          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brehon Rawlings,                               :
                              Petitioner       :
                                               :
               v.                              :    No. 562 M.D. 2016
                                               :    Submitted: June 23, 2017
John Wetzel, Secretary of D.O.C.               :
Robert Gilmore, Superintendent at              :
SCI-Greene,                                    :
                         Respondents           :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                               FILED: October 20, 2017

               Before us in our original jurisdiction are the Department of Corrections’
(DOC) preliminary objections in the nature of a demurrer.              Brehon Rawlings
(Rawlings), an inmate at the State Correctional Institution Greene (SCI-Greene),
representing himself, filed a petition for review (Petition) seeking to enjoin alleged
violations of his constitutional rights1 and of the Americans with Disabilities Act
(ADA), 42 U.S.C. §§12131-12134. He alleges DOC Secretary John Wetzel, and
Superintendent of SCI-Greene, Robert Gilmore (collectively, Respondents), housed
him in a restricted housing unit (RHU) for disciplinary reasons without regard for his
mental illness. DOC argues Rawlings fails to plead a constitutional violation. It also
asserts the pleading is legally deficient as to Respondents’ culpability for the alleged
violations. We sustain the demurrer and dismiss the Petition.
                                       I. Background

      1
          U.S. CONST., amend. VIII, XIV; PA. CONST., art. 1 §26.
                Rawlings filed the Petition against Respondents, alleging violations of
his constitutional rights. Specifically, he claims Respondents violated his right to be
free from cruel and unusual punishment under the Eighth Amendment to the U.S.
Constitution, and his right to equal protection under the Fourteenth Amendment to the
U.S. Constitution, and Article 1, Section 26 of the Pennsylvania Constitution. He also
asserts DOC did not abide by its agreement with the Disability Rights Network
requiring monthly assessments of inmates’ mental health while in solitary
confinement. He alleges DOC did not consider his mental illness before placing him
in RHU, and he avers that such confinement was not necessary for legitimate,
penological reasons.         He seeks an order directing DOC to cease violating his
constitutional rights and to abide by the Disability Rights Network agreement.


                Rawlings’ Petition sets forth the following pertinent facts. Throughout
his incarceration, Rawlings received treatment for anxiety and depression. Upon
entering the DOC system in 2014, he was classified as a “C code” for mental health
stability. Pet. at ¶9. Following an evaluation at SCI-Camp Hill, he was housed in a
mental health unit.        Id. at ¶10. Since his transfer to SCI-Greene in June 2015,
Rawlings received regular psychological treatment. Id. at ¶11.


                On March 1, 2016, Rawlings received four class 1 misconduct charges.2
When found guilty, he was sentenced to 180 days in RHU.3 He alleges DOC violated
its policy, DC-ADM 801 (Policy), by housing him without an assessment by mental


       2
           The charges included aggravated assault and refusing to obey an order. Pet. at Ex. A-1.
       3
         Rawlings received a second misconduct charge in April 2016 while serving RHU time,
for which he received an additional 30 days in RHU. He then received a third misconduct charge
in August 2016.

                                                 2
health staff. Id. at ¶¶15-16. He alleges his misconduct report did not show he was
on the mental health roster, or reflect his stability code as the Policy requires. He
contends his mental health should have been considered by the hearing examiner
during sentencing. Id. at ¶¶17, 29. It is unclear from Rawlings’ Petition how, if at
all, he was precluded from asserting his mental health status during sentencing.


             Nevertheless, Rawlings filed a grievance regarding these alleged
violations of the Policy, and for disregarding his mental health status by housing him
in the RHU. He exhausted his administrative remedies in that he “received [a] final
order of grievance appeal from [DOC’s] Chief Grievance Officer concerning Health
Care Services.” Pet. at ¶3, see also id. at ¶40.


             Additionally, Rawlings claims DOC violated its agreement with
Disability Rights Network (Agreement). He avers the Agreement requires mental
health staff to interview C code inmates every 30 days, yet he received only one
assessment while in the RHU. The Agreement states: “[Special Residential Treatment
Unit (SRTU)] housing will be provided to inmates on the active mental health roster
…. Inmates may be transferred to the SRTU [on disciplinary] status. [Such] inmates
will receive credit on their disciplinary time while housed in the SRTU.” Id. at ¶31.
He avers DOC’s violation of the Agreement denied him the opportunity for an early
discharge from disciplinary custody.


             Rawlings complains the RHU sanction disregarded his mental health,
and Respondents were deliberately indifferent to his mental illness by housing him




                                           3
in the RHU. He also claims Respondents violated his rights under the ADA, and he
was not treated the same as inmates in the same stability code. Id. at ¶¶48, 50.


              As to relief, Rawlings seeks a permanent injunction against
Respondents’ alleged constitutional violations. Overall, he seeks “EQUALITY.”
Id. at ¶52 (all caps in original).


                                     II. Discussion
              Pursuant to Pa. R.C.P. No. 1028(a)(4), DOC filed preliminary
objections to Rawlings’ Petition in the nature of a demurrer. DOC argues the
pleading is deficient because it does not allege sufficient personal involvement of
Respondents. DOC also asserts Rawlings cannot state a claim for DOC’s failure to
comply with the Policy. In addition, it argues Rawlings cannot establish a deliberate
indifference claim against Respondents, who are not medical personnel.


              In considering a demurrer, we accept as true all well-pled material
allegations in the petition, as well as all inferences reasonably deducible therefrom.
Aviles v. Dep’t of Corr., 875 A.2d 1209 (Pa. Cmwlth. 2005). Further, we may also
consider any “documents or exhibits attached to [the petition].” Lawrence v. Dep’t
of Corr., 941 A.2d 70, 71 (Pa. Cmwlth. 2007). However, conclusions of law and
unjustified inferences are not so admitted. Allen v. Dep’t of Corr., 103 A.3d 365 (Pa.
Cmwlth. 2014). We may sustain preliminary objections in the nature of a demurrer
only when, based on the facts pled, it is clear that the complainant will be unable to
prove facts legally sufficient to establish a right to relief. Mazur v. Trinity Area Sch.
Dist., 961 A.2d 96 (Pa. 2008); Humphrey v. Dep’t of Corr., 939 A.2d 987, 990 n.4



                                           4
(Pa. Cmwlth. 2007), aff’d, 955 A.2d 348 (Pa. 2008) (“Only in circumstances that are
free from doubt may preliminary objections be sustained.”).


               Rawlings attempts to state a Section 19834 claim against Respondents
for alleged constitutional and statutory violations. Specifically, Rawlings generally
asserts Respondents were deliberately indifferent to his mental health in violation of
the Eighth Amendment of the U.S. Constitution.             He also generally claims
Respondents violated his rights under the ADA. Id. at ¶48.


               To state a Section 1983 claim, a petitioner “must allege the violation of
a right secured by the Constitution and laws of the United States, and must show that
the alleged deprivation was committed by a person acting under color of state law.”
West v. Atkins, 487 U.S. 42, 48 (1988); see Miles v. Wiser, 847 A.2d 237 (Pa.
Cmwlth. 2004). A petitioner must name an individual defendant culpable for the
alleged violations. Warren v. Dep’t of Corr., 616 A.2d 140 (Pa. Cmwlth. 1992).


               Under the Eighth Amendment, the government may not inflict “cruel
and unusual punishments.” U.S. CONST. amend. VIII. To that end, “[p]rison
officials must ensure that inmates are not deprived of the ‘minimal civilized measure
of life’s necessities,’ including … medical care ….” Tindell v. Dep’t of Corr., 87
A.3d 1029, 1041 (Pa. Cmwlth. 2014) (quoting Rhodes v. Chapman, 452 U.S. 337,
346 (1981)). In the medical care context, Rawlings must allege that prison officials
were deliberately indifferent to an objectively serious medical need. Id. In addition,
he must aver the officials had the requisite intent. Id. “[This] subjective element


      4
          42 U.S.C. §1983.


                                            5
requires that the officials act with a ‘sufficiently culpable state of mind.’” Krechmar
v. Dep’t of Corr., 831 A.2d 793, 799 (Pa. Cmwlth. 2003) (quoting Farmer v.
Brennan, 511 U.S. 824, 834 (1994)).


               To prevail on an ADA claim, Rawlings must show: “(1) he is a
qualified individual with a disability;5 (2) he is either excluded from or otherwise
denied the benefits of some public entity’s services, programs or activities, or was
otherwise discriminated against by the public entity; and, (3) he was excluded from
the program based solely on his disability.” Kenneth S. Hantman, Inc. v. Office of
Unemployment Comp. Tax Servs., 928 A.2d 448, 452-53 (Pa. Cmwlth. 2007)
(emphasis added). A “public entity” is “any State or local government ....” 42 U.S.C.
§12131(1)(A).


                                     A. Policy Violation
               First, we consider DOC’s objection that the Policy is not a proper basis
for finding a constitutional violation.


               Rawlings asserts DOC’s noncompliance with its Policy violated his
rights because it did not afford him an interview with mental health staff before his
hearing on his first misconduct report. Pursuant to the Policy, mental health staff
may recommend a reduction or exception for RHU disciplinary time. Further, the
Policy provides an inmate’s mental health status and stability code should be
included on the misconduct report so it may be considered by the hearing examiner.


       5
         A disability is defined as “(A) a physical or mental impairment that substantially limits
one or more major life activities of such individual; (B) a record of such an impairment; or (C)
being regarded as having such an impairment....” 42 U.S.C. § 12102(1).

                                                6
Here, the misconduct report did not include Rawlings’ stability code. See Ex. A-1
to Pet.


               However, a failure to comply with prison policy is not a basis for a
cause of action. Africa v. Horn, 701 A.2d 273 (Pa. Cmwlth. 1997). This Court’s
precedent is clear that administrative rules and regulations do not create enforceable
rights in prison inmates. Tindell (denying inmate’s request for mandamus relief;
holding inmate did not establish deliberate indifference claim). Administrative
regulations are not statutes or constitutional provisions. Id.6


               To the extent Rawlings claims DOC’s violation of its Policy violated
his rights, “an inmate does not have a viable claim under [Section 1983] based solely
on a prison official’s failure to adhere to a regulation, directive or policy statement.”
Yount v. Dep’t of Corr., 886 A.2d 1163, 1169 (Pa. Cmwlth. 2005). It is well-
established that, “[p]rison officials are afforded a wide range of discretion in the
promulgation and enforcement of policies to govern internal prison operations and
must be allowed to exercise their judgment and to execute those policies necessary
to preserve order and maintain security within [SCIs] free from judicial
interference.” Tindell, 87 A.3d at 1035 (citing Bronson v. Cent. Office Review
Comm., 721 A.2d 357, 358 (Pa. 1998); Jackson v. Hendrick, 503 A.2d 400, 404 (Pa.
1986); Garrison v. Dep’t of Corr., 16 A.3d 560, 564 (Pa. Cmwlth. 2011)).



          6
          Similarly, the Disability Rights Network Agreement is not a statute or a constitutional
provision. As such, and as pled here, it does not underlie a cognizable federal right that may form
the basis for a Section 1983 claim. Yount v. Dep’t of Corr., 886 A.2d 1163 (Pa. Cmwlth. 2005).
Further, Rawlings did not connect Respondents to the alleged Agreement violations. Therefore,
his allegation that Respondents violated the Agreement does not state a claim under Section 1983.


                                                7
             Moreover, while Rawlings asserts that his misconduct report did not
show he was on the mental health roster or reflect his stability code, he does not allege
he was somehow precluded from raising these facts on his own behalf at his hearing.
In this respect, he fails to causally connect the alleged deficiencies to his alleged harm.
This lapse in pleading also raises the questions of whether the issue was preserved and
whether Rawlings exhausted his administrative remedies.


             Therefore, we agree with DOC that Rawlings fails to state a Section
1983 claim for alleged violation of the Policy. Accordingly, to the extent his Petition
claims violations of due process rights predicated on the Policy, it is dismissed.


                          B. Lack of Personal Involvement
             Next, we examine DOC’s objection that Rawlings fails to plead
sufficient personal involvement against either named Respondent.


             In a civil rights claim under Section 1983, a state official must have
direct involvement in the violation of constitutional or statutory law. Anelli v.
Arrowhead Lakes Cmty. Ass’n, Inc., 689 A.2d 357 (Pa. Cmwlth. 1997). Personal
involvement can be shown through allegations of personal direction or of actual
knowledge and acquiescence. Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988).
Such allegations “must be made with appropriate particularity.”              Id. at 1208
(citations omitted).


             Although allegations of personal direction may suffice, allegations that
Respondents had supervisory responsibility are insufficient. Fortune v. Wetzel (Pa.



                                            8
Cmwlth., No. 644 M.D. 2012, filed June 27, 2013) (unreported), 2013 WL 3270885,
at *2 (quoting Rode, 845 F.2d at 1207). “Because vicarious liability is inapplicable
to ... [Section] 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the
Constitution.” Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003).


             “[P]articipation in the after-the-fact review of a grievance or appeal is
not enough to establish personal involvement for purposes of §1983.” Martin v.
Giroux (Pa. Cmwlth., No. 1934 C.D. 2016, filed May 26, 2017) (unreported), 2017
WL 2303362, at *4 (citations omitted); see Simonton v. Tennis, 437 Fed. Appx. 60,
62 (3d Cir. 2011) (holding “bare allegation of ‘rubber stamping’” or an official’s
secondary review of inmate’s grievance or appeal “does not suffice to establish a
cognizable constitutional violation.”); Atwell v. Lavan, 557 F. Supp. 2d 532, 547
(M.D. Pa. 2008). Such after-the-fact awareness does not show firsthand knowledge.
             Rawlings’ Petition does not meet this particularity standard. His most
specific averment states:

             Respondents also knows [sic] or is [sic] deliberately indifferent
             to these effects [of the RHU on the wellbeing of [Rawlings’
             mental illness] through grievances and request slips submitted by
             [Rawlings]. Furthering the knowledge and awareness that
             [Rawlings] have [sic] been subjected to an excessive period of
             isolation, causing more harm to his mental health.

Pet. at ¶35. Rawlings also avers Respondents were deliberately indifferent to the
effects of the RHU on his well-being, in light of his mental illness. Id. at ¶33.


             Significantly, Rawlings does not allege personal knowledge or
involvement of either Respondent in the alleged violations.          Allegations that


                                          9
Respondents became aware of alleged violations from their subsequent review of
grievances or request slips for treatment do not suffice. Rode. Accordingly, we
sustain Respondents’ preliminary objection to lack of personal involvement.


                              C. Sufficiency of Claims
             Lastly, we address the overall merit of Rawlings’ constitutional and
statutory claims to assess whether he pleads sufficient facts to grant relief.


             Specifically, as to his deliberate indifference claim, Rawlings did not
allege Respondents had the requisite subjective intent. Kretchmar; Spruill v. Gillis,
372 F.3d 218, 237 (3d Cir. 2004) (plaintiff needs to “connec[t] his factual allegations
to the alleged mental states” of respondents). He did not plead Respondents had a
“state of mind akin to criminal recklessness” as required. Tindell, 87 A.3d at 1039.
He only pled they had knowledge and awareness of his medical need. Pet. at ¶33-35.


             Further, Rawlings does not state a deliberate indifference medical care
claim as a result of Respondents’ denial of his grievances or requests for treatment.
Spruill; Atwell. “[M]ere disagreement as to the proper medical treatment is also
insufficient” to state a claim for deliberate indifference. Spruill, 372 F.3d at 235.
             To the extent Rawlings asserts his continued housing in the RHU
violates his Eighth Amendment rights, his claim lacks merit.            Relevant here,
Rawlings did not plead a sufficiently serious medical need to be exempt from RHU
disciplinary custody. Housing in RHUs and isolation cells alone has not been held
to violate the Eighth Amendment ban on cruel and unusual punishment. Tindell.




                                          10
               Moreover, “it is entirely a matter of [DOC’s] discretion where to house
an inmate.” Clark v. Beard, 918 A.2d 155, 160 (Pa. Cmwlth. 2007). Pursuant to
DOC regulation, an “inmate does not have a right to be housed in a particular facility
or in a particular area within a facility.” 37 Pa. Code §93.11.


               In the interest of completeness, we address the legal sufficiency of
Rawlings’ ADA claim. The entirety of his ADA claim consists of two general
paragraphs, Nos. 48-49. Rawlings did not allege any facts from which it may be
inferred that he was subject to discrimination by reason of his alleged mental health
disability. He also did not allege discrimination by a public entity. Under the ADA,
individuals have no liability because they are not “public entities.” Watson v. Dep’t
of Corr., 990 A.2d 164 (Pa. Cmwlth. 2010) (citing Taylor v. Altoona Area Sch. Dist.,
513 F.Supp.2d 540 (W.D. Pa. 2007)). Accordingly, Rawlings cannot state an ADA
claim against Respondents.


               In sum, Rawlings fails to state a claim under Section 1983 for a
constitutional or statutory violation. Because the Petition is legally deficient to state
claims against the named Respondents, we sustain DOC’s demurrer.


                                       III. Conclusion
               For the foregoing reasons, the preliminary objections are sustained, and
we conclude that Rawlings’ Petition fails to state a cognizable claim. Accordingly,
the Petition is dismissed.7

       7
          Although his Petition alludes to requests for equal treatment, Rawlings does not allege
sufficient facts to state an equal protection claim. To the contrary, he pled the opposite, noting
that “prisoners with mental illness often languish in [RHUs], deteriorate mentally and suffer
terribly.” Pet. at ¶30.

                                               11
ROBERT SIMPSON, Judge




 12
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brehon Rawlings,                        :
                        Petitioner      :
                                        :
            v.                          :   No. 562 M.D. 2016
                                        :
John Wetzel, Secretary of D.O.C         :
Robert Gilmore, Superintendent at       :
SCI-Greene,                             :
                         Respondents    :


                                     ORDER
            AND NOW, this 20th day of October, 2017, Respondents’ preliminary
objections are SUSTAINED, and the petition for review is DISMISSED.




                                       ROBERT SIMPSON, Judge
