L. Brown v. CFS1 Reifer

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lamar Brown, :

:

Appellant :

:

v. : No. 1696 C.D. 2019

: Submitted: December 4, 2020

CFS1 Reifer, CFSS Albert, :

CFSS Eckenrode, FSM2 Pitsinger, :

Hearing Examiner Wiggins, :

DSCS Bobbi Jo Salamon, :

PSFM D. Close, Major J. Burrows, :

Superintendent Barry Smith, :

Chief Hearing Examiner Mostak :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: October 26, 2021

Lamar Brown (Inmate), proceeding pro se, appeals from an order of the

Court of Common Pleas of Clearfield County (trial court), which denied his petition

to proceed in forma pauperis (IFP) and dismissed his complaint as frivolous pursuant

to Pa.R.Civ.P. 240(j)(1).1 We affirm.

1

Pa.R.Civ.P. 240(j)(1) states, in relevant part: “If, simultaneous with the commencement

of an action or proceeding . . . a party has filed a petition for leave to proceed [IFP], the court prior

to acting upon the petition may dismiss the action . . . if it is satisfied that the action . . . is

frivolous.”

Inmate was formerly housed at the State Correctional Institution (SCI)

at Houtzdale, but he is now housed at the SCI at Camp Hill. On August 16, 2019,

Inmate filed his complaint in the trial court against Department of Corrections

(DOC) employees identified as Corrections Food Services 1 Reifer (Reifer);

Corrections Food Service Supervisor Albert (Albert); Corrections Food Services

Supervisor Eckenroad (Eckenroad); Food Services Manager 2 Pitsinger (Pitsinger);

Hearing Examiner Wiggins (Wiggins); Deputy Superintendent of Centralized

Services Bobbi Jo Salamon (Salamon); Deputy Superintendent of Facility

Management D. Close (Close); Major J. Burrows (Burrows); Superintendent Barry

Smith (Smith); and Chief Hearing Examiner Mostak (Mostak) (collectively, DOC

Defendants), in their individual and official capacities. In the complaint, Inmate

sought damages, declaratory relief, injunctive relief, and punitive damages under 42

U.S. §1983 (Section 1983) (relating to civil rights violations), based upon the

violation of his rights under the First, Eighth, and Fourteenth Amendments to the

United States Constitution, U.S. Const. amend. I, VIII, and XIV, and civil conspiracy

under Pennsylvania law. Inmate also filed an IFP petition, along with a verified

statement.

In the complaint, Inmate alleged that Reifer violated his First

Amendment rights by fabricating a misconduct report in retaliation for Inmate’s

filing grievances against Reifer. Complaint ¶112. Inmate also alleged that Reifer

and Albert conspired to have him demoted and/or fired from his position in the

dietary department in violation of Pennsylvania State Law. Id. ¶113. Inmate further

alleged that Albert, Eckenroad, and Pitsinger’s failure to take corrective action in

response to his complaints against Reifer constituted deliberate indifference in

violation of his Eighth Amendment rights. Id. ¶114.

2

Regarding the misconduct hearing and subsequent appeals, Inmate

alleged that Wiggins denied him due process of law in violation of the Fourteenth

Amendment by failing to call witnesses and review the video footage evidence.

Complaint ¶115. Inmate also alleged that Salamon, Close, Burrows, Smith, and

Mostak violated his Eighth Amendment rights by failing to act on his complaints.

Id. ¶116. Finally, Inmate alleged that Reifer and Albert violated his First

Amendment rights by retaliating against him. Id. ¶117.

According to the complaint, Inmate was employed in SCI Houtzdale’s

dietary department. Complaint ¶15. Inmate and another worker, Bailey, were

standing near a serving line with other inmates when Reifer instructed only Inmate

and Bailey to leave that area. Id. ¶¶15-19. Inmate complained to Reifer’s

supervisors, Eckenroad and Pitsinger about Reifer’s “harassment.” Id. ¶¶20-32.

On January 1, 2019, Inmate and other workers were assigned to cook

black-eyed peas. Id. ¶33. Inmate alleges that he opened 20 cans of black-eyed peas

while another inmate drained the cans. Id. ¶¶34-36. Reifer did not want the cans

drained. Id. ¶56. Inmate alleged that while he was waiting in line for the restroom,

Reifer sent him back to his block and demoted him without explanation. Id. ¶¶39-

40. Inmate complained to Albert about this incident. Id. ¶¶41-44.

The next day, Pitsinger discussed the incident with Inmate. Complaint

¶¶51-64. Pitsinger and Inmate agreed to resolve the matter by reassigning Inmate to

a different job at the same pay rate until another cook position became available. Id.

¶¶64-65. Inmate complained that Pitsinger did not review the video footage showing

that he was not the inmate who drained the peas, and that he was punished for

something that he did not do. Id. ¶¶66-70. Inmate filed a grievance for this incident.

Id. ¶72.

3

On January 5, 2019, Inmate was working in the kitchen when Reifer

told him to take his hat off, but allowed other inmates to continue to wear their hats.

Complaint ¶¶73-77. Inmate complained to Reifer’s supervisor, Albert, about being

singled out by Reifer. Id. ¶78. Inmate alleged that Albert sent Reifer home for the

day because of this incident. Id. ¶¶81-82. Inmate filed another grievance for this

incident. Id. ¶83.

On January 11, 2019, Reifer issued Inmate a misconduct for refusing to

obey an order and for taking food from the kitchen. Complaint ¶¶90-91. Inmate

disputed his guilt. Id. ¶¶92-96. Inmate requested witnesses and for the hearing

examiner, Wiggins, to review video footage from the incident, but his requests were

denied. Id. ¶¶97-104. Wiggins found Inmate guilty of both misconducts. Id. ¶105.

Inmate appealed to the Program Review Committee, consisting of Defendants Close,

Salamon, and Burrows, which upheld the decision. Id. ¶106. Inmate then appealed

to Smith, and finally to Mostak, both of whom affirmed the decision. Id. ¶¶107-108.

By opinion and order dated August 13, 2019, the trial court, sua sponte,

denied Inmate’s IFP petition and dismissed his complaint pursuant to Pa.R.Civ.P.

240(j)(1). The trial court determined that Inmate’s constitutional claims could be

reduced to one issue, i.e., whether Inmate has a constitutional right to a job within

SCI Houtzdale. The trial court opined that Inmate failed to set forth a basis in fact

or law to support his constitutional claim that he has a right to employment while

incarcerated. Inmate filed the instant appeal from the trial court’s order dismissing

his complaint as frivolous.2

2

On March 2, 2010, Defendants filed an application to quash the appeal as untimely. On

April 6, 2020, Inmate filed an answer to the motion, invoking the prisoner mailbox rule and

appending a copy of a cash slip demonstrating that the appeal was timely deposited with the prison

authorities. Pursuant to the “prisoner mailbox rule,” pro se legal filings of prisoners are deemed

(Footnote continued on next page…)

4

On appeal,3 Inmate contends that the trial court has misconstrued and

misinterpreted his complaint. Inmate asserts that he did not argue that he has a

constitutional right to employment nor a particular job assignment. Rather, Inmate

claims that he has stated viable federal constitutional claims under Section 1983, and

state law claims against DOC Defendants.

However, in our September 15, 2020 Memorandum and Order granting

DOC Defendants’ Motion to Revoke IFP in this appeal, we stated:

[Inmate] has previously had at least three cases

dismissed on the basis that they were frivolous or failed to

state a claim upon which relief may be granted. [Section

6602(e)(2) of the Prison Litigation Reform Act (PLRA),]

42 Pa. C.S. §6602(e)(2).[4] See Brown v. Wetzel [(C.P.

Centre, No. 2016-194, filed October 5, 2016), aff’d, 179

A.3d 1161 (Pa. Cmwlth. 2018)] (dismissed for failure to

state a claim)[;] Brown v. Sayors [(C.P. Erie, No. 11549-

2014, filed February 25, 2015), aff’d, (Pa. Cmwlth., No.

1509 C.D. 2015, filed July 13, 2016)] (misconduct-related

complaint dismissed for failure to state a claim)[;] Brown

to be filed on the date they are “given to prison officials or put in the prison mailbox.” Kittrell v.

Watson, 88 A.3d 1091, 1096 (Pa. Cmwlth. 2014). In their brief, DOC Defendants withdrew the

application to quash. See Brief for the Appellees at 5.

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) (citation omitted).

4

Section 6602(e)(2) states, in relevant part:

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 . . .

***

(2) The prison conditions litigation is frivolous or malicious or fails

to state a claim upon which relief may be granted . . . .

5

v. Clark [(C.P. Centre, No. 2015-3149, filed December 21,

2016), aff’d, 184 A.3d 1028 (Pa. Cmwlth. 2018)]

(defamation claim against prison employee dismissed)[;]

Brown v. Estep [(C.P. Centre, No. 2016-2577)]

(misconduct-related complaint dismissed for failure to

state a claim). The present matter does not fall within the

exception prohibiting dismissal of a request for

preliminary injunctive relief or a temporary restraining

order that makes a credible allegation that the prisoner is

in imminent danger of serious bodily injury. [Section

6602(f) of the PLRA,] 42 Pa. C.S. §6602(f).[5]

As this Court has explained:

Although the trial court dismissed [the inmate’s]

appeal pursuant to [Pa.R.Civ.P.] 240(j), it is well[]settled

that an appellate court may affirm the decision of the court

below for any valid reason. P[ennsylvania] Dep[artmen]t

of Banking v. NCAS of Del[aware], LLC, [948 A.2d 752,

761-62 (Pa.2008)]. Pursuant to Section 6602(f) of the

PLRA, a prisoner becomes an abusive litigator and “loses

the opportunity to proceed in forma pauperis after he files

three prison condition lawsuits that are dismissed as

frivolous.” Jae [v. Good, 946 A.2d 802, 807 (Pa. Cmwlth.

2008)]. Where a prisoner has been deemed an abusive

litigator, the prisoner can escape dismissal of his 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.” Id.

5

Section 6602(f)(1) of the PLRA states:

If a 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).

6

The instant action constitutes “prison conditions

litigation” within the meaning of Section 6601 of the

PLRA because [the inmate] is a prisoner and his

allegations relate to the conditions of his confinement and

the alleged actions of DOC and U.S. Marshals employees.

See 42 Pa. C.S. §6601.[6] Furthermore, [the inmate’s]

status as an abusive litigator is well[]established. See

Brown v. Levy, 993 A.2d 364 (Pa. Cmwlth. 2010) (“[The

inmate] has already exhausted his ‘three strikes.’”); Brown

v. P[ennsylvania] Dep[artmen]t of Corrections, 913 A.2d

301, 306 (Pa. Cmwlth. 2006) (“[The inmate] is a well-

qualified abusive litigator within the meaning of the

PLRA.”)[;] Brown v. James, 822 A.2d 128 (Pa. Cmwlth.

2003) (listing Pennsylvania and federal cases filed by [the

inmate] which have been dismissed as frivolous)[.]

Accordingly, [the inmate] can avoid dismissal of his

complaint only if he has made “a credible allegation that

[he] is in imminent danger of serious bodily injury” in

seeking injunctive relief. 42 Pa. C.S. §6602(f).

Beard, 11 A.3d at 580-81.

As outlined above, it has previously been determined that Inmate is an

abusive litigator, and that this matter does not fall within the exception prohibiting

dismissal of a request for preliminary injunctive relief or a temporary restraining

order, under the relevant provisions of Section 6602(f) of the PLRA. Additionally,

as detailed above, the claims raised in Inmate’s complaint squarely fall within the

definition of Section 6601 of the PLRA because they relate to the conditions of his

confinement and the alleged actions of the named DOC Defendants. Based on the

foregoing, Inmate’s complaint could be properly dismissed under Section 6602(f)(2)

of the PLRA and the trial court did not err in dismissing Inmate’s complaint, albeit

on a different basis. Beard.

6

Section 6601 of the PLRA defines “[p]rison conditions litigation,” in pertinent part, as

“[a] civil proceeding arising in whole or in part under Federal or State law with respect to the

conditions of confinement or the effects of actions by a government party on the life of an

individual confined in prison.”

7

Accordingly, the trial court’s order is affirmed.

MICHAEL H. WOJCIK, Judge

8

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lamar Brown, :

:

Appellant :

:

v. : No. 1696 C.D. 2019

:

CFS1 Reifer, CFSS Albert, :

CFSS Eckenrode, FSM2 Pitsinger, :

Hearing Examiner Wiggins, :

DSCS Bobbi Jo Salamon, :

PSFM D. Close, Major J. Burrows, :

Superintendent Barry Smith, :

Chief Hearing Examiner Mostak :

ORDER

AND NOW, this 26th day of October, 2021, the order of the Court of

Common Pleas of Clearfield County dated August 13, 2019, is AFFIRMED, and the

Application to Quash the above-captioned appeal has been WITHDRAWN.

__________________________________

MICHAEL H. WOJCIK, Judge