J.A. Paluch, Jr. v. PA DOC , 175 A.3d 433 ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James A. Paluch, Jr., :
:
Petitioner :
:
v. : No. 364 M.D. 2016
: Submitted: April 21, 2017
PA Department of Corrections, :
SCI-Albion, Nancy Giroux, Tammy :
Turner, Valarie Kusiak, Lisa Sherretts, :
Terri Bortles, Patrick McElhinny, Karen :
McMillen, Robin Naas, Sandra Gorniak, :
Patrick Brady, Anthony S. Pinko, Earl :
Jones, John Doe Officer #1 and John :
Doe Officer #2, :
:
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
SENIOR JUDGE COLINS FILED: November 28, 2017
James A. Paluch, Jr. (Petitioner), filed a petition for review1 in this
Court’s original jurisdiction alleging a series of common law tort, constitutional, and
1
Petitioner originally filed a complaint in the Court of Common Pleas of Erie County. By June 8,
2016 motion, Petitioner requested that his complaint be transferred to the original jurisdiction of
this Court, which was accomplished by a June 10, 2016 order of the Court of Common Pleas of
Erie County. See 42 Pa. C.S. §§ 761, 5103. Upon transfer to this Court, the pleading initiating
Petitioner’s cause of action is docketed as a “petition for review” rather than a “complaint.” See
Pa. R.A.P. 1502, 1513(d). Petitioner filed preliminary objections to Respondents’ preliminary
objections requesting that rather than rule on the demurrer to Petitioner’s claims sounding in
trespass, this Court transfer the petition for review back to the Court of Common Pleas of Erie
County to address these particular claims. This matter was transferred to this Court because of the
mandamus claims, and naming as respondents the Pennsylvania Department of
Corrections, SCI-Albion, Nancy Giroux, Tammy Turner, Valarie Kusiak, Lisa
Sherretts, Terri Bortles, Patrick McElhinny, Karen McMillen, Robin Naas, Sandra
Gorniak, Patrick Brady, Anthony S. Pinko, Earl Jones, John Doe Officer #1 and John
Doe Officer #2 (collectively Respondents). Petitioner requests, inter alia, that this
court award punitive and compensatory damages, costs, fees and interest, and that
this Court issue: (a) a declaratory judgment, the content of which is specified in
paragraph 504(A)(1)-(15) of the petition for review; (b) a preliminary and a
permanent injunction; and (c) a legal opinion addressing specific questions of law
identified in paragraph 504(c)(1)-(2)2 of his petition for review.
In response to Petitioner’s petition for review, Respondents filed
preliminary objections in the nature of a demurrer pursuant to Pennsylvania Rule of
equitable relief sought by Petitioner and the fact that the suit is against the Commonwealth
government; we find no error in this jurisdictional determination.
2
The questions identified by Petitioner are as follows:
1. Does the Pltf. and other state prisoners similarly situated in the
PA DOC who are the prisoner-beneficiaries of an administrative
trust fund have the right to vote by a fair election process a body of
prisoners to represent their best interests with regards to the planning
and budgeting of [Inmate General Welfare Fund (IGWF)] monies
which includes the approval and disapproval of IGWF business
transactions and other related expenditures at each PA DOC facility
and at the PA DOC Central Office ?;
and,
2. Does the Pltf. and other state prisoners similarly-situated have the
right as prisoner-beneficiaries of the IGWF as to how their private
monies should be collected, planned, budgeted, dispersed, spent and
otherwise disposed of?
(Petition for Review, ¶¶504(C)(1)-(2).)
2
Civil Procedure No. 1028(4).3 Respondents also argue that it is clear from the face
of the petition for review that the majority of Petitioner’s claims are barred by the
doctrine of sovereign immunity. Respondents’ preliminary objections separate
Petitioner’s claims into two categories: first, Respondents identify counts (i)-(xii)
as claims challenging spending and purchasing decisions made with funds contained
in the Inmate General Welfare Fund (IGWF) by employees of the Pennsylvania
Department of Corrections (DOC); next, Respondents identify counts (xiii)-(xvi) as
claims related to Petitioner’s personal property.4
I. IGWF Claims
Petitioner asserts eleven common law tort claims arising from
allegations regarding the IGWF. Respondents argue that Petitioner has failed to state
valid claims for relief because Petitioner’s claims rely upon DOC’s Fiscal
Administration Policy (FAP) creating mandatory duties that are enforceable by
Petitioner and similarly situated prisoners, rely upon erroneous legal interpretations
of trust and property law, and are barred by the doctrine of Sovereign Immunity.5
We agree.
3
In ruling on a demurrer, this Court must accept as true all well-pleaded allegations of material
facts in the petition for review, as well as all of the inferences reasonably deducible from those
facts. Black v. Pennsylvania Department of Corrections, 889 A.2d 672, 675 n.5 (Pa. Cmwlth.
2005). However, our standard does not require this Court to accept as true conclusions of law,
unwarranted factual inferences, argumentative allegations, or expressions of opinion. Dodgson v.
Pennsylvania Department of Corrections, 922 A.2d 1023, 1027-28 (Pa. Cmwlth. 2007).
4
The Petition for Review filed by Petitioner includes the following sixteen counts: (i) breach of
fiduciary duties; (ii) breach of trust; (iii) conversion; (iv) failure to disclose; (v-viii)
misappropriation of funds; (ix) violation of due process; (x) intentional misrepresentation; (xi)
theft by deception; (xii) unjust enrichment; (xiii) negligent destruction of property; (xiv) lack of
notice; (xv) violation of the takings clause; and (xvi) mandamus.
5
Immunity is an affirmative defense that ordinarily must be pled as a new matter. Pa. R.C.P. 1030.
An exception to this rule exists where it is apparent from the face of the complaint that immunity
acts as a bar to the cause or causes of action. Feldman v. Hoffman, M.D., 107 A.3d 821, 829 (Pa.
3
a. FAP
The allegations underlying Petitioner’s IGWF claims center on
Respondents’ use of the interest and investment income held in the IGWF to
purchase items for State Correctional Institution-Albion (SCI-Albion), including a
new scoreboard for the gymnasium, stainless steel security furniture to replace
existing wooden furniture, and seeds and materials for the SCI-Albion Greenhouse
Project. (Petition for Review, ¶¶67-89.) Petitioner also alleges that Respondents
squandered IGWF monies by purchasing items at grossly inflated prices. (Id. ¶¶66,
78-84.) In addition to Petitioner’s allegations surrounding the use of IGWF funds,
Petitioner challenges the manner in which the IGWF is funded, alleging that it is
funded by services provided to prisoners at inflated prices, taxes or levies placed by
DOC on the sale of items to prisoners, and interest earned on the principal in
prisoner’s DOC accounts. (Id. ¶¶45, 73, 205.) Petitioner further contends that he
and similarly situated prisoners are entitled to determine how the IGWF is funded
and how the monies within the fund are spent, which necessarily includes the right
to inspect IGWF records and related documents. (Id. ¶¶203-212.)
Pennsylvania statutory law mandates that DOC maintain an account for
all prisoners. Sections 3124, 3125, and 5904 of the Prisons and Parole Code, 61 Pa.
C.S. §§ 3124-3125, 5904. The FAP adopted by DOC to implement this statutory
requirement both establishes and governs the administration and use of the IGWF.
Pursuant to DOC’s FAP, the principal from a prisoner’s personal account is held in
a central fund, the IGWF, and invested by the IGWF Council along with sales from
Cmwlth. 2014) (where petitioner fails to object by preliminary objection to respondent raising
immunity by preliminary objection and the issue is apparent from the face of the complaint, the
matter may be decided upon review of preliminary objections); Orange Stones Co. v. City of
Reading, 87 A.3d 1014, 1022 (Pa. Cmwlth. 2014).
4
commissary, hobby craft functions, and personal services available to facility
employees, as well as donations from individuals or organizations for the benefit of
prisoners. FAP 3.1.1, § IV, ¶K. Although the principal in a prisoner’s account
remains the individual prisoner’s property, the investment income from the IGWF
does not accrue to any individual prisoner and instead, pursuant to the FAP, “is used
solely for the benefit of inmates of the [DOC] facilities.” Id.6 The FAP adopted by
DOC also specifies the responsibilities of each facility utilizing the IGWF, including
that the facility:
Establish inmate input into operation of the fund at each
facility. This shall be accomplished by the use of a
committee consisting of staff and inmate representatives
who shall be used in planning IGWF activities. They shall
also be responsible for posting a monthly statement of
fund activities on all inmate bulletin boards for the
respective facility[.]
FAP 3.1.1, § IV, ¶K(6)(g). The FAP does not provide prisoner IGWF
representatives at each facility with authority to approve, veto, or vote on how the
IGWF monies are spent, rather the FAP mandates that each facility establish a
committee consisting of staff and prisoner representatives to ensure “inmate input.”
Id. The FAP, however, is not statutory or constitutional law; the detailed regulations
set forth in the FAP concerning the responsibilities a facility has in operating the
IGWF cannot form the basis of a cause of action because allegations that DOC has
6
The accounting policy adopted by DOC provides that a prisoner may “open a savings account
with a bank in the community if you wish to earn interest,” see Inmate Handbook (2017 ed.) § I,
¶A(1), but does not permit a prisoner to “use a checking account that was opened prior to your
incarceration or open a checking account while you are incarcerated.” Id. at ¶A(7)(f); see also Hill
v. Department of Corrections, 64 A.3d 1159, 1165 n.3 (courts may take judicial notice of DOC’s
policies and handbooks, which appear on DOC’s official website).
5
failed to adhere to its own policies and regulations do not state a claim for relief.
Shore v. Department of Corrections, 168 A.3d 374, 386 (Pa Cmwlth. 2017); Tindell
v. Department of Corrections, 87 A.3d 1029, 1035 (Pa. Cmwlth. 2014); Yount v.
Department of Corrections, 886 A.2d 1163, 1169 (Pa. Cmwlth. 2005); Weaver v.
Department of Corrections, 829 A.2d 750, 752 (Pa. Cmwlth. 2003); Bullock v. Horn,
720 A.2d 1079, 1082 n.6 (Pa. Cmwlth. 1998). Moreover, in an effort to dispel any
notion that the FAP is enforceable by Petitioner and other similarly situated
prisoners, the FAP explicitly states, “[t]his policy does not create rights in any
person.” FAP 3.1.1 § VI.
Accordingly, Petitioner’s claims in counts I-XII do not state a cause of
action and must be dismissed because these claims allege that Respondents failed to
adhere to the FAP.
b. Sovereign Immunity
In addition, even if Petitioner’s reliance on the FAP did not prevent
him from stating a claim upon which relief may be granted, it is clear from the face
of the petition for review that the doctrine of sovereign immunity bars Petitioner’s
tort claims. Sovereign immunity acts as a bar to suits against Commonwealth
parties, including its officials and employees acting within the scope of their duties.
1 Pa. C.S. § 2310. Establishing a limited list of exceptions to immunity, the General
Assembly adopted what is commonly referred to as the Sovereign Immunity Act, 42
Pa. C.S. §§ 8501-8502, 8521-8527. Section 8522 of the Sovereign Immunity Act
waives “immunity as a bar to an action against Commonwealth parties, for damages
arising out of a negligent act where the damages would be recoverable under the
common law or a statute creating a cause of action if the injury were caused by a
person not having available the defense of sovereign immunity,” for specifically
6
enumerated categories of acts. 42 Pa. C.S. § 8522. A “Commonwealth party” is
defined in Section 8501 as “[a] Commonwealth agency and any employee thereof,
but only with respect to an act within the scope of his office or employment.” 42
Pa. C.S. § 8501. Thus, when an employee of a Commonwealth agency, such as a
DOC employee, is acting within the scope of his or her duties, the employee is
shielded by the doctrine of sovereign immunity from liability for tort claims arising
from negligent acts that do not fall within the statutory exceptions listed in Section
8522(b) of the Sovereign Immunity Act. 1 Pa. C.S. § 2310; 42 Pa. C.S. § 8522(a)-
(b). Sovereign immunity is not waived for intentional acts committed by a
Commonwealth employee acting within the scope of his or her employment. La
Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992).
Each of the state law IGWF claims that Petitioner asserts in his petition
for review are either intentional torts or they do not fall within the exceptions in
Section 8522 of the Sovereign Immunity Act that would permit Petitioner to
maintain a suit against Respondents. 42 Pa. C.S. § 8522(b). For example, in Count
I of his petition for review, Petitioner alleges a breach of fiduciary duty. Setting
aside the legal conclusions underlying much of Petitioner’s allegations, such as
Petitioner’s assertion that he and similarly situated prisoners are “beneficiaries” and
Respondents are “trustees” of the IGWF, Petitioner would still fail to state a claim
for relief because the Commonwealth has not waived its immunity for claims
alleging a breach of fiduciary duty. Id.; compare Doe v. Franklin County, 139 A.3d
296, 318 (Pa. Cmwlth. 2016) (holding that what is commonly known as the Tort
Claims Act, 42 Pa. C.S. §§ 8541-8564, bars the common law tort claim breach of
fiduciary duty).7 Likewise, in each count where Petitioner is attempting to allege an
7
See Jones v. Southeastern Pennsylvania Transportation Authority, 772 A.2d 435, 440 (Pa. 2001)
(“the legislature's intent in both the Sovereign Immunity and Tort Claims Acts is to shield
7
intentional tort, such as Count VI where he alleges that a subset of Respondents
misappropriated IGWF monies to purchase standard security furniture for SCI-
Albion, Petitioner fails to allege that this subset of Respondents acted outside the
scope of their duties. (See PFR, ¶¶ 286-293.) As a result, it is clear from the face of
the petition for review that Respondents are immune from suit for breach of fiduciary
duties (Count I), breach of trust (Count II), conversion (Count III), failure to disclose
(Count IV), misappropriation of funds (Count V-VIII), intentional misrepresentation
(Count X), theft by deception (Count XI), and unjust enrichment (Count XII).
c. Constitutional Claims
Petitioner also asserts that the interest accrued on the principal in his
DOC account was taken by Respondents in derogation of his Fifth and Fourteenth
Amendment rights to due process and to be free of a government taking of his
property for public use. A procedural due process claim requires the petitioner to
have an interest that falls within the scope of “life, liberty, or property.” Daniels v.
Williams, 474 U.S. 327, 331 (1986). A claim under the takings clause of the Fifth
Amendment requires the petitioner to demonstrate that he has a constitutionally
protected property interest. Penn Central Transportation Co. v. New York, 438 U.S.
104, 125 (1978). The United States Constitution does not create property interests;
rather, an independent source such as state statutory law creates and defines the
property interests protected by the constitution. Board of Regents of State College
v. Roth, 408 U.S. 564, 577 (1972). In Pennsylvania, the account DOC maintains for
Petitioner is a creature of statute. Sections 3124, 3125, and 5904 of the Prisons and
Parole Code, 61 Pa. C.S. §§ 3124-3125, 5904. By virtue of statute, prisoners are
government from liability, except as provided for in the statutes themselves, we apply a rule of
strict construction in interpreting these exceptions. Moreover, as the immunity statutes deal with
the same subject matter, we read them consistently” (internal citations omitted).)
8
credited an amount determined by DOC as wages for time engaged in work,
prisoners are permitted to draw upon any positive balance to provide for present
needs, and DOC may deduct assessments and court ordered costs. Id. Petitioner has
a property interest in the principal contained in his DOC account; therefore, he is
entitled to due process with respect to any deprivation of that principal. Buck v.
Beard, 879 A.2d 157, 160 (Pa. 2005); see also Mahers v. Halford, 76 F.3d 951, 954
(8th Cir. 1996), cert. denied, 519 U.S. 1061 (1997). However, there is no
Pennsylvania statute mandating that Petitioner receive interest or investment income
from the principal held in his DOC account.
Recognizing the absence of a statutorily derived property interest,
Petitioner contends that his property interest derives from the common law rule that
“interest follows principal.” See Phillips v. Washington Legal Foundation, 524 U.S.
156, 164 (1998) (citing Beckford v. Tobin, 27 Eng. Rep. 1049, 1051 (Ch. 1749)
(“[I]nterest shall follow the principal, as the shadow the body”)). In support of his
argument that he has a property interest in any interest or income earned on the
principal in his DOC account, Petitioner relies upon the Ninth Circuit Court of
Appeals holding in Schneider v. California Department of Corrections, 151 F.3d
1194 (9th Cir. 1998). In Schneider, the Ninth Circuit Court of Appeals held that
California prisoners “possess a constitutionally cognizable property interest,” in the
income earned on their prison accounts, “that triggers Takings Clause scrutiny.” Id.
at 1201. The reasoning in Schneider is persuasive; however, it leads us to a contrary
holding.
In Schneider, the Ninth Circuit Court of Appeals reasoned that:
The States’ power vis-a-vis property thus operates as a
one-way ratchet of sorts: States may, under certain
9
circumstances, confer “new property” status on interests
located outside the core of constitutionally protected
property, but they may not encroach upon traditional “old
property” interests found within the core.
Id. at 1201. The court concluded that the common law rule interest follows the
principal created a traditional property interest that fell within the core of
constitutional protection and that, therefore, could not be rescinded by state statute.
Id. The court relied upon Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S.
155 (1980), which held that despite a state statute to the contrary, counties must
return to the owner of the principal interest accrued on an interpleader fund deposited
with a county court, and Phillips v. Washington Legal Foundation, 524 U.S. 156(1998), which held that despite a state statute providing for the interest to be used to
fund indigent legal services, clients retained a protected property interest in interest
accrued on their funds held in an Interest on Lawyers Trust Account (commonly
known as an IOLTA). In both Webb’s and Phillips, the independent source for the
constitutionally protected property interest triggering the scrutiny of the Takings
Clause was the common law principle that interest follows the principal. However,
as persuaded as we are by the reasoning employed by the court in Schneider, we
conclude that its reliance on the common law principle at work in Webb’s and
Phillips was mistaken. We reach this conclusion because at common law, prisoners
had no personal property rights.8
8
See 1 William Blackstone, Commentaries *299 (“[A]ll property is derived from society, being
one of those civil rights which are conferred upon individuals, in exchange for that degree of
natural freedom which every man must sacrifice when he enters into social communities. If
therefore a member of any national community violates the fundamental contract of his
association, by transgressing the municipal law, he forfeits his right to such privileges as he claims
by that contract; and the state may very justly resume that portion of property, or any part of it,
which the laws have before assigned him.”); 4 Id. *385 (discussing forfeiture by a convicted felon);
10
In Washlefske v. Winston, 234 F.3d 179 (4th Cir. 2000), the Fourth
Circuit Court of Appeals reached the same conclusion. Relying on the reasoning
employed by the Ninth Circuit Court of Appeals in Schneider—that states may
create property interests by statute but may not encroach upon pre-existing common
law property interests—the Fourth Circuit Court of Appeals held the petitioner:
Never had a private property interest in these accounts as
defined by common law, but only an interest defined by
statute—a statute that gives him limited rights to those
funds—he cannot claim that a property interest based on
traditional principles of property law was taken. His
property interest was that given by statute, and the State
never took from him what was created by statute.
Therefore, there was not a taking of private property as
addressed in the Fifth Amendment.
234 F.3d at 186. The Eleventh Circuit Court of Appeals came to the same conclusion
in Givens v. Alabama Department of Corrections, 381 F.3d 1064 (11th Cir. 2004),
where it held that prisoners in Alabama “do not have a common law property right
to the interest that accrues on their accounts,” and that because Alabama statutes are
silent as to what is to become of any interest earned, statutory law does not vest
prisoners with a property interest in the interest that accrues on their account. Id. at
1069-1070; see also Young v. Wall, 642 F.3d 49, 54 (1st Cir. 2011) (accord); Foster
v. Hughes, 979 F.2d 130, 132 (8th Cir. 1992) (accord).
see also United States v. Kozminski, 487 U.S. 931, 943-944 (1988) (requiring inmates to work
without pay does not violate the Thirteenth Amendment’s prohibition against involuntary
servitude); Calero–Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 682 (1974) (at English
common law “a breach of the criminal law was an offense to the King’s peace, which was felt to
justify denial of the right to own property”).
11
Accordingly, we hold that Petitioner has failed to state a claim under
the due process and takings clauses of the Fifth Amendment to the United States
Constitution because he has no property interest in the interest and income earned
on the principal in his DOC account. The basis of our holding is the conclusion that
Petitioner has no common law right to the interest on the principal and the Prisons
and Parole Code does not create a statutory right but rather is silent.
II. Personal Property Claims
In the second set of claims, Petitioner asserts that a subset of
Respondents destroyed his property through intentional and negligent acts and
violated his due process rights. Petitioner further alleges that Respondents have
violated his right under the Fifth and Fourteenth Amendments by arbitrarily taking
his personal property. The allegations underlying Petitioner’s personal property
claims center on the destruction of Petitioner’s manual typewriter, his typewriter
case, and his footlocker, and damage to Petitioner’s headphones. (Petition for
Review (PFR), ¶¶95-113.) In addition, Petitioner alleges that Respondents failed to
provide him with notice that his personal property was in danger of being destroyed
and frustrated his ability to utilize the grievance system; Petitioner contends that
while these actions are particular to him, they are also reflective of a pattern and
practice adopted by the SCI-Albion Respondents. (Id. ¶¶105-109, 226-236.)
In Count XIII of his petition for review, Petitioner asserts that a subset
of Respondents acted negligently by failing to advise him of their intent to confiscate
his typewriter, typewriter case, and footlocker and to subsequently destroy these
items. (PFR, ¶¶346-353.) However, despite Petitioner’s use of the term negligent,
the allegations set forth in his petition do not state a claim for negligence. In
Williams v. Stickman, 917 A.2d 915 (Pa. Cmwlth. 2007), this Court held that a
12
petitioner stated a claim for negligence within the personal property exception to the
Sovereign Immunity Act because he stated “a claim for damages to his television set
caused by the care of the television set while it was in the possession of
Commonwealth parties.” Id. at 918; see also 42 Pa. C.S. § 8522(b)(3). By contrast,
in the instant matter Petitioner alleges that his property was intentionally destroyed,
a claim which is barred by the doctrine of sovereign immunity. Williams, 917 A.2d
at 917.
Next, Petitioner alleges in Count XIV of his petition for review that
Respondents violated his due process rights because they failed to provide him with
written notice and an opportunity to be heard prior to the seizure and subsequent
destruction of his property. Petitioner does not allege that he did not have a post-
deprivation remedy; Petitioner instead alleges that he should have a pre-deprivation
remedy. Petitioner again fails to state a claim upon which relief can be granted. As
we stated in Shore v. Department of Corrections, 168 A.3d 374 (Pa. Cmwlth. 2017),
When a prison official confiscates a prisoner’s property in
an allegedly unauthorized way, whether it be negligently
or intentionally, due process requires only the existence of
an adequate post-deprivation remedy because it is not
feasible for a prison to provide a hearing prior to taking
property that is perceived to be contraband or against
prison regulations.
Id. at 383. Furthermore, we stated that the “courts have repeatedly held that inmate
grievance systems are an adequate post-deprivation remedy.” Id.Next, Petitioner alleges in Count XV of his petition for review that
Respondents’ seizure and destruction of his property amounted to a violation of the
Takings Clause. Petitioner alleges that he retained a clear right to possess the
13
confiscated personal property under DOC’s policies and that he has exhausted the
administrative remedies available to him. (PFR, ¶¶108-110.) However, despite
Petitioner’s focus on the Takings Clause, his allegations state that a subset of
Respondents engaged in an “arbitrary taking of his personal property.” (PFR, ¶367.)
Petitioner’s claim is thus a due process claim rather than a claim that his property
was taken for public use without payment of just compensation.
In Bell v. Wolfish, 441 U.S. 520 (1979), the United States Supreme
Court expressed the axiomatic principle that “simply because prison inmates retain
certain constitutional rights does not mean that these rights are not subject to
restrictions and limitations.” Id. at 546. The Court held in Bell v. Wolfish that, inter
alia, personal property rights of prisoners are “subject to reasonable limitation or
retraction in light of the legitimate security concerns of the institution.” Id. at 554.
Relying in part on Bell v. Wolfish, the Court went on to hold in Hudson v. Palmer,
468 U.S. 517 (1984), that a prisoner does not state a valid due process claim for the
deprivation of personal property by prison officials or employees where there exists
an adequate post-deprivation remedy. Id. at 536. The inmate grievance system is
such an adequate post-deprivation remedy.
Finally, in Count XVI of his petition for review, Petitioner alleges that
a subset of Respondents have failed to comply with the mandatory language
contained in Section 7.2.1 of the DOC handbook regarding timely responses to
prisoner communications. We addressed similar allegations in Weaver, where we
held that the time constraints enacted as a part of DOC’s grievance system and
policies do not create a right to timely action enforceable by prisoners. 829 A.2d at
752-53.
14
III. Conclusion
In sum, the preliminary objections in the nature of a demurrer filed by
Respondents are granted and Petitioner’s petition for review in this Court’s original
jurisdiction is dismissed.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James A. Paluch, Jr., :
:
Petitioner :
:
v. : No. 364 M.D. 2016
:
PA Department of Corrections, :
SCI-Albion, Nancy Giroux, Tammy :
Turner, Valarie Kusiak, Lisa Sherretts, :
Terri Bortles, Patrick McElhinny, Karen :
McMillen, Robin Naas, Sandra Gorniak, :
Patrick Brady, Anthony S. Pinko, Earl :
Jones, John Doe Officer #1 and John :
Doe Officer #2, :
:
Respondents :
ORDER
AND NOW, this 28th day of November, 2017, the preliminary objection
in the above-captioned matter of the Pennsylvania Department of Corrections, SCI-
Albion, Nancy Giroux, Tammy Turner, Valarie Kusiak, Lisa Sherretts, Terri Bortles,
Patrick McElhinny, Karen McMillen, Robin Naas, Sandra Gorniak, Patrick Brady,
Anthony S. Pinko, Earl Jones, John Doe Officer #1 and John Doe Officer #2, are
GRANTED and the petition for review is DISMISSED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge