J-S59001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JUSTIN M. CREDICO,                                IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

OFFICER ROMERO, OFFICER PEREZ, LT.
MUSE, OFFICER QUINN, UNKNOWN
REGIONAL DBP OFFICER AND IAN
CONNORS,

                            Appellees                 No. 1017 EDA 2017


                Appeal from the Order Entered February 3, 2017
              In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): January Term 2017 No. 3392


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 24, 2017

        Appellant, Justin Credico, appeals pro se from the trial court’s

February 3, 2017 order, which dismissed his civil complaint against

Appellees, who are federal prison officials, as frivolous under Pa.R.C.P.

240(j)(1). We affirm.

        The trial court summarized the procedural and factual background of

this case, as follows:

             [Appellant] commenced this action by Complaint in
        January 2017. The named Defendants are “ISM Officer Romero,
        ISM Officer Perez, ISM Officer Quinn, Lieutenant Muse, Unknown
        Regional BOP Official, and Ian Connors (BOP Central Offic.).”
        Defendants Romero, Perez, Quinn, and Muse are alleged
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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     employees of the Federal Detention Center [(FDC)] in
     Philadelphia where [Appellant] is incarcerated. Defendant
     Connors is an alleged employee of the Bureau of Prisons Central
     Office in Washington, D.C.

           [Appellant] contemporaneously filed a Petition to Proceed
     In Forma Pauperis (“IFP”) with the Complaint. The IFP Petition
     was assigned to this court. As is allowed under Pa.R.C.P.
     240(j)(1), this court reviewed the IFP Petition and the
     Complaint.

            Under a heading labeled “Introduction[,”] the Complaint
     states ‘[t]his is a civil rights action filed by [Appellant], a
     detainee at FDC Philadelphia seeking damages and injunctive
     relief, alleging retaliation, tampering with mail, fraudulent
     misrepresentations, chilled speech, and falsified misconduct
     reporting, all in violation of the First Amendment and
     Fifth/Fourteenth Amendment of the Constitution.” The section of
     the Complaint labeled “Facts” contains subheadings labeled
     “Retaliation,” “Due Process,” and “Denial of Access to Courts.”
     Lastly, the section of the Complaint labeled “Claims for Relief”
     includes allegations of “retaliation”; “supervisory liability” for
     “retaliatory    and    chilling  remarks”;     and    “fraudulent
     conceal[ment]” of “ongoing retaliatory, chillings [sic], and mail
     tamperings [sic][.”]

           Factually, the Complaint encompasses a series of incidents
     related to [Appellant]’s mail. The triggering event, according to
     the Complaint, is that [Appellant] received mail from the
     Philadelphia Court of Common Pleas, regarding an appeal,
     “which had the docketing sheet removed.” The Complaint does
     not specifically allege that Defendants removed the docketing
     statement. The Complaint does allege that [Appellant] began
     threatening to sue Defendants Romero and Perez due to the
     incident, and that as a result, [Appellant] was called to a
     meeting with Defendant Muse. The Complaint alleges that
     Defendant Muse then told [Appellant] she would instruct
     Defendant Romero how to “write up” an incident between
     [Appellant] and Defendant Romero as “a criminal threat” rather
     than “free speech.”

           The next incident described in the Complaint is an
     interaction between [Appellant] and Defendants Romero and
     Perez after [Appellant] allegedly received open legal mail. The
     Complaint alleges that [Appellant] notified Defendants Romero


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      and Perez about the open mail, and that Defendants Romero and
      Muse “began yelling at [Appellant] and retaliating against him
      again.” Specifically, the Complaint alleges that Defendant Perez
      “approached [Appellant] in a ‘menacing manner’ with a ‘closed
      fist’ then took a half-step and pointed a finger in [Appellant]’s
      face telling him he is going to the hole (SHU) if he threatened
      them again.”

            Lastly, the Complaint alleges that a “special mail policy”
      was inserted into [Appellant]’s legal mail. The Complaint does
      not describe the “special mail policy” or provide any other details
      regarding this incident.

             The court reviewed the Complaint, in conjunction with the
      Petition to Proceed In Forma Pauperis, and dismissed the action
      as frivolous [under Pa.R.C.P. 240(j)(1)]. This appeal followed.

Trial Court Opinion (TCO), 5/4/17, at 1-3 (footnote omitted).

      The trial court did not order Appellant to file a Pa.R.A.P. 1925(b)

concise statement, but it issued a Rule 1925(a) opinion on May 4, 2017.

Herein, Appellant presents two issues for our review:

      1) Whether [Appellant]’s complaint contains enough legal and
      factual matter [sic] to raise claims under the First Amendment
      for retaliation over [Appellant]’s request to ask the defendants to
      right a wrong, and, First Amendment right to protected
      communications using prison legal mail?

      2) Whether the defendants’ actions and threats to initiate
      disciplinary proceedings and the like, against [Appellant,]
      satisfies Article III standing for existence of a credible threat of
      prosecution or disciplinary action?

Appellant’s Brief at 4.

      To begin, we recognize that orders which deny IFP status and dismiss

companion complaints as frivolous are final and appealable. See Grant v.

Blaine, 868 A.2d 400, 403 (Pa. 2005). Rule 240 of the Pennsylvania Rules

of Civil Procedure states, in pertinent part:


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        (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). Additionally, “[a]ppellate review of a

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

determination of 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).

        Here, we have reviewed Appellant’s brief,1 the certified record, and the

applicable law. Additionally, we have reviewed the opinion of the Honorable

Idee C. Fox of the Court of Common Pleas of Philadelphia County.              We

conclude that Judge Fox’s well-reasoned decision accurately disposes of the

issues presented by Appellant. See TCO at 3-5. Accordingly, we adopt her

opinion as our own and affirm the order dismissing Appellant’s complaint for

the reasons set forth therein.


        Order affirmed.
____________________________________________


1   The Appellees have not filed a brief with this Court.



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J-S59001-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2017




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