              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carvell Rice,                                    :
                         Appellant               :
                                                 :
                  v.                             :   No. 1676 C.D. 2016
                                                 :   Submitted: March 24, 2017
S. Downs, Captain G. Gregavis,                   :
Hearing Examiner S. Luquis,                      :
J. Newberry, J. Weissinger,                      :
S. Anyanwu and Superintendent                    :
B. Tritt                                         :

BEFORE:           HONORABLE MARY HANNAH LEAVITT, President Judge
                  HONORABLE PATRICIA A. McCULLOUGH, Judge
                  HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                                   FILED: July 12, 2017

                  Carvell Rice, pro se, appeals an order of the Schuylkill County Court
of Common Pleas (trial court) that dismissed his civil rights complaint filed against
several employees of the Pennsylvania Department of Corrections, who worked at
SCI-Frackville (collectively, Department Employees). On appeal, Rice contends
that the trial court erred in sustaining the demurrer of Department Employees
because his complaint does state a retaliation claim under federal case law
precedent. For the reasons that follow, we affirm.
                  On May 12, 2016, Rice filed a complaint under Section 1983 of Title
42 of the United States Code, 42 U.S.C. §1983,1 alleging that Department

1
    Section 1983 states, in relevant part, as follows:
          Every person who, under color of any statute, ordinance, regulation, custom, or
          usage, of any State ... subjects, or causes to be subjected, any citizen of the United
          States or other person within the jurisdiction thereof to the deprivation of any
(Footnote continued on the next page . . .)
Employees retaliated against him for filing a grievance. Their acts of retaliation
included confiscating his mail and issuing him a misconduct.
              Rice’s initial grievance was based upon a June 20, 2014, incident.
After cleaning a cell block, Rice heard a corrections officer state, “[i]f I wanted to
see that … I’d go home and watch ‘Twelve Years A Slave.’” Complaint, ¶12.
After filing this grievance on July 15, 2014, Rice was questioned about a letter he
had written to a former inmate. In this interview, Security Captain Downs stated
that “[y]ou cannot write or receive mail from … a former inmate … it’s a violation
of DC-ADM 803.” Id. at ¶15. Security Captain Downs confiscated the letter.
              The complaint also alleged that on July 18, 2014, Rice wrote a letter
to his sister, which was opened and confiscated by Security Captain Downs.
Complaint, ¶16. After Rice was issued a misconduct, he filed a grievance to
challenge the opening and seizure of his outgoing correspondence, asserting that
this conduct violated his First and Fourth Amendment rights, as well as
Department policy. Id. at ¶21.
              Finally, the complaint alleged that on May 5, 2015, he sent a Mother’s
Day card to his sister addressed to “6751 Linmore Ave[nue].” Complaint, ¶17.
The card was returned. Rice noted that the house number on the envelope had
been changed from “6751 Linmore Avenue” to “6757 Linmore Ave[nue].” Id.
Believing that Security Captain Downs had changed the address on the envelope,




(continued . . .)
       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.


                                              2
Rice filed another grievance alleging that his outgoing mail had been tampered
with. Id. at ¶22.
               The complaint asserted that Department Employees’ actions violated
his rights under the First, Fourth, and Fourteenth Amendments to the United States
Constitution. Complaint, ¶36. Rice sought declaratory and injunctive relief as
well as compensatory and punitive damages.
               Department Employees filed preliminary objections to the complaint.
They asserted that the complaint lacked specificity. They demurred to Rice’s
complaint for the stated reason that it constituted an improper appeal of his
grievance and, in any case, stated neither a constitutional nor a retaliation claim.
               In response, Rice filed a brief with the trial court stating that he did
“not contest sustaining [preliminary] objections” to his constitutional claims under
the First, Fourth and Fourteenth Amendments. C.R., Item No. 12, at 5-6. On
retaliation, Rice’s brief asserted that his complaint stated a claim under the
principles established in Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001). Finally, his
brief rebutted the Department Employees’ arguments on jurisdiction and
specificity.
               The trial court sustained Department Employees’ preliminary
objections and dismissed Rice’s complaint. In its opinion, the trial court noted that
Rice “concede[d] all preliminary objections in his response” except for retaliation
and the specificity of the complaint. Trial Court Opinion, 9/19/2016, at 3. On
retaliation, the trial court quoted Yount v. Department of Corrections, 966 A.2d
1115 (Pa. 2009), for the proposition that a retaliation claim requires that the
“‘inmate engaged in constitutionally protected conduct, prison officials took
adverse action, and the protected conduct was a substantial or motivating factor for


                                           3
the action.’” Trial Court Opinion, 9/19/2016, at 5. This means that an inmate must
“establish by preponderance of the evidence he was retaliated against for
exercising his constitutional rights and that the retaliatory action does not advance
legitimate penological goals.” Id. The trial court found that the complaint pled
facts sufficient to meet the first, second, and third prongs of the test set forth in
Yount but not the fourth prong. Rice’s complaint did not plead that the adverse
actions of Department Employees failed to advance a legitimate penological
purpose. The trial court explained:

              [Rice] has not alleged that the prison officials did not have a
              legitimate penological interest in monitoring and confiscating
              his mail. He further admitted to corresponding with a former
              inmate, which is prohibited by prison regulations. [Rice] has
              not set forth any factual basis under which he can show that the
              monitoring of outgoing mail did not support a legitimate
              penological purpose.

Trial Court Opinion, 9/19/2016, at 8.2 Rice then appealed to this Court.
              On appeal, Rice raises two issues. First, he contends that the trial
court erred because his complaint did state a claim for retaliation. Second, he
contends that the trial court erred in holding that it was necessary for the complaint
to allege that the conduct of the Department Employees did not further a legitimate
penological goal. He contends that the conduct described in the complaint could
not possibly advance a legitimate penological goal.              Department Employees




2
  Because it sustained the demurrer to Rice’s complaint, the trial court did not address the
remaining preliminary objections of Department Employees.


                                             4
respond that the complaint did not satisfy the fourth prong of Yount, 966 A.2d
1115.3
               Where a complaint asserts that the inmate has suffered retaliation for
exercising his constitutional rights, the complaint must allege that: (1) the inmate
engaged in constitutionally protected conduct; (2) the retaliation against that
conduct resulted in adverse action; (3) the protected conduct was a substantial or
motivating factor for the retaliation; and (4) the retaliation did not further a
legitimate penological interest. Yount, 966 A.2d at 1120-21. In this appeal, we
consider only the fourth prong because the trial court held that Rice’s complaint
satisfied the first three prongs; Department Employees do not challenge this
conclusion of the trial court.
               Our Supreme Court has explained that an inmate must prove the
absence of a legitimate penological interest because of the “‘potential for abuse’ in
retaliation claims [and] prison officials ‘legitimate interest in the effective
management of a detention facility.’” Yount, 966 A.2d at 1120 (quoting Abdul-
Akbar v. Department of Corrections, 910 F. Supp. 986, 1000–01 (D. Del. 1995));
see also Richardson, 74 A.3d at 357.                Rice’s complaint does not contain an
allegation that Department Employees’ actions did not further a legitimate
penological goal. To the contrary, the complaint admits that when Rice attempted
to send correspondence to a former inmate, he was informed that his
correspondence violated the Department’s policy. Indeed, Rice’s trial court brief


3
  In a demurrer, the question is whether on the facts alleged, no recovery is possible. Richardson
v. Wetzel, 74 A.3d 353, 356 (Pa. Cmwlth. 2013) (quoting Stilp v. General Assembly, 974 A.2d
491, 494 (Pa. 2009)). Accordingly, our standard of review is de novo, and our scope of review is
plenary. Young v. Estate of Young, 138 A.3d 78, 84 (Pa. Cmwlth. 2016); Richardson, 74 A.3d at
356.


                                                5
acknowledged that “prison administrators may circumscribe the parameters of
inmate mail communications.”        C.R., Item No. 12, at 5.       Nevertheless, Rice
contends that the trial court’s reliance on Yount was misplaced because his
retaliation claim was brought under federal law. Therefore, the trial court should
have applied the three-prong test set forth in Rauser, 241 F.3d 330 (3d Cir. 2001).
             In Rauser, an inmate sued prison officials for retaliation after he
attempted to exercise his First Amendment right to practice his religion. The Third
Circuit set forth the rules for stating a retaliation claim. First, “a prisoner … in a
retaliation case must prove that the conduct which led to the alleged retaliation was
constitutionally protected.” Id. at 333. Second, “a prisoner litigating a retaliation
claim must show that he suffered some ‘adverse action’ at the hands of the prison
officials.” Id. Finally, the prisoner must prove “a causal link between the exercise
of his constitutional rights and the adverse action taken against him.” Id. Rice
argues that because Rauser does not require proof that the retaliation did not
further a legitimate penological interest, his complaint stated a claim for retaliation.
             Pennsylvania courts are “not bound to follow the decisions of the
Third Circuit on issues of federal law.” Jones v. Doe, 126 A.3d 406, 409 (Pa.
Cmwlth. 2015) (citing Brown v. Department of Corrections, 932 A.2d 316, 319
(Pa. Cmwlth. 2007)). By contrast, they must follow decisions of the Pennsylvania
Supreme Court. Lovrinoff v. Pennsylvania Turnpike Commission, 281 A.2d 176,
177 (Pa. Cmwlth. 1971). In sum, Yount, not Rauser, is the law in Pennsylvania,
and the trial court did not err in applying the four-prong test set forth therein. In
the alternative, Rice asks this Court to reverse Yount. However, we “are powerless
to rule that decisions of [the Supreme Court] are wrongly decided and should be




                                           6
overturned.” Griffin v. Southeastern Pennsylvania Turnpike Authority, 757 A.2d
448, 451 (Pa. Cmwlth. 2000).
              Next, Rice contends that because Department Employees’ actions
against him could not possibly advance any legitimate penological goal, his
complaint is adequate. Our Supreme Court has explained that

              inmates do not enjoy the same level of constitutional
              protections    afforded    to    non-incarcerated       citizens….
              “[I]ncarceration brings about the necessary withdrawal or
              limitation of many privileges and rights, a retraction justified by
              the considerations underlying our penal system.”

Bronson v. Central Office Review Committee, 721 A.2d 357, 359 (Pa. 1998)
(citations omitted). This Court has specifically recognized that inmates “do not
have the right to correspond with another inmate, either directly or through a third
party.” Rice v. Department of Corrections, (Pa. Cmwlth., No. 169 M.D. 2015,
filed January 5, 2016) (unreported), slip op. at 5.4 In part, this is due to the
Department having “legitimate penological interests in providing for the safety and
security of their employees and in the administration and management of inmate
mail.” Bussinger v. Department of Corrections, 29 A.3d 79, 88 (Pa. Cmwlth.
2011), affirmed, 65 A.3d 289 (Pa. 2013). We cannot say, and Rice does not assert,
that the confiscation of an inmate’s mail for violation of the Department’s policy, 5



4
  Pursuant to Commonwealth Court Internal Operating Procedure §414(a), 210 Pa. Code
§69.414(a), an unreported opinion of this Court may be cited for its persuasive value and not as
binding precedent.
5
  The Department of Corrections has a policy, DC-ADM 803, regarding inmate mail and
incoming publications. Regarding communications with former inmates, it states, in relevant
part:
       3. An inmate may not:
(Footnote continued on the next page . . .)
                                               7
and subsequent issuance of a misconduct, did not further a legitimate penological
interest.
              Finally, in the alternative, Rice requests approval to file an amended
complaint to cure any defects in his original complaint.              Rice Brief at 11.
Pennsylvania Rule of Civil Procedure No. 1028(c)(1) states that “[a] party may file
an amended pleading as of course within twenty days after service of a copy of
preliminary objections.” Pa. R.C.P. No. 1028(c)(1). Rice did not do so. Once the
20-day period in Rule 1028(c)(1) passes, “[a] party, either by filed consent of the
adverse party or by leave of [trial] court, may at any time … amend the pleading.”
Pa. R.C.P. No. 1033(a). Rice does not contend that he sought consent from
Department Employees or leave of court to amend his complaint. Only in his brief
filed with this Court does Rice request approval to file an amended complaint.
However, Rice’s request was made outside the time period set forth in Rules
1028(c)(1) and 1033(a) and should, in any case, have been presented to the trial
court. Accordingly, we will not consider Rice’s untimely request.
              For the above-stated reasons, we affirm the order of the trial court.

                                      ______________________________________
                                      MARY HANNAH LEAVITT, President Judge




(continued . . .)
               a. correspond with another inmate, former inmate, parolee,
               probationer, or co-defendant unless approval is given pursuant to
               this policy[.]
Department of Corrections, Inmate Mail and Incoming Publications Procedures Manual, Section
1, subsection A(3) (effective October 29, 2015), available at
http://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/803%20Inmate%20Mail%20
and%20Incoming%20Publications.pdf (last visited June 2, 2017).


                                            8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carvell Rice,                      :
                 Appellant         :
                                   :
            v.                     :   No. 1676 C.D. 2016
                                   :
S. Downs, Captain G. Gregavis,     :
Hearing Examiner S. Luquis,        :
J. Newberry, J. Weissinger,        :
S. Anyanwu and Superintendent      :
B. Tritt                           :


                                 ORDER

            AND NOW, this 12th day of July, 2017, the order of the Schuylkill
County Court of Common Pleas dated September 19, 2016, in the above-captioned
matter is AFFIRMED.

                                 ______________________________________
                                 MARY HANNAH LEAVITT, President Judge
