Opinion
No. 1821 C.D. 2008.
Submitted: February 6, 2009.
Filed: July 17, 2009.
BEFORE: SMITH-RIBNER, Judge; JUBELIRER, Judge; KELLEY, Senior Judge.
OPINION NOT REPORTED
Before this Court is the pro se appeal of Dwayne Hill (Hill) from the order of the Court of Common Pleas of Huntingdon County (trial court) dismissing Hill's Response to Complaint with Counterclaim (Second Counterclaim) against the Department of Corrections (Department). In his appeal, Hill argues that the trial court erred in striking Hill's counterclaim pursuant to Rule 229 of the Pennsylvania Rules of Civil Procedure and in determining that Hill failed to state a legally cognizable substantive due process claim. Also before this Court is the Department's Motion to Revoke Appellant's IFP Pursuant to Pa. R.A.P. 123 (Motion).
In forma pauperis status.
Hill is an inmate presently incarcerated at SCI-Huntingdon. This matter began on March 18, 2008, when the Department filed with the trial court: a Complaint against Hill, a Motion for Preliminary Injunction, and an Application for Ex Parte Preliminary Injunction. While the procedural history before the trial court is somewhat convoluted, we include it in order to provide the background behind Hill's Second Counterclaim.
In its Complaint, the Department alleged that Hill began refusing meals on January 2, 2008, and that the Department initiated, at a separate docket number, an action for a preliminary injunction with the trial court on January 9, 2008. The Department alleged that soon after it initiated this prior action for a preliminary injunction, it discovered that there was a previous March 4, 2004 Decree Nisi (Decree Nisi), issued by the Court of Common Pleas of Northumberland County, at Docket Number EQ-04-1789, granting the Department a permanent injunction. (Complaint ¶ 7.) The Decree Nisi authorized the Department to take appropriate measures to protect Hill's health, well-being, and safety by monitoring Hill and conducting involuntary examinations if Hill missed 20 consecutive meals. The Decree Nisi authorized the Department to supply medication, nutrition, or hydration to Hill if the examination and testing objectively established the need to do so.
This action was docketed in the trial court at Docket Number 08-56.
The Department alleged that, based on the already-existing permanent injunction, the Department did not believe it necessary to continue the action filed on January 9, 2008, for a preliminary injunction. The Department further alleged that Hill was "still participating in a sporadic, but ongoing, hunger strike," and that "[i]n order to frustrate the intent of the existing Order, [Hill] r[e]fuse[d] to eat for a prolonged period, but relent[ed] before he reache[d] the 20 missed meals." (Complaint ¶¶ 9-10.) For example, Hill would refuse "to eat for three days and then eat one meal." (Complaint ¶ 11.)
The Department alleged that it was, therefore, rendered "powerless to initiate appropriate measures to examine and assess [Hill] to determine if his health [was] in danger, because" Hill never missed 20 consecutive meals. (Complaint ¶ 12.) The Department alleged that, "[a]s of breakfast time on March 18, 2008, Hill ha[d] missed eleven (11) consecutive meals." (Complaint ¶ 13.)
The Department alleged that it needed a more effective order than the Decree Nisi conditioned upon Hill missing 20 consecutive meals, because Hill "has manipulated the purpose and the spirit of that order by participating in the sporadic, but ongoing, hunger strike." (Complaint ¶ 25.) Thus, the Department requested that the trial court enter an order authorizing the Department, "through its medical staff, to involuntarily examine Hill and administer medical treatment to him . . . as may be deemed necessary . . . to preserve [Hill's] health and life." (Complaint at 5.)
By order dated March 18, 2008, the trial court granted the Department's Application for Ex Parte Preliminary Injunction and held a hearing on the matter on March 19, 2008. On March 20, 2008, the trial court entered an order that provided, in relevant part, as follows: "[A]fter hearing, It is the order of this Court that pending full hearing on the complaint filed in this cause, It is ordered that [the Department] may involuntarily, if necessary, examine and perform invasive diagnostic tests, including blood and urine, on [Hill]." (Department of Corrections v. Hill, No. 08-414, filed March 20, 2008 (C.C.P. Huntingdon County).)
The Department, in its Response to Demurrer with New Matter filed April 8, 2008, states that "[a]fter the March 19, 2008 hearing, the Department filed a Motion to Vacate the [Decree Nisi]." (Response to Demurrer with New Matter ¶ 1.) According to the Department, by order of March 28, 2008, the Court of Common Pleas of Northumberland County vacated the Decree Nisi. (Response to Demurrer with New Matter ¶ 1.)
On March 24, 2008, Hill filed a Demurrer to the Department's Complaint, and the Department filed a Response to the Demurrer with New Matter on April 8, 2008. In the New Matter, the Department alleged that Hill had "been consistently taking nutrition and hydration since the March 19, 2008 hearing." (Response to Demurrer with New Matter ¶ 12.) The Department further alleged that Hill "was medically assessed and it was determined by medical staff that his health [was] not currently in danger." (Response to Demurrer with New Matter ¶ 13.) Therefore, the Department stated that a hearing on its Complaint was not necessary at that time. The Department requested, however, that based upon Hill's "extensive history of hunger strike [sic] and manipulative behavior," the trial court's "March 20, 2008 Order remain in effect." (Response to Demurrer with New Matter ¶ 15.) The Department further stated that if Hill:
should again partake in a hunger strike, and, after testing, it [was] determined that his health was in danger, the Department [would] file a motion for a hearing requesting permission to supply nutrition and hydration intravenously or otherwise, as [might] be deemed necessary by the Department, to preserve [Hill's] health and life.
(Response to Demurrer with New Matter ¶ 16.) Therefore, the Department requested that the trial court continue the March 20, 2008 order, "or in the alternative, issue a permanent order." (Response to Demurrer with New Matter at 5.)
On April 10, 2008, Hill filed a Counterclaim (First Counterclaim) against: (1) B. Corbin, Deputy Superintendent for Centralized Services; (2) J.D. Fisher, Acting Deputy Superintendant for Facilities Management; (3) J. Keller, Corrections Classification Program Manager; (4) C. Heaton, Hill's Counselor; and (5) D. Kos, Registered Nurse. Hill did not file an application with the trial court to file his First Counterclaim in forma pauperis. Hill alleged that all of the foregoing defendants are employed at SCI-Huntingdon, that each was being sued individually in his or her individual capacity, and that they all acted under the color of state law.
Hill further alleged that, on March 5, 2008, he was released from disciplinary custody to administrative custody by B. Corbin, J.D. Fisher, and J. Keller, who make up the Program Review Committee (PRC). Hill alleged that his transfer to administrative custody violated the Department's administrative directives, that the placement was punitive in nature, and that the PRC used the Department's administrative directives "to circumvent the scope of their authority to arbitrarily and discriminatingly place [Hill] in administrative segregation, with no prospect of release in the near future." (First Counterclaim ¶ 7.)
Hill further alleged that he never received proper notice of his administrative custody placement, in violation of the Department's administrative directives and that the reason given to him for his placement differed from the reason cited on the notice. Hill also alleged, without supporting documentation, that "[o]n March 17, 2008 . . . D. Kos, a registered nurse, ordered [Hill] to be involuntarily admitted into a stripped cell in psychiatric observation with no authority or professional training to do so." (First Counterclaim ¶ 10.)
Section 1(A)(4) of DC-ADM 802, which governs administrative custody, provides that "[w]henever practical, written notice of the reasons for AC placement is given to the inmate prior to placement, but in all cases within 24 hours after placement."
We note that Hill did not attach the notice of his placement in administrative custody to his First Counterclaim.
As relief for the foregoing allegations, Hill demanded "judgment against the defendants for an unspecified amount." (First Counterclaim at 3.)
On April 11, 2008, Hill filed Preliminary Objections to the Department's Complaint. On April 21, 2008, the Department filed Preliminary Objections to Hill's First Counterclaim. On April 30, 2008, Hill filed Preliminary Objections to the Department's Preliminary Objections. By order of May 27, 2008, the trial court overruled Hill's Demurrer, sustained the Department's Preliminary Objections to Hill's First Counterclaim, and ordered the court administrator to scheduled a hearing for the purpose of determining whether the March 20, 2008 order should be made final.
On May 30, 2008, the Department filed a Motion to Vacate Order. Therein, the Department requested that the trial court vacate the March 20, 2008 order because Hill was no longer in imminent danger of irreparable harm and a hearing was, therefore, no longer necessary. By order dated June 9, 2008, and filed June 16, 2008, the trial court vacated the March 20, 2008 order.
On June 11, 2008, Hill filed a response to the Department's original Complaint with Counterclaim (Second Counterclaim). Again, Hill did not file an application with the trial court to file this Second Counterclaim in forma pauperis, and there is no order in the certified record granting Hill in forma pauperis status. This Second Counterclaim answers the Department's Complaint and contains allegations identical to those in the First Counterclaim.
On July 18, 2008, the Department filed a Praecipe for Discontinuance, and the Department's action against Hill was marked discontinued and ended by the prothonotary. On August 12, 2008, the Department filed Preliminary Objections to Hill's Second Counterclaim. The Department argued that Hill's Second Counterclaim failed to state a legally cognizable claim for violation of his due process rights and that Hill was attempting to circumvent the Act commonly known as the Prison Litigation Reform Act (PLRA), 42 Pa.C.S. §§ 6601- 6608.
By order dated September 2, 2008, the trial court entered the following order: "[I]t appearing to the Court that [the Department] has discontinued this action, It is Ordered that the preliminary objections filed by the [Department] to [Hill's] Second Counterclaim are sustained. The Prothonotary shall mark this action closed." (Department of Corrections v. Hill, No. 08-414, filed September 2, 2008 (C.C.P. Huntingdon County).) In an opinion in support of this order, the trial court stated that it "sustained the [Department's] preliminary objections and dismissed this action for two reasons": (1) because the Department discontinued the action on "July 17, 2008," and Hill failed to file a petition to strike off the discontinuance per Pa. R.C.P. No. 229; and (2) because Hill's Counterclaim lacked "any arguable basis in law or in fact and was therefore frivolous." (Trial Ct. Op. at 4.) Thus, the trial court did not address the Department's preliminary objection based on the PLRA.
Although filed July 18, 2008, the Department's Praecipe for Discontinuance was dated July 17, 2008.
By notice of appeal filed September 22, 2008, Hill appealed the trial court's September 2, 2008 order to this Court. Attached thereto is a Verified Statement by Hill wherein Hill states that he was granted leave to proceed in forma pauperis by the trial court on June 9, 2008. The certified record in this matter does not support Hill's statement. There is no order listed on the trial court's docket, or contained with the certified record, wherein the trial court granted Hill in forma pauperis status at any time during the proceedings below. Accordingly, we conclude that Hill was not granted in forma pauperis status by the trial court.
On November 13, 2008, the Department filed its Motion. Therein, the Department requests that this Court revoke Hill's in forma pauperis status in this Court and dismiss his appeal. However, this Court has neither formally granted Hill in forma pauperis status, nor has Hill filed an application to proceed in forma pauperis. As such, we will only address the Motion to the extent that it requests that this Court dismiss Hill's appeal pursuant to the PLRA because Hill is an abusive litigator who currently has at least three strikes.
As support for its assertion that Hill has at least three strikes, the Department has attached to its Motion and to its Brief in this case the orders from previous civil actions involving Hill. The first of these three purported strikes is a May 7, 2007 order by the Court of Common Pleas of Fayette County in Hill v. Burks, No. 933 G.D. 2007 (C.P. Pa. Fayette County, filed May 9, 2007) (Burks I), granting the defendant's motion to dismiss and dismissing Hill's complaint. The Department has also attached a Statement in Lieu of Opinion wherein the common pleas court adopts the reasoning set forth in the defendant's brief and makes the statement that "[t]he Court finds it distressing that so frivolous a lawsuit can still generate so much paper and consume so much time and expense." Burks I, Statement in Lieu of Opinion (filed Aug. 13, 2007).
The second purported strike is an opinion and order by this Court affirming the May 7, 2007 order of the Court of Common Pleas of Fayette County at docket No. 933 of 2007 GD. Hill v. Burks (Pa.Cmwlth., No. 1642 C.D. 2007, filed Feb. 11, 2008) (Burks II). This Court's memorandum opinion in Burks II reveals that the complaint filed by Hill against Sharon Burks, the Chief Grievance Officer of the Department, in the Court of Common Pleas of Fayette County constituted prison conditions litigation. Hill's complaint against Burks was styled as a civil rights action under 42 U.S.C. § 1983 and alleged that a footlocker containing his personal property was vandalized and its contents stolen. Hill alleged that Burks violated his rights during the institutional grievance process by denying him due process before depriving him of his personal property.
The third purported strike is a May 15, 2007 order by this Court in our original jurisdiction sustaining respondent's preliminary objections and dismissing Hill's amended petition for review. Hill v. Beard (Pa.Cmwlth., No. 88 M.D. 2007, filed May 15, 2007). Citing Weaver v. Department of Corrections, 829 A.2d 750 (Pa.Cmwlth. 2003), our order states that this Court has no original jurisdiction over an inmate petition for review after a grievance or misconduct procedure in a case not involving a constitutional right limited by the Department. The order further states that Hill fails to allege facts that would tend to establish a clear right to the relief he requests.
In his Answer in Opposition of Respondent's Motion, Hill argues that this Court's affirmance in Burks II of the decision of the Court of Common Pleas of Fayette County in Burks I should not count as a second strike under Section 6602(f) of the PLRA, 42 Pa. C.S. § 6602(f). We agree. Section 6602(f) provides that a court may dismiss prison conditions litigation when three or more of the prisoner's prior prison conditions civil actions have been dismissed as being frivolous. 42 Pa. C.S. § 6602(f). The Department argues that this Court's affirmance in Burks II should count as a strike, in addition to the trial court's opinion in the case, because the definition of prison conditions litigation found at Section 6601 of the PLRA, 42 Pa. C.S. § 6601, specifically includes appeals. While it is true that Section 6601 defines "prison conditions litigations" as including appeals, Section 6602(f) specifically provides that a court may dismiss subsequent prison conditions litigation when "three or more of these prior civil actions have been dismissed" for being frivolous. 42 Pa. C.S. § 6602(f)(1) (emphasis added). The plain language of the PLRA only allows the dismissal of an appeal for frivolousness to count as a strike, not an affirmance on appeal of a trial court's dismissal on the basis of frivolousness. This is only fair because the trial court's dismissal in the latter scenario already counts as a strike. While this Court deplores the additional burdens placed on the Commonwealth's judiciary by frivolous lawsuits, under the statutory language an inmate is not additionally penalized for seeking review of a trial court's dismissal of that inmate's suit.
While this interpretation comports with the plain language of the PLRA, it is also the approach taken by a number of the United States Circuit Courts of Appeals in interpreting the federal counterpart to, and basis for, Pennsylvania's PLRA, 28 U.S.C. § 1915(g). "If we affirm a district court dismissal [of a case as being frivolous], the district court dismissal then counts as a single strike. (Under the plain language of the statute, only a dismissal may count as [a] strike, not the affirmance of an earlier decision to dismiss.)"Jennings v. Natrona County Detention Center Medical Facility, 175 F.3d 775, 780 (10th Cir. 1999). See also Owens v. Isaac, 487 F.3d 561, 563 (8th Cir. 2007) ("The dismissal of the second case as frivolous . . . counted as a strike, but this court's summary affirmance . . . did not");Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996) ("It is straightforward that affirmance of a district court dismissal as frivolous counts as a single `strike.' . . . Such a disposition merely states that the district court did not err in determining the underlying action was frivolous.") Because Pennsylvania's PLRA was modeled on the federal Prison Litigation Reform Act, Pew v. Mechling, 929 A.2d 1214, 1218 n. 6 (Pa.Cmwlth. 2007), and the language of the federal statute is similar, this Court considers these cases to be relevant and convincing. This Court, therefore, denies the Department's Motion.
Section 1915(g) states:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g).
Turning to the merits of Hill's appeal, we must consider Hill's arguments that the trial court erred in determining that: (1) Hill's Second Counterclaim should be dismissed because Hill failed to strike off the Department's discontinuance pursuant to Rule 229; and (2) Hill's Second Counterclaim failed to state a due process claim. With regard to the first issue, this Court holds that the trial court erred. It is true, as the trial court noted in its opinion, that Hill failed to strike off the Department's discontinuance pursuant to Rule 229. However, as Hill points out, and as the Department acknowledges, Rule 232(a) of the Pennsylvania Rules of Civil Procedure provides that "[a] discontinuance or nonsuit shall not affect the right of the defendant to proceed with a counterclaim theretofore filed." Pa. R.C.P. No. 232(a).
Next we address whether Hill's Second Counterclaim stated a due process claim. The essence of Hill's Second Counterclaim is that the Department transferred him from disciplinary custody to administrative custody in violation of its regulations and without proper notice to Hill. Hill also claims that, on March 17, 2008, an employee of the Department, "D. Kos, a registered nurse, ordered [Hill] to be involuntarily admitted into a stripped cell in psychiatric observation with no authority or professional training to do so." (Second Counterclaim ¶ 35.) Notably, Hill does not seek release from administrative custody or psychiatric observation, but rather "judgment against the defendants for an unspecified amount." (Second Counterclaim at 4.) These allegations do not articulate a claim on which relief may be granted.
Hill's Second Counterclaim fails to articulate a legally cognizable claim that the Department violated Hill's due process rights by placing him in administrative custody, or in psychiatric observation. "[I]t is entirely a matter of the Department's discretion where to house an inmate. Under the Department's regulation, an `inmate does not have a right to be housed in a particular facility or a particular area within a facility.'" Clark v. Beard, 918 A.2d 155, 160 (Pa.Cmwlth. 2007) (quoting 37 Pa. Code § 93.11). In determining whether an inmate has:
asserted a protected liberty interest, we begin by noting that matters of prison management are uniquely the province of the executive and legislative branches of government. . . . The courts of this Commonwealth and the federal courts have consistently held that prison officials have the authority to determine where a prisoner should be housed and that principles of due process impose few restrictions on the use of that authority.
Id. at 161 (citations omitted). Further, state statutes and regulations create only limited liberty interests for inmates regarding the degree of confinement in which they are held:
. . . States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force . . . nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.
Sandin v. Conner, 515 U.S. 472, 483-84 (1995) (citations omitted) (emphasis added). In other words, in order to show that the Department, through its regulations, created a liberty interest in being free from administrative custody, Hill would have to allege facts that would show that administrative custody imposes on him atypical and significant hardship in relation to the ordinary incidents of prison life.
In Clark, this Court considered the cases of death row inmates whose death sentences had been vacated, but who were still being held in Capital Case Units of this Commonwealth's State Correctional Institutions. In determining that the inmates, in Clark, failed to plead sufficient facts to show that they had a liberty interest in being confined under some other conditions, this Court stated that the inmates':
complaint describes the conditions in the Capital Case Unit, but it is devoid of any baseline against which to measure those conditions and determine whether they pose an "atypical and significant hardship." For example, Appellants do not describe any of the conditions in the general population that they presumably believe are less restrictive. Nor do Appellants aver that the conditions of confinement in the Capital Case Unit are any more restrictive than other types of segregated housing at SCI-Greene or SCI-Graterford. In short, a fair reading of Appellants' complaint does not indicate how confinement in the Capital Case Unit imposes atypical and significant hardships on Appellants in relation to the ordinary incidents of prison life.
Clark, 918 A.2d at 162-63. Similarly, in this case, Hill has failed to allege facts regarding administrative custody that would show that administrative custody imposes atypical and significant hardships on him as compared to whatever custody he believes he should be held in. Likewise, Hill fails to allege facts regarding his confinement for psychiatric observation that would show that such confinement imposes atypical and significant hardships on him as compared to some other custody. Therefore, Hill fails to allege a liberty interest that the Department and its employees have deprived him of in violation of his rights to due process.
While Hill does discuss the conditions of administrative custody in his Brief, these factual allegations do not appear in his Second Counterclaim. Nor does Hill allege in his Second Counterclaim that he is subject to atypical and substantial hardships in administrative confinement as compared to the conditions of ordinary prison life.
In arguing that his Second Counterclaim does, in fact, state a valid claim, Hill relies upon Vitek v. Jones, 445 U.S. 480 (1979), and Shoats v. Horn, 213 F.3d 140 (W.D. Pa. 2000). These cases are distinguishable from the case at bar. In Vitek, the United States Supreme Court held that an inmate had a protected liberty interest against being involuntarily transferred from a penitentiary to a state mental hospital without the due process protections of notice and an adversarial hearing. Vitek, 445 U.S. at 490. Hill's attempts to analogize the facts of Vitek to his allegations in the current case are unavailing. In Vitek, the inmate was involuntarily transferred to a state mental hospital, not merely administrative custody or psychiatric observation. We, therefore, hold Vitek to be inapposite.
Hill also relies upon Hewitt v. Helms, 459 U.S. 460 (1983). The Supreme Court discussed Hewitt extensively in Sandin, and although the Court did not explicitly overrule Hewitt, it largely abandoned the methodology set forth in Hewitt. Sandin, 515 U.S. at 479-84 n. 5.
In Shoats, the District Court for the Western District of Pennsylvania held that a Pennsylvania inmate who was continuously held by the Department in administrative custody for seven years had a liberty interest in being released from administrative custody, but that the Department's procedures for keeping the inmate in administrative custody, which included a review every 30 days, comported with the requirements of due process. In doing so, the court considered not only whether administrative custody presented atypical and substantial hardship on the inmate as compared to typical confinement, but also "the amount of time the prisoner was placed into disciplinary segregation."Shoats, 213 F.3d at 144. Just as his Second Counterclaim failed to allege that Hill was subject to atypical and substantial hardship in administrative custody, Hill has also failed to allege that he has been detained in administrative custody for any unusual length of time. Therefore, Shoats, like Vitek, is not applicable to the case at bar.
We, therefore, hold that the trial court did not err in dismissing Hill's Second Counterclaim.
Senior Judge Kelley dissents.
ORDER
NOW, July 17, 2009, the order of the Court of Common Pleas of Huntingdon County is hereby AFFIRMED and the Department of Corrections' Motion to Revoke Appellant's IFP is hereby DENIED.