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FRANK RAKUS v. WILLIAM B. ROBINSON (02/03/78)

decided: February 3, 1978.

FRANK RAKUS, PETITIONER
v.
WILLIAM B. ROBINSON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE PENNSYLVANIA BUREAU OF CORRECTIONS, TOGETHER WITH HIS AGENTS AND SUCCESSORS IN INTEREST, CHARLES C. PAGANA, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DIRECTOR OF COMMUNITY SERVICES FOR THE PENNSYLVANIA BUREAU OF CORRECTIONS TOGETHER WITH HIS AGENTS AND SUCCESSORS IN INTEREST, JAMES F. HOWARD, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, TOGETHER WITH HIS AGENTS AND SUCCESSORS IN INTEREST, CHARLES ZIMMERMAN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DEPUTY SUPERINTENDENT OF TREATMENT FOR INMATES AT THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, TOGETHER WITH HIS AGENTS AND SUCCESSORS IN INTEREST, JAMES WIGTON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS THE DIRECTOR OF TREATMENT FOR INMATES AT THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH, TOGETHER WITH HIS AGENTS AND SUCCESSORS IN INTEREST, RESPONDENTS



Original jurisdiction in case of Frank Rakus v. William B. Robinson, Individually and in his official capacity as Commissioner of the Pennsylvania Bureau of Corrections, together with his agents and successors in interest, Charles C. Pagana, Individually and in his official capacity as Director of Community Services for the Pennsylvania Bureau of Corrections together with his agents and successors in interest, James F. Howard, Individually and in his official capacity as Superintendent of the State Correctional Institution at Pittsburgh, together with his agents and successors in interest, Charles Zimmerman, Individually and in his official capacity as Deputy Superintendent of Treatment for Inmates at the State Correctional Institution at Pittsburgh, together with his agents and successors in interest, James Wigton, Individually and in his official capacity as the Director of Treatment for Inmates at the State Correctional Institution at Pittsburgh, together with his agents and successors in interest.

COUNSEL

Frank Rakus, petitioner, for himself.

Michael H. Garrety, Deputy Attorney General, with him J. Andrew Smyser, Deputy Attorney General, and Robert P. Kane, Attorney General, for respondent.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman.

Author: Bowman

[ 33 Pa. Commw. Page 498]

Frank Rakus, petitioner pro se, was sentenced in 1950 to life imprisonment for the crime of first degree murder. This sentence was commuted in 1976 to a term of thirty years to life, said minimum sentence to expire on January 10, 1980. Added to the commutation order was the following phrase: "so that he may be eligible for pre-release consideration at the discretion of the Bureau of Correction." Petitioner promptly began to request admission to pre-release programs such as picnic visits and furloughs, apparently with the belief that the addenda to the commutation order assured his admission. With the exception of an entry into a community treatment center program, subsequently rescinded by the program staff, all such requests were denied.

Petitioner then initiated an action in this Court, which by our Order of July 29, 1977, we treated as a petition for review in the nature of mandamus and declaratory judgment. Pa. R.A.P. 1503. It names as respondents, William B. Robinson, Commissioner of the Pennsylvania Bureau of Corrections; Charles C. Pagana, Director of Community Services for the Pennsylvania Bureau of Corrections; James F. Howard, Superintendent of the State Correctional Institution at Pittsburgh (SCI); Charles Zimmerman, Deputy Superintendent at SCI; and James Wigton, Director of Treatment at SCI.

Asserting in conclusory averments that said respondents have conspired to unlawfully deny him admission to pre-release programs because of a 1972 escape attempt, criminal charges for which were dismissed,

[ 33 Pa. Commw. Page 499]

    petitioner claims violations of his constitutional rights under the Fourteenth and Eighth Amendments of the United States Constitution and asserts a cause of action under 42 U.S.C. ยง 1983. Petitioner seeks "injunctive" relief to gain entry to pre-release status, damages and a declaratory judgment.

Respondents, in their answer, deny petitioner's charge that denial to pre-release programs is in retaliation for the alleged 1972 escape, and aver further that denial was based upon petitioner's "lengthy history of escapes and escape attempts at several institutions, poor judgment and erratic behavior, too great a possibility of cultural and emotional shock in the unstructured furlough environment after almost continuous incarceration since 1938." In new matter, respondents assert absolute or conditional immunity, the good faith of their actions and allege that petitioner has failed to state a cause of action.

Petitioner, in his reply to new matter, denies immunity but adds no additional factual averments.

The pleadings being closed, respondents have filed a motion for summary judgment supported by affidavits from all respondents and other documentary evidence. Petitioner has filed no answer to said ...


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