Gillilan v. Roach

Filing 4

ORDER Denying Plaintiff's request to proceed in forma pauperis and Dismissing this action without prejudice. Ordered by Judge C. Ashley Royal on 4/14/11. (lap)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
GREGORY GILLILAN,

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:
Plaintiff
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VS.
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Ms. ROACH,
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Defendant
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____________________________________:

NO. 5:11-CV-138 (CAR)
ORDER

Plaintiff GREGORY GILLILAN, # 774552, currently an inmate at Central State Prison
(“CSP”), has filed a pro se civil rights complaint under 42 U.S.C. § 1983. Parties instituting nonhabeas civil actions are required to pay a filing fee of $350.00. 28 U.S.C. § 1914(a). Because
plaintiff has failed to pay the required filing fee, the Court assumes that he wishes to proceed in
forma pauperis in this action.
Under the “three strikes” provision of the Prison Litigation Reform Act (“PLRA”), a prisoner
is generally precluded from proceeding in forma pauperis if at least three prior lawsuits or appeals
by the prisoner were dismissed as frivolous, malicious or failing to state a claim upon which relief
may be granted. 28 U.S.C. §1915(g). Section 1915(g) provides an exception to the three strikes
rule, under which an inmate may proceed in forma pauperis if he alleges he is in “imminent danger
of serious physical injury.” ” The prisoner must allege a present imminent danger, as opposed to
a past danger, to proceed under section1915(g)’s imminent danger exception. Medberry v. Butler,
185 F.3d 1189, 1193 (11th Cir. 1999).

The Eleventh Circuit has upheld the constitutionality of section 1915(g) in concluding that
section 1915(g) does not violate an inmate’s right of access to the courts, the doctrine of separation
of powers, an inmate’s right to due process of law, or an inmate’s right to equal protection. See
Rivera v. Allin, 144 F.3d 719, 721-27 (11th Cir. 1998).
A review of court records reveals that plaintiff has filed approximately 150 civil actions in
the United States District Courts for the Middle and Southern Districts of Georgia, and at least 11
of those complaints or appeals have been dismissed as frivolous.1 As plaintiff has more than three
strikes, he cannot proceed in forma pauperis in the instant case unless he can show that he qualifies
for the “imminent danger of serious physical injury” exception of section 1915(g). Plaintiff’s
allegations of inadequate clothing clearly do not support that plaintiff is in “imminent danger of
serious physical injury.”
Because plaintiff has at least three prior strikes and is not under imminent danger of serious
injury, his request to proceed in forma pauperis is DENIED and the instant action is DISMISSED
WITHOUT PREJUDICE. If plaintiff wishes to bring a new civil rights action, he may do so by
submitting a new complaint form and the entire $350.00 filing fee. As the Eleventh Circuit held
in Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002), a prisoner cannot simply pay the filing
fee after being denied in forma pauperis status; he must pay the filing fee at the time he initiates the
suit.

1

Gillilan v. Pollark, 1:07-CV-50 (WLS) (M.D. Ga. Apr. 4, 2007); Gillilan v. Galloway, 1:06CV-71 (WLS) (M.D. Ga. Mar. 5, 2007); Gillilan v. Scarborough, 1:05-CV-172 (WLS) (M.D. Ga. Feb. 2,
2007); Gillilan v. Harrison, 1:06-CV-176 (WLS) (M.D. Ga. Jan. 31, 2007); Gillilan v. Bell, 1:07-CV-3
(WLS) (M.D. Ga. Jan. 11, 2007); Gillilan v. Thomas, 1:06-CV-122 (DHB) (S.D. Ga. Jan. 10, 2007);
Gillilan v. Johnson, 1:06-CV-177 (WLS) (M.D. Ga. Jan. 8, 2007)( Additionally, a later appeal was
dismissed as frivolous in this case on April 25, 2007); Gillilan v. Cannon, 1:06-CV-114 (WLS) (M.D.
Ga. Aug. 8, 2006); Gillian v. Hilton, 1:05-CV-133 (WLS) (M.D. Ga. Aug. 18, 2006) (Additionally, a
later appeal was dismissed in this case on May 8, 2007).

SO ORDERED, this 14th day of April, 2011.

S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT

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