               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Daryl Cook,                               :
                    Appellant             :
                                          :   No. 572 C.D. 2019
              v.                          :
                                          :   Submitted: September 13, 2019
Robert Smith                              :



OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                                FILED: February 7, 2020

              Daryl Cook appeals, pro se, from the February 12, 2019 order of the Court
of Common Pleas of Lycoming County (trial court), which granted summary judgment
on Cook’s civil complaint (Complaint) against Robert Smith, then Superintendent
(Superintendent) of the State Correctional Institution at Muncy (SCI-Muncy).


                                     Background
              Cook filed his Complaint in the trial court on August 14, 2017, naming
Superintendent as the sole defendant. (Complaint, Original Record (O.R.) at Item No.
1.) As alleged in the Complaint, at all times relevant Cook was then an inmate
incarcerated at SCI-Fayette. (Complaint ¶4.) On July 28, 2015, Cook received
approval to send a $300.00 check to his daughter, Khalia Landers, who was then an
inmate incarcerated at SCI-Muncy. Id. ¶¶6-7. Although Cook was approved to send
the money to Landers, on August 12, 2015, the check was returned to him. Id. ¶7.
Superintendent allegedly told Landers that the money was not placed in her prison
account because he had not approved the transfer. Id. at ¶8. Cook alleged that because
the $300.00 was not placed in Landers’ prison account, he sent a letter to
Superintendent on September 29, 2016, requesting to know why Landers was not
allowed to receive the money, who was responsible for returning Cook’s money to him,
and who decided to not notify Landers that the money was sent. Id. However,
according to the Complaint, Superintendent never responded to the letter. Id.
             Cook alleged that due to Landers not receiving the money, he and his
daughter had a falling out because they each believed the other was lying about having
sent and/or received the money. Id. ¶9. Cook averred that Superintendent acted in bad
faith by not allowing Landers to receive the money and not responding to Cook’s letter,
which caused Cook to suffer “intentional infliction of emotional distress,” “bad
reputation,” “defamation of character,” “loss of consortium with his daughter,” “loss
of association with his daughter’s sister,” “loss of family bond,” “loss of money,” “loss
of sleep,” “loss of appetite,” “loss of privacy,” “loss of freedom of choice,” “loss of
property rights,” “tortious interference of property rights,” and “cruel and unusual
punishment in violation of state common law, and [Cook’s] rights and protections
under the First, Fourth, Eighth, [and] Fourteenth Amendment[s] to the Constitution of
the United States and 42 U.S.C. §1983.” Id. ¶¶10-11. Cook sought a declaratory
judgment declaring that he had a right to send the money to Landers and that
Superintendent violated his rights under “state law and [the] Constitution and law of
the United States.” Id. ¶12. Cook sought compensatory damages in the amount of
$1,500,000.00 and punitive damages in the amount of $3,000,000.00. Id. ¶13.
             Cook did not serve the Complaint within 30 days of filing it and twice had
to have it reinstated. Cook finally served Superintendent on November 14, 2017;
however, Cook did not serve the Office of Attorney General (OAG). Superintendent
did not timely answer the Complaint and on December 12, 2017, Cook served
Superintendent with a notice of praecipe to enter default judgment. On December 27,
2017, the OAG, on behalf of Superintendent, filed an answer to the Complaint. On
January 10, 2018, Cook filed a praecipe for default judgment and the trial court

                                           2
prothonotary entered a default judgment against Superintendent. However, that same
day, Superintendent filed a petition to open the default judgment. In an opinion and
order dated February 9, 2018, the trial court struck the default judgment due to
“multiple defects on the face of the record.” (O.R. at Item No. 19.) In the same opinion
and order, the trial court placed the matter on the January-March 2019 trial term as a
non-jury trial and ordered discovery to be completed by October 19, 2018.
             The parties then proceeded to discovery. On June 4, 2018, Cook filed a
motion for sanctions or to compel discovery (First Motion for Sanctions).            On
September 17, 2018, the trial court granted the motion in part, ordering Superintendent
to (1) provide Cook with any grievances filed by Landers, and the results thereof; and
(2) answer Cook’s question as to whether Cook complied with Department of
Corrections (DOC) policy in his request and, if not, provide information on the section
of DOC policy that was violated. (O.R. at Item No. 25.) The trial court concluded that
the remaining objections were rendered moot as a result of Landers’ release from state
prison and/or the answers provided were sufficient. Id.
             On December 7, 2018, Superintendent filed a motion for summary
judgment. Superintendent argued that summary judgment was warranted because
Cook failed to exhaust administrative remedies by not filing a prison grievance for the
matter and failed to state a claim for which relief could be granted. On December 10,
2018, Cook filed a motion for sanctions or judgment on the pleadings (Second Motion
for Sanctions). Cook claimed that Superintendent had not complied with the discovery
order because he did not produce a DOC policy justifying the reason why Landers was
denied the money. Cook requested that the trial court order Superintendent to produce
such a policy as well as Landers’ request for approval to receive the check. Cook also
filed a brief in opposition to Superintendent’s motion for summary judgment, arguing
that there were no administrative remedies available because Superintendent never
responded to the informal letter request sent to him; Superintendent did not have a valid

                                           3
reason for refusing to approve Landers’ receipt of Cook’s check; and DOC policy did
not apply to a family member and/or violated the United States Constitution.
             Following a hearing, the trial court granted Superintendent’s motion for
summary judgment in an opinion and order dated February 12, 2019. The trial court
concluded that, pursuant to the Federal Prison Litigation Reform Act, 42 U.S.C.
§1997e, and section 6603 of the Pennsylvania Prison Litigation Reform Act, 42 Pa.C.S.
§6603, a prisoner must exhaust administrative remedies before he can pursue a civil
action in court. (Trial court op. at 4.) The trial court concluded that Cook failed to
exhaust administrative remedies and, therefore, dismissed his state and federal claims.
The court noted that although DOC’s inmate grievance system encourages inmates to
resolve issues by filing informal requests, the grievance system requires that inmates
file formal grievances with the Facility Grievance Coordinator, regardless of whether
the inmate’s informal request resolved the issue. Thus, the court determined that even
if Cook’s September 29, 2016 letter to Superintendent were deemed an informal
request under the grievance system, Superintendent’s failure to respond did not absolve
Cook of his duty to file a formal grievance. (Trial court op. at 5.)
             Additionally, the trial court concluded that even if Cook had exhausted
administrative remedies, Cook failed to state a claim on which relief could be granted
because it was undisputed that his check was returned to him, which meant that he had
not been deprived of a constitutionally protected property interest. The trial court also
reasoned that DOC policy requires both the inmate sending mail and the inmate
receiving mail to acquire approval before the mail can be properly processed and that
Landers did not obtain approval to receive the check. Id.
             After Cook filed his notice of appeal, the trial court directed him to file a
concise statement of errors complained of on appeal. In his statement, Cook challenged
the trial court’s decisions to strike the default judgment, deny the Second Motion for
Sanctions, and grant Superintendent’s motion for summary judgment. In an order

                                            4
dated June 4, 2019, the trial court stated that it was satisfied that its February 9, 2018
and February 12, 2019 opinions and orders sufficiently addressed the issues on appeal.
(O.R. at Item No. 48.) The trial court also noted that Cook’s Second Motion for
Sanctions was implicitly overruled by the trial court’s February 12, 2019 opinion and
order, as well as Cook’s own response in opposition to summary judgment. Id. The
trial court explained that in his opposition to summary judgment, Cook had attached a
letter from the OAG that complied with the Court’s September 17, 2018 discovery
order. Id. Based on the attachments to the opposition to summary judgment, the trial
court determined that on November 5, 2018, the OAG provided Cook with the
documents that Cook averred in the Second Motion for Sanctions had not been
delivered to him. Id.


                                              Discussion
               On appeal, Cook argues that the trial court erred and/or abused its
discretion in (1) striking the default judgment; (2) denying Cook’s Second Motion for
Sanctions; (3) granting Superintendent’s motion for summary judgment for failure to
exhaust administrative remedies; and (4) granting Superintendent’s motion for
summary judgment for failure to state a claim.1


       1
           This Court’s review of a grant of a petition to strike a default judgment is limited to whether
the trial court committed an error of law. City of Philadelphia v. David J. Lane Advertising, Inc., 33
A.3d 674, 677 n.6. (Pa. Cmwlth. 2011). “Orders regarding discovery matters are subject to the
discretion of the trial court.” Hill v. Kilgallen, 108 A.3d 934, 941 (Pa. Cmwlth. 2015). Generally,
“the imposition of sanctions for a party’s failure to comply with a trial court’s discovery orders is left
to the discretion of the trial court as are the sanctions themselves.” Id. This court “will not disturb
discovery orders without a showing of manifest[] unreasonableness, partiality, prejudice, bias, ill will,
or such lack of support in the law or record for the [trial court’s action] to be clearly erroneous.” Id.
(internal quotation marks omitted).
         Further, “[o]n appeal from a trial court’s order granting or denying summary judgment our
standard of review is de novo and our scope of review is plenary.” Brewington v. City of Philadelphia,
149 A.3d 901, 904 n.3 (Pa. Cmwlth. 2016), aff’d sub nom. Brewington for Brewington v. City of



                                                    5
               We first address whether the trial court erred in striking the default
judgment. Cook contends that the OAG received actual notice of his lawsuit, thus
negating the fact that he did not serve the OAG with his Complaint. He alleges that
the lack of technical compliance with the service of process rules did not result in any
disadvantage or prejudice to the OAG because the OAG received actual notice. Cook
also argues that because he was incarcerated, the sheriff should have been required to
serve the OAG and/or should have been required to inform Cook that he was required
to serve the OAG.
                Under Pennsylvania law, if there is a defect on the record as of the date
the default judgment was entered, i.e., one so obvious that it is apparent from the face
of the court record, then the default judgment must be stricken. Kreidie v. Department
of Revenue, 156 A.3d 380, 383 (Pa. Cmwlth. 2017). As pertains to the instant matter,
both section 8523(b) of the Pennsylvania Judicial Code, 42 Pa.C.S. §8523(b), and Rule
422(a) of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. No. 422(b), direct a
party serving process on any Commonwealth party to also serve it on the OAG. Where
a party fails to serve the OAG as required by 42 Pa.C.S. §8523(b) and Pa.R.C.P. No.
422(b), such a failure “cannot be overlooked,” “cannot be excused,” and “cannot be
waived,” and, therefore, constitutes a “fatal defect appearing on the face of the record”
at the time a default judgment is entered. Kreidie, 156 A.3d at 383-84; see also Mazur
v. Cuthbert, 186 A.3d 490, 496-97 (Pa. Cmwlth.) (concluding that service of the
complaint on the OAG is an “absolute prerequisite to the entry of a default judgment
against a Commonwealth party”), appeal denied, 198 A.3d 1052 (Pa. 2018).


Philadelphia, 199 A.3d 348 (Pa. 2018). Summary judgment is only appropriate “when, after
examining the record in the light most favorable to the non-moving party, and resolving of all doubts
as to the existence of a genuine issue of material fact against the moving party, the moving party is
clearly entitled to judgment as a matter of law.” Id. (internal quotation marks omitted).




                                                 6
               Here, the record shows that Cook did not serve the OAG with the
Complaint. See O.R. at Item Nos. 1, 5, 8-10. Cook argues that the OAG had actual
notice of the Complaint based on a letter attached to the Complaint, dated September
29, 2016, which he allegedly sent to the OAG nearly a year before filing the Complaint
to advise the OAG that he intended to file a lawsuit. However, the record is devoid of
evidence that this letter was actually sent by Cook or received by the OAG. Further,
even if the OAG had received the letter exhibiting Cook’s intention to file suit, it is
irrelevant; process of service on the OAG is mandatory and cannot be waived or
excused. Mazur, 186 A.3d 496-97; Kreidie, 156 A.3d at 383-84. The sheriff also had
no affirmative duty to serve the OAG with the Complaint where not directed to do so
by Cook. See Fraisar v. Gillis, 892 A.2d 74, 76 (Pa. Cmwlth. 2006) (explaining that
court functionaries have no duty to accomplish service for a pro se litigant or to instruct
pro se litigants on the rules of civil procedure). Accordingly, because Cook’s failure
to serve the OAG with his Complaint was a facial defect, the trial court did not err in
striking the default judgment.2
               Next, we address whether the trial court erred in denying Cook’s Second
Motion for Sanctions. Cook maintains that, despite the trial court’s discovery order
directing Superintendent to provide him with certain documents and answers to his
interrogatories, Superintendent failed and refused to comply with the order.                        In


       2
          Additionally, it appears from the record that the answer to the Complaint was filed before
Cook filed his praecipe for default judgment. See O.R. Item Nos. 11, 15. Pennsylvania courts have
generally held that where an untimely answer is filed before the filing of a praecipe for default
judgment, it will bar the entry of a default judgment because once the answer is filed the responding
party is no longer in default. See Mazur, 186 A.3d at 496-97; Vision Service Plan of Pennsylvania v.
Pennsylvania AFSCME Health & Welfare Fund, 474 A.2d 339, 341 (Pa. Super. 1984). Here, it
appears the answer to the Complaint was filed December 29, 2017, (O.R. at Item No. 11), and the
praecipe to enter default judgment was filed on January 10, 2018 (O.R. at Item No. 15). Hence,
because the answer was filed before the praecipe for default judgment, the trial court correctly struck
the default judgment.



                                                  7
particular, Cook alleges that Superintendent did not provide documents, including any
informal communications, that Landers submitted requesting to know the reason why
the money transfer was denied, and did not provide Cook with the DOC policy relied
on by Superintendent for withholding the transfer. Cook contends that he was
prejudiced by the trial court not granting and/or ruling on his Second Motion for
Sanctions prior to granting Superintendent’s motion for summary judgment.
              “Orders regarding discovery matters are subject to the discretion of the

trial court.” Hill, 108 A.3d at 941. Generally, “the imposition of sanctions for a party’s
failure to comply with a trial court’s discovery orders is left to the discretion of the trial
court as are the sanctions themselves.” Id. This Court “will not disturb discovery
orders without a showing of manifest[] unreasonableness, partiality, prejudice, bias, ill
will, or such lack of support in the law or record for the [trial court’s action] to be
clearly erroneous.” Id. (internal quotation marks omitted).
              We observe that in its September 17, 2018 order granting in part Cook’s
motion to compel, the trial court, in relevant part, ordered Superintendent to provide
Cook “with the grievances filed by Miss Landers, and the results thereof.” (O.R. at
Item No 25.) The trial court also directed Superintendent’s attorney to answer Cook’s
“question as to whether [Cook] complied with prison policy in his request” and, if not,
ordered Superintendent to “provide information as to the section of prison policy which
was violated in not allowing the transfer of money to take place.” Id. The court
concluded that the remaining objections were rendered moot as a result of Landers’
release from state prison and, therefore, that the previous discovery responses provided
by Superintendent were sufficient. Id.
              The trial court concluded in its June 4, 2019 order that Superintendent
complied with its discovery order. We agree. Cook’s opposition to Superintendent’s
motion for summary judgment contained a letter from Superintendent’s counsel that
was written in response to the trial court’s discovery order. (O.R. at Item No. 34.) The

                                              8
letter stated that Cook complied with DOC policy by requesting permission to transfer
the money to Landers. Attached to the letter were six pages of grievances filed by
Landers, and DOC’s responses thereto, concerning Landers’ request for the money
transfer. Id. The responses contained DOC’s reasons for denying the transfer,
including DOC’s determination that Landers had sufficient money in her account to
satisfy her needs. Id. Because the letter advised Cook whether he had complied with
DOC policy in requesting the transfer and provided the grievances submitted by
Landers, Superintendent substantially complied with the discovery order. While Cook
appears to fault Superintendent for not providing him any informal communications
from Landers to DOC, the discovery order did not order the production of such
documents; accordingly, we are unable to construe Superintendent’s failure to produce
such documents as a violation of the order.
             To the extent that the discovery order required Superintendent to provide
a copy of the policy he relied upon in not approving the transfer between Cook and
Landers, we note that Superintendent’s response did not produce or identify a particular
policy. However, since Superintendent indicated in his discovery response that Cook
did not violate a policy, pursuant to the trial court’s order Superintendent was arguably
not required to produce a policy.
             Regardless, even if the order is construed as requiring Superintendent to
produce the policy, Cook’s filings during the litigation of this matter demonstrate that
he was well aware of the policy governing money transfers to inmates. The Complaint
references the DOC policy governing such transfers, DOC Policy DC-ADM 803
§1(A)(3)(b), and the policy itself is attached to the Complaint. (Complaint ¶7, Exhibit
B.) Superintendent’s response to Cook’s discovery requests reiterated the policy,
noting that “[t]he transfer of funds from one SCI to another is a two-party process. If
the recipient does not have approval to receive the funds, they must be returned to the
sender.” (O.R. at Item No. 22.) Moreover, Superintendent’s motion for summary

                                           9
judgment contained a discussion and copy of the policy, and Cook’s opposition to
summary judgment discusses his belief that the policy is inapplicable to him. 3 (O.R. at
Item Nos. 30, 34.) Because Cook was already aware of the policy relied on by
Superintendent (and even had a copy of the policy), the information sought through
discovery was neither material to Cook’s case or the motion for summary judgment in
the evidentiary sense. See, e.g., Reeves v. Middletown Athletic Association, 866 A.2d
1115, 1124 (Pa. Super. 2004) (concluding that a party opposing summary judgment on
the ground that he was not afforded a reasonable time to complete discovery is under
an obligation to show that the information sought was material to the case); Kerns v.
Methodist Hospital, 574 A.2d 1068, 1074 (Pa. Super. 1990) (same).
                Because Cook already had a copy of the policy at issue, Superintendent’s
failure to produce the policy was not material to the motion for summary judgment,
and Superintendent otherwise complied with the trial court’s discovery order, the trial
court’s decision to deny the Second Motion for Sanctions was not manifestly
unreasonable or “clearly erroneous.” Hill, 108 A.3d at 941. Thus, we are unable to
conclude that the trial court abused its discretion in denying the motion.
                Next, we address whether the trial court erred in granting Superintendent’s
motion for summary judgment, based on Cook’s failure to exhaust administrative
remedies. Cook argues that after he sent Superintendent a letter asking him to transfer
the money to Landers, Superintendent had a duty to quickly and informally resolve
Cook’s concern or to refer Cook to an appropriate staff member to resolve the concern.
As a result of Superintendent not responding to the letter, Cook alleges that
Superintendent elected to not make the grievance system available to him. Cook also
maintains that the grievance system was not available to him because he did not know
where to file a grievance and was not told that he had to file a grievance. Cook further


      3
          Cook has also attached a copy of the relevant policy to his brief filed with this Court.


                                                   10
argues that the grievance system was inadequate and ineffective as a result of
Superintendent’s failure to respond to his letter and provide the reasons why the money
was returned to him.
               Pursuant to section (a) of the Federal Prison Litigation Reform Act, titled
“Applicability of administrative remedies,” “[n]o action shall be brought with respect
to prison conditions under [42 U.S.C. §1983], or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. §1997e(a). In addition, section
6603(a) of the Pennsylvania Prison Litigation Reform Act, titled “Limitations on
remedies for Federal claims,” provides as follows: “Prison conditions litigation[4] filed
in or remanded to a court of this Commonwealth alleging in whole or in part a violation
of Federal law shall be subject to any limitations on remedies established by Federal
law or Federal courts with respect to the Federal claims.” 42 Pa.C.S. §6603(a)
(emphasis added).
               Under the Pennsylvania Litigation Reform Act, “when federal claims are
asserted, exhaustion is mandatory.” Kittrell v. Watson, 88 A.3d 1091, 1095 (Pa.
Cmwlth. 2014). Exhaustion must also follow the proper procedures. Id. “Proper
exhaustion demands compliance with an agency’s deadlines and other critical
procedural rules because no adjudicative system can function effectively without
imposing some orderly structure on the course of its proceedings.” Id. Therefore, an
inmate is required to use all steps that the agency holds out. Id. One “necessary
corollary to the requirement” that an inmate follow administrative procedures is that if
an agency prevents the inmate from pursuing a policy, the agency does not “hold out a


       4
         Pennsylvania law defines prison conditions litigation as “a civil proceeding arising in whole
or in part under Federal or State law with respect to the conditions of confinement or the effects of
actions by a government party on the life of an individual confined in prison.” Section 6601 of the
Pennsylvania Prison Litigation Reform Act, 42 Pa.C.S. §6601.


                                                 11
remedy,” and, therefore, the remedy cannot be exhausted. Minor v. Kraynak, 155 A.3d
114, 125 (Pa. Cmwlth. 2017). Inmates are only required to exhaust such administrative
remedies as are available. Id. Yet, “the exhaustion requirement may not be avoided
on the grounds that filing a grievance would be futile or the relief that could be granted
by the grievance would be inadequate.” Salter v. Lamas (Pa. Cmwlth., No. 369 C.D.
2013, filed October 4, 2013), slip op. at 12.5
              Here, DOC’s Inmate Grievance System, set forth in DOC Policy DC-
ADM 804, “is intended to deal with a wide range of issues, procedures, or events that
may be of concern to an inmate.” DC-ADM 804.6 Prior to utilizing the grievance
policy set forth in DC-ADM 804, however, “[a]n inmate is encouraged to attempt
resolution of a concern informally.” Id. The staff member who receives an informal
written concern is “encouraged, when possible, to resolve every concern quickly and
informally.” Id. (emphasis added).
              When an inmate has a concern that he is unable to resolve informally, he
must then utilize the grievance process. DC-ADM 804 §1.A.5. The inmate grievance
process contains three steps. In Step 1, within 15 working days of an incident an inmate
must submit the initial grievance to the Facility Grievance Coordinator, who in turn
has 15 days to provide a written response. DC-ADM 804 §1.A, C. In Step 2, an inmate
has 15 days from receipt of the grievance response to appeal it to the Facility Manager
or Superintendent, who in turn must notify the inmate of his decision within 15 days of
receiving the appeal. DC-ADM 804 §2.A. If still dissatisfied, in Step 3 the inmate has
15 days from receipt of the appeal response to submit a final appeal to DOC’s Office


       5
          Pursuant to this Court’s Internal Operating Procedures, an unreported opinion of the Court
filed after January 15, 2008, may be cited for its persuasive value. 210 Pa. Code §69.414(a).

       DC-ADM 804 is available on DOC’s website at: https://www.cor.pa.gov/About
       6

%20Us/Documents/DOC%20Policies/804%20Inmate%20Grievances.pdf (last visited February 3,
2020).


                                                12
of Inmate Grievances and Appeals, which in turn has 30 days to respond to the inmate.
DC-ADM 804 §2.B. The grievance process culminates with the Office of Inmate
Grievances and Appeals’ response. Id.
               In the instant matter, although Cook attempted to resolve his concern
regarding the transfer of the funds informally, by sending a letter to Superintendent on
September 29, 2016, it is undisputed that he never filed a formal grievance pursuant to
DC-ADM 804. Cook argues that Superintendent’s failure to respond to his letter
absolved him of his duty to submit a formal grievance. However, DC-ADM 804
encourages, but does not require, DOC officials to resolve inmate concerns informally.
Therefore, the fact that Cook attempted to resolve the matter informally and did not
receive a response did not render the grievance process unavailable to him. See, e.g.,
Starcloud v. Kauffman (Pa. Cmwlth., No. 332 M.D. 2017, filed June 8, 2018), slip op.
at 6 (dismissing petition because, while the inmate had attempted to resolve his concern
informally, he did not submit an official grievance and, thus, had failed to exhaust
administrative remedies). Nor has Cook demonstrated that after sending his informal
letter he was prevented from filing a grievance, that the process was made unavailable
to him, or that the process was inadequate to remedy his grievance.7
               Pursuant to the Federal Prison Litigation Reform Act and 6603(a) of the
Pennsylvania Prison Litigation Reform Act, because Cook’s lawsuit was at least in part
based on federal law, i.e., 42 U.S.C. §1983, Cook was required to exhaust
administrative remedies before filing suit. See Kittrell, 88 A.3d at 1093. Cook failed


       7
          Cook also argues that he did not know where to file a grievance; however, DC-ADM 804
§1.A, states that a grievance should be filed with the Facility Grievance Coordinator/designee at the
facility where the grievance event occurred. As evidenced by Cook’s letter to Superintendent, which
was attached to the Complaint, see Complaint, Exhibit B, Cook was aware his money was returned
to him because the transfer was not approved by Superintendent and, thus, that the grievance event
occurred at SCI-Muncy.



                                                 13
to utilize DOC’s grievance process before filing suit; accordingly, we are constrained
to affirm the trial court’s order granting Superintendent’s motion for summary
judgment based on Cook’s failure to exhaust administrative remedies.
               However, even if we did not affirm the trial court’s order on that basis, we
would affirm the trial court’s order based on Cook’s failure to state a valid claim.
               Citing Santosky v. Kramer, 455 U.S. 745 (1982), Quilloin v. Walcott, 434
U.S. 246 (1978), and Harris v. Donahue, 175 F. App’x 746 (7th Cir. 2006), Cook
argues that he has a protected liberty interest under the Due Process Clause to the
United States Constitution8 in maintaining a parental relationship with his daughter and
to freely make personal choices affecting matters of family life. Cook contends that
his parental rights and right to maintain a parental relationship with his daughter were
interfered with by Superintendent’s use of prison policy to deny the transfer of funds.
Cook also appears to argue that the prison policy at issue does not require a family
member, who is also an inmate, to obtain approval to receive funds. Cook further
maintains that Superintendent did not have a legitimate reason for denying the money
transfer to Landers.
               We first observe that the DOC policy at issue, DC-ADM 803 §1.A.5,
which governs the transfer of money to or from inmates, provides, in relevant part, as
follows:
               An inmate may not . . . transfer or receive through any means
               whatsoever, negotiable instruments, money, or items of
               monetary value to or from any other inmate, former inmate,
               parolee, probationer, co-defendant, the individual family
               members of any of the preceding individuals . . . without the
               prior written approval of the Facility Manager/designee. . . .

       8
         The Due Process Clause to the Fourteenth Amendment to the United States Constitution
provides that no state shall “deprive any person of life, liberty, or property, without due process of
law.” U.S. Const. amend. XIV.




                                                 14
DC-ADM 803 §1.A.5 (emphasis added).9 This policy clearly requires both the inmate
transferring money and the inmate receiving money to obtain prior written approval
from the Facility Manager and does not provide an exception where the inmates are
family members. Accordingly, the policy relied on by Superintendent for withholding
the transfer unambiguously applies to Cook.
               We next turn to whether Cook raised a valid claim based on a fundamental
right to maintain a parental relationship with his daughter.10 In Quilloin, in the context
of determining the constitutionality of an adoption statute, the United States Supreme
Court recognized that “the relationship between parent and child is constitutionally
protected” and that it is cardinal “that the custody, care and nurture of the child reside
in the parents, whose primary function and freedom include preparation for obligations
the state can neither supply nor hinder.”               434 U.S. at 255 (citing Prince v.
Massachusetts, 321 U.S. 158, 165-66 (1944)). The Court also held that freedom of
personal choice in matters relating to family life is one of the liberties protected by the
Due Process Clause of the Fourteenth Amendment. Quilloin, 434 U.S. at 255.



       9
          DC-ADM 803 §1.A.5 is available on DOC’s website at: https://www.cor.pa.gov/About
%20Us/Documents/DOC%20Policies/803%20Inmate%20Mail%20and%20Incoming%20Publicatio
ns.pdf (last visited February 3, 2020).

       10
           To the extent that the Complaint raised other constitutional claims or state common law
claims, which is somewhat unclear from the face of the Complaint, Cook has failed to argue in his
brief that any such claims are valid. It is well-established that “[a]rguments that are not developed
by providing case law or record evidence are deemed to be waived and we are precluded from
addressing such issues.” School District of Philadelphia v. Jones, 139 A.3d 358, 365 (Pa. Cmwlth.
2016). “We decline to become substitute counsel for appellant, and as such, we will deem an issue
abandoned where it has not [been] properly developed in appellant’s brief.” Aveline v. Pennsylvania
Board of Probation and Parole, 729 A.2d 1254, 1256 n.5 (Pa. Cmwlth. 1999) (internal quotation
marks omitted). Here, Cook fails to argue in his brief that the trial court erred in granting summary
judgment on his other claims; accordingly, we are constrained to conclude that he has waived such
claims on appeal.


                                                 15
            Similarly, in Santosky, which examined the constitutionality of a statute
involving the termination of parental rights, the United States Supreme Court held that
natural parents have a fundamental liberty interest in the “care, custody, and
management” of their children and that a natural parent’s “desire for and right to the
companionship, care, custody, and management of his or her children is an interest far
more precious than any property right.” 455 U.S. at 753, 758-59 (internal quotation
marks omitted); see also Lassiter v. Department of Social Services of Durham County,
North Carolina, 452 U.S. 18, 27 (1981) (observing that “a parent’s desire for and right
to the companionship, care, custody and management of his or her children is an
important interest that undeniably warrants deference and, absent a powerful
countervailing interest, protection” (internal quotation marks omitted)); Stanley v.
Illinois, 405 U.S. 645, 651 (1972) (noting that the Court had frequently emphasized the
importance of the family and that the “rights to conceive and to raise one’s children
have been deemed essential”).
            Cook also relies on Harris, a Seventh Circuit Case which examined the
constitutionality of a prison policy that prohibited inmates convicted of child
molestation from visiting their minor children while in prison. 175 F. App’x at 747.
There, the court noted that “[p]arents have a liberty interest, protected by the
Constitution, in having a reasonable opportunity to develop close relations with their
children.” Id.
            While these cases discussed the constitutional right to the companionship,
care, and management of one’s children, all of these cases involved a parent’s rights
vis-à-vis minor children. The Supreme Court does not appear to have ever addressed
whether parents enjoy such rights with respect to emancipated, adult children. A
majority of the circuit courts that have addressed this question have concluded that
parents do not enjoy constitutional protections regarding adult children. In McCurdy
v. Dodd, 352 F.3d 820 (3d Cir. 2003), a case involving a 42 U.S.C. §1983 claim brought

                                          16
by a parent on behalf of an adult child killed by the Philadelphia Police Department,
the Third Circuit held that “the fundamental guarantees of the Due Process Clause do
not extend to a parent’s interest in the companionship of his independent adult
children.” Id. at 830 (emphasis added). The court also indicated that a 42 U.S.C. §1983
claim based on the parent-child relationship is not cognizable unless the official state
action is directed at the parent-child relationship. Id. at 830; see also Russ v. Watts,
414 F.3d 783, 790-91 (7th Cir. 2005) (holding that there was no recognized
constitutional right to recover for the loss of companionship of an adult child when that
relationship was terminated as an incidental result of state action). Likewise, in
Robertson v. Hecksel, 420 F.3d 1254 (11th Cir. 2005), the Eleventh Circuit held that a
parent does not have a constitutional interest in the companionship of an adult child.
Id. at 1260-62; see also Butera v. District of Columbia, 235 F.3d 637, 655-56 (D.C.
Cir. 2001) (concluding that when children grow up, their dependence on their parents
for guidance, socialization, and support gradually diminishes and, thus, “a parent does
not have a constitutionally protected interest in the companionship of a child who is
past minority and independent”).11
               As pertains to this matter, in the context of constitutional claims brought
by inmates, it is well-established that “[p]rison inmates do not enjoy the same level of
constitutional protections afforded to non-incarcerated citizens.” Bronson v. Central
Office Review Committee, 721 A.2d 357, 359 (Pa. 1998); O’Toole v. Pennsylvania
Department of Corrections, 196 A.3d 260, 265 (Pa. Cmwlth. 2018). This is because
“incarceration brings about the necessary withdrawal or limitation of many privileges


       11
          Cf. Chambers ex rel. Chambers v. School District of Philadelphia Board of Education, 587
F.3d 176, 191 (3d Cir. 2009) (recognizing an exception for adult children who are completely
dependent on their parents in nearly every aspect of daily life, such as an adult child who functions
on the level of a young child); but see Moreland v. Las Vegas Metropolitan Police Department, 159
F.3d 365, 371 (9th Cir. 1998) (holding that a mother had standing to bring Fourteenth Amendment
claim based on the deprivation of her liberty interest arising from the fatal shooting of her adult son).


                                                  17
and rights, a retraction justified by the considerations underlying our penal system.”
Bronson, 721 A.2d at 359; O’Toole, 196 A.3d at 266.                In assessing inmate
constitutional challenges, we employ a two-step approach that first asks whether the
challenged policy infringes upon any of the inmate’s constitutional rights. Bussinger
v. Department of Corrections, 29 A.3d 79, 83 (Pa. Cmwlth. 2011); Brown v. PA
Department of Corrections, 932 A.2d 316, 318 (Pa. Cmwlth. 2007). If we answer that
question in the affirmative, we next “determine whether the policy is nonetheless
reasonable, i.e., whether it is reasonably related to legitimate penological interests.”
Bussinger, 29 A.3d at 83 (internal quotation marks omitted). The second step analyzes
a number of factors including, inter alia, whether there is a valid and rational
connection between the prison regulation and the legitimate governmental interest
asserted to justify it. Id. at 83-84. In making this determination, “courts give
substantial deference to the professional judgment of prison administrators.” Id. at 84.
             Here, the challenged policy does not infringe upon any constitutional right
raised by Cook. While the United States Supreme Court has recognized a constitutional
right to the care, companionship, management, and custody of children, this has only
ever been applied by the Court in the context of parents’ relationships with their minor
children. See Santosky, 455 U.S. at 753; Quilloin, 434 U.S. at 255. The Third Circuit
and most other circuit courts that have addressed whether parents have a constitutional
right in the companionship of their adult children have concluded that such a right does
not exist. See Robertson, 420 F.3d at 1261; McCurdy, 352 F.3d at 830; Butera, 235
F.3d at 656. Cook has neither alleged that his daughter is a minor or is completely
dependent on him for all aspects of daily life; accordingly, he has failed to demonstrate
that DOC’s policy requiring inmates to gain approval before receiving funds from other
inmates infringes upon a constitutional right. Moreover, given that prison inmates do
not enjoy the same level of constitutional protections as non-incarcerated individuals,
see O’Toole, 196 A.3d at 265, even assuming arguendo that Cook had demonstrated a

                                           18
constitutional right to financially support his adult child, we are unable to conclude that
a DOC policy requiring inmates to obtain approval prior to transferring or receiving
funds, which incidentally affects the transfer of funds between inmates who happen to
be in a parent/child relationship, implicates any such constitutional right.12
               Finally, to the extent that Cook argues that Superintendent lacked a valid
reason for not approving Landers’ receipt of Cook’s $300.00 check, the
Superintendent’s decision is unreviewable. In Bronson, our Supreme Court determined
that “internal prison operations are more properly left to the legislative and executive
branches, and that 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.” 721 A.2d at 358; see also Kentucky Department of Corrections
v. Thompson, 490 U.S. 454, 460-61 (1989) (concluding that the conditions of
confinement to which a prisoner is subjected is within the sentence imposed on him
and if “not otherwise violative of the Constitution, the Due Process Clause does not in
itself subject an inmate’s treatment by prison authorities to judicial oversight”). Thus,
where a constitutional right is not otherwise implicated, this court lacks jurisdiction to


       12
           Likewise, even if we concluded that the DOC policy at issue infringed upon a constitutional
right, we would conclude that it was reasonably related to legitimate penological interests.
Superintendent contends that DOC has a legitimate interest in the way in which inmates use funds
because, through forbidding unauthorized transfers between inmates, it is able to “prevent undesirable
activities such as theft, gambling, strong-arming, and the selling of favors by inmates who have access
to money, supplies, equipment, etc.” (Superintendent’s Br. at 33) (citing Felton v. Ericksen (W.D.
Wis., No. 08-cv-227-slc, filed April 28, 2009), slip op. at 5, 2009 WL 1158685, at *2). We agree that
the DC-ADM 803 requirement that inmates obtain written approval from the Facility Manager before
transferring or receiving funds, is rationally related to the legitimate penological goal of preventing
such undesirable activities. See, e.g., Steffey v. Orman, 461 F.3d 1218, 1222-23 (10th Cir. 2006)
(holding that prison “officials have a legitimate interest controlling both the amount and source of
funds received by inmates” and that restrictions on funds received by inmates serves the legitimate
penological goal of “preventing inmates from using their family members to pay off their drug,
gambling or other debts to fellow inmates, or from extorting money from an inmate’s family with
threats of harm”).


                                                 19
review inmate claims challenging internal prison operating procedures or proceedings.
See Shore v. Pennsylvania Department of Corrections, 168 A.3d 374, 380-82 (Pa.
Cmwlth. 2017); Xavier v. Pennsylvania Department of Corrections (Pa. Cmwlth., No.
331 M.D. 2016, filed February 8, 2017), slip op. at 4-5; Weaver v. Pennsylvania
Department of Corrections, 829 A.2d 750, 751-52 (Pa. Cmwlth. 2003); see also Orozco
v. PA. Department of Corrections (Pa. Cmwlth., No. 268 C.D. 2013, filed January 14,
2014), slip op. at 4-5 (holding that “[a] prison authority’s adoption of policies and
practices creates neither rights in inmates nor a constitutionally protected interest
triggering the inmates’ due process protection”).
             Here, as recognized previously, DC-ADM 803 §1.A.5 requires an inmate
to obtain approval from the Facility Manager before receiving any money or negotiable
instruments from another inmate. The record shows that DOC denied Landers’ request
to receive the $300.00 check from Cook because it determined that she already had
sufficient money in her inmate account to satisfy her needs. (O.R. at Item No. 34.)
Because Cook failed to demonstrate that a constitutional right was impacted and DOC
has adopted an internal policy requiring DOC approval of money transfers between
inmates, we are unable to review DOC’s decision to deny Landers’ receipt of $300.00
in accordance with its policy.


                                     Conclusion
             Accordingly, because Cook failed to exhaust administrative remedies and
failed to state a claim on which relief could be granted, the trial court did not err in
granting Superintendent’s motion for summary judgment.




                                          20
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Daryl Cook,                             :
                   Appellant            :
                                        :   No. 572 C.D. 2019
              v.                        :
                                        :
Robert Smith                            :



PER CURIAM

                                    ORDER


              AND NOW, this 7th day of February, 2020, the order of the Court of
Common Pleas of Lycoming County, dated February 12, 2019, is hereby affirmed.
