Opinion
No. 369 M.D. 2014
01-08-2015
Bruce L. Wishnefsky, Petitioner v. Pennsylvania Department of Corrections, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Before this Court in our original jurisdiction is the preliminary objection in the nature of a demurrer of the Department of Corrections (DOC) to a petition for review in the nature of mandamus (petition) filed by Bruce L. Wishnefsky (Wishnefsky), representing himself. Wishnefsky is classified as a personal care inmate in the D-Unit of the State Correctional Institution at Laurel Highlands because he needs more health services than inmates housed in general population (GP). Based on his need for personal care and his mobility restrictions, Wishnefsky asserts he qualifies for protection under the Americans with Disabilities Act of 1990, 42 U.S.C. §§12101-12213 (ADA), as a person with a qualified disability. He contends DOC's housing practice violates the integration mandate for treatment of disabled prisoners. DOC counters that it complied with its legal duties. For the reasons that follow, we sustain DOC's preliminary objection.
I. Facts Averred
Wishnefsky receives services from DOC as a personal care inmate. Based on that classification, he receives greater health services, such as assistance with daily activities, under a treatment plan supervised by licensed professional nurses. Specifically, Wishnefsky is restricted to no work/medically unemployed. Also, he is mobility impaired to the extent that he needs a cane and must reside on the ground level and use a hospital bed. Based on these limitations, Wishnefsky avers he qualifies as a person with a disability within the meaning of the ADA.
Pursuant to regulations under the ADA, public entities, including correctional institutions, are required to house inmates with disabilities "in the most integrated setting appropriate to the needs of the individual." 28 C.F.R. §35.152(b)(2). An integrated setting enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible, to avoid isolation. This is commonly referred to as the "integration mandate." Olmstead v. L.C., 527 U.S. 581, 607 (1999).
Wishnefsky is in D-Unit, which houses both GP and personal care inmates. When GP and personal care inmates share a cubicle, GP inmates are housed in the upper bunks of bunk beds, while personal care inmates are housed on the bottom bunks. Wishnefsky asserts this arrangement constitutes an integrated setting because disabled inmates share the same cubicle with GP inmates. Cubicles contain either bunk beds or hospital beds. Wishnefsky alleges that cubicles containing only hospital beds do not meet the integration mandate because disabled inmates are segregated from GP inmates. Wishnefsky is housed in a cubicle that contains a hospital bed, and is thus segregated.
In his petition, Wishnefsky challenges DOC's housing of personal care inmates in segregated cubicles as a violation of the ADA. He alleges that cubicles containing only hospital beds do not meet the integration mandate because personal care inmates are separated from GP inmates. Such segregation constitutes discrimination. He contends he has a clear right to be housed in an integrated setting, which includes being housed in a cubicle with GP inmates. Wishnefsky asks this Court to direct DOC to prepare a plan requiring D-Unit to house disabled inmates in the most integrated setting appropriate to the needs of the individual, by housing personal care inmates and GP inmates in the same cubicle.
In response, DOC filed a preliminary objection in the nature of a demurrer. DOC argues that DOC's sleeping arrangements within D-Unit do not violate the integration mandate and do not constitute discrimination. Further, DOC contends Wishnefsky did not establish that he is not being treated in the most integrated setting appropriate to his needs.
II. Discussion
In considering a demurrer, we accept as true all well-pled material allegations in the petition, as well as all inferences reasonably deducible therefrom. Aviles v. Dep't of Corr., 875 A.2d 1209 (Pa. Cmwlth. 2005). However, conclusions of law and unjustified inferences are not so admitted. Allen v. Dep't of Corr. ___ A.3d ___, (Pa. Cmwlth., No. 187 M.D. 2014, filed August 27, 2014). A demurrer must be sustained where it is clear and free from doubt that the law will not permit recovery under the alleged facts. Id.
A proceeding in mandamus is an extraordinary remedy at common law, designed to compel the performance of a ministerial act or mandatory duty. McCray v. Dep't of Corr., 872 A.2d 1127 (Pa. 2005); Detar v. Beard, 898 A.2d 26 (Pa. Cmwlth. 2006). "The purpose of mandamus is not to establish legal rights, but to enforce those rights already established beyond peradventure." Detar, 898 A.2d at 29. "Furthermore, this Court may only issue a writ of mandamus where the inmate possesses a clear legal right to enforce the performance of a ministerial act or mandatory duty, the defendant possesses a corresponding duty to perform the act, and the inmate possesses no other adequate or appropriate remedy." Cunningham v. Dep't of Corr., 990 A.2d 1205, 1207 (Pa. Cmwlth. 2010). If any one of the foregoing elements is absent, mandamus does not lie. Nickson v. Pa. Bd. of Prob. & Parole, 880 A.2d 21 (Pa. Cmwlth. 2005). Mandamus will not be granted in doubtful cases. Id.
A. Clear Right
To obtain mandamus relief, Wishnefsky must show "an immediate, specific, well-defined and complete legal right to the thing demanded." Equitable Gas v. City of Pittsburgh, 488 A.2d 270, 273 (Pa. 1985). Here, Wishnefsky demands DOC implement a housing plan whereby all of the cubicles, including those containing hospital beds, are integrated.
Wishnefsky predicates his claim on a violation of the integration mandated under the ADA. In implementing regulations, the general integration mandate provides: "A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. §35.130(d). Pursuant to 28 C.F.R. §35.152, the integration mandate applies to correctional facilities. It states:
(b) Discrimination prohibited.28 C.F.R. §35.152(b)(2) (emphasis added).
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(2) Public entities shall ensure that inmates or detainees with disabilities are housed in the most integrated setting appropriate to the needs of the individuals. Unless it is appropriate to make an exception, a public entity—
(i) Shall not place inmates or detainees with disabilities in inappropriate security classifications because no accessible cells or beds are available;
(ii) Shall not place inmates or detainees with disabilities in designated medical areas unless they are actually receiving medical care or treatment;
(iii) Shall not place inmates or detainees with disabilities in facilities that do not offer the same programs as the facilities where they would otherwise be housed; and
(iv) Shall not deprive inmates or detainees with disabilities of visitation with family members by placing them in distant facilities where they would not otherwise be housed.
The alleged discriminatory practice here is the housing of personal care inmates in cubicles containing only hospital beds, rather than in cubicles containing bunk beds shared with GP inmates. Cubicles contain either all bunk beds, or all hospital beds, so that a cubicle with hospital beds will not house any GP inmates. As a result, personal care inmates assigned to hospital beds are in effect segregated from GP inmates for sleeping purposes.
Wishnefsky asserts he has a clear right to be housed in the same cubicle as GP inmates. He repeatedly states "anything less than the most integrated setting, appropriate to [the inmates'] needs, with the fullest possible interaction with nondisabled persons, is discrimination under [the] ADA, Title II." Answer to DOC's Prelim. Objections (Answer) at ¶¶25-26.
However, in support of his alleged right to an integrated cubicle, used for sleeping purposes, Wishnefsky cites cases that involved the categorical segregation of disabled inmates from GP inmates for residence, recreation, and meal consumption purposes. See, e.g., Pierce v. Cnty. of Orange, 526 F.3d 1190 (9th Cir. 2008) (dexterity-impaired detainees segregated for meals, recreation and residence purposes based on security concerns surrounding integration with GP); Henderson v. Thomas, 913 F.Supp.2d 1267 (M.D. Ala. 2012) (HIV-positive inmates categorically segregated from all GP inmates for all activities). These cases are thus distinguishable on their facts.
The facts as currently pled do not establish a clear right to integrated sleeping arrangements. At this stage, however, we need not definitively resolve the issue of whether Wishnefsky possesses a clear right to relief because, as discussed below, Wishnefsky cannot satisfy the remaining two prerequisites for a mandamus claim.
B. Corresponding Duty
"It is axiomatic that mandamus will issue only to compel an officer or agency to perform a purely ministerial duty." Citizens Comm. to Recall Rizzo v. Bd. of Elections of City & Cnty. of Phila., 367 A.2d 232, 236 (Pa. 1976). "It is well-settled that mandamus will never lie to compel a review of a decision of ... [a] person invested with discretion ...." Id. (citations omitted). In the instant case, Wishnefsky seeks relief that would require DOC to house personal care inmates with GP inmates.
In making determinations as to the housing appropriate for each inmate, DOC exercises its judgment and discretion. By necessity, DOC cubicle assignments are not a ministerial duty that may be mandated by court order. Johnson v. Horn, 782 A.2d 1073 (Pa. Cmwlth. 2001) (single-cell assignment for medical reasons is not ministerial duty; requires exercise of discretion in particular way); see generally Bronson v. Cent. Office Review Comm., 721 A.2d 357 (Pa. 1998) (prison officials need to exercise judgment to preserve order and security free from judicial interference). Rather, housing assignments are individualized determinations that account for the health and security of each inmate. Thus, mandamus is not an appropriate means to compel DOC's exercise of discretion in making inmate housing assignments.
C. Alternate Remedy
Additionally, mandamus is not appropriate where Wishnefsky has another adequate or appropriate remedy. Specifically, the cases cited by Wishnefsky did not involve claims sounding in mandamus; rather, they involved suits in which the inmates directly challenged the conditions of incarceration as discriminatory. See, e.g., Pierce; Henderson. Thus, Wishnefsky's challenge to DOC's housing policy is more appropriately raised as a direct discrimination claim under the ADA, see Henderson, or as a suit under 42 U.S.C. §1983, see Pierce. Indeed, where a statutory remedy exists, mandamus is improper. Petsinger v. Dep't of Labor & Indus, Office of Vocational Rehab., 988 A.2d 748 (Pa. Cmwlth. 2010). Because Wishnefsky possesses an available alternate remedy, which is more suited to obtaining a change in DOC's housing decisions in the event such decisions result in discrimination, mandamus does not lie.
III. Conclusion
All three prerequisites for a mandamus claim must be met in order for Wishnefsky to state a claim for this extraordinary relief. See Nickson. Here, Wishnefsky cannot establish either a ministerial duty that DOC neglected to perform, or the lack of another appropriate remedy. The failure to satisfy these essential prerequisites cannot be cured by amendment.
Ultimately, because housing arrangements are within DOC's discretion and Wishnefsky is unable to show lack of another appropriate remedy, he fails to state a mandamus claim. Therefore, DOC's preliminary objection in the nature of a demurrer is sustained.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 8th day of January, 2015, the preliminary objection of the Pennsylvania Department of Corrections is SUSTAINED, and Petitioner's petition for review is DISMISSED.
/s/_________
ROBERT SIMPSON, Judge