M. Rokita Jr. v. PA DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Rokita Jr., :
Petitioner :
: No. 26 M.D. 2020
v. :
: Submitted: August 21, 2020
PA Department of Corrections, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: February 3, 2021
Before the Court are the preliminary objections filed by the Pennsylvania
Department of Corrections (DOC) to the pro se Petition for Review (Petition) filed by
Mark Rokita, Jr. (Rokita), an inmate at State Correctional Institution at Houtzdale (SCI-
Houtzdale). DOC asserts that this Court lacks jurisdiction over the Petition, and that
Rokita has failed to state a claim upon which relief can be granted. For the reasons that
follow, we sustain DOC’s demurrer.
Rokita challenges the imposition of taxes upon his use of telephones at
SCI-Houtzdale. As set forth in the Petition, on September 27, 2019, Rokita filed a
grievance contending that he was arbitrarily being taxed twice for his telephone calls
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt
completed her term as President Judge.
to family and friends—once when he purchased telephone time and again when he used
the time. (Petition ¶1.) The grievance responder denied the grievance, informing
Rokita that telephone time is taxed at 6% at the time of purchase, and that there is a
usage tax of 5% for all debit calls. (Petition, Exhibit B.) The grievance responder
further suggested that inmates “who do not wish to pay these fees, may elect not to use
the phones.” Id. Rokita’s appeals of the grievance decision were denied.
Rokita then sought review in this Court, claiming that this Court may
exercise jurisdiction under both 42 Pa.C.S. §761 (original jurisdiction) and 42 Pa.C.S.
§763 (direct appeals from government agencies). Referencing a federal tax statute,2
Rokita contends that, even though his use of the telephone system is a privilege, “there
should still be fiscal laws applied.” (Petition ¶5.) Rokita compares the circumstance
to the purchase of a vehicle, where “one pays a tax initially, but is not forced to pay a
tax each time they [sic] drive the vehicle.” Id. Further asserting constitutional
violations, Rokita claims that the alleged double taxation violates his right to be free
from “cruel and unusual punishment” under the Eighth Amendment to the United
States Constitution.3 (Petition ¶6.) He additionally refers to a potential due process4
violation, claiming that the participants in the resolution of his grievance “would have
2
Rokita cited a provision of the Internal Revenue Code providing for a 3% tax on amounts
paid for communications services, including local and toll telephone services. See 26 U.S.C.
§4251(a), (b)(2). This section, however, does not prohibit states from imposing taxes upon such
services, and Rokita cites no authority for such a proposition.
3
U.S. CONST. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.”). The Eighth Amendment’s “cruel and unusual
punishments” clause is applicable to the States under the Fourteenth Amendment. Robinson v.
California, 370 U.S. 660 (1962); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947).
4
See U.S. CONST. amend. XIV (“[n]o State shall . . . deprive any person of life, liberty, or
property, without due process of law”).
2
something to gain or loose [sic] by the findings of [Rokita’s] claim,” thus purporting
to demonstrate bias on the part of DOC officials. Id.In its preliminary objections, and its brief in support thereof, DOC
observes that this Court lacks original jurisdiction over claims “not involving
constitutional rights not limited by [DOC].” (Preliminary Objections ¶5 (quoting
Bronson v. Central Office Review Committee, 721 A.2d 357 (Pa. 1998); Weaver v.
Pennsylvania Department of Corrections, 829 A.2d 750 (Pa. Cmwlth. 2003)); DOC’s
Br. at 12.) DOC asserts that inmates have no constitutional right to use a telephone.
(Preliminary Objections ¶5 (citing Feigley v. Pennsylvania Public Utility Commission,
794 A.2d 428, 432 (Pa. Cmwlth. 2002) (en banc); Chimenti v. Pennsylvania
Department of Corrections, 720 A.2d 205, 213 (Pa. Cmwlth. 1998)); DOC’s Br. at 13).
Accordingly, because it asserts that there is no constitutional right at issue, DOC
contends that this Court lacks original jurisdiction over the Petition.
DOC further advances a demurrer, asserting that Rokita is unable to state
a claim under the Eighth Amendment, again because he has no freestanding
constitutional right to use a telephone, and because the imposition of a tax upon his
voluntary use of a telephone does not constitute “punishment” within the meaning of
the Eighth Amendment. (Preliminary Objections ¶6 (citing Farmer v. Brennan, 511
U.S. 825, 834 (1994)); DOC’s Br. at 14-15.) Finally, DOC contends that Rokita is
unable to state a claim of a due process violation in the grievance procedure, because
inmates have no constitutional right to a grievance procedure. (Preliminary Objections
¶7 (citing Luckett v. Blaine, 850 A.2d 811, 820 (Pa. Cmwlth. 2004)); DOC’s Br. at 15-
16.) DOC further asserts that Rokita’s due process claim fails because he failed to
plead sufficient facts in support thereof, advancing only conclusory claims of bias on
the part of the grievance responders. (DOC’s Br. at 16.)
3
Rokita filed a response to the DOC’s preliminary objections, but has not
filed a brief in this matter.5 Challenging the DOC’s assertion that there is no
constitutional right implicated here, Rokita alludes to a right to communicate with
friends and family that is protected under the First Amendment to the United States
Constitution,6 and further refers to principles of equal protection of the laws, protected
by the Fourteenth Amendment to the United States Constitution. (Response to
Preliminary Objections ¶¶2-3.) With respect to the claims raised in the Petition, Rokita
asserts that “[p]rison conditions which might not ordinarily violate [the] Eighth
Amendment may nonetheless do so if [they persist] over an extended period of time.”
Id. ¶5 (citing Dixon v. Godinez, 114 F.3d 640 (7th Cir. 1997)). Because Rokita has
been subject to the challenged taxation for nearly a decade, he asserts that the tax rises
to the level of an Eighth Amendment violation. Id. With regard to his due process
claim, Rokita again asserts that participants in the grievance process were biased
against him. Id. ¶6.
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. Christ the
King Manor v. [Department of Public] Welfare, 911 A.2d
624 (Pa. Cmwlth. 2006) (en banc). However, this Court need
not accept unwarranted inferences, conclusions of law,
argumentative allegations, or expressions of opinion. Id. For
5
On July 1, 2020, this Court issued an order noting that Rokita’s brief in opposition to DOC’s
preliminary objections was due on June 15, 2020, but had not been filed. We directed Rokita to file
his brief no later than July 16, 2020, or we would proceed without it. To date, Rokita has not filed
his brief in opposition.
6
U.S. CONST. amend. I (“Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the Government for a redress of
grievances.”).
4
preliminary objections to be sustained, it must appear with
certainty that the law will permit no recovery. Id. Any doubt
must be resolved in favor of the non-moving party. Id.Key v. Pennsylvania Department of Corrections, 185 A.3d 421, 423 n.3 (Pa. Cmwlth.
2018).
At the outset, we decline to dismiss Rokita’s action for a lack of subject
matter jurisdiction. It is well-established that this Court’s original jurisdiction is “not
available ‘in a case not involving constitutional rights not limited by the [DOC].’”
Weaver, 829 A.2d at 751 (quoting Bronson, 721 A.2d at 359). Our Supreme Court in
Bronson explained that, unless “‘an inmate can identify a personal or property
interest . . . not limited by [the] Department [of Corrections’] regulations and which
has been affected by a final decision of the [D]epartment’ the decision is not an
adjudication subject to the [Commonwealth Court’s] review.” Bronson, 721 A.2d at
359 (quoting Lawson v. Department of Corrections, 539 A.2d 69, 71 (Pa. Cmwlth.
1988)). In his Petition, Rokita asserts a violation of his Eighth Amendment right to be
free from cruel and unusual punishment. This is a constitutional right that DOC is not
entitled to deprive an individual.7 Because Rokita has asserted a violation of a
constitutional right not limited by DOC regulation, and because his action is “[a]gainst
the Commonwealth government, including any officer thereof, acting in his official
capacity,” this Court may exercise original jurisdiction under 42 Pa.C.S. §761(a).8
7
See Rhodes v. Chapman, 452 U.S. 337, 352 (1981) (“Courts certainly have a responsibility
to scrutinize claims of cruel and unusual confinement, and conditions in a number of prisons,
especially older ones, have justly been described as ‘deplorable’ and ‘sordid.’”) (quoting Bell v.
Wolfish, 441 U.S. 520, 562 (1979)).
8
To the extent that Rokita seeks to invoke our appellate jurisdiction, as indicated by his
citation of 42 Pa.C.S. §763 in the Petition, we note that long-settled precedent makes clear that this
Court lacks appellate jurisdiction over an appeal from the denial of an inmate grievance. See Bronson,
(Footnote continued on next page…)
5
The insurmountable hurdle for Rokita is not jurisdictional, but rather that
his averments fail to support the constitutional violations that he asserts. With regard
to “cruel and unusual punishment” in the penal context, this Court has explained:
“[D]eficiencies and inadequacies in prison conditions do not
necessarily violate the Eighth Amendment. The amendment
is violated only where an inmate is deprived of ‘the minimal
civilized measure of life’s necessities.’” Tillery v. Owens,
907 F.2d 418, 426 (3d Cir. 1990) (quoting Rhodes v.
Chapman, 452 U.S. 337, 347 (1981)). A violation requires
proof that the “deprivation suffered was sufficiently serious,
and that a prison official acted with deliberate indifference in
subjecting him to that deprivation.” Griffin v. Vaughn, 112
F.3d 703, 709 (3d Cir. 1997). Courts should not use a static
test in determining whether confinement conditions are cruel
and unusual punishment, because the “Eighth Amendment
must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society.”
Rhodes, 452 U.S. at 346. “[C]onditions that cannot be said
to be cruel and unusual under contemporary standards are not
unconstitutional. To the extent that such conditions are
restrictive and even harsh, they are part of the penalty that
criminal offenders pay for their offenses against society.” Id.
at 347. However, “the prison environment itself may not be
so brutal or unhealthy as to be in itself a punishment.”
Tillery, 907 F.2d at 426.
721 A.2d at 358-59 (“Unlike the criminal trial and appeals process where a defendant is accorded the
full spectrum of rights and protections guaranteed by the state and federal constitutions, and which is
necessarily within the ambit of the judiciary, the procedures for pursuing inmate grievances and
misconduct appeals are a matter of internal prison administration and the ‘full panoply of rights due
a defendant in a criminal prosecution is not necessary in a prison disciplinary proceeding . . . .’
[Robson v. Biester, 420 A.2d 9, 12 (Pa. Cmwlth. 1980) (citing Wolff v. McDonnell, 418 U.S. 539(1974))]. Therefore, the [C]ommonwealth [C]ourt does not have appellate jurisdiction, under 42
Pa.C.S. § 763, over inmate appeals of decisions by intra-prison disciplinary tribunals.”); Weaver, 829
A.2d at 751 (noting that Bronson “held that the Commonwealth Court does not have appellate
jurisdiction over inmate appeals of decisions by intra-prison disciplinary tribunals, such as grievance
and misconduct appeals”) (emphasis in original).
6
Lopez v. Department of Corrections, 119 A.3d 1081, 1090-91 (Pa. Cmwlth. 2015),
aff’d, 144 A.3d 92 (Pa. 2016) (citations modified).
The “cruel and unusual punishment” that Rokita asserts is the imposition
of taxes upon his use of prison telephones. On the surface, there is nothing to indicate
that these taxes constitute punishment for a crime. Although the conditions of
confinement certainly can rise to the level of an Eighth Amendment violation, Rokita
has not alleged that the conditions to which he is subject are “brutal or unhealthy,” or
that he has been deprived of “the minimal civilized measure of life’s necessities.” Id.
at 1090-91 (quoting Tillery, 907 F.2d at 426). Rokita has not alleged that he is subject
to dangerous or inhumane conditions with respect to which prison officials have acted
with “deliberate indifference.” Id. at 1091 (quoting Griffin, 112 F.3d at 709). Rather,
Rokita complains of taxes that he would prefer to avoid, based upon his understanding
of an inapposite provision of federal law, and a comparison to the purchase of an
automobile. On the facts averred, we cannot conclude that the challenged taxes amount
to punishment at all, let alone “cruel and unusual punishment” within the meaning of
the Eighth Amendment. As such, we sustain DOC’s demurrer with respect to this
claim.
With regard to Rokita’s claim of a due process violation in the resolution
of his grievance, Rokita makes a bald assertion that DOC personnel exhibited bias
arising from a purported personal interest in the outcome of his grievance. Specifically,
Rokita suggests that the individuals who reviewed his grievance “would have
something to gain or loose [sic] by the findings of [Rokita’s] claim,” thus raising a
specter of impropriety in the grievance process. (Petition ¶6.) Rokita pleads no facts
in support of this assertion. Indeed, Rokita does not identify what DOC personnel
purportedly stood to gain or lose from the outcome of his grievance. We find that
7
Rokita’s conclusory assertion of bias falls into the category of “unwarranted inferences,
conclusions of law, argumentative allegations, or expressions of opinion,” which we
need not accept as true for purposes of ruling on preliminary objections. Key, 185 A.3d
at 423 n.3. Absent any factual averments to support the claimed deprivation of due
process, we sustain DOC’s demurrer with regard to this claim as well.
DOC’s preliminary objection is sustained.
________________________________
PATRICIA A. McCULLOUGH, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Rokita Jr., :
Petitioner :
: No. 26 M.D. 2020
v. :
:
PA Department of Corrections, :
Respondent :
ORDER
AND NOW, this 3rd day of February, 2021, the preliminary objection
of the Pennsylvania Department of Corrections is SUSTAINED. The Petition for
Review is DISMISSED.
________________________________
PATRICIA A. McCULLOUGH, Judge