O'Toole v. Pa. Dep't of Corr.

• Decision Date: 16 October 2018
• Docket Number: No. 228 M.D. 2018,228 M.D. 2018
• Citation: 196 A.3d 260
• Parties: Brian O'TOOLE, Petitioner v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Respondent
• Court: Pennsylvania Commonwealth Court

196 A.3d 260

Brian O'TOOLE, Petitioner

v.PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Respondent

No. 228 M.D. 2018

Commonwealth Court of Pennsylvania.

Submitted on Briefs June 22, 2018

Decided October 16, 2018

Brian O'Toole, SCI Fayette, pro se.

Debra Sue Rand, Assistant Counsel, Mechanicsburg, for respondent.

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

OPINION BY JUDGE COVEY

Before this Court are the Pennsylvania Department of Corrections' (Department) preliminary objections in the nature of a demurrer (Preliminary Objections) to Brian O'Toole's (O'Toole) pro se Amended Petition for Review (Petition) in the nature of a complaint in mandamus¹ filed in this Court's original jurisdiction.

Background

O'Toole is incarcerated at the State Correctional Institution (SCI) at Fayette (SCI-Fayette). According to the Petition and the documents attached thereto, on March 26, 2018, the Department's Executive Deputy Secretary for Institutional Operations together with the Deputy Secretaries for the Eastern and Western Regions, issued a memorandum to inmates setting forth its new policy regarding Timberland and Rocky boots, as follows:

Effective immediately, Timberland and Rocky boots are no longer permitted to be purchased by inmates.

Inmates that have these boots or any other manufacturers procured previously in their possession will have until Friday, May 11, 2018 to make arrangements to send them home or turn them in. Inmate boot orders that were placed prior to the suspension of boot sales on February 21, 2018 and that have not been received/issued will be returned to the vendor upon receipt. The inmate will receive a full refund for the cost of the boots. Any boots found after Friday, May 11, 2018 will be considered contraband.

....

Inmates that [sic] state[-]issued boots are unavailable through [Pennsylvania Correctional Industries ( ] CI[ ) ] due to sizing and have been issued a boot or walking shoe in place of the standard issue state brown boots may retain those issued boots/shoes unless the boots are Timberland or Rocky boots. If they are Timberland or Rocky boots, they will be replaced with a security-approved shoe or boot.

The Department will be working with CI in the coming weeks to offer a significant increase in the variety of sneakers being offered.

Petition Attachment 1 (March 26, 2018 Memorandum).

On April 2, 2018, O'Toole filed a Form DC-135A (Inmate's Request to Staff Member) seeking a pre-deprivation hearing before his Timberland boots were confiscated. See Petition Attachment 2. On April 3, 2018, O'Toole's request was denied with the notation: "Read DC[-]ADM 815 [ (Personal Property, State[-]Issued Items, and Commissary/Outside Purchases) (DC-ADM 815).² ]" Petition Attachment 2.

Facts

On April 5, 2018, O'Toole filed the Petition, claiming that his boots are being illegally confiscated without due process and in violation of the Department's policy DC-ADM 815.³ On April 24, 2018, the Department filed the Preliminary Objections contending that O'Toole's Petition fails to state a due process claim because he does not have a protected interest in the confiscated property.⁴ O'Toole opposed the Department's Preliminary Objections.

Discussion

In ruling on preliminary objections, we must accept as true all well-pleaded material allegations in the petition for review, as well as all inferences reasonably deduced therefrom. The Court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and any doubt should be resolved by a refusal to sustain them.

A preliminary objection in the nature of a demurrer admits every well-pleaded fact in the complaint and all inferences reasonably deducible therefrom.^[5] It tests the legal sufficiency of the challenged pleadings and will be sustained only in cases where the pleader has clearly failed to state a claim for which relief can be granted. 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) (citations omitted).

In the Petition, O'Toole asserts:

5. ... These boots are being confiscated without a pre[-]deprivation hearing in violation of [Section 101 of the Administrative Agency Law,] 2 Pa.C.S. § 101, and the [Department's] own policy DC[-]ADM 815. ( [C]opy attached).

6. Private property cannot be taken by the government without due process. What process is due, at a minimum, to one who has lost property via the action of a Pennsylvania [s]tate [a]gency is addressed under Administrative Agency Law. [ Section 101 ] of the Administrative Agency Law defines an ‘adjudication’ as any decision by an agency affecting property rights. The decision to confiscate my boots by the [Department], without my consent, is an adjudication under this definition.

....

8. These boots are also being confiscated in violation of the [Department's] own policy and procedures, DC[-]ADM 815, which states[:]

DC[-]ADM 815, pg. 2/3, par[a]g. 6. Exceptions.a. An inmate will be permitted to keep no longer permitted items, as long as the items were noted on [his] [I]nmate[ ] ... Personal Property Inventory form ... [.] ( [C]opy attached).

9. These boots were chosen by the [Department], the only boots available for purchase, and sold to me by the [Department] at a profit, for $92.65. ( [M]aster [C]ommissary list attached).

10. The [Department] has a duty to follow [its] own policy and procedures, in the instant matter DC[-]ADM 815, and ergo I [have] a right to keep my personal property.

11. The [Department] has a duty, and I [have] a right, to a pre[-]deprivation hearing before confiscation of personal property pursuant to [Section 101 of the Administrative Agency Law].

12. [O'Toole] has no adequate remedy at law, and will suffer irreparable [sic] harm if an emergency injunction is not issued in time.

13. [O'Toole] contends that if granted, the [m]andamus order can be enforced.

WHEREFORE, [O'Toole] request[s] this Honorable Court grant an [i]njunction to stop confiscation of personal property before May 11, 2018, enter an [o]rder of [m]andamus directing [the Department] to follow DC[-]ADM 815 and allow me to keep my boots and/or to give me a pre[-]deprivation heari[n]g ..., and/or to reimburse me $92.65 for the loss of property, and/or the remedy the Court finds lawfully appropriate.

Petition at 2-3.

Due Process

Initially, Section 1 of the Fourteenth Amendment to the United States Constitution provides, in relevant part, that no state shall "deprive any person of life, liberty, or property, without due process of law[.]" U.S. Const. amend. XIV, § 1. "Due process under the Pennsylvania Constitution emanates from a number of provisions, including Article I, Sections 1, 9, and 11." Muscarella v. Commonwealth , 87 A.3d 966, 973 (Pa. Cmwlth. 2014). Article I, Section 1 of the Pennsylvania Constitution, Pa. Const. art. I, § 1, similarly protects life, liberty and property interests.⁶ Article I, Section 9 of the Pennsylvania Constitution provides, in pertinent part, that a person shall not be "deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land." Pa. Const. art. I, § 9. Article I, Section 11 of the Pennsylvania Constitution states, in relevant part, that "[a]ll courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law[.]" Pa. Const. art. I, § 11.

1. Protected Property Right

"In order to establish that the [Department] violated his Fourteenth Amendment right to due process, [O'Toole ] must establish that he has been deprived of life, liberty and property without due process of law . See U.S. Const. Amend. XIV, § 1." Silo v. Ridge , 728 A.2d 394, 399 (Pa. Cmwlth. 1999) (emphasis added). However, this Court is mindful that

[p]rison inmates do not enjoy the same level of constitutional protections afforded to non-incarcerated citizens. As the Robson [v. Biester , 53 Pa.Cmwlth. 587, 420 A.2d 9 (Pa. Cmwlth. 1980) C]ourt observed, ‘incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’ [Id. ] at 13 (citing Price v. Johnston , 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948) ).

Bronson v. Cent. Office Review Comm. , 554 Pa. 317, 721 A.2d 357, 359 (Pa. 1998).

Relying upon this Court's decision in Orozco v. Pennsylvania Department of Corrections (Pa. Cmwlth. No. 268 C.D. 2013, 2014 WL 117475, filed January 14, 2014), the Department asserts that O'Toole has no property right in his Timberland boots and, thus, due process is not required. Orozco was based upon an April 14, 2011 Department memorandum⁷ issued to Pennsylvania inmates temporarily housed in a Michigan facility⁸ informing them that they were authorized to bring back to Pennsylvania only those personal items obtained in Michigan, including boots, then available in the Pennsylvania prison commissaries. The inmates were instructed to destroy, consume or ship to their families all non-compliant personal items before they returned to a Pennsylvania facility. Upon the inmates' return to Pennsylvania, Department officials confiscated their non-compliant personal items. The inmates filed complaints seeking replacement or compensation for the confiscated items. As in the instant matter, the Department objected because the inmates had no constitutional right to possess the confiscated property. The trial court consolidated the cases and sustained the Department's Preliminary Objections. This Court affirmed the trial court's decision on the basis that the Department employees' purportedly wrongful confiscation was an intentional tort for which they enjoyed sovereign immunity.

Although Orozco's complaint did not...