              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Oris Alvin Barner,                                 :
                                Appellant          :
                                                   :
                v.                                 :    No. 1679 C.D. 2016
                                                   :    Submitted: February 3, 2017
Correctional Officer Pientka,                      :
M. Heenan, S. Luguis, Joseph                       :
Holly, Correction Officer Gormley,                 :
Crawford, John Kerestes, Hearing                   :
Examiner Joseph H. Dupont                          :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                        FILED: June 12, 2017

                Appellant Oris Barner (Barner) appeals from an order of the Court of
Common Pleas of Schuylkill County (trial court). The trial court dismissed as
frivolous under Pa. R.C.P. No. 240(j)1 a complaint Barner filed against correctional
officers Pientka, M. Heenan, and Crawford, hearing examiners S. Luguis and
Joseph H. Dupont, unit manager Joseph Holly, correctional sergeant Gormley, and
the superintendent at SCI-Mahanoy, John Kerestes (collectively Mahanoy

       1
          Pa. R.C.P. No. 240(j) provides, in pertinent part, that “[i]f, simultaneous with the
commencement of an action . . . 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 . . . if the allegation of
poverty is untrue or if it is satisfied that the action . . . is frivolous.” Actions that lack any basis
in law or fact are frivolous. Neitzke v. Williams, 490 U.S. 319 (1989).
Defendants). Barner’s complaint sought damages against the Mahanoy Defendants
under Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983. We affirm
the trial court’s order.
              Barner averred in his complaint the following facts. When Barner
arrived at SCI-Mahanoy in September 2014, he informed the Mahanoy Defendants
that he practiced the Rastafarian religion. (Compl. at ¶ 11.) Due to his Rastafarian
beliefs, he requested a religious exemption to the SCI-Mahanoy grooming policy.
(Compl. at ¶ 12.) Despite his efforts, the Mahanoy Defendants ordered Barner to
cut his hair. (Compl. at ¶¶ 14-36.) Barner also received multiple punishments for
refusing to cut his hair, including being marked for misconduct, instances of cell
restriction, and what Barner refers to as “Disciplinary Custody.” (Id.)
              Barner’s complaint set forth multiple counts that fall under two legal
theories. First, the complaint alleged that four of the Mahanoy Defendants—
Pientka, Holly, Gormley, and Crawford—committed malicious use of process by
attempting to prevent Barner from practicing his religion. (Compl. at ¶¶ 5-7,
11-18.) The counts alleging malicious use of process also alleged that by violating
Barner’s    First   Amendment     rights,       the   Mahanoy   Defendants   violated
Section 1983 of the Civil Rights Act of 1871. (Id.) Second, the complaint alleged
that the remaining four Mahanoy Defendants—M. Heenan, S. Luguis, John
Kerestes, and Joseph H. Dupont—conspired to commit official oppression by
depriving Barner of his ability to practice his Rastafarian faith. (Compl. at ¶¶ 7-10,
18-22.)
              The trial court dismissed the complaint as frivolous under Pa. R.C.P.
No. 240(j). In so doing, the trial court noted that Barner’s filings “appear to be
complaints about prison conditions, and as such invoke matters solely within the


                                            2
jurisdiction of prison authorities.” (Trial court order, dated August 24, 2016,
at n.1.)
              On appeal,2 Barner argues that the trial court erred in dismissing his
case as frivolous, because he alleged that his sincerely held religious beliefs justify
his request for an exemption to SCI-Mahanoy’s grooming policy.
              We agree with the trial court that Barner’s cause of action is frivolous.
Our General Assembly codified tort claims for malicious use of process, also
called wrongful use of civil proceedings or malicious prosecution, in what is
commonly referred to as the “Dragonetti Act,” 42 Pa. C.S. §§ 8351-8355, which
became effective on February 17, 1981. Shaffer v. Stewart, 473 A.2d 1017, 1019
(Pa. Super. 1984). Thus, the Dragonetti Act is applicable to causes of action
accruing thereafter. The Dragonetti Act provides, in pertinent part:
              (a) Elements of action.--A person who takes part in the
              procurement, initiation or continuation of civil
              proceedings against another is subject to liability to the
              other for wrongful use of civil proceedings [if]:
                     (1) he acts in a grossly negligent manner or
                     without probable cause and primarily for a purpose
                     other than that of securing the proper discovery
                     [sic], joinder of parties or adjudication of the claim
                     in which the proceedings are based; and
                     (2) the proceedings have terminated in favor of the
                     person against whom they are brought.




       2
         Our review of a trial court order dismissing an action pursuant to Pa. R.C.P. No. 240(j)
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), appeal denied, 717 A.2d 1030 (Pa. 1998).



                                               3
42 Pa. C.S. § 8351. To prevail in a claim under the Dragonetti Act, a “plaintiff
must show that the defendant maliciously instituted proceedings, that the defendant
lacked probable cause to institute the proceedings[,] and that the proceedings
terminated in favor of the plaintiff.” Orange Stones Co. v. City of Reading,
87 A.3d 1014, 1024 (Pa. Cmwlth. 2014).
             Here, Barner’s complaint cannot meet the elements of the Dragonetti
Act, because the complaint does not allege that the Mahanoy Defendants brought a
civil action against him. Absent an allegation of a lawsuit, we need not address the
remaining elements. The trial court correctly determined the malicious use of
process counts were frivolous.
             We also agree with the trial court that Barner cannot sustain a claim
for conspiracy to commit official oppression. “‘[C]ivil conspiracy occurs when
two or more persons combine or agree intending to commit an unlawful act or do
an otherwise lawful act by unlawful means.’”            Weaver v. Franklin Cnty.,
918 A.2d 194, 202 (Pa. Cmwlth.), appeal denied, 931 A.2d 660 (Pa. 2007)
(quoting Brown v. Blaine, 833 A.2d 1166, 1173 n.16 (Pa. Cmwlth. 2003)). A party
asserting such a claim is required to aver “material facts which will either directly
or inferentially establish elements of conspiracy.”       Brown, 833 A.2d at 1173.
“[I]n addition to alleging the above, a plaintiff must allege facts supporting a claim
for conspiracy, namely (1) the persons combined with a common purpose to do an
unlawful act or to do a lawful act by unlawful means or unlawful purpose, (2) an
overt act in furtherance of the common purpose has occurred, and (3) the plaintiff
has incurred actual legal damage.”       Weaver, 918 A.2d at 202 (citing Brown,
833 A.2d at 1173 n.16). “[A]bsent a civil cause of action for a particular act, there
can be no cause of action for civil conspiracy to commit that act.” Id.


                                          4
              Barner’s conspiracy claim fails because there is no civil cause of
action for official oppression. Official oppression is a crime.3 Barner cites to no
legal authority, nor is this Court aware of any, to support the contention that
official oppression is a valid civil claim. Barner’s conspiracy claim, therefore, is
equally untenable.
              Finally, to the extent that Barner’s complaint is based on a violation of
his First Amendment rights, Barner’s case is likewise frivolous. To succeed in a
freedom of religion claim, Barner must establish that his desire to have his hair a
certain length is a religious belief and that he is sincere in that religious belief. See
Meggett v. Pa. Dep’t of Corr., 892 A.2d 872, 879 (Pa. Cmwlth. 2006), as amended
(Apr. 24, 2006). In Meggett, this Court explained:
              The determination of whether a belief is religious and,
              therefore, entitled to protection under the First
              Amendment is a difficult one for a court of law
              established for discerning law in the secular domain.
              Acknowledging this difficulty, the Third Circuit drew on
              U.S. Supreme Court precedent[ ] to hold that the threshold
              requirements of a free exercise of religion claim are that
              the beliefs be (1) sincerely held and (2) religious in
              nature, in the inmate’s “scheme of things.” Africa v.
              Commonwealth of Pennsylvania, 662 F.2d 1025, 1030

       3
         Official oppression is defined by Section 5301 of the Crimes Code, 18 Pa. C.S. § 5301,
as follows:
       A person acting or purporting to act in an official capacity or taking advantage of
       such actual or purported capacity commits a misdemeanor of the second degree if,
       knowing that his conduct is illegal, he:
              (1) subjects another to arrest, detention, search, seizure, mistreatment, [or]
              dispossession . . . ; or
              (2) denies or impedes another in the exercise or enjoyment of any right,
              privilege, power or immunity.



                                                5
             (3d Cir. 1981). If either requirement is not satisfied, “the
             court need not reach the question, often quite difficult in
             the penological setting, whether a legitimate and
             reasonably exercised state interest outweighs the
             proffered first amendment claim.”                    Africa,
             662 F.2d at 1030.

Id. at 880 (footnote omitted). We, however, need not delve into the sincerity of
Barner’s Rastafarian beliefs, because even if Barner is sincere on this point, our
decision in Meggett instructs that the purported infringement upon Barner’s free
exercise of his religion is permissible. Id. at 884. In Meggett, this Court upheld
the restriction on hair length for a Hebrew Israelite who claimed that having
dreadlocks was part of his faith. Id. at 879, 884. This Court explained that hair
restrictions—like the one Barner currently contests—have long been upheld, and
noted that such policies serve legitimate interests like preventing the concealment
and movement of contraband, aiding in identification, and advancing hygiene. Id.
at 883-84; see also Turner v. Safley, 482 U.S. 78, 89 (1987) (holding “when a
prison regulation impinges on inmates’ constitutional rights, the regulation is valid
if it is reasonably related to legitimate penological interests”). The same rationale
holds true in Barner’s case. Hair length and grooming policies serve legitimate
penological interests and to the extent such policies infringe on Barner’s
constitutional rights, such infringement is permissible. Pursuant to our holding in
Meggett, Barner’s claim that the Mahanoy Defendants violated his First
Amendment rights is frivolous.
             Accordingly, we affirm the order of the trial court.



                                 P. KEVIN BROBSON, Judge


Judge Cosgrove concurs in the result only.
                                          6
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Oris Alvin Barner,                     :
                        Appellant      :
                                       :
            v.                         :   No. 1679 C.D. 2016
                                       :
Correctional Officer Pientka,          :
M. Heenan, S. Luguis, Joseph           :
Holly, Correction Officer Gormley,     :
Crawford, John Kerestes, Hearing       :
Examiner Joseph H. Dupont              :



                                     ORDER


            AND NOW, this 12th day of June, 2017, the order of the Court of
Common Pleas of Schuylkill County is AFFIRMED.




                              P. KEVIN BROBSON, Judge
