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Whitaker v. Wetzel

Commonwealth Court of Pennsylvania

August 29, 2017

Tracy Whitaker, Appellant
v.
John E. Wetzel, T. Brokenshire, Nancy Wilson and Vincent Mooney

          Submitted: January 27, 2017

          BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE JOSEPH M. COSGROVE, Judge.

          OPINION

          JOSEPH M. COSGROVE, JUDGE.

         Tracy Whitaker (Appellant) appeals, pro se, from an Order of the Court of Common Pleas of Northumberland County (trial court), dismissing his civil complaint as frivolous pursuant to Pa. R.C.P. No. 240(j)(1) (pertaining to filing in forma pauperis). Upon review, we affirm.

         I. Background

         Appellant is incarcerated at the State Correctional Institution at Coal Township (SCI-Coal Township). His family sent photographs to Photo Affections, a photograph printing company (Photo Affections), which was instructed to develop the photographs and forward them to him. (Certified Record (C.R.), Item No. 3 at 2.) When the photographs arrived at SCI-Coal Township, the mailroom supervisor confiscated them as unpermitted articles in contradiction of DC-ADM 803 policy (pertaining to incoming mail and incoming publications). (C.R., Item No. 3, Exhibit D.)

         In its initial correspondence with Appellant (referred to as "Unacceptable Correspondence notice"), SCI-Coal Township notified him that the photographs were taken because Photo Affections is not an approved vendor. The institution also instructed Appellant to "send the [m]ailroom two (2) signed cash slips and an addressed envelope/label to return this unpermitted article [to Photo Affections]. ALL confiscated items will be held for 30 days and then be destroyed." (Emphasis in original.) (C.R., Item No. 3, Exhibit A.)

         After receipt of the Unacceptable Correspondence notice, Appellant filed an inmate request to staff member (Inmate Request), objecting to confiscation of the photographs, and asserting that "an approved vender [sic] is not required by Pennsylvania Code 37 Pa Code §93.2 [pertaining to inmate correspondence] or DC-ADM 803(E.1.) at which such incoming correspondence shall not be considered for for [sic] outside purchase for the purpose of an approve [sic] vender [sic], see [DC-]ADM-803(E.1.a) [pertaining to inmate mail and incoming publications]." (C.R., Item No. 3, Exhibit B.) The institution's response to the Inmate Request stated: "Photo Affections are [sic] not permitted, not an approved vendor per DC-ADM 815."[1] Id.

         Appellant thereafter filed an Official Inmate Grievance claiming that his family members used Photo Affections because it was convenient for them. (C.R., Item No. 3, Exhibit C.) Appellant also stated that DC-ADM 803 permits inmate possession of incoming photographs "where no criteria have been violated in accordance with DC-ADM 803." Id. at 1. Appellant further claimed SCI-Coal Township "failed to carry out the established procedures set forth in DC-ADM 803(E.2.f)[2] where all photographs [are] viewed against the criteria listed in Section E.3 [pertaining to review of photographs] and…review and notify…[the inmate] if the photographs meet the criteria of Section E.3, and deny or approve it's [sic] entry into the institution." Id. at 2.

         SCI-Coal Township denied Appellant's Official Inmate Grievance in its Initial Review Response stating: "[a]ll mail is processed according to Policy DC-ADM 803. Photographs were received for you from a company named Photo Affections which is not an approved vendor; therefore they were denied." (C.R., Item No. 3, Exhibit D.)

         Appellant filed an Appeal to Facility Grievance Manager asserting:

[DC-]ADM-815 Policy…may not be circumvented for the denial of photographs pursuant to [DC-]ADM-803 Section 3, E.1.a [pertaining to general procedures for incoming publications]…[t]he photographs [Appellant] received was in facts [sic] sent directly from the original source as required by [DC-]ADM-803, Sec. 3, E.1.b.c.e….However, the denial form/response by [the mailroom supervisor] confirms that Photo Affections is in fact a company, giving rise that the photographs was [sic] sent from an original source as required by [DC-]ADM-803, sec. 3, E.1.b.e.f.g. [Therefore, Appellant's] photographs must be permitted pursuant to [DC-]ADM-803 policy, sec. 3, E.1 where no violation of such criteria has been violated....

         (C.R., Item No. 3, Exhibit E at 1-2.)

         SCI-Coal Township filed its Facility Manager Appeal Response, and upheld the Initial Review Response stating: "[y]ou are interpreting the policy incorrectly…. Mailroom [s]upervisor is very good at what she does and the rejection of your photographs was in fact in accordance with policy." (C.R., Item No. 3, Exhibit F.)

         Appellant then filed an Inmate Appeal to Final Review and objected to the Facility Manager Appeal Response upholding the Initial Review Response and the "circumvention of [Department] Policy, incorrectly denying [Appellant's] photographs that meets [sic] the criteria of incoming mail of Section 3 of [DC-] ADM 803." (C.R., Item No. 3, Exhibit G.)

         In response, the Secretary of the Department of Corrections (Department) issued a Remand Grievance in order to allow SCI-Coal Township to "provide [Appellant] with a revised response." (C.R., Item No. 3, Exhibit H.) Thereafter SCI-Coal Township issued its Initial Review Response (Reissued Response) denying Appellant's grievance and stating, "prior to [this] remand, the Mailroom [at SCI-Coal Township] destroyed the photographs because you did not provide the cash slips within ...


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