IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Feliciano, :

Petitioner :

:

v. : No. 588 M.D. 2019

: SUBMITTED: December 17, 2021 Pennsylvania Department of : Corrections, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT , Judge 1

HONORABLE ELLEN CEISLER, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, S enior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER FILED: January 26 , 2022

Petitioner Anthony Feliciano (Feliciano), an inmate currently incarcerated

within the Commonwealth’s state prison system at the State Correctional Institution

at Mahanoy (SCI

- Mahanoy), has filed a n amended petition for r eview (Amended

Petition) in this Court ’s original jurisdiction. Therein, Feliciano seeks a declaratory

judgment establishing that Respondent Pennsylvania Department of Corrections

(Department) violated his procedural due process rights during th e course of

administratively punishing him for a positive drug test

. In response, the Department

has filed preliminary objections

, through which it demurs to the Amended Petition

and challenges our jurisdiction to consider this matter. After thorough consideration

,

we sustain the Department’s preli minary objection to our jurisdiction and dismiss

the Amended Petition with prejudice

.

1 This matter was assigned to the panel before January 3, 2022, when President Judge Emerita Leavitt became a senior judge on the Court.2 I. Background

This matter again comes to us for consideration , the better part of a year after

we sustained the Department’s jurisdictional preliminary objection to Fel iciano’s

original Petition for Review (Petition) and dismissed that P etition without prejudice

. 2

In sustaining the Department’s preliminary objection, we noted that “ the

Department’ s decisions regarding inmate misconduct convictions generally fall

outside the scope of our original juri sdiction, even where a prisoner’ s constitutional

rights have allegedly been violated. ” Feliciano I , 250 A.3d at 1274. We also made

clear, though, that “ [t]here is a narrow exception [to this rule in instances where] 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 an d an opportunity to be heard.” Id. at

1275 (quoting Hill v. Dep’t of Corr. , 64 A.3d 1159, 1167 (Pa. Cmwlth. 2013) )

. With

regard to procedural due process, we made clear that an inmate must be afforded this

constitutional right in the context of prison disc iplinary matters only where “ the

punishment imposed upon him as a result of his [misconduct] constituted an

‘ atypical and significant hardship .

. . in relation to the ordinary incidents of prison

life. ’ ” Id. at 1279 (quoting Sandin v. Conner, 515 U.S. 472 , 484 (1995) )

. Moving

on, we stated that each case of this nature “requires a fact

- specific inquiry” regarding

whether the affected inmate has suffered such a hardship . A ccordingly, we adopted 3

the multifactor test created by the United States Court of Ap peals for the District of

Columbia Circuit , which we concluded “ articulates the proper method for

2 The details of Feliciano’s situation and the particulars of his Petition are discussed at length in Feliciano v. Pennsylvania Department of Corrections

, 250 A.3d 12 69 (Pa. C mw lth

. 2021) ( Feliciano I

) , and, as such , we need not recount them here.

3 Feliciano I was a unanimous en banc published opinion and thus binding case law.3

determining whether an inmate is entitled to procedural due process in the context

of an administrative determination that affects his carceral housing situat ion [.]” Id.

Under this test,

t he proper methodology for evaluating [procedural due process] deprivation claims [of this type] . . . is to consider (i) the conditions of confinement relative to administrative segregation, (ii) the duration of that confinement generally, and (iii) the duration relative to length of administrative segregation routinely imposed on priso ners serving simila r sentences.

Id. (quoting Aref v. Lynch , 833 F.3d 242, 255 (D.C. Cir. 2016) ). We also stressed

“ that a liberty interest can potentially arise under less

- severe conditions when the

deprivation is prolonged or indefinite. ” Id. (quoting Aref , 833 F.3d at 255)

. Upon review of Feliciano’s Petition, we concluded that he had failed to make

averments therein that satisfied the requirements of this test and consequently

determined that we lacked jurisdiction to consider his action; however, we did so

without preju dice, and gave Feliciano 30 days to submit an Amended Petition in

which he had corrected the deficiencies contained in his original filing. Id. at 1279

-

80. Feliciano availed himself of this opportunity through his aforementioned

Amended Petition. In respon se, the Department submitted the preliminary objections

that are currently before us for disposition.4 II. Discussion 4

Feliciano’s Amended Petition suffers from the same jurisdictional defects that

plagued his original Petition and, as such, we lack jurisdiction to consider his action.

The Amended Petition is devoid of averments that would allow us to compare the

condition s of Feliciano’s misconduct penalty to that experienced by inmates during

normal carceral confinement. In addition, Feliciano ’s Amended Petition is silent

about whether the administrative punishment levied against him in this in stance was

more severe than th e penalties imposed upon similarly situat ed inmates , or whether

the length of that punishment is such that his liberty interest s are implicated. See

Am. Pet. ¶¶2

- 23. Therefore, Feliciano has failed to identify a personal or property

interest that would o bligate the Department to afford him adequate procedural due

process in this situation . It follows, then, that we do not have original jurisdiction

over Feliciano’s action and, in light of this

, sustain the Department’s preliminary

objection to that effect and dismiss the Amended Petition with prejudice. 5

__________________________________ ELLEN CEISLER, J udge

4 In ruling on preliminary objections, this Court accepts as true all

well

- pled allegations of material fact, as well as all inferences reasonably deducible from those facts. Key v. Pa. Dep’t of Corr.

, 185 A.3d 421 (Pa. Cmwlth. 2018). However, this Court need not accept unwarranted inferences, conclusions of law, argumentative allegations, or expressions of opinion. Id. For preliminary objections to be sustained, it must appear with certainty that the law will permit

no recovery. Id. Any doubt must be resolved in favor of the non

moving party. Id.

Dantzler v. Wetzel

, 218 A.3d 519, 522 n.3 (Pa. Cmwlth. 2019).

5 Given our disposition of this matter on jurisdictional grounds, it is unnecessary f or us to

a ddress the Department’ s remaining demurrer

- based preliminary objection.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Feliciano, :

Petitioner :

:

v. : No. 588 M.D. 2019

: Pennsylvania Department of : Corrections, :

Respondent :

O R D E R

AND NOW, this 26 th day of January, 20 2 2

, it is hereby ORDERED that

Respondent Pennsylvania Department of Corrections’ (Department) preliminary

objection to our jurisdiction ov er Petitioner Anthony Feliciano’ s (Feliciano)

Amended Petition for Review is SUSTAINED. Feliciano’ s Petition for Review is

DISMISSED WITH PREJUDICE

.

__________________________________ ELLEN CEISLER , J udge