelson and Statham did not plead facts sufficient to establish that Ramsey
County’s booking-fee policy fails to pass constitutional muster simply because it
provides a post-deprivation remedy instead of a pre-deprivation hearing. The county
has in place a coordinated refund process, and the modest private interest at stake does
not approach those interests found to warrant a full-fledged pre-deprivation hearing.
See Sickles, 501 F.3d at 730. The district court thus correctly concluded that the
county’s interest in ensuring it can collect the statutorily authorized fee outweighs the
minimal paperwork and temporary deprivation imposed on wrongfully deprived
arrestees. Cf. Craft, 436 U.S. at 19 (holding that a prior hearing is not required “where
the potential length or severity of the deprivation does not indicate a likelihood of
serious loss and where the procedures . . . are sufficiently reliable to minimize the risk
of erroneous determination”). Accordingly, we conclude that the Mathews factors
show that a pre-deprivation hearing is not required and that a post-deprivation remedy
may suffice.

-12-

Appellate Case: 14-3164

Page: 12

Date Filed: 05/04/2016 Entry ID: 4395230

Notwithstanding Mathews and the decisions of our sister circuits, Mickelson
and Statham argue on appeal that only a pre-deprivation hearing can satisfy due
process. They cite Walters v. Wolf, 660 F.3d 307 (8th Cir. 2011), to argue that such
process is due whenever a deprivation occurs pursuant to an established state policy.
As an initial matter, this broad assertion appears inconsistent with the Supreme
Court’s holding in Mathews that “something less than an evidentiary hearing” may be
“sufficient prior to adverse . . . action,” even when the deprivation imposes a
“significant” hardship. 424 U.S. at 342-43. Indeed, the appellants’ assertion conflicts
with the “usual rule” that “[w]here only property rights are involved, mere
postponement of the judicial enquiry is not a denial of due process, if the opportunity
given for ultimate judicial determination of liability is adequate.” Mitchell v. W. T.
Grant Co., 416 U.S. 600, 611 (1974) (alteration in original) (quoting Phillips v.
Comm’r, 283 U.S. 589, 596-97 (1931)); Ewing v. Mytinger & Casselberry, 339 U.S.
594, 599 (1950) (“It is sufficient, where only property rights are concerned, that there
is at some stage an opportunity for a hearing and a judicial determination.”).
In Walters, we stated that the district court erred when it determined that the
availability of a post-deprivation action in replevin was fatal to a plaintiff’s due
process claim, a claim challenging a city’s policy of retaining a handgun and
ammunition confiscated from an arrestee. 660 F.3d at 313. However, our holding
turned on the inherently “lengthy and speculative” nature of the post-deprivation
remedy available—an action in tort. Id. at 313-14 (quoting Logan v. Zimmerman
Brush Co., 455 U.S. 422, 436-37 (1982), to discuss the problems associated with
redress through tort). Our court since has suggested that post-deprivation
administrative remedies are innately distinguishable. See Hopkins v. City of
Bloomington, 774 F.3d 490, 492-93 (8th Cir. 2014). This reading is consistent with
the fact that our decision in Walters made much of the city’s failure to afford any
independent administrative process through which an arrestee could contest the city’s
retention of his property, even after the dismissal of charges. 660 F.3d at 314-15.

-13-

Appellate Case: 14-3164

Page: 13

Date Filed: 05/04/2016 Entry ID: 4395230

We do not read Walters to foreclose the possibility that an adequate postdeprivation process may satisfy the Fourteenth Amendment in a case such as this one.
Indeed, Walters cited several Supreme Court cases explaining that post-deprivation
process may suffice, even when the deprivation occurs pursuant to established state
policy. Id. at 313-14 (citing Zinermon v. Burch, 494 U.S. 113, 132 (1990), and Logan,
455 U.S. at 436, two cases that assert a post-deprivation hearing is inadequate only in
the absence of the necessity of quick action by the state or the impracticality of
providing any predeprivation process). As relevant here, the Supreme Court has held
that post-deprivation process suffices if the Government has an interest in collecting
owed funds. In tax cases, for example, the Supreme Court has not required a
pre-deprivation hearing. See Laing v. United States, 423 U.S. 161, 186 (1976)
(Brennan, J., concurring); Phillips, 283 U.S. at 595-601. This is so because
“[a]llowing taxpayers to litigate their tax liabilities prior to payment might threaten
a government’s financial security . . . by making the ultimate collection of validly
imposed taxes more difficult.” McKesson Corp. v. Div. of Alcoholic Beverages &
Tobacco, Dep’t of Bus. Regulation of Florida, 496 U.S. 18, 37 (1990). Similarly, the
Court has found post-deprivation procedures sufficient when the Government seeks
to ensure that property subject to valid forfeiture will not be “removed to another
jurisdiction, destroyed, or concealed.” Calero-Toledo v. Pearson Yacht Leasing Co.,
416 U.S. 663, 679 (1974).
Several courts have applied the logic of these cases to uphold the collection of
jail fees from an inmate without pre-deprivation process. See, e.g., Tillman, 221 F.3d
at 421 n.12 (citing Logan, 455 U.S. at 436); Sickles, 501 F.3d at 731 (citing
Calero-Toledo, 416 U.S. at 679). And several of our sister circuits, while not
expressly citing this line of cases, also have upheld the automatic collection of
comparable fees against procedural due process challenges when adequate postdeprivation relief is available. See, e.g., Slade, 407 F.3d at 253 (rejecting, in dicta, a
procedural due process challenge to a jail’s practice of charging pretrial detainees one
dollar per day where inmates adjudicated not guilty on all charges were entitled to a
-14-

Appellate Case: 14-3164

Page: 14

Date Filed: 05/04/2016 Entry ID: 4395230

refund); Enlow v. Tishomingo Cty., 45 F.3d 885, 889 (5th Cir. 1995) (adopting the
analysis of Enlow v. Tishomingo Cty., No. CIV. A. EC 89-61-D-D, 1990 WL 366913,
at *5-*6 (N.D. Miss. Nov. 27, 1990), and upholding imposition of a $60 bond fee
against a procedural due process challenge where the money was returned if the
defendant was found not guilty at a subsequent hearing or trial). Our holding in
Walters does not prevent us from reaching a similar conclusion regarding the booking
fee at issue here. We reject the appellants’ contention that post-deprivation process
simply cannot suffice.
Of course, for the specific post-deprivation remedy in place to satisfy due
process, the remedy must be adequate. See Mitchell, 416 U.S. at 611. In this vein, we
note that it is conceivable that future plaintiffs could claim that Ramsey County runs
afoul of the Fourteenth Amendment if and when it does not follow its policy as
written. However, the appellants fell short of raising that contention before the district
court and on appeal.5 Although the appellants pointed out some potential issues with
the efficacy of the current system in their brief to our court, they raised this issue not
as an independent basis for relief but rather to “illustrate[] why the Constitution
requires pre-deprivation process.” The appellants thus failed to raise the argument on
appeal that the county must change or improve its post-deprivation procedure in order
to comply with the due process requirement that the remedy be adequate. In the
absence of that argument, we cannot and do not consider the issue here. See Lind v.
Midland Funding, L.L.C., 688 F.3d 402, 408 n.6 (8th Cir. 2012) (limiting the due
process analysis to the question whether a pre-deprivation hearing was required
5

The closest the appellants came to making such an allegation is found in a
paragraph of their complaint that states that a pretrial detainee is not informed about
the refund process when he or she “is brought to the Ramsey County detention
facility.” This allegation is not inconsistent with the Ramsey County policy of
informing detainees upon release. Moreover, the appellants failed to develop in their
brief any argument that the county’s post-deprivation remedy is inadequate based on
the county’s failure to inform arrestees of the available process. Absent this argument,
we will not sua sponte consider the question here. See Brasic, 121 F.3d at 285.
-15-

Appellate Case: 14-3164

Page: 15

Date Filed: 05/04/2016 Entry ID: 4395230

because the appellants assumed no post-deprivation remedy could suffice and
therefore did not challenge the adequacy of the post-deprivation remedy).
Significantly, neither Mickelson nor Statham alleged in their complaint that
they submitted the Booking Fee Refund Form or engaged the jail grievance procedure.
Indeed, Mickelson was statutorily ineligible for a refund because he pleaded guilty to
his charges. See Minn. Stat. § 641.12, subdiv. 1. And Statham, though eligible, did
not allege in the complaint that he applied for return of his funds using the Booking
Fee Refund Form or the jail grievance procedure, nor did he attach any documents to
his complaint to demonstrate such action. Absent his exhaustion of the available
process, we cannot know whether the current system would fail to yield a return of
Statham’s $25. Thus, any allegation that the current system is inadequate as a postdeprivation procedure is not properly before the court. We follow our course in
Hopkins v. City of Bloomington and refrain from attempting to examine the adequacy
of a post-deprivation administrative remedy where the appellants have not alleged that
they pursued it prior to bringing a § 1983 suit. 774 F.3d at 492-93; accord Sickles,
501 F.3d at 731, 732-33 (“[W]e save the resolution of this ‘premature’ dispute for
another day . . .when ‘an administrative decision has been formalized and its effects
felt in a concrete way by the challenging parties.” (emphasis added) (quoting Abbott
Labs. v. Gardner, 387 U.S. 136, 148-49 (1967))).
In sum, in view of the modest private interests at stake, the substantial state
interests in the current withholding system, and the appellants’ failure to complete the
existing refund process and demonstrate its alleged inadequacies, we conclude that
Mickelson and Statham have not stated a plausible claim that the booking fee posed
a violation of constitutional rights that is actionable under 42 U.S.C. § 1983. We thus
affirm the district court’s judgment on the pleadings.

-16-

Appellate Case: 14-3164

Page: 16

Date Filed: 05/04/2016 Entry ID: 4395230

B.
Mickelson and Statham also contend that the district court erred by granting the
defendants’ motion for judgment on the pleadings regarding the constitutionality of
the prepaid debit-card scheme. Ramsey County instituted the debit-card policy to
avoid having employees hold on hand, guard, regularly access, and track large sums
of cash from numerous inmates. Mickelson and Statham argue that this scheme
violates both procedural and substantive due process.
As discussed in the previous section, an individual must have a constitutionally
protected interest in life, liberty, or property in order for the protections of procedural
due process to attach. Singleton v. Cecil, 176 F.3d 419, 424 (8th Cir. 1999) (en banc)
(noting that “[t]he possession of a protected life, liberty, or property interest is . . . a
condition precedent to any due process claim”) (alteration in original) (quoting
Movers Warehouse, Inc. v. City of Little Canada, 71 F.3d 716, 718 (8th Cir. 1995)).
Protected property interests range from welfare—“the very means by which to live,”
Goldberg v. Kelly, 397 U.S. 254, 264 (1970)—to an individual’s personal items, such
as a handgun and ammunition, Walters, 660 F.3d at 311. Due process protections,
however, do not attach to all property. Instead, there exists “a de minimis level of
imposition with which the Constitution is not concerned.” Smith v. Copeland, 87 F.3d
265, 268 (8th Cir. 1996) (quoting Bell v. Wolfish, 441 U.S. 520, 539 n.21 (1979)).
“Only if we find a protected interest do we examine whether the deprivation of the
protected interest was done in accordance with due process.” Forrester v. Bass, 397
F.3d 1047, 1054 (8th Cir. 2005). Absent a protected interest, a procedural due process
challenge must fail. Id.
Here, the appellants failed to establish a constitutionally cognizable interest
related to the debit-card scheme that is sufficient to trigger the protections of due
process. Mickelson and Statham argue that the county deprived them of their interest
in cash by converting the funds into a fee-laden debit card, and they contend that such
-17-

Appellate Case: 14-3164

Page: 17

Date Filed: 05/04/2016 Entry ID: 4395230

a scheme violates the constitutional rights of arrestees. However, as opposed to
depriving the appellants of the “very means by which to live,” Goldberg, 397 U.S. at
264, the prepaid debit cards make the inmates’ funds immediately available and usable
at local stores and ATMs. This benefit was not available under the county’s previous
system of issuing checks to released arrestees because banks had to verify the checks
with the county before honoring them. We acknowledge that the debit cards are not
equivalent to cash in that they are not perfectly fungible, and arrestees can use them
only at vendors equipped with card-reader technology. However, we conclude that
the distinctions between cash and the cards are not constitutionally significant such
that they trigger due process protections.
According to the fee schedule provided to each inmate, fees may be avoided by
the vast majority of, and perhaps all, arrestees. The card starts to incur a weekly
maintenance fee of $1.50 only if an inmate has not spent the funds on the debit cards
within thirty-six hours. If the arrestee spends the funds during this initial window, the
card does not incur the fee. Likewise, the debit-card website advises that cardholders
may “remove [the] entire card balance for no charge by visiting any financial
institution that is a MasterCard principal member and asking for a cash advance for
the balance on the card.” If the inmate instead converts the debit card back into cash
using an ATM, only a one-time ATM fee of $2.75 automatically applies.6 Such a
minimal imposition does not trigger constitutional due process protection. The D.C.
Circuit explained almost thirty years ago that “matters involving a few dollars or less”
do not trigger due process. Gray Panthers v. Schweiker, 652 F.2d 146, 156 n.19 (D.C.
Cir. 1980). Several other courts have issued consistent decisions. See, e.g., Moncla
v. Kelley, 430 F. App’x 714, 718 (10th Cir. 2011) (unpublished) (finding de minimis
6

The debit card materials indicate that the local ATM provider may charge a
separate fee for withdrawal. However, the debit card’s customer service website
provides a link to a map of surcharge-free ATMs and alternatively advises that
selecting the “cash back” option at certain vendors will allow cardholders to obtain
cash for no additional charge.
-18-

Appellate Case: 14-3164

Page: 18

Date Filed: 05/04/2016 Entry ID: 4395230

any lost interest on $20 that had been temporarily withheld); Kennedy v. City of
Cincinnati, 595 F.3d 327 (6th Cir. 2010) (holding that an individual’s property interest
in a $10 pool pass was de minimis); Northern v. Nelson, 448 F.2d 1266, 1267 (9th Cir.
1971) (finding a claim for damages of $1.05 was properly dismissed as de minimis);
cf. Schilb v. Kuebel, 404 U.S. 357, 365 (1971) (stating that a $7.50 bail fee imposed
on an equally vulnerable population “smacks of administrative detail” and is “hardly
to be classified as a ‘fundamental’ right”).
Our precedent is also consistent. Although we have observed that the Due
Process Clause “sets no minimum threshold value for which protection begins,”our
court, prior to carrying out a due process analysis, has ensured that the interests at
stake “manifestly equal[] or exceed[] those recognized as deserving of Fourteenth
Amendment protection.” Gentry v. City of Lee’s Summit, 10 F.3d 1340, 1344 (8th Cir.
1993); accord Woods v. City of Michigan City, 940 F.2d 275, 284 (7th Cir. 1991)
(“The due process clause does not mandate procedure for its own sake.”). Judged by
this standard, the appellants’ interest in cash rather than cards with the avoidable,
minimal fees falls short. The potential deprivation is de minimis. And we see no need
to “constitutionaliz[e] . . . [these] government procedures” to impose the “additional
cost in terms of money and administrative burden” that the appellants’ requested
process would require. Mathews, 424 U.S. at 347; cf. Dahlia v. Rodriguez, 735 F.3d
1060, 1092 (9th Cir. 2013) (O’Scannlain, J., concurring) (cautioning that a court must
not “stretch the Constitution to match [its] sense of justice,” lest it exceed the judicial
power vested in it by Article III). We are careful to note, however, that we do not
foreclose the possibility of a challenge to any future scheme in which fees are
triggered by any and all uses or in which fees are greater than those at issue here.
This is, after all, a highly fact-intensive inquiry. Our decision here is premised solely
on the combination of the fees being both avoidable and minor. Under these
circumstances, they are de minimus.

-19-

Appellate Case: 14-3164

Page: 19

Date Filed: 05/04/2016 Entry ID: 4395230

In any event, we see no dispute of fact that a pre-deprivation or post-deprivation
hearing would resolve. The criteria for conversion of cash to a debit card are arrest
and temporary detention, and neither Mickelson nor Statham contests the fact that they
were lawfully arrested or detained. When a plaintiff identifies no dispute that a
hearing could resolve, he has no viable basis for demanding more process. See Codd
v. Velger, 429 U.S. 624 (1977). “The due process clause does not mandate procedure
for its own sake.” Woods, 940 F.2d at 284. We thus reject the appellants’ challenge
to the district court’s decision on this procedural due process claim.
In this appeal, Mickelson and Statham also contend that the debit-card scheme
violates substantive due process. We conclude that this claim is not properly before
our court. When a party fails to argue a claim before the district court, we consider
that claim abandoned such that we need not examine it on appeal. Demien Const. Co.
v. O’Fallon Fire Prot. Dist., 812 F.3d 654, 657 (8th Cir. 2016). As the district court
observed, Mickelson and Statham’s arguments in their motion for judgment on the
pleadings addressed procedural due process. Mickelson and Statham expressly
disavowed any substantive due process challenge in their memorandum in opposition
to the defendants’ motions for judgment on the pleadings. They stated: “Plaintiffs
concede that their Equal Protection claim is subject to dismissal. They would be
willing to so stipulate if necessary. In addition, Plaintiffs are alleging that Defendants
violated their procedural due process rights, not their substantive due process rights.”
In light of this affirmative disavowal, we will not consider the issue here.7 See Stone
v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).8
7

The appellants contend that procedural and substantive due process arguments
are inextricably intertwined such that a court must consider both on appeal. We
disagree. Our court previously has found that a party waived a substantive due
process claim even when our court entertained a procedural due process appeal. See
Hartman v. Workman, 476 F.3d 633, 634-35 (8th Cir. 2007).
8

Because we uphold the district court’s determination that no constitutional
violation occurred, we need not reach the question whether KCN, FCB, and Outpay
-20-

Appellate Case: 14-3164

Page: 20

Date Filed: 05/04/2016 Entry ID: 4395230

III.
For the foregoing reasons, we affirm.
______________________________

are liable as state actors. Cf. Jenn-Ching Luo v. Baldwin Union Free Sch. Dist., 556
F. App’x 1, 2 (2d Cir. 2013) (unpublished) (“Because the lack of [a] . . . violation in
this case justifies upholding the district court’s decisions, we need not reach the
question[] of whether . . . [the defendant] acted under color of state law.”).
-21-

Appellate Case: 14-3164

Page: 21

Date Filed: 05/04/2016 Entry ID: 4395230