Opinion
No. 1508 C.D. 2011
08-08-2012
Keith Bartelli, Appellant v. Pennsylvania Department of Corrections, Jeffrey Beard, Louis Folino, DS Martin, Martin Capozza, Major Grainey, Captain Walker, Oddo, Workman, Haywood, M. Luscavage, Lieutenant Tony, Lieutenant Neligh, Lieutenant Armstrong, Lieutenant Grogo, Lieutenant Tanner, Lieutenant Kirby, Dorina Varner, Ken Moore, Tracy Pollack, Sgt. Rigney, Sgt. Bittenger, Doe #1, Doe #2, Korte, Fauvie, Lacotta, Newcomer, R. Walters, Martin, Wilcher, Freeman, Dan Davis, Bonnie Lindley
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Appellant, Keith Bartelli, proceeding pro se, appeals from the order of the Court of Common Pleas of Greene County (trial court) granting the preliminary objections of Appellees, Pennsylvania Department of Corrections, et al., and dismissing his complaint. The trial court determined that Appellant was an abusive litigator in accordance with Section 6602(f) of the Prison Litigation Reform Act (PLRA), 42 Pa. C.S. § 6602(f), and that he was not in imminent danger of serious bodily harm. We affirm.
Section 6602(f) of the PLRA, 42 Pa. C.S. § 6602(f) , provides in relevant part:
(f) Abusive litigation.—If the prisoner has previously filed prison conditions litigation and:
(1) three or more of these prior civil actions have been dismissed pursuant to subsection (e)(2); or
(2) the prisoner has previously filed prison conditions litigation against a person named as a defendant in the instant...and a court made a finding that the prior action was filed in bad faith or that the prisoner knowingly presented false evidence or testimony at a hearing or trial; the court may dismiss the action. The court shall not, however, dismiss a request for preliminary injunctive relief or a temporary restraining order which makes a credible allegation that the prisoner is in imminent danger of serious bodily injury.
Appellant, while incarcerated at the State Correctional Institution - Greene, filed a complaint in the trial court alleging that the 33 named Appellees deprived him of his right to be secure in person and property, the right to petition for redress of grievance, the right to be free from conspiratorial intrigues and the making of false records, the right not to be subject to arbitrary retaliation, libel and slander, the right to due process and to access to the courts and the right to be free from excessive copying fees under Pennsylvania law. Appellees removed the action to the United States District Court for the Western District of Pennsylvania. The district court determined that Appellant had not plead any federal claims and remanded to the state court.
In May 2011, Appellant was transferred to the State Correctional Institution - Rockview. On June 15, 2011, following return to the trial court, Appellees filed preliminary objections asserting that Appellant was an "abusive litigator" because he had six previous actions dismissed as frivolous, malicious or for failure to state a claim, and that dismissal of his action was appropriate pursuant to Section 6602(f) of the PLRA. On July 18, 2011, the trial court issued an order granting Appellees' preliminary objections, finding that Appellant was an abusive litigator and dismissing the complaint with prejudice. On October 14, 2011, the trial court issued an opinion in support of its order. The trial court concluded that Appellant was an abusive litigator because it was undisputed that he was active in the court system and that his complaint was devoid of any evidence of imminent danger of serious bodily injury. This appeal followed.
Appellant argues that the trial court erred in dismissing his complaint because: (1) he adequately alleged that he was in imminent danger of serious bodily harm, (2) the trial court improperly relied upon Section 6602(f) of the PLRA and (3) Appellees and the trial court improperly transferred him to SCI-Rockview to defeat the imminent danger exception to Section 6602(f).
Appellant's argument regarding his transfer is without merit. In Brown v. Beard, 11 A.3d 578, 581 (Pa. Cmwlth. 2010), this Court held that a prisoner is no longer in imminent danger of serious bodily harm following transfer to a different institution. Appellant also argued that the Commonwealth Court is required to establish precedential standards for courts to apply to inmate claims. This argument is not properly before us. --------
After carefully reviewing the record, the briefs of the parties and the relevant law, this Court finds that the issues raised by Appellant are accurately and sufficiently addressed in the opinion of the Honorable Farley Toothman of the Court of Common Pleas of Greene County filed October 14, 2011, in Bartelli v. Beard, A.D. No. 872 of 2010. Accordingly, this Court affirms the trial court's order on the basis of that opinion.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 8th day of August, 2012, the order of the Court of Common Pleas of Greene County is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge
Section 6602(e)(2) of the PLRA provides:
(e) Dismissal of litigation.—Notwithstanding any filing fee which has been paid, the court shall dismiss prison conditions litigation at any time, including prior to service on the defendant, if the court determines any of the following:
(2) The prison conditions litigation is frivolous or malicious or fails to state a claim upon which relief may be granted or the defendant is entitled to assert a valid affirmative defense, including immunity, which, if asserted, would preclude the relief.