IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darell Holmes, :

Petitioner :

:
v. : : Pennsylvania Department : of Corrections, : No. 143 M.D. 2019

Respondent : Submitted: November 1, 2019

BEFORE: HONORABLE MARY HANNAH LEAVI TT , President Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE CHRISTINE FIZZANO CANNON , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY FILED: February 3, 2020

Before this Court are the Pennsylvania Department of Corrections’ (Depa rtment) preliminary objections (Preliminary Objections) to Darell Holmes’ (Holmes) pro se petition for review in the nature of a complaint for declaratory judgment and injunctive relief (Petition) filed in this Court’s original jurisdiction. After review, we sustain the Preliminary Objections and dismiss the Petition.

Background
O n August 21, 2018 , Holmes was charged with misconduct number DO44470 (Misconduct) for possession of a dangerous or controlled substance. See
Petition ¶8 , Ex. A

. P rior to the issuance of the M isconduct , Holmes had been residing i n the Honor Block at the State Correctional Institution at Forest. See Petition ¶2

. After the issuance of the M isconduct, Holmes was held in pre

- hearing
confinement until his M isconduct hearing on Aug ust 24, 2018. See Petition ¶13. After the hearing, Holmes was found guilty of the charge and sanctioned to 60 days2

in the Restricted Housing Unit ( RHU). See Petition ¶25. Holmes appealed , and the Program Review Committee (PRC) upheld the M isconduct. S ee Petition ¶¶34, 38.
Holmes further appealed to the Superintendent who also upheld the Misconduct

. See Petition ¶¶43, 45. Finally, H olmes appealed to the Office of the Chief Hearing
Examiner which, on December 10, 2018 , vacated the M isconduct and reman ded the matter with leave to refile the charge. See Petition ¶¶ 49, 51. The charge was never
refiled. See Petition ¶53.

D ue to the M isconduct, Holmes remained in the RHU for 60 days and then in a step

- down unit for another 54 days. See Petition ¶65. Holmes was also denied contact visits for 90 days. See Petition ¶40. The Department returned Holmes to general population on December 11, 2018, the day after the M isconduct was
vacated.

Facts

On March 11, 2019, Holmes filed the Petition seeking: (1) a declaration that the Department’s acts and omissions with respect to the M isconduct violated Holmes’ rights under the United States (U.S.) and Pennsylvania Constitutions; (2) an injunction directin g the Department to remove the M isconduct from Holmes’
i nstitutional file; (3) an injunction directing the Department to return Holmes to his

status as it existed before the Misconduct was filed ; (4) an injunction directing the Department to reestablish its Misconduct Policy ( DC

- ADM

- 801 ); (5) nominal damages; a nd (6) compensatory damages

. See Petition at 22

- 23. On April 18, 201 9 , the Department filed its Preliminary Objections , alleging: (1) this C ourt lacks jurisdiction over this matter; (2) intentional tor t claims are barred by sovereign3

immunity; 1 (3) the Prison Litigation Reform Act (PLRA) 2 bars Holmes’ claim for compensatory damages; (4) Holmes’ allegations do not support a claim for punitive damages ; 3 and (5) Holmes does not state a due process claim.

Discussion
The law is well settled :
I n ruling on p reliminary objections, we must accept as true all well

- pleaded material allegations in the petition for review, as well as all inferences reasonably deduced therefrom. The Court need not accept as true conclusions of law, unwarranted inferences from facts , argumentative allegations, or expressions of opinion. In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery , and any doubt should be resolved by a refusal to sustain them. A preliminary objectio n in the nature of a demurrer admits every well

- pleaded fact in the [petition for review in the nature of a] complaint and all inferences reasonably deducible therefrom. It tests the legal sufficiency of the challenged pleadings and will be sustained only in cases where the pleader has clearly failed to state a claim for which relief can be granted. When ruling on a demurrer, a court must confine its analysis to the [ petition for review in the nature of a ] complaint

. Torres v. Beard , 997 A.2d 1242, 1245 ( Pa. Cmwlth. 2010) (emphasis added; citations omitted). “[C]ourts reviewing preliminary objections may not only consider the facts pled in the complaint, but also any documents or exhibits attached to it.” Allen v. Dep’t of Corr.
, 103 A.3d 365, 369 (Pa. C mwlth. 2014).

1 “Pennsylvania courts

. . . have allowed parties to plead the affirmative defense of immunity

as a preliminary objection where the defense is clearly applicable on the face of the complaint.” Mazur v. Cuthbert , 186 A.3d 490, 497 (Pa. Cmwlth. 2018) (quoting Feldman v. Hoffman , 107 A.3d 821, 829 (Pa. Cmwlth. 2014) ) . Here, the immunity d efense is clearly applicable on the face of the Petition.

2 42 Pa. C.S. §§ 6601

- 6608

. 3 Based on t his Court’s review of the Petition
, Holmes is not seeking punitive damages.4 Here, in response to Holmes’ request for an injunction directing the Department to remove the Misconduct from his institutional file , the Department attached a record of the Misconduct Exoneration to its Preliminary Objections as
Exhibit B. In asserting th [is] fact [] , which [is] not apparent on the face

of the Petition, [the Department has] filed an improper

‘ speaking demurrer

. ’ Barndt v. Dep [ ’t ] of Corr [.] , 902 A.2d 589, 591 n.2 (Pa. Cmwlth. 2006). However, [Holmes] did not file preliminary objections challenging the procedural propriety of [the Department’s] Preliminary Objection; accordingly, that issue is waiv ed. See Dep [ ’t ] of Justice v. Knox , . . . 370 A.2d 1238, 1240 n.4 (Pa. Cmwlth. 1977) (holding that, when objected to , ‘speaking demurrers’ should not be considered) (citing Brennan v. Smith , . . . 299 A.2d 683 (Pa. Cmwlth. 1972)) ; Pa. R.C.P. No. 1032( a) (stating, inter alia , that a party waives all objections which are not presented by preliminary objection, answer, or reply).

Tucker v. Beard (Pa. Cmwlth. No. 359 M.D. 2010, filed January 4, 2011) , slip op. at 4 n.2; see also Colonial Sur. Co. v. Redeve lopment Auth. of the County of Fayette (Pa. Cmwlth. No. 859 C.D. 2016, filed July 25, 2017) 4 (petitioner cannot claim that the trial court erred in considering anything outside the petition because petitioner did not object to the respondent’s preliminary objections). Here, Ho l mes did not file a preliminary objection, answer or reply to the Department’s Preliminary Objections. Accordingly, t his Court holds that based on the Misconduct Exoneration, Holmes’ request for an injunction directing the Department to remove the Misconduct from his
institutional file is now moot.

4 Pursuant to Section 414 (a) of the Commonwealth Court Internal Operating Procedure s, unreported opinions of a panel of the Commonwealth Court, if issued after January 15, 2008, may be cited for persuasive value , but not as binding precedent. 210 Pa. Code § 69.414(a)

.5 In its first P reliminary O bjection , the Department asserts that , to the extent Holmes is challenging the initial and mid

- level Misconduct review, this Court lacks jurisdiction.

Holmes challenges the Department’s plac ing him in the RHU for 60 days , then to a step

- down unit for another 54 days , and den y ing him contact visits for 90 days as a result of his Misconduct

. “ This Court and our Pennsylvania Supreme Court have previously held that [the Department’s] decision [s] concerning charges of misconduct against an inmate are beyond this Court’ s

. . . original jurisdiction .”
B rown v. Pa. D ep’t of Corr. , 913 A.2d 301, 305 (Pa. Cmwlth. 2006). 5 Accordingly, this Court has no authority to address this claim and the Department’s first
P reliminary O bjection is sustained.

The Department next argue s that Holmes’ intentional tort claims are barred by sovereign immunity and must be dismissed

.

Holmes is claiming emotional and psychologica l damage due to the Department ’s actions . To the exten t Holmes is asserting an intentional tort claim , “[t] his Court has held that when an employee of a Commonwealth agency was acting within the scope of his or her duties, the Commonwealth employee is prot ected by sovereign immunity from the imposition of liability for intentional tort claims .”
LaFrankie v. Miklich , 618 A.2d 1145, 1149 (Pa. C mwlth. 1992). Here, Holmes did not name any individual Department employees who may have caused him alleged
emotion al and psychological damage , nor did he allege that the issuance of the Misconduct and subsequent procedures were not within the Department employees’ scope of duties

. To the contrary, Holmes alleged that the Department followed its
current Misconduct Pol icy and request ed this Court to reissue a modified Misconduct Policy limiting pre

- hearing confinement to specified misconduct. See Petition at 22.

5 In Brown , as here, the petitioner challenge d, inter alia , the Depa rtment’s decision to place him under restrictions for 30 days as part of his misconduct.6

S ince the Department employees were acting within the scope of their dut i es with respect to the Misconduct, any claims against them would be barred by sovereign immunity. Accordingly, this P reliminary O bjection is sustained

.

The Department next contends that Holmes is barred by the PLRA from recovering compensatory damages for mental and emotional injuries , a nd by the Pennsylvania C onstitution from recovering any damages

.

Initially, Section 6603 of the PLRA provides , in relevant part: (a) Limitations on remedies for [ f ] ederal claims.

-- Prison conditions litigation filed in or remanded to a court of this Comm onwealth alleging in whole or in part a violation of [f] ederal law shall be subject to any limitations on remedies established by [f] ederal law or [f] ederal courts with respect to the [f] ederal claims. (b) Limitations on remedies under Pennsylvania law.

-- P rison conditions litigation arising in whole or in part due to an allegation of a violation of Pennsylvania law shall be subject to the limitations set forth in this act with respect to those claims arising under Pennsylvania law.

42 Pa. C.S. § 6603. To th e extent Holmes is seeking compensatory damages for mental and emotional injuries under federal law, Section 1997e(e) of the United
States Code mandates: “ No [f] ederal civil action may be brought by a prisoner confined in a jail, prison, or other correctio nal facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the
commission of a sexual act . . . .” 42 U.S.C. § 1997e(e). Here, Holmes has not alleged a prior physical injury or a sexual act. More over, t o the extent Holmes is seeking any damages under the Pennsylvania C onstitution, “ [t] o date, neither Pennsylvania statutory authority, nor appellate case law has authorized the award of monetary damages for a violation of the Pennsylvania Constitutio n .” Jones v. City of
Phila

. , 890 A

. 2d 1188, 1208 (Pa. Cmwlth. 2006). Accordingly, this P reliminary
O bjection is sustained.7 The Department next objects to Holmes’ Petition because Holmes’ allegations cannot support a due process claim as a matter of law.

To the extent that Holmes claims the Department ’s failure to return him

to the Honor Block wa s a due process violation, “[t] he requirements of procedural due process apply only to the deprivation of interests encompas sed by the Fourteenth
Amendment’ s pro tection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount .” Bd. of Regents of
State Colls

. v. Roth , 408 U.S. 564, 569 (1972).

“ The [c] ourts of this Commonwealth and the [f] ederal [c] ourts have consistently held that prison officials have the authority to determine where a prisoner
should be housed [,] and that the [d] ue [p] rocess [c] lause imposes few restrictions on the use of that authority. ” Singlet on v. Lavan , 834 A.2d 672, 675 (Pa. Cmwlth.
2003 )

. Thus, although Holmes does not specifically allege that his due process rights
ha d been violated, it is evident that his placement in the general population does not

v iolate his due process rights. Therefore, Holmes has failed to state a due process claim upon which relief can be granted. As such, Holmes would not be entitled to a n injunction ordering the Department to return him from the general population to the
Hon or Block. Accordingly, this P reliminary O bjection is sustained.

Finally, with respect to Holmes’ request for an injunction to stop the Department from using its current misconduct policy ( and reissue a modified policy allowing prisoners to remain in the general population for minor offenses ) , the Department argues that such request is not within the province of the courts because
it is a matter of prison administration. Specifically,

[t] he United States Supreme Court generally defers to the judgment of prison officials in upholding regulations against constitutional challenge, because the problems of American prisons are complex and intractable ones with which the courts are ill equipped to deal

. Shaw v.8 Murphy , 532 U.S. 223, 229

. . . (2001)

. Accordin gly, it employs a ‘ unitary, deferential standard ’ in reviewing prisoners ’ constitutional claims. Id. ‘ When a prison regulation impinges on inmates ’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological inter ests. ’ Id. (quoting Turner v. Safley , 482 U.S. 78, 89

. . . (1987) )

. Bronson v. Horn , 830 A. 2d 1092, 1095 (Pa. Cmwlth. 2003) , aff’d , 848 A.2d 917 (Pa. 2004) (emphasis added)

.

Here, Holmes claims the Department should modify its misconduct policy to per mit prisoners to remain in the general population when they are charged
with less serious offenses. The United States Supreme C ourt has instructed that “[w] e 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 most appropriate means to accomplish them [,]” and “[t] he burden

. . . is not on the [s] tate to prove the validity of prison regulations but on t he prisoner to disprove it

. ” Overton v. Bazzetta , 539 U.S. 126, 132 (2003). Because Holmes’ allegations do not disprove the validity of the Department’s current M isconduct P olicy, this P reliminary O bjection is sustained.

Conclusion
Because i t appea rs with certainty , based on the allegations in the
P etition , that the law will not permit the relief requested therein , Holmes cannot establish a clear legal right to relief . Accordingly, the Department’s Preliminary Objections are sustained , and Holmes’ Petition is dismissed.

___________________________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darell Holmes, :

Petitioner :

:
v. : : Pennsylvania Department : of Corrections, : No. 143 M.D. 2019

Respondent :

O R D E R

AND NOW, this 3 rd day of February , 20 20 , the Pennsylvania Department of Corrections’ P reliminary O bjections to Darell Holmes’ (Holmes) pro se petition for review in the nature of a complaint for declaratory judgment and inj unctive relief (Petition) are SUSTAINED , and Holmes’ Petition is DISMISSED.

___________________________ ANNE E. COVEY, Judge