W. Prater v. PA DOC ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wayne Prater, :
Appellant :
:
v. :
:
Pennsylvania Department of :
Correction - [D.O.C.], John E. Wetzel - :
Secretary of Corrections, Dorina :
Varner - Chief Grievance Officer, :
Keri Moore - Chief Grievance Officer, :
Barry Smith - Superintendent at SCI- :
Houtzdale - [Super], Rebecca Reifer - :
Grievance Officer at SCI Houtzdale :
[G/C], M. Ivicic - Corrections :
Classification & Program Manager :
[CCPM], Susan McQuillen - :
Corrections Employment Vocational :
Coordinator [CEVC], Joel Barrows - :
Major at SCI Houtzdale, Mr. Norvell - :
Maintenance Supervisor at SCI :
Houtzdale [M/S], Mr. Kuhn - Carpenter :
at SCI Houtzdale [Car], Crystal Loy - :
Unit Manager at SCI Houtzdale [U/M], :
Rodney McBride - Unit Counselor at :
SCI Houtzdale [U/C], Stewart - Sergent : No. 119 C.D. 2020
at SCI Houtzdale - [Sgt.] : Submitted: January 29, 2021
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: April 27, 2021
Wayne Prater (Prater) appeals, pro se, the January 7, 2020 order of the
Court of Common Pleas of Clearfield County (trial court) sustaining certain
preliminary objections filed on behalf of Pennsylvania Department of Corrections
Secretary John Wetzel (Wetzel), Chief Grievance Officer Dorina Varner (Varner),
Chief Grievance Officer Keri Moore (Moore), State Correctional Institution
Houtzdale (SCI-Houtzdale) Superintendent Barry Smith (Smith), Superintendent’s
Assistant and Facility Grievance Coordinator Rebecca Reifer (Reifer), Corrections
Classification Program Manager M. Ivicic (Ivicic), Corrections Employment
Vocational Coordinator Susan McQuillen (McQuillen), Major Joel Barrows
(Barrows), Maintenance Supervisor Norvell (Norvell), Carpenter Kuhn (Kuhn), Unit
Manager Crystal Loy (Loy), Unit Counselor Rodney McBride (McBride), and
Sergeant Stewart (Stewart) (collectively, DOC) to Prater’s pro se petition for review
(Petition). Upon review, we reverse, in part, and affirm, in part.
Prater originally filed the Petition in this Court on May 31, 2018, in the
Court’s original jurisdiction.1 This Court summarized the allegations contained in
the Petition as follows:
On May 31, 2018, Prater filed the Petition, wherein
he alleges that, while working in the maintenance
department at SCI[-]Houtzdale on March 1, 2018, he
engaged in a conversation with three white inmate
coworkers about institutions going into lockdown and
wasting money. According to Prater, during that
conversation, he stated that “the state always finds a way
not to work.” Petition ¶ 3 (emphasis omitted). Prater
avers, after making that statement, Kuhn told Prater that
he “will never work for [Kuhn] again.” Petition ¶ 4
(emphasis omitted). Prater alleges when he left the
1
The matter was originally assigned Commonwealth Court Docket No. 392 M.D. 2018.
2
maintenance department that day, Kuhn subjected him to
a “hostile pat search[.]” Petition ¶ 8. Prater further
describes that he reported to his work detail the next day,
but Norvell informed him that he was wanted back in the
housing unit. Upon his return thereto, Prater was advised
no one had requested his return. According to Prater, he
returned to the job site where Norvell again told him he
was wanted in the housing unit, but Prater explained to
Norvell that the housing unit officers denied calling for
him, and Prater asked Norvell if he was fired. Norvell
informed him he was not fired, but was not working that
day, and to return to the housing unit. On March 2, 2018,
Prater filed Grievance No. 724097, alleging he was
subjected to racial discrimination in his interactions with
Norvell and Kuhn, and complaining of an unlawful
racially discriminatory culture in the maintenance
department. He further avers he was later directed to
report to the Security Office where he was informed he
was being investigated concerning his March 1, 2018
statement. Notwithstanding, Prater acknowledges he was
not given a misconduct report for the statement.
Prater contends that on March 15, 2018, Grievance
No. 724097 was denied as frivolous, that he appealed from
that denial to Smith, and that Smith denied his appeal.
According to Prater, less than one week later, on March
28, 2018, during his morning meal, Smith told Prater, “I
will show you how big my balls are.” Petition ¶ 21
(emphasis omitted). Prater alleges that he perceived the
statement as a boast that Smith could do as he wished
without repercussion. On that same date, Prater allegedly
reported for work, but was told to return to his housing
unit, whereby Loy and McBride informed him he had been
removed from his job in the maintenance department and
had been assigned to work kitchen detail. Prater avers that
he told Loy to remove him from kitchen detail, but that his
request was ignored. Prater asserts that Loy conducted a
Unit Manager Team meeting on March 28, 2018, to
remove him from his job assignment, but that he was given
no reason for his removal. Prater also describes that, on
3
that same date, he received a job assignment orientation
notice informing him to report to the culinary department
for a work assignment. That day, Prater submitted two
Department DC-135 [Inmate Request to a Staff Member]
Forms (DC-135 form) – one to Smith, objecting to his
March 28, 2018 statement, and the other to McQuillen
requesting that his job change be postponed pending
resolution of his challenges to the change. According to
Prater, on March 31, 2018, he also filed an abuse and
retaliation complaint via the Prison Rape Elimination Act
(PREA) hotline against Smith “for his actions and
statement to Prater.” Petition ¶ 28.
Prater represents that, on April 3, 2018, McQuillen
responded to the DC-135 form stating: “[A]ddress to . . .
Smith[.]” Petition ¶ 29. Prater further asserts that, since
Smith had not responded to the first DC-135 form, on
April 5, 2018, he sent Smith another one. On April 9,
2018, Smith denied having received the March 28, 2018
DC-135 form.
According to Prater, despite having requested on
March 28, 2018 that he be removed from all jobs until his
grievance was resolved, he received a misconduct report
for failing to report to kitchen work detail. At an April 16,
2018 hearing on the misconduct report, Prater was given a
reprimand and again assigned to kitchen detail. On April
17, 2018, Prater filed another complaint against Smith via
the PREA hotline for Smith’s March 28, 2018 statement.
On April 19, 2018, Prater was called to the Security Office
to make a written report of his complaint. On April 24,
2018, Prater received another misconduct for failing to
report to his kitchen work detail. Also on April 24, 2018,
Prater sent a DC-135 form to Barrows contending that Loy
was not doing her job correctly, and that he had improperly
received two misconducts. On April 26, 2018, Prater filed
Grievance No. 733589, complaining that Loy had failed to
remove him from all jobs, that McQuillen had ignored his
job change request and that Prater had sent a DC-135 form
to Barrows and that Loy’s refusal to grant his request
4
resulted in two misconducts. Barrows denied Grievance
No. 733589 on May 3, 2018.
Prater contends that because Barrows was named in
the grievance, Barrows violated Inmate Grievance Policy
DC-ADM 804 by responding thereto. Further, he asserts
that [DOC] failed to comply with this Court’s precedent.
He seeks money damages and equitable relief.
See Prater v. Dep’t of Corr. (Pa. Cmwlth., No. 392 M.D. 2018, filed July 10, 2019),
slip op. at 2-4 (footnotes omitted); see also generally Petition.
On July 17, 2018, DOC filed Respondents’ Preliminary Objections to
the Petition for Review (Preliminary Objections). The Preliminary Objections raised
three preliminary objections: first, that this Court lacked jurisdiction over the matter;
second, that the Petition failed to conform to the requirements of the Pennsylvania
Rules of Civil Procedure; and third, that the Petition failed to state a claim upon
which relief may be granted – a demurrer. By memorandum opinion and order dated
July 10, 2019, this Court granted DOC’s first preliminary objection and transferred
the matter to the trial court for disposition of the remaining two preliminary
objections. See Prater, slip op. at 12-13 & Order.
After reviewing the Preliminary Objections and the parties’ attendant
filings in support and opposition thereto, the trial court sustained both the second
and third Preliminary Objections and dismissed the Petition, with prejudice, by order
dated January 7, 2020. See Trial Court Order dated January 7, 2020 (Trial Court
Order). Prater appealed to this Court.
5
On appeal,2 Prater claims that the trial court erred in sustaining the
Preliminary Objections.3 We find the trial court erred by sustaining the second
2
Where a trial court dismisses a complaint as a result of preliminary objections, this Court’s
review is limited to determining whether the trial court committed an error of law or an abuse of
discretion. Brown v. Wetzel, 179 A.3d 1161, 1164 n.2 (Pa. Cmwlth. 2018).
3
Prater framed his questions presented to this Court as follows:
#1.) Did The Common Pleas Court of Clearfield County error
by dismissing “ Petition for Review ” for not following Pa. R. Civ.
P. Rule 1019(i)?
#2.) Did The Common Pleas Court of Clearfield County error
by ignoring Petitioner’s clear claim of “ Procedural Due Process ”
or “ Procedural Requirements ”, pursuant to 37 Pa. Code §93.10(b)
–[State law for Inmate Discipline ] ?
#3.) Did The Common Pleas Court of Clearfield County error
by not addressing Respondent’s “ Constructive Contempt ” of two
standing Court rulings in Bush Supra & Williams Supra?
#4.) Did The Common Pleas Court of Clearfield County error
by denying Appellant the equal protection, his civil rights, the right
against discrimination, the due course of law, the right to petition,
and the freedom of speech, when it dismissed “ Petition for Review
” in violation of Pa. Const. Art. 1 §7, §11, §20, §26, and §28?
#5.) Did The Common Pleas Court of Clearfield County error
by not hold Respondent’s accountable for violation of State law 37
Pa. Code §93.10(b), allow Respondent’s to continue their campaign
of racial discrimination, retaliation, and denial of equal protection
against Appellant?
#6.) Did The Common Pleas Court of Clearfield County error
by dismissing “Petition for Review”, when Respondent’s never
deny any of the facts presented?
Prater’s Br. at 2 (verbatim). Although facially stated as separate issues in the Statement of
Questions Presented contained in Prater’s brief, a review of the Argument portion of Prater’s brief
reveals that Prater’s issues generally argue disagreement with the trial court’s determination of the
Preliminary Objections based on Prater’s view of his underlying claim regarding his removal from
his prison job. Therefore, as this Court’s role is not to act as counsel for litigants, see
Commonwealth v. Le, 208 A.3d 960, 976 n.17 (Pa. 2019) (“It is not [an appellate] Court’s function
6
Preliminary Objection, but properly dismissed the Petition after it sustained the third
Preliminary Objection.
Regarding the second Preliminary Objection, Pennsylvania Rule of
Civil Procedure 1019(i) (Pa.R.C.P. No. 1019(i)) provides that, “[w]hen any claim or
defense is based upon a writing, the pleader shall attach a copy of the writing, or the
material part thereof, but if the writing or copy is not accessible to the pleader, it is
sufficient so to state, together with the reason, and to set forth the substance in
writing.” Pa.R.C.P. No. 1019(i). Like non-incarcerated litigants, prisoners are
subject to the requirements of Pa.R.C.P. No. 1019(i) and may have their petitions
dismissed for failure to comply with the rule. See Feigley v. Dep’t of Corr., 872
A.2d 189, 195 (Pa. Cmwlth. 2005) (sustaining preliminary objection based on
Pa.R.C.P. No. 1019(i) where inmate failed to attach necessary writing to petition).
Here, without identifying specific allegedly missing documents, the
second Preliminary Objection claimed that Prater failed to attach required
documents to the Petition.4 See Preliminary Objections at 6. The trial court
sustained this objection, also without identifying the purportedly missing
documents.5 See Trial Court Order at 3.
to act as an advocate for the parties.”), and given the lack of clarity in Prater’s purportedly
individual claims, this opinion will focus instead on the trial court’s reasoning for sustaining the
Preliminary Objections, the wisdom and correctness of which Prater challenges.
4
The Preliminary Objections alleged simply that Prater failed to “attach[] to his Petition []
a copy of the writings upon which his claim is based, as required by Pa.R.C.P. No. 1019(i).”
Preliminary Objections at 6.
5
The trial court’s order sustained DOC’s second Preliminary Objection by stating simply
that “[Prater] failed to follow the Rules of Civil Procedure, number 1019(i) by omitting a copy of
the writing to [DOC] that his claim was based on.” Trial Court Order at 3.
7
In their current brief to this Court, DOC identify the missing
documents, stating: “[s]pecifically, [Prater] repeatedly refers to DC-135 Request to
Staff forms in his Petition, but failed to append them to the filing.” DOC’s Br. at
12. However, a review of the Petition reveals that Prater in fact did attach a
considerable amount of documentary evidence as attachments to the Petition,
including multiple DC-135 Requests to Staff to the Petition. See Petition Exhibits
B, C, E, F, H & K. As a result, the trial court erred by sustaining the second
Preliminary Objection.
The trial court did not err, however, by sustaining the demurrer
presented by the third Preliminary Objection. In its third objection, DOC argued
that Prater failed to state a claim upon which relief could be granted because, in part,
Prater has no right to a particular prison job. See Preliminary Objections at 6-8. The
trial court sustained this objection, finding that, in addition to failing to allege how
certain of the DOC appellees6 were personally involved in the alleged wrongdoings,
[Prater] also failed to state a right granted by the
Constitution or United States laws that [DOC] violated.
Even though [Prater] argues his claim is not based on a
specific job, all facts stated lead back to that complaint.
Trial Court Order at 3. The trial court noted that “[t]here is no protected right for an
inmate to have a specific job[,]” and ultimately concluded that, “[s]ince [Prater] has
stated no other protected right that has been violated, his [Petition] cannot stand.”
Id.We agree with the trial court’s determination of DOC’s demurrer. The
factual allegations of the Petition center around Prater’s removal from his preferred
6
Specifically, Wetzel, Varner, Moore, Reifer, Ivicic, McQuillen, Norvell, and Stewart. See
Trial Court Order at 3.
8
prison job in the prison maintenance department and reassignment to a culinary
position. See Petition at 2-7. Simply put, prisoners have no protected interest in
maintaining any particular prison job. See Bush v. Veach, 1 A.3d 981, 984 (Pa.
Cmwlth. 2010). Therefore, the trial court did not err in sustaining the Preliminary
Objections’ demurrer.
Further, to the extent Prater alleges he was denied due process
regarding his grievances related to alleged violations of prison policy, this claim also
fails to state a claim upon which relief may be granted. DOC’s internal grievance
procedure provides constitutionally adequate and meaningful legal remedies to
inmates. See Fennell v. Goss (Pa. Cmwlth., No. 1198 C.D. 2015, filed Oct. 2,
2015);7 Silo v. Ridge, 728 A.2d 394, 399 (Pa. Cmwlth. 1999). This Court lacks
jurisdiction to consider the Petition to the extent that it seeks review of the denial of
Prater’s grievances. In Bronson v. Central Office Review Committee, 721 A.2d 357(Pa. 1998), our Supreme Court agreed with this Court that “internal prison operations
are more properly left to the legislative and executive branches, and that prison
officials must be allowed to exercise their judgment in the execution of policies
necessary to preserve order and maintain security free from judicial interference.”
Id. at 358 (citing Robson v. Biester, 420 A.2d 9 (Pa. Cmwlth. 1980)). In Bronson,
the Supreme Court held that this Court lacks jurisdiction to review inmate appeals
of decisions by intra-prison disciplinary tribunals:
[u]nlike the criminal trial and appeals process where a
defendant is accorded the full spectrum of rights and
protections guaranteed by the state and federal
7
Pursuant to Commonwealth Court Internal Operating Procedure 414(a), 210 Pa. Code
§ 69.414(a), unreported panel decisions of this Court issued after January 15, 2008, may be cited
for their persuasive value.
9
constitutions, and which is necessarily within the ambit of
the judiciary, the procedures for pursuing inmate
grievances and misconduct appeals are a matter of internal
prison administration and the full panoply of rights due a
defendant in a criminal prosecution is not necessary in a
prison disciplinary proceeding. Therefore, the
[C]ommonwealth [C]ourt does not have appellate
jurisdiction, under 42 Pa.C.S § 763, over inmate appeals
of decisions by intra-prison disciplinary tribunals.
Id. at 358–59 (internal citations and quotations omitted). Even if Prater had brought
this Petition before this Court in our original jurisdiction, our Supreme Court further
held in Bronson that this Court cannot entertain such matters in our original
jurisdiction, except in very limited circumstances. As the Supreme Court explained:
[p]rison inmates do not enjoy the same level of
constitutional protections afforded to non-incarcerated
citizens . . . incarceration brings about the necessary
withdrawal or limitation of many privileges and rights, a
retraction justified by the considerations underlying our
penal system. Unless an inmate can identify a personal or
property interest . . . not limited by Department of
Corrections regulations and which has been affected by a
final decision of the [D]epartment the decision is not an
adjudication subject to the court’s review.
Id. at 359 (internal citation, quotations, and brackets omitted). Thus, because the
Petition challenges the denial of Prater’s grievances regarding internal prison
administrative determinations, we do not have jurisdiction to consider these findings.
See id. at 358-59.
For the preceding reasons, we reverse the Trial Court Order to the
extent it sustained the second Preliminary Objection, but affirm the Trial Court
10
Order to the extent it sustained the third Preliminary Objections’ demurrer and
dismissed the Petition.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wayne Prater, :
Appellant :
:
v. :
:
Pennsylvania Department of :
Correction - [D.O.C.], John E. Wetzel - :
Secretary of Corrections, Dorina :
Varner - Chief Grievance Officer, :
Keri Moore - Chief Grievance Officer, :
Barry Smith - Superintendent at SCI- :
Houtzdale - [Super], Rebecca Reifer - :
Grievance Officer at SCI Houtzdale :
[G/C], M. Ivicic - Corrections :
Classification & Program Manager :
[CCPM], Susan McQuillen - :
Corrections Employment Vocational :
Coordinator [CEVC], Joel Barrows - :
Major at SCI Houtzdale, Mr. Norvell - :
Maintenance Supervisor at SCI :
Houtzdale [M/S], Mr. Kuhn - Carpenter :
at SCI Houtzdale [Car], Crystal Loy - :
Unit Manager at SCI Houtzdale [U/M], :
Rodney McBride - Unit Counselor at :
SCI Houtzdale [U/C], Stewart - Sergent : No. 119 C.D. 2020
at SCI Houtzdale - [Sgt.] :
ORDER
AND NOW, this 27th day of April, 2021, the January 7, 2020 order of
the Court of Common Pleas of Clearfield County (Trial Court Order) is REVERSED
to the extent it sustained the second objection contained in the preliminary objections
filed on behalf of the Pennsylvania Department of Corrections’ Secretary John
Wetzel, Chief Grievance Officer Dorina Varner, Chief Grievance Officer Keri
Moore, State Correctional Institution Houtzdale’s Superintendent Barry Smith,
Superintendent’s Assistant and Facility Grievance Coordinator Rebecca Reifer,
Corrections Classification Program Manager M. Ivicic, Corrections Employment
Vocational Coordinator Susan McQuillen, Major Joel Barrows, Maintenance
Supervisor Norvell, Carpenter Kuhn, Unit Manager Crystal Loy, Unit Counselor
Rodney McBride, and Sergeant Stewart (Preliminary Objections) to Appellant
Wayne Prater’s pro se petition for review filed May 31, 2018 (Petition). The Trial
Court Order is AFFIRMED to the extent it sustained the Preliminary Objections’
third objection in the nature of a demurrer. The Petition is DISMISSED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge