A. Sullivan v. PA DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Sullivan, :
Petitioner :
:
v. : No. 204 M.D. 2020
: Submitted: October 22, 2021
Pennsylvania Department :
of Corrections, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE BROBSON FILED: December 22, 2021
Before the Court are the preliminary objections of Respondents Pennsylvania
Department of Corrections (DOC), Secretary of Corrections John E. Wetzel
(Wetzel), and Superintendent Mark Garman (Garman) (collectively Respondents) to
a petition for review (Petition) filed by Petitioner Anthony Sullivan (Sullivan), an
inmate at the State Correctional Institution (SCI) at Camp Hill.1 For the reasons set
forth below, we sustain Respondents’ preliminary objection based on a lack of
jurisdiction and dismiss the Petition with prejudice.
1
Although the Petition identifies DOC as the only respondent in the caption, it further
identifies Wetzel and Garman as respondents in the body of the Petition.
I. BACKGROUND
Sullivan filed his Petition on March 2, 2020, appealing an internal grievance
decision rendered by DOC and generally challenging DOC’s handling of his books
and magazines. More specifically, Sullivan alleges in the Petition that DOC is
wrongfully destroying his property pursuant to its mail policy, DC-ADM 803,2 by
ripping the covers off books and tearing out the magazine subscription cards from
the books and magazines he and his family purchase through DOC’s approved
literature vendor. Sullivan recognizes in the Petition that the purpose of the mail
policy is to prevent the introduction of contraband into the prison system, but he
alleges that the destruction of his property serves no penological purpose because
DOC also purchases its books and magazines through the same vendor but does not
subject those books and magazines to the same treatment. Sullivan argues that
tearing out his magazine subscription cards violates his right under the First
Amendment to the United States Constitution concerning freedom of the press
and/or freedom of speech. As noted above, Sullivan initially sought relief for this
matter through DOC’s internal grievance procedure, which grievance was ultimately
denied. Sullivan requests that this Court reverse DOC’s internal grievance decision
and order DOC to stop tearing the covers off his books or return the covers to him
after they are torn so he can mend them and to stop ripping out the subscription cards
from his magazines and/or make copies of the subscription cards and provide them
to him.
2
DC-ADM 803, Inmate Mail and Incoming Publications,
https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/803%20Inmate%20Mail%2
0and%20Incoming%20Publications.pdf (last visited Dec. 21, 2021).
2
Respondents thereafter filed preliminary objections, which are presently
before the Court. Respondents essentially contend in their objections that this Court
lacks both original and appellate jurisdiction to consider the Petition and that
Sullivan has failed to state a claim for which relief may be granted (demurrer). As
to the preliminary objection based on demurrer, Respondents contend that Sullivan’s
failure to assert a claim based on a constitutionally protected right results in Sullivan
having failed to assert a claim upon which relief may be granted. Furthermore,
Respondents maintain that DOC has the right to remove book covers and
subscription cards as contraband for purposes of security.
II. DISCUSSION
As set forth above, this matter comes before the Court on preliminary
objections, and our review, therefore, is limited to the pleadings. Pa. State Lodge,
Fraternal Ord. of Police v. Dep’t of Conservation & Nat. Res., 909 A.2d 413, 415
(Pa. Cmwlth. 2006), aff’d, 924 A.2d 1203 (Pa. 2007). We must accept as true the
well-pled averments set forth in the Petition and any reasonable inferences logically
drawn therefrom. See Pa. State Troopers Ass’n v. Cmwlth., 606 A.2d 586, 587
(Pa. Cmwlth. 1992). We need not accept, however, “conclusions of law,
unwarranted inferences from [the] facts, argumentative allegations, or expressions
of opinion.” Meier v. Maleski, 648 A.2d 595, 600 (Pa. Cmwlth. 1994).
Nevertheless, given Sullivan’s pro se status, we engage in a liberal review of the
Petition to determine whether he is or may be entitled to legal relief. See Madden v.
Jeffes, 482 A.2d 1162, 1165 (Pa. Cmwlth. 1984).
Pennsylvania Rule of Civil Procedure 1028(a) sets forth the bases upon which
a party may preliminarily object to a pleading, including failure of a pleading to
conform to a rule of court, lack of jurisdiction, insufficient specificity in a pleading,
3
and demurrer. As to the last basis, in order to sustain a preliminary objection based
on demurrer, it must appear with certainty that the law will not permit recovery on
the claim. Pa. State Lodge, 909 A.2d at 416. Any existing doubt must be construed
against sustaining the objection. Id.A. Appellate Jurisdiction
After careful review, we agree with Respondents that we lack appellate
jurisdiction to entertain Sullivan’s Petition in the nature of an appeal from an internal
grievance decision. In Bronson v. Central Office Review Committee, 721 A.2d 357(Pa. 1998), the Supreme Court of Pennsylvania held that “the procedures for
pursuing inmate grievances and misconduct appeals are a matter of internal prison
administration,” and the Commonwealth Court, therefore, does not have appellate
jurisdiction to consider “decisions by intra-prison disciplinary tribunals.” Bronson,
721 A.2d at 358-59. Thus, to the extent Sullivan is attempting to appeal an internal
grievance decision, we lack appellate jurisdiction.
B. Original Jurisdiction
Whether this Court has original jurisdiction to consider the Petition requires
further analysis. In Bronson, the Supreme Court recognized that this Court’s original
jurisdiction extends to a narrow line of claims concerning the violation of
constitutional rights. Even where constitutional rights are implicated, however, the
Supreme Court held that “[u]nless an inmate can identify a personal or property
interest . . . not limited by [DOC] regulations and which has been affected by a final
decision of [DOC,] the decision is not an adjudication subject to the [Commonwealth
C]ourt’s review.” Bronson, 721 A.2d at 359 (internal quotations omitted) (some
alterations in original) (quoting Lawson v. Dep’t of Corr., 539 A.2d 69, 71
4
(Pa. 1988)). Accordingly, we must consider whether Sullivan has alleged a
constitutional violation as it concerns the handling of his books and magazines.
Sullivan asserts that his claim is subject to this Court’s original jurisdiction
because DOC’s regulation implicates his First Amendment rights to free speech
and/or freedom of the press. As it concerns freedom of speech, “the First
Amendment ‘ordinarily’ denies a State ‘the power to prohibit dissemination of
social, economic and political doctrine’” and “affords protection to symbolic or
expressive conduct as well as to actual speech.” Virginia v. Black, 538 U.S. 343,
358 (2003) (quoting Whitney v. California, 274 U.S. 357, 374 (1927) (Brandeis, J.,
concurring)). The First Amendment guarantees concerning freedom of the press
have also been interpreted to mean all individuals are free to publish at their leisure.
See Near v. State of Minn. ex rel. Olson, 283 U.S. 697, 735 (1931). Presently,
Sullivan has not alleged in the Petition that his speech has been censored or that
DOC has somehow prevented him from publishing. Thus, the First Amendment is
not at issue.
As it concerns the rest of the Petition, we fail to ascertain any other cognizable
legal claim that Sullivan has raised within this Court’s original jurisdiction. While
DOC seemingly interprets Sullivan’s action as making a claim under the Fourteenth
Amendment to the United States Constitution concerning deprivation of property,
the Petition itself does not make any mention of the Fourteenth Amendment nor due
process. The term “due process,” nevertheless, appears once in Sullivan’s answer
to the preliminary objections, but it is mentioned without any explanation as to
whether Sullivan is referring to substantive or procedural due process rights under
the Fourteenth Amendment. Moreover, Sullivan does not mention the Fourteenth
Amendment nor due process in his brief. Pennsylvania Rule of Civil Procedure
5
1019(a) provides that “[t]he material facts on which a cause of action . . . is based
shall be stated in a concise and summary form.” General allegations of wrongdoing,
without the support of specific factual averments, fail to meet this pleading standard.
McCulligan v. Pa. State Police, 123 A.3d 1136, 1141 (Pa. Cmwlth. 2015), aff’d,
135 A.3d 580 (Pa. 2016). Thus, Sullivan has failed to develop any due process claim
under the Fourteenth Amendment.3
Furthermore, Sullivan is not challenging the constitutionality of
DC-ADM 803. Rather, Sullivan appears to be making an argument concerning the
reasoning behind DC-ADM 803 and the necessity of damaging his property for
security purposes. This Court, however, does not have original jurisdiction to
consider such complaints. In Dantzler v. Wetzel, 218 A.3d 519 (Pa. Cmwlth. 2019),
abrogated on other grounds by Feliciano v. Pennsylvania Department of
Corrections, 250 A.3d 1269 (Pa. Cmwlth. 2021), we held that “[a] prison authority’s
adoption of policies and practices creates neither rights in inmates nor a
constitutionally protected interest triggering the inmates’ due process protection.”
Dantzler, 218 A.3d at 524 (alteration in original) (quoting Orozco v. Pa. Dep’t of
3
Even if Sullivan had properly raised this issue as a Fourteenth Amendment property
deprivation claim, our case law makes clear that “[DOC] has broad discretion to fashion policies
about what property inmates may possess[] and to modify those policies as security needs evolve
or change.” O’Toole v. Pa. Dep’t of Corr., 196 A.3d 260, 267 (Pa. Cmwlth. 2018) (holding that
inmate did not have constitutional right to his boots in light of DOC’s discretion concerning safety
policies). Furthermore, DOC’s actions are consistent with its regulation, set forth at 37 Pa. Code
§ 93.2. Subsection (g)(1) of the regulation provides that “[a] publication review committee
consisting of staff designated by and reporting to the facility manager or a designee shall determine
whether an inmate may receive a publication,” 37 Pa. Code § 93.2(g)(1), and it would seem that
DOC’s removal of subscription cards as contraband furthers DOC’s requirement that inmates
receive approval for receipt of any publications. Subsection (g)(8) of the regulation provides that
“[c]overs of hardbound publications may be damaged or removed during inspection in the
discretion of mailroom staff,” 37 Pa. Code § 93.2(g)(8), and, therefore, DOC’s removal of the
book covers during inspection is consistent with DOC’s regulation.
6
Corr. (Pa. Cmwlth., No. 268 C.D. 2013, filed January 14, 2014), slip op. at 4-5); see
also Feliciano, 250 A.3d at 1275 n.9 (explaining DOC’s “regulations do not, in
themselves, confer upon inmates any actionable rights”). Indeed, as the Supreme
Court recognized in Bronson, “internal prison operations are more properly left to
the legislative and executive branches, and . . . prison officials must be allowed to
exercise their judgment in the execution of policies necessary to preserve order and
maintain security free from judicial interference.” Bronson, 721 A.2d at 358. Thus,
to the extent that the Petition raises complaints regarding the propriety of
DC-ADM 803, the Petition has not stated a claim for relief within our original
jurisdiction.
Because the Petition does not raise any other issues that could be interpreted
as claiming that DOC’s actions violate Sullivan’s constitutional rights, we conclude
that we lack original jurisdiction to consider the Petition.4
III. CONCLUSION
For the foregoing reasons, we conclude that we lack original and appellate
jurisdiction to consider the Petition. See Bronson, 721 A.2d at 358-59. Accordingly,
Respondents’ preliminary objection based on a lack of jurisdiction is sustained, and
the Petition is dismissed with prejudice.
P. KEVIN BROBSON, President Judge
4
As a result of our conclusions that this Court lacks both appellate and original jurisdiction
over the Petition, we need not consider further Respondents’ preliminary objection based on
demurrer.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Sullivan, :
Petitioner :
:
v. : No. 204 M.D. 2020
:
Pennsylvania Department :
of Corrections, :
Respondent :
ORDER
AND NOW, this 22nd day of December, 2021, Respondents’ preliminary
objection based on a lack of jurisdiction is SUSTAINED, and the petition for review
filed by Petitioner Anthony Sullivan is DISMISSED with prejudice.
P. KEVIN BROBSON, President Judge