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. 
2

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 
3

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. 
4

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 wellpleaded 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).
5

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.
6

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 
7

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 
8

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),2an 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).
9

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 
10

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.
11

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 
12

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.
13

“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. 
14

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.
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 :

O R D E R

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