Document Info

DocketNumber: 684 M.D. 2019

Judges: Leavitt, President Judge Emerita

Filed Date: 1/29/2024

Status: Precedential

Modified Date: 1/29/2024

  •             IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Michael C. Romig,                   :
    Petitioner :
    :
    v.                     :                   No. 684 M.D. 2019
    :                   Submitted: July 14, 2023
    John Wetzel, Kathy Brittian,        :
    Keri Moore and Department of        :
    Corrections,                        :
    Respondents:
    BEFORE:        HONORABLE ANNE E. COVEY, Judge
    HONORABLE MICHAEL H. WOJCIK, Judge
    HONORABLE MARY HANNAH LEAVITT, Senior Judge
    OPINION
    BY SENIOR JUDGE LEAVITT                                 FILED: January 29, 2024
    Michael C. Romig, pro se, has filed a petition for review1 in the nature
    of a mandamus action against John Wetzel, Kathy Brittian,2 Keri Moore, and the
    Department of Corrections (Department), seeking to compel the Department to
    comply with its procedures for the handling of legal mail. The gravamen of Romig’s
    action is that the Department’s mailroom rejected certified mail from the Mifflin
    County Tax Claim Bureau (Tax Bureau) without providing him notice of the
    1
    In December 2019, Romig filed a document titled “Appeal From Administrative Review of
    Secretary’s Office of Inmate Grievances & Appeals.” This was followed in March 2020 by a
    document titled “Petition for Review (In the Nature of a Complaint in Mandamus),” seeking an
    order from this Court requiring the Department to respond to his aforementioned December 2019
    filing and to enter a judgment against the Department for damages for failing to perform its “duty
    required by law.” Petition for Review, 3/18/2020, at 2. The Petition for Review incorporates by
    reference his December 2019 grievance appeal. We view the documents, together, as constituting
    Romig’s petition for review and distinguish them herein by date, rather than by the title Romig
    assigned to each filing. See Madden v. Jeffes, 
    482 A.2d 1162
    , 1165 (Pa. Cmwlth. 1984) (“We do
    not hold pro se complainants to the stringent standards expected of pleadings drafted by lawyers,
    and will examine the substance of their complaint to determine if [the complainants] would be
    entitled to relief if they proved the facts averred.”).
    2
    While her name is spelled “Brittian” in the caption, it appears that the correct spelling is Brittain.
    See Petition for Review, 12/17/2019, Attachment at 4.
    rejection. Believing that his right to relief is clear and no material issue of fact is in
    dispute, Romig has filed a motion for judgment on the pleadings.3 The Department
    has filed a cross-application for summary relief.
    Romig, who is incarcerated at the State Correctional Institution (SCI)
    at Frackville, has filed a petition for review challenging the handling of his mail.
    The petition alleges that mail for SCI-Frackville is received and processed at SCI-
    Mahanoy. It further alleges that certified mail sent to Romig by the “Mifflin County
    Court of Common Pleas and [] Tax Bureau,” i.e., “[l]egal [m]ail,” was rejected by
    SCI-Mahanoy’s mailroom. Petition for Review, 12/17/2019, ¶2. Because SCI-
    Mahanoy did not notify Romig that it had rejected this certified mail, Romig filed a
    grievance with the Department’s inmate grievance system.
    Romig’s grievance was denied. SCI-Mahanoy’s mailroom supervisor,
    F. Walter, responded to Romig on September 19, 2019, stating, in pertinent part:
    Mail coming from a Sheriff’s Office is not considered legal mail
    as per the [Department’s] legal department. Any mail coming
    from the Sheriff’s Office should be sent through Smart
    Communications. When mail is refused the mail is not opened
    and the inmate is not notified[.]
    
    Id.,
     Attachment at 2 (emphasis added). The petition asserts that Walter’s response
    “seems to attempt to circumvent regular mail procedure for legal mail procedure.”
    Id. ¶6.
    Romig appealed the denial of his grievance to Kathy Brittain, Facility
    Manager, who upheld the denial. Brittain explained that Romig’s grievance was
    3
    Romig titled his filing “Motion for Judgment on Pleadings/Dispositive Motion,” which the Court
    will treat as an application for summary relief under Pennsylvania Rule of Appellate Procedure
    1532(b), PA.R.A.P. 1532(b). For summary relief, the record “is the same as a record for purposes
    of a motion for summary judgment.” Summit School, Inc. v. Department of Education, 
    108 A.3d 192
    , 195-96 (Pa. Cmwlth. 2015).
    2
    inadequate because he did not “provide a date or any evidence to substantiate that
    mail was sent by [the] Mifflin County Court of Common Pleas” or state in his
    grievance that the rejected mail was sent by certified mail. Petition for Review,
    12/17/2019, Attachment at 4. Romig notes that it was impossible for him to provide
    this information because he never received notice that his mail had been refused.
    Romig appealed Brittain’s response to the Department’s Office of
    Inmate Grievances and Appeals, asserting that Brittain incorrectly applied the
    Department’s mail policy. In his grievance appeal, Romig further contended that
    Brittain’s response did not address his grievance “that the mail came from [the]
    ‘Mifflin County Courthouse,’ and relies only on the mention of the ‘[S]heriff’s
    Office’, [] in [an] attempt to circumvent the circumstances.” 
    Id.,
     Attachment at 5.
    The Department’s Chief Grievance Officer concluded that “[t]he
    possible scenario surrounding this returned mail was explained to you; however,
    without more specific information such as a date, no further information can be
    provided.” Petition for Review, 12/17/2019, Attachment at 7. The Chief Grievance
    Officer added: “Further, despite your claims, no notification is required to be
    provided to an inmate when mail is refused[;] the sender is advised of the issue and
    has the option to fix it and resend the mail.” 
    Id.
    In his petition for review, Romig, citing Procunier v. Martinez, 
    416 U.S. 396
    , 418-19 (1974), contends that an inmate must be afforded (1) notice of a
    mail rejection, (2) a reasonable opportunity to appeal the rejection, and (3) a review
    by a prison official other than the official who made the initial decision. He claims
    that the Department’s rejection of his mail without notice to him violated his rights
    3
    under the First4 and Fourteenth5 Amendments to the United States Constitution.
    Petition for Review, 12/17/2019, ¶4. He also claims a violation of the Department’s
    policy on processing an inmate’s legal mail. Romig’s petition asserts that an inmate
    must be notified whenever the Department rejects any inmate mail. Romig seeks an
    order from this Court awarding him $80,000 in “punitive damages” and compelling
    the Department “to formulate steps to prevent this from happening again.” Id. at 3.
    In response to Romig’s petition for review, the Department filed
    preliminary objections asserting a lack of allegations personally involving John
    Wetzel, Kathy Brittain, and Keri Moore and a demurrer to Romig’s First and
    Fourteenth Amendment claims. The preliminary objections were sustained in part
    and overruled in part. Wetzel, Brittain and Moore were dismissed from the matter,
    but the Department’s demurrer to Romig’s First and Fourteenth Amendment claims
    was overruled. Subsequently, the Department filed an answer to the petition for
    review.
    On January 19, 2023, Romig filed a “Motion for Judgment on
    Pleadings/Dispositive Motion,” arguing that “[i]t is clear that [his] constitutional
    rights have been violated by the Department[’s] [] actions/inactions, resulting in loss
    of property damages.” Romig Motion ¶1. The Department filed a cross-application
    for summary relief in the form of a motion for judgment on the pleadings, arguing
    4
    U.S. CONST. amend. I. It states: “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.”
    5
    U.S. CONST. amend. XIV. It states, in part: “No State shall make or enforce any law which shall
    abridge the privileges or immunities of citizens of the United States; nor shall any State deprive
    any person of life, liberty, or property, without due process of law[.]”
    4
    that Romig cannot establish a deprivation of a protected interest because his claim
    relates to the rejection of a single piece of mail sent by the Tax Bureau.
    An application for summary relief is governed by Pennsylvania Rule of
    Appellate Procedure 1532(b). Rule 1532(b) provides that “[a]ny 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.”
    PA.R.A.P. 1532(b). In evaluating an application for summary relief, the Court
    applies the same standards that apply to summary judgment.                   Myers v.
    Commonwealth, 
    128 A.3d 846
    , 849 (Pa. Cmwlth. 2015) (quoting McGarry v.
    Pennsylvania Board of Probation and Parole, 
    819 A.2d 1211
    , 1214 n.7 (Pa.
    Cmwlth. 2003)). Specifically, summary relief is appropriate where the moving
    “party’s right to judgment is clear” and no material issues of fact are in dispute.
    Myers, 
    128 A.3d at 849
     (quoting McGarry, 
    819 A.2d at
    1214 n.7).
    Mandamus is an extraordinary remedy used to compel the performance
    of a ministerial act or mandatory duty where a petitioner establishes (1) a clear legal
    right to relief, (2) a corresponding duty in the respondent, and (3) a lack of any other
    adequate and appropriate remedy at law. Tindell v. Department of Corrections, 
    87 A.3d 1029
    , 1034 (Pa. Cmwlth. 2014). The purpose of mandamus is not to establish
    rights or to compel performance of discretionary acts but, instead, to enforce rights
    that have been clearly established. 
    Id.
     Ordinarily, “mandamus is not a proper
    vehicle for challenging the constitutionality of a statute, regulation or policy.” Clark
    v. Beard, 
    918 A.2d 155
    , 159 (Pa. Cmwlth. 2007). This is because a writ of
    mandamus would compel “a governmental ministerial officer to act in disobedience
    of the requirements of a relevant statute, before there has been a judicial
    5
    pronouncement of [its] invalidity[.]” Unger v. Hampton Township, 
    263 A.2d 385
    ,
    388 (Pa. 1970) (quoting Booz v. Reed, 
    157 A.2d 170
    , 172 (Pa. 1960)).
    This Court has considered the constitutionality of the Department’s
    mail policy. In Ortiz v. Pennsylvania Department of Corrections (Pa. Cmwlth., No.
    615 M.D. 2018, filed September 14, 2021) (unreported),6 we examined the
    Department’s handling of both privileged and non-privileged mail. There, an inmate
    at SCI-Pine Grove alleged that the Department’s mail policy, at the time, imposed
    an impermissible burden on his constitutional rights to receive mail and to privacy
    because the original versions of his mail were sent to a third-party vendor where they
    were copied. Copies, not the original documents, were then sent to him. The inmate
    sought injunctive relief to enjoin the Department’s mail policy.
    We held that the handling of non-privileged mail does not implicate a
    right to privacy. With respect to privileged mail, the analysis is different. After
    Ortiz filed his petition, the Department entered into a settlement in federal court,
    agreeing to stop copying privileged mail and to continue to use the attorney control
    number system.7 On that basis, we concluded: “[The] mail policy does not violate
    [the inmate’s] constitutional rights.” Ortiz, slip op. at 9.
    Notably, Ortiz did not consider the issue of mail rejection and whether
    an inmate is entitled to notice thereof. We must, therefore, consider whether the
    Department’s failure to notify Romig of rejected mail violated his constitutional
    rights. We begin with Romig’s First Amendment claim.
    6
    An unreported panel decision of Commonwealth Court, issued after January 15, 2008, may be
    cited for its persuasive value. See Commonwealth Court Internal Operating Procedure Section
    414, 
    210 Pa. Code §69.414
    .
    7
    The Department has established procedures for attorneys to send privileged legal mail to an
    inmate under Policy DC-ADM 803. This policy requires an attorney to obtain a control number
    pursuant to 
    37 Pa. Code §93.2
    .
    6
    Romig argues that his First Amendment rights were violated “because
    the mail had regards [sic] to the possible transfer of real estate property, currently
    owned by [Romig], of which he has a liberty interest in the real estate property, and
    deprivation of that protected liberty interest was hindered by the [Department’s]
    withholding and returning of mail to sender without notice to intended recipient.”
    Romig Brief at 6.
    The First Amendment to the United States Constitution protects an
    inmate’s general right to communicate by mail. Rivera v. Silbaugh, 
    240 A.3d 229
    ,
    238 (Pa. Cmwlth. 2020). To prove a claim of interference with this right, the plaintiff
    must show that the interference was done according to a “pattern and practice.” Hill
    v. Pennsylvania Department of Corrections, 
    271 A.3d 569
    , 578 (Pa. Cmwlth. 2022)
    (quoting Hill v. Commonwealth (Pa. Cmwlth., No. 684 M.D. 2018, filed September
    12, 2019), slip op. at 7). A “single, isolated interference with [an inmate’s] personal
    mail [is] insufficient to constitute a First Amendment violation.” Rivera, 240 A.3d
    at 238 (quoting Nixon v. Secretary of Pennsylvania Department of Corrections, 
    501 F. App’x 176
    , 178 (3d Cir. 2012)).
    In this case, Romig’s petition describes a single incident, which does
    not give rise to a constitutional violation. Thus, Romig has failed to establish a
    violation of the First Amendment.
    We next address Romig’s Fourteenth Amendment due process claim,
    which requires the plaintiff to establish the deprivation of a protected liberty or
    property interest. Shore v. Pennsylvania Department of Corrections, 
    168 A.3d 374
    ,
    383 (Pa. Cmwlth. 2017). Only then will the Court consider what type of procedural
    mechanism is required to satisfy due process. “Procedural due process rights are
    triggered by deprivation of a legally cognizable liberty interest. For a prisoner, a
    7
    deprivation occurs when the prison ‘imposes atypical and significant hardship on the
    inmate in relation to the ordinary incidents of prison life.’”                  Feliciano v.
    Pennsylvania Department of Corrections, 
    250 A.3d 1269
    , 1275 (Pa. Cmwlth. 2021)
    (quoting Sandin v. Conner, 
    515 U.S. 472
    , 484 (1995)). “Lesser restraints on a
    prisoner’s freedom are deemed to fall ‘within the expected perimeters of the sentence
    imposed by a court of law.’” Id. at 1275-76 (quoting Sandin, 
    515 U.S. at 484
    ).
    Here, the Department processed Romig’s mail in accordance with its
    mail policy. On its face, Romig’s mail did not appear to be legal mail because it did
    not originate with his attorney, the court, or an elected or appointed federal, state, or
    local official; it did not contain an attorney control number. Based on the allegations
    in the petition for review, the rejected mail was a notice from the Tax Bureau
    advising him of an impending sheriff’s sale of his home and property. The question
    is whether the Department had a duty to provide notice to Romig that this mail had
    been rejected and returned to the sender.
    In Vogt v. Wetzel, 
    8 F.4th 182
     (3d Cir. 2021), the United States Third
    Circuit Court of Appeals held that prisons must notify inmates when their mail has
    been rejected.8 That case involved facts, summarized by the Court of Appeals as
    follows:
    Three decades ago, Vogt and Arthur McClearn were part of a
    group who took Francis Landry to a quarry. There, the group
    forced Landry off a cliff into the water before rolling a “huge
    rock” in behind him. Landry suffered blunt force trauma and
    8
    The Vogt decision is consistent with Procunier. In Procunier, the United States Supreme Court
    invalidated California prison regulations that provided for the routine censorship of inmates’
    outgoing personal correspondence, on the grounds that the regulations violated the free speech
    rights of the prisoners’ correspondents. 
    416 U.S. at 408
    . “In the years after Procunier [], the
    [Supreme] Court abandoned the distinction between the free speech rights of inmates and their
    correspondents on the outside.” Hill v. Pennsylvania Department of Corrections, 
    271 A.3d 569
    ,
    574 (Pa. Cmwlth. 2022) (quoting Bieregu v. Reno, 
    59 F.3d 1445
    , 1451-52 (3d Cir. 1995)).
    8
    drowned. Vogt and McClearn were arrested shortly afterward.
    McClearn pleaded guilty to third-degree murder. Vogt went to
    trial, where McClearn’s testimony linked him to Landry’s death.
    The jury convicted Vogt of several crimes, including first-degree
    murder. As a result, he was sentenced to life without parole.
    Not long before McClearn died, he sent a letter to Vogt dated
    October 23, 2016, in which he recanted his trial testimony.
    Explaining he was “ready to tell the truth,” McClearn said his
    testimony was a lie. McClearn wrote that he had a different
    partner in crime that night; Vogt was “passed out in the car” and
    “did not go to the quarry.” So according to the letter—and
    contrary to McClearn’s testimony at trial—Vogt did not have
    “anything to do with” Landry’s murder.
    McClearn’s letter never made it to Vogt that fall. The prison’s
    policy is to reject mail lacking a return address, so it rejected the
    letter. Some six months later, Vogt contacted a United States
    Postal Service reclamation center looking for a different mailing.
    The Post Office returned several items, one of which was
    McClearn’s letter. But by that time, McClearn had been dead for
    about five months.
    Vogt, 8 F.4th at 184 (internal citations omitted).
    In Vogt, the Court of Appeals rejected the Department’s contention that
    Procunier applied only to censorship cases. Vogt concerned a content-neutral mail
    rejection policy, and the Court of Appeals determined that “[t]he trouble with [the
    Department’s] argument is Procunier identified a liberty interest in corresponding
    by mail[, a]nd just as a censorship policy constrains correspondence by mail, so too
    does a rejection policy.” Id. at 186. The Third Circuit noted that “[b]ecause we hold
    Vogt has a liberty interest under Procunier, we need not address whether he has a
    property interest.” Id. at 187. Noting that it was unclear whether Vogt had alleged
    a free speech claim, the Court of Appeals determined that the issue should be
    resolved by the District Court on remand. The Court concluded as follows:
    9
    A host of compelling interests can justify prison mail regulations.
    But prisoners like Vogt have a liberty interest in corresponding
    by mail. So, when the prison rejected his letter, notification was
    required. Consistent with these principles, Vogt stated a claim
    that his right to procedural due process was violated because he
    alleged [the] letter [at issue] was rejected without notice.
    Id. Accordingly, the Court of Appeals vacated the District Court’s order dismissing
    Vogt’s Fourteenth Amendment procedural due process claim.              In sum, Vogt
    established that prisons must provide minimal procedural safeguards when they
    censor or withhold delivery of a particular letter.
    Here, a letter was sent to Romig from the Tax Bureau. The Department
    rejected that letter and returned it to the sender, without providing notice to Romig.
    Romig has a liberty interest in corresponding by mail. Vogt, 8 F.4th at 187. When
    the Department rejected the letter from the Tax Bureau addressed to Romig and did
    not provide him with notice of such, it violated Romig’s right to due process. See
    generally Vogt, 8 F.4th at 186-87; Procunier, 
    416 U.S. at 417-18
    .
    The Department argues that Romig’s claim is barred by qualified
    immunity because the constitutional right of a prisoner to receive notice of prison
    officials’ rejection of that inmate’s incoming, non-legal mail had not been clearly
    established when it occurred. However, Procunier predates Vogt, and it established
    a due process right to notice and an opportunity to challenge a prison’s rejection of
    an inmate’s mail. See Mojica Carrion v. Wetzel, No. 4:22-CV-00051, 
    2023 WL 4534597
    , at *7 (M.D. Pa. July 13, 2023). Therefore, qualified immunity does not
    shield the Department from Romig’s claim.
    Romig seeks an order from this Court awarding him $80,000 in
    “punitive damages” and compelling the Department “to formulate steps to prevent
    this from happening again.”       Petition for Review, 12/17/2019, at 2-3.         The
    10
    Department counters that any injury sustained by Romig as a result of the rejection
    of the letter was not irreparable. Department’s Brief at 15. The Real Estate Tax Sale
    Law (Tax Sale Law)9 permits a taxpayer to file objections or exceptions to the tax
    sale itself.
    First, Romig’s claim for punitive damages against the Commonwealth
    and its agencies and employees is barred.10 42 Pa. C.S. §8528(c); Feingold v.
    Southeastern Pennsylvania Transportation Authority, 
    517 A.2d 1270
    , 1276-77 &
    n.8 (Pa. 1986). Second, on March 31, 2022, the Department directed all SCI
    mailrooms and security officers, “effective immediately,” that “mailrooms should
    begin using the Unacceptable Correspondence Form any time mail is addressed to
    an inmate, the inmate’s identity is known, and the mail is being returned to the
    sender, confiscated or otherwise will not be delivered to the inmate by the
    mailroom.” Department New Matter ¶¶1-2. Romig admits that the Department
    “began to make changes to [the mail policy], where inmates must be notified of
    incoming mail that is refused.” Romig Answer to New Matter ¶1. In fact, on March
    5, 2022, Romig received an Unacceptable Correspondence Form for mail sent from
    the Tax Bureau without a control number. Department New Matter ¶3; Romig
    Answer to New Matter ¶3 (“This New Matter should not be confused with the piece
    9
    Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§5860.101-5860.803.
    10
    Further, Romig did not suffer any damages. After learning that the Tax Bureau sold his property,
    Romig filed a motion requesting that the tax sale be set aside for various reasons, including
    improper notice. Romig v. Mifflin County Tax Claim Bureau (Pa. Cmwlth., No. 1138 C.D. 2021,
    filed August 10, 2023), slip op. at 2. The trial court granted Romig’s motion. Thereafter, the Tax
    Bureau filed a petition for confirmation of a judicial sale of multiple properties, which included
    Romig’s property. The trial court issued a rule to show cause, and following a rule to show cause
    hearing, the trial court again “set aside” Romig’s property from judicial sale. Id. Since the trial
    court sustained Romig’s objections or exceptions, we cannot say that he has been damaged by not
    receiving notice that a letter from the Tax Bureau had been rejected by the Department’s mail
    room.
    11
    of mail received and returned to sender, without any notice given to the intended
    party that any mail came for him on or about Sept. 3, 2019.”).
    Considering that the Department has modified its mail policy, it appears
    the outcome Romig sought with his petition has been attained. “[A]n actual case or
    controversy must be extant at all stages of review[.]” Lyft, Inc. v. Pennsylvania
    Public Utility Commission, 
    145 A.3d 1235
    , 1248 (Pa. Cmwlth. 2016) (quoting Pap’s
    A.M. v. City of Erie, 
    812 A.2d 591
    , 600 (Pa. 2002)). “A matter is moot when a court
    cannot enter an order that has any legal effect.” 
    Id.
     (quoting Mistich v. Pennsylvania
    Board of Probation and Parole, 
    863 A.2d 116
    , 121 (Pa. Cmwlth. 2004)).
    “[M]ootness, however it may have come about, simply deprives us of our power to
    act; there is nothing for us to remedy, even if we were disposed to do so.” 
    Id.
    (quoting Mistich, 
    863 A.2d at 121
    ). Here, Romig received the specific relief he
    sought. There is no further relief that can be granted. Accordingly, Romig’s petition
    for review is moot.
    For the above-stated reasons, we dismiss Romig’s motion for judgment
    on the pleadings and the Department’s cross-application for summary relief.
    _____________________________________________
    MARY HANNAH LEAVITT, President Judge Emerita
    12
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Michael C. Romig,                   :
    Petitioner :
    :
    v.                     :         No. 684 M.D. 2019
    :
    John Wetzel, Kathy Brittian,        :
    Keri Moore and Department of        :
    Corrections,                        :
    Respondents:
    ORDER
    AND NOW this 29th day of January, 2024, because there is no further
    relief to be granted regarding the issue of notification to an inmate of mail rejected
    by a prison, and for the reasons set forth in the accompanying opinion, Michael C.
    Romig’s petition for review is DISMISSED as moot.
    The motion for judgment on the pleadings filed by Michael C. Romig
    and the Department of Corrections’ cross-application for summary relief are
    DISMISSED.
    _____________________________________________
    MARY HANNAH LEAVITT, President Judge Emerita