Opinion
No. 633 M.D. 2012
12-04-2013
Ronald Gibson, Petitioner v. Brian Thompson Superintendent - SCI Mercer and Brian Covert Warden of Lawrence County Correction, Respondents
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Before this Court are the preliminary objections of Brian Thompson, the Superintendent of State Correctional Institution at Mercer (SCI-Mercer) to an amended petition for review filed by Ronald Gibson, proceeding pro se, in this Court's original jurisdiction. In his action, Gibson challenges his transfer from the SCI-Mercer to the Lawrence County Jail.
Petitioner is serving seven and one half years to thirty years for the crimes of making terroristic threats and stalking. Gibson was initially housed at the SCI-Greensburg, but was transferred to SCI-Mercer. On August 16, 2012, Gibson reported that correction officer Harry Clark made racially offensive remarks. Gibson alleges that Officer Clark said "I didn't know black guys chewed [tobacco]." Exhibit G to the Amended Petition for Review. Gibson was also offended by Officer Clark addressing him as "dude." Exhibit B to the Amended Petition for Review.
On August 23, 2012, Petitioner was transferred to the Lawrence County Jail for temporary housing. While at the Lawrence County Jail, Gibson was placed in suicide isolation for three days. He asserts that he refused to take his blood pressure medication and that the medical staff did not follow the facility's protocol upon his refusal of medication. Gibson was transferred back to SCI-Mercer on August 28, 2012, for medical evaluation. He was transferred back to the Lawrence County Jail on September 4, 2012. On September 7, 2012, Gibson was returned to SCI-Mercer for failure to comply with the policies and procedures of the Lawrence County Jail. Exhibit D to the Amended Petition for Review. Gibson refused to obey an order and violated Section III.C of the Inmate Handbook. Id. He was placed in the restricted housing unit (RHU) under administrative custody pending an investigation of his rule violation while housed at the Lawrence County Jail. Id. On September 19, 2012, Gibson filed a grievance requesting a separation from staff. Exhibit H to the Amended Petition for Review. Gibson asserts that SCI-Mercer failed to deliver mail to him in a timely manner in retaliation for filing a complaint against Officer Clark and that he was improperly placed in administrative custody. On October 5, 2012, Gibson was written up by RHU staff for refusing to obey an order. Exhibit I to the Amended Petition for Review. Specifically, he refused to pack his belongings in preparation for transfer to the Lawrence County Jail. Id. On October 25, 2012, Gibson was written up again for failure to obey an order to prepare for transfer to the Lawrence County Jail. Exhibit J to the Amended Petition for Review. At this time, he was informed that the security investigation concerning his safety at the Lawrence County Jail was complete and deemed unsubstantiated. Id.
Gibson argues that Pennsylvania law requires that he serve his term of confinement in a state correctional institution and that Thompson illegally transferred him to the Lawrence County Jail. Gibson also argues that he was transferred in violation of the Eighth Amendment to the United States Constitution in retaliation for a complaint he made against a corrections officer at SCI-Mercer. Gibson asserts that his Fourteenth Amendment right to due process was violated by Lawrence County Jail medical staff in failing to follow protocol. Gibson further asserts that the Department of Corrections (Department) improperly placed behavioral citations on his inmate record as a result of his refusal to accept a transfer to the Lawrence County Jail.
Gibson requests that this Court enter judgment against Thompson and commit him to a Department facility. Gibson also seeks an order directing Thompson to remove all behavioral citations from his formal records and to remove any notation of time spent in the RHU from his formal records. Finally, Gibson asks the Court to order Thompson to return him to status level 2 and to order that the change in status levels not be considered when he is eligible for parole.
Thompson filed preliminary objections to the amended petition for review asserting that this Court lacked jurisdiction of the matter because the named respondents are not statewide officers. Thompson also argues that Pennsylvania law allows the transfer of an inmate from a state correctional institution to a county facility. Thompson asserts that Gibson has failed to sufficiently state a claim for retaliation and that this Court does not have jurisdiction over internal prison misconduct proceedings.
Thompson contends that this Court lacks original jurisdiction over this matter because the amended petition for review does not name either the Commonwealth of Pennsylvania or a state-wide officer as a respondent. Relying upon Mickens v. Jeffes, 453 A.2d 1092 (Pa. Cmwlth. 1983), Thompson argues that a superintendent of the Department is not a state-wide officer for purposes of this Court's original jurisdiction.
Section 761(a)(1) of the Judicial Code, 42 Pa. C.S. § 761(a)(1), provides, in relevant part, that this Court "shall have original jurisdiction of all civil actions or proceedings...(1) Against the Commonwealth government, including any officer thereof, acting in his official capacity." The Amended Petition does not name the Commonwealth or a Commonwealth agency (such as the Department), as a respondent. Commonwealth "officers," over whom this Court would have original jurisdiction, are "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." Balshy v. Rank, 507 Pa. 384, 389, 490 A.2d 415, 417 (1985) [quoting Opie v. Glasgow, Inc., 375 A.2d 396, 398 (Pa. Cmwlth. 1977)].
In Mickens, this Court held that while the warden and records officer at the SCI-Dallas were state employees who performed policymaking functions, those functions were not state-wide in character, but rather were confined geographically. 453 A.2d at 1093. We concluded that this Court lacked original jurisdiction over the warden and the records officer. Id. The same is true here. The policymaking functions exercised by Thompson, as superintendent of SCI- Mercer are not state-wide. Therefore, as in Mickens, this Court lacks original jurisdiction over Respondents in this matter.
Brian Covert, the warden of the Lawrence County Jail, is also named as a respondent. An attorney representing Covert has not filed an entry of appearance and no filings have been made on his behalf. We note that we do not have original jurisdiction over any action against Covert as he is a county employee and not an officer of the Commonwealth. City of Pittsburgh v. Silver, 50 A.3d 296, 299 n. 9 (Pa. Cmwlth. 2012) (stating that subject matter jurisdiction may be raised by the court sua sponte). --------
Accordingly, pursuant to Section 5103 of the Judicial Code, 42 Pa. C.S. § 5103, the Chief Clerk is ordered to transfer the above-captioned matter to the Court of Common Pleas of Mercer County.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 4th day of December, 2013, the Chief Clerk is hereby ordered to TRANSFER the above-captioned matter to the Court of Common Pleas of Mercer County.
Jurisdiction relinquished.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge