HomeMy WebLinkAbout2009-7651
JOHN RICHARD JAE : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.:
:
DR. JEFFREY A. BEARD, : NO. 2009 – 7651 CIVIL TERM
Ph.D., et al :
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., July , 2010
The plaintiff has filed this timely appeal from our order of February 25, 2010,
which dismissed his suit against Secretary of Corrections Jeffrey Beard and others. He
has raised eleven allegations of error. The last allegation of error contends that we
abused our discretion in dismissing the action on jurisdictional grounds. The first seven
involve our alleged error in dismissing the action under Section 6602 (f) of the Prison
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Litigation Reform Act. We will address these allegations of error in the opinion that
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follows.
Dismissal of Complaint on Venue and Jurisdictional Grounds
Plaintiff is an inmate housed at S.C.I. Cresson in Cambria County. On November
5, 2009, we granted his request to proceed in forma pauperis. With the filing fees
waived, Plaintiff filed a civil rights action under 42 U.S.C. § 1983. The twenty six page
complaint contained twelve counts. The first ten counts involve allegations against
prison employees at Cresson for things like failing to advise him of all the side effects of
the drugs he is taking such as aspirin and acetaminophen (count 2); failing to timely
apply salt to icy sidewalks (count 4); failing to keep their promise to fix potholes in the
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42 Pa. C.S.A. § 6602 (f).
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The remaining allegations of error involve our failure to grant various motions filed by the plaintiff.
However our dismissal of the complaint rendered those motions moot.
NO. 2009 – 7651 CIVIL TERM
roads and cracks in the sidewalks (count nine); and failing to place rubber mats on the
dining hall floors when it is raining outside (count 10). The remaining counts allege
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causes of action against the Secretary of Corrections for his official actions and policies.
Plaintiff conceded that the allegations in counts two through ten are identical to
those in a complaint that previously had been dismissed by the Court of Common Pleas
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of Cambria County. He added additional counts against Dr. Beard in order to obtain
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venue in this county. However, the claims against Secretary Beard must be brought in
the Commonwealth Court. See 42 Pa.C.S.A. § 761. Since we did not have jurisdiction of
the claim against Secretary Beard, we dismissed the complaint as to him. Without
Secretary Beard as a defendant, proper venue was in Cambria County. Therefore, we
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dismissed the remainder of the complaint.
Dismissal under the Prison Litigation Reform Act
On December 10, 2009 the defendants filed a motion to revoke plaintiffs in forma
pauperis status. The defendant has had at least 15 prior actions dismissed pursuant to
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Section 6602 (e) of the Prison Litigation Reform Act. Section 6602 (f) of the Act
provides in relevant part as follows:
(f) Abusive litigation.-If the prisoner has previously filed prison conditions
litigation and
(1)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 preliminary injunctive relief
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Transcript of Proceedings, February 25, 2010, p. 18.
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Transcript of Proceedings, February 25, 2010, p. 6.
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Transcript of Proceedings, February 25, 2010, pp. 12 – 14.
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Since the Cambria County Court had already dismissed the identical complaint, it would have been a
waste of time and resources to transfer the case to the appropriate venue.
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See Exhibits A – O attached to defendant’s “Motion to Revoke Plaintiff’s Informa Pauperis Status
Pursuant to Section 6602 (f) of the Prison Litigation Reform Act.”
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NO. 2009 – 7651 CIVIL TERM
or a temporary restraining order which makes a credible allegation that
the prisoner is in imminent danger of serious bodily injury.
Despite the plaintiff’s protestations to the contrary we were satisfied that there was no
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credible allegation that he was in “imminent danger of serious bodily injury.” Therefore
we dismissed the action.
The plaintiff also raised several constitutional challenges to Section 6602 (f) (1)
of the Act. However, those identical challenges were raised and decided against him in
Jae v. Good, 946 A.2d 802 (Pa. Commonwealth 2008), allocatur denied 598 Pa.790,
959 A.2d 930 (2008), certiorari denied 129 S.Ct. 1042 (2009)
___________________ ________________________
DATE Edward E. Guido, J.
John Richard Jae
#BQ-3219
SCI-Cresson/SNU
Cresson, Pa. 16699-0001
Maria G. Macus-Bryan, Esquire
55 Utley Drive
Camp Hill, Pa. 17011
:sld
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The existence of potholes, cracked sidewalks and wet kitchen floors may pose a danger but we are
confident that the danger is not sufficiently imminent to survive a motion under 6602 (f).
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