          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alton D. Brown,                                :
                              Petitioner       :
                                               :
               v.                              :   No. 318 M.D. 2015
                                               :   Submitted: April 8, 2016
John E. Wetzel,                                :
                              Respondent       :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                               FILED: September 9, 2016


               Before this Court are the preliminary objections filed by John E.
Wetzel, Secretary (Respondent) of the Department of Corrections (DOC) to a
petition for review in the nature of mandamus (Petition) filed by Alton D. Brown
(Petitioner), an abusive litigator and state prison inmate representing himself. For
the reasons set forth below, we sustain Respondent’s preliminary objections and
dismiss the petition for review.


                                       I. Background
               In response to a request under the Right to Know Law (RTKL)1 by
Petitioner to the Pennsylvania Department of Environmental Protection (DEP),
DEP granted access to records concerning two state correctional facilities. See Pet.


      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101–67.3104.
for Review at ¶4. Pursuant to Petitioner’s averments, those DEP records pertained
to water inspection reports for the state correctional facilities filed as a result of
DEP inspections. Id.


              Upon receipt of the package containing the DEP records at the state
correctional facility where Petitioner is currently housed, DOC confiscated the
package. After holding the package for three weeks, Petitioner was informed he
had to send the package back out of the facility, or the package would be
destroyed. Id. at ¶5.


              In response to DOC’s confiscation of the package, Petitioner filed a
grievance on the bases that: his rights under the RTKL were violated; DOC did not
give Petitioner a reason for the confiscation; and, the manner in which DOC
confiscated and held the package violated DOC’s policies. Id. at ¶6. DOC denied
Petitioner’s grievance at all levels. Thereafter, Petitioner filed his Petition with
this Court.


              In his Petition, Petitioner alleges that none of the grievance responses
provided justification as to why the inspection reports constitute contraband, and
he asserts the inspection reports “were sought as a part of his ongoing investigation
into … drinking water contamination.” Id. at ¶9. According to Petitioner, by
confiscating the package containing the inspection reports, Respondent and his
agents intentionally violated Petitioner’s rights under the RTKL and in doing so,
violated his due process and equal protection rights under the Fourteenth
Amendment of the U.S. Constitution. Id. at ¶12.



                                          2
             Respondent filed preliminary objections asserting this Court should
dismiss Petitioner’s request for relief because he has not established a clear legal
right to the relief requested, and DOC’s grievance process provided a
constitutionally adequate remedy to address Petitioner’s property deprivation.
Respondent further asserts that this Court should dismiss his Petition under
Pennsylvania’s statute known as the Prison Litigation Reform Act (PLRA), 42 Pa.
C.S. §§6601-08, because Petitioner is an abusive litigator.


             In response to the preliminary objections, Petitioner argues he filed
his Petition in this Court’s appellate and original jurisdictions, with claims
“grounded and authorized” by the RTKL. Pet’r’s Br. in Resp. to Resp’t’s Prelim.
Objections at 2.     Petitioner asserts Section 1301(a) of the RTKL, 65 P.S.
§67.1301(a), authorizes this Court to “require” a governmental agency to produce
requested documents.


                                     II. Issues
             Respondent states two issues.        First, Respondent asks whether
Petitioner’s request for mandamus relief should be dismissed, where he is seeking
return of a package of records confiscated from him through the exercise of DOC
discretion due to security concerns, and where DOC’s grievance process provided
a constitutionally adequate remedy. Second, Respondent questions whether the
Petition should be dismissed because Petitioner is an abusive litigator and his
allegations do not indicate that he is in imminent danger of serious bodily injury.


             Petitioner states two different issues: (1) whether preliminary
objections raising “original jurisdiction” arguments for dismissal are appropriate in

                                          3
this matter, where the case was filed in the Court’s appellate jurisdiction, and
where the Court is confined to the provisions of the RTKL in both its original and
appellate jurisdictions; and, (2) whether the PLRA applies to matters filed pursuant
to the RTKL.


                                  III. Contentions
             Respondent argues that DOC’s decision to confiscate reports related
to air, water, and waste water monitoring and reporting for two state correctional
facilities due to security concerns should be afforded deference.         Respondent
asserts Petitioner cannot show that he has an established right, in the prison setting,
to receive the records. Given that DOC’s grievance procedures are available to
Petitioner, and Petitioner availed himself of the process, he cannot sustain a civil
rights claim regarding the confiscation.


             More importantly, Respondent insists, the Court recognizes Petitioner
as an abusive litigator. Because his allegations do not show that he is in any
“imminent danger,” this prison conditions litigation should be dismissed.


             Petitioner argues that the Petition clearly reflects that it was filed
under the Court’s appellate and original jurisdiction. He cites Section 1301(a) of
the RTKL, 65 P.S. §67.1301(a). He also cites Sections 1304 and 1305 of the
RTKL, 65 P.S. §§67.1304, 67.1305, which, according to Petitioner, authorize the
Court to require a governmental agency to produce requested documents, and to
sanction parties under certain circumstances.




                                           4
             Petitioner also argues that the PLRA does not apply to a RTKL matter
because the RTKL does not constitute “prison conditions litigation,” as defined in
the PLRA. Also, a RTKL matter does not have an effect on Petitioner’s prison
life. Further, even if the PLRA applies, this Court should exercise its discretion to
allow the case to proceed since Respondent acted in bad faith, the issue effects the
whole prison population, and a decision on the merits is consistent with legislative
intent behind the RTKL.


                                   IV. Discussion
                                   A. Mandamus
             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).                However,
conclusions of law and unjustified inferences are not so admitted. Allen v. Dep’t
of Corr., 103 A.3d 365 (Pa. Cmwlth. 2014). A demurrer must be sustained where
it is clear and free from doubt that the law will not permit recovery under the
alleged facts. Id.


             A proceeding in mandamus is an extraordinary remedy at common
law, designed to compel the performance of a ministerial act or mandatory duty.
McCray v. Dep’t of Corr., 872 A.2d 1127 (Pa. 2005); Detar v. Beard, 898 A.2d 26
(Pa. Cmwlth. 2006). “The purpose of mandamus is not to establish legal rights,
but to enforce those rights already established beyond peradventure.” Detar, 898
A.2d at 29. “Furthermore, this Court may only issue a writ of mandamus where
the inmate possesses a clear legal right to enforce the performance of a ministerial
act or mandatory duty, the defendant possesses a corresponding duty to perform


                                          5
the act, and the inmate possesses no other adequate or appropriate remedy.”
Cunningham v. Dep’t of Corr., 990 A.2d 1205, 1207 (Pa. Cmwlth. 2010). If any
one of the foregoing elements is absent, mandamus does not lie. Nickson v. Pa.
Bd. of Prob. & Parole, 880 A.2d 21 (Pa. Cmwlth. 2005). Mandamus will not be
granted in doubtful cases. Id.


               “It is axiomatic that mandamus will issue only to compel an officer or
agency to perform a purely ministerial duty.” Citizens Committee to Recall Rizzo v.
Bd. of Elections of City & Cnty. of Phila., 367 A.2d 232, 236 (Pa. 1976). “It is
well-settled that mandamus will never lie to compel a review of a decision of … [a]
person invested with discretion ….” Id. (citations omitted).


               DOC’s decision to confiscate records from a current inmate relating to
air, water and waste water monitoring of infrastructure at two state correctional
facilities clearly relates to an internal security matter within the discretion of DOC.
See Small v. Horn, 722 A.2d 664 (Pa. 1998) (DOC must enforce reasonable rules of
internal prison management to insure public safety and prison security); Bronson v.
Central Office Review Committee, 721 A.2d 357 (Pa. 1998) (same); Bundy v.
Beard, 924 A.2d 723 (Pa. Cmwlth. 2007) (sustaining demurrer to petition seeking
declaratory relief; DOC confiscated Uniform Commercial Code2 (UCC) filing
documents). Because the Petition improperly seeks to compel action by persons
vested with discretion, mandamus will not lie to compel the release of the
confiscated material.


      2
          Act of April 16, 2008, P.L. 57, 13 Pa. C.S.A. §§1101-9809.



                                                6
            Moreover, Petitioner has not established a clear right to possess the
confiscated material in prison. That the material at issue was obtained through a
RTKL request does not alter our analysis. An inmate does not have the same right
to possess records as a non-incarcerated citizen. As this Court previously stated
(with emphasis added):

                   Requester [inmate] argues that, as a requester of
            documents under the RTKL, he stands in the position of the
            public at large, per Pennsylvania State University v. State
            Employees’ Retirement Board, [935 A.2d 530, 537 (Pa. 2007)],
            and that his status as an inmate should not be taken into
            account. We do not agree. Initially, we note that Pennsylvania
            State University stands for the principle that ‘[w]hen the media
            requests disclosure of public information from a
            Commonwealth agency pursuant to the [RTKL], the requester
            then stands in the shoes of the general public.’ Id. Inmates do
            not enjoy the same ‘panoply of rights’ as non-incarcerated
            citizens. Bronson [v. Central Office Review Committee, 554
            721 A.2d 357, 359 (Pa. 1998)] (quoting Robson v. Biester, 420
            A.2d 9, 12 (Pa. Cmwlth. 1980)[)]. Disclosure of the first names
            of corrections officers to the general public might not pose the
            same risk of harm as disclosure of those names to an inmate.
            We note that, even if we were to hold that Requester was
            entitled to the corrections officers' first names under the RTKL,
            [DOC] could still prohibit Requester from receiving this
            information. See Bundy v. Beard, 924 A.2d 723 (Pa. Cmwlth.
            2007) (An inmate obtained [UCC] filing forms through a right-
            to-know request to the Pennsylvania Department of State, and
            this Court upheld a Department policy prohibiting inmates from
            receiving UCC materials under a rational basis test, on the basis
            that prohibiting the receipt of the materials furthered a
            legitimate penological purpose).            We, therefore, reject
            Requester’s position that this Court should disregard the fact
            that he is an inmate seeking information about the corrections
            officers at the facility where he is incarcerated.




                                        7
Stein v. Office of Open Records, (Pa. Cmwlth., No. 1236 C.D. 2009, filed May 19,
2010) (per curiam), slip op. at 10-11, 2010 WL 9511502 at *5 (unreported).3


              Finally, we observe that Petitioner is not without a remedy.                  His
remedy is in the grievance process, which he fully pursued. Inmates cannot bring a
civil rights action under 42 U.S.C. §1983 to vindicate a right to property where
adequate post-deprivation remedies exist under state law. Hudson v. Palmer, 468
U.S. 517 (1984) (unauthorized intentional deprivation of property by prison guard
did not constitute violation of due process clause because meaningful post-
deprivation remedies for the loss were available under state law). Our courts
recognize that DOC’s grievance process is constitutionally adequate. McEachin v.
Beard, 319 F.Supp. 2d 510 (E.D. Pa. 2004); Waters v. Dep’t of Corr., 509 A.2d 430,
433 (Pa. Cmwlth. 1986) (DOC’s “inmate grievance review system provides an
adequate and meaningful legal remedy ….”).


              Accordingly, Respondent’s demurrer is sustained.


                                B. Dismissal under PLRA
              Petitioner’s status as an abusive litigator as defined in the PLRA is
well-established. See Brown v. Levy, 993 A.2d 364 (Pa. Cmwlth. 2010); Brown v.
Pa. Dep't of Corr., 913 A.2d 301, 306 (Pa. Cmwlth. 2006) (“[Petitioner] is a well-
qualified abusive litigator within the meaning of the PLRA.”), appeal denied, 918
A.2d 748 (Pa. 2007); Brown v. James, 822 A.2d 128 (Pa. Cmwlth. 2003) (listing
       3
         Section 414 of this Court’s Internal Operating Procedures authorizes the citation of
unreported panel decisions issued after January 15, 2008, for their persuasive value, but not as
binding precedent. 210 Pa. Code §69.414.



                                               8
Pennsylvania and federal cases filed by Petitioner which were dismissed as
frivolous), appeal denied, 848 A.2d 930 (Pa. 2004).


             In fact, Petitioner does not dispute the fact he is an abusive litigator:
“It is undisputed Petitioner has previously filed more than three prison conditions
litigation actions that have been dismissed.” Pet’r’s Br. in Resp. to Resp’t’s
Prelim. Objections at 6.


             However, a court may not dismiss a prisoner’s prison conditions
complaint based solely on the prior dismissals of other complaints. See Lopez v.
Haywood, 41 A.3d 184 (Pa. Cmwlth. 2012). In accord with Lopez, a prisoner may
still proceed with prison conditions litigation as long as he pays the required filing
fees and costs, and the action does not violate Section 6602(e)(2) of the PLRA,
which provides:

             (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:

                                       ****

             (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.

42 Pa. C.S. §6602(e)(2) (emphasis added).




                                          9
             Based on our decision that Petitioner fails to state a claim for
mandamus relief, we conclude that his Petition violates Section 6602(e)(2) of the
PLRA if it qualifies as “prison conditions litigation.”


             “Prison conditions litigation” is defined in Section 6601 of the PLRA
as “[a] civil proceeding arising in whole or in part under Federal or State law with
respect to the conditions of confinement or the effects of actions by a government
party on the life of an individual confined in prison. The term includes an appeal.”
42 Pa. C.S. §6601.


             We conclude that this Petition qualifies as “prison conditions
litigation” within the statutory definition. Petitioner seeks return of his property
confiscated by DOC. Also, he allegedly plans to use the confiscated records to
continue his investigation into drinking water contamination at a state correctional
facility. Further, he avers improper retaliatory transfer. Pet. for Review at ¶¶2, 13.
Because the Petition fails to state a claim for mandamus relief, and thereby violates
Section 6602(e)(2) of the PLRA, dismissal is required.


             There is another limitation on a court’s authority to dismiss prison
conditions litigation under the PLRA. Section 6602(f)(2), 42 Pa. C.S. §6602(f)(2),
provides that a court shall not dismiss a request for preliminary injunctive relief or
a temporary restraining order which makes a credible allegation that the prisoner is
in imminent danger of serious bodily injury.




                                          10
              This limitation on a court’s ability to dismiss under the PLRA does
not apply here. Petitioner does not seek a preliminary injunction or a temporary
restraining order. Also, Petitioner makes no averment that he is in imminent
danger of serious bodily injury.4


              Finally, we reject Petitioner’s claim that this case is controlled by the
RTKL and not by the PLRA. The RTKL does not enhance Petitioner’s right to
possess material while in prison; rather, DOC internal security decisions control.
Operation of the RTKL ceased once a Commonwealth agency (DEP) complied
with Petitioner’s RTKL request and produced the documents for him. At that
point, the General Assembly’s intent in enacting the RTKL was fully realized as to
Petitioner’s request.


                                      C. Jurisdiction
              We reject Petitioner’s claim that his action could be filed in both this
Court’s appellate and original jurisdiction.          Instead, we accept Respondent’s
assertion that this matter is within the Court’s original jurisdiction because it is a




       4
          In a prior action, Petitioner’s bodily injury claim was rejected as not sufficiently
“imminent.” Brown v. Beard, 11 A.3d 578, 581-582 (Pa. Cmwlth. 2010) (Petitioner alleged he
was in imminent danger of serious bodily injury if he was sent back to his previous state
correctional facility, because he might be subjected to the same mistreatment he was allegedly
subjected to previously; Court held if Petitioner's complaint was allowed to proceed under
Section 6602(f) of the PLRA, 42 Pa. C.S. §6602(f), the “imminent” exception would swallow the
rule and the General Assembly's use of the word “imminent” would be rendered meaningless.)
In the current matter, we have no reason to believe Petitioner can credibly cure this same
argument by amending his pleading.




                                             11
proceeding brought by Petitioner against a Commonwealth party, the Secretary of
DOC. 42 Pa. C.S. §761(a)(1).


             Section 1301(a) of the RTKL, 65 P.S. §67.1301(a), allows a party to
file a petition for review in the Commonwealth Court “[w]ithin 30 days of the
mailing date of the final determination of the appeals officer relating to a decision
of a Commonwealth agency … or the date a request for access is deemed denied
….” Petitioner fails to identify any final determination of an appeals officer
relating to a decision of a Commonwealth agency or any date access was deemed
denied. Indeed, based on the averments in the Petition, there were no decisions by
a RTKL appeals officer which were adverse to Petitioner. Therefore, Petitioner
fails to explain how the authorization of Section 1301(a) of the RTKL applies to
him.


             Moreover, there is no other provision in the RTKL which authorizes
Petitioner to “appeal” to this Court. The other Sections of the RTKL cited by
Petitioner, Sections 1304 and 1305, relate to remedies: court costs, attorney fees
and civil penalties. 65 P.S. §§67.1304, 67.1305. These sections do not authorize
the initiation of an appeal.


             Further, Petitioner does not identify any other statute which authorizes
his “appeal.” In the absence of statutory authority for Petitioner’s “appeal,” we
conclude that the Petition was filed solely in this Court’s original jurisdiction
pursuant to 42 Pa. C.S. §761(a)(1).




                                         12
             This conclusion is consistent with our Supreme Court’s decision in
Bronson. In Bronson, our Supreme Court addressed confiscation of inmate civilian
clothing. The Court held in part the Commonwealth Court does not have appellate
jurisdiction over inmate appeals of decisions by intra-prison disciplinary tribunals,
such as grievance and misconduct appeals. The Court said:

             [I]nternal prison operations are more properly left to the
             legislative and executive branches, and . . . prison
             officials must be allowed to exercise their judgment in
             the execution of policies necessary to preserve order and
             maintain security free from judicial interference. [See
             Robson, 420 A.2d at 12] (citing Bell v. Wolfish, [441
             U.S. 520 (1979)]). We agree. Unlike the criminal trial
             and appeals process where a defendant is accorded the
             full spectrum of rights and protections guaranteed by the
             state and federal constitutions, and which is necessarily
             within the ambit of the judiciary, the procedures for
             pursuing inmate grievances and misconduct appeals are a
             matter of internal prison administration and the “full
             panoply of rights due a defendant in a criminal
             prosecution is not necessary in a prison disciplinary
             proceeding. . . .” [Robson, 420 A.2d at 12] (citing Wolff
             v. McDonnell, [418 U.S. 539 (1974)]).

Bronson, 721 A.2d at 358-59.        Thus, Petitioner cannot “appeal” the adverse
determinations on his confiscation grievance to this Court, which is essentially
what he is trying to do.


                                   V. Summary
             For all of the above-stated reasons, we sustain Respondent’s
preliminary objections and dismiss the Petition.



                                       ROBERT SIMPSON, Judge


                                         13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton D. Brown,                       :
                       Petitioner     :
                                      :
           v.                         :   No. 318 M.D. 2015
                                      :
John E. Wetzel,                       :
                       Respondent     :


                                    ORDER


           AND NOW, this 9th day of September, 2016, the preliminary
objections filed by Respondent John E. Wetzel are SUSTAINED and the petition
for review filed by Alton D. Brown is DISMISSED with prejudice.




                                     ROBERT SIMPSON, Judge
