E. Scott, Jr. v. The PA D.O.C. ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Earnest Scott, Jr., :
Petitioner :
:
v. :
:
The PA D.O.C., U/M B. Kelly, :
John E. Wetzel, Sgt. Jones, :
Superintendent Barry Smith, :
Attorney General Josh Shapiro, :
Governor Tom Wolf, C/01 George, : No. 76 M.D. 2021
Respondents : Submitted: July 22, 2022
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: November 4, 2022
Before this Court are the preliminary objections of Attorney General
Josh Shapiro (A.G. Shapiro), and the preliminary objections of the Pennsylvania
Department of Corrections’ (Department), State Correctional Institution (SCI)-
Houtzdale Unit Manager B. Kelly (Manager Kelly), Department Secretary John E.
Wetzel (Secretary Wetzel), Sergeant Jones (Jones), SCI-Houtzdale Superintendent
Barry Smith (Superintendent Smith), Governor Tom Wolf (Governor Wolf), and
Corrections Officer George (George),1 (collectively, Department Respondents) to
Earnest Scott, Jr.’s (Scott) Second Amended Petition for Review in the nature of a
1
The parties did not list Manager Kelly’s, Jones’s or George’s full names in the documents
filed with this Court.
complaint for compensatory and punitive damages (Petition) filed in this Court’s
original jurisdiction.
Background2
Scott is an inmate at SCI-Houtzdale. On December 9, 2020, Scott and
his cellmate were removed from their cell and taken to the restricted housing unit
(RHU) - an area known as “the hole” - based on unfounded reports that they had
threatened Jones. Petition ¶ 2. Their property was not inventoried until
approximately 10 days later. Scott observed that some of his property was missing,
including numerous items Scott purchased from the commissary two days before his
removal. Specific missing items included approximately 150 ice cream tickets, 160
photo tickets, a fan, a surge protector, two pairs of shoes, a watch, a pair of
sweatpants, a sweatshirt, and all of Scott’s food. Scott discovered that Jones and
George violated Department policy by letting inmates pack Scott’s property.
Further, Scott learned that inmates observed another inmate on trash detail remove
a large trash bag containing Scott’s property, while Jones and George “just looked.”
Petition ¶ 15.
Scott filed a grievance on December 29, 2020, and Manager Kelly
denied Scott’s grievance on January 11, 2021. In his grievance denial, Manager
Kelly noted that many of the items Scott claimed were missing exceeded the amounts
that inmates were permitted to possess in their cells, and there was no evidence that
Scott still had those items in his possession at the time he was sent to the RHU. On
January 13, 2021, Scott appealed from the grievance denial to Superintendent Smith,
who denied Scott’s appeal the next day. On January 18, 2021, Scott appealed to the
Department, which denied his appeal on February 16, 2021.
2
The facts are as alleged in Scott’s Petition.
2
Facts
On August 31, 2021, Scott filed his Petition in this Court.3 Therein,
Scott generally asserts: (1) A.G. Shapiro and Department Respondents violated his
constitutional rights under Section 1 of the Civil Rights Act of 1871, 42 U.S.C.
§1983 (Section 1983), pursuant to Monell v. Department of Social Services, 436 U.S.
658 (1978), by failing to train, supervise and discipline their officers/employees; (2)
all respondents negligently caused the loss of his property; and (3) all respondents
violated his due process rights under the Fourteenth Amendment to the United States
(U.S.) Constitution4 when they failed to provide him an opportunity to challenge his
property loss, and that the alleged lost property exceeded permissible prison limits.
On September 13, 2021, A.G. Shapiro filed his preliminary objections.
Therein, A.G. Shapiro challenges the Petition’s legal sufficiency on the basis that
the Petition does not identify any action taken by A.G. Shapiro with respect to
Scott’s alleged loss, or any duty A.G. Shapiro owed to Scott. In addition, A.G.
Shapiro contends that Scott’s claims are barred by the Eleventh Amendment to the
U.S. Constitution (Eleventh Amendment),5 and by sovereign immunity. On October
14, 2021, Scott filed a document titled Preliminary Objections in response thereto.6
3
Scott filed his initial Petition for Review on March 15, 2021. On May 19, 2021, Scott
filed his First Amended Petition for Review. On January 5, 2022, this Court granted Scott leave
to file a Third Amended Petition for Review. However, by January 24, 2022 letter, Scott requested
to proceed on the Petition.
4
The Fourteenth Amendment to the U.S. Constitution states, in pertinent part, that “[n]o
State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV,
§ 1.
5
The Eleventh Amendment provides: “The Judicial power of the [U.S.] shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
CONST. amend. XI.
6
Scott’s filing appears to be more of a response to A.G. Shapiro’s preliminary objections
than preliminary objections thereto. Specifically, Scott insists that A.G. Shapiro may be held liable
in his supervisory capacity, that A.G. Shapiro’s Eleventh Amendment immunity defense from
3
On September 21, 2021, Department Respondents filed their
preliminary objections. Therein, Department Respondents similarly challenge the
Petition’s legal sufficiency, contending that Department Respondents were not
personally involved in the incidents that led to the alleged loss of Scott’s property,
that Scott has not alleged facts sufficient to support his negligence claim, that Scott’s
due process claim fails because he was afforded a meaningful post-deprivation
remedy, and that Scott’s Monell liability claim fails since such action is barred by
the Eleventh Amendment. On December 27, 2021, Scott filed a document titled
Preliminary Objections to Department Respondents’ preliminary objections.7
Legal Analysis
In ruling on preliminary objections, we must accept as true
all well-pleaded material allegations in the petition for
review [in the nature of a complaint], as well as all
inferences reasonably deduced therefrom. The Court need
not accept as true conclusions of law, unwarranted
inferences from facts, argumentative allegations, or
expressions of opinion. In order to sustain preliminary
objections, it must appear with certainty that the law will
Section 1983 claims fails because the Commonwealth has waived sovereign immunity for property
loss and damage, and that A.G. Shapiro is not immune from punitive damages. Because Scott’s
filing does not challenge A.G. Shapiro’s preliminary objections on grounds satisfying
Pennsylvania Rule of Civil Procedure No. 1028(a), this Court shall treat Scott’s filing as a response
to A.G. Shapiro’s preliminary objections.
7
Similar to Scott’s filing responding to A.G. Shapiro’s preliminary objections, Scott’s
purported preliminary objections to Department Respondents’ preliminary objections are more
akin to a response thereto. Scott alleges therein that Department Respondents may be held liable
in their supervisory capacities, that Department Respondents violated a legal duty, that Department
Respondents’ Eleventh Amendment immunity defense from Section 1983 claims fails because the
Commonwealth has waived sovereign immunity for property loss and damage, and that his due
process rights were violated. Because Scott’s filing does not challenge Department Respondents’
preliminary objections on grounds satisfying Pennsylvania Rule of Civil Procedure No. 1028(a),
this Court shall treat Scott’s filing as a response to Department Respondents’ preliminary
objections.
4
not permit recovery, and any doubt should be resolved by
a refusal to sustain them.
A preliminary objection in the nature of a demurrer admits
every well-pleaded fact in the [petition for review in the
nature of a] complaint and all inferences reasonably
deducible therefrom. It tests the legal sufficiency of the
challenged pleadings and will be sustained only in cases
where the pleader has clearly failed to state a claim for
which relief can be granted. When ruling on a demurrer,
a court must confine its analysis to the [petition for review
in the nature of a] complaint.
Log Cabin Prop., LP v. Pa. Liquor Control Bd., 276 A.3d 862, 869 (Pa. Cmwlth.
2022) (quoting Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010))
(emphasis added; citations omitted).
I. A.G. Shapiro and Department Respondents’ Preliminary Objections
- Monell and Civil Rights Liability
Initially, both A.G. Shapiro and Department Respondents challenge
Scott’s claims that they may be held liable for failure to properly train, supervise and
discipline employees pursuant to Monell and City of Canton v. Harris, 489 U.S. 378(1989), and that those actions, and the deprivation of his property, violated Scott’s
civil rights. Scott rejoins that the Commonwealth has exempted itself from
sovereign immunity for damages from care, custody or control of personal property
in the possession of Commonwealth parties,8 and, therefore, the Eleventh
8
Section 8522(b)(3) of the Sovereign Immunity Act waives sovereign immunity for
damages caused by:
(3) Care, custody or control of personal property. — The care,
custody or control of personal property in the possession or control
of Commonwealth parties, including Commonwealth-owned
personal property and property of persons held by a Commonwealth
agency, except that the sovereign immunity of the Commonwealth
is retained as a bar to actions on claims arising out of
Commonwealth agency activities involving the use of nuclear and
other radioactive equipment, devices and materials.
5
Amendment to the U.S. Constitution does not protect the Commonwealth from
liability for his lost property. Scott asserts that the respondents’ alleged failure to
train resulted in the property loss, and, consistent with Monell and Canton, he is
entitled to pursue his claims.
This Court has explained that:
[The] Department . . . is immune from Monell liability. In
Monell, the [U.S.] Supreme Court ruled that local
governments could be held liable under [Section 1983]
for depriving individuals of their constitutional rights, but
only when such deprivations were caused by the
enforcement of official policies or customs.[9] Monell, 436
U.S. at 690-95. . . . [T]he Department, as an appendage
of our Commonwealth’s government, cannot be
subject to Monell liability due to the protections from
suit afforded to states by the Eleventh Amendment.
Rokita v. Pa Dep’t of Corr. (Pa. Cmwlth. No. 182 M.D. 2020, filed Nov. 20, 2020),
slip op. at 7-8 (emphasis added; footnote omitted).10
Further, this Court has held:
“[A] claim that state officials have deprived a prisoner
of personal property does not state a recognizable
[Section] 1983 action.” Atwell v. Lavan, 557 F. Supp. 2d
532, 555 (M.D. Pa. 2008), aff’d, 366 F. App’x 393 (3d Cir.
2010) (citation omitted). To that end, a Section 1983
action cannot be brought to vindicate a prisoner’s right
to property where the deprivation occurs as a result of
a tortious act of a state employee and where an adequate
remedy exists to compensate those who suffered tortious
loss at the hands of the state. The U.S. Supreme Court
later extended this holding to intentional deprivations of
42 Pa.C.S. § 8522(b)(3).
9
Similarly, in Canton, the U.S. Supreme Court held that a municipality may be liable
under Section 1983 where municipal employees are not adequately trained on a valid policy and
the “constitutional wrong has been caused by that failure to train.” Canton, 489 U.S. at 387.
10
Unreported decisions of this Court, while not binding, may be cited for their persuasive
value. Section 414(a) of the Internal Operating Procedures of the Commonwealth Court, 210 Pa.
Code § 69.414(a). The unreported decisions cited herein are relied on for their persuasive
authority.
6
property, similarly holding that where a prisoner has an
adequate post-deprivation remedy under state law for any
loss suffered to his property, a Section 1983 action is not
available.
Palmer v. Doe, (Pa. Cmwlth. No. 2451 C.D. 2015, filed May 5, 2016), slip op. at 12-
13 (emphasis added; citation omitted). Accordingly, Scott may not pursue a Section
1983 action for his lost property. Further, to the extent Scott claims that A.G.
Shapiro and/or Department Respondents failed to properly train, supervise and
discipline employees, A.G. Shapiro and Department Respondents are immune from
such liability as it is not one of the enumerated exceptions to sovereign immunity
and is barred by the Eleventh Amendment to the U.S. Constitution. See 42 Pa.C.S.
§ 8522(b).
Accordingly, this Court sustains A.G. Shapiro’s and Department
Respondents’ preliminary objections with respect to Scott’s assertions of Monell
liability and civil rights deprivations in the alleged property loss, and dismisses the
Petition to the extent Scott’s claims rest thereon.
II. A.G. Shapiro’s Preliminary Objection - Negligence
A.G. Shapiro also alleges in his first preliminary objection that Scott’s
negligence claims against him are legally insufficient and must be dismissed.
Specifically, A.G. Shapiro contends that Scott failed to allege A.G. Shapiro’s
knowledge or personal involvement or that A.G. Shapiro had a duty pertaining to
the alleged actions or inactions that led to the alleged loss of Scott’s property.11 Scott
responds that A.G. Shapiro may be held liable as a supervisor pursuant to Monell
and other federal jurisprudence. Further, Scott claims that A.G. Shapiro can also be
11
A.G. Shapiro cites the Commonwealth Attorneys Act, 71 P.S. §§ 732-101 - 732-506,
and article IV, section 4.1 of the Pennsylvania Constitution as describing the Attorney General’s
duties.
7
held liable pursuant to what is commonly referred to as the Sovereign Immunity
Act.12
This Court has explained:
[T]o state a prima facie cause of action for negligence, a
plaintiff must allege[:] (1) a legal duty or obligation to
conform to a certain standard of conduct; (2) a failure
to conform to that standard; (3) a reasonably close
causal connection between the conduct and resulting
injury; and (4) actual damage or loss.
Williams v. Syed, 782 A.2d 1090, 1093-94 (Pa. Cmwlth. 2001) (emphasis added).
However, “individual public employees are not vicariously liable for the actions
of subordinates merely because the subordinate is in the employee’s chain of
command.” Fauber v. Fetterolf, Harlow & Wetzel (Pa. Cmwlth. No. 1856 C.D.
2013, filed June 18, 2014), slip op. at 6 (emphasis added). Thus, “[m]erely being
in the ‘chain of command’ does not subject [a public servant manager] to suit
on a theory of vicarious responsibility.” Price v. Corr. Officer Simcox (Pa.
Cmwlth. No. 307 C.D. 2017, filed Sept. 28, 2017), slip op. at 9 (emphasis added)
(quoting Du Bree v. Cmwlth., 393 A.2d 293, 295, 481 Pa. 540 (Pa. 1978)); see also
Bush v. Veach, 1 A.3d 981 (Pa. Cmwlth. 2010).
This Court agrees that Scott’s allegations in the Petition do not
demonstrate that A.G. Shapiro had a duty with respect to Scott’s alleged property
loss, nor has Scott pled facts evidencing A.G. Shapiro’s involvement in such loss.13
Accordingly, this Court sustains A.G. Shapiro’s first preliminary objection.
12
42 Pa.C.S. §§ 8501-8502, 8521-8527. The Sovereign Immunity Act does not impose
liability, but rather waives Sovereign Immunity for damages arising in certain enumerated
circumstances.
13
A.G. Shapiro also contends that Scott’s failure to allege A.G. Shapiro’s personal
involvement in the alleged deprivation of Scott’s rights requires that this Court dismiss Scott’s
civil rights claim against him. Although this Court has concluded that Scott may not pursue a
Section 1983 claim, even assuming such a claim was permissible, Scott’s claim against A.G.
Shapiro would fail. “To maintain a Section 1983 claim, an inmate must allege that each
8
III. Department Respondents’ Preliminary Objection – Negligence
1. Governor Wolf, Secretary Wetzel, Superintendent Smith
and Manager Kelly
Department Respondents contend that Scott has not alleged Department
Respondents’ personal involvement in the deprivation of Scott’s property, that
Scott’s allegations do not establish negligence, and that sovereign immunity bars
liability. Department Respondents claim that Scott “fails to allege any facts to
indicate how Governor Wolf, Secretary Wetzel, [Superintendent] Smith, [Manager]
Kell[]y, and Jones14 were involved, personally engaged in, or directed the
commission of, any wrongdoing or actionable conduct with respect to his
property[,]” and that “no facts are asserted to indicate [] [Governor] Wolf,
[Secretary] Wetzel, [Superintendent] Smith[,] [Manager] Kell[]y, or Jones were
personally involved with the packing, inventorying and/or moving of [Scott]’s
property, or that they in any way handled the property that later went missing.”
Department Respondents’ P.O.s at 4-5. Department Respondents also contend that
sovereign immunity bars Scott’s claims. Scott responds that Department
Respondents all had a legal duty to comply with Pennsylvania law.
A review of Scott’s Petition reveals that with respect to Governor Wolf,
Secretary Wetzel, Superintendent Smith and Manager Kelly, Scott has asserted no
facts to support a negligence claim beyond his assertion that Department
defendant was directly and personally responsible for the purported conduct and establish
fault and causation on the part of each defendant.” Rivera v. Silbaugh, 240 A.3d 229, 237 (Pa.
Cmwlth. 2020) (emphasis added). Scott does not allege that A.G. Shapiro was “directly and
personally” involved in the alleged deprivation of his property or allege facts demonstrating such.
Id.14
Notably, although Department Respondents acknowledge that “[Scott] claims that . . .
Jones and George allowed inmate ‘block workers’ to pack [Scott’s] personal property, in violation
of [Department] policy[,]” Department Respondents omit George from the list of respondents it
claims were not personally involved in the alleged deprivation. Department Respondents’ P.O.s ¶
11. See id. ¶¶ 20- 21, 24- 25.
9
Respondents failed to train, supervise, and discipline, and that Superintendent Smith
and Manager Kelly improperly denied his grievance. With respect to Governor Wolf
and Secretary Wetzel, Scott’s claims assign liability based on chain of command,
without Governor Wolf’s and Secretary Wetzel’s personal involvement, and Scott
has not asserted facts sufficient to support a negligence claim against them.
With respect to Superintendent Smith and Manager Kelly, this Court
has held that answering an inmate grievance is insufficient to demonstrate actual
knowledge or personal liability for the alleged conduct. See Bush.15 Accordingly,
Scott’s negligence claims are dismissed with respect to Governor Wolf, Secretary
Wetzel, Superintendent Smith and Manager Kelly.16
2. Jones and George
Scott avers that “Jones and [] George let their ‘block workers’[,] aka
inmates[,] pack [] Scott’s . . . personal property.” Petition ¶ 12. Scott further alleges
that other inmates saw an inmate on trash detail “take a ‘big trash bag’ full of what
was described to me was full of my stuff . . . [a]nd [] Jones[,] as well as [] George[,]
just looked.” Petition ¶¶ 14-15. Scott claims that “George and [] Jones negligently
destroyed or lost my property, because they have [sic] failed to pack my personal
property themselves as directed by their superior[, Secretary] Wetzel.” Petition ¶
27.
15
See also Martin v. Giroux, (Pa. Cmwlth. No. 1934 C.D. 2016, filed May 26, 2017), slip
op. at 8 (“[P]risoners have no constitutionally-protected right to a grievance procedure and
participation in the after-the-fact review of a grievance or appeal is not enough to establish personal
involvement for purposes of [Section] 1983.”).
16
With respect to Scott’s Section 1983 claims, even assuming Scott could pursue such
claims, as with A.G. Shapiro, Scott has not alleged facts that Governor Wolf, Secretary Wetzel,
Superintendent Smith and Manager Kelly were “directly and personally responsible for the
purported conduct and establish fault and causation on the part of each defendant.” Rivera, 240
A.3d at 237.
10
To the extent Department Respondents contend that sovereign
immunity bars Scott’s claims,
[s]overeign immunity acts as a bar to suits against
Commonwealth parties, including its officials and
employees acting within the scope of their duties. 1
Pa.C.S. § 2310. Establishing a limited list of exceptions
to immunity, the General Assembly adopted . . . the
Sovereign Immunity Act[.] . . . Section 8522 of the
Sovereign Immunity Act waives “immunity as a bar to an
action against Commonwealth parties, for damages arising
out of a negligent act where the damages would be
recoverable under the common law or a statute creating a
cause of action if the injury were caused by a person not
having available the defense of sovereign immunity,” for
specifically enumerated categories of acts. 42 Pa.C.S. §
8522. A “Commonwealth party” is defined in Section
8501 as “[a] Commonwealth agency and any employee
thereof, but only with respect to an act within the scope of
his office or employment.” 42 Pa.C.S. § 8501. Thus,
when an employee of a Commonwealth agency, such as a
[Department] employee, is acting within the scope of his
or her duties, the employee is shielded by the doctrine of
sovereign immunity from liability for tort claims arising
from negligent acts that do not fall within the statutory
exceptions listed in Section 8522(b) of the Sovereign
Immunity Act. 1 Pa.C.S. § 2310; 42 Pa.C.S. § 8522(a)-
(b). Sovereign immunity is not waived for intentional acts
committed by a Commonwealth employee acting within
the scope of his or her employment.
Paluch v. Pa Dep’t of Corr., 175 A.3d 433, 437-38 (Pa. Cmwlth. 2017).
[An inmate], therefore, b[ears] the “initial burden” of
setting forth a claim for negligence against the Department
where damages would be recoverable under the common
law or a statute creating a cause of action. LaChance v.
Michael Baker Corp., 869 A.2d 1054, 1057 (Pa. Cmwlth.
2005), as amended (Feb. 10, 2005); see also Williams v.
Phila. Hous. Auth., 873 A.2d 81, 85 (Pa. Cmwlth. 2005)
(“The threshold question in a case of . . . sovereign
immunity is whether the plaintiff would have an action in
damages at common law or statute if the defendant could
11
not claim the defense of governmental or sovereign
immunity.”).
Young v. Wetzel, 260 A.3d 281, 289 (Pa. Cmwlth. 2021) (footnote omitted).
Claims by an inmate for loss of his personal property while
it was under the care, custody or control of prison
employees are claims for damages caused by the care of
personal property in the possession or control of
Commonwealth parties. Williams v. Stickman, 917 A.2d
915, 918 (Pa. Cmwlth. 2007)[.] . . . Therefore, . . . actions
for damages based on negligence in the prison
employees’ handling of an inmate’s personal property
that is under their care, custody or control are not
barred by sovereign immunity.
Owens v. Commonwealth, (Pa. Cmwlth. No. 2624 C.D. 2015, filed Sept. 23, 2016),
slip op. at 4-5 (emphasis added; citations and footnote omitted).
Here, Scott has alleged with specificity that Jones and George were
responsible for safeguarding his property and negligently failed to do so by directing
inmates to pack his property and allowing them access thereto, which resulted in the
loss. Because the Sovereign Immunity Act does not bar an action in negligence for
damages arising from the care of property in the possession of the Commonwealth,
this Court overrules Department Respondents’ preliminary objections with respect
to Scott’s negligence claims against Jones and George.
IV. Department Respondents’ Preliminary Objection - Fourteenth
Amendment Due Process Violation
Department Respondents assert that Scott’s due process claim must be
dismissed because the Department afforded Scott a meaningful post-deprivation
remedy by way of the grievance process. Scott responds that he was not offered any
confiscation slips to challenge his allegedly excessive amount of permitted property.
The Fourteenth Amendment to the [U.S.] Constitution
provides, in relevant part, that no “State [shall] deprive any
person of life, liberty, or property, without due process of
12
law.” U.S. CONST. amend. XIV, § 1. To maintain a due
process challenge, a party must initially establish the
deprivation of a protected liberty or property interest. If,
and only if, the party establishes the deprivation of a
protected interest, will the Court consider what type of
procedural mechanism is required to fulfill due process.
....
“The amount of process due depends on the context
presented.” Silo v. Ridge, 728 A.2d 394, 399 (Pa. Cmwlth.
1999). It is now a bedrock principle that post-deprivation
remedies satisfy the due process clause where the situation
dictates that the [s]tate take immediate action or it is
impracticable to provide any meaningful pre-deprivation
process. When a prison official confiscates a prisoner’s
property in an allegedly unauthorized way, whether it be
negligently or intentionally, due process requires only the
existence of an adequate post-deprivation remedy because
it is not feasible for a prison to provide a hearing prior to
taking property that is perceived to be contraband or
against prison regulations.
In addressing the issue, the courts have repeatedly held
that inmate grievance systems are an adequate post-
deprivation remedy[.]
Shore v. Pa. Dep’t of Corr., 168 A.3d 374, 383 (Pa. Cmwlth. 2017) (emphasis added;
citations omitted).
Here, Scott acknowledged in his Petition that he filed a grievance with
respect to his lost property claim and filed appeals from the denial thereof.17
17
Notably, Manager Kelly did not deny Scott’s grievance based on the alleged excessive
amount of property. Rather, Manager Kelly explained:
Staff followed established policy and procedures. Based on
documentation completed by staff packing Scott’s property, Scott’s
claim to missing commissary items [] cannot be verified. Monthly
account statements and commissary receipts prove items/property
were purchased but does not substantiate [Scott’s] claim the
items/property were in his possession at the time of alleged incident.
His request for relief is denied.
13
Accordingly, this Court sustains Department Respondents’ preliminary objection
with respect to Scott’s Fourteenth Amendment claim against all Department
Respondents.
Conclusion
For all of the above reasons, A.G. Shapiro’s and Department
Respondents’ preliminary objections with respect to Scott’s Monell and civil rights
claims are sustained. Further, with respect to Scott’s negligence claims, Department
Respondents’ preliminary objections as to Governor Wolf, Secretary Wetzel,
Manager Kelly and Superintendent Smith are sustained. Department Respondents’
preliminary objection with respect to Scott’s Fourteenth Amendment due process
claim is sustained and the claim is dismissed. Finally, with respect to Jones and
George, Department Respondents’ preliminary objections to Scott’s negligence
claim are overruled. A.G. Shapiro, Governor Wolf, Secretary Wetzel,
Superintendent Smith and Manager Kelly are dismissed from this action.
_________________________________
ANNE E. COVEY, Judge
Initial Review Response to Grievance No. 906677 (1/11/2021) (IRR) at 2; See Petition (which
references original Petition for Review, that attached IRR therein).
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Earnest Scott, Jr., :
Petitioner :
:
v. :
:
The PA D.O.C., U/M B. Kelly,
John E. Wetzel, Sgt. Jones, :
Superintendent Barry Smith, :
Attorney General Josh Shapiro, :
Governor Tom Wolf, C/01 George, : No. 76 M.D. 2021
Respondents :
ORDER
AND NOW, this 4th day of November, 2022, the preliminary
objections of Attorney General Josh Shapiro (A.G. Shapiro) and the preliminary
objections of the Pennsylvania Department of Corrections’ (Department), State
Correctional Institution (SCI)-Houtzdale Unit Manager B. Kelly (Manager Kelly),
Department Secretary John E. Wetzel (Secretary Wetzel), Sergeant Jones (Jones),
SCI-Houtzdale Superintendent Barry Smith (Superintendent Smith), Governor Tom
Wolf (Governor Wolf), and Corrections Officer George (George), (collectively,
Department Respondents) with respect to Earnest Scott Jr.’s (Scott) claim pursuant
to Monell v. Department of Social Services, 436 U.S. 658 (1978), and Scott’s claims
under Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. §1983, are
SUSTAINED.
With respect to Scott’s negligence claims, Department Respondents’
preliminary objections as to Governor Wolf, Secretary Wetzel, Manager Kelly and
Superintendent Smith are SUSTAINED. With respect to Jones and George,
Department Respondents’ preliminary objections to Scott’s negligence claim are
OVERRULED. Department Respondents’ preliminary objection with respect to
Scott’s Fourteenth Amendment due process claim is SUSTAINED and that claim is
DISMISSED. A.G. Shapiro, Governor Wolf, Secretary Wetzel, Superintendent
Smith and Manager Kelly are DISMISSED from this action.
Jones and George shall file an answer to Scott’s Second Amended
Petition for Review within twenty (20) days of the date of this Order.
_________________________________
ANNE E. COVEY, Judge