Opinion
No. 664 M.D. 2012
02-21-2014
William Santiago, Petitioner v. John E. Wetzel, John Kerestes, Captain Steven G. Datchko, Ms. Hudson, Ms. Luquis, Scott Miller, Dorina Varner, Tracy Williams, Respondents
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Before this Court are the preliminary objections of John E. Wetzel, John Kerestes, Captain Steven G. Datchko, Ms. Hudson, Ms. Luquis, Scott Miller, Dorina Varner and Tracy Williams, employees of the Pennsylvania Department of Corrections (Department), to a pro se petition for review in the nature of a request for a writ of mandamus filed by William Santiago (Santiago) seeking the return of $1,275.00 that he alleges was improperly seized by the Department from his inmate account in violation of his due process rights. We sustain the preliminary objections and dismiss the petition for review.
Santiago is an inmate currently housed at SCI-Greene. He was formerly housed at SCI-Mahanoy. In August 2011, while Santiago was at SCI-Mahanoy, the Security Office received information that he was receiving numerous money deposits in his J-Pay inmate account from the families of other SCI-Mahanoy inmates, which is against the Department's policy. The Security Office also received anonymous letters that Santiago was receiving drugs smuggled into SCI-Mahanoy by one of his visitors.
Santiago concedes that it is against Department policy for him to transfer or to receive negotiable instruments, money or items of monetary value from the immediate family of inmates or ex-offenders without the prior approval of the Facility Manager. Section 91.1 of the Department's regulations, 37 Pa. Code §91.1, defines "contraband," in pertinent part, as "[m]aterial listed as contraband in ... the Department of Corrections Inmate Handbook, or any Department document that is disseminated to inmates, such as material that an inmate is prohibited from possessing...." See also DC-ADM 815 §3.C.1. ("Contraband is defined as any item possessed by an inmate or found within the facility that is ... expressly prohibited by those legally charged with the administration and operation of the facility.... Contraband falls into the following categories: ... an article specifically prohibited by ... Department policy, or regulation...."
Based on this information, the Security Office began to review Santiago's visit history and monitor his visits and activities in the institution. The Security Office noticed that on May 20, 2011, Lizette Grundy (Grundy) started to regularly visit Santiago. On November 11, 2011, Grundy visited Santiago and he was observed via closed-circuit television pulling his hand out of a potato chip bag and placing something into his mouth other than a potato chip. On November 19, 2011, Grundy was interviewed by a Pennsylvania State Trooper and the Security Captain and admitted that Santiago had asked her on her first visit to bring drugs into SCI-Mahanoy. Grundy stated that at later visits on August 26, 2011, October 14, 2011, and November 11, 2011, she brought marijuana into SCI-Mahanoy for Santiago. Grundy stated that she obtained the drugs for the first two deliveries from Santiago's mother and sister, and that she obtained the five balloons of marijuana for the third delivery from the girlfriend of a former inmate later identified as Rashad Ibrahiem.
The Security Office also monitored the activities of inmates whose family members had placed money in Santiago's J-Pay account. On September 14, 2011, Inmate Taalibdin, FG-3912, was observed via closed-circuit television smoking what appeared to be marijuana in the yard. A Security Office investigation ensued and Inmate Taalibdin received disciplinary custody time as a sanction for his drug use. A review of Santiago's J-Pay account showed that Inmate Taalibdin's family had placed money into the account on three occasions totaling $550.00.
The Security Office also found that on November 1, 2011, Marianne Kinner, mother of Inmate Hibbs, JU-8872, placed $100.00 in Santiago's J-Pay account. The Security Office administered an investigative urine test on Inmate Hibbs which showed a positive result for marijuana.
On November 19, 2011, Santiago was placed in administrative custody in a Restricted Housing Unit (RHU) pending an investigation into the drug sales. On November 21, 2011, Santiago was interviewed and denied any involvement, claiming that Grundy was lying. That same day, $1,165.00 was removed from Santiago's J-Pay account and placed into an escrow account leaving a balance of $544.21. On December 21, 2011, $50.00 was deposited into Santiago's J-Pay account by Morney Lowrey, but was moved into the escrow account, leaving a balance of $522.76. On January 12, 2012, $60.00 was deposited into Santiago's J-Pay account by Lisa Davis, but was moved into the escrow account, leaving a balance of $483.24.
On January 30, 2012, a Misconduct Report was issued alleging three charges: Class I Charge #26, a violation of Section 903 of the Crimes Code, 18 Pa. C.S. §903, Criminal Conspiracy; Class I Charge #36, possession of contraband; and Class I Charge #42, lying to an employee. On February 6, 2012, a hearing was conducted before a Hearing Examiner. Santiago pleaded not guilty and reiterated his written denial of the charges. After reviewing all of the evidence, including recordings of the activities captured on closed-circuit television; review of a printout of Santiago's J-Pay account history; and the Misconduct Report containing the audit results and Grundy's admissions, the Hearing Examiner adjudged Santiago guilty of Charge #26 and Charge #36. The Hearing Examiner adjudged Santiago not guilty of Charge #42.
Two prior Misconduct Reports had been issued but dismissed without prejudice to permit recharge without a determination of guilt or innocence.
In the Misconduct Report disposing of the charges, the Hearing Examiner specifically found as fact, based on the credible evidence, that the Department had completed an audit of Santiago's J-Pay account, and it was discovered that he had received a total of approximately $2,935.00 from other inmates' families, of which he had received $550.00 from Inmate Taalibdin's family and $100.00 from Inmate Hibbs' mother. (Petition Exhibit A at 8-10).
Based on these findings, the Hearing Examiner imposed a sanction of a total of 180 days detention in the RHU with no contact and to "'Revoke All Contraband' (if found)." (Petition Exhibit A at 14). Santiago did not appeal the Hearing Examiner's decision. See DC-ADM 801 §5.
See DC-ADM 801, §4.A.7.
Rather, that same day, Santiago submitted a request to Inmate Accounts asking when the money held in escrow would be released back into his account. On February 7, 2012, he was instructed by Ms. Hudson to contact the Security Office. On February 8, 2012, Santiago submitted a request to the Security Office asking when the money in escrow would be released. The following day, Captain Datchko replied, "Your account will be opened as soon as all the money you received from other inmates/families is removed and placed in the [Internal General Welfare Fund (IGWF)]...." (Petition Exhibit C at 2).
On February 17, 2012, Santiago filed an Official Inmate Grievance on Form DC-804 alleging that the Security Office's removal of the money from his account violated his due process rights because the sanction imposed by the Hearing Examiner said nothing about freezing his money or assessing his account. In an Initial Review Response dated March 1, 2012, the Grievance Coordinator, Scott Miller, denied the grievance on the basis that it related to his misconduct which indicated that the contraband be removed and that the $50.00 and $60.00 that had been removed were placed back into his J-Pay account. (See Petition Exhibit D at 3). On March 20, 2012, the Facility Manager, John Kerestes, denied Santiago's initial appeal of the grievance adopting the Grievance Coordinator's rationale.
On April 20, 2012, Santiago appealed the Facility Manager's decision to the Secretary's Office of Inmate Grievances & Appeals, alleging that the Grievance Coordinator's determination that $50.00 and $60.00 were returned to his J-Pay account is arbitrary or unsubstantiated, and that the initial removal of the money from his account was improper because there was no illegality and it was not sent from other inmates' families. On May 21, 2012, the Chief Grievance Officer dismissed the grievance on the basis that it related to an appeal of the misconduct under DC-ADM 801 and was not a grievance under DC-ADM 804. (See Petition Exhibit D at 7).
On November 9, 2012, Santiago filed the instant petition seeking mandamus relief to compel the Department to return the $1,275.00 seized from his account. Santiago first claims that the Department violated his due process rights because it seized the money in his J-Pay account without prior notice or the imposition of a sanction, and that there is insufficient evidence to support the seizure as a sanction for his misconduct convictions. Santiago also claims that the $1,275.00 could not be seized because he was not charged with violating the Department's policy regarding the receipt of money from the immediate family of inmates and he was not provided with an assessment hearing. The Department filed preliminary objections alleging that Santiago was not entitled to a pre-deprivation hearing because the res at issue is contraband; that he did receive due process through the post-deprivation misconduct hearing; and that his due process claim is actually an attempt to circumvent the prohibition against appealing his misconduct convictions.
Relief in mandamus will be granted to compel the performance of a ministerial act where the plaintiff establishes a clear legal right to relief and a corresponding duty to act by the defendant. Williams v. Pennsylvania Department of Corrections, 47 A.3d 162, 165 n.2 (Pa. Cmwlth. 2012).
"In ruling upon preliminary objections in the nature of a demurrer, the Court must accept as true all well-pled facts and all reasonable inferences deducible therefrom, and it must determine whether the facts pled are legally sufficient to permit the action to continue." Gordon v. Pennsylvania Department of Corrections, 16 A.3d 1173, 1176 n.2 (Pa. Cmwlth. 2010). "In that a demurrer results in the dismissal of a suit, it should be sustained only in cases that are clear and free from doubt and only where it appears with certainty that the law permits no recovery under the allegations pleaded." Id. All doubts must be resolved against sustaining the demurrer. Bundy v. Beard, 924 A.2d 723, 725 n.2 (Pa. Cmwlth.), aff'd, 596 Pa. 103, 941 A.2d 646 (2007), cert. denied, 553 U.S. 1098 (2008).
It also alleges that the petition fails to conform to Pa. R.A.P. 1513(c) because it is not divided into consecutively-numbered paragraphs with each containing a single allegation.
Insofar as Santiago claims that he is entitled to a hearing on whether the Department properly refused to return the funds from his account, as noted above, the Hearing Examiner specifically found that the Department had completed an audit of Santiago's J-Pay account, and it was discovered that he had received approximately $2,935.00 from other inmates' families and Santiago did not appeal her decision. Based on that finding, Santiago does not possess a protectable property interest in the unapproved funds that were deposited by the immediate family of inmates into his J-Pay account because such funds are contraband under Department policy and the Department's seizure of such contraband is not improper. See, e.g., Steffey v. Orman, 461 F.3d 1218, 1222-23 (10th Cir. 2006) (holding that an inmate did not have a legitimate claim of entitlement to a $50.00 money order sent in violation of a prison regulation prohibiting an inmate from receiving money from the family members of other inmates and the prison's confiscation of the money order did not violate the prisoner's due process rights); Lowery v. Cuyler, 521 F. Supp. 430, 432 (E.D. Pa. 1981) (holding that an inmate cannot have a property interest in $1,045.00 in cash confiscated from his cell under a prison regulation and deposited in the IGWF and the confiscation did not violate the prisoner's due process rights). Because a collateral attack on an original misconduct is not permitted, see DC-ADM 804 §1.A.7., the Chief Grievance Officer properly dismissed the grievance appeal.
Only those prison regulations that impose atypical sanctions and significant hardships on an inmate in relation to the ordinary incidents of prison life implicate a protected property interest requiring procedural due process protection. Portalatin v. Department of Corrections, 979 A.2d 944, 949 (Pa. Cmwlth. 2009), citing Sandin v. Conner, 515 U.S. 472, 484 (1995).
Santiago also maintains that his due process rights were violated because he was entitled to a pre-deprivation hearing before those funds could be removed from his inmate account. While it is clear that a prisoner has a property interest in his inmate account, Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 421 (3rd Cir. 2000), and inmates are entitled to due process with respect to any deprivation of this money, Reynolds v. Wagner, 128 F.3d 166, 179 (3rd Cir. 1997), in Parratt v. Taylor, 451 U.S. 527, 539 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31 (1986), the Supreme Court stated that it is permissible to dispense with the ordinarily required pre-deprivation hearings due to:
[E]ither the necessity of quick action ... or the impracticability of providing any meaningful pre-deprivation process can, when coupled with the availability of some meaningful means by which to assess the propriety of the state's action at some time after the initial taking, satisfy the requirements of procedural due process.See also Gilbert v. Homar, 520 U.S. 924, 930-31 (1997); Hudson v. Palmer, 468 U.S. 517, 533 (1984). In this case, a pre-deprivation hearing was not required where the funds deposited violated the Department's policy against having other inmates' families deposit funds into Santiago's account; valid penological interests required that those funds be removed immediately to stop the ongoing drug sales, and there was a post-deprivation hearing available to challenge whether the funds in the account were deposited against Department policy.
It should be noted that Santiago does not contest the validity of the applicable Department policies. See, e.g., Overton v. Bazzetta, 539 U.S. 126, 132 (2003) ("We must accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them. The burden, moreover, is not on the State to prove the validity of prison regulations but on the prisoner to disprove it....") (citations omitted).
In addition, Santiago's assertion that he should have been charged with a misconduct with a sanction prior to the seizure is likewise without merit. It was within the Department's discretion regarding whether to charge him with a misconduct due to the contraband in his JPay account. See DCADM §3.C.2. ("Possession of contraband by an inmate may result in a misconduct in accordance with the provisions of DCADM 801, "Inmate Discipline.") (emphasis added); DCADM §3.C.4. ("Money allegedly found by an inmate and voluntarily turned into facility officials is not considered contraband and no misconduct will be written. Found monies shall be confiscated and placed in the [IGWF].").
Finally, DCADM 815 §3.C.8. provides:
NOTE: All items deemed to be contraband will be destroyed or otherwise disposed of. The facility security office, after consultation with the Major, will determine when contraband will be destroyed. Destruction of contraband will ONLY occur after the inmate's misconduct hearing is held and the misconduct appeal process is exhausted. When an inmate files a grievance regarding confiscated contraband, destruction of the property will only occur after the appeal process has been exhausted. (Emphasis in original).
Santiago's reliance on Burns v. Department of Corrections, 544 F.3d 279 (3rd Cir. 2008) and Higgins v. Beyer, 293 F.3d 683 (3rd Cir. 2002) is misplaced because neither of those cases involved the seizure of contraband from an inmate's account in which the inmate could have no protectable property interest. --------
Accordingly, the preliminary objections are sustained and the petition for review is dismissed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 21st day of February, 2014, the preliminary objections of John E. Wetzel, John Kerestes, Captain Steven G. Datchko, Ms. Hudson, Ms. Luquis, Scott Miller, Dorina Varner and Tracy Williams are sustained and the petition for review is dismissed.
/s/_________
DAN PELLEGRINI, President Judge
To the extent that the foregoing provides the post-deprivation process that was due, Santiago could challenge the source and status of the funds at the hearing and he could have contested the Hearing Examiner's determinations in the misconduct appeal process.