                  IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Rasheed Nifas,                                   :
                        Appellant                :
                                                 :    No. 422 C.D. 2016
                v.                               :
                                                 :    Submitted: May 6, 2016
Heidi Sroka, et al.; S. Smith;                   :
R. Snyder; J. Dupont; S. Darr;                   :
B. Murphy; C. Saylor; R. Gauntner                :



OPINION NOT REPORTED


MEMORANDUM OPINION
PER CURIAM                                                     FILED: July 29, 2016


                Rasheed Nifas (Appellant) appeals pro se from the June 23, 2015 order
of the Court of Common Pleas of Somerset County (trial court) denying his petition
to proceed in forma pauperis (IFP) and dismissing his complaint pursuant to
Pa.R.C.P. No. 240(j).1 We affirm.
                Appellant is incarcerated at the State Correctional Institution at Somerset
(SCI-Somerset). On June 3, 2015, Appellant filed a civil rights action under Section
19832 against Heidi Sroka, the Grievance Coordinator; J. Dupont, a Hearing
Examiner; R. Snyder and S. Smith, Corrections Officers; S. Darr, B. Murphy, and C.
Saylor, Mailroom Personnel; and R. Gauntner, Librarian (collectively, Appellees).

       1
         Pa.R.C.P. No. 240(j) permits a trial court, prior to ruling on an in forma pauperis request,
to dismiss an action where the trial court is satisfied that the action is frivolous. Pelzer v. Wrestle,
49 A.3d 926, 928 n.1 (Pa. Cmwlth. 2012).

       2
           Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. §1983.
              In his complaint, Appellant averred in relevant part as follows. In July
2014, the prothonotary’s office informed Appellant that they could not locate his
exhibits for docketing in another civil action and Appellant sent the prothonotary a
letter. Exhibit 2 to the complaint details the statements that Appellant made in this
letter.   Rather than reproduce them here, this Court will simply note that they
evidence sexual threats and harassment of the most profound and despicable nature.
              A trial judge reviewed the letter, determined that “the language
contained therein [was] obviously vulgar and offensive,” and forwarded it to
Appellee Sroka. (Complaint, Ex. 1.) In an accompanying letter, the trial judge stated
that Appellee Sroka could use Appellant’s correspondence to the prothonotary “in
any manner consistent with the processes, policies, and procedures of the Department
of Corrections [Department] . . . .” Id. Upon receipt of Appellant’s letter, Appellees
confiscated it and filed allegedly falsified misconduct charges against Appellant for
violating the Department’s Regulations concerning the unauthorized use of mail and
the use of abusive, obscene, or inappropriate language.        On August 11, 2014,
Appellee Dupont convened a misconduct hearing, but did not provide Appellant with
a physical copy of the trial judge’s letter to Appellee Sroka. Appellant was found
guilty of violating the Department’s regulations. (Complaint, ¶¶21-26.)
              On October 6, 2014, Appellant provided Appellee Gauntner, the
Librarian, with “legal documents . . . to be copied for an anticipated cause of action”
and Appellee Gauntner seized the legal documents.          (Complaint, ¶27.)     More
specifically, Appellee Gauntner prepared the legal documents for photocopying and
discovered that two of the five pages belonged to another inmate and seized these two
pages as contraband under Regulation 203 because it constituted “property of
another.” (Complaint, Ex. 6.)



                                           2
              Based on these averments, Appellant asserted that Appellees violated his
First Amendment right to free speech when they “read, censored, and reproduced” his
letter to the prothonotary. (Complaint, ¶34.) Appellant further asserted that Appellee
Dupont contravened his due process rights when he “deprived [Appellant] of the
letter sent by the [trial] judge to use as a defense” in the misconduct hearing.
(Complaint, ¶35.) Finally, Appellant alleged that Appellee Gauntner violated his
First Amendment right to access the courts by seizing “anticipated legal material,”
“preventing [Appellant] of the capability of filing [a] lawsuit,” and “causing
[Appellant] to suffer an actual injury.” (Complaint, ¶31.)
              By memorandum and order dated June 23, 2015, the trial court
dismissed Appellant’s complaint as frivolous and denied Appellant IFP status.
              On appeal to this Court,3 Appellant argues that the trial court erred in
dismissing his complaint as frivolous under Rule 240(j). Appellant maintains that he
has alleged viable constitutional violations.
              In relevant part, Rule 240(j)(1) states:

              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 [IFP], 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.

Pa.R.C.P. No. 240(j)(1). A frivolous action is one that “lacks an arguable basis either
in law or in fact.” Pa.R.C.P. No. 240(j)(1), Note (citation omitted). An action is

       3
          Appellate review of a decision dismissing an action pursuant to Pa.R.C.P. No. 240(j)(1) is
limited to determining whether an appellant's constitutional rights have been violated and whether
the trial court abused its discretion or committed an error of law. McGriff v. Vidovich, 699 A.2d
797, 798 n.2 (Pa. Cmwlth. 1997).



                                                 3
frivolous under Pa.R.C.P. No. 240(j)(1), if, on its face, it does not set forth a valid
cause of action. Keller v. Kinsley, 609 A.2d 567, 568 (Pa. Super. 1992).
             Appellant argues that his letter to the prothonotary was privileged legal
mail and that Appellees could not read it after receiving it from the trial judge.
Appellant also argues that he could not be disciplined for statements he made to the
prothonotary. According to Appellant, these actions constitute violations of his First
Amendment right to free speech.
             “Pennsylvania state prisoners have a First Amendment right not to have
properly marked legal mail opened outside of their presence.” Jones v. Doe, 126
A.3d 406, 408 (Pa. Cmwlth. 2015). True “legal mail” consists of correspondence
between an inmate and an attorney, which is given heightened protection because of
First Amendment concerns and the potential for interference with access to the
courts. Kaufman v. McCaughtry, 419 F.3d 678, 685-86 (7th Cir. 2005).
             However, as contrasted to mail to or from a prisoner’s lawyer, prisoner
mail sent to or received by the courts does not implicate the First Amendment right to
access the courts because they are public documents. See also Martin v. Brewer, 830
F.2d 76, 78 (7th Cir. 1987) (“[A]ll correspondence from a court to a litigant is a
public document, which prison personnel could if they want inspect in the court’s
files.”), accord Kennan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996). Somewhat
relatedly, privileged communications are traditionally deemed to be waived once they
are disclosed to a third-party. See Bagwell v. Pennsylvania Department of Education,
103 A.3d 409, 417 (Pa. Cmwlth. 2014) (en banc) (“Once attorney-client
communications are disclosed to a third party, the attorney-client privilege is deemed
waived.”).




                                          4
             Here, Appellant’s letter to the prothonotary was filed and docketed in the
record in his separate civil action and became an official public record, (Complaint,
Ex. 8), not “legal mail,” and Appellees could thereafter read its content without
infringing upon Appellant’s First Amendment rights. Further, any privilege that
Appellant possessed with respect to the letter was waived when the letter was
disclosed to the prothonotary. Consequently, Appellant’s argument is devoid of
merit.
             Moreover, it is well-established that a prisoner retains certain First
Amendment rights notwithstanding his incarceration. See, e.g., Pell v. Procunier,
417 U.S. 817, 822 (1974). Nevertheless, “lawful incarceration brings about the
necessary withdrawal or limitation of many privileges and rights, a retraction justified
by the considerations underlying our penal system.” Bell v. Wolfish, 441 U.S. 520,
545-46 (1979). In the First Amendment context, a prisoner retains only those rights
“that are not inconsistent with his status as a prisoner or with the legitimate
penological objectives of the corrections system.”      Pell, 417 U.S. at 822. It is
generally recognized that security, order, and rehabilitation are legitimate penological
objectives. See, e.g., Procunier v. Martinez, 416 U.S. 396, 413-14 (1974).
             Case law establishes that a prisoner can be disciplined for conveying
abusive language to prison employees and/or other public officials without violating
the First Amendment. See Lockett v. Suardini, 526 F.3d 866, 874 (6th Cir. 2008)
(concluding that there was no First Amendment violation where the prisoner’s
comment to a hearing officer was insulting, derogatory, and questioned her authority
as well as the integrity of the proceeding); Leonard v. Nix, 55 F.3d 370, 373-74 (8th
Cir. 1995) (concluding that there was no First Amendment violation where a prisoner
wrote a letter to an outsider using “vile language” directed at the warden). In Morgan



                                           5
v. Quarterman, 570 F.3d 663 (5th Cir. 2009), the United States Court of Appeals for
the Fifth Circuit determined that the First Amendment was not contravened where a
litigating prisoner sent an Assistant Attorney General a vulgar note written on toilet
paper and was subject to disciplinary action. The court stated that the prisoner’s note,

              demonstrated a completely unjustified disrespect for
              authority, expressed in the most unacceptably vulgar form,
              which would be offensive in mainstream society; it would
              not be tolerated from a peer member of the bar, and would
              not be tolerated from a pro se litigant in the free setting.
              The [correctional facility’s] disciplinary action serves to
              correct behavior that would seriously prejudice [the
              prisoner] when he returns to the civil world. We thus
              conclude that the [correctional facility] had a legitimate
              penological interest in rehabilitation that justified the
              disciplinary action.

Id. at 667.
              Here, the statements in Appellant’s letter were not comprised of
criticism about the operation of the court system or the prothonotary’s office. Nor
were the statements sent to a family member, paramour, or friend about a personal or
public matter. In both instances, the statements would most likely be protected by the
First Amendment to an extent that Appellant could not face discipline for exercising
his freedom of speech. However, Appellant’s statements were sexually abusive and
threatening, and, akin to the situation in Morgan, the letter was sent to a public
official of the court system. See Brown v. Levy, 73 A.3d 514, 519 (Pa. 2013) (“As the
clerk of court, the prothonotary is considered to be the Commonwealth government
as a Commonwealth officer.”) (citation omitted). Therefore, in accordance with
above case law, we conclude that the Department had a legitimate penological
interest in rehabilitation that justified the disciplinary action and Appellant’s First
Amendment claim is frivolous.


                                           6
             Appellant also argues that the Librarian of SCI-Somerset, Appellee
Gauntner, contravened his First Amendment rights in reading and confiscating legal
materials that he intended to use in connection with some unknown legal claim.
             “It is generally not a violation of the Constitution of the United States for
a correctional officer who is in charge of a legal library in a prison to look at an
inmate’s legal documents before copying them.” Graham v. Henderson, 897 F.
Supp. 1157, 1159-60 (N.D. Ind. 1994). Although confiscation of legal documents
may constitute a violation of a prisoner’s First Amendment right to petition the
courts, in order to state a cognizable claim for violation of the right to access to the
courts, a prisoner must allege and offer proof that he suffered an “actual injury” to
court access as a result of the denial. Hackett v. Horn, 751 A.2d 272, 275-76 (Pa.
Cmwlth. 2000). The United States Supreme Court has defined actual injury as the
loss or rejection of a non-frivolous legal claim regarding the sentencing or the
conditions of confinement. Id. at 276. In order to survive dismissal of a complaint, a
prisoner must describe an underlying claim and explain why it possesses arguable
merit. Christopher v. Harbury, 536 U.S. 403, 416-17 (2002).
             Here, Appellant has not provided any factual detail in his complaint
regarding what legal claim he lost, or was deprived of pursing, as a result of the
confiscation of his legal materials. Indeed, Appellant does not even discuss the
general nature of his legal claim in either his complaint or appellate brief. Therefore,
we conclude that Appellant’s First Amendment claim lacks any basis in fact or law.
             As a final matter, Appellant asserts that Appellee Dupont committed a
due process violation in failing to provide Appellant with the trial judge’s letter to
Appellees prior to the misconduct hearing. Appellant contends that the trial judge’s
letter was evidence relevant to his defense. Appellant further asserts that Appellees



                                            7
Synder and Smith falsified the misconduct report with respect to his discipline for
sending the letter to the prothonotary.
             “[W]ith respect to [a] misconduct hearing, due process is satisfied where
an inmate is afforded an opportunity to be heard and to defend against the allegedly
falsified evidence and groundless misconduct reports.” Smith v. Mensinger, 293 F.3d
641, 653-54 (3d Cir. 2002). “Thus, so long as certain procedural requirements are
satisfied, mere allegations of falsified evidence or misconduct reports, without more,
are not enough to state a due process claim.”          Id. at 654.    The Department’s
regulation on inmate discipline provides, in relevant part, that inmates will receive, if
desired, a “[h]earing before an impartial hearing examiner . . . for charges specified
by the Department in the Department . . . Inmate Handbook,” at which the inmate is
given the “[o]pportunity . . . to tell his story and to present relevant evidence.” 37 Pa.
Code §93.10(b)(2), (3).
             Here, Appellant had the opportunity to be heard at the misconduct
hearing and to present evidence on his behalf. The trial judge’s letter to Appellee
Sroka reflects that the trial judge informed Appellee Stroka that he thought the
language was “vulgar and offensive” and told her that she could use it in any manner
consistent with the Department’s policies.         (Complaint, Ex. 1.)       Contrary to
Appellant’s assertions, the exhibits to his complaint establish that, although he may
not have received a hard copy of the trial judge’s letter, he was nonetheless provided
with the information contained therein prior to the misconduct hearing. (Complaint,
Ex. 4.) See Baravordeh v. Borough Council of Prospect Park, 699 A.2d 789, 791
(Pa. Cmwlth. 1997) (“[A] court is not bound to accept as true any averments in a
complaint which are in conflict with exhibits attached to it.”). Regardless, it is
difficult to imagine how the trial judge’s letter would be relevant or beneficial to



                                            8
Appellant’s defense, especially considering that Appellant authored the letter to the
prothonotary that formed the basis of the misconduct charges. Therefore, in this
context, we conclude that Appellant’s due process claim is frivolous.
            Accordingly, having determined that the trial court did not err in
dismissing Appellant’s complaint and denying him IFP status, we affirm the trial
court’s June 23, 2015 order.




                                          9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Rasheed Nifas,                        :
                  Appellant           :
                                      :   No. 422 C.D. 2016
            v.                        :
                                      :
Heidi Sroka, et al.; S. Smith;        :
R. Snyder; J. Dupont; S. Darr;        :
B. Murphy; C. Saylor; R. Gauntner     :


PER CURIAM

                                    ORDER


            AND NOW, this 29th day of July, 2016, the order of the Court of
Common Pleas of Somerset County, dated June 23, 2015, is affirmed.
