IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kenneth Fortune, Petitioner v. No. 644 M.D. 2012 John E. Wetzel, Submitted April 5, 2013 Respondent OPINION NOT REPORTED MEMORANDUM OPINION PER CURIAM FILED June 27, 2013 Before this Court in our original jurisdiction is the Preliminary Objection in the nature of a demurrer filed by John E. Wetzel (Respondent), in his capacity as Secretary of the Department of Corrections (Department), to the Petition for Review (Petition) filed by Kenneth Fortune (Fortune), pro se. We sustain the demurrer and dismiss the Petition, with prejudice, because it does not state a claim for which relief can be granted. Fortune is an inmate who was transferred from the State Correctional Institution (SCI) at Coal to SCI-Fayette on May 12, 2009. (Petition 1-2.) Fortune alleges that because he is viewed as a paralegal who files grievances and lawsuits alleging illegal conditions, practices, and constitutional violations by prison officials and refuses psychiatric treatment, he has experienced retaliation
from prison officials. (Petition 3-4, 8, 74-75, 81.) Fortune alleges that this retaliation has deprived him of the privileges and incentives of promotional status established by Department Policy 11.2.1 1 establishing the Pennsylvania Additive Classification Tool (PACT). 2 (Petition 3-11.) More specifically, Fortune avers that the retaliation originated upon his filing of numerous grievances after a prison officer attempted to instigate an altercation with him involving a birthday card from Fortune s family that the officer allegedly threw out without delivering to Fortune. (Petition 12-18.) Fortune alleges that, after he filed these grievances, several attempts to impose psychiatric treatment upon him actually traumatized him because his legitimate grievances were being turned into psychiatric issues because he sought redress against an officer whom he alleges triggered plots and 1 Department Policy 11.2.1, entitled Reception and Classification, provides for minimum standards regarding a program of incentives and states that [a]dditional programs of incentives may be developed at the facility or housing unit level, based upon available resources. (Department Policy 11.2.1, 6, at http//www.portal.state.pa.us/portal/server.pt/community/doc_policies/20643). Visits, job assignments, vocational training, sports, and educational programs are among the topics included within incentives. (Department Policy 11.2.1, 6(B).) 2 Department Policy 11.2.1 provides that each inmate committed to the custody of the Department is classified via the Pennsylvania Additive Classification Tool (PACT) and assigned a corresponding Custody Level. (Department Policy 11.2.1, III.) Section IV of this policy provides that [a]ll applicable procedures are contained in the procedures manual that accompanies this policy document. (Department Policy 11.2.1, IV.) PACT is [t]he instrument for ascertaining appropriate custody levels for inmates [and] is designed to be objective and behavior driven in that a just desserts model dictates inmates custody levels. Classification decision-making is centralized, monitored, and controlled through an automated data system by Central office Classification Personnel. The system is designed to reduce over-classification of inmates resulting in the placement of inmates in the least restrictive security level based on an objective assessment of his/her custody needs. (Department Policy 11.2.1, Glossary.) 2
schemes to harm him. (Petition 19-54.) Fortune states that additional retaliation occurred against him because he rightfully refused the psychiatric treatment. (Petition 55-57.) Fortune avers that such retaliation resulted in the increase in his custody level 3 from 3Z to 4Z 4 and denial of admission to barber school despite 3 Fortune alleges that, after his annual PACT assessment on August 17, 2011, he was maintained at custody level 3Z, but after his annual review on July 20, 2012, his custody level was increased to 4Z. The glossary for Department Policy 11.2.1 provides that each inmate shall be assigned one of five custody levels as determined by PACT. Custody level 3 is assigned to inmates who are permitted reasonable freedom of movement within designated areas of the facility perimeter. These inmates exhibit behavior that is generally non-assaultive within the facility perimeter, but may cause risk to the public should he/she be permitted outside of the facility. These inmates are permitted access to most jobs and programs within the facility.... These inmates require frequent, direct supervision. (Department Policy 11.2.1, Glossary.) Custody level 4 is assigned to those inmates who require a high degree of supervision. These inmates are individuals who, through a demonstrated pattern of maladjustive behavior, need continuous direct and indirect supervision. These inmates behavior is such that they may be occasionally assaultive within the facility perimeter and are viewed as a definite risk to the public outside of the perimeter. These inmates are permitted access to selected programs and jobs within the facility perimeter and are under constant observation and/or escort when moving throughout the facility individually or in groups. Newly received inmates who are unclassified are assigned to this level. (Department Policy 11.2.1, Glossary.) 4 Z Code designates single cell status and [a]ny inmate who meets any of certain designated criteria shall be... considered for Program Code Z housing classification as follows 1.a. An inmate who is evaluated by psychiatric or psychological staff as having mental health problems, such as (1) dangerous to self; (2) dangerous to others; 3
that he allegedly fulfilled the goals of his annual PACT assessment and was not disqualified from barber school by Department policy DC-ADM 807 5 precluding inmates who have been convicted of sex offenses, which he alleges does not include him. (Petition 22, 58-61.) Fortune alleges that, in retaliating against him and to thwart his efforts to obtain eligibility for barber school and less restricted custody status, his PACT assessment arbitrarily and irrationally used the (3) self-mutilative; (4) unable to care for self; and/or (5) active on the PRT roster. b. An inmate with certain medical conditions (an infectious disease, colostomy, etc.), indicating a possible need for a single cell. c. An inmate who staff believes may be victimized as a result of double celling, multiple celling, or placement in a dormitory. d. An inmate who has a documented history of aggressive or predatory behavior towards cell partners or who staff has reason to believe would exhibit assaultive or predatory behavior towards cell partners. e. An inmate with known or documented homosexual behavior. f. Inmates of opposite gender shall not be celled together. g. Long-term inmates who are serving a sentence of 10 years or more may be considered for a single cell provided the space is available. These inmates shall be assigned a Program Code A to differentiate them from Program Code Z inmates..... 5.e. An inmate assigned Program Code Z due to assaultive tendencies towards cell partners or who staff have reason to believe would be assaultive toward cell partners 1) shall be Custody Level 4 or greater as determined by [PACT] in accordance with Section 3 of th[e] procedures manual. Staff shall make a notation in the Security Concerns section of the Unit Management System, specifying the type of assaultive behavior (e.g., physical/sexual). (Department Policy 11.2.1, 5(C)(1)(a)-(g), (5)(e) (footnotes omitted).) 5 DC-ADM 807, entitled Inmate Grooming and Barber/Cosmetology Programs, provides in relevant part that [s]ince enrollment is neither a right nor an earned privilege, each inmate shall be considered on an individual basis by designated staff. (DC-ADM 807, http//www.portal.state.pa.us/portal/server.pt/document/919466/807). 4
pretext of misconduct offenses that occurred more than a decade ago to cancel his recent successes. (Petition 58-72.) Fortune alleges that this prisoner retaliation has infringed upon his rights under (1) Department Policy 11.2.1; (2) 37 Pa. Code 93.10 6 ; (3) Section 102 of the Act commonly known as the General Rules of Administrative Practice and Procedure (GRAPP), 2 Pa. C.S. 102 7 ; (4) the Eighth Amendment 8 ; (5) the right to seek redress found in the First Amendment 9 ; (6) equal protection 10 ; and (7) Article I, Section 13 of the Pennsylvania Constitution. 11 (Petition 3-5, 8-9, 72-79, 81-83.) In sum, Fortune attempts to state a Section 1983 12 claim against Respondent in his individual capacity for prisoner retaliation. 6 The Department s regulation at Section 93.10 sets out rules governing inmate discipline and provides for the dissemination of written procedures regarding the same. 37 Pa. Code 93.10. 7 Section 102 of the GRAPP provides that [a]n agency shall have power to promulgate, amend and repeal reasonable regulations implementing the provisions of this title. 2 Pa. C.S. 102(a). 8 The Eighth Amendment to the United States Constitution provides that [e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. U.S. Const. amend. VIII. 9 The First Amendment to the United States Constitution provides, in part, that Congress shall make no law... abridging... the right of the people... to petition the Government for a redress of grievances. U.S. Const. amend. I. 10 The Fourteenth Amendment to the United States Constitution provides, in part, that [n]o State shall... deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV. 11 Article I, Section 13 of the Pennsylvania Constitution provides as follows [e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted. Pa. Const. art. I, 13. 12 42 U.S.C. 1983. Section 1983 provides 5
As relief, Fortune seeks (1) a declaratory judgment that Respondent has violated Fortune s rights; (2) an order for a preliminary and permanent injunction; and (3) such other and further relief as is proper. (Petition, Relief Requested, 1-3.) In response to Fortune s Petition, Respondent filed a Preliminary Objection in the nature of a demurrer. 13 Respondent contends that Fortune is essentially seeking relief in mandamus 14 and that he has not identified any legal source pursuant to which this Court could compel prison officials, via mandamus, to provide for Fortune s desired outcomes. Respondent further argues that this Court Id. [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 13 This Court s task, when ruling on preliminary objections in the nature of a demurrer, is to accept as true all well-pleaded allegations of material fact as well as all reasonable inferences deducible therefrom. Russell v. Donnelly, 827 A.2d 535, 536 (Pa. Cmwlth. 2003). We are not required to accept as true any conclusions of law or expressions of opinion, and we should sustain a demurrer only in cases that are free from doubt and only where it appears with certainty that the law permits no recovery under the allegations pleaded. Id. We review preliminary objections in the nature of a demurrer under these guidelines and may sustain a demurrer only when a petitioner has failed to state a claim for which relief may be granted. Garrison v. Department of Corrections, 16 A.3d 560, 563 n.5 (Pa. Cmwlth. 2011). Thus, we will sustain Respondent s Preliminary Objection only if Fortune has failed to state a claim for which relief may be granted. 14 Mandamus is used to compel performance of a ministerial duty, will not be granted in doubtful cases, and is not properly used to establish legal rights, but to enforce those rights which have already been established. Francis v. Corleto, 418 Pa. 417, 421, 211 A.2d 503, 505 (1965); Doxsey v. Pennsylvania Bureau of Corrections, 674 A.2d 1173, 1174 (Pa. Cmwlth. 1996); Wassell v. Pennsylvania Board of Probation and Parole, 658 A.2d 466, 468 (Pa. Cmwlth. 1995). 6
does not have jurisdiction over Fortune s prison grievances and the day-to-day operations of a prison. A review of the Petition as a whole reveals that Fortune is seeking an injunction to remedy alleged retaliation against him. Fortune argues that the Department is retaliating against him for filing his grievances and refusing psychiatric treatment by purposefully not conducting his annual PACT assessment in compliance with Department policies so that he would not be eligible for custody upgrades and admission to barber school. As such, as stated previously herein, Fortune is attempting to state a cause of action under Section 1983. Therefore, in reviewing whether Fortune has stated a claim for which relief may be granted, we must first examine whether Fortune has stated the necessary elements of a Section 1983 claim. To state a Section 1983 claim, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). To assert a Section 1983 claim in the context of prisoner retaliation, an inmate must allege that he engaged in constitutionally protected conduct, prison officials took adverse action, and the protected conduct was a substantial or motivating factor for the action. 15 Yount v. 15 Regarding the element of adverse action, we note that a petitioner must allege that Respondent was personally involved in the alleged adverse action or deprivation because [g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Because vicarious liability is inapplicable to... 1983 suits, a plaintiff must plead that each Government-official defendant, through the official s own individual actions, has violated the Constitution. Id. Such [p]ersonal involvement can be shown through allegations of 7
Pennsylvania Department of Corrections, 600 Pa. 418, 426, 966 A.2d 1115, 1120 (2009). The adverse action or deprivation must be caused by the exercise of some right or privilege created by the State, West, 487 U.S. at 50 (quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)), and is one which is sufficient to deter a person of ordinary firmness from exercising his [constitutional rights], Yount, 600 Pa. at 428, 966 A.2d at 1121 (quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). Here, the actions that Fortune has alleged as adverse actions include retaliation against him for filing grievances and rejecting psychiatric care, which has resulted in reductions in his housing and custody status and denied him admission to barber school. However, these actions do not qualify as adverse actions for purposes of stating a claim pursuant to Section 1983 because Fortune has no clear legal right to them. For instance, the Department s regulations provide that [a]n inmate does not have a right to be housed in a particular facility or in a particular area within a facility. 37 Pa. Code 93.11(a). See, e.g., Yount, 600 Pa. at 422 n.1, 966 A.2d at 1117 n.1 (stating that prisoners have no federal due process rights to be incarcerated in any particular prison or to avoid transfer to another prison). Admission to barber school is also within the discretion of prison personal direction. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). See also Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003) (stating that a defendant in a civil rights action must have personal involvement to be liable). As explained in Rode, [a] defendant in a civil rights action must have personal involvement in the alleged wrongs.... Allegations of participation... must be made with appropriate particularity. Rode, 845 F.2d at 1207. Here, Respondent has not raised this issue at this time and, therefore, we will not review whether Fortune has alleged the necessary facts to show Respondent s personal involvement or properly pleaded this element of the claim. 8
officials and there is no constitutional right to it. Garrison v. Department of Corrections, 16 A.3d 560, 564 (Pa. Cmwlth. 2010). Since there is no clear legal right to a particular custody status, housing unit or barber school, it cannot be proved that, as a matter of law, but for his filing of grievances and lawsuits, or refusal of psychiatric treatment, Fortune would have been entitled to admission to barber school or a particular housing or custody status. Therefore, the Department s discretionary decisions about these issues do not qualify as adverse actions for purposes of Section 1983, and Fortune has failed to state a claim under that section. Moreover, to the extent that Fortune is claiming that violations of internal Department policies in conducting his PACT assessment as a form of prisoner retaliation resulted in a violation of his rights, an inmate does not have a viable claim under 42 U.S.C. 1983 based solely on a prison official s failure to adhere to a regulation, directive or policy statement. 16 16 It is well-established that the application and review of internal Department guidelines and policies are not within this Court s original or appellate jurisdiction. Bronson v. Central Office Review Committee, 554 Pa. 317, 321-22, 721 A.2d 357, 359 (1998) (holding that the [C]ommonwealth [C]ourt does not have appellate jurisdiction... over inmate appeals of decisions by intra-prison disciplinary tribunals. Internal prison procedures are within the judgment of the legislative and executive branches. Id. at 320, 721 A.2d at 358; Robson v. Biester, 420 A.2d 9, 12 (Pa. Cmwlth. 1980). The United States Supreme Court has recognized that courts are ill equipped to deal with the increasingly urgent problems of prison administration. Turner v. Safley, 482 U.S. 78, 84 (1987) (quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974), overruled on other grounds by, Thornburgh v. Abbott, 490 U.S. 401 (1989)). Consequently, the Pennsylvania Supreme Court has stated that great deference must be accorded to the administrative determinations of prison officials. Yount, 600 Pa. at 425, 966 A.2d at 1119. We must accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them. Overton v. Bazzetta, 539 U.S. 126, 132 (2003). 9
Yount v. Pennsylvania Department of Corrections, 886 A.2d 1163, 1169 (Pa. Cmwlth. 2005). Accordingly, for the foregoing reasons, we must sustain Respondent s Preliminary Objection and dismiss Fortune s Petition with prejudice. 10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kenneth Fortune, Petitioner v. No. 644 M.D. 2012 John E. Wetzel, Respondent PER CURIAM O R D E R NOW, June 27, 2013, Respondent s Preliminary Objection is SUSTAINED and Petitioner s Petition for Review is hereby DISMISSED WITH PREJUDICE.