            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Herman Staple,                                  :
                       Appellant                :
                                                :
               v.                               :
                                                :
                                                :   No. 1559 C.D. 2019
Marcus Miller                                   :   Submitted: February 7, 2020


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                             FILED: April 29, 2020


               Herman Staple appeals pro se the June 27, 2019 order of the Court of
Common Pleas of Centre County (trial court) dismissing his civil complaint against
Marcus Miller (Appellee) pursuant to Section 6602(f) of the Prison Litigation
Reform Act (Act),1 42 Pa.C.S. § 6602. For the following reasons, we affirm.
               On October 16, 2018, Staple commenced this action by filing a civil
complaint in the trial court alleging he was subject to excessive force during an
incident at SCI-Rockville, where Staple is an inmate. Also on October 16, 2018,
Staple filed a Petition to Proceed In Forma Pauperis, which the trial court granted
on October 24, 2018.



      1
          Act of June 18, 1998, P.L. 640, 42 Pa.C.S. §§ 6601-08.
                 On January 10, 2019, Appellee filed a motion to revoke Staple’s in
forma pauperis (IFP) status pursuant to Section 6602(f) of the Act, 42 Pa.C.S. §
6602(f),2 commonly referred to as the “three strikes rule.”3 Brown v. Pa. Dep’t of
Corrections, 58 A.3d 118, 121 (Pa. Cmwlth. 2012). The three strikes rule allows a
court to revoke a prisoner’s IFP status if the prisoner has filed three or more prison
conditions civil actions that were dismissed as frivolous or malicious, or for a failure
to state a claim. Id.
                 On May 17, 2019, the trial court granted Appellee’s motion to revoke
Staple’s IFP status pursuant to the three strikes rule and ordered Staple to pay the


       2
           Section 6602(f) of the Act provides as follows:

                 (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 [as frivolous or malicious, or for
                        failure to state a claim] 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.

42 Pa. C.S. § 6602(f)
       3
          No party challenges the fact that the trial court granted Appellee’s motion to revoke
Staple’s IFP status based on the three strikes rule.

                                                   2
entire applicable filing fee within 30 days or suffer dismissal of the complaint. On
June 27, 2019, the trial court filed an order dismissing the complaint for failure to
pay the filing fee. Appellant timely appealed the trial court’s order on July 11, 2019.4
               On appeal,5 Staple contends that the 30-day deadline imposed by the
trial court to pay the applicable filing fee was unreasonable because of the revocation
of his IFP status. See Staple’s Brief at 6-7. He claims he has been denied access to
the courts based on his inability to pay the filing fee. Id. We do not agree.
               When a court revokes a prisoner’s IFP status, “a court may dismiss the
[prisoner’s] complaint if the [prisoner] thereafter fails to pay the filing fees and costs
associated with the litigation.” Richardson v. Dep’t of Corr., 97 A.3d 430, 432 (Pa.
Cmwlth. 2014) (quoting Brown, 58 A.3d at 121). The court must provide the
prisoner with “a reasonable opportunity to ‘proceed’ with his already-begun prison
conditions litigation by paying his filing fees and costs before dismissing the matter
in its entirety.” Lopez v. Haywood, 41 A.3d 184, 188 (Pa. Cmwlth. 2012) (emphasis
omitted). However, where a prisoner thereafter “does not pay the fees [and] costs
associated with the filed [complaint] as directed by the trial court, the matter should
be dismissed.” Id. at 188-89. This Court found 45 days to be a reasonable
opportunity to pay a filing fee after revoking the revocation of a prisoner’s IFP status.
See Bailey v. Rozum (Pa. Cmwlth., No. 718 C.D. 2017, filed Mar. 2, 2018),6 slip op.

       4
         Staple originally filed this appeal in the Superior Court of Pennsylvania, which transferred
the matter to this Court by order dated September 10, 2019.
       5
           “When reviewing the decision of a trial court, our scope of review is limited to a
determination of whether constitutional rights have been violated or whether the trial court abused
its discretion or committed an error of law.” Bailey v. Wakefield, 933 A.2d 1081, 1083 n.4 (Pa.
Cmwlth. 2007).
       6
          Pursuant to Commonwealth Court Internal Operating Procedure 414(a), 210 Pa. Code §
69.414(a), unreported panel decisions of this Court, issued after January 15, 2008, may be cited
for their persuasive value.
                                                 3
at 4. Likewise, the Superior Court7 has affirmed a trial court’s order revoking IFP
status and allowing a prisoner 30 days to pay the applicable filing fee. See Spuck v.
Does (Pa. Super., No. 1292 WDA 2012, filed Sept. 25, 2013), slip op. at 5.
                Here, when the trial court revoked Staple’s IFP status pursuant to the
three strikes rule, it provided him a reasonable opportunity – 30 days – to pay the
filing fee before the complaint would be dismissed. See Bailey; Spuck. Staple failed
to pay the filing fee within the time allowed. Accordingly, the trial court did not err
in dismissing Staple’s complaint at the expiration of the allotted time period. See
Lopez.
                To the extent Staple argues that he should be allowed to pay the
applicable fees and costs in installments, he is incorrect. In Payne v. Commonwealth
Department of Corrections, 871 A.2d 795 (Pa. 2005), our Supreme Court
determined that the partial payment provisions of Section 6602(b) and (c) – which
applied only to individuals with IFP status – were unconstitutional. Further, even
had they been constitutional, the partial payment provisions of Section 6602(b) and
(c) required IFP status to apply, which status the trial court revoked here under the
three strikes rule of Section 6602(f).
                Additionally, Staple’s suggestion that he must be afforded 60 days at a
minimum to pay filing fees pursuant to Section 6602(d)(2) is likewise incorrect.8 To

       7
         Although not binding, Superior Court decisions are persuasive authority in this Court.
Lerch v. Unemployment Comp. Bd. of Review, 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
       8
           Section 6602(d)(2) provides:

                No sooner than 60 days after notice of the denial in forma pauperis
                status or the assessment of partial filing fees, the prothonotary shall
                enter a judgment of non pros in the action or strike the appeal if the
                fees remain unpaid. The action or appeal may be reinstated by the
                court for good cause shown.

                                                  4
the extent Section 6602(d)(2) contemplates partial payments of filing fees, it is
unconstitutional under Payne. Otherwise, even if not unconstitutional, Section
6602(d)(2) concerns itself with payment of filing fees following denial of IFP status,
not with scenarios where such status has been granted and then revoked pursuant to
the three strikes rule. In such a scenario, as discussed supra, a complainant must
comply with the time period granted by a court as a reasonable opportunity to
proceed with already-begun prison conditions litigation by timely paying the
applicable fees and costs. See Lopez.
              Finally, to the extent he argues that Section 6602(f) violates equal
protection by limiting his access to the courts, Staple is incorrect. As this Court has
previously explained, “requiring a prisoner to pay the filing fees that are imposed on
all litigants in a civil case does not, standing alone, violate that prisoner’s right of
meaningful access to the courts.” Jae v. Good, 946 A.2d 802, 808 (Pa. Cmwlth.
2008); see also Richardson, 97 A.3d at 434–35.
              For the foregoing reasons, the order of the trial court is affirmed.




                                         __________________________________
                                         CHRISTINE FIZZANO CANNON, Judge




42 Pa.C.S. § 6602(d)(2).

                                           5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Herman Staple,                       :
                 Appellant           :
                                     :
           v.                        :
                                     :
                                     :   No. 1559 C.D. 2019
Marcus Miller                        :


                                ORDER


           AND NOW, this 29th day of April, 2020, the June 27, 2019 order of
the Court of Common Pleas of Centre County is AFFIRMED.



                                  __________________________________
                                  CHRISTINE FIZZANO CANNON, Judge
