          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alton D. Brown,                       :
                    Petitioner        :
                                      :
             v.                       : No. 3 M.D. 2017
                                      : SUBMITTED: October 13, 2017
Pennsylvania Department               :
of Corrections,                       :
                 Respondent           :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                FILED: January 17, 2018


             Alton D. Brown is currently confined at the State Correctional
Institution-Greene (SCI-Greene). On January 6, 2017, Brown filed a pro se “petition
for review… addressed to the Court’s original jurisdiction and in the nature of a
complaint in mandamus and equity.” (Petition for Review, 1/6/17, at 1.) Brown’s
49-page handwritten petition seeks declaratory and injunctive relief with respect to
the conditions of his confinement by the Pennsylvania Department of Corrections
(Department). Brown also filed an application to proceed in forma pauperis (IFP),
which this Court granted on January 23, 2017.         On February 22, 2017, the
Department filed preliminary objections to Brown’s petition which are now before
this Court for disposition.
             In his petition, Brown claims to be a political prisoner. He alleges that
the Department transferred him to SCI-Greene for the purpose of sabotaging his
efforts to litigate a variety of grievances in Pennsylvania’s courts. He also claims
that the Department has engaged in a program of retaliation against him in response
to his litigation activities. Brown repeatedly alleges that the Department’s retaliation
campaign against him is exposing him to imminent danger of serious injury or death.


             Statutory provisions commonly referred to as the Prison Litigation
Reform Act (PLRA), 42 Pa.C.S. §§ 6601-6608, provide for “the manner in which
prisoners can engage in prison conditions litigation, setting forth, inter alia, the
definitions of such litigation, the filing fees to be paid, and the ability of the trial
court to dismiss such litigation for various reasons.” Lopez v. Haywood, 41 A.3d
184, 186 (Pa. Cmwlth. 2012). Section 6602(e) of the PLRA states:

             (e) Dismissal of litigation.—Notwithstanding any filing
             fee which has been paid, the court shall dismiss prison
             conditions litigation at any time, including prior to service
             on the defendant, if the court determines any of the
             following:
                 (1) The allegation of indigency is untrue.
                 (2) 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 relief.

42 Pa.C.S. § 6602(e). Section 6602(f) of the PLRA provides as follows:

             (f) Abusive litigation.—If the prisoner has previously
             filed prison conditions litigation and:


                                           2
                   (1) three or more of these prior civil actions have been
                      dismissed pursuant to subsection (e)(2);
               ....
               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).


               In its preliminary objections, the Department asserts that Brown is an
abusive litigator as defined in 42 Pa.C.S. § 6602(f)(1).1 This Court has previously
described Brown’s status under the statute:

               For purposes of the Pennsylvania PLRA, Brown has a
               prolific history of filing frivolous and abusive pro se
               lawsuits concerning the conditions of his confinement.
               See, e.g., Brown v. Pennsylvania Department of
               Corrections (Brown I), (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”)
               (citations omitted); see also Brown v. Pennsylvania
               Department of Corrections, 913 A.2d 301, 306 (Pa.
               Cmwlth. 2006) (“Brown is a well-qualified abusive
               litigator within the meaning of the PLRA.”); Brown v.

       1
        The Department additionally objects to the form of Brown’s petition, arguing that it fails
to comply with Pa.R.C.P. Nos. 1028(a)(2) and 1028(a)(5). In light of our disposition of this matter,
we decline to address these objections.
                                                 3
             James, 822 A.2d 128, 131 (Pa. Cmwlth. 2003) (concluding
             that Brown has accumulated “three strikes” under section
             6602(e)(2) of the Pennsylvania PLRA and that his civil
             actions are subject to dismissal per section 6602(f)(1)).

Brown v. Pennsylvania Department of Corrections, 58 A.3d 118, 121 (Pa. Cmwlth.
2012).


             Under the statute, an inmate forfeits the opportunity to proceed IFP
following a determination that he has filed three frivolous prison condition
complaints. Jae v. Good, 946 A.2d 802, 807 (Pa. Cmwlth. 2008). “The only
exception is where the prisoner makes a credible allegation that he is in danger of
imminent bodily harm and needs injunctive relief.” Id.


             As he has done in other cases, Brown alleges here that he is in such
danger. While previously considering Brown’s allegations of imminent danger, this
Court has focused on the requirement that, in order to avoid forfeiture of the
opportunity to proceed IFP, a prisoner’s claims of imminent danger must be credible.
In light of Brown’s long history of abusive litigation, “this Court is not required to
accept these allegations as true.” Brown v. Pennsylvania Department of Corrections
(Pa. Cmwlth., No. 93 M.D. 2011, filed March 29, 2012), slip op. at 12. “[T]o
establish the ‘credible allegation’ requirement of the Pennsylvania PLRA, it [is]
imperative that he substantiate his averments with some form of evidence extrinsic
to the complaint itself, such as medical documentation.” Brown, 58 A.3d at 123.


             This Court afforded Brown an opportunity to do so in this case. On
June 2, 2017, this Court ordered that Brown “shall file, no later than July 5, 2017,
all extrinsic evidence, including medical documentation, supporting his claim that
he is in imminent danger of physical injury as a result of the prison conditions of
                                          4
which he complains in his petition for review.” On July 5, 2017, this Court extended
Brown’s deadline to provide documentation until July 17, 2017. Brown failed to file
any such extrinsic evidence supporting his claim of imminent danger, however.
(Order, 7/28/17.)


             Because Brown is an abusive litigator as defined in section 6602(f)(1)
of the PLRA, 42 Pa.C.S. § 6602(f)(1), and because he has failed to provide any
extrinsic evidence to support his allegation that he is in imminent danger of bodily
harm, Brown forfeits his IFP status. Lopez, Jae. Brown shall pay the fees and costs
associated with the filing of his petition within 30 days of this Court’s order. If he
fails to do so, his petition will be dismissed with prejudice in accordance with section
6602(f) of the PLRA, 42 Pa.C.S. § 6602(f).




                                        __________________________________
                                        BONNIE BRIGANCE LEADBETTER,
                                        Senior Judge


Judge Cosgrove did not participate in the decision of this case.




                                           5
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alton D. Brown,                       :
                   Petitioner         :
                                      :
            v.                        : No. 3 M.D. 2017
                                      :
Pennsylvania Department               :
of Corrections,                       :
                 Respondent           :



                                    ORDER

            AND NOW, this 17th day of January, 2018, the Pennsylvania

Department of Corrections’ preliminary objection to Brown’s petition for review

pursuant to section 6602(f) of the Prison Litigation Reform Act, 42 Pa.C.S. §

6602(f), is hereby SUSTAINED. Brown’s in forma pauperis status is REVOKED.

Brown is hereby directed to pay the fees and costs associated with filing of the

petition within 30 days of this Court's Order. Failure to do so will result in the

dismissal of the petition with prejudice in accordance with 42 Pa.C.S. § 6602(f).




                                      __________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Senior Judge
