A. Murray v. PA DOC ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Albert Murray, :
Petitioner :
:
v. :
:
Pennsylvania Department of :
Corrections, et al., : No. 595 M.D. 2017
Respondents : Submitted: November 21, 2018
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: May 2, 2019
Before the Court are the Respondents’ Preliminary Objections to
[Amended] Petition for Review (Preliminary Objections) filed by the Department of
Corrections (Department), Hearing Examiner Wiggins,1 John Wetzel, and Joseph
Dupont (collectively, “Respondents”) in this Court on January 19, 2018 in response
to pro se petitioner Albert Murray’s (Murray) Amended Petition for Review (In the
Nature of a Complaint In Mandamus) (Amended Petition). Murray challenges the
process utilized in the prosecution of misconduct violations that he received
following a search of his cell. He also raises claims that Respondents violated the
1
Hearing Examiner Wiggins’ first name does not appear in the record beyond the initial
“S.”
Administrative Agency Law,2 denied his access to courts, and violated his rights
under the First Amendment of the United States Constitution by retaliating against
him for filing a grievance regarding treatment he received at his prison job.
Respondents argue that: Murray’s due process claim should be dismissed because
he has failed to plead facts that establish Respondents denied him any protected
property or liberty interest; the Administrative Agency Law does not apply to
misconduct hearings; Murray has not pleaded an actual injury regarding his access-
to-court claim; and Murray’s First Amendment claim should be dismissed because
he failed to plead facts that would disprove Respondents acted with a legitimate
penological interest in issuing the disputed misconduct violations. For the reasons
that follow, we sustain the Preliminary Objections.3
Murray is incarcerated at the State Correctional Institution at Somerset
(SCI-Somerset). On August 14, 2017, Murray filed a grievance with prison officials
related to his job in the prison laundry. See Official Inmate Grievance No. 691531,
dated August 14, 2017 (Grievance), attached to the Amended Petition as Exhibit B1-
B10.4 The Grievance alleged that Murray’s supervisor in the prison laundry had
unfairly demoted him to a less desirable laundry task based on the supervisor’s
personal animosity against Murray and the animosity of another inmate employee
against Murray. See Grievance at 1-2. Attached as exhibits to the Grievance,
2
2 Pa.C.S. §§ 501-508, 701-704.
3
Also before this Court to be decided with Respondents’ Preliminary Objections is
Murray’s motion for sanctions. See Motion for Sanctions filed August 7, 2018, and Orders dated
August 20, 2018 and October 30, 2018.
4
See Diess v. Pa. Dep’t of Transp., 935 A.2d 895, 903 (Pa. Cmwlth. 2007) (“Courts
reviewing preliminary objections may consider not only the facts pleaded in the complaint, but
also documents or exhibits attached to the complaint, and based upon the averments and
documentary support may address challenges to the legal sufficiency of the complaint.”).
2
Murray included nearly identical signed statements from eight (8) other inmates
Murray claimed supported his arguments against the prison laundry supervisor. See
Grievance, Exhibits B3-B10.
On August 16, 2017, prison officials at SCI-Somerset conducted an
investigative search of Murray’s cell. See Department Misconduct Report dated
August 16, 2017 (Misconduct Report), attached to the Amended Petition as Exhibit
E. During the search, officials found and confiscated a homemade iPod case, an
unpermitted extra-large laundry bag, a broken razor, and “27 papers pertaining to a
petition against the CI laundry staff,” all of which were considered contraband. Id.
Prison officials charged Murray with the following misconduct violations:
possession or circulation of a petition; possession of contraband; lying to an
employee; failure to report the presence of contraband; and possession of any item
not authorized for retention or receipt. Id.
A hearing on Murray’s misconduct charges occurred before a hearing
examiner, Respondent Wiggins, on August 18, 2017. See Department Disciplinary
Hearing Report dated August 18, 2017 (Disciplinary Hearing Report), attached to
the Amended Petition as Exhibit G. Murray pleaded guilty at the hearing to the
charges of possession of contraband and failure to report the presence of contraband
and not guilty to the charges of possession or circulation of a petition, lying to an
employee, and possession of any item not authorized for retention or receipt. Id.
The hearing examiner accepted Murray’s guilty plea to the possession of contraband
and failure to report the presence of contraband charges and found Murray guilty of
the charge of possession or circulation of a petition.5 The hearing examiner imposed
5
The hearing examiner credited the prison official’s version over Murray’s version and
found that Murray did, in fact, circulate a petition among other inmate laundry staff, who Murray
also had sign and date reproduced forms. See Disciplinary Hearing Report. Accordingly, the
3
the following sanctions: (1) 30 days of disciplinary time for the possession or
circulation of a petition conviction; (2) revocation of contraband for the possession
of contraband conviction; and (3) 15 days of concurrently served disciplinary time
and removal from his job in the prison laundry for the failure to report the presence
of contraband conviction. Id.
Murray appealed the misconduct decision to the prison Program
Review Committee (PRC), which affirmed the hearing examiner’s decision on
August 24, 2017. See PRC Decision and Rationale dated August 24, 2017, attached
to the Amended Petition as Exhibit J2. Murray further appealed to the prison
Superintendent, who also denied the appeal on September 19, 2017. See
Superintendent’s Decision dated September 19, 2017 (Superintendent’s Decision),
attached to the Amended Petition as Exhibit K2.6 Following the issuance of the
Superintendent’s Decision, Murray appealed the misconduct decision to the
Secretary’s Office of Inmate Grievances and Appeals, which also denied the appeal
on October 10, 2017. See Letter of Department Chief Hearing Examiner Joseph
Dupont dated October 10, 2017, attached to the Amended Petition as Exhibit A.
hearing examiner determined that “[a] preponderance of the evidence exist[ed] to support the
charge [of possession or circulation of a petition].” Id. The hearing examiner dismissed the
remaining charges of lying to an employee and possession of any item not authorized for retention
or receipt. Id.
6
In denying Murray’s appeal, the Superintendent’s Decision explained as follows:
I am in agreement with the Hearing Examiner and PRC’s findings.
I reviewed the documents in question with the Security Captain and
although you claim they are in reference to a grievance, based on the
content and nature of the documents found in your possession the
documents support the decision. Therefore, I agree with the
sanction and will not alter or dismiss the findings.
Superintendent’s Decision.
4
On December 12, 2017, Murray filed his Petition for Review with this
Court. In his Petition for Review, Murray claimed that his due process rights were
violated during the grievance process and further alleged that the Respondents
violated his right to access the courts, his right to free speech, and the Administrative
Agency Law. Murray requested that this Court issue a variety of declaratory
statements and various orders related to Murray’s allegations and interpretations of
the law regarding the confiscation of his property, the prison’s grievance procedures,
and the implementation thereof.
Respondents filed preliminary objections to the Petition for Review on
January 19, 2018. Murray filed the instant Amended Petition for Review on
February 6, 2018, which again requests this Court to issue declaratory statements
and orders related to Murray’s allegations and legal interpretations regarding the
confiscation of his property and the content and implementation of the prison’s
grievance procedures.7 Respondents filed the instant Preliminary Objections on
7
Specifically, Murray requests that this Court:
A. Issue a Declaratory Judgment stating that:
1. The Respondents[’] acts and omissions described herein
violated the [Murray’]s rights under the U.S. and Pa.
Constitutions, and Administrative Agency Law.
2. Respondent Wetzel[’]s regulation, 37 Pa. Code § 93.10,
and Administrative Directive DC-ADM 801 policy are
deficient and unconstitutional and violative of [Murray’]s
Due Process rights under the U.S. and Pa. Const.
3. Respondent Wetzel[’]s regulation, 37 Pa. Code § 93.10,
and Administrative Directive DC-ADM 801 policy is
inadequate and inconsistent with state law and in violation
of [Section 506 of the Administrative Code of 1929, Act of
April 9, 1929, P.L. 177, as amended,] 71 P.S. § 186.
5
4. Respondent Wiggins[’] actions in conducting the
[Murray’]s disciplinary hearing and Respondent
Dupont[’]s actions in sustaining the hearing violated
[Murray’]s rights under the Due Process Clause of the U.S.
and the Pa. Const., and Administrative Agency Law.
5. Respondents[’] actions in failing to provide a legally
adequate hearing and a[n] adequate administrative remedy
violated [Murray’]s rights under the Due Process Clause of
the U.S. and Pa. Const., and Administrative Agency Laws
[sic].
6. Respondents[’] actions in subjecting [Murray] to a[n]
“ALL OR NONE” plea process violated his rights under
the Due Process Clause of the U.S. and Pa. Const.
7. Respondent Wiggins[’] actions in depriving [] Murray
of 27 pages of written material and Respondent Dupont[’]s
actions in affirming the deprivation violated [Murray’]s
right to “Freedom of Speech” and “Access to Courts”
under the U.S. and Pa. Const., and [Murray’]s substantive
due process rights under the 14th Amendment of the U.S.
Const., and Respondents[’] own regulation 37 Pa. Code §
93.9, and Administrative Directive DC-ADM 804 § 1
(A.24).
8. The deficiencies in Respondent Wetzel[’]s regulation 37
Pa. Code § 93.10 and Administrative Directive DC-ADM
801 policy[] prejudiced [Murray] and produced an invalid
plea.
9. The Respondents arbitrarily and irrationally singled
[Murray] out as an individual for unfair treatment, and
unnecessary discipline without a rational basis for the
disparity in treatment, and that [Murray] was treated
differently from other prisoners in similar situations for no
just cause which denied [Murray] Equal Protection of the
Law in violation of his 14th Amendment rights.
10. The actions of the Respondents deprived [Murray] of a
protected property interest in the right to use, possess,
enjoy, and read the 27 pages of written material.
6
B. To issue the following injunctive relief:
1. An order prohibiting the Respondents from taking any
further action concerning [Murray’]s 27 pages of written
material.
2. An order compelling the Respondents to return
[Murray’]s 27 pages of written material.
3. An order compelling Respondent Wetzel to enforce 37
Pa. Code § 93.9, and DC-ADM 804 § 1 (A.24).
4. An order compelling Respondents Wiggins and Dupont
to comply with 37 Pa. Code§ 93.9, and DC-ADM 804 § 1
(A.24), and Administrative Agency Law [].
5. An order prohibiting Respondents Dupont and Wiggins
from deciding any remanded hearing concerning
misconduct #CO65439 or related issues, due to the
possibility of implicit bias.
6. An order prohibiting the Respondents from further
practicing the “ALL OR NONE” plea process.
7. Order the Respondents to expunge the disciplinary
conviction described in this complaint from [Murray’]s
institutional record.
8. Order the Respondents to reinstate [Murray] to his
previous place of institutional employment at CI-Laundry
with the prior rate of 42¢ an hour.
9. Order Respondents to credit [Murray] for time served in
the RHU.
10. An order prohibiting the Respondents from utilizing the
currently inadequate misconduct reports.
11. An order compelling the Respondents to correct the
deficiencies in 37 Pa. Code § 93.10, and DC-ADM 801,
along with the plea process and misconduct reports to
reflect a multiple count scenario which is consistent with
the law of this Commonwealth.
7
March 9, 2018.8 Murray filed his Answer to Preliminary Objections on May 10,
2018. On May 21, 2018, this Court filed an order directing the Preliminary
Objections to be decided on briefs. The parties have each submitted briefs, and the
matter is now ripe for determination.
Initially, we note that:
[i]n 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 complaint and all inferences
reasonably deducible therefrom. It tests the legal
sufficiency of the challenged pleadings and will be
12. An order compelling the Respondents to provide
[Murray] a full due process hearing.
13. An order enjoining the Respondents from taking any
future action against [Murray] concerning the possession
of any returned written material.
C. [Murray] also seeks equitable relief for the recovery of costs
associated with the filing of this complaint and lost wages for the
months of Aug., Sept., Oct., Nov., and Dec. 2017.
D. And any additional relief this [C]ourt deems just, proper and
equitable.
Amended Petition at 22-25.
8
After Murray’s filing of the Amended Petition, this Court dismissed Respondents’
original preliminary objections as moot by order dated February 15, 2018.
8
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).
The Due Process Claim
Respondents first argue that Murray’s 14th Amendment due process
claim should be dismissed because Murray has failed to plead facts that would
establish that he was deprived of a protected property or liberty interest when he
received 30 days in disciplinary confinement, had contraband seized from his cell,
or lost his job in the prison laundry. See Respondents’ Brief at 9-11. We agree.
As this Court has explained:
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. To maintain a due process challenge, a party must
initially establish the deprivation of a protected liberty or
property interest. If, and only if, the party establishes the
deprivation of a protected interest, will the Court consider
what type of procedural mechanism is required to fulfill
due process.
Shore v. Pa. Dep’t of Corr., 168 A.3d 374, 383 (Pa. Cmwlth. 2017) (some internal
citations omitted). Procedural due process rights are triggered by deprivation of a
legally cognizable liberty interest. See Myers v. Ridge, 712 A.2d 791, 795 (Pa.
Cmwlth. 1998). “For a prisoner, such a deprivation occurs when the prison imposes
atypical and significant hardship on the inmate in relation to the ordinary incidents
of prison life.” Brown v. Blaine, 833 A.2d 1166, 1172 (Pa. Cmwlth. 2003) (quoting
9
Sandin v. Conner, 515 U.S. 472, 484 (1995)) (internal quotation marks omitted).
“Lesser restraints on a prisoner’s freedom are deemed to fall within the expected
perimeters of the sentence imposed by a court of law.” Brown, 833 A.2d at 1172
(quoting Sandin, 515 U.S. at 484) (internal quotation marks omitted). Prison inmates
maintain no protected interest in being housed at any particular custodial level within
a prison. Chem v. Horn, 725 A.2d 226, 229 (Pa. Cmwlth. 1999) (“remaining in a
prison’s general population is not a protected liberty interest”); see also Sandin.
Prison inmates also have no property interest in maintaining a prison job or in
property that is contraband. Bush v. Veach, 1 A.3d 981, 984 (Pa. Cmwlth. 2010);
Fennell v. Captain N.D. Gross (Pa. Cmwlth., No. 1198 C.D. 2015, filed Feb. 5,
2016),9 slip op. at 11 n.10 (“We recognize that . . . a prisoner does not possess a
protectable property interest in contraband.”) (citing Lowrey v. Cuyler, 521 F. Supp.
430, 433-34 (E.D. Pa. 1981)).
Here, although Murray received an aggregate of 30 days’ disciplinary
time for his misconduct, he has no protected interest in being housed at a particular
custodial level. See Chem, 725 A.2d at 229. Further, 30 days’ disciplinary time
does not represent an atypical and/or significant hardship in relation to ordinary
prison life so as to trigger a cognizable liberty interest. See Singleton v. Lavan, 834
A.2d 672, 675-76 (Pa. Cmwlth. 2003) (noting that an inmate’s placement in
restricted housing unit for 30 days does not violate his due process rights); Brown,
833 A.2d at 1172 (finding prisoner’s confinement for 120 days in prison’s long-term
security unit did not impose an atypical and significant hardship in relation to
ordinary prison life and did not trigger a liberty interest; no process was due even if
the transfer resulted in a less favorable living situation). Likewise, Murray has no
9
This Court’s unreported memorandum opinions may be cited for persuasive value. 210
Pa. Code § 69.414.
10
protected interest in maintaining his prison job. See Bush, 1 A.3d at 984; see also
Miles v. Wiser, 847 A.2d 237, 240-41 (Pa. Cmwlth. 2004). Nor does Murray have
a property interest in the witness statements/petition materials confiscated from his
cell that the hearing examiner deemed to be contraband.10 See Lowrey, 521 F. Supp.
at 433-34. Consequently, neither Murray’s 30 days’ disciplinary custody, the loss
of his job, nor the loss of his contraband property implicates his due process rights.
Further, the Amended Petition fails to plead facts sufficient to support
a claim that the process Murray received in this matter was inadequate. This Court
has held that the Department’s internal grievance procedure provides
constitutionally adequate and meaningful legal remedies to inmates. See Fennell v.
Goss (Pa. Cmwlth., No. 1198 C.D. 2015, filed October 2, 2015); Silo v. Ridge, 728
A.2d 394, 399 (Pa. Cmwlth. 1999). “Procedural due process is satisfied in prison
disciplinary proceedings resulting in the loss of benefits when the inmate is afforded
with (1) written notice of the violation charged at least 24 hours in advance of
hearing; (2) a written statement by the factfinders as to the evidence relied upon and
reasons for the disciplinary action; and (3) the right to call witnesses on his own
behalf and to present documentary evidence when institutional safety or correctional
goals will not be unduly placed in hazard.” Robson v. Biester, 420 A.2d 9, 12 (Pa.
Cmwlth. 1980) (citing Wolff v. McDonnell, 418 U.S. 539 (1974)).
Here, a hearing occurred on Murray’s misconduct charges pursuant to
the Department’s grievance procedures for which Murray had notice and an
opportunity to present a written version of the events. See Amended Petition
10
We note that Murray was not completely and permanently deprived of the papers
confiscated from his cell in that the confiscated materials were copies of the materials Murray
included as exhibits to the Grievance. See Amended Petition at 7, ¶ 32.
11
Exhibits E & H; Disciplinary Hearing Report. Murray complains that the hearing
examiner denied his request to call certain requested witnesses.11 See Amended
Petition at 5-6, ¶¶ 19 & 21-23. However, aside from the charges to which Murray
pleaded guilty, the hearing officer found Murray guilty only of the charge of
possession or circulation of a petition. See Disciplinary Hearing Report. The
Amended Petition does not plead that the confiscated papers were not in Murray’s
possession. Further, the Amended Petition does not plead that either of the requested
witnesses would have presented exculpatory or even relevant evidence regarding the
charge of possession or circulation of a petition. Thus, the Amended Petition fails
to plead a legally sufficient claim for inadequate process regarding the possession or
circulation of a petition charge.
Further, the United States Supreme Court has ruled that an inmate
cannot state a cognizable claim for the deprivation of property where there exists an
adequate post-deprivation remedy. See Hudson v. Palmer, 468 U.S. 517 (1984).
Murray claimed that he had availed himself of the inmate grievance process in an
attempt to remedy the seizure of his materials. See Amended Petition at 5, ¶ 20; 8-
9, ¶¶ 42-43; 14, ¶ 68; 19-20, ¶ 91. Murray had a hearing, the result of which he
appealed to the PRC, the prison Superintendent, and the Secretary’s Office of Inmate
Grievances and Appeals, losing at every level. The Amended Petition contained
nothing beyond Murray’s asserted dissatisfaction with the results of his Grievance,
which dissatisfaction does not state a claim for deficient post-deprivation process.
Finally, to the extent Murray claims his due process rights were violated
by being subjected to an “all-or-none” plea process, or that his guilty plea was
11
Murray sought to call Correctional Officer Palmieri and Sgt. Porborsky. Amended
Petition at 5, ¶ 19.
12
somehow treated as a blanket plea of guilty to all misconduct charges,12 we note that,
at his misconduct hearing, Murray pleaded guilty to two misconduct charges and not
guilty to three misconduct charges. See Disciplinary Hearing Report. Thus,
Murray’s claim that he was subjected to an unfair or inadequate “all-or-none” plea
process lacks merit.
The Administrative Agency Law Claim
Murray also alleges Respondents’ failure to provide adequate process
violated his rights under the Administrative Agency Law, 2 Pa.C.S. §§ 501-508,
701-704. See Amended Petition at 19-21, ¶¶ 90-94 (Count V). As we have
explained, “[a] decision by an intra-prison disciplinary tribunal is not a final
adjudication by an administrat[ive] agency within this Court’s appellate
jurisdiction[.]” Robson, 420 A.2d at 12. “It is well-established that [Department]
decisions concerning misconduct charges are beyond the scope of this Court’s
appellate or original jurisdiction.” Curtis v. Canino (Pa. Cmwlth., No. 160 M.D.
2015, filed Mar. 6, 2017) (finding not cognizable a claim challenging alleged
disciplinary tribunal hearing misconduct or an original jurisdiction challenge to the
result of a prison disciplinary tribunal). Thus, Murray fails to state a claim upon
which relief may be granted based on a violation of the Administrative Agency Law.
The First Amendment Access to Courts Claim
Murray also alleges the confiscation of his papers and legal materials
from his cell violated his First Amendment right to access the courts. See Amended
Petition at 19, ¶¶ 88-89 (Count IV).
12
See Amended Petition at 3, ¶ 11; 6-7, ¶¶ 24-31; 13, ¶ 62; 16, ¶ 78; and 21, ¶ 98.
13
As this Court has explained:
Although denial of access to legal documents may
constitute a violation of a prisoner's First Amendment
right to petition the courts and/or Fourteenth Amendment
due process rights, in order to state a cognizable claim for
violation of the right to access to the courts, a prisoner
must allege and offer proof that he suffered an “actual
injury” to court access as a result of the denial. The
Supreme Court has defined actual injury as the loss or
rejection of a nonfrivolous legal claim regarding the
sentencing or the conditions of confinement.
Hackett v. Horn, 751 A.2d 272, 275 (Pa. Cmwlth. 2000) (quoting Robinson v. Ridge,
996 F. Supp. 447, 449 (E.D. Pa. 1997)) (internal citations omitted). Where a
petitioner fails to point to any legal case or cause of action that was harmed or
defeated by the confiscation of materials, the petitioner has not suffered an actual
injury and fails to state an access to courts claim. Hackett, 751 A.2d at 276.
Here, Murray has failed to allege that any cause of action was harmed
by the confiscation of his legal papers. In fact, the Amended Petition explains that
the Grievance had been filed prior to the confiscation of the papers. As such, Murray
has not claimed that the confiscation of his papers harmed a case or cause of action,
and thus, Murray has failed to state an access to courts claim.
The Retaliation Claim
To the extent Murray alleges Respondents violated his First
Amendment rights by improperly retaliating against him for having filed the
Grievance, he fails to state a claim.
In prisoner retaliation claims, “courts require proof the inmate engaged
in constitutionally protected conduct, prison officials took adverse action, and the
14
protected conduct was a substantial or motivating factor for the action.” Yount v.
Pa. Dep’t of Corr., 966 A.2d 1115, 1120 (Pa. 2009). In addition to these basic
elements, to prevail on a retaliation claim, a prisoner also maintains the burden of
proof to disprove a legitimate penological goal for the alleged retaliatory action. Id.
The reason for this requirement stems from the “potential for abuse” inherent in
retaliation claims and also a policy of judicial deference to the prison officials’
“legitimate interest in the effective management of a detention facility.” Id. at 1120-
21. “Claims of retaliation fail if the alleged retaliatory conduct violations were
issued for the actual violation of a prison rule.” Horan v. Newingham (Pa. Cmwlth.,
No. 2622 C.D. 2015, filed Oct. 24, 2016), slip op. at 9 (quoting Hartsfield v. Nichols,
511 F.3d 826 (8th Cir. 2008)). “Thus, a defendant may successfully defend a
retaliatory discipline claim by showing some evidence the inmate actually
committed a rule violation.” Id. Further, “a report from a correctional officer, even
if disputed by the inmate and supported by no other evidence, legally suffices as
‘some evidence’ upon which to base a prison disciplinary violation[.]” Id. at 9-10.
Here, Murray has not pleaded facts that establish Respondents lacked a
legitimate penological interest in issuing the misconduct violations. Many courts
have found that the banning of the circulation of petitions by prisoners represents a
legitimate penological interest for prison administrators. See May v. Libby, 256 F.
App’x 825, 829 (7th Cir. 2007) (“Banning petitions to maintain control over group
activity by prisoners is a reasonable response to a legitimate penological concern.”);
Westefer v. Snyder, 422 F.3d 570, 575 (7th Cir. 2005) (“The decision of prison
administrators as to the detrimental effect of [group activity] is a decision to which
we owe great deference.”); Duamutef v. O’Keefe, 98 F.3d 22, 24 (2d Cir. 1996)
(explaining that prisons may ban circulation of petitions provided grievance
15
procedures remain available); Wolfel v. Morris, 972 F.2d 712, 716 (6th Cir. 1992)
(“[A] prison does not violate a prisoner’s rights by refusing to allow circulation of
petitions.”). Additionally, materials circulated for signature by multiple prisoners to
support grievances can constitute a petition. See May, 256 F. App’x at 829 (finding
that the confiscation of identical grievance materials ostensibly from 10 different
inmates “substantiated the defendants’ explanation that they searched [the
prisoner’s] cell not because he had grieved prison conditions, but because he had
circulated a petition.”).
Here, the Amended Petition alleges simply:
[Murray] avers that the actions of the Respondents were
not related to a legitimate penological interest, and only
served to arbitrarily and irrationally single [Murray] out as
an individual for unfair treatment, [Murray] was treated
differently from other inmates in similar situations without
a rational basis.
Amended Petition at 10, ¶ 47. This bald accusation fails to state a claim that
Respondents lacked a legitimate penological goal for the alleged retaliatory action.
Thus, Murray’s retaliation claim fails.
Additionally, the Amended Petition indicates that Murray actually
committed multiple rule violations. First, he pleaded guilty to the charges of
possession of contraband and failure to report the presence of contraband. See
Disciplinary Hearing Report. This plea alone constitutes “some evidence” that
Murray committed a rule violation. Further, the Amended Petition explains that the
confiscated papers were copies and originals of exhibits to his previously-filed
Grievance, which exhibits included nearly identical signed statements from multiple
other inmates regarding Murray’s complaints against the prison laundry supervisor.
16
See Amended Petition at 7, ¶ 32; see also Grievance Exhibits, attached to the
Amended Petition as Exhibits B3-B10. These materials also represented “some
evidence” of a violation of the prison rule against inmates possessing or circulating
petitions. See May, 256 F. App’x at 829. For these reasons, the Amended Petition,
to the extent it states a retaliation claim, fails to state a claim upon which relief may
be granted.
Accordingly, we sustain Respondents’ Preliminary Objections and
dismiss the Amended Petition. Additionally, given our disposition, we deny
Murray’s Motion for Sanctions.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Albert Murray, :
Petitioner :
:
v. :
:
Pennsylvania Department of :
Corrections, et al., : No. 595 M.D. 2017
Respondents :
ORDER
AND NOW, this 2nd day of May, 2019, Respondents’ Preliminary
Objections to [Amended] Petition for Review are SUSTAINED and petitioner
Albert Murray’s (Petitioner) Amended Petition for Review (In the Nature of a
Complaint In Mandamus) is DISMISSED with prejudice.
Petitioner’s Motion for Sanctions filed August 7, 2018 is DENIED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge