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Ferri v. Pennsylvania Dep't of Corrections

September 14, 2010


The opinion of the court was delivered by: Judge McClure



Plaintiff Francis R. Ferri ("Plaintiff" or "Ferri"), an inmate presently confined at the Dallas State Correctional Institution ("SCI Dallas") in Dallas, Pennsylvania, initiated the above civil rights action pro se by filing a document entitled "Petition for a Preliminary Injunction." Although the petition was docketed as a complaint under the provisions of 42 U.S.C. § 1983, it is a motion requesting preliminary injunctive relief. Because Federal Rule of Civil Procedure 3 requires that civil actions be commenced by filing a complaint, by Order dated August 19, 2010, we directed Plaintiff to file a complaint within fourteen (14) days. (Rec. Doc. No. 7.)

In his Complaint, filed on August 26, 2010, Plaintiff names the Pennsylvania Department of Corrections ("DOC") and JPay as Defendants. (Rec. Doc. No. 9.) He alleges that the contract that the DOC has entered into with JPay whereby all money orders that are sent to DOC inmates must be processed through JPay violates the constitutional rights of DOC inmates and their financial supporters. (Id.)

Plaintiff has filed a motion for leave to proceed in forma pauperis in this action. For the reasons set forth below, his request for in forma pauperis status will be granted for the sole purpose of filing this action, and his Complaint will be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted.


As relief in the instant action, Ferri seeks a preliminary and permanent injunction to enjoin the DOC and JPay from performing on a contract that they have entered into whereby, as of September 1, 2010, the sole method by which individuals who want to send money orders to provide funds to DOC inmates is through JPay. On its website, JPay is described as follows:

JPay is a service provided to family and friends of inmates incarcerated in state, county and federal correction facilities. JPay partners with departments of corrections, prisons and jails across the country to provide money transfer, email and video visitation services for family and friends. Parolees can use JPay to pay restitution and manage a Release Debit Card.*fn1

The DOC has provided the following notice on its website of the change in the processing of money orders: "MONEY ORDERS: Beginning September 1, 2010, the DOC will begin using JPAY for the processing of ALL money orders sent to DOC inmates. As of September 1, 2010, money orders no longer will be accepted at individual DOC prisons."*fn2

Ferri alleges that the DOC's refusal to directly accept money orders on behalf of inmates in DOC custody to pay for their medical and legal services, as well as to access the courts and postal services, violates the Constitution. (Rec. Doc. No. 9 § IV 1.) He alleges that the implementation of the contract between the DOC and JPay will irreparably harm most inmates and absolutely harm their financial supporters, many of whom are disabled and protected by the Americans with Disabilities Act ("ADA"). (Id. ¶ 2.) He further alleges that the procedure whereby all money orders intended for DOC prisoners must be made payable to JPay violates federal laws regarding the "impairment of contracts." (Id. ¶ 3.)


In the section of his form Complaint requiring Plaintiff to state whether he has exhausted his administrative remedies before filing this action, Plaintiff admits that he never has filed a grievance relating to the issues he seeks to pursue in the instant action. (Rec. Doc. No. 9 § II.) In explaining his failure to even initiate the grievance process, Plaintiff states that, "The DOC's Secretary approved the illegal action complained of; nothing to exhaust. Time is of the essence, to avoid irreparable harm." (Id. ¶ D.)

The Prison Litigation Reform Act ("PLRA") requires inmates to present their claims through an administrative grievance process before filing suit in federal court. Specifically, section 1997e(a) of Title 42 of the United States Code provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." This "exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002) (emphasis added).

"'[I]t is beyond the power of this court- or any other- to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis.'" Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (quoting Beeson v. Fishkill Corr. Facility, 28 F. Supp. 2d 884, 894-95 (S.D.N.Y. 1998) (citing Weinberger v. Salfi, 422 U.S. 749, 766 (1975)). The PLRA "completely precludes a futility exception to its mandatory exhaustion requirement." Nyhuis, 204 F.3d at 71. The PLRA also mandates ...

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