The opinion of the court was delivered by: Hon. Jerome B. Simandle
This matter is before the court on pro se Plaintiff Keith Russell Judd's motion to reopen his case. [Docket Item 38.] Plaintiff requests leave of the Court to file the instant motion and asks the court to reopen his case pursuant to Fed. R. Civ. P. 60(a) and 60(b) and set aside the dismissal order filed November 4, 2002. For the reasons stated below, the Court will grant Plaintiff leave to file the instant motion; however, the Court will deny Plaintiff's motion to reopen his case and set aside the 2002 dismissal order as the requirements of Rule 60 have not been satisfied. THE COURT FINDS AS FOLLOWS:
1. In this action, Plaintiff brings a claim against Defendant FCI - Fort Dix alleging that he was refused medical treatment after he developed an inguinal hernia. Plaintiff filed his complaint with an application to proceed in forma pauperis on November 4, 2002. The court denied Plaintiff leave to proceed in forma pauperis due to the court's previous application of the "three strikes" rule against the Plaintiff. See Judd v. Furgeson, 239 F. Supp. 2d 442, 443 (D.N.J. 2002)("Plaintiff Keith Russell Judd . . . is a federal prisoner . . . [and] had at least three prior civil actions dismissed as frivolous or for failure to state a claim, and Judd therefore could not be granted in forma pauperis status pursuant to 28 U.S.C. § 1915(g)."). Therefore, the court directed the Plaintiff to pay the filing fee within thirty days or his complaint would be deemed withdrawn. [Docket Item 2.]
2. The Plaintiff then appealed this court's denial of his application to proceed in forma pauperis. The Plaintiff's appeal was dismissed by the Third Circuit for failure to timely prosecute the matter in 2003. [Docket Item 16.]
3. Four years later, in 2007, the Plaintiff made his first payment toward his filing fee, submitting a partial prisoner payment of $150.00. [Docket Item 17.] In 2002, when the court initially denied the Plaintiff's application to proceed in forma pauperis, the court's filing fee was set at $150. In December 2004, 28 U.S.C. § 1914 was amended and the filing fee was raised to $250. Plaintiff had paid no filing fee, in whole or in part, by that time. The statute was amended again in February 2006 and the fee was raised to its current rate of $350 for any party instituting a civil action in the district court, with the exception of an application for a writ of habeas corpus. See 28 U.S.C. § 1914(a). Therefore, at the time the Plaintiff began paying his filing fee to the court, the Plaintiff was required to pay $350 in order to file his complaint. The Plaintiff made one more additional payment of $150 to the court in February 2008. [Docket Item 18.] In total, the Plaintiff has paid $300 towards his $350 filing fee. No statutory or equitable principle suggests that this Court must hold open the docket for years while an individual who is barred from filing in forma pauperis under the three-strikes provision of 28 U.S.C. § 1915(g) ponders whether to make payment of his filing fee.
4. During 2008 and 2009, the Plaintiff continued to file a series of appeals with the Third Circuit challenging the court's initial decision requiring the Plaintiff to pay the filing fee. [Docket Items 19, 21, 25, 28.] The Third Circuit continued to dismiss Plaintiff's appeals for failure to prosecute. [Docket Items 23 and 32.]
5. The Plaintiff then filed a motion in this court for leave to appeal in forma pauperis [Docket Item 31] and a motion for the refund of his $300 which was paid towards his filing fee [Docket Item 36]. The court denied both motions and the Plaintiff's case remains closed on the docket. [Docket Items 33 and 37.]
6. Now the Plaintiff has filed the instant motion seeking to reopen his case pursuant to Rule 60(a) and (b). [Docket Item
38.] The Plaintiff maintains that his filing fee has been paid twice and that he is in danger of imminent and serious physical injury if he does not receive medical treatment for his inguinal hernia. The Plaintiff relies on the Supreme Court's decision in Erickson v. Pardus, 551 U.S. 89 (2007) and argues that his complaint for denial of medical treatment is sufficient to proceed on the merits. The Plaintiff also relies on Haines v. Kerner, 404 U.S. 519 (1972) for the proposition that a pro se prisoner complaint should be liberally construed.
7. Fed. R. Civ. P. 60 provides:
Relief from a Judgment or Order
(a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court's leave.
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, ...