IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Austin, :

 Petitioner :

:

v. :

:

Pennsylvania Department :

of Corrections, : No. 650 M.D. 2020

Respondent : Submitted: April 14, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: September 1, 2022

Before the Court are preliminary objections filed by Respondent, the 

Pennsylvania Department of Corrections (Department), in response to the pro se

petition for review (Petition) filed in this Court’s original jurisdiction by Petitioner 

Joseph Austin (Austin). Upon review, we sustain the Department’s preliminary 

objection asserting that this Court lacks subject matter jurisdiction over Austin’s 

claim and dismiss the Petition.
2

I. Factual & Procedural Background

On December 4, 2020, Austin filed with this Court a “Notice of Intent 

to Initiate Civil Action” and a “Motion for Pre-Complaint Discovery.”1 On 

December 29, 2020, this Court issued a per curiam order directing Austin to properly 

commence his action by filing an original jurisdiction petition for review within 30 

days. On January 27, 2021, Austin filed the Petition along with an in forma pauperis

application that was granted.2 The Petition consists of a copy of what appears to be 

Austin’s January 25, 2020, appeal of a grievance from the determination of State 

Correctional Institution (SCI) Superintendent Capozza (Capozza), but no 

documentation indicating the further disposition of Austin’s grievance by the 

Department has been provided to this Court. We will treat this filing as the 

substantive content of Austin’s Petition.3

Relevant to this appeal, the beginning of Austin’s Petition refers 

specifically to “Grievance 831647” and alleges that it was improperly dismissed as 

frivolous and in a biased manner. Petition at 1. The Petition then alleges that on 

September 24, 2019, Austin was placed in SCI-Fayette’s Restricted Housing Unit 

(RHU). Id. On October 8, 2019, he was transferred from SCI-Fayette to SCIChester.4

 Id. Austin states that he was transferred to SCI-Chester without having 

1

In light of our ultimate determination that Austin has sought review of a grievance 

determination, over which we lack both appellate and original jurisdiction, as will be discussed 

infra, we dismiss the Motion for Pre-Complaint Discovery as moot.

2 Austin used a cover sheet indicating that the Petition fell within our appellate jurisdiction.

3

If, in fact, Austin has appealed from Capozza’s determination directly to this Court and 

not to the Department’s Office of Inmate Grievances and Appeals, Austin may have failed to 

exhaust his administrative remedies prior to seeking this Court’s review. However, we are unable 

to make such a determination from the record as it is currently constituted. 

4 Austin is currently incarcerated at SCI-Houtzdale.
3

the opportunity to pack his personal property from his cell and that his property was 

not on the bus with him when he was transferred. Id. Austin asserts that on October 

17, 2019, he received some, but not all, of his personal property from SCI-Fayette. 

Id. He claims to still be missing various items including personal and legal mail, 

socks and underwear, photographs, toothpaste, prayer rugs, ice cream tickets, and a 

radio. Id. Austin alleges that the corrections officers in charge of his property 

wrongfully kept it from him and that he only signed a DC-153 inventory receipt for 

his property under their “threat, duress, and coercion.” Id. He maintains that the 

officers’ actions were intentional: “[T]he processing officers decided to take my 

property [and] hide what remained as it was not processed in front of me, nor put on 

the bus with me” when he was transferred to SCI-Chester. Id. at 2.

Austin asserts that the officers’ actions violated: the Department’s 

policy and procedures for handling inmates’ property when they are transferred (DCADM 815); the corresponding section of the Department’s Inmate Handbook; the 

Department’s Code of Ethics; and his rights under Amendments VIII and XIV of the 

United States Constitution (prohibition against cruel and unusual punishment and 

due process) and Article I, Section 1 (due process) of the Pennsylvania Constitution. 

Petition at 2 (citing U.S. Const. amend. VIII & XIV; Pa. Const. art. I, § 1). Austin 

asks that his missing property be returned to him, that the corrections officers be 

sanctioned, that the matter be “remanded” for further investigation, and that he be 

awarded $100,000 in damages. Id. 

On March 10, 2021, the Department filed preliminary objections. The 

Department’s first objection treats Austin’s Petition as an appeal of a grievance, 

which the Department asserts is internal to the Department and therefore outside this 

Court’s jurisdiction. Preliminary Objections at 2-3. The Department’s second 
4

objection, styled as a demurrer, avers that Austin has failed to establish a due process 

violation because the grievance system has been established as an adequate postdeprivation remedy for property-based allegations by inmates. Id. at 3-5. Austin 

sought an extension to respond to the Department’s preliminary objections, which 

this Court granted. Order, 5/6/21. However, Austin failed to file a response within 

the allotted time and this Court subsequently ordered the matter submitted on briefs. 

Order, 8/17/21.

II. Discussion

In reviewing preliminary objections, we shall treat as true all well and 

clearly pleaded material, relevant factual averments, and all inferences fairly 

deducible therefrom. Barndt v. Pa. Dep’t of Corr., 902 A.2d 589, 592 (Pa. Cmwlth. 

2006). However, conclusions of law and unjustified inferences are not admitted. Id. 

Preliminary objections will not be sustained unless the face of the pleadings shows 

that the law will not permit recovery, and any doubts should be resolved against 

sustaining the objections. Id.

Our Supreme Court has held that “internal prison operations are more 

properly left to the legislative and executive branches, and that prison officials must 

be allowed to exercise their judgment in the execution of policies necessary to 

preserve order and maintain security free from judicial interference.” Bronson v. 

Cent. Off. Rev. Comm., 721 A.2d 357, 358 (Pa. 1998). As such, “the procedures for 

pursuing inmate grievances and misconduct appeals are a matter of internal prison 

administration” and largely outside this Court’s jurisdiction, whether appellate or 

original. Id. at 358-59. A narrow exception exists where an inmate claims the 

violation of a specific constitutional right not otherwise limited by the Department’s 
5

regulations, keeping in mind that prison inmates “do not enjoy the same level of 

constitutional protections afforded to non-incarcerated citizens.” Id. at 359. 

Moreover, if an inmate asserts a constitutional violation, but review of the pleadings 

reflects that he is “actually contesting the factual findings resolved via the 

Department’s internal grievance process,” the claim remains outside this Court’s 

jurisdiction. Pelzer v. Pry (Pa. Cmwlth., No. 2050 C.D. 2015, filed Aug. 12, 2016), 

slip op. at 6, 2016 WL 4263936, at *3 (unreported).5

Initially, pursuant to Bronson, we lack appellate jurisdiction to consider 

the merits of Austin’s Petition to the extent it may be read as an appeal from an 

internal grievance decision. The Petition seeks our review of “Grievance 831647,”

alleges that it is being filed in accordance with the Department’s grievance policy

(DC-ADM 804), and challenges the alleged determination that the grievance was

frivolous. Petition at 1. In this regard, Austin asserts in his brief that while he 

recognizes the primacy and adequacy of the grievance process, it “missed the mark” 

here. Austin’s Br. at 1-2. It is well settled through Bronson and similar decisions 

that this Court lacks appellate jurisdiction to review the outcome of inmate 

grievances, and we may not do so in this instance.

To the extent Austin’s Petition may be read as alleging a substantive 

constitutional property right deprivation in this Court’s original jurisdiction, we note 

that “while prisoners obviously surrender a great many rights benefitting society at 

large, they remain entitled to possess undisturbed the property to which they are 

permitted in their confined setting, subject to the appropriate rules of the penal 

institution.” Whitaker v. Wetzel, 170 A.3d 568, 574 (Pa. Cmwlth. 2017). However, 

5 Pursuant to Commonwealth Court Internal Operating Procedure Section 414(a), 210 Pa. 

Code § 69.414(a), unreported panel decisions of this Court, issued after January 15, 2008, may be 

cited for their persuasive value.
6

as noted above, even where an inmate asserts a constitutional violation, if the facts 

as pleaded in the petition reflect that the true goal of seeking this Court’s review is 

to relitigate a grievance, the matter will lie beyond this Court’s jurisdiction for the 

reasons discussed above. Pelzer, slip op. at 6, 2016 WL 4263936, at *3.

Here, as noted, Austin specifies at the outset of the Petition that he is 

appealing a specific grievance (#831647), which was found frivolous by Lieutenant

Dailey (Dailey), who appears to have been the officer assigned to conduct an initial 

review of and response to the grievance, and Capozza, the facility superintendent

who would have reviewed the grievance on Austin’s appeal after it was denied by 

Dailey.

6

 Petition at 1. Austin also asserts that Dailey and Capozza erred in 

concluding that Austin had signed his DC-153 property receipt prior to being 

transferred to SCI-Chester and that Capozza “minimized” Dailey’s alleged violation 

of his grievance “response” obligations as set forth in the Department’s policy. Id. 

In his brief, Austin does allege due process violations, but does so in the context of 

the grievance process: “The evidence shows that [Austin] had property that was 

taken. [T]hough the grievance procedure did allow him to contend this deprivation, 

it did not remedy the deprivation.” Id. at 2.

Based on our review of the Petition, we conclude that Austin’s 

allegation of substantive due process violations of his property rights does not 

amount to an independent constitutional claim in this Court’s original jurisdiction. 

Rather, Austin’s Petition asks this Court to review the outcome of his grievance, 

6 DC-ADM 804 at 1-7, 2-1.
7

which as noted above is beyond the scope of this Court’s jurisdiction.7, 8 Pelzer, slip 

op. at 6, 2016 WL 4263936, at *3. We therefore sustain the Department’s 

preliminary objection asserting this Court’s lack of jurisdiction over Austin’s 

Petition.

III. Conclusion

For the foregoing reasons, we sustain the Department’s preliminary 

objection asserting that this Court lacks jurisdiction to review Austin’s Petition 

sounding in allegations concerning his unsuccessful grievance. The Petition is 

dismissed.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

7

In light of our conclusion that we lack subject matter jurisdiction to consider the merits 

of Austin’s Petition, the Department’s second preliminary objection asserting that the grievance 

procedure provided Austin with sufficient post-deprivation procedural due process is dismissed as

moot. We note, however, that Austin’s Petition does not claim either that the grievance process is 

unconstitutional or that it was not followed by SCI personnel. Petition at 1-2. 

8 To the extent Austin’s Petition may be read as asserting an independent tort claim in this 

Court’s original jurisdiction for conversion by Department personnel of his personal property, it 

fails to do so. As Austin is a pro se litigant, we may adopt a liberal construction when analyzing 

his Petition. See Mueller v. Pa. State Police Headquarters, 532 A.2d 900, 902 (Pa. Cmwlth. 1987). 

However, we are not empowered to give a pro se litigant “any particular advantage because of his 

lack of knowledge of the law.” Id. “In short, an uncounseled litigant cannot expect the court to 

act as his attorney.” Young v. Est. of Young, 138 A.3d 78, 87 (Pa. Cmwlth. 2016) (citing Smathers 

v. Smathers, 670 A.2d 1159 (Pa. Super. 1996)). Although Austin’s Petition asks in its prayer for 

relief for this Court to order return of his property as well as an award of money damages, we read 

this within the context of the rest of his Petition, which sounds more reasonably in allegations 

arising from his unsuccessful grievance than allegations arising in tort.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Austin, :

 Petitioner :

:

v. :

:

Pennsylvania Department :

of Corrections, : No. 650 M.D. 2020

Respondent :

O R D E R

AND NOW, this 1

st day of September, 2022, we sustain the first 

preliminary objection of the Pennsylvania Department of Corrections (Department) 

asserting that this Court lacks jurisdiction to review Petitioner Joseph Austin’s

(Austin) Petition for Review (Petition). We dismiss as moot the Department’s 

second preliminary objection asserting that Austin failed to state a claim as to any

due process violations, and Austin’s Motion for Pre-Complaint Discovery. The 

Petition is dismissed.

__________________________________

CHRISTINE FIZZANO CANNON, Judge