Opinion
No. 462 M.D. 2020
09-30-2021
Robert WINTON, Petitioner v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Attorney General of Pennsylvania, Respondents
Kelly J. Hoke, Assistant Counsel, Mechanicsburg, for Respondent.
Kelly J. Hoke, Assistant Counsel, Mechanicsburg, for Respondent.
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION BY JUDGE FIZZANO CANNON
Before the court are preliminary objections filed jointly by the Pennsylvania Department of Corrections (Department) and the Attorney General of Pennsylvania (Attorney General) in response to the pro se Petition for Review (Petition) filed on August 5, 2020, by Robert Winton (Winton) (Preliminary Objections). Winton seeks relief in our original jurisdiction concerning the Department's handling of his allegations that another inmate sexually abused him. For the reasons that follow, we sustain the Preliminary Objections filed by the Department and Attorney General and dismiss the Petition.
Factual & Procedural Background
Winton is incarcerated at the State Correctional Institution at Houtzdale (SCI-Houtzdale). Petition ¶ 2. Winton alleges that in February 2019, he was sexually assaulted by his cellmate. Petition ¶ 5. Winton asserts that he reported the assault to Corrections Officer Myers (Myers), who in turn reported it to Unit Manager Ginter (Ginter), but according to Winton, Myers and Ginter did not comply with the Department's procedures pursuant to the Prison Rape Elimination Act (PREA). Petition ¶ 10. Specifically, Winton claims Myers and Ginter did not immediately separate him from his alleged abuser, did not advise him to take precautions to protect any remaining physical evidence in or on his person, and did not ensure that he was taken to an outside medical facility for a forensic medical examination, as set forth in the Department's PREA procedures manual. Petition ¶¶ 6-9. Winton asks this Court to order a new investigation, issue a declaratory judgment that the Department mishandled his allegations, and issue an injunction requiring Department compliance with PREA.
34 U.S.C. §§ 30301 -30309. Pursuant to Department Policy Statement DC-ADM 008, effective April 22, 2019, the Department has implemented PREA standards and practices to prevent, detect, and respond to inmate reports of sexual abuse and harassment. See https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/dc-adm-008.pdf (last visited September 29, 2021).
In joint Preliminary Objections, the Department and Attorney General assert that any determination the Department makes concerning an inmate's PREA complaint is akin to the final decision in inmate grievance proceedings and therefore generally beyond this Court's original or appellate jurisdiction. Preliminary Objections ¶ 14 & Br. The Department also argues that Winton's claim is invalid for consideration by this Court because PREA does not provide a private right of action. Id . ¶ 15 & Br.
The Department and Attorney General have not asserted that Petitioner failed to exhaust his administrative remedies through the Department's grievance or PREA procedures, even though the Petition does not state the outcome of Petitioner's reports to prison officials. However, in a parallel federal court action in which Petitioner has claimed that the Department's handling of the alleged February 2019 sexual assault amounted to a "failure to protect" claim under the Eighth Amendment to the U.S. Constitution, U.S. Const. amend. VIII, Petitioner's Complaint stated that the Department's investigation report had deemed his allegations "unsubstantiated." Petitioner's Second Amended Complaint ¶ 6, Winton v. Smith , No. 3:20-CV-00103-SLH-KAP (W.D. Pa., filed Sept. 8, 2020). DC-ADM 008 describes a finding of "unsubstantiated" as meaning that the investigation produced insufficient evidence to determine whether the alleged incident occurred. DC-ADM 008 Glossary of Terms.
Generally, when considering preliminary objections, a court may not take judicial notice of the records in another case. Guarrasi v. Scott , 25 A.3d 394, 398 n.3 (Pa. Cmwlth. 2011). This rule, however, is subject to limited exceptions, and a court may take notice of a fact which the parties have admitted. Id . Here, since Petitioner averred in his federal action that his reports of the assault were processed by the Department to a determination that his claims were unsubstantiated, we take notice of that fact for purposes of this appeal.
In his answer to the Preliminary Objections, Winton responds that this was neither a grievance nor a private cause of action, but rather an assertion that the Department's actions with regard to his PREA report violated PREA itself, a federal law, and deprived him of his due process right to relief under PREA; therefore, this Court may review and decide his Petition. Winton's Response to Preliminary Objections ¶¶ 14-15.
Winton did not file a brief in this matter.
Preliminary objections admit as true all well and clearly pleaded material, relevant factual averments, and all inferences fairly deducible therefrom. Barndt v. Pa. Dep't of Corr. , 902 A.2d 589, 592 (Pa. Cmwlth. 2006). However, conclusions of law and unjustified inferences are not so admitted. Id . Preliminary objections will not be sustained unless the face of the pleadings shows that the law will not permit recovery, and any doubts should be resolved against sustaining the objections. Id .
This Court has held that "internal prison operations are more properly left to the legislative and executive branches, and that 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." Bronson v. Cent. Off. Rev. Comm. , 554 Pa. 317, 721 A.2d 357, 358 (1998). As such, "the procedures for pursuing inmate grievances and misconduct appeals are a matter of internal prison administration" and largely outside this Court's jurisdiction, whether appellate or original. Id . at 358-59. An exception exists where an inmate claims the violation of a specific constitutional right not otherwise limited or addressed by the remedies of the Department, keeping in mind that prison inmates "do not enjoy the same level of constitutional protections afforded to non-incarcerated citizens." Id . at 359.
This Court addressed PREA claims in Tillman v. Pennsylvania Department of Corrections (Pa. Cmwlth., No. 327 M.D. 2016, filed June 9, 2017), 2017 WL 2536456 (unreported), aff ’d per curiam , 647 Pa. 393, 189 A.3d 423 (2018). There, the inmate sought this Court's review of the Department's determination that his PREA allegation of voyeurism by a Department counselor was unfounded and also claimed that prison authorities had failed to properly conduct their investigation; the Department filed a preliminary objection challenging this Court's jurisdiction to consider the matter. Id ., slip op. at 2-3, 2017 WL 2536456 at *1-2. This Court sustained the objection, characterizing the Department's determination in a PREA matter as "akin to the final appeal decision of a grievance" and therefore beyond this Court's original or appellate jurisdiction. Id ., slip op. at 7, 2017 WL 2536456, at *3 (citing Bronson and Brown v. Pa. Dep't of Corr. , 913 A.2d 301, 305 (Pa. Cmwlth. 2006) ).
This Court's unreported memorandum opinions issued after January 15, 2008, may be cited for persuasive value. 210 Pa. Code § 69.414(a).
We find our reasoning in Tillman persuasive. DC-ADM 008 sets forth detailed procedures for facility personnel tasked with conducting investigations and reporting on alleged incidents of sexual assault, and those investigations and reports are subject to subsequent review by the Department's Bureau of Investigations and Intelligence. See DC-ADM 008 §§ 16 ("Sexual Abuse Incident Review") & 18 ("Investigating Allegations of Sexual Abuse and/or Sexual Harassment"). This is sufficiently analogous to the Department's grievance process to warrant the same deference.
Here, Winton is dissatisfied with the Department's investigation and its results, but his Petition does not allege a specific constitutional violation that would permit this Court to assume jurisdiction over this matter. Although Winton's response to the Preliminary Objections asserted a due process violation, that averment was based on Winton's belief that the Department's investigation had not provided him the relief to which he believed he was entitled under PREA. See Petitioner's Response to Preliminary Objections. This does not amount to an asserted violation of a constitutionally protected personal or property right outside of the Department's authority so as to overcome the jurisdictional barriers set forth in Bronson .
Relatedly, in Tillman , this Court noted that an inmate is "prohibited from asserting a claim pursuant to PREA, because PREA does not provide a private right of action." Slip op. at 7, 2017 WL 2536456, at *3 (citing Nestor v. Dir. of Ne. Region Bureau of Prisons (D. N.J. No. 11-4683, filed Dec. 20, 2012), 2012 WL 6691791, at *3 ). We agree based on the following persuasive explanation of PREA's purpose and scope:
While the PREA was intended in part to increase the accountability of prison officials and to protect the Eighth Amendment rights of Federal, State, and local prisoners, nothing in the language of the statute establishes a private right of action. Thus, Plaintiff cannot bring a private action to enforce obligations set forth in the PREA, whether through the statute itself or through [an] attempt to enforce the [County Correctional Facility's] PREA policy[.] Moreover, to the extent Plaintiff challenges the quality of the investigation into his PREA complaints, he has no freestanding right to such an investigation.
Whyte v. Rockey (M.D. Pa., No. 1:21-CV-00124, filed July 15, 2021), 2021 WL 2986367, at *3 (citations and quotation marks omitted) (collecting cases); see also Chinnici v. Edwards (D. Vt., No. 1:07-CV-229, filed Aug. 12, 2008), 2008 WL 3851294, at *3 ("The PREA is intended to address the problem of rape in prison, authorizes grant money, and creates a commission to study the issue. The statute does not grant prisoners any specific rights." (citation omitted)).
Here, because Winton's allegations do not raise a viable constitutional challenge and PREA creates no private cause of action enabling Winton to sue, this Court lacks jurisdiction to review Winton's Petition. Accordingly, the Preliminary Objections are sustained and the Petition is dismissed.
ORDER
AND NOW, this 30th day of September, 2021, the Preliminary Objections filed by the Pennsylvania Department of Corrections and the Attorney General of Pennsylvania are SUSTAINED and the Petition for Review filed by Robert Winton is DISMISSED.
CONCURRING OPINION BY JUDGE McCULLOUGH
Given the current state of the pertinent case law, I join the Majority in its disposition of this appeal. However, I do so reluctantly because I find the allegations in the petition for review (PFR) filed by the pro se petitioner, Robert Winton (Petitioner), an inmate at the State Correctional Institution at Houtzdale, to be troubling and disconcerting. In the PFR, Petitioner alleges that an inmate committed a sexual assault upon him, and that correctional officers of the Pennsylvania Department of Corrections (Department) failed to subsequently protect him from further, potential abuse and denied him the opportunity to go to a medical facility whereby he could have obtained forensic evidence establishing that the sexual assault had occurred.
Obviously, if Petitioner's claims were found to be meritorious, then the Department should have provided Petitioner with immediate medical attention and afforded him a sexual assault forensic exam, because such evidence could be critical to any and all legal claims that Petitioner may have against the other inmate. On the other hand, and importantly, I write separately to note that when correctional officers commit an intentional tort and act outside the scope of their employment, they are not immunized from liability under the doctrine of sovereign immunity. As stated in my dissenting opinion in Tillman v. Pennsylvania Department of Corrections (Pa. Cmwlth., No. 327 M.D. 2016, filed June 9, 2017), 2017 WL 2536456 (unreported) (McCullough, J., dissenting):
Under Pennsylvania law, a Commonwealth employee is protected by sovereign immunity for conduct occurring within the scope of his employment but remains liable for willful misconduct and intentional torts committed outside the scope of his employment. Kull v. Guisse , 81 A.3d 148, 157-158 (Pa. Cmwlth. 2013). An employee acts within the scope of his employment when he engages in conduct of the kind the employee is employed to perform, when the conduct occurs substantially within the authorized time and space limits, and when the conduct is actuated, at least in part, by a purpose to serve the employer. Natt v. Labar , 543 A.2d 223, 213-14 [223-24] (Pa.Cmwlth. 1988).
[However,] "[w]here the alleged intentional tort was unprovoked, unnecessary or unjustified by security concerns or penological goals, courts have ruled that such conduct does not, as a matter of law, fall within the scope of employment." Wesley v. Hollis (E.D. Pa., No. 03-3130, filed June 6, 2007) (unpublished). Based upon the facts averred, if it can "be reasonably inferred that the [employee] was motivated by personal concerns, he was not acting within the scope of his employment ...." Gray v. Wakefield (M.D. Pa., No. 3:CV-09-0979, filed June 4, 2014) (unpublished). Ordinarily, the question of whether an individual has acted within the scope his employment is a question of fact for the jury to decide. Orr v. William J. Burns International Detective Agency , 12 A.2d 25, 27 (Pa. 1940).
Tillman , slip op. at 2-3 (McCullough, J., dissenting) (internal footnotes omitted). Having made these observations, I nonetheless join the Majority's opinion, but I do so hesitantly and with great concern with the direction of the case law in this area of jurisprudence.