Pew v. Miller
| Decision Date | 07 March 2023 |
| Docket Number | 27 C.D. 2022 |
| Parties | Alfonso Percy Pew, Appellant v. Timothy Miller, David Radziewics, Lt. Lytle, Deputy Houser, Deputy Rivello, Capt. Andrews, Supt. Garman, Lt. Sherman, John Doe 1, CO 1, and John Doe 2, CO 1 |
| Court | Pennsylvania Commonwealth Court |
Alfonso Percy Pew (Pew) appeals, pro se, from the Centre County Common Pleas Court's (trial court) December 21, 2021 order that overruled in part and sustained in part Preliminary Objections to Pew's Complaint filed by Prison Rape Elimination Act (PREA)[1] compliance manager Timothy Miller (Miller), PREA coordinator David Radziewics (Radziewics) Lieutenant Lytle, Deputy Houser, Deputy Rivello, Captain Andrews, Superintendent Garman, Lieutenant Sherman Corrections Officer 1 (CO1) John Doe 1, and CO1 John Doe 2 (collectively, Appellees), and dismissed Pew's Complaint.[2] Pew presents four issues for this Court's review: whether the trial court erred by concluding that Pew failed to state valid causes of action under: (1) the Eighth Amendment to the United States (U.S.) Constitution (Eighth Amendment);[3] (2) the First Amendment to the U.S. Constitution (First Amendment);[4] (3) article I, sections 13, 20, and 26 of the Pennsylvania Constitution;[5] and (4) the Americans with Disabilities Act (ADA).[6]After review, this Court affirms.
Background[7]
Pew is an inmate currently incarcerated at the State Correctional Institution (SCI) at Phoenix, who has been diagnosed with a serious mental illness (SMI) and is a D Roster inmate.[8] See Original Record (O.R.) Item 1 (Complaint) ¶¶ 2, 23. Appellees are Department of Corrections (Department) employees and/or prison officials at SCI-Rockview who were generally responsible for Pew's care and are specifically responsible for protecting him from sexual abuse. See Complaint ¶¶ 3-10.
In November 2020, while Pew was incarcerated at SCI-Rockview, PREA manager Miller and PREA coordinator Radziewics were aware that, in October 2020, Pew had reported to the Pennsylvania Office of Inspector General that SCI-Rockview prison officials were covering up PREA complaints and bribing indigent inmates to sign off on complaints. See Complaint ¶¶ 19-20; see also Complaint Exs. F, G. On December 24, 2020, Pew filed an Inmate Request to Staff Member claiming PREA retaliation on December 17 and 23, 2020. See Complaint Ex. G. In a December 30, 2020 response, Pew was notified that the form had been forwarded to security. See id.
In January 2021, CO1 John Doe 1 and CO1 John Doe 2 circulated rumors among SCI-Rockview inmates and other corrections officers that Pew "rapes little kids" and is a "child molester." Complaint ¶ 11; see also Complaint ¶ 12. On January 29, 2021, Pew filed Grievance No. 913568 lodging a PREA complaint alleging sexual harassment and seeking a cell change and protection in the form of "hand[-]held cameras for all escorts [to meals, showers, and groups,] due to [his] life being in danger." See Complaint ¶ 15; see also Complaint ¶¶ 13, 25 and Complaint Exs. A-C, G. In particular, Pew felt he was in imminent danger of being attacked by the inmate in an adjoining cell. See Complaint ¶ 25. Appellees failed to investigate Pew's PREA complaints, and denied his protection requests. See Complaint ¶¶ 13-17, 25; see also Complaint Ex. D. On January 31, 2021, Pew filed Grievance No. 913042, making a PREA retaliation complaint, claiming that Appellees retaliated against him by denying him weekly use of the email kiosk and withholding his personal television. See Complaint ¶¶ 18-24; see also Complaint Exs. E-I.
On May 11, 2021, Pew filed an Inmate Request to Staff Member seeking a response to Grievance No. 913568, and mentioned his concern for his safety. See Complaint ¶ 17; see also Complaint Ex. D. On May 14, 2021, SCI-Rockview staff responded: "This allegation was a single incident of sexual harassment that has been tracked but not investigated." Complaint Ex. D. Also on May 11, 2021, Pew filed an Inmate Request to Staff Member seeking a response to Grievance No. 913042, again referring to his fear for his safety. See Complaint ¶ 22; see also Complaint Ex. I. On May 14, 2021, SCI-Rockview staff answered that Pew's "allegations of retaliation were investigated . . . and were deemed to be unfounded." Complaint Ex. I.
On June 3, 2021, Pew filed the Complaint in the trial court (Docket No. 2021-1264) pursuant to Section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983 (Section 1983),[9] seeking declaratory and injunctive relief and compensatory and punitive damages on the basis that Appellees violated his rights under the First, Eighth, and Fourteenth Amendments (Fourteenth Amendment) to the U.S. Constitution,[10] article I, sections 13, 20, and 26 of the Pennsylvania Constitution, and the ADA by refusing to investigate his sexual harassment claims and by retaliating against him for making those claims. See Complaint at 9-10. Also on June 3, 2021, Pew filed an Application for Leave to Proceed In Forma Pauperis, which the trial court granted. See O.R. Items 2, 4.[11] On July 14, 2021, Appellees filed the Preliminary Objections, raising the following demurrers: (1) the Complaint should be dismissed under the three strikes provision in Section 6602(f)(1) of the statute commonly known as the Prison Litigation Reform Act, 42 Pa.C.S. § 6602(f)(1) (three strikes rule) (First Preliminary Objection); (2) Pew failed to allege sufficient facts to establish Appellees' personal involvement in the alleged wrongdoing (Second Preliminary Objection); (3) Pew failed to state a valid claim for injunctive relief (Third Preliminary Objection); (4) Pew failed to state a valid Eighth Amendment claim (Fourth Preliminary Objection); (5) Pew failed to state a valid First Amendment retaliation claim (Fifth Preliminary Objection); (6) Pew failed to state a valid Pennsylvania Constitution violation claim (Sixth Preliminary Objection); and (7) Pew failed to state a valid ADA claim (Seventh Preliminary Objection). See O.R. Item 5 (Preliminary Objections). On August 4, 2021, Pew opposed the Preliminary Objections. See O.R. Item 7.
On December 21, 2021, the trial court overruled the First, Second, and Third Preliminary Objections, concluding that Pew's Complaint did not violate the three strikes rule, and Pew alleged sufficient facts to establish Appellees' personal involvement in the alleged wrongdoing and for injunctive relief. See O.R. Item 13 (Trial Ct. Op.). The trial court sustained the Fourth, Fifth, Sixth, and Seventh Preliminary Objections. See id. Because the trial court sustained the Preliminary Objections to Pew's substantive claims, it dismissed Pew's Complaint on the basis that "[Pew] fail[ed] to state any viable claim of a federal constitutional or statutory violation that could serve as the predicate for a [Section] 1983 claim in any event."[12]See id. at 3. On January 6, 2022, Pew appealed to this Court.[13]
On January 26, 2022, the trial court ordered Pew to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure (Rule) 1925(b), which he did on February 10, 2022. See O.R. Items 15, 16. On February 14, 2022, the trial court filed a Statement pursuant to Rule 1925(a), adopting its December 21, 2021 opinion. See O.R. Item 17.
Stilp v. Gen. Assembly, . . . 974 A.2d 491, 494 ([Pa.] 2009) (citations omitted). Thus, we will affirm a trial court's order sustaining preliminary objections and dismissal of a complaint "only in cases that are clear and free from doubt that the law will not permit recovery" by the appellant. Cap. City Lodge No. 12, Fraternal Ord. of Police v. City of Harrisburg . . . 588 A.2d 584, 586-87 . In ruling on preliminary objections in the nature of a demurrer, this Court accepts as true all well-pleaded facts in the complaint and draws all inferences reasonably deducible therefrom in favor of the nonmoving party. Stone & Edwards Ins. Agency, Inc. v. Dep't of Ins., . . . 616 A.2d 1060, 1063 . However, we "need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion." Id. . . . And, in the face of doubt, our resolution should be in favor of reversing the grant of the demurrer. Vasquez v. Berks Cnty., 279 A.3d 59, 75-76 (Pa. Cmwlth. 2022).
"When ruling on a demurrer, a court must confine its analysis to the complaint." Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010). "Thus, the court may determine only whether, on the basis of the plaintiff's allegations, he or she possesses a cause of action recognized at law." Fraternal Ord. of Police Lodge No. 5, by McNesby v. City of Phila., 267 A.3d 531, 541 (Pa. Cmwlth. 2021). "[D]ocuments attached as exhibits [and] documents referenced in the complaint, as well as facts already of record[,] may also be considered." Id. at 542.
Pew first argues that the trial court erred by concluding that he failed to state a valid cause of action under the Eighth Amendment.[14]
Initially . . . ...
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