IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shawn Freemore, :
Petitioner :
:
v. : No. 201 M.D. 2021
: SUBMITTED: March 25, 2022
Department of Corrections, :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: September 19, 2022
Now before the Court are the preliminary objections of the
Department of Corrections to Petitioner Shawn Freemore’s petition for review in
this Court’s original jurisdiction challenging the State Correctional Institution at
Houtzdale’s (SCI-Houtzdale) confiscation of a publication, “Heavy Metal
Magazine, # 303, Savage Circus.”1 We sustain the Department’s preliminary
objections because we lack jurisdiction over this matter.
The facts as pled in the petition for review, along with accompanying
exhibits, are as follows. Petitioner is an inmate currently incarcerated at SCI-
Houtzdale. In March 2021 he received a notice of an incoming publication denial
for the magazine from the Department, which stated that it violated the criteria set
1
“Savage Circus” appears to be a comic strip being serialized in Heavy Metal Magazine.
[See Petition for Review ¶ 4 and Ex. E (showing an excerpt from a previous issue).]
forth in Policy DC-ADM 803 “Inmate Mail and Incoming Publications Manual,”
Section 2, subsection E.1,2 because of “obscene material, explicit sexual material
or nudity” on pages 140-144, with a brief description set forth as “[i]ntended to
2
The relevant portion of DC-ADM 803, which involves more than subsection E.1, can be
summarized as follows. “Any item that has been determined to be contraband as defined by 18
[Pa.C.S.] § 5123 [] [(relating to contraband)], shall be seized by the [Security Processing Center]
. . . .” (Dep’t Prelim. Objs. at Ex. 1, DC-ADM 803, § 2.E.1.a(1).) “Receipt of . . . any publication
. . . may be disapproved when [it] . . . contains nudity, explicit sexual materials, or obscene
material . . . .” (Id. at § 2.E.1.a.(2).) Several of the terms are defined by the policy. “Contraband”
is defined, in relevant part, as “an item an inmate is prohibited from possessing . . . .” (Id. at
Glossary of Terms.) “Nudity” is defined, in relevant part, as “the showing of the human male or
female genitals, pubic area, or anus with less than a fully opaque covering or the showing of the
female nipple with less than a fully opaque covering, or the depiction of covered male genitals
in a discernable turgid state.” (Id.) “Explicit sexual material” is defined, in relevant part, as
[a]ny . . . magazine . . . of the following: (1) sexual conduct, which
means acts of . . . sexual intercourse . . . or physical contact with a
person’s clothed or unclothed genitals, pubic area, buttocks or, if
the person is a female, breast; (2) sadomasochistic abuse, which
means . . . torture by or upon a person clad in undergarments, a
mask or bizarre costume, or the condition of being . . . bound[] or
otherwise physically restrained on the part of one so clothed; [and]
(3) sexual excitement, which means the condition of the human
male . . . genitals when in a state of . . . arousal.
(Id.) “Obscene material” is defined, in relevant part, as
[a]ny . . . magazine . . . if one of the following applies:
1. an average person applying contemporary community
standards would find that the subject matter taken as a whole
appeals to the prurient interest; and
2. the subject matter depicts or describes in a patently offensive
way[:] . . . (c) in a sexual context, flagellation or torture upon
a nude person or one clad only in undergarments, a mask or
bizarre costume or fettered, bound or otherwise restrained,
and/or (d) lewd exhibition of the genitals.
(Id.)
2
create sexual arousal—nude characters in sexual acts, bound, and sexually
mutilated & one displays his erect penis.” (Petition for Review “PFR” at Ex. A.)
Petitioner made a request that he be allowed to review the magazine so that he
might prepare an appeal/grievance, which was denied.
Petitioner filed an official inmate grievance and the facility manager
upheld the decision to confiscate the magazine. Petitioner then filed an appeal to
final review, which was denied by the Department’s Chief Grievance Officer
because the magazine “displays full frontal nudity and sexually explicit material”
in violation of the above-referenced policy. (PFR at Ex. D.)
In his petition for review, Petitioner raises the following claims: first,
that the Department failed to abide by its regulations and the referenced policy and,
second, that the Department violated Petitioner’s rights under the First, Ninth, and
Fourteenth Amendments to the United States Constitution, U.S. Const. I, IX, and
XIV.3
The Department raises two preliminary objections, the first to the
Court’s jurisdiction with regard to Petitioner’s seeking review of the Department’s
determination of his grievance and a second in the nature of a demurrer to
Petitioner’s constitutional claim. With respect to the issue of jurisdiction,
Petitioner responds that the Court has jurisdiction over his claim because it is
brought in our original jurisdiction. With respect to his First Amendment claim,
Petitioner denies that the magazine is pornographic and that its confiscation is
inconsistent with the Department’s stated penological interests.
This case is directly controlled by Shore v. Pennsylvania Department
of Corrections, 168 A.3d 374 (Pa. Cmwlth. 2017), wherein we rejected virtually
3
We have paraphrased the claims for the sake of concision and clarity.
3
identical First Amendment and due process claims. Specifically, we held that we
lack both appellate and original jurisdiction to review final decisions resulting from
the Department’s inmate grievance process, citing Bronson v. Central Office
Review Committee, 721 A.2d 357, 358-60 (Pa. 1998). Although the petitioners in
both Shore and the present case argue that because they claim the grievance process
violated constitutional rights we have jurisdiction over the original jurisdiction
action, our case law is to the contrary. In Bronson, our Supreme Court explained:
Even if [the petitioner] had invoked the
[Commonwealth] [C]ourt’s original jurisdiction by
attempting to color the confiscation . . . a violation of his
protected constitutional property rights, his claim would
fail. Prison inmates do not enjoy the same level of
constitutional protections afforded to non-incarcerated
citizens . . . . Unless “an inmate can identify a personal
or property interest . . . not limited by Department [of
Corrections] regulations and which has been affected by
a final decision of the [D]epartment” the decision is not
an adjudication subject to the court’s review.
Bronson, 721 A.2d at 359-60 [quoting Lawson v. Dep’t of Corrs., 539 A.2d 69, 71
(Pa. Cmwlth. 1988)]. Here, the property interest claimed by Petitioner is clearly
one that is limited by Department regulations, which have been held to withstand
First Amendment scrutiny. Brittain v. Beard, 974 A.2d 479, 488 (Pa. 2009); Smith
v. Beard, 26 A.3d 551, 558-59 (Pa. Cmwlth. 2011).
We note further that in Xavier v. Department of Corrections (Pa.
Cmwlth., No. 331 M.D. 2016, filed February 8, 2017) (unreported)—relied upon
and quoted for persuasive value in Shore—a petitioner sought review in our
original jurisdiction of the Chief Grievance Officer’s determination that
confiscated photographs and flyers contained nudity on grounds that the
4
Department had violated the First Amendment and did not adhere to the language
of DC-ADM 803 because the material did not actually contain nudity. Xavier, slip
op. at 2. In Shore, we noted as an initial matter that under Bronson, we lacked
appellate jurisdiction to review the petitioner’s claims. We further concluded in
Shore that we lacked original jurisdiction over the matter because
[h]ere, the Department regulations limit an inmate’s right
to send or receive correspondence that contains obscene
material while incarcerated. DC–ADM 803. In Brittain .
. . [the] Supreme Court determined that prison
administrators are owed substantial deference to their
professional judgment regarding policies that serve
legitimate goals of the correctional system, and upheld
the Department’s policy prohibiting prisoners from
possessing obscene material.
Further, the Department’s regulations as codified at 37
Pa. Code § 93.2(g), provide that incoming publications
containing obscene material may not be received by
inmates. This Court upheld those regulations in Payne v.
[] Department of Corrections, 813 A.2d 918 (Pa.
Cmwlth. 2002) . . . . Thus, because this is an internal
operating procedure and the Department has placed
limitations on the material inmates can receive, this
Court does not have original jurisdiction.
Shore, 168 A.3d at 382 (quoting Xavier, slip op. at 4-5).
Because the law is clear that we lack authority to review Petitioner’s
claims, we sustain the Department’s preliminary objection asserting a lack of
jurisdiction.4
4
Because we dismiss for lack of jurisdiction, we do not reach the Department’s preliminary
objection in the nature of a demurrer.
(Footnote continued on next page…)
5
__________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
We have considered Petitioner’s assertion, raised in his brief, that we “lack jurisdiction” to
review the Department’s preliminary objections, (Petitioner’s Brief in Opposition to Preliminary
Objections at 6), because he did not timely receive them. Pennsylvania Rule of Appellate
Procedure 121(c)(1) provides that “[s]ervice may be . . . (1) by personal service, which includes
delivery of the copy to a clerk or other responsible person at the office of the person serviced,
but does not include inter-office mail.” Pa. R.A.P. 121(c)(1). The original proof of service
submitted by the Department indicates that its attorney personally served Petitioner at the address
listed on the service of process submitted on July 21, 2021, in compliance with our per curiam
order of July 16, 2021, directing the Department to serve its answer or other pleading to the
Petition for Review. Upon Petitioner’s filing of a “Notice to the Court of Misconduct” arising
from his non-receipt of the preliminary objections, on October 26, 2021, we directed the
Department to re-serve the preliminary objections on Petitioner and file proof of service within
14 days of the order. The Department complied. Thus, we see no merit in this argument.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shawn Freemore, :
Petitioner :
:
v. : No. 201 M.D. 2021
:
Department of Corrections, :
Respondent :
ORDER
AND NOW, this 19th day of September, 2022, Respondent Department
of Corrections’ Preliminary Objections are SUSTAINED and Petitioner Shawn
Freemore’s Petition for Review is DISMISSED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita