IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shawn Freemore, :

Petitioner :

:

v. : No. 489 M.D. 2019

: Submitted: January 10 , 2020

Department of Corrections, ; Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY PRESIDENT JUDGE LEAVITT FILED: May 6, 2020

Before this Court are the preliminary objections in the nature of a

demurrer filed by the Pennsylvania Department of Corrections (Department) to a

petition for review filed pro se by Shawn Freemore in this Court’s original

jurisdiction. For the reasons that follow, we sustain the Department’s preliminary

objections and dismiss Freemore’s petition for review

.

At the time he filed the subject petition for review, Freemore was

incarcerated at the State Correctional Institution (SCI) at Houtzdale. The petition

avers that the Department created a security processing center (Center) to check ma il

and publications “for drugs,” which is operated without direction from a Department

policy or procedur e. Petition ¶1. C ertain publications expected by Freemore were

delayed “by weeks and months, or mysteriously never [] delivered.” Petition ¶2.

Freemore asserts that the Department’s failure to have a policy to govern the Center

is a violation of his rights guaranteed under the First Amendment to the United States2

Constitution, 1 his due process rights, and “the laws of this Commonwealth requiring

the [Department] to have policy backed by law.” Petition ¶9. Freemore contends

that the Center’s operation is not rationally connected to a legitimate government

interest because drugs are not “entering the prison through publications coming

directly fro m the publishers.” Petition ¶12. A “ready alternative,” according to

Freemore, is to let each SCI facility process mail

, as it did before the Center was

created

. Petition ¶15.

Freemore claims that he has exhausted the administrative remedies

available through the Department. He requests this Court to order the Department

to “cease and desist use of the [Center] and return to previous operational procedures

of sending publications directly to the SCI facility” or create a policy “to include

concrete an d prompt timeframes” for processing publications at the Center. Petition

¶17.

The Department filed preliminary objections seeking a dismissal of

Freemore’s petition on the basis of legal insufficiency of the pleading (demurrer). 2

The Department asserts t hat the petition did not aver how the loss or delay of

publications infringed upon Freemore’s constitutional rights. The Department

asserts that it is not required to develop a written policy on the Center ’s operations

.

Even so, a policy does not create enforceable rights.

In ruling on preliminary objections, we accept as true all well

- pleaded

material allegations in the petition for review and any reasonable inferences that we

may draw from the averments. Meier v. Maleski

, 648 A.2d 595, 600 (Pa. Cmwlth.

1 It states in pertinent part : “Congress shall make no law

... abridging the fre edom of speech, or of

the press... .” U.S. C ONST . amend. I.

2 Pennsylvania Rule of Civil Procedure No. 1028(a)(4) provides that “[p]reliminary objections

may be filed by any party to any pleading and are lim ited to the following grounds: ... legal

insufficienc y of a pleading (demurrer) [

. ] ” P A

. R.C.P. N O

. 1028(a)(4).3

1994). The Court, however, is not bound by legal conclusions, unwarranted

inferences from facts, argumentative allegations, or expressions of opinion

encompassed in the petition for review. Id

. We may sustain preliminary objections

only when the law makes clear that the petitioner cannot succeed on the claim, and

we must resolve any doubt in favor of the petitioner. Id. “We review preliminary

objections in the nature of a demurrer under the above guidelines and 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).

In determining whether the petition states a constitutional claim, we

look f irst to see whether the inmate has alleged an infringement of a constitutional

right. Brown v. Pennsylvania Department of Corrections

, 932 A.2d 316, 318 (Pa.

Cmwlth. 2007). If so, we then determine whether that infringement “rises to the

level of a const itutional violation, given the specialized standard of review applied

to prison regulations and practices.” Id

.

An inmate “retains those First Amendment rights that are not

inconsistent with his status as a prisoner or with the legitimate penological objectives

of the corrections system.” Pell v. Procunier

, 417 U.S. 817, 822 (1974). “[W]hen

a prison regulation impinges on inmates’ constitutional rights, the regulation is valid

if it is reasonably related to legitimate penological interests.” Smith v. Beard

, 26

A.3 d 551, 557 (Pa. Cmwlth. 2011) (q uoting Turner v. Safley

, 482 U.S. 78, 84

- 85

(1987)). We are mindful that c ourts “must accord substantial deference to the

professional judgment of prison administrators, who bear a significant responsibility

for defining the legitimate goals of a corrections system and for determining the most4

appropriate means to accomplish them.” Smith

, 26 A.3d at 557 (quoting Overton v.

Bazzetta

, 539 U.S. 126, 132 (2003)).

The Department has promulgated a regulation on inmate

correspondence. It provides

, in pertinent part

, as follows :

(g) Incoming Publications.

(1) A publication review committee consisting of

staff designated by and reporting to the facility

manager or a designee shall determine whether an

inmate may receiv e a publication.

(2) Publications shall be received directly from a

publisher, bookstore, book club, distributor or

department store. Newspaper s shall be mailed

directly from the publisher.

(3) Publications may not be received by an inmate

if they:

(i) Contain inform ation regarding

the manufacture of explosives,

incendiaries, weapons, escape devices,

poisons, drugs or intoxicatin g

beverages or other contraband.

(ii) Advocate, assist or are evidence

of criminal activity, inmate

misconduct, violence, insurrection or

guerrill a warfare against the

government.

(iii) Threaten the security of a facility.

(iv) Contain nudity, obscene material

or explicit sexual materials as defined

in subsection (i).5 (v) Constitute a bulk mailing

specifically intended for the purpose of

advertising or selling merchandise.

37 Pa. Code § 93.2(g). T he Department ’s r egulation do es not guarantee inmates free

access to publications; r ather, a publication review committee determine s whether

an inmate may receive a publication. 37 Pa. Code § 93.2(g)(1).

Given the factual averments in Freemore’s petition, we agree with the

Department that they do not state a constitutional claim

. The petition avers that

Freemore’s publications have been delayed and at times not delivered after the

Department began to process publications at the Center. However, the petition does

not identify the specific types of publications that the Department did not deliver to

Freemore

. C erta in p ublications listed in 37 Pa. Code § 93.2(g)(3) may not be

accessible to an inmate. Freemore’s petition does not allege that the Department, in

processing the incoming publications at the Center, has failed to follow its

regulations or that the regulations have violated Freemore’s constitutional rights.

We conclude that the petition does not assert specific facts that would

raise a legally sufficient constitutional or statutory claim. As such, we sustain the

Department’s preliminary objections to the petition.

_______________________________ Mary Hannah Leavitt, President JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shawn Freemore, :

Petitioner :

:

v. : No. 489 M.D. 2019

: Department of Corrections, : Respondent :

O R D E R

AND NOW, this 6 th day of May, 2020, it is ordered that the preliminary

objections in the nature of a demurrer

, filed by the Pennsylvania Department of

Corrections in the above

- captioned matter

, are hereby SUSTAINED and Petitioner

Shawn Freemore’s petition for review is DISMISSED WITH PREJUDICE

.

______________________________ Mary Hannah Leavitt, President Judge