            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clay Caldwell,                               :
                            Appellant        :
                                             :
              v.                             :    No. 718 C.D. 2015
                                             :    Submitted: April 22, 2016
The Pa Department of Corrections,            :
and the Office of Security (BCC),            :
and Secretary J. Wetzel, et al.              :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                  FILED: July 28, 2016

              Appellant Clay Caldwell (Caldwell), pro se, appeals from an order of
the Court of Common Pleas of Centre County (trial court). The trial court’s order
granted a motion filed by the Department of Corrections (DOC), seeking to revoke
Caldwell’s in forma pauperis (IFP) status pursuant to the law known as the Prison
Litigation Reform Act (PLRA), 42 Pa. C.S. §§ 6601-6608.1 That motion arose
with regard to an amended complaint Caldwell filed against DOC and various


       1
         In addition to naming DOC and Secretary Wetzel as defendants, Caldwell also named
numerous corrections officers, “Copp, D,” who is identified as “medical adm[inistator],” and
“Dunkle, L” who is identified as “medical practitioner.” DOC filed the motion to revoke
Caldwell’s IFP status on behalf of the DOC defendants, which apparently includes all of the
named defendants except Dunkle. Dunkle filed a motion to join DOC’s motion to revoke
Caldwell’s IFP status. Hereafter, we will refer to the defendants collectively as DOC, unless
otherwise noted.
individuals employed by or serving in an official capacity for DOC. In addition to
revoking Caldwell’s IFP status, the trial court’s order directed that it would dismiss
Caldwell’s amended complaint unless Caldwell paid the filing fee for the
complaint within thirty days of the order.
               Caldwell’s amended complaint, inter alia, appears to seek mandamus
relief and also raises negligence claims.              DOC and Dunkle filed preliminary
objections to the amended complaint and DOC also filed the motion to revoke
Caldwell’s IFP status.          The motion referenced the “three-strikes” provision
contained in Section 6602(f) of the PLRA, 42 Pa. C.S. § 6602(f),2 and identified
three earlier instances of prison litigation initiated by Caldwell. DOC, joined by
Dunkle, requested that the trial court revoke Caldwell’s IFP status and dismiss the
action unless Caldwell paid the filing fee for the complaint in full. As indicated
above, the trial court granted the motion to revoke and directed that, unless
Caldwell paid the filing fee for the complaint within thirty days, the complaint
would be dismissed.
               Caldwell filed a notice of appeal, and the trial court directed him to
file a statement of errors complained of on appeal. Caldwell filed a statement of
errors on appeal, asserting, in part, that the trial court erred in revoking his IFP
status because, he claimed, he is in “imminent” danger of serious bodily injury,
and, therefore the amended complaint falls within the exception set forth in
Section 6602(f)(2) of the PLRA, which provides that “[t]he court shall not . . .

       2
          Section 6602(f) of the PLRA provides in pertinent part that an inmate has engaged in
“[a]busive litigation” if he or she “has previously filed prison condition litigation,” three or more
of which have been dismissed under Section 6602(e)(2) of the PLRA, as frivolous or malicious
or for failing to state a claim upon which relief may be granted.



                                                 2
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.” In its opinion in support of its order, the trial court rejected
Caldwell’s argument, noting the exception only applies to existing requests for
preliminary injunctive relief and/or temporary restraining orders. The trial court
also wrote that it had reviewed the pleadings and found no averments suggesting
any action implicating the exception. Accordingly, the trial court concluded that it
did not err in granting the motion.
               On appeal,3 Caldwell raises the following primary issue: whether the
trial court erred in concluding that the imminent bodily injury exception does not
apply. Based upon his claim that the exception does apply, Caldwell asserts that
the trial court erred in concluding that the amended complaint triggered the
three-strikes provision contained in Section 6602(f) of the PLRA.
               In Brown v. Beard, 11 A.3d 578 (Pa. Cmwlth. 2010), appeal
denied, 40 A.3d 1237 (Pa. 2012), we addressed the question of what constitutes an
“imminent” danger of bodily harm for the purpose of the exception to the
three-strikes provision. We referred to Commonwealth v. Capitolo, 498 A.2d 806
(Pa. 1985), in which the Supreme Court defined the term “imminent” to mean a
danger that “must be, or must reasonably appear to be, threatening to occur
immediately, near at hand, and impending.” Brown, 11 A.3d at 581 (quoting
Capitolo, 498 A.2d at 809).            Brown essentially claimed that, if the alleged

       3
         Our standard of review of a trial court’s order granting a motion to revoke IFP status
under Section 6602(f) of the PLRA is limited to considering whether constitutional rights were
violated and whether the trial court abused its discretion or erred as a matter of law. Williams v.
Syed, 782 A.2d 1090, 1093 n.4 (Pa. Cmwlth. 2001).



                                                3
mistreatment he received was repeated and were to aggravate a preexisting
condition, he could be at a higher risk of developing more severe medical
conditions.    We concluded that “it does not follow that these more severe
conditions would be ‘threatening to occur immediately, near at hand, [or]
impending.’” Brown, 11 A.3d at 581 (quoting Capitolo, 498 A.2d at 809).
              In this case, Caldwell has pleaded no facts in his amended complaint
indicating that he is in imminent danger. Rather, Caldwell’s averments relate to
his claims that DOC correctional officers allegedly abused him, which he claimed
resulted in abrasions to his wrist and knees. With regard to those alleged injuries,
Caldwell only claimed that he continues to have pain in his wrist. He also claimed
to have a degenerative bone disease, but his averments in no way suggest that his
condition places him in imminent danger of bodily harm. He avers that he needs to
see a “bone specialist,” but his averments do not indicate any imminent danger
arising from his alleged condition. In fact, the grievances Caldwell attached to the
amended complaint and DOC’s responses to the grievances indicate that medical
professionals who have examined Caldwell have diagnosed his condition as
moderate osteoarthritis. Consequently, it appears that no condition exists that
presents an “imminent” danger of bodily injury.
              Caldwell raises several other arguments in his brief, which
contains 142 numbered paragraphs, but to the degree that Caldwell has raised any
additional issues, we perceive those to be related to the underlying merits of his
amended complaint. Consequently, we need not address those other arguments
and/or issues. Accordingly, we affirm the trial court’s order.



                                P. KEVIN BROBSON, Judge

                                         4
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clay Caldwell,                        :
                        Appellant     :
                                      :
            v.                        :   No. 718 C.D. 2015
                                      :
The Pa Department of Corrections,     :
and the Office of Security (BCC),     :
and Secretary J. Wetzel, et al.       :


                                    ORDER


            AND NOW, this 28th day of July, 2016, the order of the Court of
Common Pleas of Centre County is AFFIRMED.




                              P. KEVIN BROBSON, Judge
