IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Fernando Nunez, Jr., :

Appellant :

: v. : No. 246 C.D. 2021
: Submitted: April 14, 2022 D. Blough, CO Crokus, E. Levadnuk, : CO Marks, Sargeant Poborsky, CO : Pyle, B. Reeseman, Freddy Walters :
BEFORE: HONORABLE ANNE E

. COVEY , Judge

HONORABLE ELLEN CEISLER, Judge HONORABLE LORI A. DUMAS , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE CEISLER FILED: July 12, 2022

Appellant Fernando Nunez, Jr., (Nunez), an inmate currently imprisoned at the State Correctional Institution (SCI) at Mahanoy, appeals from the Court of Common Pleas of Somerset County’s (Tria l Court) February 4, 2021 order. T hrough this order, the Trial Court denied Nunez’s request that he be allowed to proceed in forma pauperis in his lawsuit against Appellees D. B lough, CO Crokus, E. Levadnuk, CO Marks, S e rgeant Poborsky, CO Pyle, B. Reeseman, and Freddy
Walters 1 (collectively, Appellees) and, in addition, sua sponte deemed Nunez’s suit
to be frivolous and dismissed it on that basis. Upon review, w e vacate in part and

reverse in part

.

1 All of these individuals are identified by Nunez as being employees of the Department of Corrections who work at SCI

- Somerset. See Compl. ¶¶4

- 11. Appellees’ names, as presented in the caption, all reflect how those names were spelled in this matter’s dock eting statement. For clarity’s sake, subsequent references to Appellees’ ranks will use proper spelling for the relevant positions.2 I. Background
The relevant facts , as averred by Nunez in his Complaint and established through the Trial Court’s handling of this matter, are as follows. Prior to his
incarceration at SCI

- Mahanoy, Nunez was confined at SCI

- Somerset in t hat facility’s restricted housing unit (RHU) , where the incidents which gave rise to his lawsuit took place. Compl. ¶3. On January 24, 2019, shortly after 10 :2 0 a.m.,
Correctional Officer s Borstnar 2 and D. Blough informed another inmate, Joshua Lake, that a visitor had arrived to see him. Id. ¶12. While doing so, Borstnar said to Lake, “Who’s coming up to see you? Your fucking boyfriend?” Id. This exchange
pr ompted Nunez to swiftly inform Correctional Officer B. Reeseman that he wished
to file a third

- party complaint against both Blough and Borstnar pursuant to the Prison Rape Elimination Act of 2003 (PREA)

. 3 Id. ¶14. Reeseman acknowledged

2 Nunez did not name Officer Borstnar as a defendant in his Complaint.

3 34 U.S.C. §§ 30301

- 30309. According to the Departm ent of Corrections’ written policy, the Department

has zero tolerance for sexual abuse or sexual harassment of any individual under the supervision of the Department. . . . Anyone who engages in, fails to report, or knowingly condone s sexual abuse or

sexu al harassment of an inmate shall be subject to disciplinary action, up to and including termination, and may be subject to criminal prosecution. An inmate, reentrant, detainee, employee, contractor, or volunteer of the Department is subject to disciplinary action and/or sanctions, including possible dismissal and termination of contracts and/or services, if he/she is found to have engaged in sexual abuse or sexual harassment of an inmate.

. . . . The Department shall prohibit retaliation against an inmate w ho reports sexual abuse or sexual harassment, or staff member who reports sexual abuse or sexual harassment of an inmate, or who cooperates with sexual abuse or sexual harassment investigations. (Footnote continued on next page...)3

this , told Nunez that he would notify Sergeant Poborsky about Nunez’s request , and
then left the RHU

. Id. ¶¶15

- 16. Roughly 30 minutes later, Officer Reeseman returned to the RHU to escort another inmate, Kurt Dupree, to the RHU’s law library.
Id. ¶¶15, 17. Nunez told Officer Reeseman that he was scheduled to go to the library
as well , to which Reeseman responded , “Yeah. I know. But [Sergeant] Poborsky said you can’t go because [Lieutenant Freddy] Walters has to take a PREA statement from you.” Id. ¶¶18

- 19. Nunez protested that denying him access to the law library in response to his request to file a PREA complaint was retaliation and said he intended to file an internal prisoner grievance as a response. Id. ¶20. Officer Reeseman then accompani ed Dupree to the law library and le ft Nunez behind, leading Dupree to remark to Reeseman , “You know [Nunez] is gonna write y’all up for burning him for law library.” Id. ¶21. To this, Officer Reeseman responded, “Not if we write him up first. We [ ’ ] re alrea dy two steps ahead of him. [Nunez] thinks he can keep filing all these lawsuits and threatening us with grievances and expect [s] us not to do anything? He ain’t untouchable! Lawsuits and grievances don’t scare
me.” Id. ¶22. At approximately 11:45 a.m., Of ficers Blough and Reeseman took Nunez from his cell and placed him in the RHU’s “strip ca ge

. ” Id. ¶ 23. While in the strip cage, Nunez overheard Lieutenant Walters, Officer Borstnar, and Sergeant Poborsky discussing Nunez’s intent to file a PREA complaint. Id. ¶¶24

- 25. Lieutenant Walters
then entered the room in which the strip cage was located and said to Nunez,

You [’ r e] not helping yourself out by reporting a PREA [complaint] on my officers. It[’]s not gonna [sic] go

Department Policy Statement DC

- ADM 008 (April 22, 2019) , https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/dc

- adm

- 008.pdf ( last visited July 11, 2022).4 anywhere. Didn’ t you just see [the] PRC [ 4 ] yesterday? I read that [the PRC is] gonna [sic] allow you to do a step

down program here to get you off of RRL. [ 5 ] Well I’m gonna [sic] talk to Captain Brothers [ 6 ] about that. My officers don’t f

eel safe around you. You keep filing grievances and lawsuits on all my good officers. Id. ¶26

. After Lieutenant Walters finished speaking, Nunez gave his PREA complaint statement to Walters and then asked whether he could use the RHU’s law library. Id. ¶27 . Lieutenant Walters denied this request, stating: “[Sergeant] Poborsky already told you no. It was [your choice to either go to the] law library or give a PREA statement. You chose to make a PREA statement. So you burnt yourself as far as I’ m concerned. N ext time you should just mind your business.” Id. ¶ 28

. Officers Blough and Reeseman then took Nunez back to his cell ; along the way, Nunez called out that he intended to file grievances against Officer Blough, Sergeant

4 An RRL, or Restricted Release List, is a list of inmates who are not permitted to be housed in the general population. An inmate may be put on an RRL when they are deemed to “pose[] a threat to the secure operation of the [Department] facility [at which they are held] and where a transfer to another facility or jurisdi ction would not alleviate the security concern.” Department Policy Statement DC

- ADM 002 (April 18, 2022), https://www.cor.pa.gov/ About%20Us/Documents/DOC%20Policies/802%20Administrative%20Custody%20Procedures. pdf ( last visited July 11, 2022). This designa tion is subject to regular review, and an inmate can be removed from an RRL if the Department’s Executive Deputy Secretary for Institutional Operations approves such a move in writing. Id.

5 A PRC, or Program Review Committee, is “[a] committee [at a Department facility] consisting of three staff members that conduct Administrative Custody Hearings, periodic reviews, make decisions regarding continued confinement in the . . . RHU[] and/or Spe cial Management Unit (SMU) and hear all first level appeals of misconducts.” Department Policy Statement DC

ADM 001 (May 23, 2022) , available at https://www.cor.pa.gov/About%20Us/Documents/ DOC%20Policies/801%20 Inmate%20Discipline.pdf (last visited June 28 , 2022 ). A PRC is also vested with the ability to make recommendations regarding whether an inmate should be removed from an RRL. See DC

- ADM 002.

6 It is not exactly clear from the record who Captain Brothers i s, but it is implied through the Complaint that Brothers holds some sort of elevated supervisory role at SCI

- Somerset. See Compl. ¶59.5

Poborsky, and Officer Reeseman for preventing him from using the law library. Id. ¶ ¶29

- 31

. SCI

- Somerset’s staff then promptly initiated disciplinary action against
Nunez. Around 1:30 p.m., Sergeant Poborsky gave Nunez a misconduct citation , in which Poborsky falsely stated tha t Nunez had threatened an SCI

- Somerset employee. Id. ¶32. In response to this citation, Lieutenant Walters issue d an order
that suspended Nunez ’s ability to participate in outdoor recreational activities, take showers, or use the law library or phones for a period of seven days. Id. ¶¶33

- 34.
Nunez then filed a written grievance regarding the citation and consequent punishment , which was rejected by SCI

- Somerset’s grievance coordinator and was instead treated as a PREA complaint , and also reported his compla int orally to
another member of SCI

- Somerset’s staff

. Id. ¶ ¶ 37

- 38

. Nunez’ s insistence on filing grievances and PREA complaints subsequently
led to additional , negative reactions from the staff at SCI

- S omer set. On January 30, 2019, Nunez told Correctional Officer Pyle that he wished to file an inmate abuse claim against Officer Borstnar, due to unspecified verbal threats Officer Borstnar had made to Nunez through the RHU’s intercom system

. Id. ¶ ¶ 39

- 40 . Instead of helping Nunez, however, Officer P yle replied, “Sucks to be you!” Id. ¶ 41

. John H. Shearer, the RHU’s counselor, then recorded Nunez’s complaint regarding Officer
Borstnar. Id. ¶42. Later on, Officer Pyle refused to give Nunez a food tray w hile handing out lunch that day ; in Nunez ’s view , Pyle did this to punish him for grieving
Officer Borstnar. Id. ¶43. Nunez complained about Officer Pyle’s actions to Correctional Officer Marks, who responded, “If you withdraw that inmate abuse [complaint] you just filed [against Officer] Borstnar, I’ll give you two trays.” Id. ¶45. When Nunez declined Officer Marks’ offer, Marks replied that he would not6

give Nunez a tray either. Id. Nunez then filed a written grievance against Officer Pyle, which, like his original grievance regarding the misconduct citation , was treated as a PREA complaint, and also reported his complaint orally to Officer
Marks. Id. ¶¶44, 47. The following day, February 1, 2019, Officers Crokus, Marks, and Reeseman
entered the RHU to collect food trays that had been given to the RHU’s inmates at
breakfast time. Id. ¶49. When Officer Crokus approached Nunez’s cell, Nunez told
Crokus that he was worried that Officers Marks and Reeseman would retaliate against him for filing grievances against them a nd other SCI

- Somerset staffers and asked Crokus to file an incident report. Id. ¶ ¶50

- 51. 7 Officer Crokus replied that he would have to speak to Lieutenant E. Levadnuk about how Crokus should handle Nunez’s request and then asked Nunez whether he wanted to take a shower, to which Nunez replied in the affirmative. Id. ¶¶ 51

- 52. Officer Marks then approached Officer Crokus and said, “[Nunez] can’t shower. [Sergeant] Poborsky and [Lieutenant]
Levadnuk said he’s still on restricted movement.” Id. ¶53. When Offic er Crokus rejoined that Nunez’s punishment had ended the previous day, Officer Marks told him, “You need to talk to [Lieutenant] Levadnuk and [Sergeant] Poborsky. They said [Nunez] can’t shower. So I’m not letting him shower. Period.” Id. ¶¶53

- 54.
Officer Crokus then left the RHU to find his superiors and, after a brief interlude, returned to tell Nunez that “[Lieutenant] Levadnuk and [Sergeant] Poborsky told me not to let you shower. [They’re] pissed off about all those grievances and PREA [complaints] you filed.” Id. ¶55. Officer Crokus also stated L eva d n uk and Poborsky had told him to make up a reason for denying Nunez’s request for a shower. Id. ¶56. Nunez asked Officer Crokus whether he was going to file a written report regarding

7 Curiously, Nunez does not aver or imply prior to this point in his Complaint that he filed a grievance or PREA complain t against Officer Marks

.7

this retaliation again st Nunez, but Crokus replied, “I can’t. [Lieutenant] Levadnuk
said not to.” Id. ¶57. Nunez filed two more written grievances regarding what had
taken place on February 1, 2019, one of which was ultimately treated as a PREA complaint. Id. ¶58. In addition, Nunez lodged a written complaint with Captain Brothers, who passed the complaint along to a subordinate that undertook an investigation of Nunez’s allegations. Id. ¶59.
On January 22, 2021, Nunez filed a civil action pursuant to 42 U.S.C. § 1983 8 against Appellees in the Trial Court , alleging therein that Appellees had violated his
First Amendment 9 rights by retaliating against him “for engaging in constitutionally protected conduct.” Compl., Introduction. In addition, Nunez asked that the Trial
C ourt allow him to proceed in forma pauperis

. On February 4, 2021, the Trial Court denied Nunez’s request for in forma pauperis status and, in a sua sponte manner, dismissed Nunez’s Complaint pursuant to Pennsylvania Rule of Civil Procedure

8 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, s ubjects, 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.

9 The First Amendme nt provides: “ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Governmen t for a redress of grievance

. ” U.S. C ONST

. amend

. I. The rights secured by the First Amendment, which include prisoners’ ability to file administrative grievances and legal actions, are enforceable at the state level by virtue of the Fourteenth Amendment’s Due Process Clause. Bush v. Veach , 1 A.3d 981, 985 (Pa. Cmwlth. 2010); Yount v. Pa. Dep’t of Corr. , 966 A.2d 1115, 1121 (Pa. 2009); Meyer v. Grant , 486 U.S. 414, 420 (1988); Johnson v. Avery , 393 U.S. 483, 485 (1969); Gitlow v. N.Y. , 268 U.S. 652, 666 (19 25); see U.S. C ONST

. amend

. XIV , § 1 (stating, in relevant part: “ No State shall

. . . deprive any person of life, liberty, or property, without due process of law [.]”).8

240(j)(1) , on th e basis that Nunez’s legal claims were frivolous

. 10 In the accompanying opinion, the Trial Court explained that the Complaint’s dismissal was
warranted because Nunez had failed to articula te a viable retaliation claim. Trial Court Op., 2/4/21, at 5

- 13.
O n February 16, 2021, Nunez mailed a Motion for Reconsideration and a Motion for Leave to Amend Complaint Under Pa. R.C.P. 1033(a) (Motion to Amend) to the Trial Court

. See Nunez’s Br., Ex. 2; Reproduced Record (R.R.), App.
1. 11 Having received no response from the Trial Court, Nunez then appea led the Trial Court’s February 4 , 2021 dismiss al order via paperwork that reached our Court on
March 4 , 2021. 12 On March 5, 2021, the Trial Court ordered Nunez to file a

10 Pennsylvania Rule of Civil Procedure 240(j)(1) provide s that “[i] f, 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 a llegation of poverty is untrue or if it is satisfied that the action, proceeding or appeal is frivolous. ” Pa. R.Civ.P. 240(j)(1). “ A frivolous action or proceedin g has been defined as one that ‘ lacks an arguable basis either in law or in fact. ’ ” Id. , Note (quoting Neitzke v. Williams , 490 U.S. 319, 325 (1989)). “An action is frivolous under this provision, if, on its face, it does not set forth a valid cause of action.” Bailey v. Wakefield , 933 A.2d 1081, 1083

- 84 (Pa. Cmwlth. 2007).

11 Nunez has failed to c omply with the Rules of Appellate Procedure’s technical requirements regarding how a reproduced record’s pages must be numbered. See Pa. R.A.P. 2173 (“[T]he pages of . . . the reproduced record . . . shall be numbered separately in Arabic figures[,] .

. . thus 1, 2, 3, etc., followed . . . by a small a, thus 1a, 2a, 3a, etc.”). For simplicity’s sake, however, we will nevertheless cite to Nunez’s Reproduced Record by using the designations provided by Nunez.

12 Nunez ’s appeal is dated as having been submitte d on March 1, 2021, but there is no evidence within the record as currently constituted that clearly shows when he actually mailed his paperwork or handed it to prison officials. See Notice of Appeal at 1

- 4. “Under the prisoner mailbox rule, a prisoner’s p ro se appeal [or other filing] is deemed filed at the time it is given to prison officials or put in the prison mailbox.” Kittrell v. Watson , 88 A.3d 1091, 1096 (Pa. Cmwlth. 2014). Regardless , Nunez’s appeal to our Court was timely, as the appeal window did not close until March 8, 2021 , and we received his appeal paperwork before that date

. See Pa. R.A.P. 903(a) (Footnote continued on next page...)9

Statement of Errors Complained of on Ap peal (Statement of Errors) within 21 days, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). T he Trial Court’s prothonotary subsequently received both the Motion for Reconsideration and the
Motion to Amend on March 8, 2021. See Nunez’s Br., Ex. 2; R.R., App. 1. D espite this, and for reasons that are not clear to this Court, only the Motion for
Reconsideration was formally docketed by the prothonotary and ruled upon by the Trial Court, which denied the Motion for Reconsideration on March 11, 2021

. 13 On April 30, 2021, this Court received from Nunez an Application for
Remand to File Nunc Pro Tunc Statement of Errors Complained of and to Correct or Modify the Record (Remand Application ). Therein, Nunez requested that we
remand this matter to the Tr ial Court to allow him to file a Statement of Errors nunc pro tunc , due to what he claimed was SCI

- Somerset’s repeated failure to deliver mail sent to him by the Trial Court, including the Trial Court’s March 5, 2021 order directing him to file a Statement of Errors. Remand Application at 1

- 5. We granted Nunez’s Remand Application on July 29, 2021, and remanded this matter to the Trial Court with instructions that it “review evidence and determine whether [Nunez] should be permitted to file nunc pro tunc hi s Statement of Errors[.]” Commonwealth Court Order, 7/29/21, at 1. On August 5, 2021, the Trial Court granted Nunez leave
to file his Statement of Errors nunc pro tunc within 21 days. Trial Court Order,

(establishing general rule that a party has 30 days from an order’s entry to file an appeal); 1 Pa. C.S. § 1908 (when the last day of a f iling period falls on a weekend or holiday, that weekend or holiday is omitted from the calculation).

13 The copy of Nunez’s Motion to Amend that he attached to his appellate brief is stamped in a manner that clearly shows it was received and “filed for re cord” by the Trial Court’s prothonotary on March 8, 2021. See Nunez’s Br., Ex. 2. There are, however, no corresponding docket entries that establish that the prothonotary actually placed Nunez’s Motion to Amend on the case docket and the Motion to Amend wa s not included in the record that was transmitted to this Court by the Trial Court.10

8/5/21, at 1. Nunez complied with the Trial Court’s o rder by sending his Statement
of Errors to the Trial Court via mail on August 16, 2021.
II. Discussion On appeal, 14 Nunez puts forth what amounts to three distinct arguments, which we summarize and reorder as follows. First, the Trial Court erred and abused its discretion by concluding at this stage of the litigation that Nunez’s retaliation claim
was frivolous and dismissin g Nunez’s Complaint on that basis. Nunez’s Br. at 9

- 19. Second, the Trial Court erred by denying Nunez’s Motion for Reconsideration. Id. at 19. Finally, the Trial Court erred by failing to rule upon and grant Nunez’s Motion
to Amend. Id. at 12

- 14.
As to N unez’s first issue, an inmate must satisfy four requirements in order to set forth a valid prison retaliation claim. Specifically, they must show by a preponderance of the evidence that “[(1) they] engaged in consti tutionally protected conduct[; (2)] priso n 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). T he burden of proof remains upon the inmate at all times
in the context of a r etaliation claim of this nature. I d. at 1121. However , it is also the
case that a court must consider all factual allegations in an inmate’s complaint to be

true when de termining whether the legal claims therein are frivolous for purposes of Pennsylvania Rule of Civil Procedure 240(j)(1). McGriff v. Vidovich , 699 A.2d 797, 798 (Pa. Cmwlth. 1997). As such, a court can only dismiss a pro se action under this

14 “Appellate review of a decision dismissing an actio n pursuant to Pa. R.C[iv].P. [] 240(j)(1) is limited to determining whether [the] appellant’s constitutional rights hav e been violated and whether the trial court abused its discretion or committed an error of law.” Jones v. Doe , 126 A.3d 406, 408 n.3 (Pa. Cmwlth. 2015).11

provision when the causes of action articulated therein are not viable even on a facial
level and , thus , are unambiguously frivolous. Bailey , 933 A.2d at 1083

- 84.
Here , the Trial Court determine d that Nunez had “clearly” satisfied the first

pro ng of this test, but that his retaliation claim was frivolous because he had failed to surmount the bars established by the three other prongs. Trial Court Op., 2/4/21,
at 5

- 13. We agree with the Trial Court regarding the first prong. Though

“ confinement a nd the needs of the penal institution impose limitations on constitutional rights , including those derived from the First Amen dment,” Jones v.
North Carolina Prisoners’ Labor Union, Inc. , 433 U.S. 119, 125 (1977) , it is equally true that “ incarceration doe s 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 penologic al objectives of the corrections system. ” Pell v.
Procunier , 417 U.S. 817, 822 (1974) . Among this bundle of retained First Amendment rights is the ability to file complaints and grievances against a correctional facility’s employees. Brown v. Blaine , 833 A .2d 1166, 117 0

- 71 (Pa.
C mw lth . 2003)

. Nunez’s filing of such materials was thus clearly a form of constitutionally protected conduct. Even so, we conclude that the Trial Court’s reasoning regarding each of the remaining prongs was flawed and legally incorrect. With regard to the second prong, an “‘[a]dverse action,’ for purposes of evaluating an inmate’ s reta liation 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 impact12

upon such a person’s willin gness to exercise those rights. McKee v. Hart , 436 F.3d 165, 170 (3d Cir. 2006). 15 However, it is not the case “that repeated incidents of what might otherwise be trivial ‘harassment’ can never be actionable. The cumulative impact of retaliatory acts may b ecome actionable even though the actions would be
de minimis if considered in isolation.” Brennan v. Norton , 350 F.3d 399, 422 n.17 (3d Cir. 2003). “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)

. In this instance, the Trial Court offered a number of explanations for why it determined that Appellees had not taken adverse action against Nunez, specifically: (1) Nunez was not deterred by Appellees’ conduct from filing grievances, internal complaints, and the lawsuit that gave rise to this appeal; (2) persuasive and precedential case law establish that filing a n allegedly false misc onduct charge and
limited instances of preventing an inmate from accessing the prison law library, receiving a food tray, and showering each do not constitute examples of adverse
action s ; (3) Nunez could not use this action to challenge the misconduct charge ; and (4) neither the manner in which the misconduct charge was handled procedurally

n or the punishment Nunez received as a result of that charge were constitutionally suspect . Trial Court Op., 2/4/21, at 6

- 9.

15 [W]e recognize that we are not bound to follow the decisions of federal district and intermediate ap pellate courts on issues of federal law. . . . However, although decisions of the federal courts lower than the U.S. Supreme Court are not binding on Pennsylvania courts, they may be considered as persuasive authority with regard to federal questions. . . . Thus, when possible, it is appropriate for a Pennsylvania appellate court to follow the Third Circuit’s ruling on federal questions to which the U.S. Supreme Court has not yet provided a definitive answer.
W. Chester Area Sch. Dist. v. A.M. , 164 A.3d 620 , 630 (Pa. Cmwlth. 2017) (citations omitted).13

Each of these explanations, however, reveals stark errors in the Trial Court’s analysis. First, the operative question is not whether Nunez was deterred from exercising his constitutional rights, but whether a person of ordinary firmness would
have been deterred under the circumstan ces faced by Nunez. 16 Yount , 966 A.2d at
1121 ; see Mirabella v. Villard , 853 F.3d 641, 650 (3d Cir. 2017) (quoting Bennett v.
Hendrix , 423 F.3d 1247, 1252 (11th Cir. 2005) ) (“ There is good reason for such a
rule: we will not ‘reward’ government officials f or picking on unusually hardy speakers. At the same time, we recognize that government officials should not be liable when the plaintif

f is unreasonably weak

- willed .” )

. Second , while isolated examples of denying an inmate access to legal resources, a meal, recreation, or showers might be viewed by a person of ordinary firmness as nothing more than a
de minimis deterrent to exercising their constitutional rights, the context in which an action of this nature takes place must be considered before deeming such a denial to be of trivial effect

. Brennan , 350 F.3d at 422 n.17. Where , as here, an inmate alleges that prison officials imposed a series of punishments in close temporal proximity to the inmate’s actual exercise of their First Amendment righ ts, or their state d intent to do so, as well as that those officials also expressed or undertook some form of opposition to the inmate’s efforts, it follows that , at minimum, the inmate has raised a colorable, non

- frivolous claim that they were subject ed t o adverse action. Id. ; Yount , 966 A.2d at 1121. Finally, Nunez was not seeking to challenge the punishment he received as a result of the misconduct charge that Sergeant Poborsky lodged against him, or the process by which that charge was administratively

16 Inexplicably, the Trial Court recited the ordinary firmness standard in its February 4, 2021 opinion, but then completely ignored it by immediately shifting to a discussion of how Nunez himself was not person ally deterred from exercising his constitutional rights. See Trial Court Op., 2/4/21, at 6

- 7.14

adjudicated; rather, Nun ez’s position was simply that the charge and consequent punishment were retaliatory in nature and, thus, constituted unconstitutional ly adverse action. Nunez’s Br. at 17 ; cf. Allah , 229 F.3d at 224

- 25 ( quoting Thaddeus

X v. Blatter , 175 F.3d 378, 386 (6th Cir. 1999) (“ [G]overnment actions, which standing alone do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise
of a constitu tional right.” ) )

. Therefore, we conclude that Nunez has facially established that he was subjected to adverse action , in line with the second prong ’s requirements

. Moving on to the third prong, there are two methods by which an inmate can
establish that t heir constitutionally protected activity was a substantial or motiva ting
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 ad verse action and the inmate’s efforts to exercise their constitutional rights. Watson v. Rozum , 83 4 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. The Trial Court’s analysis regarding this prong is lacking as well. While the Trial Court acknowledged that there was “certainly a temporal proximity” between when Nunez vocalized his desire to file a PREA complaint and when Sergeant Poborsky iss ued a misconduct citation against him, it still ruled that Nunez had failed to meet the third prong’s requirements. Trial Court Op., 2/4/21, at 10

- 11. This was15

because, in the Trial Court’s view, Nunez’s averments did not articulate a sufficiently strong b asis for determining that Sergeant Poborsky’s issuance of that citation was in response to Nunez’s efforts to exercise his First Amendment rights.
Id. This conclusion, however, misses the forest for the trees. Taking Nunez’s
averments as true, as we must at this stage, several important points are both readily apparent and provide important context for Sergeant Poborsky’s behavior

. First, Sergeant Poborsky first became aware of Nunez’s desire to file a third

- party PREA complaint at some point between appr oximately 10:25 a.m. and 10:55 a.m. on January 24, 2019, and responded by immediately denying Nunez the ability to go to his scheduled appointment a t the RHU’s law library. Compl. ¶¶14

- 19. Nunez was then taken to the RHU’s “strip cage” room around 11:45 a. m., where he verbally presented his PREA complaint to Lieutenant Walters shortly thereafter and then asked if he could use the law library, a request which W alters denied. Id. ¶¶24

- 28. Nunez was then taken back to his cell and yelled while on his way there tha t he intended to file grievances against several RHU staffers, including Sergeant Poborsky, for preventing him from using the law library. Id. ¶¶29

- 31. Sergeant Poborsky then issued the misconduct citation against Nunez around 1:30 p.m., on
the basis t hat Nunez had threatened an SCI

- Somerset employee

. Id. ¶32. Thus, no more than approximately 90 minutes elapsed between Nunez’ s expression of intent
to file those grievance s and Sergeant Poborsky ’s issuance of the misconduct citation , during which time Nun ez had no other contact or communication with prison staff

. Given this, it is indisputable that Nunez has articulated a scenario that strong ly suggests , at least at a prima facie level, that the latter was done by Sergeant P oborsky
in retaliation for the former.16

Moreover , the Trial Court’s singular focus upon Sergeant Poborsky ’s actions on January 24, 2019, ignored the broader issue of how Nunez was treated by the other RHU staffers named in the Complaint. In doing so, the Trial Co urt specifically overlooked the following incidents. O n January 24, 2019, Officer Reeseman expressed his intent to preempt Nunez’s filing of a grievance against him by “writ[ing Nunez] up first”; that same day, Lieutenant Walters effectively threatened
Nun ez’s ability to be re moved from SCI

- Somerset’s RRL and to be returned to the facility’s general population, told him that his PREA complaint against Officer
Borstnar was not going to be handled properly, and made clear that his decision to deny Nunez’s req uest to use the law library was motivated in part by Nunez’s filing
of that complaint; subsequently, on January 30, 2019, Officer Pyle antagonized Nunez regarding Officer Bo rstnar’s verbal threats and denied Nunez food in response to Nunez’ s decision to fi le a PREA complaint against Borstnar ; shortly thereafter, Officer Marks effectively tried to bribe Nunez with additional meal trays in order to get Nunez to withdraw his PREA complaint against Officer Borstnar, but then refused to give Nunez any food when he declined Marks’ offer; and both
Officers Crokus and Marks prevented Nunez from taking a shower later that day , doing so under false pretenses , as directed by Lieutenant Levadnuk and Sergeant Poborsky , on account of Nunez’s grievances and PREA complaints

. See id. ¶¶17

- 23, 26

- 28, 32

- 33, 39

- 46, 49

- 57. Each of these actions suggests not just a strong likelihood that they were prompted by Nunez’s efforts to file grievances and PREA complaints , but that Nunez’s conduct wa s their but for cause

. Therefore, even if we

were to disregard how Sergeant Poborsky acted on January 24, 2019, and the temporal relationship between those acts and Nunez’s grievances, it remains that
Nunez articulated a mult itude of other prima facie vali d examples of adverse actions17

that were directly motivated by his constitutionally protected conduct. 17 Accordingly , we conclude that N unez has satisfied the third prong on a facial basis

. T urning to the fourth and final prong , an inmate must , a t 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. C mw lth

. 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. N ichols , 511 F.3d 826 , 829 (8th Cir. 2008)). 18 “Thus, a defendant may successfully defend a retaliatory discipline claim by showing some evidence the inmate actually committed a rule violation.” Id. Here, the Trial Court determined that Nunez had failed to plead facts that were sufficient to show that the charges underlying the misconduct citation were false and, in addition, that there was “ some evidence ” that the citation was in response to Nunez’s violation of SCI

- Somerset ’s internal regulations. Trial Court Op., 2/4/21, at
11

- 13. From the Trial Court’s perspective, Nunez’s allegations regarding the misconduct citation’s falsity were “conclusory” and his vocalizing of his intention to file grievances against several RHU staffers was a threat that c onstituted “an actual prison violation [sic]” that justified the misconduct citation. Id. at 12

- 13. As

17 It is also notable that members of the RHU’s staff considered Nunez to be a troublemaker of sorts even before the events that gave rise to this suit occurred, b ecause he regularly filed grievances and lawsuits against them. See Compl. ¶¶21

- 22, 25

- 26. This generally negative perception of Nunez places the RHU staffers’ actions toward him in an even more concerning light.

18 Unreported Commonwealth Court opinions issued after January 15, 2008, may be cited for their persuasive value. See Internal Operating Proced ures of the Commonwealth Court Section 414(a), 210 Pa. Code § 69.414(a).18

such, the Trial Court concluded that Nunez would be unable to establish that the
citation had not been issued i n furtherance of a legitimate penological goal. Id. In doing so, however, the Trial Court made multiple mistake s. First, the Trial
Court erroneously determined that Nunez’s allegations were conclusory
, because it focused too narrowly on his claims that the misconduct citation was issued under
f alse pretenses and was retaliatory in nature . As already discussed , Nunez has averred facts in his Complaint that es tablished a facially plausible argument that Sergeant Poborsky’s decision to cite him for threatening an SCI

- Somerset employee was pretextua l in nature . Second, the Trial Court’s conclusion that the misconduct citation was justified on the basis of Nunez’s so

- called threat to grieve several RHU staffers was manifestly incorrect. A s we have already mentioned, while carceral confinement brings with it certain limitations on inmates’ constitutional rights, it does not follow that prisoners are stripped of all such rights by virtue of their
incarceration. Jones , 433 U.S. at 125; Pell , 417 U.S. at 822; Shaw , 532 U.S. at 228

. In line with this, and despite their imprisonment, inmates have a First Amendment

protected right to grieve a correctional facility’s employees

. Brown , 833 A.2d at 117 0

- 71. To hold, as the Trial Court did here, that an inmate ’s expressed intent to
fi le such grievances constitutes a threat for w hich the inmate can be punished would
make a mockery of the underlying, constitutionally protected right to actually do

so

. 19 Finally, even if we theoretically agreed with the Trial Court’s analysis of the
misco nduct citation, we would be unable to ignore, as the Trial Court did, the aforementioned litany of other retaliatory acts perpetrated against Nunez by RHU

19 This is not to say that an inmate cannot be punished if their express ed intent to grieve a prison employee is coupled with some form of physical or verbal threat, or with another kind of impermissible behavior

. What remains the case, though, is that punishing an inmate solely because they said th ey were going to file a grievance runs afoul of the First Amendment.19

staffers that, based upon that facts averre d by Nunez in his Complaint, do not appear
to have further ed a legitimate penological goal. Consequently, we conclude that
N unez has facially fulfilled the fourth prong’s prerequisites

. III. Conclusion In accordance with the foregoing analysis, we hold that Nunez’s retaliation claim was not frivolous, as well as that the Trial Court erred by concluding otherwise and dismissing Nunez’s Complaint pursuant to Pennsylvania Rule of Civil Procedure 240(j)(1). Accordingly, we reverse the Trial Court’s February 4, 2021
order in part , regarding this dismissal, vaca te it in part , as to the Trial Court’s denial
of Nunez’s request to proceed in forma pauperis , and remand this matter to the Trial Court for further proceedings. In addition, we direct the Trial Court on remand to ensure that Nunez’s Motion to Amend is pro perly docketed and to rule upon both
that Motion and the merits of Nunez’s in forma pauperis request within 30 days. 20

____________________________ ELLEN CEISLER, Judge

20 Nunez’s remaining argument , i.e. , that the Trial Court erroneously denied his Motion for Reconsideration , has been rendered moot due to our disposition of this matter . We note, however, that a lower court’s denial of a motion for reconsideration that pertains to a final order is not reviewable on appeal. Thorn v. Newman , 538 A.2d 105, 108 (Pa. Cmwlth. 1988).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Fernando Nunez, Jr., :

Appellant :

: v. : No. 246 C.D. 2021
: D. Blough, CO Crokus, E. Levadnuk, : CO Marks, Sargeant Poborsky, CO : Pyle, B. Reeseman, Freddy Walters :

O R D E R AND NOW, this 12 th day of July, 20 22 , it is hereby ORDERED:
1. The Court of Common Pleas of Somerset County’s (Trial Court) February 4, 2021 order, through which the Trial Court dismissed Appellant Fernando Nunez, Jr.’s (Nunez) lawsuit against Appellees D. Bl ough, CO Crokus, E. Levadnuk, CO Marks, Sargeant Poborsky, CO Pyle, B. Reeseman, and Freddy Walters as frivolous pursuant to Pennsylvania Rule of Civil Procedure 240(j)(1), is REVERSED IN PART, as to this dismissal, and VACATED IN PART, as to the Trial Cou rt’s denial of Nunez’s request for in forma pauperis status ; 2. This matter is REMANDED to the Trial Court for further proceedings;
3. On remand, the Trial Court shall ensure that Nunez’s Motion for Leave to Amend Complaint Under Pa. R.C.P. 1033(a) is properly d ocketed and shall rule upon both that Motion and the merits of Nunez’s in forma pauperis request within 30 days. Jurisdiction relinquished.

____________________________ ELLEN CEISLER, Judge