              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kevin Williams,                         :
                   Petitioner           :
                                        :   No. 31 M.D. 2017
            v.                          :
                                        :   Submitted: June 2, 2017
Pa. Dept. of Corr’s, et al., at         :
SCI-Forest, Medical Depart.,            :
and Security Office,                    :
                    Respondents         :



BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                      FILED: September 5, 2017


            Before this Court in our original jurisdiction are the preliminary
objections filed by the Department of Corrections (Department) to the petition for
review (Petition) filed by Kevin Williams, a/k/a Kirby Stewart (hereafter, Williams).
We sustain the Department’s objections and dismiss Williams’ Petition.


                                    Background
            On January 26, 2017, Williams, an inmate at the State Correctional
Institution at Forest (SCI-Forest), filed his Petition against the Department, asking
this Court to compel the Department to order MRIs for his shoulder and knees, return
confiscated personal items, and change his living arrangements. (Petition, ¶11-14.)
            Specifically, Williams averred that on October 8, 2014, he went to the
medical unit in SCI-Forest complaining of problems with his knees, including a
“popping” sound when he climbed up to his top bunk. (Petition, ¶5.) The physician
ordered an x-ray of Williams’ knees, and, upon review of the x-rays, determined that
there were no significant findings.     Id.   Williams wrote several request slips
challenging the medical unit’s examination of his knees. Id. The medical unit gave
Williams ibuprofen for his knees. However, Williams was dissatisfied and filed an
internal grievance seeking an examination by a specialist, an MRI, or a CAT scan, all
of which were denied by the Department. Id.
            On October 23, 2015, Williams returned to the medical unit and sought
an examination of his left shoulder. (Petition, ¶8.) Williams told the medical staff
that his left shoulder makes “clicking” noises when he moved it around. Id. The
medical staff examined his shoulder, and, as Williams alleges, told him he “probably
[has] arthritis.” Id. Williams maintains that the word “probably” tells him that the
medical staff at SCI-Forest does not know what is wrong with his shoulder; therefore,
he wants a second opinion. Id. Williams filed another internal grievance pertaining
to the medical treatment he received in relation to his left shoulder. The grievance
was denied by the Department. Id.
            Williams now asks this Court to compel the Department to order MRIs
for his knees and shoulder, give him permanent bottom bunk status, and provide him
with pain medication. (Petition, ¶¶11, 13.)
            Additionally, Williams asks this Court to compel the Department to
return to him various personal items that were confiscated while he was in the
Restricted Housing Unit (RHU). (Petition, ¶6.) Williams alleges that, on April 30,
2015, he was taken to the RHU in response to an investigation with his cellmate. Id.



                                          2
During his time in the RHU, Williams filed two grievances—one grievance
concerning his confinement in the RHU and another relating to items that were
confiscated during a cell search.            Id.       Both grievances were denied by the
Department. Id.
              Further, Williams asks this Court to compel the Department to alter his
housing arrangement. (Petition, ¶¶9-10.) Specifically, Williams is unhappy that his
cellmate smokes cigarettes. Id. at ¶9. Williams is not a smoker and does not want to
endure secondhand smoke. Id. Williams states that, since his incarceration in 2000,
he has only had four cellmates that did not smoke cigarettes. Id. Williams avers that
he has a right to be in a smoke-free environment. Id. at ¶10. He maintains that unless
he is given a single cell, he will always be subjected to secondhand smoke. Id.
Williams filed internal grievances about the smoke in his cell and asked for a single
cell. Id. The Department denied his grievances and request for a single cell. Id. at
¶9.
              On January 26, 2017, Williams filed the present Petition against the
Department. (Petition, ¶1.)         On April 25, 2017, the Department filed preliminary
objections in the nature of a demurrer.1 The Department noted that, while Williams
does not expressly state whether his Petition is in the nature of a mandamus, based on
the relief that Williams is requesting, the Department is responding as such.
(Preliminary Objections, at 4.) However, the Department avers that mandamus is not
appropriate to address Williams’ claims against the Department. Id. at 6. Rather, the

       1
          In ruling on preliminary objections in the nature of a demurrer, this Court must accept as
true all well-pleaded material facts and all inferences reasonably deducible therefrom. Barndt v.
Pennsylvania Department of Corrections, 902 A.2d 589, 592 (Pa. Cmwlth. 2006). However, this
Court is not required to accept as true “conclusions of law, unwarranted inferences from the facts,
argumentative allegations, or expressions of opinion.” Silo v. Ridge, 728 A.2d 394, 398 (Pa.
Cmwlth. 1999) (citing Giffin v. Chronister, 616 A.2d 1070, 1072 (Pa. Cmwlth. 1992)).



                                                   3
Department argues that issues relating to medical challenges, confiscation of personal
items, and housing arrangements are best left to the discretion of Department
personnel with the professional expertise. Id. at 7. Accordingly, the Department
maintains that Williams’ Petition should be dismissed. Id. at 8.
             After the Department filed its preliminary objections, Williams filed a
brief in opposition. In his brief, Williams maintains that, by not ordering MRIs and
pain medication, the Department is acting deliberately indifferent to his medical
needs. (Petitioner’s Brief at 5.) He further contends that the Department violated his
due process rights by confiscating his personal items. Id. at 6. Finally, Williams
avers that he has a “right to be in a smoke-free environment.” Id. at 8.


                                      Discussion
             First, we must determine the nature of Williams’ action. While Williams
does not state whether this is a mandamus action, the Department is correct that it
must be treated as such based on the relief requested. See Kretchmar v. Department
of Corrections, 831 A.2d 793, 797 (Pa. Cmwlth. 2003) (where inmate sought to
compel the Department to provide him with specific medication, his action was in the
nature of mandamus).      Williams asks this Court to compel the Department, a
governmental agency, to take specific action by ordering MRIs, providing him with
pain medication, returning certain personal items, and altering his housing situation.
Accordingly, it is clear from Williams’ Petition that he is seeking a writ of
mandamus; therefore, we will treat this action as such.
             Initially, we note that “[m]andamus is an extraordinary writ that compels
performance of a ministerial act or mandatory duty where there exists: (1) a clear
legal right in the petitioner; (2) a corresponding duty in the respondent; and (3) an



                                           4
absence of any other adequate and appropriate remedy.” Buehl v. Beard, 54 A.3d
412, 416 (Pa. Cmwlth. 2012). Mandamus is only used to protect rights that are
already established and cannot be used as the basis to establish rights. Id. Further, a
court cannot “direct the manner in which an official performs a discretionary
function.” Id. As the Supreme Court explained:

             The writ cannot be used to control the exercise of discretion
             or judgment by a public official or administrative or judicial
             tribunal; to review or compel the undoing of an action taken
             by such an official or tribunal in good faith and in the
             exercise of legitimate jurisdiction, even though the decision
             was wrong; to influence or coerce a particular determination
             of the issue involved; or to perform the function of an
             appeal or writ of error.
Pennsylvania Dental Association v. Insurance Department, 516 A.2d 647, 652 (Pa.
1986) (emphasis added).


                                  Medical Treatment
             Williams maintains that the Department has violated his right to medical
treatment under the Eighth Amendment by being deliberately indifferent to his
proscribed medical needs. The Department avers that Williams’ challenge to the
adequacy of the medical treatment does not rise to the level of deliberate indifference.
(Preliminary Objections at 11.)
             The Eighth Amendment, in relevant part, prohibits the infliction of
“cruel and unusual punishment.”       U.S. CONST. amend. VIII. The United States
Supreme Court has interpreted this Amendment to mean that inmates are required to
receive adequate medical care. See Estelle v. Gamble, 429 U.S. 97, 103-05 (1976)
(citing U.S. CONST. amend. VIII). Specifically, the United States Supreme Court has
held that “deliberate indifference to serious medical needs of prisoners constitutes the


                                           5
‘unnecessary and wanton infliction of pain,’ proscribed by the Eighth Amendment.”
Id. at 104 (internal citations omitted).
             In Estelle v. Gamble, an inmate instituted a civil action against prison
officials, including the chief medical officer, alleging that the prison officials violated
the cruel and unusual punishment clause of the Eighth Amendment by not providing
proper medical treatment after the inmate injured his back while fulfilling a prison
work assignment. 429 U.S. at 98. Within a three-month period, the inmate was
treated by the medical staff on seventeen occasions. Id. at 107. The medical staff
diagnosed the inmate’s injury as a lower back strain and ordered bed rest, muscle
relaxants, and pain relievers. Id. However, the inmate maintained that more should
have been done, including the taking of x-rays. Id. The United States Supreme Court
determined that the medical professionals’ decision to not order “an x-ray, or like
measures, does not represent cruel and unusual punishment.” Id.
             The deliberate indifference standard of the Eighth Amendment contains
an objective element and a subjective element. See Kretchmar, 831 A.2d at 798. The
objective element is met when the deprivation suffered by the inmate is “objectively,
‘sufficiently serious. . . .’” Id. (quoting Framer v. Brennan, 511 U.S. 825, 834
(1994)). As the United States Supreme Court held, to be sufficiently serious, “a
prison official’s act or omission must result in the denial of the minimal civilized
measure of life’s necessities.” Framer, 511 U.S. at 834 (internal quotation marks
omitted). The subjective element of a deliberate indifference claim requires prison
personnel to have acted with a “sufficiently culpable state of mind.” Id. (internal
quotation marks omitted). A prison official cannot be found liable for deliberate
indifference unless “the official knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from which the inference



                                            6
could be drawn that a substantial risk of serious harm exists, and he must also draw
the inference.” Id. at 837.
             However, courts will not find deliberate indifference when an inmate
receives medical attention, but simply disagrees with the medical professionals’
course of treatment. See Baez v. Department of Corrections (Pa. Cmwlth., No. 311
M.D. 2013, slip op. at 4, filed March 18, 2014). In Baez, an inmate diagnosed with
systemic lupus erythematosus filed a petition asking this Court to compel the
Department of Corrections to send him to a gastroenterologist and a chronic pain
specialist. Id., slip op. at 1. The inmate alleged that the Department’s refusal to send
him to these specialists amounted to deliberate indifference. Id. This Court opined
that the deliberate indifference test gives great deference to prison medical authorities
and their professional course of treatment for the inmates. Id., slip op. at 3. While the
inmate did receive extensive medical treatment, the inmate was “attempting to
mandate a particular course of treatment.” Id., slip op. at 4. Accordingly, this Court
held that the inmate’s challenge to the adequacy of the medical treatment that he
received within the prison did not rise to the level of deliberate indifference. Id.
             Here, Williams does not allege that he was not seen by medical staff.
Instead, he maintains that the physicians who examined him did not prescribe an
appropriate course of treatment. Williams was seen by physicians within SCI-Forest
on multiple occasions for his knees and shoulders. During his first visit to the
medical unit, the physician ordered an x-ray on Williams’ knees. After the physician
examined the x-ray, he found that there were no abnormalities; however, Williams
disagreed with the physician’s medical findings. Later, when Williams went to the
medical unit again, the staff determined that no further x-rays were needed, and that




                                            7
Williams most likely had arthritis, a determination with which Williams was
dissatisfied.
                Williams has been treated for the pain in his shoulders and knees;
however, he is attempting to dictate his own course of treatment.            Courts will
repudiate any attempts to undermine or question the adequacy of treatment conducted
by medical professionals which “remains a question of sound professional judgment.”
Kretchmar, 831 A.2d at 799 (internal quotation marks omitted) (opining that an
inmate’s denial for specific allergy medication was best left in the sound professional
judgment of medical professionals).          Williams’ course of treatment involved
examinations by physicians in SCI-Forest and diagnostic tests, including x-rays.
Williams’ complaint goes to the adequacy of the treatment he received, which
remains a question of sound professional judgment.
                As a matter of law, Williams cannot show that he has a clear right to the
relief he requests. Accordingly, the fact that the Department did not follow the
course of treatment that Williams advances as appropriate does not rise to the level of
an issuance of a writ of mandamus.


                              Right to Smoke-Free Environment
                Next, Williams asks this Court to compel the Department to move him to
a single cell because his current cellmate smokes between 35 and 40 cigarettes a day.
Williams maintains that he has a right to be in a smoke-free environment, and that he
will only have a smoke-free environment if he does not have a cellmate. (Petition,
¶10.)
                The Department avers that the Eighth Amendment neither requires that
inmates live in a single cell nor provides an inmate with the right to choose his cell



                                             8
accommodations. (Preliminary Objections, at 14.) The Department states that courts
should be hesitant to interfere with “the orderly administration of the state prison
system and should give broad deference to prison officials in running prisons.” (Brief
for Respondents, at 13) (citing to Sandin v. Conner, 515 U.S. 472, 482 (1995); Bell v.
Wolfish, 441 U.S. 520, 547 (1979)).      Further, the Department notes that prison
personnel have broad discretion in deciding the housing arrangements for inmates.
Ultimately, the Department maintains that SCI-Forest personnel determined that
Williams needs a cellmate, and this Court “should not substitute [its] judgment for
that of the [Department’s].” (Preliminary Objections, at 14.)
            Williams maintains that he has a right to be in a smoke-free
environment. However, Williams does not cite, and our research has not discovered,
any case law expressing an explicit right to be in a smoke-free environment.
Notwithstanding, a cause of action does exist under the Eighth Amendment when an
inmate alleges that “prison officials have exposed him with deliberate indifference to
levels of [environmental tobacco smoke] that pose an unreasonable risk of harm to
his future health.” Johnson v. Lightcap, (Pa. Cmwlth., No. 467 C.D. 2008, filed July
11, 2008) (citing Helling v. McKinney, 509 U.S. 25, 34-35 (1993)).
            In order to state a claim under the Eighth Amendment for deliberate
indifference to environmental tobacco smoke (ETS) exposure, an inmate must satisfy
the two-part test set forth in Helling. First, the inmate must prove that he was
exposed to “unreasonably high levels of ETS.”         Helling, 509 U.S. at 35.     In
determining whether the levels of ETS are unreasonably high, the court must inquire
“into the seriousness of the potential harm and the likelihood that such an injury to
health will actually be caused by exposure to ETS.” Id. at 36. Additionally, a court
will also consider whether society would consider the risk of harm due to ETS smoke



                                          9
so grave “that it violates contemporary standards of decency to expose anyone
unwillingly to such a risk.” Id.
               In his Petition, Williams failed to aver any facts regarding his level of
exposure to the ETS, any current or long-term health problems related to this
exposure, or how this exposure violates contemporary standards of decency. While
this Court understands the generalized health risks of second-hand smoke, Williams
has not presented sufficient information to allow this Court to determine whether the
Department is violating the Eighth Amendment by failing to provide Williams with a
single cell.
               This Court finds that there is no clear right to issue a writ of mandamus
here due to the lack of information provided by Williams, in conjunction with the
Department’s broad discretion in housing arrangements.2


                                        Due Process
               Williams alleges that the Department personnel confiscated photographs,
a Panasonic Walkman, Sony earbuds, a headphone extension wire, Ray Ban
sunglasses, and food items from his cell. (Petition, ¶6.) After Williams’ items were
confiscated, he filed grievances within SCI-Forest to have his items returned. The
Security Office provided Williams with a list of confiscated items but determined that
Williams could not repossess these items while he was incarcerated due to
Department policy. Williams maintains that the Department deprived him of his
personal property. Further, Williams avers that there is “no post deprivation remedy”


       2
         Williams also alleges that the Department tampered with his mail as well as confiscated
legal paperwork; however, he does not elaborate on either one of these accusations. Accordingly,
this Court cannot properly evaluate the cause of action or the remedy due, if any.



                                              10
in the prison “because every grievance is in favor of [the Department]. . . .”
(Petitioner’s Brief at 6.)
             The Department avers that Williams does not have an absolute right to
all of the confiscated items because prisons can limit the type and quantity of items
an inmate can possess. (Preliminary Objections at 12.)
             The Fourteenth Amendment provides that “[n]o State shall . . . deprive
any person of life, liberty, or property, without due process of law.” U.S. CONST.
amend. XIV, § 1. Nevertheless, courts have repeatedly held that the internal prison
grievance system is an adequate post-deprivation remedy under the due process
clause. See Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 422 (3d
Cir. 2000). An inmate’s dismay at the outcome of the grievance process does not
render the process inadequate. Further, “[r]easonable prison regulations regarding the
quantity and type of property that inmates may possess do not violate due process
guarantees.” Small v. Horn, 722 A.2d 664, 671 (Pa. 1998). See Bell, 441 U.S. at
554 (noting that prisoners' due process rights with respect to possession of property
are not absolute, but are “subject to reasonable limitation or retraction in light of the
legitimate security concerns of the institution”).
             After Williams was denied access to the items that were taken from his
cell, Williams utilized the prison grievance system to contest the confiscation. The
Department’s internal grievance system is an adequate post-deprivation remedy.
Accordingly, Williams has not stated a clear right to possess the confiscated items;
therefore, an issuance of a writ of mandamus is not proper.




                                           11
                                    Conclusion
            For the foregoing reasons, we sustain the Department’s preliminary
objections and dismiss Williams’ Petition.




                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge




                                         12
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kevin Williams,                          :
                   Petitioner            :
                                         :    No. 31 M.D. 2017
            v.                           :
                                         :
Pa. Dept. of Corr’s, et al., at          :
SCI-Forest, Medical Depart.,             :
and Security Office,                     :
                    Respondents          :


                                     ORDER


            AND NOW, this 5th day of September, 2017, the preliminary
objections filed by the Department of Corrections are hereby sustained and the
petition for review filed by Kevin Williams, a/k/a Kirby Stewart, is dismissed.




                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
