JUDD v. FEDERAL CORRECTIONAL
Filing
39
MEMORANDUM OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 7/25/12. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
KEITH RUSSELL JUDD,
Plaintiff,
HON. JEROME B. SIMANDLE
Civil No. 02-5305 (JBS)
v.
FEDERAL CORRECTIONAL INSTITUTE
AT FORT DIX NEW JERSEY,
MEMORANDUM OPINION
Defendants.
SIMANDLE, Chief Judge:
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.
1.
THE COURT FINDS AS FOLLOWS:
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within thirty days or his complaint would be deemed withdrawn.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.
3.
[Docket Item 16.]
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
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exception of an application for a writ of habeas corpus.
U.S.C. § 1914(a).
See 28
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
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to reopen his case pursuant to Rule 60(a) and (b).
38.]
[Docket Item
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, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move
for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an
opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or
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discharged; it is based on an earlier judgment that has
been reversed or vacated; or applying it prospectively is
no longer equitable; or
(6) any other reason that justifies relief.
(c) Timing and Effect of the Motion.
(1) Timing. A motion under Rule 60(b) must be made
within a reasonable time--and for reasons (1), (2), and
(3) no more than a year after the entry of the judgment
or order or the date of the proceeding.
8.
In this case, the Plaintiff does not allege that there
was a clerical mistake or error in the order of the court
requiring the Plaintiff to pay the filing fee within thirty days
and that failure to pay the filing fee would result in his
complaint being withdrawn.
Consequently, Rule 60(a) is
inapplicable.
9.
With regard to Rule 60(b)(1),(2) and (3), the Plaintiff
has filed this motion well outside the one year limitations
period and the Plaintiff has presented no proof of mistake,
inexcusable neglect, newly discovered evidence or fraud which
would permit the court to reopen the case.
Therefore, Rule
60(b)(1),(2) and (3) do not apply.
10.
The Plaintiff has presented no evidence that the
court's judgment is void and therefore the Plaintiff cannot meet
the requirements of Rule 60(b)(4).
11.
In regards to Rule 60(b)(5), the Plaintiff argues that
he has paid the filing fee and consequently satisfied the order
of the court and accordingly, his case should be heard.
argument is unpersuasive for several reasons.
5
This
First, Plaintiff
made no payments toward his filing fee within the 30-day window
established by the Order of November 13, 2002, above.
Item 2.]
[Docket
Second, at the time the Plaintiff began making payments
to the court, the fee was $350 to file a complaint.
The
Plaintiff has only paid $300 towards this fee, and therefore, has
not paid the total sum required to file his complaint.
12.
As noted, the 2002 Order of the court required the
Plaintiff to pay the filing fee within thirty days. [Docket Item
2.]
Construing this requirement liberally in favor of the
Plaintiff, the thirty day time period began when the Plaintiff's
appeal of this court's order was denied by the Third Circuit on
March 27, 2003.
[Docket Item 16.]
The Plaintiff did not make
his first partial payment towards his filing fee until over four
years later on November 7, 2007. [Docket Item 17.]
This is
clearly outside the court's thirty day limitations period and
cannot be considered reasonable or diligent.
Therefore,
Plaintiff's argument that he has satisfied the order of the court
is without merit and Rule 60(b)(5) is inapplicable.
13.
Finally, Plaintiff argues the Supreme Court's decision
in Erickson, supra, warrants reinstatement of the Plaintiff's
case under Rule 60(b)(6).
The Erickson case, however, did not
address the application of the three strikes rule which is the
main issue in this case.
The Erickson case also did not provide
a new legal basis for considering pro se pleadings.
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Rather, the
Erickson case reinforced the time-honored ruling in Haines,
supra, that when evaluating the merits of a pro se prisoner's
complaint, the court should construe the complaint liberally.
This is not at issue in this case as the court has not reached
the merits of Plaintiff's complaint because he has not paid the
required filing fee.
Therefore, since there has been no
intervening change in the law with regard to the three strikes
rule, and the Plaintiff's appeal of the application of the three
strikes rule in this case was unsuccessful, Rule 60(b)(6) does
not apply and Plaintiff's case will not be reopened.
14.
Accordingly, for the reasons stated above, Plaintiff’s
motion to reopen his case will be denied.
The accompanying Order
will be entered.
15.
If, as Plaintiff now suggests, his medical condition
has become serious and a prison official is deliberately
indifferent to his specific medical need, Plaintiff is free to
file a new Complaint in the District where he is confined
presenting his current allegations accompanied by his filing fee
or an application to proceed in forma pauperis on grounds of
being "under imminent danger of serious physical injury" within
the meaning of 28 U.S.C. § 1915(g).
Any claim of "imminent
danger of serious physical injury" must be supported by evidence
that this is so.
July 25, 2012
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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