Submitted: August 9, 2013.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Court of ORIGINAL JURISDICTION.
Archie Tindell and James Wright, Pro se.
Raymond W. Dorian, Assistant Counsel, Mechanicsburg, for respondents.
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY SENIOR JUDGE COLINS.
JAMES GARDNER COLINS,
Archie Tindell and James Wright (Petitioners), pro se, have filed an amended petition for review in the nature of mandamus in our original jurisdiction naming as respondents the Department of Corrections (DOC), John Wetzel, Secretary of the DOC, and employees of the State Correctional Institution--Forest (SCI Forest) Superintendent Debra K. Sauers Superintendent Daniel Burns Deputy Superintendent Eric Tice, and Deputy Superintendent Michael Overmyer (collectively Respondents). Before the Court are Respondents' preliminary objections. Respondents object in the nature of a demurrer to Petitioners' amended petition for review, seeking dismissal pursuant to Pennsylvania Rule of Civil Procedure No. 1028(a)(4). Respondents also seek dismissal
of the SCI Forest employees as respondents, because they are not statewide officers for purpose of this Court's original jurisdiction under Section 761(a) of the Judicial Code, 42 Pa. C.S. § 761(a). Because we conclude that Petitioners have failed to state a claim upon which relief can be granted, Respondents preliminary objection in the nature of a demurrer is granted and Petitioners' amended petition for review in the nature of mandamus is dismissed.
A writ of mandamus is an extraordinary remedy used to compel official performance of a ministerial act when a petitioner establishes a clear legal right, the respondent has a corresponding duty, and the petitioner has no other adequate remedy at law. Danysh v. Wetzel, 49 A.3d 1, 2 (Pa. Cmwlth. 2012). The purpose of mandamus is to enforce rights that have been clearly established. Silo v. Commonwealth, 886 A.2d 1193, 1195 (Pa. Cmwlth. 2005). Mandamus may not be used to establish legal rights or to compel performance of discretionary acts. Maute v. Frank, 670 A.2d 737, 740 (Pa. Cmwlth. 1996). Although Petitioners have titled their action as one in mandamus, they also request permanent injunctive relief. (Amended Petition, Prayer for Relief.) Like mandamus, Petitioners' threshold burden when seeking a permanent injunction is to establish a clear legal right to relief. Rosario v. Beard, 920 A.2d 931, 934 (Pa. Cmwlth. 2007). To secure injunctive relief, Petitioners must demonstrate that the right to relief is clear, that there is an urgent necessity to avoid an injury which cannot be compensated in damages, and that the greater injury will result from refusing rather than granting the relief requested. Id.; Singleton v. Lavan, 834 A.2d 672, 674 (Pa. Cmwlth. 2003). Petitioners also request incidental damages pursuant to Section 8303 of the Judicial Code. 42 Pa. C.S. § 8303.
Petitioners have been housed at SCI Forest in the Restricted Housing Unit (RHU). In stating their claim for a writ of mandamus, Petitioners allege that conditions in the RHU violate a series of DOC regulations and policies that govern operation of State Correctional Institutions within Pennsylvania. (Amended Petition, ¶ ¶ 55-74.) To be clear, ...