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Home My WebLink About95-06733 l~f:i:~: ~~ ~., It . C~:/l'I'lt'ICAn: AND 'rRANSHIT1'AI. O~' IU;CORD UNIJEII PENNSYI.vANIA RUI.E OF AI'PELI.An: PIIOC~:DURE 1931_.u:J To the Prothonotary of the Appellate Court to which the within matter has been appealed: SUPERIOR COURT OF PENNSYI.vANIA THE UNDERSIGNED. Prothonotary of the Court of Common Pleas of Cumberland County. the said court being a court of record. do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Case No. 95-6733 Civil Term: No. 376 HBG 1996 MICHAEL CONWAY, a~a ""IN ALl BEY Va. I / PENNSYLVANIA DEPA~TMENT OF CORRECTIONS, MARTIN HO~N, Commissioner / The documents comprfsing the record have been numbered from No.1 to No. 90 y'and attached hereto as Exhibit A is a list of the documents cor~espondingly numbered and identified with reason~ble definiteness, ~ncluding with respect to each document, the number of pages comprising the document. ,- The date on which the record has been transmitt~d to the I appellate court is I June 13. 1996 (Seal of Court) I / / I / . . .,(~ t. JVdkA.ptLLU- Prothonotary . . I An additional copy of this certificate is enclosed. Please sign and date ,copy, thereby acknowledging receipt of this record. RECORD RECEIVED: Date: (signnture & title) Commonwealth oll'ennsylvania Coonly or Cumherland \ ss: I, Lawrence E. Welker . I'rolhonolary 01 Ihe Coorl or ClIlnmon Pleas in and ror said Counly, do herehy eertiry Ihal Ihe 11Ilegoing is a rull,lrue and eorreel copy olthe whole record oflhe case Iherein stated. wherein Michael Conway, aka Amin AU Bey Case No. 376 IIBG 1996 Plalnlifl', and Pennsvlvania Department of Corrections. Martin Horn. rmmissioner Dercndant _. as Ihe same remains or rCl:OId berore Ihe said Courl at No. 95-6733 or Civil Term, A.D. 19_. hereunto sel my hand and affi~ed Ihe seal or said Courl day or June A. 0.. 19..2L. . .:,.; a.w-tl"'A~L. t. )f:; jj LA ./-'~L'" zt.'! I Prnthonolllry In TESTIMONY WIlEREOF, I have this Thirteenth l. Harold E. Sheely President Judge or the Ninth Judicial Dislriel. composed or Ihe Counly or Cumberland, do ccrtiry Ihal r.awrence E. Welker, prothonotarY , by whom Ihe anne~ed record. certincate and allestalion were made and given. and who. in his own proper handwriting,lhereuntosubseribed his name and affi~ed Ihe seal orlhe Court or Common Picas or said cou~, was. allhelimeohodoing,and nowis Prothonolary in and ror said County or Cunmrla in the Commonwealth or "enMylvania. duly commissioned and quallned 10 all or whose aetsassuch rull faith and credit are and ought 10 be given a. well In Courls or judicature as elsewhere. and thallhe said record, eerlincale and allestation are in due rorm of law and de hy Ihe proper officer. , - CL 1_ Commonwealth or I'ennsylvania Counly or Cumberland } ss: l. r",wr"nt'" F.. W"lker . I'rothonotllry or the COUll or Common Pleas in and ror Ihe sllid County. do eerliry Ihllt Ihe Ilooorllble HArold E. Sheely by whom Ihe foregoing allesllltion was made. and who has thereunto subscribed his nllme. was. al the time or making thereor. and .Iill is Presidenl Judge oflheCoullorCommon Pleas. Orphan' Court and Court or Quarter Sessions or the I'ellee in and rur sllid Cuunty. dilly Cummissiuned 1I0d \jlllllined: 10 all whose uets liS slIeh rllll raith Ilnd eredil lire Ilnd ullght tu be given, liS well in CUllrls ur jlldiclltllre as elsewhere. IN T1:STlMONV WHEREOF. 1 hllvc hereulllu sel my hand nnd Ilfl'ixed Ihe senl nl SlIid CUIII.! this 13th dllY ur June A.fl. 19_~. .~1-u.L e. J~i~-I-&J~ 11llllhlllllll.ll\ I I ~ >0 .. j ~ E c i& " j 2: 2: .... 0 0 . Q u E J i ~ ... ...... llIi . l! ~ e .. ! ~ .~ Iol ~. llIi .. j Q ~ " . ~ Iol j ~ I u - ... > ~ "" - ] .:!l . ..; ~ ~ Il. u: ~ ~ .~ ::E .., .... Iol c '" 1- o'-l ..... j ;0< .. l' ~ Iol ] P'l e .c e :l u 0 .. E ci ci i! 8 ~ 0 0 8 ;z ;z u. .:: w .. ! IWE M>. 1 - 12 14 - 21 22 - 29 31 - 35 36 - 39 40 - 43 44 - 47 Among Ihc Rccnrds and I'roccedings enrolled in Ihe eourl of Cmnmon "Ieas in and rnr Ihe county or Cumberland No. 376 BOO 1996 to No. 95-6733 Civil in Ihe Commonwellllh of Pennsylvania Term. 19 i. eonlllined Ihe rollowing: COPY OF Annearance (lOCKET ENTR Y MICHAEL ca:IiIA Y, aka AMIN ALl BEY VS. PA DEpAR'1l-1ENI' OF CORRECI'IONS, MARTIN HORN, COO11lissioner 13 Nov. 28, 1995, Motion for production of Urine, for Mass spectrometry Testing and Order of Court, filed. . AND NOW, this 22nd day of November, 1995, upon consideration of the attached Motion for production of Urine, for Mass Spectrometry Testing, a RULE is hereby issued upon the Respondents to show cause why the relief re- quested should not be granted. RULE RE'IllRNABLE within 20 days of service. By the Court, J. Wesley Oler, Jr., J. Nov. 28, 1995, Order of Court, filed. In Re: Motion for production of Urine, for Mass Spectrometry Testing AND NOW, this 22nd day of November, 1995, Petitioner is granted leave to proceed in this matter in FOrma Pauperis. By the Court, J. Wesley Oler, Jr., J. Dec. 18, 1995, Respondents' Answer to Rule to Show Cause Order Dated November 22, 1995, filed. Dec. 29, 1995, Mandill1US, and Objections to "Respondents" Answer to Rule to Show Cause Order, filed. Jan. 10, 1996, Order of Court, filed. AND NOW, this lOth day of January, 1996, upon consideration of Petition er's Motion for Production of Urine, for Mass Spectrometry Testing, and of Respondents' Answer to Rule to Show Cause Order Dated November 22, 1995, raising serious questions involving subject matter jurisdiction, legal sufficiency of Petitioner's pleading and venue, a hearing/argument on the mtion, including the issues raised in Respondent's answer, is SCHEOOLED for Friday, March 22, 1996, at 1:30 p.m., m Courtroan No.5, Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, J. Wesley Oler, Jr., J. Jan. 10, 1996. Application to Admit DJcU11Cntary Evidence, filed. Jan. 24, 29, 1996, Motion Requesting to Take Deposition and Discovery, and Order of Court, filed. AND NOW, this 29th day of January, 1996, upon consideration of Peti- tioner's Motion Requesting to take Deposition and Discovery, a RULE is here- by issued upon the Respondents to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. By the Court, J. Wesley Oler, Jr., J. ~. 8, 1996, Application to Adnit Documentary Evidence, filed. ~. 8, 21, 1996, Motion for Appointment of Counsel, and Order of Court, fil AND NOW, this 21st day of February, 1996, lIpon consideration of Petitioner's motion fo': appointment of counsel, the public defender is APPOINTED to represent the Petitioner. 30 . PAlE Nl. 4B - 51 Feb. 20, 1996, Ilespondents' Response to Rule to Show Cause Order Dated January 29, 1996, filed. 52 - 55 Feb. 22, 1996, Application to Admit Documentary Evidence, filed. 56 - 62 Feb. 22, 1996, energency Ilequest for Special Injunctive Relief. and Order of Court, filed. AND tonoI, this 22nd day of February, 1996, the court being in receipt of the attached Petitioner's pro se "Emergency Request for Special Injunctive Relief." and the Public Defender having recently been appointed to represent Petitioner, the document is forwarded to the Public Defender Office for such action as it deems appropriate on behalf of Petitioner. By the Court, J. Wesley Oler, Jr., J. 63 - n MIIrch 25, 1996, Order of Court, filed. AND tonoI, this 25th day of March, 1996, upon consideration of Respondent Prelimifldry Objection in the nature of a demurrer to petitioner's Motion for Production of Urine, for Mass Spectrometry Testing, and following oral argu- ment, the preliminary objection is SUSTAINED and the motion is DISMISSED. See Wilder v. Department of Corrections, Pa. CamtW. , A.2d (No. 304 M.D. 1995)(March 13, 1996)(dismdssing inmate's mandamus action whe prerelease status was revoked due to allegedly misleading drug test result). By the Court, J. Wesley Oler, Jr., J. 73 - 74 MIIrch 27, 1996, Order of Court, filed. AND tonoI, this 22nd day of March, 1996, upon consideration of the Respondents' preliminary objections in the above-capationed matter, and fOllowing oral argument on this date in which the Petitioner was represented by TinDthy L. Clawges, Esquire, Public Defender, and the Respondents were represented by Shawn p. Kenny, Esquire, the matter is taken under oovisement By the Court, J. Wesley Oler, Jr., J. 75 - Bl April 11, 1996, Notice of Appeal, filed. Notice is given that Michael Conway aka Amin Ali Bey, Petitioner, here- by appeals to the Superior Court of Pennsylvania fran the order entered in this matter on the 25th day of March, 1996. This order has been entered in the docket as evidenced by the attached copy of the docket entry. By: Michael Conway, Pro Se B2 - B3 MlIy 16, 1996, Superior Court of Pennsylvania Notice of Appeal Docketing to No. 376 IIBG 1996, filed. B4 - 90 MlIy 21, 1996, Opinion Pursuant to pA RAP 1925, filed. ~ ,.-,.. MICHAEL CONWAY alkla IN THE COURT OF COKMON PLEAS OF AKIN ALl BEY, CUMBERLAND COUNTY, PENNSYLVANIA petitioner v. CIVI~ ACTION - LAW PA DEPARTMENT OF CORRECTIONS and MARTIN HORN, COMMISSIONER: Respondents : 95-6733 CIVIL TERM ORDER OF COURT AND NOW, this 22nd day of March, 1996, upon consideration of the Respondents' preliminary objections in the above-captioned matter, and followinq oral arqument on this date in which the Petitioner was represented by Timothy L. clawqes, Esquire, public Defender, and the Respondents were represented by Shawn P. Kenny, Esquire, the matter is taken under advisement. By the court, TIMOTHY L. CLAWGES, ESQUIRE Assistant public Defender ~q'/, SHAWN P. KENNY, ESQUIRE For the Respondents wcy FILE C:~~V 73 .1 1M TH. COURT OF COKKOM .LBA8 OF CUJIIIDL>>IJ) COUllTY, .ZIlIl8YLVUIA CIVIL DIVI8IOM MICHAEL CONWAY, aka, AMIN ALl BEY, Docket No. 95-6733 civil Petitioner Trial by Jury of 12 Demanded v. . . DEPARTMENT OF CORRECTIONS, MARTIN HORN, COMMISSIONER, . . . . Respondents : aI8.01lDIJITS' uswn TO an. '1'0 SHOW causl ORDER DaTED HOVEMBD 22. 1995 1. Petitioner Michael conway, aka, Amin Ali Bey, is an inmate currently incarcerated at the State Correctional Institution at Camp Hill ("SeI-Camp Hill") . 2. On November 28, 1995 petitioner filed a "Motion for Production of Urine, for Mass spectrometry Testing". 3. On November 28, 1995 the Prothonotary of Cumberland County entered an order on the Docket which was signed and dated by Judge J. Wesley Oler, Jr. on November 22, 1995 and which granted petitioner'S request for in forma DauDeris status. On that date the Prothonotary also docketed a rule which had been issued upon the Respondents to respond to Petitioner's motion within twenty (20) days of the date of service of the Order. Respondents' Answer herein is filed pursuant to that Court Order. 4. The gravamen of Petitioner'S Motion is his assertion that he has a constitutionally protected liberty interest which was deprived by virtue of a random urine test conducted on AU9U.t 20, 1995 which resulted in Petitioner's transfer from a Department of correction'S community corrections center at 27 North Cameron street, Harrisburg, Pennsylvania to SCl-camp Hill. Petitioner concedes thet the urinalysis conducted on August 20, 1995 was positive for the presence of opiates, but instead contends that the positive finding can be explained on the ba.i. of his consumption of a salad dressing which contained poppy .eed.. PRELIMINARY OBJECTION ON THE BASIS OF IMPROPER VENUE 5. Although the Courts of common Pleas of this commonwealth have unlimited original juriSdiction, ~ 42 Pa.C.S.S931(a);Kester v. Bd. of probation and parole,148 pa.Comwlth. 29, 609 A.2d 622,626, n.5(1992), there is no law.uit pending before this Court which would confer subject matter jurisdiction and hence allow this Court to order the relief requested by the petitioner. 2 ~{'"~, :j';c::;;-;:;l-., ','" , " " I I J a. To the extent Petitioner'. "Hotion" i. con.trued .. . """on too ..,. ot ...... CO,"".' 'h'. CO'o". J.o,..,..,on ,. li.ited under Pa. R.Cri.. P. Rule 1701. That RUle provide. .. follow.: (a)A petition for writ of habeas corpus challenging the legality of the petitioner'. detention or confinement in a cri.in.l matter shall be filed with the clerk of court of the jUdicial district wherein the order directing the petitioner's detention or confine.ent w.s entered. (b)A petition for writ of habeas corpus challenging the Condition of the petitioner's confinement in a cri.inal matter shall be filed with the clerk of cOurt of the jUdicial district Wherein the Petitioner i. Confined. 7. Based upon the foregoing RUle, and becau.e Petitioner w.. sentenced in Dauphin County, this Court's jurisdiction in a h.beas corpus matter is limited to petitions challenging the condition. of the Petitioner'. COnfine.ent. There i. no such .,'....,on in """0.'0" '.o"on' "'oh ,. ... ... ...,'..... ... non."'on. ot h'. oo.t'....... .....0... ..... """0000" Hot'on ..."..... ... '''''''' ot h'. oo.t,...... .. BeI-Oo.. Hill, which i. within the jurisdiction of the COurt of Common Pl.a. of Dauphin County, Therefore, this COurt does not have sUbject .atter jurisdiction to entertain Petitioner'. Hotion, even if it is treated as a Petition for Writ of Habeas Corpu.. ,,;. I See Xestet, BUtlrl, "Where the sUbstance ot a Pleading is identical to a writ ot habeas corpus, it should be treated a. such." a09 A.2d at 625. 3 Demurrer 8. The authority to establish pre-release centers such as Petitioner was confined in at the time of the revocation of his pre-release status, is set forth in Title 61 P.S.51051, which provides that the Bureau of corrections Z "shall have the power and its duties shall be to establish with the approval of the Governor such prisoner pre-release centers at such locations throughout the commonwealth as it may deem necessary to carry out effective prisoner pre-release programs therefrom." Pursuant to this statutory authority, the Department of corrections has promulgated regulations codified at 37 Pa.Code 594-1, et seq. It i. well-settled that "participation in work-release and pre-release programs is a special privilege granted for satisfactory behavior in prison." Lawson v. Com.. DeDt. of Corrections, 114 Pa.Comwlth.573, 539 A.2d 69, 71 (1988); (citina Robson v. Beister, 53 Pa. Comwlth.Ct.587, 420 A.2d 9 (1980) and 37 Pa. Code 594.3(a) (10) which provides in part that an "inmate's privilege to participate in pre-release programs may be suspended or revoked for administrative or disciplinary reasons.") 9. Lawson is controlling in this case. There, a urine sample was taken from the inmate for routine drug screening which was positive for the presence of marijuana. As a result, a misconduct was issued to Lawson and following a hearing, he Z By virtue of amendments to Section-901-B of the Administrative Code of 1929, the Bureau of Corrections in now the Department of corrections. 71 P.S.S310-1 4 " was found guilty of the misconduct charge and his "pre-release status was revoked." 539 A.2d at 70. In Lawson, the Court held that the petitioner's petition for review filed in the Commonwealth Court was not "an adjudication subject to our appellate review because it does not implicate any rights or privileges not limited by Department regulations." 539 A.2d at 71. The Court further held that the Petitioner's petition for review did not state a cause of action within the Court's original jurisdiction. Lawson had claimed that his pre-release status was revoked without due process of law because he was not pe~itted to confront or cross-examine anyone with respect to the lab report upon which the Department relied. The Court responded: It is clear, however, that one has no constitutional right to either participate in a pre-release program, or to the confrontation and cross-examination of witnesses in prison disciplinary proceedings. Lawson, supra, 539 A.2d at 72; citina Robson. supra, and Wolff v. McDonell, 418 U.S. 549, 94 S.ct. 12 2963, 41 L.Ed 2d 935 (1974). 10. The United states District Court for The Eastern District of Pennsylvania has also ruled that there is no protected interest or right to remain at a specific place. In Lott v. Arrovo, 785 F supp. 508 (E.D.Pa. 1991), the plaintiff/inmate was on pre-release status at a group home and while there his urine was positive for the presence of cocaine which resulted in a revocation of pre-release status and transfer back to SCI-Graterford. Although the misconduct was subsequently dismissed by the 5 institutional hearing examiner, because the inmate was not timely served with the misconduct notice, the inmate was not returned to the group house. He filed suit, claiming that his due process rights were violated by the decision to transfer him from the group home to SCI-Graterford. The Court granted the Defendants' Motion for Summary Judgment on the basis that the Plaintiff had no legally protected interest and therefore no cause of action. For this proposition the Court cited Montanve v. Havmes 427 U.S. 236, 96 S.ct. 2543, 49 L.Ed. 2d 466 (1976) and Hewitt v. Helms, 459 U.S.460, 103 S.Ct.864, 74 L.Ed.2d 675 (1983). "As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the constitution, the Due Process Clause does not in itself subject an inmate's treatment by authorities to judicial oversight." l&ll, 785 F.Supp. at 509; citina Montanve, 427 U.S. at 242, 96 S.ct. at 2547. 11. It is clear that under Pennsylvania law, inmates have no right to incarceration at a particular place. Under section 506 of the Administrative Code of 1929, 71P.S. 5186, the Commissioner of the Department of Corrections has the power to "prescribe rules and regulations, not inconsistent with law, for the government of their respective departments...." Pursuant to this statutory authority, the Department of Corrections has promulgated regulations at section 93 of Title 37 of the Pa. Code with respect to the incarceration of inmates. section 93.11.(a) provides that "No inmate shall have a right to be housed in a 6 particular institution or in a particular area within an institution." Furthermore, under Pennsylvania law, "a prisoner has no constitutionally protected liberty interest in the expectation of being released from confinement prior to the expiration of the maximum term of the imposed sentence." Reider v. Com.PA.BD. of Probation and Parole, 100 Pa. Comwlth. 333, 514 A.2d 967, 971 (1986). In addition, a "parole eligibility date, usually set at the expiration of the prisoner's minimum sentence, does not vest any right to a grant of parole upon reaching that date." Moreover, there is no entitlement to participation in pre-release programs or parole even if the statutory minimum criteria have been met by the inmate. Reider v. Com..Bureau of Correction, 93 Pa. Comwlth. 326, 502 A.2d 272, 275 (1986). WHIRBWORB, Respondents respectfully submit that there is no legal basis upon which to sustain any requested action on behalf of Petitioner and therefore his Motion for Production of Urine and for Mass Spectrometry Testing should be denied and dismissed. Respectfully submitted, s~~n6~ Assistant Counsel ~ Attorney I. D. No. 51797 Answer filed on behalf of all Respondents PA Department of Corrections 2520 Lisburn Road, P.O. Box 598 camp Hill, PA 17001-0598 (717) 975-4864 DATE: December 15, 1995 7 CERTIFICATE AND TRANSMITTAL OF RECORD UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (c) To the Prothonotary of the Appellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PENNSYLVANIA THE UNDERSIGNED, Prothonotary of the Co~rt of Common Pleas of Cumberland County. the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings. if any, and the docket entries in the following matter: Case No. 95-6733 Civil Term: No. 1954 C.D. 1996 MICHAEL CONWAY, aka AMIN All BEY g:n ;r :r.:~ fj..) PENNSYLVANIA DEPARTMENT OF CORRECTIONS, ~ ;>t. ,',' c::> ;: :..,') MARTIN HORN, COMMISSIONER u,...,..,C. ~ ....'1....'.. ~ '--'.r "" ;; ~e .r;: The documents comprising the record have be~ n~biied from No. 1 to No. 99 ,and attached hereto as ExhOOt h. is a list of the documents correspondingly numbered and ide~~ifi~ with reasonable definiteness, including with respect to each document, the number of pages comprising the document. VS. The date on which the record has been transmitted to the appellate court is Julv 29. 1996 (Seal of Court) o(~f. W~b~y Prothonotary I An additional copy of this certificate is enc~ose~. '~lease sign and date copy, thereby acknowledging receipt of this,'record. "I" - t... ' --;1 (i' :., '.-'J 'I~ ,_.\ - 'f') ',it RECORD RECEIVED: Date: \ , '-1 (signature & tiblc):< CERTIFICATE AND TRANSMITTAL OF RECORD UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (cl To the Prothonotary of the Appellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PENNSYLVANIA THE UNDERSIGNED, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Case No. 95-6733 civil Term: No. 1954 C.D. 1996 MICHAEL CONWAY, aka AMIN All BEY VS. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, MARTIN HORN, COMMISSIONER The documents comprising the record have been numbered from No. 1 to No. 99 ,and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the appellate court is JulY 29, 1996 (Seal of Court) o(~f. w~t,,~ Prothonotary / An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. RECORD RECEIVED: Date: (signature & title) ,- .. . J J ~ >. ..: I ~. c .: ~ " J ~ 0 Q U 2: J J i .... ~ .ac . ~ Q l::l ... ~ ! ~ j ac I ~ Q . E loll J Ii: '" > i - ] .~ . ..; llo u:: ~ ~ ~ :E 1! .... loll J j ;0( It loll ] E .E E .. ~ d d 0 .. ;: ~ 0 ~ 0 it it tl. U Ilol 1'1 ,. I I.. , . lWE 1<<). 1 - 12 14 - 21 22 - 29 31 - 35 36 - 39 40 - 43 44 - 47 Among the Records and Proceedings enrolled in Ihe court or Common Pleas in and ror the county or CuTtlerland No. 1954 C.D. 1996 95-6733 Civi:" in Ihe Commonweallh or Pennsylvania 10 No. Term, 19 is conlained Ihe rollowing: COPY OF Acoearance DOCKET ENTRY MICHAEL r:::cNiIAY, aka AMIN ALl BEY VS. pA DEpAR'lMENT OF roRRECTIONS, MARTIN HORN, CaTmissioner 13 New. 28, 1995. Motion for production of Urine, for Mass Spectrometry Testing and Order of Court, filed. AND tD>l, this 22nd day of November, 1995, upon consideration of the attached Motion for production of Urine, for Mass Spectrometry Testing, a RULE is hereby issued upon the Respondents to show cause why the relief re- quested sll:Juld not be granted. RULE RE'lURNABLE within 20 days of service. By the Court, J. Wesley Oler, Jr., J. New. 28, 1995, Order of Court, filed. In Re: Motion for production of Urine, for Mass Spectrometry Testing AND tD>l, this 22nd day of November, 1995, Petitioner is granted leave to proceed in this matter in Forma Pauperis. By the Court, J. Wesley Oler, Jr., J. Dec. 18, 1995, Resp:>ndents' Answer to Rule to Show Cause Order Dated Novmtler 22, 1995, filed. Dec. 29, 1995, Mandamus, and Objections to "Respondents" Answer to Rule to Show Cause Order, filed. Jan. lD, 1996, Order of Court, filed. AND tD>l, this lath day of January, 1996, upon consideration of Petition er's Motion for Production of Urine, for Mass Spectrometry Testing, and of Respondents' Answer to Rule to Show Cause Order Dated NovatiJer 22, 1995, raising serious questions involving subject matter jurisdiction, legal sufficiency of Petitioner's pleading and venue, a hearing/argrnlCnt on the motion, inclming the issues raised in Respondent's answer, is SCHEOOLED for Friday, March 22, 1996, at 1:30 p.m., in Courtroom No.5, CUmberland County Courthouse, Carlisle, Pennsylvania. By the Court, J. Wesley Oler, Jr" J. Jan. lD. 1996, Application to Admit D:Jcumentary Evidence, filed. Jan. 24, 29, 1996. Motion Requesting to Take Deposition and Discovery, and Order of Court, filed. AND tD>l, this 29th day of January, 1996, upon consideration of Peti- tioner's Motion Requesting to take Deposition and Discovery, a RUI.B iu here- by issued upon the Respondents to show cause why the relief reql.loutod uholllcl not be granted. RULE RETURNABLE within 20 days of service. By the Court, J. Wesley Oler, .Jr.. ,I. Feb. 8, 1996, Application to lIdmit D:Jcuncntary Evidence, filed. Feb. 8, 21, 1996, r-ntion for Appointment of Counsel, and Order of Court, fll I. AND tD>l, this 21st day of february, 1996, upon consideriltion of Petitioner's nntion for appointment of counsel, the public defender III APPOINTED to represent the Petitioner. 30 IWE to. 48 - 51 Feb. 20, 1996, Respondents' Response to Rule to Show Cause Order Dated January 29, 1996. filed. 52 - 55 Feb. 22, 1996, Application to Mnit Docuoontary Evidence, filed. 56 - 62 Feb. 22, 1996, El'nergency Request for Special Injunctive Relief, and Order of Court, filed. AND~, this 22nd day of February, 1996, the court being in receipt of the attached Petitioner's pro se "El'nergency Request for Special Injunctive Relief." and the Public Defender having recently been appointed to represent Petitioner, the docuoont is forwarded to the Public Defender Office for such action as it deems appropriate on behalf of Petitioner. By the Court, J. Wesley Oler, Jr.. J. 63 - 72 March 25, 1996, Order of Court, filed. AND~, this 25th day of March, 1996, upon consideration of Respondent Preliminary Objection in the nature of a demurrer to Petitioner's Motion for Production of Urine, for Mass Spectranetry Testing, and following oral argu- ment, the preliminary objection is SUSTAINED and the motion is DISMISSED. See Wilder v. Department of Corrections, Pa. Ccm1lW. , A.2d (No. 304 M.D. 1995)(March 13, 1996)(dismissing inmate's mandamus action who prerelease status was revoked due to allegedly misleading drug test result). By the Court. J. Wesley Oler, Jr., J. 73 - 74 March 27, 1996. Order of Court, filed. AND~, this 22nd day of March, 1996, upon consideration of the Respondents' preliminary objections in the above-capationed matter, and fOllowing oral argument on this date in which the Petitioner was represented by TlnDthy L. Clawges, Esquire, Public Defender, and the Respondents were represented by Shawn P. Kenny, Esquire, the matter is taken under advisement By the Court, J. Wesley Oler, Jr., J. 75 - 81 ~ 11, 1996, Notice of Appeal, filed. Notice is given that Michael Conway aka Amin AU Bey, Petitioner, here- by aRlCals to the Superior Court of Pennsylvania fran the order entered in this matter on the 25th day of March, 1996. This order has been entered in the docket as evidenced by the attached copy of the docket entry. By: Michael Conway, Pro Se 82 - 83 Mary 16, 1996. superior Court of Pennsylvania Notice of Appeal Docketing to No. 376 HOG 1996, filed. 84 - 90 May 21. 1996, Opinion Pursuant to PA RAP 1925, filed. 91 - 94 June 13,19, 1996, Superior Court Order, and Docket, filed. The above-captioned appeal is transferred sua sponte to CamDnwealth Court. 42 Pa. C.S. 762 (a) Per Curiam 95 - 99 July 29, 1996, Commonwealth Court of I'll. Notice of Docketing Appeal to No. 1954 C.D. 1996. filed. - f /'-? r' " , \\.." \ - \ . Pro J1,OIV~ ";rr~ 0 rr,,--<. .1 Co""f of Com/HtJ'" J?'/t'.s .. C4d.13L c-/ fA. //- ,;10 -9 S- 1--- t........ ., .. I: ~~:ts. mAtt.. G<7J1'( of I~,~ 1.1II/' ~epQr+- 111?d. p... ,.e/'w.nl coPY' ).0 ",c. ,,,,'c./o.(dc the. One.. I.~... I;'~ ,.nQr.! vF C004,-J-J f,J./.......... I' j.. l... I I' . [-. . h..' . I, I -x tvi.m ~-f ,;n,l4r Cil~c:~r~11. /I~HC. fl.,.,/, c;.L. CcJ/Y A",J /"~ 4n-r A".. I'ur....../ r,orJ..s. -.f,Lle ;=;,-wnd. c:t... 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'- ,...J '- 1. tl I'::', . 01 .:;,;,p.(/,')r t....,r, r Au-, 1';'1'111 '. I Jlu'" I' ;, ) "'-J,..J -' \. I' (....,.....L ,-1,1, 'r 5- . I;, /' ...3 ,,- 1__ .) I L, J ( ',' .J.'. I,. :.., :. c.'..., I" , i ----I ! D:.:....I... f~,'Ih .1/\0,) :L!' '/t :7 /}.,~, .:, 1'\ ,r, ... ... . ,"~I ~ J.. , J;." ... /. 1'-1'. t }"~..i! .,.))J j , ~ " . . fl.. ,)f.~~,_,--I(~/'>tl'>l'J._ " ,\ I. .."~L'. ..,.:...~ ,..1 ./ h" f' j'"' ,_ l' I I I r,-, '_ .,up',,! i rn,'" ~ '- il '/"1 " t, v, I "F. I hI'''.".., +,,) (.-... -,oO !)." I' L ,..... . , , . ;~'Il. i I I , l v/.?I"YI..;'" ,,}.:. t,J( /1 " . .- -:-> i r,) L' ,-'.. ,-, ., .J '... . tj , . ..! /r,~,,, .~1, ,"- ~. ,.., --.. ,,' J -/.. 1,_ \.' r-_ fl. ;. '.- .' , j I t I ~ ~'4 f'I'", ~ . ; i..:.....' f ~ I , ! I l- I I' ..; f ,). ) I ' ,) "- I i . \ , , \-.. .f 1 I . ,'. ;~/ L,.; I , , ,,\, " , I '. II,' I ,J t... I " ,,'r , r/l,- 1/1_ .: f .; ~ f' ,......,. rl r " I - - , .. I' ! -r- i Ii f?1 , . ,II ( ~LA/j'/' , " "I'{' ." '-" ~J-f r +... , ,,L iI/ I'" , i. ,J :,,_ j"',,. \"U..'f ~ (. . ., J ( ,~,,~, I .., . I j~' (, ;;1.:3 I I' i I IJ',1 C..l'" r,' ~ ,.J . u,L. ---;j/)Y ~. ,Ii'.' .... I' ,'. .. - / ,.;. ,4 ,/ ,.: " ~.' ~.~. , _/~'-l ~.~ ~__~'.j_ ),,'J1! .' I .... ;"'I~( " ~ , J "., .,';'),..;1,'/' I t... vi..,; I J ...l/.y, 'i I 'I : I.~.I... _ .J..~!'J_~.~_._ I . ..' :~J :~ .~ ~., '" /,-1. ~ ,,) ~ ,,1' l. ,~'" I. I IJ/:.I,j " /) ~ ~ ,I " ,"'..v.,"'.i.. I ,vlu ,. 'iN ',! -L. / / 1fI.;.,;..:. ";.'. VI, ii, '_, /;, i/~]'.; )1,/. IJ"'1" - oJ f,- 4 . , /IN '~ ~ '- /,..',/ " I '1 .1 I "i I .' i I '~'./"\ V ! I !II I, . I {"It),~ ' ~.) .., :/ I . ,) - 7.11 I, "II I ~ , , / (_/.,~,/ . j' , I / ._t':"./_I'r!~ . ~ "I. !.'l. ~_ ~_. il , /i"..~ ,", i. ,.I I II \-;1.. I',! , "./i'"' /..l-.J.t, f- I .J , u. " '. ,';- ..... '. l \ ~J. /' i ",,' u I '-.~"U f)' , ," , I "- I' ,. I':. ,""'___ t:.lj. I'rf )/, '"" I ... ~. /' r" I I ,L " l~ , ;I,' " J (f- . ,11. ,,:..j..:. 'j,.' .'..~y"_ '" >.,' , ,,. ) . I i I u I '. I I , , . 6 ~ /'111 ,'..~ !. . ',:.: ..'I'! ~J. ,I .'f ,/ / . " AI..! ..1 I i~rj .i(.1 ..)-..2- , -.-. --.- , '.'..1'.,;,,' ' t....:),'-'- >~ " , <, t I ' -tI'--....- /_/ " ../..:.: J_,,,-,/, II., / " ~ '. tJ J'f If,., J~'. .. J, .I. '-....;;L - / 7- /6 .. '.' 1. H,N. Elsohly and M,A, Elsohly, Poppy seed Ingesdon tmd Opltllu Urlnalysll: A Closer Look, Journal 01 Analydcal Toxicology. Vol 14, 309 (1990). (*) 2, O. Fritschl and Jv.R, Prucon Jr. Morphine I ~''''f In UrlM SubsefJwllllo Poppy Seed Consumpdon, Forensic Science 1111, 21..111 (1985). . . *3. H,N EIsQhly, D,F. Stalfford, A,B. JOMS, M,A. Elsohly, H. Snytkr, IIIId C. Pedersen. (]4j chromalographiclMass Spectromtlric analysis 01 NorphiM tuJd Codeine In Humtlil Urine 01 Poppy Seed Eaters. Journal 01 Forensic 'SclellCU 33(2): 341 (1985). ' 4. B,C. Pettln, Jr., S.M. Dysul, and L, V.S, Hood, Opltllu In poppy suds. Clinical Oatmlslry 33(1),.1251 (1981), S. R.E. Slrutmpler. Excredon 01 codeine and morphlM lollowlng Ingesdon 01 poppy seeds, Journal 01 Analytical Toxicology, Vol, 11,'91 (1981). 6, K. BJIrvtr, J. Jonsson, A, Nilsson, J. Schubtnh, and J.Schubtnh. MorphlM In/*from poppy sled/ODd, Jou17Ul1 PIul"", Plulnnaco134:798 (1982). . .. . ..--..-- ~ -~ , r \ I \ I \ ~ <Y. :1 ~ <1 '2.. ') V ~ ~ -t.; ~ ~~~ " \'), ~ vV) ~~.~ " v 4.. ~ ~ 0 ~ -.Y- ~ ~ ~ ~ \'~ ~ '""' . n.. ..., ~ , " ""- \:;: ~ '~ '~ '''.) ." ~ N ~..,.", \, ,--- " - ....,.tl. , , a: l\. t..:J ~ ~ '~ ~ ,..l ~! I ~ ~~IN ~ i~1 :5 \),,; ... ,t' 100!:f:l- . !'1 iN I "l~i ~ ~ ~ ~ D: :ii. oJ ~ ~ ] ~:o; J;l ;t . ~ - j ,i~ . , - - ": ~ - } - - - ; - - - - - - ~ , , . . . IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY CARLISLE, PENNSYLVANIA Michael Conway,AKA Amin Ali Bey,pettioner Civil Term VS. Pennsylvania Department of corrections,Martin Horn, Comissioner, Respondents No,95-6733 , , -, . , 0\ ) : !1 .. ~ , " -1 \ ,..) I ,0\ ( I ..! Notice of APpeal Notice is given that Michael Conway AKA Amin Ali Bey, pettioner, hereby appeals to the superior Court Of Pennsylvania from the order entered in this matter on the 25th day of March, 1996. This order has been entered in the docket as evidenced by the attached copy of the docket entry, Filed Pro.Se By: M chael conway , #BS-B9l9,smithfield P,O.Box 999,1120 pike ST. Huntingdon, Pa, 16652 ~ MICHAEL CONWAY, a/k/a AMIN ALI BEY, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA I I I I I I I CIVIL ACTION - LAW v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, MARTIN HORN, Commiesioner, Respondents NO. 95-6733 CIVIL TERM AND NOW, ORDER OF COURT this 'l.~1~ day of March, 1996, upon consideration of Reepondente' Preliminary Objection in the nature of a demurrer to Petitioner's Motion for Production of Urine, for Mass Spectrometry Testing, and fOllowing oral argument, I the preliminary objection is SUSTAINED and the motion is DISMISSED. See Wilder v. Department of Corrections, ___ Pa. Commw. ___, ___ A.2d ___ (NO. 304 M.D. 1995) (March 13, 1996) (dismissing inmate's mandamus action where prerelease status was revoked due to allegedly misleading drug test result) .1 BY THE COURT, Shawn P. Kenny, Esq. A.sistant Counsel Department of Corrections P.O. Box 598 Camp Hill, PA 17001-0598 Attorney for Respondents At Petitioner test which oral argument, Petitioner's counsel advised that was no longer representing that he would pay for the he was requesting. 1 A copy of the opinion in Wilder is attached hereto. Because of ou~ disposition of this case, it is unnecessary IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY CARLISLE,PENNSYVANLIA Michael Conway,AKA Amin Ali Bey,Petitioner VS. Civil Term No,95-6733 Pennsylvania Department of Corrections,Martih Horn, Commissioner, Repondents Verification of Continuation of In Forma Pauperis Status Pursuant to Rule 55l,(a) of the pennSrlyania Rule of Appellate Procedure, Michael Conway. Appel ate states under the penalties provided in 18 Pa, C.S. 4904 that. 1.This court on 22nd day of November, 1995 entered an order granting leave to proceed informa pauperis in this matter, 2.There has been no substantial change in my financial condition since November 22,1995;and 3.1 am unable to pay the fees and on appeal, WHEREFORE, the prothonotury of common pleas court Cumberland County is requested to continue the In forma pauperis status of appelant on appeal. 't:Z ~ ~,/t, C ae onway,:I.o."y #BS-8919,Petitio~r SCI-Smithfield P.O. Box 999,1120 Pike ST. Huntingdon, Pa.16652 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY CARLISLE,PENNSYVANIA Michael conway,AKA Amin Ali Bey,Petitioner VS. civil Term No.95-6733 pennsylvania Department of corrections,Martin Horn, commissioner. Repondents Proof Of Srevice I hereby certify that I am this day serving the foregoing notice of appeal upon the persons and in the manner indicated below, which service satisfies the requirements of Pa. Rules of App. p, 122. Honorable Judge: J, wesley Oler Jr, Lawrenec Welker. Prothonotary Court Stenographer, Shawn p, Kenny,Esq, Assitant Counsel f'or Repondents P.O. Box 598 camp Hill, Pa, 17001-598 ''/ 1{~LIJ 0W/~'K 6'.}'1711 (/'1"" tltl ,!,y/ ~I I' . t'"Jr,r: " ~ '~~~rf . . . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Michael Conway, aka Amin Ali Bey Petitioner . . . . vs. : I Civil NOI 95-6733 . . Pennsylvania Department of Corrections Martin Horn, Commissioner Respondents I . . MOTION REQUESTING TO TAKE DEPOSITION AND DISCOVERY AND NOW comes Petitioner Michael conway, aka Amin Ali Bey, P~o se, who requests to take Depositions and Discov~ry, avers the following respectfullY: 1. Petitioner was granted leave in the above case to proceed Informa Pauperis by Court Order dated the 22nd day of November 1995. 2. Corning Clinical Laboratories'is located at 900 Business Center Drive, Horsham, Pennsylvania 19044. 3. Doctor Jeff Cades, and two technicians named Brenda and Michael whose last names are unknown are employed by Corning Clinical Labor- atories. 4. Petitioner requests to take Depositions concerninq the validity of the test results through written interrogatories Or in person as the Court deems just. 5. Petitioner believes that Doctor Jeff Cades, Brenda and Michael at the Corning Clinical Laboratories expert testimony will be crucial to the resolution of the complex technical issues in this case. 6. Petitioner commenced this Action by complaint against Respondents who employed the Corning Clinical Laboratories in Harsham, Pa. .. , " 7. petitioner has spoken to the Corning Clinical Laboratories and was informed prior to the complaint against the Respondents, that a second test of the same type will only confirm that the proper technical procedures were followed in performing the test. That it will not identify for specifity of Metabolite. WHEREF~RE, Petitioner, Michael Conway, aka Amin AU Bey, requests that this Court issue an Order granting the Petitioner to take the Deposition of Respondents laboratory technicians concerning the val- idity of the test results either through Respondents present Counsel or by way of issuing an Order to the Corning Clinical Laboratories: Doctor Jeff Cades, Michael and Brenda who are employed at the Laboratory located at 900 Business Drive, Harsham, Pennsylvania 19044, Telephone Number(s) 1-800-825-7320 or 1-215-957-9300, and to compel Respondents to furnish Petitioner with copies and/or reports pertaining to said action pending. Respoctfully submitted flJdI d~, ~\ Michael Conway ~ Petitioner, Pro se. -2- I 1_.,.----,..,.- MICBAEL CONWAY, MIN ALl BEY, Petitioner a/k/a , I ~').r :r ....r:-....---- -.-..,---. --.--- ,..... I IN T8~ COURT or COMMON PLEAS or I CUMBERLAND COUNTY, PENNSYLVANIA .. .. , '. f . I I . _,' J I I CIVIL ACTION - LAW v. ,_ t "'_".'" I I I I NO. 95-6733 CIVIL TERM PIKtlSYLVANIA DEPARTMENT OF CORRECTIONS, MARTIN HORN, colllllli..ioner, Re.pondent. IN RBI OPINION PURSUANT TO PA, R.A.P. 1925 Oler, J" May 21, 1996, In thb action in the nature of ~ ...nduu. proceeding' an inmate ot a .tate correctional in.titution ha. appealed pru .e froll an order of thi. court .u.taining Re.pondent.' prelillinary objection. and di.lli..ing the action. Thi' opinion in .upport of the court'. order i. written pur.uant to penn.ylvania Rule of Appellate procedure 1925(a). PROCEDURAL HISTORYI STATEMENT OP PACTS Petitioner 18 Michael Conway, al.o known a. AllIin Ali Bey. At the tille of the initiation of thi. action he wa. an inmate at the State Correctional In.titution at Cup Bill in Cumberland County, penn.ylvania, he i. pre.ently an inmate at the State Correctional In.titutio~ at slIithfield' in .Buntingdon county. Re.pondent. are t.... ",,"""y'''''''1. ~ n",t'. ". :tI,.,,~. of ("('r''I!~J,OJ\'' t.' ....n... r.()lll1IIl..llinnfOr MIlrtin ..: ...' . . , Born. On November 22, 1995, petitioner'fiied with the Cumberland County Prothonotary..a docWllent entitled "Motion for Production of Urine, for Ma.. spectrolletry Te.ting," The gi.t of the lIotion wa. , The document filed by Petitioner to in.titute the action wa. entitled "Motion for Production of Urine, for Ma.. Spectrolletry Te.ting." The relief reque.ted i. di.cu..ed in the text infra. _....:no ~ -...- -:- --=._.~...............v .. 'II ," ~.. NO, 95-6733 CIVIL TBRM that Petitioner had been in a prereleaae program at a halfway houae in Harriaburg, that a random teat of hia urine produced a poaitive r.ault for op~atea, that aa a reault of the teat he waa removed from the halfway houae and returned to a atate correctional inatitution, that a parole releaae which he had anticipated waa n~t at thia time being recommended, and that the teat reault muathave been cauaed by hie conaumption of "a ateady quantity" of aalad rlreftaing oontainin~ p"rry ae~~~. In aupport of the latter propoaition, Petitioner attached an excerpt from a newepaper or magazine article, reading aa followa, Watch those poppy seeds Aa drug acreening ia bltcoming mora common in the workplace, it'a amazing what can akew the reaulta, In fact, you might want to akip that poppy aaed bagel if a drug teat ie on your agenda. Dr. Paul Oraulak, prof.aaor of paychiatry at the Univeraity of Texaa Southweatern' Medical Center in Dallaa, aaya that even the amall amount of opium in one bagel topped ,with poppy aeeda aight not alter your mood, but it can cauae a poaitive reault in aome routine drug-acreening tee~a, The nirit.i,on cont:~ndfJdth~t; thn :-:!o~~FI:'lte: ';' '! !i~':'j.C;:.. .r~.,::':':'l;I.t:..4 a violation of Petition~r'a due proceaa righta. It aaaerted that he "ha[d] been dept:ived of his liberty baaed on the misleading reaulta Qf a ~cientific procedure." The motion included an offer by Petitioner to bear. the expenae of a more aophisticated teet of hia urine, Relief requeeted by the 2 as ~ " _ -'::,:'L .. ~: : ,- - - ~ : - - NO. 95-6733 CIVIL TlRM Petitioner wa. an order directing the Department to rete.t the urine and to r.turn him to hi. p~eviou. .tatu., The motion of Petitioner al.o includ.d a reque.t that he be permitted to proceed in forma pauperi.. The court granted thi. reque.t , J A number of preliminary objection. to Petitioner'. motion were filed by Re.pondente on December 18, 1995, The.e included an objection ba.ed upon the ab.ence of a proper method of commencing the action' and a demurrer, In re.pon.e to an additional reque.t by Petitioner for free legal repre.entation, the court appointed coun.el to repre.ent him,. Argument on Re.pondent.' preliminary objection. wa. heard by thh court on March 22, 1996. At the arlJWllent, Petitioner'. coun..l indicated that hi. client wa. no longer repre.enting that he would bear the co.t of a new te.t.' Follo~ing the argument, the court i..uedthe order pre.ently on appeall AND NOW, thie 25th day of Marc~, 1996, upon con.ideration of Re.pondent.' preliltinary Objection in the. nature of a demurrer to petitioner~. Motion f~ ~roduction of U~in., .10 .\ ." . 01 . _0 I ,.. .' . . . J Order of Court, November 22, 1995. . J See Pa. R.C.P. 1007 (civil a~tion to be commenced by filing of praecipe for writ of .UD\DIon. or compl,int), ' I . Order of Court, February 21, 1996, , See Order of Court, March 25, 1996 (note 1). 3 . , NO. 95-6733 CIVIL TERM -0_- .... " for Ma.. Sp.ctrometry Te.ting, .nd following or.l .rgum.nt, the pr.limin.ry objection h SUSTAINED .nd the motion h DISMISSED. S.. ~ild.r v. Department ot Corr.ction., ___ P.. COIlllllW. _, (673) A.2d (30) (No, 304 M.D, 1995) (March 13, 1996) (dhmhdng ifllllllt.'. IIIllndUlu. .ction where prerel...e .t.tu. w.. revok.d due to .llegedly mi.leading drug te.t r..ult) " r DISCUSSION In ~ild.r v. Department ot Correction., ___ P.. Commw.___, 673 A,2d 30 (1996), the Commonw..lth Court .ddr....d . p.tition of .n ifllllllt. .t . .t.t. correction.l in.titution which .....nti.lly [.ought) . writ of IIIllndamu. to r.quir. the D.p.rtm.nt [of Corr.ction.) to r.in.tat. him to hi. pr.-r.l.... .t.tu. [.t . h.lf- w.y hou.e]..' In ~ild.r, . r.voc.tion of the petition.r'. pr.r.l.... .t.tu., .nd hi. r.turn to . .t.t. pri.on'wh.r. p.rol. wa. no long.r b.ing r.comm.nd.d, h.d b..n prompt.d by . f.h. po.itive urine te.t for coc.ine - . r..ult of hi. u.. of m.dic.tion. ' In .u.t.ining . d.murrer filed by the Dep.rtm.nt of Correction. to the inmate'. petition, the ~ild.r Court fir.t noted ' , th.t · [I'\)~nd)\';l"" i... a:: .~'.....:itQr.d~_I3.J:i ...l...~..'l.i i:H..i:I\)o,ih ..ilcil.. COI,h:,t' , , , Order of Court, March 25, 1996 (footnote. omitt.d). A copy-of the Commonwealth 'Court4. 'Opinion in ~ild.r wa. attach.d to the ord.r, 1 ~ilder v. Department ot Correction., ___ Pa. COIlllllW. ___, 673 A,2d 30, 31 (1996). 4 .......-. --..~..._-- '7 ....-- - -,.,,- - . -_. '.... . -_. NO, 95-6733 CIVIL TBRM . , l i " t ! I , of cOlllpetent jur18diction compeI. a public official, bo.rd or municipality to p.rform a mandatory duty 'or miniet.rial .ct wh.r. (1) the petitioner h.e a l.qal riqht to .nforce the performance of that act, (2) the d.f.ndant h.. . corre.pondinq duty to perform the act, and (3) there i. no oth.r ad.quat. or appropriate r.medy..' Petition.r cont.nd. that h. had a lib.rty intere.t in hi. pre-rel.a.e .tatu., includinq the [halfway hou..], plac.ment, and th.t the Dep.rtment'e r.voc.tion of, hi. pre-rel.a.. ,lItllt."" "j,"'lat."ri hi-II ~I\" In:OI"J..1l ri'J!.t:,,. In ord.r to aetermin. whether a con.titutional violation ha. occurred, a determination mu.t. initially b. made that a protect.d lib.rty intere.t exi.t. and, if .0, wh.t proc... i. du." Prot.ct.d lib.rty inter..te may b. cr..ted by .ither the Du. proc... Cl.us. ite.lf or by .tat. law.' Aft.r .n.lyzinq a numb.r of c.... in this ar.a, the Co_onwealth Court in Wild.r h.ld th.t .th. Du. Proc... Clau.. do.. , ,not cr. at. a lib.rty int.r..t in a pri.on.r'. participation in a pre-r.l...e':proqrlUll. .10 The 'Court furth.r h.ld,th.t "[t]her. i. .1.0 no .t.te-cr..t.d,lib.rty int.r..t in the pr.-r.l.... .tatu. th.t i. protected by the Du. proc... Clau.. b.c.u.. the r.vocation 18 not the tyPe-: of 'd.prlvat:ton of the fre.dOlft frQD\ r..traint . . . , r.quir.d ,.,..11 , . Id, .t ___, 673 A.2d .t 31-32, rd. .t ___-,. -673 A.2d..t -32-(cit.tion. 'omitt.d). Id. . 10 11 Id, 5 It ..---- .... -- --, .....~... . '" -. ... , NO. 95-6733 CIVIL TERM I : "Because [the p)etitioner failed to .stabliBh a liberty inter.st with due proc.ss protection,. the Commonwealth Court concluded in ~ild.r, "h. ha[d) no cl.ar legal right to relief and mandamus [was) unavailable.. U Accordingly, . the [Department of Corr.ctions') pr.liminary objection [was) sustain.d .... .n Th. .ll.g.d facts of the pr.sent cas., .nd the r.li~f .ought by P.titioner, are so .imilar to tho.e addr.ssed by the .,. .- Commonw.al th Court ".!:n" 'Commonw.al th v, ~ilder, H that a ruling in f.vor of P.t.itioner'would, in'thi. cop,rt',. view, h.v. repr...nt.d an unwarranted diBregard otapplicable authority. For th..e rea.on., the order dis~issing Petitioner's motion wa. entered. u Id. at ___, 673 A.2d at 33, n Id. 10 _',pa. Commw, _, 673 A.2d 30 (1996), .ee al.o L.....on v. Commonwealth of Pennsylvania, Department of Corrections, 114 Pa, . COI11lllW. 573, 539 A.2d 69 (1988), Lott v. Arroyo, 785 P. Supp. 508 (E.D. Pa. 1991). ThiB court h.. not, att.mpted, to con.tru. Petition.r'., motion as a, habeas' corpus. petition. Be h.. not '.llel!tl'lrl that Cumb,rl1.'nd ~"uni~~'. '~aL f'h.., lI:uu,-t:" :If Ill;:: "~II'~<l.i~'7,,' .\L~ ........l.!J.~~ ':.e n.c.'...ry for . .ch.llenge in thiB' court to the legality of hiB continued incarc.ration, under penn.ylvania Rule' of Crimin.l Proc.dure 1701(a). Nor ha. he ch.lleng.d the conditions of hi. confin.ment.s th.t t.rm i. commonlyund.rstood und.r Rul. 170l(b). Bec.un"of '~h. ''Court'. "diBpo.ition 'of thie 'c..., it i. unn.c....ry to di.cus. oth.r pr.limin.ry obj.ction. r.iB.d by R..pond.nts. Thi. court h.s .lso not und.rt.k.n .ua .pont. . r.vi.w of whether Petitioner's .ction might more .ppropriat.ly h.v. b..n filed .s . petition for r.view or other r.quest for relief in the Commonwe.lth Court. 6 81 RE: CONWAY v. PA DEPT. OF CORRECTIONS et al. lower court No: 95-6733 Appealed Date: March 25, 1996 county: cumberland COllllDonwealth Docket .: 1954 C.D. 1996 IN THE COMMONWEALTH COURT OF PENNSYLVANIA CERTIFICATE OF CONTENTS OF REMANDED RECORD AND NOTICE OF REMAND UNDER PENNSYLVANIA RULES OF APPELLATE PROCEDURE 2571 AND 2572(e) THE UNDERSIGNED, prothonotary or Deputy prothonotary of the commonwealth Court of pennsylvania, the said court being a court of record, does hereby certify that annexed to the original hereof is the whole and entire record as remanded from the Commonwealth court, in compliance with pennsylvania Rules of Appellate procedure 2571 and 2572(e). An additional copy of this certificate is enclosed with the original hereof and the clerk or prothonotary of the lower court or the head, chairman, deputy or secretary of the government unit is hereby directed to acknowledge receipt of the remanded record by executing euch copy at the place indicated and by returning the same IMMEDIATeLY. ~~ Deputy prot 0;:;"0 ary It PLEASE SIGN AND RE'l'URN IMMEDIATELY TO: OFFICE OF THE CHIEF CLERK COMMONWEALTH COURT OF PENNSYLVANIA P.O. BOX 11730, SOUTH OFFICE BPILDING HARRISBURG, PA 17108 (717)783-3215 OR 783-7058 (Seal of court) Record Received: " -, '-~ I -\1 \ - I . -rt I " -','1.1' ;() ," -'l ,: '} , ,Id .. ) I '.) . &~~ fl. ~4- s1~n.a ure riJ~ ~ Reason for Affirmed Remand Date record Remanded January 30, 1997 \ t \~\2 . . IN THE COMMONWEALTH COURT OF PENNSYLVANIA MICHAEL CONWAY, AKA AMIN ALl BEY, Appellant . . v. No. 1954 C.D. 1996 PENNSYLVANIA DEPARTMENT OF CORRECTIONS, MARTIN HORN, COIOIISSIONER oaDBa AND NOW, this ...!!!!.... day of Nav8llbor , 1996, the order of the Court of Common Pleas of Cumberland County, No. 95-6733, dated March 25, 1996, is hereby affirmed. CHARLES v. '--_.~-:-:~.;\"~7~-'''-'--- .-.-- .-.--..." .--. -- .--..--- alkla I IN TR~ COURT OF COMMON PLEAS OF ..I., CUMBERLAND COUNTY, PENNSYLVANIA ",' . I I ,_' ') I I I.. I I I I I CIVIL ACTION - LAW , MICHAEL CONWAY, AMIN ALl BEY, Petitioner PBNNSYLVANIA DEPARTMENT OF CORRECTIONS, MARTIN HORN, CODlD\ieeioner, Reepondente NO. 95-6733 CIVIL TERM IN REI OPINION PURSUANT TO PA, R.A.P. 1925 Oler, J., May 21, 1996, In thle action in the nature of a III&ndamue proceeding1 an inmate of a etate correctional inetitution hae appealed pro ee from an order of thie court euetaining Reepondente' preliminary objectione and diemieeing the action. Thi. opinion in eupport of the court'e order ie written pureuant to Penneylvania Rule of Appellate Procedure 1925(a). PROCEDURAL HISTORY' STATEMENT OF FACTS Petitioner ie Michael Conway, aleo known ae Amin Ali Bey. At the time of the initiation of thie action he wae an inmate at the State Correctional Inetitution at Camp Hill in Cumberland County, Penneylvania, he ie preeently an inmate at the State Correctional Inetitution at Smithfield in Huntingdon County. Reepondente are the Penneylvania Department of Corrections, and COl\llllieeioner Martin Horn. On November 22, 1995, Petitioner filed with the Cumberland County Prothonotary.,a document entitled "Motion for Production of Urine, for Maee Spectrometry Teeting." The giet of the motion wae I The document filed by Petitioner to inetitute the action wae entitled "Motion for Production of Urine, for Maee spectrometry Testing." The relief requeeted ie diecuesed in the text infra. fll ~-. .~..", .'- -"...'-~" . .. ~'. --....-..-. ---.... .'-- ~:~. NO, 95-6733 CIVIL TERM . , that Petitioner had been in a prerelease program at a halfway house in Harrisburg, that a random test of his urine produced a positive result for opiates, that as a result of the test he was removed from the halfway house and returned to a state correctional institution, that a parole release which he had anticipated was not at this time being recommended, and that the test result must have been caused by his consumption of "a steady quantity" of salad dressing containing poppy seeds. In support of the latter proposition, Petitioner attached an excerpt from a newspaper or magazine article, reading as follows, Watch those poppy seeds As drug screening is becoming more common in the workplace, it's amazing what can skew the results. In fact, you might want to skip that poppy seed bagel if a drug test is on your agenda. Dr. Paul Orsulak, professor of psychiatry at the University of Texas Southwestern Medical Center in Dallas, says that even the small amount of opium in one bagel topped with poppy seeds might not alter your mood, but it can cause a positive result in some routine drug-screening tests. The motion contended that the Department's actions constituted a violation of Petitioner's due process rights. It asserted that he "ha[d] been deprived of his liberty based on the mideading results of a ~cisntific ,procedure." The motion included an offer by Petitioner to bear the expense of a more sophisticated test of his urine. Relief requested by the 2 ~ .. ., - --;--~jW'~ _.. - -.. - _..._-~.. -. NO, 95-6733 CIVIL TERM I t t I t i Petitioner was an order directing the Department to retest the urine and to return him to his previous status. The motion of Petitioner also included a request that he be permitted to proceed in forma pauperis. The court granted this request.' A number of preliminary objections to Petitioner's motion were filed by Respondents on December 18, 1995. These included an objection based upon the absence of a proper method of commencing the action' and a demurrer. In response to an additional request by Petitioner for free legal representation, the court appointed counsel to represent him,. Argument on Respondents' preliminary objections was heard by thb court on March 22, 1996. At the argument, Petitioner's counsel indicated that his client was no longer representing that he would bear the cost of a new test,' Following the argument, the court issued the order preeently on appeall AND NOW, this 25th day of March, 1996, upon consideration of Respondents' Preliminary Objection in the, nature of a demurrer to Petitioner's Motion for Production of Urine, Order of Court, November 22, 1995. . See Pa. R,C.P. 1007 (civil aotion to be commsnced by filing of praecipe for writ of summons or complaint), . I Order of Court, February 21, 1996. See Order of Court, March 25, 1996 (note 1), 3 . , . . " , I' ! NO, 95-6733 CIVIL TBRM for Mass Spectrometry Testing, and following oral argum.,nt, the preliminary objection is SUSTAINBD and the motion is DISMISSBD, See Wilder v. Department of Corrections, ___ Pa. Commw. ____, [673] A.2d [30] (No, 304 M.D. 1995) (March 13, 1996) (diBmiuing inmate's mandamus action where prerelease status was revoked due to allegedly misleading drug test result) .' DISCUSSION In Wilder v. Department of Corrections, Pa, Commw.___, 673 A.2d 30 (1996), the Commonwealth Court addressed a petition of an inmate at a state correctional institution which "essentially [sought] a writ of mandamus to require the Department [of Corrections] to reinstate him to his pre-release status [at a half- way house]."7 In Wilder, a revocation of the petitioner'S prerelease status, and his return to a state prison where parole was no longer being recommended, had been prompted by a false positive urine test for cocaine - a result of his use of medication. In sustaining a demurrer filed by the Department of Corrections to the inmate's p~tition, the Wilder Court first noted that "[m]andamus is an extraordinary remedy through which a court . Order of Court, March 25, 1996 (footnotes omitted), A copy--of the Commonwealth, Court 4 s opinion in Wilder was attached to the order. 7 Wilder v. Department of Corrections, ____ Pa. Commw. ____, 673 A.2d 30, 31 (1996). 4 ~~~:~-.4 -. .- .. ...:..., ""_W__ ....-......-...- - ~.-----_... ---_. -.. " - - -- - ... ..... , _0- .... "'-""-"'-" NO. 95-6733 CIVIL TERM of competent juri.diction compela . public offici.l, board or municip.lity to perform . mandatory duty 'or mini.teri.l .ct where (1) the petitioner haa a legal right to enforce the performance of that .ct, (2) the defendant haa a correaponding duty to perform the act, and (3) there i. no other adequate or .ppropri.te remedy."' Petition.r cont.nd. th.t he h.d . lib.rty intere.t in hi. pre-rele..e .t.tu., including the [h.lfw.y hou.e) pl.cement, .nd th.t the Dep.rtment'. revoc.tion of hi. pre-rele..e .t.tu. viol.ted hi. due proce.. right., In order to determine wheth.r a con.titution.l viol.tion ha. occurr.d, . d.t.rmin.tion mu.t initially b. mad. th.t a prot.ct.d lib.rty int.r..t .xi.t. and, if .0, what proce.. i. du., Prot.cted lib.rty int.r..t. may be created by eith.r the Due proce.. Clau.. it.elf or by .tate law.' Aft.r analyzing a number of ca.e. in thi. area, the COllllllOnw.a1th Court in Wild.r h.ld that "the Due Proce.. Clau.e do.. not create a lib.rty intere.t in . pri.oner'. participation in . pr.-r.l.a..' program. "10 The Court further held that "[t)here i. al.o no .tate-cre.ted liberty int.re.t in the pr.-r.l.... .t.tu. th.t i. protect.d by the Due proce.a Clau.e bec.uae the revocation ie not the type of deprivation of the fr.edom from r..tr.int requir.d ...."n . Id. at ___, 673 A,2d .t 31-32. Id. .t ___; ii73 A.2d at --32-(cit.tion. 'omitt.d). Id. Id. . 10 n 5 rt -..._~ --.....-.. . ... ..- --... . ... .. .. NO. 95-6733 CIVIL TERM "Because [the p]etitioner failed to establish a liberty interest with due process protection, II the Commonwealth Court concluded in Wilder, "he ha[d] no clear legal right to relief and mandamus [was] unavailable."1> Accordingly, lithe [Department of Corrections'] preliminary objection [was] sustained II I I "U The alleged facts of the present case, and the relief sought by Petitioner, are so similar to those addressed by the COlllDlonwealth Court in Commonwealth v, Wilder, U that a ruling in favor of Petitioner would, in this court's view, have represented an unwarranted disregard of applicable authority, For these reasons, the order dismissing Petitioner's motion was entered. u Id. at ___, 673 A.2d at 33. Id. u U _'Pa. Commw. _, 673 A.2d 30 (199611 see also Lawson v, Commonwealth of Pennsylvania, Department of Corrections, 114 Pa. 'Commw. 573, 539 A,2d 69 (198811 Lott v, Arroyo, 785 F. Supp. 508 (B.D. Pa. 1991), This court has not, attempted to construe Petitioner's motion as a habeas corpus petition. He has not alleged that Cumberland County was the sourcs of his sentence, as would be necessary for a challenge in this court to the legality of his continued incarceration, under Pennsylvania Rule of Criminal Procedure 1701(al. Nor has he challenged the conditions of his confinement as that term is commonly understood under Rule 1701 (bl. Because' of the 'court's 'disposition of this case, it is unnecessary to discuss other preliminary objections raised by Respondents. This court has also not undertaken sua sponte a review of whether Petitioner's action might more appropriately have been filed as a petition for review or other request for relief in the Commonwealth Court. 6 81 W Jt'/f't-beL__~!, L9- 9~ !ftJx/ Tag/oR.. rn El{ cL lJrrrtcJ fA Blli ProMouo!al?/ fIolJ. J. Lvts7-f1j {)jet 9t. H, chtJe/ &nllJt( /f .JAt1wrJ I. hen/J r . , . . ~ ~ CERTU'ICATE '!IND 'rRANSMITTAI. O~' RECORD UNDER PENNSYI.vANIA RUI.E Of' APPEI.I.ATE PROCEDURE 1931 (c) To the Prothonotary of the Appellate Court to which the within matter has been appealed: COMMONWEALTH COURT OF PENNSYLVANIA THE UNDERSIGNED, Prothonotary of the Court of Common Pleas of cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true ~nd correct copy of the whole and entire record, including an opinion of the court as required by pA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Case No. 95-6733 Civil Term: No. 1954 C.D. 1996 MICHAEL CONWAY, aka ""IN All BEY VS. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, MARTIN HORN, COMMISSIONER The documents comprising the record have been numbered from No. 1 to No. 99 ,and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with rea30nable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transm1tted to the appellate court is Julv 29 , 1996 (Seal of Court) Q(tU{f-1.l!M-c.e-l. lth~ttl~1--' Prothonotary I An additional copy of this certificate is enclosed. please sign and date copy, ther.eby acknowledging receipt of this record. RECORD RECEI'<~R~', I ,I/N?d .!1t;lC'j , ..All rlJ" ,l::l ,:J.;!'Ull' ""Ion _. t' ."1 - ". oJ ." .n.!JII 96. "'1 tiS h 01: 1nr Date: (signature & title) ~ ~ Commonwealth or Pennsylvunia CounlY or Cumberland \ ss: I, Lawrence E. Welker ,Prolhonolary or Ihe Courl or Common Pleas in and ror said County, do hereby eerliry Ihal Ihe rnregoing is a rull, Irue and cnrreelcopy orthe whole record olthe euse thercin stated, whercin Michael Conway, aka Amin All Bey Case No. 1954 C.D. 1996 Plainlirr, and pennsvlvania Department of corrections. Martin Horn. cnTITlissioner Defendant _, as the .ame remains or record berore the said Courl al No. 95-6733 or Civil Term. A.D. 19_. have hereunlo set my hand and arn~ed Ihe seal or said Court day or July A, 0.. 19~. ,,{ ~1J-'l.l/L&.. t, )~ jj LA j-'~L'" I Prnthnn'lUuy In TESTIMONY WHEREOF. I Ihls Twentv-ninth I, Harold E. Sheely President Judge or the Ninth Judicial Dlslricl, composed or Ihe County or Cumberland, do eerliry that Lawrence E. Welker , prothonotary , hI' whom Ihe anne~cd record, certineale and allcslation were made and given. and who, In his own proper handwriling.thereunlo subscribed his name and arn~ed Ihe seal or Ihe Court or Common Pleus or said cou~. was, al the time ofso doing, and now 15 Prothonotary in and for said Counly or Cllnt>erla In Ihe Commonweallh or Pennsylvania. duly commissioned and qualined loall or whose aclsas such rull railh and crcdll arc and ought to be givcn as well in Courls of judicature as elscwhere. and thallhe said record, certincale and alleslation arc in due rorm or law and de by Ihe proper orncer. -, Commonwealth or penn.ylvania County or Cumberlund } ss: I, r.AwrAnrp F.. WAlker . I'rothonollllY i,r Ihe Courl or Common Pleas in aud ror the said County. do eerliry Ihllllhe Ilonoruhle HArold E. Shee\y by whom the roregolng IIlleslulion was mllde. und who hus Ihereunlo .ubseribed his name, was. al the time or making thereor, und still is I'residcnl Judge or the Court or Common "\eIlS. Orphan' Court and Courlor Quarler Sessions or Ihe Peace in und rorsllid Counly. dull' Commissioned und quulined: \0 all whose aels "' such rull raith und eredll ure and oughl to be given. ns well in Courts or judiculure a. elsewhere, IN TESTIMONY WIlEREOF. I huve hereunto set mv hllnd lInd urrixed the seul or suid COUgl Ihis ?<il'h duy or .lllly A,l), 19~, ,~/?W'tl'PLCL t. JV.d~.t~~,,~ .' , I J i ;., ! j ~, c i- " i ~ .... Q 0 . Q l.J ! ! ,) .... e CIC 1 ~ = l.J ~ ! ~ ~ 'j : ~ . ~ ! '" I :> i Jl .; . 'B l.i: ~ ~ ~ '8 ... 101 I "" 'j ~ co ~ 101 ] e "J e ~ u Q .c ~ ~ d d ~ 0 Q Q ;z: ;z: II. .:: l.J \IIi v lWE te. 1 - 12 14 - 21 22 - 29 30 31 - 35 36 - 39 40 - 43 44 - 47 ~ ~ Amonll Ihe Rccnrd. and Proceedings enrnlled in Ihe court or Common Pica. in and lor the counly or c;uroerland No. 1954 C.D. 1996 10 No. 95-6733 Civil In Ihe Commonwealth or Pennsylvania Term, 19 Is contained the rollowing: COPY OF Aonearance DOCKET ENTRY MICHAEL a:J'MAY, aka AMIN ALl BEY VS. pA DEpAR'IMENl' OF CORRECTIONS, MARTIN HORN, Camdssioner 13 Ntw. 28. 1995, Motion for production of Urine, for Mass spectranetry Testing and OIder of Court, filed. AND~, this 22nd day of November, 1995, upon consideration of the attached Motion for Production of Urine, for Mass Spectranetry Testing, a RULE is hereby issued upon the Respondents to show cause why the relief re- quested soould not be granted. RULE REI'llRNABLE within 20 days of service. By the Court, J. Wesley Oler, Jr., J. Ntw. 28, 1995, Order of Court, filed. In Re: Motion for production of Urine, for Mass spectranetry Testing AND~, this 22nd day of November, 1995, Petitioner is granted leave to proceed in this matter in Fonna Pauperis. By the Court, J. Wesley Oler, Jr.. J. IIIIC. 18, 1995, Respondents' Answer to Rule to Show Cause Order Dated November 22, 1995, filed. IIIIC. 29, 1995, Mandamus, and Objections to "Respondents" Answer to Rule to Show Cause Order, filed. JlIII. 10, 1996, Order of Court, filed. AND 10>1, this lOth day of January, 1996, upon consideration of Petition er's Motion for production of Urine, for Mass spectranetry Testing, and of Resp:lndents' Answer to Rule to Show Cause Order Dated November 22, 1995, raising serious questions involving subject matter jurisdiction, legal sufficiency of Petitioner's pleading and venue, a hearing/arglllll!nt on the motion, including the issues raised in Respondent's answer, is SCHEOOLED for Friday, March 22, 1996, at 1:30 p.m., in Courtroan No.5, Cunilerland County Courthouse, Carlisle, Pennsylvania. By the Court, J. WesleyOler, Jr.. J. JlIII. 10, 1996, AppUcation to Admit lbcurentary Evidence, filed. JlIII. 24, 29, 1996, Motion Requesting to Take Dep:lsition and Discovery, and Order of Court, filed. AND NOW, this 29th day of January, 1996, upon consideration of Peti- tioner's Motion Requesting to take Deposition and Discovery, a RULE is here- by issued up:ln the Resp:lndents to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. By the Court, J. Wesley Oler, Jr., J. Feb. 8, 1996, Application to Admit lbcurentary Evidence, filed. Feb. 8. 21, 1996, Motion for App:lintment of Counsel, and Order of Court, fil AND NOW, this 21st day of February, 1996, upon consideration of Petitioner's motion for appointlOOnt of counsel, the public defender is APPOINTED to represent the Petitioner. t"""\ ~ IWlB Nl. 48 - 51 Feb. 20, 1996, Respondents' Response to Rule to Show Cause Order Dated January 29, 1996, filed. 52 - 55 Feb. 22, 1996, Application to Admit D::x:lmCntary Evidence, filed. 56 - 62 Feb. 22, 1996, Emergency Request for Special Injunctive Relief, and Order of Court, filed. AND 1'0/, this 22nd day of February, 1996, the court being in receipt of the attached petitioner's pro se "Emergency Request for Special Injunctive Relief," and the Public Defender having recently been appointed to represent Petitioner, the doclmCnt is forwarded to the Public Defender Office for such action as it deems appropriate on behalf of Petitioner. By the Court, J. Wesley Oler, Jr., J. 63 - 72 MlIreh 25, 1996, Order of Court, filed. AND 1'0/, this 25th day of March, 1996, upon consideration of Respondent Preliminary Objection in the nature of a danurrer to Petitioner's Motion for Production of Urine, for Mass Spectranetry Testing, and following oral argu- ment, the preliminary objection is SUSTAINED and the motion is DISMISSED. See Wilder v. Department of Corrections, Pa. Carrnw. , A.2d (No. 304 M.D. 1995)(March 13, 1996)(dismissing irunate's mandaiiiii6 action who prerelease status was revoked due to allegedly misleading drug test result). By the Court, J. Wesley Oler, Jr., J. 73 - 74 MlIreh 27. 1996, Order of Court, filed. AND 1'0/, this 22nd day of March, 1996, upon consideration of the Respondents' preliminary objections in the above-capationed matter, and following oral argument on this date in which the Petitioner was represented by Timothy L. C1awges, Esquire, Public Defender, and the Respondents were represented by Shawn P. Kenny, Esquire, the matter is taken under advisement By the Court, J. Wesley vier, Jr., J. 75 - 81 Aprllll, 1996. Notice of Appeal, filed. Notice is given that Michael Conway aka Amin Ali Bey, Petitioner, here- by appeals to the Superior Court of Pennsylvania from the order entered in this matter on the 25th day of March, 1996. This order has been entered in the docket as evidenced by the attached copy of the docket entry. By: Michael Conway, Pro Se 82 - 83 MIIy 16, 1996, Superior Court of Pennsylvania Notice of Appeal D::x:keting to No. 376 HOG 1996, filed. 84 - 90 MIIy 21, 1996, Opinion Pursuant to PA RAP 1925, filed. 91 - 94 June 13,19, 1996, Superior Court Order, and D::x:ket, filed. The above-captioned appeal is transferred sua sponte to Commonwealth Court. 42 Pa. C.S. 762 (a) Per Curiam 95 - 99 July 29, 1996, Commonwealth Court of pA Notice of D:x:keting Appeal to No. 1954 C.D. 1996, filed. . . ~ . ,. ~. MICBAlL CONWAY, aka AMIN ALl BEY, Petitioner IN THB COURT OF COMMON PLBAS OF CUMBERLAND COUNTY, PBNNSYLVANIA v. I I I I I I I I I I CIVIL ACTION - LAW PBNNSYLVANIA DBPARTMENT OF CORRECTIONS, MARTIN HORN, COlIIIIIi.eeioner, Reepondente NO. 95- ~733 CIVIL TBRM ORDER OF COURT AND NOW, thie tt..~day of November, 1995, upon con.ideration of the attached Motion For Production Of Urine, For Ma.. Spectrometry Te.ting, a RULE iu hereby i.eued upon the Re.pondent. to ehow cau.e why the relief reque.ted ahould not be granted. RULE RETURNABLE within 20 daya of aervice. BY THE COURT, Michael Conway, BS-8919 aka Amin Ali Bey P.O. Box 200 Camp Bill, PA 17001-0200 Patitioner, Pro Se Chief Counael'a Office Department of Corrections P.O. Box 598 Camp Bill, PA 17001-0598 Attorney for Reapondents _ e~~ /I1:lsl'lS' ,J"T'. Irc .' . " .. , ~ ~ IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY CARLISLE, PENNSYLVANIA MICHAEL CONWAY, aka : AMIN ALl BEY : Petitioner : , vs , NO, : PENNSYLVANIA DEPARTMENT OF I CORRECTIONS I MARTIN HORN, Commissioner , Respondents , MOTION FOR PRODUCTION OF URINE. FOR MASS SPECTROMETRY TESTING AND NOW COMES PETITIONER, MICHAEL CONWAY, aka AMIN ALl BEY, Pro se, AND FILES THIS PETITION FOR GAS CHROMOTOGRAPHY-MASS SPECTROMETRY TESTING ON URINE METABOLITE, AND IN SUPPORT THEREOF ASSERTS AS FOLLOWS. 1. PETITIONER IS MICHAEL CONWAY, aka AMIN ALl BEY, WHO IS CURRENTLY AN INMATE AT THE STATE CORRECTIONAL INSTITUTION AT CAMP HILL, AND HIS PRISON NUMBER IS BS-8919.. 2. RESPONDENT IS THE PENNSYLVANIA DEPARTMENT OF CORRECTIONS, ~, PETITIONER WAS PREVIOUSLY BEING HOUSED AT A HALF-WAY HOUSE, LO- CATED IN HARRISBURG, PENNSYLVANIA, NAMED "PENNSYLVANIA COMMUN- ITY CORRECTION CENTER, 27 NORTH CAMERON STREET. 4. PETITION WAS SOON TO BE PAROLED AND AWAITING A PAROLE GREEN SHEET TO BE ISSUED ON HIS BEHALF. CONSEQUENTLY A RANDOM URINE URINALYSIS WAS ADMINISTERED ON AUGUST 20, 1995. 5. THE LABORATORY RESULTS, PROVIDED TO THE RESPONDENT BY THE CORN- ING CLINICAL LABORATORIES IN HORSHAM, PENNSYLVANIA. SCREENED FOR SEVEN SU.STANCES AND SHOWED A POSITIVE DETECTION FOR OPIATES. -1- " . . ~ ~ 6. THE PETITIONER MAINTAINS THA~ AT NO TIME DID HE CONSUME, INGEST, OR OTHERWISE USE ANY CONTROLLED SUBSTANCES AND THAT THE RESULTS OF THE URINALYSIS MUST HAVE BEEN WRONG OR THE RESULT OF SOME OTHER SOURCE, 7. PETITIONER MAINTAINS THAT HE HAD CONSUMED A SALD DRESSING PRIOR TO THE RANDOM URINALYSIS PERFORMED BY THB RESPONDENT AND CON- TENDS THAT THE POSITIVE DETECTION FOR OPIATES WAS THE RESULT OF THE CONTENTS OF THE SALAD DRESSING, WHICH CONTENTS INCLUDED POppy SEED. (SEE EXHIBIT 1, ATTACHED IIEREWITH AND INCORPORATED HEREIN). B. PETITIONER MAINTAINS THAT IF ANOTHER TEST WERE ADMINISTERED TO CONFIRM THE POSITIVE RESULTS OF THE FIRST TEST, IT WOULD BE Dg- MONSTRATED THAT ALLEGED OPIATES IN HIS URINE WAS THE RESULT OF A FOOD PRODUCT THAT HE HAD CONSUMED AND NOT THE RESULT OF HIS USE OF ANY CONTROLLED SUBSTANCES, 9. AS A CONSEQUENCE OF THE POSITIVE RESULTS OF THE TEST ADMINISTER- ED BY THE RESPONDENTS, THE PETITIONER HAS BEEN RE-CONFINED AT THE STATE CORRECTIONAL INSTITUTION AT CAMP HILL AND HAS HAD HIS STATUS FOR PAROLE REVOKED. PETITIONER HAS LOST A NEW WELL PAY- ING JOB, THE PETITIONER AND HIS WIFE HAVE SUFFERED GREAT EMOTION- AL DISTRESS, AND PETITIONER'S DUE PROCESS RIGHT NOT TO SUFFER PUNITIVE ACTION AS A RESULT OF AN INACCURATE SCIENTIFIC PROCED- URE HAS BEEN VIOLATED. 10. PETITIONER HAS BEEN DEPRIVED OF HIS LIBERTY BASED ON THE MIS- LEADING RESULTS OF A SCIENTIFIC PROCEDURE. A URINALYSIS THAT DETECTED OPIATES IN HIS SYSTEM THAT WAS CAUSED BY THE CONSUMPT- ION OF CERTAIN FOOD PRODUCTS, BUT TIIAT THE DEPARTMENT OF COR- RECTIONS CONCLUDED WAS A RESULT OF PETITIONERS USE OF A CONTROL- LED SUBSTANCE. -2- . ' ~ ~ , 11, UNLESS THE PETITIONER IS AFFORDED TilE OPPORTUNITY TO IIAVE THE URINE RETESTED TO DEMONSTRATE THAT THE SOURCE OF THE OPIATES DETECTED BY THE URINALYSIS TEST WERE THE RESULT OF A FOOD SUB- STANCE, PETITIONER WILL CONTINUOUSLY BE DEPRIVED OF AND DENIED DUE PROCESS BY A PROCEDURE THAT DEPRIVES HIM OF HIS PARTIAL LIBERTY, DEPRIVES HIM OF HIS SUPPORT AND STATUS FOR SATISFACT- ORY BEHAVIOR WHILE UNDER THE DEPARTMENT OF CORRECTIONS JURISDICT- ION, AND DISABLES HIM FROM DEMONSTRATING TIIAT THE EVIDENCE USF.D AGAINST HIM IS ERRONEOUS. 12. SINCE THE PETITIONER WAS RECOMMENDED FOR PAROLE, THIS URINALY- SIS TEST, WHICH PRODUCED MISLEADING RESULTS, HAS BEEN USED TO JUSTIFY RE-CONFINING THE PETITIONER, FORCING HIM TO HAVE TO RE- EARN HIS PAROLE, SUBJECTING THE PETITIONER TO SOLITARY CONFINE- MENT UNJUSTLY, AND FORCING THE PETITIONER TO HAVE TO SUFFER ADDITIONAL TIME IN PRI~ON, 13, PETITONER WAS IN A JOB THAT REQUIRED REGULAR TESTING AND HAD ANOTHER TEST BY A PUBLIC HOSPITAL THE SAME DAY AS THE DEPART- MENT OF CORRECTIONS TEST WHICH WAS CLEAN, 14. THE TYPE OF TESTING USED BY CORNING LABS IS A BROAD SPECTRUM TYPE TEST WIIICH SHOWED THAT WERE OPIATES IN THE SYSTEM. THE TEST DOES NOT AND COULD NOT IDENTIFY THE SPECIFIC METABOLITE. THE PETITIONER DOES NOT DENY THE FINDING OF AN OPIATE SUBSTANCE, BUT URGES THE COURT TO ALLOW A GAS CHROMOTOGRAPHY-MASS SPECT- ROMETRY TEST WHICH WOULD SHOW THAT THE SPECIFIC METABOLITE WAS FROM POPPY SEEDS IN LEGAL FOOD ITEMS AND NOT FROM A CONTROLLED SUBSTANCE. 15. PETITIONER HAS CONFIRMATION FROM DOCTOR ORSULAK OF SOUTHWESTERN MEDICAL CENTER WHICH VERIFIES THAT THE AMOUNT OF POPPY SEEDS ON -3- , . ~ ~ ONE BAGEL CAN CAUSE A POSITIVE OPIATE REACTION IN URINE SCREENING. 16, PETITIONER HAS CO~FIRHATION FROM DOCTOR MORGAN , DEPARTMENT OF PHARMACOLOGY, MOUNT SINAI SCHOOL OF MEDICINE THAT ACTUAL INGEST- ION OF NARCOTIC ALSO PRODUCES ANOTHER CHEMICAL, 6 MONOACETYL MORPHINE (6mam) WHICH DETECT IN ORDER TO SPECIFICALLY IDENTIFY NARCOTIC (HEROIN, OPIUM, ETC, SEE LAB REPORT INCLUDED HEREIN. WHICH POINT OUT NO OTHER DETECTION BUT OPIATES) I 17, PETITIONER HAS LABEL FROM SALAD DRESSING THAT HE HAD CONSUMED A STEADY QUANTITY OF WHICH SHOWS THAT POPPY SEEDS ARE ONE OF THE MAIN INGREDIENTS. PETITIONER HAS FAMILY AND WITNESSES WHO CAN VOUCH FOR HIS CONSUMPTION OF THIS FOOD ITEM. 18, NO DEPARTMENT OF CORRECTIONS REPORT OR ALLEGATION HAS EVER BEEN MADE THAT THE SUBJECT WAS HIGH OR ACTED STRANGELY. IN FACT THE URINE WAS TAKEN AS A PREREQUISITE FOR HIS RELEASE. HE WAS NOT UNDER INVESTIGATION OR SUSPICION OF USING DRUGS? 19, CORNING LABS IS WILLING TO DO A MORE CONCLUSIVE TEST WHICH WOULD EXONERATE THE PETITIONER, BUT CAN NOT DO SO AS THE URINE IS NOT THEIR PROPERTY. THEY HAVE CUSTODW OF THE URINE AS IT IS POLICY THAT THEY MUST 1I0LD IT FOR ONE YEAR. WITHOUT FURTHER TESTING THE DEPARTMENT OF CORRECTIONS WILL RELY ON TEST RESULTS WHICH PUNISHES THE PETITIONER UNDUELY. WHEN A TEST IS AVAILABLE WHICH WILL CONCLUSIVELY PROVE THAT THE PETITIONER WAS NOT USING ANY ILLEGAL OR CONTROLLED SUBSTANCE, WHEREFORE, PETITIONER PRAYS THAT THIS COURT REVIEW AND ORDER THAT THE DEPARTMENT OF CORRECTIONS IMMEDIATELY RETEST THE URINE TO IDENT- IFY FOR SPECIFITY THE OPIATES DETECTED IN THE ORIGINAL TEST, WHICH WAS THE RESULT OF FOOD SUBSTANCE NOT ILLEGAL CONTROLLED SUBSTANCE. TO REINSTATE THE PETITIONER'S PAROLE RELEASE STATUS. THE LAB REPORT WAS THE REASONING FOR PAROLE STATUS BEING REVOKED. A CONFIRMATIONAL -4- ,'I .' ~ ~ TEST PERFORMED AT PETITIONER COST BY CORNING LABS WOULD DETERMINE THE ACTUAL SOURCE OF THE ALLEGED OPIATES IN THE PETITIONERS URINE, PETITIONER PRAYS SAID ORDER WILL BE GRANTED I Diltedl -"pll. ;)0 JJr /7 :lS' ~ / ~ '~e.~ Islc ./ . /. ..UU~ MICHAEL CONWAY aka AMIN ALl BEY P,O, BOX 200 CAMP HILL, PA 17001-0200 ,.:- 6'~3'j J '1 -5- .;;:.:;~::~t:~~~~~:~!i9r~toiY :fj.pqJ1~~;.;~4 '!: t '.~.' . f' '.. -.,.,:' .. ,,:tr"~':i . . t, ~ _,." .t. . .....ol'.. I.... I'H~....'V.. t..~.....c;i,... - ~I~ 'ilk; ~. "i:lit 497& .f .~,~, PA COMMUNITY CORR. CTR. HARRIS9URG 27 NORTH CAMERON ST. HARRI59URG, PA 17101 ~f.;~~.:;. .., ..,.,. ~l~,COt4NI "G.tllliicai,'~', l>::~ . . .. " -.L,;.' . . 0' ..,. J.. .... \, ~' '''y~+': : Lab.ora(onel ~. . 'J;H t ~.Jlt'-tJ.!!~;~' I .~,," '.:~j:'~'::;; . (;';':\~~;.:~'" ~~.... '.. :'aoo~&MiDM t HQrIhIm.PA'i~.' ~~~. 003. 007(215) 8st43llO""'---'77.:i~,:~;---nzo~~IleM( ,'c.~;,... ~:,.~...~'.;~f&I...~ . . .......,~r~. ~~...~.., ....I'~';' ..' . '.".'{w'" ". . ."'. I. ..JU.', ... DIIt~ ,,' .ftIIlIc.IIM' _' . ...,...........l.. M 8/20/95 21158 T951073&9 . ' . ........ ~'':':'" '0' '0 . .'0. .' .' ".,.,. 43 . ... ........1) 958919 .. .,.. ~~.-.~. . . .:tt>............e:.. , .' . .-...... _..""Q1'. 011O__.., ............ ".....-...:& ,;:AotIMI 08/22/95 08/24/95 FINAL 1 .~__.._ . 0' .__', . .ot'" ....",..,.. ..-" . ............ ,'''Co. ~...,.........,..,.....I...... .r,:.:,. ".:' ....... .1.... ",,--.-'.. .. ~:.~~~~, '...\.;,~...t~..iH~\, .....~.'=..,~SO....~~ ,rr.w..~.... 3CREEN 7(W)CONFIRMATION BARBITURATES AS:NZ PHENCYCLIDINE ~~ COCAINE .DPIAT.f:S NONE DETECTED NONE DETECTED (25 NG) (COC) NONE DET~:rT~;1) .lIQ.t:!L.Q.~.:u;.;;.I:!, ~ . NONE DE'T!,:r':Ti:!.i S(lNE DETECTED . ~~_ DETECTED NONE DETECTED I~ONE DETECTED RUGS I -- ,~ FOR .--- --.-.. a00 NG/ML N 1 300 NG/"'L. NZDDIAZEPINES) -- OS) 20 NG/ML. -.--- - It'\Jo ~~<l.t""- - ''(~.ecQ wov..,\d "'* Ws. '" .. . .-.. os A!I'" . I'" "'~ 0#.1 '. :~J:J u._._ u....~. .. n .. ~ .. ..... ........., n,,~'.' ....... , -.. .. n n n r. ..... ...~,... ........ n .~... ......~ ......, .. n ,~.. .....~- .......~' - -- . I . , ~ ,..,.. . W I ~.:'t{ ...:' li.1 . " . ,':. AI~ . .,1.. r;rr. '~...'&;'~li: ~ ;')' .. , thewarkpli4'l,lt'llinulnlWbatcUuewttiire- ~, .uU.;tn faet, ~ inl.bt WlDt to .ltip that POppy aeed , bllellfadrUcteetllonyouU.enda;;, " , , Pr: Plul or.utak, profeaor of ptychlitry at tbe '" University of Teui Southwestf!l1l Medica' Center in ~u, MY. tbat~eD &be 11'0811 amDWltof opium la '. 0Di balel to.p.-sWl&b POppy MedI mlabtaot alter . "our mOod, Jlutlh:aa ClUM a potlUveieaalt lD lOCIJe . ,., rou~edru8~""'. ,!.....',., ' ~ r .... ," , ' th... ,':I ",,~lI't. 1- . \",)~I> ~ ~c.. , ~..C' VJ' \IC~. L <<rJ "" htlv, )III.......~ ",I h ~s~:(:'Y. (. ,:~:,~;):~,~::"" . :,.~.:..i ::;: :I<:~;~),':. ",:";,, ::.~.,.,;.....: ': ' ';'/:;' .,.' :":...:':.~, :~<,;.' .-;'. :,::' .,':, :.;:;;~,(::;:;::: :....:.,;.;',;'~.:';<'(~.".; :. \ '\,' .. , t .. 't" t' . ". ' " . . ' .. I . . ~ t-.. IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY CARLISLE, PENNSYLVANIA MICHAEL CONWAY aka I AMIN ALl BEY I Pet! tioner l I vs I NO: I PENNSYLVANIA DEPARTMENT OF CORRECTIONS I MARTIN HORN, Commissioner I Respondents I CERTIFICATE OF SERVICE I, MICHAEL CONWAY, PETITIONER HEREBY CERTIFIES THAT I HAVE I CAUSED TO BE SERVED A TRUE AND CORRECT COpy OF THE PETITION FOR PRODUCTION OF URINE, FOR MASS SPECTROMETRY TESTING IN THE ABOVE- CAPTIONED CASE ON THE DATE SET FORTH BELOW BY MAILING, POSTAGE PREPAID IN THE MANNER INDICATED BELOW, TO THE PARTIES LISTED BELOW, ATTORNEY GENERAL COMMONWEALTH OF PENNSYLVANIA STRAWBERRY SQUARE HARRISBURG, PA 17120 CHIEF COUNSEL DEPARTMENT OF CORRECTIONS 2SaO LISBON ROAD P.O. BOX 598 CAMP HILL, PA 17001 l'I?#.,.;!jJ dy5>J'lIY ~ f"I\ MICBABL CONWAY, aka AHIN ALl BEY, Petitioner IN THB COURT OF COMMON PLEAS or CUMBERLAND COUNTY, PENNSYLVANIA I I I I I I I I I I NO. 95- {"'73~ CIVIL TBRM v. CIVIL ACTION - LAW PBNNSYLVANIA DBPARTMENT OF CORRECTIONS, MARTIN HORN, Collllllieeioner, Reepondente IN REI MOTION FOR PRODUCTION OF URINB. FOR MASS SPECTROMETRY TESTING ORDER OF COURT AND NOW, thb u..l day of November, 1995, Petitioner h granted leave to proceed in this matter in Forma Pauperis. BY THE COURT, Michael Conway, 8S-8919 aka Amin Ali Bey P.O. Box 200 Camp Bill, PA 17001-0200 Petitionsr, Pro Se Chief Couneel's Office Departmsnt of Corrections P,O. Box 598 Camp Bill, PA 17001-0598 Attorney for Respondents e.~ (J'>~(..t ,'1 ~'ii( '/5';, A.l. Ire 11/~,I.r' ." ~ ~ I. ~. COURT 0' COMMa. 'L'" 0' CUIIID"QD count, .....YLVPI~ CIVIL DIVI.IOM MICHAEL CONWAY, aka, AllIN ALl BEY, Docket No, 95-6733 civil petitioner Trial by Jury of 12 Demanded v, DEPARTMENT or CORRECTIONS, MARTIN HORN, COKMIS~IONER, Respondents a.I'OIlDDlTI' Nlsw.a TO aUL. TO .ROW C.USI oaDIR 0.'110 )I0VZJlBIR 22. 19.5 1. Petitioner Michael conway, aka, Amin Ali Bey, is an inmate currently incarcerated at the state correctional Institution at C..p Hill ("SCI-Camp Hill") . 2, on November 28, 1995 petitioner filed a "Motion for production of Urine, for Mass spectrometry Testing". 3. On November 28, 1995 the prothonotary of cumberland county entered an order on the Docket which was signed and dated by Judge J. Wesley Oler, Jr. on November 22, 1995 and which granted petitioner's request for in forma pauDeris status. on that date the prothonotary also docketed a rule which had been issued upon the Respondents to respond to petitioner's motion within twenty (20) days of the date of service of the Order. Respondents' Answer herein is filed pursuant to that Court order. 4. The gravamen of petitioner's Motion is his assertion that he has a constitutionally protected liberty interest which was deprived by virtue of a random urine test conducted on \ '. ~ fIl\ August 20, 1995 which r.sulted in Petitioner's transfer from a Departm.nt of Correction'. Community Corrections Center at 27 North Cameron street, Harrisburg, pennsylvania to SCI-Camp Hill. Petitioner concedes that the urinalysis conducted on August 20, 1995 wal positive for the presence of opiates, but instead contends that the positive finding can be explained on the basis of his conlumption of a .alad dressing which contained poppy seeds. PRELIMINARY OBJECTION ON THE BASIS OF IMPROPER VENUE 5. Although the Courts of Common Pleas of this Commonwealth have unlimited original jurisdiction, ~ 42 Pa.C,S.S931(a)iKester v. Bd. of probation and Parole,148 Pa.Comwlth. 29, 609 A.2d 622, 626, n.5(1992), there i. no lawsuit pending before this Court which would confer subject matter jurisdiction and hence allow this Court to order the relief requested by the Petitioner. 2 . ~ ~ 6. To the extent Petitioner's "Motion" is construed as a Petition for Writ of Habeas corpus,' this Court's juriSdiction is liaited under Pa. R.crim. P. Rule 1701. That Rule provides as follows I (a)A petition for writ of habeas corpus challenging the legality of the petitioner'S detention or confinement in a criminal matter shall be filed with the clerk of court of the jUdicial district wherein the order directing the petitioner'S detention or confinement was entered. (b)A petition for writ of habeas corpus Challenging the condition of the petitioner'S confinement in a criminal matter shall be filed with the clerk of court of the judicial district wherein the Petitioner is confined. 7. Based upon the foregoing Rule, and because Petitioner was sentenced in Dauphin county, this court's juriSdiction in a habeas corpus matter is limited to petitions challenging the conditions of the petitioner'S confinement. There is no such allegation in Petitioner'S "Motion" which in any way challenges the conditions of his confinement. Rather, at best, Petitioner'S Motion challenges the legality of his confinement at SCl-Camp Hill, which is within the juriSdiction of the Court of common Pleas of Dauphin county. Therefore, this court does not have subject matter juriSdiction to entertain Petitioner'S Motion, even if it is treated as a Petition for writ of Habeas Corpus, , See Kester, sUDra, "Where the substance of a pleading is identical to a writ of habeas corpus, it should be treated as such." 609 A.2d at 625. 3 ~ flI\ Demurrer 8. The authority to establish pre-release centers such as Petitioner was confined in at the time of the revocation of his pre-release status, is set forth in Title 61 P.S.51051, which provides that the Bureau of Corrections Z "shall have the power and its duties shall be to establish with the approval of the Governor such prisoner pre-release centers at such locations throughout the commonwealth as it may deem necessary to carry out effective prisoner pre-release programs therefrom." pursuant to this statutory authority, the Department of Corrections has promulgated regulations codified at 37 Pa.Code 594-1, et seq. It is well-settled that "participation in work-release and pre-release programs is a special privilege granted for satisfactory behavior in prison." Lawson v. Com.. DeDt. of Corrections, 114 pa.Comwlth.573, 539 A.2d 69, 71 (1988); (citina Robson v. Beister, 53 Pa. comwlth.Ct.587, 420 A.2d 9 (1980) and 37 Pa. Code 594.3(a) (10) which provides in part that an "inmate's privilege to participate in pre-release programs may be suspended or revoked for administrative or disciplinary reasons.") 9. Lawson is controlling in this case. There, a urine sample was taken from the inmate for routine drug screening which was positive for the presence of marijuana. As a result, a misconduct was issued to Lawson and following a hearing, he Z By virtue of amendments to Section-901-B of the Administrative Code of 1929, the Bureau of corrections in now the Department of corrections. 71 P.S.5310-1 4 ~ ~ v.. found guilty of the mbconduct charge .nd his "pre-r.l.... .t.tu. va. revoked." 539 A.2d at 70. In Lawson, the Court h.ld th.t the p.titioner'. petition for review fil.d in the COlllllonv.alth Court was not "an adjudication subject to our .pp.ll.t. r.view because it does not implicate any right. or privil.g.. not limited by Department regulations." 539 A.2d at 71. Th. Court' further held that the Petitioner'S petition for r.vi.w did not state a cause of action within the Court's original juriSdiction. Lawson had claimed that his pre-relea.. .tatu. va. revoked without due process of law because he was not permitt.d to confront or cross-examine anyone with respect to the lab report upon which the Department relied. The Court r..pond.d: It i. clear, however, that one has no con.titutional right to either participate in a pr.-r.lease program, or to the confrontation and cros.-examination of witnesses in prison disciplinary proceedings. Lawson, .upra, 539 A.2d at 72; citinQ Robson. supra, and Wolff v. McDonell, 418 U.S. 549, 94 S.ct. 12 2963, 41 L.Ed 2d 935 (1974). 10. The United States District Court for The Eastern District of P.nnsylvania has also ruled that there is no protected interest or right to remain at a specific prace. In Lott v. Arrovo, 785 F supp, 508 (E.D.Pa. 1991), the plaintiff/inmate was on pre-r.lea.. status at a group home and while there his urine was positive for the presence of cocaine which resulted in a revocation of pre-release status and transfer back to SCI-Graterford. Although the misconduct was subsequently dismissed by the 5 ,.., ,..., institutional hearing examiner, because the inmate was not timely served with the misconduct notice, the inmate was not returned to the group house. He filed suit, claiming that his due process rights were violated by the decision to transfer him from the group home to SCI-Graterford. The Court granted the Defendants' Motion for summary Judgment on the basis that the plaintiff had no legally protected interest and therefore no cause of action. For this proposition the Court cited Montanve v. Havmes 427 U.S. 236, 96 S.ct. 2543, 49 L.Ed. 2d 466 (1976) and Hewitt v. Helms, 459 U.S.460, 103 S.Ct.864, 74 L.Ed.2d 675 (1983). "As long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the constitution, the Due Process Clause do.s not in itself subject an inmate's treatment by authorities to judicial oversight." LQll, 785 F.SUpp. at 509; citina Montanve, 427 U.S. at 242, 96 S.ct. at 2547. 11. It is clear that under Pennsylvania law, inmates have no right to incarceration at a particular place. Under Section 506 of the Administrative Code of 1929, 71P.S. 5186, the Commissioner of the Department of Corrections has the power to "prescribe rule. and regulations, not inconsistent with law, for the government of their respective departments...." Pursuant to this statutory authority, the Department of corrections has promulgated regulations at section 93 of Title 37 of the Pa. Code with respect to the incarceration of inmates. section 93.11,(a) provides that "No inmate shall have a right to be housed in a 6 ~ fII\ particular institution or in a particular area within an institution." Furthermore, under Pennsylvania law, "a prisoner has no constitutionally protected liberty interest in the expectation of beinq released from confinement prior to the expiration of the maximum term of the imposed sentence." Reider v. Com.PA.BD. of Probation and Parole, 100 Pa. Comwlth. ~33, 514 A.2d 967, 971 (1986). In addition, a "parole eliqibility date, usually set at the expiration of the prisoner's minimum sentence, does not vest any riqht to a qrant of parole upon reachinq that date." Moreover, there is no entitlement to participation in pre-release proqrams or parole even if the statutory minimum criteria have been met by the inmate. Reider v. Com..Bureau of Correction, 93 Pa. Comwlth. 326, 502 A.2d 272, 275 (1986). ....lrORI, Respondents respectfully submit that there is no leqal basis upon which to sustain any requested action on behalf of-Petitioner and therefore his Motion for Production of Urine and for Mass Spectrometry Testinq should be denied and dismissed. Respectfully sUbmitted, s:f:~{?i~-~ Assistant Counsel (f---- Attorney I. D. No. 51797 Answer filed on behalf of all Respondents PA Department of Corrections 2520 Lisburn Road, P.O. Box 598 camp Hill, PA 17001-0598 (717) 975-4864 DATE: December 15, 1995 7 . . ~ --- 1M U. COUllT O. COUOM l'LIlU O. CUJIIDLNII) counv, l'....VLVAIIIA CIVIL DIVI.IOM MICHAEL CONWAY, AKA, AllIN ALl BEY, Petitioner v. Docket No. 95-6733 Civil Trial by Jury of 12 demanded DEPARTMENT or CORRECTIONS, MARTIN HORN, COMMISSIONER, . Respondent . . . . . . CERTIFICATE OF SERVICE NIl) MOW this day of , 1995, I Shawn P. ~enny, E.quire, counsel for Defendants' Department of correction., Martin Horn, commissioner in the above-captioned action, hereby certify that I have caused a copy of the Respondents' An.wer to Rule to Show Case Order Dated November 22, 1995, to be placed in the United States Mail, first-class, postage pre-paid, addressed to the individual listed below: Michael conway, BS-8919 SCI-Coal Camp Hill P.O. Box 200 camp Hill, PA 17001-0200 5f2pg... ___-r Shawn P. Kenny,~e Assistant Counsel Attorney Identification No. 51797 Pa. Department of Corrections 2520 Li.burn Road, P.O. Box 598 camp Hill, PA 17001-0598 Date: December 15, 1995 ~ I::) .... I~ M !;,: 9 g'r, ~ ! ~Q :r.: ..)..:.. -, ~~ ...: L1:';":: r.o ~j:~ D. Gsrfi UJ L) iE '~.I l.!~u. c." b . - In a (;' u , , - J . """' ~ IN THE CIlIRT OF CIM40N PLEAS. CLt1BERLAND COONTY. PENNSYLVANIA CIVIL DIVISION MICHAEL CONWAY, aka AMIN ALl BEY Petitioner vs. No: 95-6733 Ci~ PENNSYLVANIA DEPARTMENT OF CORRECTIONS MARTIN HORN. ConIiss1oner Respondentl MANIWIIS, AND OBJECTIONS TO "RESPONDENTS" ANSWER TO RULE TO SHOW'CAUSE ORDER" r --- - TO: The Honorable Judge J. Wesley Oler, Jr. . NOW COMIS the Petitioner. Michael Conway. aka ~1n Al1 81y. Pro Ie. and avers the following: 1. That th1l Court has proper jurhd1ct1on over Petit1oner'l requelt for Gal- Mall Sptct~try Testing of Urine. Pursuant to 42 Pa. C.S. 761 A.l). Section 761 of the Judicial Code provides inter alia. A. General Rule - The Commonwealth Court shill have original jur1ld1ct1on I of all civl1 actions of proceedings. See also Green v. Pe!l!s,t.l,ta!!!! Boar( of Probation and Parole, 56 PI. tmwlth, 408. 424. A.2d. 639 (1981), I 2. PetitiOner prays this Court focus not upon relief. but upon recourse. the threshold issue is not whether the Petitioner is entitled to release, but whether Petitioner is to hive Iccess to a For~ and the opportunity to prove his Issertionl thlt the Burelu of Corrections have relied upon inaccurate scientific procedure. And given the impact of such finding upon Petitioners Constitutional Rights. In pella v.'A!~s, 702 F. Supp; 244 (1989). "The Court ruled that Offlc111s had violated the 1n1ltes ri9hts when they refused to Illow him to obtlin a second urine test at his own expense". The denial .1. ,-, ~ of a confimation testinq of urinalysis denies these Ri~hts nuaranteed by the Constitution and afforded lly statue. The ForUl' ~Ihere Petitiiner's case is to be heard is, of course, to be detemined by the tv:'e of relief h!! seeks. "I'ancal'1us, I.~thcr t1lan I:abeas Corpus, \~ns rer:!!dv for rureau of Correct- ions fallure to cnr.nl" I'it', it'. (\'" nnulation. Carl I)X rel ~a1tzbur~ v, 'f.!I.1J:~~c.r, :-:"n ~unf;r1r.r Ct. 1~::2 (In':' ----.------------ I'al'c~s "et1tioner assertions to co~pel r.oard of Prol at.inn and Parole to act upon annlication for narnl!! ~ssentially sou~ht Panda~us, (1 P,S. 331.22 3, ret1tioner lias ccnvictl!d in Dauphin County, renns.vlvania in 1991.of receiving stolen property, Petitioner pled nuilty and was sentenced to a term of incarcer- ation of 4 to 10 years. Petitioner never anpealed his conviction or sentence and is not challennin~ either at thls ti~e. rather, Petitioner is challenging the lack of due process and the loss of a liberty interest resultin~ from an Adffiinis- trative procedure that took place after the Petitioner was placed into a Pre- ft.l.... community C.nt.r upon completion of hi, ~Inlmum .entenc.. US IX ftel, flor.. v. Cuyl.r, 511 F. supp. 3B6, Harrl...y v. 'rewer, 92 S. Ct. 2600 (5). ~. To qu.llfy I' I con.tDtlonllly protected liberty Int.r..t P.tltlon.r Int.r..t mu.t b. I.sured by stltute, Judlclll decre., or ftegulltlon. '.ck.r v. S~lth, 55~ F. Supp 767, 769 (H.D. PI, 1982) citing Wolff v. HcDonn.ll, ~18 U.S. 539, 9~ S. Ct. 2963, ~, L.E. 2d 935 ('97'). P.tltlon.r hid b..n rel.I..d frOM tot.l confinement to I progr.- .dmlnl.t.r.d by the Bur..u of Corr.ctlon. Which pro- vld.d for I... th.n totll confinement. Th. f.ct thlt the D.p.rtment of Corr.ct- Ion. h.. no policy .nd procedure dlrectlv. In r.glrd. to drug te.tlng pr.dJudlc.. the ,.tltlon.r In thet It doe. not e'low P.tltlon.r to h.v. I bl.e outline of ftul.. end guld.'lne. In which to mel.ure the Ictlon. of the fte.pondent.. They cen Ind do let Irbltrlrlly .Inc. they hlv, no rul.. they ~u~t follow. 5. ,.tltlon.r Ipp.ll.d the decl.lon of the D.p.rtment of Corr.ctlon. through th.lr Int.rnll Idmlnl.trltlve procedure., but WI' not permltt.d to hlv, the urln. 1"- t..t.d, ev.n .t Petitioners co.t. To demon.trlt. th.t the conclu.lon of the lebet- ory report we. be.ed on I ~I,'eedlng re.ult. Nor WI' P.tltloner permitted to cell -2- ~ ~ .t.ff .nd wltn..... on hi. b.h.lf who could corrobor.t. thlt the P.tltlon.r did In flct con.ume . food .ub.tlnc., not 111.g1I controll.d .ub.tlnc.. P.tltlon.r WI' remov.d " . r..ult of Inv.lld I.b report which could not Ind Clnnot Id.ntlfy opl.t... Thl. I. In vlol.tlon of Fed.r.1 Du. Proc.s. Proc.dur.., (th.t two dlff.rent t..t. are mid. to correct for pos.lble errors In the first test). .nd Stlt. P.nn.ylvlnll Admlnl.trltlve Cod.. Judlclll Code ~2 PI. C.S. 6108 (6) p.rmlt. ,~ Ilborltory r.port to b. .ubstlntllt.d by I .Ingl. qu.llfl.d wltn.... Thl. lib r.port cont.ln. no cu.todl,n or oth.r qUlllfled p.rson from (Corning Lib) who could t..tlfy to the Id.ntlty .nd mod. of pr.p.rltlon of the r.port. V.r..n v. P.nn.. Bo.rd of Probltlon, 101 P.. Com R.ports Com. Ct 7. It 513 A.2d 1139, .1.0 Gr.llo v. P.. Board of Prob.tlon, 83 P.. Com R.ports Com Ct 252 It -77 A.2d ~5 (198~). P.tltlon.r WI' remov.d from the Community S.rvlc. C.nt.r .nd r.turnld to prison .s . r..ult of the L.b R.port Hlsconduct. The .ss.nc. of P.tltlon.r'. cl.l. I. th.t, R.gulatlon. .t 37 P.. Cod. 9'-1 .t IIg. "Partlclp.tlon In work-r.I.... .nd Pr.-r.I.... Progr... I. . .p.clll prlvll.g. gr.nt.d for .Itlsf.ctory b.h.vlor In prison". This Court Is ,sk.d to not. the .trong .Imll.rltl.. b.tweln p.rol. Ind pr.-r.I..... Ind..d many of the cor. vllu.. of unqu.llfl.d Ilb.rty which the Sup- r... Court r.cognlz.d th.t P.rol..'. .nJoy, S.. Morrl...y Supr., ~08 U.S. .t ~82, '2 S. Ct. 25'3, .r. .Iso pr.s.nt h.r.. Llk.. plrol.., . convict on pr..r.I.... c.n pur.u. eMployment or .ducatlon. H. I. .llglbl. for I.,v.s to r.new cont.ct. with hi. f..lly. H. may .Iso b. r.llls.d to p.rtlclpat. In un.upervls.d actlvlt- I.. In the community, .uch .s .h~pplng, r.cr..tlon, .nd visiting frl.nd.. A Pr.- r.I.... p.rtlclp.nts freedom Is more limited than a p.rol..'.. Th.t dlffer.nc" how.v.r, Is on. of d.gr.. only. Th. extent and nature of P.tltlon.r's fr..dom I. qu.llt.tlv.ly dlff.r.nt from .ny fr.edom .1 lowed at the prison. Ker.ovlr, r.vo. c.tlon of th.t st.tu. .ntllls . loss far more grl.vous. If .llowed .rbltr.lly to b. tlk.n ,w,y vlol.t.. Du. Proc.ss .nd U.S. Con.tltutlon, I~th Amendment. It I. well ..ttl.d that Admlnlstr.tlv. r.gul.tlons which .r. duly .uthorlz.d Ind pro- mulg.t.d hlv, the s.m. force .nd .ff.ct .s law, and .re binding upon the agency. -3- ~ t"". Glr.rd School DI.trlct v. Pltt.nger, 481 P.. 91 392 A. 2d 261 (1978), '11IIIO v. Commonwe"th In.urlnce Dept. 5B P.. Cmwlth 392, "27, A.2d 1259 (1981). PetItIon- er .eek. to force the Bure.u of Correction. to comply with It. own regul.tlon., which hive the .eme effect e. . .t.tute.... It I. thus evident th.t Petitioner I. not chellenglng hi. crlmlnel convict- Ion, but .eek. to compel the Bure.u of Correction. to .ct, .nd th.t, therefore, Petitioner'. method of remedy I. th.t of Hlndemu., .nd not of H.be.. Corpu.. The P.nn.ylv.nl. Supreme Court h.. .t.ted, A H.ndlmu. I. .n extrlOrdln.ry Writ of Common Law de.lgned to COMpel perfor- ..nee of . Mlnl.terl.I .et or mend. tory duty wher. there exl.t. . cle.r leg.1 right to the Petitioner. A corre.pondlng duty In the Re.pondent. end went of .ny other leg.I .dequ.te .nd Ipproprl.te remedy. Phll.delphle Newsp.per Inc. v. Jerome, 478 P.. 484, 387 A.2d 425 (1978), A Hend~. will not lie to cOMpel dl.cretlon.ry Act., P.lg. v. P.. Board of P.role, 311 ,. Supp. 94D (E.D P.. 1970) nor will It be I..ued to r..tr,'n offlclel ectlvltle.. Bo.rd of Com'r of Potter County v. Turner, 33 P.. Cmwlth, 639. 3B2 A.2d 124B (I97BI, . proceeding In H.nd.mus I. .v.II.bl. to compel Bo.rd of Probltlon .nd P.role to conduct. he.rlng or correct. ml.t.k. In .pply_ Ing the law. D.vl. v. P.. Bo.rd of P.role, "B" P.. 157, 398 A.2d 992. In Reider, the Commonwe.lth Court held thet decl.lon. of the P.rol. So.rd .re not .ubJect' to Jud'cl., r.vlew. Petitioner does not seek JUdlcl.1 review of the dl.cretlon.ry de- cl.lon. of the Bure.u of Corrections. But seek. Inste.d to compel Re.pondent. to .ct In .ccord.nce with Pennsylvlnl. Stete Admlnlstretlve Code. "No po.ltlve telt result would be Introduced without evidence thet the positive result w.. confirmed by .n .Iternetlve method of en.lysls." Thus, It would seem, ReIder Is Ineppllceble. "Decision Bued on Subst.ntlel Evidence", "Substantlel evidence", hn been defined by the Supreme Court II evldenee which Is "more then e mere sclntl I I.." It meln. such relevlnt evidence es e reasoneble mind might eccept e. edequ.te to .upport e conclusion. Rlchlrdson v. Pereles, "02 U.S. 389,401,91 S. Ct. 1420, 1427 28 L. Ed. 2d 8lt2 (19711, According to the decler.tlons of the Re.pondent In -It- .""'" ~ thl. c.... the .vld.nc. on which R..pond.nt b...d It. finding th.t PI.lntlff WII guilty of u.lng .n III.g.1 Controll.d Subst.nc. "Oplatll" WII II followt I A.) Corning Cllnlc.1 L.bor.tory comput.r f.x .h..t which I.ck. . proper found.tlon. 5.. Judlcl.1 Cod. ~2 P.. C.S. 6108 (6), Gr.llo v. P.. Bo.rd of Pro- b.tlon, 83 P.. Com. R.port., Com Ct. 252 .t ~77 A.2d ~5 (198~), Powell v. P.. Bd. of Prob.tlon, 100 P.. Com R.port. Com. Ct. 7 .t 513 A,2d 1139. A Bro.d SpectrUM T..tlng which c.n not .nd will not Id.ntlfy the .p.clflc H.t.bollt.. Th.r. I. no I.bor.tory ~.port Indlc.tlon. Horphln glucuronld.. Th. 'ed.r.1 Bur..u of Prl.on. .nd .t.t. .y.tem. now mak. .t I...t two dlf- f.r.nt kind. of chemlc.1 .n.ly.I. b.for. ch.rglng with. drug off.n... Thu. If there I. chulc.1 compound In the body which Is giving. "F.I.. Po.ltlv." with the Broad SpectrUlll/EHIT, . second t.st u.lng "GII ChrOlllltogr.phy HIli Spectr_try" may .how th.t you .r. cl..n. S.v.r.1 .xperlment. In which urln. which h.d t..t.d "DIrty" I. r.t.st.d by GC/HS. found r.tll of f.l.. po.ltlv. r.nglng f..- ZDI to 9n In Iroad SpectrUlll7EHIT tilts. Th. F.d.r.I Bur..u of Prl.on. WI' "Ing thr.. t..t.. to prot.ct the RIght. of Prl.on.r.. .nd Incr....d the .ccur.cy of th... tilts, s.. Adkln. v. Hertln,699 F. Supp 1510, 151~, (1988). In Brown v. S.lth, 505 N.V.S. 2d 7'3 (1987). the St.t. Court r.qulr.d . ..cond .nd dlff.r.nt t..t. AI.o CrOMWell v. WII.on. Clv. Act No. 82-1283, 198 (D.C. H.D. P.. Oct 12. (19.3). the Court r.qulr.d . "S.perat. Ind Distinct" tilt If th.r. Wlr. . po.ltly' f..- the flr.t t..t. Ev.n on. DI.trlct Court Fr.nk.nb.rrv v. Wll111M1, 677 F. Supp 793 (",0, PA. 1988). Igr..d on the confl~tlon t..t .ur.ly speclflty I. l.portlnt, wh.r. th.r. I. only the .vld.nc. of . faulty .cl.htlflc Procedut.. "~reov.r with . doubl. t..tlng proc.dur., Iny Int.rf.rrlng .ubstlnc. would ~.v. to Influ.nc. both method. to g.n.rlt. . fals. posltlv. r'ldlng/r.sult, Ind thl. outcome I. .xtr~ly unllk.ly .Inc. the two t.stlng method. Ir. bls.d upon compl.t.ly dlff.r- .nt .cl.ntlflc prlnclpl... Wherefor., P.tltlon.r forev.r prlY' .n Order b. I.su.d Grlntlnq Hotlon for Production of Urln., f~ H.ss Sp.ctrometry T..tlng to Id.ntlfy H.t.bollt.. ~sp.ctWly submltt.d, 7J'~J C_~)~;J- -5- . DC~1"1 PART III COh.. ONWEALTH OF PENNSYLVANIA -, _ .IVIIII CellUITII ACII.. D.PARTMmlT 0' CORR.CTION8 X .11C......t AjIpt.1 0 '"rlodle ...1... OOlhlr DC ....r N_ Inllllullon Dill .f ,".1... N.. fr.. 'UI I B5-8919 CONWAY, Michael SCIC 10-19-95 588333 PROGRAM REVIEW COMMITTEE'S DECISION AND ITS RATIONALE Inmate Conway, "BS-8919, is appealing Misconduct "588333 on the grounds that the punishment is Disproportionate to tre offense and the evidence was insufficient to support the decision. A review of the misconduct finds that the basis of your appeal is flawed. The initial urine test by Corning Lab was conducted on August 20, 1995. The second test taken by your employer was in August 24, 1995. This was four (4)days after the fact and does not eliminate or discount the original results of the urine sample. Further,. the lab reports on which the Hearing Examiner based his decision indicates there were 300 Nanograms per milliliter present in the urine sample. The Hearing Examiner correctly based his decision on this report. You claim that this was a result of eating poppy seeds in a salad dressing, which at best, this is questionable. A reading of 300 Nanograms is well above the threshold for detecting the presence of opiates. If in fact this was the source of the opiates, an extremely large quantity would need to have been consumed by you. Department of Correctjons polic)' does not: require the institution co release urine samples for furtherttesting at our expense or your expense. In addition, ~e refereRce to the misconduct of inmate Lee, BA-3426, from SCI-lo~view is A.relevant. We do not know the rationale for the misconduct be ng diSllf!'Btled.' The Hearing Examiner's decision was appropriate based on he ~reponderance of Evidence. Therefore, your appeal is denied. ' . DECISION RELATIVE TO HEARING COMMITTEE'S VERDICT Cl N.t Ippllelbl. X IUSllln o IUSllln'_ II ,"f"r '"ek f.r 'urlhlr Sludy II Ilanorll. lnoell ...., of Pr rill 't.'" CCJIIlIlttH PliIIfCltr, -, Oil' Mlch..l J. Kalor l~t. Pr r.. M~.r John A. 'Illkovlch 0 t ICentrlltl1d I.rylc.. Inlh L. ,"trucel. 0 I /fKIlII MIlII_t eCl DC-IS I_tl elt.. , COU"llllor Dopuly Suporlntondonl Mr. L. Llphlrl/Hllrlng ,"..Inor DopulY PIllk..lch I iJ--- . . IN THE COUR~ COMMON PLEAS, CUMIERLAND COUN~PENNSYLVANIA CIVIL DIVISION MICHAEL CONWAY, Ikl AKIN ALl lEY PIU t lonlr I I I I NOI 95-6733 Civil I I 1 1 I I v.. PENNSYLVANIA DEPART"ENT OF CORRECTIONS MARTI N HORN, COIIIllllllonlr Rllpondlntl CERTIFICATE OF SERVICE I, Mlchlll ConwlY, Pltltloner hereby certlfle. thlt I hive clu.ed to be .erv.d I true Ind correct copy of ",nd-.u., Ind obJlctlon. to Respondents Answer to Rule to Show Clu.e, the the lbov. clptloned else on the 41t. set forth below by 1II111ng, postlg. prepaid In the nenner Indlclted below, to the Plttl.. II.t.d below. Attorney Gen.rll Cc IIWlIllth of '.nn..,.tvlntl Str"'rry Squer. Herrt..ur.,' 'I 17120 S"-t ,. llMfty AI.lltlnt Coun.lt 'I. Deprlt..nt 0' Correction. P.O. 10. 5,8 , CMpHIIt,'1 17oot-0598 Ilt~; (2~Y7 ,f~,4",;,t?4 '# ~I Dill I ~1 i - ~ N .. el~ ~~ - - ..'I ~ ~ U::~ ou: 9.~ ,.~ ft 0' ~~ N ~ w Ig~ UJ 1:.1 ~ .~ In en . . . v 1""-\ 1!lo/ffl . IN The. C~rt 0 F C()"'m"~ P/~olS t oF' CwnlocrLAt1J cc;nud-y, ~nn5)'("""/'/!.. /!)/a", e t (!.UI'IWA)', If-klf A",/II Ali ~ej n J'/' r r~ It'." t ttlo, 9S-'" 733 1/, ftIlASfiv'tU},'''' /)fI'Q,.fmutr of Coeet"i';lls,1 /)/(/,.';"11 f/oflN, t!o"'/l'JI~/o-"d, ,t"'I'OrlJ,." f:. IIp,fJhr'..;~~,, ~. .n~",~+ Dowmt'rl tc(~~ Gt/,~......c.e.. IMJ ,flow c.url1t'S fJ.:. J,'t,v;)rr, IYJ/C.h~eL ConwAY," /</1- Rm;'rl A',' t3e.f, 11"0.5 G., 11") 1/1t'.5 fA,) AI'I'It,."",/n;' ./'0 ,4J,.,:f f)o(.o.(,"- ei1 JCI,er &'lI;d 0" c. .1It1J ;"11 S'4/J!l)urf Ij,ac.~;: l4.ss (r'~S I I, !1/.''/'I;1Hf' 0/1'1 'vovt'mb,'r :lgJ4 /9 'IS" ,c;;/,l i" '/j,/~ Court lfJ()i'~1I f'o~ ,tJI'D d-./cJ,'ol'\ 0 f lU/-11 <.., ro,e IJI/iS s Sft:c. trom dr't 7(sj'~r . ~, ftj.:./.")~tf IAoItJ..dJ. hf::<.. .to /'1C"l'foru.t~ InFur"'fJ.j,~,., Fruin De Juj,(1 f. )')1ur?All, /}?e J ,',,, I pro F~S5or /-0 ~'f'f"rt 1,1;~'.~a c./t)(-", Fol!. /J1l1s.s-5fJec..fro~~ fl!Y ];51,,,', t:>r , uemc, 3. 'Jj'lI P- )11,,",.411,111.0, /5 a.. /J/(C1,~... ( fJl'Or~~HI' .IJ"J A"J'YI'r c./'"ir ()/-- fJA(lr",~c.o/f)jy;1 J /he t.:: Iy tlI1WUS, '/.y "F Jt;~,p YorK lJ/eJ,c.,J S'"j,()(J[, ).J,s. <'XIt!rJ.,~e. is)"", /A<. j.(c:.j,,/~t1II1-Y'ec.'/.s I oFlIr/J1(. ft'sf,n'l- I jJ(.)II~~er e,vcr tr<<y5 Su;J Oo(.,.at1i'rltaf!1 t:;'Jt'''''~ ~e\ 4Jm,+~J. )1f1,d (1'l(.(Jrpot().~ti (;.J;.JI1,;' ..Jh ~cc.or~. )-V'~ ~( , . t""'I t"'I INTE~FERENCE, C~OSS-~EACTIVITY AND FALSE REPORTS by John P. Morgan, M.D. John P. Morgln, H.O. Is I Medical Professor Ind Acting Chair of PhIMmI- cology It the City University of New York Medical School. His eKpertl'e II In the technlcll Ilpectl of urine teltlng. This eKcerpt II tlken from Dr. Morgln. Herbllgrem, The Journll of the American Botanical Council and the Herb Reselrch Foundltlon. Plgl ~8-~9, Interference, Cross-Reactivity Ind Fllse Reports, entitled; ''Heroin Ind Oploldl". "A confirmed urine test for oplold metabolites Is convincing evidence thlt morphine glucuronide WIS In the system. However, It may have arrived there In I vlrlety of WlYS. The urine donor mlY be In Intrlvenoul Injector of heroin, he or Ihe mlY hlvl Inglltad legll or Illegll morphine or codeine; Ilthough unllklly, he or she mlY be In elter or lmoker of opium." Most comnonly, however, the donor Is In Innocent COniUm., of poppy seedl." Despite early protestltlonl from urine t.lta mlklrs, III publllhed plperl (Ibout 10) show thlt Ingeltlon of poppy .eldl productl will produce I confirmed oplold positiVI urine telt. Poppy I.edl, unlike hen.pl ~rIJu.nl leedl Ire nlturllly cOlted with a sm.11 residue of the plychOlctlve Iglnt. Wh.ther In poppy lied clkel, blgels or other breadl, "111111 drilling or H_nt- lichen, they contlln enough morphine to produce mellurlble morphine glucuronide. The dOle Is not enough to produce a phaMmlcologlcl1 effect, but the urine telt tech- nology II IKtremely lensltlve. A grim of morphine given by mouth will produce urlnlry concentrltlonl (~,OOO Nglml) eKceedlng the stlted cut-off concentrltlon (100 Nglml) by forty fold. Indlvlduels who test positive, under the federll pro. gram, for morphine glucuronide, but who do not heve needle tricks or conltrlcted puplll, Ire generllly assumed to have Ingested poppy seeds. , I . -. ." ". .ph".... Eph.aro IqU;NUno C 199~ Ste..n fa I"', UllrI 01 bOIanicol .phed,o ",oduclIlll,uaolem Ieo. Motmon Ieol Of ....In Col/1o .Juli. IKhat) will yl.ld politi.. urine IOmplll. wilh Iim.. aulyt. concenltatlon ahuy. dec,ea,e,. eltn in a rroten .pecimen. (This lau.r ju'lification i. lnl..) INTlI'.UNC., CIOII.llAmvlTY AND 'ALII I.POIlTl MarlI_. Thete ue many cann.binold. In the urine or. muijUllll Ulft and they may all conlribule 10 an immuooanay abu., the cu1-o1f conc.nllalion of 100 nllml. In addillon. TIICA /lilY .ppear in the urine .r..r pu.i.. upo.ure. This has not heen ....11 .Iudied. bul in one uperimen.. mO'1 .ubje". te>led po'lti.e ror THCA aner upOlure, in . .ery .mlll room. 10 Ih. "n()~e ur ruur mariju.n. el,.,eu.1 ror one hour. None. ho......r. u"eded . con' cenlr.don of 7' nllm!. IIII posslbl, WI illID< in'lances or pusi.. upolure ar.1IOI due 10 Inhal.tion. AI. pr.nk. hashish or mariju.n. may be uled in cookinl. and indl.lduall unlcnowinlly upo..d: or smoke mlY .n. .ulr rood and drposil canneblnolds on iu surf... berOlC ills .."n. 1bt pmcripllon me4icI1ion dronabinol (Marinole). synlhetlc drlta,9-11fC. will yield . positi... connnnabl. urine lesl. If an indi.idual il ulln. dronabinol. or Imoked or ealen marijuana. "' an appro.ed IInlmenl ror n.u.... Illucuml. u, IIIV,/Cla"d ,,",lIn,. he or she lhould establish lItil berore . po.ill.. lesl di\Co'en the urine,bome cannabinold mel.bolites. .,.,.,,., eltr 110 bun.." (roll .rtflfth, (,lm!'mJfJf/s 10 rmll14Jb,nfJiJJ which ap~a' In hlUlllln ",I~ IlrId hind III th, T1/C~ ul//lbtld)'. In the 1980'1. the mosl popular immUnll3\\o1Y. an .nr)nl< aCli'ily.t)pe. was ...n 10 be di'IUPled by ,ariou, anal~..ic. anll-innannnalory dru,l. includin, ibup,nr.n cAd,iliP,). Nuprin~1 .nd n.p,.nen INapntlynif,)). A chan,e In Ihe .nLym. d.ltc,lon ",heme ,upp",. .dly elimlnaled Ihis prnN.m. ahhou~h Ih.,. ha, he.n hllle ,'ud) or lhe manufac'urrr's impru\tmcnl claim. Sirh:': Ihrw olln.\h,'rultl.tJ .nli.intlammalory dlUE' ,NS.-\IJ)) inl,'rfcrcd ",'h IlIInlllll".."a), ror ...'er.1 dru~,. the prubl.1II ..a. a\Sulllcd 1I111 hi "" "lie llf cru". r.acli.ity 10 c.nnabinol~ m.l.b"lil.'. bUI . ~cn""11 d"'"I",,'n or the anliaen,anlibody bindina or Ih.... hl~hl, p,,"clO.l..und CIIIII. poundJ. No Sludi..,o I.arn Ir Ihl. 'i,ruplI"n can ,"'cur ,,"h lI,he, ..I. IUllIlAlGUW 12 ..". ,..........,., - - ,...., hi,hly.bound urinary ,"'U'., hi'. ""en cllllducltd. "'opuMnls of urine Itllln, poinlllul Ih.' Ihe pt....nct or NSAIO ,*lIuld lIIllaf'lfCI GC.MS connnnaliun, Tl1Ihy, lhere Is . rene..ed 11I1.,,11 In .1101 the plllducu or IItt cannabis (h.mp) planl. Mlny Indi,ldu.l. "'Il/~in, r", ",,"juln. r.rorm and h.mp r..I.a.lilllllln ha" eUlIlIned ,he hlllo",,' U"I ur,,,,, plan'. and ,'''II.~.IO,lu''ll.' ,.1110' h.1II1' 1'.1"" ,h~hln, Ind r,.ld,Mr, hale apl'car.~ lI.mp ,e.d p"oluCII. In. hillin, c.~n .nd oil pr.".d ("11I1 \Cc,h. arc .,a,l.ble I.,all) In ,Ilt V.S 1I.lIIp ....d, C"lIla,n n"llll' I'allll' h.mp ,...1 ~..tuu. no p'~ch"a'II" .If,,". 1111' ,10., II )Ield a 1""111.. Ullnc Inl. Canna hi, ....d, are an iml"lIanl c.II"III1I1'1II "r c""l1l1er,'1I1 bird. \C.~ in Ih. l'S; h.,,,...,. 'h.) are ,uh)..,.,t '0 I',im ulll.\(oltt radlallon 0' ". ,t.am.d under ,o..,nlll.n, /Clullllnn .nd g.n.rally "ill nOllmnin.I., /luollt olld op/oUr. Allol'loid 1I111l1unou"YI ,mpIoy"",,' I'hine ,Iucurnnidr .. ,he illl/llunilln, Inll,en. The anlllnly. Ihul produc.d, bind. 10 mlllphlll. ,Iu,'ur"nlde Mnd 10 Rt.ny I~lwt opiold compo,unds. 1be llplllid Immu","'\\I) W.I .IIIIlally dnllCllllIl .. 1..:1 heroin Ult. lI.ruin. plllducrd by lIulln, morpulll rrom IItt poppy. I. dlacetyl morphine. Injrclrd.smnktd. or InhIIrd, 11..*" ,Ihe b,aln mote qukkly Ihln mllrphllll. bul mUll be nwlallalllld 10 morphine lhelt in order 10 produce lhe tupholic <IN, tlrtL1. IItflli". luelr. mlY be \'llnlide,.d a pro"'/\I,.ln Ih.1 illsl1l~ . Ilrlllll opIold and doe. nul bind I\hlly 10 Ihe upioid rrc.pllIl. The m,'eIIIlllc.lly produc.d rnotphlne bind. 10 I budy conllllu.nl. ,Iucuron", and II uml.d. .Illn, ..ith ",olher h.lIlln mtllbolllt. 6.~1_. phine (6oMA"').ln urine. The Immuno.".y. as noIed obove. Is noc speclllc .. .... upjoldt. pIrlkularly thole "Iallvely d_ln IlnIclun 10....... will 11:11.... the ....y. MlIfpllllll. codIlne. and "lImI'l~ic" opioidl luch II o'yclldon, (Ptfcod.ne). hydroc"lllOnt (Vicndlne, or dlhydftlmmphl",m' lOiI.udldS)..IIl.11O pn poll. Ihe /Clulu on mnlllmlllu",llllaYI. Synthe'k uplold COlIpOU" such ..meperidine (Drm./Ulif,)), r.nl.nyltSublhlllH4l). "A \-, .nd proplla)phrne (OI"'Hle) ~1II nolo An IInm_1I1"f01l1lve urine "llIple should Ihul he lubjrned 10 I (}C.NS ~...I.""", 1.11. The slandsnl (}C.MS 1.11 seeks Oily marphlnl Po. ~1I1. 10 lhll urine. whkh WII posllhl on ImmuIOII1I1 ...... 01 oaycudone or codrlne. should IIOl be coelillMll. poIId... SomelabunlolirlwilllCllror6-NAM.dltpml'tlflWllldl I.I/>ou,," IOconlinn the InlftlJun oIbmll....._ noOllllroplol* mrlaboll,. 10 ""I distinctive product. II pe"11II In "" iii. for only )..4 !loon afler in,OIII,,". and ila ahIInc, 11110I a1w.ytCOMId. tred adequI" proor thaI Iltrllin w.. 110I uled. A cunnlllwol urine 1"1 ror oplold metabolittl iI_rilIcln."" ..ldrn".lhal mlllphint ,Iucumnide .....In lilt .y.l.m, ",,"UI.II mlY h..e a,ri,'ed lhe,. In . ,ari.IY IIr 'nys. 1be urine... may he In in"".nnuI Inj.cllI' nr hemin: he III ,Ilt m.y ha.. _,,'led le,allll lIIelal nwrphint ", mk.nr; .lIhllu,h unlikely. he or \he m.y he .n l'lIl.r or ,mnk.r Ilr opium. M"'I cllmmllnly. lIo"'tur. lhe dnnor " an IOn''''.1I1 cUII,urner .,r PIlPPy setd" DOIpi.. ellly p,nl.".'ion, rmm urine '.'1 lI.a~.rs. all publl,hed plpen (tboul 101 ,hn" 'halln~""nn nr I"'PI') \(,'d ptnducll"'tll pln.lurt I cun. linned "p,n,d 1""11". unne 'e,l. ""ppy ...d,. unlike he1llp'mari. Juana "td,. .If. nalurall) c".,.,1 "lIh I 'lIlall r..hllM or Ih. p,)chnaCIII. a,.nl, Whclhe, 10 1"'1'1') Ite,I"a~OI. hA,.11 or Dlher I".a,"; ..la,1 dr.,,,n, "' 1/,,,.tnt,III'h,n, 'hey cuIII.,n .nllu.h""", ~ I'h.ne '" I'"oluc. IIl<l\u,ahle rn"'l'hlOe alucul"nide, Tht ~n" II nl~ .n"u.h 'n 1'".lule . pharrn"'llh',lc.1 .rr..:,. hullhe unlit Its' " .13 ~......-.. .......-~. . '-.J'" ,-.., r-. . Summary of Illicit Drug Testing Target Metabolites and Cross-Reactions Drug sought Metabolite lought Croll.reaetlonl; "Innoc:.nt UN" 1. marijuana delta.9.tetrahydrocannabinal carboxylic acid (THCA); also. many canllabinoids in Ihe urine of 0 marijuana user may conlribule 10 0 posilive immunoassay 2. heroin morphine glucuronide; samelimes 6-monoacetyl morphine (6-MAM) olso 3. cocoine benzoylecgonine of. omphetamlne/ methamphetamine excreted in the urine parHally or largely unchonged ltehnolon Is eXlrtmely sensitive. A gram of murphine given by moulh ,,'ill prodoce urinary coneemrations (4.000 nglml) e.ceed. in, lhe stated cUI.ofT concentration (100 nglml) by' fony.fold. Individual. who le.1 positive. under Ihe federal program. for morphine glucuronide. bUI who do not have needle tracks or con, Slricled pupil.. are ,enerally lISsumed 10 have ingcslcd poppy seeds. A""",III.tlll,IU"""",pll,III.IIl'. The serrening antibody here i. raised 10 an ampllelomine. This lest i. .ubjecllo wide.pread cross,rtacli\'ily. An enommu. number of p"..riplion drug.. O\er. IheoCounler IOTCI medical ion.. and .ome f,,1<I, "ill cr",,.,eacl with amphelamine a,uibo.ly. II i, a rare "","he inllllun,',,,a) for amphelomrne in Ihe "or~place "hkh i. eonlirmed a' an amphel, amine or m<lhamphelamine on Ihe GC.MS. hen" hen confirmed. amphetamine and methamphelamine are 'liIIle~all)' availahle by prescriplion in the United Slate,. allhou~h . num""r or \la,e. 1111" pmhibil phy.ician, rrom pr<",ribll1~ either drll~ fur Ihe purpo,e of appetile .uppr."ion. Such pr",enplion dru~, a, phenlenuin. tFa'lin@l. dielh)lpropion tTenu.le@I.lerhulaline'BreJthJlI1c1'l. and ..."~i1ine IDcpren)I~I. amon~ olhe". "ill cau'e p",""e' un amphel.mll1e unne lem. Man) OTC eou~h. e"ld. a'lhma. .nd "e.ghtl"" prod, u..:t~ clml31n .:ph.:Llnn..:. p~udoeph(dnn(. ur rh...n~ Ipn1panlllamlne. "hich "ill 01.0 hind to the anlil><1<I) L"er' or l><'t.n".1 ephedra pnldUl.'h I1rru""Jltm Ita. ~1urm\'n It:1I ur (\t~n GUild fl/"/,, d\haO 10 ill )101.1 1"1\'"" unne ,ampl<.. Te.t ,.I..men. or eour.... ""lnllu GC,MS ., Ihe ,are~uanl. afltr IOlIial \Crttnin,. 1\1 t1imin,llt 3111ht\C' ~rth".rc.h,:1anl pruhltm\. ano. ..htn ItMin~ 1\ prllptrl> dnnt.lht> Jrt t.:t1rrt\.'1. Hll\ltHr. t1ne passive exposure; prescription medication clronabinol (Marinol@. synthetic deho,9.THq; no olhcr compounds oppear in human urine which bind '0 the THCA antibody morphine, codeine, and "semi,synthelic" opioids such os oxycodone IPercoda~l.hydrocodeinone (VicodinQ!l) or dihydromorphinone (Diloudj~) give positive results on mos' immunoassoys; mos' common:~s no known cross reaelants; and of leos' two bronds of coco-bosed lea ho.. produced pasilive urine les's o number of prescription d~ [Including e.hen'ermlne (Fasti~l, diethylpropian (Tenuole<!l), terbutaline (8rlOthaineQl)), and seligiline (Deprenyl(~lI, OYlr.thlt<ounter (OTq medications Isuch os cough, cold, asthma and weight loss products conloinlng ephedrine, pseudoephedrine, or phenylpropanolamine), ond some foods /boIOnicof ephedra proda U.rusolem leo, Mormon Ieo~alho edull{ (Kho~) cross react with am mine antibody of lhe U.S.'s larre.t urine t"lin~ I.boralories. Rocl~ Biomedical. could nOI. usin, a GC,MS le.l. di\lin,uish belween urinary eplle- drine and amphtlamlne. They w.re brieny suspended from the NIDA,cenilied lab leSlin, JlfOlram. Urine lellen poinl willi pride 10 tbe facl thallhose accused by mi.inlerprtlalion orlnl dallln lbls iocidenl were tboulhl unlikely 10 actually be amphecamine usen, and thus lheir disa,reemenl ",ith the leSI rtsults provoked. closer Khat. Ca"'u/a odu/i.CI994 Sleyen FOI'.r Huud~u" JZ . ., -4 . .'1 "'"" ~ /Xltc:.il1et t1u~WAY, A Kit !llll/If 1/;'-- $ty /J I-I . rt'f, f'l)fltf tis. h"Kjf'tV~";A Oe"u.).;nt'"f "j: t!/lrru.. f.,:'''J., PI,,. 1-,',., ;.JorrJ( c'u",,,,,;;,p';.,..r ~t"'pc,nJt""Js . !/e), ~..L'7 3 3, ... , J. .. .t~r7ipj{:'A l!..- ",;.: S'~~v,,:..c. 71 Il'lt,A,/(t CI>'1W14Y ( frJ, L~ flff I~(,.."'f c ~r'~,F,c'...s +h t4- t If.-AII(N:: suv,~ -4- T/l.u..~ J4"~ Coll.l~r'-~ c..uf.. C)P ,J.,i,.... . 111;'~ftlilJ.;' ?:, .4J",:'t Dr;,c.I.l.""'tI'I.(.t(~"I- /:-v,"J. rYl(....( ,'", . f/,t.. 'A'cJc/e c.t.(f/./~",(J C".,S<:. 0.1 )1/1 fJ/lrl,;:;. /n-'frJ. h,IQ,l)_ ; . !I. ..1 , t-O.J!,UIfU Tr,~'f'~ orr,~<- cA I r F C<N,,3r L 1J:'5/~ j"rl f S'hl/~'" P. tG'1lft ~S:JO t.'5h~(''' eoJC!~ ft BIlJ/, $"98' C""'114,.11 J;t n()Qf - <JS~ '? Wt. ~Plr7/' .-. . .' ,...--.....,--- '. '~ N ~ 0 r M ...: ::.> ();!; 6 .... t.);< ~ p: (::)~ ~- 0 ~w , ;' - ~g~ - "X ...., ~~ ~' La Ol U --.-.,...,. .~.'-.~---~ '" . . " ~ fII\ '/:1'*, z.q I,lffl, . ." MICBAlL CONWAY, a/k/a AMIH ALl BBY, Petitioner IN THE COURT OF COMMON PLBAS or CUHBBRLANDCOUNTY, PBNNSYLVANIA v. I I I I I I I I I I CIVIL ACTION - LAW j' , ~,. PENNSYLVANIA DBPARTMBNT OF CORRECTIONS, MARTIN HORN, commiaaioner, Reapondenta NO. 95-6733 CIVIL TBRM \~~ [i'" ORDBR OF COURT AND NOW, thh 2;tt,day of January, 1996, upon conaideration of Petitioner'a Motion Requeatinq to take Depoaition and Diacovery, a RULB ia hereby i.aued upon the Reapondente to ahow cauee why the relief requeated ahould not be qranted. RULE RETURNABLB within 20 daya of eervice. BY THB COURT, Michael Conway, BS-8919 a/k/a Amin Ali Bey P.O. Box 200 Caap Bill, PA l7001-0200 Petitioner, Pro Se Shawn P. Kenny, Baq. . Aaaietant Counael ~/~ )na...""" Department of Correction. (j //.;? 11 /. P.O. Box 598 .1<:.- Camp Bill, PA 17001-0598 Attorney for Reapondsnts Coh~~.t ,/~? /9.. Ai'. Irc P.I.EO-omct: r~ -', ,.. r'''''-II~I,'''''T''''Y ...,' j;' 'j: ,j . I , ..Jltol~ c~ Jr,11 29 ["/": 01 ..0 I," II to , CUI ,~,.", . "') ,,',' "'T'( }.::d~j ';..' ~ 'I. t'\./l'J'. r2l~NS YlVtl.:';l\ . . ., . ~ ~ ~ I ~, " ,J' \ ""Rtf - IN TilE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Michael Conway, aka Amin Ali Bcy Petitioncr vs. : : I : : Civil No: 95-6733 Pennsylvania Departmcnt of Corrections Martin Horn, Commissioner Respondents MOTION REQUESTING TO TAKE DEPOSITION AND DISCOVERY AND NOW comcs Petitioner Michacl Conway, aka Amin Ali Bey, Pko se, who requcsts to take Depositions and Discov~ry, avers the fOllowing respectfull y: 1. Petitioner was granted leave in the above case to proceed Informa Pauperis by Court Order dated the 22nd day of November 1995. 2. Corning Clinical Laboratories'is located at 900 Business Center Drive, lIorsham, Pennsylvania 19044. 3. Doctor Jeff Cades, and two technicians named Brenda and Michael whose last names are unknown are employed by Corning Clinical Labor- atories. 4. Petitioner requests to take Depositions concerninq the validity of the test results through written intcrrogatories Or in person as the Court deems just. 5. Petitioner bclieves that Doctor Jeff Cades, Brenda and Michael at the Corning Clinical Laboratories expert tcstimony will be crucial to the resolution of the complcx technical issues in this case. 6. Petitioner commcnced this Action by complaint against Rcspondents who employed the Corning Clinical Laboratories in Horsham, Pa. ~ M ~ N .. 5 - _c1' I~ So-:: r- 0_, ., .<l: r::J~ ~ _"l' . ::E.ri N ;:Jz ~ f' -... -~ ~-- ,iJiL! ~~: r:'Jc.. -, 5 ~. '" '. (,0"\ U '. .-t v I oR Ii /9' ""'" ('""., . t WI nn Ir~latf IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL CONWAY,A.K.A. AMIN ALl BEY PETITIONER VS. PENNSYLVANIA DEPARTMENT OF CORRECTIONS MARTIN HORN,COMHISSIONER RESPONDENTS APPLICATION TO ADMIT DOCUMENTARY EVIDENCE NI),.9i.i~J3 AND NOW CDMES PETITONER, MICHAEL CONWAY,A.l.A AMIN ALl BEY, PRO SE,AHD FILES THIS APPLICATION TO ADMIT DOCUMFNTORY F.VIDENCF. IN SUPPORT THEREOF:'ASSERTS. I) PETITIONER ON NOVEMBER 28,1995 FILED IN THIS COURT HOTION FOR MASS - SPECTROMETRY TESTING OF URINE TO IDENTIFY METABOLITE. - 2)PETITIONER WOULD LIKE TO INCORPORATE A LETTER FROM McCORMICK I COMPANY, INC. THIS IS THE MANUFACTURER OF SALAD SUPREME SEASONING IN WHICH PETITIONER CONSUMED. 3) PETITIONER IS UNABLE TO OBTAIN THE VALUABLE INFORMATION WITHIN THESE PUBLICATION BECAUSE THE INFORMATION IS NOT AVAILABLE WITHIN THE PRISON LIBRARY. BUT WISHES TO INCORPORATE THIS INFORMATION TO SUPPORT IN HIS PETITION THAT ILLEAL DRUGS IS NOT IN THE PETITIONERS URINE. WHEREFORE. PETITIONER PRAYS SAID INFORMATION BE ADMITED INTO THE RECORD TO SUPPORT MOTION FOR PRODUCTION OF URI~FOR MASS GAS - SPECTROMETRY TESTING fOR IDENTlflCAllON Of (OPIATES) METABOLITE. - MICHAEL CONWAY PO BOll 200 CAMP HILL,PA.17001 BS8919 , ' '-/D r:I~:iOiT;~~ C;: ',.:" "I~t.. l-i,'ll'r' %r-~r.?1 ii!I?:2U CU.\;::~~I" r. ~j \.t:U; :l'(' I'" '''', t '- ':' \ , ~ ~ t; " oLI\I\-'; Il.l.".. ,_ \ ". v '-- ~ . 1""'1 ""'" . '. .., II THE COUIT OF CO""ON PLEAS, CU"BERLAID COUITY CARLISLE, PENNSYLVANIA MICHAEL CONWAY aka AMIN ALl BEY Petitioner vs No: 95-6733 DEPARTMENT OF CORRECTIONS MARTIN HORN, Commispioner Respondents CERTIFICATE OF SERVICE I l I Michael Conway, also known as Amin Ali Bey, hereby certifies that I have served a copy of MOTION FOR APPOINTMENT OF COUNSEL by postage pre- paid to all parties listed herein: Assistant Counsel Shawn P. Kenny 2520 Lisburn Road P.O. Box 598 Camp Hill, Pa 17001-0598 Prothonot3ry Office 1 Courthouse Square Cumberland Count Courthouse Carlisle, Pa 17043 Date: m~j} C~~ ~I Michael Conway, ala Amin Ali Bey Petitioner, Pro se fr. en G ,... " I,IJ~S M _.3..... (J...;: ()-. l:....J.:iI r'u i~ ~ ~~- ",~:-",.t , . C':l ::'i' ["1' .1:.' rl'" I " .. . ~t lLl: r" , ,"(\) r':: ill 'nt~ ~. :~1 1.1. '0 U o. D " . . '. .--,' , r .-, ,...., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY I PENNSYLVANIA CIVIL DIVISION MICHAEL CONWAY, AKA, AMIN All BEY, Docket No, 95-6733 Civil Petitioner Trial by Jury of 12 Demanded v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, MARTIN HORN, COMMISSIONER, Respondents RESPONDENTS' RESPONSE TO RULE yo SHOW CAUSE ORDER DATED JANUARY 29. 1991 Counsel for Respondents, Shawn p, Kenny, hereby responds to Petitioner's Motion Requesting to Take Deposition and Discovery pursuant to this Court's order dated January 29, 1996 as follows: 1, Admitted. 2, Admitted. 3. Admitted that a Jeffrey Cades, Ph.D., is employed at Corning Clinical Laboratories, All other allegations are denied, 4, No answer required, To the extent an answer Is required, the validity of the test results is not at Issue, Indeed, in his Motion for Production of Urine for Mass Spectrometry Testing, Pelitloner admitted that he "does not deny the finding of an opiate substance...."(paragraph 14; see also paragraphs 7,10,11), ""'" t""'\ Rather, this entire lawsuit Is an attempt to relitigate an Issue that was decided against petltlonsr In the administrative disciplinary procedure, that Is, that the opiates were the result of Petltlone~s consumption of a controlled substance as opposed to his consumption of poppy seeds, 5, Denied, By way of further answer, see answer to paragraph 4, 6. Denied as a conclusion of law. As noted In Respondents' Preliminary Objections, there Is no lawsull pending at this time. Admitted that Respondents utilized the services of Corning Clinical Laboratories In Horsham, 7. Denied. Strict proof demanded. By way of further answer, Petitioner concedes the validity of the test results, Petitioner Is merely disappointed Ihat his alleged explanation for the positive test resull, I,e., his consumption of poppy seeds, was rejected by the hearing examiner assigned to hear the misconduct issued to Petitioner, WHEREFORE, Respondenls respectfully requests that the Court deny Petitioner's Request. NEW MATTER 1. Petitioner does not dispute the valldllY of the test results In this case. As noted, In the document Petitioner filed to commence this action, the "Motion for Producllon of Urine, for Mass Spectromelry Testing", Pelitloner admits that opiates were present In the urine sample he provided on August 20, 1995, 2 ~ - ?-; - ~D .. '". M ..o....~ (1=,1 b :r. U;:~ a....:. zr: ,... r:,;) ~.' 0 :'<~l r._ L_ N r.e ~" t'. .". 0.1 ,","!W [,: L..~J !.;'IW- ~- :'5 Lo. ,n 0 l.n Ll .' ..:.) r ( ~ r"', .. IN The CtJ~('t 0 F C.om/YloN fle"5, C~m/')t'rtAJ1J (!1I~nfy c!arl/s/r:.., fJ~I1MvLJ.'l(""~ If)" 1,,. ct eO/llwl4f !Jtl4. I9m"~ 41,. t9q I) 1 'I . fCT'IT10rlrf Dcfqr I mrnfs'of" Ct)~~ ec f/OH:' mllrf,iI HorNI tl)m/YIls.5j~lloq. ~ i ~l'v"J~yr/:;, J!c. 9S C733 ~!tc.~,L"" -r; .IJ,../",:f /)oc.lLmf'rlfc-Jl'V ;;:""j 01"-", 70 7)" fJ"I1IU""~/(. J(41)(. J. tAJ<::;/tdo ol()~ -;(e~ ;;"J /f/~ f{/.I'I.~tlfe frJ,rJ.,u[ G;1WIJ~, hI), So:. h/~5 fj,".5 . 4jJII,(.~ /,I)~ /-0 )1..1 1ft,1 [) e)(/u~.t' II 1-, ~y .c J-. ;j I' I1l -< h~cl /" jitl/~rr ..fj.,'I'~oF J4.S.sl'rJ~, j, ~fto~~ji6 iJ AS);;j r;'R. rf!t4J,'PMs ~((.lroH'1cf~r I...:;-h-f".,_ Iv i J~ n /, i; $,- f,.Ii~.1r ,/" I;; tlJt"~1 C w J, ~/.L,,~f!. ~.l~> ..h t'~/f".(! N Iu lite R(o,'d .)/'c l,db Irj"{rf eo;: ::JJ1/1J4/e Y<nl lit. J},e... /!./,'t::JoS' tt/llu t(l4!> 41 I;'~ NAIF {.cIjJy ~u u.H. ~d JI/u I' fh en" no" 50 /"0 f. 3, 7/,1(" )./,,/Ft,,14Y j"s lone. 1/ S'~N'H<''iy )(";'/,;/ (U1/Jl/o/;lrJr b.tf /1~f /.Jr~I'j"J ~.s K>''i ;;;,1-";',;, lA,':,' ::;~e c."..'S.:J~I2<1..{"-" '/~ 7J,,:; /(I.-J,o'"tl1 #/11'';<:.$ I;:' .Jk.r fl!~;''; tf/l"ft! I1Fr;,.J...J .fL.,} A l't"',,...tc!' /It tf.lfJl..I JJ bjfVi't .f,. J ",L <. ftr;VJ Sot tbhl'"Ff;"" 'pi ~:~,"~ ~ II IJ/',~'J> S ",- de"., J 1'>1 C:.L tv, ~t( J:, <. co,.,..1 n... J . / J /. 1 I /' / //Y ~ I' /? /' 52- /,t -rrJ riff(. "l f c: c)" e" s./. //i:<<!"A~.v L_" p ~ I . PA CO~INUNITY CORR. CTR. HARRISBURG 27 NORTH CANERON ST. HARRISBURG, PA 17101 . ".t&-"'. \. ,. ~. .- ," . '~;' " "-.; ~I JO""', .....i.lJ"".'.. ,'.~' t..~\t,'~'l". "'. . ..~, A' .. '" -' - _1' ..,"':,. " "'. . . LlbOf~ r1.~Rqij~\Iyo.",... ',lot"""I-~j'"" \".,'jo~!ll;'",~, .'.,.....'I>j,';"...,;...J....~~of.. '. .t...' a'" '.' . _ . ' . ,.:: ~~~~:...,-~:,~' ." _ .'~"" . .,' ". CORNING Clinical " Laboratories 0fIAI'11.'2C (REV..tIIlII , .'t,:; . .~~,' ~'.'"~:','i,~,"'l", , 4976 1/103.007 '" 0' '. 900 Bualnoa. CDnl.r DIIYI ' HoIWm, PA 18044 . (215) 957,9300 . 800.825,7330 (PA) . llDO-825-7320 (ClIInI6Imc.' . .~. . " ; , , '. " ... I. _10 A'(4:205 Age 48 ... DtII c.ded Tn CaIIded 1:2/:2&/95 00130 -.... T951&4200 P.lItN HItnI BETHEA,BEN M NEDS TROUTNAN 234541 .,"\ .. .... "n .-_. .12/27/9 ........... . FINAL . ..... 1 ''If.' ',';' ,..,........../............>I~ t: ..~~........\,'i.."""'O"~. ~.....~~ .TIIl '. . ',. --f\qt UnIII SCREEN 7(WlCONFIRNATION CUT OFF NONE DETECTED NONE DETECTED n NONE DETECTED NONE DETECTED I'n NONE DETECTED NONE DETECTED NTRATlO S FOR DRUGS. BARBITURATES 1l1<~70PIA7 ' PHENCYCLIDINE '" COCAINE 1000 '" OXAZEPAM ZODIAZE 'INESl DC 300 O~'IATES 300 D ~~ DELTA-9-THC-.OOH ICA NAIHNOIDSl 20 '. GC/~lG (COC) . MORPHINE, GC/MS1 * I NONE DETECTED ON'" O,"TEC CUT-O F CONCENTRATION OR OPIATES ...,c. MORPHINE 31/10 ,r~G/ML "'0I17l Nf:;; Ihll ACCEPTABLE INTEGRITY ACCEPTABLE . END OF FINRL REPORT' .ed_on.: ., 53 , '" .......... .......... ...11.... ......... n..n ..._._..Il.....I....._..~. 11...._1:1....'..11" "I"".P ....~......,..P~'''t'lIf'll1v ~"'.$1~~~'~I~~';"";of,,^:~~.2ra ory :B'P~r.t::,~.~ ~, ' ..,., f '. . ", .,. PA COMMUNITY CORM. CTR. : '","" .,; ',t,;,r}",\ HARRISBURG ';". :~I. ~~. 27 NORTH CAMERON ST. '.I'~~~ HARRISBURG, PA 17101 ,. :;~~.: 10976 . . · .'"8,...~ .' .......a ,."h'..""-"c'. ... ........... ~u.~." :.q"'~~)'~"'1 CHA~1. tt.~.:~""'",' . ""'Co .".....,.......".,.."IWMM .f':..." p,'~.!5@.... 1.158919 . .-........ .;. _.,.IOj~I.. -_. 08/22/95 '''....-.- . . '--" ," 'I"', ..........._-. . :';',~ ~ ..~~; '. ......~IIIA~ ~,!,'.py.;~~,.. ..:-'\'n'I:;'~:f..:'C;... ...!,ft"...~",. ,,It~ '!'~.,. iCREEN 7(WlCONFIRMATION AMPHETAMINES BARBITURATES RI='N7 PHENCYCLIDINE (a5 NG) (COCl ~'" COCAINE .OPIATES " ..... '':'~ I/J.,. ......"... . , NONE DETECTED NONE DETF.rn. (l .tm15...r<.~.:u;.~. ~t C! NONE DETF.'::TC!.o SClNE DETECTED . ~llliIL DETECTED NONE DETECTED ImNE DETECTED RUGS, FOR 200 NO/I'll. OP ATES 3e0 NO/"'L 20 NO/I'll. (CANNABINO DS) END OF INRI. REPORT . '" I.,clo ~~OLC.""- - Coo,. Y~4Q ~~ wo\,dc! ~ 0...... .cJt. Ws. . , ,- '-::-\ GlS ~r. ' A,,' - .' ~.. ~.. ::. :,;) . -, " --.... ... . Wa_... ""_' .. n C'''' a c....... .....-.1 1'\......... a_...., I ....u un n nll:.,.." '''-'1'. ...._., r'\.._... .h...._ ...,.... It n c,.... ...._ 0.1....-. " .. .. "- en ~ r:;; - s; t.'.: .. ~'5,( () s:1 ~;.~ .:1:';0- '.):'- .. ~ :' :'." .~:q If', ~\, . ". ,,'.'" N -"'J " \""":,,0 U N .~~ LL\" C' ;';irl] t.- , r.' 11'0 r'': I', ll) .:l CJ v' .:.; , ~ "..... MICBABL CONWAY, alkla AMIN ALl BBY, Petitioner IN THB COURT OF COMMON PLBAS OF CUMBBRLANDCOUNTY,PBNNSYLVANIA I I I I I I I I I I v. CIVIL ACTION - LAW PBNNSYLVANIA DBPARTMENT OF CORRBCTIONS, MARTIN HORN, COllllli..ioner, Re.pondent. NO. 95-6733 CIVIL TBRM AND NOW, ORDER OF COURT thie 'Z..J day of February, 1996, the court being in receipt of the attached Petitioner' s pro ee "Bmergency Reque.t for Special Injunctive Relief," and the Public Defender having recently been appointed to repreeent Petitioner, the document i. forwarded to the Public Defender Office for such action as it deem. appropriate on behalf of Petitioner. BY THB COURT, J Shawn P. Kenny, Beq. Ae.i.tant Counsel Department of Corrections P.O. Box 598 Cemp Hill, PA 17001-0598 Attorney for Respondents _ ('.......J I"t4<PMt .::iJ:z~ 1'1". -'If a ~. f'. TaIlor P. Andrews, B.q. ce-p. o'k;"''''' To Ch ef Public Dsfender---=-. 'r ; q:. . , of Cumberland County , ' ct~,').J/9""<., Michael Conway, BS-89l9 - e.~~.'\ ,,,,,,,.(,.11. :../";> ~ /.,,,, on alkla bin Ali Bey 1.1 ~",", P.O. Box 200 I" Cemp Hill, PA 1700l-0200 . Petitioner, Pro Se ~J;' ,"" , /!' .\';~J " , 1..0 ....JJ ~,;'j Irc I' . \- '-' ..,,' ~ ; , . . :/'L" :. , '1.(.:.0 ...... 1-...''"ll.J;U ~ ~ IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY CARLISLE, PENNSYLVANIA MICHAEL CONWAY aka AMIN ALl BEY . . Peti tioner . . vs. . . No. 95-6733 DEPARTMENT OF CORRECTIONS MARTIN HORN, Commissioner Respondents . . . . EMERGENCY REQUEST FOR SPECIAL INJUNCTIVE RELIEF TO THE HONORABLE JUDGE J. WESLEY OLER JR.: AND NOW comes Petitioner Michael Conway, Pro se, who is filing this emergency request for Special Injunctive Relief, and in support thereof avers the following: 1. The heart of Petitioners claim is essentially that the Respondent took disciplinary action against the Petitioner without a legitimate basis upon which to conclude that the Petitioner committed a misconduct to which a disciplinary action was justified or required. 2. Petitioner wants to have his urine sample retested and to use the re- sults of the RETEST to demonstrate that the source of the opiates found in his urine was a food source, specifically salad dressing containing poppy seeds. 3. Corning Laboratories is willing to do a more conclusive test which would exonerate the Petitioner, but can not do so as the urine is not their property. They have custody of the urine as it is policy that they must hold the urine for One Year. (emphasis added). 4. Petitioner wishes to incorporate herein a Lab Report of Inmate Ben Bethea. *AY-4205, who tested positive of opiates by Corning Laboratories and confirmatory test, Gas-Mas Spectrometry to confirm and/or corroborate Petitioners claim such testing can be done by said laboratory which was FED 2 1 1996 -l- ~ ~ not afforded the Petitioncr in the original tcst of August 20, 1995 ur- ine. (emphasis added and lab report herein incorporatcd). 5. Respondents with all due rcspect is knowlcdgeable enough to know urine will be destroyed aftcr onc year, without the requisite confirmat- ory test. The disciplinary action takcn by the Respondents amounts to an arbitrary action which punishcs thc Petitioncr unjustly. 6. Petitioner was removed from his job, family and pre-release status, placed into solitary confincment as a disciplinary action fOllowing a urine sampling that showed a false positive reading because of Petition- er's failure to determine that a food substance hc consumed contained poppy seeds. (See lab report herein corporated) . 7. The longer this matter drags out, the more Pctitioner loses by way of liberty, interest, deprivation of due process, continual emotional torment to both he and his wife and loss of good time while under Respond- ents jurisdiction and control. 8. While the urinalysis that was performed detected opiates in the Pet- itioners system, that urinalysis, in the absence of a confirmatory test, does not prove that the positive detection of opiates was caused by Pet- itioners consumption of a controlled substance, and, thus, the Respondents are able to take a disciplinary action against the Petitioner for no other reason then that the Petitioner is a prisoner. 9. As a prisoner, the Petitioner may not be entitled to the full panoply of procedural due process rights as are available to other citizens, how- ever, there is not a Constitutional mandate for the Respondent to take arbitrary disciplinary action in the absence of proef that the Petitioner committed a misconduct justifying such disciplinary action. lO. Respondent's objcctive is to drag the proceedings out as long as possible and avoid a final resolution because thc Rcspondcnts have the Petitioner in custody and thc Pctitioncr loscs an additional day of liber- ty as well as the urinc disposcd by Respondents. fI'I\ r'\ ll. If the urine is disposcd and without the confirmatory test being performed, the Rcspondcnts will havc taken a disciplinary action against the Petitioncr which is essentially capricious and arbitrary because there is no supporting evidencc that provcs that Pctitioner has commit- ted the misconduct for which he has becn punished. 12. The Respondents seek to use procedural side-stepping to avoid dealing with the substantive question of whether a retest of the urine will act- ually demonstrate that thc Respondent took disciplinary action against the Petitioner which the Pctitioncr did not descrve since a confirmatory test will demonstrate as it did on the Laboratory Report herein corporated Ben Bethea *AY-4205. That the Respondent's conclusion regarding thc Pet- itioners misconduct was crroneous. l3. Respondents seek to continue to deprive Petitioner of his Constitut- ional Rights, and the Respondents seek to perpetuate the unlawful confine- ment of the Petitioner, forcing Petitioner to suffer additional punish- ment, notwithstanding that the Petitioner has paid his debt to society by completing his minimum sentence. l4. Petitioner continually loses the opportunity to have the urine re- tested to demonstrate his innocence of the claims brought against him by the Respondents, and the Rcspondents can get away with this deprivation of rights without any available means of redress for the Petitioner. WHEREFORE, the Petitioner humbly request for Special Injunctive Re- lief to keep urine from being disposed or destroyed by Corning Laborator- ies located in Horsham, Pcnnsylvania or the Respondents, and Grant the Petitioner's original petition. Respectfully submitted, L (/ /st.'l!Z/. / ~""'v 8S:1r/1 S9 PA CONNUNI TV CORR. CTR. HARRISBURG 27 NORTH CANERON ST. HARRISBURG, PA 17101 . ,"J..f-" .' r........:.!l.\/W.,.. . .,\'..1......'. '... ."o;.'.~"'.I'.. '.. . .". ". I.I~ ~tO~ .~q'jl;;"\.v;..". "~' d~.:'".V~.,'" ... \~..:r:.Ui:l~'~;'.,'~. ..:i".:>~.;#~, :...~...'-foI"'.; "', ,'.' ......... .'_ .'~ ,~,?~J~.,...>.. .to .,,~,. ..;' ",- CORNING Clinical :. Laboratories 0""1&220 {!lEV, 4'H1 ' . . ~:; . 'II" l"~ .f"'~':"'J~:''''~, , , '. .';.' 4976 000 Duslnolll Conlor OrtYI . HorI/IIm, PA111044 . (215) 057.0300 . 800.825-7330 (PA) . lloo~25-7320 (CIIInl SIMOI' 003.007~' .' . , ~.. ., BETHEA, BEN .v ' ..-11. AY4Z05 .. 'IB s.. (MI. CdlIdId n-~ -.... 1'951&4200 ro__ M 12/2&/95 00130 .,+,. ," '1':": ................"......,. .I-'~: ..~\..w.J..J'..~.........1. -_. __"'1" ..... FINAL 1 ~O MEDS TROUTMAN 234541 CUT OFF 'l. R"__fII"Il' nJ:'TI='r.Tl='n NONE DETECTED NONE DETECTED n NONE DETECTED NONE DETECTED I'n c.,-, NONE DETECTED NONE DETECTED S FOR DRUGS I u..o > . . .:TI" SCREEN 7(WICONFIRMATION BARBITURATES PHENCYCLI DINE 0:. COC,fl ~ NE . .' Of -r;" 1000 0:. OXAZEPAM 300 OPIATES 300 -:;,C' -- DELTA-9-THC-.OOH (CA NABINOIDSI 20 OPIATES BY GC/NS (COC) OptOTFS nv r.""/~C: . MORPHINE, GC/MS' OSITIVE . I NONE DETECTED CUT-O F CONCENTRATION OR OPIATES ..r:-. MORPHINE 300 r~GIML .. 0j.1I~/r,t1 ACCEPTABLE INTEGRITY ACCEPTABLE END OF FINAL REPORT · on.L- 96--.a'" -- ... _.......... ........' ... ..... ......ro n..... ..._....If........I"'l...... .I,~.._n,~...... "" ~"'atl ...,."...,...PA,,,,,,IMv (;0 . ..' IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY CARLISLE, PENNSYLVANIA ~ r"'i MICHAEL CONWAY aka AMIN ALl BEY Petitioner I I I I I I I No I 95-6733 vs. DEPARTMENT OF CORRECTIONS MARTIN HORN, Commissioner Respondents CERTIFICATE OF SERVICE I, Michael Conway, aka Amin Ali 'Bey, do hereby certify that I am this day serving a true and correct copy of the Petitioner's Petition of a Emergency Request For special Injunctive Relief upon the persons listed belOW and in the manner indicated belowl By U.S. Certified M~il Doctor Jeff Cades Corning Clinical Laboratories 900 Business Drive Horsham, Pennsylvania 19044 1-800-825-7320 or 1-215-957-9300 Shawn P. Kenny Assistant Council 2520 Lisburn Road P.O. BOX 598 Camp Hill, pa 17001-0598 i: "'1 Isl flZ~ '~/~:N//~ Datesl :,;. , .~'" ~ r""'\ MICHAEL CONWAY, a/k/a AMIN ALl BEY, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA I I I . . v. I I I I I I CIVIL ACTION - LAW PENNSYLVANIA DEPARTMENT OF CORRECTIONS, MARTIN HORN, CODlDlillioner, Relpondents NO. 95-6733 CIVIL TERM AND NOW, ORDER OF COURT this z.~1~ day of March, 1996, upon consideration of Relpondents' Preliminary Objection in the nature of a demurrer to Petitioner's Motion for Production of Urine, for Mass Spectrometry Testing, and following oral argument,1 the preliminary objection is SUSTAINED and the motion is DISMISSED. See Wilder v. Department ot Corrections, ___ Pa. Commw. ___, ___ A.2d ___ (No. 304 M.D. 1995) (March 13, 1996) (dilmissing inmate's mandlLmus action where prereleale status was revoked due to allegedly misleading drug teet relult) .2 BY THE COURT, Shawn P. Kenny, Esq. AIsistant Counsel Department of Corrections __ ('d1tj. "..,....,:v..t 3/ ;)~/ofj~;, . P.O. Box 598 - -~ 0 .>0' lJ" ClLmp Hill, PA l700l-0598 Attorney for Respondents At Petitioner test which oral argument, Petitioner's couneel advised that was no longer representing that he would pay for the he was requesting. 2 A copy of the opinion in Wilder is attached hereto. Because of our disposition of this case, it is unnecessary to consider other preliminary objections raised by Respondents. ~ r-. ./.' :/ IN THE COMMONWEALTH COURT OF PENNSYLVANIA PAUL WILDER, . . Petition.r . . . . v. . NO. 304 M.D. 1995 . . SUBMITTED: February 9, 1996 . DEPARTMENT OF CORRECTIONS, . . Re.pondent : BEFORE : HONORABLE DAN PELLEGRINI, Judqe HONORABLE JAMES R. OLLEY, Judq. HONORABLE EMIL E. NARICK, Senior JUdqe OPINION BY JUDGE PELLEGRINI FILED: March l3, 1996 Betor. this court: are preliminary objection. tiled by th. P.nn.ylvania Dlparta.nt ot Corrections (Department) to a petition tor r.viev til.d by Paul Wilder (Petitioner). Petition.r'. petition ....ntially ...k. a vrit ot mandaau. to r.quir. the Dlparta.nt to rein.tate hia to his pre-relea.. statu.,' P.titioner alleqes that vhile servi~q a tera ot incarc.ration at a Philadelphia Community Corr.ctions Cent.r (CCC) on pr.-release status, a urinalysis report indicated that h. vas po.itiv. tor the use ot cocaine. A condition ot his pr.-relea.e proqraa va. to retrain trom the possession or use ot a controlled .ubstanc.. On March 24, 1995, a misconduct report was written and the next day,ha.was ~an.terr.d-Co the-stata.:Cor~ectional Institute (SeI) at Gratertord tor pre-hoarinq continement. Because the oriqinal misconduct report was apparently lost, a new misconduct report was written on April 4, 1995. On ~ r- Petitioner's request, a disciplinary hearing was held on the aisconduct report in which he objected to the rewriting of the aisconduct report, the timeliness of the hearing and the admission of the lab report. Petitioner alleged that the report was a false po.itive due to the fact that he was taking medication for his heart condition. The Hearing Examiner determined that Petitioner was guiltY,of the misconduct and petitioner appealed to a program Rev~ew Committee. On May 12, 1995, the program Review committee exonerated Petitioner for the misconduct and directed that an administrative hearing be set to consider his pre-release status. The CCC Center Director issued a report on May 15, 1995, stating that the staff requested that Petitioner's pre-release status be revoked and set a hearing for May 16, 1995. 'After the hearing, the Program Review Committee, headed by the Center Director, revoked Petitioner's pre-release status due to concerns that Petitioner'S presence at the CCc would constitute a threat to orderly functioning of the facility and a security threat to the community. As a result of the revocation, Petitioner was moved to :;CI-C.a" Hill.. Subsequently, staff members at SCI-calLp "i1.l. refused to support Petitioner'S request for parole and it was denied. Petitioner filed his petition for review contending that the Department's action ,in revoking his pre-release status and returning him to an SCI violated his due process rights because it 2. .' . . . ~ f""'\ " . r..xamined the alleg.d mi.conduct for which he had been exonerat.d and the lab r.port r.lied on in the prior misconduct report wae h.ar..y and lack.d a proper foundation. I The Department filed preliminary objections to the petition for r.view in the nature of a d..urr.r.z The Department argu.s that Petitioner has fail.d to show that it. revocation of his pre-rel.ase statu. and returning Ilim to the sel r.sulted in a 10.. of liblrty that i. protect.d by the due proce.s clau.e. Handamus is an extraordinary remedy through which a court of co.pet.nt jurisdiction compels a public official, board or .unicipality to perform a mandatory duty or mini.terial act where 1) the petitioner has a legal right to enforce the p.rformanc. of that act, 2) the defendant has a corre.ponding duty to perform the act, and 3) there i. no other adequate or appropriate r..edy. Lower Merion School District: v. Montaomerv Count.v Board of A..e....nt ADDeals, 642 A.2d 1142 (pa. cmwlth. 1994). petition.r contend. that he had a liberty interest in his pre-release statu., 'Petitioner was permitted to amend his petition for review and w. addre.. the allegations of the amended petition. . ~e Department also preliminarily juri.diction alleging defective service. perf.cted and by order of Novelllber 3, preliminary objection. Petitioner has .u.aary judqment. objected to this court'. On our order, ..rvice was 1995, we overruled that also filed a motion for 3. ~ r"\ #. including CCc placement,' and that the Department's revocation of hi. pre-release status violated his due proceas rights.4 In order to determine whether a constitutional violation ha. occurred, a determination mu.t initially be made that a protected liberty interest exists and, if so, what process is due. Haaa" v. Tirad,2, 896 F.SUPP, 990 (C.D. CA. 1995). Protected liberty interests may be created by either the Due Process Clauss it.elf or by state law. €di;; v. conner,.:;.::L- u.s. _, 115 S.ct. - , - ..-:.--- 2293 (1995); Wolff v. McDonnell, 418 U.S. 539 (1974). Where a liberty interest is not created by the Due Process Clause itself: States may under certain circumstances create liberty interests which are protected by the Due Process Clause. [citation omitted]. But' these interest. will be generally limited to freedom from restraint which, while not exceeding the .entence in such an unexpected manner as to give rise to protection by the Due Process Clau.e of it. own force, see, e.g., Vitek [v. Jones], 445 U.S. [480] at 493 [(1980)] (transfer to mental hospital), and Washington [v. Harper], 494 U.S. [210] at 221- 'Petitioner also asserts that numerous due process violations were made >>y tne Department in pre-hearing confinement, in rewriting the misconduct report, and in the proceedings on the misconduct report. However, because Petitioner was exonerated by the Program Review COlDlllittee on the misconduct report, all of these allegations were either addresssd or were made moot by that decision. ~ere an inmate files an action in our original jurisdiction .eeking review of Department action, our inquiry must be limitsd to , a deteraination of whether a constitutional or statutory violation ha. occurred. Lawson v. Commonwealth. Denartment of Corrections, 539 A.2d 69 (pa. cmwlth. 1988). 4. j ~ ,-... .' . 222 [(1990)] (involuntary administration of psychotropic drugs) , nonetheless imDoses atVDicel AD4 sianificant hardshiD gn thI inmate in relation ~ tba ordinarY incidents gf Drison WA. sandin, ____ U.S. at ____, 115 S.ct. at 2300. In Sandin, the prisoner, Conner, complained that his segregation in a special hOlding unit for a disciplinary misconduct that was later expunged I violated his due process rights. The Court held that "conner'~ diccipline in segregated confinement did not p~eGent the typ6 of atypical, significant deprivation in which a state might conceivably create a liberty interest" because it did not exceed other types of segregated confinement and, due to the restrictions on prisoners outside of confinement at that prison, did not work a aajor disruption in his environment. ~ at~, 115 S.ct. at 2301.' In Meachum v. Fano, 427 U.S. 215, 224 (1976), which involved transfers trom a medium security prison to a maximWl security prison, the Supreme Court held that the Due Process Clause does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner. Because the Due Process Clause is not so broad, it does not create a liberty interest in prisoners to be free from intrastate prison transfers. 'In sandin, the Supreme Court abandoned the approach used in Hewitt v. Helms, 459 U.S. 460 (1983), and the cases following it. The Court, in Hewitt, had, in the liberty interest inquiry, focused on the language of a particular regulation and not on the nature of the deprivation. 5. .o. I~ ~- I ~ ~ at 225. Moreover, the court stated, such transfers are within the normal limits of custody which the conviction authorizes the state to impose. ~ Just as in sandin and Meachum, the Due Process Clause does not create a liberty interest in a prisoner's participation in a pre-release program. Lawson, 539 A.2d at 72. There is also no I . state-created liberty interest in the pre-release status that is protected by the Due Process Clause because the revocation is not the type of deprivation of the freedom from restraint required by the Court in Sandin. ~ Haaan, 896 F.SUpp, at 995 (if an inmate placed in disciplinary segregation has no due process right to procedures established in state regulations, a fortiori an inmate placed in administrative segregation has no such due process right) . The transfer of a prisoner into an SCI imposes no "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life" because an SCI 1s the place all prisoners ordinarily expect to serve their term, and there was nothing about Petitioner's placement or conditions in sCI~Camp Hill that. was different from other residents of SCI-Camp oHill. Moreover, the prison authorities have the right to revoke a prisoner's pre-release status "for administrative or disciplinary , reasons".' 37 Pa. Code 594.3(a)(10).7 ,~ .il1.cl2 Gravson v. Rison, 945 F.2d 1064, 1067 (9thcir. 1991), wherein the Court of Appeals stated: (continued... ) 6. ~ r- Because Petitioner failed to establish a liberty interest with due process' protection, he has no clear legal right to relief and mandamus is unavailable. Accordingly, the Department'e preliminary objection is sustained and Petitioner's petition for review is dismissed. . Dl'.N '(...continued) When prison officials have legitimate administrative authority to move inmates from prison to prison or from cell to cell, the Due Process Clause imposes few restrictions on ths use of that authority, regardless of any additional motives that are claimed to exist. . .. We must allow prison officials the' freedom to exercise their administrative authority without judicial oversight. Soms administrative actions will inevitably make prisoners feel cheated;, nevertheless, this does not give them a federal cause of action. 7petitioner also arques that all of these acti~ns affected his subsequent request for parole; however, his only specific allegation is that the staff refused to support his request. There are a myriad (.f considerations for the grant of parole. and. Petit~~er is giVen lhe chance to present his argument. . That the Gtaff 'at. SCI~Cillll~' Hill, who were apparently not involved in the misconduct: repo~1: or revocation .of pre-release status, chooses not to s~ppor.t hi~ ~3(iUest does not implicate any due process rights or liberty inte~~Nt~. . . l'etit:ionor also mentioned in his petition for review a viCl:'.at.ion -of--the -"I; CoU...- -eonsent-Decree"-'which -is apparently a reference to a Consent Decree entered into as a result of a class action suit filed in federal court. by the Imprisoned Citizens Union. As argued by the Department, we can see no basis for jurisdiction in this court to address alleged violations of the Consent Decree. . 7. . . . '. r"""\ r-. 4/"/'lf# IN TilE COURT OF COMMON PLEAS, CUMBERLAND COUNTY CARLISLE, PENNSYLVANIA Michael conway,AKA Amin Ali Bey,Pettioner VS. civil Term Pennsylvania Department of Corrections,Martin lIorn. comissioner, Respondents No.95-6733 No. 371# HlJ(,.. }"If(" Notice of Appeal Notice is given that Michael Conway AKA Amin Ali Bey, Pettioner. hereby appeals to the Superior Court Of Pennsylvania from the order entered in this matter on the 25th day of March. 1996. This order has been entered in the docket as evidenced by the attached copy of the docket entry, Filed Pro.Se By: \ 1~. N ~ - i l'~J ,.-,: 'l'~ , tf\ c2~ ., \'.' .,. .:~-' .- . Lr' '1 0 h , - , ~ i'i'l 'F U . .U- I ... ,r; .l " II. ~. ..~, .' .. . o . - . ~ ,-.., MICHAEL CONWAY, a/k/a AMIN ALl BEY, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : : v. CIVIL ACTION - LAW PENNSYLVANIA DEPARTMENT OF CORRECTIONS, MARTIN HORN, commi..ioner, Reepondents NO. 95-6733 CIVIL TERM ORDER OF COURT AND NOW, this 2.~t~ day of March, 1996, upon consideration of Respondents' Preliminary Objection in the nature of a demurrer to Petitioner's Motion for Production of Urine, for Mass Spectrometry Testing, and following oral argument,l the preliminary objection is SUSTAINED and the motion is DISMISSED. See Wilder v. Department of Corrections, ___ Pa. Commw. ___' ___ A.2d ___ (NO. 304 M.D. 1995) (March l3, 1996) (dismiesing inmate's mandamus action where prerelease status was revoked due to allegedly misleading drug test result) .2 BY THE COURT, Shawn P. Kenny, Esq. Assistant Counsel Department of Corrections P.O. Box 598 Camp Hill, PA l700l-0598 Attorney for Respondents At Petitioner teet which oral argument, Petitioner's counsel advised that was no longer representing that he would pay for the he was requesting. 2 A copy of the opinion in Wilder is attached hereto. Because of our disposition of this case, it is unnecessary . PYS510 1995-06733 Cumberland county Prothonotary's ~ff1ce Page ~Civil Case Inquiry ~ CONWAY MICHAEL ~T AL (VS) PENNSYLVANIA D~,. CORRECTIONS 1 Reference No..: Filed.. ......1 ll/28/1995 Ca.. TYp......: MOTION Time.........: 2:26 Judgmsht......: .00 Execution Date 0/00/0000 Judge Assignedl OLER J WESLEY JR Sat/Dis/Gntd.. 0/00/0000 Jury Trial. . . . Higher Court 1 lIiQher Court 2 .........***.******.***...........................**...f........................ Gsneral Index Attorney Info CONWAY MICHAEL PLAINTIFF PRO SE 1120 PIKE 5'1' POBOX 999 SMITHFIELD PA 16652 BEY AMIN ALl PLAINTIFF PRO SE PO BOX 200 CAMP HILL PA 17011 PENNSYLVANIA DEPARTMENT OF DEFENDANT CORRECTIONS PO BOX 598 CAMP HILL PA l7001 0598 ******************************************************************************** * Oat. Entries * ........**.***.**.***......**..***....**..........***..............*..****..**.. MOTION FOR PRODUCTION OF URINE FOR MASS SPECTROMETRY TESTING ORDER OF COURT DATED ll/22/95 IN RE MOTION IFP GRANTED BY J WESLEY OLER JR J COPIES MAILED 11/28/95 ORDER OF COURT DATED 11/22/95 IN RE MOTION RULE TO SHOW CAUSE ISSUED UPON RESPONDENT RULE RETURNABLE 20 DAYS AFTER SERVICE BY J WESLEY OLER JR COPIES MAILED 11/28695 RESPONDENTS' ANSWER TO RULE TO SHOW CAUSE OR ER DATED 11/22/95 MANDAMUS AND OBJECTIONS TO RESPONDENTS ANSWER TO RULE TO SHOW CAUSE ORDER ORDER OF COURT - DATED 1/10/96 - HEA,ING 3/22/96 1:30 PM CR 5 - BY J WESLEY OLER JR J - COPlES MAILED 1 10/96 APPLICATION TO ADMIT DOCUMENTARY EVIDENCE MOTION REQUESTING TO TAKE D,POSITION AND DISCOVERY ORDER OF COURT - DATED 1/29 96 - IN RE MOTION RE8UESTING TO TAKE DEPOSITION AND DISCOVeRY - ULE ISSUED UPON RESP NDENTS RETURNABLE W,TH{N 20 DAYS OF SERVICE - BY J WESLEY OLER JR J - COPIES MAILED 1 29 96 A PL CATION TO ADMIT DOCUMENTARY EVIDENCE MOTION FOR APPOINTMENT OF COUNSEL RESPONDENTS' RESPONSE TO RULE TO SHOW CAUSE ORDER DATED JANUARY 29 1996 ORDER OF COURT - DATED 2/21/96 - IN RE MOTION FOR APPOINTMENT OF COUNSEL - PUBLIC DEFENDER IS APPOINTED TO REPRESENT THE PETITIONER BY J WESLEY OLER JR J - COPIES MAILED 2/2l/96 02/122/196 APPLICATION TO ADMIT DOC~ENTARY EVIDENCE 02 22 96 g~~~~A~FI~9HneTiv~A~~~I~F2~/ggCUM~~TR~0~~K~g~~C~oR~8~f~e b~~ENDER OFFICE - BY J WESLEY OLE' J, J - COPY MAILED 2/23/96 03/25/96 ORDER OF COURT - DATED 3 25 96 - RESPONDENTS PRELIMINARY OBJECTION SUSTAINED - MOTION FOR PRODUCTION OF URINE FOR MASS SPECT,OMETRY TESTING DISMISSED - BY J WE~LEY OLER JR J - COPY MAILED 3 25/96 03/27/96 ORDER OF COURT - DATED 3/22 96 - IN RE RESPONDENTS' PRELIMINARY OBJECTIONS - TAKEN UNDER AD ISEMENT - BY J WESLEY OLER JR - COPIES MAILED 3/22/96 04/11/96 APPEAL TO THE SUPERIOR COURT - ORDER OF 3/25/96 J WESLEY OLER JR JUDGE ..**..**.***.***.****...........**.***.......................................... * End of Case Information * ........****........................................**................**........ 11/28/95 11/28/95 11/28/95 12/18/95 12/29/95 01/10/96 8Hj~~U 01/29/96 8j~8R~/I~ 02/20 96 02/21/96 , '. .-- r--. . .. ..,~ MICHAEL CONWAY, a/k/a AKIN AI.I BEY, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : .. :. : , : : i. : : . . . . : , '~ v. CIVIL ACTION - LAW .., ~ .., , PENNSYLVANIA DEPARTMENT OF CORRECTIONS, MARTIN HORN, Commissioner, Respondents NO. 95-6733 CIVIL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., May 21, 1996. In this action in the nature of a mandamus proceedingl an inmate of a state correctional institution has appealed pro ee from an order of this court sustaining Respondents' preliminary objections and dismissing the action. This opinion in support of the court's order is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). PROCEDURAL HISTORY: STATEMENT OF FACTS Petitioner is Michael Conway, also known as Amin Ali Bey. At the time of the initiation of this action he was an inmate at the state Correctional Institution at Camp Hill in Cumberland County, Pennsylvania; he is presently an inmate at the State Correctional Inetitution at Smithfield in Huntingdon County. Respondents are the Pennsylvania Department of Corrections, and Commissioner Martin Horn. On November 22, 1995, Petitioner filed with the Cumberland County Prothonotary a document entitled "Motion for production of Urine, for Mass Spectrometry Testing." The gist of the motion was The document filed by Petitioner to institute the action was entitled "Motion for Production of Urine, for Mass Spectrometry Testing." The relief requested is discussed in the text infra. ,. ~ r-, . NO. 95-6733 CIVIL TBRM that Petitioner had been in a prereleaae proqram at a halfway houae in Harriaburq, that a random teet of hie urine produced a poaitive reault for opiatee, that ae a reault of the teet he wae removed from the halfway houee and returned to a atate correctional inatitution, that a parole releaee which he had anticipated wae not at thie time beinq recommended, and that the teet reeult muat have been cauaed by hia coneumption of "a eteady quantity" of ealad dreeeinq containinq poppy aeede. In eupport of the latter proposition, Petitioner attached an excerpt from a newepaper or maqazine article, reading ae followe, Watch those poppy seeds Ae druq ecreeninq is becominq more common in the workplace, it'e amazinq what can ekew the reeulta. In fact, you miqht want to akip that poppy aeed baqel if a druq teet ie on your aqenda. Dr. Paul Oreulak, profeeeor of peychiatry at the Univereity of Texae Southweetern Medical Center in Dallae, saye that even the emall amount of opium in one baqel topped with poppy seeds miqht not alter your mood, but it can cause a positive reBult in some routine druq-screeninq tests. The motion contended that the Department'e actione conetituted a violation of Petitioner's due process riqhts. It aseerted that he "hard] been deprived of his liberty based on the miBleadinq reeulte of a scientific procedure." The motion included an offer by Petitioner to bear the expenee of a more sophisticated teBt of his urine. Relief requeBted by the 2 . ,. ~ ,-.. NO. 95-6733 CIVIL TERM Petitioner wae an order directing the Dspartment to retest the urine and to return him to his previous etatue. The motion of Petitioner also included a request that he be permitted to proceed in forma pauperis. The court granted this request.2 A nwnber of preliminary objections to petitioner'e motion were filed by Reepondenh on December 18, 1995. These included an objection baeed upon the abeence of a proper method of commencing the action2 and a demurrer. In response to an additional request by Petitioner for free legal representation, the court appointed couneel to represent hilll.. Argument on Respondente' preliminary objections wae heard by thie court on March 22, 1996. At the argument, Petitioner'S counsel indicated that his client wae no longer representing that he would bear the cost of a new test." Pollowing the argument, the court ieeued the order presently on appeal I AND NOW, this 25th day of March, 1996, upon consideration of Respondents' Preliminary Objection in the nature of a demurrer to Petitioner's Motion for Production of Urine, Order of Court, November 22, 1995. 3 Sse Pa. R.C.P. 1007 (civil action to be commenced by filing of praecipe for writ of summons or complaint). 2 . Order of Court, February 2l, 1996. See Order of Court, March 25, 1996 (note l). 3 I . .. -- ,...., NO. 95-6733 CIVIL TBRM for Mass Spectrometry Testing, and following oral argument, the preliminary objection is SUSTAINED and the motion is DISMISSED. Sse Wilder v. Department of Corrections, ___ Pat Commw. _, [673] A.2d [30] (No. 304 M.D. 1995) (March l3, 1996) (dismissing inmate's mandamus action where prerelease status was revoked due to allegedly misleading drug test result).' DISCUSSION In Wilder v. Department of Corrections, Pa. Commw.___, 673 A.2d 30 (1996), the Commonwealth Court addressed a petition of an inmate at a state correctional institution which "essentially [eought] a writ of mandamus to require the Department [of Corrections] to reinstate him to his pre-release status [at a half- way houee]. ,,7 In Wilder, a revocation of the petitioner'. prerelease status, and his return to a state prison where parole wae no longer being recommended, had been prompted by a fal.. positive urine test for cocaine - a result of his use of medication. In sustaining a demurrer filed by the Department of Corrections to the inmate's petition, the Wilder Court first noted that "[m]andamus is an extraordinary remedy through which a court , Order of Court, March 25, 1996 (footnotes omitted). A copy of the Commonwealth Court'. opinion in Wilder was attached to the order. 7 Wilder V. Department of Corrections, ___ Pa. Commw. ___, 673 A.2d 30, 3l (l996). 4 .. ~ ~ NO. 95-6733 CIVIL TBRM of competent jurisdiction compeb a public official, board or municipality to perform a mandatory duty or ministerial act where (1) the petitioner has a legal right to enforce the performance of that act, (2) the defendant has a corresponding duty to perform the act, and (3) there is no other adequate or appropriate remedy."" Petitioner contends that he had a liberty interest in his pre-release status, including the [halfway house] placement, and that the Department's revocation of his pre-release status violated his due process rights. In order to determine whether a constitutional violation has occurred, a determination must initially be made that a protected liberty interest existe and, if so, what process is due. Protected liberty interests may be created by either the Due Process Clause itself or by state law.- After analyzing a number of cases in this area, the Commonwealth Court in Wilder held that "the Due Process Clause does not create a liberty interest in a prisoner's participation in a pre-releaee program."IO The Court further held that "[t]here is also no state-created liberty interest in the pre-release status that is protected by the Due Process Clause because the revocation is not the type of deprivation of the freedom from restraint required ...."11 I Id. at 673 A.2d at 3l-32. -, - Id. at 673 A.2d at 32 (citations omitted) . -, 10 Id. 11 Id. 5 -- ,. NO. 95-6733 CIVIL TERM "Because [the p]etitloner failed to establish a liberty intere.t with due proce88 protection," the Commonwealth Court concluded in Wilder, "he ha[d] no clear legal right to relief and mandamu8 [was] unavailable."u Accordingly, "the [Department of Corrections'] preliminary objection [was] sustained . . . . uU The alleged facts of the present case, and the relief sought by Petitioner, are so similar to those addressed by the CODllllonwealth Court in Commonwealth v. Wi1der,u that a ruling in favor of Petitioner would, in this court's view, have represented an unwarranted disregard of applicable authority. For these reasons, the order dismissing Petitioner's motion was entered. 12 Id. at ___, 673 A.2d at 33. Id. 13 U _ Pa. Commw. _, 673 A.2d 30 (l996)/ see also Lawson v. Commonwealth of Pennsylvania, Department of Corrections, 114 Pa. Commw. 573, 539 A.2d 69 (l9BB)/ Lott v. Arroyo, 7B5 F. Supp. SOB (B.D. Pa. 1991). This court has not attempted to construe Petitioner's motion a8 a habeas corpus petition. He has not alleged that Cumberland County was the source of his sentence, as would be nece.eary for a challenge in this court to the legality of his continued incarceration, under Pennsylvania Rule of Criminal Procedure l70l(a). Nor has he challenged the conditions of his confinement as that term is commonly understood under Rule l701(b). Because of the court's disposition of this case, it is unnecessary to discuss other preliminary objections raised by Reepondents. This court has also not undertaken sua sponte a review of whether Petitioner's action might more appropriately have been filed as a petition for review or other request for relief in the Commonwealth Court. 6 ~ . ~ It. MICHAEL CONWAY, A/K/A AMIN ALI BEY V. PENNSYLVANIA DEPARTMENT OF CORRECTION, MARTIN HORN, COMMISSIONER IN THE SUPERIOR COURT OF PENNSYLVANIA 9s- I.. 7.3..3 C.ui l ICt:L1Y\ No. 376 HARRISBURG 1996 ORDER QE COURT The above-captioned appeal is transferred sua sponte to Commonwealth Court. 42 Pa. C.S. 762 (a). PER CURIAM DATE: June 11, 1996 TRUE AND CORRECT COPY Al1ESTI June l2, 1996 . ~~~_, "-~IJI _ Ch ef Clark 8 \D !? ',c <n ~~ e '!~ .... "1 - Z" ~~ (Jl~. W ..... ~I.;. ~ ~r ~~ 'r (~: - ~ -. .. .... c..> ~ =! w ... " ," f"'!>. 06/18/96 1404 SUPERIOR COURT OF PENNSYLVANIA OFFICIAL DOCKET DOCKET " 00376HBG96 FULL CAPTION OOlT MICHAEL CONWAY, a/k/a AMIN ALl BEY V 002E PENNSYLVANIA DEPARTMENT OF CORRECTIONS, MARTIN HORN, COMMISSINER Y0943 MICHAEL CONWAY INMATE NO BS-8919 SMITHFIELD POBOX 999, 1120 PIKE ST HUNTINGDON, PA 16652 51797 SHAWN P KENNY 2520 LISBURN ROAD POBOX 598 CAMP HILL, PA 17001-0598 CONSOLIDATED DOCKET NUMBER BACKGROUND DATA TRIAL COURT RECORDS CATEGORY: COURT NAME: COUNTY: JUDICIAL DISTRICT: CASE TYPE/CHARGE: TRIAL COURT CHARGES: JUDGE (S) : DISPOSITION TYPE: DISPOSITION DATE: APPEAL FILE DATE: DISPOSITION ENTERED: TRIAL CRT DOCKET NO.: OFFENSE TRACKING NO. : COUNSEL TITLE PRO SE 717-975-4864 CV CIVIL CUMBERLAND 09 () f. ~[t: O~~Ij ~r 111.:: ~i:"' rc ~() ~c' CIVIL ACTION 0. COMPLAINT - OLER, J ORDER ENTERED 03/25/96 04/11/96 95-6733 STATUS INFORMATION DOCKET ENTRIES FOR 05/14/96 NOTICE OF APPEAL IFP 001T 05/14/96 DOCKETING STATEMENT EXITED OOlT 05/30/96 DOCKETING STATEMENT RECEIVED OS/28/96 DOCKETING STATEMENT DUE 06/11/96 TRANSFERRED TO COMMONWEALTH COURT SUA SPONTE T~APPELLANT E;APPELLEE *;COURT APPOINTED FOR MAIL 001T Y 002E Y ,0 0 0' -n , ~~i ::~ -,... ,.0 -n ;") ~ ~!~ ~ ~2 - ~ - .. N ~. -.I ~ , -- ".. ~rsl. ~ DAVID A.IZlWCZlK. ESOUIRE "OfHOJrtOtAlI'T 'VI4t ,tuptrior UJourt of 'Jtntu1\!luanht 18ffiet of t4t llrot4onobtrt! P. O. BOX 8300 .3.IAAIN CAPITOL BUILDING HARRISBURO, PENNSYLVANIA 171DB 17171772"2U PATRICIAA,__" Whittaker CH.lfClUIIl MEMORANDUM Datel June l8, 1996 TOI Lawrence E. Welker, Prothonotary Cumberland County g -g. q. "8~\ ~.~ ~~'~'~J~ t..,r ' \ U:J .) u'l.'\ ?,\ ~;~\. r';6 ~~;l -- ~(" "C" ::: ,~~ "0)"\ _ .. ,-. Martin 'H~rn,~omaL ", Froml Patricia A. Whittaker, Chief Office of the Prothonotary Rei Conway v. Pa. Dept. of Corrections, NO. 376 Harrisburg, 1996 C.P. Court Cumberland Co. Civil 95-6733 The record for the above-captioned case is being returned for the following I ____Compliance with Pa. R.A.P. 1925(a), Opinion ____To be properly assembled Pa. R.A.P. 1931 "Exhibits Only" returned - shall be requested by ---- the Court, if necessary t-Other - June ll, 1996 Transferred to Commonwealth Court Sua Sponte PWI ~ 1""", IN THL COMMONWEALTH COURT OF PENN~~LVANIA NOTICE OF DOCKETING APPEAL Docket No: 1954 C.D. 1996 Filed Date: 07/18/96 Deemed Received: 04/11/96 Re: CONWAY v. PA DEPT. OF CORRECTIONS et al. Lower Court No.: 95-6733 A Notice of Appeal, a copy of which is enclosed, from an order of your court has bsen docketed in the commonwealth Court of Pennsylvania. The docket number in the commonwealth Court is endorsed on this notice. The commonwealth Court docket number must be on all correspondence and documents filed with the Court. Under Chapter 19 of the Pel;nsylvania Rules of Appellate procedure, the Notice of Appeal has the effect of directing the Court to transmit the certified record in the matter to the Prothonotary of the commonwealth Court. The complete record, including the opinion of the trial jUdge, should be forwarded to the commonwealth court within forty (40) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. Pa. R.A.P. 1921 to 1933 provides the standards for preparation, certification and transmission of the record. The address to which the Court is to transmit the record is set forth on page 2 of this notice. NOTICE TO COUNSEL A copy of this notice is being sent to all parties or counsel indicated on the proof of service accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record in the commonwealth Court. Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa. R.A.P. 907(b). Appellant or Appellant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the zoning Ordinance must accompany records in Zoning Appeal cases). The addressss to which you are to transmit documents to this Court are set forth on Page 2 of this Notice. If you have special needs, please contact this court in writing as soon as possible. Lower Court Judge: 1I0norable J. Wesley oler Jr. Attorney I Michael conway Attorney: Shawn P. Kenny Notices Exit: 07/25/96 ,() f;\ n ',' prothonotary ,: ., .." Ii....; ,r-,l ',') . I , .~.) :;1 j. - I.'J -,111 . ~ -J , '. c'.l ,~ '., :':. " . .. ~-'~ ...J .--";." ...' tiS" , Addr..^l wri~t.n e Wlicaticnl"'"':c: Otfic. ot the Prathonat:aJ:y COllllllonwulth Court: at l'ennaylvania P. o. Box U730 Harriaburq, PA 17108 rUinq. uy b. iliad. J,n DarSOft at the tollowinq adc!n.. (exc.pt on Saturday., Sunday. and l.qal Holiday. ="rv~ by. Penn.ylvania Courta) batwe.n 9:00 a.lII. and 4:00 p.lII. Office ot the c:biet Clark COllllllclftwealth Court: at l'ennaylvania Rea 124 Sixth rlool:' South Office BuUc1inq Sarruburv, PA 17120 (717) 187-5884 Pl..dinq. and .ailAl:' pap.rs (but not paparJ:loolc:II or c.rtified record.) uy d.o b. tiled ill ".rson emly at: Ottice ot the P.ftJthonotary Commonwealth Court at Pann.Ylvania rilinq Of tic. ' suite 990 Th. Widenar Buildinq On. South Penn Square Philadelphia, PA 19107 (21~) 560-5742 The hours ot the PhilAdelphia Filinq ottic. are 9:00 a.lII. to 4:00 p.lII. Under PA. R.A.P. 3702, writs or other proce.. ia.uinq out ot the COllllllonwealth Court Ihall exit only troll the Karriaburq Ottica and .hall ba r.turnable thereto. " t""\ . ,~ 00376 HBG 96 - ~ Docketed rn SUllerror Court r MAY 1 41996 ~ CJl HnHAISBUAG ~ - IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY CARLISLE, PENNSYLVANIA f Michael Conway, AKA , Amin Ali Bey,Pettioner /f5/fL!.lT/f'f'6 va. civil Term , " , I . , , I , .., '. , , , , " : .1 : Je Pennsylvania Department of Corrections,Martin Horn. comi8sioner, Respondents No.95-6733 Notice of ADDeal J f ~ Notice is given that Michael Conway AKA Amin Ali Bey, pettioner, hereby appeals to the superior Court Of Pennsylvania from the order entered in this matter on the 25th day of March. 1996. This order has been entered in the docket as evidenced by the attached copy of the docket entry. TRUE COpy FROM Rt:CORD In Tc:tlm~n'{ .,'.IN.I~', I iI.ra v~IO set my hand arod the seal of sa:d Cou.-~ at CJrllslc, Pa, This ..,ril..~, day of..J.?.l.~.." 19..1.iR. ~ /" ...:e~I.J..,............ .............. ....L..4. ....~.. ~1:>td-' Prothonotary Filed Pro.Se By: ~'J , 1:~0: _ >\~~ -'M'chael conw~ ';' ~ \ MBS-B919,Smit~f1eld P.O. Box 999.1120 Pike ST. Huntingdon. Pa. 16652 ,... I'" .... II . ., " I .,..~ l "'j ../- ~ - . . ~ NO'rICIl '" The Common~ulth Court 1s 1nstitut~q a new ..rvice in crder to .peed copias ot orders and opinions to attorney. lit:iqat~q casa. in this Ccurt. We will FAX copies ot all orders and opinions in a qiven case to counsel upon written request: anti the payr.em: ot a $50.00 .ervice charqe. , It 10U wish to avail yourself to this service, please till out and rel:urn the intomation below anti attach Ii check utie payal:le to the CO:conwealth Court at Pennsylvania in the amount ot $50.00. BE SURE TO INC:.uOE THE COC!<ET N'CMBER OF THE CASE. -------------------------------- ---------~ ~----- .. ----- I desire to nave all artiers or opinicns in the Qelow cap:icned C3se taxed l:O =e. Nat::e I Esq. Cockel: Nw:J::er FAX Nu:::ter C&pl::'on Siqnal:UrB t:1B . ' . . . ~. i:-- .. o~ &u;aR 2.5, UI. naB frI CDl'DII I'ml pn'..... eatnlft......y... Cl:aD:b- aR:rCll~r, &1m OJII/ eaft IIot1oll to~ lZtudoll (21ld - 'lD., 3~ I -="'I'IU1: _ '25.) '~.ea1p.. MaUall to Dblli../Qu..b Mot1oll to~ IUpenede.. '~el11W1UT ~eaUoUl a11 '~e-'fl'1al IIoUOIl. aRJ'12T1IlU. &1m ftn eawnll ..t1Uoll to~ led.. - fll. ..t1UoD t~~Jezm1..10D to appeal - $11. (C.D.,) 'eUUOIl to~ hri.. o~ appnla IlUfta .reI 'PrlfIa . UL. . 1:111 (b) ht1UoD to~ led.. - 'II. 'et1t1oll to~ lecoUlide~UOD of '!Ilqle 3Udi. a~den - OI'1;iDal .nariacUatiOIl - '15. lXaeptbUl ml%II'!'WaY. DIn ~~~___ C!altD8 '.UUOIl to~ "aoUlide~.UOD of '1:;le .n&die , a&'de~a - appellate .ruriacUatioll - '15. Mot1oD to fUbl!.b op1llioll . '.t1t1oD for ..azvu-en1: III I&DC - '11. "~....-.rr::P!.. c:!nllftJl Inefa M"oraa of Law .:rml'l' eoJlDI!I ..P~duced a.corda