IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Purcell Bronson,                         :
                          Petitioner     :
                                         :
             v.                          :   No. 610 M.D. 2017
                                         :   Submitted: May 25, 2018
John Wetzel, Michele McMullen,           :
Barry Smith,                             :
                       Respondents       :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                         FILED: June 26, 2018

             Inmate Purcell Bronson (Bronson), representing himself, filed a
petition for review (complaint) in this Court’s original jurisdiction against John
Wetzel, Secretary of the Department of Corrections (DOC), and two DOC
employees (collectively, Respondents). Through the complaint, Bronson alleges
Respondents are violating his rights under DOC Policy DC-ADM 007 (“Access to
Provided Legal Services”) (Policy) as it relates to the amount of time he may use the
prison law library on a weekly basis. Respondents filed a preliminary objection,
challenging the legal sufficiency of the complaint.      Upon review, we sustain
Respondents’ preliminary objection and dismiss the complaint.


                                  I. Background
             Through his complaint, which he initially refers to as a “petition for
writ of mandamus,” Bronson avers the following facts. Pet. for Review at 2.
Bronson is currently incarcerated at the State Correctional Institution at Houtzdale
(SCI-Houtzdale). Respondent Barry Smith is the Superintendent of SCI-Houtzdale
and is responsible for the overall operation of the prison as well its personnel’s
compliance with DOC policies. Respondent Michele McMullen is the school
principal at SCI-Houtzdale and is responsible for overall operation of the law library.
Respondent Wetzel, Secretary of DOC, is responsible for DOC’s overall operation
and the promulgation of policies governing all state prisons.


             Bronson avers Respondents instituted an arbitrary practice of closing
the prison population’s law library when they feel they need not open it, in violation
of DOC policy. He alleges that the intent of Respondents’ practice is to limit his
time in the law library, “to one hour, twice a week, if that, and hender [sic], and
obstruct prisoners’ presentation of petitions to the courts.” Pet. for Review at 3.


             Bronson further avers that Respondents refuse to follow the Policy,
which states: “Research periods will be schedule[d] and assigned in time blocks of
two hours each, for a maximum of six hours per week.” Id. (emphasis added).
Despite the language of the Policy, Bronson alleges the Policy requires Respondents
to provide him access to the law library for two hours a day, three days a week.


             He also avers Respondents’ practices are discriminatory in that they
allow restricted housing unit (RHU) prisoners this access when, for all practical
purposes, Bronson and the RHU prisoners are similarly situated. Bronson avers
Respondents have no rational basis for ignoring the Policy. He alleges Respondents
have a legal duty not to infringe on his rights as provided by prison administrative
regulations and the law.



                                          2
             He further generally avers Respondents’ actions were intentional and
served no important penological interest. Bronson alleges his interest is his right to
be free from discriminatory treatment as well as enjoyment of his law library access
for the purpose of obtaining his release from prison. He avers he has no other
adequate legal remedy to contest Respondents’ practices, and he exhausted his
prison remedies.


             As a result of Respondents’ actions, Bronson alleges, his rights as
protected by the First and Fourteenth Amendments to the U.S. Constitution were
violated. He seeks a declaratory judgment that Respondents’ actions, practices, and
policies are discriminatory and serve no important penological interest. Bronson also
seeks injunctive relief, requiring Respondents to abide by the Policy and provide
him access to the law library, for two hours a day, three days a week.


             In response to the complaint, Respondents filed a preliminary objection
in the nature of a demurrer. Bronson filed an answer to the preliminary objection.
The parties filed briefs in support of their positions on the preliminary objections.
This matter is now before us for disposition.


                                   II. Discussion
             A demurrer tests the legal sufficiency of the complaint. Christ the King
Manor v. Dep’t of Pub. Welfare, 911 A.2d 624 (Pa. Cmwlth. 2006) (en banc), aff’d,
951 A.2d 255 (Pa. 2008) (per curiam). In ruling on a preliminary objection in the
nature of a demurrer, this Court accepts as true all well-pled allegations of material
fact, as well as all inferences reasonably deducible from those facts. Id. However,

                                          3
this Court need not accept unwarranted inferences, conclusions of law,
argumentative allegations, or expressions of opinion. Id. For preliminary objections
to be sustained, it must appear with certainty that the law will permit no recovery.
Id. Any doubt must be resolved in favor of the non-moving party. Id.


                                   A. Contentions
             Respondents argue that, to the extent Bronson attempts to assert an
access to courts claim based on his limited use of the law library, he does not
sufficiently aver actual injuries. In order to state a viable claim, Respondents
contend, an inmate must show a non-frivolous legal claim was frustrated or impeded.
Lewis v. Casey, 518 U.S. 343 (1996). Respondents maintain an inmate must also
allege an actual injury to his litigation efforts. Id. Further, a viable access to the
courts claim must allege the responsible state officials “wrongfully and intentionally
conceal[ed] information crucial to a person’s ability to obtain redress through the
courts … for the purpose of frustrating that right, and that concealment, and the delay
engendered by it substantially reduce[d] the likelihood of one’s obtaining the relief
to which one is otherwise entitled.” Gibson v. Superintendent of N.J. Dep’t of Law
& Pub. Safety Div. of State Police, 411 F.3d 427, 445 (3d Cir. 2005).


             Respondents contend that Bronson indicates the law library is closed at
times, and that “hender [sic] and obstruct prisoners’ presentation of petitions to the
courts.” Resp’ts’ Br. at 4 (quoting Pet. for Review at 3). They maintain Bronson
does not indicate any dates he was denied access to the law library or any injury
resulting from the alleged denial of access such as delayed filings, cases lost, or
damages incurred. Respondents argue such a deficient claim warrants dismissal.



                                          4
             Respondents further assert that Bronson’s claim that Respondents
violated the Policy should be dismissed as DOC policies do not create enforceable
rights. Weaver v. Dep’t of Corr., 829 A.2d 750 (Pa. Cmwlth. 2003). Additionally,
they argue Bronson’s attempts to aver Policy violations do not state a viable claim.
Taken as true, Respondents assert, Bronson’s averments indicate he is receiving two
hours of law library time per week, the minimum outlined in the Policy. More
importantly, they contend, Bronson’s averments that the Policy is violated when he
is afforded a lesser amount of time per week in the law library do not state a viable
claim.


             Bronson counters that for approximately five years he was deprived of
his full law library access of two hours a day, three days a week for no important
penological reason.


             He argues the crux of his equal protection claim is that Respondents
arbitrarily and unfairly grant full access to the law library to RHU inmates in
accordance with the Policy and 37 Pa. Code §93.8(8) (requiring that inmates have
reasonable access to certain enumerated legal reference materials, including,
“[o]ther materials which may assist inmates to prepare their own legal documents”)
rather than those inmates in the prison’s general population. Bronson contends he
can show Respondents are exercising their discretion in a discriminatory fashion or
that they are disregarding the Policy. He maintains that, as the U.S. Supreme Court
stated in Bell v. Wolfish, 441 U.S. 520, 538-39 (1979), “if a restriction or condition
is not reasonably related to a legitimate goal – if it is arbitrary or purposeless – a
court permissibly may infer that the purpose of the government action is punishment



                                          5
that may not constitutionally be inflicted …. ” Bronson argues prisoners enjoy
privileges that can be taken away if they misbehave, but he has not done so here. He
contends that when a prisoner loses the opportunity “to … use the library … he has
lost much. …” Pet’r’s Br. at 8 (citing Redding v. Fairman, 717 F.2d 1105, 1116 (7th
Cir. 1983)). Thus, he maintains, prisoners must be protected from arbitrary actions
extinguishing their privileges.


                Bronson further argues that federal and state courts find due process
violations where state or local prison officials fail to enforce or follow their own
regulations.1


                In addition, he asserts the pertinent part of the Policy uses mandatory
language, and Respondents lack discretion not to adhere to the Policy. He maintains
government agencies must follow their own published regulations even when a
particular decision involves some discretion. Griffin v. Harris, 571 F.2d 767 (3d Cir.
1978).


                Bronson also argues a “library interest” entitled to protection under the
14th Amendment may be created by administrative regulation, Pet’r’s Br. at 9 (citing
Winsett v. McGinnes, 617 F.2d 996 (3d Cir. 1980)), and may be rooted in prison
rules or regulations or official policies or practices. Meachum v. Fano, 427 U.S. 215
(1976). He asserts his interest in the Policy is sufficient to state a claim.


       1
          See Yellin v. United States, 374 U.S. 109 (1963); Voge v. United States, 844 F.2d 776
(Fed. Cir. 1988); United States ex rel. Checkman v. Laird, 469 F.2d 773 (2d Cir. 1972); Carpenter
v. Civil Serv. Comm’n, 813 P.2d 773 (Colo. App. 1990); Lathop v. Brewer, 340 F. Supp. 873 (D.
Iowa 1972).

                                               6
                                     B. Analysis
                               1. Access to the Courts
             An inmate alleging a violation of the right of access to the courts must
show an actual injury. Lewis; Bounds v. Smith, 430 U.S. 817 (1977). Prison inmates
enjoy a fundamental constitutional right of access to the courts. Lewis; Bounds;
Bronson v. Horn, 830 A.2d 1092 (Pa. Cmwlth. 2003). The right of access “requires
prison authorities to assist inmates in the preparation and filing of meaningful legal
papers by providing prisoners with adequate law libraries or adequate assistance
from persons trained in the law.” Bounds, 430 U.S. at 828; accord Bronson.


             The U.S. Supreme Court clarified the contours of this right, holding
that, to prevail on a claim that inadequate legal materials or assistance resulted in a
denial of access to the courts, an inmate must establish he incurred an “actual injury,”
that is “the alleged shortcomings in the library or legal assistance program hindered
his efforts to pursue a legal claim.” Lewis, 518 U.S. at 351; accord Moss v. Dep’t
of Corr., 868 A.2d 615 (Pa. Cmwlth. 2004). In other words, an inmate bringing an
action based on a violation of his right to access to the courts must allege he was
hindered from adequately pursuing litigation in some specific manner. Lewis. An
inmate may make such a showing by alleging his complaint was dismissed or he was
precluded for some reason from even filing a complaint. Id. For example, an inmate
must show
             that a complaint he prepared was dismissed for failure to
             satisfy some technical requirement which, because of
             deficiencies in the prison’s legal assistance facilities, he
             could not have known. Or that he had suffered arguably
             actionable harm that he wished to bring before the courts,
             but was so stymied by inadequacies of the law library that
             he was unable even to file a complaint.




                                           7
Lewis, 518 U.S. at 351. Further, the injury requirement is not satisfied by any type
of frustrated legal claim, but only by claims relating to direct appeals from criminal
convictions involving incarceration, habeas petitions and civil rights actions to
vindicate basic constitutional rights. Lewis; Moss.


               The actual injury requirement ensures that courts provide relief to
inmates only when they have suffered or will imminently suffer actual harm and
prevents courts from undertaking tasks assigned to the other political branches.
Lewis. Thus, an inmate who cannot show he was hindered in bringing his claims or
that he was otherwise injured by any alleged unconstitutional deficiencies in prison
resources lacks standing to bring a claim of denial of access to the courts. See Lewis.


               Applying these principles here, Bronson was required to allege he was
actually harmed by the Policy. Our review of Bronson’s complaint discloses no
specific averment of any actual injury. Rather, he generally avers that limiting his
time in the law library to two hours per week hinders “presentation of petitions to
the courts.” Pet. for Review at 3. In the absence of any specific averment, Bronson
fails to state an adequate claim for denial of access to the courts.2


                               2. Claims Based on the Policy
               Bronson’s complaint also purports to state claims for mandamus,
injunctive relief, declaratory relief and a violation of his right to equal protection, all

       2
          In his answer to Respondents’ preliminary objection, Bronson states that his claim “is not
one of denial of access to the court per se [sic], rather its [sic] a denial of access to the Policy’s
benefit.” Pet’r’s Resp. in Opp’n to Resp’ts’ Prelim. Objs. at ¶2 (emphasis added). Thus, to the
extent Bronson purported to state a claim for denial of access to the courts in his complaint, see
Pet. for Review at 3, he does not argue that his failure to set forth any specific averment of actual
injury in support of such a claim could be cured by amendment.

                                                  8
of which are premised on his allegations that Respondents’ actions violate the
Policy. Regardless of the manner in which Bronson attempts to characterize the
causes of action alleged in his complaint, however, “[a] prison authority’s adoption
of policies and practices creates neither rights in inmates nor a constitutionally
protected interest triggering the inmates’ due process protection.” Orozco v. Pa.
Dep’t of Corr. (Pa. Cmwlth., No. 268 C.D. 2013, filed January 14, 2014), 2014 WL
117475 (unreported) (citing Olim v. Wakinekona, 461 U.S. 238 (1983); Weaver;
Bullock v. Horn, 720 A.2d 1079 (Pa. Cmwlth. 1998)). Thus, “[a] failure to comply
with prison policy is not a basis for a cause of action.” Rawlings v. Wetzel (Pa.
Cmwlth., No. 562 M.D. 2016, filed October 20, 2017), slip op. at 7, 2017 WL
4701136 at *3 (unreported) (citing Africa v. Horn, 701 A.2d 273 (Pa. Cmwlth.
1997)) (emphasis added); see also Shore v. Dep’t of Corr, 168 A.3d 374, 386 (Pa.
Cmwlth. 2017) (citing Tindell v. Dep’t of Corr., 87 A.3d 1029 (Pa. Cmwlth. 2014);
Bullock) (“[A]llegations that [DOC] failed to follow its regulations or internal
policies cannot support a claim based upon a vested right or duty because these
administrative rules and regulations, unlike statutory provisions, usually do not
create rights in prison inmates.”).


             To that end, the Policy, on which Bronson relies here, expressly states:

             This policy does not create rights in any person nor should
             it be interpreted or applied in such a manner as to abridge
             the rights of any individual. This policy should be
             interpreted to have sufficient flexibility to be consistent
             with law and to permit the accomplishment of the
             purpose(s) of the policies of [DOC].

DC-ADM 007, Section VI (emphasis added).



                                         9
             In Weaver, this Court held that identical, “disclaimer” language in
another DOC policy was “sufficient to dispel any reasonable expectation that an
enforceable right [was] created by the DOC policy.” Id. at 753. We reach the same
result here. Thus, Bronson cannot state a cause of action based on an alleged
violation of the Policy here. Id.


             Further, Bush v. Veach, 1 A.3d 981 (Pa. Cmwlth. 2010), relied on by
Bronson, is distinguishable. There, an inmate was removed from his job in the
prison’s kitchen when he was caught taking unauthorized food.              This Court
concluded that the petitioner could not state a due process claim against prison
employees because he did not have a property right in his prison job. However, a
divided panel of this Court concluded the petitioner sufficiently alleged a cause of
action for a violation of his rights established by DOC regulations. Specifically, the
process for removing the petitioner from his job was set forth in Section 93.10 of
DOC’s regulations, 37 Pa. Code §93.10. Section 93.10(a)(2)(v) states that an inmate
found guilty of certain misconduct may be removed from his job. 37 Pa. Code
§93.10(a)(2)(v). However, the regulation provides procedures for imposing such
discipline, including written notice of the charges, a hearing, and an opportunity for
the inmate to tell his story and to present evidence. 37 Pa. Code §93.10(b)(1)-(3).
Ultimately, this Court held, because the petitioner received neither written notice nor
any of the other procedures outlined in the regulation, he stated a cause of action for
violation of the regulatory disciplinary process.


             Aside from the obvious factual distinction that Bush involved an
inmate’s permanent removal from a prison job and this case does not, unlike the



                                          10
inmate in Bush, who sufficiently alleged he was deprived of rights expressly
provided for in DOC’s regulations, as stated above, the Policy at issue here expressly
states that it creates no rights in any person.3
               Based on the foregoing, we sustain Respondents’ preliminary objection
and dismiss Bronson’s complaint, with prejudice.




                                              ROBERT SIMPSON, Judge



       3
         Further, while Bronson cites Section 93.8(8) of DOC’s regulations, 37 Pa. Code §93.8(8),
which states that inmates will be afforded reasonable access to certain enumerated legal reference
materials, including “[o]ther materials which may assist inmates to prepare their own legal
documents[,]” he does not identify any materials that he did not receive, which would assist him
in the preparation of his legal documents.
        In addition, Bronson asserts his complaint states a claim for violation of his right to equal
protection because Respondents arbitrarily and unfairly “grant[] privileges within the prison as to
full access to the [l]aw [l]ibrary in accord with [the Policy] and 37 Pa. Code §93.8(8).” Pet’r’s Br.
at 8. He contends prisoners in the RHU receive greater access to the law library than prisoners
housed in the prison’s general population.
        Section 1 of the 14th Amendment to the U.S. Constitution provides, in relevant part: “No
State shall … deny to any person within its jurisdiction the equal protection of the laws.” U.S.
CONST. amend. XIV, §1. Article 1, Section 26 of the Pennsylvania Constitution declares: “Neither
the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment
of any civil right, nor discriminate against any person in the exercise of any civil right.” PA.
CONST. art. I, §26. “Together, [Article 1, Section 1 and Article 1, Section 26 of the Pennsylvania
Constitution] are understood to establish a right to equal protection of the laws equivalent to that
established in the United States Constitution.” Smires v. O’Shell, 126 A.3d 383, 393 n.7 (Pa.
Cmwlth. 2015). “Our Supreme Court has held that ‘[t]he Equal Protection Clause … does not
obligate the government to treat all persons identically, but merely assures that all similarly[-
]situated persons are treated alike.’” Garrison v. Dep’t of Corr., 16 A.3d 560, 564 (Pa. Cmwlth.
2011) (quoting Small v. Horn, 722 A.2d 664, 672 (Pa. 1998)). Further, “in order to properly state
an equal protection claim, [a petitioner] must allege that he is receiving different treatment from
that received by other similarly-situated individuals due to his membership in a particular class
and his assertions of intentional disparate treatment must be supported by specific factual
allegations.” Mobley v. Coleman, 110 A.3d 216, 222 (Pa. Cmwlth. 2015) (emphasis added). Here,
Bronson’s claims of disparate treatment are not supported by specific factual allegations, and he
does not seek leave to amend his complaint in an effort to supply such allegations.

                                                11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Purcell Bronson,                        :
                         Petitioner     :
                                        :
            v.                          :   No. 610 M.D. 2017
                                        :
John Wetzel, Michele McMullen,          :
Barry Smith,                            :
                       Respondents      :


                                      ORDER

            AND NOW, this 26th day of June, 2018, the preliminary objection filed
by Respondents John Wetzel, Michele McMullen and Barry Smith is SUSTAINED,
and Petitioner Purcell Bronson’s petition for review is DISMISSED, with prejudice.




                                       ROBERT SIMPSON, Judge