Opinion
No. 2019 C.D. 2012
04-24-2013
Thomas Kelly, Petitioner v. Department of Corrections, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Thomas Kelly (Kelly), an inmate incarcerated at the State Correctional Institution at Houtzdale (SCI-Houtzdale), petitions for review pro se of an order of the Pennsylvania Department of Corrections (DOC). DOC assessed Kelly a fee of $789.73 under DOC policy DC-ADM 801 § VIII B4 for costs associated with injuries that DOC determined Kelly inflicted upon another inmate at SCI-Houtzdale. We affirm.
This policy provides generally that DOC may assess an inmate reimbursement costs of two-thirds (2/3) of treatment when the inmate is found to have caused injuries to another inmate.
On March 23, 2012, DOC issued a misconduct report against Kelly, alleging that he was involved in an assault upon another inmate. (Certified Record (C.R.) Item 1.) On March 27, 2012, following a hearing on the misconduct charge, a hearing examiner concluded that Kelly should be sanctioned for the assault and assessed costs of treatment for the other inmate's injuries. (C.R. Item 2.) DOC notified Kelly that it would conduct a "Holloway" hearing on July 2, 2012, to determine the amount of assessment. (C.R. Item 4.) During that hearing DOC offered documents and testimony of a witness regarding the costs of treatment, and Kelly had an opportunity to examine that witness. (C.R. Item 5.) Kelly offered as evidence the statement of the assaulted inmate. (Id., Kelly Ex. No. 1.) The inmate stated that "I told security officers that I believed Mr. Kelly was not responsible for me being assaulted . . . ." (Id.)
In Holloway v. Lehman, 671 A.2d 1179 (Pa. Cmwlth. 1996), this Court held that before DOC can assess damages against an inmate's prison account, DOC must provide the inmate with a hearing and adjudication that complies with Sections 504 through 507 of the Administrative Agency Law, 2 Pa. C.S. §§ 504-07.
The hearing examiner issued a report containing proposed findings of fact and conclusions of law, recommending that DOC assess Kelly costs in the amount of $789.73. (C.R. Item 6.) On August 6, 2012, DOC served Kelly with the report. (C.R. Item 7.) The Proof of Service of the report contains Kelly's acknowledgment that he received the report and also includes the following statement: "I understand that I may file Exceptions and Brief opposing the Report within thirty (30) days of this date by submitting them to Robin Lewis . . . . . I also understand that failure to comply with the filing date may result in the entry of an Order adopting the Hearing Examiner's Report." (Id.) Kelly did not file exceptions or a brief in response to the report. DOC Secretary John Wetzel issued an opinion and order on October 1, 2012, directing Kelly to reimburse the Commonwealth for the assessed costs. (C.R. Item 8.) DOC served Kelly with the opinion and order on October 9, 2012. Kelly filed a petition for review of the opinion and order.
On appeal, Kelly essentially challenges the assessment by attacking the propriety of the underlying misconduct charge, asserting that DOC committed errors in the manner by which it conducted its investigation of the assault and misconduct charge. Kelly asserts in his petition for review that he "now contends that DOC's Assessment is not supported by substantial evidence where this Defendant is innocent but was not able to cross-examine information that was received in-camera from confidential informants." (Petition for Review at 3.) Specifically, Kelly raises the following issues for review: (1) whether he was entitled to due process protection in the course of his misconduct hearing, because the outcome of that proceeding affected a protected property interest at issue in the assessment proceedings and, thus, should be regarded as an adjudication; and (2) if the Court agrees that the misconduct proceeding resulted in an adjudication, whether the process employed by DOC violated Kelly's due process rights.
This Court's review of an order of the Secretary of DOC adopting a hearing examiner's proposed decision in an assessment matter is limited to considering whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Jones v. Dep't of Corrections, 39 A.3d 599, 601 (Pa. Cmwlth. 2012).
In response, DOC contends that Kelly failed to preserve any issues for review because he failed to file exceptions to the hearing examiner's proposed report. If DOC is correct, this Court need not address the issues Kelly has raised.
As DOC explains, when a hearing examiner issues a proposed report, a party who seeks to challenge the report in an appeal to the agency head must file exceptions to the report within the time period designated by the agency head. 1 Pa. Code § 35.211. In this case, the notice DOC provided to Kelly informed him that he had thirty (30) days within which to submit exceptions to the proposed report. The regulations also provide that a party's failure to file exceptions to a proposed report "shall constitute a waiver of all objections to the proposed report." 1 Pa. Code § 35.213. Kelly failed to submit exceptions. The Secretary of DOC, therefore, did not err in concluding that Kelly waived his right to challenge the proposed report.
Section 31.1 of Title 1 of the Pennsylvania Code provides that the rules and regulations contained in that Title apply generally to proceedings before administrative agencies of the Commonwealth. --------
Accordingly, we affirm the order of the Secretary of DOC, accepting the findings and conclusions contained in the hearing examiner's proposed report.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 24th day of April, 2013, the order of the Secretary of the Department of Corrections is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge