D. D. Richardson v. Corporal Yancik, et al. (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA David D. Richardson, Appellant v. Corporal Yancik and Counselor Broomall BEFORE: : : : : : : : No. 2057 C.D. 2007 Submitted: April 18, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: June 11, 2008 David D. Richardson (Appellant) appeals pro se from the order of the Court of Common Pleas of Chester County (trial court) dismissing with prejudice Appellant s complaint filed pursuant to 42 U.S.C. §1983 against three Chester County Prison employees (Appellees). At the time this controversy began, Appellant was a pretrial detainee incarcerated at the Chester County Prison (Prison). Pretrial detainees are those individuals who the government has probable cause to believe have committed crimes. Gerstein v. Pugh, 420 U.S. 103 (1975). They are confined pending trial either because there is cause to believe that they are dangerous or because they do not make bail. Johnson-El v. Schloemehl, 878 F.2d 1043 (8th Cir. 1989). Appellant challenges the Prison s internal disciplinary procedures as applied to him and asserts that he was denied due process during his disciplinary hearing. Appellant s Complaint alleged: 2. David D. Richardson is the Plaintiff [Appellant] in the above matter and during the relevant period in time was confined as a pretrial detainee at the Chester County Prison ¦ *** 6. On May 24, 2005, Plaintiff [Appellant] received an institutional misconduct citation for extortion, wherein it was alleged that on said date, at 8:34 a.m., in L-Block Dayroom, Odd-Side, Plaintiff [Appellant] extorted a fellow inmate. 7. On June 3, 2005, Plaintiff [Appellant] appeared for a disciplinary hearing before the Defendants [Appellees]. 8. Defendant Cochlin read the reports filed by Lt. Bohn and Counselor Fletcha. 9. Plaintiff [Appellant] informed the Defendants [Appellees] that none of the evidence presented demonstrated that Plaintiff [Appellant] engaged in the charged conduct on the date, time and place as contained in said misconduct citation. 10. In response to Plaintiff s [Appellant] claim, Defendant Yancik stated, well, there must have been something going on prior thereto. 11. In response to Defendant Yancik s conjecture as aforestated (sic), Plaintiff [Appellant] informed the Defendants [Appellees] that Plaintiff [Appellant] was not cited for engaging in something prior thereto, but was cited for engaging in specific conduct, on a specific date, time and place. *** 2 13. Plaintiff [Appellant] ¦[was] found guilty as charged and moved from general population to disciplinary confinement to serve (30) days isolation. 14. The reasons stated by the Defendants [Appellees] regarding the facts relied upon and their action taken was (sic) the officer s report and an unspecified inmate. 15. While in disciplinary confinement, Plaintiff [Appellant] was denied all institutional privileges and was confined to his cell approximately 23 out of 24 hours per day. Complaint ¶¶2, 6-11, 13-15 at 1-3 (Emphasis added). Appellant asserted that he was denied due process of law as guaranteed by the 14th Amendment to the United States Constitution and 37 Pa. Code §95.2401, where Appellees orally amended the charged offense during the course of the disciplinary hearing as being prior thereto. Complaint ¶19 at 4. Appellant asserted that he was entitled to written notice of the charges at least twenty-four hours prior to the hearing. Complaint ¶20 at 4. He claimed he did not receive adequate written notice of the changes to enable him to prepare a defense because the Department failed to inform him, in advance, that the disciplinary board would consider evidence of conduct which took place before May 24, 2005. Appellant sought punitive and compensatory damages for each day he was confined in isolation and $25 per hour for his pro se legal work. 1 The Department of Corrections regulations at 37 Pa.Code §95.240 set forth the following minimum requirements applicable to inmate disciplinary procedures: (1) notice in writing of the offense charged; (2) opportunity to present a defense before an impartial party or board; and (3) a written statement of the fact finders as to the evidence relied on. 3 Appellees filed a preliminary objection in the nature of a demurrer, contending that Appellant failed to state a claim upon which relief could be granted. The trial court dismissed his complaint with prejudice concluding that since he was provided with a written notice and a hearing, he was provided with the minimum requirements of due process set forth in 37 Pa. Code §95.240. This appeal followed.2 1. Whether the Original Charge was Orally Amended at the Hearing As an initial matter, this Court does not agree that Corporal Yancik impermissibly amended the charge at the disciplinary hearing. The facts alleged in the complaint do not support this conclusion. According to the complaint, Appellant was notified in writing that he was charged with extortion on a specific date, time and place. At the disciplinary hearing, Appellant argued that the evidence failed to demonstrate that he engaged in extortion on May 24, 2005. Corporal Yancik responded to the effect that, if that was the case, then there must have been some conduct towards the commission of the extortion that took place before May 24, 2005. 2 This Court reviews a trial court's order sustaining preliminary objections and dismissing an action for errors of law or an abuse of discretion. R.H.S. v. Allegheny County Dep't of Human Servs., 936 A.2d 1218 (Pa. Cmwlth. 2007). All well-pled facts in the action are accepted as true, as well as any reasonable inferences deducible from those facts. Id. Preliminary objections in the nature of a demurrer should be sustained only where the pleadings are clearly insufficient to establish a right to relief; any doubt must be resolved in favor of overruling the demurrer. Id. 4 It is Appellant s position, based on these scant averments, that he was denied due process because Corporal Yancik orally amended the charge and he was found guilty based on a finding that the extortion took place at a date and time other than that cited in the original misconduct citation.3 Contrary to Appellant s assertion, Corporal Yancik s remark neither broadened nor changed the nature of the charge, nor did it modify the underlying facts upon which the original disciplinary charge was based.4 Based on what is alleged in the complaint, the remark referred to the same victim and referenced conduct which occurred prior to the actual extortion. Corporal Yancik s reference to something going on prior thereto was clearly a reference to conduct which was related to and led to the commission of the extortion on May 24, 2005. In an inmate disciplinary proceeding, the purpose of the advance written notice is not to specify each and every fact relating to the offense. Rather, its purpose is to fairly and sufficiently inform the inmate of the charge against 3 This Court notes that neither the written notice of the charges nor the transcript of the disciplinary hearing was attached to the complaint. 4 Theft by extortion is defined at 18 Pa.C.S. § 3923 as follows: A person is guilty of theft if he intentionally obtains or withholds property of another by threatening to: (1) commit another criminal offense; (2) accuse anyone of a criminal offense; (3) expose any secret tending to subject any person to hatred, contempt or ridicule; (4) take or withhold action as an official, or cause an official to take or withhold action; (5) bring about or continue a strike, boycott or other collective unofficial action, if the property is not demanded or received for the benefit of the group in whose interest the actor purports to act; (6) testify or provide information or withhold testimony or information with respect to the legal claim or defense of another; or (7) inflict any other harm which would not benefit the actor. 5 which he must defend. This requirement is similar to the constitutional requirements for a bill of information or criminal indictment that the citation must be sufficient to advise the defendant of the nature of the offense charged, notify him of the pending prosecution and afford him a chance to defend himself. Commonwealth v. Lopata, 754 A.2d 685 (Pa. Super. 2000). This is not a situation where an inmate was confronted at his disciplinary hearing with an additional unrelated charge of which he had no prior knowledge. According to Appellant s complaint, approximately ten days before the disciplinary hearing, he was given a copy of the institutional misconduct citation. He was notified he was accused of extorting a fellow inmate. He was allowed to present evidence and make a statement at the hearing. Corporal Yancik s comment at the hearing, which merely suggested that Appellant had taken steps before May 24, 2005, in furtherance of the commission of the extortion, did not amend the charge and Appellant has failed to identify any prejudice. 2. Whether Appellant Plead Facts Sufficient to Show a Liberty Interest Even if Appellant had alleged facts sufficient to establish that he did not receive prior written notice of the charge, Appellant failed to plead facts that were necessary to show he had a liberty interest in being free from disciplinary segregation. Appellant argues that he did assert a state-created liberty interest, i.e., he should not have been punished unless he was provided with written notice of 6 the charged offense pursuant to the nondiscretionary language contained in 37 Pa. Code §95.240(2) ( [d]iscipline may not be imposed unless the prisoner has been informed of the offense charged in writing ¦ ). Appellant asserts that this regulation bestows upon him a protected liberty interest that entitles him to procedural protections in Wolff v. McDonnell, 418 U.S. 539 (1974).5 Appellant relies on Todaro v. Bowman, 872 F.2d 43 (3d Cir. 1989), which held that state laws and nondiscretionary prison regulations, such as those contained in 37 Pa. Code §95.240(2), may give rise to a state-created liberty interest protected by the Fourteenth Amendment. However, as the United States District Court for the Eastern District of Pennsylvania noted in Evans v. Vaughn, 1998 WL 135096 (E.D. Pa. 1998),6 Todaro is no longer good law in light of the United States Supreme Court s landmark decision in Sandin v. Conner, 515 U.S. 472 (1995), which modified the standard for determining the existence of a state-created liberty interest. Sandin re-focused the inquiry from the content of the regulations to the nature of the deprivation imposed on the inmate. Sandin, 515 U.S. at 481. Absent atypical and significant hardship, a change in the conditions of confinement simply does not inflict a cognizable injury that merits constitutional protection, regardless of the motivation of the official when making the change. Id. at 484-86. The language of state laws or prison regulations no longer creates a 5 Wolff identified the procedural requirements prison officials must adopt to satisfy due process when depriving a prisoner of various liberty interests, including deprivation of sentence credits and confinement to segregation. 6 Not reported in F.Supp. 7 liberty interest protected by the Due Process Clause. When analyzing due process claims, courts must now focus on the nature of the deprivation itself, not on the regulations, to ascertain whether a liberty interest exists in connection with the imposition of disciplinary penalties. Sandin was very similar to the facts in this controversy, sans the fact that Appellant here was a pretrial detainee; not a convicted and sentenced prisoner. In Sandin, DeMont Conner (Conner), a convicted and sentenced prisoner, was accused of resisting a strip search and directing obscenities at a guard. He was given a disciplinary hearing but not permitted to call witnesses on his behalf. He was found guilty of the charge and confined to his cell for thirty days. The charges were eventually overturned. Conner filed an action based on 42 U.S.C. §1983, claiming that prison officials deprived him of procedural due process when an adjustment committee refused to allow him to present witnesses during a disciplinary hearing and then sentenced him to segregation for misconduct. The District Court granted summary judgment in favor of the prison officials. The Court of Appeals for the Ninth Circuit reversed the judgment. The Court of Appeals based its conclusion on a prison regulation that authorized prison officials to find guilt when a charge of misconduct was supported by substantial evidence. The United States Supreme Court rejected the notion that mandatory language in prison regulations is the appropriate focus to determine the existence of a state-created liberty interest. Rather, the United States Supreme Court reasoned that the proper focus is the nature of the deprivation. Sandin, 515 U.S. 8 at 481. In Sandin, like in this case, the nature of the deprivation was segregated confinement. The Court recognized that under certain circumstances, States may create liberty interests which are protected by the Due Process Clause. However, the United States Supreme Court made clear that generally those interests will be limited to the freedom from restraint which imposes atypical and significant hardship on the inmate in relation to ordinary prison life : We recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause itself, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Sandin, 515 U.S. at 482. The United States Supreme Court concluded that Conner s segregated confinement did not present the type of hardship which might conceivably involve a liberty interest. Sandin, 515 U.S. at 485-6. The Court explained that the punishment of incarcerated prisoners serves the aim of effectuating prison management and prisoner rehabilitative goals and that discipline by prison officials in response to misconduct is within the expected parameters of the prisoner's sentence. Sandin, 515 U.S. at 485. Because Conner did not allege his confinement was outside the expected parameters of his sentence or imposed an atypical and significant hardship on him in relation to the ordinary incidents of prison life, he failed to demonstrate a liberty interest in being free from disciplinary segregation. Accordingly, the Court concluded there was no denial of due process under the Fourteenth Amendment. 9 Similarly, Appellant in this controversy alleged that 37 Pa. Code §95.240(2) created a liberty interest in not being confined to his cell for thirty days unless he was first given written notice of all the charges against him. Applying the Sandin test, however, Appellant has not alleged an atypical and significant hardship. The Prison has legitimate penological objectives that arise from the day-to-day need to manage the prison. Clearly, both pretrial detainees and convicted prisoners who commit crimes in prison must be sanctioned internally to ensure the safe, orderly, and efficient management of the penal institution. Sandin teaches us to look, not at the mandatory language of the state prison regulation, but to the nature of the alleged deprivation. Appellant neither alleged that his thirtyday confinement was different than the conditions experienced by similarly situated pretrial detainees or that such segregation was atypical in relation to ordinary prison life, nor did he allege that his discipline by prison officials in response to the extortion of another inmate was not within the expected parameters of his incarceration as a pretrial detainee. Appellant, therefore, has no due process claim. 3. Appellant s Status as Pretrial Detainee In an attempt to circumvent Sandin, Appellant asserts that the atypical and significant deprivation standard announced in Sandin does not apply to him because he was a pretrial detainee and Sandin concerned discipline of a convicted and sentenced prisoner. 10 This Court does not agree, given these circumstances, that Appellant s status as a pretrial detainee justifies a shift away from the standard espoused in Sandin which redirects the due process inquiry away from deriving protected liberty interests from mandatory language in local prison regulations. It is true that pretrial detainees have fundamental liberty interests grounded in federal constitutional law that are different than those of convicted and sentenced inmates. For example, the Fourteenth Amendment protects pretrial detainees from being subjected to punishment for the crime with which they have been charged until after they have been convicted and sentenced. Bell v. Wolfish, 441 U.S. 520 (1979) (pretrial detainees may not be punished prior to an adjudication of guilt in accordance with due process of law). Pretrial detainees also retain important Sixth Amendment rights to a speedy trial and the right to counsel. For obvious reasons, these particular constitutional interests are unique to pretrial detainees and not applicable to prisoners who have already been convicted and sentenced. However, no such unique constitutionally protected liberty interest was at stake here. Critically, Appellant did not assert that his discipline involved an indeterminate amount of time in confinement, or that his discipline amounted to retaliation, revenge or punishment for the underlying crime he committed. The procedures due under Wolff protect only an inmate's constitutionally protected liberty interests. Sandin, 515 U.S. at 487. Again, Appellant asserts that the regulation is the basis for his protected liberty interest and that Respondents deprived him of procedural due process by failing to abide by the regulation. In this regard, Appellant s claim was 11 no different than the liberty interest alleged by Conner in Sandin. The Supreme Court specifically held that there was no liberty interest created by the regulation which entitled Conner to the procedural protections set forth in Wolff. Because no liberty interest guaranteed by the Constitution and unique to pretrial detainees is involved, this Court concludes that Appellant s due process claims must be analyzed under the standard announced in Sandin. Absent some unique fundamental liberty interest grounded in federal constitutional law, there is no rational basis to deviate from the Sandin analysis. Compare, Bell, (where detainees in federal custody claimed their Fifth Amendment rights were violated because they were subjected to double-bunking, visual body cavity searches, and other distressing conditions of confinement. There, the proper inquiry referred to as the rationale relationship test was utilized to determine whether those conditions or restrictions amount to impermissible punishment of the detainees).7 Appellant has failed to allege facts sufficient to establish that he had a liberty interest derived from 37 Pa. Code §95.240(2) that warranted protection under the Due Process Clause of the Fourteenth Amendment. Accordingly, he is not entitled to any of the procedural protections enunciated in Wolff or its progeny. 7 Thus, had Appellant alleged a valid liberty interest, a different analysis from Sandin may well have been in order based on his status as a pretrial detainee. The inquiry, however, would not focus solely on the language of the regulation as Appellant contends. 12 The order of the trial court dismissing Appellant s complaint with prejudice is affirmed. ____________________________ BERNARD L. McGINLEY, Judge 13 IN THE COMMONWEALTH COURT OF PENNSYLVANIA David D. Richardson, Appellant v. Corporal Yancik and Counselor Broomall : : : : : : : No. 2057 C.D. 2007 ORDER AND NOW, this 11th day of June, 2008, the order of the Court of Common Pleas of Chester County in the above-captioned case is hereby affirmed. ____________________________ BERNARD L. McGINLEY, Judge
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