IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Flynn, :

Petitioner :

:

 v. : No. 512 M.D. 2019

: Submitted: May 1, 2020

Pennsylvania Department of :

Corrections, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE CROMPTON FILED: September 3, 2020

Joseph Flynn (Petitioner) petitions for review in this Court’s original 

jurisdiction challenging removal from his work assignment by the Pennsylvania 

Department of Corrections (DOC) (Respondent). Petitioner argues that he was 

inappropriately removed from his work assignment at the State Correctional 

Institution at Forest (SCI-Forest) following a disciplinary incident. Respondent filed 

Preliminary Objections (Objections) to Petitioner’s Petition for Review (Petition). 

Respondent asserts that Petitioner has failed to state any claims upon which relief 

may be granted. Upon review, concluding that we lack jurisdiction to consider the 

Petition, we dismiss the Petition and do not reach Respondent’s Objections.
2

I. Background

Petitioner is an inmate presently incarcerated at SCI-Forest. Petition at 

1. Prior to May 6, 2019, Petitioner worked as a kitchen employee within the facility. 

Id. at 2. On April 24, 2019, Petitioner was sanctioned with seven days loss of day

room time due to informal misconduct charges. Id. Petitioner faced charges because 

he “ha[d] a plastic knife to compromise the bathroom door. . . .” Pet’r’s Br. at 5. On 

May 6, 2019, Kevin Dittman, the Food Service Manager at SCI-Forest, moved to 

remove Petitioner from his kitchen employment. Petition at 2.

Petitioner alleges that his removal from his kitchen employment was 

“based solely on informal misconduct charges or events” and that Respondent’s 

actions constitute a violation of his due process rights. Id. Petitioner further argues 

that Respondent “circumvented” the process outlined in 37 Pa. Code § 93.10,

1 which 

 

1 37 Pa. Code § 93.10 states:

(a) Rules which define expectations and prohibitions for inmate 

behavior will be established by the Department and disseminated to the 

inmate population. There shall be two classes of misconduct charges, Class 

I and Class II. 

(1) Inmates found guilty of Class I misconduct charges may be 

subjected to one or more of the following sanctions: 

(i) Reduction of the classification of the misconduct to a Class II 

and any sanction permitted for Class II misconducts. 

(ii) A sanction permitted for Class II misconducts, without change 

in class of misconduct. 

(iii) Change of cell assignment, including placement in the restricted 

housing unit or restrictive confinement in a general population cell for a 

period not to exceed 90 days for any one misconduct charge. 

(iv) Change of program level. 

(2) Inmates found guilty of Class II misconducts may be subjected 

to one or more of the following sanctions: 

(i) Reprimand. 
3

governs formal misconduct sanctions for inmates. Id. Petitioner asserts that 

Respondent inappropriately utilized DOC Policy DC-ADM 816, which relates to 

inmate compensation, to remove him from his employment. Id. 

Petitioner filed a grievance with SCI-Forest under DC-ADM 804, the 

inmate grievances policy, challenging his removal from his job. Resp’t’s Br. at 4. 

Petitioner’s grievance was denied on May 17, 2019, and Petitioner subsequently 

filed a grievance appeal with the Facility Manager at SCI-Forest. Pet’r’s Br. at 

Attachments B, D. In its Final Appeal Decision, the facility stated that the records 

 

(ii) Suspension of privileges for a specified period of time. 

(iii) Payment of the fair value of property lost or destroyed or for 

expenses incurred as a result of the misconduct. 

(iv) Change of cell assignment excluding placement in the restricted 

housing unit. 

(v) Change, suspension or removal from job. 

(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.
4

indicate that Petitioner was “staffed out of the kitchen for a variety of reasons.” Id. 

Petitioner’s requested relief was denied on July 3, 2019. Id. Petitioner filed a 

Petition with this Court on September 10, 2019.2 Respondent demurs, submitting 

Objections on November 6, 2019.

II. Discussion

Petitioner argues that Respondent erred in removing Petitioner from his 

kitchen service job because the decision was based inappropriately on a prior 

“informal misconduct” incident for which Petitioner had already received an 

“informal resolution” of seven days loss of day room privileges. Petitioner asserts 

that in order for an inmate to be permanently removed from employment, the inmate 

must be found guilty under a Class I or Class II misconduct violation under 37 Pa. 

Code § 93.10(b). Petitioner argues that his removal process was conducted through 

DC-ADM 816, circumventing the regulatory requirements for inmate discipline 

outlined in 37 Pa. Code § 93.10.

In his Petition to this Court, Petitioner requests enjoinment of 

Respondent from permanently removing him from his job, reinstatement in his 

 

2

In ruling on preliminary objections, we accept as true all well-pleaded material allegations 

in the petition for review and any reasonable inferences that we may draw from the averments. 

Meier v. Maleski, 648 A.2d 595 (Pa. Cmwlth. 1994). However, the Court is not bound by legal 

conclusions, unwarranted inferences from facts, argumentative allegations, or expressions of 

opinion encompassed in the petition for review. Id. We may sustain preliminary objections only 

when the law makes clear that the petitioner cannot succeed on his claim, and we must resolve any 

doubt in favor of the petitioner. Id. When considering preliminary objections in the nature of a 

demurrer, we may sustain a demurrer only when a petitioner has failed to state a claim for which 

relief may be granted. Clark v. Beard, 918 A.2d 155 (Pa. Cmwlth. 2007). Moreover, we have 

held that “a demurrer cannot aver the existence of facts not apparent from the face of the challenged 

pleading.” Martin v. Dep’t of Transp., 556 A.2d 969, 971 (Pa. Cmwlth. 1989). 
5

previous kitchen employment, and a prohibition on harassment or retaliation by SCIForest staff for filing the Petition. Additionally, Petitioner seeks a declaration stating 

that his due process rights under 37 Pa. Code § 93.10 were violated by Respondent. 

Finally, Petitioner seeks damages and costs, particularly back pay, associated with 

his removal from his work position. Petition at 3.

Under 37 Pa. Code § 93.10(a)(2)(v), an inmate that is found guilty of a 

Class II misconduct3 may be subject to “change, suspension or removal from job.” 

37 Pa. Code § 93.10(a)(2)(v). However, this type of sanction requires a formal 

misconduct procedure, including written notice and a hearing before an impartial 

hearing examiner. See 37 Pa. Code § 93.10(b). Therefore, if a facility wishes to 

impose a job-related sanction in response to a Class II misconduct by an inmate, the 

formal misconduct procedure must be utilized in full.

DOC facilities also have internal policies to facilitate sanctions for 

informal misconduct. DC-ADM 801 states that select Class I or Class II charges 

may be resolved by an Informal Resolution Action. As a result of informal 

resolution, an inmate may be sanctioned to “up to 14 days loss of specified privileges 

(telephone, yard, day room, tablet usage, kiosk access, etc.).” Section 2.B.1.d of 

DC-ADM 801.

 

3 Class I & II Misconduct Charges are listed in the DC-ADM 801, Inmate Discipline 

Procedures Manual at Attachment 1-A. We take judicial notice of the Inmate Handbook, which 

appears on the DOC official website at:

http://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/2017%20DOC%20Inmate%

20Handbook.pdf. See Figueroa v. Pa. Bd. of Prob. and Parole, 900 A.2d 949, 950 n.1 (Pa. 

Cmwlth. 2006) (taking judicial notice of information found on DOC website) (last visited Sept. 2, 

2020).
6

Removal of an inmate from a work assignment need not necessarily be 

tied to inmate misconduct and sanctioning. Under DC-ADM 816, an inmate may be 

removed from a work assignment for reasons other than misconduct and medical 

necessity. Section 1.M.7 of DC-ADM 816. This type of removal must be handled 

by a Unit Management Team action and the inmate’s supervisor must provide 

written information about the proposed removal action. Id.

When the issuance of a misconduct is not the impetus for the removal 

of one from his job, DC-ADM 816, and not 37 Pa. Code § 93.10, is applicable. See 

Bronson v. Wetzel (Pa. Cmwlth., No. 576 M.D. 2018, filed September 13, 2019), 

2019 Unpub. LEXIS 520.4 An inmate may be “removed from a work/school 

assignment due to failure to perform, poor attitude, not being available for 

work/school, or no longer housed in the general population, etc.” DC-ADM 816, 

Section 1.B.3. An inmate “is not eligible for compensation until he/she is reinstated 

to a work/school assignment by the Unit Management Team.” Id.

Petitioner argues that his removal from his kitchen work assignment on 

May 6, 2019, was imposed as a sanction associated with his April 24, 2019, informal 

misconduct proceedings. As a result, Petitioner asserts that Respondent violated his 

due process rights because his job removal was not achieved through the 

requirements outlined in 37 Pa. Code § 93.10. However, Respondent maintains that 

Petitioner received a sanction of seven days without day room privileges as a result 

 

4 This case is cited for its persuasive value in accordance with Section 414(a) of this Court’s 

Internal Operating Procedures, 210 Pa. Code §69.414(a).
7

of his informal misconduct on April 24, 2019, and that he was removed from his 

kitchen job for separate and unrelated reasons under DC-ADM 816 on May 6, 2019.5

Petitioner cites Bush v. Veach, 1 A.3d 981 (Pa. Cmwlth. 2010), and 

Williams v. Wetzel, 222 A.3d 49 (Pa. Cmwlth. 2019) (granting petitioner declaratory 

and injunctive relief) rev’d, Williams v. Wetzel, _ A.3d _ (Pa., No. 95 MAP 2019, 

filed June 16, 2020), in support of his argument that his due process rights have been 

violated through his removal from his kitchen employment. In Bush, an inmate was 

removed from his employment following informal misconduct proceedings. Bush, 

 

5

It is important to note that the Attachment to the Petition does not support Petitioner’s 

claim that his job removal was an additional, associated sanction from his April 24, 2019 informal 

misconduct. In its Final Appeal Decision dated July 23, 2019, Respondent stated, “The record 

shows that [Petitioner was] staffed out of the kitchen for a variety of reasons.” Petition at 

Attachment A. Under DC-ADM 816, an inmate may be staffed out of a position for reasons other 

than misconduct or medical necessity. Section 1.M.7 of DC-ADM 816. A Unit Management 

Team action and a written explanation from an inmate’s supervisor is necessary to utilize this job 

removal process. Id.

Petitioner references “Support Team” and “Support Team Action” within his brief, 

admitting to the fact that a Unit Management Team action occurred with regard to his removal 

from his job. Pet’r’s Br. at 10. Petitioner includes Respondent’s Final Appeal Decision as 

“Attachment A” to his Petition, which states, “The facility responses are upheld to include the 

quoting of DC ADM 816.” Petition at Attachment A. Further, Respondent’s provided explanation 

that Petitioner was “staffed out of the kitchen for a variety of reasons” was issued by Kevin 

Dittman, the Food Service Manager at SCI-Forest. Petition at Attachment A; Resp’t’s Br. at 10-

11.

Therefore, Petitioner attaches documents showing that Respondent followed the procedure 

as mandated by DC-ADM 816. A Unit Management Team action occurred and Petitioner’s 

statement provided an explanatory statement about Petitioner’s job removal. “Attachment A” does 

not reference Petitioner’s informal misconduct on April 24, 2019, citing only “a variety of reasons” 

for his job removal. While Petitioner argues that his job removal was a result of the informal 

misconduct, thus triggering a 37 Pa. Code § 93.10 procedural requirement, Respondent’s job 

removal action was unrelated to the informal misconduct for which Petitioner received a sanction 

of seven days’ loss of day room privileges prior to his job removal. 
8

1 A.3d 981. This Court held that the inmate’s due process rights were violated 

because the removal of an inmate from work duties as a sanction for misconduct 

must be done through the procedure of 37 Pa. Code § 93.10. See id.

In Williams, an inmate was not issued a formal misconduct for an 

eligible offense, but was instead subject to the policy outlined in DC-ADM 816. 

Williams v. Wetzel, 178 A.3d 920, 922 (Pa. Cmwlth. 2018) (overruling respondents’ 

preliminary objections). The inmate was sanctioned with removal from his job. Id. 

However, this Court held that the sanction was inappropriate because the DOC used 

the DC-ADM 816 procedure, not 37 Pa. Code § 93.10. See id.

While Petitioner in the present case argues that he was subject to a 

sanction in violation of his due process rights and attempts to draw a comparison to 

the holdings of this Court in Bush and Williams, Petitioner does not account for the 

subsequent appellate history within this area of case law. The Pennsylvania 

Supreme Court reversed and remanded this Court’s decision in Williams (2019), 

holding that this Court lacks original jurisdiction if an inmate does not assert a 

constitutionally protected liberty or property interest. See Williams v. Wetzel, _ A.3d 

_ (Pa., No. 95 MAP 2019, filed June 16, 2020).

“Prison inmates do not enjoy the same level of constitutional 

protections afforded to non-incarcerated citizens.” Bronson v. Cent. Office Review 

Comm., 721 A.2d 357 (Pa. 1998). “[L]awful incarceration brings about the 

necessary withdrawal or limitation of many privileges and rights, a retraction 

justified by the considerations underlying our penal system.” Sandin v. Conner, 515 
9

U.S. 472, 485 (1995) (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). 

“Discipline by prison officials in response to a wide range of misconduct falls within 

the expected parameters of the sentence imposed by a court of law.” Sandin, 515 

U.S. at 485.

A jurisdictional impediment to judicial review may be raised by 

appellate courts of their own accord. Williams v. Wetzel, _ A.3d _ (Pa., No. 95 MAP 

2019, filed June 16, 2020). “The question whether a court has jurisdiction ... may 

be raised at any time in the course of the proceedings, including by a reviewing court 

sua sponte.” Id. at 3 (quoting Dep’t of Envtl. Prot. v. Cromwell Twp., Huntingdon 

Cty, 32 A.3d 639, 646 (2011)). We raise the issue of jurisdiction on the basis that 

Petitioner did not raise a constitutionally-protected liberty or property interest for 

which this Court may consider due process challenges.

“The general rule continues to be that removal from a job assignment 

is deemed to be an administrative matter with which courts are loath to interfere.” 

Williams v. Wetzel, _ A.3d _ (Pa., No. 95 MAP 2019, filed June 16, 2020) (quoting

2 Rights of Prisoners §8.6 (5th ed. 2019)). “Inmates do not have a liberty or property 

interest in their job assignments that would give rise to Due Process Clause 

protection.” Id. at 3, n.1 (quoting Watson v. Sec’y Pa. Dep’t of Corr., 567 F. App’x 

75, 78 (3d Cir. 2014)). Petitioner asserts that his due process rights were violated 

because the facility utilized DC-ADM 816, as opposed to 37 Pa. Code § 93.10, to 

remove him from his kitchen work assignment. However, because Petitioner does 

not have a liberty or property interest in his kitchen work, this Court lacks 

jurisdiction to review the Petition.
10

III. Conclusion

Because an inmate’s job does not constitute a liberty or property 

interest, this Court does not have jurisdiction to consider Petitioner’s due process 

challenges. We therefore dismiss the Petition and do not reach Respondent’s 

Objections.

______________________________

J. ANDREW CROMPTON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Flynn, :

Petitioner :

:

 v. : No. 512 M.D. 2019

:

Pennsylvania Department of :

Corrections, :

Respondent :

O R D E R 

AND NOW, this 3

rd day of September 2020, the Petition for Review 

filed by Joseph Flynn against the Department of Corrections (Respondent) is 

DISMISSED for lack of jurisdiction. Respondent’s preliminary objections are 

DISMISSED as moot.

______________________________

J. ANDREW CROMPTON, Judge