                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian O’Toole,                              :
                            Petitioner      :
                                            :
                      v.                    :
                                            :
Pennsylvania Department                     :
of Corrections,                             :   No. 228 M.D. 2018
                       Respondent           :   Submitted: June 22, 2018


BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE ANNE E. COVEY, Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION BY
JUDGE COVEY                                     FILED: October 16, 2018

                Before this Court are the Pennsylvania Department of Corrections’
(Department) preliminary objections in the nature of a demurrer (Preliminary
Objections) to Brian O’Toole’s (O’Toole) pro se Amended Petition for Review
(Petition) in the nature of a complaint in mandamus1 filed in this Court’s original
jurisdiction.
                                         Background
                O’Toole is incarcerated at the State Correctional Institution (SCI) at
Fayette (SCI-Fayette). According to the Petition and the documents attached thereto,
on March 26, 2018, the Department’s Executive Deputy Secretary for Institutional
Operations together with the Deputy Secretaries for the Eastern and Western Regions,
issued a memorandum to inmates setting forth its new policy regarding Timberland
and Rocky boots, as follows:



      1
         Although designated a Petition for Writ of Mandamus, the ad damnum clause includes a
request for injunctive relief.
              Effective immediately, Timberland and Rocky boots are no
              longer permitted to be purchased by inmates.
              Inmates that have these boots or any other manufacturers
              procured previously in their possession will have until
              Friday, May 11, 2018 to make arrangements to send them
              home or turn them in. Inmate boot orders that were placed
              prior to the suspension of boot sales on February 21, 2018
              and that have not been received/issued will be returned to
              the vendor upon receipt. The inmate will receive a full
              refund for the cost of the boots. Any boots found after
              Friday, May 11, 2018 will be considered contraband.
              ....
              Inmates that [sic] state[-]issued boots are unavailable
              through [Pennsylvania Correctional Industries (] CI[)] due
              to sizing and have been issued a boot or walking shoe in
              place of the standard issue state brown boots may retain
              those issued boots/shoes unless the boots are Timberland or
              Rocky boots. If they are Timberland or Rocky boots, they
              will be replaced with a security-approved shoe or boot.
              The Department will be working with CI in the coming
              weeks to offer a significant increase in the variety of
              sneakers being offered.

Petition Attachment 1 (March 26, 2018 Memorandum).
              On April 2, 2018, O’Toole filed a Form DC-135A (Inmate’s Request to
Staff Member) seeking a pre-deprivation hearing before his Timberland boots were
confiscated. See Petition Attachment 2. On April 3, 2018, O’Toole’s request was
denied with the notation: “Read DC[-]ADM 815 [(Personal Property, State[-]Issued
Items, and Commissary/Outside Purchases) (DC-ADM 815).2]” Petition Attachment
2.

       2
         The DC-ADM 815 sets forth the Department’s policy, inter alia, on prisoner footwear. It
specifies that inmates will receive one state-issued pair of shoes that remain in the inmate’s
possession and, where necessary for special work assignments, protective equipment including
boots that the work supervisor will keep. See DC-ADM 815 Policy Manual (Manual) at 1-1, 1-4.
Inmates are also permitted to purchase boots from the commissary, but may only possess two pairs
of boots at any one time. See Manual at 3-3. Section 3 of the Manual prohibits inmates from
                                               2
                                               Facts
               On April 5, 2018, O’Toole filed the Petition, claiming that his boots are
being illegally confiscated without due process and in violation of the Department’s
policy DC-ADM 815.3 On April 24, 2018, the Department filed the Preliminary
Objections contending that O’Toole’s Petition fails to state a due process claim
because he does not have a protected interest in the confiscated property.4 O’Toole
opposed the Department’s Preliminary Objections.


                                            Discussion
               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

possessing contraband, which “is defined as any item possessed by an inmate . . . that is . . .
expressly prohibited by those legally charged with the administration and operation of the
facility[.]” Manual at 3-4.
         3
           On April 13, 2018, O’Toole also filed a Petition to Open Peremptory Judgment on grounds
that if his boots are confiscated, he will lose the $92.65 purchase price, without having proper
access to the courts. On April 24, 2018, the Department objected to O’Toole’s Petition to Open
Peremptory Judgment because the Court has not entered any judgment. On May 3, 2018, this Court
denied O’Toole’s Petition to Open Peremptory Judgment and further ordered: “In the event that [the
Department] confiscates [O’Toole’s] boots, [the Department] shall not destroy [them] pending this
[C]ourt’s disposition of this matter.” May 3, 2018 Order.
         4
           On April 24, 2018, the Department filed an application to stay proceedings in the following
cases involving the same issue: Thomas v. Dep’t of Corr. (Pa. Cmwlth. No. 224 M.D. 2018); Cook
v. Exec. Deputy Sec’y of Pa. Dep’t of Corr. (Pa. Cmwlth. No. 249 M.D. 2018); Pittman v. Pa. Dep’t
of Corr. (Pa. Cmwlth. No. 266 M.D. 2018); Beaver v. Pa. Dep’t of Corr. (Pa. Cmwlth. No. 272
M.D. 2018). On May 3, 2018, this Court granted the Department’s application to stay the above-
captioned proceedings pending the outcome of this case. On May 22, 2018, O’Toole objected to the
Court’s stay order, claiming that he cannot adequately represent other inmates’ interest, and “by
taking this action[,] the Court has put a ‘BULLS EYE’ on [his] back.” O’Toole Obj. to Stay of
Proceedings in Similar Litigation at 1. On May 30, 2018, the Court nevertheless “confirmed” its
May 3, 2018 Order. May 30, 2018 Order.
                                                  3
              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 complaint and all inferences
              reasonably deducible therefrom.[5]       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
              complaint.

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted).
              In the Petition, O’Toole asserts:

              5. . . . These boots are being confiscated without a pre[-
              ]deprivation hearing in violation of [Section 101 of the
              Administrative Agency Law,] 2 Pa.C.S. § 101, and the
              [Department’s] own policy DC[-]ADM 815. ([C]opy
              attached).
              6. Private property cannot be taken by the government
              without due process. What process is due, at a minimum, to
              one who has lost property via the action of a Pennsylvania
              [s]tate [a]gency is addressed under Administrative Agency
              Law. [Section 101] of the Administrative Agency Law
              defines an ‘adjudication’ as any decision by an agency
              affecting property rights. The decision to confiscate my
              boots by the [Department], without my consent, is an
              adjudication under this definition.
              ....
              8. These boots are also being confiscated in violation of the
              [Department’s] own policy and procedures, DC[-]ADM
              815, which states[:]
                  DC[-]ADM 815, pg. 2/3, par[a]g. 6. Exceptions.



       5
         “[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).
                                               4
                   a. An inmate will be permitted to keep no longer
                   permitted items, as long as the items were noted on
                   [his] [I]nmate[] . . . Personal Property Inventory
                   form. . . [.] ([C]opy attached).
             9. These boots were chosen by the [Department], the only
             boots available for purchase, and sold to me by the
             [Department] at a profit, for $92.65.          ([M]aster
             [C]ommissary list attached).
             10. The [Department] has a duty to follow [its] own policy
             and procedures, in the instant matter DC[-]ADM 815, and
             ergo I [have] a right to keep my personal property.
             11. The [Department] has a duty, and I [have] a right, to a
             pre[-]deprivation hearing before confiscation of personal
             property pursuant to [Section 101 of the Administrative
             Agency Law].
             12. [O’Toole] has no adequate remedy at law, and will
             suffer irreparable [sic] harm if an emergency injunction is
             not issued in time.
             13. [O’Toole] contends that if granted, the [m]andamus
             order can be enforced.
             WHEREFORE, [O’Toole] request[s] this Honorable Court
             grant an [i]njunction to stop confiscation of personal
             property before May 11, 2018, enter an [o]rder of
             [m]andamus directing [the Department] to follow DC[-
             ]ADM 815 and allow me to keep my boots and/or to give
             me a pre[-]deprivation heari[n]g . . . , and/or to reimburse
             me $92.65 for the loss of property, and/or the remedy the
             Court finds lawfully appropriate.

Petition at 2-3.


                                      Due Process
             Initially, Section 1 of the Fourteenth Amendment to the United States
Constitution provides, in relevant part, that no state shall “deprive any person of life,
liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, § 1.
“Due process under the Pennsylvania Constitution emanates from a number of
                                           5
provisions, including Article I, Sections 1, 9, and 11.” Muscarella v. Commonwealth,
87 A.3d 966, 973 (Pa. Cmwlth. 2014). Article I, Section 1 of the Pennsylvania
Constitution, Pa. Const. art. I, § 1, similarly protects life, liberty and property
interests.6 Article I, Section 9 of the Pennsylvania Constitution provides, in pertinent
part, that a person shall not be “deprived of his life, liberty or property, unless by the
judgment of his peers or the law of the land.” Pa. Const. art. I, § 9. Article I, Section
11 of the Pennsylvania Constitution states, in relevant part, that “[a]ll courts shall be
open; and every man for an injury done him in his lands, goods, person or reputation
shall have remedy by due course of law[.]” Pa. Const. art. I, § 11.


   1. Protected Property Right
               “In order to establish that the [Department] violated his Fourteenth
Amendment right to due process, [O’Toole] must establish that he has been
deprived of life, liberty and property without due process of law. See U.S. Const.
Amend. XIV, § 1.” Silo v. Ridge, 728 A.2d 394, 399 (Pa. Cmwlth. 1999) (emphasis
added). However, this Court is mindful that

               [p]rison inmates do not enjoy the same level of
               constitutional protections afforded to non-incarcerated
               citizens. As the Robson [v. Biester, 420 A.2d 9 (Pa.
               Cmwlth. 1980) C]ourt observed, ‘incarceration brings about
               the necessary withdrawal or limitation of many privileges
               and rights, a retraction justified by the considerations
               underlying our penal system.’ [Id.] at 13 (citing Price v.
               Johnston, 334 U.S. 266 . . . (1948)).

Bronson v. Cent. Office Review Comm., 721 A.2d 357, 359 (Pa. 1998).



       6
         Article I, Section 1 of the Pennsylvania Constitution states: “All men are born equally free
and independent, and have certain inherent and indefeasible rights, among which are those of
enjoying and defending life and liberty, of acquiring, possessing and protecting property and
reputation, and of pursuing their own happiness.” Pa. Const. art. I, § 1.
                                                 6
               Relying upon this Court’s decision in Orozco v. Pennsylvania
Department of Corrections (Pa. Cmwlth. No. 268 C.D. 2013, filed January 14, 2014),
the Department asserts that O’Toole has no property right in his Timberland boots
and, thus, due process is not required. Orozco was based upon an April 14, 2011
Department memorandum7 issued to Pennsylvania inmates temporarily housed in a
Michigan facility8 informing them that they were authorized to bring back to
Pennsylvania only those personal items obtained in Michigan, including boots, then
available in the Pennsylvania prison commissaries. The inmates were instructed to
destroy, consume or ship to their families all non-compliant personal items before
they returned to a Pennsylvania facility. Upon the inmates’ return to Pennsylvania,
Department officials confiscated their non-compliant personal items. The inmates
filed complaints seeking replacement or compensation for the confiscated items. As
in the instant matter, the Department objected because the inmates had no
constitutional right to possess the confiscated property. The trial court consolidated
the cases and sustained the Department’s Preliminary Objections.                       This Court
affirmed the trial court’s decision on the basis that the Department employees’
purportedly wrongful confiscation was an intentional tort for which they enjoyed
sovereign immunity.
               Although      Orozco’s     complaint      did    not    specifically    include     a
constitutional property right claim, he argued on appeal that it did, and the Court
considered that claim to the extent it was encompassed therein. The Court ruled that
“[t]he Department had wide discretion to adopt a new policy in order to [specifically
address property transferred with inmates from out-of-state],”9 and the enforcement

       7
          Despite that the Orozco Court referred to the Department’s document as a bulletin, it was a
memorandum like the one the Department distributed on March 26, 2018 in this case.
        8
          Orozco was housed in Michigan from March 2009 to May 2011.
        9
          Although DC-ADM 815 authorized inmates transferred among intrastate facilities to keep
items listed on their property forms, it did not address transfers from out-of-state facilities.
                                                 7
of that policy did not violate the affected inmates’ constitutional rights. Id. slip op. at
6. The Orozco Court reasoned:

             Prison administrators are afforded wide-ranging deference
             in their adoption and enforcement of policies that are
             necessary to preserve order, discipline and security in
             prisons. Dehart v. Horn, 694 A.2d 16, 19 n.9 (Pa. Cmwlth.
             1997). 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. Olim v. Wakinekona, 461 U.S. 238,
             249 (1983); Weaver v. Pa. Dep’t of Corr., 829 A.2d 750,
             753 (Pa. Cmwlth. 2003); Bullock v. Horn, 720 A.2d 1079,
             1082 n.6 (Pa. Cmwlth. 1998). A prison regulation is valid
             if it is reasonably related to legitimate penological interests.
             Turner v. Safley, 482 U.S. 78, 89 (1987).
             In Small v. Horn, . . . 722 A.2d 664 ([Pa.] 1998), inmates
             argued that the Department’s policy of restricting their
             purchase of garments and requiring removal of all non-
             conforming apparel from the prison without just
             compensation deprived them of their constitutional property
             rights. In rejecting the argument, our Supreme Court stated:
                 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.’ Hudson v.
                 Palmer, 468 U.S. 517, 524 . . . (1984).
                 Accordingly, the Department must enforce
                 reasonable rules of internal prison management
                 to ensure public safety and prison safety. These
                 rules must be modified as conditions change,
                 different security needs arise[], and experience
                 brings to light weaknesses in current security
                 measures.
             [Small] . . . , 722 A.2d at 669-70. The Court noted that
             other courts had recognized that ‘reasonable prison
             regulations regarding the quantity and type of property
             that inmates may possess do not violate due process
             guarantees.’ Id. at . . . 671. See, e.g., Bell v. Wolfish, 441
             U.S. 520, 554 (1979) (holding that prisoners’ due process

                                            8
             rights with respect to possession of property are not
             absolute and are subject to reasonable limitations); Williams
             v. Meese, 926 F.2d 994, 998 (10th Cir. 1991) (finding no
             deprivation of property rights where a prisoner’s property
             was sent to an address of his or her choice).
             ....
             The Department’s bulletins [(i.e., memoranda)10] ‘embody
             decisions that are inherently committed to the agency’s
             discretion.’ Small, . . . 722 A.2d at 670. The April 14, 2011
             bulletin is reasonably related to the Department’s legitimate
             penological interest of maintaining order, discipline and
             security in the prison.

Orozco slip op. at 4-7 (emphasis added).
             O’Toole responds that the Department’s Preliminary Objections should
be overruled because Orozco is factually distinguishable, the Department’s March 26,
2018 policy was not properly implemented, and the Department failed to state how
Timberland boots impair its ability to maintain safety and order.
             Despite that Orozco is unreported and may not be cited as binding
precedent, it may be cited “for its persuasive value[.]”         Section 414(a) of the
Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
Although the facts underlying the Orozco decision differ from the instant case, given
the accurate summary of law regarding Department policy changes related to inmate
rights in personal property, this Court agrees with the Department that Orozco is
persuasive here.
             The law is well-settled that the Department has broad discretion to
fashion policies about what property inmates may possess, and to modify those
policies as security needs evolve or change. See Small; Dehart. Section III of DC-
ADM 815 Policy Statement (Policy) reflects: “It is the policy of the Department to

      10
         The documents in dispute in Small were not memoranda but bulletins that expressly
amended the Manual and were correspondingly numbered.


                                            9
ensure . . . inmates are provided the opportunity to purchase a reasonable variety of
items in addition to those furnished by the facility[.]” Policy at 1. Until March 2018,
among the variety of items available for inmate purchase were Timberland and Rocky
boots. However, Section VI of the Policy warns that the DC-ADM 815 “does not
create rights in any person . . . .” Policy at 2. Moreover, Section III of the Policy
declares that “limitations on the . . . variety of inmate property may be imposed for
security . . . and/or safety reasons[.]” Policy at 1. Section 2.A.4.f of the DC-ADM
815 Procedures Manual (Manual) expressly authorizes the Department’s Eastern and
Western Regional Deputy Secretaries to approve requests to discontinue “sales of
specific item[s] in the [a]pproved CI [c]atalog [that] may create a problem” at the
Department’s facilities. Manual at 2-2.
               According to the Department, the March 26, 2018 “policy change
occurred after the [widely-covered] February 2018 death of a Department
corrections[] officer who had been kicked in the head by an inmate wearing
Timberland-style boots.” Department Br. at 9 n.1. The Department did not include
this reasoning in the March 26, 2018 memorandum. 11 However, the Orozco Court
deemed valid the policy memorandum therein despite that it likewise did not notify
inmates of the specific safety concern underlying the policy.                        Moreover, the
Pennsylvania Supreme Court, in Small, upheld the Department’s 1997 revocation of
its policy permitting general population inmates to wear civilian clothing (supplied by
family members or purchased from approved third-party vendors) after civilian


       11
           O’Toole contends that the Department “ha[s] made no claim of how [his Timberland]
boots impair the ability of maintaining order, . . . impair [the Department’s] ability [to] administer[]
discipline, or after over ten years of sale[], with no change to design or material, the only boots they
[sic] choose [sic] and approved for sale[] are now a security risk.” O’Toole Ans. to Prelim. Obj. at
3. However, O’Toole offers no basis for his claim that the Department must specify to inmates a
safety reason for the policy change.



                                                  10
clothing played a role in a prison escape the month before. Finally, the Small Court
ruled, relative to an equal protection argument:

              [T]he freedom to wear civilian clothes while incarcerated is
              not a fundamental right. Therefore, the [policy change]
              need only pass the rational basis test. Under this test, the
              government need not have articulated the purpose or
              rationale supporting its action; it is enough that some
              rationale ‘may conceivably . . . have been the purpose and
              policy of the relevant governmental decision maker.’
              Nordlinger v. Hahn, 505 U.S. 1, 15 . . . (1992)[.]

Small, 722 A.2d at 672. Certainly, an inmate’s potential use of Timberland or Rocky
boots as a deadly weapon against Department staff is a rational safety reason for the
Department’s Regional Deputy Secretaries and their supervising Executive Deputy
Secretary for Institutional Operations to change the Department’s boot-style policy
without specifying to the inmates the reason therefor.
              O’Toole asserts that his property right in his Timberland boots stems
from the fact that the boots “were chosen by the [Department, were] the only boots
available for purchase, and [were] sold . . . by the [Department] at a profit[.]”
Petition ¶ 9. This Court acknowledges that the Approved Master Commissary List
attached to the Petition reflects that Timberland men’s leather boots were included
among the commissary items available for purchase. See Petition Attachment 5
(Approved Master Commissary List, page 11 of 15). In addition, O’Toole’s March 9,
2010 Form DC-153 (Inmate Personal Property Inventory) shows that he possessed
one pair of Timberland boots as of that date.12 See Petition Attachment 3. However,


       12
          O’Toole’s argument that DC-ADM 815 Section 2.6.a authorizes him to retain his personal
items because they were listed on his Form DC-153 fails. See Petition ¶ 8. Section 2.6.a of DC-
ADM 815 states: “An inmate will be permitted to keep no-longer-permitted items, as long as the
item(s) were noted on the inmate’s [Form DC-153] as of the effective date of the previous DC-
ADM 815, dated May 12, 2008.” Manual at 2-3 (emphasis omitted). Because the Department’s
boot policy was not effective and O’Toole’s Form DC-153 was not completed before May 12, 2008,
DC-ADM 815 Section 2.6.a does not apply in this instance.
                                              11
despite that Timberland boots were previously authorized for commissary purchase,
and O’Toole may own a pair, neither the Manual nor any Department regulation
expressly authorizes inmate purchase and/or possession of Timberland or Rocky
boots. Even assuming, arguendo, that the Manual specifically authorized Timberland
and Rocky boots, the Policy disclaimer that DC-ADM 815 “does not create rights in
any person,” Policy at 2, and Section III of the Policy that “limitations on the. . .
variety of inmate property may be imposed for security . . . and/or safety reasons”,
Policy at 1, “is sufficient to dispel any reasonable expectation that an enforceable
right [was] created by the [Department’s] [previous] policy.” Weaver v. Pa. Dep’t of
Corr., 829 A.2d 750, 753 (Pa. Cmwlth. 2003).
              In addition, the Department is authorized to make internal policy
changes by memorandum as it did in this instance.13 See Orozco. In Small, the
Supreme Court ruled that “the Department’s authority to make rules concerning the
management of [SCIs] can fairly be implied from its enabling statute.” Id. at 669.
The Small Court further held that the Department’s bulletins are not regulations and
do not amend existing regulations, “but instead embody decisions that are inherently
committed to the [Department’s] discretion[.]”              Id. at 670.      The Orozco Court
extended the Small Court’s reasoning about Department bulletins to Department
memoranda like the one issued herein. See Orozco, slip op. at 6 (i.e., the memoranda
too “are inherently committed to the [Department’s] discretion.” (quoting Small, 722
A.2d at 670)).


       13
           O’Toole asserted in the Petition that the Department failed to follow its policies and
procedures relative to DC-ADM 815. In his answer to the Preliminary Objections, O’Toole
specified that the new boot policy “does not comport with the Department’s Policy Management
Systems Procedures Manual” Section 1.1.1.D (relative to needs assessments preliminary to policy
changes policy). Ans. to Prelim. Obj. ¶ 9. However, the Department’s policy changes are clearly
internal processes, and there is nothing on the face of the Petition that, even if accepted as true,
would establish that the Department violated its policy adoption process before it distributed its
March 26, 2018 memorandum.
                                                12
               Based upon the facts O’Toole alleged in his Petition, the Department
exercised its discretion based on security concerns and properly changed a pre-
existing, discretionary policy.           “[D]epartment directives specify exactly what
personal property may be possessed or purchased either in the prison commissary or
through outside sources. See DC-ADM 815.” Bronson, 721 A.2d at 359-60. Under
the Department’s new policy, “[p]rison inmates do not have the right to possess
[Timberland or Rocky boots]. . . . In light of the limitations placed on inmate
possession of personal property by the [D]epartment, [O’Toole’s] claim that his
protected constitutional rights have been violated fails.” Id. Because O’Toole does
not have a constitutionally-protected right to possess his Timberland boots, he cannot
demonstrate a valid property interest for which due process was triggered by the
Department’s March 26, 2018 memorandum.14


       14
           In making their arguments to this Court, both parties cite to Turner, wherein the United
States Supreme Court ruled that even if a prison regulation impinges on an inmate’s constitutional
rights, the regulation can nevertheless be valid if several factors are met.
               Turner specifically directed courts to assess: (1) whether there is a
               ‘valid, rational connection’ between the prison regulation and the
               legitimate governmental interest asserted to justify it; (2) whether
               alternative means are open to inmates to exercise the asserted right;
               (3) what impact an accommodation of the asserted constitutional right
               will have on guards, inmates, and prison resources; and, (4) whether
               there are ‘ready alternatives’ to the rule that would accommodate
               prisoners’ rights at de minimus [sic] cost to penological interests.
Brittain v. Beard, 974 A.2d 479, 486 (Pa. 2009) (quoting Turner, 482 U.S. at 89-91). However,
Turner involved regulations promulgated by the Missouri Division of Corrections. At issue here is
a boot policy rather than a regulation. See Small; Orozco. Moreover, based on the Court’s holding
herein that the policy does not impinge on any constitutional rights in the first instance, this Court
need not further apply the Turner factors.
        Notwithstanding, the Pennsylvania Supreme Court has specifically ruled that “where a
prisoner’s property is sent to an address of his choice, no deprivation of property has taken place
because, although the prisoner no longer has possession of the property, he still retains control over
it.” Small, 722 A.2d at 671. Thus, even if O’Toole could establish a protected property right in his
Timberland boots, not all of the factors would be met, since the Department’s March 26, 2018
memorandum expressly allowed him to mail them out of the SCI. The fact that O’Toole is serving
                                                 13
   2. Adjudication
              “It is well settled that procedural due process concerns are implicated
only by adjudications, not by state actions that are legislative in character.” Small,
722 A.2d at 671.          Section 101 of the Administrative Agency Law defines
“adjudication” as “[a]ny final order, decree, decision, determination or ruling by an
agency affecting personal or property rights . . . of any or all of the parties to the
proceeding in which the adjudication is made.” 2 Pa.C.S. § 101. “Unless ‘an inmate
can identify a personal or property interest . . . not limited by [Department]
regulations and which has been affected by a final decision of the [D]epartment[,]’
the decision is not an adjudication subject to the court’s review.” Bronson, 721 A.2d
at 359 (quoting Lawson v. Dep’t. of Corr., 539 A.2d 69, 71 (Pa. Cmwlth. 1988)).
Ultimately, “[w]here no right, privilege or immunity of a person is in jeopardy, an
agency’s action does not constitute an adjudication.” In re Malehorn, 106 A.3d 816,
819 (Pa. Cmwlth. 2014), aff’d in part sub nom. Frasconi v. Dep’t of State, Bureau of
Comm’ns, Elections, & Legislation, 111 A.3d 167 (Pa. 2015). Here, because the
Department’s March 26, 2018 memorandum did not affect a right or privilege, it
“was not an adjudication, [and O’Toole] cannot succeed on a procedural due process
theory.” Small, 722 A.2d at 671; see also 2 Pa.C.S. § 101.


                                        Right to Relief
              In the Petition, O’Toole seeks mandamus and injunctive relief.
              [M]andamus is an extraordinary writ designed to compel
              performance of a ministerial act or mandatory duty where
              there exists a clear legal right in the petitioner, a
              corresponding duty in the respondent, and want of any other


a life sentence without parole does not change the fact that he would still retain control over his
boots.
                                                14
             adequate and appropriate remedy. Mandamus is not
             available to establish legal rights, but is appropriate only
             to enforce rights that have been established.

Stodghill v. Pa. Dep’t of Corr., 150 A.3d 547, 551 (Pa. Cmwlth. 2016), (quoting
Wilson v. Pa. Bd. of Prob. & Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008)
(citations omitted)), aff’d, 177 A.3d 182 (Pa. 2018). “Mandamus is not used to direct
the exercise of judgment or discretion of an official in a particular way.” Clark v.
Beard, 918 A.2d 155, 159 (Pa. Cmwlth. 2007). Therefore, this Court is prohibited
from directing the Department to change its discretionary boot policy or carry it out
in a particular manner.
             “To prevail in an action for injunction, a party must [likewise] establish
that his right to relief is clear, that an injunction is necessary to avoid an injury that
cannot be compensated by damages, and that greater injury will result from refusing
rather than granting the relief requested.” Buehl v. Beard, 54 A.3d 412, 419-20 (Pa.
Cmwlth. 2012) (emphasis added), aff’d, 91 A.3d 100 (Pa. 2014). As in a mandamus
action, O’Toole must, at a minimum, be able to establish a viable due process claim
in order to obtain injunctive relief.      In Myers v. Pennsylvania Department of
Corrections (M.D. Pa. No. 1:18-CV-00940, signed June 22, 2018), the United States
District Court for the Middle District of Pennsylvania dismissed an inmate’s
complaint filed pursuant to Section 1983 of the United States Code, 42 U.S.C. § 1983
(Section 1983 claim), inter alia, for failure to state a viable injunctive relief claim
prohibiting the Department from taking his Timberland boots without compensation.
Although the inmate’s arrangements for his boots rendered the injunction claim moot,
the court nevertheless declared that if that were not the case, the inmate would not be
entitled to injunctive relief since (despite the Department’s declaration that no boot
refunds would be issued) monetary damages could fully compensate the inmate for
his loss. We find Myers persuasive in that, if O’Toole met the other requirements, he
still would not be entitled to injunctive relief because he may have money damages
                                           15
available to him.15 However, because O’Toole does not have a property right subject
to due process protection, he cannot establish any clear legal right to relief and, thus,
this Court is precluded from granting him mandamus or injunctive relief.


                                     Conclusion
              Accepting as true all of the Petition’s well-pled allegations and
inferences reasonably deduced therefrom, it “appear[s] with certainty that the law will
not permit recovery.”         Torres, 997 A.2d at 1245.            Because O’Toole has not
articulated any factual or legal basis to support his due process claim, the
Department’s Preliminary Objections are sustained, and O’Toole’s Petition is
dismissed with prejudice.

                                            ___________________________
                                            ANNE E. COVEY, Judge




       15
          “‘Generally, decisions of federal district courts and courts of appeals are not binding on
this Court, . . . but they may have persuasive value.’ Unreported federal court decisions may also
have persuasive value.” Nagle v. Trueblue, Inc., 148 A.3d 946, 959 n.15 (Pa. Cmwlth. 2016)
(quoting GGNSC Clarion LP v. Kane, 131 A.3d 1062, 1069 n.15 (Pa. Cmwlth.), aff’d, 152 A.3d
983 (Pa. 2016)).


                                                16
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brian O’Toole,                          :
                         Petitioner     :
                                        :
                   v.                   :
                                        :
Pennsylvania Department                 :
of Corrections,                         :   No. 228 M.D. 2018
                       Respondent       :



                                      ORDER

             AND NOW, this 16th day of October, 2018, the Pennsylvania
Department of Corrections’ Preliminary Objections to Brian O’Toole’s (O’Toole)
Petition for Review (Petition) are sustained and O’Toole’s Petition is dismissed with
prejudice.


                                      ___________________________
                                      ANNE E. COVEY, Judge
