Shore v. Pa. Dep't of Corr.

• Decision Date: 31 July 2017
• Docket Number: No. 653 M.D. 2016,653 M.D. 2016
• Citation: 168 A.3d 374
• Parties: Brian SHORE, Petitioner v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Respondent
• Court: Pennsylvania Commonwealth Court

168 A.3d 374

Brian SHORE, Petitioner

v.PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Respondent

No. 653 M.D. 2016

Commonwealth Court of Pennsylvania.

Submitted on Briefs March 31, 2017

Decided July 31, 2017

Brian Shore, petitioner, pro se.

Abby N. Trovinger, Mechanicsburg, for respondent.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY JUDGE McCULLOUGH

Before the Court in our original jurisdiction are the preliminary objections filed by the Department of Corrections (Department) to the petition for review (Petition) filed by Brian Shore. We grant the Department's objections and dismiss Shore's Petition.

Background

On November 21, 2016, Shore, an inmate at the State Correctional Institution at Albion (SCI–Albion), filed his Petition against the Department, alleging that the procedure used by prison officials to deny him access to photographs sent through the mail was unconstitutional. Specifically, Shore averred that on June 14, 2016, SCI–Albion's mailroom issued him three notification forms, advising that a total of forty-three photographs were being withheld for violating section 3.3.c of Department policy DC–ADM 803, currently promulgated and codified at 37 Pa.Code § 93.2(g)(3)(iv), both of which prohibit inmates from possessing publications containing "nudity."¹ (Petition, ¶¶ 1, 5–6.)

Shore stated that, after receiving the notifications, he initiated the Department's internal grievance procedure on June 20, 2016,² claiming that the photographs did not meet the definition of "nudity" and therefore SCI–Albion could not confiscate them. On August 18, 2016, SCI–Albion's Superintendent reviewed Shore's grievances and denied them, finding that the photos contained "nudity and exposed genitalia." (Petition, ¶ 5) (quoting Ex. C). On August 29, 2016, Shore appealed to the Office of Policy, Grants, and Legislative Affairs. On October 17, 2016, the Department's Chief Grievance Officer denied Shore's final appeal in the grievance process, concluding that contrary to Shore's contention, the photographs showed "nudity in the form of bare breasts, vaginal and anal areas." (Petition, ¶ 6) (quoting Ex. D).

In the Petition, Shore argues that the photographs are outside the scope of DC–ADM 803 and that the grievance adjudicators denied him possession based upon their own "individualized benchmarks of morality." (Petition, ¶ 12). Shore further contends that the time in which it took the Superintendent and the Chief Grievance Officer to decide his grievances, 56 and 35 days, respectively, contravened the 15–day and 30–day time limitations in DC–ADM 804. Finally, Shore asserts that the Department's procedure to review incoming mail is "inherently unfair" because, during the initial review and grievance process, he was not "permitted to physically view the publication," i.e., the photographs. (Petition, ¶¶ 8–10, 13).

Based upon these allegations, Shore asserts constitutional claims against the Department "as the sole respondent in this case," (Petition, ¶ 3), opting not to sue any employees in either their individual or official capacity. In terms of his cause of action, Shore maintains that the Department violated his First Amendment and Fourteenth Amendment procedural due process rights. For relief, he seeks a decree stating that the Department's procedure to review incoming mail is unconstitutional; compensatory damages in the form of losses incurred; an order in mandamus requiring SCI–Albion to return the photographs; and an order requiring the Department to implement a new grievance procedure in which an inmate is afforded the opportunity "to physically review the publication ... and present oral argument." Id. at Wherefore Clause, ¶¶ 1–4.

On December 5, 2016, the Department filed preliminary objections in the nature of a demurrer and Shore thereafter filed a reply. The parties then filed briefs in support of and opposition to the preliminary objections and the matter is now ripe for disposition.

Discussion

In ruling on preliminary objections in the nature of a demurrer, the Court must accept as true all well-pleaded material facts and all inferences reasonably deducible therefrom. Barndt v. Pennsylvania Department of Corrections , 902 A.2d 589, 592 (Pa. Cmwlth. 2006). However, the Court is not required to accept as true legal conclusions, unwarranted factual inferences, argumentative allegations, or expressions of opinion. Armstrong County Memorial Hospital v. Department of Public Welfare , 67 A.3d 160, 170 (Pa. Cmwlth. 2013) (en banc).

First Amendment

In his filings, Shore contends that he has alleged a viable First Amendment claim because the photographs do not depict nudity. Although Shore concedes, somewhat ambiguously, that the case law holds that DC–ADM 803 and 37 Pa.Code § 93.2 do not run afoul of the First Amendment, he contends that he has "a constitutional right to receive non-nude photographs sent to him," (Shore's brief at 9), and claims that the Superintendent and the Chief Grievance Officer erred, as a matter of fact, in denying his grievances.

"[T]he First Amendment to the United States Constitution has long been interpreted by the courts as including a general right to communicate by mail." Bussinger v. Department of Corrections , 29 A.3d 79, 84 (Pa. Cmwlth. 2011). This right, however, does not come without qualifications and circumscription, especially in the prison context. To be sure, inmates do not have an absolute right to acquire and keep any property they desire and the Department is permitted to deprive inmates of property if doing so is reasonably related to a legitimate penological interest. Tho rn burgh v. Abbott, 490 U.S. 401, 414–18, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989) ; see Iseley v. Beard , 841 A.2d 168, 174 (Pa. Cmwlth. 2004).

In Brittain v. Beard , 601 Pa. 409, 974 A.2d 479 (2009), the Pennsylvania Supreme Court determined whether the Department provided sufficient penological justification for then DC–ADM 803–1 to withstand First Amendment scrutiny. Like current DC–ADM 803, then DC–ADM 803–1 prohibited inmates from possessing "nudity" and defined that term in language virtually identical to the present definition contained in 37 Pa.Code § 93.2(i).³ The petitioner in Brittain argued that "DC–ADM 803–1 improperly prohibited inmates from possessing materials depicting mere nudity, including artwork, drawings, photographs, and Playboy Magazine, without any legitimate penological purpose." 974 A.2d at 481. In response, the Department set forth what it contended to be a valid, rational connection between the policy and legitimate governmental interests. Specifically, the Department asserted that the prohibition on pornographic material serves to foster the rehabilitation of inmates; is consistent with inmate treatment objectives; discourages inmates from objectifying persons; and minimizes the risk of inappropriate, sexual behavior. Ultimately, our Supreme Court concluded that these reasons advanced legitimate penological interests, and because the petitioner failed to prove that the proffered reasons and goals were unreasonable, upheld the constitutionality of DC–ADM 803–1 against a First Amendment challenge.

In Smith v. Beard , 26 A.3d 551 (Pa. Cmwlth. 2011), the petitioner filed a petition for review in the nature of a class action challenging the validity of current DC–ADM 803 and its promulgated form as a regulation located at 37 Pa.Code § 93.2. The petitioner in Smith contended that the policy was "overbroad and vague in violation of his First and Fourteenth Amendment rights" and "discriminatorily permits commercial pornography in a piecemeal fashion by permitting magazines and books such as Maxim, Curves, and the Bible, but denying access to Playboy ...." 26 A.3d at 555. The petitioner also averred that Playboy magazine possesses serious literary, political, and artistic value and that prohibiting possession of that publication is not reasonably related to any goal of rehabilitation. This Court, however, disagreed. Relying predominately on Brittain , we concluded that the petitioner's allegations "do not include the specific facts necessary to disprove the penological interests asserted by the Department," 26 A.3d at 559, and reaffirmed that the policy's ban on the possession of nudity did not run afoul of the First Amendment.

Pursuant to Brittain and Smith , DC–ADM 803 and 37 Pa.Code § 93.2 are facially constitutional for purposes of the First Amendment and, like the petitioners in those cases, Shore does not allege any specific facts that tend to undermine the Department's legitimate penological interests. In his answer to the Department's preliminary objections, Shore candidly admits that the policy "rightly restricts inmates' First Amendment right to receive and possess nudity," but contends that "DC–ADM 803 does not limit inmates' First Amendment right to receive and possess non-nude photographs ...." (Answer, ¶ 4.) In this vein, Shore argues that he possesses a First Amendment right to receive non-nude photographs; the photographs do not contain nudity; and in an apparent backtrack from the allegations in his Petition, "highlights his continued right ... to receive and possess non-nude photographs exclusively to evidence the cognizable [nature] of his due process claim ...." Id. ¶ 6.

While it is unclear whether Shore has abandoned a claim based on First Amendment principles, he generally advances the argument that the Chief Grievance Officer erred in determining that the photographs depict nudity as a matter of fact and thereby applied DC–ADM–803 and 37 Pa.Code § 93.2 in an unconstitutional manner. (See Shore's brief at 10–11.)⁴ However, to the extent Shore makes such a contention, the case law dictates that this Court lacks jurisdiction to review the factual findings and/or legal conclusions of the Chief Grievance Officer with respect to her denial of Shore's grievances. See, e.g., Bronson v....