The opinion of the court was delivered by: Mary Hannah Leavitt, Judge
Submitted: December 9, 2011
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
Roger Buehl is an inmate at the State Correctional Institution at Smithfield (SCI-Smithfield). Buehl has filed a petition for review with this Court, seeking a writ of mandamus as well as declaratory and injunctive relief. The gravamen of Buehl's action is that the Department of Corrections has failed to provide him and other inmates the physical exercise that is required by statute. The Department, Secretary Beard and Superintendent Smeal (collectively, Department of Corrections) have filed a motion for judgment on the pleadings, and Buehl has filed a cross-motion for judgment on the pleadings. Concluding that there are no material facts in dispute and that Buehl cannot prevail as a matter of law, we grant the Department's motion and deny Buehl's motion.
Buehl's petition for review is founded on Section 5901 of the Prisons and Parole Code (Prisons Code), 61 Pa. C.S. §5901,*fn1 which requires the Department to provide Buehl with two hours of daily physical exercise. Section 5901 provides:
(1) A chief administrator who may or shall have in charge any inmate, whether the inmate has been tried or not, shall provide the inmate with at least two hours of daily physical exercise in the open, weather permitting, and, upon such days on which the weather is inclement, with two hours of daily physical exercise inside of the correctional institution.
(2) The physical exercise must be safe and practical, and the judges of several courts are to be the judges thereof.
(3) Inmates in segregation or disciplinary status shall receive a minimum of at least one hour of daily exercise five days per week.
(b) Limitation.-The physical exercise required by subsection
(a) shall not be taken by an inmate within the confines of his cell or room in which the inmate is confined.
(c) Applicability.-This section shall not apply to inmates who are confined and not physically able to take the required physical exercise.
61 Pa. C.S. §5901 (emphasis added). Buehl contends that the Department has not complied with Section 5901, which, in turn, violates his constitutional right to due process and equal protection of the laws.
Specifically, Buehl's petition alleges that the Department regularly cancels outdoor physical exercise at SCI-Smithfield by invoking, without cause, the "inclement weather" exception to outdoor exercise. Petition for Review ¶¶17, 18 (Petition
¶___). The Department falsifies reports of inclement weather. Petition
¶31. The Department then follows this unjustified cancellation of outdoor exercise with a failure to provide indoor exercise in the gym. Petition
¶39. The Department does not allow calisthenic exercise in the recreation room when outdoor exercise is cancelled. Buehl challenges the Department's "600 Rule," which allows no more than 600 inmates in the yard at one time and, thus, limits outdoor physical exercise. Petition
¶38. Further, the Department does not provide prisoners with an outdoor restroom option during cold-weather months, which forces prisoners inside, thereby surrendering any remaining outdoor exercise time. Petition ¶43.
Based on the above allegations, Buehl's petition requests a writ of mandamus to compel the Department (1) to follow its own guidelines defining "inclement" weather when revoking outdoor exercise, (2) to provide him two hours of strenuous indoor physical exercise when outdoor exercise is cancelled, (3) to provide outdoor restrooms and (4) to revoke its 600 Rule. The petition also seeks a declaratory judgment that the Department has violated Section 5901 and an injunction to prevent retaliation from the Department for filing his petition for review.
The Department filed preliminary objections, and Buehl responded with preliminary objections to the Department's preliminary objections. This Court overruled Buehl's preliminary objections and sustained the Department's preliminary objections to Buehl's constitutional claims. Buehl v. Beard, (Pa. Cmwlth., No. 435 M.D. 2009, filed December 22, 2010). This Court dismissed the constitutional counts from the petition for review, which were the only counts challenged by the Department's preliminary objections.*fn2 The Department filed an answer and new matter, which Buehl ...