          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dwight Bowen,                         :
                  Petitioner          :
                                      :
            v.                        :
                                      :
Department of Corrections Houtzdale :
Superintendent Barry Smith, Houtzdale :
Deputy Superintendent David Close,    :
Houtzdale Deputy Superintendent B. J. :
Salamon Houtzdale Major J. Barrows :
and Houtzdale Major Rydbom,           :        No. 576 M.D. 2019
                  Respondents         :        Submitted: April 24, 2020


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                        FILED: August 28, 2020


             Before this Court in our original jurisdiction are the preliminary
objections filed by the Department of Corrections (Department) and various
employees at the State Correctional Institution (SCI) at Houtzdale (SCI-Houtzdale)1
(collectively, Respondents) to a petition for review (Petition) filed, pro se, by inmate
Dwight Bowen (Bowen). In the Petition, Bowen challenges the process he received
when Respondents decided to continue his placement in administrative custody
status, within the Restricted Housing Unit (RHU) and on a Restricted Release List

      1
        The individual Respondents are Superintendent Barry Smith, Deputy Superintendent
David Close, Deputy Superintendent B. J. Salamon, Major J. Barrows, and Major Rydbom.
(RRL), pursuant to the Department’s Administrative Directive 802 (DC-ADM 802).2
Upon review, we sustain Respondents’ preliminary objections in the nature of a
demurrer3 and dismiss the Petition.
               The facts as pleaded in the Petition are as follows.4 On January 2, 2019,
Bowen was transferred from SCI-Pine Grove to SCI-Houtzdale and was placed in a

       2
            DC-ADM 802 is a policy established by the Department to place an inmate in
administrative custody status whose presence in the general population would constitute a threat
to life, liberty, himself, staff, other inmates, the public, or the secure or orderly operation of the
facility. DC-ADM 802, Policy Statement § III. Administrative custody is a status of confinement
for non-disciplinary reasons that provides closer supervision, control and protection than is
provided in the general prison population. DC-ADM 802 § 3.A.1. An inmate confined in this
status may be placed in a Security Level 5 Housing Unit (L-5), including a Psychiatric Observation
Cell, by order of the Shift Commander, a psychiatrist, or a Certified Registered Nurse Practitioner
for various reasons, including if he is a danger to himself or has been charged with or is under
investigation for a violation of facility rules and there is a need for increased control pending
disposition of the charges or completion of the investigation. Id. § 1.B.1. An inmate confined in
this status does not have the same privileges as are available within the general population. Id. §
3.A.1.
         RRL placement occurs when the inmate poses a threat to the secure operation of the facility
and where a transfer to another facility or jurisdiction would not alleviate the security concern. Id.
§ 1.C.1. An inmate on the RRL cannot be released from the RHU or transferred to another facility
without the written approval of the Secretary or his designee. Id. § 4.B.1.
         We take judicial notice of DC-ADM 802, which appears on the Department’s official
website at https://www.cor.pa.gov/About%20Us/Pages/DOC-Policies.aspx (last visited August
27, 2020). See Figueroa v. Pa. Bd. of Prob. & Parole, 900 A.2d 949, 950 n.1 (Pa. Cmwlth. 2006)
(taking judicial notice of information found on Department’s website).
       3
          Pennsylvania Rule of Civil Procedure 1028(a)(4) provides that preliminary objections
may be filed by any party for legal insufficiency of a pleading (demurrer). Pa.R.C.P. No.
1028(a)(4). A preliminary objection in the nature of a demurrer tests “the legal sufficiency” of the
petition and will be sustained only in cases where the pleader has “clearly failed to state a claim
for which relief can be granted.” Clark v. Beard, 918 A.2d 155, 158-59 n.4 (Pa. Cmwlth. 2007).
“The demurrer may be granted only in cases which are so free from doubt that a trial would
certainly be a fruitless exercise.” Id.
       4
         We must accept all well-pleaded material facts and all inferences reasonably deducible
therefrom when evaluating a preliminary objection in the nature of a demurrer. Dodgson v. Pa.
Dep’t of Corr., 922 A.2d 1023, 1027-28 (Pa. Cmwlth. 2007); Clark, 918 A.2d at 158 n.4. We do
not have to accept as true conclusions of law, unwarranted inferences, argumentative allegations
or expressions of opinion. Dodgson, 922 A.2d at 1028. We may consider documents or exhibits
attached to the petition, but do not need to accept as true averments in the petition that conflict
                                                  2
Psychiatric Observation Cell because he was a danger to himself or others. Petition
¶ 41, Ex. D, p.16. Additionally, Bowen was placed in administrative custody status
because he was “under investigation for a violation of facility rules” at SCI-Pine
Grove, and “there [was] a need for increased control pending disposition of charges
or completion of the investigation.” Id. at Ex. E, p.17. Bowen’s transfer and
placement in administrative custody status was related to the death of his cellmate
at SCI-Pine Grove and a subsequent investigation into how that death occurred. Id.
¶¶ 33-36.5 Though Bowen was discharged from the Psychiatric Observation Cell on
January 6, 2019, he remained in that cell until January 15, 2019, when housing space
became available in the RHU. Id. ¶ 18, Ex. N., p.47.
              On January 31, 2019, Bowen received another notice stating that he was
to “remain housed” in the RHU “pending further review” by security and the
Program Review Committee (PRC).6 Petition at Ex. E, p.18. Bowen appealed this
notice the same day. Id. at Ex. E, p.19. On February 1, 2019, Superintendent Barry


with the exhibits attached to it. Lawrence v. Pa. Dep’t of Corr., 941 A.2d 70, 71 (Pa. Cmwlth.
2007).
       5
       A criminal indictment was subsequently filed against Bowen for the death of his cellmate.
See Bowen Affidavit dated 12/24/19.
       6
         The PRC is a committee consisting of three staff members who conduct administrative
and disciplinary custody hearings and periodic reviews, make decisions regarding continued
confinement in an L-5 unit, and hear all first level appeals of misconducts. Torres v. Beard, 997
A.2d 1242, 1248 n.7 (Pa. Cmwlth. 2010). The PRC is required to, at least every 30 days, “ensure
each such inmate is reviewed to determine whether there is a continuing need for separation from
the general population.” DC-ADM 802 § 1.A.7.
        Here, Bowen brings his action against Deputy Superintendents David Close and B. J.
Salamon, two members of the PRC that reviewed his administrative custody status. See Petition
at Ex. H, p.31. Deputy Superintendent B. J. Salamon was also the facility manager at SCI-
Houtzdale. Id. at Ex. D, p.16. Bowen makes no specific factual allegations against Major J.
Barrows and Major Rydbom in the Petition, though he names these employees as parties to this
matter.

                                               3
Smith (Superintendent) rejected Bowen’s appeal as untimely. Id. at Ex. E, p.20.
Bowen appealed the Superintendent’s decision to the Chief Hearing Examiner, who
denied the appeal on February 26, 2019. Id. at Ex. E, p.21-22.
              On May 2, 2019, Bowen received a 90-day review of his administrative
custody status, at which time the PRC decided to continue it. Petition at Ex. A, p.8.7
On May 3, 2019, Bowen appealed this decision to the Superintendent, who denied
the appeal. Id. at pp. 23-25. Bowen then appealed to the Chief Hearing Examiner,
who concurred with the action taken by the PRC and the Superintendent. Id. at Ex.
E, p.26. On June 13, 2019, Bowen received another review of his administrative
custody status, wherein he was informed that he was placed on the RRL. Id. ¶ 5.
Bowen appealed the RRL placement and the result of his June 13, 2019 review, and
his appeal was ultimately denied by the Superintendent and the Chief Hearing
Examiner. Id. ¶ 6, Ex. H, pp.33-35.
              After approximately eight months in the RHU, on September 18, 2019,
Bowen filed the Petition with this Court. Bowen complains about the June 13, 2019
periodic review where it was determined that he would remain in administrative
custody, claiming he was “not given an adequate opportunity to be heard” as he was
“dismissed” from the hearing without a chance to address all of his concerns, in
violation of DC-ADM 802 and 37 Pa. Code § 93.11. Petition ¶¶ 4-5. Additionally,
Bowen asserts that during the June 13, 2019 periodic review, he was placed on the
RRL even though he had been “misconduct free and followed all the rules.” Id. ¶ 5.
Finally, Bowen avers that he has been in “behavior modified camera cells” for seven
months and complains about the “conditions of confinement.” Id. ¶ 7. Specifically,


       7
           Pursuant to DC-ADM 802, the PRC shall interview an inmate in administrative custody
status every 90 days, after the first 60 days, unless the Unit Management Team recommends an
earlier review. DC-ADM 802 § 2.D.5.
                                              4
Bowen alleges that he was housed in a cold cell because staff left the door to the
yard open, and there was a big fluorescent light that remained on all night.8 Id.
               For relief, Bowen seeks an order mandating his release from the RHU,
removal from the RRL, and an award of monetary compensation. Petition ¶ 46.
Bowen also requests that he be granted “all privileges” that a prisoner in
administrative custody status is entitled to receive, including “phone and kiosk
access once a week, extended commissary purchases, radio/tablet access in the cell,
to have his [television] in the cell and to be given general labor poll . . . pay and to
acquire employment.” Id. ¶ 47. Finally, Bowen requests to “be seen by psychology/
psychiatry about his fears. . . .” Id. ¶ 48.
               In response to the Petition, Respondents filed preliminary objections in
the nature of a demurrer. Respondents assert that Bowen has failed to state a claim
for which relief can be granted because he has not alleged a constitutional right that
has been deprived, such as a liberty interest or hardship with respect to the conditions
of his confinement, to entitle him to due process protection. Preliminary Objections
(POs) ¶¶ 25, 26. Even if Bowen has pled a liberty interest with respect to his
administrative custody status, Respondents contend that Bowen received adequate
due process because he received notice of the reasons for the placement, had an
opportunity to appeal the placement, and received periodic reviews of that
placement. Id. ¶ 32. Respondents further argue that placement on the RRL does not

       8
          Bowen also alleges that his property remained at SCI-Pine Grove after his transfer to SCI-
Houtzdale, and requests that his property be shipped to SCI-Houtzdale. Petition ¶¶ 41-45. Bowen
explains that his property was held at SCI-Pine Grove pending the Pennsylvania State Police’s
investigation into the death of his cellmate. Id. ¶ 41. However, an exhibit attached to the Petition
shows Bowen’s property was shipped to SCI-Houtzdale in March 2019. Petition at Ex. K, p. 39
(stating “[y]our property is here. You should be having an inventory of it conducted shortly.”).
See Lawrence, 941 A.2d at 71 (providing that courts do not need to accept as true averments in a
petition that conflict with the exhibits).

                                                 5
implicate due process because it does not affect the restrictive nature of an inmate’s
confinement. Id. ¶ 34. Based on the foregoing, Respondents seek dismissal of the
Petition.
               We begin by examining the nature of the relief Bowen seeks from this
Court. Bowen seeks mandamus relief in the form of an order requiring Respondents
to transfer him out of the RHU, discontinue his RRL placement, and grant him
certain privileges. Petition ¶¶ 45-48. Though Bowen also requests monetary
damages, the true nature of his request is to be removed from the RHU and,
therefore, sounds in mandamus. In support of his request, Bowen states that he was
not afforded the process due to him as provided by DC-ADM 802 or 37 Pa. Code §
93.11, and that his confinement is “significantly more restrictive” than others in
administrative custody status. Id. ¶¶ 4-5, 7.
               Mandamus is an “extraordinary writ” that compels the performance of
a ministerial act or mandatory duty when the petitioner demonstrates (1) a clear legal
right to relief, (2) a corresponding duty in the respondent, and (3) there are no other
adequate and appropriate remedies at law. Sanders v. Wetzel, 223 A.3d 735, 739
(Pa. Cmwlth. 2019) (citation omitted). “Mandamus is not available to establish legal
rights, but is appropriate only to enforce rights that have been established.” Wilson
v. Pa. Bd. of Prob. & Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008). Moreover,
mandamus cannot be used to compel a body vested with discretion to exercise that
discretion in a certain manner or to arrive at a particular result. Weaver v. Pa. Bd.
of Prob. & Parole, 688 A.2d 766, 776 (Pa. Cmwlth. 1997).
               Here, Bowen relies on the Department’s policy, DC-ADM 802, and the
regulation at 37 Pa. Code § 93.119 to support his request for mandamus relief.

      9
          The Department’s regulation provides:

                                                  6
However, we have repeatedly held that the Department’s policies do not create rights
in prison inmates, and a claim that Department employees failed to comply with
prison policy is not a basis for a cause of action. See, e.g., Sanders, 223 A.3d at 740
(citing Shore v. Pa. Dep’t of Corr., 168 A.3d 374, 386 (Pa. Cmwlth. 2017); Tindell
v. Dep’t of Corr., 87 A.3d 1029 (Pa. Cmwlth. 2014)). In fact, the regulation here
actually undermines Bowen’s claim as it specifically states “[a]n inmate does not
have a right to be housed in a particular facility or in a particular area within a
facility.” 37 Pa. Code § 93.11(a) (emphasis added). Our courts have repeatedly
recognized this, stating “[i]t is entirely a matter of the Department’s discretion where
to house an inmate.” Clark v. Beard, 918 A.2d 155, 160 (Pa. Cmwlth. 2007). See
also Tindell, 87 A.3d at 1035 (“Allegations that corrections officers have failed to
follow rules and regulations promulgated by prison officials that do not also allege
this failure has violated a clearly established statutory or constitutional right of a
prison inmate cannot state a claim for mandamus, because administrative rules and
regulations ‘do not create rights in prison inmates.’”) (citing Commonwealth ex rel.
Buehl v. Price, 705 A.2d 933, 936 (Pa. Cmwlth. 1997); Lawson v. Dep’t of Corr.,
539 A.2d 69, 71-72 (Pa. Cmwlth. 1988)) (emphasis added).



              (a) An inmate does not have a right to be housed in a particular
              facility or in a particular area within a facility.

              (b) Confinement in a [RHU], other than under procedures
              established for inmate discipline, will not be done for punitive
              purposes. [The Department] will maintain written procedures which
              describe the reasons for housing an inmate in the RHU and require
              due process in accordance with established principles of law for an
              inmate who is housed in the RHU. Inmates confined in the RHU
              will be reviewed periodically by facility staff.

37 Pa. Code § 93.11.

                                              7
             In Sanders, 223 A.3d 735, this Court specifically rejected a similar
mandamus claim that DC-ADM 802 and 37 Pa. Code § 93.11 invoked rights or
imposed duties on the Department and its employees as they pertained to placement
in segregated housing. In so holding, we referred to the disclaimer language in DC-
ADM 802 providing that the policy does not create “rights” in inmates or duties for
the Department, and concluded that the policy does not create an actionable liberty
interest in connection with placement in segregated housing. Id. at 740-41. Further,
we explained that 37 Pa. Code § 93.11(b) does not create a right to due process when
an inmate is placed in segregated housing because the regulation states that it only
requires “due process in accordance with established principles of law.” Id. at 741-
42. Those established principles provide that placement in the RHU does not invoke
a protected liberty interest. Id.; see also Sandin v. Conner, 515 U.S. 472, 484 (1995)
(holding that a state regulation providing for an inmate’s placement in segregated
confinement did not invoke a protected liberty interest because the restraint did not
impose “atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life”).
             Nevertheless, Bowen argues that he has spent nearly eight months in
administrative custody and was denied the process to which he was entitled when
his administrative custody status was reviewed. Petition ¶¶ 4, 8. However, Bowen
cannot establish deprivation of a liberty interest based solely on the length of his
confinement because eight months is not an unduly lengthy period.              This is
particularly true here where Bowen supplied the Court with evidence that he was
placed in administrative custody based on the allegation that he killed his cellmate,
and the resulting criminal investigation and indictment. See Bowen Affidavit dated
12/24/19 (stating that the district attorney’s office got the “green light” to file the
indictment against him); see also Griffin v. Vaughn, 112 F.3d 703, 705-08 (3d Cir.
                                         8
1997) (holding that inmate placed in administrative custody for a period of 15
months while an investigation of a rape incident was underway did not subject the
inmate to “atypical and significant hardship” to support a state created liberty interest
and entitle him to due process).10 Likewise, Bowen’s placement on the RRL does
not invoke a protected liberty interest because it does not affect the restrictive nature
of his confinement; rather, it simply changes the decision-maker who must approve
his release from restricted housing. See Bowen v. Ryan, 248 F. App’x 302, 304 (3d
Cir. 2007).
               Simply put, Bowen is asking this Court to reverse the decision of
Respondents to keep him in the RHU and on the RRL, and to direct Respondents on
how to exercise their discretion with respect to his privileges during incarceration.
Mandamus cannot be used to direct the reversal or retraction of discretion already
taken, or to direct how Respondents exercise their discretion in the future. See
McGinley v. Pa. Bd. of Prob. & Parole, 90 A.3d 83, 93 (Pa. Cmwlth. 2014); Tindell,
87 A.3d at 1035; Clark, 918 A.2d at 160-61 (providing that mandamus may not be
used to compel an agency to exercise its discretion in a particular way, even if the
Court believes it has been exercised incorrectly).11

       10
          Cf. Bowen v. Ryan, 248 F. App’x 302, 304 (3d Cir. 2007) (per curiam) (providing that
Pennsylvania inmate’s confinement in administrative custody for 20 years was the type of atypical
and significant hardship to invoke a liberty interest and trigger due process protections; however,
the Department’s procedures satisfied minimum due process standards); Shoats v. Horn, 213 F.3d
140, 143-47 (3d Cir. 2000) (holding that Pennsylvania inmate’s confinement in administrative
custody for eight years in “virtual isolation” with no prospect of immediate release in the near
future imposed a significant hardship on the inmate in relation to the ordinary incidents of prison
life and was atypical, but finding no due process violation because the Department’s procedures
were followed).
       11
           Bowen also makes general complaints regarding the conditions of his confinement,
including that his cell is freezing cold and a big fluorescent light is left on all night, causing him
to lose sleep. Despite these allegations, we note that the Petition is in the nature of mandamus and
Bowen has not alleged that he has been denied certain life necessities, merely that the conditions
in administrative custody are inadequate. As we stated in Tindell,
                                                  9
               Because Bowen fails to identify a clear legal right to relief or duty owed
by Respondents, his mandamus claims must fail.12                          Therefore, we grant
Respondents’ preliminary objections in the nature of a demurrer and dismiss the
Petition.

                                              __________________________________
                                              CHRISTINE FIZZANO CANNON, Judge




               a conditions of confinement claim based on the adequacy of the life
               necessities provided, rather than whether or not inmates are being
               deprived of those baseline necessities cannot be stated in a
               mandamus action; a mandamus action can compel prison officials
               to clothe inmates within their care, but it cannot be used to determine
               the quality of clothing necessary under society’s standards and to
               order that only clothing of that quality be used to clothe inmates.

87 A.3d at 1042. Like the inmate in Tindell, Bowen’s allegations regarding the conditions of his
confinement in the RHU and the Psychiatric Observation Cell ask this Court to establish what his
rights are rather than to enforce clearly established rights. As such, he has not stated a claim for
mandamus. Id. at 1043.
       12
           Because Bowen fails to state a claim upon which relief can be granted, he is not entitled
to relief in the nature of monetary damages. Clark, 918 A.2d at 165-66.

                                                10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dwight Bowen,                         :
                  Petitioner          :
                                      :
            v.                        :
                                      :
Department of Corrections Houtzdale :
Superintendent Barry Smith, Houtzdale :
Deputy Superintendent David Close,    :
Houtzdale Deputy Superintendent B. J. :
Salamon Houtzdale Major J. Barrows :
and Houtzdale Major Rydbom,           :    No. 576 M.D. 2019
                  Respondents         :


                                  ORDER


            AND NOW, this 28th day of August, 2020, the preliminary objections
filed by the Pennsylvania Department of Corrections, Superintendent Barry Smith,
Deputy Superintendent David Close, Deputy Superintendent B. J. Salamon, Major
J. Barrows, and Major Rydbom, are SUSTAINED and the Petition for Review filed
by Dwight Bowen is DISMISSED.



                                    __________________________________
                                    CHRISTINE FIZZANO CANNON, Judge
