D. Holmes v. PA DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darell Holmes, :

Petitioner :

:

v. :

:

Pennsylvania Department :

of Corrections, : No. 143 M.D. 2019

Respondent : Submitted: November 1, 2019

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COVEY FILED: February 3, 2020

Before this Court are the Pennsylvania Department of Corrections’

(Department) preliminary objections (Preliminary Objections) to Darell Holmes’

(Holmes) pro se petition for review in the nature of a complaint for declaratory

judgment and injunctive relief (Petition) filed in this Court’s original jurisdiction.

After review, we sustain the Preliminary Objections and dismiss the Petition.

Background

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

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

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

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

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

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

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

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

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

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

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

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

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

refiled. See Petition ¶53.

Due to the Misconduct, Holmes remained in the RHU for 60 days and

then in a step-down unit for another 54 days. See Petition ¶65. Holmes was also

denied contact visits for 90 days. See Petition ¶40. The Department returned Holmes

to general population on December 11, 2018, the day after the Misconduct was

vacated.

Facts

On March 11, 2019, Holmes filed the Petition seeking: (1) a declaration

that the Department’s acts and omissions with respect to the Misconduct violated

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

injunction directing the Department to remove the Misconduct from Holmes’

institutional file; (3) an injunction directing the Department to return Holmes to his

status as it existed before the Misconduct was filed; (4) an injunction directing the

Department to reestablish its Misconduct Policy (DC-ADM-801); (5) nominal

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

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

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

2

immunity;1 (3) the Prison Litigation Reform Act (PLRA)2 bars Holmes’ claim for

compensatory damages; (4) Holmes’ allegations do not support a claim for punitive

damages;3 and (5) Holmes does not state a due process claim.

Discussion

The law is well settled:

In ruling on preliminary objections, we must accept as true

all well-pleaded material allegations in the petition for

review, as well as all inferences reasonably deduced

therefrom. The Court need not accept as true conclusions

of law, unwarranted inferences from facts, argumentative

allegations, or expressions of opinion. In order to sustain

preliminary objections, it must appear with certainty that

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

resolved by a refusal to sustain them.

A preliminary objection in the nature of a demurrer admits

every well-pleaded fact in the [petition for review in the

nature of a] complaint and all inferences reasonably

deducible therefrom. It tests the legal sufficiency of the

challenged pleadings and will be sustained only in cases

where the pleader has clearly failed to state a claim for

which relief can be granted. When ruling on a demurrer,

a court must confine its analysis to the [petition for

review in the nature of a] complaint.

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

omitted). “[C]ourts reviewing preliminary objections may not only consider the facts

pled in the complaint, but also any documents or exhibits attached to it.” Allen v.

Dep’t of Corr., 103 A.3d 365, 369 (Pa. Cmwlth. 2014).

1

“Pennsylvania courts . . . have allowed parties to plead the affirmative defense of immunity

as a preliminary objection where the defense is clearly applicable on the face of the complaint.”

Mazur v. Cuthbert, 186 A.3d 490, 497 (Pa. Cmwlth. 2018) (quoting Feldman v. Hoffman, 107 A.3d

821, 829 (Pa. Cmwlth. 2014)). Here, the immunity defense is clearly applicable on the face of the

Petition.

2

42 Pa.C.S. §§ 6601-6608.

3

Based on this Court’s review of the Petition, Holmes is not seeking punitive damages.

3

Here, in response to Holmes’ request for an injunction directing the

Department to remove the Misconduct from his institutional file, the Department

attached a record of the Misconduct Exoneration to its Preliminary Objections as

Exhibit B.

In asserting th[is] fact[], which [is] not apparent on the face

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

‘speaking demurrer.’ Barndt v. Dep[’t] of Corr[.], 902 A.2d

589, 591 n.2 (Pa. Cmwlth. 2006). However, [Holmes] did

not file preliminary objections challenging the procedural

propriety of [the Department’s] Preliminary Objection;

accordingly, that issue is waived. See Dep[’t] of Justice v.

Knox, . . . 370 A.2d 1238, 1240 n.4 (Pa. Cmwlth. 1977)

(holding that, when objected to, ‘speaking demurrers’

should not be considered) (citing Brennan v. Smith, . . . 299

A.2d 683 (Pa. Cmwlth. 1972)); Pa. R.C.P. No. 1032(a)

(stating, inter alia, that a party waives all objections which

are not presented by preliminary objection, answer, or

reply).

Tucker v. Beard (Pa. Cmwlth. No. 359 M.D. 2010, filed January 4, 2011), slip op. at

4 n.2; see also Colonial Sur. Co. v. Redevelopment Auth. of the County of Fayette

(Pa. Cmwlth. No. 859 C.D. 2016, filed July 25, 2017)4 (petitioner cannot claim that

the trial court erred in considering anything outside the petition because petitioner did

not object to the respondent’s preliminary objections). Here, Holmes did not file a

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

Accordingly, this Court holds that based on the Misconduct Exoneration, Holmes’

request for an injunction directing the Department to remove the Misconduct from his

institutional file is now moot.

4

Pursuant to Section 414(a) of the Commonwealth Court Internal Operating Procedures,

unreported opinions of a panel of the Commonwealth Court, if issued after January 15, 2008, may

be cited for persuasive value, but not as binding precedent. 210 Pa. Code § 69.414(a).

4

In its first Preliminary Objection, the Department asserts that, to the

extent Holmes is challenging the initial and mid-level Misconduct review, this Court

lacks jurisdiction.

Holmes challenges the Department’s placing him in the RHU for 60

days, then to a step-down unit for another 54 days, and denying him contact visits for

90 days as a result of his Misconduct. “This Court and our Pennsylvania Supreme

Court have previously held that [the Department’s] decision[s] concerning charges of

misconduct against an inmate are beyond this Court’s . . . original jurisdiction.”

Brown v. Pa. Dep’t of Corr., 913 A.2d 301, 305 (Pa. Cmwlth. 2006).5 Accordingly,

this Court has no authority to address this claim and the Department’s first

Preliminary Objection is sustained.

The Department next argues that Holmes’ intentional tort claims are

barred by sovereign immunity and must be dismissed.

Holmes is claiming emotional and psychological damage due to the

Department’s actions. To the extent Holmes is asserting an intentional tort claim,

“[t]his Court has held that when an employee of a Commonwealth agency was acting

within the scope of his or her duties, the Commonwealth employee is protected by

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

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

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

emotional and psychological damage, nor did he allege that the issuance of the

Misconduct and subsequent procedures were not within the Department employees’

scope of duties. To the contrary, Holmes alleged that the Department followed its

current Misconduct Policy and requested this Court to reissue a modified Misconduct

Policy limiting pre-hearing confinement to specified misconduct. See Petition at 22.

5

In Brown, as here, the petitioner challenged, inter alia, the Department’s decision to place

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

5

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

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

immunity. Accordingly, this Preliminary Objection is sustained.

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

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

Pennsylvania Constitution from recovering any damages.

Initially, Section 6603 of the PLRA provides, in relevant part:

(a) Limitations on remedies for [f]ederal claims.--Prison

conditions litigation filed in or remanded to a court of this

Commonwealth alleging in whole or in part a violation of

[f]ederal law shall be subject to any limitations on remedies

established by [f]ederal law or [f]ederal courts with respect

to the [f]ederal claims.

(b) Limitations on remedies under Pennsylvania law.--

Prison conditions litigation arising in whole or in part due to

an allegation of a violation of Pennsylvania law shall be

subject to the limitations set forth in this act with respect to

those claims arising under Pennsylvania law.

42 Pa.C.S. § 6603. To the extent Holmes is seeking compensatory damages for

mental and emotional injuries under federal law, Section 1997e(e) of the United

States Code mandates: “No [f]ederal civil action may be brought by a prisoner

confined in a jail, prison, or other correctional facility, for mental or emotional injury

suffered while in custody without a prior showing of physical injury or the

commission of a sexual act . . . .” 42 U.S.C. § 1997e(e). Here, Holmes has not

alleged a prior physical injury or a sexual act. Moreover, to the extent Holmes is

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

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

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

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

Objection is sustained.

6

The Department next objects to Holmes’ Petition because Holmes’

allegations cannot support a due process claim as a matter of law.

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

to the Honor Block was a due process violation, “[t]he requirements of procedural

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

Amendment’s protection of liberty and property. When protected interests are

implicated, the right to some kind of prior hearing is paramount.” Bd. of Regents of

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

“The [c]ourts of this Commonwealth and the [f]ederal [c]ourts have

consistently held that prison officials have the authority to determine where a prisoner

should be housed[,] and that the [d]ue [p]rocess [c]lause imposes few restrictions on

the use of that authority.” Singleton v. Lavan, 834 A.2d 672, 675 (Pa. Cmwlth.

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

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

violate his due process rights. Therefore, Holmes has failed to state a due process

claim upon which relief can be granted. As such, Holmes would not be entitled to an

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

Honor Block. Accordingly, this Preliminary Objection is sustained.

Finally, with respect to Holmes’ request for an injunction to stop the

Department from using its current misconduct policy (and reissue a modified policy

allowing prisoners to remain in the general population for minor offenses), the

Department argues that such request is not within the province of the courts because

it is a matter of prison administration. Specifically,

[t]he United States Supreme Court generally defers to the

judgment of prison officials in upholding regulations

against constitutional challenge, because the problems of

American prisons are complex and intractable ones with

which the courts are ill equipped to deal. Shaw v.

7

Murphy, 532 U.S. 223, 229 . . . (2001). Accordingly, it

employs a ‘unitary, deferential standard’ in reviewing

prisoners’ constitutional claims. Id. ‘When a prison

regulation impinges on inmates’ constitutional rights, the

regulation is valid if it is reasonably related to legitimate

penological interests.’ Id. (quoting Turner v. Safley, 482

U.S. 78, 89 . . . (1987)).

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

2004) (emphasis added).

Here, Holmes claims the Department should modify its misconduct

policy to permit prisoners to remain in the general population when they are charged

with less serious offenses. The United States Supreme Court has instructed that

“[w]e must accord substantial deference to the professional judgment of prison

administrators, who bear a significant responsibility for defining the legitimate goals

of a corrections system and for determining the most appropriate means to

accomplish them[,]” and “[t]he burden . . . is not on the [s]tate to prove the validity of

prison regulations but on the prisoner to disprove it.” Overton v. Bazzetta, 539 U.S.

126, 132 (2003). Because Holmes’ allegations do not disprove the validity of the

Department’s current Misconduct Policy, this Preliminary Objection is sustained.

Conclusion

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

Petition, that the law will not permit the relief requested therein, Holmes cannot

establish a clear legal right to relief. Accordingly, the Department’s Preliminary

Objections are sustained, and Holmes’ Petition is dismissed.

___________________________

ANNE E. COVEY, Judge

8

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darell Holmes, :

Petitioner :

:

v. :

:

Pennsylvania Department :

of Corrections, : No. 143 M.D. 2019

Respondent :

ORDER

AND NOW, this 3rd day of February, 2020, the Pennsylvania

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

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

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

___________________________

ANNE E. COVEY, Judge