Opinion
No. 577 M.D. 2010
02-23-2012
Sehu-Kessa-Saa Tabansi AKA Alfonso Percy Pew, Petitioner v. Jeffrey A. Beard, Franklin D. Tennis, Lynn Eaton, Robert Vance, Steven Davy, Dorina Varner, SCI-Rockview Publications Review Committee Members, Dept. of Correction Publications Appeals and Grievance Final Appeals Members (Official and Individual Capacities), Respondents
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Jeffrey A. Beard, Franklin D. Tennis, Lynn Eaton, Robert Vance, Steven Davy, Dorina Varner, SCI-Rockview Publications Review Committee Members, Department of Correction Publications Appeals and Grievance Final Appeals Members (Official and Individual Capacities) (together, Respondents) have filed a motion for judgment on the pleadings (Motion) requesting that judgment be entered in their favor and against Sehu-Kessa-Saa Tabansi, a/k/a Alfonso Percy Pew (Petitioner). We grant Respondents' Motion.
We may grant judgment on the pleadings only if we determine that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Montgomery County v. Department of Corrections, 879 A.2d 843, 846 n.5 (Pa. Cmwlth. 2005), aff'd, 587 Pa. 500, 901 A.2d 494 (2006).
On October 27, 2009, Petitioner filed a complaint against Respondents in the Court of Common Pleas of Centre County (trial court). In his complaint, Petitioner alleged that prison officials improperly intercepted his mail and banned certain publications in violation of his rights under the United States and Pennsylvania Constitutions, causing him political repression and harassment. Petitioner sought injunctive and declaratory relief as well as damages. The trial court transferred the matter to this court on June 25, 2010.
The prohibited publications included "Critical Resistance," "Sling Shot," "Student Insurgent," "Don't Shank the Guards Handbook," and books from an organization called "Anarchist Black Cross Federation." (Complaint, ¶¶ 17-18, 21.)
Upon transfer to this court, Petitioner's complaint was treated as a petition for review in this court's original jurisdiction.
On August 13, 2010, Respondents filed and served an answer and new matter with a notice to plead. Respondents averred that Department of Corrections (DOC) Policy DC-ADM-803 prohibits inmates from receiving and possessing certain materials, including writings that advocate violence, insurrection or guerilla warfare and racially inflammatory materials. Respondents further averred that they had legitimate penological reasons for the publication ban, including safety and security. Petitioner filed a reply to Respondents' new matter on December 9, 2010.
On July 15, 2010, this court ordered Respondents to file an answer or otherwise plead within thirty days. Thus, their answer, filed on August 13, 2010, was timely.
On May 24, 2011, Respondents filed the instant Motion. In their Motion, Respondents assert that, by failing to file his reply in a timely manner, Petitioner admitted the well-pleaded allegations in Respondents' new matter and, as such, Respondents are entitled to judgment as a matter of law. On June 8, 2011, Petitioner filed a pro se response to the Motion, in which he claims that the reason for his late reply to Respondents' new matter was that prison officials withheld his incoming mail from August 6, 2010, through December 7, 2010. Petitioner claims that he filed his reply immediately after receiving Respondents' new matter on December 7, 2010, and, thus, it was not untimely.
Petitioner was precluded from filing a brief by order of this court dated November 29, 2011, due to his failure to comply with the court-ordered briefing schedule.
Under Pennsylvania Rule of Appellate Procedure 1516(b), all pleadings after the petition for review shall be filed within thirty days after service of the preceding pleading if the preceding pleading contains a notice to plead. Pa. R.A.P. 1516(b). Respondents served their answer and new matter, which contained a notice to plead, by mail on August 6, 2010, but Petitioner did not file his reply until four months later. Due to the late filing of Petitioner's reply, Respondents contend that we must treat the averments in their new matter as admitted, citing Fox v. Pocono Springs Civic Association, Inc., 695 A.2d 484, 485 n.1 (Pa. Cmwlth. 1997), and Edmond v. Southeastern Pennsylvania Transportation Authority, 651 A.2d 645, 647 (Pa. Cmwlth. 1994). However, we need not reach the question of whether Petitioner's late reply resulted in deemed admissions because, even if we were to consider the merits of Petitioner's reply, we would still conclude that Respondents are entitled to relief.
Our Supreme Court has set forth the applicable burdens of proof in cases involving the constitutionality of a prison regulation as follows:
[O]nce an inmate commences an action challenging a prison regulation, it is the obligation of [DOC] to set forth, in its answer to the inmate's complaint, its belief that there is a valid and rational connection between the challenged regulation and an enumerated legitimate penological interest. [DOC] has no specific evidentiary burden at this stage of the proceeding. In order to survive summary dismissal, the inmate then has the burden of either: (1) demonstrating that a genuine issue of material fact exists regarding the reasonableness of [DOC's] belief that its prison regulation will further the enumerated penological interests; or, (2) producing evidence of facts essential to the inmate's cause of action, which would require the issue to be submitted to a jury.Brittain v. Beard, 601 Pa. 409, 423-24, 974 A.2d 479, 487-88 (2009). In other words, the burden is not on DOC to prove the validity of the regulation, but on the inmate to disprove it. Id. at 418, 974 A.2d at 484. In assessing the validity of a prison regulation, courts must "give substantial deference to the professional judgment of prison administrators." Bussinger v. Department of Corrections, 29 A.3d 79, 84 (Pa. Cmwlth. 2011).
Here, Respondents have averred that the regulation prohibiting inmates from receiving publications that advocate violence or insurgency is reasonably related to legitimate penological interests. Specifically, they assert that such materials adversely affect safety and security within the prison because they can lead to criminal activity and riots or other disturbances. We conclude, therefore, that Respondents have demonstrated a rational connection between the challenged regulation and a legitimate penological interest. See Bussinger, 29 A.3d at 86 (stating that prison officials "need only set forth their 'belief'" that the challenged regulation bears a rational relation to a legitimate penological interest) (emphasis in original; citation omitted).
See Bussinger, 29 A.3d at 87 (noting that our courts have recognized legitimate penological interests in, inter alia, "maintaining internal security for the protection of prison employers, prisoners, and visitors"). --------
Petitioner, however, has not established a genuine issue of material fact regarding the reasonableness of the regulation. Neither his untimely reply to Respondents' new matter nor his response to the Motion includes specific factual averments or evidence to refute Respondents' assertions. Petitioner makes only bald allegations that Respondents' policy violates his constitutional rights. Absent evidence to contradict the reasonableness of Respondents' belief, and affording deference to Respondents' professional judgment, we conclude that Petitioner has failed to satisfy his burden of proof. See Brittain, 601 Pa. at 425, 974 A.2d at 488 (concluding that, where DOC advanced legitimate penological interests supporting its prison policy, and inmate failed to raise a genuine issue of fact regarding the policy's reasonableness, DOC was entitled to summary relief). Accordingly, we grant Respondents' Motion and enter judgment in their favor.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 23rd day of February, 2012, we hereby grant the motion for judgment on the pleadings filed by Respondents Jeffrey A. Beard, Franklin D. Tennis, Lynn Eaton, Robert Vance, Steven Davy, Dorina Varner, SCI-Rockview Publications Review Committee Members, Department of Correction Publications Appeals and Grievance Final Appeals Members (Official and Individual Capacities).
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge