Opinion
No. 268 C.D. 2013
01-14-2014
Edgar Orozco, Appellant v. PA. Department of Corrections
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Edgar Orozco, an inmate at the State Correctional Institution at Somerset (SCI-Somerset), appeals pro se from the order of the Court of Common Pleas of Somerset County (trial court) that sustained the preliminary objections of the Pennsylvania Department of Corrections (Department) in the nature of a demurrer and dismissed his action. Because we agree with the trial court that Orozco failed to state a valid cause of action for the relief sought, we affirm.
Orozco commenced the instant action in January 2012, demanding that the Department replace his personal items confiscated by prison officials or compensate him for those items. He alleged that he and other inmates at SCI-Somerset were temporarily transferred to a prison in Michigan in March 2010 and that when he returned to SCI-Somerset in May 2011, prison officials confiscated his boots, sneakers, bathrobe, headphones and thermal socks that he had purchased while in the Michigan prison. Orozco claimed that he was permitted to keep those items because they were listed on his DC-153 form ("Inmate Personal Property Inventory").
To support his claim, Orozco relied on Section 2.5 of DC-ADM 815 ("Personal Property, State Issued Items, and Commissary/Outside Purchases Procedures Manual"), which provided in relevant part:
a. An inmate will be permitted to keep no-longer-permitted items, as long as the item(s) were noted on the inmate's DC-153, Personal Property Inventory as of the effective date of the previous DC-ADM 815, dated May 12, 2008.Appendix to Orozco's Brief, Exhibit A.
b. When an inmate transfers to a facility that does not permit an item previously approved at another facility, the inmate will be permitted to keep the item, as long as the item is noted on the inmate's DC-153 as noted above, with the exception of tobacco products when an inmate is transferred to a tobacco free facility. Once the item is no longer useable it may not be replaced.
Orozco alleged that prison officials were "NEGLIGENT WITH [HIS] PERSONAL PROPERTY" and that he may seek a remedy for their negligent handling of his personal property under Section 8522(b)(3) of the Judicial Code, as amended, 42 Pa. C.S. § 8522(b)(3), setting forth an exception to sovereign immunity for a claim for damages caused by negligent "[c]are, custody or control of personal property." Complaint, ¶¶ 20 and 22. He asked the court to order the Department to replace the confiscated items or to pay $1500 to compensate him for those items.
The trial court consolidated Orozco's action and the actions filed by twenty other inmates whose personal items were also confiscated upon their return to SCI-Somerset from the Michigan prison, designating Orozco's action as a lead case. The Department filed preliminary objections in the nature of a demurrer, characterizing the consolidated actions as "civil right[s] action[s]" and seeking dismissal of the complaints for failure to state a cause of action. Preliminary Objections, ¶ 3. It argued that the plaintiffs had "no constitutional right to possess the property in question" and that "[n]o Department policy create[d] such a right." Id. ¶¶ 5 and 6.
The trial court sustained the preliminary objections and dismissed all of the consolidated actions. The court noted that although Orozco asserted the prison officials' negligence in handling his property, their action actually involved an "intentional" act of removing the items deemed to be contraband, not a negligent act. Trial Court's Opinion at 3. The court concluded that Orozco's action was barred by sovereign immunity because the Department's employees acting within the scope of their duties are protected from liability for intentional tort claims. Orozco's appeal to this Court followed.
Noting that another inmate, Sharkeen King, "assert[ed] a civil right[s] action," the court rejected his argument that the prison officials' act of taking his personal property without just compensation violated his constitutional property rights. Trial Court's Opinion at 2.
In reviewing the trial court's order sustaining preliminary objections in the nature of a demurrer, this Court must accept all well-pleaded material facts and inferences deducible therefrom. Cnty. of Dauphin v. City of Harrisburg, 24 A.3d 1083, 1089 (Pa. Cmwlth. 2011). A demurrer may be sustained only when it appears with certainty that the law will not permit recovery; any doubt must be resolved in favor of overruling a demurrer. Id. Our review of an order sustaining a demurrer is plenary. Id. at 1090.
The Commonwealth and its officials and employees acting within the scope of their duties enjoy sovereign immunity and are immune from suit unless the Legislature has specifically waived the immunity. 1 Pa. C.S. § 2310. The Legislature has waived sovereign immunity for a claim for damages arising out of a Commonwealth party's "negligent act" enumerated in Section 8522(b) of the Judicial Code.
In his action, Orozco alleged that prison officials "wrongfully confiscated" his personal items upon his return to SCI-Somerset from the Michigan prison. Complaint, ¶ 9. He does not dispute that the prison officials acted within the scope of their duties in confiscating those items. The prison officials' alleged act, therefore, was an intentional act, not a negligent act that could fall within the personal property exception to sovereign immunity in Section 8522(b)(3) of the Judicial Code. It is well established that employees of a Commonwealth agency acting within the scope of their duties are protected from the imposition of liability for intentional tort claims. Williams v. Stickman, 917 A.2d 915, 917 (Pa. Cmwlth. 2007); La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Cmwlth. 1992). Hence, Orozco's action is barred by sovereign immunity.
Orozco nonetheless argues that he stated a cause of action for a violation of his constitutional property rights. In the complaint, however, he did not set forth such claim. Nor did he seek to amend the complaint to allege such claim. Assuming, arguendo, that the claim was included in the complaint, he still failed to state a valid cause of action.
Prison administrators are afforded wide-ranging deference in their adoption and enforcement of policies that are necessary to preserve order, discipline and security in prisons. Dehart v. Horn, 694 A.2d 16, 19 n.9 (Pa. Cmwlth. 1997). A prison authority's adoption of policies and practices creates neither rights in inmates nor a constitutionally protected interest triggering the inmates' due process protection. Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Weaver v. Pa. Dep't of Corr., 829 A.2d 750, 753 (Pa. Cmwlth. 2003); Bullock v. Horn, 720 A.2d 1079, 1082 n.6 (Pa. Cmwlth. 1998). A prison regulation is valid if it is reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89 (1987).
In Small v. Horn, 554 Pa. 600, 722 A.2d 664 (1998), inmates argued that the Department's policy of restricting their purchase of garments and requiring removal of all non-conforming apparel from the prison without just compensation deprived them of their constitutional property rights. In rejecting the argument, our Supreme Court stated:
Because of the unique nature and requirements of the prison setting, imprisonment "carries with it the circumscription or loss of many significant rights ... to accommodate a myriad of institutional needs ... chief among which is internal security." Hudson v. Palmer, 468 U.S. 517, 524 ... (1984). Accordingly, the Department must enforce reasonable rules of internal prison management to ensure public safety and prison safety. These rules must be modified as conditions change, different security needs arises, and experience brings to light weaknesses in current security measures.Id. at 610-11, 722 A.2d at 669-70. The Court noted that other courts had recognized that "reasonable prison regulations regarding the quantity and type of property that inmates may possess do not violate due process guarantees." Id. at 614, 722 A.2d at 671. See, e.g., Bell v. Wolfish, 441 U.S. 520, 554 (1979) (holding that prisoners' due process rights with respect to possession of property are not absolute and are subject to reasonable limitations); Williams v. Meese, 926 F.2d 994, 998 (10th Cir. 1991) (finding no deprivation of property rights where a prisoner's property was sent to an address of his or her choice).
Although Section 2.5.a and b of DC-ADM 815, relied on by Orozco, allowed inmates, who have been transferred to another facility, to keep items listed on his or her DC-153 form, it did not specifically address the situation involving a transfer from an out-of-state prison to a Pennsylvania prison. The Department had wide discretion to adopt a new policy in order to deal with such situation. In a bulletin issued on April 14, 2011, the Department informed all Pennsylvania inmates housed in Michigan that they were "only authorized to bring back to Pennsylvania those items currently available through commissary." The bulletin listed items that they "should ship, destroy or consume ... prior to [their] return" to Pennsylvania, including "[d]ifferent color sneakers and boots," "Michigan state-issued t-shirts, underwear, socks, and thermals," and "[r]obes, all colors." April 14, 2011 Bulletin; Appendix to Orozco's Brief, Exhibit B.
Before the commencement of this action, Orozco filed a grievance, complaining of the confiscation of his personal items brought from the Michigan prison. In a final decision issued in August 2011, the Secretary's Office of Inmate Grievances & Appeals denied his grievance, stating:
The record shows that you were issued a notice dated 2-5-2010 which stated the following regarding commissary: the general rule is you are permitted to purchase whatever Michigan allows, but upon return to the PA DOC you must either ship or destroy items not permitted in PA. The only kind of sneakers available and permitted in PA are white and the only colors of boots permitted are brown or wheat. The ones confiscated from you were multicolored. The only bathrobes available of the PA commissary list are white or cocoa brown and the confiscation items receipt shows that yours was maroon polyester velour. The memo addressed the thermal socks as well as the robes. In addition, the earphones are not the approved item on the PA commissary list.
The Department's bulletins "embody decisions that are inherently committed to the agency's discretion." Small, 554 Pa. at 612, 722 A.2d at 670. The April 14, 2011 bulletin is reasonably related to the Department's legitimate penological interest of maintaining order, discipline and security in the prison. The enforcement of the Department's policy in that bulletin, therefore, did not violate Orozco's constitutional property rights.
Accordingly, the trial court's order is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 14th day of January, 2014, the order of the Court of Common Pleas of Somerset County in the above-captioned matter is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge
Appendix to Orozco's Brief, Exhibit K.