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JUDD v. FURGESON

United States District Court, District of New Jersey, D.


May 7, 2002

KEITH RUSSELL JUDD, PLAINTIFF,
V.
ROYAL FURGESON, U.S. DISTRICT JUDGE, WESTERN DISTRICT OF TEXAS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Simandle, District Judge.

OPINION

This matter is before the Court on plaintiffs Amended Motion for Leave to Proceed In Forma Pauperis and his Motion for Relief from Judgment pursuant to Fed.R.Civ.P. 60. Plaintiff's motion requesting leave to proceed as an indigent raises the recurring issue of enforcement of the "three strikes" provision against frequent filer inmates under 28 U.S.C. § 1915(g). In this instance, the "three strikes" rule is applied against a plaintiff who has filed over 200 civil actions in the federal courts nationwide, many of which have been dismissed as frivolous, and who continues to seek to proceed in forma pauperis despite this Court's Order dated October 2, 2001, denying indigent status pursuant to 28 U.S.C. § 1915(g). Plaintiff makes his amended application for in forma pauperis status in the context of a motion for relief from the October 2, 2001 Order under Rule 60(b), Fed.R.Civ.P. For the reasons set forth below, Plaintiffs motions will be denied.

I. BACKGROUND

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.

Because there was no allegation in the complaint suggesting "imminent danger of serious physical injury," the Court entered an Order denying in forma pauper is status and granting Judd 30 days to submit the $150.00 filing fee.*fn2 (Docket item [1-1], Order entered October 2, 2001). Judd did not pay the filing fee within the 30-day period, and the Court entered an order deeming the complaint withdrawn and the file closed. (Docket item [7-1], Order entered November 14, 2001).

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 now follows.

II. DISCUSSION

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 omitted).

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 that indigents in general should not be denied access to the courts. The Court finds these cases irrelevant in light of the Third Circuit's ruling in Abdul-Akbar and the mandate of Congress in the PLRA.

Specifically, the Third Circuit observed that § 1915(g) does not impede an inmate's access to the federal courts; rather, the statutory provision only denies the inmate the privilege of filing his complaint before he has paid the necessary filing fee. The ability to proceed as an indigent in federal court is not a constitutional right. It is a statutorily-created right granted by Congress, and Congress has the power to circumscribe or restrict the right to proceed in forma pauperis as it chose to do when it enacted the limiting provisions of § 1915(g). Id. at 316. Therefore, Judd's allegation that this Court's denial of in forma pauperis status deprives him of a constitutional right of access to the courts is unfounded.

The Court also is not persuaded by Judd's argument regarding the practice of other jurisdictions. Judd has chosen to file his instant complaint in this district. This district court is bound by the holding of the Third Circuit in Abdul-Akbar regarding the three strikes provision in § 1915(g). Therefore, where Judd fails to meet the standard articulated under § 1915(g) and by the Third Circuit in Abdul-Akbar, Judd's amended motion for leave to proceed in forma pauperis will be denied.*fn5

B. Fed.R.Civ.P. 60(b) Motion

In a one-page application for relief from judgment under Rule 60(b),*fn6 Judd asserts that this Court lacked jurisdiction to dismiss his Complaint while the October 2, 2001 Order denying leave to proceed in forma pauperis was on appeal to the Third Circuit. Judd's Complaint in this matter was deemed withdrawn by Order dated November 13, 2001 because he failed to pay the $150.00 filing fee within the time specified by this Court in its earlier Order denying Judd's application to proceed in forma pauperis. Judd appealed the denial of in forma pauperis Order to the Third Circuit Court of Appeals on October 17, 2001. The Third Circuit eventually dismissed this appeal on January 3, 2002 for failure to timely prosecute.

While it is not entirely clear from the instant motion, it appears that Judd contends that he is entitled to relief from the Court's "dismissal" of his Complaint because the Court lacked jurisdiction to issue the Order deeming his Complaint withdrawn while the Order denying in forma pauperis status was on appeal to the Third Circuit.*fn7 Judd cites to Rutherford v. Harris County, Texas, 197 F.3d 173, 190 (5th Cir. 1999) and Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

As a general rule, a district court's decision is final and appealable under 28 U.S.C. § 1291 only when it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945). However, in Cohen, the Supreme Court recognized an exception to the final judgment rule for a "small class" of decisions or orders that "finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen, 337 U.S. at 546, 69 S.Ct. 1221. This exception is referred to as the "collateral order" doctrine.

It is well-established that an order denying leave to proceed in forma pauperis is a final, collateral order appealable under 28 U.S.C. § 1291. See Roberts v. United States Dist. Court for the Northern Dist. Of Cal., 339 U.S. 844, 845, 70 S.Ct. 954, 94 L.Ed. 1326 (1950); Abdul-Akbar, 239 F.3d at 311; Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir. 1995); Sinwell v. Shapp, 536 F.2d 15, 16 (3d Cir. 1976). Therefore, when this Court denied Judd's application for in forma pauperis status on October 2, 2001 pursuant to 28 U.S.C. § 1915(g), the order became appealable as a final collateral order.

Thus, once Judd filed his notice of appeal to the Third Circuit on October 17, 2001, this Court was divested of its control over those aspects of the case involved in the appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam). Consequently, the Court is constrained to agree with plaintiff that the Court's Order of November 13, 2001, wherein the Complaint in the instant action was deemed withdrawn and the docket closed, is void because the Court lacked jurisdiction at that time to issue an order affecting the issue on appeal.

Nevertheless, Judd's motion for relief is now moot because both appeals filed by Judd in this matter have been dismissed by the Third Circuit on January 7, 2002 and March 14, 2002, respectively, and jurisdiction is returned to this Court. Based on this Court's ruling, supra, that Judd is not entitled to in forma pauperis status pursuant to 28 U.S.C. § 1915(g), and because Judd has not paid the $150.00 filing fee or shown imminent danger of serious physical injury at the time he filed his Complaint or in his amended motion to proceed in forma pauperis, the Court now deems the Complaint withdrawn and the docket will be closed accordingly. Therefore, Judd's Rule 60(b) motion is dismissed as moot.

CONCLUSION

For the foregoing reasons, the Court denies plaintiffs amended motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g) and dismisses his Rule 60(b) motion for relief from judgment as moot.

ORDER

For the reasons expressed in the Court's Opinion filed herewith,

It is on this 7th day of May, 2002,

ORDERED that plaintiff amended motion to proceed in forma pauperis is DENIED pursuant to 28 U.S.C. § 1915(g); and it is further

ORDERED that plaintiffs motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b) is DISMISSED as moot; and it is finally

ORDERED that plaintiffs Complaint is deemed WITHDRAWN for failure to pay the $150.00 filing fee, and the Clerk is directed to close the docket without filing the Complaint or assessing fees.


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