             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Steven Curtician,                              :
                             Petitioner        :
                                               :
                      v.                       :    No. 785 M.D. 2018
                                               :    Submitted: September 6, 2019
DOC Secretary Wetzel, et al.,                  :
                       Respondents             :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                               FILED: January 15, 2020


       Presently before the Court are preliminary objections (POs) in the nature of a
demurrer of the Department of Corrections (DOC) Secretary Wetzel, et al.,
(Respondents),1 to Steve Curtician’s (Petitioner) Petition for a Writ of Mandamus
(Petition) filed in our original jurisdiction. After review, we sustain Respondents’
POs and dismiss the Petition.
       Initially, when ruling on POs, this Court must “accept as true all well-pleaded
material allegations” in the Petition and any reasonable inferences that can be drawn
therefrom. Armstrong Cty. Mem’l Hosp. v. Dep’t of Pub. Welfare, 67 A.3d 160, 170
(Pa. Cmwlth. 2013). Because sustaining a demurrer results in dismissal of a petition,

       1
         Petitioner asserts in the body of his Petition that DOC respondents include, along with
Secretary Wetzel, a unit manager at the State Correctional Institution at Houtzdale and chief
grievance officer Dorina Varner.
POs in the nature of a demurrer “should be sustained only in cases that clearly and
without a doubt fail to state a claim upon which relief may be granted.” Bell v.
Township of Spring Brook, 30 A.3d 554, 557 n.7 (Pa. Cmwlth. 2011). Any doubt as
to whether the POs should be sustained must be resolved in favor of overruling them.
Pa. State Lodge, Fraternal Order of Police v. Dep’t of Conservation & Nat. Res.,
909 A.2d 413, 416 (Pa. Cmwlth. 2006).


 I.   Petition
      With the above principles in mind, we turn to the averments in the Petition,
which are as follows. Petitioner is presently incarcerated at the State Correctional
Institution at Houtzdale (SCI-Houtzdale) and was housed in the E-B housing unit
during the statewide prison lockdown from August 29, 2018 to September 10, 2018.
He claims that prison employees engaged in unsanitary methods of food delivery
during the approximately two-week period of the prison lockdown. Specifically,
Petitioner asserts that food was delivered in “dirty laundry carts,” and staff would
“handl[e] keys, door handles, [and] railings,” then “reach[] into a bread bag” and
give inmates food “with the same contaminated [g]loves.” (Petition ¶ 14.) Petitioner
complained to certain corrections officers, none of whom are the named
Respondents, of the unsanitary practices that he alleges he witnessed during the
statewide lockdown.     These corrections officers “agreed with [Petitioner] but
continued to allow unsanitary practices to continue.” (Id. ¶ 20.)
      Petitioner asserts security camera footage will confirm his allegations, but
grievance staff did not acknowledge Petitioner’s request to view such footage or
preserve the footage for future review. Petitioner filed grievances with the unit
manager of his housing unit, and the grievances were deemed frivolous and denied



                                         2
throughout the process. In his grievances, Petitioner provided affidavits of fellow
inmates who attested to the unsanitary practices alleged by Petitioner and, therefore,
Petitioner provided sufficient evidence to support his claims in the grievances.
       Petitioner further avers that DOC Policy DC-ADM 6102 and DOC regulation,
37 Pa. Code § 95.230,3 require that food be prepared and served in a sanitary manner
and set forth hygiene guidelines for food service employees, requiring them to wear
appropriate hair coverings and gloves. Although staff members wore gloves, they
did not change gloves once the gloves were “contaminated.” (Petition ¶ 19.) The
actions of DOC staff members while serving food during the prison lockdown
violated this policy and regulation, as well as violated Petitioner’s constitutional
rights under article I, section 13 of the Pennsylvania Constitution.4
       Petitioner seeks the following relief:

       25). Petitioner[] respectfully moves this Honorable Court to grant [his]
       mandamus to compel the [R]espondents to act on the preponderance of
       evidence provided throughout the grievance and appeal process and to
       compel official[’]s performance of a []ministerial act or mandatory duty
       as opposed to a discretionary act and arbitrary stonewalling tactics.

       26). Petitioner[] respectfully moves this Court to issue an order
       directing [DOC] officials to adhere to established policies [P]etitioner[]
       [is] entitled to as required by law.

       27). Petitioner[] respectfully moves this Court for an order compelling
       [R]espondents to review [P]etitioner’s, and all grievances and appeals
       strictly in accordance with the directives set forth within Pa. [DOC]
       [P]olicy DC-ADM 610, 37 Pa. Code § 95.230 and [Pa.] Const. [a]rt. I[,]
       § 13.

       2
          DC-ADM 610 governs the operations of food services within DOC facilities and includes,
among other things, guidelines for food preparation and storage, and personal hygiene and
sanitation.
        3
          This DOC regulation governs the minimum requirements for food services in county jails.
        4
          PA. CONST. art. I, § 13. Article I, section 13 provides “[e]xcessive bail shall not be
required, nor excessive fines imposed, nor cruel punishments inflicted.” Id.


                                               3
       ...

       29). Pursuant to 42 Pa.C.S.[] § 8303, Petitioner[] seek[s] the
       appropriate damages/compensation for the costs incurred in redressing
       [R]espondent’s [sic] failure to p[er]form “mandatory” duties in
       accordance with law . . . . The amount of damages over the costs
       incurred for filing for redress should be determined by this [C]ourt in
       regards to evidence presented.


(Petition ¶¶ 25-29 (citations omitted).) Petitioner also requests leave to amend his
Petition, if necessary.
       Respondents filed the immediate POs in response to the Petition, asserting
that Petitioner failed to state a claim for which relief can be granted because he has
not alleged that Secretary Wetzel or the other Respondents actually delivered food
to him and, even if the Petition is viewed as a claim brought under Section 1983, 42
U.S.C § 1983, Petitioner has failed to state a claim because he seeks to hold
Respondents vicariously liable and has not averred facts of Respondents’ personal
involvement. Respondents also filed on the same day as their POs an Application
to Stay Discovery Pending Disposition of the POs (Application), which this Court
granted by order dated March 28, 2019.
       Petitioner responded, admitting that Respondents never personally delivered
food to him but were put on notice by his grievances and assumed liability when
they did not act to address Petitioner’s concerns. (Answer to POs ¶ 10.) Petitioner
asserts that Respondents have a mandatory duty to follow DOC guidelines and
regulations for food preparation and handling and the violations of these policies
also raise constitutional concerns under the Eighth Amendment.5


       5
         The Eighth Amendment provides “[e]xcessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST. amend. VIII.


                                             4
II.   Arguments
      Respondents assert that Petitioner has failed to state a claim for mandamus
relief, arguing as follows. Petitioner has not alleged that Respondents delivered food
to him but instead relies upon vicarious liability. However, public officials cannot
be vicariously liable for a subordinate employee’s negligent acts. Further, DC-
ADM 610 does not create an enforceable right for Petitioner or other inmates, and
the DOC regulation upon which Petitioner relies, 37 Pa. Code § 95.230, applies only
to county jails. If this Court construes Petitioner’s claims as a civil rights case under
Section 1983, Respondents assert that Petitioner has failed to state a claim because
he has not alleged facts regarding personal involvement of Respondents. Individual
employees cannot be held vicariously liable under Section 1983, but rather must
“‘have played an active role’ in the alleged violation.” (DOC’s Brief (Br.) at 9
(quoting Sutton v. Rasheed, 323 F.3d 236, 250 (3d Cir. 2003)).) Petitioner has not
alleged these facts and “does not seek any remedy,” or “allege any actual harm,” but
seeks an impermissible “advisory opinion.” (Id. at 10.) Respondents ask us to
sustain the POs and dismiss the Petition.
      Petitioner responds that he has stated a claim for relief, arguing as follows.
Mandamus is the only available remedy Petitioner has to protect his rights under
article I, section 13 of the Pennsylvania Constitution. Petitioner has a right to be
“free from the risks of contracting infections that may cause serious bodily harm [or]
loss of life,” and prison supervisors cannot ignore such unsanitary conditions when
they are alerted to it, but must take corrective action. (Petitioner’s Br. at 7.) Even




                                            5
if prison supervisors were not personally involved in distributing food during the
lockdown, they are still liable.6 Petitioner asks this Court to overrule the POs.7


III.   Discussion
       Reading Petitioner’s averments liberally as asserting a violation of his
constitutionally protected rights under article I, section 13 of the Pennsylvania
Constitution8 brought pursuant to Section 1983, Respondents argue that Petitioner
has failed to state a claim.             Respondents contend Petitioner seeks to hold

       6
          Petitioner also contends that in granting Respondents’ Application and staying discovery,
this Court provided Respondents with an unfair advantage and precluded Petitioner from obtaining
relevant discoverable materials to prove his claims. Petitioner argues he did not receive his copy
of the Application until after this Court had ruled upon it and, therefore, could not object. We
emphasize that the Court’s order merely stayed discovery during consideration of the present POs.
It did not foreclose Petitioner’s opportunity to pursue discovery if the POs were ultimately
overruled. Moreover, even if Petitioner did not receive the Application until after this Court ruled
upon it, as he asserts, Petitioner filed a subsequent Motion to Lift the Stay of Discovery in which
he voiced his objections, although this motion was ultimately denied by order of this Court dated
July 2, 2019. Therefore, Petitioner was not prejudiced by the order granting the Application.
Further, the Court considers only the facts as alleged in the Petition when ruling on preliminary
objections. Armstrong Cty. Mem’l Hosp., 67 A.3d at 170. Because the facts as alleged in the
Petition do not state a claim and we will sustain the instant POs, this case will not proceed to
discovery and no further discussion of this point is necessary.
        7
          Petitioner devotes a significant portion of his brief to recounting various alleged problems
involving his mail to this Court. To the extent Petitioner contends that this Court has not ruled
upon his motions, our review of the docket shows no outstanding motions by either party.
Therefore, the only pleadings before the Court presently for consideration are the present POs.
        Petitioner further asserts arguments regarding the mail that he sent in a separate case in our
original jurisdiction, Curtician v. Wetzel (Pa. Cmwlth., No. 67 M.D. 2019, filed April 17, 2019).
By memorandum and Order of this Court filed April 17, 2019, the Court sustained the respondent’s
preliminary objections and dismissed that case. Accordingly, to the extent that Petitioner’s
arguments address the procedure and facts of that dismissed case, we do not consider them.
        8
          Although Petitioner asserts in his Petition that Respondents’ actions were in violation of
his rights under article I, section 13, we note that the relief he requests does not include declaratory
or injunctive relief to address such violations. His relief focuses only upon directing Respondents’
actions with regard to his grievances.



                                                   6
Respondents vicariously liable for the actions of the employees who actually
delivered the food and, because Petitioner has not averred facts demonstrating
Respondents’ individual involvement, he has not stated a claim. Respondents are
correct.
       Article I, section 13, like the Eighth Amendment to the United States
Constitution, prohibits the infliction of cruel punishments.9 Section 1983 provides
that persons acting under color of state law that deprive a citizen of “any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding for redress
. . . .” 42 U.S.C. § 1983. To state a claim for relief under Section 1983, a petitioner
“must allege the violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was committed by a person
acting under color of state law.” West v. Akins, 487 U.S. 42, 48 (1988). Under
Section 1983 claims, “[g]overnment officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat
superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (emphasis omitted). A
Section 1983 claim will not succeed where a petitioner seeks to hold the government
official liable under a “theory of ‘supervisory liability’”, for “knowledge and
acquiescence in their subordinates’” actions. Id. at 677. A government official’s




       9
         Petitioner avers in his Petition only a violation of rights under article I, section 13, of the
Pennsylvania Constitution but argues in his answer to the POs violations of his Eighth Amendment
rights under the United States Constitution. Regardless, “the guarantee against cruel and unusual
punishment in [a]rticle I, [s]ection 13 of the Pennsylvania Constitution provides no greater
protection than that afforded by the United States Constitution.” Tindell v. Dep’t of Corr., 87 A.3d
1029, 1036 n.8 (Pa. Cmwlth. 2014).



                                                   7
mere participation in reviewing a grievance after the fact is insufficient to establish
personal involvement. Brooks v. Beard, 167 Fed. App’x 923, 925 (3d. Cir. 2006).10
       This Court has explained that where a pleading does not allege personal
knowledge or involvement of the respondents beyond grievance review, the petition
does not state a claim upon which relief can be granted. Rawlings v. Wetzel (Pa.
Cmwlth., No. 562 M.D. 2016, filed Oct. 20, 2017), slip op. at 8-9.11 The petitioner
in Rawlings sought relief under Section 1983 for alleged constitutional violations
related to his placement in the restricted housing unit and disciplinary actions that
he contended disregarded his mental illness.              The petitioner averred that the
respondents knew and were deliberately indifferent to the effects of the restricted
housing unit on the petitioner’s well-being and mental health. This Court agreed
with the respondents that such allegations were insufficient to state a claim for relief
because they did not allege personal involvement. Id. at 9. Specifically, we noted
that the petitioner did “not allege knowledge or personal involvement of either
[r]espondent in the alleged violations,” and any “[a]llegations that [the r]espondents
became aware of alleged violations from their subsequent review of grievances or
request slips for treatment do not suffice.” Id. at 10.
       Respondents also argue that Petitioner has not “allege[d] any actual harm.”
(Respondents’ Br. at 10.) As this Court explained in Tindell v. Department of
Corrections, 87 A.3d 1029 (Pa. Cmwlth. 2014), a claim for relief under Section 1983
was not stated where the petitioners provided only general allegations of the harm.
In Tindell, the petitioners asserted a violation of the prohibition on cruel punishment

       10
            Although not binding on this Court, “decisions of the Court of Appeals for the Third
Circuit . . . have persuasive value.” Kutnyak v. Dep’t of Corr., 923 A.2d 1248, 1250 (Pa. Cmwlth.
2007).
        11
            Rawlings, an unreported opinion, is cited for its persuasive value in accordance with
Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).


                                               8
under the United States and Pennsylvania constitutions based on the alleged
unsanitary conditions and denial of medical care in the restricted housing unit. We
noted that the petitioners needed to “allege both that the inmate has been exposed to
an unreasonable risk of serious damage to future health,” and, “it would violate
contemporary standards of decency to expose anyone unwillingly to such a risk.”
Tindell, 87 A.3d at 1039.      Although the petitioners had stated generally the
deleterious effects of life in the restricted housing unit, we determined they did “not
identify symptoms or effects of a deteriorating mental state that they have
experienced . . . .” Id. at 1040. The petitioners averred that isolation had shown
risks of mental illness but “fail[ed] to allege acts taken or omitted by the named
[r]espondents that [] caused the constitutional deprivation they seek to remedy.” Id.
Accordingly, the Court determined the petitioners had not stated a claim for relief.
Id. at 1041.
      Like the petitioners in Rawlings and Tindell, Petitioner has not averred that
Respondents, acting under color of state law, deprived him of his constitutional
rights under article I, section 13 with regard to the alleged improper handling of
food. Specifically, Petitioner has not alleged facts of personal involvement or harm
and impermissibly seeks to impose liability against Respondents under a theory of
respondeat superior. Petitioner admits in his answer to the POs that Respondents
were not personally involved in the alleged unsanitary food handling. (Answer to
POs ¶ 10.) Instead, Petitioner seeks to impose liability upon Respondents for not
acting to correct the alleged unsanitary conditions. This is a form of supervisory
liability, which is not permitted under Section 1983. Petitioner seeks relief against
Respondents because they became aware of the alleged unsanitary practices during
his grievance review but did not take corrective actions. However, an allegation that



                                          9
Respondents became aware of these alleged unsanitary practices after the fact during
a grievance review is an insufficient allegation of personal knowledge or
involvement. Brooks, 167 Fed. App’x at 925. Further, while Petitioner asserts that
he complained to corrections officers of the alleged unsanitary practices, (Petition ¶
20), he does not name those corrections officers as Respondents.
      Petitioner asserts generally that prison staff used unsanitary methods of food
delivery during the prison lockdown, averring that they delivered food out of dirty
laundry carts and touched the food that they served after touching unsanitary
surfaces, such as keys and door handles. However, Petitioner has not alleged that
he suffered any harm, symptoms, or medical effects from this alleged unsanitary
food handling. Tindell, 87 A.3d at 1040. Therefore, Petitioner “fail[s] to allege acts
taken or omitted by the named Respondents that [] caused the constitutional
deprivation [he] seeks to remedy.” Id. Accordingly, construing the Petition as a
claim under Section 1983, Petitioner has failed to state a claim for relief.
      Although Petitioner has not stated a claim for relief under Section 1983, which
forms the basis for Respondents’ POs, we also note that Petitioner has not stated a
claim for the mandamus relief he seeks in the Petition. A writ of mandamus “is an
extraordinary writ designed to compel performance of a ministerial act or mandatory
duty.” O’Toole v. Pa. Dep’t of Corr., 196 A.3d 260, 270 (Pa. Cmwlth. 2018)
(citation omitted). Mandamus can be granted only “where there exists a clear legal
right in the petitioner, a corresponding duty in the respondent, and a want of any
other adequate and appropriate remedy.” Id. (emphasis and citation omitted).
“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).




                                          10
       Relying upon DOC policies and regulations, Petitioner seeks mandamus relief
for the alleged violations of those policies during the statewide lockdown. However,
as this Court explained in Tindell, “administrative rules and regulations ‘do not
create rights in prison inmates.’” 87 A.3d at 1035 (quoting Commonwealth ex rel.
Buehl v. Price, 705 A.2d 933, 936 (Pa. Cmwlth. 1997)). We noted “[a]llegations
that corrections officers have failed to follow rules and regulations promulgated or
adopted by prison officials . . . cannot state a claim for mandamus.” Id. Therefore,
where petitioners “ask[] this Court to establish what their rights are and to fashion
relief accordingly,” such relief is not properly granted under mandamus. Id. at 1043.
       Accordingly, to the extent that Petitioner seeks mandamus relief premised
upon the alleged violations of DOC policies and regulations governing food
handling procedures on the basis that those policies create rights, Petitioner has not
stated a claim.12 Further, relief directing Respondents to exercise their discretion
with regard to Petitioner’s grievances (Petition ¶¶ 25, 27), does not involve a
mandatory act and is precluded from mandamus. See Tindell, 87 A.3d at 1035.


IV.    Conclusion
       When we construe the Petition as a claim for relief under Section 1983 for a
violation of article I, section 13 of the Pennsylvania Constitution, Petitioner has not
alleged facts asserting harm or personal involvement by Respondents. Moreover,
Petitioner has not stated a claim for the mandamus relief he seeks, as he “ask[s] this
Court to establish what [his] rights are and to fashion relief accordingly,” Tindell, 87


       12
           As Respondents note, the regulatory section upon which Petitioner relies, 37 Pa. Code
§ 95.230, governs the minimum requirements for food services in county correctional facilities.
Because Petitioner is incarcerated at a state correctional institution, this regulation is inapplicable
to Petitioner’s claims for relief.


                                                 11
A.3d at 1043, rather than to enforce a clear legal right to which Respondents have a
corresponding duty. Accordingly, because Petitioner has failed to state a claim, we
sustain Respondents’ POs and dismiss the Petition.




                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge




                                        12
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Steven Curtician,                        :
                         Petitioner      :
                                         :
                    v.                   :   No. 785 M.D. 2018
                                         :
DOC Secretary Wetzel, et al.,            :
                       Respondents       :



                                      ORDER


      NOW, January 15, 2020, the Respondents’ Preliminary Objections to
Petitioner’s Petition for a Writ of Mandamus (Petition) are SUSTAINED. The
Petition is DISMISSED.



                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge
