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HomeMy WebLinkAbout09-6128270 Prob (pop 1) IN Z? COURT OF COMMON PLEAS OF COUNTY, NSYLVANIA CIVU, DIVISION KiGx-xA l SyA b (Plaintiff) vs ?o??n ?' Ai?y,? M'?i Kew e- z)uj Z" 1.4w.Tkv /a A rat 9,4 ?? (Deters ant) - No. D ?7 - (- /-) P C'?cP Tom,., . PETITION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND NOW, comes the laintif /defendant) r-e&WM1b BY2b , and respectfully reque s Honorable Court for leave to proceed in Forma Pauperis in the above captioned case. In support of this Petition, (plaintiff/defendant) avers as follows: 1. laintif /defendant) desires to ommence a Civil Action Appeal) to the Court of Common Pleas but is without the funds to pay tE-e-I'lling fee. 2. a ntiff' defendant's) financial affairs are set forth in a verified Statement, a copy of which is attached to this petition as Ezhibit A. 3. If 1 of defendant) 's not permitted to Commence a Civi ctio Appeal) in Forma Pauperis, hI/she will be denied due p`ocr ess o Law an or his/her rights under the Constitution of the United States and the Constitution of the Commonwealth of Pennsylvania. WHEREFORE, ( laintif defendant) prays this Honorable Court to grant this Petition and o a , ow him/her to proceed without payment of the required fees. RESPECTFULLY SUBMITTED, i"A& 1-2m- - - (P inti /delf endant) FLM-OFFICE OF THE PPOTHO OTARY 2009 SEP - 8 Pty 4: 0 3 PENNSYLVANIA 27o pfea (pop 2) IN TIM COURT OF COMMON PLZAS OF COUNTY, PENNSYLVANIA CIVIL DIVISION (Plaintiff) vs No. 09 G ra '?T. ?? t A4 n Ca * Moe. IN FOMM PADpE?tN "eA 0 (Defendant) 1. I am the Vi_ntiff defendant) in the above matter and because of my financia: condition am ua a to pay the fees and costs of prosecuting or defending thu action or proceeding. 2. I as unable to obtain funds from anyone, including my family and associates, tc pay the costs of litigation. 3. I represent that the information below relating to my ability to pay the fees ant costs is true and correct (a) names S.S. # I8J - 57L-address: 11 S SS 0 hone: A VA citys.WM- gU1,Cy state: zip code:? S ?7D (b) ZXPLOYMZNT If you are presently employed complete the following: employer: A(/,4 phones- address: ,Q employee I. v. All A city: / ,/A state: zip code: monthly salary or wages: S /?4 type of work: If you are presently unemfllowd, please complete the following: date last worked: /A monthly salary or wages: S 5i4 type of work: r4/,4 (c) OTHZR INCOME WITHIN THZ PAST TWELVE MONTHS Business or profession:$ Other self-employment:$ U Interest earned:$ Dividends:$ Pension and annuities:$ Social Security benefits:$ Support payments:$ 0 Disability payments:$__ Unemployment compensation and supplemental benefits:$ Workmen's Compensation:5 Public Assistance:$ Z> Other (explain):$ (list amounts for each and explain) rmnw(PW n (d) OTHER CONTRIBUTIONS TO HOUSEHOLL (wife's) (husband's) name: ?g If wife or husband is employed, employer: 141A address: A city: monthly salary or wages: $__J2 Contributions from children: $ Contributions from parents: $ Other contributions (explain): $ SUPPORT please complete the following: phone: ?/.4 employee I.D.# ,44 state: zip code: type of work: AI/.4_ - (e) PROPERTY OWNED: N IA Cash: $ O Checking account: S savings account: $? Certificates of Deposit (CDs): $ Real estate (including house): $ Motor vehicle(s): Make: model: QTQ? year; Purchase price: $ amount owed: $_? Make: Nye, model: Ale), ? ____year: .a Purchase price: $ © amount owed: $ p Stocks; bonds: $ Other (explain): $ (f) DEBTS AM OBLIGATIONS: Mortgage: S D Rent: S © Loans: S Other (explain): $ Q (g) " PERSONS DEPENDENT UPON YOU FOR SUPPORT: (wife's) (husband's) name: Children, if any: Name: O2f, Age: Nam: W 6-A.* Age: Name : A n -e Age : Other persons: Name: Relationship: Name: 6-*- - Relationship: 4. I understand that I have a continuing obligation to inform the Court of improvement in my financial circumstances which would permit me to pay the costs incurred herein. S. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 1SPa.C.S., paragraph 4904, relating to unsworn falsification to authorities. Date: U US 31, /09 V Petitioner: XO kill i L 1, VJAt'?? (3Vb, do hereby aver that copies of the attached/enclosed CI YI I ? zo have been mailed to the below listed person(s) by First Class Mail, postage paid, on - Z- -2009 in compliance with Pa. Rules of Criminal Procedure, Rules 576, 577, and 9023. This service also satisfies .the requirements of the Prisoner's Mailbox Act with a Certificate of Mailing (Com. v. Jones 700 A.2d 423; Huston v. Lack 108 S.Ct. 2379): Service by First Class Mail: J COVr?°' ? ??ieK t?? ?n ?dvvSe ?vax`e l? ?7Cat 3 Respectf idly Submitted, C Greene 175 Progress Drive Waynesburg, PA 15370 Fl FFa OF THE TW.WTARY 2009 SEP -8 PM 4: 03 t # NSYLVANLA, 6 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION REGINALD BYRD Plaintiff, s s s Case No. DT.G / , ? a&f.7Z-61- -against- JOHN HORNER, JEFFREY DITTY, MICHAEL RAZOR, sued in their individual and official capacities, and REENE ZOBITNE LTZHU ZHONG, C/O TOTTEN, SGT. TAYLOR, AGENT ARNOLD AND C/O PARUSO, sued in their individual capacities. Defendants. CIVIL RIGHTS VIOLATION JUDGE TRIAL DEMANDED WRIT OF SUMMONS TO You are hereby notified that Reginald Byrd has commenced an action against you. Date By IN ME CK?lT CW CMSW PLEM C[lR W&M 0000 f• P' ' lLVAWK CIVIL wisram Reginald Byrd s Plaintiff, -against- ; John Horner, Jeffrey Ditty, Michael Kasor, sued in their s individual and official s capacities, and Reene Zobitne, s L IZHU ZHOW, C/0 TOTTEN, ; SGT. TAYLOR, AGENT ARNOW AND C/O PARUSO, sued in their s individual capacities. : Defendants. : Case No. CIVIL RIGHTS VIOLATION JUDGE TRIAL DEMANDED Acoeptanoe of 9a TIM I accept service of the Cowlaint on behalf of Date and certify that I am authorized to do so. Defendant or Authorized Agent Mailing Address IN TAE COMT OF CAN PIEASr CO NWf PEW&-YLVANIA CIVIL DIVISIOK Reginald Byrd Plaintiff, Case No. -against- CIVIL RIGHTS VIOLATION John Horner, Jeffrey Ditty, Michael Kazor, sued in their JUDGE TRIAL DEMANDED individual and official capacities, and Reene Zobitne, LIZHU ZHONG, C/O TOTTEN, - SGT. TAYLOR, AGENT ARNOLD AND C/0 PARUSO, sued in their individual capacities. Defendants. NOTICB You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgement may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may loose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOL'T AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford St. Carlisle, Pa. 17013 Ph. 717-249-3166 800-990-9108. NINTH JUDICIAL DISTRICT COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL DIVISION REGINALD BYRD, Plaintiff, -against- JOHN HORNER* JEFFREY DITTY, MICHAEL RAZOR, sued in their individual and official LIZHU ZHONG, C/O TOTTEN, SGT. TAYLOR, AGENT ARNOLD AND C/O PARUSO, sued in their individual capacities. COMPLAINT JUDGE TRIAL DEMANDED 7Lv . 0 5- G I a 8 C?.;Q Defendants. Preliminary Statement This is a civil rights action filed by Reginald Byrd, a state prisoner, for damages and injunctive relief under 42 U.S.C. § 1983, alleging retaliation in violation of the First and Fourteenth Amendments to the United States Constitution. Jurisdiction 1. The court has jurisdiction over the plaintiff's claims of violation of federal constitutional rights under Article I $ 11 of the Pennsylvania Constitution and 42 Pa. C.S.A. §§ 912 and 931. Parties 2. The plaintiff, Reginald Byrd, was incarcerated at Camp Hill Correctional Facility ("Camp Hill") during the events described in this complaint. 3. Defendant John Horner is the Major of Unit Management at Camp Hill and is in charge of Supervising all correctional Officers in the facility and the Unit Management teams assigned to each housing unit. He is sued in his individual and official capacity. 4. Defendant Jeffrey Ditty is a deputy Superintendent at Camp Hill and is in charge of supervising the Diagnostic and Classification departments. He is sued in his individual and official capacity. 5. Defendant Michael Razor is a deputy Superintendent at Camp Hill and is in charge of centralized services responsibile for inmates activities in the institution. He is sued in his individual and official capacity. 6. Defendant Reene Zobitne is a Unit Manager employed at Camp Hill and is in charge of inmate affairs and supervison of unit officers assigned to her housing unit. She is sued in her individual capacity. 7. Defendant Lizhu Zhong is the law librarian employed at Camp Hill and is in charge of scheduling inmates for the law library. She is sued in her individual capacity. 8. Defendant Taylor is a correctional sergeant employed at Camp Hill and is in charge of supervising inmate housing units in which he is assigned. He is sued in his individual capacity. -2- 9. Defendant Totten and Parma* are correctional officers employed at Camp Bill their first names are presently unknown to plaintiff. They are sued in their individual capacities. 10. All the defendants have acted, and continue to act, under color of state law at all times relevant to this complaint. Fla tit 11. An April 21, 2009 plaintiff entered the Department of Corrections hereinafter D.G.C. entered at S.C.I. Graterford and received the I.D. commitment of Reginald Byrd 82-9223. 12. However on April 24, 2009 upon being transfered to Camp Hill plaintiff was processed as his old commitment name Bernard Smith. 13. Without success plaintiff plead his case that Bernard Smith vas not his proper name. 14. Plaintiff was then placed on the intake unit R-Block with the commitment name Bernard Smith. 15. For approximately tvo(2) weeks plaintiff underwent being denied access to legal materials, and harassment as to what was his actual commitment identification. 16. on may 5, 2009 plaintiff was transfered to A block this time under his original commitment name Reginald Byrd. 17. On the same day May 5, 2009 plaintiff submitted a request slip to attend the law library explaining he had a deadline of may 15, 2009. Retaliation 18. Defendant Lizhu Zbong received plaintiff's request slip on may 8, 2009 and scheduled plaintiff for the law library may 20, 2009. -3- 19. Defendants Horner, Ditty, Razor, and Zobitne were in concert that plaitinff would be placed in a safety hazardous cell once transfered to A Block. 20. Plaintiff objected to the cell but was told a work order was in, and the only other alternative was the Restrictive Housing Unit hereinafter RHU. 21. It was further brought to plaintiff's attention that A block rear, was the designated area for problem inmates. 22. On May 12, 2009, through a program agent the plaintiff learned his files, were still tainted with commitment information of Bernard Smith. 23. Plaintiff after learning his files contained harmful information and because he hadn't received a answer back from the defendant Zhong, he sent a request slip to defendant Razor. 24. Plaintiff explained in his request he was being retaliated against, and harassed because of a civil suit he filed in the past as, Bernard Smith, the D.O.C. being the defendant. 25. On May 20, 2009, plaintiff submitted another request slip to defendant Jeffrey Ditty as he hadn't received a response from defendant Michael Kazor. 26. On may 22, 2009, plaintiff submitted a request slip to defendant Reene Zobitne because he hadn't received a clean clothing exchange in a month. 27. Defendant Zobitne returned plaintiff's request slip responding that his request would not be processed. 28. On May 29, 2009, plaintiff had an interview with defendant Arnold his parole agent who basically evaluated plaintiff as Bernard Smith. -4- 29. Defendant Arnold told plaintiff he would be made a level three, also that he would be on parole hold at Camp Bill until parole reviev. 30. On June 1, 2009, because plaintiff couldn't get a grievance form from the housing unit he submitted a request slip as a grievance. 31. on June 2, 2009 plaintiff received form sent by the Assistant of the Superintendent. 32. The very next day plaintiff submitted his grievance on official grievance form. 33. On June 10. 2009, plaintiff vas denied access to the lav library by defendant Totten in the presence of defendant Zobitne. 34. The same day because plaintiff continued to be retaliated against and harassed he submitted a request slip to defendant John Horner. 35. Defendant Taylor had been denying A block rear, cleaning supplies vhile also participating in the harassment. 36. The defendant Horner instead of responding himself to plaintiff, responded thru defendant Zobitne with whom plaintiff vas having problems. 37. Defendant Zobitne van also made the grievance officer responsible for answering plaintiff's grievance. See Exhibit A. 38. on June 17, 2009, plaintiff vas again denied access to the lav library by defendant Paruso. 39. Because the plaintiff vasn't able to make it to the lav library he had to have his cellmate, zerox copy his appeal to the grievance response. See Exhibit B. 40. on June 20, 2009, plaintiff vas directed to pack all his -5- belongings as he was being transfered to a different prison. 41. Plaintiff, however, had just previously submitted his parole home plan, and his appeal of the grievance response in the prison request box. 42. The next day plaintiff was sent to S.C.I. Greene, which is the state's highest security prison, and discovered he was now a level four(4) inmate. 43. On July 16, 2009, plaintiff learned from his trial judge a legal document he had mailed out from Camp Hill never was sent out to it's destination. Claims for Relief 44. The actions of defendants Razor and Ditty in their failure to respond, and investigate plaintiff request slips as to retaliation, constituted deliberate indifference contributing to also proximately causing the continuous harassment and violation of plaintiff's First and Fourteenth Amendments to the United States Constitution. 45. The actions of defendant Lizhu Zhong in her deliberate disregard of plaintiff's emergency request for access to the law library to meet his legal deadline was done maliciously and constituted retaliation in violation of plaintiff's First and Fourteenth Amendments to the United States Constitution. 46. The actions of defendant John Horner in allowing defendant Zobitne to handle plaintiff's complaints when defendant Zobitne was named as one of the responsible parties participating in the acts causing plaintiff's harms constituted deliberate indifference, and proximately causing the continuous harassment and violation of plaintiff's First And Fourteenth Amendments to -6- the United States Constitution. 47. The actions of defendant Arnold in reclassifying plaintiff, to a level four (4) inmate from a level three (3) inmate, because he filed a grievance was done maliciously and constituted retaliation in violation of the First and Fourteenth Amendments of the United States Constitution. 48. The actions of defendants Zobitne, Taylor, Totten and Paruso in subjecting plaintiff to harassment and discriminatory treatment because of his series of complaint filing constituted retaliation in violation of the First and Fourteenth Amendments to the United States Constitution. 49. The actions of defendants Zobitne, Horner, Kazor and Ditty in having plaintiff transferred to interfere with his grievance process and parole preparation constituted retaliation in violation of the First and Fourteenth Amendments of the United States Constitution. 50. The actions of all defendants were maliciously done also because of plaintiff's past filing of a civil action against the D.O.C. as Bernard Smith and constituted retaliation in violation of the First and Fourteenth Amendments. Relief Requested WHEREFORE, plaintiff requests that the Court grant the following relief: A. Issue a declaratory judgment stating that: 1. The failure to act on plaintiff's claims of harassment and discriminatory treatment by defendants Kazor and Ditty violated plaintiff's rights under the First and Fourteenth -7- Amendments to the United States Constitution. 2. The harassment and discrimnatory treatment of plaintiff by defendants Zobitne, Taylor, Paruso, and Totten violated plaintiff's rights under the First and Fourteenth Amendment to the United States Constitution. 3. Defendant Lizhu Zhong's denying plaintiff's emergency request to attend the law library, to, meet his legal deadline, because of his past filing of a civil suit against the D.O.C. violated plaintiff's rights under the First and Fourteenth Amendments to the United States Constitution. 4. Defendant Arnold's reclassifying of plaintiff to a level four inmate from a level three inmate because of past and present filing of complaints, violated plaintiff's rights under the First and Fourteenth Amendments to the United States Constitution. 5. Defendant Horner's assigning of someone in a bias, capacity to address plaintiff's allegations violated plaintiff's rights under the First and Fourteenth Amendments to the United States Constitution. 6. The decision to have plaintiff transferred by defendants Zobitne, Horner, Kazor, and Ditty because of past and present filing of complaints violated plaintiff's rights under the First And Fourteenth Amendments to the United States Constitution. B. Issue an injunction directing defendants Horner, Zobitne, Kazor, Ditty, and Arnold or their agents to: 1. Immediately reverse the effects of the punitive reclassification and transfer of plaintiff. -8- C. Award compensatory damages in the following amounts: 1. $5.500.00 jointly and severally against defendants Horner, Razor, Bitty, and Zobitne for the injuries resulting from their retaliatory intentions towards plaintiff. 2. $2.000 against defendant Lizhu Zhong for the injury resulting from defendant's retaliatory act in dealing with plaintiff's legal deadline. 3. $2,000 against defendant Arnold for the injury resulting from the retaliatory act of reclassifying plaintiff. 4. $1,300 jointly and severally against defendant's Taylor, Totten, and Paruse for the injuries resulting from their harassment and retaliatory acts against plaintiff. D. Award punitive damages in the following amounts: 1. $3,000 each against all defendants. E. Grant such other relief as it may appear that plaintiff is entitled. Dated: August ?, 2009 Respectfully submitted, Reginald Byrd, HZ-9223 175 Progress Drive Waynesburg• PA 15376 -9- VERIFICATION It Reginald Byrd, certify that the foregoing is true and correct to the best of my knowledge, information and belief, subject to the penalties under IS Pa.C.S.A. § 4904 relating to unsworn falsification to authorities. Dated: August 31 , 2009 Respectfully submitted, l /-% n Reg ftald Byrd / Reg. No. HZ-9223 175 Progress Drive Waynesburg, PA 15370 -10- UV-tSU4 ?: I.:VIVIIVIVIVVVtHL?h Vr 1-'CIVIVJTLVHIVIt'? Part 2 / DEPARTMENT OF CORRECTIONS P.O. BOX 598 CAMP HILL, PA 17001 OFFICIA4 INMATE GRIEVANCE 1275934 INITIAL REVIEW RESPONSE GRIEVANCE NO. TO: (Inmate Name & DC No.) FACILITY HOUSING LOCATION GREIVANCE DATE Reginald Byrd HZ9223 SCI-Camp Hill A-B-17 16/3/09 The following is a summary of my findings regarding your grievance: In your grievance, you allege you are being retaliated against because you fled a lawsuit against the Department of Corrections in 2003. You claim you were prevented from going to the law library because of this. I have investigated your allegations. When inmates are received on R-Block, they are not able to go to the law library because they are only on the block for approximately one week. When you were received on A-Block, you submitted a request slip to the law library to be added to the list, which was confirmed by Ms. Zhong, the Librarian. You started to attend law library on May 20, 2009.. On June 1, 2009, you put in another request to the law library to attend on multiple days, which was approved on June 3, 2009. According to Ms. Zhong, the law library list is generated once a week. The time of your request correlates with the time you were granted access to the law library. This institution is not responsible for making sure you are meeting your deadlines for court. According to policy, no inmate or group of inmates will be granted access to the law library over other inmates. Conceniing your retaliation allegations, no one at this institution is interested in the fact that you filed a lawsuit against the Department of Corrections or that you go by another name. Had you not brought it up in this grievance, no one would have known about it. Also, there is no documentation. available indicating that you were processed under the name "Bernard Smith" when you entered this institution. All of your records have your current commitment name listed on them. This grievance has been filed without merit. You have shown no proof that anyone is retaliating against you for filing a lawsuit in 2003 against the Department of Corrections. Again, something that no one would have known about had you not mentioned it. I consider this issue resolved. Print Name and Title of Grievance R. M. Zobitne 4, nc i s DC-ADM 804, Inmate Grievance System TURE OF GRIEVANCE OFFICER I DATE ___ ._ 1 6/12/09 J I,,! 1 r, ??- :_.. - Attachme?? a L Z15Y3q Form DC-135A INMATE'S REQUEST TO STAFF MEMBER 1. To: (Name and Title of Officer) <Vn4m 3. By: (Print Inmate Name and Number) k6&TW A4-b (6"02-b HZ- qZz 3 Inmate Signature 6. Work Assignment 8. Subject: State your request completely but brief Appftj a 1C & r - *n0e 46.1 _f 1,5 3 _r ' 6 2 0 . OJT .Z wwa d en /2 lack a r U 2. s D 9.0 Commonwealth of Pennsylvania G "W indi 8r'i S d 184A a I fa Go I . r S -to Department of Corrections INSTRUCTIONS Complete items number 1-8. If you follow instructions in preparing your request, it can be responded to more promptly and intelligently. 2. Date: ` _ r q eld6 7 4. Counselor's Name N'bler 5. Unit Manager's Name S,Ine 7. Housing Assignment Give details. ille?t ??d YW? rP?rins? /I9s. i r:CVgW.4j0 M ?.d iY1 S?Vaf?iYlE nno?.?4?s in rne? r.- %I "fa e ew-.-q 1 ewe's v'. A I To DC-14 CAR only 0 To DC-14 CAR and DC-15 IRS O Staff Member Name / Date Print Sign Revised July 2000 I N•d . Form DC-135A INMATE'S REQUEST TO STAFF MEMBER Commonwealth of Pennsylvania Department of Corrections INSTRUCTIONS Complete items number 1-8. If you follow instructions in preparing your request, it can be responded to more promptly and intelligently. 2. Date: (to 17 -26< 4. Counselor's Name` 5. Unit Manager's Na/ ' G SF 2?4j 7. Housing Assignment A 17 Give details. wyVwoys C?ry?sSiWJ stoic C b? .? s,o???r+er ha1r? r2Y, ?^ A&&A4 an X0,49 i r a? . k•"hvr"? z stlT? Yiel ?r.r- 2 ?a8 a, re?arhin,?? er ou srn?n? -ja.c. or4 1. To: (Name and Title of Officer) k4 3. By: (Print Inmate Name and Number) K -jC-a-V'*-D OY" H7, 22Z3 mf:2" - Inmate Signature 6. Work Assignment AblLe, 8. Subject: State our request completely 1but brief Lfh1- `1 l?Ii?1/fze?SG? W0- 46 Anna A U, wi-kQ -" 15 er in ? n?s, b 2 V" 7/-, - 1 op syr4i A6.4 m4v ws s4& 2 'Ye pnore4 /a 4 a , e4ffc tke, S ri1So 17.6xC Z o r /" AI BgG cv- re-v-,"em av d !?° S M st ..? / "..-- - _ ? / ... , ...L. iL. n.iulfw..,. J.'. ? L .... ,?w.,.1 S,.-?a ? .,.J?7.. .,1w?c 7//w,i I ti,?7 I (:C 1-6 I To DC-14 CAR only O To IC-14 CAR and DC-15 IRS O Staff Member Name / Date Print Sign Revised July 2000 FLED-OFFICE OF TFE PROTHONOTARY 1009 SEP -8 PM 4: 03 PENNSYLVANIA SEP 0 9 2009 • ro rae cos• n IN THIE COURT OF COMMON PLEAS OF COUNTY, VANIA CIVII. DIVISION v (Plaintiff) VS (De fendatit ) NO. 0 9. 4) 2 go C?,j ORDER OF COURT AND NOW, to-wit, this day of 0101L?_ upon consideration of the foregoing Petition, it is hereby ORDERED, ADJUDGED and DECRE)D that the petitioner be and hereby is permitted to file and pursue his/her appeal/action in the above-captioned case without payment of costs or fees. BY 7 J. ' MOO lv-? ?gSP _g 01 { fit v CW 941 05 CAM 6 SEP 0 9 2009 Q IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION REGINALD BYRD Plaintiff, -against- JOHN HORN;RR• JEFFREY DITTY, MICHAEL AZOR, sued in their individual and official capeciti,ges and REENE ZOBITNE LSZHU ZHO G, C/O TOTTEN, / SGT. TAYLOR, AGENT ARNOLD AND C/O PARUSO, sued in their individual capacities. Defendants. : s s s Case No. d9% (, 1,2 ? -C ?.?.CIVIL RIGHTS VIOLATION JUDGE TRIAL DEMANDED WRIT OF SUMMONS TO .l„!.? Abt-Aj G,r r` ?n l ±P O/Hy> mic4'14e? ICS?o? • ?e` ?/c. ?ab,bNe- L. i'z A u :Z l?oiv9 l o Tv etc ?v, Sy'. T ? yla r ,q ye,vt a fwoI ( , e/o PI-) ? L( So ??,,??d rn { Curr c idws s. ?? Cps. p J?:tc P.0. (3e,E a? Cwn`p IJ?Ae ,P.. ,-70C.r You are hereby notified that Reginald Byrd has commenced an action against you. Date ? , By v Sheriffs Office of Cumberland County r I-a nY R Thomas Kline Sheriff ??utn ot?sc?u??rl Ronny R Anderson ``'4ft ^; 1 Y # , Chief Deputy Jody S Smith r Civil Process Sergeant Fr ` -r 7l4E Er=`? i Edward L Schorpp Solicitor Reginald Byrd vs. John Horner Case Number 2009-6128 SHERIFF'S RETURN OF SERVICE 09/11/2009 02:04 PM - Ron Hoover, Deputy Sheriff, who being duly sworn according to law, states that on September 11, 2009 at 1404 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: John Horner, by making known unto Robert Volciak, adult in charge at 55 Utley Drive Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to him personally the said true and correct copy of the same. 09/11/2009 02:04 PM - Ron Hoover, Deputy Sheriff, who being duly sworn according to law, states that on September 11, 2009 at 1404 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Jeffrey Ditty, by making known unto Robert Volciak, adult in charge at 55 Utley Drive Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to him personally the said true and correct copy of the same. 09/11/2009 02:04 PM - Ron Hoover, Deputy Sheriff, who being duly sworn according to law, states that on September 11, 2009 at 1404 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Michael Kazor, by making known unto Stacey Sentz, Administrative Officer at 55 Utley Drive Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to her personally the said true and correct copy of the same. 09/11/2009 02:04 PM - Ron Hoover, Deputy Sheriff, who being duly sworn according to law, states that on September 11, 2009 at 1404 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Renee Zobitne, by making known unto Robert Volciak, adult in charge at 55 Utley Drive Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to him personally the said true and correct copy of the same. 09/11/2009 02:04 PM - Ron Hoover, Deputy Sheriff, who being duly sworn according to law, states that on September 11, 2009 at 1404 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: Lizhu Zhong, by making known unto Robert Volciak, adult in charge at 55 Utley Drive Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to him personally the said true and correct copy of the same. 09/11/2009 02:04 PM - Ron Hoover, Deputy Sheriff, who being duly sworn according to law, states that on September 11, 2009 at 1404 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: John Horner, by making known unto Robert Volciak, adult in charge at 55 Utley Drive Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to him personally the said true and correct copy of the same. 09/11/2009 R. Thomas Kline, Sheriff, who being duly sworn according to law, states that he made a diligent search and inquiry for the within named defendant to wit: Sgt. Taylor, but was unable to locate him in his bailiwick. He therefore returns the within Writ of Summons as not found as to the defendant Sgt. Taylor. The Pennsylvania Department of Corrections refused to accept service stating there are multiple Sgt. Taylor's employed through their office. 09/11/2009 R. Thomas Kline, Sheriff, who being duly sworn according to law, states that he made a diligent search and inquiry for the within named defendant to wit: Agent Arnold, but was unable to locate him in his bailiwick. He therefore returns the within Writ of Summons as not found as to the defendant Agent Arnold. The Pennsylvania Department of Corrections refused to accept service stating there is no one by the name of Agent Arnold working for their office. .09/11/2D09 02:04 PM - Ron Hoover, Deputy Sheriff, who being duly sworn according to law, states that on September 11, 2009 at 1404 hours, he served a true copy of the within Writ of Summons, upon the within named defendant, to wit: c/o Pariso, by making known unto Robert Volciak, adult in charge at 55 Utley Drive Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to him personally the said true and correct copy of the same. SO ANS E , ?. September 14, 2009 R THOMAS KLINE, SHERIFF By 6'z/e-l Deputy Sheriff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REINALD BYRD Plaintiff, Docket No. 09-6128 V. JOHN HORNER, et al. Defendants DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT The Defendants Horner, Ditty, Kazor, Zobitne, Zhong, Totton, Arnold, and Pariso, by and through their attorney, Maria G. Macus-Bryan, Assistant Counsel for the Department of Corrections ("Department"), in accordance with Pa.R.C.P. 1028(a), raise the following Preliminary Objections to the Complaint filed by Plaintiff, Reginald Byrd ("Byrd"). Factual Alletations 1. Byrd is an inmate who is presently incarcerated at the State Correctional Institution at Greene ("SCI-Greene"). 2. Byrd was incarcerated at SCI-Camp Hill at the time of the events pertaining to this matter. See Complaint, ¶ 2. 3. Byrd identifies the following Defendants: John Horner ("Horner"), SCI-Camp Hill Major of Unit Management; Jeffrey Ditty ("Ditty"), SCI-Camp Hill Deputy Superintendent for Centralized Services; Michael Kazor ("Kazor"), former SCI-Camp Hill Deputy Superintendent; Renee Zobitne, SCI-Camp Hill Unit Manager; Lizhu Zhong ("Zhong"), SCI-Camp Hill Librarian; Corrections Officers Taylor, Totton, and Pariso; and Corrections Counselor Arnold.' See Id., ¶¶ 3-9.2 4. Byrd alleges that on April 21, 2009, he entered into the custody of the Department of Corrections at SCI-Graterford, but he was subsequently transferred to SCI-Camp Hill where he allegedly "was processed as his old commitment name Bernard Smith." See Id., ¶ 11-12. 5. Byrd states that he "plead his case that Bernard Smith was not his proper name," but he "was then placed on the intake unit R-Block with the commitment name Bernard Smith." See Id., ¶¶ 13-14. 6. Eventually, on May 5, 2009, Byrd states that he was transferred to A- Block under his original commitment name of "Reginald Byrd," and on that day he submitted a law library request slip in which he stated that he had a deadline of May 15, 2009. See Id., ¶¶ 16-17. ' Byrd incorrectly refers to Arnold as "Agent Arnold." See Complaint, "Caption." 2 No appearance has been entered for "Sgt. Taylor" because service has not been effectuated on him. 2 7. Byrd alleges that Zhong received the request slip on May 8, 2009, but she did not schedule him for law library until May 20, 2009. See Id., ¶ 18. 8. Byrd alleges that Horner, Ditty, Kazor, and Zobitne "were in concert that [P]laintiff would be placed in a safety hazardous cell once transferred to A [-]Block." See Id., ¶ 19. 9. He states that he learned that his files "were still tainted with commitment information of Bernard Smith," and he sent a request slip to Kazor to explain that he was the subject of retaliation and harassment because of a "civil suit he filed in the past as Bernard Smith" against the Department. See Id., ¶¶ 22- 24. 10. But Byrd alleges that Kazor did not respond to him, so he submitted a request slip to Ditty on May 20, 2009. See Id., ¶ 25. 11. Byrd also alleges that Arnold told him that he would be a Level 3 inmate and that he would be on "parole hold at Camp Hill until parole review." Id., ¶ 29. 12. Byrd eventually submitted a grievance to which Zobitne was made the grievance officer, even though Byrd was "having problems" with her, and she also responded to a request slip that Byrd had submitted to Horner. See Id., ¶¶ 30-32, 34,36-37. 3 13. Byrd alleges that Pariso and Totton denied him access to the law library on two (2) separate occasions, and Taylor "had been denying A[-][B]lock rear, [sic] cleaning supplies." See Id., ¶¶ 33, 35, 38. 14. On June 20, 2009, Byrd alleges that he was told to pack his belongings because he was being transferred, and he was transferred to SCI- Greene, "the highest security prison" and was "now a level four (4) inmate." See Id., ¶¶ 40, 42. 15. Byrd alleges that on July 16, 2009, he learned that a "legal document he had mailed out from Camp Hill never was sent out to it's [sic] destination." See Id., ¶ 43. Statement of Claims 16. Byrd alleges that Kazor and Ditty, by failing to respond to and investigate his request slips alleging retaliation, were deliberately indifferent to him in violation of his First and Fourteenth Amendment rights. See Id., ¶ 44. 17. Byrd contends that Zhong, by "deliberate [1y] disregard[ing] [P]laintiff s emergency request for access to the law library to meet his legal deadline" retaliated against him in violation of the First and Fourteenth Amendments to the United States Constitution. See Id., ¶ 45. 4 18. Byrd alleges that because Horner allowed Zobitne to handle his complaints when she was one of the individuals with whom he had issues, Horner was deliberately indifferent to Byrd and "proximately caus[ed] the continuous harassment and violation of [P]laintiff s First and Fourteenth Amendments." See Id., ¶ 46. 19. Byrd argues that Zobitne, Taylor, Totton, and Pariso retaliated against him by subjecting him to "harassment and discriminatory treatment because of his series of complaint filing [sic]" in violation of the First and Fourteenth Amendments. See Id., ¶ 48. 20. Byrd contends that Zobitne, Horner, Kazor, and Ditty retaliated against him by having him "transferred to interfere with his grievance process and parole preparation ...." See Id., ¶ 49. 21. Byrd alleges that Arnold retaliated against him by reclassifying him from a Level 3 inmate to a Level 4 inmate because he filed a grievance. See Id., ¶ 48. 22. All Defendants are alleged to have retaliated against Byrd because he had filed a civil action against the Department in the past. See Id., ¶ 50. 5 Relief Requested 23. Byrd requests that this Court grant him a declaratory judgment, injunctive relief directing that his reclassification and transfer be reversed; and compensatory and punitive damages. See Id., "Relief Requested," pp. 7-9. PRELIMINARY OBJECTIONS-RULE 1028(a)(4) STANDARD FOR DEMURRER 24. Pennsylvania Rule of Civil Procedure No. 1028(a)(4) provides that a preliminary objection may be filed for legal insufficiency of a pleading, i.e. demurrer. 25. When ruling on a demurrer, a court may sustain the objections and dismiss the case only when such relief is clear and no doubt exists that the law will not permit a recovery. See Stone and Edwards Insurance Agency, Inc. v. Department of Insurance, 616 A.2d 1060, 1063 (Pa. Cmwlth. 1992). 26. A demurrer will not be sustained unless the face of the complaint shows that the law will not permit recovery, and any doubts should be resolved against sustaining the demurrer. Id. 27. In coming to such determination, the court must accept as true all well-pled allegations in the complaint and all inferences reasonably deduced therefrom. See Doxsey v. Commonwealth, 674 A.2d 1173, 1174 (Pa. Cmwlth. 1996). 6 PRELIMINARY OBJECTION Demurrer - Retaliation 28. Byrd alleges that he was subject to retaliation because he filed a previous civil action by, inter alia, being denied access to the law library (Zhong, Totton, Paruso), by being transferred to SCI-Greene (Zobitne, Horner, Kazor and Ditty), and by being reclassified to a Level 4 inmate (Arnold). See Id., ¶¶ 45, 47, 48, 49, 50. 29. To prevail on a claim of retaliation, "a prisoner plaintiff must demonstrate by a preponderance of the evidence he was retaliated against for exercising his constitutional rights and the retaliatory action does not advance legitimate penological goals." Yount v. Department of Corrections, 966 A.2d 1115, 1121 (Pa. 2009) (adopting test set forth in Abdul-Akbar v. Department of Corrections, 910 F.Supp. 986 (D. Del. 1995)). 30. Pursuant to the test for a retaliation claim as set forth in Abdul-Akbar, "the burden of proof is placed on the prisoner to disprove a legitimate penological justification, finding the `potential for abuse' in retaliation claims, and noting prison officers' `legitimate interest in the effective management of a detention facility.' '). Yount, 966 A.2d at 1120 (citingAbdul-Akbar, 910 F.Supp. at 1000-1). 31. To the extent that Byrd complains that Zobitne, Horner, Kazor, and Ditty retaliated against him by having him transferred to SCI-Greene (Complaint, ¶ 49) because he had previously filed a civil action against the Department as 7 "Bernard Smith" in 2003, Byrd cannot establish a cognizable retaliation claim with regard to his transfer because he has not pled facts to show that the transfer was "unrelated to a legitimate penological justification," and he does not plead facts that would rebut the presumption that the transfer was related to a legitimate penological justification. 32. Notably, Byrd attaches to his Complaint a copy of the Initial Review Response to the grievance that he filed, in which Zobitne states: "[N]o one at this institution is interested in the fact that you filed a lawsuit against the Department of Corrections or that you go by another name. Had you not brought it up in this grievance, no one would have known about it. Also, there is no documentation available indicating that you were processed under the name `Bernard Smith' when you entered [SCI-Camp Hill]. All of your records have your current commitment name listed on them." See Initial Review Response to Grievance No. 275934 attached to Complaint (emphasis added). 33. Byrd complains that he was transferred to SCI-Greene, but it is well established that an inmate has no federal constitutional right to remain at a particular prison. Montanye v. Haymes, 427 U.S. 236, 242 (1976). Corrections officials have broad discretion in transfer decisions, because "the decision where to house inmates is at the core of prison administrators' expertise." McKune v. Lile, 536 U. S. 24, 39 (2002) (citing Meachum v. Fano, 427 U. S. 215, 225 (1976)). 8 34. Likewise, to the extent that Byrd complains about the cell on A-Block in which he was placed at SCI-Camp Hill (Complaint, ¶¶ 19-21), Byrd has no constitutional right to the cell of his choice. Veney v. Wyche, 293 F.3d 726 (4th Cir. 2002); Thomas v. Holtz, 707 A.2d 569 (Pa. Cmwlth. 1998). 35. Byrd's complaint that Arnold retaliated against him by reclassifying him (Complaint, ¶ 42) do not rise to the level of a cognizable constitutional claim because an inmate has no right to be housed at any particular custodial level. Wei Chem v. Horn, 725 A.2d 226, 229 (Pa. Cmwlth. 1999) ("[R]emaining in a prison's general population is not a protected liberty interest." (citing Sandin v. Conner, 515 U.S. 472 (1995))). 36. Based on the aforementioned, all retaliation claims against Zobitne, Horner, Kazor, Arnold, and Ditty based on the decision to transfer Byrd to SCI- Greene and to reclassify him should be dismissed. PRELIMINARY OBJECTION Demurrer - Retaliation - First Amendment Right of Access to the Courts 37. To the extent that Byrd is attempting to assert a retaliation claim based upon a denial of his First Amendment right to access the courts, Byrd fails to state a cognizable claim. 9 38. An inmate has the right to access the courts to petition for redress of grievances. Lewis v. Casey, 518 U.S. 343 (1996). The Constitution provides inmates with a limited degree of legal assistance and simply requires that inmates have access to the courts in order to present their grievances. Id. at 360. 39. The Supreme Court has noted that all inmates must have a "reasonably adequate opportunity" to access the courts to "file nonfrivolous claims regarding convictions or conditions of confinement." Id. at 356-57. The Court allows prison officials to determine how to provide inmates with the ability to file these legal claims. Id. 40. To state a cognizable claim for violation of the right to access to the courts, a prisoner must allege and offer proof that he suffered an "actual injury" to court access as a result of the denial. Id. at 351. 41. To meet this burden the inmate must demonstrate, for example, "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." Id. See also Banks v. Beard, et al., 2006 U.S. Dist. LEXIS 52985, * 16 (W.D. Pa. Aug. 1, 2006) (citing Christopher v. Harbury, 536 U.S. 403 (2002)) (To plead a denial of the right of 10 access to courts, an inmate must allege that he suffered an actual injury, for example, the "the loss of a non-frivolous lawsuit."). 42. Christopher notes that "the underlying cause of action . . . is an element that must be described in the complaint, just as much as the allegations must describe the official acts frustrating the claim. Christopher, 536 U.S. at 415. The plaintiff must also "plead that she has actually lost the opportunity to litigate that which she sought to litigate in the suit." Banks, 2006 U.S. LEXIS 52985 at * 17. 43. Byrd complains that he submitted a request for law library to Zhong on May 5, 2009, in which he stated that he had a deadline on May 15, 2009, but he was not scheduled for law library until May 20, 2009. See Complaint, ¶ 18. 44. Because Byrd does not set forth any allegations regarding the underlying cause of action or any actual injury suffered as a result of not being scheduled for law library until May 20, 2009, he cannot prevail in this claim. 45. There is no independent right of access to a law library or legal assistance, and so Byrd must show that the alleged denial of legal resources hindered efforts to pursue a claim. See Penrod v. Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996) (citing Lewis, 518 U.S. at 350-352). 11 46. Nowhere in Byrd's Complaint does he describe in any manner the nonfrivolous nature of any purported pending legal action. The only averment that he makes regarding any possible pending legal action is that on July 16, 2009, he "learned from his trial judge that a legal document he had mailed out from Camp Hill never was sent out to it's [sic] destination." See Complaint, T 43. 47. Byrd offers no proof that he did indeed suffer an "actual injury" as a result of any purported denials of access to the law library by Totton and Pariso (Complaint, TT 33, 38) or as a result of the document alleging not being sent, i.e., he does not allege, for example, that the case was dismissed, and he does not set forth the the underlying cause of action of this case, in clear contravention of Christopher. 48. Having failed to make such allegations, Byrd has not shown that he suffered a cognizable constitutional claim of denial of access to the courts by Zhong, Totton, and Pariso, and all claims based on a denial of access to the courts should be dismissed. PRELIMINARY OBJECTION Demurrer - Deliberate Indifference by Horner 49. Byrd alleges that the Homer's actions in allowing Zobitne to address his complaints when she was one of the individuals about whom he was complaining constituted "deliberate indifference." See Complaint, T 46. See also Id., TT 36-3 7. 12 50. To the extent that Byrd complains that Horner assigned Zobitne to provide the initial review of his grievance, claims, including due process claims, regarding the handling of Byrd's grievance are insufficient to state a claim because inmates have no constitutionally protected right to a grievance procedure. See Hankins v. Beard, 2008 U.S. Dist. LEXIS 57987, * 20-21 (M.D. Pa. July 29, 2008) ("While prisoners do have a constitutional right to seek redress of their grievances from the government, that right is the right of access to the courts which is not compromised by the failure of prison officials to address an inmate's grievance."). See also Luckett v. Blaine, 850 A.2d 811 (Pa. Cmwlth. 2004) (The Department's grievance procedures, as found in Department Policy DC-ADM 804 (entitled "Inmate Grievance System"), do not implicate rights under the United States or Pennsylvania Constitutions). 51. Further, to establish an Eighth Amendment violation, Byrd must satisfy both an objective element of a serious deprivation of human needs and a subjective element of deliberate indifference by a prison official. Wilson v. Seiter, 501 U.S. 294, (1990). 52. "[A] prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer, 511 U.S. 825, 847 (1994). Deliberate 13 indifference is more than negligence and is often equated with recklessness. Id. at 836. 53. Deliberate indifference is a subjective standard in that the prison official must actually have known or have been aware of the excessive risk to health and safety. Beers-Capitol v. netzel, 256 F.3d 120, 125 (3d Cir. 2001). 54. This requirement of actual knowledge means that "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. 55. Byrd's allegations against Horner clearly do not rise to the level of an Eighth Amendment violation, because he makes no allegations that Horner deprived him of anything or that he was subjected to a substantial risk of harm. 56. Accordingly, the deliberate indifference claim against Horner should be dismissed. PRELIMINARY OBJECTION Demurrer-Lack of Personal Involvement 57. For Section 1983 claims, the allegations in the complaint must demonstrate that the defendant was personally involved in the conduct of which the plaintiff complains or that the defendant had actual knowledge of or acquiesced in the commission of the wrong. See Rizzo v. Goode, 423 U.S. 362 (1976); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); Hampton v. 14 Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976). Liability cannot be premised on a theory of respondeat superior. Hampton, 546 F.2d at 1082. 58. Because the language of 42 U.S.C. § 1983 requires a causal relation between the conduct of the defendant and the plaintiff's constitutional deprivation, the doctrine of respondeat superior may not be used to impose liability against a government or supervisor solely by virtue of his position. Monell v. Department of Social Services, 436 U.S. 658, 690-695 (1978). 59. Thus, to state a cause of action against a defendant in a civil rights action, a plaintiff must make some showing of personal involvement by the supervisory personnel. See Rizzo v. Goode, 423 U.S. 362 (1976). 60. The supervising official's misconduct cannot have been simply a failure to act, but the official must have played an "affirmative part" in the alleged misconduct. Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986). 61. To the extent that Byrd complains that Kazor and Ditty are liable for failing to act in response to his request slips (Complaint, ¶ 44), informing a Corrections Defendant of an alleged constitutional violation through correspondence or any communication is not enough to show that they had the necessary personal involvement. If the converse were true, then an inmate could subject defendants to potential liability in any case in which the inmate transmitted 15 correspondence to the official. Thus, several courts have held that "an allegation that an official ignored a prisoner's letter of protest and request for an investigation of allegations made therein is insufficient to hold that official liable for the alleged violations." See Greenwaldt v. Coughlin, 1995 U.S. Dist. LEXIS 5144, at * 11 (S.D.N.Y. Apr. 19, 1995) (citations omitted). 62. Byrd appears to be attempting to hold Kazor and Ditty liable by virtue of their respective positions, and case law does not support such a legal theory. 63. Byrd has produced no factual evidence showing that Kazor or Ditty participated in the alleged constitutional violations, directed the acts related thereto, or even that they acquiesced in them. WHEREFORE, Defendants Kazor and Ditty respectfully request that this Court dismiss the claims against them. PRELIMINARY OBJECTION Demurrer - SovereiLyn Immunity 64. The Commonwealth and its employees acting within the scope of their duties enjoy sovereign and official immunity and are immune from suit except where the legislature specifically provides otherwise. 1 Pa.C.S. § 2310. 65. The affirmative defense of sovereign immunity may be raised by preliminary objection in the nature of a demurrer where such defense "is apparent on the face of the pleading..." Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth. 1990). In other words, it must be apparent that the cause of action 16 does not fall within one of the statutorily defined exceptions to immunity. Id.; see also State Workman's Ins. Fund v. Caparo Real Estate Inc., 635 A.2d 705, 706 n. 2 (Pa. Cmwlth. 1993). 66. At 42 Pa.C.S. § 8522(b), the legislature specifically waived sovereign immunity in nine areas: (1) operation of any motor vehicle in the possession or control of a Commonwealth party; (2) acts of health care employees of Commonwealth agency medical facilities or institutions; (3) care, custody or control of personal property in the possession or control of Commonwealth parties; (4) dangerous condition of Commonwealth agency real estate and sidewalks; (5) dangerous condition of highways under the jurisdiction of Commonwealth agency created by potholes or sinkholes or other similar conditions created by natural elements; (6) care custody or control of animals in the possession or control of a Commonwealth party; (7) sale of liquor at Pennsylvania Liquor stores; (8) acts of a member of the Pennsylvania military forces; and (9) administration, manufacture and use of toxoid or vaccine. See Faust v. Commonwealth Dept. of Revenue, 592 A.2d 835, 840, n. 7 (1991); 42 Pa.C.S. § 8522(b). 67. To the extent that any of Byrd's claims are construed as negligence claims, none of his claims fit within the enumerated exceptions to sovereign 17 immunity. Accordingly, all negligence claims against the Defendants in their official capacities should be dismissed. PRELIMINARY OBJECTION Demurrer-Equity Claim 68. Byrd requests that this Court enter injunctive relief that would reverse his reclassification and the decision that was made to have him transferred to SCI- Greene. See Complaint, "Relief Requested," "B," p. 8. 69. "To prevail in an action for injunction, a party must establish that his right to relief is clear, that an injunction is necessary to avoid injury that cannot be compensated by damages, and that greater injury will result from refusing rather than granting the relief requested." Ingram v. Newman, 830 A.2d 10995 1102 (Pa. Cmwlth. 2003) (citing Harding v. Stickman, 823 A.2d 1110 (Pa. Cmwlth. 2003)). A court may not grant injunctive relief where an adequate remedy at law exists. Id. 70. For the reasons previously given, because Byrd cannot establish that he has a clear right to relief, he cannot establish the prerequisites to obtain equitable relief from this Court. 18 PRELIMINARY OBJECTION-Rule 1028(a)(3) Insufficient Specificity 71. Byrd alleges that on July 16, 2009, he "learned from his trial judge that a legal document he had mailed out from Camp Hill never was sent out to it's [sic] destination." See Complaint, 143. 72. Byrd does not provide the date on which he allegedly mailed the aforementioned document, the court to which it was mailed, or the docket number of the purported case for purposes of conducting a reasonable investigation of the allegation. 73. Byrd should be ordered to provide more specificity with regard to the July 16, 2009 allegation, namely, the date on which the document was mailed, the court to which it was mailed, and the docket number of the alleged case. Conclusion 74. For the foregoing reasons, Defendants respectfully request that this Court sustain their Preliminary Objections to Byrd's Complaint. 19 Respectfully submitted, Office of General Counsel, By: ?Ywavol ? Maria G. Macus-Bryan Attorney I.D. 90947 Assistant Counsel Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Email: mmacus-bry state.pa.us Date: September 30, 2009 20 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REINALD BYRD Plaintiff, : Docket No. 09-6128 V. JOHN HORNER, et al. Defendants CERTIFICATE OF SERVICE I hereby certify that I am this day forwarding a true and correct copy of the Defendants' Preliminary Objections to Plaintiff's Complaint upon the person(s) in the manner indicated below. Service by first-class mail addressed as follows: Reginald Byrd, HZ-9223 SCI-Greene 175 Progress Drive Waynesburg, PA 15370 A JA ? I-, ? Ren J. Ro rts Legal Assistant Pennsylvania Department of Corrections Office of Chief Counsel 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: September 30, 2009 PLED-OFF CE OF THE PROTFOWTAWY 2009 OCT - I PM 3: 0 l NI -r. y PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be state in full) REGINALD BYRD, Plaintiff vs. JOHN HORNER, et al. Defendants No. 09-6128 CIVIL Term State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections Identify counsel who will argue case: (a) for plaintiffs: Reginald Byrd, Pro Se SCI-Greene 175 Progress Drive, Waynesburg, PA 15370 (Name and Address) (b) for defendants: Maria G. Macus-Brvan, Esquire PA Dept, of Corrections, Office of Chief Counsel 55 Utley Drive, Camp Hill PA 17011 (Name and Address) I will notify all parties in writing within two days that this case has been listed for argument. Argument Court Date: November 25, 009 Signature Maria G. Macus-Bryan Print your name Date: September 30, 2009 Defendants Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REINALD BYRD Plaintiff, Docket No. 09-6128 V. JOHN HORNER, et al. Defendants CERTIFICATE OF SERVICE I hereby certify that I am this day forwarding a true and correct copy of the foregoing Praecipe for Listing Case for Argument upon the person(s) in the manner indicated below. Service by first-class mail addressed as follows: Reginald Byrd, HZ-9223 SCI-Greene 175 Progress Drive Waynesburg, PA 15370 ??%-- Renee J. Robert Legal Assistant Pennsylvania Department of Corrections Office of Chief Counsel 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: September 30, 2009 CA/AL pF JUT Y 2009 OCT - I PM 3: 47 CUMBL-1; Lr ?,QUNTY PRWYLVr+, IA a r IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REINALD BYRD Plaintiff, Docket No. 09-6128 V. JOHN HORNER, et, al. Defendants PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance as attorney on behalf of Defendants Defendants Horner, Ditty, Kazor, Zobitne, Zhong, Totton, Arnold, and Pariso in the above- captioned matter. Respectfully submitted, Office of General Counsel, By: .? Maria G. Macus-Brya Attorney I.D. 90947 Assistant Counsel Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Date: September 30, 2009 . , a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REINALD BYRD Plaintiff, Docket No. 09-6128 V. JOHN HORNER, et al. Defendants CERTIFICATE OF SERVICE I hereby certify that I am this day forwarding a true and correct copy of the foregoing Praecipe for Entry of Appearance upon the person(s) in the manner indicated below. Service by first-class mail addressed as follows: Reginald Byrd, HZ-9223 SCI-Greene 175 Progress Drive Waynesburg, PA 15370 Renl6e J. R erts Legal Assi ant Pennsylvania Department of Corrections Office of Chief Counsel 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: September 30, 2009 OF 4 aRohMrMr 2009 OCT -I FM 3: 07 PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION REGINALD BYRD Plaintiff, V. JOHN HORNER, et al. Defendants, PLAINTIFF'S AMENDED COMPLAINT Docket No. 09-6128 Plaintiff, REGINALD BYRD, hereby submits the following amendment to his original complaint. Factual Allegations Conspiracy 42 U.S.C. § 1985 1. All named defendants have acted in concert as, retaliation for plaintiff's past and present filing of grievances. 2. The acts of all defendants contributed to the unfair, discriminatory treatment, plaintiff was subjected too. 3. Plaintiff's parole process, because he was transfered, has been prolonged beyond his set minimum review date. 4. Plaintiff's direct appeal process is at a standstill due to, defendants not mailing his statement of matters complained of on appeal, mailed June 3, 2009. Superior Court Cam. v Byrd, No. 1429 EDA 2009. 5. The deprivation of access to a informa pauperis petition, also may have hampered plaintiff's appeal process. 6. There were numerous incidents besides the transfer, clearly discriminatory in nature, aimed at punishing plaintiff. Retaliation I 7. Defendants punitively kept plaintiff's parole file at SCI-Camp Hill, knowing his file was needed at SCI-Greene. See Exhibit A. 8. July 2009 plaintiff was scheduled to see the parole board, placing him on "parole hold" at Camp Hill, but was transfered June 23, 2009, See Exhibit B. 9. Because plaintiff was placed on parole hold, defendants injured plaintiff, as, he still hasn't had his minimum parole review. 10. Plaintiff was transfered two (2) weeks after he filed a grievance about being subjected to retaliation. 11. Also, plaintiff has been deprived of witnesses who could verify the harassment he underwent. 12. Defendants admit they are not responsible for assisting inmates in meeting legal deadlines. 13. A. Award compensatory damages jointly and severally against: 1. All defendants named in the original Complaint. Respectfully submitted, REGLD BYR IN propria persona HZ-9223 SCI-Greene 175 Progress Drive Waynesburg, PA 15370 -2- CERTIFICATE OF SERVICE The undersigned hereby verifies that he did serve a true and correct copy A of the Plaintiff's Amended Complaint on this day of October 2009, by First Class Mail to the following: Maria G. Macus-Bryan Assistant Counsel Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 REGINALD BYRIX IN propria persona HZ-9223 SCI-Greene 175 Progress Drive Waynesburg, PA 15370 -3- ¦ ' r I s Form DC-135A. Commonwealth of Pennsylvania- iNMATE'S REQUEST TO STAFF1 Department of Corrections RME i E D INSTRUCTIONS Complete items number 1-8. If you follow instructions in ingyour request, it can be responded to more JUN ? 0 paring your request, it can be responded to more „ tl , and intelli entl . r (Nam 1. To: e and Title of Officer) FARO -A I ate: ul w - e, I-GRE E ? . 3. . By (Print Inmate Name nd Number). 4. Counselor's Name 5:. Unit Manager's Name Irmate s' lure 1?J'f. ' 6.. Work Assignment 7. Housing Assignment Jvv' `C, z 8. Sub'ecf: State our request com letel but briefly. Give details. fl r Ll-urt 40 we r1 ?v t?O i 12 ?c ?c Svc 1? J (Z . . 7 c i , \ w - i ??= Ova To DC-14 CAR only O I To DC-14 CAR and DCG15 IRS 11 Staff Member Name ?-I VT, c^c ?? / [date rf.o c`.Io<l Print Sign RWsed July 2000 . Form DG135A. Commonwealth of Pennsylvania E ED Department of Corrections INMATE'S REQUEST TO STAFF ME INSTRUCTIONS AUG 2 1 Omplete items number 1-8. If you follow=instructions in pq gppRa OF P 'ng your request, it can be responded to more and intelligently. tTo- me and Title of Officer) Sri-Gl F Date: I nt Inmate Name and Number). 4. Counselor's Name 5:. Unit Manager's Name Inmate Si nature 6.. Work Assignment GW-1 7. Housing Assignment . b A G73 8. Subject: State your request cotrmpletel but briefly. Give details. . c-e- a r o n C / f ou11_ 111 FOt>?`RTt btJ 1- t ue;,? ..Rp To DC-14 CAR only 0 Staff Member Name VboCtL-- Pdnt Revised July 2000 . To DC-14 CAR and DC- 15 IRS 0 [date PSI 2t Sign i bnoes-SneaK Shoes-Work Towel Su -Slippers Socks Tweezers Washcloth Tea Tuna Legal Material Lock Sweat Belt TOBACCO Beef Stew Loose-Leaf Sweat Pants ITEMS Chili w/Beans Binder Sweat Shirt ITEMS NO. METH. Mackerel Magazines Sweat Suit Ash Tray Salmon Neck Chain Sweaters Ci . Papers Sardines Needles Trousers Ci . Roller Notebook T-Shirt Ci . Carton Pencils Undershirt Ci . Pack Pencil Shr . Under shorts *4 17- Cigars Pens Underwear Bot. % Lighters Photo Album Underwear To Matches Photo ra hs Pie Playing Cards Pipe Cleaners Posters Pipe Filters Reli ious Books Tob.-Chew ReI i ious Mat. Tob. Ci . Religious Medal Tob.-Pie Rug Tob.-Pouch Ruler Tob.-Snuff Soon Tablet Paper Tub T in Pa er Writing Paper ITEM DESCRIPTION OR SERIAL NO. NO. METH. OPERATIONAL Personal Mail V-4 I X, COMMENTS YES NO Calculator Footlocker Guitar Guitar Case Guitar Strings Keyboard -7-2 T.V. T.V. Antenna Typewriter Typewriter Case Watch MAIL TO Articles marked "S" mailed (signature and title) Date Mailed The RroPerty'de bov was inventoried and processed as Indic ted T p erty above was receive rand proce /ed ?a n re'S Property Officer Sig ture of Inmate Facility Dat C:i turero'f Property Officer Signature ofrln? ate Facility Date All property is/was present and accounted for. No Property was missing and/or damaged. Property exceeding the allowable property limit has been addressed per the applicable policy. Excess property in the form of legal property (active cases only) is in accordance with Department policy 6.3.1, Section 20. The inmate has been informed that allowable property must be contained in the containers permitted by the applicable policy. Inmate'sionature above acknowledaess acriamnv WHITE- DC-15 AFTER ALL PROCESSING COMPLETED PINK - SENDING FACILITY COPY OR MAIL ROOM IS APPLICABLE CANARY - INMATE COPY AFTER ALL PROCESSING COMPLETED GOLDENROD - INMATE COPY WHEN ITEMS ARE INVENTORIED P- an pe nsyl a11ia- BOARD OF PROBATION AND PAROLE Ca#e: May 4, 2009 From: Parole Offices Subject: Home plan paperwork To:? You are on the JULY Parole docket. Attached please find home plan and job plan forms that we would like you to send to a family member or friend who is willing to offer you a home if you are granted Parole. Mahe sure they return the forms to you and then you send them to the Parole Office. 1 yyou have already done this, please disregard. We've also attached the Offender Version form. Write your version of your current offense and send it to the Parole Office, Write your version.... when, where and who you were with. It should simply state your version of what happened and nothing more. Keep it SIMPLE AND TO THE POINT! Also attached are forms regarding the Crime Victim's Compensation Payment, which you will be required to pay before you are paroled. Please, do not write us multiple request slips asking when you will see the Parole Board... etc. If you got this memo, you are on our list and will be seen. as soon as possible. The more request slips we have to answer, the less time we will have to worm on your case. Thank you for your patience. *MAKE SUITE YOUR INMATE # APPEARS ON ALL PAPERWORK! Pennsylvania Board of Probation and Parole I SCI-Camp Hill P,D. Box 8837 Camp Hill, PA 17001-8837 1 717.737.4531 1 www.pbpp.state.pa.us L 7? ,{ tG c' U i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINALD BYRD Plaintiff, V. JOHN HORNER, et al. Defendants Docket No. 09-6128 MOTION TO STRIKE PLAINTIFF'S DOCUMENT TITLED "AMENDED COMPLAINT" The Defendants Horner, Ditty, Kazor, Zobitne, Zhong, Totton, Arnold, and Pariso, by and through their attorney, Maria G. Macus-Bryan, Assistant Counsel for the Department of Corrections ("Department"), hereby move to strike the document filed by Plaintiff, Reginald Byrd ("Byrd"), titled "Amended Complaint." 1. Byrd is an inmate who is presently incarcerated at the State Correctional Institution at Greene ("SCI-Greene") 2. Byrd was incarcerated at SCI-Camp Hill at the time of the events pertaining to this matter. See Complaint, ¶ 2. 3. Byrd identifies the following Defendants in the Complaint: John Horner ("Horner"), SCI-Camp Hill Major of Unit Management; Jeffrey Ditty ("Ditty"), SCI-Camp Hill Deputy Superintendent for Centralized Services; Michael Kazor ("Kazor"), former SCI-Camp Hill Deputy Superintendent; Renee Zobitne, SCI-Camp Hill Unit Manager; Lizhu Zhong ("Zhong"), SCI-Camp Hill Librarian; Corrections Officers Taylor, Totton, and Pariso; and Corrections Counselor Arnold.' See Id., ¶¶ 3-9.2 4. On or about September 9, 2009, this Court granted Byrd leave to proceed in forma pauperis. 5. On October 1, 2009, Defendants filed Preliminary Objections to the Complaint, and on October 13, 2009, Defendants filed their Brief in Support of Preliminary Objections. 6. On October 22, 2009, Defendants received a document titled "Plaintiff's Amended Complaint," a copy of which is attached hereto as Exhibit «A 7. Byrd's opening paragraph of this document states that it is an "amendment to his original complaint." See Exhibit "A." 8. To the extent that this document is construed as Byrd's Amended Complaint filed in accordance with Pennsylvania Rule of Civil Procedure 1028(c)(1), this document fails to comply with the requirement of Pennsylvania Rule of Civil Procedure 1019 that the "material facts on which a cause of action ... is based shall be stated in a concise and summary form." See Pa.R.C.P. 1019(a). ' Byrd incorrectly refers to Arnold as "Agent Arnold." See Complaint, "Caption." 2 No appearance has been entered for "Sgt. Taylor" because service has not been effectuated on him. 2 9. The purported "Amended Complaint" is not, as a matter of law, an amended complaint, but only an attempt to add something piecemeal to the previously filed Complaint. 10. Furthermore, the document is not verified in accordance with Pennsylvania Rule of Civil Procedure 1024. See Pa.R.C.P. 1024(a). 11. Byrd is proceeding in this matter pro se, and his concurrence in the filing of this Motion was not sought by the undersigned counsel. See Cumberland County Local Rule of Court 208.3(a)(9). 12. Defendants respectfully request that this Court strike the document titled "Amended Complaint" from the docket and proceed to dispose of the Preliminary Objections. Respectfully submitted, Office of General Counsel, By: ."a" " Maria G. Macus-Brya Attorney I.D. 90947 Assistant Counsel Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Fax: (717) 975-2217 Email: mmacus-brykstate.pa.us Date: October 29, 2009 3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION REGINALD BYRD Plaintiff, Rocket No. 09-6128 V. JOHN HORNER, et al. Defendants, PLAINTIFF'S AMENDED COMPLAINT Plaintiff, REGINALD BYRD, hereby submits the following amendment to his original complaint. Factual Allegations conspiracy 42 U.S.C. § 1985 1. All named defendants have acted in concert as, retaliation for plaintiff's past and present filing of grievances. 2. The acts of all defendants contributed to the unfair, discriminatory treatment, plaintiff was subjected too. 3. Plaintiff's parole process, because he was transfered, has been prolonged beyond his set minimum review date. 4. Plaintiff's direct appeal process is at a standstill due to, defendants not mailing his statement of matters complained of on appeal, mailed June 3, 2009. Superior Court Com. V Byrd, No. 1429 EDA 2009- 5. The deprivation of access to a informs pauperis petition, also may have hampered plaintiff's appeal process. 6. There were numerous incidents besides the transfer, clearly discriminatory in nature, aimed at punishing plaintiff. Retaliation EXHIBIT A 3 7. Defendants punitively kept plaintiff's parole file at SCI-Camp Hill' See Exhibit A. knowing his file was needed at SCI-Greene. parole board, placing him S. July 2009 plaintiff was scheduled to see the p " arole hold" at Camp Hill, but was transfered June 23, 2009, See Exhibit on p B. injured 9. Because plaintiff was placed on parole hold, defendants inj plaintiff, as, he still hasn't had his minimum parole review. 10. Plaintiff was transfered two (2) weeks after he filed a grievance r about being subjected to retaliation. Also, plaintiff has been deprived of witnesses who could verify the 11 harassment he underwent. inmates in 12. Defendants admit they are not responsible for assisting meeting legal deadlines. jointly and severally against: 13. A. Award compensatory damages j 1. All defendants named in the original Complaint. Respectfully submitted, r R NALD YRD IN propria persona HZ-9223 SCI--Greene 175 Progress Drive Waynesburg, PA 15370 -2- CERTIFICATE OF SERVICE The undersigned hereby verifies that he did serve a true and correct copy of the Plaintiff's Amended complaint on this „Lj±day of October 2009, by First Class Mail to the following: Maria G. Macus-Bryan Assistant Counsel Pennsylvania Department of corrections 55 Utley Drive Camp Hill, PA 17011 REG LD D IN propria persona HZ-3223 SCI-Greene 175 Progress Drive Waynesburg, PA 15370 -3- Form 00-135A. Commonwealth of Pennsylvanian Department of Corrections tNMATE'S REQUEST TO STAFF ( E Q INSTRUCTIONS Complete items number 1w8. If you follow instructions in JUN 10 sparing your request, It can be responded to more ramnilk and Inteili enfI . PA 08AMB 01' MR, a 1. To: (Name and Title of Offioer) FARO ate: L .C-L1 W -GRE lr Z? r 3. . By: (Print inmate Name nd?mb ffz ?? 4. Counselor's Name - wr F,?c5s&y 4VAtb 5:. Unit Manager's Name renal®s aura •6.. Work Assignment ? J? •7. ; Housing Assignment 8. Sub Oct: State our r uest com : letet • but briefly. Give details. • Ei K L r . To DC-14 CAR only ? To DC-14 CAR and DCA 6 IRS ? " Staff MemberName .mate Print Slgn RWsbd July 2000. ' Form DC-135A. Commonwealth of Pennsylvania ED Department of Corrections iNMATE'S REQUEST TO STAFF M L.f INSTRUCTIONS AUG .7 • 1 Omplete items number 1-8. If you follow' instructions in PA BOAR bF P ng your request, it can be responded to mgre and Intelligently. 1. To: (Name and Title of Officer) SCI-GRE Date: `ea1 baarr ? J ? . 3- . By: (Print Inmate Nanie and Number). 4. Counselor's Name Unit Managers Name 1 I r' r a-' t? Inmate Signature 6.. Work Assignment 7. Housing Assignment 6W, 8. Sub ect: State our r uest com letel but briefly. Give details. tjS V --- T o J . t'I t LL DC-14 CAR only ? To DC-14 CAR and DC'15 IRS ? Staff Member Name Gate 2l 1 C9 Print Sign ' Revised My 2000 . . ? i } ? i __ _ __ __ ?. .-- __ __ _1 .__ _ -_ I r I _ _ _ __ ? __ __ ___ _ __ __. f I F SocKS bva .?.?,i. rT IL Sweat Belt TOBACCO Beef Stew ??t•Leta? Sweat Pants ITEMS Chili w/Beans Binder Sweat Shirt ITEMS NO. METH. Mackerel Ma azines Sweat Suit Ash Tra Salmon Neck Chain Sweaters Ci . Papers Sardines Needles Trousers CI q. Roller Notebook T-Shirt Ci . Carton Pencils Undershirt CI . Pack Pencil Shr . Under shorts !,' Cigars Pens Underwear Bot. LI hters Photo Album Underwear To Matches Photographs Pipe Playing Cards Pipe Cleaners Posters Pipe Filters Religious Books Tob.-Chew Religious Mat. Tob. CI . Religious Medal Tob: Pie Rug Tob.-Pouch Ruler Tob.-Snuff Soon Tablet Paper Tub Typing Paper WritIng Paper Personal Mafl ITEM DESC RIPTION OR SERIAL NO. 140. METH.: OPEFtATiONAL .' COMMENTS . YES NO Calculator ,. Footlocker ` Guitar Guitar Case Guitar Strings Keyboard - r ` Radio T.V. T.V. Antenna Typewriter Typewriter Case Watch MAIL TO Articles marked "S" mailed (signature and title) Date Mailed A The property/desk bov was invegtor?ield and processe as Indic ted T p b erty above was receive rand proce ed RL, / I?n$t re-6f Property Officer Sig ture of Inmate ?! p ture of Property Officer Signature of In atte Facility i Dat Facility Date All property is/was present and accounted for. No Prooerty was missing and/or damaged. Property exceeding the allowable property limit has been addressed per the applicable policy. Excess property In the form of legal property (active cases only) is In accordance with Department policy 6.3.1, Section 20. The Inmate has been Informed that allowable property must be contained in the containers permitted by the applicable policy. Inmate'signature above acknowledges accuracv. WHITE- DC-15 AFTER ALL PROCESSING COMPLETED CANARY - INMATE COPY AFTER ALL PROCESSING COMPLETED PINK - SENDING FACILITY COPY OR MAIL ROOM IS APPLICABLE GOLDENROD - INMATE COPY WHEN ITEMS ARE INVENTORIED " pennsyl?ania- W OF PROBATION AND PAROLE Date.: May 4, 2009 From: Parole Ofl:ice!??1u 1 Subject: Home plan paperwork To: ?1-17 You are on the JULY Parole docket. Attached please find home plan and job plan forms that we would like you to send to a family member or friend who is willing to offer you a home if you are granted Parole. Make sure they return the forms to you and then you send them to the Parole Office. If you have already done this, please disregard. We've also attached the Offender Version form.. Write your version of your current offense and send it to the Parole Office. Write your version-, when, where and who you were with. It should simply state your version of what happened and nothing more. Keep it SIMPLE AND TO THE POINT? Also attached are forms regarding the Crime Victim's Compensation Payment, which you will be required to pay before you are paroled. Please, do not write us multiple request slips asking when you will see the Parole Board... etc. If you got this memo, you are on our list and will be seen. as soon as possible: The more request slips we have to answer, the less time we will have to work on your case. Thank you for your patience. *MAKE SUITE YOUR INMATE # APPEARS ON ALL PAPERWORK! Pennsylvania Board of Probation and Parole I SCI-Camp Hill P.C. Box 8837 I.Camp Hill, PA 17001-8837 1717.737.4531 1 www.pbpp.state.pa.us IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REINALD BYRD Plaintiff, Docket No. 09-6128 V. JOHN HORNER, et al. Defendants CERTIFICATE OF SERVICE I hereby certify that I am this day forwarding a true and correct copy of the Motion to Strike upon the person(s) in the manner indicated below. Service by first-class mail addressed as follows: Reginald Byrd, HZ-9223 SCI-Greene 175 Progress Drive Waynesburg, PA 15370 - C_tRr? NX-0 a-, Ren "e J. R erts Legal Assistant Pennsylvania Department of Corrections Office of Chief Counsel 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: October 29, 2009 I~ILED, ;IFri "E OF THE Pin.^TH("NO?APY 2009 NOY -3 PM 12* 23 J NOV 0 41009 y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REINALD BYRD Plaintiff, Docket No. 09-6128 I V / L. V. JOHN HORNER, et al. Defendants ORDER AND NOW, this 6441. day of N 2009, upon consideration of Defendants' Motion to Strike Plaintiff's Document Titled "Amended Complaint," it is hereby ORDERED tha; the otion is • «.ag BY T URT: J. HLED--O h'ClE OF THE PPOTHnN,'OTARY 2009 NOV -5 PN 12: 59 M (25pau / / aft Val. 44? It RAC"S - payhpo F, , tj 44c-, 6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINALD BYRD Plaintiff, : Docket No. 09-6128 V. JOHN HORNER, et al. Defendants PRAECIPE TO WITHDRAW PRAECIPE TO ARGUMENT LIST FILED ON OCTOBER 1, 2009 TO THE PROTHONOTARY: Please withdraw the Defendants' Praecipe to Argument List filed on October 1, 2009. By Order of this Court dated November 5, 2009, the Preliminary Objections that were the subject of the Argument were deemed moot. Respectfully submitted, Office of General Counsel By: 9??a?,tdoNN ? Maria G. Macus-Bryan Assistant Counsel Atty. Identification No.: 90947 PA Department of Corrections 55 Utley Drive Camp Hill, PA 17011 Phone No.: (717) 731-0444 Fax No.: (717) 975-2217 Email: mmacus-bry&state pa.us Dated: November 10, 2009 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINALD BYRD Plaintiff, Docket No. 09-6128 V. JOHN HORNER, et al. Defendants CERTIFICATE OF SERVICE I hereby certify that I am this day depositing in the U.S. mail a true and correct copy of the foregoing Praecipe to Withdraw upon the person(s) in the above-captioned matter. Service by first-class mail Addressed as follows: Reginald Byrd, HZ-9223 SCI-Greene 175 Progress Drive Waynesburg, PA 15370 r 1' {`i M 09 ? /Ct Re "e J. erts Legal Assistant Pennsylvania Department of Corrections Office of Chief Counsel 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: November 10, 2009 iLt 7 Y ii 1 ('i'J ?,r 13 f. " i • 5 t; ?. ? Xz yr L TT PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be state in full) REGINALD BYRD, Plaintiff vs. JOHN HORNER, et al. Defendants No. 09-6128 CIVIL Term State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections to Amended Complaint 2. Identify counsel who will argue case: (a) for plaintiffs: Reginald Byrd, Pro Se SCI-Greene 175 Progress Drive, Waynesburg PA 15370 (Name and Address) (b) for defendants: Maria G. Macus-Bryan, Esquire PA Dept. of Corrections, Office of Chief Counsel 55 Utley Drive, Camp Hill PA 17011 (Name and Address) I will notify all parties in writing within two days that this case has been listed for argument. Argument Court Date: January 6, 2010 'I Z'1Gtt,(Ai,1/ yYlltC? ?3',1? - Signature Maria G. Macus-Bryan Print your name Date: November 10, 2009 Defendants Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINALD BYRD Plaintiff, : Docket No. 09-6128 V. JOHN HORNER, et al. Defendants CERTIFICATE OF SERVICE I hereby certify that I am this day forwarding a true and correct copy of the foregoing Praecipe for Listing Case for Argument upon the person(s) in the manner indicated below. Service by first-class mail addressed as follows: Reginald Byrd, HZ-9223 SCI-Greene 175 Progress Drive Waynesburg, PA 15370 Ren6e J. Rol?trts Legal Assistant Pennsylvania Department of Corrections Office of Chief Counsel 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: November 10, 2009 -Ir T c-. ?Y '?1i1n 'dux.,. C. q. C IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINALD BYRD Plaintiff, V. JOHN HORNER, et al. Defendants Docket No. 09-6128 DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT The Defendants Horner, Ditty, Kazor, Zobitne, Zhong, Totton, Arnold, and Pariso, by and through their attorney, Maria G. Macus-Bryan, Assistant Counsel for the Department of Corrections ("Department"), in accordance with Pa.R.C.P. 1028(a), raise the following Preliminary Objections to the Amended Complaint filed by Plaintiff, Reginald Byrd ("Byrd"). Factual Allegations 1. Byrd is an inmate who is presently incarcerated at the State Correctional Institution at Greene ("SCI-Greene"). See Amended Complaint. 2. Byrd was incarcerated at SCI-Camp Hill at the time of the events pertaining to this matter. See Complaint, ¶ 2. 3. Byrd identifies the following Defendants in his original Complaint: John Horner ("Horner"), SCI-Camp Hill Major of Unit Management; Jeffrey Ditty ("Ditty"), SCI-Camp Hill Deputy Superintendent for Centralized Services; Michael Kazor ("Kazor"), former SCI-Camp Hill Deputy Superintendent; Renee Zobitne, SCI-Camp Hill Unit Manager; Lizhu Zhong ("Zhong"), SCI-Camp Hill Librarian; Corrections Officers Taylor, Totton, and Pariso; and Corrections Counselor Arnold.' See Id., ¶¶ 3-9.2 4. Byrd alleges that the Defendants conspired against him in violation of 42 U.S.C. § 1985 for his past and present filing of grievances. See Amended Complaint, T 1. 5. He alleges that the Defendants contributed to the "unfair discriminatory treatment" to which he was allegedly subjected. See Id., ¶ 2. 6. Byrd alleges that because he was transferred, "[his] parole process ... has been prolonged beyond his set minimum review date." See Id., 13. 7. He also alleges that his appeal in the Pennsylvania Superior Court at 1429 EDA 2009 is "at a standstill due to, [sic] defendants not mailing his statement of matters complained of on appeal, mailed June 3, 2009." See Id., ¶ 4. 8. In addition, Byrd alleges that the "deprivation of access to a [sic] informa pauperis petition, also may have hampered plaintiff's appeal process." See Id.,¶5. ' Byrd incorrectly refers to Arnold as "Agent Arnold." See Complaint, "Caption." z No appearance has been entered for "Sgt. Taylor" because service has not been effectuated on him. 2 9. Byrd also alleges that Defendants retaliated against him by "punitively keep[ing] plaintiff s parole file at SCI-Camp Hill, knowing his file was needed at SCI-Greene." See Id., ¶ 7. 10. Byrd alleges that he was supposed to see the Parole Board in July 2009, but he was transferred on June 23, 2009, and Defendants thereby injured him because he still has not had his minimum parole review. See Id., ¶T 8-9. 11. Byrd alleges that the transfer occurred two (2) weeks after he had filed a grievance about retaliation. See Id., ¶ 10. 12. Last, Byrd alleges that he was "deprived of witnesses who could verify the harassment he underwent." See Id., ¶ 11. 13. Byrd requests that this Court award him compensatory and punitive damages. See Id., ¶ 13. PRELIA4INARY OBJECTIONS-RULE 1028(a)(4) Demurrer-Conspiracy 14. Pennsylvania Rule of Civil Procedure No. 1028(a)(4) provides that a preliminary objection may be filed for legal insufficiency of a pleading, i. e. demurrer. 15. When ruling on a demurrer, a court may sustain the objections and dismiss the case only when such relief is clear and no doubt exists that the law will not permit a recovery. See Stone and Edwards Insurance Agency, Inc. v. Department of Insurance, 616 A.2d 1060, 1063 (Pa. Cmwlth. 1992). 3 16. A demurrer will not be sustained unless the face of the complaint shows that the law will not permit recovery, and any doubts should be resolved against sustaining the demurrer. Id. 17. In coming to such determination, the court must accept as true all well-pled allegations in the complaint and all inferences reasonably deduced therefrom. See Doxsey v. Commonwealth, 674 A.2d 1173, 1174 (Pa. Cmwlth. 1996). 18. To establish a claim of conspiracy, the plaintiff must allege facts sufficient to show the existence of a conspiracy involving state action, and he must also allege that he suffered a deprivation of his civil rights in furtherance of the conspiracy by a party to the conspiracy. Panayotides v. Rabenold, 35 F. Supp. 2d 411, 419 (E.D. Pa. 1999), aff'd, 210 F.3d 358 (3d Cir. 2000). See also Fletcher v. Hook, 446 F.2d 14, 16 (3d Cir.1971) (" `Broad and conclusory' statements `unsupported by factual allegations' are not sufficient to support a cause of action under the Civil Rights Act."); Mass v. McClenahan, 893 F. Supp. 225, 231 (S.D. N.Y. 1995) ("Plaintiff must do more than make vague, general or conclusory accusations in order to establish the existence of a conspiracy actionable under § 1985(3)." (internal citations omitted)). 19. The pleading requirements for a civil rights action based upon a claim of conspiracy require that 4 The plaintiffs allegations must be supported by facts bearing out the existence of the conspiracy and indicating its broad objectives and the role each defendant allegedly played in carrying out those objectives. Bare conclusory allegations of. "conspiracy" or "concerted action" will not suffice to allege a conspiracy. The plaintiff must expressly allege an agreement or make averments of communication, consultation, cooperation, or command from which such an agreement can be inferred. Flanagan v. Shively, 783 F. Supp. 922, 928 (M.D. Pa. 1992). 20. For the allegations to be deemed sufficient, the plaintiff must plead with particularity the period of the conspiracy, the object of the conspiracy, and the action taken in furtherance of the conspiracy. Panayotides, 35 F. Supp. 2d at 419. See also Armstrong v. School District of Philadelphia, et al., 597 F. Supp. 1309, 1313 (E.D. Pa. 1984) ("The essential elements of a claim under [Section] 1985(3) are (1) a conspiracy by the defendants; (2) designed to deprive plaintiff of the equal protection of the laws; (3) the commission of an overt act in furtherance of that conspiracy; (4) a resultant injury to person or property or a deprivation of any right or privilege of citizens; and (5) defendant's actions were motivated by a racial ... discriminatory animus." (internal citations omitted)). 21. Other than conclusory allegations, Byrd's general and speculative allegations of conspiracy amount to nothing more than conclusions of law and are insufficient to state a claim against the Defendants. See Flanagan, 783 F. Supp. at 928-929. 5 22. Accordingly, the conspiracy claim must be dismissed. PRELIMINARY OBJECTIONS-RULE 1028(a)(4) Demurrer - Sovereign Immunity 23. The Commonwealth and its employees acting within the scope of their duties enjoy sovereign and official immunity and are immune from suit except where the legislature specifically provides otherwise. 1 Pa.C.S. § 2310. 24. The affirmative defense of sovereign immunity may be raised by preliminary objection in the nature of a demurrer where such defense "is apparent on the face of the pleading..." Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth. 1990). In other words, it must be apparent that the cause of action does not fall within one of the statutorily defined exceptions to immunity. Id.; see also State Workman's Ins. Fund v. Caparo Real Estate Inc., 635 A.2d 705, 706 n. 2 (Pa. Cmwlth. 1993). 25. At 42 Pa.C.S. § 8522(b), the legislature specifically waived sovereign immunity for negligence claims in nine areas: (1) operation of any motor vehicle in the possession or control of a Commonwealth party; (2) acts of health care employees of Commonwealth agency medical facilities or institutions; (3) care, custody or control of personal property in the possession or control of Commonwealth parties; (4) dangerous condition of Commonwealth agency real estate and sidewalks; (5) dangerous condition of highways under the jurisdiction of Commonwealth agency created by potholes or sinkholes or other similar 6 conditions created by natural elements; (6) care custody or control of animals in the possession or control of a Commonwealth party; (7) sale of liquor at Pennsylvania Liquor stores; (8) acts of a member of the Pennsylvania military forces; and (9) administration, manufacture and use of toxoid or vaccine. See Faust v. Commonwealth Dept. of Revenue, 592 A.2d 835, 840, n. 7 (1991); 42 Pa.C.S. § 8522(b). 26. To the extent that any of Byrd's claims are construed as negligence claims, none of his claims fit within the enumerated exceptions to sovereign immunity. 27. Accordingly, all negligence claims against the Defendants in their official capacities should be dismissed. 28. To the extent that Byrd's claim that Defendants "punitively kept plaintiffs parole file at SCI-Camp Hill, knowing his file was needed at SCI- Greene" (Amended Complaint, ¶ 7) is construed as an intentional tort claim, such a claim is barred by sovereign immunity because it is an intentional tort alleged to have been committed within the scope of the Defendants' employment. See LaFrankie v. Miklich, 618 A.2d 11455 1149 (Pa. Cmwlth. 1992) ("[W]hen an employee of a Commonwealth agency was acting within the scope of his or her duties, the Commonwealth employee is protected by sovereign immunity from the imposition of liability for intentional tort claims." (citing Yakowicz v. McDermott, 7 548 A.2d 1330 (Pa. Cmwlth. 1988))). See also Holt v. Northwest Pa. Training Partnership Consortium, Inc., 694 A.2d 1134, 1140 (Pa. Cmwlth. 1997) ("Unlike for local agency employees, willful misconduct does not vitiate a Commonwealth employee's immunity because sovereign immunity protects a Commonwealth employee acting within the scope of his or her employment from liability, even for intentional acts ... ").3 29. Accordingly, all intentional torts claims against the Defendants in their official capacities should be dismissed. PRELIMINARY OBJECTION Demurrer - Fourteenth Amendment Equal Protection of the Law 30. Byrd alleges that he was subjected to discriminatory treatment. See Amended Complaint, ¶ 2. 31. To the extent that Byrd is attempting to state a claim based upon a violation of the Equal Protection Clause of the Fourteenth Amendment, he fails in this attempt. 32. The Equal Protection Clause of the Fourteenth Amendment "requires that all persons similarly situated should be treated alike." Iseley v. Beard, 841 3 Even if a Byrd alleges that the employees acted outside the scope of employment, if allegations center around their duties and powers as employees, sovereign immunity is still a bar. See, e.g., LaFrankie, 618 A.2d 1148 (despite allegations he acted outside his employment, trooper remained employee acting within course and scope of employment because his duties involved investigating, arresting and prosecuting cases). 8 A.2d 168, 173 n. 10 (Pa. Cmwlth. 2004). When an action is brought under the Equal Protection Clause, the plaintiff must show "intentional discrimination against her because of her membership in a particular class, not merely that she was treated unfairly as an individual." Handley v. Phillips, 715 F. Supp. 657, 673 (M.D. Pa. 1989) (citing Huebschen v. Department of Health, 716 F.2d 1167, 1171 (7th Cir. 1983)). See also Personnel Administrator v. Feeney, 442 U.S. 256, 279 (1979) ("The decisionmaker [must have] selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group."). 33. Byrd does not make any allegations that he is a member of a protected class for purposes of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and accordingly, he has not stated a cognizable constitutional claim. PRELIMINARY OBJECTION Demurrer-Lack of Personal Involvement 34. To the extent that the Amended Complaint is construed as containing a claim under the Civil Rights Statute, 42 U.S.C. § 1983, Byrd must allege a violation of rights secured by the United States Constitution and the laws of the United States, and they must show that the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 9 35. For Section 1983 claims, the allegations in the complaint must demonstrate that the defendant was personally involved in the conduct of which the plaintiff complains or that the defendant had actual knowledge of or acquiesced in the commission of the wrong. See Rizzo v. Goode, 423 U.S. 362 (1976); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); Hampton v. Holmesburg Prison OJ7cials, 546 F.2d 1077, 1082 (3d Cir. 1976). Liability cannot be premised on a theory of respondeat ,superior. Hampton, 546 F.2d at 1082. 36. In addition, the defendant must "have played an active role" in the alleged violation. Sutton v. Rasheed, 323 F.3d 236, 250 (3d Cir. 2003). Personal involvement can be shown through allegations of personal direction or actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence must be made with appropriate particularity. Rode, 845 F.2d at 1207. 37. Pro se litigants who choose to litigate in state court must adhere to Pennsylvania's "fact-pleading system of jurisprudence." Cimaszewski v. Board of Probation and Parole, 868 A.2d 416,422 (Pa. 2005). 38. Byrd does not set forth any specific allegations with any particularity with regard to Defendants Horner, Ditty, Kazor, Zobitne, Zhong, Totton, Arnold, and Pariso. See Amended Complaint, generally. 39. Therefore, to the extent that Byrd's claims are construed as being brought under 42 U.S.C. § 1983, those claims should be dismissed for Byrd's 10 failure to establish personal involvement in any alleged constitutional violations on the parts of the named Defendants. Conclusion For the foregoing reasons, Defendants respectfully request that this Court sustain their Preliminary Objections to Byrd's Amended Complaint. Respectfully submitted, Office of General Counsel, By:?. y Maria G. Macus-Brydh Attorney I.D. 90947 Assistant Counsel Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 Telephone: (717) 731-0444 Fax: (717) 975-2217 Email: mmacus-brygstate.pa.us Date: November 10, 2009 11 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINALD BYRD Plaintiff, : Docket No. 09-6128 V. JOHN HORNER, et al. Defendants CERTIFICATE OF SERVICE I hereby certify that I am this day forwarding a true and correct copy of the Defendants' Preliminary Objections to Plaintiffs Amended Complaint upon the person(s) in the manner indicated below. Service by first-class mail addressed as follows: Reginald Byrd, HZ-9223 SCI-Greene 175 Progress Drive Waynesburg, PA 15370 Renee J. Rob?ts Legal Assistant Pennsylvania Department of Corrections Office of Chief Counsel 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: November 1 0, 2009 4 f' n? Tfw r 1 , 2?J i'uV C i .? t"i1?Y L•' t,' 4 i ,`~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA REGINALD BYRD Plaintiff, V. JOHN HORNER, et al. Defendants. Docket No. 09-6128 CIVIL ACTION RESPONSE TO DEFENDANTS NEW MATTER c7 -v C ° ,"; ~ ~ b .:~ ' T <`~ >r ,~i~ -'v -o rn . r ~y _D '~. d .. ~-. : ,~;:. C..7 -,~ REGINALD BYRD Reg. No. HZ-9223 SCI-GREENE 175 PROGRESS DRIVE Sti~AYNESBURG, PENN:'~YLVANIA (15370) ~. • ~' ~, • ;. ~ _ - .. ~,. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA REGINALD BYRD Plaintiff, Docket No. 09-6128 V. JOHN HORNER, et al. Defendants. CIVIL ACTION RESPONSE TO DEFENDANTS NEW MATTER COMES NOW, REGINALD BYRD, in propria persona, and respectfully submits his Response to Defendant's New Matter and the following are the reasons: 1. Defendants allege plaintiff failed to appeal a grievance appeal response, and didn't exhaust his remedies. See Defendant's New Matter pp. 68-69. 2. Plaintiff never received such response to his grievance appeal and, for the first time is now learning of such response. No mention was made by Plaintiff of a response as the alleged response didn't exist when this complaint was filed. 3. Plaintiff did not claim he submitted his grievance appeal June 19, 2009, defendants misinterpret plaintiff's allegation. On the morning plaintiff was directed to pack his belongings is also, the same day he put his home plan and grievance apeal in the request box. 4. There is no proof that the alleged response was delivered too plaintiff at SCI-Camp Hill or, at SCI-Greene. Plaintiff was transferred 4:30 A.M. June 23, 2009 and he received no mail on June 22, 2009. 5. As to those matter plaintiff has bee made aware of at SCI-Greene, he needed not to have filed a grievance. See Defendants New Matter pp. 66-64. 6. Plaintiff's allegation of retaliation reaches and encompasses all acts complained of in the complaint being end result. To require plaintiff to file separate grievances concerning these incidents would be to disregard the harassment of his retaliation claim. 7. The incidents which occurred were the cantinuation of a ongoing pattern of conduct designed to harass plaintiff. The past civil suit filed by plaintiff against the D.O.C. was the motivating factor which brought about the succeeding events. 8. Defendants claim that they were justified in their actions fail, given once plaintiff was scheduled for a parole review, his right to such a review was guaranteed. Defendants under no circumstances would be justified in denying or interfering with plaintiff's parole review. 9. Once plaintiff was placed on "parole hold" status, according to policy he was not to be transferred, until after his parole board review. This created a liberty interest in not being transferred until the conditions of his parole review were completed. 10. Whether the interference by defendants of plaintiff's parole process consequently caused him in essence, to serve an illegal sentence. Defendants in their New Matter paragraph 95 aver plaintiff never filed a parole application, ;however, this is -2- the responsibility of the D.O.C.. lI. Plaintiff was sentenced to, two to four years his minimum sentence expiring April 22, 2009, review occurring November 25, 2009. Thus plaintiff being scheduled to see the parole board July 2009 was six months past his minimum review unconstitutionally. 12. The claim that plaintiff's parole file was in administrative hold is also misleading, the attached exhibit shows Camp Hill still had the files. Moreover, all the necessary information was already compiled as, a prisoner is not put on the parole docket until his file is complete. See exhibits attached to amended complaint. 13. It is a fact plaintiff's parole file wasn't received by the receiving institution promptly, the file was received October 2009. This happened as, a result of plaintiff's attempt to amend his complaint in October 2009, disclosing defendants were retaining his parole file. 14. Defendants sending an incomplete parole file allegedly awaiting certain information, contradict placing plaintiff on the parole docket. It took four months from the time of transfer for the information to reach plaintiff's file, this also proves the transfer was premature. 15. The classification system used by defendants determines a prisoner custody level according to their behavior adjustment. If an inmate adjust poorly they will be placed in higher security type housing, and less restrictive housing if proper behavior is maintained. 16. Plaintiff received no write-ups or misconduct reports and - 3- at all times maintained proper behavior. No reason existed or lawfully came about which would be justifiable in defendants arbitrarily changing plaintiff's custody level. 17. Defendant Arnold could neither be within the scope of his authority as, the classification process is handled by parole agents. It is averred in paragraph 28 New Matter defendant Arnold is a corrections counselor, parole board has its' own representatives. 18. The continuous denial by defendants of processing plaintiff as Bernard Smith evidences the unlawfulness of this act. No justifiable reasons clearly support this act and, none of the defendants could thereby be, acting within one scope of their duty. 19. Plaintiff in mostly all his communications to the defendants explained he was being subjected to harassment and retaliation. Defendant Horner had been made aware, defendant Zobitne was one of the participating parties allowing the harassment and retaliation to go unchecked. 20. Finally, majority of the defendants denials are based on misleading information and averrment, besides being elaborations of their previous denials. Presumptively nothing more than just a traverse of the facts set forth in plaintiff's amended complaint, do not constitute a New Matter. -4- WHEREFORE, for the foregoing reasons, it is respectfully requested the court deny defendants New Matter in its entirely. Dated: June Z-3 , 2010 Reginald yrd Beg. No. HZ-9223 SCI Greene 175 Progress Drive Waynesburg, PA 15370 -5- IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA REGINALD BYRD Plaintiff, Docket No. 09-6128 Y. JOHN HORNER, et al. Defendants. CIVIL ACTION CERTIFICATE OF SERVICE I, REGINALD BYRD, hereby certify that I am this day serving the foregoing document Plaintiff's Response to Defendants New Matter by First Class Mail deposited in the U.S. Postal Mailbox addressed to: Maria G. Macus-Bryan Assistant Counsel PA. Department of Corrections 55 Utley Drive Camp Hill, PA 17011 Dated, cX ~~~yd _ r RE INALD BY 13 c-v/ Reg. No. HZ-9223 SCI-GREENE 175 PROGRESS DRIVE WAYNESBURG, PA 15370 -6- JUG ~ 3 2010 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGINALD BYRD Plaintiff, v. JOHN HORNER, et al. Defendants Docket No. 09-6128 PROPOSED ORDER 3 NOW, this rte` day of July 2010, upon consideration of the Defendants' Motion to Strike the Plaints "Response to Defendants ' New Matter, " it is hereby ORDERED that the Motion is granted and the "Response to Defendants' New Matter" is STRICKEN. v' ~'O1'' ~ wf Cdr"- -~ `~'~" /o/ate ~`~'~ ~ ~,~. s. y.~1,i ri~o .,,~ M~ ^^ /°~~v- ~~,,~., ~,,,;~~.: SAS ola,y,r BY THE COURT: .q~b~ J. '~-'~lar,c~ /1'(aC'us /3ryah ~ ~f'- ~ ~ jr' `'a ~°r ~ y rd cn ~ : - ; .~, -=~' ~ -gym ~ ~. , ~- David 1). Buelr Prothonotary Office Of the (YOtROndtdiy Cum6erfancf County, 1n- ennsylvania xirkS. Sohonage, ESQ Solicitor 09 ` CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 28TH DAY OF OCTOBER, 2014, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE —THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R.C.P.230.2. BY THE COURT, DAVID D. BUELL PROTHONOTARY One Courthouse Square 0 Suite100 ® Cartisfe, TA ® (Phone 71.7 240-6195 0 Taff 71 7 240-6573