           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton D. Brown,                              :
                                             :
                              Appellant      :
                                             :
                      v.                     : No. 1774 C.D. 2017
                                             : Submitted: November 16, 2018
Robert Gilmore,                              :
Jin Byunghok and                             :
Department of Corrections                    :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                              FILED: December 21, 2018

               Alton D. Brown (Brown) appeals, pro se, the order of the Greene
County Court of Common Pleas (trial court) denying his application to proceed in
forma pauperis (IFP application). We affirm.
               Brown is an inmate who was formerly housed at the State
Correctional Institution (SCI) Greene and who is now housed at SCI Fayette. On
August 10, 2017, Brown filed a multi-count complaint against a number of
individuals associated with the Pennsylvania Department of Corrections
(Department).       The complaint raises claims considered “prison conditions
litigation” under Section 6601 of the Prison Litigation Reform Act (PLRA)1
relating to the quality of his confinement and the actions of the named individuals.

       1
         42 Pa. C.S. §6601. Section 6601 defines “prison conditions litigation,” in relevant part,
as, “A civil proceeding arising in whole or in part under Federal or State Law with respect to the
(Footnote continued on next page…)
               Brown also filed the IFP application, which the trial court denied on
September 7, 2017, based on its determination that Brown has been deemed to be
an abusive litigator under Section 6602(f) of the PLRA.2 Original Record (O.R.)
Item 14.3 In its Opinion and Order, the trial court explained:

                      It is well established that pursuant to 42 Pa. C.S.
               §6602(f), a prisoner becomes an abusive litigator and
               loses the opportunity to proceed in forma pauperis after

(continued…)

conditions of confinement or the effects of actions by a government party on the life of an
individual confined in prison.”

       2
          42 Pa. C.S. §6602(f). Section 6602(f) of the PLRA is commonly referred to as the
“three strikes rule,” and allows the trial court to dismiss a prisoner’s IFP application where the
prisoner has a history of filing frivolous litigation. Jae v. Good, 946 A.2d 802, 807 (Pa. Cmwlth.
2008). Section 6602(f) states:

                (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); or

                (2) the prisoner has previously filed prison conditions litigation
               against a person named as a defendant in the instant action or a
               person serving in the same official capacity as a named defendant
               and a court made a finding that the prior action was filed in bad
               faith or that the prisoner knowingly presented false evidence or
               testimony at a hearing or trial;

               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.

       3
         The trial court also denied Brown’s subsequent Motion for Reconsideration and Request
for a Hearing. O.R. Items 12, 13.


                                                2
               “he files three prison condition lawsuits that are
               dismissed as frivolous.” Jae v. Good, 946 A.2d 802, 807
               [(Pa. Cmwlth. 2008)].

                                              ***

                      When a prisoner has been deemed an abusive
               litigator, the only exception available to proceed in forma
               pauperis is “a credible allegation that he is in danger of
               imminent bodily harm and needs injunctive relief.” 42
               Pa. C.S. §6601(f); Brown v. Beard, 11 A.3d 578, 580
               [(Pa. Cmwlth. 2010)].

                       Here, it is clear that [Brown’s] Complaint squarely
               fits into the definition of prison litigation as it challenges
               the quality of care at SCI Greene and the actions taken by
               government employees. Moreover, there is no dispute
               that [Brown] is an abusive litigator with a well-
               established history of filing frivolous and abusive
               lawsuits in various Courts within the Commonwealth and
               on the federal level. See Brown[, 11 A.3d at 580]; Brown
               v. Pa. Dep’t of Corr., 58 A.3d 118, 121 [(Pa. Cmwlth.
               2012)].

                                              ***

               [B]ecause abusive litigators already have a history of
               frivolous lawsuits, the Court is not required to accept the
               allegations in the Complaint as true without some
               substantiation in the form of extrinsic evidence. Sehu-
               Kessa-Saa-Tabansi v. Wetzel [(Pa. Cmwlth., No. 867
               C.D. 2014, filed January 15, 2015).4]

                                              ***

                      In this matter, upon review of the record, this
               Court determines that [Brown] failed to provide
               sufficient extrinsic evidence to credibly allege that he is

       4
          See Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§69.414(a) (“Parties may . . . cite an unreported panel decision of this court issued after January
15, 2008, for its persuasive value, but not as binding precedent.”).


                                                3
              in imminent danger of serious bodily injury. [Brown]
              attached to his complaint four receipts, illustrating the
              items allegedly confiscated at intake.

                     Given [Brown’s] history of setting forth similar
              meritless allegations and the fact that these receipts are
              merely an administrative record of confiscated items and
              not evidence of any of the numerous claims set forth in
              [his] Complaint, this Court finds the receipts to be neither
              convincing nor reliable.
O.R. Item 14 at 1, 2, 3, 4-5. Based on the foregoing, the trial court denied Brown’s
IFP application and directed Brown to pay the appropriate filing fees within 45
days or face dismissal of the Complaint. Id. at 5.
              On appeal,5 Brown claims that the trial court abused its discretion and
erred as a matter of law in denying his IFP application and violated his due process
rights by denying his Motion for Reconsideration and Request for a Hearing.
However, as outlined above, the trial court did not abuse its discretion or err as a
matter of law in denying the IFP application because the extrinsic evidence offered
by Brown in the Complaint in the form of receipts of items confiscated at his
intake does not support the numerous claims raised in the Complaint or his claim
that he is in “imminent danger of serious bodily injury” as required by Section
6602(f).
              Moreover, by failing to identify any specific extrinsic evidence or
witnesses that he would present at a hearing on his Motion for Reconsideration and
Request for a Hearing, the trial court did not err in denying the motion or violate
due process. See, e.g., Brown, 58 A.3d at 123-24 (“Brown failed to substantiate his


       5
        This Court’s scope of review is limited to determining whether constitutional rights
were violated, or whether the trial court abused its discretion or committed an error of law.
Brown, 11 A.3d at 580 n.5.


                                             4
averments of imminent danger by attaching medical documentation, or any other
form of extrinsic evidence for that matter, to his pro se complaint. As such, this
Court need not accept Brown’s allegations, on their face, as ‘credible allegations’
of imminent danger. Therefore, . . . we conclude that Brown has failed to credibly
allege imminent danger of serious bodily injury for purposes of the Pennsylvania
PLRA.”); Sehu-Kessa-Saa-Tabansi, slip op. at 8-9 (“Tabansi has failed to provide
sufficient extrinsic evidence to credibly allege that he is in imminent danger of
serious bodily injury. Tabansi attempted to submit extrinsic evidence by providing
signed affidavits from three other prisoners, which generally support the
Complaint’s contention that the physical conditions of the prison cells make it
difficult to breathe. However, given Tabansi’s history of setting forth similar
meritless allegations and the fact that the affidavits basically repeat the
Complaint’s allegations verbatim, we conclude that the extrinsic evidence provided
by Tabansi is neither convincing nor reliable. Moreover, the affidavits provided by
Tabansi ‘set forth only bare, generalized assertions’ and do not appear credible due
to the fact that the other prisoners are biased against the prison establishment and
also have an interest in seeking the closure of Tabansi’s cell-block. Further, the
various ‘Inmate’s Request to Staff Member’ forms, official grievance forms,
signed declarations, and sick call forms are not credible or convincing because they
were filled out by Tabansi, and—although they attempt to provide verification of
the Complaint’s allegations—are incomplete and unverified by any DOC
correctional officers.”) (citations omitted).6

       6
          See also Brown v. Wolf (Pa. Cmwlth., No. 566 C.D. 2017, filed January 16, 2018), slip
op. at 9-10 (“Lastly, we consider Brown’s contention that the trial court denied him due process
when it did not hold a hearing. Constitutional due process provides that the government may not
“deprive any person of life, liberty or property, without due process of law.” U.S. CONST.,
(Footnote continued on next page…)
                                               5
               Accordingly, the trial court’s order is affirmed.




                                             MICHAEL H. WOJCIK, Judge


Judge Fizzano Cannon did not participate in the decision of this case.




(continued…)

amend. XIV; see also id., amend. V; PA. CONST. art. 1, §1. In the instant case, Brown identifies no
deprivation of life, liberty or property that warranted a hearing. It bears emphasizing that the
refusal to allow an inmate to proceed with IFP status does not deny access to the courts. Brown
v. Dep’t of Corr. (explaining that refusal to proceed IFP does not deny access to the courts under
the due process clauses of the U.S. and the Pennsylvania Constitutions). Brown was permitted to
file his mandamus action, and thus was not denied access to the courts. [A prisoner, whose IFP
status is revoked pursuant to the ‘three-strikes rule,’ is able to ‘proceed by paying costs’ before
the trial court dismisses the action in its entirety under Section 6602(f) of the PLRA, 42 Pa. C.S.
§6602(f). Lopez v. Haywood, 41 A.3d 184, 188 (Pa. Cmwlth. 2012)].”).


                                                6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton D. Brown,                     :
                                    :
                       Appellant    :
                                    :
                  v.                : No. 1774 C.D. 2017
                                    :
Robert Gilmore,                     :
Jin Byunghok and                    :
Department of Corrections           :

                                   ORDER


           AND NOW, this 21st day of December, 2018, the order of the Greene
County Court of Common Pleas dated September 7, 2017, is AFFIRMED.




                                    __________________________________
                                    MICHAEL H. WOJCIK, Judge
