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Anthony Moore v. Leann K. Bertsch

December 20, 2010

ANTHONY MOORE, PLAINTIFF,
v.
LEANN K. BERTSCH, ET. AL.,
DEFENDANTS.



The opinion of the court was delivered by: Charles S. Miller, Jr. United States Magistrate Judge

REPORT AND RECOMMENDATION

I. BACKGROUND

Anthony Moore ("Moore") is an inmate at the North Dakota State Penitentiary ("NDSP"). On December 2, 2010, he submitted a PLRA packet containing a proposed complaint and an application to proceed in forma pauperis.

Moore is a frequent pro se prisoner litigant whose filings are now limited by the "three strikes" provision of 28 U.S.C. § 1915(g), as well an order issued in Moore v. Cass County Jail Medical Department, Case No. 3:09-cv-113, by Senior District Judge Charles Kornmann of the District of South Dakota, who sat in that case by assignment because Moore had named all of the North Dakota magistrate and district judges as defendants. See also Moore v. Bertsch, No. 1:10-cv-00053, 2010 WL 2998779, **2-3 (D.N.D. July 27, 2010) (noting the applicability of the "three strikes" provision and discussing Judge Kornmann's order). Judge Kornmann's order in Moore v. Cass County Jail Medical instructed the Clerk's offices in both the Districts of North Dakota and South Dakota not to file any additional complaints from Moore "unless the pleadings are signed, pursuant to Federal Rules of Civil Procedure 11, by an attorney admitted to the court, or unless a federal judicial officer has authorized in writing the filing of such pleadings in advance." Moore v. Cass County Jail Medical Department, Case No. 3:09-cv-113 (D.N.D. Order dated January 27, 2010) (Doc. No. 7); see id. Moore appealed Judge Kornmann's order and the Eighth Circuit dismissed the appeal for non-payment of the filing fee after refusing to allow him to proceed in forma pauperis. Moore v. Cass County Jail Medical Department, No. 10-1924 (8th Cir. Order dated May 3, 2010, and Judgment dated July 16, 2010).

In a recent action, Moore attempted to evade Judge Kornman's order by striking over the words "North Dakota" in the printed caption of his complaint, inserting the word "Missouri" (apparently intending to file in the non-existent "District of Missouri"), and then erroneously filing the action in the Southern District of Illinois. Moore v. Bertsch, 2010 WL 2998779 at *3. The action was transferred to North Dakota and assigned to District Judge Viken of the District of South Dakota because Moore had again named as defendants all of the magistrate and district judges in the District of North Dakota, Judge Kornmann, and all of the Eighth Circuit judges. Judge Viken dismissed the complaint and ordered Moore to comply with Judge Kornmann's order for any future lawsuits filed in the Districts of North Dakota and South Dakota. Id. at *4.

Since Judge Viken's order of July 27, 2010, Moore has tendered three more PLRA packets with proposed complaints, including the one now before the court. The proposed complaint in the first packet contained a litany of Moore' past allegations, including that he was suffering excruciating pain and was in imminent danger of serious physical injury, as well as a new allegation that he had been subjected to a "mock" colonoscopy. But, unlike other recent filings, Moore did not seek to name any of the judges of this district as defendants. Hence, the court screened the complaint and directed that it not be filed. Moore v. Bertsch, No. 1:10-cv-000074, Doc Nos. 4 & 7. Moore then appealed. On December 1, 2010, the Eighth Circuit issued an order denying Moore's request to proceed in forma pauperis and stated that the appeal would be dismissed if Moore did not pay the filing fee within fifteen days. Moore v. Bertsch, No. 10-3315 (8th Cir. Order dated Dec. 1, 2010).

Moore's proposed complaint in the next PLRA packet reiterated many of the same allegations, but this time sought to name as defendants all of the sitting district judges in this district and Senior Judge Kornmann from the District of South Dakota, but not any of the magistrate judges. Notwithstanding that all of the district judges were named as defendants, this court reviewed the complaint and ordered that it not be filed, invoking the "rule of necessity." Moore v. Bertsch, No. 1:10-cv-082, Doc. No. 3 (D.N.D. Nov. 24, 2010). Moore filed an appeal, which is still pending.

In the proposed complaint now before the court, Moore pleads the following: C He alleges that he is now confined to his cell for a total of 60 days as result of two recent disciplinary actions that imposed a penalty of 30-day cell confinement each. He complains that his health is suffering from being confined to his cell, but does not make any claim that the imposition of the disciplinary action was in violation of his rights or was otherwise unwarranted.

C He claims that he has been in administrative segregation since September 26, 2006, and that he is in "severe pain and suffering" as a result of being overly inactive, including that he cannot get out of bed without "enduring excruciating pain and suffering" throughout his entire body. He also claims diminishment in mental capacity. He claims he is confined to his cell 23 hours a day, although it is not clear whether he is claiming that this is a result of his most recent disciplinary actions or his placement in administrative segregation generally.

C He claims that prison officials have refused to process his requests for a transfer to the custody of some other state prison system or to the Federal Bureau of Prisons. He alleges that state prison officials have wrongfully taken the position that a transfer will not be considered until his conduct improves.

C He once again names as defendants all of the district judges of this district, along with Senior Judge Kornmann of the District of South Dakota, but this time includes all of the magistrate judges of this district as well. He alleges that all of the named judges have befriended prison officials and are not impartial, but does not claim that they have engaged in substantive acts violating his constitutional rights.

In his prayer for relief, Moore asks that the court invalidate the sanctions restricting him to his cell and order that he be released from administrative segregation or transferred to the custody of another jurisdiction outside the immediate "five state area."

As discussed in more detail below, Moore has filed prior actions challenging his confinement in administrative segregation and alleging deteriorating health as result, all of which have been found to be without merit. However, in order to give Moore an opportunity to explain why circumstances may have changed, the undersigned scheduled a hearing on Moore's request to proceed in forma pauperis for December 10, ...


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