Opinion
No. 638 M.D. 2011
10-16-2012
Robert L. Holbrook, Petitioner v. The Pennsylvania Department of Corrections, Secretary John Wetzel, SCI-Coal Township Superintendent David Varano, Mailroom Supervisor Theresa Jellens, Acting Business Manager Nancy Wilson, Chief Grievance Officer Dorina Varner, Respondents
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
This matter is a petition for review filed in this Court's original jurisdiction, pro se, by Robert L. Holbrook, against the Department of Corrections (Department), Department Secretary John Wetzel, Superintendent David Varano, Mailroom Supervisor Theresa Jellens, Acting Business Manager Nancy Wilson, and Chief Grievance Officer Dorina Varner (Respondents). Holbrook seeks an order from this Court enjoining Respondents from enforcing a policy set forth in DC-ADM 803, Inmate Mail and Incoming Publications, which requires that incoming publications denied by the Inmate Publications Review Committee (IPRC) must be returned to sender at the inmate's expense or "otherwise disposed of properly." Respondents have filed a preliminary objection stating a lack of original jurisdiction and two additional preliminary objections, each in the nature of a demurrer.
The Department's Policy Number DC-ADM 803 outlines the review process for incoming publications and establishes criteria used to determine whether or not individual publications are appropriate to be admitted to the institution. Section 1.A.3. deals with general procedures regarding inmate mail privileges, and specifies eleven categories of prohibited correspondence. Section 3 deals with the handling and distribution of mail, and Section 3.E. deals specifically with incoming publications. Section 3.E.3 specifies that a request for and receipt of any publication may be disapproved when it contains "content considered to pose a potential threat to security, contains nudity, explicit sexual materials, or obscene material as defined...". Section 3.A.9 states that "Incoming mail that is determined to be undeliverable for any reason other than those stated in Section 1.A.3., shall be marked appropriately and returned to sender at the inmate's expense, destroyed, held for investigation, held as evidence, other otherwise disposed of properly." (Procedures Manual, Commonwealth of Pennsylvania, Department of Corrections, Policy No. DC-ADM 803, available electronically at http://cor.state.pa.us.)
Holbrook is an inmate currently incarcerated at the State Correctional Institution at Coal Township, Pennsylvania (SCI-Coal). Holbrook received a Notice of Publication Denial from SCI-Coal's IPRC indicating that the summer 2011 issue of a magazine entitled "4 StruggleMag," to which he subscribed, presented a security issue; the notice identified specific pages therein as "writing which advocates violence, insurrection or guerrilla warfare against the government or any of its facilities or which creates a danger within the content of the correctional facility," "writings that advocate, assist, or are evidence of criminal activity o[r] facility misconduct," and "racially inflammatory material or material that could cause a threat to the inmate, staff, or facility security." (Holbrook's Amended Petition for Review (Petition for Review), Exhibit A.) The form notice includes a sticker in the top left corner that indicates "PUBLICATIONS BEING SENT OUT MUST BE RETURNED TO THE VENDOR. THEY CANNOT BE SENT TO ANOTHER ADDRESS." (Id.) Holbrook filed an inmate grievance (#383116), stating that the publisher of "4StruggleMag" does not refund issues, and requesting that he be permitted to have the issue sent to his home. (Petition for Review, Exhibit B.) The grievance was denied, and he filed a grievance appeal to SCI-Coal's Facility Manager. That appeal was denied (Petition for Review, Exhibit E), and Holbrook submitted a final appeal, stating that in previous institutions where he had been incarcerated, he had been permitted to send denied publications to his home. (Petition for Review, Exhibit F.) In his final grievance appeal, Holbrook cited Section 3.E.4.(d), a subsection of the Department's DC-ADM 803 policy that deals with appeals from the denial of a publication, wherein it is stated "if the inmate chooses not to appeal, a cash slip must be sent to the mailroom in order to mail the publication or photograph out of the facility." (Id.) Holbrook argued that Section 3.E.4.(d) contains no restriction on where the denied publication may be sent. The final appeal decision, signed by the Chief Grievance Officer, indicated that all incoming mail, whether correspondence or publications, is subject to the criteria outlined in DC-ADM 803, and to the rules outlined in Section 3 thereof; the decision noted that although Holbrook may have been permitted to send previously denied publications to his home, the current practice of returning publications to the vendor is in compliance with Department policy. (Petition for Review, Exhibit G.)
Both the Initial Review Response to Holbrook's grievance, signed by the Acting Business Manager, and the Final Appeal Decision, signed by the Chief Grievance Officer, determined the manner in which SCI-Coal was denying the publication to be appropriate, and further stated that SCI-Coal would be incurring liability by sending contraband to anyone other than a sender. The Initial Review Response states "To allow inmates to send contraband to a third party could facilitate the delivery of obscene, pornographic, or other offensive materials to minors, victims or other indiscriminate individuals." (Petition for Review, Exhibit C.)
Holbrook then filed the instant petition for review, asserting a claim for a violation of 42 U.S.C. §1983. See Owens v. Shannon, 808 A.2d 607 (Pa. Cmwlth. 2002) (to state a claim under Section 1983, a plaintiff must: (1) allege a violation of rights secured under the United States Constitution or United States law, and (2) show that the alleged violation was committed by a person acting under color of state law). Holbrook alleges that he is being deprived of his property, specifically a publication he purchased with his own funds, in violation of the Fourteenth Amendment, and this deprivation constitutes censorship, since he cannot appeal the denial of a publication within the refund period established by vendors.
Holbrook filed his original petition for review on December 30, 2011. Respondents filed preliminary objections on March 16, 2012. Holbrook applied to amend his petition for review on March 26, 2012, and his application to amend was granted on April 11, 2012. Holbrook's amended petition for review was filed on April 24, 2012; Respondents again filed preliminary objections on May 24, 2012. This Court ordered the submission of briefs on June 12, 2012.
In its preliminary objections pursuant to Pa. R.C.P. No. 1028(a)(1), the Respondents first assert that, to the extent that Holbrook is challenging the handling of the grievance he filed, this Court lacks jurisdiction over the matter. Indeed, our Pennsylvania Supreme Court has held that we do not usually have original jurisdiction over inmate petitions for review following grievance proceedings. Bronson v. Central Office Review Committee, 554 Pa. 317, 721 A.2d 357 (1998); Portalatin v. Department of Corrections, 979 A.2d 944, 948 (Pa. Cmwlth. 2009). We agree. In Bronson, a case involving the denial of reimbursement for the allegedly improper confiscation of civilian clothes, our Supreme Court held that this Court lacks appellate jurisdiction over inmate appeals of decisions by intra-prison disciplinary tribunals, such as grievance appeals. In so holding the Court explained:
[I]nternal prison operations are more properly left to the legislative and executive branches; and ... prison officials must be allowed to exercise their judgment in the execution of policies necessary to preserve order and maintain security free from judicial interference. ... Unlike the criminal trial and appeals process where a defendant is accorded the full spectrum of rights and protections guaranteed by the state and federal constitutions, and which is necessarily within the ambit of the judiciary, the procedures for pursuing inmate grievance and misconduct appeals are a matter of internal prison administration and the 'full panoply of rights due a defendant in a criminal prosecution is not necessary ...'Id. at 321, 721 A.2d at 358-59 (internal citations omitted). The Bronson Court further held that "even if [Bronson] had invoked the Court's original jurisdiction by attempting to color the confiscation of his clothing as a violation of his protected constitutional property rights, his claim would fail," and "[p]rison inmates do not enjoy the same level of constitutional protections afforded to non-incarcerated citizens." Id. at 322-23, 721 A.2d at 359. The Supreme Court concluded that, "[U]nless 'an inmate can identify a personal or property interest ... not limited by Department [of Corrections] regulations and which has been affected by a final decision of the department' the decision is not an adjudication subject to the court's review." Id. (citation omitted).
Sub judice, Holbrook's rights with regard to the denied publication are expressly limited by the Department's written directive, as interpreted by prison administration. Accordingly, Holbrook's petition is insufficient to invoke this Court's original jurisdiction. We sustain Respondents' preliminary objection based on a lack of jurisdiction, and dismiss Holbrook's petition for review.
Because we sustain Respondents' preliminary objection based on lack of jurisdiction, we need not address Respondents' other preliminary objections in the nature of demurrers. --------
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 16th day of October, 2012, the Petition for Review in the above-captioned matter is hereby dismissed for lack of jurisdiction.
/s/_________
JAMES GARDNER COLINS, Senior Judge