           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mr. Carvell Rice,                              :
                                               : No. 169 M.D. 2015
                              Petitioner       : Submitted: October 9, 2015
                                               :
                       v.                      :
                                               :
Pennsylvania Department                        :
of Corrections,                                :
                                               :
                              Respondent       :


BEFORE:      HONORABLE BERNARD L. McGINLEY, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN                                       FILED: January 5, 2016


             This case arises out of a pro se petition for review filed by Carvell Rice
naming as respondent the Pennsylvania Department of Corrections (DOC). In his
petition for review, Rice, an inmate currently incarcerated at the State Correctional
Institution (SCI) at Frackville, seeks an order remanding his grievance to DOC to
explain its censoring of Rice’s outgoing mail and compelling DOC to dismiss the
misconduct charge against him.             Presently before this court are the preliminary
objections in the nature of a demurrer filed by DOC seeking dismissal of Rice’s
petition for review.        We sustain DOC’s preliminary objections and dismiss the
petition for review.
              In his petition for review, Rice alleges that he filed a grievance on June
20, 2014, because DOC employees made racial comments. Rice further alleges that
due to the grievance, DOC employees have retaliated against him by seizing and
censoring his mail. Specifically, Rice alleges that on July 18, 2014, he sent a letter to
his sister that was seized and censored without probable cause or DOC authority, and,
as a result, he received DOC Misconduct Report (Report) No. B400079. The Report
states that on July 18, 2014, in violation of DC-ADM 803, Rice, without permission
and against a direct written order, attempted to mail correspondence to his sister,
which gave explicit directions on how to covert the mail system to allow Rice to
correspond with a former inmate. (Report, 7/18/14, at 1.) Due to this violation, DOC
issued Report No. B400079 for: (1) using abusive, obscene, or inappropriate language
to or about an employee; (2) refusing to obey an order; and (3) unauthorized use of
the mail. (Id.)


              On July 24, 2014, the hearing examiner conducted a misconduct hearing
at which Rice stated that no rule violation was cited in the Report and, therefore, he
had no way of knowing what violation to defend against. The hearing officer found
that Rice committed the alleged misconduct.1


              On July 26, 2014, Rice filed a second grievance stating that the seizure
and censorship of his mail violated his rights.               This second grievance was
subsequently denied by the grievance officer as frivolous, and Rice appealed to the

       1
         Rice appealed to the Program Review Committee (PRC) and, on August 9, 2014, the PRC
denied his appeal. Thereafter, Rice appealed to the facility manager, who, on August 18, 2014,
upheld the PRC’s decision. Rice then appealed to the chief hearing examiner for final review. On
September 8, 2014, the chief hearing examiner denied Rice’s appeal.


                                               2
facility manager. On September 25, 2014, the facility manager remanded the second
grievance for a revised response. On October 7, 2014, the grievance officer again
dismissed the second grievance as frivolous.


            On October 12, 2014, Rice again appealed the second grievance to the
facility manager, questioning his mail surveillance. On October 29, 2014, the facility
manager denied the grievance, and Rice appealed to the Secretary’s Office of Inmate
Grievances and Appeals (Secretary’s Office), requesting that the reason for his mail
surveillance be addressed. On December 19, 2014, the Secretary’s Office remanded
the second grievance for a revised response.


            On January 6, 2015, the facility manager denied Rice’s second grievance
as frivolous and issued a revised response. Rice appealed to the Secretary’s Office
asking why DOC was monitoring his mail. On March 4, 2015, the Secretary’s Office
denied Rice’s appeal due to his failure to provide any new information and
determined that Rice’s issues had been properly addressed.


            Before this court, Rice seeks an order: (1) stating that DOC failed to
provide a response to Rice’s question as to why his mail was seized, opened, and
censored; (2) remanding the second grievance to DOC to answer Rice’s question as
to whether DOC was justified in opening and reviewing Rice’s outgoing mail and
whether such seizure of the mail was the result of retaliation; (3) stating that DOC
violated Rice’s due process rights in refusing to permit Rice to review evidence
against him at the misconduct hearing and failing to advise him of the specific rule
that was violated; (4) finding that Rice was denied his due process rights during the


                                          3
misconduct hearing as a result of DOC’s failure to advise him of a specific rule
violation and its failure to permit Rice to review the evidence against him; and (5)
dismissing the misconduct charge against Rice as a result of the constitutional
violations.


              On July 6, 2015, DOC filed its preliminary objections in the nature of a
demurrer to Rice’s petition for review.2 DOC contends that Rice’s petition for review
should be dismissed because this court lacks subject matter jurisdiction over prison
misconducts and grievances.


              To the extent Rice seeks to invoke this court’s original jurisdiction to
review his misconduct and grievance decisions, this court has stated “that those
claims could only be brought if the prisoner presented substantial constitutional
issues, the prisoner had filed an inmate grievance, and he or she had exhausted
internal administrative appeals.” Iseley v. Beard, 841 A.2d 168, 172 (Pa. Cmwlth.
2004).


              Rice contends that his “First and Fourth Amendment Constitutional”
rights were violated during his disciplinary proceedings. However, Rice fails to
supply any legal support for this argument, only stating that his mail was “censored


       2
          In ruling on preliminary objections in the nature of a demurrer, this court must accept as
true all well-pled allegations of material fact, as well as all inferences reasonably deducible from
those facts. Armstrong County Memorial Hospital v. Department of Public Welfare, 67 A.3d 160,
170 (Pa. Cmwlth. 2013) (en banc). We are not required to accept as true legal conclusions,
unwarranted factual inferences, argumentative allegations, or expressions of opinion. Id.



                                                 4
and seized in violation of the First and Fourth Amendments” to the United States
Constitution. (Pet. for Review, at ¶ 11.)


             The Fourth Amendment to the United States Constitution prohibits
unreasonable searches and seizures. The First Amendment to the United States
Constitution includes a general right to communicate by mail. Richardson v. Wetzel,
74 A.3d 353, 357 (Pa. Cmwlth. 2013). However,

             [p]rison inmates do not enjoy the same level of
             constitutional protections afforded to non-incarcerated
             citizens. . . . ‘[I]ncarceration 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 [DOC] regulations and
             which has been affected by a final decision of the [DOC]’
             the decision is not an adjudication subject to the court’s
             review.

Bronson v. Central Office Review Committee, 721 A.2d 357, 359 (Pa. 1998) (citations
omitted). Prison inmates do not have the right to correspond with another inmate,
either directly or through a third party. DOC directives specify with whom an inmate
may correspond and sets forth DOC’s right to open, inspect, and reject certain mail.
See DC-ADM 803. In light of the limitations placed on inmate correspondence by
DOC, Rice does not have a constitutional rights claim and, therefore, this court lacks
original jurisdiction.


             Rice also asserts that this court has appellate jurisdiction over the matter.
It is well established that prison officials must be given wide latitude in the
promulgation and enforcement of policies to govern internal prison operations and to

                                            5
carry out those policies free from judicial interference in order to preserve order and
maintain security within its facilities. Bronson, 721 A.2d at 358. DOC policies,
including DC-ADM 803, “embody decisions that are inherently committed to the
agency’s discretion,” Small v. Horn, 722 A.2d 664, 670 (Pa. 1998), and are not
subject to judicial second-guessing in a mandamus action.


               In his brief in response to DOC’s preliminary objections, Rice contends
that this court has jurisdiction because a formal grievance response is an official
agency decision.3 Rice further asserts that he “remain[s] adamant that [his] complaint
is about a misconduct.” (Rice’s Br. at 9.) Rice is essentially asking this court to
review DOC’s prison misconduct proceedings, which, barring exceptional
circumstances, are not subject to judicial review.


               The Pennsylvania Supreme Court has consistently held that “an internal
administrative tribunal that reviews the grievances and disciplinary sentences of those
already confined” is not “a government agency whose final decisions are appealable.”
Bronson, 721 A.2d at 358. Bronson further states that “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.”            Id. at 359.      The Pennsylvania




       3
          Rice, in his petition for review before this court, claims that this court has jurisdiction
pursuant to 42 Pa. C.S. §726, which gives the Pennsylvania Supreme Court extraordinary
jurisdiction over issues of “immediate public importance.” This rule, however, applies only to the
Pennsylvania Supreme Court and not this court.



                                                 6
Supreme Court could not be more clear. Therefore, we conclude that we do not have
appellate jurisdiction over Rice’s misconduct violation or his grievance.4


              Accordingly, we sustain DOC’s preliminary objections and dismiss
Rice’s petition for review.



                                            ___________________________________
                                            ROCHELLE S. FRIEDMAN, Senior Judge




       4
           DOC also contends that Rice’s petition for review should be dismissed because it fails to
set forth any viable legal claim against the respondent for which relief may be granted. However,
because we agree that we lack jurisdiction, we need not address DOC’s remaining issue. See Brown
v. Department of Corrections, 601 A.2d 1345, 1346 (Pa. Cmwlth. 1992) (stating that we do not
need to address the remaining issues because we lack jurisdiction).



                                                 7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mr. Carvell Rice,                            :
                                             : No. 169 M.D. 2015
                          Petitioner         :
                                             :
                    v.                       :
                                             :
Pennsylvania Department                      :
of Corrections,                              :
                                             :
                          Respondent         :




                                       ORDER


             AND NOW, this 5th day of January, 2016, we hereby sustain the
Pennsylvania Department of Corrections’ preliminary objections and dismiss the
petition for review filed by Carvell Rice.



                                             ___________________________________
                                             ROCHELLE S. FRIEDMAN, Senior Judge
