The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vito A. Pelino, :
Petitioner :
:
v. : No. 221 M.D. 2022
:
Captain Kennedy and Tracey :
Shawley, :
Respondents : Submitted: October 10, 2023
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: November 2, 2023
Currently before us are Respondents Captain Kennedy and Tracey Shawley’s
(individually Kennedy and Shawley, and collectively Respondents) preliminary
objections to Petitioner Vito A. Pelino’s (Petitioner) “Amended Petition for Review
Seeking Declaratory and Injunctive Relief” (Amended Petition). Petitioner, an
inmate currently incarcerated within our Commonwealth’s prison system at State
Correctional Institution (SCI)-Greene, alleges in his Amended Petition that
Respondents retaliated against him because he was negotiating the settlement of a
civil rights suit he had filed against other Department of Corrections (DOC)
personnel in federal court.1 Upon review, we overrule Respondents’ preliminary
objections and direct them to answer the Amended Petition within 30 days.
1
Petitioner identifies his civil rights lawsuit as having been filed in the United States
District Court for the Western District of Pennsylvania under the following caption and docket
number: “Pelino v. Gilmore, et al., Civil Action No. 2:18-cv-01232-DSC-MPK.” Am. Pet. at 1, 3
(Petitioner did not individually number the paragraphs in his Amended Petition, so we elect to cite
(Footnote continued on next page…)
I. Background
The relevant facts, as gleaned from Petitioner’s Amended Petition and this
matter’s procedural history, are as follows. On July 14, 2021, Kennedy issued a
misconduct report, in which Kennedy stated that, according to a SCI-Greene
correctional officer identified as “CO Journic,” Petitioner had refused to work at his
prison job and had declined to obey an order from prison staff. Am. Pet. at 2, Ex. A.
Kennedy deemed Petitioner’s behavior to constitute a Class 1 misconduct, and
“referred” the matter “to Unit Commander for informal resolution.” Id., Ex. A.
Petitioner remained unaware of this misconduct report, however, until July 21, 2021,
when Shawley, the Unit Manager of C-Block at SCI-Greene, presented it to him
during the course of an informal resolution proceeding, regarding which Petitioner
was given little or no advance notice. Id. at 2; see id., Exs. B, F. Shawley concluded
that the misconduct report stemmed from a “misunderstanding” between Petitioner
and staff at SCI-Greene, but nevertheless punished Petitioner by restricting him to
his cell for two days. Id. at 4-5, Ex. B. Petitioner then challenged this misconduct
through the DOC’s internal misconduct appeal and grievance processes, but his
efforts were ultimately unsuccessful. Id. at 2-3, Exs. C-E.
Petitioner reacted to this by filing a Petition for Review in our Court on April
8, 2022, followed by his Amended Petition on October 12, 2022. In his Amended
Petition, Petitioner alleges that Respondents’ issuance of the aforementioned
misconduct, handling of the informal resolution proceeding, and consequent
issuance of punishment were in retaliation against him for his federal civil rights
thereto using page numbers). In that action, Petitioner “claim[ed] that a policy of video recording
strip searches at SCI-Greene violate[d] his Fourth Amendment rights[, U.S. CONST. amend. IV].
He also claim[ed] that [the named] [d]efendants [in that action] retaliated against him for filing
th[e] lawsuit, in violation of his First Amendment rights[, U.S. CONST. amend. I].” Pelino v.
Gilmore (W.D. Pa. No. CV 18-1232, filed Dec. 18, 2020), 2020 WL 9264961, at *1.
2
lawsuit, thereby infringing upon his First Amendment right to access the courts, and
in contravention of DOC’s administrative regulations and policies. Id. at 3-5. As
relief, Petitioner requests a declaratory judgment confirming these assertions, as well
as injunctive relief compelling Respondents to grant the internal appeal he filed
regarding the misconduct and to remove the charges made therein from his prison
record, as well as prohibiting Respondents from citing him again for the same
alleged conduct that gave rise to the original misconduct. Id. at 5.2
Respondents then filed preliminary objections to the Amended Petition on
February 1, 2023. Petitioner then replied in opposition thereto on February 13, 2023.
The parties subsequently filed briefs in support of their respective positions and,
consequently, the preliminary objections are now ready for disposition.
II. Discussion
Respondents present what amounts to two arguments for our consideration,
which we summarize as follows. First, this Court lacks appellate jurisdiction over
the Amended Petition, because the decision to issue an inmate misconduct does not
constitute an adjudication that is subject to appellate review. Respondents’ Br. at 7-
8. Second, they demur to the Amended Petition on the basis of Petitioner’s putative
2
Though Petitioner does not expressly state in his Amended Petition that he makes his
First Amendment claim pursuant to 42 U.S.C. § 1983, we nevertheless conclude that this is the
case. Enacted as part of the Civil Rights Act of 1871, this statute allows individuals to sue a “person
who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory
or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws[.]” 42 U.S.C. § 1983.
3
failure to state a viable retaliation claim. Id. at 7-12.3 We address each of these
arguments in turn.4
Respondents’ first argument is entirely misplaced. It is true that “[i]nmate
misconducts are a matter of internal prison management and, thus, do not constitute
adjudications subject to appellate review.” Hill v. Dep’t of Corr., 64 A.3d 1159, 1167
(Pa. Cmwlth. 2013). However, Petitioner does not seek to invoke our appellate
jurisdiction in this matter. To the contrary, he expressly states that he filed his
Amended Petition pursuant solely to our original jurisdiction. See Am. Pet. at 1
(citing 42 Pa. C.S. § 761(a)(1), which confers original jurisdiction to this Court over
certain kinds of “civil actions or proceedings[,]” as the jurisdictional hook for his
lawsuit). Respondents’ preliminary objection to our appellate jurisdiction in this
matter is therefore baseless, as it pertains to a jurisdictional argument that Petitioner
did not make in his Amended Petition. See Petitioner’s Br. at 7 (“Respondents
misconstrue Petitioner’s intent. Petitioner did not intend the [Amended Petition] as
3
Respondents asserted in their preliminary objections that “[i]t appears that [Petitioner] is
[also] pursuing a due process claim relative to the misconduct procedures and subsequent cell
restriction[,]” and maintained that Petitioner had failed to put forth a legally viable claim of that
nature. Prelim. Objs. ¶¶32-35. However, Respondents failed to make any mention of this putative
due process claim in their subsequent brief, so we consider that argument against the Amended
Petition to have been abandoned and, consequently, will not address its merits.
4
In ruling on preliminary objections, this Court accepts as true all
well-pled allegations of material fact, as well as all inferences
reasonably deducible from those facts. Key v. Pa. Dep’t of Corr.,
185 A.3d 421 (Pa. Cmwlth. 2018). However, this Court need not
accept unwarranted inferences, conclusions of law, argumentative
allegations, or expressions of opinion. Id. For preliminary objections
to be sustained, it must appear with certainty that the law will permit
no recovery. Id. Any doubt must be resolved in favor of the non-
moving party. Id.
Feliciano v. Pa. Dep’t of Corr., 250 A.3d 1269, 1274 (Pa. Cmwlth. 2021).
4
an appeal of the misconduct. Petitioner sought this Court’s review of the misconduct
charges, proceedings, and appeals process to argue that these actions were
retaliat[ory].”).
As for Respondents’ remaining argument, it contains two subparts. In the first
portion, Respondents object to Petitioner’s retaliation claim on the basis that he has
failed to plead facts showing that they were personally involved in the unlawful acts
that were allegedly perpetrated against him. Respondents’ Br. at 8-10. Respondents
admit that they “participated in the issuance and appeal of the misconduct/informal
resolution[,]” but maintain that this is insufficient to establish their “personal
involvement in the alleged wrongdoing[,]” because there is no proof they were
directly involved with or knew of Petitioner’s civil rights action in federal court. Id.
at 9-10.
We, however, disagree with how Respondents prefer to characterize the
nature of their involvement. It is well settled that “liability [in a Section 1983 action]
cannot be predicated on the operation of respondeat superior.” Bush v. Veach, 1
A.3d 981, 986 (Pa. Cmwlth. 2010) (citing Rode v. Dellarciprete, 845 F.2d 1195 (3d
Cir. 1988)). For liability to attach in such an action, the party who brought the lawsuit
must establish that each defendant had “personal involvement in the alleged
wrongs[.] . . . [P]ersonal involvement can be shown through allegations of personal
direction or actual knowledge and acquiescence, but the allegations must be made
with appropriate particularity.” Id. In this instance, the wrongdoing alleged by
Petitioner consists of the misconduct report’s issuance, with which Kennedy was
directly involved, and the consequent punishment that was levied against him by
Shawley. See Am. Pet. at 2-5, Exs. A-B. Petitioner’s averments therefore clearly
satisfy Section 1983’s personal involvement prerequisite.
5
In the second portion, Respondents argue that, even assuming that the direct
involvement requirement is satisfied, Petitioner has nevertheless failed to state a
viable retaliation claim. Respondents’ Br. at 10-12. An inmate can successfully
establish a viable First Amendment-based retaliation claim at this stage of litigation
by pleading facts in their lawsuit that facially establish that “[(1) they] engaged in
constitutionally protected conduct[; (2)] prison officials took adverse action[; (3)]
the protected conduct was a substantial or motivating factor for the action . . . [; and
(4)] the retaliatory action [did] not advance legitimate penological goals.” Yount v.
Dep’t of Corr., 966 A.2d 1115, 1120-21 (Pa. 2009). “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).
Regarding the first prong of this test,
[t]hough “confinement and the needs of the penal
institution impose limitations on constitutional rights,
including those derived from the First Amendment,” Jones
v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S.
119, 125 (1977), it is equally true that “incarceration does
not divest prisoners of all constitutional protections.”
Shaw v. Murphy, 532 U.S. 223, 228 (2001). Accordingly,
“a prison inmate retains those First Amendment rights that
are not inconsistent with his status as a prisoner or with the
legitimate penological objectives of the corrections
system.” Pell v. Procunier, 417 U.S. 817, 822 (1974).
Id. at 423. One of these retained rights is the freedom to access the courts, which
necessarily includes the ability to file lawsuits. Bush, 1 A.3d at 985. Petitioner has
thus satisfied the first prong, as his pursuit of a civil rights lawsuit in federal court
6
against SCI-Greene personnel was undoubtedly a form of constitutionally protected
conduct.
As for the second prong,
an “‘[a]dverse action,’ for purposes of evaluating an
inmate’s retaliation claim, is one which is ‘sufficient to
deter a person of ordinary firmness from exercising his
[constitutional rights.]’” Yount, 966 A.2d at 1121 (quoting
Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)).
Generally speaking, allegedly retaliatory conduct does not
constitute adverse action unless it would have more than a
de minimis impact upon such a person’s willingness to
exercise those rights. McKee v. Hart, 436 F.3d 165, 170
(3d Cir. 2006).[] . . . “Where a plaintiff advances a
colorable, but not necessarily incontrovertible, argument
he was subjected to adverse action, the issue is best
resolved by the fact-finder.” Yount, 966 A.2d at 1121
(citing Allah, 229 F.3d at 225).
Nunez v. Blough, 283 A.3d 413, 423 (Pa. Cmwlth. 2022) (footnote omitted). Here,
Petitioner was restricted to his cell for two days as punishment for the misconduct
citation. See Am. Pet. at 4-5, Ex. B. At first blush, this would appear to be a slap on
the wrist, so to speak, that would have a minimal impact upon the resolve possessed
by a person of ordinary firmness. However, this assessment becomes less ironclad
when factoring in the potential downstream effects of this punishment that were
mentioned by Petitioner. While corresponding with the DOC attorney who was
assigned to his federal civil rights action, Petitioner stated that other inmates at his
facility have been denied parole solely because of misconducts like his that were
informally handled. Id., Ex. F. Petitioner also asserted in that same correspondence
that the punishment he received and the underlying misconduct would be used by
SCI-Greene staff as justification for preventing him from continuing to work in the
correctional facility’s library. Id. Additionally, Petitioner avers in the body of the
Amended Petition itself that “[Respondents’] actions . . . have fraudulently tarnished
7
an otherwise nearly spotless prison record, which if left uncorrected, would
je[o]p[a]rdize [his] chances for commutation once [he] becomes eligible.” Id. at 5.
In other words, Petitioner has pled facts that characterize the punishment he received
as being of the type that could result in him being deprived of a valuable inmate
privilege that he currently possesses; has prevented others from being paroled; and
would potentially deprive him of the ability to have his carceral sentence commuted.
Such concerns would likely have more than a de minimis impact upon a person of
ordinary firmness’ willingness to exercise their constitutional rights. As such, we
conclude that Petitioner has put forth a colorable allegation that Respondents
subjected him to adverse action and, thus, that he has facially satisfied the second
prong’s requirements.
Turning to the third prong,
there are two methods by which an inmate can establish
that their constitutionally protected activity was a
substantial or motivating factor behind adverse action in
a retaliation case. First, the inmate can show that the
“timing of the alleged retaliatory action is unusually
suggestive of retaliatory motive.” Yount, 966 A.2d at
1122 (quoting Krouse v. American Sterilizer Co., 126
F.3d 494, 503 (3d Cir. 1997)) (cleaned up). Second, and
in the alternative, the inmate can set forth “a pattern of
antagonism coupled with timing that suggests a causal
link” between the adverse action and the inmate’s efforts
to exercise their constitutional rights. Watson v. Rozum,
834 F.3d 417, 422 (3d Cir. 2016). “Moreover, causation,
like any other fact, can be established from the evidence
gleaned from the record as a whole.” Id. at 424.
Nunez, 283 A.3d at 424-25. Here, Petitioner states that both the misconduct report
was issued and the resultant punishment was meted out while he was in the midst of
settlement negotiations with DOC attorneys regarding his federal court civil rights
action. Am. Pet. at 2, 4. Petitioner also maintains that Respondents did not present
8
him with the misconduct report until a week after Kennedy had issued it, and that he
was unaware of the report’s existence, or of the charges contained therein, until
Shawley provided him with a copy during the course of the informal resolution
proceeding. Id. at 2, 4, Ex. F. Given this, we conclude that Petitioner has pled facts
that facially establish a sufficient temporal nexus between his constitutionally
protected conduct and Respondents’ allegedly retaliatory behavior.
Finally, in the context of the fourth prong,
an inmate must, at minimum, aver facts from which an
inference could be drawn that the retaliatory actions did
not further a legitimate penological goal. Richardson v.
Wetzel, 74 A.3d 353, 358 (Pa. Cmwlth. 2013). “Claims of
retaliation fail if the alleged retaliatory conduct violations
were issued for the actual violation of a prison rule.”
Horan v. Newingham (Pa. Cmwlth., No. 2622 C.D. 2015,
filed Oct. 24, 2016), slip op. at 9, 2016 WL 6156221, at *5
(quoting Hartsfield v. Nichols, 511 F.3d 826, 829 (8th Cir.
2008)).[] “Thus, a defendant may successfully defend a
retaliatory discipline claim by showing some evidence the
inmate actually committed a rule violation.” Id.
Nunez, 283 A.3d at 426 (footnote omitted).
Petitioner has, at least at this stage of litigation, satisfied the fourth prong’s
requirements. He asserts that Kennedy issued the misconduct report but, without
explanation, failed to provide Petitioner with a copy of the report or even notify him
that he was facing disciplinary charges. Am. Pet. at 2, 4. He also maintains that
Shawley conducted the informal resolution proceeding by herself, in violation of
DOC policy and regulations; recognized that Petitioner had not actually committed
the infractions with which he had been charged; and nevertheless punished him. Id.
at 4-5. In addition, Petitioner identified Shawley in his communications with DOC
counsel as having previously been the personal assistant of a defendant in his federal
court civil rights action, while also stating that “[Shawley] was absolutely aware of
9
[his] lawsuits and grievances[, and] was personally named in a few of [his]
grievances[].” Id., Ex. F. Taken as true, these averments facially support a
conclusion that neither the misconduct itself nor the consequent punishment imposed
upon Petitioner furthered a legitimate penological goal.5
III. Conclusion
In accordance with the foregoing analysis, we overrule Respondents’
preliminary objections, in full, and direct them to answer the Amended Petition
within 30 days.
__________________________________
ELLEN CEISLER, Judge
5
Respondents assert in their brief that the misconduct report constitutes “some evidence”
that Petitioner committed the infractions with which he was charged and, thus, that Petitioner
cannot satisfy the fourth prong of the retaliation test. See Respondents’ Br. at 11-12. This argument
is entirely tautological and does not withstand even a cursory level of consideration. If the simple
fact that a misconduct had been issued was enough to defeat a retaliation claim, then it would be
impossible for an inmate to ever successfully pursue such a claim; the misconduct itself would
have to be treated as proof that its issuance, i.e., the allegedly retaliatory act, furthered a legitimate
peneological goal. We, for reasons that should be readily apparent, decline Respondents’ invitation
to effectively write misconduct-related retaliation claims out of existence.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vito A. Pelino, :
Petitioner :
:
v. : No. 221 M.D. 2022
:
Captain Kennedy and Tracey :
Shawley, :
Respondents :
ORDER
AND NOW, this 2nd day of November, 2023, it is hereby ordered that
Respondents Captain Kennedy and Tracey Shawley’s (collectively Respondents)
preliminary objections to Petitioner Vito A. Pelino’s Amended Petition for Review
Seeking Declaratory and Injunctive Relief” (Amended Petition) are OVERRULED.
It is FURTHER ORDERED that Respondents shall answer the Amended Petition
within 30 days.
__________________________________
ELLEN CEISLER, Judge