            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Darren Miller,                              :
                      Appellant             :
                                            :
               v.                           : No. 1370 C.D. 2017
                                            : Submitted: April 13, 2018
Michael Clark                               :


BEFORE:        HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                            FILED: May 8, 2018


               Darren Miller (Miller) appeals from the order of the Erie County
Court of Common Pleas (trial court) dismissing his complaint seeking a permanent
injunction against Michael Clark (Superintendent Clark), the Superintendent of the
State Correctional Institution at Albion (SCI-Albion), for:                      (1) further
medical/psychological treatment; and/or (2) reinstated “Z-Code”1 status, which

      1
          Under the SCI Reception and Classification Procedures Manual:

               Any inmate who meets any of the following criteria shall be
               carefully reviewed by staff and considered for Program Code “Z”
               housing classification.

                      (a) An inmate who is evaluated by psychiatric or
               psychological staff as having mental health problems. Examples
               include the following:
(Footnote continued on next page…)
would require him to be in a single-occupancy cell. For the following reasons, we
affirm.


                                             I.
              Miller is an inmate currently incarcerated at SCI-Albion. In January
2017, after having been in a single cell for 20 years, Miller was forced to live with
a cellmate. Miller then filed a pro se complaint against Superintendent Clark
seeking injunctive relief to obtain a form of mental-health treatment as well as
restoration of his “Z-Code” status. In his complaint, Miller alleged that he suffers
from serious mental illnesses including a history of attempted suicide and violence.
Attached to that complaint was a November 29, 2016 report detailing an incident
that occurred after Miller refused to take a cellmate. The reporting staff member
stated:

(continued…)


                            (1) Dangerous to self;
                            (2) Dangerous to others;
                            (3) Self-mutilative;
                            (4) Unable to care for self; and/or
                            (5) Active on the Psychiatric Review Team (PRT)
              roster.

                                            ***

                     (d) An inmate who has a documented history of aggressive
              behavior towards cell partners or who staff has reason to believe
              would exhibit assaultive or predatory behavior towards cell
              partners.

(Record (R.) Item No. 7, Complaint, Attachment.)




                                             2
             I then informed [Miller] that he is not a single cell status
             inmate and [cannot] refuse to be double celled. He then
             stated to me that “if you put him in here he isn’t safe.” I
             then shut his cell door and notified control.


(Record (R.) Item No. 7.) The following month, Miller attempted suicide by
taking a large amount of pills and was taken to UPMC Hamot overnight for
observation. Miller alleged that he was not receiving any mental health care at the
prison and “continues to suffer.” (Complaint ¶9.)


             On April 17, 2017, in response to Miller’s Motion for Expedition, the
trial court ordered that an expedited hearing on Miller’s request for injunction be
held on April 28, 2017. The order also required that the Erie County Sheriff serve
Superintendent Clark with the order scheduling the hearing as well a copy of the
complaint and request for an injunction. On April 24, 2017, the Sheriff served
Superintendent Clark.


             At the April 28, 2017 hearing, Superintendent Clark did not appear,
no appearance was entered on his behalf, and the hearing proceeded without him.
Miller testified that he was on medication for mood swings but stopped taking it
after his “Z-Code” status was revoked. Miller also testified that he often heard
voices in his head telling him to hurt himself and others.


             On May 2, 2017, the trial court ordered that Superintendent Clark
provide the court with Miller’s medical records from UPMC Hamot and have
Miller evaluated by a certified, independent psychologist who was unaffiliated
with the Pennsylvania prison system. Counsel for Superintendent Clark entered


                                          3
his appearance on May 17, 2017, and Superintendent Clark complied with the trial
court’s May 2, 2017 order.


             On May 15, 2017, Miller filed a Motion for Judgment upon Default or
Admission, alleging that because Superintendent Clark failed to appear at the April
28, 2017 hearing and because his counsel did not timely file an entry of
appearance, Miller was entitled to permanent injunctive relief. On June 5, 2017,
the trial court denied the motion because the relief granted in its May 2, 2017 order
made the motion moot. Miller then filed a Motion for Clarification, noting that he
had not been granted injunctive relief to receive adequate mental health care and
reinstatement to “Z-Code” status.


             In accordance with the May 2, 2017 order, Miller was evaluated by
Dr. Keith R. Stowell (Dr. Stowell), a board certified physician in adult psychiatry,
forensic psychiatry and geriatric psychiatry.      Dr. Stowell interviewed Miller,
reviewed Miller’s UPMC Hamot medical records and medical administration notes
and psychiatry, as well as psychology and progress notes from doctors at SCI-
Albion. Dr. Stowell also conducted a collateral interview with Sergeant Conley, an
employee of SCI-Albion.


             In his report, Dr. Stowell stated that Miller exhibits signs of antisocial
personality disorder and recommended the following treatment:

             There is no standard recommended treatment for
             Antisocial Personality Disorder. There is some evidence
             to support the use of group-based cognitive and
             behavioral interventions to address impulsivity,


                                          4
              interpersonal difficulties, and antisocial behavior.
              However, availability of this programming and Mr.
              Miller’s participation should be at the recommendation of
              the behavioral health treatment team at SCI-Albion. It is
              not essential that such programming be provided to him.
              It should be noted that there have been multiple attempts
              by mental health professionals to meet with Mr. Miller
              over the past several months, but he has declined to
              interact with them.


(R. Item No. 3, 1925(a) Opinion at 3) (quoting Dr. Stowell’s report).2
Furthermore, Miller’s UPMC Hamot records stated, “Patient may be overstating
how many [pills he] actually took as he again shows no signs or symptoms of
Benadryl or Bupropion overdose.” (Id.) The trial court noted that Bupropion is a
medication used to treat depression.               Furthermore, Dr. Gottesman, D.O.,
presumably a prison physician, stated in his Psychiatric Observation Cell
Discharge Summary, that Miller:

              Argues very logically and coherently that he needs his Z
              code or “for sure something is gonna happen bad.”
              Fabricated auditory hallucinations. No acute risk to self
              or others. Wants to influence staff to maintain his Z
              code.


(Id. at 4.) Another prison progress note indicated that Miller “declined to be seen
by psychology. No reason was provided and he has been refusing to be seen for
several months.” (Id.)

       2
         Dr. Stowell’s report was not forwarded with the trial court’s record. It was filed under
seal with the trial court, at Superintendent Clark’s request, because it would reveal sensitive
medical and mental health information pertaining to Miller.




                                               5
              Based on Dr. Stowell’s report, the trial court dismissed Miller’s
complaint requesting injunctive relief in the form of Superintendent Clark
providing additional medical/psychological treatment and reinstating his “Z-Code”
status because it was satisfied that: (1) Miller was being treated for his mental
health issues; (2) he was not in imminent danger of serious bodily harm; and (3)
Superintendent Clark did not exhibit deliberate indifference to the serious medical
or mental health needs of Miller. This appeal followed.3


                                               II.
                                               A.
              On appeal, Miller contends that the trial court erred in dismissing his
complaint and denying injunctive relief because he is entitled to default judgment
under Pa. R.C.P. No. 1037 because Superintendent Clark failed to appear at the
April 28, 2017 hearing or timely enter an appearance.                  Pa. R.C.P. No. 1037
provides in relevant part:

              (b) The prothonotary, on praecipe of the plaintiff, shall
              enter judgment against the defendant for failure to file
              within the required time a pleading to a complaint which
              contains a notice to defend or, except as provided by
              subdivision (d), for any relief to be due by the
              defendant’s pleadings.

                                             ***



       3
         This Court’s scope of review is limited to a determination of whether constitutional
rights have been violated and whether the trial court abused its discretion or committed an error
of law. Bronson v. Lechward, 624 A.2d 799 (Pa. Cmwlth. 1993).




                                               6
             (d) In all cases in which equitable relief is sought, the
             court shall enter an appropriate order upon the judgment
             of default or admission and may take testimony to assist
             in its decision and in framing the order.


             The trial court, construing the matter before it at the April 28, 2017
hearing as a motion for actions to be taken to determine whether Miller needed
additional medical care or housed in a single cell, denied Miller’s motion because
it had already provided the requested relief in its May 2, 2017 Order. Miller seems
to argue that the matter is not moot because what he was seeking at the April 28,
2017 hearing was additional mental health treatment and to be housed in a single
cell, not an evaluation to see if he needed treatment or single-cell housing.


             We need not address this issue because Miller was not entitled to a
default judgment under Pa. R.C.P. No. 1037. Under that provision, a default
judgment can be taken when a defendant fails to file a responsive pleading
(normally, within 20 days) to a complaint. However, pursuant to Pa. R.C.P. No.
237.1, this can only be done after ten days’ notice is given by the plaintiff to the
defendant that he intends to do so. In this case, the ten day notice that was required
to be given by Miller to Superintendent Clark was not given, making any request
or entry of a default judgment improper. Now to the merits.


                                          B.
             Without precisely saying so, Miller is alleging that the trial court erred
when dismissing his Eighth Amendment claim, finding that he was receiving
proper treatment and that accommodation for his medical condition was




                                          7
unnecessary – i.e., single-cell housing.4 In order to state a cognizable claim under
the Eighth Amendment, a prisoner must allege acts or omissions sufficiently
harmful to evidence deliberate indifference to serious medical needs. Estelle v.
Gamble, 429 U.S. 97, 106 (1976). Whether the medical need of an inmate is
sufficiently serious is an objective inquiry, the factors of which include:

              (i) [O]ne 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.


Tindell v. Department of Corrections, 87 A.3d 1029, 1038-39 (Pa. Cmwlth. 2014)
(citing Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). An inquiry into
whether a prison official was deliberately indifferent requires that the prisoner
show 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. Farmer v. Brennan, 511 U.S. 837, 840 (1980).




       4
        Amendment VIII of the U.S. Const. provides: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. Amend.
VIII.




                                              8
             Miller failed to establish evidence of deliberate indifference to serious
medical needs by Superintendent Clark, based on Dr. Stowell’s report. That report
shows that: (1) Miller was being treated for his depression prior to his suicide
attempt; (2) after the suicide attempt, he was evaluated, medicated and offered
psychological services, but turned them down; and (3) the only mental health
condition Miller has is Antisocial Personality Disorder.


             As to Miller’s request for single-cell housing, an inmate does not have
a right to be confined in housing of his choosing. 37 Pa. Code § 93.11(a). In fact,
it is well settled that prisoners do not have a due process right to be single-celled.
See, e.g., Rhodes v. Chapman, 452 U.S. 337 (1981). Moreover, prison officials
must be afforded wide-ranging deference on the adoption and execution of policies
and practices that, in their judgment, are necessary to preserve internal order and
maintain institutional security. Robson v. Biester, 420 A.2d 9, 12 (Pa. Cmwlth.
1980). Under the SCI Reception and Classification Procedures Manual, to be
considered for single-cell housing – i.e., a Program Code “Z” housing
classification – Miller must have a mental health condition that makes him
dangerous to himself or others. (See supra note 1.) In this case, the trial court
accepted Dr. Stowell’s report that Miller is not dangerous to himself or others, and
his mental health problems do not require that he be placed in a single cell.
Because there is no evidence that his mental health conditions were not being
addressed or that they require him to be housed in a single cell, Miller failed to
make out a claim that his Eighth Amendment rights were violated or that prison
officials abused their discretion by not placing him in a single cell.




                                           9
              For the foregoing reasons, we affirm.5



                                            ___________________________________
                                            DAN PELLEGRINI, Senior Judge




        5
          Miller contends that the trial court denied him the opportunity to present evidence of
his alleged mental health illness. This issue was not raised in his 1925(b) statement and,
therefore, is waived.



                                              10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Darren Miller,                      :
                  Appellant         :
                                    :
            v.                      : No. 1370 C.D. 2017
                                    :
Michael Clark                       :




                                  ORDER


            AND NOW, this 8th day of May, 2018, the June 20, 2017 order of
the Court of Common Pleas of Erie County is affirmed.



                                    ___________________________________
                                    DAN PELLEGRINI, Senior Judge
