Opinion
No. 392 C.D. 2013
11-19-2013
Sehu Kessa Saa Tabansi a/k/a Alfonso Percy Pew, Appellant v. Director of Correctional Industries - John/Jane Doe, John Doe, Jane Doe, Superintendent State Correctional Institution Rockview - Doe, Deputy Superintendent Facility Management - Doe, Deputy Superintendent Centralized Services - Doe, Health Care Administrator - Doe, Safety Inspector Manager - Doe, G. Black - Unit Manager, John Wetzel - Secretary of Corrections, Shirley Moore Smeal - Executive Deputy Secretary, Regional Deputy - Doe, Director Bureau Security - Doe, Director Bureau Health Care - Doe, SCI Rockview Security Office, Central Office Security Division
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Sehu Kessa Saa Tabansi, also known as Alfonso Percy Pew (Pew), appeals pro se from the February 27, 2013 order of the Centre County Court of Common Pleas (trial court), which dismissed Pew's complaint pursuant to the "three strikes" provision of section 6602(f) of the statute commonly known as the Prison Litigation Reform Act (PLRA), 42 Pa.C.S. §6602(f). We affirm in part and vacate and remand in part.
Facts and Procedural History
On February 13, 2013, Pew filed an application to proceed in forma pauperis (IFP). On that same date, Pew also filed a complaint against named and unnamed officers and/or employees of the Department of Correctional Industries (DOC Defendants), asserting multiple civil rights violations and claims under the Pennsylvania Constitution and statutes. In this complaint, Pew alleged that he is an inmate at the State Correctional Institution at Rockview (SCI-Rockview), and that the DOC Defendants failed to inform him that its boiler plants violated environmental laws with respect to the burning of bituminous coal. (Complaint, p. 2.) Specifically, Pew averred that the DOC Defendants burned bituminous coal illegally and without proper filters and that he was exposed to toxic chemical emissions through water pollution and air contamination. According to the complaint, Pew voiced objections to prison authorities about the "smell," "fumes," and "ventilation" around "the G Building across from the Boiler house." Id. Pew also alleged that he "expressed symptoms of feeling sick, nauseated, fatigue, weak, headaches, [and having an] irritated stomach," but his psychiatrist documented the physical symptoms as stemming from mental illness. Id. at pp. 2-3. Ultimately, Pew asserted that he is in "imminent danger" because "the years of [his] exposure" are "unknown" and continued exposure into "the future ... can lead to death." Id. at p. 3. In the complaint's request for relief, Pew sought monetary damages and an injunction enjoining the DOC Defendants from burning bituminous coal in an illegal manner. Id. at 4.
By opinion and order docketed February 27, 2013, the trial court dismissed Pew's complaint, sua sponte, concluding that Pew has three or more "strikes" and that he failed to provide a credible allegation that he is in imminent danger of serious bodily injury. On March 1, 2013, the trial court entered an order revoking Pew's IFP status.
Pew does not challenge the trial court's authority to determine on its own prerogative whether a complaint credibly alleges imminent danger of serious bodily injury.
Discussion
On appeal, Pew contends that the trial court abused its discretion in dismissing his complaint because his exposure to the fumes and toxic waste constitutes imminent danger to his health and public safety.
Pursuant to section 6602(f) of the PLRA, a trial court can revoke a prisoner's IFP status if the prisoner filed three or more civil actions involving prison conditions and these civil actions were dismissed as frivolous, malicious, or for failure to state a claim. In pertinent part, section 6602(f) provides as follows:
(f) Abusive litigation. — If the prisoner has previously filed prison conditions litigation and:42 Pa.C.S. §6602(f) (emphasis added). Under section 6602(e)(2) of the PLRA, a court can dismiss prison conditions litigation when "[t]he 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." 42 Pa.C.S. §6602(e)(2).
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.
In 2007, this Court confirmed that Pew is an abusive litigator, who by that time had already accumulated "seven strikes" for filing frivolous lawsuits in the justice system. Pew v. Mechling, 929 A.2d 1214, 1217-18 & n.6 (Pa. Cmwlth. 2007). Because Pew has more than "three strikes" for purposes of the PLRA, the only way he can avoid revocation of his IFP status is if his complaint sets forth "a credible allegation that [he] is in imminent danger of serious bodily injury." 42 Pa.C.S. §6602(f).
In Brown v. Pennsylvania Department of Corrections, 58 A.3d 118 (Pa. Cmwlth. 2012), we interpreted the "credible allegation" requirement of the PLRA to mean that the complaint's "supporting averments must go beyond being merely rational and conceivable and must possess the additional characteristics of being reliable and convincing." Id. at 123. Along these lines, to set forth a "credible allegation," a prisoner must aver specific, well-pleaded facts with sufficient particularity, see Pa.R.C.P. No. 1019(b), and the complaint's supporting averments must be substantiated with some form of extrinsic evidence, such as medical or other supporting documentation. Brown, 58 A.3d at 123. In other words, vague, self-serving, conclusory, or speculative averments are insufficient to constitute a credible allegation as a matter of law. See id.
Like Pew, the prisoner in Brown was an abusive litigator for purposes of section 6602(f). The prisoner filed a complaint alleging that the prison's ventilation system was inadequate and caused him to inhale a high concentration of dust, dirt, and tobacco smoke. The prisoner alleged further that as a result of constantly breathing the foul air, his liver disease was aggravated, his sinuses clogged, and he experienced shortness of breath, wheezed, and coughed blood. On appeal from the trial court's dismissal of his complaint under the "three strikes" rule, this Court noted the prisoner's history of meritless litigation and the generalized nature of his claims and concluded that we were not required to accept his allegations as true. Instead, we held that in order to satisfy the "credible allegation" requirement, it was necessary that the prisoner substantiate his allegations with some form of extrinsic evidence. Id. at 124. Because the prisoner had not done so, we concluded that the prisoner failed to provide a credible allegation that he was in imminent danger of serious bodily injury and affirmed the trial court's decision.
Similar to the situation in Brown, Pew sets forth only bare, generalized assertions. In addition, Pew's complaint concedes that a psychiatrist attributed his physical symptoms as being the byproduct of mental illness and does not contain any averments to refute this diagnosis. More importantly, Pew did not 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. Following Brown, we conclude that Pew failed to set forth a credible allegation that he is in imminent danger of serious bodily injury.
For these reasons, we conclude that the trial court did not err in revoking Pew's IFP status. However, where the prisoner's IFP status has been revoked under section 6602(f), the proper procedure is to provide the prisoner with the opportunity to pay the required fees; if the prisoner is able to pay the fees, the case may proceed; if he is not, the case may be dismissed. Lopez v. Haywood, 41 A.3d 184, 188-89 (Pa. Cmwlth. 2012) (holding that an abusive litigant who loses IFP status may proceed by paying costs). Therefore, we vacate the trial court's order insofar as it dismissed Pew's complaint under section 6602(f) and remand in order for the trial court to afford Pew the opportunity to pay his filing fees and litigation costs. On remand, the trial court shall make arrangements to provide Pew with a list of costs and fees incurred in connection with this litigation, and may dismiss the case if Pew thereafter fails to pay these expenses.
In his appellate brief, Pew attaches as exhibits a newspaper article regarding SCI-Rockview's emission of bituminous coal, scientific/informative materials concerning "coal ash," and articles critical of the Environmental Protection Agency's stance on "coal ash." However, this Court may not consider these documents because they were not attached to the complaint or otherwise made part of the certified record. See Brandon v. Ryder Truck Rental, Inc., 34 A.3d 104, 106 n.1 (Pa. Super. 2011); Miller v. Department of Public Welfare, 513 A.2d 569, 570 n.5 (Pa. Cmwlth. 1986). --------
Accordingly, we affirm in part and vacate and remand in part.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 19th day of November, 2013, the February 27, 2013 order of the Centre County Court of Common Pleas is affirmed in part, vacated to the extent that it dismissed Pew's complaint, and this matter is remanded for further proceedings. On remand, the trial court shall order the Prothonotary of Centre County to compile a list of the filing fees and costs associated with this matter that Pew would have had to pay had he not been granted in forma pauperis status and to provide that information to Pew within 30 days of this Court's Order. The trial court shall direct Pew to pay those fees and costs within 30 days of receiving the information from the Prothonotary. If Pew fails to pay the fees and costs, the trial court may enter an order dismissing his complaint with prejudice. The Chief Clerk's office is directed to mail a copy of this opinion and order to Debra C. Immel, the Prothonotary of Centre County.
Jurisdiction relinquished.
/s/_________
PATRICIA A. McCULLOUGH, Judge