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Tormu E. Prall v. Joseph L. Bocchini

August 19, 2011

TORMU E. PRALL,
PETITIONER,
v.
JOSEPH L. BOCCHINI, JR., ET AL., RESPONDENTS.



The opinion of the court was delivered by: Wolfson, District Judge

NOT FOR PUBLICATION

OPINION

This matter comes before the Court upon the motions of pro se petitioner, Tormu E. Prall ("Prall") for vacatur (Docket entry no. 17) and for recusal (Docket entry no. 22). Prall submitted his application for vacatur on February 3, 2011, and his motion for recusal on or about May 2, 2011.*fn1 These motions are decided without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below, the motions will be denied.

I. BACKGROUND

On or about March 8, 2010, Prall filed a Complaint against numerous defendants,*fn2 alleging that he has been confined to the Management Control Unit ("MCU") at the New Jersey State Prison ("NJSP") since December 12, 2009, based on allegedly false disciplinary infractions against him. Prall states that he is a conscientious objector to the criminal justice process as it applies to him and has been incarcerated for his refusal to appear at his January 2008 criminal trial and submit to his ultimate conviction at that trial. (See Complaint at ¶¶ 12-13, Docket entry no. 1). The Complaint further alleged that Prall had been placed in the MCU for three weeks with only a gown and mattress. He received no supplies to clean blood and feces on the floor in his cell. Prall was under close/camera watch during this time. The Complaint also states that when Prall complained about the dirty conditions of his cell, certain correctional officers slapped, joked, punched, kicked, clubbed , and threatened plaintiff. Plaintiff alleges that the camera was covered during this alleged assault. The Complaint did not allege that Prall needed medical treatment for any injuries from the alleged beating. Prall contends that he has remained in a MCU cell without blankets, sheets, shoes, towels, toiletries and canteen privileges. He also was denied access to paralegal assistance and his legal documents purportedly were withheld from him. (Id., Compl., ¶¶ 14, 15).

The Complaint seeks $1 million in compensatory damages and $1 million dollars in punitive damages from the named defendants, as well as unspecified declaratory and injunctive relief. (Id.).

On July 1, 2010, Prall filed an amended Complaint. (Docket entry no. 5). On August 16, 2010, this Court issued a Memorandum Opinion and Order, (Docket entry nos. 10 and 11), administratively terminating the case because Prall's filing was subject to the "three strikes" provision under 28 U.S.C. § 1915(g), and Prall had failed to pay the requisite $350.00 filing fee. Specifically, this Court found:

An examination of court records reveals plaintiff has filed numerous civil actions in the District of New Jersey. More than three of these actions have been dismissed under 28 U.S.C. §§ 1915(e)(2) and 1915A. See, e.g., Prall v. Whitman, et al., Civil No. 00-2718 (GEB); Prall v. New Jersey Department of Corrections, Civil No. 01-18 (JHR); Prall v. New Jersey Parole Board, Civil No. 01-44 (GEB); Prall v. Consovoy, Civil No. 01-1075 (SMO); and Prall v. Payton, et al., Civil No. 01-1990 (SMO).

Indeed, Mr. Prall has been a inexorable litigant in this federal court, despite his "conscientious objection" to the judicial process, in numerous and recent actions, all of which have been dismissed by the court for lack of jurisdiction or failure to state a claim. See, for example, Prall v. Ellis, Civil No. 08-6050 (FLW); Prall v. Ellis, Civil No. 09-271 (GEB); Prall v. City of Boston, et al., Civil No. 09-272 (FLW); Prall v. Superior Court of New Jersey, et al., Civil No. 09-1531 (MLC); Prall v. Superior Court of New Jersey, et al., Civil No. 09-1831 (MLC); Prall v. Trenton Municipal Court, Civil No. 09-2466 (MLC); Prall v. East Windsor Municipal Court, Civil No. 09-2603 (FLW); Prall v. Assignment Judge, Civil No. 09-2608 (FLW); Prall v. Burlington County Municipal Court, Civil No. 09-2615 (NLH); and Prall v. Bucks County Courthouse, Civil No. 09-3088 (FLW).

Clearly then, Plaintiff has exceeded the statutory limit as set forth in 28 U.S.C. § 1915(g) and is precluded from seeking in forma pauperis status based on the "three strikes" rule unless he alleges facts to show that he is in "imminent danger of serious physical injury", which would excuse him from the restrictions under § 1915(g).

In his Complaint, Plaintiff makes perfunctory and insufficient claims of "imminent danger." Indeed, he is simply invoking the "code word" of "imminent danger" to overcome with minimal effort his preclusion from seeking in forma pauperis status under 28 U.S.C. § 1915(g). He states no serious harm or injury, and in fact, his allegations are limited solely to a past incident which fails to allege serious physical injury. As noted above, the threat of imminent danger must be prospective and cannot relate to a past incident of harm as alleged here. See Abdul-Akbar, 239 F.3d at 312. Therefore, because the Complaint in this action does not contain sufficient allegations reasonably suggesting that Plaintiff is in "imminent danger of serious physical injury", which would excuse him from the restrictions under § 1915(g), Plaintiff may not proceed in forma pauperis.

This Court makes no findings as to whether or not Defendants have violated any state or federal law, or otherwise violated Plaintiff's constitutional rights. However, this Court finds that Plaintiff has not demonstrated "imminent danger" in order to override the "three strikes" requirement of § 1915(g). (August 16, 2010 Memorandum Opinion at pp. 4-6, Docket entry no. 10).

Prall had appealed the Court's ruling to the United States Court of Appeals for the Third Circuit. (Docket entry no. 12). On February 3, 2011, Prall filed a motion to vacate this Court's August16, 2010 Opinion and Order, which had administratively terminated his case. (Docket entry no. 17).

On April 28, 2011, the Third Circuit issued a judgment on Prall's appeal, vacating this Court's administrative termination of the action under 28 U.S.C. § 1915(g). Namely, the Third Circuit found that Prall's amended Complaint had alleged "a continuing danger of serious physical injury that was imminent at the time he filed his complaint." Accordingly, the Third Circuit directed that this Court's Order be vacated and remanded the matter for this Court: to grant Prall's motion for leave to proceed IFP if it determines that he has made a sufficient showing of indigence, see Gibbs v. Ryan, 160 F.3d 160, 161 n.1 (3d Cir. 1998), and thereafter to conduct such further proceedings as may be appropriate. We emphasize that we express no opinion on the merits of Prall's claims and that his complaint remains ...


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