B.J. Murray v. Sec'y. J. Wetzel ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bray Jibril Murray, :
Petitioner :
:
v. :
:
Secretary John Wetzel; Superintendent :
Mahally; Hearing Examiner C.J. :
McKeown; and Lieutenant Corbett, : No. 542 M.D. 2017
Respondents : Submitted: May 7, 2021
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: July 14, 2021
Before this Court in our original jurisdiction are Bray Jibril Murray’s
(Murray) Application for Summary Relief in the nature of a Motion for Judgment
on the Pleadings (Motion) and Hearing Examiner C.J. McKeown’s (Hearing
Examiner McKeown) Cross-Application for Summary Relief in the form of a
Motion for Summary Judgment (Application). After review, this Court denies
Murray’s Motion and Hearing Examiner McKeown’s Application.
Background1
Murray is an inmate currently incarcerated at State Correctional
Institution (SCI)-Dallas. Until August 30, 2016, Murray was incarcerated at SCI-
Benner. On August 3, 2016, while at SCI-Benner, prison staff alleged that Murray
had engaged in misconduct, issued a misconduct report charging him with, inter alia,
1
The following facts are as alleged in the pleadings.
threatening staff, and immediately placed him in the Restricted Housing Unit
(RHU). On August 16, 2016, a Pennsylvania Department of Corrections’
(Department) Hearing Examiner (Hearing Examiner) found Murray guilty of
misconduct and ordered him to spend 30 days in disciplinary custody in the RHU
(August 16, 2016 Decision). Murray appealed from the August 16, 2016 Decision
to SCI-Benner’s Program Review Committee (PRC), arguing that the Hearing
Examiner had improperly precluded Murray’s witnesses from testifying despite
Murray’s timely submission of a witness request form. The PRC remanded the
matter for a rehearing so the Hearing Examiner could review the request,2 but, before
a new hearing could be held, Murray was transferred to SCI-Dallas on August 30,
2016.
Upon his arrival at SCI-Dallas, Murray was immediately placed in
disciplinary custody in the facility’s RHU, K-Unit (K-Unit). On September 9, 2016,
Hearing Examiner McKeown conducted the rehearing on the reported August 3,
2016 misconduct, found Murray guilty of the misconduct, and required Murray to
serve 60 days in disciplinary custody in the K-Unit. On September 21, 2016, Murray
appealed to SCI-Dallas’ PRC, which upheld Hearing Examiner McKeown’s
decision. On October 17, 2016, Murray appealed to the facility manager, who
upheld Hearing Examiner McKeown’s decision. On October 18, 2016, Murray
In his Answer to New Matter, Murray included the following quote from the PRC’s
2
determination:
This document was not received by the Hearing Examiner’s [c]lerk
until 8/17/[20]16, which was after Murray’s hearing. Based on this
information PRC finds to remand this misconduct back [sic] to the
Hearing Examiner for re-hearing to allow the DC-141-part 2A
INMATE REQUEST FOR REPRESENTATION AND WITNESSES
document to be included in the hearing process.
Answer to New Matter ¶6.
2
appealed to the Office of the Chief Hearing Examiner, which denied Murray’s
appeal and upheld Hearing Examiner McKeown’s decision. On March 6, 2017,
Murray filed a pro se complaint in the Luzerne County Common Pleas Court
(common pleas court) for declaratory judgment, mandamus relief and compensatory
and punitive damages against Hearing Examiner McKeown, Department Secretary
John Wetzel, SCI-Dallas Superintendent Lawrence Mahally, and Lieutenant
Corbett3 (collectively, Respondents) (Petition).
On July 31, 2017, the common pleas court transferred the Petition to
this Court. On November 27, 2017, this Court ordered Respondents to file an answer
or otherwise respond to the Petition within 30 days. On December 27, 2017,
Respondents filed Preliminary Objections to the Petition seeking dismissal of
Murray’s action. Relevant to Hearing Examiner McKeown, Respondents contended
that, to the extent Murray seeks review of the discipline imposed, such must be
dismissed because this Court lacked subject matter jurisdiction. Concerning
Murray’s allegations that he was denied due process when his witnesses were not
permitted to testify at the disciplinary hearing, Respondents averred that the claims
were meritless since a hearing examiner has discretion to determine the relevance of
evidence.
On August 18, 2018, this Court overruled Respondents’ Preliminary
Objection with respect to Murray’s challenge to Hearing Examiner McKeown’s
refusal to permit his witnesses to testify at the disciplinary hearing, but sustained the
Preliminary Objections in all other respects. See Murray v. Wetzel (Pa. Cmwlth. No.
542 M.D. 2017, filed Aug. 18, 2018). This Court also sustained the Preliminary
Objections relative to the remaining Respondents and dismissed them from the
3
The parties did not identify Lieutenant Corbett’s full name in the documents filed with
this Court.
3
action. See id. This Court further directed Hearing Examiner McKeown to file an
answer to the allegations remaining against him within 30 days of the exit date of
the Order. See id. On August 31, 2018, Hearing Examiner McKeown filed an
Answer and New Matter to the Petition. On September 17, 2018, Murray filed an
Answer to Hearing Examiner McKeown’s New Matter.
Facts
By February 19, 2021 Order, because the action had been dormant for
an extended period of time, this Court directed Murray to show cause why the action
should not be dismissed for want of prosecution (Rule to Show Cause). On March
15, 2021, Murray responded to the Rule to Show Cause. Also on March 15, 2021,
Murray filed the Motion. By March 18, 2021 Order, this Court discharged the Rule
to Show Cause. On March 29, 2021, Hearing Examiner McKeown filed an Answer
to the Motion and filed his Application. The Motion and the Application are now
ripe for review.
Discussion
Initially,
[a] motion for judgment on the pleadings is in the nature
of a demurrer; all of the opposing party’s allegations are
viewed as true and only those facts which have been
specifically admitted by him may be considered against
him. In reviewing a motion for judgment on the pleadings,
the [] court may only consider the pleadings themselves
and any documents properly attached thereto. A motion
for judgment on the pleadings should be granted by a []
court only when the pleadings show there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.
4
Trib Total Media, Inc. v. Highlands Sch. Dist., 3 A.3d 695, 698 n.2 (Pa. Cmwlth.
2010) (citations omitted).
Similarly,
[a]n application for summary relief may be granted if a
party’s right to judgment is clear and no material issues of
fact are in dispute. When ruling on an application for
summary relief, “we must view the evidence of record in
the light most favorable to the non-moving party and enter
judgment only if there is no genuine issue as to any
material facts and the right to judgment is clear as a matter
of law.” Eleven Eleven [Pa., LLC v. State Bd. of
Cosmetology], 169 A.3d [141,] 145 [(Pa. Cmwlth. 2017)
(internal quotation marks omitted)].
Gregory v. Pa. State Police, 185 A.3d 1202, 1205 n.5 (Pa. Cmwlth. 2018) (citations
omitted).
The United States Supreme Court has explained:
[T]he inmate facing disciplinary proceedings should be
allowed to call witnesses and present documentary
evidence in his defense when permitting him to do so
will not be unduly hazardous to institutional safety or
correctional goals. Ordinarily, the right to present
evidence is basic to a fair hearing; but the unrestricted
right to call witnesses from the prison population
carries obvious potential for disruption and for
interference with the swift punishment that in
individual cases may be essential to carrying out the
correctional program of the institution. We should not be
too ready to exercise oversight and put aside the
judgment of prison administrators. . . . Prison officials
must have the necessary discretion to keep the hearing
within reasonable limits and to refuse to call witnesses that
may create a risk of reprisal or undermine authority, as
well as to limit access to other inmates to collect
statements or to compile other documentary evidence.
Although we do not prescribe it, it would be useful for
the [c]ommittee to state its reason for refusing to call a
witness, whether it be for irrelevance, lack of necessity,
or the hazards presented in individual cases. Any less
flexible rule appears untenable as a constitutional matter[.]
5
Wolff v. McDonnell, 418 U.S. 539, 566 (1974) (emphasis added).
The Wolff Court continued:
The operation of a correctional institution is at best an
extraordinarily difficult undertaking. Many prison
officials, on the spot and with the responsibility for the
safety of inmates and staff, are reluctant to extend the
unqualified right to call witnesses; and in our view, they
must have the necessary discretion without being
subject to unduly crippling constitutional
impediments. There is this much play in the joints of the
Due Process Clause, and we stop short of imposing a more
demanding rule with respect to witnesses and documents.
Wolff, 418 U.S. at 566-67 (emphasis added).
Murray’s Motion
Murray argues that because inmates are entitled to witness testimony in
a disciplinary proceeding, and there is no genuine dispute regarding the fact that
Hearing Examiner McKeown’s denial of witnesses was not based on institutional
safety or correctional goals, he is entitled to judgment on the pleadings.4 Hearing
Examiner McKeown rejoins that Murray failed to establish that there are no genuine
4
Murray further contends that Hearing Examiner McKeown violated double jeopardy
proscriptions against multiple punishments for the same offense by conducting a second hearing
on the same misconduct. However, Murray alleged in his Petition: “On 8/25/[20]16, in response
to appeal for Misc. report #939593, [SCI-Benner’s PRC] finds that [Murray] had in fact
submitted a timely witness request form (which was never received by the hearing examiner), and
consequently, the PRC remands Misc. report #939593 back [sic] to hearing examiner for a
rehearing.” Petition ¶5 (emphasis added). Consequently, the rehearing was a corrective measure
taken in response to Murray’s appeal. Moreover, the Pennsylvania Supreme Court has held that
double jeopardy does not apply in the prison disciplinary setting. See Commonwealth v. McGee,
744 A.2d 754, 759 (Pa. 2000) (“[W]here, as here, prison disciplinary action is imposed for
infractions of prison regulations within the confines of the authorized administrative scheme, and
such discipline falls within the range of predictable punishment under the original sentence and
can be justified on the basis of safe, orderly or efficient institutional administration, it does not
implicate the constitutional proscription against subsequent criminal prosecution based upon
double jeopardy.”). Accordingly, the double jeopardy proscriptions were not violated in this
instance.
6
issues of material fact, or that he is entitled to judgment as a matter of law.
Specifically, Hearing Examiner McKeown responds that he has challenged Murray’s
claim that he violated Murray’s due process rights by disallowing Murray’s request
for witnesses at every opportunity. First, Hearing Examiner McKeown asserts that
he properly exercised his discretion in denying Murray’s request for witnesses,
because those witnesses were not required for Murray to prove the facts at issue. See
Answer and New Matter. Second, Hearing Examiner McKeown contends that the
witnesses were housed at SCI-Benner, see New Matter ¶15, which created logistical
and operational challenges to produce them for testimony.
In his Answer to the Petition, Hearing Examiner McKeown expressly
denied paragraph 10, wherein Murray alleged: “Yet, in spite of the extraordinary
circumstances, [Hearing Examiner] McKeown arbitrarily denie[d] timely
requested witnesses (after confirming that video evidence was not [sic]
unavailable),[5] finds [Murray] guilty of Misc. report #939593 a second time, and
subsequently sanction[ed] him to 60-days disciplinary custody time in RHU.”
Petition ¶10 (emphasis added). Further, in his Answer to the Petition, Hearing
Examiner McKeown denied paragraph 23, wherein Murray alleged:
[Hearing Examiner] McKeown violate[ed] the DOUBLE
JEOPARDY, DUE PROCESS, and WITNESS CLAUSES of the
FOURTEENTH and SIXTH AMENDMENTS to the United
States Constitution, [U.S. CONST. amends. XIV, VI,]
when he denied [Murray’s] properly requested defense
witnesses to participate in [sic] disciplinary hearing
(and establish a preponderance of evidence in favor of not
guilty plea); and also, utilize[d] self[-]same evidence (i.e.,
Misc. report #[]939593) in a second disciplinary hearing,
and imposes a second greater sanction.
Petition ¶23 (emphasis added).
5
Murray expressly alleged that the video evidence was unavailable. See Petition ¶9.
7
Moreover, in his New Matter, Hearing Examiner McKeown averred, in
relevant part:
17. [Hearing Examiner] McKeown did not violate
[Murray’s] due process rights by declining to hear from
the witnesses [Murray] had requested from another
facility.
18. Hearing examiners possess the authority to determine
if and when inmate witnesses are necessary, and can
decline to hear from witnesses that would not aid in the
resolution of the misconduct or when entertaining
witnesses would compromise the operation or security of
the facility.
19. Transporting several inmates from one institution to
another to testify on behalf of [Murray] at his misconduct
hearing would disrupt the orderly operations of both
facilities.
New Matter ¶¶17-19.
Although inmates are entitled to witness testimony in a disciplinary
proceeding, given the above, it is not clear, as Murray asserts, that Hearing Examiner
McKeown’s denial of witnesses was not based on institutional safety or correctional
goals. Consequently, this Court cannot hold that Murray is “entitled to judgment as
a matter of law.” Trib Total Media, Inc., 3 A.3d at 698 n.2. Accordingly, Murray’s
Motion is denied.
Hearing Examiner McKeown’s Application
Hearing Examiner McKeown argues that he is entitled to judgment as
a matter of law. Specifically, Hearing Examiner McKeown contends the
contemporaneous documentation reflects that he denied Murray’s witness request
because those witnesses were not required for Murray to establish the facts of the
incident at issue. See McKeown Br. Ex. A at 11. Hearing Examiner McKeown also
8
asserts that it is significant that two of the witnesses that Murray requested were not
housed in the area where the incident occurred on August 3, 2016. See McKeown
Br. Exs. B, C. Further, Hearing Examiner McKeown avers that all three requested
witnesses were residents of SCI-Benner and Murray’s hearing was held at SCI-
Dallas. See id. Lastly, Hearing Examiner McKeown maintains that the denial of
prisoner witnesses during misconduct hearings for logistical and operational reasons
is legitimate, see Wolff, and producing numerous prisoners from one institution to
testify at another certainly represents substantial logistical and operational
challenges.
Murray rejoins that this Court can only look at the pleadings/record in
considering the Application and, therefore, the exhibits attached to McKeown’s brief
cannot be considered by this Court. However, Murray attached his own affidavit to
his brief to refute Hearing Examiner McKeown’s attachments. Murray further
responds that Hearing Examiner McKeown filed his Application prematurely, as
discovery had not ended.
At the outset, Pennsylvania Rule of Appellate Procedure (Rule) 1532(b)
provides:
Summary relief. At any time after the filing of a petition
for review in an appellate or original jurisdiction matter,
the court may on application enter judgment if the right of
the applicant thereto is clear.
Note: . . . .
Paragraph (b) authorizes immediate disposition of a
petition for review, similar to the type of relief envisioned
by the Pennsylvania Rules of Civil Procedure regarding
judgment on the pleadings and peremptory and summary
judgment. However, such relief may be requested
before the pleadings are closed where the right of the
applicant is clear.
Pa.R.A.P. 1532(b) (emphasis added).
9
This Court has clarified:
The record, for purposes of the motion for summary relief,
is the same as a record for purposes of a motion for
summary judgment. [Pennsylvania Rule of Civil
Procedure No. 1035.1] provides that the record in a motion
for summary judgment includes any
(1) pleadings,
(2) depositions, answers to interrogatories,
admissions and affidavits, and
(3) reports signed by an expert witness . . . [.]
Pa.R.C.P. No. 1035.1. Therefore, in “ruling on a motion
for summary judgment, a court must consider not only the
pleadings but other documents of record, such as
exhibits.” Am[.] Fed[’]n of State, C[nty.] [&] Mun[.]
Emp[s.] v. Commonwealth, . . . 533 A.2d 785, 788 ([Pa.
Cmwlth.] 1987).
Borough of Bedford v. Dep’t of Env’t Prot., 972 A.2d 53, 60 n.6 (Pa. Cmwlth. 2009)
(emphasis added; citation omitted). Accordingly, while Murray is incorrect that
Hearing Examiner McKeown’s Application was premature, Murray is correct that
this Court cannot consider the exhibits attached to Hearing Examiner McKeown’s
brief because they are not part of the record.
Notwithstanding, Hearing Examiner McKeown argues that it is
undisputed that the denial of Murray’s requested witnesses for the misconduct
hearing was legitimate because producing numerous prisoners from one institution
to testify at another represents substantial logistical and operational challenges.
However, in his Answer to New Matter, Murray averred:
[T]here were several different means or methods available
to [Hearing Examiner] Mc[K]eown of obtaining requested
witnesses testimony housed at other SCI-facilities (such
as, e.g., telephonic, video, etc.). The DC-ADM 801
Disciplinary Procedural Policy does permit in-camera
testimony of inmate witnesses. By way of further reply,
10
[Hearing Examiner] McKeown’s documented reason for
denying witnesses to offer evidence at misconduct hearing
(i.e., “Not required to determine fact”) does not appear to
be related to a legitimate security or penologically
logistical concern.
Answer to New Matter ¶17. “[V]iew[ing] the evidence of record in the light most
favorable to [Murray,]” this Court cannot hold that “there is no genuine issue as to
[whether the denial of Murray’s requested witnesses was based on substantial
logistical and operational challenges,] and the right to judgment is clear as a matter
of law.” Gregory, 185 A.3d at 1205 n.5. Accordingly, Hearing Examiner
McKeown’s Application is denied.
Conclusion
For all of the above reasons, the Motion and the Application are denied.
_________________________________
ANNE E. COVEY, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bray Jibril Murray, :
Petitioner :
:
v. :
:
Secretary John Wetzel; Superintendent :
Mahally; Hearing Examiner C.J. :
McKeown; and Lieutenant Corbett, : No. 542 M.D. 2017
Respondents :
ORDER
AND NOW, this 14th day of July, 2021, Bray Jibril Murray’s
Application for Summary Relief in the nature of a Motion for Judgment on the
Pleadings is DENIED. Hearing Examiner C.J. McKeown’s Cross-Application for
Summary Relief in the form of a Motion for Summary Judgment is DENIED.
_________________________________
ANNE E. COVEY, Judge