The opinion of the court was delivered by: Senior Judge Kelley
Submitted: April 30, 2010
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.
Presently before this Court for disposition are the preliminary objections filed by Jeffery Beard, Ph.D, as Sec. of Dept. of Corrections; Louis Folino, As Supt. of SCI-Greene; and The Statewide entity of the PA D.O.C. (herein collectively referred to as "Respondents") to the Application for Relief/Petition for Mandamus (Complaint) filed, pro se, in this Court's original jurisdiction by A. Andy Torres, Richard X. Sutton, Tauheed Lloyd, Darius Flewellen, Vinnie Dougherty, Paul Hickman, Carlos Maysonet, Andre Gay, and Cedric Thomas (hereinafter collectively referred to as "Petitioners").*fn1 We sustain in part and overrule in part the Preliminary Objections, deny Petitioners' Motion for Class Certification, and dismiss the Complaint with prejudice.
On or about November 23, 2009, Petitioners filed their Complaint against Respondents seeking both declaratory and injunctive relief based on the allegations that: (1) there is a systematic abuse of the Department of Corrections' Policy Number DC-ADM 802, Administrative Custody Procedures,*fn2 and that there exists a common scheme, plan, motive or design of simply labeling an inmate "a danger to himself or others" without some evidence as directed by DC-ADM 802; (2) there is a systematic abuse of 37 Pa. Code §93.11(b) and that a common scheme, plan, motive or design of simply providing rote and perfunctory periodic reviews of administrative custody status exists; (3) there is a systematic abuse of the appeal process and that a common scheme, plan, motive or design of all appeal responses stating the exact same rote review of administrative custody status exists; and (4) a common scheme, plan, motive or design of punishing inmates on non-punitive administrative custody status in the restrictive housing unit*fn3 (RHU) exists. Petitioners request that this Court issue a declaration that the process being provided for administrative custody status review falls painfully short of the due process afforded via 37 Pa. Code §93.11(b), and is directly contrary to the specifically forbidden deprivations found by the Third Circuit in Sourbeer v. Robinson, 791 F.2d 1094 (3d Cir. 1986), cert. denied, 483 U.S. 1032 (1987).
Petitioners further request that this Court issue an order setting forth specific procedures that Petitioners aver will afford them the due process that is currently being denied to inmates in administrative custody status and ordering Respondents to cease and desist the punishment of all administrative custody status inmates in the RHU that are not on punishment status in accordance with 37 Pa. Code §93.11(b).*fn4 Finally, Petitioners request class certification.
Along with the Complaint, Petitioners filed a Brief and Memorandum of Law in Support of Petitioner Plaintiffs Writ of Mandamus, to which Petitioners have attached several exhibits. On December 10, 2009, Respondents filed an Answer to Petitioners' Motion for Class Certification to which Petitioners filed a response.
On December 28, 2009, Petitioners filed a Motion to Preserve Evidence and Respondents filed a reply to the motion. By order of February 8, 2010, this Court granted Petitioners' motion and directed Respondents to preserve the Level 5 housing security logbook evidence from November 2007 and surveillance video footage recorded on housing units G, H, and I from the last 90 days and ongoing pending disposition of this matter.
On February 18, 2010, Respondents filed a Motion to Amend this Court's February 8, 2010, order pertaining to the preservation of evidence. Petitioners objected to the request for amendment; however, by order of March 29, 2010, we amended our February 8, 2010, order to reflect that Respondents are directed to preserve the Level 5 housing security logbook evidence from November 2007 and, if requested, provide to the Court the counselors' Inmate Cumulative Assessment Records (ICAR) notes and Program Review Committee (PRC) reports for the last two years.
Respondents filed Preliminary Objections to the Complaint on December 30, 2009. Therein, Respondents aver that: (1) the claims raised by Petitioners Lloyd, Dougherty, Hickman, Thomas, and Gay in this action are barred by the two-year statute of limitations; (2) Petitioners have failed to state a claim with respect to the due process allegations; (3) Petitioners have failed to state a claim with respect to any claim of retaliation; and (4) Petitioners are not entitled to injunctive relief because they have failed to plead facts demonstrating a clear right to relief. In the brief in support of the Preliminary Objections, Respondents set forth the additional argument that since Petitioners Torres and Maysonet have been moved out of the RHU, their claims are now moot.
In ruling on preliminary objections, we must accept as true all well-pleaded material allegations in the petition for review, as well as all inferences reasonably deduced therefrom. Meier v. Maleski, 648 A.2d 595 (Pa. Cmwlth. 1994). The Court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. Id. In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and any doubt should be resolved by a refusal to sustain them. Id.
A preliminary objection in the nature of a demurrer admits every well-pleaded fact in the complaint and all inferences reasonably deducible therefrom.
Clark v. Beard, 918 A.2d 155 (Pa. Cmwlth. 2007). It tests the legal sufficiency of the challenged pleadings and will be sustained only in cases where the pleader has clearly failed to state a claim for which relief can be granted. Id. When ruling on a demurrer, a court must confine its analysis to the complaint. Id.
In light of the foregoing, this Court first rejects Respondents' argument raised in their brief that the claims raised by Torres and Maysonet are moot because they have been moved out of the RHU. This argument was not raised as an objection in Respondents' Preliminary Objections*fn5 and the fact asserted by Respondents is outside the averments of the Complaint. Therefore, this Court may not accept Respondents' assertion that Torres and Maysonet have been moved out of the RHU as fact at this stage of the pleadings.
Next, Respondents contend that Petitioners Lloyd, Doughtery, Hickman, Thomas and Gay are barred from bringing this action by the applicable two-year statute of limitations. Respondents classify Petitioners' Complaint as a Section 1983*fn6 action and argue that claims under Section 1983 most resemble personal injury actions; therefore, under Pennsylvania law, the aforementioned Petitioners are barred by the two-year statute of limitations that applies to personal injury actions. See Section 5524 of the Judicial Code, 42 Pa.C.S. §5524. Respondents contend that these Petitioners allege that they have been in the RHU since August 22, 2006, December 10, 1996, November 4, 1999, March 27, 2007 and June 26, 1998, respectively, and that they certainly knew that they had been in administrative custody in the RHU for more than two years before filing suit. As such, their claims are barred.
In response, Petitioners argue that the instant action is not a Section 1983 action or a personal injury action and that no federal statute or the United States Constitution has been cited or relied upon as support for their allegations. Petitioners contend that this is purely a mandamus action seeking to compel the specific non-discretionary performance of public officials and that mandating compliance of a state statute in state court has nothing to do with federal authorities. Petitioners contend that there is no authority for the legal conclusion that a mandamus action must be brought within the time constraints of Section 5524 of the Judicial Code.
Petitioners argue further that even if the two-year statute of limitations was applicable, their action falls under the continuous injury/continuing wrong doctrine and that statute of limitations tolling does not begin until the injury/wrong ends. In addition, Petitioners argue that even if legal statutory standing did not extend to when the relevant Petitioners were first placed in administrative custody, they do have legal statutory standing from November 2007 to November 2009, when this action was filed since there are at least four of the complained of reviews per year. Petitioners contend that the placement itself in administrative custody is not an issue; the issue is the process that is due after said placement(s) and guaranteed via 37 Pa. Code §93.11(b).
Upon review, we conclude that since Petitioners characterize their Complaint as purely a mandamus action, they are not challenging the placement itself into administrative custody, they are not requesting placement in the general population, or seeking damages for any injury to person or property, the claims raised therein by Petitioners Lloyd, Doughtery, Hickman, Thomas and Gay are not barred by the two-year statute of limitations found in Section 5524 of the Judicial Code, 42 Pa.C.S. §5524. See The Pennsylvania Land Title Association v. East Stroudsburg Area School District, 913 A.2d 961 (Pa. Cmwlth. 2006), petition for allowance of appeal denied, 593 Pa. 743, 929 A.2d 1163 (2007) (Action brought in mandamus not barred by six month statute of limitations where petitioners alleged that respondents failed to comply with statute and petitioners did not seek damages for any injury to person or property but requested that court order respondents to comply with statute). Moreover, as correctly pointed out ...