IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Rivera, :
Appellant :
: No. 1708 C.D. 2018
v. :
: Submitted: November 15, 2019
T. Silbaugh, Michael Oppman, Mark :
Capozza, and Dorina Varner :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE McCULLOUGH FILED: September 21, 2020
Michael Rivera (Rivera), pro se, appeals from the November 29, 2018
order of the Court of Common Pleas of Fayette County (trial court) that denied his
application to proceed in forma pauperis, and sua sponte dismissed his civil rights
complaint as frivolous pursuant to section 6602(e) of the Prison Litigation Reform
Act (PLRA), 42 Pa.C.S. §6602(e).1
Rivera is an inmate currently incarcerated at Pennsylvania State
Correctional Institution (“SCI”)-Benner Township.2 In mid-August 2017, Rivera
received an “Unacceptable Correspondence Form” issued by defendant, T. Silbaugh
1
The PLRA, 42 Pa. C.S. §§6601-6608, provides for “the manner in which prisoners can
engage in prison conditions litigation, setting forth, inter alia, the definitions of such litigation,
filing fees to be paid, and the ability of the trial court to dismiss such litigation for various reasons.”
Lopez v. Haywood, 41 A.3d 184, 186 (Pa. Cmwlth. 2012).
2
During the relevant timeframe, and at the time of the September 6, 2018 filing of the
underlying complaint, Rivera was incarcerated at SCI-Fayette.
(Silbaugh), notifying Rivera that the prison had confiscated “five duplicates of
religious material” which Rivera had received in the mail from “Justice Divine
Right.” However, Rivera was permitted to receive the original document. (Complaint
(Compl.), ¶14; Ex. A.)
On August 18, 2017, Rivera filed an inmate grievance, seeking delivery
of the photocopies. Id. ¶17; Ex. C. On September 11, 2017, SCI-Fayette’s business
manager, defendant Michael Oppman (Oppman), denied Rivera’s grievance,
concluding that the denial was in accordance with administrative directive DC-ADM
803, which prohibits inmates from receiving duplicate copies of certain enumerated
items, including publications, without prior approval from the Incoming Publication
Review Committee (IPRC).3 Id. ¶18; Ex. D. Thereafter, Rivera appealed to
defendant Mark Capozza (Capozza), the Facility Manager, arguing that the five
3
Administrative Directive DC-ADM 803, titled “Inmate Mail and Incoming Publications
Procedures Manual,” was promulgated by the Department of Corrections (DOC) and governs
inmate mail and incoming publications. It provides in pertinent part, as follows:
a. . . . Inmates in general population may receive
incoming publications subject to any applicable limit on the
amount of property the inmate is permitted to store . . . .
Incoming publications will be searched for contraband and
reviewed for content. . . .
***
b. . . . Single copies of small letter-size pamphlets may
be received in regular correspondence from family members,
friends, or religious advisors.
***
i. An inmate may receive more than one copy of a publication
only with special approval of the IPRC. Approval may be
sought by submitting a DC-135A to the IPRC.
DC-ADM 803(E)(1)(a), (b), (i).
DC-ADM 803(E)(1)(i) is currently codified at 37 Pa. Code §93.2(g)(6) (“An inmate may
receive only one copy of any publication unless granted permission by the publication review
committee.”).
2
documents at issue were photocopies of a four-page religious essay entitled The
Science of Prayer, which Rivera wrote “for a publication conducive to Allah’s 5%
Nation of Gods and Earths.”4 Id., ¶20; Ex. F. He alleged that he mailed the original
essay to the editor of said publication, who later returned the original to Rivera, along
with five photocopies for Rivera “to share with other Five Percenters.” Id. Rivera
maintained that receiving photocopies of the religious essay was not prohibited by
any policy, and that the denial was not reasonably related to any penological
justification. Id. He explained that on a prior occasion, in May of 2017, while
incarcerated at SCI-Retreat, he was allowed to receive two photocopies of another
essay he wrote. Id., ¶25. Rivera argued that the denial of his photocopies on the
instant occasion was arbitrary and capricious and infringed on his First Amendment
rights to freedom of expression, religious freedom, and his right to associate with
other Five Percenters. Id. On October 3, 2017, Capozza upheld the denial of
Rivera’s grievance. Id., ¶21; Ex. G. Rivera appealed to defendant Dorina Varner
(Varner), the Chief Grievance Officer, who determined that photocopies of the
religious essay were appropriately denied under DC-ADM 803 because Rivera did
not receive prior approval from the IPRC to receive multiple photocopies of a
publication. Id., ¶¶; Exs. H, I.
Dissatisfied that his grievance was denied, Rivera initiated this action,
asserting claims for violations of 42 U.S.C. §1983 (Section 1983),5 against four DOC
4
Five Percenters believe in leading others to the path of righteousness through teachings
that include the Bible, the Koran, “The 120 Degrees,” “Supreme Mathematics,” and the “Supreme
Alphabet.” See Saunders v. Lamas, (E.D. Pa., No. CV 12-7131, filed Aug. 13, 2015), 2015 WL
9451022, at *3, report and recommendation adopted, (E.D. Pa., No. CV 12-7131, filed Dec. 23,
2015), 2015 WL 9450811.
5
Section 1983 states in relevant part:
(Footnote continued on next page…)
3
employees: Silbaugh, Oppman, Capozza, and Varner (collectively “DOC
Defendants”), in their individual and official capacities.
Rivera asserted claims under Section 1983 for alleged violation of his
rights under the First and Fourteenth Amendments6 to the United States Constitution
based on his allegation that the DOC Defendants, acting under the color of state law,
intentionally and maliciously misapplied the directives for incoming prisoner mail set
forth in administrative directive DC-ADM 803. Specifically, he averred that the
DOC Defendants erroneously and arbitrarily classified his “religious literature” as a
“publication” under DC-ADM 803, in order to render the receipt of multiple
photocopies thereof impermissible.7 (Compl., ¶¶15, 18.) He asserted that the
religious essay at issue is not a “publication” by any definition and, therefore, no
prison policy precluded his receipt of multiple photocopies of it in the mail. Id. He
further alleged that the DOC Defendants “purposefully ignored the procedural
(continued…)
Every 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
deprivation of any 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.
6
The Equal Protection Clause of the Fourteenth Amendment provides: “No State shall ...
deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV, § 1.
7
“Publication” is defined in DC-ADM 803 as: “(1) a photograph; and/or (2) printed material
that is circulated among the public for conveying information, including, but not limited to,
newspapers, magazines, hardcover or paperback books, catalogues, pamphlets, and newsletters
regardless of Postal Rates.” DC-ADM 803.
4
protections provided by [the DOC] policy” by denying him photocopies that are
permissible under DC-ADM 802. Id., ¶38.
Rivera alleged that the denial of his photocopies resulted in a violation
of his First Amendment8 right to religious freedom, particularly, “his right to
freedom of expression as a Five Percenter in Allah’s 5% Nation of Gods and Earths,
and the right to freely associate with other Five Percenters without any penological
justification or rational relationship to any [DOC] policy or law.” Id., ¶36. He also
alleged that the DOC Defendants violated his right to equal protection in violation of
the Fourteenth Amendment, and article I, section 1 of the Pennsylvania Constitution, 9
by singling him out as a “class of one,” and denying him possession of his religious
photocopies, while “all other [DOC] prisoners of [Rivera’s] same status and condition
regularly receive [religious photocopies] as a matter of [DOC] policy.” Id., ¶37.
Based on these allegations, Rivera sought a declaratory judgment that his
constitutional rights were violated, compensatory and punitive damages from each
DOC Defendant, and an injunction directing the DOC Defendants to cease denying
him photocopies of any documents that are permissible under DOC policy.
On November 29, 2018, the trial court sua sponte denied Rivera’s
application to proceed in forma pauperis and dismissed the matter as frivolous
8
The First Amendment to the United States Constitution states: “Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.” U.S. Const. amend. I.
9
Article I, section 1 of the Pennsylvania Constitution provides: “All men are born equally
free and independent, and have certain inherent and indefeasible rights, among which are those of
enjoying and defending life and liberty, of acquiring, possessing and protecting property and
reputation, and of pursuing their own happiness.” Pa. Const. art. 1, §1.
5
pursuant to section 6602(e) of the PLRA, 42 Pa.C.S. §6602(e),10 and Pa. R.C.P. No.
240(j).11 The trial court reasoned that Rivera’s complaint was a “prison conditions”
litigation matter because it involved the effect of actions by a government party on
the life of an individual confined in prison. (Trial ct. op. at 2.) The trial court
explained that Rivera was challenging the actions of prison employees, specifically
their confiscation of duplicative materials addressed to Rivera. Id. Taking the
allegations as true, the trial court concluded that the complaint there “lack[ed] any
cognizable basis for recovery.” Id. The trial court further found that the confiscation
of the material was not a “content-based” determination, and that Rivera was not
denied access to his “religious materials” (as Rivera described the document) since he
did receive the original document, but not the multiple photocopies of the same
10
Section 6601 of the PLRA defines prison conditions litigation as “civil proceedings
arising in whole or in part under Federal or State law with respect to the conditions of confinement
or the effects of actions by a government party on the life of an individual confined in prison.” 42
Pa.C.S. §6601. Pursuant to section 6602(e) of the PLRA, 42 Pa.C.S. §6602(e), a court is required
to dismiss prison conditions litigation that it deems frivolous or that fails to state a cause of action in
a situation where, as here, in forma pauperis status is sought. That provision states that a trial court
“shall dismiss prison conditions litigation at any time” if it determines, inter alia, the litigation is
“frivolous or malicious or fails to state a claim upon which relief may be granted. . . .” 42 Pa. C.S.
§6602(e)(2) (emphasis added). The PLRA defines frivolous as “[l]acking an arguable basis in
either law or in fact.” 42 Pa.C.S. §6601. See also McGriff v. Vidovich, 699 A.2d 797, 799 (Pa.
Cmwlth. 1997), appeal denied, 717 A.2d 1030 (Pa. 1998) (holding that a frivolous action, is one
that “on its face does not set forth a valid cause of action”).
11
When a litigant in a civil action seeks to proceed in forma pauperis, Pa. R.C.P. No.
240(j)(1) permits a trial court to review the complaint before allowing the action to proceed. Pa.
R.C.P. No. 240(j)(1) provides, in pertinent part:
If, simultaneous with the commencement of an action or proceeding
or the taking of an appeal, a party has filed a petition for leave to
proceed in forma pauperis, the court prior to acting upon the petition
may dismiss the action, proceeding or appeal if the allegation of
poverty is untrue or if it is satisfied that the action, proceeding or
appeal is frivolous.
6
document. Id. The trial court also determined the multiple photocopies were denied
to Rivera, consistent with DC-ADM 803, which provides that an inmate may receive
more than one copy of a publication only if the inmate has received prior approval
from IPRC, which prior approval Rivera did not seek or receive. Id. Rivera timely
filed the instant appeal.12
Before this Court, Rivera argues that his complaint stated a valid Section
1983 claim against the DOC Defendants for violation of his federal constitutional
rights. He argues that paragraph 36 of the complaint alleges a First Amendment
claim for the infringement on his right to communicate by mail, and freedom of
expression of religion after his mail was “arbitrarily curtailed by the [DOC
Defendants’] erroneous interpretation of policy and law.” (Rivera’s Br. at 7.) He
alleges that paragraph 37 of the complaint states a claim for violation of his right to
equal protection under the Fourteenth Amendment because he alleged that, on a prior
occasion, he was permitted to receive multiple photocopies in the mail, and this
“blatant[] contradiction” states a plausible claim for discrimination as a “class of
one.” Id. at 7, 9.
Discussion
Central to Rivera’s complaint is his contention that the DOC Defendants
erroneously classified his religious essay as a “publication” under DC-ADM 803. At
the outset, we must make clear that we lack jurisdiction to review the factual findings
12
Our scope of review of the trial court’s order is plenary where the trial court dismisses a
complaint sua sponte for failure to state a cause of action upon which relief may be granted. Owens
v. Shannon, 808 A.2d 607, 609 n.5 (Pa. Cmwlth. 2002). Further, our scope of review is plenary
when considering questions of law. Phillips v. A-Best Products Co., 665 A.2d 1167, 1170 (Pa.
1995).
7
and/or legal conclusions of Varner, the Chief Grievance Officer, with respect to her
denial of Rivera’s grievance.
DC-ADM 803 states that “[a]n inmate may receive more than one copy
of a publication only with special approval of the IPRC.” DC-ADM 803. Again, the
definition of “publication” includes: “[p]rinted material that is circulated among the
public for conveying information, including, but not limited to, newspapers,
magazines, hardcover or paperback books, catalogues, pamphlets, and newsletters
regardless of Postal Rates.” DC-ADM 803.
Rivera argues that his mail was arbitrarily intercepted by the DOC
Defendants’ “erroneous interpretation of” DC-ADM 803. (Rivera’s Br. at 7.) He
maintains that the religious essay at issue is not a “publication” under DC-ADM 803,
therefore, DC-ADM 803 does not apply. He argues that it is merely correspondence,
and there is no DOC policy which restricts how many religious photocopies he may
receive in the mail. Id.
The DOC Defendants’ Classification of the Religious Essay
as a “Publication” under DC-ADM 803 is not Reviewable
As an initial matter, the Court notes that the question of whether the
DOC Defendants erroneously denied Rivera five photocopies of the religious essay
by classifying them as a “publication” under DC-ADM 803 does not fall within this
Court’s appellate jurisdiction. Resolving grievances is a purely internal function of
DOC, not subject to review by a court. Bronson v. Central Office Review Committee,
721 A.2d 357 (Pa. 1998). See also Xavier v. Pennsylvania Department of
Corrections, (Pa. Cmwlth., No. 331 M.D. 2016, filed February 8, 2017), 2017 WL
526304 (unreported), aff’d per curiam (Pa., No. 14 MAP 2017, filed October 18,
2017), 2017 WL 4679681 (holding that this Court lacked jurisdiction to review the
8
decision of the prison’s chief grievance officer as to whether a photograph depicts
nudity);13 Shore v. Pennsylvania Department of Corrections, 168 A.3d 374, 382 (Pa.
Cmwlth. 2017) (holding that because DC-ADM 803 curtails any property interest that
inmate had in the photographs, and inmate’s petition for review essentially disputed
the applicability of the policy on a factual level, this Court lacked jurisdiction to
entertain inmate’s claim). This is true whether the review is sought in an appeal or in
this Court’s original jurisdiction.
Thus, to the extent Rivera disputes the applicability of the policy on a
factual level, under Bronson and its progeny, we lack appellate jurisdiction to review
either the factual findings or the legal conclusions of the Chief Grievance Officer.
Consequently, for purposes of this appeal, we must assume that the religious essay at
issue fell within the definition of “publication” under DC-ADM 803, and that five
photocopies were denied pursuant to DOC policy, which prohibits receipt of multiple
copies of publications without prior approval of the IPRC.
Nevertheless, this does not end the inquiry nor prevent our review of
Rivera’s civil rights claims. Rivera’s complaint specifically cites Section 1983 as the
basis of his claims. The substantive civil rights asserted by Rivera in his Section
1983 complaint are that DC-ADM 803 violated (1) his First Amendment right to
communicate by mail and his right to freedom of religious expression, and (2) his
right to equal protection of the laws, as established in the Fourteenth Amendment.
(Compl., ¶¶36-37.)
13
We may cite unpublished opinions as persuasive pursuant to this Court’s Internal
Operating Procedures. 210 Pa. Code §69.414(a).
9
Civil Rights Claims under Section 1983
Section 1983 creates no substantive rights; it merely provides the vehicle
for litigating deprivations of certain federal rights otherwise established. Oklahoma
City v. Tuttle, 471 U.S. 808, 817 (1985). Thus, in determining whether an inmate’s
Section 1983 complaint states a constitutional claim, we look first to see whether the
inmate has alleged an infringement of a federally protected right, Brown v.
Pennsylvania Department of Corrections, 932 A.2d 316, 318 (Pa. Cmwlth. 2007),
keeping in mind that not all deficiencies and inadequacies in prison conditions
amount to a violation of an inmate’s constitutional rights. Booth v. King, 228 F.
App’x 167, 171 (3d Cir. 2007). Also, personal involvement of defendants in an
alleged constitutional violation is a prerequisite under Section 1983. Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). To maintain a Section 1983 claim, an
inmate must allege that each defendant was directly and personally responsible for
the purported conduct and establish fault and causation on the part of each defendant.
Alfaro Motors, Inc. v. Ward, 814 F.2d 883 (2d Cir. 1987).
Lack of Personal Involvement in the Deprivation of Rivera’s Rights
At the outset, we note that Rivera has failed to meet the threshold criteria
for stating a Section 1983 claim against three of the four DOC Defendants because he
has failed to allege that they were personally involved in the denial of his religious
photocopies. Apart from Defendant Silbaugh,14 Rivera does not allege that any other
DOC Defendant had personal involvement with the actual decision to remove the
photocopies from his mail. Rather, Rivera’s sole claim against Defendants Oppman,
14
See Compl., ¶14 (alleging that T. Silbaugh issued the Unacceptable Correspondence
Form); ¶15 (alleging that T. Silbaugh denied the photocopies).
10
Capozza and Varner is that they “wrongfully denied” his administrative grievance at
various stages of the grievance procedure. See Compl., ¶¶18, 21, 23. Prison officials
whose only roles involved the denial of the prisoner’s administrative grievances
cannot be held liable under Section 1983. Shick v. Wetzel (Pa. Cmwlth., No. 583
M.D. 2016, filed Sept. 10, 2018), slip op. at 5, 2018 WL 4288663, at *3 (unreported)
(“[P]risoners have no constitutionally-protected right to a grievance procedure and
participation in after-the-fact review of a grievance or appeal is not enough to
establish personal involvement for purposes of [Section] 1983.”); Martin v. Giroux
(Pa. Cmwlth., No. 1934 C.D. 2016, filed May 26, 2017), slip op. at 8, 2017 WL
2303362, at *4 (unreported). See also Mann v. Adams, 855 F.2d 639, 640 (9th Cir.
1988); George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (“Ruling against a
prisoner on an administrative complaint does not cause or contribute to the
violation”); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Shehee v. Luttrell,
199 F.3d 295, 300 (6th Cir. 1999) (prison officials whose only roles involved the
denial of the prisoner’s administrative grievances cannot be held liable under Section
1983).
Because Rivera’s sole allegations against Defendants Oppman, Capozza
and Varner are based wholly on their participation in the grievance process, we
conclude that dismissal of the complaint as against them was warranted on this
ground alone.15
Turning next to Rivera’s First Amendment claims, we find that they fall
short of the constitutional mark.
15
This Court may affirm on other grounds where grounds for affirmance exist. Belitskus v.
Hamlin Township, 764 A.2d 669 (Pa. Cmwlth. 2000), petition for allowance of appeal denied, 775
A.2d 809 (Pa. 2001).
11
Rivera’s First Amendment Claims
Rivera alleges that the confiscation of the photocopies of his religious
essay deprived him of his First Amendment right to communicate by mail, and his
right to the free exercise of his religion. We find that Rivera has failed to allege a
plausible violation of both constitutional provisions.
Right to Communicate by Mail
To the extent that Rivera claims a First Amendment right to
communicate by mail, based on the distribution of the original, but denial of five
photocopies – there is no authority that confers such a right upon inmates. To be
sure, the First Amendment to the United States Constitution protects an inmate’s
general right to communicate by mail. See, e.g., Thornburgh v. Abbott, 490 U.S. 401
(1989) (analyzing constitutionality of regulation restricting prisoner receipt of outside
publications by mail); Turner v. Safley, 482 U.S. 78, 89 (1987) (analyzing
constitutionality of regulation restricting inmate-to-inmate mail); Bussinger v.
Department of Corrections, 29 A.3d 79, 84 (Pa. Cmwlth. 2011) (“[T]he First
Amendment to the United States Constitution has long been interpreted by the courts
as including a general right to communicate by mail.”). Indeed, interference with an
inmate’s mail can rise to the level of a constitutional violation. See Bieregu v. Reno,
59 F.3d 1445, 1451-52 (3d Cir. 1995) (involving a pattern and practice of tampering
with legal mail), overruled on other grounds by Lewis v. Casey, 518 U.S. 343 (1996).
However, the First Amendment does not guarantee prisoners an unlimited right to
unrestricted communication by mail, and it does not mean that an inmate is entitled to
receive whatever he wants through the mail. See, e.g., Sallier v. Brooks, 343 F.3d
868, 874 (6th Cir. 2003) (“Not all mail that a prisoner receives from a legal source
will implicate constitutionally protected legal mail rights.”).
12
While correspondence by mail can be a sufficiently protected right, we
conclude that Rivera has failed to raise an issue of constitutional magnitude.
Essentially, Rivera mailed out an original document and received the original plus
five copies back and he is complaining that he is not permitted to keep the
photocopies. He was not prohibited from communicating with Justice Divine Right.
The removal of the religious photocopies from his mail in no way deprived him of
any opportunity to express himself or communicate with the outside world. As such,
we conclude that the denial of the five photocopies included in the correspondence
from Justice Divine Right was inconsequential and does not state a cognizable claim
under the First Amendment. See Harr v. Litscher (W.D. Wis., No. 01-C-0159-C,
filed Oct. 19, 2001), 2001 WL 34377573, at *11 (unreported) (holding that inmate’s
claims that he was denied multiple copies of incoming documents did not deprive
him of any opportunity to express himself or communicate with the outside world
and, therefore, such denial did not constitute a violation of his First Amendment
rights); Musquez v. Sepulveda (N.D. Cal., No. C 07-5966 VRW, filed July 17, 2008),
2008 WL 2811503, at *1 (unreported) (“[A] few instances of lost mail do not amount
to more than isolated incidents insufficient to state a First Amendment claim of mail
interference.”); Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990) (holding that
complaint about undelivered catalogues fails to raise an issue of constitutional
magnitude).
Moreover, a “single, isolated interference with [an inmate’s] personal
mail [is] insufficient to constitute a First Amendment violation.” Nixon v. Secretary
of Pennsylvania Department of Corrections, 501 F. App’x 176, 178 (3d Cir. 2012).
See also Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (isolated occurrence of
opening one piece of legal mail by prison officials does not rise to a constitutional
13
claim); Lingo v. Boone, 402 F. Supp. 768, 773 (C.D. Cal. 1975) (prisoner not entitled
to monetary relief under Section 1983 where prison officials erroneously withheld a
single piece of mail on the grounds that it was inflammatory).
In this case, Rivera’s complaint only describes a single incident. 16
Although Rivera alleged that there was a deliberate mishandling of his incoming
mail, his allegation that the denial of the photocopies was based on the content of the
essay is conclusory and speculative, especially because he was not denied the
original. Such an isolated incident does not give rise to a constitutional violation.
Accordingly, we conclude that this claim does not identify the deprivation of a
federally protected interest, and without such a deprivation a viable claim under
Section 1983 has not been asserted.
Free Exercise of Religion
Next, Rivera claims that the denial of the five photocopies has interfered
with his right to religious freedom.
“Inmates clearly retain protections afforded by the First Amendment, . . .
including its directive that no law shall prohibit the free exercise of religion.”
O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citations omitted). The Free
Exercise Clause of the First Amendment prohibits prison officials from denying an
inmate “a reasonable opportunity of pursuing his faith.” Cruz v. Beto, 405 U.S. 319,
322 & n.2 (1972). However, “[l]awful incarceration brings about the necessary
withdrawal or limitation of many privileges and rights, ... aris[ing] both from the fact
of incarceration and from valid penological objectives—including deterrence of
crime, rehabilitation of prisoners, and institutional security.” O’Lone, 482 U.S. at
16
As noted, the other incident described in Rivera’s complaint resulted in his receipt of the
photocopies.
14
348 (citation omitted). In order to reconcile institutional interests and the inmate’s
interest in exercising his constitutional rights, the Supreme Court in Turner held that
“when a prison regulation impinges on inmates’ constitutional rights, the regulation is
valid if it is reasonably related to legitimate penological interests.” Turner, 482 U.S.
at 89.17
Here, Rivera has failed to demonstrate that a constitutionally protected
interest is at stake because he fails to establish that the denial of the five photocopies
impinged on his First Amendment right to the free exercise of his religion.
In Mallory v. Stanitis (Pa. Cmwlth., No. 365 C.D. 2014, filed May 5,
2015), 2015 WL 5437123 (unreported), we concluded that the facts alleged in the
inmate’s complaint did not set forth a claim of a denial of his right to the free exercise
of his religion under the First Amendment. There, an inmate was dismissed from his
job in the prison food line because his pants were rolled up above his state-issued
boots. The inmate believed he should not wear garments lower than the middle of his
shins based on his faith in Islam. The inmate brought a civil rights action claiming
the denial of his ability to engage in the religious practice of rolling up his pant leg
17
In Turner, the U.S. Supreme Court identified several factors for determining whether
there is a reasonable relation between the prison regulation and the governmental interests. First,
the regulation should operate in a neutral fashion, without regard to the content of the expression.
Second, the court should consider whether there are other avenues of expression, at de minimis cost
to the prison officials, that might be provided inmates. A third factor to consider is the impact of an
accommodation to the asserted constitutional right. Finally, the courts should consider any
evidence offered by the inmate that the regulation is an “exaggerated response” to prison concerns.
Turner, 482 U.S. at 89.
Of course, the Turner analysis is appropriate only in cases where a prison policy is
impinging on an inmate’s constitutional rights. Turner, thus, assumes as a predicate that the
plaintiff inmate has demonstrated that a constitutionally protected interest is at stake. DeHart v.
Horn, 227 F.3d 47, 51 (3d Cir. 2000). We need not address these factors because Rivera has not
demonstrated a constitutionally protected interest is at stake.
15
violated his rights under the Free Exercise Clause of the First Amendment. Id. at *2;
slip op. at 3. This Court concluded that the facts alleged in the complaint did not set
forth a claim of a denial of the inmate’s right to the free exercise of his religion under
the First Amendment because at most, the complaint established that on one occasion
the inmate was dismissed from the job site for having his pants rolled up. We
concluded that one isolated incident in which the inmate was informed that he needed
to roll his pants down and dismissed from work for the day did not amount to a
violation of the inmate’s First Amendment rights, particularly in light of the fact that
no inference can be raised that the inmate requested an accommodation for his
religious practice. Id. at *6; slip op. at 11-12. Cf. Johnson v. Varano (Pa. Cmwlth.,
No. 714 C.D. 2010, filed Mar. 9, 2011), 2011 WL 10843816 (unreported) (holding
that a single incident where a Muslim inmate was served pork did not constitute a
violation of the inmate’s First Amendment rights).
In Brown v. Department of Corrections, 265 F. App’x 107 (3d Cir.
2008), an inmate brought a civil rights complaint against prison officials, claiming,
inter alia, that his religious mail was taken in violation of the First Amendment and
his right to equal protection. The inmate’s complaint was based on an incident where
a prison official confiscated some Five Percenter newspapers that were mailed to the
inmate. In concluding that the inmate’s First Amendment rights were not violated,
the Third Circuit Court of Appeals observed that the inmate admitted he was already
receiving the newspaper from the publisher, and he did not contend that the taking of
the newspapers that were mailed to him affected his ability to study the Five
Percenters’ teachings. Id. at 110.
As in Brown and Mallory, we likewise conclude that the factual
averments in Rivera’s complaint do not give rise to a constitutional violation under
16
the First Amendment for interference on his right to free exercise of his religion.
Rivera does not allege how the denial of the photocopies hindered his ability to
undertake the free exercise of his religion. He fails to explain how the photocopies
affected his ability to engage in his particular religious practice, that the photocopies
were essential religious texts, or that he could not fulfill his duties and obligations as
a Five Percenter without them. At most, he has alleged a deprivation of extra copies
of his essay. We find that such a minimal intrusion fails to constitute a substantial
burden on the exercise of his religious beliefs.
To the extent that Rivera is arguing that the denial of the photocopies
deprived of him the right to “associate with” other Five Percenters, he does not allege
that this activity is a central part of his religious faith, nor that he is unable to practice
his religion notwithstanding his inability to directly distribute copies of his essay to
other prisoners. See Johnson v. Rees (E.D. Ky., No. 06-100, filed July 20, 2006),
2006 WL 2051609 (unreported) (inmate failed to state violation of rights under the
Free Exercise Clause of the First Amendment due to prison’s refusal to allow him to
distribute religious materials directly to other inmates). Because Rivera failed to state
a violation of rights under the First Amendment, we need not address whether the
denial of the photocopies was related to a “legitimate penological interest” under
Turner.
In sum, since Rivera was not deprived of a right secured by the
Constitution, the first requirement for a viable Section 1983 action was not met.
Rivera’s complaint, therefore, failed to state a cause of action upon which relief may
be granted under Section 1983 for violation of his First Amendment rights.18
18
Rivera has not asserted a claim under the Religious Land Use and Incarcerated Persons
Act, 42 U.S.C. §§ 2000cc-2000cc-4 (“RLUIPA”). The RLUIPA forbids state and local
(Footnote continued on next page…)
17
Rivera’s Fourteenth Amendment Claim
Next, Rivera alleges that the DOC Defendants deprived him of his equal
protection rights under the Fourteenth Amendment to the United States Constitution.
Rivera argues that the DOC Defendants intentionally mischaracterized
his religious essay as a publication in order to justify the arbitrary denial of
photocopies from being delivered in the mail – which resulted in him being singled
out “as a class of one” and denied the privilege of receiving his religious materials in
the mail. He alleges in this regard, as follows:
37. Plaintiff avers that each Defendant intentionally and
maliciously acted in concert to single Plaintiff out as a class
of one, and deny him the privilege to receive the religious
photocopies at issue in this matter through the mail, which
all other Pa. D.O.C. prisoners of Plaintiff’s same status
and condition regularly receive as a matter of [DOC]
policy, without any penological justification or rational
relationship to [DOC]t policy or law. Plaintiff avers that
(continued…)
governments that receive federal funding from imposing a “substantial burden” on the exercise of
religious beliefs unless the regulation is the least restrictive means to adequately protect a
compelling government interest. 42 U.S.C. § 2000cc(a)(1). Even if Rivera brought a RLUIPA
claim, we would find for these same reasons that he has failed to demonstrate under the RLUIPA
that his right to freely exercise his religious beliefs has been “substantially burdened.” See Thomas
v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 718 (1981) (defining
“substantial burden” as “substantial pressure on an adherent to modify his behavior and to violate
his beliefs”). See also Smith v. Allen, 502 F.3d 1255, 1278 (11th Cir. 2007) (“No substantial burden
occurs if the government action merely makes the ‘religious exercise more expensive or difficult’ or
inconvenient, but does not pressure the adherent to violate her religious beliefs or abandon one of
the precepts of her religion.”); Sullivan v. Younce (E.D. Va., No. 3:15CV10, filed February 16,
2017), 2017 WL 655175, (unreported) (holding that removal of purported religious materials from
inmate’s cell was an inconvenience, not a substantial burden on his exercise of religion).
18
the denial of the photocopies at issue in this mater clearly
show that Plaintiff was singled out for discrimination, in
violation of equal protection and due process of law.
(Compl., ¶37) (emphasis added).19
The Equal Protection Clause provides: “No State shall . . . deny to any
person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV, §1. The “class of one” theory of equal protection provides that a plaintiff states
a claim for violation of the Equal Protection Clause when he “alleges that he has been
intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.” Hill v. Borough of Kutztown, 455 F.3d
225, 239 (3d Cir. 2006) (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000)). A class of one claim alleges discrimination, not because of membership in a
particular class (e.g., race or gender), but because of an official’s “ill will” or
“spiteful effort” to harm him, or some other irrational reason. Esmail v. Macrane, 53
F.3d 176 (7th Cir. 1995). To allege an equal protection claim under a class of one
theory, a plaintiff must show that “(1) the defendant treated him differently from
others similarly situated, (2) the defendant did so intentionally, and (3) there was no
rational basis for the difference in treatment.” Phillips v. County of Allegheny, 515
F.3d 224, 243 (3d Cir. 2008) (citing Hill v. Borough of Kutztown, 455 F.3d 225, 239
(3d Cir. 2006)).
Rivera’s complaint alleges that he was treated differently than other
prisoners of his same status and condition, but he does not allege facts from which
19
Rivera contends that the trial court erred by failing to address his Fourteenth Amendment
claim. (Rivera’s Br. at 8.) Even assuming the trial court erred in failing to more explicitly identify
or address Rivera’s “class of one” Equal Protection claim, any such error was harmless because we
find such a claim to be meritless and we may affirm on any grounds supported by the record. See
Belitskus.
19
one can conclude that other members of the Five Percenters, or any other religion for
that matter, were permitted to receive multiple photocopies of published religious
materials sent to them through the mail. The complaint alleges simply that “all other
[DOC] prisoners of [his] same status and condition regularly receive [religious
photocopies] as a matter of DOC policy.” (Compl., ¶37.) This bald accusation fails
to state a claim that the DOC Defendants intentionally singled him out for
discriminatory treatment due to spite or vindictiveness. His claim is not supported by
any factual allegations. “Assertions of intentional disparate treatment must be
supported by specific factual allegations.” Myers v. Ridge, 712 A.2d 791 (Pa.
Cmwlth. 1998) (sustaining objection to prisoner’s equal protection claim); Stockton v.
Commonwealth Department of Corrections (Pa. Cmwlth., No. 765 C.D. 2012, filed
Nov. 16, 2012), slip op. at 10, 2012 WL 8679780, at *5 (unreported) (upholding
dismissal of similar claim because the inmate “set forth conclusory allegations rather
than the requisite factual predicate for an equal protection claim”). Consequently,
Rivera’s complaint fails to allege a plausible equal protection claim under the class of
one theory.
Conclusion
Because Rivera has failed to plead facts sufficient to state a claim for (1)
violation of his First Amendment right to infringement on his right to communicate
by mail or his freedom of expression of religion; or (2) violation of his Fourteenth
Amendment rights to equal protection, we must agree with the trial court that
Rivera’s complaint against the DOC Defendants is frivolous.
The order of the trial court is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Rivera, :
Appellant :
: No. 1708 C.D. 2018
v. :
:
T. Silbaugh, Michael Oppman, Mark :
Capozza, and Dorina Varner :
ORDER
AND NOW, this 21st day of September, 2020, the order of the Court of
Common Pleas of Fayette County is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge