              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lavince Pate,                                   :
                     Appellant                  :
                                                :
             v.                                 :
                                                :
Rev. Darrell Wireman, Connie                    :
Green, Tabb Bickell, Dorina Varner,             :   No. 932 C.D. 2015
Thomas McFee, et al.                            :   Submitted: August 7, 2015

BEFORE:      HONORABLE BERNARD L. McGINLEY, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY                                   FILED: September 30, 2015
             Lavince Pate (Pate) appeals pro se from the Order of the Court of
Common Pleas of Huntingdon County (common pleas court) which dismissed sua
sponte Pate’s complaint as frivolous pursuant to Section 6602(e) of the Prisoner
Litigation Reform Act (PLRA), 42 Pa.C.S. §6602(e)1 and Pa.R.C.P. No. 240(j)2.


      1
        Section 6602 of the PLRA, 42 Pa.C.S. §6602 provides:
              (e) Dismissal of litigation.- Notwithstanding any filing fee which
              has been paid, the court shall dismiss prison conditions litigation at
              any time, including prior to service on the defendant, if the court
              determines any of the following:
              ….
              (2) The prison conditions litigation is frivolous or malicious or
              fails to state a claim upon which relief may be granted or the
              defendant is entitled to assert a valid affirmative defense, including
              immunity, which, if asserted, would preclude the relief.
      2
        Pa.R.C.P. No. 240(j)(1) provides:
              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
            On February 20, 2014, Pate, an inmate housed at the State
Correctional Institution at Huntingdon (SCI-Huntingdon), was denied a Rastafarian
hair grooming exemption by Darrel Wireman, the Chaplaincy Program Director at
SCI-Huntingdon.


            On March 3, 2014, Pate filed an Official Inmate Grievance
(Grievance) and alleged:

            Appeal of hair length exemption denial, for Rastafarian,
            on 2-20-14 I submitted an Inmate Accommodation
            Request Form dated May 23, 2013 for Rastafari religious
            services and again in January 2014, I submitted yet
            another Religious Accommodation Request Form,
            requesting Rastafari religious services. I submitted these
            [sic] that I could learn more about my religion as well as
            worshipping with my spiritual congregation. ‘Classes in
            Catholicism are given by the chaplain in addition to
            regular services.’ I am being discriminated against and
            denied equal protection. I am requesting the decision of
            chaplain Wireman be reversed. Additionally, [sic] no
            Rastafarian minister was consulted as is the procedure
            when dealing with other religious groups here on internal
            matters of their particular religions.
Official Inmate Grievance, March 3, 2014, at 1; See Exhibit 3. (Emphasis added.)


            On March 10, 2014, Pate’s Grievance was rejected because
“[g]rievances based upon different events must be presented separately,” and “[t]he
grievance was not submitted within fifteen [15] working days after the events upon
which claims are based.” Inmate Grievance Rejection, March 10, 2014, at 1; See
Exhibit 4. Connie Green, the Facility Grievance Coordinator at SCI-Huntingdon,


            the allegation of poverty is untrue or if it is satisfied that the action,
            proceeding or appeal is frivolous.


                                                2
also informed Pate that “[i]f you can provide information or dates to show
timeliness, you may resubmit your grievance….” Inmate Grievance Rejection,
March 10, 2014, at 1; See Exhibit 4. (Emphasis added.)


            On March 23, 2014, Pate appealed the denial of his Grievance.


            On April 14, 2014, Tabb Bickell, Facility Manager at SCI-
Huntingdon, upheld the rejection of Pate’s Grievance and informed Pate:

            In reviewing your grievance and appeal, I note that your
            original grievance was rejected because grievances based
            upon different events must be submitted separately and it
            was not submitted within 15 working days of the events
            upon which your claims are based. In your appeal to this
            rejected grievance, you argue your grievance was
            properly submitted as these are ongoing issues. You
            have presented two separate issues in your initial
            grievance. One concerns a hair length exemption, and
            the other concerns providing Rastafarian worship
            services. While these may be ongoing issues, grievances
            are based on events. In your initial grievance, you state
            you submitted a religious accommodation form on 5-23-
            13 and again in January 2014. You submitted your
            grievance on 3-3-14 which is clearly more than 15
            working days from your submissions. You provided no
            other information to explain how your grievance is
            timely; therefore, I must agree it has been properly
            rejected.
Inmate Grievance Rejection, April 14, 2014, at 1; See Exhibit 6. (Emphasis
added.)


            Pate appealed and Dorina Varner, Chief Grievance Officer, dismissed
Pate’s appeal on May 29, 2014, again because Pate did not submit separate



                                        3
grievances based upon different events and because he did not act timely. Final
Appeal Decision, May 29, 2014, at 1; See Exhibit 8.


              On or about September 3, 2014, Pate filed his complaint against
Darrell Wireman, Connie Green, Tabb Bickell, Dorina Varner, Thomas McFee
(collectively, Appellees) in the common pleas court along with an application to
proceed in forma pauperis. Pate alleged:

                           1V. [sic] STATEMENT OF FACTS

              On February 20, 2014, Respondents Wireman and
              McFee, of the chaplaincy department, refused
              petitioner’s request for a Rastafari hair exemption
              religious accommodation, without legitimate reason,
              depriving petitioner [Pate] of his constitutional right to
              practice his religion….

              11. On March 10, 2014, Respondent Connie Green
              falsified official documents to deem petitioner’s [Pate’s]
              appeal untimely, and violate his constitutional right to
              religious freedom[3]….
              ….
              13. Petitioner [Pate] has filed no previous lawsuits
              concerning this matter.
              ….
              14. Petitioner [Pate] appealed religious accommodation
              denial utilizing all channels provided by the Department
              of Corrections to the Chief Grievance Officer, prior to
              filing this civil action.
              ….

       3
          This Court must note that the common pleas court’s October 27, 2014, decision contains
crucial typographical errors. The common pleas court incorrectly referred to March 3, 2013, as
the date when Pate filed an Official Inmate Grievance Form. However, it appears that Pate filed
that document on March 3, 2014. While that may be a clearly discernable typographical error,
the common pleas court judge also accepted February 2, 2014, as the date of the event for which
Pate filed a Grievance. Conversely, Pate alleged both in his brief and Exhibit 3 that the correct
date was February 20, 2014.


                                               4
                               COUNT ONE:
                   VII. FIRST AMENDMENT VIOLATION
            ….
            17. Respondents Wireman, McFee, Bickell, Green and
            Varner intentionally violated the Petitioner’s rights under
            the First Amendment of the United States Constitution
            when they:

            Religious Discrimination:
            (a) violated DC-ADM 819 Sec. 4B., 2d.,: ‘within 20
            working days, the FCPD [Facility Chaplain Program
            Director] will do the following: (2) interview the inmate
            and evaluate the sincerity of the inmate’s request.’ Id….
            Respondents revealed, at the beginning of Petitioner’s
            interview that they knew nothing of Petitioner’s [Pate’s]
            faith and so lack the knowledge to gage Petitioner’s
            [Pate’s] sincerity.

            (b) force Petitioner to cut the locks of his hair until he is
            permitted to re-submit another religious accommodation
            request one year later pursuant to DC-ADM 819 Sec.
            4.B, 2.h, (2)(c) which states: ‘inmate may not reapply for
            a grooming exemption until one year after the date of
            notification of the denial, revocation OR one year after
            notification of a final denial of the inmate grieved the
            decision.’ Id….

            (c) violated the Equal Protection Clause of the First
            Amendment [sic] by forcing a bigger burden on inmates
            professing the RastafarI [sic] faith then [sic] any other
            faith group. The lack of Rasta religious services, lack of
            Rasta Faith Group Leader and the lack of Rasta based
            faith gathering creates a bigger burden on the Rasta
            inmates to prove their sincerity and obtain religious
            considerations….

Complaint, August 21, 2014, at 3-4. (Emphasis added.)




                                         5
           On September 8, 2014, the common pleas court dismissed Pate’s
complaint sua sponte as frivolous pursuant to Pa. R.C.P. No. 240(j)(1). The
common pleas court determined:

           On February 20, 2014, Lavince Pate…was denied a
           Rastafarian hair grooming exemption….According to
           DC-ADM 819, Religious Activities Procedures Manual
           Section 4- ‘Religious Accommodations,’ an inmate who
           is denied a grooming exemption cannot reapply for a
           grooming exemption until one year after the date of his
           or her notification. On March 3, 2013, [sic] Plaintiff
           [Pate] filed an Official Inmate Grievance Form. Plaintiff
           [Pate] cites three specific instances where he sought
           relief (i.e. May 23, 2013; January 2014; and February 2,
           2014). Plaintiff [Pate] alleged that his denial of relief in
           these instances constitutes discrimination and a denial of
           his equal protection of the law. Plaintiff [Pate] also
           asked for the decision of Defendant Wireman to be
           reversed and inquired into why no Rastafarian ministers
           were consulted in his case.
           ….
           The Defendants did not discriminate against Plaintiff
           [Pate] because of his religion. In fact, the measures that
           the Pennsylvania Department of Corrections went to in
           ensuring that Plaintiff was treated fairly have gone above
           and beyond what should be expected for a State
           Correctional facility. Defendants gave Plaintiff the
           opportunity to petition for a hair groom exemption, file
           an official inmate grievance, and appeal all decisions
           until the final review board handled the matter. Though
           the State Correctional Institution in Huntingdon may lack
           Rastafarian religious services, Rastafarian Faith group
           leaders, and Rastafarian-based faith gatherings, the
           process of obtaining a hair groom exemption, filing an
           official grievance, and appealing decisions is
           administered equally and fairly to all prisoners,
           regardless of their religious beliefs.

           The Pennsylvania Department of Corrections is best
           suited to enact policies to ensure that inmates are treated
           fairly. They have performed their duty in this case, and

                                        6
              to permit Plaintiff to engage in frivolous litigation in
              these circumstances would open up our courts to every
              inmate who questions the policies of the Department.
              Incarceration does not remove the protected rights of an
              individual, it does however mean, ‘that lawful
              imprisonment properly results in a retraction [of rights]
              justified by the considerations underlying our penal
              system.’ Prive v. Johnston, 334 U.S. 266, 285 (1948);
              Pell v. Procunier, 417 U.S. 817, 822 (1974).

              Plaintiff’s Complaint is frivolous and lacks any claim
              upon which relief can be granted.                 Although
              Pennsylvania law provides an exception for prisoners
              who make an allegation of imminent danger, such
              circumstances do not exist in this case. The PRLA
              demands that Courts dismiss non-meritorious
              Complaints.     Therefore, this Court has rightfully
              dismissed Plaintiff’s filing pursuant to the language of 42
              Pa.C.S. § 6602(e) and Pa.R.C.P. No. 240(j).

Common Pleas Court Decision, October 27, 2014, at 3. (Emphasis added.)


              On appeal, Pate contends4 that the common pleas court erred when it
dismissed his complaint for two reasons. First, Pate argues that he was incorrectly
denied a Rastafarian hair grooming exemption.5 Pate also contends that his equal


       4
          This Court’s review is limited to a determination of whether constitutional rights were
violated, or whether the common pleas court abused its discretion or committed an error of law.
Pew v. Mechling, 929 A.2d 1214, 1217 n.4 (Pa. Cmwlth. 2007).
        5
          The Department Policy DC-ADM 807, issued December 15, 2003, establishes inmate
grooming standards and provides, in pertinent part, as follows:

              A. Hairstyles
              1. General
              Hairstyles of different types will be permitted provided they do not
              conflict with the facility’s procedures for safety, security,
              identification, and sanitation efforts.

              2. Male Hairstyles


                                               7
protection rights are being violated because he does not have a reasonable
opportunity to pursue his faith as comparable to other inmates and religions at SCI-
Huntingdon.


              a. Hair that does not fall below the top of the collar in length (Afro
              styles no longer than four inches) shall be permitted.
                                             * * *
              d. An inmate request for a hairstyle exemption based in religion
              shall be in accordance with the Department policy DC- ADM 819,
              ‘Religious Activities.’

Policy DC-ADM 807.

               The Department Policy, DC-ADM 819, Religious Activities, issued June 10,
2002, establishes the procedure and standards for a religious accommodation:

              A. General
              1. Within security and budgetary limitations and in light of
              available resources, the Department will seek to accommodate the
              sincerely held religious beliefs of every inmate using the least
              restrictive means necessary provided they do not interfere with
              security priorities and with the normal operation of each facility.

              2. An inmate seeking an accommodation for a sincerely held
              religious belief may submit the appropriate request form, noted
              below, to his/her Facility Chaplaincy Program Director (FCPD) for
              consideration.

              B. Grooming Exemption Requests
              ….
              2. Actively Serving Inmates

              a. A male inmate whose status is ‘Actively Serving’ and who
              wishes an exemption to Department policy DC-ADM 807 must
              submit a Grooming Exemption Request Form (Attachment 4-A)
              within 15 working days of receiving the order to cut his hair/beard.
              If a Grooming Exemption Request Form is not submitted within 15
              working days of the initial order for an inmate to cut his hair/beard,
              the inmate shall be subject to discipline in accordance with
              Department policy DC-ADM 801.

Policy DC-ADM 819. (Emphasis added.)



                                                8
             Appellees and the Department of Corrections argue that the common
pleas court did not err when it sua sponte dismissed Pate’s complaint as frivolous.
Specifically, Appellees and the Department of Corrections argue that Pennsylvania
case law has established that a policy limiting hair length does not violate an
inmate’s constitutional rights to freedom of religion.


             In Meggett v. Pennsylvania Department of Corrections, 892 A.2d 872
(Pa. Cmwlth. 2006), this Court determined that a prison policy limiting “Afro”
hairstyles to four inches in length was reasonably related to the prison’s interest in
eliminating the use of long hair to conceal and move contraband, in aiding prison
staff in identification of an inmate, and in advancing inmate hygiene. This Court
held that the Department of Corrections’ interests outweighed the rights an inmate
had to wear his hair in long dreadlocks under the First Amendment’s
Establishment and Free Speech Clauses.


             An action is frivolous under Pa. R.C.P. No. 240(j)(1) “if, on its face, it
does not set forth a valid cause of action.” Bennett v. Beard, 919 A.2d 365, 367
(Pa. Cmwlth. 2007) (quoting McGriff v. Vidovich, 699 A.2d 797, 799 (Pa. Cmwlth.
1997), appeal denied, 553 Pa. 693, 717 A.2d 1030 (1998)). “A frivolous action or
proceeding has been defined as one that ‘lacks an arguable basis either in law or in
fact.’” Conover v. Mikosky, 609 A.2d 558 (Pa. Super. 1992). Although Pate’s
claims that he was unfairly denied a Rastafarian hair exemption and equal
protection to pursue his religion convictions may eventually be found frivolous,
this record is insufficient to make that determination.




                                          9
            In the present case, Pate alleged that he “has no previous lawsuits”
alleging a constitutional violation.   Without any responsive pleading filed by
Appellees, this Court is unable to render meaningful appellate review as to whether
Pate’s constitutional claims are frivolous.    Appellees and the Department of
Corrections were never given an opportunity to adequately respond.


            Accordingly, the common pleas court’s sua sponte dismissal of Pate’s
complaint is vacated and this matter is remanded for proceedings consistent with
this opinion. Appellees and the Department of Corrections are ordered to file their
responsive pleading to the complaint within twenty days.



                                       ____________________________
                                       BERNARD L. McGINLEY, Judge




                                        10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lavince Pate,                            :
                  Appellant              :
                                         :
            v.                           :
                                         :
Rev. Darrell Wireman, Connie             :
Green, Tabb Bickell, Dorina Varner,      :   No. 932 C.D. 2015
Thomas McFee, et al.                     :


                                   ORDER

            AND NOW, this 30th day of September, 2015, the Order of the Court
of Common Pleas of Huntingdon County in the above-captioned matter is vacated
and this matter is remanded for proceedings consistent with this opinion.
Appellees and the Department of Corrections are ordered to file their responsive
pleading to the complaint within twenty days.


            Jurisdiction relinquished.


                                         ____________________________
                                         BERNARD L. McGINLEY, Judge
