J-S17014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TONY R. HARPER                                 IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

DORINA VARNER, CHIEF GRIEVANCE
OFFICER IN HER OFFICIAL AND
PERSONAL CAPACITY, UNIT MANAGER
BEARJAR IN HIS OFFICIAL AND
PERSONAL CAPACITY

                         Appellees                 No. 1250 WDA 2015


                     Appeal from the Order July 13, 2015
              In the Court of Common Pleas of Somerset County
                    Civil Division at No(s): 394 CIVIL 2015


BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                        FILED APRIL 28, 2016

     Appellant, Tony R. Harper, appeals pro se from the order entered in

the Somerset County Court of Common Pleas, which denied Appellant’s

petition to proceed in forma pauperis (“IFP”) and dismissed his complaint as

frivolous pursuant to Pa.R.C.P. 240(j)(1). We affirm.

     The relevant facts and procedural history of this case are as follows.

Appellant is an inmate currently incarcerated at SCI—Laurel Highlands. On

January 29, 2015, Appellant filed an inmate grievance (“Grievance No.

548992”) in which he asked prison staff to move his bed away from the wall.

Specifically, in Grievance No. 548992, Appellant complained the placement


_____________________________

*Former Justice specially assigned to the Superior Court.
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of his bed interfered with his ability to get restful sleep because other

inmates would throw items on his bed.       On February 10, 2015, Appellant

filed a second inmate grievance (“Grievance No. 550792”) in which he

complained prison staff failed to pick up his time-sensitive mail in a timely

fashion. In Grievance No. 550792, Appellant specifically alleged he placed

his mail in the collection box at 3:45 a.m., and prison staff failed to pick it

up until the following day.

      On February 17, 2015, prison officials issued a denial of Grievance No.

548992, which explained that Appellant’s current cell placement was due to

his medical needs. On February 19, 2015, Mr. Bearjar (“Appellee Bearjar”),

a Unit Manager at SCI—Laurel Highlands, issued a denial of Grievance No.

550792, which explained that if Appellant deposited his mail at 3:45 a.m.,

prison staff might not mail it until the following day due to the prison’s mail

collection policy. Appellant appealed to the facility manager, who affirmed

the denial of both grievances. Appellant then filed a final appeal to Dorina

Varner (“Appellee Varner”), the Chief Grievance Officer of the State Office of

Inmate Grievance Appeals (“SOIGA”), who upheld the denials of Grievance

Nos. 548992 and 550792 on April 19, 2015 and April 21, 2015, respectively.

      Appellant subsequently filed a civil complaint against Appellees in

which Appellant asserted the prison’s failure to fix his bed issue constituted

cruel and unusual punishment in violation of the Eighth Amendment.

Appellant’s complaint also alleged the prisons’ mail collection policy violated


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Appellant’s due process rights.    On July 8, 2015, Appellant submitted a

petition to proceed IFP. On July 14, 2015, the court denied Appellant IFP

status and dismissed Appellant’s complaint as frivolous pursuant to Pa.R.C.P.

240(j)(1). Appellant timely filed a notice of appeal on July 24, 2015. On

August 4, 2015, the court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant

timely complied on August 28, 2015.

      Appellant raises the following issues for our review:

         DID THE [TRIAL] COURT ERR[] IN DISMISSING THE
         COMPLAINT WITHOUT GIVING APPELLANT A CHANCE [TO]
         CORRECT THE CONTENT[?]

         DID THE UNIT MANAGER BEARJAR OVERSTEP HIS
         AUTHORITY WHEN HE CHANGED THE TIME WHEN LEGAL
         MAIL GOES OUT THE JAIL[?]

         IS A PRISONER DENIED A RESTFUL SLEEP WHEN TRAFFIC
         IS WALKING BACK AND FORTH IN FRONT OF HIS BED[?]

         WHEN THE U.S. MAIL IS COLLECTED AT 6:00 A.M. EVERY
         MORNING, SINCE BEING LOCATED AT SCI[—]LAUREL
         HIGHLANDS, AND THAT POLICY IS CHANGE[D] [SO] THAT
         THE MAIL IS COLLECTED AT 12:00 ONE NIGHT, THEN AT
         10:00 THE NEXT NIGHT; 3:00 THE NEXT NIGHT, WOULD
         YOU NOT ASSUME THAT AN OFFICIAL IS PLAYING WITH
         THE OUTGOING MAIL[?]

         DID THE [TRIAL] COURT ERR[] WHEN [IT] TOOK
         [APPELLEES’] SIDE WHEN THEY DID NOT HAVE [A]
         CHANCE TO REVIEW THE EXHIBITS SUPPORTED BY
         [APPELLANT]?

(Appellant’s Brief at 4).

      Preliminarily, we observe:


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         [A]ppellate briefs and reproduced records must materially
         conform to the requirements of the Pennsylvania Rules of
         Appellate Procedure. Pa.R.A.P. 2101. This Court may
         quash or dismiss an appeal if the appellant fails to conform
         to the requirements set forth in Pennsylvania Rules of
         Appellate Procedure. Id. Although this Court is willing to
         liberally construe materials filed by a pro se litigant, pro se
         status confers no special benefit upon the appellant. To
         the contrary, any person choosing to represent himself in a
         legal proceeding must, to a reasonable extent, assume
         that his lack of expertise and legal training will be his
         undoing.

Wilkins v. Marsico, 903 A.2d 1281, 1284-85 (Pa.Super. 2006), appeal

denied, 591 Pa. 704, 918 A.2d 747 (2007) (some internal citations omitted).

      The Pennsylvania Rules of Appellate Procedure provide guidelines

regarding the required content of an appellate brief as follows:

         Rule 2111. Brief of the Appellant

         (a) General Rule.—The brief of the appellant, except as
         otherwise prescribed by these rules, shall consist of the
         following matters, separately and distinctly entitled and in
         the following order:

            (1)   Statement of jurisdiction.

            (2)   Order or other determination in question.

            (3) Statement of both the scope of review and the
            standard of review.

            (4)   Statement of the questions involved.

            (5)   Statement of the case.

            (6)   Summary of argument.

            (7) Statement of the reasons to allow an appeal to
            challenge the discretionary aspects of a sentence, if
            applicable.

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           (8)    Argument for appellant.

           (9) A short conclusion stating the precise relief
           sought.

           (10) The opinions and pleadings           specified   in
           Subdivisions (b) and (c) of this rule.

           (11) In the Superior Court, a copy of the statement
           of errors complained of on appeal, filed with the trial
           court pursuant to Rule 1925(b), or an averment that
           no order requiring a statement of errors complained
           of on appeal pursuant to Pa.R.A.P. 1925(b) was
           entered.

Pa.R.A.P. 2111(a). Additionally, Rule 2119(a) provides:

        Rule 2119. Argument

        (a) General rule. The argument shall be divided into as
        many parts as there are questions to be argued; and shall
        have at the head of each part—in distinctive type or in
        type distinctively displayed—the particular point treated
        therein, followed by such discussion and citation of
        authorities as are deemed pertinent.

Pa.R.A.P. 2119(a). Importantly:

        The argument portion of an appellate brief must include a
        pertinent discussion of the particular point raised along
        with discussion and citation of pertinent authorities. This
        Court will not consider the merits of an argument, which
        fails to cite relevant case or statutory authority. Failure to
        cite relevant legal authority constitutes waiver of the claim
        on appeal.

In re Estate of Whitley, 50 A.3d 203, 209 (Pa.Super. 2012), appeal

denied, 620 Pa. 724, 69 A.3d 603 (2013) (internal citations and quotation

marks omitted).

     As an equally important matter, Rule 240(j)(1) of the Pennsylvania

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Rules of Civil Procedure provides:

         Rule 240. In Forma Pauperis

                                  *    *    *

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

            Note: A frivolous action or proceeding has been
            defined as one that “lacks an arguable basis either in
            law or in fact.” Neitzke v. Williams, 490 U.S. 319,
            109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

Pa.R.C.P. 240(j)(1) (emphasis added) and Note.          “Appellate review of a

decision dismissing an action pursuant to Pa.R.C.P. 240(j) is limited

to…whether an appellant’s constitutional rights have been violated and

whether the trial court abused its discretion or committed an error of law.”

Bell v. Mayview State Hosp., 853 A.2d 1058, 1060 (Pa.Super. 2004).

      Section 1983 in pertinent part provides:

         Every person who, under color of any statute, ordinance,
         regulation, custom, or usage, of any State or Territory or
         the District of Columbia, subjects, or causes to be
         subjected, any citizen of the United States or other person
         within the jurisdiction thereof to the deprivation of any
         rights, privileges, or immunities secured by the
         Constitution and laws, shall be liable to the party injured in
         an action at law, suit in equity, or other proper proceeding
         for redress, except that in any action brought against a
         judicial officer for an act or omission taken in such officer’s
         judicial capacity, injunctive relief shall not be granted
         unless a declaratory decree was violated or declaratory
         relief was unavailable. …


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42 U.S.C.A. § 1983. To prevail on a claim under Section 1983, a plaintiff

must establish the violation of some cognizable federal right by state action

or action under color of law. Balent v. City of Wilkes-Barre, 542 Pa. 555,

565, 669 A.2d 309, 314 (1995).        Prisoners have a right of access to the

courts. Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606

(1996). Importantly, a prison’s policy does not violate this right, unless an

inmate suffers an actual injury to his ability to litigate a claim. Id. at 352-

53, 116 S.Ct. at 2180, 135 L.Ed.2d at ___. An actual injury occurs when a

prison’s actions hinders an inmate’s ability to pursue a non-frivolous,

arguable legal claim.   Christopher v. Harbury, 536 U.S. 403, 415, 122

S.Ct. 2179, 2187, 153 L.Ed.2d 413, ___ (2002).

      Moreover, an inmate in Pennsylvania does not have the right to be

housed in a particular facility or in a particular area within a facility. 37 Pa.

Code § 93.11(a). Significantly, “prison officials must be allowed to exercise

their judgment in the execution of policies necessary to preserve order and

maintain security free from judicial interference.”      Bronson v. Central

Office Review Committee, 554 Pa. 317, 321, 721 A.2d 357, 358 (1998).

Prison rules and regulations are presumptively valid unless a prisoner proves

otherwise. Overton v. Bazzetta, 539 U.S. 126, 132, 123 S.Ct 2162, 2168

156 L.Ed.2d 162, ___ (2003).

      Instantly, Appellant is pro se on appeal, and his appellate brief falls

woefully short of the requisite standards. Specifically, Appellant’s brief lacks

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a statement of jurisdiction, a statement of both the scope of review and

standard of review, and a summary of the argument.              See Pa.R.A.P.

2111(a)(1), (3), and (6).      Also, Appellant failed to divide his argument

section into distinct parts for each of his five issues raised on appeal. See

Pa.R.A.P. 2119(a). Further, Appellant’s brief presents no cogent argument

for his issues raised on appeal and includes only extraneous legal citations

that do not support his contentions. See In re Estate of Whitley, supra.

Appellant’s argument is merely a string of conclusory statements and vague

references to constitutional rights, which makes review of Appellant’s issues

difficult if not impossible.    The substantial defects in Appellant’s brief

arguably preclude meaningful review and constitute sufficient grounds for

this Court to suppress his brief and dismiss the appeal.

      Furthermore, the court reasoned as follows:

         Upon review of the [c]omplaint we were unable to identify
         a plausible cause of action based on the facts. While
         Appellant characterizes [Appellees] actions [as in violation]
         of the Constitution, he fails to identify in any fashion a
         precise constitutional violation performed by the Appellees
         under color of state law which forms the basis of a
         [Section 1983] claim.

         The failure of the Department of Corrections to place his
         bed in a location which was better conducive to his sleep is
         not a constitutional violation. It certainly does not amount
         to cruel and unusual punishment.

                                  *    *    *

         Similarly, no inmate has a constitutional right to have the
         inmate mail picked up at a certain time of the day or night
         to accommodate his personal mailing.

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         Finally, there is no suggestion that Appellee Varner…did
         anything more than review the appealed grievance and
         make a decision in denial. This does not amount to the
         personal involvement requirement for a [Section 1983]
         claim.

         [Because] the [c]ourt could not find under any version of
         the facts that a constitutional violation occurred, the in
         forma pauperis petition was denied pursuant to Pa.R.C.P.
         240(j)(1) as having no arguable basis under law or fact.

(See Trial Court Opinion, filed October 19, 2015, at 3-4) (internal citations

omitted).     The record supports the court’s conclusion that Appellant’s

complaint failed to raise a cognizable claim under Section 1983. See Bell,

supra.      Therefore, aside from the defects in Appellant’s brief which are

arguably fatal to his claims, we conclude the court properly dismissed

Appellant’s complaint as wholly frivolous pursuant to Pa.R.C.P. 240(j)(1).

Accordingly, we affirm.

     Order affirmed.

     Shogan, J. joins this memorandum.

     Fitzgerald, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2016




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