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Brown v. City of Philadelphia

April 14, 2009


The opinion of the court was delivered by: Slomsky, J.


I. Introduction

Before the Court are Plaintiff Alexander Brown's four consolidated cases filed without payment of fees or security, asserting claims pursuant to 42 U.S.C. §§ 1981, 1983, 1985 and 1988. Plaintiff's Complaints name over forty different individuals and entities as Defendants. The Court has spent countless hours deciphering the handwritten Complaints which contain dozens of accusations but lack supporting evidence.

In each case, Plaintiff is proceeding pro se and, with the exception of Civil Action No. 08-3369, Plaintiff has been granted in forma pauperis status. Plaintiff has been filing civil rights actions since approximately 1996. They are essentially similar in content. He has filed least thirty-five pro se civil actions under at least three different names.*fn1

Prisoners who have brought three or more civil actions that a court has dismissed as frivolous, malicious, or for failure to state a claim are generally precluded from bringing further actions in forma pauperis. 28 U.S.C. § 1915(g). On three or more occasions, Plaintiff's federal cases have been dismissed as frivolous, malicious, or for failure to state a claim upon which relief can be granted. However, 28 U.S.C. § 1915(g) further provides that a prisoner who has had three prior actions dismissed on these grounds will nonetheless be able to file actions if "the prisoner is under imminent danger of serious physical injury."*fn2 Plaintiff has continued his filings by use of this imminent danger exception. However, a court may challenge a Plaintiff's allegation of imminent danger. Considering the large number of Plaintiff's filings, the three identities used by Plaintiff, and the resources needed to decipher Plaintiff's Complaints, it is appropriate for the Court to examine the "reasonableness and necessity of permitting further unrestrained use of the right of free access to the courts by this litigant." In re Francis Lee Jenkins, Misc. No. 88-0068, slip op., at *2 (E.D. Pa. Feb. 5, 1988).

In addition to examining Plaintiff's filings, the Court scheduled a hearing in order to assess the credibility of Plaintiff's claim that he is in imminent danger. On February 18, 2009, the Court issued two Show Cause Orders, scheduling a hearing on March 6, 2009. The Orders provided notice to the parties of the purpose of the hearing. The first order required Plaintiff Alexander Brown to appear to Show Cause why:

1. The above-captioned civil cases should not be dismissed on the grounds that they are frivolous, malicious or fail to state a claim;

2. A pre-filing injunction should not be issued which would bar Plaintiff from filing in the future any civil actions in this Court without first seeking permission of the Court to file the civil action, in view of the fact that Plaintiff has brought three (3) or more actions in this Court which have been dismissed on prior occasions on the grounds that they are frivolous, malicious or fail to state a claim as referred to in 28 U.S.C. § 1915(g);

3. Plaintiff should be allowed to proceed in forma pauperis and not be required to pay the appropriate full filing fee required by this Court for all complaints and/or motions filed;

4. Plaintiff as a prisoner held in custody of Defendant City of Philadelphia is in imminent danger of serious physical injury.

The second order required Counsel for Defendants to appear to "Show Cause why Plaintiff Alexander Brown as a prisoner held in custody by Defendant is not in imminent danger of serious physical injury as referred to in 28 U.S.C. § 1915(g)."

The Show Cause hearing was held on March 6, 2009. The following parties were present at the show cause hearing: Plaintiff, representing himself; Mark Maguire, Esquire, representing Defendant City of Philadelphia; Mr. Robert M. Waller, Esquire, representing Defendant SEPTA; and John D. Kutzler, Esquire, representing Defendant Saint Joseph's Hospital.*fn3 Deputy Warden Gerald May testified on behalf of the City of Philadelphia. The Court made clear at the hearing, as it had in its Show Cause Orders, that the purpose of the hearing was to determine the credibility of Plaintiff's civil rights claims and the claim of imminent danger of serious physical injury.

For reasons that follow, the Court will dismiss Plaintiff's four consolidated complaints and will impose a pre-filing injunction on Plaintiff. The Court will present the factual background of the case, including Plaintiff's open civil actions. The Court will then present its factual findings. An examination of Plaintiff's filings and the record of the Show Cause Hearing held on March 6, 2009 shows that Plaintiff has fallen significantly short of establishing that he is in imminent danger, that his claims have merit, or proving that his litany of allegations have actually occurred. Because Plaintiff is not in imminent danger, Plaintiff should not be able to file civil actions in forma pauperis. Moreover, because his consolidated actions lack merit, the open civil actions should be closed. The Court also imposes a pre-filing injunction on Plaintiff, prohibiting Plaintiff from filing future civil actions without first seeking leave of Court and attaching required documentation.

The Court is mindful that a judicially-imposed restriction on an individual's access to court constitutes an extreme remedy for frivolous litigants. However, the Court of Appeals has held that "a continuous pattern of groundless and vexatious litigation can, at some point, support an order against further filings of complaints without the permission of the [C]court." In re Oliver, 682 F.2d 443, 446 (3d Cir. 1982). With these considerations in mind, the Court has determined that it is proper to serve Plaintiff with a pre-filing injunction pursuant to 28 U.S.C. 1651(a)*fn4 due to his history of frivolous and vexatious filings.

II. Factual Background

Plaintiff has brought at least forty complaints against numerous defendants for alleged injuries suffered as a result of his various arrests and imprisonments over the past thirteen years. Plaintiff has used the names "Alexander Brown," as well as "John Hooks" and "Gene Bowman,"*fn5 to file his many complaints and motions. None of Plaintiff's previous complaints has resulted in the award of damages.

Over the past thirteen years, Plaintiff has been incarcerated except for about one year. He was initially arrested for retail theft. (Transcript of Show Cause Hearing, March 6, 2009 ["Transcript"] at 38-39). Plaintiff is homeless and resides on the street when released from jail. Since 2007, Plaintiff has been released from prison on two occasions. Both times, he was arrested within a week of being released. See id. at 38.

Deputy Warden May testified at the Show Cause Hearing that he believes "every time Mr. Brown is incarcerated in the Philadelphia Prison System, he's placed in protective custody." (Id. at 63). He believes that Plaintiff has been in protective custody since 2005, when the earliest of the four consolidated cases was filed. (Id. at 63-64). Prisoners in protective custody "do not have no [sic] contact with general population." (Id. at 64). When "they are transported from one area of the jail to another jail with general population," "they're always escorted at all times by staff." (Id.).

Warden May further explained that protective custody is either requested or court ordered. Plaintiff is in protective custody at his own request. (Id.). The Court questioned why a prisoner is placed in protected custody. The Warden responded:

WARDEN: [O]ne is in protective custody . . . when they . . . fear for their own safety from other inmates or staff or whatever they feel they need protection from.

COURT: Okay. And you honor that request to make sure they're not in imminent danger.

WARDEN: Correct. (Id.).

Plaintiff is moved to different prisons within the Philadelphia Prison System every ninety days.*fn6 See id. at 65. These transfers occur, according to Warden May, in order to give each institution a break from the "chaos" initiated by Plaintiff. (Id. at 73). Warden May clarified what he meant by "chaos":

WARDEN: What I'm talking about is that sometimes, your -- your radical political outbursts, your flooding of the cells, the writing on the walls, the writing with feces, the smearing of feces on the wall, smearing of feces on the cell door, the chaos that you cause while you're in your cell and the population is out, you know, with population. Every time you come out . . . population is put back in their cell to move you, in order to move or exercise you, and that dampers the exercise of the other 2,999 inmates[.]

(Id. at 74).

While incarcerated, Plaintiff has filed numerous civil actions.*fn7 Using all three aliases, Plaintiff has had at least thirty-five civil actions dismissed by the Court.*fn8 They are:

(1) Civil Action No. 97-2532; (2) Civil Action No. 97-2533; (3) Civil Action No. 97-2534; (4) Civil Action No. 97-2584; (5) Civil Action No. 97-6900; (6) Civil Action No. 98-1059; (7) Civil Action No. 98-6019; (8) Civil Action No. 99-0742; (9) Civil Action No. 99-1268; (10) Civil Action No. 99-1269; (11) Civil Action No. 99-2713; (12) Civil Action No. 4189; (13) Civil Action No. 99-6536; (14) Civil Action No. 00-1385; (15) Civil Action No. 00-3303; (16) Civil Action No. 00-5661; (17) Civil Action No. 01-5342; (18) Civil Action No. 01-5343; (19) Civil Action No. 01-5901; (20) Civil Action No. 01-5902; (21) Civil Action No. 03-1578; (22) Civil Action No. 03-2342; (23) Civil Action No. 03-3236; (24) Civil Action No. 03-4135; (25) Civil Action No. 04-0584; (26) Civil Action No. 04-2032; (27) Civil Action No. 04-2061; (28) Civil Action No. 04-2184; (29) Civil Action No. 05-5844; (30) Civil Action No. 06-2445; (31) Civil Action No. 06-4578; (32) Civil Action No. 06-5091; (33) Civil Action No. 07-1527; (34) Civil Action No. 07-5365; and (35) Civil Action No. 08-4206. Currently, Plaintiff's four consolidated civil actions remain open in this Court, while one civil action (Civil Action No. 07-4971) is on appeal to the Third Circuit. (Transcript at 28). Plaintiff has filed these actions pro se. In several actions, Plaintiff has requested counsel. The Court appointed counsel in prior actions by providing Plaintiff with pro bono representation from the law firms of Cozen O'Connor, Dechert LLP, and Saul Ewing LLP. Brown v. City of Phila., 2007 WL 2221421 (E.D.Pa. 2007) (J. Buckwalter). In those prior actions, counsel determined that Plaintiff's claims had no merit and so informed the Court by letter. Id. Counsel was subsequently relieved of their representation.

Plaintiff has also filed these civil actions, except for 08-3369, in forma pauperis. The Court is mindful that Plaintiff does not have the resources to pay a filing fee.*fn9 As noted, Plaintiff has been incarcerated twelve of the past thirteen years. Because he is held in protective custody while incarcerated, he is unable to perform paid labor.

The four open complaints will be summarized in turn, affording Plaintiff's allegations the highest degree of deference possible given the quality and legibility of Plaintiff's handwritten complaints.

A. Civil Action No. 05-4160 -- Brown v. City of Philadelphia et. al.

Plaintiff filed this civil action pursuant to 42 U.S.C. §§ 1981,*fn10 1983,*fn11 and 1985*fn12 against numerous Defendants alleging "imminent danger of serious bodily injury and psychological harm." (Amended Complaint at 1). When the Complaint was filed on August 3, 2005, Plaintiff was a pretrial detainee of the Philadelphia Prison System at the Philadelphia Industrial Correction Center located at 8301 State Road, Philadelphia, PA 19136. (Id.). The docket for this action is twenty-three (23) pages, and contains one complaint, two amended complaints, and fifty-one (51) motions filed by Plaintiff.

Defendants in this action include: the City of Philadelphia, Saint Joseph's Hospital, Commissioner Leon King II, Deputy John Murphy, Correctional Officer Bartacor, Correctional Officer Woodson, Warden Blackmon, Deputy Warden George Peoples, Six John Doe Police Officers, Marvin Cooper, Lieutenant Dewy, Aramark Food Inc., Correctional Officer Brown, and Correctional Officer Gains. (Id. at ¶¶ A-H).

In this Complaint, Plaintiff has alleged, inter alia: assault; retribution in response to his previous filings against defendants; unnecessary and excessive force, resulting in wounds; denial of medical treatment regarding high blood pressure; refusal of sick call; unlawful opening of mail; cruel and unusual punishment and inhumane treatment in the way he was served food; a conspiracy by Defendants to "terroristically threaten" him; having a mouse placed strategically in his meals to cause imminent danger of serious physical and psychological harm; the allowance by Defendants to subject Plaintiff to assaults from other inmates; acquiescence in the assault by Defendants for refusing to protect Plaintiff from assault by other inmates; a two-month unnecessary wait for surgery; that he was sodomized by a police officer with "nefarious intentions" after passing out from a "false arrest" on May 27, 2005; that he was urinated on as a result of this arrest; and insufficient training of employees by Defendants Aramark and the City of Philadelphia. (See generally id.).

Similar to his alleged damages in other actions, Plaintiff's alleged damages in this action include: loss of employment, financial difficulty, post-traumatic stress, battered man syndrome, panic attacks, mental anguish, black outs, dizzy spells, back and neck problems, damaged eye sight, and a broken right finger. (Id. at 21). Plaintiff sought to recover $10,000 ...

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