              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Richard Jae,                        :
                             Appellant   :
                                         :
               v.                        :   No. 1342 C.D. 2016
                                         :   Submitted: April 28, 2017
Warden Harper, Allegheny County          :
Jail Mailroom Staff, Corizon Medical     :
and Allegheny County                     :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE JULIA K. HEARTHWAY, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                             FILED: August 14, 2017



               John Richard Jae (Appellant) appeals, pro se, from the order of the
Court of Common Pleas of Allegheny County (trial court), dismissing the civil
rights complaint he filed challenging the conditions at the prison where he was
incarcerated. The trial court dismissed Appellant’s complaint under the authority
of the Prison Litigation Reform Act (Act),1 which permits a court to deny a
prisoner in forma pauperis status and to dismiss a complaint challenging prison
conditions where the prisoner has had three prior prison conditions actions
dismissed as frivolous or malicious or, alternatively, where the prisoner’s


      1
          42 Pa C.S. §§ 6601-6608.
complaint fails to state a claim. For the reasons that follow, we reverse the trial
court’s order and remand for further consideration in accordance with this opinion.
               Appellant      is     currently       incarcerated   at   State   Correctional
Institution-Forest (SCI-Forest). Appellant was incarcerated at Allegheny County
Jail (ACJ) from May 5, 2015, to June 1, 2015, in connection with his attendance at
court proceedings for a criminal case against him. On October 15, 2016, Appellant
filed the instant action against Warden Harper (Harper) of the ACJ, the ACJ
Mailroom Staff (Mailroom Staff), Corizon Medical (Corizon), and Allegheny
County (collectively, Appellees). Appellant filed his complaint alleging several
causes of action, including, inter alia, violations of the First Amendment to the
United States Constitution,2 the Religious Land Use and Institutionalized Persons
Act of 2000,3 the Eighth Amendment to the United States Constitution,4 the
Americans with Disabilities Act of 1990 (ADA),5 and the Rehabilitation Act of
1973.6     (Certified Record (C.R.), No. 1.)              Appellant alleged that Appellees
deprived him of bringing his personal books to ACJ, failed to provide him with
reading materials at the jail library, failed to prescribe him mattresses and pillows
for medical reasons, unjustifiably delayed providing him with his mail, failed to
provide him with his prescribed heart medication, and failed to provide adequate
wheelchair-accessible showers. (Id.) Appellant simultaneously filed a petition to
proceed in forma pauperis. (C.R., Item No. 2.)
      2
          U.S. Const. amend. I.
      3
          42 U.S.C. §§ 2000cc to 2000cc-5.
      4
          U.S. Const. amend. VIII.
      5
          42 U.S.C. §§ 12101-12213.
      6
          29 U.S.C. §§ 701-796.



                                                 2
                On January 14, 2016, the trial court granted Appellant’s petition to
proceed in forma pauperis and reinstated his complaint.                 (C.R., Item No. 4.)
Appellant served Harper, Mailroom Staff, and ACJ on May 3, 2016.7 (C.R., Item
Nos. 6-8.) Harper, Mailroom Staff, and ACJ then filed a joint motion to revoke
Appellant’s in forma pauperis status under Section 6602(f) of the Act, 42 Pa. C.S.
§ 6602(f). (C.R., Item No. 11.) Appellant filed a motion for leave to file a
responsive brief on June 14, 2016. (C.R., Item No. 17.) The trial court granted the
joint motion to revoke Appellant’s in forma pauperis status and dismissed his
complaint on June 29, 2016. (C.R., Item No. 20.) Appellant filed a notice of
appeal and a statement of errors complained of on appeal. (C.R., Item No. 24, 27.)
The trial court issued an opinion, dated September 30, 2016, in response thereto.8
(C.R., Item Nos. 24, 28.) The trial court explained that it dismissed Appellant’s
complaint, in its entirety, under Section 6602(f). (C.R., Item No. 20.) The trial
court further explained that it also dismissed two of Appellant’s claims under
Section 6602(e)(2) of the Act, 42 Pa. C.S. § 6602(e)(2), for failing to state a claim.
                On appeal,9 Appellant raises three arguments: (1) that the trial court
erred by revoking Appellant’s in forma pauperis status and dismissing his
complaint; (2) that the trial court erred in dismissing Appellant’s complaint without
first giving him the opportunity to pay the filing fee; and (3) that the trial court


       7
           Appellant served Corizon on June 28, 2016. (C.R., Item No. 19.)
       8
           See Pa. R.A.P. 1925(a).
       9
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.



                                                3
erred in granting Appellees’ motion to revoke Appellant’s in forma pauperis status
and dismiss Appellant’s complaint without allowing Appellant to file a brief in
response to the motion.
                 Appellant first argues that the trial court erred in revoking his in forma
pauperis status and dismissing his complaint pursuant to Section 6602(f) of the
Act. Section 6602(f) of the Act allows a court to dismiss a prison conditions action
if “three or more of these prior civil actions have been dismissed pursuant to
subsection (e)(2).” Appellant previously came before this Court in another prison
conditions action. See Jae v. Good, 946 A.2d 802 (Pa. Cmwlth.), appeal denied,
959 A.2d 930 (Pa. 2008), cert. denied, 555 U.S. 1156 (2009). There, we held that
the Act, not the federal version of the “three strikes” rule,10 applied to prison
conditions actions filed in state court. Jae, 946 A.2d at 810.
                 Appellant now submits that he is not, in fact, an abusive litigator
under Section 6602(f) of the Act and that Appellees cannot point to a single prison
conditions suit that he filed in state court which was dismissed as frivolous or for
failure to state a claim. Appellant cites Jae in support of his argument that only
suits dismissed in state court pursuant to Section 6602(f) of the Act count toward
the “three strike rule.” Appellant, therefore, argues that Appellees’ citations to
Appellant’s federal cases dismissed under the federal analog are irrelevant. While

       10
            The federal version of the “three strikes rule” provides:
       (g) In no event shall a prisoner bring a civil action or appeal a judgment in a civil
       action or proceeding under this section if the prisoner has, on 3 or more prior
       occasions, while incarcerated or detained in any facility, brought an action or
       appeal in a court of the United States that was dismissed on the grounds that it is
       frivolous, malicious, or fails to state a claim upon which relief may be granted,
       unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g).



                                                   4
Appellant is correct that, pursuant to our holding in Jae, federal suits dismissed
under 28 U.S.C. § 1915(g) have no bearing whatsoever on a dismissal under
Section 6602(f) of the Act, Appellant fails to recognize that, in Jae, we affirmed
the court’s determination that Appellant is, in fact, an abusive litigator under
Section 6602(f) of the Act. In doing so, we noted that other state courts dismissed
fourteen of Appellant’s prior prison conditions suits under Section 6602(e)(2) as
frivolous, malicious, or for failing to state a claim. See id. at 806, 810. Appellant,
therefore, is an adjudicated abusive litigator and has been since 2008, when we
affirmed the court’s determination in Jae. See id. at 806. We, therefore, affirm the
trial court’s order insofar as it revokes Appellant’s in forma pauperis status.
              Appellant, nonetheless, finds himself on stronger footing with his next
argument that the trial court erred in dismissing his complaint without first giving
him the opportunity to pay the filing fee. We note at the outset that the three strike
rule in Section 6602(f) of the Act “does not prevent prisoners from filing any
number of civil actions challenging prison conditions,” it only restricts their ability
to proceed in forma pauperis. Id. at 809. Once a court revokes a prisoner’s in
forma pauperis status, the prisoner is no longer “proceeding” in forma pauperis.
Lopez v. Haywood, 41 A.3d 184, 188 (Pa. Cmwlth. 2012). Once a prisoner is no
longer “proceeding” in forma pauperis, a court cannot dismiss his complaint under
Section 6602(f) solely based on prior dismissals of other complaints. Id. Allowing
a court to do so unconstitutionally forecloses meaningful access to the courts.11 Id.
A prisoner whose in forma pauperis status is revoked must, instead, be permitted

       11
          In Jae, we upheld Section 6602(f) of the Act as constitutional because it “does not,
standing alone, violate the prisoner’s right of meaningful access to the courts” where it merely
precludes the prisoner from proceeding in forma pauperis. Jae, 946 A.2d at 808.



                                               5
to “proceed by paying costs” before the trial court dismisses his complaint under
Section 6602(f) of the Act. Id. Here, the trial court revoked Appellant’s in forma
pauperis status and simultaneously dismissed his complaint, in its entirety, under
Section 6602(f). At no time after revoking his in forma pauperis status did the trial
court afford Appellant the opportunity to pay a filing fee. As applied here, Lopez
could not be clearer that the trial court erred in dismissing Appellant’s complaint
under Section 6602(f). See id.
                The trial court also relied upon Section 6602(e)(2) of the Act to
specifically dismiss two of Appellant’s claims. Unlike Section 6602(f) of the Act,
a court shall dismiss a complaint “notwithstanding any filing fee which has been
paid [if 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) (emphasis added). In other words, a court that
revokes a prisoner’s in forma pauperis status need not afford him the opportunity
to pay fees if his complaint is dismissed under Section 6602(e)(2).
                Here, the trial court dismissed Appellant’s ADA claim under
Section 6602(e)(2) of the Act. Appellant averred in his complaint that he could
access the showers only with the assistance of another inmate.             (C.R., Item
No. 1 at 14.)     The trial court, citing Mason v. Correctional Medical Services,
Inc., 559 F.3d 880 (8th Cir. 2009), explained that an inmate is not deprived of
“meaningful access” under the ADA where a fellow inmate assists a disabled
inmate to access prison facilities or services.12 Mason, however, was decided in

      12
           Section 12131 of the ADA, 42 U.S.C. § 12131, provides:
(Footnote continued on next page…)

                                               6
the context of a visual impairment. In Mason, a Missouri state prisoner, Mason,
suffered a blood clot resulting in permanent blindness in his left eye. Id. at 883.
The prison provided Mason with a prisoner assistant, but Mason requested a
trained assistant capable of assisting him in day-to-day activities. Id. at 887. The
Court there held that the prison reasonably accommodated Mason by making a
prisoner assistant available to help Mason with his day-to-day activities.                      Id.
at 888. The prison, therefore, did not deprive him of meaningful access under the
ADA by failing to make a trained assistant available. Id. The courts have not,
however, extended the holding or rationale of Mason into the realm of
wheelchair-bound inmates. We, therefore, cannot conclude at this early stage of
the proceedings that Appellant failed to state a claim under the ADA.
               The trial court also dismissed Appellant’s “medical malpractice”
claims against Corizon on the grounds that Appellant failed to file a certificate of
merit as required by Pa. R.C.P. No. 1042.3(a)(1).13 Inspection of Appellant’s

(continued…)

       The term “qualified individual with a disability” means an individual with a
       disability who, with or without reasonable modifications to rules, policies, or
       practices, the removal of architectural, communication, or transportation barriers,
       or the provision of auxiliary aids and services, meets the essential eligibility
       requirements for the receipt of services or the participation in programs or
       activities provided by a public entity.
       13
            This rule requires that, in an action based upon allegations of medical malpractice, the
plaintiff file a certificate of merit, within sixty days of filing his complaint, that:
       an appropriate licensed professional has supplied a written statement that there
       exists a reasonable probability that the care, skill or knowledge exercised or
       exhibited in the treatment, practice or work that is the subject of the complaint,
       fell outside acceptable professional standards and that such conduct was a cause
       in bringing about the harm.
Pa. R.C.P. No. 1042.3(a)(1).



                                                 7
complaint reveals that Appellant does not allege medical malpractice, but rather
that Corizon denied him medical care and treatment, constituting deliberate
indifference and a violation of the Eighth Amendment. (C.R., Item No. 1 at 8-9.)
The deliberate indifference standard in the context of a violation of the Eighth
Amendment contains both an objective element and a subjective element.
Kretchmar v. Dep’t of Corr., 831 A.2d 793, 798 (Pa. Cmwlth. 2003), appeal
denied, 847 A.2d 1289 (Pa. 2008). The former requires that the deprivation be
objectively, sufficiently serious. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
A deprivation is sufficiently serious when a prison official’s act or omission results
in the denial of the minimal civilized measure of life’s necessities. Id. at 834. The
subjective element is met only when a prison official knows of and disregards an
excessive risk to inmate health or safety. Id. at 837. Furthermore, the prison
official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference. Id.
               As a pro se litigant, we afford Appellant’s complaint a liberal
construction when analyzing his claims.14 Appellant avers that for the duration of
his incarceration at ACJ, from May 5, 2015, to June 1, 2015, Corizon denied him
Cardizem heart medication. (C.R., Item No. 1 at 8-9.) Appellant avers that he
requires Cardizem to treat his cardiomyopathy and has taken the same for the past
10 years. (Id. at 8.) Appellant attributes this denial of medication to Corizon
nurses continually running out of Cardizem, and Corizon failing to keep Cardizem


       14
          See Mueller v. Pa. State Police Headquarters, 532 A.2d 900, 902 (Pa. Cmwlth. 1987)
(“While pleadings filed by pro se litigants are to be construed liberally, a pro se litigant is not to
be given any particular advantage because of his lack of knowledge of the law.”).



                                                  8
adequately stocked. (Id.) Appellant also alleges that Corizon’s denial of Cardizem
caused Appellant to suffer chest and heart pain. (Id. at 9.) Appellant further
alleges that Corizon’s denial of his medication showed deliberate indifference to
his serious medical needs and subjected him to unnecessary risk of another heart
attack.15    (Id.)   Appellant sufficiently pleads facts at this early stage of the
proceedings to state a claim under the Eighth Amendment, and we, therefore,
conclude that the trial court erred in dismissing Appellant’s Eighth Amendment
(not medical malpractice) claim against Corizon.
               Appellant’s six other self-described “causes of action” went
unaddressed by the trial court in its opinion. The trial court’s order is no more
enlightening, explaining only that it dismissed Appellant’s complaint under
Section 6602(f) of the Act.         (C.R., Item No. 20.)         As Lopez makes clear,
Appellant’s complaint cannot be dismissed solely because he failed to pay the
requisite filing fees under Section 6602(f). See Lopez, 41 A.3d at 188. Harper and
Allegheny County cite McCool v. Department of Corrections, 984 A.2d 565 (Pa.
Cmwlth. 2009), appeal denied, 989 A.2d 10 (Pa. 2010), in support of their
argument that the trial court properly dismissed Appellant’s complaint without
affording him the opportunity to pay filing fees. In McCool, the court revoked the
prisoner’s in forma pauperis status under Section 6602(f) and dismissed his
complaint under Section 6602(e)(2). The prisoner appealed, arguing that the court
should have afforded him the opportunity to pay filing fees before dismissing his
complaint.     We affirmed, reasoning that the court could have dismissed the

       15
         Appellant alleges to have already suffered one heart attack, but he does not specify
when such heart attack occurred. (C.R., Item No. 1 at 8.)



                                             9
prisoner’s complaint for failure to state a claim under Section 6602(e)(2) even if
the prisoner had never been granted in forma pauperis status and paid the filing
fees to begin with.16 Here, however, the trial court’s order and subsequent opinion
merit a different result. The trial court only relied upon Section 6602(e)(2) of the
Act in dismissing Appellant’s ADA and Eighth Amendment claims.                        As we
discussed supra, the trial court erred in that regard. The trial court offered no
explanation of Section 6602(e)(2)’s applicability to Appellant’s other six claims.
Without such explanation, we must conclude that the trial court erred in dismissing
the other six claims in Appellant’s complaint left unaddressed by the trial court.
              The trial court also cites to Section 4904 of the Crimes Code, 18 Pa.
C.S. § 4904, to justify not affording Appellant the opportunity to pay filing fees
before dismissing his complaint. Section 4904 of the Crimes Code provides that
“[a] person commits a misdemeanor of the second degree if, with intent to mislead
a public servant in performing his official function, he [] makes any written false
statement which he does not believe to be true.” In his petition for in forma
pauperis status, Appellant averred under penalty of Section 4904 that he could not
pay the fees and costs associated with the instant action and could not obtain funds
from anyone. (C.R., Item No. 2.) The trial court appears to opine that by paying
costs and fees now, Appellant must have made a false statement of inability to pay
costs and fees in his petition for in forma pauperis status. A present ability to pay
costs and fees does not necessarily mean that Appellant made false statements in
his petition for in forma pauperis status. Appellant’s circumstances may have

       16
           As noted above, a court may dismiss a prison conditions action under
Section 6602(e)(2) of the Act, “notwithstanding any filing fee which has been paid.” (Emphasis
added.)



                                             10
changed such that he is now able to pay costs and fees.                   Such a change in
circumstance is contemplated in Pa. R.C.P. No. 240. This rule provides that “[a]
party permitted to proceed in forma pauperis has a continuing obligation to inform
the court of improvement in the party’s financial circumstances which will
enable the party to pay costs.” Pa. R.C.P. No. 240(e). The trial court, therefore,
improperly relied upon Section 4904 of the Crimes Code to bar Appellant from
paying costs and fees before dismissing his complaint.17
              In light of our determination that the trial court erred in dismissing
Appellant’s complaint, we need not evaluate Appellant’s third argument—that the
trial court erred in denying him the opportunity to file a responsive brief to
Appellees’ motion to revoke his in forma pauperis status and dismiss his
complaint.
              We, therefore, affirm the trial court’s order to the extent that it
revokes Appellant’s in forma pauperis status, reverse the order to the extent that it
dismisses Appellant’s complaint, and remand the matter to the trial court with
instruction that the trial court compile a list of the filing fees and costs associated
with this matter that Appellant would have had to pay had he not been granted in
forma pauperis status, provide that information to Appellant within a reasonable
time of this Court’s order, and allot Appellant a reasonable time period within


       17
          Furthermore, the trial court’s reasoning flies in the face of our holding in Lopez. As
discussed supra, we held that the trial court in Lopez should have afforded the appellant the
opportunity to pay costs and fees before dismissing his complaint pursuant to Section 6602(f) of
the Act. Under the trial court’s reasoning, the appellant in Lopez would also violate
Section 4904 of the Crimes Code by paying costs and fees after averring that he was unable to do
so in his petition for in forma pauperis status. Abiding by the trial court’s application of
Section 4904 would, therefore, upend our holding in Lopez.



                                              11
which to pay those fees and costs after receiving the information from the trial
court.




                                P. KEVIN BROBSON, Judge



Judge Wojcik did not participate in the decision of this case.




                                         12
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Richard Jae,                        :
                         Appellant       :
                                         :
            v.                           :   No. 1342 C.D. 2016
                                         :
Warden Harper, Allegheny County          :
Jail Mailroom Staff, Corizon Medical     :
and Allegheny County                     :



                                     ORDER


            AND NOW, this 14th day of August, 2017, the order of the Court of
Common Pleas of Allegheny County is AFFIRMED in part, and REVERSED in
part, and the matter is REMANDED for further action in accordance with this
opinion.
            Jurisdiction relinquished.




                               P. KEVIN BROBSON, Judge
