Garcia v. Moore-Smeal

Full title: Miguel Jose Garcia, Petitioner v. Shirley Moore-Smeal (D.O.C. Secretary)…

Court: COMMONWEALTH COURT OF PENNSYLVANIA

Date published: Mar 7, 2012

No. 110 M.D. 2011 (Pa. Cmmw. Ct. Mar. 7, 2012)

Opinion

No. 110 M.D. 2011

03-07-2012

Miguel Jose Garcia, Petitioner v. Shirley Moore-Smeal (D.O.C. Secretary), David W. Pitkins (Superintendent), Daniel Burns (Acting Superintendent), Elizabeth Nightingale (Grievance Coord.), Tim Riskus (Major of Guard), Eugene Santorella (Property SGT.) and Pennsylvania Department of Corrections, Respondents

MEMORANDUM OPINION BY JUDGE SIMPSON

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON

Miguel Jose Garcia (Petitioner), an inmate at the State Correctional Institution at Laurel Highlands (SCI-Laurel Highlands) filed a petition for review in this Court's original jurisdiction, seeking mandamus and other relief. He asserts the Department of Corrections (DOC), its Secretary, and certain employees deprived him of personal property in violation of departmental policy, DOC's Code of Ethics and his constitutional rights. DOC filed preliminary objections challenging both this Court's jurisdiction and the legal sufficiency of Petitioner's petition. Upon review, we overrule DOC's preliminary objection as to jurisdiction, but we sustain the preliminary objection as to legal sufficiency.

Background

The events giving rise to this dispute are related to the nationwide change from analog to digital television broadcasting in 2009. When Petitioner was transferred from another correctional institution shortly after the change, Respondent Santorella, a corrections officer employed as a property sergeant at SCI-Laurel Highlands, confiscated Petitioner's analog television antenna. Petitioner advised DOC's Central Office that his antenna was confiscated. The Central Office responded that Petitioner should contact Respondent Major Riskus regarding return of the antenna. Although another corrections officer questioned Petitioner about the antenna and advised Petitioner he would review the relevant policy, Petitioner's antenna was not returned.

Petitioner filed a grievance regarding confiscation of his antenna, and he also directed correspondence to Respondent Secretary Moore-Smeal regarding the antenna. The Central Office then advised Petitioner that because he already filed a grievance, no further response would be issued. Petitioner's grievance was subsequently denied. According to Petitioner, the grievance was denied in part because the item was a power antenna which is not permitted at SCI-Laurel Highlands and which is different from an analog antenna because it uses electric current to boost reception.

Petitioner then appealed to the Superintendent of SCI-Laurel Highlands, Respondent Pitkins, and to DOC's Central Office. These appeals were also denied.

Petitioner seeks mandamus and extraordinary relief to compel DOC to return his antenna or credit his inmate account in the amount of $50.00. Petitioner also seeks $1,000 from each named Respondent.

In support of his right to the power antenna, Petitioner relies on a DOC policy regarding permissible property, DC-ADM 815, which provides in pertinent part:

4. Exceptions

a. An inmate will be permitted to keep no-longer-permitted items, with the exception of civilian clothing items, as long as the item(s) were noted on the inmate's DC-153, Personal Property Inventory ....


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c. Effective August 1, 2009, all analog televisions (and the television's antenna) that are not operable due to not being connected to cable television or connected to a converter box, must be shipped to a person designated by the inmate ... or destroyed (even if the item is listed on the inmate's DC-153) ....

DC-ADM 815 (Policy) (emphasis added). An inmate is permitted to keep an item falling within the exception upon transfer as long as the item is noted on the inmate's DC-153, Personal Property Inventory. Petitioner alleges that the item was noted on his DC-153 form. Petitioner also avers that he owns an analog television and a converter box to which the television and power antenna were connected, rendering the television and antenna functional.

DOC filed preliminary objections and a supporting brief which are now before the Court for disposition.¹ DOC challenges jurisdiction and also asserts Petitioner fails to state a legally cognizable claim. DOC claims this Court lacks subject matter jurisdiction because certain Respondents are institutional staff and not state-wide officers. DOC also asserts confiscation of Petitioner's antenna does not constitute a constitutional violation as he had an adequate post-deprivation remedy in the form of the grievance procedure. As to monetary damages, DOC asserts that such damages are not available for an alleged violation of the state constitution, and that a federal claim for such damages in a civil rights action is not properly before this Court.

1 DOC also filed a motion to dismiss under 42 Pa. C.S. §6602(f), asserting Petitioner's history as an abusive litigator. By per curiam order, this Court denied the motion without prejudice.

Discussion

In reviewing preliminary objections in the nature of a demurrer, we must accept as true all well-pled factual allegations and all inferences fairly deducible from those allegations. Weaver v. Dep't of Corr., 829 A.2d 750 (Pa. Cmwlth. 2003). We may sustain a demurrer only in cases that are "clear and free from doubt and only where it appears with certainty that the law permits no recovery under the allegations pleaded." Danysh v. Dep't of Corr., 845 A.2d 260, 263 (Pa. Cmwlth. 2004).

Jurisdiction

This Court must have jurisdiction over the parties as well as the subject of the dispute. 42 Pa. C.S. §761. Petitioner named DOC itself, DOC's Secretary, and employees of SCI-Laurel Highlands. Here, DOC contends this Court lacks jurisdiction over the named DOC individuals.

Section 761 of the Judicial Code, 42 Pa. C.S. §761, confers upon this Court jurisdiction over actions "[a]gainst the Commonwealth government, including any officer thereof." The term "officer" for jurisdictional purposes includes "only those persons who perform state-wide policymaking functions and who are charged with the responsibility for independent initiation of administrative policy regarding some sovereign function of state government." Mickens v. Jeffes, 453 A.2d 1092, 1093 (Pa. Cmwlth. 1983) (quoting Opie v. Glascow, Inc., 375 A.2d 396, 398 (Pa. Cmwlth. 1977)). The policymaking functions must be state-wide in character. Id.

DOC advises that Respondents Pitkins, Burns, Nightengale, Riskus and Santorella are not state-wide officers. Institutional employees at state correctional institutions are not Commonwealth officers for purposes of this Court's jurisdiction. Miles v. Beard, 847 A.2d 161 (Pa. Cmwlth. 2004). We agree that the Respondent employees who work at SCI-Laurel Highlands are not "officers" who fall within the definition.

Nevertheless, the Secretary of DOC is an "officer" for jurisdictional purposes. However, relying on Miles, DOC contends that the Secretary is not indispensable to the action given Petitioner's claims.

A Commonwealth agency or person is only an indispensable party as required to confer original jurisdiction on this Court if the action cannot conceivably be concluded with meaningful relief without the sovereign state becoming directly involved. Our Supreme Court has stated that to determine whether a party is indispensable it is necessary to consider: (1) whether the party has an interest related to the claim; (2) if so, the nature of that interest; (3) whether the interest is essential to the merits of the issue; and, (4) whether justice can be afforded without violating the due process rights of the party. Cry, Inc. v. Mill Serv., Inc., 536 Pa. 462, 640 A.2d 372 (1994). Naming the Commonwealth or a state-wide officer "against whom no relief is sought ... will not vest this Court with original jurisdiction." Miles, 847 A.2d at 164.

DOC contends that Petitioner failed to allege that a state-wide policy is implicated in the relief sought. DOC therefore asserts that Petitioner seeks no relief against the Secretary or DOC. After carefully reviewing the petition, we disagree.

DOC contends that Petitioner includes only one allegation regarding the Secretary, in that he sent correspondence about his claim. However, Petitioner's averments are broader. He alleges:

that the Respondents have intentionally violate [sic] the constitutional rights of the Petitioner, by the illegal

confiscation of approved personal property; intentionally violated Respondent's [sic] own policy; and intentionally violated the Department of Corrections Code of Ethics Policy, Section B No. 7[,] Theft of Inmate Property and Section B No. 22 False, Inaccurate or Improper Information Placed on Government Documents (by placing false or inaccurate statements/information on grievance responses); and initiating and condoning a flawed and inadequate institutional grievance procedure.

Pet. for Review, ¶28. Thus, Petitioner challenges the grievance process itself and accuses DOC officials of theft in confiscating property he is permitted to possess. Petitioner seeks enforcement of the DOC Policy and Code of Ethics, which are state-wide policies. He names the Secretary, a state-wide policymaker. The Secretary has an interest in having DOC's policies followed by DOC employees. That interest should be represented in this case to afford DOC due process. Thus, we overrule DOC's preliminary objection to our jurisdiction on this basis.

Demurrer

Petitioner seeks an order by this Court directing DOC to return his antenna, or in the event of its loss or destruction, to credit his account for $50.00. He also seeks monetary damages.

The issuance of a writ of mandamus is an extraordinary remedy designed to compel the performance of a ministerial act or mandatory duty of a state actor. Detar v. Beard, 898 A.2d 26 (Pa. Cmwlth. 2006); Saunders v. Dep't of Corr., 749 A.2d 553 (Pa. Cmwlth. 2000). This Court may only issue a writ of mandamus where: (1) the petitioner possesses a clear legal right to enforce performance of a ministerial act or mandatory duty; (2) the defendant possesses a corresponding duty to perform the act; and, (3) the petitioner possesses no other adequate remedy. Detar. Mandamus is only proper to enforce those rights which have already been established. Wassel v. Pennsylvania Bd. of Prob. & Parole, 658 A.2d 466 (Pa. Cmwlth. 1995).

Petitioner contends he has a clear right to possess his power antenna, and that the confiscation of his antenna deprived him of his constitutional right to property. He bases his claim in part upon his possession of the antenna in conformity with the DOC Policy at other correctional institutions prior to his transfer to SCI-Laurel Highlands. We note, however, that the possession of the antenna at other correctional institutions pre-dated the 2009 nationwide change in television broadcasting.

Nevertheless, accepting the averments of fact as true, Petitioner purchased his analog antenna through an approved vendor, his possession was recorded on his DC-153, and the antenna transferred with him through three other correctional institutions. Petitioner owns an analog television, which was connected to a converter box. Petitioner's analog television does not have reception without the antenna. Respondent Santorella confiscated the antenna upon his 2010 transfer to SCI-Laurel Highlands.

There are two reasons why a demurrer must be sustained. First, Petitioner fails to state a claim for relief in mandamus. In an action for mandamus involving an agency's exercise of discretion, we may direct the agency to make a decision; however, we may not direct the agency to exercise its judgment or discretion in a particular way, or direct the retraction or reversal of action already taken. Nickson v. Pennsylvania Bd. of Prob. & Parole, 880 A.2d 21 (Pa. Cmwlth. 2005).

Here, Petitioner seeks the retraction or reversal of discretionary action already taken. However, mandamus does not lie for such relief. Id.

Also, Petitioner fails to establish any clear right to currently possess the antenna based on DOC's policies. See Weaver. Focusing not on the language of the regulation but on the nature of the deprivation, we emphasize that Petitioner does not allege, nor can he allege, lack of the antenna imposes an atypical and significant hardship in relation to the ordinary incidents of prison life. Id. Restrictions on the contents of a cell are included among the ordinary incidents of prison life. Id.

Moreover, regardless of any license to possess the antenna, Petitioner fails to establish a clear, existing ministerial duty in DOC to return the antenna at this time. Significantly, the Policy does not express a mandatory duty to return any inmate property seized while confinement is ongoing. Given that prison officials are given a wide range of discretion in the promulgation and enforcement of rules to govern the prison community in order to maintain security, order and discipline, Maute v. Frank, 670 A.2d 737 (Pa. Cmwlth. 1996), this is not surprising. In short, Petitioner does not identify a clear duty that may be characterized as "ministerial." South End Enterprises, Inc. v. City of York, 913 A.2d 354, 359 (Pa. Cmwlth. 2006) (defining ministerial as "an act that an officer is required to perform upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed.").

As to the second reason why a demurrer must be sustained, dismissal is required because an adequate remedy at law exists. In particular, Petitioner may pursue an action against certain "persons" under 42 U.S.C. §1983 for federal constitutional violations alleged. See Maute, 670 A.2d at 741 ("Because at the very least, his action is cognizable in a §1983 action, there is an adequate remedy at law and his mandamus action must fail.").

Based on the foregoing, we sustain DOC's preliminary objection to the legal sufficiency of Petitioner's claims.² As such, we dismiss Petitioner's petition for review with prejudice.

2 As Petitioner seeks both equitable and monetary relief based on his mandamus theory, for which he is not entitled to recover, we do not need to address Petitioner's claim for monetary damages. --------

/s/_________

ROBERT SIMPSON, Judge ORDER

AND NOW, this 7^th day of March, 2012, the Department of Correction's preliminary objection as to jurisdiction is OVERRULED, its preliminary objection in the nature of a demurrer is SUSTAINED, and the Petition for Review is DISMISSED WITH PREJUDICE.

/s/_________

ROBERT SIMPSON, Judge