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REGGIE MAYS v. THOMAS FULCOMER (01/11/89)

decided: January 11, 1989.

REGGIE MAYS, APPELLANT
v.
THOMAS FULCOMER, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION OF HUNTINGDON AND COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, APPELLEES



Appeal from the Order of the Court of Common Pleas of Huntingdon County in the case of Reggie Mays v. Thomas Fulcomer, Superintendent of the State Correctional Institution at Huntingdon and Commonwealth of Pennsylvania, Department of Corrections, No. 85-1722.

COUNSEL

Charles A. Bierbach, for appellant.

Jerome T. Foerster, Deputy Attorney General, with him, Gregory R. Neuhauser, Senior Deputy Attorney General, John G. Knorr, III, Chief Deputy Attorney General, and LeRoy S. Zimmerman, for appellees.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 122 Pa. Commw. Page 556]

Reggie Mays appeals an order of the Huntingdon County Court of Common Pleas dismissing an action which he brought against the Pennsylvania Department of Corrections (Department) and Thomas Fulcomer, Superintendent of the State Correctional Institution of Huntingdon (SCIH).

Mays has been an inmate at SCIH since August of 1984. Prior to that date, he was incarcerated at the State Correctional Institution at Graterford (SCI-Graterford). While there, he was an officer of the SCI-Graterford Jaycees. A report of an investigation by Harold Wilson, a member of SCI-Graterford's internal security, revealed that Mays along with two other inmates who were officers in the SCI-Graterford Jaycees, misappropriated at least $4,026.92 from the Jaycees' account while they held elected office in the organization. The full report of this investigation by Harold Wilson resulted in a prison misconduct report being filed against Mays on August 13, 1984, and a misconduct hearing held at SCIH on August 15, 1984. The misconduct report named the two individuals who along with Mays had allegedly misappropriated the Jaycee funds and the amount alleged to have been stolen. The report further stated that these inmates accomplished the theft by mailing Jaycee checks to a nonexistent company. These checks were then alleged to have been cashed by the wife of one of the inmates and another person who claimed they gave the money to a third party. Mays received a copy of the misconduct report prior to the

[ 122 Pa. Commw. Page 557]

    hearing but was not provided with a copy of Wilson's full investigatory report.

Only the misconduct hearing committee chairman and Mays were present at the misconduct hearing. The evidence against Mays consisted of the misconduct report. Mays denied the allegations contained therein but offered no further evidence on his behalf. The hearing committee chairman found Mays guilty of the misconduct and sentenced him to "disciplinary custody -- close for a period of ninety days"*fn1 and restitution in the amount of $1,006.73. Half of May's hourly prison stipend of $.20 per hour was applied to the restitution.

Mays filed an action pursuant to 42 U.S.C. § 1983,*fn2 claiming his federal civil rights were violated by the procedure employed at the misconduct hearing and seeking an order directing Appellees to stop deducting the $.10 from his hourly prison "wages" to pay the restitution. Mays also requested an award of attorneys' fees pursuant to 42 U.S.C. § 1988. Appellees preliminarily objected to the Complaint claiming it did not state a cause of action. The trial court dismissed the Complaint, holding that: (1) the amount paid to prisoners does not constitute a wage exempt from Section 8127 of the Judicial Code (Code), 42 Pa. C.S. § 8127;*fn3 (2) Mays'

[ 122 Pa. Commw. Page 558]

    due process rights were not violated; (3) the Department was not a person as required for § 1983 cause of action; and (4) the Complaint failed to state a cause of action against Fulcomer because it did not specifically aver that ...


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