           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gerald Watkins,                              :
                        Appellant            :
                                             :
                v.                           : No. 807 C.D. 2018
                                             : Submitted: September 7, 2018
Pennsylvania Department of                   :
Corrections, Secretary, John Wetzel,         :
Superintendent Robert Gilmore, et al.        :


BEFORE:         HONORABLE P. KEVIN BROBSON, Judge
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
SENIOR JUDGE COLINS                                         FILED: October 18, 2018

                This matter is an appeal filed by Gerald Watkins (Plaintiff), pro se,
from an order of the Greene County Court of Common Pleas (trial court) dismissing
his civil damages action sua sponte pursuant to the Prison Litigation Reform Act
(PLRA).1 For the reasons set forth below, we affirm.
                On March 13, 2017, Plaintiff, an inmate at the State Correctional
Institution at Greene (SCI-Greene) under sentence of death, filed a pro se complaint
against the Pennsylvania Department of Corrections (DOC), DOC Secretary John
Wetzel, and Superintendent Robert Gilmore of SCI-Greene (collectively,
Defendants).         In his complaint, Plaintiff asserted claims under 42 U.S.C. § 1983
(Section 1983) for alleged violation of his rights under the Fourth, Fifth, Eighth, and
Fourteenth Amendments to the United States Constitution based on defendant
Wetzel’s signing of a Notice of Execution on December 2, 2015 scheduling

1
    42 Pa. C.S. §§ 6601-6608.
Plaintiff’s execution for January 19, 2016 and DOC’s failure to remove him from
“Phase 2” awaiting-execution status until Monday, December 7, 2015, after a stay
of execution was ordered by the United States District Court for the Western District
of Pennsylvania on Friday, December 4, 2015. (Complaint ¶¶1-2, 8-9, 11-12, 20.)
Plaintiff’s complaint pleaded claims against defendants Wetzel and Gilmore in both
their official and personal capacity and sought as relief only monetary damages. (Id.
at 1, 7 ¶¶23 & 25, 8.) On March 30, 2017, the trial court dismissed Plaintiff’s
complaint sua sponte for failure to state a claim upon which relief may be granted.
Plaintiff timely filed the instant appeal.2
               Before this Court, Plaintiff argues that 1) his complaint stated a valid
Section 1983 claim against Defendants for violation of his federal constitutional
rights; and 2) that if it did not, he should have been granted leave to amend the
complaint. Neither of these arguments is meritorious.3
               Section 6602(e) of the PLRA provides that “the court shall dismiss
prison conditions litigation at any time, including prior to service on the defendant,
if the court determines [that] … (2) [t]he prison conditions litigation is frivolous or
malicious or fails to state a claim upon which relief may be granted or the defendant
is entitled to assert a valid affirmative defense, including immunity, which, if


2
  Plaintiff appealed the trial court’s order to the Superior Court, which transferred the appeal to
this Court because it is an appeal in an action for damages against a Commonwealth agency and
Commonwealth officers.
3
  Our review of the trial court’s dismissal of this action is plenary. McCool v. Department of
Corrections, 984 A.2d 565, 568 n.4 (Pa. Cmwlth. 2009). Although our conclusion that Plaintiff’s
complaint fails to state a cause of action is based on different grounds than those set forth by the
trial court, this Court may affirm a trial court’s order on other grounds where affirmance is required
for different reasons than those on which it based its decision. Orange Stones Co. v. City of
Reading, 87 A.3d 1014, 1023 (Pa. Cmwlth. 2014); Guy M. Cooper, Inc. v. East Penn School
District, 903 A.2d 608, 618 & n.9 (Pa. Cmwlth. 2006).
                                                  2
asserted, would preclude the relief.” 42 Pa. C.S. § 6602(e)(2). Plaintiff’s complaint
constitutes “prison conditions litigation” under the PLRA, as it seeks damages for
the actions of government parties that affected him as a prison inmate. 42 Pa. C.S.
§ 6601 (defining “prison conditions litigation” to include any “civil proceeding …
with respect to the conditions of confinement or the effects of actions by a
government party on the life of an individual confined in prison”). Sua sponte
dismissal of Plaintiff’s complaint was therefore proper if Plaintiff’s complaint failed
to state a cause of action or the action was otherwise barred as a matter of law. Shore
v. Department of Corrections, 168 A.3d 374, 386-87 n.8 (Pa. Cmwlth. 2017);
McCool v. Department of Corrections, 984 A.2d 565, 569 (Pa. Cmwlth. 2009).
             Section 1983 provides in relevant part:

             Every person who, under color of any statute, ordinance,
             regulation, custom, or usage, of any State or Territory or the
             District of Columbia, subjects, or causes to be subjected, any
             citizen of the United States or other person within the
             jurisdiction thereof to the deprivation 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. Section 1983 claims may be brought in the courts of this
Commonwealth and are not subject to state sovereign immunity defenses. Howlett
v. Rose, 496 U.S. 356, 367-83 (1990); Owens v. Shannon, 808 A.2d 607, 610 (Pa.
Cmwlth. 2002); Heinly v. Commonwealth, 621 A.2d 1212, 1215-16 (Pa. Cmwlth.
1993). A state or state agency, however, is not a “person” under Section 1983 and
cannot be sued under Section 1983 for violation of federal constitutional rights. Will
v. Michigan Department of State Police, 491 U.S. 58, 64-71 (1989); Flagg v.
International Union, Security, Police, Fire Professionals of America, Local 506, 146
A.3d 300, 305-07 (Pa. Cmwlth. 2016); Pennsylvania Workers’ Compensation

                                           3
Judges Professional Association v. Executive Board of Commonwealth, 39 A.3d
486, 493 (Pa. Cmwlth. 2012), aff’d without op., 66 A.3d 765 (Pa. 2013); Association
of Settlement Companies v. Department of Banking, 977 A.2d 1257, 1264 (Pa.
Cmwlth. 2009) (en banc); Verrichia v. Department of Revenue, 639 A.2d 957, 962-
64 (Pa. Cmwlth. 1994). Because DOC is a Commonwealth agency, Plaintiff as a
matter of law has no cause of action against DOC. Will, 491 U.S. at 64-71; Shore,
168 A.3d at 386-87 n.8; Association of Settlement Companies, 977 A.2d at 1264.
             Section 1983 actions against state officials in their official capacity that
seek only monetary damages are equally barred, as such a suit against a state official
in his official capacity constitutes suit against the state itself. Will, 491 U.S. at 71;
Flagg, 146 A.3d at 305, 307; Pennsylvania Workers’ Compensation Judges
Professional Association, 39 A.3d at 492-93; Verrichia, 639 A.2d at 962-64.
Because the complaint asserted only claims for money damages, Plaintiff’s claims
against defendants Wetzel and Gilmore in their official capacity likewise cannot
state a cause of action under Section 1983. Will, 491 U.S. at 71; Verrichia, 639 A.2d
at 962-64.
             Plaintiff’s complaint, however, also asserted claims against defendants
Wetzel and Gilmore in their personal capacity. (Complaint at 1 (stating that action
is filed against defendants “in their official and individual capacity”).) A cause of
action for damages under Section 1983 can be asserted against a state official in his
personal capacity, even though the acts on which liability is based were in the course
of his official duties. Hafer v. Melo, 502 U.S. 21, 25-31 (1991); Flagg, 146 A.3d at
305-07; Schnupp v. Port Authority of Allegheny County, 710 A.2d 1235, 1238-39 &
n.4 (Pa. Cmwlth. 1998). We therefore must examine whether the complaint stated




                                           4
a claim against these two individual defendants for violation of Plaintiff’s federal
constitutional rights. We conclude that it did not.
              Plaintiff’s complaint alleged that defendant Wetzel’s signing of the
Notice of Execution on December 2, 2015 violated his constitutional rights because
it was issued in violation of a February 2005 federal stay of execution order.
(Complaint ¶¶3, 13 & Exs. 9 & 13.) It is clear, however, from the February 2005
stay order and the December 2015 stay motion that the February 2005 stay order was
not in effect in 2015.4 The February 2005 stay order stayed Plaintiff’s execution,
scheduled for March 29, 2005, pending adjudication of a habeas corpus petition filed
by Plaintiff in 2005. (2/28/05 Stay Order, attached to Appellant’s Br.) That 2005
habeas corpus petition was dismissed by the federal court without prejudice later in
2005. (2015 Stay Motion ¶1, attached to Plaintiff’s Complaint as Ex. 3.) There is
therefore no basis for Plaintiff’s claim that Notice of Execution was unconstitutional.
              The other act that Plaintiff alleges violated his constitutional rights was
DOC’s failure to remove him from awaiting-execution status for three days after a
stay of execution was granted. This claim does not state a cause of action against
defendant Wetzel or defendant Gilmore because Plaintiff does not allege that either
of these individual defendants himself delayed transmission of the December 4, 2015
stay order or failed to remove Plaintiff from awaiting-execution status after learning
that the stay had been issued. Rather, he alleges that DOC intentionally disregarded
the December 4, 2015 stay order until December 7, 2015 and seeks to impose
vicarious liability for that conduct on defendants Wetzel and Gilmore based on the


4
  Where, as here, a claim is based on written documents, the Court may consider those documents
in determining whether a complaint states a cause of action. Richardson v. Wetzel, 74 A.3d 353,
358 n.4 (Pa. Cmwlth. 2013); Barndt v. Department of Corrections, 902 A.2d 589, 591-92 n.2 (Pa.
Cmwlth. 2006).

                                              5
positions that they hold at DOC and SCI-Greene. (Complaint ¶¶8-9, 11-12, 17-18,
23, 25 & Exs. 9 & 11; see also Appellant’s Br. at 5 (characterizing the basis of this
claim as “staff’s Intentional and deliberate malfeasance [sic]”).) Claims for money
damages for violation of constitutional rights cannot be based on vicarious liability
or respondeat superior; to state such a cause of action against a government official
under Section 1983, the plaintiff must allege that the individual defendant was
personally involved in the alleged wrongs. Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009); Bush v. Veach, 1 A.3d 981, 986 (Pa. Cmwlth. 2010); Murray v. Wetzel, (Pa.
Cmwlth., 542 M.D. 2017, filed August 8, 2018), slip op. at 6-10, 17;5 Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Because Plaintiff did not state a
cause of action against any defendant, the trial court did not err in dismissing the
complaint sua sponte. 42 Pa. C.S. § 6602(e)(2).
               The trial court also did not err in failing to grant Plaintiff leave to amend
his complaint. Leave to amend a complaint is properly denied where the amendment
sought by the plaintiff would be futile. Carlino v. Whitpain Investors, 453 A.2d
1385, 1388-89 (Pa. 1982); Sobat v. Borough of Midland, 141 A.3d 618, 627 (Pa.
Cmwlth. 2016); Wiernik v. PHH U.S. Mortgage Corp., 736 A.2d 616, 624 (Pa.
Super. 1999). Here, no amendment could change the fact that DOC, as a state
agency, is not subject to suit. Moreover, the only averments that Plaintiff seeks to
add by amendment concern conduct of non-party DOC guards and the harm that he
contends that he suffered, not averments that defendant Wetzel or defendant Gilmore
knowingly delayed changing his status after the December 4, 2015 stay order.
(Appellant’s Br. at 4-6.)

5
  Because it is an unreported decision, this opinion is not binding precedent, but is considered by
the Court for its persuasive value. 210 Pa. Code § 69.414(a).

                                                6
             For the foregoing reasons, we affirm the trial court’s order dismissing
Plaintiff’s complaint for failure to state a claim.



                                       __________ ___________________________
                                       JAMES GARDNER COLINS, Senior Judge




                                            7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gerald Watkins,                         :
                  Appellant             :
                                        :
            v.                          : No. 807 C.D. 2018
                                        :
Pennsylvania Department of              :
Corrections, Secretary, John Wetzel,    :
Superintendent Robert Gilmore, et al.   :



                                    ORDER

            AND NOW, this 18th day of October, 2018, the order of the Greene
County Court of Common Pleas in the above-captioned matter is AFFIRMED.



                                   __________ ___________________________
                                   JAMES GARDNER COLINS, Senior Judge
