J. Page v. Hon. T.P. Rogers

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Page, :

Petitioner :

:

v. :

:

Honorable Thomas P. Rogers; :

Montgomery County District Attorney :

Michael Toal, III; Secretary of :

Department of Corrections, Dr. Laurel :

R. Harry; and Attorney Michael P. :

Gottlieb, : No. 164 M.D. 2023

Respondents : Submitted: May 7, 2024

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE MATTHEW S. WOLF, Judge

OPINION BY

JUDGE COVEY FILED: August 27, 2024

Before this Court are the Honorable Thomas P. Rogers’ (Judge Rogers),

Attorney Michael P. Gottlieb’s (Attorney Gottlieb), and the Department of

Corrections (Department) Secretary Dr. Laurel R. Harry’s (Secretary Harry)

(collectively, Respondents) Preliminary Objections to Joseph Page’s (Page) Petition

for Review seeking a declaratory judgment and injunctive relief (Petition). After

review, this Court sustains Respondents’ Preliminary Objections and dismisses the

Petition as to them.1

1

Montgomery County District Attorney Michael Toal, III (Toal), has not filed preliminary

objections to the Petition. Notably, Page does not direct any specific allegations in the Petition

against Toal. Therein, Page merely states: “The district attorney is the chief law enforcement

officer for the county in which [he is] elected.” Petition at 2. In his brief opposing Attorney

Gottlieb’s Preliminary Objections, Page adds: “In the case at bar, the state, through and by [Toal]

provided [] Attorney Gottlieb to represent the indigent petitioner Page.” Page Br. in Opp’n to

Background2

On April 13, 2010, Page was sentenced to life in prison plus 40 to 80

years for second degree murder, robbery, burglary, and criminal conspiracy, and is

currently incarcerated at the State Correctional Institution at Forest (SCI-Forest).3

See Petition at 3.

On September 10, 2015, Page filed a Post Conviction Relief Act

(PCRA)4 petition in the Montgomery County Common Pleas Court (trial court). See

Petition App. A (Affidavit/Statement of Facts) at 1. The trial court appointed

Attorney Gottlieb as Page’s PCRA counsel. See id. At some point thereafter,

Attorney Gottlieb filed an application to withdraw as Page’s counsel and issued a

no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)

(Turner Letter)5 in support thereof. See Petition App. A at 1. Despite repeated

Attorney Gottlieb’s Prelim. Objs. at 3. Page purportedly served the Petition on Toal by certified

mail on March 23, 2023. See Petition Certificate of Service. If Page did, Toal was obligated to

file a responsive pleading within 30 days. See Pennsylvania Rule of Appellate Procedure 1516(b),

Pa.R.A.P. 1516(b) (relating to responsive pleadings allowed) and Pennsylvania Rule of Civil

Procedure 1028, Pa.R.Civ.P. 1028 (relating to preliminary objections).

2

The facts are as Page alleges in the Petition.

3

See www.inmatelocator.cor.pa.gov/#/Result (last visited Aug. 26, 2024); see also

Commonwealth v. Page, Montgomery Cnty. CP-46-CR-0001914-2009.

4

42 Pa.C.S. §§ 9541-9546.

5

Through this type of letter, an attorney seeks to withdraw from

representation of a[n inmate] because “the [violator’s] case lacks

merit, even if it is not so anemic as to be deemed wholly

frivolous.” Com[monwealth] v. Wrecks, 931 A.2d 717, 722 (Pa.

Super. 2007).

Such letters are referred to by various names by

courts of this Commonwealth. See, e.g.,

Commonwealth v. Porter, . . . 728 A.2d 890, 893 []

n.2 ([Pa.] 1999) (referring to such a letter as a “‘no

merit’ letter” and noting that such a letter is also

commonly referred to as a “Finley letter,” referring

to the Superior Court case Commonwealth v. Finley,

. . . 479 A.2d 568 ([Pa.] 1984)); Zerby v. Shanon, 964

2

requests to Attorney Gottlieb to provide Page with copies of his trial transcripts and

other legal paperwork related to his criminal case, Attorney Gottlieb did not produce

them to Page. See id.

On December 10, 2021, Judge Rogers conducted a hearing and granted

Page leave to proceed on his PCRA petition pro se, and Page informed Judge Rogers

that he still needed his legal documents. See id. On May 31, 2022, SCI-Forest

received five boxes of legal documents directed to Page which Attorney Gottlieb

provided through the Montgomery County District Attorney’s office. Id.; see also

Petition App. C (Judge Rogers’ February 2, 2023 letter). After making numerous

requests to prison staff, and filing a grievance to get his legal documents, SCI-Forest

allowed Page to review two of his five boxes of documents. See Petition App. A at

1. At that time, Page learned when he was received a confiscation slip that “the

prison officials” had seized nine compact discs (CDs). Id.

Page lodged a complaint with Judge Rogers concerning SCI-Forest’s

withholding of his remaining legal documents. See id. at 2. On January 13, 2023,

Judge Rogers conducted a hearing and, by February 3, 2023 letter to SCI-Forest,

copied to Secretary Harry, Judge Rogers requested SCI-Forest’s assistance in

fulfilling Judge Rogers’ obligation to ensure Page has access to all of his legal

documents, including the confiscated CDs. See id. at 2; see also Petition App. C

A.2d 956, 960 (Pa. Cmwlth. 2009) (“Turner

[L]etter”); Commonwealth v. Blackwell, 936 A.2d

497, 499 (Pa. Super. [] 2007) (“Turner/Finley

letter”).

Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 25 n.2 (Pa.

Cmwlth. 2009).

Anderson v. Pa. Bd. of Prob. & Parole, 237 A.3d 1203, 1204 n.2 (Pa. Cmwlth. 2020); see also

Commonwealth v. Bradley, 261 A.3d 381, 395 n.14 (Pa. 2021) (“When counsel concludes that a

PCRA petitioner has no viable issues, counsel is required to submit a letter to the PCRA court

explaining the basis for his no-merit conclusion.”).

3

(Judge Rogers’ February 2, 2023 letter). As of March 2023, Page had yet to receive

his legal documents. See Petition App. A at 2.

In addition, “at the behest of Chief [L]egal Counsel for the

Department[,]” Petition at 9, “prison officials” at SCI-Forest had “removed all of the

model form petitions/motions which [SCI-Forest] would provide to assist [Page] in

accessing the [c]ourt[s] in a meaningful way,” and “removed law books and other

reference materials from the law library (including form motions and petitions) that

were previously available . . . .” Petition App. A at 2. Page also felt that his “life

and health [were] at risk as the Department . . . [could not] adequately protect [him]

from the COVID-19 virus and its varients [sic.]” Id.; see also Petition App. B

(newspaper articles recounting inmate deaths related to overcrowding and COVID-

19).

Facts

On March 24, 2023, Page, pro se, filed the Petition in this Court’s

original jurisdiction. Therein, Page asserts that his current confinement conditions

violate the Eighth Amendment to the United States (U.S.) Constitution’s (Eighth

Amendment)6 ban on cruel and unusual punishment because of SCI-Forest’s

overcrowding and potential COVID-19 exposure.7 See Petition at 5-6. In addition,

Page contends that Judge Rogers lacked subject matter jurisdiction over his criminal

6

U.S. CONST. amend. VIII (“Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.”); see also PA. CONST. art. 1, § 13

(“Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments

inflicted.”). The Eighth Amendment “applies to the [s]tates through the Due Process Clause of

the Fourteenth Amendment[,” U.S. Const. amend. XIV, § 1 (“No [s]tate . . . shall . . . deprive any

person of life, liberty, or property, without due process of law[.]”)]. Wilson v. Seiter, 501 U.S.

294, 296 (1991).

7

Page acknowledges that his COVID-19-related claims could not be raised in a PCRA

petition because the circumstances that gave rise to his claims did not exist before the PCRA

limitations period expired. See Petition at 6.

4

case and failed to specify in Page’s 2010 sentencing order the basis on which he

imposed Page’s sentence in 2010, so his sentence was not lawfully imposed. See

Petition at 8. Page also declares that, when seeking to withdraw as Page’s counsel,

Attorney Gottlieb’s Turner Letter “exposed not only [] confidential

communications,” but Page’s strategy. Petition at 9. Further, Page claims that

“prison officials at [SCI-]Forest” “impinge[d] on [his] First Amendment right [under

the U.S. Constitution (First Amendment)8] to freedom of speech, access to the

courts, and his Sixth Amendment right [under the U.S. Constitution (Sixth

Amendment)9] to effective communications” by withholding five boxes of his legal

documents and removing legal books and model form legal papers and motions from

SCI-Forest’s law library, which “prejudice[d] his ability to bring his pro se PCRA

matters before the [trial court] and [Judge] Rogers in any meaningful way.” Petition

at 9 (italics omitted). In the Petition, Page seeks a declaration from this Court that

Respondents’ acts and/or omissions violated his rights under the U.S. and

Pennsylvania Constitutions and asks this Court for preliminary and permanent

injunctions directing SCI-Forest prison officials to return his legal documents and to

restore the model form legal papers and motions to the SCI-Forest law library.10

On April 24, 2023, Judge Rogers filed Preliminary Objections asserting

that the Petition fails to state a valid legal claim against him in his official capacity

because Page does not seek any direct relief against him, Judge Rogers has judicial

8

U.S. CONST. amend. I (“Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the

press, or the right of the people peaceably to assemble, and to petition the [g]overnment for a

redress of grievances.”).

9

U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the

right . . . to have the [a]ssistance of [c]ounsel for defen[s]e.”).

10

Also on March 24, 2023, Page filed a Motion for Leave to Proceed in Forma Pauperis

(IFP Motion). On April 3, 2023, this Court requested that Page supply his inmate account

statement, which he did on April 14, 2023. On April 26, 2023, this Court granted the IFP Motion.

5

immunity, and Page cannot collaterally attack his sentence in this Court. Despite

that Judge Rogers’ Preliminary Objections contain a notice to plead, Page did not

file an answer to thereto.11

On April 27, 2023, Attorney Gottlieb filed Preliminary Objections,

contending that Page failed to state a valid claim against him because Page does not

seek any direct relief against him, and because only the trial court - not this Court -

has jurisdiction to review Page’s challenge to Attorney Gottlieb’s Turner Letter.

Attorney Gottlieb filed a brief in support of his Preliminary Objections. On June 6,

2023, Page filed his answer opposing Attorney Gottlieb’s Preliminary Objections.

On June 8, 2023, Secretary Harry filed Preliminary Objections to the

Petition, asserting that Page failed to state a valid legal action against her because:

she was not personally involved in the actions he claims violated his constitutional

rights and she is not vicariously liable therefor; she is immune from this litigation;

Page failed to state a valid First Amendment violation claim against her; Page failed

to state a valid Eighth Amendment claim against her; and Page has not alleged any

actual injury. Secretary Harry filed a brief in support of her Preliminary Objections.

On July 11, 2023, Page filed an answer opposing Secretary Harry’s Preliminary

Objections.

On August 18, 2023, Page filed his brief in opposition to Respondents’

Preliminary Objections, wherein he added that “this action [] is not an illicit ‘second

bite at the apple’ as [] Respondents imply, but rather, similar in nature to a federal

[action under] Section 1983 [of the Civil Rights Act of 1871 (Section 1983)12]

11

On July 25, 2023, Page filed a motion to compel Judge Rogers to answer the Petition.

On September 14, 2023, this Court ordered that Page’s Motion to Compel Answer would be

decided with the merits of Respondents’ Preliminary Objections.

12

Section 1983 provides:

6

seeking relief for violations and deprivations of Page’s constitutional rights.” Page

Br. at 6. Page further requests that this Court grant him leave to amend the Petition

if it sustains Respondents’ demurrers. See id. at 5.

This matter is now ripe for this Court’s review.

Discussion

Initially, Pennsylvania Rule of Civil Procedure (Civil Rule) 1028(a)(4)

authorizes any party to file preliminary objections to a pleading based on its “legal

insufficiency” (demurrer). Pa.R.Civ.P. 1028(a)(4).

“The question presented in a demurrer is whether, on the

facts averred, the law indicates with certainty that no

recovery is possible. In ruling on preliminary objections

in the nature of a demurrer, this Court accepts as true all

well-pleaded facts in the [petition for review] and draws

all inferences reasonably deducible therefrom in favor of

the nonmoving party. Stone & Edwards Ins. Agency, Inc.

v. Dep’t of Ins., . . . 616 A.2d 1060, 1063 ([Pa. Cmwlth.]

1992). However, we “need not accept as true conclusions

of law, unwarranted inferences from facts, argumentative

allegations, or expressions of opinion.” Id. . . .

Vasquez v. Berks Cnty., 279 A.3d 59, 75-76 (Pa. Cmwlth. 2022).

“When ruling on a demurrer, [this C]ourt must confine its analysis to

the [petition for review].” Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth.

2010). “Thus, the [C]ourt may determine only whether, on the basis of the

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any [s]tate . . . subjects, or causes to be

subjected, any citizen of the [U.S.] 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. Page does not assert a Section 1983 claim in the Petition or the documents

appended thereto.

7

[petitioner’s] allegations, he or she possesses a cause of action recognized at law.”

Fraternal Ord. of Police Lodge No. 5, by McNesby v. City of Phila., 267 A.3d 531,

541 (Pa. Cmwlth. 2021). “[D]ocuments attached as exhibits [and] documents

referenced in the [petition for review], as well as facts already of record[,] may also

be considered.” Id. at 542.

1. Judge Rogers’ Preliminary Objections

Page contends in the Petition that Judge Rogers lacked jurisdiction over

his criminal case and imposed an unlawful sentence. Judge Rogers objects on the

basis that the Petition fails to state a valid legal claim against him because: Page does

not seek any direct relief against Judge Rogers, other than as part of his general

request that all Respondents violated his constitutional rights; “immunity precludes

[] claims [against Judge Rogers acting in his judicial capacity;]”13 and “[Page]

cannot collaterally attack his criminal case in this Court[.]” Judge Rogers’ Prelim.

Objs. ¶ 6. Judge Rogers attached Page’s criminal docket to his supporting brief14

and argued:

13

Generally, . . . when not objected to in preliminary objections, . . . it

is now currently accepted that immunity is a defense that may be

raised by preliminary objection “when to delay a ruling thereon

would serve no purpose.” Faust v. Dep’t of Revenue, . . . 592 A.2d

835, 838 n.3 ([Pa. Cmwlth.] 1991).

Chasan v. Platt, 244 A.3d 73, 81 (Pa. Cmwlth. 2020). Here, Page did not object by way of a

preliminary objection to Judge Rogers’s immunity defense being included in preliminary

objections.

14

Civil Rule 1019(g) provides, in relevant part: “A party may incorporate by reference any

matter of record in any [s]tate or [f]ederal court of record whose records are within the county in

which the action is pending[.]” Pa.R.Civ.P. 1019(g). Where, as here, Page expressly referenced

and challenged his underlying criminal action in the Petition, this Court will take judicial notice

of the docket related thereto. See also Solomon v. U.S. Healthcare Sys. of Pa., Inc., 797 A.2d 346,

352 (Pa. Super. 2002) (“[A] court may take judicial notice of public documents in ruling on a

preliminary objection in the nature of a demurrer.”).

8

This Court does not have jurisdiction to hold that [Page’s]

sentence is improper or issue any other ruling pertaining

to claimed errors in the criminal case. For that reason,

[Page’s] arguments about his sentence must be made in his

criminal case, not this collateral matter. Indeed, [Page]

has a pending [PCRA] petition in the criminal case.

Judge Rogers’ Br. at 3-4.

This Court has declared:

“[J]udicial immunity requires a two-part analysis: first,

whether the judge has performed a judicial act; and

second, whether the judge has some jurisdiction over the

subject matter before [him].” Langella v. Cercone, 34

A.3d 835, 838 (Pa. Super. 2011) (emphasis added). This

Court reasoned: “Judges are absolutely immune from

liability for damages when performing judicial acts, even

if their actions are in error or performed with malice,

provided there is not a clear absence of all jurisdiction over

subject matter and person.” Robinson v. Musmanno (Pa.

Cmwlth.[] No. 39 C.D. 2010, filed May 28, 2010), slip op.

at 3, . . . (unreported)[15] (per curiam) (citing Beam v.

Daihl, 767 A.2d 585 (Pa. Super. 2001)).

This Court recognizes judicial immunity is not only

immunity from damages, but also “immunity from suit.”

See Guarrasi v. Scott, 25 A.3d 394, 405 n.11 (Pa. Cmwlth.

2011) (citing Mireles v. Waco, 502 U.S. 9 . . . (1991))

(explaining judicial immunity applied to a common pleas

court judge); Logan [v. Lillie, 728 A.2d 995 (Pa. Cmwlth.

1999)] (upholding dismissal of equitable claims seeking

declaration that judicial officers’ acts were

unconstitutional). As such, judicial immunity is an

available defense for declaratory relief. See Guarrasi;

Logan; accord Azubuko v. Royal, 443 F.3d 302 (3d Cir.

2006).

Chasan v. Platt, 244 A.3d 73, 81-82 (Pa. Cmwlth. 2020) (footnotes omitted).

15

Unreported decisions of this Court issued after January 15, 2008, may be cited as

persuasive authority pursuant to Section 414(a) of this Court’s Internal Operating Procedures. 210

Pa. Code § 69.414(a). The unreported cases included herein are cited for their persuasive value.

9

Certainly, “presiding over . . . criminal proceedings is a judicial

function that falls squarely within the category of protected judicial acts.” Langella,

34 A.3d at 839. In addition, “all courts of common pleas have statewide subject

matter jurisdiction in cases arising under the Crimes Code[,]”16 Commonwealth v.

Bethea, 828 A.2d 1066, 1074 (Pa. 2004), within “the territorial boundaries of the

judicial district in which it sits . . . .” Id. at 1075. Here, where Page’s claims against

Judge Rogers stem from judicial acts related to Page’s criminal case over which

Judge Rogers had subject matter jurisdiction, Judge Rogers has judicial immunity.

Moreover, although Page insists that he is not seeking a second bite at

the apple by impermissibly challenging his criminal sentence in this Court, see Page

Br. at 6, the Petition belies Page’s position. Therein, Page questions whether “life

without the possibility of parole (death by incarceration) [is] unconstitutional[,] in

violation of the Eighth and Fourteenth Amendments and their state constitutional

counterparts relative to [] Page specifically[]” (Petition at 4); he declares that he “is

arguing [] the severity of a prison sentence” (Petition at 6); and he contends that his

“sentence [was] not [] lawfully imposed pursuant to any authorized statute.”

(Petition at 8). Page expounds in his brief:

Even assuming [] Page could raise these issues below, it

would subject him to the very dangers he seeks to avoid[]

and deprive him of the opportunity to raise his claims and

have them heard by a Judge and Judges other than [Judge

Rogers] who originally violated [Page’s] rights. Such

problems cannot be cured by raising them in the [trial

court].

Page Br. at 6-7.

This Court has expressly ruled:

[Inmates] may not collaterally attack their sentences by

using a civil action in this Court seeking declaratory and

16

18 Pa.C.S. §§ 101-9546.

10

injunctive relief. See also Guarrasi . . . , 25 A.3d [at] 402

. . . (observing that plaintiff “may not use a civil action for

declaratory judgment in our original jurisdiction to

collaterally attack the legality of his criminal proceedings”

and reiterating that “[t]he PCRA is the sole means by

which . . . persons serving illegal sentences may obtain

collateral relief”) (internal quotation marks and citations

omitted).

Scott v. Pa. Bd. of Prob. & Parole, 256 A.3d 483, 492-93 (Pa. Cmwlth. 2021), aff’d,

284 A.3d 178 (Pa. 2022).

Page has a PCRA action pending in the trial court. See Petition at 3

(“[Page] incorporates his PCRA petition”); see also Judge Rogers’ Br. at 4.

Notwithstanding, “in an effort to invoke [] original jurisdiction, [Page has also]

presented [his] sentencing claims in the context of a “Petition for Review in the

Nature of a Complaint Seeking Declaratory Judgment and [Preliminary and

Permanent] Injunctive Relief.” Scott, 256 A.3d at 491. Thus, Page has “fashioned

the Petition in this manner in a thinly veiled attempt to forum shop through pleading,

which we will not countenance.” Id. at 492. “[T]his Court has already rejected []

challenge[s] remarkably similar to this one on the basis that it constituted a collateral

attack on a criminal sentence.” Id.; see also Hill v. Commonwealth (Pa. Cmwlth.

No. 152 M.D. 2008, filed Sept. 26, 2008), 2008 WL 9396706, at *1, ([T]he

petitioner’s “collateral attack on his sentence . . . must be brought under the PCRA

and not as a complaint for declaratory judgment and injunctive relief in this Court’s

original jurisdiction.”). Accordingly, Page’s claims that Judge Rogers’ sentencing

order was unlawful is not properly before this Court.17

17

To the extent Page attempts to include COVID-19 exposure as a harsh condition of his

sentence, see Petition at 6, this Court agrees with the Pennsylvania Superior Court’s observation

that where, as here, the inmate’s sentence began before the COVID-19 pandemic spread in the

spring of 2020, “[t]he pandemic is not related to the trial court’s authority to impose the sentence,

and thus cannot be the basis of any alleged illegality.” Commonwealth v. Gillums, 249 A.3d 1172

(Pa. Super. No. 1601 EDA 2019, filed Feb. 22, 2021) (unreported), slip op. at 15.

11

Based on the foregoing, this Court sustains Judge Rogers’ Preliminary

Objections.

2. Attorney Gottlieb’s Preliminary Objections

In the Petition, Page declares that Attorney Gottlieb’s Turner Letter

improperly “exposed not only [] confidential communications,” but also Page’s

litigation strategy and, thus, violated the attorney-client privilege without his

consent.18 Petition at 9. Attorney Gottlieb objects on the basis that this Court lacks

jurisdiction because Page may only attack his Turner Letter and circumstances

surrounding it in the trial court.19

Pennsylvania Rule of Criminal Procedure (Criminal Rule) 904(C)

provides: “[W]hen an unrepresented defendant satisfies the judge that the defendant

is unable to afford or otherwise procure counsel, the judge shall appoint counsel to

represent the defendant on the defendant’s first petition for post-conviction collateral

relief.”20 Pa.R.Crim.P. 904(C). Rule 904(F)(2) states: “[T]he appointment of

counsel shall be effective throughout the post-conviction collateral proceedings,

18

In his answer to Attorney Gottlieb’s Preliminary Objections, Page added the argument

that by appointing Attorney Gottlieb to represent him, the Commonwealth was both prosecuting

and defending him, which was a conflict of interest. See Page Answer to Attorney Gottlieb Prelim.

Objs. at 3. However, because Page did not raise that issue in the Petition, and this Court’s review

is limited to the allegations in the Petition and documents attached thereto, see Vasquez; see also

McNesby, this Court will not address that argument.

19

Page responds that Attorney Gottlieb waived his jurisdictional argument because he

failed to raise it in his Preliminary Objections. See Page Br. in Opp’n to Attorney Gottlieb Prelim.

Objs. at 3. However, Attorney Gottlieb specified in his Preliminary Objections: “[Page] cannot

attack a Turner[] [L]etter before the Commonwealth Court, but rather may only attack same in the

[trial court], and therefore the Petition . . . fails to state a claim for which relief can be granted.”

Attorney Gottlieb’s Prelim. Objs. ¶ 6. Because Attorney Gottlieb raised the jurisdiction claim in

his Preliminary Objections, Page’s waiver argument lacks merit.

20

“Although the PCRA proceedings are civil, they nonetheless involve a collateral attack

upon a judgment of sentence imposed in a criminal case[ and, thus,] . . . are governed by the

[Criminal] Rules . . . .” Commonwealth v. Presley, 193 A.3d 436, 442 (Pa. Super. 2018).

12

including any appeal from disposition of the petition for post-conviction collateral

relief.” Pa.R.Crim.P. 904(F)(2).

If PCRA counsel seeks to withdraw on the ground that

the issues raised by the PCRA petitioner are without merit,

he must satisfy the following requirements: he must file a

sufficient no-merit letter, send the PCRA petitioner

copies of the application to withdraw and no-merit letter,

and advise the PCRA petitioner of his right to proceed pro

se or with a privately retained attorney.

Commonwealth v. Kelsey, 206 A.3d 1135, 1139 (Pa. Super. 2019) (emphasis added;

italics omitted). “The no-merit letter must set forth: [(]1) the nature and extent of

counsel’s review of the case; [(]2) each issue that the petitioner wishes to raise on

appeal; and [(]3) counsel’s explanation of why each of those issues is meritless.”

Id. (emphasis added). “[W]hen the PC[R]A court concurs, counsel will be permitted

to withdraw[,] and the petitioner may proceed pro se, or by privately retained

counsel, or not at all.” Turner, 544 A.2d at 929.

Section 9545(a) of the PCRA clearly mandates: “Original jurisdiction

over a [PCRA] proceeding . . . shall be in the court of common pleas.” 42 Pa.C.S.

§ 9545(a) (emphasis added). Moreover, the Pennsylvania Superior Court has

appellate jurisdiction over appeals from the trial court’s final PCRA rulings.21 See

Section 742 of the Judicial Code, 42 Pa.C.S. § 742.

Page’s PCRA petition is apparently still pending before the trial court.

See Petition at 3 (“[Page] incorporates his PCRA petition”); see also Judge Rogers’

Br. at 4. Attorney Gottlieb was legally mandated to file a Turner Letter discussing

21

The Superior Court’s review of PCRA rulings “is limited to [determining] whether the

record supports the PCRA court’s factual determinations and whether its decision is free of legal

error.” Commonwealth v. Carrera, 289 A.3d 1127, 1132 n.6 (Pa. Super. 2023).

13

the merits of Page’s claims in the trial court in order to withdraw as counsel.22 Any

challenges Page had to Attorney Gottlieb’s Turner Letter related to his PCRA

proceedings must first be made to the trial court and, thereafter, appealed to the

Superior Court - not this Court. Because this Court lacks jurisdiction to review

Attorney Gottlieb’s PCRA-related Turner Letter, Page has failed to state a valid

cause of action against Attorney Gottlieb. Accordingly, this Court sustains Attorney

Gottlieb’s Preliminary Objections.

3. Secretary Harry’s Preliminary Objections

Page names Secretary Harry as a party in the Petition. However, he

does not specify any action or inaction by Secretary Harry that violated his

constitutional rights. Broadly reading the Petition, it appears that Page is claiming

that SCI-Forest staff, under the direction of, or as supervised by Secretary Harry, has

violated his First and Sixth Amendment rights by withholding his legal documents

and removing legal form petitions/motions from the law library, and his Eighth

Amendment rights based on his unsafe confinement conditions - particularly

overcrowding and his COVID-19 exposure risk.23

22

Page incorporated his PCRA documents in the Petition by reference. See Petition at 3

(“[Page] incorporates his PCRA petition and his complaints sent to Judge Rogers and prison

officials as if fully rewritten herein in its entirety since they are having to do with the matter in

question.”). However, they are not appended to the Petition.

23

In his answer to Secretary Harry’s Preliminary Objections, Page averred: “[Secretary]

Harry’s answer [] fails to address [Page’s] Eighth Amendment claims relative to ‘life without the

possibility of parole,’ i.e., death by incarceration, in which [her] role and position as one who

‘enforces’ the sentence imposed - makes her inextricably intertwined in [] Page’s sentence.” Page

Answer to Secretary Harry’s Prelim. Objs. at 5.

However, Section 901-B of the Administrative Code of 1929, Act of April 9, 1929, P.L.

177, as amended, added by Section 4 of the Act of December 30, 1984, P.L. 1299, includes among

the Department’s powers and duties the “administration, management and supervision of penal

and correctional facilities, programs[,] and services.” 71 P.S. § 310-1. The General Assembly

authorized the Department to create rules and promulgate regulations to carry out those

14

Secretary Harry objects on the basis that Page failed to sufficiently

assert that she was personally involved in the actions he claims violated his

constitutional rights, she is immune from this litigation, and she is not vicariously

liable for prison staff actions simply because she is in the chain of command or

conducted an after-the-fact grievance investigation. Secretary Harry also contends

that Page failed to state a valid First Amendment violation claim against her where

he has not specified whose actions resulted in such violations, nor alleged any actual

injury, and limiting an inmate’s access to his legal documents and law library

materials serve legitimate penological interests.24 Secretary Harry further declares

that Page has failed to state a valid Eighth Amendment claim where he has not

alleged that she consciously ignored or took inadequate measures regarding COVID-

19 threats, and the fact that SCI-Forest was not successful in eliminating all positive

cases within its walls did not amount to indifference on her part as is necessary to

implicate the Eighth Amendment.

responsibilities. See Section 1105(b) of the Prisons and Parole Code, 61 Pa.C.S. § 1105(b). In

Section 91.2 of the Department’s Regulations, it declares that its purpose is “to operate its

institutions and programs to provide protection to the community, a safe and humane

environment[,] and opportunities for rehabilitation for the inmates.” 37 Pa. Code § 91.2.

Accordingly, “the Department is not the state agency responsible for prosecuting crimes or

appointing counsel. Further, the Department has no discernible role in administering the PCRA

process. Therefore, . . . the Department is not the proper party to address deficiencies in [Page’s]

criminal and collateral proceedings[.]” Key v. Pa. Dep’t of Corr. (Pa. Cmwlth. No. 304 M.D.

2022, filed Mar. 22, 2024), slip op. at 6 (footnote omitted).

24

At Secretary Harry’s request, this Court takes judicial notice of Department Policy DC-

ADM 815 (relating to Personal Property, State Issued Items, and Commissary Outside Purchases).

See Paluch v. Pa. Dep’t of Corr., 175 A.3d 433, 437 n.6 (Pa. Cmwlth. 2017) (“courts may take

judicial notice of [the Department’s] policies and handbooks, which appear on [its] official

website”); see also Hill v. Dep’t of Corr., 64 A.3d 1159 (Pa. Cmwlth. 2013).

15

a. Immunity

Although, as Department Secretary, Secretary Harry is a public officer

“responsible, inter alia, for the overall administration and operation of all of [the

Department’s] correctional institutions,” Hackett v. Horn, 751 A.2d 272, 273 n.1

(Pa. Cmwlth. 2000), “pursuant to [a]rticle 1, [s]ection 11 of the Pennsylvania

Constitution,[25] the General Assembly declared that ‘the Commonwealth, and its

officials and employees acting within the scope of their duties, shall . . . enjoy

sovereign immunity and official immunity[26] and remain immune from suit except

as the General Assembly shall specifically waive the immunity.’ 1 Pa.C.S. §

25

Article 1, section 11 of the Pennsylvania Constitution mandates:

All courts shall be open; and every man for an injury done him in

his lands, goods, person or reputation shall have remedy by due

course of law, and right and justice administered without sale, denial

or delay. Suits may be brought against the Commonwealth in such

manner, in such courts and in such cases as the Legislature may by

law direct.

PA. CONST. art. 1, § 11.

26

This Court has clarified:

While official immunity is related to the common law doctrines of

sovereign and governmental immunity, it is separate both in

terminology and its historical development. Sovereign and

governmental immunity involve the constitutional question of the

Commonwealth consenting to be sued and the effect those suits

would have on the public purse, while official immunity is a doctrine

that prevents the fear of personal liability from interfering with the

public officials’ performance of their duties. Official immunity

protects the public officer from liability, even when sovereign

immunity has been waived. It is personal to the officers in order to

allow them to carry out their duties requiring the exercise of

judgment.

Kuzel v. Krause, 658 A.2d 856, 858 (Pa. Cmwlth. 1995). “Consistent with the interest in

unimpaired decision[-]making, [the Pennsylvania Supreme Court] believe[d] it appropriate to

protect from the possibility of suit a public servant who has not him[/her]self engaged in actionable

conduct. Thus, those in the ‘chain of command’ should not be subject to suit on any theory of

vicarious responsibility.” DuBree v. Commonwealth, 393 A.2d 293, 295 (Pa. 1978).

16

2310.”27 Minor v. Kraynak, 155 A.3d 114, 121 (Pa. Cmwlth. 2017) (footnote

omitted).

The U.S. Supreme Court has warned that it is essential to determine the

real party in interest before assessing whether immunity applies because that

“dictates what immunities may be available[,]” Lewis v. Clarke, 581 U.S. 155, 163

(2017), and “[i]n making this assessment, courts may not simply rely on the

characterization of the parties in the [petition for review], but rather must determine

in the first instance whether the remedy sought is truly against the sovereign.” Id. at

162. The U.S. Supreme Court explained:

If . . . an action is in essence against a [s]tate even if the

[s]tate is not a named party, then the [s]tate is the real party

in interest and is entitled to invoke [sovereign immunity]

protection. For this reason, an arm or instrumentality of

the [s]tate generally enjoys the same immunity as the

sovereign itself. E.g., Regents of Univ. of Cal. v. Doe, 519

U.S. 425, 429-[]30 . . . (1997). Similarly, lawsuits brought

against employees in their official capacity “represent only

another way of pleading an action against an entity of

which an officer is an agent,” and they may also be barred

by sovereign immunity. Kentucky v. Graham, 473 U.S.

159, 165-[]66 . . . (1985) (internal quotation marks

omitted).

The distinction between individual- and official-capacity

suits is paramount here. In an official-capacity claim, the

relief sought is only nominally against the official and in

fact is against the official’s office and thus the sovereign

itself. Will v. Mich[.] Dep[’]t of State Police, 491 U.S. 58,

27

The Eleventh Amendment to the U.S. Constitution, which states that “[t]he [j]udicial

power of the [U.S.] shall not be construed to extend to any suit in law or equity, commenced or

prosecuted against one of the [U.S.] by [c]itizens of another [s]tate, or by [c]itizens or [s]ubjects

of any Foreign State[,]” U.S. CONST. amend. XI, similarly “bars federal lawsuits against states and

their agencies unless sovereign immunity has been expressly waived,” and “extends to a state

official acting in his or her official capacity . . . .” Flagg v. Int’l Union, Sec., Police, Fire Pros.

of Am., Local 506, 146 A.3d 300, 306-07 (Pa. Cmwlth. 2016).

17

71 . . . (1989); Dugan v. Rank, 372 U.S. 609, 611, 620-[]22

. . . (1963). This is why, when officials sued in their

official capacities leave office, their successors

automatically assume their role in the litigation. Hafer [v.

Melo], 502 U.S. [21,] 25 . . . [(1991)]. The real party in

interest is the government entity, not the named official.

See Edelman v. Jordan, 415 U.S. 651, 663-[]65 . . . (1974).

“Personal-capacity suits, on the other hand, seek to impose

individual liability upon a government officer for actions

taken under color of state law.” Hafer, 502 U.S.[] at

25 . . . (emphasis added); see also id.[] at 27-31 . . .

(discharged employees entitled to bring personal damages

action against state auditor general); cf. Bivens v. Six

Unknown Fed. Narcotics Agents, 403 U.S. 388 . . . (1971).

“[O]fficers sued in their personal capacity come to court

as individuals,” Hafer, 502 U.S.[] at 27 . . . , and the real

party in interest is the individual, not the sovereign.

. . . . Defendants in an official-capacity action may assert

sovereign immunity. Graham, 473 U.S.[] at 167 . . . . An

officer in an individual-capacity action, on the other hand,

may be able to assert personal immunity defenses, such

as, for example, absolute prosecutorial immunity in certain

circumstances. Van de Kamp v. Goldstein, 555 U.S. 335,

342-[]44 . . . (2009). But sovereign immunity “does not

erect a barrier against suits to impose individual and

personal liability.” Hafer, 502 U.S.[] at 30-31 . . . (internal

quotation marks omitted); see Alden v. Maine, 527 U.S.

706, 75 . . . (1999).

Lewis, 581 U.S. at 162-63 (citation italics added).

Moreover, “individual public employees are not vicariously liable for

the actions of subordinates merely because the subordinate is in the employee’s

chain of command.” Fauber v. Fetterolf, Harlow & Wetzel (Pa. Cmwlth. No. 1856

C.D. 2013, filed June 18, 2014), slip op. at 6. Thus, “[m]erely being in the ‘chain of

command’ does not subject [a public servant manager] to suit on a theory of

vicarious responsibility.” Price v. Corr. Officer Simcox (Pa. Cmwlth. No. 307 C.D.

18

2017, filed Sept. 28, 2017), slip op. at 9 (quoting DuBree v. Commonwealth, 393

A.2d 293, 295 (Pa. 1978)); see also Bush v. Veach, 1 A.3d 981 (Pa. Cmwlth. 2010).

In the instant matter, not only was Secretary Harry not Secretary when

it appears Page’s First and Eighth Amendment claims arose,28 but Page does not

specify any basis on which Secretary Harry is personally liable for such alleged

violations. While in the Petition Page directs his Eighth Amendment claims against

all Respondents, he limits those claims in his appended Affidavit/Statement of Facts

to the Department (“[M]y life and health [are] at risk as the Department . . . cannot

adequately protect me from the COVID-19 virus and its varients [sic.]”29 Petition

App. A at 2). Under these circumstances, Secretary Harry need not invoke personal

immunity protection. Moreover, although Page did not include the Department as a

party to this action,30 the Department is the real party in interest. Because Page’s

28

Pennsylvania Governor Josh Shapiro named Secretary Harry as the Department’s Acting

Secretary in January 2023. The Pennsylvania Senate appointed her Department Secretary in June

2023. See www.cor.pa.gov/Pages/Secretary%20of%20Corrections.aspx (last visited Aug. 26,

2024).

29

In his brief opposing Respondents’ Preliminary Objections, Page generally declares:

“Undoubtedly, the overcrowding led to the spread of COVID-19 in Pennsylvania prisons where

social distancing is virtually impossible.” Page Br. in Opp’n to Prelim. Objs. at 4 (quotation marks

omitted). In his answer to Secretary Harry’s Preliminary Objections, Page appears to direct his

Eighth Amendment violation claims solely at Secretary Harry. See Page Answer to Secretary

Harry’s Prelim. Objs. at 6-7. Although this Court’s review is limited to the Petition and documents

attached thereto, see Vasquez; see also McNesby, and not Page’s answer or brief, this Court

recognizes that Secretary Harry is the only Respondent potentially liable for Page’s Eighth

Amendment claims related to overcrowding and potential COVID-19 exposure.

30

[N]aming Secretary [Harry] as a defendant in the [Petition] [i]s not

sufficient to implicate the Department as a defendant. [Civil] Rule

2102(a)(2) . . . provides the mechanism for naming a

Commonwealth party as a defendant, stating “[a]n action against a

Commonwealth agency or party shall be styled in the following

manner: Plaintiff v. ‘–––– (Name of Agency or Party) of the

Commonwealth of Pennsylvania.’” Pa.R.C[iv].P. [] 2102(a)(2).

Thus, naming Secretary [Harry] is not the same as naming the

Department.

Fauber v. Fetterolf, Harlow & Wetzel (Pa. Cmwlth. No. 1856 C.D. 2013, filed June 18, 2014), slip

op. at 6.

19

allegations in the Petition are asserted against Secretary Harry as an agent of the

Department, she is entitled to invoke the Department’s immunity. See Lewis.

“Generally, the Commonwealth and its agencies, officials[,] and

employees acting within the scope of their duties are immune from suits for

damages.”31 Stackhouse v. Pa. State Police, 892 A.2d 54, 58 (Pa. Cmwlth. 2006)

(emphasis added). Here, rather than damages, Page requests “a declaration that the

acts and/or omissions of [] Respondents violated his rights under the [U.S.] and

Pennsylvania Constitutions” and “an injunction . . . to enjoin [SCI-]Forest prison

officials to return all his legal boxes and case file documents which are being

withheld from him, and to restore model form legal papers and motions to the law

library . . . .” Petition at 9 (emphasis added). Thus, Page seeks only declaratory and

mandatory injunctive relief.32

This Court has ruled that although, in addition to damages, “sovereign

immunity bars claims seeking mandatory injunctions to compel affirmative action

31

“Damage suits will be barred unless the plaintiff establishes that the cause of action falls

under one of the specifically enumerated legislative exceptions to immunity.” Stackhouse v. Pa.

State Police, 892 A.2d 54, 59 (Pa. Cmwlth. 2006); see also Section 8521 of the Judicial Code, 42

Pa.C.S. § 8521. The exceptions under which liability may be imposed relate to (1) vehicle liability;

(2) medical-professional liability; (3) care, custody, and control of personal property; (4)

Commonwealth real estate, highways, and sidewalks; (5) potholes and other dangerous conditions;

(6) care, custody, and control of animals; (7) liquor store sales; (8) National Guard activities; (9)

toxoids and vaccines; and (10) sexual abuse. See Section 8522(b) of the Judicial Code, 42 Pa.C.S.

§ 8522(b).

32

Sovereign immunity does not bar prohibitory injunction claims. See Stackhouse.

“[T]he substance of the relief requested [] determines whether the injunction is mandatory or

prohibitory. The nature of mandatory injunctions is to ‘command[ ] the performance of an

affirmative act[.]’” Firearms Owners Against Crime - Inst. for Legal, Legislative & Educ. Action

v. Evanchick, 291 A.3d 507, 514 (Pa. Cmwlth. 2023) (citation omitted) (quoting Big Bass Lake

Cmty. Ass’n v. Warren, 950 A.2d 1137 (Pa. Cmwlth. 2008)). Because Page requests preliminary

and permanent injunctions directing SCI-Forest prison officials to return his legal documents and

to restore the model form legal papers and motions, see Petition at 9, he seeks mandatory

injunctions for which Secretary Harry has immunity.

20

by Commonwealth officials,”33 Stackhouse, 892 A.2d at 61; see also Firearms

Owners Against Crime - Inst. for Legal, Legislative & Educ. Action v. Evanchick,

291 A.3d 507 (Pa. Cmwlth. 2023), “[t]o the extent that [Page] seek declarations

regarding [Secretary Harry’s] duties, and [his] right to certain benefits . . . , [his]

claim[s are] not barred by sovereign immunity.” Firearms Owners, 291 A.3d at 515.

Accordingly, although she is immune from the mandatory injunctive relief Page

requests,34 Secretary Harry could be liable relative to Page’s declaratory judgment

claims to the extent he states valid constitutional violations.

b. First Amendment Claims

Page asks this Court for a declaration that SCI-Forest staff and, thus,

Secretary Harry, violated his constitutional rights by withholding boxes of his legal

mail.35 Under the First Amendment, “prisoners have the constitutional right to

33

Notwithstanding, Page fails to set forth in the Petition the necessary preliminary and

permanent injunction criteria.

34

This Court acknowledges that state law cannot provide broader immunity for federal

constitutional violation claims brought in state courts than is available for such claims brought in

federal court. See Howlett v. Rose, 496 U.S. 356 (1990); see also Watkins v. Pa. Dep’t of Corr.,

196 A.3d 272 (Pa. Cmwlth. 2018). Generally, a state official who violates federal constitutional

law is “stripped of his official or representative character and is subjected . . . to the consequences

of his individual conduct. The state has no power to impart to him any immunity from

responsibility to the supreme authority of the United States.” Ex parte Young, 209 U.S. 123, 159-

60 (1908) (federal courts may award prospective relief against state officials for federal law

violations); see also Va. Off. for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011) (VOPA)

(“when a federal court commands a state official to do nothing more than refrain from violating

federal law, he is not the [s]tate for sovereign[]immunity purposes”). However, under federal law,

immunity bars suits seeking injunctive relief against state officials where, as here, the state/state

agency is the real party in interest. See VOPA (the Ex parte Young exception to sovereign

immunity does not apply when the state is the real party in interest); see also Pennhurst State Sch.

& Hosp. v. Halderman, 465 U.S. 89 (1984); State of Hawaii v. Gordon, 373 U.S. 57 (1963).

35

In his answer to Secretary Harry’s Preliminary Objections, Page expanded his claim to

include alleged interference with his legal mail in that SCI-Forest staff opened his privileged mail

outside of his presence. However, because this Court’s review is limited to the Petition and

appended documents, and he did not make that claim therein, this Court will not address it.

21

petition the [g]overnment for redress of their grievances, which includes a

reasonable right of access to the courts” to challenge unlawful convictions and

constitutional rights violations. Hudson v. Palmer, 468 U.S. 517, 523 (1984).

This Court acknowledges that “[alt]hough ‘confinement and the needs

of the penal institution impose limitations on constitutional rights[,]’ Jones v. [N.C.]

Prisoners’ Lab[.] Union, Inc., 433 U.S. 119, 125 . . . (1977), . . . ‘incarceration does

not divest prisoners of all constitutional protections.’ Shaw v. Murphy, 532 U.S.

223, 228 . . . (2001).” Nunez v. Blough, 283 A.3d 413, 423 (Pa. Cmwlth. 2022).

Relevant to Secretary Harry’s purported interference with Page’s legal mail, Section

3 (Personal Property, Cell Contents, and Contraband), subsection B (Accumulation

of Items - Cell Content Limitations) of Department Policy DC-ADM 815 states, in

relevant part:

1. An inmate in general population is permitted storage

space equal to four records center boxes. This space may

consist of four records center boxes or one footlocker and

two records center boxes. In a cell with a built-in, or

freestanding storage cabinet, the inmate is permitted to use

that space and either two records center boxes or one

footlocker.

....

6. Any item(s) in the inmate’s possession that is not

included in Subsection B. [] will be considered contraband

in accordance with Subsection C. below [(relating to

contraband)].

....

11. The Facility Manager may permit an inmate to

maintain extra storage boxes for legal materials for active

cases:

a. the only legal material permitted will be court

filings, transcripts, notes of testimony, and notes

22

prepared by the inmate.[36] This does not include

reference materials, books, or photocopied cases;

b. excess legal materials will be stored in a

separate box marked “Legal Materials Only;”

c. the inmate must send a DC-135A, Inmate

Request to Staff Member, to the Facility

Manager/designee requesting permission to

maintain extra storage boxes for legal materials.

The DC-135A must describe the legal materials

defined in Subsection B.11.a. above; and

d. if approved by the Facility Manager/designee, a

copy of the DC-135A shall be forwarded to the

Property Officer; the number of boxes permitted

and a brief description of the contents shall be

noted on the inmate’s DC-153.

12. An inmate may not exceed the property limits

established by the Department. Excess property, as

determined by the Facility Manager/designee, may be

shipped out at the inmate’s expense or destroyed. If an

inmate has accumulated excess property prior to transfer

to another Department facility or release, the sending

facility shall ensure that the excess property is shipped out

at the inmate’s expense or destroyed, prior to the inmate’s

transfer.

DC-ADM 815 at 3-2 - 3-4 (emphasis added; original bold emphasis omitted).37

Although “due process requires that an inmate must be afforded access

to the courts in order to challenge unlawful convictions and violations of his

constitutional rights[,]” this Court has determined that the Department’s policies

limiting the volume of materials, including legal documents, that each inmate may

36

The Petition does not reflect whether Page sought approval to possess all of his legal

materials.

37

www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/815%20Personal%20Property,%20

State%20Issued%20Items%20and%20Commissary%20-%20Outside%20Purchases.pdf (last

visited Aug. 26, 2024).

23

possess is reasonably related to safety and security goals38 and, thus, does not deprive

an inmate of his right to access to the courts. Hackett, 751 A.2d at 275.

Moreover, the Hackett Court explained:

Although denial of access to legal documents may

constitute a violation of a prisoner’s First Amendment

right to petition the courts and/or Fourteenth Amendment

due process rights, Zilich v. Lucht, 981 F.2d 694, 695 (3d

Cir.1992), in order to state a cognizable claim for violation

of the right to access to the courts, a prisoner must allege

and offer proof that he suffered an “actual injury” to

court access as a result of the denial. Oliver v. Fauver, 118

F.3d 175, 177-78 (3d Cir.1997). The [U.S.] Supreme

Court has defined actual injury as the loss or rejection of a

nonfrivolous legal claim regarding the sentencing or the

conditions of confinement. Lewis v. Casey, 518 U.S. 343

. . . (1996).

Hackett, 751 A.2d at 275-76 (emphasis added) (quoting Robinson v. Ridge, 996 F.

Supp. 447, 449 (E.D. Pa. 1997), aff’d, 175 F.3d 1011 (3d Circ. 1999)).

Page also asks this Court for a declaration that SCI-Forest staff and,

thus, Secretary Harry, violated his rights to access to the courts by removing legal

books and model legal forms from the law library.39 In Bounds v. Smith, 430 U.S.

817 (1977), the U.S. Supreme Court held that “the fundamental constitutional right

38

The Hackett Court reasoned:

If the inmates were allowed to keep as much material as desired, an

obvious fire hazard would be created. This is especially true where

inmates are locked in their cells.

Moreover, an excessive amount of material in the cell provides an

opportunity to hide contraband, including weapons and drugs. By

limiting the amount of materials inmates may keep in their cells, the

prison authorities are better able to insure the safety of the facility.

Id. at 275. The Hackett Court acknowledged that the policy did not prevent the inmate from

exchanging one box of legal materials for another whenever necessary. See id. Page concedes

that SCI-Forest staff has allowed him to review two of his five boxes of legal documents.

39

Page does not claim that he was denied access to the law library or to other library

materials.

24

of access to the courts requires prison authorities to assist inmates in the preparation

and filing of meaningful legal papers by providing prisoners with adequate law

libraries or adequate assistance from persons trained in the law.” Id. at 828. “In the

cases to which Bounds traced its roots, [the U.S. Supreme Court] had protected that

right by prohibiting state prison officials from actively interfering with inmates’

attempts to prepare legal documents[.]” Lewis, 518 U.S. at 350.

This Court has summarized:

The [U.S. Supreme] Court in Bounds noted that it has

“consistently required [s]tates to shoulder affirmative

obligations to assure all prisoners meaningful access to the

courts.” [Id.] at 824 . . . . [T]he Court pointed out that

prison authorities may consider economic factors in

determining the extent of these provisions and/or the

“methods used to provide meaningful access.” [Id.] at 825

....

Moreover, this right of access was somewhat restricted by

the [U.S. Supreme] Court’s later decision in Lewis . . . ,

wherein the [U.S. Supreme C]ourt held that an inmate was

required to establish actual injury, i.e., the

shortcomings of the prison authority . . . hindered the

inmate’s efforts to pursue a legal claim. Additionally, the

[U.S. Supreme] Court in Lewis indicated that this injury

requirement is not satisfied by any type of frustrated legal

claim, but only by claims relating to direct appeals from

criminal convictions involving incarceration, habeas

petitions[,] and civil rights actions under [Section] 1983 to

vindicate basic constitutional rights.

Further, the [U.S. Supreme] Court in Lewis reiterated that

“Bounds does not guarantee inmates the wherewithal to

transform themselves into litigating engines capable of

filing everything from shareholder derivative actions to

slip-and-fall claims.” Lewis, 518 U.S. at 355 . . . . Rather,

the [U.S. Supreme] Court indicated that Bounds merely

requires the prison authorities to provide inmates with the

tools they need in order to attack their sentences, directly

or collaterally, and in order to challenge the conditions of

their confinement.

25

Moss v. Pa. Dep’t of Corr., 868 A.2d 615, 617-18 (Pa. Cmwlth. 2004) (emphasis

added; footnote omitted).

Here, Page merely declares that the Department’s legal document

limitation policy and lack of law library forms “prejudices his ability to bring his pro

se PCRA matters before the [trial court] and [Judge] Rogers in any meaningful way.”

Petition at 9. Because he has not alleged an actual injury, this Court concludes that

he has failed to state a legally valid claim for denial of access to the courts, either

because SCI-Forest staff/Secretary Harry has withheld his legal documents or

because the SCI-Forest staff/Secretary Harry removed legal form petitions/motions

from the law library.

c. Eighth Amendment Claim

Page also asks for a declaration from this Court that SCI-Forest staff

and, thus, Secretary Harry, violated his Eighth Amendment rights relative to

overcrowding and potential COVID-19 exposure. Page specifically alleges in the

Petition:

2. [] Page is virtually defenseless against [the COVID-19]

virus which has morphed into variants due to cramped

quarters, where overcrowding in Pennsylvania prisons

make it impossible to socially[]distance from others.

3. Per “fireside chats”: former Secretary Oberlander ([SCI

-]Forest) informed [Page] that numerous inmates at [SCI-

]Forest[] have died from the deadly disease.

4. There is an extant and undeniable risk to [Page’s]

overall health. [] Page is being pyschologically [sic]

injured and exposed to serious harm where prison

overcrowding has deprived him of the basic human need

of safety.

5. [] Respondents know that there exists this

overcrowding, yet have not responded reasonably. In

summary, [Page] is subjected to living conditions which

26

have caused and is causing anxiety, fear[,] and emotional

distress at the thought of dying in prison from a disease he

cannot protect himself from [sic].

Petition at 5-6 (emphasis added).

The Eighth Amendment “imposes duties on [prison] officials . . . [to]

provide humane conditions of confinement[,] . . . [i.e., they] must ensure that inmates

receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable

measures to guarantee the safety of the inmates[.]’ Hudson, 468 U.S. [at] 526-

[]27 . . . .” Farmer v. Brennan, 511 U.S. 825, 832 (1994). In Farmer, the U.S.

Supreme Court observed:

[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.[ 296], []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 [Eighth Amendment], a prison

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

[Id.]; 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 . . . ; Hudson . . . ; Estelle [v. Gamble],

. . . 429 U.S.[ 97,] 106 [(1976).]

27

Farmer, 511 U.S. at 834 (emphasis added; footnote omitted). Therefore, “[a]n

Eighth Amendment claim contains an objective inquiry and a subjective inquiry,

both of which must be established to state a viable claim.” Brooks v. Kelly (Pa.

Cmwlth. No. 928 C.D. 2022, filed Apr. 19, 2024), slip op. at 11; see also Tindell v.

Dep’t of Corr., 87 A.3d 1029 (Pa. Cmwlth. 2014).

Regarding the objective requirement, “[a] substantial risk of serious

harm is one in which the risk is ‘so great that it is almost certain to materialize if

nothing is done.’” Horan v. Newingham (Pa. Cmwlth. No. 2622 C.D. 2015, filed

Oct. 24, 2016), slip op. at 16 (quoting Delgado v. Stegall, 367 F.3d 668, 672 (7th

Cir. 2004)). This Court has recognized that the objective element of the Eighth

Amendment confinement conditions claims can be met relative to COVID-19

because it is a very contagious virus that creates an objectively serious risk to inmate

health or safety. See Brooks. Here, however, Page asserts nothing more in the

Petition than that Secretary Harry has not reasonably responded to the COVID-19

risk to inmates.40 Page has not specified whether and how SCI-Forest staff/Secretary

Harry violated the Department’s COVID-19 protocols.

The second, subjective, element

[r]equire[s] the demonstration of a state of mind akin to

criminal recklessness, and . . . a prisoner must establish

that[] (i) the prison official knew of and disregarded an

excessive risk to inmate health or safety; (ii) the prison

official was aware of facts from which an inference could

be drawn that a substantial risk of serious harm exists; and

(iii) the prison official drew the inference. [Farmer,] 511

U.S. at 837, 840 . . . .

40

Secretary Harry requests that this Court take judicial notice of the Department’s COVID-

19 protocols on its website. See Secretary Harry’s Prelim. Objs. at 7 n.2. This Court “take[s]

judicial notice of [the Department’s] policies and handbooks, which appear on [its] official

website[.]” Hill, 64 A.3d at 1165 n.3. However, the linking information no longer exists. See

www.cor.pa.gov/pages/COVID-19.aspx (last visited Aug. 26, 2024). Notwithstanding, since Page

does not expressly challenge those protocols, they are not necessary for this Court’s review.

28

Tindell, 87 A.3d at 1039 (footnote omitted).

This Court acknowledges that Page need not allege that he has been

harmed. See Helling, 509 U.S. at 33 (“[T]he Eighth Amendment protects against

future harm to inmates[.]”); see also Brooks, slip op. at 9 (quoting Tindell, 87 A.3d

at 1039) (regarding COVID-19, “[t]he alleged medical need does not necessarily

need to be current, ‘but may result from a condition of confinement that is sure to or

very likely to pose an unreasonable risk of serious damage to future health’”).

Moreover, this Court does not take lightly Page’s claims that he felt unsafe when

confined in close quarters during the COVID-19 pandemic. However, “[w]hile we

can empathize with [Page’s] concerns about exposure to COVID-19, which are

certainly heightened in a prison and in other congregate settings, concerns arising

from COVID-19 are ones with which society at large is grappling.” Pittman v.

Commonwealth (Pa. Cmwlth. No. 476 M.D. 2022, filed Jan. 2, 2024), slip op. at 14.

Further,

[i]ncidence of disease or infection in densely populated

residence situations such as prisons, standing alone, does

not necessarily constitute unconstitutional confinement

conditions. See Shepherd v. Dallas Cnty., 591 F.3d 445,

454 (5th Cir. 2009) (“[I]solated examples of illness, injury,

or even death, standing alone, cannot prove that conditions

of confinement are constitutionally inadequate. Nor can

the incidence of diseases or infections, standing alone,

imply unconstitutional confinement conditions, since any

densely populated residence may be subject to

outbreaks.”). Further, as the [U.S.] Supreme Court . . . has

explained:

[P]rison officials who actually knew of a

substantial risk to inmate health or safety may

be found free from liability if they responded

reasonably to the risk, even if the harm

ultimately was not averted. A prison official’s

duty under the Eighth Amendment is to ensure

“reasonable safety,” a standard that incorporates

due regard for prison officials’ unenviable task of

29

keeping dangerous men in safe custody under

humane conditions. Whether one puts it in terms

of duty or deliberate indifference, prison officials

who act reasonably cannot be found liable under

the Cruel and Unusual Punishments Clause [of the

Eighth Amendment].

Farmer, 511 U.S. at 844-45 (internal citations and some

quotation marks omitted).

Here, assuming the objective prong to establish a

deliberate indifference claim is satisfied, . . . [Page] cannot

satisfy the subjective prong. The Petition does not contain

allegations demonstrating that [Secretary Harry]

disregarded the risk to inmate health and safety presented

by COVID-19. On the contrary, . . . [t]hroughout the

Petition, [Page] expresses dissatisfaction with the extent

and efficacy of [Respondents’] efforts, but does not allege

that [anyone] ignored appreciated risks of harm presented

by COVID-19.

Given the unique circumstances presented by the

worldwide spread of the COVID-19 pandemic, the

Petition fails to allege facts suggesting that [Secretary

Harry] responded unreasonably to the unprecedented

situation or subjectively disregarded an excessive risk to

inmate health so as to support a deliberate indifference

claim under the Eighth Amendment . . . . See Swain v.

Junior, 961 F.3d 1276, 1289 (11th Cir. 2020) (“We simply

cannot conclude that, when faced with a perfect storm of

a contagious virus and the space constraints inherent in a

correctional facility, the defendants here acted

unreasonably by ‘doing their best.’”).

Pew v. Wetzel (Pa. Cmwlth. No. 328 M.D. 2022, filed July 21, 2023), slip op. at 6-7

(emphasis added; footnote omitted). Accordingly, Page fails to state a legally viable

Eighth Amendment claim against Secretary Harry.

Because Page has failed to state First Amendment and Eighth

Amendment actions against Secretary Harry upon which relief may be granted, this

Court sustains Secretary Harry’s Preliminary Objections.

30

4. Petition Amendment

Page requests that this Court grant him leave to amend the Petition in

the event it sustains Respondents’ Preliminary Objections.41 See Petition at 10; see

also Page Br. at 5. Civil Rule 1033(a) authorizes this Court to grant Page leave to

amend the Petition. See Pa.R.Civ.P. 1033(a); see Lusik v. Pa. State Police (Pa.

Cmwlth. No. 405 M.D. 2017, filed Nov. 26, 2018). Granting such leave is within

this Court’s sound discretion. See Feldman v. Lafayette Green Condo. Ass’n, 806

A.2d 497 (Pa. Cmwlth. 2002). However, “[l]eave to amend a [petition] will be

withheld where[, as here,] the initial [petition for review] reveals that the prima facie

elements of a claim cannot be established and where the defects are so substantial

that amendment is not likely to cure the defects.” Lacava v. Se. Pa. Transp. Auth.,

157 A.3d 1003, 1017 (Pa. Cmwlth. 2017) (quoting Simmons v. Twp. of Moon, 601

A.2d 425, 432 (Pa. Cmwlth. 1991)). Although “[t]he allegations of a pro se

complainant are held to a less stringent standard than that applied to pleadings filed

by attorneys[,]” Danysh v. Dep’t of Corr., 845 A.2d 260, 262-63 (Pa. Cmwlth. 2004)

(emphasis omitted), aff’d, 881 A.2d 1263 (Pa. 2005), Page is still “required to ‘plead

all the facts that must be proved in order to achieve recovery on the alleged cause[s]

of action.’” Dep’t of Corr. v. Tate, 133 A.3d 350, 354 (Pa. Cmwlth. 2016) (quoting

Commonwealth v. Peoples Benefit Servs., Inc., 895 A.2d 683, 689 n. 10 (Pa. Cmwlth.

2006)). Where, as here, Page has not pled facts sufficient to achieve recovery against

Judge Rogers, Attorney Gottlieb, or Secretary Harry, and amending the Petition

would be futile, this Court denies Page leave to amend the Petition.

41

Page also asks this Court to afford him the opportunity to conduct discovery to prove his

claims. See Petition at 9; see also Page Br. at 2, 5. However, “[i]n ruling on preliminary objections

in the nature of a demurrer, this Court accepts as true all well-pleaded facts in the [petition for

review] and draws all inferences reasonably deducible therefrom in favor of the nonmoving party.”

Vasquez, 279 A.3d at 76. Accordingly, discovery is not necessary at this stage of the litigation.

31

Conclusion

Based on the foregoing, accepting as true all well-pleaded facts in the

Petition and drawing all inferences reasonably deducible therefrom in favor of the

nonmoving party (i.e., Page), as this Court must, “the law indicates with certainty

that no recovery is possible” from Judge Rogers, Attorney Gottlieb, and/or Secretary

Harry. Vasquez, 279 A.3d at 75. Therefore, Respondents’ Preliminary Objections

are sustained, and Page’s Petition is dismissed as to them. Page’s Motion to Compel

Answer is denied as moot. This litigation will proceed only as to Montgomery

County District Attorney Michael Toal, III.

_________________________________

ANNE E. COVEY, Judge

32

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Page, :

Petitioner :

:

v. :

:

Honorable Thomas P. Rogers; :

Montgomery County District Attorney :

Michael Toal, III; Secretary of :

Department of Corrections, Dr. Laurel :

R. Harry; and Attorney Michael P. :

Gottlieb, : No. 164 M.D. 2023

Respondents :

ORDER

AND NOW, this 27th day of August, 2024, the Honorable Thomas P.

Rogers’ (Judge Rogers), Attorney Michael P. Gottlieb’s, and the Department of

Corrections Secretary Dr. Laurel R. Harry’s Preliminary Objections to Joseph Page’s

(Page) Petition for Review (Petition) are SUSTAINED. Page’s Petition is

DISMISSED as to those Respondents only. Page’s Motion to Compel Answer is

denied as MOOT.

This litigation shall proceed only against Montgomery County District

Attorney Michael Toal, III, who shall file a responsive pleading within 30 days of

the date of this Order.

_________________________________

ANNE E. COVEY, Judge