IN THE COMMONWEALTH COURT OF PENNSYLVANIA David D. Richardson, : Appellant : : v. : : Commonwealth of Pennsylvania, : Pennsylvania Department of : Corrections, John K. Murray : No. 2044 C.D. 2013 and Shawn Kephart : Submitted: April 17, 2014 OPINION NOT REPORTED MEMORANDUM OPINION PER CURIAM FILED: July 1, 2014 David D. Richardson (Richardson) appeals pro se from the order of the Court of Common Pleas of Mercer County (common pleas court) which dismissed Richardson s motion to proceed in forma pauperis (IFP) and his complaint under the authority of the Prison Litigation Reform Act (PLRA) 1, which allows a court to deny a prisoner IFP status and to dismiss a complaint which challenges prison conditions where a prisoner has three prior prison condition complaints dismissed as frivolous or malicious. Richardson was incarcerated at the State Correctional Institution at Mercer (SCI-Mercer). On June 6, 2013, Richardson commenced an action in the common pleas court and alleged he would suffer irreparable harm if he did not attend the Eid Al-Fitr ceremonial meal due to the Pennsylvania Department of Corrections (DOC) revision to DC-ADM 819 which stated that [p]articipation in religious holy day observances, including ceremonial meals, will be limited to 1 42 Pa.C.S. 6601-6608.
those inmates who have participated in at least half of the primary worship gatherings which have taken place six months prior to the observance.... Summary of Changes to DC-ADM 819, January 24, 2013, at 1. (Citation omitted). Specifically, Richardson alleged: 2. Plaintiff [Richardson] is a follower of the Islamic Faith, and an adherent of the Shafi Mathab; one of the Four Major Schools of Thought in Islam. 3. By Memo dated January 24, 2013, Plaintiff [Richardson] was informed of changes to DC-ADM 819 by Defendant [Shawn] Kephart.... 4. In response to said Memo, Plaintiff [Richardson] filed a Religious Accommodation Request, seeking an exemption to participate in the Ramadan fast and the Eid al-fitr ceremonial meal, even though he does not attend Jum ah. 5. In response to said Religious Accommodation Request, Defendant Kephart recommended that Plaintiff [Richardson] be permitted to participate in the Ramadan fast despite not attending Jum ah. However, since the Eid al-fitr feast was optional, Plaintiff s [Richardson] participation therein should be denied unless Plaintiff [Richardson] satisfied the criteria [set forth in DC-ADM 819]........ 7. The Defendants requirement that Plaintiff [Richardson] participate in at least half of the primary worship gatherings which have taken place six months prior to the ceremonial meal in order to be allowed participation therein... violates Plaintiff s [Richardson] State Constitutional Right against being compelled to attend any place of worship pursuant to Article 1, Section 3 of the Pennsylvania Constitution..... 2
9. Plaintiff [Richardson] submits that the Defendants requirement that Plaintiff [Richardson] be a member in good standing in the Muslim Community in order to attend the ceremonial meal... violates Article 1, Section 3 s prohibition against preference being given to any religious establishment. Insofar as... the Muslim community at SCI-Mercer consist [sic] of member [sic] of the Salafi sect of Islam. 10. The Salafi sect considers non-members thereof as religious deviants. 11. The Four Major Schools of thought, ( Shafi ), considers non-members thereof as religious deviants..... 14. Eid al-fitr is celebrated by Muslims worldwide following fasting the Holy Month of Ramadan..... 17. Plaintiff [Richardson] will suffer irreparable injury if he is denied attendance at the Eid al-fitr ceremonial meal, based upon the Defendants unconstitutional good standing proposition. Civil Action-Law, June 6, 2013, Paragraph Nos. 2-5, 7, 9-11, 14, and 17 at 1-3. Richardson sought a declaratory judgment in his favor and a preliminary injunction barring the implementation of the changes to DC-ADM 819 to allow him to participate in the Eid al-fitr ceremonial meal. Richardson also moved to proceed IFP. On June 7, 2013, the common pleas court granted the motion to proceed IFP. On June 26, 2013, the Pennsylvania Department of Corrections, John K. Murray, and Shawn Kephart (DOC) moved to revoke Richardson s IFP status 3
and dismiss the complaint pursuant to Section 6602(f) of the PLRA, 42 Pa.C.S. 6602(f). 2 DOC alleged: 10. Thus, under the PLRA, a prisoner loses the opportunity to proceed in forma pauperis after he files three prison conditions lawsuits that are dismissed as frivolous.... The three-strikes provision is analogous to a jurisdictional hurdle that one seeking in forma pauperis status to challenge prison conditions must overcome.... 11. Attached is a true and correct copy of the Commonwealth Court s decision in Richardson v. Thomas, 964 A.2d 61 (Pa. Cmwlth. 2009), Pet. For allowance of app. denied...972 A.2d 523 ([Pa.] 2009), cert. denied, 130 S.Ct. 405 (2009). As discussed in detail 2 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. Section 6602(e)(2) of the PLRA, 42 Pa.C.S. 6602(e)(2) provides: (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:.... (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 the relief. 4
by the Court, Plaintiff [Richardson] has already accumulated at least three qualifying strikes under the PLRA.... 12. Therefore, Plaintiff [Richardson] is an abusive litigator within the meaning of the PLRA. 13. Because Plaintiff [Richardson] is an abusive litigator, he can only prevent the dismissal of his prison conditions litigation by two avenues[.] 14. One avenue is to pay the filing fee and costs associated with the present litigation in a reasonable time set by the Court.... 15. Another avenue is by making a credible allegation that he is in imminent danger of serious bodily injury.... However, such allegations are only able to avoid dismissal if they seek preliminary injunctive relief or a temporary restraining order.... 16. Plaintiff [Richardson] makes no allegations of imminent danger, and therefore this exception does not apply. (Citations omitted). Motion to Revoke IFP and Dismiss the Complaint Pursuant to Section 6602(f) of the Prison Litigation Reform Act, June 26, 2013, Paragraph Nos. 10-16 at 3-4. On June 26, 2013, the common pleas court revoked Richardson s in forma pauperis status and allowed him thirty days to pay the filing fees and costs associated with his complaint, otherwise the complaint would be dismissed. The common pleas court relied on this Court s decision in Richardson v. Thomas, 964 A.2d 61 (Pa. Cmwlth. 2009) to determine that Richardson already had three cases dismissed pursuant to Section 6602(e)(2) of the PLRA, 42 Pa.C.S. 6602(e)(2). The common pleas court also determined that it did not violate Richardson s right to due process when it revoked his IFP status. 5
Richardson did not pay the filing fee and costs. On August 23, 2013, the common pleas court dismissed the complaint. Richardson contends 3 that the common pleas court denied him procedural due process of law in violation of Pa.R.C.P. No. 208.3(a) where the common pleas court granted DOC s motion to revoke Richardson s IFP status without affording him notice or an opportunity to be heard. Richardson also contends that the common pleas court abused its discretion and/or committed an error of law when it revoked his IFP status. 4 Richardson asserts 5 that the trial court abused its discretion and/or committed an error of law when it revoked his IFP status. Richardson concedes that this Court in Jae v. Good, 946 A.2d 802 (Pa. Cmwlth. 2008), held that under Section 6602(f) of the PLRA, 42 Pa.C.S. 6602(f), a court is permitted to dismiss prisoner conditions litigation if the prisoner has previously had three or more prison condition litigation actions dismissed pursuant to Section 6602(e) of the PLRA, 42 Pa.C.S. 6602(e). Richardson argues that nothing in the language of Section 6602(f) of the PLRA, 42 Pa.C.S. 6602(f), authorizes the common pleas 3 As this Court s review involves solely questions of law, this Court s review is de novo. Payne v. Department of Corrections, 871 A.2d 795 (Pa. 2005). 4 Because Richardson was seeking only equitable relief and not monetary damages, his complaint should have been filed in this Court s original exclusive jurisdiction. The common pleas court should have transferred the matter to this Court. However, since the record is before this Court and the issue has been fully briefed, this Court will resolve the motion to dismiss Richardson s IFP status and the complaint. 5 This Court has foregone the sequence of Richardson s arguments. 6
court to revoke his IFP status once it was granted and then to dismiss the complaint for failure to pay the filing fees. Richardson does not appear to challenge that he has three strikes against him or that the litigation involves prison conditions. He argues that once granted, the IFP status cannot be revoked. In Brown v. Pennsylvania Department of Corrections, 58 A.3d 118, 121 (Pa. Cmwlth. 2012), this Court stated that under Section 6602(f)(1) of the PLRA, 42 Pa.C.S. 6602(f)(1), a court can revoke a plaintiff s in forma pauperis status if the plaintiff filed three or more civil actions involving prison conditions and these civil actions have been dismissed as frivolous or malicious or for failure to state a claim. While Richardson asks this Court to ignore valid precedent, this Court declines to do so. The common pleas court did not err when it revoked Richardson s IFP status. Richardson next contends that the common pleas court denied him procedural due process of law in violation of Pa.R.C.P. No. 208.3(a) because the common pleas court granted DOC s motion to revoke Richardson s IFP status without providing Richardson with notice or an opportunity to be heard. Richardson is correct that in procedural due process where a party s rights are to be affected, that party is entitled to notice and an opportunity to be heard. Fuentes v. Shevin, 407 U.S. 67 (1972). Pa.R.C.P. No. 208.3(a) provides: Except as otherwise provided by subdivision (b), the court shall initially consider a motion without written 7
responses or briefs. For a motion governed by this subdivision, the court may not enter an order that grants relief to the moving party unless the motion is presented as uncontested or the other parties to the proceeding are given an opportunity for an argument. Because the common pleas court ruled on DOC s motion without giving Richardson an opportunity to respond, he argues that the common pleas court violated both Pa.R.C.P. No. 208.3(a) and his right to procedural due process. The common pleas court reasoned: Having established that this Court acted properly in dismissing Mr. Richardson s complaint, this Court must consider Mr. Richardson s other issue whether he was entitled to a hearing before this Court dismissed his complaint. Mr. Richardson relies on Pa.R.Civ.P. [No.] 208.3, which states: [A] [trial] court shall initially consider a motion without written responses or briefs... the court may not enter an order that grants relief to the moving party unless... the other parties to the proceeding are given an opportunity for an argument.... However, it appears to his Court that the provisions of the Prison Litigation Reform Act trump Rule 208.3(a). The PLRA provides that 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).... Notably, any dismissal under [sic] 6602(e) or (f) is not triggered by any motion or other action by a defendant. Rather, such dismissals are conditioned upon determinations by the Court itself. In other words, this Court could have dismissed Mr. Richardson s complaint and denied him in forma pauperis status even if the Department of Corrections had never filed a motion requesting such action. Given that this Court could act at any time and act in the absence of a request from the Department of Corrections, this Court concludes that the hearing requirements of Rule 208.3(a) do not apply to the 8
dismissal of prisoner litigation under the PLRA. (Footnote omitted). Common Pleas Court, October 22, 2013, at 4. This Court agrees with the reasoning of the common pleas court and would have dismissed the complaint had it been brought in this Court s original jurisdiction. Accordingly, this Court affirms. 6 6 DOC also moves to revoke Richardson s IFP status in this Court. Given that this Court affirms the common pleas court s revocation of Richardson s IFP, this Court grants DOC s application. 9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA David D. Richardson, : Appellant : : v. : : Commonwealth of Pennsylvania, : Pennsylvania Department of : Corrections, John K. Murray : No. 2044 C.D. 2013 and Shawn Kephart : PER CURIAM O R D E R AND NOW, this 1 st day of July, 2014, the order of the Court of Common Pleas of Mercer County in the above-captioned matter is affirmed. This Court grants the application of the Pennsylvania Department of Corrections to revoke David D. Richardson s in forma pauperis status in the Commonwealth Court.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA David D. Richardson, : : No. 2044 C.D. 2013 Appellant : Submitted: April 17, 2014 : v. : Commonwealth of Pennsylvania, : Pennsylvania Department of : Corrections, John K. Murray and : Shawn Kephart : OPINION NOT REPORTED CONCURRING OPINION BY SENIOR JUDGE FRIEDMAN FILED: July 1, 2014 Based on the statute and existing case law, I am compelled to concur in the result. I write separately, however, because I am troubled by the fact that section 6602(f) of the statute commonly known as the Prison Litigation Reform Act (PLRA), 42 Pa. C.S. 6602(f), essentially creates a presumption that because three prior civil actions pursued by an inmate were deemed frivolous, any subsequent claim by that inmate is also frivolous. In such a case, the court makes absolutely no inquiry into the merits of the inmate s claim. 1 Stripped of in forma pauperis status, an indigent inmate then has no further recourse to pursue legitimate litigation. How can that be? ROCHELLE S. FRIEDMAN, Senior Judge 1 The only exception is where the prisoner is in imminent danger of serious bodily injury. Section 6602(f)(2) of the PLRA, 42 Pa. C.S. 6602(f)(2).