Opinion
No. 556 M.D. 2013
07-01-2014
Ronald Stockton, Petitioner v. Chief Hearing Examiner - Robin M. Lewis, Jon D. Fisher, L. Oliver, J. Whitesel, D. Myers, Hearing Examiner - A. Himes, Captain - Goss, Lieutenant - Allison, Captain - Sunderland, Dept'. of Corrections, C.O. James, Respondents
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Ronald Stockton, an inmate at the State Correctional Institution at Smithfield (SCI-Smithfield), has filed a petition for review, pro se, in the nature of a mandamus action. His petition asserts that employees of the Department of Corrections have violated his constitutional rights in pursuing misconduct charges against him and placing him in restricted housing during the misconduct proceeding. Stockton seeks a writ of mandamus to compel the Department to release him from restricted housing and to expunge his disciplinary record. The Department has filed preliminary objections in the nature of a demurrer, arguing that Stockton has not established a clear right to relief. We agree and, accordingly, sustain the Department's preliminary objections.
The named respondents are Chief Hearing Examiner Lewis, Superintendent Fisher, Deputy Superintendent Oliver, Deputy Superintendent Whitesel, Major Myers, Hearing Examiner Himes, Captain Goss, Lieutenant Allison, Captain Sunderland and Officer James (collectively, Department).
The facts in the petition for review provide the background. On August 3, 2013, SCI-Smithfield placed Stockton into its Restricted Housing Unit while it investigated claims that he had sexually harassed a female correctional officer and used inappropriate language. On August 19, 2013, Lieutenant Allison informed Stockton that his administrative detention had been extended by 15 days to permit the completion of the investigation. On August 30, 2013, the Department charged Stockton with misconduct and conducted a hearing pursuant to SCI-Smithfield's disciplinary procedures and the Department's Administrative Directive 801 (DC-ADM 801). On September 4, 2013, the hearing examiner found that the Department proved the misconduct and ordered Stockton to spend an additional 45 days in the Restricted Housing Unit; the hearing examiner also rescinded his job. Stockton appealed to the prison's program review committee, the Superintendent of SCI-Smithfield, and finally to the Office of Chief Hearing Examiner. The Chief Hearing Examiner denied Stockton's appeal, noting that the hearing examiner had correctly determined by a preponderance of the evidence that Stockton had committed the misconduct of which he had been charged.
The memo from Lieutenant Allison is dated August 16, 2013.
The program review committee adjusted Stockton's sanction to retroactively include the time spent in administrative custody starting August 3, 2013. However, Stockton apparently indicated to the program review committee during his review on September 19, 2013, that he wished to stay in the Restricted Housing Unit to work on his legal cases. In his petition, Stockton alleges that he made no such request.
Stockton then filed the instant petition for review with this Court, alleging violations of his constitutional rights. First, Stockton contends that the Department violated his right to due process because it did not follow SCI-Smithfield's procedures and Department regulations. Next, Stockton argues his confinement in the Restricted Housing Unit violated the Eighth Amendment of the United States Constitution. Finally, Stockton argues that his confinement in the Restricted Housing Unit limited his ability to pursue litigation; he was not afforded appropriate legal assistance; and mail from his attorney was opened outside of his presence in violation of the attorney-client privilege and his First Amendment rights.
In his brief, Stockton also argues that Hearing Examiner Himes is not a notary public and, therefore, her actions are invalid under 53 Pa. C.S. §1141 and 57 Pa. C.S. §154. Stockton did not raise this issue in his petition for review; therefore, it is waived. In any event, the statutory provisions cited by Stockton do not apply because a hearing examiner, as is the case for a judge, is not required to be a notary public in order to administer oaths or admit evidence. See 57 Pa. C.S. §310 (indicating that a notarial act may be performed by an "individual authorized by law to perform a specific notarial act").
Stockton seeks an order from this Court directing the Department to release him from the Restricted Housing Unit and to expunge the discipline from his record. We treat this request as one for mandamus relief. In addition, Stockton seeks compensatory damages and related litigation costs. In its preliminary objections in the nature of a demurrer, the Department argues that the law will not permit recovery on any of Stockton's claims. We agree.
A writ of mandamus is an extraordinary remedy that compels the performance of a ministerial duty by a government official when (1) the petitioner demonstrates a clear legal right to relief, (2) the official owes the petitioner a duty, and (3) there are no other adequate remedies at law. Wilson v. Pennsylvania Board of Probation and Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008). "Mandamus is not available to establish legal rights, but is appropriate only to enforce rights that have been established." Id.
"Preliminary objections will be sustained only where it is clear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief." Wilson, 942 A.2d at 272. We must accept all well-pleaded material facts and inferences therefrom. Dodgson v. Pennsylvania Department of Corrections, 922 A.2d 1023, 1027-28 (Pa. Cmwlth. 2007). "We need not accept as true conclusions of law, unwarranted inferences, argumentative allegations, or expressions of opinion." Id. at 1028. We may consider documents or exhibits attached to a complaint but do not need to accept as true averments in the complaint that conflict with exhibits attached to it. Lawrence v. Pennsylvania Department of Corrections, 941 A.2d 70, 71 (Pa. Cmwlth. 2007).
In his first issue, Stockton argues that the prison's misconduct investigation and hearing violated his right to due process. Specifically, the Department violated its own internal procedures because it did not justify his extended placement in restricted housing; notify him of the extension on the proper form; or notify him within the required period of time. Stockton also argues that he did not receive a fair hearing and that the Department did not prove the misconduct by a preponderance of evidence; these also violate due process.
The Department's charges of misconduct against an inmate are generally beyond this Court's appellate or original jurisdiction. Brown v. Department of Corrections, 913 A.2d 301, 305 (Pa. Cmwlth. 2006); Robson v. Biester, 420 A.2d 9, 12 (Pa. Cmwlth. 1980) (holding that decisions by an intra-prison disciplinary tribunal are not a final adjudication by an administrative agency). Our Supreme Court has explained that "internal prison operations are more properly left to the legislative and executive branches, and that prison officials must be allowed to exercise their judgment in the execution of policies necessary to preserve order and maintain security free from judicial interference." Bronson v. Central Office Review Committee, 721 A.2d 357, 358 (Pa. 1998). Unless "an inmate can identify a personal or property interest . . . not limited by Department regulations and which is affected by a final decision of the Department," the decision is not an adjudication subject to the court's review. Lawson v. Department of Corrections, 539 A.2d 69, 71 (Pa. Cmwlth. 1988).
During misconduct proceedings, an inmate has the right to: (1) written notice of the violation at least 24 hours in advance of the hearing, (2) a written statement by the fact finder regarding the evidence relied upon and reasons for the disciplinary action, and (3) the right to call witnesses on his own behalf and to present evidence when institutional safety or correctional goals will not be placed in danger. Robson, 420 A.2d at 12 (citing Wolff v. McDonnell, 418 U.S. 539 (1974)). However, "[t]he Constitution does not require strict adherence to administrative regulations and guidelines." Luckett v. Blaine, 850 A.2d 811, 820 (Pa. Cmwlth. 2004) (quoting Flanagan v. Shively, 783 F.Supp. 922, 932 (M.D. Pa. 1992)). "Mandatory language in a state regulation or directive is no longer the sole criterion for finding the creation of a liberty interest." Luckett, 850 A.2d at 820. Instead, courts must examine whether the regulations impose atypical sanctions and significant hardships when compared to the "normal incidents of prison life." Id.
The U.S. Supreme Court in Wolff indicated that prison officials have discretion in denying an inmate's request to call witnesses. Wolff, 418 U.S. at 566. See also Department of Corrections Inmate Discipline Policy, DC-ADM 801 §3(D)(1) (granting the hearing examiner discretion in approving the presence of witnesses).
In the present case, Stockton's claims regarding the Department's misconduct proceeding and its placement of him in the Restricted Housing Unit during those proceedings are governed by Policy DC-ADM 801 and related Department regulations. The Department's regulation states that "[a]n inmate does not have a right to be housed in a particular facility or in a particular area within a facility." 37 Pa. Code §93.11(a). Policy DC-ADM 801 states that "[t]his policy does not create rights in any person nor should it be interpreted or applied in such a manner as to abridge the rights of any individual." DC-ADM 801. In short, Stockton does not have the "right to be housed" in a unit of his choosing. Additionally, the deviations from the Department's regulations alleged by Stockton, such as delayed notification of the extension of his administrative detention, involve the day-to-day management issues of running a prison, which is beyond judicial review. Bronson, 721 A.2d at 358. His placement in the Restrictive Housing Unit during the misconduct proceeding did not impose a significant hardship, considering that the program review committee altered the effective date of the sanction to be the date Stockton was first placed in the Restricted Housing Unit. We sustain the Department's demurrer to Stockton's petition insofar as he requests removal of the misconduct from his disciplinary record.
Stockton calls the provisions at 37 Pa. Code §93.10 and 37 Pa. Code §93.11 statutes, but they are regulations that have been promulgated by the Department, not enactments of the General Assembly.
Next, Stockton argues that the conditions in the Restricted Housing Unit violate the Eighth Amendment's prohibition against cruel and unusual punishment. Stockton contends, for example, that he has been denied basic hygiene supplies because he must pay for such items but has been removed from his prison job. Stockton also contends he is being deprived of sunlight and forced to inhale bird fecal matter. The Department counters that these allegations do not rise to the level of cruel and unusual punishment.
Stockton also alleges in his brief that he has been forced to endure 24-hour illumination which has caused sleep deprivation and psychological issues. Stockton cites Harris v. Horn, 747 A.2d 1251 (Pa. Cmwlth. 2000), in support of his argument. In Harris, this Court overruled the Department's preliminary objections because the inmate had alleged constant illumination of his cell caused him to suffer eye and mental problems. However, this Court in Riley v. Beard (Pa. Cmwlth., No. 102 M.D. 2007, filed May 1, 2009), granted the Department's motion for summary judgment in a case involving the same prison, SCI-Smithfield, and similar allegations by inmates in the Restricted Housing Unit that the constant lighting caused blurred vision, sleep disorders, headaches and mental problems. Id., slip. op. at 1-2. This Court held that the constant illumination in the Restricted Housing Unit did not violate the Eighth Amendment because the lighting was low-wattage and served a legitimate penological interest to improve security. Id., slip. op. at 8-10. While Riley is not binding precedent, it is highly persuasive. Furthermore, we note that Stockton does not allege that prison officials were deliberately indifferent to his condition.
The United States Supreme Court has stated that the Constitution "does not mandate comfortable prisons" and that "[t]o the extent that . . . conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Nevertheless, prison officials must provide humane conditions of confinement, such as adequate food, clothing, shelter, and medical care. Neely v. Department of Corrections, 838 A.2d 16, 20 (Pa. Cmwlth. 2003). To establish a violation of the Eighth Amendment, an inmate must show, first, that the conditions are "sufficiently serious" to deprive the inmate of "the minimal civilized measure of life's necessities." Farmer v. Brennan, 511 U.S. 825, 834 (1994); Rhodes, 452 U.S. at 347. Second, the inmate must establish that the prison officials acted with deliberate indifference to the inmate's conditions of confinement. Farmer, 511 U.S. at 834.
Stockton's allegations do not rise to the level of cruel and unusual punishment. First, Stockton does not allege that the Department has failed to provide him with food, clothing, shelter, or medical care. The Department may require inmates to pay for personal hygiene supplies such as toothbrushes and toothpaste. Neely, 838 A.2d at 20. Likewise, deprivation of sunlight is not a violation of the Eighth Amendment. Richard v. Reed, 49 F.Supp.2d 485, 487 (E.D. Va. 1999) (holding that deprivation of sunlight for 100 days was not a sufficiently serious deprivation of a basic human need). The allegations about the conditions in the Restrictive Housing Unit do not show Stockton has been deprived of the "minimal civilized measures of life's necessities." Rivera v. Department of Corrections, 837 A.2d 525, 534 (Pa. Super. 2003) (holding that confinement in Restrictive Housing Unit alone does not violate the Eighth Amendment). Second, Stockton does not allege in his petition that prison officials were deliberately indifferent to the conditions.
Finally, Stockton argues that he was denied access to the courts. In particular, Stockton alleges that he could not access law materials on the computer because he is not computer literate. Stockton alleges that he had to seek the help of another inmate to prepare a petition for review and received a misconduct for that interaction. Furthermore, Stockton alleges that his mail was opened outside of his presence in violation of his attorney-client privilege and First Amendment right to free speech. The Department counters that Stockton does not allege that he was prohibited from pursuing his claims and therefore has not suffered an actual injury.
An inmate has the "fundamental constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 828 (1977). The United States Supreme Court has explained that prison authorities are required "to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Id. To state a cognizable claim for a violation of an inmate's right to access the courts, an inmate must allege and offer proof that an "actual injury" was suffered as a result of the denial. Lewis v. Casey, 518 U.S. 343, 351 (1996). For example, an inmate must show
that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison's legal assistance facilities, he could not have known. Or that he had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint.Id.
Stockton's claim regarding access to the courts lacks merit. Stockton does not allege that his litigation was undermined by an inadequate law library or inability to access materials. Stockton alleges that his mail was opened outside of his presence. 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. Mail sent to an inmate that bears a control number may only be opened in the inmate's presence and then only to search for contraband. Brown v. Department of Corrections, 932 A.2d 316, 318 (Pa. Cmwlth. 2007). The Department treats any piece of mail with no control number as regular mail. Id. Stockton does not allege that his attorney was unable to obtain a control number or that the mail that was allegedly opened outside his presence had a control number. In sum, Stockton's claims regarding access to the court and violation of his attorney-client privilege and right to free speech lack merit.
37 Pa. Code §93.2 states in relevant part:
An attorney may obtain a control number from the Department's Office of Chief Counsel if the attorney wishes to have correspondence addressed to an inmate client opened in the presence of the inmate.
(A) An attorney shall submit a written request for a control number to the Office of Chief Counsel. The request must include the attorney's name, address, telephone and facsimile numbers, State attorney identification number and a verification subject to the penalties of 18 Pa.C.S. §4904 (relating to unsworn falsification to authorities) that all mail sent to inmates using the control number will contain only essential, confidential, attorney-client communication and will contain no contraband.
(B) The attorney shall place the control number on each envelope that the attorney wishes to have opened in an inmate's presence. The number is confidential. It shall only be placed on the outside of the envelope so that it can be obliterated before it is delivered to an inmate client.
(C) If a control number does not appear on the envelope, the mail will be treated as regular mail and opened in the mailroom unless the procedures in subparagraph (i) are followed.
(D) The Department may change the control number for any reason upon notice to the attorney who requested it.
For all of the foregoing reasons, we sustain the Department's preliminary objections and dismiss Stockton's petition.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 1st day of July, 2014, the preliminary objections of the Respondents, Chief Hearing Examiner Lewis, Superintendent Fisher, Deputy Superintendent Oliver, Deputy Superintendent Whitesel, Major Myers, Hearing Examiner Himes, Captain Goss, Lieutenant Allison, Captain Sunderland and Officer James, are SUSTAINED and the petition for review filed by Petitioner, Ronald Stockton, is DISMISSED.
/s/_________
MARY HANNAH LEAVITT, Judge