IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alton D. Brown, : Appellant : : v. : : No. 863 C.D. 2012 Conner Blaine Jr., Lt. R. Oddo, : Submitted: February 1, 2013 T. D. Jackson, Lieutenant McCombic, : Charles Rossi, Sergeant Lipscomb, : Officer Marshall, Officer Romano, : Kerri Cross, Frank J. Zaburowski : and B.E. Ansell : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED: April 18, 2013 Appellant Alton D. Brown (Plaintiff) appeals, pro se, from the order of the Greene County Court of Common Pleas that revoked his status as an in forma pauperis (IFP) litigant and dismissed his case under Pennsylvania s Prisoner Litigation Reform Act (PLRA), 42 Pa. C.S. 6601-6608. For the reasons set forth below, we affirm, in part, and vacate, in part, remanding to the trial court further proceedings consistent with this opinion. Plaintiff is currently incarcerated in the Pennsylvania prison system. 1 He filed the instant civil rights action on April 12, 2002, alleging claims under 42 U.S.C. 1983 against Defendants, who are guards, officers, and employees of the 1 At the time he filed his appellate papers in 2012, Plaintiff was incarcerated at the State Correctional Institution in Graterford, Pennsylvania.
Pennsylvania Department of Corrections (DOC) at the State Correctional Institution in Greene County (SCI-Greene). (Findings of Fact (F.F.) 1-2; Certified Docket from trial court, Case Number AD-194-2002 (Certified Docket) at 1.) Plaintiff s claims stem from his placement in administrative custody in the restricted housing unit of SCI-Greene in 1999. (F.F. 3.) He contends that upon filing grievances, Defendants retaliated by fabricating misconduct reports in violation of Plaintiff s due process rights guaranteed to him by the United States and Pennsylvania Constitutions. (F.F. 4.) Plaintiff was granted IFP status on April 12, 2002. (F.F. 5.) Being over a decade old, this case has a long procedural history. Several of Plaintiff s claims were dismissed by the trial court on preliminary objections, which this Court affirmed in part and reversed in part by our opinion and order of October 15, 2003, Brown v. Blaine, 833 A.2d 1166 (Pa. Cmwlth. 2003). By order filed on December 3, 2008, the trial court, inter alia, (1) set deadlines to complete discovery; (2) ordered the parties to file any dispositive motions within 30 days of the date of the order; (3) ordered Plaintiff to file a pretrial statement by July 1, 2009, (4) ordered Defendants to file any motions in limine within 30 days thereafter; and (5) scheduled trial to commence on October 6, 2009. Defendants filed a motion for partial summary judgment and, by order filed on February 2, 2009, the trial court granted the motion, reducing Plaintiff s claims for trial to his retaliation claim against Defendants Oddo and McCombie. In the months and weeks leading up to the October 6, 2009, trial date, the parties filed respective pre-trial documents, including Plaintiff s timely pre-trial statement, subpoenas to attend, proposed voir dire questions, and proposed jury instructions. The Court issued the necessary documents to secure Plaintiff s attendance at trial. 2
On September 30, 2009, Defendants filed an Emergency Motion in Limine, or in the alternative Motion to Continue the Trial, asserting that they had not been served with a copy of Plaintiff s pre-trial statement and, as a result, were unable to adequately prepare for trial. The trial court granted the motion by order filed on October 1, 2009, and continued trial until January 5, 2010. The court also ordered the parties to file new pre-trial statements, identifying witnesses they intended to call, and set a new deadline of November 17, 2009, for any and all motions in limine. 2 Plaintiff filed a motion for a change of venue, which the trial court denied on December 1, 2009. Plaintiff then sought permission to appeal that interlocutory order to this Court. Pursuant to Pennsylvania Rule of Appellate Procedure 311(b)(2), the trial court certified its order sustaining venue and this Court permitted the appeal to proceed as of right. Meanwhile, the trial court was compelled again to continue the trial date, which had been scheduled for January 5, 2010, pending resolution of Plaintiff s interlocutory appeal. By the order filed on November 8, 2010, this Court dismissed Plaintiff s interlocutory appeal for failing to follow Court orders directing him to file a reproduced record. Plaintiff filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which the Court denied on April 4, 2011. Back in the trial court, Plaintiff filed requests for a new trial date. By the order filed on 2 On October 8, 2009, Plaintiff responded to Defendants emergency motion to continue the trial and sought reconsideration of the trial court s order granting it, attaching the proof of service establishing that he had properly served defense counsel with a copy of his pre-trial statement. In the order filed October 21, 2009, the trial court denied reconsideration, explaining that he did not assess Plaintiff with any fault regarding defense counsel not receiving the document and finding that the continuance did not cause Plaintiff any undue prejudice. 3
June 24, 2011, the trial court scheduled jury selection for October 3, 2011, and ordered trial to commence on October 17, 2011. Finally, on September 20, 2011, thirteen days before jury selection was scheduled to commence, ten months after the court deadline for filing motions in limine, and nearly three years after the deadline for dispositive motions, Defendants filed the motion that is the subject of this appeal: a Motion to Remove IFP and Dismiss the Case Pursuant to Section 6602(f) of the PLRA (Motion to Remove IFP). The trial court again continued trial by order filed September 21, 2011, and ordered Plaintiff to respond to Defendants motion, which Plaintiff did on September 28, 2011. By the opinion and order filed November 3, 2011, the trial court granted Defendants Motion to Remove IFP, finding that Plaintiff was an abusive litigator under 42 Pa. C.S. 6602(f), that he was not in imminent danger of serious bodily injury, and dismissing Plaintiff s case. Plaintiff appealed to this Court and the trial court filed an opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). 3 On appeal, Plaintiff raises three issues. 4 First, he claims that the legislature intended that defendants employ Section 6602(f) during the initial portion of civil litigation and certainly not ten years after the commencement of a case and following substantial litigation. Second, he claims that the trial court was bound by the law of the case doctrine, because of the earlier order that granted him 3 Our review of the trial court s decision is limited to a determination of whether constitutional rights were violated, or whether the trial court abused its discretion or committed an error of law. Brown v. Beard, 11 A.3d 578, 580 n.5 (Pa. Cmwlth. 2010.) 4 Plaintiff actually raises many more than three issues. However, those other issues address the merits of his case or earlier interlocutory orders of the trial court that are not before us. Thus, we address only those issues before us on the instant appeal. 4
IFP status. And third, he claims that even if the trial court correctly revoked his IFP status, the trial court erred by dismissing the case, rather than giving Plaintiff the opportunity to pay the appropriate filing fees. 42 Pa. C.S. 6602(f). 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. Section 6602(f) of the PLRA is commonly referred to as the three strikes rule. Brown v. Beard, 11 A.3d 578, 580 (Pa. Cmwlth. 2010). The rule permits a trial court to dismiss the complaint of a prisoner who has filed prison conditions litigation where the prisoner has a history of filing abusive litigation, as those terms are defined in the statute. 42 Pa. C.S. 6602(f); Brown, 11 A.3d at 580; Jae v. Good, 946 A.2d 802, 806 (Pa. Cmwlth.), appeal denied, 598 Pa. 790, 959 A.2d 930 (2008). Although the statute does not expressly provide for the revocation of IFP status, this Court has held that, pursuant to Section 6602(f), a prisoner becomes an abusive litigator and loses the opportunity to proceed in 5
forma pauperis after he files three prison condition lawsuits that are deemed frivolous. Brown, 11 A.3d at 580; Jae, 946 A.2d at 807. Where a prisoner has been deemed an abusive litigator, he can escape dismissal of a prison conditions litigation under the three strikes rule only if he makes a credible allegation that he is in danger of imminent bodily harm and needs injunctive relief. Brown, 11 A.3d at 580; Jae, 946 A.2d at 807. This action constitutes prison conditions litigation, as that term is defined in Section 6601 of the PLRA, in that Plaintiff is a prisoner and his allegations relate to the conditions of his confinement in SCI-Greene and the alleged actions of the DOC employees. 42 Pa. C.S. 6601. Further, Plaintiff s status as an abusive litigator is extremely well documented. See Brown, 11 A.3d at 581 (compiling cases, citing Brown v. Levy, 993 A.2d 364 (Pa. Cmwlth. 2010) ( [Brown] has already exhausted his three strikes. ); Brown v. Pennsylvania Department of Corrections, 913 A.2d 301, 306 (Pa. Cmwlth. 2006) ( Brown is a well-qualified abusive litigator within the meaning of the PLRA. ), appeal denied, 591 Pa. 705, 918 A.2d 748 (2007); Brown v. James, 822 A.2d 128 (Pa. Cmwlth. 2003) (listing Pennsylvania and federal cases filed by Brown which have been dismissed as frivolous), appeal denied, 577 Pa. 736, 848 A.2d 930 (2004)). Further, this Court has previously identified at least five cases that predated the filing of the instant litigation in 2002, in which Plaintiff was found to have filed frivolous claims. See Brown, 822 A.2d at 130; 42 Pa. C.S. 6602(f) (requiring that the abusive litigation be prior to the action in which defendants seek relief). Finally, Brown does not assert that his claims, which relate to events that occurred in 1999, show that he is in imminent danger of serious bodily injury. Accordingly, 6
the trial court s revocation of Brown s IFP status pursuant to the PLRA was proper. 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 and, if he is able, to permit the case to proceed. If he is not, the case may be dismissed. Lopez v. Haywood, 41 A.3d 184, 187 (Pa. Cmwlth. 2012) (holding that abusive litigant who loses IFP status may proceed by paying costs). Defendants concede this point in their brief, acknowledging that the proper resolution of Plaintiff s appeal would be to partially vacate the trial court s order and remand to provide Plaintiff with the opportunity to pay the required court fees. Brown does not challenge his status as an abusive litigator. He argues, instead, that Defendants, essentially, filed their Motion to Remove IFP too late. We disagree. There is no reason in the record why Defendants failed for years to raise the instant issue and certainly no argument could be made that Plaintiff s notorious status as an abusive litigator was somehow concealed from them. And we note that the last-minute filing of Defendants Motion certainly was without consideration of judicial economy and the now-wasted efforts of the litigants over the course of ten years of litigation. Nevertheless, the PLRA does not provide a time limit or timeframe within which a motion must be filed under Section 6602(f) and we have found no case that requires a trial court to deny such a motion on timeliness grounds. Further, the trial court here did not consider Defendants Motion to be covered by any of the court s scheduling orders, such that, prior to filing the Motion, Defendants would have been required to seek permission from the trial court. We cannot say that the trial court erred or abused 7
its discretion in that decision. Accordingly, we disagree with Plaintiff that the trial court was barred from granting Defendants Motion due to the timing of its filing. Plaintiff next argues that the law of the case doctrine bars the trial court from contradicting its earlier order granting him IFP status. This argument makes little sense. The PLRA and cases decided under it contemplate that an abusive litigant, once granted IFP status, could have that status revoked. Finally, Plaintiff claims that the trial court erred by dismissing the case, rather than giving Plaintiff the opportunity to pay the appropriate filing fees. As explained above, we agree with Plaintiff on this point, as do Defendants. Accordingly, we vacate that portion of the trial court s order that dismissed Plaintiff s complaint and remand with an instruction to provide Plaintiff with notice and a reasonable time period to pay any required fees to proceed with his case. If, thereafter, Plaintiff is unable to proceed without his IFP status, the trial court may dismiss the case. An appropriate order follows. JAMES GARDNER COLINS, Senior Judge 8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alton D. Brown, : Appellant : : No. 863 C.D. 2012 v. : : Conner Blaine Jr., Lt. R. Oddo, : T. D. Jackson, Lieutenant McCombic, : Charles Rossi, Sergeant Lipscomb, : Officer Marshall, Officer Romano, : Kerri Cross, Frank J. Zaburowski : and B.E. Ansell : O R D E R AND NOW, this 18 th day of April, 2013, the order of the Court of Common Pleas of Greene County is AFFIRMED IN PART and VACATED IN PART. We affirm the trial court s holding that Plaintiff Alton D. Brown is an abusive litigator and revoking his in forma pauperis status pursuant to Section 6602(f) of the Prison Litigation Reform Act. We vacate the trial court s dismissal of the case and remand to the trial court, consistent with the accompanying memorandum opinion, with instructions to provide Plaintiff with notice and a reasonable time period to pay any required court fees in order to proceed with his case. If, thereafter, Plaintiff is unable to proceed, the trial court may dismiss the case. Jurisdiction relinquished. JAMES GARDNER COLINS, Senior Judge