Judd v. Secretary of State of West Virginia et al

Filing 32

MEMORANDUM OPINION AND ORDER denying plaintiff Keith Russell Judd's 25 MOTION for Relief from Judgment or Order under Twenty Fourth Amendment; and Motion to Amend for Court Order to Register All Convicted and Incarcerated Felons to Vote in all Federal Elections and Caucuses and Democratic National Convention; and for Order to Remove Barack Obama From State's 2012 Presidential Primary Election Ballot/Caucus and Award all Delegates to Keith Judd, Democratic Presidential Candidate. Signed by Judge Thomas E. Johnston on 1/30/2013. (cc: pro se petitioner; attys; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

KEITH RUSSELL JUDD,
Plaintiff,
v.

CIVIL ACTION NO. 2:11-cv-00369

SECRETARY OF STATE OF
WEST VIRGINIA et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff Keith Russell Judd’s “Motion for Relief from Judgment or
Order under Twenty Fourth Amendment; and Motion to Amend for Court Order to Register All
Convicted and Incarcerated Felons to Vote in all Federal Elections and Caucuses and Democratic
National Convention; and for Order to Remove Barack Obama From State’s 2012 Presidential
Primary Election Ballot/Caucus and Award all Delegates to Keith Judd, Democratic Presidential
Candidate” [Docket 25]. For the reasons that follow, the motion is DENIED.
Plaintiff, an inmate at FCI Texarkana, Texas, filed a complaint under 42 U.S.C. § 1983 in
this Court on May 23, 2011, alleging that he had been unconstitutionally denied his right to vote
and to run for presidential office in 2012. Plaintiff submitted his complaint with an application
for waiver of filing fees and costs. The action was referred to United States Magistrate Judge
Mary E. Stanley for submission of proposed findings of fact and a recommendation for
disposition (PF&R). On May 25, 2011, Judge Stanley denied Plaintiff’s application to proceed

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without payment of the filing fee for failure to submit the appropriate form.

She ordered

Plaintiff either to file the appropriate application for a fee waiver, which she attached, or to pay
the $350 filing fee.

Judge Stanley submitted her PF&R on June 23, 2011, in which she

recommended summary dismissal of this case due to Plaintiff’s failure to comply with the May
25 Order. Plaintiff promptly filed objections.
On September 6, 2011, this Court issued a Memorandum Opinion overruling Plaintiff’s
objections and adopting the PF&R in its entirety. The Court found that Plaintiff was fully
subject to the limitations of the Prisoner Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g),
which bar him from proceeding in this action without prepayment of the required filing fee
because he has on three or more prior occasions brought an action that was dismissed as
frivolous, malicious, or for failure to state a claim.1 Contrary to Plaintiff’s assertion, the Court
also found that the Twenty-Fourth Amendment to the United States Constitution did not limit the
PLRA’s applicability. The Court therefore found that Plaintiff could not proceed in this action
without payment of the filing fee and dismissed this case from its docket.
Plaintiff subsequently filed the pending motion for relief from the Court’s Memorandum
Opinion and accompanying Judgment Order. Plaintiff’s motion reasserts his previous argument
that the Twenty-Fourth Amendment excuses him from payment of the Court’s filing fee.
Plaintiff goes on to challenge the constitutional validity of felon disenfranchisement, to reassert
his candidacy for President of the United States, and to request President Barack Obama’s
removal from the 2012 presidential ballot.
Federal Rule of Civil Procedure 60 governs requests for relief from a final judgment.
Under Rule 60, a court may relieve a party from a final judgment or order for these reasons:
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The PLRA’s exception for a prisoner who shows that he is “under imminent danger of serious
physical injury” is not applicable in this case. 28 U.S.C. § 1915(g).
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(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 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.
Fed. R. Civ. P. 60(b). Plaintiff does not allege any basis for relief under 60(b)’s subparts.
Though his renewed argument that the Twenty-Fourth Amendment trumps the PLRA’s
application in this case could perhaps be interpreted as alleging legal error in the Court’s
previous Memorandum Opinion, legal error is not a ground for relief under Rule 60(b). See
Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995). Further, this
argument is as utterly meritless now as it was when the Court issued its earlier Memorandum
Opinion. Having previously held that Plaintiff cannot proceed in this action without paying the
requisite filing fee, the Court will not revisit its September 6, 2011 Memorandum Opinion or its
accompanying Judgment Order.
Accordingly, the Court DENIES Plaintiff’s motion [Docket 25].
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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January 30, 2013