Judd v. United States of America et al
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATIONS for 40 Report and Recommendations, denying 39 MOTION to Alter Judgment filed by Keith Russell Judd. Signed by Judge David Folsom on 9/30/11. (mrm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
KEITH RUSSELL JUDD
§
v.
§
CIVIL ACTION NO. 5:10cv240
UNITED STATES OF AMERICA, ET AL. §
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND DENYING MOTION FOR RELIEF FROM JUDGMENT
The Movant Keith Judd, proceeding pro se, filed this civil action apparently complaining of
violations of his constitutional rights. This Court ordered that the matter be referred to the United
States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the
Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.
In his complaint, Judd asserted that he was being denied access to various courts within the
Third, Fifth, Seventh, and Tenth Circuits, as well as the Court of Federal Claims and the Federal
Circuit. This denial of access apparently arose from certain unspecified “unconstitutional restrictions
and procedural bars” in the Anti-Terrorism and Effective Death Penalty Act, causing him to be
“falsely imprisoned as an innocent man.” Judd also complained that he was being denied access to
court by the “three strikes” provision, 28 U.S.C. §1915(g). He asked that all of his cases be
transferred to the U.S. Supreme Court in the exercise of that Court’s original jurisdiction, that he be
granted leave to proceed in forma pauperis, that the Anti-Terrorism and Effective Death Penalty Act
and the Prison Litigation Reform Act be declared unconstitutional, and that he receive unspecified
declaratory and injunctive relief, as well as damages.
Judd’s petition was dismissed on May 10, 2011. In dismissing his case, the Court observed
that Judd had an extensive history of filing frivolous and vexatious pleadings within the Fifth Circuit
as well as many other courts, which has resulted in the imposition of numerous sanctions, totaling
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well over $1000.00. The Fifth Circuit has held that in order to file new cases, Judd must show that
all of the sanctions which have been imposed on him have been satisfied in full, and he must obtain
leave from the court in which he seeks to file. Judd must also certify that the claim which he wishes
to raise is a new one which has never before been raised or disposed of on the merits or which
remains pending. In the present case, the Court determined that Judd had failed to meet any of these
requirements, and the petition was dismissed.
On May 31, 2011, Judd filed a motion to alter or amend the judgment. In this motion, Judd
contends first that he filed a notice of appeal to the Federal Circuit, which requires a stay pending
resolution of the appeal. He also states that he filed a motion to transfer the case to the Court of
Federal Claims, which requires that no further proceedings be taken until the motion to transfer is
decided. Thus, he claimed that the May 10 judgment is void and must be vacated.
On June 7, 2011, the Magistrate Judge issued a Report recommending that the motion to alter
or amend the judgment be denied. The Magistrate Judge noted that Judd had failed to show that he
has satisfied the sanctions imposed upon him, and concluded that his purported notices of appeal and
motion to transfer were nullities. In addition, the Magistrate Judge determined that Judd’s purported
notice of appeal was not an appeal of a final judgment, and that the motion to transfer to the Federal
Circuit was patently frivolous and in bad faith; hence, this notice of appeal did not divest the district
court of jurisdiction. See, e.g., Foglia v. Milby, 132 F.3d 1453, 1997 WL 802037 (5th Cir.,
November 11, 1997); accord, U.S. v. Wilkes, 368 F.Supp.2d 366, 368 (M.D.Pa. 2005) (district court
may proceed after a notice of appeal is filed where the appeal is patently frivolous, it relates to a nonappealable order or judgment, or the appeal is taken in bad faith and would result in unwarranted
delay) (citations omitted). The Magistrate Judge also observed that the claims which Judd sought
to raise have already been presented to, and rejected by, the Court of Federal Claims and the U.S.
Court of Appeals for the Federal Circuit. See Judd v. United States, No. 05-CV-726 (Fed.Cl.,
December 8, 2005), aff’d 189 Fed.Appx. 951, 2006 WL 1843150 (Fed. Cir. 2006). Transferring
these repetitive claims would thus have served no useful purpose. The Magistrate Judge determined
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that Judd had set no meritorious grounds for relief from judgment, and recommended that Judd’s
motion to alter or amend the judgment be denied.
Judd filed objections to the Magistrate Judge’s Report on June 16, 2011. In his objections,
he again refers to his notice of appeal to the Court of Federal Claims, and argues that because of this
notice, the Court lacked jurisdiction to dismiss his lawsuit. He asserts that one aspect of his claim
was not raised in the Court of Federal Claims because that court denied him leave to proceed in
forma pauperis under 28 U.S.C. §1915(g), but offers nothing to show that the same statute would
not bar him in the present case. The Magistrate Judge correctly determined that Judd’s purported
notice of appeal was not an appeal of a final judgment, and that the motion to transfer to the Federal
Circuit was patently frivolous and in bad faith, and therefore did not divest the district court of
jurisdiction. This claim for relief from judgment is without merit.
Judd goes on to argue that the Fifth Circuit lacks jurisdiction to bar future filings in district
courts because the Fifth Circuit only has appellate jurisdiction over final decisions under 28 U.S.C.
§1291. Thus, he claims that the filing bar imposed by the Fifth Circuit is “void for lack of original
subject matter jurisdiction and is not binding on this Court.” The U.S. District Court for the Eastern
District of Texas is subject to the orders issued by the Fifth Circuit. Judd’s claim on this point is
without merit.
Judd notes that an opinion from the federal district court in New Jersey in 2002 referred to
an inguinal hernia from which Judd suffers, and states that “the courts have sent a signal to the
Bureau of Prisons that Judd will never get any relief from any federal court.” As a result, he claims
that the Bureau of Prisons ordered him to sign a refusal of treatment form on June 19, 2009, but he
would not do so, contending that he was not refusing treatment. The listed consequences on the form
were “severe pain, worsening of condition, infection up to and including death.” Judd claims that
“this is now on the responsibility and liability of the federal courts.”
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An inguinal hernia from 2002, and a refusal of treatment form in 2009, do not show that Judd
was in imminent danger of serious physical injury as of the time of the filing of the lawsuit in June
of 2010. Judd has previously argued, unsuccessfully, that his hernia should qualify him for the
“imminent danger” exception to 28 U.S.C. §1915(g). In Judd v. Lappin, slip op. no. 04-5337, 2004
WL 3019537 (C.A.D.C., December 30, 2004), the U.S. District Court for the District of Columbia
stated that “likewise, although appellant argues that 28 U.S.C. §1915(g) does not apply in light of
his hernia condition, this court has already held that the hernia does not satisfy §1915(g)’s imminentdanger provision. See Judd v. Lappin, No. 04-5186, unpublished order (D.C.Cir., November 22,
2004).”
In Judd v. Federal Election Commission, 311 Fed.Appx. 730, 2009 WL 423966 (5th Cir.,
February 20, 2009), Judd argued that he was a candidate for President of the United States, but that
as a prisoner, he could not vote for himself. He argued that he was entitled to the imminent danger
exception because of his hernia and threats from prison gang members, but the Fifth Circuit stated
that “although it may be true that Judd is now under such a threat both from his medical condition
and fellow prisoners, neither of those threats is related to his complaint.”
Similarly, Judd’s present complaint makes no mention of his hernia or of the medical
treatment which he is receiving in Texarkana. Because these allegations do not relate to his
complaint, the “imminent danger” exception does not apply. In addition, Judd’s objections fail to
show that he has satisfied the sanctions which he been imposed upon him, and in fact do not mention
these sanctions beyond the wholly meritless contention that the Fifth Circuit cannot bar litigants in
the district courts within its jurisdiction. Judd’s objections are without merit.
The Court has conducted a careful de novo review of the pleadings in this cause, including
the Movant’s motion for relief from judgment, the Report of the Magistrate Judge, and the Movant’s
objections thereto. Upon such de novo review, the Court has concluded that the Report of the
Magistrate Judge is correct and that the Movant’s objections are without merit. It is accordingly
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.
ORDERED that the Movant’s objections are overruled and the Report of the Magistrate
Judge (docket no. 40) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the Movant’s motion to alter or amend the judgment (docket no. 39) be and
hereby is DENIED.
SIGNED this 30th day of September, 2011.
____________________________________
DAVID FOLSOM
UNITED STATES DISTRICT JUDGE
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