B.L. Wishnefsky v. PA DOC ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bruce L. Wishnefsky, :
Petitioner :
:
v. : No. 191 M.D. 2021
: SUBMITTED: January 27, 2023
Pennsylvania Department of :
Corrections, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: May 19, 2023
Before the Court, in our original jurisdiction, are the preliminary
objections of the Pennsylvania Department of Corrections to the pro se amended
petition for review of Petitioner Bruce L. Wishnefsky, an inmate currently
incarcerated at the State Correctional Institution (SCI) at Laurel Highlands.
Petitioner challenges the constitutionality of the Department’s mail policy, DC-
ADM 803, Inmate Mail and Incoming Publications (Policy),1 in particular the
portion requiring incoming non-privileged mail be sent to and processed by a service
provider in Florida. For the reasons that follow, we sustain the Department’s
preliminary objection in the nature of a demurrer and dismiss the amended petition.
1
The Policy can be found at www.cor.pa.gov (last visited May 18, 2023).
The pertinent facts are as follows. Prior to September 2018, all
incoming inmate mail – including both privileged and non-privileged mail – was to
be addressed and delivered directly to the mailroom at the SCI where the inmate was
housed. The SCI’s mailroom staff would search the mail and then deliver it to the
inmates. This process changed in September 2018, after the Department signed an
agreement with Smart Communications Holdings (SmartCom) to conduct its mail
scanning and processing services. The Policy2 provides that incoming privileged
mail should still be addressed and sent directly to each SCI, wherever the inmate is
located. However, all non-privileged mail should be mailed to SmartCom’s Post
Office Box in St. Petersburg, Florida. SmartCom’s staff opens and scans all non-
privileged inmate mail, and then electronically transmits the scanned copies to the
appropriate SCI staff. Non-privileged mail under the Policy includes legal mail from
attorneys representing individuals and government agencies engaged in litigation
against inmates, including Petitioner; in other words, legal mail other than that sent
by attorneys representing the inmates.
Petitioner essentially claims that the Policy delays his receipt of legal
mail and results in his having reduced time periods in which to respond to opposing
parties’ filings. As Petitioner alleges:
7. Under th[e P]olicy, legal mail from lawyers
representing persons or institutions or Pennsylvania
governmental agencies, including the [Department], who
are in litigation against [] inmates, is not privileged mail
and must be sent to SmartCom in St. Petersburg, Florida.
8. When Petitioner mails a copy of a document he has
filed in court to the [O]ffice of [C]hief [C]ounsel, or the
2
While the amended petition references a Department memorandum issued on September 7,
2018, explaining the new mail process, we note that the current Policy was issued and went into
effect in August 2020.
2
[O]ffice of [A]ttorney [G]eneral, or private counsel
representing an opposing litigation party, it is sent directly
to those attorneys and they have the normal time to
respond.
9. But when these attorneys mail a copy of their court
filings to Petitioner, they must, under [the P]olicy send
these to SmartCom in St. Petersburg, Florida, which often
results in Petitioner and other [] inmates,[3] receiving this
mail in an untimely manner, sometimes even after the
responses to the filings are due.
10. The differences in the full response time allowed to
Petitioner’s litigation opponents, including [the
Department], and the reduced response time allowed to
P[etitioner] is a violation of the procedural due process
right to be heard, and can have, and has had a fatal effect
on Petitioner’s claims against Dr. Salameh and [the
Department] and other private parties in both state and
federal court.
Am. Pet. ¶¶ 7-10 (footnote added). As for the relief sought, Petitioner requests that
all mail being sent to him during the course of litigation by the Office of Chief
Counsel, the Office of Attorney General, and private counsel be treated as privileged
mail and sent directly to him at SCI-Laurel Highlands, or wherever he may be
housed, rather than being processed through SmartCom.
The Department filed preliminary objections arguing that the amended
petition should be dismissed for lack of standing and failure to state a cognizable
claim for relief (demurrer). The Department’s objections are somewhat intertwined
as they are both based upon a lack of specificity. First, the Department argues that
Petitioner failed to plead “with any specificity that he missed a filing deadline, had
3
While the amended petition makes reference to other inmates, Petitioner has since clarified
that his claims are brought solely on his own behalf. See Pet’r’s Response to Preliminary
Objections ¶ 30. In any event, an inmate proceeding pro se may not commence a class action
lawsuit. Mobley v. Coleman, 65 A.3d 1048, 1050 n.1 (Pa. Cmwlth. 2013).
3
a case dismissed, or had a case that was harmed by the delay in receiving documents
from opposing counsel through Smart Com[].” Dep’t’s Br. at 8. Because Petitioner
failed to aver “any real and direct negative consequences” stemming from the Policy,
he has not demonstrated a substantial, immediate, and direct interest in the matter
and lacks standing. Id. at 7-8. Similarly, the Department maintains that Petitioner
has failed to plead specific facts establishing that the Policy’s requirement that his
non-privileged legal mail be processed through SmartCom violated his right to
meaningful access to the courts.4 More specifically, the amended petition should be
dismissed because Petitioner did not allege that the Policy prevented him from
pursuing a nonfrivolous and arguable claim, or caused him to lose the opportunity
to seek a particular form of relief.
Before turning to the Department’s arguments, we note that
[w]hen reviewing preliminary objections to a petition for
review in our original jurisdiction, this Court must treat as
true all well-pleaded, material and relevant facts together
with any reasonable inference[s] that can be drawn from
those facts. Courts, however, are not required to accept as
true conclusions of law, unwarranted inferences from
facts, expressions of opinion or argumentative allegations.
4
As is evident from its preliminary objections, the Department views the amended petition as
raising an access to courts claim rather than a procedural due process claim. The amended petition
repeatedly mentions the phrase “due process” and even avers that the Policy results in Petitioner
“being denied notice and the meaningful right to be heard.” Am. Pet. ¶¶ 13, 16, 19. Despite these
references, however, we agree with the Department’s interpretation of the underlying claim. The
main thrust of the amended petition is the court system and, more specifically, Petitioner’s
purported inability to respond to his adversaries’ court filings as a result of his delay in receiving
mail. There is no reference to any denial of administrative procedure by the Department, such as
through the inmate grievance system. Moreover, a claim for denial of access to the courts is
grounded, at least in part, in the concept of due process. See infra n.6. Given all of this, and
considering the substance of the amended petition, we agree with the Department’s interpretation
of the specific claim asserted herein. See Heinly v. Com., 621 A.2d 1212, 1215 n.5 (Pa. Cmwlth.
1993) (noting courts are presumed to know the law and a petitioner, in particular one proceeding
pro se, is not required to specify the legal theory underlying his action).
4
In ruling on a preliminary objection in the nature of a
demurrer, the objection is properly sustained where, based
on the facts averred, the law says with certainty that no
recovery is possible; if doubt exists, then it should be
resolved in favor of overruling the objection.
Cnty. of Berks v. Pa. Off. of Open Recs., 204 A.3d 534, 539 n.7 (Pa. Cmwlth. 2019)
(citations omitted). Further, “‘courts reviewing preliminary objections may not only
consider the facts pled in the [petition for review in the nature of a] complaint, but
also any documents or exhibits attached to it.’ Allen v. Dep’t of Corr., 103 A.3d
365, 369 (Pa. Cmwlth. 2014).” Foxe v. Pa. Dep’t of Corr., 214 A.3d 308, 310 n.1
(Pa. Cmwlth. 2019).
We begin with the Department’s demurrer. While a prisoner’s right to
access the courts is derived from an express provision of the Pennsylvania
Constitution5 and multiple provisions of the United States Constitution,6 the analysis
under both federal and state law is the same. See, e.g., Bronson v. Horn, 830 A.2d
1092, 1094-95 (Pa. Cmwlth. 2003).
[I]n order to state a cognizable claim for violation of the
right to access to the courts, a prisoner must allege and
offer proof that he suffered an “actual injury” to court
access as a result of the denial. Oliver v. Fauver, 118 F.3d
175, 177-78 (3d Cir. 1997). The [United States] Supreme
Court has defined actual injury as the loss or rejection of a
nonfrivolous legal claim regarding [] sentencing or the
conditions of confinement. Lewis v. Casey, 518 U.S. 343[]
(1996).
5
Pa. Const. art. I, § 11 (“All courts shall be open; and every man for an injury done him in his
lands, goods, person or reputation shall have remedy by due course of law, and right and justice
administered without sale, denial or delay.”).
6
See Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002) (discussing First Amendment’s
petition clause, U.S. Const. amend. I, and Fourteenth Amendment’s equal protection and due
process clauses, U.S. Const. amend. XIV, as sources of prisoners’ right to access the courts).
5
Hackett v. Horn, 751 A.2d 272, 275-76 (Pa. 2000). Therefore, at a minimum,
Petitioner would have needed to (1) allege he had a nonfrivolous, arguable
underlying claim, and (2) describe how the Policy frustrated his ability to pursue that
claim. See Christopher v. Harbury, 536 U.S. 403, 415-16 (2002) (“Like any other
element of an access claim, the underlying cause of action and its lost remedy must
be addressed by allegations in the [petition for review] sufficient to give fair notice
to a defendant.”); see also Lewis, 518 U.S. at 351 (“the inmate therefore must go one
step further and demonstrate that the alleged shortcomings in the [Policy] hindered
his efforts to pursue a legal claim”).
Here, the amended petition fails to identify a nonfrivolous, arguable
underlying claim that was lost due to the delay in Petitioner’s mail caused by the
Policy. Petitioner’s general reference to “claims against Dr. Salameh and [the
Department]” is insufficient to put the Department on notice of how the Policy
allegedly burdened Petitioner’s rights. Am. Pet. ¶ 10. Moreover, Pennsylvania rules
require fact-pleading and Petitioner’s inability to identify any deadlines he missed
or how he was prevented from filing particular pleadings due to the Policy is fatal to
his claim. See Pa.R.Civ.P. 1019(a) (“The material facts on which a cause of action
or defense is based shall be stated in a concise and summary form.”). Therefore, we
agree with the Department that the amended petition fails to state a viable access to
courts claim because Petitioner failed to offer any facts7 as to the specific harm he
7
In his response and brief in opposition to the preliminary objections, Petitioner mentions
several prior cases he was involved in and claims that he purportedly lost due to delays in receiving
his mail. However, because this information was not included in or appended to the amended
petition, it was not properly pled and cannot be considered by the Court. See Foxe; Cnty. of Berks.
6
suffered.8 See Sierra v. Pa. Dep’t of Corr. (Pa. Cmwlth., No. 88 M.D. 2019, filed
Oct. 6, 2021) (holding prisoner failed to state a viable access to courts claim due to
failure to plead specific harm); Young v. Wetzel (Pa. Cmwlth., No. 792 C.D. 2020,
filed Mar. 16, 2021) (same);9 see also Ortiz v. Pa. Dep’t of Corr. (Pa. Cmwlth., No.
615 M.D. 2018, filed Sept. 14, 2021), slip op. at 7 (noting “courts have made it clear
that the protections afforded privileged mail and access to the courts are greater than
those for non-privileged mail,” and finding prisoner “failed to demonstrate a
constitutional violation at issue”).10
Accordingly, we sustain the Department’s demurrer and dismiss the
amended petition.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
8
The Department characterizes the amended petition as a mandamus action. In his response
and brief in opposition to the preliminary objections, Petitioner asserts that he is not seeking
mandamus but rather injunctive relief. Regardless of how the underlying action is characterized,
the amended petition fails to state a cognizable claim for relief.
9
Unreported panel decisions of this Court may be cited for their persuasive value pursuant to
Rule 126(b)(1) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 126(b)(1), and
Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). This
Court’s decisions in Sierra and Young are particularly persuasive as they both concern access to
the courts claims stemming from the Policy at issue here.
10
Given our disposition, we need not reach the Department’s remaining preliminary objection.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bruce L. Wishnefsky, :
Petitioner :
:
v. : No. 191 M.D. 2021
:
Pennsylvania Department of :
Corrections, :
Respondent :
ORDER
AND NOW, this 19th day of May, 2023, the Preliminary Objection of
the Pennsylvania Department of Corrections in the nature of a demurrer is
SUSTAINED. The Amended Petition for Review is DISMISSED with prejudice.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita