M. Dukes v. PA DOC

M
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael Dukes,                                   :
                       Petitioner                :
                                                 :
               v.                                :
                                                 :
Pennsylvania Department of                       :
Corrections,                                     :   No. 281 M.D. 2020
                 Respondent                      :   Submitted: December 11, 2020


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE P. KEVIN BROBSON, Judge1
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                              FILED: February 17, 2021


                Before the Court are the Respondent’s Preliminary Objections to
Petition for Review (Preliminary Objections), in the nature of a demurrer,2 filed by
the Pennsylvania Department of Corrections (Department) in response to pro se
petitioner Michael Dukes’ (Petitioner) Petition for Review (Petition), which seeks
an order compelling the Department to take action with respect to eyeglasses

       1
       This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson
became President Judge.
       2
          Pennsylvania Rule of Civil Procedure 1028(a)(4) provides that preliminary objections
may be filed by any party for legal insufficiency of a pleading (demurrer). See Pa.R.C.P. No.
1028(a)(4). A preliminary objection in the nature of a demurrer tests “the legal sufficiency” of the
petition and will be sustained only in cases where the pleader has “clearly failed to state a claim
for which relief can be granted.” Clark v. Beard, 

918 A.2d 155

, 158-59 n.4 (Pa. Cmwlth. 2007).
“The demurrer may be granted only in cases which are so free from doubt that a trial would
certainly be a fruitless exercise.”

Id. Petitioner received from

prison officials. Upon review, we sustain the Preliminary
Objections and dismiss the Petition with prejudice.3
              Petitioner is incarcerated at the State Correctional Institution at Fayette
(SCI-Fayette). See Petition at 5 (pagination supplied beginning on page after cover
page), ¶ 1. On April 2, 2019, prison officials issued Petitioner eyeglasses made at
SCI-Cambridge Springs. See Petition at 6; see also Inmate’s Request to Staff
Member dated April 5, 2019 (April 5, 2019 Inmate Request), attached as an exhibit
to Petition.4 On April 5, 2019, Petitioner filed an inmate request complaining that
the eyeglasses he had been issued were inadequate. See Petition at 6; see also April
5, 2019 Inmate Request. On May 28, 2019, Petitioner filed a second inmate request
complaining that the eyeglasses remained inadequate. See Petition at 6; see also
Inmate’s Request to Staff Member dated May 28, 2019 (May 28, 2019 Inmate
Request), attached as an exhibit to Petition. The May 28, 2019 Inmate Request
indicates that, on May 9, 2019, Petitioner was seen by an outside optometrist
regarding his eyeglasses. See May 28, 2019 Inmate Request. The May 28, 2019
Inmate Request further indicates that SCI-Fayette officials discussed Petitioner’s
concerns on June 13, 2019, and would have Petitioner evaluated by the on-site
optometrist regarding his concerns. See Petition at 6; see also May 28, 2019 Inmate

       3
          In ruling on preliminary objections, this Court “must accept as true all well-pleaded
material allegations in the petition for review, as well as all inferences reasonably deduced
therefrom.” Torres v. Beard, 

997 A.2d 1242

, 1245 (Pa. Cmwlth. 2010). “The Court need not
accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations,
or expressions of opinion.”

Id. “In order to

sustain preliminary objections, it must appear with
certainty that the law will not permit recovery, and any doubt should be resolved by a refusal to
sustain them.”

Id. 4

         “Courts reviewing preliminary objections may not only consider the facts pled in the
complaint, but also any documents or exhibits attached to it.” Freemore v. Dep’t of Corr., 

231 A.3d 33

, 37 (Pa. Cmwlth. 2020) (quoting Allen v. Dep’t of Corr., 

103 A.3d 365

, 369 (Pa. Cmwlth.
2014)) (internal brackets omitted).

                                               2
Request. Petitioner was seen by the on-site optometrist on June 17, 2019. See
Petition at 7; see also Initial Review Response attached to as an exhibit to Petition
(Initial Review Response) at 1.
             Petitioner filed Official Inmate Grievance No. 831043 (Grievance) with
prison officials on October 21, 2019, claiming that his Department-provided
eyeglasses were inadequate. See Grievance, attached as an exhibit to Petition. In
the Grievance, Petitioner claimed that medical professionals at SCI-Fayette denied
Petitioner prescribed medical treatment and/or acted with deliberate indifference to
Petitioner’s medical needs by

             delay[ing] or den[ying] [Petitioner’s] prescribed medical
             treatment for non-medical reasons, chose an “easier or less
             efficacious treatment” or continued a course of treatment
             they know is ineffective.

Grievance at 1 (all capitals omitted). The Grievance referenced four (4) visits
Petitioner had with optometrists in relation to his eyeglasses, as well as multiple
communications with SCI-Fayette personnel regarding the same. See

id. at 1-2.

             On November 15, 2019, prison officials denied the Grievance after a
review of Petitioner’s medical records and discussions with the on-site optometrist
revealed that Petitioner’s issued eyeglasses were properly made and correctly
comported with Petitioner’s vision needs. See Initial Review Response at 1. In
denying the Grievance, prison officials noted that Petitioner’s complaints regarding
his issued eyeglasses stemmed from a desire on Petitioner’s part to have his
eyeglasses made in the community as opposed to in a State Correctional Institution.
See

id. Petitioner appealed the

Grievance determination through the various levels
of the Department’s internal grievance process until receiving a Final Appeal
Decision on March 11, 2020. See Initial Review Response; Appeal to Facility
                                         3
Manager dated December 2, 2019, attached as an exhibit to Petition; Facility
Manager’s Appeal Response dated January 7, 2020, attached as an exhibit to
Petition; Inmate Appeal to Final Review dated January 26, 2020, attached as an
exhibit to Petition; Final Appeal Decision dated March 11, 2020, attached as an
exhibit to Petition.
               On April 15, 2020, Petitioner filed the Petition with this Court, which
alleges that the Department violated the Eighth Amendment of the United States
Constitution5 by denying Petitioner adequate eyeglasses.                 On June 17, 2020,
Petitioner filed Petitioner’s Motion for Special and Summary Relief (Application for
Relief).6 On August 12, 2020, the Department filed the Preliminary Objections.
Petitioner filed Petitioner’s Reply to Respondent’s Preliminary Objections to the
Petition for Review on August 21, 2020. On August 27, 2020, this Court filed an
order directing the Preliminary Objections to be decided on briefs. The parties have
each submitted briefs, and the matter is now ripe for determination.
               We begin with a review of the Department’s demurrer on the basis that
the allegations of the Petition do not amount to a violation of the Eighth Amendment
of the United States Constitution because the allegations fail to state a claim of
deliberate indifference to Petitioner’s serious medical and/or optical needs, as this


       5
          The Eighth Amendment of the United States Constitution provides that “[e]xcessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
U.S. Const. amend. VIII. “The Eighth Amendment is made applicable to the states through the
Fourteenth Amendment [of the United States Constitution].” Com. v. Real Prop. & Improvements
Commonly Known As 5444 Spruce St., Phila., PA, 

832 A.2d 396

, 399 (Pa. 2003).
       6
         This Court dismissed Petitioner’s Motion for Special and Summary Relief on July 9,
2020, for failure to serve the application as required by Pennsylvania Rule of Appellate Procedure
1514(c). See Commonwealth Court Order dated July 9, 2020. On July 24, 2020, Petitioner refiled
the Motion for Special and Summary Relief together with a proper certificate of service, and that
is the Application for Relief currently before the Court along with the Preliminary Objections.

                                                4
objection is dispositive of this matter. See Preliminary Objections at 2-3.7 It is
apparent from the Petition and Petitioner’s brief that Petitioner seeks to compel the
Department to provide him with eyeglasses that meet his subjective approval. See
generally Petition; Petitioner’s Brief. As such, the Petition presents a request for
mandamus relief.

       7
           The Preliminary Objections list the following as reasons for its demurrer:

                 (a) The denial of [] Petitioner’s grievances, appeals[,] and requests
                 do[] not constitute final adjudications for purposes of the Court’s
                 original or appellate jurisdiction;

                 (b) [] Petitioner is not entitled to mandamus relief[] because he had
                 no clear right to the requested relief and there is no clear obligation
                 on the part of [the Department] to supply him with the medical
                 and/or optical treatment he feels is warranted;

                 (c) The allegations do not amount to a violation of the Eighth
                 Amendment;

                 (d) The allegations do not amount to deliberate indifference to []
                 Petitioner’s serious medical and/or optical needs;

                 (e) [] Petitioner has also failed to state a valid medical malpractice
                 claim;

                 (f) [] Petitioner has failed to attach a proper Certificate of Merit,
                 because this claim is the kind of claim which requires expert medical
                 testimony to establish the proper treatment for his condition;

                 (g) [] Petitioner has failed to file a proper Certificate of Merit as
                 required in medical malpractice claims under Rule 1042.3(a) of the
                 Pennsylvania Rules of Civil Procedure;

                 (h) [The Department] is immune from suit under the sovereign
                 immunity statute[,] 42 Pa.C.S. § 8522(a); and

                 (i) [] Petitioner failed to attach a copy of Grievance No. 831043 in
                 violation of Rule 1019(h) of the Rules of Civil Procedure.

Preliminary Objections at 2-3 (internal citations omitted).

                                                   5
             As this Court has explained:

             Mandamus is an extraordinary remedy that compels the
             official performance of a ministerial act or a mandatory
             duty. [This Court] may issue a writ of mandamus only
             where[] (1) the petitioner has a clear legal right to enforce
             the performance of an act, (2) the [respondent] has a
             corresponding duty to perform the act[,] and (3) the
             petitioner has no other adequate or appropriate remedy.

Kretchmar v. Dep’t of Corr., 

831 A.2d 793

, 798 (Pa. Cmwlth. 2003) (internal
citations and quotation marks omitted). Further, the Court has noted that mandamus
“will not lie to control the exercise of discretion unless the [respondent’s] action is
so arbitrary as to be no exercise of discretion at all.”

Id. The Eighth Amendment

prohibits “cruel and unusual punishments.”
U.S. Const. amend. VIII. The Supreme Court of the United States has concluded
that “deliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain, proscribed by the Eighth Amendment.”
Estelle v. Gamble, 

429 U.S. 97

, 104 (1976) (internal citation and quotation marks
omitted). Such indifference may be manifested “by prison doctors in their response
to the prisoner’s needs or by prison [personnel] in intentionally denying or delaying
access to medical care or intentionally interfering with the treatment once
prescribed.”

Id. at 104-05

(footnotes omitted).
             “The deliberate indifference standard contains both an objective
element and a subjective element.” 

Kretchmar, 831 A.2d at 798

. Accordingly, “[i]n
order to state a claim alleging deliberate indifference, an inmate must allege that:
(1) the deprivation of medical care is objectively sufficiently serious; and (2)
subjectively, that prison officials acted with a culpable state of mind, being aware
of, and disregarding, an excessive risk to the inmate’s health and safety.” Baez v.
                                            6
Pa. Dep’t of Corr. (Pa. Cmwlth., No. 311 M.D. 2013, filed Mar. 18, 2014),8 slip op.
at 6; see also Neely v. Dep’t of Corr., 

838 A.2d 16

, 20 n.6 (Pa. Cmwlth. 2003).
              “[W]here the failure to treat a prisoner’s condition could result in
further significant injury or the unnecessary and wanton infliction of pain,” a serious
medical condition exists and the first prong of the deliberate indifference standard is
met. 

Kretchmar, 831 A.2d at 799

. However, “[c]ourts will not find deliberate
indifference where an inmate is receiving medical treatment, but merely disagrees
with his course of treatment[.]” Baez, slip op. at 6. As this Court has explained:

              The deliberate indifference test affords considerable
              latitude to prison medical authorities in the diagnosis and
              treatment of the medical problems of inmate patients.
              Courts will disavow any attempt to second-guess the
              propriety or adequacy of a particular course of treatment .
              . . (which) remains a question of sound professional
              judgment. Complaints about medical care which merely
              reflect a disagreement with the doctors over the proper
              means of treating the prisoner’s medical condition do not
              rise to the level of a constitutional violation. Absent a
              showing that prison officials have engaged in
              constitutionally impermissible conduct, it is not in the
              public’s interest for the court to usurp [Department’s]
              authority and micro-manage the medical needs of a
              particular inmate.

Kretchmar, 831 A.2d at 799

(internal citations, quotation marks, and brackets
omitted).




       8
          Pursuant to Commonwealth Court Internal Operating Procedure Section 414(a), 210 Pa.
Code § 69.414(a), unreported panel decisions of this Court, issued after January 15, 2008, may be
cited for their persuasive value.

                                               7
               Here, the Department does not suggest that Petitioner’s visual
deficiencies do not represent a serious medical condition,9 but instead argues that
Petitioner has not been deprived of medical treatment with regard to his condition.
The Department argues that the exhibits attached to the Petition evidence that
Petitioner has, in fact, received regular medical attention and assessment regarding
the appropriateness and efficacy of his eyeglasses, and that his claims do not amount
to allegations of deliberate indifference to his medical condition, but instead merely
indicates Petitioner’s disapproval of and disagreement with the Department’s course
of treatment of his optical condition. We agree.
               Simply put, the allegations of the Petition do not rise to the level of an
Eighth Amendment violation based on deliberate indifference to Petitioner’s
medical/optical needs. On the contrary, review of the Petition and attached exhibits
reveals that prison officials have provided Petitioner with extensive medical
attention for his optical complaints, including multiple visits to and consultations
with various optometrists. The documentation included as exhibits to the Petition
illustrates not only that those medical visits and consultations occurred, but that they
resulted in determinations by the medical professionals consulted that Petitioner’s
eyeglasses were both properly made and adequate for his needs. Petitioner’s
dissatisfaction with these determinations does not transform them into deliberate
indifference to Petitioner’s medical or optical needs. In effect, Petitioner attempts
to mandate the Department to follow his particular preferred course of medical
treatment. However, this Court will not second-guess the propriety or adequacy of
a particular course of treatment determined appropriate by the professional judgment


       9
         Petitioner claims that wearing the improper eyeglasses supplied by the Department results
in physical pain. See April 5, 2019 Inmate Request; May 28, 2019 Inmate Request.

                                                8
of medical professionals employed by the Department to make such determinations.

Kretchmar, 831 A.2d at 799

.
             In this case, none of the factual averments contained in the Petition,
even if accepted as true, demonstrate the elements necessary for success on a claim
under the Eighth Amendment for unconstitutional conditions of incarceration based
on deliberate indifference by prison officials to Petitioner’s medical/optical care.
Therefore, Petitioner is not entitled to the mandamus relief he requests.
             For the foregoing reasons, we sustain the Preliminary Objections and
dismiss the Petition with prejudice. Further, because we sustain the Preliminary
Objections and dismiss the Petition, Petitioner’s outstanding Motion for Special and
Summary Relief based upon the Petition is dismissed as moot.



                                       __________________________________
                                       CHRISTINE FIZZANO CANNON, Judge




                                          9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Dukes,                          :
                  Petitioner            :
                                        :
            v.                          :
                                        :
Pennsylvania Department of              :
Corrections,                            :   No. 281 M.D. 2020
                 Respondent             :


                                   ORDER


            AND NOW, this 17th day of February, 2021, the Respondent’s
Preliminary Objections to Petition for Review filed by the Pennsylvania Department
of Corrections are SUSTAINED and pro se petitioner Michael Dukes’ (Petitioner)
Petition for Review is DISMISSED with prejudice.
            Petitioner’s Motion for Special and Summary Relief filed July 24, 2020
is DISMISSED as moot.



                                     __________________________________
                                     CHRISTINE FIZZANO CANNON, Judge

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