The opinion of the court was delivered by: Simandle, District Judge.
Plaintiff Keith Russell Judd ("Judd"), is a federal prisoner
currently confined at F.C.I. Fort Dix, New Jersey. On September
5, 2001, Judd submitted a civil rights complaint to the Clerk of
this Court, and an application seeking in forma pauperis
status pursuant to 28 U.S.C. § 1915. After an examination of its
records, the Court determined that, while he was incarcerated,
Judd had at least three prior civil actions dismissed as
frivolous or for failure to state a claim,*fn1 and Judd
therefore could not be granted in forma pauperis status
pursuant to 28 U.S.C. § 1915(g). The "three strikes" provision
of Section 1915(g) states:
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.
On October 17, 2001, Judd appealed the denial of in forma
pauperis status to the Court of Appeals for the Third Circuit.
On November 5, 2001, he also submitted an amended complaint, a
motion for bail pending appeal, and a motion for in forma
pauperis status on appeal. By Order entered November 15, 2001,
the Court denied Judd's motions for bail and for in forma
pauperis status, and struck his amended complaint. (Docket item
[8-1], Order entered November 15, 2001). Judd appealed this
Order to the Third Circuit on November 26, 2001.
Judd's first appeal of the Order denying in forma pauperis
status was dismissed on January 3, 2002, for failure to timely
prosecute. See Judd v. Furgeson, App. No. 01-3898 (3d Cir.
January 3, 2002). On March 14, 2002, Judd's second appeal also
was dismissed for failure to timely prosecute. See Judd v.
Furgeson, App. No. 01-4241 (3d Cir. Mar. 14, 2002).
Judd submitted to this Court an Amended Motion to Proceed In
Forma Pauperis on January 7, 2002, and a Motion for Relief from
Judgment pursuant to Fed.R.Civ.P. 60 on January 18, 2002. He
also recently filed a second motion for relief from judgment on
or about April 11, 2002.*fn3 A discussion of these motions
A. Amended Motion to Proceed In Forma Pauperis
The Prison Litigation Reform Act ("PLRA"), including
28 U.S.C. § 1915(g), supra, was enacted on April 26, 1996. "This
provision of the PLRA, commonly known as the `three strikes'
provision, requires frequent filer prisoners to prepay the
entire filing fee before federal courts may consider their
lawsuits and appeals." Rivera v. Allin, 144 F.3d 719, 723
(11th Cir. 1998) (citation and internal quotation marks
All of Mr. Judd's dismissals for frivolousness occurred after
passage of the PLRA. Even if some had occurred prior to the
PLRA, the "three strikes" provision has been held to extend to
dismissals for frivolousness prior to the passage of the PLRA.
See Keener v. Pennsylvania Board of Probation and Parole,
128 F.3d 143, 144-45 (3d Cir. 1997) (holding that dismissals based
on frivolousness before 1996 "are included among the three that
establish the threshold for requiring a prisoner to pay the full
docket fees unless the prisoner can show s/he is `under imminent
danger of serious physical injury'") (quoting
28 U.S.C. § 1915(g)). Moreover, the Third Circuit requires a prisoner,
subject to the three strikes rule, to allege imminent danger of
physical injury at the time the complaint is filed; past
physical danger is insufficient. Abdul-Akbar v. McKelvie,
239 F.3d 307 (3d Cir. 2001) (en banc).*fn4
Based on the numerous strikes accrued by Judd, as illustrated in
this Opinion in note 1, supra, it is clear that Judd is the
plaintiff envisioned by the Third Circuit when it stated, "In
stark terms, [Congress] declared that IFP privilege will not be
available to prisoners who have, on three occasions, abused the
system by filing frivolous or malicious law suits or appeals, no
matter how meritorious subsequent claims may be." Id. at 314.
Nevertheless, without regard to the overwhelming number of
frivolous actions he has filed with indigent status in the
federal courts in recent years, and the clear edict in
28 U.S.C. § 1915(g), Judd makes yet another application, in the form of an
amended motion, to proceed in forma pauperis. Further, Judd
makes his amended motion to proceed as an indigent without any
allegations whatsoever to show imminent danger of serious
physical injury, as required in Abdul-Akbar. In fact, Judd
makes no attempt to overcome the strictures of the three strikes
provision. Instead, he refers to other jurisdictions which have
granted him in forma pauperis status. He also cites cases
predating the enactment of the PLRA for the proposition ...