Political Prisoner DL4686 a/k/a A.D. Brown v. G.M. Little, Sec'y. of the Pa. DOC & Z.J. Moslak ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Political Prisoner #DL4686 a/k/a :
Alton D. Brown, :
Petitioner :
:
v. : No. 99 M.D. 2022
: Submitted: April 14, 2023
George M. Little, Secretary of :
the Pa. DOC and Z.J. Moslak, :
Respondents :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE LEAVITT FILED: August 1, 2023
Alton D. Brown, an inmate currently incarcerated at the State
Correctional Institution at Fayette, has filed a petition for review in the nature of a
mandamus and declaratory judgment action against the Secretary of Corrections,
George M. Little, and the Chief Hearing Examiner for the Pennsylvania Department
of Corrections (Department), Zachery J. Moslak (collectively, Respondents). Brown
asserts, inter alia, that Respondents violated the Department’s rules and regulations
and denied his right to due process during his disciplinary proceedings. In response,
Respondents have filed preliminary objections, demurring to the petition for review
and challenging our jurisdiction to consider this matter. We sustain in part and
overrule in part Respondents’ preliminary objections.
I. Petition for Review
Brown’s petition for review alleges that since 1997, Brown has been in
solitary confinement in the Department’s restrictive housing units. To justify
Brown’s continued solitary confinement, Respondents adopted a practice of
disciplining Brown for his emotional breakdowns caused by his chronic depression
and anxiety. The petition alleges that Respondents and their employees “set [Brown]
up” for his most recent misconduct report, No. D403446, by “playing games with
his cancer pain medication (oxycodone and methadone).” Petition for Review at 3,
¶10. After a nurse failed to give Brown pain medication, she screamed at him and
issued a misconduct report as a result of his verbal attack on her conduct. Petition
at 4, ¶10. The petition alleges that Brown’s “outbursts were a result of his emotional
disabilities, which were intentionally aggravated[.]” Id.
The petition also alleges that a prior misconduct report for sexual
assault, using abusive language and refusing to obey orders, No. D468380, was
issued in retaliation for Brown’s filing of a sexual harassment complaint against a
staff member. Petition at 5, ¶12. The misconduct report was issued on the same day
that Brown’s disciplinary sentence for another charge expired, which had been
issued by the same officer. Moreover, the petition alleges, the misconduct charge
was issued “in an attempt to cover up the assault on [Brown] with chemical agents,”
which Respondents did not investigate. Id. Brown asserts that the hearing examiner
refused to consider his evidence or view relevant videotape footage at the
disciplinary hearing. Petition at 10, ¶19.
Under the subheading “appellate jurisdiction,” the petition alleges that
on February 2, 2021, Brown was issued a misconduct report, No. D468367, for
threatening a correctional officer, “who had been attacking him for years for an
2
unknown reason.” Petition at 7, ¶16. The misconduct report omitted “crucial facts”
for retaliation, which failed to give Brown “advance notice” to properly defend
himself. Petition at 8, ¶17. The hearing examiner again refused to view videotape
footage at the hearing. The petition alleges that the misconduct proceeding was
retaliatory against Brown for filing of grievances and civil complaints against the
correctional officer’s supervisor.
The petition further alleges that when Brown attempted to appeal the
determinations on the misconduct charges Nos. D468367 and D468380, Moslak, the
Department’s chief hearing examiner, avoided addressing these appeals by falsely
asserting that Brown failed to supply supporting documents. Petition, Exhibit B.
The petition asserts that Respondents used the misconduct proceedings to punish
Brown for his “litigious and iconoclastic behaviors.” Petition at 6, ¶13. The
misconduct charges were filed after Brown “was given notice that he would be
released to open population within 90 days if he maintained misconduct free[,]”
despite that Brown had been “misconduct free for a few years[.]” Petition at 6, ¶15.
Without the “population status,” Brown was unable to receive the medical care
needed to treat his illness. Petition at 11, ¶21(iii).
The petition asks that this Court enter a declaratory judgment that
Respondents violated the Department’s regulations and internal policies during
Brown’s disciplinary proceedings; reverse the misconduct determinations that do not
comply with the Department’s disciplinary procedures; and require that the
misconduct charges be removed from Brown’s records. Petition at 15-16.
3
II. Preliminary Objections
In response, Respondents filed preliminary objections. First, they argue
that this Court cannot exercise either appellate or original jurisdiction over internal
prison disciplinary matters.1 Second, Respondents demur to Brown’s claims,
contending that he did not have a legally cognizable liberty interest under the
Department regulations and, thus, was not entitled to due process at the misconduct
hearing. Brown also cannot state a federal civil rights retaliation claim against
Respondents because they were not personally involved in the issuance of the
misconducts. Further, Brown’s request for a writ of mandamus is inappropriate
because Brown does not have a clear legal right to compel the removal of the
misconduct charges from his record.
III. Analysis
“[T]he question presented in a demurrer is whether, on the facts
averred, the law indicates with certainty that no recovery is possible.” Stilp v.
General Assembly, 974 A.2d 491, 494 (Pa. 2009). In ruling on preliminary
objections in the nature of a demurrer, this Court must consider as true all well-
pleaded material facts set forth in the petition and all reasonable inferences that may
be drawn from those facts. Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth.
2010). We “need not accept as true conclusions of law, unwarranted inferences from
facts, argumentative allegations, or expressions of opinion.” Id. To sustain
preliminary objections, “it must appear with certainty that the law will not permit
1
No answer or other pleading, including a preliminary objection, can be filed in response to an
appellate petition for review. PA.R.A.P 1516(a). In the interest of judicial economy, the Court
will treat Respondents’ challenge to its appellate jurisdiction as a motion to quash the appellate
portion of the petition for review. See Zinc Corporation of America v. Department of
Environmental Resources, 603 A.2d 288, 289 n.1 (Pa. Cmwlth. 1992).
4
recovery, and any doubt should be resolved by a refusal to sustain them.” Id. “When
ruling on a demurrer, a court must confine its analysis to the complaint.” Id. “Thus,
the court may determine only whether, on the basis of the plaintiff’s allegations, he
or she possesses a cause of action recognized at law.” Fraternal Order of Police
Lodge No. 5 by McNesby v. City of Philadelphia, 267 A.3d 531, 541 (Pa. Cmwlth.
2021).
We begin with a review of the Department’s regulation on inmate
discipline. It states, in relevant part, as follows:
(b) Written procedures which conform to established principles
of law for inmate discipline including the following will be
maintained by the Department and disseminated to the inmate
population:
(1) Written notice of charges.
(2) Hearing before an impartial hearing examiner or an
informal resolution process for charges specified by the
Department in the Department of Corrections Inmate
Handbook, or any Department document that is
disseminated to inmates. The informal resolution process
is described in DC-ADM 801--Inmate Discipline. The
process gives inmates the option to meet with staff to
resolve a misconduct rather than proceed with a hearing.
(3) Opportunity for the inmate to tell his story and to
present relevant evidence.
(4) Assistance from an inmate or staff member at the
hearing if the inmate is unable to collect and present
evidence effectively.
(5) Written statement of the decision and reasoning of the
hearing body, based upon the preponderance of the
evidence.
(6) Opportunities to appeal the misconduct decision in
accordance with procedures in the Department of
Corrections Inmate Handbook.
5
37 Pa. Code §93.10(b) (emphasis added).
The Department’s policy, DC-ADM 801, provides, in turn, that an
inmate who has been found guilty of misconduct charges may appeal to the Program
Review Committee for initial review, to the facility manager or designee for
secondary review, and to the chief hearing examiner for final review. Relevant here,
Section 5.C. of DC-ADM 801 states as follows:
C. Final Appeal-Chief Hearing Examiner
****
3. The inmate may appeal the decision of the Facility
Manager/designee within seven calendar days of the receipt of
the Facility Manager/designee’s decision[.]
4. An inmate who appeals his/her misconduct for final review
shall provide the Chief Hearing Examiner’s Office with a brief
statement of the facts relevant to the appeal and issues
complained of on appeal by using the DC-141, Part 2(E) and
accompanied by the documents specified in Subsection C.5.
below or available documentation relevant to the appeal. The
requirements of Subsections A.2.-6. above shall also apply to the
Final Level of Appeal. An appeal to this level may be rejected
for the inmate’s failure to comply with the requirements of
Subsections A.2.-6. Above[.]
DC-ADM 801, Inmate Discipline Procedures Manual, Section 5.C. (emphasis
added) (highlighting in original)
(https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/801%20Inma
te%20Discipline.pdf) (last visited July 31, 2023).
A. Appellate Jurisdiction
We first consider Respondents’ argument that this Court lacks appellate
jurisdiction to consider Brown’s petition. Specifically, “[i]nmate misconducts are a
6
matter of internal prison management and, thus, do not constitute adjudications
subject to appellate review.” Hill v. Department of Corrections, 64 A.3d 1159, 1167
(Pa. Cmwlth. 2013). As our Supreme Court explained in Bronson v. Central Office
Review Committee, 721 A.2d 357, 358-59 (Pa. 1998) (internal citations and
quotations omitted):
Unlike the criminal trial and appeals process where a defendant
is accorded the full spectrum of rights and protections guaranteed
by the state and federal constitutions, and which is necessarily
within the ambit of the judiciary, the procedures for pursuing
inmate grievances and misconduct appeals are a matter of
internal prison administration and the full panoply of rights due
a defendant in a criminal prosecution is not necessary in a prison
disciplinary proceeding…. Therefore, the [C]ommonwealth
[C]ourt does not have appellate jurisdiction, under 42 Pa. C.S
§763, over inmate appeals of decisions by intra-prison
disciplinary tribunals.
Simply, this Court lacks appellate jurisdiction to review the merits of the
Department’s decision on inmate discipline. Accordingly, we will quash the portion
of Brown’s petition addressed to this Court’s appellate jurisdiction.
B. Original Jurisdiction
As to the viability of Brown’s suit in this Court’s original jurisdiction,
the Department’s decisions regarding inmate misconducts generally fall outside the
scope of our original jurisdiction, even where a prisoner’s constitutional rights were
allegedly violated. “Prison inmates do not enjoy the same level of constitutional
protections afforded to non-incarcerated citizens.” Bronson, 721 A.2d at 359.
Indeed, “incarceration brings about the necessary withdrawal or limitation of many
privileges and rights, a retraction justified by the considerations underlying our penal
7
system.” Robson v. Biester, 420 A.2d 9, 13 (Pa. Cmwlth. 1980) (quoting Price v.
Johnston, 334 U.S. 266, 285 (1948)).
Nevertheless, “[t]here is a narrow exception if an inmate can identify a
personal or property interest not limited by [Department] regulations and affected
by a final [Department] decision. . . . If one of these interests is involved, the inmate
is entitled to notice and an opportunity to be heard.” Hill, 64 A.3d at 1167 (citation
omitted).
In Williams v. Wetzel, 232 A.3d 652 (Pa. 2020), an inmate commenced
a mandamus action in this Court’s original jurisdiction, alleging that he was removed
from his prison job assignment without due process, as required under 37 Pa. Code
§93.10. This Court granted summary declaratory and injunctive relief and directed
the Department to comply with the regulation’s procedural requirements. Our
Supreme Court reversed and remanded, holding that this Court lacked original
jurisdiction if an inmate does not assert a constitutionally protected liberty or
property interest. The Supreme Court held that “inmates have no constitutionally
protected interest in maintaining prison employment.” Williams, 232 A.3d at 654.
In Commonwealth ex rel. Jackson v. Wetzel (Pa. Cmwlth., No. 47 M.D.
2017, filed June 13, 2018) (unreported),2 an inmate filed a mandamus action alleging
that the Department violated its policy DC-ADM 801 and regulation at 37 Pa. Code
§93.10 by denying him permission to call a second witness to testify at his
misconduct hearing. The inmate sought an order of this Court compelling the
Department to provide him with an opportunity to be heard and present evidence in
2
An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for
its persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code §69.414(a).
8
accordance with the requirements of 37 Pa. Code §93.10 and the Department’s
internal policies. The Department filed preliminary objections arguing, inter alia,
that this Court lacked original jurisdiction to review intra-prison disciplinary
proceedings. In overruling the Department’s preliminary objections, we stated:
While we agree that the November 22, 2016 decision by the
misconduct hearing examiner is not reviewable in our appellate
or original jurisdiction, Jackson is not asking this Court to review
the misconduct determination itself. Rather, Jackson alleges that
the procedure in reaching that decision failed to comply with the
Department’s internal policies and Jackson’s right to due process
because he was not able to present evidence. Because it appears
that [the r]espondents’ first preliminary objection
mischaracterizes Jackson’s argument as a contest of the merits of
the misconduct determination, we overrule the first preliminary
objection.
Jackson, slip op. at 5.
Here, as in Jackson, the petition claims that Brown was not afforded
due process under 37 Pa. Code §93.10 in his discipline hearings and appeals.
Specifically, the petition alleges that Brown lacked notice on the misconduct charge
No. D468367, which omitted “crucial facts.” Petition at 8, ¶17. The hearing
examiner refused to view relevant videotape footage at the hearings for the
misconduct charges Nos. D468380 and D468367. Further, when Brown attempted
to appeal the hearing examiner’s determinations, Moslak avoided addressing
Brown’s appeals by falsely claiming that Brown did not submit supporting
documents. These allegations are not about the merits of the misconduct
determinations but, rather, the procedure in reaching those determinations. Jackson,
slip op. at 5. Further, we agree with Brown’s assertion that retaliation for filing
grievances and lawsuits against the Department’s employees, if it has occurred,
violates his constitutional right of access to the courts. Yount v. Pennsylvania
9
Department of Corrections, 966 A.2d 1115, 1121 (Pa. 2009). See also Brown v.
Blaine, 833 A.2d 1166 (Pa. Cmwlth. 2003) (prisoner who alleges retaliation by
prison employees for the filing of grievances has invoked the First Amendment3
right of access to the courts).
In sum, Brown’s petition has identified a personal interest “not limited
by [Department] regulations and affected by a final [Department] decision,” to
which “the inmate is entitled to notice and an opportunity to be heard.” Hill, 64 A.3d
at 1167. Therefore, we overrule Respondents’ preliminary objections based upon
lack of original jurisdiction.
C. Demurrer
1. Due Process Claim
We consider, next, Respondents’ preliminary objections asserting a
demurrer. Brown asserts that he was denied the process that is set forth in the
Department regulation at 37 Pa. Code §93.10(b). This provision provides, in
pertinent part, that when the Department seeks to impose discipline on a prisoner,
there will be a “[w]ritten notice of charges,” an “[o]pportunity for the inmate to tell
his story and to present relevant evidence,” and “[o]pportunities to appeal the
misconduct decision in accordance with procedures in the Department of
Corrections Inmate Handbook.” 37 Pa. Code §93.10(b)(1), (3), (6).
Due process requires that inmates charged with misconduct be
provided: (1) a hearing by an impartial adjudicator; (2) written notice of the charges,
3
U.S. CONST. amend. I. It provides that “Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people to peacefully assemble, and to petition the Government for
redress.” Id.10
provided at least 24 hours prior to the hearing; (3) an opportunity to call witnesses
and present documentary evidence, provided the presentation of such does not
threaten institutional safety or correctional goals; (4) assistance if the charged inmate
is illiterate or if complex issues are involved; and (5) a written explanation of the
decision. Wolff v. McDonnell, 418 U.S. 539, 563–71 (1974).
In Bush v. Veach, 1 A.3d 981 (Pa. Cmwlth. 2010), an inmate appealed
an order of the common pleas court that sustained the preliminary objections of
prison employees and dismissed the inmate’s complaint for damages. We reversed,
holding that because the inmate received neither written notice nor any of the other
procedures listed in 37 Pa. Code §93.10(b), he had sufficiently “stated a cause of
action for a violation of the process set forth in 37 Pa. Code §93.10.” Bush, 1 A.3d
at 985.
In Jackson (Pa. Cmwlth., No. 47 M.D. 2017, filed June 13, 2018), the
Department filed preliminary objections asserting a demurrer in response to
Jackson’s due process claim raised under 37 Pa. Code §93.10(b). Accepting as true
the allegations that the Department denied the inmate the opportunity to tell his story
and to present relevant evidence, we overruled the Department’s preliminary
objection and held that the inmate had “sufficiently pleaded a claim for
noncompliance with the Department’s internal regulations and a related due process
violation.” Jackson, slip op. at 6.
Likewise, here, Brown alleges that Respondents violated Department
policy DC-ADM 801 and 37 Pa. Code §93.10(b) by denying him an adequate notice
of charges, refusing to view relevant videotape footage at the hearings, and denying
him an opportunity to appeal the misconduct decisions by falsely claiming that
Brown failed to submit necessary supporting documents. Accepting as true the
11
allegations in the petition for review, we conclude that it is not clear at this stage in
the proceeding that Brown has failed to state a claim for which relief may be granted.
As such, we overrule Respondents’ demurrer relating to Brown’s due process claim.
2. Retaliation
Brown’s petition also asserts a First Amendment retaliation claim
against Respondents.4 The petition alleges that Respondents adopted a policy or
practice of using the misconduct proceedings to punish Brown for his “litigious and
iconoclastic behaviors.” Petition at 6, ¶13. As a result, he has been kept in the
restrictive housing units and was unable to access medical care.
In Yount, 966 A.2d at 1120-21, our Supreme Court held that to prevail
on a First Amendment retaliation claim, the petitioner must state sufficient facts to
show that (1) he engaged in constitutionally protected conduct; (2) the retaliation
against that conduct resulted in adverse action; (3) the protected conduct was a
substantial and motivating factor for the retaliation; and (4) the retaliatory action did
not further a legitimate penological goal. Id.
Importantly, the Supreme Court concluded that the final element for a
First Amendment retaliation claim places the burden of proof on the petitioner to
prove that the Department’s disciplinary action did not further a legitimate
penological goal. This requirement stems from the “potential for abuse” inherent in
retaliation claims and also a policy of judicial deference to the prison officials’
4
The rights secured by the First Amendment, which include prisoners’ ability to file administrative
grievances and legal actions, are enforceable at the state level by virtue of the Fourteenth
Amendment’s Due Process Clause, U.S. CONST. amend. XIV, §1. Bush, 1 A.3d at 985. The
Fourteenth Amendment states, in relevant part: “No State shall . . . deprive any person of life,
liberty, or property, without due process of law[.]” U.S. CONST. amend. XIV, §1.
12
“legitimate interest in the effective management of a detention facility.” Id. at 1120
(quoting Abdul-Akbar v. Department of Corrections, 910 F. Supp. 986 (D. Del.
1995)).
Upon review of the petition, we conclude that the alleged facts are
insufficient to meet the fourth prong for a First Amendment retaliation claim because
they fail to demonstrate that the retaliatory action, i.e., the misconduct charges, did
not further a legitimate penological goal. Brown’s averments are replete with
conclusory allegations that the misconduct charges were “retaliatory,” which need
not be accepted as true for purposes of preliminary objections. Torres, 997 A.2d at
1245. As such, we sustain Respondents’ demurrer with respect to Brown’s First
Amendment retaliation claim.
3. Mandamus
To the extent that Brown’s petition requests that the misconduct
charges be removed from Brown’s record, we conclude that the petition does not
state a mandamus claim. Mandamus is an extraordinary remedy used to compel the
performance of a ministerial act or mandatory duty where a petitioner establishes (1)
a clear legal right to relief, (2) a corresponding duty in the respondent, and (3) a lack
of any other adequate and appropriate remedy at law. Tindell v. Department of
Corrections, 87 A.3d 1029, 1034 (Pa. Cmwlth. 2014). The purpose of mandamus is
not to establish rights or to compel performance of discretionary acts but, instead, to
enforce rights that have been clearly established. Id.The Department’s misconduct determinations involve exercise of
discretion. Small v. Horn, 722 A.2d 664, 669-70 (Pa. 1998). Mandamus is not
available to review the way an agency or public official has exercised discretion.
13
Accordingly, the Department’s decisions cannot be reviewed in a mandamus action.
We thus sustain Respondents’ demurrer with respect to Brown’s mandamus claim.
IV. Conclusion
For the foregoing reasons, we overrule Respondents’ preliminary
objections based upon lack of original jurisdiction because this Court has jurisdiction
to review Brown’s due process and First Amendment retaliation claims. We also
overrule Respondents’ preliminary objections asserting a demurrer with respect to
Brown’s claim for noncompliance with the Department’s internal rules and
regulations and a related due process violation. However, we sustain Respondents’
demurrer with respect to Brown’s First Amendment retaliation claim and the
mandamus claim. Finally, we quash the portion of Brown’s petition addressed to
this Court’s appellate jurisdiction.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
Judge Fizzano Cannon did not participate in the decision of this case.
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Political Prisoner #DL4686 a/k/a :
Alton D. Brown, :
Petitioner :
:
v. : No. 99 M.D. 2022
:
George M. Little, Secretary of :
the Pa. DOC and Z.J. Moslak, :
Respondents :
ORDER
AND NOW, this 1st day of August, 2023, the preliminary objections
filed by George M. Little, Secretary of Corrections, and Z.J. Moslak (collectively,
Respondents), are OVERRULED in part and SUSTAINED in part. Respondents’
motion to quash the appellate portion of Political Prisoner #DL4686 a/k/a Alton D.
Brown’s (Petitioner) petition for review is GRANTED. Respondents shall file an
answer to Petitioner’s petition for review in accordance with the accompanying
opinion within thirty days of the date of this order.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita