IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Ricker, :

:

Petitioner :

:

 v. : No. 842 C.D. 2020

: Submitted: April 30, 2021

Department of Corrections, :

:

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: February 15, 2022

David Ricker (Inmate), an inmate currently incarcerated at the State 

Correctional Institution at Dallas (SCI Dallas), petitions this Court for review of the 

July 30, 2020 decision of the Department of Corrections (Department), which 

affirmed Inmate’s discipline for misconduct for assault, with a sanction of 90 days

of disciplinary custody. After careful review, we dismiss Inmate’s petition for 

review for lack of jurisdiction. 

The relevant facts are as follows. On May 29, 2020, while housed at 

SCI Dallas, Inmate was issued a misconduct, charging him with assault, sexual 

harassment, and refusal to obey an order or directive, stemming from an incident in 

1 This matter was assigned to the panel before January 3, 2022, when President Judge 

Emerita Leavitt became a senior judge on the Court.
2

which Inmate “walked behind th[e SCI Dallas reporting nurse] and grabbed [her] 

right buttock” while the nurse was administering medication, and Inmate was 

waiting to use the telephone. Reproduced Record (R.R.) at 1a. Inmate denied the 

claims and requested a formal administrative hearing. Inmate indicated his desire 

for representation and witnesses, and to present his version of events, as 

acknowledged by the Department on form DC-141. Id. at 1a-2a.

Inmate’s hearing before a hearing examiner at SCI Dallas took place on 

June 1, 2020. R.R. at 4a. Inmate requested assistance at the hearing due to his 

hearing disability, which was denied, as it “does not meet the criteria for assistance.” 

Id. at 2a. Inmate also requested the presence of three witnesses, who were either 

present at the incident or who would vouch for Inmate’s good behavior, which was 

also denied, as those witnesses were “not needed to determine facts.” Id. The 

hearing examiner allowed Inmate to submit his written version of events for the 

record, in which Inmate denied that he disobeyed the nurse’s order because he did 

not hear the nurse’s order due to a hearing impairment, denied that he sexually 

harassed the nurse, and admitted that he accidentally bumped into the nurse with his 

hip. Id. at 3a. The hearing examiner found Inmate guilty of the sexual harassment 

and assault misconduct charges, dismissed the charge for failure to obey an order, 

and imposed a sanction of 180 days of disciplinary custody. Id. at 4a-5a. 

Inmate appealed the hearing examiner’s decision to the Department’s 

Program Review Committee (Committee), which found no procedural errors, found 

the punishment warranted, and found the hearing examiner’s findings of fact 

sufficient to support the decision; however, the Committee reduced Inmate’s 

disciplinary custody to 100 days. Certified Record (C.R.) at 6. Inmate further 

appealed to the Superintendent of SCI Dallas, who affirmed the Committee’s 
3

decision, and noted that he spoke to one of Inmate’s proposed witnesses, who 

“supported the content of the misconduct.” R.R. at 10a.

Inmate then appealed to the Department’s Office of the Chief Hearing 

Examiner (Chief Hearing Examiner), where Inmate and his counsel presented 

written statements in which they argued that the sexual harassment charge should be 

dismissed because it did not meet the Department’s definition of sexual harrassment. 

R.R. at 11a-17a. In a letter dated July 30, 2020, the Chief Hearing Examiner 

dismissed the sexual harassment charge, affirmed the assault charge, and reduced 

Inmate’s sanction to 90 days of disciplinary custody. Id. at 18a.2

Inmate then petitioned this Court for review,

3

in which he presents two 

questions for review,

4

requests a new hearing, asks this Court to dismiss the 

misconduct finding, and asks this Court to restore Inmate’s Recidivism Risk 

Reduction Incentive Program (RRRI) status.5 Inmate argues that the Department 

violated its inmate discipline regulation and policy in conducting his June 1, 2020 

misconduct hearing, because it denied him the opportunity to tell his story and 

2 The Chief Hearing Examiner further affirmed this final review and the sanctions imposed 

in a letter dated August 4, 2020. C.R. at 12. Because both decisions of the Chief Hearing Examiner 

impose the same sanctions on Inmate, we will proceed with review of the Chief Hearing 

Examiner’s decision dated July 30, 2020, per Inmate’s petition for review. 

3 This Court’s scope of review of a final order of an administrative agency is limited to 

determining “whether an error of law was committed, whether constitutional rights were violated, 

or whether necessary findings of fact are supported by substantial evidence.” Mirarchi v. 

Department of Corrections, 811 A.2d 1096, 1099 n. 7 (Pa. Cmwlth. 2002). 

4 For clarity, we have reordered Inmate’s questions for review.

5 As relevant here, as part of the Prisons and Parole Code, 61 Pa .C.S. §§101-7123, the 

RRRI program authorizes the Department to offer eligible inmates programs to reduce the 

likelihood of recidivism and improve public safety. If an eligible inmate completes the required 

programs, he may be eligible for early parole based on a reduction of his minimum sentence. See 

61 Pa. C.S. §§4502-4511.
4

present relevant evidence, and to receive assistance at the hearing.6 Inmate also 

argues that his due process and equal protection rights under article I, section 26 of 

the Pennsylvania Constitution7 were violated by the Department’s conduct at his 

June 1, 2020 misconduct hearing, depriving Inmate of a personal interest by 

subjecting him to 90 days of secure confinement, and by altering Inmate’s status as 

an RRRI inmate. 

As to the first question, Inmate argues that the Department erred in 

failing to provide him with assistance at his misconduct hearing due to his hearing 

disability and to present testimony from three witnesses Inmate believed was 

relevant to his defense. Inmate argues that the hearing examiner’s denial of his 

request for assistance because it “does not meet the criteria for assistance,” was not 

adequately explained. R.R. at 2a. Inmate cites no caselaw in support of this 

argument, and relies on the Department’s inmate discipline regulation at 37 Pa. Code 

§93.10. The Department responds that Inmate’s request for appellate review of his 

misconduct hearing should be dismissed for lack of jurisdiction, citing Hill v. 

Department of Corrections, 64 A.3d 1159, 1167 (Pa. Cmwlth. 2013). 

As to the second question, Inmate argues that the Department’s actions 

to deny him assistance at his hearing violate his rights to equal protection and due 

6 The Department’s inmate discipline regulation, 37 Pa. Code §93.10, outlines the rules 

and sanctions for inmate misconduct, and provides that an inmate accused of misconduct has the 

right to written notice of charges; a hearing before an impartial hearing examiner; the opportunity 

to tell his story and present relevant evidence; assistance from an inmate or staff member at the 

hearing if the inmate is unable to collect and present evidence effectively; a written statement of 

the decision and reasoning of the hearing body; and the opportunity to appeal the misconduct 

decision.

7 Article I, section 26 states: “Neither the Commonwealth nor any political subdivision 

thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any 

person in the exercise of any civil right.” Pa. Const. art. I, §26. 
5

process under article I, section 26 of the Pennsylvania Constitution. Inmate further 

argues that the Department’s sanctions against him, namely, 90 days of secure 

confinement and altering his RRRI status, deprive Inmate of personal and liberty 

interests. Inmate describes secure confinement as a “more restrictive form of 

incarceration where inmates are locked down for 231⁄2 hours a day, with only 1⁄2-hour 

of recreational time in the yard,” as well as restricting Inmate from accessing the 

commissary, recreation time, and phone time. Inmate’s Brief at 8-9. Inmate further 

argues, without reference to the record, that the Department’s finding of misconduct 

altered his status as an RRRI inmate, which would limit his opportunity for early 

release. Other than these factual arguments and assertions, Inmate cites no statute

or case law to support his contention that the Department’s conduct violated his 

rights under article I, section 26 of the Pennsylvania Constitution. 

The Department responds that, to the extent Inmate seeks review of his 

misconduct decision in this Court’s original jurisdiction, it should also be dismissed 

for lack of jurisdiction. In support, the Department cites Bronson v. Central Office 

Review Committee, 721 A.2d 357, 359 (Pa. 1998), and Robson v. Biester, 420 A.2d 

9, 12 (Pa. Cmwlth. 1980), which both hold that such suits generally fall outside of 

the scope of this Court’s jurisdiction, even if an inmate alleges that his constitutional 

rights were violated. The Department acknowledges that a narrow exception exists 

to permit judicial review of inmate misconduct “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 (internal citation 

omitted.) The Department argues that, contrary to Inmate’s position, Inmate’s 

temporary assignment to disciplinary custody for 90 days does not implicate any 
6

personal or liberty interests. The Department responds that, based on Sandin v. 

Connor, 515 U.S. 472, 484 (1995), an inmate’s liberty interest arises only when the 

Department’s actions impose an “atypical and significant hardship on the inmate in 

relation to the ordinary incidents of prison life,” which Inmate did not allege here. 

The Department also relies on Sandin, which noted that placement in disciplinary 

custody did not present the type of atypical, significant hardship to implicate an 

inmate’s liberty interest. Id. at 487. The Department further notes that its inmate 

discipline policy includes a disclaimer that the policy “does not create rights in any 

person nor should it be interpreted or applied in such a manner as to abridge the 

rights of any individual.” 8 The Department responds that this Court has already held 

that such disclaimer language is “sufficient to dispel any reasonable expectation that 

an enforceable right [was] created by the [Department] policy.” Weaver v. 

Pennsylvania Department of Corrections, 829 A.2d 750, 753 (Pa. Cmwlth. 2003). 

The Department further responds that Inmate has no liberty interest in participating 

in the RRRI program, because our Superior Court has held that no individual has a 

constitutional right or interest in participating in the RRRI program. Commonwealth 

v. Beish, 207 A.3d 964, 970 (Pa. Super. 2019).9 The Department argues that the 

RRRI statute specifically states that it shall not be construed to confer any legal right 

to participate or continue in the RRRI program, to file any cause of action regarding 

an inmate’s suspension from the RRRI program, or to confer any legal right for an 

individual to be released on parole. 61 Pa. C.S. §4511. The Department further 

8 The Department’s inmate discipline policy, DC-ADM 801, may be found at 

https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/801%20Inmate%20Discipli

ne.pdf. (last visited 2/14/2022). 

9

“In general, Superior Court decisions are not binding on this Court, but they offer 

persuasive precedent where they address analogous issues.” Lerch v. Unemployment 

Compensation Board of Review, 180 A.3d 545, 550 (Pa. Cmwlth. 2018) (citation omitted). 
7

notes that, contrary to Inmate’s allegations that his misconduct altered his RRRI 

status, Inmate’s sanctions for misconduct as indicated by the record make no 

mention and take no position on Inmate’s RRRI status. 

After careful review we conclude that, to the extent Inmate seeks 

appellate review of the Department’s misconduct decision, this Court lacks appellate 

jurisdiction over inmate discipline. “Inmate misconducts are a matter of internal 

prison management and, thus, do not constitute adjudications subject to our appellate 

review.” Hill, 64 A.3d at 1167.

We further conclude that, to the extent Inmate seeks review of his 

misconduct decision in our original jurisdiction, we lack original jurisdiction to 

review it. Inmate does not present a viable claim that the Department’s sanctions 

implicated his liberty or personal interests under the applicable case law. We are 

guided by the general rule that “the Department’s decisions regarding inmate 

misconduct convictions generally fall outside the scope of our original jurisdiction, 

even where a prisoner’s constitutional rights have allegedly been violated.” 

Feliciano v. Pennsylvania Department of Corrections, 250 A.3d 1269, 1274 (Pa. 

Cmwlth. 2021). We are mindful, however, that there exists 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 those 

interests is involved, the inmate is entitled to notice and an opportunity to be heard.’” 

Feliciano, 250 A.3d at 1275 (quoting Hill, 64 A.3d at 1167). Here, Inmate’s claim 

that his sanction of 90 days of disciplinary confinement violated a personal or liberty 

interest must fail, because he presented no evidence that his sanction of 90 days of 

disciplinary confinement presented an “atypical and significant hardship on the 

inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484. 
8

Further, the Department’s inmate discipline regulation and policy clearly limit 

Inmate’s personal and liberty interests in remaining free from disciplinary custody, 

when such a sanction is imposed after a misconduct proceeding. See 37 Pa. Code 

§93.10 and Department’s inmate discipline policy. 

Finally, we find no merit to Inmate’s claim that the Department’s 

misconduct hearing or resulting sanctions limited Inmate’s right to continue to 

participate in the RRRI program. The record contains no evidence that the 

Department’s sanction resulted in any change to Inmate’s RRRI status. Even if it 

did, Inmate has no cognizable liberty interest in participating in the RRRI program, 

which might result in an inmate’s early release to parole, because “parole is an act 

of grace, not of right.” Beish, 207 A.3d at 970. 

Because we lack either appellate or original jurisdiction to review 

Inmate’s misconduct proceedings, we dismiss Inmate’s petition for review with 

prejudice. 

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Ricker, :

:

Petitioner :

:

 v. : No. 842 C.D. 2020

: 

Department of Corrections, :

:

Respondent :

O R D E R

AND NOW, this 15th day of February, 2022, the Petition for Review 

filed by David Ricker is DISMISSED with prejudice. 

__________________________________

MICHAEL H. WOJCIK, Judge