S. Freemore v. DOC ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shawn Freemore, :
Petitioner :
:
v. : No. 273 M.D. 2020
: Submitted: February 12, 2021
Department of Corrections, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: May 10, 2021
Before this Court are the preliminary objections, in the nature of a
demurrer, of the Department of Corrections (DOC) in regard to a Petition for Review
filed pro se with this Court by Shawn Freemore (Freemore), an inmate presently
incarcerated at State Correctional Institution (SCI) at Houtzdale. Freemore
challenges DOC’s ability to collect court-ordered costs from a gift made to his
inmate account.
I. Background and Procedural History
On February 1, 2020, Freemore filed an official inmate grievance,
alleging that DOC erroneously deducted 25%, i.e., $37.50, from a gift of $150.00,
deposited to his inmate account by his family on January 21, 2020. Petition for
Review, Exhibit A. In his grievance, Freemore argued that “[d]eductions are only
to be taken from monies earned, such as work in the institution or money from an
official profession, not gifts from [f]amily or [f]riends.” Id.
On February 11, 2020, DOC issued its Initial Review Response denying
Freemore’s grievance, stating that, “[i]n accordance with DOC policy DC-ADM
005, the definition of ‘income’ is ‘all funds credited to an inmate’s account
regardless of the source.’ Therefore, deductions from personal gifts are in
accordance with policy.” Petition for Review, Exhibit B.
Freemore also filed an Appeal to Facility Manager, which was received
by the Superintendent’s Office at SCI-Houtzdale on February 20, 2020. Freemore
disputed the Initial Review Response and contended: “Since gifts are not eligible
income under the statuets [sic], deductions from my personal gifts must cease and
my relief granted.” Petition for Review, Exhibit C.
On February 20, 2020, DOC issued the Facility Manager’s Appeal
Response stating that Freemore “failed to provide anything in the appeal that would
refute the response provided[,] and the personal opinion you provide concerning
gifts not being eligible under income statutes have [sic] no merit.” Petition for
Review, Exhibit D. In addition, DOC noted:
The Investigating Officer has appropriately addressed all of your
concerns, there is no indication of any violation of policy, and all
collections were done accordingly. Therefore, the original response is
upheld and any such relief is denied. In addition, a frivolous
designation has been added as your grievance lacks any arguable basis
in law, fact, and/or policy.
Petition for Review, Exhibit D.
On February 23, 2020, Freemore filed an Appeal to Final Review,
stating:
The Facility Manager’s Response shed no light on the matters
and [did not] answer anything in the appeal.
2
Since the DOC’s definition of “income” is overly broad, and
does not comport with any existing statute, it must be struck down. The
inclusion of gifts is incorrect[,] and the deduction therefrom must be
stopped. My initial grievance should be upheld and the relief requested
granted.
Petition for Review, Exhibit D.
On March 4, 2020, DOC issued its Final Appeal Decision, stating:
A review of the record found that DOC policy DC-ADM 005
[Collection of Inmate Debts] states that “income” shall mean all funds
credited to an inmate’s account regardless of source. The only
exceptions are: refunds of commissary purchases, refunds of purchases
initiated through the facility, money sent to the inmate for payment of
a private viewing/deathbed visit, Social Security Disability payments,
and Veterans Administration benefits.[] Therefore, deductions can be
made from “gifts,” regardless of the source. You fail to provide any
evidence to substantiate your claims. Your grievance and requested
relief are denied.
Petition for Review, Exhibit F.
Freemore filed a Petition for Review with this Court dated April 2,
2020. On August 29, 2020, Freemore filed a Motion for Summary Relief, which
was received by this Court on September 4, 2020, asserting that DOC had “chosen
to not answer or file preliminary objections, despite having over four months to
respond.” Motion for Summary Relief, 8/29/20.
On September 11, 2020, this Court issued an Order as follows:
Now, September 11, 2020, upon consideration of [Freemore’s] Motion
for Summary [Relief], requesting judgment in his favor based on
[DOC’s] failure to respond to his [P]etition for [R]eview, and it
appearing that service of the [P]etition for [R]eview has not been made
on [DOC] as required by Pa. R.A.P. 1514(c),[1] the motion is denied.
1
Pa.R.A.P. 1514(c) states: “Service.--A copy of the petition for review shall be served by
the petitioner in person or by certified mail on both the government unit that made the
determination sought to be reviewed and the Attorney General of Pennsylvania.”
3
[Freemore] is directed to serve his [P]etition for [R]eview on [DOC]
and the Attorney General in person or by certified mail as required by
Pa. R.A.P. 1514(c) and file with this court a certificate of service of
same within 14 days of the entry of this order or this matter will be
dismissed as a matter of course.
Commonwealth Court Order, 9/11/20.
On September 24, 2020, this Court issued an Order directing DOC to
file an answer or otherwise plead within 30 days. Freemore filed a Motion to Clarify,
which was received by this Court on October 16, 2020, contending that our
September 24, 2020 Order was overbroad and requesting that we specify that by
“file an answer or otherwise plead,” we meant DOC was only permitted to reply to
his Motion for Summary Relief and that any answer or preliminary objections to his
original Petition for Review were time-barred. Motion to Clarify, 10/16/20. Also,
on October 16, 2020, DOC filed preliminary objections to Freemore’s Petition for
Review. In an Order dated October 20, 2020, this Court denied Freemore’s Motion
to Clarify, and on October 23, 2020, we received Freemore’s response to DOC’s
preliminary objections. Both parties submitted briefs to this Court. DOC submitted
its brief on December 3, 2020, and Freemore submitted his brief on January 4, 2021.2
2
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 (Pa. Cmwlth. 1994). However, the Court 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 his claim, and we must resolve any
doubt in favor of the petitioner. Id. When considering preliminary objections in the nature of a
demurrer, we may sustain a demurrer only when a petitioner has failed to state a claim for which
relief may be granted. Clark v. Beard, 918 A.2d 155 (Pa. Cmwlth. 2007). Moreover, we have
held that “a demurrer cannot aver the existence of facts not apparent from the face of the challenged
pleading.” Martin v. Dep’t of Transp., 556 A.2d 969, 971 (Pa. Cmwlth. 1989).
4
II. Arguments
A. Freemore’s Arguments
Freemore argues that this Court may not review DOC’s preliminary
objections because they are time-barred by Pa.R.A.P. 1516(b)3 and Pa.R.C.P. No.
1025,4 which “place a time limit for filing any pleading or response to within 30 and
20 days, respectively, after service.” Freemore’s Br. at 6. Freemore asserts that he
properly served his Petition for Review on DOC on April 2, 2020, but that DOC did
not respond or file any pleading until October 16, 2020, and that DOC was untruthful
when it stated it was only served on September 24, 2020. Thus, Freemore contends
3
Pa.R.A.P. 1516(b) states, in pertinent part:
Original jurisdiction petitions for review.--Where an action is commenced
by filing a petition for review addressed to the appellate court’s original
jurisdiction, the pleadings are limited to the petition for review, an answer thereto,
a reply if the answer contains new matter or a counterclaim, a counter-reply if the
reply to a counterclaim contains new matter, preliminary objections, and answers
thereto . . . . Every pleading filed after an original jurisdiction petition for review
shall be filed within 30 days after service of the preceding pleading, but no pleading
need be filed unless the preceding pleading is endorsed with a notice to plead.
(Emphasis added.)
4
It appears that Freemore meant this to be a reference to Pa.R.C.P. No. 1026(a), which
states:
Rule 1026. Time for Filing. Notice to Plead.
(a) Except as provided by Rule 1042.4 or by subdivision (b) of this rule,
every pleading subsequent to the complaint shall be filed within twenty days after
service of the preceding pleading, but no pleading need be filed unless the
preceding pleading contains a notice to defend or is endorsed with a notice to plead.
(Emphasis added.)
5
that DOC’s preliminary objections are untimely and “this [C]ourt lacks jurisdiction
to entertain or review them.” Freemore’s Br. at 6.
Freemore adds that, if this Court proceeds to review DOC’s preliminary
objections, the preliminary objections “fail for other reasons as well.” Id. Freemore
argues that DOC’s definition of income as “‘all funds credited to an inmate[’]s
account regardless of source,’” violates 42 Pa.C.S. §8127(a)(5)5 “which states that
only ‘wages, salaries, and commissions’ are available for deductions by court order.”
Freemore’s Br. at 7. Citing Fisher v. Commonwealth, 926 A.2d 992 (Pa. Cmwlth.
2007), Freemore notes that this Court has previously determined that, rather than its
own definition of income, DOC should rely on the definition of income used in 23
Pa.C.S. §4302, which, he says “exempts gifts.” Freemore’s Br. at 8. Freemore states
that DOC is essentially his employer, and 42 Pa.C.S. §8127(a)(5) only provides for
deductions from “wages, salaries, and commissions.” Freemore’s Br. at 9. He adds
that gifts do not fit into that statutory definition. Id. (citing 42 Pa.C.S. §8127(a)(5)).
Freemore contends:
This Court should reject [] DOC’s interpretation of the statute and DC-
ADM’s definition of “income” as allowing them [sic] overly excessive
power. A statement of policy is a governmental agency’s
interpretation, which a court may accept or reject depending on how
accurately the agency’s interpretation affects the meaning of the statute.
5
42 Pa.C.S. §8127(a) provides, in pertinent part:
(a) General rule and exceptions.--The wages, salaries and commissions
of individuals shall while in the hands of the employer be exempt from any
attachment, execution or other process except upon an action or proceeding:
....
(5) For restitution to crime victims, costs, fines or bail judgments pursuant
to an order entered by a court in a criminal proceeding.
6
Id. (citing Chimenti v. Dep’t of Corr., 720 A.2d 205, 210 (Pa. Cmwlth. 1998))
(quoting Cent. Dauphin Sch. Dist. v. Dep’t of Educ., 608 A.2d 576, 581 (Pa. Cmwlth.
1992)).
Freemore asserts that, in addition to DOC’s definition of income being
overbroad, it is antithetical to the public interest to allow a deduction from a gift to
an inmate’s account because it results in “civilians” paying the inmate’s costs, rather
than the inmate, himself, paying same. Freemore contends that this runs counter to
the purpose of the law. Freemore’s Br. at 8. In this same regard, Freemore argues
that “[i]nmate debt should only be deducted from wages, salaries, and commissions
earned through work,” which, Freemore maintains, are “the only ones authorized by
statute.” Freemore’s Br. at 9.
Freemore contends that DOC’s action in the present matter violated his
Fourth Amendment protection against unreasonable search and seizure as
enunciated in the United States Constitution6 and resulted in due process violations
under the Fourteenth Amendment of the United States Constitution7 and Article I,
Section 1 of the Pennsylvania Constitution8 because the deductions taken by DOC
were automatic and “unchallengable” prior to their occurrence. Petition for Review,
4/2/20, at 4.
6
U.S. Const. amend. IV.
7
U.S. Const. amend XIV.
8
Pa. Const. art. I, §1. (“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.”).
7
Freemore argues that DOC failed to answer the only pleading it was
“legally permitted to answer, which [was] the Motion for Summary [Relief].”
Freemore’s Br. at 10. Freemore adds that this means the Motion for Summary Relief
was uncontested, and since Pa.R.C.P. No. 1035.39 applies to both the Motion for
Summary Relief and the Petition for Review, this necessitates his Motion for
Summary Relief should be granted. Freemore’s Br. at 10.
B. DOC’s Arguments
DOC notes, initially, that 42 Pa.C.S. §9728(b)(5)10 states: “‘The [DOC]
shall make monetary deductions of at least 25% of deposits made to inmate wages
and personal accounts for the purpose of collecting restitution, costs . . . .’” DOC’s
Br. at 7 (emphasis added to quote by DOC). Citing Boyd v. Department of
Corrections, 831 A.2d 779 (Pa. Cmwlth. 2003), DOC contends it is well established
9
Rule 1035.3. Response. Judgment for Failure to Respond.
(a) Except as provided in subdivision (e), the adverse party may not rest
upon the mere allegations or denials of the pleadings but must file a response within
thirty days after service of the motion identifying
(1) one or more issues of fact arising from evidence in the record
controverting the evidence cited in support of the motion or from a challenge to the
credibility of one or more witnesses testifying in support of the motion, or
(2) evidence in the record establishing the facts essential to the cause of
action or defense which the motion cites as not having been produced.
(b) An adverse party may supplement the record or set forth the reasons
why the party cannot present evidence essential to justify opposition to the motion
and any action proposed to be taken by the party to present such evidence.
(c) The court may rule upon the motion for judgment or permit affidavits
to be obtained, depositions to be taken or other discovery to be had or make such
other order as is just.
(d) Summary judgment may be entered against a party who does not
respond.
Known as “Act 84,” i.e., Act of June 18, 1998, P.L. 640, No. 84, as amended, 42 Pa.C.S.
10
§9728 (Collection of restitution, reparation, fees, costs, fines and penalties).
8
that DOC is authorized “to make monetary deductions from an inmate’s account to
pay court ordered fines, costs, and restitution.” DOC’s Br. at 7.
DOC argues that 42 Pa.C.S. §8127 does not apply to gifts, despite
Freemore’s contention to the contrary, stating that “[t]his section only applies to
‘wages, salaries, and commissions . . . while still in the hands of an employer.’”
DOC’s Br. at 9 (quoting Bundy v. Wetzel, 184 A.3d 551, 556 (Pa. 2018) (citing 42
Pa.C.S. §8127(a))). Referencing 18 Pa.C.S. §5123(b),11 DOC notes that “when a
person gives money to an inmate, the funds are credited to the prisoner’s account
and expended in accordance with the prison’s rules and regulations.” DOC’s Br. at
9.
DOC adds that Freemore failed to present any facts to support his claim
that the deductions from his account were made in violation of the Fourth
Amendment to the United States Constitution and that the “courts have concluded
that the Fourth Amendment does not apply to seizures from inmate accounts.”
DOC’s Br. at 9 (referencing Taylor v. Knapp, 871 F.2d 803, 806 (9th Cir. 1989),
Jackson v. SCI-Camp Hill (M.D. Pa. Sept. 11, 2012), 2012 WL 3990888, at *5 (an
inmate has no Fourth Amendment rights in his prison financial account), aff’d,
Jackson v. SCI Camp Hill, 530 F. App’x 150 (3d Cir. 2013)). Further, DOC
11
18 Pa.C.S. §5123(b) states, in pertinent part:
(b) Money to inmates prohibited.--A person commits a misdemeanor of
the third degree if he gives or furnishes money to any inmate confined in a State or
county correctional institution, provided notice of this prohibition is adequately
posted at the institution. A person may, however, deposit money with the
superintendent, warden, or other authorized individual in charge of a State or
county correctional institution for the benefit and use of an inmate confined
therein, which shall be credited to the inmate’s account and expended in
accordance with the rules and regulations of the institution . . . .
(Emphasis added).
9
reinforces the point that Act 84 “dictates that . . . DOC is to make monetary
deductions from an inmate’s account to pay court ordered fines, costs and
restitution.” DOC’s Br. at 7 (citing Boyd, 831 A.2d 779). Additionally, DOC
contends that “Act 84 does not require prior court authorization as a threshold
condition before funds may be deducted from an inmate’s account.” DOC’s Br. at
8 (referencing George v. Beard, 824 A.2d 393 (Pa. Cmwlth. 2003)). DOC adds that
our Supreme Court “has rejected the argument that before the DOC may commence
Act 84 deductions, an inmate is entitled to a hearing regarding his ability to pay
under 42 Pa.C.S. §9730(b).” DOC’s Br. at 8. Citing Buck v. Beard, 879 A.2d 157,
160-61 (Pa. 2005), DOC states “[t]he sentencing hearing provides the inmate with
the required pre[]deprivation due process regarding his ability to pay.” DOC’s Br.
at 8.
Further, DOC, referencing Bundy, 184 A.3d at 556, states that once an
inmate receives a monetary gift, it belongs to him, not the donor, and thus, it is
“subject to Act 84 deductions.”12 DOC’s Br. at 10. Accordingly, DOC asserts that
“[t]he funds in [Freemore’s] inmate account, which include gifts, are properly being
deducted from his inmate account to satisfy his court costs. Thus, [Freemore] has
failed to state any grounds upon which relief may be granted regarding these
deductions.” DOC’s Br. at 11. DOC requests that this Court sustain its preliminary
objections and dismiss Freemore’s Petition for Review.
III. Discussion
At the outset, we note that Freemore’s arguments fail at all levels. His
case for a Motion for Summary Relief is based on the incorrect supposition that DOC
did not timely respond to his Petition for Review. However, this Court determined
12
See 42 Pa.C.S. §9728.
10
that Freemore did not properly serve his Petition for Review on DOC and,
accordingly, denied his Motion for Summary Relief. Once Freemore properly
served his Petition for Review on DOC, DOC filed timely preliminary objections.
Accordingly, there was no remaining basis for Freemore’s Motion for Summary
Relief (which was denied), and, thus, no reason for DOC to respond to same.
As for DOC’s preliminary objections, DOC successfully established
that there was no basis for Freemore’s claims. Act 84 provides DOC with its
authority for making deductions from an inmate’s account. Freemore’s reliance on
42 Pa.C.S. §8127 is misplaced because that section applies to wages, salaries, and
commissions, not gifts. Gifts, and DOC’s authority to deduct funds from a monetary
gift made to an inmate’s account, are governed by Act 84.13
Further, there is no constitutional violation when DOC makes a
deduction from a gift made to an inmate’s account. Freemore’s sentencing hearing
was the pre[]deprivation due process to which he was entitled. Buck, 879 A.2d at
160-61. In addition, Freemore had a means to challenge DOC’s action, i.e., DOC’s
inmate grievance process, which he utilized. As this Court previously enunciated
in George, 42 Pa.C.S. §9728(b)(5) “authorizes DOC to make monetary deductions
13
42 Pa.C.S. §9728(b)(5) states, in pertinent part:
(b) Procedure.--
....
(5) Deductions shall be as follows:
(i) The [DOC] shall make monetary deductions of at least 25% of
deposits made to inmate wages and personal accounts for the purpose of
collecting restitution, costs imposed under section 9721(c.1), filing fees to be
collected under section 6602(c) (relating to prisoner filing fees) and any other
court-ordered obligation . . . .
(Emphasis added.)
11
from an inmate’s account to pay court ordered fines and costs and does not impose
prior court authorization as a threshold condition.” George, 824 A.2d at 396-97.
As we stated in Danysh v. Department of Corrections, 845 A.2d 260,
263 (Pa. Cmwlth. 2004):
The Legislature has not provided an exception for gifts placed in an
inmate’s personal account, and it does not require the Department to
account for the source of all funds in an inmate’s personal account
before making deductions. The personal account of an inmate may be
derived from various sources, including wages, gifts and government
benefits. The source of funds is of no moment.
(Emphasis added.) We added that
there is a legitimate penological interest in collecting on an inmate’s
debts incurred as a consequence of his criminal conviction. It
encourages rehabilitation by instilling a sense of financial
responsibility. The issue of an inmate’s ability to pay is reviewed by the
court at the time of sentencing.
Id. at 264.
This Court may sustain DOC’s preliminary objections and dismiss
Freemore’s case only in the instance where no doubt exists that the law will not
permit a recovery. This is such a case. Freemore has failed to state any grounds
upon which relief may be granted. Accordingly, we sustain DOC’s preliminary
objections and dismiss Freemore’s Petition for Review.
______________________________
J. ANDREW CROMPTON, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shawn Freemore, :
Petitioner :
:
v. : No. 273 M.D. 2020
:
Department of Corrections, :
Respondent :
ORDER
AND NOW, this 10th day of May 2021, the Preliminary Objections of
the Department of Corrections are SUSTAINED. The Petition for Review filed by
Shawn Freemore is DISMISSED.
______________________________
J. ANDREW CROMPTON, Judge