           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Rasheed Nifas,                          :
                   Appellant            :
                                        :
             v.                         :         No. 1024 C.D. 2015
                                        :         Submitted: August 14, 2015
John E. Wetzel, et al., S. Moore-Smeal; :
D. Burns; J. Witheriter; G. Rozum;      :
D. Gehlmann; J. Mazurkiewicz;           :
A. Joseph; M. Hainsworth; J. Bianconi :


BEFORE:       HONORABLE DAN PELLEGRINI, President Judge1
              HONORABLE MARY HANNAH LEAVITT, Judge2
              HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE LEAVITT                                              FILED: February 16, 2016

              Rasheed Nifas, pro se, appeals an order of the Somerset County Court
of Common Pleas (trial court) that dismissed his complaint based on the
preliminary objections of Secretary Wetzel, Executive Deputy Secretary Moore-
Smeal, Superintendent Rozum, and other employees of the Pennsylvania
Department of Corrections (Prison Officials). On appeal, Nifas contends that the
trial court erred in sustaining Prison Officials’ demurrer to his retaliation claim.
For the reasons that follow, we reverse and remand.



1
  This case was assigned to the opinion writer on or before December 31, 2015, when President
Judge Pellegrini assumed the status of senior judge.
2
  This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
             On June 20, 2014, Nifas filed a complaint under 42 U.S.C. §1983
alleging that Prison Officials unlawfully retaliated against him for exercising his
constitutional right to free speech. The alleged retaliation consisted of returning
Nifas to the Restricted Release List because he filed a grievance. An inmate on the
Restricted Release List will not be considered for a transfer from the Restricted
Housing Unit to the general prison population.        In support, Nifas’ complaint
averred the following relevant facts.
             In September of 2013, Nifas was informed that his “release from the
RRL [Restricted Release List] confinement would be reviewe[d] ....” Complaint,
¶24. On January 16, 2014, Prison Officials informed Nifas that he had been
removed from “RRL confinement status” but did not release him “to general
population.” Complaint, ¶26. Under the “alleged transition plan” Nifas was to
“work in the restricted housing unit for ‘free’” for several months. Id. On January
28, 2014, Nifas wrote to Prison Officials objecting to having to do “‘free labor’ for
several months in the [Restricted Housing Unit] prior to being released” to the
general population. Complaint, ¶27. On February 1, 2014, Nifas filed a grievance
against Prison Officials “for holding plaintiff in the [Restricted Housing Unit]
without a penological interest, and refusing to release the plaintiff after the DC-46
vote sheet was approved.” Complaint, ¶28.3 Further, the grievance alleged that the
Department does not have a policy that requires “‘free labor’ prior to being
removed or released from [the Restricted Release List]” and, thus, it lacked a
penological interest in free labor. Id. The grievance also challenged the “made-up



3
 We glean from the context of Nifas’ averment that a DC-46 vote sheet is the form
memorializing Prison Officials’ vote to release him from restricted housing.


                                         2
‘free labor’ antiquated concepts prior to actual release to general population.”
Complaint, ¶31.
             On March 20, 2014, Prison Officials reversed the decision to remove
Nifas’ name from the Restricted Release List even though refusing to do free labor
is not a criterion for “highly restricted confinement.”          Complaint, ¶32.   The
complaint alleged that Defendant Burns falsified the rationale for Nifas’ return to
the Restricted Release List and falsified a “DC-46 vote sheet to continue to confine
plaintiff under RRL status in Mar. 2014.” Id. The complaint further alleged that
Prison Officials retaliated against Nifas for filing his February 1, 2014, grievance,
which is conduct protected by the First Amendment. Complaint, ¶34.
             The complaint seeks a declaratory judgment that Nifas was denied his
right of free speech; that requiring inmates to provide free labor is unconstitutional;
compensatory damages in the amount of $25,000 per defendant; punitive damages
in the amount of $25,000 per defendant; and nominal damages. In response,
Prison Officials filed preliminary objections in the nature of a demurrer, asserting
that the complaint failed to state a legally cognizable claim.
             On September 2, 2014, the trial court conducted a telephone
conference on the Commonwealth’s demurrer.             Counsel for Prison Officials
defended the requirement that Nifas work for free, stating:

             [Nifas] was asked to participate in the condition prior to his
             release to establish that he was no longer a threat and that he
             could be released in general population.
             [Prison Officials] don’t want to release someone prematurely
             and then have someone injured or attacked, or something like
             that. So there’s supposed to be a gradual process.
             As I understand it, the stepdown program was to involve him
             being a block worker for two hours a day for a period of time --

                                          3
             it looks like 60 days -- and then he would be -- then there would
             be additional conditions after that.
             But the thing is that before [Prison Officials] want to release
             [Nifas], they want to establish that he is cooperative and will
             follow orders and things like that.

Notes of Conference, September 2, 2014, at 13. Counsel further explained:

             [Nifas] has numerous misconducts, I believe 45 misconducts,
             since confinement in the [Department of Corrections], and he
             has -- [Prison Officials] also indicate he has displayed a poor
             attitude towards staff.
             So this is one way of establishing that [Nifas] could be
             compliant with orders if he was released in general population.

Id. at 14.
             In response, Nifas stated:

             Your, Honor, I’ve been incarcerated for 24 years straight, and I
             never received a misconduct at this institution no matter what
             he said. And, Your Honor, it’s -- if -- he’s arguing something
             that has absolutely nothing at all that I stated in my complaint
             or my response to the pleadings and in support of my responses.
             Did not. Nothing at all. Absolutely nothing at all.
             In fact, it’s not about the attitude, because [Prison Officials] put
             two and three people in one cage that’s on administrative
             custody and will function around other prisoners and the staff.
             And it’s the reason why they first made a recommendation to
             remove me, because there was no penological interest or threat
             towards inmates or staff. You see?
             And then it wasn’t 60 days, Your Honor. It was six months.
             They actually wanted me to work in the Restricted Housing
             Unit for six months. And no -- with no pay. And I’ve been in
             the hole almost seven and a half years. It’s ludicrous.
             And then if they flood their cells, they throw urine, some
             individuals, and – there’s some mentally -- really, really need
             some help individuals that has defecation and so forth -- and

                                          4
            they wanted me to go and clean this when they already have
            workers that come from population that -- you know, ready to
            go home. They’re like six months and so forth. They have a
            unit in population for them. And they come and they serve the
            trays and clean and sweep and so forth, and they get paid like
            42 cents an hour, which is one of the highest pays. And they
            actually wanted me to go -- they could wake me up in the
            middle of the night, someone flood[ed] the floor -- actually get
            up out of bed, like -- and go sweep and mop, and do things like
            this while the one’s [sic] who actually get paid are on the unit
            and don’t come over to restricted housing.

Id. at 14-16 (emphasis added).
            At the conclusion of Nifas’ statement, the trial court stated that it
would take Prison Officials’ motion to dismiss under advisement.
            On October 30, 2014, the trial court issued an order sustaining Prison
Officials’ preliminary objections and dismissing Nifas’ complaint.               In an
accompanying memorandum opinion, the trial court framed the retaliation claim in
the complaint as follows:

            [Nifas] alleges that he was being required to work for free in the
            Restricted Housing Unit [RHU] and upon his refusal to do so he
            filed a grievance. Following the filing of a grievance his
            removal from the RRL was withdrawn. He claims that the
            action taken by [Prison Officials] was in retaliation for his
            grievance.

Trial court op. at 1-2. The trial court then offered the following rationale for
dismissing Nifas’ complaint:

            The facts, however, indicate that the action taken by [Prison
            Officials] was a reversal of the decision to remove [Nifas] from
            the RRL because he would not comply with the program
            conditions established, including that [Nifas] work in the RHU
            without pay. As previously indicated, [Nifas] is not entitled to
            be paid for prison work or work in general. The complaint at
            Paragraph 27 indicates that [Nifas] wrote to the defendant,
                                         5
               Jeffrey Witheriter, Regional Assistant of the Department of
               Corrections, complaining about the requirement “to do ‘free
               labor’ for several months in the RHU, prior to being released
               when absolutely no penological interest exists for [Nifas] to be
               confined in the RHU.” Complaint ¶27.[4] Accordingly, [Nifas]
               indicated his unwillingness to comply with the conditions
               established for his removal from the RRL before the filing of
               his grievance on February 1, 2014. [Nifas’] free-speech in the
               filing of grievances has not been deprived by the action taken
               by [Prison Officials], but rather [Prison Officials’] action was
               taken before the filing of a grievance based on his refusal to
               comply with the conditions established. An inmate should not
               be in a position to dictate the terms of his release from the RRL,
               but rather should be deemed to be fully compliant with those
               conditions in order to achieve a return to the general population.
               It is not the position of the court to second-guess the
               penological methods established by the Department of
               Corrections in the handling of its inmates.

Trial court op. at 2-3 (emphasis added). Nifas appealed to this Court.
               On appeal,5 Nifas contends that the trial court erred because his
complaint stated a claim for retaliation. Prison Officials disagree. They argue that
the complaint did not plead facts sufficient to show a causal link between the
protected activity, i.e., the filing of a grievance, and the termination of Nifas’
transition out of the Restricted Housing Unit by returning him to the Restricted




4
  The complaint alleges that this letter was written on January 18, 2014.
5
  A preliminary objection in the nature of a demurrer must be sustained where it is clear and free
from doubt that the law will not permit recovery under the facts alleged. Petsinger v.
Department of Labor and Industry, 988 A.2d 748, 753 n.1 (Pa. Cmwlth. 2010). In ruling on
preliminary objections, this Court accepts as true all “well-pleaded material facts and any
inferences reasonably deduced therefrom.” Richardson v. Pennsylvania Department of
Corrections, 991 A.2d 394, 395 (Pa. Cmwlth. 2010).


                                                6
Release List. They quote, at length, from Nifas’ grievance,6 which is not in
evidence.
               Pennsylvania requires a fact-pleading, which means the pleading must
state the “facts essential to support the claim.” Richardson v. Wetzel, 74 A.3d 353,
356-57 (Pa. Cmwlth. 2013) (quoting Sevin v. Kelshaw, 611 A.2d 1232, 1235 (Pa.
Super. 1992)). When reviewing preliminary objections “[a]ll well-pled facts in the
complaint, and reasonable inferences arising from those facts, are accepted as
true.” Richardson, 74 A.3d at 356 (quoting Wilson v. Marrow, 917 A.2d 357, 361
n.3 (Pa. Cmwlth. 2007)).7




6
  In their brief, Prison Officials offer reasons why Nifas’ transition to the general population
requires free labor. These reasons are nowhere stated in the complaint. Prison Officials
misunderstand the scope of this Court’s review at this phase of the proceeding. The trial court
had to rule on whether Nifas had sufficiently pled a claim of retaliation in his complaint, not
whether Prison Officials’ actions were proper. At this point, no evidence has been offered by
either party. Our review is limited to considering only those well-pled facts contained in Nifas’
complaint.
7
  Richardson established that a claim for retaliation requires an inmate to show that: (1) he
engaged in constitutionally protected conduct; (2) the retaliation against that conduct resulted in
adverse action; (3) the protected conduct was a substantial and motivating factor for the
retaliation; and (4) the retaliatory action did not further a legitimate penological goal.
Richardson, 74 A.3d at 357. Furthermore,
         [a] claim of retaliation is insufficiently pled where the prisoner merely alleges that
         he was charged and found guilty of misconduct. Otherwise, under the guise of
         claiming retaliation, we would turn a case filed in our original jurisdiction into a
         thinly disguised impermissible appeal of the decision on the misconduct
         conviction.
Id. (quoting Brown v. Blaine, 833 A.2d 1166, 1171 n.11 (Pa. Cmwlth. 2003)).
         Richardson is of limited relevance here. In Richardson, the inmate filed a retaliation
action in order to lodge a collateral attack on his adjudicated misconduct. Nifas has not been
convicted of misconduct. There has been no hearing on his return to the Restricted Release List
and, thus, there is no judgment to attack collaterally.


                                                7
             The complaint states, “[a]pproximately seventeen days after the
Grievance coordinator signed the grievance received, [Prison Officials] scheduled
another PRC hearing on Feb. 20, 2014, because of [Nifas’] grievance against
[Prison Officials] and submitted a DC-46 vote sheet with falsified rationales to
withdraw the previous support.” Complaint, ¶34(3). The complaint alleges that
Prison Officials decided to reinstate his placement on the Restricted Release List,
i.e., without an avenue to enter the general population, because Nifas filed a
grievance. Id. The complaint also alleges that “[a]bsolutely no PA Dep’t of
Correction policy exists that coerce[s] ‘free labor’ prior to being removed or
released from [Restricted Housing Unit] confinement.” Complaint, ¶28. In sum,
the complaint alleges that Prison Officials did not have a legitimate penological
interest in keeping him on the Restricted Release List and did so because of his
grievance.
             The trial court found that “the facts ... indicate that the action taken by
[Prison Officials] was a reversal of the decision to remove [Nifas] from the RRL
because he would not comply with the program conditions established.” Trial
court op. at 2-3 (emphasis added).       The trial court went on to hold that the
complaint did not state a claim for retaliation because Prison Officials’ “action was
taken before the filing of a grievance based on his refusal to comply with the
conditions established.”    Trial court op. at 3 (emphasis added).         The “facts”
referred to by the trial court are not stated in the complaint and have yet to be
established. Notably, one of the attachments to the complaint is a memo from Dan
Caro to Nifas, which states that “[y]our RRL status was continued in March 2014,”
which was after he filed the grievance on February 1, 2014.             Memorandum




                                           8
Exhibit, 4/22/14.8 The trial court’s factual finding on the sequence of events is
contrary to the facts averred in the complaint.
               The complaint alleges that Prison Officials’ actions were based on
lies, not Nifas’ refusal to participate in the transition plan. The trial court stated
that Nifas “indicated” his unwillingness to comply with the transition plan by
complaining about the free labor requirement. Notably, Nifas’ pleading does not
state that he refused to comply with the transition plan. Further, non-compliance
cannot be inferred from the pleading’s averment that Nifas objected to doing free
labor.
               Nifas’ claim is that he was returned to the Restricted Release List in
retaliation for filing a grievance. In dismissing the complaint, the trial court found,
as fact, that Nifas’ return to the Restricted Release List took place before he filed

8
  This memo is not evidence. It is referred to because it underscores the point that the complaint
does not allege that the decision of Prison Officials to return Nifas to the Restricted Release List
took place before the grievance was filed but, rather, afterward.
        The Pennsylvania Rules of Civil Procedure require that where a “claim or defense is
based upon a writing, the pleader shall attach a copy of the writing ....” Pa. R.C.P. No. 1019(i).
Generally, this rule applies where the writing at issue is a contract, in which case the contract
must be attached to the complaint. See, e.g., Jost v. Phoenixville Area School District, 406 A.2d
1133 (Pa. Super. 1979). Documents that may have evidentiary value need not be attached, and
“it is improper to attach them.” GOODRICH AMRAM 2d, §1019(i):5. Accordingly, unlike the
dissent, we do not use the unnecessary exhibits attached to Nifas’ complaint but, rather, the facts
as they appear in the pleading.
        Where there is an inconsistency between a factual averment in a pleading and a document
attached thereto, the document will prevail or the court may require a more specific or accurate
pleading. Id. at 1019(i):5. This maxim has been applied where the writing, a contract, is
required to be attached to the pleading. See, e.g., Cohen v. Carol, 35 A.2d 92, 93 (Pa. Super.
1943). Nifas attached exhibits to show that he had exhausted his administrative remedies, not to
establish anything stated in these exhibits as a matter of fact. The exhibits may or may not have
evidentiary value. It is too early in the proceeding to say. The exhibits do not contradict his
averment of retaliation, i.e., that his grievance resulted in his return to the Restricted Release
List.


                                                 9
the grievance. That fact is contrary to the allegations in the complaint and needs to
be established in a record, as do Prison Officials’ reasons for returning Nifas to the
Restricted Release List.
             The “argument” of Prison Officials at the conference went far afield
of their demurrer. It began, for example, with a recitation of the many misconducts
that had been lodged against Nifas. Counsel then went on to offer a defense of
Prison Officials’ transition plan. These points should be presented in an answer.
Prison Officials seek to dispose of the complaint without a protracted proceeding.
This can be done with a motion for judgment on the pleadings or a motion for
summary judgment. There is no other way to develop a factual record as the basis
for a summary disposition of a complaint.
             In sum, the trial court erred in dismissing the complaint on the basis of
“facts,” which were not in the pleading and at points contrary to the averments in
the pleading. Our Supreme Court has held that a demurrer must be free of doubt to
be sustained:

             [T]he question presented in a demurrer is whether, on the facts
             averred, the law says with certainty that no recovery is possible.
             Where a doubt exists as to whether a demurrer should be
             sustained, this doubt should be resolved in favor of overruling
             it.

MacElree v. Pennsylvania Newspapers, Inc., 674 A.2d 1050, 1056 (Pa. 1996)
(quotations omitted). The trial court’s exercise in fact finding was simply not
consistent with the demurrer standard.
                For the foregoing reasons, the order of the trial court is reversed and
this matter remanded for Prison Officials to file an answer to Nifas’ complaint.

                                                ______________________________
                                                MARY HANNAH LEAVITT, Judge
                                           10
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Rasheed Nifas,                          :
                   Appellant            :
                                        :
             v.                         :    No. 1024 C.D. 2015
                                        :
John E. Wetzel, et al., S. Moore-Smeal; :
D. Burns; J. Witheriter; G. Rozum;      :
D. Gehlmann; J. Mazurkiewicz;           :
A. Joseph; M. Hainsworth; J. Bianconi :


                                     ORDER

             AND NOW, this 16th day of February, 2016, the order of the Somerset
County Court of Common Pleas dated October 30, 2014, in the above-captioned
matter is hereby REVERSED and this matter is REMANDED for Appellees to file
an answer.
             Jurisdiction is relinquished.

                                             ______________________________
                                             MARY HANNAH LEAVITT, Judge
               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rasheed Nifas,                          :
                           Appellant    :
                                        :
                   v.                   :
                                        :
John E. Wetzel, et al., S. Moore-Smeal; :
D. Burns; J. Witheriter; G. Rozum;      :
D. Gehlmann; J. Mazurkiewicz;           :     No. 1024 C.D. 2015
A. Joseph; M. Hainsworth; J. Bianconi :       Submitted: August 14, 2015


BEFORE:      HONORABLE DAN PELLEGRINI, President Judge
             HONORABLE MARY HANNAH LEAVITT, Judge
             HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

DISSENTING OPINION BY
JUDGE COVEY                                   FILED: February 16, 2016

             I respectfully dissent from the Majority’s decision reversing the
Somerset County Common Pleas Court’s (trial court) October 30, 2014 order
sustaining the preliminary objections filed by the Department of Corrections (DOC)
Secretary John E. Wetzel, DOC Executive Deputy Secretary Shirley Moore-Smeal,
and DOC employees Daniel Burns, Jeffrey Witheriter (Witheriter), Gerald Rozum
(Rozum), Daniel Gehlmann (Gehlmann), Joseph Mazurkiewicz (Mazurkiewicz),
Allen Joseph (Joseph), Melissa Hainsworth and Joseph Bianconi (collectively, Prison
Officials), dismissing Rasheed Nifas’ (Nifas) complaint with prejudice, and
remanding the matter to the trial court for Prison Officials to file an answer.
             The issue before this Court is whether Nifas sufficiently pled his
retaliation claim. In his complaint, Nifas alleged that although he was promised
removal from the Restricted Release List (RRL) it never occurred because he filed a
grievance against Prison Officials for making him work for free. In their preliminary
objections, Prison Officials asserted that the complaint did not plead facts sufficient
to show a causal link between the protected activity of filing a grievance, and the
termination of Nifas’ transition from the restricted housing unit (RHU) to general
population.
              Initially,
              [t]he Facility Manager/designee may request that an inmate
              be placed on the [RRL] when he/she poses a threat to the
              secure operation of the facility and where a transfer to
              another facility or jurisdiction would not alleviate the
              security concern. The Secretary/designee must approve
              placing the inmate in this status.

Complaint Ex. 11, DC-ADM 802 Procedures Manual at 1-2. Further,

              [a]n inmate identified on the RRL may not be released from
              a[n RHU] . . . without the written approval of the
              Secretary/designee.

              The PRC [Program Review Committee] may make a
              recommendation to the Facility Manager/designee if it is
              believed that an inmate on the RRL could be safely released
              to general population or to a Specialized Housing Unit.

Id. at 4-2. Nifas contends that such recommendation was made, but then rescinded
because he filed a grievance.
              The Majority holds that

              Prison Officials seek to dispose of the complaint without a
              protracted proceeding. This can be done with a motion for
              judgment on the pleadings or a motion for summary
              judgment. There is no other way to develop a factual record
              as the basis for a summary disposition of a complaint.

Majority Op. at 9. However, Prison Officials have filed preliminary objections in the
nature of a demurrer.


                                        AEC - 2
‘[T]he question presented in a demurrer is whether, on the
facts averred, the law indicates with certainty that no
recovery is possible. In reviewing a lower court’s decision
to grant a demurrer, our Court’s standard of review is de
novo.’ Stilp v. Gen[.] Assembly, . . . 974 A.2d 491, 494
([Pa.] 2009) (citations omitted).
In reviewing preliminary objections, ‘[a]ll well-pled facts
in the complaint, and reasonable inferences arising from
those facts, are accepted as true. However, unwarranted
inferences, conclusions of law, argumentative allegations or
expressions of opinion need not be accepted.’ Wilson v.
Marrow, 917 A.2d 357, 361 n.3 (Pa. Cmwlth. 2007)
(citation omitted). Further, Pennsylvania is a fact-pleading
jurisdiction; consequently, a pleading must not only
apprise the opposing party of the asserted claim, ‘it
must also formulate the issues by summarizing those
facts essential to support the claim.’ Sevin v. Kelshaw, . .
. 611 A.2d 1232, 1235 ([Pa. Super.] 1992).
. . . . In Yount v. Department of Corrections, . . . 966 A.2d
1115, 1120–21 ([Pa.] 2009), our Supreme Court held that to
prevail on a First Amendment retaliation claim, the
complainant must state sufficient facts to show that: (1) he
engaged in constitutionally[-]protected conduct; (2) the
retaliation against that conduct resulted in adverse action;
(3) the protected conduct was a substantial and motivating
factor for the retaliation; and (4) the retaliatory action did
not further a legitimate penological goal. Id.
In addition, this Court has cautioned that:
    [a] claim of retaliation is insufficiently pled where
    the prisoner merely alleges that he was charged and
    found guilty of misconduct. Otherwise, under the
    guise of claiming retaliation, we would turn a case
    filed in our original jurisdiction into a thinly
    disguised impermissible appeal of the decision on
    the misconduct conviction.
Brown v. Blaine, 833 A.2d 1166, 1171 n.11 (Pa. Cmwlth.
2003) (citing Edmunson v. Horn, 694 A.2d 1179 (Pa.
Cmwlth. 1997)).



                           AEC - 3
Richardson v. Wetzel, 74 A.3d 353, 356-57 (Pa. Cmwlth. 2013) (emphasis added).
Further, “courts reviewing preliminary objections may not only consider the facts
pled in the complaint, but also documents or exhibits attached to it.” Lawrence v.
Dep’t of Corr., 941 A.2d 70, 71 (Pa. Cmwlth. 2007).
             According to Nifas’ allegations set forth in his complaint, his removal
from the RRL was conditioned upon him doing free labor in the RHU. Specifically,
Nifas alleges, in relevant part:

             26. On Jan. 16, 2014, . . . Mazurkiewicz and Joseph
             informed [Nifas] of the removal from the RRL
             confinement status. [Nifas] appeal[ed] the PRC review
             for refusing to release [Nifas] to general population.
             [] Rozum; Mazurkiewicz; and Joseph[‘s] alleged
             transition plan was to have [Nifas] perform work in the
             restricted housing unit for ‘free,’ for several months
             doing ‘free labor,’ the other prisoners from population
             are hired to do and come to the RHU to work
             every[]day. . . .
             27. On January 28, 2014, [Nifas] wrote to . . . Witheriter
             regarding . . . Rozum; Gehlmann; Mazurkiewicz; and
             Joseph requiring [Nifas] to do ‘free labor’ for several
             months in the RHU, prior to being released . . . .
             28. On Feb. 1st, 2014, [Nifas] filed a grievance . . . .
             ....
             30. On Feb. 20, 2014 [Nifas] wrote . . . Witheriter about the
             [Prison Officials] refusal to release [Nifas] to general
             population, and that [Nifas] never received any
             documentation of this so-called step down plan policy to
             work for ‘free’ in the RHU, prior to being released to
             population.
             On Feb. 20, 2014, . . . Gehlmann and Joseph falsified
             documentation to reverse previous support for release
             from RRL confinement, only because [Nifas] would not
             work for ‘free’ doing ‘free labor’ in the RHU for several
             months. . . .

                                        AEC - 4
Complaint at 5-6 (emphasis added). The exhibits attached to Nifas’ complaint further
reflect that the working requirement is part of the step down program for release from
RHU “to make sure [Nifas is] able to successfully reintegrate back into the General
Population and adjust positively.” Complaint Ex. 4 at 2. These documents reveal the
work requirement’s legitimate penological goal. Based on his allegations, Nifas was
aware of this condition as of January 16, 2014. See Complaint at ¶26. Indeed, in his
January 21, 2014 appeal from the January 16, 2014 action Nifas stated that “[Prison
Officials] allege[d] that [Nifas] must do general ‘Free Labor’ prior to release for
several months, if [Nifas] does not do the ‘Free Labor’ prior to release- that [Nifas]
cannot be released to General Population . . . .” Complaint Ex. 3 at 2 (emphasis in
original).
             Although Nifas claims Prison Officials falsified documents to prevent
him from being released from RHU because he filed a grievance, his complaint does
not contain any allegations that could sustain that inference. Rather, his complaint
sets forth factual averments, as well as his exhibits attached thereto, that sustain the
inference that he was denied release from RHU because he did not perform the work
requirements which furthered a legitimate penological goal. Thus, the allegation that
Prison Officials falsified documents to prevent him from being released from RHU
when Nifas’ own documents support that he was denied this transfer for not
participating in the work program, which Nifas averred was communicated to him in
January 2014, cannot support a claim of retaliation.
             After reviewing the complaint and the exhibits attached thereto, I
“conclude that the alleged facts are insufficient to meet the fourth prong [of a
retaliation claim] because they fail to demonstrate that the retaliatory action - [not
removing Nifas from the RRL] - did not further a legitimate penological goal.”
Richardson, 74 A.3d at 357. This conclusion is especially true in light of the exhibits
Nifas appended to his complaint which provide the reason Nifas’ name was not
                                        AEC - 5
removed from the RRL, i.e., his refusal to work for free as part of the prison’s step
down program.
            For all of the above reasons, I would affirm the trial court’s order.


                                      ___________________________
                                      ANNE E. COVEY, Judge




                                       AEC - 6
