IN THE COMMONWEALTH COURT OF PENNSYLVANIA Corey Bracey, : Petitioner : : v. : No. 632 M.D. 2012 : SUBMITTED: March 8, 2013 S.C.I. Smithfield, Major Oliver, Unit : Manager Compampiono, CCPM : Garman, : Respondents : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER FILED: August 23, 2013 Presently before this court is the preliminary objection in the nature of a demurrer of Respondents SCI Smithfield, Major Oliver, Unit Manager Compampiono, [and] CCPM Garman to the pro se petition for review filed by Corey Bracey, seeking mandamus relief with respect to his continued placement on the Department of Corrections (Department) Restricted Release List (RRL). 1 After 1 According to the petition for review, Bracey is currently an inmate housed at the State Correctional Institution (SCI) Smithfield. Further, Major Oliver is the Major of the Guards and Facility Security at SCI Smithfield and is a member of the Program Review Committee (PRC) that reviews Bracey s status in administrative custody; Unit Manager Compampiono is also a member of Bracey s PRC; and Corrections Classification and Program Manager (CCPM) (Footnote continued on next page )
review, we sustain Respondents preliminary objection and dismiss the petition for review (PFR). In his PFR, Bracey avers the following facts and conclusions of law. Bracey is currently on the Department s RRL. 2 Inmates assigned to RRL are governed under Department Policy DC-ADM 802 (pertaining generally to administrative custody), 3 which Bracey contends provides for a PRC review of administrative custody (AC) status every 90 days with an accompanying right of appeal. See DC-ADM 802 Section 2D.5 and C.5. Bracey attended a 90-day review before the PRC in July 2012 and requested that the process to remove him from the RRL be initiated. Following the PRC s direction, he submitted written objections to his RRL placement. CCPM Garman responded on behalf of the PRC, denying a recommendation that Bracey be removed from the list. According to the exhibit attached to Bracey s petition, Garman s hand written response states: RRL does (continued ) Garman is the other member of Bracey s PRC. The PRC is a committee consisting of three staff members that conduct Administrative Custody Hearings, periodic reviews, make decisions regarding continued confinement in the Restricted Housing Unit[, the cell area for inmates assigned to administrative or disciplinary custody status]... and hear all first level appeals of misconducts. Department Policy DC-ADM 801 (pertaining to disciplinary process) Glossary of Terms. 2 Pursuant to Department Policy DC-ADM 802 (governing administrative custody), an inmate may be placed on the RRL when he/she poses a threat to the secure operation of the facility and where a transfer to another facility or jurisdiction would not alleviate the security concern. The Secretary [of Corrections]/designee must approve placing the inmate in this status. Id. at Section 1B.1. RRL criteria include, but are not limited to, assaultive history against staff or other inmates; sexual assault history; escape history; and generally considered a threat to orderly operation of facility. Id. at Section 1B.2. An inmate may not be removed from the RRL without the Secretary/designee s approval. Id. at Section 4B. 3 Administrative custody is defined by Departmental Policy as a status of confinement for non-disciplinary reasons, which provides closer supervision, control, and protection than is provided in general population. DC-ADM 801 Glossary of Terms. 2
not suspend when you are on DC custody. If your DC is completed, RRL holds you on long term AC per policy. RRL is reviewed annually per policy. See Appendix to PFR. 4 Because RRL is governed by DC-ADM 802, which pertains to administrative custody, Bracey believed that Garman s determination that he was on DC custody and RRL at the same time was erroneous and sought clarification of his status. Garman responded that Bracey was housed under DC-ADM 801 and when Bracey completed his DC, he would revert to RRL under DC-ADM 802. Bracey further avers in his PFR that: DC-ADM 801 is governed pursuant to Title 37 93.10, which is inapplicable to Petitioner s RRL status. Petitioner is being deprived of appealing the PRC s decision to continue RRL confinement, as there is no appeal process available under DC-ADM 801 of appealing the continuation of Administrative Custody. Procedures of DC-ADM 801 being maliciously applied by the PRC to deny Petitioner the mandates of DC-ADM 802 appeal process, for punitive purposes. The improper housing under procedures of 801 and not 802 also impinges on Petitioner s right under the Fourteenth Amendment to the United States Constitution, and Article I 9 of the Pennsylvania Constitution........ Petitioner specifically avers that the process as mandated (DC-ADM 802) is not being provided at all, due to illegal classification under provisions of 801 (Title 37 93.10) when Petitioner is Administrative 4 Disciplinary custody, which the parties refer to as DC or DC custody, is defined as the maximum restrictive status of confinement to which an inmate guilty of a Class I misconduct may be committed. An inmate may be placed in disciplinary custody status for a period no longer than 90 days per misconduct charge. DC-ADM 801 Glossary of Terms. 3
Custody status (Title 37 93.11). Nor are respondents following their own rules and regulations. PFR, 18-20, 25. He also describes the various conditions and restrictions he associates with his RRL status, such as its indefinite duration (as opposed to DC status, which is limited in duration), the corresponding limited human contact, sensory deprivation, 23/1 lockdown, limited outdoor exercise without exposure to direct sunlight, denial of psychiatric evaluation and mental health treatment and the denial of participation in prescribed correctional programs, which affect parole eligibility. He contends that his RRL confinement, as described, constitutes an atypical significant hardship creating a liberty interest in the mandatory language of DC-ADM 802. Id. at 24. In his prayer for relief, he seeks, inter alia: (1) summary judgment compelling Respondents to follow the mandates of DC-ADM 802, thereby affording him the right to appeal the continuation of his RRL confinement; (2) a declaratory judgment that RRL constitutes administrative custody, not disciplinary custody; and (3) a declaratory judgment that Respondents violated 37 Pa. Code 93.11 or the Fourteenth Amendment to the United States Constitution and Article I 9 of the Pennsylvania Constitution. He requests monetary relief ancillary to the requested mandamus relief. In his brief responding to the Respondents preliminary objection, Bracey further argues that once the Department placed him on RRL, he was effectively converted from DC status to AC status, thereby requiring the Department to follow the mandates of DC-ADM 802, rather than DC ADM 801. He argues that the provisions of DC-ADM 802 create a liberty interest and the Department s failure to follow those provisions constitutes a due process violation under the Fourteenth Amendment. According to the exhibits attached to his 4
response to the preliminary objection, copies of his periodic PRC reviews, 5 Bracey is in DC status and as of October 4, 2012, had accrued disciplinary time until February 1, 2018. Noting the standard applicable to a request for mandamus relief, Respondents argue in their preliminary objection that Bracey has failed to establish that the Department has violated its regulation and policies and that he is entitled to any relief. 6,7 As Bracey s papers indicate, Bracey is currently housed in a restricted housing unit (RHU) serving accrued disciplinary time as a result of various misconducts. Bracey s papers also establish that he is on the RRL and has 5 The reviews are dated April 19, 2012, July 11, 2012, and October 4, 2012. 6 In deciding preliminary objections in the nature of a demurrer: [T]he court must accept as true all well-pled allegations of material fact as well as all inferences reasonably deducible therefrom. However, the court need not accept conclusions of law or expressions of opinion. For preliminary objections to be sustained, it must appear with certainty that the law will not permit recovery, and any doubt must be resolved in favor of the non-moving party. Commonwealth v. Richmond Twp., 917 A.2d 397, 400 n.6 (Pa. Cmwlth. 2007). In addition to considering the facts averred in the PFR, this court may also consider documents attached to the PFR and the averments set forth therein when deciding the preliminary objection. Diess v. Dep t of Transp., 935 A.2d 895, 903 (Pa. Cmwlth. 2007). 7 Mandamus is the proper remedy only where the plaintiff demonstrates that he has a clear right to the performance of a purely ministerial non-discretionary act, the defendant has a corresponding mandatory duty to perform the act and there is no other appropriate or adequate remedy. Nieves v. Pa. Bd. of Prob. & Parole, 995 A.2d 412, 417 (Pa. Cmwlth. 2010), aff d, 613 Pa. 366, 33 A.3d 1260 (2011). Mandamus is appropriately used to enforce legal rights which have already been established, not to establish those rights. Rummings v. Pa. Bd. of Prob. & Parole, 814 A.2d 795, 799 (Pa. Cmwlth. 2002). Mandamus relief is based upon a duty by an agency to follow a law and is available only when, under a correct interpretation of that law, the agency has an absolute ministerial duty no choice to act in a certain way. Weaver v. Pa. Bd. of Prob. & Parole, 688 A.2d 766, 777 (Pa. Cmwlth. 1997). Finally, we note that [m]andamus does not lie to compel a body vested with discretion to exercise that discretion in a certain manner or to arrive at a particular result. Id. at 776. 5
received PRC reviews approximately every three months between April 19 and October 4, 2012. Referring to the applicable regulations and policies, Respondents note that inmates do not have a right to be housed in any particular facility or any particular area of a facility. provides: The applicable regulation pertaining to housing (a) An inmate does not have a right to be housed in a particular facility or in a particular area within a facility. (b) Confinement in a restricted housing unit (RHU), other than under procedures established for inmate discipline, will not be done for punitive purposes. The Department will maintain written procedures which describe the reasons for housing an inmate in the RHU and require due process in accordance and with established principles of law for an inmate who is housed in the RHU. Inmates confined in the RHU will be reviewed periodically by facility staff. 37 Pa. Code 93.11. According to Respondents, inmates housed in a RHU are confined there for disciplinary reasons (DC status) or for non-disciplinary administrative reasons (AC status). Pursuant to Section 93.11, DC-ADM 801 was promulgated to address inmates in DC status and DC-ADM 802 was promulgated to govern inmates in AC status. Restrictions are imposed on inmates in the RHU that are not imposed on inmates in the general population. See generally DC- ADM 801 Sections 4B and 6A; DC-ADM 802 Section 3. Pursuant to DC-ADM 801, the PRC interviews inmates in DC status every ninety days. Id., Section 6A.12. Following the completion of a DC sanction, an inmate may be converted to AC status if reasons exist for the additional control. See DC-ADM 802 Section 1A.1k and 3 (noting authority to convert to AC status if any of reasons listed exist for custody). Such placement may only occur after a hearing. Id., Section 1A.3. In addition to other reviews that occur following placement in AC status, the PRC 6
interviews every inmate in AC status every ninety days to determine whether to continue the AC status or release the inmate to the general population. Id., Section 2D. An inmate may appeal the PRC s decision to continue the AC status. Id., Section 2C.5. A Facility Manager may request that an inmate be placed on the RRL based upon the criteria mentioned in footnote 2 above. Id., Section 1B. The Secretary, however, makes the final determination regarding placement on the list. Unlike regular AC status, where the Facility Manager or the PRC may release an inmate from AC status to the general population, the release of an inmate on the RRL requires the written approval of the Secretary. Id., Section 4A. and B. Pursuant to DC-ADM 802, an inmate s status on the RRL is reviewed annually. Id. While Respondents do not specifically address Bracey s argument that he is being deprived improperly of the ability to challenge the continuation of his RRL status, they do argue based upon the above administrative framework that, while Bracey is held on DC status, he is not entitled to the process and reviews set forth in DC-ADM 802. We must agree. Reading the two Departmental policies together, it is clear that an inmate on DC status is governed by separate guidelines and assigned a different status for purposes of restrictions, privileges and housing. 8 As noted, DC-ADM 802 specifically provides that once DC custody is completed, an inmate may be held on AC status if circumstances warrant. While the provisions governing placement and release from the RRL are set forth in DC-ADM 802, we see nothing to support Bracey s view that an inmate s RRL status precludes application of DC-ADM 801 if an inmate is sanctioned with disciplinary custody 8 Pursuant to DC-ADM 801 Section 6A.1, a DC status inmate must be housed in a cell separate from the general population and AC status inmates. 7
for qualifying misconduct, or that an inmate on the RRL held in DC custody retains the right to the reviews and appeals afforded to AC status inmates. The Department has not interpreted its regulations and policies in such a manner and in the absence of clear language mandating such appeal rights while in disciplinary custody, we will defer to the Department s interpretation. See generally Portalatin v. Dep t of Corr., 979 A.2d 944, 950 (Pa. Cmwlth. 2009). 9 We also agree with Respondents contention that Bracey has failed to set forth a claim for a violation of his due process rights under the Fourteenth Amendment. 10 In Torres v. Beard, 997 A.2d 1242 (Pa. Cmwlth. 2010), this court noted that state statutes and regulations may create a limited liberty interest for inmates regarding the nature of their confinement. Specifically, the court opined: [S]tates may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force... nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Id. at 1250 [quoting Sandin v. Conner, 515 U.S. 472, 483-84 (1995)]. Prison officials have the authority to determine where and under what conditions inmates should be housed; confinement in restricted housing with its associated limitations and lack of privileges does not constitute the atypical and significant hardship 9 To hold otherwise would be illogical; we can envision no rational reason to construe these policies to excuse an inmate on the RRL from the restrictions/sanctions imposed under DC- ADM 801. 10 The Fourteenth Amendment to the United States Constitution prohibits any State from depriving a person of life, liberty or property without due process of law. U.S. Const. amend. XIV. 8
required to give rise to a liberty interest. Singleton v. Lavan, 834 A.2d 672, 675-76 (Pa. Cmwlth. 2003); Griffin v. Vaughn, 112 F.3d 703, 706-08 (3d Cir. 1997). Moreover, given that placement on the RRL serves only to limit those with authority to release an inmate into the general population, placement on the list does not deprive Bracey of any protected liberty interest. Accord Bowen v. Ryan, 248 Fed. Appx. 302 (3d Cir. 2007). Based on the foregoing, we conclude that Bracey has failed to state a claim for relief. Accordingly, we sustain Respondents preliminary objection and dismiss the PFR. BONNIE BRIGANCE LEADBETTER, Judge 9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Corey Bracey, : Petitioner : : v. : No. 632 M.D. 2012 : S.C.I. Smithfield, Major Oliver, Unit : Manager Compampiono, CCPM : Garman, : Respondents : O R D E R AND NOW, this 23rd day of August, 2013, Respondents preliminary objection to the petition for review in the above-captioned matter is SUSTAINED and the Petitioner s petition for review is DISMISSED. BONNIE BRIGANCE LEADBETTER, Judge