Judd v. Secretary of State of Alabama et al (MAG+)

Filing 13

OPINION. Signed by Honorable Judge Myron H. Thompson on 12/7/2011. (jg, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

KEITH RUSSELL JUDD,

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Plaintiff,
v.
SECRETARY OF STATE OF
ALABAMA; and STATE OF
ALABAMA,
Defendants.

CIVIL ACTION NO.
2:11cv437-MHT
(WO)

OPINION
Pursuant to 42 U.S.C. § 1983, plaintiff filed this
lawsuit seeking a declaratory judgment and preliminary
injunction to place his name on the ballot for the 2012
Democratic

Party

disenfranchisement

primary

and

asserting

laws

violate

the

that

United

felon
States

Constitution and various federal voting-rights statutes.
This lawsuit is now before the court on the recommendation
and order of the United States Magistrate Judge that
plaintiff’s case be dismissed.

Also before the court are

plaintiff’s objections to the recommendation and order.
After an independent and de novo review of the record, the

court concludes that plaintiff’s objections should be
overruled

and

the

magistrate

judge’s

recommendation

adopted.
The court adds these comments: Plaintiff’s complaint
should

be

dismissed

pursuant

to

28

U.S.C.

§

1915(g)

because of his history of frivolous litigation and his
failure to pay the civil action filing fee at the time he
filed this lawsuit.

Plaintiff contends that the “three

strikes” provision of the Prison Litigation Reform Act
(PLRA) is unconstitutional, in that it violates his right
of access to the courts, his due process and trial by jury
rights,

and,

also,

because

Congress

usurped

reserved to the judiciary in enacting it.
Circuit

Court

of

Appeals

has

upheld

powers

The Eleventh
§

1915(g)

to

constitutional challenges based on right of access to
courts, separation of powers, due process, and equal
protection.

Rivera v. Allin, 144 F.3d 719, 732 (11th Cir.

1998), abrogated on other grounds Jones v. Bock, 549 U.S.
199 (2007).

2

Plaintiff further contends that the PLRA applies to
only prison-conditions cases. Section 1915(g) does not, by
its terms, limit its applicability to prison-conditions
suits.

It

bars

a

prisoner

with

three

strikes

from

proceeding in forma pauperis in “a civil action” unless
the prisoner is under imminent danger of serious physical
injury.
Plaintiff also argues that he is not a “prisoner” as
defined in 28 U.S.C. § 1915(h), since he has not been
convicted.

This contention is false.

The Fifth Circuit

affirmed his 1999 conviction (Case No. 98cr93, W.D. Tex.)
in

2001;

plaintiff

confinement.
includes
within

sentenced

to

210

months

of

Even if the contention were true, § 1915(h)

detainees
its

was

accused

definition

of

of

violating

criminal

“prisoner.”

law

Plaintiff’s

objections are without merit.
An appropriate judgment will be entered.
DONE, this the 7th day of December, 2011.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE