IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kevin Williams , :

Petitioner :

: No. 31 M .D. 201 7
v. : : Submitted: June 2 , 201 7 Pa. Dep t. of Corr’s, et al., at : SCI

- Forest, Medical Depart., : and Security Office, :

Respondent s :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: September 5, 2017

Before this Court in our original jurisdiction are the preliminary objections filed by the Department of Corrections (Department) to the petition for review (Petition ) filed by Kevin Williams , a / k / a Kirby Stewart ( hereafter, Williams)

. We sustain the Department’s objections and d ismiss Williams’ P etition.

Background On January 26, 2017, Williams, an inmate at the State Correctional Institution at Forest (SCI

- Forest), filed his Petition against the Department, asking this Court to compel the Department to order MRIs for his should er and knees, return confiscated personal items, and change his living arrangements. (Petition, ¶11

- 14.)2

Specifically, Williams averred that o n October 8, 2014, he went to the
medical unit in SCI

- Forest complaining of problems with his knees, including a “popping” sound when he climbed up to his top bunk. (Petition, ¶5.) The physician
ordered an x

- ray of Williams’ knees, and , upon review of the x

- rays , determined that
there were no significant findings. Id. Williams wrote several request slips
challen ging the medical unit’s examination of his knees. Id. The medical unit gave
W illiams ibuprofen for his knees. However, Williams was dissatisfied and filed an internal grievance seeking an examination by a specialist, a n MRI, or a CAT scan , all of which were denied by the Department. Id.

On October 23, 2015, Williams returned to the medical unit and sought
an examination of his left shoulder. (Petition, ¶8.) Williams told the medical staff that his left shoulder makes “clicking” noises when he move d it around. Id

. The
medical st aff examined his shoulder, and , as Williams alleges , told him he “probably [has] arthritis.” Id. Williams maintains that the word “probably” tells him that the
medical staff at SCI

- Forest does not know what is wrong with his shoulder; therefore,
h e wants a second opinion. Id. Williams filed an other internal grievance pertaining
to the medical treatment he received in relation to his left shoulder. T he grievance

w as denied by the Department. Id.

Williams now asks this Court to compel the Department to order MRIs for his knees and shoulder, give him permanent bottom bunk status, and provide him with pain medication. (Petition, ¶ ¶11, 13 .)

Additionally, Williams asks this Court t o compel the Department to
return to him various personal items that were confiscated while he was in the Restricted Housing Unit (RHU). (Petition, ¶6.) Williams alleges that , o n April 30, 2015, he was taken to the RHU in response to an investigation wit h his cellmate

. Id.3

D uring his time in the RHU, Williams filed two grievances

— one grievance concerning his confinement in the RHU and another relating to items that were confiscated during a cell search. Id. Both grievances were denied by the Departmen t. Id.

Further , Williams asks this Court to compel the Department to alter his housing arrangement. (Petition, ¶¶ 9

- 10 .) Specifically, Williams is unhappy that his cellmate smokes cigarettes. Id. at ¶9. Williams is not a smoker and does not want to
end ure secondhand smoke. Id. Williams states that, since his incarceration in 2000, he has only had four cellmates that did not smoke cigarettes. Id. Williams avers that he has a right to be in a smoke

- free environment. Id. at ¶10. He maintains that un less he is given a single cell, he will always be subjected to secondhand smoke

. Id.
Williams filed internal grievances about the smoke in his cell and asked for a single
cell. Id. T he Department denied his grievances and request for a single cell

. Id

. at ¶9. On January 26, 2017, Williams filed the present Pe tition against the Department

. (Petition, ¶ 1 .) On April 25, 2017, the Departmen t filed preliminary objections in the nature of a demurrer. 1 The Department noted that, while Williams
does not expressly state whether his Petition is in the nature of a mandamus, based on
the relief that Williams is requesting , the D epartment is responding as such

. (P reliminary O bjections , at 4 .) H owever, the Department avers that mandamus is not appropriat e to address Williams’ claims against the Department. Id. at 6. Rather , the

1 In ruling on preliminary objection s in the nature of a demurrer, this Court must accept as true all well

- pleaded material facts and all inferences reasonably deducible therefrom. Barndt v. Pennsylvania Department of Corrections, 902 A.2d 589, 592 (Pa. Cmwlth. 2006). However, this Court is not required to accept as true “conclusions of law, unwarranted inferences from the facts, argumentative allegations, or expressions of opinion.” Silo v. Ridge, 728 A. 2d 394, 398 (Pa. Cmwlth. 1999) ( citing Giffin v. Chronister, 616 A.2d 1070, 1072 (Pa. C mwlth. 1992) )

.4

Department argues that issues relating to medical challenges, confiscation of personal items, and housing arrangements are best left to the discretion of Department personnel wit h the professional expertise. I d. at 7. Accordingly, the Department
maintains that Williams’ Petition should be dismissed. Id. at 8.

After the Department filed its preliminary objections , Williams filed a
b rief in opposition

. In his brief, Williams maintains that , by not ordering MRIs and pain medication , the Department is acting deliberately indifferent to his medical
needs. (Petitioner’s Brief at 5.) He further contends that the Department violated his due process rights by confiscating his personal items. Id. at 6. Finally, Williams avers that he has a “right to be in a smoke

- free environment.” Id. at 8.

Discussion First, we must determine the nature of Williams’ action. While Williams
does not state whether this is a mandamus ac tion, the Department is correct that it
must be treated as such b ased on the relief requested. See Kretchmar v. Department of Corrections, 831 A.2d 793, 797 (Pa. Cmwlth. 2003) (where inmate sought to compel the Department to provide him with specific medi cation, his action was in the nature of mandamus)

. Williams asks this C ourt to compel the Department, a governmental agency, to take specific action by ordering MRIs, providing him with pain medication, returning certain personal items, and altering his h ousing situation. Accordingly, it is clear from Williams’ Petition that he is seeking a writ of mandamus; therefore, we will treat this action as such.

Initially, we note that “ [m] andamus is an extraordinary writ that compels performance of a ministeri al act or mandatory duty where there exists: (1) a clear legal right in the petition er ; (2) a corresponding duty in the respondent; and (3) an5

absence of any other adequate and appropriate remedy.” Buehl v. Beard, 54 A.3d 412, 416 (Pa. Cmwlth. 2012). Mandamus is only use d to protect righ ts that are already established and cannot be used as the basis to establish rights. Id. Further, a court cannot “direct the manner in which an official performs a discretionary
function.” Id. As the Supreme Court e xplained:

The writ cannot be used to control the exercise of discretion or judgment by a public official or administrative or judicial tribunal; to review or compel the undoing of an action taken by such an official or tribunal in good faith and in the exercise of legitimate jurisdiction, even though the decision was wrong; to influence or coerce a particular determination of the issue involved; or to perform the function of an appeal or writ of error. Pennsylvania D ental Association v. Insurance Department, 516 A.2d 647, 652 (Pa. 1986) (emphasis added).

Medical Treatment

Williams maintains that the Department has violat ed his right to medical treatment under the Eighth Amendment by being deliberately indifferent t o his proscribed medical needs. T he Department avers that Williams’ challenge to the adequacy of the medical treatment does not rise to the level of deliberate indifference. (P reliminary O bjections at 11.)

The Eighth Amendment, in relevant part, prohibits the infliction of “cruel and unusual punishment.” U.S. C ONST . amend. VIII. The United States Supreme Court has interpreted this Amendment to mean that inmates are required to receive adequate medical care

. See Estelle v. Gamble, 429 U.S. 97, 103

- 05 (1976) ( c iting U.S. C ONST . a mend. VIII )

. Specifically, t he United States Supreme Court has held that “deliberate indifference to serious medical needs of prisoners constitutes the6

‘unnecessary and wanton infli ction of pain,’ proscribed by the Eighth Amendment.”
Id. at 104 (i nternal citations omitted).

In Estelle v. Gamble, an inmate instituted a civil action against prison officials, including the chief medical officer, alleging that the prison officials viol ated the cruel and unusual punishment clause of the Eighth Amendment by not providing proper medical treatment after the inmate injured his back while fulfilling a prison work assignment. 429 U.S. at 98. Within a three

- month period, the inmate was

treate d by the medical staff on seventeen occasions. Id. at 10 7 . The medical staff diagnosed the inmate’s injury as a lower back strain and ordered bed rest, muscle relaxants, and pain relieve r s. Id. However, the inmate maintained that more should
have been done, including the taking of x

- ray s

. Id. The United States Supreme Court determined that the medical professionals’ decision to not order “an x

- ray , or like measures, does not represent cruel and unusual punishment.” Id.

The deliberate indifference standard of the Eighth Amendment contains an objective element and a subjective element. See Kretchma r , 831 A.2d at 798. The objective element is met when the deprivation suffered by the inmate is “objectively, ‘sufficiently s erious

. . . . ’” Id. (quoting Framer v. Brennan, 511 U.S. 825, 834 (1994) ) . As the United States Supreme Court held, to be sufficiently serious , “a prison official’s act or omission must result in the denial of the minimal civilized
measure of life’s nece ssities.” Framer, 511 U.S. at 834 (internal quotation marks omitted) . The subjective element of a deliberate indifference claim requires prison personnel to have acted with a “sufficiently culpable state of mind.” Id

. (internal quotation marks omitted)

. A prison official cannot be found liable for deliberate indifference unless “the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference7

could be drawn that a subst antial risk of serious harm exists, and he must also draw the inference.” Id. at 837.

However, c ourts will not find deliberate indifference when an inmate receives medical attention, but simply disagrees with the medical professionals’
course of treatmen t. See Baez v. Department of Corrections (Pa. Cmwlth., No. 311
M .D. 2013, slip op. at 4 , filed March 18, 2014)

. In Baez , an inmate diagnosed with systemic lupus erythematosus filed a p etition asking this Court to compel the Department of Corrections to send him to a gastroenterologist and a chronic pain specialist. Id ., slip op. at 1. The inmate alleged that the Department’s refusal to send him to these specialists amounted to deliberate indifference. Id. This Court opined
that t he deliberate indiffe re nce test gives great deference to prison medical authorities and their professional course of treatment for the inmat es

. Id ., slip op. at 3. While the
inmate did receive extensive medical treatment , the inmate was “attempting to mandate a particular cou rse of treatment.” Id ., slip op. at 4. Accordingly, this Court held that the inmate’s challenge to the adequacy of the medical treatment that he received within the prison did not rise to the level of deliberate indifference. Id.

Here, Williams does not allege that h e was not seen by medical staff. Instead, he maintains that the physicians who examined him did not prescribe an appropriate course of treatment

. Williams was seen by physicians within SCI

- Forest on multiple occasions for his knees and shoul ders. During his first visit to the medical unit, the physician ordered an x

- ray on Williams’ knees. After the physician
examined the x

- ray , he found that there were no abnormalities; however, Williams disagreed with the physician’s medical findings. La ter, when Williams went to the medical unit again, the staff determined that no further x

- rays were needed, and that8

Williams most likely had arthritis, a determination with which Williams was
dissatisfied. Williams has been treated for the pain in his shoulders and knees; however, he is attempting to dictate his own course of treatment. C ourts will repudiate any attempts to undermine or question the adequacy of treatment conducted by medical professionals which “remains a question of sound professiona l judgment.”
Kretchmar

, 831 A.2 d at 799 ( internal quotation marks omitted) (opining that an
inmate ’ s denial for specific allergy medication was best left in the sound professional judgment of medical professionals). Williams ’ course of treatment involved examinations by physicians in SCI

- Forest and diagnostic tests, including x

- ray s

. Williams ’ complaint goes to the adequacy of the treatment he received, which remains a question of sound professional judgment.

As a matter of law, Williams cannot show th at he has a clear right to the relief he requests. Accordingly, the fact that the Department did not follow the
course of treatment that W illiams advances as appropriate does not rise to the level of
an issuance of a writ of mandamus.

Right to Smoke

- Free Environment Next, Williams asks this Court to compel the Department to move him to a single cell because his current cellmate smokes between 35 and 40 cigarettes a day. Williams maintains that he has a right to be in a smoke

- free environment, and that he will only have a smoke

- free environment if he does not have a cellmate. (Petition, ¶10 .) The Department avers that the Eighth Amendment neither require s that inmates live in a single cell n or provide s an inmate with the right to choose his cell9

accommodations. (P reliminary O bjections , at 1 4

. ) The Department states that courts should be hesitant to interfere with “the orderly administration of the state prison system and should give broad deference to prison officials in runni ng prisons.” (Brief for Respondent s , at 13) (citing to Sandin v. Conner , 515 U.S. 472, 482 (1995); Bell v. Wolfish , 441 U.S. 520, 547 (1979) ) . Further, the Department notes that prison personnel have broad discretion in deciding the housing arrangements for inmates. Ultimately, the Department maintains that SCI

- Forest personnel determined that Williams needs a cellmate, and this Court “should not substitute [its] judgment f or that of the [Department ’s ].” ( P reliminary O bjections , at 14.)

Williams maintains that he has a right to be in a smoke

- free
environment. However, Williams does not cite, and our research has not discovered,
any c ase law expressing an explicit right to be in a smoke

- free environment. Notwithstanding, a cause of action does exist under the Eighth Amendment when an inmate alleges that “prison officials have exposed him with delib erate indifference to
levels of [ e nvironmental t obacco s moke] that pose an u nreasonable risk of harm to his future health.” Johnson v. Lightcap , (Pa. Cmwlth., No. 467 C .D. 2008, filed July 11, 2008) (citing Helling v. McKinney, 509 U.S. 25 , 34

- 35 (1993)).

In order to state a claim under the Eight h Amendment for deliberate
indifference to e nvironmental t obacco s moke ( ETS ) exposure, an inmate must satisfy
the two

- part test set forth in Helling . First, the inmate must prove that he was exposed to “unreasonably high levels of ETS.” Helling , 509 U.S. at 35. In determining whether the levels of ETS are unr easonably high, the court must inquire

“ into the seriousness of the potential harm and the likelihood that such an injury to health will actually be caused by exposure to ETS .” Id

. at 36. Additional ly, a court will also consider whether society would consider the risk of harm due to ETS smoke10

so grave “that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Id.

In hi s Petition, Williams failed to aver any facts regarding his level of exposure to the ETS, any current or long

- term health problems related to t his
exposure , or how this exposure violates contemporary standards of decency

. While this Court understands the generalized health risks of second

- hand smoke, Williams
has not presented sufficient information to allow this Court to determine whether the Department is violating the Eighth Amendment by failing to provide Williams wit h a single cell. This Court finds that there is no clear right to issue a writ of mandamus here due to the lack of information provided by Williams , in conjunction with the Department’s broad discretion in housing arrangements. 2

Due Process
Williams al leges that the Department personnel confiscated photographs, a Panasonic Walkman, Sony earbuds, a headphone extension wire, Ray Ban sunglasses, and food items from his cell. (Petition, ¶6.) After Williams’ items were confiscated, he filed grievances with in SCI

- Forest to have his items returned . The Security Office provided Williams with a list o f confiscated items but determined that Williams could not repossess these items w h il e he was incarcerated due to Department policy. Williams maintains that the Department deprived him of his personal property. Further, Williams avers that there is “no post deprivation remedy”

2 Williams also alleges that the Department tampered with his mail as well as confiscated legal paperwork; however, he does not elaborate on either one of these accusations. Accordingly, this Court cannot properly evaluate the cause of acti on or the remedy due, if any.11

in the prison “because every grievance is in favor of [the Department]

. . . . ” ( Petitioner ’s Brief at 6. )

The Department avers that Williams does not have an absolute right to all of the confiscated items because prisons can limit the type and quantity of items an inmate can possess. (P reliminary O bjections at 12

. )

The Fourteenth Amendment provides that “[n]o State shall

. . . deprive any person of life, liberty, or property, without due process of law.” U.S. C ONST

. amend . XIV , § 1. Nevertheless, c ourts have repeatedly held that the internal prison grievance system is an adequate post

- deprivation remedy under the due proc ess clause

. See Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 422 (3 d Cir. 2000). A n inmate’s dismay at the outcome of the grievance process does not render the process inadequate. Further, “[r]easonable prison regulations regarding the quantity and type of property that inmates may possess do not violate due process guarantees.” Small v. Horn , 722 A.2d 664, 671 (Pa. 1998). See Bell, 441 U.S. at
554 (noting that prisoners' due process rights with respect to possession of property

are no t absolute, but are “subject to reasonable limitation or retraction in light of the legitimate security concerns of the institution”)

.

After Williams was denied access to the items that were taken from his cell, Williams utilized the prison grievance system to contest the confiscation. The Department’s internal griev ance system is an adequate post

- deprivation remedy. Accordingly, Williams has not stated a clear right to possess the confiscated items; therefore, an issuance of a writ of mandamus is no t proper.12 Conclusion For the foregoing reasons, we sustain the Department’s preliminary objections and dismiss Williams ’ Petition.

________________________________ PATRICIA A. McCULLOUGH, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kevin Williams, :

Petitioner :

: No. 31 M.D. 2017
v. : : Pa. Dept. of Corr’s, et al., at : SCI

- Forest, Medical Depart., : and Security Office, :

Respondent s :

ORDER

AND NOW, this 5 th day of September , 2017, the preliminary objections filed by the Department of Corrections are hereby sustained and the petition for review filed by Kevin Williams, a / k / a Kirby Stewart , is dismissed.

________________________________ PATRICIA A. McCULLOUGH, Judge