        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alton D. Brown,                              :
                                             :
                   Appellant                 :
                                             :
             v.                              : No. 1381 C.D. 2017
                                             : Submitted: May 11, 2018
                                             :
Kevin R. Bradford, et al.                    :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION BY
SENIOR JUDGE COLINS                                   FILED: September 25, 2018


             Alton D. Brown (Brown), an inmate at the State Correctional Institution
at Greene (SCI-Greene), appeals pro se from the August 22, 2017 order of the Court
of Common Pleas of Greene County (Trial Court) dismissing his complaint dated
April 3, 2017. For the reasons set forth below, we affirm.
             In 2017, Brown filed the complaint sub judice against Kevin R.
Bradford, an attorney with the Pennsylvania Office of the Attorney General
(Defendant Bradford), various guards, officers and employees of the Pennsylvania
Department of Corrections (DOC) (collectively, DOC Defendants), various judges
and employees of the First Judicial District (FJD) in Philadelphia (FJD Defendants),
and the Philadelphia law firm of Dugan, Brinkmann, Maginnis, and Pace (Law Firm
Defendant).1        In his complaint, Brown alleges, inter alia, that DOC Defendants
engaged in a conspiracy with FJD Defendants to sabotage a malpractice suit he filed
in the FJD against Law Firm Defendant. The malpractice action filed in the FJD
resulted in a judgment non pros that was affirmed by this Court in Brown v. Dugan,
Brinkmann, Maginnis and Pace, and John D. Brinkmann, (Pa. Cmwlth., No. 37 C.D.
2017, filed December 15, 2017). That lawsuit had alleged that Brown’s attorneys
at Law Firm Defendant committed malpractice in the federal courts in their handling
of a civil rights lawsuit he filed in 2007 relating to medical conditions caused by an
inadequate ventilation system and environmental tobacco smoke (ETS) within DOC.
Brown asserts that he filed the complaint at issue here in Greene County because
“the cause of action (sabotaging of trial on 10/19/16, inter alia) arose at SCI-Greene
(Main), the majority of the transactions or occurrences averred in the complaint took
place there, and the majority of the Appellees are located in Greene County…” and
further asserts that his attempts to file the complaint in Philadelphia County have
twice been rejected.2 (Brown’s Rely Brief at 3.)

                 Additionally, embedded in the complaint is the malpractice action
Brown brought previously against Law Firm Defendant in the FJD, including a
recounting of the history of Law Firm Defendant’s representation in his prison
conditions lawsuit, its alleged failure to properly investigate that lawsuit, and its
rationale for recommending that he withdraw the suit as not viable.3 Brown sets
forth in detail the evidence, allegedly ignored and/or suppressed by Law Firm


1
    Neither Law Firm Defendant nor Defendant Bradford participated in the appeal.
2
    In fact, 9 of the 17 named defendants in Brown’s complaint are outside Greene County.
3
  According to Brown, he allowed the Law Firm Defendant to withdraw from the ETS litigation
in 2013, and continued its prosecution pro se. (Record (R.) Item 20, Complaint ¶ 33.)

                                                 2
Defendant, that he asserts support his ETS claims. He incorporates by reference
proceedings and documents pertaining to his prison conditions litigation. According
to Brown, as a direct result of Law Firm Defendant’s malpractice and subsequent
sabotage of his attempt to prosecute the case, his chronic medical conditions caused
by the prison environment have been aggravated.
              Brown asserts that the named parties conspired to sabotage the
malpractice lawsuit he filed in FJD. Brown states that Law Firm Defendant used its
“wealth, superior knowledge, court contacts and [DOC Defendants] to sabotage his
malpractice prosecution,” and that its acts were motivated by its “[r]ight wing
ideology, [its] desire to please the conservative Republican Judges who controlled
the District Court at the time, and support the Attorney General’s Office in
Philadelphia.” (Record (R.) Item 20, Complaint ¶ 51.) With no facts whatsoever,
Brown alleges that Defendant Bradford was the “middle man” between Law Firm
Defendant and DOC Defendants and persuaded Law Firm Defendant to sabotage his
prison conditions case. He asserts that a practice exists in FJD of allowing its
unscrupulous support staff to supplement its income by catering to wealthy attorneys
in a scheme to disadvantage pro se prisoners. He alleges FJD Defendants delayed
and rejected pleadings in his malpractice lawsuit, denied motions, interfered with a
case management conference, breached their duty to train and supervise FJD staff,
and erroneously entered the judgment of non pros.
              Brown alleges that DOC Defendants denied him access to material he
needed to prosecute the malpractice lawsuit and falsely claimed that he refused to
attend his trial. Their motive in preventing prosecution of the malpractice case,
according to Brown, was prevention of any litigation of the merits of his prison
conditions lawsuit. In addition to the civil conspiracy to sabotage his malpractice


                                         3
case, he alleges the denial of his access to courts and of due process, as well as
retaliation, by both DOC Defendants and FJD Defendants.                         Brown seeks an
injunction preventing the sabotage of any matters he may bring in FJD in the future,
including sabotage by DOC Defendants, as well as a declaratory judgment that the
acts of the collective defendants violated his constitutional rights. (Id.)
               By its June 15, 2017 Decision and Order, the Trial Court deemed the
issues set forth in the complaint to be related to prison conditions and found Brown
to be an abusive litigator,4 therefore denying him in forma pauperis (IFP) status and
granting him thirty days within which to pay the requisite filing fees. (R. Item 20,
6/15/17 Trial Court Opinion and Order.) The Trial Court further found no credible
allegation that Brown was in imminent danger of bodily harm and in need of
injunctive relief and that he therefore failed to meet the exception contemplated by
Section 6602(f) of the Prison Litigation Reform Act (PLRA), 42 Pa. C.S. § 6602(f).5
(Id.) Brown failed to pay the filing fee, and on August 22, 2017, the Trial Court
dismissed the complaint.

               In its opinion, the Trial Court explained that the various allegations
made in Brown’s complaint relating to malpractice in the handling of his “prison

4
  Section 6602(f)(1) of the Prison Litigation Reform Act (PLRA), 42 Pa. C.S. § 6602(f)(1), entitled
“Abusive Litigation,” authorizes a trial court to dismiss “prison conditions litigation” filed by a
prisoner if: (1) that prisoner has filed prior “prison conditions litigation” and (2) three or more of
those actions have been dismissed under Section 6602(e)(2) of the PLRA for being “frivolous or
malicious or fail[ing] to state a claim upon which relief may be granted…”. 42 Pa. C.S. §
6602(e)(2), 6602(f)(1). Section 6602(f) of the PLRA is commonly referred to as the “three strikes
rule,” pursuant to which a trial court may dismiss a prisoner’s in forma pauperis complaint where
the prisoner has a history of filing frivolous litigation. Jae v. Good, 946 A.2d 802, 807 (Pa.
Cmwlth.), appeal denied, 959 A.2d 930 (Pa. 2008).
5
  Section 6602(f) of the PLRA states that a court shall not dismiss a request for preliminary
injunctive relief or a temporary restraining order that makes a credible allegation that a prisoner is
in imminent danger of serious bodily injury. 42 Pa. C.S. § 6602(f).

                                                  4
conditions” civil rights litigation were in fact issues related to prison conditions.
(Id.) The Trial Court noted its right under Section 6602(e)6 of the PLRA to dismiss
prison conditions litigation at any time upon a determination that the prison
conditions litigation is frivolous or fails to state a claim upon which relief may be
granted or the defendant is entitled to assert a valid affirmative defense that would
preclude the relief. The Trial Court concluded that in addition to being an abusive
litigator, Brown had also failed to state a claim with regard to alleged malpractice
by his court-appointed attorneys in the civil litigation in federal court. (Id.) The
Trial Court was persuaded by Law Firm Defendant’s rationale for determining that
Brown’s prison conditions lawsuit was not viable, as set forth by Brown in paragraph
32 of his complaint. (Id.)
               Brown unsuccessfully sought reconsideration of the Trial Court’s order
denying IFP status, and further requested recusal and a hearing on his request. (R.
Items 18-19, Motion for Reconsideration of June 15, 2017 Order, Motion for
Recusal.)     Brown argued that the numerous claims he has made in the past against
various judges of the Trial Court make the issuance of a fair determination
impossible. The Trial Court found no basis for its recusal nor for a hearing on the
matter and denied Brown’s motions. (R. Item 17, July 12, 2017 Order.) In response
to Brown’s appeal, the Trial Court filed an opinion pursuant to Rule 1925(a) of the
Pennsylvania Rules of Appellate Procedure. (R. Item 6, Statement Pursuant to Pa.
R.A.P. 1925.) Quoting its language in an October 2, 2017 order issued in an
unrelated case involving Brown, the Trial Court explained that it had no personal

6
  Section 6602(e) of the PLRA states, in relevant part, that the court shall dismiss, at any time,
prison conditions litigation if it determines that “the 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).

                                                 5
recollection of assertions made by Brown regarding past instances where Brown was
before the Trial Court, nor did it believe there was any reason to recuse itself. (Id.)
Before this Court,7 Brown argues that the Trial Court erred (i) in failing to recuse,
and (ii) in its application of the “three strikes rule.” Neither of his arguments has
merit.
               Our Supreme Court has established that unfavorable rulings do not
form the basis for a claim of bias and prejudice. Commonwealth v. Abu-Jamal, 720
A.2d 79, 90 (Pa. 1998); see also Commonwealth v. Boyle, 447 A.2d 250, 252 (Pa.
1982). A recusal is required only where the party requesting recusal establishes that
there is a substantial doubt as to the jurist’s ability to preside impartially. Boyle, 477
A.2d at 252. Brown has utterly failed to establish such substantial doubt. There is
nothing in the record to establish any basis for the Trial Court’s recusal.
               Regarding Brown’s second argument that the Trial Court erred in
applying the “three strikes rule” to deny him IFP status, we do not accept Brown’s
contention that his claims do not involve prison conditions, but rather involve
“judicial proceedings,” and that the application of the “three strikes rule” was
improper because Law Firm Defendant is not “a government party.”                           “Prison
conditions litigation” is defined in the PLRA as:

               [a] civil proceeding arising in whole or in part under
               Federal or State law with respect to the conditions of
               confinement or the effects of actions of a government
               party on the life of an individual confined in prison. The
               term includes an appeal. The term does not include
               criminal proceedings challenging the fact or duration of
               confinement in prison.
7
  “Our review of the trial court’s decision is limited to a determination of whether constitutional
rights were violated, or whether the trial court abused its discretion or committed an error of law.”
Brown v. Beard, 11 A.3d 578, 582 n.5 (Pa. Cmwlth. 2010)

                                                 6
    42 Pa. C.S. § 6601. Brown overlooks the disjunctive “or” in Section 6601, which
provides two separate ways in which a civil proceeding can be considered prison
conditions litigation.       Thus, an action that arises in part out of conditions of
confinement constitutes prison conditions litigation regardless of whether the
defendants are all government parties. His claims allege that Law Firm Defendant’s
malpractice caused aggravation of his prison-related medical condition. Moreover,
Brown’s allegations of malpractice reiterate and attempt to re-litigate the issue of
those conditions and their effect on his well-being. This action therefore falls
squarely within the statutory definition of “prison conditions litigation.”
               In addition, we note that a substantial portion of Brown’s allegations of
conspiracy involve the DOC employees’ attempts to “set the stage that would allow
them to falsely claim that [Brown] refused to attend the 10/19/16 trial, involving
[Defendant Bradford] via his unknown contacts, [various DOC Defendants], [Law
Firm Defendant]’s unknown courthouse contact and saboteur, [other DOC
Defendants], and those unknown parties working in concert with them.” (R. Item
20, Complaint ¶ 70(xvii).)8 Clearly, these actions are those of government parties

8
  As noted above, this Court has previously ruled that the trial court did not err when it entered a
judgment of non pros as to Brown’s malpractice claim, stating:


               [T]he above testimony is record evidence to support the trial court’s
               conclusion that Brown refused to participate in the proceedings on
               October 19, 2016. Given that Brown also did not appear at the first
               scheduled trial on April 18, 2016 after his request for a continuance
               prior thereto was denied, and that the trial court had already entered
               and removed a non pros when Brown failed to make the necessary
               arrangements to participate at the first trial, we find no basis upon
               which to conclude that the trial court abused its discretion in
               granting the current judgment of non pros for Brown’s failure to
               prosecute his action.

                                                 7
affecting Brown’s life while confined in prison and as such, fall within the definition
of prison conditions litigation. Brown v. Levy, 73 A.3d 514, 518 (Pa. 2013)
(“Appellee argues his action merely concerns the fact that the prothonotary denied
him access to court, and has no effect on his life in prison …[W]e agree with the
prothonotary that a petition for writ of mandamus against the prothonotary may
constitute prison conditions litigation and may be subject to the three strikes rule.”).
It is undisputed that Brown qualifies as an abusive litigator.9
               In addition, Brown’s claims against FJD Defendants are barred by
immunity. 42 Pa. C.S. §§ 8501-8550. Indeed, beyond immunity, we note that there
are other independent grounds under Pa. R. C. P. No. 240(j)10 for the denial of his
IFP status, and for the dismissal of his complaint upon failure to pay the required

Brown v. Dugan (Pa. Cmwlth., No. 37 C.D. 2017, filed December 15, 2017), slip op. at 9.

9
  In Brown v. Pennsylvania Department of Corrections, 58 A.3d 118 (Pa. Cmwlth. 2012), this
Court summarized Brown’s prolific history of filing frivolous and abusive pro se lawsuits
concerning the conditions of his confinement, quoting this Court’s decision in Brown v.
Pennsylvania Department of Corrections (Pa. Cmwlth., No. 93 M.D. 2011, filed March 29, 2012),
slip op. at 12 n.7:
               Our research has shown that Brown has filed well over twenty pro
               se matters in which he challenges the conditions in which he is
               housed and/or the medical treatment he has received for various
               alleged ailments. The matters have been filed in various Courts of
               Common Pleas, this Court, and in the Federal Courts throughout the
               country. With few exceptions, these matters have been dismissed as
               being frivolous, without merit, or for not demonstrating that Brown
               was in imminent danger of serious bodily injury.

58 A.3d at 121 (citations omitted).

10
   “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 file 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.” Pa. R. C. P. No. 240(j)(1).

                                                  8
fees. Brown describes as the gravamen of his claims the intentional sabotage of his
attempts to prosecute the malpractice case; he asserts that the unspecified actions
and inactions of both DOC Defendants and FJD Defendants, bolstered by Law Firm
Defendant, resulted in the judgment of non pros. (Brown’s brief at 7.) As previously
noted, this Court has ruled that the trial court in FJD did not err when it entered a
judgment of non pros as to Brown’s malpractice claim, and Brown is collaterally
estopped from doing so here.11
              Accordingly, having determined that the Trial Court did not err in
dismissing Brown’s complaint and denying him IFP status, we affirm the Trial
Court’s August 22, 2017 order.


                                            ____________________________________
                                            JAMES GARDNER COLINS, Senior Judge


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




11
  Finally, Brown has also filed an application for special relief, requesting that the case be
remanded to the Trial Court with instructions to file a more detailed Rule 1925(a) opinion. This
application is denied.


                                               9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alton D. Brown,                          :
                                         :
                   Appellant             :
                                         :
            v.                           : No. 1381 C.D. 2017
                                         :
                                         :
Kevin R. Bradford, et al.                :



                                 ORDER


            AND NOW, this 25th day of September, 2018, the August 22, 2017
order of the Court of Common Pleas of Greene County dismissing Appellant Alton
D. Brown’s complaint dated April 3, 2017 is AFFIRMED. Appellant’s Application
for Special Relief is DENIED.


                                   ____________________________________
                                   JAMES GARDNER COLINS, Senior Judge
