# L. Brown v. Former C/O T. Hollis

> Commonwealth Court of Pennsylvania · March 3, 2023

URL: https://www.frixlaw.com/law-library/cases/9376698

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** March 3, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Leadbetter, President Judge Emerita
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9376698

## How later opinions describe it (automated extraction)

- recognizing “if an agency prevents a party from pursuing a remedy, the agency does not ‘hold out’ a remedy, and the remedy cannot be exhausted”
- holding dispute of fact remained regarding failure to exhaust administrative remedies where inmate alleged he was told to wait until security investigation was complete before filing a grievance

## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lamar Brown, :
Appellant :
:
v. : No. 511 C.D. 2021
: SUBMITTED: June 17, 2022
Former C/O T. Hollis, C/O Smouse and :
C/O Jones :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: March 3, 2023

Lamar Brown, proceeding pro se, appeals from an order of the Court of
Common Pleas of Clearfield County denying Brown’s petition to proceed in forma
pauperis (IFP) and dismissing his complaint as frivolous pursuant to Pennsylvania
Rule of Civil Procedure 240(j)(1), Pa.R.Civ.P. 240(j)(1).1 For the reasons set forth
below, we reverse and remand for further proceedings.

1
Rule 240(j)(1) provides:

If, simultaneous with the commencement of an action or proceeding
or the taking of an appeal, a party has filed a petition for leave to
proceed in forma pauperis, the court prior to acting upon the petition
may dismiss the action, proceeding or appeal if the allegation of
poverty is untrue or if it is satisfied that the action, proceeding or
appeal is frivolous.

Pa.R.Civ.P. 240(j)(1).
The facts as alleged in the complaint are as follows. Brown is an inmate
who, during the timeframe relevant to this matter, was confined at the State
Correctional Institution at Houtzdale (SCI-Houtzdale). Brown filed a complaint in
the trial court against former Corrections Officer Trainees Hollis and Smouse, and
former Corrections Officer 1 Jones (collectively, Officers), all of whom were
employed at SCI-Houtzdale. Brown simultaneously filed an IFP petition along with
a verified statement.
In the complaint, Brown alleges that Officer Hollis cornered him in a
closet and coerced him into engaging in sexual acts with her by threatening to affect
his upcoming parole if he did not comply. Several days later when Officer Hollis
again approached Brown for sex he refused her advances, stating that he would file
a grievance or a Prison Rape Elimination Act (PREA)2 complaint if she continued.
Officer Hollis became angry, again threatening Brown’s parole and stating she
would “get some guys to hurt” Brown. Original Record (O.R.), Compl. at 5. Several
days later, when Officers Smouse and Jones were working on Brown’s housing unit,
Brown was physically assaulted by several inmates, sustaining bruises and
contusions to his face and pain around his ribs. Officer Smouse allegedly stated to
Brown after the incident: “That was for Hollis.” O.R., Compl. at 6. Officers Smouse
and Jones made further comments urging Brown to keep quiet about what happened
and warning that if he said anything he would be killed. Brown specifically states
that he did not file a grievance or PREA complaint about these incidents because he
feared for his life, and that he initially told another corrections officer and medical
staff that he sustained his injuries when he fell from his bunk.

2
34 U.S.C. §§ 30301-30309.

2
In the portion of his complaint titled “Claims for Relief,” Brown asserts
the following: Officer Hollis forcing him to perform sexual acts with her constitutes
cruel and unusual punishment in violation of the Eighth Amendment as well as
intentional infliction of emotional distress; Officer Hollis orchestrating a physical
attack against Brown after he threatened to file a grievance or PREA complaint
against her constitutes retaliation in violation of the First Amendment; Officer
Smouse and Jones orchestrating a physical attack against Brown in aid of Officer
Hollis constitutes deliberate indifference to Brown’s safety in violation of the Eighth
Amendment, retaliation in violation of the First Amendment, and intentional
infliction of emotional distress; and the actions of all three Officers in orchestrating
the attack constitutes civil conspiracy in violation of Pennsylvania law. Brown
requests that the trial court issue a declaratory judgment stating that the Officers
violated his constitutional rights and committed the torts as outlined above. He
further asks the trial court to award compensatory and punitive damages, as well as
court costs.
By order dated March 5, 2021, the trial court sua sponte denied
Brown’s IFP petition and dismissed his complaint with prejudice pursuant to Rule
240(j)(1). The trial court determined that Brown’s claims were frivolous because he
failed to exhaust the available and appropriate administrative remedies before filing
his complaint. Specifically, Brown admittedly did not file a grievance with the
Department of Corrections (Department) regarding the Officers’ actions or follow
the Department’s procedures with respect to the PREA.3

3
The trial court also cited Buehl v. Pennsylvania Department of Corrections, 635 A.2d 217
(Pa. Cmwlth. 1991), for the proposition that “when ‘ancillary proceedings can be utilized to resolve
issues raised in a declaratory judgment petition, the declaratory judgment action should be
dismissed.’” Id. at 218 [quoting Prudential Prop. and Cas. Ins. Co. v. McDaniel, 493 A.2d 731,
732 (Pa. Super. 1985)].

3
Brown then appealed to this Court, with his notice of appeal docketed
by the trial court on May 5, 2021. Because this was more than 30 days after issuance
of the trial court’s order from which Brown seeks to appeal, see Pa.R.A.P. 903(a),
we issued an order directing the parties to address the issue of timeliness in their
principal briefs on the merits or in an appropriate motion. Brown’s merits brief,
however, fails to address the issue of timeliness, and the Officers filed a Notice of
Non-Participation on March 25, 2022, indicating that they would not be participating
in this appeal as the matter was dismissed by the trial court as frivolous prior to
service.
Before we reach the merits, we must address the issue of whether
Brown’s appeal was timely filed as this goes to our jurisdiction. In general, a notice
of appeal must be “filed within 30 days after the entry of the order from which the
appeal is taken.” Pa.R.A.P. 903(a) (emphasis added). As this Court has explained,

the [30]-day appeal period, mandated by Pa.R.A.P. 903(a),
does not commence until an order is “entered” by the trial
court. Pursuant to Pa.R.A.P. 108, a trial court’s order is
not “entered” until that order has been entered by the
Prothonotary on the docket and notice of the order’s entry
has been given to the parties by the Prothonotary as
required by Pa.R.C[iv].P. [] 236.

Gomory v. Dep’t of Transp., Bureau of Motor Vehicles, 704 A.2d 202, 204 (Pa.
Cmwlth. 1998) (citation omitted, emphasis in original).
Here, while the trial court docket reflects the issuance of the order dated
March 5, 2021, there is no corresponding entry demonstrating when, or even if, Rule
236 notice was given to the parties. The vague notation on the docket of “1 cc plff
1 cc R Reifer 1 cc CA,” without a corresponding date or reference to Rule 236, is
not sufficient to satisfy the requirements of the rules, the very purposes of which are

4
“to promote clarity” and “eliminat[e] the need for a case-by-case factual
determination.” Frazier v. City of Phila., 735 A.2d 113, 115 (Pa. 1999). The fact
that Brown received notice of the trial court order at some point in time does not
equate to compliance with Rule 236. See id. (“[t]hat the parties may have received
notice of the order does not alter the formal date of its entry”). In addition, further
review of the record demonstrates that the trial court received Brown’s appeal prior
to the May 5, 2021 date indicated on the docket. For example, (1) Brown’s notice
of appeal is dated March 15, 2021;4 (2) the trial court issued an order dated May 4,
2021 – one day before the entry reflecting his notice of appeal – granting Brown IFP
status for purposes of his appeal; and (3) there are repeated indications that the trial
court corresponded with Brown in March and April of 2021 regarding a purported
technical deficiency in his appeal paperwork.5 It is also noteworthy that the trial
court declined to issue an opinion pursuant to Pa.R.A.P. 1925(a), which it could have
used to advocate that Brown’s appeal be quashed or dismissed as untimely filed.
Given all of the above, we decline to sua sponte dismiss Brown’s appeal as untimely.
We also decline to remand the matter for further proceedings as to the issue of
timeliness or for the trial court to officially comply with Rule 236 as this would be
a waste of judicial resources under these particular circumstances.

4
See Kittrell v. Watson, 88 A.3d 1091, 1096 (Pa. Cmwlth. 2014) (“Under the prisoner mailbox
rule, a prisoner’s pro se appeal is deemed filed at the time it is given to prison officials or put in
the prison mailbox.”) (citations omitted). While the date Brown provided on the notice of appeal
may not, in and of itself, be enough to satisfy the prisoner mailbox rule, it further calls into question
the accuracy of the May 5, 2021 date on the trial court’s docket.

5
Specifically, the record includes correspondence from Brown indicating that he received a
letter from the trial court dated March 26, 2021, explaining that he needed to either file the correct
number of copies of his notice of appeal or submit a petition to proceed IFP on appeal. This
correspondence from Brown is dated April 22, 2021, and indicates that his initial notice of appeal
was filed with the trial court on March 16, 2021. The record does not contain the trial court’s
March 2021 letter to Brown, nor are there any notations on the docket regarding same.

5
As such, we now turn to Brown’s substantive arguments that the trial
court erred in dismissing his complaint as frivolous for failure to exhaust
administrative remedies. In particular, we begin with Brown’s claim that he falls
within one of the exceptions to the exhaustion requirement because of the nature of
the Officers’ actions and threats made toward him.
An action is frivolous under Rule 240(j) “if, on its face, it does not set
forth a valid cause of action.” McGriff v. Vidovich, 699 A.2d 797, 799 (Pa. Cmwlth.
1997); see also Pa.R.Civ.P. 240(j)(1), Note (“A frivolous action or proceeding has
been defined as one that ‘lacks an arguable basis either in law or in fact.’ Neitzke v.
Williams, 490 U.S. 319[] (1989).”). Among the facial defects that can be considered
by trial courts is the affirmative defense of failure to exhaust administrative
remedies. Paluch v. Palakovich, 84 A.3d 1109, 1113-14 (Pa. Cmwlth. 2014).
Generally, an inmate must “exhaust ‘administrative remedies as are available’ before
filing suit asserting federal claims.” Minor v. Kraynak, 155 A.3d 114, 124 (Pa.
Cmwlth. 2017) [quoting Section 1997e(a) of the Federal Prison Litigation Reform
Act of 1995, 42 U.S.C. § 1997e(a)]; see also Section 6603(a) of the Pennsylvania
Prison Litigation Reform Act, 42 Pa.C.S. § 6603(a). The United States Supreme
Court has explained that “proper exhaustion of administrative remedies . . . means
using all steps that the agency holds out, and doing so properly.” Woodford v. Ngo,
548 U.S. 81, 90 (2006) (quotation omitted, emphasis in original). In Kittrell v.
Watson, 88 A.3d 1091, 1092-93 (Pa. Cmwlth. 2014), we outlined each of the
necessary steps in the Department’s administrative procedures known as the Inmate
Grievance Review System.
As the trial court pointed out, Brown concedes that he did not file any
grievances or a PREA report regarding the Officers’ actions alleged in the complaint,

6
let alone complete each of the steps of the Department’s grievance process through
to exhaustion. What the trial court neglected to consider, however, are the
exceptions to the exhaustion requirement; namely, situations where an
administrative remedy is considered unavailable to an inmate. One situation where
an administrative remedy is unavailable is “when prison administrators thwart
inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.” Ross v. Blake, 578 U.S. 632, 644 (2016).
Where prison “officials misle[a]d or threaten[] individual inmates so as to prevent
their use of otherwise proper procedures[] . . . such interference with an inmate’s
pursuit of relief renders the administrative process unavailable.” Id.; see also Minor,
155 A.3d at 125 (recognizing “if an agency prevents a party from pursuing a remedy,
the agency does not ‘hold out’ a remedy, and the remedy cannot be exhausted”).
The allegations in Brown’s complaint, which we must accept as true at
this juncture, raise questions as to whether he had an “available” administrative
remedy to exhaust. Brown specifically alleges that Officer Hollis coerced him into
engaging in sexual acts by threatening his parole; that Officer Hollis threatened to
“get some guys to hurt” Brown when he turned down her repeated advances, O.R.,
Compl. at 5; that Brown was assaulted just a few days later; and that Officers Smouse
and Jones warned Brown that he would be killed if he spoke up. Finally, Brown
explicitly avers that he did not file a grievance or PREA complaint about these
incidents because he feared for his life. These serious and troubling allegations of
threats and violence raise legal and factual questions regarding whether the
administrative remedies were actually available to Brown so as to require their

7
exhaustion.6 See, e.g., Hill v. Wetzel (Pa. Cmwlth., No. 699 C.D. 2021, filed Jan. 5,
2023) (reversing trial court’s dismissal of complaint under Rule 240(j)(1) for failure
to exhaust administrative remedies because inmate alleged appellees interfered with
his ability to file grievances); Parran v. Rozum (Pa. Cmwlth., No. 239 C.D. 2012,
filed Jan. 4, 2013);7 Brown v. Croak, 312 F.3d 109 (3d Cir. 2002) (holding dispute
of fact remained regarding failure to exhaust administrative remedies where inmate
alleged he was told to wait until security investigation was complete before filing a
grievance).
Accordingly, we conclude that the trial court erred in dismissing this
action as frivolous for failure to exhaust administrative remedies at this early point
in the proceedings.8 We must therefore reverse and remand for further proceedings.

_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita

6
Even the trial court itself noted that Brown’s “fear of retaliation may be rational[.]” Trial
Ct. Order, dated March 5, 2021, at 3.

7
While not precedential, unreported panel opinions of this Court may be cited for their
persuasive value. Pa.R.A.P. 126(b); 210 Pa. Code § 69.414(a).

8
Given our disposition we need not address the remaining arguments Brown raises on appeal.

8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lamar Brown, :
Appellant :
:
v. : No. 511 C.D. 2021
:
Former C/O T. Hollis, C/O Smouse and :
C/O Jones :

ORDER

AND NOW, this 3rd day of March, 2023, the order of the Court of
Common Pleas of Clearfield County in the above-captioned matter is REVERSED,
and the matter is REMANDED to the trial court for further proceedings in
accordance with the foregoing opinion.
Jurisdiction is relinquished.

_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9376698. Public record. Not legal advice.