PRALL v. BOCCHINI et al
Filing
28
OPINION filed. Signed by Judge Freda L. Wolfson on 8/19/2011. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TORMU E. PRALL,
Petitioner,
v.
JOSEPH L. BOCCHINI, JR.,
et al.,
Respondents.
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Civil No.: 10-1228 (FLW)
O P I N I O N
APPEARANCES:
TORMU E. PRALL, Petitioner Pro Se
#531669
Mercer County Detention Center
P.O. Box 8068
Trenton, New Jersey 08650
WOLFSON, District Judge
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, 2011.1
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.
1
On February 24, 2011, Prall also filed a motion for a
preliminary and permanent injunction (Docket entry no. 18), which
this Court will address in a separate Opinion.
I.
BACKGROUND
On or about March 8, 2010, Prall filed a Complaint against
numerous defendants,2 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.
Docket entry no. 1).
(See Complaint at ¶¶ 12-13,
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.
this time.
Prall was under close/camera watch during
The Complaint also states that when Prall complained
about the dirty conditions of his cell, certain correctional
officers slapped, joked, punched, kicked, clubbed , and
2
The Complaint names the following defendants: Joseph L.
Bocchini, Jr., Mercer County Prosecutor; Arthur R. Sypek, Jr.,
Mercer County Counsel; Charles Ellis, Warden at Mercer County
Correction Center (“MCCC”); Phyllis Oliver, Head of Internal
Affairs at MCCC; Michelle R. Ricci, Administrator at NJSP; Brian
M. Hughes; Kelvin S. Ganges; Andrew A. Mair; Sarah G. Crowley; J.
McCall; E. Williams; T. Wilkie; Nurse Pete S.; Dr. Robert Roth;
Dr. Gooriah; Social Worker Lydia; William J. Moliens; Chris
Holmes; Jimmy Barnes; James Drumm; Ron Wanger; James Keil; Lt.
Alaimo; Crystal Raupp; Ms. Ishmael; Shirley Stephens; Sgt.
Newsom; Ortiz; John Does 1-25; John Moes 1-10; and John Roes 199. (Complaint, Caption and ¶¶ 3-8).
2
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.
On July 1, 2010, Prall filed an amended Complaint.
entry no. 5).
(Id.).
(Docket
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
3
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).
4
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 subject to screening under 28 U.S.C. § 1915(e). See
Gibbs, 160 F.3d at 967. Prall’s motions to expedite this
appeal and for other relief are denied.
(April 6, 2011 Opinion at pp. 4-5, Docket entry no. 21).
Thereafter, Prall filed a motion for recusal on May 2, 2011,
as well as a renewed motion for a preliminary injunction.3
(Docket entry no. 22).
3
As noted above, Prall’s request for injunctive relief
will be considered separately from the motions at issue here.
5
II.
A.
ANALYSIS
Motion for Vacatur
Prall’s motion for vacatur (docket entry no. 17) will be
denied as moot.
As set forth above, the Third Circuit vacated
this Court’s August 16, 2010 Order and remanded this matter for
screening under 28 U.S.C. § 1915.
Accordingly, Prall has
obtained the relief he seeks with his vacatur motion, and the
motion is now rendered moot.
B.
Motion for Recusal
Title 28 U.S.C. § 455(a) provides, “[a]ny justice, judge or
magistrate judge of the United States shall disqualify himself in
any proceeding in which his impartiality might reasonably be
questioned.”
The other applicable recusal statute, 28 U.S.C. §
144, provides “[w]henever a party to any proceeding in a district
court makes and files a timely and sufficient affidavit that the
judge before whom the matter is pending has a personal bias or
prejudice either against him or in favor of any adverse party,
such judge shall proceed no further therein.”4
4
Under 28 U.S.C. §
Here, Prall fails to explicitly move under either
§ 455(a) or § 144. However, the Court is satisfied that the
motion can be analyzed by this Court under both § 455(a) and
§ 144. If a recusal motion is made pursuant to § 455, the
questioned judge is entitled to rule upon the motion. If the
motion is made pursuant to § 144, another judge must rule on the
recusal motion so long as the supporting affidavit meets the
“sufficiency test.” In re Kensington Int’l Ltd., 353 F.3d 211,
224 (3d. Cir. 2003). The Court is satisfied that the supporting
affidavit does not meet the “sufficiency test,” and, hence, may
be ruled upon by this Court.
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455(a), it is not the case that a judge should recuse himself
where, in his opinion, sitting would be inappropriate.
The
correct inquiry is whether the judge’s impartiality has been
reasonably questioned.
In re Prudential Ins. Co. Of Am. Sales
Practice Litig. Agent Actions (Krell), 148 F.3d 283, 343 (3d Cir.
1998), cert. denied 525 U.S. 1114 (1999).
The alleged prejudice
usually obtains from an extrajudicial source; a judge’s prior
adverse ruling alone is not sufficient cause for recusal.
“[J]udicial rulings alone almost never constitute a valid basis
for a bias or partiality motion. ... [They] can only in the
rarest circumstances evidence the degree of favoritism or
antagonism required ... when no extrajudicial source is involved.
Almost invariably, they are proper grounds for appeal, not
recusal.”
In re Levi, 314 Fed. Appx. 418, 419 (3d Cir.
2008)(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).
An alternative means of recusal is governed under 28 U.S.C. §
144, which enables recusal upon timely submission of an affidavit
and supporting certificate of good faith.
Here, Prall has failed to submit a certified or notarized
affidavit.
Rather, he provides only a motion alleging grounds
for recusal based on unsupported, conclusory statements.5
5
For
The Court is aware of judicial decisions in the Third
Circuit that have questioned the validity of disqualification
motions submitted in response to adverse rulings. In re
Kensington Int’l Ltd., 368 F.3d 289, 314-315 (3d Cir.
2004)(positing that when a party “is aware of the grounds
supporting recusal, but fails to act until the judge issues an
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instance, he relies on his motions for vacatur that he filed in
his earlier actions before this Court, Prall v. Ellis, Civil No.
08-6050 (FLW), Prall v. City of Boston, Civil No. 09-272 (FLW),
Prall v. East Windsor Municipal Court, Civil No. 09-2603 (FLW),
Prall v. Assignment Judge, Civil No. 2608 (FLW), and Prall v.
Bucks County Courthouse, Civil No. 09-3088 (FLW).
In those
motions, Prall alleged that this Court (1) rendered a biased
opinion and acted as “prosecutor” by advancing the private
interests of the U.S. Marshals and local police, (2) “attempted
to improperly influence other judges to treat petitioner in a
demonstrably egregious and hostile manner and to dislike the
petitioner personally,” (3) “misused her appointment power to
show favoritism” to the U.S. Marshals, (4) “vilified petitioner’s
character, credibility, reputation and record,” and (5) failed to
demonstrate “integrity, impartiality, propriety and
independence.”
(See Petitioner’s Motion to Vacate, docket entry
no 4-1 in Civil No. 09-2603 (FLW), to which the instant recusal
motion refers, as well as his other vacatur motions listed
above).
Prall provided no basis for these argumentative and
conclusory statements.
adverse ruling, the recusal [typically] is not timely.”) Given
such authority, the Court would find that Prall’s recusal motion
is not timely. Nevertheless, the timeliness of Prall’s motion is
of little significance, as the Court holds that Prall’s motion is
wholly conclusory and insufficient to convince a reasonable
person of the Court’s alleged bias.
8
Likewise, Prall made similar allegations in a referenced
Complaint of Judicial Misconduct and in his appeal of this matter
before the Third Circuit.
Again, no substantiation for his
argumentative and conclusory statements were provided.
The Court of Appeals for the Third Circuit has held that the
challenged judge must determine only the sufficiency of the
affidavit, not the truth of the assertions.
F.2d 415, 417 (3d Cir. 1976).
Mims v. Shapp, 541
The Third Circuit also has held
that the allegations in a § 144 affidavit must convince a
reasonable person of the Judge’s partiality.
United States v.
Dansker, 537 F.2d 40, 53 (3d Cir. 1976), cert. denied 429 U.S.
1038 (1977).
Moreover, recusal is not required in this instance simply
because Prall has initiated litigation against this Court (noting
Prall’s judicial ethics complaint).
“The mere filing of a
complaint of judicial misconduct is not grounds for recusal.”
Ginsberg v. Evergreen Sec., Ltd., 570 F.3d 1257, 1265 (11th Cir.
2009).
“It would be detrimental to the judicial system if a
judge had to disqualify himself anytime someone filed a complaint
about his conduct.
A party would only have to file a complaint
to get a different judge.”
Id.
See also Callihan v. Eastern
Kentucky Production Credit Ass’n, 895 F.2d 1412 (6th Cir. 1990);
United States v. Studley, 783 F.2d 934, 939-40 (9th Cir. 1986)(a
judge is not disqualified by a litigant’s suit or threatened
9
suit, or by a litigant’s “intemperate and scurrilous attacks”);
In re Martin-Trigona, 573 F. Supp. 1237, 1243 (D. Conn. 1983).
The Court is not convinced that recusal is appropriate under
either 28 U.S.C. § 455(a) or 28 U.S.C. § 144.
The Court declines
to recuse itself under § 455, as the Court is not convinced that
its impartiality has been reasonably questioned.
The Court is
satisfied that a reasonable person would not be convinced of the
Court’s alleged bias after reading Prall’s moving papers. Prall’s
motion is largely conclusory and devoid of factual allegations
that would render recusal appropriate.
Liteky, 510 U.S. at 555.
Similarly, removal under 28 U.S.C. § 144 is not appropriate.
Section 144 requires an affidavit of fact that must convince a
reasonable person of the Judge’s partiality.
at 53.
Dansker, 537 F.2d
Here, Prall’s motion (based on other unsubstantiated
motions made in earlier actions) simply concludes that judicial
misconduct, bias and collaboration has occurred, without
including assertions of fact in support of these conclusions.
conclusory affidavit is not sufficient for recusal.
A
Smith v.
Vidonish, 210 Fed. Appx. 152, 155 (3d Cir. 2006)(holding that
conclusory statements in a recusal affidavit need not be
credited).
Thus, Prall’s motion is nothing more than a litany of
vituperative and conclusory allegations of this Court’s alleged
bias, incompetence, and collaboration without one iota of fact to
support the bald accusations.
It is well-established that a
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court need not credit conclusory allegations or legal
conclusions.
Morse v. Lower Merion School District, 132 F.3d
902, 906 n. 8 (3d Cir.1997).
See also Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949-50 (2009).
It is abundantly clear that Prall
has made these unwarranted and baseless assumptions based on the
fact that he was unsuccessful in bringing prior habeas petitions.
Moreover, it is plain that the Third Circuit did not question
this Court’s conduct when it remanded this matter for screening
of the Complaint under 28 U.S.C. § 1915(e).
Rather, the Court of
Appeals appropriately determined that Prall’s amended Complaint
showed “a continuing danger of serious physical injury that was
imminent at the time he filed his complaint,” which this Court
had mistakenly overlooked.
A party’s disagreement with a
Court’s ruling is not a basis for recusal; otherwise any
unsuccessful litigant would be able to disqualify the Judge who
rendered the unfavorable ruling.
In re TMI Litig., 193 F.3d 613,
728 (3d Cir. 1999), cert. denied 530 U.S. 1225 (2000).
Accordingly, as Prall has not met the requirements of 28
U.S.C. § 455(a) or 28 U.S.C. § 144, his motion for recusal must
be denied.
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III. CONCLUSION
Therefore, for the reasons expressed above, Prall’s motion
for vacatur (docket entry no. 17) will be denied as moot, and his
motion for recusal (docket entry no. 22) will be denied for lack
of merit.
An appropriate Order follows.
s/Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge
Dated: August 19, 2011
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