              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David Martin,                                 :
                       Petitioner             :
                                              :
                v.                            : No. 136 M.D. 2015
                                              : Submitted: November 20, 2015
Secretary John E. Wetzel,                     :
Superintendent James A. Eckard,               :
                  Respondents                 :


BEFORE:         HONORABLE DAN PELLEGRINI, President Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI                                FILED: December 15, 2015


                Before this court in our original jurisdiction are preliminary objections in
the nature of a demurrer filed by John E. Wetzel (Wetzel), Secretary of the
Department of Corrections (Department) and James A. Eckard (Eckard),
Superintendent of SCI-Huntingdon, (collectively, Prison Officials) in response to a
pro se petition for review filed by David Martin (Martin) challenging his placement
in a type of restrictive housing units, now or in the future.1




      1
          Martin was precluded from filing a brief.
                In his petition for review, Martin alleges that he was moved from SCI-
Huntingdon’s general population to the Restrictive Housing Unit (RHU) for fighting
and refusing to obey an order.              He avers that he was continuously, unlawfully
confined within the RHU under administrative custody status, despite his many
appeals to Eckard and a hearing examiner to be released into the general population.
Martin claims that his unlawful confinement has resulted in a violation of his
Fourteenth Amendment right to due process and has impeded his ability to partake in
rehabilitative programs to earn parole consideration.


                Martin also avers in his petition that Eckard and others wished to send
him to the Security Threat Group Management Unit (STGMU),2 which is regulated

      2
          Martin alleges in his petition for review:

                15. On January 13, 2015, Respondent Eckard signed [Martin’s] DC-
                141 part IV along with his subordinates who failed to identify
                themselves by way of signature or initials to substantiate their
                statement for supporting [Martin] being sent to the [STGMU].

                16. [Eckard] and his subordinates made their decision a day before
                [Martin’s] scheduled review (1/14/15) thus denying him a challenge
                of the reason for the referral to a SUB-RH4 that is NOT mentioned in
                any available policy such as the DC-ADM 801 or DC-ADM 802.

                17. [Martin] promptly appeal[ed] to Respondent Eckard who
                responded on January 26, 2015 stating in part: “I did review their
                decisions; however, there is no indication my review took place prior
                to 1/14/15.” The record discredits his statements which is done
                intentionally to falsify documents and misrepresent facts.

                18. [Martin] filed a final level appeal to the Chief Hearing Examiner
                Robin M. Lewis who concurred with the [Program Review
                Committee] and Respondent Eckard on February 19, 2015 and only
                stated that the [STGMU] referral has not yet been approved.
(Footnote continued on next page…)

                                                       2
by an unlawful policy established by Wetzel without the required public notice and
comment period and in violation of the Commonwealth Documents Law (Documents
Law)3 and the Regulatory Review Act (Review Act).4


                Martin asks this Court for a preliminary and permanent injunction
preventing the Prison Officials from transferring him to STGMU, and prohibiting the
Prison Officials’ “agents, successors in interest and all other persons in active concert
or participation with them from harassing, threatening, punishing or retaliating
against [Martin] because of this action or against any person who submitted a[n]
affidavit in this case on behalf of [Martin].” (Petition for Review at 8.) He also
requests that this Court grant him: 1) concurrent/supplemental jurisdiction for his
federal constitutional money claim; 2) costs for legal filings and attorney fees; and 3)
compensatory damages in the amount of $5,000.00 jointly and severally against each
and every Prison Official.




(continued…)


                19. [Martin] believes and therefore avers that Respondent Eckard is
                utilizing the referral process to cause [Martin] anxiety from isolation
                within the RHU.

(Petition for Review at 4.)

       3
           Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§1102-1602, and 45 Pa. C.S. §§501-
907, which, collectively, are known as the “Commonwealth Documents Law.” This was the official
short title of the 1968 enactment. See Section 101 of the Act of July 31, 1968, P.L. 769.

       4
           Act of June 25, 1982, P.L. 633, as amended, 71 P.S. §§745.1-745.15.




                                                  3
               The Prison Officials filed the instant preliminary objections in the nature
of a demurrer5 contending that Martin has failed to set forth a cause of action because
he has not articulated a liberty interest to which any process is due pursuant to the
Fourteenth Amendment because he has no right to be housed at a particular custody
level or within a particular housing unit. Moreover, they argue that Martin has no
right to receive a particular rehabilitative program that may lead to a favorable parole
determination from the Board of Probation and Parole because parole is nothing more
than a possibility, and a prisoner has no protected liberty interest in being released
from confinement prior to the expiration of his term.


               The Prison Officials also argue that Martin does not have standing to
raise the claim that STGMU was established unlawfully as he is not housed there.
Regardless, they argue that the policy which implemented the STGMU is exempt
from the Documents Law and Review Act because it is a security policy that deals
entirely with internal prison management decisions with no impact on the general
public as its purpose is to “house and provide programming to inmates who exhibit
certain behavior in connection with their affiliation with a Security Threat Group.”
(Preliminary Objections at 8.)




       5
          In ruling upon preliminary objections in the nature of a demurrer, the Court must accept as
true all well-pled facts and all reasonable inferences therefrom, and it must determine whether the
facts pled are legally sufficient to permit the action to continue. Karnes v. Attorney General of
Pennsylvania, 921 A.2d 591 (Pa. Cmwlth. 2007). For the Court to sustain preliminary objections, it
must appear with certainty that the law will permit no recovery, and all doubt must be resolved in
favor of refusing to sustain the objections. Baravordeh v. Borough Council of Prospect Park, 706
A.2d 362 (Pa. Cmwlth. 1998).



                                                 4
             In ascertaining whether a due process violation has occurred, “a
determination must initially be made that a protected liberty interest exists and, if so,
what process is due.” Wilder v. Department of Corrections, 673 A.2d 30, 32 (Pa.
Cmwlth.), appeal denied, 681 A.2d 1344 (Pa. 1996). A prisoner has no protected
liberty interest to be housed at any particular custody level. Chem v. Horn, 725 A.2d
226, 229 (Pa. Cmwlth. 1999). Furthermore, confinement in an RHU does not violate
due process rights as segregated confinement does not impose an atypical, significant
deprivation as compared to ordinary prison life. Singleton v. Lavan, 834 A.2d 672,
675-76 (Pa. Cmwlth. 2003). Because Martin does not have a protected right to be
housed at any particular custody level, there has not been a due process violation with
regard to his housing status.


             With regard to Martin’s claim that his continued housing within RHU
prevented him from participating in programs that would earn him parole and
violated his due process rights, “a prisoner has no constitutionally protected liberty
interest in being released from confinement prior to the expiration of his maximum
term of sentence.” Evans v. Pennsylvania Board of Probation and Parole, 820 A.2d
904, 913 (Pa. Cmwlth. 2003). Rather, “parole is nothing more than a possibility, and
if granted, it merely constitutes a favor given by the state, as a matter of grace and
mercy, to a prisoner who has demonstrated a probability of his or her ability to
function as a law-abiding citizen in society.” Id (citations omitted). Martin’s ability,
or lack thereof, to participate in programs that could potentially expedite parole is not
a protected liberty interest because parole is not a protected liberty interest. Thus, his
confinement within RHU is not in violation of his due process rights.




                                            5
               The Prison Officials assert that Martin does not have standing to raise
the claim that STGMU was established unlawfully pursuant to the Documents Law
and Review Act as he is not housed within STGMU. An individual who is not
“adversely affected in any way by the matter he seeks to challenge is not ‘aggrieved’
thereby and has no standing to obtain a judicial resolution of his challenge.” William
Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 280-81 (Pa. 1975).
Furthermore, “it is not sufficient for the person claiming to be ‘aggrieved’ to assert
the common interest of all citizens in procuring obedience to the law.”              Id.
Regardless of Martin’s allegations that Eckard and others support moving him to
STGMU, he is currently not housed within STGMU and, therefore, not adversely
affected by STGMU or its founding policy. As a result, he lacks standing to bring
this claim.


               In any case, the Documents Law’s and Review Act’s procedures must be
followed whenever an administrative agency issues binding regulations. Small v.
Horn, 722 A.2d 664, 668-69 (Pa. 1998). Accordingly, “the first step in analyzing
whether a cause of action has been stated with respect to the Documents Law or
Review Act is to determine if the [directives] are in fact ‘regulations’ for purposes of
those acts or if they are … mere ‘policy amendments’ or ‘internal management
decisions.’”    Id. at 669.   Only those directives that “concern the interaction of
[Department] inmates and employees with the community at large” must be
published. Bundy v. Beard, 924 A.2d 723, 727 (Pa. Cmwlth. 2007).


               Our Supreme Court explained:




                                           6
            Because of the unique nature and requirements of the prison
            setting, imprisonment ‘carries with it the circumscription or
            loss of many significant rights ... to accommodate a myriad
            of institutional needs ... chief among which is internal
            security.    Accordingly, the Department must enforce
            reasonable rules of internal prison management to ensure
            public safety and prison security. These rules must be
            modified as conditions change, different security needs
            arise, and experience brings to light weaknesses in current
            security measures. Where, as here, the measure has at most
            an incidental effect on the general public, it is reasonable to
            conclude that the Legislature did not intend the measure to
            be subjected to the ‘normal [public] participation process.’


Small, 722 A.2d at 669-70 (citations omitted). Given that the purpose of SGMTU is
to house inmates who require extra security measures, the policy is within the realm
of SCI-Huntingdon’s internal management decisions with, at most, an incidental
impact on the general public. As such, Martin’s argument that the establishment of
STGMU violates the Documents Law and Review Act because it was established
without a public notice and comment period is without merit.


            Accordingly, the Prison Officials’ preliminary objections in the nature of
a demurrer are sustained and Martin’s petition for review is dismissed.



                                      __________________________________
                                      DAN PELLEGRINI, President Judge




                                          7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David Martin,                         :
                   Petitioner         :
                                      :
            v.                        : No. 136 M.D. 2015
                                      :
Secretary John E. Wetzel,             :
Superintendent James A. Eckard,       :
                  Respondents         :




                                     ORDER


            AND NOW, this 15th day of December, 2015, the preliminary objections
filed by Secretary John E. Wetzel and Superintendent James A. Eckard are sustained
and the petition for review filed by David Martin is hereby dismissed.



                                      __________________________________
                                      DAN PELLEGRINI, President Judge
