                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dwayne Jones,                                    :
                        Appellant                :
                                                 :    No. 809 C.D. 2015
               v.                                :
                                                 :    Submitted: July 10, 2015
Jane Doe, Mail Inspector No. 5;                  :
Tracey Brokenshire; John Kerestes;               :
Dorina Varner; John Wetzel                       :


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


OPINION BY
JUDGE McCULLOUGH                                                     FILED: October 28, 2015


               Dwayne Jones appeals pro se from the November 19, 2014 order of the
Court of Common Pleas of Schuylkill 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.
               Jones is incarcerated at the State Correctional Institution at Mahanoy
(SCI-Mahanoy). On November 2, 2014, Jones filed a complaint against Jane Doe
Mail Inspector No. 5; Tracey Brokenshire, Department of Corrections Mail Inspector
Supervisor;      John     Kerestes,     SCI-Mahanoy         Superintendent;        Dorina     Varner,
Department of Corrections Chief Grievance Officer; and John Wetzel, Secretary of


       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).
the Department of Corrections (DOC), alleging in relevant part as follows. On July
1, 2014, Jones received legal mail that was opened outside his presence by Mail
Inspector No. 5, in violation of his First Amendment right to engage in protected
communication and in violation of DOC policy DC-ADM 803, which authorizes the
inspection of all mail for contraband but requires that legal mail be opened in the
inmate’s presence.2 Jones filed a grievance, complaining that he had previously
received legal mail from the same office that had been properly handled, asserting
that the action violated his First Amendment rights as well as DOC policy, and
requesting punitive damages. (Complaint, ¶¶13-16.) On initial review, defendant
Brokenshire denied the grievance, and that decision was upheld by defendant
Kerestes. On further appeal to the Chief Secretary’s Office of Inmate Grievances,
defendant Varner concluded that mailroom staff should not have opened the mail in
question but found that punitive damages were not warranted. (Complaint, ¶¶17-21.)
Jones further alleged in the complaint that legal mail of other inmates has been
opened at SCI-Mahanoy outside their presence on numerous occasions and that
numerous complaints and grievances have been filed as a result. (Complaint, ¶¶30-
31.) Jones sought, inter alia, damages in an amount in excess of $35,000 from each
of the named defendants.
              Jones also filed a petition for leave to proceed IFP. Upon consideration
of the IFP petition, the trial court concluded that the complaint lacked any basis in

       2
         In Brown v. Pennsylvania Department of Corrections, 932 A.2d 316 (Pa. Cmwlth. 2007),
this Court held that DC-ADM 803 did not impermissibly infringe on an inmate’s First Amendment
rights because it provides a means for an inmate to exercise his or her right to privileged legal
communication. We also noted that mail purporting to be legal mail is not automatically privileged;
to be considered privileged, DOC requires counsel to use a control number issued by the
department.




                                                2
law or in fact and thus was a frivolous action. The trial court noted that DOC’s
regulation, DC-ADM 803, requires the inmate’s presence for the inspection of legal
mail, so long as the envelope is marked with a control number obtained from the
DOC Office of Chief Counsel. However, the trial court found that the allegations in
Jones’s complaint demonstrated at most that Jones’s mail was improperly opened on
one occasion. Citing Hale v. Pennsylvania Department of Corrections, No. 3:07-CV-
0345 (M.D. Pa., filed September 16, 2010), 2010 WL 3791833, the trial court
concluded that the mistaken opening of legal mail on one occasion does not support a
claim for a violation of the First Amendment. The trial court also concluded that
Jones lacked standing to state a claim based on alleged violations of other prisoners’
rights. Further, the trial court concluded that, even if the opening of other inmates’
legal mail outside their presence could demonstrate a pattern or practice of such
conduct at the prison, Jones failed to plead any material facts to support his
allegations. Having determined that the allegations in the complaint demonstrate
only that Jones’s mail was improperly opened on one occasion, the trial court
concluded that the underlying action was frivolous. Accordingly, the trial court
denied the IFP petition and dismissed Jones’s complaint.
              On appeal to this Court,3 Jones argues that the trial court erred in
dismissing his complaint as frivolous under Rule 240(j). Jones maintains that he has
alleged a viable claim against prison officials for violating his First Amendment right
to privileged communication by opening his legal mail outside his presence.
              In relevant part, Rule 240(j)(1) states:

       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
             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.
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
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).
             Pennsylvania state prisoners have a First Amendment right not to have
properly marked legal mail opened outside of their presence. Jones v. Brown, 461
F.3d 353, 355 (3d Cir. 2006), cert. denied, 549 U.S. 1286 (2007); Bieregu v. Reno, 59
F.3d 1445, 1458 (3d Cir. 1995), overruled on other grounds, Lewis v. Casey, 518
U.S. 343 (1996); Brown v Pennsylvania Department of Corrections, 932 A.2d 316,
319 (Pa. Cmwlth. 2007). In Jones, the court explained that a “pattern and practice of
opening properly marked incoming legal mail outside of an inmate's presence
infringes communications protected by the right to free speech . . . because it chills
protected expression and may inhibit the inmate's ability to speak, protest, and
complain openly, directly, and without reservation with the court.” Jones, 461 F.3d
at 358-59; see also Bieregu, 59 F.3d at 1452.
             In Bieregu, the court concluded that a pattern and practice of opening an
inmate’s properly marked incoming court mail outside his presence impinges upon
his constitutional rights to free speech and court access. Additionally, the court held
that where a prisoner's legal mail is opened repeatedly outside an inmate’s presence,
there is no “actual injury” requirement to assert a claim. Id. at 1455. However, the
court was “careful to distinguish between a single, inadvertent opening of properly

                                           4
marked legal mail outside an inmate's presence and a pattern or practice of such
actions. The former may not infringe a prisoner's right to free speech, nor his right to
court access absent a showing of actual injury.[4] The latter, however, both infringes
those rights and fails [Turner v. Safley, 482 U.S. 78 (1987)].”5 Bieregu, 59 F.3d at
1455-56.
               Although we are not bound to follow the decisions of the Third Circuit
on issues of federal law, Brown, 932 A.2d at 319, we similarly find them persuasive
and conclude that a single, inadvertent opening of properly marked legal mail outside
an inmate's presence may not infringe a prisoner's right to free speech or his right to
court access absent a showing of actual injury.                    Bieregu, 59 F.3d at 1458.
Importantly, Jones does not argue to the contrary. Instead, Jones notes that, in
paragraphs 30 and 31 of his complaint, he asserts that, “[u]pon information and
belief, there [have] been numerous occasions where legal mail has been opened at
SCI-Mahanoy outside the presence of the recipient” and that, “[u]pon information
and belief there [have] been numerous complaints and grievances filed as a result . . .
.” (Complaint, ¶¶ 30, 31.) Jones argues that, taken together, these averments are


       4
          The court in Bieregu declined to specify a minimum number of instances in which
properly marked legal mail is opened outside a prisoner's presence that would be sufficient to
eliminate the requirement of showing actual injury, explaining that a determination of whether a
prisoner has demonstrated a custom or practice is a factual inquiry. Id. at 1455-56.

       5
         In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court held that a prison regulation
which impinges on an inmate’s constitutional rights is valid if it is reasonably related to legitimate
penological interests. Id. at 89. In determining the reasonableness of a regulation, a court considers
the following factors: 1) whether the regulation has a valid, rational connection with the legitimate
government interest asserted; 2) whether an alternative means of exercising those rights is available;
3) the impact that accommodation of the rights will have on guards, other inmates, and prison
resources; and 4) whether there exists an alternative that fully accommodates inmates’ rights at a de
minimis cost to valid penological interests. Id. at 89-91; Brown, 932 A.2d at 319.



                                                  5
sufficient to state a claim for a pattern or practice of opening legal mail outside
Jones’s presence. We disagree.
             As the trial court correctly noted, Jones does not have standing to assert
constitutional rights belonging to other inmates. Commonwealth v. Omar, 981 A.2d
179, 190 n.1 (Pa. 2009) (generally speaking, constitutional rights cannot be asserted
vicariously); see also Commonwealth v. Hawkins, 718 A.2d 265 (Pa. 1998)
(maintaining a bar on derivative standing, a doctrine that would have allowed a
defendant to vicariously assert the constitutional privacy interests belonging to
another in a suppression motion). Moreover, we also agree with the trial court that
the general allegations set forth in paragraphs 30 and 31 of Jones’s complaint, which
relate solely to the handling of other prisoners’ mail, are insufficient to demonstrate a
pattern or practice related to the improper opening of Jones’s mail. Because, on its
face, Jones’s complaint does not set forth a valid cause of action, the trial court
properly dismissed it as frivolous under Pa.R.C.P. No. 240(j)(1). Keller, 609 A.2d at
568.
             Accordingly, we affirm.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                           6
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dwayne Jones,                          :
                  Appellant            :
                                       :    No. 809 C.D. 2015
            v.                         :
                                       :
Jane Doe, Mail Inspector No. 5;        :
Tracey Brokenshire; John Kerestes;     :
Dorina Varner; John Wetzel             :


                                     ORDER


            AND NOW, this 28th day of October, 2015, the order of the Court of
Common Pleas of Schuylkill County, dated November 19, 2014, is affirmed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
