The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rodney Derrickson, :
Appellant :
: No. 1005 C.D. 2020
v. :
: Submitted: June 11, 2021
CO Straziser, et al. :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: May 5, 2022
Rodney Derrickson (Inmate) appeals from orders issued by the Court of
Common Pleas of the 37th Judicial District, Forest County Branch (Trial Court), that
sustained the demurrers of and entered summary judgment in favor of Correction
Officer (CO) Straziser, health care workers in the State Correctional Institution (SCI)
at Forest and the hearing examiner assigned to his grievance (collectively, DOC
Employees). Inmate filed a tort action under 42 U.S.C. §1983, alleging constitutional
violations and a retaliation claim predicated on an alleged civil conspiracy of DOC
Employees in removing him from his janitorial job in the medical unit for a false
misconduct. Inmate seeks a remand on the judgment regarding his retaliation claim
1
This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn
Jubelirer became President Judge.
and a remand on the order sustaining the preliminary objections to his due process
claim. Upon review, we affirm.
I. Facts & Procedural History
In determining the dispositive orders before us, the Trial Court relied on
the following facts. On February 17, 2015, Inmate began working as a janitor in the
medical unit of SCI-Forest. However, he did not appear for his first day and was an
hour late the following week; he also was observed conversing with other inmates
while on the job on more than one occasion. On February 26, 2015, Inmate
submitted an informal complaint against CO Straziser for making alleged false
statements regarding his failure to perform his job. One week later, CO Straziser
issued a misconduct report regarding Inmate socializing with other inmates instead of
working (Misconduct). Inmate was found guilty of the Misconduct, and as a result,
was removed from his job in the medical unit.2
Following his removal, in March 2015, Inmate filed a grievance, No.
554879, alleging that CO Straziser dismissed him from his job as a janitor in
retaliation against him for making an informal complaint. He also appealed the
Misconduct. However, the hearing examiner denied his appeal and deemed the
grievance a response to a misconduct and denied it on that basis.
In December 2015, Inmate filed a complaint (Complaint) in the Trial
Court alleging the following claims: retaliation for filing a grievance in violation of
his free speech rights under the First Amendment of the United States Constitution3
(Count I); conspiracy to commit official oppression in violation of 18 Pa.C.S. § 5301
2
Prison regulations include removal from a job as a sanction for a Class II misconduct. See
37 Pa. Code § 93.10(a)(2)(v).
3
U.S. CONST. amend. I.
2
(Count II); civil conspiracy in violation of the Civil Rights Act of 1871, 42 U.S.C.
§1983(3) (Count III); and violations of his procedural due process rights (Count IV).
Generally, Inmate alleged he received the Misconduct in retaliation for grievances
about prison staff, and that certain prison staff engaged in oppression and created a
hostile work environment by spreading rumors about him. Regarding Count IV, he
claimed the hearing examiner violated his due process rights when she denied his
final misconduct appeal. As a remedy, Inmate sought sums in excess of $75,000 for
compensatory and for punitive damages. The Complaint also included a demand for
a jury trial.
DOC Employees filed a preliminary objection in the nature of a
demurrer, asserting sovereign immunity as a defense and arguing Inmate failed to
exhaust his administrative remedies and did not establish a causal connection for his
retaliation claim.
In response, Inmate argued he timely asserted an affirmative defense to
the exhaustion objection, he also contended the causal link could be inferred based on
circumstantial evidence, and he was entitled to seek compensatory and/or punitive
damages. In support, he relied upon Bush v. Veach, 1 A.3d 985 (Pa. Cmwlth. 2010),
which held that a prisoner who alleges retaliation by prison employees for filing a
grievance has invoked his First Amendment rights.
The Trial Court sustained the demurrer in part, and overruled it in part,
as to the retaliation claim in Count I by order dated January 4, 2017 (2017 Order). As
such, the 2017 Order did not dispose of all claims against DOC Employees. DOC
Employees then filed an answer and new matter as to the retaliation claim.
Subsequent to motion practice and discovery requests, to which DOC
partially responded, DOC Employees moved for summary judgment, arguing Inmate
3
could not prove a causal connection between the protected activity and the adverse
action, i.e., removing Inmate from his job. The Trial Court granted the summary
judgment motion by order dated July 1, 2020 (SJ Order). Inmate timely filed a notice
of appeal of the SJ Order.
The Trial Court issued an opinion in support of the SJ Order addressing
the retaliation claim and requested damages. The Trial Court directed Inmate to file a
concise statement of the errors complained of on appeal under Pa.R.A.P. 1925.
Therein, Inmate identified errors relating to the 2017 Order sustaining the demurrer to
the civil conspiracy and due process claims, citing 37 Pa. Code §93.10, and the Trial
Court’s order declining to award sanctions when DOC Employees failed to comply
with a discovery order. After briefing, the matter is ready for disposition.
II. Analysis
On appeal,4 Inmate challenges both the Trial Court’s 2017 Order
sustaining the demurrer to Counts II through IV of his Complaint and the SJ Order
granting judgment in favor of DOC Employees. In his brief, Inmate argues he is
entitled to leeway as a pro se litigant, and asserts the Trial Court abused its discretion
in granting summary judgment in light of the disputes of material fact.
In their brief, DOC Employees argue this Court should quash the portion
of the appeal that pertains to the Trial Court’s 2017 Order on the preliminary
4
“Our [] review of a trial court’s order sustaining a preliminary objection or granting
summary judgment is limited to determining whether the trial court committed an error of law or an
abuse of discretion.” Barrel of Monkeys, LLC v. Allegheny County, 39 A.3d 559, 563 (Pa. Cmwlth.
2012) (citations omitted). An abuse of discretion “occurs where the trial court ‘reaches a
conclusion that overrides or misapplies the law, or where the judgment exercised is manifestly
unreasonable, or is the result of partiality, prejudice, bias, or ill will.’” Mitchell v. Shikora, 209
A.3d 307, 314 (Pa. 2019) (citation omitted).
4
objections. DOC Employees contend the appeal was untimely because it was filed
more than 30 days after the Trial Court issued its 2017 Order.
The legal standards applicable to dispositive motions on appeal are well
established:
When considering preliminary objections, the appellate court must
accept all well-pled facts and reasonable inferences therefrom as true.
Moreover, summary judgment is appropriate only in those cases where
the record clearly demonstrates that there is no genuine issue of material
fact and that a moving party is entitled to judgment as a matter of law.
The reviewing court must view the record in the light most favorable to
the nonmoving party, resolving all doubts as to the existence of a
genuine issue of material fact against the moving party. When the facts
are so clear that reasonable minds cannot differ, a trial court may
properly enter summary judgment.
Barrel of Monkeys, 39 A.3d at 563 (citations omitted). However, at the outset, we
consider DOC Employees’ challenge to the timeliness of Inmate’s appeal of the 2017
Order.
In general, only final orders of a government unit or trial court may be
appealed to an appellate court. Pa.R.A.P. 341(a). Rule 341(b)(1) defines a final
order as “any order that . . . disposes of all claims and of all parties . . . .” Pa.R.A.P.
341(b) (emphasis added). When a trial court sustains preliminary objections, such
that judgment is entered in favor of the defendant; this is a final appealable order.
Osevala v. Gaudette, 241 A.3d 500, 504-05 (Pa. Cmwlth. 2020); see also 20 Pa.
Appellate Practice § 341:3:1 (West 2019-2020 ed.). A final order is appealable
within 30 days. However, such an order sustaining a demurrer is a final, appealable
order where it results in the dismissal of all counts of the complaint, i.e., all claims
and all parties. See Osevala; Barrel of Monkeys; see also Cooper v. Frankford
Health Care System, Inc., 960 A.2d 134, 139 n.1 (Pa. Super. 2008).
5
While the 2017 Order addressed the substantive claims of the counts it
addressed, i.e., Counts II, III and IV of the Complaint, it was not immediately
appealable because it did not dispose of all claims. Stated differently, since the
retaliation claim in Count I remained for the Trial Court to resolve, the order was not
final. Therefore, quashal of Inmate’s appeal as to the 2017 Order is not appropriate.
Rather, Inmate properly appealed the 2017 Order when judgment was entered in the
SJ Order. See Barrel of Monkeys, 39 A.3d at 564 (“a notice of appeal filed from the
entry of judgment will be viewed as drawing into question any prior non-final orders
that produced the judgment.”; quoting K.H. v. J.R., 826 A.2d 863, 871 (Pa. 2003)).
Thus, we turn to merits of the Trial Court’s decision to sustain the demurrer as to
Counts II through IV.
A. 2017 Order: Preliminary Objections/Demurrer
“As a general matter, preliminary objections in the nature of a demurrer
allege that a pleading is, quite simply, legally insufficient. Pa.R.Civ.P. 1028(a)(4).”
Nationwide Mut. Ins. Co. v. Wickett, 763 A.2d 813, 817 (Pa. 2000). The 2017 Order
sustained the demurrer to the conspiracy to commit official oppression (Count II),
civil conspiracy (Count III), and due process (Count IV) claims.
A crucial element for a conspiracy-based claim is a meeting of the minds
as to a common purpose. See Weaver v. Franklin County, 918 A.2d 194 (Pa.
Cmwlth. 2007). To state a civil action for conspiracy, the complaint must allege a
combination of persons to do an unlawful act, an overt act in pursuit of the common
purpose and actual legal damages. Id. The unlawful act alleged in Count II was
official oppression.
As this Court recognized, there is no civil cause of action for “official
oppression,” which is a crime. Barner v. Correctional Officer Pientka (Pa. Cmwlth.,
6
No. 1679 C.D. 2016, filed June 12, 2017), slip op. at 4-5, 2017 WL 2536438.
“[A]bsent a civil cause of action for a particular act, there can be no cause of action
for civil conspiracy to commit that act.” Id., slip op. at 4, 2017 WL 2536438, at *2.
In our review, the Trial Court did not err in discerning no merit in the
civil conspiracy claim in Count II because the Complaint contains insufficient facts to
establish a “meeting of the minds.” Trial Ct., Slip Op. (Preliminary Objs.), 1/4/17, at
4 (Original Record, (O.R.), Item No. 19). For the same reasons, we hold the Trial
Court did not err in dismissing Count III, alleging a civil conspiracy. See Weaver.
Because a requisite element of a meeting of the minds is lacking, the Trial Court
properly sustained the demurrer to Counts II and III and dismissed those claims.
This Court similarly discerns no merit in Inmate’s appeal as to the
dismissal of Count IV, asserting the hearing examiner violated his due process rights.
To establish a due process violation in this context, Inmate needed to
allege a deprivation of a property right without due process of law. The law is clear
that there is no right to a specific prison job. See Miles v. Wiser, 847 A.2d 237 (Pa.
Cmwlth. 2004). Additionally, to the extent Inmate alleges a procedural due process
violation, there is no violation of the procedure set forth in 37 Pa. Code §93.10
regarding the handling of misconducts or grievances. An allegedly inadequate
grievance procedure,5 result-based as it is here, does not give rise to a Section 1983
claim. See Hoover v. Watson, 886 F. Supp. 410 (D. Del. 1995), aff’d, 74 F.3d 1226
(3d Cir. 1995). As these were the grounds for the due process violations set forth in
5
Pursuant to DC-ADM 804, specific procedures must be followed by an inmate while using
the inmate grievance system. However, Inmate’s appeal was resolved as a misconduct relating to
his removal from employment as a janitor in the medical unit. Subsequently, the removal was
reduced to a temporary suspension.
7
the Complaint, which are deficient as a matter of law as predicates for a due process
claim, the Trial Court did not err in sustaining the demurrer to Count IV.
Therefore, this Court affirms the Trial Court’s 2017 Order sustaining the
preliminary objections to Counts II, III and IV and dismissing those claims.
B. Summary Judgment Order: Count I/Retaliation
This Court’s review of an order granting summary judgment is plenary.
See O’Donoghue v. Laurel Savings Association, 728 A.2d 914, 916 (Pa. 1999).
“Summary judgment is appropriate only in those cases where the record clearly
demonstrates there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Yount v. Department of Corrections, 966
A.2d 1115, 1118 (Pa. 2009) (citation omitted). Further, where the facts are so clear
that reasonable minds cannot differ, a trial court may properly enter summary
judgment. Id.
Although Inmate is correct that Pa.R.Civ.P. 1035 provides that judgment
should not be granted unless there are no disputed material facts, he does not
recognize the purely legal issue presented to the Trial Court regarding the lack of
causation. Instead, he focuses on the veracity of the allegations underlying his
claims. He contends that since the Misconduct was filed after he complained about
the conspiracy against him, which he alleges was designed to remove him from his
post, the Trial Court erred in failing to resolve that issue in his favor. We disagree.
To establish a retaliation claim predicated on exercising a constitutional
right, Inmate needed to show the following elements: (1) his conduct was
constitutionally protected; (2) an adverse action by prison officials; and, (3) the
constitutionally protected conduct was a substantial motivating factor of the adverse
action. See Bush; Yount. The Trial Court determined that Inmate established the
8
protected activity in filing of a grievance and showed an adverse action in that he was
removed from his job. See Trial Ct., Slip Op., 7/1/2020.
However, the Trial Court determined the filing of the protected activity,
i.e., filing a grievance, was not a motivating factor in removal from his job, and thus
the causal connection was not met. See Pa.R.A.P. 1925 Op. at 2. Rather, the Trial
Court concluded, based on materials Inmate submitted, that multiple staff noted his
refusal to obey orders and failure to perform work, which were the motivation for the
Misconduct and related removal.6
Based on the materials included in the summary judgment motion and
response, the Trial Court had adequate basis for deeming Inmate’s retaliation claim
deficient. Inmate did not allege more than mere proximity in time for the alleged
retaliatory action (removal from his job) and his informal complaint against CO
Straziser. That does not alone constitute a substantial motivating factor as required
for a causal link between the right and the adverse action. Causation is a legal
prerequisite to a retaliation claim. Yount. Therefore, the Trial Court did not err in
granting judgment in favor of DOC Employees on Count I.
C. Discovery Order
Lastly, we consider Inmate’s contention that the Trial Court abused its
discretion in denying requested sanctions for alleged violation of its discovery order.
It is well established that a discovery sanction, and its severity, are within the
discretion of the Trial Court. Zauflik v. Pennsbury School District, 72 A.3d 773, 797
6
Inmate also argued the Trial Court erred in requiring a physical injury for an alleged free
speech violation in filing the Misconduct as retaliation. Based on our disposition, whereby we
uphold the Trial Court’s holding that the elements for the underlying claim of retaliation are not
met, it is not necessary to determine whether damages (compensatory or punitive) were properly
denied. Regardless, Inmate did not show egregious or malicious conduct for punitive damages.
Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766 (Pa. 2005).
9
(Pa. Cmwlth. 2013) (citations omitted). Therefore, “this Court ‘will not disturb such
a sanction absent an abuse of that discretion.’” Id. Such an “abuse of discretion . . .
requires a showing of manifest unreasonableness, partiality, ill-will, or such lack of
support as to be clearly erroneous.” Id. We agree with the Trial Court that Inmate
did not satisfy his heavy burden to show an abuse of discretion in the denial of his
motion for sanctions here. See Pa.R.A.P. 1925 Op. at 6.
III. Conclusion
For the foregoing reasons, the Trial Court’s orders, i.e., the 2017 Order
and the SJ Order, are affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rodney Derrickson, :
Appellant :
: No. 1005 C.D. 2020
v. :
:
CO Straziser, et al. :
ORDER
AND NOW, this 5th day of May, 2022, the Orders of the Court of
Common Pleas of the 37th Judicial District, Forest County Branch, sustaining
preliminary objections and entering summary judgment in favor of Appellees are
AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge