ARUANNO v. STATE OF NEW JERSEY
Filing
5
OPINION. Signed by Judge William J. Martini on 3/9/16. (gh, )
FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOSEPH ARUANNO,
Civil Action No. 14-34 13 (WJM)
Plaintiff.
V.
SARAH DAVIS,
Defendants.
JOSEPH ARUANNO,
Civil Action No. 14-5099 (WJM)
Plaintiff.
STATE OF NEW JERSEY,
Defendants.
JOSEPH ARUANNO,
Civil Action No. 14-5 100 (WJM)
Plaintiff,
v.
OPINION
SARAH DAVIS,
Defendants.
APPEARANCES:
JOSEPH ARUANNO. #363
Special Treatment Unit
P.O. Box 905
Avenel, New Jersey 07001
Plaintiff Pro Se
MARTINI, District Judge:
Joseph Aruanno, who is civilly committed to the Special Treatment Unit under the New
Jersey Sexually Violent Predator Act, has been granted informapauperis status in at least 33 civil
rights actions in this Court. After this Court dismissed, and the Third Circuit affirmed dismissal
of at least 13 civil rights cases since 2011, this Court issued an Order to Show Cause, accompanied
by an Opinion, directing Aruanno to show why this Court should not deny his requests to proceed
in forma pauperis in the above captioned non-habeas civil actions because he has abused the
privilege of proceeding injàrma pauperis and his allegations do not show that he is in imminent
danger of serious physical injury. Aruanno responded to the Order to Show Cause, arguing that
he is in imminent danger, that this Court should appoint a guardian, that it would be unfair to deny
informapauperis status in habeas corpus cases, and that this Court improperly dismissed his prior
civil rights cases. This Court finds that Aruanno has abused the privilege of proceeding informa
pauperis and none of the allegations in the three actions presently before the Court indicates that
Aruanno faces imminent danger of serious physical injury. The Court will deny his applications
to proceed in forma pauperis in the above cases and administratively terminate these actions
subject to reopening in the event that Aruanno prepays the $400 filing and administrative fee in
each or any case, provided he does so within 30 days of the date of the entry of the Order
accompanying this Opinion.
I.
BACKGROUNI)
Aruanno seeks permission to proceed informapauperis and to thereby file two civil rights
complaints and a petition for mandamus without payment of the $400 filing and administrative
fees in each case.
Specifically, he seeks to bring Aruanno v. Davis, Civil Number 14-3413
(WJM), against Sarah Davis, the Assistant Superintendent of the Special Treatment Unit, alleging
that “certain staff refuse to close our cell doors as needed[, which] permits other residents/patients
to watch us using the toilet [that] is right in the doorway where some masturbate, etc.” (Civ. No.
3413, ECF No. 1 at 6.) Aruanno further asserts that officials allow residents to shield themselves
with a four-foot curtain, but he cannot afford to buy a curtain. He further claims that “when
sleeping, coming from the shower, etc., there are many female staff members who[] see us
changing, etc., then say we were exposing ourselves to them, which then keeps us here longer.”
Id.
He alleges that “curtains are not necessary if the doors were fixed to slide closed, as we were
told when we moved in here, but defendant Sarah Davis just informed me in writing that the doors
will not be adjusted and that curtains are a ‘PRIViLEGE’ that will be taken away, which has
happened, which has forced this submission, and others, requesting that this court address our
PRIVACY RIGHTS and how they apply to a therapeutic existence here.” Id. at 7. Aruanno
seeks injunctive relief, declaratory relief, and damages of ten million dollars.
Aruanno also seeks to file without prepayment of fees Aruanno v. Yates, Civil Number 145100 (WJM), against Administrator Yates, Assistant Superintendent Davis, and John/Jane Does
1-20. He claims that he is “being denied legal access such as a law library,” research material,
forms, envelopes, typewriters, photocopies, and paralegals. (Civ. No. 14-5 100, ECF No. 1 at 6.)
I-Ic asserts that “the injury inflicted as a result is such as the U.S. Supreme Court denying petition
No. 12-9040 by way of letter dated 7/3/20 13 because I could not obtain PlIOTOCOPIES in time.”
On February 20, 2013, Joseph Aruanno filed a petition for a writ of certiorari regarding Third
Circuit Number 12-2660, which the Supreme Court denied on April 29, 2013. In 12-2660, the
Third Circuit affirmed Judge Chesler’s dismissal with prejudice of the various claims Aruanno
raised in his complaint after Judge Chesler gave Aruanno leave to amend the complaint twice.
See Aruanno V. Allen, Civ. No. 09-1250 (SRC), order (D.N.J. Apr. 13, 2012), aff’d, 498 F.App’x
160 (3d Cir. 2012), cert. denied, 133 S.Ct. 2033 (Apr. 29, 20l3) (No. 12-9040).
3
Id.
He further alleges that “the state, JOHN/JANE DOES, et al., fail/refuse to comply with the
Americans with Disabilities Act; the Rehabilitation Act; the Law Against Discrimination, etc.,
where they have held, and upheld, for years that I am an incompetent person lacking intellectual
cognitive abilities, need certain medications to be able to gain reality, etc., but then, as an
involuntarily civilly committed person, fail/refuse to APPOINT A ‘GUARDIAN,’ etc., to assist
me in properly and fairly accessing the court[sj.” Id.
Aruanno also seeks to file in jörma pauperis a “Petition for Writ of Mandamus” against
the State of New Jersey in Aruanno v. State of New Jersey, Civil Number 14-5099 (WJM).
Aruanno states in this pleading that he is submitting the petition for mandamus “in reply to the
letter Ijust received from the Clerk of the U.S. Court of Appeals dated 8/10/14 which was in reply
to my request about the outcome of my Petition for Rehearing En Banc” (Civ. No. 14-5099
(WJM),ECFNo. I at2.)
Aruanno seeks to proceed in forma pauperis in these three non-habeas civil actions.
Instead of granting in förma pauperis status, this Court issued an Order to Show Cause directing
Aruanno to show cause why the Court should not deny his requests to proceed informapauperis
because he has abused the privilege of proceeding in forma pauperis and his allegations do not
show that he is in imminent danger of serious physical injury.
IL
DISCUSSION
The federal informapauperis statute, enacted in 1892 and codified as 28 U.S.C.
§ 1915, “is
designed to ensure that indigent litigants have meaningful access to the federal courts.” Neitzke v.
Williams, 490 U.S. 319, 324 (1989). This Court has the discretionary authority to deny informa
pauper/s status to persons who have abused the privilege. See, e.g., In re McDonald, 489 U.S. 180
(1989) (denying injörma pauperis status to non-prisoner seeking to file a petition for a writ of habeas
4
corpus in the Supreme Court, where the person had pursued 73 prior filings); Zatko
V.
California, 502
U.S. 16(1991) (denying applications to proceed in jörma pauper/s to file a habeas corpus petition to
one petitioner who filed 73 petitions and to another petitioner who filed 45 petitions); Martin v. District
of Columbia Court of Appeals, 506 U.S. 1 (1992) (denying in jörma pauperis application of “a
notorious abuser of this Court’s certiorari process,” who had filed 11 petitions which were frivolous,
with the arguable exception of one); Butler v. Department ofJustice, 492 F.3d 440, 444-45 (D.C. Cir.
2007) (denying informa pauper/s application of a prisoner who did not have three strikes, but who had
on at least five prior occasions brought appeals that were dismissed for failure to prosecute). This
Court’s discretionary authority to deny in jörma pauper/s status to persons who have abused the
privilege derives from
§ 1915(a) itself, see 28 U.S.C. § 1915(a) (“any court of the United States may
authorize the commencement
.
.
.
of any suit
.
.
.
without prepayment of fees or security therefor”)
(emphasis added), and federal courts’ “inherent power and constitutional obligation to protect their
jurisdiction from conduct which impairs their ability to carry out Article 111 functions.”
In re
McDonald, 489 U.S. at 185 n.8 (quoting In re Martin-Trigona, 737 F.2d 1254, 1261 (2d Cir. 1984)).
As the Supreme Court explained,
[P]aupers filing pro se petitions are not subject to the financial considerations filing
fees and attorney’s fees that deter other litigants from filing frivolous petitions.
Every paper filed with the Clerk of this Court, no matter how repetitious or frivolous,
requires some portion of the institution’s limited resources. A part of the Court’s
responsibility is to see that these resources are allocated in a way that promotes the
interests of justice. The continual processing of petitioner’s frivolous requests
does not promote that end.
—
—
.
.
In re McDonald. 489 U.S. at 184.
In 1996 Congress curtailed the ability of prisoners to take advantage of the privilege of filing
informa pauperis by enacting a “three strikes rule,” which provides: “In no event shall a prisoner
bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner
has, on 3 or more prior occasions. while incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger
of serious physical injury.” 28 U.S.C.
§
I5(g).
19 Although Aruanno is not a prisoner, the adoption
2
of a judicial limitation in Aruanno’s cases mirroring the PLRA’s “three strikes” provision applicable
to prisoners and including its “imminent danger” exception is necessary to create a uniform policy
denying the privilege of proceeding inJörrnapauperis to abusive litigants and to allocate this Court’s
resources in a way that promotes the interest of justice. See Mitchell v. Federal Bureau of Prisons,
587 F.3d 415 (D.C. Cir. 2010) (crafting a discretionary rule mirroring
§ 1915(g)’s
imminent danger
exception to deny inforinapaziperis application brought by a prisoner who had only two “strikes” but
had 63 cases that were dismissed for reasons other than failure to state a claim); Douris v. Middletown
ioiinship, 293 F.Appx 130 (3d Cir. 2008) (affirming discretionary denial of non-prisoner’s inforrni
pauperis application based on Douris’s eight prior unsuccessful civil actions); cf Kansas v. Colorado,
556 U.S. 98. 108 (2009) (crafting a discretionary rule regarding expert fees by mirroring a statutory
rule applicable in similar cases because “we see no good reason why the rule regarding the recovery
of expert witness fees should differ markedly depending on whether a case is originally brought in a
district court or in this Court [andi the best approach is to have a uniform rule that applies in all federal
cases.”).
2
The PLRA defines “prisoner” as ‘any person incarcerated or detained in any facility who is
accused of, convicted of sentenced for, or adjudicated delinquent for, violations of criminal
law
or the terms and conditions of parole, probation, pre-trial release, or diversionary program” 28
U.S.C. § 1915(h). Aruanno is not a ‘prisoner” under this definition because he is detained
pursuant to New Jersey’s Sexually Violent Predator Act. See Tavares v. Attorney General USA,
211 F. App’x 127, 128 n.2 (3d Cir. 2007) (noting that a detainee who is not being held on criminal
charges is not a “prisoner” under 28 U.S.C. § 191 5(h)).
6
Because this Court has dismissed many more than three of Aruanno’s civil rights complaints
in which he was granted in frrma pauper/s status and his allegations do not show that he is in imminent
danger of serious physical injury, this Court directed Aruanno to show cause why this Court should
not deny his requests to proceed in förma pauper/s because he has abused the privilege of proceeding
injàrnia pauper/s. In his response to the Order to Show Cause, Aruanno argues that this Court should
grant his in jàrrna pauper/s applications because: (a) he is in imminent danger; (b) this Court should
appoint a guardian; (c) it would be unfair to deny in forma pauper/s status in habeas corpus cases
challenging his civil commitment; and (d) his prior cases were improperly dismissed.
A.
Imminent Danger
First, referring to Aruanno v. Davis. Civil Number 14-34 13, Aruanno asserts that he is in
imminent danger. “Imminent dangers are those dangers which are about to occur at any moment
or are impending.”
Abdul—Akbar v. McKelvie. 239 F.3d 307. 315 (3d Cir. 2001) (internal
quotation marks omitted). A prisoner’s allegation that he faced imminent danger sometime in the
past is therefore “an insufficient basis to allow him to proceed in forma pauperis.”
Ball v.
Farniglio, 726 F.3d 448, 467 (3d Cir. 2013) (quoting Medberry v. Butler, 185 F.3d 1189, 1193
(11th Cir.1999)) (internal quotation marks omitted). The danger must also be imminent at the
time the complaint or appeal is filed. See Abdul—Akbar, 239 F.3d at 3 12 (“[A] prisoner may
invoke the ‘imminent danger’ exception only to seek relief from a danger which is ‘imminent’ at
the time the complaint is filed.”). Practices that “may prove detrimental
...
over time,” such as
poor care for arthritis, also “do not represent imminent dangers,” as the harm is not “about to occur
at any moment.”
Ball, 726 F.3d at 468 (quoting Abdul—Akbar, 239 F.3d at 315) (internal
quotation marks omitted). Finally, even if an alleged harm may in fact be “impending,” it does
7
not satisfy the exception if it does not threaten to cause “serious physical injury.” 28 U.S.C.
§
1915(g).
In his response to the Order to Show cause Aruanno States: “[C]learly in case No. 143413 to permit JA, and others here, to be victimized by sexual predators which could be escalated
which could include a fight to prevent such an incident which could also lead to a death during
this”
(civ. No. 14-3413, ECF No. 7 at 3.) As explained above, inAruanno v. Davis, Aruanno
alleges that “certain staff refuse to close our cell doors as needed[, which] permits other
residents/patients to watch us using the toilet [which] is right in the doorway where some
masturbate, etc.” (Civ. No. 14-3413, ECF No. I at 6). The allegations in this complaint do not
show that Aruanno is exposed to unsafe or life-threatening conditions. Rather, to the extent he
asserts danger at all, his assertions are vague and too speculative to be considered imminent. See
Ball, 726 F.3d at 468 (“[C]ourts
...
deny leave to proceed IFP when a prisoner’s claims of imminent
danger are conclusory or ridiculous.”) (citation omitted); White v. Colorado, 157 F.3d 1226, 1232
(10th Cir.1998) (concluding that the defendant “has failed to raise a credible allegation that he is
in imminent danger of serious physical harm, and, therefore, he does not come under the exception
to
§
191 5(g)”). Because a person claiming that he is in imminent danger of serious physical harm
must “make specific [and] credible allegations to that effect,” Ball, 726 F.3d at 470 (quoting Childs
v. Miller, 713 F.3d 1262, 1267 (10th Cir.2013)) (alteration in original) (internal quotation marks
omitted), and Aruanno has failed to do so in any of his pleadings, the imminent danger exception
does not apply.
8
B.
Request to Appoint a Guardian
Aruanno maintains that this Court should appoint a guardian. He asserts that “in reality
the state[’]s position has always been that JA is so out of touch with reality that the only possible
remedy would be psychotropic medications combined with a steady regime of therapy.” (Civ.
No. 14-3413, ECF No. 7 at 4.) He contends that the Court should “comply with the ADA.
.
.
and
appoint a GUARDIAN here in the interest of justice.” (Civ. No. 14-3413, ECF No. 7 at 5)
(emphasis in original).
On several occasions, this Court has either sua sponte considered the appointment of a
guardian ad 111cm for Aruanno or denied his request to appoint a guardian under Powell v. Symons,
680 F.3d 301, 307 (3d Cir. 2012). See, e.g.; Aruanno v. New Jersey, Civ. No. 13-583 1 (WJM)
order (D.N.J. June 5, 2014) (declining sua sponte to appoint a guardian ad litem); Aruanno v.
Velez, Civil No. 12-0152 (WJM), 2012 WL 1232415 (D.N.J. Apr. 12, 2012) (declining to appoint
a guardian, pursuant to Fed. R. Civ. P. 17(c), for Aruanno because there was no verifiable evidence
indicating that Aruanno was legally incompetent), aff’d 500 F.App’x 126 (3d Cir. 2012).
Recently, the Third Circuit rejected Aruanno’s contention that the Americans with Disabilities Act
requires this Court to appoint a guardian or an attorney for him. See Aruanno v. Caldwell, C.A.
15-2173, 2016 WL 122966 at *1 n.2 (3d Cir. Jan. 12, 2016). As Aruanno’s filings and litigation
history demonstrate his ability to present his cases, the issue involved here is not difficult, and no
expert testimony is necessary, this Court will deny Aruanno’s request to appoint a guardian.
C.
Unfair to Apply in Habeas Corpus Cases
Next, Aruanno contends that “it would really be a miscarriage of justice to then deny JA
his right to appeal the yearly reviews here, in HABEAS CORPUS fashion in the District Court
9
which is unrelated to the standard civil rights violation lawsuit.” (Civ. No. 14-3413, ECF No. 7
at 5) (emphasis in original). The problem with this argument is that none of the cases in which
Aruanno is seeking to proceed in formapauperis is a habeas corpus action. Moreover, Aruanno
was granted in forma pau’peris status in a habeas corpus petition filed after this Court issued the
Order to Show Cause, see Aruanno v. Yates, Civ. No. 15-7405 (JLL) order (D.N.J, Oct. 28, 201 5),
and nothing in this Court’s Opinion indicates that Aruanno has abused the privilege of proceeding
in forma pauperis in habeas corpus cases or that it will prohibit him from proceeding in forma
pauperis in a habeas corpus case.
D.
Prior Improper Dismissals
Finally, Aruanno complains that this Court should not use his litigation history to support
the conclusion that he has abused the privilege of proceeding in forma pauperis because those
dismissals were improper and he wouldn’t have to keep bringing new cases if the Court had granted
him relief instead of dismissing his prior cases. He asserts that “the logic is circular and thus
flawed to say that because the court[sj failed/refused to correct it the first time JA should pay this
time.” (Civ. No. 14-3413, ECF No. 7 at 7.)
This Court has dismissed many more than three of Aruanno’s civil rights complaints on the
ground that the complaint failed to state a claim upon which relief may be granted. The Third Circuit
has affirmed the vast majority of these dismissals.
3
For example, Aruanno raised the identical
See, e.g., Aruanno v. Johnson, C.A. No. 13-3695, 2014 WL 2624793 (3d Cir. June 13, 2014);
Aruanno v. John/Jane Does 1-10, 536 F.App’x 167 (3d Cir. 2013); Aruanno v. Green, 527 F.App’x
145 (3d Cir. 2013); Aruanno v. Commissioner of Social Security, 517 F.App’x 72 (3d Cir. 2013);
Aruanno v. Johnson, 501 F.App’x 151 (3d Cir. 2012); Aruanno v. Velez, 500 F.App’x 126 (3d Cir.
2012); Aruanno v. Allen, 498 F.App’x 160 (3d Cir. 2012); Aruanno v. Cavanaugh, 460 F.App’x 82
(3d Cir. 2012); Aruanno v. Sweeney, 449 F.App’x 118 (3d Cir. 2011); Aruanno v. Smith, 445 F.App’x
494 (3d Cir. 2011); Aruanno v. Walsh, 443 F.App’x 681 (3d Cir. 2011); Aruanno v. Fishman, 443
F.App’x 679 (3d Cir. 2011); Aruanno v. Johnson, 442 F.App’x 636 (3d Cir. 2011).
10
unmeritorious claim in four civil rights complaints. In each case, he claimed that officials at the
Special Treatment Unit denied him ajob in retaliation for his exercising his right to remain silent; this
Court dismissed each complaint and the Third Circuit affirmed each dismissal. See Aruanno v.
John/Jane Does 1-10, 536 F.App’x 167 (3d Cir. 2013) (noting that ‘[t]his is Aruanno’s fourth attempt
to raise such [retaliation] claims before the Court”). In addition, Aruanno has brought meritless
complaints, while proceeding In jbnna pauperis, against the Clerk of this Court (claiming that the
Clerk refused to file two complaints, which Aruanno said he had mailed to the Clerk’s Office for
filing), against the United States Attorney for the District ofNew Jersey and the Attorney General of
the United States (claiming that these officials violated his constitutional rights by failing to pursue
criminal charges against officials at the Special Treatment Unit), and against United States District
Judge Dennis M. Cavanaugh (retired) (claiming that Judge Cavanaugh’s rulings in civil rights actions
violated his constitutional rights). This Court dismissed each of these complaints and the Third
Circuit affirmed the dismissals. See Aruanno v. Cavanaugh. 460 F.App’x 82 (3d Cir. 2012); Aruanno
v. Walsh, 443 F.App’x 681 (3d Cir. 2011); Aruanno v. Fishman, 443 F.App’x 679 (3d Cir. 2011).
Moreover, in one action in which Aruanno was proceeding inforinapauperis, he inaccurately claimed
that the failure ofofficials at the Special Treatment Unit to transport him to a state court hearing on his
post-conviction reliefpetition caused the dismissal ofthe case, when the electronically available record
ofthat proceeding established that it was dismissed on the merits. See Aruanno v. Johnson, CA. No.
13-3695, 2014 WL 2624793 at 1 (3d Cir. June 13,2014) (“Aruanno claimed that the defendants had
failed to transport him to a hearing in state court. However, as the District Court pointed out, the state
court denied Aruanno’s claims on the merits, for reasons that had nothing to do with Aruanno’s
nonattendance.”) (citing State v. Aruanno, Cr. A. No.97-01-0016,2012 WL 1948670 (N.J. Super. Ct.
App. Div. May 31,2012)).
11
___________________,2016
Aruanno has provided no support for his contention that the dismissal of his prior civil
rights cases was improper. Accordingly, this argument lacks merit.
III.
CONCLUSION
For the reasons set forth in this Opinion, this Court denies Aruanno’s applications to
proceed in forma pauperis in Aruanno v. Davis, Civil Number 14-3413 (WJM), Aruanno v. Yates,
Civil Number 14-5100 (WJM), and Aruanno v. State of New Jersey, Civil Number 14-5099
(WJM), without prejudice to his prepayment of the $400 filing fee in each case, provided he does
so within 30 days of the date of the Order accompanying this Opinion.
L I
DATED:
12
MARTINI, U.S.D.J.
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