Opinion
No. 93 M.D. 2011
03-29-2012
Alton D. Brown, Petitioner v. PA Dept. of Corrections, and John Wetzel (Secretary of PA Dept. of Corrections), Respondents
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge
This case was assigned to the opinion writer before January 7, 2012, when Judge Pellegrini became President Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Before this Court are the Preliminary Objections (POs) filed by the Pennsylvania Department of Corrections and John Wetzel, Secretary of Corrections (together, Department) to the Amended Petition for Review/Petition for a Writ of Mandamus (Amended Petition) and the Application for Special Relief in the Nature of Preliminary Injunction (Application for Special Relief) filed by Alton D. Brown (Brown). In its PO to the Amended Petition (Mandamus PO), the Department asserts that this Court should revoke Brown's in forma pauperis (IFP) status and dismiss the Amended Petition under Section 6602(f) of the Prison Litigation Reform Act (PLRA), 42 Pa. C.S. § 6602(f) (relating to the revocation of IFP status and dismissal of prison conditions litigation based on prior abusive litigation), because Brown is an abusive litigator and has not made a credible allegation that he is in imminent danger of serious bodily injury. In its PO to the Application for Special Relief (Special Relief PO), the Department reiterates that Brown is an abusive litigator under Section 6602(f) and contends that Brown's factual allegations fail to support the issuance of a preliminary injunction. We must determine what allegations a serial abusive litigator under Section 6602(f) must make, in the context of prison conditions and denial of medical care litigation, to constitute a "credible allegation" of "imminent danger of serious bodily injury" thereby allowing him to proceed IFP. 42 Pa. C.S. § 6602(f). Because this Court determines that Brown has not made credible allegations of imminent danger of serious bodily injury, we grant the Department's POs and revoke Brown's IFP status.
I. Amended Petition
On February 14, 2011, Brown filed a Petition for Mandamus with the Court of Common Pleas of Dauphin County, which transferred the matter to this Court by Order dated February 25, 2011. Brown requested IFP status with this Court, which we granted by Order dated March 22, 2011. On July 22, 2011, Brown sought permission to amend his original mandamus request, which was granted. In the Amended Petition, Brown asserts that he is an inmate at the State Correctional Institution at Graterford (SCI-Graterford) and that the Department is housing him in an unventilated isolation cell in violation of the 8th and 14th Amendments of the United States Constitution, the regulation at 37 Pa. Code § 95.266(4)(iv), and the Clean Indoor Air Act of 1988. Brown alleges that: the cell block in which he is housed, J-Block, has no windows; although the unit was designed to use air conditioning, there is no air conditioning in the prisoner cell areas; and the ventilation system is never cleaned and only recirculates the air. He further contends that the cells in the C and D wings of J-Block were reconstructed with cell fronts of plexiglass and sheets of metal; no heat is permitted into these cells during the winter because of closed cell fronts; and there is no cool or fresh air to pull into the ventilation systems, making it extremely hot in the open and closed cells in the summer and extremely cold in the winter. Brown alleges that it is approximately thirty degrees hotter in the closed cells than in the open cells. The cells are constantly polluted with a fine dust because of the lack of ventilation and the disconnected floor exhausts. Additionally, Brown avers that the cell lights, which are used only in the closed cells, and other lights in the cell block are illuminated twenty-four hours a day, seven days a week, which increases the temperature in the cell block during the summer months. SCI-Graterford's staff has a practice of cutting off air exhaust to the cells as a means of increasing punishment; therefore, even when the exhaust system is working, it does not remove sufficient quantities of dust, smoke, odors, and fumes because of the high level of humidity. The ventilation system in the death row area of SCI-Graterford has been the subject of prior litigation, see Peterkin v. Jeffes, 661 F. Supp. 895 (E.D. Pa. 1987) (rejecting claims that the housing conditions at, inter alia, SCI-Graterford violated the 8th Amendment), aff'd in part, vacated in part, 855 F.2d 1021 (3d. Cir. 1988) (affirming district court's ruling as to the housing conditions at SCI-Graterford but vacating and remanding on challenge to the denial of law library time in violation of the inmates' right to meaningful access to the courts). This particular block of cells has an insufficient number of fans for the open-cell area, which results in animosity and fights among the prisoners on that block, and the lack of fans is a practice often used by the staff as a form of punishment. "The closed[ ]cells are so cruel that they are ideal for torture/punishment purposes." (Amended Petition ¶¶ 5-21, 32, 36-37.)
Brown filed a Petition for Preliminary Injunction on April 4, 2011, to which the Department filed POs. In consideration of this Petition and the Department's POs, we denied the Petition by Order dated May 13, 2011.
We note that the regulation at 37 Pa. Code § 95.266(4)(iv) applies to county correctional institutions, not state correctional institutions.
Act of June 13, 2008, P.L. 182, 35 P.S. §§ 637.1-637.11.
Although the average restricted housing unit (RHU) prisoner returns to the regular prison population within a few months, Brown is on the "Restricted Release List" and is not scheduled to be released into the general population. Since June 15, 2010, Brown has been continuously housed in a closed cell with the cell exhaust turned off in retaliation for filing complaints or grievances against RHU staff. The foul air that seeps into his cell causes Brown to barely be able to breathe and, in some instances, he has to cover his nose and mouth with a towel in order to breathe. As a result of these conditions: Brown's sinuses clog and become infected, damaging his smell and taste; he is prevented "from getting a deep satisfying breath"; he has wheezing sounds in his lungs, a sore throat, and an increased production of mucus, which results in his coughing up blood. (Amended Petition ¶ 28.) Brown claims he is in imminent and ongoing "danger of his illnesses progressing, premature death, cancer, irreparable lung damage, contracting c[h]ronic bronchitis (assuming he does not already have it), or some other type of serious re[s]piratory disease." (Amended Petition ¶ 29.) The conditions also have affected his liver disease, Hepatitis C, as demonstrated by the multiple orange or yellow dots on his skin and the manifestation of other Hepatitis C symptoms. He further avers that he has and continues to suffer extreme pain and discomfort as a result of these conditions, which are without penological justification, and that the Department refuses to provide relief from these conditions or adequate care for his illnesses for punishment reasons and to prevent documentation of his illnesses. Brown asserts that he has filed numerous grievances under the Department's grievance procedures, written letters to the Department's Secretaries, and requested numerous sick calls, all to no avail. Brown avers that he "has a right to adequate ventilation, to be free of excessive heat and cold, and to be free of toxic or noxious fumes, which is protected by State and local law, health codes, and the 8th and 14th Amendments of the U[nited] S[tates] Consti[tu]tion," and the "right to adequate medical care" under the above cited laws. (Amended Petition ¶¶ 36-37.) He further contends that the Department "has a duty to insure that the requirements of Federal and State law are complied with concerning the housing and treatment of prisoners." (Amended Petition ¶ 38.) Brown is seeking: (1) a preliminary and permanent injunction enjoining the Department from housing Brown in these conditions and to provide immediate, adequate medical care for his illnesses; (2) incidental damages pursuant to 42 Pa. C.S. § 8303 (stating that a "person who is adjudged in an action in the nature of mandamus . . . shall be liable in damages to the person aggrieved"); (3) a declaratory judgment that the Department is violating the United States Constitution; (4) litigation costs; and (5) any other relief deemed just by our Court. (Amended Petition ¶¶ 22-35, Wherefore clause.)
On September 6, 2011, the Department filed its Mandamus PO, and Brown filed a timely answer. In its Mandamus PO, the Department argued that Brown's IFP status should be revoked and the Amended Petition dismissed under Section 6602(f) of the PLRA because Brown is an abusive litigator and he has failed to make credible allegations of imminent danger of serious bodily injury. According to the Department, Brown has made the same arguments before in federal court as he makes in this case and they have been rejected as not constituting "imminent danger." (Department's Br. at 10 (citing Brown v. Beard, 2010 U.S. Dist. LEXIS 28352 (E.D. Pa., March 25, 2010); Brown v. Beard, 492 F. Supp. 2d 474 (E.D. Pa. 2007).) Additionally, the Department contends that this Court is not obligated to accept Brown's allegations as true because they are generalized in nature and because of Brown's litigious history. See Brown v. City of Philadelphia, 331 Fed. Appx. 898 (3d Cir. 2009) (City of Philadelphia). Brown responds that there is no proof that he has ever exploited the exception to dismissal under Section 6602(f) and that the Third Circuit Court of Appeals routinely grants him IFP status, including in a recent case alleging illness based on exposure to environmental tobacco smoke. Brown v. DiGuglielmo, 418 Fed. Appx. 99 (3d Cir. 2011) (Brown I). The Department states in its brief, however, that there is nothing in Brown I that refers to Brown's IFP status and Brown is not candid in his contention that the Third Circuit routinely grants him IFP status under the imminent danger exception. Indeed, according to the Department, in September and November 2010, the Third Circuit specifically denied Brown IFP status. (Department's Br. at 11-12, Attachments E and F.)
We note that while the Department is correct that the Third Circuit in Brown I did not mention Brown's IFP status; the district court, in its opinion, noted that it had granted Brown IFP status on the issue of whether he was exposed to environmental tobacco smoke (second-hand smoke), "conditioned upon a later showing on the merits" of imminent danger of serious bodily injury. Brown v. DiGuglielmo, No. 07-3771, 2007 WL 4570717, at *3 n.5 (E.D. Pa. Dec. 26, 2007). The district court concluded, however, that Brown's pleadings, in which he sought a preliminary injunction, did not establish that irreparable harm would result if the injunction was not granted. Id. at 2007 WL 4570717, at *3 n.5.
The PLRA describes the manner in which prisoners can engage in prison conditions litigation, setting forth, inter alia, the definitions of such litigation, the filing fees to be paid, and the ability of a trial court to dismiss such litigation for various reasons. Section 6602(e) of the PLRA provides that:
(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:42 Pa. C.S. § 6602(e). Thus, Section 6602(e) applies to all prison litigation, regardless of whether the inmate pays the filing fees and costs associated with that litigation or proceeds IFP. Section 6602(f) of the PLRA, which applies to IFP litigation, sets forth the following:
(1) The allegation of indigency is untrue.
(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 relief.
(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);
. . . .
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.42 Pa. C.S. § 6602(f) (emphasis added). In Jae v. Good, 946 A.2d 802 (Pa. Cmwlth. 2008), this Court addressed the constitutionality of the "three strikes rule" set forth in Section 6602(f), stating:
The "three strikes rule" of Section 6602(f) of the PLRA does not prevent prisoners from filing any number of civil actions challenging prison conditions. It only restricts their ability to pursue such actions [IFP]. There is a legitimate governmental interest in deterring frivolous law suits,14 and Section 6602(f) advances that goal rationally by depriving an abusive litigator of the ability to proceed [IFP]. Further, the legislation balances the need to deter prisoners from filing frivolous litigation against the need to protect prisoners from physical harm.Id. at 809 (emphasis added). In McCool v. Department of Corrections, 984 A.2d 565 (Pa. Cmwlth. 2009), we noted that, "the consequences of the 'three strikes rule' deprive the prisoner of the ability to pursue his claim [IFP]. He could, however, proceed by paying costs." Id. at 572 (citing Jae, 946 A.2d at 809) (citation omitted). In Lopez v. Haywood, ___ A.3d ___, ___ (Pa. Cmwlth. No. 629 C.D. 2011, filed February 9, 2012), slip op. at 7-9, we held that Jae and McCool allow "a prisoner, whose IFP status is revoked pursuant to the 'three strikes rule,' to be able to 'proceed by paying costs' before the [] court dismisses the action in its entirety under Section 6602(f)." Id., ___ A.3d at ___, slip op. at 7.
14 No litigant, indigent prisoner or otherwise, is permitted to prosecute a lawsuit which fails to state a claim upon which relief may be granted. The United States Supreme Court stated, "[d]epriving someone of a frivolous claim . . . deprives him of nothing at all, except perhaps the punishment of . . . sanctions." Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996).
There is no dispute that Brown is an abusive litigator under Section 6602(f). See, e.g., Brown v. James, 822 A.2d 128 (Pa. Cmwlth. 2003) (listing various cases indicating that Brown is considered an abusive litigator in both this Court and the federal court system); Brown v. Beard, 492 F. Supp. 2d 474, 477 (E.D. Pa. 2007) (same). Consequently, the only determination left to be made is whether Brown can avoid the revocation of his IFP status under the "imminent danger" exception and continue the present litigation without having to pay any filing fees or costs.
A prisoner can avoid the revocation of his IFP status and dismissal of the prisoner's IFP prison conditions litigation "only 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); Brown v. Beard, 11 A.3d 578, 581 (Pa. Cmwlth. 2010). Our Supreme Court has defined "imminent danger," stating "[t]o be imminent, the danger must be, or must reasonably appear to be, threatening to occur immediately, near at hand, and impending." Commonwealth v. Capitolo, 508 Pa. 372, 379, 498 A.2d 806, 809 (1985). Generally, in "ruling on preliminary objections, this Court considers as true all well-pleaded facts which are material and relevant," but is not required to "accept as true conclusions of law, unwarranted inferences from [the] facts, argumentative allegations, or expressions of opinion." Giffin v. Chronister, 616 A.2d 1070, 1072 (Pa. Cmwlth. 1992). However, in City of Philadelphia, relied upon by the Department, the Third Circuit, citing, inter alia, Denton v. Hernandez, 504 U.S. 25, 32-33 (1992), noted that, under the federal version of the PLRA, "[a] court need not accept all allegations of injury" or "accept without question the truth of the plaintiff's allegations." City of Philadelphia, 331 Fed. Appx. at 900. "To the contrary, a court may discredit 'factual claims of imminent danger that are 'clearly baseless.'" Id. (quoting Gibbs v. Cross, 160 F.3d 962, 967 (3d Cir. 1998)). "Rather, we may be guided by judicially noticeable facts in determining whether the allegations are baseless or wholly incredible." Id. Thus, in City of Philadelphia, the Third Circuit determined that there was no error in not crediting the inmate's allegations of imminent danger where the inmate had "a pattern of abusing judicial process by repeatedly filing frivolous actions" and where the claims of imminent danger in the current pleadings were substantially similar to prior pleadings in that they set "forth [a] myriad [of] vague, generalized, and unsupported claims." Id.
After reviewing the allegations contained in the Amended Petition, we agree with the Department that Brown has not sufficiently and credibly alleged imminent serious danger of bodily injury. Here, Brown has made the following allegations of injury as a result of the conditions in which he is housed: his sinuses clog and become infected, which damage his ability to smell and taste; he is prevented "from getting a deep satisfying breath," (Amended Petition ¶ 28); he has wheezing sounds in his lungs, a sore throat, and an increased production of mucus, which results in his coughing up blood; he is in ongoing "danger of his illnesses progressing, premature death, cancer, irreparable lung damage, contracting c[h]ronic bronchitis (assuming he does not already have it), or some other type of serious re[s]piratory disease," (Amended Petition ¶ 29); his liver disease, Hepatitis C, has been affected, as evidenced by the multiple orange or yellow dots on his skin and the manifestation of other Hepatitis C symptoms; and he has and continues to suffer extreme pain and discomfort as a result of these conditions. (Amended Petition ¶¶ 27-29, 33-34.)
With regard to Brown's allegations of the danger that his medical conditions will progress resulting in premature death, such allegations are not evidence of imminent danger as defined by our Supreme Court in Capitolo, 508 Pa. at 379, 498 A.2d at 809. Additionally, these allegations are the same or similar to those Brown made in the cases cited by the Department, Brown v. Beard, 2010 U.S. Dist. LEXIS 28352 (E.D. Pa., March 25, 2010) and Brown v. Beard, 492 F. Supp. 2d 474 (E.D. Pa. 2007), which the federal district court rejected as not demonstrating imminent danger. Moreover, Brown's averments that: his sinuses are clogged, preventing him from smelling and tasting his food; he has a sore throat and wheezing sounds in his lungs; and he is prevented "from getting a deep satisfying breath," (Amended Petition ¶ 28), even if credited, do not rise to the level of serious bodily injury necessary to retain his IFP status.
Finally, we conclude that Brown's allegations regarding his coughing up blood and the aggravation his Hepatitis C do not represent credible allegations of danger of serious bodily injury that "reasonably appear to be[] threatening to occur immediately, [or are] near at hand, [or are] impending," i.e., are immediate, Capitolo, 508 Pa. at 379, 498 A.2d at 809. First, we note that in Brown v. Beard, 2010 WL 4810615 *3 (W.D. Pa. 2010), Brown asserted that "the lack of ventilation and air conditioning in the restricted housing unit . . . have caused his lungs to be painful at times and he coughs up mucous that sometimes has speckles of blood in it. He further complains of headaches, watery eyes and changes in his voice." Id. The district court rejected these allegations, which are similar to those Brown asserts in this matter, stating that the allegations "simply do not rise to the level of imminent danger under the [Federal] statute." Id. More importantly, given Brown's long history of abusive litigation in the Courts of Common Pleas throughout this Commonwealth, this Court, and the Federal Courts, and the generalized nature of Brown's claims, we agree with the Department's argument that this Court is not required to accept these allegations as true, pursuant to City of Philadelphia, 331 Fed. Appx. at 900 (quoting Gibbs, 160 F.3d at 967). Here, Brown has not offered anything in his Amended Petition to collaborate his bare assertions, such as medical documentation, which, given his history of abusive litigation, we conclude is necessary for this Court to accept such allegations as credible.
This magistrate's recommendation was adopted by the district court in Brown v. Beard, 2010 WL 4810658 (W.D. Pa. 2010).
Our research has shown that Brown has filed well over twenty pro se matters in which he challenges the conditions in which he is housed and/or the medical treatment he has received for various alleged ailments. The matters have been filed in various Courts of Common Pleas, this Court, and in the Federal Courts throughout the country. See, e.g., Brown v. James, 822 A.2d 128 (Pa. Cmwlth. 2003) (setting forth a partial history of Brown's prison conditions litigation); Brown v. Blaine, 185 Fed. Appx. 166 (3d Cir. 2006) (same). With few exceptions, these matters have been dismissed as being frivolous, without merit, or for not demonstrating that Brown was in imminent danger of serious bodily injury. Indeed, even the United States Supreme Court has addressed Brown's abusive litigation, ordering that, "[a]s [Brown] has repeatedly abused this Court's process, the Clerk is directed not to accept any further petitions in noncriminal matters from petitioner unless the docketing fee required . . . is paid and [the] petition [is] submitted in compliance with [the rules]." Brown v. Pennsylvania Department of Corrections, 555 U.S. 1166 (2009).
Because we conclude that Brown has not made credible allegations that he is in imminent danger of serious bodily injury, we revoke Brown's IFP status. However, pursuant to Lopez, we will not dismiss the Amended Petition at this point, but will provide Brown an opportunity to pay the filing fees and costs associated with filing the Amended Petition and Application for Special Relief that he otherwise would have had to pay absent the grant of IFP status. Accordingly, we will provide Brown with thirty days from this Court's Order to pay the court fees and costs associated with this matter. If Brown does not pay those costs and fees within that time period, the Amended Petition will be dismissed pursuant to Section 6602(f). Lopez, ___ A.3d at ___, ___, slip op. at 9, 11.
II. Application for Special Relief
On November 21, 2011, Brown filed the Application for Special Relief alleging that the Department is violating his 8th Amendment rights by failing to provide him with adequate ventilation and heating, which has aggravated his recently diagnosed Chronic Obstructive Pulmonary Disease (COPD). In addition, Brown incorporates the statement of facts from the Amended Petition into the Application for Special Relief. Brown contends that his right to relief is clear and that he will likely prevail on the merits of his application because the 8th Amendment provides that prison officials should "not house inmates under conditions that deprive them of the need for some degree of ventilation and fresh air. (Caldwell v. Luzerne Corrections Facility Management Employees, (M.D. Pa. 2010))," (Application for Special Relief ¶ 3(b)), and the failure to provide such ventilation constitutes cruel and unusual punishment. Brown argues that, because of his COPD, "he should avoid concentrated exposure to fumes, odors, dusts, and poor ventilation (etc.) See Hurley v. Astrue, 714 F.Supp.2d 888, 900 (N.D. Ill. 2010)" (holding in a social security disability case, the administrative law judge properly considered a position for an asthmatic applicant whose physician told him to avoid these conditions). (Application for Special Relief ¶ 3(c).) He asserts that, unless this Court grants a preliminary injunction, he will suffer immediate and irreparable harm that cannot be compensated for in money damages. Brown then describes each of the medical conditions that may encompass a diagnosis of COPD, i.e., asthma, acute bronchitis, clinical pneumoncosis, bussinosis, and emphysema, and the symptoms of each condition. Brown alleges that he has been placed on medication to treat his COPD and "simply needs relief from the condition in order to check, if possible at this point, any further worsening of his health caused by the inadequate/no ventilation." (Application for Special Relief ¶ 4(g).) According to Brown, the Department is aware of his medical conditions, has taken no steps to remedy them, or move him to a better location and, in fact, has taken steps to worsen his condition, for which he has filed multiple grievances concerning the ventilation problems. Finally, Brown argues that greater injury will result from refusing the injunction than from granting it because "the present suffering of [Brown] and his potential suffering if his conditions worsen to the point where he is not able to breathe on his [own] or death are enormous" and the Department's "'suffering' . . . will consist of remov[ing Brown] from the offending conditions or repairing the conditions - something that the Department [is] . . . obligated to do by law." (Application for Special Relief ¶ 5.) Accordingly, Brown requests a "preliminary injunction enjoining the Department . . . from housing [him] in a cell not adequately ventilated in accord with [the] applicable standards of the American Corrections Association." (Application for Special Relief ¶¶ 2-5, Wherefore clause.)
We note that Brown again cites to the regulation at 37 Pa. Code § 95.226 and cites to the regulations at 37 Pa. Code § 95.248 and 55 Pa. Code §§ 2800.86 and 2800.88 as support for his claim; however, these regulations apply to county correctional institutions and assisted living centers, not state correctional institutions. (Application for Special Relief ¶¶ 3 (a), (f).)
The Department filed its Special Relief PO on December 16, 2011, asserting that the Application for Special Relief's factual allegations fail to support the grant of a preliminary injunction. The Department notes that the Application for Special Relief echoes an earlier request for a preliminary injunction Brown filed with this Court on April 4, 2011, which this Court aptly characterized as follows:
[Brown's] Petition for Writ of Mandamus alleges that as a result of his confinement in the restricted housing unit (RHU), which lacks proper ventilation and climate control, he has at times suffered aggravation of his pre-existing asthma and liver disease. He seeks a change in his housing status and unspecified medical care. In his [first] Petition for Preliminary Injunction he seeks to enjoin his continued housing in the RHU and denial of medical care.(Special Relief PO ¶ 16 (first alteration added) (quoting Brown v. Department of Corrections, (Pa. Cmwlth. No. 93 M.D. 2011, filed May 13, 2011) (Brown II).) The Department contends that the Application for Special Relief "is long on generalities and short on specifics" and "is mainly a review of information [Brown] has gathered concerning [the] medical conditions he thinks he has and/or that he thinks he may develop in the future." (Special Relief PO ¶¶ 17-18.) According to the Department, Brown concedes in paragraphs 4(a) and 4(g) of the Application for Special Relief that the Department is providing him with medical care for his respiratory ailments. The Department maintains that this Court should abide by its ruling on Brown's first preliminary injunction request in this matter and conclude that:
A preliminary injunction is designed to preserve the subject of the controversy and maintain the status quo until the legality of the challenged conduct can be determined. Greater Nanticoke Area Educ[ation] Ass[ociation v. Greater Nanticoke Area School District], 938 A.2d 1177 (Pa. Cmwlth. 2007) [(citations omitted)]. [Brown's] averments do not establish that an injunction is necessary to prevent immediate and irreparable harm, that an injunction will maintain the status quo, or that his right to relief is clear and the wrong [is] manifest. Id.(Special Relief PO ¶ 20 (quoting Brown II).) The Department additionally asserts that Brown has not stated a cause of action as a matter of law because mandamus can be used only to compel the performance of a ministerial duty "where the plaintiff establishes a clear legal right to relief and a corresponding duty to act on the part of the defendant. Taglienti v. Department of Corrections, 806 A.2d 988[, 991] (Pa. Cmwlth. 2002)." (Special Relief PO ¶ 22.) According to the Department, Brown's requested relief, to be moved to a different unit, is not a duty that is ministerial in nature because "[d]ecisions regarding inmate classification, placement and conditions of confinement are matters of administrative discretion and, therefore, are not ministerial in nature. Johnson v. Horn, 782 A.2d 1073[, 1075] (Pa. Cmwlth. 2001)," (Special Relief PO ¶ 25.) Consequently, the Department argues that Brown is unlikely to be successful on the merits of his Amended Petition and, therefore, he is not entitled to a preliminary injunction. (Special Relief PO ¶¶ 15-27.)
We begin, as we did in our May 13, 2011, Order dismissing Brown's first petition for a preliminary injunction, by noting that "[a] preliminary injunction is designed [']to preserve the subject of the controversy in the condition in which it is when the order is made, it is not to subvert, but to maintain the existing status quo until the legality of the challenged conduct can be determined on the merits.[']" Sheridan Broadcasting Networks, Inc. v. NBN Broadcasting, Inc., 693 A.2d 989, 994 (Pa. Super. 1997) (quoting In re Appeal of Little Britain, 651 A.2d 606, 611 (Pa. Cmwlth. 1994)). In order to obtain preliminary injunctive relief, the party seeking the relief must establish that: (1) "an injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages"; (2) "greater injury would result from refusing an injunction than from granting it, and, concomitantly, that issuance of an injunction will not substantially harm other interested parties in the proceedings"; (3) "a preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct"; (4) "the activity it seeks to restrain is actionable, that its right to relief is clear, and that the wrong is manifest, or, in other words, must show that it is likely to prevail on the merits"; (5) "the injunction [the party] seeks is reasonably suited to abate the offending activity"; and (6) the "preliminary injunction will not adversely affect the public interest." Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 573 Pa. 637, 646-47, 828 A.2d 995, 1001 (2003) (citations omitted). "There is . . . a distinction between mandatory injunctions, which command the performance of some positive act to preserve the status quo, and prohibitory injunctions, which enjoin the doing of an act that will change the status quo." Mazzie v. Commonwealth, 495 Pa. 128, 134, 432 A.2d 985, 988 (1981). Requests for a mandatory injunction are subject to "greater scrutiny . . . and . . . should be issued more sparingly than injunctions that are merely prohibitory. Thus, in [considering whether to] grant . . . a mandatory injunction, we have insisted that a clear right to relief in the plaintiff be established." Id. (emphasis added).
After reviewing the allegations, we agree with the Department that Brown's averments of the need for the preliminary injunction to prevent immediate and irreparable harm are not sufficient, even accepting them as true, to overcome the heightened level of scrutiny required for a mandatory injunction. Mazzie, 495 Pa. at 134, 432 A.2d at 988. Although Brown has alleged that his COPD and other medical ailments are aggravated by the poor ventilation in the RHU, he acknowledges that he is receiving medical treatment and prescriptions for his medical ailments. (Application for Special Relief ¶¶ 4(a), 4(g).) Moreover, we agree with the Department that there is a question whether Brown's right to relief, based on his current allegations, is clear in this matter where, inter alia, this Court has held in the past that the decisions regarding inmate classification and placement are matters of administrative discretion and, therefore, not ministerial in nature. Johnson, 782 A.2d at 1075. Because we must view the allegations under the heightened scrutiny of a party seeking a mandatory injunction, we conclude that Brown's factual allegations fail to support the issuance of a mandatory preliminary injunction in his favor. Thus, pursuant to Section 6602(e)(2) of the PLRA, which permits a Court to dismiss at any time any prison conditions litigation that, inter alia, fails to state a claim upon which relief may be granted, we dismiss Brown's Application for Special Relief with prejudice.
Additionally, the Department asserts that the Application for Special Relief should be dismissed under Section 6602(f) because Brown is an abusive litigator and has not made credible allegations of imminent danger of serious bodily injury. Moreover, the Department reiterates that, pursuant to City of Philadelphia, this Court is not required to accept Brown's allegations as true because of the generalized nature of those allegations and his history as an abusive litigator and, therefore, we should dismiss the Application for Special Relief with prejudice. (Special Relief PO ¶¶ 28-29, 31-32.) Because we conclude that the factual allegations do not support the issuance of a mandatory injunction, we need not address this alternate reason. --------
For the forgoing reasons, we sustain the Department's Mandamus PO and Special Relief PO. Brown's Application for Special Relief is hereby dismissed with prejudice. Brown is directed to pay the fees and costs associated with the Amended Petition within thirty days of this Court's Order and the failure to do so will result in the dismissal of the Amended Petition with prejudice in accordance with Section 6602(f).
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, March 29, 2012, the Preliminary Objections filed by the Pennsylvania Department of Corrections and John Wetzel, Secretary of Corrections (Department) to the Amended Petition for Review/Petition for a Writ of Mandamus (Amended Petition) and the Application for Special Relief in the Nature of Preliminary Injunction (Application for Special Relief) filed by Alton D. Brown are hereby SUSTAINED, and the Application for Special Relief is hereby DISMISSED with prejudice. Brown is hereby directed to pay the fees and costs associated with filing the Amended Petition within thirty (30) days of this Court's Order and the failure to do so will result in the dismissal of the Amended Petition with prejudice in accordance with Section 6602(f) of the Prison Litigation Reform Act, 42 Pa. C.S. § 6602(f).
/s/ _________
RENÉE COHN JUBELIRER, Judge