            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darell Holmes,                        :
                   Petitioner         :
                                      :
            v.                        :
                                      :
Pennsylvania Department               :
of Corrections,                       :     No. 143 M.D. 2019
                 Respondent           :     Submitted: November 1, 2019


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                 FILED: February 3, 2020

            Before this Court are the Pennsylvania Department of Corrections’
(Department) preliminary objections (Preliminary Objections) to Darell Holmes’
(Holmes) pro se petition for review in the nature of a complaint for declaratory
judgment and injunctive relief (Petition) filed in this Court’s original jurisdiction.
After review, we sustain the Preliminary Objections and dismiss the Petition.


                                    Background
            On August 21, 2018, Holmes was charged with misconduct number
DO44470 (Misconduct) for possession of a dangerous or controlled substance. See
Petition ¶8, Ex. A. Prior to the issuance of the Misconduct, Holmes had been
residing in the Honor Block at the State Correctional Institution at Forest. See
Petition ¶2. After the issuance of the Misconduct, Holmes was held in pre-hearing
confinement until his Misconduct hearing on August 24, 2018. See Petition ¶13.
After the hearing, Holmes was found guilty of the charge and sanctioned to 60 days
in the Restricted Housing Unit (RHU). See Petition ¶25. Holmes appealed, and the
Program Review Committee (PRC) upheld the Misconduct. See Petition ¶¶34, 38.
Holmes further appealed to the Superintendent who also upheld the Misconduct. See
Petition ¶¶43, 45. Finally, Holmes appealed to the Office of the Chief Hearing
Examiner which, on December 10, 2018, vacated the Misconduct and remanded the
matter with leave to refile the charge. See Petition ¶¶49, 51. The charge was never
refiled. See Petition ¶53.
             Due to the Misconduct, Holmes remained in the RHU for 60 days and
then in a step-down unit for another 54 days. See Petition ¶65. Holmes was also
denied contact visits for 90 days. See Petition ¶40. The Department returned Holmes
to general population on December 11, 2018, the day after the Misconduct was
vacated.


                                        Facts
             On March 11, 2019, Holmes filed the Petition seeking: (1) a declaration
that the Department’s acts and omissions with respect to the Misconduct violated
Holmes’ rights under the United States (U.S.) and Pennsylvania Constitutions; (2) an
injunction directing the Department to remove the Misconduct from Holmes’
institutional file; (3) an injunction directing the Department to return Holmes to his
status as it existed before the Misconduct was filed; (4) an injunction directing the
Department to reestablish its Misconduct Policy (DC-ADM-801); (5) nominal
damages; and (6) compensatory damages. See Petition at 22-23. On April 18, 2019,
the Department filed its Preliminary Objections, alleging: (1) this Court lacks
jurisdiction over this matter; (2) intentional tort claims are barred by sovereign




                                          2
immunity;1 (3) the Prison Litigation Reform Act (PLRA)2 bars Holmes’ claim for
compensatory damages; (4) Holmes’ allegations do not support a claim for punitive
damages;3 and (5) Holmes does not state a due process claim.


                                            Discussion
               The law is well settled:

               In ruling on preliminary objections, we must accept as true
               all well-pleaded material allegations in the petition for
               review, as well as all inferences reasonably deduced
               therefrom. The Court need not accept as true conclusions
               of law, unwarranted inferences from facts, argumentative
               allegations, or expressions of opinion. In order to sustain
               preliminary objections, it must appear with certainty that
               the law will not permit recovery, and any doubt should be
               resolved by a refusal to sustain them.
               A preliminary objection in the nature of a demurrer admits
               every well-pleaded fact in the [petition for review in the
               nature of a] complaint and all inferences reasonably
               deducible therefrom. It tests the legal sufficiency of the
               challenged pleadings and will be sustained only in cases
               where the pleader has clearly failed to state a claim for
               which relief can be granted. When ruling on a demurrer,
               a court must confine its analysis to the [petition for
               review in the nature of a] complaint.

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (emphasis added; citations
omitted). “[C]ourts reviewing preliminary objections may not only consider the facts
pled in the complaint, but also any documents or exhibits attached to it.” Allen v.
Dep’t of Corr., 103 A.3d 365, 369 (Pa. Cmwlth. 2014).

       1
          “Pennsylvania courts . . . have allowed parties to plead the affirmative defense of immunity
as a preliminary objection where the defense is clearly applicable on the face of the complaint.”
Mazur v. Cuthbert, 186 A.3d 490, 497 (Pa. Cmwlth. 2018) (quoting Feldman v. Hoffman, 107 A.3d
821, 829 (Pa. Cmwlth. 2014)). Here, the immunity defense is clearly applicable on the face of the
Petition.
        2
          42 Pa.C.S. §§ 6601-6608.
        3
          Based on this Court’s review of the Petition, Holmes is not seeking punitive damages.
                                                  3
              Here, in response to Holmes’ request for an injunction directing the
Department to remove the Misconduct from his institutional file, the Department
attached a record of the Misconduct Exoneration to its Preliminary Objections as
Exhibit B.

              In asserting th[is] fact[], which [is] not apparent on the face
              of the Petition, [the Department has] filed an improper
              ‘speaking demurrer.’ Barndt v. Dep[’t] of Corr[.], 902 A.2d
              589, 591 n.2 (Pa. Cmwlth. 2006). However, [Holmes] did
              not file preliminary objections challenging the procedural
              propriety of [the Department’s] Preliminary Objection;
              accordingly, that issue is waived. See Dep[’t] of Justice v.
              Knox, . . . 370 A.2d 1238, 1240 n.4 (Pa. Cmwlth. 1977)
              (holding that, when objected to, ‘speaking demurrers’
              should not be considered) (citing Brennan v. Smith, . . . 299
              A.2d 683 (Pa. Cmwlth. 1972)); Pa. R.C.P. No. 1032(a)
              (stating, inter alia, that a party waives all objections which
              are not presented by preliminary objection, answer, or
              reply).

Tucker v. Beard (Pa. Cmwlth. No. 359 M.D. 2010, filed January 4, 2011), slip op. at
4 n.2; see also Colonial Sur. Co. v. Redevelopment Auth. of the County of Fayette
(Pa. Cmwlth. No. 859 C.D. 2016, filed July 25, 2017)4 (petitioner cannot claim that
the trial court erred in considering anything outside the petition because petitioner did
not object to the respondent’s preliminary objections). Here, Holmes did not file a
preliminary objection, answer or reply to the Department’s Preliminary Objections.
Accordingly, this Court holds that based on the Misconduct Exoneration, Holmes’
request for an injunction directing the Department to remove the Misconduct from his
institutional file is now moot.




       4
          Pursuant to Section 414(a) of the Commonwealth Court Internal Operating Procedures,
unreported opinions of a panel of the Commonwealth Court, if issued after January 15, 2008, may
be cited for persuasive value, but not as binding precedent. 210 Pa. Code § 69.414(a).


                                              4
              In its first Preliminary Objection, the Department asserts that, to the
extent Holmes is challenging the initial and mid-level Misconduct review, this Court
lacks jurisdiction.
              Holmes challenges the Department’s placing him in the RHU for 60
days, then to a step-down unit for another 54 days, and denying him contact visits for
90 days as a result of his Misconduct. “This Court and our Pennsylvania Supreme
Court have previously held that [the Department’s] decision[s] concerning charges of
misconduct against an inmate are beyond this Court’s . . . original jurisdiction.”
Brown v. Pa. Dep’t of Corr., 913 A.2d 301, 305 (Pa. Cmwlth. 2006).5 Accordingly,
this Court has no authority to address this claim and the Department’s first
Preliminary Objection is sustained.
              The Department next argues that Holmes’ intentional tort claims are
barred by sovereign immunity and must be dismissed.
              Holmes is claiming emotional and psychological damage due to the
Department’s actions. To the extent Holmes is asserting an intentional tort claim,
“[t]his Court has held that when an employee of a Commonwealth agency was acting
within the scope of his or her duties, the Commonwealth employee is protected by
sovereign immunity from the imposition of liability for intentional tort claims.”
LaFrankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992). Here, Holmes did
not name any individual Department employees who may have caused him alleged
emotional and psychological damage, nor did he allege that the issuance of the
Misconduct and subsequent procedures were not within the Department employees’
scope of duties. To the contrary, Holmes alleged that the Department followed its
current Misconduct Policy and requested this Court to reissue a modified Misconduct
Policy limiting pre-hearing confinement to specified misconduct. See Petition at 22.

       5
        In Brown, as here, the petitioner challenged, inter alia, the Department’s decision to place
him under restrictions for 30 days as part of his misconduct.
                                                 5
Since the Department employees were acting within the scope of their duties with
respect to the Misconduct, any claims against them would be barred by sovereign
immunity. Accordingly, this Preliminary Objection is sustained.
             The Department next contends that Holmes is barred by the PLRA from
recovering compensatory damages for mental and emotional injuries, and by the
Pennsylvania Constitution from recovering any damages.
             Initially, Section 6603 of the PLRA provides, in relevant part:

             (a) Limitations on remedies for [f]ederal claims.--Prison
             conditions litigation filed in or remanded to a court of this
             Commonwealth alleging in whole or in part a violation of
             [f]ederal law shall be subject to any limitations on remedies
             established by [f]ederal law or [f]ederal courts with respect
             to the [f]ederal claims.
             (b) Limitations on remedies under Pennsylvania law.--
             Prison conditions litigation arising in whole or in part due to
             an allegation of a violation of Pennsylvania law shall be
             subject to the limitations set forth in this act with respect to
             those claims arising under Pennsylvania law.

42 Pa.C.S. § 6603. To the extent Holmes is seeking compensatory damages for
mental and emotional injuries under federal law, Section 1997e(e) of the United
States Code mandates: “No [f]ederal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical injury or the
commission of a sexual act . . . .” 42 U.S.C. § 1997e(e). Here, Holmes has not
alleged a prior physical injury or a sexual act. Moreover, to the extent Holmes is
seeking any damages under the Pennsylvania Constitution, “[t]o date, neither
Pennsylvania statutory authority, nor appellate case law has authorized the award of
monetary damages for a violation of the Pennsylvania Constitution.” Jones v. City of
Phila., 890 A.2d 1188, 1208 (Pa. Cmwlth. 2006). Accordingly, this Preliminary
Objection is sustained.

                                            6
             The Department next objects to Holmes’ Petition because Holmes’
allegations cannot support a due process claim as a matter of law.
             To the extent that Holmes claims the Department’s failure to return him
to the Honor Block was a due process violation, “[t]he requirements of procedural
due process apply only to the deprivation of interests encompassed by the Fourteenth
Amendment’s protection of liberty and property. When protected interests are
implicated, the right to some kind of prior hearing is paramount.” Bd. of Regents of
State Colls. v. Roth, 408 U.S. 564, 569 (1972).
             “The [c]ourts of this Commonwealth and the [f]ederal [c]ourts have
consistently held that prison officials have the authority to determine where a prisoner
should be housed[,] and that the [d]ue [p]rocess [c]lause imposes few restrictions on
the use of that authority.” Singleton v. Lavan, 834 A.2d 672, 675 (Pa. Cmwlth.
2003). Thus, although Holmes does not specifically allege that his due process rights
had been violated, it is evident that his placement in the general population does not
violate his due process rights. Therefore, Holmes has failed to state a due process
claim upon which relief can be granted. As such, Holmes would not be entitled to an
injunction ordering the Department to return him from the general population to the
Honor Block. Accordingly, this Preliminary Objection is sustained.
             Finally, with respect to Holmes’ request for an injunction to stop the
Department from using its current misconduct policy (and reissue a modified policy
allowing prisoners to remain in the general population for minor offenses), the
Department argues that such request is not within the province of the courts because
it is a matter of prison administration. Specifically,

             [t]he United States Supreme Court generally defers to the
             judgment of prison officials in upholding regulations
             against constitutional challenge, because the problems of
             American prisons are complex and intractable ones with
             which the courts are ill equipped to deal. Shaw v.

                                            7
             Murphy, 532 U.S. 223, 229 . . . (2001). Accordingly, it
             employs a ‘unitary, deferential standard’ in reviewing
             prisoners’ constitutional claims. Id. ‘When a prison
             regulation impinges on inmates’ constitutional rights, the
             regulation is valid if it is reasonably related to legitimate
             penological interests.’ Id. (quoting Turner v. Safley, 482
             U.S. 78, 89 . . . (1987)).

Bronson v. Horn, 830 A.2d 1092, 1095 (Pa. Cmwlth. 2003), aff’d, 848 A.2d 917 (Pa.
2004) (emphasis added).
             Here, Holmes claims the Department should modify its misconduct
policy to permit prisoners to remain in the general population when they are charged
with less serious offenses. The United States Supreme Court has instructed that
“[w]e must accord substantial deference to the professional judgment of prison
administrators, who bear a significant responsibility for defining the legitimate goals
of a corrections system and for determining the most appropriate means to
accomplish them[,]” and “[t]he burden . . . is not on the [s]tate to prove the validity of
prison regulations but on the prisoner to disprove it.” Overton v. Bazzetta, 539 U.S.
126, 132 (2003). Because Holmes’ allegations do not disprove the validity of the
Department’s current Misconduct Policy, this Preliminary Objection is sustained.


                                      Conclusion
             Because it appears with certainty, based on the allegations in the
Petition, that the law will not permit the relief requested therein, Holmes cannot
establish a clear legal right to relief. Accordingly, the Department’s Preliminary
Objections are sustained, and Holmes’ Petition is dismissed.


                                        ___________________________
                                        ANNE E. COVEY, Judge




                                            8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darell Holmes,                      :
                  Petitioner        :
                                    :
            v.                      :
                                    :
Pennsylvania Department             :
of Corrections,                     :     No. 143 M.D. 2019
                 Respondent         :


                                   ORDER

            AND NOW, this 3rd day of February, 2020, the Pennsylvania
Department of Corrections’ Preliminary Objections to Darell Holmes’ (Holmes) pro
se petition for review in the nature of a complaint for declaratory judgment and
injunctive relief (Petition) are SUSTAINED, and Holmes’ Petition is DISMISSED.


                                    ___________________________
                                    ANNE E. COVEY, Judge
