Credico, J. v. Officer Romero ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-S59001-17
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.
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1 The Appellees have not filed a brief with this Court.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2017
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Circulated 10/06/2017 01:41 PM