Political Prisoner #DL4686 v. Little

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Political Prisoner #DL4686 a/k/a Alton D. Brown, Petitioner v. George M. Little, Secretary of the Pa. DOC and Z.J. Moslak, Respondents

No. 99 M.D. 2022

Commonwealth Court of Pennsylvania

August 1, 2023

OPINION NOT REPORTED

Submitted: April 14, 2023

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ELLEN CEISLER, Judge HONORABLE MARY HANNAH LEAVITT, Senior Judge

MEMORANDUM OPINION

MARY HANNAH LEAVITT, President Judge Emerita

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 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.

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 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.

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 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, ...