          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shawn Freemore,                           :
                          Petitioner      :
                                          :
             v.                           :   No. 489 M.D. 2019
                                          :   Submitted: January 10, 2020
Department of Corrections,                ;
                        Respondent        :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                     FILED: May 6, 2020
             Before this Court are the preliminary objections in the nature of a
demurrer filed by the Pennsylvania Department of Corrections (Department) to a
petition for review filed pro se by Shawn Freemore in this Court’s original
jurisdiction. For the reasons that follow, we sustain the Department’s preliminary
objections and dismiss Freemore’s petition for review.
             At the time he filed the subject petition for review, Freemore was
incarcerated at the State Correctional Institution (SCI) at Houtzdale. The petition
avers that the Department created a security processing center (Center) to check mail
and publications “for drugs,” which is operated without direction from a Department
policy or procedure. Petition ¶1. Certain publications expected by Freemore were
delayed “by weeks and months, or mysteriously never [] delivered.” Petition ¶2.
Freemore asserts that the Department’s failure to have a policy to govern the Center
is a violation of his rights guaranteed under the First Amendment to the United States
Constitution,1 his due process rights, and “the laws of this Commonwealth requiring
the [Department] to have policy backed by law.” Petition ¶9. Freemore contends
that the Center’s operation is not rationally connected to a legitimate government
interest because drugs are not “entering the prison through publications coming
directly from the publishers.” Petition ¶12. A “ready alternative,” according to
Freemore, is to let each SCI facility process mail, as it did before the Center was
created. Petition ¶15.
               Freemore claims that he has exhausted the administrative remedies
available through the Department. He requests this Court to order the Department
to “cease and desist use of the [Center] and return to previous operational procedures
of sending publications directly to the SCI facility” or create a policy “to include
concrete and prompt timeframes” for processing publications at the Center. Petition
¶17.
               The Department filed preliminary objections seeking a dismissal of
Freemore’s petition on the basis of legal insufficiency of the pleading (demurrer).2
The Department asserts that the petition did not aver how the loss or delay of
publications infringed upon Freemore’s constitutional rights.                 The Department
asserts that it is not required to develop a written policy on the Center’s operations.
Even so, a policy does not create enforceable rights.
               In ruling on preliminary objections, we accept as true all well-pleaded
material allegations in the petition for review and any reasonable inferences that we
may draw from the averments. Meier v. Maleski, 648 A.2d 595, 600 (Pa. Cmwlth.

1
  It states in pertinent part: “Congress shall make no law … abridging the freedom of speech, or of
the press….” U.S. CONST. amend. I.
2
  Pennsylvania Rule of Civil Procedure No. 1028(a)(4) provides that “[p]reliminary objections
may be filed by any party to any pleading and are limited to the following grounds: … legal
insufficiency of a pleading (demurrer)[.]” PA. R.C.P. NO. 1028(a)(4).
                                                2
1994). The Court, however, is not bound by legal conclusions, unwarranted
inferences from facts, argumentative allegations, or expressions of opinion
encompassed in the petition for review. Id. We may sustain preliminary objections
only when the law makes clear that the petitioner cannot succeed on the claim, and
we must resolve any doubt in favor of the petitioner. Id. “We review preliminary
objections in the nature of a demurrer under the above guidelines and may sustain a
demurrer only when a petitioner has failed to state a claim for which relief may be
granted.” Armstrong County Memorial Hospital v. Department of Public Welfare,
67 A.3d 160, 170 (Pa. Cmwlth. 2013).
             In determining whether the petition states a constitutional claim, we
look first to see whether the inmate has alleged an infringement of a constitutional
right. Brown v. Pennsylvania Department of Corrections, 932 A.2d 316, 318 (Pa.
Cmwlth. 2007). If so, we then determine whether that infringement “rises to the
level of a constitutional violation, given the specialized standard of review applied
to prison regulations and practices.” Id.
             An inmate “retains those First Amendment rights that are not
inconsistent with his status as a prisoner or with the legitimate penological objectives
of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). “[W]hen
a prison regulation impinges on inmates’ constitutional rights, the regulation is valid
if it is reasonably related to legitimate penological interests.” Smith v. Beard, 26
A.3d 551, 557 (Pa. Cmwlth. 2011) (quoting Turner v. Safley, 482 U.S. 78, 84-85
(1987)). We are mindful that courts “must accord substantial deference to the
professional judgment of prison administrators, who bear a significant responsibility
for defining the legitimate goals of a corrections system and for determining the most




                                            3
appropriate means to accomplish them.” Smith, 26 A.3d at 557 (quoting Overton v.
Bazzetta, 539 U.S. 126, 132 (2003)).
             The   Department     has    promulgated     a    regulation   on   inmate
correspondence. It provides, in pertinent part, as follows:

             (g) Incoming Publications.

                   (1) A publication review committee consisting of
                   staff designated by and reporting to the facility
                   manager or a designee shall determine whether an
                   inmate may receive a publication.

                   (2) Publications shall be received directly from a
                   publisher, bookstore, book club, distributor or
                   department store. Newspapers shall be mailed
                   directly from the publisher.

                   (3) Publications may not be received by an inmate
                   if they:

                          (i) Contain information regarding
                          the manufacture of explosives,
                          incendiaries, weapons, escape devices,
                          poisons, drugs or intoxicating
                          beverages or other contraband.

                          (ii) Advocate, assist or are evidence
                          of     criminal    activity,    inmate
                          misconduct, violence, insurrection or
                          guerrilla    warfare    against    the
                          government.

                          (iii) Threaten the security of a facility.

                          (iv) Contain nudity, obscene material
                          or explicit sexual materials as defined
                          in subsection (i).




                                          4
                          (v) Constitute a bulk mailing
                          specifically intended for the purpose of
                          advertising or selling merchandise.

37 Pa. Code §93.2(g). The Department’s regulation does not guarantee inmates free
access to publications; rather, a publication review committee determines whether
an inmate may receive a publication. 37 Pa. Code §93.2(g)(1).
             Given the factual averments in Freemore’s petition, we agree with the
Department that they do not state a constitutional claim. The petition avers that
Freemore’s publications have been delayed and at times not delivered after the
Department began to process publications at the Center. However, the petition does
not identify the specific types of publications that the Department did not deliver to
Freemore. Certain publications listed in 37 Pa. Code §93.2(g)(3) may not be
accessible to an inmate. Freemore’s petition does not allege that the Department, in
processing the incoming publications at the Center, has failed to follow its
regulations or that the regulations have violated Freemore’s constitutional rights.
             We conclude that the petition does not assert specific facts that would
raise a legally sufficient constitutional or statutory claim. As such, we sustain the
Department’s preliminary objections to the petition.

                                          _______________________________
                                          Mary Hannah Leavitt, President Judge




                                          5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shawn Freemore,                         :
                        Petitioner      :
                                        :
            v.                          :   No. 489 M.D. 2019
                                        :
Department of Corrections,              :
                        Respondent      :


                                     OR DER

            AND NOW, this 6th day of May, 2020, it is ordered that the preliminary
objections in the nature of a demurrer, filed by the Pennsylvania Department of
Corrections in the above-captioned matter, are hereby SUSTAINED and Petitioner
Shawn Freemore’s petition for review is DISMISSED WITH PREJUDICE.

                                            ______________________________
                                            Mary Hannah Leavitt, President Judge
