Opinion
No. 867 C.D. 2014
01-15-2015
Sehu-Kessa-Saa-Tabansi, Appellant v. John E. Wetzel, Secretary of Corrections
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Sehu-Kessa-Saa-Tabansi, a/k/a Alfonso Percy Pew (Tabansi), pro se, filed a Complaint, pursuant to 42 U.S.C. § 1983, against various Department of Corrections' (DOC) employees, including John E. Wetzel, Secretary of Corrections, in the Court of Common Pleas of Centre County (trial court) on November 18, 2013. In conjunction with the Complaint, Tabansi also filed a Petition to Proceed in Forma Pauperis (Petition to Proceed IFP) on the same date. On December 17, 2013, the trial court denied Tabansi's Petition to Proceed IFP, pursuant to Section 6602(f) of the Prisoner Litigation Reform Act (Pennsylvania PLRA). Tabansi then filed a motion for reconsideration, which the trial court denied on January 14, 2014. On April 23, 2014, the trial court dismissed Tabansi's Complaint for failure to pay the required filing fees. On appeal, Tabansi argues that the trial court erred in dismissing his Complaint and denying his Petition to Proceed IFP without considering: (1) whether he was in imminent danger of serious bodily injury; and (2) the extrinsic evidence submitted in support of his Petition to Proceed IFP. Discerning no error, we affirm.
42 Pa. C.S. § 6602(f). Section 6602(f) 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.
Tabansi is currently incarcerated at the State Correctional Institution at Rockview (SCI-Rockview). Although Tabansi makes numerous allegations in his Complaint, the only issue presently before this Court is whether Tabansi has made sufficient allegations to demonstrate that he is subject to imminent danger of serious bodily injury if the Petition to Proceed IFP is not granted; therefore, we only address the allegations in the Complaint relating to that issue.
From what we can discern, the Complaint alleges, inter alia, that Tabansi is under imminent danger of serious bodily injury due to the physical conditions of his prison cell at SCI-Rockview. (Compl. ¶ 1.) Specifically, Tabansi alleges that the front of the cell is made of glass with only a few half inch holes to allow breathing. (Compl. ¶ 1.) Tabansi avers that the small holes obstruct the direct flow of air and his volume of breathing. (Compl. ¶ 1.) Moreover, the Complaint alleges that Tabansi has a history of panic and anxiety attacks and that the limited air capacity in the cell exacerbates these afflictions. (Compl. ¶ 9.)
The Complaint also alleges that the cell is unsanitary, without windows or natural light, lacks ventilation or heating, is constantly illuminated, and allows in cold temperatures during the winter months. (Compl. ¶¶ 2-3, 5, 7, 13-14, 19.) The Complaint avers that, due to the cell conditions, Tabansi suffers from coughing, sneezing, running nose, chest cold, and phlegm. (Compl. ¶ 15.) Finally, the Complaint alleges that Tabansi is in danger because he is suicidal, that the conditions of the cell exacerbate his mental illnesses and suicidal tendencies, and that the lack of proper supervision places him at risk of harming himself. (Compl. ¶¶ 10, 19.) Tabansi seeks injunctive relief that would close his cell-block and prevent the use of his glass cage cell.
In support of his Complaint and his Petition to Proceed IFP, Tabansi filed a number of documents. On January 7, 2014, he filed two signed declarations and an envelope containing the alleged contents from his prison cell's vent and floor. On January 7, 2014, Tabansi also filed two "Inmate's Request to Staff Member" forms, two sick call forms, and two official inmate grievance forms, which were all submitted by Tabansi to DOC correctional officers in an attempt to verify his allegations regarding the physical conditions of the cell and his medical afflictions. On January 13, 2014, Tabansi filed the signed affidavits of three other prisoners.
Tabansi also filed several supporting documents after the trial court denied his motion for reconsideration of its denial of his Petition to Proceed IFP. On January 28, 2014, Tabansi filed four "Inmate Request to Staff Member" forms, one "Facility Manager's Appeal Response" form, and a letter from his mother supporting his allegations. On February 13, 2014, Tabansi filed one letter from the Pennsylvania Prison Society, signed affidavits of three additional prisoners, two letters from Just Detention International, and two "support letters." Because these documents were filed after the trial court denied Tabansi's motion for reconsideration, we will not consider them in our analysis. However, we note that none of these filings contain any medical documentation supporting Tabansi's claims that his alleged medical afflictions are caused by the physical conditions of his prison cell.
Tabansi's failure to pay the required filing fees resulted in the trial court dismissing his Complaint on April 23, 2014. (Trial Ct. Op. at 2.) In support of its Order dismissing the Complaint, the trial court issued a Rule 1925(a) Opinion. In its opinion, the trial court explained that it denied Tabansi's Petition to Proceed IFP based on its determination that Tabansi is an abusive litigant under Section 6602(f) of the Pennsylvania PLRA. (Trial Ct. Op. at 1-2.) The trial court stated that the matters complained of by Tabansi "on appeal appear to be substantive issues related to his Section 1983 Complaint." (Trial Ct. Op. at 2.) Moreover, the trial court stated that it did not consider any documents received from Tabansi because he failed to pay his filing fees. (Trial Ct. Op. at 2.) The trial court concluded that the Complaint was not properly before it because Tabansi did not comply with its order denying Tabansi's Petition to Proceed IFP and requiring him to pay the necessary filing fees in order to avoid dismissal. (Trial Ct. Op. at 2.) Tabansi now appeals to this Court.
This Court's scope of review of a trial court's denial of an in forma pauperis petition is limited to determining "whether constitutional rights were violated, or whether the trial court abused its discretion or committed an error of law." Williams v. Syed, 782 A.2d 1090, 1093 n.4 (Pa. Cmwlth. 2001).
On appeal, Tabansi argues that the trial court erred in dismissing his Petition to Proceed IFP without addressing whether he is in imminent danger of serious bodily injury, which would require the trial court to grant his request. In particular, Tabansi contends that the trial court erred in not considering the extrinsic evidence he submitted. Moreover, Tabansi cites to federal case law to argue that a lack of proper ventilation can satisfy the imminent danger exception and that sworn affidavits are allowable to support a claim of imminent danger.
Section 6602 of the Pennsylvania PLRA allows the waiver of filing fees for indigent prisoners seeking to bring "prison conditions litigation." However, under Section 6602(f) of the Pennsylvania PLRA, "[i]f 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." 42 Pa. C.S. § 6602(f). Despite the "three strikes rule" of Section 6602(f), a court may not "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." Id. In Jae v. Good, 946 A.2d 802, 809 (Pa. Cmwlth. 2008), this Court addressed the constitutionality of the "three strikes rule" set forth in Section 6602(f), stating that the rule "does not prevent prisoners from filing any number of civil actions challenging prison conditions. It only restricts their ability to pursue such actions [IFP]." Thus, although the "three strikes rule" has the effect of revoking a prisoner's IFP status, a prisoner may still proceed with prison conditions litigation as long as he pays the required filing fees and costs and the action does not violate Section 6602(e) of the Pennsylvania PLRA. Lopez v. Haywood, 41 A.3d 184, 188 (Pa. Cmwlth. 2012).
42 Pa. C.S. § 6601. Section 6601 defines "Prison conditions litigation" as follows:
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.
42 Pa. C.S. § 6602(e)(2). Section 6602(e)(2) of the Pennsylvania PLRA provides that:
Notwithstanding any filing fee which has been paid, the court shall dismiss prison conditions litigation at any time . . . 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 . . . .
There is no dispute that Tabansi is an abusive litigator under Section 6602(f). See Pew v. Mechling, 929 A.2d 1214, 1217-18 (Pa. Cmwlth. 2012) (confirming that because Pew, a/k/a Tabansi, had filed seven previous civil actions which have been dismissed for being frivolous, malicious, etc., he is subject to the "three strikes rule"). Therefore, because Tabansi has three strikes under Section 6602(f) of the Pennsylvania PLRA, the only way Tabansi can avoid revocation of his IFP status is by seeking injunctive relief through setting forth a "credible allegation that [he] is in imminent danger of serious bodily injury." 42 Pa. C.S. § 6602(f) (emphasis added). Under this Court's precedent, for a danger to be imminent, "the danger must be, or must reasonably appear to be, threatening to occur immediately, near at hand, and impending." Brown v. Beard, 11 A.3d 578, 581 (Pa. Cmwlth. 2010) (quotation omitted).
In Brown v. Department of Corrections, 58 A.3d 118, 123 (Pa. Cmwlth. 2012) (Brown I), this Court interpreted the "credible allegation" requirement of the Section 6602(f) exception to the revocation of IFP status. We determined that, in order to satisfy the "credible allegation" requirement, the supporting averments in the complaint "must go beyond being merely [rational] and conceivable and must possess the additional characteristics of being reliable and convincing." Id. Because prisoners subject to the "three strikes rule" have a history of abusive litigation, we concluded that the Court is not required to accept the allegations as true, and that the allegations must be substantiated "with some form of evidence extrinsic to the complaint itself, such as medical documentation." Id.
In Brown I, the prisoner's complaint alleged that the ventilation system in his cell was inadequate and that the air was "contaminated with a high concentration of dust, dirt, and tobacco smoke." Id. at 120. As a result of continually breathing the "contaminated" air, the prisoner alleged that he suffered from shortness of breath and wheezing, his sinuses were clogged, his liver disease was aggravated, and he had coughed up blood on at least one occasion. Id. However, because the prisoner failed to provide medical documentation or any other extrinsic evidence to substantiate his allegations, we held that he had "failed to credibly allege imminent danger of serious bodily injury" under Section 6602(f) of the Pennsylvania PLRA. Id. at 123-24.
Recently, in the unreported decision of Tabansi v. Director of Correctional Industries-Doe (Pa. Cmwlth., No. 392 C.D. 2013, filed November 19, 2013) (Tabansi I), we addressed the credibility of the allegations of a different complaint brought by Tabansi. In that complaint, Tabansi also alleged that there was inadequate ventilation in SCI-Rockview and that the air contamination made him feel sick, nauseated, have headaches, and an upset stomach. Tabansi I, slip op. at 2. We determined that Tabansi had "set forth only bare, generalized assertions" and that he had failed to "attach any medical documentation or extrinsic evidence to substantiate the proposition that SCI-Rockview's air and/or water was contaminated and that his physical symptoms were causally related to the alleged contamination." Id., slip. op. at 5. Therefore, relying on Brown I, we concluded that Tabansi had failed to credibly allege that he was in danger of serious bodily injury. Id.
Here, we similarly conclude that Tabansi has failed to provide sufficient extrinsic evidence to credibly allege that he is in imminent danger of serious bodily injury. Tabansi attempted to submit extrinsic evidence by providing signed affidavits from three other prisoners, which generally support the Complaint's contention that the physical conditions of the prison cells make it difficult to breathe. However, given Tabansi's history of setting forth similar meritless allegations and the fact that the affidavits basically repeat the Complaint's allegations verbatim, we conclude that the extrinsic evidence provided by Tabansi is neither convincing nor reliable. Brown I, 58 A.3d at 123. Moreover, the affidavits provided by Tabansi "set forth only bare, generalized assertions" and do not appear credible due to the fact that the other prisoners are biased against the prison establishment and also have an interest in seeking the closure of Tabansi's cell-block. Tabansi I, slip op. at 5. Further, the various "Inmate's Request to Staff Member" forms, official grievance forms, signed declarations, and sick call forms are not credible or convincing because they were filled out by Tabansi, and—although they attempt to provide verification of the Complaint's allegations—are incomplete and unverified by any DOC correctional officers. Finally, because this Court does not have the technical expertise to evaluate the alleged contents from Tabansi's prison cell for any harmful substances, we are unable to determine to what extent, if any, those contents support Tabansi's allegations.
Tabansi has failed to substantiate his Complaint with any extrinsic evidence to demonstrate that the air levels in his prison cell actually impede breathing or medical documentation to show that his breathing or mental health are negatively affected by the conditions of the cell. Thus, we hold that Tabansi has not credibly alleged that he is in imminent danger of serious bodily injury under Section 6602(f) of the Pennsylvania PLRA.
While we recognize the high burden faced by prisoners in meeting the exception to Section 6602(f) of the Pennsylvania PLRA, this high burden is necessary in order to deter frivolous lawsuits. Jae, 946 A.2d at 809. Further, this high burden does not preclude Tabansi from filing a Complaint in this matter, but only requires him to pay the required filing fees and costs in order to proceed with the litigation. Lopez, 41 A.3d at 188.
Lastly, Tabansi relies on several federal cases to support his argument. First, Tabansi cites to the United States Court of Appeals for the Third Circuit case of Brown v. Secretary Pennsylvania Department of Corrections, 486 Fed. Appx. 299, 301-02 (3d Cir. 2012) (holding that ventilation problems which result in breathing and other health problems can meet the imminent danger standard), to argue that the ventilation problems in his cell constitute an imminent danger. Second, Tabansi argues that he has provided sufficient evidence to demonstrate that an imminent danger exists based on the Third Circuit's decision in Gibbs v. Roman, 116 F.3d 83, 86-87 (3d Cir. 1997) (holding that the court may rely on sworn affidavits or depositions to decide a contested issue of imminent danger).
As we noted in Brown I, where the appellant made similar arguments, "the Third Circuit's decisions . . . are not binding upon us and, importantly, have interpreted the Federal [Prison Litigation Reform Act (Federal PLRA)] as opposed to the Pennsylvania PLRA." Brown I, 58 A.3d at 122. Under the pertinent section of the Federal PLRA, a prisoner who has already brought three meritless lawsuits is unable to bring an action IFP "unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). The Third Circuit has concluded that, under Section 1915(g) of the Federal PLRA, 28 U.S.C. § 1915(g), the district courts must "evaluate the allegations in a complaint filed by a pro se prisoner . . . under our liberal pleading rules, construing all allegations in favor of the complainant and crediting those allegations of 'imminent danger' that have gone unchallenged." Gibbs v. Cross, 160 F.3d 962, 966 (3d Cir. 1998) (citation omitted). However, under the Federal PLRA, courts are not prevented "from discrediting factual claims of imminent danger that are clearly baseless, i.e., allegations that are fantastic or delusional and rise to the level of the irrational or wholly incredible." Id. at 967.
Unlike the Federal PLRA, however, the Pennsylvania PLRA requires that a prisoner seeking preliminary injunctive relief make a credible allegation that he or she is in imminent danger. 42 Pa. C.S. § 6602(f). As we determined in Brown I, "[o]stensibly, this requirement under the Pennsylvania PLRA is a more onerous burden than the pleading standard for the Federal PLRA, which simply obliges a prisoner to plead facts that rise above delusions and meet a basic level of plausibility." Brown I, 58 A.3d at 122-23. Since the language of the federal and Pennsylvania statutes differ, a different standard applies to the Pennsylvania PLRA and we are not bound by the Third Circuit's decisions. Id.
Accordingly, we conclude that Tabansi has failed to credibly allege imminent danger of serious bodily injury under the Pennsylvania PLRA and that the trial court did not abuse its discretion or commit an error of law in denying his Petition to Proceed IFP.
Since Tabansi did not credibly allege that he was in imminent danger, the trial court did not abuse its discretion by not specifically addressing this issue. In addition, Tabansi's Statement of Errors Complained of on Appeal (Statement of Errors) objected to the trial court not considering the additional documents submitted by Tabansi, while not specifically objecting to any determination made by the trial court regarding whether Tabansi was in imminent danger. Because of the ambiguousness of the Statement of Errors, the trial court cannot be faulted for not addressing whether Tabansi was in imminent danger of serious bodily injury in its Rule 1925(a) Opinion. Moreover, the Rule 1925(a) Opinion does address the trial court's decision not to consider the additional documents submitted, which Tabansi specifically raised in the Statement of Errors. --------
The trial court's Order dismissing Tabansi's Complaint for failure to pay the required filing fees is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, January 15, 2015, the Order of the Court of Common Pleas of Centre County, entered in the above-captioned matter, is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge