Bundy v. Beard

924 A.2d 723

Antonio BUNDY, Petitioner v. Jeffrey BEARD, Secretary for the Pa. Department of Corrections, Respondent.

No. 4 M.D. 2007.

Commonwealth Court of Pennsylvania.

Submitted on Briefs April 5, 2007.

Decided May 22, 2007.

Antonio Bundy, petitioner, pro se.

Michael J. McGovern, Asst. Counsel and Suzanne N. Hueston, Chief Counsel, Camp Hill, for respondent.

BEFORE: LEADBETTER, President Judge, FRIEDMAN, Judge, McCLOSKEY, Senior Judge.

OPINION BY Senior Judge McCLOSKEY.

Presently before this Court are the preliminary objections in the nature of a demurrer filed by Respondent Jeffrey Beard, in his capacity as Secretary of the Pennsylvania Department of Corrections (DOC), in response to a pro se petition for review¹ filed by Antonio Bundy (Petitioner) in this Court's original jurisdiction. Petitioner is seeking declaratory relief. We now sustain DOC's preliminary objections and dismiss Petitioner's petition for review.

Petitioner is an inmate committed to the custody of DOC, and he is currently incarcerated at the State Correctional Institution at Somerset, Pennsylvania (SCI-Somerset).

In his petition for review, Petitioner alleges that on August 30, 2005, DOC issued a bulletin amending DC-ADM 803, "Inmate Mail and Incoming Publications." The amendment took effect on September 6, 2005. The changes complained of authorize DOC employees to confiscate Uniform Commercial Code (UCC) filing documents mailed to an inmate. The policy provides that upon confiscation:

An unacceptable Correspondence/UCC Related Material form (attachment D) shall be completed and sent to the inmate. The inmate shall have 10 days from the date of the notice to file a grievance, in accordance with DC-ADM 804, `Inmate Grievance System' advising the Grievance Coordinator of the legal basis and purpose for his/her possession of UCC related material.

Petitioner also avers that in early 2006, UCC materials were confiscated during a search of his cell. In addition, a request for UCC material through the library loan program was denied. On April 17, 2006, Petitioner filed a grievance (No. 149323), challenging the confiscation of legal material. Petitioner received an adverse decision, which he appealed. Petitioner avers that final review was denied on July 10, 2006, exhausting his administrative remedies.

Petitioner alleges that DOC violated the Commonwealth Documents Law, Act of July 31, 1968, P.L. 877, as amended, 45 P.S. §§ 1102-1602, and the Regulatory Review Act, Act of June 25, 1982, P.L. 633, as amended, 71 P.S. § 745.1-745.15, when it implemented changes to policy DC-ADM 803 without first publishing the changes. Petitioner further alleges that the policy violates his due process rights and his access to the courts.

Petitioner seeks a declaratory judgment: (1) invalidating DOC's practice of amending its policies without first publishing the amendments, and (2) prohibiting DOC from engaging in such practices in the future. DOC filed preliminary objections in the nature of a demurrer, which are now before this Court.²

DOC maintains that it is entitled to a demurrer because the petition for review fails to state a cause of action upon which relief may be granted. First, DOC argues that its bulletins governing internal policies are exempt from the Commonwealth Documents Law and the Regulatory Review Act pursuant to Small v. Horn, 554 Pa. 600, 722 A.2d 664 (1998). DOC further argues that its policy governing inmate's receipt of UCC documents provides adequate protections for inmates' constitutional rights. DOC states that its policy governing inmate UCC documents is a legitimate exercise of its administrative authority that is unrelated to the suppression of expression and is no broader than necessary to protect the interest involved.³ DOC points out that DC-ADM 803 provides inmates with appropriate due process to obtain the necessary documents to file a legitimate lien. DOC argues that the filing of false UCC liens creates problems for criminal justice personnel, and it observes that a number of courts have recognized the burgeoning problem of inmates making meritless UCC filings against judges, prosecutors and corrections officials in retaliation for actions those officials have taken in their official capacities. See United States v. Martin, 356 F.Supp.2d 621 (W.D.Va.2005); United States v. McKinley, 53 F.3d 1170 (10th Cir.1995); United States v. Reeves, 782 F.2d 1323 (5th Cir.), cert. denied, 479 U.S. 837, 107 S.Ct. 136, 93 L.Ed.2d 79 (1986). DOC argues that to allow inmates to have unrestricted access to UCC related materials will only serve to empower them to engage in harassment, retaliation, attempted extortion, economic blackmail and paper terrorism against public officials. Finally, no other realistic remedy currently exists.

Petitioner counters that his petition for review states a cause of action upon which relief may be granted. Petitioner states that it is well-established that any amendment of a regulation by an executive agency of the Commonwealth of Pennsylvania must be promulgated through the procedures of the Commonwealth Documents Law. The requirement of promulgation is particularly applicable in the case at hand because ADM-803 concerns the interaction of prisoners and employees with the community and general public.⁴ Without explanation, Petitioner states that promulgation is required because of the effect that the policy would have on the substantial rights of members of the public and the denial of notice and an opportunity to be heard.

Petitioner further argues that DOC is not empowered to impair a prisoner's federal right to access the courts by requiring a prisoner to give reasons for use of UCC material. Petitioner notes that DOC's regulation at 37 Pa.Code § 93.8, requires inmates to have reasonable access to certain enumerated legal reference materials, including "other materials which may assist inmates to prepare their own legal documents."⁵ Petitioner acknowledges that the United States Supreme Court has held that when a prison regulation impinges on an inmate's constitutional rights, the regulation is valid if it is reasonably related to a legitimate penological interest. Petitioner asserts that the "operative word" is "regulation." Petitioner takes the position that an unpublished bulletin or statement of policy does not rise to the level of a "regulation" and is not afforded such protection. Petitioner asserts that it is the duty of the courts, not DOC, to determine the merits of a UCC claim.⁶ Moreover, the legislature provides adequate sanctions for falsely filed suits.⁷

Based upon the above, Petitioner contends that he has stated a claim for a violation of 42 U.S.C. § 1983. See Owens v. Shannon, 808 A.2d 607 (Pa.Cmwlth. 2002) (to state a claim under Section 1983, a plaintiff must: (1) allege a violation of rights secured under the United States Constitution or United States law, and (2) show that the alleged violation was committed by a person acting under color of state law).

As background, the official regulations governing state correctional institutions and facilities are published at 37 Pa.Code §§ 93.1-93.13. 37 Pa.Code § 93.1 clarifies that only those DOC directives that concern the interaction of DOC inmates and employees with the community at large are published. The latest revision of these regulations was promulgated in 2001, apparently in accordance with the notice and comment requirements of the Commonwealth Documents Law and Regulatory Review Act. See 31 Pa. Bull. 2476 (May 12, 2001) and 6932 (December 22, 2001). DOC also adopts directives and/or bulletins to set forth policies relating to inmates. These directives and/or bulletins are not published in the Pennsylvania Code, and DOC takes the position that it need not go through the procedures set forth in the Commonwealth Documents Law and Regulatory Review Act when it adopts these directives and/or bulletins.

First, we will address the arguments as to whether the bulletin and/or directive relating to UCC materials was invalid because DOC failed to comply with the requirements for adopting regulations as set forth in the Commonwealth Documents Law and the Regulatory Review Act. In Small, the Pennsylvania Supreme Court was presented, in part, with the issue of whether DOC was required to comply with the requirements of the Commonwealth Documents Law and Regulatory Review Act when adopting a bulletin revoking permission for inmates to wear civilian clothing. The Court held that DOC's bulletins are not regulations for purposes of the Commonwealth Documents Law or the Regulatory Review Act. The Court, in reaching the holding, wrote that the bulletins "do not constitute regulations, but instead embody decisions that are inherently committed to the agency's discretion...." Small, 554 Pa. at 612, 722 A.2d at 670. The Court recognized that DOC's bulletins fit into a category of agency decisions that are inherently committed to the agency's sound discretion and that cannot reasonably be subjected to the "normal public participation process." The Court wrote:

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. Accordingly, [DOC] must enforce reasonable rules of internal prison management to ensure public safety and prison security. These rules must be modified as conditions change, different security needs arise, and experience brings to light weaknesses in current security measures. Where, as here, the measure has at most an incidental effect on the general public, it is reasonable to conclude that the Legislature did not intend the measure to be subjected to the `normal participation process.'

Small, 554 Pa. at 610-11, 722 A.2d at 669-70 (citations omitted).

Therefore, in light of our Supreme Court's holding in Small, we must...