IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alfonso Percy Pew, :

Appellant :

:

v. :

:

Timothy Miller, David Radziewics, :

Lt. Lytle, Deputy Houser, Deputy :

Rivello, Capt. Andrews, Supt. Garman, :

Lt. Sherman, John Doe 1, CO 1, and : No. 27 C.D. 2022

John Doe 2, CO 1 : Submitted: November 4, 2022

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge 

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: March 7, 2023

Alfonso Percy Pew (Pew) appeals, pro se, from the Centre County 

Common Pleas Court’s (trial court) December 21, 2021 order that overruled in part 

and sustained in part Preliminary Objections to Pew’s Complaint filed by Prison 

Rape Elimination Act (PREA)1compliance manager Timothy Miller (Miller), PREA 

coordinator David Radziewics (Radziewics), Lieutenant Lytle, Deputy Houser, 

Deputy Rivello, Captain Andrews, Superintendent Garman, Lieutenant Sherman, 

Corrections Officer 1 (CO1) John Doe 1, and CO1 John Doe 2 (collectively, 

1

34 U.S.C. §§ 30301-30309. “Pursuant to Department [of Corrections (Department)] 

Policy Statement DC-ADM 008, effective April 22, 2019, the Department has implemented PREA 

standards and practices to prevent, detect, and respond to inmate reports of sexual abuse and 

harassment. See []www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/dc-adm-008.pdf 

(last visited Sept[.] 29, 2021).” Winton v. Pa. Dep’t of Corr., 263 A.3d 1240, 1242 n.1 (Pa. 

Cmwlth. 2021).
2

Appellees), and dismissed Pew’s Complaint.2 Pew presents four issues for this 

Court’s review: whether the trial court erred by concluding that Pew failed to state 

valid causes of action under: (1) the Eighth Amendment to the United States (U.S.)

Constitution (Eighth Amendment);

3

(2) the First Amendment to the U.S. 

Constitution (First Amendment);

4

(3) article I, sections 13, 20, and 26 of the 

Pennsylvania Constitution;

5

and (4) the Americans with Disabilities Act (ADA).

6

 

After review, this Court affirms.

 

Background7

Pew is an inmate currently incarcerated at the State Correctional 

Institution (SCI) at Phoenix, who has been diagnosed with a serious mental illness

(SMI) and is a D Roster inmate.

8

 See Original Record (O.R.) Item 1 (Complaint) ¶¶

2, 23. Appellees are Department of Corrections (Department) employees and/or 

prison officials at SCI-Rockview who were generally responsible for Pew’s care and 

are specifically responsible for protecting him from sexual abuse. See Complaint ¶¶ 

3-10. 

In November 2020, while Pew was incarcerated at SCI-Rockview, 

PREA manager Miller and PREA coordinator Radziewics were aware that, in 

October 2020, Pew had reported to the Pennsylvania Office of Inspector General 

2 Appellees’ full names are not included in the record before this Court.

3 U.S. CONST. amend. VIII (“Excessive bail shall not be required, nor excessive fines 

imposed, nor cruel and unusual punishments inflicted.”).

4 U.S. CONST. amend. I (“Congress shall make no law . . . abridging . . . the right of the 

people . . . to petition the [g]overnment for a redress of grievance.”).

5

PA. CONST. art. I, §§ 13, 20, 26.

6

42 U.S.C. §§ 12101-12213.

7 The facts are as alleged in the Complaint.

8 D Roster inmates are individuals who are “diagnosed with a serious mental illness, 

intellectual disability, [or] credible functional impairment, or have been adjudicated as guilty but 

mentally ill.” www.cor.pa.gov/Documents/DOC-Recommendation-for-Closure-of-SCIRetreat.pdf (last visited Mar. 6, 2023). 
3

that SCI-Rockview prison officials were covering up PREA complaints and bribing 

indigent inmates to sign off on complaints. See Complaint ¶¶ 19-20; see also

Complaint Exs. F, G. On December 24, 2020, Pew filed an Inmate Request to Staff 

Member claiming PREA retaliation on December 17 and 23, 2020. See Complaint 

Ex. G. In a December 30, 2020 response, Pew was notified that the form had been 

forwarded to security. See id. 

In January 2021, CO1 John Doe 1 and CO1 John Doe 2 circulated 

rumors among SCI-Rockview inmates and other corrections officers that Pew “rapes 

little kids” and is a “child molester.” Complaint ¶ 11; see also Complaint ¶ 12. On 

January 29, 2021, Pew filed Grievance No. 913568 lodging a PREA complaint 

alleging sexual harassment and seeking a cell change and protection in the form of 

“hand[-]held cameras for all escorts [to meals, showers, and groups,] due to [his] life 

being in danger.” See Complaint ¶ 15; see also Complaint ¶¶ 13, 25 and Complaint 

Exs. A-C, G. In particular, Pew felt he was in imminent danger of being attacked 

by the inmate in an adjoining cell. See Complaint ¶ 25. Appellees failed to 

investigate Pew’s PREA complaints, and denied his protection requests. See

Complaint ¶¶ 13-17, 25; see also Complaint Ex. D. On January 31, 2021, Pew filed 

Grievance No. 913042, making a PREA retaliation complaint, claiming that 

Appellees retaliated against him by denying him weekly use of the email kiosk and 

withholding his personal television. See Complaint ¶¶ 18-24; see also Complaint 

Exs. E-I.

On May 11, 2021, Pew filed an Inmate Request to Staff Member 

seeking a response to Grievance No. 913568, and mentioned his concern for his 

safety. See Complaint ¶ 17; see also Complaint Ex. D. On May 14, 2021, SCIRockview staff responded: “This allegation was a single incident of sexual 

harassment that has been tracked but not investigated.” Complaint Ex. D. Also on 

May 11, 2021, Pew filed an Inmate Request to Staff Member seeking a response to 
4

Grievance No. 913042, again referring to his fear for his safety. See Complaint ¶ 

22; see also Complaint Ex. I. On May 14, 2021, SCI-Rockview staff answered that 

Pew’s “allegations of retaliation were investigated . . . and were deemed to be 

unfounded.” Complaint Ex. I. 

On June 3, 2021, Pew filed the Complaint in the trial court (Docket No. 

2021-1264) pursuant to Section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983 

(Section 1983),9seeking declaratory and injunctive relief and compensatory and 

punitive damages on the basis that Appellees violated his rights under the First, 

Eighth, and Fourteenth Amendments (Fourteenth Amendment) to the U.S.

Constitution,

10 article I, sections 13, 20, and 26 of the Pennsylvania Constitution,

and the ADA by refusing to investigate his sexual harassment claims and by 

retaliating against him for making those claims. See Complaint at 9-10. Also on 

June 3, 2021, Pew filed an Application for Leave to Proceed In Forma Pauperis, 

which the trial court granted. See O.R. Items 2, 4.

11

9 Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, 

custom, or usage, of any [s]tate . . . subjects, or causes to be 

subjected, any citizen of the [U.S.] or other person within the 

jurisdiction thereof to the deprivation of any rights, privileges, or 

immunities secured by the Constitution and laws, shall be liable to 

the party injured in an action at law, suit in equity, or other proper 

proceeding for redress[.]

42 U.S.C. § 1983. 

10 U.S.CONST. amend. XIV, § 1 (The Due Process Clause provides: “No [s]tate . . . shall . . .

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

11 Pew also filed a sworn Affidavit of Imminent Danger of Serious Bodily Physical Injury 

(Affidavit). See O.R. Item 1. The Affidavit and related exhibits reflect Pew’s reporting of a May 

15, 2021 “assault and battery and sex crime against [him].” O.R. Item 1 at 21; see also O.R. Item 

1 at 20, 22-42. 

Notably, although Pew’s Application for Leave to Proceed In Forma Pauperis reflects that 

it is related to Docket No. 2021-1264, the Affidavit listed Docket No. 2021-1260 (Pew v. Timothy 

Miller, C.C.P.M., President Judge Pamela A. Ruest). The trial court nevertheless accepted the 

Affidavit as part of Pew’s June 3, 2021 Complaint filing at Docket No. 2021-1264 (“42 U.S.C. [§] 

1983 CIVIL RIGHTS COMPLAINT FOR INJUNCTIVE RELIEF, MONTARY [sic] DAMAGES AND 
5

On July 14, 2021, Appellees filed the Preliminary Objections, raising 

the following demurrers: (1) the Complaint should be dismissed under the three 

strikes provision in Section 6602(f)(1) of the statute commonly known as the Prison 

Litigation Reform Act, 42 Pa.C.S. § 6602(f)(1) (three strikes rule) (First Preliminary 

Objection); (2) Pew failed to allege sufficient facts to establish Appellees’ personal 

involvement in the alleged wrongdoing (Second Preliminary Objection); (3) Pew 

failed to state a valid claim for injunctive relief (Third Preliminary Objection); (4) 

Pew failed to state a valid Eighth Amendment claim (Fourth Preliminary Objection); 

(5) Pew failed to state a valid First Amendment retaliation claim (Fifth Preliminary 

Objection); (6) Pew failed to state a valid Pennsylvania Constitution violation claim 

(Sixth Preliminary Objection); and (7) Pew failed to state a valid ADA claim 

(Seventh Preliminary Objection). See O.R. Item 5 (Preliminary Objections). On 

August 4, 2021, Pew opposed the Preliminary Objections. See O.R. Item 7. 

On December 21, 2021, the trial court overruled the First, Second, and 

Third Preliminary Objections, concluding that Pew’s Complaint did not violate the 

three strikes rule, and Pew alleged sufficient facts to establish Appellees’ personal 

involvement in the alleged wrongdoing and for injunctive relief. See O.R. Item 13 

(Trial Ct. Op.). The trial court sustained the Fourth, Fifth, Sixth, and Seventh 

Preliminary Objections. See id. Because the trial court sustained the Preliminary 

Objections to Pew’s substantive claims, it dismissed Pew’s Complaint on the basis 

that “[Pew] fail[ed] to state any viable claim of a federal constitutional or statutory 

DECLARATORY JUDGMENT WITH SIGNED SWORN NOTARIZED AFFIDAVIT OF IMMINENT DANGER OF 

SERIOUS BODILY PHYSICAL HARM AND DOCUMENTS [sic] EXHIBITS DISPLAYING ON[]GOING SEXUAL 

AND PHYSICAL IMMINENT DANGER OF SERIOUS BODILY HARM FILED.” O.R. Item 1 at 1.); see also

O.R. Item 19. However, Pew did not reference or incorporate by reference the May 15, 2021 

incident or related documentation in the Complaint. Accordingly, the trial court concluded in its 

December 21, 2021 opinion: “These allegations [of sexual assault and abuse on May 15, 2021,] do 

not appear in [Pew’s] Complaint, and it is unclear what, if any, connection they might have to 

[Appellees’] alleged conduct as set forth in the Complaint.” Trial Ct. Op. at 6 n.1.
6

violation that could serve as the predicate for a [Section] 1983 claim in any event.”12 

See id. at 3. On January 6, 2022, Pew appealed to this Court.13

On January 26, 2022, the trial court ordered Pew to file a concise 

statement of errors complained of on appeal pursuant to Pennsylvania Rule of

Appellate Procedure (Rule) 1925(b), which he did on February 10, 2022. See O.R. 

Items 15, 16. On February 14, 2022, the trial court filed a Statement pursuant to 

Rule 1925(a), adopting its December 21, 2021 opinion. See O.R. Item 17.

Discussion

“The question presented in a demurrer is whether, on the 

facts averred, the law indicates with certainty that no 

recovery is possible. In reviewing a [trial] 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). Thus, we will affirm a 

trial court’s order sustaining preliminary objections and 

dismissal of a complaint “only in cases that are clear and 

free from doubt that the law will not permit recovery” by 

the appellant. Cap. City Lodge No. 12, Fraternal Ord. of

Police v. City of Harrisburg, . . . 588 A.2d 584, 586-87 

([Pa. Cmwlth.] 1991). In ruling on preliminary objections 

in the nature of a demurrer, this Court accepts as true all 

well-pleaded facts in the complaint and draws all 

inferences reasonably deducible therefrom in favor of the 

nonmoving party. Stone & Edwards Ins. Agency, Inc. v.

Dep’t of Ins., . . . 616 A.2d 1060, 1063 ([Pa. Cmwlth.] 

1992). However, we “need not accept as true conclusions 

of law, unwarranted inferences from facts, argumentative 

allegations, or expressions of opinion.” Id. . . . And, in 

12 In addition, “Section 1983 actions against state officials in their official capacity that 

seek only monetary damages are [] barred, as such a suit against a state official in his official 

capacity constitutes [a] suit against the state itself.” Watkins v. Pa. Dep’t of Corr., 196 A.3d 272, 

275 (Pa. Cmwlth. 2018) (citations omitted).

13 “Our review of a trial court’s order sustaining preliminary objections and dismissing a 

complaint is limited to determining whether the trial court abused its discretion or committed an 

error of law.” Ward v. Potteiger, 142 A.3d 139, 142 n.6 (Pa. Cmwlth. 2016) (quoting Pub. Advoc.

v. Brunwasser, 22 A.3d 261, 266 n.5 (Pa. Cmwlth. 2011)).
7

the face of doubt, our resolution should be in favor of 

reversing the grant of the demurrer.

Vasquez v. Berks Cnty., 279 A.3d 59, 75-76 (Pa. Cmwlth. 2022). 

“When ruling on a demurrer, a court must confine its analysis to the 

complaint.” Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010). “Thus, the 

court may determine only whether, on the basis of the plaintiff’s allegations, he or 

she possesses a cause of action recognized at law.” Fraternal Ord. of Police Lodge

No. 5, by McNesby v. City of Phila., 267 A.3d 531, 541 (Pa. Cmwlth. 2021). 

“[D]ocuments attached as exhibits [and] documents referenced in the complaint, as 

well as facts already of record[,] may also be considered.” Id. at 542.

Pew first argues that the trial court erred by concluding that he failed 

to state a valid cause of action under the Eighth Amendment.

14

Initially, “[alt]hough ‘confinement and the needs of the penal institution 

impose limitations on constitutional rights . . . ,’ Jones v. [N.C.] Prisoners’ Lab[.]

Union, Inc., 433 U.S. 119, 125 . . . (1977), . . . ‘incarceration does not divest prisoners 

of all constitutional protections.’ Shaw v. Murphy, 532 U.S. 223, 228 . . . (2001).” 

Nunez v. Blough, 283 A.3d 413, 423 (Pa. Cmwlth. 2022). “The Eighth Amendment, 

which applies to the [s]tates through the Due Process Clause of the Fourteenth 

14 Pew also broadly referenced in his Complaint that Appellees violated article I, section 

13 of the Pennsylvania Constitution, see Complaint at 9, which similarly provides: “Excessive bail 

shall not be required, nor excessive fines imposed, nor cruel punishments inflicted.” PA. CONST.

art. I, § 13. 

“Pennsylvania courts have repeatedly and unanimously held that the

Pennsylvania prohibition against cruel and unusual punishment is

coextensive with the Eighth and Fourteenth Amendments . . . , and

that the Pennsylvania Constitution affords no broader protection

against excessive sentences than that provided by the Eighth

Amendment . . . .” Commonwealth v. Elia, 83 A.3d 254, 267 (Pa.

Super. 2013) (citation and internal quotation marks omitted). 

Accordingly, we only need to review [Pew’s] claim under the Eighth 

Amendment.

Commonwealth v. Ishankulov, 275 A.3d 498, 505 (Pa. Super. 2022).
8

Amendment, prohibits the infliction of ‘cruel and unusual punishments’ on those 

convicted of crimes.” Wilson v. Seiter, 501 U.S. 294, 296-97 (1991) (citation 

omitted). The Eighth Amendment not only restrains prison officials from using 

excessive force against prisoners, but “imposes duties on these officials . . . [to]

provide humane conditions of confinement[,] . . . [i.e., they] must ensure that inmates 

receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable 

measures to guarantee the safety of the inmates[.]’ Hudson v. Palmer, 468 U.S. 517, 

526-[]27 . . . (1984).” Farmer v. Brennan, 511 U.S. 825, 832 (1994). 

In Farmer, the U.S. Supreme Court observed:

[A] prison official violates the Eighth Amendment only 

when two requirements are met. First, the deprivation 

alleged must be, objectively, “sufficiently serious,”

Wilson, . . . 501 U.S.[] at 298 . . . ; see also Hudson v. 

McMillian, . . . 503 U.S.[ 1,] 5 . . . [(1992)]; a prison 

official’s act or omission must result in the denial of “the 

minimal civilized measure of life’s necessities,” Rhodes[

v. Chapman] . . . , 452 U.S.[ 337,] 347 . . . [(1981)]. For a 

claim (like the one here) based on a failure to prevent 

harm, the inmate must show that he is incarcerated 

under conditions posing a substantial risk of serious 

harm. See Helling [v. McKinney] . . . , 509 U.S.[ 25,] 35 

[(1993)] . . . . 

The second requirement follows from the principle that 

“only the unnecessary and wanton infliction of pain 

implicates the Eighth Amendment.” Wilson, 501 U.S.[] at 

297 . . . (internal quotation marks, emphasis, and citations 

omitted). To violate the [Eighth Amendment], a prison 

official must have a “sufficiently culpable state of mind.” 

[Id.]; see also id.[] at 302-[]03 . . . [;] Hudson v. McMillian

. . . , 503 U.S.[] at 8 . . . . In prison-conditions cases that 

state of mind is one of “deliberate indifference” to 

inmate health or safety, Wilson, . . . 501 U.S.[] at 302-

[]03 . . . [;]see also Helling . . . ; Hudson v. McMillian . . . ;

Estelle [v. Gamble], . . . 429 U.S.[ 97,] 106 [(1976).] 

Id. at 834 (emphasis added; footnote omitted).
9

A substantial risk of serious harm is one in which the risk 

is “so great that it is almost certain to materialize if nothing 

is done.” Delgado v. Stegall, 367 F.3d 668, 672 (7th Cir. 

2004). “Vague threats communicating a general risk of

violence are not sufficiently substantial under the 

standard.” Willie v. Pugh[] (E.D. Wis., No. 13-cv-1024-

pp, filed Aug[.] 16, 2016), slip op. at 6. Similarly, a prison

official’s mere knowledge of vague threats against an 

inmate is not sufficient to make it clear to the official that 

such information presents a substantial risk of serious 

harm to the prisoner. [See] Armstrong v. Price, 190 F[.]

App’x[] 350 . . . (5th Cir. 2006) (unpublished); see [also] 

Klebanowski v. Sheahan, 540 F.3d 633, 639 (7th Cir. 

2008) (“The facts of this case make clear our reason for 

requiring more than general allegations of fear . . . .”).

Horan v. Newingham (Pa. Cmwlth. No. 2622 C.D. 2015, filed Oct. 24, 2016), slip 

op. at 16-17.15

[W]hether a prison official was deliberately indifferent is 

[] subjective [], requiring the demonstration of a state of 

mind akin to criminal recklessness, and . . . a prisoner must 

establish that: (i) the prison official knew of and 

disregarded an excessive risk to inmate health or safety;

(ii) the prison official was aware of facts from which an 

inference could be drawn that a substantial risk of serious 

harm exists; and (iii) the prison official drew the inference. 

[Farmer,] 511 U.S. at 837, 840 . . . . The [Farmer] Court 

also emphasized that the duty of a prison official under the 

Eighth Amendment is to ensure reasonable safety and that 

prison officials who respond reasonably to the alleged risk 

cannot be found liable under the Eighth Amendment, even 

where the measures taken by prison officials failed to 

abate the substantial risk. Id. at 844-[]45[.] 

Tindell v. Dep’t of Corr., 87 A.3d 1029, 1039-40 (Pa. Cmwlth. 2014) (footnote 

omitted).

15 Unreported decisions of this Court issued after January 15, 2008, may be cited as 

persuasive authority pursuant to Section 414(a) of this Court’s Internal Operating Procedures. 210 

Pa. Code § 69.414(a). The unreported decisions herein are cited for their persuasive value.
10

Here, Pew alleged in the Complaint that Appellees failed to take 

measures to protect his safety, despite that he “[wa]s being subjected to discrimatory 

[sic] cruel punishment,” Complaint ¶ 2; was “in imminent danger of physical harm,” 

Complaint ¶ 11; was at risk of serious harm, see Complaint ¶ 15 and Complaint at 

6; and was “in danger of imminent attack” at the hands of the adjoining cell 

occupant. Complaint ¶ 25. Pew did not allege that he had been threatened, nor did 

he state facts demonstrating a “risk [] so great that it [wa]s almost certain to 

materialize if [Appellees did not protect him].”

16

 Horan, slip op. at 16 (quoting 

Delgado, 367 F.3d at 672). Rather, he pled “[v]ague threats communicating a 

general risk of violence” that “are not sufficiently substantial under the [substantial 

risk of serious harm] standard.” Horan, slip op. at 16-17 (quoting Willie, slip op. at 

6).

This Court acknowledges that “[t]he allegations of a pro se complainant

are held to a less stringent standard than that applied to pleadings filed by attorneys[, 

and i]f a fair reading of the complaint shows that the complainant has pleaded facts 

16 This Court may not consider Pew’s Affidavit and related exhibits, because neither the 

trial court nor this Court may consider facts and documents not included in the Complaint. See 

Torres. Those documents were filed relative to a different case on the trial court’s docket. 

Although the trial court “may take judicial notice on its own[,]” or “if a party requests it[,]” 

Pennsylvania Rule of Evidence 201(c), “a court may not ordinarily take judicial notice in one case 

of the records of another case, whether in another court or its own, even though the contents of 

those records may be known to the court.” Styers v. Bedford Grange Mut. Ins. Co., 900 A.2d 895, 

899 (Pa. Super. 2006) (quoting 220 P’ship v. Phila. Elec. Co., 650 A.2d 1094, 1097 (Pa. Super. 

1994)). A limited exception to that general rule allows “a court to take notice of a fact which the 

parties have admitted or which is incorporated into the complaint by reference to a prior court 

action.” Guarrasi v. Scott, 25 A.3d 394, 398 n.3 (Pa. Cmwlth. 2011) (quoting Styers, 900 A.2d at

899). However, because Pew did not allege in the Complaint, nor in the documents attached 

thereto or referenced therein, that he was physically assaulted on May 15, 2021, and Appellees 

have not admitted to that claim, the limited exception does not apply. Therefore, this Court may 

not take judicial notice of the Affidavit and/or its attachments. 

Even if this Court determined that the Affidavit supported that Pew was at substantial risk 

of serious harm, the Complaint does not specify if or how Appellees acted with deliberate 

indifference (i.e., that Appellees drew the inference that Pew was at substantial risk of serious 

harm, but disregarded it).
11

that may entitle him to relief, the preliminary objections will be overruled.” Danysh

v. Dep’t of Corr., 845 A.2d 260, 262-63 (Pa. Cmwlth. 2004), aff’d, 881 A.2d 1263 

(Pa. 2005) (citation omitted). Further, Pew need not allege that he has been harmed. 

See Helling, 509 U.S. at 33 (“[T]he Eighth Amendment protects against future harm 

to inmates[.]”); see also Horan, slip op. at 16 (“Although [an inmate] did not sustain 

any physical contact or bodily injury, he . . . need not wait until an actual assault 

takes place to gain protection on a failure to protect theory. See Riley v. Jeffes, 777 

F.2d 143 . . . (3d Cir. 1985).”). Moreover, this Court does not take lightly Pew’s 

claims that CO1 John Doe 1 and CO1 John Doe 2 spread rumors that Pew “rapes 

little kids” and is a “child molester[,]” Complaint ¶ 11; see also Complaint ¶ 12, or 

that Pew felt unsafe.

However, without any additional detail and context, 

[Pew’s] cursory and vague allegations of [perceived]

threats are insufficient to demonstrate that [Pew] faced 

a substantial risk of serious harm . . . . See also 

Klebanowski, 540 F.3d at 639-40 (concluding that a 

prisoner failed to prove that the defendants were aware of 

a particular threat where the prisoner did not provide

sufficient detail regarding the threat; “[w]ithout these 

additional facts to rely on, there was nothing leading the 

officers to believe that [the prisoner] himself was not

speculating regarding the threat he faced[.]”). 

Horan, slip op. at 17-18 (emphasis added). Consequently, accepting the wellpleaded facts in the Complaint and the incorporated exhibits and inferences 

reasonably deducible therefrom as true, Pew failed to state an Eighth Amendment 

violation claim against Appellees upon which relief could be granted. Accordingly,

the trial court properly sustained Appellees’ Fourth Preliminary Objection. 

Pew next argues that the trial court erred by concluding that Pew failed 

to state a valid cause of action under the First Amendment.
12

At the outset, “confinement and the needs of the penal institution 

impose limitations on constitutional rights, including those derived from the First 

Amendment[.]” Nunez, 283 A.3d at 423 (quoting Jones, 433 U.S. at 125). 

Notwithstanding, “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.” Nunez, 283 A.3d at 423 (quoting Pell v. Procunier, 417 

U.S. 817, 822 (1974)). Specifically, “[t]he 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.” Nunez, 283 A.3d at 421 n.9. 

The Nunez Court explained that, in order for an inmate to establish a 

valid First Amendment retaliation claim, he

must show by a preponderance of the evidence that[:] [(1) 

he] 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. [See] Yount v.

Dep’t of Corr., . . . 966 A.2d 1115 . . . ([Pa.] 2009). The 

burden of proof remains upon the inmate at all times in the 

context of a retaliation claim of this nature. [See i]d. at 

1121. 

Id. at 422 (quotation marks omitted).

Here, the trial court “interpret[ed] [Appellees’] demurrer as taking issue 

with the second and fourth prongs of the test for a viable retaliation claim.”

17 Trial 

17 Pew satisfied the first factor because his “filing of [the PREA complaints and/or 

grievances] was . . . constitutionally protected conduct.” Nunez, 283 A.3d at 423. Pew arguably 

satisfied the second factor because he pled that Appellees took adverse action against him. Pew 

does not claim, and neither the Complaint nor the documents incorporated therein clearly reflect 

facts (i.e., timing and/or pattern, see id.) that would allow the trial court or this Court to determine 

whether the protected conduct was a substantial or motivating factor for Appellees’ alleged

actions.
13

Ct. Op. at 7. However, “this Court need not decide whether the facts averred in [an 

inmate’s] complaint satisfy the first three prongs . . . [where] the alleged facts are 

insufficient to meet the fourth prong . . . .” Richardson v. Wetzel, 74 A.3d 353, 357

(Pa. Cmwlth. 2013). 

To satisfy the fourth factor, 

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 . . . , 74 A.3d [at] 358 . . . . “Claims of 

retaliation fail if the alleged retaliatory conduct violations 

were issued for the actual violation of a prison rule.”

Horan . . . , slip op. at 9 . . . (quoting Hartsfield v. Nichols, 

511 F.3d 826, 829 (8th Cir. 2008)).

Nunez, 283 A.3d at 426 (emphasis added; footnote omitted). Thus, “the final 

element for a First Amendment retaliation claim places the burden of proof on the 

[inmate] to affirmatively disprove that the [prison officials’ adverse] action did not 

further a legitimate penological goal.” Horan, slip op. at 8. “[T]he reason for this 

requirement stems from the ‘potential for abuse’ inherent in retaliation claims and 

also a policy of judicial deference to the prison officials’ ‘legitimate interest in the 

effective management of a detention facility.’” Id. (quoting Yount, 966 A.2d at 

1120).

In-cell television and email kiosk use are privileges to which SCI 

inmates may be entitled, but prison officials may rescind those privileges based on 

the inmate’s violation of the Department’s rules.18 Here, Pew asserted only that 

18 Section III.A.1 of the Department’s 2017 Inmate Handbook declares: “[Inmate] use of 

the cable television system is a privilege. Misuse of the system or violation of the rules may lead 

to denial of this privilege as well as legal action against [the inmate].” Id. at 11; 

www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/2017%20DOC%20Inmate%20Han

dbook.pdf (last visited Mar. 6, 2023). Section 2.B.1.d of the Department’s DC-ADM 801 provides 

loss of “specified privileges,” including in-cell television and email kiosk access, can result from 

discipline for rule violations. Id. at 2-2;
14

Appellees denied him access to the email kiosk to deter him from filing complaints. 

See Complaint ¶ 23. He did not aver in either the Complaint or the incorporated 

documents that he held television and/or email kiosk privileges in the first instance, 

nor did he declare that Appellees’ removal of those privileges constituted adverse 

actions that “[did] not advance legitimate penological goals.” Nunez, 283 A.3d at 

422. Therefore, it is impossible to know based on the Complaint whether retaliation 

was the only possible reason for Appellees’ actions. “[I]n the absence of sufficient 

factual averments to establish that [Appellees prohibiting Pew’s in-cell television 

and email kiosk use] did not further a legitimate penological goal,” Pew failed to 

state a valid cause of action against Appellees upon which relief may be granted 

under the First Amendment. Richardson, 74 A.3d at 359. Accordingly, the trial 

court properly sustained Appellees’ Fifth Preliminary Objection. 

Pew next argues that the trial court erred by concluding that Pew failed 

to state valid causes of action under article I, sections 13, 20, and 26 of the 

Pennsylvania Constitution.

Pew generally pled in his Complaint that Appellees violated article I, 

sections 20 and 26 of the Pennsylvania Constitution. See Complaint at 9. Article I, 

section 20 of the Pennsylvania Constitution states: “The citizens have a right in a 

peaceable manner to assemble together for their common good, and to apply to those 

invested with the powers of government for redress of grievances or other proper 

purposes, by petition, address or remonstrance.” PA. CONST. art. I, § 20. Article I, 

section 26 of the Pennsylvania Constitution specifies: “Neither the Commonwealth 

nor any political subdivision thereof shall deny to any person the enjoyment of any 

civil right, nor discriminate against any person in the exercise of any civil right.” 

PA. CONST. art. I, § 26. 

www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/801%20Inmate%20Discipline.pdf

(last visited Mar. 6, 2023).
15

Pew does not articulate in the Complaint or the incorporated exhibits

how Appellees may have violated his rights under article I, sections 20 and 26 of the 

Pennsylvania Constitution. Without sufficient specific facts, the Court is 

constrained to conclude that Pew failed to state a cause of action. Moreover, courts 

“need not accept as true conclusions of law” when ruling on preliminary objections 

in the nature of a demurrer. Vasquez, 279 A.3d at 76 (quoting Stone & Edwards Ins.

Agency, Inc., 616 A.2d at 1063). Further, to the extent Pew intended his 

Pennsylvania Constitution violation claims as an extension of his First Amendment 

violation claim, his Pennsylvania Constitution violation claims also fail. 

Thus, accepting the well-pleaded facts in the Complaint and the 

incorporated exhibits as true, Pew failed to state a valid claim against Appellees for 

which relief could be granted under article I, sections 20 and 26 of the Pennsylvania 

Constitution. Accordingly, the trial court properly sustained Appellees’ Sixth 

Preliminary Objection. 

Pew next argues that the trial court erred by concluding that Pew failed 

to state valid causes of action under the ADA.

19

 

Congress’s purpose in enacting the ADA was “to provide a clear and 

comprehensive national mandate for the elimination of discrimination against 

individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Relative to Title II, Section 

12132 of the ADA specifies, in relevant part: “[N]o qualified individual with a 

disability[20]shall, by reason of such disability, be excluded from participation in or 

be denied the benefits of the services, programs, or activities of a public entity, or be 

19 Pew identified in his response to the Preliminary Objections that his claim was made 

under Title II of the ADA.

20 Qualified individual with a disability is defined in Section 12131(2) of the ADA as “an 

individual with a disability who, with or without reasonable modifications to rules, policies, or 

practices, . . . meets the essential eligibility requirements for the receipt of services or the 

participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). 
16

subjected to discrimination by any such [public] entity.” 42 U.S.C. § 12132. This 

Court has explained:

To establish a violation of Title II of the ADA, a petitioner 

must show that: (1) he “is a qualified individual with a 

disability;” (2) he “was either excluded from participation 

in or denied the benefits of some public entity’s services, 

programs, or activities or was otherwise discriminated 

against;” and (3) “such exclusion, denial of benefits, or 

discrimination was by reason of the plaintiff’s disability.”

Pesce [v. Coppinger], 355 F. Supp. 3d [35,] 45 [(D. Mass. 

2018)] (quoting Parker v. Universidad de Puerto Rico, 

225 F.3d 1, 5 (1st Cir. 2000)).

Rokita v. Pa. Dep’t of Corr., 273 A.3d 1260, 1272 (Pa. Cmwlth. 2022). Section 

12131(1)(B) of the ADA defines public entity as “any department, agency, . . . or 

other instrumentality of a [s]tate . . . .” 42 U.S.C. § 12131(1)(B). “[S]tate prisons 

fall within the definition of a ‘public entity,’ and [] inmates may bring ADA claims 

against state prisons.” Rokita, 273 A.3d at 1272.

Here, although Pew did not specify in the Complaint and appended 

documents whether Appellees were acting in their official or individual capacities,21

he alleged that Appellees denied him in-cell television and email kiosk access in

retaliation for his PREA complaints. Pew did not assert that Appellees excluded 

him, denied him benefits or otherwise discriminated against him “by reason of [his]

disability [(i.e., serious mental illness)].” Rokita, 273 A.3d at 1272 (quoting Pesce, 

355 F. Supp. 3d at 45). Therefore, accepting the well-pleaded facts in the Complaint 

and the incorporated exhibits as true, Pew failed to state a valid cause of action 

against Appellees upon which relief may be granted under Title II of the ADA. 

21

“The Eighth Circuit has held that individuals may not be sued in their individual 

capacities directly under the provisions of Title II of the ADA. Alsbrook v. City of Maumelle, 184 

F.3d 999, 1005 n.8 (8th Cir.1999).” Damron v. N.D. Comm’r of Corr., 299 F. Supp. 2d 970, 976 

(D.N.D. 2004), aff’d sub nom. Damron v. N.D. Comm’r of Corr., Bismarck, N.D., 127 F. App’x 

909 (8th Cir. 2005).
17

Accordingly, the trial court properly sustained Appellees’ Seventh Preliminary 

Objection.

Conclusion

Accepting as true all well-pleaded material allegations in the 

Complaint, as well as all inferences reasonably deduced therefrom, as this Court 

must, it is “‘clear and free from doubt that the law will not permit recovery’ by 

[Pew]” for violations of the Eighth Amendment, First Amendment, article I, sections 

13, 20 and 26 of the Pennsylvania Constitution, or Title II of the ADA. Vasquez, 

279 A.3d at 76 (quoting Cap. City Lodge No. 12, 588 A.2d at 587). Because Pew 

failed to state a claim for which any substantive relief could be granted under those 

legal theories, this Court affirms the trial court’s order.

_________________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alfonso Percy Pew, :

Appellant :

:

v. :

:

Timothy Miller, David Radziewics, :

Lt. Lytle, Deputy Houser, Deputy :

Rivello, Capt. Andrews, Supt. Garman, :

Lt. Sherman, John Doe 1, CO 1, and : No. 27 C.D. 2022

John Doe 2, CO 1 :

O R D E R

AND NOW, this 7

th day of March, 2023, the Centre County Common 

Pleas Court’s December 21, 2021 order is affirmed.

_________________________________

ANNE E. COVEY, Judge