D. Deitz v. PA Dep't of Corr.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dennis Deitz, :
Petitioner :
:
v. :
:
PA Dep’t of Corr., : No. 15 M.D. 2020
Respondent : Submitted: August 21, 2020
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: December 15, 2020
Before this Court are the Pennsylvania Department of Corrections’
(Department) preliminary objections (Preliminary Objections) to Dennis Deitz’s
(Deitz) pro se petition for review in the nature of a complaint (Petition) filed in this
Court’s original jurisdiction. After review, we sustain the second Preliminary
Objection and dismiss the Petition.
Background1
Deitz is currently an inmate (No. HL9522) at the Department’s State
Correctional Institution (SCI) at Houtzdale. See Inmate Locator, PA. DEP’T OF
CORR., http://inmatelocator.cor.pa.gov (last visited November 23, 2020). Deitz has
been on high risk (H Code) status and the Department’s Escape Risk List (ERL)
since 2008.2 On August 13, 2019, Deitz filed an Inmate Request to Staff Member
1
The following facts are as alleged in the Petition.
2
Deitz’s H Code status and placement on the Department’s Escape Risk List (ERL)
resulted from his 2008 conviction for a 1983 escape from SCI-Camp Hill and an attack on staff.
(Form DC-135A) asking Facility Management for “a review or hearing” regarding
his H Code status, because the incident that led to that status was more than 30 years
earlier, and he had been restricted to a wheelchair for over a year. Petition ¶ 1, Ex.
B. On August 18, 2019, SCI-Houtzdale staff responded: “This will be done at your
annual review.” Petition Ex. B; see also Petition ¶ 1.
On September 23, 2019, Deitz filed a follow-up Form DC-135A
seeking the status of his August 13, 2019 request. See Petition ¶ 4, Ex. C. On
October 4, 2019, SCI-Houtzdale staff responded that Deitz’s request to have his H
Code status changed was reviewed at his annual review and was denied. See Petition
¶¶ 2, 4, Ex. C.
On October 11, 2019, Deitz filed Inmate Grievance No. 828846
(Grievance), wherein he claimed that he was informed he would receive a hearing
on his H Code status at his annual review, but no hearing was conducted in his
presence and his status change request was denied. See Petition ¶ 3, Ex. A. On
October 21, 2019, SCI-Houtzdale’s Facility Grievance Coordinator rejected the
Grievance because “it was not submitted within fifteen (15) working days after the
events upon which claims are based [(i.e., his annual review)].” Petition Ex. D; see
also Petition ¶ 4.
On October 22, 2019, Deitz appealed from the Facility Grievance
Coordinator’s decision to the Facility Manager, arguing: he timely filed the
Grievance; he was not afforded a hearing to review his H Code status that he was
promised; he is no longer a security risk because he is confined to a wheelchair; and
the H Code status requirement that he move every 90 days is arduous. See Petition
¶ 5, Ex. E. On November 6, 2019, the Facility Manager upheld the Facility
See Department Br. at 3, 8. “Being on the ERL automatically causes an inmate to be labeled as
High Risk.” Department Br. at 4.
2
Grievance Coordinator’s determination that the Grievance was not timely filed. See
Petition ¶ 5, Ex. F.
On November 10, 2019, Deitz appealed from the Facility Manager’s
decision to the Chief Grievance Officer, again claiming that his Grievance was
timely filed, and that he was told he would have a hearing on his H Code status at
his annual review, but his annual review was conducted in his absence and he was
not given the opportunity to explain why he should no longer be in H Code status.
See Petition ¶ 6, Ex. G. On December 11, 2019, the Chief Grievance Officer agreed
with the Facility Grievance Coordinator and Facility Manager and dismissed the
Grievance as untimely filed. See Petition ¶ 6, Ex. H.
Facts
On December 30, 2019, Deitz filed the Petition, wherein he stated:
[T]here is a pattern of denial to adequate due[]process
within the [Department] tribunal and the only wa[y] to
have an adequate review is to present this issue to our
courts. Eleven years without a hearing is cru[e]l and
unusual punishment that has forced [Deitz] into not only
significant hardships by having to pack up and move every
(90) days while limited to a wheelchair, it is also atypical
to any normal prison standard.
Petition ¶ 7. Deitz claims that he has not received due process in 11 years, and he
has suffered many hardships while in a wheelchair. See Petition ¶ 8. Deitz adds:
Deitz has not had a misconduct in eleven years and has
done eve[r]ything an inmate could [do] to demonstrate
rehabilitation, [s]o the question here is[:] what are the
motives at SCI[-]Houtzdale, when rehabilitation does not
matter and circumventing due process is the norm. [T]he
constitutional rights of individuals ha[ve] become
irrelevant.
3
Petition ¶ 9. Deitz requests that this Court “review this issue as it violates our
[United States (]U.S.[)] Constitution and [Pennsylvania] constitution,” and afford
him due process by ordering the Department to grant him a hearing on his H Code
status. Petition ¶ 10; see also ad damnum clause.
On February 28, 2020, the Department filed the Preliminary Objections
in the nature of a demurrer, requesting Deitz’s Petition be dismissed because: (1)
Deitz received adequate due process in connection with his annual H Code status
review; (2) Deitz’s confinement on H Code status does not amount to any atypical
or significant hardship in relation to ordinary incidents of prison life; (3) Deitz’s
annual H Code status review affords him adequate due process; (4) Deitz does not
have a clear legal right to a hearing on his H Code status; (5) Deitz is not entitled to
injunctive relief because he will not suffer irreparable harm if an injunction is denied;
(6) the Court lacks jurisdiction over grievance and misconduct decisions; (7) this
Court does not have jurisdiction over cases that do not involve constitutional rights
not limited by the Department; (8) correctional facility operations are governed by
the legislative and executive branches rather than the judicial branch; and (9) Deitz
failed to allege any violations of the U.S. and Pennsylvania Constitutions.3 See
Preliminary Objections at 2-4.
On March 13, 2020, Deitz filed his response to the Department’s
Preliminary Objections, wherein he argued: (1) he was not afforded adequate due
process because the hearing was conducted in his absence; (2) the Department’s
cited cases are distinguishable on the basis that he has spent 11 years (i.e., 4,015
days) in H Code status, the past several of which he was wheelchair bound; (3) if his
annual review afforded him due process, he would not have filed the Petition; (4) he
3
Deitz filed a Motion for Entry of Default Judgment (Motion), claiming that the
Department had not filed a response to the Petition. This Court dismissed the Motion because the
Department filed the Preliminary Objections.
4
suffers irreparable harm every 90 days when he has to move his property to a new
cell by himself in the wheelchair, and he has heart issues; and (5) this Court should
have jurisdiction pursuant to the U.S. and Pennsylvania Constitutions and Section
93.1 of the Department’s Regulations, 37 Pa. Code § 93.1 (relating to the
Department’s publication and maintenance of directives and policy statements
concerning inmate and Department employee interactions with the community). See
Response to Preliminary Objections at 1-2.
On April 13, 2020, this Court ordered the Department to file its brief
by May 15, 2020, and for Deitz to file his brief by June 15, 2020. The Department
filed its brief in support of its Preliminary Objections on May 13, 2020. Because
Deitz did not file a brief by June 15, 2020, on June 30, 2020, this Court ordered him
to do so by July 13, 2020, and declared that, if he did not, the Court would proceed
without it. See June 30, 2020 Order. Deitz did not file a brief.
Discussion
The law is well settled:
In ruling on preliminary objections, this Court accepts as
true all well-pled allegations of material fact, as well as all
inferences reasonably deducible from those facts.
However, this Court need not accept unwarranted
inferences, conclusions of law, argumentative allegations,
or expressions of opinion. For preliminary objections to
be sustained, it must appear with certainty that the law will
permit no recovery. Any doubt must be resolved in favor
of the non-moving party.
Dantzler v. Wetzel, 218 A.3d 519, 522 n.3 (Pa. Cmwlth. 2019) (citation omitted).
A preliminary objection in the nature of a demurrer admits
every well-pleaded fact in the [petition for review in the
nature of a] complaint and all inferences reasonably
deducible therefrom. It tests the legal sufficiency of the
challenged pleadings and will be sustained only in cases
5
where the pleader has clearly failed to state a claim for
which relief can be granted. When ruling on a demurrer,
a court must confine its analysis to the [petition for review
in the nature of a] complaint.
Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citation omitted).
“[C]ourts 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).
In its brief to this Court, the Department conflated its arguments in
support of the Preliminary Objections to the following: (1) the Petition should be
dismissed because Deitz’s due process rights were not implicated by his H Code
status and placement on the ERL (i.e., second Preliminary Objection); (2) the
Petition should be dismissed because, even if due process is implicated, Deitz
receives adequate due process in the form of his annual review (i.e., first, third,
fourth and eighth Preliminary Objections); and (3) the Petition should be dismissed
because Deitz failed to state a claim for injunctive relief (i.e., fifth Preliminary
Objection).4
Since the viability of Deitz’s claims rest, in the first instance, upon
whether his segregated confinement implicates due process guarantees, this Court
will first address the Department’s second Preliminary Objection. “[T]o establish
that the [Department] violated his Fourteenth Amendment right to due process,
[Deitz] must establish that he has been deprived of life, liberty [or] property without
due process of law. See U.S. Const. [a]mend. XIV, § 1.”5 Silo v. Ridge, 728 A.2d
4In its brief, the Department did not further argue its jurisdictional objections to the Petition
(i.e., sixth, seventh and ninth Preliminary Objections).
5
Section 1 of the Fourteenth Amendment to the U.S. Constitution provides, in relevant
part, that no state shall “deprive any person of life, liberty, or property, without due process of
law[.]” U.S. Const. amend. XIV, § 1. “Due process under the Pennsylvania Constitution emanates
6
394, 399 (Pa. Cmwlth. 1999). “Procedural due process rights under the Fourteenth
Amendment are triggered by a deprivation of a cognizable liberty interest.” Brown
v. Blaine, 833 A.2d 1166, 1172 (Pa. Cmwlth. 2003). Thus, “[i]n order to determine
whether a due process violation has occurred, ‘a determination must initially be
made that a protected liberty interest exists, and if so, what process is due.’” Chem
v. Horn, 725 A.2d 226, 229 (Pa. Cmwlth. 1999) (quoting Wilder v. Dep’t of Corr.,
673 A.2d 30, 32 (Pa. Cmwlth. 1996)).
[E]ntitlement to procedural due process, however, cannot
be determined in a static environment, since due process
is ‘not a technical conception with a fixed content
unrelated to time, place and circumstance.’ Gilbert v.
Homar, 520 U.S. 924, 930 . . . (1997). ‘[N]ot all situations
calling for procedural safeguards call for the same kind of
procedure,’ Commonwealth v. Batts, . . . 163 A.3d 410,
455 ([Pa.] 2017), and the ‘amount of due process that is
due in any particular circumstance is flexible and calls for
such procedural protections as the particular situation
demands.’ . . . Dep’t of Transp., Bureau of Driver
Licensing v. Clayton, . . . 684 A.2d 1060, 1064 ([Pa.]
1996).
Friends of Danny DeVito v. Wolf, 227 A.3d 872, 897 (Pa. 2020).
This Court is mindful that, although “prisoners do not shed all
constitutional rights at the prison gate,” Sandin v. Conner, 515 U.S. 472, 485 (1995),
[p]rison inmates do not enjoy the same level of
constitutional protections afforded to non-incarcerated
citizens. As the Robson [v. Biester, 420 A.2d 9 (Pa.
Cmwlth. 1980) C]ourt observed, ‘incarceration brings
from a number of provisions, including Article I, Sections 1, 9, and 11.” Muscarella v.
Commonwealth, 87 A.3d 966, 973 (Pa. Cmwlth. 2014). Article I, Section 1 of the Pennsylvania
Constitution, Pa. Const. art. I, § 1, similarly protects life, liberty and property interests. Article I,
Section 9 of the Pennsylvania Constitution provides, in pertinent part, that a person shall not be
“deprived of his life, liberty or property, unless by the judgment of his peers or the law of the
land.” Pa. Const. art. I, § 9. Article I, Section 11 of the Pennsylvania Constitution states, in
relevant part, that “[a]ll 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[.]” Pa. Const. art. I, § 11.
7
about the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the
considerations underlying our penal system.’ [Id.] at 13
(citing Price v. Johnston, 334 U.S. 266 . . . (1948)).
Bronson v. Cent. Office Rev. Comm., 721 A.2d 357, 359 (Pa. 1998).
Moreover, “[p]rison administrators . . . are afforded wide-ranging
deference in their adoption and enforcement of policies that are necessary to preserve
order, discipline, and security.” Sanders v. Wetzel, 223 A.3d 735, 740 (Pa. Cmwlth.
2019). In particular, “it is entirely a matter of the Department’s discretion where to
house an inmate[,]” Clark v. Beard, 918 A.2d 155, 160 (Pa. Cmwlth. 2007), and
“principles of due process impose few restrictions on the use of that authority.” Id.
at 161.
The Department has exercised [its management] authority
by promulgating regulations . . . . Section 93.11 [of the
Department’s Regulations] governs housing of inmates
and provides as follows:
(a) An inmate does not have a right to be housed
in a particular facility or in a particular area within
a facility.
(b) Confinement in a restricted housing unit
(RHU), other than under procedures established
for inmate discipline, will not be done for punitive
purposes. The Department will maintain written
procedures which describe the reasons for housing
an inmate in the RHU and require due process in
accordance and with established principles of law
for an inmate who is housed in the RHU. Inmates
confined in the RHU will be reviewed periodically
by facility staff.
37 Pa. Code § 93.11. In accordance with [Section 93.11
of the Department’s Regulations], DC-ADM 802 governs
Administrative Custody [(AC)] Procedures and is
applicable to all facilities operated under the jurisdiction
of the [Department].
8
Torres, 997 A.2d at 1247-48.
The Department does not reference, and this Court did not locate, any
Department Regulations or other policies specifically governing an inmate’s H Code
or ERL status or their attendant review. DC-ADM 802 sets forth the Department’s
AC procedures and specifies how reviews are to be conducted, but it is not clear
whether DC-ADM 802 governs in this case.6 In addition, although the Department’s
policies reference escape risks (see Policy 6.3.1, Section 13 and Policy 6.5.1, Section
13), those policies are not available to this Court for review on the Department’s
website.
Notwithstanding, the U.S. Supreme Court, in Sandin, reviewed the
scope of an inmate’s right to assert a due process challenge to placement in
segregated confinement in a correctional facility. This Court in Dantzler
summarized:
[The] Sandin [Court] determined a state-created liberty
interest could arise only when a prison’s action imposed
an ‘atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.’ Id. [at
484]. The Court went on to point out that the punishment
6
This Court observes that, according to DC-ADM 802, “[a] general population inmate may
be assigned AC status . . . for the following reason(s): . . . (e) the inmate would pose an escape risk
in a less secure status[.]” DC-ADM 802 § 1.B.1.e. DC-ADM 802 further specifies that the facility
manager or his designee may request that an inmate be placed on the Restricted Release List (RRL)
“when he/she poses a threat to the secure operation of the facility and where a transfer to another
facility or jurisdiction would not alleviate the security concern.” DC-ADM 802 § 1.C.1. Criteria
for placing an inmate on the RRL include a history of assaults against inmates or staff, escape
attempts, and a threat to a facility’s orderly operation. See DC-ADM 802 § 1.C.2. “The review
and approval/disapproval of each inmate’s status on the [RRL] shall be conducted annually.” DC-
ADM 802 § 2.D.10. However, the Department does not state that DC-ADM 802 governs or is
otherwise applicable to the H Code status at issue here. DC-ADM 802 references “H [C]ode” only
as follows: “If placement on the RRL is approved and an H Code has not been assigned, the
counselor will initiate the DC-46[] Vote Sheet for this purpose, in accordance with Department
policy 11.2.1, ‘Reception and Classification,’ Section 3.” DC-ADM 802 § 1.C.6 (emphasis
omitted). DC-ADM 802 does not reference the ERL.
9
of incarcerated prisoners serves the aim of effectuating
prison management and prisoner rehabilitative goals and
that discipline by prison officials in response to
misconduct is within the expected parameters of the
prisoner’s sentence.
Dantzler, 218 A.3d at 523. “The [Sandin] Court held that confinement in
administrative or punitive segregation will rarely be sufficient, without more, to
establish the kind of ‘atypical’ deprivation of prison life necessary to implicate a
liberty interest.” Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir. 2002). Citing
Sandin, this Court has similarly ruled that “an inmate’s placement in segregated
confinement does not create an actionable liberty interest that would trigger due
process protection.” Sanders, 223 A.3d at 742; see also Dantzler; Chem, 725 A.2d
at 229 (“[R]emaining in a prison’s general population is not a protected liberty
interest.”).
Moreover, “[u]nlike disciplinary custody, there is no maximum period
of confinement in [AC]. Rather, release depends upon an evaluation of many
factors. While time spent and behavior are to be considered, so too are continued
risk, safety of others, and recommendations of prison personnel, including treatment
[by] staff.” Shoats v. Horn, 213 F.3d 140, 142 (3d Cir. 2000). Nevertheless, even
where a lengthy stay in AC may be considered the type of atypical and significant
hardship that triggers procedural due process protections, the Court has concluded
that the Department’s policy of conducting annual reviews satisfies minimal
constitutional due process standards. See Nifas v. Wetzel (Pa. Cmwlth. No. 1736
C.D. 2014, filed June 5, 2015) (despite 5 years on the RRL, the Department’s annual
review policy in DC-ADM 802 satisfied due process);7 see also Torres (despite 2 to
7
This Court acknowledges that its unreported memorandum opinions may only be cited
“for [their] persuasive value, [and] not as binding precedent.” Section 414(a) of the
Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). Accordingly,
Nifas is cited herein for its persuasive value.
10
13 years in RHUs, the periodic review provided for in DC-ADM 802 satisfied due
process); Bowen v. Ryan, 248 F. App’x 302, 304 (3d Cir. 2007) (per curiam) (despite
20 years on the RRL, the Department’s AC procedures affording periodic review
satisfied due process); Shoats (although 8 years in solitary confinement was
sufficiently atypical and significant to create a protected liberty interest, periodic
reviews prescribed by DC-ADM 802 satisfied due process).
Although it is not clear whether Deitz’s H Code status and confinement
as an escape risk is specifically governed by DC-ADM 802, Deitz’s only claim
regarding how his H Code status constitutes an atypical and significant hardship is
that he must “pack up and move every [90] days while limited to a wheelchair[.]”
Petition ¶ 7. He does not otherwise describe his living conditions. Although moving
four times each year while in a wheelchair may be difficult for him, Deitz does not
specify in the Petition how that is an atypical and significant hardship in relation to
the ordinary incidents of prison life, particularly when the law is well settled that the
mere placement in segregated confinement is not, itself, an atypical or significant
deprivation that creates a liberty interest subject to due process protection. See
Sandin; see also Sanders; Dantzler; Chem. Because Deitz’s H Code status and
placement on the ERL do not implicate due process protections in the first instance,
the Department’s second Preliminary Objection is sustained.8
Conclusion
Because it appears with certainty based on the allegations in the Petition
that the law will not permit the relief requested therein, Deitz cannot establish a clear
8
In light of this Court’s determination that Deitz failed to assert a liberty interest for which
due process was required, this Court need not address whether the Petition should be dismissed
based on the Department’s other asserted Preliminary Objections.
11
legal right to relief. Accordingly, the Department’s second Preliminary Objection is
sustained, and Deitz’s Petition is dismissed.
___________________________
ANNE E. COVEY, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dennis Deitz, :
Petitioner :
:
v. :
:
PA Dep’t of Corr., : No. 15 M.D. 2020
Respondent :
ORDER
AND NOW, this 15th day of December, 2020, the Pennsylvania
Department of Corrections’ second preliminary objection to Dennis Deitz’s (Deitz)
pro se petition for review in the nature of a complaint (Petition) is SUSTAINED,
and Deitz’s Petition is DISMISSED.
___________________________
ANNE E. COVEY, Judge