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George Bussinger Gn-0083, Sci-Forest 1 Woodland Drive, P.O. Box 945 v. the Department of Corrections the State Correctional Institution

August 9, 2011


The opinion of the court was delivered by: Opinion BY Judge Brobson

Argued: May 10, 2011



This is a matter in the Court's original jurisdiction. Presently before the Court for consideration are cross-motions for partial summary judgment.*fn1

Petitioner George Bussinger (Bussinger), an inmate presently located at the State Correctional Facility at Forest (SCI-Forest), challenges a practice and policy of Respondent Department of Corrections (DOC), as implemented by various officials named as additional respondents (collectively, Respondents). The practice and policy involves a DOC form designated "DC-155" and the ramifications for inmates who refuse to execute the form.

DC-155 provides in relevant part as follows:

I, (print inmate's name and number) ___________________, do make, constitute, and appoint the Facility Manager/Director, or his/her authorized representative, of any facility or center within the Department of Corrections to which I am then confined my true and lawful attorney for me and in my name to sign my name as endorsement of all checks, money orders, or bank drafts for deposit to my credit in the Inmate General Welfare Cash Account and to receive and document receipt of mail on my behalf.*fn2 . . . I understand that if this Power of Attorney is revoked, I will not be able to receive mail, to have any funds deposited to my credit in the Inmate General Welfare Fund Cash Account, and will not be able to spend any funds that have been deposited to my credit in the Inmate General Welfare Fund Cash Account. . . . (Emphasis in original.) As indicated by the first sentence of this form, an inmate who signs DC-155 grants to DOC a power of attorney (POA) (1) to enable DOC to endorse various types of negotiable instruments (hereafter checks) sent to an inmate, and (2) to receive and document mail on behalf of an inmate. Bussinger, however, directs his challenge to the latter part of the form, which provides consequences in the event an inmate revokes the form. In that event, DC-155 provides that the inmate will no longer be permitted to (1) receivemail,(2) have any funds deposited into the inmate's account, and (3) spend any funds in the inmate's account.

At some point, likely at the inception of his term of incarceration, Bussinger executed DC-155. On March 31, 2010, Bussinger notified DOC that he wanted to revoke his authorization to DOC to endorse incoming checks on his behalf. Instead, he wished that DOC simply return such mail to the sender. DOC treated this request as a revocation of his DC-155 in its entirety. Pursuant to the terms of the form, DOC consequently prohibited Bussinger from receiving all mail-i.e., not just mail including checks. In addition, and notwithstanding the absence of any language to this effect in the form, DOC also prohibited Bussinger from sending any mail. In essence, DOC suspended Bussinger's mail privileges in their entirety. It is this practice and policy-i.e., to suspend all mail privileges of an inmate who either refuses to execute DC-155 or attempts to revoke the authority given to DOC in the form (the Challenged Policy) that is the subject of this lawsuit.

DOC has promulgated a regulation that specifically relates to inmate correspondence (Mail Regulation). The Mail Regulation provides: "Inmates are permitted to correspond with friends, family members, attorneys, news media, legitimate business contacts and public officials. There may be no limit to the number of correspondents." 37 Pa. Code § 93.2(a). The Mail Regulation provides further for certain restrictions on inmate correspondence (e.g., relating to safety and security concerns, criminal activity, or obscene materials, etc.) and confers authority on DOC to scrutinize and reject restricted mail. Id. § 93.2(b), (e), (f). It includes certain provisions relating to how DOC will handle incoming mail, id. § 93.2(c), and outgoing mail, id. § 93.2(d). The Mail Regulation includes provisions relating to sealed communications from an inmate's attorney or a court. Id. § 93.2(c)(1). Curiously, the Mail Regulation does not at all address or acknowledge in any manner a requirement that inmates execute a POA, and it does not even reference form DC-155.

DOC also has a separate written policy governing inmate mail, DC-ADM 803 (Mail Policy). Though there is some overlap with the Mail Regulation, the Mail Policy contains additional guidelines for the handling of inmate mail. For example, the Mail Policy provides that "[e]ach inmate will be permitted, without cost, to mail 10 one-ounce, first-class letters per month," but that "[t]here will be no limit on the number of letters that an inmate may send at his/her own expense." DC-ADM 803 at 1-3 (emphasis added). In addition, the Mail Policy addresses how prison officials will handle incoming mail that includes negotiable instruments:

5. Incoming mail shall be opened and inspected for contraband in the facility's mailroom. Money orders and certified checks shall be recorded, indicating the nature of the receipt, the sender, the amount received, and the date. A DC-130B, Cash Transaction Receipt shall be issued to the inmate for all amounts received. The money order and/or certified check shall be forwarded to the facility Business Manager who shall deposit the money into the inmate's account.

6. The facility will not accept personal checks or cash sent through the mail. If a personal check or cash is discovered during an inspection for contraband, the entire piece of mail is to be returned to the sender with a notice that it is being returned because of non-permitted contents.

Id. at 3-1 to 3-2 (footnotes omitted) (emphasis in original). Like the Mail Regulation, however, the Mail Policy does not at all address or acknowledge in any manner a requirement that inmates execute a POA with respect to the endorsement of checks and other negotiable instruments, and it does not reference form DC-155.

In his petition for review to the Court and now in his motion for partial summary judgment, Bussinger challenges the constitutionality of DOC's decision to suspend his mail privileges under the Challenged Policy.*fn3 In his motion, Bussinger seeks an order (1) directing DOC to stop interfering with Bussinger's mail; (2) declaring the DC-155 form void insofar as it affects Bussinger's right to send and receive mail; and (3) scheduling a hearing on damages and attorneys' fees.*fn4 In their cross-motion for summary judgment, Respondents seek a judgment in their favor on Bussinger's claim for attorneys' fees, citing the affirmative defense of qualified immunity.


We apply a two-step approach in assessing Bussinger's constitutional challenge. See Brown, 932 A.2d at 318. First, we must determine whether the Challenged Policy infringes upon any of Bussinger's constitutional rights. If we answer that question in the affirmative, the second step is to determine whether the policy is nonetheless reasonable-i.e., whether it is "reasonably related to legitimate penological interests." Brittain v. Beard, 601 Pa. 409, 974 A.2d 479 (2009) (Brittain) (citing Turner v. Safley, 482 U.S. 78 (1987)).

In the second step of our analysis, we consider the following factors:

(1) whether there is a "valid, rational connection" between the prison regulation and the legitimate governmental interest asserted to justify it; (2) whether alternative means are open to inmates to exercise the asserted right; (3) what impact an accommodation of the asserted constitutional right will have on guards, inmates, and prison resources; and, (4) whether there are "ready alternatives" to the rule that would accommodate prisoners' rights at de minimus cost to penological interests.

Id. at 421, 974 A.2d at 486. With respect to these factors (known generally as the "Turner factors"), the United States Court of Appeals for the Third Circuit has explained:

These requirements "serve as guides to a single reasonableness standard," but the first [factor] "‗looms especially large' because it ‗tends to encompass the remaining factors, and some of its criteria are apparently necessary conditions.'"

Ramirez v. Pugh, 379 F.3d 122, 126 (3d Cir. 2004) (quoting Waterman v. Farmer, 183 F.3d 208 (3d Cir. 1999)). In assessing these factors, the courts give substantial deference to the professional judgment of prison administrators. Brittain, 601 Pa. at 421, 974 A.2d at 486. "[O]nce an inmate commences an action challenging a prison regulation, it is the obligation of [DOC] to set forth, in its answer to the inmate's complaint, its belief that there is a valid and rational connection between the challenged regulation and an enumerated legitimate penological interest." Id. at 423-24, 974 A.2d at 487 (emphasis added). The burden then shifts to the inmate to prove the unreasonableness of DOC's belief. Id. at 424, 978 A.2d at 487-88 (emphasis added).

A. Turner Step 1: Are Constitutional Rights Infringed?

We begin by considering Bussinger's claim that the Challenged Policy violates the right to access the courts afforded to him under the First Amendment to the United States Constitution. DOC does not dispute that Bussinger's right to access the courts is implicated in this case. "[I]nmates have a ‗fundamental constitutional right of access to the courts.'" Bronson v. Horn, 830 A.2d 1092, 1095-96 (Pa. Cmwlth. 2003) (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)), affirmed, 577 Pa. 653, 848 A.2d 917, cert. denied, 543 U.S. 944 (2004); see Brown, 932 A.2d at 318-19.*fn5

In addition, though Bussinger focuses on the effect that the Challenged Policy has had on his ability to petition the courts for redress and to communicate with his attorney, we note that the First Amendment to the United States Constitution has long been interpreted by the courts as including a general right to communicate by mail. See, e.g., Turner, 482 U.S. at 91-93 (analyzing constitutionality of regulation restricting inmate-to-inmate mail); Thornburgh v. Abbott, 490 U.S. 401 (1989) (analyzing constitutionality of regulation restricting prisoner receipt of outside publications by mail).

B. Turner Step 2: Reasonableness

In light of the foregoing, we must now assess the reasonableness of the Challenged Policy by applying the Turner factors. The first factor requires us to determine whether the Challenge Policy "has a valid, rational connection with the legitimate governmental interest put forward to justify it." Brown, 932 A.2d at 319 (emphasis added).

With respect to the first Turner factor, Respondents argue:

Applying prong one of Turner, the undisputed evidence shows that the penological reason for tying the POA to both mail and the inmate's account is to allow [DOC], when it receives a check payable to an inmate in the mail, to endorse and deposit that check. In addition, the opposing Affidavit of Michael Knaub sets forth other bases for the POA form. (Corrections' Br. at 12.) In his affidavit, Michael Knaub (Knaub),*fn6 offers the following with respect to DC-155 and the included POA:

5. One purpose of . . . DC-155 . . . is to allow the institutions to receive and endorse negotiable instruments that arrive by mail so that funds can be placed in inmates' prison accounts.

6. If there were no DC-155, the only way the institution could negotiate instruments received in the mail is to take them to the various ...

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