Opinion
No. 445 M.D. 2011
03-14-2012
Clinton O. Whitehead, Petitioner v. Rich Keller, Licensed Counselor for PA Dept. of Corrections at SCI At Dallas, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Rich Keller (Keller), Licensed Counselor for the Pennsylvania Department of Corrections (DOC) at the State Correctional Institution at Dallas (SCI-Dallas) preliminarily objects to the Complaint in Mandamus (Complaint) filed by Clinton O. Whitehead (Whitehead).
I. Complaint
A. Factual Allegations.
Whitehead is an inmate at SCI-Dallas. On September 15, 2011, he filed a complaint in mandamus in this Court's original jurisdiction. Whitehead alleges:
5. Keller was presented by Whitehead on June 16, 2008 with documents requesting Post Pre-Release in accordance with DC-ADM 805 and Title 37 Pa. Code § 94.6 which sets forth the duties, responsibilities and obligations of an inmate counselor, employed by the Pennsylvania Department of Corrections, with respect to
an incarcerated Citizen's Application for Post Pre-Release.
6. Keller informed Whitehead the necessary application process would take approximately three and one half (3½) to four (4) months to complete.
7. Whitehead requested from Keller in December, 2008 information on the status of his post pre-release application and paperwork necessary for the process to be completed.
8. Mr. Whitehead's necessary paperwork should have been completed by Keller no later than November, 2008.
9. Keller informed Whitehead that his post pre-release application was never processed.
10. The reasons given by Keller in not processing Whitehead's application for post pre-release was because of an incident involving the Pennsylvania Governor's moratorium when a police officer was fatally shot by a [sic] individual on parole. Mr. Keller also stated that he, Counselor John Judge, and Unit Manager Paul Dragon had decided to not process the Post Pre-Release application.
11. The incident that sparked the Governor to issue a Moratorium occurred in the last of October and/or the first week of November, 2008.
12. Whitehead's application for post pre-release should have been completed even before the Pennsylvania Governor issued a Moratorium relative to the fatal shooting of a police office [sic] . . . .
. . . .
14. Whitehead wrote a three (3) page Request Slip to Keller when he discerned that Keller did not process the necessary and required documents and paperwork required for the post pre-release application process to begin. . . .
15. Whitehead filed a Grievance on 1/16/09 . . . complaining about post pre-release papers [having] not be[en] processed in accordance with D.O.C. policy (DC-ADM 805) and Pennsylvania Legislative Intent (Title 37 Pa. Code § 94.5 Notification; 94.6 Staff Responsibilities). . . .Complaint in Mandamus, September 15, 2011, (Complaint), Paragraph Nos. 5-12, 14-16, and 18-22 at 2-6.
16. Whitehead's sister called the Pennsylvania Department of Corrections Central office relative to Keller's actions/inactions and according to Grievance #258661 (dated 1/16/09) the reply from Miss Brittain stated the paperwork was processed and denied for 2009 wherein this statement is completely false.
. . . .
18. Mr. Keller has Mr. Whitehead's application for post pre-release and only has to follow the mandates outlined in DC-ADM 805 and Title 37 Pa. Code § 94.6.
19. Keller has not complied with the necessary mandates of the law and policy relative [to] DC-ADM 805 and Title 37 Pa.Code § 94.6.
20. Mr. Whitehead approached Mr. Keller on 'I' block on 2/16/11 and inquired as to the status of his now 2010 Post Pre-Release application. Mr. Keller's response was your application for 2010 was ' PUT ON THE BACK BURNER ' and other applications were being processed, those being submitted after Mr. Whitehead's 2010 application.
21. A week later, still in February 2011, Mr. Whitehead goes before the Unit Manager, Mr. Josefowicz, Keller, and Counselor John Judge and a new person on the block, a psychiatrist, and interviewed again for Post Pre-Release (Mr. Whitehead does not see Parole this year (2011) because of the two (2) year hit in 2010.
22. It has been from June 16, 2009 to the present date which his [sic] almost thirty-eight (38) months with absolutely nothing from Corrections Counselor Mr. Keller on Mr. Whiteheads [sic] Post Pre-Release Application. (Emphasis in original).
B. Request for Relief.
Whitehead seeks the following: 1) peremptory judgment in mandamus to direct Keller to grant Whitehead pre-release status; 2) an order which directs Keller to follow 37 Pa.Code §94.6 and/or DOC's policy contained at DC- ADM 805 in all pre-release proceedings. Essentially, Whitehead seeks an order that directs Keller to complete Whitehead's application for pre-release and refer it to his supervisors for review; 3) an order which directs SCI-Dallas to actively ensure that Keller follows the mandatory policy of DC-ADM 805; and 4) an order awarding Whitehead $6,000 in damages which consists of $2,000.00 for the years "2008, 2009 and 2010 for these continuing wrongs suffered by Plaintiff [Whitehead] due to Defendant's [Keller] inactions . . . ." Complaint, Relief Requested Paragraph No. 2 at 7.
37 Pa. Code §94.6 provides:
(a) It is the primary responsibility of the inmate's counselor to process the inmate's application for participation in the prerelease programs.
(1) The inmate's counselor is responsible for obtaining, integrating and coordinating the information necessary to determine the inmate's eligibility or noneligibility for participation in a prerelease program.
(2) The inmate's counselor will accept and review the inmate's application. If necessary, the counselor may help the inmate initiate this process. The inmate's counselor will also be responsible for having the housing officer, work supervisor and other appropriate staff complete relevant portions of the application and make recommendations concerning prerelease programming.
(3) The inmate's counselor shall verify, with the record officer, the necessary information with respect to the inmate's sentence and detainer status.
(4) The inmate's counselor will review and verify available information relevant to eligibility - for example, presentence investigation report, judge's sentencing notes, classification and reclassification summary records and cumulative adjustment record.
(5) The inmate's counselor will request proper psychological and psychiatric evaluations for those applicants who have a history of mental or emotional disorders, violent crimes or other situations when deemed advisable. The inmate's counselor may contact other persons and agencies to acquire additional information.
(6) When the necessary information has been obtained, the inmate's counselor will refer the application to his supervisors for review.
DC-ADM 805 is a DOC policy relating to pre-release and outside work details.
Whitehead labels two different paragraphs as number two in the Relief Requested section of the Complaint.
II. Conformance with Pa.R.C.P. No. 1020.
This Court notes that Whitehead has failed to divide the Complaint into Counts as required by Rules 1020(a) and (d)(1) of the Pennsylvania Rules of Civil Procedure. However, Keller does not preliminarily object to this failure to follow the Pennsylvania Rules of Civil Procedure. Because this Court is able to discern Whitehead's request for relief, this Court will address the Complaint and Keller's preliminary objections.
Rules 1020(a) and (d)(1) of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. Nos. 1020(a) and (d)(1), provide:
Rule 1020. Pleading More Than One Cause of Action. . . .
(a) The plaintiff may state in the complaint more than one cause of action cognizable in a civil action against the same defendant. Each cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief.
. . . .
(d)(1) If a transaction or occurrence gives rise to more than one cause of action against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person.
III. Keller's Preliminary Objections.
A. Preliminary Objection to Whitehead's Request that this Court Order
Keller to Grant him Pre-Release.
Keller preliminarily objects in the nature of a demurrer and alleges that mandamus does not lie to compel him to grant Whitehead pre-release because an inmate has no right to participate in a pre-release program, and Keller lacks the authority to grant pre-release.
Keller originally preliminarily objected on the basis that the Complaint is time-barred and that Whitehead's request for $6,000 in damages fails to conform to the Pennsylvania Rules of Civil Procedure. In his brief, Keller withdrew these preliminary objections, and they are not presently before this Court. --------
In considering preliminary objections, this Court must consider as true all well-pleaded material facts set forth in the petitioner's petition and all reasonable inferences that may be drawn from those facts. Mulholland v. Pittsburgh National Bank, 405 Pa. 268, 271-272, 174 A.2d 861, 863 (1961). Preliminary objections should be sustained only in cases clear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief. Werner v. Zazyczny, 545 Pa. 570, 681 A.2d 1331 (1996).
Mandamus is an extraordinary writ designed to compel performance of a ministerial act or mandatory duty where there exists a clear legal right in the plaintiff, a corresponding duty in the defendant and want of any other adequate and appropriate remedy. Princeton Sportswear Corp. v. Redevelopment Authority, 460 Pa. 274, 333 A.2d 473 (1975).
In Auberzinski v. Pennsylvania Board of Probation and Parole, 690 A.2d 776 (Pa. Cmwlth. 1997), this Court held that participation in a pre-release program is a privilege and not a right. Similarly, in Reider v. Bureau of Correction, 502 A.2d 272 (Pa. Cwlth. 1985), this Court held that an inmate does not have a protected liberty interest in the Commonwealth's pre-release program so that William D. Reider's petition for review in the this Court's original jurisdiction which alleged a violation of his constitutional rights based upon the denial of pre-release status failed to state a cause of action upon which relief could be granted.
In his answer to the preliminary objections, Whitehead concedes that he does not have a right to participation in the pre-release program. This Court sustains this preliminary objection.
B. Preliminary Objection to Whitehead's Request to Have this Court Order
Keller and SCI-Dallas to Comply with DC-ADM 805.
Keller preliminarily objects and asserts that Whitehead has no enforceable rights under DC-ADM 805 because administrative regulations do not create enforceable rights in inmates.
In Bullock v. Horn, 720 A.2d 1079 (Pa. Cmwlth. 1998), an inmate relied on DC-ADM 811 to support his assertion that he had a right to boots. This Court noted that administrative regulation or policies create no rights in inmates. As Whitehead has no right to relief, mandamus does not lie pursuant to DC-ADM 805. This Court sustains Keller's preliminary objection.
IV. Remaining Allegations.
Keller neither preliminarily objects to Whitehead's request that this Court order Keller to process Whitehead's application for pre-release because he had a duty to process the application under 37 Pa.Code §94.6 nor does Keller object to Whitehead's address for money damages. As a result, Keller is directed to file an answer to the remainder of the Complaint within thirty days of the date of this order.
V. Conclusion.
Accordingly, this Court sustains Keller's preliminary objections based on Whitehead's lack of a right to pre-release and that DC-ADM 805 creates no right to pre-release. Keller is directed to file an answer to the remainder of the Complaint within thirty days of the date of this Order.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 14th day of March, 2012, the preliminary objections of Rich Keller to Clinton O. Whitehead's Complaint in Mandamus for the right to prerelease and for violations of the Department of Corrections' DC-ADM 805 are sustained. Rich Keller is directed to file an answer to the remainder of Clinton O. Whitehead's Complaint within thirty days of the date of this order.
/s/_________
BERNARD L. McGINLEY, Judge