R.E. Johnson v. G.M. Little, Secretary PA DOC ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ronnie E. Johnson, :
Appellant :
:
v. :
:
George M. Little, Secretary :
Pennsylvania Department of :
Corrections; Sergeant Dobish; :
Correctional Officer I Pritchet; : No. 881 C.D. 2022
C.O. III C. DiSalvo : Submitted: June 5, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: July 6, 2023
Ronnie E. Johnson (Appellant) appeals pro se from the July 11, 2022
order of the Court of Common Pleas of Fayette County (trial court), which dismissed
his complaint (Complaint) against George M. Little, Secretary Pennsylvania
Department of Corrections; Sergeant Dobish; Correctional Officer I Pritchet; and
Correctional Officer III DiSalvo (collectively, Appellees).1 Upon review, we affirm.
1
As they had not been served with the Complaint prior to the trial court’s dismissal of this
action, Appellees filed no brief in this appeal. See Letter from Pennsylvania Department of
Corrections’ Chief Counsel to Commonwealth Court dated January 18, 2023.
On July 6, 2022, Appellant filed the Complaint with the trial court
purporting to raise claims of discrimination and failure to accommodate under the
Americans With Disabilities Act (ADA)2 based on allegations that prison personnel
denied him outdoor exercise and access to asthma medication during a period of
solitary confinement while imprisoned at State Correctional Institution-Fayette. See
generally Complaint. Specifically, Appellant claims that he is disabled under the
ADA by virtue of suffering from asthma, and that Appellees had knowledge of this
alleged disability. See Complaint at 3-4. Appellant also alleges that Appellees have
treated him differently from prisoners without asthma in that he has been denied
outdoor recreation, denied timely access to medical care (asthma inhaler), subjected
to increased discipline by not being allowed onto the prison exercise yard, and
subjected to increased supervision when on the yard. See id. at 4. The Complaint
further alleges that Appellees refused to provide him with timely medical assistance
while Appellant was having an asthma attack and refused to provide him with
accommodations that would allow Appellant to have the same amount of medical
care and exercise yard time as other prisoners who do not have asthma. See id. at 5.
Prior to service of the Complaint on Appellees, on July 11, 2022, the
trial court issued an order (Trial Court Order) dismissing the Complaint “on the basis
that it is frivolous and that [Appellees] are entitled to assert the valid affirmative
defense of [s]overeign [i]mmunity, which, if asserted would preclude relief.” Trial
Court Order at 1. Because Appellees were acting within the scope of their
employment in reference to the claims of the Complaint, the trial court based its
dismissal on an immunity defense allowing dismissal pursuant to Section 6602(e) of
2
42 U.S.C. §§ 12101-12213.
2
the act known as the Prison Litigation Reform Act (PLRA), Act of June 18, 1998,
P.L. 640, No. 84, as amended, 42 Pa.C.S. § 6602(e)(2), which provides:
Notwithstanding any filing fee which has been paid, the
court shall dismiss prison conditions litigation at any time,
including prior to service on the defendant, if the court
determines . . . [t]he prison conditions litigation is
frivolous or malicious or fails to state a claim upon which
relief may be granted or the defendant is entitled to assert
a valid affirmative defense, including immunity, which, if
asserted, would preclude the relief.
42 Pa.C.S. § 6602(e)(2). Appellant appealed to this Court.3
Appellant raises two claims on appeal. First, Appellant claims that the
trial court erred by dismissing the Complaint as frivolous because he stated a claim
under the ADA. See Appellant’s Br. at 4, 8-9. Second, Appellant claims the trial
court erred by misinterpreting his ADA claim as a property issue. See id. at 4, 10-
11.
Initially, we observe that, “prison conditions litigation” is defined as:
A civil proceeding arising in whole or in part under
Federal or State law with respect to the conditions of
confinement or the effects of actions by a government
party on the life of an individual confined in prison. The
term includes an appeal. The term does not include
criminal proceedings or habeas corpus proceedings
challenging the fact or duration of confinement in prison.
3
“Our scope of review of the trial court’s order is plenary where the trial court dismisses a
complaint sua sponte for failure to state a cause of action upon which relief may be granted.”
Whitaker v. Wetzel, 170 A.3d 568, 572 n.3 (Pa. Cmwlth. 2017). “As our inquiry involves solely
questions of law, our standard of review is de novo.” Jae v. Good, 946 A.2d 802, 806 n.4 (Pa.
Cmwlth.), appeal denied, 959 A.2d 930 (Pa. 2008), cert. denied, 555 U.S. 1156 (2009); see also
Payne v. Dep’t of Corr., 871 A.2d 795, 800 (Pa. 2005).
3
Bailey v. Miller, 943 A.2d 1007, 1009 (Pa. Cmwlth. 2008) (internal citation omitted)
(emphasis added).
By making claims against prison officials regarding Appellant’s access
to outdoor exercise and specific complaints about not timely providing access to an
asthma inhaler, Appellant’s claims constitute prison conditions litigation. See
McCool v. Dep’t of Corr., 984 A.2d 565, 569 (Pa. Cmwlth. 2009) (holding that
“[b]ecause the complaint challenges the quality of medical care at the prison, it
squarely fits the definition of prison conditions litigation” covered by the PLRA
definition, which included “the effects of actions by a government party on the life
of an individual confined in prison.” (quoting 42 Pa.C.S. § 6601)). As such, the
Complaint is subject to Section 6602(e)(2) of the PLRA, which allows dismissal of
such litigation where the complaint “fails to state a claim upon which relief may be
granted, or that the defendant is entitled to assert a valid affirmative defense, which,
if asserted, would preclude the relief.” Bailey, 943 A.2d at 1009 (internal citation
omitted); see also McCool, 984 A.2d at 570; 42 Pa.C.S. § 6602(e). “Accordingly,
the defense of sovereign immunity can provide a basis for dismissal of a prison
conditions lawsuit.” McCool, 984 A.2d at 570.
Here, in explaining its dismissal of the Complaint under Section
6602(e) of the PLRA, the trial court stated:
[Appellant] did not allege that [Appellees] acted outside
the scope of their employment; nor did he assert that the
actions of [Appellees] fit into any of the exceptions to
[s]overeign [i]mmunity. Therefore, since [Appellant] did
not aver that [Appellees] were acting outside the scope of
their duties, and since [Appellant] did not aver that
[Appellees’] actions were within any exception to
[s]overeign [i]mmunity, [the trial court] determined that
4
[Appellant’s] Complaint lacked an arguable basis in law
and fact.
Trial Court’s Statement In Lieu of Opinion filed November 9, 2022 (citation
omitted).
We agree with the trial court’s assessment. Section 2310 of the
Pennsylvania Consolidated Statutes, 1 Pa.C.S. § 2310, provides:
Pursuant to section 11 of Article [I] of the Constitution of
Pennsylvania, [Pa. Const. art. I, § 11,] it is hereby declared
to be the intent of the General Assembly that the
Commonwealth, and its officials and employees acting
within the scope of their duties, shall continue to enjoy
sovereign immunity and official immunity and remain
immune from suit except as the General Assembly shall
specifically waive the immunity. When the General
Assembly specifically waives sovereign immunity, a
claim against the Commonwealth and its officials and
employees shall be brought only in such manner and in
such courts and in such cases as directed by the provisions
of Title 42 . . . .
1 Pa.C.S. § 2310. Thus, under the doctrine of sovereign immunity, “[t]he
Commonwealth is immune from suit in tort, and this immunity extends to employees
of the Commonwealth who are not high public officials . . . when they act within the
scope of their employment and not in an intentionally malicious, wanton or reckless
manner.” McCool, 984 A.2d at 570 (quoting Walter v. Commonwealth, 350 A.2d
440, 442 (Pa. Cmwlth. 1976)) (internal brackets and quotation marks omitted). An
action for intentional misconduct is barred by sovereign immunity where a
Commonwealth actor acted within the scope of his employment. See La Frankie v.
Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992). “To be within the scope of
5
employment, the conduct must be of the same general nature as that authorized or
incidental to the conduct authorized, occurring substantially within the authorized
time, and done to serve the employer.” Robertson v. Zaken (Pa. Cmwlth., No. 1111
C.D. 2019, filed December 22, 2021),4 slip op. at 9. Without developing the
argument, Appellant claims that the trial court’s view of the inhaler as personal
property for determining that the correction officers were acting in the scope of their
employment when depriving Appellant of its use for any period of time was error.
Specifically, the trial court stated: “[r]egulating and confiscating inmate property
falls squarely within the scope of a corrections officer’s duties.” Trial Court Order
at 1-2. However, such error is harmless because even if the inhaler is viewed in the
medical context, and not simply as Appellant’s personal property, Appellees are
alleged to have acted within the scope of their employment relative to the inhaler.
Here, determining when to provide an inmate access to medication through an
inhaler or to contact a nurse or medical personnel falls squarely within the scope of
the correctional officers’ duties. Further, with regard to the denial of time spent
outdoors, such act is also within the scope of the employment of all named
Appellees. We note:
changes in a prisoner’s location, variations of daily
routine, changes in conditions of confinement (including
administrative segregation), and denials of privileges—
matters which every prisoner can anticipate are
contemplated by his original sentence to prison—are
necessarily functions of prison management that must be
left to the broad discretion of prison officials.
4
Pursuant to Commonwealth Court Internal Operating Procedure Section 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.
6
Lopez v. Pa. Dep’t of Corr., 119 A.3d 1081, 1085 (Pa. Cmwlth. 2015), aff’d sub
nom. Lopez v. Wetzel, 144 A.3d 92 (Pa. 2016).
Sovereign immunity may be waived, however. As this Court has
explained:
[a] party may proceed against a Commonwealth agency if
it can establish that damages would have been recoverable
under common law (or a statute creating a cause of action)
had the injury been caused by a defendant not protected by
sovereign immunity. 42 Pa.C.S. § 8522(a). Additionally,
the alleged negligent act must fall within one of the
specifically enumerated exceptions provided by the
legislature.
McCool, 984 A.2d at 570 (quoting LaChance v. Michael Baker Corp., 869 A.2d
1054, 1057 (Pa. Cmwlth. 2005)). Regarding enumerated exceptions, the General
Assembly has waived sovereign immunity for Commonwealth parties for claims
involving: (1) vehicle liability; (2) medical-professional liability; (3) care, custody
or control of personal property; (4) Commonwealth real estate, highways, and
sidewalks; (5) potholes and other dangerous conditions; (6) care, custody, or control
of animals; (7) liquor store sales; (8) National Guard activities; (9) toxoids and
vaccines; and (10) sexual abuse. See 42 Pa.C.S. § 8522(b).
Here, the Complaint makes no claim against prison medical officials
for medical professional liability, and none of Appellees are identified as medical
personnel. The Complaint’s allegations that Appellees engaged in the intentional
conduct of disallowing him an asthma inhaler and access to outdoor exercise do not
fall under any of the exceptions to sovereign immunity enumerated by the General
Assembly, see 42 Pa.C.S. § 8522(b), and the Complaint does not assert otherwise.
Additionally, the Complaint does not aver that Appellees were at any time acting
7
outside of the scope of their official duties. Because the Complaint makes no
allegations that Appellees acted outside of the scope of their duties or otherwise
pleaded an exemption to sovereign immunity, Appellees continue to enjoy sovereign
immunity, which precludes the relief sought by Appellant to the extent the matter
concerns prison conditions.
In addition, to the extent Appellant seeks to assert claims under the
ADA, this Court has explained:
The ADA prohibits discrimination against qualified
individuals with disabilities. Specifically, the ADA
prohibits the exclusion of otherwise qualified participants
from any program or benefits of a public entity on account
of their disability. 42 U.S.C. § 12132. A disability is
defined as “(A) a physical or mental impairment that
substantially limits one or more major life activities of
such individual; (B) a record of such an impairment; or (C)
being regarded as having such an impairment. . . .” 42
U.S.C. § 12102(1). A “public entity” is “any State or local
government. . . .” 42 U.S.C. § 12131(1)(A).
In order to prevail on a claim for a violation of the ADA,
a plaintiff must show that: (1) he is a qualified individual
with a disability; (2) he is either excluded from or
otherwise denied the benefits of some public entity’s
services, programs or activities, or was otherwise
discriminated against by the public entity; and[] (3) he was
excluded from the program based solely on his disability.
Mattis v. Pa. Dep’t of Corr. (Pa. Cmwlth., No. 1929 C.D. 2013, filed May 20, 2014),
slip op. at 10-11 (some internal citations omitted). The ADA defines the term
“public entity” to mean:
(A) any State or local government;
8
(B) any department, agency, special purpose district, or
other instrumentality of a State or States or local
government; and
(C) the National Railroad Passenger Corporation, and any
commuter authority (as defined in section 24102(4) of
Title 49).
42 U.S.C. § 12131. “Under the ADA, individuals have no liability because they are
not ‘public entities.’” Mattis, slip op. at 11 (citing Watson v. Pa. Dep’t of Corr., 990
A.2d 164 (Pa. Cmwlth. 2010)). The Department of Corrections is not a named
defendant in this matter. Those individuals named in the Complaint are not public
entities and cannot be held liable for discrimination or failure to provide an
accommodation under the ADA.
For the above reasons, the trial court properly dismissed the Complaint
and we affirm the Trial Court Order.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ronnie E. Johnson, :
Appellant :
:
v. :
:
George M. Little, Secretary :
Pennsylvania Department of :
Corrections; Sergeant Dobish; :
Correctional Officer I Pritchet; : No. 881 C.D. 2022
C.O. III C. DiSalvo :
ORDER
AND NOW, this 6th day of July, 2023, the July 11, 2022 order of the
Court of Common Pleas of Fayette County is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge