        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Ronald D. Weaver,                     :
                                      :
                   Appellant          :
                                      :
             v.                       : No. 1860 C.D. 2016
                                      : Submitted: May 19, 2017
Commonwealth of Pennsylvania          :
Department of Corrections Employees: :
Susan Shoff, Officer Evanisko, Eugene :
Santorella, Trevor Wingard, and       :
Dorina Varner                         :




BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                     FILED: August 8, 2017

             On March 29, 2016, the Somerset County Court of Common Pleas
(Trial Court) issued an order revoking the in forma pauperis (IFP) status of Ronald
D. Weaver (Appellant) under Section 6602(f) of the Prison Litigation Reform Act
(PLRA), 42 Pa. C.S. § 6602(f), commonly known as the “three strikes” rule. On
April 27, 2016, Appellant appealed the revocation to the Pennsylvania Superior
Court, and by memorandum filed September 29, 2016, the Superior Court
transferred the appeal to this Court. Pa. R.A.P. 752 (a). By the Trial Court’s order,
Appellant was granted thirty days in which to pay any and all applicable filing fees
associated with his September 24, 2013 complaint alleging prison conditions
harmful to his health. In his complaint, Appellant alleges that defendants at the
State Correctional Institute at Laurel Highlands failed to investigate or adequately
respond to his complaints of exposure to inmates’ smoking tobacco and burning
pine tree air fresheners in the housing unit. The defendants named in Appellant’s
complaint filed a Motion to Revoke IFP on February 18, 2016; Appellant requested
that a hearing on the motion be held without his presence or participation, and the
hearing was held on March 29, 2016. Following this hearing, the Trial Court
ordered the dismissal of said complaint in the event the filing fees were not paid.
              On appeal, Appellant contends that the Trial Court erred in revoking
his in forma pauperis status. We do not agree.1
              Under Subsection 6602(e)(2) of the PLRA, a court shall dismiss
prison conditions litigation at any time if the court 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)(2). Section 6602(f) of the PLRA provides:

              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


1
 Our review is limited to a determination of whether constitutional rights were violated, whether
an error of law was committed, or whether the trial court abused its discretion. Brown v. Beard,
11 A.3d 578, 580 n.5 (Pa. Cmwlth. 2010).

                                               2
             (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) (emphasis added). Appellant is an abusive litigator; he has
had at least five prior actions dismissed pursuant to Subsection 6602(e)(2).
(Certified Record, Motion to Revoke IFP, Exhibits A-E.) As a result of his status
as an abusive litigator, the provisions in subsection (b) and (f) of Pennsylvania
Rule of Civil Procedure 240 that provide litigants with scant financial resources
access to the courts are inapplicable unless Appellant “is in imminent danger of
serious injury.” 42 Pa. C.S. § 6602; see also Pa. R.C.P. No. 240(j)(1).
             Here, Appellant argues, inter alia, that he has credibly alleged
imminent danger in the form of abuse by prison employees by “torture by
secondhand smoke and the burning of toxic air fresheners.” (Appellant’s Brief at
11.) Appellant alleges this claim is corroborated by medical evidence. However,
the record contains an affidavit from the prison medical department regarding
Appellant’s medical history that documents a series of tests and treatment provided
in response to Appellant’s medical complaints; the affidavit provides no
corroborating evidence to support his claim, but Appellant argues nonetheless that
the information provided in the affidavit is false. (Id.; March 11, 2016 Affidavit of
Corrections Health Care Administrator, SCI-Laurel Highlands.)


                                          3
             In its thorough, well-reasoned 1925(a) opinion, the Trial Court noted
that Appellant never requested preliminary injunctive relief or a temporary
restraining order as required by 42 Pa. C.S. § 6602(f) for the “imminent danger”
exception to the “three strikes rule” to apply.         Moreover, the Trial Court
determined Appellant failed to offer credible allegations that he was in imminent
danger of serious bodily injury, instead providing only references to deleterious
health effects from exposure to secondhand smoke.
             The Pennsylvania Supreme Court has defined “imminent” as danger
that “must be, or must reasonably appear to be, threatening to occur immediately,
near at hand, and impending.” Commonwealth v. Capitolo, 498 A.2d 806, 809 (Pa.
1985). Our Court has defined a “credible allegation” as one that goes “beyond
being merely rationale [sic] and conceivable and must possess the additional
characteristics of being reliable and convincing.”          Brown v. Pennsylvania
Department of Corrections, 58 A.3d 118, 123 (Pa. Cmwlth. 2012). In Brown, we
held that our Court “need not accept [the inmate’s] allegations, on their face, as
‘credible allegations’ of imminent danger,” and that because the inmate had
not substantiated his averments of imminent danger with medical documentation or
other evidence, he had failed to allege imminent danger of serious bodily injury for
purposes of the PLRA. Id. We find here that Appellant has failed to meet the
“credible allegation” standard set by the PLRA.
             We find no merit in Appellant’s other argument, that the revocation of
his IFP status effectively denies him his equal protection rights as well as his rights
under the Remedies Clause of Article 1, Section 11 of the Pennsylvania




                                          4
Constitution,2 by denying him access to the courts. In Jae v. Good, 946 A.2d 802
(Pa. Cmwlth. 2008), our Court addressed the constitutionality of the “three strikes
rule” set forth in Section 6602(f) of the PLRA, and established that the rule does
not prevent prisoners from filing any number of civil actions challenging prison
conditions, but rather only restricts their ability to pursue such actions in forma
pauperis. Id. at 809. Holding that Section 6602(f) does not violate the equal
protection clauses of the United States Constitution or the Pennsylvania
Constitution, our Court opined:

                There is a legitimate governmental interest in deterring
                frivolous law suits, and Section 6602(f) advances that
                goal rationally by depriving an abusive litigator of the
                ability to proceed in forma pauperis. Further, the
                legislation balances the need to deter prisoners from
                filing frivolous litigation against the need to protect
                prisoners from physical harm.

Id. In Smolsky v. General Assembly, 34 A.3d 316 (Pa. Cmwlth. 2011), this Court
rejected an inmate’s argument that his right to access to the courts was denied by a
revocation of IFP status, holding that the “three strikes rule” did not violate the
Remedies Clause of the Pennsylvania Constitution.                      Quoting Jae, the Court


2
    Article 1, Section 11 of the Pennsylvania Constitution provides:

                All courts shall be open; and every man for an injury done him in
                his lands, goods, person or reputation shall have the remedy by due
                course of law, and right and justice administered without sale,
                denial or delay. Suits may be brought against the Commonwealth
                in such manner, in such courts and in such cases as the Legislature
                may by law direct.




                                                 5
explained that the right of access to courts was not absolute, and the requirement
that a prisoner pay filing fees that are imposed on all civil litigants does not,
standing alone, violate that prisoner’s right of meaningful access to the courts.
Smolsky, 34 A.3d at 320.
             We conclude therefore that the Trial Court properly revoked
Appellant’s in forma pauperis status, and provided him with thirty days to pay the
full filing fee. Lopez v. Haywood, 41 A.3d 184 (Pa. Cmwlth. 2012). Accordingly,
we affirm the order of the Trial Court.




                                     __________ ___________________________
                                     JAMES GARDNER COLINS, Senior Judge




                                          6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ronald D. Weaver,                     :
                                      :
                   Appellant          :
                                      :
             v.                       : No. 1860 C.D. 2016
                                      :
Commonwealth of Pennsylvania          :
Department of Corrections Employees: :
Susan Shoff, Officer Evanisko, Eugene :
Santorella, Trevor Wingard, and       :
Dorina Varner                         :



                                ORDER

           AND NOW, this 8th day of August, 2017, the order of the Somerset
County Court of Common Pleas in the above-captioned matter is hereby
AFFIRMED.



                                 __________ ___________________________
                                 JAMES GARDNER COLINS, Senior Judge
