G. Rytsar v. Super. Overmyer

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Galina Rytsar, :
Petitioner :
:
v. :
:
Superintendent Overmyer, :
Lt. McCurdy, Lt. Dugan, C/O Osborne, :
C/O Shuhayda, : No. 571 M.D. 2022
Respondents : Submitted: July 5, 2024
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: September 9, 2024
Before this Court are the preliminary objections (Preliminary
Objections) filed by the Pennsylvania Department of Corrections’ (Department)
employees at the State Correctional Institution at Cambridge Springs (SCI-
Cambridge Springs), Superintendent Overmyer, Lieutenant (Lt.) McCurdy, Lt.
Dugan, Corrections Officer (C/O) Osborne, and C/O Shuhayda (collectively,
Respondents)1 to Galina Rytsar’s (Rytsar) pro se Petition for Emergency
Relief/Injunction (Petition) filed in this Court’s original jurisdiction. After review,
this Court sustains the Preliminary Objections and dismisses Rytsar’s Petition.
Rytsar is currently an inmate at SCI-Cambridge Springs.2 On July 14,
2022, Respondents placed Rytsar in the SCI-Cambridge Springs Restricted Housing
1
Respondents’ first names are not set forth in the Petition for Emergency Relief/Injunction
or supporting documents.
2
See http://inmatelocator.cor.pa.gov (last visited Sept. 6, 2024).
Unit (RHU).3 At that time, Respondents found legal documents in Rytsar’s previous
cell exceeding permissible amounts and confiscated the documents. Thereafter,
Rytsar sought permission to store the additional legal materials in her cell (Request).
Upon Rytsar’s release from the RHU, she asked that Respondents return her legal
documents. Thereafter, Rytsar filed a grievance,4 alleging that Respondents had
violated her constitutional rights by confiscating her legal documents and impairing
her ability to pursue her appeal.5 On October 12, 2022, Respondents granted
Rytsar’s Request to keep additional legal materials in her cell, but limited the
materials to one additional box. On October 24, 2022, Respondents denied Rytsar’s
grievance.
On November 21, 2022, Rytsar filed the Petition6 seeking “emergency
relief/injunction,”7 claiming that Respondents violated her rights under the First
Amendment to the United States (U.S.) Constitution,8 by confiscating her legal
paperwork beginning on July 14, 2022. According to Rytsar,
[she] was called to the . . . [o]ffice on the SCI-[Cambridge
Springs] campus November 10, 2022[,] and told by staff
members[,] [C/Os] Osborne and Shuhayda, who were
accompanied by [Lt.] McCurdy, Security Supervisor, Lt.
3
The facts are as set forth in Rytsar’s Petition.
4
The documents attached to the Petition identify the grievance as No. 996819, but do not
contain a date on which the grievance was filed.
5
Rytsar has continued to seek review of her criminal conviction before the United States
Supreme Court at Docket No. 21-8203.
6
On June 5, 2023, Respondents filed preliminary objections to the Petition alleging therein
that Rytsar’s service thereof on them was defective. On June 7, 2023, this Court sustained
Respondents’ preliminary objections and directed Rytsar to properly serve the Petition on
Respondents and file a certificate of service with the Court. On June 20, 2023, Rytsar complied
with the June 7, 2023 Order.
7
Petition at 1. The Petition requests emergency/injunctive relief, but sounds in mandamus.
8
The First Amendment to the U.S. Constitution provides: “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.” U.S. CONST. amend. I.
2
Dugan, and Sup[erintendent] Overmyer, that [she] must
choose what legal work [she] would keep to fill up only
one box. [Rytsar] was told the rest would be sorted by
staff and thrown away. Prison staff are permitted to give
a cursory check to inmate privileged mail, but are not
permitted to read it. [Rytsar is] primarily Russian
speaking [and] told [the] officers, as best she could, that
she would have [a] difficult time sorting her mail in a
rushed fashion and under duress. [Rytsar] maintains it is
all relevant and needed for her to continue. [Rytsar] was
loudly and aggressively ordered to sort her mail so that it
would fit into one box. When she asked the staff again to
allow her [to have] another box as policy says she does not
have to be limited to one, [Rytsar] was given a Prison
Movement Pass and sent back to her unit, without her
mail.
Petition ¶ 11. Rytsar further avers in the Petition that Department Policy does not
limit the number of boxes to one, and that she has accumulated more papers than
one box would store in six years’ worth of litigation. See Petition ¶ 10. Rytsar also
alleges that Respondents violated her First Amendment rights to access the courts
and free speech by interfering with her legal mail when she did not receive an
October 3, 2022 U.S. Supreme Court Order denying her petition for a writ of
certiorari until October 31, 2022, because Respondents sent the October 3, 2022
Order back to the U.S. Supreme Court due to “Incorrect Coding.” Petition ¶ 7.
Specifically, Rytsar asserts:
Pursuant to Rule 44 of the [U.S.] Supreme Court filing
instructions, an [a]ppellant can [p]etition for a [r]ehearing
on a matter within 25 calendar days of an Order from the
[U.S. Supreme] Court. Due to [Respondents’]
interference . . . in both the privileged mail dissemination
practice and the denial of [Rytsar’s] mail, as it is all
currently still being kept in the Search Office of Lt.
McCurdy . . . [Rytsar] must now ask this Honorable Court
to direct [Department] staff to grant her access to her mail
so that she can attempt to use the information contained
therein to beg the [U.S.] Supreme Court to enlarge the
3
deadline of a [p]etition she needed to file in th[at] Court
by October 28, 2022.
Petition ¶¶ 8-9.
On July 11, 2023, Respondents filed the Preliminary Objections,
alleging therein that Rytsar cannot establish a clear right to relief. The parties filed
briefs in support of their respective positions and the matter is now ready for
disposition.
Initially,
[m]andamus is an extraordinary writ, reserved for those
instances where an agency has failed or refused to perform
a ministerial act or a mandatory duty. Mandamus may not
be used to establish legal rights, nor may it be used to
direct the exercise of discretion or judgment in a particular
way. To prevail, the petitioner seeking mandamus relief
must establish the following: (1) a clear right to relief; (2)
a corresponding duty in the respondent; and (3) the lack of
any other adequate and appropriate remedy.
MFW Wine Co., LLC v. Pa. Liquor Control Bd., 231 A.3d 50, 56 (Pa. Cmwlth. 2020)
(citations omitted), aff’d, 247 A.3d 1008 (Pa. 2021).
In ruling on preliminary objections, we must accept as true
all well-pleaded material allegations in the petition for
review, as well as all inferences reasonably deduced
therefrom. The Court need not accept as true conclusions
of law, unwarranted inferences from facts, argumentative
allegations, or expressions of opinion. In order to sustain
preliminary objections, it must appear with certainty that
the law will not permit recovery, and any doubt should be
resolved by a refusal to sustain them.
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
where the pleader has clearly failed to state a claim for
which relief can be granted. When ruling on a demurrer,
4
a court must confine its analysis to the [petition for review
in the nature of a] complaint.[9]
Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted).
Respondents aver in their Preliminary Objections that Rytsar’s request
for injunctive relief is unfounded because Respondents are permitted to reasonably
limit an inmate’s cell contents, and the inadvertent mishandling of one piece of legal
mail does not amount to a constitutional violation. Thus, Respondents’ assert that
Rytsar cannot establish a clear legal right to relief as required for mandamus.
With respect to Rytsar’s contention that Respondents
unconstitutionally denied her access to the courts by limiting her legal materials,
Section 3(B)(1) of the Department’s policy DC-ADM 815, titled, “Accumulation of
Items - Cell Content Limitations” (Policy), provides general cell storage restrictions
on inmate property:
An inmate in general population is permitted storage space
equal to four records center boxes. This space may consist
of four records center boxes or one footlocker and two
records center boxes. In a cell with a built-in, or
freestanding storage cabinet, the inmate is permitted to use
that space and either two records center boxes or one
footlocker.
DC-ADM 815, Section 3(B)(1).10
Rytsar contends in her Petition that in addition to the storage restrictions
referenced in DC-ADM 815, Section 3(B)(1), Section 3(B)(11) of the Policy also
9
“[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).
10
https://www.pa.gov/content/dam/copapwp-pagov/en/cor/documents/about-us/doc-
policies/815%20Personal%20Property,%20State%20Issued%20Items%20and%20Commissary%
20-%20Outside%20Purchases.pdf at 3-2 (last visited Sept. 6, 2024).
5
explicitly permits her to store the confiscated legal documents in her cell, stating, in
pertinent part:
11. The Facility Manager may permit an inmate to
maintain extra storage boxes for legal materials for active
cases:
a. the only legal material permitted will be court
filings, transcripts, notes of testimony, and notes
prepared by the inmate. This does not[] include
reference materials, books, or photocopied cases.
b. excess legal materials will be stored in a
separate box marked “Legal Materials Only;”
c. the inmate must send a DCA-135A, Inmate
Request to Staff Member, to the Facility
Manager/designee requesting permission to
maintain extra storage boxes for legal materials.
The DC-135A must describe the legal
materials . . .; and
d. if approved by the Facility Manager/designee, a
copy of the DC-135A shall be forwarded to the
Property Officer; the number of boxes permitted,
and a brief description of the contents shall be
noted on the inmate’s DC-153.
12. An inmate may not exceed the property limits
established by the Department. Excess property, as
determined by the Facility Manager/designee, may be
shipped out at the inmate’s expense or destroyed. If an
inmate has accumulated excess property prior to transfer
to another Department facility or release[d], the sending
facility shall ensure that the excess property is shipped out
at the inmate’s expense or destroyed, prior to the inmate’s
transfer.
Petition, Ex. 7 (underline emphasis added). Respondents granted Rytsar’s Request
for additional storage pursuant to Section 3(B)(11) of the Policy, but limited her to
one box of legal materials.
6
Rytsar argues that the use of the word “boxes” in Section 3(B)(11) of
the Policy entitles her to store more than one box of legal materials in her cell. DC-
ADM 815, Section 3(B)(11). This Court has explained:
Allegations that corrections officers have failed to follow
rules and regulations promulgated or adopted by prison
officials that do not also allege this failure has violated a
clearly established statutory or constitutional right of a
prison inmate cannot state a claim for mandamus, because
administrative rules and regulations “do not create rights
in prison inmates.” Commonwealth ex rel. Buehl v. Price,
705 A.2d 933, 936 (Pa. Cmwlth. 1997); Lawson v. Dep[’t]
of Corr[.], . . . 539 A.2d 69, 71-72 ([Pa. Cmwlth.] 1988).
Administrative regulations are not statutes or
constitutional provisions.
Tindell v. Dep’t of Corr., 87 A.3d 1029, 1035 (Pa. Cmwlth. 2014); see also Bullock
v. Horn, 720 A.2d 1079, 1082 n.6 (Pa. Cmwlth. 1998) (“Administrative regulations
or policies do not create rights in inmates.”). Specifically, this Court recognized that
DC-ADM 815, Section 3(B)(11) is “permissive, giving each facility the discretion
to allow—or, alternatively, deny— . . . extra storage boxes.” Jordan v. Pa. Dep’t of
Corr. (Pa. Cmwlth. No. 416 M.D. 2016, filed Sept. 25, 2017), slip op at 6.11
Moreover, the Pennsylvania Supreme Court has observed:
[R]easonable prison regulations regarding the quantity and
type of property that inmates may possess do not violate
due process guarantees. See, e.g., Bell v. Wolfish, 441 U.S.
520, 554 . . . (1979) (noting that prisoners’ due process
rights with respect to possession of property are not
absolute, but are “subject to reasonable limitation or
retraction in light of the legitimate security concerns of
the institution”) (emphasis added); Ford v. Schmidt, 577
F.2d 408 (7th Cir. 1977) (upholding, against a
constitutional challenge, regulations established by prison
11
This Court’s unreported memorandum opinions may be cited “for [their] persuasive
value, but not as binding precedent.” Section 414(a) of the Commonwealth Court’s Internal
Operating Procedures, 210 Pa.Code § 69.414(a). The unreported opinions referenced herein are
cited for their persuasive value.
7
officials concerning the possession of property by
inmates).
Small v. Horn, 722 A.2d 664, 671 (Pa. 1998); see also Iseley v. Beard, 841 A.2d 168(Pa. Cmwlth. 2004) (rejecting a prisoner’s claim that he has a right to possess legal
documents in an amount greater than what the Department’s Policy provides
because restrictions on legal materials kept in an inmate’s cell are reasonably related
to the legitimate penological goals); Hackett v. Horn, 751 A.2d 272, 275 (Pa.
Cmwlth. 2000) (explaining that “limitations imposed . . . on materials, including
legal materials, that may be kept in an inmate’s cell are reasonably related to the
legitimate penological goals of safety, security[,] and fire hazard concerns”). In
accordance with well-established precedent, Rytsar has no right to seek mandamus
relief to require Respondents to comply with the Department’s Policy or to apply it
consistently with her interpretation.
Rytsar also asserts that Respondents violated her constitutional rights
when Respondents returned her mail - a U.S. Supreme Court Order denying
certiorari - due to “Incorrect Coding,” and Respondents’ return of such mail to the
U.S. Supreme Court and their retention of her legal materials has impaired her access
to the courts. Petition ¶¶ 6-8.
[T]he First Amendment to the [U.S.] Constitution has long
been interpreted by the courts as including a general right
to communicate by mail. See, e.g., Turner [v. Safley], 482
U.S. [78,] 91-93 [(1987)] (analyzing constitutionality of
regulation restricting inmate-to-inmate mail); Thornburgh
v. Abbott, 490 U.S. 401 . . . (1989) (analyzing
constitutionality of regulation restricting prisoner receipt
of outside publications by mail).
Bussinger v. Dep’t of Corr., 29 A.3d 79, 84-85 (Pa. Cmwlth. 2011), aff’d, 65 A.3d
289 (Pa. 2013). Notwithstanding, this Court has held that “a single [incident of
mishandling] legal mail . . . may not infringe a prisoner’s right to free speech or his
right to court access absent a showing of actual injury.” Jones v. Doe, 126 A.3d 406,
8
409 (Pa. Cmwlth. 2015). Here, Rytsar references a single incident, whereby
Respondents returned her U.S. Supreme Court Order due to incorrect coding which,
alone, does not constitute an infringement on Rytsar’s First Amendment rights.
To the extent that Rytsar argues that Respondents’ return of the U.S.
Supreme Court’s Order and retention of her legal materials has impaired her First
Amendment right to access to the courts, this Court has explained:
[D]enial of access to legal documents may constitute a
violation of a prisoner’s First Amendment right to petition
the courts and/or Fourteenth Amendment[12] due process
rights, Zilich v. Lucht, 981 F.2d 694, 695 (3d Cir. 1992)[.
However], in order to state a cognizable claim for
violation of the right to access to the courts, a prisoner
must allege and offer proof that he suffered an “actual
injury” to court access as a result of the denial. Oliver
v. Fauver, 118 F.3d 175, 177-78 (3d Cir. 1997). The
Supreme Court has defined actual injury as the loss or
rejection of a nonfrivolous legal claim regarding the
sentencing or the conditions of confinement. Lewis v.
Casey, 518 U.S. 343 . . . (1996).
Hackett, 751 A.2d at 275-76 (emphasis added) (quoting Robinson v. Ridge, 996 F.
Supp. 447, 449 (E.D. Pa. 1997), aff’d, 175 F.3d 1011 (3d Cir.1999)).
Recently, this Court explained:
While a prisoner’s right to access the courts is derived
from an express provision of the Pennsylvania
Constitution and multiple provisions of the [U.S.]
Constitution, the analysis under both federal and state law
is the same. See, e.g., Bronson v. Horn, 830 A.2d 1092,
1094-95 (Pa. Cmwlth. 2003).
....
[A]t a minimum, [p]etitioner would have needed to (1)
allege he had a nonfrivolous, arguable underlying
12
The Due Process clause of the Fourteenth Amendment to the U.S. Constitution states:
“No [s]tate shall make or enforce any law which shall . . . deprive any person of life, liberty, or
property, without due process of law.” U.S. CONST. amend. XIV, § 1.
9
claim, and (2) describe how the [p]olicy frustrated his
ability to pursue that claim. See Christopher v. Harbury,
536 U.S. 403 . . . (2002) (“Like any other element of an
access claim, the underlying cause of action and its lost
remedy must be addressed by allegations in the [petition
for review] sufficient to give fair notice to a
defendant.”); see also Lewis, 518 U.S. at 351 (“the inmate
therefore must go one step further and demonstrate that the
alleged shortcomings in the [Policy] hindered his efforts
to pursue a legal claim”).[13]
Wishnefsky v. Pa. Dep’t of Corr., (Pa. Cmwlth. No. 191 M.D. 2021, filed May 19,
2023), slip op. at 5-6 (emphasis added; footnotes omitted). Thus, “[i]n order to
survive dismissal of a complaint, a prisoner must describe an underlying claim
and explain why it possesses arguable merit.” Nifas v. Sroka (Pa. Cmwlth. No.
422 C.D. 2016, filed July 29, 2016), slip op. at 7 (emphasis added).14 The prisoner
13
Similarly, in Sierra v. Pennsylvania Department of Corrections (Pa. Cmwlth. No. 88
M.D. 2019, filed Oct. 6, 2021), this Court observed:
[I]n a denial of access claim, “the named [petitioner] must identify
a ‘nonfrivolous,’ ‘arguable’ underlying claim” lost to him as a result
of the alleged interference with his access to the courts.
Christopher, 536 U.S. at 415. Therefore, to prosecute an access to
courts claim a petitioner must, at a minimum, (1) allege that he
has a nonfrivolous, arguable underlying claim, and (2) describe
how the [Department], through the challenged policy, frustrated his
ability to pursue that claim. See id. at 416 (“Like any other element
of an access claim, the underlying cause of action and its lost remedy
must be addressed by allegations in the [petition for review]
sufficient to give fair notice to a defendant.”)[.]
Sierra, slip op. at 7 (emphasis added). Nonetheless, the Dissent objects to this Court evaluating
the “frivolity or nonfrivolity of the underlying claim[,]” Rytsar v. Super. Overmyer (Pa. Cmwlth.
No. 571 M.D. 2022, filed Sept. 9, 2024) (McCullough, J., dissenting) (Dissent), slip op. at 3.
14
See also Satterfield v. Pa. Dep’t of Corr. (Pa. Cmwlth. No. 351 M.D. 2018, filed Apr.
22, 2020), slip op. at 7 (“because [the prisoner] did not aver which claims were either ‘los[t] or
reject[ed],’ much less specify facts demonstrating that the claims were ‘nonfrivolous,’ [the
prisoner] has failed to state a claim for denial of access to the courts. Hackett, 751 A.2d at 275-
76”) (emphasis added); see also Horan v. Newingham (Pa. Cmwlth. No. 2622 C.D. 2015, filed
Oct. 24, 2016), slip op. at 15 (“to succeed on a denial of access claim, a plaintiff must show that
he has suffered an actual injury; that is, the loss of a nonfrivolous legal claim, Hackett, 751 A.2d
10“must demonstrate ‘that the ‘arguable’ nature of the underlying claim is more
than hope.’ Christopher . . . , 536 U.S. [at] 416. . . .” Horan v. Newingham (Pa.
Cmwlth. No. 2622 C.D. 2015, filed Oct. 24, 2016), slip op. at 15 (emphasis added).
Here, the U.S. Supreme Court denied Rytsar’s Petition for Writ of
Certiorari. Rytsar’s complaint is founded in an alleged impairment of her right to
request reargument of the U.S. Supreme Court’s dismissal of her appeal.15
However, Rytsar provides no basis or justification for seeking reargument such that
this Court can determine whether it is “a nonfrivolous, arguable underlying
at 275, and must demonstrate ‘that the ‘arguable’ nature of the underlying claim is more than
hope.’ Christopher . . . , 536 U.S. [at] 416 . . ..”) (emphasis added).
15
In deciding to grant rehearing of an order denying a petition for a writ of certiorari, Rule
44(2) of the Rules of the U.S. Supreme Court (Rule 44(2)) states that the “grounds shall be limited
to intervening circumstances of a substantial or controlling effect or to other substantial grounds
not previously presented.” Id. Here, Rytsar made no such allegations regarding her claim, thus,
contrary to the Dissent’s assertions, this Court is not usurping the U.S. Supreme Court’s decision
making, but rather, stating that Rytsar did not sufficiently plead that she had a nonfrivolous claim.
Although not involving the U.S. Supreme Court, this Court has addressed an inmate’s
failure to submit sufficient evidence to support a denial of access claim in a case involving the
U.S. Third Circuit Court of Appeals (Third Circuit) and the Pennsylvania Supreme Court. In
Feliciano v. Folino (Pa. Cmwlth. No. 900 C.D. 2014, filed Feb. 20, 2015), a prisoner claimed that
the Department’s actions in taking his legal materials resulted in him being unable to properly
challenge the Superior Court’s denial of his second Post Conviction Relief Act[, 42 Pa. C.S. §§
9541-9546,] petition in an appeal to the Pennsylvania Supreme Court and impaired his attempt to
file a motion for rehearing from the Third Circuit’s denial of his second habeas corpus petition.
This Court affirmed the trial court’s grant of summary judgment for the prisoner’s failure
to submit sufficient evidence to support his denial of access claim.
[The prisoner’s] “lost” legal opportunities - a discretionary appeal
to our Supreme Court and a discretionary motion for rehearing
before the Third Circuit - are merely “hopes” that those courts would
grant review, and [the prisoner’]s [42 U.S.C. §] 1983 claim must
necessarily fail. See Christopher . . . , 536 U.S. [at] 416 . . .
(explaining that to prevail on a denial of access claim, the plaintiff
must “show that the ‘arguable’ nature of the underlying claim is
more than hope.”).
Folino, slip op. at 6. Nothing in Rule 44(2) changes this analysis.
11
claim[.]”16 Wishnefsky, slip op. at 6. Because, Rytsar does not allege and offer proof
that she has “a nonfrivolous legal claim[,]” Hackett, 751 A.2d at 275, she has not
shown that she suffered an actual injury such that Respondents’ actions resulted in
the loss or rejection thereof.17 Accordingly, Rytsar has failed to state a cognizable
claim for violation of her First Amendment right to access to the courts.
For all of the above reasons, Respondents’ Preliminary Objections are
sustained, and Rytsar’s Petition is dismissed.
_________________________________
ANNE E. COVEY, Judge
16
In fact, Rytsar makes no allegation regarding the validity of her legal claim, why her
proposed request for rehearing is nonfrivolous, or even the basis for her proposed rehearing
request. Further, Rytsar has not alleged that she filed a reargument request with the U.S. Supreme
Court seeking nunc pro tunc relief.
17
Rytsar’s discretionary appeal is “merely [a] ‘hope[]’ that th[e] court[] w[ill] grant
review[.]” Feliciano, slip op. at 6.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Galina Rytsar, :
Petitioner :
:
v. :
:
Superintendent Overmyer, :
Lt. McCurdy, Lt. Dugan, C/O Osborne, :
C/O Shuhayda, : No. 571 M.D. 2022
Respondents :
ORDER
AND NOW, this 9th day of September, 2024, the preliminary objections
filed by the Pennsylvania Department of Corrections’ employees at the State
Correctional Institution at Cambridge Springs, Superintendent Overmyer,
Lieutenant (Lt.) McCurdy, Lt. Dugan, Corrections Officer (C/O) Osborne, and C/O
Shuhayda are sustained; Galina Rytsar’s pro se Petition for Emergency
Relief/Injunction is dismissed.
_________________________________
ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Galina Rytsar, :
Petitioner :
:
v. : No. 571 M.D. 2022
: Submitted: July 5, 2024
Superintendent Overmyer, :
Lt. McCurdy, Lt. Dugan, C/O Osborne, :
C/O Shuhayda :
Respondents :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE McCULLOUGH FILED: September 9, 2024
I respectfully dissent from the Majority’s conclusion that Rytsar failed
to state a cognizable claim for violation of the First Amendment, U.S. Const. amend.
I, right to access to the courts. I specifically distance myself from the notion that
this Court has any authority to pass on the likelihood that Rytsar would succeed on
her petition to the United States (U.S.) Supreme Court for the rehearing of its denial
of her petition for a writ of certiorari. Rule 44(2) of the Rules of the United States
Supreme Court provides:
2. Any petition for the rehearing of an order denying a
petition for a writ of certiorari or extraordinary writ
shall be filed within 25 days after the date of the order of
denial and shall comply with all the form and filing
requirements of paragraph 1 of this Rule, including the
payment of the filing fee under Rule 38(b) in any case in
which the filer paid the filing fee under Rule 38(a), but its
grounds shall be limited to intervening circumstances
of a substantial or controlling effect or to other
substantial grounds not previously presented. The time
for filing a petition for the rehearing of an order denying a
petition for a writ of certiorari or extraordinary writ will
not be extended. The petition shall be presented together
with certification of counsel (or of a party unrepresented
by counsel) that it is restricted to the grounds specified in
this paragraph and that it is presented in good faith and not
for delay; one copy of the certificate shall bear the
signature of counsel (or of a party unrepresented by
counsel). The certificate shall be bound with each copy of
the petition. The Clerk will not file a petition without a
certificate. The petition is not subject to oral argument.
U.S Supreme Court Rule 44(2) (emphasis added).
The U.S. Supreme Court mailed Rytsar a notice, denying her petition
for writ of certiorari. But Rytsar did not receive the notice timely as it was rejected
and returned by the Department due to coding errors. Rytsar then missed the filing
deadline to file a petition for rehearing. Under Rule 44 of the Rules of the U.S.
Supreme Court, Rytsar had 25 days from the date of the U.S. Supreme Court’s order
to petition that Court for a rehearing of its order denying Rytsar’s petition for writ
of certiorari. The Majority rejects her access to courts claim because she “provides
no basis or justification for seeking reargument such that this Court can determine
whether it is . . . nonfrivolous.” Rytsar v. Superintendent Overmeyer (Pa. Cmwlth.,
No. 571 M.D. 2022, filed September 9, 2024), slip op. at 10 (citing cases).
Rytsar sufficiently describes the “lost remedy” as her clear legal right
to petition for rehearing before the U.S. Supreme Court. However, she avers that
right was lost by not timely being provided the U.S. Supreme Court notice. None of
PAM - 2
the cases cited by the Majority involve a lost opportunity to petition the U.S.
Supreme Court for a rehearing of its order denying a petition for a writ of certiorari.
I do not agree that we can expand those cases to encompass a situation where, as
here, the frivolity or non-frivolity of the underlying claim is strictly for the U.S.
Supreme Court to decide within the framework of Rule 44(2). I believe it is outside
the province of this Court to predict how the Justices of the U.S. Supreme Court
would vote to grant rehearing, to give any consideration as to predicting the final
outcome of the case, or whether a majority of the U.S. Supreme Court would
conclude that the decision below was erroneous. Because I believe it is strictly for
the U.S. Supreme Court to consider whether the issues posed by a petitioner are
sufficiently meritorious to grant certiorari, I must dissent.
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PATRICIA A. McCULLOUGH, Judge
PAM - 3