J.P. Kollock, and All Others Similarly Situated v. Bruce R. Beemer, Attorney General of the Commonwealth of Pennsylvania ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jason P. Kollock, Lead Petitioner :
and All Others Similarly Situated, :
Petitioners :
:
v. : No. 24 M.D. 2017
: Submitted: June 23, 2017
Bruce R. Beemer, Attorney General :
of the Commonwealth of Pennsylvania :
John E. Wetzel, Secretary, PA Dept. :
of Corrections, Shirley Moore-Smeal, :
Exec. Deputy Sec. PA-DOC Steven :
Glunt, Deputy Sec. W.D., PA-DOC :
Theron R. Perez, Esq., Chief Counsel, :
PA-DOC John E. Tuttle, Acting Chair :
of the Board, PBPP Alan Robinson, :
Chief Counsel, PBPP Meghan M. Dade, :
Exec. Dir. S.O.A.B., PBPP, :
Respondents :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: November 30, 2017
Before this Court in our original jurisdiction are the preliminary
objections filed by officers and employees of the Pennsylvania Department of
Corrections (DOC) and the Pennsylvania Board of Probation and Parole (PBPP)
(collectively, Agency Respondents) and the preliminary objections filed by former
Attorney General of the Commonwealth of Pennsylvania, Bruce R. Beemer
(Beemer), to a petition for review filed by Jason P. Kollock (Kollock), acting pro se.1
For the reasons set forth below, we sustain Agency Respondents’ and Beemer’s
preliminary objections.
Kollock is an inmate at the State Correctional Institution at Houtzdale
(SCI-Houtzdale) as a result of his conviction as a sex offender. DOC requires that
convicted sex offenders complete a sex offender treatment program (Program)
before DOC will recommend parole. The Program requires that participants admit
their guilt to the crimes underlying their convictions.
On September 2, 2016, Kollock filed a grievance with the
SCI-Houtzdale facility grievance coordinator, claiming that, as a wrongfully
convicted sex offender, the admission of guilt requirement of the Program goes
against his “sincerely held Episcopal Beliefs [and] the Precepts of [his] faith” by
forcing him to bear false witness upon himself. (Official Inmate Grievance, attached
to Petition for Review (PFR).) Kollock averred that this requirement is in violation
of the First Amendment of the United States Constitution, Article I, Section 3 of the
Pennsylvania Constitution,2 and the Religious Land Use and Institutionalized
1
DOC officers and employees to the action are John E. Wetzel, Secretary of DOC; Shirley
Moore-Smeal, Executive Deputy Secretary of DOC; and Theron R. Perez, Esq., Chief Counsel of
DOC. PBPP officers and employees to the action are John E. Tuttle, Acting Chair of PBPP; Alan
Robinson, Chief Counsel of PBPP; and Meghan M. Dade, Executive Director of Sexual Offender
Assessment Board of PBPP.
2
Article I, Section 3 of the Pennsylvania Constitution provides:
All men have a natural and indefeasible right to worship Almighty God according
to the dictates of their own consciences; no man can of right be compelled to attend,
erect or support any place of worship, or to maintain any ministry against his
consent; no human authority can, in any case whatsoever, control or interfere with
the rights of conscience, and no preference shall ever be given by law to any
religious establishments or modes of worship.
2
Persons Act (RLUIPA).3 (Id.) He requested that DOC remove the admission of
guilt requirement from his requirements for the Program. (Id.)
On September 28, 2016, DOC denied Kollock’s grievance. (Initial
Review Response, attached to PFR.) The denial provided, in pertinent part:
[Y]our grievance is denied as there is no evidence of
policy and/or procedural violations related to this matter.
Per Act 98 of 2000, you will be required to comply with
DOC programming recommendations related to your
controlling offense(s) prior to being eligible for parole.
Specifically, you will be required to complete a sex
offender program evaluation and any additional
recommended programming as outlined on your DC-43
(correctional plan). To date you have refused to comply
with this recommendation.
(Id.)
Kollock appealed this decision to the facility manager, raising the same
arguments as in his initial grievance. (Inmate Appeal to Facility Manager Grievance
at 1, attached to PFR.) DOC also denied this appeal, as DOC’s first response
“sufficiently answered” Kollock’s averments from his original grievance. (Facility
Manager’s Appeal Response, attached to PFR.) Further, the response noted that
Kollock’s claims that the requirement violates his religious beliefs held no relevance
to the appeal. (Id.)
Kollock submitted a final appeal to this decision to DOC’s Chief
Grievance Officer, again raising no new issues and merely restating his original
complaint. (Inmate Appeal to Final Review Grievance at 1, attached to PFR.) DOC
again denied Kollock’s appeal, as “[n]o evidence of neglect or deliberate
indifference was found.” (Final Appeal Decision, attached to PFR.) Kollock then
3
42 U.S.C. § 2000cc-1.
3
filed this action in our original jurisdiction, seeking injunctive relief in the form of
an exemption from the Program’s admission of guilt requirement.
In his petition for review, Kollock avers that PBPP summarily denies
parole to any inmate convicted of a sexual offense who has not completed the
Program. Kollock argues that DOC and PBPP are violating his constitutional rights
by forcing him to admit that he committed crimes for which he claims he is innocent.
As he did in his grievance, Kollock contends that this requirement is in violation of
(1) the Establishment and Free Exercise clauses of the First Amendment of the
United States Constitution, (2) Article I, Section 3 of the Pennsylvania Constitution,
(3) RLUIPA, and (4) the Pennsylvania Religious Freedom Protection Act4 (RFPA).
In response, Beemer and Agency Respondents filed preliminary objections to this
action, challenging the legal sufficiency of his claims. Specifically, Beemer avers
that Kollock has made no specific averments against Beemer, and Agency
Respondents challenge this Court’s jurisdiction over this action and additionally aver
that Kollock has failed to state a claim under which relief can be granted.
In ruling on preliminary objections, we accept as true all well-pleaded
material allegations in the petition for review and any reasonable inferences that we
may draw from the averments. Meier v. Maleski, 648 A.2d 595, 600 (Pa. Cmwlth.
1994). The Court, however, is not bound by legal conclusions, unwarranted
inferences from facts, argumentative allegations, or expressions of opinion
encompassed in the petition for review. Id. We may sustain preliminary objections
only when the law makes clear that the petitioner cannot succeed on the claim, and
we must resolve any doubt in favor of the petitioner. Id. “We review preliminary
objections in the nature of a demurrer under the above guidelines and may sustain a
4
Act of December 9, 2002, P.L. 1701, 71 P.S. §§ 2401-2407.
4
demurrer only when a petitioner has failed to state a claim for which relief may be
granted.” Armstrong Cnty. Mem’l Hosp. v. Dep’t of Pub. Welfare, 67 A.3d 160, 170
(Pa. Cmwlth. 2013).
We will first address Beemer’s preliminary objections. Beemer objects
on the basis of legal insufficiency of the pleading (demurrer), see Pa. R.C.P. No.
1028(a)(4), and insufficient specificity in a pleading, see Pa. R.C.P. No. 1028(a)(3).
Specifically, Beemer’s objection stems from the fact that Kollock’s petition for
review contains no legal or factual averments against Beemer.
Pennsylvania is a fact pleading state. See Pa. R.C.P. No. 1019.
Pleadings must achieve the purpose of informing the court and adverse party of the
matters in issue. Dep’t of Transp. v. Shipley Humble Oil Co., 370 A.2d 438, 439
(Pa. 1977). Rule 1019(a) is satisfied if “allegations in a pleading (1) contain
averments of all facts the plaintiff will eventually have to prove in order to recover,
and (2) they are sufficiently specific so as to enable the party served to prepare a
defense thereto.” Id. “Legal conclusions and general allegations of wrongdoing,
without the requisite specific factual averments or support, fail to meet the pleading
standard.” McCulligan v. Pa. State Police, 123 A.3d 1136, 1141 (Pa. Cmwlth.
2015), aff’d, 135 A.3d 580 (Pa. 2016).
In the instant case, there are no specific factual averments directed
toward Beemer or any other member of the Attorney General’s office. Accordingly,
we sustain Beemer’s preliminary objections and turn our analysis to Agency
Respondents’ preliminary objections.
Agency Respondents object on the basis of improper service, see Pa.
R.C.P. No. 1028(a)(2), lack of jurisdiction, see Pa. R.C.P. No. 1028(a)(1), and
demurrer challenging the legal sufficiency of the complaint, see Pa. R.C.P.
5
No. 1028(a)(4). Starting first with Agency Respondents’ objection to service, we
note that Pa. R.A.P. 1514(c) “governs the service of original jurisdiction petitions
for review on government units.” Howard v. Cmwlth., 957 A.2d 332, 335 (Pa.
Cmwlth. 2008). Rule 1514(c) provides: “A copy of the petition for review shall be
served by the petitioner in person or by certified mail on the government unit.” Pa.
R.A.P. 1514(c). Failure to effect service pursuant to Rule 1514(c), however, is an
amendable defect. Nat’l Solid Wastes Mgmt. Assoc. v. Casey, 580 A.2d 893, 897
(Pa. Cmwlth. 1990).
Here, Kollock filed his petition for review with this Court on
January 17, 2017. Kollock’s petition, however, contained no certificate of service
or proof thereof. Agency Respondents filed their preliminary objections for
improper service on March 8, 2017. On March 15, 2017, Kollock filed with this
Court certified mail receipts indicating that Kollock properly served Agency
Respondents on January 17, 2017. As failure to effect service in conformity with
Pa. R.A.P. 1514(c) is an amendable defect, we accept Kollock’s later filing as
curative. The objection as to service is overruled.
We next move on to Agency Respondents’ preliminary objection for
lack of jurisdiction. Agency Respondents aver that Kollock is seeking review of an
inmate grievance by attempting to convert an appeal to an original jurisdiction
matter. In support of their position, Agency Respondents cite to the Pennsylvania
Supreme Court’s decision Bronson v. Central Office Review Committee,
721 A.2d 357 (Pa. 1998). In Bronson, our Supreme Court considered the question
of whether this Court has jurisdiction over inmate appeals from decisions of DOC’s
Central Office Review Committee (CORC)5 under either our original or our
5
CORC has now been designated as the Chief Grievance Officer.
6
appellate jurisdiction. Bronson involved an inmate who filed two grievances with
CORC after the seizure of certain articles of clothing. CORC denied his grievances.
The inmate then filed a petition for review with this Court, seeking compensation
for the confiscated property. We construed the inmate’s petition for review as an
attempt to appeal CORC’s grievance denial and docketed the case under our
appellate jurisdiction. See 42 Pa. C.S. § 763. This Court dismissed the appeal,
relying on Ricketts v. Central Office Review Committee of the Department of
Corrections, 557 A.2d 1180 (Pa. Cmwlth.), appeal denied, 574 A.2d 75 (Pa. 1989),
determining that we did not have jurisdiction over inmate grievance appeals, as
CORC is not a government agency whose final decisions are appealable. See id. at
358. Our Supreme Court granted allocatur.
The Supreme Court held that this Court did not have appellate
jurisdiction of the matter and stated that “[e]ven if Appellant had invoked the court’s
original jurisdiction by attempting to color the confiscation of his clothing as a
violation of his protected constitutional property rights, his claim would fail.”
Bronson, 721 A.2d at 359. The Supreme Court added that “[u]nless ‘an inmate can
identify a personal or property interest . . . not limited by [DOC] regulations . . .
which has been affected by a final decision of [DOC]’ the decision is not an
adjudication subject to the court’s review.” Id. (citation omitted). In so holding, our
Supreme Court explicitly rejected the rationale of our earlier holding in Kisner v.
Department of Corrections, 683 A.2d 353 (Pa. Cmwlth.), appeal denied, 701 A.2d
579 (Pa. 1996). The Supreme Court in Bronson expressly held that this Court lacks
original jurisdiction “in a case not involving constitutional rights not limited by
[DOC].” Id. at 359.
7
Here, although Kollock references the preceding grievance process in
his petition for review, the gist of his action is that the admission of guilt requirement
of the Program violates his constitutional rights. As Kollock has alleged a violation
of a protected constitutional right, he may bring this action in this Court’s original
jurisdiction. See Stodghill v. Pa. Dep’t of Corr., 150 A.3d 547, 556 (Pa. Cmwlth.
2016) (Leavitt, P.J., concurring). Accordingly, Agency Respondents’ objection to
this Court’s jurisdiction is overruled.
We now address Agency Respondents’ preliminary objections in the
nature of a demurrer, starting with Kollock’s free speech and religious claims under
both the United States and Pennsylvania Constitutions.6 A demurrer may only be
sustained when, on the face of the complaint, the law will not permit recovery. Stone
& Edwards Ins. Agency, Inc. v. Dep’t of Ins., 616 A.2d 1060, 1063 (Pa. Cmwlth.
1992), aff’d, 648 A.2d 304 (Pa. 1994). All well-pled allegations must be accepted
as true. Id. If there is any doubt “as to whether the preliminary objection should be
sustained, that doubt should be resolved by a refusal to sustain it.” Dep’t of Pub.
Welfare v. Joyce, 563 A.2d 590, 591 (Pa. Cmwlth. 1989).
Agency Respondents argue that Kollock’s petition for review fails to
state a claim for which relief can be granted because DOC has a legitimate
penological interest in requiring that sex offenders participate in the Program and
6
Kollock’s argument is that the admission of guilt requirement of the Program violates
Article I, Section 3 of the Pennsylvania Constitution in addition to the Free Exercise and
Establishment clauses of the First Amendment of the United States Constitution. Because our
state constitution is not broader than its federal counterpart, we need only consider federal
precedent to resolve the matter. Meggett v. Dep’t of Corr., 892 A.2d 872, 879 (Pa. Cmwlth. 2006)
(“[W]e are not aware of any precedent that would have the Pennsylvania Constitution give broader
protection to [religious freedom] than does the First Amendment. . . . [T]herefore, we will follow
federal precedent in considering Meggett’s freedom of religion claim under the Constitutions of
both Pennsylvania and the United States.”).
8
take responsibility for their crimes. In retort, Kollock argues that forcing him to
admit guilt as part of the Program is akin to the government placing restrictions on
his exercise of religious freedom in addition to being a content-based restriction on
speech, and that such restrictions are in violation of his constitutional rights. We
disagree.
The First Amendment of the United States Constitution provides that
“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 Government for a
redress of grievances.” U.S. CONST. amend. I. It is, however, well settled that
“lawful incarceration brings about the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the considerations underlying our penal
system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). An inmate “retains those
First Amendment rights that are not inconsistent with his status as a prisoner or with
the legitimate penological objectives of the corrections system.” Id.
This Court has recognized four factors established by the United States
Supreme Court for determining when prison regulations impermissibly restrict
constitutional rights. Courts must evaluate:
(1) whether there is a “valid, rational connection” between
the prison regulation and the legitimate, neutral
government interest advanced to justify the regulation; (2)
whether the inmate has alternative means of exercising the
right at issue; (3) the burden that the accommodation
would impose on prison resources; and (4) whether any
ready alternatives to the regulation exist that would fully
accommodate the inmate’s rights at a de minimis cost to
valid penological objectives.
9
Mobley v. Coleman, 65 A.3d 1048, 1052 n. 5 (Pa. Cmwlth. 2013) (citing Turner v.
Safley, 482 U.S. 78, 89-90 (1987)). The prisoner bears the burden of showing that
the regulations are unconstitutional. Id. at 1052.
Here, Kollock does not advance any argument that would assist our
analysis of the above-mentioned factors. He merely asserts that the Program’s
requirement is not reasonably related to legitimate penological interests. The United
States Supreme Court previously considered this contention and opined:
When convicted sex offenders reenter society, they
are much more likely than any other type of offender to be
rearrested for a new rape or sexual assault. States thus
have a vital interest in rehabilitating convicted sex
offenders.
Therapists and correctional officers widely agree
that clinical rehabilitative programs can enable sex
offenders to manage their impulses and in this way reduce
recidivism. An important component of those
rehabilitation programs requires participants to confront
their past and accept responsibility for their misconduct.
“Denial is generally regarded as a main impediment to
successful therapy,” and “[t]herapists depend on
offenders’ truthful description of events leading to past
offenses in order to determine which behaviors need to be
targeted in therapy.” Research indicates that offenders
who deny all allegations of sexual abuse are three times
more likely to fail in treatment than those who admit even
partial complicity.
McKune v. Lile, 536 U.S. 24, 33 (2002) (internal citations omitted) (alteration in
original). The Supreme Court expressly held in McKune that the admission of guilt
requirement is reasonably related to legitimate penological interests, and Kollock’s
lone contention challenging this relation failed to aver sufficient facts to overcome
this existing precedent. Accordingly, we sustain Agency Respondents’ preliminary
10
objections as they relate to the First Amendment of the United States and
Pennsylvania Constitutions.
We now turn to Agency Respondents’ demurrer regarding Kollock’s
claim that the admission of guilt requirement violates RLUIPA. In order to assert a
claim for a violation of RLUIPA, an inmate must allege that he is (i) engaged in a
religious exercise (ii) grounded in a sincerely held religious belief (iii) that is
substantially burdened by a prison policy. 42 U.S.C. § 2000cc-1(a). Once an inmate
makes this prima facie showing, the burden shifts to the government to show that its
refusal to accommodate the prisoner’s request for a religious accommodation is “in
furtherance of a compelling government interest” and is “the least restrictive means
of furthering that compelling governmental interest.” Id. A governmental action or
regulation creates a substantial burden on religious exercise if it truly pressures the
offender to significantly modify his religious behavior and greatly violates his
religious beliefs. Adkins v. Kaspar, 393 F.3d 559, 569-70 n. 37 (5th Cir. 2004), cert.
denied, 545 U.S. 1104 (2005). Specifically:
[T]he effect of a government action or regulation is
significant when it either (1) influences the adherent to act
in a way that violates his religious beliefs, or (2) forces the
adherent to choose between, on one hand, enjoying some
generally available, nontrivial benefit, and, on the other
hand, following his religious beliefs. On the opposite end
of the spectrum, however, government action or regulation
does not rise to the level of a substantial burden on
religious exercise if it merely prevents the adherent from
enjoying some benefit that is not otherwise generally
available or acting in a way that is not otherwise generally
allowed.
Id. at 570.
The only substantial burden Kollock claims is that Agency
Respondents are using the Program as a condition for the benefit of parole, thus
11
forcing Kollock to choose between receiving this benefit or adhering to the tenets of
his religion by not “bearing false witness” upon himself. A fair reading of Kollock’s
pleading reveals that Kollock does not aver that DOC forced Kollock to participate
in the Program, nor that parole is generally available to other inmates. The
admission of guilt requirement, as applied to Kollock, merely prevents Kollock from
completing the Program and receiving a recommendation for parole from DOC. A
recommendation for parole is not a benefit generally available to other inmates,
regardless of their religious beliefs. Accordingly, we conclude that Kollock’s
pleadings have not established the necessary substantial burden to establish a prima
facie case of a RLUIPA violation, and we sustain Agency Respondents’ preliminary
objections on this matter.
We last turn to Agency Respondents’ preliminary objections to
Kollock’s final argument, that the admission of guilt requirement violates the RFPA.
The General Assembly enacted the RFPA to enlarge constitutional protections
against government intrusion on individual religious beliefs. See Brown v. City of
Pittsburgh, 586 F.3d 263, 285 (3d Cir. 2009). Section 4 of the RFPA,
71 P.S. § 2404, provides that “an agency shall not substantially burden a person’s
free exercise of religion.” An agency “substantially burdens” the free exercise of
religion when it does any of the following:
(1) Significantly constrains or inhibits conduct or
expression mandated by a person’s sincerely held religious
beliefs.
(2) Significantly curtails a person’s ability to express
adherence to the person’s religious faith.
(3) Denies a person a reasonable opportunity to engage
in activities which are fundamental to the person’s
religion.
12
(4) Compels conduct or expression which violates a
specific tenet of a person’s religious faith.
Section 3 of the RFPA, 71 P.S. § 2403 (emphasis added). With regard to inmate
claims, however, Section 5(g) of the RFPA, 71 P.S. § 2405(g), provides:
An agency shall be deemed not to have violated the
provisions of this act if a rule, policy, action, omission or
regulation of a correctional facility or its correctional
employees is reasonably related to legitimate penological
interests, including the deterrence of crime, the prudent
use of institutional resources, the rehabilitation of
prisoners or institutional security.
(Emphasis added.)
Here, just as in his RLUIPA claim, Kollock’s challenge fails. The
Program’s admission of guilt requirement is reasonably related to DOC’s legitimate
penological interest of prisoner rehabilitation. McKune, 536 U.S. at 34. Thus, per
Section 5(g) of the RFPA, the admission of guilt requirement does not violate
Kollock’s rights under the RFPA. Because the admission of guilt requirement does
not violate the RFPA and Kollock has failed to allege any other burden placed on
the exercise of his religion, he has failed to plead a violation of the RFPA as to
survive Agency Respondents’ demurrer.
Accordingly, in addition to sustaining Beemer’s objections, we sustain
Agency Respondents’ preliminary objections and dismiss Kollock’s petition for
review.
P. KEVIN BROBSON, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jason P. Kollock, Lead Petitioner :
and All Others Similarly Situated, :
Petitioners :
:
v. : No. 24 M.D. 2017
:
Bruce R. Beemer, Attorney General :
of the Commonwealth of Pennsylvania :
John E. Wetzel, Secretary, PA Dept. :
of Corrections, Shirley Moore-Smeal, :
Exec. Deputy Sec. PA-DOC Steven :
Glunt, Deputy Sec. W.D., PA-DOC :
Theron R. Perez, Esq., Chief Counsel, :
PA-DOC John E. Tuttle, Acting Chair :
of the Board, PBPP Alan Robinson, :
Chief Counsel, PBPP Meghan M. Dade, :
Exec. Dir. S.O.A.B., PBPP, :
Respondents :
ORDER
AND NOW, this 30th day of November, 2017, we SUSTAIN
Respondents’ preliminary objections and DISMISS Kollock’s petition for review.
P. KEVIN BROBSON, Judge