M.K. Ortiz v. Pa. DOC ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mac Kenneth Ortiz, :
Petitioner :
:
v. : No. 615 M.D. 2018
: Submitted: October 2, 2020
Pa. Department of Corrections, :
John Wetzel - Secretary of Corrections, :
Pa. Attorney General’s Office :
Superintendant: Lee E-Stock of :
S.C.I. Pine Grove, Johnstown :
United States Postal Service Branch, :
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge1
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: September 14, 2021
This is a matter in the Court’s original jurisdiction. Petitioner Mac Kenneth
Ortiz (Ortiz), an inmate at the State Correctional Institution at Pine Grove (SCI-Pine
Grove),2 filed his Petition, pro se, seeking an injunction to stay further
implementation of a new inmate mail policy (hereafter, mail policy) by the
Pennsylvania Department of Corrections (DOC), DOC Secretary John Wetzel, and
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson
became President Judge.
2
At all times relevant to the matters set forth in Ortiz’s petition for review (Petition), Ortiz
was an inmate at SCI-Pine Grove. In or about February 2021, however, Ortiz was transferred from
SCI-Pine Grove to the State Correctional Institution at Houtzdale (SCI-Houtzdale).
Lee Estock, Superintendent at SCI-Pine Grove (Superintendent Estock),3
(collectively, DOC Respondents).4 Presently before the Court for disposition is the
DOC Respondents’ application for special relief in the nature of a motion for
judgment on the pleadings (Motion). For the reasons set forth below, we grant the
DOC Respondents’ Motion and dismiss Ortiz’s Petition with prejudice.
In his Petition, Ortiz alleges that DOC’s mail policy imposes an
unconstitutional burden on his right to receive his mail and his right to privacy in his
mail, because the original versions of his mail are sent to a third-party vendor where
they are copied, and Ortiz, thereafter, receives the copies rather than the original
documents. (Pet. ¶¶ 1-4, 11.) Ortiz claims this occurs with both his privileged
(legal) mail from attorneys and the courts and his non-privileged mail from his
family and friends. (Pet. ¶ 1.) Specifically, Ortiz alleges:
1. . . . [DOC] has violated the [c]onstitutional [r]ights of [Ortiz], by
prohibiting [Ortiz from receiving] the original mail from family
and friends, as well as that from [a]ttorneys (i.e.[,] subscriptions,
photos, letters, etc.) and [c]ourts.
....
3. [DOC Respondents] have all conspired to [sic] [c]ustodial
[i]nterference, by restricting the delivery of original legal
documents, and providing photo copies without anyone to legally
certify that the documents are original.
....
3
In both his Petition and the caption for this matter, Ortiz incorrectly identified
Superintendent Estock as “Superintendant Lee E-Stock.” Throughout the remainder of this
opinion, we will continue to utilize the correct spelling of Superintendent Estock’s name.
4
Ortiz also named the Pennsylvania Office of Attorney General (OAG) as a respondent in
this matter. By order dated January 16, 2019, however, in response to OAG’s preliminary
objection alleging misjoinder and Ortiz’s motion to withdraw due to defective joinder, this Court
sustained OAG’s preliminary objection and dismissed OAG as a respondent.
2
11. [Ortiz] avers that [he] has a specific legal security interest in [the]
privacy of [his] mail, which the [DOC Respondents] can[]not
guarantee.
(Pet. ¶¶ 1, 3, 11.) Ortiz further claims that DOC’s justification for the mail policy—
to counter a sudden influx of opioids and synthetic cannabinoids into Pennsylvania’s
state correctional institutions—is unsupported by the evidence. (Pet. ¶¶ 5-8.)
According to Ortiz, DOC, therefore, exceeded its authority by implementing the mail
policy. (Pet. ¶ 10.) For all these reasons, Ortiz seeks injunctive relief to prevent
further implementation of the mail policy.
On July 3, 2019, the DOC Respondents filed an answer with new matter to
Ortiz’s Petition.5 Therein, the DOC Respondents aver that the mail policy is
constitutional as it relates to non-privileged mail because: (1) Ortiz does not have a
constitutional right to receive the original copies of his non-privileged mail; (2) the
mail policy does not violate Ortiz’s right to privacy—i.e., the non-privileged mail is
only diverted and copied but not read; and (3) the mail policy does not prevent Ortiz
from communicating with his family, friends, attorneys, or the courts. (Answer with
New Matter ¶¶ 21-23, 28, 30.) With respect to privileged mail, the DOC
Respondents aver that DOC entered into a court-approved settlement agreement in
federal court, whereby the DOC Respondents “agreed to cease any copying of
5
The DOC Respondents first responded to Ortiz’s Petition with preliminary objections,
alleging lack of proper service, legal insufficiency, and lack of jurisdiction over Superintendent
Estock, a non-statewide officer. Subsequent thereto, at this Court’s direction, Ortiz served his
Petition on the DOC Respondents by certified mail as required by Pennsylvania Rule of Appellate
Procedure 1514(c). As a result, by order dated December 19, 2018, this Court overruled the DOC
Respondents’ preliminary objection alleging lack of proper service. With respect to the DOC
Respondents’ preliminary objection alleging legal insufficiency, the DOC Respondents decided to
reserve the issue of the constitutionality of the mail policy until a more complete record could be
created. In a memorandum opinion filed on June 6, 2019, this Court overruled the DOC
Respondents’ preliminary objection relative to jurisdiction over Superintendent Estock and
directed the DOC Respondents to file an answer to Ortiz’s Petition.
3
privileged correspondence and to continue to use the attorney control number
system.”6 (Id. ¶¶ 33-34.) The DOC Respondents, therefore, claim that the mail
policy, as modified by the court-approved settlement agreement, does not violate
Ortiz’s right to privacy, as Ortiz’s privileged mail is not copied and the originals are
given directly to him. (Id. ¶¶ 31, 38.) The DOC Respondents further aver that, even
if there were a constitutional violation at issue, the mail policy would, nevertheless,
be permissible because it is reasonably related to legitimate penological interests,
“including the reduction of the entry of drugs into the state correctional institutions,
namely opioids and synthetic cannabinoids.” (Id. ¶¶ 21, 24.)
Subsequent thereto, on September 6, 2019, Ortiz filed a responsive pleading
to the DOC Respondents’ answer with new matter. In his answer, Ortiz claims that
DOC has failed to prove it had the authority to enact the mail policy. (Ortiz’s
Answer ¶¶ 1-2.) Ortiz further alleges that the mail policy is unconstitutional as being
more restrictive than necessary to accomplish the alleged goal of inmate and staff
safety, as he claims there is no evidence that incoming mail is the cause of any staff
or inmate contamination. (Id. ¶¶ 2, 5, 7.) Ortiz also admits that, as of April 2019,
the mail policy was amended to allow inmates to receive the original copies of their
privileged mail after inspection and that his privileged mail is no longer being
6
The attorney control number system is set forth in the mail policy, as modified, which
provides that attorneys, courts, or other elected or appointed state or federal government officials
may apply for a unique control number to transmit confidential and/or privileged communication
directly to an inmate. (Answer with New Matter, Exhibit “B,” at 1-10, 1-11.) Once a control
number is obtained, correspondence sent to an inmate must have the control number affixed to the
front of the envelope, and the envelope must also display the relevant DOC-issued weekly time
code. (Id. at 1-11.) Incoming correspondence affixed with a valid control number and time code
is then subjected to x-ray imaging and K-9 air scans, but the mail is not opened by mailroom staff,
and the original, unopened mail is provided directly to the inmate. (Id. at 1-11, 1-12, 1-13.)
4
copied. (Id. at 1-2.)7 Ortiz did not, however, respond to the vast majority of the
factual averments set forth in the DOC Respondents’ answer with new matter
(paragraphs 21 through 45), including those averments concerning the modifications
to the mail policy as it relates to privileged mail—i.e., that privileged mail is no
longer copied and the originals are provided directly to the inmate.
After the close of the pleadings, the DOC Respondents filed their Motion. In
their Motion, the DOC Respondents contend that, in light of Ortiz’s multiple
admissions—i.e., his failure to respond to the factual averments set forth in
paragraphs 21 through 45 of their answer with new matter—they are entitled to
judgment as a matter of law because, inter alia: (1) Ortiz cannot prove that the mail
policy violates any of his constitutional rights; (2) this Court does not have
jurisdiction over cases that do not involve DOC’s limitation or violation of an
inmate’s constitutional rights; and (3) even if Ortiz could prove that the mail policy
violates his constitutional rights and that this Court has jurisdiction, the mail policy
survives constitutional scrutiny, as it is reasonably related to legitimate penological
interests, namely the reduction of the entry of opioids and synthetic cannabinoids
into Pennsylvania’s state correctional institutions. (Motion ¶¶ 6-8.)
A motion for judgment on the pleadings should be granted only where the
pleadings demonstrate there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. Parish v. Horn, 768 A.2d 1214, 1215 n.1
(Pa. Cmwlth. 2001), aff’d, 800 A.2d 294 (Pa. 2002). We must view the non-moving
party’s allegations as true, but only those facts specifically admitted by the
non-moving party may be considered against him. Casner v. Am. Fed’n of State,
In his reply to new matter, Ortiz included a section entitled “Case History” that contained
7
unnumbered paragraphs. This is a citation to that section of Ortiz’s reply.
5
Cnty. & Mun. Emps., 658 A.2d 865, 869 (Pa. Cmwlth. 1995). In conducting this
inquiry, we must consider only the pleadings themselves and any documents or
exhibits properly attached thereto. Id.The United States Supreme Court’s decision in Turner v.
Safley, 482 U.S. 78 (1987), set forth the legal standard that governs our review of
the mail policy. The Supreme Court emphasized in the opinion that, while courts
“must take cognizance of the valid constitutional claims of prison inmates,” the
judicial branch is, nevertheless, ill-equipped to deal with the urgent issues inherent
in prison administration.8 See Turner, 482 U.S. at 84-85. In recognition of these
principles, the Turner Court held that a prison regulation that infringes upon
inmates’ constitutional rights will still be valid so long as the regulation is reasonably
related to legitimate penological interests. Id. at 89. Our threshold task, therefore,
is to determine whether the mail policy infringes upon Ortiz’s constitutional rights;
if we conclude that it does, then we must consider whether the mail policy is,
nonetheless, reasonably related to legitimate penological interests. Brown v. Pa.
Dep’t of Corr., 932 A.2d 316, 317-20 (Pa. Cmwlth. 2007); Jones v. Brown, 461 F.3d
353, 358 (3d Cir. 2006).
In Bussinger v. Department of Corrections, 29 A.3d 79 (Pa. Cmwlth. 2011),
aff’d, 65 A.3d 289 (Pa. 2013), this Court recognized two constitutional rights
8
The United States Supreme Court further noted:
Running a prison is an inordinately difficult undertaking that requires expertise,
planning, and the commitment of resources, all of which are peculiarly within the
province of the legislative and executive branches of government. Prison
administration is, moreover, a task that has been committed to the responsibility of
those branches, and separation of powers concerns counsel a policy of judicial
restraint.
Turner, 482 U.S. at 84-85.
6
concerning an inmate’s mail under the First Amendment to the United States
Constitution. First, the right of access to the courts is implicated in cases concerning
limitations on an inmate’s right to send and receive privileged mail,9 because
“[i]nmates have a ‘fundamental constitutional right of access to the courts.’”
Bussinger, 29 A.3d at 84 (quoting Bronson v. Horn, 830 A.2d 1092, 1095-96 (Pa.
Cmwlth. 2003), aff’d, 848 A.2d 917 (Pa.), cert. denied, 543 U.S. 944 (2004)).
Next, we noted that courts have long interpreted the First Amendment as
guaranteeing inmates a general right to communicate by mail. Id. at 84-85 (citing
Turner, 482 U.S. at 91-93). Most of the precedent in this arena concerns privileged
mail, however, and the courts have made it clear that the protections afforded
privileged mail and access to the courts are greater than those for non-privileged
mail. See, e.g., Fontroy v. Beard, 559 F.3d 173, 174 (3d Cir. 2009) (“constitutional
obligations require . . . DOC to take additional measures” in handling privileged
mail); Jones v. N.C. Prisoners’ Lab. Union, Inc., 433 U.S. 119, 130-31 (1977)
(upholding restriction on non-privileged bulk mailings); Turner, 482 U.S. 91-93
(upholding restriction on non-privileged inmate-to-inmate correspondence).
As it concerns non-privileged mail, we conclude that Ortiz has failed to
demonstrate a constitutional violation at issue. As we have observed, the First
Amendment to the United States Constitution only guarantees a general right to
communicate by mail. It does not ensure that Ortiz will receive the original copies
of his mail or that Ortiz has a right of privacy with respect to his non-privileged mail
equivalent to that of privileged mail. See Bussinger, 29 A.3d at 84-85. Thus, Ortiz
has not raised any constitutional implications with regard to his non-privileged mail,
9
Privileged mail is defined as privileged correspondence between an inmate and his/her
attorney, as well as confidential court mailings. See Bussinger, 29 A.3d at 91; Brown, 932 A.2d
at 318.
7
because he has not alleged that he is not receiving the mail in its entirety—i.e., his
general right to communicate by mail has not been affected by the mail policy.
DOC’s mail policy relative to privileged mail requires further consideration.
This Court has previously held that the inspection of privileged mail outside the
presence of an inmate violates the privacy of the communication and, hence,
infringes upon the inmate’s right to freedom of speech. Brown, 932 A.2d at 317-19.
There is no question that, at least initially, the mail policy required that privileged
mail was to be opened and copied outside the presence of the inmate and then only
the copy was to be forwarded to the inmate. In their answer with new matter,
however, the DOC Respondents have asserted that, since the time that Ortiz filed his
Petition, DOC has abandoned that aspect of the mail policy and has reverted to a
control numbering system that protects the privacy of an inmate’s privileged
communications. Through his answer, Ortiz has admitted to these facts.
Pennsylvania Rule of Civil Procedure No. 1029(b) provides: “Averments in
a pleading to which a responsive pleading is required[—i.e., averments of fact—]are
admitted when not denied specifically or by necessary implication.” See also Fox v.
Pocono Springs Civic Ass’n, Inc., 695 A.2d 484, 485 n.1 (Pa. Cmwlth. 1997)
(“Failure of a party to answer [n]ew [m]atter permits [a] trial court to treat averments
contained therein as admitted and authorizes judgment on the pleadings.”). Here,
Ortiz did not respond to paragraphs 21 through 45 of the DOC Respondents’ new
matter. This included the DOC Respondents’ averments relative to the
court-approved settlement, whereby the DOC Respondents “agreed to cease any
copying of privileged correspondence and to continue to use the attorney control
number system.” (See Answer with New Matter ¶¶ 33-34.) While we are mindful
of the fact that we do not hold pleadings drafted by pro se complainants to the same
8
stringent standards expected of pleadings drafted by lawyers, Madden v.
Jeffes, 482 A.2d 1162, 1165 (Pa. Cmwlth. 1984), Ortiz’s reply to the new matter
further provides: “As of April[] 2019[,] the [DOC] Respondents amended their
[mail policy], permitting []an [i]nmate to directly receive their original privileged
mail, after inspection, and such [mail] is not being copied.” (Ortiz’s Answer at 1-2.)
Ortiz, thus, similarly admits to the change in DOC’s mail policy concerning
privileged mail. Considering Ortiz’s admissions, as we may, the pleadings
demonstrate that DOC has amended the mail policy as it concerns privileged mail,
and that, as of April 2019, DOC no longer opens and copies privileged mail outside
the presence of the inmate but, instead, has reverted to a control numbering system
whereby original privileged mail is provided to inmates. As a result, we conclude
that Ortiz has likewise not raised any constitutional implications as it concerns his
privileged mail, because, under DOC’s modified mail policy, Ortiz is receiving the
original, uncopied versions of his privileged mail, and the privacy of his privileged
communications is no longer being violated.10 See Bussinger, 29 A.3d at 84;
Brown, 932 A.2d at 317-19.
Based on the foregoing, we conclude that DOC’s mail policy does not violate
Ortiz’s constitutional rights. For that reason, we need not engage in a full Turner
analysis, as Ortiz fails to clear the initial hurdle of establishing a constitutional
10
In his reply to new matter, Ortiz alleges that the mail policy, as modified, still violates
his constitutional rights as it relates to his privileged mail, but he does not elaborate how. In his
brief, Ortiz notes that, in many cases, his privileged mail is misdirected to the third-party vendor
as opposed to being delivered directly to him. (Ortiz’s Brief at 9-10.) The documents that Ortiz
refers to in his brief, however, are not privileged mail; rather, they consist of mailings between the
DOC Respondents and himself, and the DOC Respondents’ brief in support of their Motion. (Id.
at 10.) Furthermore, the DOC Respondents’ modified mail policy utilizes a control numbering
system for privileged mail that is virtually identical to the system this Court upheld in Brown as
constitutional. See Brown, 932 A.2d at 317-18, 321-22. Thus, Ortiz’s contentions in his brief are
not persuasive.
9
violation. Taking away the unfounded constitutional concerns from Ortiz’s Petition,
what is left are averments concerning the DOC Respondents’ authority to enact the
mail policy and their justification for doing so, which claims this Court has
repeatedly denied as failing to establish a cause of action and, instead, has prudently
deferred to the judgment of DOC. See Feliciano v. Pa. Dep’t of Corr., 250 A.3d
1269, 1275 n.9 (Pa. Cmwlth. 2021) (en banc) (“To the extent that [an inmate’s] due
process claim could be interpreted as springing from DOC’s violation of its own
internal administrative regulations, we would not have original jurisdiction to
consider such a claim, as DOC’s regulations do not, in themselves, confer upon
inmates any actionable rights.”).
Accordingly, because Ortiz cannot prevail on his claim that the mail policy
infringes on a constitutional right and the remainder of the averments in his Petition
also do not establish a cause of action, we grant the DOC Respondents’ Motion and
dismiss Ortiz’s Petition with prejudice.11 Given that this Court’s original jurisdiction
extends to Commonwealth government entities and not to actions directed at federal
government agencies, we also dismiss the Petition as to the Johnstown United States
Postal Service Branch, the sole remaining respondent, for lack of jurisdiction.
See 42 Pa. C.S. § 761.
P. KEVIN BROBSON, Judge
11
On March 4, 2021, Ortiz filed an emergency motion for injunctive/stay relief
(Emergency Motion), seeking to have this Court order the DOC Respondents to transfer him and
his personal property back to SCI-Pine Grove. In support thereof, Ortiz alleged that the DOC
Respondents’ actions—i.e., transferring Ortiz from SCI-Pine Grove to SCI-Houtzdale, an
allegedly more violent correctional institution—could only be viewed as retaliation for Ortiz’s
initiation of this action. Such relief, however, is inappropriate in the context of this action. Should
Ortiz believe that he has a separate claim against the DOC Respondents for retaliation, he may file
a separate action.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mac Kenneth Ortiz, :
Petitioner :
:
v. : No. 615 M.D. 2018
:
Pa. Department of Corrections, :
John Wetzel - Secretary of Corrections, :
Pa. Attorney General’s Office :
Superintendant: Lee E-Stock of :
S.C.I. Pine Grove, Johnstown :
United States Postal Service Branch, :
Respondents :
ORDER
AND NOW, this 14th day of September, 2021, the motion for judgment on the
pleadings filed by the Pennsylvania Department of Corrections (DOC), DOC
Secretary John Wetzel, and Lee Estock, Superintendent of the State Correctional
Institution at Pine Grove, is GRANTED, and the petition for review (Petition) filed
by Petitioner Mac Kenneth Ortiz (Ortiz) is DISMISSED with prejudice. The
emergency motion for injunctive/stay relief filed by Ortiz on March 4, 2021, is
DENIED. The matter is DISMISSED as to the Johnstown United States Postal
Service Branch for lack of jurisdiction.
P. KEVIN BROBSON, Judge