Romig v. Wetzel

309 A.3d 1108

Michael C. ROMIG, Petitioner

v.John WETZEL, Kathy Brittian, Keri Moore and Department of Corrections, Respondents

No. 684 M.D. 2019

Commonwealth Court of Pennsylvania.

Submitted on Briefs July 14, 2023

Decided January 29, 2024

Original Jurisdiction

Michael C. Romig, Petitioner, Pro Se.

Tara J. Wikhian, Assistant Counsel, Mechanicsburg, for Respondent.

BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION BY SENIOR JUDGE LEAVITT

[1] Michael C. Romig, pro se, has filed a petition for review¹ in the nature of a mandamus action against John Wetzel, Kathy Brittian,² Keri Moore, and the Depart- ment of Corrections (Department), seeking to compel the Department to comply with its procedures for the handling of legal mail. The gravamen of Romig’s action is that the Department’s mailroom rejected certified mail from the Mifflin County Tax Claim Bureau (Tax Bureau) without providing him notice of the rejection. Believing that his right to relief is clear and no material issue of fact is in dispute, Romig has filed a motion for judgment on the pleadings.³ The Department has filed a cross-application for summary relief.

Romig, who is incarcerated at the State Correctional Institution (SCI) at Frackville, has filed a petition for review challenging the handling of his mail. The petition alleges that mail for SCI-Frackville is received and processed at SCI-Mahanoy. It further alleges that certified mail sent to Romig by the "Mifflin County Court of Common Pleas and [ ] Tax Bureau," i.e., "[l]egal [m]ail," was rejected by SCI-Mahanoy’s mailroom. Petition for Review, 12/17/2019, ¶2. Because SCI-Mahanoy did not notify Romig that it had rejected this certified mail, Romig filed a grievance with the Department’s inmate grievance system.

Romig’s grievance was denied. SCI-Mahanoy’s mailroom supervisor, F. Walter, responded to Romig on September 19, 2019, stating, in pertinent part:

Mail coming from a Sheriff’s Office is not considered legal mail as per the [Department’s] legal department. Any mail coming from the Sheriff’s Office should be sent through Smart Communications. When mail is refused the mail is not opened and the inmate is not notified[.]

Id., Attachment at 2 (emphasis added). The petition asserts that Walter’s response "seems to attempt to circumvent regular mail procedure for legal mail procedure." Id. ¶6.

Romig appealed the denial of his grievance to Kathy Brittain, Facility Manager, who upheld the denial. Brittain explained that Romig’s grievance was inadequate because he did not "provide a date or any evidence to substantiate that mail was sent by [the] Mifflin County Court of Common Pleas" or state in his grievance that the rejected mail was sent by certified mail. Petition for Review, 12/17/2019, Attachment at 4. Romig notes that it was impossible for him to provide this information because he never received notice that his mail had been refused.

Romig appealed Brittain’s response to the Department’s Office of Inmate Grievances and Appeals, asserting that Brittain incorrectly applied the Department’s mail policy. In his grievance appeal, Romig further contended that Brittain’s response did not address his grievance "that the mail came from [the] ‘Mifflin County Courthouse,’ and relies only on the mention of the ‘[S]heriff’s Office’, [ ] in [an] attempt to circumvent the circumstances." Id., Attachment at 5.

The Department’s Chief Grievance Officer concluded that "[t]he possible scenario surrounding this returned mail was explained to you; however, without more specific information such as a date, no further information can be provided." Petition for Review, 12/17/2019, Attachment at 7. The Chief Grievance Officer added: "Further, despite your claims, no notification is required to be provided to an inmate when mail is refused[;] the sender is advised of the issue and has the option to fix it and resend the mail." Id.

In his petition for review, Romig, citing Procunier v. Martinez, 416 U.S. 396, 418-19, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), contends that an inmate must be afforded (1) notice of a mail rejection, (2) a reasonable opportunity to appeal the rejection, and (3) a review by a prison official other than the official who made the initial decision. He claims that the Department’s rejection of his mail without notice to him violated his rights under the First⁴ and Fourteenth⁵ Amendments to the United States Constitution. Petition for Review, 12/17/2019, ¶4. He also claims a violation of the Department’s policy on processing an inmate’s legal mail. Romig’s petition asserts that an inmate must be notified whenever the Department rejects any inmate mail. Romig seeks an order from this Court awarding him $80,000 in "punitive damages" and compelling the Department "to formulate steps to prevent this from happening again." Id. at 3.

In response to Romig’s petition for review, the Department filed preliminary objections asserting a lack of allegations personally involving John Wetzel, Kathy Brittain, and Keri Moore and a demurrer to Romig’s First and Fourteenth Amendment claims. The preliminary objections were sustained in part and overruled in part. Wetzel, Brittain and Moore were dismissed from the matter, but the Department’s demurrer to Romig’s First and Fourteenth Amendment claims was overruled. Subsequently, the Department filed an answer to the petition for review.

On January 19, 2023, Romig filed a "Motion for Judgment on Pleadings/Dispositive Motion," arguing that "[i]t is clear that [his] constitutional rights have been violated by the Department[‘s] [ ] actions/inactions, resulting in loss of property damages." Romig Motion ¶1. The Department filed a cross-application for summary relief in the form of a motion for judgment on the pleadings, arguing that Romig cannot establish a deprivation of a protected interest because his claim relates to the rejection of a single piece of mail sent by the Tax Bureau.

[2, 3] An application for summary relief is governed by Pennsylvania Rule of Appellate Procedure 1532(b). Rule 1532(b) provides that "[a]ny time after the filing of a petition for review in an appellate or original jurisdiction matter, the court may on application enter judgment if the right of the applicant thereto is clear." PA. R.A.P. 1532(b). In evaluating an application for summary relief, the Court applies the same standards that apply to summary judgment. Myers v. Commonwealth, 128 A.3d 846, 849 (Pa. Cmwlth. 2015) (quoting McGarry v. Pennsylvania Board of Probation and Parole, 819 A.2d 1211, 1214 n.7 (Pa. Cmwlth. 2003)). Specifically, summary relief is appropriate where the moving "party’s right to judgment is clear" and no material issues of fact are in dispute. Myers, 128 A.3d at 849 (quoting McGarry, 819 A.2d at 1214 n.7).

[4–6] Mandamus is an extraordinary remedy used to compel the performance of a ministerial act or mandatory duty where a petitioner establishes (1) a clear legal right to relief, (2) a corresponding duty in the respondent, and (3) a lack of any other adequate and appropriate remedy at law. Tindell v. Department of Corrections, 87 A.3d 1029, 1034 (Pa. Cmwlth. 2014). The purpose of mandamus is not to establish rights or to compel performance of discretionary acts but, instead, to enforce rights that have been clearly established. Id. Ordinarily, "mandamus is not a proper vehicle for challenging the constitutionality of a statute, regulation or policy." Clark v. Beard, 918 A.2d 155, 159 (Pa. Cmwlth. 2007). This is because a writ of mandamus would compel "a governmental ministerial officer to act in disobedience of the requirements of a relevant statute, before there has been a judicial pronouncement of [its] invalidity[.]" Unger v. Hampton Township, 437 Pa. 399, 263 A.2d 385, 388 (1970) (quoting Booz v. Reed, 398 Pa. 172, 157 A.2d 170, 172 (1960)).

This Court has considered the constitutionality of the Department’s mail policy. In Ortiz v. Pennsylvania Department of Corrections (Pa. Cmwlth., No. 615 M.D. 2018, 2021 WL 4162942, filed September 14, 2021) (unreported),⁶ we examined the Department’s handling of both privileged and non-privileged mail. There, an inmate at SCI-Pine Grove alleged that the Department’s mail policy, at the time, imposed an impermissible burden on his constitutional rights to receive mail and to privacy because the original versions of his mail were sent to a third-party vendor where they were copied. Copies, not the original documents, were then sent to him. The inmate sought injunctive relief to enjoin the Department’s mail policy.

We held that the handling of non-privileged mail does not implicate a right to privacy. With respect to privileged mail, the analysis is different. After Ortiz filed his petition, the Department entered into a settlement in federal court, agreeing to stop copying privileged mail and to continue to use the attorney control number system.⁷ On that basis, we concluded: "[The] mail policy does not violate [the inmate’s] constitutional rights." Ortiz, slip op. at 9.

[7] Notably, Ortiz did not consider the issue of mail rejection and whether an inmate is entitled to notice thereof. We must, therefore, consider whether the Department’s failure to notify Romig of rejected mail violated his constitutional rights. We begin with Romig’s First Amendment claim.

Romig argues that his First Amendment rights were violated "because the mail had regards [sic] to the possible transfer of real estate property, currently owned by [Romig], of which he has a liberty interest in the real estate property, and deprivation of that protected liberty interest was hindered by the [Department’s] withholding and returning of mail to sender without notice to intended recipient." Romig Brief at 6.

[8–10] The First Amendment to the United States Constitution protects an inmate’s general right to communicate by mail. Rivera v. Silbaugh, 240 A.3d 229, 238 (Pa. Cmwlth. 2020)....