        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dwayne Jones,                             :
                                          :
                   Petitioner             :
                                          :
            v.                            :   No. 201 M.D. 2016
                                          :   Submitted: June 24, 2016
Pennsylvania Department of                :
Corrections,                              :
                                          :
                   Respondent             :



BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                     FILED: August 26, 2016

            This matter is a pro se petition for review filed in our original
jurisdiction by Dwayne Jones (Inmate), an inmate currently incarcerated at the
State Correctional Institution-Mahanoy, seeking a declaratory judgment against the
Pennsylvania Department of Corrections (DOC) concerning its handling of mail
that he receives from the Philadelphia District Attorney’s Office (District
Attorney’s Office). The DOC has filed a preliminary objection in the nature of a
demurrer to the petition for review. For the reasons set forth below, we sustain the
DOC’s demurrer and dismiss this action.
               Inmate alleges in his petition for review that correspondence that he
received from the Appeals Unit of the District Attorney’s Office on November 30,
2015 had been opened outside of his presence. (Petition for Review ¶5 & Exhibit
B.)1 Inmate filed a grievance concerning this incident, which was denied on the
grounds that the envelope in question did not bear a control number, as is required
for mail from an attorney to be treated as privileged under DOC policy DC-ADM
803, and because mail from a district attorney is not considered privileged mail.
(Petition for Review ¶¶4, 6-8 & Exhibits A, C, D.) Inmate alleges that opening
mail from the District Attorney’s Office outside his presence infringes his
constitutional rights to receive confidential legal communications and seeks a
declaratory judgment that the DOC must treat correspondence from district
attorney’s offices as privileged mail that can only be opened in the inmate’s
presence. (Petition for Review at 2-3 & ¶9.) Inmate, however, does not allege that
the mail in question was marked with a control number or that the DOC has a
practice of opening mail that bears an attorney’s control number outside of his
presence. Instead, he asserts that mail from a district attorney’s office is privileged
legal mail, regardless of whether it bears any designation that it is confidential.
(Id. ¶¶9, 10; Petitioner’s Br. at 1-2.)
               The DOC contends that Inmate’s claim does not state a legally
cognizable cause of action. We agree.


1
  In ruling on a demurrer, this Court must accept as true all well-pleaded allegations of material
facts in the petition for review, as well as all of the inferences reasonably deducible from those
facts. Black v. Pennsylvania Department of Corrections, 889 A.2d 672, 675 n.5 (Pa. Cmwlth.
2005). The Court, however, is not required to accept as true conclusions of law, unwarranted
inferences, argumentative allegations, or expressions of opinion. Dodgson v. Pennsylvania
Department of Corrections, 922 A.2d 1023, 1028 (Pa. Cmwlth. 2007).



                                                2
              Prison inmates have a right, under the First and Fourteenth
Amendments to the United States Constitution, to send and receive confidential
legal correspondence, which right may be restricted based on legitimate
penological interests. Brown v. Pennsylvania Department of Corrections, 932
A.2d 316, 319 (Pa. Cmwlth. 2007); Jones v. Brown, 461 F.3d 353, 358-60 (3d Cir.
2006). Opening all legal mail outside of the inmate’s presence, regardless of its
confidentiality, violates that constitutional right where there is no reasonable basis
to conclude that opening confidential legal mail to inspect for contraband in the
inmate’s presence would create a prison security risk. Brown, 932 A.2d at 319-20;
Jones, 461 F.3d at 358-63. A prison system, however, may constitutionally require
that confidential mail be clearly identified as such on its face and open mail that
does not comply with such an identification requirement outside the inmate’s
presence. Brown, 932 A.2d at 320-22; Fontroy v. Beard, 559 F.3d 173, 178-84 (3d
Cir. 2009).
              The DOC’s regulations and policies provide a means by which
confidential legal mail can be protected from inspection outside of the inmate’s
presence.     DOC policy DC-ADM 803 provides that “[i]ncoming privileged
correspondence will be opened and inspected for contraband in the presence of the
inmate to whom it is addressed.” DC-ADM 803 Procedures Manual § 2(B)(1). To
be treated as privileged, incoming mail from attorneys, other than mail hand-
delivered by the attorney to the prison, must have a control number issued by the
DOC on the envelope. 37 Pa. Code § 93.2(c)(1)(ii); DC-ADM 803 Procedures
Manual Glossary of Terms at 3-4 § 2. Attorneys may obtain from the DOC a
control number that they agree to use only for confidential communications with




                                          3
inmates.    37 Pa. Code § 93.2(c)(1)(ii)(A); DC-ADM 803 Procedures Manual
Glossary of Terms at 1.
               This policy of requiring that confidential communications bear a
DOC-assigned control number and opening and inspecting other inmate mail from
attorneys outside the inmate’s presence is justified by legitimate prison security
interests and does not violate inmates’ constitutional rights. Brown, 932 A.2d at
320-22; Fontroy, 559 F.3d at 178-84. The fact that correspondence is from a
district attorney’s office does not justify an exemption from the requirement that
incoming mail be marked with a control number in order to be treated as
privileged. Because a district attorney is ordinarily the inmate’s opposing counsel,
most communications between an inmate and a district attorney’s office are not
confidential at all and opening that mail outside the inmate’s presence does not
raise constitutional concerns. See Samonte v. Maglinti, (D. Haw., Civ. No. 05–
00598, filed July 3, 2007) 2007 WL 1963697 at *6. It is therefore constitutionally
permissible for the DOC to apply the same requirements for privileged treatment to
incoming correspondence from district attorneys’ offices that it applies to other
attorney mail that is more likely to be confidential.2
               Inmate argues that mail from district attorneys’ offices must be treated
as privileged without a control number because DC-ADM 803 provides that mail
sent by inmates to elected officials, including district attorneys, is privileged. See


2
   We recognize that there are some circumstances where communications between an inmate
and a district attorney’s office could be confidential rather than adversarial, for example, where
the inmate is the complainant or a witness in a criminal prosecution against another person.
Inmate, however, does not allege in his petition for review that the mail here, from the Appeals
Unit of the District Attorney’s Office, involved such a communication or that the DOC does not
provide a mechanism by which a district attorney’s office can designate correspondence with an
inmate as confidential and prevent its opening outside the inmate’s presence.


                                                4
DC-ADM 803 Procedures Manual Glossary of Terms at 3 § 1(a). We do not agree.
Incoming mail, unlike outgoing mail, must be inspected for contraband to protect
prison security and it is this security threat that permits the DOC to require a
control number and inspect all other incoming attorney mail outside the inmate’s
presence. Brown, 932 A.2d at 320-22; Fontroy, 559 F.3d at 178-84.
             As noted above, Inmate does not contend that the mail at issue from
the District Attorney’s Office had a control number or any indication of
confidentiality on the envelope. The DOC’s opening of this mail to inspect for
contraband outside Inmate’s presence therefore did not violate Inmate’s
constitutional rights.
             Accordingly, we sustain the DOC’s preliminary objection and dismiss
Inmate’s petition for review.


                                   ______________________________________
                                   JAMES GARDNER COLINS, Senior Judge




                                       5
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dwayne Jones,                           :
                                        :
                  Petitioner            :
                                        :
            v.                          :   No. 201 M.D. 2016
                                        :
Pennsylvania Department of              :
Corrections,                            :
                                        :
                  Respondent            :


                                   ORDER


            AND NOW, this 26th day of August, 2016, the preliminary objection
in the nature of a demurrer filed by the Pennsylvania Department of Corrections is
SUSTAINED, and the petition for review filed by Dwayne Jones is DISMISSED.




                                  _______________________________________
                                   JAMES GARDNER COLINS, Senior Judge
