PRALL v. BOCCHINI et al
Filing
163
OPINION. Signed by Chief Judge Jerome B. Simandle on 12/21/2012. (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NOT FOR PUBLICATION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, DEPUTY ATTORNEY GENERAL
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 motions of
plaintiff, Tormu E. Prall (“Prall”), for an injunction (Docket
entry no. 81), filed on or about March 16, 2012, and for legal
supplies (Docket entry no. 84), filed on March 26, 2012.
Counsel for Defendants, Jimmy Barnes, James Keil, Michelle
Ricci and Chris Holmes (collectively the “NJSP Defendants”),
filed opposition to Plaintiff’s motions.
Recently, Plaintiff
filed a motion for leave to file a second amended Complaint, on
or about September 4, 2012, raising, among other things,
similar allegations as contained in his motions for an
injunction and for legal supplies. (See Docket entry no. 135).
These three motions are being considered on the papers pursuant
to Fed.R.Civ.P. 78.
For the reasons set forth below,
Plaintiff’s motion for legal supplies is denied without
prejudice, and his motions to amend his Complaint a second time
and for an injunction are granted in part.
I.
BACKGROUND
In an Opinion and Order filed on September 23, 2011
(Docket entry nos. 31 and 32), 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
2
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 based
on his MCU placement and classification, denial of due process
based on false disciplinary charges, denial of equal
protection, denial of his 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;
3
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 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).1
On October 6, 2011, this action was reassigned to the
undersigned judge.
(Docket entry no. 34).
1
Plaintiff has filed three motions seeking to vacate the
September 23, 2011 Opinion and Order because it dismissed a
substantial portion of Plaintiff’s action. All three motions
have been denied. In addition, Plaintiff filed an appeal to the
United States Court of Appeals for the Third Circuit, which was
denied on May 3, 2012, for failure to timely prosecute.
4
On March 5, 2012, this Court denied Plaintiff’s
application for a preliminary injunction, but did not dismiss
Plaintiff’s Eighth Amendment claim of retaliatory and ongoing
physical abuse and torture.
(See Opinion and Order docketed at
entry nos. 77 and 78).
Thereafter, on or about March 16, 2012, Plaintiff filed
this motion for an injunction, alleging that, in addition to
the ongoing physical abuse and torture previously pled, on
March 10, 2012, New Jersey State Prison (“NJSP”) correctional
officers, J. Ilardi, McNair, Sergeant J. Lindsey, and two
unknown correctional officers, forced Plaintiff to perform oral
sex on them.
(Docket entry no. 81 at ¶ 1).
Plaintiff also alleges that before the sexual assault
occurred, Officer J. Dominguez and one of the unknown
correctional officers “ransacked” Plaintiff’s cell and threw
away or confiscated Plaintiff’s legal documents related to this
case.
These officers also left Plaintiff’s cell in a
“shambles.”
(Id., ¶ 2).
Plaintiff further alleges that
Sergeant B. Gilmartin and other unknown custody supervisors
failed to contact the Special Investigation Division (“SID”)
about the incident, failed to summon medical staff to provide
medical treatment for Plaintiff, and failed to prevent the
officers under their command and control from starving
Plaintiff from the food served on the prison menu.
5
(Id., ¶ 3).
Plaintiff seeks relief from the “pain and suffering [he]
has experienced since his placement in the Management Control
Unit,” and claims that the physical abuse “has not stopped,”
and the NJSP defendants “are unable and unwilling to prevent
these abuses.”
(Id., ¶ 4).
On March 26, 2012, Plaintiff filed a motion for supplies.
(Docket entry no. 84).
Specifically, Plaintiff asks that he be
provided with pens, legal size note pads, white envelopes and
manilla envelopes so that he can prepare and file legal
documents with respect to his case before the Court.
Plaintiff
also contends that he did not receive the grievance responses,
making prison administrative remedies “unavailable.”
entry no. 84, Motion at ¶ 1, Declaration at ¶ 1).
(Docket
The
Declaration submitted by Plaintiff in support of his motion for
supplies further reiterates the charges Plaintiff made
concerning the physical abuse, sexual assault, and ransacking
of his cell and confiscation/loss of his legal documents, which
he had alleged in his motion for injunctive relief (Docket
entry no. 81).
(See Docket entry no. 84 at ¶ 3).
Plaintiff also alleges that, on March 11, 2012, the SID
conducted a “sham” investigation regarding Plaintiff’s alleged
sexual assault.
The SID officers purportedly told Plaintiff
that nothing would come of his complaint because “inmates are
6
scum of the earth and prison officials [are] considered the
good guys.”
(Docket entry no. 84, Decl., ¶ 4).
Plaintiff further alleges that, on March 13, 2012,
Disciplinary Hearing Officer (“DHO”) C. Ralph approached
Plaintiff’s cell and told Plaintiff that she was present to
adjudicate Plaintiff guilty on disciplinary charges.
Plaintiff
replied that he had never been served with disciplinary
charges.
DHO Ralph allegedly told Plaintiff that the named
defendants in this civil action were her “good friends” and
asked the DHO to sanction Plaintiff to administrative
segregation so that Plaintiff would not receive state pay,
would receive only 4X6 inch writing paper, be allowed only
three showers per week, and would get a state care package of
toiletries containing only an ink pen, a small tube of
toothpaste and deodorant.
(Id., ¶¶ 5 and 6).
Plaintiff alleges that an hour after the DHO came to his
cell, he received an adjudication of disciplinary charge form.
Plaintiff claims that DHO Ralph lied about what Plaintiff had
told her, and sanctioned Plaintiff to 15 days loss of
recreation, 15 days detention, 60 days loss of communication,
and 90 days administrative segregation.
(Id., ¶ 7).
Plaintiff alleges that after he received the disciplinary
report, Officer Dominguez and two unknown officers came to
Plaintiff’s cell, beat Plaintiff to the body, made him ingest
7
hallucinating drugs, and forced Plaintiff again to perform oral
sex on them.
Plaintiff alleges these officers then told
Plaintiff that their coworkers don’t care about anything the
court has to say in this case.
(Id., ¶ 8).
On May 7, 2012, counsel for the NJSP defendants filed
opposition to the motions for an injunction and for supplies.
(Docket entry no. 103).
In their response, NJSP defendants
argue that Plaintiff’s motion for an injunction must be denied
because he has failed to exhaust his administrative remedies.
The NJSP defendants acknowledge that Plaintiff filed grievances
regarding legal supplies and the March 10, 2012 incident, but
he failed to administratively appeal them.
(Declaration of
Brenda A. Hutton [“Hutton Decl.”] at Exhibit C, DOC 3, DOC 72,
DOC 107, DOC 130, DOC 163, DOC 166, and DOC 190, Docket entry
no. 103).
The NJSP defendants further contend that the motion
for injunctive relief must be denied because Plaintiff’s motion
seeks an injunction against non-parties, and because Plaintiff
does not make the requisite showing for injunctive relief.
(NJSP Defendants’ Opposition Brief at pp. 9-13, Docket entry
no. 103; see also Docket entry no. 87).
On May 29, 2012, Plaintiff filed a reply to the NJSP
defendants’ opposition.
(Docket entry no. 110).
Plaintiff
argues that the Exhibits A-C, except DOC 190, should be
stricken because they are immaterial to the issues.
8
Plaintiff
also appears to allege that he had exhausted his administrative
appeals, and that the letters he wrote to the Chief
Disciplinary Hearing Office/Central office on appeal were not
submitted by counsel purposely as a cover-up.
(Plaintiff’s
Reply at ¶¶ 2-4, Docket entry no. 110).
On June 28, 2012, Plaintiff submitted another letter
regarding his motions for an injunction and for supplies.
(Docket entry no. 118).
Plaintiff attaches three inmate remedy
forms dated January 12, 2012, January 19, 2012 and March 21,
2011, an a Declaration by Inmate Brian Paladino, “showing the
manipulation used to deny legal supplies.”
118 at pg. 2).
(Docket entry no.
Plaintiff alleges that law library staff and
their supervisors respond to these grievances that the legal
supplies were provided and “side-step [Plaintiff’s] complaint
that [he] be required to sign acknowledgment that [he] actually
did receive these items.”
(Id. at pg. 5).
Accordingly,
Plaintiff asks the Court to direct the NJSP defendants to
provide him with supplies as needed and to be able to
demonstrate with physical evidence that the requested supplies
were actually provided to Plaintiff.
II.
A.
(Id., pp. 9-11).
DISCUSSION
Motion for Legal Supplies
The right of access to the courts requires that “adequate,
effective, and meaningful” access must be provided inmates who
9
wish to challenge their criminal charge, conviction, or
conditions of confinement.
(1977).
Bounds v. Smith, 430 U.S. 817, 822
In other words, prison officials must “give prisoners
a reasonably adequate opportunity to present claimed violations
of fundamental constitutional rights to the Courts.”
825.
Id. at
“‘[T]he touchstone ... is meaningful access to the
courts.’” Peterkin v. Jeffes, 855 F.2d 1021, 1037 (3d Cir.
1988)(quoting Bounds, 430 U.S. at 823)(internal quotation
omitted).
In Bounds, the Supreme Court held that “the
fundamental constitutional right of access to the courts
requires prison authorities to assist inmates in the
preparation and filing of meaningful legal papers by providing
prisoners with adequate law libraries or adequate assistance
from persons trained in the law.”
Bounds, 430 U.S. at 828.
However, to bring a successful claim, a plaintiff or
prisoner must allege that he sustained an “actual injury” as a
result of the denial of this right.
“[A]n inmate cannot
establish relevant actual injury simply by establishing that
his prison’s law library or legal assistance program is subpar
in some theoretical sense.”
(1996).
Lewis v. Casey, 518 U.S. 343, 351
The plaintiff must demonstrate the shortcoming of the
legal assistance or law library hindered his efforts to pursue
a legal claim.
Id.
Furthermore, the “injury requirement is
not satisfied by just any type of frustrated legal claim.”
10
Id.
at 354.
The “actual injury” requirement must relate to the
plaintiff’s inability to attack his sentence or challenge the
conditions of his confinement.
“Impairment of any other
litigating capacity is simply one of the incidental (and
perfectly constitutional) consequences of conviction and
incarceration.”
Id. at 355.
Here, the NJSP defendants provide documentary evidence
that Plaintiff was provided legal supplies he requested.
Various inmate remedy forms submitted by Plaintiff regarding
legal supplies, as well as his prison trust account statement,
show that Plaintiff has routinely been provided with legal
supplies.
Moreover, given the constant barrage of pleadings,
motions and other papers submitted by Plaintiff to this Court,
it is readily apparent that Plaintiff does not suffer the lack
of adequate legal supplies that would impair his litigating
capacity in any way.
Moreover, Plaintiff’s submission in reply
to his motion for legal supplies offers nothing to refute that
he has been provided legal supplies or that he has been
impaired in litigating his claims.
Finally, to the extent that Plaintiff is seeking extra
legal supplies or expanded use of the prison library, prisons
may “reasonably limit the times, places, and manner in which
inmates may engage in legal research and preparation of legal
papers” so long as the prison does not frustrate the inmates’
11
constitutional right to access the courts.
Gittlemacker v.
Prasse, 428 F.2d 1, 7 (3d Cir. 1970); see also Tucker v. New
York Police Dept., 408 Fed. Appx. 513, 517 (3d Cir. 2010).
Here, as mentioned above, there is no evidence that the NJSP
defendants deprived Plaintiff of access to the courts, and this
is amply supported by the great number of documents that
Plaintiff has filed, and continues to file, in this case.
Therefore, the Court will deny Plaintiff’s motion for
legal supplies for lack of merit.
B.
Motion to File a Second Amended Complaint
As discussed above, on or about September 4, 2012,
Plaintiff filed a second amended Complaint, without leave of
court, most likely in response to the NJSP defendants’ response
to his motion for an injunction.
Because Plaintiff is a
prisoner and is proceeding in this matter in forma pauperis,
his second amended Complaint (Docket entry no. 135) is subject
to sua sponte screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A, to determine whether it should be dismissed as
frivolous or malicious, for failure to state a claim upon which
relief may be granted, or because it seeks monetary relief from
a defendant who is immune from such relief.2
2
The Prison Litigation Reform Act (“PLRA”), Pub. L. No.
104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26,
1996), requires a district court to review a complaint in a civil
action in which a prisoner is proceeding in forma pauperis or
12
In his second amended Complaint, Plaintiff renews claims
that were dismissed previously, and which were denied
seeks redress against a governmental employee or entity. The
Court is required to identify cognizable claims and to sua sponte
dismiss any claim that is frivolous, malicious, fails to state a
claim upon which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C. §§
1915(e)(2)(B) and 1915A. Plaintiff’s second amended Complaint is
subject to sua sponte screening for dismissal under both 28
U.S.C. § 1915(e)(2)(B) and § 1915A.
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007)
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
The Supreme Court refined the standard for summary dismissal
of a complaint that fails to state a claim in Ashcroft v. Iqbal,
556 U.S. 662 (2009). The Court examined Rule 8(a)(2) of the
Federal Rules of Civil Procedure which provides that a complaint
must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
Citing its opinion in Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007) for the proposition that “[a] pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do,’” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 555), the Supreme Court held
that, to prevent a summary dismissal, a civil complaint must now
allege “sufficient factual matter” to show that the claim is
facially plausible. This then “allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Fowler v. UPMC Shadyside, 578 F.3d 203 (3d
Cir. 2009)(citing Iqbal, 556 U.S. at 676). The Supreme Court’s
ruling in Iqbal emphasizes that a plaintiff must demonstrate that
the allegations of his complaint are plausible. See id. at 67879; see also Twombly, 505 U.S. at 555, & n. 3; Warren Gen. Hosp.
v.. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011). “A complaint
must do more than allege the plaintiff’s entitlement to relief.
A complaint has to ‘show’ such an entitlement with its facts.”
Fowler, 578 F.3d at 211 (citing Phillips v. County of Allegheny,
515 F.3d 224, 234–35 (3d Cir. 2008). See also Argueta v. .S
Immigration & Customs Enforcement, 643 F.3d 60, 73 (3d Cir.
2011); Bistrian v. Levi, __ F.3d __, 2012 WL 4335958, *8 (3d Cir.
Sept. 24, 2012)(allegations that are no more than conclusions are
not entitled to the assumption of truth; a court should “look for
well-pled factual allegations, assume their veracity, and then
‘determine whether they plausibly give rise to an entitlement to
relief.’”)(quoting, Iqbal, 556 U.S. at 679).
13
reconsideration on several occasions.
(See docket history).
Plaintiff’s attempt to re-litigate claims that were dismissed
will not be countenanced yet again.
Plaintiff must resort to
an appeal of the Court’s September 23, 2011 Opinion and Order.
Therefore, Plaintiff’s attempt to reintroduce claims and
parties in this action by this second amended Complaint will be
denied.3 Furthermore, Plaintiff is hereby warned that if he
3
For instance, Plaintiff again tries to insert his
challenges to his conviction, sentence, extradition, and
confinement that were previously dismissed. He renames
defendants, Joseph L. Bocchini, Brian M. Hughes, Kelvin S.
Ganges, Andrew A. Mair, Arthur R. Sypek, Joseph P. Blaney, Sarah
C. Crowley, and Ann Klein defendants (John Does 1-10, Robert L.
Roth, Mahmood Ghahramani, Nydia Santos), who were previously
dismissed from this action. In addition, Plaintiff’s attempt to
further explicate previously dismissed claims, such as those
claims now advanced again under the following headings in his
second Amended Complaint, such as “Unconstitutional
Incarceration” (¶¶ 49-53), “Extradition” (¶¶ 54-57), “Ann Klein”
(¶¶ 58-66), “Retaliation” (¶¶ 67-79, with the exception of those
allegations pertaining to excessive force or physical abuse by
remaining defendants, Sgt. McCall, Officer Wilkie and Officer
Williams at ¶ 72), “Denial of Access to the Courts” (¶¶ 80-86),
“Higher Security Classification” (¶¶ 87-93), will not be allowed
because the allegations fail to state a claim. To the extent
that Plaintiff’s allegations concerning the harsh conditions of
confinement in the MCU at NJSP are legal conclusions without
factual allegations pertaining to Plaintiff, as set forth in
“Management Control Unit” (¶¶ 94-104), they too will be dismissed
without prejudice under Iqbal. In addition, Plaintiff’s claims
against the MCU Review Committee concerning his placement in the
MCU (¶¶ 131-158) were dismissed in the September 23, 2011 Opinion
and Order, and thus, Plaintiff’s new allegations, which are
simply reiterations of legal conclusions, will be dismissed.
Plaintiff’s allegations complaining of denial of access to the
courts in ¶ 159 of the second amended Complaint also will be
dismissed because Plaintiff has not demonstrated actual injury,
as previously discussed in the September 23, 2011 Opinion. The
allegations under the heading “Grievance Process” at ¶¶ 161-167
also will be dismissed because Plaintiff is simply challenging
this Court’s ruling in the Opinion and Order entered on March 5,
2012, and Plaintiff does not make a showing of any dispositive
14
attempts again to file a pleading that purports to repeat
claims that have already been dismissed or to name defendants
against whom all claims have previously been dismissed, this
case will be subject to dismissal for vexatious litigation
tactics, as the accompanying Order will so provide.
However, Plaintiff does set forth new allegations of
physical abuse related to his claim against the NJSP defendants
of ongoing torture and physical abuse in violation of his
Eighth Amendment right against cruel and unusual punishment.
In his proposed second amended Complaint, at heading “Initial
Placement” (¶¶ 105-112), Plaintiff mostly reiterates his claim
concerning the conditions of his confinement upon his initial
placement in the Management Control Unit (“MCU”) that were
allowed to proceed, pursuant to the September 23, 2011 Opinion
and Order issued by Judge Wolfson.
Plaintiff names two
additional defendants in this claim, Charles Warren,
factual matters or controlling decisions of law that were
overlooked by the Court in reaching its prior decision. See
L.Civ.R. 7.1(i); Dunn v. Reed Group, 2010 U.S. Dist. LEXIS 2438
(D.N.J. Jan. 13, 2010). The allegations under the heading
“Claims of Invalidity” at ¶¶ 168-178 simply reiterate Plaintiff’s
argument that he is a conscientious objector, which is a back
door challenge to his conviction and which has been dismissed
previously. The Court also will not allow Plaintiff to re-assert
his claim of a “Constitutional Right to Revolution” (¶¶ 179-183),
because this claim also was dismissed in the September 23, 2011
Opinion and Order. Finally, Plaintiff’s last attempt to
challenge his conviction, in the section under “Precepts or
Religion” (¶¶ 184-194), asserting that his Nation of Gods and
Earths religious system of beliefs preclude him from availing
himself of the advice of counsel or participating in the criminal
justice process, will be dismissed for the same reasons as set
forth in the September 23, 2011 Opinion and Order.
15
Administrator at NJSP, and Vincent B. Wojciechowicz, Special
Investigation Division (“SID”) Investigator at NJSP.
(Second
Amended Complaint (“2d Am. Compl.”) at ¶¶ 106, 112).
The Court
will allow this amendment to add these two new parties at this
time.
Next, at ¶ 118, Plaintiff alleges that abuse of force
forms or complaints filed by inmates against correctional
officers are forwarded to named NJSP defendants, Ricci, Barnes,
Drumm, Moliens, Keil, Lt. Alaimo and Ortiz, as well as new
defendants, Wojciechowicz, Warren, Suzanne Lawrence, NJSP
Assistant Superintendent, and Kenneth Nelson, NJSP Associate
Administrator.
This allegation appears to allege that these
defendants had personal or actual knowledge concerning Prall’s
complaints of ongoing physical abuse.
Accordingly, the Court
will allow this amendment of new parties as well because it
relates to an ongoing claim by Plaintiff.
The most significant new allegations in his second amended
Complaint, which relate to Plaintiff’s motion for an
injunction, involves the incident that allegedly occurred on
March 10, 2012.
On that date, Plaintiff alleges that Officers
J. Dominguez and M. Moura ransacked his cell and that Sgt. J.
Lindsey, Officer McNair, Officer J. Ilardi and two unknown
correctional officers forced Plaintiff to perform oral sex on
them.
(2d Am. Compl., ¶ 123).
Plaintiff also alleges that
these officers, Sgt. Gilmartin and unknown nurses and custody
16
supervisors refused to provide Plaintiff medical treatment and
covered up the incident until it was reported to the SID on
March 11, 2012.
(Id.).
Plaintiff also alleges that he
received disciplinary sanctions as a result of the incident in
retaliation for Plaintiff pursuing this litigation.
Compl., ¶ 124).
(2d Am.
Plaintiff further alleges that on or about
March 14, 2012, Officer Dominguez and two unknown officers beat
Plaintiff, forced him to ingest hallucinating drugs and then
forced him to perform oral sex on them.
The SID conducted
investigations of both incidents, but Plaintiff contends that
the investigation was a sham.
Id., ¶ 125).
The Court will
allow these claims of alleged sexual assault, physical abuse
and continuing torture to proceed at this time against the
remaining NJSP defendants, as well as the newly named
defendants, Officers J. Dominguez, M. Moura, McNair, J. Ilardi,
Sgt. J. Lindsey, and the two unknown correctional officers who
allegedly took part in the alleged incidents of physical abuse
against Plaintiff on March 10, 2012 and March 14, 2012.
In
addition, Plaintiff’s claims of denial of medical treatment for
injuries allegedly sustained during the March 2012 incidents,
and the retaliatory disciplinary charges will be allowed to
proceed as against these defendants as well.
Plaintiff also generally alleges that “defendants Ricci,
Holmes, Barnes, Drumm, Moleins, Keil, Raupp, Stephens,
Defilippo [newly added in the second amended Complaint], Ismael
17
[terminated as a defendant in the September 23, 2011 Opinion
and Order], Warren [newly added here], Wojciechowicz [newly
added], Nelson [newly added], Lawrence [newly added], Alaimo,
Ortiz, Newsom, and unknown named corrections officers tell
Prall the pain and suffering will not stop unless he abandons”
his “ultimate religious goal ...to receive his just dues, to be
treated with dignity and worth of the human person, to receive
fair and equal treatment, to search for and obtain the truth,”
and to have defendants “account for their transgressions.”
Am. Compl., ¶¶ 128, 129).
(2d
This general allegation fails to
state a claim and will be dismissed accordingly under the Iqbal
standard.
See fn. 2, supra.
Finally, in his second amended Complaint, Plaintiff
alleges that he is being denied legal services because he must
submit a request to visit the law library.
He attaches letters
dated February 21, 2012, May 2, 2012 and July 12, 2012 from the
NJDOC Ombudsman, but these letters do not tend to support
Plaintiff’s general allegation of denial of legal services.
Accordingly, this claim (¶¶ 195-196) will be dismissed for
failure to state a claim.
C.
See fn. 2, supra.
Motion for Injunction
To secure the extraordinary relief of a preliminary
injunction or TRO, plaintiff must demonstrate that “(1) he is
likely to succeed on the merits; (2) denial will result in
irreparable harm; (3) granting the injunction will not result
18
in irreparable harm to the defendants]; and (4) granting the
injunction is in the public interest.”
Maldonado v. Houston,
157 F.3d 179, 184 (3d Cir. 1998), cert. denied, 526 U.S. 1130
(1999)(as to a preliminary injunction); see also Ballas v.
Tedesco, 41 F. Supp.2d 531, 537 (D.N.J. 1999) (as to temporary
restraining order).
A plaintiff must establish that all four
factors favor preliminary relief.
Council of Alt. Political
Parties v. Hook, 121 F.3d 876, 879 (3d Cir. 1997); see also
Brown v. Beard, 445 Fed. Appx. 453, 456 (3d Cir. Sept. 20,
2011);
Opticians Ass’n of America v. Independent Opticians of
America, 920 F.2d 187 (3d Cir. 1990).
The standards for a
permanent injunction are essentially the same as for a
preliminary injunction, except that the plaintiff must show
actual success on the merits, not a likelihood of success, to
obtain a permanent injunction.
See University of Texas v.
Camenisch, 451 U.S. 390, 392 (1981).
Here, the NJSP defendants first argue that an injunction
should not issue because the individuals whose conduct he is
seeking to enjoin are not named as defendants in this action.
See Ball v. Famiglio, 396 Fed. Appx. 836, 838 (3d Cir. Oct. 7,
2010).
Moreover, defendants argue that Plaintiff has not
alleged any facts to show that the named NJSP defendants were
aware of the allegations concerning the March 10, 2012
“ransacking” of his cell and the alleged sexual assault, the
March 11, 2012 “sham” investigation, or the March 13, 2012
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alleged assault on Plaintiff by unknown officers who allegedly
beat Plaintiff, forced hallucinating drugs on him and forced
him to perform oral sex.
Since the date Plaintiff first filed his motion for an
injunction, he has filed a second amended Complaint which,
among other things, seeks to add claims regarding a sexual
assault and physical abuse against new defendants, as well as
the remaining NJSP defendants, that relate to his motion for an
injunction.
As discussed above, this Court has determined that
this new claim may proceed at this time against the new
defendants.
Therefore, the NJSP defendants’ argument that an
injunction should not issue because the individuals whose
conduct Plaintiff is seeking to enjoin are not named as
defendants in this action is rendered moot.
Plaintiff also
overcomes the remaining NJSP defendants’ argument that
Plaintiff has not shown that the remaining NJSP defendants were
aware of, or had actual knowledge of, the March 2012 incidents
of physical and sexual abuse by alleging actual knowledge in
his second amended Complaint.
(See, e.g., 2d Am. Compl., ¶
118).
Thus, Plaintiff’s allegations in his second amended
Complaint concerning the March 2012 incidents of physical and
sexual abuse in the MCU, if true, may be sufficient at this
time to satisfy the first requirement for injunctive relief,
that is, that Plaintiff may be likely to succeed on the merits.
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Additionally, such allegations of physical harm and sexual
abuse also demonstrate that Plaintiff may be subject to
irreparable harm.
Further, to the extent that the allegations
of physical and sexual abuse by the correctional officers may
be true, as alleged, granting an injunction would be in the
public interest and would not likely result in irreparable harm
to defendants because such conduct by the defendants is
unlawful.
However, before the Court can grant a preliminary
injunction on ex parte allegations, it is appropriate to compel
the NJSP defendants, including the newly added parties, to
respond promptly to Plaintiff’s new allegations concerning th
March 2012 incidents.
Accordingly, the Court will direct the
NJSP defendants, including the newly added defendants, to
respond in writing to this Court, within thirty (30) days from
the date the accompanying Order is issued, as to Plaintiff’s
allegations of ongoing physical and sexual abuse, in
particular, the March 2012 incidents.
III.
CONCLUSION
Therefore, for the reasons set forth above, Plaintiff’s
motion for legal supplies (Docket entry no. 84) will be denied
without prejudice.
Plaintiff’s motion to amend his Complaint a
second time (Docket entry no. 135) will be granted in part.
Finally, as to Plaintiff’s motion for an injunction (Docket
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entry no. 81), the Court will direct the remaining NJSP
defendants, as well as the newly added defendants, to respond
in writing to this Court within thirty (30) days from the date
of entry of the accompanying Order, concerning Plaintiff’s new
allegations of physical and sexual abuse in March 2012, and to
show cause in writing why an injunction should not be issued
against the remaining defendants in this regard.
An
appropriate order follows.
s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United States District Court
Dated:
December 21, 2012
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