IN THE COMMONWEALTH COURT OF PENNSYLVANIA - PDF document

1 IN THE COMMONWEALTH COURT OF PENNSYLVANI
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Sehu Kessa Saa Tabansi a/k/a : Alfonso Percy Pew, : Appellant : : No. 431 C.D. 2013 v. : : Submitted: September 20, 2013 Pennsylvania Department of : Corrections, John E. Wetzel, Secretary : of Corrections, Shirley Moore Smeal, : Executive Deputy Corrections, : Regional Deputy Secretary John/Jane : Doe, John Doe, Jane Doe, State : Correctional Institution Rockview, : Super intendent John/Jane Doe, : Deputy Superintendent Facility : Management John/Jane Doe, Deputy : Superintendent Centralized Services : John/Jane Doe, Major of Guards John : Doe, Major of Unit Managers John : Doe, G. Black, Unit Manager, All : Cell Extraction Team Members : John/Jane Doe, All Medical Extraction : Team Members John/Jane Doe, Bureau : of Security John/Jane Doe : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: November 19, 2013 Sehu Kessa Saa Tabansi, also known as Alfonso Percy Pew (Pew ) , appeals pro se from the February 27, 2013 order of the Centre County Court of 2 Common Pleas (trial court), w hich dismissed Pew’s complaint pursuant to the “three strikes” provision of section 6602(f) of the statute commonly known as the Prison Litigation Reform Act ( PLRA), 42 Pa.C.S. § 6602(f). We affirm in part and vacate and remand in part . Facts and Procedural

2 History On February 13, 2013, Pew f
History On February 13, 2013, Pew filed a n application to proceed in forma pauperis (IFP). On that same date, Pew also filed a complaint against named and unnamed officers and/or employees of the Department of Corrections (DOC Defend ants ), asserting multiple civil rights violations and claims under the Pennsylvania Constitution and statutes. In this complaint, Pew alleged that he is an inmate at the S tate Correctional Institution at Rockview (SCI - Rockview) and is in “imminent danger of death” because the DOC Defendants have been using the chemical agent, Oleoresin Capsicum (pepper spray), to subdue inmates. (Complaint, p. 2.) Specifically, Pew averred that he “was subjected to its exposure on two separate occasions” and that he was “injured twice.” Id. Pew alleged that he is “a mental health inmate and a grievance filer” and has been subjected to a dangerous environment in th e cell - block, with the inmates causing “repeated fires” and “constant assaults by feces and urine and saliva and other bodily fluids.” Id. According to Pew’s complaint, the DOC Defendants continue to use pepper spray at SCI - Rockview , and their alleged use of it resulted in the death of a fellow inmate, John Carter (Carter) . In the complaint’s request for relief, Pew sought monetary damages and an injunctio n prohibiting the use of pepper spray for extracting inmates from their cell s . Id. at 5. 3 By opinion and order docketed February 27, 2013 , the trial court dismissed Pew’s complaint, sua sponte , 1 concluding tha

3 t Pew has three or more “strikes” a
t Pew has three or more “strikes” and that he failed to provide a credible allegation that he is in imminent danger of serious bodily injury. On March 1, 2013, the trial court entered an order revoking Pew’s IFP stat us. Discussion On appeal, Pew contends that the trial court abused its discretion in dismissing his complaint because pepper spray allegedly caused him injuries in the past and allegedly resulted in the death of Carter . Pew contends that these allega tions establish that he is in imminent danger of serious bodily injury . Pursuant to section 6602(f) of the PLRA, a trial court can revoke a prisoner’s IFP status if the prisoner , among other things, filed three or more civil actions involving prison conditions and these civil actions were dismissed as frivolous, malicious, or for failure to state a claim. In pertinent part, section 6602(f) provides as follows: (f) Abusive litigation. — If the pris oner has previously filed prison conditions litigation and: three or more of these prior civil actions have been dismissed pursuant to subsection (e)(2) ... * * * the court may dismiss the action. The court shall not, however, dismiss a request for p reliminary injunctive relief 1 Pew does not challenge the trial court’s authority to determine on its own prerogative whether a complaint credibly alleges imminent danger of serious bodily injury. 4 or a temporary restraining order which makes a credible allegation that the prisoner is in imminent danger of serious bodily inju

4 ry . 42 Pa.C.S. §6602(f) (emphasis
ry . 42 Pa.C.S. §6602(f) (emphasis added). Under section 6602(e)(2) of the PLRA, a court can dismiss prison conditions litigation when “[t]he prison conditions litigation is frivolous or malicious or fails to state a claim upon which relief may be granted or the defendant is entitled to assert a valid affirmative defense, including immunity, which , if asserted, would preclude the relief.” 42 Pa.C.S. §6602(e)(2). In 2007, this Court confirmed that Pew is an abusive litigator, who by that time had already accumulated “seven strikes” for filing frivolous lawsuits in the justice system. Pew v. Mech ling , 929 A.2d 1214, 121 7 - 18 & n.6 (Pa. Cmwlth. 2007). Because Pew has more than “three strikes” for purposes of the PLRA, the only way he can avoid revocation of his IFP status is if his complaint sets forth “ a credible allegation that [he] is in imminen t d anger of serious bodily injury.” 42 Pa.C.S. § 6602(f); Jae v. Good , 946 A.2d 802, 807 & 809 (Pa. Cmwlth. 2008). In defi ning the term “imminent danger,” this Court has stated , “ [t]o be imminent, the danger must be, or must reasonably appear to be, threatening to occur immediatel y, near at hand, and impending.” Lopez v. Haywood , 41 A.3d 184, 188 - 89 (Pa. Cmwlth. 2012) (quoting Commonwealth v. Capitolo , 508 Pa. 372, 379, 498 A.2d 806, 809 (1985) ) . Consistent with this definition, in order for a priso ner to make a valid allegation of imminent danger of serious bodily injury, the prisoner must be faced with a harm that is likely to occur , not one whi ch is speculative in natur

5 e . Lopez , 41 A.3d at 189 (rejectin
e . Lopez , 41 A.3d at 189 (rejecting allegations of imminent harm that are “spe culative in nature”). Pursuant to the regulation at 37 Pa. Code §91.6 (a) , “[f]orce and restraints will be used by corrections personnel only to accomplish legitimate penological and 5 law enforcement objectives.” 37 Pa. Code §91.6(a) (1) states that “[a] staff member may not use any greater force against an inmate than is necessary to protect the staff member or others from bodily harm or to protect property from damage or destruction or to prevent a criminal act or to effect compliance with rules when oth er methods of control are ineffective.” Under 37 Pa. Code §91.6( b), the use of force cannot be used “ for punishment or revenge.” The DOC’s policy statement at DC - ADM 201, entitled “Use of Force,” provides that the “use of force” consists, among other thi ngs, of “the physical contact with an offender in a confrontational situation to control behavior and enforce order,” and includes within the definition of “force” the use of “oleoresin capsicum” – pepper spray. Id. at Glossary of Terms. 2 Here, Pew asse rts in his complaint that he was pepper - sprayed and exposed to Oleoresin Capsicum twice at some unknown time in the past , sustaining two unspecified “ injuries, ” and that another inmate, Carter , allegedly died from exposure to pepper spray. T hese averments , alone, are markedly insufficient to demonstrate that Pew is in imminent danger of serious bodily injury. Initially, the averments concerning the DOC

6 Defendants’ alleged usage of pepper
Defendants’ alleged usage of pepper spray and Carter’s death exist in a vacuum , and the complaint is devoid of any facts explaining when, how , or under what circumstances the se alleged instances 2 DC - ADM 201 also states , in pertinent part, that the “[u]se of force shall be applied i n accordance with the force continuum … unless the acting staff member reasonably believes the situation requires immediate escalation to a greater degree of force….” Id. at II I(C). The Glossary Section sets forth a “force continuum” that details “[a] se quential order of force beginning with the least amount of force and progressing through the degrees of non - deadly and deadly force.” Id. The sequence is as follows: (1) show of force (the assembly of staff and equipment for a planned use of force); (2) control techniques, Oleoresin C apsicum, Electric Body Immobilizing Device (EBID) and/or Pepperball System; (3) chemical munitions other than oleoresin capsicum; (4) active counter measures (strikes against the inmate) and/or Specialty Impact Munitions (SIM ); and (5) firearms. Id. 6 occurred. 3 Further , in terms of the DOC Defendant’s alleged usage of pepper spray, Pew does not aver that the DOC Defendants employed excessive and/or unjustifi ed force in violation of 37 Pa. Code §91.6(a)(1) or (b) , or that the use of pepper spray had the effect of inflicting “serious bodily injury” on Pew. See McCormick v. City of Fort Lauderdale , 333 F.3d 1234, 1245 (11th Cir. 2003) (describing pepper spray a

7 s “a n especially noninvasive weapon
s “a n especially noninvasive weapon ” - one that “may be very safe … [g]iven that [it] ordinarily causes only temporary discomfort”). This is not to say that the excessive use of pepper spray is incapable of causing harm when administered in large quantities or in a manner not recommended by the manufacturer , but Pew does not make these contentions in his complaint, and there are no averments connecting the circumstances of Carter’s alleged death with Pew ’s particular situatio n . Finally , not only does Pew fail to demonstrate when or how he was exposed to pepper spray or the circumstances surrounding same ( e.g. , cell extraction) , Pew also did not aver how it is more likely than not that he will be exposed to pepper spray in the immediate future ; consequently, he failed to establish that he faces a danger that is imminent . B ased upon the facts as stated in the complaint , we conclude that Pew’s claims are wholly specul ative and that he failed to suf ficiently allege that he is in imminent danger of serious bodily injury. Having determined that Pew has failed to set forth a credible allegation that he is in imminent danger of serious bodily injury , we conclude that the trial court did not err in revoking Pew’s IFP status. Howeve r, where the prisoner’ s IFP status 3 In his appellate brief, Pew attaches as exhibits articles and/or newsletters regarding the death of Carter and the risks of excessive exposure to pepper spray. However, this Court may not conside

8 r these documents becau se they were not
r these documents becau se they were not attached to the complaint or otherwise made part of the certified record. See Brandon v. Ryder Truck Rental, Inc. , 34 A.3d 104, 106 n.1 (Pa. Super. 2011); Miller v. Department of Public Welfare , 513 A.2d 569, 570 n.5 (Pa. Cmwlth. 1986). 7 has been revoked under s ection 6602(f), the proper procedure is to provide the prisoner with the oppor tunity to pay the required fees : if t he prisoner is able to pay the fees , the case may proceed ; if he is not, the case may be dismissed. Lopez , 41 A.3d at 188 - 89 (holding that an abusive litigant who loses IFP status may proceed by paying costs). Therefore, we vacate the trial court’ s order insofar as it dismissed Pew’s complaint under section 6 602(f ) and remand in order for the tria l court to afford Pew the opportunity to pay his filing fees and litigation costs. On remand, the trial court shall ma ke arrangements to provide Pew with a list of costs and fees incurred in connection with this litigatio n, and may dismiss the case i f Pew thereafter fails to pay these expenses. Accordingly, we affirm in part and vacate and remand in part. ________________________________ PATRICIA A. McCULLOUGH, Judge IN THE COMMONWEALTH COURT OF PENNSYLVANIA Sehu Kessa Saa Tabansi a/k/a : Alfonso Percy Pew, : Appellant : : No. 431 C.D. 2013 v. : : Pennsylvania Department of : Corrections, John E. Wetzel, Secretary : of Corrections, Shirley Moore Smeal, : Executive Deputy Corrections,

9 : Regional Deputy Secretary John/Jane
: Regional Deputy Secretary John/Jane : Doe, John Doe, Jane Doe, State : Correctional Institution Rockview, : Superintendent John/Jane Doe, : Deputy Superintendent Facility : Management John/Jane Doe, Deputy : Superintenden t Centralized Services : John/Jane Doe, Major of Guards John : Doe, Major of Unit Managers John : Doe, G. Black, Unit Manager, All : Cell Extraction Team Members : John/Jane Doe, All Medical Extraction : Team Members John/Jane Doe, Bureau : of Security John/Jane Doe : ORDER AND NOW, this 19 th day of November , 201 3 , the February 27, 2013 order of the Centre County Cour t of Common Pleas is affirmed in part, vacated to t he extent that it dismissed Pew’ s complaint, and this matter is remanded for further proceedings. On remand, the trial court shall order the Prothonotary of Centre County to compile a list of the filing fees and costs associated with this matter that Pew would have had to pay had he not been granted in forma pauperis status and to provide that information to P ew within 30 days of this Court’ s Order. The trial court shall direct Pew to pay those fees and costs within 30 days of receiving the information from the Prothonotary. If Pew fails to pay the fees and costs, th e trial court may enter an order dismissing his complaint with prejudice. The Chief Clerk’s office is directed to mail a copy of this opinion an d order to Debra C. Immel , the Prothonotary of Centre County. Jurisdiction relinquished. ______________ __________________ PATRICIA A. McCULLOUGH, J