Gillilan v. Slappy

Filing 4

ORDER DENYING in forma pauperis and DISMISSING WITHOUT PREJUDICE 1 Complaint filed by Gregory Linston Gillilan. Ordered by Judge Marc Thomas Treadwell on 4/21/2011. (tlh)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION GREGORY GILLILAN, Plaintiff vs. Prison Guard SLAPPY, Defendant ________________________________ : : : : : : : : : NO. 5:11-CV-150 (MTT) ORDER Plaintiff GREGORY GILLILAN, presently an inmate at Johnson State Prison in Wrightsville, Georgia, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. Parties instituting non-habeas 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). Dismissal without prejudice for failure to exhaust administrative remedies and dismissal for abuse of judicial process are also properly counted as strikes. See Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998). 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. Rivera, 144 F.3d at 721-27. A review of court records reveals that plaintiff has filed more than 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 resulting 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 complains that he was denied a lock for his locker while he was confined at Central State Prison to secure his personal belongings. On April 9, 2011, plaintiff alleges that, while he was at medical, his locker was broken into and all his store goods and radio were stolen. Plaintiff’s claims do not remotely approach allegations of “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 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). -2- pauperis status; he must pay the filing fee at the time he initiates the suit. SO ORDERED, this 21st day of April, 2011. S/ Marc T. Treadwell MARC T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT -3-

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