IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Feliciano, :
Petitioner :
v. : No. 588 M.D. 2019
: SUBMITTED: March 17, 2021
Pennsylvania Department :
of Corrections, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION BY JUDGE CEISLER FILED: April 13, 2021
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 Petition for Review in this Court’s original
jurisdiction. He seeks a declaratory judgment establishing that Respondent,
Pennsylvania Department of Corrections (Department), violated his procedural due
process rights during the course of punishing him for a positive drug test. In
response, the Department has filed preliminary objections, demurring to the Petition
for Review and challenging our jurisdiction to consider this matter. For the reasons
explained infra, we sustain the Department’s preliminary objection to our
jurisdiction and dismiss the Petition for Review without prejudice.
I. Facts and Procedural History
In May 2019, Feliciano’s urine was collected so that it could be tested for the
presence of illicit substances. Pet. for Review, ¶5, Ex. A.1 In August 2019,
Phamatech Laboratories, located in San Diego, California, issued a report indicating
that Feliciano’s sample had tested positive for Buprenorphine2 in the amount of 11
nanograms per milliliter. Id., ¶6, Ex. A. As a consequence, Feliciano was placed in
the Restricted Housing Unit (RHU) at SCI-Mahanoy on August 6, 2019. Id., ¶7.
Contemporaneously, the Department issued Misconduct Report D 198445 (first
misconduct report) and allegedly served it on Feliciano. Id., Ex. B.
In response, Feliciano filed an Official Inmate Grievance, numbered 817513
(first grievance), with the Department. Id., Ex. C. Hearing Examiner F. Nunez
dismissed the first misconduct report without prejudice on August 9, 2019. Id., ¶10,
Ex. D.3 Despite Examiner Nunez’s decision, the Department still rejected
Feliciano’s first grievance on August 12, 2019. Id., Ex. C. Facility Grievance
Coordinator Jane Hinman formally notified Feliciano that she had rejected the first
1
Exhibit A, which is a printout of Feliciano’s drug test results, indicates that urine was
collected from Feliciano on July 29, 2019, not May 29, 2019. This discrepancy, however, has no
bearing on our analysis in this matter.
2
Buprenorphine is a medication approved by the Food and Drug Administration for
treatment of opioid addiction and is intended for use in combination with counseling and
behavioral therapy. Buprenorphine, U.S. DEP’T OF HEALTH & HUMAN SERVS., SUBSTANCE ABUSE
AND MENTAL HEALTH SERVS. ADMIN., https://www.samhsa.gov/medication-assisted-treatment/
medications-counseling-related-conditions/buprenorphine (last visited April 12, 2021).
“[Buprenorphine] produces effects such as euphoria or respiratory depression at low to moderate
doses . . . . Because of [B]uprenorphine’s opioid effects, it can be misused, particularly by people
who do not have an opioid dependency.” Id. Buprenorphine is a Schedule III controlled substance
under Pennsylvania law. See 28 Pa. Code § 25.72(d)(10).
3
This Disciplinary Hearing Report lists the hearing date as being September 9, 2019. Pet.
for Review, Ex. D. We believe this date to be a typographical error, in light of the sequence of
events in this matter and Feliciano’s statements in his Petition for Review, and that the actual date
of this hearing was August 9, 2019.
2
grievance due to its nonconformance with the Department’s administrative policies
pertaining to “Inmate Discipline/Misconduct Procedures” and “Administrative
Custody Procedures[.]” Id., Ex. E. Coordinator Hinman directed Feliciano to discuss
the grieved matter with SCI-Mahanoy’s Program Review Committee (PRC). Id.4
Shortly thereafter, Feliciano filed a second Official Inmate Grievance on
August 15, 2019, numbered 819156 (second grievance), which Coordinator Hinman
appears to have rejected the following day. Id., Ex. F.5
Feliciano promptly filed a third Official Inmate Grievance on August 20,
2019, numbered 820178 (third grievance). Id., Ex. G. In his third grievance,
Feliciano stated that he had not been given “any type of paperwork, misconduct,
etc.” regarding the disciplinary charges that had resulted in his placement in the
RHU. Id. Feliciano claimed that the Department had consequently violated his due
4
The Department has described the PRC as:
[a] committee consisting of three (3) staff members that conducts
Administrative Custody Hearings, periodic reviews, makes
decisions regarding continued confinement in the [RHU] and/or
Special Management Unit (SMU), and hears all first level appeals
of misconducts. The committee shall consist of one staff member
from each of the following classifications: Deputy Superintendent,
who shall serve as the chairperson, Inmate Program Manager, Unit
Manager, School Principal, Drug and Alcohol Treatment Specialist
Supervisor, or Inmate Records Officer Supervisor and a
Commissioned Officer. The Superintendent may designate other
staff as committee members[;] however, if such designations are
made, they must be in writing and the Superintendent must maintain
a list of all designees. Whenever a [PRC] is convened, at least one
(1) member of the committee must be a staff member who is not
directly involved in the administration of the RHU/SMU in which
the inmate is currently housed.
DEP’T OF CORR., DC ADM 004 (1999), https://www.cor.pa.gov/About%20Us/Documents/
DOC%20Policies/004%20Criminal%20Violations.pdf (last visited April 12, 2021).
5
On the second grievance, the blank for the facility grievance coordinator’s signature
contains only the handwritten word “[r]eject.” Pet. for Review, Ex. F.
3
process rights pursuant to the United States Constitution’s Fifth, Eighth, and
Fourteenth Amendments6 and demanded “$30,000 for violated rights and pain and
suffering.” Id.
Five days later, Coordinator Hinman formally notified Feliciano that she had
rejected his second grievance because it did not conform to the Department’s
administrative policies pertaining to “Inmate Discipline/Misconduct Procedures.”
Id., Ex. H.
That same day, the Department issued Misconduct Report D 169129 (second
misconduct report) and allegedly served it upon Feliciano. Id., Ex. I. The second
misconduct report stated, in relevant part:
MISCONDUCT CHARGE OR OTHER ACTION[:] A.
Class I. Charge #22[:] Possession or use of a dangerous or
controlled substance.
STAFF MEMBER’S VERSION[:]
On July 29, 2019[,] . . . Feliciano . . . submitted a urine test
to detect the presence of drugs in his system. The test
sample was sent to [Phamatech] Laboratories . . . for
analysis. On August 2, 2019[,] [Phamatech] Laboratories
informed the institution that Feliciano’s urine test was
positive for the presence of Buprenorphine (11ng/mL). A
[gas chromatography–mass spectrometry] retest of the
sample indicated a positive result for Buprenorphine.
Note: Date of report and date of incident differ due to
original misconduct being dismissed without prejudice.
IMMEDIATE ACTION TAKEN[:] Misconduct
warranted. Not considered for informal resolution due to
seriousness of charge. Refer to Hearing Examiner for
further review.
PREHEARING CONFINEMENT[:] “No.”[7]
6
U.S. CONST. amends. V, VIII, and XIV.
7
It is not clear why this report states that Feliciano was not held in pre-hearing
confinement, given that Feliciano was detained in restricted housing between August 6, 2019, the
4
Id. The second misconduct report also stated that a hearing regarding Feliciano’s
misconduct citations would potentially be held on or after August 24, 2019. Id.
On August 26, 2019, Examiner Nunez convened a disciplinary hearing
regarding Feliciano’s positive drug test. Id., Ex. J. Feliciano pled not guilty. Id.
However, Examiner Nunez determined that the allegations of the second misconduct
report were supported by a preponderance of the evidence and found Feliciano guilty
of misconduct. Id. As punishment, Examiner Nunez ordered Feliciano to serve 30
days in disciplinary custody, retroactive to August 6, 2019. Id.
The next day, Coordinator Hinman formally notified Feliciano that she had
rejected his third grievance. Id., Ex. K. Coordinator Hinman explained she had done
so due to the third grievance’s nonconformance with the Department’s
administrative policies pertaining to “Inmate Discipline/Misconduct Procedures”
and “Administrative Custody Procedures[.]” Id. Coordinator Hinman again directed
Feliciano to discuss the grieved matter with SCI-Mahanoy’s PRC. Id.
Feliciano then filed his Petition for Review with our Court. In his Petition for
Review, Feliciano claims he was punished for allegedly testing positive via
urinalysis for Buprenorphine use. Pet. for Review, ¶¶5-17. Feliciano alleges that,
prior to the August 26, 2019 misconduct hearing, he was not provided with the
relevant misconduct paperwork or the urinalysis test results. Id., ¶¶4, 18. He
maintains that this withholding of critical evidence, as well as of the particulars
regarding the violation for which he had been charged, deprived him of sufficient
notice and “[prevented] him from marsha[l]ling the facts and prepar[ing] . . . a
defense.” Id., ¶19. Feliciano seeks a judicial declaration that the Department was
date of the first misconduct report, and August 26, 2019, the date of the disciplinary hearing
regarding Feliciano’s positive drug test. See Pet. for Review, ¶7, Exs. B, C, F, I, and J. This factual
discrepancy, however, does not affect the issues currently before us.
5
obligated to provide him with “copies of the misconduct [paperwork] and urine test
results prior to the [August 26, 2019 misconduct] hearing” and that he be awarded
“such other relief as may be just under the circumstances.” Id., Wherefore Clause,
¶¶1-3.
The Department filed preliminary objections and Feliciano responded in
opposition. The matter is now ripe for our disposition.
II. Standard of Review
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).
III. Discussion
The Department asserts two arguments in support of its preliminary
objections. First, the Department argues this Court lacks either appellate or original
jurisdiction to consider the claims raised in Feliciano’s Petition for Review. Second,
the Department demurs to Feliciano’s claims, contending he did not identify a liberty
interest that was affected by the misconduct proceedings, and therefore, the
Department was not obligated to afford him due process. Department’s Br. in
Support of Prelim. Objs at 7-8. We address these arguments in turn.
A. Appellate Jurisdiction
We agree with the Department that this Court does not have appellate
jurisdiction to consider Feliciano’s Petition for Review. It is well settled that
6
“[i]nmate misconducts are a matter of internal prison management and, thus, do not
constitute adjudications subject to appellate review.” Hill v. Dep’t of Corr., 64 A.3d
1159, 1167 (Pa. Cmwlth. 2013). To the extent that Feliciano seeks appellate review
of the Department’s misconduct proceedings pertaining to his urine test and the
related punishment imposed upon him, we sustain the Department’s preliminary
objection to our jurisdiction.
B. Original Jurisdiction
It is true that the Department’s decisions regarding inmate misconduct
convictions generally fall outside the scope of our original jurisdiction, even where
a prisoner’s constitutional rights have allegedly been violated. “Prison inmates do
not enjoy the same level of constitutional protections afforded to non-incarcerated
citizens.” Bronson v. Cent. Off. Rev. Comm., 721 A.2d 357, 359 (Pa. 1998). As we
have noted in the past, “incarceration brings about the necessary withdrawal or
limitation of many privileges and rights, a retraction justified by the considerations
underlying our penal system.” Robson v. Biester, 420 A.2d 9, 13 (Pa. Cmwlth. 1980).
However, “[t]here is a narrow exception if 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 and an opportunity to be heard.” Hill, 64 A.3d at 1167 (citation omitted);
see Hill v. Com. (Pa. Cmwlth., No. 684 M.D. 2018, filed Sept. 12, 2019), slip op. at
4, 2019 WL 4315763, at *2 (“this Court’s original jurisdiction may be invoked
where a petitioner can identify a violation of constitutional rights” by the
Department);8 Lawson v. Dep’t of Corr., 539 A.2d 69, 71 (Pa. Cmwlth. 1988)
8
Unreported Commonwealth Court opinions issued after January 15, 2008, may be cited
for their persuasive value. See Internal Operating Procedures of the Commonwealth Court §
414(a), 210 Pa. Code § 69.414(a).
7
(“where an inmate files an action in our original jurisdiction seeking review of
Department action, our inquiry must be limited to a determination of whether a
constitutional or statutory violation has occurred”). In the absence of such a
violation, the Department’s disciplinary decision is not an adjudication subject to
this Court’s review and therefore falls outside the scope of our original jurisdiction.9
Bronson, 721 A.2d at 359.
Reading Feliciano’s Petition for Review in context, it is apparent that he
claims the Department violated his constitutional right to procedural due process.
See Pet. for Review, ¶¶4-19, Ex. G. Specifically, according to Feliciano, the
Department failed to provide him with the misconduct reports and urinalysis test
results prior to the August 26, 2019 disciplinary hearing, which prevented him from
being able to adequately defend himself at that hearing against the Department’s
claim that he had used an illicit substance. Id. In the context of prison disciplinary
proceedings, three components, at minimum, must be present to satisfy an inmate’s
right to procedural due process:
[A]dvance written notice of the claimed violation[;] a
written statement of the factfinders as to the evidence
relied upon and the reasons for the disciplinary action
taken[;] . . . [and the ability] to call witnesses and present
documentary evidence in his defense when permitting him
to do so will not be unduly hazardous to institutional safety
or correctional goals.
Wolff v. McDonnell, 418 U.S. 539, 563, 566 (1974). The facts averred by Feliciano
suggest that the Department arguably did not comply with either the first or third
requirement.
9
To the extent that Feliciano’s due process claim could be interpreted as springing from
the Department’s violation of its own internal administrative regulations, we would not have
original jurisdiction to consider such a claim, as the Department’s regulations do not, in
themselves, confer upon inmates any actionable rights. See Williams v. Wetzel, 232 A.3d 652 (Pa.
2020).
8
The question remains, however, whether Feliciano was even entitled to
procedural due process under the circumstances.
Procedural due process rights are triggered by deprivation
of a legally cognizable liberty interest. For a prisoner, such
a deprivation occurs when the prison “imposes atypical
and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin v. Conner, 515
U.S. 472, 484 . . . (1995). Lesser restraints on a prisoner’s
freedom are deemed to fall “within the expected
perimeters of the sentence imposed by a court of law.” Id.
If a prisoner ha[s] no protected liberty interest in
remaining free of disciplinary custody, then the state owes
him no process before placing him in disciplinary
confinement.
Brown v. Blaine, 833 A.2d 1166, 1172 (Pa. Cmwlth. 2003). “In Sandin’s wake[,
courts] have not reached consistent conclusions for identifying the baseline from
which to measure what is atypical and significant in any particular prison system.”
Wilkinson v. Austin, 545 U.S. 209, 223 (2005); accord Aref v. Lynch, 833 F.3d 242,
253 (D.C. Cir. 2016) (noting that “[t]he Sandin Court did not define the baseline
from which to measure what is ‘atypical and significant’ in a particular prison
system, so lower court assessments have diverged[,]” and discussing how the above-
referenced portion of Sandin has been interpreted in different ways by multiple
Federal Courts of Appeals). In spite of Sandin’s ill-defined standard, we have
nevertheless consistently referenced it in determining whether inmates are entitled
to procedural due process in the context of internal prison matters. See, e.g.,
Dantzler, 218 A.3d at 523-24; Lopez v. Pa. Dep’t of Corr., 119 A.3d 1081, 1085 (Pa.
Cmwlth. 2015), aff’d sub nom. Lopez v. Wetzel, 144 A.3d 92 (Pa. 2016); Clark v.
Beard, 918 A.2d 155, 162 (Pa. Cmwlth. 2007); Luckett v. Blaine, 850 A.2d 811, 820
(Pa. Cmwlth. 2004); Weaver v. Pa. Dep’t of Corr., 829 A.2d 750, 752 (Pa. Cmwlth.
2003).
9
What has remained inconsistent, however, is our interpretation of Sandin’s
requirements, which has oscillated markedly between cases over the course of two-
plus decades. A brief review of our case law dealing with procedural due process in
prison settings is instructive.
In Chem v. Horn, we sustained a demurrer to Chem’s petition for review,
through which he sought a declaratory judgment that the Department’s drug testing
policy was unconstitutional. 725 A.2d 226 (Pa. Cmwlth. 1999). Chem stated that he
had been falsely accused of drug use on account of an erroneous urine test and had
been punished by being placed in restrictive housing and having the test results
become part of his institutional file. Id. at 227-28. Chem claimed that the
Department’s policy-based refusal to allow him to retest his urine specimen, in order
to defend against the Department’s accusation, violated his procedural due process
and equal protection rights. We found Chem’s procedural due process argument to
be lacking, in large part because we read Sandin as “[holding] that remaining in a
prison’s general population [as opposed to restricted housing] is not a protected
liberty interest[,]” 725 A.2d at 229. In doing so, we effectively concluded that this
was a bright-line rule, as we offered no specific analysis of Chem’s situation relative
to other inmates. Id.
Four years later, in Brown, we affirmed in part the Court of Common Pleas of
Greene County’s decision to dismiss Brown’s complaint on the basis of demurrer.
Relevant to this matter, we agreed with the Court of Common Pleas of Greene
County that Brown had failed to state a proper procedural due process claim
challenging misconducts he had received and the consequent punishments. 833 A.2d
at 1172. In doing so, we seemly discarded the rigidity of Chem and held that Brown
was not entitled to procedural due process because he had not “allege[d] any
10
condition of confinement that was appreciably different from the conditions of other
similarly situated inmates or that [the] 120 days in restrictive custody [Brown
received] could constitute an atypical scenario[.]” Id.10
The following year, we drifted back towards the Chem standard in Luckett,
through which we affirmed the Court of Common Pleas of Greene County’s
dismissal of Luckett’s complaint on the basis of preliminary objections filed thereto.
850 A.2d 811. Of relevance to this matter, Luckett claimed that his placement in
disciplinary custody had violated his procedural due process rights. Id. at 815. We
concluded that Luckett had not stated a procedural due process claim because
“temporary residence in [the restricted housing unit] at SCI-Greene is simply not
atypical or significant when compared to the usual incidents of prison life at that
institution.” Id. at 820. The Luckett Court did not provide any additional factual
information to explain how or why it came to this conclusion.
Three years later, in Clark, we affirmed the Court of Common Pleas of Greene
County’s dismissal at the preliminary objections stage of a complaint filed by a
number of death row inmates, through which the inmates challenged the conditions
of their confinement on procedural due process grounds. 918 A.2d 155. On appeal,
we determined that the Court of Common Pleas of Greene County had correctly
ruled that the inmates had not articulated a legally viable procedural due process
claim; though
10
The Brown Court supported this conclusion by citing Griffin v. Vaughn, 112 F.3d 703
(3d Cir. 1997), which was flatly described in an accompanying parenthetical as holding that “15
months in administrative custody [is] not atypical[.]” Brown, 833 A.2d at 1172. However, in doing
so, we inexplicably failed to mention that Griffin was adjudicated at the summary judgment stage
or that the Griffin Court employed a detailed factual and situation-specific analysis in support of
its holding that, per Sandin, Griffin was not entitled to procedural due process. Id.; see Griffin, 112
F.3d at 706-09.
11
[t]heir complaint describe[d] the conditions in the Capital
Case Unit . . . it [was] devoid of any baseline against which
to measure those conditions and determine whether they
pose[d] an “atypical and significant hardship.” . . . Nor [did
the inmates] aver that the conditions of confinement in the
Capital Case Unit [were] any more restrictive than other
types of segregated housing at SCI-Greene or SCI-
Graterford.
Id. at 162-63. This conclusion echoed the fact-specific inquiry of Brown, rather than
the hard standard of Chem.
Another eight years passed before we faced a similar situation in Lopez. Lopez
filed a mandamus petition, through which he argued that the conditions of his
housing on death row violated his constitutional rights. 119 A.3d 1081. We
dismissed Lopez’s procedural due process claims at the preliminary objections stage,
because he “[did not] establish that he has a protected liberty interest in avoiding
being housed in the capital case unit.” Id. at 1089. We based this ruling upon
Lopez’s failure to
provide a comparison with the general population[,]
outside of the fact that the general population is not
restricted to solitary confinement and a brief mention in
the relief sought section of the [p]etition that capital case
prisoners be given two extra hours of “inside the unit
recreation, as all those in the general population but in our
own capital case units.”
Id. Accordingly, the Lopez Court held that he had not averred facts which
“establish[ed] that the conditions in the capital case unit [were] so onerous as to be
an atypical and significant hardship on him in relation to the ordinary incidents of
prison life.” Id. As in Brown and Clark, we effectively determined in Lopez that
Sandin did not create a bright-line rule regarding procedural due process rights.
Even so, we once again departed from such flexibility when, in 2019, we
issued two decisions which hewed closely to our rulings in Chem and Luckett. First,
12
in Dantzler, we concluded we did not have original jurisdiction over Dantzler’s
petition for review, which challenged on procedural due process grounds a
misconduct he had received for wearing a Department-issued belt that, unbeknownst
to Dantzler, had subsequently been classified as impermissible contraband. 218 A.3d
519. We flatly stated that the punishments imposed upon Dantzler as a result of the
misconduct, 30 days of cell restriction and confiscation of the belt, were not “atypical
and significant hardships in relation to the ordinary incidents of prison life.” Id. at
523. Therefore, we held that these punishments did not implicate a protected liberty
interest and, thus, Dantzler was not entitled to procedural due process. Id. The
Dantzler Court did not do any factual analysis to support this determination
regarding atypical and significant hardship, other than to say that 30 days had not
been found to be an atypical and significant hardship by the Sandin Court,
the Brown court, or the Commonwealth Court in Horan v. Newingham (Pa.
Cmwlth., No. 2622 C.D. 2015, filed October 24, 2016), 2016 WL 6156221. See
Dantzler, 218 A.3d at 524. Second, in Sanders v. Wetzel, we sustained demurrers to
Sanders’ mandamus petition, in which he argued that the misconduct he had received
for drug possession, as well as the resultant penalty of 90 days’ disciplinary custody
and loss of his prison job, had been imposed without the required procedural due
process. 223 A.3d 735, 742 (Pa. Cmwlth. 2019). In relevant part, we interpreted
Sandin as standing for the proposition that “an inmate’s placement in segregated
confinement does not create an actionable liberty interest that would trigger due
process protection.” 223 A.3d at 742. Additionally, the Sanders Court expressly
stated that “the law does not require an inmate to be afforded due process in
connection with placement in segregated housing.” Id.
13
As shown by these cases, we have inadvertently created two parallel lines of
cases interpreting the dictates of Sandin, ones that stand in tension with each other.
This lack of consistency compels us to return to Sandin itself, so that we may
establish a firm and precise understanding of its holding. After generally articulating
the legal requirement of “atypical and significant hardship,” the Sandin Court
reviewed the case record and stated:
We hold that Conner’s discipline in segregated
confinement did not present the type of atypical,
significant deprivation in which a State might conceivably
create a liberty interest. The record shows that, at the time
of Conner’s punishment, disciplinary segregation, with
insignificant exceptions, mirrored those conditions
imposed upon inmates in administrative segregation and
protective custody.[] We note also that [Hawaii] expunged
Conner’s disciplinary record with respect to the “high
misconduct” charge nine months after Conner served time
in segregation. Thus, Conner’s confinement did not
exceed similar, but totally discretionary, confinement in
either duration or degree of restriction. Indeed, the
conditions at Halawa [Correctional Facility] involve
significant amounts of “lockdown time” even for inmates
in the general population.[] Based on a comparison
between inmates inside and outside disciplinary
segregation, [Hawaii’s] actions in placing him there for 30
days did not work a major disruption in his environment.[]
Nor does Conner’s situation present a case where
[Hawaii’s] action will inevitably affect the duration of his
sentence. Nothing in Hawaii’s code requires the parole
board to deny parole in the face of a misconduct record or
to grant parole in its absence, Haw. Rev. Stat. §§ 353–68,
353–69 (1985), even though misconduct is by regulation a
relevant consideration, Haw. Admin. Rule § 23–700–
33(b) (effective Aug. 1992). The decision to release a
prisoner rests on a myriad of considerations. And, the
prisoner is afforded procedural protection at his parole
hearing in order to explain the circumstances behind his
misconduct record. Haw. Admin. Rule §§ 23–700–31(a),
23–700–35(c), 23–700–36 (1983). The chance that a
14
finding of misconduct will alter the balance is simply too
attenuated to invoke the procedural guarantees of the Due
Process Clause. The Court rejected a similar claim in
Meachum [v. Fano, 427 U.S. 215, 229 n.8 (1976)]
(declining to afford relief on the basis that petitioner’s
transfer record might affect his future confinement and
possibility of parole).[]
We hold, therefore, that neither the Hawaii prison
regulation in question, [which required the accused to be
found guilty by the prison disciplinary committee when a
misconduct allegation was supported by substantial
evidence,] nor the Due Process Clause itself, afforded
Conner a protected liberty interest that would entitle him
to the procedural protections set forth in Wolff. The regime
to which he was subjected as a result of the misconduct
hearing was within the range of confinement to be
normally expected for [an inmate like Conner, who is]
serving an indeterminate term of 30 years to life.
Sandin, 515 U.S. at 486-87 (internal footnotes omitted). Thus, rather than creating a
per se bar against an inmate’s right to procedural due process in each situation where
internal prison discipline has been imposed, Sandin instead requires a fact-specific
inquiry. See Wilkinson, 545 U.S. at 223 (determining, through a fact-specific inquiry
per Sandin, that inmates were entitled to procedural due process before being
transferred to Supermax prison).
In keeping with this conclusion, we adopt the test created by the United States
Court of Appeals for the District of Columbia Circuit in Aref. Though we are not
bound by federal circuit or district courts’ interpretations of federal constitutional
law, such interpretations nonetheless operate as persuasive authority, which we may
use at our discretion. See Com. v. Hicks, 208 A.3d 916, 936 n.13 (Pa. 2019); Stone
Crushed P’ship v. Kassab Archbold Jackson & O’Brien, 908 A.2d 875, 884 n.10
(Pa. 2006); W. Chester Area Sch. Dist. v. A.M., 164 A.3d 620, 630 (Pa. Cmwlth.
2017). To that end, we believe Aref both accurately distills Sandin’s holding and
15
articulates the proper method for determining whether an inmate is entitled to
procedural due process in the context of an administrative determination that affects
his carceral housing situation:
[T]he proper methodology for evaluating [procedural due
process] deprivation claims under Sandin 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 prisoners
serving similar sentences. We also emphasize that a liberty
interest can potentially arise under less-severe conditions
when the deprivation is prolonged or indefinite.
Aref, 833 F.3d at 255.
Turning to the Petition for Review itself, Feliciano fails to state therein that
the punishment imposed upon him as a result of his failed drug test, i.e., 30 days of
disciplinary custody, constituted an “atypical and significant hardship . . . in relation
to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484. Nor does he offer
any averments that would allow us to come to such a conclusion at this stage in the
proceedings. There is thus nothing in the Petition for Review, as currently
constituted, that would allow us to conclude that the Department was required to
afford Feliciano with procedural due process in relation to that sanction.
Consequently, we do not have original jurisdiction to consider the Petition for
Review and will sustain the Department’s preliminary objections on that basis as
well. We will however, permit Feliciano to amend his Petition for Review within 30
days of receiving this opinion, in light of our articulation supra of clear guidance
regarding the necessary components of a legally viable procedural due process claim
in the context of internal prison matters.11
11
Given our disposition of this matter on jurisdictional grounds, it is unnecessary for us to
address the Department’s remaining demurrer-based preliminary objection.
16
IV. Conclusion
On the basis of the foregoing analysis, we sustain the Department’s
preliminary objection to our jurisdiction and dismiss the Petition for Review without
prejudice. We grant Feliciano leave to file an Amended Petition for Review within
30 days of the date he receives this opinion.
__________________________________
ELLEN CEISLER, Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Feliciano, :
Petitioner :
v. : No. 588 M.D. 2019
:
Pennsylvania Department :
of Corrections, :
Respondent :
ORDER
AND NOW, this 13th day of April, 2021, it is hereby ORDERED that
Respondent Pennsylvania Department of Corrections’ (Department) preliminary
objection to our jurisdiction over Petitioner Anthony Feliciano’s (Feliciano) Petition
for Review is SUSTAINED. Feliciano’s Petition for Review is DISMISSED
WITHOUT PREJUDICE. Feliciano shall have thirty (30) days from the date upon
which he receives this order and the attached opinion to file an Amended Petition
for Review.
__________________________________
ELLEN CEISLER, Judge