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 LEAVITT, 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’ 

(Department) 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

On August 21, 2018, Holmes was charged with misconduct number 

DO44470 (Misconduct) for possession of a dangerous or controlled substance. See 

Petition ¶8, Ex. A. Prior to the issuance of the Misconduct, Holmes had been 

residing in the Honor Block at the State Correctional Institution at Forest. See 

Petition ¶2. After the issuance of the Misconduct, Holmes was held in pre-hearing 

confinement until his Misconduct hearing on August 24, 2018. See Petition ¶13. 

After the hearing, Holmes was found guilty of the charge and sanctioned to 60 days 
2

in the Restricted Housing Unit (RHU). See Petition ¶25. Holmes appealed, and the 

Program Review Committee (PRC) upheld the Misconduct. See Petition ¶¶34, 38. 

Holmes further appealed to the Superintendent who also upheld the Misconduct. See 

Petition ¶¶43, 45. Finally, Holmes appealed to the Office of the Chief Hearing 

Examiner which, on December 10, 2018, vacated the Misconduct and remanded the 

matter with leave to refile the charge. See Petition ¶¶49, 51. The charge was never 

refiled. See Petition ¶53. 

Due to the Misconduct, 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 Misconduct 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 Misconduct violated 

Holmes’ rights under the United States (U.S.) and Pennsylvania Constitutions; (2) an 

injunction directing the Department to remove the Misconduct from Holmes’ 

institutional 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; and (6) compensatory damages. See Petition at 22-23. On April 18, 2019, 

the Department filed its Preliminary Objections, alleging: (1) this Court lacks 

jurisdiction over this matter; (2) intentional tort claims are barred by sovereign 
3

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:

In ruling on preliminary 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 objection 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. Cmwlth. 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 defense is clearly applicable on the face of the 

Petition.

2

42 Pa.C.S. §§ 6601-6608.

3 Based on this 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 waived. 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. Redevelopment 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, Holmes did not file a 

preliminary objection, answer or reply to the Department’s Preliminary Objections. 

Accordingly, this 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 Procedures, 

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 Preliminary Objection, 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 placing him in the RHU for 60 

days, then to a step-down unit for another 54 days, and denying 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.” 

Brown v. Pa. Dep’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

Preliminary Objection is sustained.

The Department next argues that Holmes’ intentional tort claims are 

barred by sovereign immunity and must be dismissed. 

Holmes is claiming emotional and psychological damage due to the 

Department’s actions. To the extent 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 protected by 

sovereign immunity from the imposition of liability for intentional tort claims.” 

LaFrankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992). Here, Holmes did 

not name any individual Department employees who may have caused him alleged 

emotional 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 Policy and requested 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 challenged, inter alia, the Department’s decision to place 

him under restrictions for 30 days as part of his misconduct. 
6

Since the Department employees were acting within the scope of their duties with 

respect to the Misconduct, any claims against them would be barred by sovereign 

immunity. Accordingly, this Preliminary Objection is sustained.

The Department next contends that Holmes is barred by the PLRA from 

recovering compensatory damages for mental and emotional injuries, and by the 

Pennsylvania Constitution 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 

Commonwealth 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.--

Prison 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 the 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 correctional 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. Moreover, to the extent Holmes is 

seeking any damages under the Pennsylvania Constitution, “[t]o date, neither 

Pennsylvania statutory authority, nor appellate case law has authorized the award of 

monetary damages for a violation of the Pennsylvania Constitution.” Jones v. City of 

Phila., 890 A.2d 1188, 1208 (Pa. Cmwlth. 2006). Accordingly, this Preliminary 

Objection 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 was a due process violation, “[t]he requirements of procedural 

due process apply only to the deprivation of interests encompassed by the Fourteenth 

Amendment’s protection 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.” Singleton v. Lavan, 834 A.2d 672, 675 (Pa. Cmwlth. 

2003). Thus, although Holmes does not specifically allege that his due process rights 

had been violated, it is evident that his placement in the general population does not 

violate 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 an

injunction ordering the Department to return him from the general population to the 

Honor Block. Accordingly, this Preliminary Objection 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). Accordingly, 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 interests.’ 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 permit prisoners to remain in the general population when they are charged 

with less serious offenses. The United States Supreme Court 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 the 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 Misconduct Policy, this Preliminary Objection is sustained. 

 

Conclusion

Because it appears with certainty, based on the allegations in the 

Petition, 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, Judge
IN 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, 2020, the Pennsylvania 

Department of Corrections’ Preliminary Objections to Darell Holmes’ (Holmes) pro 

se petition for review in the nature of a complaint for declaratory judgment and 

injunctive relief (Petition) are SUSTAINED, and Holmes’ Petition is DISMISSED.

___________________________

ANNE E. COVEY, Judge