J. F. Nole v. G. W. Patrick, et al. (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Frederick Nole, Appellant v. George W. Patrick, Rendall Britton, Frazier Blake and John Bailey BEFORE: : : : : : : : : No. 1779 C.D. 2007 Submitted: February 8, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: May 15, 2008 John Frederick Nole (Nole) appeals pro se from a final order of the Court of Common Pleas of Clearfield County (trial court) dismissing his Complaint. In challenging the dismissal, Nole also challenges the dismissal of his Motion for Preliminary Injunction, in which he asked the court to enjoin the Department of Corrections (Department) from placing two inmates in a cell designed to hold one inmate. In the final order, the trial court dismissed with prejudice Nole s Complaint against four employees of the Department who worked at SCI-Houtzdale: George W. Patrick (Patrick), Rendall Britton, Frazer Blake (Blake) and John Bailey (Bailey) (collectively, Respondents). The Complaint accused Respondents of recklessly endangering Nole by requiring him to share a cell with a cellmate. Nole has been an inmate for thirty-seven years. For thirty-two of those years he was housed in a single cell without a cellmate (single-cell status, or single-celling). In September 2003, Nole was transferred to SCI-Houtzdale and assigned to a cell with a cellmate (double cell status, or double-celling). In late 2006, Nole requested that he be evaluated for single-cell status. Officials at SCI-Houtzdale denied Nole s request. Nole appealed, but did not receive a response. Bailey later informed Nole that he did not meet the criteria for single-cell status, and that he had harmed his case by placing forged documents in a counselor s file in an apparent attempt to manipulate the housing evaluation. Nole appealed this decision to the Office of Inmate Grievances and Appeals, which subsequently denied his appeal. In May 2007, Nole filed a Complaint against the Respondents alleging that, by double-celling him, they had recklessly and negligently endangered his life. Nole made other allegations, including that: the Department s policy of double-celling inmates created a volatile atmosphere resulting in conflict and retaliation between cellmates; the policy is discriminatorily enforced; Nole himself should qualify for single-cell status based on his seniority, the length of time he has spent without a cellmate, and good behavior; and Respondents have failed to follow the Department s housing policy and its compatibility procedures.1 Nole argued that by failing to 1 A Department Administrative Memorandum on double-celling states that the Department is philosophically opposed to double-celling inmates. (Memorandum from Glen R. Jeffes, Department Commissioner, to Department Superintendents 1 (October 8, 1985) (Housing Memo).) The Housing Memo states that double-celling is a result of overcrowding and will continue until there is sufficient space to single-cell inmates. (Housing Memo at 1.) However, the Housing 2 adhere to the Department s compatibility standards, Respondents are double-celling inmates who should not be housed together, for example violent inmates with nonviolent inmates.2 Nole argued that as a result of this failure, he fears being victimized by a cellmate. Nole alleged that Respondents have retaliated against him for his repeated complaints regarding their failure to adhere to the Department policies on double-celling. Finally, Nole alleged that Respondents violated Sections 2703, 2704 Memo provides that when double-celling is necessary, an institution should attempt to choose inmates who will be compatible for involuntary double-celling. (Housing Memo at 2.) The memo lists the following factors for consideration: a. Familial relationship, e.g., brothers, cousins b. Age c. Race and ethnic biases of the inmates to be housed together d. Interests e. Geographic identity f. Length of sentence g. Program assignment (job, education, etc.) h. Program level i. Security needs (escape, substance abuse, violence, deviate sexual acts, etc.) j. Behavioral disposition and attitude k. Group identification (gangs, etc.) l. Sophistication (prior incarceration, etc.) m. Other factors deemed appropriate by the institution. (Housing Memo at 2-3.) Additionally, the Housing Memo lays out the following procedure for double-celling inmates: (1) inmates are identified as candidates for double-celling either by staff or by the inmate s own request; (2) staff interview the inmate to determine his willingness and possible issues; (3) staff approve the inmate for double-celling after consideration of the relevant criteria; (4) the inmate is oriented and informed of the rules he is required to follow with regard to the double-celling and of the procedures for requesting that his double-celling be terminated; (5) monitoring, including supervision and interviews, to identify and correct problems. (Housing Memo at 3.) 2 Specifically, Nole alleged that Respondents place young with old; smokers with nonsmokers, muslums [sic] with christians [sic], educated with uneducated, diseased with healthy . . . . (Complaint ¶ 21.) 3 and 2705 of the Crimes Code, 18 Pa. C.S. §§ 2703, 2704-053 by denying him singlecell status while single-celling less senior inmates. On July 2, 2007, Respondents filed Preliminary Objections to Nole s Complaint. In response to Nole s civil claims for recklessness, negligence, and infliction of emotional distress the Respondents raised sovereign immunity as a defense. In response to Nole s claims that Respondents violated provisions of the Crimes Code, Respondents objected that, per Rule 506 of the Pennsylvania Rules of Criminal Procedure, private criminal complaints must be submitted to a Commonwealth attorney for approval before the charge may be brought to a trial court. With regard to other various allegations in Nole s Complaint, Respondents objected that such allegations were insufficiently pled, as Nole did not specify what statute or statutes they had violated. Respondents also objected that Nole had no constitutionally-protected right to single-cell status. Finally, Respondents objected that life-sentenced inmates were not a protected class and that Nole had failed to allege facts which would show that he was being treated disparately from similarlysituated inmates.4 On July 6, 2007, Nole filed a Motion to Amend Complaint, without attachments, seeking the trial court s permission for leave to amend his Complaint. Without ruling on Nole s motion, the trial court ordered both parties to file briefs 3 These sections are provisions under the Crimes Code. Section 2703 defines the crime of [a]ssault by prisoner ; section 2704 defines the crime of [a]ssault by life prisoner ; and section 2705 defines the crime of [r]ecklessly endangering another person. 18 Pa. C.S. §§ 2703, 2704-05. 4 Although Nole only enumerated one count in his Complaint, he made a number of different arguments and allegations. Respondents Preliminary Objections address these arguments as well as the enumerated count. 4 regarding the Preliminary Objections within thirty days. Nole did not file a brief in opposition to Respondents Preliminary Objections. Instead, on July 30, 2007, he filed an Amended Complaint and Motion for Preliminary Injunction. The allegations of the Amended Complaint were nearly identical to those of the original Complaint; however, Nole did attach ten exhibits, labeled A through J.5 5 Exhibit A consists of documents regarding Nole s request to be classified as a Z-code, a classification requiring single-cell status. These documents include: Nole s written request that his classification be reevaluated; an Official Inmate Grievance form stating that Nole s request to be reevaluated for Z-Code status had been unreasonably rejected; a grievance rejection form indicating that Nole had provided nothing to substantiate the need for Z code status ; and a letter from Nole to Patrick, dated December 13, 2006 requesting that Nole s grievance be allowed to proceed. Exhibit B is a copy of the December 14, 2006 letter from Nole to Patrick which was included in Exhibit A. Exhibit C consists of documents relating to a subsequent grievance by Nole objecting to the denial of his request to be reevaluated for Z-Code status. These documents include: Nole s Official Inmate Grievance form; a Grievance Rejection form stating that the issue presented by Nole s grievance had already been addressed; a letter from Nole to Patrick, dated December 29, 2006, objecting to the denial of Nole s grievances; a letter from Patrick to Nole, dated January 4, 2007, stating that he agreed with the disposition of Nole s grievances; a letter from Nole to Sharon M. Burks, Department s Chief Grievance Officer, dated January 8, 2007, requesting that his grievances be processed; and a letter from the Department Secretary s Office of Inmate Grievances & Appeals to Nole stating that Nole had failed to fully comply with Department regulation DC-ADM 804, which requires that the appeal of a grievance to final review must include photocopies of, among other documents, the Initial Review. Exhibit D is the Housing Memo. Exhibit E consists of two letters. The first is from Nole s sister, Loretta Nole, to Jeffrey Beard (Beard), Secretary of the Department, dated December 20, 2006, disputing that Nole is an escape risk, and arguing that he should be single-celled. The second is from Beard to Loretta Nole, dated January 8, 2007, informing her that Nole s Z-Code determination was made by SCIHoutzdale personnel and that she should contact them. Exhibit F consists of two letters. The first is from Nole s wife, Susan Beard-Nole (BeardNole) to Beard, dated April 4, 2007, discussing generally the inequity of Nole not being singlecelled, as well as perceived problems with Department s policy regarding drug testing. The second is a letter from Beard to Beard-Nole, dated April 16, 2007, stating that Nole did not meet criteria to be single-celled, and that the Department s drug testing procedures are adequate. Exhibit G, likewise, consists of two letters. The first is from Loretta Nole to Patrick, dated March 21, 2007, inquiring why Nole was single-celled without being classified as a Z-Code in previous institutions, while officials at SCI-Houtzdale would not single-cell him unless he was 5 On July 31, 2007, Respondents filed their brief in support of their Preliminary Objections. On August 6, 2007, Nole filed a Motion to Moot Previous Filings in an attempt to compel Respondents to respond to his Amended Complaint. On August 8, 2007, the trial court sustained Respondents Preliminary Objections and dismissed Nole s Motion for Preliminary Injunction and dismissed, with prejudice, Nole s Complaint. The trial court found that no legitimate purpose would be served by permitting Nole to amend his Complaint. Nole brings the present appeal.6 In his brief to this Court, Nole argues that: (1) the trial court abused its discretion by dismissing his Complaint without allowing him to amend it; (2) the trial court showed bias against him by improperly adopting the statements of law and arguments contained in Respondents brief on their Preliminary Objections; (3) the classified as a Z-Code. The Second is from Patrick to Loretta Nole, dated April 4, 2007, explaining that space in the prison is limited and that inmates are only single-celled when necessary, in order to conserve space. Exhibit H is a letter from Nole to Blake, dated March 4, 2007, arguing that Nole deserves to be single-celled based on his long incarceration without a cellmate, his service to prison society and his relatively good behavior. A signed, handwritten note from Blake to Nole, dated March 5, 2007 at the bottom of the letter, informs Nole that he will not be single-celled. Exhibit I is a form request from Nole to Patrick, dated March 7, 2007, asking why he was moved off his unit soon after requesting to know why he did not qualify for single-cell status. A reply from Patrick on the form states, [a]ny contributions you might make are overshadowed by your neediness. Due to the overpopulation I do not have the luxury of handing out single cells. You don t qualify for a Z-Code. Perhaps you will have better luck at another facility. (Complaint, Ex. I.) Exhibit J is a table of custody levels and program codes correlated with custody levels. Notably, both A- and Z-Codes provide for single-cell assignments. A-Codes are long-term offenders who are subject to minimum or medium supervision. Single-cell status for A-Codes is restricted based on availability and good behavior. 6 Where a trial court dismisses a complaint based on preliminary objections, this Court s review is limited to determining whether there has been an error of law or an abuse of discretion. Jones v. City of Philadelphia, 893 A.2d 837, 842 (Pa. Cmwlth. 2006). 6 trial court erred in not allowing discovery; and (4) the trial court violated Rule 1531 of the Pennsylvania Rules of Civil Procedure by failing to hold a hearing on Nole s Motion for Preliminary Injunction prior to dismissing it.7 We will first address Nole s argument that the trial court erred in dismissing his Complaint without allowing discovery where disputed facts were at issue. We note that Nole did not request discovery prior to the dismissal of his Complaint. We fail to see how the trial court erred in not granting Nole discovery he never requested. Second, Nole argues that the trial court erred by not permitting him to amend his Complaint. Citing Miller v. Stroud, 804 A.2d 749 (Pa. Cmwlth. 2002) and Mistick, Inc. v. City of Pittsburgh, 646 A.2d 642 (Pa. Cmwlth. 1994), Nole argues that because amendments to pleadings are to be liberally permitted, and because his amendment would not have surprised or prejudiced Respondents, the trial court abused its discretion by not permitting him to amend his complaint. We disagree. Rule 1028(c) of the Pennsylvania Rules of Civil Procedure states that [a] party may file an amended pleading as of course within twenty days after service of a copy of preliminary objections. Pa. R.C.P. No. 1028(c)(1) (emphasis added). Here, Nole received Respondents Preliminary Objections on July 3, 2007. Under Rule 1028, he had until July 23, 2007 to file his Amended Complaint as of course. However, he instead filed a motion to amend his complaint. Nole did not file his Amended Complaint until 7 days after the 20 day period had run. If a party does not file an amendment as of course within the 20 day period permitted by Rule 1028, then the 7 In the interest of clarity we discuss Nole s arguments in a different order than he lays them out in his brief. 7 general rule on amendment, Pa. R.C.P. No. 1033, applies. Rule 1033 states that a party may amend his pleading with the consent of the adverse party or by leave of court . . . . Pa. R.C.P. No. 1033. While the decision whether to grant leave to amend is within the discretion of the trial court, and will not be overturned absent a clear abuse of discretion, leave to amend should generally be allowed, particularly where preliminary objections are sustained. Koresko v. Farley, 844 A.2d 607, 618 (Pa. Cmwlth. 2004); Jones, 893 A.2d at 846; see also Pa. R.C.P. No. 126 (stating that the Rules of Civil Procedure must be liberally construed to promote justice and judicial efficiency; procedural defects which do not impair parties substantial rights may be disregarded). However, it is not an abuse of discretion for a court to deny leave to amend where it appears reasonably likely that such amendment will be futile. Koresko, 844 A.2d at 618. Here, the trial court dismissed Nole s Complaint with prejudice, stating that permitting Nole to amend would serve no legitimate purpose. After examining Nole s Amended Complaint, the amendment he alleges the trial court should have allowed him to make, we are in a position to definitively confirm that allowing Nole to amend would not only likely be futile, but would have, in fact, been futile. Respondents put forth five preliminary objections. They first raised sovereign immunity as a defense to Nole s allegations of reckless endangerment, negligence, and infliction of emotional distress. Article I, Section 11 of the Pennsylvania Constitution, provides in part that [s]uits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct. Pa. Const. art I, § 11. Pursuant to Section 11, the Legislature has directed 8 that the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity. 1 Pa. C.S. § 2310. While the Legislature has enumerated several exceptions under which Commonwealth parties may be liable,8 the allegations of Nole s Complaint and Amended Complaint do not even arguably implicate these exceptions. Nowhere in his Complaint or Amended Complaint does Nole allege facts that would indicate that Respondents were not acting within the scope of their respective duties when they took the actions of which Nole complains. Indeed, the gravamen of Nole s Complaint is that he was harmed by actions the Respondents performed in the course of their duties as officials at SCI-Houtzdale. For this reason, this objection would have been fatal to these claims even as they were set forth in Nole s Amended Complaint and, therefore, in regard to this preliminary objection, permitting Nole to amend would have been futile. Respondents second preliminary objection is that, under Pa. R. Crim. P. 506, a private criminal complaint must be submitted to a Commonwealth attorney for approval before it may be filed in a trial court. In both his Complaint and his Amended Complaint Nole alleges that Respondents violated provisions of the Crimes Code. Nole does not allege, either in his Complaint or in his Amended Complaint, that he submitted these criminal charges to a Commonwealth attorney. Even had the trial court allowed Nole to amend his Complaint, Nole s charges against the 8 These exceptions include: vehicle liability; medical professional liability; care, custody and control of personal property; commonwealth real estate, highways and sidewalks; potholes and other dangerous conditions; care, custody or control of animals; liquor store sales; National Guard activities; and toxoids and vaccines. 42 Pa. C.S. § 8522(b). 9 Respondents would have failed under Rule 506. Therefore, leave to amend would have been futile. Respondents third preliminary objection states that Nole did not plead with sufficient specificity his allegations that Respondents violated Department policy. Pa. R.C.P. No. 1019 requires that a complaint include all material facts necessary to support a claim. Here, Nole broadly alleges that Respondents violated the Department policy laid out in the Housing Memo.9 Nole does not, however, specify how Respondents violated this policy. For example, Nole did not allege, in his Complaint or his Amended Complaint, that he is being or has been housed with a young inmate, a violent inmate, or an inmate with incompatible religious beliefs. Nor does either complaint allege that Nole has suffered any concrete harm as a result of the Respondents alleged failure to follow its policy. Accordingly, permitting Nole to amend his Complaint with regard to this objection would have been futile. Respondents fourth and fifth preliminary objections argue that, insofar as Nole makes constitutional claims, these claims fail because there is no constitutionallyprotected right to single-cell status and because individuals sentenced to life imprisonment do not constitute a protected class. As Respondents pointed out in their Preliminary Objections, the United States Supreme Court held in Rhodes v. Chapman, 452 U.S. 337, 347-48 (1981), that double-celling, in and of itself, does not violate the Eighth Amendment prohibition against cruel and unusual punishment. 9 Nole s allegations included violations such as housing inmates of different religions together and old inmates with young inmates. We note that these violations were not violations of the policy s more mandatory provisions, but rather related to factors that administrators were instructed to consider. (See Housing Memo at 2.) 10 Likewise, relying on Rhodes, this Commonwealth s Supreme Court, in Jackson v. Hendrick, 509 Pa. 456, 503 A.2d 400 (1986), held that single-celling was not constitutionally required. Rather, the Court held that, in determining whether prison conditions violate the Eight Amendment, a court must determine whether those conditions taken as a whole, either inflict unnecessary or wanton pain or amount to grossly disproportionate punishment for the crime for which the prisoner has been incarcerated. Id. at 469, 503 A.2d at 406. As discussed above, Nole s Complaint and Amended Complaint do not articulate any concrete facts which would indicate that he is actually being subjected to dangerous or otherwise unconscionable conditions. Therefore, because double-celling does not inherently violate the Eighth Amendment, Nole s claims on this basis fail and amendment of his Complaint would have been futile. Likewise, insofar as Nole bases any of his constitutional claims on the theory that he is being discriminated against as a life-sentenced prisoner, he does not cite, nor was this Court able to locate, any controlling case holding life-sentenced inmates to be a protected class. Moreover, Nole did not allege, either in his Complaint or his Amended Complaint, any specific facts which would show that he was being treated differently from other inmates similarly situated to him; therefore, the trial court did not err in finding that leave to amend would have been futile with regard to these claims. For these reasons, the trial court did not err in withholding from Nole leave to amend his Complaint. We next consider Nole s argument that the trial court erred by adopting in whole the statements of law and arguments contained in Respondents Preliminary Objections. In its Opinion, giving justification for its decision to uphold Respondents Preliminary Objections, the trial court stated only that [t]his Court has 11 reviewed the statements of law and precedent set forth in the [Respondents ] Preliminary Objections and finds the same to be both well reasoned and correct. Therefore, the Court adopts the statements of law and arguments contained therein. (Trial Ct. Op. at 3.) Nole argues that this adoption by the trial court held him to a higher standard than that to which a pro se litigant should be held and violated the Supreme Court s decision in Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167 (1999). We disagree on both points. While a court should not penalize a pro se litigant for minor procedural infractions which do not affect a party s substantive rights, a pro se litigant is still subject to the same rules of procedure as a party represented by counsel and has no greater right to be heard. Peters Creek Sanitary Authority v. Welch, 545 Pa. 309, 315 n.5, 681 A.2d 167, 170 n.5 (1996); Cassell v. Shellenberger, 514 A.2d 163, 165 (Pa. Super. 1986). Moreover, a party who represents himself assumes, to a degree, the risk that his lack of legal training will prove his undoing. Welch, 545 Pa. at 315 n.5, 681 A.2d 167, 170 n.5 (citing Vann v. Unemployment Compensation Board of Review, 508 Pa. 139, 148, 494 A.2d 1081, 1086 (1985)). By adopting the legal arguments of Respondents Preliminary Objections, the trial court was not punishing Nole for representing himself, but was recognizing that, in fact, Respondents arguments conformed to the law and were legally correct. Nole s reliance on Williams for the principle that it is error for the trial court to adopt the argument in a party s brief or filing as its opinion is misplaced. The Supreme Court s ruling in Williams turned on the fact that Williams involved a trial 12 court s post-conviction review of a death sentence, as the Court explicitly acknowledged: this Court has not prohibited the adoption of portions of a party's arguments in support of a judicial disposition. Certainly Pa. R.A.P. No. 1925(a) provides a degree of flexibility in this regard, permitting trial judges, where appropriate, to specify places in the record where reasons may be found for their decisions. We cannot, however, in this postconviction case involving a review of the propriety of a death sentence, condone the wholesale adoption by the post-conviction court of an advocate's brief. Williams, 557 Pa. at 224-25, 732 A.2d at 1176. Indeed, as the Court in Williams noted, it is generally permissible for a trial court to adopt a party s argument as the court s opinion, so long as the court specifies the location in the record where the reasoning for the court s decision may be found. See, e.g., Miller Development Corp. v. Union Township Municipal Authority, 666 A.2d 391, 395 (Pa. Cmwlth. 1995) (holding that trial court did not err in adopting by reference the arguments and statements of law in a party s brief as the basis for its decision). Here, the trial court specified the location in the record where the reasoning for its decision could be found: Respondents Preliminary Objections. As we held in Miller Development Corp., this sort of incorporation by reference, while perhaps not ideal, is not error. Finally we examine Nole s argument that the trial court erred in dismissing his Motion for Preliminary Injunction without holding a hearing or considering the immediate, irreparable injuries that might have resulted from double-celling. In his Motion for Preliminary Injunction, Nole asked the trial court to enjoin Respondents from double-celling inmates without following the compatibility guidelines outlined in the Housing Memo. 13 In order to receive a preliminary injunction, the moving party has the burden of showing that each of the following elements is satisfied: (1) the activity of the defendant is actionable ; (2) [t]he relief is necessary to prevent immediate and irreparable harm which cannot be compensated by damages ; (3) [g]reater injury will result by refusing it than by granting it ; and (4) [g]ranting the injunction restores the parties to the status as it existed immediately prior to the alleged wrongful conduct. Hanover Assoc. v. Township of Hanover, 707 A.2d 1178, 1182 (Pa. Cmwlth. 1998) (citing Valley Forge Historical Soc y v. Washington Mem l Chapel, 493 Pa. 491, 500, 426 A.2d 1123, 1128 (1981)); Norristown Mun. Waste Auth. v. West Norriton Township Mun. Auth., 705 A.2d 509, 511-12 (Pa. Cmwlth. 1998). In support of his Motion for Preliminary Injunction, Nole attached four affidavits from inmates at SCI-Houtzdale. These affidavits described the inmates experiences with double-celling at SCI-Houtzdale. The affiants stated that, as a result of Respondents failure to follow the Department s compatibility guidelines, they experienced mental and emotional stress due to the potential for violence. While the affidavits discussed the inmates fears of violence, they did not provide any objective basis for the trial court to conclude that immediate and irreparable harm was likely to occur. Therefore, Nole failed to satisfy the second element set forth above. Nole argues that, pursuant to Pa. R.C.P. No. 1531, the trial court was required to hold a hearing on his Motion for Preliminary Injunction. This is incorrect. Rule 1531 does not require a trial court to hold a hearing on every motion for preliminary injunction. Sossong v. Shaler Area School District, ___ A.2d ___, No. 979 C.D. 14 2007, 2008 WL 596766, at *4 (Pa. Cmwlth., Filed March 6, 2008) ( Although a hearing is preferred, there is no absolute duty on a court to grant an evidentiary hearing on an application for a preliminary injunction. ); Pa. R.C.P. No. 1531 ( A court shall issue a preliminary or special injunction only after written notice and a hearing . . . . ) (emphasis added). Here, the trial court properly dismissed Nole s Motion for Preliminary Injunction where he failed to show that immediate, irreparable harm would result if the injunction were not granted. Additionally, as discussed above, Nole s claims lacked merit, providing the trial court another basis upon which to deny his Motion for Preliminary injunction. For these reasons, we affirm the decision of the trial court. RENÃ E COHN JUBELIRER, Judge 15 IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Frederick Nole, Appellant v. George W. Patrick, Rendall Britton, Frazier Blake and John Bailey : : : : : : : : No. 1779 C.D. 2007 ORDER NOW, May 15, 2008, the order of the Court of Common Pleas of Clearfield County in the above-captioned matter is hereby affirmed. RENÃ E COHN JUBELIRER, Judge

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