          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lamont Bullock,                        :
                        Petitioner     :
                                       :
                  v.                   :   No. 375 M.D. 2016
                                       :   Submitted: June 16, 2017
The Pennsylvania Department of         :
Corrections and The Medlin Training    :
Institute,                             :
                       Respondents     :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                       FILED: September 28, 2017


      Lamont Bullock (Bullock), pro se, filed an amended petition for review in
the nature of a complaint in mandamus with exhibits (Amended Petition) in this
Court’s original jurisdiction against The Pennsylvania Department of Corrections
(Department) and The Medlin Training Institute (Medlin).      Bullock asserts a
number of allegations against the Department and Medlin regarding his mental
health diagnosis, involuntary psychiatric commitment, cell ventilation systems,
various abuse and retaliation, improper training of Department employees,
exposure to disease, denial of medical treatment, improper charges to his inmate
account, and forced double-celling. The Department filed a preliminary objection
to Bullock’s Amended Petition, asserting the misjoinder of six separate causes of
action in a single suit. Medlin also filed preliminary objections to the Amended
Petition, joining in the Department’s preliminary objection and asserting that the
Amended Petition should be dismissed because this Court lacks both subject matter
and personal jurisdiction over Medlin, which is a private entity. Medlin also
demurs that the Amended Petition is legally insufficient.               After review, we
overrule in part and sustain in part Medlin’s preliminary objections and dismiss the
Amended Petition without prejudice as to Medlin. We overrule the Department’s
preliminary objection.


I.    Background
      Bullock is an inmate currently incarcerated at the State Correctional
Institution at Greene (SCI-Greene).          Bullock instituted this action by filing a
petition for review in the nature of a complaint in mandamus against the
Department on June 20, 2016. Bullock also filed an application to proceed in
forma pauperis. The Department moved to revoke Bullock’s in forma pauperis
status, which this Court granted via order dated September 16, 2016. However,
Bullock timely paid the filing fee as directed by that order.1 The Department



      1
          The September 16, 2016 order noted that Bullock

      has previously had at least three cases dismissed on the basis that they were
      frivolous: Bullock v. Grove, C.A. 90-5311, dismissed as frivolous by order dated
      November 30, 1990; Bullock v. Jadlocki, C.A. 92-612, dismissed as frivolous by
      order dated March 25, 1993; Bullock v. Rupert, C.A. 99-3660, dismissed as
      frivolous by order dated May 10, 2000; Bullock v. Horn, C.A. 01-2428, motion to
      proceed in forma pauperis denied due to his status as an abusive litigator.

(Footnote continued on next page…)


                                               2
thereafter filed a preliminary objection, which was dismissed as moot by this
Court’s December 5, 2016 order because Bullock filed the Amended Petition on
November 21, 2016.
       Bullock filed the Amended Petition against the Department and added
Medlin as a defendant.2 The Amended Petition contains six counts and a number
of documents attached as exhibits.3               In Count I, Bullock alleges that the
Department falsified and fabricated his mental health diagnosis and Stability Code-
D designation and subjected him to involuntary psychiatric commitment and
transfer to a Department mental health facility without due process of law in
violation of the First, Eighth, and Fourteenth Amendments of the United States
Constitution and Article I, Sections 9, 13, and 14 of the Pennsylvania Constitution.
(Amended Petition ¶¶ 4-5, 11, 14.) In this regard, he also asserts that he was
retaliated against for filing civil actions and grievances against Department
employees. (Id. ¶¶ 13, 21-22.)
       In Count II, Bullock asserts that the Department subjected him to conditions
of confinement that constitute cruel and unusual punishment in violation of the
Eighth Amendment of the United States Constitution and the Thirteenth
Amendment of the Pennsylvania Constitution. (Id. ¶ 66.) Specifically, he avers

_____________________________
(continued…)
(Order, Sept. 16, 2016.) The order also stated that Bullock did not allege that he was in
imminent danger of serious physical injury, citing Section 6602(f)(2) of the Prison Litigation
Reform Act (PLRA), 42 Pa. C.S. § 6602(f)(2).
       2
         Both the Department and Medlin are listed as Respondents in the caption of the
Amended Petition.
       3
         Bullock has attached to the Amended Petition numerous official inmate grievances,
responses to grievances, requests to staff members, sick call requests, mental health informed
consent documents, physician’s order forms, a secure residential treatment unit recovery
treatment plan review, and a problem list.



                                              3
that the ventilation system in his cell is defective and, consequently, it has caused
him “to suffer and diagnosed [sic] with myriad of serious respiratory illness’s
[sic]” and has placed his “life in imminent danger of serious and ongoing future
danger of serious physical injury.” (Id. ¶¶ 66, 70.) He also asserts that he has
exhausted his administrative remedies to no avail, has no other adequate remedy at
law, and the Department has refused to house him in a safe prison environment.
(Id. ¶¶ 85-87.)
       In Count III, Bullock alleges that the Department retaliated against him by
exposing him to diseases and engaged in a conspiracy to deny him adequate sex
offender treatment, programming, and credits already earned in violation of “the
Sex Offenders Program Act,” 42 Pa. C.S. § 9718.1,4 with the specific intent to
deny him parole, all in violation of the Eighth Amendment. (Id. ¶¶ 93-96, 121-24,
126, 128, 132, 139.) Also in Count III, Bullock alleges that Medlin failed to
intervene with regard to his sex offender treatment and failed to properly train
Department employees. (Id. ¶¶ 91, 131.) Bullock contends that he notified Medlin
of these allegations by letter, he was retaliated against for filing civil actions and
grievances, and he has no other adequate remedy at law. (Id. ¶¶ 131, 137-38, 142.)
       In Count IV, Bullock again asserts that the Department deliberately exposed
him to poisons, such as arsenic, and diseases, including HIV, Hepatitis A, B, C,
and D, herpes simplex, syphilis, other sexually-transmitted diseases, tuberculosis,
cancers, asthma, bronchitis, and diabetes, via contaminated food and needles
because of his race and sex offender status in violation of the Eighth Amendment,

       4
         Section 9718.1(a) is actually a part of the Sentencing Code and provides that sex
offenders “shall attend and participate in a Department . . . program of counseling or therapy
designed for incarcerated sex offenders if the person is incarcerated in a State institution for any
of” a number of sexual offenses. 42 Pa. C.S. § 9718.1(a).



                                                 4
and, thus, subjected him “to imminent danger of serious physical danger.” (Id. ¶¶
144-45, 147-48, 151.) He also asserts that his grievances and complaints in this
regard were arbitrarily denied. (Id. ¶¶ 166, 168.)
      In Count V, Bullock asserts that he was denied proper medical treatment,
which caused complications with his diseases, and improperly charged his inmate
account for chronic and intermittent medical treatment co-pays in violation of the
Eighth Amendment and Department policy DC-ADM 820, codified at 37 Pa. Code
§ 93.12. (Id. ¶¶ 169, 171-72, 174-75.)
      Lastly, in Count VI, Bullock avers that the Department used forced double-
celling against him as punishment in violation of the Eighth Amendment, without
due process, and in violation of Department policies DC-ADM 820 and 13.8.1.
(Id. ¶ 181.) Bullock asserts that he developed post-traumatic stress disorder as a
result of being attacked by other inmates, and that there was a medical order that
required his permanent placement in a single cell. (Id. ¶¶ 182, 184, 191.) Bullock
also asserts that he has kidney/bladder complications and that other inmates with
the same condition receive single-cell status. (Id. ¶ 201.) Bullock asserts that
these medical conditions require that he be placed in a single cell. (Id. ¶¶ 200-01.)
Bullock asserts that the Department abused its discretion and that its actions
constitute deliberate indifference to Bullock’s serious medical needs and subject
him “to the danger of serious physical injury.” (Id. ¶ 204.)
      Based on these allegations, Bullock seeks a declaratory judgment with
respect to each of the six counts, as well as an order directing the Department to
remove his mental health diagnosis from his records (Count I); a permanent or
preliminary injunction directing his transfer to another prison with an adequate
ventilation system and enjoining the Department from any retaliatory transfer



                                          5
thereafter (Count II); an order prohibiting the Department from denying him access
to sex offender treatment and directing his transfer to another prison to complete
such treatment (Count III); an order directing that certain health tests be performed
and the results forwarded directly to this Court and holding the Department liable
for exposing him to diseases and denying him medical treatment (Count IV); an
order directing the reimbursement of the co-pay charges, with interest (Count V);
and a permanent injunction enjoining the Department’s use of double-celling with
respect to Bullock (Count VI). Bullock also requests an evidentiary hearing and
any other relief the Court deems appropriate and just.


II.   Respondents’ Preliminary Objections
      The Department filed its preliminary objection to Bullock’s Amended
Petition on December 29, 2016, asserting, pursuant to Pennsylvania Rule of Civil
Procedure 1028(a)(5), Pa. R.C.P. No. 1028(a)(5), that Bullock improperly joined
six separate causes of action in a single suit that do not appear to arise out of the
same transaction or occurrence.       The Department asserts that such tactic is
violative of the Prison Litigation Reform Act (PLRA)5 because it allows Bullock to
circumvent the PLRA filing fee requirements and “three strikes” limitations. The
Department requests that the Court direct Bullock to file a second amended
petition that includes claims that arise out of the same transaction or occurrence
and that does not violate the PLRA filing fee requirements.
      Medlin also filed preliminary objections, joining the Department’s
preliminary objection and asserting that this Court lacks both subject matter and


      5
          42 Pa. C.S. §§ 6601-6608.



                                         6
personal jurisdiction.6 Medlin contends that this Court lacks appellate jurisdiction7
under Section 763 of the Judicial Code, 42 Pa. C.S. § 763 (providing that this
Court has exclusive jurisdiction over appeals from government agencies), because
there are no allegations in the Amended Petition to support that Medlin ever issued
any final adjudications or orders regarding Bullock. According to Medlin, this
Court also lacks original jurisdiction under Section 761 of the Judicial Code, 42 Pa.
C.S. § 761 (providing that this Court has original jurisdiction over, inter alia, civil
actions or proceedings by or against the Commonwealth or any officer thereof),
because Medlin is a private company, not a government agency. Medlin also
objects on the basis that the Amended Petition is legally insufficient (demurrer)
pursuant to Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure, Pa.
R.C.P. No. 1028(a)(4). Specifically, Medlin asserts that the Amended Petition
does not allege that Medlin “owed any ministerial or mandatory duty to intervene
with [Bullock’s] confinement” and/or sex offender treatment or to correct the
Department’s actions or any other meritorious cause of action against Medlin.
(Medlin’s Preliminary Objections ¶ 37.)              Medlin asserts that Bullock has an
appropriate remedy at law because he could sue for a tort claim.
       Bullock filed a response to the Department’s objections and a brief8 in
support of his Amended Petition and in opposition to both the Department’s and



       6
          Medlin further asserts that it was never served with Bullock’s original petition for
review. It also asserts that there were no exhibits attached to the Amended Petition it received.
        7
          Bullock states that this Court has “appellant” (appellate) jurisdiction over the Amended
Petition pursuant to 42 Pa. C.S. § 763. (See Amended Petition, Jurisdictional Statement.)
        8
          Bullock attached three documents to his brief, including: an Initial Review Response
dated July 24, 2014, a Facility Manager’s Appeal Response dated August 25, 2014, and a Final
Appeal Decision dated October 31, 2014. These are also attached to the Amended Petition.



                                                7
Medlin’s preliminary objections.        The Department’s and Medlin’s preliminary
objections are now before the Court.


III.   Discussion
       A.       Jurisdiction
       We first decide whether this Court has jurisdiction over Bullock’s claims
against Medlin. Medlin asserts that because this Court has exclusive jurisdiction
over appeals from final orders of government agencies under Section 763(a)(1) of
the Judicial Code, 42 Pa. C.S. § 763(a)(1), which is limited to “Commonwealth
agencies,”9 and Medlin is a private company, not a government agency, this Court
lacks appellate jurisdiction. Medlin further asserts that because this Court has
original jurisdiction in civil actions against the Commonwealth government or its
officers under Section 761 of the Judicial Code, 42 Pa. C.S. § 761, and Medlin is a
private institution, this Court lacks original jurisdiction. Accordingly, Medlin
argues that its preliminary objection should be sustained and the Amended Petition
should be dismissed as to Medlin for lack of subject matter and personal
jurisdiction.
       Rule 1028(a)(1) of the Pennsylvania Rules of Civil Procedure provides that:

       [p]reliminary objections may be filed by any party to any pleading
       and are limited to the following grounds: (1) lack of jurisdiction over
       the subject matter of the action or the person of the defendant,
       improper venue or improper form or service of a writ of summons or a
       complaint.

       9
         A “Commonwealth agency” is defined as “[a]ny executive or independent agency.” 42
Pa. C.S. § 102. “Executive agency” is defined as “[t]he Governor and the departments, boards,
commissions, authorities and other officers and agencies of the Commonwealth
government . . . .” Id.



                                             8
Pa. R.C.P. No. 1028(a)(1). “In considering preliminary objections, we accept as
true all well-pleaded material facts set forth in the petition and all reasonable
inferences that may be drawn from those facts.” Bowers v. T-Netix, 837 A.2d 608,
611 (Pa. Cmwlth. 2003). “However, we are not required to accept as true legal
conclusions, unwarranted inferences from facts, argumentative allegations, or
expressions of opinion.” Id. We will not sustain preliminary objections unless it
“appear[s] with certainty that the law will not permit recovery, and any doubt
should be resolved by a refusal to sustain them.” Id.
      Section 761(a)(1) of the Judicial Code provides, generally, that this Court
has “original jurisdiction of all civil actions or proceedings . . . [a]gainst the
Commonwealth government.” 42 Pa. C.S. § 761(a)(1). Subsection (c) further
provides that this Court has “ancillary jurisdiction over any claim or other matter
which is related to a claim or other matter otherwise within its exclusive original
jurisdiction.”   42 Pa. C.S. § 761(c) (emphasis added).           Because this Court
possesses original jurisdiction over Bullock’s claims seeking review of the actions
of the Department, as a Commonwealth agency, we also have ancillary jurisdiction
over the related claims against Medlin. Accordingly, we overrule the objection to
this Court’s jurisdiction over Bullock’s claims against Medlin.


      B.     Demurrer
      Medlin also demurs that the Amended Petition is legally insufficient.
Medlin contends that Bullock does not allege that Medlin “owed any ministerial or
mandatory duty to intervene with [Bullock’s] confinement” and/or sex offender
treatment or to “correct” the Department’s actions such that mandamus relief
would be appropriate. (Medlin’s Preliminary Objections ¶ 37.) Medlin asserts that


                                         9
Bullock has only vaguely averred that Medlin failed to intervene with regard to his
sex offender treatment and failed to properly train Department employees with
regard to their use of Medlin’s training manual.
      Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure provides that
any party may file preliminary objections to any pleadings based upon the “legal
insufficiency of a pleading (demurrer).”        Pa. R.C.P. No. 1028(a)(4).        Like
preliminary objections, generally, we only need to accept as true the well-pleaded
allegations of material facts and inferences reasonably deducible therefrom for
purposes of ruling on preliminary objections in the nature of a demurrer. Barndt v.
Pa. Dep’t. of Corr., 902 A.2d 589, 592 (Pa. Cmwlth. 2006). A petitioner must
state the material facts that support his claim.       Pennsylvania Rule of Civil
Procedure 1019(a), Pa. R.C.P. No. 1019(a). A demurrer will only be sustained in
cases which are “clear and free from doubt” and “where it appears with certainty
that the law permits no recovery under the allegations pleaded.” Sweatt v. Dep’t of
Corr., 769 A.2d 574, 577 (Pa. Cmwlth. 2001). Here, Bullock has failed to aver
sufficient facts to state a claim against Medlin.
      Count III of Bullock’s Amended Petition states, as follows:

      91. The respondent, Medlin [T]raining Institute failed to intervene and
      correct the error when it was brought to their [sic] attention that
      Respondent, Department of Corrections fabricated petitioner’s
      participation, and force [sic] him to repeat phases; and using the
      program as a means of punishment.
                                      ***

      131. The failure or refusal of the respondent Medlin Training Institute
      to intervene and correct the problems when it was brought to their
      [sic] attention through a letter, and for failing to train the Department
      of Corrections in the proper use of their [sic] training manual caused
      petitioner to suffer cruel and unusual punishment, and violated other
      rights of the petitioner.


                                          10
                                       ***

      134. The determination of the respondent(s) constitutes error of law
      because the respondent [sic] failed and/or refused to comply with
      State Statutory Law, the Medlin Institute Manual, DOC policys [sic],
      which requires respondents to provide adequate, meaningful and
      effective access to sex offenders programing and treatment over the
      29 years of incarceration.

(Amended Petition ¶¶ 91, 131, 134.)      Beyond the above paragraphs, Bullock
alleges facts regarding the specific actions of the Department and Department
employees regarding his sex offender treatment, but he has failed to allege any
other acts taken or omitted by Medlin that have caused him the constitutional and
other deprivations he seeks to remedy. Bullock also did not allege, or point to any
legal authority indicating, that Medlin had any duty to intervene on Bullock’s
behalf. “A petition for mandamus relief which does not allege that the defendant
has a legal duty which the defendant is required to perform, does not state a claim
upon which relief can be granted.” Bronson v. Investigations Div., Bureau of
Special Servs., Dep’t of Corr., 650 A.2d 1160, 1163 (Pa. Cmwlth. 1994) (citing,
inter alia, Pennsylvania Rule of Civil Procedure 1095, Pa. R.C.P. No. 1095). Also,
notably, Bullock has not attached either “the letter” that he allegedly sent to
Medlin notifying it of his allegations or the “Medlin Institute Manual” to the
Amended Petition. Accordingly, because Bullock has failed to aver sufficient facts
to state a claim against Medlin and has not provided any supporting documentation
or authority, we sustain Medlin’s demurrer, and dismiss, without prejudice,
Bullock’s Amended Petition as against Medlin.




                                        11
      C.     Misjoinder
      The Department asserts that Bullock improperly joined six separate and
unrelated causes of action in a single suit that do not arise out of the same
transaction or occurrence. The Department argues that each of the six causes of
action take place at different times, in different parts of the prison, and involve
different actors and circumstances. Further, the Department asserts that each of the
six counts request different forms of relief. The Department also contends that
Bullock has attempted to circumvent the PLRA filing fee requirements.             The
Department now requests that the Amended Petition be dismissed.              Bullock
responds that he followed Rule 1020(a) of the Pennsylvania Rules of Civil
Procedure, Pa. R.C.P. No. 1020(a), in asserting the six counts in his Amended
Petition.
      Rule 1028(a)(5) of the Pennsylvania Rules of Civil Procedure permits any
party to file preliminary objections to any pleading based upon the misjoinder of a
cause of action. Pa. R.C.P. No. 1028(a)(5). Rule 1020(a) provides, however, that
a plaintiff “may state in the complaint more than one cause of action cognizable in
a civil action against the same defendant.” Pa. R.C.P. No. 1020(a). “Each claim,
however, must be presented in a self-sufficient separate count, which includes
averments of facts pertaining to the particular claim and relief sought.”
Commonwealth v. Parisi, 873 A.2d 3, 9 (Pa. Cmwlth. 2005). We agree with
Bullock that he was permitted to assert all six counts in his Amended Petition.
      In the Amended Petition, Bullock alleges an extensive series of facts in each
of the six counts indicating his belief that the Department and specific Department
employees are engaged in an ongoing conspiracy to harm, punish, abuse, and
retaliate against him through various tactics in an effort to keep Bullock from being



                                         12
released on parole. Bullock also includes the relief he seeks in each separate
count. While we make no determination as to the validity of the merits of this
case, we recognize the seriousness of Bullock’s allegations. Because we accept as
true all well-pleaded allegations of material facts and inferences reasonably
deducible therefrom for purposes of ruling on preliminary objections, and because
the Department does not assert that those facts alleged by Bullock do not set forth a
cognizable action or actions in mandamus, the Department’s preliminary objection
is overruled.


IV.   Conclusion
      Based on the foregoing, we overrule Medlin’s objection that this Court lacks
jurisdiction and sustain Medlin’s demurrer to Bullock’s claims against Medlin and
dismiss those claims without prejudice. We overrule the Department’s preliminary
objection that Bullock misjoined six separate causes of action.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge




                                         13
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lamont Bullock,                           :
                          Petitioner      :
                                          :
                   v.                     :   No. 375 M.D. 2016
                                          :
The Pennsylvania Department of            :
Corrections and The Medlin Training       :
Institute,                                :
                       Respondents        :


                                       ORDER

        NOW, September 28, 2017, The Medlin Training Institute’s (Medlin)
preliminary objection to Lamont Bullock’s (Bullock) Amended Petition for
Review in the Nature of a Complaint in Mandamus (Amended Petition) that this
Court lacks jurisdiction is OVERRULED. Medlin’s preliminary objection in the
nature of a demurrer to Bullock’s claims against Medlin is SUSTAINED.
Bullock’s claims against Medlin are DISMISSED without prejudice. Bullock may
file a second amended petition for review within thirty (30) days of the date of this
Order. If Bullock fails to file a second amended petition for review, the Chief
Clerk shall dismiss with prejudice Bullock’s claims against Medlin.
        The Pennsylvania Department of Corrections’ (Department) preliminary
objection that Bullock misjoined six separate causes of action is OVERRULED.
The Department shall file a responsive pleading to any second amended complaint
within thirty (30) days of the date of filing. If Bullock fails to file a second
amended complaint within thirty (30) days of the date of this Order, the
Department shall file an answer to Bullock’s Amended Petition within sixty (60)
days of the date of this Order.


                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge
