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)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
GREGORY GILLILAN,
Plaintiff
vs.
Prison Guard SLAPPY,
Defendant
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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).
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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

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