Opinion
No. 2376 C.D. 2010
07-22-2011
Mr. Darrell Goodley, Appellant v. Louis Folino, Supt., Steven P. Durco, Lieutenant: C.O. Chesmer: C.O. Welcher, : and C.O. Schnider
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE PELLEGRINI
Darrell Goodley (Goodley) appeals from an order of the Greene County Court of Common Pleas (trial court) granting the preliminary objections in the nature of a demurrer filed by Louis Folino, Superintendent of the State Correctional Institution at Greene (SCI-Greene); Steven P. Durco, Lieutenant of the Restricted Housing Unit at SCI-Greene; Kristen Reisinger, Department of Corrections' Chief Grievance Officer at Department's Office of Final Appeals and Grievances; and SCI-Greene Corrections Officers Chesmer, Welcher and Schnider (collectively, Appellees) and dismissing Goodley's five-count complaint alleging, inter alia, that Appellees intentionally and maliciously confiscated his property and that he was subject to retaliatory treatment after he filed a grievance. For the reasons that follow, we affirm insofar as the trial court dismissed the state law claims but the Section 1983 claims are remanded to the trial court to issue an order directing Goodley to file an amended complaint within 20 days repleading the Section 1983 claims only.
Goodley, an inmate at SCI-Greene, filed a five-count complaint against all of the Appellees on September 10, 2009, alleging that Corrections Officers Chesmer, Welcher and Schnider conducted an inventory search of his stored personal property in the restricted housing unit property room on June 10, 2007. At that time, they seized and confiscated items of his that they alleged comprised excess property that was contraband, illegal and excessive, including his legal documents. Goodley filed a grievance with Lieutenant Durco alleging that the three corrections officers violated the Department of Corrections' Policy DC-ADM 815-02 as it related to personal property, and that they intentionally and maliciously confiscated over half of his property because it would not fit into the containers from which it had been removed. Lieutenant Durco denied the grievance, and Goodley filed an appeal of his grievance denial to Superintendant Folino who upheld the grievance denial and refused to return his property. Goodley appealed that denial for final review to Chief Grievance Officer Reisinger who upheld the grievance denial. Goodley alleged in the factual portion of his complaint that as a result of his grievance, he has been subject to due process violations, violations under Art. IV, Sec. 1 of the United States Constitution's Full Faith and Credit Clause, retaliatory treatment, harassment, additional property loss and confiscation, and cruel and unusual punishment in the restricted housing unit under the control of Appellees due to a lawsuit he filed against the Department of Corrections' Food Service as a result of a burn he suffered on the job. His five counts consist of the following:
• Count I - Negligence, Trespass
Appellees acted in a reckless and wanton disregard for Goodley's interests in failing and refusing to exercise ordinary skill and knowledge in their processing of his property and legal belongings. As a result, he has suffered wrongful confinement in the restricted housing unit, disparagement of his name, damage to his earnings capacity and employability, erroneous misconduct convictions, etc.
• Count II - Breach of Contract, Assumpsit
Appellees did not discharge their duty to store Goodley's property with reasonable care, skill and diligence possessed and exercised by Correctional employees in the field of corrections training in that Goodley was negligently advised and coerced in the taking of his property at inventory. Appellees breached their contract with Goodley after securing property they confiscated, failed to return the property rightfully possessed to Goodley to which he is entitled.
• Count III - Conversion
Corrections Officers Chesmer, Welcher and Schnider converted the property of Goodley to their own personal use as well as provided items to other Department of Corrections' employees. The other Appellees acted in concert in supporting the conduct of the Correctional Officers in providing falsified responses covering these Officers' acts in handling of Goodley's legal and personal property. At all times relevant knowing their responses were contrary to the truth of other State records in Goodley's possession.
• Count IV - Civil Conspiracy
Appellees jointly and severally conspired with one or more individuals in their attempt to have Goodley suffer grievous loss of his property; to ignore evidence of the Department of Corrections' employees wrong-doing; to dispossess Goodley of his wrongfully taken property and to conceal and destroy whatever of Goodley's property they chose.
• Count V - Punitive Damages
Appellees' conduct was grossly negligent, intentional, reckless, wanton, willful and malicious and so egregious and outrageous as to entitle Goodley to punitive damages.
Goodley sought a jury trial on the issues presented, compensation and punitive damages in excess of $383,000 and/or property returned "or compensated $3,000 and costs of suit and transferred from the facility he was at." (Complaint at 12.) Goodley failed to effectuate proper sheriff's service on Reisinger and Chesmer and on the Pennsylvania Office of the Attorney General.
Appellees filed preliminary objections in the nature of a demurrer alleging that on the face of Goodley's complaint, the law could not permit recovery against them because pursuant to Pa. R.C.P. No. 400-402, they were immune from Goodley's claims under the doctrine of sovereign immunity as none of his claims against them fell within any of the enumerated exceptions to sovereign immunity. Rather, all of Goodley's claims were for alleged intentional torts.
Goodley filed objections to Appellees' preliminary objections raising the following arguments in response:
• Goodley had difficulty serving the Attorney General but was doing so within the next 30 days;
• Goodley made service upon Reisinger; even though the Attorney General objected to the service as improper, Reisinger did not return the complaint;
• Goodley withdraws Corrections Officer Chesmer from the complaint due to the cost of service;
• Appellees are not entitled to sovereign immunity because their conduct falls within the exception found under 42 Pa. C.S. §8522(b)(3) - care, custody or control of personal property.
• Appellees are being sued in their personal capacity as well as their official capacity which negates and removes the immunity barrier.
• Goodley has stated facts establishing cruel and unusual punishment in violation of State and Federal Constitutions.
• Goodley has been made to suffer denial of access to the Courts in his criminal case which sounds in 42 U.S.C. §1983 in this State Court proceeding. A violation of rights secured under the 6th and 14th Amendments of the United States Constitution.
• Money damages are available to Goodley because the Appellees are being sued in their individual capacity. Such money is available under 42 U.S.C. §1983.
In its Rule 1925 Statement, the trial court first explained that the facts alleged by Goodley in respect to cruel and unusual punishment did not support an Eighth Amendment violation because they were not so bad as to shock the conscience of reasonably civilized people. Additionally, the claim regarding the Full Faith and Credit Clause was inappropriate and dismissed outright. As to Goodley's specific causes of action, they did not fall into any of the exceptions to sovereign immunity contained in 42 Pa. C.S. §8522. "Though [Goodley] characterizes one cause of action as negligence, the Court found that the facts alleged propose the occurrence of intentional, not negligent acts. In addition, the claims against [Appellees] Reisinger and Chesmer must be dismissed for lack of proper notice." (Trial court's November 16, 2010 decision at 4.) Because the Prison Litigation Reform Act, 42 Pa. C.S. §6602(e)(2), authorized the trial court to dismiss the litigation upon the determination that the litigation failed to state a claim upon which relief could be granted or the Appellees were entitled to assert a valid affirmative defense, including immunity, which if asserted, would preclude the requested relief, and Appellees asserted the affirmative defenses of lack of notice and sovereign immunity, the trial court granted Appellees' demurrer and dismissed the litigation. This appeal by Goodley followed.
In an appeal from a trial court order sustaining preliminary objections and dismissing a complaint, our scope of review is limited to determining whether an error of law was committed or an abuse of discretion occurred. Muncy Creek Township Citizens Committee v. Shipman, 573 A.2d 662 (Pa. Cmwlth. 1990). In order to sustain the preliminary objections, it must appear with certainty that the law will not permit recovery, and where any doubt exists as to whether the preliminary objections should be sustained, that doubt should be resolved by a refusal to sustain them. Id. Further, preliminary objections challenging the sufficiency of a pleading admit all well-pled facts and reasonable inferences deduced therefrom. Id.
Goodley argues that the trial court erred by determining that Appellees were entitled to sovereign immunity and the intertwined issue that the trial court erred by failing to address his objections to Appellees' preliminary objections dealing with his purported Section 1983 claims.
Regarding the state law claims dismissed under sovereign immunity, Goodley argues that the trial court had to know that the Appellees were not entitled to sovereign immunity due to their conduct falling within 42 Pa. C.S. §8522(b)(3) - the care, custody or control of personal property - because the conduct of the corrections officers amounted to willful misconduct and negligence in the handling of his legal and personal property. He relies on Williams v. Stickman, 917 A.2d 915 (Pa. Cmwlth. 2007), for the proposition that negligence and assumpsit are available and state employees may not raise sovereign immunity as a defense.
The facts in Williams are different than those alleged in Goodley's complaint. In Williams, the inmate alleged that corrections officers and the Department of Corrections with malice and wantonness damaged his television set and refused to reimburse him. He alleged, inter alia, trespass, intentional tort and negligence. Under the intentional tort count, we held the complaint was barred by sovereign immunity because "when an employee of a Commonwealth agency was acting within the scope of his or her duties, the Commonwealth employee is protected by sovereign immunity from the imposition of liability for intentional tort claims." 917 A.2d at 917. However, under Count 3 - Negligence, citing 42 Pa. C.S. §8422(b)(3), we found that the inmate was entitled to a remedy because the prison officials negligently handled his personal property. "Section 8522(b)(3) of the act known as the Sovereign Immunity Act states that 'the defense of sovereign immunity shall not be raised to claims for damages caused by ... [t]he care, custody or control of personal property in the possession or control of Commonwealth parties, including ... property of persons held by a Commonwealth agency...." 917 A.2d at 918. Because the inmate set forth a claim for damages to his television set caused by the care of the television set while it was in the possession of Commonwealth parties, he was entitled to a remedy. 917 A.2d at 918. In his complaint, Goodley did not raise claims that the corrections officers had damaged his personal property. Rather, he alleged that they had intentionally and deliberately seized and confiscated his property as contraband, conduct that does not fall within the personal property exception. Consequently, Williams does not apply.
Goodley also argues that the trial court erred by not addressing his preliminary objection to Appellees' preliminary objections in the nature of a demurrer in which he contends that his complaint made out a claim under 42 U.S.C. §1983 because sovereign immunity is not a defense to civil rights claims. We agree that sovereign immunity does not preclude bringing a Section 1983 action because a "state sovereign immunity analysis has no place in Section 1983 actions." Owens v. Shannon, 808 A.2d 607, 610 (Pa. Cmwlth. 2002).
In his complaint, Goodley did not specifically mention that he was bringing a Section 1983 action and each of his counts are state law claims labeled trespass, conversion and civil conspiracy. Pennsylvania, however, is a fact pleading state rather than a notice pleading jurisdiction where "courts are presumed to know the law, and plaintiffs need only plead facts constituting the cause of action, and the courts will take judicial notice of the statute involved." Heinly v. Commonwealth, 621 A.2d 1212, 1215 n. 5 (Pa. Cmwlth. 1993). "The plaintiff is not required to specify the legal theory ... underlying the complaint." Schnupp v. Port Authority of Allegheny County, 710 A.2d 1235, 1239 (Pa. Cmwlth.1998). If there are sufficient facts that make out a Section 1983 claim, the action could be maintained if there were sufficient facts alleged.
In paragraphs 32 through 33 of his complaint, Goodley alleged:
There are two paragraph 32s in Goodley's complaint.
32. The Plaintiff was subjected to what can only be characterized as barbaric, cruel and unusual punishment in the RHU confinement under the control of the defendants in that:(See Complaint in original record.)
A. Subjection to constant illumination in cell 24 hours a day. Affecting him mentally, physically and emotionally in that loss of sleep, appetite, inability to concentrate, constant fatigue.
B. The loss of liberty in being in general population.
C. Loss of contact visits with family and friends.
D. Loss of regular phone use.
E. Loss of educational programming that could have been taken.
F. Loss of employment in the dietary.
All due to Correctional staff retaliating against Plaintiff for having sued the Department of Corrections food Service Department for burn suffered on the job. Which Correctional Officers Chesmer, Wiltcher, Schneider [sic] took umbrage upon Plaintiff and his property at property inventory June 10, 2007.
32. Plaintiff has been subjected to denial of access [sic] the Courts by the willful malicious & egregious confiscation and/or destruction of legal work and court records contained in two large plastic carry cases. See Exhibit C for contents-itemized needed for appeal of criminal conviction.
33. Plaintiff has been denied due process by the confiscation and/or destruction of legal documents and records by defendants. Plaintiff cannot appeal without records arbitrarily taken, withheld and/or destroyed.
Additionally, later in his preliminary objections to Appellees' preliminary objections and in his 1925(b) objections, Goodley specifically alleges that the cause of action is being brought under Section 1983, thereby placing the Appellees on notice that he was bringing such a claim.
"[A] party has the right to file preliminary objections raising any appropriate defenses or objections which that party might have to an adverse party's preliminary objections. Pa. R.C.P. No. 1028(a). The proper method for challenging the propriety of a preliminary objection is by a preliminary objection to a preliminary objection." Chester Upland School District v. Yesavage, 653 A.2d 1319, 1324 n.8 (Pa. Cmwlth. 1994). Goodley's preliminary objections to preliminary objections do not go to the propriety of the Appellees' preliminary objection, e.g., raising an affirmative defense in preliminary objections when it has to be raised in new matter, but instead, improperly flesh out arguments raised in his complaint.
Apparently acknowledging that he did make out a Section 1983 claim, Appellees claim that none of these allegations contains the requisite specificity for a Section 1983 action. While Goodley alleges that he was subjected to cruel and unusual punishment based on him suing the Department of Corrections' Food Service for a burn that he suffered on the job, there is no information showing that the corrections officers were aware of his lawsuit against the Department of Corrections' Food Service or took the action they did because of the lawsuit. Goodley does not even identify the lawsuit by the date it was filed, the court it was filed in or any other pertinent information. There is no information connecting the Appellees and their alleged conduct to his lawsuit. Because Goodley failed to provide any facts that would prove a connection between his lawsuit and their conduct, the Commonwealth argues that his Section 1983 action must fail for lack of specificity.
While the Appellees' arguments have merit, the only substantive preliminary objection that they raised is that sovereign immunity bars Goodley's claim. Because specificity of the pleading was not raised in the preliminary objections and sovereign immunity does not bar Section 1983 actions, we cannot reach whether the Section 1983 claims should be dismissed.
Accordingly, the trial court is affirmed insofar as it dismissed the state law claims, but the Section 1983 claims are remanded to the trial court to issue an order directing Goodley to file an amended complaint within 20 days repleading the Section 1983 claims only.
/s/_________
DAN PELLEGRINI, JUDGE ORDER
AND NOW, this 22nd day of July, 2011, the order of the Greene County Court of Common Pleas is affirmed insofar as it dismissed the state law claims and the Section 1983 claims are remanded to the trial court to issue an order directing Goodley to file an amended complaint within 20 days repleading the Section 1983 claims only.
/s/_________
DAN PELLEGRINI, JUDGE