PRALL v. BOCCHINI et al
Filing
142
OPINION. Signed by Chief Judge Jerome B. Simandle on 9/27/2012. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TORMU E. PRALL,
Plaintiff,
v.
CHARLES ELLIS, et al.,
Defendants.
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Civil Action No. 10-1228 (JBS)
OPINION
APPEARANCES:
TORMU E. PRALL, Plaintiff pro se
#700294B/650739
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
CHRISTINE H. KIM, ESQ.
STATE OF NEW JERSEY OFFICE OF THE ATTORNEY GENERAL
25 Market Street, P.O. Box 112
Trenton, New Jersey 08625
Counsel for Defendants, Michelle R. Ricci, William J.
Moliens, Chris Holmes, Jimmy Barnes, James Drumm, Ron
Wagner, James Keil, Lt. Alaimo, and Ortiz
JOI LYNNE ORTIZ, ESQ.
OFFICE OF THE MERCER COUNTY COUNSEL
McDade Administration Building
640 South Broad Street, P.O. Box 8068
Trenton, New Jersey 08650-0068
Counsel for Defendants, E. Williams, T. Wilkie, Nurse Pete
S., and John Does 1-25
SIMANDLE, District Judge
THIS MATTER comes before the Court on the motion of
plaintiff, Tormu E. Prall (“Prall”), for entry of default and an
injunction against defendants, E. Williams, T. Wilkie, Nurse Pete
S., filed on or about December 28, 2011.
(Docket entry no. 59).
Defendants, E. Williams, T. Wilkie, Nurse Pete S., filed a
response in opposition to Prall’s motion on or about January 30,
2012.
(Docket entry no. 67).
This motion is being considered on
the papers pursuant to Fed.R.Civ.P. 78.
For the reasons set
forth below, plaintiff’s motion is denied.
I.
BACKGROUND
In an Opinion and Order filed on September 23, 2011, the
Honorable Freda L. Wolfson, U.S.D.J., dismissed without
prejudice, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1), all claims asserted by Prall in his original and
amended Complaints that attempted to challenge Prall’s state
court conviction, sentence and/or extradition.
Likewise, Prall’s
claims against the Mercer County Prosecutor defendants, namely,
defendants Bocchini and Galuchie were dismissed.
In addition,
the original and amended Complaints were dismissed without
prejudice in their entirety as against named defendants Sypek,
Blair, Hughes, Ganges, Mair, Blakey and Crowley, because Prall
failed to state a viable claim against these defendants based on
more than mere supervisor liability.
Further, Judge Wolfson
dismissed without prejudice Prall’s claims asserting conspiracy,
retaliation, denial of access to the courts, and denial of his
First Amendment right to free exercise of religion.
Prall’s
claims asserting deprivation of property, denial of due process
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based on his MCU placement and classification, denial of due
process based on false disciplinary charges, denial of equal
protection, denial of his self-styled Ninth Amendment right to
revolt, and denial of his rights against self-incrimination and
to a presumption of innocence, and his claims asserted against
the AKFC defendants, were dismissed with prejudice, for failure
to state a claim, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1).
However, Judge Wolfson allowed plaintiff’s claims
alleging unconstitutional conditions of confinement and excessive
force in violation of his Eighth and Fourteenth Amendment rights
to proceed with respect to the named NJSP defendants, Michelle R.
Ricci; William J. Moliens; Chris Holmes; Jimmy Barnes; James
Drumm; Ron Wagner; James Keil; Lt. Alaimo; Sgt. Ortiz and Captain
Ortiz; and John Roes 1-99, the unknown correctional officers and
SID investigators at NJSP; and the MCCC defendants, McCall,
Williams, Wilkie and the John Doe MCCC officers.
Plaintiff’s
claim asserting denial of free exercise of religion in violation
of RLUIPA also were allowed to proceed, but Judge Wolfson
directed that Prall must amend his Complaint to name the
appropriate NJSP defendants with respect to this claim within 30
days from entry of the accompanying Order.
Finally, Prall’s
motion for preliminary injunctive relief (Docket entry no. 18)
was denied, except with respect to his claim of ongoing physical
abuse.
As to that claim, Judge Wolfson directed that the NJSP
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defendants, namely, Michelle R. Ricci, William J. Moliens, Chris
Holmes, Jimmy Barnes, James Drumm, Ron Wagner, James Kiel, Lt.
Alaimo, Sgt. Ortiz and Captain Ortiz, respond in writing to the
Court concerning Prall’s allegations of ongoing physical abuse,
and to show cause why an injunction should not be issued against
the defendants.
(September 23, 2011 Opinion and Order, Docket
entry nos. 31 and 32).
Summons and the original and amended
Complaints were issued to the remaining defendants, namely, Jimmy
Barnes, James Drumm, Chris Holmes, James Keil, Lt. Alaimo, J.
McCall, William J. Moliens, Nurse Pete S., Ortiz, Michelle R.
Ricci, Ron Wagner, T. Wilkies, and E. Williams.
(Docket entry
no. 33).
On October 6, 2011, this action was reassigned to the
undersigned.
(Docket entry no. 34).
On October 12, 2011, counsel on behalf of NJSP defendants,
Jimmy Barnes, James Drumm, Chris Holmes, James Keil, Lt. Alaimo,
William J. Moliens, Ortiz, Michelle R. Ricci, and Ron Wagner, who
had not yet been served at that time, filed a response to the
September 23, 2011 Order to Show Cause concerning Prall’s
allegations of ongoing physical abuse, as well as a motion to
seal Exhibits D and E of the response.
36, and 37).
(Docket entry nos. 35,
This Court granted the motion to seal Exhibits D
and E, by Order entered on October 24, 2011.
38).
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(Docket entry no.
On October 19, 2011, Prall filed an appeal to the United
States Court of Appeals for the Third Circuit with regard to the
September 23, 2011 Opinion and Order that had dismissed certain
claims and defendants from this action.
(Docket entry no. 39).
On October 25, 2011, Prall also filed a motion before this Court
for reconsideration of the September 23, 2011 Opinion and Order.
(Docket entry no. 40).
On October 31, 2011, Prall filed an emergency motion for
reconsideration of the Court’s decision granting defendants’
motion to seal certain documents.
Prall’s motion also sought to
compel the defendants to serve plaintiff with the responsive
papers and all exhibits attached thereto.
(Docket entry no. 43).
In a Memorandum Opinion and Order entered on November 22, 2011,
this Court denied Prall’s motion for reconsideration of the
Court’s Order to seal certain exhibits, and granted Prall’s
motion to compel service of defendants’ response to the order to
show cause, the motion to seal and the corresponding exhibits.
(Docket entry nos. 46 and 47).1
On December 1, 2011, Prall filed a motion to amend the
record and a motion for a writ of mandamus, (Docket entry nos. 50
1
The docket entry for the November 22, 2011 Order (Docket
entry no. 47) erroneously reflects that the Court’s Order
pertained to plaintiff’s motion for reconsideration filed as
Docket entry no. 40. This Court notes that the November 22, 2011
Order actually pertains to plaintiff’s motion for reconsideration
of the seal Order, which motion was docketed as entry no. 43.
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and 51), which, together with his motion for reconsideration
(Docket entry no. 40), were denied by this Court in an Opinion
and Order entered on March 2, 2012.
76).
(Docket entry nos. 75 and
In addition, on March 5, 2012, this Court issued an Opinion
and Order denying Prall’s motion for a preliminary injunction
against certain New Jersey State Prison defendants regarding
allegations of ongoing physical abuse during plaintiff’s
confinement in the Management Control Unit (“MCU”) at the New
Jersey State Prison (“NJSP”).
(Docket entry nos. 77 and 78).
Less than two months after issuance of the Court’s September
23, 2011 Opinion and Order, on December 20, 2011, defendants, E.
Williams, T. Wilkie, Nurse Pete S., filed an answer to the
Complaint and amended Complaint, together with affirmative
defenses.
(Docket entry no. 54).
Apparently crossing in the
mail, on or about December 28, 2011, this Court received Prall’s
motion for entry of default and injunction against defendants, E.
Williams, T. Wilkie, Nurse Pete S.
(Docket entry no. 59).
In
his motion and Declaration in support of his motion, Prall
reiterates legal arguments and factual allegations in support of
his claims against these defendants, E. Williams, T. Wilkie,
Nurse Pete S.
(Docket entry no. 59).
On January 30, 2012, defendants, E. Williams, T. Wilkie,
Nurse Pete S., filed an opposition to plaintiff’s motion.
(Docket entry no. 67).
Defendants argue that plaintiff’s motion
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is now without merit or has been remedied because defendants had
filed an answer with affirmative defenses before Prall filed his
motion, and because the parties have been actively engaged in
discovery with respect to plaintiff’s claims in his Complaint and
amended Complaint.
(Docket entry no. 67).
Plaintiff has not
replied to defendants’ response.
II.
DISCUSSION
Prall asks this Court to enter default against defendants,
E. Williams, T. Wilkie, Nurse Pete S., and enjoin them from
seeking a vacatur of entry of default.
This motion would appear
to have been submitted to the Court before Prall’s receipt of the
defendants’ answer in this action.
The docket in this case shows
that the summons were served by the U.S. Marshals on these
defendants on November 22, 2011 and were returned executed on
November 28, 2011.
(Docket entry no. 48).
Defendants’ answer
was due on December 13, 2011 (see Docket entry no. 48), and an
answer was in fact filed merely one week later on December 20,
2011.2
(Docket entry no. 54).
Accordingly, Prall’s request for
2
A party in this district may obtain an automatic extension
of 14 days to answer a complaint or other pleading on an order
granted by the Clerk of Court. L. Civ. R. 6.1(b). This rule
exists because, generally speaking, no prejudice is caused by the
filing of an answer within 14 days after the due date. Likewise,
in this case, where the answers of these defendants were filed
within 14 days of the due date but before the filing of
plaintiff's request for entry of default, the request for default
is mooted. Given the confusing status of the pleadings at that
point in time, these defendants' slight tardiness beyond the date
to answer is excusable and caused no harm to the interests of
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entry of default is rendered moot because an answer was filed
before he submitted his motion for entry of default.
To the extent that Prall’s motion contains legal argument
and factual allegations in support of his claims against these
defendants, E. Williams, T. Wilkie, Nurse Pete S., for default
judgment, these factual showings are premature because there is
no pending dispositive motion.
In the future, if there is
summary judgment motion practice by either party, these and other
facts and circumstances will become relevant.3
III.
CONCLUSION
Therefore, for the reasons set forth above, plaintiff’s
motion for entry of default and injunction against vacating
default (Docket entry no. 59) will be denied.
An appropriate
order follows.
s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United States District Court
Dated:
September 27, 2012
justice.
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This Court’s opinion should not be construed in any way
as deciding the merits of Plaintiff’s claims, nor should it be
interpreted as suggesting that a motion for summary judgment may
be approved or should be filed on behalf of any party.
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