Opinion
No. 405 M.D. 2014
07-13-2015
Dwayne Hill, Petitioner v. Pennsylvania Depart. of Corrections, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Before this Court in its original jurisdiction are the preliminary objections of the Department of Corrections (Department) to an amended petition for review (petition) seeking declaratory and injunctive relief filed pro se by Dwayne Hill (Petitioner), an inmate serving a sentence at a state correctional institution. Petitioner challenges 37 Pa. Code §93.12, a regulation that permits the Department to deduct medical co-pays from an inmate's account for services provided with regard to self-inflicted injury or illness, as unconstitutionally vague, and seeks an order directing the Department to return all funds deducted from his inmate account for medical services he refused in connection with a hunger strike and enjoining the Department from making such deductions in the future. For the reasons that follow, we sustain the Department's preliminary objections and dismiss the petition with prejudice.
At the same time, Petitioner also filed an application to proceed in forma pauperis, which this Court granted.
I.
The petition alleges that 37 Pa. Code §93.12, promulgated pursuant to the Correctional Institution Medical Services Act (Act), is unconstitutionally vague because it fails to provide to the Department explicit and ascertainable standards to prevent enforcement in an arbitrary manner. Petitioner also asserts that the Department's deduction of funds from his inmate account for fees associated with medical treatment offered to Petitioner but refused with regard to his hunger strike violates his due process rights, is unauthorized by 37 Pa. Code §93.12, and violates the Department's own inmate-debt collection policy as set forth in DC-ADM-005. Further, Petitioner claims that to the extent the Department was authorized to charge him, he incurred multiple charges with regard to the same treatment and, therefore, was overbilled. As such, Petitioner seeks a declaration that 37 Pa. Code §93.12 is unconstitutionally vague and a Court order compelling the Department to credit Petitioner's account in the amount of unauthorized co-pays deducted, enjoining it from making such deductions in the future, and paying Petitioner's litigation expenses.
Regarding prison medical services programs, the regulation provides in pertinent part:
(a) Every institution will establish procedures to permit inmates to have access to health care professionals, prescribed treatment for serious medical needs, appropriate nutrition, exercise and personal hygiene items.37 Pa. Code §93.12.
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(c) The Department will charge a fee to an inmate for any of the following:
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(2) Medical service provided to the inmate as the result of a self-inflicted injury or illness, including emergency medical service provided to the inmate as the result of a self-inflicted injury or illness.
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(d) The Department will not charge a fee to an inmate for any of the following:
(1) Physical, dental or mental health screening provided to an inmate upon intake.
(2) Immunization, tuberculosis test, Hepatitis B vaccination or other treatment initiated by the Department for public health reasons.
(3) Institution transfer screening.
(4) Physical and dental examination scheduled by the Department.
(5) Medical service provided to an inmate during a follow-up appointment scheduled by a health care professional employed by the Department or its contractors.
(6) Mental health treatment.
(7) Medical treatment for a chronic or intermittent disease or illness.
(8) Infirmary care in a Department facility.
(9) Hospitalization outside of a Department facility.
(10) Long-term care to an inmate not in need of hospitalization, but whose needs are such that they can only be met on a long-term basis or through personal or skilled care because of age, illness, disease, injury, convalescence or physical or mental infirmity.
(11) Medical referral ordered by a health care professional employed by the Department or its contractors.
(12) Medical service provided to an inmate during a medical emergency unless the medical emergency resulted from a self-inflicted injury or illness as determined by the health care professional providing the medical service.
(13) Laboratory test, electrocardiogram, dressing change or other treatment ordered by a health care professional employed by the Department or its contractors.
(14) Prenatal care.
(15) Medical service provided as a result of an injury or illness arising from an inmate's institutional work assignment.
(16) Medication prescription subsequent to the initial medication prescription provided to an inmate for the same illness or condition.
(17) Social service program including, but not limited to, substance abuse groups and counseling.
(18) Psychotropic medication.
(19) Medication prescribed for an inmate for public health reasons.
(20) Physical, dental and mental health screening performed at the request of the Department.
(21) Medical service provided to an inmate to determine whether his physical condition is suitable for an institutional work assignment.
(22) Eyeglass prescription.
(23) Dentures.
(24) Prosthetic devices excluding customized items.
(e) The fee for any medical service in subsection (c) is $3. This amount will be increased to $4 on July 1, 2005, and $5 on July 1, 2007, except that an inmate is required to pay a fee equivalent to the total cost of medical services provided to another inmate as a result of the inmate's assaultive conduct.
(1) The fee will be assessed each time a medical service in subsection (c) is provided to an inmate, except when multiple services are performed at one visit at the discretion of the health care professional.
(2) Each inmate shall receive 60 days written notice of the implementation of the Prison Medical Services Program.
(3) Each inmate shall receive written notice of any changes in medical service fees and payment procedures at least 60 days after the effective date of a regulation that modifies the fee for medical services and payment procedures.
(f) Payment for any medical service in subsection (c) shall be accomplished according to the following procedures:
(1) At the time any medical service is to be provided to an inmate, the inmate will be informed by the Department or a health care professional contracted by the Department whether a fee will be charged for the medical service and will be provided with an authorization form. The authorization form will describe the medical service to be provided and authorize the institution to deduct the fee from the inmate's account.
(2) An inmate who wishes to receive a medical service after being advised that a fee will be charged for the medical service, shall sign the authorization form acknowledging that his inmate account will be debited for the fee. An inmate who refuses to sign the authorization, who does not sign a refusal of treatment form and who accepts medical treatment will receive the services and his account will be debited. An inmate will not be denied access to medical services because of an inability to pay the required fee. If an inmate lacks sufficient funds to pay a medical service fee, the inmate's account will be debited and the fee recouped as soon as sufficient funds are deposited in the inmate's account....
Act of August 11, 2009, P.L. 147, 61 Pa. C.S. §§3301-3307. Enactment of the Act repealed its predecessor, the Prison Medical Services Act, Act of May 16, 1996, P.L. 220, 61 P.S. §§1011-1017, repealed by Act of August 11, 2009, P.L. 147, and relocated the subject matter of the former under the latter. Section 3(b) of the Prison Medical Services Act, 61 P.S. §1013(b), required the Department to develop regulations to implement the inmate co-pay program, pursuant to which regulations were promulgated and became codified at 37 Pa. Code §93.12. Those regulations remain in effect under the current Act. See 37 Pa. Code §93.12.
Based on the petition, it is unclear whether Petitioner was, in fact, treated despite his refusal of treatment.
In response, the Department filed preliminary objections, claiming that the petition should be dismissed because: (1) this Court has already upheld the constitutionality of the Prison Medical Services Act, Act of May 16, 1996, P.L. 220, 61 P.S. §§1011-1017, repealed by Act of August 11, 2009, P.L. 147, in Silo v. Ridge, 728 A.2d 394 (Pa. Cmwlth. 1999); and (2) prison officials are entitled to make deductions from Petitioner's inmate account for medical services rendered pursuant to 37 Pa. Code §93.12(c)(2).
The Department also filed a motion to strike Petitioner's in forma pauperis status, arguing that because Petitioner has engaged in abusive litigation and has incurred three or more dismissals or strikes for purposes of the Prison Litigation Reform Act, 42 Pa. C.S. §§6601-6608, the Court should order Petitioner to pay the appropriate filing fee within thirty (30) days or dismiss his petition. For the reasons explained below, we need not address this issue as our decision renders it moot.
II.
In adjudicating preliminary objections, the Court must accept as true all well-pleaded, material, relevant facts and every inference fairly deducible therefrom. Willet v. Pennsylvania Medical Catastrophe Loss Fund, 702 A.2d 850, 853 (Pa. 1997). Preliminary objections should be sustained only when it appears with certainty that the law will not permit recovery, and any doubt should be resolved in favor of overruling the demurrer. Id. (citing Allegheny County v. Commonwealth, 490 A.2d 402, 408 (Pa. 1985)).
A.
With regard to Petitioner's vagueness challenge, our Supreme Court has explained, "As generally stated, the void for vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Commonwealth v. Barud, 681 A.2d 162, 165 (Pa. 1996) (emphasis added); see also Pennsylvania State Association of Jury Commissioners v. Commonwealth, 53 A.3d 109, 121 (Pa. Cmwlth. 2012) (en banc) ("The void-for-vagueness doctrine, in general, represents a principle implicated in challenges to laws affecting conduct. The doctrine generally prohibits the enforcement of laws that are unclear as to meaning or enforcement and thus fail to provide sufficient clarity as to what behavior may warrant application of the subject law."), rev'd on other grounds, 64 A.3d 611 (Pa. 2013).
We reject the Department's contention that this issue was already decided in Silo v. Ridge, 728 A.2d 394 (Pa. Cmwlth. 1999). While we did rule in Silo that "[r]equiring inmates to pay a minimal fee for their medical care" does not violate an inmate's rights under the Eighth or Fourteenth Amendments to the United States Constitution and does not violate the prohibition against ex post facto laws or bills of attainder, we did not rule upon a vagueness challenge. Id. at 399-401.
Simply, the void-for-vagueness doctrine applies only to penal statutes. Melton v. Beard, 981 A.2d 361, 364 (Pa. Cmwlth. 2009). Because 37 Pa. Code §93.12 is not a penal statute, but rather, is a regulation establishing a co-payment program for inmate medical services, the void-for-vagueness doctrine does not apply in this context. See Silo v. Ridge, 728 A.2d 394, 400 (Pa. Cmwlth. 1999) (holding that the Prison Medical Services Act, Act of May 16, 1996, P.L. 220, 61 P.S. §§1011-1017, repealed by Act of August 11, 2009, P.L. 147, which established a co-payment program for medical services rendered to inmates, did not violate the prohibition against ex post facto laws because it was not penal in nature since it did not criminalize conduct or deprive criminal defendants of available defenses, but rather imposed fees upon inmates for certain medical services to reduce government costs in providing the services).
Although the Prison Medical Services Act has been replaced by the Correctional Institution Medical Services Act, the same regulation - 37 Pa. Code §93.12 - is still at issue. Specifically, Section 3(b) of the prior Prison Medical Services Act, 61 P.S. §1013(b), authorized the Department to make the same charges that are presently at issue under 37 Pa. Code §93.12(c)(2). Compare Section 3(b) of the Prison Medical Services Act, 61 P.S. §1013(b) ("[A]n inmate may be required to pay a fee for medical services provided because of injuries the inmate inflicted upon himself or another inmate."), repealed by Act of August 11, 2009, P.L. 147, with 37 Pa. Code §93.12(c)(2) ("The Department will charge a fee to an inmate for any of the following: ...(2) Medical service provided to the inmate as the result of a self-inflicted injury or illness, including emergency medical service provided to the inmate as the result of a self-inflicted injury or illness.").
B.
Insofar as Petitioner claims that the Act and 37 Pa. Code §93.12 deprive him of his property without due process of the law in violation of the Fourteenth Amendment, we disagree. First, "regulations...detailing the co-payment program" do not impose the "atypical and significant hardships [necessary] to implicate a constitutional right" because any right to "be free of co-payments is not of constitutional dimension" and "is limited by [Department] regulations." Portalatin v. Department of Corrections, 979 A.2d 944, 949 (Pa. Cmwlth. 2009). As such, this Court does not enjoy original jurisdiction over the case. Id.; see also Bronson v. Central Office Review Committee, 721 A.2d 357, 358 & n.1, 359 (Pa. 1998) (explaining that the Commonwealth Court did not have original jurisdiction over an inmate's claim that he was deprived of property without due process of the law when his civilian clothing was taken and destroyed because original jurisdiction existed only where "an inmate can identify a personal or property interest...not limited by Department [of Corrections] regulations" (internal quotation marks and citation omitted) (alteration in original)); Weaver v. Pennsylvania Department of Corrections, 829 A.2d 750, 751-52 (Pa. Cmwlth. 2003) (holding that the Court lacked original jurisdiction over an inmate's mandamus action seeking an order compelling the Department to return his confiscated artwork and supplies where Department directives limited inmates' personal property).
Moreover, as we stated in Silo v. Ridge, inmates "may challenge a medical fee assessment through the grievance procedure under 37 Pa. Code §93.9. With an ability to challenge an assessment through the grievance procedure, due process does not require that inmates be able to challenge the assessment at the time the medical services are requested." 728 A.2d 394, 399 (Pa. Cmwlth. 1999). In this way, we explained that because the Department provided an adequate post-deprivation remedy, there was no violation of inmates' due process rights when they were assessed co-payment fees. Id. (citing Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984)). Because 37 Pa. Code §93.9 still enables Petitioner to challenge co-payment charges to his inmate account with regard to medical expenses, Petitioner has failed to state a due process claim under the Fourteenth Amendment.
Section 93.9 states:
(a) The Department will maintain an inmate grievance system which will permit any inmate to seek review of problems which the inmate experiences during the course of confinement. The system will provide for review and resolution of inmate grievances at the most decentralized level possible. It will also provide for review of the initial decision making and for possible appeal to the Central Office of the Department. An inmate will not be disciplined for the good faith use of the grievance systems. However, an inmate who submits a grievance for review which is false, frivolous or malicious may be subject to appropriate disciplinary procedures. A frivolous grievance is one in which the allegations or the relief sought lack any arguable basis in fact as set forth in DC-ADM 804-Inmate Grievance System, which is disseminated to inmates.37 Pa. Code §93.9.
(b) Inmates may also pursue available remedies in State and Federal court.
C.
We further reject Petitioner's claim that the co-pay charges are not authorized by 37 Pa. Code §93.12. While it is unclear whether the subject medical services were rendered despite Petitioner's refusal of them, to the extent that they were, 37 Pa. Code §93.12(c)(2) expressly authorizes the Department to charge a fee for medical services provided as the result of a self-inflicted injury or illness. Additionally, Petitioner has not pointed to any language in 37 Pa. Code §93.12(d) prohibiting collection of this expense. To the extent Petitioner contends that he was billed for services not rendered or that he was double-billed, his proper remedy is to file a grievance. Silo, 728 A.2d at 399.
The Commonwealth may provide medical treatment to someone in its custody who engages in a hunger strike, despite his refusal of treatment. See Department of Public Welfare v. Kallinger, 580 A.2d 887 (Pa. Cmwlth. 1990) (single-judge opinion); see also Hill v. Department of Corrections, 992 A.2d 933, 937 (Pa. Cmwlth. 2010) (adopting and applying the holding in Kallinger with regard to inmates in the penal system). --------
D.
Finally, with respect to Petitioner's contention that the Department's deduction of medical co-pays from his inmate account violates the Department's own procedures regarding the collection of inmate debts as stated in DC-ADM 005, Petitioner has not highlighted any section of the policy prohibiting such a practice, and we have found none. Because Petitioner's legal conclusion is unsupported by factual averments, he has not set forth a cognizable claim in this regard.
Accordingly, we sustain the Department's preliminary objections and dismiss Petitioner's petition with prejudice.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 13th day of July, 2015, the preliminary objections of the Pennsylvania Department of Corrections (Department) in the above-captioned matter are sustained, and Dwayne Hill's amended petition for review is dismissed with prejudice. The Department's motion to strike Dwayne Hill's in forma pauperis status is denied as moot.
/s/_________
DAN PELLEGRINI, President Judge