IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William Santiago,
Petitioner
v.
John E. Wetzel, John Kerestes,
Captain Steven G. Datchko, Ms.
Hudson, Ms. Luquis, Scott Miller,
Dorina Varner, Tracy Williams,
Respondents
BEFORE:
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:
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: No. 664 M.D. 2012
: Submitted: January 31, 2014
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HONORABLE DAN PELLEGRINI, President Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI
FILED: February 21, 2014
Before this Court are the preliminary objections of John E. Wetzel,
John Kerestes, Captain Steven G. Datchko, Ms. Hudson, Ms. Luquis, Scott Miller,
Dorina Varner and Tracy Williams, employees of the Pennsylvania Department of
Corrections (Department), to a pro se petition for review in the nature of a request
for a writ of mandamus filed by William Santiago (Santiago) seeking the return of
$1,275.00 that he alleges was improperly seized by the Department from his
inmate account in violation of his due process rights. We sustain the preliminary
objections and dismiss the petition for review.
Santiago is an inmate currently housed at SCI-Greene.
He was
formerly housed at SCI-Mahanoy. In August 2011, while Santiago was at SCIMahanoy, the Security Office received information that he was receiving numerous
money deposits in his J-Pay inmate account from the families of other SCIMahanoy inmates, which is against the Department’s policy.1 The Security Office
also received anonymous letters that Santiago was receiving drugs smuggled into
SCI-Mahanoy by one of his visitors.
Based on this information, the Security Office began to review
Santiago’s visit history and monitor his visits and activities in the institution. The
Security Office noticed that on May 20, 2011, Lizette Grundy (Grundy) started to
regularly visit Santiago. On November 11, 2011, Grundy visited Santiago and he
was observed via closed-circuit television pulling his hand out of a potato chip bag
and placing something into his mouth other than a potato chip. On November 19,
2011, Grundy was interviewed by a Pennsylvania State Trooper and the Security
Captain and admitted that Santiago had asked her on her first visit to bring drugs
into SCI-Mahanoy. Grundy stated that at later visits on August 26, 2011, October
1
Santiago concedes that it is against Department policy for him to transfer or to receive
negotiable instruments, money or items of monetary value from the immediate family of inmates
or ex-offenders without the prior approval of the Facility Manager. Section 91.1 of the
Department’s regulations, 37 Pa. Code §91.1, defines “contraband,” in pertinent part, as
“[m]aterial listed as contraband in … the Department of Corrections Inmate Handbook, or any
Department document that is disseminated to inmates, such as material that an inmate is
prohibited from possessing….” See also DC-ADM 815 §3.C.1. (“Contraband is defined as any
item possessed by an inmate or found within the facility that is … expressly prohibited by those
legally charged with the administration and operation of the facility…. Contraband falls into the
following categories: … an article specifically prohibited by … Department policy, or
regulation….”
2
14, 2011, and November 11, 2011, she brought marijuana into SCI-Mahanoy for
Santiago. Grundy stated that she obtained the drugs for the first two deliveries
from Santiago’s mother and sister, and that she obtained the five balloons of
marijuana for the third delivery from the girlfriend of a former inmate later
identified as Rashad Ibrahiem.
The Security Office also monitored the activities of inmates whose
family members had placed money in Santiago’s J-Pay account. On September 14,
2011, Inmate Taalibdin, FG-3912, was observed via closed-circuit television
smoking what appeared to be marijuana in the yard.
A Security Office
investigation ensued and Inmate Taalibdin received disciplinary custody time as a
sanction for his drug use. A review of Santiago’s J-Pay account showed that
Inmate Taalibdin’s family had placed money into the account on three occasions
totaling $550.00.
The Security Office also found that on November 1, 2011, Marianne
Kinner, mother of Inmate Hibbs, JU-8872, placed $100.00 in Santiago’s J-Pay
account. The Security Office administered an investigative urine test on Inmate
Hibbs which showed a positive result for marijuana.
On November 19, 2011, Santiago was placed in administrative
custody in a Restricted Housing Unit (RHU) pending an investigation into the drug
sales.
On November 21, 2011, Santiago was interviewed and denied any
involvement, claiming that Grundy was lying. That same day, $1,165.00 was
removed from Santiago’s J-Pay account and placed into an escrow account leaving
3
a balance of $544.21.
On December 21, 2011, $50.00 was deposited into
Santiago’s J-Pay account by Morney Lowrey, but was moved into the escrow
account, leaving a balance of $522.76. On January 12, 2012, $60.00 was deposited
into Santiago’s J-Pay account by Lisa Davis, but was moved into the escrow
account, leaving a balance of $483.24.
On January 30, 2012, a Misconduct Report was issued2 alleging three
charges: Class I Charge #26, a violation of Section 903 of the Crimes Code, 18
Pa. C.S. §903, Criminal Conspiracy; Class I Charge #36, possession of contraband;
and Class I Charge #42, lying to an employee. On February 6, 2012, a hearing was
conducted before a Hearing Examiner. Santiago pleaded not guilty and reiterated
his written denial of the charges. After reviewing all of the evidence, including
recordings of the activities captured on closed-circuit television; review of a
printout of Santiago’s J-Pay account history; and the Misconduct Report
containing the audit results and Grundy’s admissions, the Hearing Examiner
adjudged Santiago guilty of Charge #26 and Charge #36. The Hearing Examiner
adjudged Santiago not guilty of Charge #42.
In the Misconduct Report disposing of the charges, the Hearing
Examiner specifically found as fact, based on the credible evidence, that the
Department had completed an audit of Santiago’s J-Pay account, and it was
discovered that he had received a total of approximately $2,935.00 from other
2
Two prior Misconduct Reports had been issued but dismissed without prejudice to
permit recharge without a determination of guilt or innocence.
4
inmates’ families, of which he had received $550.00 from Inmate Taalibdin’s
family and $100.00 from Inmate Hibbs’ mother. (Petition Exhibit A at 8-10).
Based on these findings, the Hearing Examiner imposed a sanction of
a total of 180 days detention in the RHU with no contact3 and to “‘Revoke All
Contraband’ (if found).” (Petition Exhibit A at 14). Santiago did not appeal the
Hearing Examiner’s decision. See DC-ADM 801 §5.
Rather, that same day, Santiago submitted a request to Inmate
Accounts asking when the money held in escrow would be released back into his
account. On February 7, 2012, he was instructed by Ms. Hudson to contact the
Security Office. On February 8, 2012, Santiago submitted a request to the Security
Office asking when the money in escrow would be released. The following day,
Captain Datchko replied, “Your account will be opened as soon as all the money
you received from other inmates/families is removed and placed in the [Internal
General Welfare Fund (IGWF)]….” (Petition Exhibit C at 2).
On February 17, 2012, Santiago filed an Official Inmate Grievance on
Form DC-804 alleging that the Security Office’s removal of the money from his
account violated his due process rights because the sanction imposed by the
Hearing Examiner said nothing about freezing his money or assessing his account.
In an Initial Review Response dated March 1, 2012, the Grievance Coordinator,
Scott Miller, denied the grievance on the basis that it related to his misconduct
3
See DC-ADM 801, §4.A.7.
5
which indicated that the contraband be removed and that the $50.00 and $60.00
that had been removed were placed back into his J-Pay account. (See Petition
Exhibit D at 3). On March 20, 2012, the Facility Manager, John Kerestes, denied
Santiago’s initial appeal of the grievance adopting the Grievance Coordinator’s
rationale.
On April 20, 2012, Santiago appealed the Facility Manager’s decision
to the Secretary’s Office of Inmate Grievances & Appeals, alleging that the
Grievance Coordinator’s determination that $50.00 and $60.00 were returned to his
J-Pay account is arbitrary or unsubstantiated, and that the initial removal of the
money from his account was improper because there was no illegality and it was
not sent from other inmates’ families. On May 21, 2012, the Chief Grievance
Officer dismissed the grievance on the basis that it related to an appeal of the
misconduct under DC-ADM 801 and was not a grievance under DC-ADM 804.
(See Petition Exhibit D at 7).
On November 9, 2012, Santiago filed the instant petition seeking
mandamus relief4 to compel the Department to return the $1,275.00 seized from his
account. Santiago first claims that the Department violated his due process rights
because it seized the money in his J-Pay account without prior notice or the
imposition of a sanction, and that there is insufficient evidence to support the
4
Relief in mandamus will be granted to compel the performance of a ministerial act
where the plaintiff establishes a clear legal right to relief and a corresponding duty to act by the
defendant. Williams v. Pennsylvania Department of Corrections, 47 A.3d 162, 165 n.2 (Pa.
Cmwlth. 2012).
6
seizure as a sanction for his misconduct convictions. Santiago also claims that the
$1,275.00 could not be seized because he was not charged with violating the
Department’s policy regarding the receipt of money from the immediate family of
inmates and he was not provided with an assessment hearing. The Department
filed preliminary objections5 alleging that Santiago was not entitled to a predeprivation hearing because the res at issue is contraband; that he did receive due
process through the post-deprivation misconduct hearing; and that his due process
claim is actually an attempt to circumvent the prohibition against appealing his
misconduct convictions.6
Insofar as Santiago claims that he is entitled to a hearing on whether
the Department properly refused to return the funds from his account, as noted
above, the Hearing Examiner specifically found that the Department had
completed an audit of Santiago’s J-Pay account, and it was discovered that he had
received approximately $2,935.00 from other inmates’ families and Santiago did
not appeal her decision.
Based on that finding, Santiago does not possess a
5
“In ruling upon preliminary objections in the nature of a demurrer, the Court must
accept as true all well-pled facts and all reasonable inferences deducible therefrom, and it must
determine whether the facts pled are legally sufficient to permit the action to continue.” Gordon
v. Pennsylvania Department of Corrections, 16 A.3d 1173, 1176 n.2 (Pa. Cmwlth. 2010). “In
that a demurrer results in the dismissal of a suit, it should be sustained only in cases that are clear
and free from doubt and only where it appears with certainty that the law permits no recovery
under the allegations pleaded.” Id. All doubts must be resolved against sustaining the demurrer.
Bundy v. Beard, 924 A.2d 723, 725 n.2 (Pa. Cmwlth.), aff’d, 596 Pa. 103, 941 A.2d 646 (2007),
cert. denied, 553 U.S. 1098 (2008).
6
It also alleges that the petition fails to conform to Pa. R.A.P. 1513(c) because it is not
divided into consecutively-numbered paragraphs with each containing a single allegation.
7
protectable property interest in the unapproved funds that were deposited by the
immediate family of inmates into his J-Pay account because such funds are
contraband under Department policy and the Department’s seizure of such
contraband is not improper.7 See, e.g., Steffey v. Orman, 461 F.3d 1218, 1222-23
(10th Cir. 2006) (holding that an inmate did not have a legitimate claim of
entitlement to a $50.00 money order sent in violation of a prison regulation
prohibiting an inmate from receiving money from the family members of other
inmates and the prison’s confiscation of the money order did not violate the
prisoner’s due process rights); Lowery v. Cuyler, 521 F. Supp. 430, 432 (E.D. Pa.
1981) (holding that an inmate cannot have a property interest in $1,045.00 in cash
confiscated from his cell under a prison regulation and deposited in the IGWF and
the confiscation did not violate the prisoner’s due process rights). Because a
collateral attack on an original misconduct is not permitted, see DC-ADM 804
§1.A.7., the Chief Grievance Officer properly dismissed the grievance appeal.
Santiago also maintains that his due process rights were violated
because he was entitled to a pre-deprivation hearing before those funds could be
removed from his inmate account. While it is clear that a prisoner has a property
interest in his inmate account, Tillman v. Lebanon County Correctional Facility,
221 F.3d 410, 421 (3rd Cir. 2000), and inmates are entitled to due process with
respect to any deprivation of this money, Reynolds v. Wagner, 128 F.3d 166, 179
7
Only those prison regulations that impose atypical sanctions and significant hardships
on an inmate in relation to the ordinary incidents of prison life implicate a protected property
interest requiring procedural due process protection. Portalatin v. Department of Corrections,
979 A.2d 944, 949 (Pa. Cmwlth. 2009), citing Sandin v. Conner, 515 U.S. 472, 484 (1995).
8
(3rd Cir. 1997), in Parratt v. Taylor, 451 U.S. 527, 539 (1981), overruled in part on
other grounds by Daniels v. Williams, 474 U.S. 327, 330-31 (1986), the Supreme
Court stated that it is permissible to dispense with the ordinarily required predeprivation hearings due to:
[E]ither the necessity of quick action ... or the
impracticability of providing any meaningful predeprivation process can, when coupled with the
availability of some meaningful means by which to
assess the propriety of the state’s action at some time
after the initial taking, satisfy the requirements of
procedural due process.
See also Gilbert v. Homar, 520 U.S. 924, 930-31 (1997); Hudson v. Palmer, 468
U.S. 517, 533 (1984). In this case, a pre-deprivation hearing was not required
where the funds deposited violated the Department’s policy8 against having other
8
It should be noted that Santiago does not contest the validity of the applicable
Department policies. See, e.g., Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (“We must accord
substantial deference to the professional judgment of prison administrators, who bear a
significant responsibility for defining the legitimate goals of a corrections system and for
determining the most appropriate means to accomplish them. The burden, moreover, is not on
the State to prove the validity of prison regulations but on the prisoner to disprove it….”)
(citations omitted).
In addition, Santiago’s assertion that he should have been charged with a misconduct
with a sanction prior to the seizure is likewise without merit. It was within the Department’s
discretion regarding whether to charge him with a misconduct due to the contraband in his J-Pay
account. See DC-ADM §3.C.2. (“Possession of contraband by an inmate may result in a
misconduct in accordance with the provisions of DC-ADM 801, “Inmate Discipline.”)
(emphasis added); DC-ADM §3.C.4. (“Money allegedly found by an inmate and voluntarily
turned into facility officials is not considered contraband and no misconduct will be written.
Found monies shall be confiscated and placed in the [IGWF].”).
Finally, DC-ADM 815 §3.C.8. provides:
(Footnote continued on next page…)
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inmates’ families deposit funds into Santiago’s account; valid penological interests
required that those funds be removed immediately to stop the ongoing drug sales,
and there was a post-deprivation hearing available to challenge whether the funds
in the account were deposited against Department policy.9
Accordingly, the preliminary objections are sustained and the petition
for review is dismissed.
_________________________________
DAN PELLEGRINI, President Judge
(continued…)
NOTE: All items deemed to be contraband will be destroyed or
otherwise disposed of.
The facility security office, after
consultation with the Major, will determine when contraband will
be destroyed. Destruction of contraband will ONLY occur after
the inmate’s misconduct hearing is held and the misconduct appeal
process is exhausted. When an inmate files a grievance regarding
confiscated contraband, destruction of the property will only occur
after the appeal process has been exhausted. (Emphasis in
original).
To the extent that the foregoing provides the post-deprivation process that was due, Santiago
could challenge the source and status of the funds at the hearing and he could have contested the
Hearing Examiner’s determinations in the misconduct appeal process.
9
Santiago’s reliance on Burns v. Department of Corrections, 544 F.3d 279 (3rd Cir. 2008)
and Higgins v. Beyer, 293 F.3d 683 (3rd Cir. 2002) is misplaced because neither of those cases
involved the seizure of contraband from an inmate’s account in which the inmate could have no
protectable property interest.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William Santiago,
Petitioner
v.
John E. Wetzel, John Kerestes,
Captain Steven G. Datchko, Ms.
Hudson, Ms. Luquis, Scott Miller,
Dorina Varner, Tracy Williams,
Respondents
:
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: No. 664 M.D. 2012
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ORDER
AND NOW, this 21st day of February, 2014, the preliminary
objections of John E. Wetzel, John Kerestes, Captain Steven G. Datchko, Ms.
Hudson, Ms. Luquis, Scott Miller, Dorina Varner and Tracy Williams are sustained
and the petition for review is dismissed.
_________________________________
DAN PELLEGRINI, President Judge