Credico, J. v. Officer Romero

J-S59001-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 JUSTIN M. CREDICO, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant v. OFFICER ROMERO, OFFICER PEREZ, LT.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 -2- J-S59001-17 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: -3- J-S59001-17 (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. ____________________________________________ 1 The Appellees have not filed a brief with this Court. -4- J-S59001-17 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 10/24/2017 -5- Circulated 10/06/2017 01:41 PM