          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Russell Scott Shick, pro se               :
Linda Dianne Shick,                       :
                                          :
                           Petitioners    :
                                          :
                    v.                    : No. 583 M.D. 2016
                                          : Submitted: May 11, 2018
John E. Wetzel, Secretary,                :
PA Department of Corrections,             :
Trevor Wingard, Superintendent,           :
State Correctional Institution at         :
Somerset, Laurel Harry, Superintendent, :
State Correctional Institution at Camp :
Hill, Michael R. Clark, Superintendent, :
State Correctional Institution at Albion, :
                                          :
                           Respondents :



OPINION NOT REPORTED

MEMORANDUM OPINION
PER CURIAM                                         FILED: September 10, 2018



            Before the Court are the preliminary objections (POs) of Respondents
John E. Wetzel, Secretary of Corrections of the Pennsylvania Department of
Corrections (Department), Trevor Wingard, Superintendent of the State Correctional
Institution (SCI)-Somerset, Laurel Harry, Superintendent of SCI-Camp Hill, and
Michael R. Clark, Superintendent of SCI-Albion (collectively, Respondents) to the
pro se Complaint in Civil Action (Complaint) filed in this Court’s original
jurisdiction1 by Russell Scott Shick and Linda Dianne Shick (collectively, Shicks),
an inmate who has been housed at the foregoing SCIs at various points during the
service of his criminal sentences, and his wife. We sustain the PO and dismiss the
Complaint with prejudice.
               On October 15, 2016, the Shicks filed the Complaint seeking
compensatory and punitive damages in excess of $302,000 based on the damages
suffered by both flowing from the duress, strain, stress, and mental anguish caused
by the actions of the Respondents, acting both individually and in their official
capacities, during his incarceration.2 The Shicks also seek the expunction of two
misconduct charges imposed during this period.
               Specifically, the Shicks allege that Russell Shick has been subjected to
multiple drug screenings during his incarceration. In the three instances in which
the testing purportedly revealed the presence of controlled substances, misconduct
proceedings ensued and Russell Shick was sanctioned to serve time in the Restricted
Housing Unit (RHU). As a result, Russell Shick suffered restricted visitation
privileges precluding contact visits with his wife, his stepdaughter, and his
grandchildren; he was not permitted any open-air exercise; and his wife suffered
multiple indignities attendant to his restricted status.
               Additionally, while he was confined in the RHU, Russell Shick filed
grievances after he was denied access to his wheelchair. In one instance while

       1
           The Complaint shall be treated as a petition for review addressed to our original
jurisdiction. Section 761 of the Judicial Code, 42 Pa. C.S. §761; Pa. R.A.P. 1502, 1513.

       2
         Russell Shick is currently serving concurrent sentences of 7½ to 15 years and 2 to 6 years
based on his guilty pleas to aggravated assault and the manufacture, delivery, or possession with
the intent to manufacture or deliver a controlled substance. See Commonwealth v. Shick (C.P.
Cambria., Case No. CP-11-CR-0000785-2014); Commonwealth v. Shick (C.P. Jefferson, Case No.
CP-33-CR-0000193-2015).
                                                2
confined at SCI-Camp Hill, although his grievance was denied, he was transferred
to another unit and the wheelchair was returned to him. When he was disciplined
for a positive drug test result on his transfer to SCI-Albion, his wheelchair was
returned to him in return for the withdrawal of his grievance. Based on the foregoing
assertions, the Shicks allege violations of their constitutional rights to due process
and against cruel and unusual punishment, self-incrimination, and double jeopardy.
The Shicks specifically allege that Respondents’ liability is premised on respondeat
superior for all of the purportedly actionable claims in the Complaint. Complaint
¶¶B, D, E, F, G.
               On November 16, 2016, Respondents filed POs in the nature of a
demurrer to the Complaint.3 In the POs, Respondents argue: (1) the misconduct
hearings based on positive drug test results did not violate the Shicks’ due process
rights because Russell Shick does not have a liberty interest in remaining in the
general population; (2) the placement of Russell Shick in the RHU based on the
positive drug test results, and the temporary deprivation of access to his wheelchair,
do not constitute cruel and unusual punishment because remaining in the general
population is not a protected liberty interest and the wheelchair was returned; (3)
moreover, in this regard, individual government defendants must be personally
involved in the alleged wrongdoing because liability cannot be based solely on


       3
         “In ruling on preliminary objections, the courts must accept as true all well-pled facts that
are material and all inferences reasonably deducible from the facts.” Pennsylvania Independent
Oil & Gas Association v. Department of Environmental Protection, 135 A.3d 1118, 1123 (Pa.
Cmwlth. 2015), aff’d, 161 A.3d 949 (Pa. 2017) (quoting Guarrasi v. Scott, 25 A.3d 394, 400 n.5
(Pa. Cmwlth. 2011)). “However, we ‘are not required to accept as true any unwarranted factual
inferences, conclusions of law or expressions of opinion.’” Id. (quoting Guarrasi, 25 A.3d at 400
n.5). “To sustain preliminary objections, ‘it must appear with certainty that the law will permit no
recovery’ and ‘[a]ny doubt must be resolved in favor of the non-moving party.’” Id. (quoting
Guarrasi, 25 A.3d at 400 n.5).
                                                  3
respondeat superior and the Complaint fails to allege any personal involvement,
direction, or knowledge on Respondents’ part; (4) the Department’s drug screening
policy does not violate the Fifth Amendment because it is based on a valid
penological interest of ensuring public safety and prison security and does not violate
Russell Shick’s right against self-incrimination; and (5) the Shicks cannot establish
that the denial of contact violates their due process rights.
               As a federal district court4 has explained:

                      In a [Section] 1983 civil rights action[5] the Plaintiff
               must prove the following two essential elements: (1) that
               the conduct complained of was committed by a person
               acting under color of state law; and (2) that the conduct
               complained of deprived the Plaintiff of rights, privileges
               or immunities secured by the law or the Constitution of the
               United States. Further, Section 1983 is not a source of
               substantive rights. Rather, it is a means to redress
               violations of federal law by state actors.

                       It is well established that personal liability under
               Section 1983 cannot be imposed upon a state official based
               on a theory of respondeat superior. It is also well settled
               . . . that personal involvement of defendants in alleged
               constitutional deprivations is a requirement in a [Section]
               1983 case and that a complaint must allege such personal
               involvement. Each named defendant must be shown,
               through the complaint’s allegations, to have been
               personally involved in the events or occurrences upon
               which Plaintiff’s claims are based.
Atwell v. Lavan, 557 F. Supp. 2d 532, 540-41 (M.D. Pa. 2008) (citations and footnote
omitted).    See also Price v. Simcox (Pa. Cmwlth., No. 307 C.D. 2017, filed

       4
          “[T]he pronouncements of the lower federal courts have only persuasive, not binding,
effect on the courts of this Commonwealth . . . .” In re Stevenson, 40 A.3d 1212, 1221 (Pa. 2012).

       5
          The Shicks premised liability on 42 U.S.C. §1983. See Petition in Response to
Defendant’s POs ¶A.6 (“Petitioner would state that he rests his case regarding the referenced
section on this premise.”).
                                                4
September 28, 2017), slip op. at 9 (The “complaint contains no allegations that these
individuals personally engaged in any wrongdoing or actionable conduct. Merely
being in the ‘chain of command’ does not subject them to suit on a theory of
vicarious responsibility. DuBree v. Commonwealth, 393 A.2d 293, 295 (Pa. 1978)
[(plurality opinion)].”)6; Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)
(“A defendant in a civil rights action must have personal involvement in the alleged
wrongs; liability cannot be predicated solely on the operation of respondeat
superior. Personal involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence. Allegations of participation or
actual knowledge and acquiescence, however, must be made with appropriate
particularity.”).
               “Moreover, prisoners have no constitutionally-protected right to a
grievance procedure and participation in after-the-fact review of a grievance or
appeal is not enough to establish personal involvement for purposes of [Section]
1983.” Martin v. Giroux (Pa. Cmwlth., No. 1934 C.D. 2016, filed May 26, 2017),
slip op. at 8 (citations omitted). See also Bush v. Veach, 1 A.3d 981, 986 (Pa.
Cmwlth. 2010) (rejecting an inmate’s claims that a superintendent had actual
knowledge of or acquiesced in impermissible retaliatory acts through the
superintendent’s review of the appeals of the denials of the inmate’s grievances).
               In the instant matter, all of the Shicks’ claims are based on a theory of
respondeat superior, which is insufficient to support a valid Section 1983 claim
against the named Respondents. Atwell. Moreover, to the extent that the Shicks
assert the Respondents’ liability is based on their involvement in the appeals of the

       6
          See Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§69.414(a) (“Parties may . . . cite an unreported panel decision of this court issued after January
15, 2008, for its persuasive value, but not as binding precedent.”).
                                                5
denials of Russell Shick’s grievances, as outlined above, we have specifically
rejected such a claim to support the requisite direct involvement for purposes of a
Section 1983 claim. Martin; Bush.
                Accordingly, Respondents’ PO in the nature of a demurrer is sustained
and the Complaint is dismissed with prejudice.7




      7
          Based on our disposition of this PO, we will not consider the remaining objections.
                                                 6
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Russell Scott Shick, pro se               :
Linda Dianne Shick,                       :
                                          :
                           Petitioners    :
                                          :
                    v.                    : No. 583 M.D. 2016
                                          :
John E. Wetzel, Secretary,                :
PA Department of Corrections,             :
Trevor Wingard, Superintendent,           :
State Correctional Institution at         :
Somerset, Laurel Harry, Superintendent, :
State Correctional Institution at Camp :
Hill, Michael R. Clark, Superintendent, :
State Correctional Institution at Albion, :
                                          :
                           Respondents :


PER CURIAM

                                   ORDER


            AND NOW, this 10th day of September, 2018, Respondents’
preliminary objection in the nature of a demurrer is SUSTAINED, and Petitioners’
Complaint in Civil Action is DISMISSED with prejudice.
