Opinion
No. 594 M.D. 2009
05-01-2013
Robert Hughes - Similarly Situated Persons, Petitioner v. Jeffery Beard & Penna. Dept. of Corrections, Respondents
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Robert Hughes (Hughes), who is currently an inmate in the State Correctional Institution at Albion (SCI Albion), filed a Second Amended Petition for Review (Second Amended Petition) in this Court. In his Second Amended Petition, Hughes again pursues claims against DOC, involving the following matters: (1) DOC's escrowing of funds from Hughes' inmate account for post-release transportation expenses; (2) DOC's alleged imposition of a tobacco tax before the effective date of the tax; (3) DOC's method of providing prescription eyeglasses to inmates; and (4) alleged retaliatory misconducts issued against Hughes.
Hughes filed an amended petition for review in 2009 against Respondents Pennsylvania Department of Corrections and former Secretary of Corrections Jeffrey A. Beard (collectively, DOC). (We note initially, as indicated in the caption, that Hughes apparently misspelled Secretary Beard's first name, as Secretary Beard spells his first name "Jeffrey.") DOC filed preliminary objections to some of the claims in Hughes' amended petition for review. By order dated October 6, 2010, this Court sustained in part DOC's preliminary objections to Hughes' amended petition for review. We sustained DOC's objection to Hughes' challenge regarding an administrative fee DOC imposed on him for cable television (Count III) and Hughes' claim for injunctive relief under Pennsylvania's Unfair Trade Practices and Consumer Protection Law, Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. §§ 201-1 to 210-6 (Count IV). Hughes v. Beard, (Pa. Cmwlth., No. 594 M.D. 2009, filed October 6, 2010) (Hughes I). We overruled DOC's preliminary objections to Hughes' claims relating to DOC's escrowing of funds from Hughes' account for post-release travel expenses (Count I) and Hughes' retaliation claim (Count V). We also sustained DOC's preliminary objection to Hughes' petition for review for failure to conform to the pleading requirements of Pennsylvania Rule of Appellate Procedure 1531(c). Finally, we permitted Hughes to file a second amended petition for review, conforming to and consistent with the Court's disposition of the preliminary objections.
Presently before the Court for disposition is a motion for summary judgment filed by Hughes and a cross-motion for summary judgment filed by DOC, along with a pleading filed by DOT and captioned "Suggestion of Mootness." This pleading relates to five of the six misconducts at issue in Hughes' retaliation claim. We also note that Hughes' summary judgment motion seeks relief regarding all of his claims, whereas DOC's cross-motion for summary judgment seeks judgment only with regard to Hughes' tobacco tax claim.
I. ALLEGATIONS IN THE SECOND AMENDED PETITION
A. Escrow Account for Post-Release Transportation Costs
Hughes avers that on February 2, 2008, DOC transferred $85.00 from his inmate account to an escrow account for the purpose of providing him with funds to facilitate his transportation when DOC, at an undetermined date in the future, releases him from incarceration. Hughes avers that because those funds were not available for his use, he was unable to purchase certain basic hygiene items from the prison commissary. Hughes alleges that he filed a grievance on March 1, 2008, challenging DOC's escrow policy, and that DOC denied his appeals up through the final review stage. Hughes avers that he filed another grievance on June 24, 2009, when he was unable to use funds in escrow for commissary purchases.
B. Tobacco Tax
Hughes challenges an increased charge for tobacco products. Hughes avers that on March 19, 2009, DOC sent a memo to inmates advising them that prices for tobacco products would increase because of federal legislation addressing health care coverage for children. Hughes avers that he placed an order on March 30, 2009, shortly before the April 1, 2009 effective date of the new legislation, and that DOC fraudulently deducted an additional $12.00 from his account for the tobacco products he purchased. Hughes contends that he filed a grievance, which DOC denied, and that he filed a complaint with the United States Treasury Department. Hughes avers that the United States Attorney General's office replied to his complaint in a letter, stating that the matter was a state issue.
C. Prescription Eyeglass Claim
Hughes avers that he purchased prescription eyeglasses from DOC for $47.00. Hughes contends that DOC led him to believe that a third-party—"Boulevard Boutique"—manufactured the glasses. Sometime around September 2009, while Hughes was cleaning the lenses, the frames to the eyeglasses broke. When Hughes sought to have someone within DOC's system repair the glasses, he was told that DOC does not repair eyeglasses. During the course of an appointment with DOC's optometrist for an examination and to purchase new eyeglass frames, an unnamed member of the medical staff urged Hughes to purchase plastic, not wire, frames. The staff member told Hughes that the wire frames were "junk" and that they were made by female inmates at the State Correctional Institution at Cambria. Hughes avers that both the plastic and wire-frames are trade-marked "Boulevard Boutiques." Hughes avers that he requested permission to purchase prescription eyeglasses from a source other than DOC, but that DOC refused the request. Hughes objects to DOC's refusal to permit him to purchase glasses from an outside vendor. Hughes also objects to DOC's selection of a frame vendor that has not submitted to the Commonwealth's procurement bidding process. Hughes raises a claim under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and also suggests that DOC, by failing to permit Hughes to purchase glasses from another vendor, has violated anti-trust law. Hughes requests an order from this Court "directing . . . DOC to repay $47.00 [to him], disclose the true origin of the product, announce a public bidding process for the sale of said product or in the alternative receive an anti-trust waiver, and to cease selling inferior products."
The Lanham Act is the name commonly given to the Trademark Act of 1946, 15 U.S.C. §§ 1051 - 1150.
In its response to the Second Amended Petition, DOC denies Hughes' averments that DOC personnel led him to believe that his glasses were from "Boulevard Boutiques." In fact, DOC avers that, contrary to the suggestion in Hughes' averments, "eyeglass frames are purchased from and manufactured by Hart Specialties." (DOC's Answer, ¶ 19.) DOC further avers that the name "Boulevard Boutiques" is not the name of the manufacturer of Hughes' glasses, but rather the "Name/style of the plastic frames." (Id., ¶ 21; DOC's New Matter, ¶ 69.) In its New Matter, DOC avers that the "female inmates at SCI-Cambridge Springs cut the prescription lenses and then put them into the frames." (DOC's New Matter, ¶ 70.) Based upon these averments, DOC asserts that it made no false or misleading statements regarding the manufacturer of the eyeglasses. (Id., ¶ 71.) DOC admits that Hughes requested to buy glasses from an entity other than DOC, but that DOC refused the request because "inmates may only purchase their eyeglasses from [DOC]." (DOC's Answer, ¶ 8.)
D. Retaliatory Misconduct Reports
Hughes' Second Amended Petition contains essentially the same allegations as those he included in his amended petition, and we recite below our summary in Hughes I of those allegations:
Hughes has filed several grievances against medical staff at Albion. During the course of a medical appointment, Hughes heard a corrections officer refer to Hughes as someone who had filed grievances. Two days later, Hughes claims that the same corrections officer initiated a two-week campaign of issuing five misconduct reports against Hughes. Hughes asserts that he did not violate any rules or engage in any conduct that would give rise to the misconduct reports.Hughes I at 7-8.
After the officer filed the first two misconduct reports, Hughes filed a grievance against the officer, asserting that the officer was retaliating against him for filing grievances. Hughes states that although it is difficult to prove that an employee of a correctional institution has acted in a retaliatory fashion against an inmate, in this case, the corrections officer issued the misconduct reports contrary to DOC policy. Hughes avers that the officer issued the five misconduct reports as a means of retaliating against him based upon Hughes' failure to obtain medical treatment and failure to sign a medical refusal form. He claims that any requirement that he accept medical treatment is unconstitutional. Further, while he acknowledges a DOC policy requiring inmates who refuse medical treatment to sign a waiver form, he notes the absence of any provision in the policy equating an inmate's refusal to comply to an act of misconduct.
In his Second Amended Petition, Hughes added allegations concerning additional alleged acts of retaliation by DOC correctional officers. In January 2010, a correctional officer in the medical lobby of the prison, who Hughes refers to as Fetterhoff, accepted a medical pass Hughes obtained to see the prison psychiatrist, but refused to permit Hughes to see the doctor. Hughes avers that when he asked Fetterhoff why he was refusing access to the doctor, Fetterfhoff screamed obscenities at him and then said that "McDaniel says hi." (Second Amended Petition, ¶ 35.)
McDaniel is the officer who is the subject of Hughes' claims concerning the alleged five earlier retaliatory misconducts. Hughes avers that Fetterhoff issued a fabricated misconduct to Hughes, which Hughes appealed and which DOC denied.
DOC, on the other hand, in its answer and new matter, avers that Hughes began to yell obscenities in the waiting area in front of other inmates, and that Fetterhoff issued the misconduct because he told Hughes to leave the area four times, but Hughes refused to leave, and because of Hughes' use of obscenities. As indicated above, the only relief Hughes requested in his Second Amended Petition is the same relief that he requested before: (1) an order directing DOC to expunge the misconducts; and (2) an order directing DOC to cease issuing retaliatory misconducts in the future.
Hughes includes requests for additional relief in his motion for summary judgment, including a declaration that DOC's actions were retaliatory and/or capricious or arbitrary and a request for $500 in litigation costs. Because he did not request such relief in his Second Amended Petition, we will not address the new additional requests.
II. DISCUSSION
A. Mootness Regarding Retaliation Claims
DOC states that it has expunged from Hughes' record three of the five initial misconduct charges upon which Hughes bases his retaliation claim. DOC also states that the remaining two initial misconducts "were not located as either informal or formal misconducts on [Hughes]' record, and therefore they did not need to be expunged" or "there was nothing to expunge." (Suggestion of Mootness, ¶¶ 7, 8.) Thus, DOC seeks dismissal of Hughes' claims relating to those misconducts on the basis of mootness.
In response to DOC's suggestion of mootness, Hughes argues that the mootness doctrine does not apply with regard to his retaliation claims because he requested relief in addition to expunction. While Hughes is correct in citing our decision in Krentzel v. Southeastern Pennsylvania Transportation Authority, 840 A.2d 450, 455 (Pa. Cmwlth. 2003), for the proposition that courts should not dismiss claims on mootness grounds when requests for relief relating to a claim remain to be resolved, we conclude that no live claims remain at this point. We reiterate here that Hughes' Second Amended Petition requests only that DOC expunge his misconducts and that DOC cease issuing retaliatory misconducts. Hughes does not offer an argument in response to DOC's assertion that the claim is moot based on expungement, and, consequently, we agree that the matter is moot with regard to that particular claim for relief.
As to Hughes' request for what appears to be prospective affirmative injunctive relief (that DOC cease issuing misconducts that are retaliatory), Hughes is asking for relief from harm that is entirely speculative at this juncture. Consequently, we will dismiss Hughes' claims regarding the five initial misconducts based upon mootness, as Hughes apparently does not dispute that the misconducts are no longer on his record. Because, however, DOC has not expunged the most recent misconduct report which Hughes included as an additional misconduct to his Second Amended Petition, we will address below Hughes' motion for summary judgment regarding that challenge.
B. Summary Judgment
This Court may grant summary judgment only where there are no material issues of fact to be resolved and where a party's right to relief is clear and free from doubt as a matter of law. Pa. Ass'n of Life Underwriters v. Foster, 645 A.2d 907, 910 (Pa. Cmwlth. 1994), affirmed, 542 Pa. 544, 668 A.2d 1113 (1995).
1. Escrow Account for Post-Release Transportation Costs
DOC Policy 3.1.1, Section IV, Part N (Escrow Policy), now provides, in relevant part:
The Department is not mandated by law to provide gratuities to an inmate being released. The inmate shall be responsible for having sufficient funds in his/her account at the time of release to pay his/her own transportation and to cover miscellaneous expenses.
. . . .
2. Escrow Procedures
. . . .
a. Prior to the expected date of release, an inmate will have his/her inmate account escrowed at an amount sufficient to provide funds for his/her release transportation and miscellaneous expenses.
b. Each month, inmate Accounts staff will obtain a listing of inmates scheduled for Sentence Complete four months prior to
the release month. An inmate who is identified as not having active detainers will have his/her account escrowed at a level sufficient to provide adequate funds to pay for transportation to his/her residence of record.
c. An inmate who is scheduled for parole will have his/her account escrowed upon receipt of notification from Parole or the Unit Management staff.
d. When an inmate's account is escrowed, written notice will be provided to the inmate. The notice will state the amount the inmate is expected to provide for his/her release costs. Any escrowed funds are not available for any other purpose (Commissary, cable TV, inmate organization, prepaid phone time, outside purchases, etc.) Any funds accumulated in excess of the escrow amount will be available to spend.
Hughes asserts three primary arguments in support of his motion for summary judgment regarding the escrow claim. First, he argues that the only legislative acts of our General Assembly authorizing deductions from inmates' accounts permit withdrawal of funds only to satisfy court-ordered costs and/or judgments. Second, Hughes argues that DOC's withdrawal of money from his inmate account constitutes a violation of his due process rights, asserting that DOC is taking his property (money in his account) without first providing him with a hearing. Third, Hughes argues that in order to be consistent with notions of due process, the Court should not give deference to DOC's authority in performing its essential functions.
As DOC points out in response, the General Assembly has enacted statutory provisions pertaining to inmate accounts. Chapter 31 of the Prisons and Parole Code (Code) refers to "inmate labor" in general. With regard to inmates in state correctional institutions, Section 3124 of the Code provides for inmate accounts as follows:
(a) Duty to maintain.—The department shall maintain an account of the labor performed by all inmates under sentence in the institution.61 Pa. C.S. § 3124.
(b) Contents of accounts.—In the account, the department shall credit the inmate with wages for the time the inmate actually engaged in work. The rate of the wage and the amount credited to each inmate shall be determined at the discretion of the department.
DOC relies on Section 3125 of the Code, 61 Pa. C.S. § 3125, which provides:
§ 3125. Remainder of inmate accounts.This particular statutory provision provides support for DOC's argument that statutory authority exists for DOC to limit withdrawals by an inmate of wages in his inmate account. The provision is silent as to limitations on an inmate's ability to draw upon the balance in his account that is funded by sources other than wages. DOC, however, has not fully developed its argument regarding this distinction, and thus, we cannot deny Hughes' summary judgment motion on this ground.
(a) Payment on discharge.—All sums credited to an inmate shall be for the benefit of the inmate and paid to the inmate on the inmate's discharge.
(b) Use for present needs.—An inmate who has sums to the inmate's credit may, subject to the rules and regulations of the department, draw upon the balance of the wages for present needs.
With regard to Hughes' due process claim, however, we conclude that Hughes is not entitled to summary judgment. We quote from our earlier decision in this matter as to the appropriate due process analysis:
Where an inmate raises a constitutional challenge to a prison regulation or policy, the inmate must show that the regulation or policy is "unreasonable"—i.e., that it is not "reasonably related to legitimate penological interests." Brittain v. Beard, 601 Pa. 409, 974 A.2d 479 (2009) (citing Turner v. Safley, 482 U.S. 78 (1987)). In considering the merits of such a challenge, we will assess the following factors:
(1) whether there is a "valid, rational connection" between the prison regulation and the legitimate governmental interest asserted to justify it; (2) whether alternative means are open to inmates to exercise the asserted right; (3) what impact an accommodation of the asserted constitutional right will have on guards, inmates, and prison resources; and, (4) whether there are "ready alternatives" to the rule that would accommodate prisoners' rights at de minimus cost to penological interests.
Id. at 421, 974 A.2d at 486. With respect to these factors (known generally as the "Turner factors"), the United States Court of Appeals for the Third Circuit has explained:
These requirements "serve as guides to a single reasonableness standard," but the first "'looms especially large' because it 'tends to encompass the remaining factors, and some of its criteria are apparently necessary conditions.'"
Ramirez v. Pugh, 379 F.3d 122, 126 (3d Cir. 2004) (quoting Waterman v. Farmer, 183 F.3d 208 (3d Cir. 1999)). In assessing these factors, we will give substantial deference to the professional judgment of prison administrators. Brittain, 601 Pa. at 421, 974 A.2d at 486. "[O]nce an inmate commences an action challenging a prison regulation, it is the obligation of the Department to set forth, in its answer to the inmate's complaint, its belief that there is a valid and rationale connection between the challenged regulation and an enumerated legitimate penological interest." Id. at 423-24, 974 A.2d at 487. The burden then shifts to the inmate to prove the unreasonableness of DOC's belief. Id. at 424, 978 A.2d at 487-88.Hughes I at 10-12.
With regard to the concern we expressed in Hughes I regarding the statement in DOC's policy that it is not required to provide a gratuity to an inmate upon release, we conclude that that particular statement is not inconsistent with the latter provisions of DOC's policy providing for the deduction from an inmate's account sums necessary for the transportation of the inmate upon release. Rather, we construe the two provisions together to reflect the notion that while DOC has no statutory or policy responsibility to provide gratuities to released inmates, DOC may ensure that an inmate it releases has his or her own funds to provide for necessary transportation.
As DOC notes in its brief, "[t]here is a rational relationship between the legitimate goal of not providing gratuities to inmates and withholding the money to eradicate release expenses that would otherwise be a drain on Department resources when inmates do not bear their own release costs." (DOC Br. at 9-10.) We also agree with DOC that it should not have to bear the burden associated with travel for an inmate who elects to divert his funds away from such a purpose, where DOC provides all of an inmate's life necessities for no charge at all. Moreover, one of DOC's functions encompassed within the umbrella of rehabilitating inmates so that they may return to society includes the anticipation of potential difficulties of release. DOC points out that "[i]t is commonly known that the risk of recidivism is reduced when an ex-offender has a strong family and community support structure." (DOC Br. at 10.) In recognition of this consideration, DOC's policy makes particular sense because it is certainly possible that an inmate's outside support is in a location remote from the correctional facility from which he or she is released. It could easily defeat the legitimate goals of such concerns, as DOC notes, to release an inmate without money to travel in an area far removed from family or friends and without the financial means to return to a location the inmate regards as home.
In order to ensure that an inmate has funds available for transportation upon release, DOC has implemented a policy which ensures that the legitimate objective of facilitating a released inmate's ability to travel home (given the natural difficulties that may be associated with return to society) is accomplished at the inmate's own expense, rather than at the expense of the Commonwealth. Thus, as we stated before, although even a temporary deprivation of an inmate's property may give rise to a due process claim, Fuentes v. Shevin, 407 U.S. 67, 84-85 (1972), in this case, DOC has articulated a strong, legitimate, and rational reason why it is necessary to place an inmate's funds in escrow in order to ensure adequate transportation upon an inmate's release into society. Consequently, we conclude that Hughes is not entitled to summary judgment with regard to his escrow claim.
2. Tobacco Tax Claim
This claim arises from facts relating to Hughes' March 30, 2009 order for tobacco products. The order was shipped on April 1, 2009, and delivered on April 6, 2009. Hughes admits to DOC's averments regarding the dates of his order, shipment, and delivery. Hughes avers that DOC improperly charged him a higher price on the tobacco order based upon a federal tax that was not to become effective until April 1, 2009. The subject tax increase was the result of a federal excise tax imposed under the Children's Health Insurance Program Reauthorization Act of 2009. According to DOC, the Act also imposed a "floor stocks tax" on certain tobacco items, including those Hughes ordered, which were held for sale on April 1, 2009. Hughes specifically admits to this averment in his answer to DOC's New Matter. DOC also avers in its New Matter that the suppliers from whom DOC ordered Hughes' tobacco products raised the price in advance of April 1, 2009, because the Act required manufacturers to charge higher prices based on inventory held in advance of orders to be satisfied on or after April 1, 2009.
DOC relies in part upon attachments to its cross-motion for summary judgment. We note, however, that DOC appears to have simply attached the documents without any suggestion that they are part of the record. The Pennsylvania Rules of Civil Procedure relating to motions for summary judgment, Pa. R.C.P. No. 1035.1 - 1035.5, define the term "record" to include pleadings, depositions, answers to interrogatories, admissions, affidavits, and reports signed by experts. Pa. R.C.P. No. 1035.1. DOC has not indicated whether the attachments have become part of the record, and if so, how the attachments became part of the record. While a court may have sufficient facts of record to grant a motion for summary judgment if no genuine issue of fact remains (perhaps based upon an opposing party's admissions), the facts upon which a moving party relies must be in the record. Simply attaching documents to a motion does not transform documents into a part of the record. Pa. R.C.P. No. 1035.2.
Furthermore, even if the documents were part of the record, we would conclude that they are insufficient to demonstrate that no material issues of fact remain to be resolved. One of the documents is an email from the tobacco distributor, Miller Distribution. The email suggests that Miller Distribution provides tobacco products through the Pennsylvania Department of General Services to DOC's "Pennsylvania Corrections Institutions Commissary" (PCI) (Attachment A.). The e-mail, which was sent to two individuals without specific agency affiliation, indicates that the price of the tobacco item Hughes ordered on March 30, 2009, had been changed because of "SCHIP Tax Bill" to $14.79, effective March 23, 2009. The distributor included attachments in its e-mail consisting of a March 11, 2009 "Price Increase Announcement" issued by the manufacturer of the tobacco product Hughes sought to purchase, indicating that price increases would be effective with all orders shipped beginning on March 31, 2009. The notice indicated that all RYO tobacco product prices would be subject to the price change, but that any such product shipped before March 31, 2009, would be priced at the previous lower prices. The notice also specifically states that "[s]ince the primary driver of these price changes is the Federal Excise Tax increase that is effective April 1, 2009, Conwood [the apparent manufacturer] will not be issuing a credit memo covering the difference between the old and new prices." While these details support DOC's position to some extent, we note that the exhibit reflecting Hughes' March 30, 2009 order identifies the cost of the tobacco product—1 Tobacco, Ryo, Los, Kite, 6oz., Bag, Men—as $17.23, whereas, the e-mail DOC attached to its summary judgment motion simply indicates that the price change (without identification of the previous price) for the same product is $14.79. Thus, even if the documents were part of the record, they do not fully explain the apparent difference in price between the price identified by the distributer and the price identified on the order form. Thus, we conclude that factual issues still remain with regard to Hughes' tobacco claim, and we will deny both Hughes' and DOC's motion for summary judgment.
A facet of Hughes' order that neither Hughes nor DOC mentions is that Hughes' order for tobacco products was apparently rejected because of insufficient funds. (DOC's New Matter, Exhibit H.)
3. Eyeglass Claim
Hughes claims that DOC has violated the Lanham Act, which he asserts prohibits the sale of products that are falsely or deceptively advertised. Hughes contends that DOC's use of a trade-marked name deceptively suggests that the glasses "are affiliated with a particular source." (Second Amended Petition ¶21.) Hughes also takes issue with DOC's policy of prohibiting him from obtaining his glasses from another source. Moreover, Hughes' Second Amended Petition suggests that DOC, by prohibiting him from obtaining his glasses from another source, has violated anti-trust laws. With regard to this Count, Hughes seeks an order directing DOC to (1) refund Hughes the cost of his glasses ($47.00); (2) disclose the true origin of the glasses; (3) announce a public bidding process for the sale of the glasses; and/or (4) obtain an anti-trust waiver and to cease selling inferior products.
As we noted in Hughes I, we view Hughes' pleadings regarding the "Boulevard Boutiques" glasses as a claim that DOC violated Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Section 43(a) of the Lanham Act prohibits advertising that may mislead a purchaser into believing that the origin of a product is something other than what is true.
The Lanham Act provides in pertinent part:
(a)(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
15 U.S.C. § 1125(a).(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities.
DOC first argues that Hughes does not have standing under the Lanham Act to bring his claim regarding his eyeglasses. We agree. The Lanham Act primarily serves to protect the interests of commercial enterprises. "Congress . . . did not contemplate that . . . courts should entertain claims brought by consumers." Serbin v. Sun Company, Inc., 11 F.3d 1163, 1179 (3d Cir. 1993). Rather, "[t]he Lanham Act is primarily intended to protect commercial interests . . . and [Section 43(a) of the statute] provides a private remedy to a commercial plaintiff who meets the burden of proving that its commercial interests have been harmed by a competitor's false advertising." Sandoz Pharm. Corp. v. Richardson-Vicks, Inc., 902 F.2d 222, 230 (3d Cir. 1990).
DOC acknowledges that courts have recognized an individual consumer's standing to pursue a claim under the Lanham Act, but it argues that Hughes has not pleaded facts to support his standing. Indeed, in Serbin, the United States Court of Appeals for the Third Circuit rejected a claim by consumers who sought damages based upon the assertion that they bought goods or services in reliance upon vendors' advertising claims concerning automobile rust-proofing. The court of appeals engaged in a thorough examination of the history and amendments to Section 43(a) of the Lanham Act and concluded that "Congress, when authorizing federal courts to deal with claims of false advertising, did not contemplate that federal courts should entertain claims brought by consumers." Serbin, 11 F.3d at 1179., Consequently, we agree with DOC that Hughes does not have standing under the Lanham Act.
Hughes' reliance upon the Pennsylvania Superior Court's decision in Weinberg v. Sun Company, Inc., 740 A.2d 1152 (Pa. Super. 1999), affirmed in part and reversed in part, 565 Pa. 612, 777 A.2d 442 (2001), does not aid his position. Weinberg involved a matter initiated under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL). Hughes does not mention the UTPCPL in his Second Amended Petition.
Earlier cases found standing where a consumer pleaded facts indicating that, as a consequence of actions of a commercial enterprise, the consumer experienced a commercial loss that had some relevance to the alleged Lanham Act violation. See Ditri v. Coldwell Banker, 954 F.2d 869, 872 (3d Cir. 1992). Even if that analysis is still valid, Hughes does not have a commercial interest that was affected by any alleged violation of the Lanham Act.
Next we consider DOC's argument that Hughes is not entitled to relief under his antitrust claim. DOC relies upon the state action exemption to antitrust laws. In Parker v. Brown, 317 U.S. 341 (1943), the United States Supreme Court held that the Sherman Antitrust Act (Sherman Act) does not necessarily preclude states, when acting in a sovereign capacity, from implementing anti-competitive restraints "as an act of government which the Sherman Act did not undertake to prohibit." Id. at 352. In Parker, the United States Supreme Court, however, anticipated possible exceptions when it noted that the case it was deciding did not involve a "question of the state or its municipality becoming a participant in a private agreement or combination by others for restraint of trade." Id. at 351-52.
Hughes claims that DOC waived this "issue" by failing to raise it in its New Matter. We disagree. DOC is raising this as an argument in response to Hughes' motion for summary judgment. Thus, the doctrine of waiver is not applicable.
9 U.S.C. §§ 1-7. --------
The general exclusion from applicability of the antitrust laws to actions of states in their sovereign capacity is known as the state action doctrine. This Court has described the doctrine as one which "provides immunity from antitrust laws if the state articulates a clear policy to allow the anti-competitive conduct and actively supervises the anti-competitive conduct undertaken by private actors." Bowers v. T-Netix, 837 A.2d 608, 612 n.10 (Pa. Cmwlth. 2003). Nevertheless, as suggested above, in later decisions, the courts have addressed the exceptions to this general rule:
[G]overnmental agencies are not immune from antitrust laws simply because they are government agencies. E.g., City of Lafayette v. Louisiana Power Co., 435 U.S. 389 . . . (1978)[, overruled in part by Hallie v. Eau Claire, 471 U.S. 34 (1985)]. The rule has been refined to mean that governmental actions may be exempt from antitrust laws when there is a strong showing that the action is essential to regulating the subject matter concerned (here, prisons and prisoners), or that the regulation of the subject matter concerned is essential to a primary governmental function or within a state's traditional
regulation of an area. Bates v. State Bar of Arizona, 433 U.S. 350 . . . (1977).Jackson v. Taylor, 539 F. Supp. 593, 595 (D.C. 1982), affirmed without opinion, 715 F.2d 865 (D.C. Cir. 1983).
Hughes argues that based upon the assumption that female prisoners at one of DOC's correctional institutions assemble eyeglasses by placing lenses into the frames that DOC procured from an outside vendor, DOC's actions make it a market participant subject to the antitrust laws rather than a sovereign exercising a primary governmental function or acting within a traditional area of regulation. While Hughes asks this Court to focus on the manner of compilation of the eyeglasses, rather than on the limited purpose of DOC's method and the similarly limited special market at issue, i.e., persons incarcerated in state correctional institutions, these facets lay at the heart of the issue. In fact, the United States Supreme Court in City of Lafayette did not speak in unison with regard to the particular municipal action at issue in that case (the provision of a public utility), but rather, Justice Brennan, in section II of the decision, speaking with the support of only three other justices, opined that "the Parker doctrine exempts only anticompetitive conduct engaged in as an act of government by the State as sovereign, or, by its subdivisions, pursuant to state policy to displace competition with regulation or monopoly public service." City of Lafayette, 435 U.S. at 413. As noted by the dissent, the plurality's decision was based upon the proprietary nature of the municipality's action. Id. at 427. The dissent considered the purpose behind the Sherman Act, and reasoned that Congress "was concerned with attacking concentrations of private economic power unresponsive to public needs, such as 'these great trusts, these great corporations, these large moneyed institutions.' 21 Cong. Rec. 2562 (1890)." Id. at 428.
It is clear that even if we assume that DOC prohibits inmates from obtaining eyeglasses from outside sources and DOC provides eyeglasses that are assembled by inmates, DOC's action affects only the universe of inmates confined within its correctional institutions. DOC's eyeglass policy does not in any other way impact competitors who operate outside that limited universe. DOC's policy does not preclude other potential purchasers (i.e., non-inmate purchasers) from purchasing other eyeglasses. Moreover, as numerous decisions of Pennsylvania courts illustrate, our General Assembly designated DOC as the entity to administer and supervise all aspects of inmate confinement. Although eyeglasses do not appear to present an opportunity for the importing of contraband, see Jordan v. Mills, 473 F. Supp. 13, 17 (E.D. Mich. 1979), prison officials are in the best position to make, and need latitude in making, decisions regarding products that come into penal institutions in order to maintain prison security. Id. In fact, the district court in Jordan reasoned that the creation of the state action doctrine was a response to the perception that antitrust laws could pose a threat to federalism. Id. Consequently, we conclude that Hughes is not entitled to summary judgment as to his prescription eyeglass claim, and we deny Hughes' motion for summary judgment relating to this claim.
4. Grievance/Retribution Claim
The remaining grievance Hughes seeks to have expunged relates to events that occurred when Hughes had a medical appointment in January 2010. As indicated above, DOC and Hughes disagree regarding the factual issues involved in this event. This dispute is reason enough to deny Hughes' motion for summary judgment.
Additionally, DOC argues that Hughes is not entitled to summary judgment on this claim because the administrative finding that Fetterhoff had grounds to issue the misconduct, "checkmates [Hughes'] retaliation claim." Henderson v. Baird, 29 F.3d 464, 469 (8th Cir. 1994), cert. denied, 515 U.S. 1145 (1995). The Court of Appeals in Henderson reasoned that the proper way to frame the inquiry in a retaliation claim is
not whether the prisoner alleges that prison officials retaliated against him for participating in constitutionally protected activity [such as filing legitimate grievances], but instead is whether the prison disciplinary committee ultimately found based upon some evidence that the prisoner committed the charged violation of the prison regulations.Id.
In its answer to the Second Amended Petition, DOC includes the documentation relating to the misconduct involving Fetterhoff. Exhibit H to DOC's answer includes the misconduct, Hughes' two-page version of the incident, a document submitted by Hughes indicating that he wanted to obtain a copy of a video of the waiting room when and where the incident occurred, and that he wanted to call two witnesses who he could not identify by full name. The form also indicates the hearing examiner assigned to consider Hughes' challenge to the misconduct determined that "Hex attempted to view video. None available according to Security." The hearing examiner also noted that Hughes did not provide a name for one witness and provided only a first name, Don, for the other witness. Based upon the evidence presented, the hearing examiner concluded that Hughes was guilty of the misconduct charges. Hughes persisted in his available administrative appeals. In a motion Hughes filed with this Court on February 16, 2010, he requested peremptory judgment. In that pleading, Hughes included Exhibit T, which appears to purport to be an affidavit of Donald Crawley, whom stated that he was present in the medical waiting area on the day the incident occurred. His affidavit corroborates Hughes' version of the incident.
We note, however, that despite the possibility that this later-produced evidence could have made a difference in the underlying misconduct determination, the rule of law provides, as discussed above, that a finding of "some evidence" to support a prison disciplinary determination negates a prisoner's claim of retaliation. Nifas v. Beard, 374 F.App'x 241, 244 (3d Cir. 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 2103 (2011) (quoting Henderson, 29 F.3d at 469). Based upon the existence of "some evidence" that supports DOC's issuance of the misconduct, we agree with DOC that Hughes is not entitled to summary judgment on his single remaining retaliation claim.
Accordingly, we will deny Hughes' summary judgment motion as well as DOC's cross-motion for summary judgment. We agree, however, that Hughes' claims regarding the initial five misconducts are moot, and we, therefore, dismiss those claims.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 1st day of May, 2013, the motion for summary judgment filed by Petitioner Robert Hughes (Petitioner) is DENIED. The cross-motion for summary judgment filed by the Respondents Jeffrey Beard and the Department of Corrections is DENIED. We DISMISS as MOOT Petitioner's claims requesting expungement of the misconducts identified in Petitioner's Second Amended Petition for Review by the following alpha-numeric designations: B140941, B140942, A844703, A844704, and A844710.
/s/_________
P. KEVIN BROBSON, Judge BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
CONCURRING AND DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN
I respectfully concur in part and dissent in part. While I agree with the balance of the majority's decision, I disagree with its conclusion that Robert Hughes is not entitled to summary judgment on his escrow account claim. I believe that the Pennsylvania Department of Corrections' (DOC) current policy of escrowing funds from inmate accounts for post-release transportation expenses is unconstitutional. Therefore, I would grant summary judgment in Hughes' favor on this issue.
Hughes asserts that DOC, on its own initiative, withdrew $85.00 from his inmate account in February 2008 to cover post-release transportation expenses. Hughes claims that due to DOC's unauthorized withholding of these funds, he did not have enough money in his account to purchase commissary items and basic items of necessity.
A DOC policy that infringes on an inmate's constitutional rights is not presumed to be valid. Moss v. Pennsylvania Department of Corrections, 868 A.2d 615, 618 (Pa. Cmwlth. 2004). Such a policy "is valid only if it is 'reasonably related to legitimate penological interests.'" Id. (citation omitted). In reviewing the validity of DOC's escrow policy, we must consider whether the restriction on Hughes' constitutional rights has a "rational connection" to the stated goal. See id.
Here, DOC asserts that the purposes of the escrow policy are to reduce the risk of recidivism for released inmates by providing the funds necessary to return to their communities and to rehabilitate inmates in its custody, which includes the anticipation of potential difficulties upon release. (DOC's Br. at 7, 11.) I believe that DOC has failed to establish a rational connection to these stated goals.
I recognize that DOC has a legitimate interest in facilitating an inmate's return home upon his or her release from custody. However, DOC's unauthorized withdrawal of funds from inmate accounts for future transportation expenses implicates due process, which requires notice and an opportunity to be heard. Our court has long recognized the importance of transparency in prisoner fiduciary matters, stating:
It is beyond dispute that money is property, and private property cannot be taken by the government without due process afforded to the owner. Reasonable notice and a hearing are required before appropriating funds from an inmate's account without his/her consent.Anderson v. Horn, 723 A.2d 254, 256 (Pa. Cmwlth. 1998) (emphasis added) (citations omitted); see also Holloway v. Lehman, 671 A.2d 1179, 1182 (Pa. Cmwlth. 1996).
While the majority recognizes that even a temporary deprivation of an inmate's property may give rise to a due process claim, it erroneously concludes that DOC has articulated a strong penological interest that outweighs any constitutional violation. DOC claims that absent the policy, hitchhiking inmates would "flood" the Commonwealth's rural communities, creating a "recipe for recidivism." (DOC's Br. at 11.) In my view, DOC's concerns are speculative at best and do not outweigh the obvious infringement on Hughes' due process rights.
To clarify, it is not my position that DOC is prohibited from ever establishing an inmate escrow policy similar to the one at issue here. I simply believe that, before implementing and enforcing the policy, DOC must follow proper procedural safeguards by affording the inmate an opportunity to be heard or by following the notice and public comment requirements of the law commonly known as the Commonwealth Documents Law, Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§1102-1602, and 45 Pa. C.S. §§501-907.
Accordingly, I would grant summary judgment in Hughes' favor on the escrow account issue only.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge