IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kyle Rainey, :

Appellant :

:

v. :

:

Kevin Ransom, Richardo Contreras, :

Jasen Bohinski, Frank Depiero, : No. 528 C.D. 2023

Michael Goyne, and Richard Keller : Submitted: June 6, 2024

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: July 11, 2024

Kyle Rainey (Rainey), pro se, appeals from the October 28, 2022 order 

of the Court of Common Pleas of Luzerne County (trial court) granting a motion to 

dismiss filed by Appellees1 and dismissing Rainey’s petition for writ of habeas 

corpus (Petition).

2

 Upon review, we affirm.

1 Appellees include Kevin Ransom, Superintendent of the State Correctional Institution at 

Dallas; Jasen Bohinski, Deputy Superintendent; Richardo Contreras, Deputy Superintendent; 

Frank Depiero, Unit Manager; Michael Goyne, “Major of Unit Managers”; and Richard Keller, 

Counselor. See Petition for Writ of Habeas Corpus (Petition), Cover Page; Appellees’ Br. at 4.

2 Rainey filed a second petition for a writ of habeas corpus on June 21, 2022. Original 

Record (O.R.), Petition for Writ of Habeas Corpus, 6/21/22. The second petition consists of a 

standard form for petitions for writs of habeas corpus, in which Rainey merely referenced an 

attachment (the Petition). See id. at 5. As the second petition did not add substantively to Rainey’s 

request, and for the sake of concision, Rainey’s requests for habeas corpus relief are collectively 

referred to herein as the “Petition.” See id. 
2

I. Background

In February 2022, Rainey, an inmate at the State Correctional 

Institution at Dallas, after refusing an order to move to a “double cell,” received a 

misconduct and was placed in disciplinary custody in the “RHU” (restricted housing 

unit).3 See Original Record (O.R.), Petition at 2-3. In March 2022, Rainey’s status 

was reduced to “cell restriction.” See id. at 3. However, Rainey again refused to 

move to a “double cell,” received another misconduct and was returned to the 

restricted housing unit. See id. Also in March 2022, Rainey requested “AC” status4

Rainey requested and was granted permission to proceed in forma pauperis on May 20, 

2022. See O.R., Br. in Supp. of Mot. to Dismiss, 7/20/22 at 1. 

3

“RHU” presumably refers to the Restricted Housing Unit, which is 

[a] special housing unit in the facility that provides a safe and secure 

setting for inmates placed in Disciplinary Custody for up to 90 days 

per misconduct charge when found guilty of Class 1 misconduct. 

The Restricted Housing Unit . . . includes Administrative Custody, 

a separate special non-disciplinary housing providing closer 

supervision, control and protection for inmates.

See Commonly Used Terms in Prisons, PENNSYLVANIA COALITION AGAINST RAPE, available at 

https://pcar.org/sites/default/files/resource-pdfs/prea_commonly_used_terms_in_prisons.pdf (last 

visited July 10, 2024). An inmate in the Restricted Housing Unit is afforded only limited periods 

of time outside of his or her cell. See Testimony of the Deputy Secretary of the Pennsylvania 

Department of Corrections before the House Judiciary Committee, August 2, 2010, available at

https://www.legis.state.pa.us/WU01/LI/TR/Transcripts/2010_0123_0001_TSTMNY.pdf (last 

visited July 10, 2024). 

4 AC status presumably refers to “Administrative Custody (AC) status,” which may be 

utilized for inmates “whose presence in general population would constitute a threat to life, 

property, himself/herself, staff, other inmates, the public or the secure or orderly running 

of the facility.” See Understanding DOC Administrative Policies, available at

https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/Understanding-DOCAdministrative-Policies.pdf (last visited July 10, 2024).
3

due to his “PREA5 abuse in juv[enile placement] and trauma.” See id. Rainey’s 

request was denied. See id. Rainey averred that he was on the “mental health roster”

at this time and that he was placed on “suicide watch” from March 7, 2022 to March 

8, 2022. See id. at 4. 

On May 20, 2022, Rainey filed his Petition with the trial court, asserting 

that Appellees violated the guarantee against cruel and unusual punishment set forth 

in the Eighth Amendment to the United States Constitution.

6 See O.R., Petition at 

2-6 (citing Rivera v. Pa. Dep’t of Corr., 837 A.2d 525 (Pa. Super. 2003)).7 Rainey 

did not identify with precision the basis for his constitutional claim, instead generally 

asserting that “the trauma and emotional infliction that [Appellees were] putting on 

[him constituted] cruel and unusual punishment.” Id. at 6. Rainey insisted that 

“staff should take into consideration . . . [his] op[inion] regarding his[] own safety.” 

Id. at 4.8 In light of the allegations set forth in the Petition, it appears that Rainey’s 

5 Rainey presumably refers to the Prison Rape Elimination Act, 34 U.S.C. §§ 30301-30309.

6 Rainey also stated in the preamble to his Petition that Appellees violated the “due process 

and equal protection of the laws under the Pennsylvania Constitution[,] [a]rticle[ I], [s]ect[ions] 8, 

13 and 26 and the . . . [Fourteenth] Amendment[] to the United States [Constitution.]” O.R., 

Petition at 1. 

7

“Although Superior Court cases are not binding on this Court, such cases may offer 

persuasive precedent where they address analogous issues.” Goshen Valley III Condo. Ass’n v. 

Messick, 299 A.3d 1064, 1067 n.3 (Pa. Cmwlth. 2023) (citing Commonwealth v. Monsanto Co., 

269 A.3d 623, 679 n.20 (Pa. Cmwlth. 2021)).

8 Rainey stated that 

alternative placements can include, but are not limited to, anyone, 

or combination of, the following temporary options:

a. moving to a different housing unit;
4

request for habeas corpus relief stems from the denial of his request to be housed 

without a cellmate and his placement in the restricted housing unit. See id. at 2-6. 

Rainey requested a hearing, an immediate emergency transfer to the State 

Correctional Institution at Chester and “Z-Code”9status. O.R., Petition at 6. Rainey 

also requested that the trial court hold Appellees liable for his attorney fees and costs, 

and $100,000 in damages for emotional and mental stress. See id.

Appellees filed an answer and a motion to dismiss pursuant to Section

6602(e)(2) of the Prison Litigation Reform Act (PLRA),

10 42 Pa.C.S. § 6602(e)(2).11

 

b. placement in a cell closer to the corrections officer’s desk 

within the unit;

c. placement in a single cell and 

d. placement in the Special Needs Unit (SNU).

O.R., Petition at 4. 

9

“Z-Code” status apparently indicates single-cell classification. See Frankenberry v. 

Ferguson (Pa. Cmwlth., No. 105 C.D. 2017, filed July 12, 2017), slip op. at 2.

10 42 Pa.C.S. §§ 6601-6608.

11 Section 6602(e) of the PLRA provides, in relevant part:

(e) Dismissal of litigation.--Notwithstanding any filing fee which 

has been paid, the court shall dismiss prison conditions litigation at 

any time, including prior to service on the defendant, if the court 

determines any of the following:

(1) The allegation of indigency is untrue.

(2) The prison conditions litigation is frivolous or malicious 

or fails to state a claim upon which relief may be granted or 

the defendant is entitled to assert a valid affirmative defense, 

including immunity, which, if asserted, would preclude the 

relief.
5

Trial Ct. Op., 2/15/23 at 1. Appellees requested dismissal on the basis that Rainey

was not housed in a “double cell” at the time he sought habeas corpus relief and that 

he failed to state a claim that the conditions of his confinement amount to cruel and 

unusual punishment.12 O.R., Br. in Supp. of Mot. to Dismiss, 7/20/22 at 4. 

On August 11, 2022, the trial court held a hearing. Trial Ct. Op., 

2/15/23 at 1. By order dated October 28, 2022, the trial court granted Appellees’ 

motion and dismissed Rainey’s Petition. Id. 

Rainey appealed to this Court, and the trial court directed him to file a 

concise statement of errors complained of on appeal (concise statement) pursuant to 

Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure (Appellate Rules), 

Pa.R.A.P. 1925(b). Trial Ct. Op., 2/15/23 at 1. In January 2023, Rainey filed his 

42 Pa.C.S. § 6602(e) (emphasis added). Section 6601 of the PLRA defines the term “prison 

conditions litigation” as 

[a] civil proceeding arising in whole or in part under Federal or State 

law with respect to the conditions of confinement or the effects of 

actions by a government party on the life of an individual confined 

in prison. The term includes an appeal. The term does not include

criminal proceedings or habeas corpus proceedings challenging the 

fact or duration of confinement in prison.

42 Pa.C.S. § 6601 (emphasis added). “Thus, a trial court cannot dismiss ‘prison conditions 

litigation’ . . . when the proceeding involves a criminal matter or habeas corpus petition 

challenging the fact or duration of confinement in prison[.]” Pew v. Mechling, 929 A.2d 1214, 

1217 (Pa. Cmwlth. 2007) (citing Section 6601 of the PLRA, 42 Pa.C.S. § 6601) (italics added). 

Here, Rainey’s Petition does not challenge the fact or duration of confinement, but rather the 

conditions of his confinement, i.e., his transfer to the restricted housing unit and later to a cell with 

a cellmate. 

12 Appellees also sought dismissal of the Petition as moot, asserting that Rainey has been 

housed in a “single cell” since May 5, 2022. O.R., Br. in Supp. of Mot. to Dismiss, 7/20/22 at 3 

(citing Mistich v. Pa. Bd. of Prob. & Parole, 863 A.2d 116 (Pa. Cmwlth. 2004)). Rainey presently 

contends that a cellmate was transferred to his cell on December 22, 2022. See Rainey’s Br. at 4; 

see also O.R., Concise Statement of Errors Complained of on Appeal, 1/17/23 at 2. 
6

concise statement, raising the following questions: (i) whether Appellees’ counsel, 

Brian Platt, Esquire, committed fraud upon the court by representing in his filing and 

at oral argument on August 11, 2022 that Rainey has been in single-cell status 

housing since May 5, 2022; (ii) whether Rainey was placed in imminent danger on 

December 22, 2022 when Appellees placed another inmate in his cell despite his 

PREA status; and (iii) whether he is entitled to compensatory damages on the basis 

that he was subjected to cruel and unusual punishment under the Eighth Amendment 

to the United States Constitution when he was denied “self-lock up” and 

“administrat[ive] custody” status and received 75 days’ “DC-time”13 and five 

misconducts. O.R., Concise Statement, 1/17/23 at 1-2. 

On February 15, 2023, the trial court filed an opinion pursuant to 

Appellate Rule 1925(a), “conclud[ing] that [Rainey’s] conditions of confinement did 

not constitute ‘cruel and unusual punishment’ such that habeas relief could be 

granted and, accordingly, dismissed [his] Petition pursuant to [Section 6602(e)(2) of 

the PLRA,] 42 Pa.C.S. § 6602(e)(2).” Trial Ct. Op., 2/15/23 at 2 (citing 

Commonwealth ex rel. Fortune v. Dragovich, 792 A.2d 1257 (Pa. Super. 2002); 

Frankenberry v. Ferguson (Pa. Cmwlth., No. 105 C.D. 2017, filed July 12, 2017)).14 

Further, the trial court observed that Rainey himself acknowledged at the August 11, 

2022 hearing that he was no longer in the “RHU” but in a “double cell” with no 

cellmate. Id. at 1-2. 

13 DC time presumably refers to time spent in disciplinary custody. See DC-ADM 801, 

Inamte Discipline Procedures Manual, Dep’t of Corr. Policy Statement, Section 4(B)(4)(a), 

available at https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/801%20Inmate

%20Discipline.pdf (last visited July 10, 2024).

14 Unreported memorandum opinions of this Court issued after January 15, 2008 may be 

cited for their persuasive value. See Section 414(a) of this Court’s Internal Operating Procedures 

210 Pa. Code § 69.414(a).
7

II. Issues

Before this Court,15 Rainey argues that Appellees placed him in 

imminent danger when they transferred another inmate to his cell on December 22, 

2022, despite his “PREA” status and his history of abuse and trauma. Rainey’s Br. 

at 4. Rainey alleges that Appellees had agreed to house him alone in either a single 

or a double cell. Id. Rainey acknowledges that on May 5, 2022, he was transferred 

from the “RHU” to a cell without a cellmate, but he contends that Appellees’ 

attorney committed a fraud upon the trial court by representing that “Rainey is and 

has been [in] single[-]cell status since May 5, 2022.” Id. at 4-5. Rainey maintains 

that he “made out his case under the [Eighth] Amendment against [Appellees],” as 

they “plac[ed] [him,] . . . an abused PREA victim[,] in the ‘RHU’ for (75) days, 

which bec[a]me a mental issue/condition.” Id. at 7 (quotation marks and hyphen 

omitted). Further, Rainey contends that this Court should “find [that he] could 

possibly be harmed based upon his [t]rauma, fears, and abuse, if placed in a double 

cell with another inmate[.]” Id. Rainey maintains that Appellees “knew or should 

have known” of a sufficient[ly] serious danger to [him].” Id. at 7 (quoting Young v. 

Quinland, 960 F.2d 351 (3d Cir. 1991)). Thus, Rainey contends that “[Appellees’] 

actions became cruel an[d] unusual” when they “[v]ictimiz[ed] a PREA victim like 

[himself] and add[ed] more trauma.” Id. at 8 (additional quotation marks omitted). 

Rainey asks this Court to “rescind” the decision of the trial court and 

remand this matter to the trial court “with direction to issue a Z-Code” and to “find 

that [Appellees violated his rights under the Eighth Amendment] by placing [him,] 

15 “Our review of the trial court’s decision is limited to determining whether constitutional 

rights were violated, whether the trial court abused its discretion, or whether the trial court 

committed an error of law.” Pew v. Mechling, 929 A.2d at 1217 (citation omitted) (reviewing a 

trial court order dismissing an inmate’s petition for a writ of habeas corpus).
8

an abused PREA victim[,] in the “RHU” for []75[] days.” Rainey’s Br. at 5 & 7

(hyphen omitted).

16

 Further, Rainey seeks compensatory damages on the basis of 

his “unconstitutional placement in the ‘RHU’” in the amount of $7,500, $100 for 

each of the 75 days spent in disciplinary custody in the restricted housing unit. Id. 

Moreover, Rainey maintains that he “is entitled to at least AC[]status.”17 Id. at 8. 

Appellees counter that the exercise of discretion by prison 

administrators over inmate housing is not reviewable in a habeas corpus proceeding. 

Appellees’ Br. at 7-8 (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981);

Meachum v. Fano, 427 U.S. 215, 224-26, 96 (1976); Tindell v. Dep’t of Corr., 87 

A.3d 1029, 1041 (Pa. Cmwlth. 2014); Fortune, 792 A.2d at 1259; Frankenberry, 

slip op. at 7-9). Appellees contend that Rainey received misconducts as a result of

his refusal to follow orders. Id. at 8-9. Further, Appellees contend that penological 

interests necessitated assigning Rainey’s single cell to an inmate with a higher level 

of need. Id. at 9. Moreover, Appellees assert that Rainey fails to establish that the 

“mere prospect[]” or “even an actual move to a double cell with a cellmate amounts 

to cruel and unusual punishment,” particularly where Rainey did not have a cellmate

at the time he filed his Petition or at the time of oral argument before the trial court. 

Id. at 9. Thus, Appellees maintain that Rainey failed to state a claim for habeas 

corpus relief because prison officials properly exercised discretion in assigning him 

to a particular prison cell. Id. at 10 (citing Rivera, 837 A.2d 525; Commonwealth ex 

rel. Ford v. Jeffes, 394 A.2d 1004 (Pa. Super. 1978)). 

Appellees also assert that a writ of habeas corpus is an extraordinary 

remedy that is available only after the petitioner has exhausted all other available 

16 Inconsistently, Rainey also requests that this Court “issue a Z-Code.” Rainey’s Br. at 7.

 

17 AC status presumably refers again to administrative custody status. See supra note 4.
9

remedies. Appellees’ Br. at 10 (citing Commonwealth v. Reese, 774 A.2d 1255 (Pa. 

Super. 2001)). Appellees maintain that Rainey should have first pursued relief by

filing suit under Title 42, Section 1983 of the United States Code, 42 U.S.C. § 1983.

18

 

Id. (citing Maute v. Frank, 670 A.2d 737 (Pa. Cmwlth. 1986)). 

III. Discussion

“Any judge of a court of record may issue the writ of habeas corpus to 

inquire into the cause of detention of any person or for any other lawful purpose.” 

Section 6502(a) of the Judicial Code, 42 Pa.C.S. § 6502(a). “The writ of habeas 

corpus is an extraordinary remedy that is available after other remedies have been 

exhausted or are ineffectual or nonexistent.” Dep’t of Corr. v. Reese, 774 A.2d 1255, 

1260 (Pa. Super. 2001) (citation omitted). Thus, “habeas corpus should not be 

entertained . . . merely to correct prison conditions which can be remedied through 

an appeal to prison authorities or to an administrative agency.” Commonwealth ex

rel. Bryant v. Hendrick, 280 A.2d 110, 113 (Pa. 1971). “[I]t is [not] the function of 

the courts to superintend the treatment and discipline of prisoners in penal 

institut[]ions. This is the responsibility of those in charge of the prison itself and 

those officers, both state and local, who are given supervisory powers.” Id.; see also 

18 Title 42, Section 1983 of the United States Code provides that

[e]very person who, under color of any statute, ordinance, 

regulation, custom, or usage, of any State or Territory or the District 

of Columbia, subjects, or causes to be subjected, any citizen of the 

United States or other person within the jurisdiction thereof to the 

deprivation of any rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party injured in an action 

at law, suit in equity, or other proper proceeding for redress[.]

42 U.S.C. § 1983.
10

Fortune, 792 A.2d at 1259 (citing Commonwealth ex rel. Tancemore v. Myers, 150 

A.2d 180, 182 (Pa. Super. 1959)) (stating that “the failure or refusal of prison 

authorities to exercise discretion in a particular way may not be reviewed in a habeas

corpus proceeding”). However, “habeas corpus is available to secure relief from 

conditions constituting cruel and unusual punishment, even though the detention 

itself is legal.” Bryant, 280 A.2d at 113 (holding that “where the conditions of the 

confinement are so cruel and callous . . . the courts may grant relief through habeas

corpus in order to protect the petitioner’s fundamental and basic rights”).

As the Supreme Court of the United States has explained,

a prison official violates the Eighth Amendment only 

when two requirements are met. First, the deprivation 

alleged must be, objectively, “sufficiently serious,” 

Wilson [v. Seiter], . . . 501 U.S.[ 294,] . . . 298 [(1991)]; 

see also Hudson v. McMillian, . . . 503 U.S.[ 1,] . . . 5 . . . 

[(1992)]; a prison official’s act or omission must result in 

the denial of “the minimal civilized measure of life’s 

necessities,” Rhodes[ v. Chapman,] 452 U.S. [337,] . . .

347 [(1981).] For a claim (like the one here) based on a 

failure to prevent harm, the inmate must show that he is 

incarcerated under conditions posing a substantial risk of 

serious harm. See Helling [v. McKinney,], . . . 509 U.S.

[25,] . . . 35 [(1993)].

The second requirement follows from the principle that 

“only the unnecessary and wanton infliction of pain 

implicates the Eighth Amendment.” Wilson . . . , 501 U.S.

[at] 297 . . . (internal quotation marks, emphasis, and 

citations omitted). To violate the Cruel and Unusual 

Punishments Clause [of the Eighth Amendment], a prison 

official must have a “sufficiently culpable state of mind.” 

Ibid.; see also id., at 302-[]03, . . . [;] Hudson . . . , [] 503 

U.S.[] at 8 . . . . In prison-conditions cases that state of 

mind is one of “deliberate indifference” to inmate health 

or safety, Wilson, [] 501 U.S.[] at 302-[]03, . . . [,] see also

Helling, [] 509 U.S.[] at 34-35, . . . ; Hudson . . . , [] 503 
11

U.S.[] at 5 . . . ; Estelle[ v. Gamble,] 429 U.S.[ 97,] 106

[1976].

Farmer v. Brennan, 511 U.S. 825, 832-34 (1994) (citations and footnote omitted).

Here, Rainey contends that Appellees violated the guarantee against 

cruel and unusual punishment secured in the Eighth Amendment to the United States 

Constitution by placing him in the restricted housing unit for 75 days without 

consideration for his status as an “abused PREA victim,” because his placement 

allegedly resulted in “a mental issue/condition.” Rainey’s Br. at 7 (quotation marks 

and hyphen omitted). “[D]etermining the constitutionality of prison conditions is a 

heavily fact-specific inquiry, where the particular characteristics of the prisoner 

raising the challenge are taken into consideration.” Clark v. Coupe, 55 F.4th 167, 

183 (3d Cir. 2022). Although he averred generally that he was a victim of prior 

abuse, that he was on the “mental health roster” and that he had been placed on 

“suicide watch” for roughly one day during his confinement in the restricted housing 

unit, Rainey failed to specify the “particular characteristics” that rendered him 

susceptible to harm or the ramifications of the complained-of placement. See O.R., 

Petition at 4. Moreover, Rainey did not elaborate on the nature of his confinement 

in the restricted housing unit, such as whether it involved being placed in isolation 

or the extent of disciplinary restrictions. Given the sparseness of Rainey’s

allegations, it is impossible to evaluate whether the purported “deprivation” was 

“sufficiently serious,” or whether the “conditions pos[ed] a substantial risk of serious 

harm” for purposes of his constitutional claim. See Farmer, 511 U.S. at 834. 

Further, Rainey did not allege that Appellees exhibited “deliberate indifference to 

[his] health or safety.” Id. (quotation marks omitted); cf. Clark, 55 F.4th at 183 

(holding that an inmate “put the [prison] officials’ conduct squarely in the purview 

of established Eighth Amendment law” by alleging that prison officials “imposed 
12

solitary confinement for months, knowing the isolation carried a substantial risk of 

exacerbating [the inmate’s] mental illnesses but keeping him there until he suffered 

serious harm”; although the inmate “was initially placed in [isolation] for a justified 

penological purpose,” his “increased incidents of hallucinations [and] selfmutilation resulting from the exacerbation of his schizophrenia and bi-polar disorder 

[could not] be deemed a legitimate part of his penalty for committing a disciplinary 

infraction”) (additional quotation marks omitted); see also Frankberry, slip op. at 

12-13 (agreeing with the trial court that “when viewed in the totality of the 

circumstances,” the inmate failed to state a claim of cruel and unusual punishment 

under the Eighth Amendment, where the inmate alleged that time spent in a “double 

cell” that was not sufficiently spacious caused “physical and mental suffering”).

Rainey also asserts that Appellees placed him in imminent danger by 

transferring a cellmate to his cell on December 22, 2022, despite his “PREA” status 

and his history of abuse and trauma. Rainey’s Br. at 4. The failure of prison officials 

“to control or separate prisoners who endanger the physical safety of other prisoners” 

may support a claim of cruel and unusual punishment under the Eighth Amendment. 

See Riley v. Jeffes, 777 F.2d 143, 145 (3d Cir. 1985) (citation omitted). However, 

Rainey did not allege that Appellees compromised his physical safety by placing 

him in a “double cell.” Rather, Rainey maintained that he “could possibly be harmed 

based upon his [t]rauma, fears, and abuse, if placed in a double cell with another 

inmate[.]” Rainey’s Br. at 7 (emphasis added).

19

 

19 Regarding Appellees’ contention that Rainey should have first pursued relief by filing 

suit under Section 1983, see Appellees’ Br. at 10, we note that “Eighth Amendment claims are 

overwhelmingly brought as civil rights actions under Section 1983.” Tindell v. Dep’t of Corr., 87 

A.3d 1029, 1040 n.12 (Pa. Cmwlth. 2014); see also Fortune, 792 A.2d at 1259-60 (citing Johnston

v. Lehman, 609 A.2d 880, 884 (Pa. Cmwlth. 1992)) (holding that although the exercise of 

discretion by prison officials in superintending the placement of prisoners is “not immune from 
13

Further, the narrow question of whether Appellees placed Rainey in 

“imminent danger” actually pertains to whether prison conditions litigation may 

withstand dismissal under the “three strikes” rule pursuant to Section 6602(f) of the 

PLRA, 42 Pa.C.S. § 6602(f). See Brown v. Beard, 11 A.3d 578, 580 (Pa. Cmwlth. 

2010) (explaining that “[w]here a prisoner has been deemed an abusive litigator” 

after “fil[ing] three prison condition lawsuits that are dismissed as frivolous,” and, 

thus, “loses the opportunity to proceed in forma pauperis,” “the prisoner can escape 

dismissal of his prison conditions litigation under the [“]three strikes[”] rule [set 

forth in Section 6602(f) of the PLRA, 42 Pa.C.S. § 6602(f),] only if he makes a 

credible allegation that he is in danger of imminent bodily harm and needs injunctive 

relief”).20

Moreover, “[r]egardless of whether [Rainey’s] allegations are true, they 

do not provide a cognizable basis for issuance of a writ of habeas corpus,” where 

those allegations “assert primarily that his grievance arises from prison officials’ 

judicial scrutiny, [it is] appropriately addressed in a claim of deprivation of constitutional rights 

under color of state law as prescribed by . . . 42 U.S.C. § 1983”).

20 Regardless, Rainey’s allegation that he “could possibly be harmed based upon his 

[t]rauma, fears, and abuse, if placed in a double cell with another inmate” does not rise to the level 

of “imminent danger” for purposes of Section 6602(f) of the PLRA, 42 Pa.C.S. § 6602(f). Rainey’s 

Br. at 7; see also Brown, 11 A.3d at 581 (quoting Commonwealth v. Capitolo, 498 A.2d 806, 809 

(Pa. 1985)) (explaining that “[t]o be imminent, the danger must be, or must reasonably appear to 

be, threatening to occur immediately, near at hand, and impending,” and affirming the trial court’s 

determination that an inmate failed to credibly allege that he was in imminent danger of serious 

bodily injury for purposes of Section 6602(f) of the PRLA, 42 Pa.C.S. § 6602(f), where the inmate 

asserted that “if [] sent back to [the previous correctional institution,] he might be subjected to the 

same treatment that he was allegedly subject to in 2008 and 2009, and that such treatment might 

aggravate his preexisting illnesses”); Lopez v. Haywood, 41 A.3d 184, 189 (Pa. Cmwlth. 2012) 

(affirming the trial court’s revocation of an inmate’s in forma pauperis status, concluding that the 

inmate’s “alleg[ation] that he was on the verge of a mental breakdown as a result of being housed 

with mentally ill prisoners in the [restricted housing unit]” did not establish imminent danger of 

serious bodily injury for purposes of Section 6602(f) of the PLRA, 42 Pa.C.S. § 6602(f)). 
14

exercise of discretion in superintending the placement of prisoners.” Fortune, 792 

A.2d at 1259 (citation omitted). As this Court has explained,

[u]nder state law, an inmate does not have the right to 

confinement in a housing unit of his choosing. 37 Pa. 

Code § 93.11(a); see Yount v. Dep’t of Corr., 966 A.2d 

1115, 1117 n.1 (Pa. 2009). Additionally, prison officials 

have discretion to transfer a prisoner for any reason or for 

no reason at all. Meachum v. Fano, 427 U.S. 215, 228 

(1976); Yount, 966 A.2d at 1117 n.1. When adopting and 

executing policies and practices, “prison officials must be 

accorded wide ranging deference,” as they are best 

situated to adopt solutions “that in their judgment are 

necessary to preserve internal order and to maintain 

institutional security.” Robson v. Biester, 420 A.2d 9, 12 

(Pa. Cmwlth. 1980) (citing Bell v. Wolfish, 441 U.S. 520 

(1979)). Federal law similarly holds that the placement of 

prisoners within the prison system falls within the “wide 

spectrum of discretionary actions that traditionally have 

been the business of prison administrators rather than the 

federal courts.” Meachum, 427 U.S. at 225.

Frankenberry, slip op. at 8; see also id. at 9-12 (affirming the trial court’s 

determination that an inmate failed to state a claim that prison officials violated the 

prohibition against cruel and unusual punishment contained in the Eighth 

Amendment by removing his single-cell classification, where the inmate alleged that 

“there is physical and mental suffering inherent in two men confined in a small space 

for extended periods of time”).21

21 Rainey also maintains that Appellees’ attorney committed a fraud upon the trial court by 

representing that Rainey has been in a cell without a cellmate since May 5, 2022. See Rainey’s 

Br. at 4-5. Rainey presumably asserts that this representation is fraudulent because it fails to take 

into account his allegation that a cellmate was transferred to his cell on December 22, 2022. We 

note, however, that Respondents’ counsel could not have implied that Rainey was being housed in 

a cell without a cellmate as of December 22, 2022, as the trial court held the hearing concerning 

Appellees’ motion to dismiss on August 11, 2022, and granted Appellees’ motion by order dated 

October 28, 2022. See Trial Ct. Op., 2/15/23 at 1. Further, Rainey’s allegation in his concise 
15

Thus, we agree with the trial court that Rainey failed to state a claim of 

cruel and unusual punishment under the Eighth Amendment to the United States 

Constitution for purposes of supporting his request for habeas corpus relief. See 

Farmer, 511 U.S. at 834.

IV. Conclusion

For the foregoing reasons, we affirm the trial court’s grant of 

Respondent’s motion to dismiss and the dismissal of Rainey’s Petition.

___________________________________

CHRISTINE FIZZANO CANNON, Judge

statement and his appellate brief that Appellees transferred a cellmate to his cell on December 22, 

2022 does not constitute a fact of record which this Court may consider. See Erie Indem. Co. v. 

Coal Operators Cas. Co., 272 A.2d 465, 467 (Pa. 1971) (explaining that “briefs are not part of the 

record, and the court may not consider facts not established by the record”); Indem. Ins. Co. of N.

Am. v. Bureau of Workers’ Comp. Fee Rev. Hearing Off., 245 A.3d 1158, 1165 (Pa. Cmwlth. 2021) 

(“It is axiomatic that factual statements in a brief that have no basis in the certified record cannot 

be considered by an appellate court.”); Commonwealth v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 

2007) (stating that “assertions that appear only in briefs and/or trial court opinions, are not to be 

considered,” recognizing that “[i]n general, it is an appellant’s burden to ensure that the certified 

record contains the documents reflecting the facts needed for review”).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kyle Rainey, :

Appellant :

:

v. :

:

Kevin Ransom, Richardo Contreras, :

Jasen Bohinski, Frank Depiero, : No. 528 C.D. 2023

Michael Goyne, and Richard Keller :

O R D E R

AND NOW, this 11th day of July, 2024, the October 28, 2022 order of 

the Court of Common Pleas of Luzerne County is AFFIRMED.

___________________________________

CHRISTINE FIZZANO CANNON, Judge