Opinion
No. 419 M.D. 2012
04-09-2013
Donna Hill, Petitioner v. Commonwealth of Pennsylvania, Department of Corrections, Respondent
OPINION NOT REPORTED MEMORANDUM OPINION
Before this Court for disposition are the preliminary objections of the Commonwealth of Pennsylvania, Department of Corrections (Department) in the nature of a demurrer to the amended petition for review filed by Donna Hill seeking a writ of mandamus. We sustain the demurrer and dismiss the amended petition for review.
Hill, who is not incarcerated, is the wife of Dwayne Hill, an inmate incarcerated at SCI-Houtzdale. Hill filed a pro se petition for review and sought in forma pauperis status. The Court directed the matter to be treated as a petition for review addressed to the Court's original jurisdiction and granted in forma pauperis status. Hill then filed an amended petition for review.
Hill alleges that in April of 2012, the Department suspended her visiting privileges and confiscated her incoming mail and her husband's outgoing mail addressed to her. The record shows that by letter dated April 12, 2012, the Department informed Hill that her visiting privileges were suspended indefinitely due to a pending investigation. Hill asserts that the Department suspended her visiting privileges indefinitely on June 26, 2012, in retaliation for exercise of her right of free speech and in violation of her right to due process. In support of her case, Hill appended several pieces of mail received from Inmate Hill. Hill asks this Court to order the Department to reinstate her visiting privileges and return or reimburse her for the confiscated mail.
The Department filed preliminary objections to the amended petition. The Department demurred pursuant to Pennsylvania Rule of Civil Procedure 1028(4), Pa.R.C.P. No. 1028(4). The Department asserted that Hill did not have a cause of action for the alleged violation of Department policy and she did not have a constitutional right to visitation. The Department also asserts that Hill, as a non-lawyer, is not permitted to represent her husband before Pennsylvania courts and administrative agencies.
Mandamus is an extraordinary remedy that compels official performance of a ministerial act or a mandatory duty. Byrd v. Pa. Bd. of Prob. & Parole, 826 A.2d 65 (Pa. Cmwlth. 2003). A writ of mandamus may be issued only where there is a clear legal right in the petitioner, a corresponding duty in the respondent, and the absence of any other appropriate and adequate remedy. Id. In our original jurisdiction, a mandamus action must define the issues, and every act or performance essential to that act must be stated in the complaint. See Pa. R.C.P. No. 1019; Myers v. Ridge, 712 A.2d 791 (Pa. Cmwlth. 1998). We need not accept as true legal conclusions, unwarranted factual inferences, argumentative allegations or expressions of mere opinion. Myers. The test is whether it is clear from all of the facts pled that they are legally insufficient to establish the petitioner's right to relief. Id.
Hill asserts that the suspension of her visiting privileges violated her due process rights. A petitioner "is required to plead sufficient facts showing a challenged action clearly and unambiguously violated a constitutionally secured right." Nickson v. Commonwealth Bd. of Prob. & Parole, 880 A.2d 21, 24 (Pa. Cmwlth. 2005). As the United States District Court for the Middle District of Pennsylvania noted:
Previously, Hill's visiting privileges were indefinitely suspended in 2008 as a result of a Department investigation, which found that she had provided her husband with an item of contraband that could be used to effectuate an escape. She filed a petition for review asserting that the indefinite suspension of her visiting privileges was arbitrary, discriminatory and indefinite and violated her due process rights. This Court dismissed her petition concluding that she does not have a constitutional right to prison visitation. Pfender v. Dep't of Corr., (Pa. Cmwlth. No. 168 M.D. 2009, filed September 23, 2009). --------
Inmates have no constitutional right to visitation. Visitation is a privilege subject to revocation at the discretion of the [w]arden when necessary to ensure security and maintain order in the institution. Prison authorities have discretion to curtail or deny visitation if they deem appropriate, and no due process right is implicated in the exercise of that discretion.Flanagan v. Shively, 783 F. Supp. 922, 934 (M.D. Pa. 1992), aff'd, 980 F.2d 788 (3d Cir. 1992). See also Chem v. Horn, 725 A.2d 226, 229 n.2 (Pa. Cmwlth. 1999) (stating that an inmate does not "have a protected liberty interest in visiting privileges"); Feigley v. Jeffes, 522 A.2d 179 (Pa. Cmwlth. 1987) (holding that an inmate was properly restricted from receiving visits from his spiritual adviser, who was deemed a security threat). Because grant or denial of visitation rights does not involve a mandatory duty or ministerial act, mandamus will not lie. Moreover, because Hill did not have a constitutional right to visitation, the suspension of visiting privileges does not constitute a due process violation. Hence, Hill has failed to establish a clear right to relief.
Hill also alleges that the suspension of her visiting privileges was in retaliation for her making complaints and filing the petition for review. To prevail on her retaliation claim, the complaint must state facts that show: (1) she engaged in constitutionally protected conduct; (2) the retaliation against that conduct resulted in adverse action; and (3) the protected conduct was a substantial and motivating factor for the retaliation. Yount v. Dep't of Corr., 600 Pa. 418, 426-29, 966 A.2d 1115, 1120-21 (2009). Adverse action can be established by showing that the retaliatory action taken by the Department was "sufficient to deter a person of ordinary firmness from exercising his [constitutional rights]." Id. at 428, 966 A.2d at 1121 [citing Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)]. Hill must also show that the retaliatory action did not further a legitimate penological goal. Id. at 426-28, 966 A.2d at 1120-21.
Hill's amended petition fails to satisfy any of the requirements of retaliation claim. Hill alleges that her complaints regarding the suspension of her visiting privileges and the filing of suit against the Department were the constitutionally protected activities. This allegation is nonsensical as the suspension was instituted prior to Hill's alleged engagement in protected activity. Thus, the Department's suspension of visiting privileges and confiscation of mail could not be construed as retaliatory acts.
Accordingly, for all of the foregoing reasons, we sustain the Department's preliminary objections in the nature of demurrer and dismiss Hill's amended petition for review. PER CURIAM ORDER
AND NOW, this 9th day of April, 2013, the preliminary objections filed by the Commonwealth of Pennsylvania, Department of Corrections are hereby SUSTAINED. Petitioner's amended petition for review is dismissed.