           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Moon Starcloud (a/k/a                         :
Keith Mason Knight),                          :
                                              :
                             Petitioner       :
                                              :
                     v.                       : No. 332 M.D. 2017
                                              : Submitted: January 12, 2018
Facility Manager Kauffman,                    :
SCI Huntingdon; John E. Wetzel,               :
Secretary, Dept. of Corrections,              :
                                              :
                             Respondents      :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                  FILED: June 8, 2018


              Before the Court are the preliminary objections (POs) of Respondents
John E. Wetzel, Secretary of the Pennsylvania Department of Corrections
(Department), and Facility Manager Kauffman of the State Correctional Institution
(SCI)-Huntingdon (collectively, Respondents) to the pro se Petition for Declaratory
Relief (Petition) filed in this Court’s original jurisdiction by Moon Starcloud, a/k/a
Keith Mason Knight (Starcloud), an inmate at SCI-Huntingdon.1 We sustain the
POs and dismiss the Petition.

       1
       Starcloud is serving two consecutive terms of life imprisonment based on his convictions
on two counts of first-degree murder and two counts of conspiracy to commit murder.
Commonwealth v. Knight, 364 A.2d 902, 904 (Pa. 1976).
             Starcloud filed the Petition seeking declaratory judgment from this
Court to enable him to obtain access to his personal ancestry DNA results by using
an outside DNA testing service. Starcloud alleges that in January 2016, it was
revealed to him that his paternal grandfather was a Native American from a
reservation in Shawnee, Oklahoma. As a result, on February 8, 2017, Starcloud
submitted a Form DC-135A, Inmate Request to Staff Member, to both his
Counselor, Mr. Grimme, and his Unit Manager, Ms. Spyker, seeking institutional
approval to confirm his Native American heritage through DNA testing. These staff
members responded that Starcloud could purchase items through the commissary or
an authorized outside vendor.
             On May 10, 2017, Starcloud sent a request to Respondent Kauffman
requesting approval for DNA testing through the website Ancestry.com.
Specifically, Starcloud requested approval to allow a family member to order the
test on his behalf; he would send money to the family member to pay for the test;
and a staff member at Respondents’ correctional institution would collect saliva to
be submitted for the test. Respondent Kauffman denied the request explaining he
could only allow tests of this nature in response to court-ordered legal issues and not
merely for personal use. On May 16, 2017, Starcloud appealed this decision to
Respondent Wetzel, who also denied his request.
             In the Petition, Starcloud maintains that the Department has no known
policy regarding ancestry DNA testing and asks this Court to declare: (1) the results
of an Ancestry.com DNA test are not admissible in a court of law to prove guilt or
innocence or paternity; (2) an individual’s ancestry is personal and no government
agency has standing to deprive an individual of knowledge of the same without valid
cause; (3) the Department and SCI-Huntingdon have no standing to deprive any


                                          2
prisoner of knowledge of his ancestry; (4) the Department and SCI-Huntingdon have
no standing to prevent Starcloud from accessing Ancestry.com for DNA testing; (5)
Ancestry.com is a well-known and reputable company specializing in ancestry DNA
testing with both an email and street address; (6) the Department and SCI-
Huntingdon have no legal standing to prevent a prisoner from remitting payment to
a family member for testing on the condition that the test is sent from the company
to the “testee” and returned from the “testee” to the company; (7) neither the
Department nor SCI-Huntingdon have alleged or demonstrated that allowing him to
submit a sample for DNA testing would be a threat to institutional security or
discipline; (8) neither the Department nor SCI-Huntingdon have alleged or
demonstrated that allowing him to submit a sample for DNA testing would be
counter to penalogical interests; (9) requiring a staff member to collect a saliva
sample from him and returning the same to Ancestry.com is minimally invasive to
the institution; and (10) he is authorized to order the Ancestry.com test through his
cousin, pay his cousin for the costs associated with the test, require a Department
employee to collect a saliva sample from him, and send the sample to Ancestry.com
for analysis. Petition at 4-5.
               Respondents filed POs in response to the Petition.2 Respondents demur
on the basis that the Petition is legally insufficient. According to Respondents,

       2
         “In ruling on preliminary objections, the courts must accept as true all well-pled facts that
are material and all inferences reasonably deducible from the facts.” Pennsylvania Independent
Oil & Gas Association v. Department of Environmental Protection, 135 A.3d 1118, 1123 (Pa.
Cmwlth. 2015), aff’d, 161 A.3d 949 (Pa. 2017) (quoting Guarrasi v. Scott, 25 A.3d 394, 400 n.5
(Pa. Cmwlth. 2011)). “However, we ‘are not required to accept as true any unwarranted factual
inferences, conclusions of law or expressions of opinion.’” Id. (quoting Guarrasi, 25 A.3d at 400
n.5). “To sustain preliminary objections, ‘it must appear with certainty that the law will permit no
recovery’ and ‘[a]ny doubt must be resolved in favor of the non-moving party.’” Id. (quoting
Guarrasi, 25 A.3d at 400 n.5).


                                                  3
Starcloud has no constitutional or other legal right to use an outside DNA testing
service solely to personally explore his ancestry or to receive such DNA results
unrelated to any legitimate post-conviction purpose.3 Preliminary Objections at 3-
4. In addition, they claim the Petition should be dismissed because: Starcloud has
failed to allege that he exhausted his administrative remedies; this Court does not
have jurisdiction to review Department decisions not implicating constitutional
rights or involving operations of the correctional facility; the vial containing the
sample could be used to transport contraband; and Starcloud has failed to state a
claim for which relief is available. Id. at 4. Lastly, Respondents object that
Respondent Kauffman should be dismissed as a respondent because he is not a
statewide officer subject to this Court’s original jurisdiction.4 Id. at 5. Following
briefing, the POs are ready for disposition.
               Section 7451(c) of the Declaratory Judgments Act states, in relevant
part, that “[r]elief shall not be available under this subchapter with respect to any . . .
[p]roceeding within the exclusive jurisdiction of a tribunal other than a court [or
p]roceeding involving an appeal from an order of a tribunal.”                      42 Pa. C.S.

       3
         See Section 9543.1(a) of the Post Conviction Relief Act, 42 Pa. C.S. §9543.1 (“An
individual convicted of a criminal offense in a court of this Commonwealth and serving a term of
imprisonment . . . may apply by making a written motion to the sentencing court for the
performance of forensic DNA testing on specific evidence that is related to the investigation or
prosecution that resulted in the judgment of conviction.”).

       4
         Respondents also objected based on defective service. See Pa. R.A.P. 1514(c) (requiring
service of a petition for review to be served in person or by certified mail upon the governmental
agency as well as the Attorney General’s Office). This Court directed Starcloud to comply with
Rule 1514(c). On October 23, 2017, Starcloud filed a certificate of service certifying service to
Respondents by certified mail, but not to the Attorney General. Respondents did not renew their
objection to service or otherwise develop any argument pertaining to service in its brief.
Consequently, any objection regarding defective service is waived. Triage, Inc. v. Department of
Transportation, 537 A.2d 903, 908 (Pa. Cmwlth. 1988).


                                                4
§7541(c)(2), (3). In turn, Section 93.9 of the Department’s regulations states, in
relevant part:

               The Department will maintain an inmate grievance system
               which will permit any inmate to seek review of problems
               which the inmate experiences during the course of
               confinement. The system will provide for review and
               resolution of inmate grievances at the most decentralized
               level possible. It will also provide for review of the initial
               decision making and for possible appeal to the Central
               Office of the Department.
37 Pa. Code §93.9.5
               Section 1(A)(2) of Department Policy DC-ADM 804 provides that
“[t]he Inmate Grievance System is intended to deal with a wide range of issues,
procedures, or events that may be of concern to an inmate.” Additionally, Section
1(A)(13) provides, “[a]n inmate who has been personally affected by a Department
and/or facility action or policy will be permitted to submit a grievance.”6 Further,
Section 1(A)(3) and (4) states that “[a]n inmate is encouraged to attempt resolution
of a concern informally by use of a DC-135A, Inmate Request to Staff Member
. . . prior to submitting a DC-804, Part 1, Official Inmate Grievance Form,” and
“[w]hile an inmate should make every effort to resolve a concern informally prior to

       5
         See also Department Policy DC-ADM 804, Policy Statement (“It is the policy of the
Department that every individual committed to its custody shall have access to a formal procedure
through which to seek resolution of problems or other issues of concern arising during the course
of confinement. For every such issue, there shall be a forum for review and two avenues of appeal.
The formal procedure shall be known as the Inmate Grievance System.”) (footnote omitted).

       6
          See also Section 1(A)(7) of Department Policy DC-ADM 804 (“Issues concerning a
specific inmate misconduct charge, conduct of a hearing, statements written within a misconduct
and/or other report, a specific disciplinary sanction, and/or the reasons for placement in
administrative custody will not be addressed through the Inmate Grievance System and must be
addressed through Department Policy DC-ADM 801, ‘Inmate Discipline’ and/or DC-ADM 802,
‘Administrative Custody Procedures.’ Issues other than specified above must be addressed
through the Inmate Grievance System.” (emphasis in original)).
                                                5
filing an official grievance, failure to attempt to informally resolve a concern will
not be cause to reject an official grievance.” (Emphasis in original.)
             In this case, although Starcloud sought redress through the informal
request process by submitting a Form DC-135A, he failed to invoke the
Department’s formal grievance procedure and appeal process through the
submission of a DC-804, Part 1 Official Inmate Grievance Form. As a result,
declaratory judgment will not be granted in this case. See Buehl v. Pennsylvania
Department of Corrections, 635 A.2d 217, 219 (Pa. Cmwlth. 1991), aff’d, 635 A.2d
113 (Pa. 1993) (“Here, Buehl has failed to use the internal grievance procedures
available to him. . . . The law is clear that declaratory judgments should not be an
available remedy for those who have failed to first use appropriate agency
procedures. Therefore, because Buehl failed to use the internal grievance procedures
available to him, declaratory judgment is inappropriate and his claim is dismissed.”).
             Accordingly, Respondents’ POs in the nature of a demurrer is sustained
and Starcloud’s Petition is dismissed.




                                         MICHAEL H. WOJCIK, Judge




                                          6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Moon Starcloud (a/k/a                   :
Keith Mason Knight),                    :
                                        :
                        Petitioner      :
                                        :
                  v.                    : No. 332 M.D. 2017
                                        :
Facility Manager Kauffman,              :
SCI Huntingdon; John E. Wetzel,         :
Secretary, Dept. of Corrections,        :
                                        :
                        Respondents     :


                                     ORDER


            AND NOW, this 8th day of June, 2018, Respondents’ preliminary
objection in the nature of a demurrer is SUSTAINED, and Petitioner’s Petition for
Review is DISMISSED.




                                      __________________________________
                                      MICHAEL H. WOJCIK, Judge
