Lead Opinion
ORDER
AND NOW, this 18th dаy of January, 2018, the Order of the Commonwealth is
AFFIRMED.
Dissenting Opinion
DISSENTING STATEMENT
I respectfully dissent.
As a prisoner, Alton D. Brown necessarily has lost those privileges of citizenship that are fundamentally incompatible with his incarceration. Nonetheless, inmates detain certain inalienáble rights! including the right to dué process and thé right to the equal protection of our laws. See Hudson v. Palmer,
Pursuant to a RTKL request, the Pennsylvania- ■ Department of Environmental Protection (“DEP”) granted Brown access to reports containing the results of DEP water inspections at two- state correctional facilities. By his own averment,. Brown sought this public information “as a part of his ongoing' investigation into SCI-Smith-field’s drinking water contamination.” See Petition for Review, 6/19/2015, ¶ 9. Brown was charged approximately $100.00 to receive the reports'from DEP, Id at ¶4; When the package containing the reports arrived in the correctional facility’s mail room, DOC employees confiscated and retained it for approximately three weeks. At that point, DOC notified Brown that it had received the package and that “he was required, to send it.back out of the prison, or it would be destroyed.” Id. at ¶ 5. DOC provided no reason for the confiscation.
Having been denied the reports, access to which'DEP already had determined that Brown was entitled pursuant to the RTKL, Brown' sought redress through DOC’s internal grievance process. Brown submitted a grievance in which he alleged that DOC: had violated his rights under the RTKL; had provided no reasons' or justifications for the confiscation; and had violated its own policies regarding inmate mail access. DOC denied Brown’s grievance, and the initial grievance' resрonse was upheld throughout Brown’s administrative appeals. Id. at ¶ 8. However, “[n]one' of ■ the appeal résponses provided any justifications” as to why the “inspection reports constituted contraband” that Brown was not entitled to possess. Id. at ¶ 9.
Left without any other legal recourse, Brown filed a petition for review in the Commonwealth Court’s original jurisdiction, seeking mandamus relief upon the basis that he' was entitled to the DEP reports, which do not .fit. the definition of contraband under DOC’s policies. John E. Wetzel, Secretary of DOC. and the named defendant in this matter, filed preliminary objections in the nature of a demurrer, arguing that Brown was ineligible for mandamus relief because he had established no clear legal right to access the reports, because, as a prisoner, Brown does not enjoy the same rights as non-incarcerated citizens, and because DOC had a prerogative to employ its discretion in assessing potential security concerns, the exercise of which must be afforded deference by our courts. Wetzel further argued that, due to Brown’s status as an “abusive litigator,”
The Cоmmonwealth Court sustained the preliminary objections and dismissed Brown’s petition. See Brown v. Wetzel, 318 M.D. 2015,
The court further held that Brown failed to establish а right to possess the records at issue because “[a]n inmate does not have the same right to possess records as a non-incarcerated citizen.” Id. The Commonwealth Court relied upon a nonprece-dential decision in which it had determined that a prisoner could be denied access to the first names of corrections officers pursuant to one of the RTKL’s enumerated exceptions, and had further opined that the prisoner could be denied access to the records even if the exception did not apply. Id. (quoting Stein v. Office of Open Records, 1236 C.D. 2009,
The Commonwealth Court concluded as well that mandamus would not lie, because Brown was not without an alternative remedy. Brown’s remedy, the court determined, could be obtained through DOC’s inmate grievance process. The court stated that “[o]ur courts recognize that DOC’s grievance process is constitutionally adequate,” Brown,
Alternatively, the Commonwealth Court determined that Brown’s petition must be dismissed pursuant to Subsection 6602(e)(2) of the PLRA. The court recognized that the provision applies only to the dismissal of “prison conditions litigation” which, inter alia, “is frivolous or malicious or fails to state a claim upon which relief may be granted.” 42 Pa.C.S. § 6602(e)(2). Because the court determined that Brown had failed to state a claim for mandamus relief, Subsection 6602(e)(2) could be invoked as a basis to dismiss Brown’s claim, but only if the instant action constituted “prison conditions litigation.” The court recited the PLRA’s definition of the term: “[a] civil proceeding arising in whole or in part under Federal or State law with respect to the conditions of confinement or the effects оf actions by a government party on the life of an individual confined in prison.” Brown,
We conclude that this Petition qualifies as “prison conditions litigation” within the statutory definition. [Brown] seeks return of his property confiscated' by DOC. Also, he allegedly plans to use the confiscated records to continue his investigation into drinking water contamination at a state correctional facility. Further, he avers improper retaliatory transfer. Bеcause the Petition fails to state a claim for mandamus relief, and thereby violates [Subs]ection 6602(e)(2) of the PLRA, dismissal is required.
Id. (citation omitted).
Finally, the ■ Commonwealth Court rejected Brown’s claim that his petition could be filed in both that court’s appellate and original jurisdiction. The matter properly was within the Commonwealth Court’s original jurisdiction because it was a proceeding brought against a Commonwealth party — the Secretary of DOC. Id. (citing 42 Pa.C.S. § 761(a)(1)). However, the court already had determined that Brown failed to state a claim for mandamus relief, and that his claim was subject to dismissal under the PLRA. Accordingly, the Commonwealth Court sustained,Wetzel’s preliminary objections and dismissed Brown’s petition with prejudice. Brown took a direct apрeal to this- .Court. See 42 Pa,C.S. § 723(a) (providing this Court with jurisdiction over direct appeals “from final orders of the Commonwealth Court entered in any matter which was originally commenced in the Commonwealth Court”).
Brown raises five issues for our review.
Because this matter arises from an order sustaining preliminary objections in the nature of a demurrer, our standard of review requires us to determine “whether, on the facts' averred, the law says with certainty' that no recovery, is possible.” Bruno v. Erie Ins. Co.,
Should the instant petition be deemed to advance “prison conditions litigation” that is subject to dismissal under the PLRA, any further consideration would be unnecessary. . Accordingly, I begin with the Commonwealth Court’s classification of the instant causе of action.. As. the Commonwealth Court correctly- observed, “prison conditions litigation” is defined, in relevant part, as a “civil proceeding arising in whole or in part under Federal or State law with' respect to' the conditions of confinement or the effects of actions by a government party on the' life of an individual confined in prison.” 42 Pa.C.S. § 6601. Here, although Brown concedes that he intends, at some point in the future, to use the DEP reports to' investigate drinking water conditions at certain correctional facilities, none of Brown’s instant averments relate to water quality, nor do they otherwise'allege that he is subject to unsanitary, inhospitable, or”'objectionable living conditions. Although' he alleges that DOC has deрrived him of various constitutional and statutory rights, he does not allege that any particular act ■ of any agent of DOC has negatively impacted his quality of life or the conditions of his confinement. Plainly, the gravamen of Brown’s aver-ments simply is that he was entitled to access certain documents pursuant to the RTKL, and DOC deprived him of that right without explanation or justification.
It is immaterial that Brown intends to use the requested documents in further-anee of an investigation into water contamination at correctional facilities, even if he plans to use the results of such an investigation as the basis for future prison conditions litigation.
In another recent decision . involving Brown, DOC, a RTKL request, and an assertion that the request at issue constituted “prison conditions litigation” warranting dismissal under the PLRA, the Commonwealth Court provided a far more ■persuasive analysis. In Brown v. Department of Corrections, 1959 C.D. 2016,
[E]ven though the RTKL request may be seeking prison documents, it is not “prison conditions litigation” because such a request does not seek to remedy any prison condition or anything that prison officials do or do not do that impact a. person in prison. The RTKL makes no distinction between prisoners and other citizens. The present request only seeks to .access public documents that any citizen of Pennsylvania can access for any reason. Moreover, it is irrelevant why documents are requested.
Id. at *1. Consistent with this approach, and in light of the fact that the instant petition raises no claims related to “the conditions of confinement or the effects of actions by a government party on the ‘life of an individual confined in prison,” 42 Pa.C.S. § 6601, the Commonwealth Court erred in concluding that Brown’s cause of action constituted “prison conditions litigation” subject to dismissal under the PLRA.
Turning to Brown’s requested relief, it is well-established that mandamus is “an extraordinary writ which will issue to compel performance of a ministerial act or mandatory duty where there exists1 a clear legal right in the petitioner, a corresponding duty in the respondent, and want of any other adequate and appropriate remedy.” Duncan v. Pa. Dep’t of Corr.,
Additionally, this Court has noted that, although “mandamus will not ordinarily lie to compel a series of particular acts or conduct, or to compel the performance of a particular discretionary act, it is available to direct that discretion be exercised.” Thornburgh,
In the instant case, the Commonwealth Court determined that Brown could not state a claim for mandamus relief because the deprivation of the requested records was an exercise of DOC’s discretion to assess potential security concerns. Wetzel endorses this conclusion. However, throughout these proceedings, Wetzel never has offered any explanation as to how the DEP reports constituted contraband, or how they posed any threat to the security of a correctional institution, or to any inmates or staff thereof. If DOC did, ih-deecl, assess the public records at issue and determine that they raised “security concerns,” then some articulable justification for that decision must exist. No details of the reason for that decision have been provided to Brown, and none are provided to this Court. Rather, as in the court below, Wetzel asserts only that “legitimate security concerns governed the decision to confíscate the material.” Brief for Wetzel at 8. A court must accept this decision, Wetzel argues, because “[DOC’s] determination that security concerns effected the confiscation of the records from DEP must be afforded deference.” Id. at 9.
The courts of this Commonwealth routinely dismiss the claims of incarcerated, pro se litigants upon the basis that their arguments are bald and conclusory, or that their averments are not accompanied by citation to support in the record. We should not so quickly overlook similarly threadbare assertions from the agencies of our own government, which are afforded far more substantial resources, and whose interests are protected and advanced by learned сounsel. If DOC exercised its discretion in a justifiable manner, then some explanation of its reasoning, however minimal, should be' offered in support of its determination.
I am unconvinced by Wetzel’s generalized argument that, because DOC exercised discretion in assessing security concerns, we must defer to its determination in tato, and without inquiry into the reasons, if any, for its decision. Deference to the discretionary functions of administrative agencies and lower tribunals is a core principle in our law. Nonetheless, “discretion” and “deference” cannot be elevated to talismanie status such that they become “magic words,” the invocation of which forces a reviewing court to close its éyes to arbitrary or vindictive dеcisions. Nor can such words insulate those decisions from judicial scrutiny, “render[ing] appellate review a mere empty formality.” Pittman v. Pa. Bd. of Prob. & Parole, — Pa. -,
With respect to the breadth of-DOC’s discretion and the reаsonable extent of judicial deference thereto, I find Justice John Paul Stevens’ concurring and dissenting opinion in Hudson instructive. Hudson concerned, inter alia, the seizure and destruction of an inmate’s noncontraband personal property, which included legal materials and letters. Justice Stevens wrote:
It is well-settled that the discretion accorded prison officials is not absolute. A prisoner retains those' constitutional rights not inconsistent with legitimate penological objectives. There can be no penological justification for the seizure alleged here. There is no contention that Palmer’s property posed any threat to institutional security. Hudson had already examined the material befоre he took and destroyed it. The allegation is that Hudson did this for no reason save spite; there is no contention that under prison regulations the material was contraband, and in any event as I have indicated above the Constitution prohibits a State from treating letters and legal materials as contraband...,. When, as here, the material at issue is not contraband it simply makes no sense to say that its seizure and destruction, serve “legitimate institutional interests.” Such seizures are unreasonable.
Hudson,
Likewise here, absent any assertion that the DEP reports constituted contraband, and absent any reasonable description of the purported security risk that they posed, Brown’s averments support a finding that the exercise of DOC’s discretion was' arbitrary, such that mandamus could be a viable remedy. See Banfield,
Standing alone, a demonstration that DOC’s discretion was exerciséd arbitrarily may not provide sufficient grounds for mandamus relief. A litigant requesting the writ must show a clear right to the remedy sought and the absence of an adequate alternative remedy. See, e.g., Duncan,
There is no binding justification for the Commonwealth Court’s conclusion that, due solely to his status as a prisoner, Brown’s rights under the RTKL are categorically and summarily limited. Relying upon the dictum in- its no'nprecedential decision in Stein, which, in turn, relied upon a decontextualized ‘ statement from this Court in Bronson, the Commonwealth Court determined that “[a]n inmate does not have the same right to possess records as a non-incarceratеd citizen.” Brown,
Unlike the criminal trial and appeals process where a defendant is accorded the full spectrum of rights and protеctions guaranteed by the state and federal constitutions, and which is necessarily within the ambit of the judiciary, the procedures for pursuing inmate grievances and misconduct appeals are a matter of internal prison administration and the “full panoply of rights due a defendant in a criminal prosecution is not necessary in a prison disciplinary proceeding ,... ” Robson v. Biester, [53 Pa. Cmwlth. 587,]420 A.2d 9 , 12 ([Pa. Cmwlth. ]1980) (citing Wolff v. McDonnell,418 U.S. 539 [94 S.Ct. 2963 ,41 L.Ed.2d 935 ] (1974)).
Bronson,
Brown complied with the RTKL process, and, after a legal review, DEP determined that the requested reports were public records not subject to any statutory exception. This procedure granted Brown, the “requestor,” a statutory’ “right to know” the information contained within those reports. In many cases, this conclusion may not be dispositive as it concerns a prisoner’s right of access. I would not foreclose the possibility that a public record may, in some circumstances, raise a legitimate security concern that could justify the DOC’s decision to deny an inmate’s access to the recоrd, despite a valid RTKL request. This was the thrust of the Commonwealth Court’s dictum in its nonpreee-dential decision in Stein, upon which that court relied, at least in part, in the instant case. In Stein, however, the RTKL request at issue included an inmate’s request for the first names of corrections officers— information that conceivably could pose a threat to those officers’ safety. Here, as noted, no explanation ever has been ■ offered as to the nature of the security concern that the DEP records presented, and none is apparent from the description of their contents. In certain,, circumstances, DOC’s .discretion- to assess security concerns may impact ■ the determination of whether an inmate possesses a clear right to access information obtained through a RTKL request. But, where that discretion is exercised arbitrarily, and where no credible assertion, is offered as to the Alleged security concern animating the decision to confiscate a public record, the RTKL provides a clear statutory right to possess such records.
Finally, in order to state a claim for mandamus relief, Brown must demonstrate that he had no alternative,.adequate remedy. Here, the Commonwealth Court concluded that Brown could not establish this prerequisite because he pursued, albeit unsuccessfully, a remedy through DOC’s internal inmate grievance process. I disagree. The Commonwealth Court observed that “[o]ur courts reсognize that DOC’s grievance .process is constitutiqnally adequate.” Brown,
Further, as the McCray Court noted, “the regulation promulgated by [DOC] enabling the internal grievance system specifically permits- inmates to pursue any remedies available to them in state or federal- forums.” Id. Specifically, Title 37, Chapter 93 of the Pennsylvania Code, which established the inmate grievance system, provides that “(i]nmates may also pursue- available remedies in State and Federal court.” 37 Pa.Code § 93.9(b). Thus',, the very regulatory framework that governs the inmate grievance process expressly recognizes that the remedies sought therein are not exclusive to that process. It is this explicit preservation of access to the courts that perhaps rescues this Court’s holding in Bronson from resting upon what otherwise may be questionable constitutional footing. In Bronson, this Court held that, where an inmate grievance did not assert the violation of a specific constitutional right, an appeal to a court of record from a denial of an inmate grievance would not lie in either the Commonwealth Court’s original or appellate jurisdiction. See Bronson,
Some route оf access to a court of record is essential to the vindication of a meritorious legal claim. Any process that categorically would deny judicial review of such a claim is not constitutionally adequate. Internal prison grievance processes and the manner of then- operation raise substantial concerns about the adequacy and fairness of adjudications taking place therein. Several intrinsic deficiencies define the process, which have not gone unnoticed in the legal and academic community.
Given these considerations, given that Brown had no right to appeal from the denial of his grievance pursuant to Bronson, given that the right at issue arose under the statutory law of this Commonwealth and that “the General Assembly has not conferred the authority to consider matters of law on the decision-makers of the internal grievance system,” McCray,
For purposes of preliminary objections, I would hold: that Brown has set forth a plausible claim for mandamus relief upon the grounds that DOC exercised its discretion in an arbitrary manner; that, absent a non-arbitrary explanation of the purported security risk, he had a right to possess the DEP records pursuant to the RTKL; and that he had no other adequate remedy by which to access them. As such, we cannot say “with certainty that no recovеry is possible.” Bruno,
Justice Donohue and Justice Dougherty join this dissenting statement.
Notes
. Because Brown's petition for review in the nature of mandamus was dismissed pursuant to DOC's preliminary objections, our standard of review requires that "we accept as true all well-pleaded material facts set forth in the [petition for review] and all inferences fairly deducible from those facts." Kuren v. Luzerne Cty.,
. See Brown v. Pa. Dep’t of Corr.,
. In Stein, the Commonwealth Court held that the corrections officers' first names were exempt from disclosure under the RTKL's personal security exception. See 65 P.S. § 67.708(b)(l)(ii) (exempting from disclosure a record that "would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual”). As such, the Stein court’s statement that, even if it were to hold otherwise, DOC nevertheless could prohibit the inmate’s access to the information, was dictum. See Stein,
. Reproduced verbatim, Brown's stated issues are as follows:
1. Whether mandamus lies to compel an agency’s compliance with the [RTKL]?
2. Whether [the RTKL] provisions sufficiently protect the [DOC] from disclosure of sensitive internal security matter[s] to рrisoners during the RTKL proceedings^] thereby precluding it from confiscating prisoners['] documents obtained from other government agencies via the RTKL?
3. Whether the Commonwealth Court erred in its decision that [Brown] is not entitled to due process property protections as a result of the confiscation of his RTKL materials that were taken pursuant to policy/corrupted process?
4. Whether a legal challenge concerning the propriety of a government agency’s conduct during the RTKL process constitute^] prison condition litigation within the meaning of the [PLRA]?
5. Whether [Brown] should be afforded the opportunity to pay the filing fees in the event this Court reverses . the Commonwealth Court's decision regarding the merits, but affirms its deсision regarding the application of the [PLRA]?
Brief for Brown at 1-2 (capitalization and numbering .modified).
. Parenthetically, pursuant to the RTKL, a requestor’s reasons for seeking access to a public record, as well as the intended uses of a public record, are irrelevant considerations. See 65 P.S. § 67.301(b) ("A Commonwealth agency may not deny a requestor access to a public, record due to the intended use of the public record by the requestor unless otherwise provided by law,”-); 65 P.S. § 67.703 ("A written request need not include any explanation of the requestor’s reason for requesting or intended use of the records unless otherwise required by law.”).
. See generally David N. Wecht, "Breaking the Code of Deference: Judicial Review of Private Prisons,” 96 Yale L.J. 815, 818-22 & accompanying notes (1987) (describing deferential judicial review of prison procedures and wide discretion of prison personnel).