Calvin Slade v. HAMPTON ROADS REGIONAL JAIL, No. 04-6481 Defendant-Appellee

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 CALVIN SLADE,
Plaintiff-Appellant,
v.
HAMPTON ROADS REGIONAL JAIL, No. 04-6481 Defendant-Appellee,
and
COMMONWEALTH OF VIRGINIA,
Intervenor. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca Beach Smith, District Judge.
(CA-04-55-2)
Argued: February 4, 2005
Decided: May 9, 2005
Before WILKINSON and WILLIAMS, Circuit Judges,
and Henry F. FLOYD, United States District Judge
for the District of South Carolina,
sitting by designation.
Affirmed by published opinion. Judge Williams wrote the opinion, in
which Judge Wilkinson and Judge Floyd joined.
COUNSEL
ARGUED: Joshua Neal Auerbach, PUBLIC JUSTICE CENTER,
Baltimore, Maryland, for Appellant. Samuel Lawrence Dumville,

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NORRIS & ST. CLAIR, P.C., Virginia Beach, Virginia, for Appellee.
Joel Christopher Hoppe, Assistant Attorney General, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Intervenor. ON BRIEF: Wendy N. Hess, PUBLIC JUSTICE
CENTER, Baltimore, Maryland, for Appellant. Kent K. Stanley,
NORRIS & ST. CLAIR, P.C., Virginia Beach, Virginia, for Appellee.
Jerry W. Kilgore, Attorney General of Virginia, William E. Thro,
State Solicitor General, Maureen Riley Matsen, Deputy State Solicitor
General, Richmond, Virginia, for Intervenor.
OPINION
WILLIAMS, Circuit Judge:
Calvin Slade, a pretrial detainee at the Hampton Roads Regional
Jail (the Jail) in Virginia,1 appeals the dismissal of his 42 U.S.C.A.
§ 1983 (West 2000) complaint. On appeal, Slade asserts that the Jail’s
policy of charging a pretrial detainee one dollar per day to help defray
his cost of housing violates the Due Process Clause of the Fourteenth
Amendment, as well as the Takings Clause of the Fifth Amendment
as incorporated by the Fourteenth Amendment. Because the charge
does not amount to punishment, however, we hold that it does not
violate Slade’s due process liberty right to be free from punishment
before conviction. We also conclude that Slade failed to plead viola-
tions of either the Procedural Due Process Clause or the Takings
Clause.
I.
Slade was a pretrial detainee being held at the Jail when, on Janu-
ary 23, 2004, he filed a pro se "motion" in the United States District
Court for the Eastern District of Virginia challenging the Jail’s prac-
tice of charging him one dollar per day from his inmate account dur-
ing his detention. The Jail’s practice, which began in November 2003,
is authorized by Va. Code § 53.1-131.3, which provides, in full:
1The Commonwealth of Virginia, as amici, entered an appearance on
appeal to defend the constitutionality of the statute at issue. For sake of
clarity, we will refer to the appellees as "the Jail."
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Any sheriff or jail superintendent may establish a program
to charge inmates a reasonable fee, not to exceed $1 per day,
to defray the costs associated with the prisoners’ keep. The
Board [of Corrections] shall develop a model plan and adopt
regulations for such program, and shall provide assistance,
if requested, to the sheriff or jail superintendent in the
implementation of such program. Such funds shall be
retained in the locality where the funds were collected and
shall be used for general jail purposes.
Va. Code Ann. § 53.1-131.3 (Michie Supp. 2003).
Pursuant to this statutory authority, the Board of Corrections devel-
oped a Model Plan to implement § 53.1-131.3 and assess the one dol-
lar per day charge, and the Jail adopted the Model Plan as its official
policy for collecting the fee. Under the Jail’s policy, an inmate is
informed of the charge upon his arrival at the Jail and asked to sign
a form indicating that the charge was explained to him. The charge
is then assessed daily from an inmates’ account. An inmate account
is an account that the Jail permits inmates to maintain in order to pur-
chase commissary items and pay for medical co-payments. If an
inmate has no funds in his account, the account is debited until funds
become available. If an inmate is released, transferred, or paroled
with a negative account balance, that balance will be applied to the
inmate’s new account if he is incarcerated at the Jail in the future but
will not result in a judgment lien against the inmate.
The fees that are collected from the one dollar charge are held in
a separate revenue account to be used for general jail purposes. The
Jail’s policy also provides that inmates who are adjudicated "not
guilty" on all charges are entitled to a refund of the fee if, within 60
days, they make such a request in writing. Refunds are not eligible to
those detainees who are found guilty, or whose charges are nolle
prossed or dismissed.
Slade’s pro se complaint alleged that the fee "violat[ed] inmates
[sic] 14th Amendment Constitutional rights . . . to be treated equally,
(equal treatment), and equal protection of the law." (J.A. at 4.) Slade
also complained that "those inmates awaiting to go to trial [like him]
should not be punished (8th Amendment) or treated differently than
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other state of Virginia inmates." (J.A. at 5.) Slade concluded his com-
plaint by noting that "[t]he law must not be arbitrary, capricious, or
contradictory." (J.A. at 5.) Slade requested injunctive relief, and also
requested that the district court reimburse Slade and the other inmates
who were paying the charge.
On February 20, 2004, the district court, sua sponte, dismissed
Slade’s complaint under 28 U.S.C.A. § 1915A (West Supp. 2004).2
See Slade v. Hampton Roads Regional Jail, 303 F.Supp.2d 779
(E.D.Va. 2004). The district court construed Slade’s complaint as
raising two claims: one under the Equal Protection Clause of the
Fourteenth Amendment and one under the substantive Due Process
Clause of the Fourteenth Amendment.3 The district court dismissed
2That section of the Prison Litigation Reform Act provides in pertinent
part:
(a) Screening. — The court shall review, before docketing, if
feasible or, in any event, as soon as practicable after docketing,
a complaint in a civil action in which a prisoner seeks redress
from a governmental entity or officer or employee of a govern-
mental entity.
(b) Grounds for dismissal.—On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint—
(1) is frivolous, malicious, or fails to state a claim upon which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
28 U.S.C.A. § 1915A (West Supp. 2004)
3Although Slade’s complaint stated that he was being punished in vio-
lation of the Eighth Amendment, because Slade was a pretrial detainee
and not a convicted prisoner, the district court properly determined that
Slade’s complaint should be analyzed under the Due Process Clause of
the Fourteenth Amendment. City of Revere v. Massachusetts General
Hosp., 463 U.S. 239, 244 (1983). Slade cited to the incorrect constitu-
tional amendment in his complaint, but that does not indicate that his
complaint failed to plead a claim that the charge is punishment. In Peters
v. Jenney, 327 F.3d 307 (4th Cir. 2003), we held that a plaintiff who
"pleaded the factual predicate for her First Amendment claim" but cited
to the Fourteenth Amendment for that right had raised a First Amend-
ment claim. Id. at 322. Accordingly, Slade’s erroneous citation to the
Eighth Amendment does not mean he failed to raise a Due Process claim
against punishment.
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the Equal Protection claim, reasoning "the Virginia statute does not
violate equal protection because it applies to all inmates in local and
regional jails. The mere fact that not all jails have, as yet, imple-
mented the ‘Prisoner’s Keep’ provision, does not create an equal pro-
tection violation with respect to plaintiff." (J.A. at 16.) The district
court also dismissed the due process claim, because "a $1.00 a day fee
for the purpose of defraying jail costs is not ‘punishment’ within the
meaning of the Fourteenth Amendment." (J.A. at 16.) Slade filed a
timely pro se appeal, and we have jurisdiction pursuant to 28
U.S.C.A. § 1291 (West 1993).
II.
We apply de novo review a § 1915A dismissal for failure to state
a claim. See Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002).
Courts should not dismiss a complaint for failure to state a claim
unless "after accepting all well-pleaded allegations in the plaintiff’s
complaint as true and drawing all reasonable factual inferences from
those facts in the plaintiff’s favor, it appears certain that the plaintiff
cannot prove any set of facts in support of his claim entitling him to
relief." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.
1999). "Moreover, when such a dismissal involves a civil rights com-
plaint, ‘we must be especially solicitous of the wrongs alleged’ and
‘must not dismiss the complaint unless it appears to a certainty that
the plaintiff would not be entitled to relief under any legal theory
which might plausibly be suggested by the facts alleged.’" Veney, 293
F.3d at 730 (quoting Harrison v. United States Postal Serv., 840 F.2d
1149, 1152 (4th Cir. 1988)).
On appeal, Slade has abandoned his Equal Protection claim.
Instead, Slade now contends (1) that the charge is unconstitutional
because it amounts to the punishment of pretrial detainees; (2) that the
charge is unconstitutional because there are no procedures given
before the charge is imposed; and (3) that the charge is an impermissi-
ble taking of property without just compensation. Before we turn to
the merits, however, we briefly must address whether Slade’s claim
is moot.
III. Mootness
"[A] case is moot when the issues presented are no longer ‘live’ or
the parties lack a legally cognizable interest in the outcome." Powell
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v. McCormack, 395 U.S. 486, 496 (1969). By way of supplemental
authority, the Jail informed the panel that Slade was released from
pretrial detention in July 2004. Accordingly, it urges us to hold that
his claim is no longer a "live" controversy. Slade’s complaint, how-
ever, requested both injunctive and monetary relief. The request for
monetary relief is not moot even though Slade has been released from
Jail because Slade retains a "legally cognizable interest" in the out-
come of the case, i.e., the return of money the Jail deducted from his
inmate account. Cf. Mellen v. Bunting, 327 F.3d 355, 365 (4th Cir.
2003) (holding that students’ claim for damages was not moot even
though students had graduated during the pendency of the appeal).
Slade’s claim for injunctive relief, however, is moot because he is
no longer in pretrial detention. Slade seeks to avoid this conclusion
by urging that his case is one that is "capable of repetition yet evading
review." The Supreme Court has explained that, "in the absence of a
class action, the ‘capable of repetition, yet evading review’ doctrine
[is] limited to the situation where two elements combined: (1) the
challenged action was in its duration too short to be fully litigated
prior to its cessation or expiration, and (2) there was a reasonable
expectation that the same complaining party would be subjected to the
same action again." Weinstein v. Bradford, 423 U.S. 147, 149 (1975)
(per curiam). In cases involving pretrial detention, the first inquiry is
easily answered in Slade’s favor. "Pretrial detention is by nature tem-
porary, and it is most unlikely that any given individual could have
his constitutional claim decided on appeal before he is either released
or convicted." Gerstein v. Pugh, 420 U.S. 103, 111 n. 11 (1975).
Slade’s claim therefore evades review.
Thus, our mootness inquiry into Slade’s injunctive relief claim
hinges on whether there is a reasonable expectation that Slade will be
subject to the same action in the future. "[This] standard is not ‘math-
ematically precise’ and requires only a ‘reasonable likelihood’ of rep-
etition." Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002) (quoting
Honig v. Doe, 484 U.S. 305, 318-19 (1988)). In Spencer v. Kemna,
523 U.S. 1 (1998), the Supreme Court held that a challenge to parole
revocation proceedings was moot because the plaintiff was no longer
on parole. Id. at 14-16. In so finding, the Court rejected the possible
risk of future apprehension and conviction as meeting the "capable of
repetition" prong. The Court noted, "we are . . . unable to conclude
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that the case-or-controversy requirement is satisfied by general asser-
tions or inferences that in the course of their activities respondents
will be prosecuted for violating valid criminal laws. We assume that
respondents will conduct their activities within the law." Id. at 15. See
also Mitchell v. Dupnik, 75 F.3d 517, 528 (9th Cir. 1996) (finding
injunctive relief request against jail that housed a pretrial detainee was
moot once pretrial detainee was convicted and post-conviction relief
was denied).
Likewise, Slade will only find himself in pretrial detention at the
Jail in the future if he is arrested for violating Virginia’s criminal laws.4
Because we presume that Slade will abide by the criminal laws of
Virginia in the future, we do not believe there is a reasonable proba-
bility that he will return to the Jail as a pretrial detainee. Accordingly,
Slade’s claim for injunctive relief is moot.
IV. Substantive Due Process
Turning to the merits of the case, Slade’s first argument is that the
charge is punitive in nature and, as such, cannot be imposed against
pretrial detainees. As the district court correctly recognized, because
Slade is a pretrial detainee, not a prisoner, the protections afforded by
the Due Process Clause of the Fourteenth Amendment, and not those
afforded by the Eighth Amendment, apply. City of Revere v. Mass.
General Hosp., 463 U.S. 239, 244 (1983); see also Robles v. Prince
George’s County, 302 F.3d 262, 269 (4th Cir. 2002) ("As a pretrial
detainee, Robles’ treatment and the conditions of his restraint are
evaluated under the Due Process Clause of the Fourteenth Amend-
ment."). Although several states have laws permitting the recoupment
of some of the cost of housing prisoners5 and several courts have had
4We note that the Ninth Circuit has created an exception to the moot-
ness holding of Spencer v. Kemna, 523 U.S. 1 (1998) where the plaintiff
introduces evidence that he has been detained "on more than one occa-
sion." Demery v. Arpaio, 378 F.3d 1020, 1027 (9th Cir. 2004) (finding
a claim to enjoin jail officials from using web cameras to record pretrial
detainees was not moot because evidence showed "plaintiffs likely will
be reincarcerated at the Madison Street Jail"). Slade has presented no
such evidence and we therefore have no occasion to consider whether
such an exception would be appropriate.
5For instance, several states have statutes permitting a deduction from
a prisoner’s wages to recoup housing costs. See, e.g., Ariz.Rev.Stat.
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occasion to rule upon, and uphold, the constitutionality of room and
board fees for convicted prisoners,6 Slade’s case appears to be the first
case challenging the constitutionality of such practices as applied to
pretrial detainees.
As a starting point, Slade does not challenge Virginia’s right to
subject him to pretrial detention. Instead, Slade contends that the
charge for prisoners’ keep amounts to punishment before conviction.
"[T]he Government concededly may detain [a criminal defendant] to
ensure his presence at trial and may subject him to the restrictions and
conditions of the detention facility, so long as those conditions and
restrictions do not amount to punishment . . . . " Bell v. Wolfish, 441
U.S. 520, 536-37 (1979). "The due process rights of a pretrial
detainee are at least as great as the eighth amendment protections
available to the convicted prisoner; while the convicted prisoner is
entitled to protection only against punishment that is ‘cruel and
unusual,’ the pretrial detainee, who has yet to be adjudicated guilty
of any crime, may not be subjected to any form of ‘punishment.’"
Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988) (emphasis in
original). Although detainees have a right to be free from punishment,
clearly "not every inconvenience encountered during pretrial deten-
tion amounts to ‘punishment’ in the constitutional sense." Id. at 870.
This conclusion is axiomatic because pretrial detention itself "may
imperil the suspect’s job, interrupt his source of income, and impair
his family relationships." Gerstein, 420 U.S. at 114.
In determining whether the one dollar charge amounts to punish-
ment, Slade and the Jail disagree over our relevant legal standard.
Slade contends that under the Supreme Court’s decision in Austin v.
§ 41-1622, stat. note 3 (2003); Minn. Stat. § 243.23(2) (2003). Other
states have broader statutes that simply give authority to recoup the costs
of confinement. See, e.g., Fla. Stat. § 960.293(2) (2003); Iowa Code
§ 356.7(1) (2003).
6See, e.g., Tillman v. Lebanon County Correctional Facility, 221 F.3d
410, 417-24 (3d Cir. 2000) (upholding $10 per day housing fee); Chris-
tiansen v. Clarke, 147 F.3d 655, 657 (8th Cir. 1998) (upholding with-
drawal of $2,790 from inmate account to pay for cost of room and board
during work release program).
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United States, 509 U.S. 602 (1993), to find the charge unconstitu-
tional we need only find that the its purpose is "serving in part to pun-
ish." Id. at 610. The Jail contends that the proper standard is that
announced in Bell and adopted by our circuit in Martin and Hill v.
Nicodemus, 979 F.2d 987, 991 (4th Cir. 1992). Under this standard,
the detainee first must show the imposition of a particular "disability."
Bell, 441 U.S. at 538. Assuming that a disability or harm is shown,
then
[t]o establish that a particular condition or restriction of his
confinement is constitutionally impermissible "punishment,"
the pretrial detainee must show either that it was (1)
imposed with an expressed intent to punish or (2) not rea-
sonably related to a legitimate nonpunitive governmental
objective, in which case an intent to punish may be inferred.
Martin, 849 F.2d at 870.7
If there is no express intent to punish, our inquiry hinges on
whether "‘an alternative purpose to which [the act] may rationally be
connected is assignable for it’ and the action does not appear ‘exces-
sive in relation to the alternative purpose assigned.’" Robles, 302 F.3d
at 269 (quoting Bell, 441 U.S. at 538) (alteration in original).
We believe that Slade’s argument is misplaced and that Martin/Hill
continues to guide our inquiry. Austin addressed the question of
whether the Excessive Fines Clause of the Eighth Amendment could
apply to in rem civil forfeiture proceedings, 509 U.S. at 610, and does
not contain a single citation to Bell or any case involving the due pro-
cess rights of pretrial detainees. In addition, recent case law reviewing
conditions of pretrial detention and confinement still rely exclusively
on Bell. See, e.g., Demery, 378 F.3d at 1028 (applying two-part Bell
7Our standard is culled from the one announced by the Court in Bell.
The Court instructed lower courts to determine if a pretrial detainee was
punished by looking to whether there was an express intent to punish and
"whether an alternative purpose to which [the restriction] may rationally
be connected is assignable for it, and whether it appears excessive in
relation to the alternative purpose assigned [to it]." Bell, 441 U.S. at 538
(quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)).
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inquiry in finding that practice of placing web-cams in pretrial detain-
ees’ cells and holding area violated Due Process right to be free from
punishment); Broussard v. Parish of Orleans, 318 F.3d 644, 658-59
(5th Cir. 2003) (collecting cases).
Accordingly, absent an explicit indication to the contrary from the
Supreme Court, we will continue to apply Bell and Martin/Hill to
claims by pretrial detainees that certain conditions of confinement
amount to punishment. Thus, we must determine if the fee is a "dis-
ability." If we answer that question in the affirmative, we must ask
whether the fee’s express purpose is to punish, or whether "‘an alter-
native purpose to which [the act] may rationally be connected is
assignable for it’ and the action does not appear ‘excessive in relation
to the alternative purpose assigned.’" Robles, 302 F.3d at 269 (quot-
ing Bell, 441 U.S. at 538) (alteration in original). In conducting this
inquiry, we must "be mindful that these inquiries spring from consti-
tutional requirements and that judicial answers to them must reflect
that fact rather than a court’s idea of how best to operate a detention
facility." Bell, 441 U.S. at 539.
Although "[t]here is, of course, a de minimis level of imposition
with which the Constitution is not concerned," Ingraham v. Wright,
430 U.S. 651, 674 (1977), we need not decide whether the one dollar
per day charge is a "disability" because, regardless, we hold that the
charge is not punishment. Slade has not shown that the express pur-
pose of the one dollar per day charge is to punish or that it is not ratio-
nally related to an alternative legitimate governmental interest. In
fact, § 53.1-131.3 states that the purpose of the charge is to "defray
the costs associated with the prisoners’ keep," not to punish pretrial
detainees. Moreover, while the statute expresses no intent to punish
on its face, it asserts an alternative, legitimate governmental purpose
for the charge. To that end, funds generated by the charge are to "be
used for general jail purposes." Va. Code Ann. § 53.1-131.3. Under
the Jail’s policy, these funds are placed into a separate revenue
account for general jail purposes. The Court has recognized that "the
effective management of the detention facility . . . is a valid objec-
tive." Bell, 441 U.S. at 539; see also Broussard, 318 F.3d at 659
(holding that providing funds to administer bail-bond system was a
legitimate government purpose). The charge has a rational relation-
ship to this legitimate government interest, and it is not excessive in
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relation to that purpose. Rather, it is an effort to offset the cost of
housing pretrial detainees, as well as convicted prisoners, by requiring
such individuals to aid in the cost of their housing. A charge of one
dollar per day is not excessive for that goal.
We therefore conclude that the one dollar per day charge for pris-
oners’ keep does not amount to the unconstitutional punishment of
pretrial detainees.
V. Procedural Due Process
Slade’s second argument is that, because no predeprivation proce-
dures are afforded before the charge is deducted from a detainee’s
inmate account, his procedural due process rights were violated. The
district court did not review this claim, because the complaint makes
no reference to procedural due process.
Federal Rule of Civil Procedure 8(a)(2) provides that a viable com-
plaint must contain "a short and plain statement of the claim showing
that the pleader is entitled to relief." This requirement is by no means
onerous; instead, it is designed to ensure that the complaint "will give
the defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47
(1957). "The liberal notice pleading of Rule 8(a) is the starting point
of a simplified pleading system, which was adopted to focus litigation
on the merits of a claim." Swierkiewicz v. Sorema N.A., 534 U.S. 506,
514 (2002). Under this pleading system, a plaintiff must only "set
forth facts sufficient to allege each element of his claim." Dickson v.
Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002).
Even under the notice pleading standards of Rule 8, and even
accepting that "the long-standing practice is to construe pro se plead-
ings liberally," Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002), we
cannot say that Slade’s complaint alleges a violation of his procedural
due process rights. Slade’s complaint states two constitutional claims:
punishment under the Eighth Amendment and equal protection under
the Fourteenth Amendment. Nothing in Slade’s complaint would put
the Jail on notice that he intends to pursue a theory that the charge
violates his procedural due process rights. Slade points us to Peters
v. Jenney, 327 F.3d 307 (4th Cir. 2003), to support his position that
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his complaint raised a such a claim. As discussed, supra note 3, in
Peters, we held that a plaintiff who "pleaded the factual predicate for
her First Amendment claim" but alleged that the Fourteenth Amend-
ment was the source of her free speech rights nevertheless raised a
First Amendment claim. Id. at 321. Nothing in Peters aids Slade.
While Peters permits us to decide the merits of Slade’s substantive
due process claim, it does not alter the basic requirement that a plain-
tiff plead adequate facts to put the defendant on notice of the claims
it is facing. Slade’s factual allegations do not give any notice that he
is alleging a procedural due process violation.
Nonetheless, even if we were to find that Slade’s complaint ade-
quately presents a claim for a violation of his procedural due process
right, we would find that the imposition of the one dollar charge does
not violate that right. 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. Given this constitu-
tional command, we pose two questions when reviewing a claimed
procedural due process violation: "[T]he first asks whether there
exists a liberty or property interest which has been interfered with by
the State, the second examines whether the procedures attendant upon
that deprivation were constitutionally sufficient." Ky. Dep’t of Corr.
v. Thompson, 490 U.S. 454, 460 (1989) (citations omitted). Of course,
due process "is flexible and calls for such procedural protections as
the particular situation demands" in order "to minimiz[e] the risk of
error." Greenholtz v. Inmates of the Neb. Penal and Corr. Complex,
442 U.S. 1, 12-13 (1979). Furthermore, "[t]he amount of notice due
depends on the context." Reynolds v. Wagner, 128 F.3d 166, 179 (3d
Cir. 1997).
The Supreme Court requires lower courts to consider three factors
when determining if procedures are constitutionally sufficient: (1) the
private interest to be affected by the action; (2) the risk of erroneous
deprivation of that interest through the procedures that were used and
the probable value of added procedures; and (3) the government’s
interest, including the fiscal and administrative burdens of added pro-
cedures. Mathews, 424 U.S. at 335.
The Jail concedes that Slade has a property interest in the one dol-
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lar per day that it removed from his account.8 This property interest,
however, is limited because Virginia law provides that a pretrial
detainee must be brought to trial within five months of a probable
cause hearing, a fact that means the one dollar per day charge will be
imposed for only a limited period. Va. Code Ann. § 19.2-243 (Michie
2004). The Jail, as discussed, has a legitimate interest in attempting
to defray the costs of a prisoner’s keep and a legitimate interest in the
collection of the fee. There is also little risk of erroneous deprivation
that a pre-deprivation hearing would ameliorate. The daily deduction
of the charge from the prisoner’s account is a ministerial matter with
no discretion and minimal risk of error. See Tillman v. Lebanon
County Correctional Facility, 221 F.3d 410, 422 (3d Cir. 2000) (not-
ing that collection of a housing cost "involve[d] routine matters of
accounting, with a low risk of error"). "[T]o require pre-deprivation
proceedings for what are essentially ministerial matters would signifi-
cantly increase transaction costs and essentially frustrate an important
purpose of the program, which is to reduce the [Jail’s] costs of incar-
cerating prisoners." Id. Accordingly, we do not believe that proce-
dural due process requires a pre-deprivation hearing before the charge
is deducted from a prisoner’s account.9
We do not believe that Slade’s complaint fairly presents a claim for
a violation of his procedural due process right. Even if the complaint
can be so read, we do not believe that procedural due process required
a hearing before the charge was debited from Slade’s account.
8We note that in Washlefke v. Winston, 234 F.3d 179 (4th Cir. 2000),
we held that, for purposes of the Takings Clause, convicted prisoners in
Virginia did not have a property right in the interest earned on their
prison accounts. Id. at 186. Washlefke rested upon the fact that prisoners
had limited property rights at common law and the proposition that "if
a statute creates a property right not previously recognized . . . the prop-
erty interest so created is defined by the statute." Id. at 184. Accordingly,
we do not believe its rationale compels a finding in this case that Slade,
a pretrial detainee whose inmate account contained funds that were not
created by a limited statute, lacks a property interest in the principal in
his account for purposes of the Due Process Clause.
9We note that Slade has not alleged the absence of a post-deprivation
remedy. Clearly, Slade had the Jail’s grievance procedures available to
him. In addition, the Jail permits persons adjudicated not guilty on all
charges to write, within 60 days, for a refund of the fee.
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VI. The Takings Claim
Finally, Slade contends that the charge violates the Takings Clause,
which provides that a State shall not take "private property . . . for
public use, without just compensation." U.S. Const. amend. V. The
district court’s opinion did not include any discussion of whether the
charge violated the Takings Cause.
Slade’s Takings Clause claim suffers from the same pleading defi-
ciency as his procedural due process claim. Slade’s complaint makes
no mention of the word "property," "taken," or "just compensation"
and does not put the Jail on notice that Slade intends to pursue a claim
under the Takings Clause. Slade contends that his complaint does
raise such a claim because it cites to the Fourteenth Amendment, and
the Takings Clause, although located in the Fifth Amendment, applies
to the states by virtue of the Fourteenth Amendment. Chicago, Bur-
lington & Quincy R.R. v. Chicago, 166 U.S. 226, 239 (1897). Thus,
argues Slade, the requirements of Rule 8 are satisfied because the
proper constitutional amendment appeared in the complaint. This
argument goes too far: all of the Bill of Rights that apply to states do
so by virtue of the Fourteenth Amendment. A lone citation to the
"14th Amendment [right to be] treated equally," (J.A. at 4), cannot
suffice to put a party on notice that it faces claims arising from all of
the incorporated rights. Cf. Peters, 327 F.3d at 321 (holding that cita-
tion to First Amendment plus facts supporting a free speech claim
was sufficient to put defendant on notice). In sum, "notice pleading
requires generosity in interpreting a plaintiff’s complaint. But gener-
osity is not fantasy." Bender v. Suburban Hosp. Inc., 159 F.3d 186,
192 (4th Cir. 1998). Accordingly, we conclude that Slade’s complaint
failed to state a claim under the Takings Clause.
Moreover, we note that, even if Slade’s complaint did state such a
claim, the merits of such a claim are dubious. First, a strong argument
can be made that the charge at issue is a "reasonable user fee" and not
a taking. United States v. Sperry Corp., 493 U.S. 52, 63 (1989). In
addition, because a state can, upon a finding of probable cause,
deprive an individual of his liberty prior to trial, see Gerstein, 420
U.S. at 114, such a finding of probable cause likely could also support
the taking of the minimal charge of a dollar per day, depending upon
the lawfulness of the arrest and a close link between the charge and
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the cost of pretrial detention. Cf. Bell, 441 U.S. at 540 ("in addition
to ensuring the detainees’ presence at trial, the effective management
of the detention facility once the individual is confined is a valid
objective that may justify imposition of conditions and restrictions of
pretrial detention."). There is no contention in this case that the state
acted unlawfully in detaining appellant. The procedures of commit-
ment are conceded to conform to all constitutional norms. Given that
fact, the imposition of a modest and non-punitive charge to defray
costs cannot be said to transgress the state’s constitutional obligations.
VII.
In sum, we hold that § 53.1-131.3 is constitutional as applied to
pretrial detainees. In so holding we are not opining on the wisdom of
the policy at issue, but recognizing that "[r]espect for the institutions
of self-government requires us, in all but the rarest of cases, to defer
to the actions of legislative bodies." Brzonkala v. Virginia Polytechnic
Institute and State University, 169 F.3d 820, 890 (4th Cir. 1999) (en
banc) (Wilkinson, Chief J., concurring). Moreover, "courts are ill
equipped to deal with the increasingly urgent problems of prison
administration and reform." Procunier v. Martinez, 416 U.S. 396, 405
(1974) overruled on other grounds by Thornburgh v. Abbott, 490 U.S.
401, 413-414 (1989). "[U]nder the Constitution, the first question to
be answered is not whose plan is best, but in what branch of the Gov-
ernment is lodged the authority to initially devise the plan." Bell, 441
U.S. at 562. Our inquiry "must be limited to the issue of whether a
particular system violates any prohibition of the Constitution," id.,
and the Jail’s policy does not. Accordingly, we affirm the district
court’s dismissal of Slade’s complaint under § 1915A.
AFFIRMED
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