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Alton D. Brown v. Pa. Dept. of Corrections; Jeffrey A. Beard; Shirley Moore-Smeal

November 16, 2012

ALTON D. BROWN, APPELLANT
v.
PA. DEPT. OF CORRECTIONS; JEFFREY A. BEARD; SHIRLEY MOORE-SMEAL; DORINA VARNER; WILLIAM BANTA; FELIPE ARIAS; PRISON HEALTH SERVICES, INC.; JULIE KNAVER; MYRON STANISHEFSKI; RAY MACHAK; M. WENEROWICZ; J. STRICKLAND; RICHARD STEFANIC; JOSEPH C. KORSZNIAK; WENDY SHAYLOR; SCOTT WILLIAMSON; JOHN DAY; D. WHITE; GEORGE HILTNER; PHYSICIAN ASSISTANT JANE DOE; JOHN K. MURRAY; E. VEROSKY



The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

Submitted: August 24, 2012

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY JUDGE McCULLOUGH

Alton D. Brown (Brown) appeals pro se from the November 10, 2011 order of the Allegheny County Court of Common Pleas (trial court), which dismissed Brown's complaint with prejudice pursuant to section 6602(f) of the statute commonly known as the Prison Litigation Reform Act (Pennsylvania PLRA), 42 Pa. C.S. §6602(f). We affirm in part and vacate and remand in part.

On January 28, 2011, Brown filed a pro secomplaint in the trial court against the Department of Corrections, Jeffrey A. Beard, Shirley Moore-Smeal, Dorina Varner, William Banta, Felipe Arias (collectively, Department), and Prison Health Services, Inc. (PHS), an entity that contracts with the Department to provide medical services to inmates, and Julie Knaver, Myron Stanishefski, Ray Machak, M. Wenerowicz, J. Strickland, Richard Stefanic, Joseph C. Korszniak, Wendy Shaylor, Scott Williamson, John Day, D. White, George Hiltner, Physician Assistant Jane Doe, John K. Murray, and E. Verosky, individual employees of PHS (collectively, PHS). In his complaint, Brown asserted claims through the vehicle of Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. §1983, alleging that the Department and PHS (collectively, Defendants) violated his First, Eighth and Fourteenth Amendment rights by subjecting him to cruel and unusual conditions of confinement, acts of retaliation, and the denial of adequate medical care. Brown also asserted state law tort claims for medical malpractice and negligent housing. (Complaint, Preliminary Statement).

In his complaint, Brown alleged that on January 12, 2006, he was transferred to SCI-Graterford, in Montgomery County, Pennsylvania. Brown averred that the ventilation system at SCI-Graterford was and currently is inadequate and, consequently, the air is contaminated with a high concentration of dust, dirt, and tobacco smoke. Brown alleged that as a result of constantly breathing the foul air, his liver disease, Hepatitis C, has become aggravated and his sinuses are clogged. Brown further stated that he suffers from shortness of breath and wheezing, and, at least on one occasion, has coughed up blood. Brown also averred that PHS either denied him medical treatment or failed to provide him with adequate medical treatment. Brown claimed that due to the conditions of his confinement and lack of proper medical treatment, he "is in imminent and ongoing danger of his injuries progressing; death, cancer; irreparable injuries to his lungs, liver, throat and sinuses; and contracting chronic bronchitis . [or] some other serious respiratory disease.." In his request for relief, Brown sought compensatory and punitive damages, declaratory relief, and a temporary and permanent injunction. (Complaint, ¶¶ 13, 30, 39-42, 44, 47 and 70-73 and Relief Requested section).

In conjunction with his complaint, Brown filed a petition to proceed in forma pauperis, which the trial court granted on March 11, 2011. Thereafter, Defendants filed motions to dismiss Brown's complaint under section 6602(f) of the Pennsylvania PLRA and Pa. R.C.P. No. 240(j). By order dated November 10, 2011, the trial court granted Defendants' motions to dismiss on the basis of section 6602(f) and dismissed Brown's complaint with prejudice. This appeal ensued.

On appeal, Brown asserts that the averments in his complaint established that he is in imminent danger of serious bodily injury.

The Pennsylvania PLRA describes the manner in which prisoners can engage in prison conditions litigation, setting forth, among other things, the definitions of such litigation, the filing fees to be paid, and the ability of a trial court to summarily dismiss prison conditions litigation. In pertinent part, section 6602(f) provides as follows:

(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).

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)(1). Under section 6602(e)(2) of the Pennsylvania 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).

For purposes of the Pennsylvania PLRA, Brown has a prolific history of filing frivolous and abusive pro selawsuits concerning the conditions of his confinement. See, e.g., Brown v. Pennsylvania Department of Corrections (Brown I), (Pa. Cmwlth., No. 93 M.D. 2011, filed March 29, 2012), slip op. at 12 n. 7 ("Our research has shown that Brown has filed well over twenty pro se matters in which he challenges the conditions in which he is housed and/or the medical treatment he has received for various alleged ailments. The matters have been filed in various Courts of Common Pleas, this Court, and in the Federal Courts throughout the country. With few exceptions, these matters have been dismissed as being frivolous, without merit, or for not demonstrating that Brown was in imminent danger of serious bodily injury") (citations omitted); see also Brown v. Pennsylvania Department of Corrections, 913 A.2d 301, 306 (Pa. Cmwlth. 2006) ("Brown is a well-qualified abusive litigator within the meaning ...


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