A.D. Brown v. C. Blaine, Jr. ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alton D. Brown, :
:
Appellant :
:
v. : No. 1589 C.D. 2016
: Submitted: September 15, 2017
Conner Blaine Jr.; LT. R. Oddo, :
T.D. Jackson; Lt. McCombic; :
Charles Rossi; Sargeant Lipscomb; :
Officer Marshall; Officer Romano; :
Keri Cross; Frank J. Zaborowski; and :
B.E. Ansell :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: October 27, 2017
Alton D. Brown (Appellant or Brown) appeals pro se from the August
26, 2016 order of the Court of Common Pleas of Greene County (Trial Court)
dismissing his complaint with prejudice. (Certified Record (R.) Items No. 5 and 16,
Trial Court Order.) For the reasons set forth below, we vacate and remand to the
Trial Court, with instructions to provide Appellant thirty (30) days in which to pay
filing fees in the amount of $286.99 or have his complaint dismissed with prejudice.
Appellant is incarcerated in the Pennsylvania prison system, and in
2002, he filed an action against various guards, officers and employees (collectively,
Appellees or Defendants) of the Pennsylvania Department of Corrections (DOC). In
conjunction with his complaint, Brown filed a petition to proceed in forma pauperis
(IFP), which was granted on April 12, 2002. On September 20, 2011, Defendants
filed a Motion to Remove IFP and Dismiss the Case, and on November 3, 2011, the
Trial Court granted the motion, found Brown to be an abusive litigator,1 and
dismissed his case under Pennsylvania’s Prison Litigation Reform Act (PLRA), 42
Pa. C.S. §§ 6601-6608. Brown appealed to this Court, and in an unpublished
memorandum opinion, Brown v. Blaine, (Pa. Cmwlth., No. 863 C.D. 2012, filed
April 18, 2013), 2013 WL 3973380, we upheld the Trial Court’s determination to
revoke Brown’s IFP status, but vacated that portion of the Trial Court’s order that
dismissed Brown’s complaint and remanded, pursuant to Lopez v. Haywood, 41
A.3d 184, 188-89 (Pa. Cmwlth. 2012), for a determination of the amount of court
1
Section 6602(f) of the PLRA, 42 Pa. C.S. § 6602(f), commonly referred to as the “three strikes
rule,” allows the trial court to dismiss a prisoner’s in forma pauperis complaint where the prisoner
has a history of filing frivolous litigation. Jae v. Good, 946 A.2d 802, 807 (Pa. Cmwlth.), appeal
denied, 959 A.2d 930 (Pa. 2008). In Brown v. Pennsylvania Department of Corrections, 58 A.3d
118 (Pa. Cmwlth. 2012), this Court summarized Brown’s prolific history of filing frivolous and
abusive pro se lawsuits concerning the conditions of his confinement, quoting this Court’s decision
in Brown v. Pennsylvania Department of Corrections, (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.
58 A.3d at 121 (citations omitted).
2
fees Brown was required to pay in order to be able to proceed with the action. As
this Court determined in Lopez, 41 A.3d at 188-89, where a prisoner’s IFP status has
been revoked under Section 6602(f) of the PLRA, he or she must be provided the
opportunity to pay the required filing fees and litigation costs prior to the dismissal
of the complaint.
By its September 15, 2014 Order, the Trial Court noted that the fee
schedule provided by the Greene County Prothonotary had changed in the past year,
and found that under the current fee schedule, Brown was required to pay $96.00 for
a complaint, $83.50 for the Superior Court Fee, and $35.00 for the Lower Court
Appeal Fee, for a total of $214.50 in order to proceed with the remand of this case.
(R. Item 41.) Brown thereafter appealed the Trial Court’s September 15, 2014 Order
to this Court, and in an unpublished memorandum opinion, Brown v. Blaine, Jr.,
Oddo, Jackson, McCombic, Rossi, Lipscomb, Marshall, Romano, Cross,
Zaborowski and Ansell, (Pa. Cmwlth. No. 1752 C.D. 2014, filed November 17,
2015), 2015 WL 7356181, this Court held that appropriate filing fees and court costs
were those fees and costs in effect at the time the relevant complaint and subsequent
appeals were filed, and remanded to the Trial Court, with an instruction to issue a
new order reflecting its determination of the correct fees and costs. On March 3,
2016, the Trial Court issued an order determining that Appellant was required to pay
$613.00 in court fees and costs; Appellant filed a Motion for Reconsideration, and
on March 8, 2016, the Trial Court issued an Opinion and Order reaffirming its
determination.2 (R. Item 21.) On August 26, 2016, pursuant to its March 8, 2016
2
The certified record includes a handwritten listing of fees totaling $613.00. The handwritten list
is not specifically indexed in the Index of Documents, but rather is sandwiched between record
items 21 and 22. The Trial Court’s March 8, 2016 order does not refer to a handwritten list,
referencing only the total amount of court fees and costs due. The Trial Court’s 1925(a) opinion,
however, acknowledges the Court’s handwritten list of fees, stating:
3
order and a Motion for Entry of Final Order filed by Appellant, the Trial Court issued
the order before us, which dismissed the complaint with prejudice.3 (R. Item 16.)
Much of Appellant’s argument on appeal concerns matters previously
disposed of and therefore moot. Appellant first asserts that he is entitled to a
determination of whether he timely mailed his Concise Statement of Errors
Complained of on Appeal.4 However, on March 30, 2017, the Trial Court issued an
order finding, pursuant to the Prisoner Mailbox Rule,5 that Appellant’s concise
statement was timely filed. (R. Item 7.) Appellant further argues that he has been
denied an explanation as to how the Trial Court calculated his fees and costs. There
is no merit to this argument. In its opinion pursuant to Pa. R.A.P. 1925, the Trial
Court acknowledged that in its March 30, 2017 order, it erroneously listed “current
fees” and not the fee schedule for the appropriate year. (R. Item 6.) The Trial Court
stated:
By Court Order dated March 8, 2016, [the Trial Court] directed
[Appellant] to pay $613.00 to avoid dismissal and also provided the
fees associated with the above number and term, as provided by the
Prothonotary Office of Greene County – which was a handwritten
list of fees. The Court concedes that the list of fees were “current
fees” and not the fee schedule for the appropriate year…[The Trial
Court] was in error when it quoted filing fees as $613.00 and the
fees that would be needed to file are $286.99.
(Trial Court Opinion, R. Item 6.)
3
Our review of the trial court’s decision is limited to a determination of whether constitutional
rights were violated, or whether the trial court abused its discretion or committed an error of law.
Brown v. Beard, 11 A.3d 578, 580 n.5 (Pa. Cmwlth. 2010).
4
By order dated September 19, 2016, the Trial Court ordered that Appellant file a concise
statement of matters complained of on appeal within twenty-one days (R. Item 14).
5
Under the prisoner mailbox rule, a prisoner’s pro se filing is deemd to be filed at the time it is
given to prison officials or put in the prison mailbox. Kittrell v. Watson, 88 A.3d 1091, 1096-97
(Pa. Cmwlth. 2014).
4
After an extensive review of this file, [the Trial Court]
finds that the filing fees, as per the year of the filing of said
document(s) as provided by the Prothonotary Office of
Greene County to this Court are as follows:
Complaint, docketed 4/10/02…………… .$65.50
Sheriff Fees for Service of Complaint
docketed 04/16/02………….……………..$81.49
Appeal, docketed12/27/02…… …………..$35.00
Appeal, docketed 12/04/03………………..$35.00
Appeal, docketed 12/21/09………………..$35.00
Appeal, docketed 04/08/10………………..$35.00
TOTAL FEES: $286.99
(Id.) The Trial Court has therefore fully complied with this Court’s November 17,
2015 order, setting forth the appropriate court fees and costs that Appellant is
required to pay.
Appellant argues, finally, that the Trial Court’s behavior reflects a bias
and prejudice against him, and that it should therefore have recused itself from this
matter. We reject this argument. In denying Appellant’s request for his recusal,
Judge Dayich opined that “this Court’s actions are not intentional and not done to
prevent and/or delay the trial and not designed to cause the Plaintiff an unnecessary
appeal and related fees and costs.” (Id.) Our Supreme Court has established that
unfavorable rulings do not form the basis for a claim of bias and prejudice.
Commonwealth v. Abu-Jamal, 720 A.2d 79, 90 (Pa. 1998); see also Commonwealth
v. Boyle, 447 A.2d 250, 252 (Pa. 1982) (a recusal is required only where the party
requesting recusal establishes that there is a substantial doubt as to the jurist’s ability
to preside impartially). The record here reflects that the Trial Court has corrected
its error in calculating the fees owed.
5
However, the Trial Court has admitted that the order of March 3, 2016
required Appellant to pay an incorrect amount of fees and costs. Accordingly, the
order of August 26, 2016 dismissing the complaint for failure to pay that amount
cannot stand. We therefore vacate the order of the Trial Court, and remand this
matter to the Trial Court, for the purpose of providing Appellant thirty (30) days in
which to pay filing fees in the amount of $286.99 or have his complaint dismissed
with prejudice.
____________________________________
JAMES GARDNER COLINS, Senior Judge
Judge Cosgrove did not participate in the decision of this case.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alton D. Brown, :
:
Appellant :
:
v. : No. 1589 C.D. 2016
:
Conner Blaine Jr.; LT. R. Oddo, :
T.D. Jackson; Lt. McCombic; :
Charles Rossi; Sargeant Lipscomb; :
Officer Marshall; Officer Romano; :
Keri Cross; Frank J. Zaborowski; and :
B.E. Ansell :
ORDER
AND NOW, this 27th day of October, 2017, the August 26, 2016 order
of the Court of Common Pleas of Greene County (Trial Court) dismissing Appellant
Alton D. Brown’s complaint with prejudice is vacated. We remand this matter to
the Trial Court, with instructions to provide Brown with thirty (30) days within
which to pay filing fees in the amount of $286.99 or have his complaint dismissed
with prejudice.
Jurisdiction relinquished.
____________________________________
JAMES GARDNER COLINS, Senior Judge