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HomeMy WebLinkAbout12-00870 !a 008q IN THE COURT OF COMMON PLEAS OF&V&A"0 COUNTY; PENNSYLVANIA a CIVIL ACTION -.LAW ?/ I of fis o4? a e S A y `1 e ?S e?? Lt) F fly) \)(Arlovs tcs p 0 _c? e- Plaintiff ) . ?(t C S fa ?o j y? bo f cbr« 'r` ''' VS NO. (D9 fCxl'zi f I "" ?a s L C-o- fie- , Defend a } ORDER l da f f ?? AND NOW, this o O 20 upon consideration .of the Petition Averring Inability to Pay Cast. of this Action an upon being satisfied of the truth of the averments of the Petition, it is hereby; ORDERED AND DECREED that _Wld .k,, the petitioneryis permitted to file and proceed with this action-without payment of filing fees or costs of service. (I:forms/ort Y Aia l Cd f! 7J I a J uage cl? C cz -n rrl CD _ ' z? a rn; rn 0 < .5 D C .t- n c"') M Z N '?--f < N ?H? ?° -rtiv N -L ? L7 T ?= _ c T J ? Q l2 _ g1 E__? . 4 ?, © rrl -? .. Ci. ti ? c rJ a? 64 ?,® ?>? (? vii ? ti?g ? v eOt -°` f`r f ?j Ott z) -LI 'cow Co- 0 sees ? , ?? 11? ? j -? `? ?- ?? c.o?y^f sc ICE va cte ?°"r? J"t J IN THE COURT OF COMMON PLEAS OFCvrW1rw0 COUNTY; PENNSYLVANIA CIVIL ACTION -.LAW S Plainfiff / ) . VS J Defend ) X31 CA Ci) -j- L `t } - ?JL?fi ova ORDER AND NOW, this % dad of 20 / a , upon consideration of the Petition Averring Inability to Pay Co U'of this Action and upon being satisfied of the truth of the averments of the Petition, it is hereby; , ORDERED AND DECREED that A14Aro le, z Zug , the petitioner is permitted to file and proceed with this action-without payment of filing fees or costs of service. Judge (I:forms/order) c lV = -<r ?s ® > C:).z x, C= s' f Supreme Cop CourtA 1--i Civll y (:\)YAQEAI & S E C T I Q N A S E C T I O N B f,Pennsylvania mmolPleas rer.-" e?et County For Prothonotary Use Only: Docket No: OWTeim loZ - 0087 The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Com encement of Action: Complaint lI Writ of Summons ® Petition ® Transfer from Another Jurisdiction 17 Declaration of Taking Lea WnY s amp,,, _ Lead Defendant's Name: Tl f`i? ®. • cxr Are money damage's requested? des No Dollar Amount Requested: ithin arbitration limits (check one) 17 outside arbitration limits 7s this a Uass Action Suit? Yes wo"No Is this an MDJApperil? ) Yes [J No Name of Plaintiff/A eHant's Attorney: Check here if you have no attorney (are a Self-Represented (Pro Sep Litigant) Nature of the Case: Place an"X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important, TrIntlenotional dnot incl,:de ,loss Tort) alicious Prosecution ® Motor Vehicle Nuisance CONTRACT (do not include Jud,; Hems) Buyer Plaintiff ® Debt Collection: Credit Card Debt Collection: Other CIVIL APPEALS Administrative Agencies Q Board of Assessment F1 Board of Elections [7 Dept. of Transportation Premises Liability ] Statutory Appeal: Other F] Product Liability (does not include tort) mass F7 Employment Dispute: ® Slander/Libel/ Delamation Other: Discrimination Employment Dispute: Other ] Zoning Board Othe r: ® Other: - MASS TORT Asbestos Tobacco Toxic Tort - DES Toxic Tort - Implant F1 Toxic Waste ® Other: REAL PROPERTY ®Ejectment ® Eminent Domain/Condemnation 0 Ground Rent MISCELLANEOUS 0 Common Law/Statutory Arbitration rf Declaratory Judgment ® Mandamus ute ® Landlord/Tenant Dis ® Non-Domestic Relations p e Foreclosure: Residential ® Mort a Restraining Order PROFESSIONAL LIABLITY ® Dental __R Legal edical g g F1 Mortgage Foreclosure: Commercial ® Partition ® Quiet Title F1 Other: Quo Warranto ® Replevin Other: Pf ssional: rOther Updated 11113011 Supreme Coin of,Pennsylvania Court of :CommoAleas County S E C T 1 I O N A For Prothonotary Use Only: Docket No: 101-00847 0i vit term The information collected on this form is used solely for court administration purposes. This form does not --niomant nr rwnlnra thv filin,7 and service O{Dleadings or other DaDers as required by low or rules of court. Corn encement of Action: Complaint ® Writ of Summons Transfer from Another Jurisdiction E3 Petition FJ Declaration of Taking Leap WnW,-f a??jlamn.A ,9 Lead Defendant's Name:: f i? r} A r,t1 Are money daznagt's requested? es No Dollar Amount Requested: MC-ithin arbitration limits (check one) []outside arbitration limits Is this a Class Action Suit? 0 Yes RWo { Is this an MDJAppeal? El Yes 0 No Name o;'Plaintiff/A eHant's Attorney: S-F_?i Chec1, here if you have no attorney (are a Self Represented [Pro Se[ Litigant) Nature of the Case: Place an"X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. S E C T T O N B TOR (do not include.Mrss To;-!} Intentional Malicious Prosecution ® Motor Vehicle E3 Nuisance E] Premises ! iability Product Liability (does not include mass tort) Slander/Libel/ Defamation Other: MASS TORT rl Asbestos F7 Tobacco F] Toxic Tort - DES F1 Toxic Tort - Implant Toxic Waste Other: PROFESSIONAL LIABLITY El Dental Legal /Medical ?' Otherr P}rQf ssional: CONTRACT (do not include Jud,; nerts) 17 Buyer Plaintiff Debt Collection: Credit Card Debt Collection: Other ® Employment Dispute: Discrimination Employment Dispute: Other Other: REAL PROPERTY ® Ejectment ® Eminent Domain/Condemnation 0 Ground Rent ® Landlord/Tenant Dispute ® Mortgage Foreclosure: Residential Mortgage Foreclosure: Commercial ® Partition ® Quiet Title ® Other: CINTIL APPEALS Administrative Agencies El Board of Assessment Board of Elections Dept. of Transportation F1 Statutory Appeal: Other El Zoning Board Other: MISCELLANEOUS 17 Common Law/Statutory Arbitration rl Declaratory Judgment ® Mandamus ® Non-Domestic Relations Restraining Order Quo Warranto ® Replevin ® Other: Updated 1/1!3011 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL DIVISION Alfonso Rizzuto, V. Sergeant Boor, Plaintiff Defendant No. 2012-87 Civil Term L'Z na ? 73 f*1 Ct7 Fri- r - r- ? > w C = O -n . -? MOTION TO REVOKE IFP AND DISMISS THE PETITION FOR REVIEW PURSUANT TO SECTION 6602(f) OF THE PRISON LITIGATION REFORM ACT NOW come the Defendant, by and through his attorney, Julie R. Tilghman, and move this Honorable Court as follows: 1. Petitioner is Alfonso Rizzuto (Inmate No. JF-8231), an inmate currently incarcerated at the State Correctional Institution at Smithfield ("SCI- Smithfield") 2. The Defendant is purportedly Sergeant Stephen Boor, a Corrections Officer serving the Pennsylvania Department of Corrections ("Department") at SCI-Camp Hill. 3. By Order dated January 17, 2012, the Honorable Judge Albert H. Masland granted Plaintiff the ability to proceed in forma pauperis ("IFP") 4. Plaintiff is barred from proceeding IFP in this action because he has accu nulated three strikes under Pennsylvania's Prison Litigation Reform Act ("PLRA")., 42 Pa. C.S. §§ 6601 et seq. 5. Section 6602(e) of the PLRA provides that: Notwithstanding any filing fee which has been paid, the court shall dismiss prison conditions litigation at any time, including prior to service on the defendant, if the court determines any of the following: (2) The 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. 6. "Prison conditions litigation" is defined as "[a] civil proceeding arising in whole or in part under Federal or State law with respect to the conditions of confinement or the effects of actions by a government parry on the life of an individual confined in prison." 42 Pa. C.S. § 6601. 7. The instant action is "prison conditions litigation" within the meaning of the PLRA. Petitioner is a prisoner and his allegations relate to the conditions of confinement and the alleged actions of prison personnel. 8. Section 6602(f) of the PLRA, entitled "Abusive litigation," permits a to dismiss prison conditions litigation "[i]f the prisoner has previously filed prison conditions litigation and: (1) three or more of these prior actions have been dismissed pursuant to subsection (e)(2) [of the PLRA]." 2 9. Petitioner has had at least three prison conditions actions dismissed as C.; l.V0 OUS: a. Rizzuto v. Pa. Dep't. of Corr., et al. (Commonwealth Court No. 636 M.D. 2010) (a true and correct copy of the Order dismissing Petitioner's petition for review is attached as Exhibit A). b. Rizzuto v. Pa. Dep't. of Corr., et al. (Commonwealth Court No. 704 M.D. 2010) (a true and correct copy of the Order dismissing Petitioner's petition for review is attached as Exhibit B). C. Rizzuto v. Pa. Dep't. of Corr., et al (Commonwealth Court No. 846 M.D. 2010) (a true and correct copy of the Order dismissing Petitioner's petition for review is attached as Exhibit Q. 10. Therefore, Petitioner is an abusive litigator within the meaning of the 11. Because Petitioner is an abusive litigator, he can only prevent the dismissal of his prison conditions litigation by making "a credible allegation" that he "is in imminent danger of serious bodily injury." 42 Pa. C.S. § 6602(f)(2). "[T]o be imminent, the danger must be, or must reasonably appear to be, .hi-.,,itenmg to occur immediately, near at hand, and impending." Brown v. Beard, A.3d (Pa. Cmwlth. Dkt. No. 173 C.D. 2010, filed December 15, 2010) (quoting Commonwealth v. Capitolo, 508 Pa. 372, 379; 498 A.2d 806, 809 (1985)). 3 12. Further, allegations of imminent danger are only able to avoid dismissal if they seek "preliminary injunctive relief or a temporary restraining order." Id.. 13. Plaintiff makes no allegations of imminent danger, and therefore this exception does not apply. W I-IEREFORE, the Respondents respectfully request that this Honorable Court grant this Motion to Revoke IFP and dismiss the Petition for Review. Respectfully submitted, Office of General Counsel y' J ie R. Ti ghman Assistant Counsel Office of General Counsel Attorney I.D. PA No. 208882 Pennsylvania Department of Corrections 1920 Technology Parkway Mechanicsburg, PA 17050 (717) 728-7758 jtilghman@pa.gov Dated: February 22, 2012 4 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alfonso Rizzuto, Petitioner No. 636 M.D. 2010 V. Commonwealth of Pennsylvania, Pa. DOC. Central Office, Department of Corrections Chief Hearing Examiner, Mr. Robert B. MacIntyre, . Respondents PER CURIAM O R D E R Now, January 11, 2011, upon consideration of respondents' preliminary objections and petitioner's response thereto, the objections are sustained, and the amended petition for review is dismissed. In his amended petition for review, petitioner essentially seeks judicial review of Misconduct No. B184679 issued on January 15, 2010 for petitioner's failure to obey orders on that date. Petitioner was sanctioned with 30 days of cell restriction and loss of privileges; he exhausted his administrative appeals. Petitioner avers that respondents- violated his procedural due process rights by failing to strictly adhere to DC-ADM 801. He seeks ''reversal" of the misconduct decision. Discipline by prison off=icials in response to prison misconduct falls within the expected parameters of the sentence imposed: EXHIBIT Conner, 515 U.S. 472 (1995). The Inability to call witnesses as well as any other procedural defect lacks legal significance in the absence of any protectable interest. Id. Corrections' policy DC-ADM 801 does not create any enforceable rights in any inmate. Luckett v. Blaine, 850 A.2d 811 (Pa. Cmwlth. 2004); Weaver v. Dept of Corr., 829 A.2d, 750 (Pa. Cmwlth. 2003). To the extent that petitioner avers that the misconduct was.issued by one or ,more correctional officers in retaliation for his filing grievances, he fails to state a claim against the named respondents. Certified from the Record JAN 12 2011 And Order Exit IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alfonso Rizzuto, Petitioner V. Commonwealth of Pennsylvania PA DOC Central Office Dept. of Corrections Director Bureau of Healthcare Services, Richard S. Ellers, Respondents : PER CURIAM ORDER No. 704 M.D. 2010 Now, January 20, 2011, upon' consideration of respondents' preliminary objections and petitioner's response thereto, the objections are sustained, and the Amended Petition for Review/Mandamus is dismissed. To state a claim for an Eighth Amendment violation in connection with denial of medical care, the inmate must establish that prison officials acted with deliberate indifference to serious medical needs resulting in unnecessary and wanton infliction of pain. Farmerv.'Brennan, 511 U.S. 825 (1994); Estelle v. Gamble, 429 U.S. 97 (1976). The deliberate indifference test affords considerable latitude to prison medical authorities in the diagnosis and treatment of inmates. Kretchmar v.. Dept of Corr., 831 A.2d 793 (Pa. Cmwith. _ 20031. Complaints about medical care that merely reflect a casagreament over the proper treatment of an inmate's medical condition do not rise to the level of a constitutional violation. Id. EXHIBIT -L- The amended petition's factual averments and exhibits fail to establish an Eight Amendment violation, and fail to establish that petitioner has a legal right to the relief he requests, i.e., the medical treatment of his choosing, a bottom bunk, permission to bring his medical records to his medical appointments, treatment without payment of a'fee, and a refund of medical co-payments deducted from his inmate account. Petitioner's exhibits reflect that he is receiving medical treatment and that respondents have not been unresponsive to his medical needs and concerns. Petitioner's factual averments do not establish that petitioner has a legal right to free medical treatment pursuant to DC-ADM 820. On the facts averred, petitioner fails to establish that his placement on grievance restriction has resulted in a denial of access to courts. Certified from the Record JAN 21 2011 And Order EA4 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alfonso Rizzuto, Petitioner V. Commonwealth of Pennsylvania P. A. DOC Central Office Dept of Corrections Acting Secretary Mrs. Shirley Moore Smeal, Respondent PER CURIAM O R D E R No. 846 M.D. 2010 Now, June 3, 2011, upon consideration of respondent's preliminary objections, the objections are sustained, and the petition for review is dismissed. At the time petitioner filed the present matter, he was housed at SCI-Fayette, and he has since been transferred to SCI-Pittsburgh. Petitioner essentially complains that he must complete certain prescriptive programs before he will be released on parole; his parole hearing is scheduled for June 2011. In connection with this claim petitioner seeks an order prohibiting false misconducts that might result in his removal from the programs and directing that his parole not be denied for non-completion of the programs, an order prohibiting retaliation for his fili-ng of grievances, and a transfer to SCI-Chester. Petitioner also complains about the conditions of his confinement at SCI-Fayette, including the habits of his cellmate, heat and EXHIBIT L dust, lack of hot water, insufficient library time, and the duration of showers. To the extent that petitioner attempts to incorporate claims raised in his initial petition for review, those claims are waived. See Vetenshtein v. City of Philadelphia, 755 A.2d 62 (Pa. Cmwlth 2000); Skelton v. Lower Merion TWp., 178 A. 387 (Pa. 1935) (amended petition virtually withdraws originally filed pleading). This Court has no original jurisdiction over an inmate petition for review after a grievance or misconduct procedure in a case not involving a constitutional right not limited by the Department of Corrections. Weaver v. Dep't of Corr., 829 A.2d 750 (Pa. Cmwlth. 2003). The decision as to what prison an inmate is housed in is within the discretion of corrections officials and generally does not implicate a liberty interest. Wilkinson v. Austin, 545 U.S. 209 (2005); Olim v. Wakinekona, 461 U.S. 238 (1983); Meachum v. Fano, 427 U.S. 215 (1976); Singleton v. Lavan, 834 A.2d 672 (Pa. Cmwlth. 2003). Petitioner's complaints related to prison conditions at SCI-Fayette fail to state an Eighth Amendment claim; moreover, petitioner is no longer incarcerated at SCI-Fayette. Discipline by prison officials in response to prison misconduct falls within the expected parameters of the sentence imposed. Sandin v. Conner, 515 U.S. 472 (1995). Internal prison operations are properly left to the legislative and executive branches; micromanagement of prisons by the courts is a squandering of judicial resources. Luckett v. Blaine, 850 A.2d 811 (Pa. Cmwlth. 2004); Bronson v. Cent. Office Review Comm., 721 A.2d 357 (Pa. 1998). RECEIVED Certified from the Record JUN 0 6 2011 And Order Exit office of Chief Counsel 1920 Technology Parkway IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL DIVISION Alfonso Rizzuto, Plaintiff V. No. 2012-87 Civil Term Sergeant 13oor, Defendant CERTIFICATE OF SERVICE I hereby certify that I am depositing in the U.S. mail a true and correct copy of the Motion to Revoke IFP and Dismiss the Petition for Review Pursuant to Section 660269 of the Prison Litigation Reform Act upon the person(s) in the in,mner indicated below: Service by first-class mail addressed as follows: Alfonso Rizzuto, JF-8231 SCI-Smithfield P. O. Box 999 Huntingdon, PA 16652 Deborah J. Brya ,Clerical Supervisor Office of Chief Counsel 1920 Technology Parkway Mechanicsburg, PA 17050 [fated: February 22, 2012 IN THE COURT OF COMMON PLEAS C, OF CUMBERLAND COUNTY -? `""-? CIVIL DIVISION =;a " cry P rv =:?:: Alfonso Rizzuto, Plaintiff No. 2012-87 Civil Term G ? V. ; Sergeant Boor, Defendant Motion to Revoke and Dismiss Filed on behalf of Defendant Counsel of Record: Julie R. Tilghman Assistant Counsel Office of General Counsel Attorney I.D. PA No. 208882 PA Department of Corrections 1920 Technology Parkway Mechanicsburg, PA 17050 (717) 728-7758 jilghman@pa.gov Time/Date Stamp IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL DIVISION r7, U,, r Alfonso Rizzuto , Plaintiff r.: No. 2012-87 Civil Term?? CD v. cn :Z) Sergeant Boor, Defendant PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance for Defendant in the above-captioned matter. B Respectfully Submitted, e R. Tilghman Assistant Counsel Office of General Counsel Attorney I.D. PA No. 208882 Pennsylvania Dept. of Corrections 1920 Technology Parkway Mechanicsburg, PA 17050 (717) 728-7758 itilghman(2pa.gov Dated: February 22, 2012 Office of General Counsel IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL DIVISION Alfonso Rizzuto, Plaintiff No. 2012-87 Civil Term V. Sergeant Boor, Defendant CERTIFICATE OF SERVICE I hereby certify that I am depositing in the U.S. mail a true and correct copy of the Praecipe for Entry of Appearance upon the person(s) in the manner indicated below: Service by first-class mail addressed as follows: Alfonso Rizzuto, JF-8231 SCI-Smithfield P. O. Box 999 Huntingdon, PA 16652 - ,tip---- Deborah J. Brya , Clerical upervisor Office of Chief Counsel 1920 Technology Parkway Mechanicsburg, PA 17050 Dated: February 22, 2012 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL DIVISION Alfonso Rizzuto, Plaintiff No. 2012-87 Civil Term V. Sergeant Boor, Defendant ORDER NOW, this day of? 2012, upon ?ja.•,X L4t w f? consideration of the Motion to Revoke IFP and Dismiss the 444itie.i rb- Revi@ Pursuant to Section 6602(f) of the Prison Litigation Reform Act, the motion is licrcby GRANTED. Plaintiff's in forma pauperis status is hereby REVOKED, and the P i' - is DISMISSED. By the Court: C-) ZC Z M Z M " Mr*t Mr-- 'Q cn r ?? ? t, Ica 77, 5c: r'3 f ? G?it.S NtG{ 44 y? °r c ?{ ?oj l ? arm d2 ?'' ?l r' +-13 ? w?U??1 ?e?T Coo' Y ?orj r?,v?K? .L lp?o -k r +i rs?r c u pu(. U+t vm ? ?,??- )-fro v? 2 z ?"? h? AJ. O('D tx, ('T3 (0 ?` o C, h,a C? ? s??, a re y" ALFONSO RIZZUTO, PLAINTIFF V. SERGEANT BOOR, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 12-0087 CIVIL TERM ORDER OF COURT AND NOW, this QOL day of May, 2012, upon review of Plaintiff's "Motion to Revoke Order/and Objections to Defendant's Motion to Revoke IFP/and Dismiss," a Rule is issued on the Defendant to show cause why the relief requested by Plaintiff should not be granted. This Rule is returnable thirty (30) days from the date of this order. Upon receipt of Defendant's response, the court will determine if a hearing/argument is necessary. By the Court, Alfonso Rizzuto, JF8231 f Albert H. Masland, J. SCI Laurel Highlands c Box 631 ? Somerset, PA 15501-0631 rn :Zrn s 3W rn -_. . v Julie R. Tilghman, Esquire Office of General Counsel 1920 Technology Parkway °? Mechanicsburg, PA 17050 v ^.? °r` :saa 6r,t'S ???? . ??C7 S?g?/ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL DIVISION Alfonso Rizzuto, Plaintiff V. Sergeant Boor, Defendant No. 2012-87 Civil Term ORDER CJ) _ '7D LD Y NOW, this day of 2012, upon consideration of Defendant's Response to Rule to Show Cause, Plaintiff's Motion to Revoke Order is DENIED. Plaintiff's in forma pauperis status remains REVOKED, and the Complaint is DISMISSED with prejudice. By the Court: V Al?nso Onk" 1 . p9jad ?01ie P,T186MM, ` iy/iZ JOZ6