Opinion
No. 2659 C.D. 2009
02-07-2012
Alton D. Brown, Appellant v. Jeffrey Beard, Tom Corbett, William Nalitz, Louis S. Folino, and Jane Doe Asst. A.G.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Alton D. Brown (Brown) appeals pro se from the order of the Court of Common Pleas of Fayette County (common pleas court) which denied Brown's request to proceed in forma pauperis pursuant to Section 6602(f)(1) of the Prisoner Litigation Reform Act (PLRA), 42 Pa.C.S. §6602(f)(1).
Section 6602(f) of the PLRA provides:
(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 action or a person serving in the same official capacity as a named defendant 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.
Brown currently is incarcerated at the State Correctional Institution at Graterford (SCI-Graterford). He previously was incarcerated at the State Correctional Institution at Greene (SCI-Greene).
On or about March 25, 2009, Brown commenced an action against Jeffrey Beard, the Secretary of the Department of Corrections; Tom Corbett, the then attorney general of Pennsylvania, Judge William Nalitz (Judge Nalitz) of the Court of Common Pleas of Greene County, and Jane Doe, an assistant attorney general (collectively, Appellees).
In the complaint, Brown alleged that Judge Nalitz had scheduled the case of Brown v. Morchetta to be heard on April 7, 2009, and jury selection for April 6, 2009. Judge Nalitz ordered Brown and his witnesses to be housed at SCI-Greene during the trial. The Department of Corrections (DOC) had previously barred Brown from being housed at SCI-Greene due to previous conflicts between Brown and staff there. Brown further alleged:
12. The [sic] is a well documented history of racializm [sic] and abuse against minority and litigious prisoners at
SCI-Greene, which is aboved [sic] of and allowed to exist by Defendants Nalitz, Beard, Corbett, Folino, and Jane Doe; and is specifically used to punish disliked prisoners and instill fear in others.
13. Plaintiff [Brown] has been repeatedly and openly abused, harassed, tortured and lied or [sic] while in the custody of SCI-Greene staff, and has been warned of further abuse or death if he ever came back to SCI-Greene by Lieutenants Frank and Kirby, in April 2006, at SCI-Greene.
14. Plaintiff [Brown] has contacted [sic] post-traumatic stress disorder as a result [of] mistreatment by SCI Greene and Defendants refusal to correct the known violations of abuse, everytime [sic] he is in their custody, and even the mention of being housed at that institution triggers persistent recurrence of images and memories of the beatings and abuse, together with nightmares, insomnia, a sense of isolation, irritability, and loss of concentration, which worsens when actually housed in the institution. This illness also causes Plaintiff's [Brown] emotions, subjective, physiological, and behavioral, to deadened [sic] and become excited.
15. The fear causes Plaintiff's [Brown] heart rate to increase, sweat, and other symtoms [sic] similar to those of torture victims.
16. Defendants are well aware of Plaintiff's [Brown] disorder and has [sic] conspired to house plaintiff [Brown] at SCI-Greene in attempts to sabotage his prosecution in [the] Morchetta case and discourage him from pursuing his other pending cases in Greene County, including a PCRA matter . . . and a civil case pending a trial date. . . .
17. Defendants and/or their agents has [sic] conspired to use the adverse effects of Plaintiff's [Brown] disorder [to] sabotage his case and as an accuse [sic] for punishment and abuse.
18. Plaintiff [Brown], while in the custody of SCI-Greene staff, has been repeatedly been subjected to to [sic] intentionally humiliating and unsanitary strip searches, physical and psychological abuse, broken bones, intense pain, cuts, contusions, head injuries, denial of food for days, hard cell placement in unsanitary and inhuman conditions, which has had adverse effects on his preexisting illnesses, including: Gastroesophageal reflux disease (GORD) (causes intensed [sic] heartburn, regurgitation, osophagitis [sic] and odynopharjica [sic]; and a threat to cause cancer); hypoglycemia (low blood sugar, causing muscular weakness and incoordination [sic], mental confusion, and sweating; and, can cause coma and/or death); bradycardia (abnormal heart beat, can cause death). Hepalitis [sic] C (progressive liver disease, which can cause death); and, migraine headaches.Complaint, March 25, 2009, Paragraph Nos. 12-19 at 2-3.
19. Plaintiff [Brown] is in imminent danger of serious physical and psychological injury or death, and further injury to his preexisting diseases if the defendants are allowed to house him at SCI-Greene.
Brown sought a permanent injunction to prevent the Appellees and /or their agents from subjecting him to the conditions and punishments complained of in the complaint and costs. Brown also petitioned to proceed in forma pauperis and also sought to preliminarily enjoin DOC from housing him and his witnesses at SCI-Greene and from providing transportation and courtroom security for Brown's trial.
By order dated March 27, 2009, the common pleas court denied Brown's request to proceed in forma pauperis under the provision contained in Section 6602(f) of the PLRA, 42 Pa.C.S. §6602(f), because Brown had already had three or more of these prior civil actions dismissed. The common pleas court cited to Brown v. James, 822 A.2d 128 (Pa. Cmwlth. 2003), petition for allowance of appeal denied, 577 Pa. 736, 848 A.2d 930 (2004) where this Court determined that Brown had previously accumulated more than "three strikes" under Section 6602(f)(1) of the PLRA.
Brown contends that the common pleas court erred and/or abused its discretion when it denied Brown's request to proceed in forma pauperis because of his credible allegations that he was in imminent and ongoing danger of serious injury.
This Court's review is limited to a determination of whether constitutional rights were violated, or whether the common pleas court abused its discretion or committed an error of law. Pew v. Mechling, 929 A.2d 1214, 1217 n. 4 (Pa. Cmwlth. 2007).
In Payne v. Department of Corrections, 813 A.2d 918, 928 (Pa. Cmwlth. 2002), affirmed in part and reversed in part, 582 Pa. 375, 871 A.2d 795 (2005), this Court determined that the "three strikes provision" contained in Section 6602(f)(1) of the PLRA was analogous to a jurisdictional hurdle that one seeking in forma pauperis status to challenge prison conditions must overcome.
Section 6601 of the PLRA, 42 Pa.C.S. §6601, defines prison conditions litigation as:
[a] civil proceeding arising in whole or in part under Federal or State law with respect to the conditions of confinement or the effects of actions by a government party on the life of an individual confined in prison. The term includes an appeal. The term does not include
criminal proceedings or habeas corpus proceedings challenging the fact or duration of confinement in prison.
In the present case, it is undisputed that Brown's litigation comes under the PLRA. Further, it is undisputed that Brown has more than exceeded his "three strikes." See Brown v. James, 822 A.2d 128 (Pa. Cmwlth. 2003), petition for allowance of appeal denied, 577 Pa. 736, 848 A.2d 930 (2004).
The only way Brown may avoid dismissal of his complaint is if he has made a "credible allegation that [he] is in imminent danger of serious bodily injury" in seeking injunctive relief. 42 Pa.C.S. §6602(f).
In Brown v. Beard, 11 A.3d 578 (Pa. Cmwlth. 2010), this Court addressed what constitutes imminent danger. In Brown, Alton D. Brown (Brown) alleged that various civil rights violations occurred when he was housed two separate times at the State Correctional Institution at Pittsburgh (SCI-Pittsburgh). Brown sought an injunction to prevent him from being sent back to SCI-Pittsburgh. The Court of Common Pleas of Allegheny County (court of common pleas) dismissed Brown's complaint. Brown, 11 A.3d at 579-580.
Alton D. Brown is the appellant in the present case.
In its order the court of common pleas dismissed the complaint under Pa.R.C.P. No. 240(j). However, in its opinion, the court of common pleas referred only to Section 6602(f) of the PLRA. This Court has treated the controversy as if it were dismissed under the PLRA. --------
On appeal to this Court, Brown contended that if he were sent back to SCI-Pittsburgh, he would be in imminent danger of serious bodily injury because he might be subjected to the same treatment he allegedly received while housed there in 2008 and 2009, and that treatment might aggravate his preexisting illnesses. Brown, 11 A.3d at 581.
This Court determined that Brown failed to make a credible allegation that he was in imminent danger:
In defining the term 'imminent danger,' our Supreme Court has stated, '[t]o be imminent, the danger must be, or must reasonably appear to be, threatening to occur immediately, near at hand, and impending.'. . . Brown's allegations cannot be construed to fit this definition. Importantly, Brown is no longer an inmate at SCI-Pittsburgh. Brown's exposure to the danger of serious bodily injury he complains of is wholly dependent upon repetition of the mistreatment Brown allegedly received at SCI-Pittsburgh in 2008 and 2009, which, in turn, is wholly dependent upon Brown being sent back to SCI-Pittsburgh in the first place. Such a speculative and tenuous scenario is antipodal to the concept of imminence.Brown, 11 A.3d at 581-582.
Furthermore, even if we assume, arguendo, that Brown will be sent back to SCI-Pittsburgh, that the alleged mistreatment will be repeated, that repetition of the alleged mistreatment will aggravate Brown's preexisting illnesses, and that aggravation of Brown's preexisting illnesses will place Brown at a higher risk of developing more severe medical conditions, it does not follow that these more severe medical conditions would be 'threatening to occur immediately, near at hand, [or] impending.'. . . Brown has unsuccessfully attempted a similar argument in federal court on at least two occasions. . . .
If Brown's complaint were allowed to proceed under Section 6602(f) of the PLRA, the exception would swallow the rule and the General Assembly's use of the work 'imminent' would be rendered meaningless. (Footnote and citations omitted).
Here, as in Brown's complaint regarding SCI-Pittsburgh, he was not housed at SCI-Greene at the time he made the complaint so that any exposure to serious bodily injury would depend on SCI-Greene officials engaging in the same conduct that they allegedly engaged when Brown was previously housed there. Even if Brown would be moved there prior to his trial, as he alleged in his complaint, and received the treatment he feared, the development or exacerbation of the physical ailments he recited would not occur immediately or near at hand. Brown did not establish that he was in imminent danger.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 7th day of February , 2012, the order of the Court of Common Pleas of Greene County in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge
Section 6602(e)(2) of the PLRA, 42 Pa.C.S. §6602(e)(2) 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.