        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher Hammond,                     :
                         Petitioner      :
                                         :
            v.                           :   No. 265 M.D. 2017
                                         :   Submitted: December 1, 2017
Pennsylvania Department of               :
Corrections,                             :
                       Respondent        :

BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                         FILED: February 14, 2018

            Petitioner, Christopher Hammond (Hammond), filed a petition for
review in this Court’s original jurisdiction, challenging the procedure employed by
prison officials to review and disallow photographs sent to him. Before us for
disposition are the preliminary objections of the Pennsylvania Department of
Corrections (Department) to Hammond’s petition. We sustain the Department’s
preliminary objections and dismiss the petition.


                                  I. Background
            Hammond is incarcerated at the State Correctional Institution at Albion
(SCI-Albion). In February 2017, the SCI-Albion Incoming Publications Review
Committee issued a notice rejecting, on the basis of nudity, 162 incoming
photographs directed to Hammond. Hammond filed an initial grievance pursuant to
Department policy, arguing the photographs did not contain nudity. The SCI-Albion
Superintendent denied Hammond’s grievance, ruling the photographs were sexually
explicit.       Hammond appealed the Superintendent’s determination.                    The
Department’s Chief Grievance Officer denied Hammond’s appeal, finding the
photos violated Department policy DC-ADM 803.1


                Hammond then filed a petition for review in this Court. Hammond
alleged the Department’s decision violated Department policy. He asserted that
Department personnel “have been replacing DC-ADM 803 – as related to nudity and
explicit sexual material – with individualized benchmarks of morality….” Pet. for
Review at ¶21. He also contended the Department’s procedure was unfair because
it compelled “an inmate to properly argue on appeal reasons he should be awarded
a rejected publication without being permitted to physically view the publication.”
Id. at ¶23. Hammond further asserted the Department’s violation of its own policy
violated his due process rights under the First and Fifth Amendments of the United
States Constitution.


                The Department filed preliminary objections in the nature of a demurrer
to Hammond’s petition. The Department submitted a timely brief in support of its
preliminary objections. Hammond filed an answer to the preliminary objections, but
failed to file a brief.


                                            II. Issues
                 The Department argues Hammond has no First Amendment right to
possess pornography, and that the Pennsylvania Supreme Court has upheld DC-


       1
           The Department also enacted the policy as a regulation, 37 Pa. Code §93.2.


                                                 2
ADM 803 against First Amendment challenges. The Department also argues
Hammond has no liberty or property interest to trigger Fifth Amendment substantive
due process rights, and the Department’s grievance procedures offer all the process
to which Hammond is entitled. The Department further asserts that its policies do
not create any enforceable rights.


                                     III. Discussion
             In ruling on preliminary objections, this Court accepts as true all well-
pled allegations of material fact, as well as all inferences reasonably deducible from
those facts. Christ the King Manor v. Dep’t of Pub. Welfare, 911 A.2d 624 (Pa.
Cmwlth. 2006). However, this Court need not accept unwarranted inferences,
conclusions of law, argumentative allegations, or expressions of opinion. Id. For
preliminary objections to be sustained, it must appear with certainty that the law will
permit no recovery. Id. Any doubt must be resolved in favor of the non-moving
party. Id.


             Although not cited by the Department, Shore v. Pennsylvania
Department of Corrections, 168 A.3d 374 (Pa. Cmwlth. 2017), directly controls the
outcome in this case. Shore also reached this Court through an original jurisdiction
petition filed by an inmate of SCI-Albion. Shore alleged facts virtually identical to
those in this case, except that fewer photographs were at issue. He also asserted
essentially the same claims. He alleged constitutional due process violations under
the First and Fourteenth Amendments. He also averred the same complaints
regarding the Department’s policy and implementation of its grievance procedure




                                           3
that Hammond alleges here. Like Hammond, Shore sought a declarative judgment,
money damages, and relief in mandamus.


             The Department in Shore filed preliminary objections in the nature of a
demurrer, as it did in this case. This Court’s analysis in Shore is directly applicable
here.


                                A. First Amendment
             As we explained in Shore, the Pennsylvania Supreme Court previously
concluded DC-ADM 803-1 did not violate any First Amendment right.                 The
Supreme Court found the Department’s policy advanced legitimate penological
interests and inmate treatment objectives of fostering rehabilitation, discouraging
objectification of persons, and minimizing the risk of inappropriate sexual behavior.
Id. (citing Brittain v. Beard, 974 A.2d 479 (Pa. 2009)).


             This Court likewise upheld DC-ADM 803 and its regulation, 37 Pa.
Code §93.2, against a previous First Amendment challenge. We concluded the
policy was not overbroad or vague, and that the petitioner had to plead specific facts
sufficient to undermine the Department’s legitimate penological interests. Shore
(citing Smith v. Beard, 26 A.3d 551 (Pa. Cmwlth. 2011)).


             Here, Hammond based his First Amendment challenge on the same
grounds asserted in Brittain, Smith, and Shore. Accordingly, we find Hammond
likewise fails as a matter of law to plead a viable First Amendment violation.




                                          4
                                 B. Fifth Amendment
               Hammond facially asserted his due process argument under the Fifth
Amendment, rather than under the Fourteenth Amendment as the petitioner did in
Shore. However, that is a distinction without a difference. As this Court explained
in Whitaker v. Wetzel, 170 A.3d 568 (Pa. Cmwlth. 2017), the Fifth Amendment does
not apply directly to the states, but rather, its due process requirement is applied to
the states through the Fourteenth Amendment. Therefore, the due process discussion
in Shore applies to this case; even though the petitioner in Shore cited the Fourteenth
Amendment and Hammond cites the Fifth Amendment, both petitioners asserted the
same rights.


               When a prisoner alleges an official confiscated property in an
unauthorized way, either negligently or intentionally, “due process requires only the
existence of an adequate post-deprivation remedy because it is not feasible for a
prison to provide a hearing prior to taking property that is perceived to be contraband
or against prison regulations.” Shore, 168 A.3d at 383. The Department’s grievance
process provides a sufficient post-deprivation remedy. Id.


               Further, in order to plead a claim for a violation of federal rights, an
inmate must exhaust the administrative grievance process. Id. This Court observed
in Shore that the petitioner did not properly exhaust his remedies in the grievance
process. He argued to this Court that he was not permitted to see the photographs at
issue and therefore was hampered in making his arguments during the grievance
process. However, the record did not indicate that he ever asked to view the
photographs for that purpose during the grievance process. This Court stated,



                                           5
“absent any prohibitory language in the policy, [the petitioner] can only speculate as
to whether the Chief Grievance Officer would apply DC-ADM 804 to forbid him
from viewing the photographs.” Shore, 168 A.3d at 384. This Court explained that
the petitioner could not argue that the grievance system provided inadequate process
on the ground that he was not permitted to view the publications, if he never asked
to review the photographs. Id. Because the policy is facially broad enough to allow
an issue to be heard and relief to be granted, its “procedure is presumptively both
meaningful and adequate.” Id.


             As in Shore, the record here does not reflect any request by Hammond
to view the photographs at issue in order to prepare his argument during the
grievance process.    Therefore, as in Shore, Hammond here failed to plead a
procedural defect based on his alleged inability to view the photographs.


               C. Court Review of Internal Grievance Procedure
             Like Hammond in this case, the petitioner in Shore alleged the
Department erred by determining that the photographs at issue depicted nudity.
Although this was an averment of fact, it was insufficient to overcome the
Department’s preliminary objection. This Court found it lacked jurisdiction to
review either the factual findings or the legal conclusions of the Department’s Chief
Grievance Officer. Id. Resolving grievances is a purely internal function of the
Department, not subject to review by a court. Id. (citing Bronson v. Central Office
Review Comm., 721 A.2d 357 (Pa. 1998)). Moreover, this is true whether the review
is sought in an appeal or in this Court’s original jurisdiction. Id. (citing Xavier v.
Dep’t of Corrections (Pa. Cmwlth., No. 331 M.D. 2016, filed February 8, 2017),



                                          6
2017 Pa. Commw. Unpub. LEXIS 92 (unreported), aff’d per curiam (Pa., No. 14
MAP 2017, filed October 18, 2017), 2017 Pa. LEXIS 2469).


                                   IV. Conclusion
             Based on the foregoing, we sustain the Department’s preliminary
objections. Like the petitioner in Shore, Hammond here did not seek leave to amend.
Further, as we concluded in Shore, we conclude that any attempt by Hammond to
amend his petition to cure its defects would be futile, in that Hammond cannot plead
facts that would entitle him to any recovery against the Department. Therefore, we
dismiss the petition, with prejudice.




                                        ROBERT SIMPSON, Judge




                                         7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Christopher Hammond,                     :
                          Petitioner     :
                                         :
             v.                          :   No. 265 M.D. 2017
                                         :
Pennsylvania Department of               :
Corrections,                             :
                       Respondent        :



                                       ORDER

             AND NOW, this 14th day of           February, 2018, the preliminary
objections of the Department of Corrections are sustained and the petition for review
is DISMISSED, WITH PREJUDICE.




                                        ROBERT SIMPSON, Judge
