Gillilan v. Alston

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 6/3/11. (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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DR. MARY ALSTON,
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Defendant
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____________________________________:

CIVIL ACTION NO. 5:11-CV-207 (CAR)

ORDER
Plaintiff GREGORY GILLILAN, presently incarcerated at Rogers State Prison in Reidsville,
Georgia, has filed a pro se civil rights complaint under 42 U.S.C. §1983. Plaintiff has not paid the
$350.00 filing fee or sought leave to proceed without prepayment of the filing fee or security
therefor pursuant to 28 U.S.C. § 1915(a). Because Plaintiff has not paid the filing fee, the Court will
assume he wishes to proceed in forma pauperis.
However, pursuant to 28 U.S.C. § 1915(g), a prisoner is prohibited from bringing a civil
action in federal court in forma pauperis “if the prisoner has, on 3 or more prior occasions, while
incarcerated 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

Eleventh Circuit has concluded that §1915(g) does not violate the doctrine of separation of powers,
an inmate’s right of access to the courts, an inmates right to due process of law, or an inmates right
to equal protection. Dismissal of a prisoner complaint under this section is thus constitutional. See
Rivera v. Allin, 144 F.3d 719, 721-27 (11th Cir. 1998), abrogated on other grounds by Jones v.
Bock, 549 U.S. 199, 127 S. Ct. 910, 166 L.Ed.2d 798 (2007).
A review of court records reveals Plaintiff has a prolific filing history. At present, at least
eleven (11) of these complaints or appeals have been dismissed as frivolous pursuant to 28 U.S.C.
§ 1915: Gillian v. Pollark, 1:07-CV-50 (WLS)(M.D. Ga. April 4, 2007); Gillilan v. Galloway, 1:06CV-71 (WLS)(M. D. Ga. March 5, 2007); Gillilan v. Scarborough, 1:05-CV-172 (WLS)(M. D. Ga.
February 2, 2007); Gillilan v. Harrison, 1:06-CV-176 (WLS)(M. D. Ga. January 31, 2007); Gillilan

v. Bell, 1:07-CV-3 (WLS) (M.D. Ga. January 11, 2007); Gillilan v. Thomas, 1:06-CV-122 (DHB)(S.
D. Ga. January 10, 2007); Gillilan v. Johnson, 1:06-CV-177 (WLS)(M.D. Ga. January 8, 2007)(A
later appeal was also dismissed as frivolous in this case on April 25, 2007); Gillilan v. Cannon, 1:06CV-114 (WLS)(M.D. Ga. August 8, 2006); Gillian v. Hilton, 1:05-CV-133 (WLS)(M.D.Ga. August
18, 2006)(A later appeal was also dismissed in this case on May 8, 2007).
Because Plaintiff has had at least eleven prior dismissals, 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 § 1915(g). The Court notes that plaintiff is incarcerated in the Rogers
State Prison in Reidsville, Georgia. If Plaintiff wishes to file a claim alleging that he is in “imminent
danger of serious physical injury,” the proper venue for such claim is the Southern District of
Georgia, where Rogers State Prison is located.
Therefore, Plaintiff’s 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 against this
Defendant, he may do so by submitting new complaint forms and the entire $350.00 filing fee at the
time of filing the complaint in the Southern District of Georgia.1

SO ORDERED, this 3rd day of June, 2011.
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT

jlr

1

In Dupree v. Palmer, 284 F.3d 1234 (11th Cir. 2002), the Eleventh Circuit held that 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.