GILLILAN v. MCCLOUD

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 7/26/11. (lap)

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

:
:
Plaintiff
:
:
vs.
:
:
Captain RODNEY McCLOUD,
:
:
Defendant
:
____________________________________

NO. 5:11-CV-279 (CAR)
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 nonhabeas civil actions are required to pay a filing fee of $350.00, unless they qualify for in forma
pauperis status. 28 U.S.C. §§ 1914(a), 1915. 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 Captain Rodney McCloud in connection with Plaintiff’s
disciplinary proceedings. Plaintiff appears to complain that McCloud approved a sentence of loss
of store and telephone privileges, which was imposed by hearing officer Anderson. Plaintiff also
summarily alleges perjury, falsification of disciplinary reports, and retaliation.
Under 28 U.S.C. § 1915(g), the “three strikes rule” of the Prison Litigation Reform Act, a
prisoner may not bring an in forma pauperis civil action or appeal:
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 162 civil actions in the
United States District Courts, and at least 11 of those complaints or resulting appeals have been
dismissed as frivolous, malicious, or failing to state a claim. See Gillilan v. Davis, 5:11-cv-208
(MTT) (M.D. Ga. May 31, 2011) (listing cases). Plaintiff’s allegations clearly do not satisfy the
“imminent danger of serious physical injury” exception. Plaintiff’s motion to proceed in forma
pauperis is therefore DENIED.
Additionally, venue in this district is improper. The venue provision of 28 U.S.C. § 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 situated in the Southern District of Georgia. 28 U.S.C. § 90(c)(6). As
this Court has informed Plaintiff in prior orders, the proper venue for actions arising out of Rogers
State Prison 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 26th day of July, 2011.

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

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