IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Martin, :

Petitioner :

:

v. : No. 136 M .D. 20 1 5 : Submitted: Nove mber 20 , 20 1 5 Secretary John E. Wetzel, : Superintendent James A. Eckard, :

Respondent s :

BEFORE: HONORABLE DAN PELLEGRIN I, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY PRESIDENT J UDGE PELLEGRINI FILED: December 15, 2015

Before this court in our original jurisdictio n are preliminary objections in

the nature of a demurrer filed by John E. Wetzel (Wetzel) , Secretary of the

Department of Corrections (Department) and James A. Eckard (Eckard)

, Superintendent of SCI

- Huntingdon

, (collectively, Prison Officials ) in response to a

pro se petition for review filed by David Martin (Martin) challenging his placement

in a type of restrictive housing units, now or in the future. 1

1 Martin was preclud ed from filing a brief.2

In his petition for review, Martin alleges that he was moved from SCI

Huntingdon’s general population to the Restrictive Housing Unit (RHU) for fighting

and refusing to ob ey an order. He avers that he was continuously, unlawfully

confined within the RHU under administrative custody status, despite his many

appeals to Eckard and a hearing examiner to be re leased into the general population

.
Martin claims that his unlawful confinement has resulted in a violation of his

Fourteenth Amendment right to due process and has impeded his ability to partake in

rehabilitative programs to earn parole consideration.

Martin also avers in his petition that Eckard and others wished to send

him to the Security Threat Group Management Unit (STGMU)

, 2 which is regulated

2 Martin alleges in his petition for review:

15. On January 13, 2015, Respondent Eckard signed [Martin’s] DC

141 part IV along with his subordinates who failed to identify themselves by way of signature or initials to substantiate their statement for supporting [Martin] being sent to the [ STGMU ].

16. [Eckard] and his subordinates made their decision a day before [Martin’s] scheduled review (1/14/15) thus denying him a challenge
of the reason for the referral to a SUB

- RH4 that is N OT mentioned in any available policy such as the DC

- ADM 801 or DC

- ADM 802.

17. [Martin] promptly appeal[ed] to Respondent Eckard who responded on January 26, 2015 stating in part: “I did review their decisions; however, there is no indication my review t ook place prior
to 1/14/15.” The record discredits his statements which is done intentionally to falsify documents and misrepresent facts.

18. [Martin] filed a final level appeal to the Chief Hearing Examiner Robin M. Lewis who concurred with the [Progra m Review Committee] and Respondent Eckard on February 19, 2015 and only stated that the [STGMU] referral has not yet been approved. (Footnote continued on next page...)3

by an unlawful policy established by Wetzel without the required public notice and

comment period and in v iolation of the Commonwealth Documents Law (Documents

Law) 3 and the Regulatory Review Act (Review Act)

. 4

Martin asks this C ourt for a preliminary and permanent injunction

preventing the Prison Officials from transferring him to STGMU

, and prohibiting the

Prison Officials ’ “agents, successors in interest and all other persons in active concert

or participation with them from harassing, threatening, punishing or retaliating

against [Martin] because of this action or against any person who submitted a[n]

aff idavit in this case on behalf of [Martin].” (Petition for Review at 8.) He also

requests that this Court grant him: 1) concurrent/supplemental jurisdiction for his

federal constitutional money claim; 2) costs for legal filings and attorney fees; and 3)
compensatory damages in the amount of $5,000.00 jointly and severally against each

and every Prison Official

.

(continued...)

19. [Martin] believes and therefore avers that Respondent Eckard is utilizing the referral process to cause [Martin] anxiet y f r om isolation
within the RHU.

(Petition for Review at 4.)

3 Act of July 31, 1968, P.L. 769, as amended , 45 P.S. §§ 1102

- 1602, and 45 Pa. C.S. §§ 501

- 907, which, collectively, are known as the “Commonwealth Documents Law.” This was the official
short ti tle of the 1968 enactment. See Section 101 of the Act of July 31, 1968, P.L. 769.

4 Act of June 25, 1982, P.L. 633, as amended , 71 P.S. §§745.1

- 745.15.4

T he Prison Officials filed the instant preliminary objections in the nature

of a demurrer 5 contending that Martin has failed to set forth a caus e of action because

he has not articulated a liberty interest to which any process is due pursuant to the

Fourteenth Amendment because he has no right to be housed at a particular custody

level or within a particular housing unit . Moreover, t hey argue tha t Martin has no

right to receive a particular rehabilitative program that may lead to a favorable parole

determination from the Board of Probation and Parole because parole is nothing more

than a possibility

, and a prisoner has no protected liberty interes t in being released

from confinement prior to the expiration of his term.

The Prison Officials also argue that Martin does not have standing to

raise the claim that STGMU was established unlawfully as he is not housed there

. Regardless, they argue that the policy which implemented the STGMU is exempt

from the Documents Law and Review Act because it is a security policy that deals

entirely with internal prison management decisions with no impact on the general

public as its purpose is to “ house and provid e programming to inmates who exhibit

certain behavior in connection with their affiliation with a Security Threat Group.”

(Preliminary Objections at 8.)

5 In ruling upon preliminary objections in the nature of a demurrer, the Court must accept as
true al l well

- pled facts and all reasonable inferences therefrom, and it must determine whether the facts pled are legally sufficient to permit the action to continue. Karnes v. Attorney General of Pennsylvania , 921 A.2d 591 (Pa. Cmwlth. 2007). For the Court to sustain preliminary objections, it must appear with certainty that the law will permit no recovery, and all doubt must be resolved in favor of refusing to sustain the objections. Baravordeh v. Borough Council of Prospect Park , 706 A.2d 362 (Pa. Cmwlth. 1 998).5

In ascertaining whether a due process violation has occurred, “a

determination must initially be mad e that a protected liberty interest exists and, if so,

what process is due.” Wilder v. Department of Corrections , 673 A.2d 30 , 32 (Pa.

Cmwlth.), appeal denied , 681 A.2d 1344 ( Pa. 1996). A prisoner has no protected

liberty interest to be housed at any par ticular custody level. Chem v. Horn , 725 A.2d

226, 229 (Pa. Cmwlth. 1999). Furthermore, confinement in an RHU does not violate

due process rights as segregated confinement does not impose an atypical, significant

deprivation as compared to ordinary priso n life. Singleton v. Lavan , 834 A.2d 6 72,

675

- 76 (Pa. Cmwlth. 2003). Because Martin does not have a protected right to be

housed at any particular custody level, there has not been a due process violation with

regard to his housing status.

With regard to Martin’s claim that his continued housing within RHU

prevented him from participating in programs that would earn him parole and

violated his due process rights, “a prisoner has no constitutionally protected liberty

interest in being released from confi nement prior to the expiration of his maximum

term of sentence.” Evans v. Pennsylvania Board of Probation and Parole , 820 A.2d

904, 913 (Pa. Cmwlth. 2003). Rather, “ parole is nothing more than a possibility, and

if granted, it merely constitutes a favor given by the state, as a matter of grace and

mercy, to a prisoner who has demonstrated a probability of his or her ability to

function as a law

- abiding citizen in society.” Id (citations omitted). Martin’s ability,

or lack thereof, to participate in prog rams that could potentially expedite parole is not

a protected liberty interest because parole is not a protected liberty interest. Thus , his

confinement within RHU is not in violation of his due process rights.6

T he Prison Officials assert that Martin d oes not have standing to raise

the claim that STGMU was established unlawfully pursuant to the Documents Law

and Review Act as he is not housed within STGMU. An individual who is not

“adversely affected in any way by the matter he seeks to challenge is no t ‘aggrieved’

thereby and has no standing to obtain a judicial resolution of his challenge.” William

Penn Parking Garage, Inc. v. City of Pittsburgh , 346 A.2d 269, 280

- 81 (Pa. 1975).

Furthermore, “it is not sufficient for the person claiming to be ‘aggri eved’ to assert

the common interest of all citizens in procuring obedience to the law.” Id.

Regardless of Martin’s allegations that Eckard and others support moving him to

STGMU, he is currently not housed within STGMU and

, therefore

, not ad versely

affec ted by STGMU or its founding policy. As a result, he lacks standing to bring

this claim.

In any case, t he Documents Law’s and Review Act’s procedures must be

followed whenever an administrative agency issues binding regulations. Small v.

Horn , 722 A.2d 664, 668

- 69 (Pa. 1998). Accordingly, “the first step in analyzing

whether a cause of action has been stated with respect to the Documents Law or

Review A ct is to determine if the [directives] are in fact ‘regulations’ for purposes of

those acts or if the y are ... mere ‘policy amendments’ or ‘internal management

decisions.’” Id. at 669. Only those directives that “concern the interaction of

[Department] inmates and employees with the community at large” must be

published. Bundy v. Beard , 924 A.2d 723, 727 (Pa. Cmwlth. 2007).

Our Supreme Court explained:7

Because of the unique nature and requirements of the prison setting, imprisonment ‘carries with it the circumscription or loss of many significant rights ... to accommodate a myriad of institutional need s ... chief among which is internal security. Accordingly, the Department must enforce reasonable rules of internal prison management to ensure public safety and prison security. These rules must be modified as conditions change, different security needs arise, and experience brings to light weaknesses in current security measures. Where, as here, the measure has at most an incidental effect on the general public, it is reasonable to conclude that the Legislature did not intend the measure to be subjecte d to the ‘normal [public] participation process.’

Small , 722 A.2d at 669

- 70 (citations omitted). Given that the purpose of SGMTU is

to house inmates who requir e extra security measures, the policy is within the realm

of SCI

- Huntingdon’s internal managem ent decisions with

, at most

, an incidental

impact on the general public. As such , Martin’s argument that the establishment of

STGMU violates the Documents Law and Review Act because it was established

without a public notice and comment period is without merit.

Accordingly, the Prison Officials ’ preliminary objections in the nature of

a demurrer are sustained and Martin’s petition for review is dismissed.

__________________________________ DAN PELLEGRINI, President JudgeIN THE COMMONWEALTH C OURT OF PENNSYLVANIA

David Martin, :

Petitioner :

:

v. : No. 136 M .D. 201 5

: Secretary John E. Wetzel, : Superintendent James A. Eckard, :

Respondent s :

O R D E R

AND NOW, this 15 th day of December , 2015, the preliminary objecti ons
filed by Secretary John E. Wetzel and Superintendent James A. Eckard are sustained

and the petition for review filed by David Martin is hereby dismissed.

__________________________________ DAN PELLEGRINI, President Judge