        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gary Tucker,                               :
                         Petitioner        :
                                           :
            v.                             :   No. 439 M.D. 2015
                                           :   Submitted: July 15, 2016
John E. Wetzel, Tanya Brandt,              :
Randall S. Perry, Michael Bell,            :
Supt. Harry, Deborah Alvord,               :
                         Respondents       :

BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                           FILED: October 26, 2016

            Before this Court in our original jurisdiction are the preliminary
objections in the nature of a demurrer filed by John E. Wetzel, Secretary, Tanya
Brandt, Randall S. Perry, Michael Bell, Superintendent Harry and Deborah Alvord
(Respondents) of the Department of Corrections (DOC) to an amended petition for
review filed by Gary Tucker (Tucker), a state prison inmate representing himself.
For the reasons set forth below, we sustain DOC’s preliminary objections and
dismiss the amended petition for review.


                                  I. Background
            Tucker is currently incarcerated at the State Correctional Institution–
Albion. According to a news clipping attached to Tucker’s amended petition for
review, he is serving a sentence of 45½ years to 97 years for attempted murder,
robbery, and intimidation of a witness.
               DOC maintains an administrative file on Tucker, which contains
separation records. A separation is an internal DOC mechanism used to ensure
that two or more inmates in its custody are not housed with or near each other for
purposes of maintaining security. Dep’t. Br. at 5 n.1. In this case, Tucker is
separated from a co-defendant.


               Tucker challenges his confinement to the extent his separation record
contains an error. Am. Pet. for Review at ¶9. Specifically, Tucker alleges his
separation record indicates he testified against his co-defendant, but he asserts the
separation was entered erroneously. Am. Pet. for Review at ¶12. Tucker avers his
complaint does not seek to challenge the separation itself, stating DOC “can keep
the separation intact.” Am. Pet. for Review at ¶9.1 Referencing exhibits attached
to his amended petition, Tucker avers he tried to correct the records through
grievance proceedings, but he was unsuccessful.


               Tucker avers that because of the false, inaccurate and misleading data
in his file, he is now at risk of harm by being labeled a snitch, which is now
causing “mental/psychological effects on the plaintiff ….” Am. Pet. for Review at
¶14. His demand for relief seeks “Habeas corpus relief from the condition of
confinement foisted upon him which places him at risk of serious bodily harm
from the prisoners due to this factually false information ….” Am. Pet. for Review

       1
          To the extent Tucker challenges the fact he is separated from his co-defendant, “[i]t is
well-settled that the decision where to house inmates is at the core of prison administrators’
expertise.” McKune v. Lile, 536 U.S. 24, 39 (2002). An inmate has no guarantee he will be
incarcerated in a particular prison. Meachum v. Fano, 427 U.S. 226 (1976). Nor does an inmate
have a reasonable expectation he will be housed within any particular cell within an institution.
Neitzke v. Williams, 490 U.S. 319 (1989).



                                                2
at 4. In the alternative, he seeks declaratory relief “declaring the information in
plaintiff[’s] file to be false[,] inaccurate and misleading as well as slanderous and
capable of placing the plaintiff at risk of serious bodily harm.” Id.


             DOC filed preliminary objections in the nature of a demurrer seeking
to dismiss Tucker’s amended petition because he has not established a clear right
to a court-ordered removal of a notation in DOC’s separation records. DOC
further asserts Tucker does not allege any actual harm as a result of the internal
separation records. DOC’s Br. at 6, 12. Finally, DOC argues Tucker is not
entitled to habeas corpus relief because he failed to allege conditions that violate
the Eighth Amendment of the U.S. Constitution, which proscribes cruel and
unusual punishment.


                                   II. Discussion
             According to Pa.R.C.P. No. 1028(a)(4), preliminary objections may
be filed for legal insufficiency of a pleading (demurrer). Pa.R.C.P. No. 1028(a)(4).
In considering a demurrer, we accept as true all well-pled material allegations in
the petition, as well as all inferences reasonably deducible therefrom. Aviles v.
Dep't of Corr., 875 A.2d 1209 (Pa. Cmwlth. 2005). However, conclusions of law
and unjustified inferences are not so admitted. Allen v. Dep’t of Corr., 103 A.3d
365 (Pa. Cmwlth. 2014). A demurrer must be sustained where it is clear and free
from doubt that the law will not permit recovery under the facts alleged. Id.; see
also Doxsey v. Commonwealth, 674 A.2d 1173 (Pa. Cmwlth. 1996).




                                          3
                                  Habeas Corpus Relief
              DOC focuses most of its argument on mandamus relief.2 Briefly,
DOC also argues that, although Tucker styled his complaint as seeking habeas
corpus relief, he does not state a claim upon which such relief may be granted.
Therefore, DOC argues, this claim should be dismissed.


              The availability of habeas corpus in Pennsylvania is prescribed by
statute. 42 Pa. C.S. §§6502-6503. Section 6502(a) of the Judicial Code provides:
“Any judge of a court of record may issue the writ of habeas corpus to inquire into
the cause of detention of any person or for any other lawful purpose.” 42 Pa. C.S.
§6502. Section 6503 of the Judicial Code states as follows:

              (a) General rule.--Except as provided in subsection (b), an
              application for habeas corpus to inquire into the cause of
              detention may be brought by or on behalf of any person
              restrained of his liberty within this Commonwealth under any
              pretense whatsoever.

              (b) Exception.--Where a person is restrained by virtue of a
              sentence after conviction for a criminal offense, the writ of
              habeas corpus shall not be available if a remedy may be had by
              post-conviction hearing proceedings authorized by law.

42 Pa. C.S. §6503.          Habeas corpus relief may be available to correct an
unconstitutional condition of confinement, such as a condition which violates the
Eighth Amendment “cruel and unusual punishment” clause.                      See Griffin v.
Vaughn, 112 F.3d 703 (3d Cir. 1997).



       2
         Tucker’s original petition for review was styled as seeking mandamus relief. DOC filed
preliminary objections. In response, Tucker filed his amended petition, which dropped
references to mandamus and incorporated habeas corpus claims.



                                              4
             In order to state a “failure to protect” claim which violates the Eighth
Amendment, a plaintiff must plead his conditions of confinement posed a
“substantial risk of serious harm” to his health and safety. Pearson v. Vaughn, 102
F. Supp. 2d 282, 290 (E.D. Pa. 2000). Eighth Amendment liability requires proof
“that the deprivation suffered was sufficiently serious, and that a prison official
acted with deliberate indifference in subjecting [the prisoner] to that deprivation.”
Griffin, 112 F.3d at 709 (internal citations omitted).


             The deliberate indifference standard contains both an objective
element and a subjective element.        The former requires that the deprivation
suffered by the prisoner be “objectively, ‘sufficiently serious….’”        Farmer v.
Brennan, 511 U.S. 825, 834 (1994).            As the United States Supreme Court
explained in Farmer, 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.” Id.
at 834. The subjective element requires that the officials act with a “sufficiently
culpable state of mind.”     Id. In Farmer, the Court illuminated the nature of
deliberate indifference as follows:

             We hold … that a prison official cannot be found liable
             under the Eighth Amendment for denying an inmate
             humane conditions of confinement 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 could be drawn that a
             substantial risk of serious harm exists, and he must also
             draw the inference.

Id. at 837; see also Kretchmar v. Commonwealth, 831 A.2d 793 (Pa. Cmwlth.
2003).



                                          5
             Although our state courts have not yet dealt with an assertion of an
unconstitutional confinement based on labeling an inmate a “snitch,” various
federal courts have addressed the issue. For example, the Fifth Circuit holds that
labeling an inmate a snitch satisfies the Farmer standard, and constitutes deliberate
indifference to the safety of that inmate. Benefield v. McDowall, 241 F.3d 1267
(5th Cir. 2001). Other circuit court holdings are not as definitive, but to some
extent they recognize that labeling an inmate a snitch has the potential for harm
and may violate constitutional guarantees. Id. (citing Reece v. Groose, 60 F.3d
487 (8th Cir. 1995); Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989);
Harmon v. Berry, 728 F.2d 1407 (11th Cir. 1984)).


             A common factual situation that gives rise to the “failure to protect a
snitch” claim is where prison personnel tell other inmates or allow them to learn
that an inmate provided information to or cooperated with authorities, and the
inmate is attacked or threatened by the other inmates. E.g., Robinson v. Danberg,
729 F. Supp. 2d 666 (D. Delaware 2010); Merritt v. Hawk, 153 F. Supp. 2d 1216
(D. Colo. 2001). There are numerous federal trial court cases that hold that the
complaining inmate must allege and prove that he faced actual or imminent harm.
E.g., Abney v. Jopp, 655 F. Supp. 2d 231 (W.D. N.Y. 2009); Pierre v. James, Civil
Action No. 14-748-JJB-RLB, 2015 WL 4772158 (M.D. La. Aug. 12, 2015).


             Within the context of the “snitch” line of cases, there are several
glaring deficits in Tucker’s amended petition. First and foremost, Tucker does not
allege that DOC actors told other inmates that he was a snitch, or otherwise made
information in his personnel file available to other inmates. Therefore, Tucker



                                         6
fails to allege a causal relationship between DOC action and his fear of bodily
injury. See Robinson; Merritt.


             Second, Tucker avers that DOC officials separated him from his co-
defendant, who would be the person adversely affected by Tucker’s alleged
cooperation with authorities. From this admission we must conclude that DOC
officials were not indifferent to injury risks to Tucker. To the contrary, DOC
actors took steps to protect Tucker from his co-defendant. Tucker fails to aver
facts sufficient to satisfy the subjective “culpable state of mind” standard of
Farmer.    There are no known cases that conclude such protective action
nevertheless constitutes an Eighth Amendment failure to protect.


             Third, Tucker does not aver any facts to support a conclusion that he
faced actual or imminent harm. More particularly, he does not aver that he was
threatened, nor does he describe any situation during his confinement that could be
viewed as “objectively, ‘sufficiently serious ….’” Kretchmar, 831 A.2d at 798
(citing Farmer 511 U.S. at 834). Rather, Tucker’s bodily injury averments are fact-
free conclusions. Thus, Tucker fails to aver facts sufficient to satisfy the objective
standard of Farmer. See Abney.


             More generically, Tucker does not allege how he was deprived of
humane conditions of confinement.          Consequently, Tucker failed to allege
conditions that violate the Eighth Amendment. Therefore, habeas corpus relief is
not available here. Rivera v. Pa. Dep’t of Corr., 837 A.2d 525 (Pa. Super. 2003);




                                          7
see also Commonwealth ex rel. Fortune v. Dragovich, 792 A.2d 1257 (Pa. Super.
2002).


                                  Declaratory Judgment
               As an alternative remedy, Tucker requests this Court to declare “the
information in plaintiff[’s] file to be false[,] inaccurate and misleading as well as
slanderous and capable of placing the plaintiff at risk of serious bodily harm.”
Am. Pet. for Review at 4. DOC does not respond to the request for declaratory
relief in its brief.


               Nevertheless, from the foregoing discussion it is clear that Tucker
fails to state a claim for injury to a protected liberty interest in his reputation. This
is because Tucker fails to allege publication of a defamatory statement by DOC
actors to a third party.3


               The redress provided for defamation under the substantive law of
Pennsylvania is an action in tort. Sprague v. Walter, 543 A.2d 1078 (Pa. 1988).
Pennsylvania law requires, as an essential element of defamation, that the
falsehood be published. Cushman v. Trans Union Corp., 115 F.3d 220 (3d Cir.
1997). The communication must be expressed to a third party in order to be
published. Davis v. Res. for Human Dev., Inc., 770 A.2d 353 (Pa. Super. 2001).


       3
          We question whether an internal notation that an inmate testified against a co-defendant
is capable of a defamatory meaning as a matter of law. Statements imputing commission of an
indictable offense are capable of a defamatory meaning. Krochalis v. Ins. Co. of North America,
629 F. Supp. 1360 (E.D. Pa. 1985). However, no Pennsylvania court declares that statements
that a person was available as a witness in the prosecution of another could be defamatory.



                                                8
The plaintiff must allege to whom the statement was published. Suppan v. Kratzer,
660 A.2d 226 (Pa. Cmwlth. 1995).          Tucker fails to satisfy these pleading
requirements.


            In our previous discussion we held that Tucker failed to set forth a
claim for a violation of his Eighth Amendment protections against cruel and
unusual punishment. We also hold that Tucker failed to state a claim for injury to
his reputation. Tucker’s amended petition for review does not suggest any other
constitutional rights are implicated.   In these circumstances, it is difficult to
understand what declaratory relief may be available to Tucker.


            More importantly, our holdings raise the question of whether we have
jurisdiction to inquire further into this matter. Our Supreme Court’s decision in
Bronson v. Central Office Review Committee, 721 A.2d 357 (Pa. 1998) is
instructive on the issue of our jurisdiction. Bronson involved confiscation of
inmate civilian clothing. Our Supreme Court held the Commonwealth Court does
not have appellate jurisdiction over inmate appeals of decisions by intra-prison
disciplinary tribunals, such as grievance and misconduct appeals.


            Pertinent here, the Supreme Court also held the Commonwealth Court
usually does not have original jurisdiction over an inmate’s petition for review
after a grievance proceeding. The Court held that original jurisdiction is not
available “in a case not involving constitutional rights not limited by [DOC].” Id.
at 359. Noting that prison inmates do not enjoy the same level of constitutional
protections afforded to non-incarcerated citizens, the Court concluded that an



                                         9
attempt to color the confiscation as a constitutional deprivation would fail.
“Unless ‘an inmate can identify a personal or property interest … not limited by
[DOC] regulations and which has been affected by a final decision of [DOC]’ the
decision is not an adjudication subject to the court’s review.”                     Id. (citation
omitted).


               Here, Tucker’s filings in this Court’s original jurisdiction were
preceded by grievance proceedings through DOC which were not resolved to
Tucker’s satisfaction. In this Court, Tucker failed to state a claim for deprivation
of his Eighth Amendment rights, he failed to state a claim for injury to his
reputation, and he did not identify any other constitutional rights at issue. Pursuant
to Bronson, we lack original jurisdiction to inquire further into this matter.4


               For the reasons set forth above, we sustain the DOC’s preliminary
objections and dismiss Tucker’s amended petition for review.




                                             ROBERT SIMPSON, Judge




       4
         Although DOC did not raise a challenge to this Court’s jurisdiction, once the issue
becomes apparent, this Court may raise the issue on its own. McCutcheon v. Phila. Elec. Co.,
788 A.2d 345 (Pa. 2002) (a court’s jurisdiction is a threshold issue that the court may consider of
its own motion and at any time).



                                                10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gary Tucker,                            :
                        Petitioner      :
                                        :
            v.                          :   No. 439 M.D. 2015
                                        :
John E. Wetzel, Tanya Brandt,           :
Randall S. Perry, Michael Bell,         :
Supt. Harry, Deborah Alvord,            :
                         Respondents    :


                                     ORDER

            AND NOW, this 26th day of October, 2016, the preliminary
objections filed by Respondents, John E. Wetzel, Tanya Brandt, Randall S. Perry,
Michael Bell, Supt. Harry, and Deborah Alvord are SUSTAINED and the
amended petition for review filed by Gary Tucker is DISMISSED.




                                       ROBERT SIMPSON, Judge
