           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tyree Lawson,                         :
                   Petitioner         :
                                      :
             v.                       : No. 644 M.D. 2016
                                      : SUBMITTED: February 10, 2017
Pennsylvania Department of            :
Corrections John Wetzel; SCI-Forest's :
Superintendent Michael Overmyer; :
SCI-Forest's Grievance Coordinator :
Lisa Reeher,                          :
                   Respondents        :


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE JULIA K. HEARTHWAY, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE HEARTHWAY                                 FILED: May 16, 2017

               Tyree Lawson (Lawson), pro se, has filed a “Complaint for
Mandamus Action”1 in our original jurisdiction, naming as respondents John
Wetzel, Secretary of the Pennsylvania Department of Corrections (Department);
Michael Overmyer, Superintendent of the State Correctional Institution-Forest
(SCI-Forest); and Lisa Reeher, SCI-Forest’s Grievance Coordinator2 (collectively,
Respondents). Before this Court are Respondents’ preliminary objections in the

       1
          Although Lawson’s pleading is in the nature of a petition for review, see Pa. R.A.P.
1516(b), we will refer to Lawson’s pleading as a complaint, as the parties do, to avoid confusion.
        2
          Although Reeher is named in the caption as Grievance Coordinator, Respondents state
that her job title is Superintendent’s Assistant. (Preliminary Objections ¶ 2.)
nature of a demurrer, seeking dismissal of Lawson’s complaint pursuant to
Pennsylvania Rule of Civil Procedure No. 1028(a)(4). We sustain Respondents’
preliminary objections; however, because the preliminary objections were not
addressed to all of Lawson’s claims, we dismiss only that portion of Lawson’s
complaint concerning the mandamus claim to which the preliminary objections
were addressed.


              Lawson’s complaint alleges the following facts. On July 18, 2016,
Corrections Officer Wolfgang directed Lawson to sign SCI-Forest’s inmate legal
mail tracking sheet.3 (Complaint ¶ 12.) Lawson asked the officer to show him the
piece of mail, and when the officer did, Lawson noticed the letter was opened
outside of his presence. (Complaint ¶ 12.) Lawson declined to sign the tracking
sheet, and thus, rejected the letter. (Complaint ¶ 12.) The same day, Lawson filed
an official inmate grievance (Grievance No. 635138) alleging improper conduct
based on the mail being opened outside of his presence.                   (Complaint ¶ 13.)
Lawson later discovered that the mail was sent by the United States District Court
in connection with his case pending before that court, and contained the United
States District Court’s June 27, 2016 order granting him permission to file an
appeal nunc pro tunc within fourteen days of the issuance of the order. (Complaint
¶ 15.) Lawson then promptly filed an “After-the-Fact Grievance” (Grievance No.
638792) on August 8, 2016. (Complaint ¶ 15.) Lawson states that the “July 18,
2016 rejected legal mail represents a blatant act of Government Interferrence
[sic]… by intercepting, opening and withholding petitioner’s legal” mail until

       3
         Lawson alleges that an inmate’s signature on the tracking sheet represents that the mail
was received closed and opened in the inmate’s presence. (Complaint, ¶ 12, n.1.)


                                               2
seven days beyond the period granted to file the appeal. (Complaint ¶ 15, ellipsis
in original.)


                With respect to the first grievance (No. 635138), Lawson received an
initial denial response, which he appealed, and on September 6, 2016, SCI-Forest’s
facility manager denied the appeal. (Complaint ¶ 16.) On September 23, 2016,
Lawson filed a final appeal with the Department’s chief inmate grievance
coordinator. (Complaint ¶ 16.)


                With respect to the second grievance (No. 638792), Lawson alleges
Respondent Reeher arbitrarily rejected the grievance. (Complaint ¶ 17.) Lawson
appealed to the facility manager, who, on September 13, 2016, remanded the
matter to the grievance officer for further investigation and response. (Complaint ¶
17.) Lawson alleges that no response has been provided in violation of the remand
order and Department Policy DC-ADM 804. (Complaint ¶ 18.) Lawson seeks
mandamus to compel ministerial acts consistent with the Department’s policy,
quoting sections of DC-ADM 804 relating to inmate grievances. (Complaint pg.
4.)


                Lawson alleges that he “is likely to suffer future irreparable harm
through these unfair acts amounting to blatant Official Oppression… by refusing to
respond to petitioner’s [Lawson’s] filed actions that’s [sic] furtherly [sic]
demonstrating the unavailability of the Inmate Grievance Procedure …” and
continued irreparable harm from the denial of access to the courts. (Complaint pg.
5, first ellipsis in original.) Lawson alleges Department employees are acting in


                                           3
violation of the Department’s Code of Ethics. (Complaint pg. 5.) Lawson moves
this Court “to compel the Secretary John Wetzel to produce and furnish to
petitioner [Lawson] an Administrative order directing said SCI-Forest Officials to
tamper with, withhold and obstruct petitioner’s rightfully entitled outgoing and
incoming mail [(First Request)].        In addition to compelling the other named
responds [sic] to provide responses to petitioner’s filed actions [(Second
Request)]”; and to order reimbursement for the costs associated with this action,
not exceeding $50.00.4 (Complaint pg. 5.) Lawson “prays for the requested
mandamus relief by compelling said actors to produce said requested
Administrative Order {‘Authorizing’} and responses to petitioner’s filed actions.”
(Complaint pg. 5.) Although Lawson’s complaint is somewhat confusing, in sum,
excluding costs sought, Lawson is essentially seeking mandamus to compel two
separate acts.


              “Mandamus 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 adequate
and appropriate remedy.” Wilson v. Pennsylvania Board of Probation & Parole,
942 A.2d 270, 272 (Pa. Cmwlth. 2008). “The purpose of mandamus is to enforce
rights that have been clearly established.” Tindell v. Department of Corrections,
87 A.3d 1029, 1034 (Pa. Cmwlth. 2014). “Mandamus may not be used to establish
legal rights or to compel performance of discretionary acts.” Id. “While a court
may compel the exercise of discretion, mandamus may not lie to direct a judgment

       4
          In his brief, Lawson asks for permission to amend this amount to $90.00. (Lawson’s
brief at 7.) As this request is not properly before us, we will not address it.


                                             4
or the exercise of discretion in a particular way nor require the performance of a
particular discretionary act.”       Raleigh v. Pennsylvania Human Relations
Commission, 660 A.2d 177, 179 (Pa. Cmwlth. 1995).


             Here, Lawson’s First Request for mandamus relief asks this Court “to
compel the Secretary John Wetzel to produce and furnish to petitioner [Lawson] an
Administrative order directing said SCI-Forest Officials to tamper with, withhold
and obstruct petitioner’s rightfully entitled outgoing and incoming mail.” Initially,
we must state that we find Lawson’s request to be confusing and wonder if,
perhaps, there is a typographical error.5 Nonetheless, while we recognize that a
pro se litigant is not held to the stringent standards expected of pleadings drafted
by lawyers, Madden v. Jeffes, 482 A.2d 1162 (Pa. Cmwlth. 1984), this leniency
does not allow us to speculate as to the relief a litigant might be seeking, nor does
it permit us to insert words or otherwise redraft a litigant’s pleading.


             Respondents state that although Lawson’s complaint is “unclear,” he
“seems to be attempting to assert a violation of the First Amendment regarding the
opening of his mail” and that he “could perhaps also be arguing a denial of access
to the courts in relation to said mail which he asserts contained an order from a
federal habeas corpus case ….” (Respondents’ brief at 10.) Respondents have
characterized Lawson’s requested relief as seeking “an order from the secretary
affirming that his legal mail was tampered with in an attempt to obstruct incoming
and outgoing mail.”       (Respondents’ brief at 12.)         Respondents have filed

      5
         We note, however, that Lawson makes this identical, or nearly identical, request
elsewhere in his pleadings. (See Lawson’s brief at cover pg. & pg. 3.)


                                           5
preliminary objections in the nature of a demurrer, alleging legal insufficiency for
several reasons.6 Although Lawson responds that the Respondents inappropriately
attempt to convert his action into a civil rights action regarding interference with
access to courts, he does not otherwise dispute the Respondents’ characterization
of his claim.


                Lawson has no clear legal right to compel performance of the relief he
seeks, “to compel the Secretary John Wetzel to produce and furnish to petitioner
[Lawson] an Administrative order directing said SCI-Forest Officials to tamper
with, withhold and obstruct petitioner’s rightfully entitled outgoing and incoming
mail.” While Lawson makes general allegations of violations, he fails to identify
or allege any clear legal right to the relief he seeks.7 Moreover, to the extent
Respondents have accurately characterized the relief Lawson seeks as “an order
from the secretary affirming that his legal mail was tampered with in an attempt to
obstruct incoming and outgoing mail,” mandamus is not available. Such an order
would require the exercise of discretion in a particular way, and mandamus may

       6
           “Preliminary objections in the nature of a demurrer are deemed to admit all well-
pleaded material facts and any inferences reasonably deduced therefrom, but not the complaint's
legal conclusions and averments.” Lennitt v. Department of Corrections, 964 A.2d 37, 40 (Pa.
Cmwlth. 2008). “A demurrer should be sustained only in cases that are clear and free from
doubt and only where it appears with certainty that the law permits no recovery under the
allegations pleaded.” Id.
        7
          In his brief, Lawson refers to the Department’s policy DC ADM 803 stating it mandates
a specific time period in which an inmate shall receive his mail after it is received and processed
in the institution. These allegations are not contained in the complaint, and it is the complaint we
review for its legal sufficiency. Moreover, even if this allegation was in the complaint, it alone
would not be sufficient to state a claim for mandamus relief. A Department policy, by itself,
does not establish a clear legal right. See Tindell (stating that administrative regulations or
policies do not create rights in inmates); see also Bullock v. Horn, 720 A.2d 1079, 1082 (Pa.
Cmwlth. 1998) (same).


                                                 6
not lie to direct a judgment or the exercise of discretion in a particular way. See
Raleigh.


              We recognize that “Pennsylvania state prisoners have a First
Amendment right not to have properly marked legal mail opened outside of their
presence.”    Jones v. Doe, 126 A.3d 406, 408 (Pa. Cmwlth. 2015) (emphasis
added). However, mail purporting to be legal mail is not automatically privileged;
to be considered privileged, the Department requires the use of a control number
issued by it.     Id. at 407, n.2 (citing Brown v. Pennsylvania Department of
Corrections, 932 A.2d 316 (Pa. Cmwlth. 2007)).                This Court has upheld the
Department’s policies surrounding legal mail. See Brown. Here, Lawson has
failed to allege that the mail contained any control number, thereby entitling him to
any protections not to have the mail opened outside of his presence. Accordingly,
Lawson’s First Request is legally insufficient for this reason as well.8


              We now turn to Lawson’s Second Request, which seeks to compel
Respondents to provide responses to his filed actions (grievances). Respondents
have failed to raise any preliminary objections challenging this mandamus claim,
and Respondents do not even mention this claim when summarizing the relief
Lawson seeks. (See Respondents’ preliminary objections, pg. 2.) As there are no


       8
         Given our disposition, we need not address any of Respondents’ other reasons that
Lawson’s First Request is legally insufficient. We note, however, that Respondents have alleged
that they should be dismissed because constitutional violations against prison inmates require
personal involvement on the part of each Respondent, and Lawson has not alleged the requisite
personal involvement. However, Lawson is not asserting a claim for a constitutional violation.
(See Lawson’s Brief, cover pg.)


                                              7
preliminary objections to this claim before us, we must, at this stage, allow
Lawson’s claim to proceed.


            Accordingly, for the foregoing reasons, we sustain Respondents’
preliminary objections with respect to Lawson’s First Request, and therefore
dismiss that portion of the complaint. Because no preliminary objections were
filed to Lawson’s Second Request, which asks this Court “to compel[] the other
named responds [sic] to provide responses to petitioner’s filed actions” that claim,
as well as Lawson’s claim for costs, remain, and the Respondents shall file an
answer to Lawson’s complaint within thirty (30) days of the date of this Court’s
order.

                                      __________________________________
                                      JULIA K. HEARTHWAY, Judge




                                         8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tyree Lawson,                         :
                   Petitioner         :
                                      :
             v.                       : No. 644 M.D. 2016
                                      :
Pennsylvania Department of            :
Corrections John Wetzel; SCI-Forest's :
Superintendent Michael Overmyer; :
SCI-Forest's Grievance Coordinator :
Lisa Reeher,                          :
                   Respondents        :

                                    ORDER


             AND NOW, this 16th day of May, 2017, the preliminary objections
filed by the Respondents in the above-captioned matter are hereby sustained with
respect to Tyree Lawson’s (Lawson) mandamus claim which seeks “to compel the
Secretary John Wetzel to produce and furnish to petitioner [Lawson] an
Administrative order directing said SCI-Forest Officials to tamper with, withhold
and obstruct petitioner’s rightfully entitled outgoing and incoming mail,” and
therefore, we dismiss that portion of Lawson’s “Complaint for Mandamus Action,”
in the nature of a petition for review. Because Respondents did not file any
preliminary objections to Lawson’s claim seeking “to compel[] the other named
responds [sic] to provide responses to petitioner’s [Lawson] filed actions,” as well
as to Lawson’s claim for costs, those claims remain, and Respondents shall file an
answer to Lawson’s “Complaint for Mandamus Action” within thirty (30) days of
the date of this Court’s order.

                                      __________________________________
                                      JULIA K. HEARTHWAY, Judge
