Judd v. Obama, No. 5:2013cv00040 - Document 8 (N.D.W. Va. 2013)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 5 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND DISMISSING CIVIL ACTION. 6 Motion for Leave to Proceed in forma pauperis is DENIED. This civil action is DISMISSED WITHOUT PREJUDICE. It is ORDERED that this case be DISMISSED and STRICKEN from the active docket of this Court. This Court finds that the plaintiff was properly advised by the magistrate judge that failure to timely object to the report and recommendation in this action w ould result in a waiver of appellate rights. Because the plaintiff has failed to object, he has waived his right to seek appellate review of this matter. The Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr. on 10/21/2013. (copy to Pro Se Plaintiff via Certified Mail, rrr) (nmm) (Additional attachment(s) added on 10/21/2013: # 1 Certified Mail Return Receipt) (nmm).

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA KEITH RUSSELL JUDD, Plaintiff, v. Civil Action No. 5:13CV40 (STAMP) BARACK OBAMA and WEST VIRGINIA STATE DEMOCRATIC PARTY, Defendants. MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND DISMISSING CIVIL ACTION I. Procedural History On March 15, 2013, the plaintiff, who is an inmate at FCI Texarkana, filed this civil action in this Court. In his complaint, the plaintiff alleges that the President of the United States is not a United States citizen and should therefore, be removed from office and replaced with the plaintiff. The Clerk of Court sent the plaintiff this Court s form motion to proceed in forma pauperis ( IFP )1 that he was to fill out and return. Pursuant to Local Rule of Prisoner Litigation 2, this case was referred to United States Magistrate Judge James E. Seibert for report and recommendation. 1 In forma pauperis refers to the filing status as a pauper, or indigent who is permitted to disregard filing fees and court costs. Black s Law Dictionary 849 (9th ed. 2009). Magistrate Judge Seibert then entered a report and recommendation prior to receiving the plaintiff s motion to proceed IFP, recommending that the plaintiff s case be dismissed pursuant to 28 U.S.C. 1915(g), because the plaintiff has filed at least three cases that courts dismissed as frivolous. The magistrate judge informed the plaintiff that he was required to file any objections to the report and recommendation recommending dismissal of this civil action within fourteen days of the entry of the report and recommendation. The plaintiff did not file objections. II. Applicable Law Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of any portion of the magistrate recommendation to which objection is timely made. judge s Because no objections were filed, all findings and recommendations will be upheld unless they are clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A). III. Discussion The Prisoner Litigation Reform Act of 1995 generally prohibits prisoners from filing a complaint under IFP status if that prisoner has filed at least three IFP cases previously which have been dismissed as frivolous. Title 28, United States Code, Section 1915(g) specifically provides as follows: In no event shall a prisoner bring a civil action . . . if the prisoner has, on 3 or more prior occasions, while incarcerated 2 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 magistrate judge found that this section of the Prison Litigation Reform Act ( PLRA ) was applicable in this case, and as such it was not necessary to wait for the receipt of the plaintiff s motion to proceed IFP. Thus, the magistrate judge recommended dismissal of this civil action. This Court has reviewed the record in this case, as well as Magistrate Judge Seibert s report and recommendation. This Court has confirmed that, while he has been incarcerated, the plaintiff has filed at least three civil actions in federal courts which have been dismissed as frivolous. Further, as the plaintiff s complaint in this case asks this Court to find that the President of the United States is not a citizen and replace the President with the plaintiff, this Court finds that this complaint does not present any allegation that the plaintiff is in imminent danger of serious physical injury. Accordingly, this Court finds that the magistrate judge s recommendation of dismissal was not clear error. IV. Conclusion For the reasons described above, the report and recommendation of the magistrate judge is AFFIRMED and ADOPTED in its entirety. Accordingly, the plaintiff s motion for leave to proceed in forma 3 pauperis is PREJUDICE. DENIED. This civil action is DISMISSED WITHOUT It is ORDERED that this case be DISMISSED and STRICKEN from the active docket of this Court. Finally, this Court finds that the plaintiff was properly advised by the magistrate judge that failure to timely object to the report and recommendation in this action would result in a waiver of appellate rights. Because the plaintiff has failed to object, he has waived his right to seek appellate review of this matter. See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir. 1985). IT IS SO ORDERED. The Clerk is directed to transmit a copy of this order to the pro se plaintiff by certified mail and to counsel of record herein. Pursuant to Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment on this matter. DATED: October 21, 2013 /s/ Frederick P. Stamp, Jr. FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE 4

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