                    IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bray Jibril Murray,                   :
                        Petitioner    :
                                      :
                  v.                  :
                                      :
Secretary John Wetzel; Superintendent :
Mahally; Hearing Examiner C.J.        :
McKeown; and Lieutenant Corbett,      :               No. 542 M.D. 2017
                        Respondents :                 Submitted: April 6, 2018


BEFORE:           HONORABLE RENÉE COHN JUBELIRER, Judge
                  HONORABLE ANNE E. COVEY, Judge
                  HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                           FILED: August 8, 2018

                  Before this Court are the preliminary objections (Preliminary
Objections) of the Pennsylvania Department of Corrections’ (Department) Secretary
John Wetzel (Secretary Wetzel), State Correctional Institution (SCI) at Dallas
Superintendent Lawrence Mahally (Superintendent Mahally), Hearing Examiner C.J.
McKeown (Hearing Examiner McKeown) and Lieutenant Corbett1 (collectively,
Respondents) to Bray Jibril Murray’s (Murray) pro se petition for review in the
nature of a complaint for declaratory judgment, mandamus relief and compensatory
and punitive damages (Petition) filed in this Court’s original jurisdiction.2

         1
             The parties did not list Lieutenant Corbett’s full name in the documents filed with this
Court.
         2
             Murray states in his Petition: “ALL DEFENDANTS ARE BEING SUED IN THEIR OFFICIAL AND
INDIVIDUAL CAPACITIES, AS [DEPARTMENT] EMPLOYEES[] WHO, AT ALL TIMES, ACTED UNDER THE
COLOR OF STATE LAW, TO DEPRIVE [MURRAY] OF HIS CONSTITUTIONAL RIGHTS, IN VIOLATION OF
THE FEDERAL STATUTE,       [Section 1983 of the United States Code,] 42 U.S.C. § 1983 [(Section
1983)][.]” Petition at 2. Section 1983 provides, in relevant part:
                                            Background
               Murray is an inmate currently incarcerated at SCI-Dallas, and
Respondents are Department employees.                   Until August 30, 2016, Murray was
incarcerated at SCI-Benner. On March 6, 2017, Murray filed a complaint in the
Luzerne County Common Pleas Court (common pleas court) asserting that, on
August 3, 2016, while at SCI-Benner, prison staff alleged he had engaged in
misconduct, issued a misconduct report3 charging him, inter alia, with threatening
staff and immediately placed him in the Restricted Housing Unit (RHU). Murray
further avers that, on August 16, 2016, a Department Hearing Examiner found him
guilty of misconduct and ordered him to spend 30 days in disciplinary custody in the
RHU (August 16, 2016 Decision). Murray appealed from the August 16, 2016
Decision to SCI-Benner’s Program Review Committee (PRC), arguing that the
Hearing Examiner had improperly precluded Murray’s witnesses from testifying


               Every person who, under color of any statute, ordinance, regulation,
               custom, or usage, of any [s]tate . . . , subjects, or causes to be
               subjected, any citizen of the United States . . . 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[.] . . .
42 U.S.C. § 1983.
        “[T]he Eleventh Amendment to the United States Constitution shields states and state
officials acting in their official capacity from Section 1983 actions.” Heinly v. Commonwealth, 621
A.2d 1212, 1214 n.2 (Pa. Cmwlth. 1993) (citing Will v. Michigan, 491 U.S. 58 (1989)). This Court
has explained that “[a]n action against [a defendant] in his official capacity . . . is the equivalent of
an action against . . . a state instrumentality.” Law v. Fisher, 399 A.2d 453, 456 (Pa. Cmwlth.
1979). Accordingly, state officials sued in their official capacities are not “persons” under Section
1983. See Verrichia v. Dep’t of Revenue, 639 A.2d 957 (Pa. Cmwlth. 1994). Notwithstanding, “a
state official in his or her official capacity, when sued for injunctive relief, would be a person under
[Section] 1983 because official-capacity actions for prospective relief are not treated as an action
against the state.” Verrichia, 639 A.2d at 962 n.11 (citing Will). Further, “state officials are
‘persons’ under Section 1983 and as such, may be sued in their individual capacities and found
liable for damages for violating protected rights while in the course of their employment.” Schnupp
v. Port Auth. of Allegheny Cty., 710 A.2d 1235, 1238 n.4 (Pa. Cmwlth. 1998) (emphasis added)
(citing Hafer v. Melo, 502 U.S. 21 (1991)).
        3
          Murray identifies the report for the incident as Misconduct Report #939593.
                                                   2
despite Murray’s timely submission of a witness request form. Murray alleges in the
Petition that the PRC remanded the matter for a rehearing but, before a new hearing
could be held, Murray was transferred to SCI-Dallas on August 30, 2016.
             Murray also claims in the Petition that, despite SCI-Dallas’ PRC finding
that Murray had completed the 30-day disciplinary sanction for the August 2016
misconduct, upon his arrival at SCI-Dallas, he was immediately placed in disciplinary
custody in the facility’s RHU, the K-Unit (K-Unit). Further, Murray alleges in the
Petition that a different hearing examiner - Hearing Examiner McKeown - conducted
a second hearing on the same reported August 2016 misconduct, and notwithstanding
that (1) the PRC found he had completed the 30-day sanction, (2) Murray’s timely-
requested witnesses were still at SCI-Benner and were not permitted to testify, and
(3) video evidence was purportedly unavailable, the hearing proceeded and Murray
was required to serve 60 days in disciplinary custody in the K-Unit. Murray also
avers in the Petition that his appeal therefrom was denied.
             Moreover, Murray claims in the Petition that supervisory Respondents
Secretary Wetzel, Superintendent Mahally and Lieutenant Corbett subjected him to
cruel and unusual punishment and/or were deliberately indifferent to his confinement
conditions by housing him in a K-Unit cell without proper ventilation and without an
in-cell emergency medical alert system, which violated his rights under the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution
(Equal Protection Clause). Specifically, Murray avers in the Petition that the K-Unit
cells are approximately seven feet by twelve feet, do not have windows to the outside,
have only small windows in the cell doors, and do not have central air conditioning.
Murray further asserts in the Petition that, on August 30, 2016, while the outside
temperature was approximately 90 degrees, he was placed in a K-Unit cell with a
Plexiglas screen covering the cell door window which prevented cool air circulation
into the cell from the open windows and fans in the K-Unit’s corridors. In addition,
                                           3
he sets forth in the Petition that he remained in the K-Unit cell from August 30, 2016
until September 22, 2016, during which time the outdoor temperature was extremely
high, and large fluorescent lights and a small 60-watt, staff-controlled light remained
on from 6 a.m. until 10:30 p.m. Murray claims that the high temperature, lack of
ventilation, and continuous use of “intensely hot” cell lighting that inhibited his sleep
and increased the cell temperature constituted cruel and unusual punishment. Petition
at 3, ¶27. Murray also alleges in his Petition that he experienced extreme heat
exhaustion and chronic fatigue and, on several occasions, blacked out or lost
consciousness, but was unable to notify staff because the cells in the K-Unit lack in-
cell emergency medical alert buttons.4
              Further, Murray avers in the Petition that, although he sent “request
slips” complaining about the conditions in his cell and seeking a transfer to a cell
without a Plexiglas screen over the window, no staff responded to the requests. In
addition, Murray maintains that because all other SCIs have in-cell emergency
medical alert systems, the similarly-situated inmates in SCI-Dallas have been subject
to discrimination in violation of the Equal Protection Clause.5                    Murray seeks
declaratory relief, preliminary and permanent injunctive relief, and compensatory and
punitive damages.
              On July 31, 2017, the common pleas court transferred the instant matter
to this Court. On November 27, 2017, this Court ordered Respondents to file an
answer or otherwise respond to the Petition within 30 days. On December 27, 2017,
Respondents filed the Preliminary Objections demurring to the Petition, raising 4
issues in support of dismissing the action: (1) Murray failed to assert facts

       4
         Murray avers in his Petition that on one occasion when he lost consciousness, he struck his
head on a table in his cell.
       5
         Murray also avers in his Petition that, although he was entitled to take three showers per
week and to spend one hour outside of his cell each day, Respondents refused to permit him to do
so because he covered the large fluorescent lights in his cell.
                                                 4
demonstrating the personal involvement of Secretary Wetzel, Superintendent Mahally
and Lieutenant Corbett in the alleged deprivation of his constitutional rights; (2) with
respect to the disciplinary hearings6 - (a) to the extent Murray seeks review of the
discipline imposed, such must be dismissed because this Court lacks subject matter
jurisdiction, (b) to the extent Murray alleges a civil rights violation based on
Respondents’ failure to follow Department policies or regulations, the claim must
fail, (c) to the extent that Murray contends he may not be housed in the K-Unit
without explanation, an inmate has no constitutional right to be housed at a particular
level, and (d) Murray’s allegations that he was denied due process when his witnesses
were not permitted to testify at the disciplinary hearing are meritless since a hearing
examiner has discretion to determine relevant evidence and witnesses; (3) Murray has
failed to state a claim that he was subjected to cruel and unusual punishment and
deliberate indifference; and (4) Murray has not stated a viable claim that Respondents
violated the Equal Protection Clause by failing to equip the K-Unit with an in-cell
medical emergency alert system.


                                       Legal Analysis
              Initially,

              [i]n considering preliminary objections, this Court must
              consider as true all the well-pleaded material facts set forth
              in the petitioner’s petition and all reasonable inferences that
              may be drawn from those facts. Preliminary objections
              should be sustained only in cases clear and free from doubt
              that the facts pleaded are legally insufficient to establish a
              right to relief.

Commonwealth ex rel. Smith v. Pa. Dep’t of Corr., 829 A.2d 788, 792 (Pa. Cmwlth.
2003) (citation omitted). “However, unwarranted inferences, conclusions of law,

       6
          Lacking certainty as to exactly what Murray alleges in his Petition with respect to the
disciplinary hearing, Respondents raise several objections.
                                               5
argumentative allegations or expressions of opinion need not be accepted.” Wilson v.
Marrow, 917 A.2d 357, 361 n.3 (Pa. Cmwlth. 2007).


                                First Preliminary Objection
                               Alleged Civil Rights Violation
              In Respondents’ first Preliminary Objection, they aver that claims
against supervisory Respondents Secretary Wetzel, Superintendent Mahally and
Lieutenant Corbett should be dismissed because the Petition does not include any
factual allegations describing their personal participation in the alleged civil rights
violations.    See Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988).                    Murray
responds that the conditions in his K-Unit cell were so harsh that they constituted
cruel and unusual punishment and he timely filed grievances.                     Murray further
contends that Respondents’ failure to address the conditions amounted to deliberate
indifference thereto.7
              In Rode, the Third Circuit Court of Appeals explained:

              A defendant in a civil rights action must have personal
              involvement in the alleged wrongs; liability cannot be
              predicated solely on the operation of respondeat superior.
              Personal involvement can be shown through allegations of
              personal direction or of actual knowledge and acquiescence.
              Allegations of participation or actual knowledge and
              acquiescence, however, must be made with appropriate
              particularity.

Id. at 1207 (citations omitted); see also Horan v. Wetzel (Pa. Cmwlth. No. 1425 C.D.
2013, filed May 28, 2014).8

       7
          Presumably, Murray’s reference to the filed grievances is intended to support his position
that Respondents’ failure to take action amounted to deliberate indifference. Notwithstanding,
Murray does not aver in the Petition that Respondents were aware that he filed the grievances, and
he did not allege facts to show they should have been aware.
        8
          This Court’s unreported memorandum opinions may be cited “for [their] persuasive value,
but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code § 69.414(a).
                                                 6
             The United States Supreme Court has explained that “[a] prison
official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate
violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994).
Further,

             an Eighth Amendment claimant need not show that a prison
             official acted or failed to act believing that harm actually
             would befall an inmate; it is enough that the official acted
             or failed to act despite his knowledge of a substantial risk of
             serious harm. . . . Whether a prison official had the
             requisite knowledge of a substantial risk is a question of
             fact subject to demonstration in the usual ways, including
             inference from circumstantial evidence, cf. [J. Hall, General
             Principles of Criminal Law] 118 [(2d ed. 1960)] (cautioning
             against ‘confusing a mental state with the proof of its
             existence’), and a factfinder may conclude that a prison
             official knew of a substantial risk from the very fact that the
             risk was obvious. Cf. [1 W. LaFave & A. Scott, Substantive
             Criminal Law] § 3.7, p. 335 [(1986)] (‘[I]f the risk is
             obvious, so that a reasonable man would realize it, we
             might well infer that [the defendant] did in fact realize it;
             but the inference cannot be conclusive, for we know that
             people are not always conscious of what reasonable people
             would be conscious of’). For example, if an Eighth
             Amendment plaintiff presents evidence showing that a
             substantial risk of inmate attacks was ‘longstanding,
             pervasive, well-documented, or expressly noted by prison
             officials in the past, and the circumstances suggest that the
             defendant-official being sued had been exposed to
             information concerning the risk and thus ‘must have
             known’ about it, then such evidence could be sufficient to
             permit a trier of fact to find that the defendant-official had
             actual knowledge of the risk.’ Brief for [r]espondents 22.

Farmer, 511 U.S. at 842-43 (italics added; citations omitted).
             More recently, the United States Supreme Court restated that “vicarious
liability is inapplicable to . . . [Section] 1983 suits, [thus,] a plaintiff must plead that
each [g]overnment-official defendant, through the official’s own individual actions,
has violated the United States Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676

                                             7
(2009); see also Bush v. Veach, 1 A.3d 981 (Pa. Cmwlth. 2010) (holding that a prison
superintendent was not legally responsible merely by reviewing the prisoner’s
grievances for the alleged retaliatory acts of his staff against a prisoner, when the
prisoner did not demonstrate the superintendent’s actual knowledge of the
retaliation).
                In West v. Varano (M.D. Pa. No. 1:10-CV-2637, filed Aug. 1, 2013,
adopted August 29, 2013), 2013 U.S. Dist. LEXIS 123882,9 a United States Magistrate
Judge for the Middle District of Pennsylvania considered an Eighth Amendment
action brought against a prison superintendent, explaining:

                [The inmate] names [the prison superintendent] as a
                defendant on his Eighth Amendment deliberate indifference
                claim, but his pleading contains absolutely no factual
                allegations relating to this defendant beyond his assertion
                that the defendant had oversight responsibilities for the
                operation of the prison. In considering claims brought
                against supervisory prison officials arising out of alleged
                constitutional violations, the courts recognize that
                supervisors may be exposed to liability only in certain,
                narrowly defined, circumstances.
                Thus, it is clear that a claim of a constitutional deprivation
                cannot be premised merely on the fact that the named
                defendant was a prison supervisor when the incidents set
                forth in the complaint occurred. Quite the contrary, to state
                a constitutional tort claim the plaintiff must show that the
                supervisory defendants actively deprived him of a right
                secured by the Constitution. Morse v. Lower Merion Sch[.]
                Dist., 132 F.3d 902 (3d Cir. 1997); see also Maine v.
                Thiboutot, 448 U.S. 1 . . . (1980). Constitutional tort
                liability is personal in nature and can only follow personal
                involvement in the alleged wrongful conduct shown
                through specific allegations of personal direction or of

       9
         “‘Generally, decisions of federal district courts and courts of appeals are not binding on
this Court, . . . but they may have persuasive value.’ Unreported federal court decisions may also
have persuasive value.” Nagle v. Trueblue, Inc., 148 A.3d 946, 959 n.15 (Pa. Cmwlth. 2016)
(quoting GGNSC Clarion LP v. Kane, 131 A.3d 1062, 1069 n.15 (Pa. Cmwlth. 2016)).


                                                8
            actual knowledge and acquiescence in the challenged
            practice. Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d
            Cir. 1997).

West, slip op. at __, 2013 U.S. Dist. LEXIS 123882, at *22-*24. Recommending
dismissal of the prison superintendent from the lawsuit, the United States Magistrate
Judge concluded:

            Here, [the inmate] does not allege that [the prison
            superintendent] directed the conduct complained of by the
            plaintiff, or had knowledge of that conduct and acquiesced
            in it. Rather, in the first instance [the inmate] simply
            alleges the superintendent was legally responsible for the
            overall operation of the prison. To the extent that [the
            inmate] premises liability of this particular defendant upon
            the assertion that he was legally responsible for the overall
            operation of the institution, without setting forth any further
            factual basis for a claim against him in the body of this
            pleading, this cursory style of pleading is plainly inadequate
            to state a claim against a prison supervisor and compels
            dismissal of this defendant.

West, slip op. at __, 2013 U.S. Dist. LEXIS 123882, at *22-*26.
            In the instant matter, Murray alleges in his Petition that he was subjected
to cruel and unusual conditions while incarcerated at SCI-Dallas, and that he
repeatedly informed SCI employees. He also contends that he was denied equal
protection of the law by his K-Unit cell not being equipped like other RHUs with in-
cell emergency medical alert systems.
            However, Murray does not aver any facts in his Petition evidencing that
Secretary Wetzel’s individual actions resulted in the objectionable conditions. Nor
does Murray allege that Secretary Wetzel knew or would have reason to know of the
alleged harsh conditions in one particular cell in one of the twenty-six Department
SCIs, or that he was aware the K-Unit lacks an in-cell medical emergency alert
system. In addition, although Superintendent Mahally oversees SCI-Dallas, Murray
alleges no facts demonstrating Superintendent Mahally’s personal involvement in, or

                                          9
his awareness of Murray’s particular confinement conditions, notwithstanding
Murray’s alleged grievances objecting thereto. Murray does not aver in the Petition
that SCI staff responded to the grievances or that any further action was taken
resulting in Superintendent Mahally’s involvement with or knowledge thereof, and
the Petition contains no factual averment describing Superintendent Mahally’s
awareness that there was no in-cell medical emergency alert system. Finally, Murray
does not identify Lieutenant Corbett in the Petition or describe his position at SCI-
Dallas or his specific individual participation in the alleged deprivation of Murray’s
constitutional rights.      Because Murray makes no factual allegations concerning
Respondents Secretary Wetzel, Superintendent Mahally and Lieutenant Corbett’s
personal participation in the alleged civil rights violations, this Court must sustain
Respondents’ first Preliminary Objection.


                              Second Preliminary Objection
                          Alleged Disciplinary Hearing Violation
               Respondents’ second Preliminary Objection challenges Murray’s
disciplinary hearing violation claims. With respect thereto, Murray asserts in the
Petition:

               [Hearing Examiner] McKeown violate[d] the DOUBLE
               JEOPARDY, DUE PROCESS, and WITNESS CLAUSES of the
               FOURTEENTH and SIXTH AMENDMENTS to the United
               States Constitution, when he denied [Murray’s] properly[-
               ]requested defense witnesses to participate in disciplinary
               hearing (and establish a preponderance of evidence in favor
               of not guilty plea); and also, utilizes selfsame evidence (i.e.,
               Misc. report #B939593[10]) in a second disciplinary hearing,
               and impose[d] a second[,] greater sanction.




      10
           It appears that Murray is referencing Misconduct Report #939593.
                                                10
Petition at 3, ¶23.11 He requests this Court to declare that such conduct violated his
constitutional rights, grant a preliminary injunction ordering that Hearing Examiner
McKeown’s employment be suspended, grant a preliminary and permanent injunction
ordering that Hearing Examiner McKeown’s employment be terminated, and award
compensatory and punitive damages.
               Based upon Murray’s factual allegations, statement of claims and prayer
for relief, it appears that in seeking declaratory relief, Murray is also requesting this
Court to declare the outcome of his disciplinary hearing void.12 With respect to
Murray’s challenges to the misconduct determination and his request for declaratory
relief that his constitutional rights were violated thereby, this Court has explained that
“[r]egardless of whether the action was brought as a direct appeal or in this Court’s
original jurisdiction . . . we do not have jurisdiction over [a misconduct
determination].” Edmunson v. Horn, 694 A.2d 1179, 1181 (Pa. Cmwlth. 1997); see
also Bronson v. Cent. Office Review Comm., 721 A.2d 357 (Pa. 1998); Brown v. Pa.
Dep’t of Corr., 913 A.2d 301, 305 (Pa. Cmwlth. 2006) (“This Court and our
Pennsylvania Supreme Court have previously held that [the Department’s] decision
concerning charges of misconduct against an inmate are beyond this Court’s appellate
or original jurisdiction.”).
               Further, in making the general assertion that Hearing Examiner
McKeown violated his due process rights, it is possible to infer that Murray is
claiming that the hearing examiner failed to adhere to Department Regulations
pertaining to witness testimony, or that the hearing examiner’s decision to remove




       11
          Respondents do not address in their Preliminary Objections Murray’s double jeopardy
claim. Thus, that claim, brought solely against Hearing Examiner McKeown, remains.
       12
          Pleadings filed by pro se litigants are liberally construed. See Mueller v. Pa. State Police
Headquarters, 532 A.2d 900 (Pa. Cmwlth. 1987).
                                                 11
him from the general prison population violated due process.13 “[A]n inmate does not
have a viable claim under [Section 1983] based solely on a prison official’s failure to
adhere to a regulation, directive or policy statement.” Yount v. Pa. Dep’t of Corr.,
886 A.2d 1163, 1169 (Pa. Cmwlth. 2005). In addition, Respondents correctly assert
that if Murray is claiming a due process right to remain in the general population,
such claim must fail since this Court has long recognized that “remaining in a
prison’s general population is not a protected liberty interest.” Chem v. Horn, 725
A.2d 226, 229 (Pa. Cmwlth. 1999) (citing Sandin v. Conner, 515 U.S. 472 (1995)).
Therefore, this Court sustains Respondents’ second Preliminary Objection insofar as
Murray seeks to invalidate the outcome of his disciplinary hearing, asserts a due
process violation on the hearing examiner’s alleged failure to adhere to Department
Regulations, and/or claims a due process right to remain in the general prison
population.
               Respondents also contend in their second Preliminary Objection that
Hearing Examiner McKeown acted within his authority in denying Murray’s witness
requests.      Recently, in Curtis v. Canino (Pa. Cmwlth. No. 160 M.D. 2015, filed
March 6, 2017), this Court overruled a Department hearing examiner’s preliminary
objections based on a similar claim. Therein, this Court explained:

               Petitioner also claims that [the Department’s hearing
               examiner] violated his due process rights by denying his
               request to call two witnesses without any valid reason. In
               Wolff v. McDonnell, 418 U.S. 539 (1974), the United States
               Supreme Court explained that while the procedural due
               process rights of an inmate in prison disciplinary
               proceedings are limited, the inmate does retain certain
               protections. Among these due process protections afforded
               to the inmate is the right to call witnesses and present
               documentary evidence in his defense, when permitting him

       13
          The Department’s Regulations require the Department to establish and maintain written
procedures pertaining to inmate discipline which include the “[o]pportunity for the inmate to tell his
story and to present relevant evidence.” 37 Pa. Code § 93.10 (b)(3).
                                                 12
             to do so would not be unduly hazardous to institutional
             safety or correctional goals. The Court explained in Wolff
             that the inmate does not have an unrestricted right to call
             witnesses and that any analysis into whether due process
             was given to the inmate requires the reviewing court to
             balance the rights of the inmate with the flexibility and
             discretion that is required for prison officials to administer
             prison affairs ‘without being subject to unduly crippling
             constitutional impediments.’ [Id.] at 566-67.
             Petitioner alleges that he submitted the requests four days
             prior to the . . . hearing, that each of these witnesses would
             have given exculpatory testimony and that the witnesses
             were confined on the upper section of the housing unit
             directly adjacent to where the hearing was held. In the
             amended complaint, Petitioner identifies one of the two
             witnesses by name and alleges that this individual was his
             cellmate at the time that the incident that was the subject of
             the misconduct hearing occurred and would have
             corroborated Petitioner’s version of the incident. The
             amended complaint does not contain any allegations
             concerning whether [the hearing examiner] based the
             denials on reasons related to institutional safety or
             correctional goals or whether [the hearing examiner]
             announced any reason for denying Petitioner’s witness
             requests. In the absence of this information, we conclude
             that Petitioner has stated a claim that [the hearing examiner]
             violated his due process rights by denying his requests to
             call two witnesses at the misconduct hearing. Cf. Melton [v.
             Beard], 981 A.2d [361,] 365 & n.4 [(Pa. Cmwlth. 2009)]
             (dismissing inmates’ facial due process challenge to the
             policy . . . that allows a hearing examiner to limit the
             evidence presented by inmates while noting that ‘an abuse
             of the hearing examiner’s discretion [to grant or deny
             requests for witnesses] as applied in a given situation could
             amount to a due process violation’). While we recognize
             that [the Department] was entitled to broad discretion in
             prison administration matters, in the absence of any
             indication that [the hearing examiner] based the decision to
             deny the witnesses for reasons related to institutional
             security and correctional goals we are constrained to
             overrule [the hearing examiner’s] demurrer to this claim.

Curtis, slip op. at 5-7 (citations omitted).


                                               13
             In the instant matter, Murray alleges he made a timely request to present
witnesses before the first disciplinary hearing at SCI-Benner, but the request was
denied. He further contends the PRC agreed he had timely submitted the witness
request form and remanded the matter for a new hearing. Further, Murray asserts that
despite SCI-Dallas’ PRC having concluded he had served the 30-day sanction
imposed in the first hearing, Hearing Examiner McKeown held the disciplinary
hearing on the same alleged misconduct. Murray avers that he re-submitted the
witness request form and that timely-requested witnesses were still available at SCI-
Benner, but Hearing Examiner McKeown arbitrarily denied his witness requests and
imposed disciplinary sanctions.
             Here, as in Curtis, “[t]he [Petition] does not contain any allegations
concerning whether [Hearing Examiner McKeown] based the denials on reasons
related to institutional safety or correctional goals or whether [he] announced any
reason for denying Petitioner’s witness requests.” Id., slip op. at 6. Thus,

             [w]hile we recognize that [the Department] was entitled to
             broad discretion in prison administration matters, in the
             absence of any indication that [the hearing examiner] based
             the decision to deny the witnesses for reasons related to
             institutional security and correctional goals we are
             constrained to overrule [the hearing examiner’s] demurrer
             to this claim.

Id., slip op. at 6-7. For these reasons, this Court overrules Respondents’ second
Preliminary Objection with respect to Murray’s challenge to Hearing Examiner
McKeown’s refusal to permit his witnesses to testify at the disciplinary hearing and
sustains their second Preliminary Objection in all other respects.




                                          14
                          Third Preliminary Objection
        Alleged Cruel and Unusual Punishment or Deliberate Indifference
              Respondents assert in their third Preliminary Objection that Murray
failed to state a claim for cruel and unusual punishment or deliberate indifference.14
This Court has explained:

              Although correctional institutions are by their very nature
              restrictive and even harsh, the Eighth Amendment [to the
              United States Constitution (Eighth Amendment)] requires
              that the conditions of confinement do not include
              ‘unnecessary and wanton’ inflictions of pain that are ‘totally
              without penological justification.’ Rhodes v. Chapman, 452
              U.S. 337, 346 . . . (1981). The United States Supreme
              Court has made clear that the Constitution does not mandate
              comfortable prisons, but ‘having stripped [prisoners] of
              virtually every means of self-protection and foreclosed their
              access to outside aid, the government and its officials are
              not free to let the state of nature take its course.’
              Farmer . . ., . . . 511 U.S. at 833; see also DeShaney v.
              Winnebago C[ty.] Dep[’t] of Soc[.] Serv[s.], 489 U.S. 189,
              199-200 . . . (1989) (‘When the State by the affirmative
              exercise of its power so restrains an individual’s liberty
              that it renders him unable to care for himself, and at the
              same time fails to provide for his basic human needs—
              e.g., food, clothing, shelter, medical care, and reasonable
              safety—it transgresses the substantive limits on state
              action set by the Eighth Amendment and the Due
              Process Clause.’). Prison officials must ensure that
              inmates are not deprived of the ‘minimal civilized measure
              of life’s necessities,’ including food, clothing, shelter,
              sanitation, medical care, and personal safety. Rhodes . . . ,
              452 U.S. at 346 . . . ; see also Farmer . . . , 511 U.S. at 833 .
              . . ; Hutto v. Finney, 437 U.S. 678 . . . (1978).


       14
          Respondents base their Preliminary Objection, in large part, on the misperception that
Murray is alleging a claim founded on deliberate indifference to a prisoner’s serious medical need.
See Respondents Br. at 12-14. However, Murray’s allegations pertain to deliberate indifference to
cruel and unusual confinement conditions. Curiously, the portion of Respondents’ brief supporting
this Preliminary Objection does not address Murray’s allegations relating to oppressive and
excessive heat in his cell.
                                                15
As with an Eighth Amendment claim based on deliberate
indifference to a serious medical need, in order to establish
that prison conditions violate the Eighth Amendment a
prisoner must establish that prison officials were
deliberately indifferent to conditions of confinement that
constitute cruel and unusual punishment. Wilson v.
Seiter, 501 U.S. 294 . . . (1991). In demonstrating that
conditions of confinement are cruel and unusual, a
prisoner may establish that some conditions of
confinement ‘have a mutually enforcing effect that
produces the deprivation of a single, identifiable human
need such as food, warmth, or exercise—for example a
low cell temperature at night combined with a failure to
issue blankets.’ Id., at 305 . . . ; see also Hutto . . . , 437
U.S. [at] 688 . . . (remedial order supported by ‘the
interdependence of the conditions producing the violation’
of the Eighth Amendment ban on cruel and unusual
punishment). . . . [T]he use of [RHUs] or isolation cells
alone has not been held to constitute a violation of the
Eighth Amendment ban on cruel and unusual punishment.
Hutto . . . , 437 U.S. at 685, 687 . . . ; Rivera v. P[a.] Dep[’t]
of Corr[.], . . . 837 A.2d 525 (Pa. Super. 2003) (holding
conditions of confinement in long term segregation unit at
SCI[-]Pittsburgh did not constitute cruel and unusual
punishment).
The Pennsylvania Supreme Court has stated that ‘[j]ust
what constitutes cruel and unusual punishment in the
constitutional sense is a matter which defies concrete
definition.’ Commonwealth ex rel. Bryant v. Hendrick, . . .
280 A.2d 110, 116 ([Pa.] 1971). The Eighth Amendment
seeks to secure the dignity of human beings and it is clear
that the evolving standards of decency from which the
words ‘cruel and unusual’ draw their meaning mandate that
[the p]etitioners’ confinement does not deprive them of the
minimal necessities of life. . . .
Whether or not the adequacy of the conditions of
confinement violates our society’s evolving standards of
decency is a searching inquiry that requires a balancing of
the government’s power to punish and legitimate interest in
the orderly operation of correctional institutions with [a
prisoner’s] right to have [his] confinement be humane and
free from the unnecessary and wanton infliction of pain.
Such an inquiry, by its very nature, requires a careful

                               16
             balancing of the needs and duties of the state with the rights
             of the individual, requires an investigation into what within
             this balance is a reasonable act, and requires, above all, an
             examination of what is and is not a permissible exercise of
             discretion on the part of [the Department].

Tindell v. Dep’t of Corr., 87 A.3d 1029, 1041-42 (Pa. Cmwlth. 2014) (emphasis
added).
             This Court, accepting all allegations as true as we must, has significant
concerns regarding the alleged confinement of a prisoner in a cell with virtually no
ventilation, no air conditioning and continuous high intensity/heat producing lighting
on days when the outside temperature exceeded 90 degrees.            However, for the
reasons set forth in the Court’s discussion concerning Respondents’ first Preliminary
Objection, because Murray makes no factual allegations concerning Respondents
Secretary Wetzel, Superintendent Mahally and Lieutenant Corbett’s personal
participation in the alleged civil rights violation, Respondents’ third Preliminary
Objection is sustained.


                          Fourth Preliminary Objection
                    Alleged Equal Protection Clause Violation
             In their fourth Preliminary Objection, Respondents contend Murray
failed to state a claim that Respondents violated the Equal Protection Clause by
neglecting to equip the K-Unit with an in-cell medical emergency alert system
because other SCIs have such systems.
             In Feigley v. Department of Corrections, 872 A.2d 189 (Pa. Cmwlth
2005), this Court granted the Department’s preliminary objections to a prisoner’s
claim that an SCI’s commissary’s smaller selection and higher prices, as compared to
those of other SCI commissaries, violated the Equal Protection Clause. The Feigley
Court explained:



                                          17
             The [E]qual [P]rotection [C]lause protects an individual
             from state action that selects him out for discriminatory
             treatment by subjecting him to a provision in the law not
             imposed on others of the same class. In Curtis v. Kline, . . .
             666 A.2d 265 ([Pa.] 1995), our Supreme Court discussed
             the principle of equal protection as follows:
                   The essence of the constitutional principle of
                   equal protection under the law is that like
                   persons in like circumstances will be treated
                   similarly. However, it does not require that all
                   persons under all circumstances enjoy identical
                   protection under the law. The right to equal
                   protection under the law does not absolutely
                   prohibit the Commonwealth from classifying
                   individuals for the purpose of receiving
                   different treatment, and does not require equal
                   treatment of people having different needs.
             Id. . . . at 267-68 (citations omitted). So long as a
             classification is reasonable and based upon some ground of
             difference having a fair and substantial relation to the
             objective of the classification so that similarly situated
             individuals are treated alike, it is permissible . . . .

Feigley, 872 A.2d at 195 (quoting Correll v. Dep’t of Transp., Bureau of Driver
Licensing, 726 A.2d 427, 430 (Pa. Cmwlth. 1999), aff’d, 762 A.2d 442 (Pa. 2001)).
The Feigley Court recognized that differences in commissary pricing did not
necessarily occur due to unreasonable classifications of inmates, but could result from
differences in the SCIs’ operations.     Such differences could include “individual
management decisions by the various commissary managers, the overall nature of the
prison population (for example, male or female, largely urban or largely rural,
geriatric or motivational boot camp), or the institution’s location with respect to the
supplier’s locations.” Id.
             Likewise, federal courts have held that prisoners incarcerated at different
state prisons are not similarly[-]situated for purposes of an equal protection claim.
See Williams v. Price, 25 F. Supp. 2d 605, 622 (W.D. Pa. 1997) (“[B]ecause two

                                          18
different prisons are involved, the death row inmates in the two prisons are not
similarly situated for equal protection purposes.”); see also Hayes v. Lightner (M.D.
Pa. No. 4:14-CV-01922, filed October 14, 2015, adopted Nov. 5, 2015); McKeithan
v. Kerestes, (M.D. Pa. No. 1:11-CV-1441, filed May 5, 2014, adopted July 28, 2014).
In the instant case, the lack of an in-cell medical emergency alert system could result
from management decisions deeming such systems unnecessary given other systems
or methods used to monitor prisoners at SCI-Dallas. The law is well-established that:

            Prison officials are afforded a wide range of discretion in
            the promulgation and enforcement of policies to govern
            internal prison operations and must be allowed to exercise
            their judgment and to execute those policies necessary to
            preserve order and maintain security within Pennsylvania’s
            State Correctional Institutions free from judicial
            interference.

Tindell, 87 A.3d at 1035. For this reason, the Court sustains Respondents’ fourth
Preliminary Objection.


                                     Conclusion
            For all of the above reasons, Respondents’ Preliminary Objections are
sustained in part and overruled in part, and Respondents Secretary Wetzel,
Superintendent Mahally and Lieutenant Corbett are dismissed from the action.




                                         ANNE E. COVEY, Judge




                                          19
               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Bray Jibril Murray,                   :
                        Petitioner    :
                                      :
                  v.                  :
                                      :
Secretary John Wetzel; Superintendent :
Mahally; Hearing Examiner C.J.        :
McKeown; and Lieutenant Corbett,      :         No. 542 M.D. 2017
                        Respondents :


                                        ORDER

               AND NOW, this 8th day of August, 2018, the Preliminary Objections of
the Pennsylvania Department of Corrections’ Secretary John Wetzel (Secretary
Wetzel), State Correctional Institution at Dallas Superintendent Lawrence Mahally
(Superintendent Mahally), Hearing Examiner C.J. McKeown (Hearing Examiner
McKeown) and Lieutenant Corbett (collectively, Respondents) are sustained in part
and overruled in part consistent with this opinion, and Respondents Secretary Wetzel,
Superintendent Mahally and Lieutenant Corbett are dismissed from the instant action.
               It is further ordered that within 30 days of the date of this Order, Hearing
Examiner McKeown shall file an answer to the allegations and claims remaining
against him.



                                         ANNE E. COVEY, Judge
