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Home My WebLink About02-4363 -2 d. iv;L ONE -iT/- F~Ts og ThL P~_ C.S. ~lat, SoN, sos, p,o, BoX Zoo (2A,V~.~ tk[/ ,¢:,~ ! '70ol '0 ZOO Zoo COMMONWEALTH OF PENNSYLVANIA Department of Corrections State Correctional Institution at Rockview (814) 355-4874 May 10, 2002 SUBJECT: Property Concerns TO: FROM: Keith Gant, DD-8972 SCI-Camp Hill Jeffrey A. Rackovan Superintendent Assistant As you are now at Camp Hill, so are your records, which makes it very difficult to even look into this matter. If you send me copies of the property inventory sheet, misconduct, and confiscated items receipt (if you have one), along with an explanation of what you think is missing, I'll investigate and give you a report of my findings. JAR:tlk C: File COMMONWEALTH OF PENNSYLVANIA Department of Corrections State Correctional Institution at Rockview (814) 355-4874 June 28, 2002 SUBJECT: Property Concerns TO: FROM: Keith Gant, DD-8972 SCI-Camp Hill Superintendent Assistant After receiving the requested records from you, I investigated this matter. You did receive a misconduct in September 2000 for excessive commissary. The appropriate Confiscated Items Receipts were issued. At your hearing the Hearing Examiner advised you could keep only $45 worth of the confiscated items. The remainder would be destroyed as contraband. Reports from Lt. Vance, Sgt. McGill at the Property Office, and the Hearing Clerk indicate you took no further action at that point. You had several options. You could have sent a request to Lt. Vance or Property asking to select those items you wished to keep. You could have flied an appeal on the misconduct sanction. Instead you did nothing and contacted no one regarding how you were to choose the allowable $45 worth of commissary. The confiscated items were stored in the P¢operty Office awaiting some notification regarding their disposition. When the time in which to file a misconduct appeal had passed, the items should have been destroyed. However, they continued to be stored until April 2001, at which time a general housecleaning was done and, as no notification had ever been received on the items, they were finally destroyed. No reimbursement is due to you. The responsibility was yours to notify staff of your intentions regarding selection of the allowable $45 worth of items. As you never took the initiative to inquire about the items from September 2000 through April 2001, the items were appropriately destroyed. JAR:tlk C: File IN THE COMMONWEALTH COURT OF PENNSYLVANIA KEITH GANT, Petitioner JEFFREY A. BEARD et al., Respondents No. 505 M.D. 2002 PER CURIAM ORDER NOW, July 25, 2002, upon consideration of petitioner's pro se complaint, and it appearing that petitioner seeks money damages from respondents for an alleged violation of petitioner's constitutional rights, and it further appearing that this court lacks jurisdiction over tort actions for money damages whether based on common law trespass or 42 U.S.C. §1983 because such actions are in the nature of trespass in that they seek money damages as redress for an unlawful injury and are properly commenced in the court of common pleas, see Fawber v. Coheq, 516 Pa. 353, 532 A.2d 429 (1987); Balshy v. Rank, 507 Pa. 384, 490 A.2d 4:15 (1985), thls matter is transferred to the Court of Common Pleas of Cumberland County. The Chief Clerk shall certify a photocopy of the docket entries of the above matter and the record to the prothonotary of the Court of Common Pleas of Cumberland County. Certified from the Record JUL 2 6 2002 and Order Exit 8:00 A.M. Miscellaneous Docket Sheet 505 MD 2002 Docket Number: Page 1 of 4 August 22, 2002 Commonwealth Court of Pennsylvania Keith Gant, Petitioner Jeffrey A. Beard/Secretary of Correction for Pennsylvania, Respondent Initiating Document: Petition for Review Case Status: Closed July 25, 2002 Case Processing Status: Journal Number: Case Category: Miscellaneous Completed CaseType: Inmate Petition for Review Consolidated Docket Nos.: Related Docket Nos.: Petitioner Gant, Keith Pre Se: ProSe IFP Status: Pending Attorney: Gant, Keith Bar No.: Address: DD -8972 P.O. Box 200 Camp Hill, PA 17001-0200 Phone No.: COUNSEL INFORMATION Appoint Counsel Status: Law Firm: Fax No.: Respondent Pro Se: IFP Status: Attorney: Bar No.: Address: Receive Mail: Yes Beard, Jeffrey A. Appoint Counsel Status: Dorian, Raymond W.; Assistant Counsel 48148 Law Firm: Department of Corrections 55 Utley Drive Camp Hill, PA 17011 Phone No.: (717)731-0444 Fax No.: Csl'~ied from/he Record AUG 2 2 2002 a~ld Order Exit 8/22/2002 5001 8:00 A.M. Miscellaneous Docket Sheet 505 MD 2002 Docket Number: Page 2 of 4 August 22, 2002 Commonwealth Court of Pennsylvania Receive Mail: Yes TRIAL COURT/AGENCY INFORMATION Court Below: Department of Corrections County: Date of Order Appealed From: Date Documents Received: July 23, 2002 Order Type: Judge: Division: Judicial District: Date Notice of Appeal Filed: Lower Court Docket No.: Misconduct #382968 ORIGINAL RECORD CONTENTS Original Record Item Date of Remand of Record: Filed Date Content/Description BRIEFING SCHEDULE 8/22/2002 5001 Docket Number: Page 3 of 4 August 22, 2002 8:00 A.M. Miscellaneous Docket Sheet 505 MD 2002 Commonwealth Court of Pennsylvania DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed By July 23, 2002 Petition for Review Filed Petitioner Gant, Keith July 23, 2002 Application to Proceed In Forma Pauperis Petitioner Gant, Keith July 25, 2002 Transfer Transferred to Cumberland County Court of Common Pleas Per Curiam Upon consideration of petitioner's pro se complaint, and it appearing that petitioner seeks money damages from respondents for an alleged violation of petitioner's constitutional rights, and it further appearing that this court lacks jurisdiction over tort actions from money damages whether based on common law trepass or 42 U.S.C. {}1983 because such actions are in the nature of trepass in that they seek money damages as redress for an unlawful injury and are properly commenced in the court of common pleas, see Fawber v. Cohen, 516 Pa. 353, 532 A.2d 429 (1987); Balshy v. Rank, 507 Pa. 384, 490 A.2d (1985), this matter is transferred to the Court of Common Pleas of Cumberland County. The Chief Clerk shall certify a photocopy of the docket entries of the above matter and the record to the prothonotary of the Court of Common Pleas of Cumberland County. July 31,2002 Praecipe for Appearance Praecipe for Appearance Dorian, Raymond W. Respondent Beard, Jeffrey A. July 31,2002 Praecipe for Withdrawal of Appearance Praecipe for Withdrawal of Appearance Faman, Michael A. Respondent Beard, Jeffrey A. August 22, 2002 Transfer to Court of Common Preas Cumberland County Commonwealth Court Filing Office SESSION INFORMATION Journal Number: Consideration Type: Date Listed/Submitted: 8/22/2002 5001 8:00 A.M Miscellaneous Docket Sheet Docket Number: Page 4 of 4 August 22, 2002 505 MD 2OO2 Commonwealth Court of Pennsylvania Related Journal Number: Disposition Category: Disposition: DISPOSITION INFORMATION Judgment Date: Disposed Before Decision Disposition Author: Transfer Disposition Date: 7/25/2002 Per Curiam 7/25/2002 Dispositional Comments: Dispositional Filing: Filed Date: Upon consideration of petitioner's pro se complaint, and it appearing that petitioner seeks money damages from respondents for an alleged violation of petitioner's constitutional right,, and it further appearing that this court lacks jurisdiction over tort actions from money damag whether based on common law trepass or 42 U.S.C. §1983 because such actions are in the nature of trepass in that they seek money damages as redress for an unlawful injury and are properly commenced in the court of common pleas, see Fawber v. Cohen, 516 Pa. 353, 53; A.2d 429 (1987); Balshy v. Rank, 507 Pa. 384, 490 A.2d (1985), this matter is transferred to the Court of Common Pleas of Cumberland County. The Chief Clerk shall certify a photoco; of the docket entries of the above matter and the record to the prothonotary of the Court of Common Pleas of Cumberland Count~. Author: REARGUMENTIRECONSIDERATIONIREMITTAL Reargument/Reconsideration Filed Date: Reargument Disposition: Date: Record Remitted: 8/22/2002 5001 8/22/2002 No.: 1426 CD 2001 Addressed To: File Copy Recipient List Mr. Curtis R. Long Prothonotary I Courthouse Square Carlisle, PA 17013 5170 - 10/99 8/2/00 Charles R. Hostutler Deputy Prothonotary/Chief Clerk Commonwealth Court of Pennsylvania August22,2002 File Copy Room624, Sixth Floor Harrlsbum. PA17120 717-255-1650 TO: RE: Gant v. Beard, et al No.505 MD 2002 Trial Court/Agency Dkt. Number: Misconduct #382968 Trial Court/Agency Name: Department of Corrections Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Date of Remand of Record: Filed Date Description Enclosed is an additional copy of the certificate. Please acknowledge receipt by signing, dating, and returning the enclosed co · Office or the Chief Clerk's office. Commonwealth Court Filing Office Si.clnature Printed Name Date IN THE COMMONWEALTH COURT OF PENNSYLVANIA KEITH GANT, Petitioner, V. JEFFREY A. BEARD, et al., Respondents No. 505 M.D. 2002 PRAECIPE FOR WITHDRAWAL/ENTRY OF APPEARANCE TO THEPROTHONOTARY: Please withdraw my appearance as counsel on behalf of Respondents Secretary Jeffrey A. Beard, Ph.D., Superintendent Robert Meyers and Jeffrey Rackovan in the above-captioned matter. Respectfully submitted, Office of General C~unsel · By . Michael A. Faman Chief Counsel Attorney I.D. No. 69158 Dated: July 31, 2002 Please enter my appearance as counsel on behalf of Respondents Secretary Jeffrey A. Beard, Ph.D., Superintendent Robert Meyers, and Jeffrey Rackovan in the above-captioned matter. Dated: July 31, 2002 Respectfully submitted, Office of General Counsel By: //~Aaym?fi~d W. Dorian ssistant Counsel Attorney I.D. No. 48148 Pennsylvania Department of Corrections Office of Chief Counsel 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 2 IN THE COMMONWEALTH COURT OF PENNSYLVANIA KEITH GANT, : : Petitioner, : V. ; : JEFFREY A. BEARD, et al, : : Respondents No. 505 M.D. 2002 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 Respondents' Praecipe for Withdrawal/Entry of Appearance upon the person(s) and in the manner indicated below. Service by first-class mail addressed as follows: Keith Gant, DD8972 SCI-Camp Hill P.O. Box 200 Camp Hill, PA 17001-0200 ,( J~elie C. Staplet~"~ ' kd21erk Typist 2 Pennsylvania Department of Corrections Office of Chief Counsel 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: July 31, 2002 KEITH GANT, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JEFFREY A. BEARD, et al, Respondents AND NOW, this : 02-4363 CIVIL TERM ORDER OF COURT day of September, 2002, the petition to proceed in forma pauperis, IS GRANTED. Keith Gant, #DD-8972 Camp Hill State Correctional Institution P.O. Box 200 Camp Hill, PA 17001-0200 Jeffrey Beard Lisburn Road, P.O. Box 598 Camp Hill, PA 17001-0598 ~Edgar B. Bayley, J. :prs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH GANT, : : Petitioner, : V. ; JEFFREY A. BEARD, et al., : : Respondents : NOTICE TO PLEAD TO: Civil Action No. 02-4363 KEITH GANT, DD8972: You are hereby notified to file a written response to the enclosed Answer and New Matter within twenty (20) days from service hereof or default judgment may be entered against you. Respectfully submitted, As~stant Counse Attorney ID No. 48148 PA Department of Corrections 55 Utley Drive Camp Hill, PA 17011 Dated: March 25, 2003 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH GANT, ' Petitioner, ' V. JEFFREY A. BEARD, et al., ' Respondents ' Civil Action No. 02-4363 RESPONDENTS' ANSWER TO PETITION FOR REVIEW WITH NEW MATTER AND NOW, come the Respondents, Jeffrey A. Beard, Ph.D., Secretary of the Pennsylvania Department of Corrections, et al., by and through his attorney, Raymond W. Dorian, Assistant Counsel, and answer as follows: 1. This is a conclusion of law to which no response is necessary. 2. Admitted. 3. Admitted that Respondent Beard is the Secretary of the Pennsylvania Department of Corrections. The rest of this averment is denied. 4. Admitted that Respondent Meyers is the Superintendent at the State Correctional Institution at Rockview ("SCI-Rockvie~v"). The rest of this averment is denied. 5. Admitted that Respondent Rackovan is the Assistant to the Superintendent at. SCI-Rockview. Admitted that he also acts as the Grievance Coordinator. The rest of this averment is denied. 6. No response is necessary. 7. Admitted. 8. Admitted that the Petitioner was issued Misconduct No. 382968, which was for possession of any item not authorized for retention or receipt by the inmate not specifically enumerated as Class I contraband. This rest of this averment is denied. 9. Admitted that the Petitioner received a hearing on the misconduct and received a reprimand and warning. Admitted also that he was permitted to keep only $45.00 worth of the confiscated items, and that the remainder of the items' were to be destroyed. Admitted also that he received confisCation slips for the items which were seized. The rest of this averment is denied. 10. Denied. Proof thereof is demanded at time of hearing, if relevant. 11. Admitted. 12. Admitted that on June 28, 2002, Jeffrey A. Rackovan wrote to the Petitioner concerning his property concerns. That letter speaks for itself. 13. This is a conclusion of law to which no response is necessary. By way of further answer, the Petitioner has received adequate due process. 2 14. This is a conclusion of law to which no response is necessary. To the extent this averment may be deemed factual, it is denied. 15. This is a conclusion of law to which no response is necessary. To the extent that it may be deemed factual, it is admitted that the Department has an inmate grievance procedure, procedure is inadequate. entitled "DC-ADM 804." It is denied that the 16. This is a conclusion of law to which no response is necessary. By way of further answer, it is denied that the Petitioner was entitled to a hearing prior to the destruction of his personnel property. 17. This is a conclusion of law to which no response is necessary. By way of further answer, the Petitioner did receive adequate due process with respect to the confiscation and destruction of his personal property. The inmate grievance procedure constitutes an adequate post-deprivation remedy. 18. No response is necessary. 19. No response is necessary. 20. No response is necessary. 21. No response is necessary. 22. No response is necessary. WHEREFORE, the Respondents request that the Petition for Review be dismissed. 3 NEW MATTER By way of new matter, the Respondents aver as follows: 23. On September 29, 2002, the Petitioner 'was issued Misconduct No. 382968, and charged with possession of any item not authorized for retention or receipt by the inmate not specifically enumerated at Class I contraband. True and correct copies of Misconduct No. 382968 and the hearing examiner's report are attached hereto and marked Exhibit "A." 24. On October 2, 2001, a hearing was held on the misconduct and the Petitioner received a reprimand and warning. Petitioner was also advised by the Hearing Examiner that he could keep only $45.00 worth of the confiscated items. The remainder of the confiscated items was to be destroyed as contraband. See Exhibit "A." 25. The Petitioner never appealed from the decision of the Hearing Examiner. 26. The Petitioner has received all of the due process to which he is entitled. 27. The Petitioner was provided an adequate post-deprivation remedy in the form of the inmate grievance system under Department Policy DC-ADM 804. 4 28. The Petitioner utilized the inmate grievance system by filing Grievance No. 20922 on May 16, 2002 at SCI-Camp ttill. True and correct copies of Grievance No. 20922 and response are attached hereto and marked Exhibit "B." 29. On June 28, 2002, Respondent Rackovan wrote to the Petitioner concerning his property concerns. A true and correct copy of Respondent Rackovan's memo to the Petitioner is attached hereto and marked Exhibit "C." 30. The Petitioner has failed to state a cause of action. 31. The Petitioner has failed to exhaust available administrative remedies. WHEREFORE, the Respondents request that the Petition for Review be dismissed. Respectfully submitted, Office of General Counsel By: ~Raymon~/W. Dorian ' Assistagt Counsel Attorney I.D. No. 48148 Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: March 25, 2003 -'ORM DC-141 PART 1 COMMONWEALTH OF PENNSYLVANIA Rev 3,00 DEPARTMENT OF CORRECTIONS 3 8 2 9 6 8 ~'MISCONDUCT REPORT' [] OTHER [] DC-ADM 801 INFORMAL RESOLUTION ~DDC Number~..~ ~- ~/)/7 ~ Name I Insfit~n I Incident ~me 24 Hr. Base ' Incident Date I Date of Repo~~/~ ~O~ ~0 ~~ Pla~o of Incident OTHER INMATES OR STAFF INVOLVED OR WITNESSES (CHECK I OR W) DC Number ' Name I W DC Number Name ! W MISCONDUCT CH~GE OR OTHER AC~ON ~&~ ~/ ~~ STAFF MEMBER'S VERSION D YES ~ME DATE' ~ ~ REQUEST FOR W~NESSES AND REPRESE~A~ON ~ INMATE'S VERSION ~PO~ING ST~F MEMBER AC~ON ~VIEWED ~D ~PROVED BY · DA~ ~O ~ME IN~ G~N C~Y ~ATE TIME MISCONDUCT CA. GORY NO~CE TO INMATE You are =ch~ul~ ~r a being en ~e alleg~ ~ ~e date and ~ Indl~t~ ur ~ s~n ~emaffer say w~l ~ used against ~u be~ at ~e ml~adu~ healing and in a ~u~ of ~, E ~is ~er ~ m~ for ~mlnal pros~on. hea~ ~mm~e~mlner m~ use ~ur s~n~ as ~den~ agal~t ~ If ~u Indima ~at ~u ~h ~ rem~n sllen~ ~u ~1 be ~k~ no ~er quesae~. ~ ~u are ~und gui~ of a C~s t m~ndu~ a~ p~lease s~s ~u h~ will ~ mm~. WHITE -- DC-15 YELLOW ~ Inmate PINK ~ RepoSing S riI I ~ Dep~ Supe~ntendent Facili~ Management EXHiBiT DC-ADM 80~ Inmate Discipline Policy, A~achment B ~ A SCIC POP RECORDS --DC-141 PART I! B Rev. 6-1)4 - DISCIPLINARY HEAR. lNG REPORT Name Kei rh Gent .. INMATE PLEA CHARGES Fax:717-765-7155 Mar 25 2003 COM ,LTH OF PENNSYLVANIA DEPARTM; OF CORRECTIONS Hearing Date 08:17 P. 03 Time. No. from Part I NNotiRy [] No Plea Verdict Guilt Gui~/ [] Other ~ [] Not'Guilty -- ~ H[ ~RINGACTION -- ~ Class [[, ~51 Possession of ~ y 1tam not authorized for retention or receipt b~ ~he inmate, no~ enumeratec as ~ Class I misc charge VERDI~, AN~~IONS IMP SED ~1 e~ at~ . ' -- -- ~ . ' · [] NO E~YES [] NO ~'YES [] NO ~YE$ I-I NO The in.ate has heard the ~ tcision and has been told {he reason for it NAMES) OF HEARING ID(AMINER/COMMII [TYPED OR PRINTED) C. Baker and what will happen. The circ. umstances of the the inmate. The opp°rtunity to have tb record was given. The in~l. ate has been advis, review:may be submitted rea~on.~ for the review. . PINK.-~. S1 arge have been read and fully explained to SEE APPENDICES e inmate's version reported as part of th~ I-'1: rd that within 15 days a request for a formal Ind that this request must contain spe¢ifio~ earing R~eport and all appended information must be Sig~ed. Signature in- cet~port~dlces. . IGNATURE O~ HEARING EX*~#NER/GOORDINA.'FOR COORDINATOR FROMt (INMATe_ NAME &,NUM~ WORK ASSIGNMENT: COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF GORRECTION~ P.O. BOX 598 CAMP HILL, PA 17001,0598 FACILITY: HOUSING ASSIGNMENT:, FOR OFFICIAl. USE ONLY DATE: INSTRUCTIONS: 1 Refer to the DC-ADM 804 for procedures on the inmate grievance system. 2. State your grievance In Brock A In a.brief .and un. derata, nda~l.? manner. 3. Mat In Block B any actions you may nave ta~<en to resolve m~s matter. Be sure to include the Identlty of staff ma,"nbem ..)'.ou have A. Provide a bt! .ef, clear statement of your grie~noe~ Additional paper m~.~y be used, ,max;mum two pages. ........... u~'.~L~ ~, ;.~o,,,,'a,/ / u B. Liar ac~n$ taken' end. ataff you have contacted, before submitting this grievance. Your grlevan4~ has been_r.e....ce!ved. and will be processed in accordance with DC-ADM 804. Signature of Facility Grievance Coordinator ~ Date ' .H...r~._.F,,cll~Gri~.~:~lrmb~r:Copy C.,~! ~__ tetumCop,.v OOLDENROD- Inmate C, opY Ravlse'd .......... : .............. ' ~ DC-AbM ac4. trim'ate Grievance ~ystem Do-804 Part 8 Faclllb' Gdeva .rt.ce The a~aohed g~eyance Is being ~umed to you bemuse you ~va failed to eom~ ~h the · preCision(a) of D~ADM-e04, Inmate Gflevan~e 8y~em: , 1._ Gflevan~es mla~d to the fol[o~ng ~sues shall be fl~dled ac~lng to Facility G~e~ehoe b. D~ADU~OR-Admln1~mtive ~u~ody ~. offier policies not appl1~ble ~ DGADU 804 ' COMMONWEALTH 'OF PENNSYLVANIA Depe~rtmorrt o1' G:arm~'l:loll$ SCi-Camp Hill FOP, OFFICIAL USE ONLY' · GRJEV,/LNOE NUMBER , Block El must be aompletecL es per the Instruction ~ of the Official grievance The grievance does not Indicate t~at ~,ou were ~rsonally arrested ' ' ' Department or facility a~on.or p.ottc.y. ~ ~,,,,,,~/,-,-,Z~.;/- ~, eraup I~rl~vmlcee are prohl~ec~. ' ' '. · The grievance wes nat s~gned and/or dated. edavancea must be legible-end presented In, a oourteo~.manner. Tile grfevano~ exoeede~ me two (2) page limit'. Description needs to be brtef. Qrlevanaes be~ecf upon'different ewnts ~ha[l be prese~tted separately. ' The grievance was not submitted vin'tfll~ fifteerJ (1.5) working'days a~fter the events upon wfl~ ~alnlS are based. ' ' ' You are ourm~l'y undergdevanoe ma'trf~on, You may ~ot file atrLy grievances grievance I~t~lv~ matter(a) that boourred et another facll~ and should be' directed by the Inmate to the appropriate facility. The l~e(s) presented an the attaoh~ I;jrfeYartce has been reviewed and ~drasaed previously.. 7,,0'd 0£:£[ 7,,00~ Z gSTZ~"SZ2.TZ: x~_-I INH(B~[NI~Elc~S 3138 COMMONWEALTH OF PENNSYLVANIA DePartment of Corrections State Correctional Institution at Rockvlew (814) 3554874 June 28, 2002 SUBJECT: Property Concems TO: FROM: Keith Gant, DD-8972 SCl-Camp Hill Superintendent Assistant After receiving the requested records from you, I investigated this matter. You did receive a misconduct in September 2000 for excessive commissary. The appropriate Confiscated Items Receipts were issued.. At your hearing the Hearing Examiner advised you could keep only $45 worth of the confiscated items. The remainder would be destroyed as contraband. Reports from Lt. Vance, Sgt. McGill at the Property Office, and the Hearing Clerk indicate you took no further action at that point. You had several options. You could have sent a request to Lt. Vance or Property asking to select those items you wished to keep. You could have filed an appeal on the misconduct sanction. Instead you did nothing and contacted no one regarding how you were to choose the allowable $45 worth of commissary. The confiscated items were stored in the Property Office. awaiting some notification regarding.their disposition. When the time in which to file a misconduct appeal had passed, the items should have been destroyed. However, they continued to be stored until April 2001, at which time a general housecleaning was done and, as no notification had ever been received on the items, they were finally destroyed. No raimbursement is due to.you. The responsibility was yours to notify staff of your intentions regarding selection of the allowable $45 worth of items, As you never took the initiative to inquire about the items from September 2000 through April 2001, the items were appropriately destroyed. JAR:tlk C: File EXHIBIT C VERIFICATION I, Jeffrey A. Rackovcan, Assistant to the Superintendent of the State Correctional Institution at Rockview ("SCI-Rockview'), hereby verify that the allegations contained in the attached Respondents' Answer to Petition for Review with New Matter are tree and correct to the best of my' knowledge, information and belief, and that I give this verification subject to the criminal penalties relating to unswom falsification to authorities, 18 Pa.C.S.A. §4904. Date: ~//7/0 3 Jef~ovan /'~~c~c.- Assistant to the Superintendent SCI-Rockview VERIFICATION I, Robert W. Meyers, Superintendem of the State Correctional Institution at Rockview ("SCI-Rockview"), hereby verify that the allegations contained in the attached Respondents' Answer to Petition for Review with New Matter are tree and correct to the best of my knowledge, information and belief, and that I give this verification subject to the criminal penalties relating to unswom falsification to authorities, 18 Pa.C.S.A. §4904. Robert W. Meyers Superintendent SCI-Rockview IN THE COURT OF COMMON PiLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH GANT, Petitioner, V. JEFFREY A. BEARD, et al., Respondents Civil Action No. 02-4363 CERTIFICATE OF SERVICE I hereby certify that I am this day depositing in the U.S. mail a tree and correct copy of the foregoing Respondent Beard's Answer to Petition for Review with New Matter upon the person(s) in the above-captioned matter. Service by first-class mail Addressed as follows: Keith Gant, DD8972 SCI-Camp Hill P.O. Box 200 Camp Hill, PA 17001-0200 (~aiae!le C_. Stapl.eton Clerical Supervisor Pennsylvania Department of Corrections Office of Chief Counsel 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: March 25, 2003 L~T V/s/oS %'/ ~sT '2 P.o, BoX--,--- &aa C,~H,~[I ~ I')ool-ozoa PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sutmitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: pl-a-~e 1 ~nt the withit~ m~tter for the next Ar~ja~ent Co.rt. CAPTION OF CASE (entire c ~tion must be stated in ~ll) Keith Gant, Petitioner Jeffrey A. Beard, et al. Respondents (plaintiff) (Defer~ant) No. Civil 02- I~(4363 State matter to be argued (i.e., plaintiff's motion for new trial, defendant's d~mm3_r-~r to complaint, etc.): Respondents' Motion for Judgment on the Pleadings 2. Identify counsel who will argue case: (a) for plaintiff: Pro se ;u~W~ss: SCI-Camp Hill P.O. Box 200, Camp Hill, PA 17001-0200 (b) for defe~mnt: Raymond W. Dorian, Esquire ~-w~r~ss: 55 Utley Drive, Camp Hill, PA 17011 3. I ~ll notify all ~r~'~cies in ~H_ting with~ two Oa~ t~t thi~ ~e bas been l(-~ted for ar9%m~-nt. Arg~_nt Court Date: Next available date. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW KEITH GANT, Petitioner, : JEFFREY A. BEARD, et al., Respondents· : Civil Action No. 02-4363 RESPONDENTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, come the Respondents, Jeffrey A.. Beard, Ph.D., et al., by and through their attorney, Raymond W. Dorian, Assistant Counsel, and pursuant to Rule A.R.C.P. 1037, moves this Honorable Court as follows: 1. This property claim was initiated by Keith Gant ("Petitioner"), an inmate currently incarcerated at the State Correctional Institution at Camp Hill ("SCI-Camp Hill"). 2. On July 23, 2002, the Petitioner initiated this action by filing a Petition for Review with the Commonwealth Court. A true and correct copy of the Petition for Review is attached as Exhibit A. 3. On July 25, 2002, the Commonwealtih Court entered an Order transferring this matter to the Court of Common Pleas of Cumberland County, because the Commonwealth Court lacks jurisdiction over tort actions for money damages. 4. On March 26, 2003, the Respondents filed their Answer with New Matter to the Petition for Review with a Notice tO Plead, A tree and correct copy of the Answer with New Matter is attached hereto as l~xhibit B. 5. On or about April 7, 2003, the Petitioner filed a document entitled "Response to Respondents' Answer to Petition for Review." A true and correct copy of the Petitioner's Response is attached as Exhibit C. The Petitioner's Response does not specifically affirm or deny the paragraphs contained in the Respondents' New Matter. 6. The Respondents are entitled to judgment on the pleadings for the following reasons: a. By not specifically admitting or denying the well-pleaded factual averments in the Respondents' New Matter, the Petitioner has admitted to all well-pleaded factual averments contained in that New Matter. Rule 1029(b); Edmund v. Southeastern Pennsylvania Transportation Authority, 651 A.2d 645, 646 n. 4 (Pa. Cmwlth. 1994); Cercone v. Cercone, 386 A.2d 1, 4 (Pa. Super. 1978); 2 b. By receiving a heating on misconduct number 382968, the Petitioner has received all the due process to which he is entitled under the law; c. By never appealing the decision of the Hearing Examiner, who found him guilty of the misconduct, the Petitioner cannot now complain about that decision; d. The Department of Corrections has provided the Petitioner with an adequate post deprivation remedy with respect to his confiscated property in a form of Department Policy DC-ADM 804, entitled "Inmate Grievance Policy"; e. As indicated in the official response to the Petitioner's inmate grievance number 20922, the Petitioner was allowed to keep $48.00 worth of the confiscated commissary items; however, he never advised anyone which of the confiscated items he wished to keep. As a result, all the confiscated commissary items were destroyed; f. The Petitioner has failed state a cause of action; g. The Petitioner has failed to exhaust his available administrative remedies; and h. The Respondents are entitled to immunity under the Sovereign Immunity Act, 42 Pa.C.S. § 8522(a)-(b). WHEREFORE, the Respondents request that their Motion for Judgment on the Pleadings be granted and judgment be entered in favor of the Respondents and against the Petitioner. By: Respectfully submitted, Office of General Counsel /Ray~i~nd W. Dorian Assistant Counsel Attorney I.D. No. 48148 Pennsylvania Depathnent of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: September 23, 2003 4 Exhibit A of: 'F~u,~s¥ / UA,UiA ( R o, iF~,,/.. 2_00, 'ITl- ~sgc~&_NTs ONE ~ ?~;~ , , . , . our o?~ ~I~;~ ~s;~ u~iT ~,H,U. oN ~ UN ~d~T~d ~/~J I'~F~ F F 'vrrr'. p,o. BoX Zoo C~? ~tfl F~ 17oo1-0Zoo COMMONWEALTH OF PENNSYLVANIA Department of Corrections State Correctional Institution at Rockview (814) 355-4874 May 10, 2002 SUBJECT: Property Concerns TO: FROM: Keith Gant, DD-8972 SCi-Camp Hill Oe~ffr~ackovan Superintendent Assistant As you are now at Camp Hill, so are your records, which makes it very difficult to even look into this matter. If you send me copies of the property inventory sheet, misconduct, and confiscated items receipt (if you have one), along with an explanation of what you think is missing, I'll investigate and give you a report of my findings. JAR:tlk C: File f.-~c,, l-,,o7:<,, q COMMONWEALTH OF PENNSYLVANIA Department of Corrections State Correctional Institution at Rockview (814) 355-4874 June 28, 2002 SUBJECT: Property Concerns TO: FROM: Keith Gant. DD-8972 SCI,Camp Hill Superintendent Assistant After receiving the requested records from you, I investigated thiS matter. You did receive a misconduct in September 2000 for excessive commissary. The appropriate Confiscated Items Receipts were issued. At your hearing the Hearing Examiner advised you could keep only $45 worth of the confiscated items. The remainder would be destroyed as contraband. Reports from Lt. Vance, Sgt. McGill at the Property Office, and the Hearing Clerk indicate you took no further action at that point. You had several options. You could have sent a request to Lt. Vance or Property asking to select those items you wished to keep. You could have filed an appeal on the misconduct sanction. Instead you did nothing and contacted no one regarding how you were. to choose the allowable $45 worth of commissary. The confiscated items were stored in the P~op~rty Office. awaiting some notification regarding their disposition. When the time in which to file a misconduct appeal had passed, the items should have been destroyed. However, they continued to be stored until April 2001, at which time a general housecleaning was done and, as no notification had ever been received on the items, they ~ere finally' destroyed. No reimbursement is due to you. The responsibility was yours to notify staff of your intentions regarding selection of the allowable $45 worth of items, As you never took the initiative to inquire about the items from September 2000 through April 2001, the items were appropriately destroyed.- : JAR:tlk C: File : ' · · ' · Exhibit B IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH GANT, Petitioner, V. JEFFREY A. BEARD, et al., Respondents Civil Action No. 02-4363 NOTICE TO PLEAD TO: KEITH GANT, DD8972: You are hereby notified to file a written response to the enclosed Answer and New Matter within twenty (20) days from service hereof or default judgment may be entered against you. Dated: March 25, 2003 Respectfully submitted, //Raynfi6nd W. Dorian As,[stant Counsel Attomey ID No. 48148 PA Department of Corrections 55 Utley Drive Camp Hill, PA 17011 KEITH GANT, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Petitioner, JEFFREY A. BEARD, et al., Respondents : Civil Action No. 02-4363 RESPONDENTS' ANSWER TO PETITION FOR REVIEW WITH NEW MATTER AND NOW, come the Respondents, Jeffrey A. Beard, Ph.D., Secretary of the Pennsylvania Department of Corrections, et ali., by and through his attorney, Raymond W. Dorian, Assistant Counsel, and answer as follows: 1. This is a conclusion of law to which no response is necessary. 2. Admitted. 3. Admitted that Respondent Beard is the Secretary of the Pennsylvania Department of Corrections. The rest of this averment is denied. 4. Admitted that Respondent Meyers is the Superintendent at the State Correctional Institution at Rockview ("SCI-Rockview"). The rest of this averment is denied. 5. Admitted that Respondent Rackovan is the Assistant to the \ Superintendent at SCI-Rockview. Admitted that he also acts as the Grievance Coordinator. The rest of this averment is denied. 6. No response is necessary. 7. Admitted. 8. Admitted that the Petitioner was issued Misconduct No. 382968, which was for possession of any item not authorized for retention or receipt by the inmate not specifically enumerated as Class I contraband. This rest of this averment is denied. 9. Admitted that the Petitioner received a hearing on the misconduct and received a reprimand and warning. Admitted also that he was permitte_d to keep only $45.00 worth of the confiscated items, and that the remainder Of the items' were to be destroyed. Admitted also that he received confiscation slips for the items which were seized. The rest of this averment is denied. 10. Denied. Proof thereof is demanded at: time of hearing, if relevant. 11. Admitted. 12. Admitted that on June 28, 2002, Jeffrey A. Rackovan wrote to the Petitioner concerning his property concerns. That letter speaks for itself. 13. This is a conclusion of law to which no response is necessary. By way of further answer, the Petitioner has received adequate due process. 2 14. This is a conclusion of law to which no response is necessary. To the extent this averment may be deemed factual, it is denied. 15. This is a conclusion of law to which no response is necessary. To the extent that it may be deemed factual, it is admitted that the Department has an inmate grievance procedure, entitled "DC-ADM 804." It is denied that the procedure is inadequate. 16. This is a conclusion of law to which no response is necessary. By way of further answer, it is denied that the Petitioner was entitled to a hearing prior to the destruction of his personnel property. 17. This is a conclusion of law to which no response is necessary. By way of further answer, the Petitioner did receive adequate due process with respect to the confiscation and destruction of his personal property. The inmate grievance procedure constitutes an adequate post-deprivation remedy. 18. No response is necessary. 19. No response is necessary. 20. No response is necessary. 21. No response is necessary. 22. No response is necessary. WltEREFORE, the Respondents request fhat the Petition for Review be dismissed. 3 NEW MATTER By way of new matter, the Respondents aver as follows: 23. On September 29, 2002, the Petitioner was issued Misconduct No. 382968, and charged with possession of any item not authorized for retention or receipt by the inmate not specifically enumerated at Class I contraband. True and correct copies of Misconduct No. 382968 and the hearing examiner's report are attached hereto and marked Exhibit "A." 24. On October 2, 2001, a hearing was held on the misconduct and the Petitioner received a reprimand and warning. Petitioner was also advised by the Hearing Examiner that he could keep only $45.00 worth of the confiscated items. The remainder of the confiscated items was to be destroyed as contraband. Exhibit "A." 25. The Examiner. 26. entitled. 27. See Petitioner never appealed from the decision of the Hearing The Petitioner has received all of the due process to which he is The Petitioner was provided an adequate post-deprivation remedy in the form of the inmate grievance system under Department Policy DC-ADM 804. 4 28. The Petitioner utilized the inmate grievance system by filing Grievance No. 20922 on May 16, 2002 at SCI-Camp Hill. True and correct copies of Grievance No. 20922 and response are attached hereto and marked Exhibit "B." 29. On June 28, 2002, Respondent Rackovan wrote to the Petitioner concerning his property concerns. A true and correct copy of Respondent Rackovan's memo to the Petitioner is attached hereto and marked Exhibit "C." 30. The Petitioner has failed to state a cause of action. 31. The Petitioner has failed to exhaust awfilable administrative remedies. WHEREFORE, the Respondents request that the Petition for Review be dismissed. By: Respectfully submitted, Office of General Counsel ~aymon~. Dorian · Assistat~ Counsel Attorney I.D. No. 48148 Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: March 25, 2003 COMMONWEALTH OF PENNSYLVANIA DC Number ~z)/') 'T- Name ice of Incident DEPARTMENT OFCORRECTIONS 3 8 2 9 6 8 OTHER [] DC-ADM 801 INFORMAL RESOLUTION IInstitution ~'C//~' I-,~ ~lncident Time 24 Hr.. Base · ~',,¢*-,3~-~/Incident Date ~'"/~'"'~,//'Date~°'f Report - DC Number OTHER INMATES OR STAFF INVOLVED OR WITNESSES (CHECK I OR W) Name DC Number Name MISCONDUCT CHARGE OR OTHER ACTION ~/,z~'$ .~. STAFF MEMBER'S VERSION IMMEDIATE ACTION TAKEN AND REASON Nol~Ct:: TO INMATE found guilty of a Class 1 misconduct, a~y pre-misase slatu$ you have will I~ removed. WHITE -- DC-:I$ YELLOW -- Inmate PINK -- Reporting .e~ EXHIBIT DC,-ADM 80, Inmate Discipline POlicy, Attachment B II A Deputy Superintendent Facility Management. SCIC POP RECORDS P. 03 - DIgCIPLINARY HEARING REPORT DC Number I Name · DD897~ Keirh Gent CHARGES Fax :717-763-7133 COMMONWEI DEPARTMI Mar 25 2003 08:i7 [] Class II, ~51 P6ssess~on of by the inmate, hot ,LTH OF PENNSYLVANIA '.NT OF CORRECTIONS ' Ir~stitution I H~aring Date I H~ar. Irig Time. Verdlct Other I. ~ [] Not'Guilty HE[ARING ACTION item not authorized for retention or receip.t a Class [ aisc ch)~rge No. from'Part I FINDINGS OF FACT. VERDICT, AND .~ I~YE$ [] NO The inr~ata has heardtha end wh~ will happen. I'-I NO The cirqumstances of the c [] NO The ophottunlty to have reco~d ~vas given. f'q NO The in,ate has been adv: review:may be submitted raa~oru~ for the review. NAME{S) OF HEARING ~(AMINER/COMM~I I ~E [TYPED OR pRINT-D) : C. Baker cislon and has bee~ told ~he reason for it' irge have been read and fully explained to inmate's' verSion regorted as par~ of %h~ Ithe! within 15 days · reques~ fei a formal nd that this request must con,in specific: SEE APPENDICES Signature mn, Pall J"~[~"/ .~. ~ COMMONWEALTH OF PENNSYLVANIA ~ DEPARTME~ OF P.O. BOX 598 ",. C~P HILL, PA 17001.0S98 ~R~ANCE COORDI~TOR FACILI~: I DATE; HOUSING ASSIGNmeNT:. INSTRUOTIONS: 1 Refer to the DC-~M 804 for procedures on ~e inmate grievance s~tem. 2. ~ate your grievance In B[~RA In a b~ef and undem~ndable mannas 3. List In Block B any a~ions you m~ have ~ken to resolve ~ls matter. Be sum to Include the Idantl~ membe~ you ha~ ~ Provide a b~,,c[~r s~atem~t of your gde~noe. ~d~iond paper m~y be used, ~axlmum ~o ~gee. B. uat ac~ons ~ken ~fl. amff ~u have conta~, before summing ~1~ gdevance. Your grievance haa.beanJ:.e..ce!v?.d..and Will be processed in accordance Wi~h ,DO-ADM 804, Signature of Facility Grievance Coordinator ~ w~rm - Fec~ ~e;-~'C~rd~r:~/ CANA copy I'~.~mk~, ,~nnn I ~ I lYT::C"d,-hn~ 'IT-LC~ GOLDENROD - Ir~e CoW DC,.ADM ao4. ~m'~te C~rlevance P~rt 8 COMMONWEALTH 'OF PENNSYLVANIA F"clilb' Gdeva .r~e Coordinator D~M-aO1-l~ate D{sd~l~a~ and Refilled Housing Un~ Pro~dure; D~ADM~O2-A~m~n~Mmt~ve cu~ody ~e gdewca does not/n~lc~fe ~ ~ou were ~monal[y affe~e~ by Depa~ment or~o[l~ e~on. or.p?~=y. ~ ~~.~ Gmu~ gde~c~ are pm~ed, '..The grievance was n~ s~ned Grievance must be legtbte.and pmse~ed In a cou~eoEs.manner, ~e grievance exoeed~ ~. ~a (2) page limE. ~s~dptlon needs to be bdef. erlevanaes ~se~ upon'd~erent e~nb shall be pmse~ed sepa~ly, ' ~e ~jevan~ was nat submlEed ~h~ ~ffee~ (1~) ~ng'da~ ~pr ~eeve~ upon ~ ~a1~s ~e b~ed. Yeu ~ ~ry under gde~n~ ~on, ~ou may ~ot file i~ ~. dtm~ by ~e Inmete to ~e appmpffate f~a[l~y, The/~{s) presented an me a~ach~ ~evan~ h~ ~en revle~d and ~dd~ed pmWoudy.. FOR OFFIOiAL USE ONLY" j SUBJECT: Property Concerns COMMONWEALTH OF PENNSYLVANIA Department of Corrections State Correctional Institution at Rockvlew (814) 355-4874 June 28, 2002 TO: FROM: Keith Gant, DD-8972 SCl-Camp Hill ckovan ' Superintendent Assistant After receiving the requested records from you, I investigated this matter. You did receive a misconduct in September 2000 for excessive commissary. The appropriate Confiscated Items Receipts were Issued.. At your hearing the Hearing Examiner advised you could keep only $45 worth of the confiscated items. The remainder would be destroyed as contraband. Reports from Lt. Vance, Sgt. McGill at the Property Office, and the Hearing Clerk indicate you took no further action at that point. You had several options. You could have sent a request to Lt. Vance or Property asking to select those Items you wished to keep. Yoq could have filed an appeal on the misconduct sanction. Instead you did nothing and contacted no one regarding how you were to choose the allowable $45 worth of commissary. The confiscated items were stored in the Property Office. awaiting some notification regarding.their disposition. When the time in which to file a misconduct appeal had passed, the items should have been destroyed. However., they continued to be stored until April 2001, at which time a general housecleaning was done and, as no notification had ever been received on the items, they were finally destroyed. No reimbursement is due to.you. The responsibility was yours to notify staff of your intentions regarding selection of the allowable $45 worth of items. As you never took the initiative to inquire about the items from September 2000 through April 2001, the items were approPriately destroyed. ' ~ JAR:ak C: File EXHIBIT I ' ' C VERIFICATION I, Jeffrey A. Rackovcan, Assistant to the Superintendent of the State Correctional Institution at Rockview ("SCI-Rockvi[ew'), hereby verify that the allegations contained in the attached Respondents' Answer to Petition for Review with New Matter are tree and correct to the best of my knowledge, information and belief, and that I give this verification subject to the criminal penalties relating to unswom falsification to authorities, 18 Pa.C.S.A. §4904. Date: Jefttr(ey ~. ~ackovan Assistant to the Superintendent SCI-Rockview VERIFICATION I, Robert W. Meyers, Superintendent of the State Correctional Institution at Rockview ("SCI-Rockview"), hereby verify that the allegations contained in the attached Respondents' Answer to Petition for Review with New Matter are tree and correct to the best of my knowledge, information and belief, and that I give this verification subject to the criminal penalties relating to unswom falsification to authorities, 18 Pa.C.S.A. {}4904. Robert W. Meyers Superintendent . SCI-Rockview IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA KEITH GANT, Petitioner, V. Civil Action No. 02-4363 JEFFREY A. BEARD, et al., Respondents 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 Respondent Beard's .~auswer to Petition for Review with New Matter upon the person(s) in the above-captioned matter. Service by first-class mail Addressed as follows: Keith Gant, DD8972 SCI-Camp Hill P.O. Box 200 Camp Hill, PA 17001-0200 Pennsylvania Depamnent of Corrections Office of Chief Counsel 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: March 25, 2003 Exhibit C ---, 13C- ~,rtN~ f~oY IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW KEITH GANT, Petitioner, JEFFREY A. BEARD, et al., : : Respondents. : Civil Action No. 02-4363 CERTIFICATE OF SERVICE. I hereby certify that I am this day depositing in the U.S. mail a tree and · S~ correct copy of the foregoing Respondent Motion for Judgment on the Pleadings upon the person(s) in the above-captioned matter. Service by first-class mai_l Addressed as follows:: Keith Gant, DD8972 SCI-Camp Hill P.O. Box 200 Camp Hill, PA 17001-0200 -S~acy M. jarvi~ . Acting Clerical Supervisor Pennsylvania Department of Corrections Office of Ckdef Counsel 55 Utley Drive Camp Hill, PA 17011 (717) 731-0444 Dated: September 23, 2003 KEITH GANT, Petitioner 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JEFFREY A. BEARD, et al., Respondent NO. 02-4363 CIVIL TERM IN RE: RESPONDENTS' MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HOFFER, P.J., OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 5th day of December, 2003, after careful consideration of Respondents' motion for judgment on the pleadings, and for the reasons stated in this opinion, the motion is granted dismissed. ,/Keith Gant, DD-8972 SCI-Camp Hill P.O. Box 200 Camp Hill, PA 17001-0200 Petitioner, Pro Se ,,,'Raymond W. Dorian, Esq. Assistant Counsel Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 Attorney for Respondent and Petitioner's petition for review is BY THE COURT, J.,v,~'' Y · · ~NVA'~SNN~d KEITH GANT, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JEFFREY A. BEARD, et al., Respondent NO. 02-4363 CIVIL TERM IN RE: RESPONDENTS' MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HOFFER, P.J., OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, J., December 5, 2003. In this civil action, a state prisoner has sued the Commonwealth's Secretary of Corrections, the Superintendent of the State Correctional Institution at Rockview, and the Assistant Superintendent and Facility Grievance Coordinator of the State Correctional Institution at Rockview.l This tort action2 is premised upon the institution's failure to preserve certain personal property of the prisoner which was confiscated from his cell.3 ~ Petition for Review, paras. 3-5; Respondents' Answer to Petition for Review with New Matter, paras. 3-5. 2 This action was initially filed in the Commonwealth Court as a petition for review. It was transferred to this court by the Commonwealth Court pursuant to the following per curiam order: NOW, July 25, 2002, upon consideration of petitioner's pro se complaint, and it appearing that petitioner seeks money damages from respondents for an alleged violation of petitioner's constitutional rights, and it further appearing that this court lacks jurisdiction over tort actions for money damages whether based on common law trespass or 42 U.S.C. § 1983 because such actions are in the nature of trespass in that they seek money damages as redress for an unlawful injury and are properly commenced in the court of common pleas, see Fawber v. Cohen, 516 Pa. 353, 532 A.2d 429 (1987); Balshy v. Rank, 507 Pa. 384, 490 A.2d 415 (1985), this matter is transferred to the Court of Common Pleas of Cumberland County. Gant v. Beard, No. 505 M.D. 2002 (Pa. Commw. Ct. July 25, 2002). 3 Petition for Review, paras. 1-20. For disposition at this time is Respondents' Motion for Judgment on the Pleadings. For the reasons stated in this opinion, the motion will be granted. STATEMENT OF FACTS "A motion for judgment on the pleadings is in the nature of a demurrer in which all of the opposing parties' well-pleaded allegations are viewed as true, but only those facts specifically admitted by the objecting party may be considered against him." Ithier v. City of Philadelphia, 137 Pa. Commw. 103, 105, 585 A.2d 564, 565 (1991). "In ruling on a motion for judgment on the pleadings, [the court] must limit [its] review of the facts to those appearing in the pleadings themselves, keeping in mind that the moving party admits the truth of all allegations of his adversary and the untruth of his own allegations that have been denied." Kline v. Pennsylvania Mines Corp., 120 Pa. Commw. 7, 9, 547 A.2d 1276, 1277 (1988). Viewed in this light, the facts of the case may be summarized as follows: Petitioner is Keith Gant, a state prisoner presently incarcerated at the State Correctional Institution at Camp Hill, Cumberland County, Pennsylvania.4 Respondents are Jeffrey A. Beard,s Secretary of the Pennsylvania Department of Corrections, R.W. Myers, Superintendent of the State Correctional Institution at Rockview, and Jeffrey A. Rackovan, Assistant Superintendent and Facility Grievance Coordinator at the State Correctional Institution at Rockview.6 On September 29, 2001, Petitioner, while an inmate at the State Correctional Institution at Rockview, was cited for misconduct by the institution 4 Petition for Review, para. 2. Pursuant to Pennsylvania Rule of Civil Procedure 126 (liberal construction and application of rules of procedure), the court will, for purposes of the motion for judgment on the pleadings, regard the Petition for Review filed in this case as a complaint, Petitioner as a plaintiff, and Respondents as defendants. s Secretary Beard's name is incorrectly given in the Petition for Review as Bread. 6 Petition for Review, paras. 3-5. 2 for having items in his cell worth $181.00, in excess of the permitted value of $45.00.7 The items were confiscated by the institution.8 Petitioner pled not guilty to the misconduct, and received a hearing on the issue on October 2, 2001, before a hearing examiner named Carol Baker.9 The hearing resulted in a finding of guilt, a reprimand/warning, and a direction that the "excess commissary" be destroyed,to Petitioner was notified of his right to request a formal review of the matter within 15 days.~ Petitioner neither requested a formal review of the matter nor advised the institution as to which items, if any, within the permitted value, he wished to retain.~2 Nor does Petitioner, for present purposes, challenge the proposition that his possession of the items of personalty, which exceeded in total value $45.00, was properly found a misconduct.~3 On May 16, 2002, more than seven months after the decision of the hearing examiner, Petitioner filed a grievance regarding the confiscated items.~4 He was advised that the items had been destroyed in the absence of (a) an appeal from the hearing examiner's decision and (b) any advice from Petitioner as to his wishes ? Petition for Review, paras. 7-9. 8 Petition for Review, para. 9. 9 Respondents' Answer to Petition for Review with New Matter, paras. 23-24. These paragraphs in Respondents' new matter do not appear to be factually disputed in Petitioner's Response to Respondents Answers to Petition for Review. l0 Petition for Review, para. 9; Respondents' Answer to Petition for Review with New Matter, para. 24 and Ex. A. il Respondents' Answer to Petition for Review with New Matter, para. 25. This paragraph in Respondents' new matter does not appear to be factually disputed in Petitioner's Response to Respondents Answers to Petition for Review. 12 Respondents' Answer to Petition for Review with New Matter, paras. 25, 29, and Ex. C. These allegations in Respondents' new matter do not appear to be factually disputed in Petitioner's Response to Respondents Answers to Petition for Review. ~ See Petitioner's Response to Respondents Answers to Petition for Review. ~4 Respondents' Answer to Petition for Review with New Matter, para. 28 and Ex. B. These allegations in Respondents' new matter do not appear to be factually disputed in Petitioner's Response to Respondents Answers to Petition for Review. 3 with regard to preservation of the confiscated property within the permissible valuation limit.~5 The instant tort action was filed by Petitioner on July 23, 2002.16 Relief requested in the petition is "declaratory relief in the full amount of $181.00'd7 or "return [of] said property for shipping allowing $45.00 worth to be retained.''18 By order of court dated September 17, 2002, the Honorable Edgar B. Bayley permitted Petitioner to proceed in forma pauperis. The motion of Respondents sub judice for judgment on the pleadings was filed on September 24, 2003. The grounds for judgment advanced by the motion are sovereign immunity, failure to exhaust administrative remedies, and failure to present a claim upon which relief can be granted, t9 DISCUSSION It is well settled in Pennsylvania that a motion for judgment on the pleadings should be granted only in cases where there are no issues of material fact and which are so free from doubt that a trial would clearly be a fruitless exercise. 3 Goodrich Amram 2d §1034(b):2 (1998). In the present case, the pleadings do not, in the court's view, support a legally sufficient claim against Respondents. Just as there is a "too bad category" of contracts,2° there is conduct of a non-contractual nature which may occasion some misfortune to another person but is not sufficiently careless, willful or otherwise inappropriate as to rise to the level of a legally cognizable civil wrong. The eventual destruction of items confiscated from Petitioner's cell as a ~5 Respondents' Answer to Petition for review with New Matter, para. 29 and Ex. C. The receipt of this information does not appear to be factually disputed in Petitioner's Response to respondents Answers to Petition for Review. to As noted previously, the initial filing was in the Commonwealth Court. See note 2 supra. ~7 Petition for Review, para. 20. ts Petition for Review, para. 19. ~9 Respondents' Motion for Judgment on the Pleadings, para. 6. 20 Muhammadv. Strassburger, 526 Pa. 541,547-48, 587 A.2d 1346, 1349 (1991). 4 consequence of his misconduct, under the circumstances recited above, falls within that category of conduct. For this reason, the following order will be entered:el ORDER OF COURT AND NOW, this 5th day of December, 2003, after careful consideration of Respondents' motion for judgment on the pleadings, and for the reasons stated in this opinion, the motion is granted and Petitioner's petition for review is dismissed. BY THE COURT, J~Vesley Oler,~, J. /"' ' Keith Gant, DD-8972 SCI-Camp Hill P.O. Box 200 Camp Hill, PA 17001-0200 Petitioner, Pro Se Raymond W. Dorian, Esq. Assistant Counsel Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 Attorney for Respondent 21 AS a result of the disposition of Respondents' motion on this ground, it is unnecessary to consider the other grounds raised by Respondent. 5