          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William Mayo,                          :
                     Appellant         :
                                       :
             v.                        :   No. 448 C.D. 2018
                                       :   Submitted: September 14, 2018
Michael Haines                         :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                 FILED: February 7, 2019

             William Mayo (Mayo), pro se, appeals an order of the Fayette County
Court of Common Pleas (trial court), which dismissed Mayo’s complaint seeking a
writ of mandamus directing correctional officer Sergeant Michael Haines (Haines)
to cease chewing tobacco while serving food trays. The trial court held that Mayo’s
complaint was frivolous under Section 6602(e) of the act commonly known as the
Prison Litigation Reform Act (PLRA), 42 Pa. C.S. §6602(e). For the reasons to
follow, we affirm.
             Mayo is presently incarcerated at the State Correctional Institution
(SCI) at Smithfield. The allegations in his underlying complaint relate to an incident
that occurred while he was incarcerated at SCI-Fayette in the Restricted Housing
Unit (RHU). The complaint alleged that on May 3, 2017, Haines was chewing
tobacco while he and another correctional officer were distributing dinner trays to
inmates in the RHU. Mayo observed Haines spit the chewing tobacco into a trashcan
in front of Mayo’s cell.
                Mayo alleged that Haines’ act of chewing and spitting tobacco while
serving dinner trays was inhumane and violated the RHU handbook and a
Department of Corrections’ (Department) policy related to food service. Complaint
at 2, ¶5. In his complaint, Mayo sought an order directing Haines to “stop chewing
tobacco[] while serving the trays[.]” Complaint at 5. In addition, Mayo sought
punitive and nominal damages.
                In response to the complaint, Haines filed preliminary objections in the
nature of a demurrer contending that Mayo failed to state a legally cognizable claim.
Haines stated that the Department’s policies, which were the bases of Mayo’s claim,
applied to inmates, not staff. Additionally, Haines argued that the complaint did not
show that Mayo had a clear right to relief.
                On March 1, 2018, the trial court dismissed Mayo’s complaint pursuant
to Section 6602(e) of the PLRA, 42 Pa. C.S. §6602(e). Under Section 6602(e) of
the PLRA, a trial court shall dismiss prison conditions litigation at any time if it
determines, inter alia, that the litigation is “frivolous or malicious or fails to state a
claim upon which relief may be granted….” 42 Pa. C.S. §6602(e)(2).1 The PLRA

1
 The PLRA provides for “the manner in which prisoners can engage in prison conditions litigation,
setting forth, inter alia, the definitions of such litigation, the filing fees to be paid, and the ability
of a trial court to dismiss such litigation for various reasons.” Lopez v. Haywood, 41 A.3d 184,
186 (Pa. Cmwlth. 2012). Section 6602(e) of the PLRA states, in full:
         (e) Dismissal of litigation.--Notwithstanding any filing fee which has been paid,
         the court shall dismiss prison conditions litigation at any time, including prior to
         service on the defendant, if the court determines any of the following:
                 (1) The allegation of indigency is untrue.
                 (2) The prison conditions litigation is frivolous or malicious or
                 fails to state a claim upon which relief may be granted or the
                 defendant is entitled to assert a valid affirmative defense, including
                 immunity, which, if asserted, would preclude the relief.
         The court may reinstate the prison conditions litigation where the dismissal is based
         upon an untrue allegation of indigency and the prisoner establishes to the
         satisfaction of the court that the untrue information was not known to the prisoner.
                                                    2
defines “frivolous” as “[l]acking an arguable basis in either law or in fact.” 42 Pa.
C.S. §6601. The trial court dismissed Mayo’s complaint as frivolous because the
policies on which Mayo relied to support his claim governed only inmate conduct
and did not apply to correctional officers. Further, Mayo did not allege that he was
injured in any way by Haines’ actions. Mayo filed a notice of appeal on April 2,
2018.
               On appeal,2 Mayo argues that the trial court erred in dismissing his
complaint. Mayo contends the Department’s policy related to food service prohibits
tobacco in any areas where food is served.
               Mandamus is an extraordinary writ that is available to compel
performance of a ministerial duty where there exists: (1) a clear legal right in the
plaintiff; (2) a corresponding duty in the defendant; and (3) the lack of any other
adequate and appropriate remedy. Banks v. Department of Corrections, 759 A.2d
432, 433 (Pa. Cmwlth. 2000). “Mandamus is not used to direct the exercise of
judgment or discretion of an official in a particular way.” Clark v. Beard, 918 A.2d
155, 159 (Pa. Cmwlth. 2007).
               This Court has held that, “[i]n general, allegations that the Department
failed to follow its regulations or internal policies cannot support a claim based upon
a vested right or duty because these administrative rules and regulations, unlike
statutory provisions, usually do not create rights in prison inmates.” Shore v.
Department of Corrections, 168 A.3d 374, 386 (Pa. Cmwlth. 2017). See also
Rawlings v. Wetzel (Pa. Cmwlth., No. 562 M.D. 2016, filed October 20, 2017), slip


42 Pa. C.S. §6602(e).
2
  In reviewing the trial court’s decision, we must determine whether constitutional rights have been
violated, the trial court abused its discretion, or the trial court committed an error of law. Bailey
v. Wakefield, 933 A.2d 1081, 1083 n.4 (Pa. Cmwlth. 2007).
                                                 3
op. at 7 (unreported)3 (“[A] failure to comply with prison policy is not a basis for a
cause of action.”). This precedent reflects the axiom that administrative policies do
not create enforceable rights in inmates. Bullock v. Horn, 720 A.2d 1079, 1082 n.6
(Pa. Cmwlth. 1998).
               Here, Mayo’s allegation that Haines failed to follow the Department’s
internal policy on food service cannot form the basis for his cause of action.4 Stated
otherwise, Mayo failed to establish the clear legal right necessary to obtain
mandamus relief. Accordingly, the trial court did not err in dismissing his complaint
as frivolous under Section 6602(e)(2) of the PLRA.
               Mayo argues that Haines’ act of chewing and spitting tobacco around
his food is unsanitary and inhumane because some of the “tobacco spit came in
contact with [his] food.” Mayo’s Brief at 4, 10; see also Complaint, Exhibit C at 2.
Mayo explains that witnessing Haines’ conduct rendered Mayo unable to eat and
caused him to lose weight. However, Mayo does not expressly raise a claim under
the Eighth Amendment to the United States Constitution.5 We infer, nevertheless,
that he intended to request a writ of mandamus to compel Haines to comply with the
Eighth Amendment. See also Mayo’s Brief at 10 (stating “food is one of the most
basic necessities of life protected by the Eighth Amendment”).
               Prison officials have a duty to provide humane conditions of
confinement, in that they must ensure that inmates receive adequate food, clothing,
shelter and medical care. Neely v. Department of Corrections, 838 A.2d 16, 20 (Pa.


3
  An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for
its persuasive value[.]” 210 Pa. Code §69.414(a).
4
    Notably, the Department’s food service policy states, in pertinent part, that, “[t]his policy does
not create rights in any person….” Complaint, Exhibit E.
5
   The Eighth Amendment prohibits the government from inflicting “cruel and unusual
punishments.” U.S. CONST. amend. VIII.
                                                  4
Cmwlth. 2003).         To establish an Eighth Amendment claim based on prison
conditions, this Court has stated that:
               an inmate “must satisfy both an objective and subjective test.”
               Allah v. Ricci, 532 Fed. Appx. 48 (3d Cir. 2013). Under these
               requirements, an inmate must demonstrate that the deprivation
               he alleges is “sufficiently serious” and that the correctional
               institution has deprived him of “minimal civilized measure of
               life’s necessities.” Id. at 51. Furthermore, an inmate must also
               demonstrate that the conditions under which he is confined pose
               a substantial risk of harm and that the officials who have
               allegedly deprived the inmate of such necessities did so with a
               sufficiently culpable state of mind and acted with deliberate
               indifference to the inmate’s health or safety. Id.

Thomas v. Corbett, 90 A.3d 789, 797 (Pa. Cmwlth. 2014).
               Mayo’s complaint did not allege that he was deprived of any of the
minimal necessities of human life, such as food, shelter or medical care. It did not
allege that he received food that was contaminated with spit, tobacco or any foreign
substance.6 In short, it did not allege that he suffered an injury. Accordingly, we
conclude that Mayo failed to state a claim under the Eighth Amendment and the trial
court properly dismissed his claim as frivolous.
               For all of these reasons, we affirm the trial court’s order.


                                         _____________________________________
                                         MARY HANNAH LEAVITT, President Judge




6
  In his brief, Mayo states that “if a food tray is distributed (without a lid on it) and staff spit
chewing tobacco in a garbage can that[’]s placed (just inches away from a cell) seconds prior to
passing out the trays [it] is unconceivable [sic] to believe that none of the tobacco spit came in
contact with the food[.]” Mayo’s Brief at 4. Mayo did not raise these allegations in his complaint;
therefore, this Court will not consider these allegations on appeal.
                                                 5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William Mayo,                       :
                  Appellant         :
                                    :
            v.                      :   No. 448 C.D. 2018
                                    :
Michael Haines                      :


                                  ORDER

            AND NOW, this 7th day of February, 2019, the order of the Fayette
County Court of Common Pleas dated March 1, 2018, in the above-captioned matter
is AFFIRMED.
                                _____________________________________
                                MARY HANNAH LEAVITT, President Judge
