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Bush v. Veach

July 23, 2010


The opinion of the court was delivered by: Senior Judge Friedman

Submitted: May 28, 2010



Peter T. Bush (Bush) appeals from the November 12, 2009, order of the Court of Common Pleas of Schuylkill County (trial court), which sustained the preliminary objections of Corrections Officer (C.O.) Veach, Unit Manager Griffin, C.O. Boganski, Superintendent Kerestes, Food Service Manager Stanitis and Major Derfler (collectively, Appellees) and dismissed Bush's complaint against Appellees. We affirm in part and reverse in part.

Bush is an inmate at the State Correctional Institution at Mahanoy (SCIMahanoy), and Appellees are employees at the prison. Bush filed a complaint in the trial court against Appellees, alleging that: (1) Griffin and Stanitis violated Bush's due process rights by taking away his prison job as a sanction for a Class II misconduct; (2) all Appellees, except Superintendent Kerestes, violated Bush's First Amendment right of access to the courts by retaliating against him for filing grievances; and (3) Superintendent Kerestes violated Bush's First Amendment right by failing to stop the actions of the other Appellees. The retaliatory acts included searching Bush's cell and mail, denying his request to move to another cell because he and his cellmate were not compatible, using abusive language and moving him from one unit to another. Bush sought damages from Appellees in an amount to be determined by a jury.

Appellees filed preliminary objections in the nature of a demurrer. After considering the issues, the trial court concluded that: (1) Bush failed to state a due process claim against Appellees for taking away his prison job because Bush did not have a property right in his prison job; (2) Bush did not state a retaliation claim for the filing of grievances because filing grievances does not invoke a constitutionally protected right; and (3) Bush could not bring a civil rights claim against Kerestes based on a theory of respondeat superior for his failure to stop the retaliatory acts of those he supervised. Bush now appeals to this court.*fn1

I. Due Process

Bush first argues that the trial court erred in determining that he had no property right in his prison job. We disagree. In Miles v. Wiser, 847 A.2d 237 (Pa. Cmwlth.), appeal denied, 581 Pa. 702, 864 A.2d 1206 (2004) (citing Bryan v. Werner, 516 F.2d 233 (3d Cir. 1975)), this court stated that an inmate has no property right in keeping a prison job.

Bush also argues that he was denied the process that is set forth in the regulation at 37 Pa. Code §93.10. We agree.*fn2

Bush lost his prison job as a sanction for a Class II misconduct. Under 37 Pa. Code §93.10(a)(2)(v), inmates found guilty of Class II misconducts may be removed from a prison job as a sanction for the misconduct. However, before prison officials can impose any sanction, they must follow the procedure set forth in subsection (b) of the regulation. The procedure includes: (1) written notice of the charges; (2) a hearing before an impartial hearing examiner or, at the option of the inmate, an informal resolution process for charges specified in the Department of Corrections Inmate Handbook (Inmate Handbook);*fn3 (3) an opportunity for the inmate to tell his story and present relevant evidence; (4) assistance from an inmate or staff member at the hearing if the inmate is unable to collect and present evidence effectively; (5) a written statement of the decision and reasoning of the hearing body based upon the preponderance of the evidence; and (6) an opportunity to appeal the decision in accordance with the Inmate Handbook. 37 Pa. Code §93.10(b).

Bush alleged that he worked in the kitchen, and, on December 23, 2008, he was caught taking unauthorized food, viz., four ice cream sandwiches, from the kitchen. Three hours later, after returning to his housing unit, Bush was informed orally by a corrections officer that he had been charged with a misconduct. Taking unauthorized food from the kitchen is a Class II misconduct, eligible for the informal resolution process. Less than twenty-four hours later, Bush was called to the desk on the housing unit for an informal hearing with Unit Manager Griffin. Griffin informed Bush that he was charged with a misconduct for the kitchen incident, and, as a sanction, Griffin "was going to take [his kitchen] job." (Complaint, ¶¶83-84.)

Clearly, then, Bush did not receive written notice, a hearing before an impartial hearing examiner, an opportunity to present relevant evidence and receive assistance, a written decision with reasoning or an opportunity to appeal. Rather, Bush went through the informal resolution process set forth in the Inmate Handbook. That process requires the Unit Manager and at least one other member of the Unit Management Team to meet with the inmate for disposition of the charges.*fn4 The Unit Manager may impose the following sanctions: (1) no action; (2) reprimand and/or warning; (3) referral to a Hearing Examiner for a formal misconduct hearing; (4) up to seven days cell restriction; (5) up to seven days loss of specific privileges; (6) one week loss of commissary; and/or (7) assignment of additional work duties for which the inmate will not be paid and/or payment for damaged or destroyed state property. (Inmate Handbook, §VIII(D).)

Thus, according to the process set forth in the Inmate Handbook, Unit Manager Griffin could only remove Bush from his prison job for up to seven days. In order to permanently remove Bush, prison officials had to dispose of Bush's Class II misconduct pursuant to the formal hearing process. Because that was not the case, Bush has stated ...

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