           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Rodney Derrickson,                        :
                          Petitioner      :
                                          :
                   v.                     :   No. 467 M.D. 2017
                                          :   Submitted: January 26, 2018
Cindy Hays, John Wetzel,                  :
                       Respondents        :



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                          FILED: April 3, 2018


      Presently before the Court are preliminary objections filed by Cindy Hays
(Hays), activities manager at the State Correctional Institution at Forest (SCI-
Forest), and John Wetzel, Secretary of Corrections (Secretary Wetzel), (collectively,
Respondents), to a petition for review (Petition) filed in this Court’s original
jurisdiction by Rodney Derrickson (Derrickson), an inmate at SCI-Forest. In his pro
se Petition, Derrickson seeks declaratory and injunctive relief against Respondents
for alleged violations of his First Amendment rights. We overrule, in part, and
sustain, in part, Respondents’ preliminary objections.
      Because this matter is before us on preliminary objections, we must “accept
as true all well-pleaded material allegations in the petition for review,” as well as
any reasonable inferences deducible therefrom. Thomas v. Corbett, 90 A.3d 789,
794 (Pa. Cmwlth. 2014). With this standard in mind, we begin with a brief recitation
of the facts as pled by Derrickson.
      Derrickson is vice-president of an organization called Hope for Change. On
August 1, 2017, Hays, who serves as staff coordinator for Hope for Change,
informed the organization’s executive board that another organization called Fight
for Lifers contacted SCI-Forest’s superintendent, who agreed to meet with the
outside organization. On the same date, Derrickson informed “Hays that he had
personally received corresponden[ce] from [Fight for Lifers] expressing an interest
in working with the Hope for Change organization and asked [Fight for Lifers] to
contact the superintendent directly asking to work with the inmate organization.”
(Petition for Review ¶ 6.) According to Derrickson, Hays responded, “[Y]ou can’t
write to any outside organization concerning [Hope for Change] without approval
from me.”     (Id. ¶ 7.)   Hays allegedly informed the executive board that the
superintendent “wanted something done about it,” in response to which the executive
board voted to suspend Derrickson for five months. (Id. ¶ 9.)
      Derrickson maintains his First Amendment rights to free “speech[] and to
freely associate with outside prisoner advocacy . . . groups” were infringed upon as
a result. (Id. ¶ 8.) He also alleges that any activity in his capacity as vice-president
of Hope for Change is protected as “expressive association.” (Id. ¶ 17.) Finally, he
claims he cannot be retaliated against for his communications with Fight for Lifers.
      He requests a declaration recognizing his First Amendment “right to
communicate with outside prison reform organizations/groups.” (Id., Wherefore
Clause ¶ 1.) In addition, he seeks an order declaring “any policy and/or rule
prohibiting [him] from sending outgoing mail to any prison reform organizations
and/or groups” unconstitutional. (Id. ¶ 2.) He also seeks to enjoin Respondents from



                                           2
“interfering with [his] First Amendment right to freely communicate with [such]
outside organizations,” “interfering with his expressive association rights . . . as vice-
president of [Hope for Change],”                    and   “[r]etaliating, harassing and/or
administratively sanctioning him for engaging in” such activity. (Id. ¶ 3.)
       Respondents filed timely preliminary objections to Derrickson’s Petition.
First, Hays alleges that she was not properly served with the Petition. Second, Hays
alleges she does not have statewide responsibility with respect to the Department of
Corrections (Department) and is, therefore, not a statewide officer over whom this
Court has original jurisdiction. Third, Respondents seek a demurrer on a number of
grounds, including, inter alia, that Derrickson has no protected liberty interest in
forming or maintaining an inmate organization or in being an officer in such
organization, that the Department has legitimate penological reasons for regulating
an inmate’s contact with outside organizations, and that Derrickson is not entitled to
declaratory or injunctive relief.1
       We initially address the two preliminary objections related solely to Hays. In
his response to the preliminary objections and brief to this Court, Derrickson
concedes that Hays is not a statewide officer and should be dismissed from this
matter. (Derrickson’s Response to the Preliminary Objections ¶ 8; Derrickson’s Br.
at 18.) Accordingly, we sustain the second preliminary objection and dismiss Hays
from the action. As a result of this ruling, the preliminary objection related to
improper service on Hays is moot. This leaves only the demurrer remaining for the
Court’s consideration.


       1
          Although Respondents list other bases for their demurrer, Respondents limit their
arguments in their brief to just those bases identified above. Because Respondents did not develop
their arguments on the other bases in their brief, those objections are waived. In re Tax Claim
Bureau of Lehigh Cty. 2012 Judicial Tax Sale, 107 A.3d 853, 857 n.5 (Pa. Cmwlth. 2015).


                                                3
      As stated above, when ruling upon preliminary objections, we must accept as
true all well-pleaded allegations of material fact, as well as all reasonable inferences
deducible therefrom. Thomas, 90 A.3d at 794. The Court “is not bound by legal
conclusions, unwarranted inferences from facts, argumentative allegations, or
expressions of opinion.” Id. The Court “may sustain preliminary objections only
when the law makes clear that the petitioner cannot succeed on his claim, and we
must resolve any doubt in favor of the petitioner.” Id. “A demurrer . . . should be
sustained only in cases that are free and clear from doubt and only where it appears
with certainty that the law permits no recovery under the allegations pleaded.”
Russell v. Donnelly, 827 A.2d 535, 536 (Pa. Cmwlth. 2003) (quoting Sweatt v. Dep’t
of Corr., 769 A.2d 574, 577 (Pa. Cmwlth. 2001)).
      Respondents argue that Derrickson’s Petition should be dismissed since there
is no constitutional right to be an officer of an inmate organization or to form or
maintain one. Further, because there is no constitutional right at stake, Respondents
argue, this Court lacks jurisdiction.          Respondents, however, misapprehend
Derrickson’s Petition. Derrickson does not allege that the constitutional right at
issue is his right to hold office as vice-president of Hope for Change. Nor does he
seek to form or maintain an inmate organization because Hope for Change is already
an approved inmate organization.         Rather, Derrickson alleges that there are
constitutional rights at issue – his First Amendment rights to free speech and to
associate with outside organizations through the mail.
      “[T]he First Amendment to the United States Constitution has long been
interpreted by the courts as including a general right to communicate by mail.”
Bussinger v. Dep’t of Corr., 29 A.3d 79, 84 (Pa. Cmwlth. 2011). While “[n]aturally,
an inmate relinquishes some First Amendment rights that he would enjoy if not



                                           4
incarcerated,” Abu-Jamal v. Price, 154 F.3d 128, 135 (3d Cir. 1998), our Courts
have recognized that inmates “do not forfeit their First Amendment rights to use of
the mails.” Brown v. Dep’t of Corr., 932 A.2d 316, 319 (Pa. Cmwlth. 2007)
(quotation omitted). This includes the right to correspond with outsiders even about
matters unflattering to the Department. Brooks v. Andolina, 826 F.2d 1266, 1268
(3d Cir. 1987); Castle v. Clymer, 15 F. Supp. 2d 640, 661 (E.D. Pa. 1998). Because
the First Amendment claim is clearly a constitutional issue, it is properly before this
Court.
         An inmate’s First Amendment rights are not limitless, though. Restrictions
may be placed on an inmate’s First Amendment rights so long as those limits are
reasonably related to a legitimate penological goal. Brown, 932 A.2d at 319. Here,
Respondents assert that the Department has a legitimate penological interest in
regulating inmate contact with outside organizations. Respondents do not identify
what that legitimate penological interest is; rather they assert in conclusory fashion
that, as a matter of fact, one exists. Regardless, even if Respondents had identified
a legitimate penological interest,2 we cannot accept that assertion as fact for purposes
of preliminary objections. We were confronted with a similar situation in Thomas.
There, the Department alleged in its preliminary objections that it had a legitimate
penological interest in denying inmates “conjugal visits, namely, the security of the
prison and the safety of inmates and staff.” Thomas, 90 A.3d at 795. We explained


         2
         In the section of their brief related to whether Derrickson is entitled to declaratory or
injunctive relief, Respondents allege that “[i]t is reasonable to require that [Derrickson] get prior
approval before making any representations on behalf of the inmate group, so that personal
positions are not mixed up with group positions.” (Respondents’ Br. at 12.) This is the closest
statement of a legitimate penological interest found in Respondents’ filings. We need not decide
whether this is a legitimate penological interest, though, because, for purposes of preliminary
objections, we cannot consider matters outside of the Petition.


                                                 5
that, for purposes of a demurrer, we could not accept the Department’s stated reasons
for the policy as fact because:

       [w]hile all of those concerns set forth in [the Department’s] preliminary
       objections are valid penological interests that could justify their
       position, those reasons cannot be advanced because when considering
       a demurrer, a court cannot consider matters collateral to the complaint,
       but must limit itself to such matters as appear therein, and an effort to
       supply facts missing from the objectionable pleading makes the
       preliminary objection in the nature of a demurrer an impermissible
       “speaking demurrer.”

Id. (quoting Mobley v. Coleman, 65 A.3d 1048, 1053 (Pa. Cmwlth. 2013)). The
Court explained that if it were to do so, essentially, it would be “accept[ing] on faith
the veracity of these assertions.” Id. at 796.
       Like the Court in Thomas, we, too, cannot accept Respondents’ factual
averment that the Department has a legitimate penological reason, whatever it may
be, for its actions. We are constrained to find that, at this early procedural posture,
Derrickson’s claim must be allowed to proceed.3
       Respondents assert another basis for their demurrer.                  They argue that
Derrickson is not entitled to declaratory or injunctive relief.                With regard to
declaratory relief, they argue Derrickson is not entitled to a declaration that his
suspension from Hope for Change violated his First Amendment rights. Derrickson,
however, is not seeking such a declaration. He is seeking a declaration that
recognizes his First Amendment right to communicate with outside prison reform
groups and an order declaring any policy or rule prohibiting him from sending

       3
         Respondents argue that the courts should give substantial deference to the professional
judgment of prison administrators. While true, as we stated in Thomas, Respondents “must still
offer something in addition to simple argument.” 90 A.3d at 796. It very well may be that
Respondents can proffer a legitimate penological interest for its actions, but, at this procedural
posture, Respondents are not entitled to blanket deference.


                                                6
outgoing mail to a prison reform group as unconstitutional. These are proper
subjects of a declaratory relief action.
      With regard to injunctive relief, the Respondents again argue Derrickson is
not entitled to be an officer of an inmate group and that he failed to show irreparable
harm. As we have stated throughout, Respondents’ focus is misplaced. It bears
emphasis that Derrickson’s challenge is not simply related to his position as vice
president of Hope for Change, but more generally to the infringement of his First
Amendment rights and retaliation for exercising those rights. The United States
Supreme Court has held that “loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427
U.S. 347, 373 (1976). Therefore, provided he can prove his claims, Derrickson
would be entitled to injunctive relief.
      Based upon Derrickson’s concession that Hays should be dismissed because
she is not a statewide officer, we sustain the second preliminary objection. This
renders moot the first preliminary objection related to service on Hays. Because of
the early procedural posture of this case and our limited standard of review of a
demurrer, we overrule the third preliminary objection and direct the remaining
Respondent, Secretary Wetzel, to file an answer to Derrickson’s Petition.




                                           _____________________________________
                                           RENÉE COHN JUBELIRER, Judge




                                             7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Rodney Derrickson,                         :
                           Petitioner      :
                                           :
                    v.                     :   No. 467 M.D. 2017
                                           :
Cindy Hays, John Wetzel,                   :
                       Respondents         :


                                        ORDER


      NOW, April 3, 2018, upon consideration of the preliminary objections filed
by Cindy Hays (Hays) and John Wetzel (Secretary Wetzel) to the petition for review
filed by Rodney Derrickson (Derrickson), pro se, Derrickson’s response thereto, and
the parties’ briefs, it is ordered that the second preliminary objection related to Hays
is SUSTAINED and Hays is DISMISSED from this action, with prejudice. This
renders the first preliminary objection related to the service of Hays MOOT, and it
is DISMISSED. The remaining preliminary objection in the nature of a demurrer
is OVERRULED, and the remaining Respondent, Secretary Wetzel, is ordered to
file an answer to Derrickson’s petition for review within 30 days of this Order.




                                         _____________________________________
                                         RENÉE COHN JUBELIRER, Judge
