D. Bailey v. A. Miller, et al. (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Demetrius Bailey, Appellant v. Ann Miller, Lt. Baird, R. Reed, C. Mitchell BEFORE: : : : : : : : No. 1688 C.D. 2007 Submitted: January 18, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION BY JUDGE FRIEDMAN FILED: March 6, 2008 Demetrius Bailey (Bailey), proceeding in forma pauperis, appeals pro se from the July 31, 2007, order of the Court of Common Pleas of Huntingdon County (trial court), which denied Bailey s petition to file his action in forma pauperis in the trial court pursuant to Pa. R.C.P. No. 240(j).1 Ann Miller, Lt. Baird, R. Reed and C. Mitchell (together, Appellees) have filed a motion to revoke Bailey s in forma pauperis status in this court and dismiss the appeal. We grant Appellees motion. Bailey is an inmate at the State Correctional Institution at Huntingdon (SCI-Huntingdon). Appellees work at the prison. Baird is a security lieutenant; 1 Pa. R.C.P. No. 240(j) states that, 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 on the petition, may dismiss the action, proceeding or appeal if it is satisfied that the action, proceeding or appeal is frivolous. Miller is a nurse; and both Reed and Mitchell are hearing examiners. (Trial ct. op. at 1.) Bailey filed a Complaint and in forma pauperis petition with the trial court. In his Complaint, Bailey alleged that: (1) he had filed a mandamus action against prison employees to compel them to allow Bailey access to the law library, (Complaint, ¶7); (2) in retaliation, Baird fabricated a misconduct against Bailey for abusive or obscene language and unauthorized use of the mail, relating to a particular letter, (Complaint, ¶8); and (3) to cover up Baird s fabrication, Reed found Bailey guilty in a proceeding where no one produced the letter and where Reed would not allow Bailey to present witnesses or a handwriting analysis of the letter, (Complaint, ¶9). Bailey further alleged that: (1) he had filed complaints against Miller for violating medical procedures, becoming hostile and using foul language, (Complaint, ¶10); (2) in addition, Bailey had filed a complaint with the Bureau of Processional and Occupational Affairs against a friend of Miller s, (Complaint, ¶11); (3) in retaliation, Miller fabricated a misconduct for sexual harassment and for threatening an employee in a letter, (Complaint, ¶12); and (4) although Mitchell dismissed the threat charge, he found Bailey guilty of sexual harassment without allowing Bailey to present witnesses, (Complaint, ¶13). Finally, Bailey alleged that Appellees have conspired with other staff to threaten him and deny him access to the law library in retaliation for his alleged sexual harassment of Miller. Bailey alleged that Appellees have stated, don t no nigger mess with our white women. (Complaint, ¶15.) 2 The trial court denied the in forma pauperis petition, concluding that the Complaint was frivolous because Bailey failed to plead facts to support a cause of action for retaliation.2 Bailey filed a pro se appeal with this court, along with an in forma pauperis petition. This court granted Bailey in forma pauperis status, but Appellees filed a motion to revoke that status and dismiss the appeal. Initially, we will address Appellees motion. Appellees argue that this court should revoke Bailey s in forma pauperis status and dismiss the appeal because Bailey is an abusive litigator who currently has at least three strikes. We agree. Section 6602(f)(1) of the act known as the Prisoner Litigation Reform Act (PLRA), 42 Pa. C.S. §6602(f)(1), states that a court may dismiss prison conditions litigation where the prisoner previously has filed prison conditions litigation and three or more of the prior civil actions have been dismissed under section 6602(e)(2) of the PLRA, 42 Pa. C.S. §6602(e)(2).3 This court has referred to section 6602(f)(1) of the PLRA as the three strikes rule. See Brown v. James, 2 An inmate litigating a claim for retaliation against prison officials must show that: (1) the conduct that led to the alleged retaliation was constitutionally protected; (2) the inmate suffered some adverse action at the hands of the prison officials; and (3) there is a causal link between the exercise of his constitutional rights and the adverse action taken against him. Luckett v. Blaine, 850 A.2d 811 (Pa. Cmwlth. 2004). 3 However, a court may not dismiss a request for a preliminary injunction or temporary restraining order that makes a credible allegation that the prisoner is in imminent danger of serious bodily injury. Section 6602(f)(2) of the PLRA, 42 Pa. C.S. §6602(f)(2). 3 822 A.2d 128 (Pa. Cmwlth. 2003), appeal denied, 577 Pa. 736, 848 A.2d 930 (2004). Section 6602(e)(2) of the PLRA authorizes a court to dismiss prison conditions litigation, notwithstanding any filing fee that has been paid, if the court determines that the litigation is frivolous or malicious or fails to state a claim upon which relief may be granted, or that the defendant is entitled to assert a valid affirmative defense, which, if asserted, would preclude the relief. The phrase prison conditions litigation is defined as follows: 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 by a government party on the life of an individual confined in prison. The term includes an appeal. The term does not include criminal proceedings or habeas corpus proceedings challenging the fact or duration of confinement in prison. 42 Pa. C.S. §6601. In support of their motion, Appellees attached the following: (1) a prior memorandum opinion dismissing a complaint filed by Bailey that challenged prison administrative matters because the complaint was frivolous, failed to state a cause of action and raised issues that were outside the jurisdiction of the court;4 (2) a prior order dismissing as frivolous, for lack of jurisdiction, a petition for writ of 4 The case was captioned Bailey v. Blaine, (C.P. Pa., Allegheny Co., No. AR00-004527, filed November 1, 2000). 4 habeas corpus5 filed by Bailey that sought review of a hearing officer s decision in an inmate disciplinary matter;6 (3) a prior order dismissing, for failure to state a cause of action, a petition filed by Bailey that alleged retaliation and fabricated misconducts by prison employees;7 and (4) a prior order and opinion dismissing Bailey as party to a complaint that alleged retaliation and fabricated misconducts by prison employees.8 In the last case, the trial court concluded that Bailey is an abusive litigator based on the dismissal of at least seven of his prior actions.9 In response, Bailey argues that Appellees exhibits do not qualify as strikes against him because the cases proceeded further in litigation. (Bailey s response at 1.) To the extent Bailey means that he appealed the cases and they are still pending on appeal, we held in Brown that, to overcome a court s dismissal of an action based on the three strikes rule, the inmate has the burden of presenting 5 We note that the definition of prison conditions litigation excludes habeas corpus petitions challenging the fact or duration of confinement in prison. Although Bailey filed a habeas corpus petition, Bailey was not challenging the fact or duration of his confinement in prison. 6 The case was captioned Bailey v. Chesney, (C.P. Pa., Schuylkill Co., No. S-793-2001, filed July 3, 2001). 7 The case was captioned Bailey v. Chesney, (C.P. Pa., Schuylkill Co., No. S-1429-2001, filed June 28, 2002). 8 The case was captioned Combs v. Wakefield, (C.P. Pa., Huntingdon Co., No. 07-866, filed October 15, 2007). 9 In one of the seven prior actions, this court affirmed the trial court s dismissal of the action as frivolous. See Bailey v. Wakefield, 933 A.2d 1081 (Pa. Cmwlth. 2007). 5 evidence to establish that an alleged strike is still pending on appeal. Bailey s mere assertion that his cases proceeded further in litigation is not sufficient. Bailey also argues that dismissals based on jurisdiction do not count as strikes. 10 We disagree. In Hillanbrand v. Pennsylvania Board of Probation and Parole, 508 A.2d 375 (Pa. Cmwlth. 1986), this court dismissed an untimely appeal as frivolous because this court lacks jurisdiction over untimely appeals.11 Because section 6602(e)(2) of the PLRA does not limit the bases for determining whether litigation is frivolous and because litigation may be dismissed as frivolous for lack of jurisdiction, a dismissal based on jurisdiction counts as a strike under section 6602(f)(1) of the PLRA. Bailey offers no other objection to the attachments to Appellees motion. Accordingly, because those attachments establish that Bailey has filed at least three prior actions involving prison conditions that have been dismissed as frivolous or for failure to state a cause of action, we revoke Bailey s in forma pauperis status and dismiss his appeal. _____________________________ ROCHELLE S. FRIEDMAN, Judge 10 In support of this argument, Bailey cites Keener v. Pennsylvania Board of Probation and Parole, 128 F.3d 143 (3d Cir. 1997) (holding that lawsuits dismissed as frivolous prior to enactment of the federal PLRA count as strikes ). However, Keener does not even address whether dismissals based on jurisdiction count as strikes. 11 See also Commonwealth v. Nischan, 928 A.2d 349 (Pa. Super. 2007) (concluding that the appellant s claim that the trial court did not have jurisdiction is frivolous). 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Demetrius Bailey, Appellant v. Ann Miller, Lt. Baird, R. Reed, C. Mitchell : : : : : : : No. 1688 C.D. 2007 ORDER AND NOW, this 6th day of March, 2008, upon consideration of Appellees Motion to Revoke Appellant s IFP Pursuant to Pa. R.A.P. 123 (Motion), it is hereby ordered that the Motion is granted. The in forma pauperis status of Demetrius Bailey is revoked, and his appeal is dismissed. _____________________________ ROCHELLE S. FRIEDMAN, Judge
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