G. Thomas v. J. Wetzel, PA DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gregory Thomas, :
Appellant :
:
v. :
: No. 626 C.D. 2019
John Wetzel, Penna. DOC : Submitted: September 20, 2019
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: November 20, 2019
Gregory Thomas (Thomas) appeals from the Erie County Common Pleas
Court’s (trial court) November 9, 2018 order dismissing his pro se complaint against
Pennsylvania Department of Corrections’ (DOC) Secretary John Wetzel (Wetzel) in
his official and individual capacity (Complaint), pursuant to Pennsylvania Rule of
Civil Procedure (Rule) No. 240(j)(1). Essentially, the issue before this Court is
whether Thomas’ Complaint is wholly frivolous and fails to state a claim upon which
relief can be granted. After review, we affirm.
Thomas is currently incarcerated at the State Correctional Institution
(SCI) at Albion. On November 1, 2018, Thomas filed the Complaint in the trial court
seeking: (1) declaratory relief that DOC’s policy and contract prohibiting internet
access on Global Tel-Link Corporation (GTL) tablets “violates the First, the
[F]ourteenth and the [Eighth] Amendments [to] the [Pennsylvania] and [United States
(U.S.)] Constitution[s]” as well as his due process and equal protection rights,
Complaint at 8 (ad damnum clause); (2) injunctive relief enjoining Wetzel “from not
providing adequate polic[ies] that comport with prisoners[’] [c]onstitutional rights[,]”
Complaint at 9 (ad damnum clause); and (3) compensatory and punitive damages.1
See Complaint at 10-11. In addition, Thomas filed with the trial court a Petition for
Leave to Proceed In Forma Pauperis (IFP Petition) in conjunction with his
Complaint. On November 9, 2018, the trial court denied the IFP Petition and
dismissed the Complaint with prejudice pursuant to Rule 240(j)(1). On November
21, 2018, Thomas appealed to the Pennsylvania Superior Court (Superior Court).
On November 28, 2018, the trial court ordered Thomas to file a Concise
Statement of Errors Complained of on Appeal pursuant to Pennsylvania Rule of
Appellate Procedure (Appellate Rule) 1925(b) (Appellate Rule 1925(b) Statement).
On December 14, 2018, Thomas filed his Appellate Rule 1925(b) Statement. On
January 18, 2019, the trial court filed its opinion in accordance with Appellate Rule
1925(a). By March 27, 2019 order, the Superior Court transferred the appeal to this
Court.2
Initially, Rule 240(j)(1) provides, in relevant part:
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,
[326] . . . (1989).
Pa.R.C.P. No. 240(j)(1).
1
Thomas did not name DOC as a party in the Complaint.
2
“Our scope of review is limited to determining whether constitutional rights have been
violated, whether the trial court abused its discretion, or whether the trial court committed an error
of law.” Lichtman v. Glazer, 111 A.3d 1225, 1227 n.4 (Pa. Cmwlth. 2015).
2
In the Complaint, Thomas alleges, inter alia, violations of the
Pennsylvania and U.S. Constitutions, the Americans with Disabilities Act of 1990
(ADA),3 and the Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA).4 See Complaint ¶ 1. Thomas avers that his claims are authorized by
Section 1983 of the Civil Rights Act, 42 U.S.C. § 1983 (Section 1983). See
Complaint ¶ 4. Specifically, Thomas asserts that DOC’s prohibition of internet
access on his tablet violates his first amendment right to freedom of speech, his
religious freedoms and bars his ADA recovery assistance. Thomas further claims
that DOC refuses to provide winter clothing and sport safety equipment, which also
violates his rights.
In his Appellate Rule 1925(b) Statement, Thomas includes 8 paragraphs,
each essentially containing random statements of law unrelated to the trial court’s
order. See Appellate Rule 1925(b) Statement at 1-2. In his brief, Thomas identifies
12 issues in his Statement of the Questions Involved (Questions Statement) relating to
the allegations in the Complaint. See Thomas Br. at 3-4. Notably, neither Thomas’
Appellate Rule 1925(b) Statement, nor his Questions Statement mention Rule
240(j)(1), the trial court’s order or the trial court’s reasons for dismissing the
Complaint.
The law is well established that “[a] party’s failure to include an issue in
its [Appellate] Rule 1925(b) [S]tatement waives that issue on appeal.[5] Pa.R.A.P.
1925(b)(4)(vii).” Dresher v. Se. Pa. Transp. Auth., 212 A.3d 1179, 1185 (Pa.
Cmwlth. 2019). Further, “‘[e]ach error identified in the [Appellate Rule 1925(b)
S]tatement will be deemed to include every subsidiary issue which was raised in the
trial court.’ Pa.R.A.P. 1925(b)(4)(v).” Dresher, 212 A.3d at 1185. Here, the issues
3
42 U.S.C. §§ 12131-12165.
4
42 U.S.C. § 2000cc-1.
5
“[Appellate] Rule 1925 violations may be raised by the appellate court sua sponte[.]”
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).
3
Thomas raised in his Questions Statement are not included in his Appellate Rule
1925(b) Statement. Further, the issues Thomas raised in his Questions Statement
pertaining to whether prohibiting internet access, winter clothing and sports safety
equipment is a violation of Thomas’ constitutional rights, are not subsidiary to the
issues of public agency liability which Thomas raised in his Appellate Rule 1925(b)
Statement. Accordingly, Thomas has waived all of the issues presented to this Court
on appeal.6
For the above reasons, the trial court’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
6
Because Thomas’ issues are waived, there is nothing for this Court to address.
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gregory Thomas, :
Appellant :
:
v. :
: No. 626 C.D. 2019
John Wetzel, Penna. DOC :
ORDER
AND NOW, this 20th day of November, 2019, the Erie County Common
Pleas Court’s November 9, 2018 order is affirmed.
___________________________
ANNE E. COVEY, Judge