IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alfonso Percy Pew, : Petitioner :

:

v. : No. 581 M.D. 2018 : Submitted: August 9, 2019 John E. Wetzel, Secretary of Corrections, : Shirley M. Smeal, Executive Deputy : Secretary of Corrections, Steven Glunt, : Regional Deputy Secretary of Corrections, : Marcia Noles, Bureau Health Care Service : Department of Corrections, Ulrich Klemm, : Bureau Treatment Services Department of : Corrections, Tracey Smith, Direct or Religious : Accommodation Committee Department of : Corrections, Mahally, Superintendent PA. D.O.C., : Demming, Deputy PA. D.O.C., Ronald Ott, : Food Service Manager Pennsylvania : Department of Corrections, Lt. Filipiak, : Pennsylvania Departm ent of Corrections, : John Doe, Deputy Pennsylvania Department : of Corrections, Sued in individual and official : capacities for monetary damages, : Respondents :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge 1
HONORABLE MICHAEL H. WOJCIK , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: November 21, 2019

Before this Court in our original jurisdiction are the preliminary

objections of John E. Wetzel, Secret ary of Corrections, to the pro se civil rights

complaint filed by Alfonso Percy Pew ( Inmate ). The complaint seeks a declaratory

1 This matter was assigned to this panel before September 1, 2019, when Judge Simpson assumed the status of senior judge.2

judgment, injunctive relief, and monetary damages for Wetzel’s alleged violation of

Inmate’s constitutional rights. After revi ew, we sustain the preliminary objections

and dismiss the complaint.

On August 23, 2018, Inmate filed a complaint in the Court of Common

Pleas of Cumberland County (common pleas court) against Wetzel and numerous

other employees of the Department of Correc tions (Department) in their individual

and official capacities (collectively Department Respondents )

. 2 The complaint

averred that while Inmate was incarcerated at the State Correctional Institution at

Dallas (SCI

- Dallas), he was entitled to a vegan diet f or religious reasons. F or eight

days in October of 2016, however, Inmate was given bologna sandwiches that made

him sick. Complaint at 3 , ¶3. The complaint also averred that Department

Respondents have adopted a policy to feed bologna sandwiches to inmates in

medical observation rooms

. Inmate was repeatedly denied his vegan diet despite

filing grievances. Department Respondents were aware of the situation but made

“excuses such as prison lock down.” Complaint at 5, ¶ 6. The complaint further

averred that a corrections officer destroyed Inmate’s property in retaliation for a

complaint he filed under the Prison Rape Elimination Act of 2003

. 3 Department

Respondents refused to “properly investigate and compensate [ Inmate ] for [his]

personal property loss.” Complaint at 9, ¶16.

2 The named respondents are Shirley M. Smeal, Executive Deputy Secretary of Corrections; Steven Glunt, Regional Deputy Secretary of Cor rections; Marcia Noles, an official with the Department’s Bureau of Health Care Services; Ulrich Klemm, an official with the Department’s Bureau of

Treatment Services ; Tracey Smith, Director of the Department’s Religious Accommodation Committee; Superinten dent Mahally; Deputy Demming; Ronald Ott, the Department’s Food Service Manager ; Lieutenant Filipiak and Deputy John Doe

.
3 34 U.S.C. §§30301

- 30309

.3 Based upon the foregoing allegations, Inmate asserted a civil rights

action under 42 U.S.C. §1983 4 alleging violations of his rights under numerous

provision s of the Pennsylvania and United State s Constitutions

. 5 Inmate sought a

declaratory judgment t hat his constitutional rights were violated ; punitive and

compensatory damages from each Department Respondent; and an injunction

directing Department Respondents to serve him a vegan diet.

The commo n pleas court trans ferred t he matter to this Court pursuant

to Section 761(a)(1) of the Judicial Code, 42 Pa. C.S. §761(a)(1). 6 By order of

4 42 U.S.C. §1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, re gulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immuni ties secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress

....
5 Inmate asserted that Department Respondents violated his rights under the following provisions

o f the Pennsylvania Constitution: Article I, Section 1 (i nherent rights of mankind); Article I,

Section 3 (r eligious freedom); Article I, Section 7 (f reedom of press an d speech); Article I, Section

8 ( s ecurity from searches and seizures); and Article I, Section 13 (bails, fines and punishments).

PA. C ONST

. art

. I, §§1, 3, 7, 8, 13. Inmate alleged violations of his rights under the First

Amendment to t he United States Constitution (free exercise of religion) and the Eighth

Amendment to t he Uni ted States Constitution (p rohibition of c ruel and unusual punishments).

U.S. C ONST

. amend s . I, VIII.

6 Inmate filed a motion with this Court “ to fix jurisdiction and commen ce action, ” in which he

assert ed that the common pleas court rather than this Court has original jurisdiction over his claim for monetary damages. Application for Relief (10/19/2018). By order of November 1, 2018, this

Court denied Inmate’s motion. Section 761(a)(1) of the Judicial Code provides:

(a) General rule.

– The Commonwealth Court shall have original jurisdiction of all civil actions or proceedings:

(1) Against the Commonwealth government, including any official thereof, acting in his official capacity, except : (i) a ctions or proceedings in the nature of applications for a writ of habeas corpus or post

conviction relief not ancillary to proceedings within the appellate jurisdiction of the court;4

November 28, 2018, this Court dismissed Inmate’s complaint against all Department

Respondents

, except for Secretary Wetzel

, because Inmate had failed to serve the

complaint as required by Pennsylvania Rule of Appellate Procedu re 1514(c), P A

. R.A.P. 1514(c). Secretary Wetzel, the o nly remaining respondent, has filed

preliminary objections in the nature of a demurrer se eking to dismiss the complaint

in its entirety.

In ruling on preliminary objections, this Court “must accept as true all

well pleaded material allegations in the petition for review, as well as all inferences

(ii) e minent domain proceedings;

(iii) a ctions or proceedings conducted pursuant to Chapter 85 (relating to matters affecting government units);

(iv) a ctions or p roceedings conducted pursuant to the act of May 20, 1937 (P.L. 728, No. 193), referred to as the Board of Claims Act; and

(v) a ctions or proceedings in the nature of trespass as to which the Commonwealth government formerly enjoyed sovereign or other immunity and actions or proceedings in the nature of assumpsit relating to such actions or proceedings in the nature of trespass.

42 Pa. C.S. §761(a)(1) (emphasis added)

. Our Supreme Court has held that this Court lacks original jurisdiction over tort actions for monetary damages that are premised on either common law trespass or a civil action for deprivation of civil rights under 42 U.S.C. §1983, because they are within the exclusion found in Section 761(a)(1)(v). Balshy v. Rank , 490 A.2d 415 (Pa. 1985).

Howev er, this Court has original jurisdiction over actions for injunctive and declaratory relief because they are not actions “as to which the Commonwealth government formerly enjoyed sovereign or other immunity.” 42 Pa. C.S. §761(a)(1) (v) ; Fawber v. Cohen , 53 2 A.2d 429, 433 (Pa. 1987). Further, to the extent prescribed by general rule, this Court has ancillary jurisdiction over any claim that is related to a claim within its exclusive original jurisdiction. 42 Pa. C.S. §761( c). See also Diess v. Department of Transportation , 935 A.2d 895 (Pa. Cmwlth. 2007) (where alleged statutory violations and equity claims outweighed allegations of common law nuisance, Section 761(c) of the Judicial Code vests this Court with ancillary jur isdiction to hear the matter). T hus, even though this Court would not normally have jurisdiction over Inmate’s claim for monetary damages , we do in this case because i t is ancillary to Inmate’s requests for injunctive and declaratory relief

.5

reasonably deduced therefrom.” Buoncuore v. Pennsylvania Game Commission

, 830 A.2d 660, 661 (Pa. Cmwlth. 2003). We are not required to accept as true

“conclusions of law, unwarranted inferences from facts, argumentative allegations,

or expressions of opinion.” Id

. For this Court to sustain prelim inary objections, “it

must appear with certainty that the law will permit no recovery[.]” McCord v.

Pennsylvania Gaming Control Board , 9 A.3d 1216, 1219 (Pa. Cmwlth. 2010). If

there is any doubt, this Court should overrule the preliminary objections. Id

. This

Court “ may sustain a demurrer only when a petitioner has failed to state a claim for

which relief may be granted.” Armstrong County Memorial Hospital v. Department

of Public Welfare , 67 A.3d 160, 170 (Pa. Cmwlth. 2013).

Section 1983 provides a re medy for deprivations of f ederally protected

rights committed by persons acting under color of state law. In order to state a claim

under Section 1983, a plaintiff must (1) allege a violation of rights secured by the

United States Constitution o r the laws of the United States and (2) show t hat t he

alleged deprivation was committed by a person acting under the color of state law.

Owens v. Shannon , 808 A.2d 607, 609 n.6 (Pa. Cmwlth. 2002). Notably, Section

1983 damage actions against state officials in their official capacity are barred

because a suit against a state official acting in his or her official capacity constitutes

a suit against the state itself, which is not a “person” under Section 1983. Watkins

v. Department of Corrections , 196 A.3d 272, 275 (Pa. Cmwlth. 2018) (quoting Will

v. Michigan Department of State Police , 491 U.S. 58, 64

- 71 (1989)). Nevertheless

,

a state official acting in his or her official capacity, when sued for injunctive relief,

is a “ person ” under Section 1983 because “offi cial

- capacity actions for prospective

relief are not treated as an action against the state.” Verrichia v. Department of

Revenue , 639 A.2d 957, 962 n.11 (Pa. Cmwlth. 1994). Further, state officials “ may6

be sued in their individual capacities and found li able for damages for violating

protected rights while in the course of their employment. ” Schnupp v. Port Authority

of Allegheny County , 710 A.2d 1235, 1238 n.4 (Pa. Cmwlth. 1998). Finally, a claim

for monetary damages to remedy a violation of constituti onal rights cannot be based

on vicarious liability or respondeat superior ; to state such a cause of action against

a government official under Section 1983, the plaintiff must allege that the

individual defendant was personally involved in the alleged wron gdoings. Watkins

,
196 A.3d at 276.

In his complaint

, Inmate does not allege any specific wrongdoings

perpetrated upon him by Secretary Wetzel. The complaint avers that Wetzel,

together with the other Department Respondents, adopted a policy that inmate s

housed in medical observation rooms would receive bologna sandwiches. It avers

that Wetzel was aware of Inmate ’s diet restrictions but did not take action

. The

grievance att ached to the complaint indicates , however, that Inmate started to receive

his vegan diet on October 20, 2016, after the “medical and officer in [the medical

observation room]” was informed of the issue. Complaint, Exhibit 1 . T he complaint

does not identify Inmate’s religious affiliation nor does it allege t hat Wetzel was

personal ly involved in denying Inmate a vegan diet. Likewise, the complaint does

not allege that Wetzel was personally involved in destroying Inmate’s personal

property in retaliation for his complaint under the Prison Ra p e Elimination Act. In

short

, Inmate’s conclusory complaint fails to specify how Wetzel infringed on his

free exercise of religion or any other rights secured by the United States and

Pennsylvania Constitutions. To the extent Inmate seeks to hold Wetzel vicarious ly

liable for the actions of his subordinates , his claim must be dismissed. Watkins , 196

A.3d at 276.7 In sum, Inmate has failed to allege any specific acts on the part of

Wetzel that, if accepted as true, would establish his liability or entitle Inmate to the

rel ief that he seeks. Because the complaint does not state a legally cognizable cause
of action against Wetzel, we sustain Wetzel’s preliminary objections in the nature of

a demurrer and dismiss Inmate’s complaint with prejudice.

________ _____________________________ MARY HANNAH LEAVITT, President JudgeI N THE COMMONWEALTH COURT OF PENNSYLVANIA

Alfonso Percy Pew, : Petitioner :

:

v. : No. 581 M.D. 2018

: John E. Wetzel, Secretary of Corrections, : Shirley M. Smeal, Executive Deputy : Secretary of Corrections, Steven Glunt, : Regional Deputy Secretary of Corrections, : Marcia Noles, Bureau Health Care Service : Department of Corrections, Ulrich Klemm, : Bureau Treatment Services Department of : Corrections, Tracey Smith, Director Religious : Accommodation Committee Department of : Corrections, Mahally, Superintendent PA. D.O.C., : Demming, Deputy PA. D.O.C., Ronald Ott, : Food Service Manager Pennsylvania : Department of Corrections, Lt. Filipiak, : Pennsylvania Department of Corrections, : John Doe, Deputy Pennsylvania Department : of Correct ions, Sued in individual and official : capacities for monetary damages, : Respondents :

O R D E R

AND NOW, this 21 st day of November , 2019, the preliminary

objections in the nature of a demurrer to the complaint filed by Alfonso Percy Pew

are SU STAINED, and the complaint is DISMISSED with prejudice.

_____________________________________ MARY HANNAH LEAVITT, President Judge