IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Burton

, :

Petitioner :

:

v. : No. 705 M.D. 2019

: Submitt ed : August 21 , 2020

Pennsylvania Department of :

Corrections

, : Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: February 9, 2021

Presently before the Court is a preliminary objection in the nature of a

demurrer filed by the Pennsylvania Department of Corrections (DOC). The DOC

filed preliminary objections to a pro se Petition for Review filed in this Court’s

original jurisdiction b y Michael Burton (Burton), an inmate at the State Correctional

Institution at Houtzdale (SCI

- Houtzdale)

. After review, we sustain the DOC’s

preliminary objection as to Burton’s due process and 42 U.S.C. § 1983 (Section

1983) claim s

.

I. BACKGROUND

Initiall y

, we note that when ruling on preliminary objections, the Court must

accept all well

- pleaded factual allegations as true, along with any reasonable2

inferences deduced therefrom. Neely v. Dep’t of Corr. , 838 A.2d 16, 19 n.4 (Pa.

Cmwlth. 2003)

. Preliminary objections should not be sustained unless it “appear[s]

with certainty that the law will not permit recovery [,] and any doubt should be

resolved by a refusal to sustain them. ” Id

.

With this standard in mind, we consider the facts as alleged by Burton. On

October 14, 2019

, while an inmate at SCI

- Houtzdale, Burton filed a grievance with

the DOC claiming that a corrections officer (CO) entered his cell on October 11,

2019, and stole several items of his personal property while d amaging his tel evision

in the process. 1 (Petition for Review (Pet.) ¶ 1; Exhibit (Ex.) A to Pet.) 2 In his

grievance , Burton claimed that other inmates in his block had suffered similar

experiences with th is CO but “may be afraid to file a grievance.” ( Ex. A to Pet .)

Burton requested that the DOC investigate the issue, including a review of the video

footage of the cell block , remov e the CO from his unit, and reimburs e Burton for his

missing and damaged property. ( Id .)

The DOC rejected Burton’s initial grievance on October 16, 2019 , explaining

it was rejecting Burton’s grievance “due to a failure to comply with” the proper

procedures set forth in DC

- ADM 804 of the DOC’s grievance process policies,

namely including proof of ownership/possession of the ite ms. 3 ( Pet. ¶ 1; Ex. B to

1 Burton alleged that missing from his cell were his “highlighters, color [ed] pencils, and

pictures [he] had out of [his] Dad who recently passed .” (Pet. ¶ 1; Ex. A to Pet.)

2 The documents attached to the Petition for Review are each labele d as an “Attachment.”

For ease of reference, we will refer to them as Exhibits.

3 DC

- ADM 804, Section 1(A)(17) provides:

An inmate filing a grievance related to a claim of missing property must provide

documentation such as a DC

- 153A, Personal Propert y Inventory Sheet; DC

- 154A,

Confiscated Items Receipt; or a Commissary/Outside Purchase Form for evidence

or proof that the property items were once in his/her possession. Failure to do so

may result in the rejection of the grievance.

(Footnote continued on next page...)3

Pet.) In addition, the DOC rejected the grievance on the grounds that “[g]roup

grievances or grievances filed on behalf of another inmate are prohibited [] ” and

“[g]rievances based upon different events must be presented separate ly.” ( Id .)

Burton thereafter filed his second grievance on October 18, 2019. ( Pet. ¶ 1;

Ex. C to Pet.) In his second grievance, Burton removed the claims regarding other

inmates and other events but otherwise stated the same claims as the first griev ance

with respect to the alleged theft of and damage to his personal property

. Burton

claimed that the CO did not provide him with a confiscation slip for the property that

was confiscated, as required by the internal policy of the DOC when conducting a

security cell inspection. ( Pet. ¶ 1 ; Ex. K to Pet.) While Burton did not provid e the

receipts for any property in his second grievance , he stated that he would “write to

[the] commissary for a copy” of the receipts. ( Pet. ¶ 1

. )

The DOC again rejected Burton’s second grievance on October 21, 2019, on

the basis that Burton had “not provide [ d ] the required documentation for proper

review as required in DC

- ADM 804 .” ( Ex. D. to Pet

. ) On October 22, 2019 , Burton

submitted a receipt for the allegedly damaged television and ask ed that it be included

with his second grievance. ( Pet. ¶ 2; Ex. E to Pet.) Burton further indicated that he

had “wr [itten t he] commissary for the other receipts” and would “copy and send”

them once received. (Ex. E to Pet.) The DOC responded to this request indicating

that Burton’s “grievance was rejected twice ” and that Burton’s only “recourse is to

appeal.” ( Id .)

Inmate Grievance S ystem Procedures Manual, DC

- ADM 804, available at

https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/804%20Inmate%20Grievan

ces.pdf (last visited Feb

. 8 , 2021).4

On October 24, 2019

, Burton appeal ed to the superintendent. With his appeal,

Burton submitted receipts and ask ed that the 15

- day requirement to submit issues be

excused because “sometimes copies [of receipts] cannot be a[c]quired and copied in

time for the initial submi[ssion].” ( Pet. ¶ 2; Ex. G to Pet.) The superintendent upheld

the rejection of Burton’s second g rievance on October 28, 2019 , explaining that

Burton’s “failure to provide the required documents led to the rejections

, ” and that

while Burton claimed he “did not have all the required receipts and 15 days is not

enough time to gather such documentation,” Burton “failed to provide any proof to

substantiate that claim.” ( Ex. H to Pet

. ) Finally, the superintendent stated that “the

submission of this appeal with all required documents attached contradicts

[Burton’s] claims of 15 days being insufficient time .” (Ex. H to Pet.)

On October 31, 2019 , Burton filed his appeal to the chief grievance officer,

wherein Burton argued that “at the least, video and witnesses should have been

enough to investigate the claim as it pertained to a crime committed by a [] [ CO] and

. . . there has been a pattern of this.” ( Pet. ¶ 3 .) Burton further claimed that he “could

have been granted . . . time to gather receipts” and asked that his issue be remanded

for an adequate investigation. ( Ex. I to Pet .) The chief grievance officer dismissed

Burton’s appeal finding Burton “failed to provide required d ocumentation with [his]

initial grievance, as well as [his] resubmitted [second] grievance.” ( Ex. J to Pet .)

Burton then filed his P etition for Review in this Court’s original jurisdiction

,

claim ing violations of the United States Constitution, specifi cally of the Due Process

Clause of the Fourteenth Amendment, the Fourth Amendment ’s protection against5

unreasonable searches and seizures, and the Ninth Amendment

. 4 Burton further

claim s a violation of the DOC’s policy regarding a CO’s ability to search an inmate’s

cell and confiscate property , DC

- ADM 203.F

. ( Pet. ¶¶ 4

- 5

. ) Burton avers that the

Fourteenth Amendment’s mandate that no “state deprive any person of life, liberty

or property without due process of law” was violated , as he had a valid property

interest and has shown that procedural due process “was [not even] afforded b ut

abridged.” (Pet. ¶ 4

. ) Burton further asserts that the rights retained by inmates under

the constitution include thos e protected by the Ninth Amendment and that “ [ e ] ven a

little Fourth [ A ] mendment protection could be applied as [Burton] has a minimal

right to ‘be secure in [his] person[], house[], papers, and effects, against

unreasonable searches.’” ( Id

. ¶ 5. (quoting U.S. C ONST . amend. IV. ) Finally, Burton

avers that he has alleged a violation of “DOC policy,” which “state[s] that [a CO]

shall not disturb an individual[’]s property whenever [the CO] wants.” ( Id .)

Burton request s that this Court afford him “ adequat e procedural due process

so that he may obtain [] and protect his property ” and that the CO “ be ordered to stop

violating the law, constitution, and [ DOC ] policy. ” (Pet.

, Wherefore C lause

. )

4 The Due Process Clause of the Fourteenth Amendment to the United States Constitution

, in relevant part, provides that “[n]o State shall . . . deprive any person of life, liberty, or property,

without due process of law.” U.S. C ONST . amend. X I V , § 1.

The Fourth Amendment to the United States Constitution, in relevant part, provides “[t]he

right of the people to be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated . . . .” U.S. C ONST . amend. IV.

The Ninth Amendment to the United States Constitution provid es that “[t]he enumeration

in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by

the peop le.” U.S. C ONST . amend. IX.6

II. PRELIMINARY OBJECTION

In response to Burton’s Petition for Review, the DOC filed a preliminary

objection in the nature of a demurrer . The DOC asserts that Burton failed to state a

due process claim because inmate grievance systems, such as the DOC’s, are an

adequate post

- deprivation remedy and an inmate must exha ust the administrative

grievance system in a complete and proper manner in compliance with critical

procedural rules

. (Preliminary Objections (PO) ¶ 11, citing Shore v. Pa

. Dep ’ t of

Corr

. , 168 A.3d 374, 3 78

- 87 (Pa. Cmwlth. 2017) ) . The DOC argue s that Bur ton did

not comply with the procedural rules requiring that he attach documentation proving

his possession of the relevant property and that Burton’s “ mere dissatisfaction with

the outcome of a grievance proceeding ” that afforded meaningful opportunities t o

respond does not amount to a denial of due process. (PO ¶¶ 14

- 15.) The DOC also

avers that to the extent Burton’s P etition for Review asserts a Section 1983 claim

against the DOC, his claim fails because “ states and state agencies are not ‘ persons ’

for purposes of Section 1983

. ” ( Id. ¶ 17 (citing Will v. Mich

. D e p ’t of State Police

,

491 U.S. 58, 70

- 71 ( 1989); Warren v. Pa

. Dep ’t of Corr. , 616 A.2d 140, 14 1

- 4 2 ( Pa.

Cmwlth

. 1992) )

. )

In its brief, the DOC further argues that Burton’s Fourth Amendment, Ninth

Amendment, and DOC policy claims are frivolous, as : (1) “[ t ] he Fourth Amendment

does not apply to prison cells because inmates do not have a reasonable expectation

of privacy ” ; (2) “[ t ] he Ninth Amen dment does not independently provide a source

of individual constitutional right [s]” ; and (3) DOC policy does not create rights in

inmates under the D ue P rocess C lause. (DOC’s Brief (Br.) at 14.)

In response to the DOC’s preliminary objection

, Burton a vers that he alleged

facts sufficient to establish that his procedural due process rights were violated.

Burton argues that “inmate grievance systems are an[] adequate post

- deprivation7

remedy . . . only in those cases where the fact

- finder conducts an act ual investigation

and reviews the property loss claim.” (Response to PO ¶ 6.) Burton asserts that

“had a fact

- finder reviewed or investigated his claims [to] even a minimal degree[,]

it could be considered adequate for a prison standard

, ” but he argues t hat “the

procedures employed at SCI [

- ] Houtzdale for review into his property loss were

inadequate.” ( Id

. at ¶ 8. ) Burton argues that the DOC deprived him of his right to

procedural due process by confiscating and damaging his property and by rejecting

his grievance due to his failure to comply with the procedural requirements under

the DOC’s policy for post

- deprivation remedy process. Burton asserts that he has

demonstrated that procedural due process was not afforded to him and, specifically

,

“ that the post

- deprivation due process was not only inadequate, it was denied

. ”

(Burton’s Br. at 2

. ) Finally, Burton agrees that to the extent his P etition for Review

could be construed as raising a claim under Section 1983 , this Court should construe

it as such. (Response to PO ¶ 9 .)

We address the DOC’s claims in its preliminary objection in turn

.

III. DISCUSSION

In ruling on preliminary objections in the nature of a demurrer, while the Court

must “ accept as true all well

- pleaded material facts ” and a ll inferences reasonably

deducible therefrom, the Court is not required to accept as true legal conclusions,

unwarranted factual inferences, argumentative allegations, or expressions of

opinions. Armstrong Cnty. Mem ’ l Hosp

. v. Dep ’t of Pub

. Welfare , 67 A.3d 160, 170

(Pa. Cmwlth

. 2013) (en banc). Because

the sustaining of a demurrer results in a denial of the [petitioner’s] claim

or a dismissal of [the petitioner’s] suit, a preliminary objection in the

nature of a demurrer should be sustained only in cases that clearly and

without a doubt fail to state a claim upon which relief may be granted

.8

Palmer v. Bartosh , 959 A.2d 508, 512 n.2 (Pa. Cmwlth. 2008)

.

We begin with whether Burton has stated a claim for violation of his

procedu ral due process rights. The Fourteenth Amendment to the United States

Constitution provides that no “State [shall] deprive any person of life, liberty, or

property, without due process of law.” U.S. C ONST . amend. XIV, § 1. To maintain

a due process challenge, a party must initially “ establish the deprivation of a

protected liberty or property interest. ” Miller v. Workers ’ Comp

. Appeal Bd

. (Pavex,

Inc.) , 918 A.2d 809, 812 (Pa. Cmwlth. 2007)

. If the party establishes a depri vation

of a protected interest, the Court will consider what type of procedural mechanism

is required to fulfill due process. Id. For the purposes of this review, similar to the

Court in Shore

, we assume that the DOC deprived Burton of a legitimate prope rty

interest and focus on whether sufficient procedural protections were provided.

Shore

, 168 A.3d at 383.

In reviewing the adequacy of the procedural protections provided, “[t]he

amount of process due depends on the context presented. ” Silo v. Ridge

, 728 A.2d

394, 399 (Pa. Cmwlth. 1999)

. It is well

- settled “that post

- deprivation remedies

satisfy the due process clause wher e the situation dictates that the State take

immediate action or it is impracticable to provide any meaningful pre

- deprivati on

process. ” Shore

, 168 A.3d at 383 (citing Tillman v. Lebanon Cnty

. Corr

. Facility

,

221 F.3d 410, 421 (3d Cir. 2000) ).

In Shore

, we examined the adequacy of the DOC’s prison grievance system

under due process and the requirements for a prisoner to state a proper procedural

due process claim. There, an inmate brought a grievance after the DOC confiscated

incoming photographs. The inmate argued that by not allowing him to view the

photographs “ and make meaningful arguments before an impartial tribunal, ” the9

DOC violated his procedural due process rights

. Shore

, 168 A.3d at 382. We

explained that

[w]hen a prison official confiscates a prisoner ’ s property in an allegedly

unauthorized way, whether it be negligently or intentionally, due

process requires only the existence of an adequate post

- deprivation

remedy because it is not feasible for a prison to provide a hearing prior

to taking property that is perceived to be contraband or against prison

regulations.

Id. at 383 (emphasis added) ( citing Hudson v. Palmer

, 468 U.S. 517, 533

- 34 (1984)

(holding “ that an unauthorized intentional deprivation of property by a state

employee does not constitute a violation of the procedural requirements of the Due

Process Clause of the Fourteenth Amendment if a meaningful post [

- ] deprivation

remedy for the loss is available” ) )

. We further examined the DOC’s grievance

procedure detailed in DC

- ADM 804, the provision under which the DOC denied

Burton’s claim in the present case

, and stat ed that “[i]n a string of unreported

decisions, this Court has concluded that the [DOC’s] grievance procedure in DC

ADM 804 is a constitutionally sufficient remedy with respect to inmates ’ claims that

the [DOC] unlawfully withheld and/or confiscated personal property. ” Shore

, 168

A.3d at 38 3 (collecting cases)

.

Shore further indicates that where there is a constitutionally adequate post

deprivation remedy, “ an inmate must exhaust the administrative grievance system in

a complete and ‘ pr o per ’ manner, and this necessitates compliance with ‘ critical

procedural rules. ’ ” Id

. (quoting Kittrell v. Watson

, 88 A.3d 1091, 1095 (Pa. Cmwlth.

2014))

. Particularly, “ a prisoner must have utilized all available remedies in

accordance with the applicable procedural rules, so that prison officials have been

given an opportunity to address the claims administratively.” Id. at 383

- 84 (quoting10

Moore v. Bennet te

, 517 F.3d 717, 725 (4th Cir. 2008) )

. Thus, in Shore

, we held that

there was no due process violation because the inmate did not properly exhaust his

remedies in the grievance process, as he never actually had requested to review the

confiscated photographs and nothing in DC

- ADM 804 prohibited such a request.

W e explained that an inmate “ cannot sit idly by during the grievance process and

[then] complain that the procedure is deficient ” before this Court. Id . at 384 ; see

also Hammon d v. Pa. Dep’t of Corr. (Pa. Cmwlth., No

. 265 M.D. 2017, filed Feb.

14, 2018) , slip op. at 6 (holding that where a “policy is facially broad enough to

allow an issue to be heard and relief to be granted, its procedure is presumptively

both meaningful and adequate”) (quotations omitted). 5 Thus, where an inmate is

“afforded meaningful opportuniti es to respond” and “received written decisions

from three different adjudicators within the” DOC, a claim for a violation of

procedural due process will fail. Shore

, 168 A.3d at 385

. Accordingly, there is no

procedural due process violation where there e xists a constitutionally adequate post

deprivation remedy and the inmate fails to adhere to the DOC’s policy for proper

procedure within the grievance system. Our decision in Shore control s here

.

In the present case, the DOC argues that Burton failed to take full advantage

of the grievance policy by not complying with the procedural rules in place requiring

that he attach proof of ownership of the property at issue

. Burton filed his initial

grievance on October 14, 20 19

, in which the DOC rejected the grievance on the

grounds that Burton failed to comply with certain procedural requirements, namely,

attaching proof of ownership for the property he claimed to be stolen or damaged.

5 Though Hammond is unreported, unreported decisions of this Court, while not binding,

may be cited for their persuasive authority pursuant to Pennsylvania Rule of Appellate Procedure

126(b), Pa.R.A.P. 126(b), and Section 414(a) of this Court’s Internal Operating Procedur es, 210

Pa. Code § 69.414(a).11

Burton filed his second grievance on Oc tober 18, 2019, but again failed to attach the

required documentation. On October 24, 2019

, Burton appeal ed to the

superintendent. Although Burton asked that the 15

- day period to submit his

grievance be excused, w e note that the event about which Burton complains occurred

on October 11 and Burton fil ed his appeal on October 24 with all of the required

documentation

. As the superintendent stated when rejecting Burton’s grievance

appeal, that Burton was able to subm it this appeal with all of the required documents

within 15 days of the incident’s occurrence contradicts Burton’s claim that he lacked

sufficient time to comply with the grievance procedures.

Similar to the inmate in Shore

, Burton “ cannot sit idly by during the grievance

process ” by ignoring the procedural requirements for a proper grievance and then

“ complain that the procedure is deficient ” before this Court. Shore , 168 A.3d at 384

.

Burton was “afforded meaningful opportunities to respond” by filin g a proper

grievance that complied with the procedural requirements and also “ received written

decisions from three different adjudicators” within the DOC explaining how his

grievance was procedurally deficient. Id . at 385

. Accordingly, Burton’s “mere

di ssatisfaction with the outcome . . . does not equate to a denial of due process

. ” Id

.

(citation omitted). 6

6 In addition, even if it is assumed that the grievance procedure was constitutionally

inadequate, Burton may have an available post

- deprivation remedy in the form of a state tort law

action against the DOC or the CO to obtain monetary damages for his destroyed or stolen property

or return of the photographs of his late father

— an averment that this Court finds particularly

disturbing

— if they were non

- contraband personal property. See, e.g.

, Morales

- Vasquez v. Pa.

Dep ’ t of Cor r. (Pa. Cmwlth. , No. 253 M.D. 2019, filed July 28, 2020) (explaining that a common

law action for conversion is an adequate post

- deprivation remedy that precludes any action for a

violation of due process); Hawkins v. Coleman Hall, C.C.F. , 453 F. App’x 208 , 21 0 (3d Cir. 2011)

(same); Austin v. Lehman , 893 F. Supp. 448 , 454 (E.D. Pa. 1995) (same ).

We have explained that

(Footnote continued on next page...)12

Therefore, Burton has failed to state a claim as a matter of law for a violation

of due process

, and, accordingly, we must sustain the DOC’s objection as to th is

claim

.

Related to Burton’s due process claim, the DOC also contends that to the

extent that Burton states a constitutional violation that could be construed as properly

brought under Section 1983 , this claim also fails becaus e the DOC is not a “person

. ”

We agree.

Section 1983 provides , in relevant part:

[e]very person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the d eprivation of any

[i] n Pennsylvania, a tort law remedy is available for the possession and/or

destruction of non

- contraband personal property by virtue of [S]ection 8522(b)(3)

of what is commonly referred to as the Sovereign Immunity Act, which waives

immunity for negligent acts concerning “ [t]he care, custody or control of personal

property in the possession or control of Commonwealth parties, including . .

. property of persons held by a Commonwealth agency. ”

Shore , 168 A.3d at 385 n.6 (quoting 42 Pa.C.S. § 8522(b)(3) ). Thus, even if we determined that

the procedure provided for in DC

- ADM 804 is a constitutionally inadequate post

- deprivation

remedy, Burt on’s claim would be precluded by the availability of a tort claim for conversion

against the DOC or the CO for damages from his destroyed or stolen property or return of the

photographs of his deceased father.

We note that, as discussed in Shore

, “[a] lthough this Court has held in unpublished

decisions that an inmate may not assert the intentional tort of conversion against employees of

the [DOC], at least to the extent the claim alleges willful misconduct, conversion does not always

rest on proof of s pecific intent to commit a wrong. ” Id . (emphasis added) (citations omitted)

(quotations omitted). Rather, “ the tort may be based on good faith actions as well as the loss

occasioning carelessness resulting from [a] defendant's negligence for which damage s may be

recovered .” Id . (emphasis added) (citations omitted) (quotations omitted). Accordingly, while

Burton’s claim of intentional wrongdoing would likely fail in a tort action, “ it is possible that

[Burton] has an adequate post

- deprivation tort remedy against the [DOC’s] employees for the

negligent possession and/or destruction of the photographs ” of Burton’s deceased father. Id

. (emphasis added) (citations omitted).13

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress

. . . .

42 U.S.C. § 1983 (emphasis added)

. Accordin gly, to be subject to suit under S ection

1983, the DOC must qualify as a “person” within the meaning of the statute.

However, “ S ection 1983 does not create substantive rights but, rather, is

the vehicle for vindicating rights conferred in the United State s Constitution or in

federal statutes.” Jae v. Good , 946 A.2d 802, 809 (Pa. Cmwlth. 2008) (emphasis

added) (citing Urbanic v. Rosenfeld , 616 A.2d 46, 52 (Pa. Cmwlth. 1992) ). In this

respect, the Supreme Court further has held that “ a State is not a ‘pers on’ within

the meaning of [ S ection] 1983 ” and that while “ S ection 1983 provides a

. . . forum

to remedy many deprivations of civil libertie s

, . . . it does not prov i de a

. . . forum

for litigants who seek a remedy against a S tate for alleged deprivations of civil

liberties ” due , in part, to State immunity under the Eleventh Amendment to the

United States Constitution

. 7 Will , 491 U.S. at 6 5

- 6 6 (emphasis added) ; Warren , 616

A.2d at 1 42 (holding that neither the Commonwealth nor the DOC is a person subject

to suit under S ection 1983)

. Thus, we find that Burton cannot use S ection 1983 as a

vehicle for his due process claim against the DOC and sustain the DOC’s objection

as to this claim.

However, with respect to Burton’s remaining claims, because the DOC

objected to Burton’s claims for violations of the Fourth Amendment, Ninth

Amendment, and DOC policy only in its brief to this C ourt, rather than raising the

matter in its preliminary objections, we decline to consider them further. See

7 The Eleventh Amendment to the United States Constitution provides that “[t]he Jud icial

power of the United States shall not be construed to extend to any suit in law or equity, commenced

or prosecuted against one of the United States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.” U.S. C ONST . amend. XI.14

Pennsylvania Rule of Civil Procedure 1028(b), Pa.R.C.P. No. 1028(b) (“All

preliminary objections shall be raised at one time.”); Buehl v. Beard , 54 A.3d 412,

41 5 n.2 (Pa. Cmwlt h. 2012) (noting that the DOC “made other challenges to the

petition for review in its brief, but this Court did not consider them because they

were not raised in its preliminary objections”)

, aff’d

, 91 A.3d 100 ( Pa. 2014)

.

IV. CONCLUSION

For the reasons stat ed , we sustain the DOC’s preliminary objection as to

Burton’s due process and Section 1983 claims. Because the DOC did not file

preliminary objections to Burton’s remaining claims , instead improperly raising its

objections for the first time i n its brief, the DOC is directed to file an answer to

Burton’s remaining claims within 30 days.

_____________________________________ RENÉE COHN JUBELIRER, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Burton, :

Petitioner :

:

v. : No. 705 M.D. 2019

: Pennsylvania Department of :

Corrections, : Respondent :

O R D E R

NOW

, February 9, 2021

, the Pennsylvania Department of Corrections ’

Preliminary Objection to the Petition for Review in the above

- captioned matter is

SUSTAINED as to Michael Burton’s due process and 42 U.S.C. § 1983 claims

. The

Pennsylvania Department of Corrections is ordered to file its answer to the

remaining claims in the Petition for Review within 30 days of this O rder.

_____________________________________ RENÉE COHN JUBELIRER, Judge