            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Anthony Williams,                       :
                   Petitioner           :
                                        :
             v.                         :
                                        :
John E. Wetzel (Secretary of            :
Corrections); Mrs. Reifer (Chief        :
Grievance Officer); Barry Smith         :
(Facility Manager, S.C.I. Houtzdale); :
Mr. Quick C/O (Corrections Officer); :
Mr. Defilice (Unit Manager for C-Unit); :
PA. Dept. of Corrections Officials,     :    No. 214 M.D. 2019
                   Respondents          :    Submitted: November 1, 2019


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                      FILED: April 17, 2020


               Before the Court are “[Respondents’] Preliminary Objections/Motion
to Revoke [in forma pauperis]” filed by the Department of Corrections
(Department), John E. Wetzel, Mrs. Reifer, Barry Smith, Mr. Quick C/O (CO
Quick), and Mr. Defilice (collectively, “Respondents”) on July 3, 2019 in response
to pro se petitioner Anthony Williams’ (Williams) Petition for Review (Petition).
Williams alleges prison authorities confiscated his television in retaliation for
Williams having filed a grievance against a corrections officer under the Prison Rape
Elimination Act of 2003 (PREA),1 which grievance Williams argues Respondents

      1
          34 U.S.C. §§ 30301-30309.
denied in violation of Department policy. Respondents argue that: Wetzel, Defilice,
Reifer, and Smith should be dismissed because the Petition makes no factual
allegations against them; this Court lacks jurisdiction to review Department
grievance proceedings; and Respondents did not retaliate, but instead simply
confiscated contraband property, in which Williams enjoyed no property right.
Respondents further request that, because he has at least three strikes under Section
6602(f) of the Prison Litigation Reform Act,2 this Court revoke Williams’ status as
an in forma pauperis (IFP) litigant and require Williams to pay the full filing fee
within a reasonable period of time to prosecute the Petition. For the reasons that
follow, we sustain the Preliminary Objections.
                Williams is incarcerated at the State Correctional Institution at
Houtzdale (SCI-Houtzdale). At some point prior to December 5, 2018, Williams
filed a complaint against CO Quick pursuant to the PREA. See Official Inmate
Grievance No. 778447, dated December 25, 2018 (Grievance). Thereafter, Williams
received a misconduct and was temporarily transferred to the Restricted Housing
Unit (RHU) within SCI-Houtzdale.3 See id. As a result of his transfer to the RHU,
prison officials inventoried the personal property in Williams’ cell. See id.; see also
Preliminary Objections at 3, ¶ 10. During the inventory of Williams’ property, CO
Quick discovered that Williams’ television did not have a legible serial number and
that the identifying engraving on the television did not match a prior Reception and
Delivery (R&D) engraving, in violation of prison requirements. See Initial Review
Response dated January 14, 2019 (Grievance Response); Facility Manager’s Appeal
Response dated January 22, 2019 (Facility Manager Response); Final Appeal

       2
           42 Pa.C.S. §§ 6601-6608.
       3
        Williams does not allege that the misconduct that resulted in his transfer to the RHU was
in any way related to, or in retaliation for, the previous filing of the PREA complaint.
                                               2
Decision dated March 7, 2019 (Final Decision). As a result, CO Quick confiscated
Williams’ television. See id.
             Williams filed the Grievance on December 25, 2018, challenging the
confiscation of his television. See Grievance. The Grievance alleged that an inmate
with knowledge of the confiscation informed Williams that prison officials had
“messed with” his television and were treating him “dirty” because of his previously
filed PREA complaint.       Id.   SCI-Houtzdale’s Facility Grievance Coordinator
interviewed both Williams and CO Quick regarding the allegations contained in the
Grievance. See Grievance Response. Williams repeated the claim that his television
was taken in retaliation for his filing of a PREA complaint, but refused to identify
the inmate who had informed him of the actions of the prison officials. Id. CO
Quick explained that he confiscated Williams’ television because, during the
inventory search of Williams’ property, he discovered that the television did not
have a serial number and that the identifying engraving did not match R&D’s
records. Id. The Facility Grievance Coordinator examined the television in question
and confirmed that the television did not have a serial number and that the
identification engraving appeared to have been altered, with another inmate’s name
scratched off and Williams’ name stenciled on with a needle and not an R&D
engraving. Id. The Facility Grievance Coordinator also noted that Williams refused
to divulge the identity of the inmate who allegedly witnessed prison officials altering
Williams’ television. Id. As a result, the Facility Grievance Coordinator concluded
that Williams failed to provide any evidence to corroborate his claims and
accordingly denied the Grievance. Id.
             Williams appealed the Facility Grievance Coordinator’s determination
to the Facility Manager, Barry Smith. See SCI Inmate Appeal to Facility Manager


                                          3
Grievance dated January 19, 2019 (Facility Manager Grievance).              Mr. Smith
reviewed the matter and upheld the Grievance Response, determining as follows:

             The Grievance Officer appropriately addressed all of the
             issues contained in the [G]rievance. Your appeal is a
             reiteration of the original claims concerning retaliation.
             Your allegations of this action taking place was
             appropriately investigated by the Grievance Officer and
             found to have no merit. Your disdain to [sic] the
             investigation in no way refutes that response. You have
             failed to provide any tangible evidence to refute the
             original response provided. The Investigating Officer has
             clearly found that your TV was altered and therefore it was
             properly confiscated. The Investigating Officer properly
             addressed all of your claims and provided you with an
             appropriate response.

Facility Manager Response at 1. Williams appealed the Facility Manager Response
to the Secretary of Corrections’ Office of Inmate Grievances and Appeals, which
reviewed the record and upheld the prior determinations on March 7, 2019. See
Final Decision.
             On April 4, 2019, Williams filed the Petition with this Court. In the
Petition, Williams reiterates his claim below that the confiscation of his television
was the result of retaliation by prison officials for his having filed a PREA complaint,
and further claims the previous denials of the Grievance were made in contravention
of Department policy and without due process for Williams. Williams requests that
this Court order the return of his television, overrule the denial of the Grievance, and
declare that the Department violated its own policy.
             Respondents filed preliminary objections to the Petition on July 3,
2019. Williams filed his Answer to Preliminary Objections on July 24, 2019. On
August 6, 2019, this Court filed an order directing the Preliminary Objections to be

                                           4
decided on briefs. The parties have each submitted briefs, and the matter is now ripe
for determination.
             Respondents     raise      a   number   of   preliminary   objections   for
determination. First, Respondents argue that this Court should dismiss the Petition
because it fails to conform to the paragraphing requirements of Pennsylvania Rule
of Civil Procedure No. 1022. See Respondents’ Brief at 12. Second, Respondents
argue the Petition should be dismissed because this Court lacks jurisdiction to review
the Department’s grievance procedures. Id. at 12-13. Third, Respondents claim
Wetzel, Defilice, Reifer and Smith should be dismissed from the action because
Williams failed to allege their personal involvement regarding any constitutional
violations. Id. at 14-15. Fourth, Respondents argue that Williams’ due process
claim should fail because Williams has no property right in contraband, and that the
Department’s internal grievance process provided Williams with an adequate legal
remedy. Id. at 16-17. Finally, Respondents claim Williams’ retaliation claim should
be dismissed because his property was confiscated pursuant to a prison rule. Id. at
17-18.
             Initially, we note that:

             [i]n ruling on preliminary objections, we must accept as
             true all well-pleaded material allegations in the petition for
             review, as well as all inferences reasonably deduced
             therefrom. The Court need not accept as true conclusions
             of law, unwarranted inferences from facts, argumentative
             allegations, or expressions of opinion. In order to sustain
             preliminary objections, it must appear with certainty that
             the law will not permit recovery, and any doubt should be
             resolved by a refusal to sustain them.

             A preliminary objection in the nature of a demurrer admits
             every well-pleaded fact in the complaint and all inferences

                                             5
             reasonably deducible therefrom. It tests the legal
             sufficiency of the challenged pleadings and will be
             sustained only in cases where the pleader has clearly failed
             to state a claim for which relief can be granted. When
             ruling on a demurrer, a court must confine its analysis to
             the complaint.

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010).
             Upon review, we agree with Respondents that this Court lacks
jurisdiction to consider the Petition to the extent that it seeks review of his grievance
denial. In Bronson v. Central Office Review Committee, 721 A.2d 357 (Pa. 1998),
our Supreme Court agreed with this Court that “internal prison operations are more
properly left to the legislative and executive branches, and that 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.” Id. at 358
(citing Robson v. Biester, 420 A.2d 9 (Pa. Cmwlth. 1980)). In Bronson, the Supreme
Court held that this Court lacks jurisdiction to review inmate appeals of decisions by
intra-prison disciplinary tribunals by explaining:

             [u]nlike 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.            Therefore, the
             [C]ommonwealth [C]ourt does not have appellate
             jurisdiction, under 42 Pa.C.S § 763, over inmate appeals
             of decisions by intra-prison disciplinary tribunals.




                                           6
Id. at 358–59 (internal citations and quotations omitted). Though Williams brings
this Petition before this Court in our original jurisdiction, our Supreme Court further
held in Bronson that this Court cannot entertain such matters in our original
jurisdiction, except in very limited circumstances. As the Supreme Court explained:

             [p]rison inmates do not enjoy the same level of
             constitutional protections afforded to non-incarcerated
             citizens . . . incarceration brings about the necessary
             withdrawal or limitation of many privileges and rights, a
             retraction justified by the considerations underlying our
             penal system. Unless an inmate can identify a personal or
             property interest . . . not limited by Department of
             Corrections regulations and which has been affected by a
             final decision of the [D]epartment the decision is not an
             adjudication subject to the court’s review.

Id. at 359 (internal citation, quotations, and brackets omitted). Thus, to the extent
Williams challenges the denial of the Grievance, we do not have jurisdiction to
consider this finding because review of such grievances is a matter of internal prison
administration. See id. at 358-59.
             Additionally, to the extent the Petition purports to raise a due process
claim, we agree with Respondents that this claim should be dismissed because
Williams has failed to plead facts that would establish that he was deprived of a
protected property interest when prison authorities confiscated contraband property
from his cell. See Respondents’ Brief at 16-17.
             As this Court has explained:

             [t]he Fourteenth Amendment to the United States
             Constitution provides, in relevant part, that no “State
             [shall] deprive any person of life, liberty, or property,
             without due process of law.” U.S. Const. amend. XIV, §
             1. To maintain a due process challenge, a party must

                                          7
              initially establish the deprivation of a protected liberty or
              property interest. If, and only if, the party establishes the
              deprivation of a protected interest, will the Court consider
              what type of procedural mechanism is required to fulfill
              due process.

Shore v. Pa. Dep’t of Corr., 168 A.3d 374, 383 (Pa. Cmwlth. 2017) (some internal
citations omitted). Prison inmates also have no property interest in property that is
contraband. Bush v. Veach, 1 A.3d 981, 984 (Pa. Cmwlth. 2010); Fennell v. Captain
N.D. Goss (Pa. Cmwlth., No. 1198 C.D. 2015, filed Feb. 5, 2016),4 slip op. at 11
n.10 (“We recognize that . . . a prisoner does not possess a protectable property
interest in contraband.”) (citing Lowery v. Cuyler, 521 F. Supp. 430, 433-34 (E.D.
Pa. 1981)).
              Here, prison authorities inventoried Williams’ property when Williams
was temporarily transferred to the RHU for an undisputed, unrelated misconduct.
During the inventory, CO Quick discovered a television with altered identification
engravings, which rendered the television contraband. Williams does not have a
property interest in items confiscated from his cell that were deemed to be
contraband. See Lowery, 521 F. Supp. at 433-34. Consequently, Williams’ loss of
his contraband property does not implicate his due process rights.
              Further, the United States Supreme Court has ruled that an inmate
cannot state a cognizable claim for the deprivation of property where there exists an
adequate post-deprivation remedy. See Hudson v. Palmer, 468 U.S. 517 (1984).
Here, Williams filed a grievance that was investigated and adjudicated pursuant to
the Department’s grievance procedures. See Petition at 1-4 ¶ 8; see also Grievance;


      4
        This Court’s unreported memorandum opinions may be cited for persuasive value. 210
Pa. Code § 69.414(a).

                                            8
Grievance Response; Facility Manager Grievance; Facility Manager Response;
Final Decision.   The Facility Grievance Coordinator reviewed and denied the
grievance, which determination Williams appealed to the Facility Manager and the
Office of Inmate Grievances and Appeals, losing at every level. See id. The Petition
contains nothing beyond Williams’ asserted dissatisfaction with the results of his
Grievance, which dissatisfaction does not state a claim for deficient post-deprivation
process.
             Finally, we agree that Williams’ retaliation claim should be dismissed
because the property seized – Williams’ television – was contraband confiscated
pursuant to a prison rule. See Respondents’ Brief at 17-18; see also Facility Manager
Response; Final Decision. In prisoner retaliation claims, “courts require proof the
inmate engaged in constitutionally protected conduct, prison officials took adverse
action, and the protected conduct was a substantial or motivating factor for the
action.” Yount v. Pa. Dep’t of Corr., 966 A.2d 1115, 1120 (Pa. 2009). In addition
to these basic elements, to prevail on a retaliation claim, a prisoner also maintains
the burden of proof to disprove a legitimate penological goal for the alleged
retaliatory action. Id. The reason for this requirement stems from the “potential for
abuse” inherent in retaliation claims and also a policy of judicial deference to the
prison officials’ “legitimate interest in the effective management of a detention
facility.” Id. at 1120-21. “[C]laims of retaliation fail if the alleged retaliatory
conduct violations were issued for the actual violation of a prison rule.” Horan v.
Newingham (Pa. Cmwlth., No. 2622 C.D. 2015, filed Oct. 24, 2016), slip op. at 5
(quoting Hartsfield v. Nichols, 511 F.3d 826, 829 (8th Cir. 2008)). “Thus, a
defendant may successfully defend a retaliatory discipline claim by showing some
evidence the inmate actually committed a rule violation.” Id. (quoting Hartsfield,


                                          9
511 F.3d at 829) (emphasis added). Further, “a report from a correctional officer,
even if disputed by the inmate and supported by no other evidence, legally suffices
as ‘some evidence’ upon which to base a prison disciplinary violation[.]” Id.
               Here, Williams’ Petition alleges prison authorities confiscated his
television in retaliation for Williams having filed a grievance against a corrections
officer. Both the Facility Manager Response and the Final Decision, copies of which
were attached to the Petition, evidence a report – albeit disputed by Williams – that
Williams was in possession of a contraband television. These reports constitute
“some evidence” that Williams actually committed a rule violation for which his
television was confiscated.5 Thus, Williams’ retaliation claim fails. Horan.
               Accordingly, we sustain Respondents’ Preliminary Objections6 and
dismiss the Petition.7



                                              __________________________________
                                              CHRISTINE FIZZANO CANNON, Judge

       5
         We note that no party argues that a television with altered identification engravings is not
contraband prohibited by prison rule. Williams’ defense to the actual violation of this rule – the
underlying allegation that CO Quick altered Williams’ television – was raised and rejected through
the Grievance process, which we cannot now review. See Bronson; see also Final Decision.
       6
         Based on this disposition, we need not consider Respondents’ first and third preliminary
objections.
       7
          Together with the Petition, on April 4, 2019, Williams filed an Application to Proceed
In Forma Pauperis, which the Court granted on May 1, 2019. On May 6, 2019, Respondents filed
a Motion to Revoke IFP and Dismiss the Petition Pursuant to Section 6602(f) of the Prison
Litigation Reform Act (IFP Motion). The Court denied Respondents’ IFP Motion by order dated
June 7, 2019, and denied Respondents’ requested reconsideration by order dated July 2, 2019. We
acknowledge that, in their brief, Respondents reargue the claim that this Court should revoke
Williams’ IFP status because Williams is a three-strike abusive litigation offender. See
Respondents’ Brief at 8-11. This Court will not reconsider reconsideration. See Pa.R.A.P. 2547
(second or subsequent applications for reargument will not be considered).

                                                10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Anthony Williams,                       :
                   Petitioner           :
                                        :
             v.                         :
                                        :
John E. Wetzel (Secretary of            :
Corrections); Mrs. Reifer (Chief        :
Grievance Officer); Barry Smith         :
(Facility Manager, S.C.I. Houtzdale); :
Mr. Quick C/O (Corrections Officer); :
Mr. Defilice (Unit Manager for C-Unit); :
PA. Dept. of Corrections Officials,     :   No. 214 M.D. 2019
                   Respondents          :


                                   ORDER


            AND NOW, this 17th day of April, 2020, the Preliminary Objections
of Respondents John E. Wetzel, Mrs. Reifer, Barry Smith, Mr. Quick C/O, and Mr.
Defilice (collectively, “Respondents”) are SUSTAINED and petitioner Anthony
Williams’ Petition for Review is DISMISSED with prejudice. Respondents’ Motion
to Revoke IFP is DISMISSED as moot.



                                     __________________________________
                                     CHRISTINE FIZZANO CANNON, Judge
