IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alfonso Percy Pew, Appellant v. No C.D Submitted August 1, 2014 Pennsylvania Department of Corrections, Secretary John E. Wetzel Superintendent Marirosa Lamas, et al. BEFORE HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED November 12, 2014 On August 2, 2013, the Centre County Court of Common Pleas (Trial Court) issued an opinion and order in which it dismissed Alfonso Percy Pew, a.k.a. Sehu-Kessa-Saa Tabansi (Appellant), as a party to an action filed along with Wesley Chance against several supervisors at the State Correctional Institution at Rockview (SCI-Rockview) and the Department of Corrections (DOC) (collectively Appellees). The Trial Court concluded that Appellant was not entitled to in forma pauperis status under Section 6602(f) of the Prison Litigation Reform Act (PLRA), 42 Pa.C.S. 6602(f), commonly known as the three strikes rule. The Trial Court also concluded that Appellant did not fall within the imminent danger exception to the PLRA requirement that an inmate with a history of filing frivolous prison

2 conditions litigation must pay court costs in order to file additional actions. Id. The order denying Appellant in forma pauperis status and dismissing him from the action became final on November 26, 2013 and Appellant appealed to this Court for review. 1 We affirm. On appeal, Appellant argues that he qualified for the imminent danger exception to the three strikes rule because his mental health issues were exacerbated by continued solitary confinement and he was in danger of committing suicide. 2 Under Subsection 6602(e)(2) of the PLRA, 42 Pa. C.S. 6602(e)(2), a court shall dismiss prison conditions litigation at any time if the court determines that 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. Section 6602(f) of the PLRA provides 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 1 Our review is limited to a determination of whether constitutional rights were violated, whether an error of law was committed, or whether the trial court abused its discretion. Pew v. Mechling, 929 A.2d 1214, 1217 n.4 (Pa. Cmwlth. 2007). 2 With considered brevity and a liberal use of block quotations, Appellees argue that federal procedural law bars Appellant from proceeding in forma pauperis. We therefore refer Appellees to Jae v. Good, 946 A.2d 802 (Pa. Cmwlth. 2008), appeal denied, 959 A.2d 930 (Pa.), certiorari denied, 555 U.S (2009), and decline to further address their arguments. 2

3 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. 42 Pa. C.S. 6602(f). Appellant is an abusive litigator; he has had more than three prior actions dismissed pursuant to Subsection 6602(e)(2) of the PLRA, 42 Pa. C.S. 6602(e)(2). See, e.g., Pew v. Mechling, 929 A.2d at 1218 & n.6; Pew v. Director of Correctional Industries John/Jane Doe et al., (Pa. Cmwlth. No. 392 C.D. 2013, filed November 19, 2013); Pew v. Pennsylvania Department of Corrections, et al., (Pa. Cmwlth. No. 431 C.D. 2013, filed November 9, 2013). As a result of Appellant s status as an abusive litigator, the provisions in subsection (b) and (f) of Pennsylvania Rule of Civil Procedure 240, Pa. R.C.P. No. 240, that provide litigants with scant financial resources access to the courts are inapplicable unless Appellant is in imminent danger of serious bodily injury. 42 Pa. C.S. 6602; see also Pa. R.C.P. No. 240(j)(1). For a prisoner with a history of abusive litigation to qualify for the exception to the three strikes rule and receive in forma pauperis status, the text of Section 6602(f)(2) of the PLRA requires that the allegations of danger are both imminent and credible. 42 Pa.C.S. 6602(f)(2). Our Supreme Court has defined imminent as danger that must be, or must reasonably appear to be, threatening to occur immediately, near at hand, and impending. Commonwealth v. Capitolo, 498 A.2d 806, 809 (Pa. 1985). This Court has defined a credible allegation as one that goes beyond being merely rationale [sic] and conceivable and must possess the additional characteristics of being reliable and convincing. 3

4 Brown v. Pennsylvania Department of Corrections, 58 A.3d 118, 123 (Pa. Cmwlth. 2012). In Brown, this Court concluded that to satisfy the credible standard in the PLRA, a prisoner must do more than baldly allege that the conditions of confinement create an imminent danger of serious bodily harm. Id. at 124. We held that this Court need not accept [the inmate s] allegations, on their face, as credible allegations of imminent danger, and that because the inmate had failed to substantiate his averments of imminent danger by attaching medical documentation, or any other form of extrinsic evidence for that matter, to his pro se complaint, the inmate had failed to credibly allege imminent danger of serious bodily injury for purposes of the Pennsylvania PLRA. Id. Appellant here alleges that the abusive use of solitary confinement for retaliatory purposes was causing his mental state to descend into a suicidal crisis. While we disagree with the Trial Court s conclusion that imminent danger of serious bodily injury cannot be shown when the alleged danger comes from an inmate s own suicidal impulses, we must agree that Appellant is not entitled to in forma pauperis status. Appellant has not provided any documentation to substantiate his claim that he has been diagnosed with a mental illness and that his mental health has deteriorated to a point of crisis. Appellant has not met the credible allegation standard set by the PLRA. This Court addressed allegations similar to those made by Appellant here in Lopez v. Haywood, 41 A.3d 184 (Pa. Cmwlth. 2012). In Lopez we examined an argument made by a prisoner who alleged that he was in imminent danger because he was on the verge of a mental breakdown as a result of being housed with mentally ill prisoners in the [Restricted Housing Unit]. Id. at 189 4

5 (emphasis in the original). We concluded in Lopez that the danger alleged was speculative. Critical to our analysis in Lopez was the fact that the inmate had been released from the Restricted Housing Unit and while it was possible that he may have been returned to the Restricted Housing Unit at some time in the future, any alleged current risk of imminent harm had ceased. 41 A.3d at 189. Appellant s allegations also suggest a possible event without any demonstration that the event is probable; they are speculative. Importantly, like the inmate in Lopez, Appellant no longer resides at SCI-Rockview, and although it is possible that he may be returned to SCI-Rockview and housed in the same conditions, this possibility is not near at hand. 3 See, e.g., Brown v. Beard, 11 A.3d 578, (Pa. Cmwlth. 2010) ( 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. 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 word imminent would be rendered meaningless. ). 3 Appellant argues that any evaluation of an abusive litigator s request to proceed in forma pauperis must be limited to the specific date on which the request was made. We disagree. Whether or not an inmate is still subject to the alleged danger is a proper consideration for a court charged with evaluating if an abusive litigator may proceed without paying the requisite filing fees. Lopez, 41 A.3d at 189; Brown v. Beard, 11 A.3d at 581. The issue of whether a litigant qualifies to proceed in forma pauperis is not a static one and any litigant has a continuing obligation to inform the court if the conditions that allowed the litigant to proceed without paying the necessary filing fees have changed. 42 Pa. C.S. 6602; Pa. R.C.P. No. 240(e). 5

6 Accordingly, because Appellant has failed to allege credible allegations of imminent danger of serious bodily harm, we affirm the Trial Court s denial of in forma pauperis status and subsequent dismissal of Appellant s complaint. JAMES GARDNER COLINS, Senior Judge 6

7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alfonso Percy Pew, Appellant v. No C.D Pennsylvania Department of Corrections, Secretary John E. Wetzel Superintendent Marirosa Lamas, et al. ORDER AND NOW, this 12 th day of November, 2014, the order of the Centre County Court of Common Pleas in the above-captioned case is AFFIRMED. JAMES GARDNER COLINS, Senior Judge

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