C. Talbert v. G. Little

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Charles Talbert, :

Petitioner :

:

v. : No. 78 M.D. 2022

: Submitted: September 30, 2022

George Little, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE DUMAS FILED: February 3, 2023

Charles Talbert (Talbert), a pro se inmate, has filed a petition for review

in this Court’s original jurisdiction against George Little (Little), the then-Acting

Secretary of the Pennsylvania Department of Corrections (DOC).1 Talbert contends

that Little violated his constitutional right to phone access and that Little

intentionally and negligently inflicted emotional distress by depriving him of that

right. Little has filed preliminary objections, and Talbert has filed an application for

summary relief. We sustain Little’s preliminary objections, grant Talbert leave to

file an amended petition for review within 30 days of this decision and order, and

dismiss Talbert’s application for summary relief as moot.

1

Courts have labeled Talbert a serial litigant. Talbert v. City of Phila., No. 21-4303, 2021

WL 4552390 (E.D. Pa., Oct. 5, 2021); accord Talbert v. Carney, No. 18-1620, 2018 WL 4839038

(E.D. Pa., Oct. 3, 2018); Talbert v. Carney, No. 18-1620, 2018 WL 3520676, *1 (E.D. Pa., July

20, 2018) (noting filing of “almost three dozen lawsuits over the past couple of years”).

I. BACKGROUND

We state the facts as gleaned from the pleadings.2 During the COVID

pandemic, Talbert was housed in “segregated restrictive housing.” Pet. for Rev.,

2/25/22, ¶ 6.3 Talbert alleges that John Wetzel, the prior Secretary of DOC,

permitted all inmates in segregated restrictive housing to use the phone to speak with

their families. Id. ¶ 6. Talbert claims that after Little assumed his post as Acting

Secretary of DOC, he “refused to allow segregated inmates . . . to communicate with

their loved ones.” Id. ¶ 8. Talbert contends that “due to his father being sick and of

old age, [he] was unable to communicate with him by letter.” Id. ¶ 7. As a result of

Little’s actions, Talbert alleges that he “lost all forms of available communication,”

and was unable to communicate with his father before he passed away. Id. ¶¶ 9-11.4

Consequently, Talbert alleges he suffered emotional distress and other related

injuries. Id. ¶ 13.

Talbert raises three counts: (1) violation of article I, section 7 of the

Pennsylvania Constitution; (2) violation of the First Amendment of the United States

Constitution; and (3) intentional infliction of emotional distress. Id. ¶¶ 14-27.5 The

2

“[W]e must . . . accept as true all well-pleaded, material, and relevant facts alleged in the

[petition for review] and every inference that is fairly deducible from those facts.” Raynor v.

D’Annunzio, 243 A.3d 41, 52 (Pa. 2020) (cleaned up). Also, “we are generally inclined to construe

pro se materials liberally.” Robinson v. Schellenberg, 729 A.2d 122, 124 (Pa. Cmwlth. 1999).

3

The docket reflects a filing date of February 23, 2022, but the legible timestamps reflect

a filing date of February 25, 2022. Because of other similar date discrepancies in the record, we

refer to either the dates set forth in any attached certificates of service or the timestamped dates if

such certificates were not attached. See generally Thomas v. Elash, 781 A.2d 170, 176 (Pa. Super.

2001) (holding that “the prisoner mailbox rule applies to all pro se legal filings by” prisoners).

4

In other words, although Talbert alleges he lost “all . . . available” forms of

communication, Talbert did not explicitly plead that Little denied Talbert all means of

communicating with Talbert’s father.

5

Pa. Const. art. I, § 7; U.S. Const. amend. I. We acknowledge that Talbert labels his third

count as intentional and negligent infliction of emotional distress. But Talbert specifically alleges

2

essence of Talbert’s state and federal constitutional claims is that Little deprived

Talbert of his constitutional right to free speech by discontinuing only phone access

during the pandemic. Id. ¶¶ 15-16, 20, 23. Talbert seeks money damages and

mandatory injunctive6 relief in the form of phone access once every three days until

the pandemic is over. Id. at 4-5 (ad damnum clauses) & Order. On March 25, 2022,

this Court ordered that Little file a responsive pleading within 30 days. Order,

3/25/22.

Little filed preliminary objections in the nature of a demurrer. See

generally Prelim. Objs., 4/25/22. Little asserts (1) that Talbert has no protected

interest in phone access; (2) there is no private cause of action for money damages

under the state constitution; (3) sovereign immunity; and (4) qualified governmental

immunity. See generally id. Talbert filed a timely answer in the form of a brief,

Answer to Prelim. Objs., 5/13/22, and also filed another court-ordered brief in

opposition. Br. in Opp’n, 6/2/22.7

II. DISCUSSION

In support of his preliminary objections, Little argues that Talbert is not

in the general population and is housed in the restricted housing unit under

disciplinary custody. Little’s Br. at 7. Therefore, Little maintains that Talbert had

that Little’s acts and omissions deprived Talbert of “his constitutional right to communicate” and

was “for the purpose of knowingly causing” him emotional distress. Pet. for Rev., ¶ 25. Thus, we

construe Talbert’s claim as limited to intentional infliction of emotional distress. Cf. Stackhouse

v. Commonwealth, 832 A.2d 1004, 1009 (Pa. 2003) (explaining that courts review the substance,

and not the label, of the claim to resolve a court’s jurisdiction).

6

Generally, mandatory injunctions “command the performance of some positive act to

preserve the status quo” and prohibitory injunctions “enjoin the doing of an act that will change

the status quo.” Mazzie v. Commonwealth, 432 A.2d 985, 988 (Pa. 1981).

7

Talbert also filed a motion for a preliminary injunction and a temporary restraining order,

which this Court denied. Order, 4/27/22. Talbert appealed to our Supreme Court, which affirmed.

Talbert v. Little (Pa., No. 17 EAP 2022, filed Jan. 19, 2023) (per curiam).

3

no right to unlimited phone access, particularly when he had other forms of

communication available, including “written communication, visitation, or virtual

visitation.” Id. at 8 (stating that Talbert “has other means of communicating with

family”). Because Talbert is housed in “disciplinary segregation [and he] has other

means of communicating” with his father, Little asserts that we should dismiss

Talbert’s constitutional claims. Id. at 8-9. Little also reasons that (a) sovereign

immunity bars Talbert’s claims, including his request for a mandatory injunction and

his intentional tort claims, and (b) there is no private cause of action for money

damages under the Pennsylvania Constitution. Id. at 10-11.8

A “demurrer is a preliminary objection to the legal sufficiency of a

pleading and raises questions of law[.]” Raynor v. D’Annunzio, 243 A.3d 41, 52

(Pa. 2020) (cleaned up). We sustain a demurrer only when the law undoubtedly

precludes recovery. Id. If doubt exists, then we should overrule the demurrer. Bilt-

Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270, 274 (Pa. 2005).

In resolving the legal sufficiency, we review the initiating pleading to

determine whether it apprises “the [respondent] of the claim being asserted and

summarize[s] the essential supporting facts,” as “Pennsylvania is a fact-pleading

state.” Bricklayers of W. Pa. Combined Funds, Inc. v. Scott’s Dev. Co., 90 A.3d

8

Talbert counters that he has a federal constitutional and statutory right to speak with his

family, specifically his grandmother, and he sufficiently alleges a violation of that right. Br. in

Opp’n at 3-5 (unpaginated). Although Talbert’s petition for review alleges Talbert was unable to

communicate with his father, Talbert’s brief in opposition to Little’s preliminary objections alleges

he is unable to communicate with his grandmother. Id. at 4-5. In any event, Talbert argues that

caselaw does not support DOC’s policy, which prohibits inmates with “disciplinary custody” status

from using the phone. Id. at 4-6. Talbert also contends that Little has no sovereign immunity as

an officer of the Commonwealth and has no qualified immunity. Id. at 7.

Neither party addressed whether a prisoner subjected to disciplinary custody status has a

right to phone access under the Pennsylvania Constitution. See generally S.B. v. S.S., 243 A.3d

90, 112 (Pa. 2020) (noting that under “certain circumstances,” article I, section 7 of the

Pennsylvania Constitution provides broader freedom of speech than its federal counterpart).

4

682, 694 & 694 n.14 (Pa. 2014) (Bricklayers) (cleaned up). But if we sustain a

demurrer, and “it is possible that the pleading can be cured by amendment, a court

must give the pleader an opportunity to file an amended” petition for review. Jones

v. City of Phila., 893 A.2d 837, 846 (Pa. Cmwlth. 2006) (cleaned up).

By way of background, the First Amendment protects an inmate’s right

to (a) communicate with family and friends and (b) reasonable access to and use of

a phone. Chimenti v. Pa. Dep’t of Corr., 720 A.2d 205, 213 n.11 (Pa. Cmwlth.

1998). But an inmate “has no right to unlimited telephone use,” and a prison may

impose “rational limitations” based on “legitimate security interests.” Id. (cleaned

up); accord Snider v. Pa. Dep’t of Corr., 505 F. Supp. 3d 360, 433 n.359 (M.D. Pa.

2020); Almahdi v. Ashcroft, 310 Fed. App’x 519, 522 (3d. Cir. 2009) (per curiam).9

Prison-imposed “rational limitations” are “likely to be considered

reasonable” “where there are alternative means of communicating with persons

outside of the prison, such as in person visits or mail . . . .” Pumba v. Miller, No.

9

In Almahdi, the inmate alleged that the prison’s restrictions on his phone use violated his

First Amendment right. Almahdi, 310 Fed. App’x at 521-22. The Almahdi Court affirmed the

grant of summary judgment adverse to the inmate, reasoning that the inmate made “no assertion”

and there was “no evidence” that the inmate “lacked alternative means of communicating with

persons outside the prison.” Id. at 522 (citation omitted). We acknowledge that most federal court

decisions, including non-precedential decisions in the Federal Appendix reporter, do not bind this

Court. NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 303 (Pa. Super. 2012)

(NASDAQ); accord O’Toole v. Pa. Dep’t of Corr., 196 A.3d 260, 271 n.15 (Pa. Cmwlth. 2018).

However, it is appropriate to follow Third Circuit decisions “in preference to that of other

jurisdictions,” to preclude litigants from achieving “a different result in federal court than would

be obtained in state court.” See NASDAQ, 52 A.3d at 303 (citation omitted).

Nonetheless, we observe that in Pope v. Hightower, 101 F.3d 1382 (11th Cir. 1996), the

Eleventh Circuit held that a prisoner’s First Amendment right to communicate with his family was

not violated by the prison’s policy limiting phone contact because the prisoner “had alternate

means of exercising this right” including receiving visitors and correspondence. Pope, 101 F.3d

at 1385. The Pope Court noted that the “availability of other avenues suggests that we should be

particularly conscious of the measure of judicial deference owed to correctional officials in

gauging the validity of the regulation.” Id. (cleaned up).

5

22-2050, 2022 WL 2757371, *5 (E.D. Pa., July 14, 2022) (Pumba I) (citing Almahdi,

310 Fed. App’x at 522). “Legitimate security interests” include whether the inmate

is in the general population or in disciplinary segregation, i.e., segregated restricted

housing. See generally Feliciano v. Pa. Dep’t of Corr., 250 A.3d 1269, 1277 (Pa.

Cmwlth. 2021). For example, inmates “in general population may make phone

calls” in accordance with the applicable statutes and DOC policies. 37 Pa. Code §

93.7. In contrast, inmates in disciplinary custody status, like Talbert, have no phone

privileges absent staff approval. DC-ADM, § 6, at 6-1 (explaining that the “Program

Review Committee” may approve phone privileges).10

For instance, in Pumba v. Miller, No. 22-2050, 2022 WL 11804036

(E.D. Pa., Oct. 20, 2022) (Pumba II), a prisoner was placed in disciplinary

segregation. Pumba II, 2022 WL 11804036, at *6. The pro se prisoner alleged that

for 17 months, he was not permitted to have any “telephone calls, have a visitor,

send or receive mail, or otherwise communicate with friends or family.” Id. The

Pumba II court reviewed the pro se complaint to resolve whether it raised a

cognizable claim. Id. at *3. The court held that because the prisoner raised “a

plausible First Amendment claim” for a complete deprivation of communication

against one of the defendants, the claim could proceed. Id. at *6.

Few courts, however, have addressed the issue of a prisoner’s First

Amendment right to use the phone to communicate with family during a pandemic.

In McGlory v. Michigan Department of Corrections, No. 2:20-cv-81, 2020 WL

4362307 (W.D. Mich., July 30, 2020), the prisoners alleged that their inability to call

10

We may take judicial notice of DOC’s policies, such as DC-ADM 801, which states the

general procedures and guidance for disciplinary custody status inmates. Dunbar v. Wetzel (Pa.

Cmwlth., No. 75 M.D. 2019, filed Jan. 21, 2020) (per curiam), slip op. at 1 n.1, 2020 WL 283899,

*1 n.1.

6

their families during an eight-day quarantine following exposure to COVID violated

their First Amendment right. McGlory, 2020 WL 4362307, at *3. The McGlory

Court dismissed the prisoners’ claim because the phone restriction appeared “to be

rationally related to the need to prevent possible spread of COVID-19.” Id. at *3, 7.

Similarly, in Pringle v. Jose, No. 21-cv-00648, 2021 WL 1893141

(N.D. Cal., May 7, 2021), a pro se prisoner alleged that the prison denied him his

First Amendment right to phone access, apparently due to the prison’s efforts to

inhibit the transmission of COVID. Pringle, 2021 WL 1893141, *2. The Pringle

court dismissed the prisoner’s complaint, reasoning, inter alia, that the prisoner must

allege additional facts as to whether he “was able to communicate with persons

outside the jail by means other than a telephone.” Id.

In Rodriguez v. Newsom, No. 1:20-cv-01792, 2022 WL 783722 (E.D.

Cal., March 15, 2022), a pro se prisoner alleged that he was improperly quarantined

and thus could not use the phone to communicate with his sick mother. Rodriguez,

2022 WL 783722, *3. The district court dismissed the complaint, reasoning that the

prisoner needed to supply additional facts including the terms of his phone privileges

and whether he was allowed to correspond with his mother using other forms of

communication. Id. at *4; see Butler v. Colon, No. 1:20-cv-25123, 2022 WL

1301720, *4 (S.D. Fla., Mar. 22, 2022) (dismissing the pro se prisoner’s complaint

that he could not communicate with his family by phone because the record reflected

he could use the mail).11

11

Notwithstanding Chimenti, the Rodriguez court distinguished between the prisoner’s

First Amendment right to phone access and the prisoner’s constitutional right to associate with his

sick mother. Rodriguez, 2022 WL 783722, *3-4. “Courts have not clearly defined the scope of

this right, the extent to which it survives incarceration or whether it arises from the First

Amendment or the substantive due process component of the Fourteenth Amendment[,]” U.S.

Const. amend. XIV. Id. at *4 (cleaned up). One court dismissed a pro se prisoner’s constitutional

7

Finally, with respect to intentional tort claims, this “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.” La Frankie v. Miklich, 618

A.2d 1145, 1149 (Pa. Cmwlth. 1992) (citation omitted); accord Kull v. Guisse, 81

A.3d 148, 157 (Pa. Cmwlth. 2013). With respect to relief, “sovereign immunity bars

claims seeking mandatory injunctions to compel affirmative actions by

Commonwealth officials[.]” Stackhouse v. Pa. State Police, 892 A.2d 54, 61 (Pa.

Cmwlth. 2006) (citation omitted).

Initially, Little asserts that Talbert has no constitutional right to a

telephone while in disciplinary custody. Little’s Br. at 7-8. Little, however, cites no

relevant Pennsylvania caselaw and did not identify any legitimate security interests

in restricting telephone privileges to inmates in disciplinary custody. Id. at 8;

Chimenti, 720 A.2d at 213 n.11. Little also fails to discuss why Talbert’s state

constitutional claim was legally insufficient. While Little correctly notes that he is

protected by sovereign immunity for any intentional torts, the defense is valid only

if he acted within the scope of his employment. See La Frankie, 618 A.2d at 1149.

Talbert, however, does not allege any relevant supporting facts whatsoever as to

Little’s employment. See generally Bricklayers, 90 A.3d at 694. On the other hand,

assuming Talbert raises valid constitutional claims, we agree with Little that

Talbert’s requested remedy—a mandatory injunction commanding phone access—

is barred by sovereign immunity. See Stackhouse, 892 A.2d at 61.

right of association claim, which was grounded in the prison’s ban on visitation. Watford v.

Leabough, No. 3:20-cv-676, 2022 WL 363957, *10 (E.D. Va., Feb. 7, 2022). The Watford court

noted that the visitation ban promoted a valid prison objective of inmate safety and that the prisoner

had alternative means of communicating with his family, including phone calls and letters. Id.

8

We recognize that federal courts have dismissed pro se complaints

raising claims similar to Talbert’s claims. See, e.g., McGlory, 2020 WL 4362307,

at *7; Pringle, 2021 WL 1893141, at *2; Rodriguez, 2022 WL 773722, at *4. But

because we liberally construe pro se pleadings, see Robinson, 729 A.2d at 124, and

because we are reluctant to conclude that the law precludes recovery based on

Little’s scant legal arguments, we hold that Talbert may amend his petition for

review. See Jones, 893 A.2d at 846. We add that this will permit Talbert a chance

to resolve the factual discrepancies involving his grandmother and father, revise his

requested relief, and amend his claims to include all essential supporting facts. See

Bricklayers, 90 A.3d at 694; Stackhouse, 892 A.2d at 61.

III. CONCLUSION

Accordingly, we sustain Little’s preliminary objections, dismiss the

petition for review without prejudice, grant Talbert leave to file an amended petition

for review within 30 days of the date of this decision and order, and dismiss Talbert’s

application for summary relief as moot.

LORI A. DUMAS, Judge

9

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Charles Talbert, :

Petitioner :

:

v. : No. 78 M.D. 2022

:

George Little, :

Respondent :

ORDER

AND NOW, this 3rd day of February, 2023, we sustain the preliminary

objections filed by George Little, dismiss the petition for review filed by Charles

Talbert (Talbert) without prejudice, grant Talbert leave to file an amended petition

for review within 30 days of the date of this decision and order, and dismiss Talbert’s

application for summary relief as moot.

LORI A. DUMAS, Judge