A. Brown v. Dept. of Corrections ( 2017 )


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  •          IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Alton D. Brown,                      :
    Petitioner         :
    :
    v.                       : No. 1155 C.D. 2016
    : SUBMITTED: April 7, 2017
    Department of Corrections,           :
    Respondent          :
    BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
    HONORABLE JULIA K. HEARTHWAY, Judge
    HONORABLE DAN PELLEGRINI, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE HEARTHWAY                         FILED: August 8, 2017
    Petitioner Alton Brown (Petitioner) petitions for review, pro se, from
    the final determination of the Commonwealth of Pennsylvania Board of Claims
    (Board). The Board denied Petitioner’s application for leave to proceed in forma
    pauperis under Rule 240(j)(1) of the Pennsylvania Rules of Civil Procedure,
    Pa.R.C.P. No. 240(j)(1), and dismissed his complaint against the Respondent,
    Pennsylvania Department of Corrections (Department). We affirm.
    Petitioner is currently incarcerated as an inmate at the State
    Correctional Institution at Greene (SCI-Greene). On May 18, 2016, Petitioner
    filed a petition to proceed in forma pauperis and a complaint with the Board,
    alleging that the Department had breached a series of oral contracts and seeking
    damages in the amount of $28,390,000. (C.R. at Item No. 2.)                           Specifically,
    Petitioner alleges that: (1) the Department violated its rules and regulations
    governing the personal property of inmates; (2) the Department breached an
    agreement to secure his personal property when he was transferred to SCI-Greene;
    (3) the Department breached an agreement to permit Petitioner to keep personal
    property in his cell; (4) the Department breached an agreement to return his
    personal property in exchange for Petitioner’s assurance that he would cease filing
    further grievances or appeals; (5) the Department breached an agreement to follow
    its regulations and procedures in exchange for Petitioner’s participation in prison
    misconduct hearings; and (6) the Department breached its agreement to provide
    him with a high-calorie, high-protein diet in exchange for his agreement to visit a
    local hospital for treatment. (Id.) On June 3, 2016, the Board issued its opinion
    and order dismissing Petitioner’s complaint as frivolous and denying his
    application for in forma pauperis status under Pa.R.C.P. No. 240(j)(1).1 (Id.) This
    petition for review followed.2
    Petitioner argues that the Board erred in its determination that his
    appeal was frivolous because he presented valid claims that the Department
    breached a series of oral contracts with him.                   The Department argues that
    1
    Under Rule 240(j)(1), a court may dismiss an application to proceed in forma pauperis
    “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). See also Neitzke v. Williams, 
    490 U.S. 319
    , 325 (1989)
    (defining a frivolous action as one that “lacks an arguable basis either in law or in fact”). An
    action must be reviewed to determine frivolity before addressing the merits of the claim. 
    Id.
    2
    We review Board of Claims’ decisions to determine whether constitutional rights were
    violated, whether errors of law were committed, and whether the Board’s findings are supported
    by substantial evidence. Department of Health v. Data-Quest, Inc., 
    972 A.2d 74
     (Pa. Cmwlth.
    2009).
    2
    Petitioner’s appeal is frivolous because there is no basis in law or fact for his
    claims. The Department also contends that Petitioner’s appeal should be dismissed
    under Section 6602(f) of the Prison Litigation Reform Act, 42 Pa.C.S. § 6602(f),
    because Petitioner is an abusive litigator and there is no indication that he is in
    imminent danger.
    The Board determined that Petitioner’s claims were frivolous for two
    reasons: (1) Petitioner failed to allege facts that would establish the existence of
    any valid contract with the Department; and (2) even if Petitioner’s allegations
    were sufficient to give rise to contract claims, he failed to allege a contract over
    which the Board would have jurisdiction under the Commonwealth Procurement
    Code (Code), 62 Pa.C.S. §§ 101-2311. (C.R. at Item No. 2.)
    We agree with the Board’s determination that Petitioner’s claims are
    frivolous. The subject matter for each of Petitioner’s claims--storage of personal
    property, prison grievance proceedings, prison misconduct hearings, and food
    service--is controlled by Department policies and procedures.3 Such policies and
    procedures do not create a contractual relationship between the Department and an
    inmate. Oatess v. Beard, 
    576 A.2d 398
    , 400 (Pa. Super. 1990). Additionally,
    because all of Petitioner’s claims are based on his “agreement” to act as he is
    legally obligated to act under the terms of his incarceration, all of his purported
    contracts lack consideration. See Cohen v. Sabin, 
    307 A.2d 845
    , 849 (Pa. 1973)
    3
    See       Pennsylvania   Department      of    Corrections,   Policies,
    http://www.cor.pa.gov/About%20Us/Pages/DOC-Policies.aspx#.WU1bibHD9aQ (last accessed
    on June 23, 2017, 3:10 PM).
    3
    (holding that performance of that which one is already obligated to do is not
    consideration sufficient to support a valid agreement).
    The Board is an independent administrative board governed by the
    provisions of the Code. 62 Pa.C.S. § 1721. It has exclusive jurisdiction, in part,
    over claims arising from certain contracts with Commonwealth agencies.                        62
    Pa.C.S. § 1724. A “contract” under the Code is defined as “[a] type of written
    agreement, regardless of what it may be called, for the procurement or disposal of
    supplies, services or construction. . .” and properly executed by the parties. 62
    Pa.C.S. § 103 (emphasis added). Here, none of the contracts alleged by Petitioner
    could be reasonably interpreted to involve the procurement or disposal of supplies,
    services, or construction. As a result, the Board properly determined that none of
    the contracts alleged by Petitioner fell within its statutory jurisdiction.
    The Department also argues that Petitioner’s complaint should be
    dismissed because we have previously determined that Petitioner is an abusive
    litigator under Section 6602(f) of the Prison Litigation Reform Act, 42 Pa.C.S. §
    6602(f). While we recognize Petitioner’s lengthy history of prison conditions
    litigation and his status as an abusive litigator,4 the Board did not address this
    issue, and it is unnecessary for this Court to consider this question in light of our
    disposition in this case.
    4
    See Brown v. Beard, 
    11 A.3d 578
     (Pa. Cmwlth. 2010); Brown v. Levy, 
    993 A.2d 364
    (Pa. Cmwlth. 2010); Brown v. Pa. Dept. of Corrections, 
    913 A.2d 301
     (Pa. Cmwlth. 2006);
    Brown v. James, 
    822 A.2d 128
     (Pa. Cmwlth. 2003) (referencing several additional dismissed
    cases in various Pennsylvania and federal courts filed by Petitioner); Brown v. Blaine, Slip. Op.,
    Pa. Cmwlth., No. 832 C.D. 2012 (April 18, 2013).
    4
    For the above-stated reasons, we affirm the Board’s dismissal of
    Petitioner’s complaint and denial of his application for in forma pauperis status.
    __________________________________
    JULIA K. HEARTHWAY, Judge
    5
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Alton D. Brown,                      :
    Petitioner         :
    :
    v.                       : No. 1155 C.D. 2016
    :
    Department of Corrections,           :
    Respondent          :
    ORDER
    AND NOW, this 8th day of August, 2017, the order of the
    Pennsylvania Board of Claims in the above-captioned matter is affirmed.
    __________________________________
    JULIA K. HEARTHWAY, Judge