Gillilan v. Jones

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 5/31/2011. (tlh)

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

:
:
:
:
:
:
:
:
:

NO. 5:11-CV-210 (MTT)
ORDER

Plaintiff GREGORY GILLILAN, presently an inmate at Rogers State Prison in
Reidsville, 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.
Plaintiff sues Rogers State Prison guard Jones. As described in a prior case
plaintiff filed in this Court, plaintiff has “balloon surgical implants” in his penis. See
Gillilan v. Sigfreid, 5:11-cv-194 (CAR). According to plaintiff, he must inject the
implants to clean them. Plaintiff alleges that Jones refused this “medical need.” As a
result, he alleges he experienced hemorrhaging and was taken to the emergency room.
Section 1915(g) of the Title 28, the “three strikes rule” of the Prison Litigation
Reform Act, provides as follows:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section 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.
28 U.S.C. § 1915(g).
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 this Court stated in 5:11-cv-194(CAR), plaintiff’s condition may constitute a
serious medical need. Plaintiff has not, however, alleged sufficient facts to indicate that
defendant Jones placed plaintiff in imminent danger or that such danger existed at the
time he filed his lawsuit. Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999)
(prisoner must allege a present imminent danger, as opposed to a past danger, to
proceed under section1915(g)’s imminent danger exception). As noted in his complaint,
plaintiff can inject himself. Although plaintiff summarily alleges that Jones denied his
“medical need,” he does not allege that Jones prevented plaintiff from performing the
injection. Plaintiff’s receipt of prompt medical attention following the incident suggests
that he was not in “imminent danger of serious physical injury” when he filed the instant
lawsuit.
Additionally, venue in this district is improper. The venue provision of 28 U.S.C.

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)(appeal
also dismissed as frivolous on Apr. 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) (appeal also
dismissed as frivolous on May 8, 2007).

-2-

§ 1391(b) provides in relevant part:
A civil action wherein jurisdiction is not founded solely on
diversity of citizenship may ... be brought only in (1) a judicial
district where any defendant resides, if all defendants reside
in the same state, [or] (2) a judicial district in which a
substantial part of the events or omissions giving rise to the
claim occurred ....
28 U.S.C. § 1391(b).
The defendant appears to be located, and all of the events alleged in the
complaint occurred, in Tattnall County, which is located in the Southern District of
Georgia. 28 U.S.C. § 90(c)(6). Accordingly, the proper venue for plaintiff’s claim is the
Southern District of Georgia, not this district.
Title 28 U.S.C. § 1406(a) provides that a district court may transfer a case to
another court where it might have been properly filed. However, the court should
transfer the case only if doing so is in the interest of justice. A transfer of this case
would not be in the interests of justice because
plaintiff has more than three strikes and has failed to allege sufficient facts to indicate
that he is in “imminent danger of serious physical injury.”
In light of the foregoing, the instant action is hereby DISMISSED WITHOUT
PREJUDICE.
SO ORDERED, this 31st day of May, 2011.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
cr
-3-