Facts
- Jeffrey Linden filed rule 3.800 motions challenging the legality of his prison releasee reoffender (PRR) sentences, claiming his offenses occurred after release from jail, not from prison [lines="26-27"].
- Linden's convictions and sentences became final in 2016 and 2017, after the period for filing a direct appeal had expired [lines="34-35"].
- The trial courts denied Linden's motions, which prompted him to appeal [lines="10-11"].
- Earlier rulings had established that Linden was not entitled to retroactive benefits from the ruling in State v. Lewars [lines="39-40"].
- The court pointed out that prior appellate decisions confirmed Lewars was not retroactive and failed to provide postconviction relief [lines="51-52"].
Issues
- Did the trial court err in denying Linden’s motions based on his claim that his PRR sentences were illegal due to his offenses occurring after release from jail rather than prison? [lines="26-27"]
- Is the decision in State v. Lewars applicable retroactively to Linden's final sentencing? [lines="89-90"]
Holdings
- The court affirmed the trial court’s denial of Linden's motions, stating that Lewars does not retroactively apply to his sentences [lines="22-23"].
- The ruling emphasized that Lewars constituted an evolutionary refinement of law, not a significant constitutional change; thus, it does not permit retroactive application for postconviction relief [lines="96-107"].
OPINION
Jоseph Page, Petitioner v. Honorable Thomas P. Rogers; Montgomery County District Attorney Michael Toal, III; Secretary of Department of Corrections, Dr. Laurel R. Harry; and Attorney Michael P. Gottlieb, Respondents
No. 164 M.D. 2023
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
August 27, 2024
Submitted: May 7, 2024; BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE MATTHEW S. WOLF, Judge
OPINION BY JUDGE COVEY
On April 13, 2010, Page was sentenced to life in prison plus 40 to 80 years for second degree murder, robbery, burglary, and criminal conspiracy, and is currently incarcerated at the State Correctional Institution at Forest (SCI-Forest).3 See Petition at 3.
On September 10, 2015, Page filed a Post Conviction Relief Act (PCRA)4 petition in the Montgomery County Common Pleas Court (trial court). See Petition App. A (Affidavit/Statement of Facts) at 1. The trial court appointed Attorney Gottlieb as Page‘s PCRA сounsel. See id. At some point thereafter, Attorney Gottlieb filed an application to withdraw as Page‘s counsel and issued a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (Turner Letter)5 in support thereof. See Petition App. A at 1. Despite repeated
On December 10, 2021, Judge Rogers conducted a hearing and granted Page leave to proceed on his PCRA petition pro se, and Page informed Judge Rogers that he still needed his legal documents. See id. On May 31, 2022, SCI-Forest received five boxes of legal documents directed to Page which Attorney Gottlieb provided through the Montgomery County District Attorney‘s office. Id.; see also Petition App. C (Judge Rogers’ February 2, 2023 letter). After making numerous requests to prison staff, and filing a grievance to get his legal documents, SCI-Forest allowed Page to review two of his five boxes of documents. See Petition App. A at 1. At that time, Page learned when he was received a confiscation slip that “thе prison officials” had seized nine compact discs (CDs). Id.
Page lodged a complaint with Judge Rogers concerning SCI-Forest‘s withholding of his remaining legal documents. See id. at 2. On January 13, 2023, Judge Rogers conducted a hearing and, by February 3, 2023 letter to SCI-Forest, copied to Secretary Harry, Judge Rogers requested SCI-Forest‘s assistance in fulfilling Judge Rogers’ obligation to ensure Page has access to all of his legal documents, including the confiscated CDs. See id. at 2; see also Petition App. C
In addition, “at the behest of Chief [L]egal Counsel for the Department[,]” Petition at 9, “prison officials” at SCI-Forest had “removed all of the model form petitions/motions which [SCI-Forest] would provide to assist [Page] in accessing the [c]ourt[s] in a meaningful way,” and “removed law books and other reference materials from the law library (including form motions and petitions) that were previously available . . ..” Petition App. A at 2. Page also felt that his “life and health [were] at risk as the Department . . . [could not] adequately protect [him] from the COVID-19 virus and its varients [sic.]” Id.; see also Petition App. B (newspaper articles recounting inmate deaths related to overcrowding and COVID-19).
Facts
On March 24, 2023, Page, pro se, filed the Petition in this Court‘s original jurisdiction. Therein, Page asserts that his current confinement conditions violate the Eighth Amendment to the United States (U.S.) Constitution‘s (Eighth Amendment)6 ban on cruel and unusual punishment because of SCI-Forest‘s overcrowding and potential COVID-19 exposure.7 See Petition at 5-6. In addition, Page contends that Judge Rogers lacked subject matter jurisdiction over his criminal
On April 24, 2023, Judge Rogers filed Preliminary Objections asserting that the Petition fails to state a valid legal claim against him in his official capacity because Page does not seek any direct relief against him, Judge Rogers has judicial
On April 27, 2023, Attorney Gottlieb filed Preliminary Objections, contending that Page failed to state a valid claim against him because Page doеs not seek any direct relief against him, and because only the trial court - not this Court - has jurisdiction to review Page‘s challenge to Attorney Gottlieb‘s Turner Letter. Attorney Gottlieb filed a brief in support of his Preliminary Objections. On June 6, 2023, Page filed his answer opposing Attorney Gottlieb‘s Preliminary Objections.
On June 8, 2023, Secretary Harry filed Preliminary Objections to the Petition, asserting that Page failed to state a valid legal action against her because: she was not personally involved in the actions he claims violated his constitutional rights and she is not vicariously liable therefor; she is immune from this litigation; Page failed to state a valid First Amendment violation claim against her; Page failed to state a valid Eighth Amendment claim against her; and Page has not alleged any actual injury. Secretary Harry filed a brief in support of her Preliminary Objections. On July 11, 2023, Page filed an answer opposing Secretary Harry‘s Preliminary Objections.
On August 18, 2023, Page filed his brief in opposition to Respondents’ Preliminary Objections, wherein he added that “this action [] is not an illicit ‘second bite at the apple’ as [] Respondents imply, but rather, similar in nature to a federal [action under] Section 1983 [of the Civil Rights Act of 1871 (Section 1983)12]
This matter is now ripe for this Court‘s review.
Discussion
Initially,
“The question presented in a demurrer is whether, on the facts averred, the law indicates with certainty that no recovery is possible. In ruling on preliminary objections in the nature of a demurrer, this Court accepts as true all well-pleaded facts in the [petition for review] and draws all inferences reasonably deducible therefrom in favor of the nonmoving party. Stone & Edwards Ins. Agency, Inc. v. Dep‘t of Ins., 616 A.2d 1060, 1063 (Pa. Cmwlth. 1992). However, we “need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Id. . . .”
Vasquez v. Berks Cnty., 279 A.3d 59, 75-76 (Pa. Cmwlth. 2022).
“When ruling on a demurrer, [this C]ourt must confine its analysis to the [petition for review].” Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010).
“Thus, the [C]ourt may determine only whether, on the basis of the
1. Judge Rogers’ Preliminary Objections
Page contends in the Petition that Judge Rogers lacked jurisdiction over his criminal case and imposed an unlawful sentence. Judge Rogers objects on the basis that the Petition fails to state a valid legal claim against him because: Page does not seek any direct relief against Judge Rogers, other than as part of his general request that all Respondents violated his constitutional rights; “immunity precludes [] claims [against Judge Rogers acting in his judicial capacity;]”13 and “[Page] cannot collaterally attack his criminal case in this Court[.]” Judge Rogers’ Prelim. Objs. ¶ 6. Judge Rogers attached Page‘s criminal docket to his supporting brief14 and argued:
This Court does not have jurisdiction to hold that [Page‘s] sentence is improper or issue any other ruling pertaining to claimed errors in the criminal case. For that reason, [Page‘s] arguments about his sentence must be made in his criminal case, not this collateral matter. Indeed, [Page] has a pending [PCRA] petition in the criminal case.
Judge Rogers’ Br. at 3-4.
This Court has declared:
“[J]udicial immunity requires a two-part analysis: first, whether the judge has performed a judicial act; and second, whether the judge has some jurisdiction over the subject matter before [him].” Langella v. Cercone, 34 A.3d 835, 838 (Pa. Super. 2011) (emphasis added). This Court reasoned: “Judges are absolutely immune from liability for damages when performing judicial acts, even if their actions are in error or performed with malice, provided there is not a clear absence of all jurisdiction over subject matter and person.” Robinson v. Musmanno (Pa. Cmwlth. No. 39 C.D. 2010, filed May 28, 2010), slip op. at 3, . . . (unreported)15 (per curiam) (citing Beam v. Daihl, 767 A.2d 585 (Pa. Super. 2001)). This Court recognizes judicial immunity is not only immunity from damages, but also “immunity from suit.” See Guarrasi v. Scott, 25 A.3d 394, 405 n.11 (Pa. Cmwlth. 2011) (citing Mireles v. Waco, 502 U.S. 9 . . . (1991)) (explaining judicial immunity applied to a common pleas court judge); Logan [v. Lillie, 728 A.2d 995 (Pa. Cmwlth. 1999)] (upholding dismissal of equitable claims seeking declaration that judicial officers’ acts were unconstitutional). As such, judicial immunity is an available defense for declaratory relief. See Guarrasi; Logan, accord Azubuko v. Royal, 443 F.3d 302 (3d Cir. 2006).
Chasan v. Platt, 244 A.3d 73, 81-82 (Pa. Cmwlth. 2020) (footnotes omitted).
Moreover, although Page insists that he is not seeking a second bite at the apple by impermissibly challenging his criminal sentence in this Court, see Page Br. at 6, the Petition belies Page‘s position. Therein, Page questions whether “life without the possibility of parole (death by incarceration) [is] unconstitutional[,] in violation of the Eighth and Fourteenth Amendments and their state constitutional counterparts relative to [] Page specifically[]” (Petition at 4); he declares that he “is arguing [] the severity of a prison sentence” (Petition at 6); and he contends that his “sentence [was] not [] lawfully imposed pursuant to any authorized statute.” (Petition at 8). Page expounds in his brief:
Even assuming [] Page could raise these issues below, it would subject him to the very dangers he seeks to avoid[] and deprive him of the opportunity to raise his claims and have them heard by a Judge and Judges other than [Judge Rogers] who originally violated [Page‘s] rights. Such problems cannot be cured by raising them in the [trial court].
Page Br. at 6-7.
This Court has expressly ruled:
[Inmates] may not collaterally attack their sentences by using a civil action in this Court seeking declaratory and
injunctive relief. See also Guarrasi . . . , 25 A.3d [at] 402 . . . (observing that plaintiff “may not use a civil action for declaratory judgment in our original jurisdiction to collaterally attack the legality of his criminal proceedings” and reiterating that “[t]he PCRA is the sole means by which . . . persons serving illegal sentences may obtain collateral relief“) (internal quotation marks and citations omitted).
Scott v. Pa. Bd. of Prob. & Parole, 256 A.3d 483, 492-93 (Pa. Cmwlth. 2021), aff‘d, 284 A.3d 178 (Pa. 2022).
Page has a PCRA action pending in the trial court. See Petition at 3 (“[Page] incorporates his PCRA petition“); see also Judge Rogers’ Br. at 4. Notwithstanding, “in an effort to invoke [] original jurisdiction, [Page has also] presented [his] sentencing claims in the context of a “Petition for Review in the Nature of a Complaint Seeking Declaratory Judgment and [Preliminary and Permanent] Injunctive Relief.” Scott, 256 A.3d at 491. Thus, Page has “fashioned the Petition in this manner in a thinly veiled attempt to forum shop through pleading, which we will not countenance.” Id. at 492. “[T]his Court has already rejected [] challenge[s] remarkably similar to this one on the basis that it constituted a collateral attack on a criminal sentence.” Id.; see also Hill v. Commonwealth (Pa. Cmwlth. No. 152 M.D. 2008, filed Sept. 26, 2008), 2008 WL 9396706, at *1, ([T]he petitioner‘s “collateral attack on his sentence . . . must be brought under the PCRA and not as a complaint for declaratory judgment and injunctive relief in this Court‘s original jurisdiction.“). Accordingly, Page‘s claims that Judge Rogers’ sentencing order was unlawful is not properly before this Court.17
2. Attorney Gottlieb‘s Preliminary Objections
In the Petition, Page declares that Attorney Gottlieb‘s Turner Letter improperly “exposed not only [] confidential communications,” but also Page‘s litigation strategy and, thus, violated the attorney-client privilege without his consent.18 Petition at 9. Attorney Gottlieb objects on the basis that this Court lacks jurisdiction because Page may only attack his Turner Letter and circumstances surrounding it in the trial court.19
If PCRA counsel seeks to withdraw on the ground that the issues raised by the PCRA petitioner are without merit, he must satisfy the following requirements: he must file a sufficient no-merit letter, send the PCRA petitioner copies of the application to withdraw and no-merit letter, and advise the PCRA petitioner of his right to proceed pro se or with a privately retained attorney.
Commonwealth v. Kelsey, 206 A.3d 1135, 1139 (Pa. Super. 2019) (emphasis added; italics omitted). “The no-merit letter must set forth: [(]1) the nature and extent of counsel‘s review of the case; [(]2) each issue that the petitioner wishes to raise on appeal; and [(]3) counsel‘s explanation of why each of those issues is meritless.” Id. (emphasis added). “[W]hen the PC[R]A court concurs, counsel will be permitted to withdraw[,] and the petitioner may proceed pro se, or by privately retained counsel, or not at all.” Turner, 544 A.2d at 929.
Section 9545(a) of the PCRA clearly mandates: ”Original jurisdiction over a [PCRA] proceeding... shall be in the court of common pleas.”
Page‘s PCRA petition is apparently still pending before the trial court. See Petition аt 3 (“[Page] incorporates his PCRA petition“); see also Judge Rogers’ Br. at 4. Attorney Gottlieb was legally mandated to file a Turner Letter discussing
3. Secretary Harry‘s Preliminary Objections
Page names Secretary Harry as a party in the Petition. However, he does not specify any action or inaction by Secretary Harry that violated his constitutional rights. Broadly reading the Petition, it appears that Page is claiming that SCI-Forest staff, under the direction of, or as supervised by Secretary Harry, has violated his First and Sixth Amendment rights by withholding his legal documents and removing legal form petitions/motions from the law library, and his Eighth Amendment rights based on his unsafe confinement conditions - particularly overcrowding and his COVID-19 exрosure risk.23
Although, as Department Secretary, Secretary Harry is a public officer “responsible, inter alia, for the overall administration and operation of all of [the Department‘s] correctional institutions,” Hackett v. Horn, 751 A.2d 272, 273 n.1 (Pa. Cmwlth. 2000), “pursuant to [a]rticle 1, [s]ection 11 of the Pennsylvania Constitution,25 the General Assembly declared that ‘the Commonwealth, and its officials and employees acting within the scope of their duties, shall . . . enjoy sovereign immunity and official immunity26 and remain immune from suit except as the General Assembly shall specifically waive the immunity.’
The U.S. Supreme Court has warned that it is essential to determine the real party in interest before assessing whether immunity applies because that “dictates what immunities may be available[,]” Lewis v. Clarke, 581 U.S. 155, 163 (2017), and “[i]n making this assessment, courts may not simply rely on the characterization of the parties in the [petition for review], but rather must determine in the first instance whether the remedy sought is truly against the sovereign.” Id. at 162. The U.S. Supreme Court explained:
If ... an action is in essence against a [s]tate even if the [s]tate is not a named party, then the [s]tate is the real party in interest and is entitled to invoke [sovereign immunity] protection. For this reason, an arm or instrumentality of the [s]tate genеrally enjoys the same immunity as the sovereign itself. E.g., Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429-30 . . . (1997). Similarly, lawsuits brought against employees in their official capacity “represent only another way of pleading an action against an entity of which an officer is an agent,” and they may also be barred by sovereign immunity. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (internal quotation marks omitted).
The distinction between individual- and official-capacity suits is paramount here. In an official-capacity claim, the relief sought is only nominally against the official and in fact is against the official‘s office and thus the sovereign itself. Will v. Mich[.] Dep[‘]t of State Police, 491 U.S. 58,
71 . . . (1989); Dugan v. Rank, 372 U.S. 609, 611, 620-22 (1963). This is why, when officials sued in their official capacities leave office, their successors automatically assume their role in the litigation. Hafer [v. Melo], 502 U.S. [21,] 25 [(1991)]. The real party in interest is the government entity, not the named official. See Edelman v. Jordan, 415 U.S. 651, 663-65 . . . (1974). “Personal-capacity suits, on the other hand, seek to impose individual liability upon a government officer for actions taken under color of state law.” Hafer, 502 U.S.[] at 25 . . . (emphasis added); see also id.[] at 27-31 . . (discharged employees entitled to bring personal damages action against state auditor general); cf. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 . . . (1971). “[O]fficers sued in their personal capacity come to court as individuals,” Hafer, 502 U.S.[] at 27 . . ., аnd the real party in interest is the individual, not the sovereign.
. . . . Defendants in an official-capacity action may assert sovereign immunity. Graham, 473 U.S.[] at 167 . . . . An officer in an individual-capacity action, on the other hand, may be able to assert personal immunity defenses, such as, for example, absolute prosecutorial immunity in certain circumstances. Van de Kamp v. Goldstein, 555 U.S. 335, 342-44 . . . (2009). But sovereign immunity “does not erect a barrier against suits to impose individual and personal liability.” Hafer, 502 U.S.[] at 30-31 (internal quotation marks omitted); see Alden v. Maine, 527 U.S. 706, 75 . . . (1999).
Lewis, 581 U.S. at 162-63 (citation italics added).
Moreover, “individual public employees are not vicariously liable for the actions of subordinates merely because the subordinate is in the employee‘s chain of command.” Fauber v. Fetterolf, Harlow & Wetzel (Pa. Cmwlth. No. 1856 C.D. 2013, filed June 18, 2014), slip op. at 6. Thus, “[m]erely being in the ‘chain of command’ does not subject [a public servant manager] to suit on a theory of vicarious responsibility.” Price v. Corr. Officer Simcox (Pa. Cmwlth. No. 307 C.D.
In the instant matter, not only was Secretary Harry not Secretary when it appears Page‘s First and Eighth Amendment claims arose,28 but Page does not specify any basis on which Secretary Harry is personally liable for such alleged violations. While in the Petition Page directs his Eighth Amendment claims against all Respondents, he limits those claims in his appended Affidavit/Statemеnt of Facts to the Department (“[M]y life and health [are] at risk as the Department . . . cannot adequately protect me from the COVID-19 virus and its varients [sic.]”29 Petition App. A at 2). Under these circumstances, Secretary Harry need not invoke personal immunity protection. Moreover, although Page did not include the Department as a party to this action,30 the Department is the real party in interest. Because Page‘s
“Generally, the Commonwealth and its agencies, officials[,] and employees acting within the scope of their duties are immune from suits for damages.”31 Stackhouse v. Pa. State Police, 892 A.2d 54, 58 (Pa. Cmwlth. 2006) (emphasis added). Here, rather than damages, Page requests “a declaration that the acts and/or omissions of [] Respondents violated his rights under the [U.S.] and Pennsylvania Constitutions” and “an injunction . . . to enjoin [SCI-]Forest prison officials to return all his legal boxes and case file documents which are being withheld from him, and to restore model form legal papers and motions to the law library. . . .” Petition at 9 (emphasis added). Thus, Page seeks only declaratory and mandatory injunctive relief.32
This Court has ruled that although, in addition to damages, “sovereign immunity bars claims seeking mandatory injunctions to compel affirmative action
by Commonwealth officials,”33 Stackhouse, 892 A.2d at 61; see also Firearms Owners Against Crime - Inst. for Legal, Legislative & Educ. Action v. Evanchick, 291 A.3d 507 (Pa. Cmwlth. 2023), “[t]o the extent that [Page] seek declarations regarding [Secretary Harry‘s] duties, and [his] right to certain benefits . . . , [his] claim[s are] not barred by sovereign immunity.” Firearms Owners, 291 A.3d at 515. Accordingly, although she is immune from the mandatory injunctive relief Page requests,34 Secretary Harry could be liable relative to Page‘s declaratory judgment claims to the extent he states valid constitutional violations.b. First Amendment Claims
Page asks this Court for a declaration that SCI-Forest staff and, thus, Secretary Harry, violated his constitutional rights by withholding boxes of his legal mail.35 Under the First Amendment, “prisoners have the constitutional right to
This Court acknowledges that “[alt]hough ‘confinement and the needs of the penal institution impose limitations on constitutional rights[,]’ Jones v. [N.C.] Prisoners’ Lab[.] Union, Inc., 433 U.S. 119, 125 . . . (1977), . . . ‘incarceration does not divest prisoners of all constitutional protections.’ Shaw v. Murphy, 532 U.S. 223, 228 . . . (2001).” Nunez v. Blough, 283 A.3d 413, 423 (Pa. Cmwlth. 2022). Relevant to Secretary Harry‘s purported interference with Page‘s legal mail, Section 3 (Personal Property, Cell Contents, and Contraband), subsection B (Accumulation of Items - Cell Content Limitations) of Department Policy DC-ADM 815 states, in relevant part:
1. An inmate in general population is permitted storage space equal to four records center boxes. This space may consist of four records center boxes or one footlocker and two records center boxes. In a cell with a built-in, or freestanding storage cabinet, the inmate is permitted to use that space and either two records center boxes or one footlocker.
. . . .
6. Any item(s) in the inmate‘s possession that is not included in Subsection B. [] will be considered contraband in accordance with Subsection C. below [(relating to contraband)].
. . . .
11. The Facility Manager may permit an inmate to maintain extra storage boxes for legal materials for active cases:
a. the only legal material permitted will be cоurt filings, transcripts, notes of testimony, and notes
prepared by the inmate.36 This does not include reference materials, books, or photocopied cases; b. excess legal materials will be stored in a separate box marked “Legal Materials Only;”
c. the inmate must send a DC-135A, Inmate Request to Staff Member, to the Facility Manager/designee requesting permission to maintain extra storage boxes for legal materials. The DC-135A must describe the legal materials defined in Subsection B.11.a. above; and
d. if approved by the Facility Manager/designee, a copy of the DC-135A shall be forwarded to the Property Officer; the number of boxes permitted and a brief description of the contents shall be noted on the inmate‘s DC-153.
12. An inmate may not exceed the property limits established by the Department. Excess property, as determined by the Facility Manager/designee, may be shipped out at the inmate‘s expense or destroyed. If an inmate has accumulated excess property prior to transfer to another Department facility or release, the sending facility shall ensure that the excess property is shipped out at the inmate‘s expense or destroyed, prior to the inmate‘s transfer.
DC-ADM 815 at 3-2 - 3-4 (emphasis added; original bold emphasis omitted).37
Although “due process requires that an inmate must be afforded access to the courts in order to challenge unlawful convictions and violations of his constitutional rights[,]” this Court has determined that the Department‘s policies limiting the volume of materials, including legal documents, that each inmate may
Moreover, the Hackett Court 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, Zilich v. Lucht, 981 F.2d 694, 695 (3d Cir.1992), 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. Oliver v. Fauver, 118 F.3d 175, 177-78 (3d Cir.1997). The [U.S.] Supreme Court has defined actual injury as the loss or rejection of a nonfrivolous legal claim regarding the sentencing or the conditions of confinement. Lewis v. Casey, 518 U.S. 343 . . . (1996).
Hackett, 751 A.2d at 275-76 (emphasis added) (quoting Robinson v. Ridge, 996 F. Supp. 447, 449 (E.D. Pa. 1997), aff‘d, 175 F.3d 1011 (3d Circ. 1999)).
Page also asks this Court for a declaration that SCI-Forest staff and, thus, Secretary Harry, violated his rights to accеss to the courts by removing legal books and model legal forms from the law library.39 In Bounds v. Smith, 430 U.S. 817 (1977), the U.S. Supreme Court held that “the fundamental constitutional right
This Court has summarized:
The [U.S. Supreme] Court in Bounds noted that it has “consistently required [s]tates to shoulder affirmative obligations to assure all prisoners meaningful access to the courts.” [Id.] at 824 . . . [T]he Court pointed out that prison authorities may consider economic factors in determining the extent of these provisions and/or the “methods used to provide meaningful access.” [Id.] at 825 . . . .
Moreover, this right of access was somewhat restricted by the [U.S. Supreme] Court‘s later decision in Lewis . . . , wherein the [U.S. Supreme C]ourt held that an inmate was required to establish actual injury, i.e., the shortcomings of the prison authority . . . hindered the inmate‘s efforts to pursue a legal clаim. Additionally, the [U.S. Supreme] Court in Lewis indicated that this injury requirement is not satisfied by any type of frustrated legal claim, but only by claims relating to direct appeals from criminal convictions involving incarceration, habeas petitions[,] and civil rights actions under [Section] 1983 to vindicate basic constitutional rights.
Further, the [U.S. Supreme] Court in Lewis reiterated that ”Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims.” Lewis, 518 U.S. at 355 . . . . Rather, the [U.S. Supreme] Court indicated that Bounds merely requires the prison authorities to provide inmates with the tools they need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement.
Here, Page merely declares that the Department‘s legal document limitation policy and lack of law library forms “prejudices his ability to bring his pro se PCRA matters before the [trial court] and [Judge] Rogers in any meaningful way.” Petition at 9. Because he has not alleged an actual injury, this Court concludes that he has failed to state a legally valid claim for denial of access to the courts, either because SCI-Forest staff/Secretary Harry has withheld his legal documents or because the SCI-Forest staff/Secretary Harry removed legal form petitions/motions from the law library.
c. Eighth Amendment Claim
Page also asks for a declaration from this Court that SCI-Forest staff and, thus, Secretary Harry, violated his Eighth Amendment rights relative to overcrowding and potential COVID-19 exposure. Page specifically alleges in the Petition:
2. [] Page is virtually defenseless against [the COVID-19] virus which has morphed into variants due to cramped quarters, where overcrowding in Pennsylvania prisons make it impossible to socially[]distance from others.
3. Per “fireside chats“: former Secretary Oberlander ([SCI-Forest]) informed [Page] that numerous inmates at [SCI-Forest][] have died from the deadly disease.
4. There is an extant and undeniable risk to [Page‘s] overall health. [] Page is being pyschologically [sic] injured and exposed to serious harm where prison overcrowding has deprived him of the basic human need of safety.
5. [] Respondents know that there exists this overcrowding, yet have not responded reasonably. In summary, [Page] is subjected to living conditions which
have caused and is causing anxiety, fear[,] and emotional distress at the thought of dying in prison from a disease he cannot protect himself from [sic].
Petition at 5-6 (emphasis added).
The Eighth Amendment “imposes duties on [prison] officials . . . [to] provide humane conditions of confinement[,] . . . [i.e., they] must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of the inmates[.]’ Hudson, 468 U.S. [at] 526-27 . . . .” Farmer v. Brennan, 511 U.S. 825, 832 (1994). In Farmer, the U.S. Supreme Court observed:
[A] prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, “sufficiently serious,” Wilson [v. Seiter], 501 U.S.[ 294], []298 . . . [(1991)]; see also Hudson v. McMillian, . . . 503 U.S.[ 1,] 5 . . . [(1992)]; a prison official‘s act or omission must result in the denial of “the minimal civilized measure of life‘s necessities,” Rhodes[ v. Chapman,] . . . 452 U.S.[ 337,] 347 . . . [(1981)]. For a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm. See Helling [v. McKinney,] . . . , 509 U.S.[ 25,] 35 [(1993)] . . . .
The second requirement follows from the principle that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” Wilson, 501 U.S.[] at 297 . . . (internal quotation marks, emphasis, and citations omitted). To violate the [Eighth Amendment], a prison official must have a “sufficiently culpable state of mind.” [Id.]; see also id.[] at 302-[]03 . . . [;] Hudson . . . 503 U.S.[] at 8 . . . . In prison-conditions cаses that state of mind is one of “deliberate indifference” to inmate health or safety, Wilson, 501 U.S.[] at 302-[]03 . . . [;] see also Helling . . .; Hudson . . .; Estelle [v. Gamble], . . . 429 U.S.[ 97,] 106 [(1976)].
Regarding the objective requirement, “[a] substantial risk of serious harm is one in which the risk is ‘so great that it is almost certain to materialize if nothing is done.‘” Horan v. Newingham (Pa. Cmwlth. No. 2622 C.D. 2015, filed Oct. 24, 2016), slip op. at 16 (quoting Delgado v. Stegall, 367 F.3d 668, 672 (7th Cir. 2004)). This Court has recognized that the objective element of the Eighth Amendment confinement conditions claims can be met relative to COVID-19 because it is a very contagious virus that creates an objectively serious risk to inmate health or safety. See Brooks. Here, however, Page asserts nothing more in the Petition than that Secretary Harry has not reasonably responded to the COVID-19 risk to inmates.40 Page has not specified whether and how SCI-Forest staff/Secretary Harry violated the Department‘s COVID-19 protocols.
The second, subjective, element
[r]equire[s] the demonstration of a state of mind akin to criminal recklessness, and . . . a prisoner must establish that[] (i) the prison official knew of and disregarded an excessive risk to inmate health or safety; (ii) the prisоn official was aware of facts from which an inference could be drawn that a substantial risk of serious harm exists; and (iii) the prison official drew the inference. [Farmer,] 511 U.S. at 837, 840 . . . .
This Court acknowledges that Page need not allege that he has been harmed. See Helling, 509 U.S. at 33 (“[T]he Eighth Amendment protects against future harm to inmates[.]“); see also Brooks, slip op. at 9 (quoting Tindell, 87 A.3d at 1039) (regarding COVID-19, “[t]he alleged medical need does not necessarily need to be current, ‘but may result from a condition of confinement that is sure to or very likely to pose an unreasonable risk of serious damage to future health‘“). Moreover, this Court does not take lightly Page‘s claims that he felt unsafe when confined in close quarters during the COVID-19 pandemic. However, “[w]hile we can empathize with [Page‘s] concerns about exposure to COVID-19, which are certainly heightened in a prison and in other congregate settings, concerns arising from COVID-19 are ones with which society at large is grappling.” Pittman v. Commonwealth (Pa. Cmwlth. No. 476 M.D. 2022, filed Jan. 2, 2024), slip op. at 14.
Further,
[i]ncidence of disease or infection in densely populated residence situations such as prisons, standing alone, does not necessarily constitute unconstitutional confinement conditions. See Shepherd v. Dallas Cnty., 591 F.3d 445, 454 (5th Cir. 2009) (“[I]solated examples of illness, injury, or even death, standing alоne, cannot prove that conditions of confinement are constitutionally inadequate. Nor can the incidence of diseases or infections, standing alone, imply unconstitutional confinement conditions, since any densely populated residence may be subject to outbreaks.“). Further, as the [U.S.] Supreme Court . . . has explained:
[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted. A prison official‘s duty under the Eighth Amendment is to ensure “reasonable safety,” a standard that incorporates due regard for prison officials’ unenviable task of
keeping dangerous men in safe custody under humane conditions. Whether one puts it in terms of duty or deliberate indifference, prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause [of the Eighth Amendment].
Farmer, 511 U.S. at 844-45 (internal citations and some quotation marks omitted).
Here, assuming the objective prong to establish a deliberate indifference claim is satisfied, . . . [Page] cannot satisfy the subjective prong. The Petition does not contain allegations demonstrаting that [Secretary Harry] disregarded the risk to inmate health and safety presented by COVID-19. On the contrary, . . . [t]hroughout the Petition, [Page] expresses dissatisfaction with the extent and efficacy of [Respondents‘] efforts, but does not allege that [anyone] ignored appreciated risks of harm presented by COVID-19.
Given the unique circumstances presented by the worldwide spread of the COVID-19 pandemic, the Petition fails to allege facts suggesting that [Secretary Harry] responded unreasonably to the unprecedented situation or subjectively disregarded an excessive risk to inmate health so as to support a deliberate indifference claim under the Eighth Amendment . . . . See Swain v. Junior, 961 F.3d 1276, 1289 (11th Cir. 2020) (“We simply cannot conclude that, when faced with a perfect storm of a contagious virus and the space constraints inherent in a correctional facility, the defendants here acted unreasonably by ‘doing their best.‘“).
Pew v. Wetzel (Pa. Cmwlth. No. 328 M.D. 2022, filed July 21, 2023), slip op. at 6-7 (emphasis added; footnote omitted). Accordingly, Page fails to state a legally viable Eighth Amendment claim against Secretary Harry.
Because Page has failed to state First Amendment and Eighth Amendment actions against Secretary Harry upon which relief may be granted, this Court sustains Secretary Harry‘s Preliminary Objections.
Page requests that this Court grant him leave to amend the Petition in the event it sustains Respondents’ Preliminary Objections.41 See Petition at 10; see also Page Br. at 5.
Based on the foregoing, accepting as true all well-pleaded facts in the Petition and drawing all inferences reasonably deducible therefrom in favor of the nonmoving party (i.e., Page), as this Court must, “the law indicates with certainty that no recovery is possible” from Judge Rogers, Attorney Gottlieb, and/or Secretary Harry. Vasquez, 279 A.3d at 75. Therefore, Respondents’ Preliminary Objections are sustained, and Page‘s Petition is dismissed as to them. Page‘s Motion to Compel Answer is denied as moot. This litigation will proceed only as to Montgomery County District Attorney Michael Toal, III.
ANNE E. COVEY, Judge
Joseph Page, Petitioner
v. : No. 164 M.D. 2023
Honorable Thomas P. Rogers; Montgomery County District Attorney Michael Toal, III; Secretary of Department of Corrections, Dr. Laurel R. Harry; and Attorney Michael P. Gottlieb, Respondents
ORDER
AND NOW, this 27th day of August, 2024, the Honorable Thomas P. Rogers’ (Judge Rogers), Attorney Michael P. Gottlieb‘s, and the Department of Corrections Secrеtary Dr. Laurel R. Harry‘s Preliminary Objections to Joseph Page‘s (Page) Petition for Review (Petition) are SUSTAINED. Page‘s Petition is DISMISSED as to those Respondents only. Page‘s Motion to Compel Answer is denied as MOOT.
This litigation shall proceed only against Montgomery County District Attorney Michael Toal, III, who shall file a responsive pleading within 30 days of the date of this Order.
ANNE E. COVEY, Judge
Notes
Id. at 275. The Hackett Court acknowledged that the policy did not prevent the inmate from exchanging one box of legal materials for another whenever necessary. See id. Page concedes that SCI-Forest staff has allowed him to review two of his five boxes of legal documents.If the inmates were allowed to keep as much material as desired, an obvious fire hazard would be created. This is especially true where inmates are locked in their cells.
Moreover, an excessive amount of material in the cell provides an opportunity to hide contraband, including weapons and drugs. By limiting the amount of materials inmates may keep in their cells, the prison authorities are better able to insure the safety of the facility.