          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason Robert Stover,                     :
                  Petitioner             :
                                         :
             v.                          : No. 311 M.D. 2015
                                         : Submitted: April 8, 2016
Progress Community Corrections           :
Center, Waynesburg, PA,                  :
                 Respondent              :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                     FILED: June 8, 2016

             Jason Robert Stover, pro se, has filed a mandamus action against the
Progress Community Corrections Center (Corrections Center) to compel it to
update and expand its law library. The Department of Corrections has responded
with preliminary objections challenging this Court’s jurisdiction and, alternatively,
asserting that the mandamus action fails to state a valid cause of action. We
overrule in part and sustain in part the Department’s objections and dismiss
Stover’s petition.
             In his June 8, 2015, petition, Stover alleges that he is an inmate at
Corrections Center, which he describes as a secure parole violator center located in
Waynesburg, Pennsylvania. Stover alleges that the law library at Corrections
Center consists of “a small collection of outdated law books … a one year
collection (2010) of Federal Supplements and a highly limited ar[r]angement of
random state law books, a great deal of which are 5 or more years out of date.”
Petition, ¶ 4. Stover also alleges that he is not permitted to make photocopies at
the library; there is only one typewriter in the library; the library does not employ a
full-time paralegal; and he is prohibited from traveling to a site with more
resources. Petition, ¶¶ 5-7.
             Stover claims he “has pending court actions and has suffered los[s]es
in court due to a lack of legal resources.” Petition, ¶ 9. He claims “he lost two
court cases, CP 30 MD 38-2015 and CP 30 MD 37-2015, in Greene County Court
of Common Pleas because [Corrections Center] does not have a legitimate law
library.” Petition, ¶ 11. He requests this Court to order Corrections Center to
“provide a more up-to-date law library with more resources and the ability to
research adequate case law and statutes, and rules of court.” Petition, ¶ 12.
             The Department has filed preliminary objections. First, it objects to
this Court’s jurisdiction over Stover’s petition because Corrections Center is not
part of the Commonwealth government.            Second, the Department demurs to
Stover’s petition, asserting that it does not state a legal claim upon which relief
may be granted.
             We begin with a review of the law.           The common law writ of
mandamus lies to compel the performance of a ministerial act or mandatory duty.
Chesapeake Appalachia, LLC v. Golden, 35 A.3d 1277, 1280 n.7 (Pa. Cmwlth.
2012).   “The burden of proof falls upon the party seeking this extraordinary
remedy to establish his legal right to such relief.” Werner v. Zazyczny, 681 A.2d
1331, 1335 (Pa. 1996). Mandamus requires a clear legal right to relief in the
petitioner, a corresponding duty in the respondent and the lack of any other
adequate and appropriate remedy. Wilson v. Pennsylvania Board of Probation and
Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008). Mandamus is not available to
establish legal rights but only to enforce rights that have been established. Id. As


                                          2
a high prerogative writ, mandamus is rarely issued and never to interfere with a
public official’s exercise of discretion. Chadwick v. Dauphin County Office of
Coroner, 905 A.2d 600, 603 (Pa. Cmwlth. 2006). Mandamus relief has been
summarized as follows:

             In short, mandamus is chiefly employed to compel the
             performance (when refused) of a ministerial duty, or to compel
             action (when refused) in matters involving judgment and
             discretion. It is not used to direct the exercise of judgment or
             discretion in a particular way, nor to direct the retraction or
             reversal of an action already taken.

Seeton v. Adams, 50 A.3d 268, 277 (Pa. Cmwlth. 2012) (quoting Pennsylvania
Dental Association v. Insurance Department, 516 A.2d 647, 652 (Pa. 1986)
(internal citations and emphasis omitted)).
             In considering preliminary objections, this Court will treat all the
well-pleaded material facts set forth in the petition as true and make all reasonable
inferences that may be drawn from those facts. Werner, 681 A.2d at 1335. We
need not accept as true conclusions of law, unwarranted inferences, argumentative
allegations, or expressions of opinion. Myers v. Ridge, 712 A.2d 791, 794 (Pa.
Cmwlth. 1998). The test is whether it is clear from all of the facts pleaded that the
pleader will be unable to prove facts legally sufficient to establish his right to
relief. Armstrong County Memorial Hospital v. Department of Public Welfare, 67
A.3d 160, 170 (Pa. Cmwlth. 2013). A demurrer will be sustained only where it is
clear that a pleading does not state a legal claim. Id.
             In its first issue, the Department contends that this Court lacks
jurisdiction because Corrections Center is not a Commonwealth agency,
department, or official with statewide policy-making functions. Section 761(a)(1)
of the Judicial Code limits this Court’s original jurisdiction to actions “[a]gainst
                                           3
the Commonwealth government, including any officer thereof, acting in his official
capacity ….” 42 Pa. C.S. §761(a)(1).1 Stover responds that because Corrections

1
    Section 761 establishes:
         (a) General Rule.--The Commonwealth Court shall have original jurisdiction of
         all civil actions or proceedings:
                  (1) Against the Commonwealth government, including any officer
                  thereof, acting in his official capacity, except:
                          (i) actions or proceedings in the nature of
                          applications for a writ of habeas corpus or post-
                          conviction relief not ancillary to proceedings within
                          the appellate jurisdiction of the court;
                          (ii) eminent domain proceedings;
                          (iii) actions or proceedings conducted pursuant to
                          Chapter 85 (relating to matters affecting
                          government units);
                          (iv) actions or proceedings conducted pursuant to
                          the act of May 20, 1937 (P.L. 728, No. 193),
                          referred to as the Board of Claims Act; and
                          (v) actions or proceedings in the nature of trespass
                          as to which the Commonwealth government
                          formerly enjoyed sovereign or other immunity and
                          actions or proceedings in the nature of assumpsit
                          relating to such actions or proceedings in the nature
                          of trespass.
                  (2) By the Commonwealth government, including any officer
                  thereof, acting in his official capacity, except eminent domain
                  proceedings.
                  (3) Arising under Article V of the act of May 17, 1921 (P.L. 789,
                  No. 285), known as “The Insurance Department Act of 1921.”
                  (4) Original jurisdiction of which is vested in the Commonwealth
                  Court by any statute hereafter enacted.
         (b) Concurrent and exclusive jurisdiction.--The jurisdiction of the Commonwealth
         Court under subsection (a) shall be exclusive except as provided in section 721
         (relating to original jurisdiction) and except with respect to actions or proceedings
         by the Commonwealth government, including any officer thereof, acting in his
         official capacity, where the jurisdiction of the court shall be concurrent with the
         several courts of common pleas.
(Footnote continued on the next page . . . )
                                                   4
Center is operated and controlled by the Department, it is a part of state
government and, thus, this Court has jurisdiction over his petition. We agree.
               Section 4103 of the Prisons and Parole Code defines a “[c]ommunity
corrections center” as “[a] residential program that is supervised and operated by
the Department of Corrections in accordance with Chapter 50 (relating to
community corrections centers and community corrections facilities).” 61 Pa. C.S.
§4103 (emphasis added). The Department is permitted to “[e]stablish community
corrections centers at locations throughout this Commonwealth approved by the
Governor.”      61 Pa. C.S. §5002(1).          The chair of the Pennsylvania Board of
Probation and Parole has the authority to:

               (1) Designate community corrections centers or community
               corrections facilities where parolees are to be housed.

               (2) Determine whether parolees are to be housed in a secured or
               unsecured portion of a community corrections center or
               community corrections facility.

               (3) Determine, jointly with the Secretary of the Department of
               Corrections, using evidence-based practices designed to reduce
               the likelihood of recidivism and improve public safety, the
               appropriate treatment and programming for parolees who are


(continued . . . )
       (c) Ancillary matters.--The Commonwealth Court shall have original jurisdiction
       in cases of mandamus and prohibition to courts of inferior jurisdiction and other
       government units where such relief is ancillary to matters within its appellate
       jurisdiction, and it, or any judge thereof, shall have full power and authority when
       and as often as there may be occasion, to issue writs of habeas corpus under like
       conditions returnable to the said court. To the extent prescribed by general rule
       the Commonwealth Court shall have ancillary jurisdiction over any claim or other
       matter which is related to a claim or other matter otherwise within its exclusive
       original jurisdiction.
42 Pa. C.S. §761.


                                                5
             housed at community corrections centers and community
             corrections facilities.

             (4) Audit, jointly with the secretary, the performance of
             treatment and services provided by community corrections
             centers and community corrections facilities.

61 Pa. C.S. §5005.
             The Department’s website states that its Bureau of Community
Corrections operates “13 state community corrections centers” including “Progress
[Corrections Center] (on the grounds of SCI Greene).”2            Section 2(B) of the
Department’s Policy Statement 8.1.1 on Community Corrections Centers sets forth
the procedures for filling vacant staff positions at a community corrections center.
Policy Number 8.1.1, Section 2(B) at 2-2. Specifically, it states that the Bureau of
Community Corrections

             is governed by the Commonwealth of Pennsylvania Personnel
             Policies, Procedures, Collective Bargaining Agreements, Civil
             Service Rules and Regulations administered by the
             Department’s Bureau of Human Resources (BHR), Manpower
             Management and Personnel Services Division.

Id.
             The Department offers only a conclusory argument that the named
defendant, Corrections Center, is not part of state government. It does not explain
why its control, as set forth above, does not make Corrections Center a state actor.
We reject the Department’s objection to jurisdiction.




2
 http://www.cor.pa.gov/Facilities/CommunityCorrections/Pages/What-is-Community-
corrections.aspx (last viewed May 11, 2016).


                                           6
             In its second issue, the Department contends that Stover’s petition
does not state a legal claim. To establish a cognizable claim of lack of access to
the courts, the claimant must aver an actual injury. The Department asserts that
Stover’s petition lacks such factual allegations. Although the petition alleges that
Stover has pending court cases and has suffered two prior losses in court, it does
not allege facts to show a causal relationship between insufficient library resources
and Stover’s inability to litigate his prior and pending cases. Stover responds that
he has established an actual injury because the two cases listed in the petition show
he “was unable to argue proper case law or mount [an] appeal after the fact.”
Stover’s Brief at 4.3
             The constitutional right of access to the courts has been firmly
established. Bounds v. Smith, 430 U.S. 817, 821 (1977).4 In Bounds, the United
States Supreme Court held that the states have an affirmative duty to assure
prisoners access to the courts that is “adequate, effective, and meaningful.” Id. at
822. The Supreme Court further explained that “the fundamental constitutional
right of access to the courts requires prison authorities to assist inmates in the
preparation and filing of meaningful legal papers by providing prisoners with
adequate law libraries or adequate assistance from persons trained in the law.” Id.
at 828.

3
 This sentence constitutes Stover’s entire discussion of the prior cases.
4
 In Bounds, 430 U.S. 817, the right of access to the courts was grounded in the Fourteenth
Amendment to the United States Constitution. It provides, in relevant part:
       No State shall make or enforce any law which shall abridge the privileges or
       immunities of citizens of the United States; nor shall any State deprive any person
       of life, liberty, or property, without due process of law; nor deny to any person
       within its jurisdiction the equal protection of the laws.
U.S. CONST. amend. XIV, § 1.


                                            7
             Notably, both parties cite Lewis v. Casey, 518 U.S. 343 (1996).
Therein, 22 inmates incarcerated by the Arizona Department of Corrections
claimed their constitutional right to access to the courts was violated because of an
inadequate prison library, with undertrained staff and outdated legal materials.
Illiterate and non-English-speaking inmates did not receive adequate assistance and
inmates segregated for disciplinary or security reasons were completely denied
access to the library. The United States District Court for the District of Arizona
ordered extensive changes to the prison’s law library and legal assistance program.
The Court of Appeals for the Ninth Circuit affirmed the injunction. The Supreme
Court granted certiorari.
             In evaluating the inmates’ action, the Supreme Court explained that
Bounds did not establish “an abstract, freestanding right to a law library or legal
assistance….” Id. at 351. To establish a constitutional violation, an inmate “must
show actual injury.” Id. at 349. “[A]n inmate cannot establish relevant actual
injury simply by establishing that his prison’s law library or legal assistance
program is subpar in some theoretical sense.” Id. at 351. Instead,

             the inmate therefore must go one step further and demonstrate
             that the alleged shortcomings in the library or legal assistance
             program hindered his efforts to pursue a legal claim. He might
             show, for example, that a complaint he prepared was dismissed
             for failure to satisfy some technical requirement which, because
             of deficiencies in the prison’s legal assistance facilities, he
             could not have known. Or that he had suffered arguably
             actionable harm that he wished to bring before the courts, but
             was so stymied by inadequacies of the law library that he was
             unable even to file a complaint.
Id. Moreover, the right of access to the courts
             does not guarantee inmates the wherewithal to transform
             themselves into litigating engines capable of filing everything
                                         8
               from shareholder derivative actions to slip-and-fall claims. The
               tools it requires to be provided are those that the inmates need
               in order to attack their sentences, directly or collaterally, and in
               order to challenge the conditions of their confinement.
               Impairment of any other litigating capacity is simply one of the
               incidental (and perfectly constitutional) consequences of
               conviction and incarceration.

Id. at 355 (emphasis in original).
               The inmate plaintiffs in Lewis included only two that had suffered an
actual injury. Both were illiterate but had not been given assistance. One inmate’s
lawsuit was dismissed with prejudice, and the other inmate was unable even to file
a complaint. The Supreme Court concluded that these two instances of harm did
not warrant a system-wide change of the law library. The Supreme Court reversed
and remanded for the District Court to tailor its injunction to the two instances of
actual harm.
               The Department also directs our attention to Christopher v. Harbury,
536 U.S. 403 (2002), where the Supreme Court stated that “[w]hether an access
claim turns on a litigating opportunity yet to be gained or an opportunity already
lost, the very point of recognizing any access claim is to provide some effective
vindication for a separate and distinct right to seek judicial relief for some wrong.”
Id. at 414-15. “It follows that the underlying cause of action, whether anticipated
or lost, is an element that must be described in the complaint, just as much as
allegations must describe the official acts frustrating the litigation.” Id. at 415.
Specifically, a plaintiff must show (1) that he suffered an actual injury - that he lost
a chance to pursue a “nonfrivolous” or “‘arguable’ underlying claim” and (2) that
he has no remedy other than in the present denial of access suit. Id.




                                            9
             Because Lewis established that losing a court case constitutes an
“actual injury,” Stover argues that his petition states a claim. The Department
counters that Lewis requires Stover to plead facts in support of his claim of actual
injury and that Christopher requires him to show that his pending or prior cases
were nonfrivolous. Stover has met neither requirement.
             We agree with the Department. Stover’s mandamus action alleges
that he lost two court cases and has actions pending. Petition, ¶¶ 9, 11. The
petition offers no information about the cases, i.e., that they were or are
“nonfrivolous” or “arguable.” Christopher, 536 U.S. at 415. The subject of the
cases is unknown. They may or may not relate to the conditions of Stover’s
confinement or his sentence. They may be personal claims. Corrections Center is
not required to provide resources necessary to pursue every type of legal action.
Lewis, 518 U.S. at 355. Finally, Stover’s petition does not plead facts sufficient to
permit the inference that inadequate legal resources contributed to the dismissal of
the two prior cases. In sum, Stover’s petition does not aver facts showing that his
court cases were not frivolous; involved his sentence or prison conditions; and
were adversely affected by a lack of legal resources. As such, the petition does not
state a cause of action upon which relief can be granted.
             For the reasons set forth above, the Department’s preliminary
objection to jurisdiction is overruled and its preliminary objection in the nature of a
demurrer is sustained. Accordingly, Stover’s petition for a writ of mandamus is
dismissed.

                                    ______________________________________
                                    MARY HANNAH LEAVITT, President Judge




                                          10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jason Robert Stover,                    :
                  Petitioner            :
                                        :
            v.                          : No. 311 M.D. 2015
                                        :
Progress Community Corrections          :
Center, Waynesburg, PA,                 :
                 Respondent             :

                                    ORDER

            AND NOW, this 8th day of June, 2016, the preliminary objections
filed by the Department of Corrections are OVERRULED as to this Court’s
jurisdiction and SUSTAINED for failure of Petitioner Jason Robert Stover to state
a valid cause of action.       Petitioner’s petition for a writ of mandamus is
DISMISSED.
                                   ______________________________________
                                   MARY HANNAH LEAVITT, President Judge
