            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Darnell Thomas,                             :
                           Petitioner       :
                                            :
                    v.                      :   No. 617 M.D. 2018
                                            :   Submitted: June 7, 2019
Pennsylvania Department of                  :
Corrections, Corrections Officer B.         :
Shaffer, Lt. M. Thomas, Capt.               :
Bradley Sheeder, Capt. Harding, and         :
Hearing Examiner Frank Nunez, in            :
their individual and official capacities,   :
                           Respondents      :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                            FILED: November 22, 2019


      Before this Court in its original jurisdiction are the preliminary objections
(POs) of the Pennsylvania Department of Corrections (DOC), and Corrections
Officer B. Shaffer (CO Shaffer), Lt. M. Thomas (Lt. Thomas), Capt. Bradley
Sheeder (Capt. Sheeder), Capt. Harding, and Hearing Examiner Frank Nunez
(Hearing Examiner) (collectively, Employee Respondents) to the Petition for
Review (Petition) filed by Darnell Thomas, who is currently incarcerated within
DOC. In the Petition, Thomas avers that, while he was incarcerated at the State
Correctional Institution at Pine Grove (SCI-Pine Grove), Employee Respondents
were responsible for violating a number of Thomas’s constitutional rights, including
his rights to due process and to be free from cruel and unusual punishment under the
Eighth and Fourteenth Amendments to the United States Constitution.1 (Petition
¶ 11.)

         I.    The Petition
         The Petition alleges the following. CO Shaffer is a corrections officer
employed at SCI-Pine Grove who “was assigned to administer, collect, post, and
retrieve the results of[] urinalysis[] tests.” (Id. ¶ 3.) Lt. Thomas, Capt. Sheeder, and
Capt. Harding are security officers at SCI-Pine Grove. (Id. ¶¶ 4-6.) Capt. Sheeder
directly supervises Lt. Thomas. (Id. ¶ 19.) Hearing Examiner is employed as a
hearing examiner at SCI-Pine Grove. (Id. ¶ 7.) Because they were all employed by
SCI-Pine Grove, Employee Respondents were “operating under the color of state
law at all times relevant.” (Id. ¶ 10.)
         On September 20, 2017, CO Shaffer required Thomas to provide a urine
sample, Thomas did so in a video monitored cell located in SCI-Pine Grove’s
medical annex, and this area is subject to additional surveillance and observation.
(Id. ¶ 13.) Pending the results of the urine test, Thomas was placed in Administrative
Custody. (Id. ¶ 14.) Nine days later, CO Shaffer issued a misconduct against
Thomas, which referenced a positive urine test result; a copy of the misconduct is
attached to the Petition. (Id. ¶ 15.) In the misconduct report, CO Shaffer indicates
that he was the lone administrator of Thomas’s urine test and does not mention any
other witnesses or participants except for a consulting prison nurse. (Id.) However,

         1
           The Eighth and Fourteenth Amendments to the United States Constitution, respectively,
state, in relevant part, that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted” “nor shall any State deprive any person of life, liberty,
or property, without due process of law.” U.S. CONST., amends. VIII, XIV, § 1. Although Thomas
references article I, section 1 of the Pennsylvania Constitution in paragraph 11 of the Petition, he
does not allege how this provision was violated.


                                                  2
“[u]pon information and belief, the urinalysis result in this matter was obtained by
. . . [Lt.] Thomas in his capacity as security officer,” “he is the designated person to
receive same,” and he was “the individual whom [sic] supplied the report to”
Hearing Examiner. (Id. ¶ 19.) Hearing Examiner held hearings on this misconduct
report on October 3 and 5, 2017, at which CO Shaffer did not appear. (Id. ¶ 16.)
Hearing Examiner’s Report is attached to the Petition. (Id.) During the hearings,
Thomas asked to review the urinalysis report and the video footage from the medical
annex where the urine test was given, but was not provided an opportunity to do so
because, per Capt. Harding’s testimony, the video footage “did not exist.” (Id. ¶¶ 18,
20.) Following the hearings, Hearing Examiner found that Thomas had “ingested a
dangerous or controlled substance [(synthetic cannabinoids or K2)] based solely on
. . . [CO] Shaffer’s misconduct report,” found Thomas guilty, and, as punishment,
removed Thomas from the general population and gave Thomas 30 days’
confinement in Disciplinary Custody. (Id. ¶¶ 17, 20.) Thomas appealed the
misconduct, which was denied at every step. (Id. ¶ 21; Appeal Exs.) In those
appeals, Thomas asserted a different corrections officer obtained a second urine test
from Thomas, left the room without sealing the sample, was outside of Thomas’s
view for a period of time, returned to the room, and then sealed the sample. (Petition,
Appeal Exs.)
      Thomas “was shocked that the result was positive for any substance as he had
not done any act which could have caused such a result.” (Id. ¶ 22.) Accordingly,
Thomas avers that his result was either tampered with, adulterated, or
“miscollected,” and argued this at his hearing and in his appeals. (Id. ¶ 23.) He
contends “he has developed specific and credible information which explains the
urinalysis failure,” namely that he contacted the testing company which indicated



                                           3
that it had “never received, tested[,] nor sent results for any sample from” Thomas.
(Id. ¶¶ 24-25.) Thomas will file this proof with the Court, but had it sent elsewhere
for fear that he would suffer “further reprisal” if it had been sent to the prison. (Id.
¶ 25.)
         Thomas contends the reason Hearing Examiner, “and others,” would not let
him examine the lab report reflecting the alleged positive result is that the lab report
did not exist and/or was fabricated. (Id. ¶ 26.) When Thomas asserted his claims to
DOC’s Office of Special Investigations and Intelligence, an investigation was
opened, and that office contacted SCI-Pine Grove. Thereafter, “unknown actors in
. . . SCI-Pine Grove did FAX [sic] a copy of [the] misconduct Report with a copy of
a positive lab report counterfeited to include [Thomas’s] information” which
resulted in the cessation of any further investigation into the matter. (Id. ¶ 26.)
         Thomas asserts that, as a direct result of these actions, he did not receive
adequate medical treatment on two occasions – one related to a seizure and the
second to a severe electrical burn. (Id. ¶ 27.) With regard to the seizure, Thomas
maintains that the seizure was so severe that he had to be taken to the local hospital
but that he has not received any follow-up care to determine the cause of the seizure.
(Id. ¶ 27a.) As for the electrical burn, Thomas contends it was serious enough to
change his skin color while medical staff watched and that, despite his complaints
of pain, the only treatment he received at the time was the staff taking a picture and
questioning him about possible drug use. (Id. ¶ 27b.) While he was initially taken
to the medical annex, where he was subjected to another urinalysis test, he was
released untreated. (Id.) Six days later, after the pain in his leg had worsened, he
was taken to the medical annex for treatment, was placed on a burn protocol, and
received treatment over the next two weeks. (Id.) Thomas further alleges his mail



                                           4
has been subject to delay and investigation since he has filed his legal actions. (Id.
¶ 28.)
         Based on these facts, Thomas avers the following: (1) DOC and Employee
Respondents have violated his due process rights because, at the hearing, Thomas
was not allowed to see or challenge the urinalysis report, if that report was even in
Hearing Examiner’s possession (id. ¶ 29); (2) his due process rights were further
violated by Employee Respondents “manufacturing or otherwise pretending a
positive drug test result existed when one did not” (id. ¶ 30); (3) DOC and Employee
Respondents were on notice that due process requires a fair hearing and that
manufacturing evidence would violate this requirement (id. ¶ 31); (4) Hearing
Examiner violated Thomas’s constitutional rights by not holding a fair hearing and
not following due process where there was no reason not to provide Thomas with
the urinalysis report’s results (id. ¶ 32); and (5) Thomas “is entitled to adequate and
timely medical care and [Employee] Respondents[’] actions have caused medical
staff to delay, or wit[h]hold, needed medical treatment(s),” (id. ¶ 33). Through these
actions, Thomas avers, DOC and Employee Respondents have: “intentionally
inflicted emotional distress upon him”; created a stigma against him and he is
considered a drug addict and/or a drug dealer, which results in additional
investigations of him; caused his professional license renewal fee not to be paid
resulting in his license becoming in arrears and his being in bad standing with the
Department of State, Bureau of Occupational Affairs; caused him to lose his skilled
position due to the non-renewal of his license; and caused him to have increased
custody levels, lose the ability to have contact visitation, and lose credit toward a
transfer to a different prison. (Id. ¶¶ 34-37.) Thomas alleges Employee Respondents




                                          5
were aware that their actions would result in the above-referenced events, which
reflects their “malicious intent.” (Id. ¶ 37.)
      As relief, Thomas requests that his prison job, pay grade, and professional
licensure be fully restored and he be paid lost wages. (Id. ¶ 38.) He asks that the
erroneous and/or fabricated information be removed from his files. (Id. ¶ 39.)
Thomas argues he is entitled to compensation for his losses “in an unliquidated
amount to be determined at trial.” (Id. ¶ 41.) Further, he seeks punitive damages as
Employee Respondents’ actions, whether they conspired or acted alone, were
intentionally outrageous and were performed with clear purpose. (Id. ¶ 42.) Thomas
ends with asking for an injunction against the DOC, and its sub-offices and officers,
prohibiting any retaliatory action against him in any way. (Wherefore Clause.)

      II.      Preliminary Objections and Answer
      DOC and Employee Respondents filed POs to the Petition, asserting2 Thomas
has failed to state claims upon which relief can be granted because the Petition:
(1) lacks sufficient details regarding the alleged violation of the Eighth Amendment
and fails to connect those allegations to any of Employee Respondents, who are not
medical staff; (2) fails to state a due process claim related to how the institutional
hearing on his misconduct was held; (3) fails to sufficiently allege a claim for
interference with Thomas’s mail; and (4) does not specifically allege the personal
involvement in the constitutional violations by CO Shaffer, Lt. Thomas, Capt.
Sheeder, and Capt. Harding. Thomas filed an Answer responding to each contention
set forth in the POs and denying the ultimate conclusions of each PO. In his
Memorandum of Law in Opposition to the POs (Brief), Thomas includes numerous
additional factual averments and exhibits in response to the deficiencies asserted in

      2
          We have rearranged the arguments for ease of resolution.


                                                6
the POs, as well as a claim that his legal mail and access to the courts were being
delayed and interfered with in retaliation for his seeking legal redress. We now
address each demurrer.

      III.   Analysis
      A. Standard for Reviewing POs in the Nature of a Demurrer
      “[P]reliminary objections in the nature of a demurrer require the court to
resolve the issues solely on the basis of the pleadings.” Cardella v. Pub. Sch. Emps.’
Ret. Bd., 827 A.2d 1277, 1282 (Pa. Cmwlth. 2003). “In ruling on preliminary
objections, the Court must accept as true all well pleaded allegations of material fact
as well as all of the inferences reasonably deducible from the facts pleaded.” Smith
v. Pa. Emps. Benefit Tr. Fund, 894 A.2d 874, 881 (Pa. Cmwlth. 2006). However,
we are “not bound by legal conclusions, unwarranted inferences from facts,
argumentative allegations, or expressions of opinion encompassed in the petition for
review.” Highley v. Dep’t of Trans., 195 A.3d 1078, 1082 (Pa. Cmwlth. 2018). To
sustain preliminary objections, “it must appear with certainty that the law will permit
no recovery, and any doubt must be resolved in favor of the non-moving party by
refusing to sustain the objections.” Smith, 894 A.2d at 881.

      B. Failure to State an Eighth Amendment Claim
      DOC and Employee Respondents contend that the Petition fails to plead with
any specificity a prima facie claim for an Eighth Amendment violation for deliberate
indifference. The Petition merely indicates, they argue, that, “at some unspecified
date[s] and time[s]” Thomas suffered a seizure and “a severe electrical burn for
which he received substandard emergency . . . [and] follow-up treatment.” (PO
¶¶ 39, 50.) Such vague allegations, which do not connect the alleged substandard


                                          7
medical treatment to any of the named Employee Respondents, none of whom are
medical staff, they argue, do not meet the applicable pleading standard for an Eighth
Amendment claim under Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). (PO ¶¶ 42-
45, 56.) They further argue the Eighth Amendment claim is legally deficient because
the factual allegations themselves indicate that Thomas was, in fact, provided
medical care, including a transfer to a local hospital and the use of burn protocol that
meets the Eighth Amendment standard. (Id. ¶¶ 53-55.)
      In his Answer, Thomas denies that his Petition is deficient and does not state
an Eighth Amendment claim. In his Brief, Thomas asserts additional facts regarding
the alleged deliberate indifference to his medical conditions, including dates, times,
the names of the medical personnel involved, and why he believes Employee
Respondents, particularly Lt. Thomas, influenced the treatment, or non-treatment,
of these injuries.
      The Eighth Amendment to the United States Constitution protects inmates
from cruel and unusual punishment, including “the unnecessary and wanton
infliction of pain” based on the “deliberate indifference to serious medical needs of
prisoners.” Estelle, 429 U.S. at 104. In Tindell v. Department of Corrections, 87
A.3d 1029, 1038-40 (Pa. Cmwlth. 2014) (footnote omitted), we explained the
standard for reviewing these Eighth Amendment claims, stating:

      claims of negligent diagnosis or treatment, disagreement as to the
      course of treatment, and medical malpractice do not rise to the level of
      a constitutional violation merely because the patient is a prisoner.
      [Estelle, 429 U.S.] at 106 . . . . Rather, “[i]n order to state a cognizable
      claim, a prisoner must allege acts or omissions sufficiently harmful to
      evidence deliberate indifference to serious medical needs. It is only
      such indifference that can offend the ‘evolving standards of decency’
      in violation of the Eighth Amendment.” Id. at 106 . . . .




                                           8
      Whether the medical need of an inmate is sufficiently serious to
      constitute an injury amounting to cruel and unusual punishment is an
      objective inquiry. Id. at 106–107 . . . ; Farmer v. Brennan, 511 U.S.
      825, 834 . . . (1994). Common factors relied upon by the courts to
      determine if a medical need is sufficiently serious to fall within the
      ambit of the Eighth Amendment include whether the medical need is:
      (i) one that has been diagnosed by a physician as requiring treatment;
      (ii) one that is so obvious that a lay person would easily recognize the
      necessity for a doctor’s attention; (iii) one where denial or delay of
      treatment causes an inmate to suffer a life-long handicap or permanent
      loss; (iv) one where denial or delay of treatment results in unnecessary
      and wanton infliction of pain; (v) one that significantly affects an
      individual’s daily activities; or (vi) one that causes chronic and
      substantial pain. . . .

      In addition to satisfying the objective component of an Eighth
      Amendment claim, a prisoner must also allege acts or omissions that
      evidence deliberate indifference on the part of prison officials in order
      to state a cognizable claim that the prisoner’s constitutional right to be
      free from cruel and unusual punishment has been violated. In Farmer
      v. Brennan, the Supreme Court concluded that the inquiry into whether
      a prison official was deliberately indifferent is a subjective one,
      requiring the demonstration of a state of mind akin to criminal
      recklessness, and held that a prisoner must establish that: (i) the prison
      official knew of and disregarded an excessive risk to inmate health or
      safety; (ii) the prison 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. 511 U.S. at 837,
      840 . . . . Examples of circumstances where a prison official has been
      found to act with deliberate indifference include where the prison
      official: (i) knows of a prisoner’s need for medical treatment but
      intentionally refuses to provide it; (ii) delays necessary medical
      treatment based on a non-medical reason; (iii) prevents a prisoner from
      receiving needed or recommended medical treatment; or (iv) persists in
      a particular course of treatment in the face of resultant pain and risk of
      permanent injury.

A non-physician defendant in an Eighth Amendment action cannot be considered
deliberately indifferent for failing to respond to an inmate’s medical complaints




                                          9
when the inmate is receiving treatment by the prison’s medical staff. Pearson v.
Prison Health Serv., 850 F.3d 526, 543 (3d Cir. 2017).3
       Reviewing and taking the facts pled in the Petition as true, Thomas has not
stated a cognizable claim for a violation of the Eighth Amendment through the denial
of medical care. Thomas’s averments in the Petition do not provide any detail as to
either his alleged seizure or electrical burn to establish a prima facie claim for relief.
The averments identify no times or dates or location where the purported deliberate
indifference occurred, nor do they explain how these Employee Respondents, who
are not medical staff, were responsible for the alleged substandard medical
treatment. Moreover, the Petition’s averments do not allege that any prison official,
let alone these Employee Respondents, “(i) . . . knew of and disregarded an excessive
risk to inmate health or safety; (ii) . . . was aware of facts from which an inference
could be drawn that a substantial risk of serious harm exists; and (iii) . . . drew the
inference” or that the alleged conduct violated “evolving standards of decency.”
Tindell, 87 A.3d at 1038-40 (internal quotation marks omitted).
       Although Thomas attempts to add facts in his Brief, doing so is not proper
because “[f]actual disputes are framed by pleadings, not briefs” and “additional
allegations offered by an inmate through . . . [a] brief” should be rejected. Thomas
v. Corbett, 90 A.3d 789, 800 (Pa. Cmwlth. 2014) (internal quotation marks and
citation omitted). Even if the additional facts alleged were considered, it does not
appear they would establish a prima facie case, as they suggest negligent treatment
rather than deliberate indifference and do not establish how Employee Respondents


       3
         “Generally, decisions of federal district courts and courts of appeals are not binding on
this Court, . . . but they may have persuasive value. Unreported federal court decisions may also
have persuasive value.” O’Toole v. Pa. Dep’t of Corr., 196 A.3d 260, 271 n.15 (Pa. Cmwlth.
2018) (quotations omitted) (alteration in the original).


                                               10
caused the alleged deliberate indifference toward Thomas’s medical condition where
he was, in fact, under the care of the medical officials. Thus, even if we were to
allow Thomas the opportunity to amend the Petition, which he has not requested,
such relief is not warranted because amendment would be futile. Weaver v. Franklin
County, 918 A.2d 194, 203 (Pa. Cmwlth. 2007).
      Based on the Petition’s allegations and any inferences reasonably deducible
therefrom, which fail to allege a prima facie Eighth Amendment claim based on
deliberate indifference, “it . . . appear[s] with certainty that the law will permit no
recovery” on these claims. Smith, 894 A.2d at 881. Further, because allowing
Thomas to amend the Petition with the new allegations asserted in his Brief would
be futile, no such amendment is warranted. Therefore, we sustain this demurrer and
dismiss this claim in its entirety with prejudice.

      C. Failure to State a Due Process Claim
      DOC and Employee Respondents assert that Thomas fails to state a claim for
a violation of his due process rights during the intra-institutional misconduct hearing
because, notwithstanding Thomas’s allegations, he received all the process he was
due under Wolff v. McDonnell, 418 U.S. 539 (1974). (POs ¶¶ 34-35.) They contend
that, under Wolff, Thomas had no constitutional right to confront or cross-examine
witnesses during that hearing nor is the right to review the particular evidence against
him guaranteed by Wolff. (Id. ¶¶ 35-36.) DOC and Employee Respondents question
whether the urinalysis report itself would have been of value to Thomas, as he did
not allege that he was qualified to interpret or refute the report’s findings. (Id. ¶ 37.)
They further maintain that Thomas cannot seek a declaration to have his misconduct
declared void or an appeal of that misconduct determination in this Court because
we lack jurisdiction over such claims. (Id. ¶ 33 n.3 (citing Bronson v. Cent. Office


                                           11
Review Comm., 721 A.2d 357 (Pa. 1998); Brown v. Pa. Dep’t of Corr., 913 A.2d
301 (Pa. Cmwlth. 2006)).) Because Thomas received the process he was due for the
intra-institutional misconduct hearing, DOC and Employee Respondents argue
Thomas’s due process claim must be dismissed.
      Thomas denies that his due process claim is based only on his inability to
review the urinalysis report at the misconduct hearing and that he received the
required due process. (Answer ¶¶ 33, 36-38.) Thomas does not dispute the standard
for due process set forth in Wolff, but argues there must be “some evidence” in the
record to support a finding of misconduct pursuant to Superintendent v. Hill, 472
U.S. 445 (1985). Citing the allegations in the Petition and additional evidence he
includes in or attaches to his Brief, Thomas argues the “some evidence” relied upon
by Hearing Examiner to support the misconduct determination, the urinalysis report
showing Thomas’s positive result, did not exist and, if it did, was falsified.
(Thomas’s Brief (Br.) at 3-5.) Thomas maintains the urine sample taken from him
on September 20, 2017, was never sent for testing, and Employee Respondents
intentionally pretended there was a positive lab result to support the misconduct
report and deny him his due process rights. (Id.) There being no actual evidence of
his positive drug result to support the misconduct determination, Thomas argues his
due process rights were violated. (Id. at 5.)
      Reviewing and taking the facts pled in the Petition as true, Thomas has not
stated a cognizable claim for a violation of due process rights under these
circumstances. First, to the extent that Thomas’s Petition can be read as a direct
challenge to the misconduct determination, such challenges are not within this
Court’s jurisdiction, whether the challenge is filed in our original or appellate
jurisdiction.   Edmunson v. Horn, 694 A.2d 1179, 1181 (Pa. Cmwlth. 1997).



                                          12
However, accepting Thomas’s allegations as asserting a due process violation, rather
than a direct appeal or attack on the misconduct determination, our review of those
allegations reveals that Thomas has not stated a due process claim upon which relief
can be granted.
      Pursuant to Wolff, procedural due process requires that inmates charged with
misconduct be provided: (1) a hearing by an impartial adjudicator; (2) written notice
of the charges, provided at least 24 hours prior to the hearing; (3) an opportunity to
call witnesses and present documentary evidence, provided the presentation of such
does not threaten institutional safety or correctional goals; (4) assistance if the
charged inmate is illiterate or if complex issues are involved; and (5) a written
explanation of the decision. 418 U.S. at 563-71. In Hill, the United States Supreme
Court noted that “Wolff did not require either judicial review or a specified quantum
of evidence to support the factfinder’s decision” although it recognized that Wolff
explained that a written record did help to assure that the administrators, who could
face possible scrutiny from state officials and the public, would act fairly. Hill, 472
U.S. at 454. The Supreme Court in Hill then concluded that, in prison disciplinary
matters, “‘the minimum requirements of procedural due process[]’ . . . [are not met]
unless the findings of the prison disciplinary board are supported by some evidence
in the record.” Id. This standard is met if “there was some evidence from which the
conclusion of the administrative tribunal could be deduced.” Id. at 455 (internal
quotation marks and citation omitted). This Court has relied on both Wolff and Hill
in determining whether an inmate has stated a due process claim upon which relief
can be granted. Melton v. Beard, 981 A.2d 361, 364-65 (Pa. Cmwlth. 2009).
      Per the Petition, Thomas received written notice of the charged misconduct
on September 29, 2017, and the hearings on that misconduct were held more than



                                          13
24 hours later on October 3 and 5, 2017. (Petition ¶¶ 15-16.) Although Thomas
asserts he was not given the opportunity to review the urinalysis report or the video
footage, he does not argue that he was otherwise prevented from presenting his
defense or arguing against the evidence cited in the misconduct report, such as his
contentions that the urine sample was tampered with or that the result was fabricated
or falsified. (Id. ¶¶ 17-23, 26.) Finally, Thomas does not dispute that Hearing
Examiner issued a written explanation for his decision, although Thomas challenges
the factual foundation of that decision. (Id. ¶ 20.) Thus, Thomas’s due process
claims are premised on the use of the alleged non-existent or falsified urinalysis test
results to support Hearing Examiner’s determination that Thomas was guilty of the
charged misconduct or, in other words, that there is not “some evidence” to support
that determination.
      The United States Court of Appeals for the Third Circuit has explained that
“[p]ositive urinalysis results based on samples that officials claim to be [the
inmate’s] constitute some evidence of [the inmate’s] drug use.” Thompson v.
Owens, 889 F.2d 500, 502 (3d Cir. 1989) (emphasis in original). The Third Circuit
clarified that challenges to the reliability of that evidence, there, a chain of custody
challenge, would require a court to perform an “independent assessment” of the
reliability of that evidence, which is not required by due process or Hill. Id.
Moreover, an inmate’s attack on the sufficiency or reliability of the “some evidence”
relied upon in the misconduct determination does not “articulate facts amounting to
constitutional significance.” Seymour/Jones v. Kane, No. CIV A. 92-1486, 1993
WL 235919, at *4 (E.D. Pa. June 30, 1993). In Smith v. Mensinger, 293 F.3d 641,
653-54 (3d Cir. 2002), the Third Circuit held “that, with respect to [a] misconduct
hearing, due process is satisfied where an inmate is afforded an opportunity to be



                                          14
heard and to defend against the allegedly falsified evidence and groundless
misconduct reports.” “[S]o long as certain procedural requirements are satisfied,
mere allegations of falsified evidence or misconduct reports, without more, are not
enough to state a due process claim.”4 Id. at 654. We applied the standard set forth
in Mensinger in Nifas v. Sroka (Pa. Cmwlth., No. 422 C.D. 2016, filed July 29,
2016), slip op. at 7-8,5 in response to an inmate’s claim that a misconduct report was
falsified, and we do the same here in reviewing this demurrer.
       Here, Hearing Examiner cited the positive results of the urinalysis report
claimed to be Thomas’s as evidence that Thomas violated DOC’s policy against the
use of dangerous or controlled substances. Thomas acknowledges that a written
urinalysis report existed because it was sent to DOC’s investigators in response to
Thomas’s complaints to DOC, although Thomas contends it was forged. (Petition
¶ 26.) The positive urinalysis report cited by Hearing Examiner is “some evidence”
to support the misconduct determination. Thompson, 889 F.2d at 502 (emphasis
omitted). That Thomas challenges the reliability and sufficiency of that evidence
does not “articulate facts amounting to constitutional significance.” Seymour/Jones,
1993 WL 235919 at *4. Thomas was afforded a hearing at which he had the
opportunity to confront and challenge the alleged falsified evidence and misconduct
report and, per Mensinger, “that is all he was entitled to.” 293 F.3d at 654. For these


       4
          However, where prison disciplinary hearings or the alleged falsified misconduct reports
or evidence are made “in retaliation for an inmate’s resort to legal process,” or exercise of some
other constitutional right, such falsification is a violation of due process and/or the underlying
constitutional right. Mensinger, 293 F.3d at 653-54. The Petition contains no allegation that the
initial misconduct report and disciplinary proceedings were made in retaliation of Thomas’s
exercise of a constitutional right.
        5
          Although not binding, unreported opinions of this Court may be cited for their persuasive
value pursuant to Section 414(a) of the Court’s Internal Operating Procedures, 210 Pa. Code
§ 69.414(a).


                                                15
reasons, “it . . . appear[s] with certainty that the law will permit no recovery” on
Thomas’s due process claims, and, therefore, we sustain the demurrer and dismiss
those claims in their entirety with prejudice. Smith, 894 A.2d at 881.

       D. Failure to State a Claim Based on Interference with Legal Mail/Access to
          Court
       DOC and Employee Respondents assert the “nominal claim regarding the
processing of his mail” set forth in the Petition should be dismissed because the
Petition “provides almost no identifying information associated with this claim and
makes no effort to impugn liability for his mail delays upon . . . [Employee]
Respondents . . . .” (POs at 8 n.4.) Thomas, in the Petition, pleads that his “mail has
been subject to delay and investigation since seeking civil redress.” (Petition ¶ 28.)
He provides no further facts in his Petition to support this claim. In his Brief,
Thomas adds six pages of new factual allegations, plus exhibits, describing an
instance where he contends his legal mail, a complaint filed under 42 U.S.C. § 1983,
which was to be mailed to the United States District Court of the Western District of
Pennsylvania, was delayed and interfered with, likely at the behest of Capt. Sheeder,
resulting in the mail being returned to sender. (Thomas’s Br. at 15-20.) Not
contained within these new factual allegations is any averment that Thomas was
actually harmed by that delay and interference or any particular request for relief as
a result of this alleged constitutional violation.
       In order to state a cognizable claim for a violation of the First Amendment of
the United States Constitution6 based on the interference with an inmate’s mail
and/or access to the courts, the inmate has to establish, among other things, that the


       6
          The First Amendment to the United States Constitution states, in pertinent part, that
“Congress shall make no law . . . abridging . . . the right of people to . . . petition the Government
for a redress of grievances.” U.S. CONST., amend. I.


                                                 16
interference resulted in an actual injury, that is, that the inmate’s efforts to adequately
pursue the legal claim were hindered in a specific manner. Jones v. Doe, 126 A.3d
406, 408-09 (Pa. Cmwlth. 2015); Arnold v. Pa. Dep’t of Corr. (Pa. Cmwlth., No. 86
M.D. 2013, filed Jan. 28, 2014), slip op. at 8-9. See also Lewis v. Casey, 518 U.S.
343, 349 (1996) (an inmate must show actual injury resulted from the alleged
interference with an inmate’s access to the court). Such injury could include the
dismissal of a complaint or that the inmate was precluded from even filing a
complaint. Arnold, slip op. at 9 (citing Lewis, 518 U.S. at 349).
      Reviewing and taking the facts pled in the Petition as true, Thomas has not
stated a cognizable claim for a violation of the First Amendment. The Petition is
devoid of any factual allegations regarding the alleged delay and investigation of
Thomas’s mail, whether any injury arose therefrom, or any requested relief for this
claim. Instead, it contains a single conclusory statement that his “mail has been
subject to delay and investigation since seeking civil redress.” (Petition ¶ 28.)
Thomas attempts to add facts to this matter in his Brief, but those facts are not
properly before the Court as we are examining the pleadings. Thomas, 90 A.3d at
800. Even if they were, there is no allegation of any actual injury or request for relief
particular to this claim. Based on the Petition’s allegations and any inferences
reasonably deducible therefrom, which fails to allege a prima facie First Amendment
claim based on the interference with Thomas’s mail and access to the courts, “it . . .
appear[s] with certainty that the law will permit no recovery” on these claims. Smith,
894 A.2d at 881. Therefore, we sustain this demurrer and dismiss this claim.




                                            17
      E. Lack of Personal Involvement
      Last, CO Shaffer, Lt. Thomas, Capt. Sheeder, and Capt. Harding argue that
Thomas has not stated claims against them because the Petition does not allege that
they were personally involved in violating Thomas’s constitutional rights. However,
because we dismiss the Petition based on sustaining the other demurrers, this
demurrer is dismissed as moot.

      IV.    Conclusion
      Because the Petition fails to state claims for the violation of Thomas’s rights
to due process and to be free from cruel and unusual punishment upon which relief
can be granted, we sustain the POs filed by DOC and Employee Respondents and
dismiss the Petition on those bases with prejudice. We also sustain the PO to
Thomas’s claim based on the interference with his mail and access to the courts and
dismiss the Petition as to this claim as well. The PO asserting the lack of allegations
regarding the personal involvement of some of Employee Respondents is dismissed
as moot.


                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge




                                          18
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darnell Thomas,                        :
                           Petitioner  :
                                       :
                    v.                 :   No. 617 M.D. 2018
                                       :
Pennsylvania Department of             :
Corrections, Corrections Officer B.    :
Shaffer, Lt. M. Thomas, Capt.          :
Bradley Sheeder, Capt. Harding, and    :
Hearing Examiner Frank Nunez, in their :
individual and official capacities,    :
                           Respondents :


                                  ORDER


      NOW, November 22, 2019, the Preliminary Objections in the nature of a
demurrer filed by Respondents to Darnell Thomas’s Petition for Review are
SUSTAINED IN PART and DISMISSED AS MOOT IN PART and the Petition
for Review is DISMISSED in accordance with the foregoing opinion.



                                    _____________________________________
                                    RENÉE COHN JUBELIRER, Judge
