O'Toole v. Pa. Dep't of Corr.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian O’Toole, :

Petitioner :

:

v. :

:

Pennsylvania Department :

of Corrections, : No. 228 M.D. 2018

Respondent : Submitted: June 22, 2018

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY

JUDGE COVEY FILED: October 16, 2018

Before this Court are the Pennsylvania Department of Corrections’

(Department) preliminary objections in the nature of a demurrer (Preliminary

Objections) to Brian O’Toole’s (O’Toole) pro se Amended Petition for Review

(Petition) in the nature of a complaint in mandamus1 filed in this Court’s original

jurisdiction.

Background

O’Toole is incarcerated at the State Correctional Institution (SCI) at

Fayette (SCI-Fayette). According to the Petition and the documents attached thereto,

on March 26, 2018, the Department’s Executive Deputy Secretary for Institutional

Operations together with the Deputy Secretaries for the Eastern and Western Regions,

issued a memorandum to inmates setting forth its new policy regarding Timberland

and Rocky boots, as follows:

1

Although designated a Petition for Writ of Mandamus, the ad damnum clause includes a

request for injunctive relief.

Effective immediately, Timberland and Rocky boots are no

longer permitted to be purchased by inmates.

Inmates that have these boots or any other manufacturers

procured previously in their possession will have until

Friday, May 11, 2018 to make arrangements to send them

home or turn them in. Inmate boot orders that were placed

prior to the suspension of boot sales on February 21, 2018

and that have not been received/issued will be returned to

the vendor upon receipt. The inmate will receive a full

refund for the cost of the boots. Any boots found after

Friday, May 11, 2018 will be considered contraband.

....

Inmates that [sic] state[-]issued boots are unavailable

through [Pennsylvania Correctional Industries (] CI[)] due

to sizing and have been issued a boot or walking shoe in

place of the standard issue state brown boots may retain

those issued boots/shoes unless the boots are Timberland or

Rocky boots. If they are Timberland or Rocky boots, they

will be replaced with a security-approved shoe or boot.

The Department will be working with CI in the coming

weeks to offer a significant increase in the variety of

sneakers being offered.

Petition Attachment 1 (March 26, 2018 Memorandum).

On April 2, 2018, O’Toole filed a Form DC-135A (Inmate’s Request to

Staff Member) seeking a pre-deprivation hearing before his Timberland boots were

confiscated. See Petition Attachment 2. On April 3, 2018, O’Toole’s request was

denied with the notation: “Read DC[-]ADM 815 [(Personal Property, State[-]Issued

Items, and Commissary/Outside Purchases) (DC-ADM 815).2]” Petition Attachment

2.

2

The DC-ADM 815 sets forth the Department’s policy, inter alia, on prisoner footwear. It

specifies that inmates will receive one state-issued pair of shoes that remain in the inmate’s

possession and, where necessary for special work assignments, protective equipment including

boots that the work supervisor will keep. See DC-ADM 815 Policy Manual (Manual) at 1-1, 1-4.

Inmates are also permitted to purchase boots from the commissary, but may only possess two pairs

of boots at any one time. See Manual at 3-3. Section 3 of the Manual prohibits inmates from

2

Facts

On April 5, 2018, O’Toole filed the Petition, claiming that his boots are

being illegally confiscated without due process and in violation of the Department’s

policy DC-ADM 815.3 On April 24, 2018, the Department filed the Preliminary

Objections contending that O’Toole’s Petition fails to state a due process claim

because he does not have a protected interest in the confiscated property.4 O’Toole

opposed the Department’s Preliminary Objections.

Discussion

In ruling on preliminary objections, we must accept as true

all well-pleaded material allegations in the petition for

review, as well as all inferences reasonably deduced

therefrom. The Court need not accept as true conclusions

of law, unwarranted inferences from facts, argumentative

allegations, or expressions of opinion. In order to sustain

possessing contraband, which “is defined as any item possessed by an inmate . . . that is . . .

expressly prohibited by those legally charged with the administration and operation of the

facility[.]” Manual at 3-4.

3

On April 13, 2018, O’Toole also filed a Petition to Open Peremptory Judgment on grounds

that if his boots are confiscated, he will lose the $92.65 purchase price, without having proper

access to the courts. On April 24, 2018, the Department objected to O’Toole’s Petition to Open

Peremptory Judgment because the Court has not entered any judgment. On May 3, 2018, this Court

denied O’Toole’s Petition to Open Peremptory Judgment and further ordered: “In the event that [the

Department] confiscates [O’Toole’s] boots, [the Department] shall not destroy [them] pending this

[C]ourt’s disposition of this matter.” May 3, 2018 Order.

4

On April 24, 2018, the Department filed an application to stay proceedings in the following

cases involving the same issue: Thomas v. Dep’t of Corr. (Pa. Cmwlth. No. 224 M.D. 2018); Cook

v. Exec. Deputy Sec’y of Pa. Dep’t of Corr. (Pa. Cmwlth. No. 249 M.D. 2018); Pittman v. Pa. Dep’t

of Corr. (Pa. Cmwlth. No. 266 M.D. 2018); Beaver v. Pa. Dep’t of Corr. (Pa. Cmwlth. No. 272

M.D. 2018). On May 3, 2018, this Court granted the Department’s application to stay the above-

captioned proceedings pending the outcome of this case. On May 22, 2018, O’Toole objected to the

Court’s stay order, claiming that he cannot adequately represent other inmates’ interest, and “by

taking this action[,] the Court has put a ‘BULLS EYE’ on [his] back.” O’Toole Obj. to Stay of

Proceedings in Similar Litigation at 1. On May 30, 2018, the Court nevertheless “confirmed” its

May 3, 2018 Order. May 30, 2018 Order.

3

preliminary objections, it must appear with certainty that

the law will not permit recovery, and any doubt should be

resolved by a refusal to sustain them.

A preliminary objection in the nature of a demurrer admits

every well-pleaded fact in the complaint and all inferences

reasonably deducible therefrom.[5] It tests the legal

sufficiency of the challenged pleadings and will be

sustained only in cases where the pleader has clearly failed

to state a claim for which relief can be granted. When

ruling on a demurrer, a court must confine its analysis to the

complaint.

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted).

In the Petition, O’Toole asserts:

5. . . . These boots are being confiscated without a pre[-

]deprivation hearing in violation of [Section 101 of the

Administrative Agency Law,] 2 Pa.C.S. § 101, and the

[Department’s] own policy DC[-]ADM 815. ([C]opy

attached).

6. Private property cannot be taken by the government

without due process. What process is due, at a minimum, to

one who has lost property via the action of a Pennsylvania

[s]tate [a]gency is addressed under Administrative Agency

Law. [Section 101] of the Administrative Agency Law

defines an ‘adjudication’ as any decision by an agency

affecting property rights. The decision to confiscate my

boots by the [Department], without my consent, is an

adjudication under this definition.

....

8. These boots are also being confiscated in violation of the

[Department’s] own policy and procedures, DC[-]ADM

815, which states[:]

DC[-]ADM 815, pg. 2/3, par[a]g. 6. Exceptions.

5

“[C]ourts reviewing preliminary objections may not only consider the facts pled in the

complaint, but also any documents or exhibits attached to it.” Allen v. Dep’t of Corr., 103 A.3d

365, 369 (Pa. Cmwlth. 2014).

4

a. An inmate will be permitted to keep no longer

permitted items, as long as the items were noted on

[his] [I]nmate[] . . . Personal Property Inventory

form. . . [.] ([C]opy attached).

9. These boots were chosen by the [Department], the only

boots available for purchase, and sold to me by the

[Department] at a profit, for $92.65. ([M]aster

[C]ommissary list attached).

10. The [Department] has a duty to follow [its] own policy

and procedures, in the instant matter DC[-]ADM 815, and

ergo I [have] a right to keep my personal property.

11. The [Department] has a duty, and I [have] a right, to a

pre[-]deprivation hearing before confiscation of personal

property pursuant to [Section 101 of the Administrative

Agency Law].

12. [O’Toole] has no adequate remedy at law, and will

suffer irreparable [sic] harm if an emergency injunction is

not issued in time.

13. [O’Toole] contends that if granted, the [m]andamus

order can be enforced.

WHEREFORE, [O’Toole] request[s] this Honorable Court

grant an [i]njunction to stop confiscation of personal

property before May 11, 2018, enter an [o]rder of

[m]andamus directing [the Department] to follow DC[-

]ADM 815 and allow me to keep my boots and/or to give

me a pre[-]deprivation heari[n]g . . . , and/or to reimburse

me $92.65 for the loss of property, and/or the remedy the

Court finds lawfully appropriate.

Petition at 2-3.

Due Process

Initially, Section 1 of the Fourteenth Amendment to the United States

Constitution provides, in relevant part, that no state shall “deprive any person of life,

liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, § 1.

“Due process under the Pennsylvania Constitution emanates from a number of

5

provisions, including Article I, Sections 1, 9, and 11.” Muscarella v. Commonwealth,

87 A.3d 966, 973 (Pa. Cmwlth. 2014). Article I, Section 1 of the Pennsylvania

Constitution, Pa. Const. art. I, § 1, similarly protects life, liberty and property

interests.6 Article I, Section 9 of the Pennsylvania Constitution provides, in pertinent

part, that a person shall not be “deprived of his life, liberty or property, unless by the

judgment of his peers or the law of the land.” Pa. Const. art. I, § 9. Article I, Section

11 of the Pennsylvania Constitution states, in relevant part, that “[a]ll 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[.]” Pa. Const. art. I, § 11.

1. Protected Property Right

“In order to establish that the [Department] violated his Fourteenth

Amendment right to due process, [O’Toole] must establish that he has been

deprived of life, liberty and property without due process of law. See U.S. Const.

Amend. XIV, § 1.” Silo v. Ridge, 728 A.2d 394, 399 (Pa. Cmwlth. 1999) (emphasis

added). However, this Court is mindful that

[p]rison inmates do not enjoy the same level of

constitutional protections afforded to non-incarcerated

citizens. As the Robson [v. Biester, 420 A.2d 9 (Pa.

Cmwlth. 1980) C]ourt observed, ‘incarceration brings about

the necessary withdrawal or limitation of many privileges

and rights, a retraction justified by the considerations

underlying our penal system.’ [Id.] at 13 (citing Price v.

Johnston, 334 U.S. 266 . . . (1948)).

Bronson v. Cent. Office Review Comm., 721 A.2d 357, 359 (Pa. 1998).

6

Article I, Section 1 of the Pennsylvania Constitution states: “All men are born equally free

and independent, and have certain inherent and indefeasible rights, among which are those of

enjoying and defending life and liberty, of acquiring, possessing and protecting property and

reputation, and of pursuing their own happiness.” Pa. Const. art. I, § 1.

6

Relying upon this Court’s decision in Orozco v. Pennsylvania

Department of Corrections (Pa. Cmwlth. No. 268 C.D. 2013, filed January 14, 2014),

the Department asserts that O’Toole has no property right in his Timberland boots

and, thus, due process is not required. Orozco was based upon an April 14, 2011

Department memorandum7 issued to Pennsylvania inmates temporarily housed in a

Michigan facility8 informing them that they were authorized to bring back to

Pennsylvania only those personal items obtained in Michigan, including boots, then

available in the Pennsylvania prison commissaries. The inmates were instructed to

destroy, consume or ship to their families all non-compliant personal items before

they returned to a Pennsylvania facility. Upon the inmates’ return to Pennsylvania,

Department officials confiscated their non-compliant personal items. The inmates

filed complaints seeking replacement or compensation for the confiscated items. As

in the instant matter, the Department objected because the inmates had no

constitutional right to possess the confiscated property. The trial court consolidated

the cases and sustained the Department’s Preliminary Objections. This Court

affirmed the trial court’s decision on the basis that the Department employees’

purportedly wrongful confiscation was an intentional tort for which they enjoyed

sovereign immunity.

Although Orozco’s complaint did not specifically include a

constitutional property right claim, he argued on appeal that it did, and the Court

considered that claim to the extent it was encompassed therein. The Court ruled that

“[t]he Department had wide discretion to adopt a new policy in order to [specifically

address property transferred with inmates from out-of-state],”9 and the enforcement

7

Despite that the Orozco Court referred to the Department’s document as a bulletin, it was a

memorandum like the one the Department distributed on March 26, 2018 in this case.

8

Orozco was housed in Michigan from March 2009 to May 2011.

9

Although DC-ADM 815 authorized inmates transferred among intrastate facilities to keep

items listed on their property forms, it did not address transfers from out-of-state facilities.

7

of that policy did not violate the affected inmates’ constitutional rights. Id. slip op. at

6. The Orozco Court reasoned:

Prison administrators are afforded wide-ranging deference

in their adoption and enforcement of policies that are

necessary to preserve order, discipline and security in

prisons. Dehart v. Horn, 694 A.2d 16, 19 n.9 (Pa. Cmwlth.

1997). A prison authority’s adoption of policies and

practices creates neither rights in inmates nor a

constitutionally[-]protected interest triggering the inmates’

due process protection. Olim v. Wakinekona, 461 U.S. 238,

249 (1983); Weaver v. Pa. Dep’t of Corr., 829 A.2d 750,

753 (Pa. Cmwlth. 2003); Bullock v. Horn, 720 A.2d 1079,

1082 n.6 (Pa. Cmwlth. 1998). A prison regulation is valid

if it is reasonably related to legitimate penological interests.

Turner v. Safley, 482 U.S. 78, 89 (1987).

In Small v. Horn, . . . 722 A.2d 664 ([Pa.] 1998), inmates

argued that the Department’s policy of restricting their

purchase of garments and requiring removal of all non-

conforming apparel from the prison without just

compensation deprived them of their constitutional property

rights. In rejecting the argument, our Supreme Court stated:

Because of the unique nature and requirements of

the prison setting, imprisonment ‘carries with it the

circumscription or loss of many significant rights . .

. to accommodate a myriad of institutional needs . . .

chief among which is internal security.’ Hudson v.

Palmer, 468 U.S. 517, 524 . . . (1984).

Accordingly, the Department must enforce

reasonable rules of internal prison management

to ensure public safety and prison safety. These

rules must be modified as conditions change,

different security needs arise[], and experience

brings to light weaknesses in current security

measures.

[Small] . . . , 722 A.2d at 669-70. The Court noted that

other courts had recognized that ‘reasonable prison

regulations regarding the quantity and type of property

that inmates may possess do not violate due process

guarantees.’ Id. at . . . 671. See, e.g., Bell v. Wolfish, 441

U.S. 520, 554 (1979) (holding that prisoners’ due process

8

rights with respect to possession of property are not

absolute and are subject to reasonable limitations); Williams

v. Meese, 926 F.2d 994, 998 (10th Cir. 1991) (finding no

deprivation of property rights where a prisoner’s property

was sent to an address of his or her choice).

....

The Department’s bulletins [(i.e., memoranda)10] ‘embody

decisions that are inherently committed to the agency’s

discretion.’ Small, . . . 722 A.2d at 670. The April 14, 2011

bulletin is reasonably related to the Department’s legitimate

penological interest of maintaining order, discipline and

security in the prison.

Orozco slip op. at 4-7 (emphasis added).

O’Toole responds that the Department’s Preliminary Objections should

be overruled because Orozco is factually distinguishable, the Department’s March 26,

2018 policy was not properly implemented, and the Department failed to state how

Timberland boots impair its ability to maintain safety and order.

Despite that Orozco is unreported and may not be cited as binding

precedent, it may be cited “for its persuasive value[.]” Section 414(a) of the

Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).

Although the facts underlying the Orozco decision differ from the instant case, given

the accurate summary of law regarding Department policy changes related to inmate

rights in personal property, this Court agrees with the Department that Orozco is

persuasive here.

The law is well-settled that the Department has broad discretion to

fashion policies about what property inmates may possess, and to modify those

policies as security needs evolve or change. See Small; Dehart. Section III of DC-

ADM 815 Policy Statement (Policy) reflects: “It is the policy of the Department to

10

The documents in dispute in Small were not memoranda but bulletins that expressly

amended the Manual and were correspondingly numbered.

9

ensure . . . inmates are provided the opportunity to purchase a reasonable variety of

items in addition to those furnished by the facility[.]” Policy at 1. Until March 2018,

among the variety of items available for inmate purchase were Timberland and Rocky

boots. However, Section VI of the Policy warns that the DC-ADM 815 “does not

create rights in any person . . . .” Policy at 2. Moreover, Section III of the Policy

declares that “limitations on the . . . variety of inmate property may be imposed for

security . . . and/or safety reasons[.]” Policy at 1. Section 2.A.4.f of the DC-ADM

815 Procedures Manual (Manual) expressly authorizes the Department’s Eastern and

Western Regional Deputy Secretaries to approve requests to discontinue “sales of

specific item[s] in the [a]pproved CI [c]atalog [that] may create a problem” at the

Department’s facilities. Manual at 2-2.

According to the Department, the March 26, 2018 “policy change

occurred after the [widely-covered] February 2018 death of a Department

corrections[] officer who had been kicked in the head by an inmate wearing

Timberland-style boots.” Department Br. at 9 n.1. The Department did not include

this reasoning in the March 26, 2018 memorandum. 11 However, the Orozco Court

deemed valid the policy memorandum therein despite that it likewise did not notify

inmates of the specific safety concern underlying the policy. Moreover, the

Pennsylvania Supreme Court, in Small, upheld the Department’s 1997 revocation of

its policy permitting general population inmates to wear civilian clothing (supplied by

family members or purchased from approved third-party vendors) after civilian

11

O’Toole contends that the Department “ha[s] made no claim of how [his Timberland]

boots impair the ability of maintaining order, . . . impair [the Department’s] ability [to] administer[]

discipline, or after over ten years of sale[], with no change to design or material, the only boots they

[sic] choose [sic] and approved for sale[] are now a security risk.” O’Toole Ans. to Prelim. Obj. at

3. However, O’Toole offers no basis for his claim that the Department must specify to inmates a

safety reason for the policy change.

10

clothing played a role in a prison escape the month before. Finally, the Small Court

ruled, relative to an equal protection argument:

[T]he freedom to wear civilian clothes while incarcerated is

not a fundamental right. Therefore, the [policy change]

need only pass the rational basis test. Under this test, the

government need not have articulated the purpose or

rationale supporting its action; it is enough that some

rationale ‘may conceivably . . . have been the purpose and

policy of the relevant governmental decision maker.’

Nordlinger v. Hahn, 505 U.S. 1, 15 . . . (1992)[.]

Small, 722 A.2d at 672. Certainly, an inmate’s potential use of Timberland or Rocky

boots as a deadly weapon against Department staff is a rational safety reason for the

Department’s Regional Deputy Secretaries and their supervising Executive Deputy

Secretary for Institutional Operations to change the Department’s boot-style policy

without specifying to the inmates the reason therefor.

O’Toole asserts that his property right in his Timberland boots stems

from the fact that the boots “were chosen by the [Department, were] the only boots

available for purchase, and [were] sold . . . by the [Department] at a profit[.]”

Petition ¶ 9. This Court acknowledges that the Approved Master Commissary List

attached to the Petition reflects that Timberland men’s leather boots were included

among the commissary items available for purchase. See Petition Attachment 5

(Approved Master Commissary List, page 11 of 15). In addition, O’Toole’s March 9,

2010 Form DC-153 (Inmate Personal Property Inventory) shows that he possessed

one pair of Timberland boots as of that date.12 See Petition Attachment 3. However,

12

O’Toole’s argument that DC-ADM 815 Section 2.6.a authorizes him to retain his personal

items because they were listed on his Form DC-153 fails. See Petition ¶ 8. Section 2.6.a of DC-

ADM 815 states: “An inmate will be permitted to keep no-longer-permitted items, as long as the

item(s) were noted on the inmate’s [Form DC-153] as of the effective date of the previous DC-

ADM 815, dated May 12, 2008.” Manual at 2-3 (emphasis omitted). Because the Department’s

boot policy was not effective and O’Toole’s Form DC-153 was not completed before May 12, 2008,

DC-ADM 815 Section 2.6.a does not apply in this instance.

11

despite that Timberland boots were previously authorized for commissary purchase,

and O’Toole may own a pair, neither the Manual nor any Department regulation

expressly authorizes inmate purchase and/or possession of Timberland or Rocky

boots. Even assuming, arguendo, that the Manual specifically authorized Timberland

and Rocky boots, the Policy disclaimer that DC-ADM 815 “does not create rights in

any person,” Policy at 2, and Section III of the Policy that “limitations on the. . .

variety of inmate property may be imposed for security . . . and/or safety reasons”,

Policy at 1, “is sufficient to dispel any reasonable expectation that an enforceable

right [was] created by the [Department’s] [previous] policy.” Weaver v. Pa. Dep’t of

Corr., 829 A.2d 750, 753 (Pa. Cmwlth. 2003).

In addition, the Department is authorized to make internal policy

changes by memorandum as it did in this instance.13 See Orozco. In Small, the

Supreme Court ruled that “the Department’s authority to make rules concerning the

management of [SCIs] can fairly be implied from its enabling statute.” Id. at 669.

The Small Court further held that the Department’s bulletins are not regulations and

do not amend existing regulations, “but instead embody decisions that are inherently

committed to the [Department’s] discretion[.]” Id. at 670. The Orozco Court

extended the Small Court’s reasoning about Department bulletins to Department

memoranda like the one issued herein. See Orozco, slip op. at 6 (i.e., the memoranda

too “are inherently committed to the [Department’s] discretion.” (quoting Small, 722

A.2d at 670)).

13

O’Toole asserted in the Petition that the Department failed to follow its policies and

procedures relative to DC-ADM 815. In his answer to the Preliminary Objections, O’Toole

specified that the new boot policy “does not comport with the Department’s Policy Management

Systems Procedures Manual” Section 1.1.1.D (relative to needs assessments preliminary to policy

changes policy). Ans. to Prelim. Obj. ¶ 9. However, the Department’s policy changes are clearly

internal processes, and there is nothing on the face of the Petition that, even if accepted as true,

would establish that the Department violated its policy adoption process before it distributed its

March 26, 2018 memorandum.

12

Based upon the facts O’Toole alleged in his Petition, the Department

exercised its discretion based on security concerns and properly changed a pre-

existing, discretionary policy. “[D]epartment directives specify exactly what

personal property may be possessed or purchased either in the prison commissary or

through outside sources. See DC-ADM 815.” Bronson, 721 A.2d at 359-60. Under

the Department’s new policy, “[p]rison inmates do not have the right to possess

[Timberland or Rocky boots]. . . . In light of the limitations placed on inmate

possession of personal property by the [D]epartment, [O’Toole’s] claim that his

protected constitutional rights have been violated fails.” Id. Because O’Toole does

not have a constitutionally-protected right to possess his Timberland boots, he cannot

demonstrate a valid property interest for which due process was triggered by the

Department’s March 26, 2018 memorandum.14

14

In making their arguments to this Court, both parties cite to Turner, wherein the United

States Supreme Court ruled that even if a prison regulation impinges on an inmate’s constitutional

rights, the regulation can nevertheless be valid if several factors are met.

Turner specifically directed courts to assess: (1) whether there is a

‘valid, rational connection’ between the prison regulation and the

legitimate governmental interest asserted to justify it; (2) whether

alternative means are open to inmates to exercise the asserted right;

(3) what impact an accommodation of the asserted constitutional right

will have on guards, inmates, and prison resources; and, (4) whether

there are ‘ready alternatives’ to the rule that would accommodate

prisoners’ rights at de minimus [sic] cost to penological interests.

Brittain v. Beard, 974 A.2d 479, 486 (Pa. 2009) (quoting Turner, 482 U.S. at 89-91). However,

Turner involved regulations promulgated by the Missouri Division of Corrections. At issue here is

a boot policy rather than a regulation. See Small; Orozco. Moreover, based on the Court’s holding

herein that the policy does not impinge on any constitutional rights in the first instance, this Court

need not further apply the Turner factors.

Notwithstanding, the Pennsylvania Supreme Court has specifically ruled that “where a

prisoner’s property is sent to an address of his choice, no deprivation of property has taken place

because, although the prisoner no longer has possession of the property, he still retains control over

it.” Small, 722 A.2d at 671. Thus, even if O’Toole could establish a protected property right in his

Timberland boots, not all of the factors would be met, since the Department’s March 26, 2018

memorandum expressly allowed him to mail them out of the SCI. The fact that O’Toole is serving

13

2. Adjudication

“It is well settled that procedural due process concerns are implicated

only by adjudications, not by state actions that are legislative in character.” Small,

722 A.2d at 671. Section 101 of the Administrative Agency Law defines

“adjudication” as “[a]ny final order, decree, decision, determination or ruling by an

agency affecting personal or property rights . . . of any or all of the parties to the

proceeding in which the adjudication is made.” 2 Pa.C.S. § 101. “Unless ‘an inmate

can identify a personal or property interest . . . not limited by [Department]

regulations and which has been affected by a final decision of the [D]epartment[,]’

the decision is not an adjudication subject to the court’s review.” Bronson, 721 A.2d

at 359 (quoting Lawson v. Dep’t. of Corr., 539 A.2d 69, 71 (Pa. Cmwlth. 1988)).

Ultimately, “[w]here no right, privilege or immunity of a person is in jeopardy, an

agency’s action does not constitute an adjudication.” In re Malehorn, 106 A.3d 816,

819 (Pa. Cmwlth. 2014), aff’d in part sub nom. Frasconi v. Dep’t of State, Bureau of

Comm’ns, Elections, & Legislation, 111 A.3d 167 (Pa. 2015). Here, because the

Department’s March 26, 2018 memorandum did not affect a right or privilege, it

“was not an adjudication, [and O’Toole] cannot succeed on a procedural due process

theory.” Small, 722 A.2d at 671; see also 2 Pa.C.S. § 101.

Right to Relief

In the Petition, O’Toole seeks mandamus and injunctive relief.

[M]andamus is an extraordinary writ designed to compel

performance of a ministerial act or mandatory duty where

there exists a clear legal right in the petitioner, a

corresponding duty in the respondent, and want of any other

a life sentence without parole does not change the fact that he would still retain control over his

boots.

14

adequate and appropriate remedy. Mandamus is not

available to establish legal rights, but is appropriate only

to enforce rights that have been established.

Stodghill v. Pa. Dep’t of Corr., 150 A.3d 547, 551 (Pa. Cmwlth. 2016), (quoting

Wilson v. Pa. Bd. of Prob. & Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008)

(citations omitted)), aff’d, 177 A.3d 182 (Pa. 2018). “Mandamus is not used to direct

the exercise of judgment or discretion of an official in a particular way.” Clark v.

Beard, 918 A.2d 155, 159 (Pa. Cmwlth. 2007). Therefore, this Court is prohibited

from directing the Department to change its discretionary boot policy or carry it out

in a particular manner.

“To prevail in an action for injunction, a party must [likewise] establish

that his right to relief is clear, that an injunction is necessary to avoid an injury that

cannot be compensated by damages, and that greater injury will result from refusing

rather than granting the relief requested.” Buehl v. Beard, 54 A.3d 412, 419-20 (Pa.

Cmwlth. 2012) (emphasis added), aff’d, 91 A.3d 100 (Pa. 2014). As in a mandamus

action, O’Toole must, at a minimum, be able to establish a viable due process claim

in order to obtain injunctive relief. In Myers v. Pennsylvania Department of

Corrections (M.D. Pa. No. 1:18-CV-00940, signed June 22, 2018), the United States

District Court for the Middle District of Pennsylvania dismissed an inmate’s

complaint filed pursuant to Section 1983 of the United States Code, 42 U.S.C. § 1983

(Section 1983 claim), inter alia, for failure to state a viable injunctive relief claim

prohibiting the Department from taking his Timberland boots without compensation.

Although the inmate’s arrangements for his boots rendered the injunction claim moot,

the court nevertheless declared that if that were not the case, the inmate would not be

entitled to injunctive relief since (despite the Department’s declaration that no boot

refunds would be issued) monetary damages could fully compensate the inmate for

his loss. We find Myers persuasive in that, if O’Toole met the other requirements, he

still would not be entitled to injunctive relief because he may have money damages

15

available to him.15 However, because O’Toole does not have a property right subject

to due process protection, he cannot establish any clear legal right to relief and, thus,

this Court is precluded from granting him mandamus or injunctive relief.

Conclusion

Accepting as true all of the Petition’s well-pled allegations and

inferences reasonably deduced therefrom, it “appear[s] with certainty that the law will

not permit recovery.” Torres, 997 A.2d at 1245. Because O’Toole has not

articulated any factual or legal basis to support his due process claim, the

Department’s Preliminary Objections are sustained, and O’Toole’s Petition is

dismissed with prejudice.

___________________________

ANNE E. COVEY, Judge

15

“‘Generally, decisions of federal district courts and courts of appeals are not binding on

this Court, . . . but they may have persuasive value.’ Unreported federal court decisions may also

have persuasive value.” Nagle v. Trueblue, Inc., 148 A.3d 946, 959 n.15 (Pa. Cmwlth. 2016)

(quoting GGNSC Clarion LP v. Kane, 131 A.3d 1062, 1069 n.15 (Pa. Cmwlth.), aff’d, 152 A.3d

983 (Pa. 2016)).

16

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian O’Toole, :

Petitioner :

:

v. :

:

Pennsylvania Department :

of Corrections, : No. 228 M.D. 2018

Respondent :

ORDER

AND NOW, this 16th day of October, 2018, the Pennsylvania

Department of Corrections’ Preliminary Objections to Brian O’Toole’s (O’Toole)

Petition for Review (Petition) are sustained and O’Toole’s Petition is dismissed with

prejudice.

___________________________

ANNE E. COVEY, Judge