J-S44001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 AARON CHRISTOPHER WHEELER                 :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                    Appellant              :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 CYNTHIA LINK                              :   No. 970 EDA 2018

             Appeal from the Order Entered January 16, 2018
   In the Court of Common Pleas of Montgomery County Civil Division at
                           No(s): 18-000413


BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                                  Filed July 20, 2018

      Aaron Christopher Wheeler appeals pro se from the trial court’s order

denying his petition to proceed in forma pauperis (IFP) and motion for

injunctive relief in the parties’ underlying breach of contract matter. The court

deemed the lawsuit frivolous and, thus, dismissed the matter pursuant to

Pa.R.C.P. 240(j)(1). After careful review, we affirm.

      Wheeler, an inmate at SCI-Graterford, avers that he suffers from a

terminal form of leukemia, Chronic Lymphocytic Leukemia (CLL). Wheeler

asserts that his current prison roommate, Michael Hinkle, has provided him

with necessary emotional support as he undergoes his treatment for his

illness. Wheeler alleges that prison authorities assured him that he would be

permitted to share a cell with Hinkle in exchange for his agreement to

surrender his single-cell status (“Z-Code status”).         Since that alleged

agreement, the Department of Corrections began construction for a new
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correctional institution, Phoenix-SCI, which would replace SCI-Graterford at

its current location. Because Phoenix has fewer, but larger cells, it necessarily

will require a change in the housing arrangements of the Graterford inmates.

Prison authorities posted a memo informing the Graterford inmates that they

should submit a written “Phoenix Cell Agreement” (Cell Agreement)

requesting a cellmate for Phoenix. Both Wheeler and Hinkle filled out their

individual Cell Agreements, listing each other as preferred cellmates.

       When prison authorities failed to honor Wheeler’s cellmate request for

Phoenix, he instituted the underlying “breach of contract/cell agreement”

action against, among others,1 Appellee Cynthia Link, the Superintendent of

SCI-Graterford. In his complaint, Wheeler seeks IFP status, injunctive relief

(specific performance of Cell Agreement), and costs.        Wheeler Complaint,

1/11/18, at 6. At the same time he filed his complaint, Wheeler also filed a

petition and affidavit for leave to proceed IFP, averring that he is unable to

pay the fees and costs of prosecuting the action and is unable to obtain funds

for the cost of litigation. The trial court denied Wheeler’s petition, dismissing

his complaint for frivolity and, accordingly, denying his IFP request.

       This timely appeal follows. Wheeler presents the following issues for

our consideration:

       [1] Whether the [l]ower [c]ourt erred in dismissing [Wheeler’s]
       Complaint pursuant to Pa.R.Civ.P.240 (j)(1) (for failure to plead a
       breach of contract action and/or the Court was under the
____________________________________________


1Wheeler also named John Wetzel as a defendant in the underlying suit.
Wetzel is the Secretary of Corrections.

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      impression that Petitioner was untruthful about his poverty)
      without providing [Wheeler] with a fair . . . opportunity to
      amended/correct any defect in his pleadings?

      [2] Whether the [l]ower [c]ourt [p]rocessors [sic] erred in failing
      to file [Wheeler’s] timely filed Motion for Temporary Restraining
      Order, Preliminary Injunctive Relief and/or Prospective Relief,
      Motion for Reconsideration/Reargument; Supplement[al] Motion
      for Reconsideration/Reargument within 10 days of 1/16/18
      dismissal Order; Motion for Leave to filed Amended Complaint and
      Amended Complaint within 20 days of 1/16/18 Order; Notice of
      Appeal within 30 days of 1/16/18 Order?

      [3] Whether [Wheeler’s] Complaint and Amended Complaint pled
      a breach of contract action where the Complaints should have
      been filed, served, and allowed to proceed?

      [4] Whether [Wheeler’s] Motion for Temporary Restraining Order,
      Preliminary Injunctive Relief, and/or Prospective Relief pled a
      cause of action where a[] hearing should have been . . . and
      [Wheeler] should have been heard on his entitlement to relief in
      the form of a Temporary Restraining Order, Preliminary Injunctive
      Relief and/or Prospective Relief?

      [5] Whether [Wheeler] is entitled to remand, filing and processing
      of his timely filed pleadings, cause of action and relief in his cause
      of breach of contract?

Appellant’s Brief, at iv.

      Appellate review of a decision dismissing an action pursuant to Rule

240(j) “is limited to a determination of whether the plaintiff’s constitutional

rights have been violated and whether the trial court abused its discretion or

committed an error of law.” Ocasio v. Prison Health Services, 979 A.2d

352, 354 (Pa. Super. 2009). Pursuant to Rule 240(j)(1):

      (1)    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


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             if it is satisfied that the action, proceeding or appeal is
             frivolous.

Pa.R.C.P. 240(j)(1). An action is frivolous under Rule 240(j) “if, on its face, it

does not set forth a valid cause of action.” Id., citing McGriff v. Vidovich,

699 A.2d 797, 799 (Pa. Commw. 1997).

      Instantly, the Cell Agreement for Phoenix was titled as a “request.”

Thus, it was made clear to Wheeler that he was not guaranteed to share a cell

with Hinkle at Phoenix, even if they listed each other as requested cellmates

on their respective Cell Agreements. In fact, the form specifically denotes

that prison staff has the authority to approve or disapprove an inmate’s

cellmate selection. Under such circumstances, we agree with the trial judge

that Wheeler’s lawsuit is frivolous under Rule 240(j)(1), where he failed to set

forth a valid cause of action. McGriff, supra. Additionally, because Wheeler’s

constitutional rights were not violated, we discern no abuse of discretion or

error of law on the part of the trial court. Ocasio, supra. Finally, because

Wheeler filed an IFP petition simultaneously with his breach of agreement

action, the court also properly dismissed his request for IFP status. Pa.R.C.P.

240(j)(1).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2018




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