WV federal judge tosses Texas convict’s ACA suit - WBOY.com: Clarksburg, Morgantown: News, Sports, Weather

WV federal judge tosses Texas convict’s ACA suit

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A West Virginia federal judge has tossed a Texas convict's suit that alleged the tax penalty in the Affordable Care Act is unconstitutional.  

Keith Judd, an inmate at Beaumont Federal Correctional Institution, ran for president in the 2012 presidential primary.

Judd, who is serving a 17 ½ year sentence for making threats at the University of New Mexico in 1999, filed his complaint for declaratory judgment and injunction against the Commissioner of Internal Revenue and the U.S. Department of the Treasury March 8 in U.S. District Court for the Northern District of West Virginia.

Acting as his own attorney, Judd asked the court to prohibit the IRS from collecting the tax penalty of the Affordable Care Act, saying "the command is unconstitutional and cannot be enforced under Congress's taxing power."

In his April 9 memorandum opinion and order, U.S. District Judge Frederick P. Stamp Jr. dismissed the civil action without prejudice.

Judd additionally filed a motion to proceed in forma pauperis. Court documents say pursuant to the local rule of prisoner litigation, the case was referred to U.S. Magistrate Judge James E. Seibert for report and recommendation.

Seibert recommended Judd's motion be denied and the case dismissed because he said Judd filed more than 1,000 actions in federal courts and at least three of which have been dismissed as frivolous.

Judd was allotted 14 days to file objections to the report and recommendations; however, he did not file any.

In his memorandum opinion, Stamp said the Prisoner Litigation Reform Act of 1995 prohibits prisoners from filing a complaint under this type of motion if that prisoner filed at least three cases under this motion before that have been dismissed as frivolous.

Stamp additionally found that "this case does not present any allegation that the plaintiff is in ‘imminent danger or serious physical injury.'"  

The health care law also included penalties that would be levied on individuals and businesses that do not comply with the act. The law stipulates that those penalties should begin to go into place in 2014.

Judd said he is scheduled for release from federal prison within days and will be living in Odessa, Texas. His suit states he and his wife will be earning above 133 percent of the poverty level and will be required to purchase health insurance or pay this penalty.

"However, due to the cost of living, rising prices, poor economy, and low pay job market, petitioner and his common law wife choose not to purchase health insurance at this time because of a tight budget."

Judd also alleges the mandate can't be both a penalty and a tax.

"It can't be both ways," Judd said in his suit. "If the Affordable Care Act penalty is a tax, then the Supreme Court would have jurisdiction for the decision in Sebelius, supra, under the Anti-Injunction Act."

"If the Affordable Care Act penalty is as it says, a penalty, then Congress lacks taxing power to impose the penalty on citizens who do not purchase health insurance."

He said it also violates First Amendment rights by prohibiting free exercise of religion.

"The free exercise of religion does account for healing and creation by God. The penalty-tax inhibits this practice," the suit states. "The Affordable Care Act, transforms the government into a deity or god which establishes the government as a religion forced by commands and the tax-penalty."