OPINION NOT REPORTED
MEMORANDUM OPINION BY HEARTHWAY, Judge.
Tyree Lawson (Lawson), pro se, has filed a "Complaint for Mandamus Action"
Lawson's complaint alleges the following facts. On July 18, 2016, Corrections Officer Wolfgang directed Lawson to sign SCI-Forest's inmate legal mail tracking sheet.
With respect to the first grievance (No. 635138), Lawson received an initial denial response, which he appealed, and on September 6, 2016, SCI-Forest's facility manager denied the appeal. (Complaint ¶ 16.) On September 23, 2016, Lawson filed a final appeal with the Department's chief inmate grievance coordinator. (Complaint ¶ 16.)
With respect to the second grievance (No. 638792), Lawson alleges Respondent Reeher arbitrarily rejected the grievance. (Complaint ¶ 17.) Lawson appealed to the facility manager, who, on September 13, 2016, remanded the matter to the grievance officer for further investigation and response. (Complaint ¶ 17.) Lawson alleges that no response has been provided in violation of the remand order and Department Policy DC-ADM 804. (Complaint ¶ 18.) Lawson seeks mandamus to compel ministerial acts consistent with the Department's policy, quoting sections of DC-ADM 804 relating to inmate grievances. (Complaint pg. 4.)
Lawson alleges that he "is likely to suffer future irreparable harm through these unfair acts amounting to blatant Official Oppression . . . by refusing to respond to petitioner's [Lawson's] filed actions that's [sic] furtherly [sic] demonstrating the unavailability of the Inmate Grievance Procedure . . ." and continued irreparable harm from the denial of access to the courts. (Complaint pg. 5, first ellipsis in original.) Lawson alleges Department employees are acting in violation of the Department's Code of Ethics. (Complaint pg. 5.) Lawson moves this Court "to compel the Secretary John Wetzel to produce and furnish to petitioner [Lawson] an Administrative order directing said SCI-Forest Officials to tamper with, withhold and obstruct petitioner's rightfully entitled outgoing and incoming mail [(First Request)]. In addition to compelling the other named responds [sic] to provide responses to petitioner's filed actions [(Second Request)]"; and to order reimbursement for the costs associated with this action, not exceeding $50.00.
"Mandamus is an extraordinary writ designed to compel performance of a ministerial act or mandatory duty where there exists a clear legal right in the petitioner, a corresponding duty in the respondent, and want of any other adequate and appropriate remedy." Wilson v. Pennsylvania Board of Probation & Parole, 942 A.2d 270, 272 (Pa. Cmwlth. 2008). "The purpose of mandamus is to enforce rights that have been clearly established." Tindell v. Department of Corrections, 87 A.3d 1029, 1034 (Pa. Cmwlth. 2014). "Mandamus may not be used to establish legal rights or to compel performance of discretionary acts." Id. "While a court may compel the exercise of discretion, mandamus may not lie to direct a judgment or the exercise of discretion in a particular way nor require the performance of a particular discretionary act." Raleigh v. Pennsylvania Human Relations Commission, 660 A.2d 177, 179 (Pa. Cmwlth. 1995).
Here, Lawson's First Request for mandamus relief asks this Court "to compel the Secretary John Wetzel to produce and furnish to petitioner [Lawson] an Administrative order directing said SCI-Forest Officials to tamper with, withhold and obstruct petitioner's rightfully entitled outgoing and incoming mail." Initially, we must state that we find Lawson's request to be confusing and wonder if, perhaps, there is a typographical error.
Respondents state that although Lawson's complaint is "unclear," he "seems to be attempting to assert a violation of the First Amendment regarding the opening of his mail" and that he "could perhaps also be arguing a denial of access to the courts in relation to said mail which he asserts contained an order from a federal habeas corpus case. . . ." (Respondents' brief at 10.) Respondents have characterized Lawson's requested relief as seeking "an order from the secretary affirming that his legal mail was tampered with in an attempt to obstruct incoming and outgoing mail." (Respondents' brief at 12.) Respondents have filed preliminary objections in the nature of a demurrer, alleging legal insufficiency for several reasons.
Lawson has no clear legal right to compel performance of the relief he seeks, "to compel the Secretary John Wetzel to produce and furnish to petitioner [Lawson] an Administrative order directing said SCI-Forest Officials to tamper with, withhold and obstruct petitioner's rightfully entitled outgoing and incoming mail." While Lawson makes general allegations of violations, he fails to identify or allege any clear legal right to the relief he seeks.
We recognize that "Pennsylvania state prisoners have a First Amendment right not to have properly marked legal mail opened outside of their presence." Jones v. Doe, 126 A.3d 406, 408 (Pa. Cmwlth. 2015) (emphasis added). However, mail purporting to be legal mail is not automatically privileged; to be considered privileged, the Department requires the use of a control number issued by it. Id. at 407, n.2 (citing Brown v. Pennsylvania Department of Corrections, 932 A.2d 316 (Pa. Cmwlth. 2007)). This Court has upheld the Department's policies surrounding legal mail. See Brown. Here, Lawson has failed to allege that the mail contained any control number, thereby entitling him to any protections not to have the mail opened outside of his presence. Accordingly, Lawson's First Request is legally insufficient for this reason as well.
We now turn to Lawson's Second Request, which seeks to compel Respondents to provide responses to his filed actions (grievances). Respondents have failed to raise any preliminary objections challenging this mandamus claim, and Respondents do not even mention this claim when summarizing the relief Lawson seeks. (See Respondents' preliminary objections, pg. 2.) As there are no preliminary objections to this claim before us, we must, at this stage, allow Lawson's claim to proceed.
Accordingly, for the foregoing reasons, we sustain Respondents' preliminary objections with respect to Lawson's First Request, and therefore dismiss that portion of the complaint. Because no preliminary objections were filed to Lawson's Second Request, which asks this Court "to compel the other named responds [sic] to provide responses to petitioner's filed actions" that claim, as well as Lawson's claim for costs, remain, and the Respondents shall file an answer to Lawson's complaint within thirty (30) days of the date of this Court's order.
AND NOW, this 16th day of May, 2017, the preliminary objections filed by the Respondents in the above-captioned matter are hereby sustained with respect to Tyree Lawson's (Lawson) mandamus claim which seeks "to compel the Secretary John Wetzel to produce and furnish to petitioner [Lawson] an Administrative order directing said SCI-Forest Officials to tamper with, withhold and obstruct petitioner's rightfully entitled outgoing and incoming mail," and therefore, we dismiss that portion of Lawson's "Complaint for Mandamus Action," in the nature of a petition for review. Because Respondents did not file any preliminary objections to Lawson's claim seeking "to compel the other named responds [sic] to provide responses to petitioner's [Lawson] filed actions," as well as to Lawson's claim for costs, those claims remain, and Respondents shall file an answer to Lawson's "Complaint for Mandamus Action" within thirty (30) days of the date of this Court's order.