IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Political Prisoner : (a/k/a Alton D. Brown), :

Petitioner :

:

v. : No. 4 M.D. 2022

: Submitted: March 31, 2023 Pennsylvania Department : of Corrections ; and Secretary : of Pa. DOC, :

Respondents :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE LEAVITT FILED: June 15, 2023

Political Prisoner, also known as Alton D. Brown (Brown or

Petitioner ), pro se , has filed a petition for review in the nature of a mandamus and
declaratory judgment action and also appeal s a decision of the Pennsylvania
Department of Corrections and the Secretary of Corrections (collectively,
Department)

. Brown’s petition seeks to revers e the Department’s decision to place
him on grievance restriction 1 and a declaration that the Department must follow its
applicable regulation and po lic y when reviewing his grievances. T he Department

1 A g rievance restriction limits the number and frequency of grievances that an inmate may file. See DC

- ADM 804, Inmate Grievance System Procedures Manual, Glossary of Terms. The Department’s policy is accessible online at the following URL: https://www.cor.p a.gov/About%20Us/Documents/DOC%20Policies/804%20Inmate%20Grievan ces.pdf (last visited June 1 5 , 2023).2

seeks a dismissal of Brown’s petition for its failure to state a claim and this Court’s
lack of jurisdiction . For the reasons set forth below, we dismiss the petition for

review

. Brown’s petition alleg es that the Department has “a practice of barring

[] Petitioner from the Pa. DOC Grievance process , ” set forth in 37 Pa. Code §93.9 2

and DC

- ADM 804. Petition ¶4. Brown avers that he was placed on grievance
restriction 11 times between August 2015 and December 2021 . Most recently, he
was placed on grievance restriction from September 17, 2021, to December 16,

2021

, for the stated reason that he had submitted 5 “frivolous” grievances within a

30

- day period. Id

. “The grievances were classified as frivolous because: ‘statements
made in the grievances [were] not supported by the facts.’” Id . ¶7. Brown avers that
the Department has created its “own definition ” o f “ frivolous

, ” which is a grievance

“in which the involved staff denies Petitioner’s claims.” Id

. ¶18. The petition asserts

that this definition is contrary to Department Policy DC

- ADM 804

, which defines
“frivolous grievance” as one where the “allegations or the relief sought lack any
arguable basis in law, fact and/or policy. ” DC

- ADM 804, Glossary of Terms.

Brown ’s petition alleges that his most recent grievance restriction arose

from medical matters that were not frivolous. He filed Grievance No. 941529 when
prison medical staff falsely claim ed that he had refus ed medical treatment for
Hepatitis C. Grievance No. 945872 challenged the prison’s decision to cut his diet
bag. Grievance No. 944146 challenged a decision by prison medical staff that his
request for better bedding was not a medical matter. Grievance No. 942996
challenged a recommendation of prison medical staff that he do balancing exercises
and crossword puzzles to treat his memory loss.

2 Th e text of 37 Pa. Code §93.9 is set forth, infra , in the text of this Opinion.3 Brown ’s petition alleges that the Department rejects all grievances

based on so

- called conspiracies whenever “they involve multiple issues (two or
more).” Petition ¶15. Brown had approximately 30 grievances rejected by the
Department as conspiracies because they involved multiple staff members.

The petition alleges that because of Brown’s serious medical
conditions, the “quickest way [for him] to obtain medical r elief” is by filing a
grievance under DC

- ADM 804

. Id . ¶30. By placing him on grievance restriction

, the Department has prevented him from “officially exp [ loring ] and obtaining relief
from racist, corrupt, sadistic, and retaliatory attacks from staff,” wh ich Brown
alleges “is pretty much continuously and well organized.” Id

. ¶¶6, 8.

Brown seeks to have this Court reverse the Department’s determination
to place him on g rievance r estriction. He also seeks a declaration that he “is entitled
to [the] full and complete protections” of the Department’s grievance system

established in 37 Pa. Code § 93.9 and DC

- ADM 804. Petition at 11.

The Department seeks a dismissal of Brown’s petition for review. 3 In

support, the Depart ment contends that th is Court lacks appellate jurisdiction over its
grievance decisions because they are not adjudications ; the petition does not state a

claim based upon 37 Pa. Code §93.9 or DC

- ADM 80 4 ; t he Department’s adverse
grievance decision does not state a federal civil rights claim ; and finally, the petition

does not state a cause of action under Section 1983 of the Federal Civil Rights Act 4
against either the Secretary or the Department of Corrections

.

3 No pleading, including a preliminary objection, can be filed in response to an appellate petition for review. P A .R.A.P 1516(a). In the interest of judicial economy, the court will treat the Department’s challenge to this Court’s appellate jurisdiction as a motion to quash the appellate portion of the petition for review. See Zinc Corp oration of America v. Department of Environmental Resources , 603 A.2d 288, 289 n.1 (Pa. Cmwlth. 1992).

4 42 U.S.C. §1983.4 “The question presented in a demurrer i s 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 well

- pleaded 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 inferenc es from facts, argumentative
allegations, or expressions of opinion.” Id

. To sustain preliminary objections, “it
must appear with certainty that the law will not permit 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 [petition for review] .” Id

. “Thus, the court
may determine only whether, on the basis of the [petitioner’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 grievance regulation. I t states, in relevant part, as follows :

The Department will maintain an inmate grievance system which will permit any inmate to seek review of problems which the inmate experiences during the course of confinement. The system will provide for review and r esolution of inmate grievances at the most decentralized level possible. It will also provide for review of the initial decision making and for possible appeal to the Central Office of the Department. An inmate will not be disciplined for the good faith use of the grievance systems. However, an inmate who submits a grievance for review which is false, frivolous or malicious may be subject to appropriate disciplinary procedures. A frivolous grievance is one in which the allegations or the relief sought lack any arguable basis in fact as set forth in DC

- ADM 804

-- Inmate Grievance System

, which is disseminated to inmates.5

37 Pa. Code §93.9(a) (emphasis added)

. DC

- ADM 804 , in turn, provides that “[a]n
inmate who has filed five grievances within a 30

- day period which have been
determined to be frivolous may be placed on grievance restriction. ” DC

- ADM 804,
§ 3(A)(1). A n inmate on grievance restriction is permitted to file one grievance every
15 working days. An inmate may appeal the placement on grievance restriction to
the facility manager within 15 working days, and the facility manager then has 15
working days to notify the inmate of his decision. DC

- ADM 804, §§3(B)(1)(a),
3(B)(c). Thereafter, the inmate may appeal the facility manager’s dec ision to Final

Review by t he Secretary’s Office of Inmate Grievances and Appeals. DC

- ADM
804, §3(C).
With this background, we turn to the Department’s request that we
dismiss Brown’s petition for review.

First, the Department argues that this Court lacks jurisdiction to

consider an appeal of a grievance decision

. Brown responds that decision s to restrict
access to the prison’s grievance system “constitute adjudications , sufficient to

invoke this Court’s J urisdiction (Appellate).” Brown Brief at 4 (emphasis in
original). Brown is mistaken.

It is settled that “[i]nmate misconducts are a 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. Centra l 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 of6 internal prison administration and the full panoply of rights due a defendant in a crimi nal 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 a grievance or grievance restriction . Accordingly, we will
quash the portion of Brown ’s petition addressed to this Court’s appellate jurisdiction

.

Second, the Department argues that the petition for review does not

state a mandamus claim because the Department’s regulations and 37 Pa. Code §93.9

do not create legal rights that can be enforced in a court of law

. Brown responds
that the Department’s “deviation from standard prison policy” when reviewing his
grievances has hindered his access to the grievance system provided for in 37 Pa.
Code §93.9 and DC

- ADM 804 . Brown Brief at 4

- 5.

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 an d appropriate remedy at law

. Tindell v. Department of Corrections

, 87

A.3d 1029, 1034 (Pa. Cmwlth. 2014)

. A mandamus action cannot be the vehicle to

establish legal rights or to compel the exercise of an agency’s discretion in a
particular way. Rather, it is used to enforce rights that have been clearly established.

Id

. Brown’s petition challeng es the Department’s placement o f Brown on
grievance restriction

. T his Court has held that, “[i]n general, allegations that the
Department failed to follow its regulations or internal policies cannot support a claim
based upon a vested right or duty because these administrative rules and regulations,7

unlike statutory provisions, usually do not create rights in prison inmates.” Shore v. Pennsylvania Department of Corrections

, 168 A.3d 374, 386 ( Pa. Cmwlth. 2017)

. See also Rawlings v. Wetzel (Pa. Cmwlth., No. 562 M.D. 2016, filed October 20,
2017), slip op. at 7 (unreported) 5 (“[A] failure to comply with prison policy is not a

basis for a cause of action

. ”) ; Dantzler v. Wetzel , 218 A.3d 519, 524 (Pa. Cmwlth.
2019) (a failure to comply with prison policy does not create a cause of action). In

sum, whether the Department may have erred in holding that Brown’s grievances

were frivolous cannot be addressed to a court of law under any legal theory

.

Further, t he Department’s decision on a grievance requires the exercise

of discretion. Small v. Horn , 7 2 2 A.2d 664, 670 (Pa. 1998)

. Mandamus is not
available to review the way an agency or public official has exercised discreti on. Accordingly, t he Department’s decisions under DC

- ADM 804 cannot be reviewed

in a mandamus action.

In sum, neither the regulation at 37 Pa. Code §93.9 n or the policy at

DC

- ADM 804 creates legally enforceable rights, and the Department’s exercise of

discretion in a particular manner cannot be compelled by a writ of mandamus

. For
these reasons, we sustain the Department’s demurrer to Brown’s mandamus claim.

Finally

, as to Brown’s request for a declaratory judgment that the
Department acted contrary to its own regulation , the Department repeats its position

that 37 Pa. Code §93.9 and DC

- ADM 804 do not create rights that inmates can
enforce in a court of law. Brown responds that the grievance system is

unconstitutional as implemented , arguing that he is entitled to “complete and

5 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).8

adequate/impartial investigations into his complaints ” and a fair adjudication of all
past grievances that have been denied or deemed frivolous. Petition , Relief Sought.

T he Declaratory Judgments Act, 42 Pa. C.S. §§7531

- 7541, authorize s Pennsylvania courts to “ declare rights, status, and other legal relations whether or

not further relief is or could be claimed.” 42 Pa. C.S. §7532

. The p etitioner “must
allege an interest which is direct, substantial and present, and must demonstrate the
existence of an actual controversy related to the invasion or threatened invasion of
[his] legal rights.” Waslow v. Pennsylvania Department of Education

, 984 A.2d 575

, 580 (Pa. Cmwlth. 2009)

. Brown’s petition for review rests on the alleged violations

of 37 Pa. Code §93.9 and DC

- ADM 804 , which have not created enforceable rights

in inmates. Bullock v. Horn

, 720 A.2d 1079

, 1082 n.6 (Pa. Cmwlth. 1998)

. As such,
there is no legal interest that can sustain a declaratory judgment action

. 6

For the foregoing reasons, we sustain the Department’s preliminary
objection s in the nature of a demurrer and dismiss Brown’s petition for review.

____________________________________________ MARY HANNAH LEAVITT, President Judge Emerita

Judge Fizzano Cannon did not participate in the decision in this case.

6 The Department also argues that B rown should not be granted leave to amend his petition for review . V iolations of grievance procedures do not give rise to a cognizable claim under 42 U.S.C. §1983 because the Department of Corrections is not a person

, and the Secretary is not personally i nvolved . Department Brief at 9. Brown , however, does not request leave to amend his petition in either his answer to the Department’s preliminary objections or in his brief. Notwithstanding, the filing of an amended petition for review could not remedy the deficiencies here.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Political Prisoner : (a/k/a Alton D. Brown), :

Petitioner :

:

v. : No. 4 M.D. 2022

: Pennsylvania Department : of Corrections ; and Secretary : of Pa. DOC, :

Respondents :

O R D E R

AND NOW, this 15 th day of June

, 2023, the preliminary objections and
motion to quash appeal filed by the Pennsylvania Department of Corrections and
Secretary of Corrections are SUSTAINED and GRANTED . The petition for review
filed by Political Prisoner (a/k/a Alton D. Brown) is DISMISSED

.

____________________________________________ MARY HANNAH LEAVITT, President Judge Emerita