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Keith Russell Judd v. Royal Furgeson

November 5, 2012

KEITH RUSSELL JUDD, PLAINTIFF,
v.
ROYAL FURGESON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Jerome B. Simandle

MEMORANDUM OPINION

SIMANDLE, Chief Judge:

This matter is before the court on pro se Plaintiff Keith Russell Judd's motion to reopen his case, which was closed in 2001. [Docket Item 77.] Plaintiff has filed numerous motions to reopen since 2001, the most recent of which was denied in a June 28, 2012 Order [Docket Item 76]. The present motion is governed by Rule 60 of the Federal Rules of Civil Procedure because it seeks to vacate a dismissal order and reopen the matter. Although Plaintiff does not explicitly cite Rule 60, he does "request leave of this court to file this motion to reopen [his] fees paid case." (Pl. Mot. for Leave to File and Reopen this Fees Paid Case ("Pl. Mot. to Reopen"), at 1.)

Additionally, Plaintiff argues that his payment was not received due to a clerical error and that his Fifth Amendment and Seventh Amendment rights have been violated. Plaintiff also seeks to set aside the June 28, 2012 order in which the Court declined to reopen the case. 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 set aside the June 28, 2012 order and reopen his case as the requirements of Rule 60 have not been satisfied.

THE COURT FINDS AS FOLLOWS:

1. In this action, Plaintiff brought a claim against Defendant Royal Furgeson, a United States District Judge, alleging a civil rights violation stemming from Judge Furgeson's denial of Plaintiff's bail. Plaintiff filed his complaint with an application to proceed in forma pauperis on September 5, 2001. The Court denied Plaintiff leave to proceed in forma pauperis via application of the "three strikes" rule against the Plaintiff. The three strikes rule bars prisoners from filing in forma pauperis after they have filed three frivolous motions in forma pauperis. 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.

2. On October 17, 2001 the Plaintiff appealed this court's denial of his application to proceed in forma pauperis. The Third Circuit dismissed Plaintiff's appeal for failure to timely prosecute the matter in January 7, 2002. [Docket Item 11.]

3. The Plaintiff made the only payment toward his filing fee in 2007, submitting a partial payment of $150.00. [Docket Item 62.] In 2001, when the court initially denied the Plaintiff's application to proceed in forma pauperis, the court's filing fee was $150. Plaintiff did not pay any portion of the filing fee that year. The filing fee statute, 28 U.S.C. 1914, was amended twice, and in February 2006 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, in 2007 when the Plaintiff paid $150 towards the filing fee, the filing fee was $350 and his payment of $150 was insufficient. The Plaintiff has failed to pay the entire filing fee and is barred from filing in forma pauperis under the three strikes provision of 28 U.S.C. § 1915(g). No statutory or equitable principle requires the court to hold open the docket or extend the Plaintiff leniency toward amounts owed.

4. Over the past decade, the Plaintiff filed numerous appeals with the Third Circuit challenging the Court's decision requiring the Plaintiff to pay the filing fee. [Docket Items 2, 9, 20, 32, 45, 58, 67.] The Third Circuit dismissed Plaintiff's appeals for failure to prosecute, lack of jurisdiction, and failure to pay docketing fees. [Docket Items 11, 19, 40, 42, 46, 47, 50, 61.]

5. On July 06, 2010, the Plaintiff filed a motion seeking to reopen his case pursuant to Rule 60(a). [Docket Item 73.] The Plaintiff maintained that his filing fee had been paid and that he was entitled to "judicial services" paid for. Plaintiff argued that his complaint for denial of bail is sufficient to proceed on the merits. Additionally, Plaintiff cited Haines v. Kerner, 404 U.S. 519 (1972) for the proposition that a pro se complaint should be liberally construed. The court denied the motion to reopen and Plaintiff's case remained closed on the docket. [Docket Item 74.]

6. The Plaintiff then filed a motion for leave to appeal in forma pauperis and a motion for a refund of the $150 which was paid toward his filing fee. [Docket Item 75.] The Court denied both motions [Docket Item 76] and the Plaintiff's case remained closed on the docket.

7. Now the Plaintiff has filed the instant motion seeking to reopen his case. The motion to reopen specifically concerns the "fees paid case." (Pl. Mot. to Reopen at 1.) [Docket Item 77.] While Plaintiff does not explicitly cite Rule 60, motions to reopen are within the ambit of Rule 60 and Plaintiff's motion will be analyzed under Rule 60.

8. Fed. R. Civ. P. 60 provides:

(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 ...


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