Judd v. Secretary of State of Iowa et al

Filing 4

ORDER Dismissing Case: Application to proceed in forma pauperis is denied. Clerk of Court shall file the complaint for the purpose of making a record. The plaintiff's action is dismissed without prejudice. Appeal packet mailed to plaintiff. Signed by Judge Mark W Bennett on 7/07/2011. (copy w/nef and appeal packet to non-ecf filer) (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
KEITH RUSSELL JUDD,
Plaintiff,

No. C11-4050-MWB

vs.
SECRETARY OF STATE OF IOWA and
STATE OF IOWA,

ORDER

Defendants.
____________________________
This matter is before the court on the plaintiff’s application to proceed in forma
pauperis. The plaintiff submitted such application on May 27, 2011. Along with his
application to proceed in forma pauperis, the plaintiff submitted a complaint pursuant to
42 U.S.C. § 1983. In addition, the plaintiff supplemented his complaint on June 9, 2011.
In 1996, Congress enacted the Prisoner Litigation Reform Act (“PLRA”) to deter
frivolous prisoner litigation. Lyon v. Vande Krol, 127 F.3d 763, 764 (8th Cir. 1997). The
PLRA requires all prisoners to pay the filing fee for civil cases and differentiates among
prisoners on method of payment. See 28 U.S.C. § 1914(a) (requiring filing fee); 28
U.S.C. § 1915 (explaining proceedings in forma pauperis). Prisoners who have not had
three prior cases dismissed as frivolous need only pay a percentage of the fee at the outset
and the remainder over time. 28 U.S.C. § 1915(b)(1)-(4). Such litigants will not be
barred from pursuing a claim by inability to make the required payment. Id. In contrast,
28 U.S.C. § 1915(g), commonly referred to as the “three strikes” provision, 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.
“The statute’s bar does not preclude the inmate from filing additional actions but does deny
him the advantages of proceeding in forma pauperis.” Martin v. Shelton, 319 F.3d 1048,
1050 (8th Cir. 2003); see also Higgins v. Carpenter, 258 F.3d 797, 799-801 (8th Cir.
2001) (holding that the three strikes provision of 28 U.S.C. § 1915(g) is constitutional).
Prior to filing the instant action, the plaintiff filed at least three frivolous actions or
appeals. See, e.g., Judd v. FEC, 311 Fed. App’x 730 (5th Cir. 2009); Judd v. University
of New Mexico, 204 F.3d 1041 (10th Cir. 2000). In addition, it is clear from the
statements that the plaintiff included in his complaint that he is not under imminent danger
of serious physical injury. 28 U.S.C. § 1915(g). Accordingly, the plaintiff’s application
to proceed in forma pauperis shall be denied, and this action shall be dismissed without
prejudice. The clerk’s office shall file the complaint for the purpose of making a record.
IT IS THEREFORE ORDERED:
1) The plaintiff’s application to proceed in forma pauperis (docket no. 1) is denied.
2) The plaintiff’s action is dismissed without prejudice.
3) The clerk’s office is directed to file the plaintiff’s complaint for the purpose of
making a record.
DATED this 7th day of July, 2011.

__________________________________

MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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