Opinion
No. 1425 C.D. 2013
05-28-2014
Patrick Horan, Appellant v. John Wetzel, Department of Corrections, Shirley Moore Smeal, Robert MacIntyre, Dorina Varner, Robert Collins, Anthony Kovalchik, Timothy Clark, Sharon Luquis, Albert Idacavage, Trevor Hardy, Vincent Suzadail, John Warford, Jay Covington and Larry Eidem
OPINION NOT REPORTED MEMORANDUM OPINION
Patrick Horan, an inmate at the State Correctional Institution (SCI), appeals pro se from the order of the Court of Common Pleas of Schuylkill County that sustained Appellees' preliminary objections and dismissed, with prejudice, his action seeking relief under 42 U.S.C. § 1983 (Section 1983). The court also denied Horan's request for leave to file an amended complaint. Horan challenges the court's order and further argues that the trial judge should have recused himself from the case due to his previous disapproval of Horan's private criminal complaint as a district attorney. We affirm in part, vacate in part and remand.
In October 2012, Horan filed the instant action against the officials and officers of the SCI at Frackville: Superintendent Robert Collins, Deputy Superintendent Anthony Kovalchik, Intelligence Captain Timothy Clark, Misconduct Hearing Examiner Sharon Luquis, Unit Manager Albert Idacavage, Sergeants Trevor Hardy and Vincent Suzadail, and Corrections Officers John Warford, Jay Covington and Larry Eidem. Horan also named as defendants the officials of the Pennsylvania Department of Corrections (Department): Secretary John Wetzel, Deputy Secretary Shirley Moore Smeal, Chief Misconduct Hearing Examiner Robert MacIntyre and Chief Grievance Coordinator Dorina Varner. To support his action, Horan relied on the following allegations.
On October 9, 2010, Horan witnessed Corrections Officer Eidem and Sergeant Hardy choking an inmate, Wayne Liddick, slamming his face on the blacktop, and striking him with his cane while yelling, "quit resisting." Complaint, ¶ 9. Horan collected names of assault witnesses, gave them to prison staff and asked the prison staff to preserve a videotape showing the assault. The next day, Eidem verbally assaulted Horan, for which he filed a grievance. Sergeant Suzadail later threatened Horan for filing grievances against the officers. Intelligence Captain Clark interviewed Horan and investigated the October 9 incident. He later informed Horan that his investigation did not reveal any misconduct by the officers and that there was no videotape showing the incident.
In December 2010, Horan filed a private criminal complaint with the office of then Schuylkill County District Attorney James Goodman, accusing Eidem and Hardy of committing criminal offenses on October 9. District Attorney Goodman disapproved Horan's private criminal complaint, citing his office's policy of referring prisoners' private criminal complaints to the Department. Horan was thereafter moved to a different cell. He then filed a grievance and asked Hardy and Suzadail for a grievance form. Corrections Officer Warford issued a misconduct citation against him the same day.
Horan challenged the disapproval of his private criminal complaint, which was rejected by the trial court. The Superior Court affirmed, and the Pennsylvania Supreme Court denied his petition for allowance of appeal on October 11, 2012.
Horan further alleged that at a misconduct hearing, Misconduct Hearing Examiner Luquis did not consider his documents and did not allow him to present evidence. Luquis found him guilty of misconduct, placed him in the restrictive housing unit for 60 days and removed him from a prison job. Horan thereafter filed more grievances against the prison staff and sent letters to Superintendent Collins and Secretary Wetzel, complaining about the October 9, 2010 incident and retaliatory action taken by the prison staff against him "for seeking justice." Complaint, ¶ 28. Horan thereafter received another misconduct citation. Luquis again did not allow him to present evidence at a misconduct hearing. After indicating that he, Liddick and another inmate would file an action against the prison staff, he was transferred to the SCI at Cresson.
Based on these allegations, Horan claimed that Appellees retaliated against him for exercising his right to freedom of speech after witnessing the October 2010 assault and that Appellees' failure to investigate his retaliation claims and failure to review his documents and allow him to present evidence at the misconduct hearings violated his constitutional due process rights. Horan sought compensatory and punitive damages against Appellees for their violations of the First, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, U.S. CONST. amends. I, VI, VIII and XIV, and Article 1, Sections 7, 9 and 11 of the Pennsylvania Constitution, Pa. CONST. art. 1, §§ 7, 9 and 11. Horan's action was assigned to Judge Goodman, the former Schuylkill County District Attorney who had been elected to the bench.
The Department filed preliminary objections to the complaint on March 1, 2013, raising Horan's lack of capacity to sue Appellees on behalf of Liddick, failure to state a cause of action under Section 1983, and failure to state claims under the Pennsylvania Constitution. On March 20, Horan filed a response to the preliminary objections and an amended complaint adding a claim that Appellees' retaliatory action also violated Article 1, Section 26 of the Pennsylvania Constitution, Pa. CONST. art. I, § 26. In the amended complaint, he requested the court's leave to amend the complaint. Judge Goodman denied Horan's request, sustained the preliminary objections and dismissed the complaint with prejudice for failure to state a claim under Section 1983. Horan appealed Judge Goodman's order and filed a statement of errors complained of on appeal alleging, inter alia, that Judge Goodman was biased and should have recused himself from the case.
Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....
Article 1, Section 26 of the Pennsylvania Constitution provides that "[n]either the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right."
In reviewing an order sustaining preliminary objections in the nature of a demurrer, this Court must accept as true all well-pleaded allegations of material facts and inferences deducible therefrom. Cnty. of Dauphin v. City of Harrisburg, 24 A.3d 1083, 1089 (Pa. Cmwlth. 2011). A demurrer may be sustained if it appears with certainty that the law will not permit recovery. Id. Our review of an order sustaining a demurrer is plenary. Ballroom, LLC v. Commonwealth, 984 A.2d 582, 586 n.3 (Pa. Cmwlth. 2009).
The Department has filed a motion to quash Horan's reply brief and two exhibits attached thereto: his letters sent to Superintendent Collins in July and August 2011, stating his intention to file an action against the prison staff (Exhibit A), and a copy of the Supreme Court's October 11, 2012 order denying his petition for allowance of appeal from the Superior Court's order affirming the trial court's rejection of his challenge to the disapproval of his private criminal complaint (Exhibit B). An appellant "may file a brief in reply to matters raised by appellee's brief ... and not previously addressed in appellant's brief." Rule 2113(a) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 2113(a). In a reply brief, an appellant may not raise additional issues or rehash the issues previously argued in the initial brief. Park v. Chronister, 617 A.2d 863, 871 (Pa. Cmwlth. 1992). Although Horan rehashes the issues raised in his initial brief to some extent, he mostly addresses the arguments raised in the Department's brief and not previously addressed in his initial brief, e.g., the lack of his capacity to sue and the temporal proximity of his filing of the grievances and private criminal complaint to the alleged retaliatory action. He attached Exhibit A (July and August 2011 letters) to the reply brief in response to the Department's argument that there was no temporal proximity of his transfer to the SCI at Cresson to his statement of intention to file an action against the prison staff. Exhibit B (a copy of the Supreme Court's order) is a public record and does not raise any additional issue. Accordingly, we will deny the Department's motion to quash.
Horan argues that he stated a cause of action under Section 1983 by alleging that the prison staff retaliated against him for exercising his right to freedom of speech "in regards to his witnessing the October 9, 2010 [a]ssault," insisting on an assault investigation, filing a private criminal complaint, requesting a grievance form, and stating his intention to file an action against the prison staff. Complaint, ¶ 31. He claims that the prison staff falsified misconduct against him and that retaliatory action taken by the prison officials violated his right to freedom of speech and his due process rights protected by the First and Fourteenth Amendments to the United States Constitution and Article 1, Sections 7 and 11 of the Pennsylvania Constitution.
The First Amendment provides, inter alia, that "Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances." The Fourteenth Amendment, Section 1, provides that "[n]o 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 ...." Under Article I, Section 7 of the Pennsylvania Constitution, "[t]he free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty." Article 1, Section 11 of the Pennsylvania Constitution provides:
All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay. Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.
To state a cause of action under Section 1983, a plaintiff must allege that the conduct complained of was committed by a person acting under color of state law and that such conduct deprived him or her of rights, privileges or immunities guaranteed by the United States Constitution or federal law. Palmer v. Bartosh, 959 A.2d 508, 514 (Pa. Cmwlth. 2008). A prisoner states a valid retaliation claim when the prisoner alleges that he or she engaged in a constitutionally protected conduct, that prison officials took adverse action, and that the protected conduct was a substantial or motivating factor for the adverse action. Yount v. Pa. Dep't of Corr., 966 A.2d 1115, 1120 (Pa. 2009). An adverse action in the context of a retaliation claim is an action which is "'sufficient to deter a person of ordinary firmness from exercising his [constitutional rights].'" Id. at 1121 [quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)]. A prisoner who alleges retaliation for filing a grievance or a lawsuit against prison staff invokes the First Amendment right of access to the courts. Yount, 966 A.2d at 1121; Bush v. Veach, 1 A.3d 981, 985 (Pa. Cmwlth. 2010); Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003).
Prisoners do not shed all constitutional rights at the prison gate. Sandin v. Conner, 515 U.S. 472, 485 (1995). However, "'[l]awful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizens, a 'retraction justified by the considerations underlying our penal system.'" Wolff v. McDonnell, 418 U.S. 539, 555 (1974) [quoting Price v. Johnston, 334 U.S. 266, 285 (1948)]. A prisoner retains the "First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974). Consequently, the prison official's action allegedly inhibiting the First Amendment rights must be analyzed "in terms of the legitimate policies and goals of the corrections system." Id. In so analyzing, we must accord great deference to prison officials' adoption and execution of policies and practices that in their judgment are necessary to preserve internal order and maintain institutional security. Bullock v. Horn, 720 A.2d 1079, 1082 (Pa. Cmwlth. 1998). It is a prisoner's burden to establish that the action taken by prison officials did not advance legitimate penological objectives. Yount, 966 A.2d at 1120.
Although Horan had the First Amendment right to report the alleged October 2010 assault to the prison staff, his right as a prisoner did not extend to include investigating the assault himself. Allowing such conduct would be inconsistent with his status as an inmate and would not promote the penological goals of maintaining peace and security at the prison and protecting the safety of inmates and the prison staff. The prison officials conducted an investigation of the alleged assault and did not find that the prison officers' action constituted misconduct.
Further, Horan's retaliation claim based on his transfers to a different cell and a different prison failed to state a cause of action under Section 1983. Prisoners have no constitutional right to remain in any particular cell. Thomas v. Holtz, 707 A.2d 569, 571 (Pa. Cmwlth. 1998). Prison officials have the authority to determine where a prisoner should be housed. Singleton v. Lavan, 834 A.2d 672, 675 (Pa. Cmwlth. 2003). Administrative prisoner transfers are presumed to further legitimate penological objectives unless a prisoner proves otherwise. Yount, 966 A.2d at 1121. To support the retaliation claim, Horan relied on the temporal proximity of the alleged retaliatory action taken by the prison officials to his filing of the grievances and private criminal complaint and expressing his intention to file an action against the prison staff. However, circumstantial evidence of a temporal proximity is "appropriate only when 'timing of the alleged retaliatory action [is] unusually suggestive of retaliatory motive.'" Id. 966 A.2d at 1122 [quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997)]. While the temporal proximity here is somewhat suggestive of retaliatory motive, the facts pled equally support an inference that his transfers resulted from a pattern of disruptive conduct over an incident in which he had no standing. Therefore, we must conclude that this raises an issue of fact which cannot be resolved on preliminary objections.
Horan also alleged that he was verbally assaulted by the prison officers in retaliation for filing the grievances. Without further reinforcing act, however, mere verbal harassment or threats, or a use of vulgarity fails to state a constitutional claim. Maclean v. Secor, 876 F.Supp. 695, 698 (E.D. Pa. 1995).
However, we agree that his placement in the restrictive housing unit for 60 days and his transfer to a different prison did not constitute cruel and unusual punishment prohibited by the Eighth Amendment. To prove a violation of the Eighth Amendment, an inmate must demonstrate that the prison officials' alleged act denied the minimal civilized measure of life's necessities, which posed a substantial risk of serious harm, and that the prison officials acted with a sufficiently culpable state of mind. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Horan was placed in the restrictive housing unit as a punishment for misconduct. Such disciplinary action "effectuates prison management and prisoner rehabilitative goals." Sandin, 515 U.S. at 485. A disciplinary placement of an inmate in segregated confinement or a transfer to a different prison is well within the expected parameters of the sentence, is an ordinary incident of prison life, and does not present "atypical and significant hardship on the inmate." Id. at 484.
We also reject Horan's argument that the hearing examiner's refusal to permit him to present the testimony of his witnesses and to speak at the misconduct hearings violated his due process rights under the Sixth and Fourteenth Amendments and Article 1, Section 9 of the Pennsylvania Constitution. As the trial court noted, the Sixth Amendment and Article 1, Section 9 apply to criminal proceedings, and thus are not applicable here. Moreover:
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor ...." Under Article 1, Section 9 of the Pennsylvania Constitution, the accused has a right "to be heard" and "to be confronted with the witnesses against him."
The Fourteenth Amendment Due Process Clause prohibits state and local government officials from depriving persons of life, liberty, or property without due process of law. Procedural due process rights are triggered by deprivation of a legally cognizable property or liberty interest. Brown v. Blaine, 833 A.2d 1166 (Pa.Commw. 2003). For a prisoner, such a deprivation occurs when the prison "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. (citing Sandin v. Conner,
515 U.S. 472, 484 ... (1995)). Lesser restraints on a prisoner's freedom are deemed to fall "within the expected parameters of the sentence imposed by a court of law." It is well settled that a prison job is not a property right and the imposition of restrictive housing does not trigger a liberty interest. Bush v. Veach, 1 A.3d 981 (Pa. Commw. 2010). The procedures for pursuing inmate grievances and misconduct appeals are a matter of internal prison administration and the "full panoply of rights due a defendant in a criminal prosecution is not necessary in a prison disciplinary proceeding." Brown v. PA. Dept. of Corrections, 913 A.2d 301 (Pa.Commw. 2006).Trial Court's Opinion at 4-5.
Even in situations where a sufficient interest is at stake to require some level of due process protection, prison disciplinary proceedings "are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Wolff, 418 U.S. at 556. As the Court stated in Wolff:
Ordinarily, the right to present evidence is basic to a fair hearing; but the unrestricted right to call witnesses from the prison population carries obvious potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program of the institution. ... [W]e must balance the inmate's interest in avoiding loss of good time against the needs of the prison, and some amount of flexibility and accommodation is required. Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence. ... [T]hey must have the necessary discretion without being subject to unduly crippling constitutional impediments. There is this much play in the joints of the Due Process Clause, and we stop short of imposing a more demanding rule with respect to witnesses and documents.Id. at 566-67. The Court held that the minimum procedural due process requirements are satisfied if inmates are given "advance written notice of the claimed violation and a written statement of the factfinders as to the evidence relied upon and the reasons for the disciplinary action taken." Id. at 563.
Horan does not dispute that he was given written notice of misconduct before the hearings. The circumstances of the charges were "read and fully explained to" him at the hearings. See Exhibit G to the Complaint. The hearing examiner exercised her discretion and decided not to permit Horan to present evidence at the hearings. The hearing examiner stated her decisions and her reasons for the decisions at the conclusion of the hearings and subsequently issued written decisions containing the evidence considered, findings of fact, verdicts and sanctions imposed. Id. The misconduct hearings thus satisfied the procedural due process requirements set forth in Wolff.
Horan's allegation that the prison staff falsified misconduct against him must also fail because he was found guilty of the misconduct after the hearings that complied with the procedural due process requirements. Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir. 1984).
To be liable in a civil rights action, a defendant, must have personal involvement in the alleged wrongs. Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003). In seeking damages against the officials of the Department and the SCI at Frackville, Horan relied on the allegations that he sent them correspondence complaining about the October 2010 assault and the subsequent retaliatory action by the prison staff. In Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988), the plaintiff named former Governor Thornburgh as one of the defendants in a Section 1983 action. She averred that the Governor acquiesced to retaliatory harassment after he became aware of the alleged harassment through the filing of grievances with his office and telephone calls and correspondence with the Lieutenant Governor's office. The Court concluded that the plaintiff's claim was precluded due to her failure to allege the Governor's personal knowledge of the retaliatory harassment and that the Governor's "'responsibility for supervising' the other defendants [was] irrelevant." Id. at 1208. As in Rode, Horan failed to allege any specific facts indicating the officials' personal involvement in the alleged violations of constitutional rights. Hence, Horan failed to state a claim against the officials.
Horan next challenges the trial court's dismissal of the action without granting him leave to file an amended complaint. Rule 1028(c)(1) of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 1028(c)(1), provides that "[a] party may file an amended complaint as of course within twenty days after service of a copy of preliminary objections." Horan filed an amended complaint and sought the court's leave to amend the complaint on March 20, 2013, within 20 days of the filing of the preliminary objections on March 1. Therefore, he was not required to obtain leave to amend the complaint. In the amended complaint, however, Horan did not allege any additional facts and only added an allegation that Appellees' action also violated Article 1, Section 26 of the Pennsylvania Constitution, prohibiting the Commonwealth and its political subdivisions from denying enjoyment of civil rights and discriminating against any person for exercising such rights. Section 1983 provides for damages only when a state actor violates rights of a citizen that arise under federal law, not under the Pennsylvania Constitution or state law. Brown v. Blaine, 833 A.2d 1166, 1170 n.10 (Pa. Cmwlth. 2003). Horan, therefore, cannot recover for a violation of Article 1, Section 26 of the Pennsylvania Constitution in a Section 1983 action, and the trial court did not err in dismissing the action with prejudice.
Finally, Horan argues that Judge Goodman was biased against him and should have recused himself from the case because he previously disapproved the private criminal complaint as District Attorney. A party seeking recusal has the burden of establishing bias, prejudice or unfairness which raises a substantial doubt as to the jurist's ability to impartially preside over the case; an adverse ruling alone does not establish bias warranting recusal. Arnold v. Arnold, 847 A.2d 674, 680-81 (Pa. Super. 2004). A party must seek recusal or disqualification "at the earliest possible moment" or will suffer a waiver of the issue. Residents of Buckingham Springs v. Bucks Cnty. Assessment Office, 60 A.3d 883, 888 (Pa. Cmwlth. 2013).
The trial court's record shows that Horan became aware of Judge Goodman's assignment to the case as early as December 4, 2012 when Judge Goodman directed him to amend his petition to proceed in forma pauperis within 30 days, or January 29, 2013 when Judge Goodman granted his petition. Horan, however, waited until after he appealed the dismissal of his action on August 5 to question Judge's impartiality in the statement of errors complained of on appeal. Because Horan failed to promptly raise the issue, he waived the issue and may not raise it on appeal.
Because we affirm the dismissal of Horan's action for failure to state a cause of action under Section 1983, it is unnecessary to further address the Department's argument that he lacked the capacity to file the action. --------
Accordingly, the trial court's order is affirmed, except as to the retaliation claim. As to that claim, the order of the trial court is vacated and the case remanded for development of a factual record. PER CURIAM ORDER
AND NOW, this 28th day of May, 2014, the order of the Court of Common Pleas of Schuylkill County in the above-captioned matter is AFFIRMED in part, VACATED in part and REMANDED in accordance with the attached opinion. The Department of Corrections' motion to quash Appellant's reply brief and exhibits attached thereto is DENIED.
Jurisdiction relinquished.