The opinion of the court was delivered by: P. Kevin Brobson, Judge
Submitted: November 5, 2010
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JOHNNY J. BUTLER, Judge
Petitioner Charles Garrison (Garrison) filed in this Court's original jurisdiction a petition for a writ of mandamus (petition) through which he seeks an order directing Respondent Department of Corrections (DOC)*fn1 to permit him to participate in a DOC program in which inmates can be trained to be barbers. DOC filed preliminary objections to Garrison's petition, which we now sustain.
We perceive the averments in Garrison's petition to allege the following facts. Garrison is an inmate who was confined at the State Correctional Institution (SCI) at Fayette (Fayette).*fn2 Officials at Fayette would not permit Garrison to (1) participate in a barber program, (2) work in Fayette as a student barber, and (3) obtain a barber license from Fayette's barber school. Garrison asserts that DOC then transferred him to SCI-Greene (Greene) to allow him to obtain a barber license, but that officials at Greene would not permit him to participate in the barber education program there because he had a conviction for a sexual offense.*fn3 Garrison contends that DOC engaged in improper conduct in denying his application to participate in one of DOC's barber programs because DOC has permitted some inmates with sex offense records who had been in prison longer to participate in the program. Garrison states that "[n]ew [inmates] couldn't [participate] because [of a] change in [the] Secretary of Corrections."*fn4
Based upon these primary averments, Garrison raises various legal challenges. Specifically, Garrison argues that: (1) DOC's rules prohibiting inmates with sex offense convictions from participating in barber programs violate "civil procedure and rights;" (2) the application of DOC's rules in a "retrospective" manner violates "all fairness within [the] system of equal rights;" (3) DOC's application of its rule to Garrison violates due process and increases his punishment because his sex offense conviction is "old after 'seven years;'" and (4) the absence of a "law" banning persons with sex offense convictions from participation in barber programs "is a civil and constitutional violation." Garrison also raises an equal protection claim against DOC based upon its refusal, in accordance with DOC's classification of Garrison as a sexual offender, to permit him to participate in a barber program. Within his equal protection claim, Garrison also suggests that DOC's application of its rule results in an increase in his punishment.
DOC's preliminary objections include a demurrer to Garrison's claims, contending that he has failed to state a cause of action for mandamus under (1) the applicable regulation, (2) equal protection, and (3) due process.*fn5
Mandamus is an extraordinary remedy available only to compel the performance of a ministerial act or mandatory duty on the part of a governmental body. Barndt v. Dep't of Corr., 902 A.2d 589, 592 (Pa. Cmwlth. 2006).
In considering whether Garrison has sufficiently pleaded a cause of action seeking relief in the nature of mandamus, we begin with DOC's argument that Garrison is not entitled to relief in the nature of mandamus because he has failed to state a claim under the applicable DOC policy. DOC refers us to its Administrative Directive 807 (DC-ADM 807), which relates to "Inmate Grooming and Barber/Cosmetology Programs," and provides as follows:
D. Barber/Cosmetology Vocational Programs
The Barber/Cosmetology Instruction Program is a vocational opportunity extended to selected inmates on a discretionary basis by the Department.
1. Enrollment Guidelines a. Enrollment in the . . . Program is neither a right nor an earned privilege. Inmates are not entitled to participate by virtue of technical compliance with program guidelines. Factors to be considered are[:] published guidelines, public safety, security, efficient operation, and availability of facility resources.
2. Criteria for Participation a. The inmate must have 12 to 36 months to serve until the expiration of his/her minimum sentence.
m. Since enrollment is neither a right nor an earned privilege, each inmate shall be considered on an individual basis by designated staff. The Department has determined that inmates serving life sentences or having sexual offense ...