Sutton v. Bickell

220 A.3d 1027

Kelvin SUTTON and Clifford Smith, on Behalf of the Inmate General Population, S.C. I., Frackville, Appellant

v.Tabb BICKELL, Michael Wenerowicz, and The Pennsylvania Department of Corrections

Appeal of: Kelvin Sutton

No. 4 MAP 2019

Supreme Court of Pennsylvania.

Decided: November 20, 2019

OPINION

CHIEF JUSTICE SAYLOR

In this direct appeal, we address whether the Department of Corrections acted permissibly in mandating that certain types of boots possessed by inmates be surrendered or sent home.

I. Background

In February 2018, a Pennsylvania Department of Corrections prison guard died after an inmate attacked him and kicked him in the head with Timberland boots. Later that month, the Department suspended commissary sales of such boots. Thereafter, in March 2018, Tabb Bickell, Executive Deputy Secretary of Institutional Operations, Michael Wenerowics, Deputy Secretary of the Eastern Region, and Trevor Wingard, described as "A/Deputy Secretary Western Region," issued a memorandum to all inmates stating that, effective immediately, Timberland and Rocky boots could no longer be purchased by prisoners. The memorandum added:

Inmates that have these boots ... in their possession will have until Friday, May 11, 2018, to make arrangements to send them home or turn them in. Inmate boot orders that were placed prior to the suspension of boot sales on February 21, 2018, and that have not been received/issued will be returned to the vendor upon receipt. The inmate will receive a full refund for the cost of the boots. Any boots found after Friday, May 11, 2018, will be considered contraband.

* * * * *

Inmates [for whom] state issued boots are unavailable ... due to sizing and have been issued a boot or walking shoe in place of the standard issue state brown boots may retain those issued boots/shoes unless the boots are Timberland or Rocky boots. If they are Timberland or Rocky boots, they will be replaced with a security-approved shoe or boot.

The Department will be working ... in the coming weeks to offer a significant increase in the variety of sneakers being offered.

Pennsylvania Department of Corrections Memorandum to All Inmates, dated March 26, 2018 (emphasis omitted) (the "Memorandum").

Appellant, an inmate at SCI-Frackville, filed papers in the Commonwealth Court styled as a motion for "Special Relief and Injunctions," which the court treated as a petition for review directed to its original jurisdiction (the "Petition").¹ The Petition named as respondents Executive Deputy Secretary Bickell, Deputy Secretary Wenerowics, and the Department of Corrections (collectively, the "Department").

In the Petition, Appellant alleged that he owned a pair of Timberland boots which he previously purchased through the prison's commissary for approximately $99.00, which was deducted from his inmate account. He averred that, per the Memorandum's requirements, his boots, and those of approximately 50,000 other inmates, would effectively be confiscated without a refund. He maintained that this action would be contrary to the Department's policy statement relating to personal property and commissary purchases, as set forth in a directive known as "DC-ADM 815."

Appellant stated causes of action under the federal Due Process Clause, see U.S. CONST. amend. XIV, § 1 ;² and the Unfair Trade Practices and Consumer Protection Law, see 73 P.S. §§ 201-1 to 201-9.3 (the "UTPCPL"). He additionally included a claim sounding in tort, namely, the intentional tort of conversion. Appellant sought injunctive relief in the form of an order directing the Department to return his boots or, in the alternative, refund the purchase price.³

The Department requested a stay of the litigation, noting that numerous similar petitions had been filed, and that the Department had designated another matter, O'Toole v. Department of Corrections , No. 228 M.D. 2018 (Pa. Cmwlth.), as the lead case. The Commonwealth Court initially granted the request, staying the matter pending its decision in O'Toole . After Appellant requested reconsideration, the court vacated the stay and directed the Department to file a responsive pleading.

The Department filed preliminary objections in the nature of a demurrer, asserting, inter alia , that: the Memorandum gave Appellant constitutionally adequate notice for due process purposes, as it provided him with an opportunity to send his boots home; Appellant failed to allege that the Department had engaged in any conduct prohibited by the UTPCPL, such as deceptive representation or the breach of a warranty; and the Department and its employees are protected by sovereign immunity from claims based on alleged intentional torts.

In a two-page filing, the Commonwealth Court sustained the Department's demurrer and dismissed the Petition. See Sutton v. Bickell , No. 314 M.D. 2018, Memorandum and Order, slip op . at 1 (Pa. Cmwlth. Nov. 28, 2018). The court explained that, per the Petition's factual averments: the confiscation of Appellant's boots was accomplished pursuant to statewide policy; Appellant lacked a protected property interest in possessing Timberland boots while in prison; DC-ADM 815 did not create any rights in any person; the Department has broad discretion to modify its policies to address evolving security needs; Appellant failed to plead facts sufficient to support a claim of conversion and, moreover, the Department is protected by the doctrine of sovereign immunity from liability for intentional torts; and Appellant failed to plead facts sufficient to set forth a claim under the UTPCPL. See id. at 2. In stating its holdings with regard to due process and sovereign immunity, the court relied on its recent decision in the O'Toole matter, which had been published in the interim. See O'Toole v. Dep't of Corr. , 196 A.3d 260 (Pa. Cmwlth. 2018).

II. Arguments and analysis

Because this is an appeal from an order sustaining preliminary objections in the nature of a demurrer, Appellant's well-pleaded factual allegations will be accepted as true for purposes of the following discussion. See Sernovitz v. Dershaw , 633 Pa. 641, 645 n.2, 127 A.3d 783, 785 n.2 (2015). As described above, Appellant set forth several causes of action in the Petition. The argument section of his brief to this Court also includes a claim under the Eighth Amendment and a brief reference to the Equal Protection Clause. These issues, however, have not been preserved for review. See Pa.R.A.P. 302(a). Thus, we will only address Appellant's arguments based on the Due Process Clause, see U.S. CONST. , amend XIV, § 1 (stating that no state may "deprive any person of life, liberty, or property, without due process of law"), conversion, and the UTPCPL.

A. Procedural due process

Appellant initially argues that the Department's actions failed to comport with due process requirements attendant to the deprivation of a property right. See Brief for Appellant at 6-7. Procedural due process "is a flexible concept which ‘varies with the particular situation.’ " Bundy v. Wetzel , 646 Pa. 248, 258, 184 A.3d 551, 557 (2018) (quoting Zinermon v. Burch , 494 U.S. 113, 127, 110 S. Ct. 975, 984, 108 L.Ed.2d 100 (1990) ). Its "central demands" are "an ‘opportunity to be heard at a meaningful time and in a meaningful manner.’ " Id. (quoting Commonwealth v. Maldonado , 576 Pa. 101, 108, 838 A.2d 710, 714 (2003) ). Such requirements, however, "are implicated only by adjudications, not by state actions that are legislative in character." Small v. Horn , 554 Pa. 600, 613, 722 A.2d 664, 671 (1998).

Adjudicative agency actions are those that affect one individual or a few individuals, and apply existing laws or regulations to facts that occurred prior to the adjudication. Agency actions that are legislative in character result in rules of prospective effect and bind all, or at least a broad class of, citizens.

Id. at 613 n.12, 722 A.2d at 671 n.12 (citing 2 Pa.C.S. § 101 (defining administrative law terms)).

In Small , the plaintiffs challenged two bulletins issued by the Department, which modified DC-ADM 815 so that all inmates were required to wear clothing in the nature of prison uniforms rather than civilian clothing. These changes were made in an effort to enhance prison security and public safety inasmuch as civilian clothing had played a role in several inmates escaping during the prior month. The Small Court concluded that the bulletins were legislative in character and did not constitute an adjudication, meaning that the plaintiffs could not succeed on a procedural due process theory. See id. at 605, 722 A.3d at 667.

Small controls the outcome of the present claim. Like the bulletins at issue in that matter, the Memorandum sets forth rules of prospective effect that bind a broad class of individuals in Pennsylvania state prisons. It does not apply existing laws or regulations in a manner that affects only one or several citizens. Thus, procedural due process principles are not implicated by the Petition's averments.

B. Substantive due process

Appellant also forwards a substantive due process argument. He maintains that the policy embodied in the Memorandum is invalid under due process norms because it deprives him of his property rights and it is unrelated to a genuine penological interest. He argues that it represents an "exaggerated response" to the killing of a prison guard by a single inmate. Turner v. Safley , 482 U.S. 78, 90, 107 S. Ct. 2254, 2262, 96 L.Ed.2d 64 (1987).

Under the heading of "substantive due process," the Due Process Clause not only guarantees a fair process, but "provides heightened protection against government interference with certain fundamental rights and liberty interests." Commonwealth v. Bullock , 590 Pa. 480, 491, 913 A.2d 207, 214 (2006) (quoting Washington v. Glucksberg , 521 U.S. 702, 719-20, 117 S. Ct. 2258, 2267, 138 L.Ed.2d 772 (1997) ). With that said, prison administrators are "afforded wide-ranging deference in adopting and carrying out policies...