Opinion
No. 338 M.D. 2013
03-07-2014
James W. Curry, Petitioner v. John Wetzel et. all D.O.C., Respondents
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Before this Court are the preliminary objections of John Wetzel (Wetzel), Secretary of the Pennsylvania Department of Corrections (DOC), to James W. Curry's (Curry) petition for a writ of mandamus in this Court's original jurisdiction.
Curry is incarcerated with DOC at the State Correctional Institution-Greene (SCI-Greene). In his petition for writ of mandamus, Curry alleges:
I. . . In or around March of 2012 Mr. Folino (Warden) walked between me and inmate #BX-3717 Grainy as we was [sic] moving to I/BLK from H/BLK due to this inmate's history of stabbing and assaulting inmates and staff constantly in general population and R.H.U. [Restrictive Housing Unit].
II. . . The day of the cell search he hid the T.V. broken antenna in the yard, 2-10 shift searched his cell hours later after the fact.
III. . . Presently we share the exercise yard with C-Pod he could have the broken T.V. Antenna 'right now.'Petition for Writ of Mandamus, July 11, 2013, Paragraph Nos. 1-7 at I-II.
IV After being on G/Block a few month [sic] a [sic] inmate from this living quarters HD H/Block D Pod moved on G/Block and talked about how #BX-3717 Grainey came out his cell and attacked a [sic] inmate going to the shower.
V This inmate or C/O's open these cell doors? As you'll notice all sorts of things just keeps [sic] happening.
VI From the herewith attached documents it's a very serious problem.
VII It's not by coincidence that inmate Grainey was moved on this Pod 9 days before my 6/11/13 schedule P.R.C. review?
My grievance was filed on 6/10, 6/13 my copies of another grievance never returned? From library. (Emphasis in original).
Curry refers to the other inmate as both "Grainy" and "Grainey." --------
Curry sought to be permanently separated from Inmate Grainey and to have this Court enforce his request for protective custody.
Wetzel preliminarily objects and alleges:
5. The Respondent demurrers to the Petition for the following reasons:
(a) The Petitioner [Curry] does not have a right to be confined in a housing unit of his own choosing under state or federal law. . . .
(b) The Petitioner [Curry] is not entitled to administrative or protective custody;Respondent's Preliminary Objections to Petition for Review, August 12, 2013, Paragraph No. 5(a-e) and (h) at 2-3.
(c) The operations of correctional facilities are particularly within the province of the legislative and executive branches of state government and not the judicial branch. . . .
(d) This Court does not have jurisdiction over cases not involving constitutional rights not limited by the Department of Corrections . . . .
(e) The Court lacks original and appellate jurisdiction over this matter;
. . . .
(h) The Petitioner [Curry] is not entitled to mandamus relief, because he has not established a clear right to the requested relief and there is no correspondingly clear duty on the part of the Respondent [Wetzel] to place the Petitioner [Curry] in administrative protective custody. (Citations omitted).
In considering preliminary objections, this Court must consider as true all well-pleaded material facts set forth in the petitioner's petition and all reasonable inferences that may be drawn from those facts. Mulholland v. Pittsburgh National Bank, 405 Pa. 268, 271-272, 174 A.2d 861, 863 (1961). 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. Werner v. Zazyczny, 545 Pa. 570, 681 A.2d 1331 (1996).
Mandamus is an extraordinary writ designed to compel performance of a ministerial act or mandatory duty where there exists a clear right in the plaintiff, a corresponding duty in the defendant and want of any other adequate and appropriate remedy. Princeton Sportswear Corp. v. Redevelopment Authority, 460 Pa. 274, 333 A.2d 473 (1975).
Initially, Wetzel contends that Curry's petition should be dismissed because Curry is not entitled to be housed in a particular housing unit or in protective custody.
DOC's regulation, 37 Pa.Code §93.11(a), provides, "An inmate does not have a right to be housed in a particular area within a facility."
In Clark v. Beard, 918 A.2d 155, 160 (Pa. Cmwlth. 2007), this Court cited the regulation and stated "it is entirely a matter of the Department's [DOC] discretion where to house an inmate."
Given the regulation and case law, this Court agrees with DOC that Curry has no right to be housed in a particular housing unit.
Wetzel then asserts that because Curry has no clear right to the relief he requests and because DOC has no duty to accede to his housing request, mandamus does not lie. This Court agrees. Curry has no right to be moved to a different housing unit to be kept away from another prisoner and DOC has no duty to grant the request.
Finally, Wetzel contends that the petition for review should be dismissed because inmate grievances and grievance appeals are matters outside this Court's appellate and original jurisdiction.
In his petition, Curry does refer to grievances and attaches grievances he has filed concerning the issue of his housing apart from Inmate Grainey.
To the extent Curry does ask this Court to rule on his grievances, this Court agrees with Wetzel that the grievances are not within this Court's jurisdiction. In Bronson v. Central Office Review Committee, 554 Pa. 317, 721 A.2d 357 (1998), our Pennsylvania Supreme Court held that unless an inmate could identify a personal or property interest not limited by DOC regulations and which was affected by a final decision of DOC, decisions by DOC regarding grievances are not subject to this Court's review. Our Pennsylvania Supreme Court held that absent this exception this Court has neither appellate nor original jurisdiction over inmate grievances. Curry has failed to identify such a personal or property interest.
Accordingly, this Court agrees that Curry fails to state a claim upon which relief can be granted and dismisses Curry's petition for a writ of mandamus with prejudice.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 7th day of March, 2014, this Court sustains John Wetzel's preliminary objection that James W. Curry fails to state a claim upon which relief can be granted and dismisses Curry's petition with prejudice.
/s/_________
BERNARD L. McGINLEY, Judge