                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brian Shore,                             :
                    Petitioner           :
                                         :   No. 653 M.D. 2016
               v.                        :
                                         :   Submitted: March 31, 2017
Pennsylvania Department of               :
Corrections,                             :
                 Respondent              :



BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION BY
JUDGE McCULLOUGH                                             FILED: July 31, 2017


               Before the Court in our original jurisdiction are the preliminary
objections filed by the Department of Corrections (Department) to the petition for
review (Petition) filed by Brian Shore. We grant the Department’s objections and
dismiss Shore’s Petition.


                                    Background
               On November 21, 2016, Shore, an inmate at the State Correctional
Institution at Albion (SCI-Albion), filed his Petition against the Department, alleging
that the procedure used by prison officials to deny him access to photographs sent
through the mail was unconstitutional. Specifically, Shore averred that on June 14,
2016, SCI-Albion’s mailroom issued him three notification forms, advising that a
total of forty-three photographs were being withheld for violating section 3.3.c of
Department policy DC-ADM 803, currently promulgated and codified at 37 Pa.Code
§93.2(g)(1)(iv), both of which prohibit inmates from possessing publications
containing “nudity.”1 (Petition, ¶¶1, 5-6.)
              Shore stated that, after receiving the notifications, he initiated the
Department’s internal grievance procedure on June 20, 2016,2 claiming that the
photographs did not meet the definition of “nudity” and therefore SCI-Albion could
not confiscate them. On August 18, 2016, SCI-Albion’s Superintendent reviewed
Shore’s grievances and denied them, finding that the photos contained “nudity and
exposed genitalia.” (Petition, ¶5) (quoting Ex. C).              On August 29, 2016, Shore
appealed to the Office of Policy, Grants, and Legislative Affairs. On October 17,
2016, the Department’s Chief Grievance Officer denied Shore’s final appeal in the
grievance process, concluding that contrary to Shore’s contention, the photographs
showed “nudity in the form of bare breasts, vaginal and anal areas.” (Petition, ¶6)
(quoting Ex. D).
              In the Petition, Shore argues that the photographs are outside the scope
of DC-ADM 803 and that the grievance adjudicators denied him possession based
upon their own “individualized benchmarks of morality.” (Petition, ¶12). Shore

       1
         According to the regulation, “nudity” is defined as “[t]he showing of the human male or
female genitals, pubic area or buttocks with less than a fully opaque covering or the showing of the
female breast with less than a fully opaque covering of any portion below the top of the nipple, or
the depiction of covered male genitals in a discernible turgid state.” 37 Pa.Code §93.2(i).
However, “publications containing nudity . . . may be permitted if the material has artistic,
educational or medical value.” 37 Pa.Code §93.2(h).

       2
         See DC-ADM 803§3.4.a-b; DC-ADM 804 VI (providing for an appeal of the initial
determination and notification to the superintendent’s office to a designee known as the “Facility
Manager” (Superintendent), and then a further appeal to the Department’s “Office of Policy, Grants,
and Legislative Affairs” to a grievance officer (Chief Grievance Officer) for a “final” decision).



                                                 2
further contends that the time in which it took the Superintendent and the Chief
Grievance Officer to decide his grievances, 56 and 35 days, respectively, contravened
the 15-day and 30-day time limitations in DC-ADM 804. Finally, Shore asserts that
the Department’s procedure to review incoming mail is “inherently unfair” because,
during the initial review and grievance process, he was not “permitted to physically
view the publication,” i.e., the photographs. (Petition, ¶¶8-10, 13).
             Based upon these allegations, Shore asserts constitutional claims against
the Department “as the sole respondent in this case,” (Petition, ¶3), opting not to sue
any employees in either their individual or official capacity. In terms of his cause of
action, Shore maintains that the Department violated his First Amendment and
Fourteenth Amendment procedural due process rights. For relief, he seeks a decree
stating that the Department’s procedure to review incoming mail is unconstitutional;
compensatory damages in the form of losses incurred; an order in mandamus
requiring SCI-Albion to return the photographs; and an order requiring the
Department to implement a new grievance procedure in which an inmate is afforded
the opportunity “to physically review the publication . . . and present oral argument.”
Id. at Wherefore Clause, ¶¶1-4.
             On December 5, 2016, the Department filed preliminary objections in
the nature of a demurrer and Shore thereafter filed a reply. The parties then filed
briefs in support of and opposition to the preliminary objections and the matter is now
ripe for disposition.


                                      Discussion
             In ruling on preliminary objections in the nature of a demurrer, the Court
must accept as true all well-pleaded material facts and all inferences reasonably



                                           3
deducible therefrom. Barndt v. Pennsylvania Department of Corrections, 902 A.2d
589, 592 (Pa. Cmwlth. 2006). However, the Court is not required to accept as true
legal conclusions, unwarranted factual inferences, argumentative allegations, or
expressions of opinion. Armstrong County Memorial Hospital v. Department of
Public Welfare, 67 A.3d 160, 170 (Pa. Cmwlth. 2013) (en banc).


                                  First Amendment
             In his filings, Shore contends that he has alleged a viable First
Amendment claim because the photographs do not depict nudity. Although Shore
concedes, somewhat ambiguously, that the case law holds that DC-ADM 803 and 37
Pa.Code §93.2 do not run afoul of the First Amendment, he contends that he has “a
constitutional right to receive non-nude photographs sent to him,” (Shore’s brief at 9),
and claims that the Superintendent and the Chief Grievance Officer erred, as a matter
of fact, in denying his grievances.
             “[T]he First Amendment to the United States Constitution has long been
interpreted by the courts as including a general right to communicate by mail.”
Bussinger v. Department of Corrections, 29 A.3d 79, 84 (Pa. Cmwlth. 2011). This
right, however, does not come without qualifications and circumscription, especially
in the prison context. To be sure, inmates do not have an absolute right to acquire
and keep any property they desire and the Department is permitted to deprive inmates
of property if doing so is reasonably related to a legitimate penological interest.
Thomburgh v. Abbott, 490 U.S. 401, 414-18 (1989); see Iseley v. Beard, 841 A.2d
168, 174 (Pa. Cmwlth. 2004).
             In Brittain v. Beard, 974 A.2d 479 (Pa. 2009), the Pennsylvania
Supreme Court determined whether the Department provided sufficient penological



                                           4
justification for then DC-ADM 803-1 to withstand First Amendment scrutiny. Like
current DC-ADM 803, then DC-ADM 803-1 prohibited inmates from possessing
“nudity” and defined that term in language virtually identical to the present definition
contained in 37 Pa.Code §93.2(i).3 The petitioner in Brittain argued that “DC-ADM
803-1 improperly prohibited inmates from possessing materials depicting mere
nudity, including artwork, drawings, photographs, and Playboy Magazine, without
any legitimate penological purpose.” 974 A.2d at 481. In response, the Department
set forth what it contended to be a valid, rational connection between the policy and
legitimate governmental interests. Specifically, the Department asserted that the
prohibition on pornographic material serves to foster the rehabilitation of inmates; is
consistent with inmate treatment objectives; discourages inmates from objectifying
persons; and minimizes the risk of inappropriate, sexual behavior. Ultimately, our
Supreme Court concluded that these reasons advanced legitimate penological
interests, and because the petitioner failed to prove that the proffered reasons and
goals were unreasonable, upheld the constitutionality of DC-ADM 803-1 against a
First Amendment challenge.
               In Smith v. Beard, 26 A.3d 551 (Pa. Cmwlth. 2011), the petitioner filed a
petition for review in the nature of a class action challenging the validity of current
DC-ADM 803 and its promulgated form as a regulation located at 37 Pa.Code §93.2.
The petitioner in Smith contended that the policy was “overbroad and vague in
violation of his First and Fourteenth Amendment rights” and “discriminatorily


       3
          Under then DC-ADM 803, “nudity” was defined as “showing the human male or female
genitals, pubic area or buttocks with less than a fully opaque covering, or showing the female breast
with less than a fully opaque covering of any portion thereof below the top of the nipple (exposure
through ‘see through’ materials is considered nudity for purposes of this definition).” Brittain, 974
A.2d at 480 (citation omitted).



                                                 5
permits commercial pornography in a piecemeal fashion by permitting magazines and
books such as Maxim, Curves, and the Bible, but denying access to Playboy . . . .” 26
A.3d at 555. The petitioner also averred that Playboy magazine possesses serious
literary, political, and artistic value and that prohibiting possession of that publication
is not reasonably related to any goal of rehabilitation.          This Court, however,
disagreed. Relying predominately on Brittain, we concluded that the petitioner’s
allegations “do not include the specific facts necessary to disprove the penological
interests asserted by the Department,” 26 A.3d at 559, and reaffirmed that the
policy’s ban on the possession of nudity did not run afoul of the First Amendment.
               Pursuant to Brittain and Smith, DC-ADM 803 and 37 Pa.Code §93.2 are
facially constitutional for purposes of the First Amendment and, like the petitioners in
those cases, Shore does not allege any specific facts that tend to undermine the
Department’s legitimate penological interests. In his answer to the Department’s
preliminary objections, Shore candidly admits that the policy “rightly restricts
inmates’ First Amendment right to receive and possess nudity,” but contends that
“DC-ADM 803 does not limit inmates’ First Amendment right to receive and possess
non-nude photographs . . . .” (Answer, ¶4.)           In this vein, Shore argues that he
possesses a First Amendment right to receive non-nude photographs; the photographs
do not contain nudity; and in an apparent backtrack from the allegations in his
Petition, “highlights his continued right . . . to receive and possess non-nude
photographs exclusively to evidence the cognizable [nature] of his due process claim
. . . .” Id. ¶6.
               While it is unclear whether Shore has abandoned a claim based on First
Amendment principles, he generally advances the argument that the Chief Grievance
Officer erred in determining that the photographs depict nudity as a matter of fact and



                                            6
thereby applied DC-ADM-803 and 37 Pa.Code §93.2 in an unconstitutional manner.
(See Shore’s brief at 10-11.)4 However, to the extent Shore makes such a contention,
the case law dictates that this Court lacks jurisdiction to review the factual findings
and/or legal conclusions of the Chief Grievance Officer with respect to her denial of
Shore’s grievances. See, e.g., Bronson v. Central Office Review Committee, 721 A.2d
357 (Pa. 1998); Xavier v. Department of Corrections, (Pa. Cmwlth., No. 331 M.D.
2016, filed February 8, 2017) (unreported).
               In Bronson, our Supreme Court decided whether this Court has
jurisdiction to review the final decisions of the then Central Office Review
Committee (Committee) – now designated as the Chief Grievance Officer – denying
inmate grievances under the procedure in DC-ADM 804. In that case, the petitioner
filed grievances asserting that the Department unlawfully seized and destroyed
personal property, specifically clothing, and after the Committee denied the
grievances, the petitioner filed a petition for review in this Court. Eventually, the
case made its way to our Supreme Court, which assessed both this Court’s appellate
and original jurisdiction to entertain legal issues emanating from a grievance denial.
               In determining that we lacked appellate jurisdiction to review this type
of a decision, the Supreme Court in Bronson emphasized that, when resolving
grievances, the Committee is “purely internal to the Department . . . and does not
function on the level of a government agency.” 721 A.2d at 358. As the Court
expounded:


       4
          In Shore’s words: “It follows that if an inmate is sent a photograph of a person . . . and the
[Department] repeatedly claims the photo contains nudity when it does not . . . the [Department’s]
explicit refusal to abide by its own policy and . . . outright deceit concerning an unlimited First
Amendment right . . . effectively amounts to a complain[t] primarily claiming that the [Department]
lied concerning permissible non-nude photographs it seized from Shore.” (Shore’s brief at 10.)



                                                   7
             [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 . . . .

             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 . . . .
Id. at 358-59. For these reasons, the Supreme Court concluded that this Court “does
not have appellate jurisdiction . . . over inmate appeals of decisions by intra-prison
disciplinary tribunals.” Id. at 359.
             With respect to our original jurisdiction over a grievance determination,
the Bronson Court explained:

             Even if [the petitioner] had invoked the court’s original
             jurisdiction by attempting to color the confiscation of his
             clothing as a violation of his protected constitutional
             property rights, his claim would fail. Prison inmates do not
             enjoy the same level of constitutional protections afforded
             to non-incarcerated citizens . . . . Unless an inmate can
             identify a personal or property interest . . . not limited by
             Department regulations and which has been affected by a
             final decision of the department the decision is not an
             adjudication subject to the court’s review.

             Prison inmates do not have the right to possess civilian
             clothing. Indeed, department directives specify exactly
             what personal property may be possessed or purchased
             either in the prison commissary or through outside sources.
             In light of the limitations placed on inmate possession of
             personal property by the Department, [petitioner’s] claim
             that his protected constitutional rights have been violated
             fails.
721 A.2d at 359-60 (citation and internal quotation marks omitted).

                                          8
            Recently, in the unreported case of Xavier, this Court granted the
Department’s preliminary objections and dismissed an inmate’s petition for review
alleging, among other claims, that the Department violated his First Amendment
rights in confiscating photographs and flyers that the Chief Grievance Officer
determined contained nudity.         The petitioner in that case alleged that “the
photographs and flyers did not contain nudity and thus did not violate DC-ADM
803.” Id., slip op. at 2. The petitioner further asserted that the adjudicators in the
grievance process “do not adhere to the language of DC-ADM 803, but impose their
own ‘benchmarks of morality’ in determining whether incoming materials comply
with Department policy.” Id. (citation omitted).
            As an initial matter, this Court in Xavier noted that the inmate was
effectively “requesting review of the Department’s internal administrative review of
the regulation of inmate property, i.e., the denial of arguably nude photographs and
flyers,” slip. op. at 3, and concluded that under Bronson, we lacked appellate
jurisdiction to review the petitioner’s claims.    This Court then concluded that
pursuant to Bronson, we did not possess original jurisdiction over the matter either,
providing the following rationale:

            Here, the Department regulations limit an inmate’s right to
            send or receive correspondence that contains obscene
            material while incarcerated. DC-ADM 803. In Brittain . . .
            [the] Supreme Court determined that prison administrators
            are owed substantial deference to their professional
            judgment regarding policies that serve legitimate goals of
            the correctional system, and upheld the Department’s policy
            prohibiting prisoners from possessing obscene material.

            Further, the Department’s regulations as codified at 37 Pa.
            Code §93.2(g), provide that incoming publications
            containing obscene material may not be received by
            inmates. This Court upheld those regulations in Payne v.


                                           9
               Commonwealth, Department of Corrections, 813 A.2d 918
               (Pa. Cmwlth. 2002) . . . . Thus, because this is an internal
               operating procedure and the Department has placed
               limitations on the material inmates can receive, this Court
               does not have original jurisdiction.
Xavier, slip op. at 4-5.
               Per his Petition and brief, Shore argues that DC-ADM 803 does not ban
non-nude photographs; the Chief Grievance Officer utilized “individualized
benchmarks of morality” to make her determinations, (Petition, ¶12); and the
photographs did not depict nudity as a matter of fact. In accordance with Xavier, the
Court concludes that because DC-ADM 803 curtails any property interest that Shore
may have in the photographs, and Shore’s Petition essentially disputes the
applicability of the policy on a factual level, the Court lacks jurisdiction to entertain
Shore’s claim insofar as it can be construed to advance an as-applied constitutional
challenge.5 Quite simply, under Xavier’s application of Bronson to DC-ADM 803,
the decisions of the Chief Grievance Officer as to whether a photograph depicts
nudity are not reviewable in either the Court’s appellate or original jurisdiction.
               Therefore, because Shore has failed to state a claim upon which relief
can be granted, the Court grants the Department’s preliminary objections and
dismisses his First Amendment claim.




       5
         Although unreported opinions are not binding precedent, the panel decision in Xavier
addressed a factual situation that is indistinguishable from the present matter and correctly applied
the law of Bronson to that factual situation. As such, the Court finds that Xavier provides strong
guidance and constitutes persuasive authority in resolving the case at hand and will adopt and
follow that case’s reasoning. See Commonwealth Court’s Internal Operating Procedures Section
414(a), 210 Pa.Code §69.414(a).



                                                 10
                               Procedural Due Process
             Shore argues that he alleged facts sufficient to establish that his
procedural due process rights were violated.        Shore posits that the Department
deprived him of his property by confiscating non-nude photographs absent an
adequate procedure through which he would be permitted to view the photographs
first-hand and make meaningful arguments before an impartial tribunal. According to
Shore, “[i]t is inherently unfair to expect an inmate to properly argue on appeal
reasons he should be awarded a rejected publication without being permitted to
physically view the publication,” (Petition, ¶13), and he contends that the Department
must adopt an “in camera” style proceeding with him present to satisfy the demands
of due process.
             The 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 initially establish the deprivation of a protected
liberty or property interest. Miller v. Workers’ Compensation Appeal Board (Pavex,
Inc.), 918 A.2d 809, 812 (Pa. Cmwlth. 2007). 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. Id.
             For present purposes, the Court assumes that the Department deprived
Shore of a legitimate property interest and turns to the issue of whether sufficient
procedural protections were available.
             “The amount of process due depends on the context presented.” Silo v.
Ridge, 728 A.2d 394, 399 (Pa. Cmwlth. 1999).         It is now a bedrock principle that
post-deprivation remedies satisfy the due process clause where the situation dictates



                                           11
that the State take immediate action or it is impracticable to provide any meaningful
pre-deprivation process. Parratt v. Taylor, 451 U.S. 527, 539 (1981); Tillman v.
Lebanon County Correctional Facility, 221 F.3d 410, 421 (3d Cir. 2000). When a
prison official confiscates a prisoner’s property in an allegedly unauthorized way,
whether it be negligently or intentionally, due process requires only the existence of
an adequate post-deprivation remedy because it is not feasible for a prison to provide
a hearing prior to taking property that is perceived to be contraband or against prison
regulations. See Hudson v. Palmer, 468 U.S. 517, 533-34 (1984); Parratt, 451 U.S.
at 541.
            In addressing the issue, the courts have repeatedly held that inmate
grievance systems are an adequate post-deprivation remedy, see, e.g., Tillman, 221
F.3d at 422, and this includes the Department’s tiered grievance procedure outlined in
DC-ADM 804. Mattis v. Dohman, 260 F. App’x 458, 461 (3d Cir. 2008); McEachin
v. Beard, 319 F. Supp. 2d 510, 514-15 (E.D. Pa. 2004). In a string of unreported
decisions, this Court has concluded that the Department’s grievance procedure in DC-
ADM 804 is a constitutionally sufficient remedy with respect to inmates’ claims that
the Department unlawfully withheld and/or confiscated personal property. See, e.g.,
Bullock v. Department of Corrections, (Pa. Cmwlth., No. 241 M.D. 2016, filed May
12, 2017) (unreported), slip op. at 9 (citing, inter alia, Brown v. Wetzel (Pa. Cmwlth.
No. 318 M.D. 2015, filed September 9, 2016) (unreported); Fennell v. N.D. Goss (Pa.
Cmwlth., No. 1198 C.D. 2015, filed February 5, 2016) (unreported)).
            The primary purpose and benefit of the grievance procedure is to allow
the Department “to address complaints about the program it administers before being
subjected to suit.” Jones v. Bock, 549 U.S 199, 218 (2007) (citation omitted). Prior
to filing a complaint alleging violation of federal rights, an inmate must exhaust the



                                          12
administrative grievance system in a complete and “proper” manner, and this
necessitates compliance with “critical procedural rules.” Kittrell v. Watson, 88 A.3d
1091, 1095 (Pa. Cmwlth. 2014) (citation omitted).     In particular, “a prisoner must
have utilized all available remedies in accordance with the applicable procedural
rules, so that prison officials have been given an opportunity to address the claims
administratively.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (citation and
internal quotation marks omitted).   Consequently, there is no due process violation
when the inmate fails to pursue a particular channel in the grievance procedure that
could potentially rectify a procedural irregularity or inadequacy occurring within the
grievance procedure itself. See Alvin v. Suzuki, 227 F.3d 107, 116-19 (3d Cir. 2000).
             In relevant part, the text of DC-ADM 804 provides that in a grievance,
“[t]he inmate shall specifically state any claims he/she wishes to make concerning
violations of Department directives, regulations, court orders, or other law.” DC-
ADM 804 §1.A.11.c. Pursuant to section 1 of DC-ADM 804, such claims involve
“[a]ny concern disputing [the] initial review responses, appeals decisions, or actions
of staff members who rendered those decisions . . . .” DC-ADM 804 §1.A.15. The
pertinent provisions of section 2, in turn, authorize both the Superintendent and the
Chief Grievance Officer to remand to the adjudicator below “for further
investigation/reconsideration” and/or “further review.” DC-ADM 804 §§2.A.2.d(5),
B.2(e)(4), B.2(g)(3).
             Based on the facts averred in the Petition, the Department confiscated
the photographs upon inspection and provided Shore with notifications that the
photographs were seized for violating the Department’s policy prohibiting nudity.
Although Shore alleges that he never viewed the photographs first-hand, there is
nothing in DC-ADM 804 that would prohibit Shore from requesting that he



                                         13
personally inspect the photographs during the grievance procedure. Arguably, a plain
reading of DC-ADM 804 indicates that an inmate’s request to review photographs, a
claim that a grievance adjudicator erred in failing to permit it, as well as a remand to
allow it, all fall within the purview of the grievance appeal procedure. Pursuant to
the principles espoused in the above case law, Shore cannot sit idly by during the
grievance process and now complain that the procedure is deficient for a reason that
could very well have been proven to be no reason had he taken full advantage of the
procedure.
             In other words, Shore cannot argue that the grievance system provides
inadequate process on the ground that he was not “permitted to physically view the
publications,” (Petition, ¶8), if he never asked to review the photographs. See also
Zeman v. Borough of Canonsburg, 223 A.2d 728, 729-730 (Pa. 1966). This is
because DC-ADM 804 is crafted in language that is apparently broad enough to allow
the issue to be heard and the relief granted and, as a result, the procedure is
presumptively both meaningful and adequate. Although Shore was obligated under
the rules to raise all available claims of error, the exhibits attached to his Petition
reflect that he did not request to view the photographs personally. Nor did he claim
that such a request was explicitly or implicitly rejected by the language of DC-ADM
804 or an adjudicator’s decision. The end result is that the Department was deprived
of an opportunity to apply DC-ADM 804 to the facts of this case and/or construe it in
a manner that would correct the alleged deficiency.
             Accepting the allegations in the Petition as true, the Court concludes that
Shore has not alleged a concrete, palpable defect in the procedural mechanism of DC-
ADM 804. Instead, absent any prohibitory language in the policy, Shore can only
speculate as to whether the Chief Grievance Officer would apply DC-ADM 804 to



                                          14
forbid him from viewing the photographs. The averments in the Petition otherwise
establish that Shore was afforded meaningful opportunities to respond, submitted
written objections throughout the grievance process, and received written decisions
from three different adjudicators within the Department. Because Shore’s “mere
dissatisfaction with the outcome . . . does not equate to a denial of due process,”
Fennell, slip op. at 4 (quotation marks omitted), his due process claim fails as a
matter of law. “This Court has declared that the Department’s grievance procedure is
a constitutionally-adequate and legal post-deprivation remedy,” Bullock, slip op. at 9
(citations omitted), and this general proposition remains true here.6

       6
          Even if it is assumed that the grievance procedure were constitutionally inadequate, Shore
may have an available post-deprivation remedy in the form of a state tort law action against the
Department to obtain monetary damages for destruction of the photographs or return of the
photographs if they were non-contraband personal property. See, e.g., Hawkins v. Coleman Hall,
C.C.F., 453 F. App’x 208, 211 (3d Cir. 2011) (concluding that an inmate’s ability to file a state law
tort action to seek relief for the alleged deprivation of personal property constitutes an adequate
post-deprivation remedy.”); Austin v. Lehman, 893 F. Supp. 448, 454 (E.D. Pa. 1995) (same). In
Pennsylvania, a tort law remedy is available for the possession and/or destruction of non-contraband
personal property by virtue of section 8522(b)(3) of what is commonly referred to as the Sovereign
Immunity Act, which waives immunity for negligent acts concerning “[t]he care, custody or control
of personal property in the possession or control of Commonwealth parties, including . . . property
of persons held by a Commonwealth agency[.]” 42 Pa.C.S. §8522(b)(3); see Williams v. Stickman,
917 A.2d 915, 917-18 (Pa. Cmwlth. 2007).

        Although this Court has held in unpublished decisions that an inmate may not assert the
intentional tort of conversion against employees of the Department, at least to the extent the claim
alleges willful misconduct, see, e.g., Palmer v. Sergeant (Pa. Cmwlth., No. 2451 C.D. 2015, filed
May 5, 2016) (unreported), slip op. at 9, conversion does not always “rest on proof of specific intent
to commit a wrong.” LB Foster Co. v. Charles Caracciolo Steel and Metal Yard, Inc., 777 A.2d
1090, 1095-1096 (Pa. Super. 2001). Instead, the tort may be based on “good faith” actions, id., as
well “as [the] loss-occasioning carelessness . . . resulting from [a] defendant’s negligence for which
damages may be recovered,” Egan v. Smith, 189 A. 488, 489 (Pa. 1937). In this regard, it is
possible that Shore has an adequate post-deprivation tort remedy against the Department’s
employees for the negligent possession and/or destruction of the photographs. See id.; Wolfe v.
Pennsylvania Co. for Insurance on Lives and Granting Annuities, 185 A. 292, 293 (Pa. 1936)
(recognizing the concept of “negligent conversion”); Bank v. City of Philadelphia, 991 F.Supp.2d
(Footnote continued on next page…)

                                                 15
              As a sub-part to his due process claim, Shore contends that the
Superintendent and Chief Grievance Officer violated the terms of DC-ADM 804
because they did not issue decisions within the designated time frame.
              “[A] state may create a liberty interest protected by the Due Process
Clause through its enactment of certain statutory or regulatory measures.” Hewitt v.
Helms, 459 U.S. 460, 469 (1983). A state regulation transcends a mere procedural
guideline when it uses “language of an unmistakable character,” i.e., when it contains
“the repeated use of explicitly mandatory language in connection with requiring
specific substantive predicates.”        Id. at 471-72.       Further, “[w]hen an individual
alleges a protected property interest in the receipt of a state created benefit, the
individual must establish more than a mere expectation to it; the individual must
demonstrate an actual entitlement to it.” Miller, 918 A.2d at 812.
              In general, allegations that the Department failed to follow its
regulations or internal policies cannot support a claim based upon a vested right or
duty because these administrative rules and regulations, unlike statutory provisions,
usually do not create rights in prison inmates. Tindell v. Department of Corrections,
87 A.3d 1029, 1035 (Pa. Cmwlth. 2014); Bullock v. Horn, 720 A.2d 1079, 1082 n.6
(Pa. Cmwlth. 1998). As one court explained:




(continued…)

523, 531 n.138 (E.D. Pa. 2014) (applying Pennsylvania law) (stating that “conversion is not
necessarily an intentional tort” and concluding that “the rule prohibiting indemnity for intentional
torts would not bar indemnification for negligent conversion.”); see also Zuppo v. Department of
Transportation, 739 A.2d 1148, 1154-55 (Pa. Cmwlth. 1999) (discussing the “specific intent”
necessary to constitute “willful misconduct” for purposes of immunity); Lumber Insurance Co., Inc.
v. Allen, 820 F. Supp. 33, 34-37 (D.N.H. 1993).



                                                16
               Plaintiff simply asserts that the alleged failure to follow
               DC-ADM 804 denied him a meaningful post deprivation
               remedy per se.

               However, prison regulations do not, in themselves, confer a
               liberty interest protected by due process, and the failure of
               prison officials to follow [the Department’s] policy does
               not, in and of itself, result in a violation of due process. The
               simple fact that state law prescribes certain procedures does
               not mean that the procedures thereby acquire a federal
               constitutional dimension. Thus, violations of state statutes
               or rules or regulations that require certain procedures,
               which are not compelled by the Federal Constitution
               because there is no liberty interest that those state mandated
               procedures protect, do not make out a [due process] claim
               ....
Bohm v. Straw, (W.D. Pa., No. 12-16J, filed January 8, 2013) (unreported), slip op. at
15-17 (citations and internal quotation marks omitted);7 accord Glenn v. Delbalso,
599 F. App’x 457, 459 (3d Cir. 2015).
               In Weaver v. Department of Corrections, 829 A.2d 750 (Pa. Cmwlth.
2003), this Court rejected an argument similar to the one currently made by Shore,
concluding that although the Department’s officials issued untimely grievance
decisions, the time constraints in the administrative policies do “not create any
enforceable rights in a Pennsylvania state prison inmate.” Id. at 752. Notably, akin
to the policy at issue in Weaver, the time limitation in DC-ADM 804 is tempered by
disclaimer language that states “[t]his policy does not create rights in any person
. . . .” DC-ADM 803, VI.         In Weaver, we found this language to be “sufficient to
dispel any reasonable expectations that an enforceable right is created by the
[Department’s] policy.” Weaver, 829 A.2d at 753. Given Bohm and Weaver, Shore
cannot base a due process claim on an alleged violation of DC-ADM 804 because this

      7
          Available 2013 U.S. Dist. LEXIS 2543.



                                                  17
policy does not confer upon him a protected property or liberty interest under the due
process clause.
               Therefore, because Shore has not pled sufficient facts to set forth a
prima facie case, the Court grants the Department’s preliminary objections and
dismisses his due process claim.


                                           Conclusion
               For the above-stated reasons, the Court sustains the Department’s
preliminary objections and dismisses Shore’s Petition.8 Although Shore does not

       8
          In addition, the Court concludes that Shore’s First Amendment and due process claims,
which he admittedly asserts against the Department only, and not any officer/employee in either an
official or individual capacity, (Petition, ¶3), are barred by 11th Amendment and/or traditional state
immunity. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100 (1984) (“[A]
suit in which the State or one of its agencies or departments is named as the defendant is proscribed
by the 11th Amendment. This jurisdictional bar applies regardless of the nature of the relief
sought.”), accord Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139,
145 (1993) (concluding that injunction to restrain violation of federal law under Ex parte Young,
209 U.S. 123 (1908), has “no application in suits against the States and their agencies, which are
barred regardless of the relief sought.”); Warren v. Pennsylvania Department of Corrections, 616
A.2d 140, 142 (Pa. Cmwlth. 1992) (concluding that the Department is not subject to suit for
constitutional violations under 42 U.S.C. §1983); Lavia v. Department of Corrections, 224 F.3d
190, 195 (3d Cir. 2000) (“Because the Commonwealth of Pennsylvania’s Department of
Corrections is a part of the executive department of the Commonwealth . . . it shares in the
Commonwealth’s [11th] Amendment immunity.”); see also Alden v. Maine, 527 U.S. 706, 756-57
(1999) (holding that sovereign immunity shields States from private suits in state courts pursuant to
federal causes of action); Quern v. Jordan, 440 U. S. 332, 342 (1979) (holding that Section 1983
does not abrogate the States’ 11th Amendment immunity); Palmer v. Penn-Ohio Road Materials
Inc., 462 F.Supp 312, 315 (W.D. Pa. 1978) (noting that Pennsylvania’s sovereign immunity statute
especially preserved the Commonwealth’s 11th Amendment immunity); section 8521 and 8522 of
the Judicial Code, 42 Pa.C.S. §§8521, 8522 (preserving the Commonwealth’s sovereign immunity
and waiving it for only eight specified instances of negligent conduct).

       Although the Department does not raise this immunity defense in its preliminary objections,
the Court may do so sua sponte and utilize it as a ground upon which to dismiss the action. See
Section 6602(e)(2) of the Pennsylvania Prisoner Litigation Reform Act (PLRA), 42 Pa.C.S.
(Footnote continued on next page…)

                                                 18
seek leave to amend, the Court finds that amendment to the Petition would be a futile
exercise and that it is not reasonably probable that Shore could cure the legal
deficiencies discussed in this opinion. See Carlino v. Whitpain Investors, 453 A.2d
1385, 1388 (Pa 1982). Accordingly, the Court dismisses the Petition with prejudice.



                                                   ________________________________
                                                   PATRICIA A. McCULLOUGH, Judge




(continued…)

§6602(e)(2) (stating, in pertinent part, that” the court shall dismiss prison conditions litigation at
any time . . . if the court determines [the complaint or petition for review] 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.”); Paluch v. Palakovich, 84 A.3d
1109, 1112 (Pa. Cmwlth. 2014). Therefore, even if Shore has pled cognizable claims under the
First Amendment and due process clause, the doctrine of sovereign immunity would compel
dismissal of these claims.



                                                  19
               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brian Shore,                             :
                    Petitioner           :
                                         :    No. 653 M.D. 2016
               v.                        :
                                         :
Pennsylvania Department of               :
Corrections,                             :
                 Respondent              :


                                      ORDER


               AND NOW, this 31st day of July, 2017, the preliminary objections
filed by the Department of Corrections (Department) to the petition for review
(Petition) filed by Brian Shore in this Court’s original jurisdiction are hereby
sustained and the Petition is dismissed with prejudice.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
